General Overview and Preliminary Matters 11/1/2013 5:22 PM

Sources: Constitution > Statute > judge made common law

Any limit of constitutional right must be either demonstrably justified under section 1 of

Charter or enacted notwithstanding the freedoms and rights

Frey v. Fedoruk et al. [1950] S.C.R. 517 is a decision by the Supreme Court of Canada on the definition

of a breach of the peace and whether being a "peeping tom" is a crime. The Court found that actions do

not necessarily breach the peace just because they cause violent reactions. Due to this finding, courts

would have less say in determining what is criminal as a breach of the peace, and the Parliament of

Canada would have more.

As Cartwright said, "I think that if any course of conduct is now to be declared criminal, which has not up

to the present time been so regarded, such declaration should be made by Parliament and not by the

Courts.

R v Jobidon - Jobidon killed a man named Haggart, who was celebrating his bachelor party, in a fistfight

outside of a hotel bar. The men had fought inside the bar, but had been kicked out and continued fighting

outside. Although Haggart was bigger, and trained as a boxer, Jobidon landed one punch directly in

Haggart's face, which knocked him unconscious and he fell on a hood of a car. Jobidon then punched him

four times in the face. Haggart was in a coma and died after being taken to the hospital. Jobidon stated

that he did not know that Haggart was unconscious when he continued to hit him as it all happened so

fast. Both men had consented to the fight. The appellant was acquitted at trial but convicted upon appeal.

The court does not accept this; they cite s.14 of the   Code , which states that you cannot consent to the

imposition of death, and therefore this type of assault was not consented to. They also state that to allow

an acquittal is contrary to public policy because Parliament wants to eliminate senseless fighting in

society. Not only can you not consent to death, you cannot consent to very violent forms of force that

clearly extend beyond the ordinary norms of conduct in the circumstances.

Sopinka, in the minority, takes issue with what he sees as the majority's attempt to create an offence

where one does not exist in the Code by applying the common law; intentional application of force with

the consent of the victim.

 

Rationale: Common law cannot be used to create offences b/c:

(1) principle of legality, and;

(2) the notion that criminal offences should be clear, certain, and should pre-exist the act being

prosecuted

 

Exception:

Levis (City) v. Tetrault [2006]: Example of where a defence was upheld in thecommon law. The

common law is still capable of raising defences to crimes. Here, the defenceof µofficially induced error¶

was upheld by the SCC.

Facts: 2 parties charged w/ operating motor vehicles w/out paying registration fees. One party raised the

defence of µofficially induced error.

Offence: Operating a motor vehicle w/out proper registration

Ratio: Officially induced error is an exception to the rule that ignorance of the law (s.19 CC) is no

defence. It is created by the common law and must meet a number of criteria for the court to apply it.

Held: Ignorance of the law is no defence. However, Court acknowledged that the inflexibility of the rule

did raise a concern where the error of accused arose out of anerror of a government official or the State.

Therefore, in affirming the decision in Jorgensen the court confirmed that the defence of µofficially

induced error was an exception to the rule that ignorance of the law is no defence (in strict liability

offences).The defence itself only allows for a stay, not an acquittal and must be proved on a balance of

probabilities. The Common law can deeply influence the way that statutory criminal offences are

interpreted

Both the Federal Government and Provincial governments have jurisdiction to create non-criminal

offences (regulatory offences) and to use jail to enforce those regulatory offences, but only the Federal

Government can create “criminal” offences, or “true crimes”, pursuant to its powers under s. 91 (27) of the

Constitution Act, 1867. Canadian provinces do have jurisdiction over the administration of justice within

the province under s. 92(15) of the Constitution Act, 1867. For example, the provinces have set up the

lowest level of criminal court where the vast majority of cases are actually prosecuted. in keeping with

principles of fundamental justice

7. Everyone has the right to life, liberty and security of the person and the right not to be

deprived thereof except in accordance with the principles of fundamental justice [substantive

fairness]

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the

offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing

by an independent and impartial tribunal;

[ procedural fairness]

Not all Federal Laws are enacted in keeping with powers but are allowed – e.g. federal laws regulating

the detention of the criminally insane; Parliament’s law power in advertising of tobacco, prohibiting

marijuana possession

Provincial attempts at prohibiting use of streets for prostitution, abortions have been struck down as

infringing federal law power i.e. is prime purpose to punish? Strike down; if purpose is to respond to

conditions that cause crime? Allowed even if federal version exists e.g. R v Banks (law against soliciting

from people in a parked vehicle); R v Dyck (registration of sexual offenders with police)

Province have jurisdiction over those sentenced to <2 years and federal governments to more than that.

R v Malmo-Levine - The federal criminal law power is “plenary in nature” and has been broadly

construed – suppress evil and safeguard interests. For a law to be classified as a criminal law, it must

possess three prerequisites:  a valid criminal law purpose backed by a prohibition and a penalty 

(Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, at para. 27).  The criminal power

extends to those laws that are designed to promote public peace, safety, order, health or other legitimate

public purpose. the protection of vulnerable groups has also been upheld under s. 1 as a valid federal

objective of the exercise of the criminal law power.  In R. v. Keegstra, [1995] 2 S.C.R. 381, we held that

the restrictions on free speech imposed by the hate speech provision in the Criminal Code was a

justifiable limit under s. 1 because of potential attacks on minorities. The protection of the chronic users

identified by the trial judge, and adolescents who may not yet have become chronic users, but who have

the potential to do so, is a valid criminal law objective. Butler held, at p. 504, that if there is a reasoned

apprehension of harm Parliament is entitled to act, and in our view Parliament is also entitled to act on

reasoned apprehension of harm even if on some points “the jury is still out”.

Assault – bodily integrity ; Theft – property ; firearms – prevent risky conduct; drugs – prevent harm and

standards of socially acceptable behavior designed to denounce and punish inherently wrong behavior

and deter risky behavior; Courts consider – rehabilitation, incapacitation, reparation for victim and

community

Regulatory offences – purpose is to deter risky behavior and prevent harm

Trial and Trial Courts Provincial court judges (in magistrates courts) cannot sit with a jury & summary

convictions and provincial offences can only be punished by up t 6 months in prison or 2000 in fines;

offences such a sexual assault if prosecuted by summary can be up to 18 months in prison

“Hybrid Offences” if elect to prosecute as summary, accused not entitled to preliminary inquiry or jury trial

but maximum punishment is limited

Those under 18 are prosecuted in Youth Court (provincial court)

Only federally appointed superior court judges can sit with a jury in the Superior Court, Supreme Court or

Queen’s Bench. Murder must be tried in Superior Court

Appeals and Appellate Courts 3 or 5 judges Appeal grounds 1) conviction unreasonable and cannot be

supported by evidence 2) conviction a miscarriage of justice 3) trial judge made an error of law (appeal on

this ground can be denied if no substantial wrong or miscarriage of justice )

Supreme Court has nine judges- question of law or any mater of law of national importance.

Canadian Charter of Rights and Freedoms – “subject to s. 1, the “reasonable limitations” clause, and

the seldom-used s. 33 “notwithstanding clause.” Section 52 of the Charter can be used by courts to

invalidate offences that Parliament has created.

S24 – provides remedies for Charter violations

Division of Powers and Charter Compared Sunday Closing laws requiring a “rest day” allowed under

s1. But later repealed due to public opinion

Protected rights:

A) Search and seizure – s 8 – reasonable expectations of privacy contextual e.g. dog searches invade

privacy of students (R v AM); use of technology to detect heat arising from homes for drug enforcement

allowed as technology does not permit inferences about precise activity (r v tessling); garbage searches

allowed ( r v Patrick)

Only those that operate in regulatory context have diminished privacy. Others need warrants unless there

is imminent danger that evidence will be destroyed or someone harmed. Searches incident to an arrest

are allowed but do not include DNA. There needs to be reasonable and probable grounds for concluding

that a strip search is necessary ( R V Golden). Searches must be authorized by reasonable law (R v

Collins). Wearing a wire without a warrant violates was followed by enactments that allowed judges to

issue warrants and also authorizing the us of wires without warrants in urgent situations and to prevent

bodily harm (Duarte). Evidence is not automatically excluded- judges apply a three part test that

examines violation seriousness, impact of violation on Charter interests and society’s interests in

adjudication on the merits. Keep in mind repute of administration of justice and good faith behavior.

B) Arbitrary Detention and Imprisonment – s9 – R v Grant – Police stops saved by s 1 if done for traffic

safety (Hufsky). Not detained in emergencies or accidents or if merely asked name (Grant). Reasonable

suspicion allows by investigative detention that is not arbitrary. If violated, same recourses but see Grant

where evidence not excluded. Court can reduce the accused’s sentence in response to a violation. A

detained person allowed to seek habea corpus under 10(c). [11(e)]. “Any just cause” provision allowed

because maintenance of confidence in the administration of justice was a legitimate object of the bail

system [ Dissent in R v Hall regarding similar vagueness of provision]

C) Right to Counsel – s 10(b) – Roadside detention saved by s1 on grounds of traffic safety (R v

Thomsen); No requirement of present counsel on questioning once counsel put forth ; waiver able right ;

Can be excluded but not automatic

S10(a) requires accused to be informed of reason for arrest or detention; Right was violated when

accused believed detention for drugs and not murder (Evans); right to silence less so in regulatory and

terrorism contexts

D) Entrapment – R v Mack 1988 – allowed defence of entrapment and must be established by accused

on a BOP with the judge deciding whether it has been made out as they are the best to determine

whether the activities bring administration of justice into disrepute [ inducing the commission of a crime] In

Mack, reasonable suspicion to conduct the drug sting allowed due the accused’s convictions. In Barnes,

despite no reasonable suspicion due to general and subjective presumptions, entrapment not allowed as

police was acting to a bona fide inquiry into criminal activity by offering a person opportunity to commit a

crime because they were at a particular place; Must examine proportionality of state conduct.

Charter and Criminal Trial Process –

A) Disclosure – all evidence ; prosecution can delay disclosure for legitimate reasons like protection of

informers; SC ordered medical and therapeutic records to be disclosed regardless of privacy and equality

in a sexual assault trial (R v Carosella) legislation later enacted restricting accused’s access to

personal records of complainant in sexual assault trials.; Can award costs or new trials as remedies of

violations

B) Right to Full Answer and Defence – Parliament – s.276 in relation sexual assault and disclosure of

sexual reputation of complainant in relation to mistaken belief in consent defence. [ held consistent with

accused’s rights in R v Darrach]

C) Trial in a Reasonable Time – 11(b) after charge, if not complied with than stay of proceedings

depends on length of time (8-10 months or more), explanation of delay, waiver of rights by consenting to

delay, suffering prejudice

D) Pre-Trial Publicity – CC provides for mandatory publication bans at accused’s request allowed as

reasonable limit of F of expression; must consider alternatives in discretionary situations and balance the

various interests

E) Right to a Jury Trial – 5 years or more has right to jury trial under 11(f) can be denied upon failure to

show up; Selecting the jury – can challenge prospective juror for cause – e.g. racial bias; the last two

jurors called determine impartiality

F) Right to be presumed Innocent – (i) BARD- derived from evidence or a lack of evidence closer to

absolute certainty than BOP

(ii) The substitution of one element for an essential element of the offence violates 11(d) unless if upon

proof of RD of the substituted element it would be unreasonable for the trier of fact not be satisfied BARD

of the essential element [Oakes on persuasive burdens[

(iii) presumption applies to elements of offences, collateral factors and defences – subsequent To Whyte,

the Court held that requiring an accused to prove a defence on a BOP violates 11(D) because it allows a

conviction despite RD about a factor essential for a conviction. must have a compelling objective; Still

however, exists e.g. in the defence of automatism

iv) Evidential Burdens and Mandatory Presumptions – violates 11(d) – R v Downey – the provision that

required the trier of fact to conclude in absence of evidence to the contrary that an accused was guilty of

living off the avils of prostitution allowed under s(1) due to the lack of testifying prostitutes against their

pimps and the ease in which an accused to establish and prove a relationship with the prostitute

v) Threshold “Air of Reality” Tests – automatism and extreme intoxication

Charter and Substantial Criminal Offences and Defences –

A) Fundamental freedoms – s 2(b) – freedom of expression ; e.g. solicitation for prostitution is a violation

but saved but s 1; similarly child pornography; prohibition on willful promotion of hatred against and

identifiable group

B) Principles of Fundamental Justice – s 7 ; e.g. R v Morgantaler – offence where abortion was done or

provided without the consent and approval of a hospital committee violated s 7 – procedurally unfair

because of geographic differences in availability of committees; Rodriguez v BC – assisted suicide was

prohibited and did not violate fundamental justice

Test : Does the principle constitute a 1) legal principle 2) there must be consensus that the rule or

principle is fundamental to the way the legal system ought fairly to operate and 3) the rule or principle

must be identified with sufficient precision to constitute a manageable standard to measure the

deprivations [rules out harm principle but allows youth’s lessened culpability]

C) arbitrariness and disproportionality – Malmo-Levine – marijuana offence upheld (two judges dissented

it as being disproportionate] – not very willing to strike down ; AG v Bedford “bawdy house” and “living off

the avails” were disp. And overbroad but were balanced and allowed

D) Moral Innocence and Absolute Liability – R v Hess – stat rape of girl under 14 was violation when they

had no mens rea – replaced by legislation

E) Negligence – does not violate s7 in Creighton (manslaughter) as less serious than murder and does

not have a similar stigma s7 not violated so long as 1) mens rea and available penalties reflect nature

of crime and stigma 2) punishment proportionate to moral blameworthiness and 3) those who harm

intentionally punished more severely than unintentionally

F) lack of correspondence between actus reus and mens rea not a s7 violation – Creighton

G) Defences – use of reasonable force to correct child or pupil s 43 of CC does not violate s 7

H) Moral Involuntariness – r v ruzic

R v. Heywood [1994] SCC-Example of where the Courts have struck down a criminal offence

Facts: A man, who had previously been convicted of sexually assaulting children, was arrested for

loitering at or near a playground. This was an offence of vagrancy under s.179(1) (b) CC. He had been

spotted several times near the playground with a camera with a telephoto lens, which he took photos of

children with. Heywood argued that the law violated his s. 7 (liberty), 11(d) (presumption of innocence), 12

and 15 Charter rights. Court found a violation of 7 and11(d) which could not be justified under s. 1.

Offence: s. 179(1)(b) crime of vagrancy

Held: Section 179 was overboard and therefore violated s. 7 Charter and could not be saved by s. 1. The

case turned on the interpretation of the word loiters. The court found that the interpretation of this word

violated the principles of fundamental justice as it was more restrictive than necessary and was applied

too broadly. This is because it applied without prior notice to the accused that it applies to too many

places, to too many people and for an indefinite period of time with no possibility of review.

Over breadth Analysis looks at the means chosen by the state in relation to its purpose. A court must

consider whether those means are necessary to achieve the state objective. if greater, against

fundamental justice

R. v. Oakes – Facts: Oakes was found with eight one-gram vials of hash oil and $619.45. He claims that

he had had ten vials for his own use, and that the money was leftover from his worker’s compensation

cheque. He was charged with "possession of drugs for the purposes of trafficking" under s.8 of

the Narcotic Control Act. The section stated that a person was presumed to be in possession for the

purposes of trafficking unless the accused can "establish" (prove on a balance of probabilities) that they

were not in possession for this purpose.

Issue: Provision instituted presumption of guilt – against s11(d)

Ratio: By Dickson: There are three rights inherent in s.11(d) of the   Charter :

(1)you must be proven guilty beyond a reasonable doubt;

(2) the Crown must bear the burden of proof; and

(3) criminal prosecutions must be carried out in accordance with lawful and procedural fairness.

Federally enacted statutes are still subject to the Charter, even though they are enacted by Parliament.

To test if a section is saved under s.1:

(1)the section must fulfill an objective related to concerns which are pressing and substantial in a free and

democratic society; and

(2)the means chosen must be reasonable and demonstrably justified.

Proportionality test: (1) the means must be fair and not arbitrary, designed to achieve the objective,

rationally connected to that objective, and the means should impair the right in question as little as

possible; (2) there must be proportionality—the more sever the deleterious effects of a measure, the more

important the objective must be.

If not saved, courts can strike down unconstitutional offence, terminate a prosecution through a stay in

proceedings or exclude relevant evidence obtained through the violation.

The Charter can also be used as in important interpretive tool. Even when it is not used to strike down a

provision, it is the practice of courts to permit constitutional values to influence the way statutes are

interpreted.

R. v. Labaye, [2005] 3 S.C.R. 728, 2005 SCC 80, was a decision by the Supreme Court of Canada on

criminal indecency. The decision upheld consensual group sex and swinging activities in a club and

alleged bawdy-houseas being consistent with personal autonomy and liberty.

In determining whether Mr. Labaye was truly guilty of owning a bawdy-house, the Court had to decide

whether the activities taking place within should be classified as indecent. At any rate, in R. v. Labaye, the

Court approved of the harm-only approach and wrote that "Harm or significant risk of harm is easier to

prove than a community standard" of decency. The Court went on to establish more guidelines as to how

to measure harm.

The Court wrote that what is indecent under the Criminal Code is what is contrary to principles

in constitutional or other important laws. The whole of society has beliefs on what it needs to operate; the

beliefs of individuals or certain political beliefs that something might be harmful is, in contrast, not enough.

Moreover, the harm in indecency must be serious. 

A lengthy dissent was written by Justices Michel Bastarache and Louis LeBel. The dissenting justices

criticized the majority's definition of indecency as "neither desirable nor workable," since it did not follow

certain precedent and discarded the "contextual analysis of the Canadian community standard of

tolerance". While harm is an important consideration, that does not mean Canadians would be able to

accept certain sexual conduct. Standards can be drawn upon "principles of social morality drawn from

legislation." Moreover, the importance given to harm in R. v. Butler was "adopted to fill a vacuum," to

connect past case law regarding community standards to views that some material encourages sexist

attitudes, and "it does not follow from Butler, Tremblay andMara that the courts must determine what the

community tolerates by reference to the degree of harm alone." In this particular case, the dissenting

justices believed that the screening out of people who did not want to see the sexual conduct was not

rigorous enough, and that "The community does not tolerate the performance of acts of this nature in a

place of business to which the public has easy access."

Classification of Offences

In Canada, criminal offences are divided into two general categories: “indictable offences” and “summary”

(or “summary conviction”) offences. Offences can be “hybrid” in the sense that the prosecutor has the

right to elect whether to treat the offence as “indictable” or “summary.” The classification of offences has

important implications for the penalties that are possible, and for the procedure that will be used, including

the mode of trial. For example, jury trials are not available for criminal offences prosecuted by summary

conviction and are also precluded for indictable offences listed in s.553 of the Code as being in the

absolute jurisdiction of provincial court judges. Summary offences have a limitation period of 6 months

while indictable offences have none.

Summary: information provincial court (sentencing 6mnths – 18mnths or $2000 max) – provincial jail

Indictable: information PI in Provincial indictment Trial in Superior Court – federal penitentiaries

Interpretation

Definitions - The Criminal Code has definitions for many of the terms used but they are not always easy

to locate. Section 2 contains definitions that apply throughout the Code. The Code is divided into Parts,

and at the beginning of each Part, there will be a definition section that applies solely to that Part.

Sometimes definitions are found in or around the relevant statutory provision to be interpreted.

Strict Construction - Historically, criminal statutes were interpreted strictly in favour of the liberty of the

accused. In other words, the accused would get the benefit of the doubt or ambiguity in matters of

interpretation. This principle continues to apply but has been heavily modified by the purposive

interpretation.

R. v. Pare - Ratio/Legal Principle:

- "while committing", as read in s. 214(5) of the criminal code, should not be read literally, as this does not

appear to be a reasonable reading of the words attributed to Parliament- Murder was part of the same

transaction and continuous sequence of events that a murder committed 2 minutes after assault is still

within the offence – no reasonable ambiguity

Facts:

- D is 17 years old

- D met a 7 year old boy

- Boy stated that he would tell his mother, at which point D threatened to kill him if he did

- D then held boy down for two minutes before strangling him with his hands and a shoelace, and hitting

him on the head several times with an oil filter

Reasoning:

- The literal meaning of could be determined either contextually or acontextually, and as such, they may

have one meaning when disembodied from the criminal code, but another meaning altogether when read

within the context of the scheme and purpose of the legislation. This latter is the meaning that needs to be

ascertained

R v Russell – takes it further and holds that the underlying offence could be committed against a third

party and not the person murdered calling Pare narrow and restrictive

Purposive Interpretation - Canadian law makes liberal use of purposive interpretation, in which the

language that is used in the provision being construed is interpreted harmoniously with the statute as a

whole, with the underlying purpose of the provision in mind so as to best accomplish its underlying

purpose, always bearing in mind that the limit on purposive interpretation is that damage cannot be done

to the language employed

Each version is equally authoritative, and ambiguities in one language can be clarified by the other.

Canadian Foundation for Children, Youth & the Law v. Canada (A.G.) (2004)

Rule: While s. 43 adversely affects children’s security of the person (s. 7), it does not offend a principle of

fundamental justice (s. 1—proportionality test); “reasonable corrective force” s. 43 is not unduly vague or

overbroad because the force must be for educative or corrective purposes (vagueness), and “reasonable

under the circumstances” is not broad because s. 43 will not impugn force that results in harm or the

prospect of harm; s. 43 is a qualified immunity applicable to parents, teachers, and those standing in the

shoes of parents in instances where they use reasonable corrective force on a child between the ages of

2 and 12.

Elements of a Criminal or Regulatory Offence11/1/2013 5:22 PM

The physical elements or actus reus of the offence (the act that must be performed or omission that is

proscribed, the circumstances or conditions in which the act must occur, and any consequence that must

be caused by the act); and

• The mental or mens rea elements of the offence.

In Canadian law, the mental elements normally describe the actual or “subjective” state of mind of the

accused (things such as intent, or planning and premeditation, , or knowledge, or willful blindness or

recklessness.). It is becoming increasingly common, however, to produce offences that have an objective

mens rea, such as negligence. Objective mens rea is determined not according to the state of mind of the

accused (the subject), but according to what a reasonable person in the position of the accused would

have known or foreseen.

ACTUS REUS

Act - R. v. J. (D.), (2002)

Issue: The appellant appeals forcible entry conviction.Rule: Forcible entry (CC s. 72) requires (1) entry

by the accused, (2) into property of another, (3) in a manner likely to cause a breach of the peace or

reasonable apprehension thereof.Analysis: The offence requires entry causing a breach of the peace

because of some interference with possession of the property by the rightful owner.Conclusion: Because

the appellant did not interfere with possession of the property nor did he breach the peace, the conviction

is set aside.

Acts Must be “Voluntary” or “Willed” – The act described by the offence must be “voluntary” in the

sense that it must be the willed act of the accused.

The “Act” of Possession - At times part of the actus reus for an offence has an inherent mental element

to it, as it does with the important element, common to many offences, of “possession.” This concept

demonstrates that the divide between the actus reus and mens rea is not always a solid one.

- R. v. York (2005)—law of manual possessionAlthough the appellant had (1) physical control of (2)

goods he knew were stolen, he did not (3) take custody of the objects willingly and (4) did not intend to

deprive the rightful owner of the goods.

- R. v. Marshall (1969)—concept of constructive joint possession.Rule: Knowledge and consent under

CC s. 4(3)(b) must co-exist with some measure of control over the subject matter.Conclusion: Although

the appellant had (1) knowledge that a narcotic was possessed by another person in the vehicle, he did

not have control over the drugs, not did he (3) consent to the drug’s possession.

- R v Terrence, [1983] 1 SCR 357 

Facts: 

Terrence goes for ride with another person in their stolen car. Terrence is in the passenger seat, while the

other person drives. There was no evidence to Terrence that it had been stolen.

Issue(s): 

What is necessary to meet the requirements of possession in s.4(3) of the Criminal Code (Canada)?

Ratio: 

In determining possession, per s.4(3) of the Criminal Code, there must be evidence of control to prove the

unlawful act.

Analysis: 

Terrence was not driving. He therefore did not meet the requirement of control.

Holding: 

Decision in favour of Terrence.

