evidence and proof - uvic lss · web viewis required (the word “wilfully” was thus not...

Spring 2015 Sarah Chaster – Law 102 Crim Outline (Final)

LAW 102: CRIM OUTLINE (FINAL)

Evidence and Proof..................................................................................................................3Woolmington v. DPP (1935, Eng. HL)................................................................................................................................ 3R v. Oakes (1986, SCC).............................................................................................................................................................. 3R v. Lifchus (1997, SCC)........................................................................................................................................................... 3R v. Starr (2000, SCC)............................................................................................................................................................... 4

Introduction to Actus Reus......................................................................................................4Contemporaneity........................................................................................................................................................................ 4

Fagan v. Commissioner of Metropolitan Police (1969, QB).....................................................................................5R v. Miller (1982, UK)................................................................................................................................................................ 5R v. Cooper (1993, SCC)........................................................................................................................................................... 5R v. Williams (2003, SCC)........................................................................................................................................................ 5

Voluntariness................................................................................................................................................................................6R v. Larsonneur (1933, UK).................................................................................................................................................... 6Kilbride v. Lake (1982, NZ).................................................................................................................................................... 6R v. King (1962, SCC)................................................................................................................................................................. 7R v. Ruzic (2001, SCC)............................................................................................................................................................... 7

Omissions....................................................................................................................................................................................... 7R. v. Browne (Ont CA 1997):.................................................................................................................................................. 8Thornton (Ont CA 2003):...................................................................................................................................................... 10R v Coyne (NBCA, 1958):....................................................................................................................................................... 11R v Popin (ONCA, 1981):....................................................................................................................................................... 11R. v. Nixon (BCCA, 1990):...................................................................................................................................................... 11R v Mabior (2012, SCC)......................................................................................................................................................... 11

Status............................................................................................................................................................................................. 12Circumstances........................................................................................................................................................................... 12Consequences and Causation..............................................................................................................................................13

Smithers v The Queen (1978, SCC)................................................................................................................................... 14R v Cribbin (1994, ONCA)..................................................................................................................................................... 14Pagett v The Queen (1983, UK)......................................................................................................................................... 15R v SR (2008, ONCA)............................................................................................................................................................... 15R v Blaue (1975, Eng. CA)..................................................................................................................................................... 15R v Harbottle (1993, SCC).................................................................................................................................................... 16R v Nette (2008, SCC)............................................................................................................................................................. 16R v Maybin (2012, SCC)......................................................................................................................................................... 18

Introduction to Mens Rea and Intent.....................................................................................20R v Lewis (1979, SCC)............................................................................................................................................................. 21R v Steane (1947, UK)............................................................................................................................................................ 21R v Hibbert (1995, SCC)......................................................................................................................................................... 22R v Buzzanga and Durocher (1979, Ont. CA)............................................................................................................... 22R v ADH (2013, SCC)............................................................................................................................................................... 24

Recklessness and Wilful Blindness..................................................................................................................................25R v Sansregret (1985, SCC).................................................................................................................................................. 25R v Briscoe (2010, SCC)......................................................................................................................................................... 26

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R v Duong (1998, Ont. CA)................................................................................................................................................... 26Criminal Negligence and Penal Negligence..................................................................................................................27

R v Tutton and Tutton (1989, SCC).................................................................................................................................. 27R v Waite (1989, SCC)............................................................................................................................................................ 28R v Gingrich and McLean (1991, Ont CA)...................................................................................................................... 28R v Hundal (1993, SCC)......................................................................................................................................................... 28R v Creighton (SCC, 1993).................................................................................................................................................... 29R v Beatty (2008, SCC)........................................................................................................................................................... 30

Charter Considerations and Review................................................................................................................................32Vaillancourt v The Queen (1987, SCC)............................................................................................................................ 32R v Martineau (1990, SCC)................................................................................................................................................... 33

Absolute and Strict Responsibility...................................................................................................................................35

Defences................................................................................................................................38Mistake of Law/Ignorance of Law....................................................................................................................................38Intoxication................................................................................................................................................................................. 41

Specific Intent versus General Intent Offences............................................................................................................42D.P.P. v. Beard (1920, House of Lords)........................................................................................................................... 42R v George (SCC, 1960).......................................................................................................................................................... 43R v Daviault (1994, SCC)....................................................................................................................................................... 44s. 33.1............................................................................................................................................................................................ 44

Mental Disorder........................................................................................................................................................................48Fitness to Stand Trial............................................................................................................................................................. 48How the Defence Works........................................................................................................................................................ 50Reform – Bill C-14.................................................................................................................................................................... 53Substantive Aspects................................................................................................................................................................ 54Intoxication and Mental Disorder: Note on Co-Occurrence..................................................................................59Distaste for NCRMD................................................................................................................................................................ 60

Automatism................................................................................................................................................................................ 61Burden of Proof........................................................................................................................................................................ 61Automatism v. Non-Insane Automatism........................................................................................................................ 62Leading Automatism Cases................................................................................................................................................. 64

Provocation.................................................................................................................................................................................67“Wrongful act or insult”........................................................................................................................................................ 68The Objective Test................................................................................................................................................................... 68Cultural Factors....................................................................................................................................................................... 69Subjective Test.......................................................................................................................................................................... 71

Self-Defence................................................................................................................................................................................ 71OLD LAWS................................................................................................................................................................................... 71NEW LAWS – CIF March 2013........................................................................................................................................... 74Self-Defence & Relationship Violence.............................................................................................................................. 75

Duress........................................................................................................................................................................................... 78

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Evidence and Proof

Proof beyond a reasonable doubt/Presumption of innocence: Foundational to our criminal justice system. What is a “reasonable doubt”? See Lifchus.

Actus reus, mens rea, absence of a defence: all must be proved BRD

Evidentiary burden: Trial management technique, used to reign in availability of defences.- At the end of the trial, the judge only charges the jury on defences where the evidentiary

burden has been met- The standard is “some evidence” (minimal burden)- “Air of reality” test

Three exceptions to the presumption of innocence:- Reverse onus situation (subject to Charter scrutiny, e.g. Oakes)- Certain defences for which the accused holds the persuasive burden (e.g. NCRMD, every person

is presumed sane)- The evidentiary burden (must put forward some evidence for judge to charge jury on that

defence)

Policy problem: Crown uses provincial legislation to try and get around the strict rules (e.g. civil forfeiture – taking property that they thought was connected to criminal activity – provincial legislation = BOP not BRD)

Woolmington v. DPP (1935, Eng. HL)Principle The “golden thread” of the presumption of innocence and the requirement of

proof beyond a reasonable doubt are intertwined & foundational in our system of criminal law.

Note This is the first time the presumption of innocence was articulated.

R v. Oakes (1986, SCC)Facts s. 8 of the Narcotics Act placed a reverse onus on the accused (if found guilty of

possession, accused must prove on a BOP that they were not guilty of trafficking)Held This reverse onus violates the presumption of innocence in 11(d) of the Charter.Reasons Presumption of innocence: protects life, liberty and security, reflects faith in

humankind. This principle is “essential in a society committed to fairness and social justice”. It protects the “fundamental liberty and human dignity of anyone charged by the state of criminal conduct.

Ratio

R v. Lifchus (1997, SCC)Facts Trial judge told jury to use phrase “reasonable doubt” in its “ordinary, natural,

every day sense”. Was this in error?

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Held Yes.Reasons What does “reasonable doubt” mean?

An explanation should include the following” BRD is inextricably intertwined with presumption of innocence Burden is always on the Crown Not based on sympathy/prejudice, but rather reason/common sense BRD is logically connected to the evidence (or lack thereof) Less than absolute certainty (this would be impossibly high), but more

than probabilityAn explanation should not include the following:

That “reasonable doubt” is an ordinary term with no special legal meaning Use the same standard that you would apply to decisions in your life Don’t use words like “serious, substantial” – may be misleading

Ratio The term “reasonable doubt” is grounded in reason and common sense. It is more than probability, but not certainty. If you are sure the accused committed the offence, you must convict; if you think he is only “probably” guilty, you must acquit.

R v. Starr (2000, SCC)Facts Judge told jury “reasonable doubt” had no special connotation & did not require

proof of an absolute certainty.Held This failed the Lifchus standard; must explain BRD has special legal significance.Reasons Complied with some Lifchus requirements, but not others. BRD is a confusing term

and is hard to quantify – must be explained. Much closer to “absolute certainty” than “probable guilt”.

Dissent The Lifchus standards are merely guidelines, not requirements. Omitting one does not vitiate the entire charge to the jury.

Introduction to Actus Reus

Criminal responsibility = actus reus + mens rea + no lawful excuse/justification (i.e. defence)

The actus reus requires a (1) physically voluntary (2) act or omission, (3) sometimes in proscribed circumstances and (4) sometimes causing certain consequences.

Contemporaneity

Contemporaneity: the actus reus and mens rea must concide to constitute the crime.- Must be some temporal overlap- Strict application can lead to absurd results, so courts have often been flexible and used a

“common sense” approach (must simply be concurrence at some point)- Courts endorse continuous transaction approach, rather than slicing up the act

Note on duty: Miller and Fagan deal with a failure to act, i.e. creation of a legal duty to act – problem here is that we cannot create new common law offences. Does this offend s. 9?

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Policy: By looking at things as a “continuous transaction”, are you basically creating a common law duty to act, thus violating s. 9?

Fagan v. Commissioner of Metropolitan Police (1969, QB)Facts Fagan accidentally drove car on constable’s foot, then turned off car engine, said

“fuck you, you can wait”. Then, slowly turned car on and reversed off foot.Issue Initial act was an accident, but then failed to remove car from foot. Was the act

complete when the wheel came to rest on his foot, or was it continuing until wheel was removed?

Held Act was initially intentional, but the intention was formed during the act which made it criminal.

Ratio Used a “common sense approach” (continuous act theory) to find contemporaneity.

R v. Miller (1982, UK)Facts Accused squatter, fell asleep on mattress with lit cigarette, woke to a smouldering

mattress & simply moved to another room. Later, charged with arson.Issue Like Fagan, this involves an omission. Can there be criminal liability?Held Yes. Look to the act as a whole to find both actus reus and mens rea.Ratio An unintentional act followed by an intentional omission to rectify that act or its

consequences can be regarded in toto as an intentional act.

R v. Cooper (1993, SCC) **Leading case on contemporaneity – cite on exam **Facts Accused was angry & shook victim by the throat; woke up later to her dead body;

no recollection (alcohol was a factor).Held SCC restored conviction.Reasons - Classic rule is that actus reus and mens rea must coincide “at some point” (i.e.

act can be initially innocent/careless, but can become criminal – Fagan, Miller)- Meli: A series of acts may form part of the same transaction (accused thought victim was dead, threw him off cliff, but victim actually died of exposure – seen as one continuous transaction)- Here, it is sufficient that he knew he was causing her bodily harm and knew it was so dangerous that she might die – the intent and the act of strangulation coincided at some point (intent need not have continued through the entire time it caused to strangle her, during which time he blacked out)

Ratio As long as the actus reus and mens rea coincide at some point, that is sufficient for contemporaneity (the requisite intent need not continue throughout the entire act). Court endorses the “continuous transaction” approach.

R v. Williams (2003, SCC)Facts Man found out he was HIV positive; kept having consensual sex without telling his

partner; victim tested positive for HIV and Williams charged w/ aggravated assault

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Held Guilty only of attempted aggravated assault.Reasons - There was a reasonable doubt as to whether, at the time he was aware of his HIV

positive status, he was endangering the complainant’s life- Complainant may have already been HIV positive when Williams discovered and then concealed his HIV positive status- Crucial problem of the Crown’s case: there was first endangerment but no intent, and then intent but possibly no endangerment- Problematic b/c the actus reus and the mens rea may not have coincided

Voluntariness

Voluntariness: Challenging area (often, blend of voluntary act and involuntary response).- Essential focus is conscious choice (not just physical voluntariness)- Theory of human agency which relies on the close relationship between moral blame and free

choice (no criminal liability if no choice to act)- Concept of free will & meaningful choice is central to the idea of voluntariness- Involuntary action: muscle spasm, reflex actions, sleepwalking- Rabey, Parks, Daviault, Stone – cases where this comes up

Moral involuntariness: Stretching voluntariness beyond the strictly physical sense into the realm of moral choice.

- E.g.: defence of duress- Ruzic – sympathetic to this idea – someone may not be guilty if their act was morally

involuntary due to duress and compulsion

R v. Larsonneur (1933, UK)Facts French citizen in the UK; passport conditions changed such that she had to leave

immediately. She went to Ireland and was deported back into the UK, where she was convicted of being an alien (“guilty through circumstances beyond her own control”).

Held She was clearly an alien. It was immaterial how she came to be back in the; UK she was there after the point that she was allowed to be there, thus her appeal is dismissed.

Ratio This decision has been viewed as improperly ignoring the voluntariness component of the actus reus.

Kilbride v. Lake (1982, NZ)Facts Man left car in parking lot. Came back & had ticket for not displaying current

warrant of fitness. Warrant was there when he left – must have been removed by somebody else.

Held He had no opportunity to take a different course. The omission to carry the warrant was not within his conduct or control (someone else did it), thus no voluntariness, and no criminal liability.

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R v. King (1962, SCC)Facts Man under anaesthetic from dentist, told not to drive but did so anyway &

crashed. Testified he did not hear the warning. Convicted of impaired driving.Held SCC overturned his conviction.Reasons There can be no actus reus unless it is the result of a willing mind, at liberty to

make a definite choice or decision.Ratio Free will and meaningful choice are central to the idea of voluntariness.

R v. Ruzic (2001, SCC)Principles - Recent expansion of the idea of voluntariness (beyond physical voluntariness).

- Criminal responsibility can only come from acts resulting from the choice of a conscious mind and an autonomous will- Otherwise, cannot justify the stigma/burden of criminal responsibility- Cannot punish a person whose actions are physically involuntary- Principles of voluntariness given constitutional status in Daviault (conviction without volition would infringe s. 7 rights)

Ratio The absence of voluntariness is always a full defence to a crime.

Omissions

Acts The criminal code may set out a prohibited Act that creates an offence Sometimes unclear what the code means or what the scope is. If so check: (1) for a definition (2) then examine case law which may interpret (3) then apply

rules of statutory interpretation if still unclear. Remember: interpretation of criminal laws subject to doctrines of vagueness,

arbitrariness, overbreadth

Omissions

An omission is a failure to act – deep discomfort in criminalizing these Policy problems with criminalizing “doing nothing” There is no general duty to be a good Samaritan, or to act, intervene or report a crime Starting point: the criminal law ill not punish for a mere failure to act, unless a duty to act has

been imposed by statute or common law Therefore, to be guilty of an omission, you must have a positive legal duty to act Common law recognizes 3 categories (now codified) of exceptional circumstances where there’s

a legal duty to act: (1) Relationships of dependency (parent-child, dr-patient, jailor-prisoner, etc) (2) Undertaking to do something (3) Duty to use reasonable care in dealing with dangerous objects (like firearms) or

performing dangerous tasks (like heart surgery) Remember generally: grounding liability in common law duties raises concerns about breaching

s. 9 of the Criminal Code.

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EXAM: if given an offense and have to tease apart actus reus, look to language: are you dealing with an act or a failure to act? Also, read ss. 215, 216, 217 and 217.1 carefully!

Specific omission offences: Explicitly punish failure to act in a certain fashion, i.e. specific offences grounded in failure to act.

Section Offences.215(1) Duty to provide “necessaries of life” to certain dependents

a. to a child [can include food, shelter, taking them to hospital when sick, protection from violence]

b. to a spouse or common law partner [not just a boyfriend or girlfriend]c. to a person under one’s charge [catch-all provision. Includes jail, etc]

s.216 Duty of persons to use reasonable care in undertaking acts that may endanger life [includes surgery and any other lawful act]

s.217 Duty of persons undertaking an act to actually do the act, if omitting to do it may be dangerous to life

R. v. Browne (Ont CA 1997):Facts Issue Decision Reasons RatioGirlfriend swallowed cocaine and overdosed. When he noticed her in shock he said “I’m going to take you to the hospital” and called a taxi. She was DOA.

NB: Raised serious question as to whether reliance on common law duties can ground criminal liability (violates s. 9?)

Was his attempt to get her to the hospital an “undertaking” such that he had a legal duty under 217, and his calling a taxi was “wanton and reckless disregard”?

NB: Only if he had a legal duty from an “undertaking” within the meaning of s. 217 could he be found criminally negligent for “omitting to do anything that it is his duty to do” within s. 219 of the Code (general omission offence)

No. No duty through pre-existing relationship (s. 215 doesn’t apply to mere friends or boyfriend and girlfriend).Serious penal consequences must be considered in determining definition.No clear causal evidence that she’d have lived anyway.Only an undertaking could lead to a legal duty (not vice versa)

“undertaking” is a high threshold, more than willingness. Needs to be a “binding” commitment made by the accused upon which reliance can be reasonably placed.Promising to take someone to the hospital does not constitute a legally binding undertaking

More notes: Ont CA expressed serious concerns about incorporating civil standards of care into

criminal law

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Can you base criminal liability on a failure to perform a common law duty? Problematic mixing of civil negligence and criminal law?

Relying on common law duties to ground criminal liability raises serious concerns about violation of s. 9.

Could argue that rather than creating a new common law offence, it simply fills in the blanks on an existing statutory offence, but still violates the spirit of s. 9

Law reform question: should Canadian courts create a new legal duty which would require accused persons who accidentally create danger to take action to stop it? (Eng. HL did this in Miller – burning mattress)

Critics of this case say the definition of undertaking is needlessly strict; if they just wanted to enter an acquittal they could’ve said there was an undertaking but by calling a cab he’d fulfilled it, or focused more on the issue of causation. Accused’s intention doesn’t meet the requirements of the offence of criminal negligence, i.e. wanton/reckless disregard

s.217.1 Duty on persons who direct the work of others to take reasonable steps to prevent bodily harm to other persons arising from that work [emerged from West Ray Mine disaster as a way of holding corporate officials liable for failure to act (failure to implement occupational health and safety standards)]

s.50(b) Fails to report to the police a high treason (s.46(1) that is about to be committeds.80 Breach of duty in regard to the care of explosives (s.79)s.127 Failing to obey a court orders.129(b) Omitting to assist a police officer when requested [this is like helping to manage a car

accident scene, not assisting in an investigation]s.252(1) Failing to stop and render assistance after being involved in an accidents.254(5) Failing to provide a sample of your breath

General omission offences: establish criminal punishment based on failure to perform a legal duty, but don’t specify what that legal duty might be. Crimes committed by an omission of a legal duty. The big question is: what are these legal duties? What omissions give rise to criminal liability? SCC hasn’t given a definitive answer here.

Generally: Canadian criminal law is very unsettled on duties that could invoke liability for omissions. This should be left to Parliament under statute, not common law (this is the only way to be consistent with the abolition of common law offences). So the general omission offences sometimes point to a specific omission offence (e.g. s. 180, common nuisance – looking to a legal duty, i.e. one of the specific omission offences) – BUT sometimes they look to the common law duties to flesh them out, which is then problematic because it arguably violates s. 9.

- s. 180: nuisance offences- s. 219: criminal negligence- s. 220: criminal negligence causing death- s. 221: criminal negligence causing bodily harm

Section Offences.180(2)

Common Nuisance--Everyone commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (a) endangers lives, safety, health, property or comfort

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of the public

Thornton (Ont CA 2003):Relied on Donoghue v. Stevenson to hold individual liable for failure to disclose that he was HIV positive when donating blood. Created a duty to disclose.

Facts Issue Decision Reasons RatioThornton was HIV+, knew it, and was educated about it. He donated blood to Red Cross. Charged with nuisance endangering lives of the public (180)

Can a legal duty arise from common law?

Yes (though case ultimately decided on statutory duty)

There is a well established common law duty to refrain from engaging in conduct which is reasonably foreseeable to cause serious harm to other persons.

Liability for common nuisance can arise out of breach of a common law duty.

More notes: Ont. CA relied heavily on “neighbour principle” from DvS – i.e. based a general

omission offence on common law duties – is this okay? D also argued that he didn’t have proper mens rea (court found he did) + that he

didn’t actually injure anyone (court said he could have, seriously) Ultimately SCC didn’t deal with common law duties—conviction was sustained on

basis of 216 (imposed a duty of care in giving his blood). Thus SCC had the chance, but decided not to address whether it is acceptable to base criminal liability can be based on a common law duty

CCC, s. 216 (Duty of persons undertaking acts dangerous to life): Everyone who undertakes to administer surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have and to use reasonable knowledge, skill and care in so doing.

In Cuerrier, court took a different approach to HIV+ and consent—stepped back from whether there was a duty to disclose, and instead said failure to disclose constitutes fraud, thus vitiating consent. This duty to disclose resembles the creation of a common law duty. Court could have stayed in s. 216 (sex as a “dangerous act”) but instead turned to fraud. Practical effect is the same either way: imposition of a legal duty to disclose.

Section Offences.219,220/221

Criminal Negligence Causing Death/Bodily Harm—this is defined under s.219(1) which states: everyone is criminally negligent who: (a) in doing anything or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives of safety of other persons (2) for the purposes of this section “duty” means a duty imposed by law (unclear whether this is a specific omission offence or a common law duty – again, problematic – does it violate s. 9?)Big question with these general omission offences: what are these legal duties? What omissions give rise to criminal liability? The SCC has not yet definitively spoken on this. Must look to a series of lower court decisions.

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R v Coyne (NBCA, 1958):Duty in regard to crim negligence can arise out of statute or common law. Convicted accused based on common-law duty to take reasonable care when dealing with dangerous object (rifle). Note: Why not proceed under s. 216 instead of using common law?

R v Popin (ONCA, 1981):Duty in regard to crim negligence can arise out of statute or common law. In this case relied on common-law duty of parent to take reasonable steps to protect their child from violence (parent stood by while other parent committed physical abuse—guilty of crim neg.) Note: Why not proceed under s. 215 instead of resorting to common law?

R. v. Nixon (BCCA, 1990):Officer in charge of police lock-up was guilty of aggravated assault on the basis of his breach of legal duty to provide care and protection to inmates—inmate in this case was assaulted by other police officers and officer in charge knew, did nothing to stop it. Court held this duty arose out of common-law and statute. Note: Why not rely on s. 215(1)(c) instead of resorting to common law?

