Professional Documents
Culture Documents
powerfully expressive, concern to make express what we think is good and just
principles find expression in the law through outcomes, enforcement, philosophical
objectives
o Substantive v. Procedural
AR + MR (Defences) = Criminal Law (Substantive CL)
how do you get to trial, police (Criminal Procedure)
I. SENTENCING
Aims and Purposes of Sentencing
the remedies in criminal law is sentencing; 1995/6 made revisions, putting in
objectives as a general critique, not much guidance
CRIMINAL CODE OF CANADA
718
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives,
to respect for the law and the maintenance of a just, peaceful and safe society by imposing just
sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm
done to victims and to the community.
718.0 When a court imposes a sentence for an offence that involved the abuse of a person under the
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age of eighteen years, it shall give primary consideration to the objectives of denunciation
and deterrence of such conduct.
718.0 When a court imposes a sentence for an offence under subsection 270(1), section 270.01 or
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270.02 (assault of peace officer) or paragraph 423.1(1)(b) (intimidation), the court shall give
primary consideration to the objectives of denunciation and deterrence of the conduct that
forms the basis of the offence.
718.1 Fundamental Principle of Proportionality - A sentence must be proportionate to the
gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating
or mitigating circumstances relating to the offence or the offender, and, without
limiting the generality of the foregoing,
o (i) evidence that the offence was motivated by bias, prejudice or hate based on
race, national or ethnic origin, language, colour, religion, sex, age, mental or
physical disability, sexual orientation, or any other similar factor,
o (ii) evidence that the offender, in committing the offence, abused the offenders
spouse or common-law partner,
o (ii.1) evidence that the offender, in committing the offence, abused a person
under the age of eighteen years,
o (iii) evidence that the offender, in committing the offence, abused a position of
trust or authority in relation to the victim,
o (iv) evidence that the offence was committed for the benefit of, at the direction of
or in association with a criminal organization, or
o (v) evidence that the offence was a terrorism offence
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar
offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be
S.
718.2(e)
and Other
Racialized
Groups
Gender
and
Sentencin
g
R v Borde (2003 Ont CA) and R v Hamilton (Ont SCJ 2003) potentially broaden scope of
718.2(e) to include offenders from racialized groups other Aboriginal
Sentences are less for women who fit traditional female s/t (two parent fam,
dependent, gentle, compliant); women who dont conform to this tend to be treated as
men
Discrim common agst young girls; more likely than young men to be brought to youth
court and detained for their own protection
Even with equal sentences, impact tends to be > on women less likely to be able to
pay same fines as men, imprisonment psychologically harder for women, fewer
womens prisons means further from support systems, more likely to have suffered
physical and emotional abuse prior to conviction
For same crim behaviour, poor more likely to be arrested, charged, convicted and sent
to prison, longer sentences, etc than middle and upper class
Often directly related to employment of police discretion; surveillance heavier in low
income areas
More likely to self represent
on gender, poverty and sentencing: black and Aboriginals overrepresented idea of
fixing young girls, women who are poor mothers shoplifting, fewer womens prisons
self injurious behaviour, separation from child discriminates against the poor and
harms as many people as it helps
The Poor
and
Sentencin
g
Issues: Can s. 718.2(e) be broadened to consider systemic and background factors of other
racialized groups?
Decision: Appeal dismissed; background factors not considered bc of seriousness of offence;
sentence reduced by one yr bc trial judge didnt give proper consideration to his age (18)
Reasons: Crime here was very serious but judge held that systemic racism and background
factors faced by black youth in Toronto are impt and could affect sentence in another case
R v HAMILTON (Ont SCJ 2003)
Facts: Hamilton and Mason acted as drug mules from Jamaica; both were single, black
mothers with 3 children and on social assistance, no prior crim record;
Issues: Is a conditional sentence appropriate once systemic and background factors are
considered?
Decision: Conditional sentences are appropriate given the circumstances; Hamilton 20m,
Mason 24m
Reasons: Hill, J -- In the Brampton area, 1) blacks of either gender or disprp charged w
importing cocaine compared to rest of popn 2) black, single mothers charged and sentenced
to pen for cocaine importing disprop to their percentage of the popn - race/poverty/gender
are proven factors
R v HAMILTON (Ont CA 2004)
Doherty, J Hill, J took on role of advocate in sentencing hearing and conditional sentences
generally not a fit sentence for drug couriers who import hard drugs even if the courier is
preyed on by drug lords; sentences increased to 2y in prison; where race/poverty/gender are
proven factors to the commission of the crime, those can be properly considered as possible
mitigating factors arriving a just sentence.
Harm
Principle
(John Stuart
Mill On
Liberty)
Critiques of
Harm
Principle
Only basis on which you can validly use state power is to prevent people
from doing harm to others
So if youre not doing any harm to others, then the state should have no
right to interfere in personal affairs, least of all physical boundaries
Liberal response; criminal law should be based on the harm principle
There is deeply ingrained in the political and
philosophical tradition in western societies, the belief
that the fundamental value is the freedom of
individuals to develop their own view of life, without
direction from the state or from the majority.... Fraser
Committee Report
Two main critiques against harm principle:
1) Anything can be a harm
a. (indecency, harm to a vulnerable community, health care costs
(what counts as harm depends on what you value) it begins with the
question this matters)
2) has to do with the very theory of the state
a. May not believe that role of state is to leave us alone; if you believe
that state must act and create a community of equality, then there
is a positive duty to build liberty state help out not state keep
out
b. (A number of feminist theories). Limits to the criminal law is a
framing question
Devlin
Hart (Liberal)
Society isnt a society if its only based on harm; societies are also about
community values as well; criminal law plays a fundamental role in holding
those values together
disgust on omnibus
Defends harm principle and says that moral codes wont collapse without
criminal law; most violent form of intervention isnt required (ie. criminal
law)
Criminal law isnt reacting legitimately unless its responding to a harm
done from one to another (Liberal position)
Dissent:
A law that has the potential to convict a person whose conduct causes little or no reasoned
risk of harm to others offends the principles of fundamental justice and, if imprisonment is
available as a penalty, such a law then violates a persons right to liberty under s. 7 of the
Charter. (para. 190)
Arbour Harm principle is a PFJ; where state seeks to imprison, there must be clear and
tangible harm to others; law that has no potential to harm others and has imprisonment as a
penalty offends PFJ and contrary to Charter
R v LABAYE 2005 SCC
Ratio: To be criminal, the harm must be one which society as a whole recognizes as
incompatible with proper functioning
TEST FOR INDECENCY: Indecent criminal conduct est where Crown proves BRD that:
1) By its NATURE, the conduct at issue causes harm or presents a significant risk of harm to
individuals or society in a way that undermines or threatens to undermine a value reflected in
an thus formally endorsed through the Constitution or similar fundamental laws by, for
example: confronting members of the public with conduct that significantly interferes with
their autonomy and liberty, predisposing others to anti-social behaviour, physically or
psychologically harming persons involved in the conduct
2) Harm is of a DEGREE that is incompatible with proper functioning of society (Objective test)
Facts: Group sex club, limited to members who were interviewed and paid an annual
membership fee. Doorman manned the main door to admit only members and group sex only
took place on 3rd floor which was separate from rest of clubone door marked Prive and the
other locked with numeric key pad.
Charge: s. 210(1) - keeping common bawdy-house undera place kept for purposes of acts of
indecency.
Issues: Were the acts committed acts of indecency w/i the meaning of the criminal law? (ie.
what does indecency mean for the CCC)?
Decision: Acquitted. On test for indecency, 1) Crown did not est that nature of harm
threatened a value in Constitution 2) Unnecessary to move on to step 2, but if did, no
evidence that degree of harm incompatible with functioning of society
Reasons:
TEST FOR INDECENCY: Indecent criminal conduct est where Crown proves BRD that:
1) By its NATURE, the conduct at issue causes harm or presents a significant risk of harm to
individuals or society in a way that undermines or threatens to undermine a value reflected in
an thus formally endorsed through the Constitution or similar fundamental laws by, for
example: confronting members of the public with conduct that significantly interferes with
their autonomy and liberty, predisposing others to anti-social behavior, physically or
psychologically harming persons involved in the conduct
3) Harm is of a DEGREE that is incompatible with proper functioning of society (Objective test)
Dissent: Bastarache, LeBel -- Maintain the community standard of tolerance test; harm is a
factor for determining an acceptable level of tolerance; situation here would not meet
Canadian community standard for tolerance and would therefore be indecent
R v CARTER BCSC 2012 on appeal to SCC
Ratio: The absolute prohibition against physician assisted suicide is unconstitutional and
should be replaced with a highly regulated scheme
Facts: Const challenge brought by chronically ill patient, Gloria Taylor, and Carter and Johnson
who helped arrange a doctor in Switzerland; Shoichet a family doc in BC who would perform
PAS if legal
Prior to Charter in criminal law, div of powers was one of the main ways of protecting civil
liberties; constrained provincial incursions into things that were constraints on civil right
breadth produces conflict w provincial legislation ie. property and civil rights provincial
legislation against theft; heart of constitutional law was to sort out powers one thing to
resolve is pith and substance test what is this really about
FEDERAL
s. 91(27) - Criminal law and procedure
s. 91(28) Penitentiaries
PROVINCIAL
To be
1.
2.
3.
VALIDITY of Legislation
1. Must be in jurisdiction (Ebling, Morgentaler)
2. Must not conflict with Charter
A. DIVISION OF POWERS
R v MORGENTALER 1994 SCC
Charter case under s. 7 moved from pie to bagel rights protected zone
Ratio: Laws that are in pith and substance about criminal law are federal jurisdiction
Facts: Nova Scotia created a provincial law under civil and property rights powers that
prohibited women from obtaining abortions in hospitals.
Issues: Are Nova Scotia Medical Services Act and its abortion regulations ultra vires the
province of Nova Scotia on the ground that they are in pith and substance criminal law?
Decision: Yes. Struck down as unconstitutional
Reasons: Provincial invasion of federal criminal law power
ii)
Overbreadth
(R v. Heywood)
iii) Strict
Construction
(Certainty)
(R v. Par)
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i)
determine the sense in which Parliament used the word from the
context in which it appears.
ALWAYS ASK:
o What is the purpose of the statute?
o What kind of conduct is it designed to cover.
Vagueness
ii) Overbreadth
R v HEYWOOD
Ratio: Laws that are too sweeping in relation to their objective are overbroad and therefore
unconstitutional. Different from vague laws, where the meaning is ambiguous; both are result
of lack of sufficient precision by legislature in means to accomplish the objective.
Facts: Accused was a convicted sex offender charged with vagrancy, by being a person who
had been convicted of a sexual offence and found loitering at or near a school ground,
playground, public park, or bathing area which violated s. 179(1)(b) of CCC. He was also
observed with camera at playground, taking pictures.
Issues: Is the law overbroad and therefore unconstitutional?
Decision: Yes. S. 179(1)(b) restricts liberty more than needed to accomplish its goal of
preventing re-offense and is void for overbreadth.
Reasons: Corey -- Law is overbroad in 1) geographical scope bc it embraces all public parks
and beaches no matter how devoid of children 2) temporal aspect as prohibition applies for life
w/o review 3) number of persons it encompasses 4) may be enforced w/o any notice to the
accused.
Dissent: Gonthier Law is not overbroad; should read into the law activities with a
malevolent or ulterior purpose related to reoffending
ii)
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NOTE: rule has little bite - judges first figure out intention and infer what meant only rule
against strict construction if cant find out; rule comes from a time when death was result for
most convictions; still serves a couple purposes ensures liberty only affected if parliament is
clear- serves purpose of giving notice- in favour of the accused
Goulis under obligation to disclose assets, charged with fraudulent concealment bc of
shoes does concealing require active hiding or failure to disclose court of appeal said
agree with result but dont need rule of strict construction to get there- interpret as
active concealment - only in presence in genuine ambiguity
Facts: The accused indecently assaulted a boy, threatened to kill him, and killed him 2
minutes later.
Charge: s. 214 (5) (now s. 231(5)) first degree murder occurs when the death is caused
while committing an indecent assault (now sexual assault)
Issues: Did accused kill victim while committing indecent assault?
Decision: Pare found guilty of first degree murder. Entire course of conduct was one single
transaction.
Reasons: Wilson if you look at intention and purpose of statute, the approach that requires
you to interpret while as exactly simultaneous is problematic: 1) difficult to define beginning
and end of an assault 2) leads to distinctions that are arbitrary and irrational (ie. if murdered
two min earlier, clear 1st degree) 3) where acts leading up to death are all one single
transaction, the death was caused while committing indecent assault. and apply notion that
you would reach an absurd result of a less serious crime rather than more serious, there is no
ambiguity and principle of strict construction is not needed; In addition, policy considerations
underlying the provision (ie. increasing penalties in such acts) suggest that single transaction
analysis is better approach.
Section 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.
Section 15(1): Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability
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Is
the legally prescribed breach justifed under s.
1?
The remed
is that the evidence obtained by the state action might be excluded under s. 24(2) of the
Charter.
Yes
No
OAKES TEST
Government has the burden of proving, on a balance of probabilities, that a breach is a
reasonable limit, prescribed by law, and justified in a free and democratic society.
