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Criminal Law (Cameron), 2013-2014 Summary

Sources of Law (Frey v. Fedoruk; R v. Samir).......................................................................................................2
The Presumption of Innocence (Woolmington v. D.P.P; R. v. Oakes)................................................................2
Reasonable Doubt (R. v. Lifchus; R. v. Starr)...2
Vagueness (R. v. Nova Scotia Pharmaceutical Society).........................................................................................2
Actus Reus: General (R. v. Hutt; R v. Grilo; R. v. Lohnes; R. v. Davis)..2
Actus Reus: Voluntariness (R. v. Lucki; R. v. Wolfe; R. v. Makin; Ryan v. The Queen)...3
Actus Reus: Omissions (Fagan v. Commissioner; R. v. Miller; Moore v. The Queen; Kilbride v. Lake)....3
Actus Reus: Causation (R. v. Smithers; R. v. Shanks; R. v. Harbottle; R. v. Nette; R. v. Smith; R. v. Maybin;
R. v. JSR).4
Actus Reus: Consent (R. v. Chase; R. v. V (K.B); R. v. Jobidon; R. v. JA; R. v. Currier; R. v. Mabior)....5
Mens Rea: General (R. v. Sault Ste. Marie; Motor Vehicle Reference)...5
Mens Rea: Subjective (R. v. Buzzanga and Durocher; R. v. Docherty; R. v. Hinchey)...6
Mens Rea: Objective/Mixed (R. v. Barron; R. v. Nurse; R. v. Buttar).................................6
Constitutionalization of Mens Rea (R. v. Vaillancourt; R. v. Martineau; R. v. DeSousa; R. v. Creighton;
R. v. Hundal; R. v. Beatty; R. v. Roy; R. v. Droste; R. v. Aalders; R. v. Simpson; R. v. Cooper;
R v. Shand; R. v. LB; R. v. Briscoe; R. v. Rochon; R. v. Tutton)..6
Mens Rea: Mistake of Fact (R. v. Pappajohn; R. v. Ewanchuk)..8
Defences: Mental Disorders (MNaghtens Case; Cooper v. The Queen; R. v. Abbey; R. v. Chaulk; R. v.
Oommen).............8
Defences: Automatism (R. v. Rabey; R. v. Parks; R. v. Stone; R. v. Luedecke)..9
Defences: Intoxication (R. v. Leary; R. v. Bernard; R. Daviault).....9
Defences: Self-defence (R. v. Lavaelee; R. v. Cinous).10
Defences: Necessity (Morgentaler v. The Queen; R. v. Perka; R. v. Latimer).10
Defences: Duress (Criminal Code, s. 17; R. v. Hibbert; R. v. Ruzic; R. v. Ryan)...10
Defences: Provocation (R. v. Hill; R. v. Thibert; R. v. Tran)..11

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Statute law (Criminal Code) -> Common Law (judge-made law). Common law follows the statute law. If there is statutory law that is on point, the judges are
obligated to follow, interpret, and apply the statute law.
Basic Principles: The Crown has the burden of proving beyond a reasonable doubt every element the Criminal Code provision. 1. Actus reus (The commission
of a prohibited act, Causation: X caused the necessary consequence, Voluntariness of committing act). 2. Mens rea (blameworthy intent/guilty mind, every
element of AR must have a minimal MR, MR can be subjective (what X did think) or objective (what X should have thought), You are only held for crimes
which you are morally blameworthy (i.e. had some state of mind doing)). 3. Defenses (X is not required to defend himself, but he can introduce defenses, X
only needs to raise a reasonable doubt for acquittal).
CASE / SIGNIFICANCE
Frey v. Fedoruk (SCC, 1950)
Common law offences (no more as
of 1953)

FACTS /RATIO
P was arrested by Ds (police + Fedoruk) for peeping tommery, under the provision of disturbance of the peace. P
is suing D because peeping tommery isnt a crime. Judgment for P: false imprisonment as peeping tom is not an
offense then.
No common law offences any longer; offences must be in Criminal Code (exception of contempt) or other
criminal law statutes (like drug legislation act/ firearms act).

R v. Samir (1994)

Jerk following woman from place to place, but 10 minutes ruled not persistent enough by statute. No offence, D
not guilty. Every element of a provision must be satisfied.

Woolmington v. D.P.P. (UK H.L,

1935)
Presumption of innocence in
common law (Viscount Sankeys
golden thread that holds criminal
law together)
R. v. Oakes (SCC, 1986)
Oakes test for Charter S.1
Protection of presumption of
innocence in Charter

Woolmington shot his wife, claims that it was an accident. Original trial judge makes presumption of malice (MR
presumed), court convicted him of murder because he couldnt prove it was an accident. H.L: Crown must prove
both AR and MR; law presumes innocence. Establishes the presumption of innocence as a common law
principle (exceptions of defense of insanity and statutory exception).

S.8 of Narcotics Control Act provides for a reverse onus in possession cases requiring defendant to disprove
trafficking. X is appealing as Charter s. 11(d) provides presumption of innocence. SCC (Dickson) ruled in favour of
X, finding that this reverse onus clause was unconstitutional as it failed rational connection test as you cant infer
intent to traffic based on small possession.
If theres a violation of a Charter provision, you apply the Oakes Test to see if the violation is warranted by S.
1. Oakes Test (Part 1: Is objective pressing and substantial?, Part 2: Rational connection of act (to the
objective), minimal impairment (is it achieved with as little impairment of rights as possible?), proportionality
(salutary benefits vs. deleterious effects)

Presumption of innocence, unless proven guilty beyond a reasonable doubt. Burden of proof is on the Crown, except for defences, which are for the Defence to
prove on a balance of probabilities. (Woolmington, Oakes). Any infringement on the presumption of innocence must go through a Charter s. 1 analysis (Oakes
Test).
R v. Lifchus (SCC, 1998)
Trial judge said that the words, reasonable doubt, were ordinary, everyday words. However, in fact they have more
Reasonable doubt standard (the
significance. Case was appealed, appeal granted on basis of mistrial. Cory J. suggests a model jury charge. Says
silver thread according to J.
judge needs to explain to jury reasonable doubt standard, give legal context on it, says not an everyday concept.
Cory)
R v. Starr (SCC, 2000)
Trial judge told jury that you can convict if you still have less than absolute certainty, but he didnt say how much less.
Reasonable doubt standard
Thus instructions could have been construed as just the probability standard. Appeal granted by SCC. Reasonable
doubt is closer to absolute certainty (100%) than to balance of probabilities (50%). Standard brought much
closer to absolute certainty by Iacobucci.
R. v. Nova Scotia
Gonthier; Doctrine of vagueness- an unintelligible provision gives insufficient guidance for legal debate and is
Pharmaceutical Society (SCC,
therefore unconstitutionally vague. Two rationales: Fair notice to the citizen (people must be able to understand
1992)
the substance of a law to know what conduct is prohibited), and limitation of law enforcement discretion (preventing a
Vagueness
standardless sweep where lack of precision in the laws wording ensures that a conviction will automatically flow
from the decision to prosecute.). Generally a high threshold for striking a law down on vagueness. Courts rarely
strike down a law due to vagueness, they fix the law by narrowing its scope and creating boundaries around the
conduct.
Prostitute enters car and solicits undercover officer. Court looks up solicit to narrow provisions scope, which
Actus Reus (prohibited act, need
includes pressing or persistent. Held Hutts activity was not pressing or persistent enough to be soliciting, Spence
the act, the causation, and the
also says car not a public place. Trying to prevent nuisance factor for public and discourage prostitution. Statutory
harm)
R. v. Hutt (SCC, 1978)
interpretation tools: using the dictionary, looking at the policy purpose of provision.
Soliciting in a public place (s.
213)
R. v. Grilo (Ont. C.A., 1991)
X collected money from prostitute. They lived together; prostitute gives money to X for rent and sometimes food.
Living off of the avails of
Crown argues that S.212(1)(j) says anyone receiving money from prostitution is committing a crime by living on the
prostitution: s. 212(1)(j)
avails of prostitution. TJ said no charge. Arbour agreed saying if Crown were correct, itd be impossible to live with a
prostitute. No parasitic relationship. Court chooses a narrower, purpose-driven interpretation of a provision (i.e.
the spirit of what Parliament intended) rather than a wide literal interpretation.
R. v. Lohnes (SCC, 1992)
Causing a disturbance (s. 175 (1))
Elements of offence: 1) Particular
activities (fighting, screaming,

