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Criminal Law

GENERAL OVERVIEW AND PRELIMINARY MATTERS

1. The Sources of Criminal Law

With the exception of contempt of court, criminal offences are created in Canada by statute.
Most criminal offences are created by the Criminal Code but it is not the only statutory source.
Drug trafficking, for example, is made a criminal offence by the Controlled Drugs and
Substances Act. The common law cannot be used to create offences in Canada because of
concerns related to the principle of legality, and the notion that criminal offences should be
clear, certain, and should pre-exist the act being prosecuted. As will be seen below, many
rules of criminal procedure are created in the Criminal Code, and many other rules of
procedure are common law based.
 Frey v. Fedoruk, [1950] S.C.R. 517 (also in Roach p. 89) (for Fed Parliament, not courts,
to decide if something is criminal, which is in line with value of predetermined/certainty)
o Court held that a common law charge of acting in a manner likely to cause a
breach of the peace by being a peeping tom was not sustainable – Interpreted a
previous offence against conspiring to effect an unlawful purpose to require a
purpose contrary to FEDERAL AND PROVINCIAL LEGISLATION AS
OPPOSED TO the CL (aka Canadian courts reluctant to create CL crimes
because introduce uncertainty, even before the Charter (Section 7) or CC
(section 9)), in contrast to England where courts continue to exercise residual
power even where not offense in statute yet- AKA in Canada, a person can only
be convicted for conspiring to commit an offense created by a legislature and
defined in law
 Held: Appellant's conduct did not amount to any criminal offence known
to the law. Therefore respondents have failed to satisfy the onus placed
upon them to justify the imprisonment under ss. 30, 648 or 650 of
the Criminal Code.
 Held also: Section 30 Cr. C. authorizes a peace officer to arrest without
warrant only if he, on reasonable and probable grounds, believes that an
offence for which the offender may be arrested without warrant has been
committed, but not if he erroneously concludes that the facts amount to an
offence, when, as a matter of law, they do not.
 Held further: Conduct, not otherwise criminal and not falling within
any category of offences defined by the criminal law, does not become
criminal because a natural and probable result thereof will be to
provoke others to violent retributive action; acts likely to cause a
breach of the peace are not in themselves criminal merely because
they have this tendency. It is for Parliament and not for the Courts to
decide if any course of conduct, which has not up to the present been
regarded as criminal, is now to be so regarded.
 See CC section 9 

o No person shall be committed of an offense at common law except contempt of
court.

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 Roach pp. 5, 88-90. 

PAGE 5:
o 3 main sources of crim law:
 1. Constitution (including division of powers and Canadian Charter of
Rights and Freedoms)
 2. Statutes enacted by legislatures, including the Criminal Code
 3. Judge-made common law in the form of defences that have not been
codified in the CC and common law presumptions of fault.
o These three sources are NOT EQUAL: Constitution>Statutes>Common law
 HOWEVER, note that courts play prime role in interpreting Constitution
and shaping the common law
o Emerging source of criminal law = international law
o Criminal law is enacted only by federal parliament (though provincial
governments and feds can create regulator offenses, that can even be enforced
with jail time)
PAGES 88-90:
o Laws may be struck down under Section 7 of Charter if so vague or overbroad
that do not provide fair notice of what is prohibited, or any limitation on law
enforcement discretion
o Ignorance of the law not an excuse, nor is mistakenly thinking something’s legal
o Crown must prove beyond a reasonable doubt that accused committed the
prohibited act (actus reas)
o AR is one element of a criminal offense and must in theory (though courts have
finessed this requirement) coincide with the fault element (mens rea)
o AR and MR generally kept separate, but recently courts have suggested that
accused who acts involuntarily has not committed AR, suggesting some mental
element to AR
o The AR of an offense is a matter of statutory interpretation, since section 9 of CC
says no person shall be convicted of an offense at CL except contempt of court.
 So, to be convicted of criminal or regulatory offense, person must do
something prohibited by a valid statute or regulation. (Goes with ideal that
should not be punished except in line with fixed, predetermined law.)
o Value of Certainty and having predefined crim law is now supported by some
Charter Rights (Ch. 2)- Section 11a gives accused right to be informed without
unreasonable delay of offense charged, 11i against retroactive laws, 11g that act
must have been illegal at time was committed.
 Section 7 of Charter has also been interpreted to prohibit criminal
sanctions so vague/overbroad that don’t provide fair notice or lmit law
enforcement discretion
o Even before the Charter and Section 9 of CC, courts were reluctant to create
common law crimes because they could create uncertainty (this is what Frey v.
Fedoruk is about)
o AKA in Canada, a person can only be convicted for conspiring to commit an
offense created by a legislature and defined in law
o EXCEPT Contempt of Court, only remaining judge-made crime, upheld under
Charteron basis that this uncondified crime fits principle of fixed predetermined

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law
o NOTE – NO CONSTITUTIONAL REQUIREMENT (by Section 7 of Charter)
that ALL crimes be codified by legislation, though contempt of court can be
found to violate Charter (like freedom of expression)
o Strict and Purposive Construction of Criminal Law – another means of
ensuring that crim law is fixed and predeterimined is to apply the doctrinethat it
should be interpreted or construed strictly to the benefit of the accused
 This doctrine has been defined by SC as “IF real ambiguities are found, or
doubts of substance arise, in the construction and application of a statute
affecting the liberty of a subject, then the statute should be applied in such
a manner as to favor the person against whom it is sought to e enforced.”
Marcotte v. Canada (Deputy A.G.) (1976), 19 C.C.C. (2d) 257 at 262
(S.C.C.)
i.While common law offences are not allowed, common law defences are available under
Canadian criminal law and can still be created by the courts. As will be seen below, the
Supreme Court of Canada recognized a common law defence in Levis (City) v. Tetrault, [2006] 1
S.C.R. 420 (officially induced error) and R. v. Mack, [1988] 2 S.C.R. 903 (entrapment).
Moreover, the common law can deeply influence the way that statutory criminal offences are
interpreted, particularly the mental elements. 

 See CC section 8 

 See R. v. Jobidon, [1991] 2 S.C.R. 714, a case you will be asked to review again when
considering the meaning of consent. (Roach page 110) (Man kills man in parking lot bar
fight, argues defense of V’s consent to fight, SC says no consent to bodily harm)
o (Roach 110-111) - SC held that a person could not consent to an assault that
intentionally causes “serious hurt or non-trivial bodily harm … in the course of a
fist fight or brawl,” and that a minor could not consent to an adult’s intentional
application of force in a fight. BUT Court indicated that consent would not be
negated if the bodily harm was trivial or an accepted part of a socially valued
activity such as sports. Subsequent cases have made it clear that, for consent to
be vitiated, Jobidon requires serious harm to be both intended and caused
(see R. v. Paice (2005))
o Justice Gonthier recognized that people may see this as paternalist, but asserted
that all criminal law is paternalistic to some degree.
o Dissent – Sopinka J. argued this interfered with Parliament’s decision to make
lack of consent a requirement for assault and allows judges to expand the breadth
of the offense of assault, but in this particular case, Sopinka found no consent
because what started as a consensual fist fight turned into severe beating resulting
in death
 - Roach pp. 110-111 (discussing R. v. Jobidon)
o Parliament has defined what it means to consent for policy reasons in other
section of CC- for example, Section 14 provides can’t consent to death, Section
286 consent is no defense for abduction of child, Section 150.1(1) consent not
defense to some sex offences involving people younger than 16 for purpose of
determining AR, 150.1(4) addressed mental element of fault by providing that a
subjective belief that the person was 16+ is not a defense unless “accused took all

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reasonable steps to ascertain the age of complainant” (See Ch. 5: The Fault
Element, or Mens Rea)
o R v. Jobidon – see above
o Definition of the prohibited act, whether by statutory words or judicial
interpretation, is an important policy element in criminal law
o Other terms in crim law are defined broadly: assault is defined in Section 265 to
include not only the non-consensual and intentional application of direct or
indirect force on another person, but also attempts or threats ‘by an act or a
gesture, to apply force to another person’ if the accused causes the complainant to
believe on reasonable grounds that he or she has the present ability to effect his
purpose
 Section 264.1 creates the separate offense of uttering threats
 Section 4(3) defines possession broadly to include not only personal
possession, but also knowingly having something in the actual possession
or custody of another person or in another place. Joint possession is
deemed where “one of two or more persons, with the knowledge and
consent of the rest, has anything in his custody or possession.” Courts
have interpreted a person’s knowledge and consent to require that the
person deemed to be in possession must have a measure of control over
the matter (R v. Terrence, 1983 SCC)

2. The Power to Create Criminal Offences and Rules of Criminal Procedure


a) Constitutional Division of Powers Introduced - Both the Federal Government and
Provincial governments have jurisdiction to create non-criminal offences (regulatory
offences) and to use jail to enforce those regulatory offences, but only the Federal
Government can create “criminal” offences, or “true crimes”, pursuant to its powers
under s. 91(27) of the Constitution Act, 1867. The principles that apply to true crimes
differ from those that apply to regulatory offences. These principles will be examined
below when regulatory offences are discussed.
Curiously, while they cannot create criminal offences, Canadian provinces do have
jurisdiction over the administration of justice within the province under s. 92(14) of
the Constitution Act, 1867. For example, the provinces have set up the lowest level of
criminal court where the vast majority of cases are actually prosecuted (the provincial
courts); it is the provincial Attorneys General who prosecute most offences, including
serious offences; and the provinces have passed statutes setting out juror eligibility within
the province. The procedure during criminal hearings, however, is governed by
federal rules and by the common law.
 For a summary of the criminal law power, see R. v. Malmo-Levine, 2003 SCC 74 at
paras. 73 – 79
o 
 Marijuana case – criminal law power under section 91(27) of the
Constitution Act of 1867 and Section 7 of the Charter principle of
fundamental justice do not require criminal law to be limited to conduct that
causes harm. The criminal law power includes the protection of vulnerable
groups, thus the government can control activities for the protection of drug
users and society
o “The federal criminal law power is plenary in nature and has been broadly

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construed. For a law to be classified as a criminal law, it must have a valid
criminal law purpose backed by a prohibition and a penalty. The criminal
power extends to those laws that are designed to promote public peace, safety,
order, health or some other legitimate purpose. The purpose of the Narcotic
Control Act fits within the criminal law power, which includes the protection
of vulnerable groups. The conclusion that the present prohibition against the
use of marihuana can be supported under the criminal law power makes it
unnecessary to deal with whether it also falls under the POGG (peace, order,
and good government) power.
o The availability of imprisonment for the offense of simple possession of
marijuana is sufficient to trigger scrutiny under s. 7 of the Charter. However,
M’s desire to build a lifestyle around the recreational use of marijuana does
not attract Charter protection. For a rule or principle to constitute a principle
of fundamental justice for the purposes of s. 7, it must be a legal principle
about which there is significant societal consensus that it is fundamental to the
way in which the legal system ought fairly to operate, and it must be identified
with sufficient precision to yield a manageable standard against which to
measure deprivations of life, liberty, or security of the person”
o The delineation of the principles of fundamental justice must inevitably take
into account the social nature of our collective existence. To that limited
extent, societal values play a role in the delineation of the boundaries of the
rights and principles in question. However, the balancing of individual and
societal interests within s. 7 is only relevant when elucidating a particular
principle of fundamental justice. That done, it is not within the ambit of s. 7 to
bring into account such ‘societal interests’ as health care costs. Those
considerations will be looked at, if at all, under s. 1.
o A criminal law that is shown to be arbitrary or irrational will infringe s.
7.
o The issue of punishment should be approached in light of s. 12 of the
Charter (which protects against “cruel and unusual treatment or
punishment”), and, in that regard, the constitutional standard is one of
gross disproportionality. A finding that a particular form of penalty violates
s. 12 of the Charter may call for a constitutional rememdy in relation to the
penalty, but leave intact the criminalization of the conduct, which may still be
constitutionally punishable by an alternative form of penalty.
 Roach pp.6-7, 24-30
PAGES 6-7
o Criminal laws are primarily designed to denounce/punish inherently wrongful
behavior, and to deter people from committing crimes or engaging in behavior
that presents a serious risk of harm. Courts consider these purposes when
sentencing offenders, but they are also concerned with the incapacitation and
rehabilitation of the offender and providing reparations to the
victim/community
o Regulatory Offenses –
 MOST offenses are regulatory offenses that can be defined in
legislation enacted by the Fed Parliament, provinces, or municipalities.

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Includes traffic offenses, environmental offenses, offences regarding
participating in regulated activity without a license, harmful
commercial practices
 Punishment is usually a fine, but can include imprisonment, though the
accused is frequently a corporation that cannot be imprisoned
 PRIMARY PURPOSE of regulatory offenses is to deter risky
behavior and prevent harm before it happens, rather than to punish
intrinsically wrongful/harmful behavior
 *Standards to govern the investigation of regulatory offenses and
impose convictions are more favorable to the state than the
standards used for criminal offenses.
o Criminal Law and the Constitution
 Only FEDERAL PARLIAMENT can enact criminal laws (but
provinces, feds, and municipalities can enact regulatory offenses that
can be punished with imprisonment)
 A criminal law may be unconstitutional if it infringes a right or a
freedom protected under the Charter, and if cannot be justified under s.
1 as a reasonable and demonstrably justified limit on a right
 S. 7 and 11(d) of Charter = particularly important to criminal law:
 S. 7 provides that people cannot be deprived of life, liberty, and
security of the person except in accordance with the principles
of fundamental justice – since imprisonment affects liberty and
security of the person, criminal law must be in accord with the
principles of fundamental justice- the principles of fundamental
justice also support the procedural fairness of the criminal law
to ensure that the accused is treated fairly
 S. 11(d) protects the accused’s right to be presumed innocent
and to receive a fair and public hearing by an independent and
impartial court
o Substantive Fairness-
 A criminal law or regulatory offence can be declared invalid by the
courts if it results in an unjustified violation of a Charter right, such as
freedom expression, which has been interpreted broadly to include
non-violent attempts to convey meaning.
 Thus, offenses prohibiting hate literature, communication for
the purposes of prostitution, etc, must be justified under s. 1 of
Charter
 S. 7 principles of fundamental justice hae been interpreted as
prohibiting the use of vague, arbitrary, overbroad, or grossly
disproportionate laws, as well as the punishment of the morally
innocent who are not at fault and those who act in a morally
involuntary manner in dire circumstances where there was no
other realist choice but to commit the crime.
 Question of what constitutes “moral innocence” is complex and
depends on context – what is required to sustain a conviction
under s. 7 for murder or war crimes is quite different from

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what’s required to sustain a manslaughter conviction, which is
quite different from what is required for a conviction of a
regulatory offense
PAGES 24-30 – Criminal Law and the Constitution
o C’s division of powers, created in 1867, allows only the federal Parliament to
enact laws concerning criminal law and procedure, though the provinces can
enact regulatory offenses to help them govern matter within their jurisdiction,
such a liquor licensing. Feds can also enact regulatory offenses to help it
govern matters within its jurisdiction, like navigation and shipping.
 Whether offense is within federal or provincial jurisdiction depends on
the law’s primary purpose
o 1982 Charter places new restraints on state’s ability to enact and apply
criminal laws by recognizing rights such as right to be free of unreasonable
searches and seizures, the right to counsel, right to a fair trial. Most Charter
litigation occurs in criminal cases (because that is when people are motivated
to invoke their Charter rights)
 Many charter rights require procedural fairness or due process in the
investigation and prosecution of crimes. Also, that substance of law is
fair, does not punish person who is morally innocent, or is only
exercising constitutional rights like freedom of expression
 A law/practice can infringe a Charter right because it has the
effect of violating an individual’s right, even if was enacted with a
valid/legitimate purpose
 IF criminal or regulatory offence or procedural provision violates
a right protected under the Charter, the government will have an
opportunity to justify it under s. 1 of the Charter as a reasonable
limit that is demonstrably justifiable in a free and democratic society.
 Government must demonstrate not only that the law has
been enacted for an important purpose, but also that there is
no other reasonable manner to fulfill that purpose except by
violating the accused’s rights, and that the good that the law
achieves in advancing its objective outweighs the harm to the
Charter right
 If the violation of the accused’s rights is not justifiable under s.
1, variety of constitutional remedies possible, including
terminating prosecutions, excluding relevant evidence
 Other people impacted by crime, such as victims, witnesses, media,
may also have Charter rights such as rights to privacy and the equal
protection and benefit of the law. Still need to balance competing
interests in criminal laws and prosecutions, but Charter provides a
framework
o Federal Jurisdiction over Criminal Law
 S. 91(27) of Constitution Act of 1867 - only Federal Parliament can
enact laws concerning criminal law and procedure
 Most criminal law contained in CC, though Controlled Drugs and
Substances Act (CDSA) and Youth Criminal Justice Act (YCJA) are

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often also considered criminal law
 Not all laws enacted by Feds= valid crim laws – for example, laws
banning sale of margarine/ establishing alcohol content of light beers
enacted by Feds were NOT valid criminal laws
 Courts are generous in allowing Feds to enact laws that facilitate the
administration of criminal law, like detention of criminally insane, etc,
upheld as valid criminal law
 Parliament’s law power has also been interpreted broadly to allow
laws restricting the advertising of tobacco, prohibiting pollution,
prohibiting the possession of marijuana, requiring guns to be
registered, and regulating assisted suicide.
 When Feds rely on criminal law power, must emphasize the use of
prohibitions and punishments, as opposed to other forms of
regulation such as licensing/inspection, though something that is not
necessarily immoral can be prohibited by crim law
 Unlike US and Australia, provinces can’t make laws with the
dominant purpose of prohibiting acts by criminal sanction- A
provincial offense or a municipal by law will be unconstitutional if
its prime purpose is to punish behavior as criminal.
 Before Charter, these restrictions helped indirectly protect civil
liberties
o Provincial Jurisdiction to Enact Regulatory Offenses
 S. 92(15) of Constitution Act 1867 – provinces and their delegates,
municipalities, can create offenses punishable by fine, penalty, or
imprisonment for matters within their jurisdiction
 Provinces have been allowed to enact traffic offenses, make
classifications and censorship of films, and compulsory
treatment of heroin addicts
 Provincial offenses constitutional if dominant purpose is to
regulate some matter within areas of provincial
jurisdiction, such as property and civil rights and matter of a
local and private nature
 Provincial offenses are classified as regulatory or public
welfare offenses.
 Standard for investigation and conviction of regulatory
offenses are generally less protective of the accused than
those for criminal offenses
 Feds can also enact regulatory offences in areas of its jurisdiction,
like fisheries
 Way more regulatory offenses than criminal offenses
o Prosecutors, Police, and Prisons
 AG of PROVINCE will generally prosecute CC offenses, while
FED AG may prosecute drug offenses.
 Same division of labor for policing within the provinces
being able to establish police forces to enforce CC (often
delegated to municipalities), and feds able to create police

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to investigate other offences under fed law.
 Many provinces purchase policing services from Royal
Canadian Mounted Police, the Fed police force
 Peace officers (including public police, customs officers, etc.)
have special powers, duties, and protections under CC and
Charter
 Ordinary individuals have legal powers to arrest a person
fleeing from commission of a serious offense and to go
before a judicial official to establish reasonable and probable
grounds that a criminal offense has been committed
 Provinces jurisdiction over those sentenced to <2 years
imprisonment; Feds administer penitentiaries for those sentenced to
2+ years
 Provinces generally administer probation orders, while
provincial and federal parole boards administer gradual release
or parole from imprisonment before offender’s sentence
expires
o Trials and Trial Courts
 Majority of crim cases resolved in provincial courts – judges of
provincial courts are appointed and can’t sit with a jury
 Provincial courts can hear most serious offenses as long as
accused decides to be tried in provincial court w/o jury or a
preliminary inquiry to decide whether enough evidence to put
accused on trial
 Least serious indictable offenses can only be tried in provincial
court
 Summary convictions and Provincial (regulatory) offenses enacted
under 92(15) of CA1867 tried in provincial court – generally punished
only by up to 6 months imprisonment and $2000 in fines
 Growing number of offenses, such as sexual assault, if
prosecuted by way of summary conviction can be punished by
up to 18 months imprisonment
 “Hybrid offenses” – Crown has discretion to prosecute offense by
indictment or as less serious summary conviction offense – if
prosecuted as summary conviction offense, accused NOT entitled
to preliminary inquiry or trial by jury, BUT maximum
punishment is limited
 <18 usually tried in youth court, which in most provinces is the
provincial court
 However, in some cases adult sentences can be imposed on
youth offenders
 SC has held that presumption that youth would receive an adult
sentence for specified offenses violates principle of
fundamental justice, which presumes young people are less
blameworthy for crimes bc of their age, vulnerability, and
reduced capacity for moral judgment

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Only federally appointed superior court judges can sit with a jury
in what is known in different provinces as Superior Court, Supreme
Court, or Queen’s Bench
 Murder charges must be tried by a superior court judge,
usually with a jury
 Superior court judges may also try most other indictable
offenses, provided the accused elects to be tried in this higher
level of court
 Trial judges must provide reasons for their decisions, and those
reasons should set out all the elements of an offence for a
conviction, though reasoning can be briefer in the case of acquittal
(this also reflects the fundamental asymmetry of criminal law in
which state has to establish guilt beyond a reasonable doubt and
accused is given the benefit of reasonable doubts about guilt)
o Appeals and Appellate Court
 Canada has generous appellate structure that allows both the Crown
and the accused wide rights of appeal
 Summary conviction offenses – appeals can be made by
either the accused or the prosecutor; heard by superior court
judge; further appeals on questions of law go to Court of
Appeal
 Indictable offenses – appeals go directly to provincial Court of
Appeal with federally appointed judges that hear appeals in
panel of 3-5 judges
 Accused has broad rights of appeal and can appeal matters of fact or
law, as well as the fitness of the sentence – Accused’s appeal can be
ALLOWED on 3 GROUNDS:
 1. The conviction is unreasonable or cannot be supported
by the evidence;
 2. The conviction entails a miscarriage of justice; or
 3. The trial judge made an error of law (in this case, appeal
can be denied even if error of law made if despite that legal
error, “no substantial wrong or miscarriage of justice
occurred”)
 If accused’s appeal is successful, new trial usually ordered, but
sometimes an acquittal order will be entered
 Minister of Justice can also order a new trial or direct an appeal
to a provincial Court of Appeal when “satisfied that there is a
reasonable basis to conclude that a miscarriage of justice
occurred.
 Prosecutor may appeal questions of law and the fitness of sentence
to the Court of Appeal
 If appeal ALLOWED, and prosecutor can show outcome
would not have been the same without the error, new trial
ordered, and in rare cases, appeals court can enter a conviction,
though this can’t be done if accused was acquitted by jury

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 Right of prosecutor to appeal acquittals and have new trial
ordered is broader in Canada than US or UK
 Either side can appeal to SC – appeals to SC are of right on any
question of law from which a judge in the provincial Court of Appeal
dissents, and by leave on any matter of law of national importance
b) The Canadian Charter of Rights and Freedoms - The Canadian Charter of Rights
and Freedoms (the “Charter”) imposes limits on the jurisdiction of all governments,
subject to s. 1, the “reasonable limits” clause, and the seldom-used s. 33 “notwithstanding
clause.” Since its passage in 1982, the Charter has had such a profound impact on
criminal law and procedure that all criminal practitioners need to develop expertise in its
operation. 

Section 52 of the Constitution Act, 1982 can be used by courts to invalidate offences that
Parliament has created, and courts have done so on a number of occasions, but this is not
common. It has also been used to strike down rules of criminal procedure, although this
too is uncommon. 

 Read Canada (Attorney General) v. Bedford, 2013 SCC 72 as an illustration of
criminal offences being struck down. 

o Prostitutes challenged CC provisions 1985 C-46, s. 210, s. 212(1), s. 213(1)
which made it an offense to be in a bawdy house (as it relates to prostitution),
live on the avails of prostitution, or communicate in public for the purpose of
prostitution. Argued that these put their safety at risk by preventing them from
implementing certain safety measures, like screening clients or hiring security
guards, and that 213 (communicating) infringed freedom of expression under
s. 2 of Charter, and that none of the provisions were saved under s. 1.
o HELD: All declared inconsistent with the charter by SC. They infringe the s.7
rights of prostitutes by depriving them of security of person in a manner not in
accordance with the principles of fundamental justice
 The common law principle of stare decisis is subordinate to the
Constitution and cannot require a court to uphold a law which is
unconstitutional
 The laws negatively impact security of the person rights or prostitutes
and thus engage s. 7. The proper standard of causation is a flexible
“sufficient causal connection” standard.
 The applicants have also established that the deprivation of their
security of the person is not in accordance with the principles of
fundamental justice: principles that attempt to capture basic values
underpinning our constitutional order: in this case the basic values
against arbitrariness (where there is no connection between the
effect and the object of the law), overbreadth (where the law goes too
far and interferes with some conduct that bears no connection to its
objective), and gross disproportionality (where the effect of the law
is grossly disproportionate to the state’s objective).
 All 3 principles compare the rights infringement caused by the
law with the objective of the law, not with the law’s
effectiveness; they do not look to how well the law achieves its

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object, or to how much of the population he law benefits or is
negatively impacted. The analysis is qualitative, not
quantitative. The question under s. 7 is whether anyone’s
life, liberty, or security of the person has been denied by a
law that is inherently bad; a grossly disproportionate,
overbroad, or arbitrary effect on one person is sufficient to
establish a breach of s. 7.
 Read R. v. Oakes, [1986] 1 S.C.R. 103 as an example of a rule of criminal procedure
being struck down, and note the operation of section 1 as a limiting provision
(though be aware that the approach has evolved since Oakes was decided: see
the discussion in Roach, below). The concepts identified in Oakes will be revisited
below in discussing the burden of proof. 

o Accused charged with unlawful possession of narcotic for purpose of
trafficking contrary to s. 4(2) of Narcotic Control Act (“NCA”), but was
convicted only of unlawful possession. After trial, judge made finding that
beyond a reasonable doubt that respondent was in possession of narcotic,
respondent brought motion challenging constitutional validity of s.8 of NCA,
which provides that if the court finds accused in possession of drug, accused is
presumed to be in possession for the purpose of trafficking and that, absent
the accused establishing to the contrary, he must be convicted of
trafficking. Ontario CoA on appeal by Crown found the provision to be a
“reverse onus” clause and held it to be unconstitutional in violation of the
presumption of innocence in s.11 of Charter. Crown appealed to SC and stated
constitutional question was whether s. 8 of NCA violated s.11 of Charter
and was therefore of no force and effect. Inherent in this question, given a
finding that s.11 had been violated, was the issue of whether or not s.8 of
the NCA was a reasonable limit prescribed by law and demonstrably
justified in a free and democratic society for the purpose of s.1 of the
Charter.
o HELD: Appeal dismissed – answered question in affirmative – s.8 of NCA
NOT reasonable limit demonstrably justified in a free and democratic society
under s.1 of Charter.
 Presumption of innocence lies at heart of crim law, is expressly
protected by s.11 of Charter and inferentially by s.7’s right to life,
liberty, and security of the person. Right to be presumed innocent
requires, at a minimum, that: (1) an individual be proven guilty beyond
a reasonable doubt; (2) State must bear the burden of proof; and (3)
criminal prosecutions must be carried out in accordance with lawful
procedures and fairness.
 Provisions which requires an accused to disprove on a balance of
probabilities the existence of a presumed fact, which is an important
element of the offense in question, violates the presumption of
innocence in s. 11. The fact that the standard required on rebuttal is
only a balance of probabilities does no render a reverse onus clause
constitutional.
 The standard of proof under s.1 is a preponderance of probabilities. 2

12
central criteria must be satisfied to establish, under s.1 that a limit
is reasonable and demonstrably justified in a free and democratic
society: 1) objective to be served by the measures limiting a
Charter right must be sufficiently important to warrant
overriding a constitutionally protected right or freedom (at a
minimum, an objective must relate to societal concerns which are
pressing and substantial in a free and democratic society before it can
be characterized as sufficiently important); 2) the party invoking s. 1
must show the means to be reasonably and demonstrably justified
(this involves a form of proportionality test involving three important
components: a) measures must be fair and not arbitrary, carefully
designed to achieve the objective in question and rationally
connected to that objective; B) means should impair the right in
question as little as possible; C) there must be a proportionality
between the effects of the limiting measure and the objective – the
more severe the deleterious effect of a measure, the more
important the objective must be)
 HERE: Parliament’s concern that drug trafficking be decreased was
substantial and pressing objective of protecting society, but NO
rational connection between the basic fact of possession and the
presumed fact of possession for the purpose of trafficking
 Roach pp. 31-86. 