Other (Common Law) Duties

R v Cuerrier (SCC): Non-disclosure of HIV+ status vitiates consent for sexual conduct → therefore turns what was consensual sex into aggravated sexual assault.R v Mabior (SCC 2012) (application of Cuerrier test – laid out below)

R v Mabior (2012, SCC)Facts Issue Decision Reasons RatioDude was HIV+, knew it but didn’t tell his partners. Had a low viral count but only sometimes used a condom. Charged with 9 counts aggravated sexual assault.

Under what circumstances does failure to disclose HIV+ status vitiate consent and result in aggravated sexual assault as per Cuerrier?

If there is a realistic possibility that HIV will be transmitted. On the facts, there was this risk when he didn’t use a condom, but not when he had low viral load and used a condom.

Cuerrier test: dishonest act + deprivation (hiding knowledge of ‘significant risk of serious bodily harm’). Uncertainty: what’s ‘significant risk’ and what’s ‘serious bodily harm’?

A realistic possibility that HIV will be transmitted causes deprivation as per the Cuerrier test, vitiating consent. Cuerrier test is valid.

More notes: Summary: To obtain conviction, Crown must show the complainant’s consent was vitiated by

accused’s fraud as to HIV statuso Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have

consented had she know he was HIV-positive, and where the sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation)

o Here, a realistic possibility was negated by low viral load and condom protection (thus only charged for the times he had a low viral load but didn’t use a condom)

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Evidence that these laws reduce HIV testing is not conclusive. “Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have

consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation). A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV.”

“Realistic possibility of transmission of HIV”: Cannot mean any risk, however small (must look at nature of harm – the more serious the nature, the lower the probability to still constitute a significant risk)

Can’t set bar for criminal liability too high or too low Must strike balance between complainant’s interest in autonomy/equality and the need

to prevent overextension of criminal sanctions May be partial reverse onus on the accused to show he had a low viral load and protection was

used. By going way of fraud, SCC is taking us down a specific path (though maybe pulling back a bit in

Mabior by limiting circumstances where this would arise) EXAM: is this comforting or unsettling? Think about the stigma already involved in living with

HIV and alarmist reactions to this. Do they need to disclose even if the risk is very low (i.e. low viral load? Realistically, how often do you get your viral load checked?) What about other viruses like HPV? Would this have a chilling effect on healthy relationship between adults? Could be slippery slope. What if you are known to become violent when you drink – can we impose a legal duty to abstain?

Status

Status offences: Require neither act nor omission – rather, they punish a state of being. Obviously problematic; offends requirement of voluntariness Not very many today since they would likely violate s. 7 Closest thing today is possession offences, being a keeper of a gaming house, being nude in a

public place – but these all have underlying acts/omissions Closest example was vagrancy (held void for vagueness in Heywood) Modern example: Parliament considered but rejected option to create offence for “being a

member of a criminal organization” (instead, created offence for participating in one. Is this a real difference?)

Circumstances

Legislature may require specific circumstances to prove the offence (not simply the act is enough – requires prohibited circumstances as well)

E.g.: driving while impaired (act = driving, prohibited circumstances = while impaired) Some very straightforward; others (like without consent) are very hard to prove Some Parliament will clearly define; others require statutory interpretation (“in a manner

dangerous to the public”, “intentionally and recklessly”) Examples: “operates a vehicle in a manner that is dangerous to the public”, “commits an assault

when without the consent of the other person, applies intentional force”, etc

Summary up to this point: Crown must prove mens rea, actus reus, and absence of defence

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Crown must do so with proof BRD (3 exceptions) Actus reus: voluntariness (physical or moral)

o Voluntary act or omission of a legal dutyo What legal duty?

Can be common law, or statute Statue is easy; common law is hard Common law – does this violate s. 9 (abolition of CL offences?) Causes prescribed harm or occurs in prohibited circumstances (exercise in

statutory interpretation) EXAM: Look to language of provisions at p. 333 to 337 – discussion in regards to

proscribed harm and proscribed circumstances

Consequences and Causation

Where crimes require a particular outcome, the Crown must prove that the accused’s action caused the outcome. Factual causation asks, factually, how the event was caused; legal causation asks whether the accused should be held responsible in law for the act that occurred. Causation and mens rea are different, and together establish criminal liability (however if intent is proven, then usually causation isn’t an issue).

Factual Cause Some type of connection between the defendant and the criminal harm (physical, mental,

scientific). Very basic. Usually not an issue at trial. Is there a logical link between the accused’s conduct and the prohibited consequence? “But for” question Can be very small, so the main question usually comes down to, is there enough factual

causation to constitute legal causation?

Case HeldWinning (1973 ONCA)

Woman got credit from bank after lying on her application, but the bank didn’t use that form so there was no factual causal link; they would’ve given her credit even if she hadn’t lied.

White (1910 UK)

Accused poisoned mom, mom then died of an independent heart attack. No factual causation—not guilty of murder, but of attempted murder.

Legal Cause More difficult question – was the causal connection sufficiently strong to support criminal

liability? No statutory provisions for this – must look to the common law What is the threshold for this causal connection? “How much” did the act contribute to the

outcome?o Blaue: “Substantial & operating cause” (not just part of background/setting)o Pagett: Articulation of “significant cause” test

EXAM: On a fact pattern, ask – what is the offence? If 1st degree murder, applicable test is Harbottle. If 2nd degree murder (or anything else), test is Smithers (upheld as constitutiona in Cribbin) as re-articulated in Nette.

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Smithers v The Queen (1978, SCC)Facts - Star hockey players, fight, victim is punched and dies. Cause of death is

asphyxiation due to malfunctioning epiglottis (rare condition).- Accused charged with manslaughter- Factual causation is established, but were the acts significant enough to constitute legal causation?

Held Accused guilty of manslaughter.Reasons - Crown proved that the kick was at least a contributing cause of death (outside de

minimis range) – this was all they had to prove- Need not be the sole cause, or the main cause, or even a substantial cause; must be beyond de minimis (i.e. not insignificant – more than trivial)- Doesn’t matter that death was actually caused by epiglottis (no need to prove that death/injury was intended; only the kick need be intended)- Even if death was unexpected and physical reactions unforeseen, this does not relieve the accused of criminal liability- Accused must take his victim as he finds him (e.g. Blaue), thin-skulled man- With manslaughter, it is no defence that fatality was not anticipated or that death wouldn’t normally result from the act

Ratio Legal cause is any contributory cause that is beyond the de minimis range.This is still the test for anything other than first degree murder (but reformulated by Nette)

Note This case establishes a very low threshold for causation in criminal law (constitutionality of this test challenged in Cribbin)

R v Cribbin (1994, ONCA)Facts - Accused involved in beating that caused non-life threatening injuries. Victim left

alive but unconscious, and drowned in his own blood.- Accused convicted of manslaughter, appeals conviction- Issue: Is the Smithers test for causation constitutional, or is it so low it violates s. 7 by not reflecting moral blameworthiness of the accused?

Held Constitutional challenge fails. The test in Smithers is constitutional.Reasons - Fault element for manslaughter: requires objective foreseeability of bodily harm

which is neither trivial nor transitory- Is de minimis too vague? No. Can’t articulate with mathematical precision.- Is de minimis too remote? I.e. is it fair to punish someone for manslaughter when their “moral blameworthiness” never went beyond simple assault?- in manslaughter, causation is central (changes charge from simple assault to homicide)- Causation is held to be a PFJ, as is the fault element of crime – both principles say that the morally innocent cannot be punished (i.e .notion of moral responsibility)- Creighton: “thin-skulled rule” means distinction between foreseeability of death and foreseeability of bodily harm largely disappears (this is good – requires aggressors to take responsibility for all consequences, even if unforeseen – not contrary to PFJs)

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- The fault element articulated in Creighton ensures that the morally innocent won’t be punished (link between causation and fault element – see below)- Summary: As the law of manslaughter stands, if a person commits an unlawful dangerous act, in circumstances where a reasonable person would have foreseen the risk of bodily harm which is neither trivial nor transitory, and the unlawful act is at least a contributing cause of the of the victim’s death, outside the de minimis range, then the person is guilty of manslaughter. Both causation and fault must be proved beyond a reasonable doubt before the Crown can succeed.- Thus, this combination of fault/causation elements satisfies the principle of fundamental justice to protect the morally innocent

Ratio The test for legal causation in Smithers is constitutional. The combination of the fault element and causation means the morally innocent will not be convicted.

Pagett v The Queen (1983, UK)Facts Accused used pregnant 16 year old girlfriend as human shield against police.Held - Upheld his conviction of manslaughter

- Rejected principle that person cannot be convicted of homicide unless he himself fired the shot- Causation: The voluntary intervention of a third party, not acting in concert with the accused, may relieve him of criminal liability (but not involuntary intervention, like self-preservation)

Ratio A reasonable act performed for the purposes of self-preservation (which was caused by the accused’s own act) does not break the chain of causation.

R v SR (2008, ONCA)Facts Busy gunfight in Toronto street. Accused shot at B; B hit and killed 15 year old girl.

Court held accused’s conduct was a contributing cause of death, even though he did not fire the shot himself.

Ratio One danger which both contributed to. Matters less who actually did it. Joint cause of death.

R v Blaue (1975, Eng. CA)Facts Jehovah’s witness stabbed, could have been saved but refused blood transfusion

and died.Held The stab wound caused the death – the victim refusing blood transfusions did not

break the causal connection.Ratio Those who use violence on others must “take their victims as they find them.”

This is beyond physical “thin skull” factors – may be religious/personal choices.

R v Harbottle (1993, SCC)Facts - Accused & companion forcibly confined victim. Companion strangled her while

accused held her legs to keep her from struggling.- Issue: Was his participation such that he can be guilty of 1st degree murder?

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Held Court found that he did cause the death & was convicted of 1st degree murder.Reasons - 1st degree murder is an aggravated form of murder with strict sentencing

provisions – “when death is caused by that person” should be given broad interpretation (can include holding legs while another strangles)- Substantial cause test (restrictive, strict): Accused can only be convicted if their act was a substantial and integral cause of death (high standard reflects high degree of blameworthienss)- Higher standard than in Smithers (different degree of causation for different homicide offences, i.e. manslaughter versus 1st degree murder)- Requires active (usually physical) role in the murder- Accused guilty of 1st degree murder if guilty of the underlying crime, participated such that he was a substantial cause of the death, and no intervening act (see list on p. 362!). 5 factors for 1st degree murder in this case (automatically 1st degree if you cause the death of someone while committing one of these offences – sexual assault, domination, hijacking, kidnapping/forcible confinement, etc, or just any premeditated murder)

Ratio Harbottle sets a much higher threshold for legal causation – were the acts a “substantial and integral cause of death”? Requires a very active role (usually physical role) in the killing.

Note Courts have held that this test applies to 1st degree murder generally, but there is an argument for a narrower application (i.e. the Crown might argue this higher threshold should be limited to s. 231.5, i.e. murder caused while committing these listed offences)EXAM: Should the Smithers test apply equally to 1st degree murder, or should there be a special or higher test specific to 1st degree murder (articulated here)?

R v Nette (2008, SCC)Facts - 95 year old woman robbed by accused, left hog-tied (not intended to cause

asphyxiation but it did). No question that this contributed to her death, but there were other causal factors (age, asthma, heart condition, lack of muscle tone).- Appeals his conviction of 2nd degree murder- Issue of causation: Which test to apply, Smithers or Harbottle?

Reasons - Accused obviously wanted Harbottle (higher threshold, harder to meet)- Court rejected this – language of “substantial and integral” in Harbottle should be reserved for higher moral culpability (1st degree murder), not for all homicides- However, doesn’t like the language of the Smithers test – should use positive terms, like “significant contributing cause”, rather than in Latin terms (de minimis) or using double negatives (i.e. “not insignificant”)- Endorsed language of “significant, contributing cause”

Dissent - Rejected the re-articulation – saw this as changing the test significantly (i.e. going from “not insignificant” to “significant” raises the threshold of causation)- Agrees Smithers causation test should remain – just disagrees w/ new wording

Ratio The causation test in Harbottle stands alone for first degree murder, and s. 231(5) in particular. The lower Smithers standard applies elsewhere (e.g. 2nd degree murder). The Smithers test is re-articulated as “significant contributing

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cause” (instead of using Latin terms/double negatives).

Summary on Legal Causation

Issue Case Ratio NotesStandard for Legal Causation

Smithers (SCC 1978)Accused kicks victim in stomach after a hockey game; he then suffocates on his own vomit. Guilty.

Legal cause is “any contributory cause that is beyond the de minimis range”

No need to be sole cause—so there can be more than one person held liable.

Malfunctioning epiglottis irrelevant—must take victim ‘as you find them’

Does the Smithers standard violate the charter?

Cribben (ONCA 1998)Accused beats victim, but non-life threatening. Victim drowns in his own blood while unconscious.

The Smithers test is constitutional.

-not too vague-mens rea element required will ensure morally innocent are not found guilty.

Standard for Legal Causation re-worded, but not changed?

Nette (SCC 2001) Legal cause is a ‘significant contributing cause’

-thought the Smithers wording was confusing for juries (negative, Latin)-claimed they weren’t changing the test.

Legal Causation standard for 1st

degree murder

Harbottle (SCC 1993) Legal cause is “substantial and integral”

This ONLY applies to first degree murder under s.231(5) b/c of the specific wording which says “the death is caused”.

Thin Skull Shanks (ONCA 1996) Just need to prove causation beyond de minimis, so even if victim died unexpectedly or unforeseeably due to some illness or ‘thin skull’ can still be found guilty.

Could also cite Smithers (malfunctioning epiglottis) or Blaue (religious conviction to refuse blood transfusions)

Intervening Cause Subsequent event/act that breaks the chain of causation An accused’s original act may still be a factual cause, but no longer a “legal cause” (i.e. chain of

causation is broken) Must be a separate, independent, ‘stand-alone’ act Chain of causation NOT broken if the subsequent event:

a) Flows from the initial act;b) Is a response to the initial act; orc) Is dependent on the initial act.

Must be extraordinary, unusual (can’t be reasonably foreseeable)

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In Maybin, Court articulates various approaches/tests to what constitutes an intervening cause at law, but leaves most of discretion to trial judges

R v Maybin (2012, SCC)Facts - Maybin bros get in a fight at pool hall; bouncer intervened, punched unconscious

victim on the back of the head, who later died- Three possible causes of death: 1) punches by Maybin brothers, 2) single punch by the bouncer, or 3) combination of both- Issue: Was the bouncer’s punch an intervening act which broke the chain of causation (Maybin brothers guilty of assault, or manslaughter?)

Reasons - Different approaches to intervening acts – reasonable foreseeability or independent factors – are simply useful tools, not new tests- Helpful in determining whether the accused’s unlawful acts were still a significant contributing cause at the time of death- If the general nature (not specific form) of the act is reasonably foreseeable, then it is not an intervening act- If the act merely created the setting for a third party, acting independently, then the chain of causation may be broken- If the intervening act was a response to the initial act, or a natural event (e.g. tide versus tidal wave), then chain of causation probably not broken

Held The actions were an interrelated series of events, not separate and independent assaults. The bouncer’s act was a direct response to the brothers, and their behaviour was connected in time & place; bouncer’s actions were thus not an independent cause which severed the chain of causation.

Ratio Is the subsequent act or event so strong or overwhelming that the accused’s contributing act is now an insignificant contributing cause? Basically still just asking if this meets the Smithers test (significant contributing cause). Reasonable foreseeability and independent acts can be helpful tools in assessing this (but not strict tests).

Summary: Intervening Acts

Issue Case Ratio NotesHarm caused by person acting in self defence

Pagett (EngCA 1983)

a response of self-defense or an attempt to escape which then causes harm does NOT constitute an intervening act and therefore does NOT negate legal causation of the original actor.

Accused uses GF as shield while shooting at police, police shoot back and kill her. He’s convicted for her death.

Multiple contributing actors lead to the death of a bystander

R v Bhalrue If innocent bystander killed due to the criminal negligence of multiple parties, they’re both liable for the death.

Two people drag racing and hit an innocent bystander.

Indirect legal cause

R. v. S.R.(J) (ONCA

If def’s actions are contributing factor beyond de minimis that

In this case: def. was in a gun fight on busy street in

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2008) caused the person who committed the direct legal harm to act—def will also be guilty.

Toronto. His opponent shot, missed him and killed an innocent bystander. Def guilty of her death.

Refusing treatment on religious grounds after non-deadly injury

Blaue Def liable for death of victim they stabbed, despite the wound being non-life threatening, b/c victim refused blood transfusions on religious grounds.

Def’s actions were “substantial and operating cause”.

Doctor’s turning off respirator of brain dead victim

R v Kitching, R v Adams

Def. still liable because there can always be more than one cause of death.

Whole reason victim was brain dead in first place was def’s fault—so clear connection beyond de minimis

Criminal code provision on intervening acts

s.222(5)(c) If the victim does anything that causes their own death due to threats, violence or deception by the accused, the accused has in law caused the victim’s injuries.

Victim’s conduct is NOT an intervening cause which relieves the accused from criminal liability.

Remoteness An act too remote may be outside the de minimis range, thus no legal causation E.g. A stabs B, B goes to hospital in an ambulance, ambulance crashes and B dies – arguably an

intervening cause & too remote

Statutory Provisions Causation exists at common law but can also be articulated in statutes S. 222(1): Homicide if a person by any means causes the death of a human being

o This provision requires causation S. 222(5): Culpable homicide when a person causes death of a human being, by threats or fear of

violence, or by deception which causes death, or by wilfully frightening that human being (odd – how would that work?)

S. 224: Act/omission resulting in death; prevention of death by proper treatment s. 225: when immediate cause of death is proper or improper treatment. If a person causes

bodily injury that is not itself of a dangerous nature, but from which death results, he causes that death, notwithstanding if the immediate cause of death was improper treatment applied in good faith.

s. 226: acceleration of death s. 227: death within a year and a day [repealed in 1999] s. 228: no person causes death of a human being solely by influence on the mind (i.e. scaring

someone to death) except where a person causes the death of a child or a sick person by wilfully frightening him/her (see s. 222(5)(d)).

Introduction to Mens Rea and Intent

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Actus non facit reum nisi mens sit rea: The act is not guilty unless the mind is guilty.

The “guilty mind” or “fault” requirement has no settled meaning. Parliament used to use words like wicked or depraved; today, there is a movement towards more descriptive mens rea, i.e. specific categories – intention, knowledge, recklessness.

Rationale: The morally innocent cannot be punished. Level of moral blameworthiness must be proportionate to seriousness of the offence Fault principle and harm principle are complementary

Subjective (aka full) mens rea: What was in the mind of the accused in that moment? Intent (also “wilful” or “for the purposes of…”) Knowledge Recklessness Wilful Blindness

Objective mens rea: What would be in the mind of a reasonable person in those circumstances? Criminal negligence (s. 219): “A marked and substantial departure from the conduct of a

reasonable person which shows wanton and reckless disregard for the lives or safety of others.”o Tutton and Waite (split on whether this was subjective or objective)o SCC now says it can be eithero Objective test = much easier to prove

Penal negligence: A marked departure from the conduct of a reasonable person -Hundalo Higher than a civil standard, but lower than criminal negligenceo Applies when you see a word like “careless” in the statute (driving without due care and

attention), or the word “negligence” Strict liability: Once the Crown proves actus reus beyond a reasonable doubt, the accused can

advance a due diligence defenceo Reverse onus held to be constitutional (Wholesale Travel)o Default for regulatory offences (Sault Ste. Marie) – e.g. breaching securities regulations,

environmental offences Absolute liability (no fault): Once the Crown proves actus reus beyond a reasonable doubt,

liability attaches. No defence can be based on an absence of mens rea.o Minor in stigma, minor in penalty –efficiency purposes (e.g. parking offence)o Not permitted when the punishment involves potential loss of liberty (BC MVA)

Determining Mens Rea: EXAM: How would you determine which category for mens rea? Follow these steps: Expressly stated in the Code (words like wilfully, intentionally, knowingly, for the purpose of,

recklessly, carelessly, or negligently) If the Code is silent – turn to the case law for general principles (e.g. Tutton and Waite, for

criminal negligence)

Subjective fault: What the accused actually knew – but objective considerations maybe relevantCommon sense inference: “A sane and sober person can usually be taken to intend the natural and probable consequences of his action.” (Buzzanga)

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Intention versus Motive: Intent = exercising your free will to do something Motive = the ulterior intention which causes that exercise of will

o Motive can be relevant and admissible, but is not required and is not part of the mens rea

o Without motive, there can still be intento But presence or absence of motive can be very important to Crown’s case

Wilfully: Has been taken as the equivalent of intentionally or “for the purposes of” Negligence/recklessness not enough – must be done with intent, i.e. wilfully Comes out of Buzzanga Some provisions define “wilfully” to include both intention and recklessness – careful! Unless there is an exception, wilfully should ALWAYS be taken to include intentionally

Direct intent: With the intent, purpose or desire of bringing about the proscribed harm (e.g. specific intent to kill

Intent here exists regardless of whether the harm intended actually manifested E.g. if someone intended to murder, and didn’t, they are charged with “attempted murder” (the

mens rea was there even if the actus reus was not)

Indirect intent: When the accused acts with the intent, purpose or desire of bringing about something else (an alternate/collateral purpose) but knows or foresees that the proscribed harm is certain or substantially likely to occur (e.g. bomb on plane to destroy cargo – will also kill ppl)

Buzzanga: Emphasizes this is indirect intent (high threshold – certainty, or substantial certainty) Intent is the highest threshold, so this is a high test (more than highly probable) Steane: Court looked for proof of direct intent (i.e. actual, subjective intent to assist the

enemy). Indirect intent was insufficient here. NB: Canadian courts have not followed this! Hibbert: “For the purpose of aiding” = means intent, and captures both direct/indirect

R v Lewis (1979, SCC)Facts Mens rea is concerned with intent (i.e. exercise of free will) not motive (i.e. the

ulterior intention which causes exercise of free will). Motive can be relevant and admissible as evidence, but is not part of the mens rea or the assessment of criminal liability.

Issue Did he intend to assist the enemy?Held This was not the result of his uncontrolled free will. Intent cannot be proved. It is

impossible here to say he intended the natural consequences of his acts simply because he did them.

R v Steane (1947, UK)Facts UK actor employed in Germany at outbreak of WWII – worked for German

broadcasting service during war, but only did this under threats to his family. After war, charged with “doing acts likely to assist the enemy with intent to assist the enemy.”

Issue Did he intend to assist the enemy?

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Held This was not the result of his uncontrolled free will. Intent cannot be proved. It is impossible here to say he intended the natural consequences of his acts simply because he did them.

