APPROACHING FACT PATTERN: power to counteract a danger that one has oneself created. then vitiated.

nger that one has oneself created. then vitiated. Could also ask whether particular type of sexual
Actus Reus + Mens Reus – Defences = Criminal Responsibility Omission only relevant if you COULD have done anything activity voluntarily agreed to (BUT does not include qualities of
1. AR: See if the actus reus is made out about it. Tell jury A had a ‘legal responsibility’ rather than duty. the physical act, such as birth control measures or the presence
1) Read the provision in the CCC Act or Omission? Cooper (1993): (SCC endorsement of continuing transaction) of sexually transmitted diseases, have to go to fraud)
IF OMISSION: Crown must establish that a legal duty existes: Look for moment of intent: sufficient that he knew he was CAUSATION – 4TH ELEMENT AR:
s. 215, 216, 217 and 217.1
causing her bodily harm and knew it was so dangerous that she Causation: Some offences, AR includes a specific outcome.
- Crown must establish legal duty NOT MET
might die – the intent and the act of strangulation coincided at 2 elements: factual cause (logical link between the accused’s
IF ACT: (crown shows factual causation, legal causation,
intervening act) some point. Intent need not have continued through the entire conduct and the prohibited consequence  But for question)
2. MR: see if the mens rea is made out (should list in code, if time it took to strangle her, during which time he blacked out) and legal cause (whether this causal connection is sufficiently
nothing – rare – then full subjective MR – regulatory presume (yay we found a moment where there was intent – so guilty) strong to support criminal liability
strict liability), check annottions Meli:continuing transaction can be long, causation + intent, cliff). The crown must prove both factual and legal causation.
3. Defences: on Crown to establish AR and typically on crown to R v Bottineau- intent (MR) and omission overlap AR: Murder Winning(1973): Offence of obtaining credit by false pretenses,
establish MR. Accused can then introduce a defense, so long as of grandson. Not on Crown to point to the moment in time when but would have awarded credit anyways. So not obtained BY
there is evidence which supports an air of reality. The Crown it dawned on the appellants that their conduct would probably false pretenses. Lying on her application, but the bank
must disprove the defense beyond a reasonable doubt. result in death. Just prove at some point in time during that didn’t use that form so there was no factual causal link (B4)
Party Provisions: have their own AR and MR s.21(2). course of conduct, each accused knew death was the probable Smithers 1978- Factual – causation + manslaughter: The
1) AR: commit an offence in carry out some any unlawful consequence of the harm their abuse and neglect had caused. answer to the factual question can only come from witnesses. It
common purpose. Williams: exposing victim to HIV (AR of endangering life has nothing to do with intention, foresight or risk – but can look
2) MR: knew or ought to have known that carrying out that
through aggravated assault) - charged with attempted aggravated at all surrounding circumstances + evidence. BUT legal cause:
purpose could lead to the probable consequence of committing
assault. RD Crucial problem of the Crown’s case: there was first Even if the unlawful act, alone, would not have caused the
the offence.
PP  MURDER or MANSLAUGHTER endangerment but no intent, and then intent but possibly no death, it was still a legal cause so long as it contributed in
• In order to have the MR of murder the person accused of endangerment (might have contracted HIV by then). Problematic some way to the death. Smithers establishes a very low
aiding and abetting would have subjective foresight of death. b/c the AR + MR may not have coincided. To constitute a crime threshold for causation for cases not first degree murder=
• In order to have the MR of manslaughter it must have been at some point the AR + MR must coincide (strict application) sufficient causation exists where the actions of the accused
OBJECTIVELY foreseeable to the accused party that their Failure to prove endangerment of life was fatal to the prosecution were “a contributing cause of death, outside the de minimis
co-accused act would cause non-trivial bodily harm in this case of aggravated assault but it is not fatal to a conviction range.”(manslaughter charge) In cases not first degree
Kikkik/background: murder, criminal negligence and abandonment for attempted aggravated assault. murder (more stringent test here). Immaterial that the death
(different perspectives/ stories)(flaws with modified objective VOLUNTARINESS (a required element of AR) was in part caused by a malfunctioning epiglottis. no burden to
standard: how you view their culture and circumstances, “revert to Did they have no other choice?: The criminal law assumes prove intention to cause death/injuryonly intented to kick. Intent
earlier age and try understand her life”)( what informs the background people operate in a state of consciousness. 1) conscious 2) it what you add to make someone guilty of murder.
factors? previously relocated)(translators, changed some of the control of action - free will & meaningful choice (can also Cribbin 1994: (charter challenge but is compliant, still involves
language)(judged by her culture vs. circumstances been placed
stretch it to moral involuntariness – i.e. Ruzic - expansion). fault of accused, not morally innocent, ok with s.7) If a person
in)(main food source did not appear)(what kind of extreme
Larsonneur 1933: ex. of improperly ignoring the voluntariness commits an offence, in circumstances where a RP would
circumstances does the state push us into)(“necessity)(1P: murder in
the north with 3 dead bodies).(provocation = manslaughter, SD = not component of the AR (No control over act of returning to foresee the risk of bodily harm (neither trivial nor
guilty). (K to survive went to Padlei trading post). England because deported back there by another state) transitory) and offence is at least a contributing cause,
BURDEN OF PROOF Kilbride 1962: (NZ not displaying license) Had no opportunity (outside the de minimis range) of the victim’s death, then
golden thread of the presumption of innocence the crown has the to take a different course. The omission to carry the warrant was the person is guilty of manslaughter.
persuasive burden BRD in a criminal trial reinforced by s11(d) of the not within his control, thus no voluntariness, and no criminal Blaue: well-recognized principle that one who assaults another
Charter. (3 exceptions: reverse onus, persuasive burden (NCRMD), air liability. (not voluntary, therefore elements of AR is missing, must take his victim as he finds him (refuses transfusion)
of reality evidentiary burden for defences) not guilt). Must be shown to be responsible for the physical Harbottle 1993 – different causation standard murder p.471:
Woolmington – first articulation to jury ingredient of the crime (separate from any need to prove 1st degree murder: “death … caused by that person” (to limit
Oakes: a reverse onus provision that if found in possession of drugs MR) Must show there was some other course open to him. this phrase to those only that physically caused death would be
an accused must prove no intent to traffic offended s11(d). (mandatory King 1962: wasn’t given a choice because didn’t know that too restrictive  “caused” broad enough to include both
presumption no, permissive ok) (BOP guilty vs beyond a reasonable this would be a result of him driving anaesthetic. Can be no AR perpetrators and those who assist in the murder. 5 part test
doubt guilty  what standard you are holding the trier of fact to)(can
unless it is the result of willing mind, at liberty to make a for guilty of murder when contributing – crown must
this approach be saved by s.1?)
choice or decision. (makes choice morally not your own) establish BRD: 1) that actions of the accused form an
Oakes test - pre Q: was it prescribed by law?
Step 1: Does the offending law pursue a pressing and Ruzic 2001: expansion beyond physical voluntariness essential, substantial and integral part of the killing of the
substantial/significant objective? Criminal responsibility can only come from acts resulting from victim. (holding legs down) + no 2) intervening act of another
Step 2: Is the law proportional? Examine 3 factors the choice of a conscious mind and an autonomous will. which resulted in the accused no longer being substantially
1. Is there a rational connection (exits) Principles of voluntariness given constitutional status in connected to the death of the victim; 3) Must be guilty of at
2. Minimally impairs the right? Daviault (conviction without volition would infringe s. 7 least one enumerated offence of domination (forcible
3. Proportionality between effects and objective rights). The absence of voluntariness is always a full defence confinement here- s.231(5)) and 4) guilty of murder and 5) the
Whyte (1988): Asking whether can be convicted if there is evidence to a crime. Element of voluntariness may sometimes overlap crimes of domination and murder were part of the same
even if not beyond a reasonable doubt. Requiring different burden of both AR + MR (especially when looking at moral transaction.
proof for any element of an offence unconstitutional. Violates 11(d) involuntariness, moral choice). (not having another moral Nette 2001: did not extend Harbottle causation to second-
but works for policy reasons. (drunk driving and mandatory choice). V. Policy: Cannot justify the stigma/burden of criminal degree murder. need a clearer explanation for jury - in positive
presumption that drunk in driver’s seat then proven that an accused had responsibility without voluntariness. terms - “significant contributing cause” (can still use “beyond
care or control of a vehicle – the accused is the one responsible for
OMISSIONS (ACT OR OMISSIONS 2ND AR ELEMENT) de minimis”). Says something different in the requisite degree
showing otherwise). from proof of the basic fact, flows a mandatory
There is no general duty to be a good Samaritan, or to act, of participation of the accused in the offence. (didn’t meet 1 st
presumption, which is rebuttable through satisfaction of legal burden.
