NOTES

FOR EXAM


Where is more flexibility needed?

Where is more certainty needed?

In Spanking Case, Arbour says vagueness is bad

in offences AND defences. BUT, can total lack of
discretion in defining an offence hurt victims?
(not always victim vs state binary)
Is reasonableness sufficient notice to offender?
Should permission for violence be a clearer
standard? Arbour worries the vulnerable will
suffer from a vague defence here.
Defences exculpate and should allow flexibility,
but we want to limit criminalization, avoid risk of
arbitrary criminalization, etc. Spanking case turns
that on its head and interps defence narrowly, to
protect vulnerable victims. (Compare Moldaver in
ADH)

Harm principle for indecency in Labaye

Insufficient from a feminist viewpoint? Blind to
systemic, non-individualized forms of harm?

For defences where there is a vulnerable victim

involved (e.g. Spanking Case)?
No NEW CML offences, but room for
interpretation, so flexible depends on courts
perception of acts social value / context a risk
that judges subjective views will dominate
on whats criminalized?
E.g. HIV criminalization accomplished
through judicial interpretation of fraud and
consent (Cuerrier, Mabior)
Also new CML offences through omission of
legal duties under ss. 180 & 219(1)(b)?

Harm principle is too vague to be a PFJ, but are

moral reasons better?

Wilson in Perka thinks that necessity can be a

justificatory defence, when theres a conflicting
positive obligation and you do the right thing by
breaking the law.

Courts approach contemporaneity b/t act and

intent with flexibility Could lead to absurd
results otherwise. But not narrow like other
aspects of crim. Could be s. 7 issue?

Jobidon vs Spanking Case Sopinka would say you can use CML to interpret a provision (e.g.
reasonableness in Spanking Case), but not to strike out a whole clause in the provision and render it
meaningless in certain circumstances (e.g. cant consent to serious bodily harm with no social value).

Principles of statutory interpretation:

Presume subjective mens rea unless indicated otherwise (Gaunt) People are presumed to
intend the natural consequences of their actions (common sense inference).
Is the mens rea explicitly defined? intentionally, recklessly, willfully, means, with
intent to, etc.
ASK: Do you need subjective intent re act AND consequence?
How serious is the offence? How much stigma? Imprisonment as a consequence?
The more serious, the more subjective intent is likely for all elements.
** What activity is the legislature trying to capture? **
Where ambiguous after a purposive reading, resolve in favour of the accused (e.g.
Fontaine)
o Strict construction and Charter values presumptions, but nowadays the
principle applies only when theres an ambiguity after determining legislative
intent (Par, Bell ExpressVu)


ACTUS REUS
ACTUS REUS or a guilty act has several components:
o 1 The act is contemporaneous with the intent (Cooper, Williams, Fagan)
o 2 Its physically voluntary (King, Killbride)
o 3 Can be an act or omission (general omission: s. 180 common nuisance; s. 219 crim neglig)
o 4 sometimes must be in certain prescribed circumstances (e.g. no consent; while impaired)
o 5 sometimes must cause certain consequences (e.g. death)
Each component must be proven beyond reasonable doubt.
The elements of the Actus Reus required to be proven are normally defined in the relevant Code provision.


MENS REA
Subjective states of fault require intention and knowledge.
Intent has different meanings (depends on legislative intent what is the law trying to catch?)
o Desire Steane?
o Specifically intended a foreseeable consequence? Buzzanga
o Intent to participate in the act, regardless of desire for the consequence or motive Hibbert
o Intent to deceive and create risk of consequence Theroux, Mabior

From Roach:
Degrees of Subjective Mens Rea:
1 Intent, Purpose, or Wilfulness (Steane, Hibbert, Buzzanga)
2 Intent, Purpose or Wilfulness Distinguished from Motive (Buzzanga, Hibbert)
3 Knowledge only (Beaver)
4 Recklessness (intent imputed when you knew the risk and acted anyway) (Briscoe)
5 Wilful Blindness (knowledge imputed if deliberate ignorance) (Sansregret)
6 Transferred Subjective Mens Rea (s. 229(b))