R v Hibbert (1995, SCC)Facts Accused lured his friend to the lobby and the principal offender shot him. Accused

relied on defence of duress. SCC allowed this and ordered a new trial.Reasons - Meaning of the word “purpose” (liability for a person who does anything for the

purpose of aiding someone to commit an offence)- Purpose in this case is synonymous with intention; “for the purpose of” does not mean he had to actually desire the outcome. Duress cannot negate the mens rea. However, their behaviour might be excused by duress.

R v Buzzanga and Durocher (1979, Ont. CA)Facts Two French co-accuseds wrote up a document with hateful language around

French citizens. Claimed they did so to combat apathy.Issue Was the trial judge wrong in interpreting the word “wilfully” to mean

“intentionally as opposed to accidentally?” (Provision: “wilfully promotes hatred”).Reasons - Here, wifully means “with the intention of promoting hatred”, and does not

include recklessness- Offence included in the Code = strong presumption that full mens rea is required (the word “wilfully” was thus not required since it would have been implied either way, per Prue) – subjective rather than objective mens rea required- Intention versus recklessness (i.e. you do something to produce a certain result, versus you do something to achieve some other purpose but you know there is a risk that you will produce a certain prohibited result and you do so anyway)- Trial judge erred in holding that “wilfully” means only “intentional as opposed to accidental”. This inappropriately focuses on the nature of their conduct rather than the question of whether they intended to produce the consequence of promoting hatred

Sault Ste. Marie: If the offence is a “true crime”, full (subjective) mens rea is required (supported by Buzzanga). If it is a “regulatory offence”, then strict liability applies

True crime: Anything in the Code is presumed to be a true crime An offence not in the Code (e.g. CDSA) – Couts will examine seriousness of conduct/severity of

penalty to see if the offence has a criminal character – if so, true crime

Rebutting the presumption that full mens rea applies to true crimes: Was there a clear intention that Parliament implied a lesser mens rea requirement? (Prue) ADH: s. 218, abandoning/exposing child to death – objective or subjective requirement?

o Presumption of subjective mens rea for true crimes can be rebutted if the language, purpose, context and scheme of the act suggest Parliament intended an objective standard

o 5 categories which rebut the presumption (see below) - EXAM

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o Held: s. 218 is not solely a duty-based offence – doesn’t have the word duty, words like abandon, expose and wilfully omit, suggest a subjective mens rea. The fact that s. 218 is placed with duty-based offences (which can be made out on objective mens rea) does NOT mean s. 218 also requires objective mens rea (Court also considered marginal notes, placement in Code, specific words in provision)

EXAM: Would need to do this kind of exercise on a fact pattern (give meaning to words, provision, statutory interpretation – using reasoning in ADH as a guide/template)

Strict liability versus absolute liability: Presumption that regulatory offences are strict liability (Sault Ste. Marie) – Crown proves actus reus, onus shifts to defendant to prove due diligence

If Parliament wants to create an absolute liability offence, it must do so clearly (and no incarceration can be attached)

Michelle’s Mens Rea Mind Map

1. Subjective Fault Intent

o Includes direct/indirect (looking for certainty/substantial certainty - not highly probable)

Knowledge Recklessness Wilful blindness

2. Objective Fault Criminal negligence (objective test will suffice) Penal negligence Strict liability offences

3. No Fault Absolute liability offences

Strict/absolute liability offences (regulatory/quasi-criminal) Where does it fall?

Look to the provision first If code is silent, what next? If it is a true crime, the presumption is subjective Subjective mens rea can be rebutted - look to ADH - will consider scheme, language

etc of provision Provides 5 categories (try to place within one of these)

EXAM HINT: A good exam question is how to distinguish between these categories + which analytical approach to use.

R v ADH (2013, SCC)Facts Respondent didn’t know she was pregnant, gave birth in Walmart bathroom,

thought child was dead and left him in toilet. Charged with s. 218 (abandoning or

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exposing a child so that the child’s life or health is endangered).Issue Should the fault element be assessed subjectively or objectivey?Reasons (Cromwell)

- Presumed legislative intent that Parliament intends true crimes to have subjective fault elements (Sault Ste. Marie) – mere negligence excluded- Strong presumption can only be rebutted by clear expression of contrary intent- Considers purpose of the offence (to protect children – broad scope of liability, which subjective mens rea must limit), text of the provision (“wilful” is a strong indication of subjective fault)- Categories which rebut the presumption & require objective mens rea:

1. Offences with the word “dangerous” (e.g. Hundal, dangerous driving)2. Offences with the word “careless” (e.g. Findlay, careless storage of

firearms – like above, clearly implies an objectively assessed fault)3. “Predicate” offences (subjective mens rea attaches to one part of the

offence, objective to the other – e.g. De Sousa – only objective fault required for the harm flowing from “unlawfully causing bodily harm”)

4. Criminal negligence offences (s. 219)5. Duty-based offences (s. 215, Naglik – objective fault element)

- Summary: None of these considerations applies here. Subjective fault required.Moldaver (Opinion #2)

- Subjective fault not required; penal negligence is sufficient to satisfy regarding the consequences of abandoning/exposing the child- Mens rea needs to apply to each element of the offence, but some can be objective and some can be subjective – objective is sufficient for the third element (i.e the consequences)- Common sense: consequences must be objectively assessed, otherwise every person could use defences here based on their individual characteristics, and the provision’s purposes would be defeated- Similar to Naglik – s. 215 aimed to establish a “uniform minimum level of care”, meaning duties must be objective (not subjectively) assessed- Not too broad – only applies to three categories of people (those with a legal duty to the child, those who come to the aid of the child, and those who place the child in that situation)- Conclusion: S. 218 is child protection legislation, limited to three classes of people, is a duty-based offence, and penal negligence (objective mens rea) is the level of fault required for the consequences (1 of 3 elements of the offence).

o Penal negligence is still a very high level of fault - not simple negligence - constitutes a marked departure from a standard of care

o Further, someone acting under an honest but mistaken belief is not penalized - this is a complete defence

o However, this test stops short of taking personal attributes into consideration

- Application: ADH honestly believed her child was dead - this was a reasonable belief in the circumstances - thus, she is not morally blameworthy, and is entitled to be acquitted.NB: Same result as Cromwell, but different reasons

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Recklessness and Wilful Blindness

Recklessness: Knows/foresees that proscribed harm may possibly or probably occur (but is not certain to occur, like intent – one rung down)

Accused may not desire the outcome, but if they go ahead and do it anyway, they took a reckless risk

Sansregret: Element of the subjective one who, aware his danger may bring about the prohibited result, nevertheless persists despite the risk

Buzzanga: “The subjective state of mind of a person who sees that his conduct may cause the prohibited result, but takes a deliberate and unjustified risk anyway”

Recklessness as an extension of intention

Wilful Blindness: When someone has become aware of the need to make an inquiry but refuses to make that inquiry – prefers to remain ignorant (Sansregret)

Sansregret: Predates modern laws around consent. He had knowledge that her consent was not sincere the first time, went back again – wilfully blind, made no inquiry. Constitutes “self-deception to the point of wilful blindness”

The law deems knowledge based on proof of failure to inquire Wilful blindness as an extension of knowledge Jorgensen: Accused selling adult videos, didn’t look at content to see if it was obscene or

criminal – “Did the accused shut his eyes because he strongly knew or suspected that looking would fix him with knowledge?

Briscoe: Adds subjective element – did the accused see the need for deliberate inquiry (not just what a reasonable person would see) and then fail to make those inquiries?

Duong: Allowed wilful blindness to substitute actual knowledge in accessory after fact R v Curry (1970s): Guy approached by young man – asked to cash forged cheque – he had NO

suspicion, “just a dolt”, went along with it. Acquitted – morally innocent. Stolen property, polygamy – both include requirement of knowledge (can be replaced with

wilful blindness)

R v Sansregret (1985, SCC)Facts Appellant broke into victim’s house twice (ex-girlfriend); both times, to calm him

down, she held out hope of reconciliation and had sex with him. Trial judge acquitted on accused’s mistaken belief that consent was genuine. (Proceedings only started after 2nd incident – after 1st time, Probation Officer asked her not to report – troubling! This is when women are most at risk of domestic violence)

Reasons Negligence = failure to take reasonable care (objectively measured)Recklessness = sees the risk that his conduct could bring about prohibited conduct, but proceeds nonethelessWilful blindness = sees the need for inquiry but declines to do so because he prefers to remain ignorant

Held Deliberate failure to inquire after first visit – knowledge is imputed.

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R v Briscoe (2010, SCC)Facts Accused helped drive group to crime scene, provided weapon, held victim and told

her to shut up. Said he didn’t want to know what they were going to do and to keep him out of it. Did trial judge err in failing to consider wilful blindness?

Held Yes. Wilful blindness should have been considered.Reasons Wilful blindness can substitute actual knowledge when knowledge is a component

of the mens rea. More than mere failure to inquire – when someone actively and deliberately remains ignorant (i.e. subjectively sees need for inquiry)

R v Duong (1998, Ont. CA)Facts Duong’s friend Lam told him he was “in trouble for murder”. Duong didn’t ask any

questions (didn’t want to know) and hid Lam for 2 weeks. Police raid, charged Lam with murder, charged Duong with being an accessory after the fact.

Reasons Issue was that language in the Coe said accessory must have knowledge of the specific offence alleged (not just generalized knowledge that a crime was committed). Here, Duong didn’t actually know, but also deliberately failed to make inquiries – was wilful blindness enough?

Held Wilful blindness can apply here and replace actual knowledge. Actual suspicion, combined with a conscious decision not to make inquiries, is equated with actual knowledge (both are subjective & are sufficiently blameworthy to justify liability)

To what elements of the actus reus must the mens rea apply?

Sault Ste Marie: Subjective mens rea must be established in regard to “the facts constituting the offence”

Metro News: Minimal requirement is usually knowledge of the circumstances… Pappa John: Subjective mens rea must be proven in relation to ALL of the elements of the

offence (case of sexual assault – he said preliminary consent but she started screaming halfway through – defence of honest but mistaken belief – law has now changed regarding consent)

o Rule of symmetry: Mens rea must apply to every constituent element of the actus reus (like multiplying with brackets)

o Exception: Predicate offences (court requires subjective mens era for the underlying criminal act only, not the specific harm)

De Souza: Unlawfully causing bodily harm required full mens rea for the underlying criminal act, but only objective foreseeability of the risk of bodily harm that is neither trivial nor transitory

o Must be anchor element in the actus reus for which there is personal fault, but doesn’t necessarily extend to EACH element in the actus reus

o Sopinka bases his reasoning on Blackstone (UK, 1700s – not v. convincing)o Predicate offences – only extends to the underlying offence, not to the aggravated

circumstances (makes it much easier for Crown to prove) NOTE: The general rule is symmetry. Any departure must be exceptional, and must be

narrowly applied. But there are exceptions, so this is a strong rule, not a PFJ. We see this in Creighton. General rule is symmetry – exception is predicate offences.

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Criminal Negligence and Penal Negligence

ABOVE: Subjective mens rea. Now we turn to Objective mens rea.

Three kinds of objective fault: Criminal negligence, penal negligence & strict liability

Criminal negligence (s. 219): “Marked & substantial departure from the conduct of a reasonable person which shows wanton and reckless disregard for the lives and safety of others.”

Much more grave than penal/civil negligence Looks to what accused ought to have known, rather than assessing subjective fault Controversy: How individualized can this “reasonable person” be? Should it be personalized

and reflective of our diversity, or would this be too hard to prove (and thus immunize people from liability?)

Tutton and Waite: Both 1989 SCC decisions – 3:3 split on this point

Modified/situational objective test (majority in Creighton, Beatty): “Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal attributes such as age and education are not relevant. The reasonable person, however, must be put in the circumstances the accused found himself in when the events occurred.” (Beatty)

EXAM: Think about the reasonable person test. Should we reform it? The issue is justice for individual accuseds. Uniform application has some benefits (predictability, certainty), but is it fair, in terms of people’s real world situations? (e.g. Gossette benefited hugely, but Naglig did not – young, inexperienced mother, failed to provide necessaries of life – none of this was taken into account).

R v Tutton and Tutton (1989, SCC)Facts Tuttons failed to administer insulin to 5 year old son for religious reasons. He died.

They were charged with manslaughter through criminal negligence (s. 202) & causing death of their son by omitting to provide necessaries of life (s. 215).

Issue Should the test for criminal negligence be subjective or objective?Opinion #1 (McIntyre, l’Heureux-Dube)

- Test should be objective- Negligence has to do with absence of thought – punishes consequences of

mindless action, not a wrongful state of mind- Conduct which “shows” wanton/reckless disregard – not intent or malice –

supports objective assessment of fault- Difference between ordinary criminal offences and criminal negligence is

intent – must keep them separate- But not applied in a vacuum – should still consider accused’s perception of

the facts and whether his conduct, based on that perception, was reasonable (…sounds subjective to me?)

Opinion #2 (Lamer)

- Supports Opinion #1 re: objective test- But when applying objective test, facts particular to the accused such as

youth, mental development & education should be consideredOpinion #3 (Wilson, Dickson, La

- Rejects objective test – too harsh for liability – hard to ensure that the morally innocent won’t be punished

- “Reckless disregard for lives/safety of others” means an advertence and

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Forest) awareness of risk, i.e. subjective standard’- SCC has already adopted subjective approach to recklessness in

Pappajohn & Sansregret- Wilson said it is hugely problematic when you start personalizing the

reasonable person- Thus, part of criminal negligence is proving the mental element of

advertence to the risk or wilful blindness to the risk. This will protect the morally innocent. If Parliament wants to adopt an objective standard, they must clearly do so.

Ratio Judges split over how individualized the “reasonable person” should be. 3 say subjective, 3 say situational objective (reasonable person in accused’s situation)

R v Waite (1989, SCC)Facts Appeal on acquittal from charge of causing death by criminal negligence

(intoxicated accused, driving at high speed, killed four people).Issue Subjective or objective test for criminal negligence? (Companion case to Tutton)Held Split – 3 said objective, 3 said subjective, but that trial judge placed too much

emphasis on it)Ratio Tutton & Waite, companion cases, judges split 3:3 on whether the test for

criminal negligence should be subjective or objective.

R v Gingrich and McLean (1991, Ont CA)Facts President of trucking company + truck driver charged with criminal negligence

causing death – truck’s brakes failed after several days of problems.Held Recent SCC decisions in Tutton and Waite were unclear on proper standard. Will

use an objective standard until SCC clears this up (negligence doesn’t seem to require any subjective intent).

R v Hundal (1993, SCC)Facts Accused charged with dangerous driving causing death. Overloaded dump truck,

drove into intersection on a red light & killed another driver.Reasons - Rejected subjective mental element for driving (driving is automatic and

has little conscious fault – this would be unrealistic).- Modified/situational objective standard which considers the events

surrounding the event (but not personal characteristics) like the circumstances of the accident, traffic, weather/mechanical conditions, etc

- Endorses the situational objective test (but doesn’t go as far as Lamer would in Tutton)

- Explicit words of the provision endorse the modified/situational objective test: “What a reasonable person would observe in the accused’s situation, in all the circumstances”

- Was it a departure from the standard of a reasonably prudent driver?Ratio Applies modified objective standard as fault requirement for dangerous driving

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causing death (not subjective).Defines penal negligence: “A marked departure from the standard of care that a reasonable person would observe in the accused’s situation.”

R v Creighton (SCC, 1993)Facts Experienced drug user, administered heroin to a woman who subsequently died.

He refused to call 911. Charged with unlawful act manslaughter.Issue Is the mens rea for manslaughter subjective or objective? Is the objective

standard unconstitutional?Minority (Lamer)

- Identifies special stigma offences that always require subjective mens rea- Constitutional requirement is that the morally blameless not be punished- Difference between murder/manslaughter is INTENT- Constitutionally required fault element is objective- Supports a modified objective test (must be flexible, adjusted to consider

the capabilities and the “human frailties” of the accused)- But still not a subjective test, though- Human frailties: NOT intoxication/drug impairment – very circumstantial

(e.g. illiteracy only applicable if they couldn’t read a relevant label) – something the accused couldn’t control/manage in the circumstances

- HERE: reasonable person in the circumstances, with Creighton’s drug experience, would have been aware of the risk of death. Conviction.

Majority (McLachlin)

- Manslaughter: Conduct causing death of another person, short of intent to kill (e.g. committing another unlawful act which then causes death, or in criminal negligence)

- Test: objective foreseeability of the risk of bodily harm that is neither trivial nor transitory

- Old test, has stood the test of time- Stigma attached to manslaughter is appropriate (less than murder)- Objective foresight of death (per Lamer) would require abandoning thin-

skull rule, which is wrong. This is a good principle.- Rule of symmetry: is just a rule, not a PFJ, and has exceptions. Thus death

need not be objectively foreseeable – only bodily injury- Deterrence (penal consequences even if only bodily injury was

foreseeable)- Nature of the test: Rejects Lamer’s “modified objective” standard

(personalizes it too much, basically makes it subjective)- Hundal tells us it is NOT unconstitutional to use the objective test for

criminal liability. So how personalized can this test become?- Single, uniform standard of care should be used (not considering factors

that Lamer suggested above) – only exception is incapacity. Otherwise, changes the standard too much (e.g. Naglig, inexperience/uneducated mom, failure to provide necessaries of life – would be held to lower standard, or Gossett – cop, gun, would be held to a higher standard)

- Still, the objective test isn’t in a vacuum: “What would a reasonably prudent person have done in all the circumstances”?

- Conclusion: Here is the analytic framework for penal negligence:

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1. Was the actus reus established (i.e. marked departure from the standard of a reasonable person, in all the circumstances)?

2. Was the mens rea established (i.e. standard of a reasonable person in the circumstances of the accused)?

3. If both made out, then capacity is considered (i.e. did accused lack the capacity to appreciate the risk)?

- HERE: The reasonable person, in all the circumstances, would have foreseen the risk of bodily harm. Thus conviction is restored.

La Forest Prefers subjective test, but knows that isn’t going to be accepted, so sides with McLachlin (i.e. that an act may result in either death or bodily harm is simply fortuitous

Ratio Unlawful act manslaughter requires “objective foresight of bodily harm that is neither trivial nor transitory” (not death). Objective test is used (not modified objective), but still considers all the circumstances (not in a vacuum).Majority: one standard, no individual factors. Minority: objective standard should take into account personal characteristics like age, literacy (per Lamer).

R v Beatty (2008, SCC)Facts Accused charged with dangerous driving causing death (same offence as Hundal).

Crossed line in road & killed people; had been properly, no mechanical failure, didn’t lose consciousness or fall asleep – seems to have simply been a lapse.

Issue Is a momentary lapse/act of negligence sufficient to constitute dangerous driving causing death?

Majority (Charron)

- Must separate civil negligence from penal negligence (which punishes blameworthy conduct, not just conduct that departs from the norm)

- Modified objective test is appropriate for negligence-based criminal offences (requires “marked departure” from norm, and considers actual mental state to a degree)

- Ambiguities of this test from Hundal were later clarified in Creighton: test isn’t personalized (e.g. age, experience and education not relevant) but is properly contextualized (looks at a reasonable person in the circumstances of the accused)

- Restates test from Hundal:1. Acus reus: Accused must have been “driving in a manner that was

dangerous to the public, having regard to all the circumstances”2. Mens rea: Conduct must have been a marked departure from the

standard that a reasonable person would observe in the accused’s circumstances (modified objective test)

HELD: Momentary lapse insufficient to found criminal liability.Minority (McLachlin)

- Actus reus requires a marked departure from the normal manner of driving

- Mens rea is generally inferred from the marked departure in nature of driving

HELD: Momentary lapse not sufficient to found criminal liability (same as above).Ratio Agrees with modified/situational objective test as appropriate to determine

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requisite mens rea for negligence-based criminal offences.

Summary

Crim neg = “criminal negligence” Penal Neg = “dangerous, careless”

Case Facts Issue RatioTutton SCC

Accused refused to give diabetic son insulin on the basis of religious beliefs. Son died. Charged with manslaughter (s.222) through criminal negligence (s.219)

What is criminal negligence?

Is a reasonable person subjective or objective?

But all agree that criminal negligence is “wanton and reckless” or “substantial and marked” looking for a gross departure from what a reasonable person would do. Seriously endangering others.

3/3 split –half want subjective test and half want objective test.

Creighton SCC

Accused, an experienced heroin user, injected victim with drugs and then she died.

Is a reasonable person subjective or objective?

Objective. No individual factors of the accused (short of incapacity to perceive the risk) should be taken into account. BUT you do consider the circumstances that the accused was in—thus slightly modified.

Factors such as age, inexperience, lack of education are NOT to be taken into account.

F.(J.) SCC Does it have to be objective for crim neg?

No. Criminal negligence may be proven by either subjective or objective disregard of an obvious and serious risk to the lives or safety of others.

Hundal SCC

Accused was driving a dump truck, runs a red light, kills victim who proceeded on a green. Charged with s.249 dangerous driving.

What is penal negligence?

Is the test for reasonable person in penal negligence subjective or objective?

“a marked departure from the standard of care that a reasonable person would observe in the accused’s situation”

1) Objective test is applied in the context of the events

2) For driving offences, no personal factors need to be taken into account as licensing requirements ensure a minimum standard.

Beatty SCC

Accused charged with 3 counts of dangerous driving causing death. Killed three people after crossing midline

What the test for a reasonable person in penal negligence?

Modified subjective/objective test: What a reasonable person in the circumstances of the accused would have done. No personal attributes,

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for no apparent reason—no mechanical failure or intoxication.

HELD: Mens rea not made out b/c it was just a momentary distraction—not a marked departure from reasonable conduct.

short of incapacity, of the accused are considered.

Charter Considerations and Review

Minimum mens rea Charter prevents punishing the morally innocent Thus, for some crimes there is a minimum fault requirement E.g. can’t have NO fault requirement (absolute liability) for an offence that attaches any kind of

imprisonment (BC MVA)

Special Stigma Crimes Some “special stigma” true crimes have subjective mens rea as the constitutional requirement

(fairly rare) Such a severe stigma/penalty that to allow anything other than subjective mens rea would

violate PFJs Recognized categories: murder, attempted murder, theft, and crimes against humanity (recently

added in Finta) Probably won’t add many more For all other true crimes, objective mens rea is constitutionally sufficient

EXAM: Know the party provision (s. 21.2): If 2 people form a common intention to carry out the purpose, and either knew or ought to have known that the offence was a probable consequence, is party to the offence.

