Contents
SOURCES OF CRIMINAL LAW...................................4
Frey v Fedoruk, [1950] S.C.R 517....................4
R v Jobidon, [1991] 2 SCR 714........................5
POWER TO CREATE CRIMINAL OFFENCES...............6
R v Malmo-Levine, 2003 SCC 74.....................6
CHARTER OF RIGHTS AND FREEDOMS....................7
Canada (Attorney General) v. Bedford, 2013
SCC 72.............................................................7
R v Oakes, [1986] 1 S.C.R. 103........................7
R. v. Labaye, S.C.C. (2005)..............................8
INTERPRETATION OF CRIMINAL CODE....................9
R v Pare, [1987] 2 S.C.R. 618...........................9
R. v. Mac, [2002] 1 S.C.R. 856.........................9
R. v. Collins, [1987] 1 S.C.R. 265...................10
Canadian Foundation for Children v. A.G.
Canada, S.C.C. (2004) 1 S.C.R. 76..................10
ELEMENTS OF CRIMINAL OR REGULATORY
OFFENCES-ACTUS REUS.........................................11
Definition-Voluntary or Willed Acts..................11
R. v. J.(D.), 2002............................................11
R v Gunning, [2005] 1 S.C.R. 627..................12
Act of possession..............................................12
SUBJECTIVE MENS REA..........................................25
R v. York (2005), 193 C.C.C. (3d) 331 (B.C.C.A)
......................................................................12
R v Marshall, [1969] 3 C.C.C. 149 (Alta. C.A.)
......................................................................13
R v Terrence, [1983] 1 S.C.R. 357.................14
R v Morelli, 2010 SCC 8, [2010] 1 SCR 253...14
Consent as element of Actus Reus...................15
R v Jobidon, [1991] 2 SCR 714......................15
R v J.A, 2011 SCC 28......................................16
R v Mabior, 2012 SCC 47..............................17
CAUSATION.......................................................18
R v Smithers, [1978] 1 S.C.R. 506.................18
R v Nette, [2001] 3 S.C.R. 488.......................19
R v Williams [2003] 2 S.C.R. 488...................20
R v Maybin 2012 SCC 24...............................21
R v Reid, 2003 NSCA 104..............................22
OMISSION- ACTUS REUS...................................23
R v Moore, [1979] 1 S.C.R. 195.....................23
R v Peterson, [2005] O.J. No. 4450 (Ont. C.A.),
leave to appeal refused...............................24
R v Browne (1997), 166 C.C.C. (3d) 183 (Ont.
C.A.)..............................................................25
INTENTION, ULTERIOR MENS REA....................25
R. v. Vandergraff, [1994] M. J. No. 503 (Man.
C.A.)..............................................................26
R. v. Murray, [2000] O.J. No. 2182 (Ont. S.C.J)
......................................................................26
R v J.S.R., 2008 O.N.C.A. 544........................27
R. v Roks, 2011 ONCA 526............................27
SUBJECTIVE MENS REA WITH OBJECTIVE
FEATURES..........................................................28
R. v Chase, [1987] 2 S.C.R. 293.....................28
R v Theroux, [1993] 2 S.C.R. 5.......................28
KNOWLEDGE.....................................................29
R v Ewanchuk, [1999] 1 S.C.R. 330...............29
R v Levigne, [2010] 2 S.C.R. 3........................30
R. v ADH, 2013 SCC 28..................................31
WILLFUL BLINDNESS.........................................31
R. v. Currie (1975) 24 C.C.C. (2d) 292 (Ont.
C.A.)..............................................................31
R. v. Vinokurov, 2001 ABCA 113 (Alta C.A.)..32
R. v. Briscoe, 2010 SCC 13............................32
RECKLESSNESS...................................................33
R. Theroux, [1979] 2 S.C.R. 5........................33
R. v. Buzzanga and Durocher [1979] 49 C.C.C.
(2d) 369 (Ont. C.A.).......................................34
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OBJECTIVE MENS REA AND TRUE CRIMES............34
R. v. Martineau [1990] 2 S.C.R. 633..............34
Marked departure test.....................................35
R. v. Creighton [1993] 3 S.C.R. 3...................35
R. v. Beatty, 2008 SCC 5................................36
REGULATORY OFFENCES.......................................36
R. v Sault Ste. Marie, [1978] 2 S.C.R. 1299...37
Reference Re B.C. Motor Vehicle Act, [1985] 2
SCR 486.........................................................37
R v Raham, 2010 ONCA 206.........................38
Levis (City) v. Tetreault, 2006 SCC 12...........39
R v Wholesale Travel Inc. [1991] 3 S.C.R. 154
......................................................................39
EXTENSIONS OF CRIMINAL LIABILITY....................40
AIDING AND ABETTING.....................................40
R v Dunlop and Sylvester, [1979] 2 S.C.R. 881
......................................................................40
R v Logan, S.C.C. (1990)................................41
R. v. Briscoe, 2010 SCC 13............................42
R v Thatcher, [1987] 1 S.C.R. 652.................42
R v JF, 2013 SCC 12.......................................43
R v Gauthier, 2013 SCC 32............................44
COUNSELLING...................................................45
R v Hamilton, [2005] 2 S.C.R. 432.................45
ATTEMPTS.........................................................46
R. v. Ancio [1984] 1 S.C.R. 225......................46
R v Deustch, [1986] 2 S.C.R. 2.......................46
R v Dery, 2006 SCC 53...................................47
DEFENCES..............................................................49
MENTAL DISORDER...........................................49
R v Cooper. [1980] 1 S.C.R. 1149..................49
R v Kjeldson, [1981] 2 S.C.R. 617..................50
R v Oommen, [1994] 2 S.C.R. 507.................50
AUTOMATISM AND INVOLUNTARY ACTS.........51
R v Swaby, [2001] O.J. No. 2390 (Ont. C.A.). 51
R v Parks, [1992] 2 S.C.R. 871.......................52
R v Stone, [1999] 2 S.C.R. 290......................53
R v Fontaine, [2004] 1 S.C.R. 702..................54
R v Luedecke, 2008 ONCA 716.....................54
SIMPLE INTOXICATION......................................55
The Queen v. George [1960] S.C.R. 871.......55
R v Robinson, [1996] 1 S.C.R. 683.................56
EXTREME INTOXICATION..................................57
R v Daviault, [1994] 3 SCR 63........................57
R v Bouchard-Lebrun, 2011 SCC 58..............58
SELF DEFENCE...................................................58
R v Lavallee, [1990] 1 S.C.R. 852...................58
NECESSITY.........................................................59
R v Latimer, [2001] 1 S.C.R. 3.......................59
DURESS..............................................................60
R v Ryan, 2013 SCC 3....................................60
PROVOCATION..................................................61
R v Tran, [2010] 3 S.C.R. 350........................61
ENTRAPMENT....................................................62
R v Mack, [1988] 2 S.C.R. 903.......................62
R v Barnes, [1991] 1 S.C.R. 449.....................63
IGNORANCE OF THE LAW.................................63
Lilly v The Queen, [1983] 1 SCR 794.............63
R v Jones, [1991] 3 SCR 110..........................64
Levis (City) v. Tetreault, 2006 SCC 12...........65
R. v. MacDonald, 2014 SCC 3........................65
ADVERSARIAL PROCEEDING..................................66
Presumption of Innocence and Ultimate
Standard of Proof..............................................66
R. v. Lifchus, [1997] 3 S.C.R. 320...................66
R. v. Starr [2002] 2 S.C.R. 144.......................67
R v J.H.S., 2008 SCC 30..................................67
OTHER BURDENS...............................................68
R. v. Arcuri, S.C.C. (2001)..............................68
R v Cinous, 2002 SCC 29...............................69
R v Cinous, 2002 SCC 29...............................69
R. v. Fontaine, S.C.C. (2004).........................70
R. v. Oakes, S.C.C. (1986)..............................70
NEUTRAL IMPARTIAL TRIER..............................71
R. v. Gunning, [2005] 1 S.C.R 627.................71
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 R. v. Hamilton, [2004] O.J. No. 3252 (Ont. R. v. Aucoin, 2012 SCC 66.............................77 JURY TRIAL........................................................85
C.A.)..............................................................71 R. v. Cole, 2012 SCC 53.................................78 R v Williams [1998] 1 S.C.R. 1128.................85
ROLE OF PROSECUTOR......................................72 R. v. Spencer, 2014 SCC 43...........................79 R v Find 2001 SCC 32....................................85
Krieger v. Law Society of Alberta, [2002] 2 R. v. MacDonald, 2014 SCC 3........................80 R v YUMNU, 2012 SCC 73.............................86
S.C.R. 372.....................................................72
ARREST AND BAIL..............................................81 SENTENCING..........................................................87
R. v. Nixon, 2011 SCC 34...............................73
R. v. Hall, S.C.C. (2002)..................................81 R v Nasogaluak [2010] 1 S.C.R 206...............87
R. v. Babos, 2014 SCC 16..............................74
DISCLOSURE......................................................82 R v C.A.M, [1996] 1 S.C.R 206.......................87
R. v. Anderson, 2014 SCC 41.........................75
R v Stinchcombe, [1991] 3 S.C.R. 326...........82 R v Gladue [1999] 1 S.C.R. 688.....................88
GETTING READY FOR TRIAL...................................76
R v O’Connor, [1995] 4 S.C.R. 411................83 R v Ferguson 2008 SCC 6..............................89
POLICE POWERS................................................76
R v McNeil 2009 SCC 3..................................83 R v Morrisey, 2000 SCC 6..............................89
R. v. Grant, 2009 SCC 32...............................76
PRELIMINARY ENQUIRY.........................................84 R v Pham, 2013 SCC 15.................................90
R. v. Suberu, 2009 SCC 33.............................77
R v Acuri [2001] 2 S.C.R. 828........................84

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SOURCES OF CRIMINAL LAW

Frey v Fedoruk, [1950] S.C.R 517

Common law cannot create criminal offences, only Parliament (statutes) can.
FACTS Peeping tom case.

ISSUE Can someone be arrested for a crime not defined in CC? Can the common law define an offence, not previously defined in CC?

PRINCIPLE Criminal offences can only be created by Statute/Parliament.

NOTES SC concluded that only Parliament can decide what is an offence in CC otherwise law would be too confusing. “If ay course of
From conduct is now to be declared criminal, which has not upto the present time been so regarded, such declaration should be
judgement made the Parliament and not the Courts”.
S. 9 of CC: No person shall be convicted or discharged under section 730
(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great
Britain and Ireland, or
Other Notes (c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or
place became a province of Canada,

but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court
judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

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 Levis (City) v Tetrault [2006] 1 SCR 420
Common law cannot create criminal offences, only Parliament (statutes) can.
FACTS Peeping tom case.

ISSUE Can someone be arrested for a crime not defined in CC? Can the common law define an offence, not previously defined in CC?

PRINCIPLE Criminal offences can only be created by Statute/Parliament.

NOTES SC concluded that only Parliament can decide what is an offence in CC otherwise law would be too confusing. “If ay course of
From conduct is now to be declared criminal, which has not upto the present time been so regarded, such declaration should be
judgement made the Parliament and not the Courts”.
S. 9 of CC: No person shall be convicted or discharged under section 730
(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great
Britain and Ireland, or
Other Notes (c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or
place became a province of Canada,

but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court
judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

R v Jobidon, [1991] 2 SCR 714

Defence created by common law/meaning of consent- keep in mind, only ‘offences’ are defined in CC (defenses or argument for defences can be
common law)
Jobidon and victim had a bar fight leading to fist fight. Jobidon attacked the victim and then continued to plummet after victim
FACTS
was unconscious. Victim died.
ISSUE Is absence of consent a material element that must be proved by the Crown in all cases of assault?

JUDGEMENT Appeal dismissed.

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 PRINCIPLE Consent is not a factor in assault leading to death.

Reasons Jobidon’s argument that both parties consented to the fight and since the charge of assault must ‘lack consent’, he cannot be
For convicted of manslaughter. The court rejects this, citing S 14 CC (you cannot consent to imposition of death). Consent is
judgement recognized when bodily harm is trivial. Jobidon continued to attack the victim after he was unconscious.
CC Section 8 (3). Every rule and principle of the common law that renders any circumstance a justification or excuse for an act
or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act
Other Notes
of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

POWER TO CREATE CRIMINAL OFFENCES

R v Malmo-Levine, 2003 SCC 74

Malmo-Levine was charged with possession and trafficking of marijuana. He ran a non-profit helping people reduce the harms
associated with marijuana and teaching them "safe practices". His clinic was searched and a large amount of marijuana was
FACTS
found. He tries to challenge the prohibition's constitutional validity. He was convicted and the Court of Appeal, in a majority
decision, upheld the conviction.
ISSUE Was the law valid?

JUDGEMENT Appeal dismissed

PRINCIPLE Criminal law power extends to laws designed to promote public peace, safety, order, health or other legitimate public purpose
For law to be classified as criminal law, 3 requirements:
(i) valid criminal law purpose,
Reasons
(ii) backed by prohibition,
For
(iii) and a penalty;
judgement
Criminal law power extends to laws designed to promote public peace, safety, order, health or other legitimate public purpose
(para. 74)

CHARTER OF RIGHTS AND FREEDOMS

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 Canada (Attorney General) v. Bedford, 2013 SCC 72
The applicants, argued that Canada's prostitution laws were unconstitutional. CC includes a number of provisions, such as
outlawing public communication for the purposes of prostitution, operating a bawdy house or living off of the avails of
FACTS prostitution, even though prostitution itself is legal.
The applicants argued that the laws deprive prostitutes of their right to security by forcing them to work secretly. Court of
appeal ruled that some, but not all, of these prohibitions violated the Charter.
ISSUE Are the laws unconstitutional

The SC ruled in a 9-0 decision that all of these laws are unconstitutional; although, it delayed the striking down of the laws by
JUDGEMENT
one year to allow Parliament to update the laws in accordance with the ruling.
This case concerns the basic values against arbitrariness (where there is no connection between the effect and the object of the
law), overbreadth (where the law goes too far and interferes with some conduct that bears no connection to its objective), and
gross disproportionality (where the effect of the law is grossly disproportionate to the state’s objective)
NOTES
The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently
From
bad; a grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.
judgement
Concluding that each of the challenged provisions violates the Charter does not mean that Parliament is precluded from
imposing limits on where and how prostitution may be conducted, as long as it does so in a way that does not infringe the
constitutional rights of prostitutes. 

R v Oakes, [1986] 1 S.C.R. 103

Oakes charged with unlawful possession of narcotic for purpose of trafficking. Oakes claims s.8 of Narcotics Act violates
presumption of innocence contained in s.11(d) of Charter (presumption of innocence). That section provides that if the Court
FACTS
finds the accused in possession of a narcotic, presumption is that possession was for trafficking and burden of proof is on accused to
prove that it was not intended for trafficking.
Whether S.8 of Narcotics Act violated S. 11(d) of charter and whether it could be saved under S.1 of Charter (reasonable limit
ISSUE
for public good)

JUDGEMENT S. 8 Narc Act violates 11(d) of Charter

NOTES • “reverse onus” provision under Narcotic Control Act violates s.11(d) Charter presumption of innocence; accused must
From rebut presumption that in possession of drugs for purposes of trafficking – no rational connection between basic fact
judgement of possession and presumed fact of possession for purpose of trafficking – not saved by s.1
Court proposes a two part test( Oakes test):
1. The purpose of the law must be important to society or be designed to promote a sufficiently important objective.
2. Proportionality: should be proportionate to objective

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 (i) Rational Connection: connected to the end the government seeks to achieve
(ii) Minimal Impairment: minimally impairs the rights in the Charter
(iii) Proportionality between means and effect: The law does not have a disproportionately severe effect on those
whose rights it infringe

R. v. Labaye, S.C.C. (2005)

Accused operated a club in Montréal for group sex. Accused charged with practice of acts of indecency under s.  210(1) of the
CC. The club had three floors.  The first floor was occupied by a bar, the second a salon, and the third the “apartment” of the
accused.  Entry to the club and participation in the activities were voluntary.  At trial, the accused was convicted.  The trial
FACTS judge found that the accused’s apartment fell within the meaning of “public place”, under s. 197(1) CC.  She also found social
harm in the fact that sexual exchanges took place in the presence of other members of the club.   She concluded that this
conduct was indecent under the Code because it was degrading and dehumanizing. A majority of the Quebec Court of Appeal
upheld the accused’s conviction.
JUDGEMENT The appeal should be allowed and the accused’s conviction set aside.

NOTE Opinion of Minority- presumption that statutes are presumed to be constitutionally valid
• Majority: autonomy and liberty of public not affected by unwanted confrontation with sexual conduct in question, only
those disposed to this sort of sexual activity allowed to participate and watch.
NOTES
• Minority: Whether or not serious social harm is sustained has never been the determinative test for indecency.   The
From
existence of harm is not a prerequisite for exercising the state’s power to criminalize certain conduct: the existence of
judgement
fundamental social and ethical considerations is sufficient.
Community does not tolerate acts of this nature in place of business to which public has easy access, consent of
participants, observers not determinative .

INTERPRETATION OF CRIMINAL CODE

R v Pare, [1987] 2 S.C.R. 618

Purposive interpretation of statute
FACTS The accused murdered a young boy two minutes after indecently assaulting him. The killing was motivated by fear that the child
would tell his mother about the incident. At trial, the jury found the accused guilty of first degree murder. At the time of the offence,

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 definition provided that "murder is first degree murder in respect of a person when the death is caused by that person while
committing an offence under section . . . 156 (indecent assault on a male)". The Court of Appeal dismissed the accused's appeal but
substituted a verdict of second degree murder for the jury's verdict of first degree murder.
ISSUE This appeal is to determine whether the accused murdered the child "while committing" the indecent assault.

JUDGEMENT Appeal to be allowed. Conviction of first degree murder restored.

PRINCIPLE Purposive interpretation of statute

NOTES The words ‘while committing’ do not require both acts to be done simultaneously. They should constitute one continuous
From sequence of events.
judgement Narrow interpretation of statute may not be reasonable or reflect policy considerations underlying provision.

– Interpretation of the criminal code d) French/ English

R. v. Mac, [2002] 1 S.C.R. 856
Interpretation of French/English versions
Accused charged with being in possession of various machines and materials adapted and intended to be used in forging credit
FACTS cards – Proper interpretation of word “adapted” in s. 369(b) of Criminal Code – Ambiguity arising from English version of
Criminal Code resolved by clear language in French version.
ISSUE Proper interpretation of the word “Adapted”

JUDGEMENT French version to be adapted

When there is ambiguity in statute, both English and French versions to be read. Ambiguity to be resolved in favor of clearer
PRINCIPLE
version.

NOTES In this case, any ambiguity arising from the English version is resolved by the clear and unambiguous language of the French
From version of s. 369(b). There is therefore no need to resort to further rules of statutory interpretation, such as those invoked by
judgement the Court of Appeal.

R. v. Collins, [1987] 1 S.C.R. 265

FACTS Appellant had been under surveillance by 2 members of the RCMP. A police officer approached her in a pub, said he was a

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 police officer, grabbed her throat and pulled her to the floor. The throat hold is used to prevent someone from swallowing
drug. She has a bag of heroine in her hand. Officers did not have warrant for search.
ISSUE Should the drugs found in her hand be excluded from trial under S. 24(2) of Charter?

Difference between English and French versions of S. 24(2)- English version uses the words “Would bring administration of
justice into disrepute” while French uses “Could bring…into disrepute”.
NOTES
As one of the purposes of s. 24(2) is to protect the right to a fair trial, the French text should be favored as it better protects that
From
right.
judgement
S. 24(2) should thus be read as "the evidence shall be excluded if it is established that, having regard to all the circumstances, the
admission of it in the proceedings could bring the administration of justice into disrepute".
 

– Interpretation of the criminal code e) the Charter

Canadian Foundation for Children v. A.G. Canada, S.C.C. (2004) 1 S.C.R. 76

Charter and interpretation of Code
The appellant, the Canadian Foundation for Children, Youth and the Law, appealed against the refusal of the Court of Appeal for
Ontario to issue a declaration that s. 43 of the Criminal Code, which justified the reasonable use of force by way of correction by
FACTS
parents and teachers against children in their care, violated ss. 7, 12 and 15(1) of the Canadian Charter of Rights and Freedoms
(the Charter).
ISSUE Is S. 43 of the CC infringement of the Charter?

JUDGEMENT The Court dismissed the appeal holding that s. 43 of the Code did not infringe ss. 7, 12 and 15 of the Charter.