1. Is the limit on the right (the breach) prescribed by law?
2. Is there a pressing and substantial objective/purpose for the limit on the right?
3. Is the offending law proportionate?
a. Is the limit rationally connected to the purpose/objective?
b. Does the limit minimally impair the right in order to achieve the objective?
c. Are the deleterious effects of the limit proportionate to its salutary effects? heart is
proportionality
Section 24(2)
KEY QUESTION: Would a reasonable person, informed of all the relevant circumstances and
the values underlying the Charter, conclude that the admission of the evidence would bring
the administration of justice into disrepute?
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trial) Consider: is the illegally obtained evidence reliable? How important is the evidence
to the Crowns case? Seriousness of the offence (cuts both ways)
Given the assessments under each of these three lines of inquiry, would the admission
of evidence obtained by Charter breach bring the admin of justice into disrepute?
Yes No
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1. Would admitting the evidence adversely affect the fairness of the trial?
a. Is the evidence conscriptive? (yes, then go to b; no, then go to 2)
b. Is the evidence discoverable? (yes, then go to 2; no, then admission of evidence
will render trial unfair and it will generally be excluded w/o considering stages 2
and 3).
2. How serious was the Charter violation?
3. What would be the effect of excluding the evidence on the administration of justice?
Issues: When is it ok to admit evidence obtained through a Charter breach?
Precedent:
Courts ended up interpreting Collins in a different way than what was intended
At the first stage, fairness really meant did the police get conscriptive, non-discoverable
evidence
o If yes, the trial cannot be fair and evidence must be excluded
In practice, it was an automatic exclusion at stage one and never went on to consider 2
and 3.
Courts became increasingly uncomfortable bc evidence was sometimes being excluded for
very minor breaches but never went on to next steps.
Ended up excluding evidence where breach seemed really small bc at CL courts created a
precedent that evidence of a certain kind (ie. consc, non-disc) would automatically be
excluded
Eventually the SCC came up with new test Grant test
R V. STILLMAN 1997 SCC
Ratio: Provided an analytical framework for the first stage of the Collins test. Once shown that
evidence is obtained in breach of Charter:
1. Classify evidence as conscriptive or non-conscriptive based on manner it was obtained.
2. If evidence is conscriptive and Crown fails to show on balance of prob that it would have
been discovered, then its admission will render the trial unfair.
3. If evidence is conscriptive and Crown shows on bal of prob that it was discoverable, then its
admission will generally not render the trial unfair. Will then consider remaining two steps.
Facts: Stillman, 17, charged with murder of 14 yr old girl. Lawyers advised police that he was
not giving any bodily samples. After lawyers left, Police took samples under threat of force
(removed hair, teeth impressions and mucou from Kleenex).
Issues: Should the evidence obtained through police force be excluded under s. 24(2)
Reasons: Conscriptive evidence will generally render a trial unfair unless the evidence was
discoverable.
Vocabulary:
Conscriptive evidence evidence that requires you to incriminate yourself at the behest of
the state by means of a statement, the use of the body or production of bodily samples.
Derivative Evidence Another kind of conscriptive evidence; evidence that is not a
statement, use of body or bodily sample, but is found as a result of these things.
Discoverability Conscriptive evidence might be discoverable if it was capable of being
found by other constitutional means either through other sources or it was inevitable that it
would be found anyway.
R V. GRANT 2009 SCC
Ratio: See new Grant test for determining exclusion of evidence.
Main question: would admitting the evidence bring the administration of justice into disrepute?
Judge must consider three lines of inquiry from a longterm, forward-looking and societal
perspective:
Seriousness of Charter-infringing conduct
Impact of the Charter breach on the protected interests of the accused
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Facts: Police patrolling near Toronto school. Grant, a young, black man was walking down the
street and came to attention of two plainclothes officers. They say him fidgeting with jacket
and told a third, uniformed officer to chat with him on the street. He was asked for name and
address and after adjusting his jacket, asked to keep hands in front. Two additional officers
came back. When Grant was asked if he had anything he shouldnt, he replied a small bag of
weed and a firearm. conscriptive statement led to evidence
Issues: Was there a violation of ss. 8, 9, 10(b) of the Charter? If so, should evidence obtained
through a Charter breach be excluded?
Decision: Held. The gun should be admitted into evidence under s 24(2)
Reasons: Gun is derivative evidence. 1. police conduct not at the most serious end of the
spectrum 2. impact on liberty not egregious 3. Gun is highly reliable evidence and value of
evidence is extremely high. It is essential to a determination of the case on its merits.
Weighing all the concerns, the admission of the evidence would not bring the admin of justice
into disrepute.
Precedent: The weed and firearm are conscriptive, derivative evidence the kind that would
have been excluded under Collins/Stillman
R V HARRISON 2009 SCC
Ratio: Application of Grant test
Facts: Accused travelling across Canada in rental car. Police noticed the car had no front
license plate and was going speed limit, which was unusual on that road. No grounds to stop,
but did so bc of concern about integrity of police to observers if didnt. Accused had
suspended license and was charged. Police searched car incident to arrest to find license.
Found 35 kg of cocaine.
Issues: Was there a Charter breach? If so, should the evidence obtained through the breach
be excluded?
Decision: Search breached ss 8 and 9 of Charter. Evidence should be excluded.
Reasons: Charter breach initial stop should not have been made and search was not
incidental to arrest. Exclusion of evidence Egregious police conduct and disregard for rights.
They knew it was an illegal search but did it anyway.
What will Grant mean?
The trial judge drew the line where the police had continually shown systematic disregard for the law
and the Constitution. The trial judge did not err in concluding that the courts must not tolerate this sort
of behaviour by those sworn to uphold the law. He took the only course open to him in order to prevent
the administration of justice from falling into further disrepute by condoning this disturbing and aberrant
police behaviour. (R. v. Cot, 2011 SCC 46, para. 4)
underneath law, have power and relationships values communicated arent neutral
reasonable or objective how generalizable is this really
Crime Control Model:
o Metaphor: the assembly line things should flow along well
o Goal: the conviction of the guilty
o Core Value: truth
Due Process Model:
o Metaphor: the obstacle course
o Goal: the protection of rights
o Core Value: fairness
POLICE POWERS
When dealing with
exercise of police
powers, ask:
(Collins)
Section 8
Considerations include:
1. Type of privacy interest at stake (i.e. personal, territorial,
informational privacy Tessling)
2. Whether the accused has a subjective expectation of privacy and
whether that expectation is objectively reasonable. (Patrick)
3. For property or territorial searches, factors to consider may
include (Edwards):
Presence at the time of the search
Possession of control of the property or place searched
Ownership of the property or place (Belnavis, Edwards)
Historical use of the property or item
Ability to regulate access, including the right to admit or
exclude others from the place
REASONABLE EXPECTATION OF
NO REASONABLE EXPECTATION OF PRIVACY
PRIVACY
Your own bodily samples (Stillman)
Garbage bags left for collection at the edge of
ones property (Patrick)
Entry to your home (Feeney)
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REASONABLE SEARCH
In order to be
reasonable under
s. 8, a search or
seizure must
satisfy three
preconditions:
(Collins)
When is a search
reasonable?
(Hunter v
Southam)
3. Assuming a REP
exists, was the
search reasonable?
4. Did the
circumstances
allow for a lower
standard of
suspicion than
Hunter v Southam?
(Kang-Brown, A.M.)
If all three of the above do not exist, it may still be a legal search if
you can prove the search was reasonable under the circumstances.
o Does it fit into another category of search (e.g. search incident
to arrest, sniffer dog)?
Sniffer dog searches (Kang-Brown, A.M.)
These types of searches are reasonable w/o a warrant if they are
based on reasonable suspicion (rather than reasonable and
probable grounds)
Seen as being less intrusive and undertaken in response to on-thespot observations. Sniffer dogs are also highly accurate.
Search must still be conducted reasonably (ie. dog must be properly
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trained)
Was there
reasonable
suspicion?
5. If search IS
reasonable
5. If search IS NOT
reasonable
7. Was there
reasonable
suspicion?
should the
evidence obtained
be excluded under
s. 24(2)?
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Decision: Yes. Suspects had a REP over information and police require a warrant for such a
recording.
Reasons: There is a REP over private conversations wrt state surveillance. Permitting
unrestricted video surveillance by state agents would seriously diminish the degree of privacy
we can reasonably expect to enjoy in a free and democratic society.
R v WONG 1990 SCC
Ratio: No REP in a private hotel room used for public purposes
Facts: Wong was charged with keeping a common gaming house. He put up posters inviting
the public to gamble in his hotel room. Police put up a video camera in the hotel. Crown
argued that there was no search bc he had no REP. Wong argued that videotape amounted to
an illegal search and violated s. 8.
Issues: Did Wong have an REP in a private hotel used for public gambling? If so, was the
search in violation of s. 8 of the Charter?
Decision: A REP of privacy exists and the videotaping amounted to a warrantless, thereby
violating s. 8 of the Charter. (Evidence, h/e, was not excluded under s. 24(2))
Reasons: LaForest You dont give up your REP in a private hotel room even if you take the
risk of making it available to the public. A REP is with respect to state action. There is a great
distinction bw exposing ourselves to risks wrt to other individuals and with the state. Threat to
privacy from state is much greater.
Concurring: Lamer In most cases, a private hotel room is a place where individuals have a
REP. H/e when Wong invited the public into the hotel he gave up his REP. A reasonable person
would not expect that strangers, and possibly the police, would not be in the room. No REP
and therefore no search w/i meaning of s. 8.
R v EDWARDS 1996 SCC
Ratio: REP depends on the totality of the circumstances In determining property or
territorial REPs, factors to consider may include:
Presence at time of search
Possession or control of the property or place searched
Ownership of the property of place
Historical use of the property of item
Ability to regulate access, include right to admit and exclude
Existence of subjective expectation of privacy
Objective reasonableness of the expection.
Facts: Drugs found during search of Edwards girlfriends apt after she cooperated with the
police. Edwards argued that it was an illegal search.
Issues: Does a man have a REP in his girlfriends apartment?
Decision: No REP
Reasons: Cory -- In considering totality of circumstances, accused had no REP at gfs apt. The
fact that he had a key and sometimes stayed over outweighed by his lack of authority to
regulate access to the premises. This meant he could not be free from intrusion or
interference. He was no more than a privileged guest.
R v BELNAVIS 1997 SCC
Ratio: No REP if you are a passenger in a car. Application of Edwards factors.
Facts: Three women were stopped for speeding. Police officer noticed bags of clothes in back
with tags on them. Upon search, more found in trunk. Girls all charged with possession of
stolen property. Accused argued that search was illegal and in violation of Charter.
Issues: Does a passenger in a car have a REP wrt search of bags and the trunk of the car in
which shes travelling?
Decision: No. Passengers in cars have no REP. Evidence should not be excluded under 24(2).
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Reasons: No REP bc she did not own the vehicle or have any control over it. No relationship
to driver. Did not control access to vehicle. No subjective evidence that she had expected to
have privacy in the vehicle.
R v TESSLING 2004 SCC
Ratio: No REP over heat signature from home. The type of information obtained is important
to determining whether a REP exists (in this case, heat signature deemed meaningless).
Facts: Police used thermal imaging device to take heat picture of Tesslings home from an
overhead plane. Recorded relative distributions of heat over the surface of the building. Taken
with other evidence, led police to believe there was a marijuana grow-op. Tessling argued that
technology amounted to a warrantless search of his home and violated s. 8.
Issues: Do you have a REP over the heat signature of your home?
Decision: Appeal allowed. No REP over heat signature of your home and therefore no warrant
needed to take it.
Reasons: Binnie -- Applied Edwards totality of circumstances factors The FLIR technology
provides a crude image, which doesnt tell you enough on its own to provide sufficient grounds
for a search warrant. Merely tells police there are heat generating activities in the home. At
this point in time, FLIR technology is non-intrusive and mundane in data it produces. Not the
same as having police inside the home.
R v PATRICK 2009 SCC
Ratio: No REP over garbage bags left at edge of property.
Facts: Police suspected Patrick of operating and ecstasy lab and seized garbage bags left for
collection at rear of his property. The police didnt step foot onto property but reached across
the property line. Used evidence to secure a warrant. Patrick argued that seizure of garbage
violated s. 8 bc he retained a privacy interest in bags.
Issues: Is there a REP over garbage bags left at edge of property?
Decision: No. Section 8 is not engaged.
Reasons: Binnie -- Patrick abandoned privacy interest in contents of bag when he placed the
bags for collection in a location where any passing member of the public had access. Viewed
in totality of circumstances, gave up REP (placed in open container at back of property,
unprotected, in easy reach of passerby)
R v SPENCER 2014
Ratio:
Facts: computer someone was using to store and share child porn; asked Shaw for identity of
persona associated with IP address charged w possession and making available convicted
on possession and argues that he had privacy
Issues:
Decision:
Reasons:
1. The subject matter of the alleged search
a. name and address; Spencer says they were also searching intimate details of
private life revealed in association with particular activities Court says abt
person and associating it with pattern of usage on Internet
2. The nature of the claimants privacy interest in the subject matter
a. in Tessling, Court says privacy can be personal, territorial or information this
was territorial, but SCC says it was informational and abt heat coming off home
much lower privacy interest had no reasonable explanation
b. the closer it is to you, the more important Court says this is informational
could be secrecy, control of info or anonymity interest pretty high level of
informational privacy this actually reveals great deal about you
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3. The claimants subjective expectation of privacy in the subject matter accused thought
through the state
4. Whether this subjective expectation of privacy was objectively reasonable having
regard to the totality of the circumstances.
a. in Edward how much control over territory, do you own, can you regulate acess
what are totality of circumstances
b. in Spencer, gov said we all sign IS agreements which says might have to give
info to police- contract of adhesion one person creates and you say yes or no
no negotiating room these things in term of privacy are informative but not
dispositive
c. REP, since police x warrant, was unconstitutional; b to s.8 rights but evidence was
admitted, but principally bc law was so unclear and thought this was fine, were
letting this in
Note: Privacy analysis is laden with value judgments which are made from the independent
perspective of the reasonable and informed person who is concerned about the long-term
consequences of government action for the protection of privacy. (para 14)
R v KANG-BROWN; R V A.M.