Comments: 

There are three types of possession defined in s 4(3)

1. Personal;

2. Constructive (e.g. illegal material in a locker; control over something); or

3. Joint (possession with someone else).

To be in possession, requires:

1. Knowledge of the criminality associated with the item;

2. Consent (per Marshall v R (1969)); and

3. Control (per R v Terrence (1983)).

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

In this case, the Supreme Court of Canada (SCC) dealt with what it means to “possess” pornography

under the Criminal Code of Canada (CCC).  A computer technician noticed links to child pornography

websites on the computer of the accused when installing high-speed Internet.  The Supreme Court

determined that the links did not amount to possession of child pornography.  The Court wrote, “in order

to commit the offence of possession (as opposed to the offence of accessing), one must knowingly

acquire the underlying data files and store them in a place under one’s control.” 

Consent as an Element of the Actus Reus - Often the question of absence of consent by the victim is

an important actus reus condition that must be present for offences to occur.

R. v. J.A. (2011)—Conscious consent.Rule: A person commits sexual assault if he touches another

person in a sexual way without her consent. Consent requires a conscious, operating mind, capable

of granting, revoking or withholding consent to each and every sexual act.Analysis: when the

complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity

that occurs. The complainant is not required to express her lack of consent for the actus reus to be

established. There cannot be advanced consent to sexual touching.

On May 27, 2007, J.A. and his long-term partner, K.D., began having consensual sexual activity together.

During the sexual activity, K.D. consented for J.A. to choke her as part of the sexual activity. K.D. lost

consciousness for approximately three minutes, and she understood this might happen when she

consented to being choked. While K.D. was unconscious, J.A. tied K.D. up and performed additional

sexual acts on her. In her testimony, K.D. was not clear whether she knew or consented to that sexual

activity J.A. performed on her while she was unconscious. After K.D. regained consciousness, she and

J.A. continued having consensual sexual activity. On July 11, 2007, K.D. made a complaint to the police,

saying that the activity was not consensual, although she later recanted her statement. J.A. was charged

with aggravated assault, sexual assault, attempting to render a person unconscious in order to sexually

assault them, and breaching a probation order.

In coming to their conclusion, the majority noted the following:

Consent in advance is not a defense, as a person must be able to withdraw their consent during the

sexual activity in question.

The rule only applies to consent in cases of sexual assault.

Although this may lead to an odd interpretation, such as one partner kissing the other partner while they

are asleep, the majority found that this was Parliament's intention, and it cannot be overruled without a

constitutional challenge. (See Canadian Charter of Rights and Freedoms#Interpretation and

enforcement.)

The dissent found a number of problems with the majority's interpretation:

It would deprive women of their freedom to engage in sexual activity that does not result in bodily harm.

It would mean that cohabiting partners, including spouses, risk having one partner commit a sexual

assault when that partner kisses or caresses their sleeping partner, even with that sleeping partner's prior

express consent.

The dissent found that absent a clear prohibition in the Criminal Code, a conscious person can consent in

advance to sexual activity to take place while they are unconscious, provided there is no bodily harm, and

provided the sexual activity did not go beyond what was agreed to.

R. v. Mabior – man having sex when HIV positive - people must now disclose their status before having

sexual relations that pose a “realistic possibility” of HIV transmission. But in the Court’s view, a “realistic

possibility” encompasses almost any risk, no matter how small.

Consent is judged by and is dependent on the subjective perceptions of the complainant even if they are

uncommunicated or unreasonable.

R v Cuerrier – the actions of the accused must be judged objectively to determine whether a reasonable

person would find them dishonest + a person had a duty to disclose if the failure presented a significant

risk of serious bodily harm (HIV positive status) + it must be proven that the complainant would have

refused to have unprotected sex if the accused’s HIV status was disclosed.

Coincidence of AR and MR – Fagan – simultaneous act approach or duty to rectify when creating a

dangerous situation

R v Meli – one transaction approach – kill and threw over cliff applied in R v Cooper where drunk man

strangled someone for 2 minutes but may have blacked out in between

Relationship between intoxication and general intent offences where becoming drunk fault replaces intent

in general intent offences Majewski

Negligence offences also do not have coincidence but are justified in prevent harm

Causation - Where the relevant offence prescribes a “consequence” that must occur before the offence is

complete, the Crown prosecutor must prove that the accused caused the consequence to occur, beyond

a reasonable doubt.

R. v. Williams [2003] - Williams began an 18-month relationship in June 1991 with a woman who was

eventually the complainant in this case. They had unprotected sex on numerous occasions. On 15

November 1991, Williams learned that he had recently tested positive for HIV. The complainant received

a negative test result a few days later. However, the Court acknowledged that at the time she was tested,

Williams may have already infected her and she may have been in the “window period” between infection.

After Williams learned of his positive diagnosis, he did not disclose to his partner either that he had been

tested for HIV or that he had tested positive. The relationship continued for another year and included

unprotected sex.

The Court of Appeal went on to analyse whether Williams was guilty of the offence of aggravated assault,

which further requires that the assault “endangers the life of the complainant”. It determined on the

evidence that the complainant might already have been infected through unprotected sex with Williams

before he learned he was HIV-positive. The Court therefore agreed that it could not be proved beyond a

reasonable doubt that William’s conduct, after learning he was HIV-positive, endangered her life through

the risk of HIV infection. – thus charged with attempted aggravated assault instead of aggravated assault.

R. v. Nette, [2001] - A 95 year-old widow was robbed and left hog tied in her room with a ligature around

her neck. Over a period of 48 hours she suffocated to death.  Doctor testified that a number of factors

contributed to Ls death. Arbour, writing for the majority, states that the Smithers test applies for all forms

of homicide and the additional test used in R v Harbottle applies in the case of first degree murder, rather

than to all forms of homicide. On the topic of jury instruction, she held that it is better to state the test

positively as a "significant" cause rather than negatively and that this is really the same concept as de

minimus, which they take to mean a cause that is "not insignificant". McLachlin, in the dissent, while

agreeing in the conclusion, has a serious problem with the changing of the phrasing in the jury instruction

from "not insignificant" to "significant". They say that this new test creates a much higher threshold of

causation than the Smithers test, and that there is more than a semantic difference between "significant",

"not insignificant", or "more than trivial".

Ratio: 

1. Did they commit murder – were they a significant contributing cause to death (Smithers).

2. If yes – decide if 1st or 2nd degree murder

3. Then look at whether they were a significant contributing cause or a substantial and integral part of

death (Harbottle)

4. If yes to second part then guilty of 1st degree murder (if it was planned and deliberate as well), if not

guilty of 2nd degree murder

Must show that they caused the death both on fact and law

→ Factual causation – inquiry about how the victim came to her death – medical, mechanical and

physical sense

→ Legal causation (imputable causation) – should the accused be held responsible in law for the death

that occurred give his level of involvement?

In determining whether and accused is guilty of 1st or 2nd degree murder

→ 1st step for trier of fact is to determine whether murder has been committed pursuant to ss.229 or 230

→ Then the next question is whether the offence should be classified as 1st or 2nd degree murder in

accordance with criteria set out in s.231 (considering Harbottle standard)

FACTUAL CAUSATION :

→ Mechanical connection - Test – But for (necessary)

LEGAL CAUSATION:

→ Degree of participation

⇒ Significant cause (de minimis) or

⇒ Substantial and integral part

→ Remoteness (people acting out of self defence don’t break chain of causation)

Smithers v Her Majesty The Queen, [1978] 1 SCR 506 

Facts: 

Hockey game. S challenged C. S punched C then kicked him very hard in stomach. C dies 5 min later.

Cause of death was aspiration due to vomiting. Dr at trial said that the kick very probably caused vomiting

and could have caused C to aspirate the vomit

Issue(s): 

Has the appellant committed homicide and whether such homicide was culpable for the reason that it was

caused by an unlawful act?

Ratio: 

Test for legal Causation – Contributing cause beyond the de minimis range, they can be said to have

legally caused to incident.

Even if death is unexpected and the physical reactions of the deceased unexpected, if the accused

intended to do grievous bodily harm to the deceased, that could be enough to show causation

Analysis: 

The answer to whether A caused B is a factual question

→ About actual mechanical link between accused and forbidden act

→ Expert evidence is admissible to establish factual cause

⇒ Purely diagnosis – do not require them to distinguish between what is a cause and what is a condition

It is no defence to manslaughter charge that the fatality was not anticipated or that death would not

ordinarily result from the unlawful act

Holding: 

Causation was proved

Comments: 

Causation requirement can be made out for the full extent of the unlawful consequence regardless of the

fact the complainant has a thin skull. But what about s 7 issues infringing fundamental justice? Approach

approved in r v cribbon as not infringing

R v Reid - (2003), 180 CCC (3d) 151 (NSCA) CB 352

Facts

Everyone was drunk

R & S got in a fight with M

S put M in a sleeper hold and R kicked him

M went unconscious

The kids immediately began an attempt at resuscitation

M was pronounced dead on arrival

Cause of death was aspiration of stomach contents induced by resuscitation

Issue

Does the resuscitation break the chain of causation?

Holding

Yes.

Reasons (Saunders JA)

Trial judge was not clear enough when instructing jury on intervening events

The resuscitation broke the chain of causation

Different from subsequent surgical intervention causing death (usually won’t break the chain) – rescue

attempt was by young bystanders who were drunk

Sleeper hold likely didn’t kill M, had they left him he would probably have come to

Judge should give jury examples of intervening acts (beaten unconscious in building, earthquake causes

building to collapse resulting in death)

Instructions

Was the act a significant contributing cause of death

Were there any intervening causes resulting in the death? Are you satisfied beyond a reasonable doubt

that the actions are so connected to the death that they can be said to have had a significant causal effect

which continued up to the time of death, without having been interrupted by some other act or event?

Ratio

Judge must be clear on intervening act. Actus reus must continue to have causal effect until death.

R. v. Maybin (M.L.) et al. 2012 SCC 24 

Criminal Law - Manslaughter - Causation

Brophy was at a pub, standing beside a pool table talking, when he moved one or two of the pool balls.

The pool-players, brothers Matthew and Timothy Maybin, repeatedly punched him in the face and head.

Timothy struck a blow that rendered Brophy unconscious. The pub’s bouncer, Gains, arrived on the scene

within seconds. Gains punched Brophy in the head, and carried him outside, leaving him on his back.

Brophy died later that afternoon. Medical cause of death was bleeding in the brain. The Maybin brothers

and Gains were charged with manslaughter.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. C97, acquitted all

three. The trial judge concluded that the Maybin brothers and Gains, acting independently, committed

separate assaults causing bodily harm. The trial judge also found that he was unable to determine

whether any or all of them had caused Brophy’s death. The Crown appealed, alleging that the trial judge

erred in law in analyzing the issue of causation; for that reason, there had to be a new trial.

The British Columbia Court of Appeal, Finch, C.J.B.C., dissenting, in a decision reported at 295 B.C.A.C.

298; 501 W.A.C. 298, allowed the appeal of the acquittal of the Maybin brothers and ordered a new trial.

Had the trial judge correctly applied the law as it related to causation, he could have concluded that the

brothers caused Brophy bodily harm in a situation where it was not unforeseeable that further non-trivial

harm would be caused by the actions of others. The court dismissed the appeal of the acquittal of Gains.

The Maybin brothers appealed.

The Supreme Court of Canada dismissed the appeal. The court agreed with the majority of the Court of

Appeal that in the circumstances of this case, it was open to the trial judge to find that the Maybin

brothers caused the death.

R v Talbot (2007 Ont CA) and Charter Note

CHARGE: Death

FACTS: Fight. Δ punches the victim, arguably in self defence. Victim falls back and fractures his skull.The

Δ then kicked him in the head while he was on the ground. He dies. Doctor testified that it was

the fractured skull from the fall that killed him.

ISSUE:Whether the Δ caused the death of the victim.

 HOLDING:

Not guilty–punch was self defence. Kick could not be proven to be a contributing cause of death.

REASONING:

Juries should be asked to deal with the legal and factual causation inquiries together. The jury is asked to

decide whether the accused actions significantly contributed to the victim’s death. A contributing cause is

one that exacerbates an existing fatal condition  –that was not found here. Cr

own could only suggest that the blow from the Δ let to some unquantifiable possibility that was less than

a likelihood that the kick exacerbated the internal head injuries.

RATIO: Expressed preference for the language of “significant contributing cause” but left open

Omissions - Some offences do not require a positive act by the accused. Rather, they can be committed

by a showing that the accused failed to act, or omitted to act. Whether an offence can occur by “omission”

is a question of construction. To be guilty by omission (1) the offence must contemplate guilt for

omissions, (2) the accused must be placed under a legal duty to act either by the provision charging him

or by some incorporated provision, and (3) the omission in question must be a failure to fulfill that legal

duty.

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

Facts: 

Officer said M ran light on bike. Tried to pull him over. M wouldn’t pull over.

Charged with obstructing justice s. 129 (b) – omission to help a public officer in the execution of his duty

→ He could have arrested him and used - s.495(2)(d) – can arrest to establish the identity of the person –

this a less serious option

Issue(s): 

Is M guilty of obstructing a police officer?

Ratio: 

Omission to act in a particular way will give rise to criminal liability only where a duty to act arises at

common law or is imposed by statute, or by contract.

Analysis: 

Narrow View: A person obstructs justice that satisfies s.129 (b) if he fails to indentify himself to an officer,

when he was seen committing a crime.

Broader View: A person can obstruct justice, in the terms of s.129(b), if he fails to act in a way convenient

to an officer.

Majority

→ Under the Motor Vehicle Act – every driver of a vehicle and every pedestrian shall obey the

instructions of an applicable traffic-control device.

→ Say it is a major inconvenience (not in public interest to inconvenience the police) – this is absurd – but

is the law

Dissent

→ Any duty to identify oneself must be found in common law or by statute.

→ The fact that a police officer has a duty to identify a person suspected of an offence says nothing about

whether the person has the duty to indentify himself on being asked

⇒ They are entirely independent

→ Criminal law is no place within which to introduce implied duties, unknown to statute and common law,

breach which subjects a person to arrest and imprisonment

Holding: 

M had a duty to give S his name, he was obstructing S’s performance

R. v. Peterson, (2005)—s. 215 of the Criminal Code imposes a duty to every one who is in charge of a

person unable, by reason of detention, age, illness, mental disorder or other cause to provide necessities

of life. Failure to do so is an omission to act

R. v. Browne (1997)—s. 217 of the Criminal Code creates a duty if a person undertakes to do an act,

where an omission to the act is or may be dangerous to life.Facts: The appellant was charged with

criminal negligence causing the death after his drug dealing partner ingested a bag of crack cocaine to

avoid detection by the police. The Court of Appeal found that an undertaking must generally be something

in the nature of a commitment upon which reliance is reasonably placed.

Rule: The mere expression of words indicating a willingness to do an act cannot trigger a legal duty.

Conclusions: There was no evidence that the appellant knew his partner was in a life-threatening

situation until it was likely too late. Further the statement “I’ll take you to the hospital” does not constitute

an undertaking.

House of Lords Miller case – creating a dangerous situation

SUBJECTIVE MENS REA

As indicated, subjective mens rea focuses on the actual state of mind of the subject of the prosecution,

namely, the accused. Since what someone thinks or wants or knows is personal to him unless

communicated, subjective mens rea ordinarily must be gleaned circumstantially, including by using the

common sense inference that persons usually intend the natural consequences of their acts. Since the

state of “knowledge” is not often manifested circumstantially the way apparent intent is, the law will

assume that the accused knew of the elements of the offence unless “defence of mistake of fact”.

It is a close exercise of construction to see what mental states are required by a particular offence. If an

offence is explicit and specifies the relevant state of mind, then only that state of mind will suffice. This is

why “assault” contrary to section 265 requires “intentional” touching, and not simply reckless touching.

Many offences do not specify the relevant mental state. If a true crime is silent as to the mental state and

the offence requires a consequence, it is presumed that intention or “recklessness” in bringing out the

consequence will suffice.

Again, subject to exception (see for example C.C. s. 150.1) where an offence sets out conditions or

circumstances that have to exist, the accused must, as a general rule, know that those conditions or

circumstances exist before the offence can be committed, although the mens rea known as “willful

blindness” can substitute for full knowledge.

Intention, and Ulterior Mens Rea - The accused must have the very intention required by the relevant

provision. Motive of avoiding harm does not negate intent (Hibbert)

R. v. Vandergraff - (V intended to throw the object, but not make contact with the victim, and therefore

the “assault” was not intended.  The assault provision, s 265, requires the intentional application of force

to the person)

R v Murray - M intended to hold the Bernardo tapes, but not for the purpose of wilfully attempting to

obstruct justice (s 139(2)), and therefore he could not be found guilty.  “Wilfully” constitutes the mens rea

– is the act is done for the purpose of obstructing the course of justice.  This is a “specific intent” offence

and the onus is on the Crown to prove that Murray, when he secreted the tapes, intended to obstruct the

course of justice

R. v. J.S.R. (2008)—The accused intended to shoot into a crowd, with the intent to kill a human,

but not the human that he killedIssue: Did the accused have the requisite intention to be charged with

murder?Rule: The accused must mean to cause the death of another human to be charged with murder.

Analysis: Because the accused shot into an open crowd to kill another person (factual), knowing that

shooting was likely to cause death (imputed/legal), and substantially contributed (depending on the

evidence to be revealed at trial), he could be charged with murder.

Conclusion: The charge should proceed to trial.

R v Roks - In Roks, the Court of Appeal stresses the importance of knowing that death is probable and

warns of the dangers of reasoning backwards from the fact that death occurred.

Subjective Mens Rea with Objective Features- For example, the accused can commit fraud if he

intends the relevant transaction, even if he does not appreciate that a transaction of that nature is

“dishonest.” If it were otherwise objective dishonest people would be held to lower standards than the rest

of us.

R. v. Théroux, [1993] 2 S.C.R. 5 

Facts: T was business man. Sold homes to buyers. Claimed had insurance program. Made false

representations that the deposits were insured. House not built. People didn’t get deposits back

Issue(s): Does the fact that T honestly believed the houses would be completed negate the mens rea of

the offence?

Ratio: 

Elements of Actus Reus of Fraud (s.308(1)) : dishonest act and deprivation (Olan)

→ Deprivation of money, security, or property (also imperiling of is sufficient)

⇒ Established by proof of loss, prejudice, or risk of prejudice

→ Dishonest act by:

⇒ Deceit ⇒ Falsehood

⇒ Other fraudulent means (Whether reasonable person thinks act is dishonest) – objective standard

Elements of Mens Rea of Fraud

→ Accused knowingly undertook the act which constitutes the falsehood, deceit, or other fraudulent

means (subjective knowledge of dishonest act), AND

→ The accused was aware that the deprivation could result from such conduct (element of risk)

(subjective knowledge of deprivation of another)

Analysis: 

For fraud by deceit or falsehood – all that need be determined is whether the accused, as a matter of fact,

represented that a situation was of a certain character, when, in reality, it was not.

Test for Mens Rea is Subjective

→ Whether the accused subjectively appreciated those consequences at least as a possibility (looks to

intention and facts as the accused believed them to be)

T believed that no such risk would materialize – he thought the houses would be built

o→ But he told them something he knew to be false, he knew his act was depriving them of insurance

protection

Holding: 

T was guilty of fraud

R. v. Chase, [1987] 2 S.C.R. 293 

Facts: C was struggling with 15 yr old girl, touching her breasts

Issue(s): What is the meaning of sexual in terms of the Code for sexual assault?

Ratio: 

Sexual assault is an assault, which is committed in circumstances of a sexual nature, such that the sexual

integrity of the victim is violated.

Test: Is the assualt committed in circumstances of a sexual nature, such that the integrity of the victim is

violated? – objective test (reasonable person look at the totality of the circumstances)

Analysis: 

Circumstances to look at when doing the test include:

→ The part of the body touched, the nature of the contact, the situation in which it occurred, the words

and gestures accompanying the act, and all other circumstances surrounding the conduct, including

threats, will be relevant, the intent of the accused (not a determinative factor, but one that should be

considered)

Holding: 

It was a sexual assault

Knowledge – e.g. s229(c), As indicated, bearing in mind what is said above about standards of

criminality, the accused must generally know that the conditions of the actus reus exist. For example, an

accused cannot be convicted of assaulting a police officer if she does not know the victim is a police

officer. Generally, it is unrealistic to expect the Crown to prove what the accused knows, so we presume

the accused knows of the relevant conditions, unless the accused presents a “mistake of fact defence.”

R. v. Ewanchuk (1999)—the accused’s state of mind is not relevant and only becomes so when a

defense of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. Issue: Did

the accused have an honest belief in consent found to be mistaken giving rise to the defense of mistake

of fact ?

Rule: (1) The trial judge must determine whether there is any evidence that exists to lend an air of reality

to the defence. If there is an air of reality, the trier of fact must answer whether the accused honestly

believed that the complainant had communicated consent. (2) To be honest, the accused’s belief must

not be reckless, willfully blind or tainted by the awareness of any of the ss. 273.1(2) and 273.2 factors—

force, fear, threats, fraud, authority, etc. (3) If at any point the complainant expressed a lack of agreement

to engage in sexual activity, the accused must point to some evidence from which he could honestly

believe consent had been re-established.

Analysis: (1) A belief by the accused that the complainant, in her own mind, wanted him to touch her but

did not express that desire is not a defense. Here the accused knew that the complainant was not

consenting before each encounter. The trial judge should have considered if anything happened between

the non-consent communication and the subsequent touching which the accused could have honestly

believed constituted consent. There was no air of reality. (3) Whether the accused took reasonable steps

to ascertain that the complainant was consenting is a question of fact to be determined by the trier of fact

only after the air of reality test has been met.

Conclusion: The accused did not have consent and there was evidence introduced that the judge could

point to that provided an air of reality to the defence of mistake of fact.

Major, writing for the majority, held that there was no defence of "implied consent" to sexual assault and

overturned the ruling of the Court of Appeal. The accused must raise a reasonable doubt that there was

consent. Consent can be shown in one of two ways:

the "complainant in her mind wanted the sexual touching to take place"; or

"the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual

activity with the accused".

L'Heureux-Dubé, in a concurring judgment, held that the defence could not be used unless the accused

took sufficient steps to ascertain consent. Here, the accused did not make any attempt to ensure that the

accused had consent when he moved from a massage to sexual touching. She also castigated McClung's

opinion severely, arguing that it relied on myths and stereotypes about women and sexual assault.

R. v. Levigne (2010)—Issue:Rule: An accused is presumed by law, in the absence of evidence to the

contrary, to have believed he was communicating with an underage sexual target and, under subs. (4), it

is not a defence to charge the accused believed that the person was not underage, unless he took

reasonable steps to ascertain the age of the person.

Analysis: The accused acknowledged that he did not take reasonable steps to ascertain the target’s real

age and testified that he did not believe he was 13 because his online profile stated he was 18, even

though, at the very beginning of their chat, the target had informed the accused that the age on his profile

was wrong.

Conclusion: The accused did not provide any evidence that to satisfy the reasonable steps requirement,

therefore the presumption is not rebutted, and it is presumed that the accused knew the target was

underage for the charge of luring a child.

CC s. 265(4)—mistake of fact defense for assault.CC s. 273.2—where mistake of fact will not be a

defense for assault (reasonable steps)

Beaver v R, [1957] SCR 531 

Facts: B agreed to sell heroin to an undercover RCMP officer. Defence was that H had told him it wasn’t

heroin

Ratio: True crimes we need proof of subjective MR.

Mistake of fact is the denial of MR for the defence – it is not a defence it is just not having the requisite

MR to make up the offence.

Holding: Was a reasonable defence – he was told it was something else – however that mistake did not

negate the MR for the trafficking offence

R v ADH 2013 – The accused, not previously knowing that she was pregnant, gave birth while using the

toilet in a retail store.  Thinking the child was dead, she cleaned up as best she could and left, leaving the

child in the toilet.  The child was in fact alive, was quickly attended to by others and transported to the

hospital where he was successfully resuscitated and found to be completely healthy.  The accused was

eventually identified as the woman seen entering and leaving the washroom at the time in question. 

