Criminal Law: Winter 2009 Exam Guide

R. v. Beatty
(2008), SCC

Dangerous Driving =
marked departure

IMPORTANT

Negligence (causing death

OR bodily harm) =
marked & substantial
departure (modified
objective test)
Other Crimes = marked
departure

Test for dangerous driving: (separating AR and MR) USE THIS

AR: must prove objectively, BARD, that the accused was driving in a manner
that was dangerous to the public, having regard to all the circumstances, include
the nature, condn and use of the place at which the motor vehicle was being
operated and amount of traffic at the time NOT using a marked departure here!
Must fall below standard of reasonably prudent driver

Dangerous driving
causing 3 deaths bc
momentary lack of attn

MR: the conduct amounted to a marked departure from a reasonable person in

the accuseds circumstances, short of incapacity to appreciate the risk or avoid
creating it. The accuseds personal attributes (such as age) are not relevant (but
mental state can be relevant)
Negligence is a form of fault, not actus reus
Activities that require little conscious thought and are done by a substantial
portion of society (e.g. driving) require higher fault requirements cant paint
everyone a criminal, lapses will happen often

Notes:
McLachin +2 = infer MR from AR (i.e. absolute liability offence)
All penal charges require at least a marked departure from the objective norm
Most car accidents happen in a flash -> case seems to imply that majority of crashes will have to be dealt with provincial regulatory legislation
R. v. JF
Are these verdicts
Crim negligence causing death: fault = marked and substantial departure;
Mom abused child and
inconsistent?
child dies. Father does
Failing to provide necessities = marked departure
nothing to intervene.
Thus, doesnt make sense that was convicted of Criminal negligence and not
Father is charged w 2
failing to provide necessities which is lower on the continuum.
predicate offences
See pg. 559 for 3 types of objective fault requirements

CRIMES BASED ON PREDICATE OFFENCES (if A then B offences)

The unlawful act cannot be an AL offence (Desousa).
If it starts out as a simple negligence then it gets bumped up to gross negligence, the lowest fault form in the CC.
Test: Objective foreseeability of the risk of bodily harm in the context of the dangerous act. We dont want to convict someone of manslaughter unless
the orig. Offence is a dangerous one.
Special Stigma: Murder, sexual assault, theft will bump it up to subjective fault.
Case Name Issue/Holding
Reason/Ratio
Facts
R. v.
What is the fault
Part 1: Unlawful act assault
Bystander injured
DeSousa
requirement for the
Part 2: It was objectively foreseeable that throwing the bottle against the wall could
when accused threw
[1992] SCC underlying offence in a
cause bodily harm
bottle against wall.

Criminal Law: Winter 2009 Exam Guide

predicate offence?
OBJECTIVE, we can hold
u responsible for causing
harm even if there was no
fault w regard to that
consequence as long as you
had some fault (If you had
fault for the underlying
offence)
R. v.
Creighton
(1993 SCC)
(part II)

Can you be responsible for

manslaughter?
Same test used

The fault element for an underlying offence is one of objective foresight of

bodily harm. The bodily harm must be more than merely trivial or
transitory in nature
Underlying offence cant be one of absolute liability.

Charged w/ neg.
causing bodily harm.
S. 269

Note: created 2 categories of criminal offenses:

1. special stigma: subjective
2. no spec stigma: objective
Doesnt address what special stigma is. Suggests that if there is flexibility, no special
stigma here bc will soften their blow in sentencing.
You have to objectively foresee harm, not death, in an unlawful manslaughter
case
Test for the fault element for an unlawful act:
1. must be mens rea for the underlying predicate offence (cannot be AL offence)
(must prove the unlawful act and fault element); PLUS
2. Must prove objective foreseeability of the risk of bodily that is neither trivial nor
transitory in the context of a dangerous act

Unlawful act =
trafficking. Ended up
causing death
(manslaughter) while
trafficking. No
intention to kill
anyone.