Downey 1992: looking at evidential burden placed on A. Fact that intervene or report a crime. the criminal law will not punish for degree standard so dropped down to meet this standard).
someone lives with a prostitute does not lead inexorably to the a mere failure to act, unless a duty to act has been imposed by CAUSATION + INTERVENING CAUSES
conclusion that the person is living on avails – BUT under the charge statute or common law. To be guilty of an omission, you must Pagett: intervention of a 3P not in concert with the accused,
A. responsible for providing evidence to the contrary. have a positive legal duty to act. (legal duties in may have the effect of relieving the accused of criminal
Mandatory presumption: uses evidence of ONE thing (living with a s.86,127,129,180,215-217,220,250,263) responsibility. (grabs girl as bodyshield). Must be regarded as
prostitute... something that is NOT a crime) as evidence of a 3 categories (now codified) of exceptional circumstances a voluntary act independent of the wrongful act of the
DIFFERENT thing (living off the avails of prostitution...which IS a where there’s a legal duty to act (a positive duty to act): accused. Can’t use SD when you caused the danger to begin
crime). 11(d) – infringed when liable to be convicted despite the (1) Relationships of dependency (parent-child, dr-patient, with. If someone carries out a legal duty the necessity of which
existence of a reasonable doubt. If accused required to establish jailor-prisoner) creates a duty to provide the necessities to is caused by the accused and causes harm won’t take away
(prove or disprove) on BOP elements of an offence contravenes children, spouse, and dependant) (215)(high standard, i.e not liability of accused. Does not have to be the one that fired the
s.11(d). Was justifiable under s.1 due to vulnerability of prostitutes. girlfriend? Browne) shot/ struck the blow that was the immediate cause of death to
Reasonable limit on the presumption of innocence.
(2) Undertaking to do something (Browne), if omitting to do be charged with the principal homicide.
Permissive presumption: optional as to whether the inference of the
it may be dangerous to life (217) JSR 2008: “But for” your risk creation the decision to engage
presumed fact is drawn following proof of basic fact
Legal burden: presumed fact must be disproved on a balance of (3) Duty to use reasonable care in dealing with dangerous in a gun fight on a crowded street and the resulting exchange of
probabilities instead of by the mere raising of evidence to the contrary objects (like firearms) or performing dangerous tasks (like bullets, Ms. Creba would not have been killed(analogy to drag
(Evidential burden) heart surgery) (216) racing) As each driver in effect induces the other to drive in an
Keegstra 1990: Reverse onus “defence of truth” provision in the Hate- (these are very general offences? May not be really codified) unlawfully unsafe manner, each is taken to assume any
Promotion. A provision that might have been intended to play a Browne 1997: if you undertake to do something and omitting to consequential risk within the ambit of the danger created.
minor role in providing relief from conviction will none the less do it may be dangerous to life you can b guilty of an offence by Menzes: BUT if withdraws from the race before crash and B
contravene the Charter if the provision (such as the truth of a omission b/c you have a positive duty s.215. undertaking? No. KNOWS of abandonment then not part of cause.
statement) must be established by the accused. Ex of. Statutory Acquittal. Promising to take someone to the hospital does not Maybin 2012: whether the subsequent assault by another person
presumptions which infringe s 11(d) may still be justified pursuant to constitute a legally binding undertaking. High threshold. (the bouncer) constituted an intervening act that broke the chain
s. 1. Standard: undertaking must be clearly made + binding intent. of legal causation. Still legally caused death if : 1) the general
Lifchus 1997: How to instruct the jury on ‘proof beyond a CL duties - Goes against idea of codification: nature of the intervening act and the accompanying risk of
reasonable doubt’- a special definition in CL (Crown must show you
Popen1981: duty of parent to take reasonable steps to protect harm were RF; AND 2) the act was in direct response to the
this). The term “reasonable doubt” is grounded in reason and common
their child from illegal violence that is foreseen/ought to be. appellants’ unlawful actions. (BUT difficult because exactly
sense. It is more than probability, but not certainty. If you are sure the
accused committed the offence, you must convict; if you think he is You can be charged for the omission of a legal duty: what is RF and what is not? i.e. judges disagree here) Still
only “probably” guilty, you must acquit. Not based on criminal negligence 219-21:causing death and bodily harm must have underlying fact Q – of significant contributing
sympathy/prejudice. Urbanovich: s220, the mother of a child who was killed by the cause of the victim’s death? AND “intentional, independent
Starr (2000): (majority says Lifchus standard is a list and have to hit abusive father was guilt for failing to act (legal duty to child) act?” (intentional act of a 3P acting independently can
every point) (must be explained.) (didn’t say special legal meaning) s.180(2) common nuisance: Sentencing for failing to meet a sever/overwhelm the impact of accused’s actions). (Factual
ACTUS REUS – CONTEMPORANEITY + VOLUNTARY legal duty imposed by 215, 216, 217 (or CL) causation = “But for”) Not limited to the direct and immediate
Criminal responsibility = actus reus + mens rea + no lawful Thornton (2003): the court uses s180, common nuisance, to cause, nor is it limited to the most significant cause (Nette,
excuse/justification (i.e. defence) create a legal duty to criminalize donation of HIV+ blood. SCC Smithers). Legal causation = whether actions were sufficiently
Actus Reus: requires: (1) physically voluntary (2) act or wanting to ground liability in CODE. Can ground in 216. (left connected to a harm to warrant legal responsibility.
omission, (3) sometimes in proscribed circumstances and (4) unaddressed whether can ground in CL) Legislated causation requirements: acceleration of death, 228
sometimes causing certain consequences. Cuerrier 1998: BUT HERE Court created and imposed a can’t cause death of a human being solely by influence of the
Contemporaneity AR+MR must coincide. Must be some duty of disclosure, resembles the creation of a CL duty (but mind but if kid or sick person by wilfully frightening. Specific
temporal overlap. Strict then absurd, be flexible/ common sense. surrounding need for consent). limits on legal causation are articulated in the following CCC
‘concurrence at some point’. Continuous transaction approach. Beardsley: the court found that he had no duty to aid a woman sections: 222(5)(6)(homicide – cause death by threats or fear of
Fagan 1969: being charged with assault. not necessary that MR who was not his wife. violence or deception); 224 (death from no treatment); 225; 226
should be present at the inception of the AR: intent can be CIRCUMSTANCES - 3rd ELEMENT AR: (if going to happen anyways still guilty);
superimposed upon an existing act. Difference between complete sometimes need a circumstance to make the act criminal. MENS REA – charter requires some fault element
and continuing acts. Act of the appellant complete at moment of Mabior 2012: looking for precise circumstances when failure look for words that signal the necessary mental element
time when the car wheel came to rest on foot? or continuing act to disclose HIV status vitiates consent and converts sexual (different for different crimes). Presumption in favour of
operating until the wheel was removed? - used words indicating activity into a criminal act/ causing significant risk of serious subjective fault that can only be displaced by Parliament with
the intention of keeping the wheel in that position bodily harm. (Cuerrier test for fraud vitiating consent = clear language (ADH) Whether the language used in the
Act does not need to be criminal at inception (can become) Crown shows BRD 1) a dishonest act (lies, failure to disclose) creation of a statutory offence imports:
Miller (1982) – later omission and MR:(squatter, mattress, 2) deprivation (have actually deprived them of the right to be full mens rea (intention, knowledge or recklessness, wilfull
cigarette, moved to a room) Look to the act as a whole to find safe, the right to chose not to be exposed to this actual risk)  blindness) (i.e. need full mens rea for murder)
both AR and MR. An unintentional act followed by an limiting: significant risk of serious bodily harm (seriousness X Fault element short of mens rea (objective): negligence
intentional omission to rectify that act or its consequences can be probability). Should be read as requiring disclosure of HIV if criminal negligence specifically in code (test is both subjective
regarded as a whole as an intentional act. D should not escape there is a realistic possibility of transmission. If no realistic + objective: want evidence that the particular accused neither
liability merely because the last thing that happened in the possibility will not constitute fraud vitiating consent. foresaw nor desired the particular outcome BUT also if
relevant story was an omission on his part. ONLY when reality Hutchinson 2014: Mabior/Cuerrier test  Deprivation, or reasonable person would have foreseen and taken precautions to
and common sense require. Important consideration: an element “harm,” risked by Hutchinson’s actions (poking holes) was prevent the loss and damage being sustained) OR penal (when
of adoption on the part of the alleged offender of what he has depriving a woman of the capacity to choose to protect herself you see words such as careless or negligence – duty based
done earlier by what he deliberately or recklessly fails to do from an increased risk of pregnancy by using effective birth offences included here). Doesn’t feel like endangers life
later. Actually omitting to take measures that lie within one’s control. Aggravated sexual assault found. Consented to sex, triggered by negligence or carelessness)
“strict” liability (C proves AR BRD and then onus on A to
advance a due diligence defence p. 42)(Reverse onus held to
be constitutional (Wholesale Travel)(Default for regulatory
offences (Sault Ste. Marie) – e.g. breaching securities
regulations, environmental offences
Absolute liability (no fault): Once the Crown proves AR BRD,
liability attaches. No defence can be based on an absence of
MR. CAN ONLY applied to Minor in stigma, minor in penalty
offences –efficiency purposes (e.g. parking offence) Not
permitted when potential loss of liberty (BC MVA).
