ACTUS REAS Causation: Crown must prove link between accused’s act and prohibited harm. TEST: The act/omission must be “a contributing cause, beyond the de minimis range” (Smithers) The act/omission must be “a significant contributing cause” (Nette)

SPECIAL PROBLEMS Voluntariness: only held responsible for voluntary or consciously chosen acts. (Swaby) Contemporaneity (Williams) Symmetry (Roach) Proof beyond a reasonable doubt (Woolmington)

Intervening act: breaks chain of causation (Maybin) Analytic Aids: Reasonable foreseeability: intervening cause is reasonably foreseeable à chain not broken Independent Factor: intervening act wholly independent (stemming from a different source) à chain broken   Thin Skull: take the victim as you find them (Smithers) Omission: statutory provision identifying duty; failure to perform duty (Peterson)

Statutory Interpretation Modern principle: “[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”  (Rizzo) Rule of Strict Construction: “[T]he seriousness of imposing criminal penalties of any sort demands that reasonable doubts be resolved in favour of the accused.” (Pare) Sentencing: “… if a penal provision is reasonably capable of two interpretations that interpretation which is the more favourable to the accused must be adopted.”  (Goulis)

MENS REA

-NB: mens rea can be inferred from facts (Mulligan)

-NB: subjective fault presumption (Theroux)

Subjective (“wilfully, recklessly, intentionally, knowingly”)

Consequences and causation: not whether a reasonable person would have foreseen the consequences of the prohibited act, but whether the accused subjectively appreciated those consequences as at least a possibility (Theroux)

Intent: a person intends a consequence when it is their conscious purpose to achieve it or if they foresee that the consequence is certain or substantially certain to result from an act which they do in order to achieve some other purpose (Buzzanga) Wilfully: the primary meaning of the word ‘wilfully’ is ‘intentionally’ but it also sometimes extends to mean ‘recklessly’ (Buzzanga)

Recklessness: recklessness denotes the subjective state of mind of a person who sees risk and who takes a chance regardless (Sansregret)

Wilful Blindness: It is a conscious choice to remain ignorant in the face of an obvious truth and it can substitute for knowledge whenever knowledge is required. (Briscoe)

• If the accused did make an inquiry, did they try to learn the truth or refrain to the extent that would allow them to remain deliberately ignorant? (Lagace)
• Knowledge is implicit in recklessness and intention. Wilful blindness is equivalent to knowledge. (Theroux)

Objective (“negligently, carelessly, ought to have, danger, reasonable care/steps/grounds”)

Marked Departure Test (Creighton)

1) Was the act a marked departure from the standard of a reasonable person in the circumstances?

2) Does the accused have any genuinely held beliefs that would make this marked departure reasonable in the circumstances?

Criminal Negligence (s. 219): Marked and Substantial Departure Test (Beatty)

1) Was the act a marked and substantial departure from the standard of a reasonable person in the circumstances?

2) Does the accused have any genuinely held beliefs that would make this marked and substantial departure reasonable in the circumstances?

-NB: not a very clear test; highly dependent on facts

Homicide

Homicide “directly or indirectly by any means causes death”: s. 222(1)culpable or not culpable: s. 222(2)if not culpable, then not an offence: s. 222(3) Homicide is culpable when… [s. 222(5) (a-d)]death is caused by means of an unlawful act; and death is caused by criminal negligence.Types of culpable homicide: s.222(4) Manslaughter: s. 234Murder NB: Murder can be reduced to manslaughter by provocation: s. 232

Murder: s 229 [subjective mens rea offence (Martineau)] Intent to cause death (specific intent);OR intent to cause bodily harm + knowledge likely to cause death + recklessness   1st Degree Murder: s. 231 (2-6.2) NB: substantial cause (Harbottle) Planned and deliberate: s. 231(2); ORVictim is police, prison guard, etc.: s. 231 (4); ORPart of “same transaction” as crime of domination: s. 231 (5) Else, 2nd degree: s. 231 (7)

Sexual Assault:

AR: i) touching ii) sexual nature of conduct, violates sexual integrity iii) absence of consent (subjective, based on victim’s state of mind)

• Objective Test: viewed in light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer? (Chase)
  • Relevant Factors: part of the body touched, nature of the conduct, the situation, any words or gestures, any threats, intent or purpose, motive (i.e. sexual gratification) (Chase).