When contacted by police, she cooperated fully and confirmed that she was the mother of the child.  She

was charged with unlawfully abandoning a child under the age of 10 years old and thereby endangering

his life contrary to s. 218 of theCriminal Code.

The trial judge noted that the accused acknowledged that she had left her child in the toilet, thereby

committing the actus reus of the s. 218 offence.  As for the mens rea, the trial judge decided that

subjective fault was required and found that the Crown had not proven beyond a reasonable doubt that

the accused intended to abandon her child.  She had not known she was pregnant and truly believed she

had delivered a dead child.  Her fear and confusion explained her subsequent behaviour.  The trial judge

accordingly found the accused not guilty and dismissed the charge.  The majority of the Court of Appeal

agreed with the trial judge that s. 218 of the Criminal Code requires subjective fault.

Per McLachlin C.J. and Fish, Abella, Cromwell and Karakatsanis JJ.: The text of s. 218 of theCriminal

Code does not expressly set out a fault requirement, but when read in light of its full context , it supports

the conclusion that subjective fault is required.  An important part of the context in which we must interpret

s. 218 is the presumption that Parliament intends crimes to have a subjective fault element.  There is

nothing in the text or context of the child abandonment offence to suggest that Parliament intended to

depart from requiring subjective fault. 

The legislative history of s. 218 further supports the conclusion that the fault element for s. 218 is penal

negligence.  The provision has never included words of subjective intention, as confirmed by the early

English interpretation of the offence.  Furthermore, neither the social stigma associated with it nor the

gravity of the offence of child abandonment require it to be treated differently than its sister provision

s. 215 (failure to provide necessaries), where penal negligence was found to be the requisite fault

element.

Majority: The text, context and purpose of s. 218 of the Code show that subjective fault is required. It

follows that the trial judge did not err in acquitting the respondent on the basis that this subjective fault

requirement had not been proved.  The Court of Appeal was correct to uphold the acquittal.

Rothstein and Moldaver:  Under a penal negligence standard, a mistake of fact that is both honest and

reasonable affords a complete defence.  Thus, an objective mens rea standard does not punish the

morally blameless.  In the present circumstances, the trial judge found that the respondent honestly

believed that her child was dead at birth and that this belief was objectively reasonable.  As such, she

was entitled to be acquitted based on the defence of honest and reasonable mistake of fact.

Willful Blindness – Willful blindness is related to but distinct from recklessness. It is a subjective state of

mind, requiring that the accused personally sees the risk of a fact, but then willfully avoids confirmation so

as to be able to deny knowledge. This concept fits best when used as a substitute for knowledge,

although courts (and Parliament in C.C. s. 273.2) have an unfortunate habit of using “willful blindness”

terminology as interchangeable with recklessness.

R. v. Currie (1975)—willful blindness re: burden of proof for suspicion.

Issue: By cashing the check of a stranger, was the accused willfully blind to the fact that the cheque may

be forged or stolen?Rule: The knowing requirement of uttering a forged document includes the doctrine

of willful blindness where the accused has a suspicion aroused but then deliberately omits to make further

inquiries, because he wishes to remain in ignorance (this is not constructive knowledge—“ought to have

known” is a negligence standard, the accuse must have a suspicion.

Analysis: The accused cashed a cheque given to him by a person he had never met before. It is his

responsibility to make inquiries as to the validity of the cheque before he presents it to his bank. He did

not make such inquiries and was willfully blind to the fact that the cheque could be stolen.

Conclusion: The knowing requirement of the charge was met by the willful blindness doctrine.

R. v. Vinikurov, (2001)—proper instruction to the jury: willful blindness v. recklessness.

Issue: Was the accused willfully blind as to the existence of the fact that the pawned items were stolen?

Rule: Possession of property obtained by crime (s. 354) requires knowing that the property was obtained

by an offense. Knowing can be shown by deliberately failing to make further inquiries as to the origin of

property because he wishes to remain ignorant as to the fact that the property may be proceeds of crime

and takes possession of the property.

Analysis: The Crown has the burden of proving “knowing” possession. In this case the trial judge found

the willful blindness was not proven, but found the accused reckless, satisfying the knowing requirement.

Recklessness is found subjectively when the accused sees the risk and takes the chance regardless—

recklessness presupposes knowledge. Willful blindness requires knowledge of the risk and failure to

make further inquiries so that he may remain ignorant to the risk.

Conclusion: The Crown must first show that the accused had a suspicion that would compel further

inquiries before the “knowing” requirement of possession is met.

Vinokurov appealed the decision. Two of the three appeal court justices found that the trial judge had

erred in determining recklessness. In their judgment, they wrote that “Recklessness requires

consciousness of the risk,” and the Crown did not prove beyond a reasonable doubt that Vinokurov was

conscious of the risk, i.e., that he even considered the possibility that the property he was buying had

been stolen. The Court of Appeal determined therefore that “it was not open to the trial judge to find

recklessness.” Because recklessness was not allowed as the element of mens rea, the appeal was

allowed, the convictions quashed, and a new trial ordered.

R. v. Briscoe, (2010)—Knowledge re: aiding and abetting sexual assault and murder.

Issue: What state of mind is required of the accused to establish an aider or abettor’s knowledge?

Rule: Everyone is a party to an offence who (1) actually commits it; (2) does or omits to do anything for

the purpose of aiding any person to commit it; or (3) abets any person in committing it. A person does or

omits to do anything “for the purpose” if they assist or encourages the person and does so with the intent

and knowledge that their act or omission is encouraging or assisting in the commission of the crime. The

Crown must prove the accused had the intent to assist the perpetrator with knowledge of the perpetrator’s

intent to commit the crime. Willful blindness can substitute the requisite knowledge.

Analysis: The accused had a well founded suspicion that someone was going to be killed at the golf

course and that he may have been willfully blind to the kidnapping and prospect of sexual assault. His

own statements show that he deliberately chose not to inquire about what the members of the group

intended to do because he did not want to know.

Conclusion: The Crown provided sufficient evidence that the trier of fact could find that the accused had

the requisite knowledge.

Recklessness - Recklessness is a subjective state of mind that requires the accused to act in spite of

actually and personally foreseeing the risk that if they do act, the prohibited consequence will be brought

about. It therefore differs from negligence which can apply even if the actor does not personally see the

risk, provided a reasonable person would have. Still, recklessness is a subjective mens rea with objective

features because it exists only where it is objectively unjustifiable to take that risk the accused understood

he was taking.

R. v. Theroux, (1993)—deceitful conduct with the subjective knowledge (proven by objective means) that

the prohibited consequence (deprivation of another) could occur is sufficient mens rea in the context of

fraud.Issue: Was the accused reckless as to whether the depositor’s would lose their money if uninsured?

Rule: Where the conduct and knowledge required by the fraud provision are established, the accused is

guilty whether he actually intended the prohibited consequence or was reckless as whether it would

occur.Analysis: Although the accused believed that the project would go ahead and the depositor’s

money would not be lost, by not insuring their deposits he was reckless as to whether the depositors

would actually lose their money. A reasonable person could foresee that there was a chance that

depositors could lose their money.Conclusion: Recklessness in the context of fraud is sufficient to satisfy

the requisite mens rea.

R. v. Buzzanga and Durocher (1979)—construction of “willfully”, as a limited kind of mens rea, does not

include recklessness.

Issue: Does “willfully” include recklessness as to whether the consequences will occur?

Rule: Every one who, by communicating statements, other than in private conversation, willfully promotes

hatred against any identifiable group is guilty of . . . [public incitement of hatred]

Analysis: The other CC provisions regarding incitement of hatred require a general mens rea which

includes intent and recklessness. Because CC s. 319(2) expressly requires willful conduct where it would

otherwise be implied, it was Parliament’s intent that “willfully” be limited to intentional promotion of hatred,

excluding recklessness.

Conclusion: The accused published the document with the intent to promote hatred with the purpose of

obtaining the French-language school.

On balance, Martin finds that the trial judge misunderstood "willfully" and focused on the intentional nature

of the defendant's conduct in distributing the pamphlets, but not in desiring the outcome. In the result, a

new trial is ordered.

Objective Mens Rea and True Crimes

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

how a reasonable person would act. The criminal law has long been uncomfortable with objective fault, as

historically the criminal law responded to an “evil” mind, and careless people may be dangerous but they

are not evil.

That said, the ultimate issue is whether the accused can be said to have engaged in a marked departure

from the standard of care expected of the reasonable person. In R. v. Creighton the Court rejected the

idea that mens rea always has to relate to all aspects of the actus reus. In that case, the Court in a 5:4

decision held that the fault for unlawful object manslaughter was objective foresight of bodily harm and

that the objective test should be based on a simple reasonable person standard with the personal

characteristics of the accused not being relevant unless they revealed an incapacity to appreciate the

prohibited risk.

For crimes using objective fault as the mens rea, “penal negligence” - a more restricted form of

negligence requiring a marked departure from reasonable standards of care - is generally required. One

exception is with “predicate offences,” those aggravated forms of offence that apply when serious

consequences result, and that include within their elements another complete but lesser offence, a

“predicate” offence. For predicate offences the consequence need not be brought about by “penal

negligence.” It is enough if the accused commits the underlying or predicate offence, and that the

aggravated consequence that has been thereby caused was objectively foreseeable. Also, for the specific

offence of criminal negligence, the higher standard of a “marked and substantial” departure must be

proven.

R. v. Martineau, -

Facts: M and X set out to do what M thought was a B&E. They robbed J and X killed J

Issue(s): Does s.213(a) 230(a) infringe or deny the rights or freedoms guaranteed by s.7 or s.11(d)?

Ratio: It is a PFJ that a conviction for murder cannot rest on anything less than proof beyond a

reasonable doubt of subjective foresight

Analysis: 

Majority: The rationale for subjective foresight of death is linked to the general principle that criminal

liability for a particular result is not justified except where the actor possesses a culpable mental state in

respect of that result

→ Proportionality between the stigma and punishment attached to a murder conviction and the moral

blameworthiness of the offender.

Dissent: The question is not what is the best test, but what is the constitutionally valid one? – The answer

is objective foresight

→ The test of objective foresight of death for the crime of murder does not offend PFJ

Holding: 

This section unduly impairs the Charter rights – it is not saved by s.1

R v Creighton, [1993] 3 SCR 3 

Facts: 

C (experienced drug user) got cocaine. With consent injected X. X died from injection

Issue(s): 

Does the common law definition of unlawful act manslaughter contravene s.7 of the Charter?

Ratio: 

The Standard for manslaughter is: Objective foresight of non-trivial bodily harm – use a modified objective

standard, where you place reasonable person in the circumstance of the accused (not taking into account

personal characteristics, but do take into account capacity issues).

→ The offence of unlawful act manslaughter requires objective foreseeability of bodily harm which is

neither trivial nor transitory, arising from a dangerous act

Analysis: 

CC defines 3 general types of culpably homicide:

→ Murder – the intentional killing of another human being

→ Infanticide – the intentional killing of a child

→ All other – manslaughter falls into this category

The test for MR of unlawful act manslaughter is objective foreseeability of risk of bodily harm which is

neither trivial nor transitory, in the context of a dangerous act – foreseeability of the risk of death is not

required.

→ The fact that the MR of manslaughter requires foreseeable risk of harm rather than foreseeable risk of

death does not violate the principles of fundamental justice.

The appropriate test for MR is an objective test, with only one exception, incapacity to appreciate the

nature of the risk

→ Personal characteristics should not be admissible

→ Beyond the exception the test should not be individualized

Dissent:

*Murder is distinguished from manslaughter only by the mental elements with respect to the death

*The Objective test

→ Trier of fact must pay attention to any human frailties which might have rendered the accused

incapable of having foreseen what the reasonable person would have foreseen

→ Would a reasonable person in the same circumstances have been aware that the likely consequences

of his or her unlawful conduct would create the risk of death?

⇒ If No – accused acquitted, if Yes then ask:

→ Were there unaware bc they were willfully blind or lacked capacity?

Holding: 

C guilty

Comments: 

Murder = subjective

Manslaughter = objective

Test for Manslaughter

1. Is AR established? – negligence (as ex) must constitute a marked departure from the standards of a

reasonable person

2. Is the MR established? – inferred from facts – is objective foresight

→ a. Standard is that of a reasonable person in the circumstance of the accused

⇒ i. May be negated by evidence as to lack of capacity

→ 1.If have the capacity and 1 and 2 are yes = conviction

Lamer J (not majority view) Reasonable person = invested with any human frailties which might have

rendered the accused incapable of having foreseen what the reasonable person would have, as well as

any “enhance foresight”

R v Beatty, 2008 SCC 5 

Facts: 

B charged with dangerous driving causing death under s.249(4). Truck crossed solid centre line and killed

3 people. Prior to this B was driving properly. B doesn’t know what happened, he must have lost

consciousness or fallen asleep.

Dangerous Driving, s.249 – Contextualized objective standard

→ AR: persons driving is objectively dangerous

→ MR: marked departure from the standard of care that reasonable person in circumstances would

observe

Issue(s): 

Does s.249 require a marked departure or simple negligence standard?

Ratio: 

A modified objective test for negligent driving is a marked departure, in the circumstances the accused

knew at the time, not taking into account personal characteristics, unless incapacity to appreciate the risk.

A modified objective test is the appropriate test to determine the requisite mens rea for negligence based

criminal offences

Analysis: 

The burden is on the accused to raise a reasonable doubt about whether a reasonable person in the

accused position would appreciate the risk he has created.

Hundal - It is only where there is a marked departure from the norm that objectively dangerous conduct

demonstrates sufficient blameworthiness to support a finding of penal liability.

→ Personal attributes such as age and experience are not relevant – incapacity to appreciate the risk or

incapacity to avoid creating it is relevant

Holding: 

B did not meet the high level of MR required - it was only a few seconds and that does not constitute

negligence in this case

Criminal negligence manslaughter – marked and substantial departures

Unlawful Act Manslaughter – marked departure

Beatty - All evidence must be examined and fault should not be automatically deduced even from a

dangerous act.

Regulatory Offences

Regulatory offences can be created by any level of government. Regulatory offences can be full mens rea

offences just as true crimes are, but a clear indication that mens rea is required is needed before

regulatory offences will be interpreted as having mens rea elements.. They are presumed to be “strict

liability” offences (offences that can be committed by simple, non- penal negligence, with the accused

bearing the burden of proving an absence of negligence to avoid conviction). Some regulatory offences

operate as absolute liability offences that will be committed whenever the relevant actus reus is proved,

provided this is clearly what the legislators intended when establishing the offence.

The court has also recently recognized a defence of officially induced error that can apply both to criminal

and regulatory offences, but is most relevant to regulatory offences.

R. v. Sault Ste. Marie (1978)—distinguishes between 3 types of offences; discusses due diligence

defence.Defence of reasonable care: the Crown need only prove that the prohibited act occurred, the

defence may prove that all due care has been taken. This involves a consideration of what the reasonable

man would have done. The accused must honestly and reasonably believe in a mistaken set of

facts, which, if true, would render the act or omission innocent, OR if he took reasonable steps to

avoid the particular event.

3 Types of Offences:1. Mens rea offences: consisting of some positive state of mind such as intent

recklessness must be proven.2. Strict Liability: the Crown need only prove the prohibited act occurred.

The accused has the reasonable care offence. Public welfare offences fall into this category.3.

Absolute liability: all that is required is proof that the accused committed the prohibited act. Whether an

offence is absolute liability consider: (a) the overall regulatory pattern, (b) the subject matter of,

(c) the importance of the penalty, (d)and the precision of the language used.

Reference re Section 94(2) of the Motor Vehicle Act (B.C.) (1985)—Absolute liability and

imprisonment cannot be combined because it will violate s. 7- “Principles of fundamental justice”

set the parameters of s. 7 right to not be deprived of life, liberty and security of the person. The innocent

cannot be punished.

- Imprisonment without fault (mens rea) deprives a person of their liberty and is not consistent with

principles of fundamental justice.- Violations of s. 7 can be saved by s. 1 “reasonably justified under the

circumstances in a free and democratic society”. This can be shown if the offense is proven to be in the

public interest.- The Crown failed to show that ridding the road of bad drivers was in the public interest

could be proportional to limiting people’s rights by imprisoning them.

R. v. Wholesale Travel Inc. [1991] 3 S.C.R. 154 (holding timely retraction requirements to be an

unconstitutional form of absolute liability but upholding strict liability offences that require the accused to

establish a due diligence defence on a balance of probabilities).

Wholesale Travel was charged with false advertising under s.36(1) (now s.52(1)(a)) of the Competition

Act. They stated that they were offering vacation packages "at wholesale prices" when in fact they were

charging more to customers than they had to pay for the vacations. The statutory punishments for the

offence were a fine of up to $25,000 and five years in prison. There were also lengthy statutory defences

defined, which included exculpating oneself by showing that they acted reasonably in the circumstances.

Wholesale Travel appeals on an order for trial from the Court of Appeal.

Issue

Do regulatory schemes which impose strict liability breach ss.7 and 11(d) of the   Charter ?

Decision

Appeal dismissed.

Reasons

Cory J reaffirms the decision of R v Sault Ste. Marie. This is obviously a strict liability offence for all of the

reasons set out in the previous case. Therefore, the Crown does not need to prove mens rea in order to

get a conviction; however, the defendant can be acquitted if they can show that they acted reasonably in

the circumstances (among the other things required for the statutory defence).

The Court unanimously held that that the "timely retraction" provisions of s. 37.3(2)(c) and (d) of

the Act did infringes.7 and could not be saved under s.1.

The Court however was divided on whether a reversal of onus onto the accused in s. 37.3(2) was

constitutional. The majority (Lamer with LaForest, Sopinka, Gonthier, McLachlin, Stevenson, and

Iacobucci) held that the reverse onus infringed s. 11(d) of the Charter. However, only four of the seven

held that it could not be saved under s.1. Since the remaining two judges (L'Heureux-Dube and Cory)

found the reversal of onus did not violate s.11(d), a majority was had by those that argued a reversal of

onus was constitutionally justifiable by a 5 to 4 margin.

Ratio

Public welfare offences are generally strict liability offences, meaning that the Crown does not need to

prove mens rea, but the defendant can be acquitted if they prove that they acted reasonably in the

circumstances.

If the offence has a statutory defence that is similar to this requirement then it falls under the heading of

strict liability offences, and the Crown does not need to prove mens rea for a conviction.

Corporations can challenge the constitutional validity of sections of the Code or other statutes even if the

sections that are infringed deal with the rights of individuals.

Laws that are found to be unconstitutional do not apply to anyone – including corporations.

R. v. Raham (2010)—absolute liability offence combined with potential for imprisonment offends s.

7. Application of due diligence defencse- Using the French version to clarify ambiguities in the statute,

the court held that the provision could be violated by stunt driving, which includes driving at 50Km/hr over

the speed limit.- The legislature cannot, absent reliance on s. 1 of the Charter, imprison without

fault.- Strict liability sets out the lowest standard of fault available.- Considering whether the language

used to create the offence can reasonably admit a due diligence offence is a consideration of the

4th Sault Ste. Marie factors—“precision of the language used”. Language that expressly, or by

clear implication excludes the due diligence defense compels the conclusion that the offence is

absolute liability.- The legislature did not expressly exclude the due diligence defence to violation of the

provision.

Levis (City) v. Tetreault (2006)—failure of due diligence defence.- For the due diligence defence, the

Supreme Court has reminded that the concept of diligence is based on the acceptance of a

citizen’s civic duty to take action to find out what his or her obligations are.- Passive ignorance is

not a valid defence.- The accused was charged with operating a vehicle without a license, his defence

was that he expected to receive a renewal notice and that he confused the expiry date with the due date

for paying fees to keep a valid license—due diligence defence was not available.

EXTENSIONS OF CRIMINAL LIABILITY 11/1/2013 5:22 PM

Aiding and Abetting

It is not only the person who actually performs the actus reus (the “principal” offender) who can be

convicted of the offence. So too can those who aid (physically support) or abet (encourage) the accused

to commit the offence. Indeed, persons who aid and abet one offence can, in some circumstances, be

convicted of offences they did not intend to aid or abet, provided that offence is under s.21(2) a

foreseeable outcome of the offence

AR: Aid or abet ; MR: must not only knowingly assist the principal (knowledge of the type but not the

exact nature of the crime committed) but also intend to assist the principal (need not see the commission

of the offence as desirable and thus not susceptible of n=being negated by duress); purpose synonymous

with intent ad does not include recklessness (R v Roach) even if the original offence had an objective fault

requirement

Dunlop and Sylvester v The Queen, [1979] 2 SCR 881 

Facts: Motorcycle gang and B at park. About 18 guys had sex with B. D and S came with beer. They said

they were just dropping it off and saw B having sex someone but didn’t know what was going on. B

indentified D and S from lineup

Issue(s): 

Does the fact that the accused were present for part of the assault and did nothing to assist the victim

amount to aiding and abetting?

Ratio: 

Mere presence or passive acquiescence is not sufficient for liability w/o encouragement of principal

offender or act of facilitation.

→ Mere presence itself cannot be interpreted to be encouragement

Analysis: 

Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by

other factors – such as: prior knowledge of the offender’s intentions to commit the offence, or attendance

for the purpose of encouragement. mere presence is not evidence

R v Salajko – girl raped, 3 people charged, S was near girl with pants down did not have intercourse with

her

→ Holding was the what S did was not encouragement

Comments: 

R v Salajko – this decision was an anomaly and should not be followed

R v Logan, [1990] 2 SCR 731 

Facts: L charged with attempted murder during a robbery. L shot X in neck. X lived

Issue(s): Does s.21(2) of the CC contravene s.7 and/or s.11(d) of the Charter?

Ratio: Where there is a constitutionally minimum required MR for the principle in those cases the party

must have the same level of MR

Analysis: 

To be convicted of a party to murder you must have subjective foresight of death.

Vaillancourt does preclude Parliament from providing for the conviction of a party to that offence on the

basis of a degree of MR below the constitutionally required min.

The question whether a party to an offence had the requisite MR to found a conviction under s.21(2) is 2

steps:

→ What is constitutionally required MR for principal? - Is there a min degree of MR required by PFJ

(constitutionally required min MR)? IF SO

→ If PFJs do require a certain min degree of MR in order to convict the principal, then that min degree of

MR is constitutionally required to convict a party to that offence as well?

Holding: 

s.21(2) violates s.7 and cannot be justified under s.1

On charges where subjective foresight is a constitutional requirement (murder and attempted murder), the

objective component of s.21(2) is not justified.

R. v. Briscoe (2010)—“purpose” in s. (1)(b) is synonymous with intention.Willful blindness can

substitute for actual knowledge whenever knowledge is a component of mens rea.- The accused

had a suspicion that the victim was going to be murdered, but chose not to make further inquiries and

abandon the purpose. Therefore, the accused is also guilty of murder.

R v JF 2013 - J, a youth, learned that his friend T and her sister R were planning to murder their mother

by plying her with alcohol and drowning her, a plan which the sisters ultimately executed and were

convicted for.  The police found an MSN chat log between J and T in which J provided information to T

about death by drowning; suggested that the sisters should give their mother codeine pills in addition to

alcohol; and suggested ways to mislead the police.  The Crown also led evidence that J supplied the girls

with pills and met T and R after the murder to provide an alibi.  The trial judge instructed the jury that J

could be convicted of conspiracy to commit murder under s. 465(1) of the Criminal Code either as a

principal, or as a party under ss. 21(1)(b) or (c) of the Criminal Code.  J was convicted of conspiracy to

commit murder.  The Court of Appeal dismissed an appeal from the conviction but reduced J’s sentence.

Held:  The appeal should be dismissed.

 Per McLachlin C.J. and LeBel, Fish, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.:  Party liability

to conspiracy is an offence known to Canadian law.  Unlike attempted conspiracy, it does not involve

stacking one form of inchoate liability upon another, and does not suffer from remoteness.

The Trieu model is a legitimate basis for party liability to a conspiracy.  A person becomes party to an

offence if he aids or abets a principal in the commission of the offence.  It follows that party liability to a

conspiracy is made out where the accused aids or abets the actus reus of conspiracy, namely the

conspirators’ act of agreeing. 