Ratio:
a) Sniffer dog searches are an exception to Hunter v Southam standard and establish a new
common law police power.
b) There is a REP over smells emanating from personal belongings. Police intrude on a REP
when use a drug-sniffing dog to detect the odour of narcotics coming from an individuals
person or luggage.
c) HOWEVER, sniffer dog searches have a lower standard or suspicion/belief. Sniffer dog
searches are reasonable if the officer has reasonable grounds to suspect (as opposed to
reasonable and probable grounds) that the accused has drugs.
d) Hunter v Southam is the gold standard. Lower standard is given after considering all
circumstances, including minimal intrusion, contraband-specific and high accuracy rate of flyby sniff. Creates a proper balance bw individual and societal interests.
Facts: Kang-Brown: Undercover RCMP at bus station noticed accused get off bus and then
glance at police officer over shoulder. Officer found bahviour suspicious and approached
accused and asked if he was carrying narcotics. Accused said no and snatched bag away as
officer reached out to touch it. RCMP called for sniffer dog who signalled that drugs were in the
bag. Accused searched and arrested.
A.M: Principle of high school gave a standing invitation to police to bring sniffer dogs to school
to search for drugs. Police showed up with dogs. Dog alerted officer to drugs in one of the
bags. Backpack was searched and AM charged.
Issues: Under what circumstances are police allowed to conduct a sniffer dog search of an
individual and his/her belongings?
Decision: Accused acquitted in both. No sufficient grounds for search. Violation of s. 8 and
evidence excluded under s. 24(2)
Reasons: a) Accused had a REP in bags sufficient to trigger s. 8 b) Police are entitled as a
matter of common law to conduct sniffer dog searches w/o a warrant on basis of reasonable
ground to suspect the presence of contraband c) However police did not have sufficient
grounds to conduct the searches
Dissent: LeBel dissented on creation of new standard. Risk that in practice critical elements
of the rights guaranteed by s. 8 will be jeopardized (ie. legal basis in statute or common law,
judicial authorization, reasonable and probable cause). Creation of such CL rules is not an
appropriate exercise of judicial power.
What is reasonable suspicion?
Justice Karakatsanis in Chehil (2013):
it is about the reasonable possibility, not probability, of crime. (para. 27)
22
You look at the constellation of objectively discernible facts that are said to give the investigating
officer reasonable cause to suspect that an individual is involved in the type of criminal activity
under investigation. (para. 29).
ARREST POWERS
General Rule
How was the person
arrested? (ie. How
does an accused
become drawn into
system?)
23
EXCEPTIONS to
search incident to
arrest
What rights do
individuals have upon
arrest?
o Safety of police
o Securing evidence
o Preventing escape
Must not be done in abusive manner
1. Bodily samples (Stillman)
2. Strip Searches (Golden)
Police must show reasonable and probable grounds to justify the
strip search, and additional grounds for justifying strip search done
in the field, as opposed to the police station.
s10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefore;
(b) to retain and instruct counsel without delay and to be informed
of that right; and
(c) to have the validity of the detention determined by way of
habeas corpus and to be released if the detention is not lawful.
24
of intrusion creates confusion. This decision bypasses Cloutier, which says that reasonable and
probably grounds are not prerequisite to police power to search.
INVESTIGATIVE DETENTION
Sections 9 and 10
9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
o (a) to be informed promptly of the reasons therefor;
o (b) to retain and instruct counsel without delay and to be informed of that right; and
o (c) to have the validity of the detention determined by way of habeas corpus and to
be released if the detention is not lawful.
before no common law authority before 1993 said arrested or free to go
History/Context
If NO Detention
25
2. If DETENTION,
what are the police
entitled to do once a
person is detained?
3. If DETENTION,
What are the rights of
the detainee?
26
use reasonable
conduct in exercising
their rights?
RIGHT TO SILENCE (s. 7)
7. Did the detention
1. Police can carry on persuading and questioning a detainee
violate s. 7? What are
EVEN after they have explicitly stated they want to stand
the police entitled to
on their right to silence AS LONG as the questioning doesnt
do?
render them involuntary. (Singh)
2. Right to silence applies only after detention (Hebert)
3. The police can continue to question and persuade the accused
once he has consulted counsel (Hebert). They are not obligated to
provide access to counsel again unless there were material
changes in the circumstances (Sinclair)
4. The right does not affect voluntary statements made to fellow cellmates (Hebert)
Use of undercover agents to observe the accused in cells is okay as
long as police dont engage in active elicitation designed to undermine
the accuseds choice not to speak to police. (Hebert)
Was the statement
COMMON LAW CONFESSION RULE (Oickle)
rendered involuntary? If a statement of the accused is made to person of authority (i.e.
police), the Crown must prove beyond a reasonable doubt that the
statement was voluntary
Consider the totality of the circumstances
Confessions can be rendered involuntary because of:
1) Threats or promises that induce the confession (Ibrahim,
Boudreau)
2) An atmosphere of oppression that compels a suspect to speak in
order to bring ordeal to end (Hobbins) (deprivation of food, etc)
3) Where suspect lacked operating mind (Ward v. the Queen;
Horvath v. the Queen; R. v. Clarkson)
If the common law confessions rule is breached, it results in
the automatic exclusion of the statement
7. Was the detention
YES NO Charter breach
lawful?
NO Charter breach (either s. 7, 9 or 10)
8. If a Charter breach Apply Grant exclusion of evidence test.
was found, should the
27
evidence be excluded
under s. 24(2)?
R V SIMPSON 1993 Ont CA
Ratio: Police have authority for investigative detention with articulable cause to link person to
offence.
Facts: Police stopped a vehicle on basis that person was driving away from what they were
told was a crack house; Police stopped and searched Simpson and found crack.
Issues: Do police have authority to detain someone without arrest?
Decision: In this case, arrest was improper bc not enough grounds for detention. Police do
have authority to do investigative detention with articulable cause.
Reasons: Not enough articulable cause.
Precedent: Represented a profound change in Canadian law, which did not generally
authorize police to detain individuals short of arrest (even though that was the common
practice).
R V MANN 2004 SCC
Ratio:
1) Investigative Detention: There is a common law police power of investigative detention.
Police officers may detain an individual for investigative purposes if there are reasonable
grounds to suspect on the totality of the circumstances that the individual is connected
to a particular crime, and that such a detention is necessary. It must be brief and no duty to
answer questions of police.
2) Search Powers Incident to Investigative Detention: Police have authority to search
incident to investigative detention. It must be a protective search, meaning: a) only a pat
down search b) must be a search for weapons in order to protect office or public safety c)
Only permissible when there are reasonable grounds to believe that safety at risk d) Must
be done reasonably.
Facts: Police received call about break and enter with description of suspect. At scene, Mann
walking and stopped by police who said matched to a tee the description. Officer did a pat
down search and felt something soft in pocket. Officer reached in a pulled out a bag of
marijuana. In another pocket, found two valium.
Issues: Do police have authority for investigative detention? If so, do police have search
powers incident to investigative detention?
Decision: 1) Officers had reasonable grounds to detain Mann. 2) There were reasonable
grounds for a protective search of Mann. 3) Seizure of marijuana unlawful. Officer went too far
by reaching into Manns pocket. Evidence excluded under 24(2)/
Reasons: 1) He closely matched the description and was near the scene of crime which led
officers to reasonably suspect he was involved in the crime and should be investigated further.
2) Logical possibility that Mann, suspected of the crime, had B&E tools that might endanger
officer safety. On balance, pat down was justified. 3) Should have stopped when felt something
soft. No reason to believe safety was in question any longer and violated REP over pocket
contents.
Post-Mann: Decision received negative criticism. Filling a gap in police powers with common
law rather than leaving matter to parliament to address. No mention at all about way police
powers impact marginalized communities. Racial minorities and economically disadvantaged
are more frequently detained
R V CLAYTON 2007 SCC
Ratio: Police have a common law power to detain an individual so long as detention is
reasonably necessary based on the totality of the circumstances. Deciding whether a
detention is reasonably necessary in given circumstances will depend on factors like:
1. The nature of the situation, including the seriousness of the offence,
28
2. the information known to the police about the suspect or the crime, and
3. the extent to which the detention was reasonably responsive or tailored to these
circumstances, including its geographic and temporal scope.
All of which involves balancing the seriousness of the risk to public or individual safety with
the liberty interests of members of the public to determine whether the nature of the stop is
no more intrusive than is reasonably necessary.
Confirms that, as established in Mann, searches will only be permitted where the
officer believes that his or her safety, or that of others, is at risk.
Facts: Police set up vehicular blockade minutes after receiving 911 call from a strip club that
10 black males were outside and 4 had guns. Caller identified four vehicles. When a vehicle
attempted to leave by rear exit (not one of the vehicles described in the call), police stopped it
stopping every car even if it didnt match. Farmer driving and Clayton passenger. Police
asked men to get out of car bc suspicious, esp bc passenger was wearing leather gloves and it
was a warm day. When Clayton got out of the car, he ran. Police caught him and found a
loaded gun. Upon searching car, found a second firearm. Clayton argued that police had no
authority to make the initial stop. Unlike in Mann, the police were unable to say that people
detained closely matched the description of the perpetrators.
Issues: Do the police have a common law power to conduct this kind of investigative
detention?
Decision: Yes. Police have a common law power to detain an individual so long as detention is
reasonably necessary in the totality of the circumstances.
Reasons: There is a common law police power to conduct criminal investigative roadblock
stops of vehicles and their occupants. Such roadblocks must be tailored to the information
possessed by police, seriousness of the offence being investigated, and the temporal and
geographic connection bw the situation being investigated and the timing and location of the
roadblock.
Dissent: Mann required a clear nexus to crime, so this extension should be linked to this
specific set of facts around vehicular blockades to find firearms in a certain location.
Precedent: Police powers in Mann are supplemented with a general detention power; even
broader backdrop to Mann, which gives clear authority in those circumstances
R V. GRANT 2009 SCC
Ratio:
1. 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 the restrictive
request or demand, or a reasonable person would conclude by reason of the state conduct
that he or she had no choice but to comply.
2. In cases where there is no physical restraint or legal obligation, it may not be clear whether
a person has been detained. To determine whether the reasonable person in the individual's
circumstances would conclude that he or she had been deprived by the state of the liberty of
choice, the court may consider:
a) The circumstances giving rise to the encounter as would reasonably be perceived by the
individual: whether the police were providing general assistance; maintaining general
order; making general inquiries regarding a particular occurrence; or, singling out the
individual for focussed investigation.
b) The nature of the police conduct, including the language used; the use of physical
contact; the place where the interaction occurred; the presence of others; and the
duration of the encounter.
c) The particular characteristics or circumstances of the individual where relevant,
including age; physical stature; minority status; level of sophistication.
Facts: Police patrolling near Toronto school. Grant, a young, black man was walking down the
29
street and came to attention of two plainclothes officers. They say him fidgeting with jacket
and told a third, uniformed officer to chat with him on the street. He was asked for name and
address and after adjusting his jacket, asked to keep hands in front. Two additional officers
came back. When Grant was asked if he had anything he shouldnt, he replied a small bag of
weed and a firearm.
Issues: Were Grants s. 9 rights violated? When is a person considered detained for
purposes of the Charter?
Decision: Yes. Grant was detained w/o reasonable grounds and therefore it violated his s. 9
rights.
Reasons: McLaughlin -- Grant was detained when he was told to keep his hands in front of
him. There were no legal grounds to detain him and therefore it violated his s. 9 rights.
Dissent: Binnie -- Worries that with the majority approach, encounters with police that
average citizens would consider left them with no choice but to comply are denied the status
of detentions through the device of putting in their place an artificially robust and assertive
reasonable person. Creating a reasonable person who is assertive, unfearful of police and
knowledgeable of their rights. Important for visible minorities who may feel especially unable
to assert rights to police. Says the focus should be on what the police were intending rather
than what the reasonable person perceived to be happening.
R V SUBERU
Ratio: From the moment someone is detained, section 10(b) is engaged and the police have
an obligation to inform the detainee of right to counsel. Immediacy only subject to concerns
for officer or public safety. Once engaged, s 10(b) imposes informational duty (must inform
detainee of right) and implementational (must provide detainee with reasonable opportunity
to retain and instruct counsel). Also requires police to refrain from eliciting incriminatory
evidence until s/he has a reasonable opportunity to reach a lawyer, are unequivocally waived
right to do so.
Facts: Suberu and friend shopping using stolen credit card. LCBO employee, having been
alerted, called police. Suberu walked past police officer and said he did this, not me, so I
guess I can go. Officer followed Suberu outside and questioned him. Officer determined he
had reasonable and probable grounds for arrest after seeing shopping bags in back of car.