MR: general intent offence

Consent Vitiated by Fraud (s. 265(3)(c) Currier Test: (Mabior)

• Was there dishonest action?
• Was there ‘deprivation’ that constitutes a significant risk (realistic possibility) of serious bodily harm?

Special Offences Predicate Offences: no MR needed UNLESS: 1) unlawfully causing bodily harm (s. 269) (DeSousa) 2) unlawful act manslaughter (s. 234) (Creighton) 3) aggravated assault (s. 268(1)) & aggravated sexual assault (s. 273: wounds, maims, disfigures, or endangers life)   à MR: objective foresight of non trivial/transitory bodily harm (NB: underlying offence MR cannot be absolute liability)

Regulatory Offences: strict liability presumption (SSM) 1) Strict Liability: reverse onus; possibility of defence; reasonable person standard 2) Absolute Liability: no defence (other than exculpatory involuntariness); prison sentence à de facto s. 7 violation   Ulterior purpose:  if criminal code provision says “x does this in order to…” (e.g. s249.1: in a car chase, the person fails to stop the car in order to evade the police officer.)

Constitutionality Double Threshold: constitutional limits on statutes 1) Pursuant to s. 91 & s. 92; s. 52 2) Charter violation: s. 7 à s. 1 (Oakes; Hunter) à principles of fundamental justice (Malmo-Livine –Vagueness: a law is unconstitutionally vague if it “does not provide an adequate basis for legal debate” and analysis,” does not “sufficiently -delineate any area of risk”, or “is not intelligible”. The law must offer a “grasp to the judiciary”. (CFCYL) –Arbitrariness: no rational connection between effect and object of the law. (Bedford) –Overbroad: the law goes too far and interferes with some other conduct that bears no relation to the object. (Bedford) –Gross Disproportionality: the effect of the law on those affected is grossly disproportionate to the objective. (Bedford))

Role of Judges WD Framework: the WD Framework is applicable when dealing with competing testimonial evidence (SJH) NB: alerts the judge or jury to ‘credibility contest’ error 1) if jury believes the evidence of the accused, they must acquit 2) if they do not believe the testimony of the accused but they are left with reasonable doubt, they must acquit 3) even if they are not left in doubt by the evidence of the accused, they must ask themselves whether, on the basis of the evidence which they do accept, they are convinced beyond a reasonable doubt that the accused is guilty Mistake of Fact SUBJECTIVE MR: mistake of fact must be honest OBJECTIVE MR: mistake of fact must be honest & reasonable STRICT LIABILITY: mistake of fact must be honest & reasonable; part of due diligence defence – onus on accused ABSOLUTE LIABILITY: mistake of fact irrelevant

Defence

Air of Reality: if evidence is true, could the jury acquit? (Cinous)

• “merely evidential, rather than persuasive”; “threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence”
• trial judges must put all defences to the jury that have an air of reality, regardless of whether or not they have been specifically raised by the accused

Incapacity: reverse onus requiring expert evidence

NB: captures mental disorder automatism (involuntary) and NCR (non-automatistic)

NCR ss. 16, 672.34, 672.45, 672.54

TEST

1. Accused was suffering from a mental disorder at the time of the act/omission; AND

2.The mental disorder EITHER–(a) Rendered the accused incapable of appreciating the nature and quality of the act/omission; OR (b) Rendered the accused incapable of knowing that the act/omission was wrong

NB: Sentencing: s 675.45: Send to review board; Disposition hearing (Public safety, accused condition); Discharged absolutely, discharged subject to condition, detained in custody in a hospital