STEP 1 + 2: Look at words of provision and then case law
Steane  Lewis principle: separating out intent and motive
(WWII radio motive (ulterior intention – which translated
into narrow, specific intent) to save family BUT intentional
acts to further Nazi agenda (i.e. his exercise of free will). Man
is taken to intend the natural consequences of his acts; if,
therefore, he does an act which is likely to assist the enemy,
it must be assumed that he did it with the intention of
assisting the enemy. BUT this was a specific intent offence so
crown had to PROVE specific intent BRD instead of inferring
it. B/C charged with “doing acts likely to assist the enemy with
intent to assist the enemy.”
Intent = exercising your free will to do something  Motive =
the ulterior intention which causes that exercise of will. Motive
can be relevant and admissible, but is not required and is not
part of the mens rea. (STEANE shows how easy these are to
confuse in specific intent offences – probs a duress case)
Hibbert: MR for party provisions: “purpose” (liability for a
person who does anything for the purpose of aiding someone to
commit an offence). Purpose in this case is synonymous with
intention; does not mean he had to actually desire the
outcome. For “the purpose of aiding” = means intent, and
captures both direct/indirect. To find MR you don’t need to
find desire for the outcome. Person who carries out the AR
of a criminal offence in response to threats will most often
still have the MR for that offence. Depends upon what the
mental element of the offence in question happens to be (i.e.
whether as a matter of logic the presence of coercion would
have a bearing on the existence of MR) facts of the particular
case – very rare. i.e. “Doing acts likely to assist the enemy with
intent to assist the enemy.” Party provisions (21,22) ARE NOT
one of the exceptions MR cannot be negated by duress.
Buzzanga and Durocher: wilfully = intent (subjective).
Wilfully means “with the intention of promoting hatred”, and
does not include recklessness  “wilfully” (intentionally)
promoted hatred only if: (a) their conscious purpose in
distributing the document was to promote hatred against that
group, or (b) they foresaw that the promotion of hatred against
that group was certain (not a risk) even if purpose was actually
to achieve purpose of obtaining the French-language high
school (Willfully: think in terms of consequences, did an
action they KNEW would end in a particular result, doesn’t
have to be main purpose). MR satisfied as long as the
outcome was intended or achieved through recklessness,
however, including the term "willfully" implies that
recklessness will not suffice to prove the necessary MR
unless recklessness is also mentioned in the provision.
Tennant and Naccarato: Common sense inference - Sub MR:
look at what a RP would have anticipated in those
circumstances and then if using a subjective mens rea then this
can be used as EVIDENCE of what the accused would have
anticipated in the same circumstances. BUT must carefully
consider the evidence that points away from it as well. When
the test is objective: what a RP should have anticipated forms
the basis of liability (also applies to omissions  what would
RP have anticipated from the omission) (PICKED UP in ADH)
R v ADH 2013: What is the fault element in s.218?
Cromwell (apply SF): presumption in favour of subjective
fault (unless clear language). concerned with what was in the
accused’s mind at the time. But Even if SF does not mean that
objective considerations are irrelevant = What a reasonable
person would have realized or known may be of value in the
determination of what the accused actually thought. (common
sense inference). 5 Categories which rebut SF presumption
& require objective mens rea: (1) w/ word “dangerous” (e.g.
Hundal, dangerous driving) (2) “careless” (e.g. Findlay,
careless storage of firearms) (3) “Predicate” offences
(subjective mens rea attaches to one part of the offence,
objective to the other – De Sousa (4) Criminal negligence (5)
duty-based offences (s. 215, Naglik – objective fault element)
B/C SF ensures that only those with a guilty mind are punished.
POFJ. MR NOT proved BRD Moldaver: apply obj. fault: this
charge is same as a duty based offence (s.218 offence of child
abandonment). We want a minimum standard of conduct +
actually Cromwell this does fall into one of your presumption
rebutting catergories (duty) (same as s.215 to provide
necessaries of life to kids duty). So penal negligence is the level
of fault required (objective mens rea). Crown must show the
conduct of the accused represented a marked departure from the
standard of care required by those circumstances (as in Naglik).
This provision is meant to protect kids so common sense
suggests that Parliament would not provide accused persons
with a host of defences based on their individual characteristics
(looking what the purpose). Under a penal negligence
standard, a mistake of fact that is both honest and
reasonable affords a complete defence. Thus, an obj. MR
standard does not punish the morally blameless. In the present
circumstances, the trial judge found that the respondent
honestly believed that her child was dead at birth and that
this belief was objectively reasonable. As such, she was
entitled to be acquitted based on the defence of honest and
reasonable mistake of fact. (MR proven BRD but has D misake)
Direct vs Indirect Intent: intent/purpose to bring about the
harm (actual, subjective intent to carry out the crime) vs indirect
when intent to bring about something else BUT knows or
foresees that the proscribed harm is certain or substantially
likely to occur.
MR + RECKLESSNESS + WILFULL BLINDNESS
Sansregret 1985: (sex with violent ex, 2 break ins). Negligence
= failure to take reasonable care (objectively measured).
Recklessness = sees the risk that his conduct could bring about
prohibited conduct, but proceeds nonetheless (element of
subjective – what you need to find to assign criminal
negligence)(acting on knowledge of risk, that could bring
about criminal harm - can use mistake of fact)(*the minimal
subjective fault that can be read into offences that contain
no explicit fault requirement (Buzzanga)
Wilful blindness = (subjective/ but reasonable) sees the need
for inquiry but declines to do so because he prefers to
remain ignorant. Deliberate failure to inquire after first visit –
knowledge is imputed (cannot use mistake of fact). Even if the
accused was not subjectively aware that there was no consent,
he was wilfully blind to the lack of consent.
Briscoe 2010: Wilful blindness: beyond mere failure to
inquire which can be criminal negligence, More like
deliberate ignorance: an actual process of suppressing a
suspicion. Knowledge substituted when: suspicion is aroused
to level which calls for further inquiry but deliberately choses
not to inquire. Mens rea needs 2 components knowledge and
intent for party provisions (I intend to help you, I know what
I’m helping you with) (the word “purpose” in the offence).
Duong 1998: the Code (s. 23(1) accessory of the fact) says
accessory must have knowledge of “the” specific offence
alleged (not just generalized knowledge that a crime was
committed)(will impute specific knowledge needed for this
offence from willful blindness)
MR - OBJ. STANDARDS OF FAULT:
Hundal 1993: MR for penal negligence = marked departure
from SOC of a RP in the situation) would be inappropriate to
apply a subjective test in determining whether an accused is
guilty of dangerous driving. MR for the offence of dangerous
driving should be assessed objectively but in the context of all
the events surrounding the incident. (p.495) (says obj. fine s.7)
Creighton 1993 MR for manslaughter: (cocaine injected into
friend) a RP in the circumstances would have been aware of the
risk of non-trivial bodily harm (dissent objective foreseeability
of death – BUT maj. FJ does not require absolute symmetry
between moral fault and the prohibited consequences). Need
MR for underlying offence (need objective foreseeability that
unlawful act would give rise to bodily harm that would not be
trivial or transitory). Obj. entirely appropriate to the stigma
associated with the offence of manslaughter (s.7) Obj.
requires a "marked departure" from the standard of the
reasonable person (shouldn’t vary for background of A) ONLY
take into account personal characteristics when there is an
incapacity to appreciate the risk involved in the conduct –
otherwise not relevant (personal attributes such as age,
experience and education are not relevant) one ex: incapacity to
appreciate the nature of the risk which the activity in question
entails. Stigma not enough to warrant subjective standard.
Nature of the activity relevant. Here: a duty to inform himself as
to the precise risk the injection entails.