Upon arrest, gave him his rights, including right to counsel. Issues is whether right shouldve
been given at outset of interaction.
Issues: Was Suberus s 10(b) rights violated by failing to inform him of the right upon
detention? Is the police duty to inform an individual of right to retain and instruct counsel
under s. 10(b) of the Charter triggered at the outset of investigative detention?
Decision: 1) Suberus s 10(b) right was not violated. Yes. From the moment someone is
detained, section 10(b) is engaged and the police have an obligation to inform the detainee of
right to counsel.
Reasons: McLaughlin 1) No detention occurred when officer spoke to Suberu in van. Applied
Grant detention analysis. A) Circumstances giving rise to encounter: Officer was trying to
figure out if Suberu was involved rather thank] deprive him of liberty. B) Police conduct: He
was doing preliminary investigative questioning that fell short of detention. C) Individuals
Personal Circumstances: No evidence that Suberu believed he couldnt leave or evidence of
his emotional or personal circumstances. Therefore no detention and his right to counsel was
not yet triggered. 2) Concerns about compelling self-incrimination and interference with liberty
that 10(b) seek to protect are present as soon as detention occurs without delay means
immediately
Dissent: Binnie Majority interpretation requires court to underestimate coercive powers of
police and over estimate resilience of Cdn population in face of such commands. Would have
found on Grant detention test that Suberu was detained. Police mean what they say when
they tell someone to stay put thus Suberu correctly assumed that he had no choice but to
comply. Police were not doing general questioning but responding to a specific incident.
Would have found detention arbitrary and violation of s. 9
30
The burden is on the Crown to prove, beyond a reasonable doubt, that the statement was
voluntarily made
31
Confessions can be rendered involuntary: 1) because of threats or promises that induce the
confession 2) due to an atmosphere of oppression that compels a suspect to speak in order to
bring ordeal to end 3) where suspect lacked operating mind when speaking 4) where police
engaged in trickery that is shocking to the community.
Facts: Oickle given Charter rights but many thought police had exerted oppressive
circumstances encouraged him, promised not to subject fianc to polygraph
Issues: How high is the standard for involuntariness? How much is required before will is
overborne?
Decision: This did not beach CLCR.
Reasons: For statements made by an accused to a person in authority to be admissible, the
Crown must establish, beyond a reasonable doubt, that the statement was voluntary in the
reasonable doubt, that the statement was voluntary in the sense that it was not the product of
a will overborne by threats, promises, or inducements; by oppressive circumstances, or the
lack of an operating mind.
R V SPENCER 2007
Ratio: standard for involuntariness - influence must be so overbearing that it can only be said
that the detainee has lost any meaningful independent ability to choose to remain silent, and
has become a mere tool in the hands of the police.
Facts: Accused and his girlfriend arrested Accused confesses to robberies after requesting
lenient treatment for girlfriend and being permitted to visit with her Whether statements
voluntary
Issues: whether the accused had an effective choice and whether his will was overborne
Decision: Voluntary used Oickle
Reasons: A promise renders a statement involuntary only if the quid pro quo provides a
strong enough inducement to raise a reasonable doubt about whether the will of the suspect
was overborne. Accordingly, while a quid pro quo is an important factor in establishing the
existence of a threat or promise, it is not by itself determinative. It is the strength of the
inducement, having regard to the particular individual and his or her circumstances, that is to
be considered in the overall contextual analysis into the voluntariness of the accuseds
statement.
Fish J - the will of the detainee is said to have been overborne only in the sense that he or
she would not otherwise have given a statement but was persuaded to do so in order to
achieve an expected result to avoid threatened pain or achieve promised gain. A statement
thus given is the result of a calculated decision by an operating mind; it is nonetheless
considered involuntary (para. 32) dissent - worried about not GRANT Grant is remedy
for beach of right this is common law if we breach right to counsel or silence may or may
not be excluded bc have to go to 24(2); if you breach CLCR, it is OUT appealing bc 1. burden
is on Crown, whereas right breach is on applicant; 2. if cant show voluntary, no more analysis
struck; at common law only statement is excluded, not stuff found bc of statement here
youre better of going to charter if concerned about derivative
32
B. RIGHT TO COUNSEL
Charter s 10(b)
Components of
right (Sinclair)
What obligations
are placed on the
police by 10(b)?
What obligations
are on the
accused?
Can you waive
your right to
counsel?
Can the accused
choose counsel?
Can you have
access to legal aid
for counsel?
R v MANNINNEN [1987]
Ratio: Section 10(b) imposes following duties on police: 1) Informational police must inform
detain of right to counsel and 2) Implementational police much provide detainee with a
reasonable opportunity to exercise the right to retain and instruct counsel without delay. 3)
Duty to cease questioning or attempting to elicit evidence from detainee until given a
reasonable opportunity to retain and instruct counsel.
33
Facts: Two plain clothes officers drove to site acting on information given two days after a
robbery. Manninnen arrived in what was described as stolen car used armed robbery. Accused
was arrested and told his rights. Said he wasnt saying anything until he saw his lawyer. Police
continued to question and accused said enough for conviction. There was a telephone in the
room and police did not offer for accused to use it.
Issues: Was Manninens s 10(b) right violated? What duties are imposed on the police by s.
10(b)
Decision: Yes. Violation of s. 10(b). Conviction quashed, evidence excluded and new trial
ordered.
Reasons: Police had a duty to provide opportunity to exercise right to counsel and didnt offer
him a phone even though one was available. Detainee doesnt need to explicitly ask. Police
should have ceased questioning until opportunity to exercise right was given.
R v BRYDGES 1990 SCC
Ratio: Access to Legal Aid or duty counsel is part of the informational component of s. 10(b)
right to counsel. Police must tell detainees about existence of such services and hold off
questioning until they have had reasonable opportunity to reach counsel. A detainee may,
either explicitly or implicitly waive their right to counsel, but the standard will be very high
where alleged waiver is implicit.
Facts: Accused charged with second-degree murder and asked if they had any free legal aid
available bc wouldnt be able to afford a lawyer. Police asked if there was a reason for wanting
to talk to a lawyer and he replied no. Accused then continued to answer questions and gave
prejudicial statements until he eventually asked for a lawyer and was given one.
Issues: Was Brydges waiving his right to counsel when he first said that he didnt need to
speak to a lawyer?
Decision: No. Brydges did not waive his right to retain counsel under s. 10(b).
Reasons: The standard for waiving the right to counsel is very high. The failure of the police
to inform accused about the existence of legal aid or duty counsel was a restriction on his right
to counsel
Precedent: Following case, Ontario set up 24 hr Brydges Line so detainees can contact duty
counsel or counsel paid by legal aid.
R v PROSPER 1994 SCC
Ratio: S. 10(b) does not impose a positive obligation on govts to fund duty counsel programs
for those detained outside regular business hours. However, where detainee is prevented from
exercising 10(b) right bc of absence of duty counsel program, 10(b) requires police to hold
questioning until detainee has a reasonable opportunity to reach counsel.
B. RIGHT TO SILENCE
Charter s. 7
Limits on right to
silence (What are
the police entitled
to do?)
Everyone has the right to life, liberty and security of the person.
A residual right to silence is included under s. 7 in PFJ (Hebert) -- 1)
notion of voluntariness and 2) principle against self incrimination
A person in the course of the criminal process has the right to choose
whether to speak to the police or remain silent
1. Police can carry on persuading and questioning a detainee
EVEN after they have explicitly stated they want to stand on
their right to silence AS LONG as the questioning doesnt
render them involuntary. (Singh)
2. Right to silence applies only after detention (Hebert)
3. The police can continue to question and persuade the accused once
he has consulted counsel (Hebert). They are not obligated to provide
access to counsel again unless there were material changes in the
circumstances (Sinclair)
34
Did the
questioning render
the accused
involuntary?
4. The right does not affect voluntary statements made to fellow cellmates (Hebert)
5. Use of undercover agents to observe the accused in cells is okay as
long as police dont engage in active elicitation designed to
undermine the accuseds choice not to speak to police. (Hebert)
Determined by the Common Law Confession Rule (Oickle)
If a statement of the accused is made to person of authority (i.e. police),
the Crown must prove beyond a reasonable doubt that the statement
was voluntary
Consider the totality of the circumstances
Confessions can be rendered involuntary because of:
1) Threats or promises that induce the confession (Ibrahim,
Boudreau)
2) An atmosphere of oppression that compels a suspect to speak in
order to bring ordeal to end (Hobbins) (deprivation of food, etc)
3) Where suspect lacked operating mind (Ward v. the Queen;
Horvath v. the Queen; R. v. Clarkson)
If the common law confessions rule is breached, it results in
the automatic exclusion of the statement
35
to choose whether or not to speak and therefore did not violate his right to silence under s. 7.
Section 7 does not require the police to refrain from using reasonable persuasion to encourage
detainees to speak.
Reasons: Charron -- Provided that the detainees rights are adequately protected, including
the freedom to choose whether to speak or not, it is in societys interest that the police
attempt to tap this valuable resource. (para. 45) The ultimate question is whether the
accused exercised free will by choosing to make a statement.
Dissent: Fish -- A right that need not be respected after it has been firmly and unequivocally
asserted any number of times is a constitutional promise that has not been kept. (para. 70);
more draconian initiatives might prove more effective still; Charter must go further than
CL confession rule. If you say you want to stand on your right to silent, police should have to
respect that.
Precedent: Oickle & Hebert intersection -- If Crown proves beyond a reasonable doubt that
statement is voluntary, there can be no violation of s. 7 right to silence. Must balance freedom
to speak or not, and societys interest in solving crime. The majority found
that Oickle enhances, rather than subsumes, the s. 7 right to silence; at common law, the
protection afforded by the confessions rule also guards against the Charter concern of
potential state abuse over a detained suspect.
R v SINCLAIR 2010 SCC
Ratio: 1) Right to counsel under s. 10(b) does not require lawyer to be present throughout
interrogation by police 2) Where a detainee has already received legal advice prior to police
interrogation, s. 10(b) only requires the police to provide a reasonable opportunity to consult a
lawyer again if there are material changes in the circumstances. Material changes include: a)
new procedures involving detainee (e.g line up) b) change in jeopardy (e.g new charges) c)
indication that a detainee who initially waived right to counsel may not have understood that
right.
Facts: Sinclair arrested for murder and upon arrest, declined his right to speak with counsel.
When asked again, he accepted and spoke with lawyer for 3 min. Police interrogated him for 5
hours during which he expressed discomfort about being questioned w/o presence of lawyer
and wanted to speak to lawyer again. Police told him he had the choice as to whether or not to
speak and refused to let him see lawyer again.
Issues: Are police required to give detainees access to counsel beyond the initial consultation
with duty counsel?
Decision: No. Police were not in violation of his rights by not allowing another consultation
with lawyer.
Reasons: McLachlin and Charron Unless there is a material change in the detainees
situation, the initial consultation with the lawyer satisfies s. 10(b). Section 10(b) does not
mandate presence of defence counsel during interrogation. Section 10(b) should be
interpreted in a way that fully respects its purpose of supporting s. 7 right to silence this is
achieve through initial lawyer consultation which gives detainee enough information to choose
whether or not to speak with police.
Dissent: Binnie Police should provide reasonable access to counsel from time to time as
circumstances evolve. Would have found a breach of 10(b). - You have reached counsel. Keep
your mouth shut. Press one to repeat this message. (para. 86)
LeBel and Fish Detainees should have right to counsel whenever they want on request.
People who are not detained have that right, so no logical grounds for saying that those
detained should have less access.
36
Convictio
ns
(Marshall)
Racial
Bias
37
overeat with regard to non-white groups. Crown alleged reasonable apprehension of bias
against J Sparks
Decision: Acquittal restored. No reasonable apprehension of bias from trial judge.
Reasons: McLachlin (+3) Comments reflected the context of the case, which was well
known to the judge and any informed community member. (Iacobucci, Cory) -- Comments
were regrettable but do not meet the standard of bias. Majority (6): decision was justified
Dissent: Lamer, SopinkaStereotyping police not helpful for progress; conclusions not based
on evidence.
Role of Crown
Counsel
Role of
Defence
Counsel
Plea Bargains
38
CRIMINAL LIABILITY
actus non facit reum, nisi mens sit rea - an act does not make a person guilty unless his mind
(or intention) is also guilty
Criminal Liability AR + MR Defences = CL
1. Actus reus (physically voluntary act or omission)
2. Mens rea (guilty mind; fault element)
3. Absence of any defences
Affirmative defences (have AR & MR but shouldnt be liable. e.g. self
defence)
Negative defences (mistake of fact - did not have MR e.g. intoxication)
Exemptions to criminal liability (e.g. children, mental disabilities)
Crown bears the burden of est. AR and MR beyond a reasonable doubt.
Principle of
AR and MR must occur at the same time.
Contemporaneit Rule is not applied strictly and relaxed where it would produce absurd
y
results. (Fagan v commissioner of metropolitan police, Miller, Cooper,
Meli)
Principle of contemporaneity doesnt require complete coincidence of AR
and MR as long they are part of a continuous transaction. Determination
depends on the nature of the act. (Cooper).
Defining
To determine the definition of an offence, look to:
Offences
1. Statute does criminal code define term?
2. Common Law what have courts said?
If neither of those, then you will need to engage in statutory
interpretation. (e.g. What does obscene mean?)