Dispute between neighbours escalates to obscenities. Neighbour only witness; charges Lohnes with causing a
disturbance. Found not guilty. X didnt cause what SCC (McLachlin) defines as a public disturbance.
Test is that disturbance has to be overtly or externally manifested (for it to fit the Code of S175 (1)) and has to
be an interference of the ordinary and customary use of the premises by the public. Third element is that the

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shouting, swearing). 2) Causing a
disturbance (in public place)

disturbance must be one that could have reasonably been foreseen in the time and circumstances of the place.

R. v. Davis (SCC, 1999) S.346

Photographer-con takes nude photos of girls, blackmails them into sex. Issue: Does the offence of extortion include
extortion, Interpretation giving
extortion for sexual favours? Lamer C.J. says yes, extortion about an interference with free choice (purpose of
way to creating a new offence
provision tool). Interprets anything in statute broadly as sexual favours (dictionary tool). Expands the law here with
(sexual extortion)
this interpretation.
Conclusion, Techniques of Statutory Interpretation- Purpose and Rationale: the purpose that the Parliament had in mind for the provision. (Who is it
supposed to protect? What is the underlying objective? What is the harm that the provision is seeking to criminalize?) Text: Look at the text of the Crim Code
provision: the specific words used. (Look at the definitions of the terms used. Theres a glossary at the beginning of the Crim Code . If the terms arent there,
then we go to the Dictionary (English and French).) Context in Code: the headings, the surrounding provisions, of the offence etc. (Used as an aid in
statutory construction only (Davis, Lohnes)) Legislative History: If the legislative history supports the decision, then the Court would follow that. (This is not
determinative, though (Davis).) Policy Discussion (What are the repercussions of a particular interpretation?)
Voluntariness: Individuals are only held responsible for their deliberate voluntary actions. In a case where an action is involuntary, you are not held
criminally responsible. If the act is involuntary, you did not commit the actus reus. But there is also a link to the concept of mens rea. In a case where you
commit an act involuntarily, it means you didnt intend to commit the act.
R. v. Lucki [1955] 17 W.W.R.
446 (Sask. Pol. Ct.)
Voluntariness

In icy conditions, Lucki ended up on the wrong side of the road and collided with an oncoming car. Was an
involuntary act as road conditions forced him to move over. Found not guilty of violating Vehicles Act, there is no
AR. A person is not held liable for involuntary conduct.

R. v. Wolfe [1975] 20 C.C.C.

(2d) 382 (Ont. C.A.)
Voluntariness

The complainant punched the appellant (bar owner Wolfe), who then turned quickly and hit the complainant on the
head with the telephone receiver. Wolfe charged with assault, but found not guilty as the receiver incident was
characterized as a reflex action. When the action due to reflexes in similar circumstances, the criminal act is
involuntary and the defendant is therefore not liable.

R. v. Makin [1995] BCJ No 2070

Voluntariness

X walking when Makin randomly punched him. Makin claimed reflex because he had feeling of terror, said X had
Jack Nicholson eyes. Court found Makin guilty of assault. Used objective test to find no rational basis for the reflex.
When determining if a reflex to deny an actus reus, an objective test is used to see if there was a rational basis
for it.
Ryan v. The Queen [1967] 40
The accused entered a service station where he loaded a gun and did not put the safety catch. The attendant made a
A.L.J.R. 488 (Aus. H.C.)
sudden movement and Ryans gun goes off involuntarily killing the attendant. Found guilty of homicide. When
Voluntariness
you put yourself in a situation where it is probable an offense may occur, the result is voluntary, even if
immediate response.
Omissions: Inaction doesnt usually attract criminal activity because a)Failure of act is morally ambiguous. You dont really know what a persons intention
is by being inert. And b)The law is very reluctant to impose duties to act (i.e. theres no duty to rescue). Exceptions: negligence. Omissions will generally
only form part of the actus reus when a legal duty to act is set out in a statute or CC provision. Two AR theories that get around omissions: Continuing
Act Theory (Fagan): the act is only complete once its no longer a threat to victim. Duty theory (Miller): Once X realizes that his action caused a train of
events that lead to dangerous consequences, X has a duty to try and diminish those consequences.
Fagan v. Commissioner of
Metropolitan Police (UK C.A., 1969)
Assault-Omissions (Canadian
conviction approach interpreting
away omission)
Conviction using a continued act
method

Officer tells man to pull over at the curb. Man runs over officers foot; officer tells him to get off; engine stops;
asks again, man pauses, then turns car on again. Found guilty of assault. Initial act of driving onto foot was AR,
but MR not present. Leaving car on foot was MR, but not AR present. Court classifies cars operation as a
continuous action, such that man adopted the mens rea and committed an act of assault. Actus reus and
mens rea have to happen at the same time, but they dont have to begin at the same time. The mens rea can be
superimposed on a continuing actus reus. Omission transformed into an act to satisfy AR element. Battery is
unlawful use of force, while assault is an act which causes apprehension of imminent force being applied (s.265
of Criminal Code)

R. v. Miller (UK H.L., 1983)

Omissions (UK conviction approach
close to creating a common law
offence)

Miller lights cigarette, falls asleep. Wakes to find mattress on fire, but does nothing, goes into next room, and
falls asleep again. Wakes up when police and firemen arrive. Didnt realize he started fire initially, but realizing
he did, did nothing about it; guilty of arson by negligence, as he had a duty to take reasonable steps to extinguish
fire or call fire dept. Lord Diplock gives Duty Theory: X commits an act that unknowingly sets in motion a
course of events leading to harmful consequences, he becomes aware of them, and then has a duty to take
action to diminish them. MR comes after the fact here in form of recklessness. An exceptional case, though,
cant apply specific arson case to a general rule/principle.
Officer sees X cycling through a red light. Officer tells X to pull over, X refuses to give name. Motor Vehicle Act
requires identification, doesnt apply to bike. X charged with S.129, obstructing an officer from performing
duties. Found guilty. Spence says Xs failure to identify himself constituted an obstruction of the officers
duties. When offence spotted, officer has duty to identify, so failure to self-identify in these circumstances is
obstruction (reciprocal duty imposed on accused to identify). Dickson (dissent): General principles of
presumption of innocence and privilege against self-incrimination. Statutory duty as well: No offence for
omission unless a specific legal duty exists. Officer had power to arrest for traffic violation, so not obstructing
justice. Citizens have right to remain silent unless obligated by statute. Cant make up a duty in a statute if you
cant find it. Doesnt make sense to have to identify yourself given enduring right to remain silent.