R v Cooper (1993)	FACTS: in patient; drinking during the day, followed by dance; attempt at sex, choked her out; “far away”, “dazed”, “blank” (cf. Rabey) look and admitted to father he killed (dragged her to bushes) Distinguished “disease of the mind” as a legal question not psychological; mentions M’Naghten Rules for “appreciate” (as not synonymous with “knowing”)  Must also appreciate (Ritchie JA: “measure and foresee”) consequences flowing from the act
R v Kjeldsen (1981)	FACTS: note psychopathy as a “personality disorder” and compare it to others (like bipolar) Psychopaths can appreciate consequence, but lacks appropriate remorse
R v Abbey (1982)	FACTS: accused was searched at the airport and was found with cocaine; he admitted it openly, defence of insanity was raised; an inability to appreciate the personal penal consequences is irrelevant to the test
R v Chaulk (1990)	FACTS: Thought that someone was going to kill them, so killed them first Lamer CJC (majority): by reason of a disease of the mind, believes that it would be “right” according to ordinary morals of their society to commit the crime in a particular context (i.e. self-defence). McLachlin J (dissent): it does not matter whether the accused knows that the conduct was legally wrong or morally wrong – all that is required is that the accused is capable of knowing that the act was in some sense “wrong”.
R v Oommen (1994)	FACTS: accused is delusional and shoots his friend because he thought that she was there to kill him The question is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rationale choice about whether to do it or notDoes the accused possess the capacity present in the ordinary person to know that the act was wrong having regard to the everyday standard of the ordinary person?
R v Campione (2015)	FACTS: Killed daughters to be with them in heaven; If they’re incapable of knowing that acts are morally wrong (in the circumstances), then they haven’t made a choice to deviate from society’s standards Outside societal standards? First ask if there’s a disease of the mind; problem: social norms are a moving target

Extreme Intoxication

EXTREME INTOXICATION: (reverse onus – contentious) negatives general intent and/or voluntariness, resulting in full acquittal. BUT not available for crimes of violence, per s. 33.1. (N.B. CHARTER CHALLENGE)

Advanced intoxication makes it harder for Crown to prove MR beyond reasonable doubt (not technically a defence)

R v Daley (2007)

Mild, advanced, and extreme intoxication

R v Daviault (1994)

accused was “blackout” drunk and sexually assaulted a woman; Traditional Rule: voluntary intoxication should not be a defence for offences of general intent because to allow an accused who is not afflicted by a disease of the mind to plead absence of mens rea where they have voluntarily caused themselves to be incapable of mens rea would undermine the principle of moral responsibility that mens rea gives effect to. Further, it should not be a defence because seldom, even in cases of extreme drunkenness, will individuals lack the minimal degree of consciousness required to intend to do the act that constitutes the actus reus of a crime. Finally, as there are offences that drunk people are apt to commit, it would seem to defeat the policy behind them to make drunkenness a defence

Non-MD automatism: reverse onus, but requires the accused to prove automatism on a balance of probabilities (Stone)

NA: presumption of voluntariness

Automatism

1. insane automatism (not criminally responsible) à NCR (presumption)

2. non-insane automatism (absolute acquittal). à stone test (3 steps)

TEST: (Stone)

1) air of reality

2) automatism, not NCR (continuing danger, internal cause)

3) automatism on balance of probabilities (involuntary)

TEST: non-MD automatism: (Parks)

Continuing Danger: the continuing danger theory holds that any condition likely to present a recurring danger to the public should be treated as insanity. However, the absence of the danger of recurrence is not a reason for saying that something is not a disease of the mind

Internal Cause: the internal cause theory suggests that a condition stemming from the psychological or emotional makeup of the accused, rather than some external factor, should lead to a finding of insanity