Intention can be imputed through wilful blindness (Sansregret):
Deliberately failing to inquire when you know there is reason for inquiry.
Knowledge can be imputed through recklessness (Briscoe)
Deliberately chose not to make inquiries after suspicion aroused

Objective states of fault Acceptable constitutionally for some offences less than murder, war crimes.
Central question: How to adjust so that those who couldnt meet the standard arent prosecuted, without collapsing it
into subjective standards.
From Roach:
Degrees of Objective Mens Rea:
1 Who is the Reasonable Person? (Lamer like personal characteristics, but thats rejected in Creighton. Modified
standard is used in defences.)
2 Degree of Negligence? Need marked departure in Tutton, Hundal, Beatty (high standard required by s. 7)
3 Relevance of Subjective Perceptions and Excupatory Factors Perception of accused can be relevant (Tutton)
Subjective mens rea always presumed (Sault Ste Marie)
Constitutional requirements for mens rea outlined in Creighton:
1 Stigma and penalties attached require mens rea to reflect the nature of the crime
2 Punishment must be proportionate to moral blameworthiness of offender
3 Causing harm intentionally must be punished more harshly than causing it unintentionally.

Negligence-based offences
Crown doesn't need to *prove* you had any particular state of mind, but it can rather be inferred it from your conduct if
it's a 'marked departure' from the norm... BUT, when that inference is made, your actual state of mind still becomes
relevant because it could raise a reasonable doubt about whether an RP in your position would have been aware of the
risk (Beatty).

CRIMINAL NEGLIGENCE (s. 219) (Tutton)

Question: Did they show wanton or reckless disregard for lives or safety of others in (a) doing anything, or (b) omitting
something they have a duty to do? (s. 219)
(1) ASK: Did they (a) do anything, or (b) omit something they had a duty to do?

Duties under s. 219(1)(b) = duties imposed by law (s. 219(2)).

Examples: at ss. 215 (child necessaries Tutton), 216, 217 (undertaking Browne)

(2) ASK: Wanton or reckless disregard? Was there a marked departure from the standard of care of a
reasonable person in both the physical and the mental elements of the offence? (R. v. L.J. 2006)
(a) Actus reus: Was the act a marked departure from the norm?
Standard for wanton or reckless disregard is objective, not subjective (Tutton, Waite).
(b) The necessary mens rea may be inferred on an objective basis from the acts of the accused.
BUT still need to ask about the accuseds own perception of the facts, to tell if conduct was
objectively reasonable in the circumstances.
An honest, reasonable belief may be relevant in assessing the reasonableness of the conduct
(Tutton)
Wilson thinks some minimal subjective fault is always required
Lamer thinks its objective but characteristics like youth, education, are relevant.
o

For criminal negligence causing death (manslaughter), see below for analysis.

DANGEROUS DRIVING (s. 249) (Beatty, Roy)

1 - Actus Reus = Beyond RD, was the accused driving in a manner objectively dangerous to the public?
(Beatty)
o All things considered like traffic, etc. manner, not just consequence (Beatty)
o Must meaningfully inquire into the manner of driving as a whole (Roy)
2 - Mens Rea = MODIFIED OBJECTIVE TEST under s. 249 :
(1) - CAN YOU INFER a marked departure from the standard of care? [more than a mere departure]
(Beatty)
(2) - that a reasonable person would have observed in the accuseds circumstances?
* If the trier of fact is convinced beyond RD that objectively dangerous conduct is a marked
departure from the norm, he must then consider any evidence of accuseds actual state of
mind in the circumstance, to see if it raises RD about whether a reasonable person would
have been aware of the risk - Beatty

Dont need subjective mens rea, but reasonable person must have been aware of risk.
Objective test must be modified to give accused benefit of any reasonable doubt.
Must be RP in the circumstances
Reasonably held mistake of fact can possibly rebut the inference of marked departure

An explanation like sudden onset of illness would negative liability if a RP in the

circumstance would not be aware of the risk (Hundal).
Evidence of personal characteristics (age, experience, education) is irrelevant unless it
means that the accused could not appreciate the risk in their circumstances. (Roy)