NOTES S.43 adversely affects children’s security of person, but does not offend principle of natural justice. There were proper
From safeguards under s. 43 to protect child’s interests. Neither is the section unduly vague or overbroad – sets out real boundaries,
judgement delineates risk zone for criminal sanction, avoids discretionary law enforcement

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ELEMENTS OF CRIMINAL OR REGULATORY OFFENCES-ACTUS REUS
Definition-Voluntary or Willed Acts

R. v. J.(D.), 2002
Definition of Actus Reus
Two police officers were investigating a break and enter. Police dog led them to a park where JD matched the description of the
offender. Police officers called JD but he sped away. JD then went to an acquaintance’s house and rang the bell. Friend
answered the door and JD told her to tell the cops that he lived there. JD tried to escape from the back door of friend’s house
FACTS but it was blocked with a couch. The police arrested JD without incident. Ontario C of Justice acquitted JD of charged against
forcible entry for which the police arrested him but the court convicted him for forcible entry into the friend’s house. JD is
appealing that decision.

ISSUE Do the appellant’s actions fall within the definition of ‘breaking and entering’ under S. 72(1) of Criminal code?

JUDGEMENT Acquitted

Actus reus and mens rea not present.

PRINCIPLE
Prohibited entry must interfere with the peaceful possession of the owner, at the time of entry. The appellant’s friend opened
the door and the friend’s mother was not surprised to see the appellant in the house.
NOTES
The appellant also did not have any ‘intention’ to take possession of the property at the time of entry.
From
Entry was without any force, violence or threat. He had been in the residence before and entered with permission. No basis to
judgement
conclude that he entered forcefully or disturbed the peaceful possession of the residence owners.

Other Notes Good case for Actus Reus (No Actus Reus)

R v Gunning, [2005] 1 S.C.R. 627

Accused shoots trespasser, but claims firing of gun accidental, meant only to intimidate trespasser, not intentional firing of
FACTS weapon

Page | 11
 JUDGEMENT The appeal should be allowed. The conviction should be set aside and a new trial ordered.

PRINCIPLE Hierarchy of offences (Murder, Manslaughter, Assault [if victim not dead])
In this case, if the jury was satisfied that the accused intended to kill C, the unlawful act that caused the death would be the
NOTES shooting itself and the accused would be guilty of murder.
From If the Crown failed to prove an intent to kill, the accused would be guilty of manslaughter only if he was guilty of the unlawful
judgement act of careless use of a firearm.
If the jury had a reasonable doubt on this question, he was entitled to an acquittal.

Act of possession

1) Knowledge

R v. York (2005), 193 C.C.C. (3d) 331 (B.C.C.A)

Significance: Manual Possession
York had leased warehouse property with a partner and was assisted by two other people. One day he found stolen property in
FACTS his warehouse. He was aware that the property was stolen. He hired a trailer and drove the stolen property away from his
warehouse. He was apprehended for being in possession of property that he knew was stolen.
ISSUE Does it constitute “possession” if someone knowingly takes brief control of goods that he knows are stolen?

JUDGEMENT Acquited. Reasonable doubt for possession charges.

PRINCIPLE Possession cannot be proved without knowledge, control and intention at the same time.

NOTES
Act of Possession requires knowledge and control. It also requires intention to use the property for some personal use.
From
Intention could not be established.
judgement
Important [10] In order to prove possession the Crown must establish the following:
paras from (1)      manual or physical handling of the prohibited object;
Judgement (2)      knowledge; and
(3)      control.

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 Para [11]   Thus, the offence of possession is made out where there is the manual handling of an object co-existing with the
knowledge of what the object is, and both these elements must co-exist with some act of control. 

[20] I think the law can be summarized as follows.  Personal possession is established where an accused person exercises
physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be,
and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in
some prohibited manner.  The judge convicted the appellant on the grounds that the appellant knew that the goods were
stolen, and that he exercised physical control over them without notifying the police or the rightful owners.  The
blameworthiness of this conduct fell short of that required for a conviction for a crime of dishonesty.  

2) Consent

R v Marshall, [1969] 3 C.C.C. 149 (Alta. C.A.)

Joint Possession not established due to lack of control
Marshall in car with others who smoke marihuana. Marshall had knowledge of presence of drugs, but no control, right to
FACTS
control, or consent to its presence. The cops stopped the car twice and the second time, marihuana was caught.
Can joint possession be established if someone has knowledge but does not consent to the possession of illegal substance in the
ISSUE
car?

JUDGEMENT Acquitted. Joint possession requires knowledge and consent.

PRINCIPLE Knowledge and control are required to establish possession (or joint possession).

NOTES Accused had the knowledge but no control over the substance. Choice facing accused was to leave car and risk hitch
From hiking to return to school on time, or staying in car with drugs – accused lacked power to control persons in car
judgement possessing drug, not owner of car.

3) Control

R v Terrence, [1983] 1 S.C.R. 357

Joint possession- consent required along with knowledge and consent

FACTS Accused was driving in a stolen car. He testified that he had no knowledge that the car was stolen. He believed that the car
belonged to his friend’s brother in law. Trial court rejected this claim even though there was nothing to contradict the
statement of accused. Court of appeal quashed the decision stating that some element of control is necessary to establish

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 possession. SC appeal brought by crown against court of appeal’s decision.
ISSUE Whether the word “possession” used in s. 3(4)(b) of the Code imports control as essential element.

JUDGEMENT Appeal dismissed.

under Joint possession in S. 3(4)(b) of CC, ‘knowledge and consent’ cannot exist without some measure of ‘control’ over the
PRINCIPLE
property.

NOTES A measure of control on the part of the person deemed to be in possession is a constituent and essential element of
From possession under s. 3(4)(b) of the Criminal Code. The “knowledge and consent” required cannot exist without some
judgement measure of control over the subject-matter.- (second last para of judgement)

R v Morelli, 2010 SCC 8, [2010] 1 SCR 253

Possession of electronic data- For possession, always differentiate intangible property from tangible property
An accused is charged with possession of child pornography. During his trial, the court applies the criminal standard of proof
FACTS
beyond a reasonable doubt. The evidence is clear. He is found guilty.
Does possession of illegal image in computer means possession of underlying data file?
ISSUE
Can possession be established even if accused did not download image?

JUDGEMENT No possession.

PRINCIPLE Possession of electronic data

NOTES Merely viewing in web browser illegal image stored in remote location on Internet does not establish level of control
From necessary for possession – possession of digital images in computer, rather than tangible objects, but possession of
judgement image in computer means possession of underlying data file, not its mere visual depiction.
Jugement [28] Interpreting possession to apply only to the underlying data file is also more faithful to a traditional understanding of
paras what it means to “possess” something.  The traditional objects of criminal possession — for example, contraband, drugs, and
illegal weapons — are all things that could, potentially at least, be transferred to another person.

[29] Without storing the underlying data, however, an image on a screen cannot be transferred.   The mere possibility of
sharing a link to a Web site or enlarging the visual depiction of a Web site, as one could “zoom in” on   a TV screen image, is
insufficient to constitute control over the content of that site.  It is indeed the underlying data file that is the stable “object”
that can be transferred, stored, and, indeed, possessed.  More broadly, the object possessed must itself have some sort of

Page | 14
 permanence.
 
[30] Thus, while it does not matter for the purposes of criminal possession how briefly one is in possession of the object, the
thing said to be culpably possessed cannot — like a broadcast image flickering across a TV screen or a digital image displayed
transiently on-screen — be essentially evanescent.

Consent as element of Actus Reus

R v Ewanchuk

R v Jobidon, [1991] 2 SCR 714

Consent
Jobidon and victim had a bar fight leading to fist fight. Jobidon attacked the victim and then continued to plummet after victim
FACTS
was unconscious. Victim died.
ISSUE Is absence of consent a material element that must be proved by the Crown in all cases of assault?

JUDGEMENT Appeal dismissed.

PRINCIPLE Consent is not a factor in assault leading to death.

Reasons Jobidon’s argument that both parties consented to the fight and since the charge of assault must ‘lack consent’, he cannot be
For convicted of manslaughter. The court rejects this, citing S 14 CC (you cannot consent to imposition of death). Consent is
judgement recognized when bodily harm is trivial. Jobidon continued to attack the victim after he was unconscious.

Comments: s.265 should be read in light of common law limitations on consent, Code provisions have not ousted common law
Other Notes limitations – victim’s consent to “fair fight” did not preclude commission of offence of assault

Page | 15
 R v J.A, 2011 SCC 28
Accused and complainant engaged in sexual activity of asphyxiation. Complainant lost consciousness and accused performed
FACTS anal act. Complainant later filed complained saying she consented to being asphyxiated but did not consent to the act
performed during unconscious period. Later she recanted statement but case still filed.
ISSUE Whether prior consent is applicable in sexual acts.

JUDGEMENT Appeal allowed, respondent’s conviction of sexual assault restored.

Complainant cannot consent in advance to sex acts that committed later when she is unconscious; Parliament has
defined consent in way that person must be conscious throughout sexual activity (para. 37 consent as actus reus
element (did complainant subjectively consent in her mind), and mens rea element (did accused believe believe
complainant communicated consent)) Summary para 66 complainant must provide actual active consent through
every phase of sexual activity
Para 37: The provisions of the Criminal Code that relate to the mens rea of sexual assault confirm that individuals must be
conscious throughout the sexual activity.  Before considering these provisions, however, it is important to keep in mind the
differences between the meaning of consent under theactus reus and under the mens rea:  Ewanchuk, at paras. 48-49.  Under
the mens rea defence, the issue is whether the accused believed that the complainantcommunicated consent.  Conversely, the
NOTES only question for the actus reus is whether the complainant was subjectively consenting in her mind.  The complainant is not
From required to express her lack of consent or her revocation of consent for the actus reus to be established.
judgement Para [66] The definition of consent for sexual assault requires the complainant to provide actual active consent throughout
every phase of the sexual activity.  It is not possible for an unconscious person to satisfy this requirement, even if she
expresses her consent in advance.  Any sexual activity with an individual who is incapable of consciously evaluating whether
she is consenting is therefore not consensual within the meaning of the Criminal Code.
R. v. Ewanchuk, S.C.C. (1999) – actus reus of sexual assault requires proof of touching, sexual nature of contact,
absence of consent; no defence of implied consent to sexual assault exists in Canada – to be legally effective, consent
must be freely given
Ewanchuk @ para 26: the only relevant period of time for the complainant’s consent is while the touching is
occurring.

Page | 16
 R v Mabior, 2012 SCC 47
Vitiating consent by reason of fraud-
“Consent a requirement to prevent charge of sexual assault”
CC 265(3)(c ): No consent is obtained where the complainant submits or does not resist by reason of fraud

Accused was HIV positive with low viral load and had sex with several women, with or without condom. Complainants
had all consented to sex but accused did not inform them about his HIV status. Crown brought a charge of aggravated
FACTS assault under S 265(3)(c) of CC.
Trial court found accused guilty of aggravated sexual assault (no consent due to fraud), Appeals court set aside
conviction. Matter went to SC finally.
Whether having sex with a HIV positive person, without being informed about his health, vitiated consent by reason of
ISSUE
fraud.

JUDGEMENT Appeal allowed in part (reference to complainants who had sex without condom)
At para [94]: This leaves the question of when there is a realistic possibility of transmission of HIV. The evidence
adduced here satisfies me that, as a general matter, a realistic possibility of transmission of HIV is negated if:
(i) The accused’s viral load at the time of sexual relations was low, and
(ii) Condom protection was used.

Reason: Court examined whether the Cuerrier test applied:

NOTES (i) Was there a dishonest act; and
From (ii) Did that lead to deprivation (denying knowledge of HIV to complainants, which would have caused them
judgement to refuse sexual relations that exposed them to significant risk of bodily harm)
Court determined that the absence of realistic possibility of HIV transmission precludes a finding of fraud vitiating
consent under S 265(3)(c) of CC.
In this case, no ‘realistic possibility of transmission’ was established with complainants with whom accused had sex
with condom.
For all others (with whom sex was without protection), appeal was allowed.

CAUSATION

R v Smithers, [1978] 1 S.C.R. 506

FACTS Accused and deceased were players in opposing teams. During game, a fight broke out. After game accused caught up with
deceased and kicked him in stomach. Deceased died due to aspiration of foreign materials present from vomiting.

Page | 17
 Trial court convicted accused of manslaughter. Accused appealed, appeal court dismissed appeal. Now appeal in SC.

ISSUE Was the kick a sufficient cause of the death to attract criminal liability?

JUDGEMENT Appeal dismissed. Conviction upheld.

PRINCIPLE The "thin skull" rule applies in criminal law as in tort law.
Kick had to be an "operating clause outside of the de minimis range" (ie: a contributing cause that is not trivial or insignificant)
in order for it to be deemed the cause of death, that is, the Crown had to prove that the kick caused the vomiting, and that the
vomiting caused the death. Judge accepts the Crown's argument that this was outside the de minimis range, as the thin skull
rule applies in criminal law and therefore the kick led to the victim's reaction that resulted in death. This is a lower standard
than the Smith test, which is what the defence wanted to be used. The Smithers test needs a lower threshold of causation to be
NOTES
proven in order to get the conviction
From
Ratio: An action only has to be an operating cause outside of the de minimis range in order to be deemed the cause of a
judgement
prohibited result in criminal law; a lower threshold of causation than was required in the Smith test.
The "thin skull" rule applies in criminal law as in tort law.
Important judgement part: Death may have been unexpected, and the physical reactions of the victim unforeseen, but that
does not relieve the appellant.

R v Nette, [2001] 3 S.C.R. 488

Facts: Elderly victim robbed and bound with electrical wire on bed, garment around head and neck, dies in next 48 hours from
FACTS
asphyxiation.
ISSUE What is the threshold test of causation for 2nd degree murder?

JUDGEMENT Conviction stays.

PRINCIPLE There is only one standard of causation for homicide offences – Smithers.
2nd degree murder – accused must be contributing cause beyond de minimis range (ie. Significant contributing cause of death).
[see judgement para 71]
Must show that they caused the death both on fact and law: [see para 44-45]
(a) Factual causation – inquiry about how the victim came to her death – medical, mechanical and physical sense;
(b) Legal causation (imputable causation) – accused’s responsibility in law, informed by legal considerations such as wording
of offence, principles of interpretation. (Basically, should the accused be held responsible in law for the death that occurred
given his level of involvement?)

Page | 18
 NOTES [Para 44] In determining whether a person can be held responsible for causing a particular result, in this case death, it must be
From determined whether the person caused that result both in fact and in law. 
judgement Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical,
mechanical, or physical sense, and with the contribution of the accused to that result.  Where factual causation is established,
the remaining issue is legal causation. 
[Para 45] Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the
accused person should be held responsible in law for the death that occurred.  It is informed by legal considerations such as the
wording of the section creating the offence and principles of interpretation.  These legal considerations, in turn, reflect
fundamental principles of criminal justice such as the principle that the morally innocent should not be punished. In
determining whether legal causation is established, the inquiry is directed at the question of whether the accused person
should be held criminally responsible for the consequences that occurred.   
When one has settled the question of but-for causation, the further test to be applied to the but-for cause in order
to qualify it for legal recognition is not a test of causation but a moral reaction.  The question is whether the result
can fairly be said to be imputable to the defendant. . . .  If the term “cause” must be used, it can best be
distinguished in this meaning as the “imputable” or “responsible” or “blamable” cause, to indicate the value-
judgment involved.  The word “imputable” is here chosen as best representing the idea.  Whereas the but-for
cause can generally be demonstrated scientifically, no experiment can be devised to show that one of a number of
concurring but-for causes is more substantial or important than another, or that one person who is involved in
the causal chain is more blameworthy than another.

[Para 71] The causation standard expressed in Smithers is still valid and applicable to all forms of homicide.  In addition, in the
case of first degree murder under s. 231(5) of the Code, Harbottle requires additional instructions, to which I will return.  The
only potential shortcoming with the Smithers test is not in its substance, but in its articulation.  Even though it causes little
difficulty for lawyers and judges, the use of Latin expressions and the formulation of the test in the negative are not particularly
useful means of conveying an abstract idea to a jury.  In order to explain the standard as clearly as possible to the jury, it may
be preferable to phrase the standard of causation in positive terms using a phrase such as “significant contributing cause”
rather than using expressions phrased in the negative such as “not a trivial cause” or “not insignificant”.  Latin terms such as
“de minimis” are rarely helpful.

Judgement regarding higher degree of causation for first degree murder:

[Para 73]   In light of Harbottle, where the jury must be instructed on first degree murder under s. 231(5) of the Code in
addition to manslaughter or second degree murder, the terminology of “substantial cause” should be used to describe the
applicable standard for first degree murder so that the jury understands that something different is being conveyed by the
instructions concerning s. 231(5) of the Code with respect to the requisite degree of participation of the accused in the offence. 
In such cases, it would make sense to instruct the jury that the acts of the accused have to have made a “significant”
contribution to the victim’s death to trigger culpability for the homicide while, to be guilty of first degree murder under s.
231(5), the accused’s actions must have been an essential, substantial and integral part of the killing of the victim.

Page | 19
 R v Williams [2003] 2 S.C.R. 488
Accused has unprotected sex with victim, learns after 5 months he is HIV positive but fails to inform victim, however victim
FACTS
likely already HIV positive by this time.
JUDGEMENT The appeal should be dismissed.

To constitute aggravated assault by endangering life of victim, s.268, actus reus and mens rea must coincide – before date
NOTES
accused aware of condition there was endangerment but no intent, afterwards intent but reasonable doubt as to
From
endangerment; accused guilty of attempted aggravated assault, not aggravated assault
judgement

R v Maybin 2012 SCC 24

Breaking chain of causation- analysis

Accused punches victim in head in bar fight, renders him unconscious, third party also punches victim in head, dies from
injuries, issue is whether intervening act by other person severs causation chain, Supreme Court holds that in intervening act
FACTS cases, causation test remains whether dangerous and unlawful acts of accused are a significant contributing cause of victim’s
death

ISSUE issue is whether intervening act by other person severs causation chain

PRINCIPLE Analysis of break in chain of causation

NOTES Analysing whether an intervening act absolves accused of manslaughter.
From
judgement Both the “reasonable foreseeability” and the “intentional, independent act” approach may be useful, depending on the facts.
(i) Intervening act reasonably foreseeable to accused may not break chain of causation
(ii) An independent and intentional act by third party may sometimes break the chain of causation

Even where there has been intervening act, question remains whether dangerous and unlawful acts of accused are significant
contributing cause of victim’s death.

Page | 20
 “Reasonable foreseeability” approach suggests that where accused undertaking dangerous act contributes to death, he
should bear the risk that other foreseeable acts may intervene and contribute to that death. The harm that actually
transpired must flow reasonably from conduct of accused. Then accused’s actions may remain significant contributing
cause of death.

Whether an intervening act is independent is sometimes framed as a question of whether the intervening act is a response to
the acts of the accused.  In other words, did the act of the accused merely set the scene, allowing other circumstances to
(coincidentally) intervene, or did the act of the accused trigger or provoke the action of the intervening party?  If the
intervening act is a direct response or is directly linked to the accused’s actions, and does not by its nature overwhelm the
original actions, then the accused cannot be said to be morally innocent of the death.

R v Reid, 2003 NSCA 104

Causation and intervening event

Victim assaulted in fight with accused, but botched resuscitation efforts result in vomit being forced into lungs, victim dies;
question to resolve is whether acts of accused are significant contributing cause of death, and whether intervening cause
FACTS occurs between accused’s acts and death of victim – any independent, intervening and therefore exculpatory factors that occur
after accused’s acts, thereby severing link in chain that tied them to death of victim (para. 62); explanation of causation para 89

whether acts of accused are significant contributing cause of death and whether intervening cause occurs between accused’s
ISSUE acts and death of victim

NOTES Intervening causes do constitute a unique category of case such that in circumstances like these where, upon the evidence, the
From failed attempts at CPR clearly interrupted and therefore separated the acts of Accused from victim’s ultimate death.
judgement
Causation:

In order to be satisfied beyond a reasonable doubt that the accused caused the death of victim, questions to be considered are:

(i) Whether the accused’s unlawful acts in fact amounted to a significant contributing cause of victim’s death?
(ii) If yes, then whether any intervening cause which resulted in victim’s death occurred between the accused’s acts
and the victim’s death? 
(iii)

It is enough for the Crown to prove to the Jury’s satisfaction that the actions of accused, were a significant contributing cause of
victim’s death.

Page | 21
  Intervening event:

The next question to consider is whether actions (which has been confirmed by doctors as cause of victim’s death) of those on
scene to resuscitate the victim, an intervening event that broke the chain of causation between accused’s action and victim’s
death- such that actions of accused are no longer seen as significant contributing cause of victim’s death.

 If jury was satisfied that the chain of causation was unbroken, or jury was not left with a reasonable doubt about it, jury
would then conclude that this element of the offence of manslaughter was made out.   If on the other hand jury decided that the
CPR efforts had severed the chain of causation linking accused to victim’s death, or were left with a reasonable doubt about it,
then the Crown would have failed to establish this essential element of the charge and would therefore be unable to convict
that accused of manslaughter. 