Actus Reus -- look at crime itself, interpretation portion and/or the
definitions section at beginning, section 2
Status Offences
Crimes punished with no act or omission. Punished for a status or for
being a certain way. Have fallen into disrepute and are not a
meaningful part of our contemporary criminal law. Now, if you found a
true status offence, it would likely be unconstitutional under s. 7.
ACTUS REUS
Elements of AR
1. Voluntariness
2. Omissions
1.
2.
3.
4.
A physically voluntary
Act or omission;
Sometimes in certain circumstances;
And sometimes causing certain consequences.
Physical voluntariness must be element of Actus Reus of any offence
(Larssoneur). Key issue is autonomy. author of own misfortune
Punishing involuntary actions is unjust because it conflicts with the
assumption in criminal law that individuals are autonomous and freely
choosing agents (Ruzic).
A person will not be criminally liable for failing to act unless he or she is
under a legal duty to act. Two basic circumstances:
1. Specific Omission Offences -- Where the offence specifies and
criminalizes a particular omission to exercise a legal duty.
S. 50(b) failure to report high treason
S. 127 failure to obey court order
S. 129(b) omitting to assist a police officer when requested
S. 252(1) failing to stop and assist after involved in accident
S. 254(5) failing to provide breath sample.
2. General Omission Offences -- Where offence states generally that its
39
3.
Circumstances
4.
Consequences
Causation
Factual Cause:
Legal Causation:
40
Multiple
Contributg
Causes
Intervening
Causes
In first degree murder cases under s. 231(5) and other sections where
the language caused by that person is used, legal causation test is:
the actions of the accused must form an essential, substantial, and
integral part of the killing of the victim (Harbottle)
Will usually involve actual physical involvement in the killing (Harbottle).
The higher standard used for first degree murder under 231(5) and
similar language ONLY. Otherwise, Smithers standard applies (Nette).
Multiple causes are not a problem. All that matters is if the accuseds
actions were a contributing cause to the outcome. Smithers standard
still applies.
Generally where actions of intervener are a direct result of the accuseds
actions, it will not sever the chain of action. It is only where the
accuseds actions do not precipitate the direct cause. (Pagett pregnant
gf, Blaue JW blood transfusion)
TEST:
Were the actions of the accused a significant contributing outcome?
(Maybin) Two approaches for analyzing the intervening cause:
a) Reasonable foreseeability: Was the general nature of the
intervening act reasonably foreseeable? (Maybin)
b) Independence: Was the intervening act sufficiently
independent and overwhelming to sever the impact of the
accuseds actions? (Maybin)
CONTEMPORANEITY
Fagan v. Commissioner of Metropolitan Police (1969)
Ratio: Not always necessary for guilty act and the intent to be completely concurrent.
Principle of contemporaneity can be massaged to create a fair result.
Facts: Fagan accused of assaulting police officer after accidently driving onto his foot and
then not moving the car had intent after driven onto foot Fagan argues cant be convicted bc
of principle of contemporaneity. Crown generates continuing act theory assault carried on
and mens rea attached when came in
Decision: Guilty. Assault continued and the MR attached to assault, therefore making it
punishable. Events werent discreet enough to violate principle of contemporaneity.
R. v. Miller (HL 1982)
Ratio: Unintentional act followed by intentional omission to rectify can be regarded in total as
an intentional act. Does not violate the principle of contemporaneity.
Facts: Smoking while lying down on mattress. Falls asleep and cig falls onto mattress. He sees
it but does nothing, goes to another room and goes back to sleep. Charged with arson.
Issues: Was it a continuous act?
Decision: Guilty.
Reasons: Dorothys Dog applies unintentional act followed by intentional omission to rectify
can be regarded in total as an intentional act. It should be read as all part of the same
behaviour. HL also said that you could deal with this as an omission problem (in addition to
coincidence)
R. v. Cooper (1993 SCC) adopts contemporaneity
Ratio: Principle of contemporaneity doesnt require complete coincidence of AR and MR as
long they are part of a continuous transaction. Determination depends on the nature of the
act.
41
Facts: Accused charged with murder for strangling a woman. He remembers getting angry,
grabbing her by neck and intending to do physical harm. Then testified he lost consciousness
and didnt recall causing her death black out, no mind.
R. v. Meli (1954)
Ratio: AR and MR for murder coincided as part of a continuing transaction.
Facts: Meli lured a man, beat him and threw him off a cliff, thinking he was dead. Autopsy
showed that he died of exposure over cliff death came after.
Issues: Were the AR and the MR for murder contemporaneous?
Decision: Guilty of murder.
Reasons: This was a continuing transaction where he intended to kill and dispose of the
person. (Could also have used causation theory ultimately caused the death of the victim.)
VOLUNTARINESS -
42
OMISSIONS
Status:
have fallen into disrepute and are not a meaningful part of our contemporary criminal
law (ie. offence in which the person is punished for being something features of the
person , some argue pseudo-status offences ie. bawdy house keeping (others argue
you have to do acts within this) ie. terrorism put acts in so ppl can have
control/agency
Omissions:
liability argued on failure to do something; going to have to find legal obligation, bc
doesnt like punishing for things dont do - General principle a person will not be
criminally liable for failing to act unless he or she is under a legal duty to act - no legal
duty to be a good Samaritan traditional common law perspective is that there is no
duty to assist one excpetion law of Quebec in Q Charter, s.2 imposes duty to
assist person in imperil if you dont put yourself at risk affirmative duty
Statutory Law
R v Browne (1997 Ont CA)
Ratio: Must be an undertaking before there is a legal duty within s. 217. No pre-existing
relationship that creates the legal duty.
Facts: Two drug dealers, Browne and Greiner. G swallowed bag with crack cocaine and bag
ruptured. Brown said he would take her to hospital by taxi. She died. He is going by taxi to
be distanced from it in some form. Trial -- in failing to do this he showed wanton and reckless
endangerment of life.
Charge: s. 219 Criminal negligence causing death.
Issues: Was there an undertaking? Did Browne have a legal duty arising from an
undertaking within the meaning of s. 217 to take her to hospital. If so, was he criminally
negligent causing death for omitting to do what was his duty to do.
Decision: Not guilty. No undertaking and therefore no legal duty.
Reasons: Abella -- An undertaking has to be something upon which reliance could be placed
and this was not considered an undertaking too casual, too quick. Saying take you to
hospital is not a firm enough undertaking.
Notes: Prof disagrees he undertook and discharged a duty. Could say there is an
undertaking to save her life by taking her immediately to hospital and he failed in doing that.
In so doing, he caused the death of his companion.
Common Law - not establishing offense, just duty
R v Coyne (1958 NBCA)
Ratio: A duty imposed by law used for criminal negligence can be found in common law or
statute.
Decision: Legal duty to take reasonable care when handling dangerous objects like a rifle
exists at common law and therefore can snap into the criminal negligence.
Popin (1981 Ont. CA)
Ratio: A duty can arise at statute or common law.
Facts: Child abuse case
Issues: What does duty imposed by law contained in definition of criminal negligence
mean?
Decision: Guilty of criminal negligence
Reasons: There is a CL duty for a parent to take reasonable steps to prevent child from being
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44
45
46
MENS REA
Remember the maxim: actus non facit reum, nisi mens sit rea - the act is not guilty
unless the mind is also guilty
Best thought of as the required state of mind
MENS REA
Each different crime has a specific fault element which must be related to the actus reus of
that crime.
Principle of Symmetry: the prescribed mens rea must attach to every element of the
actus reus.
DETERMINING THE REQUISITE MENS REA
Statutory Provision
Language governs
Is the offence a true crime or regulatory
Mens rea is
The mens rea is
47
Yes if.
presumptively any
subjective form of
mens rea (Buzzanga
and Desrocher)
Stigma
offence with
objective
mens rea
(Vaillancourt)
True crime
with strict or
absolute
liability
(Hundal)
Risk of loss of
liberty with
absolute
liability (BC
Motor
Vehicles)
presumptively strict
liability (Sault Ste
Marie)
WILFUL BLINDNESS
If the statute is silent, the mens rea for a true crime is satisfied by any of the above
(Buzzanga and Desrocher)
If the crime is a stigma offence, the mens rea cannot be below this line (Vaillancourt;
Martineau; Finta)
Objective
Forms of
Mens Rea
(reasonable
person in
accuseds
position would
have had the
required guilty
mind or would
have acted
differently)
CRIMINAL NEGLIGENCE
PENAL NEGLIGENCE
True crimes cannot have a mens reas below this line (Hundal)
STRICT LIABILITY
If the statute is silent, this
is the default mens rea for
a regulatory offence. (Sault
Ste Marie)
ABSOLUTE LIABILITY
Not permitted when the
48
punishment involves a
based on an absence of mens rea.
potential loss of liberty (BC
Motor Vehicles)
Stigma Offences
Constitutional requirement to have a subjective MR to justify the
stigma associated with the conviction and sentence of the offence
(Vaillancourt)
Stigma offences must have symmetry bw all elements of AR and MR
the whole way through (Vaillancourt)
Rationale: it is a PFJ that there must be proportionality bw the moral
blameworthiness of the person and the seriousness of the conduct
(Vaillancourt) therefore subj foresight is required.
Includes murder (Vaillancourt, Martineau), attempted murder, theft
(Vaillancourt), crimes against humanity (Finta)
Manslaughter is NOT a stigma offence (Creighton)
Regulatory
Lower form of MR. Three phases of MR developed:
offences
Phase 1: absolute liability
No mental fault requirement. Upon proof by the Crown beyond a
reasonable doubt that the actus reus is made out, the accused is found
guilty (Pierce Fisheries).
Phase 2: strict liability
Middle standard bw subj MR and absolute liability.
This is the presumption if the statute is silent (Sault Ste Marie)
Upon the Crown proving the actus reus beyond a reasonable doubt, the
burden shifts to the accused to prove due diligence on a balance of
probabilities (Sault Ste Marie)
Phase 3: constitutional constraints
You can not be exposed to a loss of liberty without mens rea. Absolute
liability and a potential for a loss of liberty can no longer be
combined. (BC Motor)
Reverse burden on accused to show due diligence is constitutional
(Wholesale Travel)
Is it a true crime
1. Nature and seriousness of the offence
or a regulatory
o Purpose of object of the legislation?
offence? (Prue
o High stigma?
and Baril)
2. Seriousness of the penalty
INTENT
Common Law Presumption of Subjective Mens Rea - As for the role of the
presumption of subjective fault in assessing competing interpretations, it sets out an
important value underlying our criminal law. It has been aptly termed one of the
presumptive principles of criminal justice: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R.
49, per Charron J., at paras. 22-23. While the presumption must and often does
give way to clear expressions of a different legislative intent, it nonetheless
incorporates an important value in our criminal law, that the morally innocent should
not be punished. - Justice Cromwell in R v ADH, 2013 SCC 28, para 27.
49
what the individual intended, not to fix him with the intention that a reasonable person might
be assumed to have in the circumstances
Meaning of -Wilfully - means intentionally causing an outcome or recklessly, but section
doesnt include recklessness
Facts: Ds put out a satirical document that appeared to be promoting hatred of French
Canadians. They intended the document to support building a French high school. The trial
judge treated testimony that they wished to create a controversy, furor, and uproar as
admission that they had a guilty mind.
Charge: Wilfully promoting hatred s. 319(2) (281.2(2))
Issues: What is the meaning of wilfully? Did the trial judge misdirect himself as to the
meaning of willfully? What does the word willfully in s.319(2) mean?
Decision: New trial ordered b/c intent was not to promote hatred
Reasons: An intention to create controversy, furor and uproar is not the same thing as an
intention to promote hatred and it was an error to equate them.
As a general rule, a person who foresees that a consequence is certain or substantially
certain to result from an act which he does in order to achieve some other purpose, intends
that consequence [at law]. The actors foresight of the certainty or moral certainty of the
consequences resulting from his conduct compels a conclusion that if he, none the less, acted
so as to produce it, then he decided to bring it about (albeit regretfully), in order to achieve his
ultimate purpose.
R v Tennant and Naccarato Ont CA 1975
Ratio: Distinguishes bw subjective and objective mens rea where liability is imposed on a
subjective basis, what a reasonable man ought to have anticipated is merely evidence from
which a conclusion may be drawn that the accused anticipated the same consequences. On
the other hand, where the test is objective, what a reasonable man should have anticipated
constitutes the basis of liability.
R v Steane 1947 UK - the true meaning of intention and the reasons of its confusion with
motive
Ratio:
Facts: Steane was a radio announcer during the war and was forced by Nazis into reading the
German news and assisting with film production. Charged with doing acts to assist the
enemy. Steane challenged on the ground that he only did it for fear for his wife and children.
Issues: Can he have a guilty mind if he never intended to assist the enemy?
Decision: Conviction quashed - motive has allowed acquittal of the accused since they
highlighted the moral gap between what Steane did (help the enemy) and his purpose (save
his family).
Knowledge that propaganda broadcasts would assist the enemy was defeated by his innocent
intention to protect himself and his family. It seems that where duress is involved, knowledge
is not sufficient intent - requires desire (direct intention).
This is not a consistent interpretation of M/R. Usually knowledge (indirect intention) that
actions will cause prohibited results is sufficient intent. Confused intent with motive, as well
as with duress.
Reasons: Accuseds intent was negative bc he only did it under force of threat and to save
wife and children from concentration camp.