In light of the conclusion that party liability does not extend to acts done in furtherance of the unlawful

object of the conspiracy, party liability should not, in the present case, have been put to the jury.  There is

no evidence that J aided or abetted the initial formation of the agreement between R and T to murder their

mother or aided or encouraged a new member to join the existing conspiracy.  The trial judge’s error,

however, could not possibly have affected the verdict.  The curative proviso under s. 686(1)(b)(iii) of the

Criminal Code applies.  The evidence implicating J as a member of the conspiracy was overwhelming

and, once the jury rejected J’s defence, a finding of guilt under s. 465(1) of the Criminal Code was

inevitable. 

R v Gauthier 2013 - G was charged with being a party, together with her spouse, L, to the murder of their

three children at the dawn of the year 2009.  According to the Crown’s theory, G was a party to the

murder in planning it as part of a murder-suicide pact and in supplying the murder weapon.  She did not

act to prevent the children from being poisoned with drinks served by her spouse, which contained Gravol

and oxazepam.  Thus, she aided L to kill the children.  At her jury trial, G submitted in her defence that

she had not bought the medication to poison her children, that she was in a dissociative state on

December 31, 2008 when she wrote some incriminating documents, and that this state meant she could

not have formed the specific intent to commit the murders.  In the alternative, should her argument based

on the absence of mens rea be rejected, she claimed to have abandoned the common purpose of killing

the children and to have clearly communicated her intention to do so to her spouse.  The jury found G

guilty of the first degree murder of her three children.  The Court of Appeal upheld the guilty verdict,

concluding that the trial judge had not erred in refusing to put the defence of abandonment to the jury,

since it was incompatible with the defence’s principal theory.

Held (Fish J. dissenting):  The appeal should be dismissed.

Per LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ.: There is no cardinal rule against

putting to a jury an alternative defence that is at first glance incompatible with the primary defence.  The

issue is not whether such a defence is compatible or incompatible with the primary defence, but whether it

meets the air of reality test.  In any case, the trial judge must determine whether the alternative defence

has a sufficient factual foundation, that is, whether a properly instructed jury acting reasonably could

accept the defence if it believed the evidence to be true.

… if the evidence shows (1) that there was an intention to abandon or withdraw from the unlawful

purpose; (2) that there was timely communication of this abandonment or withdrawal from the person in

question to those who wished to continue; (3) that the communication served unequivocal notice upon

those who wished to continue; and (4) that the accused took, in a manner proportional to his or her

participation in the commission of the planned offence, reasonable steps in the circumstances either to

neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of

the offence.  There will be circumstances in which timely and unequivocal communication by the accused

of his or her intention to abandon the unlawful purpose will be considered sufficient to neutralize the

effects of his or her participation in the crime.  But there will be other circumstances, primarily where a

person has aided in the commission of the offence, in which it is hard to see how timely communication to

the principal offender of the person’s intention to withdraw from the unlawful purpose will on its own be

considered reasonable and sufficient. In this case, G’s evidence that she communicated her withdrawal

from the deadly plan and that her communication was timely and unequivocal is insufficient.  She

therefore had to do more either to neutralize the effects of her participation or to prevent the commission

of the offence.  For example, she could have hidden or destroyed the medication she had purchased,

remained watchful and taken the children to a safe place for the evening, insisted that her spouse give

her verbal confirmation of what he intended to do, or simply called the authorities.  The record did not

therefore contain evidence upon which a properly instructed jury acting reasonably could have found that

G had abandoned the common unlawful purpose, and could accordingly have acquitted her, if it believed

the evidence to be true.  The defence of abandonment therefore did not meet the air of reality test, and

the trial judge was not required to put the defence to the jury.

 Per Fish J. (dissenting):  Canadian courts have for more than 70 years held that the defence of

abandonment comprises only two essential elements: (i) change of intention; and (ii) where practical and

reasonable, timely and unequivocal notice of withdrawal.  This test has been repeatedly and consistently

applied in prosecutions under s. 21(1) and s. 21(2) of the Criminal Code alike.  The defence of

abandonment does not require that the accused take steps to neutralize prior participation in the criminal

enterprise or to prevent the commission of the offence.  While such evidence may strengthen a defence

of abandonment, failure to take neutralizing or preventative steps is not fatal. 

Abandonment looks to mens rea and must be timely notice and depends on the quality of any particular

withdrawal or abandonment and the accused’s particular form and degree of participation.

Relevance of impossibility – as per Chan, since the drug offence was not committed (police had

intercepted the drugs and replaced them with a small amount of heroin), cannot aid or abet – but could be

charged with attempt to possess heroin.

Counseling

An accused can be convicted of counseling offences, whether or not the offences counseled are actually

committed. If the offences counseled are committed, CC. s. 22 operates. If they are not committed, CC. s.

464 operates.

AR: procure, solicit or incite actively induce or advocate rather than merely describe still guilty even

if counseled person rejects the idea of going through with the offence

MR: for crime not committed – subjective knowledge of the crime counselled and an actual intent by the

accused that the crime be performed; an SCC decision held that it also included a lesser form of mens

rea in the form of knowingly counseling a crime while aware of an unjustified risk that the offence was

likely to be committed as a result of the accused’s conduct (Hamilton) (higher standard than reckless

awareness)

R v Hamilton, 2005 SCC 47 

Facts: H sent email saying he had confidential information. Files had instructions on how to set bombs

and break into houses. Included program to generate credit card #s. Charged with counseling of a crime.

No crime committed

Issue(s): Is recklessness sufficient to meet the 2nd step of MR? – YES it is sufficient – but recklessness

is a specific wording not the general meaning as in Sansregret

Ratio: Recklessness is permissible to satisfy MR for counseling, but as defined as – Conscious disregard

of the substantial and unjustified risk inherent in the counseling

Analysis: 

The AR for counseling will be established where the materials or statement made or transmitted by the

accused actively induced or advocated, and do not merely describe, the commission of the offence (R v

Sharpe).

Counseling

→ AR: deliberate encouragement or active inducement of the commission of a criminal offence

→ MR: accused either intended the offence counseled be committed, or knowingly counseled the

commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely

to be committed as a result of the accsued’s conduct

Comments: Now the MR for counseling is just the intent of the accused that the crime be performed –

and that can be satisfied with recklessness if it is a conscious disregard of the substantial and unjustified

risk inherent in the counseling

S23.1 – can still be held guilty of counselling if the accused is not culpable as an accused (only applicable

to committed offences)

S22 – AR: crime need not be committed in the same way as counselled but must be reasonably

foreseeable from the counselling

MR: must intentionally counsel a criminal offence + objective foresight of any other consequences (except

for murder or attempted murder)

Attempts

As the counseling offence in CC. s. 464 illustrates, not all crimes need to be complete before an offence

arises. There is (1) the discrete offence of counseling, (2) the offence of conspiracy in which the

agreement to commit a crime is a crime, and (3) there is liability for attempting to commit an offence.

S24 – classifies attempts question of law

Attempted murder requires an intent to kill; similarly other crimes require specific intent to commit that

crime

Abandonment is not an independent defence but could go to the formation of mens rea for the attempt

(cf other jurisdictions)

R v Ancio - Ancio, wanting to speak with his estranged wife, broke into an apartment building with a

loaded sawed-off shotgun. Kurely, the man with whom his wife had been living, went to investigate the

sound of breaking glass and threw the chair he was carrying at Ancio when he saw him climbing the

stairs. The gun discharged, missing Kurely, and a struggle followed. Shortly after his arrest, respondent

stated to police that he "had him [Kurely] by the throat and I would have killed him." The trial judge found

Ancio had broken into the apartment building with the intent to use the shotgun to force his wife to leave

and convicted him of attempted murder. The Court of Appeal overturned that conviction and ordered a

new trial.

Issue

Is the mens rea in attempted murder limited to an intention to cause death or to cause bodily harm

knowing it to be likely to cause death, or is the mens rea required extended to the intention to do some

action constituting murder as defined by ss.212 or 213 of theCode (now ss.229 and 230)?

Decision Appeal dismissed.

Reasons

McIntyre, writing for the majority, held that the mens rea for attempted murder is the specific intent to kill

and a mental state falling short of that level, while it might lead to conviction for other offences, cannot

lead to a conviction for an attempt. The completed offence of murder involves killing and any intention to

complete that offence must include the intention to kill. He held that despite the arguments of the Crown,

there is nothing illogical which arises from the fact that in certain circumstances a lesser intent will suffice

for a conviction for murder. By definition, a person cannot intend to commit the unintentional killings

described in ss.212 and 213 of the Code (now ss.229 and 230). Any illogic lies in the statutory

characterization of unintentional killing as murder.

The crime of attempt developed as, and remains, an offence separate and distinct from murder. While the

Crown must still prove both mens rea and actus reus, the mens rea is the more important element. The

intent to commit the desired offence is a basic element of the offence of attempt, and indeed, may be the

sole criminal element in the offence given that an attempt may be complete without completion of the

offence intended.

Ratio For attempted murder, nothing short of intent to kill will suffice for the mens rea of that offence.

R v Deutsch, [1986] 2 SCR. 2 

Facts: D charged with procuring a person to have illicit sex w another (s.212(1)(a)). D conducted

interviews with women assistants and told them who he chose who have to have sex with clients

Issue(s): What is the test to convict someone of an attempt?

Ratio: 

Test for Attempts:

1. Need to look at relationship of the offence and the act

→ a. Rewording of the unequivocal act theory

2. Proximity is relevant, taking into account time, location, and acts controlled by the accused that remain

to be accomplished - What is important is the acts the accused took

→ a. The fact that further acts are needed to complete the offence is not determinate of an attempt -

Proximity is not determinative

Holding: 

That acts were an attempt – more then preparatory steps

In this case the actual crime could not be committed until one of the women actually had sex with another

person; however, his offering financial rewards was a step in attempting to make this action occur.

Williams an example where actus reus was impossible but still held liable for attempt as per s 24(1). R v

Shivpuri (UK) – legal impossibility as items were were not stolen when they were believed to be. Dynar

outlined that impossibility is not a defence – therefore one coming to a hotel hoping to extract sexual

services out of an 11 year old is still guilty of attempting to procure even though no child was involved.

Only a defence when it is an “imaginary crime”.

R. v. Dery (2006)—There is no offence of attempting to conspire.- There was no evidence that the

accused had taken any steps to carry out the proposed theft (actus reus) and there was no agreement

(mens rea) to carry out the proposed theft.- Acts that precede a conspiracy are not sufficiently

proximate to a substantive offence to warrant criminal sanction.

Dery exposes the limits of piggy-backing incomplete forms of liability

Corporate and Association Liability

Corporations are liable for the acts of their agents for strict and absolute liability offences. Since these kinds of offences turn on the

actus reus alone, there is no need to use any legal devices to ascribe mens rea to the corporation and so the Criminal Code

corporate liability provisions do not apply to regulatory offences. For true crimes the Criminal Code sets out standards for corporate

and association liability. Section 22.1 applies to objective fault or negligence offences where an association is charged, and s. 22.2

applies to subjective mens rea offences charged against an association.

SELECT CRIMINAL DEFENCES 11/1/2013 5:22 PM

For example, s. 25 of the Criminal Code permits law enforcement personnel to use some force to carry

out their duties, and s. 40 permits the defence of property. There are also procedural defences such as

double jeopardy. Charges can be “stayed” pursuant to s. 11 (b) and 24 of the Charter because of

unreasonable delay. You are responsible only for the select defences described below and those

described in assigned cases, such as de minimis non curat lex in R. v. J.A. 2011 SCC 28, above.

Disease of the mind – factors to consider are continuing danger and/or internal cause

Mental Disorder

Section 16 of the Criminal Code modifies the common law defence of insanity. To have access to this

defence the accused must establish that he has a “mental disorder” as defined by the case law and that it

affected him in one or both of the ways described in s.16 (1).

R v Cooper - Cooper, a man described as a "little slow", was an outpatient at a psychiatric hospital. At a

dance at a local church 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 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.

The test is that that he must have had the mental capacity to foresee the consequences of his violent

conduct. He knew that what he was doing was wrong, but the question is whether he had the mental

capacity to measure and foresee the consequences of the violent conduct. He knew that there was a

problem, but he might not have been able to appreciate the consequences of it. As the charge to the jury

on this point was not sufficiently clear to allow them to act properly as finders of fact, a new trial is

required.

Ratio

The elements of the mental disorder exemption:

the Crown must prove beyond a reasonable doubt that the accused committed the crime and would be

convicted;

the accused must show that their condition falls under a "disease of the mind";

the condition must have caused the accused to not have the capacity to appreciate either the "nature and

quality" of the act or to know that it is wrong;

the legal consequence is not an acquittal, but a special verdict of "no criminal responsibility"

unders.672.34.

Expert testimony that someone has or does not have a "disease of the mind" is not determinative; it is a

question that is to be answered by the finder of fact.

"Diseases of the mind" must impair the human mind in its functioning; this excludes cases of self-induced

incapacity such as through drugs or alcohol, and does not include transitory states such as hysteria or

concussion.

Epilepsy and hypoglycemia – diseases of the mind

“Appreciates” imports a requirement beyond mere knowledge of the physical quality of the act

and requires a capacity to apprehend the nature of the act and its consequences.

R. v. Parks (1992)—modifies Cooper’s definition of “mental disorder”- “Disease of the mind” is a legal

term and not a medical term. Medical opinion is used to show how the condition is viewed or

characterized.- Modifiers: (1) must be internal to the accused, (2) transient disturbances of

consciousness due to external factors do not fall within the concept.

R. v. Kjeldson (1981)—for sociopathic or psychopathic offenders- Although personality disorders or

psychopathic personalities are capable of constituting a disease of the mind, the defence of insanity is not

made out where the accused has the necessary understanding of the nature, character and

consequences of the act, but merely lacks appropriate feelings for the victim of lacks feelings of remorse

or guilt for what he has done, even though such lack of feeling stems from disease of the mind.- It was not

a defense to rape and murder that the accused claimed that he was incapable of emotionally appreciating

the significance of his act.

R. v. Oommen (1994)—knowing the act was wrong”- The accused must not only possess the

intellectual ability to know right from wrong in an abstract sense but must possess the ability to

apply that knowledge in a rational way to the alleged criminal act.- TESTS: Did the accused lack the

(1) capacity to rationally decide whether the act is right or wrong and hence to (2) make a rational choice

about whether to do it or not.- Although knowing right from wrong, the accused suffered from delusions

that caused him to believe that the woman he shot was conspiring against him—he did not have the

ability to make a rational choice as to whether or not to shoot the woman

“know the act was wrong in the moral sense” has been allowed in previous jurisprudence

Voluntary Acts “Negativing” the Actus Reus and Automatism

It is the “voluntariness” concept that explains the defence of automatism, which operates on the theory

that the accused’s physical motions were not culpable where they are not voluntary or thought-directed or

conscious, as in the sleep-walking case of R. v. Parks. Please note that automatism will not realistically

operate in any case where the accused appears conscious of his conduct – it is reserved to those

unusual cases where there appears to be some disconnect between the actions of the accused and his

conscious will. The result of the Parks decision was controversial enough that the Supreme Court of

Canada took procedural steps to cut the defence back in R. v. Stone, although in R. v. Fontaine some of

the excessive language of Stone was qualified by the Court. If the defence that applies in “non-insane

automatism,” a complete acquittal is appropriate, although Stone has stacked the deck against this kind of

defence succeeding.

R. v. Swaby (2001)—Voluntariness concept- An otherwise criminal act cannot be said to be

voluntary unless the person is given reasonable time to avoid committing the act.- The accused

was charged with being an occupant in a vehicle knowing there was a unlicensed, restricted weapon

present. The Crown had to establish (1) occupancy of the vehicle, and (2) the accused’s knowledge of the

weapon.- It is implicit that there be a finding the coincidence of occupancy and knowledge was

attributable to something amounting to voluntary conduct.- If handed the weapon while in a moving

vehicle the accused must be given a reasonable opportunity to either remove himself or to see that the

weapon was removed from the vehicle.

R v Parks - Parks attacked his parents-in-law when he was sleepwalking. He drove 23 kilometers to their

house when he was sleepwalking and stabbed them in their sleep with a kitchen knife. His mother-in-law

died, and his father-in-law was seriously injured. He did not remember any of the actions and there was

no reasonable motive for the murder. Parks did not have any mental conditions, although several

members of his family had sleep problems. Parks had been working long hours at work and had recently

been charged with a theft from his employer. He was acquitted both at trial and at the Court of Appeal.

Lamer held that the expert evidence showed that Parks was indeed sleepwalking at the time of the attack,

that sleepwalking is not a neurological disorder, and that there is no medical treatment for sleepwalking

aside from good health. La Forest went into detail analyzing automatism. In determining whether or not

automatism springs from a disease of the mind one should look to determine if it is caused by internal (in

the mind) or external factors. One should also consider whether the condition is continuing. Although

these are not determinative, a finding that automatism is internal and continuing suggests a disease of the

mind. In this case there was no evidence of a recurrence of sleepwalking causing a similar outcome.

Again La Forest states that whether or not something is a disease of the mind is a legal question –

although expert evidence helps, it is not determinative.

R v Stone - Stone was driving to see his two sons from a previous marriage with his wife. She did not

want him to see them and as a result of her reticence he was only able to visit with them for 15 minutes.

On the drive back she continued to berate him, telling him he was a loser, that he was terrible in bed, that

he had a small penis, and that she was going to go to the police with trumped up assault charges. He

pulled the car over and put his head down. He testified that he blacked out and felt a "woosh" go through

his body. When he came to he had stabbed her 47 times with a hunting knife that he kept in the car. 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.

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.

A claim of the defence of automatism has two steps:

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.

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.

R v Fontaine - Fontaine worked "under the table" at a car garage. Renaud, a former employee, called the

store and said "we're coming to get you, pigs". Dompierre, 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 Renaud 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,

Dompiere 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; 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. This would make him delusional, however, it was

hard to prove and relied mostly on his evidence. However, 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.

The evidentiary burden is discharged if the accused raises sufficient evidence that there is an "air of

reality" that the defence might succeed; the judge is not to consider the truth of the evidence when

deciding if the accused has met the burden.

Saying he had a history of sleep walking and calling a sympathetic sleep expert at trial, (Dr. Colin

Shapiro), Luedecke was acquitted by the trial judge. The Crown appealed and the whole circus found

itself before the Ontario Court of Appeal on February 7, 2008. The Court heard from Luedecke’s counsel

that sexsomnia has been accepted in Canadian criminal law since 1995 and since then, has been raised

seven times, twice successfully. Make that three times as the Court of Appeal reversed and held that

sleepwalking should for policy reasons be characterized as a mental disorder for social defence concerns

and dangers of recurrence of sleepwalking – a charge of not criminally responsible which led to an

absolute discharge from the Review Board.

Simple Intoxication

Specific intent – murder, theft, robbery, aiding and abetting, attempted crimes; general – manslaughter,

assault, assault causing bh

Intoxication does not operate as a justification or excuse for criminal conduct. This so-called defence of

intoxication (simple intoxication) operates only if proof of the intoxication helps leave the judge or jury in

reasonable doubt over whether the accused formed the mens rea of an offence classified by the courts as

a “specific intent” offence that requires the accused to do an act for an ulterior purpose. Traditionally

intoxication has not been a defence for “general intent” offences, defined as offences that simply require

the doing of an act without an ulterior purpose.

Please note that in Canada, the inquiry for the ordinary intoxication defence is no longer into “capacity to

form the intent” as it was in common law England – the defence applies if intoxication prevents the

formation of the specific intent required by the relevant section. In regards to general intent, application of

Majewski in that becoming intoxicated forms the requisite fault of offence ( dissented by Dickson J in

Leary)

R v George - On February 8th, 1959, George tried to sell a fur to Mr. Avergis 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). 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.

The court then considered how the respondent's drunkenness affects the charges. The court agrees with

the trial judge that the intoxication prevented the defendant from forming the specific intent required for

the original charge. However, unless intoxicated to the point of insanity the accused could still form the

intention to strike the man (and the charge of assault only requiring that the defendant have applied force

intentionally). The court then enters a conviction for common assault, saying that they have the power to

do so under s.600 of the Code (now s.695). They say that the difference between specific intention and

regular mens rea is important in cases involving intoxication.

Ratio

When a case with a charge for an indictable offence contains facts that lead to a commission of another

crime (whether punishable by indictment or summary conviction) the charge may be divided (s.590(3)).

Intoxication often makes it impossible for a person to form the specific intention in crimes, however only

intoxication to the point of insanity will negate mens rea altogether in cases involving only general intent.

R. v. Robinson (1996)— The Beard rules (Director of Public Prosecutions v. Beard) on intoxication

(adopted in MacAskill v. The King) should be overruled.  These rules provide that intoxication is not a

relevant factor for triers of fact to consider except where the intoxicant removed the accused's capacity to

form the requisite intent.  According to the Beard rules, the presumption that a person intends the natural

consequences of his or her acts cannot be rebutted by evidence falling short of incapacity.  This

presumption to which Beard refers should only be interpreted as a common-sense inference that the jury

can but is not compelled to make.

2 step process for simple intoxication(1) The judge must be satisfied that the effect of the

intoxication was such that it’s effect might have impaired the accused’s foresight of

consequences sufficiently to raise a reasonable doubt (air of reality).(2) The judge then instructs

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 (e.g. 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)- The accused was drinking with the victim when the victim said something to offend the accused,

the accused then killed him. Second degree murder conviction. cf previous cases because it requires

judges to instruct on actual intent of accused and not capacity to form intent as previously which had

infringed s 7 and 11(d)

- threshold of air of reality test applies here too – could a jury reasonably acquit based on the evidence?

Extreme Intoxication

In R. v. Daviault the Supreme Court held that extreme intoxication verging on automatism could provide a

defence to even general intent offences because it would undermine the voluntariness of the act and it

would be unconstitutional (s 7 and 11(d)) to substitute the act of becoming intoxicated for the basic act

and mind of the offence (as per justice Wilson in Bernard who held 11(d) violation) . The Court indicated

that the defence would be rare and would have to be established by the accused with expert evidence

and established on a balance of probabilities but that it could be applied with respect to general intent

offences such as assault and sexual assault. The theory behind the defence is that a person can become

intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to

his actions. Scientifically, the premise that this can happen is controversial, although Daviault recognized

that if this were to occur the Charter would require an acquittal since voluntariness is a principle of

fundamental justice. (Defence allows an acquittal while simple intoxication results in being charged with a

lesser offence) Daviault was so controversial that Parliament immediately enacted s. 33.1 of the Criminal

Code to eradicate the defence in sexual offence and violence cases. This means that, subject to Charter

challenge [Canadian courts are split on whether s. 33.1 is constitutionally valid] extreme intoxication can

only be used for other kinds of offences. Be aware that nothing in s. 33.1 abolishes the defence of simple

intoxication – it limits only the defence of extreme intoxication.

R v Daviault - 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 had seven or eight beers during the day,

drank the rest of the 40-ounce bottle of brandy. 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 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.

Cory, writing for the majority, finds that voluntary intoxication can act as a defence in crimes of general

intent only if the intoxication was such that the person was in a state of automatism. Allowing people to be

convicted even though they were acting autonomously violates s.7 and s.11(d) of the   Charter . Allowing

convictions in these cases the court would essentially be substituting the intent to get drunk for the intent

to commit the crime, which is unfair.

Sopinka, in the dissent, argues that denying this defence is not contrary to the Charter. He does not think

that voluntariness to commit the actus reus of an offence is a principle of fundamental justice. He states

that automatism does not apply in cases where the accused has brought the state on by his or her own

fault. He holds that although the distinction between general and specific intent crimes is illogical for some

things, it makes sense for this – therefore the Leary rule applies and the defence of drunkenness does not

apply in cases of general intent.

The appellant, Mr. Bouchard-Lebrun, took some drugs, after which he and a friend broke into a building

to attack Mr. Lévesque, one of the residents. During the altercation, a neighbour tried to come to Mr.