OMISSION- ACTUS REUS

R v Moore, [1979] 1 S.C.R. 195

Accused ran red light on bike. Police officer stopped him to ‘ticket’ him. Accused refused to give his name and address.
Charged with obstructing police officer.
FACTS
Trial court acquitted accused. Appeal court overturned the decision, stating that accused obstructed the police officer. Now
decision in SC.
ISSUE Is there a duty for a person to identify himself to police officer if statute or common law do not specify the same?

JUDGEMENT Majority decision upheld the Appeals court decision. Minority would have upheld trial court decision

Officer under duty to attempt to identify wrong-doer, accused’s failure to identify self constitutes offence of obstructing peace
NOTES
officer in execution of his/her duty, Code, s.129
From
• minority – no duty at common law to identify self to police, refusal to identify self not obstruction of police, absent
judgement
legal duty to answer

Page | 22
See Code provisions notes- 215(1)

R v Peterson, [2005] O.J. No. 4450 (Ont. C.A.), leave to appeal refused.

FACTS Adult son failed to look after his father. Liability under S 215 (2) of CC.

ISSUE Is an adult child under a legal duty to care for his elderly parent(s)?
NOTES [35]    Subsection 215(2) imposes liability on an objective basis.  The offence is made out by conduct showing a marked
From departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is
judgement objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the
health of the person under the charge of the other.  The personal characteristics of the accused, falling short of capacity to
appreciate the risk, are not a relevant consideration. The use of the word “duty” is indicative of a societal minimum that has
been established and is aimed at establishing a uniform minimum level of care.

[40] First, the relationship of the parties to each other is among the factors to consider in determining whether a person is in
the charge of another.  The dependency of the parent under a disability on an independent adult child is justified by their
relationship to one another in which an element of trust will usually be present. 
The mere breach of a federal or provincial statute, which imposes a duty on a child to support a parent, does not constitute a
crime.  It is nevertheless proper for the trier of fact to consider legislation governing the accused in order to determine
whether the accused’s actions or inactions show a “marked departure” from the conduct expected.

[41] Second, the word “charge” is not unknown to the criminal law in other contexts involving adults.  One speaks of a person
who is fixed with responsibility of supervision as one who is in ‘charge’”. 

[42] Used in these contexts the word “charge” connotes, among other things, the duty or responsibility of taking care of a
person or thing. 

[43] In assessing whether one person is in the charge of another, the relative positions of the parties and their ability to
understand and appreciate their circumstances is a factor to consider.  A parent who is not in full possession of his or her
faculties may not appreciate that he or she cannot provide himself or herself with the necessaries of life and may not have the
capacity to understand that he or she is in an unsafe or unhealthy environment that is likely to cause permanent injury.   Just as
some contributory negligence by the victim is not a defence to a charge of criminal negligence, the inability of the victim to
appreciate his or her need for necessaries and the victim’s unwillingness to cooperate is not a defence for an accused charged

Page | 23
 with failure to provide necessaries.  If the parent is otherwise in the child’s charge and the child cannot care for the parent due
to the parent’s refusal to accept care, the child is obliged to seek the help of a community agency. 

[44]  A further consideration in determining whether a person is in the charge of another is whether one person has explicitly
assumed responsibility for the other, for example, by obtaining a power of attorney for personal care or by publicly
acknowledging to others in the community by words or conduct an assumption of responsibility.

R v Browne (1997), 166 C.C.C. (3d) 183 (Ont. C.A.)

Accused charged with criminal negligence causing death where partner swallows drugs to avoid detection, dies before he can
FACTS
get her to hospital.
ISSUE Was accused under a legal duty to care for victim?

JUDGEMENT No legal duty on accused to care for victim

PRINCIPLE Where there is no legal duty under the law, there is no obligation.
There existed no undertaking under S 217 of CC and hence there was no legal duty to care for the victim.
The trial judge found that the relationship between Dexter Browne and Audrey Greiner as partners in drug dealing gave rise to
an implicit undertaking by Browne that he would take Audrey Greiner to the hospital whenever she swallowed cocaine. The
fundamental error made by the trial judge was in reversing the analytical steps under s. 217 by starting her analysis with
NOTES whether a duty of care existed, finding that it did, and then basing her finding of an undertaking on the existence of a legal duty.
From The inquiry should have begun with whether there was an undertaking. Only if there was an undertaking in the nature of a
judgement binding commitment could a legal duty have arisen under s. 217, regardless of the nature of the relationship between the
appellant and Audrey Greiner.
There being no undertaking within the meaning of s. 217 of the Criminal Code, there can be no finding of a legal duty. There
being no duty, there can be no breach contrary to s. 219 of the Code.

SUBJECTIVE MENS REA

Page | 24
INTENTION, ULTERIOR MENS REA

R. v. Vandergraff, [1994] M. J. No. 503 (Man. C.A.)

Intention necessary to prove criminal act that accused is charged with (eg assault)

Accused was at a hockey game. He got frustrated with results of the game and threw a jar of peanut butter at field. It hit the
FACTS victim and accused was charged with assault. Trial court found him guilty of assault, stating intention was not necessary. Case
in Manitoba Court of appeal.
ISSUE Whether intention is required to prove accused committed the criminal act that he is accused of.

Assault provisions requires intention under CC. Without proof of intention to apply force to victim, criminal act of assault (with
JUDGEMENT
a weapon) cannot be established.

NOTES
Crown could have brought a charge of criminal negligence causing bodily harm and accused could have been convicted of that.
From
But the charge here was specifically for assault and the required mens rea of intention was not present in this case.
judgement

R. v. Murray, [2000] O.J. No. 2182 (Ont. S.C.J)

Lawyer representing rapist/killer client (Scarborough rape case) retained client’s tapes without disclosing to crown or police
for 17 months. His intention was to cross examine client’s co accused spouse, to incriminate her (she had entered into an
FACTS
arrangement with crown to be set free by testifying that she was abused into participating in sexual acts with victims- tapes
proved she was a willing participant and her testimony was completely false).
ISSUE Whether intention was necessary to prove mens rea for attempt to obstruct justice by concealment of videotapes.

JUDGEMENT Accused acquitted.

The statutory provision of ‘attempt to obstruct justice’ clearly states that the accused must ‘willfully intend’ to obstruct justice.
NOTES
Accused’s testimony stating that he only retained tapes with the intention of using them for cross examining the co accused (ie.
From
No intention to obstruct justice or retain tapes permanently) raised reasonable doubt regarding his intention to obstruct
judgement
justice.

READ THE FACT SCENARIO, READ THE STATUTE. IF FACT SCENARIIO STATES THERE WAS NO INTENTION AND STATUTE
Tips
SPECIFIES THAT THERE SHOULD BE SPECIFIC INTENTION TO COMMIT THE OFFENCE, THEN USE ONE OF THE CASES.

Page | 25
 R v J.S.R., 2008 O.N.C.A. 544
There is intention to kill someone, but not the person who is killed

FACTS Accused was involved in a street gun fight with another person. While gun shots being exchanged, bystander caught in mid and
killed by other person’s gun. Accused charged under Culpable homicide-murder, S 229 (c) – intention to cause death to
someone and causing death to another by accident.
If accused did not intend to cause death of victim, is he still liable for causing accidental death while attempting to cause death
ISSUE
to another?

JUDGEMENT Accused guilty under S 229 (c ) of CC

Under S 229 (c), accused would be guilty of murder if trier of fact established 5 elements:
(i) The object was unlawful (eg. Gun fight in a crowded place);
NOTES (ii) Doing anything (eg. Carrying a loaded gun, holding gun with finger on trigger);
From (iii) That accused knew was likely to cause death of a human being (eg. Intending to kill the other shooter);
judgement (iv) Caused the death of someone else (eg. The victim)
(v) Whether or not the weapon was accidently discharged
There is liability for unintentional death (accidental or not) to someone while intending to cause death to someone else.

R. v Roks, 2011 ONCA 526

Subjective foresight of likelihood of death is required to establish murder conviction, not objective foresight of what a reasonable person would
have done.
Accused owned a business. He and others formed a plan to empty the building and set it on fire on Christmas (fewer people on
FACTS streets so no harm to anyone) and collect insurance money. Accused did not know how fire will be set and was not involved in
setting the fire. One person died when setting fire. One of the charges on accused was murder under S 229 (c) of CC.
Whether subjective foresight of intention of accused or objective foresight of what a reasonable person would do, is necessary
ISSUE
for S 229 (c).

JUDGEMENT Not guilty of murder under S 229 (c) but of manslaughter.

NOTES [judgement paras 124-149]
From The knowledge of consequences or likelihood of consequence (death) of dangerous act (arson) refers to actual subjective
judgement knowledge of the accused, not objective knowledge of what a reasonable person would have done. Here the accused did not
know ‘how’ the arson would be committed and was not involved in the act.
Where crown proves that the accused did and act (or series of acts), the natural and probable cause of which would be a
particular result (death), it refers only theto the ‘natural’ and ‘probable’ consequences of the conduct-not to every possible,

Page | 26
 conceivable and remote consequence.
3 elements to prove guilt:
(i) Action was taken for unlawful object
(ii) There was ‘subjective foresight’ of death
(iii) Death was thereby caused
What is important is the ‘subjective foresight’ of ‘likelihood’ of death. [para 263]
The common sense proposition that harm or death is natural and even likely is not subjective but objective foresight.

SUBJECTIVE MENS REA WITH OBJECTIVE FEATURES

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

Sexual assault case involving subjective mens rea (what accused intended) and objective features (what a reasonable person would do)
Also definition of sexual assault
Accused lived next to the 15 year old victim. He entered the house uninvited and grabbed the complainant by the breast and
FACTS made lewd comments. There was no touching of private parts as the complainant successfully defended herself. Trial court
stated that there had to be some touching of private parts to be sexual assault and changed the sentence to assault.
ISSUE What is the definition of sexual assault?

JUDGEMENT The act constituted as sexual assault

[Para 9] The test for defining sexual assault depends on many factors (not just whether there was a specific contact). Sexual
assault can also be between people of same sex.
NOTES
From
[Para 11] Sexual assault is assault in circumstances of a sexual nature, where the victim’s sexual integrity is violated. The test is
judgement
objective- Viewed in circumstances, whether a reasonable observer would view the assault as sexual or carnal in nature.

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

Subjective mens rea with objective features for fraud
The accused owned Construction Company and took money from depositors by claiming that the money was insured by
FACTS Federation of construction in Qubec. There was no insurance as the accused did not pay any premium. The accused honestly
believed that the construction would be completed. The company went bankrupt and many investors lost their investment.
ISSUE Whether intention to defraud the public is required to establish mens rea for fraud.

Page | 27
 JUDGEMENT Accused guilty of fraud
[Para 27]: Actus reus of fraud can be established by proof of:
(i) The prohibited act, whether it is an act of deceit, falsehood or some other fraudulent means; and
(ii) Deprivation caused by the prohibited act, that may consist of actual loss or placing of victim’s pecuniary interest at
risk
Mens rea of fraud is established by proof of:
(i) Subjective knowledge of prohibited act; and
NOTES
(ii) Subjective knowledge that the prohibited act could, as a consequence, deprive another (which deprivation may
From
consist in knowledge that the victim’s pecuniary interest are put at risk)
judgement
The question is whether the accused subjectively appreciated that certain consequences will follow from his/her acts, not
whether accused believed his/her acts to be moral. The personal feelings of accused about morality or dishonestly about the
act are not relevant.
What reasonable people could consider dishonest helps to determine whether the actus reus of the offence can be established
by particular facts.

KNOWLEDGE

See:
S 265(4) CC: Accused’s belief as to consent
S 273.2 CC: Where belief in consent not a defence

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

Accused offered job to complainant and conducted interview in the trailer where he made physical advances. Complainant was
fearful for her life and did not resist everytime but clearly said ‘no’ time and again. Trial court acquitted accused under implied
FACTS
consent defence stating that complainant’s actions implied that she consented. Appeals court overturned verdict. Now matter
in SC.
ISSUE Meaning of consent for sexual assault.

JUDGEMENT Appeals court verdict upheld. Accused held guilty.

Page | 28
 PRINCIPLE There is no defense of implied consent to sexual assault
There is no defense of implied consent to sexual assault
[Para 42] mens rea of sexual assault contains two elements: (1) intention to touch; and (2) knowing of, or being reckless or
NOTES wilfully blind to, lack of consent by person touched.
From Libeman J comments: accused may challenge crown’s evidence of mens rea by asserting honest but mistaken belief in consent –
judgement defence of mistake is simply denial of mens rea, no burden of proof imposed on accused; if accused’s belief found to be
mistaken, then honesty of belief must be considered – to be honest, belief cannot be reckless, wilfully blind or tainted by
awareness of s.273.1 factors, eg., person incapable of consenting.

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

Knowledge Mens Rea- Reasonable steps

Accused luring an underage 13 yr old child on internet. Was in fact undercover police officer. Accused was told that child was
FACTS 13 yrs old, even though the profile showed him as 18. Accused set up meeting to meet the child and was arrested. Trial court
acquitted him, appeal court found him guilty.
ISSUE Is the accused required to take reasonable steps to determine age of child.

JUDGEMENT Guilty
[para 31] under S 172.1(4) of CC, it is not a defence that accused believed the person he/she was communicating with was not
underage, unless accused took reasonable steps to ascertain the age of that person.
[Para 32]
(i) Where represented to accused that person is underage, accused presumed to believe that person in fact underage.
(ii) Presumption rebuttable – displaced by evidence to contrary which must include evidence that accused took steps
to ascertain real age of party.
(iii) Objectively considered, steps taken must be reasonable in circumstances.
NOTES (iv) Prosecution fails where accused takes reasonable steps to ascertain age of other and believed he/she not
From underage
judgement (v) Evidential burden on accused, persuasive burden on crown; where evidential burden of accused discharged,
he/she must be acquitted if trier of fact left in reasonable doubt whether accused in fact believed party not
underage
172.1(4) It is not a defence to a charge under paragraph (1) (a), (b) or (c) [telecommunication with underage children] that the
accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen
years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
Comments: Merely asserting that accused did not have knowledge of the real situation is not sufficient. For defence must be able to
prove that accused took reasonable steps to determine the age etc.

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 R. v ADH, 2013 SCC 28
Accused did not know she was pregnant and delivered the baby in Walmart washroom. Since the baby was blue, she assumed it
FACTS was dead and left him in the toilet. Charged with abandoning a child and endangering life under S. 218 of CC. Trial court
acquitted her.
is it subjective (knowledge of accused that her conduct will endanger the child’s life) or objective knowledge (marked
ISSUE
departure from what a reasonable person would have done in similar situation) important in this case?

JUDGEMENT Acquittal upheld

Reasons for Under S.218 child abandonment offence, no express fault requirement. Subjective fault restricts broad ambit of the offence
Judgement having regard to text, scheme and purpose of provision.

Comments: Important part from case for subjective v objective mens rea
[para 3] In general terms, when fault element is assessed subjectively, focus is on what the accused actually knew, did she
know that abandoning the child would put child’s health or life at risk?
Comments
Objectively, focus is not on what accused actually knew, but whether a reasonable person in similar circumstances would have
seen the risk and whether accused’s conduct is marked department from what reasonable person would do.

WILLFUL BLINDNESS

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

Currie charged with unlawfully and knowingly uttering a forged document (trying to cash a stolen cheque at a CIBC
branch). He claims he didn’t know it was a stolen cheque with a forged signature on the back and was only trying to help
FACTS
out the guy who gave it to him to cash, who seemed like an honest guy. The trial judge convicted on the ground that
Currie was wilfully blind.
ISSUE Should the doctrine of wilful blindness apply here?

HELD No. Appeal allowed; Currie acquitted.

RATIO The doctrine of constructive knowledge has no application in criminal law.

NOTES Wilful blindness is only applicable when a suspicion arises and a person omits to make further inquiries. That is not the

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 case here. Currie was never suspicious. Perhaps Currie “ought to have known” but this does not constitute knowledge for
the purpose of criminal liability.

R. v. Vinokurov, 2001 ABCA 113 (Alta C.A.)

Accused managed a pawn shop and received stolen property from a customer. Accused denied knowing that the property was
FACTS stolen. Crown made a case of willful blindness but trial court rejected the argument stating that crown did not establish that
accused had knowledge of property being stolen. Trial court instead, charged the accused with recklessness.
ISSUE Clarification on doctrine of recklessness and wilful blindness

HELD Conviction set aside. New trial ordered.

Recklessness presupposes knowledge of likelihood of prohibited consequence, accused must see risk and take the chance –
REASON finding that wilful blindness not established precludes knowledge requirement (paras 14-15)

NOTES

R. v. Briscoe, 2010 SCC 13

Accused charged for role in kidnapping offences, rape and murder of young girl, acquitted on basis mens rea as party to
FACTS offences not proven because he did not have requisite knowledge of co-accused’s intention to commit each crime; Court
of Appeal orders new trial on basis that trial judge failed to consider wilful blindness
ISSUE Whether accused was involved with the crime based on willful blindness.

HELD Supreme Court agrees trial judge erred

REASON Briscoe argued that willful blindness is a heightened form of recklessness, which is inconsistent with high mens rea
standard for murder.
Court clarified [para 21] willful blindness can substitute for actual knowledge, whenever knowledge is a component of
mens rea
S 229(a) CC: Causing death, while meaning to cause death (knowledge and intention).
Willful blindness is equivalent to knowledge. Willful blindness is distinct from recklessness. Willful blindness can only be
raised when it can almost be said that the defendant actually knew. willful blindness imputes (assigns) knowledge to
accused whose suspicion is aroused to point where he/she sees need for further inquiries but deliberately chooses not to
make those inquiries

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 Keep in mind, willful blindness is established only where accused can be proved to have the knowledge that a criminal act
is being done or is proposed but does not ask about it just to not be convicted.
NOTES In this case, Briscoe said, “whatever you guys wanna do, just do it. Don’t do it around me. I don’t want to see nothing I
don’t know what the f+*# you’re gonna do” Briscoe knew his friend wanted to do something illegal with a girl and
generally ‘approved’ of the plan.

RECKLESSNESS

R. Theroux, [1979] 2 S.C.R. 5

Théroux was the directing mind of a residential construction company that took deposits from co-contractors on the basis
FACTS that the deposits were insured. They weren’t. The company went bankrupt and the deposit money was lost. Théroux was
charged with fraud.
What constitutes the mens rea for the offence of fraud? Did Théroux’s belief that the houses would be built negate the mens
ISSUE
rea for fraud?

HELD No. Appeal dismissed.

RATIO Théroux had subjective knowledge that others would act on his lie and he thereby put their property at risk.
The mens rea of fraud is established by proof of:
1. Subjective knowledge of the prohibited act (deceit, falsehood); and
2. Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which
deprivation may consist in knowledge that the victim’s pecuniary interests are put at risk).
NOTES
The question is whether the accused subjectively appreciated that certain consequences will follow from his/her acts, not
whether accused believed his/her acts to be moral. The personal feelings of accused about morality or dishonestly about the
act are not relevant.

R. v. Buzzanga and Durocher [1979] 49 C.C.C. (2d) 369 (Ont. C.A.)

The defendants put out a satirical document that appeared to be promoting hatred of French Canadians. They actually
intended the document to sway public opinion in favour of building a French-language high school in the area. They were
FACTS
charged and convicted with wilfully promoting hatred. The trial judge treated the defendants’ testimony that they wished to
create a “controversy, furor, and uproar” as a virtual admission that they had the state of mind requisite for guilt.

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 ISSUE Did the trial judge err?

HELD Yes. Appeal allowed; new trial ordered.

An intention to create “controversy, furor and uproar” is not the same thing as an intention to promote hatred and it
RATIO
was an error to equate them.
willfully promoting hatred offence, Code s.319(2), does not include recklessness but requires intention of promoting hatred –
NOTES FROM
general mens rea required where no mental element mentioned in definition of crime is either intentional or reckless
JUDGEMENT
bringing about result which law seeks to prevent

OBJECTIVE MENS REA AND TRUE CRIMES

R. v. Martineau [1990] 2 S.C.R. 633

The accused and a companion robbed a trailer. After the robbery, the companion killed the occupants of the trailer contrary
FACTS
to what the accused had intended.
ISSUE Do felony murder and the objective foresight standard violate the Charter?

HELD Yes. Crown’s appeal dismissed; new trial ordered.

Lamer C.J.C. – Subjective foresight of death must be proven beyond a reasonable doubt before a conviction for
TEST
murder can be sustained.
[Para 12] Principles of fundamental justice under Charter s.7 require conviction for murder to be based on proof
beyond reasonable doubt of subjective foresight of death.