We read out the words “ought to have known” when dealing with a special stigma offence If asked on an exam about significance of Vaillancourt & Martineau, compelte answer speaks

not just to s. 213, but to s. 21(2) and the reading out of the objective fault element for stigma offences

Also, repeated exam hint: “If in doubt, cite Creighton!”

Vaillancourt v The Queen (1987, SCC)Facts Working with accomplice, armed robbery in a pool hall, Vaillancourt has a knife,

accomplice has a gun, Vaillancourt insists it be unloaded and not used. During robbery, accomplice fires gun, someone dies, he runs away and is never found.

Issue s. 213 constructive murder provision (alone or in combo w/ s. 21, party provision) allowed conviction of murder even if the person had no subjective foresight of the likelihood of death. Constitutional?

Held No. s. 213 has been entirely invalidated by the Court.Reasons - Combo of ss. 213/21 allowed conviction of murder absent subjective mens

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(Lamer – in obiter)

rea (enough that murder occurred during offence & accused had a weapon – intent for murder was then imputed)

- Review of law: for some offences, objective foresight is enough- But, identifies some special stigma offences where subjective foresight is a

constitutional requirement – moral blameworthiness must justify stimga- Murder is a special stigma offence, thus s. 213 violates the Charter- s. 213 is too broad (just requires intention to commit another crime and to

possess a weapon in doing so – no mental element related to murder)- Doesn’t justify attaching the stigma of murder to this

Dissent - Conviction was based on combination of s. 213 plus s. 21 (Crown must prove also that the accuseds had formed a common intention to carry out an unlawful purpose and assist each other

- Parliament clearly considers carrying a weapon an aggravating factor- Was intended to be very harsh – doesn’t breach the Charter

Ratio In obiter, Lamer defines special stigma offences (of which murder is one) which constitutionally require subjective mens rea.

R v Martineau (1990, SCC)Facts Co-accuseds committing a B&E, accomplice goes & kills one of the occupants.

Martineau charged under 213(a) (now 230.a).Held s. 213(a) struck down as unconstitutional.Reasons (Lamer)

- s. 213(a) defines culpable homicide as murder when a person causes death while committing a range of offences – regardless of whether they actually had subjective foresight of death (as long as they meant to cause bodily harm)

- Anomalous – all other murder provisions require subjective foresight- Stigma offences – require proportionality to moral blameworthiness- Murder is reserved for those who intended to cause death (or bodily harm

that they know will likely cause death)- Manslaughter or offences causing bodily harm can deter this behaviour,

not a murder provisionDissent (l’Heureux-Dube)

- Objective foresight is sufficient. If person specifically intended to commit the underlying offence, and specifically intended to inflict bodily harm (per s. 213), then the inexorable conclusion is death is objectively foreseeable

- “Felony-murder” rule is acceptable. Exists in the US. Can’t overemphasize the mens rea and underemphasize the actus reus.

- Misplaced compassion for offenders by branding them “murderers” – not such a huge gap in stigma between murder and manslaughter

- s. 213 doesn’t deal with accidental killings – we are talking about people who already have subjective intent to do two serious underlying crimes – deterrence is very important here

- More deference to Parliament requiredRatio Confirmed the minimum mens rea requirement for murder is subjective

foresight of death (previously held in Vaillancourt but only in obiter). 213 struck down, and analysis also applies to party provisions in s. 21(2).

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Constitutional Considerations re: fault requirementsStigma offences - Constitutionally required subjective mens reaTrue crimes generally

- Usually have subjective mens rea, but it is not constitutionally required

Martineau, Vaillaincourt

- Subjective foresight of death is a constitutional requirement for murder- But objective fault is sufficient for most other non-stigma offences

Durham - Objective fault sufficient for using a firearm in a careless mannerFinlay - Objective fault sufficient for careless storage of firearmsPeters - Objective fault sufficient for wilfully setting fire to certain objectsDe Sousa (1992 SCC) Upheld constitutionality of unlawfully causing bodily harm –

requires subjective mens rea for underlying act & objective foreseeability of the risk of bodily harm that is neither trivial nor transitory

No constitutional requirement that intention extend to the consequences of unlawful acts in general

Parliament is allowed to treat crimes with certain consequences as more serious than crimes without those consequences

Requiring intention in relation to each and every consequence would bring numerous offences into question (manslaughter, agg. assault)

Actus reus and mens rea do not always neatly match up Must be a meaningful mental element regarding the CULPABLE

aspect of the actus reus, but not to each consequenceGodin Uses framework in De Souza – aggravated assault does not require

subjective intent, or even recklessness – objective foresight is sufficient (consequences needn’t be subjectively foreseen)

Hundal - Dangerous driving s. 249 does not require subjective awareness of riskCreighton - Court divided on whether objective foresight of death required for

manslaughter- Majority held subjective mens rea only required for underlying act and reasonable foreseeability of the risk of bodily harm that is neither trivial nor transitory- Big difference between murder & manslaughter in this sense (murder requires subjective foresight of death – manslaughter requires subjective foresight of risk of bodily harm that is neither trivial nor transitory)

Finta (1994, SCC) - Officer from WWII concentration camp- Extends special stigma offences to war crimes- Subjective mens rea required for the crimes against humanity part, not just the underlying offence

Kent Roach: Mind The Gap

Pre-Charter, common law presumption of subjective fault for all criminal offences, and extension of fault requirement to all aspects of the prohibited act (Beaver, Pappajohn)

Post-Charter, subjective fault only required for stigma crimes & need not be established with reference to all aspects of prohibited act

Big gap here Benefits: Courts should be careful about constitutionalizing fault

principles (hard to overturn after) – benefit of a contextual, case-by-

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case approach. Allows Parliament to experiment with negligence and mixed objective-subjective fault.

Problems: People judged by a standard, not by their own perceptions and abilities – hard to ensure negligence standards are applied fairly in a criminal context

Strict liability regulatory offences

- Civil negligence satisfies s. 7 for strict liability offences- Reverse onus is not a Charter violation (Wholesale Travel)

Absolute liability offences

- If it involves the possibility of imprisonment, unconstitutional per s. 7 (BC MVA)

Murder/Manslaughter Manslaughter – killing of another human in culpable ways set out in s. 222(5) – usually an

unlawful act (e.g. assault) or thru criminal negligence Many begin as murder prosecutions that fail (Crown cant’ establish subjective foresight of

likelihood of death) Penalties are very different (murder = automatically life imprisonment; no minimum for

manslaughter, except where weapon is used, then 4 year minimum) Fault requirements for manslaughter: must be a mens rea for the underlying unlawful act

(which cannot be an absolute liability offence) and an objective foreseeability that the unlawful act gives rise to a risk of bodily harm that is neither trivial nor transitory. This was established in Creighton, and its constitutional validity was upheld in Vaillancourt and Martineau

McLachlin in Creighton: This fault requirement for manslaughter may not result in perfect symmetry, but that’s okay. Old test – shouldn’t change it lightly

o Stigma is appropriate; unintentional killing of another human – less than murdero Penalties for manslaughter much more flexible – appropriate since it can come up in a

number of ways, many levels of moral fault, etc (plus unintentional, so penalties should be less than murder)

o Deterrence – i.e. if you do something and results in death, even if you only foresaw bodily harm, you’re still responsible

o Keeps in line with thin-skulled ruleo Easier for judges (hard to distinguish between foreseeability of risk of bodily injury

versus death)

Absolute and Strict Responsibility

Strict Liability Created in Sault Ste Marie –presumption of strict liability for all public welfare and regulatory

offences (before this, only 2 choices – full or absolute) Crown proves actus reus BRD, acc’d is then guilty UNLESS they can prove on BOP that they acted

with reasonable care & due diligence or a reasonable mistake of fact Reverse onus held to be constitutional in Wholesale Travel (efficiency arguments, regulatory

context is different, not much stigma, to hard to put burden on crown)

Absolute Liability Re MVA: Absolute liability unconstitutional if it carries any possibility of imprisonment Very rare. Now strict liability are presumptions for regulatory offence – absolute liability exists

but as an exception

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Crown proves actus reus BRD, and acc’d is guilty no matter what Only exists if Parliament makes it CLEAR absolute liability was intended – can make inference

only if minor and no stigma (e.g. parking ticket) Levis: If no express words of mental fault, then presumption of strict liability

o Absolute liability ONLY if it was clearly intended based on: 1) overall regulatory pattern of the statute, 2) subject matter of the legislation, 3) importance of the penalty, 4) precision of language used (most important)

Pontes: Can create absolute liability via clear implication – if leg. provision in question eliminates the defence of due diligence, then it is an absolute liability offence

Absolute & Strict Liability - CasesBeaver v The Queen (1957, SCC)

Facts: Acc’d & accomplice sold cop a drug, acc’d thought it was sugar Held: Statute = no mens rea req, suggested absolute liability, but had

punishment up to 6 months – court said Parliament could do this, but wording would have to be absolutely clear

Possibility today is unconstitutional Dissent: Severe punishment, but must respect legislative intent

R v Pierce Fisheries (1971, SCC)

Facts: Acc’d had undersized lobsters, contrary to regulation – no mens rea requirement, thus absolute liability

Held: No mens rea requirement, thus absolute liability (meant to protect lobster from depletion = important)

Dissent: The crime is possession, which can’t happen without knowledge – must be not guilty

R v Wholesale Travel (1991, SCC)

Distinction between crimes and regulatory offences, i.e. conduct that is otherwise lawful but prohibited in the public interest Crimes = punishing blameworthy past behaviour Reg. offences = deterring wrongful future behaviour – about

consequences rather than morally blameworthy conduct Reg. offences are less blameworthy – based on reasonable care

standard, not moral/criminal fault Conduct isn’t inherently wrongful, but if unregulated the activity

will harm public – shifts to broader societal interests Regulatory offences are necessary for our protection, effective

functioning of society, allows govt to implement policy, etc Essential difference: can have no mens rea for regulatory offences,

whereas there must be mens rea for true crimes Discussed Sault Ste Marie: introduced strict liability as middle

ground (recognized important objectives of regulatory offences while mitigating harshness of absolute liability)

Issue here was over false advertising. In the regulatory sphere, people choose to engage in regulated activities – must accept consequences, i.e. minimum standard of care, significant penalties must be available b/c of potentially disastrous results (Chernobyl!)

Govt must be allowed to pursue important social ends thru public welfare legislation

Would be unfair to leave Crown burden of proving facts largely within the knowledge of the accused (without this, would make it

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impossible for Crown to prove regulatory offences, and thus impossible for govts to implement public policy thru regulation)

Simply put, "the enforcement of regulatory offences would be rendered virtually impossible if the Crown were required to prove negligence beyond a reasonable doubt." Proof of reasonable care falls within the realm of knowledge of the accused - they are in the best position to bring forward evidence relevant to the question of due diligence.

Ratio: Upholds strict liability distinction/reverse onus in Sault MarieR v Sault Ste Marie (1978, SCC)

Mens rea – main dif. b/w criminal & regulatory offences Absolute liability (AL) = controversial (must balance protecting public

w/ not punishing morally blameless) Arguments for AL:

Protecting society requires high SOC, admin efficiency, usually small penalty/stigma, important social ends require this

Arguments against AL: Violates fundamental principles of penal liability, injustice of

conviction can lead to disrespect for law, penalties not so minor today, maybe even imprisonment

Facts: City charged with dumping materials into water Looks for middle ground b/w full mens rea and absolute liability to

achieve goals of public welfare while not punishing morally innocent Fair that all Crown must do is prove actus reus, then it is open to def

to prove due diligence (since facts will be particularly in their knowledge, esp. if case of pollution by large/complex corporation)

Thus, creates three categories:1. Crimes: Full mens rea must be proved (true crimes)2. Strict liability: No mens rea – Crown must simply prove actus

reus, then acc’d can raise defence of due diligence (i.e. that he took all reasonable care)- Presumption that public welfare offences fall into this category

3. Absolute liability: Guilty by actus reus alone, no defence- Only allowed if Parliament has made it CLEAR this was intent- Primary considerations whether offence fits here: 1) overall regulatory pattern of legislature, 2) subject-matter of legislature, 3) importance of penalty, 4) precision of the language used

Held: Subject matter is pollution, i.e. great public concern = public welfare offence (not true crime, thus no presumption of mens rea). Strict liability is best.

Reference re BC MVA (1985, SCC)

MVA s. 94(2) = absolute liability offence with imprisonment penalty Held: Absolute liability and imprisonment cannot be combined Analysis: Discussion of PFJs (found in basic tenets of our system)

PFJ = morally innocent cannot be punished Absolute liability offends this if it could violate s. 7 rights Basically, AL offences always violate s. 7, but some can be saved

under s. 1 if in public interest – as long as don’t violate s. 7 rights Administrative expediency is a main argument for AL offences

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Practice Problems What does “fraudulently” and/or “without colour of right” mean? Indictable suggests true crime Flag ALL the issues (constitutional or not), go through all the different options if any confusion

Defences

Air of Reality Once the Crown proves actus reus, mens rea and concurrence, the case is over UNLESS there is

some evidence of a defence. The Crown doesn’t have to prove that all defences don’t exist beyond a reasonable doubt The Crown only needs to disprove any defences for which there is evidence. This evidence can arise from the Crown or Defence. Evidence must have an “air of reality” before it can be considered. “Air of Reality” = sufficient evidence, if it were believed, to constitute the defence in question.

Cinous SCC 2002 Once there is an “air of reality” the Crown must prove beyond a reasonable doubt that the

defence doesn’t exist. There are a few exceptional defences where the onus is shifted to the accused.

Mistake of Fact Works to negate the required mens rea for one or all elements of the actus reus. Thus it is a ‘mens rea’ defence If the offence requires subjective mens rea, then the accused cannot have the requisite mens

rea if they honestly are mistaken about an essential element of the offence. i.e. they honestly thought the property they were taking belonged to them.

For FULL MENS REA crimes, need only be subjectively honest, not objectively reasonable. However if the offence requires an objective mens rea (crim neg, penal neg, regulatory offence)

then the mistake of fact must be both honest and reasonable. See sexual assault for application.

Mistake of Law/Ignorance of Law

s. 19 CCC: Ignorance of the law is no excuse for committing that offence.

Social ordering/public policy: we expect everyone to know the law But can be very harsh/unjust (e.g. Molis – producing substance which became illegal, Jones –

legitimately didn’t think rules to bingo applied on reserve) Seen as unfair – whittled down in a number of ways (below) Major exception to this rule is officially induced error

Mistake of Fact/Mistake of Law – tempering the harshness of s. 19 Mistake of law is NOT a defence Mistake of fact or mixed law/fact IS a defence

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Historically, mistakes of civil law seen as mistake of fact (way for courts to get around harsh rules)

Defence if regulation/law wasn’t properly published in the Gazette “Without colour of right”: an honest but mistaken belief that you have a right, at law, to take

the thing (mistake of law but you could still run the defence here because you were mistaken about your right at law – i.e. mistake as to fact) – see Howson

Inconsistent area of law – won’t be on exam

R v Howson (1966, Ont. CA

Facts: Acc’d towed car, believed he could hold it til ticket paid, charged with thef

Held: s. 19 does NOT affect theft – “without colour of right” = broadly construed, defence if he acted under genuine misconception

R v Docherty (1989, SCC)

Facts: Acc’d charged w/ breaching his PO, but offence wording included “knowledge” – he claimed he was unaware of the offence

If knowledge is a component of the mens rea, then absence of knowledge may be a good defence (s. 19 doesn’t affect this)

Held: Acquitted. This situation is an exception (Parliament then amended the offence to delete the req. that the breach be wilful

Jones & Pamajewon v. The Queen (1991, SCC)

Facts: Acc’d charged with operating unlawful bingo on reserve Held: Acc’d was mistaken in their belief that CCC didn’t apply to

activities on reserve. This was a mistake of law, not fact. No defence.

R v Prue and Baril (1979, SCC)

Facts: Acc’d charged with driving while licence was suspended Held: His lack of knowledge re suspension was a question of fact not law

R v MacDougall (1982, SCC)

Facts: Was appealing conviction re: driving MVA, licence was cancelled but he thought he could drive during appeal process

Held: Mistake of law, not fact. Distinguishes Prue & Baril

Defence of Officially Induced Error HINT – MIGHT BE ON EXAM Error made because you relied on a representation by an official Leading authority – SCC unanimously confirms defence in Levy Requirements:

o Defence of general application (i.e. to both regulatory and CCC offences), must be proved on BOP

o Decision up to judge, not juryo If proven, is a stay of proceedings against accused (not an acquittal)o Importance of objective reasonableness (of advice and reliance on it)o See 6 required steps and numerous factors below in Levyo La Souveraine: recent SCC case – advice can be active or silent (i.e. lack of objection) –

courts are being generous with this law Criticisms:

o Why not acquittal (instead of SOP?)o BOP shouldn’t be on defendant to have to prove (would this reverse onus burden

survive a Charter challenge? Michelle says maybe not…)o This defence is a work in progress, but is on its way. Young, evolving defence.

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o EXAM: James Ohler and Winston Blackmore: polygamous from Bountiful who, arguably, practiced polygamy for decades, at least in part, on reliance on representations made by the then-AG, Allan McEachern (1982-83) that s. 293 of the CCC was not compliant - was in breach with religious freedom. But now we have an advisory that says it is constitutional - what do we think about officially induced error here? Would we, as Crown, charge on those pre-reference years, or would we limit it to a post-reference indictment?

o It was not just a statement made, but a statement backed up by decades of non-prosecution - arguably then what they were doing was okay

o Should they have been allowed? Do they have a defence? Likely on exam. Run argument, discuss criticisms, whether there can be reasonable reliance here.

Molis v The Queen (1980, SCC)

Facts: Acc’d manufacturing MDMA, was legal when he began but became illegal. He argued due diligence.

Held: SCC rejected (due diligence not available here)Forster v The Queen (1992, SCC)

Court affirmed Molis – “honest but mistaken belief” regarding legal consequences of one’s actions is NOT a defence, even if no negligence

Seems harsh! Changed today with officially induced error…R v Cancoil (1986, Ont. CA)

Facts: Safety inspector examined/approved equipment - turns out was actually unsafe

Held: Court accepts officially induced error Cited MacDougall , which pointed to need for this defence Complex society, lots of govt involvement, reliance on govt officials Defence available for violation of a regulatory statute if acc’d reasonably

relied on erroneous advice of official responsible for administration or enforcement of that particular law

Must be a) reliance and b) that reliance must be reasonable Factors for reasonableness: efforts to ascertain proper law, complexity

and obscurity of law, position of official, and clarity of advice given This defence doesn’t CONDONE an illegality – simply recognizes that

advice was illegal and excuses actor who relied on itR v Jorgensen (1995, SCC)

Facts: Did accused “knowingly” sell obscene material? Majority: Acquitted based on no mens rea, i.e. “knowingly” (didn’t

address officially induced error b/c it wasn’t argued) Minority (Lamer): Recognizes officially induced error as exception to the

general rule – results in SOP, prevents punishing morally blameless Ignorance of law is an old rule and a good one (prevents people becoming

laws unto themselves), but there must still be exceptions occasionally Differentiates due diligence from OIE (full defence v. excuse, etc) Complex world, extensive regulation – can’t expect everyone to know all

the laws. This exception is acceptable Due diligence only applies to regulation, but OIE could apply to regulatory

offences & true crimes alike (but less likely to succeed for highly morally blameworthy true crimes)

Sets out 6 part framework (adopted below, almost identically) Summary: This is an excuse, not a full defence, which can only be raised

after Crown has proven all elements of the offence. Concedes wrongness

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of action but says under the circumstances, accused shouldn’t be punished. SOP rather than acquittal. Will only happen in clearest circs.

Rather than acc’d doing something which entitles him to acquittal, it is the state which has done something to disentitle him to a conviction

OIE could apply to the facts of this caseLevis v Tetrault (2006, SCC)

**AUTHORITY**

Facts: Company charged w/ not paying registration fees on vehicle, but had been told by prov. insurance agency that they’d receive renewal notice 30 days before expiry – notice never arrived

Held: Adopted for the first time the defence of OIE Used Lamer’s framework, justification of this defence, and his analogy to

entrapment (i.e. that the wrongfulness of the act is established, but because of the circumstances, the person who committed it should not be held criminally liable – leads to SOP rather than acquittal.

Six step framework:1. That an error of law or mixed law and fact was made;2. That the person who committed the act considered the legal

consequences of his/her actions (can’t just assume your conduct is permissible – this req. acts as an incentive to seek advice);

3. That the advice obtained came from an appropriate official;4. That the advice was reasonable in the circumstances;5. That the advice was erroneous; and6. That the person relied on the advice in committing the act and that

the reliance was reasonable (only difference/addition from Lamer). Reasonableness: Both advice itself & reliance on it must be objectively

reasonable Factors: efforts made by accused to obtain info, clarity/obscurity of the

law, position/role of official, and clarity, definitiveness and reasonableness of information given

Held: OIE was not made out here (respondent knew date when fees would be due and when reg. would cease to be valid – should have been concerned that it didn’t receive a notice; instead, it did nothing. Conditions 2 & 6 missing – didn’t rely on advice since none was given)

Jorgensen and Levis leave two questions: 1. Is a SOP more appropriate than an acquittal?

- Analogy to entrapment might not be appropriate (v. dif. levels of moral culpability; here, acc’d likely acted in a morally appropriate fashion and deserves an acquittal)

2. Should burden be on accused of bearing the onus of proving the defence on BOP? If it is a strict liability offence then maybe (because acc’d also has to establish due diligence on a BOP). But if it is a criminal offence, with a presumption of subjective mens rea, why shouldn’t normal criminal standard of BRD apply?

Intoxication

General: Defence of intoxication challenges the mens rea requirement – i.e. accused lacked the guilty

mind requirement by reason of intoxication (drugs/alcohol) Onus on the defendant to show some evidence of this – “air of reality” test

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Many crimes involve intoxication (drug use, alcohol, or both) Logic (intoxicant can negate mens rea or voluntariness requirement in actus reus) versus policy

(law should deny defence for self-induced intoxication) Does not cover circumstances where:

o Someone gets intoxicated in order to commit an offence (Dutch courage)o Drunkenness is part of the actus reus (e.g. driving while drunk - R v Penno)

Intoxication was historically treated as an aggravating factor

Specific Intent versus General Intent Offences

“...specific intent offences require the mind to focus on an objective further to the immediate one at hand, while general intent offences require only a conscious doing of the prohibited act.” – R v. Daley, 2007 SCC

Controversial distinction (some people say there is no rational reason for this) Per George: general intent offences are done for an immediate end (though intentional and not

accidental, may still be purely physical products of momentary passion). Specific intent are acts done with a specific ulterior motive – intention to further an illegal object, preconceived, deliberate

Specific Intent Offences General Intent Offences- Murder- Breaking & entering, with intent to

commit an indictable offence- Touching a child for a sexual purpose- Theft- Assault with intent to resist arrest- Robbery- Possession of a weapon for a purpose

dangerous to the public peace

- Manslaughter- Assault, assault causing bodily harm &

aggravated assault- Unlawfully causing bodily harm- Sexual assault- Mischief- Pointing a firearm- Impaired driving

D.P.P. v. Beard (1920, House of Lords)

Facts Case relaxing traditional rule that voluntary drunkenness was a vice, aggravating factor, no defence to a crime.