Hibbert v The Queen 1995 SCC - Duress does not raise M/R requirement to desire
clarifies Steane duress does not negate MR (which requires knowledge, not desire), but it can
50
be a defense
Ratio: Purpose in s. 21(1)(b) means intent for the purposes of mens rea. Duress can only
negate mens rea for some offences and will depend on wording of statute. Duress available as
CL defence though.
Facts: Accused testified that he was forced at gunpint to lure victim, his friend, down into
lobby where he was then shot.
Charge: Aiding and abetting murder
Issue: What is the applicability of the defence of duress in the context of aiding and abetting
the commission of an offence under s. 21(1)(b) of the Criminal Code?
Decision: Appeal allowed. Trial judges instructions were incorrect. New trial ordered.
Reasons: Lamer -- Trial judged erred in instructing jury that mens rea could be negated by
duress. Duress is capable of negating the mens rea for some offences (is the definition of the
offence as written by Parliament capable of supporting the inference that the presence of
coercion can have a bearing on the existence of mens rea?), but not for aiding the commission
of an offence under s. 21(1)(b). Nonetheless, duress can still function as an excuse-based
defence at common law even if Crown successfully proves elements of the offence. .
RECKLESSNESS
Recklessness is a lower form of intention. Concerned with the consciousness of risk and
then conduct despite that risk - must be subjectively aware of the risk
Reckless: person foresees that action MAY cause the result and takes deliberate and unjustifiable
risk anyway; the degree of likelihood that person foresaw is anything less than certainty (anywhere
between 0 and 100% chance).
Distinct from intent - about seeing a risk, not a virtual certainty; distinct from negligence
WILLFUL BLINDNESS
type of knowledge subjectively knew but didn't question; Willful blindness is about the
recklessness related to knowing the facts. Ask: did the accused deliberately choose not to
inquire bc he knew that looking would fix him with knowledge?- Suspicions aroused (re:
circumstances or that actions will cause consequences) but deliberately close eyes to risk,
does not investigate further
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Recklessness is found in the attitude of one who, aware that there is danger that his conduct
could bring about the result prohibited by the criminal law, nevertheless persists, despite the
risk. (Sansregret pg. 447)
Negligence is tested by the objective standard of the reasonable man. A departure from this
accustomed sober behaviour by an act or omission which reveals less than reasonable care
will involve liability at civil law but forms no basis for the imposition of criminal penalties. In
accordance with well-established principles for the determination of criminal liability,
recklessness, to form part of the criminal mens rea must have an element of the subjective.
[Sansregret, pg. 447]
Willful blindness arises where a person who has become aware of the need for some inquiry
declines to make the inquiry because he does not wish to know the truth. (Sansregret, p. 448)
R v Briscoe 2009 SCC
Ratio: Willful blindness can substitute for actual knowledge whenever knowledge is a
component of the mens rea. The doctrine of willful blindness imputes knowledge to an
accused whose suspicion is to the point where he sees the need for further inquiries but
deliberately chooses not to make those inquiries.
Facts: Accused charged with first degree murder, kidnapping and assault. Charged as aider
and abetter (he drove, physically restrained person) but did not do killing. D suspected might
kill her but didnt ask bc he didnt want to know.
Decision: Guilty. Wilful blindness. Knew there was a risk there would be a murder but didnt
want to know.
CRIMINAL NEGLIGENCE
Criminal Negligence
Actus Reus: Section 219: Every one is criminally negligent who (a) in doing anything or (b)
in omitting to do anything that it is his duty to do, shows wanton and reckless disregard for
the lives or safety of others.
Mens Rea: Showing, through your actions, a marked and substantial departure form the
conduct of a reasonable person which shows wanton and reckless disregard for the lives
or safety of others. (Tutton and Waite)
R v Tutton and Tutton 1989 SCC
Ratio: Crim neg is an objective form of MR. Mens rea is a marked and substantial
departure from the conduct of a reasonable person which shows wanton and
reckless disregard for the lives or safety of others.
Facts: Due to religious views, refused to administer insulin to diabetic 5 yr old son. He died.
Charge: Manslaughter through criminal negligence
Issues: Is the test for crim neg subjective or objective?
Decision: Split 3/3
Reasons: Three reasoned that language of section said nothing about subjective
apprehension of risk. Three said there is a subjective aspect in wanton and reckless
disregard.
Precedent: In R v Waite 1989 SCC, judges also divided 3/3 on subjective/objective.
R v Hundal 1993 SCC
Ratio: There is no constitutional principle that requires subjective foresight for criminal
offences. The constitutional bar for true crimes is not below penal negligence. Mens rea for
dangerous driving is a modified objective test: marked departure form the standard of care
52
PENAL NEGLIGENCE
R v Beatty 2008 SCC
Ratio: Mens rea for penal negligence is a marked departure from the conduct of a
reasonable person. Mens rea for dangerous driving is a modified objective test: marked
departure from the standard of care expected of a reasonable person in the circumstances of
the accused
Facts: Drifted into oncoming traffic after momentary lapse and killed three passengers in
other car.
Charge: Dangerous driving causing death (x3).
Issues: Is there a subj element of fault required for dangerous driving?
Decision: Not guilty. Appeal allowed
Reasons: Momentary lack of attention was not a marked departure.
Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal attributes
such as age, experience, and education are not relevant. The standard against which the
conduct must be measured is always the same it is the conduct expected of the reasonably
prudent person in the circumstances. The reasonable person, however, must be put in the
circumstances the accused found himself in when the events occurred in order to assess the
reasonableness of the conduct. (Beatty, para 40)
wanton and reckless disregard required for criminal negligence will exist when, at minimum,
an accused gave no thought to an obvious and serious risk to the life or heath of another
person in circumstances where a reasonable person would have recognized that risk and
avoided it. [F(J), 2008]
53
Charron J. in Beatty: Unlike civil negligence, which is concerned with the apportionment of
loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of
criminal justice require that the law on penal negligence concern itself not only with conduct
that deviates from the norm, which establishes the actus reus of the offence, but with the
offenders mental state. A mere departure from the standard expected of a reasonably
prudent person will meet the standard for civil negligence, but will not suffice to ground
liability for penal negligence. The distinction between a mere departure and a marked
departure from the norm is a question of degree. It is only when the conduct meets the higher
threshold that the court may find, on the basis of that conduct alone, a blameworthy state of
mind. [paras. 6-7]
R v Roy 2012 SCC
Ratio: Confirmed Beatty standard for penal neg. For the purposes of the criminal law, must be
a MARKED (not mere) departure. ASK: 1) Would a reasonable person have foreseen the risk
and taken steps to avoid it if possible? 2) If so, was the failure to foresee the risk and take
steps to avoid it, a marked departure from the standard of care expected of a reasonable
person in the accuseds circumstances?
Facts: Accused pulled motor home into path of oncoming tractor trailer. Accuseds passenger
killed. Roy charged with dangerous driving causing death.
Decision: Not guilty.
Reasons: Cromwell Simple carelessness, to which even the most prudent drivers may
occasionally succumb, is generally not criminal. Mere carelessness = civil negligence. Marked
carelessness = penal neg. Here, there was a single and momentary error in judgment. The
manner of driving does not show that accuseds standard of care was a marked departure
from that expected of a reasonable driver in the same circumstance.
It is critically important to ensure that the fault requirement for dangerous driving has been
established. Failing to do so unduly extends the reach of the criminal law and wrongly brands
as criminals those who are not morally blameworthy. The distinction between a mere
departure, which may support civil liability, and the marked departure required for criminal
fault is a matter of degree. The trier of fact must identify how and in what way the departure
from the standard goes markedly beyond mere carelessness. (para. 30)
54
55
crimes against humanity, must show they had a subjective relationship to crimes against
humanity and not just the underlying act.
Precedent: O
there are certain crimes where, because of the special nature of the
unavoidable penalties or of the stigma attached to a conviction, the principles of fundamental
justice require a mental blameworthiness or a mens rea reflecting the particular nature of that
crime. It follows that the question which must be answered is not simply whether the accused
is morally innocent, but rather, whether the conduct is sufficiently blameworthy to merit the
punishment and social stigma that will ensue upon conviction for that particular offence.
R v De Sousa other result-driven offences
Ratio: whether s.269 of the Criminal Code violated the s.7 of the Charter as it potentially
allowed for prison sentences for "Absolute Liability" offences - held that s.269 did not violate
s.7
due to the lack of stigma or any sort of significant prison sentence attached to the offence it
did not warrant a higher "subjective fault" requirement (R. v. Martineau).
The Court dismissed the argument that the offence would punish the morally innocent by not
requiring proof of intention to bring about the consequences. Instead the offence aims to
prevent objectively dangerous acts (this justification was elaborated on in R. v. Creighton).
Kent Roach, Mind the Gap (pg. 488)
Is it a true crime or
a regulatory
offence?
Enacted in CCC
true crime; when
outside like CDA,
(Wholesale Travel)
Purpose of object of the legislation? (regulatory prevent future
56
PHASE 1: Absolute Liability Upon proof by the Crown beyond a reasonable doubt that the
actus reus is made out, the accused is found guilty (subject to any applicable free-standing
defences)! no MR!
Beaver v The Queen 1957 SCC
Ratio: Possession offences require the Crown to prove that the accused had subjective
knowledge of the nature of the substance cant have absolute liability for true crime
need to prove hard
Facts: Beaver charged with possession of heroin. He thought he had powdered milk and in
fact he had heroin. Crown argued silent on mens rea, so he doesnt need to know (ie. absolute
liability, no mens rea).
Decision: Not guilty of possession. This is a true crime and if statute is silent, we presume
subjective.
Reasons: A person cannot be said to possess that substance unless they knew the nature of
the substance. Here, since it was an honest belief, Beaver had no MR.
R v Pierce Fisheries Ltd 1971 SCC
Ratio: In past, common law imposed strict liability for regulatory offences.
Facts: Accused charged with having undersized lobsters in its possession contrary to the
Fisheries Act - regulatory
Decision: Guilty. Absolute liability.
Reasons: It doesnt matter if company intended it, if they had taken care not to fish for
undersized lobster or didnt even know they had them bc the ACT was made out, which is all
that is required for absolute liability offences.
PHASE 2: Strict Liability - Upon the Crown proving the actus reus beyond a reasonable
doubt, the burden shifts to the accused to prove due diligence on a balance of probabilities.
R v City of Sault Ste. Marie 1978 SCC
Ratio: Courts will no longer interpret regulatory offences as absolute liability offences unless
statute explicitly states that. Common law presumption is now strict liability. Strict Liability
Upon the Crown proving the actus reus beyond a reasonable doubt, the burden shifts to the
accused to prove due diligence on a balance of probabilities. Mens rea is if you take care and
can show you did. Courts presume strict unless legislate says dont want any wont
presume this
Facts: City of Sault Ste Marie charged with polluting a stream contrary to Water Resources
Act.
Decision: Offence of causing pollution is a strict liability offence.
Precedent: Why change the rule? 1) purpose of these offences is to promote careful conduct
in commercial life and mens rea should therefore be about taking reasonable care. 2)
background principle that deprivation of liberty should not be inflicted on someone without a
degree of fault. Why did they reverse the burden? The accused is in a better position to show
it. They can tell you how they took care. Prior to Charter, in this second phase
PHASE 3: Charter Considerations
Reference re Section 94(2) of the BC Motor Vehicle Act 1985 SCC
57
Ratio: 1) PFJ (s.7) are substantive review of law. 2) Section 7 is the parent for ss 8-13. They
are really just specifications of the kinds of things that are required for a just system. 3) It
constitutionalizes Sault Ste. Marie. You will not be exposed to a loss of liberty without mens
rea. Absolute liability and a potential for a loss of liberty can no longer be combined
if risk through imprisonment or probation (otherwise can have absolute)
Facts: BC govt had an offence for driving with suspended license whether or not they know
its suspended.
Issues: Is it constitutional to have absolute liability for driving with a suspended license?
Decision: No. Any regulatory offence that had absolute liability as a consequence and
imprisonment as a punishment is unconstitutional. Offends PFJ by allowing conviction of
morally innocent.
Reasons: A law that has the potential to convict a person who had not really done anything
wrong offends the principles of fundamental justice and, if imprisonment is available as a
penalty, such a law then violates a persons right to liberty under s. 7 (includes substantive
review if law is substantively fair)
R v Wholesale Travel 1991 SCC
Ratio: The reverse burden to show due diligence that is associated with strict liability is
constitutionally acceptable.
Facts: Company charged with false or misleading advertising contrary to Competition Act for
wrongly advertising that its travel packages were wholesale. Accused challenged s. 36 of
Competition Act which created a statutory due diligence defence violated s 11(d) of the
Charter.
Issues: Upon proof of the act, you are presumed guilty (ie. absolute liability). Was the reverse
burden a breach of the presumption of innocence?
Decision: Split decision. still regulatory offense even though up to 5 yrs
Reasons: Lamer violates the presumption of innocence and cannot be justified under s. 1.
Ioaccobucci The reverse burden does infringe s. 11(d) but is justified under s.1. For a
regulatory offences, the reversal of burden is justified bc the purpose is to try to get people to
take care. Cory, LHeureux-Dube no breach of presumption of innocence under s. 11(d).
DEFENCES
Forms of
Defences
1. Negative Defences
No mens rea OR no actus reus
58
is live
Burden of
proof
Justificatio
n vs.