o Criminal Law and the Charter of Rights
 Charter added in 1982 to Constitution
 Charter’s greatest impact has been on criminal justice system
 S. 24 of Charter – courts can provide range of remedies if police,
prosecutors, or prison officials violate Charter rights of accused
(including stay of proceedings, release of the person, exclusion of
unconstitutionally obtained evidence).
 S. 52 - Crim laws passed by Parliament can also be struck down under
s. 52 if they are found to violate Charter rights and gov can’t justify
that violation under s.1 of the Charter as a proportionate and
reasonable means to fulfill an important purpose
 But remember that Parliament and provincial legislatures retain
the final, but very rarely used, option to declare that a law will
operate notwithstanding the fundamental freedoms, legal
rights, or equality rights otherwise guaranteed in the Charter
o 1. Division of Powers and the Charter Compared
 Division of powers from CA1867 and Charter provide complex
constitutional framework that governs the enactment of criminal and
regulatory offenses
 Good illustration = legislation requiring Sunday observance: Early
1900s, provincial legislation requiring Sunday observance struck down
as criminal law only Parliament could enact; P enacted Lord’s Day
Act, upheld as valid criminal law, but by that time Charter enacted, SC
decided that law with religious purpose of compelling observance of

13
Sabbath was violation of freedom of conscience and religion of s.2(a)
of Charter, and since ased on purpose contrary to Charter, couldn’t be
justified under s.1 of Charter. Year later, SC had to decide whether
provincial Sunday closing law with secular purpose of common rest
day was constitutional, found that it violated s.2 of Charter, but that
provincial gov had justified the law under s.1 as reasonable limit.
Legislatures in many Canadian jurisdictions had last word when
repealed the laws in response to public opinion.
o 2. The Charter and the Investigation of Crime
 Before Charter, criminal trial cts generally not concerned with manner
in which police investigated crime
 Only real restraint was that confessions had to be proven
voluntary
 Charter changed this by recognizing rights, including:
 S.8 – Right to be secure against unreasonable search/seizures
 S.9 – rights not to be arbitrarily detained/imprisoned
 S.10(a)&(b)-rights to be informed of reason for arrest/detention
and to retain/instruct counsel w/o delay
 S.24(2)-VIOLATION of any of these Charter rights can result in
exclusion of relevant evidence from trial if its admission will bring the
administration of justice into disrepute
 A. Search and Seizure (s.8) – everyone has a right to be secure
against unreasonable search and seizure
 i. Reasonable Expectations of Privacy
o This provision protects all reasonable expectations of
privacy, and such expectations aren’t sacrificed just
because an accused was committing a crime
o Ct has held right to privacy includes right of anonymity
with respect to Internet usage and that this protection
applies when police seek subscriber info from internet
provider in child porn investigation
o Whether an expectation of privacy is reasonable
depends on context
 Exs: Heat detectors of heat from homes for drug
investigations do NOT invade reasonable
expectation of privacy bc don’t know what heat
is caused by; Garbage searches when put out for
collection do NOT invade reasonable
expectations of privacy
 Individuals/Businesses operating in regulated
field have diminished expectation of privacy
over their business records
 BUT SC made clear that reasonable
expectations of privacy/warrant requirements
apply when regulators “cross the Rubicon”
from regulation to prosecution (when

14
predominant purpose of their inquiries is the
determination of penal liability)
 Becomes complex when regulatory search and
seizure powers intertwined with search for
evidence of crime – in some contexts, such as
use of sniffer dogs, all the Ct requires is a
reasonable suspicion to justify a search
 Besides regulatory, others have diminished
expectations of privacy: individual who stays
at intimate friend’s home may have no right
when friend’s house searched, passengers in car,
students in schools, prisoners, drivers,
individuals going through customs, those whose
power consumption can be accessed through
commercial records.
 ii. Warrant Requirements- if there is a reasonable expectation
of privacy, the state must generally obtain prior judicial
authorization to authorize a search and seizure, except if
there are exigent circumstances that make it impossible to
obtain a warrant
o Police need not wait to obtain a warrant IF there is
imminent danger that evidence of a crime will be
destroyed or that someone will be harmed
o S.8 requires some form of accountability for searches
even in such exigent circumstances – Ct struck down
scheme of warrantless electronic surveillance in exigent
circumstances on the basis that the scheme did not even
require notification after the fact of those who had their
conversations electronically recorded
o Judicial Authorization – when prior judicial
authorization sought for search & seizure (S&S), should
generally be granted only if there are reasonable and
probable grounds established on oath to believe that
an offence has been committed and that the search will
reveal evidence of it. Searches must also be authorized
by law and the law must be reasonable
o Ct’s Decisions & Parliament’s Response:
 In Ct’s decision that wearing a wire w/o
warrant violated s.8, P enacted provisions
allowing judges to issue such warrants and
allowing use of wires w/o warrant in urgent
circumstances and to prevent bodily harm
 Ct’s decision holding warrantless use of
videotaping to violate s.8, led to enactment of
general warrant provision allowing judge to
grant a warrant authorizing any investigative

15
technique that, if not authorized, would
constitute unreasonable S&S
 SC declared CL rule allowing warrantless
search of dwelling house in order to make arrest
in violation of s.8, P enacted new provision that
allowed such warrants to be granted and also
authorized warrantless entries into dwelling
houses to make arrests in exigent circumstances
o Search warrants should in most circumstances
specifically authorize the search of a computer
because of the vast and private information they hold
 Iii. Consent Searches and Searches Incident to Arrest –
Police don’t need warrant if person consents to search or
they’re conducting a reasonable search incident to arrest.
o Searches incident to arrest must NOT be conducted in
an abusive fashion and do NOT include power to seize
bodily samples for DNA testing or to take body
impressions
o Power to conduct a strip search does NOT follow
automatically from power to conduct a less intrusive
search incident to arrest – must be reasonable and
probable grounds for concluding a strip search is
necessary in the particular circumstances of the arrest
in order to discover weapons or evidence
o Power of search incident to arrest DOES include power
to search a suspect’s cell phone provided search is done
truly incidental to arrest and is fully documented
 Iv. Remedies for Breach
o Evidence obtained in violation of s.8 will NOT
automatically be excluded under s.24(2) of Charter –
instead, judges apply 3-Part Test for Whether
Evidence Excluded: examining: (1) seriousness of the
Charter violation; (2) the impact of the Charter
violation on the accused’s Charter-protected interest;
and (3) society’s interests in an adjudication on the
merits (Cts balance seriousness of 1 and impact of 2
against 3 harm to the repute of the administration of
justice caused by exclusion of the evidence)
 B. Arbitrary Detention and Imprisonment
 S.9 of Charter provides that everyone has right not to be
arbitrarily detained or imprisoned
 S.9&10 have broad definitions of detention to include
detention with respect to a demand or direction that may have
legal consequences, such as a demand for a breath sample,
physical restraint, and psychological compulsion that leaves
individuals with the reasonable belief that they have no choice

16
but to comply with police
 People are detained when pulled over by police, so laws
authorizing random vehicle stops violate s.9 (though upheld
by s.1) because they provide no objective criteria to govern
who is detained. Random stops permissible when undertake for
traffic safety reasons.
 SC held NOT detained under s.9 if questioned by police in
non-adversarial manner, for example in emergency calls or
accidents. Other relevant factors include: nature of police
conduct and characteristics of individual, including age,
minority status.
 R v. Grant – SC 2009 – accused was NOT detained when
police officer asked him his name/address but WAS detained
when police officer told him to keep his hands in front of him
 S.9 protects against arbitrary detention – that is, detention
not authorized by law of by laws that are themselves arbitrary,
or if the officer was “biased towards a person of a different
race, nationality, or color,” or had “a personal enmity” toward
particular detainee
 SC created powers of investigative detention – allow person
to be briefly detained if reasonable grounds to suspect that he is
connected to a particular crime and the detention is reasonably
necessary – in such cases, but be reasonable individualized
suspicion – and if it goes beyond a brief detention it may be
characterized as an arbitrary detention
 Remedies for Arbitrary Detention – limit of what criminal
court can do, can exclude evidence under s.24(2), though in
Grant ct didn’t exclude evidence of gun and drugs discovered
during arbitrary detention of African-Canadian man, criminal
courts can’t award damages, but can reduce accused’s sentence
if convicted, and may halt prosecution if violation is very
serious
 C. Right to Counsel
 i. Trigger upon Arrest or Detention – s. 10(b) of Charter
provides those who are subject to arrest or detention with both
(1) a right to retain and instruct counsel w/o delay and (2) a
right to be informed of that right
o Detention interpreted broadly – again, includes not
only deprivation of liberty by physical constraint, but
also assumption of control over person by a demand
with significant legal consequences that would
otherwise impede access to counsel and psychological
compulsion in the form of reasonable perception of lack
of freedom of choice. Even 5 min detention in back of a
police car may require right to counsel warning if
police ask questions. Person detained when required to

17
provide breath sample, though denial of right to counsel
of person who must give breath sample upheld under
S.1, and this has been extended to questions to driver
about drinking/roadside sobriety tests – but these limits
under s.1 only apply roadside for a limited time (person
asked to give breath sample at police station must be
informed of right to counsel)
 ii. Informational Requirements
o Upon arrest/detention, police must inform detainees:
(1) that they can consult a lawyer and (2) about the
availability of publically funded legal aid for those
who cannot afford a lawyer and duty counsel who
can provide temporary legal advice regardless of the
suspect’s financial status
 Most provinces have toll-free phone number
that allows detainees to contact duty counsel
24hrs, and police must generally inform
detainees of these services, BUT SC has
refused to require governments to establish
such services despite evidence they’re efficient
& practical
o S.10(a) of Charter requires a person to be informed
promptly of the reason for detention/arrest
 Note – This does NOT require explicit warning
if matter being investigated was obvious
 If attempted murder becomes murder after
victim dies, accused should be informed and
have another chance to consult counsel
 iii. Implementation Requirements
o Once detainee asks to speak to a lawyer, police must
facilitate access to counsel by offering phone use
 Officer doesn’t have to give own cell phone, but
must facilitate access to phone even if accused
in hospital
o Police must hold off eliciting evidence until suspect
has had reasonable opportunity to contact counsel
o Detainee must exercise right to contact counsel with
reasonable diligence and police do not have to hold
off in cases where detainee wishes to speak to
particular lawyer who is likely to be unavailable
 iv. Continued Interrogation (*DIFFERENT FROM US)
o Once accused given reasonable opportunity to consult
counsel, questioning may resume without again
informing the accused of right to counsel or providing
another reasonable opportunity to consult counsel
o There is no right to have a lawyer present during

18
police questioning as there is in the US, but the
police may have to give the detainee another
opportunity to speak with counsel before asking
detainee to engage in non-routine procedures such
as polygraph or line-up
o **Police can continue to interrogate even when
accused and/or counsel indicate desire not to talk
and interrogation is lengthy and involves
confronting accused with fake evidence
o Right to counsel may be violated by prolonged
questioning w/o counsel present, police denigration
of counsel; offer of plea bargain w/o counsel present
o Not required to video or audio record interrogations
 v. Waiver of Right to Counsel
o Right to counsel subject to informed and voluntary
waiver
o Not waived when: Murder suspect was too drunk to be
aware of consequences; accused people answering
baited questions or participating in line up before being
given reasonable opportunity to consult counsel;
accused who asked about legal aid but was not
informed about it and then answered questions; accused
who confessed after police insulted his chosen counsel
 vi. Remedy for Breach of Right to Counsel
o Statements taken in violation of right to counsel will
presumptively be excluded because of the importance
of the police respecting the right to counsel, the adverse
effect of such statements on Charter-protected interests
such as right to silence, and concerns about the
reliability of statements taken in violation of Charter,
but this exclusion of evidence taken in violation of
10(b) is not automatic, especially in case of minor
violations
 d. Entrapment
 Pre-Charter, Cts reluctant to recognize defense of entrapment
o R v. Amato(1982) – SC upheld conviction of drug
trafficking even though undercover police repeatedly
solicited accused even threatening violence. In Dissent,
Estey J. concluded entrapment should be recognized as
CL defense.
 R v. Mack (1988) – SC recognized defense of entrapment –
SC stressed availability of defense even though accused
committed the AR with requisite degree of fault
 Finding of Entrapment results in permanent stay of
proceedings, rather than acquittal because it is independent
of guilt or innocence

19
 Entrapment must be established by accused on balance of
probabilities, and determination can be left to after
determination of guilt or innocence
 Judge, not jury, decides whether entrapment made out bc
judge is best person to determine whether state’s activities
would bring administration of justice into disrepute
 Entrapment occurs when: state offers person an opportunity
to commit a crime w/o reasonable suspicion that the person
was engaged in criminal activity or while not engaged in a
bona fide inquiry into crime in a high-crime area. State must
provide an opportunity to commit a crime and a simple drug
buy may not even constitute offering an opportunity. Even if
there is reasonable suspicion or a bona fide inquiry, entrapment
will also occur if the state goes beyond providing the accused
with an opportunity to commit a crime and actually induces its
commission.
 Reasonable suspicion is less than reasonable and probable
grounds to believe a person has committed a specific crime
o Mack – Ct found police acted with reasonable suspicion
when conducting 6-month drug sting bc accused was
former drug user w/ several drug convictions even
though told police informer he was only interested in
real estate
o Barnes (1991) – police did NOT have reasonable
suspicion, even though hunch was correct that scruffily
dressed male who looked around a lot was selling pot
bc cop’s impressions were too general and subjective
BUT no entrapment bc police were acting pursuant to a
bona fide inquiry into criminal activity by offering a
person an opportunity to commit the crime because he
was present in a place associated with the particular
criminal activity- “random virtue testing”
 SC’s “random virtue testing” approach here
allows random virtue testing in areas
associated with drugs/prostitution, so police
can offer someone an opportunity to commit
one of those crimes simply because that person
is in an area associated with that crime, even if
they do not have a reasonable suspicion that the
person ins engaged in the particular time
 Even if have reasonable suspicion or acting on a bona fide
inquiry, police should never go beyond providing suspect
with opportunity – can’t induce commission of crime –
cross this line if their conduct is so objectionable that it brings
the administration of justice into disrepute and would have
induced an average person to have committed the crime

20
Examples:
o In extensive “Mr Big” operations in which undercover
cops pose as criminals and attempt to have a suspect
confess to a crime as a pre-condition of joining a
criminal organization, SC indicated that an abuse of
process would occur where the police overcome the
will of the accused and coerce a confession by, for
example, violence or threats of violence or exploiting
vulnerabilities such as mental health and addiction
issues
o Few phone calls to an old friend to set up a drug buy do
not go over the line, but persistent solicitation
accompanied by veiled threats does
o Brief convo between undercover officer and person
selling drugs not entrapment
 Entrapment defense, if established on a balance of
probabilities, will result in a permanent stay of proceedings
against the accused
o Courts will also examine the proportioantality between
the conduct of the state and the accused and whether the
state had instigated the crime and exploited the accused
o Courts will also balance the competing interests in
stopping and conducting a prosecution before entering a
stay of proceedings as a remedy
o Fact that police acted illegally does not automatically
merit a stay unless the activity would shock the
conscience of the community and be so detrimental to
the proper administration of justice that it warrants
judicial intervention
o When determining whether police have gone beyond
providing an opportunity, focus is on the propriety of
the conduct of the police and their agents
o Can be entrapment even if accused was predisposed to
commit the crime and had the intent to commit the
crime
o Fact that police acted illegally does not automatically
result in entrapment and stay of proceedings
o No entrapment defense when entrapped by private
(non-state) actors, but depending on threats used, may
have defense of duress
o 3. Charter and Criminal Trial Process
 Charter plays important role in ensuring trial is conducted in fair
manner:
 S.7 provides the basic guarantee that everyone has the right to
life, liberty, and security of the person and that these rights can
be taken away only “in accordance with the principles of

21
fundamental justice”
 S. 11 – specific rights possessed by any person charged with a
criminal or regulatory offense:
o 11b – right to be tried within a reasonable time
o 11c – right not to be compelled to be a witness in
proceedings against that person in respect of the offense
o 11d – to be presumed innocent until proven guilty
according to law in a fair and public hearing by an
independent and impartial tribunal
o 11e – to reasonable bail with just cause
o 11f – to trial by jury where the max punishment for
offense is imprisonment for 5 or more years
o 11h – to protection from double jeopardy
 a. Disclosure
 One of most important rights in criminal trial process is
Crown’s obligation to disclose to the accused all relevant
evidence in its possession
 Disclosure necessary to protect accused’s right to make full
answer and defense under s.7
 SC in R v. Stincombe (1991) – “fruits of the investigation
which are in the possession of counsel for the Crown are not
the property of the Crown for use in securing a conviction but
the property of the public to be used to ensure that justice
is done. In contrast, the defense has no obligation to assist the
prosecution and is entitled to assume a purely adversarial role”
 Generally, all relevant evidence in Crown’s possession
should be disclosed to accused, no distinction between
inculpatory/exculpatory
 Police also have duty to participate in this disclosure,
including disclosing misconduct relating to the investigation
or that could reasonably impact the case against the accused
 Crown can delay disclosure of evidence, such as witness
statements, for legitimate reasons, such as protecting informers
 Controversial Decisions – SC ruled Crown must disclose to
the accused all medical and therapeutic records in its
possession without regard to the privacy and equality
interests of complainants in sexual assault trials and stayed
proceedings because a rape crisis center had shredded its
records of an interview with complainant – Parliament
responded with legislation restricting the accused’s access
to personal records of complainants in sexual assault cases,
even those in the Crown’s possession – legislation upheld as
reasonable balance of accused and complainant’s rights
 Criminal courts may also award costs and order new trials
as remedies for disclosure violations
 b. Right to Full Answer and Defense

22
 S.7 of Charter interpreted to provide accused with a right to
make a full answer and defense in response to criminal charges
 Prejudice of evidence must substantially outweigh its
probative value before accused is prevented from calling
evidence
o R v. Seaboyer – 1991 – SC held that 277 of CC, which
bans evidence about sexual reputation to challenge or
support the credibility of the complainant in a sexual
assault trial, did not violate s.7 because no logical link
between one’s sexual reputation and one’s truthfulness,
HOWEVER, SC found that “rape shield” provision that
restricted admissibility of complainant’s prior sexual
conduct with people other than the accused did violate
the accused’s right to make full answer and defense in
part because such conduct might be relevant to the
controversial defense that accused honestly but perhaps
not reasonably mistakenly believed complainant
consented – Parliament responded by modifying the
mistaken belief in consent defense to establish a new
procedure requiring judges to balance accused’s right to
make full answer/defense against other factors,
including society’s interest in encouraging the reporting
of sexual assaults, the need to remove discriminatory
bias from fact-finding, and potential prejudice to the
complainant’s rights of privacy, personal security, and
the full protection and benefit of the law
 Right to full answer/defense also requires accused to be able to
conduct thorough cross-examination of Crown’s witnesses, and
to call own witnesses
 c. Right to Reasonable Bail
 11e of Charter – right to not be denied reasonable bail w/o just
cause
 SC, despite recognition of difficulty in predicting future crime,
has upheld denial of bail to prevent substantial likelihood of
future crime or interference with the administration of justice
on basis that “bail system … does not function properly if
individuals commit crimes while on bail”
 Ct also upheld reverse onus requiring those charged with drug
trafficking to establish why they should not be detained
 Ct struck down pre-trial detention in the public interest as
excessively vague on basis that “a standardless sweep does not
become acceptable simply because it results from the whims of
judges and justices of the peace rather than the whims of law
enforcement officials” – Parliament responded in 1997 by
authorizing the denial of bail for “any other just cause” and
“where detention is necessary in order to maintain confidence

23
in the administration of justice having regard to all the
circumstances, including the apparent strength of the
prosecution’s case, the gravity of the nature of the offense, the
circumstances surrounding its commission and the potential for
a lengthy term of imprisonment” [page 47-48]
o SC held that this did not violate 11(e), except for the
phrase “any other just cause” which did violate it. SC
subsequently ruled that it was error for judges to
reserve the denial of ail on public grounds to rare or
exceptional cases- Court stressed importance of judge
examining all the circumstances but also concluded: “if
the crime is serious or very violent, if there is
overwhelming evidence against the accused and if the
victim or victims were vulnerable, pre-trial detention
will usually be ordered.”
 d. Trial in a Reasonable Time
 s. 11b – Crown’s obligation to provide a trial in a reasonable
time
 If 11b right is violated, accused is entitled to a stay of
proceedings
 Right does not usually apply to delay before a charge is laid,
and no statute of limitations that prevents prosecution of
indictable offences omitted long ago (6 mo SoL in less serious
summary conviction offenses, but can be waived by agreement
btw prosecutor and accused to avoid more serious charges) –
though stay of proceedings may be entered if passage of time
makes it impossible to exercise right of full answer & defense
 Whether 11b right has been violated depends on: length of
delay (delay of >8-10 mo is suspect), explanation for the delay
(whose fault), whether accused waived right by consenting to
delay, whether accused has suffered prejudice.
o Prejudice was stressed in cases after 1990 Askov
decision, indicating delays beyond 6-8 months were
unreasonable, which led to stay of more than 50,000
charges
o Even in more deferential approach, limits to what will
be tolerated, in R. v Godin, 30-month delay (where D
did not contribute to delay) led to stay of proceedings in
sexual assault case
 e. Pre-Trial Publicity
 CC provides mandatory publication bans at accused’s
request on evidence heard at bail hearings or preliminary
inquiries
o Upheld by SC as reasonable limit on freedom of
expression bc of importance of ensuring fair trial and
expeditious bail process

24
o Trial proceedings when jury not present, like voir dire
on admissibility of evidence, also cannot be published
until jury retires to consider its verdict
 Discretionary Publication Ban must be justified on basis
that it is necessary to prevent a real and substantial risk to
the fairness of the trial bc alternatives would not prevent the
risks – Cts should attempt to harmonize public’s right to
freedom of expression with accused’s right to fair trial by
devising, where possible, alternatives short of publication
bans, such as: adjournments of trials; changing locations;
allowing the accused to question prospective jurors more
closely; sequestering juries
 If publication ban only way to protect fair trial, must be as
limited in scope and time as possible, and Ct must determine
that good achieved by ban outweighs harm
 f. Right to a Jury Trial
 11f - Accused facing 5 years imprisonment or more has
right to trial (but if fail to appear for trial, can later be denied
jury)
 CC553 – If charged with offense NOT listed in CC553, may
elect a trial by jury
 Jury is 12 citizens who should represent fair cross-sample of
public in the place where case is tried (but no right to people
from groups represented in proportion to their population)
 Ct held dramatic underrepresentation of aboriginal people is
consistent with Charter as long as reasonable efforts made to
select impartial and representative jury
 Selecting Jury – Crown and Accused can challenge
prospective jurors for cause, most important ground being that
juror not impartial, and can ask questions that a judge has
decided respond to realistic potential for partiality
 ***LAST TWO JURORS CALLED, AS OPPOSED TO
JUDGE, DECIDE WHETHER NEXT JUROR IS
IMPARTIAL
 Accused and Crown each have same limited number of
peremptory challenges they can use to remove prospective
jurors without giving any reasons
 Jury must agree UNANIMOUSLY or they are a “hung
jury” and a new trial must be held
 Instruction by judge that jury must convict violates 11f right to
trial by jury
 Except in limited circumstances, it is a criminal offense for a
juror to disclose information about jury’s deliberation
 11d – protects right to fair and public hearing by an
independent and impartial tribunal
o Judges must have security of tenure and financial

25
security and independence over their administration
o Provincial judges and even part-time judges have been
held sufficiently independent, but military officers
acting as court martial judges have not
 Accused’s right to fair trial will in more complex cases
include right to have a lawyer if accused cannot afford one
o Accused has right to effective assistance of counsel
o To violate that right, accused must establish both that
performance by the lawyer was unreasonable AND that
it caused prejudice in the form of miscarriage of justice
 g. Right to be Presumed Innocent
 11(d) also provides that accused has the right to “be
presumed innocent until proven guilty according to law in a
fair and public hearing by an independent and impartial
tribunal”
o Presumption of innocence = burden on Crown to prove
accused’s guilt by a high degree/quantum of proof
 i. Quantum of Proof
o Proof beyond a reasonable doubt – not easily defined,
but requires Crown to go beyond the burden used in
private law cases of proving more probable than not,
but courts should NOT instruct juries by saying it is
something significantly higher than 51%
o R. v. Lifchus (1997) – SC held that meaning of
reasonable doubt must be explained to jury, and
attempted to do that – indicated jury should be told that
the reasonable doubt standard is related to the
presumption of innocence, requires more than proof
that accused is probably guilty, but does not require
proof to an absolute certainty. A reasonable doubt is
not a frivolous or imaginary doubt, but rather a doubt
based on reason and common sense that must logically
be derived from evidence or absence of evidence. SC
approved of suggested charge to jury on pp. 52-53.
o R. v. Starr (2000) – SC majority held that trial judges
would err if they did not make clear to jury that
reasonable doubt standard was much closer to absolute
certainty than the balance of probabilities standard used
in civil trials
 ii. Persuasive Burdens
o Presumption of innocence infringed when accused
liable to be convicted despite existence of reasonable
doubt about a factor essential for conviction
o Oakes (above) – 11d violated by statutory provision
that required, once Crown proved possession of
narcotics beyond a reasonable doubt (BARD), that

26
accused establish, on a balance of probabilities, that did
not have intent to traffic, or else would be convicted of
possession with intent to traffic, bc this could allow a
conviction despite a reasonable doubt
 Substitution of one element for an essential
element of offence violates 11d unless “if upon
proof BARD of substituted element it would be
unreasonable for trier of fact not to be satisfied
BARD of essential element.
 In Oakes, there was not this extremely
close or inexorable link btw what was
proved (possession), and what was
presumed (intent to traffic), so violated
11d
 iii. Presumption of Innocence Applies to Elements of
Offences, Collateral Factors, and Defenses
o Presumption of innocence applies not only to essential
elements of offence, but also to defenses and collateral
factors, which makes sense bc whether something is an
element, a defense, or a collateral matter is just a matter
of legislative drafting
o R v. Whyte – Court examined provision requiring
accused driver found in driver’s seat while drunk to
prove absence of intent to put the vehicle in motion to
avoid presumption that accused was in care and control
of vehicle – Violated 11d right to be presumed
innocent because required accused to be convicted even
if able to raise reasonable doubt about the intent to put
the vehicle in motion but was unable to prove it,
HOWEVER, this and other similar legislation
UPHELD under s1
 Also violated 11d but upheld under s.1:
 CC319(3) – requires accused to prove on
balance of probabilities defense of truth
when charged with hate propaganda
 Requirements that D provide defense of
due diligence when charged with
regulatory offense
 Requirements that D establish mental
disorder defense on a balance of
probabilities
o To justify infringement of 11d (or any Charter right)
under s.1, Crown must demonstrate limit has a
compelling objective AND that there is a rational
connection between the violation and the objective.
Also, must be the least restrictive means of advancing

27
the objective, and there must be proportionality
between the objective and the rights violation
 R v. Laba (1994) – SC held not necessary for
there to be a rational connection between the
proven and presumed factors for a reverse onus
to be justified under s.1, though court noted this
would increase the danger of convicting
innocent
o An evidential burden is less restrictive than a persuasive
burden, though still violates 11d if accompanied by a
mandatory presumption
o Courts have, on their own initiative, imposed
persuasive burdens on the accused:
 Pre-Charter R. v. Sault Ste. Marie (City) (1978)
– SC imposed persuasive burden on accused to
establish a new defense of due diligence to strict
liability offenses. If accused did not establish
this defense, it would be presumed t have been
negligent in allowing the AR to have occurred.
Court has upheld such reverse onuses under the
Charter as a reasonable limit on presumption of
innocence.
o R v. Daviault (1994) – SC imposed persuasive burden
on accused to prove defense of extreme intoxication to
a general intent offense such as manslaughter or assault,
even though the traditional defense of intoxication
applies whenever there was a reasonable doubt that the
accused had the intent for a specific intent offense such
as murder or robbery
o R v. Stone (1999) – SC of own initiative held that
accused must establish the defense of non-mental
disorder automatism on a balance of probabilities, so no
longer will have benefit of reasonable doubt that acted
in an involuntary manner because a condition such as
sleepwalking or a severe physical or emotional blow.
o *Court was concerned about consistency in the law and
noted that the accused already had to establish the
mental disorder and extreme intoxication defenses on a
balance of probabilities
 iv. Evidential Burdens and Mandatory Presumptions
o SC has held that 11d is violated when persuasive
burdens require D to prove some factor on balance of
probabilities, and also when evidential burdens require
D to point o evidence to raise reasonable doubt about
mandatory presumption
o R v. Downey (1992) – SC held that provision violated