The minimal fault element for predicate offence is marked departure; Predicate
offences dont always have the same fault threshold it could vary could be gross
negligence or SF
Note: take your victim as you find him If we can find you guilty for a federal or
provincial crime you will be responsible for everything that flows from it as long
as we can show in hind sight that it is objectively dangerous this will not be hard!
Overturned 100s of years of jurisprudence
Wilson thinks we should be able to charge absolute liability offense as predicate offence bc once it becomes a predicate offence, the fault changes
***Know there is a distinction between the unlawful act and negligence. Different tests used
Example: Throw oil in river, want to get rid of it. Evidence shows that it floated down the stream, someone ingests it and dies. Couldnt charge w murder.
Could you try to charge criminal neg (would you be able to show marked and sub dep? - possibly). Going to charge w unlawful act, culpable homicide.
Unlawful act = environmental offence of pollution. Prosecute them on this. This is a strict liability offence.
First need to prove BARD actus reus and mens rea of the original offence
o Then accused must show on a BOP that they acted as a reasonable person Fault element is simple negligence Will be hard to show this
so gets fined

Criminal Law: Winter 2009 Exam Guide

Next we find out that as a result of this conduct, someone dies so we charge person w manslaughter under s. 222(5)a unlawful act, culpable
homicide
o Unlawful act = violation of provincial environmental legislation. This is no longer an environmental offense, it is now a crime
o Elevate the fault element to marked departure Burden of proof switches to the Crown crown needs to show BARD that the conduct was a
marked departure
(So if the unlawful act turns into a predicate offence then the fault and burden of proof changes so just bc you can convict of an environmental
offence, doesnt mean that once it turns to predicate offence, you can convict bc now fault elevated and needs to prove based on this act)
Then need to show objective foreseeability in the context of a dangerous act
SEXUAL ASSAULT
Actus Reus of Sexual Assault:
An unwanted sexual touching.
(1) Involves touching the person; (2) the touching has to be sexual in nature or violate the sexual integrity of the victim; (3) and it has to be in the
absence of consent.
The third aspect is subjective: subjective to the victim and her state of mind.
Mens Rea of Sexual Assault:
(1) An intention to assault, (2) and then knowledge, recklessness or willful blindness on the issue of consent and whether the person was
consenting or not.
Sexual Integrity
Case Name Issue/Holding
R. v. Chase
Distinction bw rape and
[1987] SCC sexual assault

KB Case

Was this sexual assault?

YES

R. v. M
(1995) Mall
in Edmonton

Is there sexual assault w/o

gratification? YES

New Legislation
A. Rape Shield
Can you bring in past sexual history?

Reason/Ratio
Sexual assault is broader than touching of genitals
Test = objective would a reasonable observer view as a violation to the
sexual integrity of the person?
no reqm for sexual gratification and it is not limited to certain parts of
the body
assault is of a sexual nature when the accuseds sexual integrity is
violated
Sexual gratification isnt a necessary prerequisite for sexual assault, as
many times, it is to show domination and power
sexual assault if integrity is violated she was 12!!!

Facts
Neighbor grabs girls breasts.
She fought back and he
attempted to grab ger vagina.
Grabbed son in genital area as
disciple to show him how much
it hurts after he grabbed a boys
12 year old was refusing to
obey parents. Step-father pulled
down her pants and pantis, and
spanked her in mall