NOTES special mental element for death necessary before culpable homicide can be treated as murder, give rise to moral
blameworthiness justifying stigma and punishment for murder – phrase “ought to know is likely to cause death” in Code
s.229(c) likely violates ss.7, 11(d) Charter and not saved by s.1, since subjective foresight of death required

Marked departure test

R. v. Creighton [1993] 3 S.C.R. 3
FACTS The accused injected cocaine into the body of the deceased. The Crown argued that the accused was guilty of manslaughter
as the death was the direct result of that unlawful act. The accused was convicted at trial and the C.A. upheld this. The

Page | 33
 common law’s definition of unlawful act manslaughter required the objective foreseeability of the risk of bodily harm which
is neither trivial nor transitory. The foreseeability of death is not required. The S.C.C. confirmed that the common-law rule
does not violate s. 7 of the Charter.
ISSUE What is the meaning of negligence in the criminal law?
• Test for mens rea of unlawful act manslaughter is objective foreseeability of risk of bodily harm which is neither
trivial, transitory (temporary) in context of dangerous act – foreseeability of risk of death not required, this test does
not violate principles of fundamental justice under s.7 Charter
• Mens rea requirement of foreseeability of harm entirely appropriate to stigma associated with manslaughter offence
– by very act of calling killing manslaughter, law indicates that killing less blameworthy than murder; sentence
attached to manslaughter does not require elevation of degree of mens rea for offence
• Standard of mens rea required for manslaughter appropriately tailored to seriousness of offence, accused properly
convicted of manslaughter

[Para 38] Objective test: Where the accused is charged with the offence of unlawful act manslaughter, the trier of fact must
NOTES ask:
From (1) Would a reasonable person in the same circumstances be aware that the likely consequences of his or her unlawful
judgement conduct would create the risk of death? If answer is no, then acquittal. If yes,
(2) Was the accused unaware
(a) because he or she did not turn his or her mind to the consequences of the conduct and thus to the risk of
death likely to result; or

(b) because he or she lacked the capacity to turn his or her mind to the consequences of the conduct and
thus to the risk of death likely to result, due to human frailties?

Note, frailties relate to things that are beyond the control of the accused (like illiteracy, preventing accused
from reading danger warnings)

Personal
Unlike murder, foreseeability of death not required for unlawful act manslaughter. Objective foreseeability is enough.
notes

R. v. Beatty, 2008 SCC 5

FACTS Accused charged with dangerous driving causing death, truck suddenly crosses center line into path of oncoming car, killing
occupants. Witnesses testified that vehicle driven properly before accident. Accused stated he must have become

Page | 34
 unconscious or fallen asleep for a few minutes. Trial judge found him not guilty, appeal court reversed acquittal.
ISSUE Does the accused’s negligent driving also attracts criminal liability under criminal negligence causing death?

DECISION Acquittals upheld on appeal

There is a difference between civil and penal negligence. Negligent driving does not necessarily constitute dangerous
driving.

[Para 43] Actus reus of dangerous driving:

Viewed objectively, accused was driving in a manner that was dangerous to the public, having regard to all
NOTES
circumstances eg nature, condition & use of place where motor vehicle is operated, amount of traffic that may
From
reasonably be expected at that place
judgement
Mens rea of dangerous driving:
Mens rea for penal negligence can be established only when there is ‘marked departure from standard of care
expected from reasonable person”.

Personal Momentary act of negligence insufficient to support finding of marked departure from standard of care of reasonably prudent
notes driver

REGULATORY OFFENCES

R. v Sault Ste. Marie, [1978] 2 S.C.R. 1299

Water pollution case. City of Sault ste marie hired a company for waste disposal. The waste disposed polluted Ontario waters
FACTS
and City was sued under Ontario regulatory act.
ISSUE Definition of regulatory offences

PRINCIPLE Regulatory offences can be classified into three categories

NOTES 1. Mens Rea: Offences which consist of some positive state of mind such as intent, knowledge, or recklessness, must be
From proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
judgement Prima facie, public welfare offences are categorised as Strict Liability. They are not subject to presumption of full

Page | 35
 mens rea. Offence would fall under mens rea only if words such as ‘willfully’, ‘with intent’, ‘knowingly’, or
‘intentionally’ are used in statute.
Self notes: (eg., Ontario Business Practices Act offence of knowingly engaging in unfair business practice.)
2. Strict Liability: Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the
doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving
that he took all reasonable care. This involves consideration of what a reasonable man would have done in the
circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if
true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These
offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.
(eg., Highway Traffic Offence (Ont.) of careless driving)
3. Absolute Liability: Where it is not open to the accused to exculpate (exonerate) himself by showing that he was free
of fault.
(eg., Highway Traffic Act (Ont.) offence of speeding – mistaken belief that not speeding no defence, but accused can challenge
proof of actus reus, - radar not working properly, wrong car)

Reference Re B.C. Motor Vehicle Act, [1985] 2 SCR 486

BC motor vehicle act stipulated that anyone driving without drivers license or under suspended licence would be imprisoned.
FACTS It also mentioned that the liability was one of absolute liability. (note, absolute lia means that the crown only needs to prove
that accused committed actus reus- and accused does not have any defence of mistaken belief).
Whether imprisonment under absolute liability offences contradict S 7 of the Charter. (note, absolute liability means accused
ISSUE
cannot get fair hearing)

PRINCIPLE Imprisonment for Absolute liability offences is against S 7 of Charter rights

Absolute liability does not violate principles of fundamental justice under s,7 of Charter; however absolute liability offence
NOTES combined with imprisonment does violate s.7, irrespective of nature of offence; provision in Act for driving motor vehicle
From while prohibited with mandatory 7 days minimum sentence unconstitutional (paras 72-75, presumption against absolute
judgement liability)

R v Raham, 2010 ONCA 206

FACTS New highway act created offence of stunt driving, punishable by fine, imprisonment or both. Stunt was defined as driving
over a specific speed limit. Defendant argued that speeding is absolute liability, imprisonment is against S 7 of Charter. Court
of Appeal holds stunt driving by speeding is strict liability offence – would violate s.7 Charter if absolute liability as jail

Page | 36
 mandatory

ISSUE Whether characterization of speed offence as strict liability is unconstitutional.

JUDGEMENT Stunt driving can be characterized as Strict Liability offences

• Issue of statutory interpretation first considered by Court, reference made to french version (para. 24); three ways in
which offence may be committed, one of which is stunt driving: driving in race or contest, driving while performing
stunt, driving on bet or wager

• Constitutionality of s.172 – nothing inherent in act of speeding that dictates all speed based offences must be
characterized as absolute liability offences, [para. 31];
• proper characterization of speed based offences as absolute, strict or full mens rea offences depends on Sault Ste.
NOTES Marie analysis – availability of jail suggests strict liability
From
judgement • Due diligence defence to strict liability charge amounts to claim defendant took all reasonable care to avoid
committing offence with which charged; where accused contends he/she operated under reasonable
misapprehension of relevant facts, due diligence takes form of reasonable mistake of fact claim

• Stunt driving offence by speeding is strict liability – while prohibited conduct same as conduct prohibited by
speeding under s.128 of Highway Traffic Act, nothing illogical in treating stunt driving as strict liability, speeding as
absolute liability, para. 51

Levis (City) v. Tetreault, 2006 SCC 12

Company accused of operating vehicle without renewing its registration. Driver charged with driving on expired permit.
FACTS
Officially induced error argued. City sent renewal notice without complete address, which was returned to city.
ISSUE Whether officially induced error of law is recognised defence under Strict liability

Officially induced error is recognized as a defence for strict liability offences.

JUDGEMENT
The company did not prove that there was officially induced error, hence company and driver fined.

PRINCIPLE Officially induced error of law is a recognised defence for strict liability
NOTES • Defence of officially induced error of law recognized by Supreme Court for strict liability offences under Quebec

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 Highway Safety Code, (although not made out successfully by the company)
• Concept of diligence based on acceptance of citizen’s civic duty to take action to find out what his/her obligations are
– passive ignorance not valid defence
• Company failed to establish conditions for officially induced error of law defence:
(1) error of law/mixed law made;
From
(2) person who committed act considered legal consequences of his/her actions;
judgement
(3) advice obtained came from appropriate official;
(4) advice reasonable;
(5) advice erroneous; and
(6) person relied on advice in committing act (para. 26)

R v Wholesale Travel Inc. [1991] 3 S.C.R. 154

The company was charged with false mislead advertising. There were also lengthy statutory defences defined, which
FACTS included the defence of due diligence. But s.37.3(a) (b) stated that you cannot use the defence of due diligence if you become
aware of false advertising and failed to make the timely prompt correction or retraction.
Whether absolute liability offence of timely retraction offends principles of fundamental justice and violates S 7 of Charter?
ISSUE
Whether reversal of burden of proof violate S 11 (d) presumption of innocence under the Charter?

JUDGEMENT Paragraphs (a) and (b) do not violate the Charter

(i) Where imprisonment is coupled with due diligence defence, it is strict liability and does not breach the
PRINCIPLE Charter
(ii) Reversal of burden of proof is not unconstitutional
Proof of negligence or allowing a due diligence defence is sufficient to comply with s.7.
Strict liability that has the possibility of imprisonment does not violate the Charter if a due diligence defence is provided to
NOTES
the accused.
From
judgement
Reversal of burden of proof justified by difficulties of proving negligence by crown, accused knows reasons for his/her
conduct

EXTENSIONS OF CRIMINAL LIABILITY

Page | 38
AIDING AND ABETTING

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

Gang rape case. D and S part of motorcycle club. They were present at a club gathering where they were introduced as
prospective members. Later they delivered beer to a dump site where the club members were present. They saw one club
member having sex with a girl and they left.
FACTS The girl was the victim who claimed to be raped by 18 club members, where 2 people held her and one person put a knife at
her. She identified D and S as two offenders but stated they neither held her nor put a knife to her throat. No evidence that
they were present during rape.
D and S convicted at Trial and Appeal. Now they appeal to SC.
ISSUE Can someone who is present but not participating during a crime, be charged with aiding and abetting that crime?

JUDGEMENT Appeal allowed.

A mere bystander cannot be charged with aiding and abetting, lacking evidence of intention or knowledge of the
PRINCIPLE
crime.
Presence at a crime can be evidence of aiding and abetting when accompanied by other factors like prior knowledge of
principal offender’s intention to commit offence or encouraging the principal offender during such presence.
NOTES A person is not guilty merely because he is present at the scene of crime and does nothing to prevent it. An example of this is
From the typical case of an urbanite who stands around at a subway station while someone is being murdered.
judgement Mere presence without anything more not enough; person cannot properly be convicted of aiding and abetting in commission
of acts which he does not know may be or are intended

R v Logan, S.C.C. (1990)

Accused convicted of attempted murder, during robbery. One group member shot and severely injured cashier. Accused
admits being one of robbers but states he had no intention to shoot, no discussion concerning use of guns. The trial judge said
FACTS the jury could convict if the Crown proved beyond a reasonable doubt that the accused knew or ought to have known that
someone would should with the intention of killing. They were convicted of attempted murder. The C.A. overturned this.
The Crown appealed.
Is it a principle of fundamental justice that a party to any offence cannot be found guilty of the offence based on a lower
ISSUE standard of requisite mens rea than that required for convicting the principal? (In short, is "ought to have known" in s. 21(2)
too low a standard of mens rea?)?

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JUDGEMENT Yes. Crown's appeal dismissed.
Section 21(2) doesn't violate the Charter for most offences. However, attempted murder is one of the few offences
PRINCIPLE for which the Constitution requires subjective intent and therefore the objective component "ought to have known"
contravenes ss. 7 and 11(d) of the Charter without being saved by s. 1.
• Requisite mens rea for murder conviction logically must be same for conviction of attempted murder (subjective
foresight)

• When principles of fundamental justice require subjective foresight in order to convict principal of attempted
murder, same minimum degree of mens rea constitutionally required to convict party to offence of attempted
murder.
NOTES • Where S.21(2) allows for conviction of party to offence (aider/abettor) of attempted murder on basis of objective
From foreseeability [Phrase “ought to have known” in S. 21(2)], its operation restricts s.7 of Charter
judgement • Words “or ought to have known” inoperative when considering under s.21(2) whether person party to offence,
where constitutional requirement for conviction that foresight of consequences be subjective, which is case for
attempted murder
• Once words (ought to have known) deleted, remaining section requires, for attempted murder, that party to common
venture know it is probable that accomplice would do something with intent to kill in carrying out common
purpose.

R. v. Briscoe, 2010 SCC 13

Aiding-Abetting/Willful Blindness
Accused charged for role in kidnapping offences, rape and murder of young girl, acquitted on basis mens rea as party to
FACTS offences not proven because he did not have requisite knowledge of co-accused’s intention to commit each crime; Court
of Appeal orders new trial on basis that trial judge failed to consider willful blindness.
Whether accused had mens rea/actus reus for Aiding Abetting.
ISSUE
Whether accused was involved with the crime based on willful blindness.

HELD Supreme Court agrees trial judge erred

REASON • Supreme Court upholds order for new trial – mens rea requirement reflected in word “purpose” under s.21(1)(b) has
two components: intent and knowledge
• Intent component –crown must prove accused intended to assist principal in commission of offence, not required
that accused desired offence be successfully committed
• Knowledge component – in order to have intention to assist in commission of offence, aider must know principal

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 intends to commit the crime, although not precisely how it will be committed
• Even in case of murder, principal’s intention to commit crime must be known to aider or abettor, but need not be
shared – it is sufficient he/she, armed with knowledge of principal’s intention to commit the crime, acts with
intention of assisting principal in its commission

The accused had knowledge that his friend was going to do something criminal, he was willfully blind, thus
aiding/abetting the crime.
NOTES In this case, Briscoe said, “whatever you guys wanna do, just do it. Don’t do it around me. I don’t want to see nothing I
don’t know what the f+*# you’re gonna do” Briscoe knew his friend wanted to do something illegal with a girl and
generally ‘approved’ of the plan.

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

Thatcher was charged with causing the death of his ex-wife following their separation and an increasingly bitter relationship.
The ex-wife was ferociously beaten and then shot to death.

At trial, the Crown led direct and circumstantial evidence to prove that T had personally murdered his ex -wife or,
alternatively, that he aided or abetted the killer. In his charge, the trial judge instructed the jurors that T could be found
guilty of murder if they were satisfied beyond a reasonable doubt that he was the principal offender or a party to the offence
FACTS under s. 21 of the Code

The jury returned a verdict of guilty of first degree murder contrary to s. 218 of the Code. Appeal court dismissed appeal from
T.

Should jury be unanimous as to particular nature of participation in offence- whether accused personally committed the act
ISSUE or aided/abetted commission of offence?
Or simply put, is there a distinction between principal accused and aider/abettor?
JUDGEMENT Appeal dismissed. Conviction charges upheld.

PRINCIPLE In criminal law, with regards to liability, there is no difference between principal accused and aider/abettor.
NOTES Provision of S. 21 (1) has been designed to make the difference between principal offender and aider/abettor, irrelevant.
From Either mode of committing the offence is equally culpable.
judgement
In any case where there is doubt whether the person committed the offence personally or aided/abetted the commission of

Page | 41
 offence, it may be advisable to prefer indictment against him as a principal. Such indictment is sufficient even if subsequent
evidence points out that the person was accessory or principal before the fact.

S. 21 has been designed to relieve the necessity of crown from choosing between two different forms of participation in
criminal offence- principal or aider/abettor. Crown is under no legal duty to separate different forms of participation in
criminal offence, into two different counts.

R v JF, 2013 SCC 12

Aiding and abetting of conspiracy
JF knew one girl who intended, along with her sister, to kill their mother. He made several suggestions to the girls on how to
FACTS execute the murder and how to get away upon police questioning. He was convicted of conspiracy to murder, appeal
dismissed by appeal court.
ISSUE Can a person be held liable for party to offence of conspiracy?

JUDGEMENT Appeal dismissed. Conviction upheld.

Aiding and abetting of conspiracy is where accused aids or abets the actus reus of conspiracy, namely the act of
PRINCIPLE
agreeing.
A person can be found liable as party to conspiracy where he/she aids or abets or assists in initial formation of
NOTES
agreement that comprises essence of crime of conspiracy, or encourages or assists new members to join pre-existing
From
conspiracy, as opposed to aiding or abetting furtherance of unlawful object of conspiracy
judgement

R v Gauthier, 2013 SCC 32

Abandonment as defence for aiding and abetting
G made plans with her spouse for a murder suicide pact (kill children and die). At one point, she wrote the suicide letter
FACTS dictated by her spouse but then tore it up and told him she did not intend to go through with it. The spouse poisoned
everyone and only G survived. Trial court rejected her defence of abandonment. Appeal court dismissed appeal.
ISSUE
What are the conditions for abandonment defence in aiding and abetting?
For this exam

JUDGEMENT Appeal dismissed. Conviction upheld.

PRINCIPLE Four conditions must be met to qualify for defence of abandonment in aiding and abetting.

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 [Para 50] Conditions for defence of abandonment or withdrawal by party to offence to others:
(1) intention to abandon or withdraw from unlawful purpose;
NOTES
(2) timely communication to those who wish to continue offence; (3) communication serves unequivocal (clear)
From
notice to those who wish to continue offence;
judgement
(4) taking in manner proportional to his/her participation, reasonable steps to neutralize or cancel effects of
participation or prevent commission of offence

Page | 43
COUNSELLING

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

Accused sends “teaser” email on internet marketing sale of “top secret” files. He advertises that software would enable
purchaser to generate valid credit card numbers, instructions include how to make bombs, break into house. Accused
FACTS charged under s.464 with counseling indictable offences not committed, including fraud.
Accused testifies he had seen computer generated list of contents of files, but not read them or used credit card numbers;
trial judge finds accused did not have necessary mens rea to commit counseling fraud
ISSUE Are those who counsel others to commit criminal offences liable under Criminal Law?

JUDGEMENT Trial judge confused “motive” and “intent”, majority orders new trial

Subjective knowledge necessary for counselling offence not committed.

PRINCIPLE
Note: subjective knowledge that the information that use of false credit card is illegal is sufficient.
Actus reus for counseling: deliberate encouragement or active inducement of commission of criminal offence;
Mens rea consists of nothing less than accompanying intent or conscious disregard of substantial and unjustified risk
NOTES inherent in counseling –
From Must be shown accused either intended offence counseled be committed, or knowingly counseled commission of offence
judgement while aware of unjustified risk that offence counseled was in fact likely to be committed as result of accused’s conduct
(para. 29)

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ATTEMPTS

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

Mens rea for attempted murder (S 239 CC)
Ancio's wife had left him and was living with one Kurely. Ancio called his wife on false pretences wanting to meet with her
but she refused. Ancio then broke into a friend's house and stole three shotguns, sawing off the barrel of one, loading it, and
FACTS taking it along with some extra ammo to Kurely's apartment building. Ancio broke the glass of the front door to enter the
building. Kurely, upstairs, saw Ancio coming and threw a chair at him. The gun went off missing Kurely then they wrestled
around until the cops arrived.
ISSUE What is the mental element (mens rea) required for proof of the crime of attempted murder?

JUDGEMENT Crown's appeal dismissed; C.A.'s order for a new trial confirmed.

PRINCIPLE Mens rea for attempted murder cannot be anything less than the specific intent to kill.
Murder involves a killing. Therefore, intention to commit murder must include an intention to kill. Mens rea for an attempted
NOTES
murder cannot be less than the specific intent to kill.
From
A mental state falling short of that level may lead to conviction for other lesser and included offences, eg. Aggravated assaults,
judgement
but not to a conviction of attempted murder. (lesser and included crime)

Personal Section 24 defines an attempt as "having an intent to commit an offence." This is a general provision so we must "read in" the
Notes offence in question.

R v Deustch, [1986] 2 S.C.R. 2

Deutsch ran a company, and put an advertisement in the paper looking for "secretary-sales assistants to the sales executive".
When women came in to interview, he told them that they would have to have sexual intercourse with clients if it was
required to secure a contract. However, this could result in bonuses of up to $100,000 a year. An undercover police officer
FACTS
went in for an interview and had the same experience. No one was hired under the ad. Deutsch was charged with attempting
to procure females for illicit intercourse with other persons contrary to s.195(1)(a) of the Code (now s.212). He was
convicted at trial, but a new trial was ordered on appeal.
ISSUE What constitutes ‘mere preparation’? When does an attempt proceed far enough to constitute a crime?

Page | 45
JUDGEMENT Appeal dismissed.