Beatty 2008: (re-considering AR + MR for dangerous
driving causing death – same in Hundal, obj challenged )
Modified Objective test: The distinction between a mere
departure and a marked departure is a question of degree. Penal
negligence is still aimed at punishing blameworthy conduct
POFJ. Cannot ignore the actual mental state of the accused –
use objective then allow accused to raise a reasonable doubt
(analysis contextualized) (defences available of incapacity
and mistake of fact). (BUT will take into account accused’s
state of mind as part of modified objective mens rea inquiry
– for determining sufficient mens rea). ALSO AR:
objectively LOOK AT conduct measured against provision
charged NOT with consequences resulted in. Can infer mens rea
from the extent to which driving departed from normal SOC.
BUT MUST consider evidence about the actual state of
mind of the accused, if there is any (raising a reasonable
doubt). Momentary lapse (here there was evidence about
the accused’s state of mind). Viewed from an objective basis,
this momentary act of negligence was insufficient evidence to
support a finding of a marked departure from the standard of
care of a prudent driver (personal attributes still not relevant)
(mclachlin talks about inference majority does not)
Roy 2012: (snowy night, no memory of the collision). Simple
carelessness does not = a sufficient marked departure to be
criminal. In crim there is always a minimum level of fault
required. Proof of the AR of the offence without more, does
not support a reasonable inference that the required fault
element was present. (also apply Beatty that:)proof of
subjective mens rea —that is, deliberately dangerous driving—
would support a conviction for dangerous driving, but proof of
that is not required. The driving, objectively viewed, was
dangerous. A single and momentary error in judgment with
tragic consequences does not support a reasonable inference
that the appellant displayed a marked departure from the
standard of care expected of a reasonable person in the
same circumstances so as to justify conviction for the
serious criminal offence of dangerous driving causing death.
TJ erred in law by equating fault with the failure to explain the
conduct. Determining whether the obj. fault component for
penal negligence is present ask 2 questions.
1) in light of all of the relevant evidence, would a reasonable
person have foreseen the risk and taken steps to avoid it if
possible? 2) was the accused’s failure to foresee the risk and
take steps to avoid it, if possible, a marked departure from the
standard of care expected of a reasonable person in the
accused’s circumstances?
MR - CHARTER CONSIDERATIONS AND REVIEW
Fault requirement questions weighed against s.7 post ‘82.
Mind the Gap, Roach: allowing room for subjective fault
proof before charter but afterwards restricted and playing
around with concepts usually reserved for civil standard.
difficulties of ensuring that negligence standards are applied
fairly to the broad range of people who may commit criminal
acts (less room for considering background characteristics)
(Gladue at level of sentencing but not at attaching the offence).
Murder (stigma offence), attempted murder, crimes against
humanity, theft require subjective fault. Less for others.
Manslaughter (subjective fault not required, Creighton)
BC MVA (1985): need some level of fault for any crime with
imprisonment potential.
Vaillancourt 1987: tells friend don’t bring a gun for robbery.
Shots fired, dead. Court ruled that crimes with significant
"stigma" attached, such as murder, require proof of
the MR element of subjective foresight of death, and therefore
the provision for constructive murder (murder while committing
a crime) was unconstitutional. It is a PFJ that a conviction for
murder cannot rest on anything less than proof beyond a
reasonable doubt of subjective foresight.
Martineau (1990): liability for murder cannot be based on any
MR less that subjective foresight of death. PofFJ need obj. fault
requirement at least and strikes down as unconstitutional.
Finta 1994: crimes against humanity. What is different than
other offences? the cruel and terrible actions which are essential
elements also requires intentional discrimination of group. Very
different from, and far more grievous than, any of the
underlying offences (here committing unlawful confinement,
robbery, kidnapping, and manslaughter that constituted war
crimes). Special stigma attached to being called a war criminal.
Part of reason of stigma – imprisonment for life for 2nd degree
murder or first (normal snd degree lower sentence – eligible for
parole for 10-25 years vs automatic 25yrs).
MR - ABSOLUTE AND STRICT LIABILITY
Criminal law requires more than just voluntary act or omission.
“true criminal offences:” require minimal level of fault
Regulatory/public welfare offences: may be satisfied by proof
of the prohibited act with no further fault requirement
=“absolute liability”) OR a much-reduced fault requirement
=“strict liability”(crown onus to prove prohibited act BUT then
A. may prove a defence of due diligence (a lack of negligence,
met SOC) or a reasonable mistake of fact (reversal of burden
of proof). (s.11 + s.7 challenges)
Beaver 1957: (fake drugs – acquitted) Confirms separation
between public welfare offences and criminal offences. No
other provisions with no fault requirement at all - where the
necessity for MR is excluded when it has a mandatory sentence
of imprisonment. When stakes this high Parliament must be
express that want no fault. (post charter probs wouldn’t fly).
Pierce Fisheries 1971: differentiation between regulations and
true crime (undersized lobster  no stigma). Wide category
of offences where no presumption of MR as an essential
ingredient: that regulate health, convenience, safety, general
public welfare. Here general public interest to preserve
lobsters. Is this criminal? Whether this is stigma or whether
sounds like a crime. It’s relevant that not “knowingly”,
“wilfully”, “with intent” or “without lawful excuse” in offence.
Sault Ste. Marie (1978) – strict liability: The emergence of
strict liability. Absolute liability: There is no relevant mental
element. It is no defence that the accused was entirely without
fault (FOR: deterrence policy, maintain high standards,
encourages above and beyond cautiousness)(AGAINST: no
proof that high standard taken, violates fundamental principles
of penal liability). Introduces middle position: fulfilling the
goals of public welfare offences while still not punishing the
entirely blameless. Strict liability achieves this: a defence of
due care, with burden of proof resting on accused (BOP).
(accused in best position to provide this information)(still
require Crown to prove AR BRD). Must have express
legislature saying either absolute liability or full MR moving
forward for these offences.
Pontes (1995): held that that the offence of driving with a
suspended licence was still an absolute liability offence because
the only defence available to the accused was not available
(didn’t know license was now suspended) because of the
principle that ignorance of the law is not an excuse. (there was a
fine imposed – no threat of jail time, absolute ok s.7).
Wholesale Travel Group 1991: travel agency was charged with
false or misleading advertising (not really wholesale price). Not
unconstitutional to create an offence for which the MR
component is negligence b/c have a due diligence defence
(reverse onus fine). BUT the timely retraction requirement
that could be punished by 1-year imprisonment creates a
potential absolutely liability offence and is unconstitutional.
The additional requirement of "timely retraction" means that the
statutory defence is considerably more narrow than the common
law defence of due diligence and could result in the conviction
of an accused who was not negligent. An accused who did not
realize that the representation in question was false or
misleading until it was too late to comply but who had
nonetheless taken reasonable precautions and who had
exercised due diligence in preventing false/misleading
advertising, would not fall within the statutory defence and
would be convicted of false/misleading advertising.
MISTAKE OF LAW – except when knowledge in MR:
s.19 CC (ignorance is not a defence). Overly harsh? (note that
Mistake of fact not ruled out as an excuse in code – handled by
jury). (except. to MoL could be for officially induced error)
Howson 1966 – DEFENCE of colour of right: Believed had a
right to hold car until charges paid. Was not trying to steal a car
or intending to steal one. No offence if there is a colour of
right? Honestly asserted proprietary or possessory claim
constitutes a colour of right notwithstanding it is unfounded in
law or fact. Defence of colour of right: (1) The accused must
be mistaken about the state of a private law, not a moral right.
(2) That law, if it existed, would provide a legal justification or
excuse. (3) The mistaken belief must be honestly held
Pamajewon(1991): Color of right not relevant to any crime
unless explicitly stated in definition of provision (i.e. in theft
says without “colour of right”). This was a mistake of law, not
fact. No defence.
Docherty – when MR requires knowledge: Where
knowledge is itself a component of the requisite MR, the
absence of knowledge provides a good defence (means
missing an element of offence not ignorant of law). S.19 and
offences that require a ‘wilful’ element -> i.e. willfully beaching
probation order (no longer in CC) -> accused cannot have
wilfully breached his probation order through the commission
of a criminal offence unless he knew that what he did
constituted a criminal offence. p.1547. s. 19 of the Criminal
Code does not preclude the respondent from relying on their
honest belief that he was not doing anything wrong.
Jorgensen: If there’s knowledge in the MR and an accused
has the knowledge, this MR cannot be negated by approval
by others (film board). A retailer, however, will not be
immune from charges merely because he does not know how
the law defines obscenity. This would amount to the defence of
mistake of law and it is well established that ignorance of the
law is no defence. Also, Deliberately choosing not to know
something when there are reasons to believe further inquiry is
necessary can satisfy the mental element of the offence
Prue 1979 - overruled: A’s lack of knowledge that his licence
was suspended. SCC says question of fact not law. Automatic
suspension when this happens which was only under a
provincial enactment. Dissent: A did not know that their license
would be automatically suspended mistake as to the legal
consequences of a conviction under s. 236 (that licence would
be suspended after charged with a driving offence)(this is
finding by Pontes + CHANGE to absolute liability not strict)
MacDougall 1982: thought could drive during acquittal process
following revocation of license order that he thought was void.