Criminal Law: Winter 2009 Exam Guide

Rape Shield provision: tried to limit defenses which attack the victim by saying that the victim is more likely to lie declared invalid huge
outcry
Response: bill 276 which codifies the admitting of past sexual history
o sexual history is allowed in rare circumstances such as personal relationships
o cant go fishing for information, there needs to be something specific you are after and must establish that this evidence is absolutely
necessary
Victim impact stmts accused goes face to face w victim and victim tells how was affected
Case Name Issue/Holding
Reason/Ratio
Facts
R. v.
Does disallowing sexual
SA = stigma crime SUBJECTIVE
Charged w SA and
Darrach
history prevent him from
wanted to introduce
full answer and defense?
allows admitting of evidence of significant probative value that is not outweighed evidence of
complainants sexual
by the dangers of prejudice to the proper administration of justice
history deals w s.
276
B. Consent
Section 273.1: voluntary agreement of the complainant to engage in the sexual activity in question if consent, then NO AR
Section 273.2: no consent is obtained if the accuseds belief arose from: (1) self-induced intoxication; (2) recklessness or willful blindness; (3) failed
to take reasonable steps in the circumstances not an exhaustive list
C. Mistaken Belief in Consent
No consent if:
(1) given by a 3rd party; (2) if person is incapable of consenting; (3) abuse of power; (4) word/conduct show lack of consent (4) change of mind
This list is not exhaustive
Person to take reasonable steps to ascertain consent SUBJECTIVE burden of proof is on Crown to show that person didnt take all reasonable
steps
Case
Issue/Holding
Reason/Ratio
Facts
Name
Pappajohn Cannot argue Honest but
consent = SUBJECTIVE TEST (state of accuseds mind)
Charged of rape. Victim
v. R
mistaken belief here bc
runs out of house naked
In order to argue mistaken belief, you must have taken reasonable steps to
accused argued there was
looking for help. Accused
determine if there is consent if so, then this negates the MR
actual consent not mistaken
argues TJ shouldve put
The accused has the burden to raise this defense but the burden of proof is on
so defense is unavailable
forwards defense of
the Crown
mistaken belief to jury
R. v.
Is it a defense if you thought
Test for SA:
Victim goes in van for job
Ewanchuk there was consent? NO
AR has 3 elements:
interview. She said no to
[1999]
1. Touching = OBJECTIVE sufficient for Crown to prove that accuseds
each of his advances. Ended
SCC
I thought she wanted to have
actions were voluntary
up massaging each other bc

Criminal Law: Winter 2009 Exam Guide

sex (not a defense) and I

thought she gave consent
(defense)

2. Sexual nature of conduct = OBJECTIVE Apply Chase Test Crown

doesnt need to prove that the accused had any MR wrt a sexual nature of his
behaviour
3. Absence of consent = SUBJECTIVE look at victims state of mind no
defense of implied consent

she was afraid

MR: = GENERAL INTENT looking at the accuseds mind (honestly belief of

consent)
1. Intention to touch
2. Knowing of OR being recklessly or willfully blind to lack of consent
MISTAKE
DEFENSES: Mistake of Fact (can result in acquittal) vs. Mistake of Law (no acquittal)
Mistake of Fact: DEFENSE honest mistake as to a certain part of the fact pattern (e.g. thought she consented)
Mistake of Law: NO DEFENSE honest mistake as to what the law is (e.g. didnt know you needed consent by law)
Mistake of Fact and Law: DEFENSE
MISTAKE OF FACT
Negating the MR
Pappajohn leading case
If the offence requires:
The mistake MUST be:
Subjective MR
HONEST mistake, reasonably held; reasonableness is used to assess credibility (Pappajohn); crown must prove this
BARD
Objective negligence requirement HONEST and REASONABLE (R v. Tutton) crown must prove marked departure from reasonable standard
Strict Liability, with due diligence HONEST and REASONABLE, with onus of proof on accused to show that care was taken
Absolute liability
No mistake of fact defence. There must be no jail time possible though. (R v. Hess, R. Nguyen)
Case Name
R. v. Hess;
R. v.
Nguyen
[1990] SCC

R. v.
McLeod
(1954) BC

Issue/Holding
Consent and age

HMB that about person

being a cop negated the MR

Reason/Ratio
A person under a certain age (16) cannot consent, so the defense of mistake
isnt available
Exception is if there is a closeness in the age range
This amnts to an AL offence
Aside Charter Issue here:
S. 7 and 15 violated but not saved by s. 1
must have the requisite fault for the particular crime charged (If you are
charged w X, Crown needs to show that X was intended)
BUT, no need for perfect correlation bw AR and MR u can be convicted of