Excuse
action reasonably could acquit? (Osolin; Cinous; Mayaurin) normal rule - once
has this, Crown must prove BRD
Standard BOP
For any defence for which there is an air of reality, the Crown must disprove it
beyond a reasonable doubt.
Applies to mistake of fact, normal intoxication, provocation, duress, self
defence, necessity
Reverse BOP
Burden is on the accused to prove the defence on a balance of probabilities
Applies to mental disorder, extreme intoxication, automatism
What difference does it make if defence is classified as excuse or
justification?
Largely its theoretical and conceptual but there are some practical
implications.
1. It could have effect on how you create criteria you enforce for a defence.
o If its an excuse, will insist more on pressure, immediacy, urgency.
o If justifications are about getting it right, less worried about immediacy.
2. Cannot be sued in civil law for doing the right thing (ie. justification).
3. Cannot be a party to a justified offence, but you could be a party to an excused
offence. (Eg. If you hand someone a gun to shoot their aggressor in justified
self defence, cant be held liable. But if done so and they go commit a robbery,
argue provocation could be held liable.)
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Mens Rea
MR is subjective
1. An intention to apply direct or indirect force to another person; and
2. Knowledge of, or recklessness, or wilful blindness (Sansregret) as to lack of
consent.
3. Consent for MR is about the mind of the accused.
Did the accused have the mental element in relation to the fact of nonconsent (which would be established in AR)
a. Did the complainant affirmatively communicate by words or conduct
an agreement to engage in sexual activity?
b. Silence is not consent (Ewanchuk)
Did the accused honestly believe that the complainant communicated
consent through her words and/or actions?
c. If yes, the accused could argue that the MR did not attach to the AR
and there was a mistake of fact.
1. Is the MR for the offence subjective or objective?
Subjective general rule: If the required mens rea is subjective, the
mistaken belief needs to be honest but NOT reasonable.
a. Is it a sexual assault offence under ss. 271, 272 or 273?
i. YES s. 273.2(b) changes the general test for mistake of
fact. For mistaken belief in consent related to sexual assault,
the mistaken belief requires and honest AND reasonable
belief. Here reasonable means that reasonable steps were
taken to determine if consent was obtained.
1. Presumption is that someone is not consenting unless
you have taken reasonable steps to obtain consent
(Ewanchuk)
2. Was consent vitiated by any of the factors from
273.1(2)
a. Consent given by someone else
b. Complainant is incapable of consenting
c. Accused induced position of trust, power or
authority to obtain consent
d. Complainant expressed, by words or conduct, a
lack of agreement to engage in the activity; or
e. Complainant, having consented to engage in
sexual activity, expresses, by words or conduct,
a lack of agreement to continue to engage in the
60
273 of CCC
(postPappajohn;
1992
amendment
s)
activity.
3. Defence of mistake of fact not available where
mistaken belief in consent arose from self-induced
intoxication (273.2(a)(i)); or recklessness or wilful
blindness (273.2(a)(ii))
a. If belief was due to recklessness, WB or one of
those factors, mistake of fact is no defence and
MR made out
4. Accused must take reasonable steps in the
circumstances known to accused at the time to
determine if there was consent (273.2(b))
a. If accused did NOT take reasonable steps,
mistake of fact is no defence and MR made out
ii. No Mistaken belief must be honest but does not have to be
reasonable
Objective If the required mens rea is objective, the mistaken belief
must be reasonable AND honest.
61
Progression
of Law of
Sexual
Assault
Seaboyer
perhaps more than any other crime, the fear and constant reality of sexual assault affects
how women conduct their lives and how they define their relationship with the larger society.
R v Chase 1987 SCC
Ratio: Definition of sexual assault. Sexual assault is an assault within any one of the
definitions in the CC which is committed in a sexual nature, such that sexual integrity of the
victim is violated. Objective test used to determine the actus reus would a reasonable person
assume the touching is of a sexual nature?
Actus:
Physically voluntary;
Unconsented to;
Touching;
Of a sexual nature.
Mens Rea
Intent to touch;
62
engaged in sex again issue was whether you can give advance consent for something when
later unconscious; no bodily harm, so Jobidaw not issue
Decision: McLaughlin (all of the female judges on the Supreme Court agreed with the majority
reasons) law will never allow someone to provide advanced consent
Reasons: Court makes it clear must be conscious- parliament requires ongoing conscious
consent to ensure not subject of sexual exploitation; need to be capable of asking to stop and
revoke; if consent is voluntary agreement, consent must be specifically consented to each and
every act negates argument of broad advance consent
the Code makes it clear that an individual must be conscious throughout the sexual activity in
order to provide the requisite consent. Parliament requires ongoing, conscious consent to
ensure that women and men are not the victims of sexual exploitation, and to ensure that
individuals engaging in sexual activity are capable of asking their partners to stop at any
point. (3)
the consent of the complainant must be specifically directed to each and every sexual act,
negating the argument that broad advance consent is what Parliament had in mind. (34)
S. 273.1(2)(b) consent not obtained if the complainant is incapable of consenting to the
activity.
S. 273.1(2)(e) Parliament wanted people to be capable of revoking their consent at any
time during the sexual activity. (40)
The dissent disagrees, saying that such consent should not be precluded by law.
The provisions of the Criminal Code regarding consent to sexual contact and the case law
relied upon the Crown were intended to protect women against abuse by others. Their
mission was not to protect women against themselves by limiting their freedom to determine
autonomously when and with whom they will engage in the sexual relations of their choice.
Put differently, they aim to safeguard and enhance the sexual autonomy of women, and not to
make choices for them.
Points to certain absurdities that he says would result from the Majority position:
Adopting the Crowns position would also require us to find that cohabiting partners across
Canada, including spouses, commit a sexual assault when either one of them, even with their
express prior consent, kisses or caresses the other while the latter is asleep. (74)
Mc Laughlin says not going to use de minimus and not going to allow in marriage; 1985 got
rid of cant rape spouse; parliament should clean up
Currier, Consent and Fraud s. 265 (3)
Ratio: not any misrepresentation has to be misrepresentation that changes nature and
quality of the act
Fraud sufficient to vitiate consent, in the context of STD transmission) has two branches
A dishonest act (either falsehoods or failure to disclose status)
A deprivation (denying the complainant knowledge which would have caused her to refuse
sexual relations that exposed her to a significant risk of serious bodily harm)
Facts: What kind of fraud vitiates consent?
Decision:
Reasons:
Mabior - about clarifying and interpreting this test
Ratio: good test, but need more guidance - here there is a realistic possibility of transmission
of HIV, a significant risk of serious bodily harm is established, and the deprivation element of
the Cuerrier test is met. (84)
63
64
65
CONSCIOUS
Accused was CONSCIOUS but NOT in control of actions
NOT CONSCIOUS
Accused was NOT CONSCIOUS (or impaired) and t/f NOT in control of actions
WHY?
This is a defence of simple involuntariness that negate the actus reus. Accused was conscious but action
cannot be fairly attributed to him.
Extreme Self-Induced Intoxication
Disease of Mind
Some cause other than self-induced intoxication or mental
disorder
Examples: physical twitch, spasm, accidental mvmt, physical compulsion by another (Larsonneur)
Daviault intoxication, intoxication akin to automatism
Considered mental disorder and will proceed under NCRMD provisions (s. 16)
Automatism proper (non-insane automatism)
Examples: physical blows (Bleta); sleepwalking (Parks), but unlikely after Stone/Luedecke; involuntary
intoxication (King); in very limited circumstances, psych blow (Rabey/ Stone)
Burden of proof: Crown must prove basic physical voluntariness beyond a reasonable doubt
Burden of proof: Accused must prove automatism on a balance of probabilities (REVERSE) (After Stone
presumption is that accused is NCRMD, not a/t)
is acquittal
If s. 16 is satisfied, the verdict will be NCRMD and the accused will be dealt with through that system (ie.
review board)
66
INTOXICATION
INTOXICATION (s. 33.1)
Summary
Negative defence (either no AR or MR)
Normal intoxication (No MR); Extreme Intoxication (No AR or MR) (like
automatism)
Results in acquittal if successful
Competing
Unjust to punish the morally innocent (no MR).
views on
However, dont want to concede to the person who gets drunk and
intoxication
commits a crime.
1. Is the
Argue for one or the other based on the circumstances involved.
offence
Classify it as either specific or general intent; then turn it over to the facts
specific
of the case.
intent or
general
General intent offence
intent?
MR is intending to apply physical force to your body. Nothing intended
2. Does this
involve Normal
or Extreme
Intoxication?
Rules of
Intoxication
Defence
beyond the physical act itself. Its a very simple mens rea. E.g. just
making body move
Assault, assault/bodily harm, assult/peace officer, B&E, crim
harassment, incest, indecent assault, manslaughter, mischief, sexual
assault, unlawful confinement, wilful obstruction/peace officer
Specific intent offences
MR involves some extra purpose that is a more complicated.
Look for: Language that requires planning or foresight, a specific type
of knowledge
Aiding and abetting, arson, assault/intent to resist arrest, assaulting
police officer, attempt at any offence, attempted murder, B&E,
murder, possession stolen prop, rec stolen prop, robbery, theft, sexual
exploitation, wilfully causing fire
67
S. 33.1 of the
CCC
68
Reasons: In general intent offences, there is a simple form of MR intent to move body. In
specific, it involves ulterior motive to an extra end or goal. The mental element for general
intent crimes is so minimal that normal intoxication can never be a defence. For specific intent
offences, MR is complicated enough that intoxication could interfere with MR. Here, robbery =
specific and assault = general therefore intoxication is no defence.
a distinction is to be drawn between intention as applied to acts done to achieve
an immediate end on the one hand and acts done with the specific an ulterior motive
and intention of furthering or achieving an illegal object on the other hand. (bottom of
page 850-51 in RBHS)
The former acts may be the purely physical products of momentary passion whereas
the latter involve the mental process of formulating a specific intent. (pp. 850-51 in
RBHS)
EXPLAINING RULE 2 DAVIAULT INTOXICATION IS A DEFENCE TO GENERAL INTENT
OFFENCES
R v Bernard 1988 SCC
Ratio: General and specific intent offence distinction does exist.
Facts: Sexual assault causing bodily harm.
Issues: Does the general and specific intent offence distinction exist? Is there a bar on using
extreme intoxication as a defence?
Decision: New trial ordered.
Reasons: Split 2/2. 1) The MR for getting that drunk and being reckless should be substituted
for MR of the offence. Therefore, shouldnt allow defence of extreme intoxication. 2) Wilson &
LHeureux-Dube Substituion is not right bc it matches the guilty the mind for getting drunk
with the guilty act for another. Drunkenness akin to automatism should be a defence for
general intent offences.
Precedent: Situation after this unclear bc 2 and 2. Law clarified in Daviault.
R v Daviault 1994 SCC
Ratio: Extreme intoxication is a defence to general intent offence. If the accused can prove on
a balance of probabilities that they were in such an extreme degree of intoxication that they
were in a state akin to automatism, then it can be considered as a defence (reverse BOP).
They must be incapable of having even the minimal intent required for a general intent
offence. Expert evidence will normally be required.
Facts: Accused charged with sexual assault of elderly women. Consumed 8 bottles of beer
and 40 of brandy. Blood alcohol was 0.4-0.6. Medical experts testified that at that level of
drunkenness he should be dead. If a person didnt die of this, it would lead someone to be in a
dissociative state.
Issues: Is extreme intoxication available as a defence?
Decision: Extreme intoxication is a defence for general intent offences.
Reasons: Substitution analysis from Bernard rejected. Burden of proof on the accused to
establish this intoxication akin to automatism on a balance of probabilities. Expert evidence
will normally be required.
Dissent: They would have allowed the substitute MR bc getting that drunk is so reckless.
Precedent: Defence is out there but rarely used.
EXPLAINING RULE 3 DAVIAULT INTOXICATION NOT A DEFENCE TO CERTAIN
GENERAL INTENT OFFENCES
Parliament was concerned with the effects of Daviault intoxication, esp on women and
children, and people being able to use extreme drunkenness as a defence, so they enacted
new legislation stating that for general intent offences, extreme intoxication is not a
69
MENTAL DISORDER
At the end of a trial, three things take place:
70
TEST of
NCRMD (s. 16
of CCC)
s. 16 of CCC
71
Reasons: Split court. Criminal law is making claims about MD for own purposes.
Cooper v The Queen 1980 SCC
Ratio: Definition of disease of mind is: any illness, disorder, or abnormal condition which
impairs the human mind and its functioning Excluded, however, are: self-induced states
caused by alcohol or drugs, as well as transitory mental states such as hysteria or
concussion. To appreciate means knowing what youre doing and also appreciating its
consequences.
Facts: Accused choked victim to death and claimed defence of insanity.
Reasons: Dickson -- Disease of mind is to be given a broad meaning (see above). Must ask if
accused, by reason of disease of the mind, was deprived not only of the mental capacity to
know what one is doing but also the mental capacity to foresee and measure the
consequences of the act. The word appreciate imports an additional requirement to mere
knowledge of the physical quality of the act. The requirement, unique to Canada, is that of
perception, and ability, to perceive the consequences, impact, and results of a physical act.
2. WHAT DOES IT MEAN TO APPRECIATE THE NATURE AND QUALITY OF ONES ACTS
OR OMISSIONS?
R v Abbey 1982 SCC
Ratio: Appreciate means appreciating what you are doing but also the consequences.