Moore v. The Queen (SCC, 1979)****

Obstruction-Omissions: obligation to
identify self to an officer (right to
remain silent)

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Appellant parked car with necessary warrant of fitness stuck to windshield. When he came back, he received a
ticket for not having the warrant of fitness. Found not guilty. Cannot be made criminally responsible for an
act or omission unless some other course open to him. Otherwise, it is an involuntary or unconscious
action, which cannot be attributed to the accused. Appellant made no choice to have car on streets without it,
prohibited event was involuntary. It was also the result of an extraneous cause (dont know where it went) and
causation absent as well in AR (need the act, causation, harm).
Homicide - s. 222(1): Causing the death of a human being, either culpable homicide S.222 (4) (categories below) or non-culpable S.222(3) (not an offence). 3
types of culpable homicide: Murder (1st or 2nd degree-S.231 (1)), Manslaughter (S.234, S.220, S.222 (5) a-d), Infanticide (S.233). Murder 1 (s.231 (2-6.1)):
Planned and deliberate, premeditated (2), Predicated offense which results in a death (hijacking, sexual assault, kidnapping) (5) 25 years without parole
mandatory minimum, example is Harbottle. Murder 2 (s.231 (7)): All murder that isnt 1st degree is 2nd degree. S.229 and S.230 for definitions, but S.230
been crossed out over time. 10 year mandatory minimum without parole, example is Nette. Manslaughter (S.234): Any homicide that is not murder or
infanticide. Either unlawful act manslaughter (UAM). Involves unlawful act that leads to a death, example is Smithers, or criminal negligence causing death
(CND), where consequence attracts charge. No mandatory minimum, sentencing discretion for judges. Causation: Causation is an element of the actus reus
(did the accused cause the act?). Not purely a factual question, legal definition imports a concept of blameworthiness. Smithers low threshold, Harbottle high,
Nette in middle.
Kilbride v. Lake [1962] N.Z.L.R. 590
(S.C.) Omissions

R. v. Smithers (SCC, 1978)

Unlawful act manslaughter
Smithers standard of causation

R. v. Shanks (Ont. C.A., 1996)

Unlawful act manslaughter
Application of Smithers
Thin skull rule (R. v. Blaue:
defendants must take their victims
as they find them, UK 1975)
R. v. Harbottle (SCC, 1993)
First-degree murder (S.231(5))
Harbottle first-degree murder causation
standard
R. v. Nette (SCC, 2001)****
New Smithers-Nette standard
applicable to all homicides
Harbottle only for 231(5) offences

R. v. Smith (UK Crts.-Mart. App. Ct.

1959)
Intervening cause (only used for UK).

R. v. Maybin (2012 SCC)

Intervening cause (Used in Canada).

R. v. JSR (2008 ONCA)

Causation and joint endeavour
Can use S. 229(c) as it starts out with
an unlawful act and involves an
element of dangerousness that the
accused knows is likely to cause
death.

Hockey fight; Smithers kicked boy in stomach, causing vomiting and aspiration (choking) owing to
malfunctioning epiglottis. Aspiration causes death. Found guilty of manslaughter. Dickson J.s Smithers
test: An action (the kick) has to be at least a contributing cause beyond the de minimis range to be
deemed the cause of a prohibited result in criminal law, a lower threshold of causation then was required in the
Smith test. Thin skull rule may also apply in criminal as it does in tort law. Smithers is held responsible as
standard of causation is satisfied under test and it is permissible under theory of MR for manslaughter as he is
blameworthy.
Shanks yells at man over cat injury, provoking fight. Wife warns about past strokes as man grabs shoes.
Shanks shoves man to ground. Later that evening, heart attack kills him. Medical evidence: man might have
died anyway given running to get shoes. Found guilty. Held: unlawful act the proximate cost of death,
beyond the de minimus range (Smithers standard); reduced mansl. sentence. Example of thin skull
principle for causation and homicide. Shows how low the threshold of causation can be.
Harbottle and friend confined girl, friend rapes/strangles her to death while Harbottle held legs. Found guilty of
Murder 1 while doing a predicate offense (sexual assault). Cory says causation standard for 231 (5) first degree
murder is that it has to be a substantial and integral cause of death. Role in causing death must satisfy that
standard. Stronger causation needed for weight of M1 offence, sentence. Standard only in use for predicate
1st degree murder (231 (5)).
95 y.o. woman hog-tied while house robbed. Left tied, so asphyxiated. Accused found guilty on second-degree
murder. Arbour affirms Smithers as the causation standard for all homicides; but standard should be
restated as significant contributing cause from not insignificant. Becomes Smithers-Nette test.
Harbottle now applies only to 231(5) first-degree murder offences. Heureux-Dube dissent says this is a
drastic change in substance of test, major difference between significant and not insignificant, raises the
causation standard.
Bunker stabbing by bayonet. Had blood transfusion been available, victim would have lived. Bad/slow
treatment leads to death. Accused found guilty, intervening causes did not overwhelm his actions. If the
original wound is still an operating and substantial cause, then it can be said to be the cause of death. To
break the chain of causation, the new intervening cause has to completely overrule Xs act. Has to be so
overwhelming that Xs act becomes inconsequential.
Brophy gets into fight with Maybin brothers, bouncer comes in and punches him, he dies. Both Maybins and
bouncer charged with manslaughter. Bouncer stays acquitted on appeal, the brothers dont. SCC agreed that it
was open to the TJ to find that the Maybin brothers caused the death, should have been able to foresee the
intervention, their causal role is maintained Karakatsanis: There are 2 factors to consider when assessing
break in chain of causation: 1. Was intervention reasonably foreseeable? (objective standard) 2. Was it an
independent act (setting in which another cause operates, time lapse/context/nature of intervention)?
Smithers-Nette test still prevails overall, these are just factors to consider with intervening cause.
JSR is shooting two. None of JSRs shots hit Creba, no evidence they had any causal connection with shot that
killed Creba. Enough evidence to send JSR to trial for shooting her? ONCA rules JSR can stand trial for murder.
Use joint endeavour theory: In circumstances in which indisputable reckless disregard on both sides, can
hold both sides responsible regardless of which two fired the shot that killed victim. A non-causal party
can be held to legally cause fatal injuries to a third party, which occur in the course of a joint endeavor
between the accused and others in inherently dangerous activity. Both parties will be guilty for the same offence
(JSR).

Assault, S. 265 (the application of physical force without consent) force is simply non-consensual, unconsented physical contact, no requirement of harm,
5 years maximum. Assault, s.267 (with bodily harm or weapon)-10 years maximum, group S.269 with it. Assault, S.268 (aggravated assaultwounds/maims/endangering of life)-14 years maximum. Sexual assault, S.271 (a parallel scheme to assault with sexual element and longer maximum
sentences; no definition in criminal code, it fell to the courts)-10 years maximum. Sexual assault, s. 272 (with bodily harm/sexual assault with a weapon)14 years maximum. Aggravated sexual assault, s. 273-life sentence maximum. Limitations to consent s. 265(3): 1) Application of force; 2) threats of
force; 3) fraud; 4) exercise of authority (Jobidon, Currier)

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R. v. Chase (SCC, 1987)
Sexual assault test (defines the act)

R. v. V. (K.B.) (Ont. C.A.)

Sexual assault: Gratification element
not necessary in sexual assault.