28
11d when required the trier of fact to conclude “in the
absence of evidence to the contrary” that D was guilty
of living off avails of prostitution once prosecution had
proven D was habitually in company of prostitutes, but
held justified by s.1 bc of difficulties in getting
prostitutes to testify against their pimps
 v. Threshold “Air of Reality” Tests
o Distinguish the above combo of evidential burden and
mandatory presumption from requirement that there be
an “air of reality” to justify judge instructing jury about
some particular issue or defense – generally seen as a
matter of efficient and orderly trial administration and
not as raising any presumption of innocence issues
o But “Air of Reality” tests can be important and
determine the practical meaning of a defense – for
example, defense of mistaken belief in complainant’s
consent in sexual assault cases often depends on
whether there is an AoR to justify instructing the
jury about the controversial defense
o AoR test may be influenced by whether accused bears
persuasive burden on issue – see p 58-59
o R v. Cinous (2002) – SC indicated that a consistent
AoR test should be applied throughout criminal law –
test justifies not instructing the jury about a particular
defense if there was no evidence that a properly
instructed jury acting reasonably could use to acquit on
the basis of the evidence. There must be an AoR on
every requirement of a defense to justify instructing the
jury about the defense, but the judge should not
determine the credibility of the evidence when
assessing whether it has an AoR
o Fontaine (2004) – “In determining whether the
evidential burden has been discharged on any defense,
trial judges, as a matter of judicial policy, should
therefore always ask the very same question: Is there in
the record any evidence upon which a reasonable trier
of fact, properly instructed and acting judicially, could
conclude that the defense succeeds?”
 vi. Summary of Right to be Presumed Innocent
o 11d has been interpreted broadly so that it is violated
any time a statutory provision allows D to be convicted
in the face of a reasonable doubt as to any factor
essential to conviction, including any applicable
defenses, but courts frequently uphold violations under
s.1 of Charter
 h. Other Legal Rights

29
 Charter s.14 – accused have the right to continuous,
competent, and contemporaneous interpretation at tiral if they
are deaf or do not understand or speak the language in which
the proceedings are conducted (R v. Tran)
 Charter s.11c – accused cannot be compelled to testify in their
own trials, though this does not extend to corporations and an
officer of a corporation can be compelled to testify against
corporation (R v. Anway Corp)
 11a – person charged with an offense has right to be informed
without unreasonable delay of the specific offense
 11i – protects the accused against the burden of retroactive
criminal laws, as does 11g which provides that accused has
right not to be found guilty unless the act or omission at the
time it was committed was an offense under Canadian law,
international law, or was criminal according to the general
principles of law recognized by the community of nations
(allows for prosecution of war crimes – R v. Finta)
o 4. Charter and Substantive Criminal Offenses and Defenses
 Though Cts have primarily been concerned with procedural fairness of
investigations and prosecutions under Charter, also concerned with
substance of offenses and defenses, generally challenged on ground
that they violate fundamental freedoms such as freedom of expression,
or principles of fundamental justice
 a. Fundamental Freedoms
 s.2b of Charter – interpreted broadly to include protection for
all forms of expression short of violence or threats of violence,
though courts have recognized that criminal prohibitions on
some types of expression can be justified as reasonable limits
under s.1
 Criminal offense prohibiting solicitation in public place for
purpose of prostitution violated freedom of expression, but
upheld under S.1
 CC163 restriction on making and distribution of obscene
materials violates freedom of expression, but upheld under s.1
as reasonable limit as long as interpreted not to proscribe
sexually explicit erotica that is not violent, degrading, or
dehumanizing (R v. Butler 1992)
 SC has indicated that crim law cannot be used to enforce
morality per se, but that it can act to respond to Parliament’s
reasoned apprehension of harm, even if the causal links
between the expression and the har of violence against women
and children are not conclusive
 SC approved use of crim law to enhance respect for all member
of society, and nonviolence and equality in their relations with
others, especially as this relates to enforcement of Charter
values, such as equality

30
 SC indicated that defenses of artistic merit, educational,
scientific, or medical purposes or the public good should be
interpreted liberally to protect freedom of expression
 Child porn and willful promotion of hatred against
identifiable group laws held to be reasonable limits on
freedom of expression
 SC struck down provision prohibiting willfully spreading
false news likely to injury public interest (like holocaust
deniers) (R v. Zundel 1992) – struck down as broader and less
narrowly tailored than hate propaganda provision upheld above
o Crime of defamatory libel upheld as justified restriction
(R v. Lucas)
 Summary: Offense that prohibits any form of expression short
of violence will likley violate freedom of expression, but
depending on the objective and reach of the offense, cts may
find it to be a reasonable limit on expression under s.1
 b. Principles of Fundamental Justice
 i. Everyone
o s.7 provides that “everyone has the right to life, liberty,
and security of the person and the right not to be
deprived thereof except in accordance with the
principles of fundamental justice”
o Corporations NOT entitled to rights of life, liberty,
and security of the person, so corporations cannot bring
s.7 challenge to provisions that only apply to
corporations, but CAN bring s.7 challenge to offences
on the basis that they also apply to natural persons
(humans do have s.7 rights)
 ii. Right to Life, Liberty, and Security of the Person
o S.7 does not promise state will not interfere with a
person’s life, liberty, or security of the person – just that
the state will not do so in a way that violates the
principles of fundamental justice
o Carter v. Canada (A.G.) 2015, Court held that the
assisted suicide offence deprived persons of life by
requiring those with debilitating illnesses to take their
lives before they might otherwise desire so as to ensure
that those who assisted them when they were physically
unable to do so would not face criminal liability
o Right to Liberty – affected if a person is liable to be
imprisoned, and by other restrictions on fundamental
autnomy, dignity, bodily integrity, including probation
orders that restrain person’s liberty in the community
 Only way to guarantee liberty not infringed
when person fined is to provide that
imprisonment cannot be used if fails to pay fine

31
(R v. Pontes 1995); prohibitions on smoking pot
have not been found to violate a person’s right
to liberty (R v. Clay 2003)
o Security of the Person – infringed by state-imposed
interference with personal choices and bodily integrity
 Offense that criminalized abortion except in
certain circumstances violated women’s security
of the person (R v. Morgentaler (1988))
 Laws that exposed sex workers to incrased
danger by prohibiting them from working in
brothels, hiring body guards, screening clients,
all held to violate security of person even
though harm they would be exposed to would be
inflicted by 3rd parties (Canada (A.G.) v.
Bedford (2013)
 High fines without possibility of imprisonment
do NOT infringe security of the person (R v.
William Cameron Trucking 2003)
 iii. Principles of Fundamental Justice
o Test for whether a rule or principle constitutes a
principle of fundamental justice is that:
 (1) the proposition must be a legal principle;
 (2) there must be a consensus that the rule or
principle is fundamental to the way the legal
system ought fairly to operate; and
 (3) the rule or principle must be identified
with sufficient precision to constitute a
manageable standard to measure
deprivations of life, liberty, or security of the
person
o No freestanding right to respect for the principle of
fundamental justice, rather, it must be respected when
the state infringes the right to life, liberty, or security of
the person (Re B.C. Motor Vehicle reference)
o Test for what constitutes a principle of fundamental
justice can be quite restrictive – long standing
principles such as idea that crim law should only be
used to prevent harms (Malmo-Levine, below), or that
best interest of children should be respected (Canadian
Foundation for Children, Youth, and the Law v.
Canada 2004), have been held not to be principles of
fundamental justice
o R v. Malmo-Levine (2003) – SC considered whether s.7
restricted Parliament to criminalizing conduct that
harmed others (accused was challenging pot law);
majority rejected idea that harm principle was a

32
principle of fundamental justice of the P was restricted
to criminalizing conduct that harmed others
o BUT Court has stressed that principles of
fundamental justice are not a closed category and
will continue to evolve
o Fundamental Principle of Justice that young people
are less blameworthy for offenses (violated by
presumption that young Ds convicted of certain serious
offenses should receive adult sentences (R v. D.B.
2008)
o Ct recently held that Arbitrariness, Overbreadth, and
Gross Disproportionality are all distinct principles of
fundamental justice that if violated can require a law
that infringes life, liberty, or security of person to be
struck down
 iv. Relation of s.7 and s.1
o SC has NEVER held that a violation of s.7 was
justified and reasonable under s.1
o This may explain Court’s caution in accepting even
well-established legal principles as principles of
fundamental justice, because violations of s.7 are
seldom salvageable by s.1
o Some principles of fundamental justice come close to
replicating some of the proportionality analysis
conducted under s.1, for example, principle that
excessively vague laws violate s.7 mimics requirement
under s.1 that limits on rights be “prescribed by law”,
s.7 principle against overbroad laws mimics s.1
requirement that law should limit rights as little as
reasonable possible to achieve objective; principle
against gross disproportionality relates to s.1 balancing
analysis
o Important differences though, including that applicant
bears burden of establishing that s.7 rights violates,
whereas gov bears burden of justification under s.1
 c. Vagueness, Arbitrariness, Overbreadth, and Gross
Disproportionality (p. 67)
 i. Vagueness
o Principles of fundamental justice in s.7 are offended by
offenses that are so vague that they vail to give fair
notice to citizens and provide no limit to law
enforcement discretion
o Court has stressed that an excessively vague law
“mocks the rule of law” (R v. Levkovic 2013) and that
“condemning people for conduct that they could not
have reasonable known was criminal is Kafkaesque and

33
anathema to our notions of justice” (R v. Mabior 2012)
o Courts can only conclude that a law is
unconstitutionally vague after exhausting its
interpretive function (Levkovic)
o Courts reluctant to hold crim laws unconstitutionally
vague, they make allowances for the ability of courts to
add an interpretive gloss on vague words
 Ex. SC stressed need to give accused fair notice
and avoid excessively vague laws when
interpreted offense of failure to obtain assistance
in child birth to require that child would likely
have lived (Levkovic)
o A law’s vagueness may be a consideration in
determining whether law violates another Charter right,
for example, Ct struck down vague terms “public
interest” and “just cause” for denial of bail under 11e,
discussed above
o Also, vagueness of a law that violates a Charter right
may be relevant to whether it can be justified under s.1,
because s.1 requires that a limitation on a charter right
be “prescribed by law” and provide an intelligible
standard to determine the manner in which the
legislature has limited the charter right
 ii. Arbitrariness
o A law is arbitrary if its infringement of life, liberty, or
security of the person is not rationally connected to the
objective of the law (p. 68)
o SC in Bedford – “There must be a rational connection
between the object of the measure that causes the s. 7
deprivation and the limits it imposes on life, liberty, or
security of the person… A law that imposes limits on
these interests in a way that bears no connection to its
objective arbitrarily impinges those interests” (though
ct in Bedford did not find the prostitution laws to be
arbitrary, just overbroad)
 iii. Overbreadth
o A law is overbroad when it goes beyond what is
necessary to achieve its legislative objectives
o R v. Heywood (1994) – SC struck down a law that
prevented all convicted sex offenders from loitering in
broad range of public places bc law restrict liberty more
than necessary to achieve objective of preventing
sexual abuse of children
o Note, in many cases, (and in dissent of Heywood),
restrictive interpretations can save a law from being
found to be overbroad in violation of s.7

34
o Overbreadth differs from arbitrariness because, while
an arbitrary law is irrational in the sense that it bears no
relation to its purpose, an overbroad law bears some
relation to its purpose but goes further than necessary
aka an overbroad law is arbitrary in part- its overbroad
because it includes an arbitrary part that bears no
relation to its purpose
 iv. Gross Disproportionality
o A law will be grossly disproportionate “in extreme
cases where the seriousness of the deprivation is totally
out of sync with the objective of the measure. This idea
is captured by the hypothetical of a law with the
purpose of keeping the streets clean that imposes a
sentence of life imprisonment for spitting on the
sidewalk. The connection between the draconian impact
of the law and its object must be entirely outside the
norms accepted in our free and democratic society.”
Bedford
o Bedford held that offence against keeping bawdy
houses for sex workers and of public solicitation for
prostitution were both grossly disproportionate because
the objective of controlling neighborhood nuisances
was not nearly as important as the harms to the life and
safety of sex workers – though this may be an
exceptional holding as in other cases, courts have not
held laws to be grossly disproportionate
o Parliament responded to Bedford by adding CC213(1.1)
and 286(1-5) offences, though this time not related to
“nuisances”, and instead meant to address violence and
exploitation
 d. Fault Requirements (more detail in Chs. 5 & 6)
 i. Moral Innocence and Absolute Liability
o BC Motor Vehicle Reference (1985) – SC indicated that
a “law enacting an absolute liability offence will violate
s.7 only if and to the extent that it has the potential of
depriving of life liberty, and security of the person” -
SC concluded that the offence – which had min penalty
of 7 days imprisonment for driving with suspended
license, would allow an accused to be convicted
regardless of whether they knew license was suspended
or were negligent – could allow the morally innocent to
be punished and suggested that a better alternative
would have been to allow the accused a defense of due
diligence or lack of negligence once Crown proved the
prohibited act of driving with a suspended license – A
strict liability offense as opposed to an absolute liability

35
offense would do “nothing more than let those few who
did nothing wrong remain free”
o R v Pontes (1995) – SC subsequently upheld an
absolute liability offence but only on the basis that an
accused could not be imprisoned for violating it
o *Rationale seems to be that while absolute liability
offends the principles of fundamental justice by
allowing the morally innocent to be punished, it does
not violate s.7 because sentence other than
imprisonment does not affect the accused’s right to life,
liberty, or security of the person (though ct has not yet
decided whether fine that results in imprisonment if
unpaid affects accused’s right to liberty and security of
the person)
o R v. Hess (1990) – SC held that absolute liability
criminal offences also violate s.7 – “statutory rape”
offence that made sex with a girl <14 a crime regardless
of whether D had an honest belief that she was older
constituted an absolute liability offence – this meant
that someone who was “morally innocent” could be
convicted – Majority held that this violation of D’s
rights under s.7 could not be justified under s.1, but
noted P had already replaced the unconstitutional
offence with one that allowed D a defense that he had
taken “all reasonable steps to ascertain the age of the
complainant” aka this new offence imposed fault on the
basis of negligence not simply on the basis that D
committed the criminal act
 ii. Negligence as a Sufficient Fault Element under the
Charter for Most Offenses
o Above cases show: absolute liability offences, where a
conviction follows from proof of the prohibited act, will
violate s.7 whenever the offence has the potential to
deprive D of life, liberty, or security of the person. In
these circumstances s.7 requires a fault element of at
least negligence.
o Cts have been more cautious about striking down
offences bc they do not have fault elements higher than
negligence
o Criminal offences prohibiting unlawfully causing
bodily harm, dangerous driving, careless use of a
firearm, and failing to provide the necessities of life
have all been upheld on the basis that they require proof
of a marked departure from the standard of care
that a reasonable person would take in the
circumstances

36
o Subjective fault/ Subjective knowledge not required
except for murder, attempted murder, and war
crimes
o AKA Objective fault is constitutionally sufficient for
a broad range of offenses, including serious crimes such
as manslaughter that may be punished by up to life
imprisonment
 Objective fault element of reasonable foresight
of non-trivial bodily harm was held in
Creighton not to violate s.7 because, “by the
very act of calling the killing manslaughter, the
law indicates that the killing is less
blameworthy than murder. It may arise from
negligence, or it may arise as the uninetneded
result of a lesser unlawful act. Theconduct is
blameworthy and must be punished, but its
stigma does not approach that of murder
o S.7 will not be violated so long as:
 (1) the MR and available penalties reflect the
particular nature of the crime and its stigma;
 (2) the punishment is proportionate to the
moral blameworthiness of the offender; and
 (3) those who cause harm intentionally are
punished more severely than those who cause
harm unintentionally
 iii. Negligence Standards: Marked Departure from the
Standards of a Non-Individuated Reasonable Person
o S.7 has been interpreted to require more than
simple or civil negligence, but rather, “a marked
departure from the standards of a reasonable
person” in order to convict a person of a criminal
offence based on objective fault
 This applies even if the offense seems to
contemplate a lower standard of negligence
such as carelessness, because “the law does not
lightly brand a person as a criminal”
o Negligence – as a criminal form of fault that can result
in the deprivation of liberty requires the prosecutor to
prove that the accused’s conduct was a marked
departure from the standard of care that would be used
in the circumstances by the reasonable person
o Reasonable person – Creighton ct held that, in
applying an objective standard, personal characteristics
of the accused are only relevant if they establish
incapacity to appreciate the risk involved in one’s
conduct.  S.7 is NOT offended by applying objective

37
standards w/o consideration of the accused’s own
characteristics, at least when those characteristics do
not render the accused incapable of appreciating the
relevant risk
 Beatty – Ct affirmed that a modified objective
approach that takes into account the personal
characteristics of accused is not required when
applying standards of criminal negligence – also
noted that all negligence used for criminal
liability must be a marked departure in order to
distinguish criminal from civil negligence
 iv. No Requirements of Correspondence or Symmetry
between Prohibited Act and Fault Element
o Creighton majority held that s.7 does not require that
objective fault relate to all the prohibited
consequences in the offence, so that proof of objective
foresight of bodily harm (as opposed to death) is
sufficient to convict a person of manslaughter
 AKA S.7 not offended by offenses that punish
person for causing certain harm even though
accused may not have subjectively or
objectively been at fault for causing the harm
that forms part of the AR
 v. Subjective Fault Required in Relation to the Prohibited Act
for a Few Offenses with Special Stigma
o S.7 requires proof of subjective fault only for a limited
number of offenses (only for murder, attempted murder,
and war crimes)
o R v. Vaillancourt and R v. Martineau (1990) established
that because of its stigma and mandatory life
imprisonment, murder requires proof that accused
either intended to cause death or knew that death was
likely to occur (AKA no felony-murder) – under S.7,
Crown must at least prove that an accused has
subjective knowledge that death is likely to result
before person can be convicted of murder
o SC also stated s.7 violated by provisions that allowed
an accused to be convicted as a party to attempted
murder on basis that he ought to have known death
was likely to result- Ct must establish as a
constitutional minimum that the accused subjectively
knew that death was likely to occur – Charter only
establishes minimums, so Cts have gone beyond
minimum constitutional standards by requiring
proof of an intent to commit murder as the fault
requirement for attempted murder (R v. Ancio 1984)

38
o Finta – Ct indicated that the stigma and opprobrium
that would accompany conviction of crimes against
humanity or war crimes required Crown to prove that
the accused knew, was aware of, or was willfully blind
to the aggravating facts and circumstances that would
make crimes such as robbery or manslaughter a war
crime or crime against humanity
o Mugesera v. Canada (2005)- Ct reformulated Finta
holding, recognizing that in international criminal law it
is well settled that in addition to the MR for the
underlying act, D must have knowledge of the attack
and must know his acts comprise part of it or take the
risk that his acts will comprise part of it – so Finta
reinterpreted to require the accused to have knowledge
of the attack and know that his acts are part of the
attack [constituting a crime against humanity] or at least
take the risk that they are part of the attack
o Thus subjective from of fault of recklessness = lowest
form of fault allowed for war crimes (was previously
the higher knowledge/willful blindness); knowledge
remains minimal fault requirement for murder and
attempted murder
o Following 11d jurisprudence above, Parliament can
substitute proof of another element for an essential
element if proof of the substituted element leads
inexorably to proof of the essential element, so that
the trier of fact could not have a reasonable doubt
about the essential element (so even if subjective fault
is required for these 3 crimes as an essential element
under s.7, it is theoretically possible that another fault
element could be substituted for that essential element
(p. 79))
 e. Criminal Defenses (Chs. 7-9)
 Statutory or common law restrictions on defenses may violate
Charter,
o One exception to this is if a defense would be
inconsistent with the very purpose of an offence - for
example, intoxication is not recognized as a defense for
impaired driving
o However, cts have been very active with respect to
defense of intoxication, and have held that various CL
restrictions on that defense violate s.7 – they’ve
expressed concern that not considering evidence of
extreme intoxication for general intent crimes such as
assault or sex assault could result in conviction of the
morally innocent, at least in case when so intoxicated

39
that in a state akin to automatism and acts in an
involuntary manner
o SC held that CC43 which authorized parents/teachers to
use reasonable force to correct a child does not violate
Charter s. 7, 12, or 15- held that this defense, though it
affects the security of the person of children, not so
vague or overbroad as to violate s.7- demonstrates ow
judicial interpretation of a law can save it from being
held to violate s.7 from vagueness or overbreadth
 f. Physical and Moral Involuntariness
 Principles of fundamental justice may be violated if the
accused was convicted for involuntary conduct
 Courts have recognized 2 forms of involuntariness: (1)
physical and (2) moral involuntariness
 Cts have long held it is unfair to convict a person in the
absence of a “willing mind at liberty to make a definite choice
or decision” (R v. King 1962)
 Person acts in a morally involuntary manner if he did not
have “any realistic choice” in the circumstances but to commit
the crime
 Applying principle of fundamental justice that a person should
not be punished for morally involuntary actions, SC held that
severe statutory restrictions under CC17 on the defense of
duress violate s.7 bc they would allow the conviction of a
person who had no realistic choice but to commit the crime in
response to threats – struck down CC17 requirement that
threats must be of immediate death or bodily harm from a
person who is present when the offense is committed (Ruzic)
 Person who qualifies for a mental disorder defense under s.16
of Charter also acts in a morally involuntary manner because
he has no “moral control” over his actions (Bouchard-Lebrun)
 AGAIN, Cts have not yet accepted s.1 justifications for
violations of s.7, though s.7 can be subject to temporary and
renewable override under s.33 of Charter (not yet used with
respect to criminal law)
o 5. The Charter and Punishment
 S.12 of Charter provides that everyone has right not to be
subjected to cruel and unusual treatment or punishment (see Ch.
11)
 S.12 prohibits grossly disproportionate punishments
 Judge who concludes that a mandatory sentence imposes a cruel and
unusual punishment must strike down the sentence and is not allowed
to craft a constitutional exception or exemption from the mandatory
sentence
 Landmark Case: USA v. Burns and Rafay (2001) - SC interpreted
s.7 generally to preclude the extradition of a fugitive to face trial in

40
another country unless assurances are received that the death
penalty will not be applied
 S.11h – protection against double jeopardy (being tried or
punished twice for the same offence)(this does not preclude criminal
trials after a person has been tried on disciplinary charges at work or
prison) – In Canada, double jeopardy protection only applies if the
person has been “finally acquitted of the offence” – generous appeal
rights allow Crown to appeal even after jury acquits, but this section is
violated if the accused is retried for the same offence after an acquittal-
Crown can only take a more limited appeal on a specific grounds that
the trial court made errors of law
 Double jeopardy also prohibits conviction for multiple offences
if there are no additional or distinguishing elements among the
offences
 Can also be violated in cases where parole ineligibility of
convicted offenders is increased dramatically and retroactively
o Conclusion
 Constitutional law has a pervasive and foundational influence on
criminal law and it is relevant at all stages of the criminal process
 See P.85
The Charter can also be used as in important interpretive tool. Even when it is not used to
strike down a provision, it is the practice of courts to permit constitutional values to
influence the way statutes are interpreted. 

 Read R. v. Labaye, [2005] 3 S.C.R 728 as an illustration of how the Charter
changed the criminal concept of indecency through a progression of cases
described therein. You will see that this case provoked a strong dissenting judgment.
Bear in mind that what dissenting judges say in opposition to the majority judges is
not the law, but that obiter dictum explaining the law when no opposition is taken can
be a valuable source for legal argument.
 Roach pp. 94-95 (discussing R. v. Labaye)

o SCC overturned conviction of keeping a common bawdy house with respect
to a Montreal private and locked floor of a club that was used as a place for
members and their guests to engage in group sex
o Common bawdy house defined as a place sorted to for the purpose of
prostitution or acts of indecency- question came down to what constituted acts
of indecency – SCC abandoned the community standard of tolerance test in
favor of an objectively determined harms approach – so indecency requires
conduct that by its nature “causes harm or presents a significant risk of harm
to individuals or society in a way that undermines or threatens to undermine a
value reflected in and thus formally endorsed by the Constitution or similar
fundamental laws by, for example: (1) confronting members of the public with
conduct that significantly interferes with their autonomy or liberty; or (b)
predisposing others to anti-social behavior; or (c) physically or
psychologically harming persons involved in the conduct, and that the harm or
risk of harm is of a degree that is incompatible with the proper functioning of

41
society
o Court opted for interpretation of offence that was most consistent with the
liberty of the accused
The Charter’s largest impact on criminal procedure has been in creating constitutional

 procedural protections, as discussed below.
3. The Procedural Classification of Offences
In Canada, criminal offences are divided into two general categories: “indictable offences” and
“summary” (or “summary conviction”) offences. Offences can be “hybrid” in the sense that the
prosecutor has the right to elect whether to treat the offence as “indictable” or “summary.” The
classification of offences has important implications for the penalties that are possible, and for
the procedure that will be used, including the mode of trial. For example, jury trials are not
available for criminal offences prosecuted by summary conviction and are also precluded for
indictable offences listed in s. 553 of the Code as being in the absolute jurisdiction of provincial
court judges.
 See Coughlan, pp. 35 – 43 (3rd) and the CC provisions cited therein.
TOPIC 3: CLASSIFICATION OF OFFENCES
 In Canada, criminal offences are divided into 2 categories: “indictable offences” and
“summary” (or “summary conviction”) offences. Offences can be “hybrid” in the sense
that the prosecutor has the right to elect whether to treat the offence as “indictable” or
“summary”. The classification of offences has important implications for the penalties
possible, and for the procedure that will be used, including the mode of trial.
 Two general categories: “Indictable” and “summary” offences
o Indictable: more serious offences, prosecuted in superior courts. No statute of
limitations. 

o Summary Offences: less serious, lower courts, time-barred by six months after
the completion of the offence. 

Summary Conviction Offences – the only mode of trial is in the court of criminal
jurisdiction. 

Indictable Offences – the accused has an “election” and can choose whether to have
a trial by superior court judge and jury, by superior court judge alone, or by
provincial court judge
HOWEVER, having given that election to the accused, the Code then takes it
away in a number of situations: 

 s.469 – lists a series of offences that must be tried by a judge and jury, so
the accused is given no election. o Rationale = the offences are so serious,
the public interest demands a jury trial
 s.553 – lists a number of offences that will be tried in provincial court, so
the accused is given no election. o Rationale = lists less serious offences,
and so there is no justification to offer any choice.
 s.471 – trial by jury is compulsory for all indictable offences, unless some
other Code provision creates an exception to that requirement
 Other Code provisions then create exceptions for literally every
offence. One could easily gain the impression that trial by jury is
the norm when, in fact, it is a rarity.

42
If trial will eventually take place in a Superior Court (either judge or judge and jury), matter does
not go immediately to trial but can first be referred to a preliminary inquiry in front of the
provincial Court (only if this proceeding concludes that there is sufficient evidence will a trial
actually take place.