ABSOLUTE AND STRICT LIABILITY

Always need mens rea for true criminal offences (Beaver), but not necessarily for regulatory or public welfare
offences For these, the fault requirement can be much lower (strict liability) or non-existent (absolute liability).
Regulatory Offences have no mens rea requirement (Wholesale Travel)
If no criminal sanction or stigma attached, and act not prohibited but regulated, no mens rea needed. Can be
absolute liability (Pierce Fisheries)
Only violates s. 7 if it creates stresses beyond ordinary stresses of a reasonable person (Cameron Trucking)
NO absolute liability resulting in imprisonment contrary to s. 7 (BC Motor Vehicle)
Absolute Liability must be clearly indicated by legislature (Sault Ste Marie)
Strict Liability Offences
= Unless legislature makes it clearly otherwise, theres a rebuttable presumption of negligence -- Due
diligence defence available, with burden on accused (Sault Ste Marie)
Public welfare regulatory offences presumptively put onus on accused to show DD - Sault Ste Marie
Public interest must be balanced with interests of the accused
Absolute liability is never assumed, and can NEVER result in imprisonment Absolute liability offences
are an exception requiring clear proof of legislative intent (Ttrault)
KEY: Crown doesnt need to prove negligence; but its open to defendant to raise defence that due care
was taken
Makes sense since often only the accused has the info. Not contrary to presumption of innocence
Reverse onus is a justified violation of s. 11(d) for evidentiary / persuasive burden (Ellis-Don)

PARTIES TO AN OFFENCE?
(1) Did the person actually commit the offence? (s. 21(1)(a))
(2) Did the person do or omit to do anything for the purpose of aiding another to commit it? (s. 21(1)(b))
Not sufficient to show effect of aiding must show purpose, and some knowledge of the nature of the
offence.
Purpose = intent to assist (not motive or desire dont need same mens rea as principal) (Hibbert)
Wilful blindness can substitute for knowledge here if party is deliberately ignorant (Briscoe)
(3) Did the person form a common intention with another to do an unlawful act, and in carrying it out the other
committed an offence that each knew or ought to have known was a probably consequence? (s. 21(2))
Extends party liability beyond the act initially intended.
Generally, must show the party actually foresaw the probability of the resulting offence.
If the offence committed requires subjective mens rea (e.g. murder), then ought to have known is of
no effect (but can still be manslaughter under this section Jackson).
Intention in common = intended the same unlawful purpose (not mutuality of motive, desires)
(Hibbert)

ORDER OF ANALYSIS:
Checklist for HOMICIDE:
1 Must show its homicide (s. 222) (i.e. the actus reus (1) voluntary, (2) *the act caused death* (s. 222(1))
i.e. significant contributing cause (Smithers, Nette).
Was there an independent intervening cause? (Reid & Stratton; Maybin)
[Are there PARTIES to the offence via s. 21(b) common intention? (Hibbert)] If so, do them
separately.]
2 - Culpable or non-culpable? (s. 222(2)) go to next steps
3 What kind? Is it murder? Depends mostly on mens rea Criteria:
o Need subjective knowledge that the intended injury is likely to cause death (Simpson, Martineau).
No intent or knowledge of death? Can be recklessness (Briscoe) instead of intention or wilful
blindness instead of knowledge (Sansregret) - deliberate ignorance if suspicion aroused? If
yes, impute knowledge or intention. If NO, go to negligence below.
o s. 229(a)(ii) - intention to cause requisite degree of bodily harm, coupled with necessary recklessness as
to its effect? (Deliberate disregard for fatal consequences, and concurrent with intent?) (Cooper)
o s. 229(b) transferred intent? killed someone else by accident? (Fontaine)
o s. 229(c) Killed them while pursuing unlawful object, whether accident or not? (JSR)
4 If YES to murder, first degree?
o Was the accuseds action a substantial and integral cause of the death? (Harbottle)
o s. 231(2) planned and deliberate? (considered, not impulsive?) (More)
o s. 231(4) Killed cop? (Prevost, Collins)
o s. 231(5) While committing a listed offence of domination? (Par, Russell)
5 If NO to first degree, but YES to murder, then second degree (s. 231(7)).
6 If NO to murder manslaughter? (s. 222, 234)
o