R. v. Jobidon (SCC, 1991)****

Unlawful act manslaughter
Consent: limitation to consent in fistfights.
Common-law offences: reading in
an offence.
S. 265 (3)- circumstances where
consent is vitiated

R. v. JA (2011, SCR)****
Sexual assault, consent
*Cameron thinks this McLachlin
position is a little weak. Parliament
simply did not have any foresight of
this situation and simply did not
address it.
R. v. Cuerrier (1998, SCC)****
Aggravated assault (s.268(1)) and
vitiation of consent by fraud
(s.265(3)(c)).
*Significant risk of serious bodily
harm standard

Neighbour enters house, begins to grab girls breasts. Attempted to grab genitals, but did not succeed. Common
assault or sexual assault? C.A.: No genital contact, so no sexual assault. But SCC restores conviction, says that
neighbour had committed sexual assault under this criterion/objective standard. J. McIntyre suggests test:
Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a
reasonable observer? An objective test to avoid skewing sexual assaults definition to the plaintiffs or the
accuseds view of the matter fair to both parties. Examine all circumstances of the act: part of body
touched, nature of contact, situation, words and gestures, threats, intent.
Father accused of sexual assault upon son punishing him by grabbing his penis. Says he does it in retribution
for son grabbing his. Was convicted of sexual assault, appeal is held up by majority as he violated sexual
integrity of son. Osborne says (1) Sexual Assault is an act of power, aggression and control, and does not
require sexual gratification. (2) A sexual assault does not require sexuality and, indeed, may not even
involve sexuality. (3) One factor of sexual assault is that it violates the sexual integrity of the victim. Grange
(dissent): Sexual gratification intention relevant to finding sexual assault, there was none here. In all aspects but
part of body touched, assault was non-sexual. Assault, but not sexual.
H starts fight with Jobidon; they consent to going outside and Jobidon hits H on to hood of car, when he becomes
unconscious during a flurry of punches. Haggart dies. J found guilty of manslaughter, appeal dismissed.
Gonthiers Rule for consent in an assault: Consent is vitiated between adults when they intentionally apply
force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl.
Using common law to supplement the S. 265 (3) list of occasions where consent is vitiated. Gives policy reasons
why consent shouldnt be used (Social uselessness; leads to larger brawls; normalizes violence; contradicts legal
principles against fighting; deterrence).
Sopinka J. (minority): The fight should be seen as two events: consent up until unconsciousness, but once the
victim fell unconscious, he was no longer giving consent. Says cant read out consent from s. 265; creates a
offence. Betrays s. 9(a) of CC no common-law offences. And judges have differing opinions of social utility
uncertainty results. Instead, scrutinize scope of consent. Gonthier argues hes just developing defenses
(consent), that judges have right to do that.
The couple was being intimate. The complainant had consented to the accused chocking her until she was
unconscious. J.A. found guilty of sexual assault. McLachlin says no advanced consent, says that a person can
only consent to sexual activity if they are conscious throughout that activity. There needs to be ongoing
and conscious, subjective consent in mind of the complainant at the time of the sexual activity. If a
person becomes unconscious during the sexual activity, then they legally cannot consent, whether or not
they consented earlier. Says CC provisions support her. Fish in dissent says Criminal Code does not address
this situation, no reason in principle why a person couldnt consent in advance to this. Majoritys view imposes a
limitation that is not present in the statutory provisions.
Mans failure to disclose HIV status (didnt lie) to sexual partners; charged with aggravated assault. Did he
fraudulently obtain consent? SCC rules that it constituted fraud, Crowns appeal allowed. Judges diverge; LHDs test broadest; then Corys; then McLachlins. Cory (majority): 1) Dishonesty (objective test: would a
reasonable person conclude he acted dishonestly?) 2) Deprivation (Did the dishonesty result in a
significant risk of serious bodily harm?) LHeureux-Dube: 1) Dishonesty (same as Cory); 2) Inducement:
Was there deliberate inducement of consent through dishonesty? (Her concern physical integrity; has no serious
bodily harm requirement, which makes her argument vulnerable.) McLachlin: the fraud should involve
dishonesty that goes to the nature and quality of the act. It includes (a) a deception as to the sexual character of
the act; (b) deception as to the identity of the perpetrator; or (c) deception as to the presence of a STD giving rise
to serious risk or probability of infecting the complainant. The Crown must also prove that the victim subjectively
would not have consented to the act without dishonesty (inducement).

R. v. Mabior (2012, SCC)

Sexual assault, fraud/consent

The accused slept with 9 women while he had HIV. He had a low viral load, and used condoms with some of
them. They all said they would not have had sex with him had they known he had HIV. He was acquitted for the
women he used condoms with, but convictions restored for others. From Cuerrier, for fraud to vitiate consent,
there has to be a realistic possibility of transmission. That realistic possibility is only negated where there
is 1) low viral load and 2) use of condom. If neither satisfied, it would meet the Currier deprivation
standard (serious risk of bodily harm).
Mens Rea: All AR elements must have a MR (symmetry). Fault principle of MR: You can only be held responsible for actions you had in mind. (Acts are
not blameworthy unless they are accompanied by a blameworthy state of mind). MR levels for 3 types of crimes: True crimes (subjective standard, highest
threshold of MR, what did X have in mind?), Strict liability (objective standard, what should X have had in mind?), Absolute liability (no MR). Subjective
MR (the baseline/default principle) has 3 sub categories and are roughly hierarchical: Deliberate intentional acts of the accused (Buzzanga/Docherty) above
recklessness by the accused and wilful blindness by the accused. Objective MR (Barron) and Mixed Subjective/Objective (predicate offense, example
would be assault causing bodily harm, Nurse/Buttar)
Subjective mens
rea
Intent (Buzzanga,
Docherty)
evidence of
conscious
purpose, or that X

subjective
predicate,
subjective
consequence

Subjective
predicate,
objective
consequence
(Vaillancourt,

Modified
Objective
Standard
(Hundall)

Objective mens
rea
Objective
(criminal
negligenceBarron).

Absolute liability
Strict liability,
with the chance to
raise a defense
(Sault-Ste-Marie)

No mens rea required

6
foresaw
consequences

(Martineau)
Recklessness,
Willful blindness
(Briscoe)

R v. Sault Ste. Marie (SCC 1978)

Mens Rea
True crimes, strict liability (new)
and absolute liability offences
Criminal presumption of mens rea
(i.e., absolute liability only if
legislature specifies)

Motor Vehicle Reference (SCC

1985)
Made Mens rea necessary for all
offences involving prison sentences
R v. Buzzanga and Durocher (Ont.
C.A. 1980) Subj. MR
Meaning of subjective mens rea.
Insertion of wilfully leaves you with
intent, not recklessness/wilful
blindness. Wilful denotes intentional.
R. v. Docherty (SCC 1989) Subj
MR
Subjective MR nuanced example
Meaning of subjective MR

R. v. Hinchey (SCC 1996) Subj.

MR
Levels of subjective MR: full intent,
recklessness, wilful blindness
R. v. Barron (Ont. C.A. 1985) Obj
MR
Criminal negligence causing death
Standard of wanton recklessness
and disregard requires marked or
substantial departure
R. v. Nurse (Ont. C.A. 1993) Mixed
MR
Assault causing bodily harm (s.
267) two-pronged MR requirement
R. v. Buttar (B.C. C.A. 1986)
Mixed MR
Arson: Two-pronged MR for
lighter arson

Nurse and Buttar)