Facts
Both men were charged w
having sexual intercourse
w a person under 14

Officer in plainclothes
tried to break up a fight
bw kids. Onlooker

Criminal Law: Winter 2009 Exam Guide

CA

R. v. Ladue
[1965] YT
CA

R. v.
Kundeus
[1976] SCC

R. v. Beaver

a lesser offence than the one you are charged w (convicted of assault, not
assaulting a cop)

Cannot rely on HMB bc he

was intending to commit
one crime (rape)

Transferred intent

Problem w these cases: if the act he believed he was committing doesnt have a
lesser included offence, we cant convict bc no MR plus, we cant enter into a
conviction for what he thought he was committing bc there is no AR
an intention to commit a crime, though not the precise crime provides MR
(MR from SA was used to convict on charge of interfering w a dead body)
his mistake was a crime in itself
The defence of mistake of fact will excuse only the morally innocent.
Note: he had the AR and MR for attempted SA so he couldve been charged w
that!
If bring defense of mistake of fact Evidentiary obligation, but you dont have
to do very much
Transferable intent: courts took the intent to sell X and put it together w Y
and convicted him; Regardless, he was trafficking
Note: drug laws have changed since this case. Under the present CC youre only
liable for the offence you are charged w. Courts cannot convict you for a lesser
offence. There were suggestions that a reform should be added whereby you can
be charged with an offence, but if you raise the mistake of fact defence, then you
can enter conviction for the lesser offence if not convicted of the greater offence.
defense may be allowed if mistake goes to the essence of the offense

punched officer telling

him to mind his own
business.

Charged w having sex (or

attempting to) w a dead
person. Argued mistake
of fact that he was too
drunk to know she was
dead
Charged w trafficking
LSD, however, he
thought he was trafficking
a less serious drug.

Thought possessing
powder milk, not cocaine

MISTAKE OF LAW
Mistake youve made isnt about fact, rather something w the existence of the law; idea in the minds of ppl
Section 19 CC: ignorance of the law is no excuse BUT there are some exceptions
Note: Law Reform Commission
- If you made a mistake about the law under which you were charged = big trouble.
- If you made a mistake about one area of law resulting in a prosecution in another area of law = defense (acquittal) bc treats it as a mistake of fact
3 Exceptions:
1. Colour of Right when there is no actual right, and you took it under the misapprehension that you had the legal right (statutory exception)
2. Officially Induced Error (common law defence)
3. Lack of Publication publication (in Gazette) is sufficient notice; defense can arise if change in law wasnt published in the Gazette

Criminal Law: Winter 2009 Exam Guide

Case Name
Issue/Holding
Mistake of Law
R.v.Campbell Innocent
&Mlynarchuk mistake
1972 (AL
TC)

Reason/Ratio

Facts

mistake of law is no defense

She had the MR since she intended to do what she did

Charge for obscene performance

(go-go) believed it was legal
based on another case that was
later overturned

Can be a defence if willful, maliciously, or knowingly is required because of

mistake of law, there was no willful intent or malice
Use mistake of law to mediate punishment, not find person not guilty (given absolute
discharge)

Kokoliades v Kennedy (1911) QC SC: man relied on municipal by-law that allowed
him to perform an act, even though federal legislation banned it was still convicted
Distinguishing bw Mistake of Law and Mistake of Fact
R. v. Prue; R. No mens rea,
Laskin: MoF (Wilson has issues w this), ignorance of suspension = ignorance of fact
v. Baril
case
CC requires mens rea existence of a suspension from driving is a question
[1979] SCC
dismissed
of fact
Richie (dissent): MoL, legal consequences of their initial conviction
Where admin. action required to inform person license has been suspended,
and has not been taken, accused can rely on mistake of fact
Here, ignorance of law upon failure to be aware of automatic suspension
ignorance of legal effect of suspension

Guilty of impaired driving.