Offenders sentenced to <2 years are in provincial jails, while offenders sentenced to >2years are
incarcerated in federal penitentiaries

Appeals:
 Summary Conviction matters – appeals heard by the superior court of the province
 Indictable matters – appeals heard by court of appeal

Court of Criminal Jurisdiction:


 S.468 – Superior court of province is competent to try any indictable offence (but in
practice the allocation of jurisdiction is more complex)
o So all indictable offenses, except those listed in s.469, are concurrent jurisdiction
between the provincial and superior court, subject only to the definition of “court
of criminal jurisdiction” in s.552
 S.469 – a court of criminal jurisdiction is also competent to try all indictable offences
except 14 listed offences (so it is the court of criminal jurisdiction that has general
competence to try indictable offenses other than those that are specifically enumerated as
being within the “exclusive jurisdiction” of the superior court
o “Exclusive jurisdiction” means that an offense can be prosecuted in that court
alone
 S.553 – provincial court has “absolute jurisdiction” to try a variety of offenses listed
there (mostly property offenses)
o “Absolute jurisdiction” – jurisdiction does not depend on election of the accused
– aka provincial court is the only court that will exercise jurisdiction with regard
to the offences listed in that section, not that the superior court has no jurisdiction
 S.552 – Court of criminal jurisdiction – definition of judge helps here, in all provinces, a
judge of the superior court has jurisdiction to try any indictable offense except those
reserved to the exclusive jurisdiction of the superior court or those reserved to the
provincial court by s.553
 S.568 – trial by judge and jury for crimes punishable by more than 5 years
 S.561ff - In addition to right of election, accused may be entitled to re-election under
certain conditions

Modes of trial:
(1) In front of the “court of criminal jurisdiction”, and 

In front of the “superior court of criminal jurisdiction” who can hear matters in two ways: 

(2) Without a jury (a ‘judge alone’ trial) or 

(3) With a jury

Offences can be “hybrid” (i.e. prosecutor has right to elect whether to treat as indictable or

43
summary) (this is not a 3rd category of offence, though)

The classification of offences has important implications for the penalties that are possible,
and for the procedure that will be used, including the mode of trial

Criticisms of the current classification of offences:


1. 1- System in Canada is irrationally complex bc it no longer has prescriptive coherence 

2. 2- The distinctions are becoming so porous that its diff. to see principle operating at a strong
level 

3. 3- The Law Reform Commission of Canada and others have argued that the current
classification of offences is a profound 
 impediment to needed reform of Canadian
Criminal Procedure in all areas but especially as regards the jurisdiction of the courts
over offences

44
o
4. Interpreting Criminal Provisions
Interpreting the Criminal Code and related enactments is not unlike interpreting other statutes.
There are special considerations that operate, however. For example:
a. Definitions - The Criminal Code has definitions for many of the terms used but they are

45
not always easy to locate. Section 2 contains definitions that apply throughout the Code.
The Code is divided into Parts, and at the beginning of each Part, there will be a definition
section that applies solely to that Part. Sometimes definitions are found in or around the
relevant statutory provision to be interpreted. See, for example, ss. 348(3) and 350, which
apply to offences in s. 348(1) (i.e., breaking and entering). Sometime definitions come
from the common law: see R. v. Jobidon, below[above](fist fight death consent issue, SC
interpreted consent to fight to be limited). 

b. Strict Construction - Historically, criminal statutes were interpreted strictly in favour of
the liberty of the accused. In other words, the accused would get the benefit of any
ambiguity in matters of interpretation. This principle continues to apply but has been
heavily modified by the purposive interpretation.
 R. v. Pare, [1987] 2 S.C.R. 618 (shows purposive, rather than strict, interpretation (courts
are to use purposive interpretation first, and then if still ambiguity, strict interpretation in
favor of the accused))
o Accused murdered young boy 2 minutes after indecently assaulting him. At trial, the
jury found the accused guilty of first degree murder pursuant to s. 214(5) (b) of
the Criminal Code . At the time of the offence, s. 214(5) (b) provided that "murder is
first degree murder in respect of a person when the death is caused by that
person while committing an offence under section . . . 156 (indecent assault on a
male)". The Court of Appeal dismissed the accused's appeal but substituted a verdict
of second degree murder for the jury's verdict of first degree murder. This appeal is
to determine whether the accused murdered the child "while committing" the
indecent assault.
o Held: The appeal should be allowed. AKA was part of same transaction counts as
“while committing” so first degree murder conviction restored.
o The words "while committing" in s. 214(5) do not require the murder and the
underlying offence to take place simultaneously. Where the act causing death and the
acts constituting the indecent assault all form part of one continuous sequence of
events forming a single transaction, the death is caused "while committing" an offence
for the purposes of s. 214(5) . The offences under s. 214(5) all involve the illegal
domination of people by other people. Accordingly, it is the continuing illegal
domination of the victim which gives continuity to the sequence of events culminating
in the murder and makes it a single transaction. The murder represents an exploitation
of the position of power created by the underlying crime and knits the two together.
The conviction of first degree murder should be restored.
 R v Pare: (above) (Sexually assaulting and then murdering little boy)

 Facts: Pare murdered a young boy two minutes after indecently assaulting him; at trial
jury found him guilty of first degree murder section 214(5)(b) (“when death is caused ...
while committing an offence under section 156); Court of Appeal substituted verdict of
second degree murder; Crown appealed
 Issues: Whether accused murdered the child “while committing” the indecent assault
 Held: Crown’s appeal of second degree verdict should be allowed
o “while” committing, as per section 214(5)(b) doesn't require the murder and
offence (under section 156) to take place simultaneously; that they form part of
one continuous sequence of events forming a single transaction qualifies as

46
“while committing”
o Potential grammatical ambiguity in s. 214(5) re killing ‘while committing’
another offence. SCC looked at purpose of provision to find there was no
ambiguity: “Where the act causing death and the acts constituting the indecent
assault all form part of one continuous sequence of events forming a single
transaction, the death is caused "while committing" an offence.”
o Roach believes the court seems less likely to strictly construe in favour of accused
where very serious crimes are involved and the wording of the statute is not really
ambiguous, e.g. R v Pare...  See CanadianOxy below
 Roach pp. 90-95
 R v Marcotte - Statutes that affect the physical liberty of a person should be applied so as
to favour the person against whom it is sought to be enforced
 This principle of strict construction continues to apply but has been heavily modified by
the purposive interpretation.
 CanadianOxy Chemicals v. Canada (1999)- Doctrine of Strict Construction is only
used if there are reasonable ambiguities in a law after it has been interpreted in a
purposive manner consistent with its intent
c. Purposive Interpretation - Canadian law makes liberal use of purposive interpretation, in
which the language that is used in the provision being construed is interpreted
harmoniously with the statute as a whole, with the underlying purpose of the provision in
mind so as to best accomplish its underlying purpose, always bearing in mind that the limit
on purposive interpretation is that damage cannot be done to the language employed. R. v.
Pare is an example. Be on the lookout throughout the decisions included in this list for
examples of purposive interpretations. 

o Purposive Interpretation - Canadian law makes liberal use of purposive
interpretation (see R v Pare above)

i. The language of the provision being construed is interpreted harmoniously
with the statute as a whole, with the underlying purpose of the provision in
mind so as to best accomplish that purpose
ii. Limit: can’t damage the actual language of the provision
o R v. Russell (2001) – takes R v. Pare a step further
i. SC went beyond Pare to hold that first degree murder can be committed
even if the underlying offence was omitted against a third party and not the
person murdered
ii. Court stressed that strict construction was not relevant because the
ordinary words of s.231(5) of CC did not require the underlying offence to
be committed against the victim
iii. This case underlines that courts will not lightly resort to the doctrine of
strict construction and will often give even the most serious criminal
offences a generous reading if supported by the language of the enactment

d. French/English - Federal laws like the Criminal Code are passed in both of Canada’s official
languages. Each version is equally authoritative, and ambiguities in one language can be
clarified by the other.
 See, for example, R. v. Mac, [2002] 1 S.C.R. 856, or for a very simple example, R. v.

47
Collins, [1987] 1 S.C.R. 265 at para. 43.
a. The more restricted version is always the one used, e.g. adapted vs. modified
(below)
i. R v Mac: ambiguity in the English version of statute containing ‘materials
adapted for forgery’ cleared up by resorting to French version (‘modifié’)
ii. R v Collins: French version of Charter s. 24(2) preferred: "the evidence
shall be excluded if it is established that, having 
 regard to all the
circumstances, the admission of it in the proceedings could [rather than the
English ‘would’] bring the administration of justice into disrepute"

 Roach pp. 92-93 (discussing R. v. Mac)
a. R v Daoust: If English and French versions of CC are not consistent, Court should
select the more restrictive provision

e. The Charter - As indicated, the Charter can have an important influence on the way statutory
provisions are interpreted because of the presumption that statutes were intended to be
constitutionally valid. You have observed this in R. v. Labaye, [2005] 3 S.C.R 728
(Montreal sex club/bawdy house not indecent). 

 See, for example, Canadian Foundation for Children, Youth & the Law v. Canada (A.G.),
[2004] 1 S.C.R. 76 where a Charter challenge encouraged the Court to read significant
content into the concept of “reasonable corrective force.” Examine this decision not only
for what it shows about legal technique, and the rule of law doctrine of “void for
vagueness,” but also for what it says about the operation of the defence of corrective
force.
o Canadian Foundation for Children, Youth & the Law v. Canada – McLachlin
C.J. – right to discipline
 PRINCIPLE: VAGUENESS and Corrective Force Defense
 FACTS: Appeal by the Canadian Foundation for Children, Youth, and the
Law from the dismissal of its appeal from the dismissal of its application
for a declaration that s.43 of CC violated Charter. S.43 permitted teachers
and parents to use force by way of correction to a child where such force
did not exceed what was reasonable under the circumstances.
 HELD: Appeal dismissed.
 While, as conceded by the Crown, s.43 violated children’s rights to
security of the person, it did not offend a principle of fundamental
justice in violation of s.7 of the charter. The section accorded
procedural safeguards. The best interests of the child principle was
not a principle of fundamental justice.
 Finally, the section was not impermissibly vague or overbroad.
o The phrases “by way of correction” and “reasonable under
the circumstances” provided sufficient precision to
delineate the zone of risk of criminal sanction having
regard to international treaty obligations, the social
consensus, expert evidence, and judicial interpretation
o Pursuant to these resources, the force used had to be for the
purposes of education nor correction, and could not be

48
more than trifling
 Corporal punishment against children under 2 or teens, degrading,
inhuman, or harmful conduct and the use of objects or blows to the
head not protected by s.43
 Teachers not permitted to use corporate punishment, but could use
force to remove a child from a class or secure compliance with
instructions
 As s.43 only permitted reasonable corrective force, it did not
breach s.12 of Charter by permitting cruel and unusual punishment
against children. Finally, s.43 did not violate children’s s.15(1)
equality rights. Children need a safe environment, but they also
depend on teachers/parents for guidance and discipline, to protect
them from harm and promote their healthy development.
o The Standard for “Vagueness”
 A law is unconstitutionally vague if it “does not provide an adequate basis
for legal debate” and “analysis”: “does not sufficiently delineate any area
of risk”; or “is not intelligible”. The law must offer a “grasp to the
judiciary”. Certainty is not required. Vagueness dealt on a case-by-case
basis
 A vague law prevents the citizen from realizing when he or she is
entering an area of risk for criminal sanction. 

 It similarly makes it difficult for law enforcement officers and
judges to determine whether a crime has been 
 committed. 

o Does Section 43 Delineate a Risk Zone for Criminal Sanction? 

 s.43 sets real boundaries and delineates a risk zone for criminal sanction. It
does not violate the principle of fundamental justice that laws must not be
vague or arbitrary. It is not overbroad. 

 s.43 delineates who may access its sphere with considerable
precision. The terms “schoolteacher” and “parent” are clear. 

 The person applying the force must have intended it to be for
educative or corrective purposes. Out of anger will not be
tolerated. 

 If conduct raises an apprehension of bodily harm s.43 cannot be
relied on. 


THE ELEMENTS OF A CRIMINAL OR REGULATORY OFFENCE


Each criminal offence has “elements” that must be present before a conviction is possible.
Indeed, all elements of the offence must be present at the same time, or there will be no crime
(see R. v. Williams below). As is the case internationally, it is convenient to think of the
elements of an offence as:
4. The physical elements or actus reus of the offence (the act that must be
performed or omission that is proscribed, the circumstances or conditions in which the act

49
must occur, and any consequence that must be caused by the act); and 

5. The mental or mens rea elements of the offence. 

The actus reus requirement is not simply the need to show that the accused acted voluntarily: the
elements particular to each individual offence must be identified. For example, the actus reus of
assault includes the application of force and the absence of consent, the actus reus of theft
includes the taking of property belonging to someone else, the actus reus of robbery includes
committing assault in order to steal, and so on. 

As a general rule (but subject to exceptions) each actus reus element will have a corresponding
mens rea element. For example, in assault the application of force must have been intentional,
and the accused must have known of the absence of consent. In Canadian law, these mental
elements normally describe the actual or “subjective” state of mind of the accused (things such
as intent, knowledge, willful blindness or recklessness). It is becoming increasingly common,
however, to produce offences that have an objective mens rea, such as negligence. Objective
mens rea is determined not according to the state of mind of the accused (the subject), but
according to what a reasonable person in the position of the accused would have known or
foreseen.
As a general proposition of interpretation, a true crime will be interpreted as requiring subjective
mens rea unless it is clear that Parliament wished to impose objective liability. Identifying what
the elements of an offence are is a challenging enterprise, turning on interpretation of the offence
and familiarity with relevant precedents and principles. It is not possible or desirable to attempt
here to “teach” the elements of every offence. Instead, some offences will be selected for their
illustrative value in demonstrating the key actus reus and mens rea concepts.
Applicants are expected to be able to demonstrate interpretive and application skills for all
criminal offences, whether included in these reading materials or not. That is, candidates are
expected to develop the ability to review an offence provision and analyze it in such a way as to
be able to discern its essential elements (actus reus, mens rea, etc.). Sometimes this exercise will
involve being cognizant of definitions or presumptions that are included in the offence provision
or elsewhere in the Criminal Code. A candidate is not expected to have conducted such an
analysis with respect to every offence in the Criminal Code prior to the exam. Nevertheless, the
candidate must be able to quickly carry out an analysis of an offence that is put at issue in an
exam question, even if he/she has not previously dealt with that offence in the readings.
5. The Actus Reus
a) Acts and Statutory Conditions - The act must be the act of the accused. The act must
also be the kind of act described in the relevant provision. Further, the act must be
committed under the circumstances or conditions specified in the offence. For
example, an accused cannot be convicted of the offence of break and enter with intent to
commit a criminal offence pursuant to s. 348 (1) (a) unless she “breaks” and “enters”
something that qualifies as a “place” according to the CC, with the relevant mens rea.
See, for an example of the interpretation of acts and actus reus conditions:
 R. v. J.(D.), [2002] O.J. No. 4916 (Ont. C.A.) 

o R v. J.D. – [2002]– being let into his friend’s house, counting as forcible
entry
 Facts: JD fled to VB’s house after being approached by cops; he was
let into the house and tried to go out the back door but was unable to;

50
cops were let in and they arrested JD; trial judge found that forcible
entry didn’t require actual use of force as long as there was a breach of
peace

 Issues: was there a forcible entry
 Held: conviction set aside, acquittal entered
 Forcible entry occurred only where the entry interfered with the
peaceable possession of a property; a known person walking in the
front door and straight through to the back does not have such an
intention
 R. v. Gunning [2005] 1 S.C.R. 627
o R v Gunning: To make out a murder conviction, Crown needs to prove
beyond reasonable doubt:
 (1) identity of D as the offender;

 (2) time and place of the offence as set out in the Indictment;

 (3) that D caused the death of V;
 (4) that D caused the death by means of an unlawful act [for murder,
unlawful act is shooting itself, for manslaughter, here it would be
careless use of a firearm];

 (5) that D intended to cause the death
 All of these are matters of fact to be decided by the jury (judge
erred in telling the jury that D’s act was unlawful – that his use
of the gun was careless)
 Trial judge also erred in failing to instruct jury on the defence
of house or property under s.41 of CC- merits of defence are
for a jury to decide
Acts Must be “Voluntary” or “Willed” – The act described by the offence must be
“voluntary” in the sense that it must be the willed act of the accused. For example, a
man in the throes of a seizure does not “will” his movements; it would be no assault on
his part even if his arm was to strike another without the other’s consent. It would have
been possible to deal with this kind of issue using the mens rea concept by suggesting
that he did not intend to strike the other, but Canadian law has also accepted that unless a
physical motion is willful, it is not fair to call it an act of the accused person. This is the
foundation for the automatism defence, discussed below. It is easier to understand the
concept of voluntariness together with automatism authorities, so this discussion will be
deferred until the voluntariness-based defences are discussed below.
 Roach pp. 123-125
o Voluntariness is now a requirement built into AR
 THEREFORE, AR has its own mental element, that the act
must be voluntary
 R v Theroux (1993): housing developer that said deposits were insured when they
were not. McLachlin states that the MR of an offence does not encompass all the
mental elements of the crime b/c the “AR has its own mental element” – that the
“act must be the voluntary act of the accused for the AR to exist”
 R v Daviault (1994): extreme intoxication producing involuntary/unconscious

51
behaviour negates AR
 R v Stone (1999): an involuntary act will lead to acquittal (as no AR made out)

 R v Ruzic (2001): voluntariness is one of the principles of fundamental justice
(section 7 Charter) (people should only be punished if they acted as “autonomous
and freely choosing agents”

b) The “Act” of Possession – At times part of the actus reus for an offence has an inherent
mental element to it, as it does with the important element, common to many offences, of
“possession.” This concept demonstrates that the divide between the actus reus and mens
rea is not always a solid one. What matters is that lawyers appreciate what the elements
are, regardless of how they are characterized.
- See CC s. 4(3), Controlled Drugs and Substances Act section 2 (found in most
Criminal Codes) 

- Some actus reus incorporate the inherent mental element of “possession”,
e.g. possession of firearm, property obtained in a crime (s. 354(1)), etc.
- “Possession” is defined in s. 4(3) and includes both actual(/personal) and
attributed(/constructive) possession (notes, CC p. 20):
- A person has something in his “possession” where he:
 (a) Has it in PERSONAL POSSESSION (manual possession);
 (b) KNOWINGLY has it in the actual possession or custody of
ANOTHER PERSON (constructive possession);
 (c) KNOWINGLY has it in any place, whether or not that place
belongs to or is occupied by him, for the use or benefit of himself or
another person (also constructive possession)

 (d)Where ONE OF TWO PERSONS has anything in their custody or
possession, with the KNOWLEDGE AND CONSENT of the rest, it
shall be deemed to be in the custody of ALL OF THEM (i.e. joint
possession)
- S.2 of the CDSA adopts this definition of possession
- This section creates 3 types of possession: personal possession (actual);
constructive possession (attributed); and joint possession (actual to one possessor,
and attributed to the other)
- See R. v. York, (2005), 193 C.C.C. (3d) 331 (B.C. C.A.) for the law of manual
possession 

- R v York: [2005] driving away van with property stolen by partner
[manual/actual possession]
 Significance: Personal (actual) possession is established where an
accused person exercises physical control over a prohibited object
with full knowledge of its character, however brief the physical
contact may be, and where there is some evidence to show the
accused took custody of the object willingly with the intent to deal
with it in some prohibited manner
 Facts: D found goods in his warehouse and upon inquiry suspected
they were stolen. To get rid of the goods D borrowed a truck and

52
removed the goods, then was arrested.
 Issue: Did D possess necessary mens rea to establish possession of
stolen property?
 Held:

- Intention to deprive owner of goods required to establish
‘possession’; brief handling for the purpose of disposing of stolen
goods, even with full knowledge of theft, ≠intention to deprive
- “Personal possession is established where an accused
person exercised physical control over a prohibited object
with full knowledge of its character, however brief the
physical contact maybe, and where there is some evidence
to show the accused person took custody of the object
willingly with intent to deal with it in some prohibited
manner.” – Not the case here.
- “Intent is an essential ingredient of both the offences of
theft and possession of stolen property”
- Crown must establish a blameworthy state of mind
- Note how the “act” of possession has a mental element; so
sometimes the actus reus and mens rea are not distinct

- See R. v. Marshall, [1969] 3 C.C.C. 149 (Alta. C.A.) and R. v. Terrence, [1983] 1
S.C.R. 357 for the concept of constructive joint possession 

- R v Marshall: [Joint Possession & Constructive Possession]
Facts: Marijuana in the car in which M was a passenger. He knew the
narcotics were in the car but did not use them (did pass the pipe for others
to use).
Issue: Was Marshall in joint possession? What is necessary to meet
requirements of possession in s. 4(3)?

Held: To prove s. 4(3) possession, there must be evidence of consent; M
had not consented (appeal allowed)
- To be in possession requires:
1. Knowledge of the criminality associated with the item
(not just of the item);
2. Consent (per R v Marshall (1969)); and

3. Control (per R v Terrence (1983))
- R v Terrence: [Joint Possession & Constructive Possession]
Significance: Joint possession requires evidence that the party in
attributed possession had knowledge, consent and control over the subject
matter

Facts: D, passenger in a stolen car, charged with possession under s. 3(4),
313; he didn’t know the car was stolen

Issue: Whether “possession” used in s.3(4)(b) of CC imports control as an
essential element

53
Held: Control an essential element of possession; must coexist with
knowledge & consent

- See R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 for possession of electronic
data 

- R v Morelli: [Possession of electronic data, child pornography]
 Just having an illegal file cached on D’s computer (child porn) didn’t
establish possession: it would have to be downloaded and
 saved to
the hard drive in order for there to be ‘control’ 

 Merely viewing in a Web browser an illegal image stored in a
remote location on the Internet does not establish the level of control
necessary to find possession 

 In order to commit the offence of possession, as opposed to the
offence of accessing child pornography, one must knowingly
acquire the underlying data files and store them in a place under
one’s control 

 Dissent: “D does not need to have control in a place belonging to
him, such as his hard drive. The provision simply requires the
material to be ‘in any place’ for the use or benefit of D.”
 Material need not be downloaded, so long as it can be controlled for
access/use 

- Roach pp. 111-112
- S.4(3) defines possession broadly to include not only personal possession,
but also knowingly having something in the actual possession or custody
of another person or in another place
- Joint possession is deemed where “one of two or more persons, with the
knowledge and consent of the rest, has anything in his custody or
possession”
- Courts have interpreted a person’s knowledge and consent to require that
the person deemed to be in possession must have a measure of control
over the matter (Terrence) 

- S.332- defines theft as the taking or conversion of anything, but, despite
this apparently broad definition, SC has excluded the taking of
confidential information from offence of theft on the basis that
information alone does not constitute property as protected under the
criminal law, and its theft does not deprive the possessor of the use or
possession of the confidential info – so currently SC’s interpretation of
AR of theft does not include taking confidential information alone, but
may include taking a piece of paper with confidential information on it –
Parliament may want to update this for the computer age to make taking
confidential info theft, or create a new offence

c) Consent as an Element of the Actus Reus - Often the question of absence of consent by

54
the victim is an important actus reus condition that must be present for offences to occur.
Consent is a complex idea, animated by statute and the common law.
- See CC section 265(3) 

- s.271(1) Sexual assault – Everyone who commits a sexual assault is guilty of:
a) an indictable offence and is liable to imprisonment for a term not exceeding ten
years; or

b) an offence punishable on summary conviction and liable to imprisonment for a
term not exceeding eighteen months.
- Commentary: Sexual assault is not defined, although an essential element, assault, is
elsewhere defined for such purposes. In general, it is an assault under s.265(1)
committed in circumstances of a sexual nature such as to violate the sexual integrity
of V. The MR requires proof of a general intent only.
- s.265 CC:
o (3) Consent – For the purposes of this section, no consent is obtained where
the complainant submits or does not resist by reason of:
(a) the application of force to the complainant or to a person other than the
complainant;

(b) threats or fear of the application of force to the complainant or to a
person other than the complainant;
(c) fraud; or

(d) the exercise of authority.
NOTE on s.265: Assault has been given a very encompassing definition in s.265.
The definition says nothing about the degree of harm which must be sustained.
Nor does it refer to the motives for the touching. If taken at face value, this
formulation would mean that the most trivial intended touching would constitute
assault.
- If alleged victim allegedly consented, must also consider whether the consent is obtained
lawfully: s. 265(3)

- The existence of consent for the purposes of defining the actus reus of sexual assault
depends on the subjective perception of the victim as opposed to any external and/or
objective standards of law

- Court has rejected the defence of implied consent, rejects idea that although the
complainant did not actually consent, her conduct failed to meet the objective standard of
consent: R v Ewanchuk, thus determining consent is subjective, reference to the
complainant’s subjective internal state of mind towards touching. 


- Statement by the victim that she did not consent or did so because of fear will be
determinative unless not credible. 


- Court took different view in Cuerrier, actions of accused assessed objectively to


determine whether reasonable person would find them do be dishonest. Persons only had

55
duty to disclose if the failure to disclose presented a significant risk of bodily harm. 


- In Jobidon, Court held person could not consent to an assault that intentionally causes
‘serious hurt or non-trivial bodily harm... in course of fist fight or brawl’. 


- R. v. Jobidon, [1991] 2 S.C.R. 714 (reviewed above as an illustration of the


common law influence on the reach of statutory provisions) 

- R v Jobidon: Cannot consent to intentional application of force to cause hurt or
non-trivial bodily harm
- Accused charged with manslaughter, through the offence of assault,
following a fist fight. Although V agreed to fight, his consent did not
extend to being punched after he was unconscious. 

- Issue: Must absence of consent be proved by P in all cases of assault?
- The common law still ‘illuminates’ offences listed in CC and defines their
content 

- The fact that s. 265(3) sets out factors that vitiate consent does not mean
that we cannot rely on the common law to
 ascertain other ones 

- Where two people engage in a fight by mutual consent, the blows struck
by each constitute assaults, unless there is justifiable self defence (i.e. you
cannot consent to the infliction of bodily injury, or non-trivial bodily
harm) 

- This policy of the common law will not affect the freely given consent to
participate in rough sports, so long as the intentional force is within the
normal rules of the game

- R v Ewanchuk: Only relevant period for ascertaining consent is while the touching is
occurring. Also, subjective perception.
o Sexual assault involves three actus reus circumstances:
(1) Touching, (2) Of a sexual nature,
(3) Absent freely given consent (subjective: V’s state of mind, assessed for
credibility)
ii. - If in doubt re veracity of consent, check s. 265(3): no threat,
fraud etc. 

- No such thing as implied consent
o Two mens rea elements:
(1) Intention to touch;
(2) Knowledge, recklessness, or willful blindness re lack of consent

- c.f. Honest belief defence, s. 265(4): SCC held it insufficient for D to have
believed V was subjectively consenting in her mind: “In order to cloak D’s
actions in moral innocence, evidence must show he believed V communicated
consent to engage in the sexual activity in question” (applied in J.A., below)

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- R. v. J.A., 2011 SCC 28 

- R v J.A. (upholding Ewanchuk): consent while unconscious
- Facts: Long term partners engaging in consensual asphyxiation play;
female blacked out and when she came to, a dildo was being inserted into
her anus; she claimed she had not consented to the sexual activity while
she was unconscious; trial judge convicted the accused of sexual assault;
court of appeal set aside the conviction; crown appeals to dismissal.
- Issues: Can sexual acts be performed on an unconscious person if that
person consented beforehand
- Held: Conviction of the accused was restored
- ‘Conscious consent of an operating mind’ is necessary to engage in every
act of a sexual encounter; starting something new while V was
(voluntarily) unconscious = no consent

- No such thing as broad advance consent; the protection afforded by s.
273.1(2)(e) would be lost (under which V can revoke consent), also
remember Ewanchuk: relevant time for establishing consent is while the
touching is occurring, i.e. while the unconsciousness continues

- Differences between consent elements in actus reus and mens rea (from
Ewanchuk):
 Mens rea defence: whether the accused believed C had
communicated consent (see note in Ewanchuk above); requires
taking reasonable steps to ascertain consent 

 Actus reus: whether V was subjectively consenting in her mind
- Dissent: advance consent while unconscious wasn’t at issue in Ewanchuk
(in which V didn’t consent at any point) and that case shouldn’t be taken
out of context; court should avoid vitiating consent except in limited
circumstances (Jobidon) 

- Since Jobidon, consent has only been judicially vitiated in cases of
ABH(assault causing actual bodily harm) and should not be vitiated here

- R v Cuerrier [1998]: How fraud vitiates consent per s. 265(3) [HIV+]
(significant risk test?)
- Facts: D charged with two counts of aggravated assault per s. 268 for
failing to inform sexual partners of his HIV+ and using condoms; neither
partner contracted HIV by time of trial
- Issue: Was Vs’ consent to unprotected sex vitiated by fraud by virtue of
D’s knowledge? Both failing to disclose and deliberately deceiving
- Held: Must find causal connection between fraud and submission/failure
to resist (i.e. consent); fraud need not pertain to ‘nature and quality of act’
 i.e. Both partners knew they’d be having sex with D so there was no
fraud there; the fraud was in D’s knowledge that neither V would
consent if they knew he was HIV+ 


57
- Fraud involves (i) dishonesty, determined objectively: was dishonesty
used to obtain consent?; (ii) deprivation, here serious risk of bodily harm

iii. - Greater risk of deprivation  higher duty of disclosure
- Without disclosure, there can be no TRUE CONSENT. 