Objective
predicate,
objective
consequence
(DeSousa,
Creighton)
Sault Ste. Marie hired a company to dispose of its waste, but they did this inadequately, spilling into a river; city
charged with regulatory offence. New trial ordered so city can submit new due diligence defense. Dickson sets
up dichotomy between true crimes requiring both actus reus and mens rea to be proved and absoluteliability/public welfare offences requiring only actus reus (justified in deterrence, administrative
efficiency). Proposes strict-liability offences as an alternative to the severity of absolute liability over
non-true crimes: allows a due-diligence defence; defendants burden to prove having met the reasonable
standard of care (on a balance of probabilities). Absolute liability offences exist only when legislature
specifies (i.e., criminal cases presume need for some mens rea). Cites generally-held revulsion against
punishment of the morally innocent.
Early Charter case. B.C. governments Motor Vehicle Act creates an absolute liability offence for driving
without a licence (with a prison sentence possible). Ruled unconstitutional. Lamer: any absolute liability
offence depriving liberty with a prison sentence violates right to fundamental justice (which includes
mens rea) under Charter (s. 7). Paves way for criminal laws constitutionalization, makes Mens Rea a
constitutional principle under the Charter (s.7).
French-Canadian defendants disseminate satirical anti-francophone pamphlets to push for French-language
school. Charged with wilful promotion of hatred (s.281(2)). Ruled for a retrial as dont know if they foresaw
hate. Martin J.A. looks at definition of wilfully under legislation (inclusion of term excludes recklessness) to
determine MR requirement as subjective (a high level of MR). X has wilfully/intentionally done an act if they
intended the consequences of the act or they knew (foresaw) that the consequences were certain or morally
certain would happen because of their act, and did it anyway. MR is required to prove all offences unless the
section expressly states that it is not required.
Accused convicted of drunk driving; thought the car not in operating condition so unaware he was committing
an offence merely sitting behind the wheel. Facing further conviction for breaching probation order but this
requires wilfully failing or refusing to comply with the order (subjective MR with respect to committing an
offence), and he lacked awareness of committing an offence. SCC says drunk driving MR not sufficient for
parole breach MR. Wilson: A high level of subjective MR when wilfully used. Wilfully stresses intention
in relation to the achievement of a purpose. It can be contrasted with lesser forms of MR such as
negligently or even recklessly. a relatively high level of mens rea .
Accused and wife accused of fraud for her receiving $7400 but not doing any work (provincial transport
department. Three levels of subjective mens rea: Full intent, Recklessness (when accused knows of a
danger or risk and simply carries on with conduct creating that danger or risk), Wilful blindness (when
all those risks are present, but you blind yourself to them (refuse to inquire about them) and carry on
anyway).
Teenage X and friend were at the top of the stairs at a party, X gives him a slight push to get him down the stairs,
but sends him crashing down. Friend dies. TJ convicts of manslaughter, acquitted on appeal on the AR level of
criminal negligence. Say no substantial departure from a reasonable persons conduct here with little push. C.
Negligence requires A marked and substantial departure from the standard of a reasonable person
(objective standard).
Two men had intended to fire guns into air, but shot into house by mistake. Assault causing bodily harm
downgraded to assault by court. Not objectively foreseeable that firing into air would cause bodily harm to
someone inside a house. With predicate offence of assault with bodily harm (two AR), two MR
requirements: 1) Subjective MR of intent for assault; 2) Objective foresight (MR) for bodily harm.
Predicate offense= initial offense +specific consequence
X got drunk, set clothes on fire. Burned down his own house. X is acquitted of wilfully setting fire to house, but
convicted of willfully setting fire to something that is likely to cause a house fire. Court found him guilty of
intentionally burning clothes, which could foreseeably cause a house-fire. Predicate offense AR (burning
clothes) had subj. MR (recklessly) while consequences of house fire AR had objective MR (obj.
foreseeability from is likely).

Constitutionalization of MR: After Motor Vehicle (which said every AR element must have a MR-symmetry), general standard is subjective MR. But now
Court has been content to say objective foresight is satisfactory for all the criminal offenses outside of murder. When there are unintended consequences, the
criminal law will penalize those consequences pursuant to an objective standard. Post DeSousa, its always objective foresight of bodily harm in bottom right
quadrant.
R. v. Vaillancourt (SCC 1987)
Murder 2, Objective foresight of
death a constitutional minimum for
murder conviction

Vaillancourt and accomplice rob pool hall, the accomplice kills someone with a gun V thought had no bullets
and runs away. Charged with murder when weapon present during predicate offense. Court finds S.7 violation
of S.230d provision. Lamer says instead of no MR component needed to convict past predicate offense intent,
now murder requires at least obj. foresight of death. Obj. MR a constitutional minimum for murder,
although he prefers subj. Predicate offense (robbery felony-AR)-> subjective MR, Consequences(deathAR)->now objective MR

R. v. Martineau (SCC 1990)

Murder 2, Subjective foresight of
death a constitutional minimum for
murder conviction, Proportionality
principle
R. v. DeSousa (SCC 1992)
Unlawfully causing bodily harm
(S.269)
Proportionality principle
Counters what was done in Martineau

R. v. Creighton (SCC 1993)****

Unlawful Act Manslaughter (234
Objective foresight of bodily harm
the specific MR requirement
Follows standard established in
DeSousa

R. v. Hundal (SCC 1993)

Dangerous driving (249): Modified
objective test. MR can be subjective
or objective depending on offence

R. v. Beatty (SCC 2008)

Dangerous driving (249.1): Marked
departure from the objective standard
for MR of act (retains obj. foresight for
harm)
R. v. Roy (SCC 2012)
Dangerous driving (249.1),
Momentary lapse case. The manner
of driving has to be dangerous for the
AR to be satisfied. And then under the
MR, the AR can support an inference
of marked departure.
R. v. Droste (SCC 1984)
Murder 1 (S.231.2), Planned and
Deliberate, statutory transferred
intent here by Dickson (tries to
dodge it)
R. v. Aalders (SCC 1993)
Murder 1 (S.231.2),
Planned/Deliberate
R. v. Simpson (1981 Ont CA)
Murder 2 (S.229a), Attempted
Murder
Need subjective intent, not obj.
foresight
R. v. Cooper (SCC 1993)
Murder 2 (S.229aii), MR was there at
the start of choking and thats sufficient
for the AR
R. v. Shand (2011 Ont CA)
Murder 2 (S. 229c)

Trailer robbery; robbers agreed it would only be b and e, but Martineaus friend shot/killed occupants. Not
guilty of 2nd degree murder because of no subj. MR. Lamer says any murder conviction must have proof of
subjective foresight of death. Murder requires subjective MR owing to stigma and penalty. Punishment
must be proportionate to moral blameworthiness. Dube (dissent): unlawful harm intent enough; death only
needs objective MR. Predicate offense (assault felony of AR)->subjective MR, Consequences (death-AR)>now subjective MR
Fight breaks out at a party, X throws a bottle which ricochets off wall and hits victim, cutting arm. Found guilty
of unlawfully causing bodily harm. Sopinka: subjective MR not required with unlawfully causing bodily
harm; proportionality lacks gravity of murder, so MR requirements lower. Fundamental justice
satisfied by objective foresight. Subjective MR not a constitutional minimum, Objective MR sufficient for
unlawfully causing bodily harm (unlawful act/p. offense AR needs to be obj. dangerous MR, obj. foreseeable
MR for bodily harm AR). Post DeSousa, its always objective foresight of bodily harm in bottom right
quadrant.
Man injects cocaine into woman with consent, who asphyxiates and dies. Found guilty, appeal dismissed.
McLachlin: Argues you should be responsible for consequences of actions, whether foreseeable or not. MR
for manslaughter is objective foresight of bodily harm, it is now the constitutional minimum. Proposes a
more narrow objective standard with exception for capacity. Only response to objective standard is
incapacity (wins out with support of La Forest in 4-4-1 split). Lamer: Argues idea of symmetry, wants objective
foresight of death (MR) instead for death AR. Trying to bring some subjectivity into his concept of obj.
foresight.
Dump truck runs red light, striking car and killing its driver instantly. Driver held responsible for dangerous
driving. Found guilty. Cory: MR can be proven objectively or subjective depending on offence. Modified
objective test suitable for dangerous driving offence. In this test, open to the accused to show a reasonable
person would not have been aware of the risks taken (takes into account sudden disease, other frailties). More
obj. than subj. here, just regular objective with context for external circumstances. Dangerous driving AR with
modified obj. MR, bodily harm/death AR with obj. foreseeable MR.
Beattys truck crossed center line, went into oncoming traffic, killing three people. Said he went unconscious
due to heat stroke. Acquitted of charge, did not meet MR. Charron creates the marked departure test for
dangerous driving. Test for dangerous driving causing death (249.1) is a modified objective standard which
must constitute a marked departure from the standard of a reasonable person. Contextualizing standard
by looking at incapacity.
Roy was convicted dangerous driving causing death after he drove his vehicle into the path of a tractor-trailer,
resulting in death of his passenger. Roy had no memory of accident, therefore no explanation for it. SCC
overturns conviction, stating that the trial judge erred in law erred by equating fault with the failure to
explain the conduct, and concluded that the accident was a result of a single and momentary error in
judgment with tragic consequences. Need some level of fault or moral blameworthiness (rather than mere
negligence) to support a criminal conviction.
Planned to kill his wife by putting gasoline on car seats and crashing, ended up killing his 2 children. Found
guilty of M1. The identity and character of any victim is entirely irrelevant as the MR from the murder
transfers to the persons who were murdered. Dickson allows law to artificially match AR/MR, combines
229b with 231.2.
Accused breaks into house, planning murder but says it wasnt deliberate as he was surprised. SCC finds guilty,
says have to prove both elements of M1. Cory: Says deliberate part was not impulsive, but considered.
gggggg
Accused put sharp pick in her throat, threatened she would never talk again after they had consensual
intercourse. Accused denies. CA sends back to trial because judge said objective foresight was sufficient. MR
and the requisite knowledge that the intended injury is likely to cause death is subjective for 229(a)(ii),
not objective.