 The actus reus for attempt must be some step towards the actual commission of the crime that goes beyond mere
acts of preparation.
PRINCIPLE  The distinction between preparation and attempt is qualitative and dependent on the relative proximity of the act (in
time, location and between the acts under the control of the accused remaining to be accomplished) to the nature of
the completed offence.
• Crown must prove mens rea – intent to commit offence in question, and actus reus – some step towards commission
of offence beyond mere acts of preparation
• The actus reus must be more than mere preparation to commit a crime. When preparation to commit a crime is fully
NOTES completed and ended, the next step towards committing a specific crime constitutes actus reus sufficient to establish
From a criminal attempt.
judgement • Distinction between preparation and attempt is a qualitative one, involves relationship between nature and quality
of act in question and nature of complete offence – consideration must be given to relative proximity of act to
completed offence in terms of time, location, acts under control of accused remaining to be accomplished

R v Dery, 2006 SCC 53

Liquor store had stored it’s excess liquor in a trailer during the holiday season. In an unrelated incident, the communication
between Dery and another person was intercepted and their plans to rob the trailer were overheard. No further action was
taken by Dery or his friend to commit the crime.
FACTS
Trial judge finds no agreement established between parties and finds them not guilty of conspiracy, however as actions more
than merely preparatory to conspiracy, conviction imposed for attempting to conspire

ISSUE Is attempt to conspire to commit a substantive offence (theft) an offence under Canadian law?

JUDGEMENT Appeal allowed, acquittals entered.

PRINCIPLE Attempt to conspire to commit substantive offence is not offence under Canadian law
NOTES • Attempt to conspire to commit substantive offence is not offence under Canadian law – criminal liability does not
From attach to “fruitless discussions” in contemplation of substantive crime that is never committed, nor even attempted
judgement by parties to discussion; criminal law does not punish “bad thoughts” that were abandoned before agreement
reached, or attempt made, to act upon them
• Acts that precede a conspiracy are not sufficiently proximate to substantive offence to warrant criminal sanction –

Page | 46
given that conspiracy is essentially crime of intention, it is difficult to reach further than law of conspiracy already
does – not goal of criminal law to catch all crime “in the egg”; conspiracies are criminalized when hatched, and only
hatched by agreement (para. 47)

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DEFENCES

MENTAL DISORDER

R v Cooper. [1980] 1 S.C.R. 1149

Cooper, was an outpatient at a psychiatric hospital. At a party organized for patients of the hospital he took a woman aside,
kissed her, and then strangled her to death because, as he later testified, he was afraid that she would tell on him. At trial the
defence of insanity (now mental disorder) was not raised (at the time Cooper would have been ordered into an institution for
life if this defence was accepted), but Cooper rather relied on the negation of mens rea in the offence. He also had expert
FACTS testimony from a forensic psychiatrist saying that he would not have been able to understand the consequences of his actions
or form the mens rea. Despite this, the trial judge charged the jury with s.16, although the charge was very poor. Cooper was
convicted at trial and his appeal was rejected by the Court of Appeal.
• although subsequently modified in R. v. Parks, S.C.C. (1992); significance of concept of “appreciates” also discussed in
case
What is the proper interpretation of S.16 of the Criminal Code?
– issue for jury was whether it could conclude, on balance of probabilities, that accused had disease of mind to extent it
ISSUE
rendered him incapable of appreciating nature and quality of act of which he was charged, or of knowing that it was wrong

JUDGEMENT Appeal allowed, new trial ordered

• “to know” the nature and quality of act may mean merely to be aware of the physical act; while “to appreciate” may
mean to estimate and understand the consequences of the act.
PRINCIPLE

• For defence of mental disorder, accused must be unable to ‘appreciate’ nature, quality and consequences of act.
NOTES • S. 16 of CC,
From • “Disease of mind” – to be given broad, liberal legal construction, embraces any illness, disorder or abnormal condition
judgement which impairs human mind and its functioning, eg., personality disorder; but excludes self-induced states caused by
alcohol or drugs, plus transitory mental states such as hysteria or concussion (p.8)

• “appreciating nature and quality of an act or omission” – word “appreciate” rather than “know” used to broaden legal,
medical considerations bearing on accused’s mental state, makes it clear cognition not sole criterion –

• “to know” the nature and quality of act may mean merely to be aware of the physical act; while “to appreciate” may
mean to estimate and understand the consequences of the act.

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 • Code requires level of understanding of act which is more than mere knowledge of act taking place – capacity to
apprehend nature of act and its consequences (p.9)

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

Accused used defence of insanity, while convicted of first degree murder at trial. Medical evidence revealed that he was a
psychopath and understood the physical nature and consequences of his act, though indifferent to such consequences.
FACTS The trial judge instructed the jury (1) that psychopathy could be a disease of the mind and (2) on the meaning of the word
“appreciate” in s. 16 of the Criminal Code. On appeal, the Court dismissed the appeal but substituted a verdict of second degree
murder because the trial judge failed to instruct the jury adequately on the difference between first and second degree murder.
What is the definition of the word ‘appreciate’?
ISSUE
Is the defense of mental disorder available for psychopath or sociopath offenders?

JUDGEMENT Appeal dismissed. Second degree murder conviction upheld.

Simply suffering from mental disorder not sufficient as defense under S. 16. Important that accused be unable to
‘appreciate’ nature and consequences of his actions.
PRINCIPLE
A psychopath understands physical nature and consequences of his act, but indifferent to such consequences.

• Person appreciates nature and quality of act within meaning of s.16 if he knows what he is doing and aware of physical
consequences which will result from his acts in case at bar, that knows he was hitting woman on head with rock, with
great force, and in addition capacity to estimate and understand physical consequences which would flow from his act
NOTES – that he was causing physical injury which could result in death.
From
judgement • [Referring to judgement in R v Simpson] S 16 exemption not available to someone who understands the nature,
character and consequences of the act, but has apathy towards the victim and no remorse or guilt. Even if such apathy
or lack of remorse is due to a disease of the mind.

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

FACTS The accused killed, without apparent motive, a friend who was sleeping in his apartment.   For a number of years the accused
had been suffering from psychosis of a paranoid delusional type and, believed that his friend was part of a local union that was
trying to kill him.
At his trial on a charge of second degree murder, the accused raised the defence of insanity.  Psychiatrists testified that the
accused possessed the general capacity to distinguish right from wrong and would know that to kill a person is wrong but had

Page | 49
 moments of psychosis losing momentary ability to reason. Trial judge rejected defense (since he could distinguish right from
wrong generally). Appeal court allowed appeal ordering new trial. Crown appealed.
JUDGEMENT Appeal should be dismissed
• meaning of “wrong” in Code s.16; “wrong” means morally wrong, not legally wrong: As confirmed in R. v. Chaulk, S.C.C.
NOTES (1990) – Oommen interprets phrase “knowing that act was wrong”
From • S.16(1) embraces not only intellectual ability to know right from wrong in abstract sense, but also ability to apply that
judgement knowledge in rational way to alleged criminal act – section focuses on particular capacity of accused to understand his
act was wrong at time of committing the act.

AUTOMATISM AND INVOLUNTARY ACTS

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

The police followed a car driven by the accused in which J was a passenger. The car stopped, J ran into a nearby backyard, and
the accused ran off. The police found a loaded, unregistered, restricted weapon in the backyard.
The accused testified that he had no knowledge of the gun, thought cops were chasing illegal drugs. He followed passenger's
instructions where to drive and stopped the vehicle at his request. Found abt gun later.
FACTS
The accused testified that he had no knowledge of the gun. After deliberating for several hours, the jury asked the trial judge
for an explanation of "the time frame of being aware of the weapon". The trial judge responded by reading the Code "shd be
aware of the existence of the weapon while both he and [J] were in that vehicle." The accused was convicted of the offence of
possession of gun, all other events he was acquitted. He appealed.
ISSUE (For our
What is definition of voluntariness to form ‘actus reus’?
purpose)

JUDGEMENT Appeal dismissed

PRINCIPLE Voluntary conduct is necessary element for criminal liability. act must be voluntary act of accused for actus reus to exist
(para. 18)
NOTES  voluntary conduct is necessary element for criminal liability;
From  requirement for voluntary conduct applies even if provision creating offence does not expressly require one
judgement  no general Code stipulation that guilty act must be voluntary
 act must be voluntary act of accused for actus reus to exist

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 R v Parks, [1992] 2 S.C.R. 871
Non-insane automatism case, accused drives in sleep 23 km, attacks in-laws. Immediately after the incident, the respondent
FACTS went to a nearby police station, again driving his own car, and told them what he had done. Jury acquits accused. Crown
appeals.
ISSUE
(for our Does sleepwalking constitute non-insane automatism or it is a "disease of the mind" under CC Section 16.
purpose)
JUDGEMENT Appeal dismissed.

 Non insane Automatism works as a defence and results in an absolute acquittal.

 Once the defendant raises automatism as a defence the burden is on the Crown to prove voluntariness, or alternatively
PRINCIPLE
to prove "insane" automatism which results in a non-criminal responsibility verdict but may result in an alternative
disposition under s.672.54.
• Automatism, though spoken of as defense, is conceptually sub-set of voluntariness requirement, belongs to actus
reus component of criminal liability
• involuntary act, including one committed in automatistic condition, entitles accused to unqualified acquittal, unless
automatistic conditions stems from disease of mind that renders accused insane, in which case verdict of insanity
results (para 41)
NOTES • When defense of non-insane automatism raised by accused, trial judge must determine whether defense should be left
From with trier of fact – two discrete tasks arise:
judgement • (1) determine first whether some evidence on record to support leaving defence with jury; evidential burden rests
with accused, mere assertion of defence will not suffice;
• (2) given proper foundation, trial judge must consider whether condition alleged by accused is in law non-insane
automatism – if judge satisfied some evidence pointing to condition that in law is non-insane automatism, defence can
be left with jury (para 42)

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 R v Stone, [1999] 2 S.C.R. 290
Stone stabbed his wife 47 times with a hunting knife kept in his car. He testified that he blacked out and felt a "woosh" go
through his body. He hid her body in his truck's tool chest, picked up a six pack, drove home, left a note for his daughter, and
took off to Mexico. After a few weeks in Mexico he decided to return to Canada and turn himself in.
FACTS In his defence, Stone pleaded insane automatism, non-insane automatism, lack of intent, and in the alternative, provocation.
The judge allowed for a defence of insane automatism which was presented to the jury. The jury convicted him of
manslaughter and sentenced him to seven years. The verdict was upheld by the Court of Appeal. Crown appealed.

ISSUE Can a conscious person be automatistic?

JUDGEMENT Appeal dismissed

A claim of the defence of automatism has two steps:
1. The accused must establish, on a balance of probabilities, that there is sufficient evidence (if believed) to make the
defence operate. In order to do this the accused must have expert evidence to go along with his or her testimony. If this
is not met, then the defence fails.
PRINCIPLE
2. The judge must decide if there is a disease of the mind. If there is, then a special verdict is entered and normal s.16
procedures are followed. If there is not, then the question must be left to the jury if the accused acted involuntarily. If
he did, then he is acquitted.

• Defence must establish proper foundation for automatism

• Burden only met where trial judge concludes evidence on which jury could find accused acted involuntarily on balance
of probabilities; in all cases this requires defence make assertion of involuntariness and call confirming psychiatric
evidence
• Other relevant factors for determining whether defence burden satisfied:
NOTES
(i) severity of triggering stimulus,
From
(ii) corroborating evidence of by-standers,
judgement
(iii) corroborating medical history of automatistic like dissociative states,
(iv) whether evidence of motive for crime,
(v) whether alleged trigger of automatism is also victim of automatistic violence
(para 192 paraphrased)

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 R v Fontaine, [2004] 1 S.C.R. 702
Fontaine worked "under the table" at a car garage. R, a former employee, called the store and said "we're coming to get you,
pigs". D, the eventual victim, came in to the store and told a co-worker that there was a hit out for Fontaine and himself. Having
been informed of this, when he left work, Fontaine purchased a firearm. That evening, Fontaine saw R outside his house.
During the night, Fontaine smoked marijuana and at some point in the night he freaked out and shot bullets through his
windows and doors, thinking that someone was breaking in to get him. The next day, D came into the garage to pay off a debt
and Fontaine, thinking he was the hitman, shot him seven times, killing him.
FACTS He turned himself into the police. He claimed that he was "frozen" at the time of the murder and only partially recollected it; he
said that his actions were not his own.
Several different doctors testified, and stated that it was possible that Fontaine suffered from paranoia that was triggered by
his habitual smoking of marijuana, making him delusional. The doctor for the defence found conclusively that Fontaine did
have a major psychological disorder and that he was unable to determine right from wrong.
The trial judge did not put mental-disorder automatism to the jury, who convicted him; the Court of Appeal overturned this
and issued a new trial, stating that the defence should be left to the jury.
ISSUE
(for our Standard of evidence for insane automatism
purpose)
JUDGEMENT Appeal dismissed
The evidentiary burden is discharged if the accused raises sufficient evidence that there is an "air of reality" that the defence
PRINCIPLE might succeed; the judge is not to consider the truth of the evidence when deciding if the accused has met the burden.

[Para 89-90]- paraphrased

NOTES For defence of mental disorder automatism, asserting involuntary action by accused and qualified expert testimony is sufficient
From to fulfil evidentiary burden. These two elements could lead to a properly instructed jury finding that the defence applies (the
judgement air of reality test). It is then up to the jury as finders of fact to determine if the evidence is true, and if the defence applies.

R v Luedecke, 2008 ONCA 716

Accused sexually assaulted victim in his sleep. At trial, sleep disorder specialist testified that accused was in a parasomniac
state at the time, acting without any volition, consciousness or capacity to control his behaviour. The accused had a family
history of parasomnia and had experienced parasomniac events in the past, including episodes of engaging in sexual
FACTS intercourse with girlfriends while asleep. Finally, the expert testified that, from a medical perspective, he did not regard
parasomnia as a mental disease or disorder.
Relying mainly on the uncontradicted evidence of the expert, the trial judge found that the accused's actions were involuntary
and that they were not the product of a mental disorder. He acquitted the accused. The Crown appealed.

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 ISSUE Whether the verdict of not guilty or not criminally responsible due to mental disorder applicable

JUDGEMENT Appeal should be allowed

Outright acquittal does not address danger caused by his condition

PRINCIPLE
Even though accused was not mentally ill, criminal law uses the concept of mental disorder very differently than medical
profession.
NOTES
Outright acquittal does not address danger caused by his condition. The prior episodes of accused’s prior episodes (with ex
From
girlfriends) demonstrate that this was not an isolated ‘one off’ episode. Accused could not differentiate between consenting and
judgement
non-consenting partner when in parasomnia state.
Trial judge had erred while following parks!

SIMPLE INTOXICATION

The Queen v. George [1960] S.C.R. 871

George tried to sell a fur to Mr. A but the man declined. Late the same night, when the defendant was very drunk, he came back
to the house and assaulted the man, stealing $22. He was charged with robbery under s.288 of the Criminal Code (now s.343).
FACTS
The accused stated that he was very drunk and did not remember much about the incident, but he did remember hitting
someone, and remembered the house being the same one that he had been in earlier that day.
ISSUE Does drunkenness negate mens rea?

JUDGEMENT Appeal allowed, charge of common assault found, sentenced to time served.

Intoxication often makes it impossible for a person to form the specific intention in specific intent crimes, however only
PRINCIPLE
intoxication to the point of insanity will negate mens rea altogether in cases involving only general intent.
NOTES Intoxication prevented the defendant from forming the specific intent required for the original charge. However, unless
From intoxicated to the point of insanity the accused could still form the intention to strike the man (the charge of assault only
judgement requiring that the defendant have applied force intentionally).

From judgement:

In considering the question of mens rea, a distinction should be made between "intention" for acts done to achieve an
immediate end and acts done for specific and ulterior motive to achieve an illegal object.
Acts for immediate end maybe purely physical manifestations of momentary passion. But acts with ulterior motive involve

Page | 54
 forming a specific intent. An intoxicated person may intentionally strike someone at a time when his mind is unable to
formulate a specific intent.
Robbery requires specific intent, but common assault simply refers to physical act of applying force to another person.

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

The accused killed a man but claimed to have acted without intent because he was intoxicated.   The evidence revealed that he
had been drinking with the victim and some friends and that the killing occurred when the victim said something to offend him.  
FACTS
After being instructed on provocation, self-defence and intoxication, the jury found the accused guilty of second-degree murder. 
The Court of Appeal, however, allowed his appeal. Crown appealed.  
ISSUE How juries should be instructed regarding evidence of intoxication

JUDGEMENT Appeal dismissed to SC

Intoxication is not a defense on basis that accused had no capacity to form intent.
PRINCIPLE Intoxication is simply a factor to be considered in assessing whether crown has proved beyond reasonable doubt accused had
required intent
• Before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the
intoxication was such that its effect might have impaired the accused’s foresight of consequences sufficiently to raise a
reasonable doubt. Once satisfied of this, the judge must make it clear to the jury that the issue before them is whether
the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent. In the case of
murder, the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely
consequence was death.
NOTES
• [“capacity” to form intent] language no longer to be used while instructing jury, intoxication is simply a factor to be
From
considered in assessing whether crown has proved beyond reasonable doubt accused had required intent;
judgement
• effect of rule was accused may be convicted of murder even if evidence raises reasonable doubt as to existence of intent
element of offence
• Before intoxication is considered by jury, he/she must be satisfied that effect of intoxication is such that effect might
have impaired accused’s foresight of consequences sufficiently to raise reasonable doubt
• The main issue for jury is whether crown satisfied them beyond reasonable doubt accused had requisite intent

Notes for self In this case the court decided that while instructing the jury, judge must make sure that the jury understands that
intoxication is relevant only so long as it has raised reasonable doubt as to crown’s case.
If the jury is mislead to believe that intoxication is relevant if it raises doubt as to ‘capacity’ of accused to form intent,
then it may find innocent person guilty. Eg. Someone who may not be intoxicated enough to lack capacity to form intent

Page | 55
 but may have still not had subjective mens rea may get wrongly convicted.

EXTREME INTOXICATION

R v Daviault, [1994] 3 SCR 63

Daviault, an alcoholic, delivered a bottle of brandy to a 65 year-old woman in a wheelchair. She had one drink and fell asleep.
Daviault, who had already been drunk during the day, drank the rest of the bottle. This put him at a level of intoxication that
would lead to coma or death in most people. He sexually assaulted the woman; however he was so drunk that he did not
FACTS
remember any of it. Expert evidence was adduced at trial stating that a blood alcohol level as high as Daviault's could have
resulted in an episode of "l'amnésie-automatisme", also known as a blackout. Daviault was acquitted at trial, as the judge held he
was so intoxicated that he was unable to form the mens rea of the offence, but the Court of Appeal substituted a conviction.
Does voluntary intoxication to a point that closely resembles automatism, act as a defence for crimes of general intent like
ISSUE
assault and sexual assault?

JUDGEMENT SC ordered new trial.

 If an accused is intoxicated to the extent that they have no control over their action and they are acting autonomously
then they cannot form the necessary mens rea to commit crimes, or be said to act voluntarily; thus, being this intoxicated
is a defence to crimes requiring both general and specific intent.
PRINCIPLE
 The burden of proof is on the accused to prove this on a balance of probabilities.

• Mental aspect of offence long recognized as integral part of crime – to eliminate it would deprive accused of
fundamental justice; to deny even very minimal mental element required for sexual assault offends Charter (para 47)
NOTES
• Person in state of automatism cannot perform voluntary act – someone in extreme state of intoxication akin to
From
automatism also deprived of that ability; Charter s.7 would be offended if accused who was not acting voluntarily could
judgement
be convicted of criminal offence (para 59)

R v Bouchard-Lebrun, 2011 SCC 58

B brutally assaulted two individuals while he was in a psychotic condition caused by drugs he had taken a few hours earlier.   As
a result of these incidents, B was charged with aggravated assault.  The trial judge convicted B on the basis that all the elements
FACTS of s. 33.1 of CC which provides that self-induced intoxication cannot be a defence to an offence against the bodily integrity of
another person, had been proven beyond a reasonable doubt.  B then tried unsuccessfully on appeal to obtain a verdict of not
criminally responsible on account of mental disorder under S. 16 CC.  The Court of Appeal held that s. 33.1 CC applied in this case

Page | 56
 ISSUE In case of psychosis caused by drugs, can defence of insanity apply?

PRINCIPLE Intoxication and insanity are two distinct legal concepts.