R v Parks (1992)	FACTS: the accused slept walked and attacked his mother and father-in-law
R v Stone (1999)	FACTS: the accused lost consciousness when his mind snapped under the weight of verbal abuse and he stabbed his wife 47 times; Automatism Defence (TEST): as the law presumes that people act voluntarily, the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact The burden will only be met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilitiesSecond consideration: not about whether the automatism would occur, but how likely the circumstances will occur? The mix of internal and external; Third policy reasons: Stigma of NCR: deal with the stigma (that’s reifying the stigma) “not his fault but it is his problem” Binnie J dissent air of reality is a lower bar; throw it to the jury, they are equally skeptical (“buses or around office coffee machines”) Bastarache: “psychological blow” automatism; Association wanted all automatism to be mental disorder, however, mental disorder is a question of law
R v Fontaine (2004)	FACTS: Fontaine struck her while she was violently trying to wake him (it was a reflex); Dissociative vs reflexive   Controversy: judge does more to weigh evidence before handing it off to the jury; read it down, judge has too much of an active role; involuntariness but not automatism
R v Luedecke (2008)	FACTS: parasomnia sexual assault; reflects on Stone; Combined: a combined reading of Stone and Winko yields a comprehensive response to automatism claims. At the pre-verdict stage, social defence concerns dominate. Those concerns focus on the risks posed by the potential recurrence of the conduct in issue. Where that risk exists, the risk combined with the occurrence of the conduct that led to the criminal proceedings will almost always justify further inquiry into the accused’s dangerousness so as to properly protect the public. In the post-verdict stage, however, the emphasis shifts to an individualized assessment of the actual dangerousness of the person found NCR-MD. Where that personalized assessment does not demonstrate the requisite significant risk, the person must receive an absolute discharge

Justification & Excuses:

Defence of person s. 34

TEST

Condition 1: (a) Force was being used/threatened against the accused/another person; OR (b-i) The accused subjectively believed force was being used/threatened against them/another person; AND (b-ii) The accused’s subjective belief that force was being used/threatened against them/another person was reasonable. Apply modified objective analysis […] – tailored to the qualities of the person	Condition 2: (a) Force/threat of force defended against was not for the purpose of doing something that the victim was required or authorized by law to do in the administration or enforcement of the law; OR (b) Accused reasonably but mistakenly believed in a state of facts that, if true, would have made the force/threat of force that the accused defendant against unlawful	Condition 3: Throughout the act sought to be defended, the accused was acting for the purpose of defending against the force/threat of force that was occurring, or that the accused reasonably believed to be occurring.
CONDITION 4: WAS THE ACT REASONABLE IN THE CIRCUMSTANCES?
R v Short (2016)	FACTS: there is a prison fight in which the accused contended that he acted in self-defence; criteria a) and b) under s. 34(1) are clearly satisfied (reasonable belief of force against them, acted in self-defence). The only issue is whether the action was reasonable in the circumstances. The judge held that it was reasonable, as using a weapon to defend himself was necessary to protect himself. Given that the system of the prison put him in an unsafe position, it cannot blame him for resorting to his own means of defence.
R v Lavallee (1990)	FACTS: the accused was a battered woman who killed her partner one night by shooting him in the back of the head as he left her room; expert evidence is crucial in cases of battered women because it is a complex psychological and physical phenomenon that is difficult for the average person to understand. It is also crucial to help dispel any myths and stereotypes that may affect the decision Battered womens syndrome – may be able to predict in advance when their partner is going to attack them next and how badly.

Defence of property: “The defence is triggered upon a reasonably based belief of peaceable possession of property and of another person’s specific action regarding that property

TEST:

1.about to enter, entering or having entered to the property without lawful entitlement; OR

2. about to take, taking or having just taken the property; OR

3. About to damage or destroy or in the process of damaging or destroying the property or making it inoperative […]

R v Cormier (2017)

[…] Upon the defence being triggered, an act committed to prevent the triggering event is justified provided it is ‘reasonable in the circumstances’. The defensive purpose requirement is to be assessed subjectively. On the other hand, the reasonableness of the response is objectively assessed. However, unlike the enumeration of factors to aid assessing this in self-defence cases (s. 34(2)), s. 35 offers no legislative guidance.”