Accused became angry in car. He grabbed her by the throat, said he could recall nothing else until he woke up
and saw body. Cory: The intent that is established need not persist throughout the entire commission of
bodily harm. An accused only needs to know death is likely at some point in the commission of his/her act
for 229 (a) (ii). MR test for 229a (ii) is a) subj. intent to cause bodily harm and b) subj. knowledge that such
harm is likely to cause death.
Accused went to steal marijuana. Entered basement, pulled out his gun lost his balance, discharged. Death.
Blow said looked like accident. Found guilty of B/E, robbery, and murder 2. Appeal dismissed by court.
Rouleau holds that SCCs ruling in Martineau does not make 229c unconstitutional, but only the ought
to know section.

8
R. v. LB (2011 Ont CA)
Infanticide (S.233), involves female
causing death of newborn by wilful act
or omission (mind still disturbed from
birth)

Accused predisposed to post-partum mood disturbance through her personality disorder. Killed her infant baby.
CA comes to conclusion is a special, discrete offense with particular elements and a partial defense to
murder. Objective foresight of bodily harm appropriate MR. You start with infanticide and it is available as
partial defense unless Crown can disprove infanticide elements. So if infant was older than that prescribed, can
go to murder.

R. v. Briscoe (SCC 2010)

Murder 1 (231.2)-Planned and
deliberate with S.21.1 (aiding and
abetting as party to offense is AR, MR
with intent to assist and by being
wilfully blind)
Wilful blindness, Party to offence

Deceased lured into the Bs car. B aware of Ls intention to commit both M1 and sexual assault, said I dont
want to see nothing. He drove and picked the place. TJ found AR, but not MR. CA overturned acquittals, say
they forgot wilful blindness. Charron dismisses Bs appeal. S.21 makes principal offenders and parties
equally liable. Partys MR must match principals MR. MR for being a party to an offense is the intent to
assist and knowledge that perpetrator intended to commit offence (includes whether it was
planned/deliberate for M1). Willful blindness substitutes for actual knowledge when knowledge is a
required component of the offences MR (it is subj. MR).

R. v. Rochon (2011 Que CA)

S.21.1 (party to offense), MJ
production

Mother, Rochon, finds sons marijuana plantation, tells him to get rid of it. Convicted of being a party to
marijuana production, but appeals and Que CA acquits her. Said there wasnt enough to satisfy section 21 (b)
and whether she had done/omitted to do something to aid/assist the offence. No AR or MR here, didnt
provide assistance.
Woman runs out of house naked with hands tied, she says X tied her up and raped her, says no consent. X says
she never expressed non-consent. TJ refused to let jury hear defence of mistake of fact (consent) which would
negate MR. SCC says TJ right, X is guilty of rape. They say mistake of fact standard is honest belief by
accused which is subjective rather than honest and reasonable belief which is obj. McIntyre also says
defense cant go to jury unless it gives an air of reality to the story. Needs to be plausible. Says it
wasnt here.
Ewanchuk gets girl into back of van, makes sexual advances, she says no repeatedly. Eventually he stops.
Found guilty of sexual assault. AR requirement of consent: Complainants subjective state of mind for
without consent. Doesnt need to vocalize non-consent, only consent when actively affirmed with
words/actions. MR requirement of consent: Accuseds state of mind: Did X honestly believe that
complainant had consented and communicated that consent? AR (assault, sexual element, and without
consent), MR (intent, intent, Xs belief)

R. v. Pappajohn (SCC 1980)

Mistake of fact with rape (honest
belief standard with mistake of fact,
would negate subjective MR of rape)

R. v. Ewanchuk (SCC 1999)

Mistake of fact with sexual assault
Accuseds burden to obtain consent,
going to subjective standard with
AR
(codified; s. 273.2 on CC, p. 223)
R. v. Tutton (SCC 1989)
Example of mistaken belief for
criminal negligence manslaughter

Religious parents believing in a spiritual cure take child off of insulin for the second time (after first time,
doctor warned against); child dies. Convicted, but SCC orders new trial..No definite test comes out of this
case, could adopt subjective (honest belief) or objective (honest but reasonable) MR test. Objective MR later
adopted in Creighton.

Altered States of Mind (NCR, Automatism, Intoxication): Not Criminally Responsible- S. 16: 1. Existence of a mental disorder (disease of the mind) and
2. Mental disorder is operating at time of act and accused has to establish on a balance of probabilities that (a) he/she was incapable of appreciating the
nature/quality of the act or (b) knowing it was wrong. Then person is entitled to a verdict of NCR (not criminally responsible) and placed under part 20.1 of
criminal code. Automatism: A transient or isolated state (usually referred to as a state of unconsciousness). Prior to Stone, only needed to raise a reasonable
doubt that the act was involuntary to get defence. After Stone, need to prove automatism on a balance of probabilities. Criteria: disease of the mind
(presumption that automatism springs from MD after Stone), internal/external causes/trigger (external means more likely automatism), ongoing danger (if there
is risk of reoccurrence, goes toward S.16), policy. Intoxication: Two variables at stake: How intoxicated and what crime was committed? Can be analyzed as
an AR issue of voluntariness, a MR question of intent or a defense. Difference between specific intent offences (involves the AR, coupled with an intent or
purpose going beyond the mere performance of the questioned act. Needs to be planned. Examples are administering poison with intent to kill, or assault with
intent to wound) and general intent offences (the only intent involved relates solely in performance to the act in question, with no further ulterior intent or
purpose).
MNaghtens Case (1843-60, UK)
UK foundation for mental disease
defence

MNaghten killed secretary to prime minister. Thought government was persecuting him. He has burden of
proving mental disease (1) and that it caused inability to know nature and quality of the act (2).

Cooper v. The Queen (SCC 1980)

Mental disorder defence

1-Disease of the mind is a legal term; medical considerations may be relevant, but it is in the end a legal
question which offences are to be classified as such. 2- S.16 definition altered from incapable of knowing the
act to incapable of appreciating the act (higher standard, appreciating in terms of a broader/receptive/emotional
way).
Accused charged with importing cocaine for trafficking. TJ found accused had a delusion that he was protected
from punishment by an external source, gives him S.16(2) protection. Dickson rejects, says it is only the
physical consequences of the act contemplated by appreciating of the nature/quality of an act, not the legal
consequences.