The provision said license “shall” remain revoked during
acquittal process. Mistake of law. Convicted of a CC offence.
Levis - Officially induced error: A DEFENCE to committing
a crime. An accused must demonstrate the objective
reasonableness of the advice given and the reliance on the
advice. The issue must be considered from the perspective of a
reasonable person in a situation similar to that of the accused.
An exception to ignorance of the law. Vehicle unpaid
registration. Accepted an officially induced error defence
because told by authority that would be given a renewal notice.
To use defence the accused must prove six elements:1.that an
error of law or of mixed law and fact was made;2. that the
person who committed the act considered the legal
consequences of their actions; 3.that the advice obtained came
from an appropriate official; 4. that the advice was reasonable; -
must be considered from the perspective of a reasonable person
in a situation similar to that of the accused (not a a purely
subjective analysis) 5. that the advice was erroneous; and 6. that
the person relied on the advice in committing the act (this
reliance is also needs to be determined to be reasonable) (Lamer
adds 6). Factors: the efforts made by the accused to obtain
information, the clarity of the law, role of the official who gave
the info and its clarity. First tried due diligence and not met for
strict liability offence. Deserves to have the error treated as “an
excuse,” resulting in an acquittal.
La Sourveraine: Mistake of law can never ground a defence
of due diligence unless it has been officially induced. No
point A. showing made a reasonable effort to know the law or
that it acted in good faith. To accept an unrestricted possibility
of hiding behind a subjective excuse of ignorance would be
dangerous and improper. Dissent: silence from regulator can
reasonably be relied on as approval, or an “inducement.”
Pontes (1995): Prue is wrong because this is not a mistake of
fact but a mistake of law. The court in Macdougall recognized
that the only defence available for driving with a revoked
licence can only be ignorance of the law which is not a
defence. This is right. But we are now post charter which
introduced a minimum fault requirement and so anything
classified as strict liability must have a defence of due diligence
available. By recognizing that the only defence available to
driving with a revoked license is a mistake of law which is NOT
a defence. So because there is no defence available this
offence must be re-classified as a absolute liability offence
(which can now be saved by the charter s.1). BC Motor
Vehicle Act provides that a driver will “automatically and
without notice” be prohibited from driving for a period of 12
months. … Because the prohibition to drive in s. 92 is
automatic and without notice, s. 94 effectively prevents an
accused who is unaware of the prohibition from raising a
defence of due diligence (nothing you can say or do) (so can’t
be strict liability if no due diligence available). Dissent: still
considered strict liability b/c can show that they made a
reasonable mistake of fact as to the existence of his conviction,
or that he exercised due diligence to ascertain whether he had
been convicted of one of the underlying offences. Defence of
due diligence can show either 1) mistake of fact OR 2)
reasonable care. Can’t get you off criminal offences.
Molis: mistake of law can never ground a due diligence defence
and this. “the defence of due diligence that was referred to in
Sault Ste. Marie is that of due diligence in the relation to the
fulfilment of a duty imposed by law and not in relation to the
ascertainment of the existence of a prohibition or its
interpretation”
MISTAKE OF FACT - defence: - P.67
Would avail an accused who acts innocently, pursuant to a
flawed perception of the facts, but still commits the AR of
an offence (negates MR). A crime requiring intention or
recklessness cannot be committed if the accused was acting
under a mistake of fact. Cannot be wilfully blind – a counter
to mistake of fact (Sansregret – knife)
Mistake of fact usually for consent for sexual assault cases:
Pappajohn: Must be honestly held (reasonableness merely
evidence of whether mistake genuine – can be unreasonable)
Wilful blindness (can’t claim mistake of fact). BUT to put
forward defence of mistaken belief in consent, there must be
some evidence beyond the assertion by A of belief in consent
“air of reality” (BUT new s. 273.2(b): no mistaken belief
defence where did not take reasonable steps to ascertain
whether the complainant was consenting (not just honest)
SEXUAL ASSUALT:
Showing actus reus of sexual assault: start with s.265 (assault =
intentional force with no consent) then go to 271 (where you get
definition of sexual assault) but recognize that in 273.1 there is
a different type of consent attached to sexual assault.
Chase: Gives us a definition of ‘sexual’ in definition of sexual
assault. integrity of the victim is violated. Test for whether
requisite ‘sexual nature’: objectively sexual conduct in all the
circumstances. Circumstances: part of the body touched, the
nature of the contact, the situation in which it occurred, the
words and gestures accompanying the act, any threats, force,
intent MAY be a factor
VKB: Not necessary to show done for sexual gratification
(disciplining child by squeezing testicles). (p.593).
s.273.1: Meaning of consent (came from bill c.49 – before this
were happy for silence to = consent)
DEFENCES – INTOXICATION:
Specific intent – you had to mean to. (assault is general intent).
Intoxication: challenge to the MR of a specific intent
offence. A. has burden of proof to show “air of reality” so can
even be presented to the jury. Not available for general intent
(s.33.1 CC in response to Daviault)(but left open for offences
that don’t include threat/assault on bodily integrity)
Beard, 1920: beginning of defence. alcohol = worse offence. In
cases falling short of insanity a condition of drunkenness at
the time of committing an offence causing death can only,
when it is available at all, have the effect of reducing the
crime from murder to manslaughter. The case authority for
restricting intoxication to “specific intent.”
3 principles.
1: insanity (produced by drunkenness or otherwise) is a defence
(for general or specific – s.33.1 to Daviault now says no) (also
Bouchard lebrun says that insanity must be from MD)
2: drunkenness is relevant to determining whether had the
specific intent necessary.
3: falling short of a proved incapacity (i.e. just that mind was
affected by drink) IS NOT ENOUGH to rebut the presumption
that intent natural consequences of your action.
George 1960: distinction between specific and general intent
exists b/c of defence of intoxication. Can’t use not being able
to form specific intent for robbery, because of alcohol, to get
off for the general intent offence of assault as well. In this
case still make insanity induced by alcohol available as a
defence to a general intent offence (didn’t reach this level).
Leary 1978 – substituted MR for general intent offences: the
recklessness shown by an accused in becoming voluntarily
intoxicated can constitute the fault element needed to find that a
general intent offence has been committed (substituted mens
rea). Can’t use intoxication defence to raise a reasonable doubt
about mens rea for general intent offences
Daviault 1994 – trying to expand defence to general intent:
Court held that the “substituted mens rea” rule from Leary
was contrary to ss. 7 and 11(d) of the Charter (a person
intending to drink cannot be said to be intending to commit
a sexual assault). New principle: accused persons who were in
a “state akin to automatism or insanity” at the time they
committed an act constituting a general intent offence could
raise intoxication defence to raise a RD for the MR. Mens rea
essential to criminal law.
NEW s. 33.1 CC response: introduced to ensure that
“intoxication may never be used as a defence against
general intent violent crimes such as sexual assault and
assault.” Introduced in Bill C-72, concerned that may be used
socially and legally to excuse violence, particularly against
women and children.
Bouchard 2011 from s.16  s 33.1: qualify beard’s 3prin. 
can’t look at whether they had the ‘capacity’ to form the
necessary intent to look at whether THEY ACTUALLY had the
intent (for MR). Start with s.16 then if successful A is found
to be incapable of forming the requisite intent for the crime.
Then s 33.1 which completely covers intoxication defence.
DEFENCE OF MENTAL DISORDER:
Narrow extreme cognitive approach. Berger: “rarely met by
even the most psychotic of defendants.” (non-emotional).
available when cannot understand consequences of their actions
or know that they are wrong. Now disposition hearing where
decide the appropriate treatment and control options. “under-
inclusive doctrine of mental disorder allows us to disregard
the difficult issues of collective, social, and political
responsibility that arise at the meeting of mental health,
social disadvantage, and crime”
s.16 “a mental disorder” defined as “a disease of the mind”
(but term is a legal one, to be defined and applied by judges).
Procedural MDD - Step 1: s.672.23 – fitness to stand trial
(s.2 def). 672.33 (every 2 yrs). Or never 672.851 (pg.1383 –
stay of proceedings)
Whittle 1994: The test for fitness to stand trial is quite
different from definition of mental disorder. It requires
limited cognitive capacity to understand the process/
communicate with counsel. DOES NOT need to be capable of
making rational decisions beneficial to yourself.