- Represents beginning of changing attitudes re: intoxication- Adopted by SCC in 1931

Rules 1) Intoxication could be a ground for an insanity defence if it produced a disease of the mind.

2) Evidence of drunkenness which renders accused incapable of performing the specific intent essential to constitute the crime should be considered when proving whether accused had the requisite intent.

3) Evidence of drunkenness falling short of capacity to perform specific intent (i.e. just being drunk and more likely to become violent) is not a defence – does not rebut presumption that a man intends the natural consequences of his acts.

Ratio Allows the defence of intoxication to apply to specific intent offences (drunkenness

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isn’t an excuse, but may mean the intent for a specific crime wasn’t formed)

Beard Rules #1: Did drugs/alcohol produce a “disease of the mind”?- If yes – consider application for NCRMD declaration under s. 16 CCC- If no – go to rules #2 and #3 (and ask whether specific or general intent offence)- NB: Scope in this area seems to be narrowing (e.g. in 2011, SCC held that cocaine-induced

psychosis is not a disease of the mind for the purposes of this defence)

Beard Rules #2 and #3: Did acc’d lack capacity to form specific intent by reason of intoxication?- Questions around language of capacity in response to this- Need not have been wholly incapacitated due to intoxication – rather, that they did not have

that specific intent on that occasion- NB: Crown will usually make a broad indictment. That way, if they can’t prove BRD that the

accused had the specific intent for the offence, they might still be convicted of a lesser, included general intent offence (e.g. NG of murder but guilty of manslaughter)

Questions coming out of the Beard rules:

- What is meant by “capacity”?- Do we mean the acc’d lacked capacity by virtue of brain science, or simply that they didn’t have

that specific intent?- IN SUM: The accused needn’t have shown that they were TOTALLY incapacitated by

drugs/alcohol (i.e. that they were unable to form any intent whatsoever) – simply that they did not have that specific intent for that specific offence

- This important distinction was clarified in Robinson (below)- Robinson (1996, SCC): Important jury instructions regarding the Beard rules

o Before a judge charges jury on intoxication, judge must be satisfied that intoxication might have impaired the accused’s foresight of consequences (i.e. specific intent) sufficient to raise a reasonable doubt

o Once a judge is satisfied of this threshold, he must then charge the jury that the issue they must decide is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent

o Thus, jury must be convinced beyond a reasonable doubt that the acc’d had the requisite intent (not capacity to form that intent)

o “It’s not if they COULD have the intent, it’s if they DID have the intent” - Ibrahim

R v George (SCC, 1960)

Facts Acc’d violently manhandled victim, stole $22, drunk. Remembered hitting a man but couldn’t remember anything else.

Reasons General intent = acts done to achieve an immediate end (are intentional, i.e. not done accidentally, but may still be purely physical products of momentary passion)Specific intent = acts done with specific/ulterior motive and intention of achieving or furthering an illegal object (deliberate steps towards an illegal goal)EXAMPLE: A drunken man’s inability to perform the specific intent to kill may lessen an offence from murder to manslaughter.

Held Common assault is a general intent offence (“intentionally” just means intentional

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vs. accidental application of force), and no plea of insanity, thus defence of intoxication cannot apply. Acc’d guilty.

Ratio Affirms that defence of drunkenness can apply only to specific intent offences.

R v Daviault (1994, SCC)

Facts Acc’d = chronic alcoholic, charged w/ sexual assault of an elderly lady. His blood alcohol ratio would kill a normal person. Extreme intoxication. Blackout, state of disassociation/automatism – no memory or control over his actions.

Defence counsel argued that defence of intoxication should be available (even though he was charged w/ sexual assault, a general intent offence)

- Argued this defence should be available where intoxication is so extreme as to wholly negate mens rea, even the low level req’d for general intent offence

Majority Defence of intoxication can apply to general intent offences, where intoxication is so extreme as to be akin to automatism or insanity (wholly negates mens rea)

Rejects guilty by proxy: Mens rea is essential to our criminal law. We cannot substitute the mens rea to become drunk for the mens rea of the offence – this would be an egregious Charter violation

Voluntary intoxication is not a crime There must still be a link between the minimal mental element and

the prohibited act (the mental element for self-induced intoxication cannot substitute this)

Moral blameworthiness: the special stigma offences requiring subjective mens rea are specific intent offences, thus intoxication could be a defence there – guilty by proxy here doesn’t offend our rules around proportionality of punishment to moral blameworthiness

To deny that even a minimal mental element is required would drastically offend the Charter

Extreme/rare level of intoxication; can be an exception to the general rule (that intoxication isn’t a defence to general intent offences)

Marked departure from previous law related to general intent offences - Acc’d must prove on BOP that their intoxication was at this extreme level

Dissent Guilt by proxy: the mens rea of voluntary intoxication can substitute as the mens rea for the general intent offence (majority specifically rejected this)

This would violate the rule of symmetry (i.e. no symmetry between mens rea and actus reus) – but doesn’t violate any of the PFJs

Drunkenness should not be a defence to ANY general intent offences Policy considerations: Protection of public – people shouldn’t have a better

chance at an acquittal by being more drunk. Intoxication should only be a defence here if it leads to mental disorder (s. 16)

s. 33.1

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Daviault: Very controversial, huge public outcry (you are not guilty of a rape charge because you are really really drunk?)

Parliament quickly enacted s. 33.1 Long preamble: Gravely concerned about violence in society, particularly on women and

children, and concern that self-induced intoxication may be used to excuse violenceo Scientific evidence that most intoxicants don’t cause person to act involuntarilyo Moral view that people be held responsible for their criminal actionso Emphasizes the standard of care that we all owe each other to not get drunk and act

dangerously – if we do, we are held criminally at faulto Basically, asserted in that this was the moral, responsible & scientifically backed

response This provision removed availability of Daviault defence (i.e. self-induced intoxication) for general

intent offences if:1. Intoxication was self-induced, and2. Crime involves personal violence (“interfering with bodily integrity”)

Thus didn’t wholly remove the defence, but if the offence includes an element of assault or any interference (or threat thereof) with the bodily integrity of another person

Sided with guilty by proxy (minority in Daviault), despite majority’s clear statement that this is unconstitutional

Has left a very confused/difficult state of the law – undoubtedly a challenge coming!

RED FLAGS re: s. 33.1 and the defence of intoxication (Exam):

1. Application: Courts in Ontario say this provision is invalid, while BC courts accept this. PROBLEMATIC – leaves an unequal application of the law in Canada

You could be guilty in Ontario, but not in BC, on the same set of facts? Ripe for a constitutional challenge

2. Proof: Can you prove what is required to make out this offence, i.e. intoxication? Claims of intoxication are much easier asserted than proven Client may come to you months after the event (no opportunity for breath or blood

samples, no corroborating witnesses, etc) You may only have the word of your client – and if he/she was asserting intoxication,

how reliable is their evidence? Do they even know what they consumed? (Street drugs often laced) “Practical gap” b/w the law and the reality

3. Disease of the mind: Very recently, SCC held that “disease of the mind” excludes mental states brought about by voluntary intoxication (Bouchard-Lebrun, 2011)

Psychosis is usually the result of complex neurobiology & external stimulants – i.e. drugs and mental disorders operating together

If you don’t have evidence of an underlying mental disorder, you will fail here

4. The Daviault “fiction”: Is the level of intoxication described in Daviault even real? Some experts claim this “extreme intoxication akin to automatism” to say that, on a

scientific level, this claim cannot exist Per Michelle, this extreme level of intoxication probably doesn’t exist

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What about this entire branch of law that has developed under Daviault? If based on fiction, will it become hollow/a relic, or will it evolve?

5. The constitutional question: Can s. 33.1 survive a constitutional challenge? There is certainly a concern about the correlation between alcohol abuse and violence

towards women and children If alcohol-induced automatism doesn’t exist, then the mischief this law sought to

remedy doesn’t actually exist But can there be a correlation between illegal drugs and ensuing psychosis, and the level

of intoxication as to automatism? How would the Oakes analysis work here? Some people say rather than guilty by proxy per s. 33.1, we should have a new offence –

criminal intoxication (i.e. drinking to the point of dangerousness to others – if you get so impaired, you must be guilty for the act)

Others reject this – too much focus on fault, not on harm And what about sentences? Compelx questions – no clear answer E.g. of Cameron Capozzi (news article on slides): extreme intoxication, killed mother,

pled to lesser/included offence of manslaughter. Michelle speculates they were threatening to run a Charter challenge to s. 33.1 and the Crown thus accepted the plea bargain (which they had earlier refused)

Vaillancourt said substitution of fault elements is okay, as long as they are functionally equivalent

Majority said guilty by proxy violates both s. 7 and s. 11(d), and while the Court often allows violations of s. 11(d), a violation of s. 7 has NEVER been saved under s. 1 – would it be saved here?

Further, what if the intoxicant made behaviour involuntary, meaning a conviction would be possible not only in absence of the fault element but also the actus reus?

Michelle’s Intoxication Flowchart

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Did drugs/alcohol produce a “disease of the mind”?

If yes, consider application

for NCRMD declaration under s. 16 Cr. C.

Is accused charged with specific intent offence?

If yes, can Crown prove BRD that accused had actual specific

intent?

If no, not guilty of specific intent offence but guilty of

lesser, included general intent offence.

If yes, guilty of specific intent offence.

If no, per Daviault, can the accused prove BOP the lack of

general intent by reason of extreme-intoxication?

If yes, not guilty of general intent offence subject to application of s.

33.1 Cr. C.

Per s. 33.1 Cr.C., does offence involve personal violence, and was intoxication self-induced?

If yes, guilty of general intent offence, subject to constitutional

challenge.

If no, not guilty of general intent offence.

If no, guilty of general intent offence.

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Mental Disorder

This defence is largely governed by statute: s. 2: Definitions provision (incl. “mental disorder” & “unfit to stand trial) s. 16: Defines legal test/standard for the defence of mental disorder (“insanity defence”) xx.1: Governs disposition/procedural aspects where mental disorder is at play

Fitness to Stand Trial

Fundamental principle of our criminal law that the acc’d is entitled to be physically and mentally present at their trial

If acc’d is not mentally fit to stand trial, crim proceedings are postponed until he/she is NB: Fitness to stand trial is a procedural inquiry, not a defence. Focus is on accused’s state of

mind at the time of the proceedings, not at the time of the alleged offence.

Issue Section/ Case

Ratio Notes

What is unfit to stand trial?

s.2 Unable on account of mental disorder to conduct a defence, or to instruct counsel to do so, and in particular, unable to on account of mental disorder to:

a) Understand the nature of the proceedings

b) Understand the possible consequences of the proceedings, or

c) Communicate with counsel.

Has been more narrowly construed by the court (hard to satisfy the branches of this test)

What is a mental disorder?

s.2 “disease of the mind”

This has usually been given a broad, generous interpretation (easy to get a condition to fit into this definition – includes anything from psychotic disorder to epilepsy).

See definition of this statement under the insanity defence section below.

Usually been given broad, generous interpretation

Test for fitness to stand trial

Whittle (1994, SCC)

“limited cognitive capacity to understand the proceedings and communicate with counsel”

NB: Meant to balance objectives of the fitness rule with the constitutional right of the accused to choose his own defence & have a trial within a reasonable time.

The accused does not need to be capable of making beneficial or rational decisions for themselves, or exercise analytical reasoning when making choices.

EXAM: Very low standard. What do you do as counsel when client is struggling w/ mental health & doesn’t trust you? How does our

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system treat self-reps in this case? Room for law reform?

Presumption of fitness

A party is presumed to be fit, unless contrary established on BOP by party raising the issue

What is the burden of proof?

s.672.22; 672.23(2)

The party raising the issue must prove on a balance of probabilities

The prosecutor has a duty to raise this if they believe the accused is unfit.

When can it be raised?

s.672.23 Any stage of the proceedings prior to verdict. If there are reasonable grounds the judge shall order that the issue of fitness be tried.

When shall the issue of fitness be tried?

s.672.25 Judge can postpone until after the Crown’s case at the preliminary inquiry or trial, to ensure the Crown has a prima facie case before trying the issue of fitness.

If Crown doesn’t have a prima facie case, the accused will be discharged/ acquitted and no fitness trial will be held: s.672.30

Who tries? s.672.26 Judge before trial, judge or jury during the trial depending on the type of trial.

evidence s.672.11 to s.672.19

A judge may order a psychiatric assessment of the accused in order to assist in determining the accused’s fitness.

found fit? s.672.28 The criminal proceedings will proceed. Although it can always be raised again if there is a material change in the accused’s state of mind

found unfit? s.672.54 (c); (b); 672.58 to 672.62

i) be detained in custody in a hospitalii) be discharged into the community subject to conditions(ii) be subject to a compulsory mandatory treatment order of 60 days in the hospital or community where there are reasonable medical grounds to believe a treatment order will render the accused fit

EXAM: Problematic? Drug him up until he’s ready to be tried, and then carry on?

NB: If person is not likely to become fit, Crown may elect to stay the charge (not in Code, but does happen).

The disposition under (i) and (ii) must be automatically reviewed every 12 months while they remain in force: s.672.81

If the accused is found unfit and still untried after two years, the court must hold an inquiry (every two years) to determine if there is sufficient evidence at that time to put the accused on trial. If not, the judge shall acquit: s.672.33(1) and (6)

What if self- s. 672.24 If acc’d is self-represented, court will appoint Counsel appointed on the

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rep? counsel. FITNESS question only (not rest of trial)

What if acc’d not likely to become fit?

Demers (2004, SCC)

Proceedings against an acc’d found unfit to stand trial may be permanently stayed if the person is not likely to ever become fit & doesn’t pose significant threat to public.

Codified as a result of this decision in s. 672.851

How the Defence Works

Statutory defence, governed by s. 16: available to accused persons who, by reasons of mental disorder, lack the guilty mind requirement to support a conviction.

Exemption: It is really an exemption from criminal liability, rather than a defence. Rationale: Not “morally voluntary conduct”. If unable to distinguish between right and wrong,

then should not be subject to criminal liability, culpability & stigma.

Issue Case/Section Ratio NotesWho can raise the mental disorder defence?

Swain (1991, SCC)

(a) The insanity defence may be raised during the trial by the accused; or

(b) During the trial by the prosecutor IF in the trial judge’s opinion the accused has somehow put his or her mental capacity for criminal intent in issue; or

(c) By EITHER the accused or the Crown after the trier of fact has concluded that the accused was guilty of the offence, BUT before a verdict of guilty is formally entered

- Bifurcated process: First, determine if the person is even guilty – then address whether they can be held criminally responsible

- Note: Also struck down the result that a finding of NCR would result in indefinite, automatic detention (see below)

- For option (b) this is when the accused raises some kind of defence about incapability i.e. automatism, so they are bringing in to question their own mental state.- Old CL rule was that the defence could be raised against the accused’s wishes- Held this was unconstitutional and replaced with 3 rules (see ratio)- Safeguards the accused’s right to control his defence while also balancing protection of public

Dissent (Wilson): Crown shouldn’t be able to introduce any evidence of insanity during the trial. Infringes accused’s right to control his defence, discriminates against mentally disabled people, denies them autonomy, and reinforces negative stereotypes.Instead, suggests insanity can ONLY be raised at the conclusion of the trial after a finding of guilt.

What is the burden of proof of the defence?

M’Naghten (1843, HL) – Codified in s.

(1) Ever person is presumed not to suffer from a mental disorder so as to be exempt from

- Seminal case in this area- Established the presumption of sanity, the burden of proof (on the

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16(2), (3) criminal responsibility by virtue of subsection (1), until the contrary is proved on a balance of probabilities

(2) Must be proved the acc’d didn’t understand the nature or quality of his behaviour, etc

(3) The burden of proof is on the party that raises the issue.

party raising the issue), and language which is mirrored in s. 16 (i.e. that acc’d didn’t understand nature/quality of his behaviour or know it was wrong)

Is the burden of proof constitutional?

Chaulk (1990, SCC)

Presumption of sanity in s. 16(4) and reverse onus violates the presumption of innocence in s. 11(d) BUT is justified under s. 1.

- Sanity is essential for guilt, so this presumption allows a factor which is essential to guilt to be presumed – and moreover, actually requires accused to disprove this- However, avoids placing an impossible burden on Crown

- Anytime the acc’d has a burden of any kind, 11(d) is violated- So, if acc’d raised issue of mental disorder but was presumed sane, this violates 11(d) – but is held to be justified/reasonableDissent (McLachlin): Held that this presumption didn’t actually violate 11(d)Dissent (Wilson): Held that it did violate 11(d) & couldn’t be saved under s. 1. Assumes this reverse onus aims to prevent sane people from getting off on tenuous insanity pleas, but govt has failed to prove this is a real social problem – no widespread evidence of this. Fails s. 1 justification.

What is the verdict after a successful insanity defence?

s. 672.34 and s. 672.1

“Committed the act or made the omission but is not criminally responsible on account of mental disorder.”“NCRMD”

- This replaced the old criminal code “not guilty on account of insanity” in 1992.- Acc’d is not acquitted- There is a finding of guilt, but rather than being convicted or acquitted, acc’d is declared NCRMD and is diverted out of criminal justice system

What are the consequences of being found NCRMD?

OLD RULE (prior to 1992)

Automatically confined indefinitely at the pleasure of the L.G. No rules of due process: Unreviewable, no reasons given.

- Cabinet sought advice from a review board, but still had authority to detain indefinitely

- Nothing about release or facilitating re-entry into community

STRUCK DOWN:Swain SCC 1991

Violates s.7 and 9 and not justified under s.1

- Old rules said to be egregious Charter violations

NEW RULE:Part XX.1:ss.672.45 and

A hearing is given to make a decision, taking into consideration, amongst other

- Conditional release or detained, subsequent decisions about the continuation are made by an

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672.54 things, the need to protect the public from dangerous persons and either:

(i) Release unconditionally(ii) Release upon conditions

of supervision(iii) Detained in custody in a

hospital

independent review board which is bound to follow rules of due process: s.672.47

UPHELD:Winko SCC 1999

Winko claimed that Part XX.1 of the CCC violated his s. 7 rights

Held: This regime is constitutional.

Timeframe: Up until 1990, there was no special verdict for the mentally ill (exception was the M’Naghten defence, in which case they were automatically detained) 1st Charter challenge:

Chaulk – upheld the burden of proving insanity, per s. 16(4)

2nd Charter challenge: Swain – struck down old provisions (violated s. 7)

The new regime in response to Swain does not result in an automatic, indefinite detention and balances fair treatment to the NCRMD person with the need for public safety.

Represents an ENTIRELY new approach for dealing with the mentally ill.

Basically, the person is to be treated with dignity and afforded the most liberty possible, compatible w/ public concerns. Reflects underlying Cdn values that NCR accuseds are NOT morally blameworthy for conduct that would otherwise be criminal.

McLachlin’s Reasoning:- Historically, no special verdict

for mentally ill; even if an acc’d was acquitted due to mental illness, they were automatically detained

- Parliament enacted sweeping changes in Part XX.1 in response to old provision struck down in Swain

- Rather than automatic detention, these provisions require an absolute discharge unless court/Review Board can show they pose a significant risk to the safety of the public

- Not fair to indefinitely detain someone who is not morally responsible

- Presents third option to just acquittal or conviction: NCR diverted into special stream

- Mandatory review of the orders in 2 and 3 must be held at least every 12 months while the orders are in effect.

- Regime did not result in automatic indefinite detention (important!)

- Required the imposition of the least onerous or restrictive disposition

- There is no compulsory treatment order (an NCR can decline medical treatment)

- Decisions are subject to appeal- Summary: Rejects negative

stereotypes of mentally ill, rejects traditional guilt-innocence dichotomy with third option, balances fairly protecting NCR offender while

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also protecting society. Mentally ill rather than criminally responsible; treatment rather than punishment.

Reform – Bill C-14

Huge public debate around NCRMD in Canada (i.e. huge outcry when people commit atrocious acts but are found NCR & thus not morally blameworthy – e.g. Vincent Lee)

Changes from Winko – opposed by scholars in psychiatric community We know what the changes are, but we don’t know how they will be interpreted Incredibly controversial changes Insanity defence used to be more onerous that people usually preferred jail time; defence

counsel would only use NCR in most serious cases w/ huge incarceration possibility (e.g. murder).

Issues: People who may not be morally blameworthy would rather take guilt over this. Do these new provisions do the same thing? Will they just send more people into our prisons than into our hospitals? Is this the best response?

EXAM: Are these provisions Charter compliant, given what McLachlin said in Winko?

Changes under Bill C-14 (CIF July 11, 2014)Changes Notes

1. Code requires (as before) that Crown prove significant harm/threat to public safety to justify detention.

- Defines significant harm: “A risk of serious physical or psychological harm to members of the public, including any victim or witness to the offence, or any person under 18, resulting in conduct that is criminal in nature but not necessarily violent.”- Arguably lowers threshold (Crown needs less to show significant harm)- Previous language included the word real (i.e. “real threat”)- How will this be interpreted? Will Court read in higher Winko standard, or adopt lower standard?- s. 672.5401

2. Got rid of “least onerous/restrictive”; new language is necessary and appropriate in the circumstances

- No longer the idea of maximum liberty required- More discretion (= more potential for abuse?)

3. When considering what is necessary & appropriate, public safety is the paramount consideration

- Significant shift: focus used to be more on balancing public interest w/ accused’s interest. Now, public safety is paramount- Accused’s interests, reintegration into society, etc become secondary

4. Enhanced victim involvement – requirement of notification

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5. New designation for high risk offenders (s. 672.64) if person is NCR for serious personal injury offence and there is a substantial likelihood that they will use violence to endanger others, or the acts that constituted the offence were of such a brutal nature as to indicate a risk of grave physical or psychiatric harm

- Crown initiates this process; decided by a judge- Judge must look at all relevant evidence (nature and circumstances of offence, pattern of behaviour, current medical condition of accused, course of treatment, and expert evidence)- If found to be high risk, consequences as follows:

Accused will be detained (ONLY option initially) Accused can only leave hospital for medical

reasons (i.e. treatment) – must be escorted Annual disposition review (usually 12 months)

may be extended to 36 monthsFinal notes: These amendments are very controversial. Old provisions were seen as so terrible that defence counsel would rather their clients take jail time than try an NCR defence means people who many not be morally blameworthy are choosing a finding of guilt over this. The same issue might arise in these new provisions – are we just sending more people into our prisons than our hospitals? Is this a good response?