R v. Abbey (SCC 1982)

Mental disorder defence

R. v. Chaulk (SCC 1990)****

Mental disorder defence for Murder 1,
clarifies wrong in s. 16.2

X and friend enter a house, plunder valuables, kill the occupant. Under delusion, they felt they could rule the
world,
kill loser diseased, were above the law. Convicted, but SCC orders retrial. Later found NCR. Lamer: In s.
16,
wrong means morally wrong, not legally wrong. Before this, it was both. If X is deprived by disease to
be unable to rationally make a moral decision (i.e. to see something as morally wrong), then X should be

9
able to use an s. 16 defence. McLachlin dissent: If accused knows an act is legally wrong, cant use S.16.
.

R v. Oommen (SCC 1994)

Mental disorder defence for Murder 2

Oommen killed victim as she laid sleeping by firing 9-13 shots. Suffering from a mental disorder described as
psychosis of a paranoid delusional type, which had led him to hospitalization. He thought the deceased was a
conspirator, and he had to kill her to prevent her from killing him. Found guilty by TJ, CA ordered new trial
saying S.16 applied. SCC agrees that it does apply. The accused is exempt from criminal responsibility
where, at the time of the act, a mental disorder deprived the defendant of the capacity for rational
perception, hence rational choice about the rightness/wrongness of act. Knows killing wrong, but unable
to know his act of killing was wrong.

R. v. Rabey (Ont. C.A. 1977)

Non-mental disorder automatism
(NMDA) fails; Internal/external cause
test

Geology student who, in dissociated act, clobbers girl who didnt want to be his girlfriend. Tries to use nonmental disorder automatism defence. Court finds guilty. Say NMDA only available when average, normal
person would have reacted to an event (psychological blow) by dissociating (cause is external; a shocking
blow). Unless a state of automatism can be attributed to some external cause, then any automatism must
stem from a mental disorder. Internal cause->mental disorder automatism, External cause->no mental
disorder, but possibly non-mental disorder automatism.
Man drives while sleepwalking, hatcheting his in-laws (one dies, the other lives). Acquitted by court
(automatism). Internal/external distinction important, but not determinative. Lamer concerned about
absolute acquittal re: dangers of recurrence here; but majority says no alternative. When it doesnt meet
the policy reasons for the continuing danger/internal cause theory (which both lead to a MD), no grounds
to prevent NMD-A. LaForest brings up the 3 factors here in concurring opinion: external/internal,
ongoing/continuing danger, policy.
Stone fights with wife in truck; feels whooshing sensation; when his consciousness returns, his wife has been
stabbed 47 times. SCC finds guilty of manslaughter, defense of NMD-A dismissed. Bastarache: Step 1
(BOP): Accused must establish involuntariness on a balance of probabilities. Step 2 (MDA or NMDA):
Starting with presumption that automatism springs from a mental disorder. Accused can then disprove
mental disorder on a balance of probabilities by looking at 3 factors: 1) internal cause theory (Contextual
objective normal person test, would a normal person in the same circumstances have the same
reaction? Needs to be yes. Needs to be an external threat); 2) continuing danger theory (recurrence of
trigger, needs to be none, if there is, its a MD); 3) other policy factors (needs to be none). If test not
satisfied, then its MD and proceed with S.16 analysis.
Sexual assault for engaging in non-consensual sexual relations with victim. Had done this before. Doctor stated
a person experiencing a parasominiac episode acts without any volition, consciousness, or capacity to control
behaviour. Found to have MDA, gets verdict of NCR. Although similar to Parks facts, use new Bastarache
standard.
Self-induced intoxication cannot be used as a defense for offences requiring general intent like rape, only
specific intent offenses. Distinction between general and specific offences introduced here. On reasonable
doubt standard (shifts to BOP in Daviault)

R. v. Parks (SCC 1992)

NMDA succeeds
Concerns re: continuing danger

R. v. Stone (SCC 1999)****

NMDA fails
Bastaraches NMDA test
Makes NMDA very difficult to
establish, change in burden of proof
and presumption (now presume it is
caused by a mental disorder), most
cases go to S.16 and are MDA.
R. v. Luedecke (2008 Ont Ca)
Mental disorder automatism (MDA)
under section 16, verdict of NCR
R. v. Leary (SCC 1978)
Intoxication (not a defence to rape and
other general intent offences)

R. v. Bernard (SCC 1888)

Drunk individual sexually assaults, found guilty. McIntyre says should not be entitled to acquittal just because
Intoxication with sexual assault (2 for
you got yourself into such a state. Intoxication is no defence for a general intent crime (i.e. assault, rape),
recognizing defense, 2 for not, 2 for
but is for specific. Proof of voluntary drunkenness is sufficient for necessary MR. Dickson dissent says this
middle ground)
is unjust, should have to prove MR with taking intoxication into account.
R. v. Daviault (SCC 1994)****
Daviault, extremely intoxicated (enough to kill an ordinary person), sexually assaults partially-paralyzed elderly
Intoxication (now a defence for
woman. Acquitted by TJ as they said he was so intoxicated there was no MR, convicted by CA, but reversed by
general intent crimes when
SCC for a new trial. Cory: Its unconstitutional to convict someone of an offence when theyre extremely
intoxication akin to automatism),
intoxicated (akin to automatism) because they dont have the minimum MR or voluntariness for the act.
Legal burden is on accused to prove
If youre charging for sexual assault, need the MR for sexual assault. The legal burden is on X to prove
this defence (that they were intoxicated this defense on a balance of probabilities. Has since been overturned by criminal code S. 33.1 but hasnt
to the point of being akin to
been constitutionally tested yet. Sopinka dissent: a blameworthy mind (self-induced intoxication qualifies) is
automatism) on a balance of
sufficient for MR.
probabilities.
Criminal Code s. 33.1
Direct response to Daviault. It limits the application of Daviault to non-violent general intent crimes. SelfSelf-induced intoxication not a
induced intoxication (akin to automatism) not a defence when person interferes or threatens to interfere
with the bodily integrity of another person. SCC yet to test constitutionality, no case on it.
defence for violent general-intent
crimes
Defences: A verdict of guilty is not automatic once the Crown proves accused committed the prohibited act (AR) with the requisite degree of MR. Multitude of
defences available and categories are not closed. Generally, they fall into 2 categories: justification (ex. Self-defense) and excuse (necessity, duress). Most are
codified/statute-based, but some defined by common law (like necessity). Self-defence: Entirely codified (limits of it found in the statutory provisions under
which the defense can be invoked). S. 34 (1): Regular self-defence in unprovoked assaults (less violence, low degree of injury, allowed to do it as long as force
used is proportionate). S. 34 (2): While defending yourself from unlawful assault, you cause the other person grievous bodily harm or death. (X has to be in a
state of reasonable apprehension of death/grievous bodily harm and has to believe on reasonable grounds that there is no avenue of escape and no other choice
but to respond with violence), still a proportionality requirement. Necessity: Grounded in the idea that an individual can be placed into circumstances that the
court refers to as moral involuntariness. An offense committed in circumstances of coercion. With necessity, the coercion is some kind of external event.
Common law defence. Duress: Nature of coercion in duress springs from human agency (like at gun point) instead of natural or non-human threat with

10
necessity. A statutory defense (S.17) that generated a common law branch. S.17 is fairly onerous/narrow/hard to achieve, it is for principal offenders. Common
law version of duress is for parties. In both necessity and duress, the accused clearly commits both the AR and MR. Provocation (S.232): Codified defense
which applies only to crime of murder and if successful will reduce a charge of murder to manslaughter. It cannot result in an acquittal. It is a mitigating
defence, serves to contextualize behaviour, not excuse or justify it. There is an objective and subjective component. The objective component includes #1. Has
to be a wrongful act/insult, #2. Sufficient to deprive ordinary person of self-control. The subjective component asks whether the accused acted on the
provocation before there was time for the passion to cool.
R. v. Lavallee (SCC 1990)
Self-defence under 34(2)
34(2) remains an objective standard
but informed subjectively in battered
women cases.
R. v. Cinous (SCC 2002)
Self-defence under 34(2) for Murder
1
Objective/subjective analysis of the 3
elements of 34(2) *In future, look at
new section 34 (an objective test
with contextual considerations)
Morgentaler v. The Queen (SCC
1976) Necessity denied