Chaulk; Morrisette 1990 – first charter challenge: burden of
proof. holding that an individual was presumed to be sane (to
not have a MD – s.16(2)) until proven contrary violated s.11 of
the Charter but was a “reasonable limit” under s 1. Allows a
factor that is essential for guilt, sanity, to be presumed which is
contrary to presumption of innocence. Found under oakes
minimal impairment + substantial objective (don’t weigh down
Crown too much – last plea of the morally corrupt). (Dissent:
not saved: trying to escape from criminal liability on false
insanity pleas has not been shown to be a real social problem)
Swain 1991 – procedure for raising s.16 - new regime: 1)
accused can raise s.16, 2) Crown may raise evidence of insanity
if the accused’s own defence has (in the view of the trial judge)
put the accused’s capacity for criminal intent in issue, or 3)
crown at sentencing. Struck down the provision for
automatic, indefinite detention of an NCR accused - violated
the accused’s s. 7 liberty rights (rejects guilt, innocence
dichotomy – treatment rather than punishment, diverted
into a special stream – new section XX.1 introduced.
Conduct a hearing to decide whether the person should be kept
in a secure institution, released on conditions, or
unconditionally discharged. The emphasis is on achieving the
twin goals of protecting the public and treating the mentally ill
offender fairly and appropriately). (Dissent – l’heureux-dube
judge disagreed - infringes upon the equality rights of the
mentally disabled under s. 15 of Ch. – choose own defence)
Winko 1990 – requiring absolute discharge unless: how to
deal with these people fairly, while protecting the public against
further harms? Requiring that an absolute discharge be
granted unless the court or Review Board is able to
conclude that they pose a significant risk to the safety of the
public.
2014 amendments: now the paramount consideration is
public safety when making a disposition of an accused
under subsection 672.45(2)(disposition hearing), section
672.47 (RB makes disposition), subsection 672.64(3) (high risk
accused) or section 672.83 or 672.84) (might be harder to get
absolute discharge now). Prediction that the new provision
will be challenged under the Charter.
Conway 2010: mental health review board makeup:
jurisdiction as a quasi judicial body to grant Charter remedies
to rectify a breach of a mentally disordered offender’s
Charter rights and freedoms. Five member (2 legal, 2
psychiatrists, 1 member of public).
Simpson 1977 - “disease of the mind” is a legal concept:
issue was whether a personality disorder is a disease of the
mind (must be resolved as a question of law – I.e not just the
psychiatric evidence. Case by case basis. The function of the
psychiatrist to describe the accused’s mental condition and how
it is considered from the medical point of view. It is for the
judge to decide whether the condition described is
comprehended by the term “disease of the mind.
Cooper 1980 – how broad is “disease of mind?” yes legal Q.
But how broadly should the words “disease of the mind” be
interpreted? Excludes self-induced states caused by alcohol
or drugs, as well as transitory mental states such as hysteria
or concussion. Broad interpretation: every recognizable
disorder or derangement of the understanding whether or not we
currently understand it properly/ can explain it. Arm#1:
Capacity to know what he is doing = understand the
physical consequences. CR requires a level of understanding
of the act which is more than mere knowledge that it is
taking place.
Abbey 1982 - Arm #1 appreciated: that trafficking was a crime
and wrong but also thought that if caught would not be
punished (protected by an external power). Arm#1: appreciating
the nature and quality of the act. (overturns TJ’s conclusion that
somebody who, because of a disease of the mind, has the
delusion that he is protected from punishment by some
mysterious external force, is incapacitated from appreciating the
nature and quality of his acts – not what appreciating means – if
you can appreciate that something is illegal just not the penal
consequences then can’t get s.16 defence)
Chaulk SCC Arm#2 - Knowing that the act is wrong: If, as a
result of disease of the mind (not opening up the defence to
simply the amoral), the offender has lost completely the
ability to make moral distinctions and acts under an insane
delusion, it can well be said that he should not be criminally
accountable. Can only be acquitted by reason of insanity if, by
reason of disease of the mind, he is incapable of knowing that
society generally considers a particular act to be immoral.
WILL NOT open floodgates/ aid amoral offenders: 1) have to
have a disease of the mind 2) moral wrong is not to be judged
by the personal standards of the offender but by his
awareness that society regards the act as wrong. Dissent:
need greater certainty  what will society’s moral judgment
will be in every situation?
Oommen 1994 – Arm #2 – limiting knowing wrong:
Knowing that the act is wrong kills woman thinks part of
conspiracy. s. 16(1) embraces not only the intellectual ability
to know right from wrong, but the capacity to apply that
knowledge to the situation at hand. Accused accepted
society’s views on right and wrong, but he was unable because
of his delusion to perceive that his act of killing was wrong in
the particular circumstances of the case. Believed that the act of
killing her was justified.
Landry 1988 – bringing the 2 arms together: Considering the
2 alternative arms of the MDD together. mental state NOT
found to affect mens rea if:
a) mental disorder prevented them from having
sympathy for victim or remorse
b) mental disorder made him believe that he would
not be arrested or charged
Abbey –appreciation of your actions doesn’t have to mean that
you understand penal consequences. Chaulk: wrong = morally
wrong from society’s standard. Here  if you know that what
you’re doing is illegal then you should know that it’s wrong.
Justified killing friend because he was satan so found guilty.
You can infer from the law that your act is wrong and right.
Brings the 2 together because 1) appreciating the nature of
the act (illegal) OR 2) knowing that it is wrong – overlap! So
here didn’t think act was morally wong in killing satan but
knew it was illegal and that’s enough.
Bouchard Lebrun 2011 – drug induced MD not a defence:
(ecstacy and assault) Temporary psychosis caused by
voluntary consumption of drugs is not a “mental disorder”
and therefore section 16 does not apply. Court is having to
determine what the SPECIFIC SOURCE of the mental
condition was a) self-induced intoxication (go to s.33.1) OR
disease of the mind (go to s.16). Very difficult in cases where
the mental health of the accused was already precarious prior to
the incident. And then psychosis emerged while the accused
was highly intoxicated (p.58). Still open to show MD. Failed to
rebut the presumption that his toxic psychosis was a “self-
induced stat[e] caused by alcohol or drugs” in accordance with
the definition in Cooper. A malfunctioning of the mind that
results exclusively from self-induced intoxication cannot be
considered a disease of the mind in the legal sense (even
though medical science may tend to consider such
conditions to be diseases of the mind). Went on to consider
the “holistic approach” factors in Stone for distinguishing
between sane and insane automatism. Those factors include the
internal cause factor, the continuing danger factor and other
policy concerns.
DEFENCE OF MD + NMD AUTOMATISM
Automatism is unconscious and involuntary behavior. If the
automatism was not caused by a mental disorder then a
successful claim will result in a NOT GUILTY + freedom
(vs NCR + disposition). Automatism is conceptually a sub-set
of the voluntariness requirement, which in turn is part of the AR
Parks 1992 – external cause not guilty: sleepwalking kills
mother IL. Presented a defence of non-mental disorder
automatism. Onus is on the Crown to prove that
sleepwalking stems from a disease of the mind; neither the
evidence nor the policy considerations in this case overcome the
Crown’s burden in that regard (IF continuing danger and
internal cause should = MD A VS A = external cause).
Sleepwalking = external cause, stress, gambling.
Stone 1999 –high evidentiary burden - holistic:
manslaughter for stabbing his wife 47 times after making
very mean comments – psychological blow automatism.
Non-insane automatism arises where involuntary action
does not stem from a disease of the mind and entitles the
accused to an acquittal. Insane automatism, on the other hand,
arises only where involuntary action is found, at law, to result
from a disease of the mind and is subsumed by the defence of
MD. STAGE 1 (new higher burden : The law presumes that
people act voluntarily. Since a defence of automatism
amounts to a claim that one’s actions were not voluntary, the
accused must show involuntariness on a BOP BEFORE it
can be left with the trier of fact (this will require that the
defence make an assertion of involuntariness and call
confirming psychiatric evidence – where the burden on the
defence comes in). STAGE 2: The trial judge must determine
whether the condition alleged by the accused is mental disorder
or non-mental disorder automatism (disease of the mind
terminology). Start from the proposition that the condition is
a disease of the mind and then determine whether the
evidence in the particular case takes the condition out of the
disease of mind category. Considers internal cause factor:
(compare the accused’s automatistic reaction to the way one
would expect a normal person to react - Evidence of an
extremely shocking trigger will be required to establish that a
normal person might have reacted to it by entering an
automatistic state as the accused claims to have done). second
approach, the continuing danger factor: holds that any
condition which is likely to present a recurring danger to the
public should be treated as a disease of the mind (and the
likelihood that the trigger alleged to have caused the
automatistic episode will recur). A holistic approach should
be adopted under which either or both of these FACTORS
should be considered + policy factors. If TJ thinks NMD
autom. possible then the Q of involuntariness will be left to trier
of fact (if yes = absolute acquittal). If disease of mind only MD
autom. left to trier of fact. Then will go s.16 (showing one of
the 2 arms of MD on BOP) (absorbs the question of whether the
accused in fact acted involuntarily). Dissent: defence of non-
mental disorder automatism should not have been taken away
from the jury. present case, neither psychiatrist considered
recurrence a significant possibility. MD s.16 not appropriate to
resolve the automatism issue here. It was wrong of the courts to
require the accused to substitute for his chosen defence of
involuntariness the conceptually quite different plea of insanity.
if the jury rejects NCRMD status, it should still be left with the
elementary instruction that the accused is entitled to an acquittal
if the Crown fails to establish beyond a reasonable doubt all of
the elements of the offence, including voluntariness. It is to be
expected that the jury will subject the evidence of
involuntariness to appropriate scrutiny. Picked up in Fontaine.