- Court used the language of “significant risk” to determine if there is
a duty to disclose. 

- The Court was left to decide at what point risk becomes “significant”
enough and harm becomes “serious” enough for 
 conduct to be
considered a criminal offence 


- R. v. Mabior, 2012 SCC 47


- R. v. Mabior [2012] (failing to disclose HIV positive status, Test  “realistic
possibility of transmission”)
- Facts: Mr. Mabior was charged with nine counts of aggravated sexual assault
because he had sex with different women and did not disclose to them that he was
HIV positive.
 None of the complainants contracted HIV.
- Held: Convicted of three of the four counts that he was acquitted of at the Court of
Appeal
- Court revisited the test set out in the Cuerrier decision, saying that, “A person may
be found guilty of aggravated sexual
 assault under s. 273 of the Criminal Code if
he fails to disclose HIV-positive status before intercourse and there is a realistic
possibility that HIV will be transmitted." 

- The Cuerrier decision provided the basic requirements for the offence, including
that the circumstances must create a 
 “significant risk of transmission” but did not
clarify “the precise circumstances when failure to disclose HIV status vitiates
consent and converts sexual activity into a criminal act.” 

- The Court convicted on three counts because, although he had a low viral load
when he had intercourse with three sexual
 partners, he did not use a condom. 

- The Court concluded that low viral load with no condom use meets the test for “a
realistic possibility of transmission of HIV”. In the 4th conviction, Mr. Mabior was
not convicted because he did use a condom and his viral load was low. 

- Roach pp. 107-112 

- R v. Hutchinson [2014] [fraud extended to poking holes in condoms]
 Held: Ct majority extended the fraud exception to convict a man of
aggravated sexual assault who deceptively poked holes in a condom
with the knowledge that the complainant would not have unprotected
sex
 Ct held that pregnancy satisfied the requirement of a significant risk

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of harm
 3 other judges would have convicted on the different basis that
complainant had agreed to have sex only with a condom
- History:
- Rape used to be defined in CC as sexual intercourse with a female person
who is not the accused’s wife
- 1983 – offence of rape replaced with offences of sex assault, sex assault
with a weapon or threats, and aggravated sex assault
- Parliament, in attempt to emphasize the violence in sex offences,
broadened the prohibited act to include all intentional applications of force
without consent in circumstances that were objectively sexual (R v. Chase
1987)
- Also repealed marital rape exception
- 1992 – Parliament further defined consent for the purpose of sexual
assault as “the voluntary agreement of the complainant to engage in
the sexual activity in question” and provided that no consent is obtained
where: (a) agreement is given by third party; (b) complainant is incapable
of consenting; (c) complainant is induced to participate by abuse of a
position of trust, power, and authority; or (d,e) the complainant expresses
a lack of agreement, by either words or comments, to engage or continue
to engage in sexual activity
- SC has rejected defence of either advance (R v. JA above) or implied (R v.
Ewanchuk, above) consent
- The Components of Sexual Assault 

- A conviction for sexual assault requires proof beyond reasonable doubt of 2 basic
elements (MR/AR):
- Actus reus – unwanted sexual touching. The AR of sexual assault est by
the proof of three elements:
 (i) Touching (objective test)- sufficient for Crown to prove the
accused actions were voluntary

 (ii) The sexual nature of the contact (objective test) 

 (iii) The absence of consent (subjective test; reference to the
complainant’s internal state of mind towards the touching, at the
time it occurred) 

- “Implied Consent” – “... the trier of fact (“ToF”) may only
come to one of two conclusions: the complainant either
consented or not. There is no third option. If the ToF accepts
the complainant’s testimony that she did not consent, no
matter how strongly her conduct may contradict that claim,
the absence of consent is established and the third component
of the AR of sexual assault is proven. The doctrine of implied
consent has been recognized in our CL jurisprudence in a
variety of contexts but sexual assault is not one of them.
There is no defence of implied consent to sexual assault in

59
Canadian law”. 

- The court’s concern is whether she freely made up her mind
about the conduct in question. The relevant section of the
Code is s.265(3)(b), which states that there is no consent as a
matter of law where the complainant believed that she was
choosing between permitting herself to be touched sexually
or risking being subject to the application of force. ... The
complainant’s fear need not be reasonable, nor must it be
communicated to the accused in order for consent to be
vitiated ... the approach is Subjective. 

- Mens rea – the intention to touch, knowing of, or being reckless of or
willfully blind to, a lack of consent

d) Causation - Where the relevant offence prescribes a “consequence” that must occur before
the offence is complete, the Crown prosecutor must prove that the accused caused the
consequence to occur, beyond a reasonable doubt. (Equally, where no consequence is
specified and the offence does not otherwise refer to causing a result, causation is not an
element and need not be proven by the Crown). As Williams shows, if causation is not
proved, the accused cannot be convicted of an offence that requires his act to produce a
prohibited consequence. Nette discusses the need for both “factual causation” and legal
causation, as well as discussing the higher causation standard for first degree murder.
Smithers illustrates the legal causation principle of the “thin skull” and Maybin
demonstrates the need in some contexts to consider whether intervening events have
broken the relevant chain of causation. These cases illustrate how most imputable causation
principles explain why blame can be assigned in criminal cases, in spite of arguments that
might, in civil cases, reduce or even eliminate civil liability.
- See CC ss. 224-226 

- R. v. Smithers, [1978] 1 S.C.R. 506 (Illustrates the legal causation principle of
the “thin skull” (died of asphyxiation on vomit after being kicked in stomach)
- Facts: D kicked V in stomach (both young hockey players), V choked to
death on vomit, medical disorder
- Held: One who assaults must take V as found; the fact that the act
wouldn’t normally cause death is no defense as long as Crown can prove
that D’s act is at least a contributing cause of death that is more than de
minimis
- Charter Scrutiny? R v Cribbin: The common law Smithers test, i.e. an
unlawful act that is at least a contributing cause of death, survives Charter
scrutiny (namely under s. 7, forbidding punishment of the morally
innocent)

- R. v. Nette, [2001] 3 S.C.R. 488 (Discusses need for both “factual causation”
and legal causation, as well as discussing the higher causation standard for
first degree murder)
- R v Nette: (the Smithers test is to be used to determine causation); to be framed
positively: ‘was D’s act a significant contributing cause of V’s death?’ (NOTE:

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Some argue this is a change from the Smithers test of “not insignificant” or “not
trivial” cause- by switching the test to formulate it in the positive to ask whether
D’s act was a “significant contributing cause”, Nette court says this is just a
rephrasing, NOT a different test from Smithers, but some judges disagree)
- This is to be the standard of causation for all homicide cases 

- D robbed V, a 95-year-old woman, then left her tied up; V died of
asphyxiation 2 days later 

- Responsibility for causing a consequence must be determined both in fact
and in law: 

- Factual causation: but for D’s acts, would V have died? 

- Legal causation: concerns with the accused’s responsibility in law and is
informed by legal considerations such as the 
 wording of the offence and
the principles of interpretations thereof. 

- Should D be held criminally responsible for V’s death? Morally innocent
people should not be punished. Look to CC section for clues.
- The fact that the accused actions may not have caused death in a different
person does not negate causation 

- The fact that other factors might have contributed to the result may or may
not be legally significant depending on whether these
 other
(independent) factors, occurring before or after the act or omission of the
accused, legally severs the link that ties the accused to the result in
question 


- R. v. Williams, [2003] 2 S.C.R. 134 (If causation not proven beyond a


reasonable doubt, D can’t be convicted of a “consequence” of a crime that
requires his act to produce a prohibited consequence)(Where P can’t prove D
caused the prohibited consequence, D can’t be convicted)
- PRINCIPLE: Where the relevant offence prescribes a “consequence” that
must occur before the offence is complete (i.e. aggravated assault), the
Crown prosecutor must prove that the accused caused the consequence to
occur, beyond a reasonable doubt.
- FACTS: Williams learned that he was HIV-positive six months after
commencing a relationship with the complainant. He did not tell the
complainant and continued to have unprotected sexual relations with her
for a further 12 months even though he received medical counselling and
was informed of his duty to disclose his HIV status to sexual partners. The
complainant contracted HIV. At trial, Williams was convicted of
aggravated assault and common nuisance. The Newfoundland COA
confirmed the common nuisance conviction but allowed Williams's appeal
from conviction of aggravated assault, convicting him instead of attempted
aggravated assault.
- ISSUE: whether an accused who fails to disclose that he is HIV+ can be

61
convicted of an aggravated assault endangering life by engaging in
unprotected sex with a complainant who, at the time of the alleged assault,
could herself have been infected with HIV.
- REASONING:
 Aggravated assault is an offence based on proof of certain
consequences 

 The Crown must establish all of the elements of an assault, plus the
aggravating circumstance (in this case, “endangers the life of the
complainant”)
 Section 268(1) is only one of a number of Criminal Code provisions
that “call for a more serious charge if certain consequences follow.
 The Crown was unable to prove the endangerment of life, and
therefore unable to prove every element of the actus reus
- HELD: Appeal dismissed. Williams's continued sexual activity with the
complainant while knowing of his HIV status was evidence beyond a
reasonable doubt of the necessary MR of the offence of aggravated
assault. However, the Crown failed to prove that Williams's conduct after
finding out about his HIV status risked endangering the complainant's life
because it was likely she had already contracted HIV in the six months
before he knew about his status. The lack of proof of this essential element
of the AR was fatal to the aggravated assault conviction but was not fatal
to the attempt charge. Thus, he was guilty of attempted aggravated assault.
 The focus in the external circumstances is on the nature of the
consequences (i.e. HIV), not the nature of the assault (i.e. sex). W
acquitted on charge of aggravated assault.

- R. v. Maybin, 2012 SCC 24 (Demonstrates need in some contexts to consider


whether intervening events have broken the chain of causation)
- Facts: Accused brothers, T and M, in a busy bar, repeatedly punched V in
face and head. T knocked V unconscious. Bar bouncer arrived w/in
seconds and struck victim in head. Unclear which blow caused death. Trial
judge acquitted all 3. CoA unanimous that accused’s assaults were
factually contributing cause of death, and that risk of harm caused by
intervening actor could have been reasonably foreseeable to accused.
Dissenting judge said couldn’t reasonably foresee conduct of intervening
actor, and concluded that bouncer’s intentional act severed legal causation.
Appeal was allowed and new trial was ordered
- Issue: Whether bouncer’s intentional act (another punch to the head)
severed the legal causation of the accused brothers beating causing
victim’s death.
- Held: Appeal should be dismissed, trial judge could have found that
bouncer’s act was foreseeable/ not an intervening act, so brothers still
caused death, factually and legally.
 Courts have used a number of approaches to determine when an
intervening act absolves accused of legal responsibility for
manslaughter:

62
- For example, both the “reasonable foreseeability” and the
“intentional, independent act” approach may be useful – but
these are just analytical tools – even in cases where it is
alleged that an intervening act has interrupted the chain of
legal causation, the causation test remains whether the
dangerous and unlawful act of the accused are a
significant contributing cause of the victim’s death
- It was reasonably foreseeable that the bouncer or someone else would forcefully
intervene, so causation remains with D
 If the accused set off a chain of events that
ended in the person’s death, even though the immediate cause of death was not at
the accused’s hands, the courts have concluded that the accused caused such a death
- The accused actions don't have to be the sole cause of death, but a
significant contributing cause thereof 

- The actions of the accused have to be so connected to the death that they
can be said to have had a significant causal effect that 
 continued up to
the time of the accused’s death without having been interrupted by an
intervening effect 

- But there may be times when intervening factors make it so that the
accused’s actions are no longer the significant cause of death 

-
- Roach pp. 114-121 

Where an offence requires a specific consequence, causation becomes an element of the
offence – the offences which prescribe a consequence include:

Overview:
Although the criminal code doesn’t comprehensively codify all causation issues, sometimes
parliament prescribes the level of causation for a crime
- Section 222(1) provides that a person commits homicide when, directly or indirectly, by
any means, he or she causes the death of a human being

Where factual situations occur, which are not covered in statute, common law general principles
of criminal law apply to re- solve any causation issues that arise (Maybin). For example, in R v
Smithers, upheld manslaughter on basis that kicking the stomach was at lease a contributing
cause of death, outside the de minimus range, even though death was caused by the victims own
malfunctioning epiglottis (causing him to choke on own vomit). Here the thin skulled plaintiff
rule used in criminal law homicide

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Causation = Two Stage Analysis:

Causation involves an analysis into both factual causation (i.e. the medial cause of death/
whether the accused is the “but-for” cause) and legal causation (i.e. whether the accused should
be held responsible in law) (Williams):
[1] Factual Causation:
i. As there can be more than one cause of death, the causation test is not restricted to a
search for the most proximate, the primary, or the only cause of death (See Maybin)
ii. Regardless of whether the accused’s conduct is the sole cause, ask was it a material
cause? The test is this: Was the conduct of the accused a significant contributing
cause of the prohibited consequence? (Nette)
iii. If the act of the accused is too remote to have caused the result alleged, causation is not
established

iv. If the triggering of a chain of events is interrupted by an intervening cause, it can serve to
distance and exonerate the accused (R v Nette).
a. D’s withdrawal or abandonment can terminate the chain of causation, e.g. leaving
V in a building that then burns down 

b. D’s abandonment of the dangerous conduct requires a positive communication of
notice, sufficiency of which is determined by the nature of the offence and the
degree of D’s participation 

v. Factual causation is typically resolved by the ‘but for’ test

“Thin Skulled man” or “Eggshell Skull Rule”


- “It is a well-recognized principle that one who assaults another must take his victim as he
finds him ... “thin skulled man” may appear in the criminal law as in the civil law”.

[2] Legal causation: Examples of legal causation: reasonable foreseeability test, independent
intervening act test > blameworthiness
(i) This inquiry concerns whether D should be held criminally responsible in law for the
prohibited consequences: blameworthy? (Nette, Williams) 

(ii) Causation expresses an element of fault. That, together with the requisite mental element,
is in law sufficient to base criminal responsibility 

(iii) Note: there is a higher standard of legal causation to secure a first-degree murder
conviction (Nette) 


Criminal negligence: a wanton and reckless disregard for the lives and safety of others: s.
219(1)
- Involves a marked, substantial departure in all circumstances from the standard
of care of a reasonable person 

- In the context of a dangerously negligent act, the mens rea for the offence
charged is objective foreseeability of the risk of bodily harm which is neither trivial nor
transitory
- As is the case with crimes of subjective mens rea, the mens rea for objective foresight of

64
risking harm is normally inferred from the facts
Dangerous driving: marked departure from the standard of conduct of a reasonably prudent
driver in all circumstances: s. 249
- Based in negligence (standard of care): whether, viewed objectively, D exercised the
appropriate standard of care

R v. Sarrazin (2011) (SCC) – Cocaine may have “severed the chain of causation”
Background: Although an accused may still be held responsible for causing death when there
are concurrent causes of death, it will be necessary in some cases for the jury to be
instructed about whether an intervening event has “severed the chain of causation” in
such a manner that the accused’s actions are no longer a “significant contributing cause”
of the death.
Summary: SC in a 4:3 decision reversed a murder conviction and ordered a new trial in a case
where the victim who was shot in the stomach and barely survived died as a result of a
blood clot a few days after being released from hospital. A new trial would include the
possible verdict of attempted murder because pathologist would not rule out the
possibility that while the blood clot was probably related to the shooting, it could have
been caused by the cocaine ingested by the victim shortly before his death.

R v Reid and Stratton (NS CoA, 2003): Jury trial instructions re intervening act
- Facts: Accused rendered deceased unconscious by headlock, but V died when his friends
attempt to resuscitate him caused him to choke to death on his own vomit
- Issue: NS CoA concluded that jury should be asked whether it was satisfied “beyond a
reasonable doubt that the actions of the accused are so connected to the death … that they
can be said to have had a significant causal effect which continued up to the time of his
death, without having been interrupted” by the intervening botched resuscitation. CoA
added that the jury must not be convinced that the accused’s actions were the “sole
cause” of death but rather, consistent with Nette, were “a significant contributing cause”
- Held: This approach remains valid after Maybin, with questions of whether the risk of
botched resuscitation was reasonably foreseeable or independent from the accused’s
action described as analytical guides to determining the ultimate issue of whether the
accused’s action was a significant contributing cause

e) Omissions - Some offences do not require a positive act by the accused. Rather, they can
be committed by showing that the accused failed to act, or omitted to act. Whether an
offence can occur by “omission” is a question of construction. To be guilty by omission
the offence must contemplate guilt for omissions, or the accused must be placed under
a legal duty to act either by the provision charging him or by some incorporated
provision, and the omission in question must be a failure to fulfill that legal duty.
- R. v. Peterson, [2005] O.J. No. 4450 (Ont. C.A.), leave to appeal refused. 

- R. v. Browne, (1997), 116 C.C.C. (3d) 183 (Ont. C.A.), leave to appeal refused 

- Roach pp. 121-123

- Some offences do not require a positive act by the accused. Rather, they can be
committed by a showing that the accused failed to act, or omitted to act. Whether an

65
offence can occur by “omission” is a question of construction.

To be Guilty of Omission (failed to act):


(1) The offence must contemplate guilt for omissions (based on statutory interpretation) OR
(2) The accused must be placed under a legal duty to act either by the provision charging him or
by some incorporated provision 
 (see ss. 215-217) 
 AND
(3) The omission in question must be a failure to fulfil that legal duty 


- Omission insofar as a legal duty is important because although the law prohibits harmful
conduct, it doesn’t require socially desirable conduct 

- Only binding and intentional commitments will suffice to make an accused criminally
liable for failing to act

Duty Arises When: common law duty OR statutory duty

- Common law duty potential problem - 
 in Canada, common law duties come
precariously close to creating common law crimes contrary to s.9 of CC, so preferred
approach to Miller(1983) (House of Lords held that a person who accidentally set a house
on fire had a duty to take reasonable steps to extinguish the fire or call the fire
department)is in the CoA’s decision which did NOT create a free-standing CL duty, but
instead found that the accused had adopted the ACT of setting the fire when he awoke
and did not take steps to put out the fire
- Regulatory offenses – more commonly penalize failure to act, such as failure to keep
proper records or mandating safety measures
- Duties may also be IMPLICIT to particular crimes – In R v. Moore refusal to identify self
to police officer held to be obstruction of a police officer under s.129 of CC - but J.
Dickson wrote strong dissent warning that “Criminal law is no place within which to
introduce implied duties, unknown to statute and common law, breach of which subjects
a person to arrest and punishment”

Failing to Provide Necessities of Life (s.215)

R v Peterson (2005): This case centers on sec. 215(1) (c) of the CC, which imposes a duty on
adult children to take care of their parents whom they are in charge of.
- Facts: D was convicted of failing to provide the necessaries of life to his elderly father
with whom he lived, yet lived on another floor, thereby endangering his life (s. 215)
- Accused father was dependent; since accused had a familial relationship with his father,
and was aware of the father’s dependency, he was under a duty to provide the necessaries
of life to his father
- S. 215(1)(c): Everyone is under a legal duty (c) to provide necessaries of life to a person
under his charge if that person (i) is unable, by reason of detention, age, illness, mental
disorder or other cause, to withdraw himself from that charge, and (ii) is unable to
provide himself with necessaries of life
o “Necessaries of life” = food, shelter, care, and medical attention necessary to

66
sustain life; also appears to include protection of the person from harm
- S. 215(2): Everyone commits an offence who, being under a legal duty within the
meaning of (1), fails without lawful excuse, the proof of which lies on him, to perform
that duty...
- Liability is on an objective basis: conduct showing a marked departure from
the conduct of a reasonably prudent person having the charge of another in
circumstances where it is objectively foreseeable that failure to provide
necessaries of life would risk danger to life or permanent endangerment of the
health of the person under the charge of the other, without lawful excuse
- D’s personal characteristics are not a relevant consideration (c.f. capacity to
appreciate the risk). The objective basis of liability includes an assessment of
whether D could have acted other than he did. 

- “Without lawful excuse”: a defence to prevent the punishment of the morally
innocent. The obligation to provide 
 necessaries is not absolute and may be
excused, e.g. for financial inability 

- “Under his charge”:
- Consider the relationship between the parties: dependency of disabled parent
on independent adult child. Past course of dealing and element of trust are
accounted for in determining whether D was ‘in charge’ 

- “Charge” therefore connotes the duty or responsibility of taking care of a person
or thing 

- Consider relative positions of the parties and their ability to understand
and appreciate their circumstances. 

- An elderly parent who is not in full possession of his or her faculties may
not appreciate that he or she cannot provide himself or herself with the
necessaries of life and may not have the capacity to understand that he or
she is in an unsafe or unhealthy environment that is likely to cause
permanent injury
- Evidence indicates D was in charge of V, who was unable to withdraw from
D’s charge

Duty of Persons Undertaking Acts:


s217: imposes legal duty upon any one who undertakes to do an act if omitting to do it is or may
be dangerous to life.

R v Browne (1997): meaning of ‘undertaking’ vis-a-vis creating a duty to act


- FACTS: D charged with criminal negligence causing death of V after undertaking to take
her to hospital after she swallowed a bag of crack to avoid police check.

o Instead of calling the ambulance, D hired a taxi which took too long: Criminal
Negligence: ‘wanton and reckless disregard’ for V’s life (s. 219)

- ISSUE: whether an undertaking existed which would place the appellant under a legal
duty under to s.217.

67
- RULE: Based on the charge, to find a legal duty, a finding of undertaking must be first
established. Before someone is convicted of recklessly breaching a legal duty generated
by his/her undertaking, that undertaking must have been clearly made, and with binding
intent. Nothing short of binding commitment can give rise to the legal duty contemplated
by sec. 217.
- PRINCIPLE: “I’ll take you to the hospital” is NOT an undertaking under s.217.
- HELD: Undertaking (under s. 217) must be clearly made – commitment has to be
clear, binding; mere expression of words indicating a willingness to do an act cannot
trigger the legal duty.
o Only if the appellant can be found to have given an undertaking giving rise to a
legal duty under s. 217, can he be found 
 criminally negligent for "omitting to
do anything that it is his duty to do" within the meaning of s. 219 (criminal
negligence) 

o Given serious penal consequences of being convicted of causing death by
criminal negligence, the relevant undertaking must have been made with
binding intent. Evidence doesn’t disclose binding intent. 


Summary
- Moore (man on bike pulled over; refusal to identify oneself is obstruction of police
officer)
o Majority: implied duty to identify oneself.
o Strong dissent: no such duty in statute (there is one for motor vehicles but not for
cycles) or common law. To imply one would be to rewrite the statute. Contrary to
right to silence.

- Peterson (statutory duty: failing to provide necessities of life to person “under his
charge”, s.215)
o Under his charge: consider relationship of parties, past course of dealing, trust
between the two.
o Assumption of responsibility: publicly acknowledging such by conduct or words
to public.
o Parents refusal to accept care or inability to appreciate the need for necessaries is
not a defence.
- Browne: Criminal negligence under s.219 requires a duty with regards to an omission.
Duty can come from s.217: duty of persons undertaking acts (if omission to do the act
may be dangerous to life):
o Undertaking must be clearly made and with binding intent. “I’ll take you to the
hospital” was not enough to create a legal duty
o S.217 does not depend on relationship of parties like s.215. The relationship is
relevant to whether negligence is established (wanton disregard) under s.219.
- Other duties: s.216, s.218, etc.

68
18 18

ACTUS REUS SUMMARY CHART:

69
19 19


6. Subjective Mens Rea 

As indicated, subjective mens rea focuses on the actual state of mind of the subject of the
prosecution, namely, the accused. Since what someone thinks or knows is personal to her unless
communicated, subjective mens rea ordinarily must be gleaned circumstantially, including
by using the common-sense inference that persons usually intend the natural consequences
of their acts. Since the state of “knowledge” is not often manifested circumstantially the way
apparent intent is, a court is likely to assume that the accused knew of the elements of the
offence unless the so-called “defence of mistake of fact,” discussed below, is made out. The
close link between knowledge and mistake of fact makes it sensible to discuss the “defence”
together with this mens rea concept.
There are many states of mind described by the various Criminal Code provisions. For example,
one form of first degree murder requires proof of planning and deliberation (premeditation),
while second degree murder requires only that the accused intends to cause death, or intends to

70
cause bodily harm that he knows is likely to cause death.
Most offences require more than one mental state to exist. For example, to be guilty of
murder, the accused must know that the living thing she is killing is a human being and intend to
cause death to that human being. A sexual assailant must intend to touch the complainant, and be
aware or willfully blind that she is not consenting (although as indicated, that knowledge is likely
to be assumed absent a mistake of fact defence being raised successfully). Generally, fault must
be established in relation to all aspects of the prohibited act or actus reus though this is not an
absolute rule.
It is a close exercise of construction to see what mental states are required by a particular
offence. If an offence is explicit and specifies the relevant state of mind, then only that state of
mind will suffice. This is why “assault” contrary to section 265 requires “intentional” touching,
and not simply reckless touching. Many offences do not specify the relevant mental state. If a
true crime is silent as to the mental state, it is presumed under the common law that
intention or “recklessness” will suffice. Recklessness in Canadian criminal law requires
subjective advertence to the prohibited risk and should not be confused with negligence. The
presumption of some form of subjective fault gives way to the actual wording of the offence (see
the offence in what is now s. 319(2) of the Code charged in R. v. Buzzanga and Durocher
below, which was found to require the Crown to prove actual intention to bring about the
consequence because of the specific statutory wording of the offence). A few crimes such as
murder and attempted murder have a higher constitutionally required fault element because of
their stigma and penalty.
It is important to be as specific as possible in describing the fault element for a particular
offence. In particular, care should be taken to articulate the precise fault element and its relation
to the actus reus.
- For a general discussion of various fault elements see Roach pp. 169-186

20 20

2. SUBJECTIVE MENS REA (“MR”)

Introduction:

Introduction:

ThefocusThe
is onfocus is state
the actual on the actual
of find state of
of the accused. mind of
It normally the
must be accused. It normallyincluding
gathered by circumstances, must be usinggathered
the commonby
circumstances,
sense inference including
that people normally using
intend the naturalthe common-sense
consequence of their acts.inference that people normally intend
the natural consequence of their acts.
Subjective MR operates as a doctrine that prevents the conviction on someone who, for whatever reason, does not have knowledge
andforesight
Subjective MR operates
that a reasonable person wouldashave.
a doctrine that
It operates to prevents
protect the of
those because conviction on someone
impaired reasoning who, did
or lack of thought, for
not recognize or intendreason,
whatever what maydoesbe obvious
not tohave
the reasonable
knowledge observerand foresight that a reasonable person would
have.
Each crime has aIt operates
specific to protect
fault element those
that must because
be related ofofimpaired
to the AR reasoning
the specific crime. orthere
In Canada lackis of thought,
confusion did
because
nothasrecognize
Parliament not clearly and orconsistently
intend what definedmay be obvious
fault elements to the reasonable
such a “purposely” “knowingly”,observer
“recklessly”, or “negligently”, or
specified which particular fault element applies for each offence. Thus, MR is often inferred by the courts from the legislative
 Each crime has a specific fault element that must be related to the AR of the specific
definition of each separate offence.
- For crime. In Canada,
those offences there
not specifying is state,
mental confusion
the courtsbecause
have to inferParliament haselement
what type of fault not clearly and consistently
is required
defined fault elements such a “purposely” “knowingly”, “recklessly”, or “negligently”, or
Because knowledge manifests from intent, the law assumes that A knew of the elements of the offence, unless “defence of mistake of
specified
fact” is made out. which particular fault element applies for each offence. Thus, MR is often
inferred by the courts from the legislative definition of each separate offence.
Determining o the MR Forofthose
an offence depends not
offences on construction
specifying to see what mental
mental state,states
theare required
courts haveby ato
particular offence.
infer what type
of fault element is required
Most offences require more than one mental state to exist. For example, to be guilty of murder, the accused must know that the
 thing
living he is killing
Because is a human being
knowledge and intendfrom
manifests to cause death tothe
intent, that human being. A that A knew of the elements
law assumes
For some ofserious
the offence,
crimes (i.e.;unless
murder, “defence of mistake
attempted murder, ofthe
war crimes), fact” is made
principles out. justice (section 7) require that
of fundamental
the crown prove that the accused subjectively knew that the prohibited result was likely to occur (the supreme court has ruled that it is
not required for most other crimes) – i.e.; for such offences, subjective knowledge of the actus reus is a constitutional requirement

71
Purpose of MR:

R v Theroux 1993 CCC: “to prevent conviction of the morally innocent—those who do not understand nor intent the consequences
 Determining the MR of an offence depends on construction to see what mental
states are required by a particular offence.
 Most offences require more than one mental state to exist. For example, to be guilty
of murder, the accused must know that the living thing he is killing is a human being and
intend to cause death to that human being.
 For some serious crimes (i.e.; murder, attempted murder, war crimes), the principles of
fundamental justice (section 7) require that the crown prove that the accused
subjectively knew that the prohibited result was likely to occur (the supreme court has
ruled that it is not required for most other crimes) – i.e.; for such offences, subjective
knowledge of the actus reus is a constitutional requirement

Purpose of MR:
 R v Theroux 1993 CCC: “to prevent conviction of the morally innocent—those who do
not understand nor intent the consequences of their acts.”