R. v. Perka (SCC 1984)

Necessity allowed
Three-step test for necessity

R. v. Latimer (SCC 2001)

Necessity denied, no air of reality
found for necessity
reapplies test, adds threshold
standards

Criminal Code, s. 17
Duress provision

R. v. Hibbert (SCC 1995)

Duress allowed for party to
attempted murder/aggravated assault
Three-step test for duress (modified
objective)
R. v. Ruzic (SCC 2001)
Duress allowed, s. 17 immediacy
unconstitutional , (opens up
necessity, threats to third parties now
protected against)

R. v. Ryan (SCC 2013)

Duress rejected, Harmonizes
statutory and common law versions
of duress with new common
elements, Remaining differences
between statutory and common law
now are parties still under common
law/ principal offenders under s.17
and the 22 exceptions

X in abusive relationship with husband, husband threatens her (either kill me or Ill kill you), X shoots
husband from behind. SCC allows appeal and acquits her. Elements for self-defence causing death (34.2):
Reasonable apprehension of death/bodily harm, reasonable grounds for believing no safe avenue of
escape, proportionality. Wilson retools reasonable to allow for subjective circumstances (like battered
wives syndrome). Can subjectively think youre under apprehension of death to use defense.
Cinuous believe 2 men in van were armed and ready to kill him. Stopped car, shot 1 man in back, killing him.
Claimed self-defense, however jury rejected it and convicted him of Murder 1. CA overturned conviction, SCC
restored it. Self-defence defence must possess an air of reality; that is, if a properly instructed jury
acting reasonably could acquit the accused on the basis of the defence To have air of reality, must be
some evidence of all 3 elements of self-defense (existence of unlawful assault, reasonable apprehension of
harm/death, reasonable belief of no alternative of preserving oneself other than by killing). Analyze these
both subj. and obj.. Not enough to subj. believe those things, must be objectively reasonable, thats where
Cinous fails here (on #3).
Morgentaler attempts to rely on a defence of necessity against Criminal Code charges against performing illegal
therapeutic abortions. But he could have sought out certificate and went outside the law. Majority deny
defence of necessity. Doctor has no entitlement to take law into own hands on the basis of his own opinion
of the danger of life/help.
Seafaring drug smugglers from Colombia forced to seek refuge on B.C. shoreline due to engine troubles;
charged with trafficking. Say they never intended to land in Canada but for fear of death. Convicted on appeal.
Dickson allows necessity defense, sends back for retrial. Draws distinction between excuse (act wrong, but
excused under circumstances) and justification (act not wrong) defences; this an excuse. Also creates test
for necessity: Need 1) an urgent and imminent peril, 2) no reasonable legal alternative (moral
involuntariness), 3) proportionality between harm avoided and harm caused (through the crime
committed). Crown has onus to prove act was voluntary, no onus on X (therefore, X just has to raise a
reasonable doubt to be acquitted).
Latimer kills disabled daughter with exhaust pipe in car, living in pain. SCC upholds murder 2 conviction,
guilty. Reaffirms Dicksons test for necessity, says none of criteria were satisfied here. Also clarifies
standards to apply to test, says #1 and #2 were subject to modified objective test, while #3 to a regular
objective one. Modified obj. standard means an obj. evaluation, but one in which we look at what might
be reasonable in circumstances taking into account personal characteristics/the situation (reasonable
person similarly situated). Need sufficient evidence on elements to pass air of reality threshold for the
defense to be legally viable.
In Paquette, SCC says this defence only applies to principal offenders, not those who are parties to the
offence (who can rely on the common law duress defence). Exempts a list of more serious offences to which
the provision does not apply (murder, attempted murder, sexual assault, etc). It also required threat (1) of
immediate bodily harm or death (2) from someone present to offence (3) before Ruzic (below, which ruled it
unconstitutional). Also needed for the accused to believe the threats and for it not to be 1 of 22 exempt offences.
Hibbert threatened at gunpoint to accompany. Bailey as he went to shoot and kill deceased; charged with
aggravated assault. Court acquits, accepts duress defence. Lamer: common law duress is just for parties of
an offense and it requires 1) Peril (which was overruled by Ruzic and is now rolled into no safe avenue)
2) No safe avenue of escape and 3) Proportionality. Determine these with an obj. test that takes into
account the particular circumstances and human frailties of the accused (basically MO test).
Yugoslav Ruzic lands at Pearson with heroin, false passport. Thug threatens harm against mother back home
unless she smuggles drugs. SCC upholds her acquittal. Lebel: Code Duress requirements of the threat being
immediate and the person present is unconstitutional; it violates Charter s. 17 because it can lead to
the conviction of persons for morally involuntary acts. Immediacy element rolled into safe avenue
criteria. Need close temporal connection between threat and harm threatened. Safe avenue modified
objective standard, one of a reasonable person similarly situated. Also consider proportionality b/w
threat and crime.
Severely abused woman in abusive domestic relationship takes out a contract hit on her former partner. Makes
her contract with an undercover agent and is caught. She claims duress. Not ever been used before when duress is
coming from another and causing them to injure that same person. Court rejects duress, stays proceedings. They
say duress defence deals with actions that are morally involuntary. She was never compelled to act as she did.
Nor was it against an innocent third party (which you need for duress). Harmonizes the common law and
statutory versions of duress by making common elements to it: 1. Have to be a threat of present or future
bodily harm or death. 2. The accused must believe threat will be carried out (modified obj.). 3. No safe
avenue of escape (modified obj.) 4. Temporal connection has to be close. 5. Proportionality (modified obj.
despite it being objective for necessity in Latimer).

11
R. v. Hill (SCC 1986)
Provocation fails, definition of
ordinary person

Teen kills man who he says came on to him. Uses provocation defense. Was the homosexual advance an insult
that satisfies the obj. part of the provocation test? TJ doesnt instruct jury about characteristics of the accused
(didnt qualify ordinary person). SCC finds him guilty. Dickson says judge not required as matter of law
(with objective test and ordinary person) to instruct on age/gender, but said these are considerations that
need to be taken into account. Wilson dissented, says it should have been given due to homosexual
advance.

R. v. Thibert (SCC 1996)

Broadens provocation defence,
definition of ordinary person for
provocation standard (ordinary
person can now custom-fit anyone)

Xs wife is having an affair. X confronts wifes lover with a rifle. Lover says, come on big fellow, shoot me.
X shoots, kills. X claims provocation as defence. X argues trial court erred in not telling jury that Crown had to
establish beyond a reasonable doubt that there was no provocation. SCC says retrial, Cory says this kind of insult
may have provoked ordinary person. Cory: The ordinary person standard in provocation provision takes
into account Xs age, sex, and Xs background and history with the diseased. Ordinary person becomes Xs
identical twin essentially, basically turns objective standard into a subjective one.
Tran found his estranged wife in bed with her new boyfriend. Tran stabbed the man to death. Tried to use
provocation defence, TJ gave it to him, convicted of manslaughter instead of murder 2. CA rejects provocation,
SCC rejects it as well. Convicted of murder 2 upheld. Charron: Contextualized test for provocation: 1) Insult
must be of sufficient gravity to cause a loss of self control as objectively determined by ordinary person.
(no reference to accused characteristics/circumstances as before) 2) a) and accused was deprived of selfcontrol in response and b) before there was time for his passion to cool. Standard is objective, requires an
element of suddenness and insult, no conceptualizations of honour.

R. v. Tran (SCC 2010)

Provocation defence, provides new
contextualized test for it