Fontaine 2004- apply air of reality “some evidence”
standard: NO STONE! Picks up dissent. No one will ever be
able to raise defence of automatism if BOP before reaching
jury is the burden. Actually there is not a new or higher
"evidentiary" burden which must be met before an accused can
raise the defence of automatism and the trial judge is not to
assess or weigh the evidence on a balance of probabilities
standard in determining whether there is sufficient evidence
but rather whether there is “some evidence.” TJ must assume
the truth of the evidence that tends to support it, leaving the
reliability, credibility and weight of that evidence to be
determined by the jury. BUT Stone continues to provide for the
benefit of triers of fact a helpful overview of factors they might
wish to take into account in rendering their verdicts AND still a
high "persuasive" burden for automatism once sent to jury (i.e.
the accused must ultimately prove automatism on the balance of
probabilities)
Graveline 2006- ex successful claim of NMD automatism
produced by a psychological blow. Examines requirement
for an extremely shocking trigger in the context of battered
woman syndrome. AND specific triggering incident that the
accused alleged put her in a state of automatism was not
extremely shocking (it involved a shove and abusive language)
BUT husband had abused her for very long time + Acc. was
drinking and did not remember shooting her husband with a
rifle. (post-Stone for regular psychological blow automatism
need "an extremely shocking trigger" which might cause "a
normal person" to enter into a state of automatism).
Jiang 2007: Unexpectedly falling asleep while driving.
Dangerous driving causing death and bodily harm. accused was
suffering from undiagnosed chronic insomnia and not aware.
not voluntary so can’t form the AR of dangerous driving (NOT
saying that a sleeping driver can never be convicted of
dangerous driving  AR of the offence may consist not of
driving while in a state of sleep, but driving when know face
a real risk of falling asleep.
Luedecke 2008: STONE said that have to look at continuing
danger factor ALSO when deciding whether someone
should have mental-disorder automatism or non-mental
disorder automatism  The triggers for Parks’ sleep-walking
included stress, fatigue, insomnia and exercise. triggers that will
be present in the future SO if Parks been tried using the
Stone test, the only defence that would have been left to the
jury would be “mental disorder automatism.” Determined
that A’s sexual assaults whols sleepwalking constituted a
mental disorder or disease of the mind  then received an
absolute discharge under s 672.54 of the Criminal Code b/c not
a significant threat to the safety of the public BUT NOTE this
case was decided before s 672.54 was amended in 2014 (that
put more emphasis on public safety in disposition).
DEFENCE OF PROVOCATION – s.232 (2015 changes)
Partial, limited statutory defence (only for murder).
Requires 3 elements.
(1) had to be established that was provoked by a wrongful act or
insult (changed now ONLY IF the conduct of the victim
would constitute an indictable offence punishable for 5
years)
(2) the wrongful act or insult was sufficient to deprive an
ordinary person of the power of self control (The test in element
2 is not whether the ordinary person in these circumstances is
whether they would have done what the accused did  the test
is whether an ordinary person would have lost the power of self
control under such provocative circumstances – critique that no
proportionality inquiry?)
(3) the accused must be killing in response to the wrongful or
act or insult ON THE SUDDEN (temporal link, strikes an
unprepared mind). Need an air of reality for each 3 before
put to as question of fact for the jury. Our law accommodates
the emotion of anger, rage particularly. none for love, victim
blaming?
Hill 1986 – what features of the A are relevant: The central
criterion is the relevance of the particular feature to the
provocation in question. Young age is relevant to the degree
of self control to be expected. The law expects less self control
from young people  but race and gender not relevant to the
question of self control. (important for looking to the same
circumstances as the accused) MAY instruct (see Thibert)
Cameron (1992) – charter challenge- OBJ no infringement:
The fact that provocation operates as a defence only where the
act or insult relied upon as provocation meets a threshold test
that an ordinary person would have been deprived of self
control does not infringe the principles of fundamental justice
guaranteed by s.7 of the charter. This does not impose liability
where subjective fault does not exist but instead reduces the
liability even when that fault does exist (claim need subj. for
murder charge)
Parent (2001) anger alone is insufficient: to reduce murder to
manslaughter. BUT anger can play a role in finding a defence
is available. Provocation is an excuse, anger not enough to
negate MR – can’t create a defence of anger as a “halfway
house” between automatism and provocation.
Thibert (1996) OBJ BUT instruct on relative attributes:
Although we take a strictly objective approach to
determining what standard of self-control we require of the
accused, when we consider the gravity of the provoking
insult, those attributes that give the insult its particular
significance are ascribed to the “ordinary person.” (vs in
Hill  court said judge may, but need not, instruct the jury
about such features). All the relevant background circumstances
should be considered, their history, how did thy know each
other, the relationship between the parties relevant. A widening
and softening of the defence. Obiter: Rejection in the context
of a romantic relationship will not constitute a basis for the
provocation defence (see this picked up in statute). Dissent:
spouse clearly wanted to leave, wasn’t sudden.
Nahar (2004) take cultural background into account:
(conventions, assumptions, and norms of his cultural
community) comes from description of objective element in
Thibert - ordinary person must have been one who shared Mr.
Nahar’s cultural background b/c of the implications of his being
a Sikh. Gives meaning to the significance of the affront rather
than to a person’s self control.
Humaid 2006 cultural background CAN be relevant (but
has to have some an air of reality + obiter Canadian values:
but must differentiate between losing control and having
motivation. Obiter: on the issues on whether cultural
characterisits are relvant to the ordinary person test: these
beliefs are antithetical to Canadian values. The ordinary person
cannot be fixed with beliefs that are irreconcilable to
fundamental Canadian values. This is the view that carried the
day in the Trans Case.
Tran 2010 – leading case – 2 step test for defence: knowing
of cheating spouse not sudden. The requirements are (2 steps):
1) an objective component – “a wrongful act or insult
sufficient to deprive an ordinary person of the power of self-
control” (informed by contemporary values such as the
commitment to equality in Charter – must have a justified
sense of being wronged. A limit placed on background
characteristics accepted - an important distinction between
contextualizing the objective standard, which is necessary and
proper, and individualizing it – i.e. adultery is the highest
invasion of property”) and if yes, move to
2) a subjective component – “the provocation must have
caused the accused to lose self-control and act while out of
control.” (must actually be provoked + on sudden before cool
- subjective perceptions of the circumstances (what they
believed, intended or knew).
Trend post Tran seems to be narrowing of provocation – i.e.
finding not “air of reality.”
Mayuran 2012: Kills her sister law. This person was
provoked but an ordinary person would not be. i.e. scolded’
about her level of education not sufficient to justify stabbing a
person 45 times in a responsive rage (is the # really relevant)
Pappas 2013: Would have to be a sudden response to an
offence that could cause a RP to lose control (must be sudden
knew this for a while, was only being de-frauded, risky defence
to use because admitting AR of offence and your intent)
Cairney 2013: both subjective + objective elements must be
made out at “air of reality” before being given to the jury.
No absolute rule that an accused that instigates a confrontation
cannot rely on defence of provocation. Moment of anger in this
case had passed (no imminent threat of domestic violence).
SELF DEFENCE – pg.100 text
34(1) A person is not guilty of an offence IF
(a) mixed subjective objective:
(b) subjective motivations of accused but also drawn from
objective indicators (can infer - Cinous)
(c) objective language that act committed must be “reasonable”
in cricumstances BUT factors used to determine if the accused’s
act was “reasonable in the circumstances are subjective
considerations (age, gender, history of the relationships and
communications).