Subjective vs. Objective MR:


 Subjective: Crown must establish that accused subjectively had the required guilty
knowledge in relation to the specified circ or consequences
 Objective: Crown must only establish that a reasonable person in the accused’s position
would have had the required guilty knowledge or would have acted differently

Inferences will be drawn from evidence provided, trier of fact will no doubt always inevitably
consider what a reasonable person would have thought. But: R v Buzzanga 1979: “what a
reasonable would have known may provide the basis for the jury to conclude the accused had a
particular subjective mental element BUT it never requires jury to make such a determination.

Supreme Court has kept clear distinction between Objective (“OB”) and Subjective (“SUB”)
fault elements, but they are increasingly willing to see OB as an appropriate form of fault:
 Wholesale Travel Group 1991 CCC:
o Significance: in the context of regulatory offences outside the CC, negligence
should not be forgotten as a fault element, which measure against an objective
standard, irrespective of A subjective mental state. Accepts negligence can be
sufficient fault level for ‘most criminal offences’ (p.174)
 R v Beatty 2008 SCR:
o Facts: SC uphold an acquittal for dangerous driving on basis that A had only
engaged momentary lapse when his vehicle went over the center line and killed 3
people.
o Significance: suggests that OB fault will not always follow from the commission
of an act that is in itself negligent – in all crim cases Crown must prove a ‘marked
departure’ from reasonable standard considering all evidence in the case.
Therefore, court elevated ‘marked departure’. Moreover, “modified objective
approach’ so to look at mental state of driver to determine whether it might raise
RD about whether accused was criminally neg. It focuses on administering OB
standard in contextual manner that is sensitive to the possibility that ‘a reasonable
person in position of A would not have been aware of the risk, or would not have
been able to avoid creating danger.

72
o Reasoning: Court elevated the marked departure standard to a constitutional
requirement because if every departure from the civil norm (ob) is
criminalized, regardless of degree, there is a risk of casting net too wide,
branding criminals who are in reality not blameworthy! This would violate
the principles of fundamental justice (morally innocent cannot be deprived of
liberty)

In the cases included below, the most common mental states are identified and illustrated:

a) Intention, and Ulterior Mens Rea – Intention is a complex idea. The accused must
have the very intention required by the relevant provision. For example, Murray intended
to hold the Bernardo tapes, but not for the purpose of obstructing justice. He was
therefore not guilty. In Roks, the Court of Appeal stresses the importance of knowing that
death is probable and warns of the dangers of reasoning backwards from the fact that
death occurred.
- R. v. Murray, [2000] O.J. No. 2182 (Ont. S.C.J.) 

- R. v. Roks, 2011 ONCA 526 

- Roach pp. 186-193 


2.1: Intention, Ulterior MR [Subjective MR cont.]

The accused must have the very intention required by the relevant provision.


Intent is the highest level of subjective MR, acting with intent or purpose to achieve the
prohibited result, or to willfully pursue result.

In reality, intent is used infrequently, as common law presumptions and constitutional


requirements of SUB MR, do not require proof of intent and are satisfied by lower forms of MR
such a knowledge of recklessness; except where prescribed by statute ‘with intent’.

R v Vandergraff 1994 MJ: throwing jar at hockey rink (no intent to assault)
 D intended to throw the object, but not to make contact with the C. His assault was not
intended, thus he was not guilty. He could have been charged with criminal negligence
causing injury, but the wrong charge was laid
 PRINCIPLE: For a charge of assault, the accused must have intended to injure the
victim.

 HELD: Appeal allowed and acquittal entered. There was no proof of intention to apply
force to a person. Imputed intent to wound, maim, disfigure or endanger life, in the case
of aggravated assault where intent to apply force was already established, did not apply
here. The accused's conduct was foolish, negligent and may have been criminal, but did
not constitute assault.

R v Murray 2000 OJ: Bernardo Lawyer withholds evidence tapes (obstruction of justice)

73
 Bernardo’s lawyer, on Bernardo’s written instructions, attended at the Bernardo home
and removed videotapes that had significant evidence on it; the tapes weren’t handed
over for almost a year and a half later; Murray faced charge of attempt to obstruct justice
by concealing the tapes;
o RULE AR: The actus reus issue is whether Murray's action in secreting the
videotapes had a tendency to obstruct the course of justice.
o RULE MR: “Willfully” constitutes the mens rea - is the act is done for the
purpose of obstructing the course of justice. This is a “specific intent” – Crown
must prove he intended to obstruct the course of justice
 He may have believed he had no obligation to disclose the tapes before trial; thus
reasonable doubt
 There is no duty to hand over all evidence to the crown; just that it cannot be permanently
suppressed
 Murray stated he had planned to use the tapes in his defence case for Bernardo, and thus
to introduce them into evidence at such a time
 Murray intended to hold the Bernardo tapes, but not for the purpose of obstructing
justice. Therefore, not guilty

R v. (JS) 2008 ONCA: Jan Creba Shooting


 FACTS: Shootout between 3-5 shooters broke out; three bystanders were wounded; Jane
Creba was fatally wounded;
 ISSUE: Was there evidence that the accused had the intention for second degree murder
 RULE AR: Causation for the purpose of determining criminal liability for homicide is
not, limited to the direct and immediate cause. Section 222(1) of the Criminal Code
provides: A person commits homicide when, directly or indirectly, by any means, he
causes the death of a human being. "But for" the decision to engage in a gun fight on a
crowded street and the resulting exchange of bullets, Ms. Creba would not have been
killed.
 RULE MR: s. 229(c) is that the offender knows that the act or acts that are done for the
purpose of the unlawful object are likely to cause death, notwithstanding he desires to
effect his object without causing death or bodily harm to any human being. This creates a
requirement for the subjective foresight of death by the offender.
 HELD: He intended to shoot into a crowd, with intent to kill a human being, which opens
door to possible murder conviction.

R v Roks 2011 ONCA:


 CoA stressed the importance of knowing that death is probable and warns of the dangers
of reasoning backwards form the fact that death occurred.

Difference between Guilty Intent and Guilty Knowledge

This is demonstrated where the A knowingly engages in prohibited conduct, but does so for
another purpose such as avoiding harm:

R v Paquette 1975 CCC: (get away driver at gunpoint)


 Facts: Accused was held not to have formed a common intent under 21(2) to rob a store

74
when he drove the robbers to the store after being threatened at gunpoint. The D acted
with knowledge that his actions would contribute to the prohibited result.
 Significance: A person whose actions have been dictated by fear of death/ GBH cannot
be said to have formed a ‘genuine common intent’ to carry out an unlawful purpose with
the person who threatened him with those consequences if he fails to co-operate.
BUT
R v Hibbert 1995 CCC: (get away driver at gunpoint)
 Overruled Paquette on basis that it confuses intent and purpose with motive and desire.
In Paq, his motive of saving his own life does not prevent the formation of the unlawful
purpose of intentionally committing the robbery. Similarly Paq would act with purpose of
assisting the robbery required under 21(1)(b) if he intended to drive the getaway car and
by doing so assist the robbery. 

 Significance: SC rejected the idea that intent or purpose under sec.21 should be equated
with the accused’s desires and motivations. Depending on how the offence was
structured, the fact that person acted as a result of threats could in some instances be
relevant to the question of whether he or she possessed the MR necessary to commit the
offence. 


Motive vs. Intent:


Motive does not have to be proved for a crime; lack of motive or some innocent motivation will
not exonerate one who has otherwise committed the crime with the necessary guilty intent.
Motive is difficult to distinguish from intent because cases on the issue have not been
consistent.

 R v Dunbar 1936:
o Significance: SCC held that a person who assisted in a robbery had formed a
common intent to commit the crime. The fact that his motivation may have been
to avoid threats of death from his accomplices was irrelevant to the issue of MR
BUT:

 R v Paquette (1975):
o SCC indicated that a person who assisted in a robbery in response to threats of
death could not have formed a genuine intent to carry out the lawful purpose.
BUT:

 R v Hibbert 1995:
o Significance: motive of avoiding harm to self/other would not negate issue of
intent.

Exception to ‘motive not essential to offence’:


Terrorism offences created by Parliament at end of 2001, require prosecutor to prove various
forms of intent beyond a reasonable doubt and that act was ‘committed in whole or in party for a
political, religious, or ideological purpose, or objective cause. AKA- political or religious motive
is an essential element of crimes involving the commission of terrorist activities.

b) Subjective Mens Rea with Objective Features - Some criminal offences use

75
standards to define criminal conduct. For example, some assaults are sexual in their
nature, and others are not. Some acts are dishonest, and others are not. It is not sensible to
require the accused to have a subjective appreciation that the relevant criminal standard
has been met before a conviction can follow since that would permit the content of
offences to vary from offender to offender. For example, the accused can commit fraud if
he intends the relevant transaction, even if he does not appreciate that a transaction of that
nature is “dishonest.” If it were otherwise objective, dishonest people would be held to
lower standards than the rest of us. Or an accused can commit sexual assault if he intends
to touch another, even if he does not believe that the contact is sexual in nature, so long
as it is. 

- R. v. Theroux, [1993] 2 S.C.R. 5

- R. v. Chase, [1987] 2 S.C.R. 293 

- Roach pp. 442-445 discussing Chase and objective features of sexual assault 

- Roach pp. 460-463 discussing Theroux and objective features of fraud 


2.2: Subjective MR with Objective Features:

Some criminal offences use standards to define criminal conduct. For example, some assaults are
sexual in their nature, and others are not. Some acts are dishonest, and others are not. It is not
sensible to require the accused to have a subjective appreciation that the relevant criminal
standard has been met before a conviction can follow since that would permit the content of
offences to vary from offender to offender.
 Ex: an accused can commit sexual assault if he intends to touch another, even if he does
not believe that the contact is sexual in nature, so long as it is.

No need to require A to have a subjective appreciation that the relevant criminal standard
has been met before a conviction can follow since that would permit the content of offences to
vary from offender to offender
 Example: the accused can commit fraud if he intends the relevant transaction, even if he
does not appreciate that a transaction of that nature is dishonest.

R v Theroux 1993 SCR – fraud  subjective awareness (possibility of depriving) (interprets


MR of Fraud to require only subjective knowledge of the prohibited act combined with
subjective knowledge that the act could result in a deprivation including the placing of the
victim’s pecuniary interest at risk, does not require him to subjectively know his conduct was
dishonest)
 FACTS: The appellant was involved in building houses and sold several residences
before their completion. The appellant represented to the purchasers that their deposits
were insured, although no such insurance existed. When the corporation went bankrupt,
many purchasers lost their deposits. The appellant claimed that he believed that the
residences would be completed and that the purchasers would not be harmed.
 ISSUE: whether the fact that he honestly believed that the projects would be completed
negates the MR


76
 HELD: Appeal dismissed. The mens rea of fraud was established by proof of the
subjective knowledge of the prohibited act and the subjective knowledge that the
prohibited act could have as a consequence the deprivation of another.
o The accused must have subjective awareness that his or her conduct would put the
property or economic expectations of others at risk. 

o The accused's belief that the conduct was not wrong or that no one would be hurt
was no defence to a charge of fraud. The appellant deliberately lied to his
customers by representing to them that their deposits were insured. 

o The appellant committed deliberate falsehoods which caused or gave rise to
deprivation. Although the appellant believed that the houses would be completed,
he knew that his misrepresentations deprived the purchasers of the insurance
protection they believed they had. He knew that he was placing the purchasers'
deposits at risk, even though he believed that this risk would not materialize. 

 Significance: McLachlin. Question is whether one subjectively understands that their
actions could result in a prohibited outcome; their view of morality of this outcome is
irrelevant. Therefore, MR for fraud consists of subjective awareness that one was
undertaking a prohibited act that could cause deprivation (ie: depriving another of
property or putting that property at risk). Recklessness will result in this criminal
responsibility, as the courts will not require A to subjectively know his/ her conduct
was dishonest as relation to the AR.

Is the test for MR subjective or objective? 
 Most scholars and jurists agree that, leaving aside
offences where the actus reus is negligence or inadvertence and offences of absolute liability, the
test for mens rea is subjective. 

o Actus reus – Has its own mental element; the act must be the voluntary act of the
accused.

o Mens rea – Refers to the guilty mind, the wrongful intention, of the accused. Its function
in criminal law is to prevent the
 conviction of the morally innocent – those who do not
understand or intend the consequences of their acts. 


Subjective mens rea test – the test is not whether a reasonable person would have foreseen the
consequences of the prohibited act, but whether the accused subjectively appreciated those
consequences at least as a possibility. In applying the subjective test, the Court looks to the
accused’s intention and the facts as the accused believed them to be. 

o The question is whether the accused subjectively appreciated that certain consequences
would follow from his or her acts, not whether the accused believed the acts or their
consequences to be moral.

R v Eizenga 2011: the CA applied Thereoux reasoning to conclude that an ‘accused’s assertion
that he believed that no one would be hurt by his conduct was no defence, because a subjective
intent to mislead is not an essential element of the offence of fraud. Rather, all that is required is
subjective knowledge of the prohibited act, and that the act could have as a consequence the

77
deprivation of another.

Note: R v Zlatic 1993 SC finds differently from Thereoux when holding that accused had
necessary MR because he subjectively knew that when he gambled with money that was required
by creditors, he was placing their financial interests at risk, even though he also believed he
would win at the casino to pay his creditors.

Sexual Assault vs. Assault and Sexual Offences


Courts have distinguished Sex assault from assaults on the basis of whether the circumstances
viewed objectively, are sexual. The intent of the accused to obtain sexual gratification may be a
factor, but it is not required.

Sex assault differs from sexual offences with respect to young persons in CC ss.151-ss.153.1
because it does not require that the touching be for a sexual purpose.

s.265CC
1. Assault – A person commits an assault when:
a. without the consent of another person, he applies force intentionally to that other
person, directly or indirectly;

b. he attempts or threatens, by an act or a gesture, to apply force to another person, if
he has, or causes that other person to believe on reasonable grounds that he has,
present ability to effect his purpose; or

c. while openly wearing or carrying a weapon or an imitation thereof, he accosts or
impedes another person or begs.
2. Application – This section applies to all forms of assault, including sexual assault, ...

s.271
1. Sexual assault – Every one who commits a sexual assault is guilty of:
a. an indictable offence and is liable to imprisonment for a term not exceeding ten
years; or

b. an offence punishable on summary conviction and liable to imprisonment for a
term not exceeding eighteen months.

Commentary: Sexual assault is not defined. In general, it is an assault under s.265(1) committed
in circumstances of a sexual nature such as to violate the sexual integrity of V. The mental
element requires proof of a general intent only.

‘Sexual Assault’ ss.265 and 271 is a New Offence



o McIntyre J.: I agree as well with those who say that the new offence is truly new and
does not merely duplicate the offences it replaces. Accordingly, the definition of the term
“sexual assault” and the reach of the offence it describes is not necessarily limited to the
scope of its predecessors.

R v Chase 1987 SCR: MEANING OF “SEXUAL” IN CC

78
o Facts: C struggles with 15 year old girl and touches her breasts, says “I know you want
it.” Tried to grab genitals, did not succeed.
o Issue: What is the meaning of sexual in terms of the Code for sexual assault?

o Held: Sexual assault is an assault, committed in circumstances of a sexual nature.
o Test: Is the assault committed in circumstances of a sexual nature, such that the integrity
of the victim is violated. This is an objective test (reasonable person, look at totality of
circs)
o Significance: courts will examine ‘part of body touched, nature of conduct, words and
gestures accompanying the act and all other circumstances surrounding the conduct’, in
determining whether the assault is sexual.

R v V(KB) 1992 SCR: sex assault intent of gratification is not required



o Fact: Father grabs 3 year old genitals causing bruising and severe pain in an attempt to
discipline child who had been grabbing genitals of other children.

o Held: Sexual assault because it violated child’s sexual integrity.

R v Ewanchuk 1999 SCR:


o Significance: Crown need not prove that the accused had any MR with respect to the
sexual nature of his behaviour.
o Also: SC interpreted the AR of sexual assault as requiring proof of 3 elements: 1)
touching, 2) the sexual nature of the conduct, and 3) the absence of
consent(subjective and determined by the complainant’s state of mind)
o Also: Ct rejected defense of implied consent to sexual assault
o Conclusion: The Courts approach accords with a trend towards thinner versions of
intentional MR.

c) Knowledge – As indicated, bearing in mind what is said above about standards of criminality,
the accused must generally know that the conditions of the actus reus exist. For example, an
accused cannot be convicted of assaulting a police officer if she does not know the victim is a
police officer. Generally, it is reasonable to assume that the accused knows the things that would
be obvious to a reasonable person, and so we presume the accused knows of the relevant
conditions, unless the accused presents a “mistake of fact defence.” In the sexual offence
context, the mistake of fact defence is heavily limited for policy reasons. A number of provisions
deem knowledge where the accused has failed to take “reasonable steps” to determine actual
facts. This goes beyond the doctrine of willful blindness, discussed below.
- See CC ss. 265(4); 273.2 

- R. v. Ewanchuk, [1999] 1 S.C.R. 330 

- R. v. Levigne, [2010] 2 S.C.R. 3 

- R. v. ADH, 2013 SCC 28 

- Roach pp. 193-195, 448-458 

2.3: Knowledge:

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Knowledge is a slightly lower form of subjective MR than intent/purpose.

The accused must generally know that the conditions of the actus reus exist – e.g.; can’t be
convicted of assaulting an officer if it wasn’t known that the victim was an officer, knowledge is
usually also essential in possession (i.e.; of narcotics) cases

Unrealistic to expect the crown to prove what the accused actually knows, it is presumed that
the accused knew of the relevant conditions, unless the accused presents a mistake of fact
defence.

Knowledge has two components:


1. Belief – which is relevant to the determination of subjective mens rea
2. Truth – an objective fact that is required to establish the actus reus (not the mens rea) 


Section 229(c): states that a person is guilty of murder if he knows ‘he is likely to cause death
to a human being, notwithstanding that he desires to effect his object without causing death or
bodily harm to any human being. Moreover, 229(a)(ii) emphasized requirement of guilty
knowledge by providing a person who intentionally causes bodily harm is guilty of murder if he
or she knows that harm is likely to result in death.

**NB: NEW CASE in updated syllabus: R v. ADH, 2013 SCC 28 ** (see below)

Knowledge and Possession Offences

Knowledge is a common form of MR for possession-based offences:

R v Beaver 1957 CCC: no knowledge therefore no possession


o Facts: B agreed to sell heroine to undercover RCMP. Uses a defence that cop did not tell
him it was heroine.

o Held: SC ‘a person in physical possession of a substance would not be said to possess
that substances unless he knew the nature of the substance.

o Significance: Essence of the crime is a possession of the forbidden substance. In a
criminal case, there is no possession without knowledge of character of forbidden
substance.

o Note: But—a person who makes mistake about whether a drug is illegal would not have
defence because ignorance of law is no excuse.

Consent and Knowledge:


There are a number of provisions that deem knowledge where accused has failed to take
‘reasonable steps’ to determine actual facts:
o Section 265(4) Discusses A’s belief as to consent. ‘Where an A alleges that he believed
C consented to conduct, judge where there is sufficient evidence to satisfy, shall instruct
jury as to the determination of honest for A’s belief, to consider the presence of
reasonable grounds for that belief.

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o (A person commits an assault pursuant to Section 265(1), which applies to all
forms of assault listed in (2), and where no consent of the assault occurred
pursuant to (3).)
o Section 273.2: “it is no defense to a charge under 271, 272, 273 that A believed C
consented to the activity that forms the subject matter of the charge where:
o A. A’s belief arose from the accused’s
 i. Self-induced intoxication, or
 ii. Recklessness or willful blindness; or
o the A did not take reasonable steps, in circs known to him at the time, to
ascertain that C was consenting

R v Ewanchuk 1999 SCR: consent is subjective, determined by reference to victim’s internal


state of mind towards touching
o Facts: Woman (14) at interview in vehicle, leaves door open. After interview asked to
view his work in trailer behind van, she purposefully leaves door open, she closed it
thinking it was locked, no evidence door was locked; accused touched victim several
times (getting more intimate each time) even though she kept saying no; victim said if
she complied at all it was out of fear and that the accused knew the same
o Trial Judge: Acquitted A of sexual assault relying on defence of implied consent. CA
upheld.

o Issue: What is the understanding of consent in sexual assault
o Held: The MR is the (1) intention to touch and (2) knowing of, or being reckless or
willfully blind to a lack or consent.
o The trial judge erred when he concluded there was implied consent (as there can
be no such conclusion)
o Rule: Touching and sexual nature is determined on an objective basis, but consent is
subjective and determine by reference to C’s internal state of time towards the touching at
the time it occurred. The accused’s perception of C’s state of mind is irrelevant to
determining the AR, the A’s belief of consent only relevant to determine MR of offence.
o Significance: The absence of consent, is purely subjective and determined by reference
to V’s subjective internal state of mind toward the touching at the time it occurred. SC
rejected defence of implied consent to sexual assault (obvious policy reasons)
o Test for Consent: The existence of consent for purpose of defining AR in sexual assault
depends on ‘the subjective perception of the V as opposed to external and objective
standard of law’. Therefore, consent is negated by V’s fear, unless it’s found not to be a
credible statement of her mind at the time the offence occurred.

The Components of Sexual Assault


o A conviction for sexual assault requires proof beyond reasonable doubt of two basic
elements, that the accused committed the actus reus and that he had the necessary mens
rea.
o Actus reus – unwanted sexual touching. Est by proof of 3 elements:

 (i) Touching (objective test)

 (ii) The sexual nature of the contact (objective test)


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 (iii) The absence of consent (subjective test; determined by reference to
the complainant’s subjective internal state of mind towards the touching,
at the time it occurred) (From victims perspective. Was she forced to
consent)
o Mens rea – the intention to touch, knowing of, or being reckless of or willfully
blind to, a lack of consent, either by words or actions, from the person being
touched. (Accused perspective)

Specific Instances where Consent is NOT valid!


o Section 265(3): No consent is obtained where victim submits or does not resist by
reason of:
o (a) Application of force to C or person other than C
o (b) Threats or fear of app of force to C or another
 R v Ewanchuk: SC: ‘fear need not be reasonable, nor must it be
communicated to A in order for consent to be vitiated.
o (c) Fraud

o (d) Exercise of Auth.

Honest but Mistaken Belief in Consent (simply a denial of the MR)


o Since sexual assault only becomes a crime in the absence of the complainant’s consent,
the common law recognizes a defence of mistake of fact which removes culpability for
those who honestly but mistakenly believed that they had consent to touch the
complainant.

Limits on Honest but Mistaken Belief in Consent


o “Continuing sexual contact after victim said “No” is, reckless conduct which is not
excusable”.

R v Levigne 2010 SCR: Undercover cop representing 13 yrs old, luring in child, must take
reasonable steps to find age
o Facts: Accused chatted for sexual purposes online with (an undercover officer pretending
to be) a 13-year-old; they arranged to meet and the accused was arrested and charged
with luring a child (s172); accused said he didn’t take any steps to ensure the boy was an
adult, but that he thought it was an adult pretending to be a boy because the profile had
said he was 18 – even though he kept saying he was 13; trial judge acquitted saying it
was possible the accused believed he was dealing with an adult pretending to be a 13-
year-old; court of appeal overturned acquittal
o By 172.1(3), where no evidence exists to contradict D believing he was
communicating with an underage sexual target, it is not a defence to a charge that
accused believed he was not underage, unless he took reasonable steps to
ascertain.
o Issue: Did the accused know that the other person was not underage

o Held: Appeal dismissed. Must read together the overreaching purpose of s.172.1- the
combined effect of (3)(4), this CA applied it properly. “Reasonable steps” invoked by
accused were neither ‘reasonable’ nor ‘steps’ to ascertain age; despite V’s repeated

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assertion that he was only 13.

o Significance: If represent to A that person whom he is communicating with is underage,
A is presumed to believe that he was in fact under age. This rebuttable presumption will
be displaced by evidence that A took all reasonable steps to ascertain the real age. Such
evidence will constitute ‘evidence to contrary’ under 172.1(3) and satisfy ‘reasonable
steps” requirement of 172.1(4).

R v. ADH, 2013 - child abandoned toilet, subjective fault is required


o Facts: Accused didn’t know was pregnant, gave birth while using the toilet in a retail
store. Thinking the child was dead, she cleaned up as best she could and left, leaving the
child in the toilet. The child was in fact alive. She admitted leaving baby. Charged with
unlawfully abandoning a child under the age of 10 years old and thereby endangering his
life contrary to s. 218 of the Criminal Code.
o TJ: The trial judge noted that the accused acknowledged that she had left her child in the
toilet, thereby committing the actus reus of the s. 218 offence. As for the mens rea, the
trial judge decided that subjective fault required, accused not shown to intend to abandon
her child. She had not known she was pregnant and truly believed she had delivered a
dead child.
o Held: The text, context and purpose of s. 218 of the Code show that subjective fault is
required. It follows that the trial judge did not err in acquitting the respondent on the
basis that this subjective fault requirement had not been proved.
o Reason: s. 218 of the Criminal Code does not expressly set out a fault requirement.
When read in light of its full context, it supports the conclusion that subjective fault is
required.
o Cromwell J. pointed out “the presumption that Parliament intends crimes to have
a subjective fault element.” He stressed that as a presumptive principle of criminal
law, presumption of subjective fault is an important value of our criminal law
system.
o While the conduct and people that fall within s. 218 are broadly defined, the
requirement for subjective fault ensures that 
 only those with a guilty mind are
punished. 

o The words “abandon”, “expose” and “wilful” all suggest a subjective fault
requirement. The first two of these
 words involve more than just leaving a
child alone or failing to take care of it: they denote awareness of the risk involved
o Conversely, any objective elements are absent from the text. 

o Dissent: Moldaver J. (Rothstein J. concurring) agreed with the majority’s decision but
disagreed with the requirement of subjective fault. Moldaver J. pointed out that s. 218 of
the Code is a child protection legislation aimed at shielding children under the age of 10
from the risk of death or permanent injury. He concluded “that a review of the
provision’s language, its legislative evolution and history, the gravity of the crime and the
social stigma associated with it confirm that the offence is duty-based and that penal
negligence is the level of fault required to establish guilt.”

d) Willful Blindness–Willful blindness is related to but distinct from recklessness. It is a

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subjective state of mind, requiring that the accused personally sees the risk of a fact, but
then willfully avoids confirmation so as to be able to deny knowledge. This concept fits
best when used as a substitute for knowledge, although courts (and Parliament in CC. s.
273.2) have an unfortunate habit of using “willful blindness” terminology as
interchangeable with recklessness. This leads to confusion. If the two concepts were
indeed interchangeable willful blindness would disappear because everyone who is
willfully blind is necessarily reckless – if you suspect that a fact exists but willfully avoid
confirmation so as to be able to deny knowledge (and are willfully blind) then you must
necessarily be seeing and taking an unjustifiable risk that the fact may exist (and are
reckless). The two concepts are not the same and should not be equated. 

6. - R. v. Currie, (1975), 24 C.C.C. (2d) 292 (Ont. C.A.) 