Lévesque’s aid. Mr. Bouchard-Lebrun grabbed him and pushed him down some stairs, then went down

after him and stomped on his head several times. Mr. Bouchard-Lebrun was charged with attempt to

break and enter, breaking and entering, assault and aggravated assault. At trial, Mr. Bouchard-Lebrun

claimed that when he had committed the acts, he had been in a psychotic state caused by his friend’s

influence over him, and he raised the defence of self induced intoxication. In light of the expert evidence,

the Court of Québec held that the psychosis had been caused by his drug use. It acquitted him on the

counts of breaking and entering and attempt to break and enter on the basis that owing to his mental

state, he had been unaware of the consequences of his actions. However, it convicted him of aggravated

assault and assault, because s. 33.1(3) provides that self induced intoxication is not a defence to such

offences. On appeal, Mr. Bouchard-Lebrun raised the defence of “mental disorder” provided for in s. 16

Cr.C. The Quebec Court of Appeal dismissed the appeal of the verdict and the motion for leave to appeal

the sentence. It held that Canadian courts have held that the defence of mental disorder is not available

to an accused suffering from psychosis induced by drug use in circumstances similar to those in this

case.

33.1 applies when (1) the accused was intoxicated at the material time (2) the intoxication was self

induced and (3) the accused departed from the standard of reasonable care generally recognized by

society by interfering or threatening to interfere with the bodily integrity of another person

S1 could save the violations because they are responding to the possibility that it could result in a

complete acquittal

Involuntary Intoxication – R v King – a defence for general intent offence of impaired driving if accused

did not know that the substance might impair, but also that the accused could not reasonably know that

the substance would impair.

Defence of the Person – a justification

The self-defence provisions in the Criminal Code were amended in March of 2013, to replace defences

which were widely seen as excessively technical and badly drafted – s34 the omission of the concept

of justification in the new section is consistent with recent developments in self-defence especially in the

context of battered women.

(a) an honest but reasonable mistake is not fatal to defence

R v Lavallee - Lavallee and her common law partner Rust (the victim) 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 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.

Wilson, writing for a unanimous court, vehemently disagrees. After going into the history of spousal abuse

and the effects that it has on the women who are abused, she held that expert evidence is very much

admissible and helpful in establishing the necessary elements were present for s.34(2) to provide a

defence. This section requires the accused to have reasonably believed that she was in danger, and that

she had no other option to stop it other than causing death or grievous harm.

This expert testimony helps prove that the defence was not too far removed temporally, or too violent to

have been reasonable in the circumstances. Therefore, the trial judge did not err in allowing Dr. Shane's

testimony to be used as evidence available to the jury.

Ratio

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 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.

Necessity

The defence of necessity permits the conduct of the accused to be excused where its elements are met.

The defence is heavily circumscribed.

R. v. Latimer (2001)—whether jury should have been allowed to consider defence of necessity. The

accused must establish:

-  Imminent peril or danger: disaster must be imminent, or harm unavoidable. The accused did not

himself face any peril, and T's ongoing pain did not constitute an emergency in this case. T's proposed

surgery did not pose an imminent threat to her life, nor did her medical condition (cerebral palsy). It was

not reasonable for the accused to form the belief that further surgery amounted to imminent peril,

particularly when better pain management was available Must be on the verge of transpiring and virtually

certain to occur, foreseeable s 7 violation probable here

-  No reasonable legal alternative to the course of action: given the accused had to act, could he

nevertheless realistically have acted to avoid peril or prevent harm without breaking the law? the

accused had at least one reasonable legal alternative to killing his daughter: he could have struggled on,

with what was unquestionably a difficult situation, by helping T to live and by minimizing her pain as much

as possible or by permitting an institution to do so

-  Proportionality between the harm inflicted and the harm avoided. The harm inflicted in this case

(death) was immeasurably more serious than the pain resulting from T's operation which the accused

sought to avoid. Killing a person -- in order to relieve the suffering produced by a medically manageable

physical or mental condition -- is not a proportionate response to the harm represented by the non-life-

threatening suffering resulting from that condition. The judge was correct to remove the defence of

necessity form the consideration of the jury because there was no air of reality to any of the required

elements of the defence.

(1) and (2) are modified objective tests while (3) is purely objective.

Duress

The defence of duress is available under section 17 of the Criminal Code and at common law. Section 17

identifies a limited defence, but the common law and Charter have been used to extend its application.

R v Hibbert - On November 25, 1991, Cohen, a friend of the appellant, was shot four times in the lobby of

his apartment building. The appellant had called for his friend Cohen to come downstairs from his

apartment at which point another man, Bailey, shot Cohen four times when he came downstairs. Hibbert

contends that he only acted the way he did (in calling Cohen downstairs) because Bailey threatened him

and therefore the defence of duress should apply. Hibbert was acquitted of attempted murder at trial but

convicted of aggravated assault; his appeal on the conviction was dismissed by the Court of Appeal, but

his sentence was reduced – appeal allowed, new trial

Ratio : Section 17 only applies to principal actors in crimes; the common law defence of duress applies to

secondary actors.

Duress may be used as a defence either to negate mens rea or as an excuse-based defence under s.

17 or the common law defence of duress; the defence can always apply, but whether or not the coercion

will mean that the mens rea is not present will depend on the particular charge and facts of the case.

The common law defence only requires you to determine if the accused had a "reasonable legal

alternative" using a modified objective test.

R v Ruzic - Ruzic was a 21 year old woman from Belgrade, Yugoslavia. A street thug approached her

while she was walking her dog in Belgrade and threatened to kill her mother if Ruzic did not do as he

asked. He knew everything about her, although she didn't know who he was. She was provided with a

false Austrian passport and had three packages of heroin strapped to her body and was told to fly to

Toronto and deliver the heroin to a restaurant. She was arrested upon arriving in Canada and was

charged with possession of a false passport and importing narcotics. At trial she successfully challenged

the constitutionality of s.17 of the   Code  and raised the common law defence of duress and was acquitted.

The Crown's appeal was dismissed.

LeBel, writing for a unanimous court, holds that as Ruzic is the primary actor s.17 does apply to her.

However, she has a problem because the person who made the threats is halfway around the world. She

argues that the requirement that the threat be immediate and present is too limited and that it violates s.7

of the   Charter . She argues that she is still acting involuntarily despite the fact that the person making the

threat is so far away. The court accepts this, and says that moral voluntariness is a principle of

fundamental justice protected under s.7; it is required for criminal liability. The court therefore states

that s.17is unconstitutional in part because of this violation, but they do not specifically address which

parts are unconstitutional (immediacy of death or bodily harm)

LeBel then lays out the common law rules for duress, which state that the threat only has to be made to

yourself or someone else (not included in s.17). It does not talk about the threat needing to be immediate.

It also requires no easy route of legal escape but does require a close temporal connection between the

threat and the harm. They say that she meets these requirements, despite the fact that it seems like she

had lots of ways out, and the appeal is dismissed.

Common Law Duress Elements:

-  A threat to the integrity of the person: the law includes a requirement of proportionality between the

threat and the criminal act executed. The accused should be expected to demonstrate some fortitude to

put up a normal resistance to the threat - 1)reasonable belief in threats of death or bodily harm

-  2) The threat must deprive the accused of any safe avenue of escape in the eyes of a reasonable

person, similarly situated. Although the threat need not be immediate, there must be a close

temporal connection between the threat and the harm threatened (the threat had to a be a real threat

affecting the accused at the time of the offence—no immediacy)

-  3) proportionality - Threats need not be made by a person who is at the scene of the crime (no

presence requirement) When the duress defence is raised and there is some evidence to support

it, the burden is on the Crown to show beyond a reasonable doubt that the accused did not act

under duress.The law does not require an accused to seek the official protection form the police

in all cases before the defence can succeed

R v Ryan 2013 - Nicole Doucet Ryan (now Nicole Doucet) alleged that she was subject to repeated

abuse and torment by her husband, Michael Ryan. At trial, the trial judge accepted she was subject to

such abuse. The husband was never called to testify. In September 2007, Ms. Doucet began to think

about having her husband murdered. Over the course of the next seven months, she spoke to at least

three men whom she hoped would kill him. In December 2007 or January 2008, she paid one man

$25,000 to carry out the killing, but he then refused, demanding more compensation. She approached

another person and was contacted by a third, an undercover RCMP officer, posing as a “hit man”. On

March 27, 2008, she met with this individual and agreed to pay him to kill her husband. The agreed upon

price was $25,000, with $2,000 paid in cash that day. The killing was to take place the coming weekend.

Later that same night, she provided an address and a picture of her husband to the “hit man.” Shortly

after, she was arrested and charged with counselling the commission of an offence not committed

contrary to s. 464(a) of the Criminal Code, R.S.C. 1985, c. C-46.

At trial, there was no issue that the elements of the offence had been proved and the trial judge, Farrar J.

(as he then was), indicated that he was satisfied beyond a reasonable doubt that the requisite elements of

the offence of counselling the commission of an offence had been established. He based this conclusion

on the Ms. Doucet’s admission that the Crown had proved a prima facie case and on the audio and video

tapes of recorded conversations with the undercover officer and a statement made on arrest. The only

issue at trial was whether Ms. Doucet’s otherwise criminal acts were excused because of duress. The

accused had raised that the common law defence of duress applied. The Crown argued that on the facts

of this case, the components of duress were not present. But it did not argue at trial, as it did later on

appeal, that the defence of duress was not available in law to the accused. The trial judge accepted her

version and acquitted her on the basis she had established she was acting under duress.

The Nova Scotia Court of Appeal unanimously upheld her acquittal.

The Court unanimously allowed the Crown appeal. The majority entered a stay while the dissenting judge,

Fish J., would have ordered a new trial, leaving it to the Crown to determine whether a retrial was in the

public interest.

The Court accepted the facts found by the trial judge. The only issue was whether the defence of duress

was available. The Court accepted the Crown’s argument, which was made for the first time, that duress

was not available. Duress is available when one is compelled to commit a crime against an innocent third

party. In this case, given the facts found by the trial judge, the husband would not be an innocent victim.

Rather he would be the author of his own misfortune. Moreover Ms. Doucet was never compelled to act

as she did. The Court alluded to the possibility of invoking self-defence as a possible defence.

Fish J. found the granting of the stay of proceedings was inappropriate. He would have ordered a new

trial. Any further defence advanced by the accused could be made then.

Provocation

The defence of provocation applies solely to the offence of murder. It is a partial defence, reducing

convicton to manslaughter where its elements are met. “the ordinary person should only be modified to

place the act or insult in context but not to shift the ordiary person standard to suit the individual accused”

R v Tran - On February 10, 2004, Thieu Khan Tran found his estranged wife in bed with her new

boyfriend. Tran stabbed the man to death.

The Supreme Court of Canada decided that the trial judge had erred in law in finding that there was

evidence to substantiate the defence of provocation. There was no insult. Tran knew his wife was

involved with another man.

He suspected his wife was involved with another man. Therefore, it cannot be said that the discovery,

“struck upon a mind unprepared for it.” There is a difference between vengeance and provocation.

(1)  Provocation occurs if the person who committed the act did so in the heat of passion caused

by sudden provocation (both the insult and the act of retaliation).

(2)  Requires the examination of a mix of subjective and objective factors when determining if a

wrongful act or insult constituted provocation. OBJECTIVE: whether the wrongful act or insult is of

such a nature as to be sufficient to deprive an ordinary man of self control (sex, race, age may be

considered for “ordinary person”- homophobia and sexism should not be considered). SUBJECTIVE: the

accused did act on the provocation and did so before there was time for his passion to cool

(background, temperament, idiosyncrasies or drunkenness of the accused may be considered). The

requirement of suddenness must apply to both the provocation and to the accused’s reaction to it.

(3)  Whether a particular act or insult amounted to provocation and whether the accused was

deprived of his self-control as a result of the provocation are questions of fact.

“legal right” interpretation could continue to deny women equal protection and benefit of the law in

that it applies only to legal rights authorized by law and not freedoms

Entrapment

Entrapment is a common law defence that applies even where the accused has committed a crime with

the required fault. It results in a stay of proceedings in cases where a state agent has provided the

accused with an opportunity to commit a crime without either a reasonable suspicion that the accused

was involved in crime or a bona fide inquiry into a particular type of crime in a high crime area.

Alternatively even if there is a reasonable suspicion or a bona fide inquiry, entrapment will apply and

result in a stay of proceedings if the state agent induces the commission of the crime.

R. v. Mack, [1988] 2 S.C.R. 903 -

In 1980, Norman Mack was arrested and charged with drug trafficking. At the trial he testified that over a

six-month period Momotiuk, a drug user, had asked Mack several times to provide him with drugs. Mack,

who had a number of previous drug convictions, gave up narcotics in 1979, and he did not wish to return

to his former lifestyle. Mack was unaware that Momotiuk was a police informer. Momotiuk continued to

ask Mack to get him some drugs. On one occasion, while he and Mack were walking in a remote part of

the woods, he produced a pistol and saying, “A person could get lost.” Mack testified he felt threatened by

that remark. On another occasion, Momotiuk asked Mack to come to a hotel. Mack testified he went to the

hotel because he was terrified of Momotiuk. At the hotel, Mack met other members of an illegal drug

syndicate. Mack was shown a briefcase containing $50 000 and told the money was for the purchase of

drugs. The person who showed Mack the money was an undercover police officer. Momotiuk again asked

Mack to supply him with some drugs and Mack went to a supplier he knew and bought a sample of drugs

to take back to Momotiuk. Momotiuk liked the sample and asked Mack to buy as much of the drug as he

could. The following day Mack had still not bought the drugs and he testified that, at this point, he was told

to “get his act together” in a threatening way. Mack bought 340 grams of cocaine and was later arrested

and charged with drug trafficking.

At the close of his defence, Mack brought an application for a stay of proceedings, asking the judge to

stop the trial on the basis of entrapment. The application was refused and Mack was convicted of

trafficking in drugs. His appeal was dismissed by the Court of Appeal and Mack appealed to the Supreme

Court of Canada.

In reaching its decision, the Supreme Court of Canada acknowledged that in an investigation for drug

trafficking, traditional investigation devices cannot always be used. However, in this case, the police went

beyond merely providing the accused with the opportunity to commit an offence. The threatening manner

in which the informant acted toward the accused when he would not become involved in drug dealing and

the number of times the informer approached the accused to become involved was unacceptable. The

Supreme Court of Canada found that entrapment had occurred and it allowed the appeal.

Ignorance of the Law

The general rule, that ignorance of the law is no excuse, is reflected in s 19 of the Criminal Code. This

general principle is subject to exceptions in limited circumstances. In particular, when “colour of right” is

specified to be relevant, a mistake about the law can be relevant. Further, the Supreme Court of Canada

has created the common law defence of “officially induced error”.

Lilly v the Queen - Appellant, a licensed real estate broker, was convicted of theft of $26,759.58, 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 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”.

Held: The appeal should be allowed and a new trial ordered.

In his charge, the trial judge misdirected the jury. The fate of the appellant’s defence of colour of right was

not dependent upon the jury determining when the commissions were payable. Rather, the defence was

dependent upon whether the jurors were satisfied beyond a reasonable doubt that the appellant had not,

at the time of the transfers, an honest belief that he had the right to that money, and not, as they were

told, dependent upon what they thought his rights were. Further, the conviction cannot stand for it was

impossible to know whether the conviction stood solely on those transactions that did not raise the

defence of colour of right.

R v Jones - The appellants were charged with unlawfully conducting a bingo contrary to s. 206(1)(d) of

the Criminal Code. The charges arose out of gaming operations at the Shawanaga Reserve, which were

initiated under three Band Council resolutions signed by the appellants as Chief and Councillor of the

Shawanaga First Nation. Before conducting the lotteries, the appellants had been 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. In addition to the

constitutional questions dealt with in R. v. Furtney, [1991] 3 S.C.R. 000, this appeal also raises the issue

of whether the appellants were entitled to be acquitted by reason of a defence of colour of right. That right

was the belief that s. 206 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.

Held: The appeal should be dismissed.

The defence of colour of right does not apply to a charge under

s. 206(1)(d) of the Code. First, no authority was cited for the proposition that colour of right is relevant to

any crime which does not embrace the concept within its definition. Second, appellants' mistake was one

of law, rather than of fact. They mistakingly believed that the law did not apply because it was inoperative

on Indian reserves. A mistake about the law is no defence to a charge of breaching it.

11/1/2013 5:22 PM

The Adversarial Process

As indicated, a trial is the opportunity for the Crown prosecutor to prove the specific allegation made in

the charge (information or indictment) beyond a reasonable doubt. The key characteristic of the Canadian

criminal trial is therefore the specific allegation.

The Presumption of Innocence and the Ultimate Standard of Proof – At a Canadian trial, the accused

is presumed to be innocent, a right guaranteed by s.11(d) of the Charter. This means that ultimately, at

the end of the whole case, the Crown must prove the guilt of the accused beyond a reasonable doubt.

This is the Crown’s ultimate burden in both a criminal or regulatory prosecution.

R v Lifchus - Lifchus was a stockbroker who was accused of fraud and theft. He was convicted of one

and acquitted of the other. He appealed on the basis that the judge did not properly explain the burden of

proof to the jury. He said that "beyond a reasonable doubt" is simply an everyday idea and that everyone

understands it - a "plain language" approach. The Court of Appeal allowed the appeal ordering a new

trial, which the Crown appealed.

Cory, writing for the majority, agrees that this was not the correct way to describe "beyond a reasonable

doubt" to a jury, because it is not simply the plain understanding of it. He gives a list of things to include in

a charge: the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle

fundamental to all criminal trials, the presumption of innocence;

the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

a reasonable doubt is not a doubt based upon sympathy or prejudice, rather, it is based upon reason and

common sense;it is logically connected to the evidence or absence of evidence;

it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or

frivolous doubt; and more is required than proof that the accused is probably guilty -- a jury which

concludes only that the accused is probably guilty must acquit;and a list of things not to include:

describing the term as an ordinary expression which has no special meaning in the criminal law context;

inviting jurors to apply to the task before them the same standard of proof that they apply to important, or

even the most important, decisions in their own lives;

equating proof "beyond a reasonable doubt" to proof "to a moral certainty;

qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or

"haunting", which may mislead the jury; and instructing jurors that they may convict if they are "sure" that

the accused is guilty, before providing them with a proper definition as to the meaning of the words

"beyond a reasonable doubt".

R v Starr - In August 1994, Bernard Cook and Darlene Weselowski were drinking with Robert Dennis

Starr in a hotel near Winnipeg. In the late hours of the night Starr parted ways with Cook and Weselowski.

Together, Cook and Weselowski were approached by Jodie Giesbrecht, a sometimes girlfriend of Cook.

During an ensuing conversation Cook told Giesbrecht that he could not go with her that night because he

had to "go and do anAutopac scam with Robert", as he had been given $500 for wrecking a car for

insurance purposes.

A few hours later the bodies of both Cook and Weselowski were found on the side of a nearby highway.

They had been shot in the head. Starr was arrested in connection with the murders.

At trial, the Crown advanced the theory that the murders were gang-related, where Starr had used the

insurance fraud scam as a means to get Cook into the countryside to murder him. The case hinged on the

testimony of Giesbrecht and the statement she heard from Cook that night.  The Court held that the judge

failed to properly instruct the jury on the standard of proof. The judge should have placed “beyond a

reasonable doubt” between absolute certainty and “balance of probabilities”.

R. v. S.(J.H.), (2008)— Where credibility is a central issue in a jury trial, the judge must explain the

relationship between the assessment of credibility and the Crown's ultimate burden to prove the

guilt of the accused to the criminal standard. A general instruction on reasonable doubt without

adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a

possibility of confusion or misunderstanding.Lack of credibility on the part of the accused does not

equate to proof of his or her guilt beyond a reasonable doubt. The trial judge explained that even if

the jury did not accept all of the accused's testimony, they could still accept some of it. She also explained

that any reasonable doubt must be resolved in favour of the accused and, in that context, she reminded

the jury that they must consider all of the evidence when determining reasonable doubt. This was

sufficient.

Other Burdens – While the Crown prosecutor must prove guilt beyond a reasonable doubt at the end of

the case, there are other burdens of proof that operate during the criminal process. There are “evidential”

burdens that some rules of law impose in order for a party who wishes a matter to be placed in issue to

succeed in having that matter placed in issue. For example, if at the end of the Crown’s case in chief the

defence argues that there is no “case to meet” and requests a “directed verdict of acquittal” the judge will

evaluate whether the Crown has shown a prima facie case. This is the same standard that applies where

the accused is entitled to and requests a preliminary inquiry to determine whether there is a case to

answer; the preliminary inquiry judge will discharge the accused unless the Crown can show a prima facie

case.

R v Arcuri - The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code

is the same as that asked by a trial judge considering a defence motion for a directed verdict,

namely, “whether or not there is any evidence upon which a reasonable jury properly instructed

could return a verdict of guilty” . Under this test, a preliminary inquiry judge must commit the accused

to trial “in any case in which there is admissible evidence which could, if it were believed, result in a

conviction”. The nature of the judge’s task, however, varies according to the type of evidence that the

Crown has advanced.  Where the Crown’s case is based entirely on direct evidence, the judge’s task is

straightforward.  By definition, the only conclusion that needs to be reached in such a case is

whether the evidence is true. It is for the jury to say whether and how far the evidence is to be believed.

Thus if the judge determines that the Crown has presented direct evidence as to every element of the

offence charged, the judge’s task is complete.  If there is direct evidence as to every element of the

offence, the accused must be committed to trial. The judge’s task is somewhat more complicated

where the Crown has not presented direct evidence as to every element of the offence.  The

question then becomes whether the remaining elements of the offence – that is, those elements as to

which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial

evidence.  Answering this question inevitably requires the judge to engage in a limited weighing of

the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the

evidence and the matter to be established – that is, an inferential gap beyond the question of whether the

evidence should be believed. The judge must therefore weigh the evidence, in the sense of

assessing whether it is reasonably capable of supporting the inferences that the Crown asks the

jury to draw.  This weighing, however, is limited.  The judge does not ask whether she herself would

conclude that the accused is guilty.  Nor does the judge draw factual inferences or assess credibility.  The

judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. 

Even the accused must at times satisfy an evidential burden in order to have a matter placed in issue.

Indeed, if the accused wants to have a defence considered, the accused must show that the defence has

an “air of reality” to it. If the accused succeeds, the judge must consider the defence, and in a jury trial

must direct the jury on the law that applies to that defence.

R v Cinous, 2002 SCC 29 

Facts: 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 store. When came back saw an opportunity and shot X and Y

Issue(s): Is there an air of reality to the defence of self-defence?

Ratio: 

Air of reality – whether there is evidence on record upon which a properly instructed jury acting

reasonably could acquit.

→ Must be some evidence on all 3 elements of the defence of self-defence to give it to the jury

→ Both a subjective and an objective elements (no a modified test)

Analysis: 

Elements:

*Unlawful attack, (C has this, both objective and subjective)

*Reasonable apprehension of harm and death, and (C has this both ob and sub)

*Reasonable apprehension of no alternative to not be hurt or killed (this is wear 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.

whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could

acquit if it believed the evidence to be true. The trial judge considers the totality of the evidence, and

assumes the evidence relied upon by the accused to be true. Re (1): "no evidence", "some evidence" or

"any evidence" can be used to describe the applicable evidential standard, provided these terms are

understood as elliptical references to the full question. Re (2): whether the evidence put forth is

reasonably capable of supporting the inferences required to acquit the accused. This is the current state

of the law, uniformly applicable to all defences (all elements of positive defences must meet “air of reality”

test).

R. v. Fontaine (2004)—“reverse onus” defences require evidential, not persuasive burden.

“Reverse onus provisions” are presumptions deeming the fact to exist where the Crown proves

the basic fact (persuasive burden—matter of fact). The presumption is rebuttable by a “balance of

probabilities” (evidential burden—question of law)

It is not necessary that the relevant evidence be believed in order for the defence to succeed—an

accused is entitled to be acquitted on the basis of exculpatory evidence that the jury does not reject but

either accepts or about which it is undecided (BOP—lower standard of proof).In the case of "reverse

onus" defences, such as mental disorder automatism, it is the accused who bears both the persuasive

and the evidential burdens. In these defences, the persuasive burden is discharged by evidence on the

balance of probabilities.