Story of Mr. Evans – NCR – eventually held for 7 years (much longer than his jail time would have been) but was misdiagnosed. The “defence” of NCR basically became a miscarriage of justice. He would rather have been convicted than declared NCR.

Substantive Aspects

s. 16 of the CCC: 16(1): Nobody criminally responsible for an act/omission if suffering from a mental disorder that

rendered them incapable of appreciating the nature and quality of the act/omission, or of knowing that it was wrong.

16(2): Everyone is presumed sane , unless proven otherwise on BOP. 16(3): Burden of proof is on the party raising the issue. “Mental disorder” is defined in s. 2 as a disease of the mind.

Thus, two elements to the substantive defence:1) Having a “disease of the mind”2) Incapable of “appreciating” nature/quality of act OR incapable of knowing it was wrong.

Note: s. 16 relates wholly to cognitive function, not volitional impairment Ability to reason/understand versus ability to control behaviour due to disease of the mind

(compulsion, irresistible impulse) This section focuses on individuals being autonomous and rational – the ability to reason and act

on decisions made. Why don’t we allow a defence of NCRMD to those who cannot control their actions? Impulse disorder, pedophilia? Criticism of this part of the law.

Trial judge in Abbey held acc’d was responding to an irresistible impulse that he was powerless to change – but this defence doesn’t exist in Canadian law (thus, overturned)

The table below works through the three requirements of the substantive defence (“disease of the mind”, “appreciating” nature/quality of act, or knowing it was “wrong”)

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Issue Case Ratio NotesMeaning of “disease of the mind”

Simpson 1977 ONCA

- ‘disease of the mind’ is a legal term and should be given a definition by the courts NOT medical experts.

- Expert medical evidence is not determinative whether the accused had a disease of the mind or not.

- Disease of the mind is a legal concept.- It should be left to the trier of fact (informed by medical evidence), not from the medical experts themselves.- Judicial precedent does NOT apply here – each case decided anew.

Cooper 1980 SCC

“ANY illness, disorder or abnormal condition which impairs the human mind and its functioning.”

EXCLUDING voluntary consumption of drugs/ alcohol (go to intoxication for that) OR transitory states like hysteria/ concussion (go to automatism) – these exclusions are based on policy

Must have a degree of permanence – Michelle finds this less persuasive. Why treat anyone differently if mental disorder is transitory versus permanent?

- Leading case on the definition of ‘disease of the mind’

- This does not constitute the complete defence, is just a necessary prerequisite.

- More concerned with the effect of the disease of the mind on the accused. i.e. step two.

- Mental condition must have a degree of permanence (not temporary/transitory state)

- Affirmed (per Simpson) that a personality disorder (like psychopathy) can be a disease of the mind

Bouchard-Lebrun SCC 2011

A temporary psychotic state caused by voluntary consumption of alcohol or drugs does NOT constitute a disease of the mind.

(More on this case below)

- Affirmation of Cooper- Go to the defence of

intoxication instead.- It is a legal concept with a

medical dimension. Up to the judge to decide if the acc’d had a “disease of the mind”, then up to the jury to decide if the acc’d was actually suffering from the disease of the mind at the time of the offence.

Meaning of “appreciate”

Cooper/ Barnier SCC

INCLUDES:- Intellectual AND emotional

awareness of the impact and consequences of the act.

- Ability to perceive, estimate and understand the consequences, impact and

- Appreciate is a wider meaning than the old common law rule of “know” from M’Naghten (more than mere cognition is required)- So more than understanding the mere physical quality of the act (e.g. choking someone)

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results of a physical act. must be able to also perceive the consequences/impact of the physical act (e.g. that choking will result in the death of a human being)

- NOW OVERRULED slightly ***see cases below***

Kjeldsen 1981 SCC

Pulled back a bit from def’n in Cooper.ONLY requires:

- Know the nature of his act and its physical consequences

- NOT the ‘emotional’ awareness.

NB: Today, there is a move to bring “emotional consequences” back into this, so those with psychopathy and similar mood disorders are brought back within the ambit of s. 16

- This was to deal with the problem of psychopaths, who knows exactly what they have done but lack the emotional awareness.

- Psychopathy is therefore NOT an available ‘disease of the mind’ that entitles an accused to the NCRMD defence.

- Narrowed the ambit of the defence & took it out of reach of those with psychopathy

- Doesn’t apply simply because someone lacks appropriate feelings of remorse/guilt, even if this stems from a “disease of the mind”

Abbey SCC 1982

- Appreciating the physical consequences is restricted to ONLY those that are an essential element of the definition of the offence.

- Therefore DO NOT need to be aware/ understand the penal consequences of your actions

- He knew his behavior was wrong, thus doesn’t matter that he couldn’t appreciate penal consequences

- Facts: Acc’d smuggling cocaine into Canada – suffered hypomonia (knew what he was doing, but had delusion that he was protected from punishment by a mysterious external force)

- Accused was still held guilty b/c although he believed a higher power was protecting him from being CAUGHT or held responsible for smuggling drugs, he was fully aware of the fact that he was smuggling drugs and what that was.

- Leaves open the question – do they even need to be grounded in reality? What if they are delusional but still understand the physical consequences?

- NB: No defence of irresistible impulse in Canada (tho this may be evidence of a disease of the mind)

Kirkby/ Swain ONCA

- Tried to draw back from the Kjeldsen/Abbey

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SUMMARY: The focus of the first branch is on the physical consequences of the act, not the emotional or penal ones.

modificationsLandry 1988 Que CA

- Paranoid schizophrenic, believed his friend was Satan & had to kill him to save the world

- Court restricted the meaning of ‘appreciate’ to the physical consequences – but still allowed the acquittal b/c accused didn’t know his act was morally wrong (see below)

- Tried to draw back from the Kjeldsen/Abbey modification

- SCC shut them down! Narrower definition of ‘appreciate’ stands – focus is on ability to appreciate physical consequences of the act

Meaning of “wrong” Schwartz SCC 1976

- OLD RULE: incapable of knowing the act was legally wrong.

Chaulk & Morrissette SCC 1990

- Facts: Accuseds stabbed victim, knew laws of Canada existed but believed laws were irrelevant to them.

- Issue: Should “wrong” be just legally wrong, or also morally wrong?

- OVERTURNS SCHWARTZ (i.e. legally wrong)

- NEW RULE: Incapable of knowing the act was morally wrong in the circumstances according to the moral standards of society.

- If a disease of the mind prevents someone from drawing moral distinctions, then – even if they know something is legally wrong – they are not criminally liable

- ‘Moral standards’ are the ‘ordinary moral standards of reasonable members of society’ (means an amoral accused can’t substitute his own sense of morality for that of society)

- This definition of ‘wrong’ is more expansive than the old rule, as sometimes things are morally wrong but not legally wrong.

- Allows defence when an acc’d may well know the act is legally wrong, but delusionally believes that it is morally right

Dissent: Rejects legal/moral distinction. As long as acc’d knew the act was in some sense “wrong”, then they can be held liable (plus, moral standards can be very hard to determine – might lead to uncertainty)

Oommen SCC 1994

- Facts: Acc’d suffered paranoid delusion, believed woman was part of a conspiracy to kill him, shot her.

- Expert evidence: He had general capacity to distinguish right from wrong, but his delusion deprived him of ability to know that killing her was specifically wrong (delusion

- If you can’t rationally consider if your act is right or wrong, then you lack the capacity to know your act was wrong by the standards of the ordinary person and are entitled to an insanity defence.

- Confirms that “knowing the act was wrong” doesn’t just mean abstract knowledge that killing is wrong as viewed by society, but extends to the accused’s

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SUMMARY: The focus of this second branch is on knowing the act was morally wrong, and having the capacity to make a rational decision in the circumstances re: right/wrong.

made him believe killing was necessary/justified)

- APPLICATION of NEW RULE: the accused must lack the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not.

- Held: Acc’d was deprived of capacity to know his act was wrong (truly believed she was going to kill him, so in his eyes killing her was right and justified). He was unable to make a rational decision re: right/wrong, due to his mental disorder.

inability to rationally apply knowledge of right and wrong in the circumstances

- Basically, the difference between knowing in an abstract, general way that killing is wrong, but in that moment believing – due to mental illness/delusion – that it was necessary or justified

- Extends to whether appreciated the wrongness of the particular act at the particular time

- NB: Does not cover psychopaths or people with deviant moral codes (i.e. someone who knows what they do is wrong from the eyes of society, but does it anyway, or follows their own deviant moral code)

- Summary: Basically, if someone lacks the capacity for rationality, they are not criminally responsible. If they do have the capacity but simply fail to use it, then responsibility is not precluded.

What if it falls short of these definitions?

Ferguson / Lawrence

- Conflicting case law indicates that if the mental disorder falls short of insanity defence, it can still be considered in regards to whether the Crown has proven mens rea intent beyond a reasonable doubt.

- You can basically run it like intoxication – i.e. that evidence of the mental disorder was such that the accused lacked specific intent and thus out to be convicted instead of lesser, included general intent offence

- If successful, this ‘new’ defence usually results in convictions of a lesser included offence that doesn’t require proof of intent i.e. manslaughter instead of murder.

Intoxication Bouchard-Lebrun SCC 2011

- “disease of the mind” definition from Cooper excludes mental impairment caused by voluntary drug consumption

- If the mental disorder is

- The accused can rebut that presumption if there is evidence that the psychosis arises from internal, psychological weakness of the accused—that will normally be difficult to

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exclusively from intoxication, and not part of the inherent psychological makeup, then won’t be a “disease of the mind”

- Facts: Accused unlawfully entered building, brutal assault – was in psychotic state caused by ecstasy

- State of psychosis seemed to be from intoxication alone (not co-occurring mental disorder) – psychosis only came up when he took the pill, and disappeared a few hrs later

- NB: He was an occasional drug user, but not an addict

- No previous psychotic episodes, no underlying disease of the mind

- Held : Couldn’t rationally appreciate what he was doing, BUT was convicted nonetheless of aggravated assault & assault (general intent offences, s. 33.1, because his intoxication was self-induced & involved violence).

- Important distinction: whether psychosis was just from drugs, or based on some other mental disorder simply triggered by drugs

- Self-induced intoxication is not a disease of the mind. Toxic psychosis wasn’t part of his inherent psychological makeup, therefore it is not justified to exempt him from criminal liability.

prove and depends on the facts.- Thus, temporary psychosis

caused by voluntary drug consumption is NOT a disease of the mind – but, Court held that outcome may have been different if there was evidence of addiction

Criticisms: Psychosis exclusively from intoxication is rare (usually latent mental disorder). There was little evidence of the accused’s psychological record.

Court addressed (albeit in obiter) concerns around co-occurrence. See below.

Intoxication and Mental Disorder: Note on Co-Occurrence

It is difficult, if not impossible, to know whether a particular psychotic episode comes from substance abuse, or mental disorder, or both

Users often take a cocktail of drugs; don’t know exactly what they are taking, what the respective strengths of the substances are

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Coming out of Bouchard-LeBrun, SCC addressed these clinical challenges Court said (albeit in obiter) that with a situation of co-occurrence, i.e. potentially co-

contributing substance abuse and mental disorder, courts should employ the holistic approach coming out of the Stone case (case on automatism)

1. Internal cause theory Compare the accused with a “normal person” and determine whether a

“normal person in the same circumstances” would have reacted similarly But who is a “normal person”? What factors do we consider?

2. Continuing danger theory Assess the likelihood of recurring danger to others Evidence of substance dependence will have considerable weight (i.e.

addiction) - may weigh in favour of finding that substance abuse should be included in s. 16

Lebel hinted at this possibility in Bouchard (i.e. evidence of addiction may have led to a different outcome – here, the accused could stop voluntarily taking drugs, but if there was a dependency issue, that could be determinative because the likelihood of recurring danger might be greater)

Could this point to an expansion of the NCRMD defence? Up until now, people who experience psychosis from drug use, where that use – albeit voluntary

– was the product of dependence, or an underlying neurological vulnerability – have until now been dealt w/ in prisons. Could they be diverted to health care system?

Possible expansive effect on “disease of the mind” Would strain mental health resources, but would help more people Move away from viewing addicts as somehow culpable Tremendous diagnostic uncertainty/instability in cases of co-occurrence (often erroneous first

diagnosis, people then dealt with improperly) Pressure on psychiatrists to make a clear, confident definitive diagnosis to the court – this can

lead to misdiagnosis and problems But perhaps a new hoslitic approach allows for some uncertainty – recognition that it may be

difficult, if not impossible, to draw line between mental disorder/addiction We must overcome issues of evidence, institutional barriers, distaste for certain segments of the

population Obiter of LeBel in Bouchard is the path to move us forward In a case of substance-abused psychosis, many factors must be considered; courts must take a

contextual approach that strikes a fair balance between protecting public versus making sure criminal liability can only be imposed on those who can be held responsible

NB: If evidence of insanity/mental disorder falls short of s. 16 requirements, still use this evidence like an intoxication defence (i.e. acc’d lacked ability to moral blameworthiness/ability to form specific intent – convict instead of general intent offence) – can also engage with this evidence at sentencing.

EXAM: Lots of room for law reform here.

Distaste for NCRMD

Historically, defence counsel have had distaste for NCRMD (old rule re: indefinite automatic detention meant they would only plead this in the most serious circumstances)

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Quotes from lawyers: NCRMD is a hotbed for abuse of civil liberties, leads to prejudicial consequences, NCRMD outcome is possibly worse than sentencing from guilt

Often, outcomes in NCRMD have been possibly worse than sentencing Defence counsel usually loathe to recommend NCRMD, except in cases where:

o Serious charges (potentially lengthy sentences)o If accused has transitory mental disorder (likely to resolve in short period)o Where therapeutic treatment in forensic psychiatric system is actually perceived to be in

accused’s best interests (more so than incarceration). However, even if counsel recommends NCRMD defence, accused may not accept it (often

guarded, paranoid, may not self-identify as needing treatment) Concern that Crown lawyers have had little appreciation for these challenges and little patience

for a slower pace in prosecution for those with mental health issues Issues around resources (experts needed to testify for NCRMD – can make the defence

expensive to run). Crown counsel usually have funds for this, while often defence counsel must pay out of pocket

Unfortunate history where experts often saw themselves as advocates for the Crown BC forensic psychiatry in a crisis state (not enough resources) EXAM: Room for law reform here (combine with section above to suggest new way forward and

ways to change attitudes/approaches to this defence).

Automatism

Automatism: It is NOT codified – it is a common-law defence (permitted per s. 8.3) Leading case is Stone, with an important application in Luedecke Negates the voluntariness requirement of the actus reus

Definition: “Impaired consciousness in which an individual, though capable of action, has no voluntary control over that action” (Stone) – note IMPAIRED consciousness, not unconscious

NB: Only the accused can bring evidence of automatism, and must prove on BOP

Two kinds of automatism:1. Insane automatism (a successful claim triggers s. 16, results in a verdict of NCRMD)2. Non-insane automatism

Burden of Proof

Case NotesInitially:Rabey (1980, SCC)Parks (1992, SCC)

Where some evidence of automatism was advanced, the onus was then on the Crown to prove otherwise. This changed in Stone.

Now:Stone (1999, SCC)

Reverse Onus: There is a presumption

that an accused acts voluntarily.

The accused has the burden of proof to rebut the presumption

Evidence the accused must present: Claim of involuntariness and(1) must call expert or psychiatric evidence confirming the claim- Policy: expert evidence to address malingering and self-serving evidence(2) “some other” supporting evidence to

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of voluntariness on a BOP (would be too hard for Crown to prove voluntariness)

Recognized in Chaulk and Daviault that this burden violates a person’s rights under s.11(d), but can be justified under s.1.

Three places where this reverse onus (to be proved on BOP) exists: extreme intoxication (per Davialut), mental disorder & automatism

Note: in NCRMD, Crown or defence can present a s.16 application, but here it is exclusively to the accused to bring the defence on a BOP

corroborate accused’s assertions- Michelle: this is a heavy burden, arguably restricts the availability of the defence

THEN: Judge decides as a matter of law whether it’s a mental disorder automatism & should be diverted into a s.16 application or if it should be permitted to stand alone as a form of non-insane automatism. If accused is successful (on the standard of a BOP): mental disorder automatism: accused is

diverted to mental health, even tho no language in s. 16 re: “volitional impairment” – court extends the reach of NCRMD here (s.672.54 – detention in hospital or release with conditions or absolute discharge)

non-insane automatism: always acquittal - best possible result for client

extreme intoxication automatism (a la Daviault): subject to 33.1 – may be convicted of a general intent offence

Basically, three defences: intoxication, NCRMD, automatism

Automatism v. Non-Insane Automatism

Case Issue RatioRabey v The Queen, 1980 SCC

Facts: introverted teenager, minimal sexual experience, infatuated with girl who rejects him, next he’s choking her; claims rejection was “psychological blow” that triggered automatism

Difference between automatism & non-insane automatism

“Internal Cause Theory”:If psychological blow leading to dissociative state is due to normal life stresses, automatism is attributed to personal weakness, which suggests a disease of the mind (NCRMD)

“External Cause Theory”:If psychological blow leading to automatistic state comes from extraordinary event, it’s an “external cause” and accused can rely on non-insane automatism defence

- Idea is that accused’s behavior is transient, accused not a danger to himself, commitment to health system unnecessary

- concern here: continuing danger (developed in Parks)

RULING:

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Majority (Ritchie): it was internal cause (mental disorder) – he reacted unnaturally in a way a normal person would not - acquittal on NCRMD grounds (Accused argued against this – finding of insanity would be grossly unfair since he would be subject to insanity provisions and possibly indefinite detention)

Dissent (Dickson): Mental disorder must be evidenced – s.16(4) presumes sanity expert medical opinion to contrary required Here, finding of NCRMD was wrong – no

ongoing psych. disorder, no symptoms, etc Should be a subjective standard, looking at

what happened to that specific person on that occasion (the fact that he didn’t respond the way other “normal” people would shouldn’t obscure the fact that he has no disease of the mind)

If automatistic conduct is transient & unlikely to recur, and acc’d isn’t a danger to himself or society, then automatism is the right result, not insanity

[Dickson doesn’t dispute fact of dissociative state or that there should be an acquittal, he just doesn’t like the mental disorder basis for the decision, since NCRMD meant indefinite confinement]

R v Parks, 1992 SCC

Facts: Guy has gambling addiction, stressed, insomnia, history of sleepwalking, gets out of bed, drives to in-laws, stabs them to death; then drives himself to police station, remembers nothing.

Ruling: acquittal

What is the proper defence for sleep-walking?

Sleepwalking is NOT a mental disorder (no evidence for this) Proper defence is automatism, not insanity,

so he was acquitted Lamer: public safety issues here (how to

ensure he won’t do it again? Can we supervise him?)

La Forest: Discusses continuing danger theory (any condition likely to pose a danger to the public should be treated as NCRMD) and internal cause theory (speaks to the cause – suggests any condition stemming from psychological makeup should result in NCRMD, whereas external cause should result in automatism)

Both approaches share common concern of public safety

NB: Changes in Luedecke (sleepwalking characterized as a mental disorder)

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Leading Automatism Cases

R v Stone, 1999 SCC

Facts: Troubled marriage, quarrelling on trip to Vancouver, she’s belittling him, next thing he remembers is looking down at her body, stabbed her 47 times; hides body, flees, then admits it, saying he doesn’t remember anything.

NB: Court says that amnesia isn’t necessarily indicative of automatism (can often arise after the event as a post-traumatic response)

Five propositions presented by the Court:

1. If impaired consciousness due to DoM, accused must use s.16 NCRMD

- Note: s.16 language focused only on “cognitive capacity”, but here common law reads in “volitional impairment”

2. Trial judge decides whether it’s a DoM or automatism; jury decides if the condition was operating at the time

3. Presumption that automatism arises as a result of mental disorder (non-insane automatism is very rare)

- Canadian Psychiatric Association gave evidence showing strong correlation between mental disorders and dissociation

- Such a strong correlation that the court was comfortable creating a legal presumption to that effect

- Michelle: an example of the Court building on scientific evidence (Mabior is another)

- Doherty JA in Luedecke (ONCA 2008): the preference in Stone for a finding of NCRMD for someone who was in a dissociative state can be explained by very different treatment now accorded to those found NCRMD. The provisions of XX.1 completely changed the post-verdict treatment of those found NCRMD

4. Holistic approach to DoM-automatism: if taking a run at the presumption (i.e. to argue non-insane automatism) Court must apply holistic approach – they are only factors (judge can dismiss them!):(1) internal cause factor

- Modified objective approach – a “similarly situated individual” (look to circumstances, not to mental state) to assess person’s automatistic reaction

- Would a reasonable person have reacted to the alleged trigger by entering an automatistic state (per Rabey)?

(2) continuing danger factor- If danger/violence is likely to recur, then the condition should

be treated as a disease of the mind- Policy is important here – majority and dissent in Rabey

agreed that public safety is key concern- Key factor: likelihood of recurrence of violence

(3) policy issues- a. Fear of fabrication- b. Public disillusionment by an outright acquittal- c. Consideration of subsequent monitoring

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5. Evidence of an extremely shocking trigger required for “psychological blow” (non-insane) automatism: assessed with a modified objective test Courts will consider these factors (not exhaustive):

- Severity of the trigger- Corroborating evidence of bystanders- Corroborating medical histories- Presence or absence of motive- Relationship between the alleged trigger and the victim

No single factors is determinative, but very difficult to make this claim; court is reluctant here – Stone thought to be end of psych blow automatism since it put so many barriers around it Another criticism – putting so many restrictions before automatism can even be put to the jury = lack of faith in juries

NB: Big dissent by Binnie here (on burden of proof - i.e. wrong to make accused to prove voluntariness, problems with internal/external cause distinction, problems with expanding NCRMD – seems inappropriate to classify something as a disease of the mind, absent any diagnosis, simply because there was no “external cause” found to justify the automatistic state)

NOTE ON EVIDENTIARY BURDENSome criticism that since voluntariness must be proved on BOP, this creates a new hurdle to the defence being left with the jury (more than just “some” evidence). But court below rejects this:Fontaine (2004, SCC) clarifies that the usual “air of reality” test applies to automatism:1. Some evidence [normally, an assertion of involuntariness supported by the logically probative) opinion of a qualified expert] must be presented by accused to bring the defence2. Persuasive burden shifts to the Crown to prove each element of the offence; if met…3. Jury then decides if the accused has shown on BOP that actions were involuntary (NB: Reverse onus, like NCRMD) – the law presumes sanity, and voluntariness. But this persuasive burden on the Df (i.e. that they prove voluntariness on a BOP) does not present an additional hurdle before the defence can be left with the jury. As long as there is some evidence, then it goes to the jury and they decide. The normal “air of reality” test applies.