Unlawful act manslaughter? (s. 222(5)(a))

Was there an unlawful act being committed?
Assault (s. 265)? Drugs? Dangerous Driving (s. 249)?
Did they subjectively intend the unlawful act (not the death itself) AND was there objective
foreseeability of the risk of serious bodily harm that is neither trivial nor transitory (not of risk
of death). (Creighton, Jobidon, Smithers, etc.)
Thin-skull rule applies (Smithers) but need a marked departure.
Accuseds knowledge and capacity to appreciate the risk can be relevant considerations, but not
personal characteristics (Creighton).

Criminal negligence causing death? (s. 222(5)(b))? [See above for crim negligence]
S. 219 Did they omit a duty with wanton or reckless disregard for consequence?
Failed to provided necessaries? (s. 215, Tutton); Failed to use reasonable knowledge in medical
care? (s. 216); Failed to complete an undertaking? (s. 217, Browne))
Objective fault requirement - Necessary mens rea may be inferred on an objective basis
from the acts of the accused. **BUT still need to ask about the accuseds own
perception of the facts, to tell if conduct was objectively reasonable in the
circumstances. (Tutton)

7 If NO to manslaughter (and not infanticide), must be non-culpable homicide (s. 222(4)).

Not an offence (s. 222(3)).
8 IF YES to murder OR manslaughter Available defences:
Self-Defence;
Duress;

Necessity;
Provocation;
Mental Disorder;
Intoxication for murder (evidence of intoxication can rebut the common sense inference of
intention) but NOT for manslaughter (s. 33.1)?

BASIC ASSAULT
s. 265:
Elements: If you intentionally apply force to another, or threaten to do so, without consent, directly or indirectly.
Actus reus: (1) Application of force (direct or indirect); (2) no consent.

Consent cannot be invoked if its acquired by force, threats or fear, fraud, or exercise of authority (s. 265(3)).
CML says consent vitiated for policy reasons where adults apply force resulting in non-trivial bodily harm in
the context of a fight or an activity with no social value (Jobidon).

Mens rea: Intent to apply force; knowledge of no consent

Accused can raise honest belief in consent as a defence to negate mens rea, if reasonable grounds (s. 265(4))
Accused has evidentiary burden but this does not violate s. 11(d) (Osolin)

For sexual assault, see below.

SEXUAL ASSAULT
TEST for Sexual Assault from Ewanchuk (paras 25 ff):
Sexual Assault under s. 271 is an assault under s. 265(1), in which circumstances the sexual integrity of the victim is
violated (Chase, KVB).
1 Actus Reus: 3 elements:
1 - Was there touching? (objectively assessed) (Ewanchuk)
2 Was the contact of a sexual nature?
o Objectively assessed sexual integrity violated? Not about intention or motive here (Chase)
3 - Was there an absence of consent?
o Subjectively assessed from complainants perspective. Matter of credibility.
Need to rely on all the evidence to determine complainants actual state of mind, and
reasonableness will often contribute to credibility. If complainants conduct was ambiguous,
that can be raised here to raise reasonable doubt that she did not consent.

Cannot introduce evidence of complainants past sexual history in order to show likelihood
of consent or attack credibility (Seaboyer, s. 276(1)), UNLESS:
That evidence relates to specific incidents, is relevant, and has significant
probative value not outweighed by danger of prejudice (s. 276(2)).
To determine if such evidence is relevant and probative, use factors in s. 276(3).

o
o

Consent = voluntary agreement of the complainant to engage in sexual activity (s. 273.1(1))
Section 273.1(2) lists situations where NO consent can occur in sexual activity:
Agreement expressed by someone other than complainant? (s. 273.1(2)(a))
Complainant incapable of consenting? (s. 273.1(2)(b))
Accused got consent by abusing position of trust, authority? (s. 273.1(2)(c))
Complainant expresses lack of agreement (d)
Complainant initially consented but then expressed lack of agreement to continue? (e)