There are numerous rules of evidence called “presumptions” that operate to assign burdens of proof on

the accused. A presumption is a rule of law that directs judges and jury to assume that a fact is true

(known as the “presumed fact”) in any case where the Crown proves that another fact is true (known as

the “basic fact”), unless the accused can rebut the presumed fact according to the assigned standard of

proof. Those presumptions known as “mandatory presumptions” can be rebutted by the accused simply

raising a reasonable doubt about whether the presumed fact follows from the basic fact. Where a

mandatory presumption is rebutted, the “presumed fact” falls back into issue notwithstanding the

presumption, and must be proved by the Crown in the ordinary way, without the assistance of the

presumption.

Other presumptions operate as “reverse onus provisions,” deeming the presumed fact to exist where the

Crown proves the basic fact unless the accused disproves the presumed fact on the balance of

probabilities. A presumption can be easily recognized as a “mandatory presumption” because the legal

rule raising the presumption will use the term “evidence to the contrary” to describe the burden of rebuttal.

A presumption will be interpreted as a “mandatory presumption” where it fails to set out the required

standard of rebuttal because of s. 25 (1) of the Intepretation Act. Many presumptions operate in alcohol

driving prosecutions and are used to determine whether the accused has more than a legal amount of

alcohol in his blood while driving or having care or control of a motor vehicle: See, for example, s. 258 (1)

(a), [a reverse onus provision] and ss. 258 (1) (c), (d.1) and (g), all mandatory presumptions.

Presumptions are prima facie contrary to the Charter and must be saved under s. 1.

R. v. Oakes (1986)—burden to rebut a presumptionA presumption is a rule of law that directs

judges and jury to assume that a fact is true (known as a “presumed fact”) in any case where the

Crown proves that another fact is true (known as the “basic fact”), unless the accused can rebut

the presumed fact according to the assigned standard of proof.Mandatory presumptions are

recognized by the term “evidence to the contrary” (burden of rebuttal) and can be rebutted simply

by raising a reasonable doubt about whether the presumed fact follows from the basic fact.

In criminal cases, legal presumptions are often in tension with the presumption of innocence—a

provision that requires an accused to disprove on a BOP the existence of a presumed fact violates the

presumption of innocence. If an accused bears the burden of disproving an element of the offence,

it would be possible for a conviction to occur despite the existence of a reasonable doubt. This

would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his innocence

but did not convince the jury on a BOP that the presumed fact was untrue

The Neutral Impartial Trier - Another critical component of the adversarial system is the presence of a

neutral, impartial trier of law (to make legal decisions) and a neutral impartial trier of fact (to make factual

findings at the end of the trial). In Canada, more than 95% of all criminal trials are conducted by a judge

alone, so the judge performs the role both of the trier of law and the trier of fact. Where there is a jury trial,

the judge acts as the trier of law, and the jury as the trier of fact. This means that the judge makes all

legal and procedural decisions during the trial, and directs the jury by training them in the law that applies.

The jury then makes the factual decision and renders the holding. In Canada the appropriate sentence is

a question of law, and therefore sentencing is done by the judge and not by the jury. Indeed, the jury

should not be told of the possible sentences for fear that this will inspire a sympathetic rather than a legal

verdict. Requiring the judge to remain neutral and impartial does not require the judge to remain passive.

This is especially so in the case of a self- represented accused, where a trial judge has a duty to see to it

that the accused’s fair trial right is respected. Still, the essence of the adversarial system is that the

parties initiate the proof that is brought forward, not the judge.

R. v. Gunning (2005)—separation between judge and juryIt is a basic principle of law that on a trial by

judge AND jury, it is for the judge to direct the jury on the law and to assist in their consideration of the

fact. But, it is for the jury to decide whether, on the facts, the offence has been proven.The trial judge

must not remove the decision from the jury by instructing them to convict. Such an instruction

violates an accused’s s. 11(f) right to trial by jury.

R. v. Hamilton (2004)—judge interference in sentencingThe trial judge concluded, based on his own

materials and experience, that Hamilton and Mason were the victims of systemic racial and gender bias

which led to their impoverished circumstances and made them vulnerable to those seeking cocaine

couriers. He found that this was a factor which mitigated the sentences they received.Sentencing aims

at imposing a sentence that reflects the circumstances of the specific offence and the attributes of

the specific offender. Factual findings that are germane to the determination of the appropriate sentence

and are not properly the subject of judicial notice must be supported by the evidence. There was no

evidence to support the judges findings. The trial judge stepped outside of the proper role of a judge on

sentencing and ultimately imposed sentences that were inconsistent with the statutory principles of

sentencing and binding authorities from this court.

The Role of the Prosecutor - The prosecutor is an advocate, but also a quasi-judicial officer. This means

that the prosecutor cannot act solely as an advocate, but must make decisions in the interests of justice

and the larger public interest, including the interests of the accused. The prosecutor has many

discretionary decisions that can be made and should act as a “minister of justice.”

Boucher -v- The Queen; 1954

The prosecutor in a criminal case has a duty to act impartially with no notion of winning or losing.

Krieger v. Law Society of Alberta (2002)—Prosecutorial discretion is not reviewable except in cases

of flagrant impropriety.Because prosecutors must be members of the Law Society, they are subject to

the code of professional conduct—all conduct not protected by prosecutorial discretion is subject to the

conduct review process.

Disclosure of relevant evidence is a matter of prosecutorial duty, and transgressions related to

this duty constitute a very serious breach of legal ethic

R v Nixon, 2011 SCC 34

The case makes an important contribution to refining the scope of prosecutorial discretion, and the proper

test for abuse of process under s. 7.

Facts and Judicial History - The appellant was charged with several offences, including dangerous driving

causing death, dangerous driving causing bodily harm, and separate impaired driving offences. Due to

perceived evidentiary issues, the Crown attorney entered into a plea agreement with Nixon, where the

more serious charges were dropped and she agreed to plead guilty to the lesser charge of careless

driving. When the Acting Assistant Deputy Minister (ADM) became aware of the plea bargain, he found

that Crown counsel erred in evaluating the strength of the prosecution case, and decided that the plea

agreement was not in the best interests of justice. As a result, the ADM instructed Crown counsel to

withdraw from the resolution of the agreement and to proceed to trial on the dangerous driving offences.

Nixon brought an application under s. 7 of the Charter claiming that the Crown’s repudiation of the

agreement amounted to an abuse of process in breach of her rights, and requested a court order that the

Crown abide by its terms. The application was successful. The Crown successfully appealed to the Court

of Appeal for Alberta; Nixon appealed to the Supreme Court of Canada. The appeal was dismissed.

Issues

At the Supreme Court, two main issues were in dispute: first, whether the decision to repudiate the plea

agreement was a matter of “prosecutorial discretion”, reviewable only for abuse of process, or whether it

fell within the ambit of “tactics and conduct before the court”; second, whether the correct test for

determining an abuse of process should focus on the reasonableness of the initial plea bargain, or

whether it should focus on the circumstances of the repudiation.

Holding

The Supreme Court held that the decisions to enter and to repudiate a plea agreement are exercises of

prosecutorial discretion, subject to judicial review only for abuse of process. For such a decision to qualify

as abuse of process under s. 7, it must amount to either (1) prosecutorial conduct affecting the fairness of

the trial, or (2) prosecutorial conduct that contravenes fundamental notions of justice. The decision to be

assessed for abuse of process is the decision to repudiate the plea agreement.

The Role of the Defence - The defence counsel is an officer of the court, and therefore must be

respectful and honest with the court and must not attempt to mislead the court as to the state of the law.

Subject to this and the rules of law and ethics, the defence counsel is obliged to act solely in the interests

of the accused, advising the accused on the implications, and propriety, of pleading guilty, securing

advantage of all procedural and constitutional protections available to the accused that are not properly

waived; and if the accused pleads not guilty, preparing the case fully, challenging the sufficiency of

prosecutorial evidence, and advancing all defences that properly arise.

THE CRIMINAL INVESTIGATION

Police Powers

Police officers are independent of the Crown prosecutor in Canada. This independence is important to

permit the prosecutor to act as a quasi-judicial officer, and not get too close to the mind-set of an

investigator. Still, the police will often seek legal advice from Crown prosecutors, including on the wording

of search warrants and the like. In the interests of securing liberty, the powers of the police are

constrained by law, although can be derived from statute, common law and by implication from statute

and common law.

Police powers are also significantly limited by the Charter, most significantly s. 8 (unreasonable search or

seizure) and s. 9 (arbitrary detention). Courts have undertaken a careful balancing of police powers in an

attempt to ensure respect for liberty, without undermining the effectiveness of police investigations and

law enforcement. The law of evidence supports limits on police powers. Although not covered in this

examination, individuals have the right to remain silent in their dealings with the police, what they say

cannot be admitted if it is not “voluntary.” Where there has been an unconstitutional search or arbitrary

detention, evidence that has been obtained as a result may be excluded from consideration. Police

officers also have significant obligations to perform in securing the right to counsel for the subject, again,

obligations that go beyond this examination.

Statutory powers: Includes powers allowing police to arrest an accused, compel an accused’s

appearance in court via a summon or appearance notice, use force, search suspects, etc.

Common law powers

- Historical powers

o Search incident to arrest for the purposes of ensuring safety, protection of evidence form destruction,

and discovery of evidence (Caslake). Strip searches incident to arrest (Golden—reasonable and probable

grounds to believe a strip search is necessary in the particular circumstances of the arrest.

o To enter into a private dwelling in hot pursuit (Feeney)- New common law powers can be created—

the “ancillary powers” doctrine (Waterfield): the SCC has relied on this doctrine to support police power in

a number of areas. There are problems with relying on this test because it was not intended to allow the

creation of new common law powers.

o Does the conduct (police) fall within that general scope of any duty imposed by statute or

recognized at common law?

o Does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of

powers associated with the duty.

-  Consent

-  Default common law powers: police have the power to do anything that will not result in some remedy

being granted to an accused.

b. Powers of search and seizure: the ability of police to interfere with the liberty of individuals is most

evident in the powers of search and seizure

The law in this area attempts to balance individual interests (i.e. liberty) with interests of the state.

Search: Investigative techniques are searches depending on whether it infringes on a persons

reasonable expectation of privacy.

NOTE: analyze searches with warrant and searches without warrant separately.

Searches With a Warrant.- Searching places: general search warrant provision is found in s. 487

o May be issued by a justice—justice must be satisfied of more than the possibility that evidence will be

found. The justice must be given facts that show the basis for the reasonable and probable

grounds and not simply be satisfied that the police officer in fact has such a belief. (which must fall

into 4 categories)

§  Anything on or in respect of which an offence has been committed

§  Anything that will provide evidence regarding an offence or the location of a person suspected of

committing an offence

§  Anything reasonably believed to be intended to be used to commit an offence for which the person

could be arrested without warrant (offence related property), OR

§  The search must be related to a “building, receptacle or place”

o Limits to search warrant power—specificity as to what evidence is to be found.o Section 489 allows

police who are searching under a warrant to seize items not mentioned in the warrant if they believe on

reasonable grounds that they were obtained, or were used

in, or offered evidence concerning an offence

- Searching people: warrants for taking blood, saliva, etc.

o Only available for “designated offence” listed in s. 487.04 o Section 487.05—requirements for warranto

Basic requirements:

§  Provincial court judge must be satisfied by information on oath that a bodily substance connected

with an offence has been found,

§  That a person was a party to the offence, and

§  The DNA analysis of the substance will provide evidence about whether the bodily substance was

from that person

§  The judge is required to believe that the issuing of the warrant will be in the best interest of the

administration of justice

o If the DNA warrant concerns young people, the young person is to be informed of the right to a

reasonable opportunity to consult with and have the warrant executed in the presence of counsel, a

parent, or other adult.

- Reviewing a warrant:

o The Code contains no provisions to review a warrant, but it is possible to challenge the issuance of a

warrant by way of certiorari (review warrant issuance process)

o The central issue is whether the requirements for its issuance under the Code have been met.

o The question for the reviewing judge is whether there is evidence upon which the issuing judge could

have decided to issue the warrant (Garofoli). The actual result of the search is not relevant on review.

Searches without a warrant

-  Every warrantless search is prima facie unreasonable under s. 8 of the Charter—guarantee against

unreasonable search and seizure (Hunter v. Southam)

-  Every warrantless search must be made consistent with minimum Charter standards. TEST:

o Threshold issue: the individual searched must have a reasonable expectation of privacy over their

person, territory and information (if no reasonable expectation of privacy, no breach of s. 8)

§  Entitlement to privacy—not whether X had privacy—the standard of privacy that a person can expect

to enjoy in a free and democratic society (Wong)

§  Edwards factors (totality of the circumstances in search of apartment rented by the individual’s

girlfriend): presence at the time of the search, possession or control of the property or place searched,

ownership of the property or place, historical use of the property or item, ability to regulate access

(including the right to admit or exclude others), the existence of a subjective expectation of privacy,

objective reasonableness of the expectation.

§  3 kinds of interests that privacy protects: personal, territorial, informational (difficult to prove)

(Tessling).

§  Significance of a right to privacy on a sliding scale.

o Once determined that an individual has a reasonable expectation of privacy, then the

search was a prima facie violation of the accused’s s. 8 rights. The issue becomes whether the search

is reasonable, or whether is was an intrusion, in light of that expectation of privacy.

§  Sliding scale—the higher level of privacy expected, the higher the burden to prove the search

was reasonable.

§  Collins factors

Reasonableness of the search is generally determined by the Collins factors – have they been

met?

(a) Is the warrantless search authorized by law:

(i) Statute? (e.g. warrantless searches are authorized by s 487.11 (in relation to the s487 search

warrant power)

(ii) C/L? (i.e. search incident to arrest; search during investigative detention; exigent circumstances.

Here, if you are saying that there is a search incident to arrest, you would have to go through the

elements identified in the book, i.e., you would have to establish that: the arrest was lawful; the search

was truly incidental to that arrest and that the search was conducted in a reasonable manner)

(iii) Consent? Valid consent for purpose (Arp)

(b)Is the law reasonable? Redundant sometimes

(C)Is the manner in which the search is carried out reasonable? Collins – seizing throat in drug search not

reasonable; Thompson – wiretap of public phone at all times without restrictions was unreasonable

- NOTE: there are variations on the Hunter v. Southam standard—searches under an

administrative scheme and search of press offices have different ruleso Administrative—people in

regulated industries have a lower expectation of privacy.

o Press offices—considering s. 2(b) freedom of the press, whether the warrant should be issued turns

on whether the information can be attained from an alternate source, whether the search and

seizure would have a chilling effect on sources for media

Power of Detention at the Investigative Stage

-  “Detention” o Section 10(b) gives rights to people who are “detained” (right to counsel). The issue is

whether someone has been detained. One troubling context is police questioning—when does this qualify

as a detention and therefore give the detainees s. 10(b) rights?

-  Common law powers of detention

o Some powers of detention exist by statute. The ability to make breathalyzer demands and

routine traffic stops, and some aspects of customs searches are all legislative created detentions.

Common law detentions are more controversial (Dedman upheld RIDE program under Waterfield test as

a valid form of detention)

§  Investigative detention (Mann test): reasonable grounds for officer’s suspicion that individual is

implicate in criminal activity under investigation. The overall reasonableness of the decision to detain

must further be assessed against all of the circumstances – “a clear nexus between the individual to be

detained and a recent or on-going criminal offence.”

§  Police roadblocks

R. v. Grant (2009)—detentionIssue: Whether the accused’s ss. 9 and 10 rights against unlawful

detention were violated.Rule: Detention under ss. 9 and 10 of the Charter refers to a suspension of the

individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is

established either where the individual has a legal obligation to comply with a restrictive request

or demand OR, a reasonable person would conclude by reason of the state of conduct that he had

no choice but to comply.Analysis:Re: Detention: Considering (1) circumstance giving rise to the

encounter as they would reasonably be perceived by the individual, the accused was detained

before being asked the question that led him to disclose his possession of the firearm. (2) Considering

the nature of the police conduct, the sustained and restrictive tenor of the conduct after the direction to

the accused to keep his hands in front of him reasonably supports the conclusion that the officers were

depriving him of his choice as to how to respond. (3) Considering the particular characteristics of

circumstances of the individual where relevant, the power imbalance was obviously exacerbated by

the accused’s youth and inexperience. The evidence supports his contention that a reasonable person in

his position would conclude that his right to choose how to act had been removed by the police.Re:

Admissibility of evidence: the purpose of s. 24(2) is to maintain the good repute of the administration of

justice. Whether evidence should be excluded depends on weighing (1) the seriousness of the Charter

breach against (2) the impact of the breach on the accused, (3) societies interest in adjudicating on the

merits. Although there was a breach it was not serious, and the impact on the accused could have been

worse, but the adjudication of the case on the merits weighs significantly because the gun is highly

probative.Conclusion: The evidence of the firearm was obtained in a manner that breached the

accused’s rights under ss. 9 and 10(b) of the Charter. An unlawful detention is necessarily arbitrary, in

violation of s. 9. The officers acknowledge that they did not have legal or reasonable grounds to detain

the accused and his detention was therefore arbitrary. However, in the interest of adjudicating on the

merits the gun should be admitted into evidence.

R. v. Suberu (200)—timing of detention, right to counselIssue: At what point was the accused

detained giving rise to his right to be advised as to his rights? Rule: The police duty to inform an

individual of his s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an

investigative detention. Detention under ss. 9 and 10 of the Charter refers to a suspension of the

individual’s liberty interest by a significant physical or psychological restraint. Whether questioning has

crossed the line from general to focused interrogation amounting to detention is determined by an

assessment of all circumstances. Analysis: The accused was momentarily delayed when the police

asked to speak to him, ha was not subjected to physical or psychological restraint so as to ground a

detention within the meaning of the Charter. A reasonable person in the circumstances would have

concluded that the initial encounter was preliminary investigative questioning falling short of detention.

Conclusion: The accused’s right to counsel did was not engaged when the officer asked him to “wait a

minute” to answer some questions. [ stolen credit card purchases with associate] two underlying purposes

of s10(b): to allow person to obtain legal advice about rights and ii) to assist the person to regain personal

liberty asap – informing of right to counsel hinders (ii) according to Suberu

Power to break the law

-  Sections 25.1-25.4 of the Criminal Code permit designated police officers to break the law— protection

of particular officers form criminal liability in particular situations (most often in cases of undercover work)

o The officer must be investigating an offence or criminal activityo The officer must believe on reasonable

grounds that the act or omission is reasonably proportional to the nature of the offence or criminal activity

being investigated.

-  Limited by intentional or criminally negligent causing death or bodily harm, willful attempt to obstruct

justice, conduct violating the sexual integrity of an individual.

-  Must have written authorization or exigent circumstances (s. 25.1(9)—preservation of life or safety,

protect the identity of an undercover officer/informant, prevent imminent loss or destruction of evidence

for an indictable offence.)

R v Aucoin 2012 - 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 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 theCharter 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.

Held (LeBel and Fish JJ. dissenting):  The appeal should be dismissed.

Per Deschamps, Abella, Rothstein, Moldaver and Karakatsanis JJ.:  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.  Because the pat-down search was a prelude to securing A in the cruiser, the question that

arises is whether detaining A in this manner was reasonably necessary in the totality of the

circumstances.  The question is not whether the officer had the authority to detain the appellant in the rear

of the cruiser, but whether he was justified in exercising it as he did in the circumstances of this case.

The problem here arises from the shift in the nature and extent of A’s detention that flowed from the police

officer’s decision to secure A in the rear of his cruiser while he wrote up the ticket for the motor vehicle

infractions.  Those factors altered the nature and extent of A’s detention in a fairly dramatic way,

especially when one considers that the infractions for which he was being detained consisted of two minor

motor vehicle infractions.  The question is whether there were other reasonable means by which the

officer could have addressed his concern about A disappearing into the crowd.  The officer’s actions,

though carried out in good faith, were not reasonably necessary. Because A’s detention in the back of the

cruiser would have been unlawful, it cannot constitute the requisite basis in law to authorize the

warrantless pat-down search.

Nonetheless, the cocaine found on A was admissible into evidence under s.   24(2)  of the Charter.  There

were unusual circumstances that prompted the police officer’s conduct in this case and he acted in good

faith.  He attempted throughout to respect A’s rights.  He was not searching for evidence.  The search

was for reasons of officer safety and A’s safety.  These factors attenuate the seriousness of the breach.

Moreover, the law surrounding police policies in the detention context is still evolving.  Where the police

act in good faith and without deliberate disregard for or ignorance of Charter rights, as was the case here,

the seriousness of the breach may be attenuated.

R v Cole 2012 - The accused, a high-school teacher, was charged with possession of child pornography

and unauthorized use of a computer.  He was permitted to use his work-issued laptop computer for

incidental personal purposes which he did.  While performing maintenance activities, a technician found

on the accused’s laptop a hidden folder containing nude and partially nude photographs of an underage

female student.  The technician notified the principal, and copied the photographs to a compact disc.  The

principal seized the laptop, and school board technicians copied the temporary Internet files onto a

second disc.  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.  The trial judge

excluded all of the computer material pursuant to ss.   8  and 24(2) of the Canadian Charter of Rights and

Freedoms.  The summary conviction appeal court reversed the decision, finding that there was

no s.   8  breach.  The Court of Appeal for Ontario 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.

Held (Abella J. dissenting):  The appeal should be allowed.  The exclusionary order of the Court of Appeal

is set aside and the order of a new trial is affirmed.

 Per McLachlin C.J., and LeBel, Fish, Rothstein, Cromwell and Moldaver JJ.:  Computers that are

reasonably used for personal purposes — whether found in the workplace or the home — contain

information that is meaningful, intimate, and touching on the user’s biographical core.  Canadians may

therefore reasonably expect privacy in the information contained on these computers, at least where

personal use is permitted or reasonably expected.  Ownership of property is a relevant consideration, but

is not determinative.  Workplace policies are also not determinative of a person’s reasonable expectation

of privacy.  Whatever the policies state, one must consider the totality of the circumstances in order to

determine whether privacy is a reasonable expectation in the particular situation.  While workplace

policies and 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.  Accordingly, it is subject to state intrusion only under the authority of a reasonable law.

The police in this case infringed the accused’s rights under s.   8  of the Charter. While the principal had a

statutory duty to maintain a safe school environment, and, by necessary implication, a reasonable power

to seize and search a school-board issued laptop, the lawful authority of the accused’s employer to seize

and search the laptop did not furnish the police with the same power.

Unconstitutionally obtained evidence should be excluded under s.   24(2)  if, considering all of the

circumstances, its admission would bring the administration of justice into disrepute.  The conduct of the

police officer in this case was not an egregious breach of the Charter.  While the police officer did attach

great importance to the school board’s ownership of the laptop, he did not do so to the exclusion of other

considerations.  The officer sincerely, though erroneously, considered the accused’s Charter interests.

Further, the officer had reasonable and probable grounds to obtain a warrant.  Had he complied with the

applicable constitutional requirements, the evidence would necessarily have been discovered.  Finally,

the evidence is highly reliable and probative physical evidence.  The exclusion of the material would have

a marked negative impact on the truth-seeking function of the criminal trial process.  The admission of the

evidence would not bring the administration of justice into disrepute and therefore the evidence should not

be excluded.

Generally speaking, the decision to exclude evidence under s.   24(2)  should be final.  In very limited

circumstances however, a material change of circumstances may justify a trial judge to revisit an

exclusionary order.  In this case, the Court of Appeal invited the trial judge to re-assess the admissibility

of the temporary Internet files disc if the evidence becomes important to the truth-seeking function as the

trial unfolds.  Unconstitutionally obtained evidence, once excluded, will not become admissible simply

because the Crown cannot otherwise satisfy its burden to prove the guilt of the accused beyond a

reasonable doubt.

GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED

Securing Jurisdiction over the Accused and Interim Release

The police have specified powers to arrest individuals. So too do non-police officers. The common theme

in the relevant legal provisions is that arrest – taking physical control over the subject - is to be used as a

last resort when other measures available for ensuring the good conduct and attendance before the

criminal justice process are not practical or desirable. These less intrusive modes of securing attendance

include the appearance notice, the promise to appear, and the summons. Where an individual is arrested,

he or she must be released or given a bail hearing where it will be decided whether the individual should

be released absolutely, subjected to conditions of release, or held in custody pending the trial.

-  Judicial confirmation must occur before or after the arrest. An officer cannot unilaterally compel the

appearance of an accused in court. The decision must be confirmed by a judicial officer (typically a JP).

Confirmation can occur before or after arrest.

-  Must give notice to accused of reason for arrest—s. 10(a) Charter; s. 29

- part xvi is aimed at balancing legitimate state interest in prosecuting crime against individual freedom

 The least intrusive way is where an officer can show a justice that there are reasonable grounds to

believe that an accused has committed an offence, and consequently obtains a summons requiring the

accused to appear in court on a specific date—s. 507(1)(b)

-  Alternatively, the officer can first encounter a person on the street committing an offence and then

require that person to appear by means of an appearance notice, which must be confirmed by a justice

—ss. 510, 505, and 508(1)(b)

-  The most intrusive method is by taking physical control of the person (arrest), either after judicial

authorization or before.

-  “Arrest”—words of arrest accompanied either by touching of the person with a view to detention, or by

the person submitting to the arrest (Whitfield)

-  Break down the situations into arrest with warrant and without warrant

o With warrant: a warrant can only be issued after an information is laid—s. 507 (indictable offences), s.

795 (summary offences)

§  A justice who signs off on the information can either issue a summons or warrant requiring the

accused to attend before a justice to answer the charge.

§  A summons MUST be issued instead of a warrant unless to do so would not be in the interest of the

public—s. 507

§  Must give notice to the accused of reasons for arrest—s. 10(a) Charter

§  There are some other, less important rules for effecting the warrant

o Without warrant: ss. 494, 495

§ Section 494 applies to anyone (citizen’s power to arrest) if they find someone

committing an indictable offence, fleeing authorities if they reasonably believe an indictable offence was

committed.• Section 494(2) applies to property owner’s arrest power.

§  Section 494 applies to police officers

A police officer may arrest anyone who has committed an indictable offence or who, on reasonable

grounds, he believes has committed, or is about to commit, an indictable offence

Peace officers may arrest anyone he finds committing a criminal offence (apparently committing –Biron)

Peace officers may arrest a person if he reasonably believes that a warrant exists for the person’s arrest.

This section adopts a principle of restrain; essentially says that a for minor offences, officers are directed

not to arrest simply because an arrest power exists, rather to consider other factors as well. The officer

may arrest ony to (1) establish identity of accused, (2) secure or preserve evidence of or relating to the

offence, (3) prevent the continuation of repetition of an offence. Alternatively, officer may arrest if it is

evident accused won’t appear in court.

Principle of restraint is only a guideline.

§  Supporting powers: s. 25(1)—use of force in certain circumstances, s. 25(4)—use of force likely to

cause death or GBH permitted in certain circumstances, s. 529— special rules apply when entering a

home to make arrest.

• Officer is justified in using force necessary when making an arrest provided that there are reasonable

grounds to use that much force.

2. Where an individual is arrested, he must be released or given a bail hearing where it will be decided

whether the individual should be released or given a bail hearing where it will be decided whether the

individual should be released absolutely, subjected to conditions of release, or held in custody pending

trial.

-  Statutory Protections: s. 497 calls for officers who have arrested a person for one of the listed

offences in ss. 495(2)(a), (b), or (c)—less serious, summary conviction or hybrid offences—to release that

person on an appearance notice or summons unless grounds similar to those in s. 495(2)(d), or (e) apply

(i.e. believes that need to get ID, secure evidence, won’t appear in court)

-  Where the offender is NOT released, s. 503 applies—accused is to be brought before a JP to

consider the issue of release (must occur without unreasonable delay, an in any event, within 24

hours)o “Without unreasonable delay” is the key factor. Failure may result in an arbitrary detention

under s. 9 of the Charter.

-  Charter Rights: s. 10 of the Charter creates specific guarantees arising on arrest: (1) accused must be

informed promptly of the reasons for arrest, (2) must be informed of right to counsel. (a)informational

duties – standard caution of right to counsel – must give information about access to free schemes, re-

warning of the right if there is a substantial change, must not undermine the right by making disparaging

comments or plea bargains prior to counsel (b) Implementational duties – provide reasonable opportunity

to consult counsel in private, hold off questioning (Manninen example of violation) BUT only arise when

accused indicates wish to speak to counsel, can be waived with full knowledge (silence is not), can be

lost by not being diligent towards own rights(silence could lead to that)

-  Other Code arrest powers: several code provisions which authorize arrest in order to provide a

measure of compulsion to the judicial process. (e.g. if you fail to comply with finger printing requirements)

R. v. Hall (2002)—right to bailIssue: Was the accused properly denied bail?Rule: Section 515(10)(c) of

the Criminal Code allows a judge to deny bail in order to maintain confidence in the administration of

justice, or any other just cause being shown.Analysis: “On any other just cause being shown” confers

an open-ended judicial discretion to refuse bail. It is inconsistent with both s. 11(e) of the Charter, which

guarantees a right "not to be denied reasonable bail without just cause", and the presumption of

innocence. It is a fundamental principle of justice that an individual cannot be detained by virtue of a

vague legal provision. Parliament must lay out narrow and precise circumstances in which bail can be

denied. The impugned phrase is not justified under s. 1 of the Charter. Its generality causes failure of the

proportionality branch of the Oakes test. To the extent the phrase is inconsistent with the Charter, it is

void. The next phrase in s. 515(10)(c) ("without limiting the generality of the foregoing") is also void since

it only confirms the generality of the preceding phrase.Denial of bail "to maintain confidence in the

administration of justice" having regard to the factors set out in s. 515(10)(c) complies with s. 11(e) of

the Charter. The means chosen do not go further than necessary to achieve Parliament's purpose of

maintaining public confidence in the bail system and the justice system as whole. Parliament has hedged

the provision with important safeguards: a judge can only deny bail if satisfied that, in view of the four

specified factors and related circumstances, a reasonable member of the community would be satisfied

that denial of bail is necessary to maintain confidence in the administration of justice. The provision is not

overbroad but strikes an appropriate balance between the rights of the accused and the need to maintain

justice in the community.Conclusion: The bail judge in this case considered the relevant factors and held

that it was necessary to deny bail in order to maintain public confidence in the justice system. There is no

error in reasoning.

Compelling Appearance Without Arrest

Compelling Appearance When Charges Have NOT Been Laid (i.e. pre-charge)

-  If a peace officer decides that a person should be prosecuted, there are a number of ways to compel

that person to attend court BEFORE an information is laid and he is actually charges (most obvious

example is an arrest without warrant).

-  The Code also provides that a person may be required to attend court be means of an appearance

notice, a promise to appear or a recognizance.

-  Section 495(2): for less serious offences an officer should not necessarily use arrest powers. The

provision indicates that the officer issue an appearance notice instead, unless there is a good reason not

to.

-  If an officer arrested a person, the officer can decide after, under s. 497(1), to release that person with

the intention to compel appearance by means of a summons or appearance notice.

-  The release provisions, however, are not mandatory, and are merely guidelines (i.e. officer who fails to

comply with the section is still within their duty)

-  Before an accused’s first appearance an information must be laid before a justice (s. 505)

Compelling Appearance When Charges HAVE Been Laid (i.e. post-charge)

-  After laying of the information is completed, the justice will issue process in the form of either a

summons or a warrant for the arrest of the accused (if the charge is endorsed)

-  A summons is a document issued by the court commanding the accused to attend court at a specified

time and place

-  The choice between summons or arrest warrant lies in the discretion of the justice.

-  Section 507(4) directs the justice to issue a summons UNLESS there are reasonable grounds to believe

that a warrant is necessary in the “public interest”

The Bail Hearing

Where an individual is arrested, he must be released or given a bail hearing where it will be decided

whether the individual should be released absolutely, subjected to conditions of release, or held in

custody pending trial.

1. General Scheme: Release by Justice

-  Assumption that accused should be released pending trial and with few restrictions as possible

-  Section 515(1) directs that the justice shall order that the accused is released on an undertaking

without conditions UNLESS the Crown shows cause as to why something more restrictive is justified.

-  Section 515(2) where a judge doesn’t order outright release under s. 515, he shall UNLESS THE

CROWN SHOWS CAUSE AS TO WHAY DETENTION IS JUSTIFIED, the judge must release the

accused in one of the ways listed in that section (a) to (e).

-  Section 515(3) A judge cannot make an order under (b) to (e) of s. 515(2) unless prosecutor shows

cause as to why an order under the immediately preceding paragraph would be inadequate.

-  Section 514(4) – (4.3): conditions that MAY or MUST be imposed when an order for release is made

under s. 515(2). Ensures accused attends court or safety of the community.

-  SUMMARY: if an “order of release (without conditions)” is not made by the judge under s. 515(1), there

are 2 options where the Crown must show cause to prevent release: (1) show cause why detention is

necessary or (2) show cause as to why a more serious condition of release should be imposed.

2. General Scheme: Crown seeking continued detention- Section 515(10) 3 grounds on which

continued detention may be ordered

o Necessary to ensure accused’s attendance in courto Necessary to ensure the protection or safety of the

publico Necessary in order to maintain confidence in the administration of justice, having

regard to all the circumstance [some listed—apparent strength of prosecution case,

gravity of offence, circumstances surrounding commission of offence, etc.] (see Hall)

Adjournment: Section 516—the justice on the application of the prosecutor, can adjourn the bail hearing

by up to 3 days without the consent of the accused

Exceptions to the general bail scheme

-  Section 515(6): types of indictable offences which lead to a reverse onus—accused must show cause

why he is to be released. If the accused is ordered to be released, any of the ordinary conditions apply.

-  Sections 515(11) and 522 (re: s. 469 offences): (1) What are s. 469 offences, (2) If it’s a s. 469

offence, reverse onus applies. If the accused is ordered to be released, any of the ordinary conditions

apply.

Reviewing order (ss. 520, 521) a decision made by a justice concerning release or detention may

be reviewed by a judge upon application of the accused or the prosecution.

GETTING READY FOR TRIAL

Disclosure

A key right of the accused, and an important obligation on the Crown, is full disclosure of the fruits of the

investigation (all information gathered by or made known to the police during the investigation) to the

accused. All of the fruits of the investigation are to be disclosed save what is clearly irrelevant or

privileged. The law of privilege is covered by the law of evidence but the most relevant privileges should

be flagged here. Disclosure is to be made before the accused is called upon to elect his mode of trial for

s.536 indictable offences.

The accused may also seek to secure relevant “third party records” – relevant documents that are not the

fruits of the investigation that are under the control of persons other than prosecution and police. Where

third party records are sought, complex applications must be brought, which differ depending on whether

the charge is a sexual offence prosecution or some other offence.

If issues arise as to whether proper disclosure has been made, the assigned trial judge should ordinarily

resolve them. As a practical matter, this requires early assignment of a trial judge who can address these

matters.

-  Content of the right to disclosure

o Evidence, if relevant, must be disclosed by the Crown, whether inculpatory or exculpatory

o Evidence is relevant if it is of some use to the defence (Egger)o Disclosure must be made prior to

election or pleao It is a continuing duty to discloseo But the right isn’t absolute—irrelevant or privileged

information need to be disclosed. o Proper disclosure: Dixon 3 part test for determining whether

disclosure is properlymade and what remedy would be available if disclosure is not proper.

- Conflicting protections: disclosure and privileged information—informer privilege, solicitor-client

privilege [McClure Test: 1) threshold test – the informations sought from the privilege is not available from

any other source and he is otherwise unable to raise reasonable doubt; 2) judge should proceed to

innocence at stake test – 1. The accused seeking production has to demonstrate an evidentiary basis to

conclude that a communication exists that could raise a reasonable doubt as to his guilt 2. If such a basis

exists, the trial judge should examine the communication to determine whether it is likely to raise

reasonable doubt as to guilt – immunity to the person whose privilege has been infringed and needs to be

the only way to prove innocence in order to be allowed] , privilege in counseling records [ case by case

protection , legislatively protected

R v Stinchcombe –William Stinchcombe was a lawyer who was charged with theft and fraud. One of the

Crown's witnesses was a former secretary of Stinchcombe's who had given evidence at the preliminary

inquiry that supported the defence's position

Issue: Is the Crown required to disclose statements made by a witness between the preliminary inquiry

and trial?Rule: Subject to Crown discretion, all relevant information must be disclosed. This

includes information the Crown intends to introduce into evidence and information it does not

intend to introduce regardless of whether it is inculpatory or exculpatory.

Analysis:Re Discretion: The Crown’s discretion can be used to protect the identity of informers, or

disclose relevant information. The Crown’s discretion is reviewable considering the principle that

information should not be withheld if there is a reasonable possibility that it will impair the right of the

accused to make a full answer and defence.Re Privilege: Absolute withholding of relevant information

can only be justified on the basis of legal privilege. Privilege is reviewable on the ground that it is not a

reasonable limit on the right to make a full answer and defence.Re: Timing: Counsel for the accused

must raise the issue of failure to comply with the duty to disclose at the earliest opportunity. This enables

the judge to remedy any prejudice. Initial disclosure should occur before the accused is called to elect the

mode of trial or plea.Conclusion: Crown counsel was not justified in withholding information attained

from the interview of the accused’s former secretary on the basis that it was not worthy of credit. Witness

credibility is for the trial judge to determine. The trial judge should have examined the statements for

relevancy. Failure to disclose prejudiced the accused’s case and a new trial should be ordered.

Dixon test (if discovered after trial): (1) was the accused’s right to disclosure breached (2) if so, did that

breach violate the accused’s right to make full answer and defence [ (1) reasonable possibility that

evidence would have affected the decision to convict (as a whole) or (2) a reasonable possibility that lines

of inquiry with witnesses or opportunities to gather further evidence exist, which would have been

available if evidence had been disclosed – Dixon decided that they were insignificant](3) if so, what

remedy should be granted? + due diligence by defence counsel; if discovered before trial : disclosure or

adjournment

R. v. O'Connor, [1995] 4 S.C.R. 411 is a leading Supreme Court of Canada decision on disclosure

of medical records. 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.

First, the applicant must establish, without seeing them, that the records are likely to be

relevant(reasonable possibility that the information is logically probative to be an issue at trial or the

competence of a witness to testify) to the case. Second, 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.

the following factors should be considered: (1) the extent to which the record is necessary for the

accused to make full answer and defence; (2) the probative value of the record; (3) the nature and extent

of the reasonable expectation of privacy vested in the record; (4) whether production of the record would

be premised upon any discriminatory belief or bias; and (5) the potential prejudice to the complainant's

dignity, privacy or security of the person that would be occasioned by production of the record.

The O'Connor involved in the case was Hubert Patrick O'Connor, a Catholic bishop from British

Columbia who was found guilty sex crimes in 1991

led to enactment of 278.1 – 278.91 confirmed by Mills but primary emphasis on accused’s rights

(production often not ordered)

R. v. McNeil (2009)—Crown duty to disclose; 3rd party records.Issue: Should the disciplinary files of

the investigating officer be disclosed according to the Crown’s duty to disclose?Rule: Crown's first party

disclosure obligation extends only to material relating to the accused's case in the possession or control

of the prosecuting Crown. Production of disciplinary records and criminal investigation files in the

possession of the police that do not fall within the scope of this first party disclosure package is governed

by the O'Connor regime for third party production. Analysis:(1) The person seeking production must

satisfy the court that the documents are likely relevant to the proceedings.(2) If likely relevance is

demonstrated by the applicant, the third party record holder may be ordered to produce the documents

for inspection by the court in order to determine whether production should be ordered. Inspection by

the court (for the common law disclosure regime) is a balancing of the competing interests at stake in the

particular circumstances of the case. The relevant question for step 2 is: If the third party record in

question had found its way into the Crown prosecutor's file, would there be any basis under the

first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that

question is no, there can be no principled reason to arrive at a different outcome on the third party

production application—The accused's interest in obtaining disclosure for the purpose of making full

answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in

the material. This is particularly so in respect of criminal investigation files concerning third party accused.

Conclusion: The disciplinary files should have been disclosed.

The facts in McNeil highlight perfectly the circumstances in which police discipline records often find their

way into criminal proceedings: the accused was charged with possession of crack cocaine for the

purpose of trafficking and the primary witness at his trial was the arresting officer, PC Hackett. McNeil

was convicted at trial, but in the intervening period prior to sentencing, the defence learned through a

newspaper article that PC Hacket was standing trial for a number of criminal offences, and had no less

than 71 pending Police Act charges relating to the ongoing use, sale and transportation of narcotics. In

short, it appeared that the arresting officer was himself involved in the drug trade, casting serious doubt

on the credibility of his testimony at trial.

The McNeil case changed all of that. First of all, the unanimous judgment written by Madam Justice

Louise Charron re-writes the law on third-party production by dispensing with the complex O’Connor

procedure and replacing it with a much simpler test. The old test from R. v. O’Connor [1995] 4 S.C.R.

411 required judges to engage in a complex balancing of the privacy interests in the document to be

produced against the accused’s right to full answer and defence. What this meant in effect was that any

evidence obtained by the police as part of the case against the accused would be disclosed immediately

without discussion under Stinchcombe, but any potentially exculpatory evidence in the hands of other

parties would be subject to a more exacting standard. Now, the records will be disclosed to the defence

as long as they are relevant. Outside of the statutory context of s. 278.1, privacy is no longer a factor that

factors into the analysis “with few exceptions…, the accused’s right to access information necessary to

make full answer and defence will outweigh any competing privacy interest.” Now, once the judge is

satisfied that the record has some relevancy to the present case, the record will be produced to the

defence without further discussion.

Secondly, the court carved out an exception in the context of police records. Rather than require the

defence to cast its rod in a murky fishing expedition for police records, the police ought to disclose any

relevant disciplinary information as part of the primary disclosure package. According to Justice Charron,

“its discovery should not be left to happenstance.” Instead, any records of the discipline or misconduct of

officers involved in the investigation will automatically be disclosed if they might be relevant to the case.

Preliminary Inquiries

As indicated, at the preliminary inquiry, the judge must determine whether the Crown has presented a

prima facie case. If so, the accused is committed to stand trial and the prosecutor will be called upon to

draft an indictment, which will replace the original information as the new charging document. If the Crown

does not establish a prima facie case, the accused is discharged and the prosecution on the charge that

has been laid ends – in effect, the accused who was “charged” is “discharged.” A discharge at a

preliminary inquiry is not, however, an acquittal. The prosecution can re-lay the charge and try again, but

will not do so unless important new evidence is uncovered. The Attorney General also has the authority to

lay a direct indictment, which gives jurisdiction to a court to try the accused. The direct indictment can be

used to re-institute a prosecution after a preliminary inquiry discharge, or to bypass a preliminary inquiry

altogether by indicting the accused directly to trial.

o Until 2004, the preliminary inquiry was understood chiefly as a test of the sufficiency of the

prosecution’s case for trial

o Since 2004, amendments to the Code have altered the nature of the preliminary inquiry and it can no

longer be said that its primary function is to test the sufficiency of the prosecution case as a whole.

o Section 536.3—The inquiry will on be conducted with regard to the issues and witnesses that are

specified in advance

o The preliminary inquiry is now a limited examination of the sufficiency of the prosecution case with

regard to the specific issues and the evidence of specific witnesses

-  Jurisdiction: the authority of a justice to conduct a preliminary inquiry is strictly statutory under Part

XVIII of the Code

-  Scope

o Section 535 defines the scope of the inquiry—directs the judge to inquire into the charge of any

indictable offence or any other indictable offence in respect to the same transaction disclosed by the

evidence

o Section 541 expressly allows the accused to call evidence and this can include exculpatory evidence

on a matter of defence

- Publication bans can be sought by defence; D can cross examine witnesses and put forth their own

case but the quality of defence is not judged at PI

- Committalo Section 548 directs the justice or judge to commit the accused for trial on any

indictable offence if the evidence in support of the charge is sufficient. It also requires the accused to be

discharged (not acquitted) if the evidence is insufficient. Everything turns on the words “sufficient”

o In Shephard the SCC stated that the test of sufficiency at the preliminary inquiry is whether a

reasonable jury, properly instructed, could find the charge proved beyond a reasonable doubt.

o Uncertain as to whether the judge should assess the probative value of the evidence.o Criterion of

completeness: prosecution must lead evidence corresponding to each of the elements

o Criterion of weight: Several cases suggest that it is not the role of the judge to weigh evidence (Arcuri—

judge cannot assess credibility of witnesses).

§ Where the prosecution’s case is circumstantial evidence, a limited weighing of evidence is permitted,

and requires the judge to consider whether, if the evidence is

believed, it support inferences in favour of the prosecution.

o In short, ask whether the essential elements of the offence can be proved BRD in the eyes of a

reasonable trier of fact.

Review of PI decisions only available through certiorari - “fallen into jurisdictional error to denying

natural justiceor complying with mandatory provision”- lack of evidence as to essential element, not

considering “the whole of the evidence”

R v Arcuri - for directed verdicts, and to be able to pass though the preliminary inquiry state, the defence

and the Crown must show that there is a prima facie case. Section 548 of the Code requires a judge to

commit the accused for trial if “there is sufficient evidence.”

The test is the same whether the evidence is circumstantial or direct. Where there is direct evidence as

to each element of the offence, the accused must be committed to stand trial—the case must

proceed to trial even if the accused adduces exculpatory evidence under s. 541 of the Criminal

Code.If the Crown’s case consists of circumstantial evidence, the justice must engage in a limited

weighing of the evidence because there is an inferential gap between the evidence and the matter to be

established.TEST (where evidence is circumstantial): Whether the evidence—including defence

evidence if the accused adduces exculpatory evidence—is reasonably capable of supporting the

inferences that the Crown asks the jury to draw.

The Jury Trial: if a jury trial is to be held, a trial judge is assigned and a jury selected.- Selecting mode

of trial: Normally a choice of mode of trial exists under s. 536(2), the

accused is asked to elect a mode of trial.

o Hybrid (summary/indictable)—the Crown should elect whether to proceed by indictment or summary

conviction

o Summary—the accused enters a plea and will be tried on the information in Form 2—

Trial by judge

o Indictable: Trial by judge and jury unless some other part of the Code specifies.

o Judge

§  If the offence is listed as in the absolute jurisdiction of a magistrate, then the accused does not elect

and is tried in provincial court.

§  If the accused elects trial be provincial court judge, the accused can enter a plea and the trial can

take place at any point.

o Judge and Jury

§  If the offence is listed in s. 469, the accused does not elect and is sent to trial by judge and jury

(subject to the AG’s consent)

§  If the accused refuses to elect, then according to s. 565(1)(c) the trial will be by judge and jury.

§  The same is also true under s. 567, if there is more than one co-accused and they elect differently

from one another.

§  Even if the accused does not want a jury, the AG can compel a jury trial if the offence is punishable

by more than 5 years under s. 568.

§  If the accused elects trial by judge and jury but then fails to appear, under s. 598 the later trial will not

be in front of a judge and jury unless the accused shows legitimate cause.

o Section 535—In either case, there may be a preliminary inquiry if the accused or Crown requests one.