Graveline, 2006 SCC

Facts: battered spouse shoved by husband, abusive language; husband’s conduct

Psychological blow automatism (i.e. non-insane automatism) is not dead! Not particularly shocking trigger, but in the context of a 32 year

abusive relationship, was enough – she shot him Expert evidence supported her claim of automatism (build-up of

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triggers automatism unexpressed rage due to years of abuse) The case was decided on a different issued, but the Court left

open the possibility that conduct falling short of an “extremely shocking trigger” can constitute a “psychological blow” when placed in the context of battered woman syndrome (more contextualized, subjective view here)

R v Luedecke, 2008 ONCA

Facts: Sex assault while sleepwalking; expert psychiatrist said accused was in para-somniac state at the time, acted without volition/ consciousness/capacity to control his behaviour, had history of this, whole family of sleep walkers

Can sleepwalking be classified as a mental disorder?

YES

Courts change their orientation to sleepwalking post-Stone Big change since Stone is

now automatism is presumed to be a DoM

Preference for this finding since NCR individuals are treated so much better now – makes more sense

Accused consented to declaration of NCRMD but was granted a discharge immediately because he was amenable to treatment

R v Jiang, 2007 BCCA

Facts: Accused suffering from undiagnosed insomnia, falls asleep while driving; no sign that she was at risk of falling asleep before starting to drive, while driving, nor just prior to falling asleep

Can unexpectedly falling asleep while driving constitute non-insane automatism?

YES

Other examples of possible non-insane automatism: stroke, epileptic, hypoglycaemia, or extraordinary psychological blow (per Rabey)

“Acts committed in that automatistic state of mind cannot form the actus reus of dangerous driving”

BUT, a sleeping driver can be convicted of dangerous driving if they knowingly took the risk of driving and falling asleep

EXAM: Michelle: On a fact pattern, run multiple defences – provocation, automatism, mental disorder, intoxication

- Ex: Stone had facts which could engage provocation- There may be a fact pattern with co-occurrence, combination of internal/external

factors, vulnerability, mental condition, etc. Run the Stone test: look at external factors, internal factors, policy factors (biggest consideration – how do we deal with these populations, in the criminal system or the psychiatric system?)

- The defence we run depends on the outcome we want – do we want NCRMD, or do we want to plead it down?

For automatism, run the test: internal factor, external trigger, mental disorder, policy concerns

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- Ex: Bouchard-Lebrun – case was processed under intoxication, but you had an external cause and a bunch of policy considerations, including no continuing danger and the “public disillusionment” factor favouring conviction

- Make the decision based on the best outcome for your client [NS: non-insane automatism results in full acquittal!]

- Raise policy issues re: how we want the system to deal the offender in your fact pattern: correction system of forensic psych system or release with monitoring?

Further Note [Reminder] on NCRMD (Luedecke):

- Winko came three weeks after Stone, and established that s.672.54 requires the absolute discharge of anyone found NCRMD unless the court or Review Board finds them to be a “significant threat to the public”

o No burden on NCRMD accused to prove lack of dangerousnesso There must be evidence establishing the risk – trivial or miniscule risk is not

enougho Even where risk is significant, the disposition order must be tailored to the

specific circumstances of the individual and must, to the extent possible, minimize the interference with that individual’s liberty

Provocation

General Unlike automatism, provocation is a statutory defence (s. 232 of the CCC) Qualified/limited defence (not a full defence, like provocation) ONLY available for murder (reduces to manslaughter) Exists separately from intent (i.e. can apply even if intent for murder was present – based on

loss of self-control, rather than provocation negativing the requisite intent) Requirements:

1. Must be provoked by a wrongful act or insult2. That act/insult must be sufficient to deprive an ordinary person of the power of self-control

(the “objective test”)3. The accused must be reacting in response to the act/insult on the sudden, before there is

time for passion to cool (“the subjective test”) Evidentiary burden:

o Subject to “air of reality” test, like all other defenceso If some evidence raised, left to the jury – burden is on the Crown to prove that the

murder happened in the absence of provocation Rationale:

o Intended to be compassionate (someone responding to passion is somehow less blameworthy than calculated murderer)

o Degree of leniency for human frailty Limits:

o “Objective test” (only available if ordinary person would also have reacted similarly)o Prevents the extraordinarily violent/quarrelsome form getting off here

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o Only available for murdero Balances the need to protect society with the reality of human frailty/loss of control

VERY CONTROVERSIAL! See “law reform” document.

NB: If overwhelming response like anger (rage blackout) you can still argue that mens rea was lacking (like mental disorder falling short of NCRMD, or intoxication) – this is a legitimate way to run the defence outside of provocation and to still use this evidence (e.g. argue for a lesser, included general intent offence because mens rea was lacking to form specific intent?)

BUT – careful here – would we be creating a defence of anger? (Doubt was cast on this in Parent) Anger can play a role but is not a stand-alone defence. Anger can raise doubt as to mens rea only in extreme circumstances. There would likely need to be expert evidence here.

Parent, 2001 SCC: Acc’d & wife in messy divorce, arg. over assets, she said she would “wipe him out completely.” He feels flush of anger, shoots her 6 times.

Court emphasizes that provocation is an EXCUSE to reduce murder to manslaughter – anger is not capable of negating the intention to kill (can’t conflate the two)

Can’t create a defence of anger as a “halfway house” between non-mental disorder automatism and provocation

Anger is not a stand-alone defence. Can form part of provocation only.

“Wrongful act or insult”

Thibert: “Injuriously contemptuous speech or behaviour, scornful in utterance, or action intended to wound, self-respect, an affront in dignity.”

BUT: no provocation if the victim had a legal right (e.g. acting in self-defence, executing a search warrant), or if the accused incited the victim to have an excuse (i.e. self-induced provocation)

Thibert: Just b/c an act isn’t specifically prohibited doesn’t mean you have a legal right to do it (e.g. insulting someone – not prohibited, but doesn’t give you a right at law to do this)

Tran: Finding ex-wife in bed with new lover is NOT a wrongful act/insult

The Objective Test

The objective test is to determine whether an ordinary person would have lost the power of self-control, not whether they would have done exactly what the accused actually did

What can we look at in assessing the objective person?

Case NotesBedder, 1954 HOL Accused killed prostitute after she jeered at him re: his sexual impotence

HOL: Objective person is just an average person (sexual/physical infirmities should not be included)

Kamplin, 1978 HOL

HOL overrules narrow approach taken in Bedder Accused was 15 years old, deceased buggered him and then laughed at him HOL said “ordinary person” has normal temper/level of self-control, and

should be same age and sex, with same characteristics which might affect the gravity/effect of the provocation (i.e. that he was just buggered), as long as

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the characteristics are not peculiar/idiosyncraticHill, 1986 SCC SCC accepts the more contextual Kamplin approach as proper test of ordinary

person (not the narrow approach in Bedder) Accused 16 years old, killed man (“big brother”) after sexual advances Held: Characteristics relevant to the gravity of the act/insult are relevant (e.g.

racial background if insult is a racial slur, gender, etc) Young age is relevant (expect less self-control from a young person)

Stewart, 2014 BCCA

Rejected that unwanted homosexual advances could be a basis for provocation

Thibert, 1996 SCC ** LEADING CASE ON PROVOCATION ** Facts: Marriage breakdown, Thibert shot estranged wife’s lover while trying to

have private convo with wife (lover was there, kept making advances, yelling “shoot me, big guy”)

“The ordinary person must be of the same age and sex, and share with the accused such other factors as would give the act or insult in question a special significance. All relevant background circumstances should be considered – background of relationship between deceased/accused, earlier insults that led to the final actions/words, etc.”

The characteristics attributed should be enough to give the act/insult meaning but not so much as to strip the ordinary person of its objective standard and make it a subjective test

Held: There was enough here to leave the defence with the jury (romantic rejection alone isn’t enough, but here there was more – he was trying ot have private convo, deceased was taunting/confronting him, unexpected, etc)

Dissent: Provocation can’t apply here. The deceased’s behaviour was not a wrongful act/insult – nor is the breakdown of a marriage (would set a dangerous precedent).

Nobody has a proprietary right in their spouse – this can’t justify the loss of self-control exhibited by the accused

Further, she didn’t want to talk to him – this was HER choice to make – she had no duty to talk to him

Further, no suddenness here – he knew about the affair, knew she wanted to leave him, etc

Cultural Factors

Pros: Laws should account for Canada’s multicultural heritageCons: What if a given culture holds views antithetical to egalitarian aspirations/constitutional commitments (esp. in the context of male violence against women?)

Case NotesLy, 1987 BCCA Facts: Accused strangled common-law wife, believed she had been unfaithful

Acc’d held that adultery was a HUGE blow in his culture (meant man had lost his honour)

Held: This evidence re: ethnic/cultural background not relevant. Would an ordinary person (not an ordinary Vietnamese person) similarly lose control?

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Though judge held background may have been important if it was a racial slurNahar, 2004 BCCA Facts: Sikh arranged marriage, she smokwed, drank and went out with other

men – disrespect which reflects adversely on couple in Sikh community. Confrontation, he went numb, stabbed her, can’t remember

BCCA held cultural background can be considered (unlike Ly) in ordinary person test

However, even if cultural background were considered, still fails on the “ordinary person” test

Also, can’t argue that it is relevant to powers of self-control (i.e. that certain groups are more likely to lose self-control) – just for gravity of act/insult

Humaid, 2006 Ont. CA

Facts: Accused was Muslim, argued wife’s infidelity was psych. blow which led to automatism, and if not this then provocation

Expert testified that Muslim culture is male-dominated, emphasis on family honour; infidelity (esp. by women) = serious, worthy of harsh punishment. He testified that different Muslims hold dif. views depending on their background

BUT – no evidence that this accused specifically held those views, as a Muslim Can’t attribute those views to him simply b/c he is a Muslim, unless he

specifically testified to it – otherwise this would be stereotyping Further, must differentiate between loss of self-control versus motive (i.e.

can’t argue that due to cultural beliefs, an individual would believe homicide was the appropriate response, rather than coming from a loss of self-control)

Thus, cultural background/customs weren’t relevant to the ordinary person test (though age, sex and background was)

Though looks to Hill and Thibert to say cultural/religious beliefs may be relevant to the ordinary person” to give the act/insult its special significance (e.g. racial slur)

In obiter: Ordinary person cannot be fixed with beliefs that are irreconcilable with fundamental Canadian beliefs and values

Tran, 2010 SCC Facts: Acc’d/wife split up, he secretly kept key, found her in bed with new BF Held: No provocation. First, no wrongful act/insult (marriage breakdown or

new boyfriend does NOT count); second, no suddenness (he suspected!) Ordinary person test: must be contextualized but not individualized This is about setting standards of behaviour, must reflect Charter values (e.g.

can’t ascribe the quality of being homophobic)Mayuran, 2012 SCC

Facts: Accused’s sister-in-law was stabbed 47 times. She maintained her innocence & never raised provocation (however, in a phone call from prison she apparently told her husband that she confessed, that the victim had ridiculed her learning ability and level of education)

Held : No air of reality – fails on objective element. Ordinary person wouldn’t have similarly lost self-control

Ordinary person can be contextualized but not individualized (this includes her status as a new immigrant, trying to integrate into community, particularly sensitive to insults)

Commentary/criticism: 1. Did court alter “air of reality” test?- Test is “evidence on which a properly instructed jury could acquit”, but

here they said must – is this a higher standard?

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- Probably not (just a mistake)- This would raise standard too high, usurp role of jury2. Individualized/contextualized circumstances:- She was new immigrant, isolated, struggling to learn new language –

wouldn’t this be important context?- Cultural references are important- Not the same as Tran (here, no violation of equality norms, so her culture

could properly be considered in ordinary person test)3. Is proportionality a requirement?- SCC here seems to refer to proportionality (i.e. whether an ordinary

person would have stabbed 47 times, rather than whether an ordinary person would simply have lost the power of self control)

- The focus should be on loss of self control, not on consequences

Subjective Test

“On the sudden, before passion cools” – can’t walk away, think about it, come back Thibert: Must strike on an unprepared mind – background/history can also be important here

(i.e. was there a long history of insults and this was the last straw? Sheridan, 1990 SCC) Tran: SCC said this is the way to distinguish between immediate response from more calculated

or motivated conducto It must “strike on a mind unprepared for it” and “take understanding by surprise”o Held in this case that it was NOT on the sudden – he suspected wife had a partner

Self-Defence

Law of self defence aims to balance claims of self-defence by accused (subjective) against holding the accused to a reasonable standard (objective)

EXAM: Look at reasonable but mistaken belief! This tricks people on exams. Also, on a fact pattern, apply new law but draw meaning from old.

OLD LAWSNotes on old laws

Main criticism: too complex/confusing Primary means of differentiating them = what type of harm? Death, BGH, or less?

Pawliuk (2001, BCCA)

s. 34.(2) applies when accused reasonably apprehended death/GBH (i.e. serious) s. 34(1) applies where anything less (i.e. accused perceived less than death/GBH) Facts: Typical bar fight, accused about to be hit in the face so he punches guy in

self-defence, guy falls, hits head, dies. Can claim 34(1) b/c his intention wasn’t to kill or seriously injure the victim (even tho that was the result).

s. 34(1): Self-defence against unprovoked assault

Harm to self only (not in defence of others) against an unprovoked assault Focus is on the intention, not the result (i.e. even if someone died or was hurt) Four elements:

1. Unlawful assault (or reasonable but mistaken belief) that the individual is being or is about to be the subject of an unlawful assault;

2. Not provoked;3. Force must not be intended to cause death/GBH (even if that is the result, as

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long as it wasn’t intended);4. Force used must be no more than is necessary.

Proportionality in the 4th element requires a tolerant approach (per Kong) – mistake re: amount of force necessary is okay, as long as the mistake is reasonable in the circs.

s. 34(2): Extent of justification

Person who is under reasonable apprehension of death/bodily harm is justified in causing death or GBH as long as he believes he can’t preserve himself otherwise.

3 (possibly 4) elements:1. Unlawful assault (or reasonable but mistaken belief);2. Person must be under reasonable apprehension of death or BHG;3. Acc’d must believe on reasonable grounds he has no other choice.4. (Possible 4th requirement) – when death is actually caused.

Cynous (2002, SCC)

Each of the first three elements in ss. 34(2) had subjective/objective components Must be an air of reality to all 3 of the core elements (here, met for 1/2 but not 3) Facts: Acc’d suspicious that deceased and 3P intended to kill him. Suspicious victim

had stole his revolver. 3 days later, they planned another crime together – he feared an attack on his life & shot him in the back of the head

Held: SCC accepted he may have honestly believed his life was in danger, but no evidence that his belief that he had no alternate course of action was reasonable

Thus no air of reality to the third element under s. 34(2) – 1st yes (reasonably believed an unlawful assault), 2nd yes (feared a deadly attack – but not 3rd (no evidence that he believed he had no other way of preserving himself)

Must objectively be shown no other reasonable alternatives (not just his subjective testimony that he believed he couldn’t do anything else)

I.e. why didn’t he wait, flee, etc? Binnie – allowing SD here would be antithetical to public order

Courts haven’t been sympathetic to criminal organizations – but have been to inmates facing incidences of violence in prison settings (see R v McConnell – EXAM – also an excellent novel fact pattern! P. 973)

EXAM: Good set of facts to analogize to for applying the new law!McConnell (1996, SCC)

Compared “prison environment syndrome” as analogous to battered wife syndrome

Convict’s code cannot replace Canadian law – however, judge instructed the jury to consider the general prison environment - endorsed contextual approach

Imminence not req’d, as long as victim had “present ability” to carry out the threats. 35: Self-defence in case of aggression

Where accused is initial aggressor Long-held belief that ss. 34(1) and 34(2) were only available to innocent, but

reading in McIntosh held words “without having provoked the assault” were only in s. 34(1) and should not be read into s. 34(2)

Basically rendered this provision uselesss. 37(1): Preventing assault

To protect oneself, or anyone under one’s protection from assault Essential elements:

1. Acc’d must reasonably believe self, or others, is subject to an unlawful assault;2. Force can be no more than is necessary to prevent assault (or its repetition);3. Wilful infliction of hurt/mischief cannot be excessive.

Imp. b/c allowed defence of others (not available in ss. 34/35) Anyone “under one’s protection” been given very BROAD meaning (Webber –

anyone who requires protection which acc’d may be able to provide – parent child,

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prison guard inmate, etc) “Gap-filling” provision used for where ss. 34/35 can’t apply

s. 37(2): Extent of justification

Can’t justify excessive hurt/mischief

Retreat Is there any requirement to retreat before acting in SD? This answer varied quite a bit under old laws s. 35 – retreat as far as feasibly possible (but nothing in ss. 34/37) Lavalee: Nobody has an obligation to flee from one’s home before relying on SD Possibility of retreat might be a factor to be considered in whether acc’d

reasonably believed he/she could not otherwise preserve him/herself – no obligation, but goes to reasonableness (Malott, Druken)

Cynous: That acc’d did NOT flee determined air of reality on 3rd element not met Thus: not imperative, but certainly relevant

Intoxication Remember: the reasonable person is sober, so the objective assessment of reasonableness presumes without factor of intoxication

Doesn’t mean that your belief may not be reasonable simply b/c you are intoxicated, but something to remember

Thus, the accused’s intoxication is irrelevant in deciding whether is belief was reasonable

Reilly is the authority hereMental Impairment

Unlike intoxication, it IS relevant Nelson (Ont. CA): Court held diminished intelligence of acc’d should be considered Lavallee: Acc’d said it would be unfair to measure her apprehension/belief against

that of an ordinary person (since she was a battered spouse) Kagan: Court held acc’ds Aspergers syndrome should have been considered

Co-occurrence

Thus: intoxication not relevant, mental impairment relevant. What about new reality of co-occurring substance abuse and mental disorder? This is the NEXT FRONTIER!

Excessive Force

ss. 34(1) and 37 both say “no more force than is necessary” = proportionality req Assessed objectively but with consideration to context Consider force used by attacker to determine force required to repel that attack Contextualized somewhat (relative strength of parties, options available) But not purely subjective – must still determine what a reasonable person in the

accused’s circumstances would have done If there is a mistake at play (EXAM), objective standard will be based on accused’s

mistaken perception of the circumstances – as long as they are reasonable (Kong) ss. 34(2) and 35 – broader allowance to degree of force that could be used, less

stringent than ss. 34(1) and 37 (Baxter) If degree of force is excessive, accused will be criminally liable under s. 26 for that

part of the force which is excessive No partial defence here (like provocation) – if excessive force results in death, then

accused who started out acting in SD may end up facing a murder charge Depends on intent: unless killing was accompanied by intent in s. 212 (intent to kill

or cause GBH likely to cause death) then it remains killing without intent, i.e. manslaughter – so s. 34(2) = murder if excessive force, and s. 34(1) manslaughter?

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NEW LAWS – CIF March 2013s. 34(1) a) Defence of one’s self and of others, where they believe on REASONABLE grounds

that force is being used or threated;b) The act that constitutes the offence (not assault – broadens the scope) is committed for that purpose (i.e. of defending self or other - subjective);c) The act is reasonable in the circumstances - look to factors in 34(2)

s. 34(2) Non-exhaustive list of factors to assess reasonablenessChanges from old to new (Roach)

1. New law is a unified provision – includes both SD & defence of others- No more confusing distinctions between which provision, provoked or

unprovoked, intend to cause death/BGH, etc- A single standard of reasonableness governs all cases2. New law is expanded- Before, had to be threat of some kind of assault – now, just “offence”- Could apply to thigns other than assault – B&E, mischief, theft, etc3. No more reference to justification (supports broadening of the defence?)- Law seems to be taking a more contextual approach- Question remains: what would happen in a situation of co-occurrence?

Interpretation of new s. 34

Three requirements under s. 34(1): 34(1)(a): Belief on reasonable grounds that force/threat of force is being used

Subjective/objective assessment brought in from the old law Accused must have had a belief which is reasonable - accused's

subjective belief, measuring it against an objective standard Looking to the old subjective/objective assessments under old law So what do we expect will happen in relation to things like retreat,

intoxication, mental impairment? We believe the old law will be applied.

34(1)(b): A subjective purpose for defending one's self or others Adds a new requirement - that the accused committed this act for

this purpose Defence of force cannot be available for what is actually a guise for

revenge. Any other purpose falls outside the bounds of defensive action, and the person stands to be convicted for it

This was likely an unstated assumption under the old law. Not controversial. Was really there already.

34(1)(c): Reasonable in the circumstances Gone is the "no more than is necessary" proportionality requirement

- but, in our assessment of what is reasonable in the circumstances, we must look at 34(2) factors, which include proportionality, amongst others

NB: a) looks mixed objective/subjective, b) looks subjective and c) looks objective. But in an exam, just remember that we don't know how these will actually be applied - so we would say, arguably this is the test, etc

Contextualization allows objective standard to reflect acc’ds circs and history This defence now open to “defence of others” (not just limited to someone

under the accused’s “protection”) – now could apply to unrelated 3Ps New provision still doesn’t recognize a partial defence for an accused who

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engages in excessive/unreasonable self-defence Summary: New laws less structured/predictable than old provisions, but still

retains basic elements (subjectively perceive a threat, respond for the purpose of defending self/others, must be reasonable basis for this response)

Trend towards a more contextual applciationRequirement under s. 34(2):

o 34(2): Reasonableness is the theme Lots of unstructured discretion here. Clearly informed by the old law,

but much more discretion than old law (b): other means available - i.e. was retreat available? (e): size, age, gender (f): history of relationship - inspired by Lavallee (g): proportionality requirement - complemented by (a) - the nature

of force/threat, imminency in (b) However, proportionality will not be applied the way it was under

the old law. It will simply be one factor. You are still liable for use of excessive force

o Evans (2015, BCCA): Good application of this new lawo Williams (2013, BCSC): Important for the transition phaseo Remember - these are lower court decisions. No general statement yet

about how the old and the new will work together. This is frontier territory.Big questions If historically intoxication hasn’t been relevant, but mental impairment has,

what happens if they are both at play? If we are prepared to give some understanding to the psychology of inmates,

people in long abusive relationships, then what about the drug addicts on the streets? A person struggling with psychosis and using drugs to moderate? How do we use "reasonableness" to be properly sympathetic to their life and their reality? Do we use the objective sober person test, or something else?