7. - R. v. Vinokurov, 2001 ABCA 113 

8. - R. v. Briscoe, 2010 SCC 13 

9. - Roach pp. 195-197 


2.4: Willful Blindness

Wilful blindness is related to but distinct from recklessness. It is a subjective state of mind,
requiring that the accused personally sees the risk of a fact, but then willfully avoids
confirmation so as to be able to deny knowledge. This concept fits best when used as a substitute
for knowledge, although courts (and Parliament in CC s.273.2) have an unfortunate habit of
using “wilful blindness” terminology as interchangeable with recklessness. Leads to confusion as
they are both different

Where the accused is deliberately ignorant as a result of blinding himself to reality, the law
presumes knowledge

R v Briscoe 2010 SCR (below):


o Significance: where A subjectively sees the need for further inquiries about the existence
of prohibited consequences or circs but deliberately fails to make such inquiries because
he does not want to know the truth. Willful blindness is used as a substitute for
‘knowledge’

Distinction b/w Recklessness and WB:


The term “willful blindness” works best as a substitute for knowledge, although courts have the
unfortunate habit of using ‘willful blindness’ terminology as interchangeable with recklessness’:
Example- Criminal Code s. 273.2. This had led to considerable confusion, and if they two
concepts were indeed interchangeable- willful blindness would disappear because everyone who
is willfully blind is necessarily reckless. Thus, the two concepts (WB and Recklessness) are
not the same and should not be equated.

** R v Sansregret 1985: SCR leading definition for recklessness/willful blindness


o Significance: Willful blindness is distinct from recklessness because, while recklessness
involves knowledge of a danger or a risk and persistence in a course of conduct which

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creates a risk that the prohibited result will occur, willful blindness arises when a person
who has become aware of the need for some inquiry declines to make the inquiry
because he does not want to know the truth. Therefore, he would prefer to remain
ignorant
o Recklessness: One who, aware that there is danger that his conduct could bring about the
result prohibited by the criminal law, nevertheless persists, despite the risk
o Willful Blind: Person who has become aware of the need for some inquiry, but declines
to make inquiry because he does not wish to know truth and prefers to remain ignorant.

R v Currie 1975 CCC: forged endorsement cheque cashed



o Facts: Charged for unlawfully and knowingly uttering a forged doc. Claimed he didn’t
know it was stolen with forged signature on back and was only trying to help guy who
gave it to him, who seemed like an honest guy. Convicted on ground he was willfully
blind by TJ.

o TJ: Held he should have made inquiries into the cheque and he deliberately/knowingly
neglected to do so, thereby making himself wilfully blind to the situation; accused
appealed

o Held: Appeal allowed, CA acquitted.

o Signif: The doctrine of constructive knowledge has no application in criminal law

o Reason: Willful blindness only applicable when a suspicion arises and person omits to
make further inquiries. Currie was never suspicious, perhaps he ’ought’ to have known,
but this does not constitute knowledge for the purpose of criminal liability

R v Vinokurov (2001):
o Facts: D charged with 7 counts of possession of stolen property (s.355(b)); where he
worked at pawn shop and accepted stolen goods from prison inmate. TJ found Crown
failed to prove BRD that D was ‘willfully blind’ but there was no doubt he was reckless
because he had not queried the source of the goods being pawned, even though he knew
he was buying them from an inmate.
o Issue: Is recklessness proper?
o Held: TJ erred in determining recklessness, as recklessness required consciousness of the
risk. And this conscious risk was not proved BRD. Acquitted.
o PROOF: Crown must prove that the accused knew that the property was stolen. When
the term "knowingly" is used, the reasonable person standard will not satisfy the mens rea
requirement.

R v. Briscoe – [2010]- helped lure victim who was later raped and killed by another

o Facts: Accused was charged jointly for kidnapping, aggravated sexual assault, and first
degree murder; he and others lured victims into their car; L had said he wanted to find
someone to kill; accused drove them to a secluded area, and stood by and watched as
victim was raped and murdered
o Issues: Was the accused wilfully blind to the rape and murder

o Held: Accused appeal from appeal court’s setting aside of the acquittal is dismissed

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o It wasn’t required that the accused desired that the offences be successfully
committed 

o Though he didn’t do the raping and murdering, in order to have the intention to
assist in the offence, he had to have known
 that the main perpetrator intended to
commit the crimes, though not precisely how 

o The aider doesn’t have to have the same mens rea as the actual killer, but that he
had the knowledge of the killer’s intentions
 and acted with the intention to assist
the killer, then if the aider makes himself wilfully blind, knowledge can be
substituted if his suspicion was aroused to the point where there was a need for
further inquiries, but deliberate choice not to make those inquiries 

o Accused own statements suggest that he had strong, well-founded suspicion that
someone would be killed that night, and that he might have been wilfully blind to
the kidnapping and sexual assault
o Wilful blindness can substitute for actual knowledge when knowledge is a
component of the mens rea of an offence 


The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) of the Criminal
Code has two components: intent and knowledge.
o INTENT: Crown must prove that the ∆ intended to assist the principal in the commission
of the offence. It is not required that the accused desired that the offence be successfully
committed.

o KNOWLEDGE: In order to have the intention to assist in the commission of an offence,
the aider must know that the principal intends to commit the crime, although he or she
need not know precisely how it will be committed. It is sufficient that he/she, armed with
knowledge of the principal's intention to commit the crime, acts with the intention of
assisting the principal in its mission.

Summary:
o Currie (cashing forged cheque for stranger): “if a party has a suspicion aroused but then
deliberately omits to make further enquiries, because he wishes to remain in ignorance,
he is deemed to have knowledge”.

o Vinokurov (denying knowledge of stolen goods by pawn shop owner): a lower form of
MR than recklessness. WB is a substitute for knowledge and R is not.
o Briscoe (driver to rape/murder didn’t want to know what they were going to do):
o WB does not define the MR required for a particular offence. It can substitute for
knowledge (a component of MR).

o TEST: Imputes knowledge to accused where suspicion is aroused to the point
where he or she sees the need for further inquiries, but deliberately chooses not to
make such inquiries.
o Failure to inquire may lead to R or N but WB is not simply a failure to inquire but
deliberate ignorance (the key difference)
10.

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e) Recklessness – Recklessness is a subjective state of mind that requires the accused to act in
spite of actually and personally foreseeing the risk that if she does act, the prohibited
consequence will be brought about. It therefore differs from negligence which can apply even if
the actor does not personally see the risk, provided a reasonable person would have. Still,
recklessness is a subjective mens rea with objective features because it exists only where it is
objectively unjustifiable to take that risk the accused understood he was taking. The fact that the
accused may have felt the risk to be justifiable would be no answer. Recklessness will apply
where the provision creates a consequence, but does not, as a matter of construction, require
some more limited kind of mens rea.
- See R. v. Theroux, above 

- R. v. Buzzanga and Durocher, (1979), 25 O.R. (2d) 705 (Ont. C.A.) 

- Roach pp. 197-198 

2:5 Recklessness:

THUS, recklessness requires that the accused have actual awareness of the risk of a consequence
even though the accused may not intend the consequence to occur. Recklessness does not imply
that the accused had actual knowledge that the consequence would occur, only that a risk or a
possibility of a certain prohibited criminal consequence could occur.

“It is the conduct of one who sees the risk and who takes the chance” (Sansregret v R).

Recklessness Accused is aware that there is danger that his conduct could bring about the
result prohibited by the criminal law, nevertheless persists, despite the risk.

It can be distinguished from negligence because it requires a subjective advertence of the risk
and not the risk a reasonable person would have seen.

Still, recklessness is a subjective mens rea with objective features because it exists only
where it is objectively unjustifiable to take that risk the accused understood he was taking.

Knowledge vs. Recklessness:


o Recklessness requires A is subjectively aware of the possibility of the prohibited act
o Knowledge: requires A be aware of the probability of the prohibited act. 


R v Buzzanga & Durocher 1979: Significance: defines intention and knowledge


o Facts: D published doc that appeared to promote hate of Francophone. His actual
intention being to sway public opinion in favour of building French-language in
highschool. Charged/ convicted with willfully promoting. TJ treated D’s testimony that
they ‘wished to create a ‘uproar’ as a virtual admission that they had the state of mind
requisite for guilt
o Issue: did TJ err in his decision

o Held: YES. Appeal allowed, new trial ordered

o Significance: Intention to create ‘uproar’ is not the same thing as an intention to promote

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hatred and it was an error to equate them. If they were indeed intending to promote
hatred, they would be guilty regardless if their motive was to produce reaction to help
establish French-hatred.

Recklessness VS Wilful blindness


The culpability in recklessness is justified by consciousness of the risk and by proceeding in the
face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to
inquire when he knows there is reason for inquiry.

R v Theroux (1993) 2 S.C.R. 5 (For facts see above)


Fraud
Actus Reus of Fraud:
1. the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and
2. deprivation caused by the prohibited act, which may consist in actual loss or the placing
of the victim’s pecuniary interests at risk. 

Mens rea of fraud:
1. subjective knowledge of the prohibited act; and 

2. subjective knowledge that the prohibited act could have as a consequence the deprivation
of another (which deprivation may consist in knowledge that the victim’s pecuniary
interests are put at risk). 


Where the conduct and knowledge required by these definitions are established, the accused is
guilty whether he actually intended the prohibited consequence or was reckless as to
whether it would occur.

Sansregret v R (1985) 1 S.C.R. 57-Leading Rape Case


PRINCIPLE: Definition of Negligence / Recklessness / Wilful Blindness / Knowledge
 -
Sansregret is a leading decision on the crime of rape. Mr Justice McIntyre authoritatively defined
and distinguished the concepts of recklessness and wilful blindness as follows:
o Negligence – the failure to take reasonable care, is a creature of the civil law and is not
generally a concept having a place in determining criminal liability. Negligence is tested
by the objective standard of the reasonable man. A departure from his accustomed sober
behaviour by an act or omission which reveal less than reasonable care will involve
liability in civil law but forms no basis for the imposition of criminal penalties
o Recklessness – to form a part of the criminal mens rea, must have an element of the
subjective. It is found in the attitude of one who, aware that there is danger that his
conduct could bring about the result prohibited by the criminal law, nevertheless persists,
despite the risk. It is, in other words, the conduct of one who sees the risk and who takes
the chance.
 A finding of recklessness could not override the defence of mistake of fact.
It could be used as a defence.
o Wilful blindness – is distinct from recklessness because, while recklessness involves
knowledge of a danger or risk and persistence in a course of conduct which creates a risk
that the prohibited result will occur, wilful blindness arises where a person who has
become aware of the need for some inquiry declines to make the inquiry because he does

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not wish to know the truth. He remains ignorant.

2.6: Transferred MR
o Section 229(b) codifies CL doctrine of transferred intent. MR of intentionally or
knowingly causing death to one person is transferred to the killing of the victim, even
though the accused ‘does not mean to cause death or bodily harm’ to the victim and does
by ‘incident or mistake’.
o R v Droste (no.2) 1984: transfer if accidental

o Fact: D kills two children accidently via asphyxiation by incident when in a
deliberate attempt to kill his wife, set fire to the car.
o Held: Because of attempted murder of A’s wife was planned and deliberate, and
the intent of planning and deliberation, as well as the guilty knowledge that death
would result, could be transferred to children’s death.
o R v Deakin 1974: intent to strike A, transfers to intent to strike B,C,D

o Fact: A attempts to strike another person and in doing so causes bodily harm for a
bystander
o Held: Conviction of assault pursuant to section 229(b).
o R v. Fontaine (Manitoba, 2002) - intent to kill self does NOT transfer if accidentally
kill other person

7. Objective Mens Rea and True Crimes

Negligence is judged objectively, according to what a reasonable person would know or


understand or how a reasonable person would act. The criminal law has long been uncomfortable
with objective fault, as historically the criminal law responded to an “evil” mind, and careless
people may be dangerous but they are not evil. Gradually the law has come to accept objective
fault, but to adapt it to the criminal law by requiring a marked departure standard from
reasonable standards and to require it to be contextualized to reflect all the circumstances,
including after R. v. Beatty the accused’s explanation and state of mind. That said, the
ultimate issue is whether the accused can be said to have engaged in a marked departure
from the standard of care expected of the reasonable person. In R. v. Creighton the Court
rejected the idea that mens rea always has to match perfectly all aspects of the actus reus. In
that case, the Court in a 5:4 decision held that the fault for unlawful object manslaughter was
objective foresight of bodily harm (rather than death) and that the objective test should be based
on a simple reasonable person standard with the personal characteristics of the accused not being
relevant unless they revealed an incapacity to appreciate the prohibited risk. Negligence cannot,
however, be used as the basis for murder, attempted murder or war crimes, where, as a
matter of constitutional law, convictions must be based on subjective mens rea in the form of full
scale intention. Recall, as well, the common law presumption that crimes require subjective
fault unless something in the wording of the offence suggests objective fault. For crimes
using objective fault as the mens rea, “penal negligence” - a more restricted form of negligence
requiring a marked departure from reasonable standards of care - is generally required.

One exception is with “predicate offences,” those aggravated forms of offence that apply
when serious consequences result, and that include within their elements another complete

89
but lesser offence, a “predicate” offence. For predicate offences the consequence need not be
brought about by “penal negligence.” It is enough if the accused commits the underlying or
predicate offence (which might of course require subjective fault), and that the aggravating
consequence was thereby caused. Also, for the specific offence of criminal negligence, the
higher standard of a “marked and substantial” departure must be proven.
- R. v. Martineau, [1990] 2 S.C.R. 633 

- R. v. Creighton, [1993] 3 S.C.R. 3 

- R. v. Beatty, 2008 SCC 5 

- R. v. J.F. 2008 SCC 60 

- Roach pp. 199-208 


What is the ‘reasonable person’?


Some judges have been attracted to making the ‘reasonable person resemble the accused’ R v
Beatty/ R v Tutton, however the law is now sound, and R v Creighton is good law identifying
the marked departure test:
o Although the accused must live up to the standard of a reasonable person, that standard of
conduct could be determined on the basis of the accused’s own perception of the
circumstances – then the issue becomes whether the reasonable person in the same
circumstances would have been aware of the risk of the prohibited act
o The purpose of examining these factors is not to determine that the accused had the
subjective mens rea, but rather to determine whether the accused conduct was a
marked departure from the standards of the reasonable person.
o The court has recognized that this marked departure standard is required under
section 7 of the charter (R v. Beatty)

R v Creighton 1993 SCR: cocaine death


o FACT: Accused, another, and victim shared large quantity of alcohol and cocaine at
victim’s apartment; at one point accused injected victim with cocaine, and as a result,
she went into cardiac arrest; accused and the other tried to resuscitate her; when they
couldn’t, the other wanted to call emergency, but accused intimidated him not to; he
cleaned the apartment of fingerprints and left the victim to die; the other later called
emergency but the victim had already died; accused charged with manslaughter, but since
it was while trafficking drugs (when he injected her), it fell under section 222(5)(a)
(causing death by means of an unlawful act);
o Crown argued Manslaughter as death was a direct result of unlawful act. TJ
convicted and upheld by CA. The common law’s definition of ‘unlawful Act
Manslaughter required the objective foreseeability of the risk of bodily harm,
which was neither trivial or transitory. Foreseeability of death is not
required.
o ISSUE: What is the meaning of negligence in criminal law. 5:4 decision
o HELD: appeal dismissed, convicted.
o 1. Test for mens rea of manslaughter while committing an unlawful act is
objective foreseeability of the risk of bodily harm that is not trivial –

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foreseeability of risk of death is not required. Established that reasonable
person in same circumstances would have been aware of likelihood consequences
of unlawful conduct would create risk of harm. 

o 2. The reasonable person used to determine objective liability is based on the
simple reasonable person standard, with personal characteristic of the accused not
being relevant unless they revealed an incapacity to appreciate the prohibited act.
o 3. Personal factors such as: inexperience of youth, lack of education, foresight of
risk of an experienced drug user, as Lamer CJ representing the minority wished to
consider, was not accepted by the majority. 

o 4. McLaughlin for majority, indicated the Lamer approach personalized the
objective test to the point that it becomes a subjective test! 


Exceptions for Consideration:


The only personal characteristics of accused are those that are so extreme as to create an
incapacity to appreciate the prohibited risk or the quality of the prohibited conduct
o EXAMPLE: Accused’s illiteracy if he or she was charged with a crime stemming from
the mishandling of a marked container containing a dangerous substance. The accused’s
age and level of education however, would not normally be considered when applying the
reasonable person standard.

Crimes using Objective Fault as MR:


The SCC has required a marked departure from the conduct of a reasonable person even when a
criminal offence seems to require simple negligence.

R v Beatty 2008 SCR


o Facts: Charged with dangerous operation of motor vehicle causing death; his truck
suddenly crossed the divider into oncoming traffic; he had been driving properly prior to
the accident with no evidence of speeding or vehicle failure or intoxicants; accused said
he didn’t know what happened, that he must have fallen asleep; trial judge acquitted on
the basis that the few seconds where he suddenly fell asleep did not support a marked
departure from the standard of care of a reasonably prudent driver; court of appeal found
there was marked departure and set aside acquittals and ordered new trials; accused
appealed
o Signif: A ‘marked departure’ from reasonable standards is necessary to distinguish
criminal from civil negligence and to ensure restrain in the use of the criminal law. This
is a requirement of Section 7 of the charter.
o Ratio: Affirmed that a modified objective approach taking person traits into account is
not required when applying standards of criminal negligence. It suggested judges
examine the accused’s state of mind, ONLY to determine if there is a reasonable doubt
about whether a reasonable person in the accused’s position would have been aware of
the risk created by this conduct.

R v Martineau 1990 SCR:


o Facts: X and A rob trailer, During which X killed occupant contrary to what A had
intended. TJ used objective foresight as the MR.

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o Issue: Do felony murder and the objective foresight standard violate the Charter?
o Test: Subjective foresight of death must be proven BRD before there a conviction for
murder would be sustained.
o Signif: It is unconstitutional to convict a person of murder under s.229(c) of the CC on
the basis that while pursuing an unlawful object, he ought to have known that death
was likely to result
o Pursuant to s.7 Charter, the Crown must prove that A has subjective
knowledge that death is likely to result before that person can be convicted of
murder (this is because the stigma and mandatory life imprisonment of murder).
o Note: Court has defined manslaughter quite broadly to apply to an accused who causes
death when a ‘reasonable’ person would have foreseen risk (Creighton).

As Martineau demonstrates, Negligence is not accepted for murder, attempted murder and war
crime. For crimes using OBJECTIVE fault as MR ‘penal negligence’, a more restricted form of
negligence requiring a ‘marked departure from reasonable standards of care’ is generally
required.

One exception is with predicate offences (stat prov/ logic), in which consequences need not be
brought by penal negligence, rather it is enough that A commits the underlying offence and that
aggregated consequences that has been there caused was objectively foreseeable.

For the specific offence of criminal negligence, the higher standard of a marked and
substantial departure must be proven:
o This was distinguished in R v J.F. 2008: where the court cited a number of cases in
which the appellate courts had distinguished criminal negligence causing death/ bodily
harm from dangerous driving 

o Criminal negligence requires marked and substantial departure from reasonable conduct;
and dangerous driving requiring only a marked departure. 

o This is justified because criminal negligence was subject to more serious maximum
sentences than failing to provide the necessities of life. 


Thus, R v J.F., demonstrates the distinctions in the degrees of objective fault between the
general rule and of proof of a marked departure from reasonable conduct and the higher standard
of marked and substantial departures from reasonable conduct required.

Dangerous Driving Causing Death:


R v Roy 2012 SCC: dangerous driving, causing death, marked departure
o Facts: Affirms Beatty, Acquit a person of dangerous driving causing death after he drove
into the path of an oncoming tractor when entering highway at a difficult intersection
when foggy.

o Held: Trier of fact must find fault going beyond carelessness and amounting to a marked
departure from standard of care expected from a reasonable person. All circs should be
considered in making fault determination, but its consistent with Creigton specific
characteristics are not taken into account


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34o Significance: all evidence must be examined and fault should not be automatically 34
deduced even from a dangerous act.
MENS REA SUMMARY CHART

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35 35

8. Regulatory Offences

Regulatory offences can be created by any level of government. They are created in order to
regulate conduct and prevent harm rather than punish inherently wrongful conduct. They are
presumed to be “strict liability” offences (offences where the Crown need only prove the actus
reus, with the accused bearing the burden of proving an absence of negligence or a reasonable
mistake of fact to avoid conviction). By requiring the accused to establish a defence of due
diligence or reasonable mistake of fact on a balance of probabilities, strict liability offences
violate the presumption of innocence under s. 11(d) of the Charter, but as in Wholesale
Travel that has been upheld as a reasonable limit on such rights given that the accused has
entered a regulated field.

Not all regulatory offences, however, will be strict liability offences. Some can be full mens
rea offences just as true crimes are, provided there is a clear indication that mens rea is
required. Some regulatory offences operate as absolute liability offences that will be committed

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whenever the relevant actus reus is proved, provided this is clearly what the legislators intended
when establishing the offence. Absolute liability offences such as the requirement for timely
retraction in Wholesale Travel offend principles of fundamental justice and will violate s. 7
of the Charter if there is a possibility that they will result in imprisonment or otherwise
violate rights to life, liberty or security of the person. Given the different modes of
interpretation used, it is important to be able to distinguish true crimes from regulatory
offences. The Court has also recognized a defence of officially induced error that can apply both
to criminal and regulatory offences, but is most relevant to regulatory offences.
- R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 

- Reference re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R.
486 

- R. v. Wholesale Travel Inc., [1991] 3 S.C.R. 154 (holding timely retraction

 requirements to be an unconstitutional form of absolute liability but upholding strict
liability offences that require the accused to establish a due diligence defence on a
balance of probabilities). 

- R. v. Raham, 2010 ONCA 206 (C.A.) 

- Levis (City) v. Tetreault, 2006 SCC 12 (recognizing defence of officially
induced error, and summarizing the Court’s approach to classification of regulatory
offences and the due diligence defence) 

- Roach pp. 219-235 

- Roach pp. 105-106 (discussing officially induced error) 


There are presumed to be ‘strict liability’ offences; some are ‘absolute liability offence’. (only
difference is that in strict liability, reasoable care can be a defense)

Purpose: Primary purpose of regulatory offences is to deter risky behaviour and prevent harm
before it happens rather than to punish intrinsically wrongful and harmful behaviour – they
emphasize the protection of the public from the risk of harm and the regulatory interests of the
modern state, as opposed to the punishment of inherently wrongful and harmful conduct

3 Types of Regulatory Offences:


Courts were faced with interpreting regulatory offences to required either:
1. Absolute Liability: conviction followed from the commission of the prohibited act,
solely needing AR, no MR; liability without fault; they are only vulnerable under s.7
Charter when they actually deprive liberty/ life/ security by imposing terms of
imprisonment
2. Subjective MR Offence: frustrates the objectives of regulatory scheme by requiring the

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Crown to prove someone in a large organization had guilty knowledge
3. Strict Liability: fault based negligence and thus satisfy the requirement under s.7—that
morally innocent who act without fault not be punished, but violate presumption of
innocence under s.11(d). Where Crown proves prohibited act of a SLO BRD, negligence
is presumed and burden shifts to A to rebut.

[1] Absolute Liability ≠ imprisonment, therefore AL ≠ MR (no option to refute


reasonableness)

Crown must prove commission of prohibited act BRD, no need to show fault element. For an
ALO, it is not open to the accused to exculpate himself by showing that he was free of fault (R v
City of Sault 1978)

The correct approach in public welfare offences is to relieve the crown of the burden of proving
mens rea – though crown must prove that the prohibited act was committed

R v City of Sault Ste. Marie (1978) SCC- created 3 categories of offences: Absolute, Strict, MR
o PRINCIPLE: Created three categories of offences: Absolute liability, Strict liability, and
Mens rea.

o FACTS: The City contracted with a garbage disposal company. They were charged with
polluting and, consequently, the City was also charged. The City appealed the charge.

o HELD: Since s.32(1) of the Ontario Water Resources Act created a public welfare
offence without a clear
 indication that liability was absolute and without any such
words as "knowingly" or "wilfully" expressly to import mens rea, application of that
criteria placed the offence in the category of strict liability. Proof of the prohibited act
prima facie imported the offence, but the accused might avoid liability by proving that it
took reasonable care. A new trial was ordered.
 Dickson J. for the SCC divided offences
into 3 categories:
o (1) Absolute liability– the offence consists simply of doing the prohibited act.
 It is no defence that the accused was entirely without fault.

 Cannot have absolute liability if imprisonment is a possible consequence.
o (2) Strict liability – the offence again consists simply of doing the prohibited act;
however, it is a defence if the defendant proves to the civil standard of the balance
of probabilities that he or she exercised reasonable care. Thus, there is a reverse
onus.
 An accused may absolve himself on proof that he took all the care which a
reasonable man might have been expected to take in all the circumstances,
in other words, that he was in no way negligent.
 If offence is “regulatory” and maintains imprisonment as a consequence,
law will be valid with a due diligence defence. If offence is a “true crime”,
then mens rea is required.
o (3) Mens Rea – the offence consists not only of doing the prohibited act, but of
doing so with the guilty intent.
o (4) Regulatory- maintains imprisonment as a consequence

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True Crimes: In the case of true crimes there is a presumption that a person should not be held
liable for the wrongfulness of his act if that act is without mens rea.

o In order to convict someone of a true crime, proof of intent or recklessness must be
proven.

For this case, there is no presumption of full mens rea, because (a) this is a public welfare
offence; (b) it comes from a provincial statute.
o Also, it was provincial legislation and thus could not be a true crime. The words
“knowingly” or “willfully” were not included. 

o The present case concerns the interpretation of two troublesome words frequently found
in public welfare statutes: “cause” and 
 “permit.” These two words are troublesome
because neither denotes clearly either full mens rea nor absolute liability. 

o The words “cause” and “permit”, fit much better into an offence of strict liability than
either full mens rea or absolute liability. 
 Therefore, proof of the act prima facie imports
the offence, but the accused may avoid liability by proving that he took reasonable care.
Significance: Create CL presumption that regulatory offences would be interpreted as
requiring SL unless the legislature clearly indicated that the offence was an absolute
liability offence that would punish the accused who had acted reasonably and with due
diligence.