OR use s. 265(3) Was consent vitiated through force, threats, fraud, or exercise of authority?
Consent vitiated by fraud if accused did not disclose HIV status, had more than a low viral
load and did not wear a condom (Mabior).

o
o

Cannot consent in advance to sexual activity that will occur when unconscious (R v J.A.)
NO such thing as implied consent in this context. Either she consented, or not. (Ewanchuk)

2 Mens Rea:
ONE KEY QUESTION: Did the accused intend to touch the complainant?
o General intent only need to show that accused intended to touch the complainant (Daviault)
o Subjectively assessed from accuseds perspective Ewanchuk
o Recklessness or wilful blindness can impute knowledge or intention (Briscoe, Sansregret)

Defense: Honest but mistaken belief in consent (Ewanchuk, Pappajohn) A denial of mens rea
o Accused can raise fact that he did not know she didnt consent
o Must show he honestly believed the complainant communicated consent to engage in activity.
o For mens rea, its not about what she wanted but whether she affirmatively communicated consent.

If honest belief in consent is raised, first look for air of reality to the defence:
o Ask whether based on her words and conduct, he believed that she was consenting. In other words,
did the accused honestly believe that the complainant had communicated consent?

CANNOT use honest belief in consent if:

o
o

Situations described above in s. 273.1(2)(a-e) are present

Belief arose from (1) self-induced intoxication; or (2) recklessness or willful blindness (s. 273.2(a))

** Accused did not take reasonable steps, in the circumstances known to the accused at the time, to
ascertain that the complainant was consenting. (s. 273.2(b)).
Cannot rely on silence; cannot continue after a no until you get a clear yes. (Ewanchuk)
Belief itself can still be unreasonable, as long as some reasonable steps taken in the
circumstances (Darrach, Cornejo)
If a reasonable man would not necessarily have taken further steps, then none were required
under (Malcolm MBCA)

In light of the above, if reasonable doubt is raised that accused had valid honest belief in consent no
conviction.

If all criteria for sexual assault are satisfied, other defences? (Probably none we looked at mental disorder?)

DEFENCES Checklists:

Once the air of reality is shown, Crown must prove beyond RD that the defence doesnt apply.
BUT, mental disorder and extreme intoxication (Daviault) must be shown by accused a on balance of probabilities.

AIR OF REALITY test:
Imposes two duties on the trial judge:
(1) to put to the jury all defences that arise on the facts, whether or not they have been specifically raised by an
accused; and (2) to keep from the jury defences lacking an evidential foundation (Abella in Mayuran, citing
Cinous).
Its NOT enough if theres just some evidence.
The test is: whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could
acquit if it believed the evidence to be true. (Cinous)
For defences that rely on indirect evidence or defences like provocation that include an objective reasonableness
component, the trial judge must examine the field of factual inferences that can reasonably be drawn from the
evidence. (Cinous cited in Mayuran)