Last year's exam - fact pattern for self-defence - the accused had PTSD

Self-Defence & Relationship Violence

Controversial, politically charged area – lots of work being done, lots left to do Be careful about statistics & don’t forget about presumption of innocence “Young prosecutors’ syndrome”: Rushing, not using discretion, particularly in intimate partner

scenarios Focus on the battered woman – how should we respond when a victim kills her abuser? Is self-

defence available here?

Case NotesLavallee (1990, SCC)

Facts: 22 years old, subject to repeated physical assaults over 3-4 years. They were having a party, she was afraid of being beaten & hid in the closet, he finds her, slaps her a few times and says “If you don’t kill me first, I’ll kill you.” He said he was going to kill her after everyone left the party. He gave her a loaded handgun and taunted her. She shot him in the back of the head as he walked away (said she aimed higher, but whatever.)

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Sequence: Trial judge acquitted based on expert testimony re: battered wife syndrome, CA overturned, SCC restored acquittal

Issue: How does evidence of battered spouse syndrome affect use of SD? Held: Acquittal. Court allowed expert evidence on psychology of abuse – first

understanding/accommodation at law of battered spouse syndrome SD under s. 34(2) Expert evidence necessary for jury, in order to understand whether accused’s

beliefs were reasonable in the circumstances “Whether she had a reasonable apprehension of death in the circumstances,

given the heightened sensitivity of a battered wife…” – thus not what an outsider would perceive, but what she would perceive in the circumstances

VITAL evidence to why she felt she had to kill him and couldn’t just leave Jury cannot pass judgment on why she decided to stay – this doesn’t mean she

forfeited her right to self-defence for having done so Learned helplessness: she felt trapped, tyrannized, psychological barrier to

prevent her from leaving – a victim mentality where she couldn’t see herself in any other situation. This evidence is clearly both relevant and necessary

Most dangerous time in this situation is right after leaving the spouse – so a pre-emptive act of killing might be self-defence

So court told the jury it had to decide whether her act was reasonable by considering the history, circumstances and perceptions of the appellant – her belief that she couldn’t preserve herself unless she killed him first

Ratio : Jury must ask itself whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself except by killing him first was reasonable.

Petel (1994, SCC) Facts: Accused was living with Edsell (who beat her daughter, forced her to weigh cocaine, threatened to kill her/her family). She shot him, then perceived Raymond jumping at her, and shot him

Held: Court applied Lavallee – a contextual approach in assessing reasonableness

There is still a required objective element, but the range of factors to be considered is expanded (language in the new provision is informed by this)

Thus the issue isn’t just what an outsider would reasonably have perceived, but what the accused reasonably perceived, given her situation/experience

Ratio: confirms Lavallee, that previous threats are relevant to reasonableness, confirms subjective-objective approach to 3 elements of SD in s. 34(2)

Malott (1998, SCC) Facts: Deceased abused M over 19 years; she had gone to cops, who then told deceased, which led to more violence. Separated. On a drug-trade errand, M killed deceased, then went to his new lover’s house and shot/stabbed her (but she survives). She raised 3 defences: SD, drug-induced intox., & provocation

What must the jury be told once an acc’d claims battered spouse relationship? Para 20: Once the defence is raised, jury ought to be made aware of the

principles of the defence per Lavallee. Should be informed how expert evidence may be used to understand:1. Why an abused woman might remain in an abusive relationship (retreat,

options, alternatives other than killing) - expert evidence can both explain

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reasons and dispel misconceptions here2. The nature and extent of the violence that may exist in a battering

relationship (if accused has killed her partner, jury must know of the violence that existed in the relationship, and its impact on the accused - needn't be proved by an expert - can be proved by the accused's own testimony)

3. The accused's ability to perceive danger from her abuser (not what an outsider would perceive, but what the accused perceived given her situation)

4. That the accused believed on reasonable grounds that she could not otherwise preserve herself (expert testimony may be relevant here)

L’Heureux-Dube: Comment on the importance of expert evidence re: BWS (legal recognition that these women have been treated unfairly) Relevance of this kind of evidence is not limited to SD Perspectives of women, who have historically been ignored, must now

equally inform the “objective” standard related to SD – the “reasonable woman” must not be forgotten in the analysis

NB: Applied under old law, but could help inform new.Concerns post-Lavallee

Lavallee was applauded by feminist scholars (said to erode gender bias in self-defence law), but still some concerns:

1. Syndrome or social problem?- The new law treats the battered woman as abnormal for not leaving a

battering relationship - it demands explanation for this- This approach obscures the problem of male violence against women- Shifts focus from the socialization of men/women in a male-dominated

society to the pathology of the battered woman- The law endorses or conceives of the experience of battered women as a

syndrome - obscures the real problem of male initiated violence in intimate partner relationships

2. Why didn’t she leave?- Inaccurately assumes leaving is safe or possible, ignores complexity- Most dangerous point is just after leaving – many who do are killed after- Lack of support (income, housing) to help this

3. The “reasonable” battered woman: The idea that the battered woman is weak, helpless, passive - may result if women who do not meet this meek stereotype have their claims of a battered relationship being unfairly decided. What about the strong, active, capable woman? Would she have more difficulty making out this defence? These women may have difficulty in getting the court to accept their claims of self-defence.

4. Failure to recognize social factors like income, housing, child care - door isn't shut on these, but weren't taken up in these cases - how these factors can limit the ability to leave

However, many of these concerns addressed in Malott, CP p. 970-973 (EXAM)What happened post-Lavallee?

1. The Ratushney Reviewo Women in jail who may not have been convicted if their trials had

proceeded after Lavallee (didn’t have the benefit of this “new” law/sensitivity towards battered women)

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o Liberal govt initiated a review under Lynn Ratushneyo Of 100 cases for review, 7 were for the royal prerogative of mercy

– some she recommended acquittal, others to reduce sentence from murder to manslaughter (per provocation)

o They only accepted half – those whose sentences were complete!o No political appetite for the royal prerogative of mercy – COURTS

must address this instead, with a full remedy (charter remedy?)o What about people convicted under Mr. Big operations?

2. The idea of imminenceo In s. 34(2), despite no express wording, the court had read in an

imminency requirement (per Whynot)o Problematic for people in battered spouse scenarios (clearly

Lavallee would not have met an imminency requirement)o In new provision, imminency is a factor in assessing

reasonableness, but is no longer a REQUIREMENT/determinativeo “Accused need not wait until the knife is at her throat or the gun

pointed at them until they are entitled in law to respond” -Lavaleeo Petel: Expanded on this (that Lavallee rejected the imminent rule)

– nowhere in the Code – is simply an assumption that arises when two people are of equal strength

o McConnell: Accused in penitentiary, believed deceased (prison enforcer) was going to kill him, accused attacked him from behind. Court held this kind of pre-emptive strike was not precluded in s. 34(2)

Take what we learned in Lavallee & be able to apply it to new circumstances (e.g. the experience of inmates, considering both subjective and objective elements, must contextualize it and understand it from their circumstances) How will this play out in new law? Will it be better or worse? Time will tell.

Duress

Defence of duress: Addresses criminal liability of those in situations of extremity, i.e. criminal acts committed while subject to threat or compulsion from another person

Necessity: Addresses circumstances that produce situations of imminent peril.

Principle v Secondary Offender: Principal = actually committed offence, secondary = party to offence ss. 21/22: Party provisions: “A person is party to an offence if they are the principal offender

(actually committed it) or if they are a secondary offender (aided, abetted/encouraged), or counselled, procured or incited someone else to do it

Guilty of the offence, whether principal or secondary offender – equally liable

Statutory defence (s. 17) and also common law. Statutory: s. 17 includes a list of offences where duress can’t apply (murder, attempted murder,

sex assault, abduction, robbery, assault, agg. assault, etc) Common law: Broader, lacking strict immediacy & presence requirements

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Paquette/Ruzic s. 17 applies to principal offenders. Secondary offenders can turn to common law defence (preserved under s. 8)

This defence operates AFTER proof of actus reus and mens rea. The intent is there, but there is good reason for it. It excuses the action, rather than negating mens rea (Hibbert)

If air of reality is established for either statutory or CL defence, Crown must disprove existence as to duress beyond a reasonable doubt.

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The law is very inconsistent! Law reform is an easy thing to think of here in terms of clarification. Court recognised in Ryan that the law is in an unsatisfactory state.

Principal Offender (or co-principal offender) or Secondary

Offender?

see ss. 21 and 22 of the Code

distinction can be difficult--up to the jury (Mena)

Principal:statutory = must use s. 17 requirements (Paquette):1. There must be a threat of death or

bodily harm directed against the accused or a third party

2. The accused must believe that the threat will carry out (subjective!)

3. Offence must not be on the list of excluded offences - this is subject to

Charter Challenge

4. The accused cannot be a party to a conspiracy or criminal association such that the person is subject to compulsion

NB: immediacy requirement struck down in Ruzic

plus 3 Common Law Supplements (Ruciz, Ryan)

1. No safe avenue of escape (does not apply to people who have safely and legally extricated from

the sitation of duress. Measured on the modified objective standard of a reasonable person similarly

situated2. Close temporal connection--such that the accused

loses the ability to act voluntarily. Modified objective test.

3. Proportionality--modified objective. Only an action based on a proportionately grave threat,

resisted with normal fortitude, cna be considered morally involuntary

Secondary = common

law

3 Common law supplements below PLUS 3 other common law

requirements:

4. An explicit or implicit threat of death or bodily harm proffered against the accused or a third person. Present or future harm. (the

“grievousness” of the threatened bodily harm is better dealt with at proportionality stage)

5. Accused reasonably believed that the threat would be carried out (modified objective!) 6. The accused is not party to a conspiracy or association whereby the accused is subject to compulsion and actually knew the threats and coercion to commit an offence were a possible

result of this criminal activity, conspiracy or association

NB: Requires threat of "serious bodily harm" (whereas CL is just "bodily harm")

but can be directed against 3P.No exclusions, no restrictions re: criminal

orgs. - more broad/genersou

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Paquette v The Queen – the relationship between the CL and Stat DefencesFacts: During robbery, innocent bystander killed by bullet from one robber. Paquette was not present. Charged with murder under s. 21(2). Drove the robbers to the store. They had threatened to kill himIssue: is accused precluded from using s. 17 because of the exception contained at the end of it?Decision: Verdict of acquittal restoredReasons: By looking at the wording of s. 17, clear that it applies to those who actually commit the offence (not parties to the offence). He did not commit the offence and is entitled, by s. 7(3) (now 8(3)) of the Code, to rely on any excuse or defence available to him at common law.Ratio: Common law defence of duress exists. Application of s. 17 is limited to cases in where the person seeking to rely upon it has himself committed the offence.s. 17 does not apply where criminal liability as a party falls to be determined under s. 21(2) of CCRestrictive s. 17 defence is only exhaustive for principal offenders (actual robber). It does not apply to secondary offenders, so the more generous CL defence applies to them (no immediacy or presence requirements, and hardly any exclusions).R v MenaFacts: Robbery with Yee. Accused tied up store owner under directions from Yee. Carried proceeds out under his command, while Yee held a gun to the store-owner.Issue: was he a co-principal offender or a secondary offender? If he was a co-principal, then s. 17 would apply and he would be excluded from running the defence (as it is a listed exemption).Decision: It was open to the jury to find him as an aider and abetter in which he would be entitled to the common law defence.Ratio: Illustrates the difficulty in characterizing an offender as primary or secondary. Difference between co-perpetrators and aiders/abetters is often unclear. The outcome is serious, because an aider can go to common law duress, whereas co-perpetrator has to deal with s. 17 and the exclusions.**An accused person cannot rely on the common law defence of duress if she had an opportunity to safely extricate herself from the situation of duress**Hibbert v the QueenFacts: Accused said he was forced by the principle offender to lure the victim (his friend); he then stood by while the victim as shot.Issue: Was duress available if he had an avenue of escape? Because of duress, is the mens rea negated?Ratio: Overrules Paquette – mens rea for aiding under s. 21(1)(b) is NOT susceptible of being negated by duress.Conclusions:1. If the offence is one where duress is relevant to mens rea, the accused can argue that the crown has not proven beyond a reasonable doubt that they possesses the required mental state.2. excuse based defence is also open (regardless of the bearing on mens rea)3. the mental states in 21(1)(b) [“purpose’] and (2) [intention in common] cannot be negated by duress. In these cases, accused can only seek the excuse defenceSafe avenue of escape objective or subjective? Objective, taking into account the particular circumstances and human frailties of the accused.

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R v RuzicFacts: woman under threat (third party threatening to harm her mother in Serbia) crosses border using a fake passport with drugs. No immediacy, no presence of danger. She believed police in Belgrade were corrupt, didn’t report. She was the principle offender.Issue: is it Constitutional to remove duress defence from people who have committed the offence with the immediacy and presence requirements.Decision: Yes, “immediate and presence” requirements are too restrictive and violate s. 7. She is acquitted.Reasons: Importing drugs not in the list of exclusions in s. 17.Ratio: Duress operates to relieve a person of criminal liability only after he has been found to have

committed the prohibited act with the relevant mens rea. It is a principle of fundamental justice that morally involuntary acts should not be punished

(but does not negate actus reus or mens rea) The requirements of a threat of immediate death or bodily harm from a person who is

present when the offence is committed violate s.7 of the Charter because they allow the conviction of a person who commits a crime in a morally involuntary manner severed from the provision, not justified under s.1

** the principle of moral involuntariness is a principle of fundamental justice **Combined effect of Ruzic and Paquette:

(i) s. 17 does not apply to secondary parties; therefore secondary parties may rely on the common law defence of duress in respect of all offences; common law duress applies under s. 8(3) of the Code to the extent that the common law has not been altered or excluded by the statutory provision (in this case, s. 17 on duress);

(ii) principal offenders may rely on the common law defence of duress in respect to all offences except the s. 17 list of excluded offences;

(iii) if a principal offender commits one of the excluded offences listed in s. 17, that offender can not rely on duress as a defence.

Other differences between s.17 and the common law: (i) section 17 (since 1983) only requires threats of "bodily harm", whereas the common law

seems to require threats of "serious bodily harm; and (ii) section 17 expressly applies a subjective test while common law duress applies a

modified objective test.R v Ryan 2013 (leading case! – Court tries to harmonize CL/stat defences)Facts: Ryan was a battered spouse. Afraid that her separated spouse would injure her or her daughter. Sought protection of police who said there was nothing they could do. She felt trapped, hired a hitman who was actually an undercover cop.Issue: is duress available where a wife, whole life is threatened by abusive husband, tries to have him murdered?Decision: SCC unanimously reverses the acquittal of Ryan based on duress (though awards a stay of proceedings)Reasons:For duress, a person must have committed an offence that a third party had compelled her to commit. Her husband was not urging her to kill him. Not the right fact pattern for duress.

Court Clarifies the Law of Duress (harmonizes common law and statutory versions of the defence)

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Distinction between Duress and Self-defence: self-defence based on the principle that it is lawful, in defined circumstances, to meet force (or threats of force) with force. The victim is the originator of the threat that causes the actor to commit what would otherwise be assault of culpable homicide. Duress (and necessity) the victims of the otherwise criminal act are third parties, who are not themselves responsible for the threats or circumstances. The purpose of the threat is to compel the accused to commit an offence.The Principle of Fundamental Justice underlying duress: only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability. No legal way out. The law excuses people who, although morally blameworthy, acted in a morally involuntary manner (Ruzic). (Whereas, self-defence is justification – Perka).Summary: Duress is only available where accused is threatened to compel the commission of an offence. S. 17 only available for principle offenders (secondary go to common law). What is remaining for a principle offender? See below:The Four Remaining elements of s. 17 (Post-Ruzic)1. there must be a threat of death or bodily harm directed against the accused or a third party2. the accused must believe that the threat will carry out3. offence must not be on the list of excluded offences (subject to future Charter challenge)4. the accused cannot be a party to a conspiracy or criminal association such that the person

is subject to compulsionThree supplements to s. 17 from the Common Law

1. No safe avenue of escape – does not apply to people who have safely and legally extricated themselves from the situation of duress. Measured on the modified objective standard of a reasonable person similarly situated.

2. Close temporal connection – such that the accused loses the ability to act voluntarily. Modified objective test. (a threat too far removed in time would cast doubt on the seriousness of the threat/absence of an escape – these are critical now that immediacy and presence requirements were struck down – post Ruzic, Court still needs a way to catch too remote a threat)

** 1 and 2 are on a modified objective standard – analyze together as an integrated, holistic analysis **

3. Proportionality – catch-all we don’t like overreaction/excess. Modified objective of a reasonable person similarly situated. Only an action based on a proportionately grave threat, resisted with normal fortitude, can be considered morally involuntary- “Accused should be able to show some fortitude and put up a normal resistance to the threat” - Ruzic

The Common Law Defence of Duress Post-Ruzic an explicit or implicit threat of death or bodily harm proffered against the accused or a

third person. Present or future harm. (the “grievousness” of the threatened bodily harm is better dealt with at proportionality stage)

accused reasonably believed that the threat would be carried out (modified obj) the non-existence of a safe avenue of escape, evaluated on a modified objective

standard a close temporal connection between the threat and the harm threatened proportionality between the harm threatened and the harm inflicted by the accused

(modified objective standard). Consider the difference between the nature and magnitude of the harm threatened and the offence committed, as well as a general moral judgment regarding the accused’s behaviour in the circumstances.

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the accused is not party to a conspiracy or association whereby the accused is subject to compulsion and actually knew the threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association

Summary of differences1. Statutory applies to principals, common law defence available to parties to an offence.2. Statutory has a lengthy list of exclusions, whereas it is unclear in Canadian common law

of duress whether any offences are excludedCourt says: this is an unsatisfactory state of the law but cannot comment in this case. Some courts have found these exclusions to be constitutionally infirm. Leave the status of the statutory exclusions to another day.

** next step: argue the exclusion clause is unconstitutional, violates s.7 – i.e. what if a principal offender is charged with an excluded offence (but they can only go to s. 17)? Charter challenge? (robbery has been struck down, and a murder offence has been struck down in trial decisions) Fraser, Sheridan

Ryan chose not to address this issue, whether there are any exclusions to the defence, and whether there are any exclusions at common law

Why should the exclusions stand – why isn’t the defence available in general? If true moral involuntariness, it should be widely available.

NB: Distinction between principle and secondary offender isn't always clear. o Could be a secondary offender, or a co-principle. EXAM HINT: on a fact pattern, make this

distinction clearly - based on what defence we want to run for our client Mena: Illustration of how this distinction can be difficult

o More than one principle offender here. What was the accused?o Facts: Robbery situation - accused tied up store owner under directions from Mr. Yee (the

other robber), did things at Mr. Yee's command while Mr. Yee held a guno n the store owner

o He argued duresso If a co-principle offender, then s. 17 would applyo But if not s. 17 was out (b/c he'd be a secondary offender)o Question left to the jury - as an aider/abetter, he would be entitled to the defence under

common lawo Court of Appeal suggested he was a co-perpetrator if he intended to act in concert…. This is

circular logic - approach with caution.

First main distinction then is principle or secondary o Everything else is left in questionso Exclusions - will those be struck down, or will the CL be read to include exclusions?o Right now, we have exclusions in one, but not the other. Is that sustainable?o Second question, activity about criminal organization

Common Law Duress Post- Ryan Is largely the same, shares 5 elements with s.17 It is unclear whether any offences are excluded from this offence, EXCEPT: Aiders and abettors to Murder (Howe) and attempted murder (Gotts) cannot use the common

law defence of murder.

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What Does this Mean for Mens Rea ? Intoxication - we say impairment has compromised ability to perform intent That is NOT the case in duress There has been a debate as to whether duress can negate mens rea. Court says in Paquette that it

is POSSIBLE in some circumstances - compulsion could negate mens rea to commit a criminal act - but they say, what is really happening here, is that the individual has full mens rea. They know what they're doing, they intend to do it (even if they don't want terrible consequences to flow) but they have mens rea. Rather, what is happening here is the recognition of an excuse.

The individual has committed the actus reus, and has the required mens rea, but we excuse them at law, because of this compromised moral involuntariness.

Same concepts in play here as in necessity DIFFERENT than self-defence. Self-defence isn't an excuse, it is a justification. They were JUSTIFIED

in doing what they did, because it was correct in the circumstances. In duress, we don't justify it - we just say you are excused (maybe - depending on whether murder stands as an exclusion)

This discussion arises frequently in the case law Court goes back and forth on this question Hibbert: Appears to be the last word here. It is a lawful excuse, not the negation of mens rea. "Air of reality" test applies, as always - evidentiary burden. Then, Crown must prove beyond a

reasonable doubt that the offence was not committed under duress. Commentary by Martha Schaffer:

o Battered spouses have often committed crimes under duress, and their claims have often been rejected

o We see this at play in Ryan, although this was a very favourable outcome)o Schaffer speculates that judges have often been sceptical of the claims of battered spouses,

and that they have had difficulty in understanding the view of the battered woman that there are no reasonable alternatives

o Imminency and presence are experienced in a different wayo Ryan presented half of these facts - experience of a battered spouse - but we don't actually

have HER being under threat/compulsion by the spouse to commit an act against someone else

o Remains to be left to see how Lavallee and the evidence of the battered spouse might play out in duress

o Novel set of facts to be dealt with by court (exam hint?)o E.g. rob this bank, or I'm going to beat your daughter. This is the kind of set of facts that

might work ehre.o E.g. turn some tricks on the street or I'm going to beat youo E.g. kill this person or I'll beat your daughter - Crown would argue that this isn't proportional

(killing = much worse than beating) Would want to integrate factors in s. 34(2) to assess reasonableness Expert evidence on the psychology of battered spouse syndrome would be vital here

FINAL NOTES: Understand the basic constituent elements of statute versus CL, how are they the same and how are they different, how would you apply them to a new set of facts (and which law would you apply?), and what kind of ideas might you have around reform (aside from clarification/true harmonization). Do you have any thoughts about reform?

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evidence and proof - uvic lss · web viewis required (the word “wilfully” was thus not...

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