License was suspended(prov).
Accused didnt know. Later,
pulled over, charged w driving w
suspended license (fed CC)

hard to distinguish bw MoL and MoF. It depends on the court. If sympathetic

court, and they dont want to find person guilty, will find MoF
Exceptions
R v Custance (2005), MAN CA
Released on bail, reported his address as an apartment his friend had apparently rented which the friend in fact did not
Mistake of law -> accused slept in his car when he realized apartment wasnt available, rather than reporting himself to the police
- Found guilty, given time served
R v Forster (1992) SCC: accused tendered resignation from armed forced and didnt show up to assigned post the next day, even though according to law
she was not officially released from service
Was a mistake of law, not fact

Criminal Law: Winter 2009 Exam Guide

Case Name Issue/Holding

Reason/Ratio
COLOUR OF RIGHT for property offences
R. v. Dorosh s.322 CC
arises in your mistaken belief about the civil law of property or state of facts
2004 (Sask
colour of right
- Honest belief in a proprietary or possessory right to the thing which is the subject
CA)
matter of the theft, or an honest belief in the state of facts which if it actually
existed would at law justify or excuse the act done
can only use the defense if the code allows for it mens rea defence, not actus
reus
can be used for legal or factual mistakes or both
***Burden of proof on the Crown to prove absence of colour of right
R.. v.
Charged w
Must have an honest mistaken belief in law or fact, not morality (Here, Ds
Drainville
mischief (s.
mistaken belief in moral rights, not legal)
[1991, Ont.
429(2))
Test = SUBJECTIVE
Prov. Div.]
- Reasonableness is not necessary element
R v Pratt civil disobedience does not transform illegal actions into legal ones
if charged of any offense from s. 430-446, you will not be convicted IF you
provide that you acted w legal justification or excuse or colour of right
-An honest belief in the existence of a state of facts which, if it actually existed,
would at law justify or excuse the act done (Creaghan)
OFFICIALLY INDUCED ERROR
Levis (City) Charged bc didnt Accused must prove 6 elements on a BoP:
v. Tetreault
take due
1. An error of aw or of mixed law and fact was made
[2006] SCC diligence (SL
2. the person who committed the act considered the legal consequences of his actions
offence)
3. the advice obtained came from an appropriate official
4. the advice was reasonable
5. that the advice was erroneous
6. the person relied on the advice in committing the act

Facts
Bought a van and cleaning
unit in exchange for money
and a trailer -> found out
cleaning unit not
working/liens on the van, so
he took back his trailer
charged with theft
D blocked land to protest the
developmt of the road. He
believed it was wrongfully
taken from the aboriginals in
the 1st place

Official told them a renewal

license would be sent before
license expiration but sent
to wrong address, returned to
sender

Successful defence leads to remedy of a judicial stay, not an acquittal

INCAPACITY
Age
12 is the age of criminal responsibility at CL. The legislation drew arbitrary age lines, so can argue any age bc line is arbitrary.