- Jury selection- based on provincial rules (s626); s631 – selection of 12 jurors ; s644(2) – jury properly

constituted as long as jury is not reduced to below 10; s632 – grounds to excuse jurors; s638 challenges

for cause- unlimited need to provide some reason to doubt indifference for (f) – interest prejudice,

specific prejudice, generic prejudice – stereotypical attitudes towards accused etc, conformity prejudice-

influenced by community feelings rarely successful given two part process of judge and challenge –

where first is to show “realistic potential of partiality”; EXCEPT in the case of race – Williams where

challenge was allowed in SCC- aboriginal racism widespread in community only allowed if against a

race not if they tried to prove potential of sympathy (Spence)

Peremptory challenges – s634 – limited to 20 in high treason or murder, 12 in offences that carry 5

years or more and 4 in others; problems occur where crown uses the power to challenge or racial or

sexual grounds – Pizzacalla – led to an all female jury for a sexual assault case – a retrial was ordered;

Juries need not be representative; accused can challenge the array but it is difficult to prove motive of the

Crown or other actor- requires evidence which existed in Butler and Pizzacalla but not in Biddle and

Gayle

In R. v. Williams, [1998] S.C.J. No. 49 (Q.L.), the accused, an aboriginal who resided in British

Columbia, 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 the trial dismissed a renewed application and

did not warn the jury, either in his opening or closing addresses, to be aware of and 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. At issue before the Supreme Court was whether the evidence

of widespread bias against aboriginal people in the community raises a realistic potential of partiality. The

Supreme Court allowed the appeal.  The appropriate evidentiary standard on applications to challenge for

cause based on racial prejudice is a "realistic potential for partiality" (the rule in R. v. Sherratt [[1991], 1

S.C.R. 509]). Absent evidence to the contrary, where widespread prejudice against people of the

accused's race is demonstrated at a national or provincial level, it will often be reasonable to infer that

such prejudice is replicated at the community level. Prejudice less than widespread might in some

circumstances meet this test.

R v Find - 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 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.

 Held:  The appeal should be dismissed.  The nature of the charges against the accused did not give rise

to the right to challenge prospective jurors for cause on the ground of partiality.

Establishing a realistic potential for juror partiality generally requires satisfying the court on two matters:

(1) that a widespread bias exists in the community; and (2) that some jurors may be incapable of setting

aside this bias, despite trial safeguards, to render an impartial decision.  The first branch of the test is

concerned with the existence of a material bias, while the second is concerned with the potential effect of

the bias on the trial process. It follows that such myths and stereotypes, even if widespread, provide little

support for any inference of a behavioural link between these beliefs and the potential for juror partiality. 

Finally, absent evidence, it is highly speculative to suggest that the emotions surrounding sexual crimes

will lead to prejudicial and unfair juror behaviour.  The safeguards of the trial process and the instructions

of the trial judge are designed to replace emotional reactions with rational, dispassionate assessment. 

Our long experience in the context of the trial of other serious offences suggests that our faith in this

cleansing process is not misplaced.  The accused failed to establish that sexual offences give rise to a

strain of bias that is uniquely capable of eluding the cleansing effect of trial safeguards.

R v Yumnu 2012 - Following a trial in Barrie, Ontario, each of the appellants was convicted of two counts

of first degree murder and two counts of conspiracy to commit murder.  They appealed from their

convictions, raising grounds relating to the adequacy of the trial judge’s charge to the jury.  While the

appeals were under reserve, the appellants became aware of a “jury vetting” practice in the Barrie area,

consisting of inquiries conducted by the police, at the behest of the Crown Attorney’s office, as to whether

potential jurors had a criminal record or whether they were otherwise “disreputable persons” who would

be undesirable as jurors.  It was ascertained that in the present case, vetting of the jury lists by the police

in response to the Crown’s request netted information about 10 individuals who remained in the pool of

prospective jurors at the peremptory challenge stage of the proceedings.  None of this information was

shared with the defence.  The appeals were reopened to consider evidence and arguments concerning

the propriety of the vetting practice and its impact on the appellants’ trial.  The Court of Appeal dismissed

all three appeals.  With respect to the ground of appeal related to jury vetting, the Court of Appeal found

that the 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 the Crown’s failure to meet its disclosure obligations.  The Court of

Appeal held that there was no basis to conclude that the Crown’s failure to disclose caused actual

unfairness in the peremptory challenge process, or that the jury vetting practice created an appearance of

unfairness.

Held:  The appeals should be dismissed.

As for the appearance of unfairness and the suggestion that the verdicts are the product of a miscarriage

of justice, although aspects of the Crown’s conduct were improper and should not be repeated, what

occurred here did not constitute a serious interference with the administration of justice, nor was it so

offensive to the community’s sense of fair play and decency that the proceedings should be set aside as a

miscarriage of justice.  The record checks were carried out in good faith and there was no attempt on the

part of the police or the Crown to obtain a favourable jury.  There is no basis for ordering a new trial.

Pre-Trial Motions

In either judge alone or jury trials, there will often be preliminary legal issues to be resolved before the trial

gets going. These will ordinarily be dealt with by the assigned trial judge. In a jury trial, it is often

convenient to assign the judge and to dispose of these matters before a jury is selected, or if the motions

can be resolved expeditiously, select the jury and require it to leave the courtroom until the motions are

completed.

1) Change of Venue – S599 – whether there is strong evidence of a general prejudicial attitude in the

community as a whole and it must not be capable of being cured by safeguards in jury selection by

instructions from the trial judge to the jury panel or by rules of evidence. [ Time is also an issue]

2) Fitness to Stand Trial – Section 2 – balance of probabilities proof; Two stages – 1) judge considers

reasonable grounds 2) actual fitness is decided; Can be brought anytime prior to verdict with some

limitations

3) Trial within reasonable time – 11(b) – Morin Test : 1) length of delay 2) waiver 3) the reasons for the

delay including (A) inherent time requirements (B) actions of the accused (c) actions of the crown (D)

limits in institutional resources (E) other reasons 4) prejudice to the accused – right to security, liberty and

to a fair trial [ six to eight months from committal is considered alright in Askov] prejudice should be

presumed in 11(B) violations but absent serious proof of serious prejudice, claims are less likely to be

granted

4) Abuse of Process and Fair Trial rights – Abuse of Process – oppressive or vexatious proceedings that

violate fundamental principles of justice – COI, entrapment, non-disclosure not usually successful; Stay

of Proceedings – will only be granted if: 1) the prejudice caused by the abuse in question will be

manifested, perpetuated or aggravated through the conduct of the trial or by its outcome or 2) no other

remedy is reasonably capable of removing that prejudice only if prejudice is ongoing is a stay awarded

by Court, usually order further disclosure or adjournment exceptional cases involve balancing of

accused and societal interest that inevitably lead to societal interests in a full hearing trumping

General Principles of Sentencing

For the most part, the general principles of sentencing have been codified in the Criminal Code. Judges

are instructed to use alternatives to imprisonment that are reasonable in the circumstances. Mandatory

sentences can be struck down as unconstitutional if they are grossly disproportionate, but judges cannot

create constitutional exemptions from them. [section 718 – 718.2]

R. v. Nasogaluak (2010)—whether a s. 24(1) remedy is necessary to address the consequences of

a Charter breach or whether this can be accomplished through the sentencing process.The

Principles of Sentencing—Sections 718 to 718.2:- s. 718.1: mandates a sentence be "proportionate

to the gravity of the offence and the degree of responsibility of the offender". Thus, whatever

weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the

fundamental principle of proportionality. CENTRAL TO SENTENCING PROCESS—s.12 of the Charter

forbids the imposition of a grossly disproportionate sentence that would outrage society's

standards of decency. But what does proportionality mean in the context of sentencing?

(1) It requires that a sentence not exceed what is just and appropriate, given the moral

blameworthiness of the offender and the gravity of the offence(2) Counter-balanced by its

alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders

are held responsible for their actions and that the sentence properly reflects and condemns their

role in the offence and the harm they caused- s. 718.2 provides a non-exhaustive list of secondary

sentencing principles, including the consideration of aggravating and mitigating circumstances, the

principles of parity and totality, and the instruction to consider "all available sanctions other than

imprisonment that are reasonable in the circumstances", with particular attention paid to the

circumstances of aboriginal offenders.

- Re Discretion: Discretion is fettered by precedent, and general ranges of sentences for particular

offences, to encourage greater consistency. A judge can order a sentence outside that range as long as it

is in accordance with the principles and objectives of sentencing. The discretion of a sentencing judge

is also constrained by statute: principles and objectives enshrined in ss. 718 to 718.2; through the

restricted availability of certain sanctions in the Code; mandatory minimum sentences.

- Re deference to trial judge: a sentence can only be interfered with if it was "demonstrably unfit"

or if it reflected an error in principle, the failure to consider a relevant factor, or the over-

emphasis of a relevant factor. However, this does not mean that appellate courts can interfere with a

sentence simply because they would have weighed the relevant factors differently.The Role of Charter

Breaches in the Regular Sentencing ProcessGiven the court's broad discretion under ss. 718 to 718.2

to craft a fit sentence that reflects the facts of the case, s. 24(1) of the Charter may be appropriate for a

court to address when passing sentence.- Section 718.2(a) provides that a court should reduce a

sentence "to account for any relevant ... mitigating circumstances relating to the offence or the offender".

As mitigating factors, the circumstances of the Charter breach must align with the circumstances

of the offence or the offender, as required by s. 718.2 of the Code—the more egregious the

breach, the more attention the court will likely pay to it in determining a fit sentence.

- Sentencing decisions are always subject to constitutional scrutiny. A sentence cannot be "fit" if

it does not respect the fundamental values enshrined in the Charter.

- Re Communicative function of sentencing (s. 718): a proportionate sentence is one that expresses,

to some extent, society's legitimate shared values and concerns. A sentence that takes account of a

Charter violation is therefore able to communicate respect for the shared set of values expressed in the

Charter.Conclusion: The proper interpretation and application of the sentencing process will allow courts

to effectively address most of the situations where Charter breaches are alleged, there may be exceptions

to this general rule. Sentencing judges cannot mandate a sentence outside of mandatory

minimums/maximums laid out in the Criminal Code except in "exceptional circumstances". 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.

R. v. C.A.M. (1996)--(Absent an error in principle, failure to consider a relevant factor or an overemphasis

of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the

sentence is demonstrably unfit)The accused pled guilty to numerous counts of sexual assault, incest and

assault with a weapon, in addition to other lesser offences, arising from a largely uncontested pattern of

sexual, physical and emotional abuse inflicted upon his children over a number of years. None of the

offences committed carried a penalty of life imprisonment

The Court of Appeal erred in applying as a principle of sentencing that fixed-term sentences under the

Criminal Code ought to be capped at 20 years, absent special circumstancesà Within the broad

statutory maximum and minimum penalties defined for particular offences under the Code, trial judges

enjoy a wide ambit of discretion under s. 717 in selecting a just and appropriate fixed-term

sentence which adequately promotes the traditional goals of sentencing, subject only to the

fundamental principle that the global sentence imposed should reflect the overall culpability of

the offender and the circumstances of the offence

- The Court of Appeal erred in reducing the accused's sentence. Absent an error in principle, failure to

consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should

only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit

It was open to the sentencing judge to reasonably conclude that the particular blend of traditional

sentencing goals required a sentence of 25 years in this instance

R. v. Gladue (1999)—Aboriginal pled guilty for stabbing and killing her boyfriend. The trial judge

sentenced her to three years’ imprisonment

Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other

than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.

-  Section 718.2(e) directs judges to undertake the sentencing of such offenders individually, but also

differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal

offender, the judge must consider: (a) the unique systemic or background factors which may have

played a part in bringing the particular aboriginal offender before the courts; and (b) the types of

sentencing procedures and sanctions which may be appropriate in the circumstances for the

offender because of his or her particular aboriginal heritage or connection.

-  Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-

reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of

achieving an effective sentence, the term "community" must be defined broadly so as to include any

network of support and interaction that might be available, including one in an urban centre. At the same

time, the residence of the aboriginal offender in an urban centre that lacks any network of support does

not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.

-  In this case, the sentencing judge may have erred in limiting the application of s. 718.2(e) to the

circumstances of aboriginal offenders living in rural areas or on-reserve. Moreover, he does not appear to

have considered the systemic or background factors which may have influenced the accused to engage

in criminal conduct, or the possibly distinct conception of sentencing held by the accused, by the victim's

family, and by their community. They say that allowing a new trial solely on the basis of her aboriginal

status would not be in the public interest.

R v Ferguson - At an RCMP detachment in Pincher Creek, Alberta, an altercation arose between the

detained Darren Varley and Michael Esty Ferguson, an RCMP officer. Mr. Varley was shot twice and

killed, and Constable Ferguson was charged with second-degree murder. He was convicted by a jury of

the lesser offence of manslaughter, and the trial judge imposed a conditional sentence of two years less a

day, notwithstanding the mandatory minimum sentence of four years imposed by s. 236(a) of the Criminal

Code for manslaughter with a firearm. The majority at the Alberta Court of Appeal overturned that

sentence, holding that the mandatory minimum must be imposed. Matthew Shogilev has previously

commented on this case and has thoroughly summarized both the facts and the appeal court’s analysis;

Constable Ferguson appealed to the Supreme Court of Canada on the grounds that imposing the

mandatory four-year sentence on the circumstances of his case would constitute cruel and unusual

punishment, contrary to s. 12 of theCanadian Charter of Rights and Freedoms. He argued that the trial

judge was correct in granting him the constitutional exemption from the four-year minimum sentence

imposed by Parliament. On Friday, the SCC dismissed Constable Ferguson’s appeal in R. v.

Ferguson, 2008 SCC 6, on the grounds that the mandatory minimum sentence was not a cruel and

unusual punishment in light of his circumstances. Additionally, the SCC said that constitutional

exemptions are generally an inappropriate remedy for cruel and unusual punishment imposed by such

mandatory minimum sentences.

Ultimately, the SCC held that constitutional exemptions should not be recognized as a remedy for cruel

and unusual punishment imposed by a law prescribing a mandatory minimum sentence. If such a law is

found to violate the Charter, it should be declared inconsistent with the Charter and hence of no force and

effect, under s. 52(1). The discretionary, case-by-case approach requested by Constable Ferguson does

not cohere with the values and principles that underlie our legal system (rule of law).

R v Morrissey - Marty Morrisey, a 36 year old from Belmont, Nova Scotia, was drinking with two friends

in a cabin. Morrisey and his friend Adrian Teed sawed the barrel off a shotgun. Morrisey told Teed the

gun was for the purpose of committing a robbery when in fact he was intending to kill himself due to

recent relationship problems. Morrisey drove the third bud home, and when he returned to the cabin Teed

was sleeping in a bunk bed. Morrisey leapt onto the bunk bed while holding the loaded shotgun. He

subsequently fell off the bed, likely due to his intoxication, and the gun accidentally discharged, fatally

wounding Teed.

Morrisey was charged with criminal negligence causing death under section 220(a) of the Criminal Code

of Canada.

At trial the judge found that the mandatory four-year sentence required under section 220(a) violated

section 12 of the Charter. Instead, Morrisey was sentenced to two years including the time he spent in

pre-trial custody. The Court of Appeal overturned the ruling.

The question before the Court was whether section 12 was violated and if so, was it justified under

section 1.

The Supreme Court upheld the ruling of the Court of Appeal and found there to be no violation, but the

Court allowed the time in pre-trial custody to be included in the sentence.

Opinion of the Court : Justice Gonthier wrote the opinion for the majority. He first considered all the

previous decisions on section 12 and rearticulated the analysis. He stated that when a sentence is merely

disproportionate to the offence it is not enough to invoke section 12. The true purpose of section 12 is to

protect "against punishment which is so excessive as to outrage our society's sense of decency", which

he admitted is a high standard as the court should not be "quick to invalidate sentences crafted by

legislators."

Gonthier gave two situations where section 12 can be invoked for cruel and unusual sentences. First,

there are situations where the sentence itself is reasonable but for a particular person may have an effect

on the accused that would be overly harsh. Second, if the sentence is reasonable for the particular person

then the court must consider whether it would be harsh in a reasonable hypothetical situation.

R v Pham 2013 -  The accused, a non-citizen, was convicted of two drug-related offences.  In light of a

joint submission by the Crown and defense counsel, the sentencing judge imposed a sentence of two

years’ imprisonment.  Under the Immigration and Refugee Protection Act, a non-citizen sentenced to a

term of imprisonment of at least two years loses the right to appeal a removal order against him or her.  In

the present case, neither party had raised the issue of the collateral consequences of a two year

sentence on the accused’s immigration status before the sentencing judge.  The majority of the Court of

Appeal dismissed the appeal and refused to vary the sentence.

Held:  The appeal should be allowed and the sentence of imprisonment reduced to two years less a day.

A sentencing judge may exercise his or her discretion to take collateral immigration consequences into

account, provided that the sentence ultimately imposed is proportionate to the gravity of the offence and

the degree of responsibility of the offender.  The significance of collateral immigration consequences will

depend on the facts of the case.  However, it remains that they are but one of the relevant factors that a

sentencing judge may take into account in determining an appropriate sentence.  Those consequences

must not be allowed to skew the process either in favour of or against deportation.  Further, it remains

open to the sentencing judge to conclude that even a minimal reduction of a sentence would render it

inappropriate in light of the gravity of the offence and the degree of responsibility of the offender.

An appellate court has the authority to vary a sentence if the sentencing judge was not aware of the

collateral immigration consequences, or if counsel had failed to advise the judge on this issue.  Where the

matter was not raised before the sentencing judge and where the Crown does not give its consent to the

appeal, some evidence should be adduced for consideration by the Court of Appeal.  In the case at bar,

the sentencing judge was unaware of the sentence’s collateral immigration consequences and the Crown

had conceded that sentence should be reduced by one day.  It was wrong for the Court of Appeal to

refuse the sentence reduction based solely on the fact that the accused had a prior criminal record or on

its belief that the accused had abused the hospitality that had been afforded to him by Canada.  It is

therefore appropriate to grant the variation of the sentence from two years to two years less a day.

Appeals of Final Decisions and Judicial Review of Interim Decisions

Final verdicts can be appealed. Interim decisions cannot be. Interim decisions can, however, be the

subject of judicial review applications where jurisdictional errors occur. Judicial review may be necessary,

for example, to challenge preliminary inquiry results, to seek or quash publication bans, or to suppress or

access third party records; in these cases if we wait until the end of the trial, the damage sought to be

prevented may have already occurred, hence the judicial review application. In the case of appeals,

different grounds of appeal and procedural routes apply, depending on whether an offence has been

prosecuted summarily or indictably. [ s675, s686]

Appeals of indictable offences

(a) Appeals by the accused

- s 675(1)(a) lists the grounds of appeal

- s 686(1)(a) lists grounds on which court of appeal can grant appeal: (i) verdict set aside b/c

unreasonable or cannot be supported by the evidence; (ii) wrong decision on a question of law; (iii) on

any ground that there is a miscarriage of justice

- s 686(1)(b) (follows s 686(1)(a): this section sets out grounds on which an appeal can be dismissed

(other than dismissing if none of the grounds for “granting” are made out) [See statute for how the

sections in (a) relate]

- It has been suggested that the underlying theory of s 686(1)(a) is miscarriages of justice (R v Morrisey)

- See p 355 for options after granting appeal under s 686(1)(a)

- Note: appeal can be in relation to sentencing too

Standard of review

- Varies depending on ground of appeal

- Pure questions of law, standard of review is correctness (so appellate court can substitute opinion);

questions of fact should not be overturned in the absence of a “palpable and overriding error”’; etc

Unreasonable verdicts

- Ask whether the verdict is one that a properly instructed jury acting judicially could reasonably have

rendered (R v Yebes). Could the TJ have reached its conclusion on the evidence before it?

- Works in judge or jury trials; harder in jury ones though – if properly instructed but unreasonable verdict,

then jury was not acting judicially

- What about overturning decision if TJ’s reasoning process was unreasonable? Yes (Beaudry) –

Question is wehtehr verdict is unreasonable, not whether reasoning is unreasonable + Justice Fish’s view

of “unreasonable verdict or one that cannot be supported on the evidence”

Errors of law and miscarriages of justice

- These are similar – indeed they are all similar, in that miscarriage of justice underpins all of them ;

primary reason for distinguishing between them is that there is a curative proviso in the case of errors of

law

- No requirement that verdict was not supported by evidence

- An “error of law” is any decision that was erroneous interpretation or application of the law (R v Khan)

(note that the curative provision applies to this ground) (e.g of error of law review: where there is a air of

reality to a defence and TJ instructs jury there is no air of reality)

- Miscarriage of justice can either be substantive or procedural (e.g. if the error at trial is one of mixed fact

and law, e.g. ineffective legal counsel

The curative provision

- Section 686(1)(b)(iii) allows a court of appeal to dismiss an appeal despite an error of law provided no

“substantial wrong or miscarriage of justice has occurred”

- “ reasonable possibility that the verdict would have been different had the error not been made” test

- based on facts – either 1) error is so harmless (usually single errors like admitting hearsay) or 2)

evidence is so overwhelming that a conviction was inevitable (more onerous standards with restricted

usage)

Procedural irregularities

- Section 686(1)(b)(iv) – where accused suffered no prejudice by cause of procedure, appeal can be

dismissed works in tandem with curative proviso with the proviso kicking in when there is a loss of

jurisdiction due to error of law

(b) Appeal by Crown

Primary right: a question of law alone

- Section 676(1)(a) – narrower appeal rights

- Appeals from acquittals – court does not overturn easily – Crown must show how in the concrete reality

of the case at hand the rror had a material bearing on the acquittal needs to be a question of law like

interpretation of statute, admissibility of evidence, investigative necessity , Charter decisions; Can include

treatment of evidence too – 1)legal effect of undisputed facts 2) misdirection as to evidence (limited

circumstances) 3) instructing a jury to consider individual pieces of evidence separately to decide whether

they would constitute proof beyond a reasonable doubt

Statutory Powers on Appeal – s683, 684, 679; must show appeal is not frivolous, detention ois not

necessary in the “public interest” (upheld with regards to bail pending an appeal)

Fresh evidence on appeal – Palmer test – 1) not admitted if could have disclosed at trial by due diligence

2) must be relevant in that it bears upon a decisive or potentially decisive issue at trial 3) must be credible

– reasonable capable of belief and 4) when taken with other evidence at trial, be expected to have

affected the result

Duty to give reasons – Sheppard – failure or insufficient reasons by a trial judge can be an error of law –

assessed as a whoel – 1) are the reasons inadequate? 2) does the inadequacy prevent appellate review

Needed for 1)accountability 2)need to know reasons for conviction 3)counsel require them to construct

appeal 4) functional need during appeal 5) important if addressing unsettled law etc.

Summary Conviction Appeal s 822

Supreme Court – s691 to s605 – only on questions of law

R. v. Lutoslawski (2010)—the ON Court of Appeal set aside the accused's acquittal on charges of

sexual assault and entered a conviction- The only issue on this appeal is whether the Court of Appeal

for Ontario erred in substituting a conviction instead of ordering a new trial on three counts of sexual

assault.

- The test to be applied in determining whether the impugned conduct has the requisite sexual

nature is an objective one: 'Viewed in the light of all the circumstances, is the sexual or carnal

context of the assault visible to a reasonable observer?'- Sexual assault does not require proof of an

improper or ulterior purpose. The Crown at trial proved beyond a reasonable doubt that the touching of

the complainants occurred in circumstances of a sexual nature such as to compromise the sexual

integrity of the complainants. Section 686(4)(b)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, permits

an appellate court on appeal from a judge alone to "enter a verdict of guilty with respect to the

offence of which, in its opinion, the accused should have been found guilty but for the error in

law". Here the Crown established that an error of law was committed at trial, and that but for that error

the appellant would necessarily have been convicted: R. v. Cassidy, [1989] 2 S.C.R. 345. Accordingly, we

are all of the view that the Court of Appeal reached the proper conclusion. Accordingly, the appeal is

dismissed.

Review of Preliminary Inquiry Decisions.

a. Cannot appeal decision to discharge or commit from a preliminary inquiry.

b. Only review available is certiorarii. Most frequently involves an accused seeking review of a decision to

commit

c. Certiorari will only be granted if the judge has fallen into jurisdictional error.

Exclusion of evidence will not be a basis for review unless the error rises to the level of a denial of

natural justice.

It is jurisdictional error if the judge does not comply with a provision of the Code— s. 548 requires

a judge to commit the accused for trial if “there is sufficient evidence.”

No weighing of evidence

Judge required to discharge the accused if “on the whole of the evidence no sufficient case is

made out.” If judge doesn’t consider whole of the evidence, jurisdictional error.

Crown provides evidence for all elements of the offence—if judge commits without evidence of an

essential element of the offence, jurisdictional error.

Judge must commit even if defence has offered exculpatory evidence.