≠Imprisonment ( if imprisonment is in regulation / legislation ≠AL)


Reference re Motor Vehicle Act (BC) S 94(2) – [1985] – imprisonment for driving without a
valid license
o Facts: BC Motor Vehicle Act provided for minimum periods of imprisonment for driving
without a valid driver’s license or a suspended license, and the offence was one of
absolute liability as per section 94(2) the act; court of appeal found the section to be of no
force and effect as it was inconsistent with section 7 of the charter; that decision was
appealed

o Issue: Does section 94(2) violate of section 7

o Held: The appeal should be dismissed
o Absolute liability (in and of itself) does not offend section 7 of the charter
unless it has the potential to deprive life, liberty, or security of the person –
the combination of imprisonment and absolute liability violated section 7
(unless qualified by s 1)
 Generally, no imprisonment may be imposed for an absolute liability
offence, and an offence punishable by imprisonment cannot be an absolute
liability offence

[2] Strict Liability: where Crown proves prohibited act of a SLO BRD, negligence is
presumed and burden shifts to A

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Public welfare crimesSL Crimes

R v Wholesale Travel 1991 SCR:


o Fact: Travel agency accused of misleading advert in violation of s.60(2) competition act.
They stated that they were offering vacation packages "at wholesale prices" when in fact
they were charging more to customers than they had to pay for the vacations. Offence
carried penalty, imprisonment, and included exculpating by showing they acted
reasonably in the circumstances.
o Issue: Do regulatory schemes which impose strict liability breach ss.7 and 11(d) of the
Charter?

o Held: The Court unanimously held that offences for which the mens rea component is
negligence do not violate s. 7 of the Charter when a due diligence defence (s. 37.3(2)(a)
and (b)) is available, but that the "timely retraction" provisions of s. 37.3(2)(c) and
(d) did infringe s. 7 and could not be saved under s.1.
o This is obviously a strict liability offence for all of the reasons in the regulation.
Therefore, the Crown does not need to prove mens rea in order to get a
conviction; however, the defendant can be acquitted if they can show that they
acted reasonably in the circumstances (among the other things required for the
statutory defence).
o If the offence has a statutory defence that is similar to this requirement then it
falls under the heading of strict liability offences, and the Crown does not need to
prove mens rea for a conviction.
o Reverse Onus: The Court however was divided on whether a reversal of onus onto the
accused in s. 37.3(2) was constitutional. However, only four of the seven held that it
could not be saved under s. 1. Since the remaining 2 judges (L'Heureux-Dube and Cory)
found the reversal of onus did not violate s. 11(d), a majority was had by those that
argued a reversal of onus was constitutionally justifiable by a 5 to 4 margin

R v. Raham – [2010]– stunt driving at 51 km over limit


o Facts: Accused was 51 km over speed limit; instead of charging with speeding, officer
charged with stunt driving which was punishable by fine, imprisonment, or both; accused
argued that it was absolute liability offence violating section 7 of the charter; justice of
peace said it was strict liability and convicted accused; in appeal, judge said it was
absolute liability and acquitted; appeal by crown
o Issue: Was it a charge of strict liability or absolute liability?
o Held: Appeal allowed, acquittal set aside, new trial ordered
o Appeal judge erred in holding that stunt driving was absolute liability offence and
that due diligence was not available thereto 

o The offence was public welfare offence, and as such a strict liability offence -
an absolute liability offence cannot have imprisonment as a potential
punishment
 (and would thus be of no force and effect), but a strict liability
offence can 


Levis (City) v Tetreault 2006 : operating vehicle w/o registration, fees (recognizing defence of

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officially induced error, and summarizing the Court’s approach to classification of regulatory
offences and the due diligence defence)
o Facts: Respondent company and respondent Tetreault are charged with operating a motor
vehicle without having paid either required registration fees, or fees to renew the driver’s
license; respondent raised defence of due diligence
o Issue: Was there a defence of due diligence available and made out
o Held: It would be ‘better to return to the clear and analytical framework and
classification approach adopted in SSM’ requiring a ‘clear proof of legislative intent’
for absolute liability offences and does not ask the addition question of whether
legislature intended a due diligence defence to be available.
o Although defences can be raised in strict liability cases, the court dismissed those
defences in this case 

o The concept of due diligence is based on a citizen’s duty to take action to find out
what his obligations are; passive ignorance
 is not a valid defence – due diligence
requires an active and reasonable attempt to prevent the commission of the
prohibited act 


See Frameworks document for step by step framework on how to answer these types of
questions

EXTENSIONS OF CRIMINAL LIABILITY

9. Aiding and Abetting

It is not only the person who actually performs the actus reus (the “principal” offender) who can
be convicted of the offence. So too can those who aid (physically support) or abet (encourage)
the accused to commit the offence. Indeed, persons who aid and abet one offence can, in some
circumstances, be convicted of offences they did not intend to aid or abet, provided that offence
is under s. 21(2) an objectively foreseeable outcome of the offence they did intend to aid or abet.
In some cases such as murder or attempted murder, however, the accused must
subjectively foresee the commission of a subsequent offence being committed as a result of
carrying out an unlawful purpose under s. 21(2). This change to the application of s. 21(2)
follows from the constitutionally required subjective mens rea of the crimes of attempted
murder and murder. This underlines that those found guilty under s. 21(b) and (c) or s. 21(2)
are guilty of the same crime as the principal offender. See R. v. Logan, [1990] 2 S.C.R. 731.
- SeeCCs.21 

- R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881 

- R. v. Logan, [1990] 2 S.C.R. 731 

- R. v. Briscoe, 2010 SCC 13 (reviewed above) 

- R. v. Thatcher, [1987] 1 S.C.R. 652 

- R. v. JF, 2013 SCC 12 


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- R. v. Gauthier, 2013 SCC 32 

- Roach pp. 153-164. 


Criminal liability extends to include those who attempt but fail to complete a crime; those who
encourage or plan the commission of a crime and those who assist others to commit a crime
(1) Parties to an offence: Assist and Abet

(2) Inchoate Offences: Attempts, Counseling and Conspiracy.

Example: A person who goes beyond mere preparation to rob a bank, with intent to commit
robbery will be convicted of attempted robbery even though no robbery took place, or even
where it was impossible for it to take place

Example: A bank teller who helped the robber plan his heist, may be guilty as party to the
robbery, as the person who abets the crime

A relatively high level of MR is required for both attempts and parties, limited to those who act
with guilty intent or knowledge.

This is counterbalanced by a low level required AR for both attempts and parties.
___________________________________________________________________

1: AIDING (supporting) & ABETTING (encouraging) (Principals and Parties to Offences)

Section 21 dictates that when it is demonstrated that an individual ‘aid’s or abets’ an offence,
they are guilty of the same offence as the principle offender. It is not necessary for the Crown
to specify whether a person is guilty as the principle or the aider/ abettor in the offence.

R v Thatcher 1987 SCR:


Fact: Crown argued that accused was guilty of murder on the alternative theory that he
either killed his ex-wife or assisted others in killing her.

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R v Pickton 2010 SCR: Aid/Abet = Same punishment of Principal

Significance: SC indicated that it was not necessary for A to be the actual shooter to be
guilty of murder. Relied on Thatcher stressing that 21(1) was designed to put A/A on the
same footing as the person who actually committed the crime.

ACTUS REUS of Aiding and Abetting:


The two concepts are distinct and liability will flow from either one:

o “To aid” under s.21(1)(b) means to assist or help the actor

o “To abet” under s.21(1)(c) includes encouraging, instigating, promoting or procuring
the crime to be committed.

MENS REA of Aiding and Abetting:


To be convicted for the purpose of A/A, the accused must not only knowingly assist the
principal, but also intend to assist the principle. Thus there are 2 MR requirements:
1. intent to assist principle; and
2. knowledge of the type, but not the nature of the crime committed.

Section 21(1)(b) requires that the accused act or omit to do anything for the purpose of aiding
any person to commit an offence. The requirement that the accused act with the purpose of
aiding does not mean the accused must desire the offence be committed or even share the
exact same MR as the principle.
o For example: A person who assists in a robbery by driving the getaway will have acted
with purpose of aiding. Even though he participated only because of death threats.

R v Briscoe 2010 SCR: aiding A to lure & rape V, Willful blindnessknowledge of A’s intent
to commit
o Fact: 13 girl & friend lured into car with 5 men to be ‘taken to a party’. A drives group,
knowing X had said earlier he wanted to find someone to kill and 13 was chosen V. A
hands X pliers on request, leaves to ‘find party’ and later rejoins group to find 1 in the
group strike V. He held on to V and quieted her and stood back and watched her rape and
murder. All 5 persons were charged with aggravated assault and first degree. A and X to
be jointly tried alone.
o TJ: trial judge said accused didn’t know of L’s intention to commit each of those crimes
and acquitted; court of appeal said trial judge erred in failing to consider accused’s wilful
blindness and overturned acquittal
o Issue: What is required to find wilful blindness; was accused party to sex assault/
murder?
o Held: Convicted.
o MR for section 21(1)(b) requires intent and knowledge – crown must prove that
the accused intended to assist the principal in the commission of the offence (it
isn’t required that the accused desired that the offences be successfully
committed); in order to have the intent to assist in the commission of the
offence, the aider must know that he principal intends to commit the crime
(though not precisely how)


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o MR established  he knew that the main perpetrator intended to commit the
crimes

o The aider doesn’t have to have the same mens rea as the actual killer, but that he
had the knowledge of the killer’s intentions and acted with the intention to
assist the killer, he can said to have aided and abetted
o Ratio: ‘wilful blindness is an active process of suppressing a suspicion; it substitutes
for actual knowledge when knowledge is required component of MR of the offence.
o Significance: ‘wilful blindness is deliberate blindness’. From his statement to the police
‘fuck I don’t want to know”, it is clear that there was a deliberate suppression of
questioning/ suspicion

Recklessness sufficient?

R v Roach 2004 CCC:


o Significance: with respect to 21(1)(b), purpose and intent are the same, and does not
include recklessness. Thus a high level of subjective MR is necessary. Recklessness
is not a sufficient form of fault to convict a person as a party to an offence under
21(1)(b).
o Note: R v Briscoe found wilful blindness sufficient to demonstrate intent, however,
this is a much higher subjective MR, then recklessness.

Dunlop and Sylvester v R 1979: gang rape at motorcycle club, ! mere presence is not
sufficient !
o Facts: Bike gang, accused were acquitted of rape on basis that there was no evidence
that they ‘rendered aid, assistance, or encouragement’. Accused claimed they were
delivering beer. V claimed it was them.
o Held: The trial judge erred in charging with section 21(2) common intention when
there was no evidence that there was any common intention with those involved with
the gang rape of the victim
o A person is
 not guilty of aiding or abetting a rape merely because he is present
at the scene and does nothing to prevent it; one cannot be properly convicted of
aiding and abetting in the commission of acts which he does not know may be or are
intended; also, if there is no evidence of encouragement, then presence alone will
not suffice to render him liable as an aider and abettor – he is not, as a matter of law,
an accomplice
o However, prior knowledge that the crime was going to be committed, or
preventing the victim from escaping or receiving assistance, can be submitted
as evidence that presence at the scene can be equated with aiding and abetting
o This is in line with criminal law’s reluctance to penalize omissions
o Accused did not render aid, assistance, or encouragement to the rape
o Significance: mere presence at scene of crime is not sufficient, more is needed:
encouragement (abet) of P1, act which facilitate (keeping watch, enticing victim), act
which hinders interference/ escape) (aid)


R v Black 1970: present at crime AND PREVENTS V from receiving assistance is sufficient

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AR.

Doctrine of Common Intent: s.21(2)

“Ought to have known” is an OBJECTIVE TEST, however test must be subjective where its
murder, attempted, war crime to fall within Charter.

R v Logan: - A w/ others robs bank, someone pulls gun (w/o knowing) kills, objective
test ≠sufficient re Charter
o Facts: Robberies by A and others, shooting and severe injury. Accused did not shoot,
but admitted to being one of the robbers. ‘No intent to shoot and no discussion of
guns had taken place’. Judge instructed that Crown was required to establish BRD
that someone would probably shoot with intent of killing. Convicted for attempted
murder, CoA overturn and substitute armed robbery.
o Issue: Does s21(2) infringe right of life, lib, security (ss7) and to fair trial (ss11d)?
o Held: Appeal dismissed- MR for attempted murder could not, without restricting s.7,
require less than subjective foresight of accused, this is constitutionally required.
o Ratio: On charges where subjective foresight is a constitutional requirement
(murder, attempted murder), the objective component of s21(2) is not justified;
however, because of legislative purpose, the objective component could be justified
with respect to most offences.
.
Significance: if a certain minimum degree of mens rea is required in order to convict for
an offence, then that minimum degree of mens rea is also required to convict a party to
that offence

R v Berryman 1990 CCC: unwittingly delivers a bomb


o A person will not be guilty as a party to an offence regardless that he committed the AR
of assisting the commission of the offence, where he unwittingly delivers a bomb/
administers a poison; because he lacks MR.

R v. JF, 2013 SCC 12; Mother beats / kills child, father charged under criminal negligence /
failure of necessities

o Facts: 4 Yr old died in foster home (hit to head). Mother confessed to beating, pleaded g
to MS. Father (didn’t beat child) charged with MS by criminal negligence and MS by
failing to provide necessities of life. He was convicted on first, acquitted on 2nd.
o Issue: Are a conviction for manslaughter by criminal negligence and an acquittal for
manslaughter by failing to provide for the needs of a child inconsistent?
o Held: Acquitted
o Reason: Though the two counts alleged different "underlying" offences, the J.F.'s guilt
(MR) depended on exactly the same failure to perform exactly the same duty: the duty to
protect his foster child from foreseeable harm from his spouse.
o [1] Failure to provide the necessaries of life required proof of a marked
departure from the conduct of a reasonably prudent parent in circumstances
where it was objectively foreseeable that the omission would lead to a risk of
danger to M's life, or a risk of permanent endangerment to his health.

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o [2] Criminal negligence required proof that the same omission represented a
marked and substantial departure from the conduct of a reasonably prudent
parent in circumstances where the accused either recognized and ran an obvious
and serious risk to M's life or gave no thought to that risk.
o The verdicts signify that a lesser degree of fault was not established whereas a greater
degree of fault was proven beyond a reasonable doubt.
o Ratio: Generally, crimes which have an external element of negligence require a
standard of a marked departure from the standard of care; manslaughter by criminal
negligence requires a standard of marked and substantial departure from the
standard of care.

R v. Gauthier, 2013 SCC 32 - Mens rea or intention - Abandonment of intention


o Facts: The accused and her husband had a murder/suicide pact to kill their three
children. The husband prepared and served the drinks. The accused called 911 after
ingesting the drug and having her wrist slit by her husband. She survived. Others
died. The accused was charged with three counts of first degree murder as a party
under s. 21(1) of the Criminal Code (aider and abettor by supplying the fatal drug).
She relied on the defence of abandonment of intent. The trial judge refused to put the
abandonment defence to the jury, questioning the availability of the defence to a party
under s. 21(1).
o Held: However, since the defence lacked an air of reality, the trial judge correctly did
not leave the defence with the jury
o The defence of abandonment of intention can be raised:
i. That there was an intention to abandon or withdraw from the unlawful
purpose;

ii. That there was timely communication of this abandonment or withdrawal
from the person in question to those who wished to continue;

iii. That the communication served notice upon those who wished to continue;
and

iv. That the accused took, in a manner proportional to his or her participation,
reasonable steps to neutralize or otherwise cancel out the effects of his or
her participation or to prevent the commission of the offence.
o G’s evidence that she communicated her withdrawal from the deadly plan and that
her communication was timely and unequivocal is insufficient. She therefore had to
do more either to neutralize the effects of her participation or to prevent the
commission of the offence.
o Per Fish J. (dissenting): The defence of abandonment does not require that the
accused take steps to neutralize prior participation in the criminal enterprise or to
prevent the commission of the offence.

10. Counseling 


An accused can be convicted of counselling offences, whether or not the offences counselled are
actually committed. If the offences counselled are committed, CC. s. 22 operates and the person

104
is found guilty and punished as if he had committed the completed offence. If the offence is not
committed, CC. s. 464 operates and the person is found guilty of a separate offence that is
punished as if she had been guilty of attempting the completed crime. Note that counselling is
defined in s. 22(3) of the Criminal Code. 

- R. v. Hamilton, [2005] 2 S.C.R. 432 

- Roach pp. 147-153. 

2: INCHOATE OFFENCES
2.1 Counseling
A person can be convicted of counseling offences, whether or not the offences
counseled are actually committed. If the offences counseled are committed, s. 22
operates; If they are not committed s.464 operates

Actus Reus of Counseling a Crime not committed:
 It does not matter whether the
person counseled acts on the solicitation or has any intention of doing so. Example: A is
guilty of counseling an undercover officer to commit a crime, even if officer so solicited
would never commit the offence.

R v Hamilton 2005 SCR: sold software to generate credit card numbers

AR will be established

Significance: where the material or statement made or transmitted by A actively induce


or advocate—and do not merely describe—the commission of an offence.

R v Gonzague 1983 CCC:

Significance: A will be guilty of counseling, even if person solicited immediately rejects


going through with the offence. Mens Rea of Counselling a Crime not committed:
 MR

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is not spelled out in s.464, but it will be important to require:

(1) subjectiveknowledgeofthecrimecounseled;and
 (2) an actual intent that crime be


performed.
 R v Hamilton 2005 SCRE: software to steal, MR – knew or aware of risk
likely to commit crime

Facts: Accused sent teaser email for software that would enable the purchaser to general
“valid” credit card numbers; he made several sales; he was charged with counselling
offences that were not committed (including fraud); trial judge accepted evidence that
accused was not actually aware of the software’s workings and acquitted because the
mens rea wasn’t proven; court of appeal upheld

Issues: Did the accused have the mens rea for counselling fraud

Held: MR of counseling an offence included: (1) intent to commit (2) knowingly


counseling crime while aware of an unjustified risk that offence is likely to be committed
as a result of accused’s conduct.

o The actus reus of counselling is the deliberate encouragement or inducement of


commission of an offence – regardless of whether the person being counselled is actually
persuaded to commit the offence

The mens rea consists of nothing less than an accompanying intent (or disregard) of the
risk of the offence counselled

being committed – that he either knew it would be committed, or was aware of the
unjustified risk that it was likely to be

committed

o The mens rea of counselling is generally made out from the actus reus of counselling

44 44

o It is not just that the accused know that there is a risk of the offence being committed,

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but that there is a risk of the offence is likely to be committed (which is a higher standard
than reckless awareness of the possibility that an offence might be committed)

Note: this should not be interpreted as encompassing recklessness as sufficient fault for
the offence of counseling a crime not committed.

Significance: stressed the requirement of intent as oppose to lesser forms of subjective


MR, such a recklessness

. This is related to the fact that the offences of counseling is a crime that is no actually
committed; thus should require intent to

commit complete offence.

S 23.1
Impossibility would not be a defence to a crime of counseling that is not committed.
Parliament provides this pursuant to 23.1

Impossibility 
(1) For greater certainty, s.21 to 23 apply in respect of an accused notwithstanding the fact that the perso
accused

aids or abets, counsels or procures or received, comforts or assisted cannot be convicted of an offence.

Counselling a Crime that is Committed


Where crime is committed, person who counsels is subject to the same punishments as if
he actually committed the offence, notwithstanding that the offence was committed in a
way different from that which was counseled.

o A counsels a person to kill another with a bomb would still be guilty of murder if the
person counseled used a gun instead.

Actus Reus

Mens Rea:

The liability is expanded in 22(2) where A ‘knew or ought to have known’ was likely to
be committed in consequence of.

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: Remains the act of procuring/ soliciting/ inciting crime. In addition, crime must be
committed by the person counseled. The crime need not be committed in the same way as
counseled, however it must be a crime that was reasonably foreseeable from the
counseling.

Intentional counseling of a criminal offence under 22(1). As it would not be fair to hold
that an accused is a party to an offence for comments that were not intended to solicit or
incite a crime, but which had that effect. Under 22(2) ‘knew or ought to have known’,
objective foreseeability would be a constitutional sufficient fault element for most crime,
except murder, attempt and was crime.

11. Attempts 


As the counseling offence in CC. s. 464 illustrates, not all crimes need to be complete before an
offence arises. There is (1) the discrete offence under s. 464 of counselling a crime that is not
committed, (2) the offence of conspiracy under s. 465 in which the agreement to commit a crime
is a crime, and (3) there is liability for attempting to commit an offence under s. 24 of the 

Criminal Code. Ancio shows the relevant mens rea for attempts, and Deutsch is instructive on
when the attempt proceeds far enough to constitute a crime. You should be aware that the fact
that an offence is legally impossible in the factual circumstances is no defence to an attempt
charge, but it is not an offence to try to commit an act you believe is an offence, when it is not
actually an offence. Dery exposes the limits of piggy-backing incomplete forms of liability.
- See CC ss. 463, 465, 660 

- R. v. Ancio, [1984] 1 S.C.R. 225 

- R. v. Deutsch, [1986] 2 S.C.R. 2 

- R. v. Déry, 2006 SCC 53 

- Roach pp. 130-147 


12. Corporate and Association Liability 


Corporations are liable for the acts of their agents for strict and absolute liability offences. Since
these kinds of offences turn on the actus reus alone, there is no need to use any legal devices to
ascribe mens rea to the corporation and so the Criminal Code corporate liability provisions do
not apply to regulatory offences. For crimes in the Criminal Code, however, the Criminal Code
sets out standards for corporate and association liability. Section 22.1 applies to objective fault or
negligence offences where an association is charged, and s. 22.2 applies to subjective mens rea
offences charged against an association. See these provisions. 

- Roach pp. 239-249

SELECT CRIMINAL DEFENCES

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Not all criminal defences are listed below. For example, s. 25 of the Criminal Code permits law
enforcement personnel to use some force to carry out their duties, and s. 40 permits the defence
of property. There are also procedural defences such as double jeopardy. Charges can be
“stayed” pursuant to s. 11 (b) and 24 of the Charter because of unreasonable delay. You are
responsible only for the select defences described below and those described in assigned cases.

13. Mental Disorder

Section 16 of the Criminal Code codifies and modifies the common law defence of insanity. To
have access to this defence the accused must establish that he has a “mental disorder” (defined in
s. 2 as a “disease of the mind” thus incorporating prior common law case law) and that it affected
him in one or both of the ways described in s.16 (1). R. v. Cooper provides a definition of mental
disorder, although it has been modified by R. v. Parks (discussed below). Cooper also stresses
the significance of the concept of “appreciates” while R. v. Kjeldson describes how the
defence works for sociopathic or psychopathic offenders. R. v. Oommen edifies us about the
meaning of “wrong.”
- R. v. Cooper, [1980] 1 S.C.R. 1149 

- R. v. Kjeldson, [1981] 2 S.C.R. 617 

- R. v. Oommen, [1994] 2 S.C.R. 507 

- Roach pp. 294-309 


iv. 14. Automatism and Involuntary Acts “Negativing” the Actus Reus 
 As indicated above, the
accused does not satisfy the actus reus requirement unless her act is willed. Some courts
have acquitted individuals who reflexively strike out, using the specious reasoning that
their physical act was not willed, but the legitimacy of this reasoning is questionable. A
more sophisticated application of the voluntariness concept was employed in R. v.
Swaby. 
 It is the “voluntariness” concept that explains the defence of automatism,
which operates on the theory that the accused’s physical motions were not culpable
where they are not voluntary or thought-directed or conscious, as in the sleep-walking
case of R. v. Parks. Please note that automatism will not realistically operate in any case
where the accused appears conscious of his conduct – it is reserved to those unusual cases
where there appears to be some disconnect between the actions of the accused and his
conscious will. The result of the Parks decision was controversial enough that the
Supreme Court of Canada took procedural steps to cut the defence back in R. v. Stone.

 Note that “automatism” is divided into two categories, “mental disorder automatism”
and “non- mental disorder) automatism.” Where a court finds “mental disorder
automatism” the real defence it is applying is “mental disorder” under s. 16, since those
who act in a state of automatism because of a disease of the mind will also qualify under
the other parts of the s. 16 defence: namely being unable to appreciate the nature and
quality of their acts or not having the capacity to understand that the act is wrong. If the
defence that applies is “non-mental disorder automatism,” (for example, a person who is
unconscious due to a blow to the head, but whose body performs some action

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nonetheless) a complete acquittal is appropriate, on the basis that the elements of the
offence have not been proven. Stone and now Luedecke have stacked the deck against
this kind of defence succeeding even though it succeeded in the older case of Parks. 

- R. v. Swaby, [2001] O.J. No. 2390 (Ont. C.A.) 

- R. v. Parks, [1992] 2 S.C.R. 871 

- R. v. Stone, [1999] 2 S.C.R. 290 

- R. v. Fontaine, [2004] 1 S.C.R. 702 

- R. v. Luedecke, 2008 ONCA 716 

- Roach pp. 309-320 

15. Simple Intoxication
Intoxication does not operate as a justification or excuse for criminal conduct. This so-called
defence of intoxication (simple intoxication) operates only if proof of the intoxication helps
leave the judge or jury in reasonable doubt over whether the accused formed the mens rea of an
offence classified by the courts as a “specific intent” offence that requires the accused to do an
act for an ulterior purpose. Traditionally intoxication has not been a defence for “general intent”
offences, defined as offences that simply require the doing of an act without an ulterior purpose.
In R. v. George, the Supreme Court classified robbery as a specific intent offence that allows a
defence of simple intoxication but found that the included offence of assault was a general intent
offence that did not allow the defence. More recently, the Court in R. v. Tatton elaborated on the
distinction between specific and general intent offences. Please note that in Canada, the inquiry
for the ordinary intoxication defence is no longer into “capacity to form the intent” as it was in
common law England – the defence applies if intoxication in fact prevents the formation of the
specific intent required by the relevant section.
v. - The Queen v. George, [1960] S.C.R. 871 

vi. - R. v. Tatton, 2015 SCC 33 

vii. - R. v. Robinson, [1996] 1 S.C.R. 683 

viii. - Roach pp. 252-261 
 16. Extreme Intoxication 
 In R. v. Daviault the Supreme
Court held that extreme intoxication akin to automatism could provide a defence to even
general intent offences because it would undermine the voluntariness of the act and it
would be unconstitutional to substitute the actus reus and mens rea of becoming
intoxicated for the actus reus and mens rea of the offence. The Court indicated that the
defence would be rare and would have to be established by the accused with expert
evidence and established on a balance of probabilities but that it could be applied with
respect to general intent offences such as assault and sexual assault. The theory behind
the defence is that a person can become intoxicated enough that his mind may cease to
operate sufficiently to make conscious choices relating to his actions. Scientifically, the
premise that this can happen is controversial; nonetheless Daviault recognized that if this
were to occur the Charter would require an acquittal since voluntariness is a principle of
fundamental justice. Daviault was so controversial that Parliament immediately enacted s.
33.1 of the Criminal Code to eradicate the defence in sexual offence and violence cases.
This means that, subject to Charter challenge extreme intoxication can only be used for

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offences that do not involve an assault or other interference or threat of interference with
the bodily integrity of another person. Be aware that nothing in s. 33.1 abolishes the
defence of simple intoxication – it limits only the defence of extreme intoxication. Also
be aware that Canadian courts are split on the constitutionality of s. 33.1. The deeming of
self-induced intoxication in s. 33.1(2) as a sufficient level of fault for offences such as
assault would seem to violate both ss.7 and 11(d) of the Charter as interpreted in R. v.
Daviault but the restrictions on the s. 33.1 defence is s. 33.1(3) might help the state justify
any violation as reasonable and proportionate. The Supreme Court seemed to assume that
s. 33.1 could be validly applied in R. v. Bouchard-Lebrun at least in cases where an 

Page 18

accused acted involuntarily because of a combination of self-induced induced intoxication and


mental disorder.
- R. v. Daviault, [1994] 3 S.C.R. 63 

- R. v. Bouchard-Lebrun, 2011 SCC 58 

- CC s. 33.1 

- Roach pp. 261-283 
 17. Defence of the Person 
 The self-defence provisions
in the Criminal Code were amended in March of 2013, to replace defences which were
widely seen as excessively technical and badly drafted. The new provisions are discussed
in Roach, pp. 332-349. The primary difference in approach between the old and new
provisions is that some factors which were essential requirements under the old law are
now merely factors to take into account and weighed in the balance under the new law:
see the discussion in R v Cormier. In addition, R. v. Lavallee, [1990] 1 SCR 852
discusses the concept of "reasonable belief" in the context of self-defence, and should
still be applicable to the new provision. 

11. - R. v. Lavallee, [1990] 1 S.C.R. 852 

12. - R. v. Cormier, 2017 NBCA 10 

13. - Roach pp. 332-349 
 18. Necessity 
 The defence of necessity permits
the conduct of the accused to be excused where its elements are met. The defence is
heavily circumscribed. 

- R. v. Latimer, [2001] 1 S.C.R. 3 

- Roach pp. 361-370 
 19. Duress 
 The defence of duress is available under
section 17 of the Criminal Code and at common law. Section 17 identifies a limited
defence, but the common law and Charter have been used to extend its application so that
now the main difference between the s. 17 and common law defence is that the former
applies to those who have actually committed the offence (as opposed to having being

111
parties under ss. 21(1)(b) or (c) or 21(2) or 22) and s. 17 contains a long list of crimes
that are (subject to Charter challenge) categorically excluded from the defence. There is
currently disagreement among courts of appeal as to whether duress can be pleaded as a
defence to murder. 

Page 19

- R. v. Ryan, 2013 SCC 3 



- R. v. Aravena, 2015 ONCA 250 

- R. v. Willis, 2016 MBCA 113 

- Roach pp. 370- 382 
 20. Provocation 

The defence of provocation, set out in s. 232, applies solely to the offence of murder. It is a
partial defence, reducing a conviction to manslaughter where its elements are met. Note that the
provocation defence was amended in 2015 to limit the notion of provocation to “conduct of the
victim that would constitute an indictable offence under this Act that is punishable by five or
more years of imprisonment”.
This amendment restricts the provocation defence beyond the traditional requirements of being
an act sufficient “to deprive an ordinary person of self-control” and have caused the accused
subjectively to have been provoked. This would include acts such as assault under s. 265
(provided the other requirements of provocation are made out) but raises the question of why an
accused would rely on the partial defence of provocation if the full defence of self defence was
available.
- R. v. Tran, [2010] 3 S.C.R. 350 

- Roach pp. 411-433 (the new restriction on provocation is not discussed in this
text 
 but an addendum discussing them with specific examples of offences included and
not included in the new restriction is available at
https://www.irwinlaw.com/titles/criminal-law-6e) 

on syllabus page 20

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