Criminal Law: Winter 2009 Exam Guide

Children under 12 cannot be criminal responsible but they can be put into rehabilitation programs and kept indefinitely
Mental Disorder (Insanity)
Was known as the insanity defence but is now known as Not Criminally Responsible by Reason of Mental Disorder (NCRBMD) s. 16 of the code
Legal defn doesnt run parallel to the medical defn (Luedecke)
Legal defn = likelihood of reoccurrence and danger
There are 3 points where mental disorders apply in criminal law:
1) At the time of the offence: insanity goes to the mens rea fault requirement and is absent when a disease of the mind is present.
2) At the time of trial: under the rubric of fit to stand trial;
a. The court can evaluate if a person is fit to stand trial at any time before the verdict is reached (s. 672.23)
b. If a person is subsequently found fit to stand trial, they will go to trial and the burden of proof is on a BoP (s. 672.32)
3) At sentencing: can be used in consideration of the sentence given.
Section 16 was a Canadian version of the famous MNaghten case
- Whether or not the accused knew the nature and quality of the act
- The q looks at the time of the alleged offence was this person insane at the time of the offence even though he may now be fit to stand trial?
Section 16 looks at if you have a mental disorder = disease of the mind:
Disease of the mind must cause:
a) Failure to appreciate the nature and quality of the act or perceive the consequences; AND
b) Failure to know that the act was wrong (legally / morally).
Concern: a person charged w an offence w maximum incarceration could be subject to a confinement much longer if found mentally incapable. (Swain)
In response, they are trying to establish caps, which are not in force. However, even if the caps were in force, it may be irrelevant bc once your jail time
is done, you are reassessed and they can send you back to jail. PLUS the purpose is to provide them w health to benefit them, not to punish
STEPS: Section 16 Claim there is a presumption of sanity BoP (onus on whoever raises the defesnse) disease of the mind (1) Nature &
Quality; AND (2) Appreciate the Wrong legal and moral
Case Name Issue/Holding
DISEASE OF THE MIND
Cooper v. R Disease of the mind is a
[1979,
legal concept, not for jury
S.C.C.]
to decide

Reason/Ratio

Facts

there must be a disease of the mind (impairs the function of the mind) AND;
1. failure to appreciating the nature and quality of the act; AND
2. failure to know that it was wrong

Charged w murder of a
patient. Accused had
history of mental illness

Medical expert evidence is to provide an opinion on the condition however,

medical defn legal defn.

Criminal Law: Winter 2009 Exam Guide

Nova Scotia
Case

Fit to stand trial? Yes, but

no

Disease of the mind excludes self-induced states by alcohol or drugs and

concussions
Subsequently determined to be fit, while in mental health regime, he was subjected to high shock therapy.
Problem was that the type of shock therapy that made him fit destroyed large parts of his memory. So he was
now fit to go back to trial, but he had no recollection of the crime committed.
Thus, even though he was fit, he wasnt fit to stand trial.

Problems of deterioration in
care in mental health wards
FAILURE TO APPRECIATE THE NATURE/QUALITY OF THE ACT
R. v. Abbey
Failure to appreciate penal
Failure to appreciate the penal consequences does not go to the MR of the
[1982] SCC consequences = legally
offence, and does not render a person incapable of appreciating the nature and
sane
quality of their act.

the defense of insanity negates the MR what about if AL offence!?

***must show the AR and MR before raising the defense of insanity, but insanity
is argued to negate the MR so how the heck does this make sense! Wilson thinks
insanity shouldnt be a negation of the MR
FAILURE TO KNOW THE ACT WAS WRONG
Kjeldsen v.
No remorse = legally sane
Section 16 is not available to an accused who has the necessary understanding
R [1981]
of the nature, character and consequences of their act, but lacks the appropriate
SCC
feelings for the victim or lacks feelings of remorse or guilt for what they have
done as a result of their diseased mind.
R. v. Chaulk Legally Sane
broadened the insanity defn the defn of wrong in s. 16 includes morally
(1991)(SCC)
wrong as well as legally wrong
Landry

NOT criminally responsible

Lee Case

Dennis

WJM 1999
BC

Legally sane

Confessed to importing
cocaine for trafficking.
Believed there was an
external force protecting
him from getting caught

Psychopaths know their

actions are legally wrong,
and morally wrong, but
feel no remorse.
Ppl thought that they
could acquire
superhuman powers by
killing a stranger

thought he was God, knew there were killing and knew it was against the law
but incapable of knowing what they were doing was morally wrong
although he didnt appreciate that he was doing something wrong, he was fit to stand trial bc he could
instruct his lawyer
mentally ill legally ill
he knew killing was prohibited by law
he didnt appreciate that this act was morally wrong
Schizophrenic. Thought all his coworkers were trying to kill him + nobody could protect him, not even
authorities. Thought he was acting in self defense
Not able to make moral distinction
Burden of proof is on whoever raises the defense on a BoP

2 schizophrenics, had
same delusions.