• Intoxication & insanity two distinct legal concepts, if s.16 insanity not applicable (or proved), court can consider self-
induced intoxication under s.33.1 –
• toxic psychosis not mental disorder but covered under s.33.1

NOTES • 3 conditions under s.33.1: (1) accused intoxicated at material time; (2) self-induced; (3) accused departed from
From standards of reasonable care generally recognized in Canadian society by interfering or threatening to inference with
judgement bodily integrity of another –
• where these three things are proved accused has no defence to general intent offence on ground that lacked
voluntariness to commit offence; s.33.1 applies to any mental condition that is direct extension of state of intoxication
(para 89)

SELF DEFENCE

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

Lavallee and her common law partner R had an abusive relationship, however she kept coming back. On the night of the killing,
there was a party at their house. Rust hit her and told her that she was going to "get it" when all the guests left. He threatened to
harm her, saying "either you kill me or I'll get you". During the altercation Rust slapped her, pushed her and hit her twice on the
head. At some point during the altercation he handed Lavallee a gun, which she first fired through a screen. Lavallee
FACTS
contemplated shooting herself, however when Rust turned around to leave the room she shot him in the back of the head. She
was charged with murder. A psychiatrist gave expert evidence at trial describing her state of mind, and that she felt as though
she was "trapped" and that she would have been killed if she did not kill him. The jury acquitted her at trial, but this was
overturned at the Court of Appeal who ordered a new trial. Lavallee appealed this order to the Supreme Court.
ISSUE
(for our Did the accused reasonably apprehended death or grievous bodily harm under S 34(2) (a) of CC?
purpose)
JUDGEMENT Appeal allowed
PRINCIPLE  Self-defence applies even when you are not directly or immediately in harm.
 Expert testimony can be very helpful in claims of self-defence as it helps the jury/judge understand the condition that
the accused was in when they acted and allows for an objective determination if their actions were reasonable in the

Page | 57
 circumstances.
 Actions that claim to be in self-defence but are too temporally removed or violent in the circumstances to be considered
reasonable will not satisfy the s.34(2) requirements to be a defence.

Expert evidence respecting ability of accused to perceive danger from her partner may go to issue of whether, under s.34(2)(a),
NOTES she “reasonably apprehended” death or grievous bodily harm on particular occasion; such evidence may also explain why she
From did not flee when she perceived her life to be in danger, and thus assist jury, under s.34(2)(b), in assessing reasonableness of her
judgement belief that killing her batterer was only way to save her own life (para 36)

NECESSITY

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

The accused was charged with first degree murder following the death of T, his 12-year-old daughter who had a severe form of
cerebral palsy.  T was quadriplegic and her physical condition rendered her immobile.  She was said to have the mental capacity
of a four-month-old baby, and could communicate only by means of facial expressions, laughter and crying.  T was completely
dependent on others for her care.  She had to be spoon-fed, and her lack of nutrients caused weight loss.  There was evidence
FACTS that T could have been fed with a feeding tube into her stomach, an option that would have improved her nutrition and health,
and that might also have allowed for more effective pain medication to be administered, but the accused and his wife rejected
this option.  After learning that the doctors wished to perform additional surgery, which he perceived as mutilation, the accused
decided to take his daughter’s life.  Accused was found guilty of second degree murder; the Court of Appeal upheld the accused’s
conviction and sentence, but this Court ordered a new trial.
ISSUE What are the elements of defence of necessity?

JUDGEMENT The appeals against conviction and sentence should be dismissed.

PRINCIPLE Three elements recognized for defence of necessity

NOTES • Three elements required for defence of necessity: (1) requirement of imminent peril or danger; (2) accused must have
From had no reasonable legal alternative to course of action he/she undertook; (3) there must be proportionality between
judgement harm inflicted and harm avoided (para. 28)
• First element – disaster must be imminent, or harm unavoidable and near; not enough that peril foreseeable or
likely;
• Second element – if there was reasonable legal alternative to breaking the law, there is no necessity;
• Third element – harm inflicted must not be disproportionate to harm accused sought to avoid

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 • Standard to apply to necessity: objective or subjective standard?
• Modified objective test appropriate for first and second requirements, imminent peril and no reasonable legal
alternative: objective evaluation applies, but one which takes into account situation and characteristics of particular
accused (paras 32, 33)
• Third requirement, proportionality, must be measured on purely objective standard – evaluating nature of act is
fundamentally determination reflecting society’s values as to what is appropriate and what represents a transgression
(para. 34)
• No air of reality to three requirements of necessity in circumstances of case

DURESS

R v Ryan, 2013 SCC 3

R was the victim of a violent, abusive and controlling husband.  She believed that he would cause her and their daughter serious
bodily harm or death and that she had no safe avenue of escape other than having him killed. She hired undercover RCMP officer
posing as a hit man.  She was arrested and charged. The trial judge was satisfied beyond a reasonable doubt that the requisite
elements of the offence were established.  The only issue at trial was whether the defence of duress applied.  The trial judge
FACTS
accepted R’s evidence that the sole reason for her actions was intense and reasonable fear arising from her husband’s threats of
death and serious bodily harm to herself and their daughter.  The trial judge found that the common law defence of duress
applied and acquitted R.  On appeal, for the first time, the Crown argued that duress was not available to R in law. The Court of
Appeal upheld the acquittal. 
ISSUE Whether defence of duress is available to accused

JUDGEMENT Appeal allowed

The defence of duress is only available when a person commits an offence while under compulsion of a threat made for the
PRINCIPLE
purpose of compelling him or her to commit the offence. 
NOTES • Court notes common elements between common law and Code provision for duress (para. 81):
From – Explicit or implicit threat of present or future death or bodily harm proffered against accused or third party
judgement – Accused reasonably believes threat would be carried out
– No safe avenue of escape, to be evaluated on modified objective standard
– Close temporal connection between threat and harm threatened
– Proportionality between harm threatened and harm inflicted by accused; harm caused to be equal or no greater
than harm threatened, evaluated on modified objective standard
– Accused not party to conspiracy or association where accused subject to compulsion and actually knew that

Page | 59
 threats or coercion possible result of criminal activity, conspiracy or association.

Notes to self Might have qualified under necessity (not duress)

PROVOCATION

R v Tran, [2010] 3 S.C.R. 350

The accused had knowledge that his estranged wife was involved with another man. One afternoon, the accused entered his
estranged wife’s home, unexpected and uninvited, and he discovered his estranged wife in bed with her boyfriend.   The
FACTS accused viciously attacked them both, killing the boyfriend by repeatedly stabbing him.  Having accepted the defence of
provocation, the trial judge acquitted the accused of murder, but convicted him of manslaughter.  The Court of Appeal allowed
the Crown’s appeal and substituted a conviction for second degree murder. Accused appealed.
ISSUE Did the accused meet necessary elements of provocation?

JUDGEMENT Appeal dismissed

PRINCIPLE Elements of provocation established

• Both objective and subjective component to provocation defence in s.232:
• Once established that wrongful act/insult sufficient to deprive ordinary person of self-control, inquiry turns into
consideration of subjective element of defence: whether accused acted in response to provocation and on sudden
before passion could cool;
• Focus on accused’s subjective perceptions of circumstances, including what he/she believed, intended or knew;
• Subjective element:
NOTES • (1)the accused must have acted in response to the provocation and
From • (2) on the sudden before there was time for his/her passion to cool (para 36)
judgement • Ordinary person standard informed by contemporary norms of behaviour – accused must have justifiable sense of
being wronged, personal circumstances may be relevant to determining whether person provoked, but this does not
shift ordinary person standard to suit individual accused;
• objective element:
• (1) there must be wrongful act or insult; and
• (2) wrongful act or insult must be sufficient to deprive ordinary person of power of self-control (para 25)

Page | 60
ENTRAPMENT

R v Mack, [1988] 2 S.C.R. 903

Mack was convicted of unlawful possession of a narcotic for the purpose of trafficking. He claims that he got into the
FACTS transaction because of undercover police tactics that involved persistent inducement of fear. Mack was convicted at trial and
the B.C. C.A. dismissed his appeal.
ISSUE How should the courts deal with the doctrine of entrapment?

JUDGEMENT Appeal allowed; Conviction set aside, proceedings stayed.

Entrapment is not dependant on culpability, so an objective assessment of the conduct of police and their agents is
PRINCIPLE
required.
• there is entrapment when (a) authorities provide person with opportunity to commit offence without acting on
reasonable suspicion that person already engaged in criminal activity or pursuant to bona fide inquiry; (b) although
having such reasonable suspicion or acting in bona fide inquiry, they go beyond providing opportunity, induce
NOTES commission of offence (para 130)
From • As far as possible objective assessment of conduct of police and their agents required; predisposition of accused never
judgement relevant as regards whether they went beyond offer, since that is to be assessed with regard to what average non-
predisposed person would have done
• Onus on accused to prove on balance of probabilities that conduct of state is abuse of process due to entrapment –
guilt or innocence of accused not in issue (para 154)
R v Barnes, [1991] 1 S.C.R. 449
Random virtue testing case, accused approached on hunch that in possession of drugs. Undercover officer asked for ‘weed’, accused
denied. She persisted until he agreed to a sell small amount of cannabis resin.  Another officer arrested the appellant shortly
afterwards
FACTS The appellant was found guilty of trafficking.  The trial judge found, however, that the police officer had engaged in "random virtue
testing" and granted a judicial stay for entrapment.  The British Columbia Court of Appeal allowed the Crown's appeal of the finding
of entrapment and ordered a new trial. 

Page | 61
 ISSUE Was there entrapment?

JUDGEMENT No entrapment.

No entrapment when person is in physical location associated with particular criminal activity for which accused is
PRINCIPLE
arrested.
• Random virtue testing arises when police officer presents person with opportunity to commit offence without
reasonable suspicion that (a) person already engaged in particular criminal activity, or (b) physical location where
person associated is place where particular criminal activity likely occurring.
NOTES
• Accused approached by officer when walking near Granville Mall, notion of being associated with area does not
From
require more than being present in area, accused thus associated with location where it was reasonably believed drug-
judgement
related crimes were occurring;
• Officer’s conduct justified under first branch of test for entrapment set out in R v Mack.

IGNORANCE OF THE LAW

Lilly v The Queen, [1983] 1 SCR 794

Appellant, a licensed real estate broker, was convicted of theft of $$$, being sums deposited “in trust” with respect to real
property transactions. The appellant relied, for 18 of the 21 transactions involved in the count on which he was found guilty, on
the defence of colour of right alleging he thought he could lawfully transfer the amounts from the “in trust” account to the
FACTS
agency’s general account once the offer to purchase the property had been accepted. As to the other transactions involving a
total of $13,500 he relied on an alleged lack of knowledge of the transfers. The Court of Appeal dismissed appellant’s appeal.
This appeal is to determine whether the trial judge misdirected the jury as to the meaning of the phrase “colour of right”.
ISSUE Is the accused entitled to color of right defence?

JUDGEMENT The appeal should be allowed and a new trial ordered.

Defence of color of right applies to accused’s belief (did he, at the time of the act, have an honest belief that he had the right to
PRINCIPLE
something) and not upon what his actual rights were.
Legal error about who owns property may afford defence to theft and other property offences as fault element requires
NOTES accused act without colour of right;
From Colour of right based on mistaken belief by accused as to his/her legal entitlement prevents Crown from proving offence –
judgement issue is accused’s belief, not the actual legal entitlement

Page | 62
 R v Jones, [1991] 3 SCR 110
The appellants were charged with unlawfully conducting a bingo contrary to the Criminal Code. The charges arose out of gaming
operations at the Indian Reserve, which were initiated under First Nation.  Before conducting the lotteries, the appellants had been
FACTS advised by representatives of the province, including the Ontario Provincial Police, that the Criminal Code prohibits lottery schemes,
other than those conducted under the auspices of a provincial licence.  The appellants were convicted at trial and their convictions
affirmed by the Court of Appeal.
ISSUE Whether the appellants were entitled to be acquitted by reason of a defence of colour of right.  That right was the belief that CC did
not apply to their activities since they were carried out on a reserve which they thought was not subject to the laws of Canada
relating to gaming.
JUDGEMENT The appeal should be dismissed.

Appellants' mistake was one of law, rather than of fact. They mistakenly believed that the law did not apply because it was
PRINCIPLE
inoperative on Indian reserves. A mistake about the law is no defence to a charge of breaching it.

NOTES Accused did not have defence because they believed they were not legally required to have provincial licence to operate bingo on
From Aboriginal reserve – mistake was not a defence as it related to believing law does not apply as being inoperative on the reserves
judgement

Levis (City) v. Tetreault, 2006 SCC 12

Company accused of operating vehicle without renewing its registration. Driver charged with driving on expired permit.
FACTS
Officially induced error argued. City sent renewal notice without complete address, which was returned to city.
ISSUE Whether officially induced error of law is recognised defence under Strict liability

Officially induced error is recognized as a defence for strict liability offences.

JUDGEMENT
The company did not prove that there was officially induced error, hence company and driver fined.

PRINCIPLE Officially induced error of law is a recognised defence for strict liability
NOTES • Defence of officially induced error of law recognized by Supreme Court for strict liability offences under Quebec
From Highway Safety Code, (although not made out successfully by the company)
judgement • Concept of diligence based on acceptance of citizen’s civic duty to take action to find out what his/her obligations are
– passive ignorance not valid defence
• Company failed to establish conditions for officially induced error of law defence:

Page | 63
 (1) error of law/mixed law made;
(2) person who committed act considered legal consequences of his/her actions;
(3) advice obtained came from appropriate official;
(4) advice reasonable;
(5) advice erroneous; and
(6) person relied on advice in committing act (para. 26)

R. v. MacDonald, 2014 SCC 3

Police responded to a noise complaint at M’s home.  When M opened the door, an officer observed that M had an object in his
hand, hidden behind his leg.  The officer twice asked M what was in his hand.  Because M did not answer, the officer pushed the
door open a few inches further to see.  A struggle ensued and M was disarmed of a loaded handgun.  M was licensed to possess
and transport the handgun in Alberta, but not in Nova Scotia as he believed he was. 
FACTS
At trial, the judge concluded that M’s possession of the gun was unauthorized.  He also concluded that the officer’s pushing the
door open further did not breach M’s s. 8 Charter right to be free from unreasonable search.  The trial judge convicted M of
multiple accounts related to firearm. Court of Appeal upheld the trial judge’s decision that the officer did not breach M’s s.  8
Charter right, but significantly reduced the sentences.  
ISSUE Was M’s S.8 Charter right infringed?

JUDGEMENT The appeal of the s. 8 Charter issue should be dismissed

PRINCIPLE Did officer’s conduct constitute search under S.8 of Charter?

The officer’s action of pushing the door open further constituted a “search” for purposes of s. 8 of the Charter.  The action went
beyond the implied licence to knock on the door and constituted an invasion of M’s reasonable expectation of privacy in his
home. 
Although the officer’s action constituted a search for s. 8 purposes, that search was reasonable because both stages of the
NOTES
Waterfield test were satisfied. 
From
judgement Waterfield test:
(i) does conduct fall within general scope of duty imposed by statute or common law- (yes, common law police duty
to protect life and safety)
(ii) whether such conduct involves non-justifiable use of powers associated with that duty (yes, search constitutes a
justifiable exercise of powers associated with the duty)

Page | 64
ADVERSARIAL PROCEEDING

Presumption of Innocence and Ultimate Standard of Proof

R. v. Lifchus, [1997] 3 S.C.R. 320

The accused, a stockbroker, was charged with fraud.  The trial judge told the jury in her charge on the burden of proof that
she used the words “‘proof beyond a reasonable doubt’  . . . in their ordinary, natural every day sense”, and that the words
FACTS “doubt” and “reasonable” are “ordinary, every day words that . . . you understand”.  The accused was convicted of fraud.  On
appeal, he contended that the trial judge had erred in instructing the jury on the meaning of the expression “proof beyond a
reasonable doubt”.  The Court of Appeal allowed the appeal and ordered a new trial. Crown appealed to SC.
ISSUE Did the judge err in instructing Jury on meaning of ‘proof beyond reasonable doubt’?

JUDGEMENT Appeal dismissed. New trial order upheld.

PRINCIPLE Definition of Proof beyond Reasonable Doubt.

Jury should be explained that A reasonable doubt is not an imaginary or frivolous doubt.  It must not be based upon sympathy
or prejudice, but on reason and common sense.  It is logically derived from the evidence or absence of evidence.
 Even if jury believes the accused is probably guilty or likely guilty, that is not sufficient- Accused must be given benefit of the
doubt and acquitted because the Crown has failed to prove guilt of the accused beyond a reasonable doubt.
On the other hand jury must remember that it is virtually impossible to prove anything to an absolute certainty and the
NOTES Crown is not required to do so.  Such a standard of proof is impossibly high.
From  Therefore, if, based upon the evidence before the court, jury is sure that the accused committed the offence, they should
judgement convict since this demonstrates that jury is satisfied of the guilt beyond a reasonable doubt.
What judge should not say:
Judge should refrain from describing the term “reasonable doubt” as an ordinary expression which has no special meaning in
the criminal law context. Jurors should not be asked to use the same standard of proof they use in everyday important
decisions. Beyond reasonable doubt should not be equated to proof of “moral certainty”. Judge should not advise jurors to
convict if they are ‘sure’ that accused is guilty, before explaining them properly what ‘beyond reasonable doubt” means.

Page | 65
 R. v. Starr [2002] 2 S.C.R. 144
Accused convicted of first degree murder. Case was about hearsay evidence and its exceptions. As a side note, issues of judge
FACTS
not being able to charge the jury on ‘beyond a reasonable doubt’ also came up.
PRINCIPLE Reasonable doubt is much closer to absolute certainty than balance of probability
• Trial judges would err if they did not make it clear to jury that the reasonable doubt standard was much closer to
NOTES absolute certainty than the civil balance of probabilities standard
From • Effective way to define reasonable doubt standard for jury is to explain that it falls much closer to absolute certainty
judgement than proof on balance of probabilities.
• Something less than absolute certainty and something more than probable guilt is required to prove BoP.

R v J.H.S., 2008 SCC 30

The accused was charged with sexual assaultafter the complainant alleged that the accused had sexually abused her over a
number of years.  Accused denied it.  The issue at trial was whether the alleged events had ever happened.  The complainant
and the accused were the principal witnesses. 
The trial judge charged the jury on the credibility of the witnesses and specifically instructed the jury that the trial was not a
FACTS choice between two competing versions of events.  The jury returned a verdict of guilty.  A majority of the Court of Appeal set
aside the conviction and ordered a new trial on the basis that the trial judge insufficiently explained the principles of
reasonable doubt as they applied to credibility, concluding that the jury was not clearly instructed that lack of credibility on
the part of the accused does not equate to proof of his guilt beyond a reasonable doubt.  The dissenting judge would have
upheld the conviction finding that the charge to the jury was sufficient.
ISSUE Relationship between assessment of credibility and Proof beyond reasonable doubt standard

JUDGEMENT Appeal allowed, conviction restored.

Where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of
PRINCIPLE
credibility and the Crown’s ultimate burden to prove the guilt of the accused to the criminal standard.
General instruction on reasonable doubt, without adverting to its relationship to credibility/lack of credibility of witnesses,
NOTES gives rise to confusion or misunderstanding.
From Must be made crystal clear to jury that burden never shifts from crown to prove every element of offence beyond reasonable
judgement doubt. Where credibility is important, jury must not have impression that it must choose between versions of events – lack of
accused’s credibility does not equate to proof of guilt beyond reasonable doubt.

Page | 66
OTHER BURDENS

R. v. Arcuri, S.C.C. (2001)

The accused was charged with first degree murder.  At the preliminary inquiry, the Crown’s case was entirely circumstantial
and the accused called two witnesses whose testimony was arguably exculpatory.  The preliminary inquiry judge rejected the
accused’s contention that he must weigh the evidence and, after viewing the evidence as a whole, determined that the
FACTS accused should be committed to trial for second degree murder.  The accused’s certiorari application was dismissed and that
decision was affirmed by the Court of Appeal.  The issue before this Court was whether the preliminary inquiry judge, in
determining whether the evidence was sufficient to commit the accused to trial, erred in refusing to weigh the Crown’s
evidence against the allegedly exculpatory direct evidence adduced by the accused. 
JUDGEMENT Appeal dismissed
Where direct evidence adduced on all elements of offence, case must proceed to trial;
NOTES
Where circumstantial evidence, judge must engage in limited weighing of whole of evidence, determine whether reasonable
From
jury properly instructed could return verdict of guilty, not for judge to draw inferences from facts or assess credibility (paras
judgement
20-23)
R v Cinous, 2002 SCC 29

R v Cinous, 2002 SCC 29

C was involved in criminal underworld. C was with X and Y and said he knew they were planning on killing him. C went in to
FACTS
store. When came back saw an opportunity and shot X and Y
ISSUE Is there an air of reality to the defence of self-defence?

JUDGEMENT Dismissed

PRINCIPLE Air of reality test

Defence should be put to jury only if evidential foundation for it, or “air of reality”, which imposes burden on accused which is
merely evidential, not persuasive;
NOTES
In applying air of reality test, judge considers totality of evidence, assumes accused’s evidence to be true, determination not
From
aimed at deciding substantive merits of defence – question is whether evidence discloses real issue for jury, not how it should
judgement
ultimately decide the issue (para 50)

Analysis Elements:

Page | 67
 *Unlawful attack, (C has this, both objective and subjective)
*Reasonable apprehension of harm and death, and (C has this both objective and subjective)
*Reasonable apprehension of no alternative to not be hurt or killed (this is where it fails, on the objective part)
→ It is not enough for an accused to establish a subjective conviction that he had no choice but to shoot – the accused must be
able to point to a reasonable ground for that belief
→ The belief he had no option but to kill must be objectively reasonable
→ For 34(2) to succeed at the end of the day a jury would have to accept that the accused believed on reasonable grounds
that his own safety and survival depended on killing the victim at that moment
Comments:
When doing air of reality test for self-defence, must do it both objectively and subjectively. Therefore you would be looking at
the 3 elements from the test 2 times.