PROVOCATION (s. 232)
Reduces murder to manslaughter (not acquittal), i.e. removes the minimum sentencing requirements
Requirements for provocation under s. 232 (since Hill):
(1) Was there a provoking wrongful act or insult?
Must be something done pro-actively by the victim Tran)
(2) Objective element: Was it of such a nature that it would deprive an ordinary person of the power of selfcontrol? Contextualized, but not an individualized analysis (Mayuran)
Can consider past history with victim (Thibert).
Cant be based on cultural background if no air of reality or against Charter values (Nahar)
(3) Subjective element: Was accused actually have provoked? (Hill)
Cant just be based on cultural stereotypes Humaid
Both the insult and the response must be sudden Tran
(4) Did the accused act on the provocation on the sudden and before there was time for his or her passion to cool?
(i.e. it was not revenge?) (Tran)
(5) Also, was victim was not exercising a legal right to constitute the insult? (read narrowly)
MENTAL DISORDER s. 16
Can only be raised by the Crown after verdict or if accused raises evidence that puts his sanity at issue (Swaine)
Sanity is presumed unless mental disorder proven on balance of probabilities (s. 16(2)).
Burden of proof is on the party who raises it (so it could be the accused) (s. 16(3), Chaulk says justified under s. 1)
TEST:
NOTE: Existence of a disease of the mind is a LEGAL question, not medical (though medical evidence can
help, and it can include personality disorders) (Simpson)
Is it a disease of the mind?:
Is it: (1) NOT self-induced AND (2) NOT transitory? (Bouchard-Lebrun, Cooper)
Otherwise, its given a large and liberal interpretation any illness or abnormality impairing the
mind (Cooper)
Does the disorder make the accused incapable of :
o EITHER: (1) appreciating the natural physical consequences, impact, results of the act? (Cooper)
o Not about feelings/remorse with respect to the consequences Kjeldsen
o Not about incapacity to appreciate legal or normative consequences (Abbey)
o OR (2) knowing the act is morally wrong in the view of reasonable members of society? (Chaulk).
Focus on what the accused was able to know in the circumstances as he perceived them, not
abstractly (Oommen).

Unfitness to stand trial is a higher bar (s. 2) -- Need limited cognitive capacity to understand the nature, object, or
possible consequences of the proceedings and to communicate with counsel. (Whittle)
s. 672.22 Accused is presumed fit to stand trial, unless shown on balance of probabilities
s. 672.23 Can raise it at any time on reasonable grounds (Court can raise on its own motion)
s. 672.32 Can stand trial later if he becomes fit.

INTOXICATION (CML rule & s. 33.1)

KEY: Did the accused possess actual intent? (i.e. not about capacity but whether intoxication raises a doubt re the
common sense inference that they intended the consequence of the their action). (Daley)
(1) Was the intoxication self-induced?
Test for self-induced intoxication (Chaulk):
o (1) The accused voluntarily consumed a substance which;
o (2) He knew or ought to have known was an intoxicant; and
o (3) The risk of becoming intoxicated was or should have been within his contemplation
If YES, go to 2; If NO, probably just no mens rea
(2) Did the intoxication negative intent?
There are three variations on the defense of intoxication:
1. Common law rule in cases such as Bernard that restricts the defense to offenses of specific intent continues to
apply.
2. Expanded defense of extreme intoxication, as stated in Daviault, applies even to offences of general intent.
(Only RARE must show on balance of probabilities, like insanity)
3. Section 33.1 denies the defense of extreme intoxication to any offence of general intent that involves
interference or threatened interference with the bodily integrity of another (so cant raise intoxication if
the offence is listed in s. 33.1).

NECESSITY = Dire circumstances compelled you to act in a certain way no legal way out (CML rule)
Three-Part Test for Necessity defence (from Perka, elaborated in Latimer):
o (1) Situation is urgent and the peril imminent? (modified objective standard - Latimer)
o (2) Believed there was no reasonable legal way out? (modified objective standard Latimer)
o (3) Proportionality? (NO excusing infliction of greater harm to avert a lesser evil) (objective std - Latimer)

Perka lists 10 principles central proportionality criterion is moral involuntariness

This involuntariness is measured on the basis of societys expectation of appropriate and
normal resistance to pressure
Negligence or crim activitiy doesnt disentitle you to the defence
Its not about dissatisfaction with the law (Morgentaler)
Murder probably never proportional (Latimer)

Elaboration from Latimer on the three parts above:

(1) Imminent danger and (2) no legal alternative = modified objective standard; takes into account the
situation and characteristics of the particular accused person
(3) Proportionality = purely objective; community standard.