Criminal Law: Winter 2009 Exam Guide

Disease of the mind doesnt always equal not criminally responsible if

accused knew what they were doing (sophisticated plan here) and knew the
physically consequences
Couldve argued that they maybe werent capable of knowing it was morally
wrong bc they thought they were trying to benefit the world
BURDEN OF PROOF/RAISING THE DEFENSE
R. v. Swain
Can the Crown argue
An accused person should be able to raise their own defense and
1991 SCC
insanity even if the accused shouldnt allow the Crown to take over
doesnt want to? YES
THUS: Crown needs to prove the AR and MR (until after the finding that
the accused committed the act) before raising defense of insanity
losing control insanity
Need to know accuseds state of mind at the time of the offence

Borg

Irresistible impulse
insanity

More 1963
Baltzer
Jackard

Wilson: Crown should have an obligation to raise such defense say if they
know person is insane or killed a person
Irresistible impulse can be significant to help raise defense of insanity, but it
is not a defense alone
Psychiatrist evidence descried condn as depressive psychosis.
His actions was impulsive, not calculated, considered or planned so was
convicted of the lesser offence
if able to show that although u killed, and that although you may have had
some sense that you were killing, that your mental state didnt allow you to
form the intent to kill, may allow a charge of manslaughter
if person viewed actions differently than they actually occurred, defense of
insanity may be relevant

Extravagant plan to
hijack a bus in order to
take over the world

Thought evil spirits were

after his family and the
only way to protect them
was to do something
unusual (eg. Cut his wife
w a knife, swing child
around his head).
Charged w assault

Person shot and killed

wife

AUTOMATISM
Negates the AR not the MR
Test to distinguish automatism from insanity: What is the likelihood of reoccurrence
Non-insane automatism (external factors; unconscious but not bc of a DoM; ) vs. Insane Automatism (Internal factors; unconscious bc of a DoM)
When can you argue involuntary act and automatism:
1. Physical blow to the head = pure case of automatism and can lead to involuntary actions
2. Sleep walking = automatist state and can lead involuntary actions = can get an acquittal

Criminal Law: Winter 2009 Exam Guide

3. Involuntary Intoxication = involuntary act

4. Unconscious bc you drank too much = issues is if your act is voluntary
a. complete defense if no voluntary act
b. Unless offence involves an assault = voluntary
5. Epilepsy = depends on the circumstances
6. insulin- hyper-glycaemia states = External; can enter into a trancelike state and carry physical acts that are unconscious which has been recognized
by courts
7. Unconscious when driving, ran over, someone but you were told not to drive and still did = voluntary act bc you voluntarily created a dangerous
situation = reckless
Case Name
Grant (BC)

Issue/Holding
Unconscious bc seize
rendered him guity
ONLY BC ignored
medical instructions

R. v. Rabey
[1977, Ont.
C.A.]

Psych said R suffered

from a psychological
blow at the time but
was not DoM and
unlikely to reoccur.
HELD: no dissociative
state, just rage but if dis
state, then caused by
DoM

Reason/Ratio
G drove in total defiance of medical information that he shouldnt drive bc his
epilepsy wasnt under control
IF you dont take medical precautions, and cause damages bc unconscious,
will be found guilty
usually, will not be guilty bc involuntary act
TEST of non-insane automatism:
1. emotional shock render you unconscious
2. event must be extraordinary high threshold
3. the average person would reasonably suffer that type of reaction
makes distinction bw transitory states caused by external causes (non-insane)
AND those caused by circumstances that arise from personal psychological make-up
of the person, which creates an inability to deal w everyday stresses (internal case =
disease of the mind)
the normal everyday disappointments and stresses of life dont count as external
factors but dont meet the test of non-insane automatism bc #2 and #3
Strong Dissent (becomes the law):
External and internal stnd is wrong doing this violates criminal law:
1. Reversed presumption of sanity they said that if you cant point to external
cause than it must be internal and insanity onus should be on the Crown not the
accused
2. Involuntary Acts- shouldnt be criminally responsible if the act is involuntary
3. Disease of the Mind- shouldnt be committed to institution for the criminally
insane unless he suffers from DoM in need of treatment or there is a likelihood
of recurrence evidence here that chance of reoccurrence was minimal
IF likelihood of reocurrence DoM;