Duress (ss. 17, 18) 1.Explicit/implicit threat of present or future death or bodily harm, directed at either the accused or a third party; 2.Accused reasonably believes the threatwill be carried out;  3.No safe avenue of escape [modified objective standard]; 4.Close temporal connection between threat, harm threatened; 5.Proportionality between harm threatened, harm inflicted by the accused – harm caused by the accused must be no greater than harm threatened [modified objective standard]; AND 6.Accused must not be a party to a conspiracy or association whereby accused is subject to compulsion and actually knew that threats/coercion to commit offences were a possible result of this criminal activity/conspiracy/association. NB: Principal (s. 17) or aider/abetter (common law)? Principal à restricted list or apply test (s. 17); On list à s. 7 Charter challenge Aider/abetter à apply test (citing common law) R v Ruzic (2001) FACTS: smuggled heroin by duress (threatened violence against mom); problem of immediacy and presence (s. 17) Morally involuntary (no s7 blameworthiness); “immediacy” and modified objective test in duress (cf necessity)

Necessity 1.There must be imminent peril or danger [modified objective test]; 2.The accused must have no reasonable legal alternative to the course of action she undertook [modified objective test]; AND 3.There must be proportionality between the harm inflicted and the harm avoided [objective test]. R v Perka (1984) FACTS: the accused were drug smugglers. They were carrying marijuana to a drop point off the coast of Alaska when their boat began to sink and they had to seek refuge on the Canadian coastline. They were arrested. They raised the defence of necessity due to mechanical problems; trying to go to Alaska instead; alternative would be to be ship wrecked; no law against having marijuana in international waters; preceding acts can be convicted, but the actual act from necessity would be covered R v Latimar (2001) FACTS: the accused decided to take the life of his daughter who was suffering from a severe form of cerebral palsy that substantially reduced the quality of her life

Special Defences

Party Liability (s. 21)

Abandonment defence (Gauthier)

1. There was an intention to abandon or withdraw from the unlawful purpose;

2. There was timely communication of this abandonment/withdrawal to those who wished to continue;

3. The communication served unequivocal notice upon those who wished to continue; AND

4. The accused took, in a manner proportionate to her/his participation in the commission of the planned offence, reasonable steps in the circumstances to neutralize/cancel out the effects of her/his participation or to prevent the commission of the offence

R v Dunlop and Sylvester (1979)	FACTS: Two guys were charged with sexual assault after delivering beer to biker gang; the complainant claimed that they sexually assaulted her as well; Dunlop and Sylvestor were just two members of the supposed 18 member gang rape; The claim is that they were only there for 3 minutes and that they didn’t assist Question of whether they omitted do something; Mens rea of intention; lack of mens rea for mere presence? mere presence at a crime is not sufficient to ground culpabilityDoes mere presence equate to encouragement? Must be proved that there was wilful encouragement
R v Gauthier (2013)	abandonment to block the aiding and abetting; s 21(2) Mere communication of intention is not sufficient to vitiate culpability Archer example and not wanting the arrow to hit once released
R v Briscoe (2010)	FACTS: lured girls into a park; wilful blindness; distinction of aiding and betting Aiding means to assist or help the actor Abetting is to encourage or promoting the crime

Official induced error (Cancoil)

“The defence of ‘officially induced error’ is available as a defence to an alleged violation of a regulatory statute where an accused has reasonably relied upon the erroneous legal opinion or advice of an official who is responsible for the administration or enforcement of the particular law.

In order for the accused to successfully raise this defence, he must show that he relied on the erroneous legal opinion of the official and that his reliance was reasonable.

The reasonableness will depend upon several factors including the efforts he made to ascertain the proper law, the complexity or obscurity of the law, the position of the official who gave the advice, and the clarity, definitiveness and reasonableness of the advice given.”

Mistaken Belief in Communicated Consent s. 273.2

• mistake must be honest;
• mistake must be that complainant communicated consent;
• mistake cannot arise from recklessness, wilful blindness, self-induced intoxication, or circumstances vitiating consent;
• and accused must have taken reasonable steps, in circumstances known to them at the time, to ascertain that the complainant was communicating consent

Provocation (partial defence) (s. 232)

1. Objective Test: Would the alleged provocation –

(a) Constitute an indictable offence punishable by five years or more? AND (b) Deprive the ordinary person of self-control?

à If ‘yes’ to both (a) and (b), consider subjective test

2. Subjective Test: Did Accused actually –(a) Act upon the sudden provocation? (b) Before his/her passions had time to cool? (Tran)