DURESS = When the compulsion comes from a person (i.e. a third party) (s. 17 AND CML rules in effect)
1 Does duress go to the mens rea aspect of the offence? (Yes: perjury (Hbert); No: party to murder under s. 21
(Hibbert)) (if yes, use there)
2 If principal offender, use s. 17; If party to offence, use CML defence (Paquette)
Question of whether youre a party or principal is one for the jury (Mena)
From Ruzic, Ryan:
o Is there an explicit or implicit threat?
o Does the accused reasonably believe threat will be carried out? (objective-subjective standard)
o Is there no reasonably safe avenue of escape? (objective-subjective standard) (jury must consider Mena)
o i.e. Moral involuntariness?
o Is there a close temporal connection b/t threat and harm threatened?
o Is there proportionality between harm threatened and harm caused? (objective standard community
expectations)
o Is the accused NOT a gangster?
o For principal offenders ONLY: Is the offence one thats NOT listed in s. 17?
If YES to ALL the above, then duress available.

SELF-DEFENCE = Where the threat comes from the victim (s. 34)
NEW TEST UNDER SECTION 34:
Overall its an objective standard. A high threshold since its about justified killing of others (Cinous).
1 Did accused believe on reasonable grounds that force was or would be used against them? (dont need an assault)

Under old law, Bogue interpreted reasonable grounds for belief and stated that: a person whose life
is in danger is not expected to make the same decision he would make on sober reflection.)
Lavalle: The issue is not what reasonable outsider would have perceived, but what the accused
reasonably perceived given her situation and her experience.
Intoxication? Reilly said its not a bar and can be a factor in inducing honest belief, but belief must
still be reasonable

2 Was the act intended to defend against the force? (subjective assessment Roach)
3 Was the act reasonable in the circumstances? Look to s. 34(2) for factors to consider (non-exhaustive):
o

(a) the nature of the force or threat;

o Under old law, Paice said self-defence is not available in a consensual fist fight.
o Dont need to apprehend immediate danger (Lavalle)

(b) the extent to which the use of force was imminent and whether there were other means available to
respond to the potential use of force;
o [So a duty to retreat? McIntosh (1995) said no such duty; but Druken (NLCA 2002) said
retreat can be relevant factor in determining existence of reasonable belief]

o
o
o

(c) the persons role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
o Intoxication? Reilly said its not a bar, but belief must still be reasonable

(f) the nature, duration and history of any relationship between the parties to the incident,
including any prior use or threat of force and the nature of that force or threat;
o Ptel said that history of threats could be considered in assessing reasonableness.

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the persons response to the use or threat of force; and
o Under old law, Faid said you lose the defence if force is excessive. But now under the new
law proportionality is only one factor to consider.

(h) whether the act committed was in response to a use or threat of force that the person knew was
lawful.

Interpretive guides from old cases:

Cinous: Reasonableness is not exempt from the air of reality test.
But Kong (SCC 2006) says its reasonableness in the circumstances and requires a tolerant approach).
Malott: Need to be careful of using stereotypes of battered women when determining reasonableness of self-defence
claim.

Essay Questions

WHERE ARE THE BURDENS REVERSED?? Find examples and think through, conceptualize
them.




WHERE ARE SUBJECTIVIZED REASONABLE PERSON STANDARDS USED? On what basis?
Moral involuntariness is used as an excuse, theres always room made for an objective
standard Why?
When (and to what extent) do contextual factor play a role in defining the standard?
(Expectations of society vs perceptions of the accused.)

Criminal negligence While standards for negligence-based offences are objective, they
are nearly always heavily modified to take into account the particular circumstances of
the accused. The standard is more contextualized than in civil negligence since it aims
to punish blameworthy conduct. If imprisonment is possible, section 7 requires some
degree of blameworthiness the standard cant be so objective as to capture the
morally innocent.
So no imprisonment can occur for absolute liability. Need at least a due diligence
defence.
E.gs: dangerous driving, negligence,
BUT, for defences the standard is often highly objective. Cannot be excused unless
behavior conforms to community expectations.
o So in defences, once the actus reus and mens rea are established, we





Sexual assault: Does the overturning of sexual prejudices require a more demanding standard
for consent in all circumstances? McLachlins logic in Mabior, J.A

To what extent does this limit sexual choice?
Good to use Charter values to expand the reach of criminal law? Can we apply Charter
values in this way to provocation too? (Berger)


BEFORD How does it change the criminal laws self-evaluation?


Pappajohn Whats the rule? Is it only where you plead actual consent?