S.34(2) Proportionality between the threat and the response is
relevant Cain: No requirement to retreat but not a right to
“stand one’s ground.” But possibility of retreat might be
relevant factor for apprehension/ no alternatives
(2)flexible and contextual test. (absorbing the principles
established in Lavallee , Pétel , and Malott into the self-
defence scheme).
Establish an “air of reality” to self-defence, there must be
some evidence upon which a properly instructed jury,
acting reasonably, could find that all 3 elements are met
(a+b+c). Also change in saying “offence” now instead of
returned force (opening up to not just an assault.
Cinous 2002 emphasizes the modified objective approach:
Have to have an air of reality for all 3 components.
A) possible for the jury reasonably to conclude that the accused
believed that he was going to be attacked (testimony) +
reasonable.
B) could draw an inference from the circumstances described
by the accused for reasonableness of his perception that he was
in mortal danger.
C) Reasonable belief in the absence of alternatives to killing not
met (both ob + sub) (had a + b both ob and sub but not c.) 3)
Nelson – mistake of fact: The accused may be mistaken
about the nature and extent of force necessary for self-
defence provided the mistake was reasonable in the
circumstances (mixed sub/objective)
Reilly 1984 Intoxication not relevant to SD in trying to find
reasonableness of belief: (Pappajohn and defence of mistaken
fact where no legal necessity that the mistaken belief be based
upon reasonable grounds. It was accepted that intoxication
could potentially induce such a mistake of fact – “although
intoxication can be a factor in inducing an honest mistake, it
cannot induce a mistake which must be based upon reasonable
and probable grounds” – though removed for mistaken belief in
consent). S. 34 has a statutory requirement of
reasonableness - A reasonable man is a man in full
possession of his faculties. Defence can still be available to a
person who is intoxicated, it just doesn’t form part of the
analysis of what was reasonable in the circumstances
Kagan - “reasonable” perception of situation should be
informed by intellectual/mental impairment (Asperger’s)
Petel 1994: An honest but reasonable mistake as to the
existence of an assault is permitted.
Forde 2011: jury is not permitted to consider whether an
accused could have retreated from his or her own home in the
face of an attack (or threatened attack) by an assailant in
assessing the elements of self -defence under [old] s. 34(2)”
 weird room for old conceptions of property, honour etc.
Faid (1983) can’t use excessive force + get SD when cause
death then not just not guilty not available also
manslaughter not available.
All or nothing. can put significant pressure on an accused to
plead guilty to a lesser charge—such as manslaughter—rather
than take the risk that a judge or jury will find that his or her act
was excessive, or otherwise not reasonable in the
circumstances. Particular concern in cases of gendered and
domestic violence.
Lavallee “reasonableness” for purposes SD, position of A.:
R Must be assessed in light of the experiences and position of
the accused (applied in settings beyond domestic violence.) =
(prison environment syndrome, asperger’s syndrome)
Self Defence and Battered women:
Lavallee look at elements of defence of SD differently:
A) reasonable apprehension (imminent has been read in) E.E +
cumulative effect + heightened sensitivity to partner’s acts.
what the accused as a BW reasonably perceived
B+ C) magnitude of force used to defend, no other alternative-
E.E inability to leave relationship (what is ‘reasonable’ must be
adapted to circumstances: reasonable given history,
circumstances and perceptions of A).
Nelson 1992: diminished intellectual capacity is a factor in
applying s 34(2) only if beyond control and relates to ability to
perceive + react to events
Petel 1994: (kill) previous threats relevant to reasonableness of
perceptions and response. Subjective factors to give meaning
to imminence. Existence of assault not prerequisite for SD.
Mallot + L’heureux-dube con.: problems with “battered
women syndrome” addressed
Distinction between Duress and Self-defence: Self-defence:
(completely codified) based on principle that it is lawful, in
defined circumstances, to meet force (or threats of force) with
force (the right to respond). The victim is the originator of the
threat that causes the actor to commit what would otherwise be
assault of culpable homicide. Duress (and necessity) the victims
of the otherwise criminal act are third parties, who are not
themselves responsible for the threats or circumstances. The
purpose of the threat is to compel the accused to commit an
offence. (SD + D serve to avoid punishing the accused in
completely different situations) (Ryan)
DURESS BOTH S.17 + CL – p.64
Committing a crime under compulsion. S17 has been only found
to apply to principals, parties may use the CL defense, which
removes the list of excluded offences (Pacquette 1977). Both s.17
+ CL require an explicit/implicit threat of present or future death
of bodily harm, can be at 3P; must reasonably believe threat; no
avenue to escape (mod. Obj. standard, MOS – CL Mena); close
temporal conn. (CL -MOS); proportion, MOS; not party to a
conspiracy + actually knew that threat to commit an offence were
possible result (Ryan)
Ruzic: an excuse once MR +AR established. POFJ that morally
involuntary acts should not be punished.
s.17 – restrictive - Ruzic: The immediacy and presence
requirements in s17 have been struck down as unconstitutional
(but only applied in case to crime` not excluded in list(importing
drugs – but did say severed from provision). Leaves door open
that principal offender may rely upon the CL DD duress in
respect to all offences except the s. 17 list of excluded offences.
BUT If a principal offender commits one of the excluded offences
listed in s. 17, that offender can not rely on DD.
Allen 2014 Sask. Q.B robbery + assault with a weapon has been
cut from exclusions. Future?
Aravena 2015 O.C.A: obiter murder unconstitutional as an
exception sub to s.1.
Herbert: if can render threat unenforceable ahead of time by
going to police/ escape route then can’t rely on s.17. i.e. obtain
police protection
Robins: must be a threat of death or bodily harm
Common law duress: party to an offence – excuses actions. MR.
Broader. S.17 exists only to withdraw the defence for certain
offenders – CL plays the central role.
seems to require threats of "serious bodily harm”
Paquette: murder charge. DD open as to A. charged with being
an aider and abettor to murder so must also be available to party
of offence s.21(2). Characterization of principal or party key.
Mena: open to the jury to find A aider + abetter and entitled to
CL DD. But distinction often unclear. Stole goods while P. held
gun to owner.
Hibbert: MR not negated. Like necessity an excuse
Will have found MR first. For purpose of aiding in s. 21(1)(b); don’t
need to desire outcome, intend it. knows what their act is doing,
intention might be due solely to the principal’s threats.
Ryan: For duress, a person must have committed an offence that a
third party had compelled her to commit. Husband was not urging her
to kill him. Not the right fact pattern for duress (assassin). Tried to
achieve consistency between s.17 + CL. statutory applies to principals,
common law defence available to parties (but only really when one of
the excluded lists if now brought in line). Common law concepts of no
safe escape, close temporal connection, and proportionality are grafted
onto the s 17 defence as altered in Ruzic.
constitutionality of exclusion of offences s.17: ask whether, by virtue
of the exclusion of these offences, an accused could be convicted even
though he or she acted in a morally involuntary manner (then would
violate s.7)(future challenges)
NECESSITY –CL DEFENCE s.8(3) – pg. 40:
same idea of normative involuntariness. Modified objective
proportionality standard in Duress differs from objective standard used
in necessity. no safe avenue of escape/legal way out. Both are excuses.
Requires the accused to reasonably resist the pressures that led to the
crime (as with SD + D).
Morgentaler 1976: If defence does exist it can go no further than to
justify non-compliance in 1) urgent situations of clear and imminent
peril when 2) compliance with the law is demonstrably impossible.
Not to be used for anarchy.
Morgentaler 1985: conduct of the accused must be truly involuntary
(planning, deliberating etc. incompatible with the uncalculating
response essential to ‘involuntary’ conduct – violated law). not the law
which can create an emergency giving rise to a defence of necessity,
but it is the facts of a given situation which may do so.
Perka 1984: group of drug smugglers who stopped in Canada due to a
serious storm at sea. Rests on a realistic assessment of human
weakness, recognizing that cannot hold people to laws in emergency
situations of self-preservation or of altruism (an excuse). Was the
response proportionate? was the danger one that society would
reasonably expect the average person to withstand? Was there any
reasonable legal alternative to the illegal response open to the accused?
Creation of the perilous situation foreseeable then not involultary.
where the accused places before the court sufficient evidence to raise
the issue, the onus is on the Crown BRD.
Latimer 2001: necessity is narrow. Perka gave us three required
elements:
1) imminent peril or danger (MOS) - must be on the verge of
transpiring and virtually certain to occur (actions unavoidable?)
2) no reasonable legal alternative to the course of action (MOS) 3)
proportionality between the harm inflicted and the harm avoided Obj.
(not always need to clearly outweigh) BUT two harms must, at a
minimum, be of a comparable gravity (must be either comparable to,
or clearly greater than). a matter of community standards. 1 + 2
perceptions remain relevant only so long as they are reasonable