R. v. Fontaine, S.C.C. (2004)

Fontaine worked "under the table" at a car garage. R, a former employee, called the store and said "we're coming to get you,
pigs". The next day, D came into the garage to pay off a debt and Fontaine, thinking he was the hitman, shot him seven times,
killing him.
He turned himself into the police. He claimed that he was "frozen" at the time of the murder and only partially recollected it;
FACTS he said that his actions were not his own. Several different doctors testified, and stated that it was possible that Fontaine
suffered from paranoia. The doctor for the defence found conclusively that Fontaine did have a major psychological disorder
and that he was unable to determine right from wrong.
The trial judge did not put mental-disorder automatism to the jury, who convicted him; the Court of Appeal overturned this
and issued a new trial, stating that the defence should be left to the jury.
PRINCIPLE Discussion about Evidential and Persuasive burden on accused
• Evidential burden” is not burden of proof, it determines whether issue should be left with trier and “persuasive
burden” determines how issue should be decided – these are fundamentally different questions, first is matter of law,
second question of fact;
• Judge decides whether evidential burden met, whether there is evidence upon which properly instructed jury could
NOTES reasonably decide issue
From • In case of “reverse onus” defence, such as mental disorder automatism, accused bears both persuasive, evidential
judgement burdens ;
• Persuasive burden discharged by evidence on balance of probabilities;
• Evidential burden discharged where there is some evidence that puts defence “in play” – whenever properly
instructed jury could reasonably, on account of that evidence, conclude in favour of accused

Page | 68
 R. v. Oakes, S.C.C. (1986)
Oakes charged with unlawful possession of narcotic for purpose of trafficking. Oakes claims s.8 of Narcotics Act (assumption
FACTS that accused had narcotics for selling unless proved otherwise by accused) violates presumption of innocence contained in
s.11(d) of Charter.
Provision which requires accused to disprove (on balance of probabilities) existence of presumed fact, which is important
NOTES element of offence in question, violates s.11(d) presumption of innocence, not saved by s.1 in this case – no rational
From connection between basic fact of possession, presumed fact of possession for purpose of trafficking, eg., possession of small
judgement quantity of narcotics does not support inference of trafficking

NEUTRAL IMPARTIAL TRIER

R. v. Gunning, [2005] 1 S.C.R 627

During a party at his house, the Appellant assaulted one of the other partygoers, causing him bodily harm (at trial the
Appellant conceded this offence). Victim left, the returned to get his stereo equipment from the basement. The Appellant
attacked victim with a knife, victim disarmed appellant but did not leave. At some point, the two started to grapple with one
another. In the course of these events, victim was severely cut across the face.
FACTS The trial judge instructed the jury that Crown had proven unlawful act necessary to prove murder or manslaughter. The
Appellant was charged with assault causing bodily harm and aggravated assault. The Appellant conceded the assault. The
trial judge acquitted the Appellant of aggravated assault. On appeal, the Court of Appeal allowed the appeal against the
acquittal and substituted a verdict of guilty of aggravated assault for the acquittal.

ISSUE Did the trial judge err in instructing jury

JUDGEMENT The appeal should be allowed. The conviction should be set aside and a new trial ordered.

PRINCIPLE Trial judge cannot direct a verdict of guilty.

• Trial judge erred in instructing jury Crown had proven unlawful act necessary to prove murder or manslaughter –
jury is to decide whether offence has been proven on the facts
NOTES
• Judge entitled to give opinion on question of fact, but not a direction – no entitlement to direct verdict of guilty
From
• The judge is entitled to give an opinion on a question of fact but not a direction. A trial judge has no duty or
judgement
entitlement to direct a verdict of guilty and the duty to keep from the jury affirmative defences lacking an evidential
foundation does not detract from this principle. (paras 27-33)

Page | 69
 R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.)
H and M pleaded guilty to importing cocaine. H, a 26-year-old black single mother with no criminal record, agreed to act as a
courier for compensation. She had no financial interest in the cocaine and no involvement in its proposed distribution. H had
a grade nine education and few employable skills, and was unemployed at the time of sentencing. M was a black single
mother, aged 31 at the time of the offence, with no criminal record. Both accused were remorseful. The trial judge found that
FACTS the accused should receive conditional sentences.
The trial judge introduced hundreds of pages of his own statistical research into societal ills into the proceedings, and relied
upon these materials in support of his conclusion that the accused, because of their race, gender and poverty, were
particularly vulnerable targets to those who sought out individuals to act as cocaine couriers. He gave conditional sentence
and suspended sentence with curfew to both. The Crown appealed.
ISSUE Did the trial judge compromise his neutrality?

JUDGEMENT Held, the appeal should be dismissed.

• Court of Appeal rejects arguments that trial judge’s conduct gives rise to reasonable apprehension of bias, but critical
that he assumed combined role of advocate, witness and judge – although sentence upheld – judges must be very
careful before introducing issues into sentencing proceeding, this is role traditionally left to counsel
• Problems created by judge’s conduct:
NOTES • Appearance of impartiality put at risk;
From • Fundamental disconnect between case on sentencing presented by counsel and issue raised by
judgement judge;
• Real risk of inaccurate fact finding as material not analyzed or tested before court;
• Evidence introduced played virtually no role in determining appropriate sentence, consumed lot of
court time

ROLE OF PROSECUTOR

Page | 70
 Krieger v. Law Society of Alberta, [2002] 2 S.C.R. 372
K was assigned to prosecute an accused charged with murder.  Prior to the commencement of the preliminary inquiry, he
received the results of DNA and biological tests conducted on blood found at the scene of the crime which implicated a
different person than the accused.  Ten days later, he advised the accused’s counsel that the results of the testing would not
be available in time for the preliminary inquiry.  The defence counsel only learned of the testing results at the preliminary
hearing, and complained to the Deputy Attorney General that there had been a lack of timely and adequate disclosure.   K was
FACTS reprimanded and removed from the case after a finding that the delay was unjustified.  Six months later, the accused
complained to the appellant Law Society about K’s conduct. 
K sought an order that the Law Society had no jurisdiction to review the exercise of prosecutorial discretion by a Crown
prosecutor and an order that the Rule of the Code of Professional Conduct requiring a prosecutor to make timely disclosure to
the accused or defence counsel was of no force and effect.  K’s application was dismissed by the Court of Queen’s Bench, but
that decision was overturned by the Court of Appeal.
ISSUE Did Law society have jurisdiction to review Crown’s prosecutorial discretion?

JUDGEMENT The appeal should be allowed and the trial judgment restored.
Prosecutorial discretion will not be reviewable except in cases of flagrant impropriety. Decisions that do not go to the
nature and extent of the prosecution, such as the decisions that govern a Crown prosecutor’s tactics or conduct
before the court, do not fall within the scope of prosecutorial discretion, however, but are governed by the inherent
jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.  
NOTES Because Crown prosecutors must be members of the Law Society, they are subject to the Law Society’s code of
From professional conduct, and all conduct that is not protected by the doctrine of prosecutorial discretion is subject to the
judgement conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but rather a
legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting
dishonestly or in bad faith failed to disclose relevant information, notwithstanding that the Attorney General
had reviewed it from the perspective of an employer.  A clear distinction exists between prosecutorial discretion and
professional conduct, and only the latter can be regulated by the Law Society. 

Page | 71
 R. v. Nixon, 2011 SCC 34
The accused drove her motor home through an intersection and struck another vehicle, killing a husband and wife and
injuring their young son.  She was charged with several CC offences reference to dangerous driving. Counsel initially entered
into a plea agreement which would reduce sentence to a fine under provincial traffic act, in return for which the Crown
agreed to withdraw the CC charges. 
The Office of the Attorney General believed that plea to careless driving in the circumstances was contrary to the interests of
justice and would bring the administration of justice into disrepute.  Crown counsel was instructed to withdraw the plea
FACTS agreement and to proceed to trial.  In response, the accused brought a S.7 Charter application alleging abuse of process and
seeking a court direction requiring the Crown to complete the plea agreement. 
The application judge held that negotiations between counsel after charges are laid are matters of tactics or conduct which
are subject to review by the court, and that the repudiation of the plea agreement, in this case, was not justified.   He
concluded that the accused’s S. 7 Charter right was breached and he directed the Crown to proceed with the agreement.   The
Court of Appeal allowed the Crown’s appeal, finding that the repudiation of a plea agreement is a matter of prosecutorial
discretion not reviewable by the courts, subject to the doctrine of abuse of process.
ISSUE Was accused’s S.7 right violated?

JUDGEMENT Appeal dismissed

 There are two categories of abuse of process under s. 7 of the Charter: 
(1) prosecutorial conduct affecting the fairness of the trial; and
(2) prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of
the judicial process. 
 While s. 24(1) of the Charter allows for a wide range of remedies, this does not mean that abuse of process can be
NOTES
made out by demonstrating a lesser degree of harm, either to the accused’s fair trial interests or to the integrity of
From
the justice system. 
judgement
 Achieving the appropriate balance between societal and individual concerns defines the essential character of abuse
of process.
 The situations in which the Crown can properly repudiate a plea agreement are, and must remain, very rare.  It is the
circumstances surrounding the repudiation of a plea agreement which should be reviewed to determine whether
that decision amounts to an abuse of process.

Page | 72
 R. v. Babos, 2014 SCC 16
The accused was being tried for meth related offences.  During the course of the trial, the accused brought an application to
stay the proceedings for abuse of process.  They alleged three forms of state misconduct: attempts by the Crown to intimidate
FACTS them into pleading guilty, collusion on the part of two police officers to mislead the court about the seizure of a firearm, and
improper means used by the Crown in obtaining the medical records of one of the accused.  The trial judge stayed the
proceedings.  The Court of Appeal set aside the stay and ordered a new trial.
ISSUE Did prosecutor abuse the process?

JUDGEMENT The appeals should be dismissed.

A stay of proceedings may be imposed when the state conduct is so profoundly and disproportionately inconsistent with the
public perception of what a fair justice system requires, that proceeding with a trial means condoning unforgiveable conduct. 

Two types of state conduct may warrant a stay. 

(i) The first is conduct that compromises the fairness of an accused’s trial (the “main” category). 
(ii) The second is conduct that does not threaten trial fairness but risks undermining the integrity of the judicial
process (the “residual” category).  
The test for determining whether a stay of proceedings is warranted is the same for both categories and consists of three
requirements:  
(1) there must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be
manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome,
NOTES (2) there must be no alternative remedy capable of redressing the prejudice, and
From (3) where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court must balance the
judgement interests in favour of granting a stay against the interest that society has in having a final decision on the merits. 

 When the residual category is invoked, the first stage of the test is met when it is established that the state has
engaged in conduct that is offensive to societal notions of fair play and decency, and that proceeding with a trial
in the face of that conduct would be harmful to the integrity of the justice system.  
 At the second stage of the test, the focus is on whether an alternate remedy short of a stay of proceedings will
adequately dissociate the justice system from the impugned state conduct going forward. 
 Finally, the court must decide whether staying the proceedings or having a trial despite the impugned conduct
better protects the integrity of the justice system. 
 The court must consider such things as the nature and seriousness of the impugned conduct, whether the
conduct is isolated or reflects a systemic and ongoing problem, the circumstances of the accused, the charges he
or she faces, and the interests of society in having the charges disposed of on the merits. 

Page | 73
 R. v. Anderson, 2014 SCC 41
The accused was convicted of impaired driving. The offence of impaired driving carries with it a minimum sentence. These
mandatory minimum sentences apply only if the Crown notifies the accused of its intention to seek a greater punishment
prior to any plea. Crown counsel served a Notice of intent to seek greater punishment by reason of the accused’s four
FACTS
previous impaired driving convictions. The trial judge held that Crown counsel breached S. 7 of the Charter by tendering the
Notice without considering the accused’s Aboriginal status. The accused was sentenced to a 90-day intermittent sentence.
The Court of Appeal dismissed an appeal from sentence.
1) Whether S. 7 of the Charter requires the Crown to consider an accused’s Aboriginal status when making decisions
ISSUE that limit the sentencing options available to a judge (2) whet her the decision to tender the Notice is a matter of
“core” prosecutorial discretion, and if so, the standard by which it may be reviewed.
The appeal should be allowed and a term of imprisonment of 120 days should be substituted, with service of the remainder of
JUDGEMENT
the sentence stayed in accordance with the concession of the Crown.
 Crown prosecutors are not constitutionally required to consider the Aboriginal status of an accused when deciding
whether or not to seek a mandatory minimum sentence for impaired driving for two reasons.
 While it is a principle of fundamental justice that a sentence be proportionate to the gravity of the offence and the
degree of responsibility of the offender, the duty to impose a proportionate sentence rests upon judges, not Crown
prosecutors.
NOTES
 Prosecutorial discretion is reviewable for abuse of process. The abuse of process doctrine is available where there is
From
judgement evidence that the Crown’s conduct is egregious and seriously compromises trial fairness or the integrity of the justice
system. The burden of proof lies on the accused to establish, on a balance of probabilities, a proper evidentiary
foundation to proceed with an abuse of process claim, before requiring the Crown to provide reasons justifying its
decision.
 Tendering the Notice was a matter of prosecutorial discretion.

GETTING READY FOR TRIAL

POLICE POWERS

Page | 74
 R. v. Grant, 2009 SCC 32
Psychological Detention
Police officers were on patrol in school areas. 2 of the officers were dressed in plain clothes. 1 in uniform in a different vehicle.
(3 officers were larger then Grant). 2 officers felt Grant looked suspicious, and asked the other officer to go talk to him.
FACTS He went to talk to him, Mr. Grant was nervous. Grant was told to keep his hands in front of him. The other two officers went to
identify themselves and stood behind other officer and in front of Grant, blocking his way to go forward. Grant was asked a
series of questions, when he told them he had a firearm they immediately arrested him.
What constitutes detention?
ISSUE
Were Grant's rights under ss. 8, 9 and 10(b) of the Charter violated?

PRINCIPLE Psychological detention when reasonable person may conclude that he/she has no choice but to comply.
• Detention under ss. 9 and 10 of Charter refers to suspension of person’s liberty interest by significant physical or
psychological restraint
• Psychological detention establish where individual has legal obligation to comply with restrictive request or demand,
or reasonable person would conclude by reason of state conduct that he/she had no choice but to comply
• In cases where there is no physical restraint or legal obligation, it may be unclear whether person detained – to
determine whether reasonable person in individual’s circumstances would conclude he/she deprived by state of
NOTES liberty of choice, court may consider following factors:
From (a) circumstances giving rise to encounter as they would reasonably be perceived by the individual ( whether the
judgement police were providing general assistance; maintaining order; making general inquiries regarding a particular
occurrence; or, singling out the individual for focussed investigation.);
(b) nature of police conduct, including the language used; the use of physical contact; the place where the interaction
occurred; the presence of others; and the duration of the encounter.;
(c) particular characteristics or circumstances of individual where relevant, including age; physical stature; minority
status; level of sophistication.
(summary para 44)

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 R. v. Suberu, 2009 SCC 33
Constable R responded to a call about a person attempting to use a stolen credit card at a store.   When R went to store, Suberu
walked past R and said he was leaving. R followed Suberu outside and said “Wait a minute.  I need to talk to you before you go
anywhere”. While R was talking to Suberu, he received information of description and licence plate number of the van driven
by the men who used a stolen credit card at another store earlier that day.  The description and the licence plate number both
matched Suberu’s van.  R also saw shopping bags between and behind the front seats. 
At this point, R decided that he had reasonable and probable grounds to arrest S for fraud.   He advised S of the reason for his
arrest and cautioned him as to his right to counsel.  S brought an application under s. 24(2) of the Charter, seeking the
FACTS
exclusion of any statements made by him and of the physical evidence seized at the time of his arrest, on the ground that this
evidence had been obtained in a manner that infringed his s. 10(b) right to counsel.  Suberu argued that he was detained as
soon as he was told to “wait” and was engaged in questioning by R.  He also argued that R’s failure to inform him of his s. 10(b)
right to counsel at that point in time constituted a Charter breach. 
The trial judge dismissed the application.  S was ultimately convicted at trial on several counts.  Both the summary conviction
appeal court and the Court of Appeal upheld the convictions and the trial judge’s ruling that S’s right to counsel was not
violated.
ISSUE Was the accused detained when he was followed for questioning?

JUDGEMENT Appeal dismissed.

PRINCIPLE Being delayed momentarily is not the same as detention.

The question is whether a reasonable person in similar circumstances would conclude that he or she had no choice but to
NOTES
comply. The fact that a person is delayed by the police is not sufficient to ground a reasonable conclusion that he or she was not
From
free to go, or that he or she was bound to comply with the officer’s request for information.
judgement
Being delayed momentarily not same as detention “Wait a minute, I need to talk to you” not detention (para 34)

R. v. Aucoin, 2012 SCC 66

Late one night, A was stopped by a police officer because the licence plate on the vehicle he was driving was registered to a
different vehicle.  A failed a roadside screening test and the officer decided to impound his vehicle and issue him a ticket
pursuant to the Motor Vehicle Act.  Fearing that A might disappear into the nearby crowd, the officer decided to secure A in the
rear of his police cruiser while completing the paper work.  The officer first conducted a pat-down search, after asking for and
FACTS
receiving A’s permission. The officer felt something soft in A’s pocket and, when asked what it was, A said that it was ecstasy.   A
was arrested and searched further.  The officer found cocaine and pills in his pocket.  The trial judge held that the search did
not violate s. 8 of the Charter and the seized evidence was admissible.  A was convicted for possession of cocaine for the
purpose of trafficking.  His appeal was dismissed by a majority of the Court of Appeal.

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 ISSUE Was Aucoin’s search unreasonable under S.8 of Charter?

JUDGEMENT Appeal dismissed (though court gave some direction regarding unlawful search)
A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was
carried out is reasonable.  The question is not whether there was authority to detain accused, but whether officer was justified
in exercising it in the present circumstances.
Whether there were other reasonable means by which the officer could have addressed his concern about A disappearing into
NOTES the crowd.  The officer’s actions, though carried out in good faith, were not reasonably necessary. Because A’s detention in the
From back of the cruiser would have been unlawful, it cannot constitute the requisite basis in law to authorize the warrantless
judgement pat-down search.
Note: Despite the above, Court declared that the search was in good faith
There were unusual circumstances that prompted the police officer’s conduct in this case and he acted in good faith. When the
police act in good faith and without deliberate disregard for or ignorance of Charter rights, seriousness of the breach may be
diminished.

R. v. Cole, 2012 SCC 53

The accused, a high-school teacher, was charged with possession of child pornography and unauthorized use of a computer.
He was authorised to use his office computer during off-hours. While performing maintenance activities, a technician found
child pornography (underage student). Technician copied files into secondary disk.  The laptop and both discs were handed
over to the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for
forensic purposes. 
FACTS
Trial judge excluded all of the computer material pursuant to ss. 8 and 24(2) of the Charter.  The summary conviction appeal
court reversed the decision, finding that there was no s. 8 breach.  The Court of Appeal set aside that decision and excluded the
disc containing the temporary Internet files, the laptop and the mirror image of its hard drive.   The disc containing the
photographs of the student was found to be legally obtained and therefore admissible.  As the trial judge had wrongly excluded
this evidence, the Court of Appeal ordered a new trial.
ISSUE Did the accused have reasonable expectation of privacy in use of his computer?

The appeal should be allowed.  The exclusionary order of the Court of Appeal is set aside and the order of a new trial is
JUDGEMENT
affirmed.

PRINCIPLE Personal use computers (no matter how infrequently used for personal use), have reasonable expectation of privacy.

NOTES  Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain
From information that is meaningful, intimate, and touching on the user’s biographical core. While workplace policies and

Page | 77
 practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do
not in themselves remove the expectation entirely.  A reasonable though diminished expectation of privacy is nonetheless
a reasonable expectation of privacy, protected by s. 8 of the Charter.
judgement
 Accused has reasonable expectation of privacy in use of his computer, even though extent of privacy diminished;
 When computer handed over to police accused’s s.8 Charter rights against unreasonable search and seizure violated.

R. v. Spencer, 2014 SCC 43

The police identified the Internet Protocol (IP) address of a computer that someone had been using to access and store child
pornography through an Internet file-sharing program.  They then obtained from the Internet Service Provider (ISP), without
prior judicial authorization, the subscriber information associated with that IP address.  The request was purportedly made
FACTS pursuant to Digital law. This led them to the accused.  He had downloaded child pornography into a folder that was accessible
to other Internet users using the same file-sharing program.  He was charged and convicted at trial of possession of child
pornography and acquitted on one other charge.  The Court of Appeal upheld the conviction, however set aside the acquittal on
the other charge of “making available charge” and ordered a new trial.
ISSUE Did accuse have reasonable expectation of privacy while using his computer?