Facts
Epileptic seizure while
driving. Caused collision

R was dissed by a girl

who he liked so he
bashed her over the head
w a rock under a
stairwell, then tried to
strangle her to death.
Went into dissociative
state

Criminal Law: Winter 2009 Exam Guide

IF recurrence is unlikely non-insane automatism

sleeping walking DoM

R. v. Parks
[1992] SCC

Factually unique case and not valuable as precedents. Would be decided differently
today
R v. Stone
(1999)(SCC)

Changed test for noninsane automatism

follow this

TEST: Reverses the Burden of proof to accused on a BoP

1. Accused must make the automatism and involuntariness assertion and call
evidence to prove it
a. Evidence can come from: Bystanders, severity of the triggering stimulus,
medical history, motive for crime,
2. TJ should start w the position that the condn the accused claims results from a
DoM Accused then has burden on a BoP of establishing that the act was not
bc of a mental disorder Judge must determine whether the evidence in the
particular case takes the condn out of the disease of the mind category

P sleep walking drives to

in-laws house. Gets knife
from kitchen, strangles
father in-law, then stabs
mother
Wife is constantly
verbally abusing S. S felt
a whoosh sensation and
when he regains state of
mind, realizes that he
stabbed her 47 times

INTOXICATION
- Partial Defense: you will be charged of the lesser offense (eg. if you murder someone and pass intoxication test, youll be charged w manslaughter
- Only available for specific intent crimes
Specific = (1) murder, (2) robbery, (3) break and enter and (4) aiding and abetting one of these specific intent offenses defense
- unlawful object must be distinct (eg. punching in head isnt unrelated to the possibility of death)
Not Specific Intent (General) = (1) sexual assault, (2) manslaughter, (3) mischief not a defense
Note: if the underlying offense is one of specific intent, then you can use defense of intoxication to negate MR for the underlying offense. WILSON
thinks crown could avoid all this by charging criminal negligence instead of a predicate
Case Name Issue/Holding
Reason/Ratio
Facts
Bernard
Sexual assault
General Intent only intent involved related solely to the performance of the act in
Sexual assault causing
requires proof of
question w no other ulterior or purpose
bodily harm
general, not
Specific Performance of AR coupled w intent or purpose going beyond the mere
specific intent
performance of the question
Creba
s. 229c is constitutional w crebas revision Dont need to intend bodily harm
unlawful object must be distinct (eg. punching in head isnt unrelated to possibility of
death)
Used this bc no intent, so cant be charged under s. 229a
Daviault
Not guilty bc no
Not a case of intoxication (which isnt available for sexual assault), rather involuntary act Self-induced drinker to
[1994] SCC voluntary act
point of
Note: alarming decision so in respond, Parliament passed s. 33.1 (this is constitutionally
unconsciousness
valid) if you are charged w an offence which includes any form of assault, if your

Criminal Law: Winter 2009 Exam Guide

Penno 1990
SCC
CHECK
SPELLING

unconscious act was caused by voluntary consumption, no defense!

Argued that there needs to be specific intent to have care and control while impaired, which means that
intoxication was a defense defense for drunk driving is cant charge bc I was drunk!
SCC: you got us at law, but this is bad public policy and rule in this case that having care and control isnt
specific intent

Charged w having car

and control of vehicle
while impaired.
Defense, I was drunk