JUDGEMENT Appeal dismissed

PRINCIPLE There is high degree of privacy in online anonymity.

Authority’s obtainment of Spencer’s subscriber information was a search for the purposes of section 8. Spencer had reasonable
expectation of privacy in his subscriber information.  
The court set out three key elements of informational privacy:
NOTES (i) privacy as secrecy,
From (ii) privacy as control, and
judgement (iii) privacy as anonymity.
Anonymity is particularly important in an online context, since subscriber information can associate not only with the person’s
name or address and as user of that information.

Page | 78
 R. v. MacDonald, 2014 SCC 3
Police responded to a noise complaint at M’s home.  When M opened the door, an officer observed that M had an object in his
hand, hidden behind his leg.  The officer twice asked M what was in his hand.  Because M did not answer, the officer pushed the
door open a few inches further to see.  A struggle ensued and M was disarmed of a loaded handgun.  M was licensed to possess
and transport the handgun in Alberta, but not in Nova Scotia as he believed he was. 
FACTS
At trial, the judge concluded that M’s possession of the gun was unauthorized.  He also concluded that the officer’s pushing the
door open further did not breach M’s s. 8 Charter right to be free from unreasonable search.  The trial judge convicted M of
multiple accounts related to firearm. Court of Appeal upheld the trial judge’s decision that the officer did not breach M’s s.  8
Charter right, but significantly reduced the sentences.  
ISSUE Was M’s S.8 Charter right infringed?

JUDGEMENT The appeal of the s. 8 Charter issue should be dismissed

PRINCIPLE Did officer’s conduct constitute search under S.8 of Charter?

The officer’s action of pushing the door open further constituted a “search” for purposes of s. 8 of the Charter.  The action went
beyond the implied licence to knock on the door and constituted an invasion of M’s reasonable expectation of privacy in his
home. 
Although the officer’s action constituted a search for s. 8 purposes, that search was reasonable because both stages of the
NOTES Waterfield test were satisfied. 
From Waterfield test:
judgement (iii) does conduct fall within general scope of duty imposed by statute or common law- (yes, common law police duty
to protect life and safety)
(iv) whether such conduct involves non-justifiable use of powers associated with that duty (yes, search constitutes a
justifiable exercise of powers associated with the duty)

ARREST AND BAIL

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 R. v. Hall, S.C.C. (2002)
David Scott Hall was charged with the murder of a woman in a high-profile case. He applied for bail pending trial. The judge
denied the application—not for reasons of ensuring appearance in court or protecting the public—but in order "to maintain
FACTS confidence in the administration of justice". Paragraph 515(10)(c) of the Criminal Code allows the denial of bail for this reason.
Hall appealed the decision on the basis that section 515(10)(c) violated the right "not to be denied reasonable bail without just
cause" under section 11(e) of the Charter.
ISSUE Did S. 515(10)(c) CC violate Charter right 11(e)?

JUDGEMENT Appeal dismissed

Part of S. 515(10)(c) declared unconstitutionalstarr, other part declared valid.
• Fundamental principle of justice that person cannot be detained by virtue of vague legal provision, Parliament must
lay out narrow and precise circumstances in which bail can be denied.

• S.11(e) Charter guarantees right not to be denied reasonable bail without just cause.
NOTES
From • Portion of s.515(10)(c) permitting detention “on any other just cause being shown” unconstitutional as open-ended
judgement judicial discretion to refuse bail;
• Phrase “without limiting the generality of the foregoing” also void for vagueness;
• But phrase “to maintain confidence in the administration of justice” valid – provides basis for denying bail not covered
by subs.(10)(a) and (b), essential that a means of denying bail be available because public confidence essential to
proper functioning of bail system, justice system as a whole.

DISCLOSURE

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 R v Stinchcombe, [1991] 3 S.C.R. 326
Accused was a lawyer charged with breach of trust, theft fraud. His former secretary was defence witness and gave favorable
evidence for him, at prelim enquiry. After that and before trial RCMP official taped her interview. During trial, Crown took her
written statements. Defence counsel was told about the existence of tape and statement but not told about the content. His
FACTS request for disclosure denied.
During trial defence counsel learnt that the witness would not be called upon. He brought an order that witness be called or
Crown disclose contents of statements. Trial judge dismissed application. Trial proceeded, accused charged with breach of
trust and fraud. Stay on theft charges. Appeal court upheld convictions.
ISSUE Is disclosure at discretion of crown?

JUDGEMENT Appeal allowed. New trial ordered.

PRINCIPLE Crown has a legal duty to disclose all relevant information to defence.
• crown has legal duty to disclose all relevant information to defense – fruits of investigation in possession of crown
not property of crown for use in securing conviction but property of public to be used to ensure justice is done; s.7
Charter right to full answer and defence
• Obligation to disclose subject to discretion as to withholding information and timing, manner of disclosure, eg.,
crown has duty to respect rules of privilege, protect identity of informers (paras 18-21)
• Discretion of crown also to be exercised as to relevance of information
NOTES
• Crown’s discretion reviewable by trial judge – to be guided by general principle that information should not be
From
withheld if there is reasonable possibility it will impair right of accused to make full answer and defence – absolute
judgement
withholding of information which is relevant to defence can only be justified on basis of existence of legal privilege
which excludes information from disclosure – accused to bring to attention of judge at earliest opportunity (para 22-
23)
• Initial disclosure to occur before accused called upon to elect mode of trial or plead -subject to crown’s discretion, all
relevant information must be disclosed, whether crown intends to introduce it into evidence, and whether evidence
inculpatory or exculpatory (para 28)

Page | 81
 R v O’Connor, [1995] 4 S.C.R. 411
3rd Party Disclosure- Production

Accused was charged with several counts of sexual assault. He obtained pre-trial order for disclosure of the complainants’
FACTS entire medical, counselling and school records. When accused was unsuccessful in obtaining all these records, trial judge
entered a stay.
ISSUE What is the procedure to be applied when accused seeks documents in the hand of third party?
The Court held that the medical and counselling records of a complainant in a sexual assault case that are held by a third
party can be disclosed by order of the judge if they meet two requirements.
(i) The applicant must establish, without seeing them, that the records are likely to be relevant to the case. (relevant
but not paramount condition)
(ii) The judge must review the records and decide whether to disclose them based on the balancing the right to
make full answer and defence, and the right to privacy. (additional factors)
NOTES
Where trial judge decides whether to order the record or any portion of it, a number of factors should be considered:
From
(a) Extent to which record is essential to make full answer and defence by accused;
judgement
(b) Probative value of record;
(c) Nature and extent of reasonable expectation of privacy in records;
(d) Whether production would be based on any discriminatory belief or bias;
(e) Potential prejudice to complainant’s dignity, privacy or security

R v McNeil 2009 SCC 3

Accused charged on drug related charges. Arresting police officer had disciplinary and criminal investigations against him on
FACTS drug bust issues. The records in issue were the police disciplinary records and criminal investigation files relating to the said
police witness.
ISSUE What is the role of police in disclosure by Crown?
NOTES - Crown has disclosure obligation of records in its possession; police must disclose information to Crown relating to
From investigation of accused, including misconduct by investigating officer at disciplinary hearing or criminal charges, so
judgement they form part of 1st party disclosure.

- Court lists 5 types of records that fall under this category (Ferguson Five list)
(i) Conviction of guilt u/Criminal Code (CC) or Controlled drugs substances act (CDSA), for which no pardon is
granted;

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 (ii) Outstanding charges under CC or CDSA
(iii) Conviction or finding of guilt under any other Federal or Provincial statute
(iv) Finding gilt for misconduct under Police Service Act;
(v) Current charge of misconduct under Police Service Act for which Notice of Hearing has been issued.
- Records like these need to be provided by Crown without prompting (though concerned officer needs to be given
notice of intention to disclose)

- Records not so related and in possession of third parties subject to Code third party record regime, s.278.1, or
common law test; must meet likely relevance test, if so to be produced to court for inspection, then second stage of
test where court balances privacy interests of third party with accused’s right to make full answer and defence

PRELIMINARY ENQUIRY

R v Acuri [2001] 2 S.C.R. 828

The accused was charged with first degree murder.  At the preliminary inquiry, the Crown’s case was entirely circumstantial
and the accused called two witnesses whose testimony was arguably exculpatory.  The preliminary inquiry judge rejected the
FACTS accused’s contention that he must weigh the evidence and, after viewing the evidence as a whole, determined that the
accused should be committed to trial for second degree murder.  The accused’s certiorari application was dismissed and that
decision was affirmed by the Court of Appeal. 
Whether the preliminary inquiry judge, in determining whether the evidence was sufficient to commit the accused to trial,
ISSUE
erred in refusing to weigh the Crown’s evidence against the allegedly exculpatory direct evidence adduced by the accused. 

JUDGEMENT Appeal dismissed

The question to be asked by a preliminary inquiry judge under s. 548 of the Criminal Code is whether there is any evidence
PRINCIPLE
upon which a reasonable jury properly instructed could return a verdict of guilty. 
In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts.  Nor does she
NOTES assess credibility.  Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be
From reasonable for a properly instructed jury to infer guilt.  This task of limited weighing never requires consideration of the
judgement inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the
inferences to be drawn from the circumstantial evidence. 

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JURY TRIAL

R v Williams [1998] 1 S.C.R. 1128

The accused, an aboriginal, pleaded not guilty to a robbery charge and elected a trial by judge and jury.   The trial judge at the
first trial allowed questions to be put to potential jurors but the Crown successfully applied for a mistrial on the basis of
procedural errors and the “unfortunate publicity” of the jury selection process.  At the second trial, the judge who heard the
accused’s motion for an order permitting him to challenge jurors for cause dismissed the motion.   The judge who presided at
FACTS
the trial dismissed a renewed application and did not warn the jury, either in his opening or closing addresses, to be aware of
or to disregard any bias or prejudice that they might feel towards the accused as a native person.   The Court of Appeal
dismissed an appeal from conviction.  The courts below accepted that there was widespread prejudice against aboriginal
people in the community.
ISSUE Whether the evidence of widespread bias against aboriginal people in the community raises a realistic potential of partiality

JUDGEMENT Accused’s appeal allowed

PRINCIPLE challenge based on racial prejudice do not require accused to present evidence (para 35)
3 types of juror prejudice:
- Interest prejudice: juror has interest in case or one of the parties;
- Specific prejudice: attitude or beliefs arising from personal knowledge of case, mass media, public discussion or
NOTES
rumors
From
- Generic prejudice (issue in this case): stereotypical attitudes about parties or crime itself- bias against racial or ethnic
judgement
group or persons charges with sex abuse.
It is impossible for accused to evidence that jurors will be unable to set aside their prejudice. Racial prejudice is at community
level and impossible for jurors to set aside their prejudice.

R v Find 2001 SCC 32

The accused was charged with 21 counts of sexual offences involving complainants ranging between 6 and 12 years of age at
the time of the alleged offences. Prior to jury selection, he applied to challenge potential jurors for cause, arguing that the
nature of the charges against him gave rise to a realistic possibility that some jurors might be unable to try the case against
FACTS
him impartially and solely on the evidence before them.  The trial judge rejected the application.  The accused was tried and
convicted on 17 of the 21 counts.  The majority of the Court of Appeal dismissed the accused’s appeal, upholding the trial
judge’s ruling not to permit the accused to challenge prospective jurors for cause.

Page | 84
 The appeal should be dismissed.  The nature of the charges against the accused did not give rise to the right to challenge
JUDGEMENT
prospective jurors for cause on the ground of partiality.
Absent proof, it cannot be simply assumed that strong beliefs and emotions translate into a realistic potential for partiality,
PRINCIPLE
granting right to challenge for cause

NOTES Many criminal trials involve strong views and can stir up powerful emotions including revulsion and revulsion. This is the
From nature of trial process. However, there needs to be evidence that strong emotions and believes can translate into realistic
judgement potential for partiality, giving rise to challenge for cause.

R v YUMNU, 2012 SCC 73

Appellants were convicted of murder and conspiracy of murder.  They discovered that crown attorney, through police, did
‘jury vetting’- to see if any jury member had criminal record. None of this told to appellants during trial.
FACTS The Court of Appeal dismissed all three appeals.  Court did declare on issue of ‘jury vetting’ that Crown had failed to disclose
information obtained from the jury vetting process that might have assisted the appellants in the exercise of their
peremptory challenges, but it was not satisfied that the appellants suffered any prejudice from such failure. 
ISSUE Did failure to disclose cause actual unfairness or did ‘jury vetting’ create appearance of unfairness?

JUDGEMENT Appeal dismissed

Authorities are entitled to conduct record checks of potential jury members, till the time it does not impact fairness
PRINCIPLE
of trial.
• Juror eligibility under CC and Provincial statues may render jurors with criminal record to be disqualified or result in
his/her being removed for cause.
NOTES
• Authorities entitled to conduct record checks on potential jury members to see if eligible for jury duty or for basis to
From
bring challenge for cause,
judgement
• But defense should have been provided with information as part of Crown’s disclosure obligation –
• Jury selection or fairness of trial not impacted however

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SENTENCING

R v Nasogaluak [2010] 1 S.C.R 206

Police received a tip about an intoxicated driver which led to a high speed pursuit of Nasogaluak. While being arrested, he
was physically beaten up by officers, leading to punctured lung. His breath alcohol was above legal limit. Police did not
report their beating him up. He told the officers he was hurt and told them he could not breathe. He was released the
following morning and checked himself into a hospital. He was found to have suffered broken ribs and a collapsed lung that
required emergency surgery.
FACTS At trial, N entered a guilty plea to charges of impaired driving and flight from police. At sentencing, the trial judge held that
the police had used excessive force in arresting the accused and breached his rights under s.7 of the Charter. As a remedy
under s.24(1) of the Charter, he reduced the accused's sentence and ordered a 12-month conditional discharge on each count,
served concurrently, with a one-year driving prohibition. The Court of Appeal held that a sentencing judge has no discretion
to reduce a sentence below a statutorily mandated minimum sentence and ordered the minimum fine for a first offence
mandated by s.255(1) of the Criminal Code.
Is the imposition of a reduced sentence for the commission of a criminal offence an available and appropriate remedy for the
ISSUE
breach of an offender's Charter rights?

JUDGEMENT Appeal dismissed

PRINCIPLE Proportionality is central to sentencing

NOTES proportionality central to sentencing process; sentencing judge has wide discretion, but constrained by Code provisions and
From determining what is fit sentence for offence and circumstances of offence – Charter breach may be appropriate to consider as
judgement factor on sentencing, in exceptional circumstances sentence might be reduced as result as remedy under s.24(1) Charter

R v C.A.M, [1996] 1 S.C.R 206

Accused pleaded guilty to a number of sexual, physical and emotional abuse of his children. None of the offences carried life
imprisonment. Judge gave him cumulative 25 years. Corut of appeal reduced it to 18 years 8 months. (logic: where life term
FACTS
not available as penalty, totality principle requires judge to limit fixed term cumulative sentences to 20 yrs imprisonment,
absent special circumstances)
ISSUE What term should be upheld?

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JUDGEMENT 25 yrs term upheld

PRINCIPLE Retribution and denunciation principles of sentencing

• Retribution important principle of sentencing, not the same as “vengeance”, means punishment advances deterrence
and rehabilitation considerations as well as moral culpability of offender – requires imposition of just and
appropriate punishment, nothing more (paras 79-80);
NOTES
• (para.81)
From
• judicial sentence to properly reflect moral blameworthiness of particular offender
judgement
• Denunciation is also an important principle
• Society must show abhorrence towards certain offences and the only to do so is through sentences passed by courts
• A sentence which expresses denunciation is simply the means by which these values are communicated.

R v Gladue [1999] 1 S.C.R. 688

G stabbed fiancé in heart. Drunk at time. Had been in fight earlier that night. During time before trial she moved back in with
her father. Went back to school. Began drug and alcohol counseling. No mention was given about her being an Aboriginal
FACTS Offender at trial.
Trial judge concluded that offence is a serious one where apt sentence would be 3 years. Court of appeal dismissed accused’s
appeal.
Should s.718.2(e) be understood as being remedial in nature? – should they use different framework when sentencing
ISSUE
Aboriginal peoples.

JUDGEMENT Appeal dismissed

PRINCIPLE Judges should look at systemic factors when sentencing Aboriginal Offenders
NOTES Summary of principles for sentencing aboriginal offenders (para. 93):
From • CC s.718.2(e) requires courts to consider all available sanctions other than jail, pay particular attention to
judgement circumstances of aboriginal offenders
• S.718.2(e) remedial in nature, to be used to address problem of overrepresentation of aboriginals in jail, promote use
of restorative justice
• All of principles and factors set out under Part XXIII to be considered on sentencing, attention to be paid to new
emphasis on decreasing use of jail
• Sentencing individual process, court must consider what is fit sentence, but s.718.2(e) directs courts to alter method
of analysis when determining what is fit sentence for aboriginal offender, eg., consider what systemic or background
factors may have played role in offence; judicial notice may be taken of systemic and background factors affecting

Page | 87
 aboriginals
• S.718.2(e) not to be taken as means of automatically reducing prison sentence for aboriginals or imposing more
lenient sentence, although jail term may be shorter in some cases for same offence for non-aboriginal offender

R v Ferguson 2008 SCC 6

During an altercation with detainee held in a cell, RCMP officer shot and killed detainee. Charged with lesser offence of
manslaughter with firearm. Minimum mandatory sentence of 4 yrs is imposed by S 236(a)CC but the trial judge imposed
FACTS conditional sentence of 2 yrs less a day. Reasoning was that circumstances in this case, minimum mandatory sentence
constituted cruel and unusual punishment u/s 12 charter. Court of appeal overturned sentence and imposed mandatory
minimum.
ISSUE Does minimum sentence of 4 yrs constitute charter violation?

JUDGEMENT Appeal dismissed. No charter violation.

Constitutional exemptions of S. 12 (cruel and unusual punishment) should not be recognised as remedy for law
PRINCIPLE
prescribing minimum sentence
• Mandatory minimum 4 year sentence for manslaughter with firearm not cruel or unusual punishment, s.236(a) Code
• Issue in case was whether sentence should be more than 4 years, or whether facts of case such that 4 year sentence
NOTES
would be grossly disproportionate – on facts of case was not cruel or unusual punishment
From
• In any event constitutional exemption not appropriate remedy for Charter s.12 violation – if law imposing minimum
judgement
sentence is unconstitutional on facts of particular case, it should be declared inconsistent with Charter and hence of
no force or effect under s.52 of Constitution Act, 1982.

R v Morrisey, 2000 SCC 6

Accused accidently killed the victim. No evidence that he intended to kill him. He pleaded guilty to criminal negligence
causing death. Spent 5 months in pre-trial custody. Trial judge found that 4 yr minimum sentence u/s 220(a) CC violated S.12
FACTS
of Charter. Accused sentenced to 2 yrs plus one year (for unlawfully pointing firearm). Court of appeal imposed 4 yr sentence
without credit for pre-trial custody.
ISSUE

JUDGEMENT Appeal dismissed for all counts but one. Accused’s time spent in pre-trial custody given credit towards sentencing.

In applying S.12 charter, court must be satisfied that the punishment imposed is grossly disproportionate for offender such
PRINCIPLE
that Canadians would find the punishment abhorrent or intolerable

Page | 88
 • criminal negligence causing death with firearm minimum 4 year sentence not cruel or unusual punishment, s.220(a)
Code
• Section 12 Charter provides broad protection to Canadians against punishment which is so excessive as to outrage
society’s sense of decency – court must be satisfied that the punishment imposed is grossly disproportionate for
NOTES
offender such that Canadians would find the punishment abhorrent or intolerable;
From
• in assessing whether sentence is grossly disproportionate, court must first consider gravity of offence, personal
judgement
characteristics of offender and particular circumstances of case to determine what range of sentences would have
been appropriate
• If sentence is grossly disproportionate for individual offender, court proceeds to analyze whether infringement of
s.12 can be justified under s.1 of Charter

R v Pham, 2013 SCC 15

Accused non-citizen of Canada convicted of drug related offences. Court imposed 2 yrs sentence. Under immigration act, non-
citizens that get 2 yrs or more were deported (now changed to 6 months). Neither party raised the issue of collateral
FACTS
consequences at sentencing.
Appeal court dismissed the appeal and refused to alter sentence.
JUDGEMENT Appeal allowed. Sentence reduced to 2 years less a day.

PRINCIPLE Collateral consequences of sentencing

NOTES • Proportionality is fundamental principle of sentencing, collateral consequences (immigration) may be taken into
From account so long as part of proportionality.
judgement • If offence not too grave for sentencing judge to reject lower sentence.

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