Appreciating the consequences does NOT include knowing the penal consequences (ie. that
you might be punished).
NOTE: Kjeldsen appropriate feelings not included
Facts: Accused charged with importing cocaine for purpose of trafficking. Suffered from
hypomania. He appreciated what he was doing, but had a delusion that if caught he couldnt
be punished. Crown appealed
Issues: Does appreciate mean knowing the penal consequences?
Decision: NO appreciation of penal consequences not included
Reasons: A delusion that renders accused incapable of appreciating the penal consequences
does not go to the MR of the offence and does not render him incapable of appreciating the
nature and quality of the act and therefore does not bring the insanity defence into effect.
3. WHAT DOES IT MEANT TO KNOW THAT AN ACT OR OMISSION IS WRONG?
Wrong could be:
Illegal and/or
72
Reasons: Lamer - It would be an impossible burden for the Crown. For mental disorder,
wrong concerned with whether the individual knew the act was immoral. If we are going to
say you are morally blameworthy, then need to know if people can appreciate if they know its
morally wrong bc of disease.
Dissent: Wilson Breach and not justified.
R v Oommen 1994 SCC
Ratio: The crux of the inquiry is whether the accused lacks the capacity to rationally decide
whether the act is right or wrong from a societal standpoint, and hence to make a rational
choice about whether to do it or not. If lacks that capacity, then defence of insanity applies.
Facts: Accused was in a paranoid psychosis. He knew the difference bw right and wrong but
came to believe that his roommate was part of conspiracy to kill him. He murdered her after
interpreting the buzzer as her signal to kill him.
Decision: Not guilty.
Reasons: Must possess at least capacity to know right and wrong but must also be able to
apply that knowledge in a rational way to your circumstances. Right and wrong is from
societys standpoint. Here, mental disorder deprived him of capacity to know his act was
wrong by standard of ordinary person.
R v Landry 1980 Que CA
Ratio: Knowing means that accused needs capacity to know that something s morally wrong
in the circumstances
Facts: Paranoid schizophrenia who thinks he is God kills his friend who he believes to be
Satan.
Decision: Not guilty
Reasons: Accused, by his God delusion, was rendered incapable of knowing the act was
morally wrong in the circumstances.
Determining whether an accused was incapableof knowing that it was wrong means asking
whether, owing to a disease of the mind, an accused was incapable of rationally evaluating whether
the act was wrong in either a legal sense or as a matter of societys moral views.
AUTOMATISM
AUTOMATISM
What is the
type of
defence?
Burden of Proof
Two forms of
automatism
recognized at
law:
73
Will it be
NCRMD or
automatism
proper?
Consequences
74
Facts: Accused assaulted woman with a rock after being informed they were just friends.
Accused argued he was in a state of automatism caused by the emotional blow.
Issues: Should there be a defence of insane or non-insane automatism?
Decision: Defence of non-insane automatism is not available to accused. Caused by disease
of mind therefore NCRMD
Reasons: Court split 4/3 on whether it was a disease of mind or automatism proper. Majority:
Action caused by a disease of the mind and therefore NCRMD. Where psychological blows are
the purported cause, a dissociative state cannot be from an ordinary stress and
disappointment of life. Automatism proper could only arise from a psych blow if it was an
extraordinary event that would cause a normal, average person to go into dissociative
state (e.g. seeing a loved one killed). Here, must be caused by factors internal to accused and
would have to be bc of a mental disorder.
Dissent: Dickson Medical evidence did not suggest a mental disorder. Should not be an
objective test. Must look at mind of accused. Best way to tell which it is is by looking at if
there is a continuing danger.
R v Parks 1992 SCC
Ratio: Defence of automatism proper is embraced. Can use either internal/external theory or
continuing danger theory to conclude that the proper defence is NCRMD and not automatism.
Normal criminal burdens still seem to apply.
Facts: Parks attacked parents-in-law while sleepwalking. Killed mother and seriously injured
father in law. Argued automatism proper.
Issues: Is sleepwalking included within the defence of automatism? Is it a disease of the
mind?
Decision: Acquitted. Automatism proper.
Reasons: Sleepwalking here was not a disease of the mind, but was automatism proper.
R v Stone 1999 SCC
Ratio: 1) Definition: Automatism is a state of impaired consciousness, rather than
unconsciousness, in which an individual, though capable of action, has no voluntary control
over that action. 2) The key question is voluntariness 3) Burden of proof: The accused must
convince the trier of fact of automatism on a balance of probabilities and, although this limits
the accuseds rights under s. 11(d), it is justified.
Will it be NCRMD or automatism proper?
Two-stage test:
1. The judge must assess whether a proper foundation for a defence of automatism has been
established.
2. If this evidentiary foundation has been laid, the judge must determine whether the
condition is one of mental disorder or non-mental disorder automatism.
When is it mental disorder and when is it automatism? 4 Principles
1. If the impaired consciousness resulting in involuntary conduct arises from a disease of the
mind, then the proper defence is mental disorder, not automatism.
2. Judges should start from the presumption that the condition the accused claims to have
suffered is a disease of the mind, and then decide whether the evidence takes the condition
out of the disease of the mind category. (Prof: this is a radical contraction of the defence)
3. A new, holistic approach should be taken by the trial judge in deciding whether it is a
disease of the mind. This holistic approach is informed by:
The internal cause factor
o If internal, then NCRMD
75
PROVOCATION
PROVOCATION (s. 232)
What type of
Affirmative defence
defence?
AR and MR are there but shouldnt be punished.
Only a defence to murder. It does not apply to any other crime.
Partial defence. If accepted, it reduces charge from murder to
manslaughter
76
Burden of Proof
s. 232 of CCC
Three
Elements of
Provocation
Relevance of
Culture
Rationale
Critiques
77
78
whether the ordinary person in that situation would lose self control.
Decision: Trial judge did not err.
Reasons: It was not clear the the judge didnt consider the Sikh cultural values, and even
taking that into account, the ordinary person would not in the circumstances have lost self
control.
R v Humaid Ont CA
Ratio: Role of culture in ordinary person standard.
Facts: Humaid killed wife after becoming concerned that she was having affair with colleague.
Claimed provocation. Defence raised his Islamic culture, which they characterised as male
dominated and concerned with family honour. Accordingly infidelity by woman was a serious
violation of family honour and worthy of punishment by male. Jury was not instructed to
consider cultural background in ordinary person.
Issues: Should jury have considered cultural background in ordinary person?
Decision: Trial judge did not err.
Reasons: No air of reality to provocation defence, but even if there were cultural background
would not be considered in ordinary person. Alleged beliefs which give the insult added gravity
are premised on the notion that women are inferior to men and that violence against women is
in some circumstances accepted, if not encouraged. These beliefs are antithetical to
fundamental Canadian values, including gender equality. It is arguable that as a matter of
criminal law policy, the "ordinary person" cannot be fixed with beliefs that are irreconcilable
with fundamental Canadian values.
[93] In this case, however, the appellant's religious and cultural beliefs are not the
target of the alleged insult. Rather, the appellant's religious and cultural beliefs are said
to render the words spoken by Aysar highly insulting. The difficult problem, as I see it, is
that the alleged beliefs which give the insult added gravity are premised on the notion
that women are inferior to men and that violence against women is in some
circumstances accepted, if not encouraged. These beliefs are antithetical to fundamental
Canadian values, including gender equality. It is arguable that as a matter of criminal law
policy, the "ordinary person" cannot be fixed with beliefs that are irreconcilable with
fundamental Canadian values. Criminal law may simply not accept that a belief system
which is contrary to those fundamental values should somehow provide the basis for a
partial defence to murder.
an individualized approach ignores the cardinal principle that criminal law is concerned with
setting standards of human behaviour. (Tran, para. 34)
79
It follows that the ordinary person standard must be informed by contemporary norms of
behaviour, including fundamental values such as the commitment to equality provided for in the
Canadian Charter of Rights and Freedoms. For example, it would be appropriate to ascribe to the
ordinary person relevant racial characteristics if the accused were the recipient of a racial slur,
but it would not be appropriate to ascribe to the ordinary person the characteristic of being
homophobic if the accused were the recipient of a homosexual advance. (para. 34)
Similarly, there can be no place in this objective standard for antiquated beliefs such as
adultery is the highest invasion of property or indeed for any form of killing based on such
inappropriate conceptualizations of honour. (para. 34)
R. v. Tran (2010 SCC 58)
The regulative function of the ordinary person standard:
Only behavior which comports with contemporary societys norms and values will attract
the laws compassion. (para. 30)
The ultimate test
Someone otherwise guilty of murder will have the offence reduced to manslaughter on the basis
of the defence of provocation if:
The accused was subject to a wrongful act or insult which could in light of the past history
of the relationship between the accused and the deceased, deprive an ordinary person of
the same age, and sex and sharing with the accused such other factors as would give the
act or insult in question a special significance, of the power of self-control,
The accused did, in fact, lose self-control in response to that act or insult, and
The accused did so on the sudden, without time for his passion to cool.
SELF DEFENCE
SELF DEFENCE (s. 34)
Affirmative defence
AR and MR are there but shouldnt be punished.
Classic case of justification.
Results in acquittal
At CL, you can respond proportionately to a threat to your safety and you have a defence of
self defence.
Burden of Proof Crown prove elements of offence beyond a reasonable doubt once an air of
reality is established.
s. 34 of CCC
34. (1) A person is not guilty of an offence if
(passed on Nov (a) they believe on reasonable grounds that force is being used against
22, 2012)
them or another person or that a threat of force is being made against them
or another person;
Subjective element
80
(b) the act that constitutes the offence is committed for the purpose of
defending or protecting themselves or the other person from that use or
threat of force; and
(c) the act committed is reasonable in the circumstances.
Basically, if you reasonably believe that the threat of force is
being applied to you, you can respond to that in a reasonable
fashion.
34(2) In determining whether the act committed is reasonable in the
circumstances, the court shall consider the relevant circumstances of the
person, the other parties and the act, including, but not limited to, the
following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there
were other means available to respond to the potential use of force;
(c) the persons role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the
incident;
(f) the nature, duration and history of any relationship between the parties to
the incident, including any prior use or threat of force and the nature of that
force or threat;
(f.1) any history of interaction or communication between the parties to the
incident;
(g) the nature and proportionality of the persons response to the use or
threat of force; and (h) whether the act committed was in response to a use
or threat of force that the person knew was lawful.
34(3) Subsection (1) does not apply if the force is used or threatened by
another person for the purpose of doing something that they are required or
authorized by law to do in the administration or enforcement of the law,
unless the person who commits the act that constitutes the offence believes
on reasonable grounds that the other person is acting unlawfully.
1. Does the accused believed (subjective) on reasonable grounds (objective)
that force or threat of force is being used against them or another
person? (34(1)(a))
2. Was the act committed for the purpose of defending or protecting the
accused or the other person from that use or threat of force? (34(1)(b))
3. Was the act committed reasonable in the circumstances? (34(1)(c))
a. 34(2) In determining whether the act committed is reasonable in
the circumstances, consider the relevant circumstances of the
person, the other parties and the act, including, but not limited to,
the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there
were other means available to respond to the potential use of force;
(c) the persons role in the incident;
81
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the
incident;
(f) the nature, duration and history of any relationship between the parties to
the incident, including any prior use or threat of force and the nature of that
force or threat;
(f.1) any history of interaction or communication between the parties to the
incident;
(g) the nature and proportionality of the persons response to the use or
threat of force; and
(h) whether the act committed was in response to a use or threat of force
that the person knew was lawful.
82
Here, it doesnt matter whether they were actually going to assault Cinous bc he believed on
reasonable grounds that there was a threat of assault. Must be no other means of protecting
yourself. Here, the court rule that he had other options available, including calling the police
and fleeing.
o KEY Q: Did the accused believe, in the situation, that he was about to be
assaulted?
o TEST: Objective/Subjective
Q1: Did the accused reasonably believe he was being
unlawfully assaulted?
Subjective: did accused believe that he was being unlawfully
assaulted?
Objective: if so, was accuseds belief reasonable?
Q2: Did the accused reasonably believe that he faced death
or grievous bodily harm from the attack?
Subjective: did accused believe that he faced death or
grievous bodily harm from the attack?
Objective: if so, was accuseds belief reasonable?
Q3: Did the accused reasonably believe that he could not
preserve himself except by shooting the victim (ie. that there
was no alternative course of action available)?
Subjective: did accused believe that he could not preserve
himself except by shooting the victim?
Objective: if so, was the accuseds belief reasonable? Failed
this one.
o Court: Cinous reasonably apprehended imminent assault.
o HOWEVER, 34(2)(b): Q: Are there other means of responding to the
potential use of force?
A: Before, you couldnt claim the defense if there were other means of
avoiding the force under new provisions, its just a consideration towards
the reasonableness of the view of needed self-defense.
HERE: Court: there were other options available.
Cinous had gone into the gas station, bought wiper fluid, put in
the wiper fluid, borrowed money from one of the guys, and
THEN shot someone in the back of the head.
Court: YOU COULDVE CALLED THE COPS, YA FOOL. You
couldve run!
Cinous: I dont trust the cops! I don't think theyre reliable or
fast enough, and that these guys would eventually find me and
kill me. I couldnt realistically get away!
Court: um, no.
Dissent: Binnie To concede with not calling the police and concede with reasonable criminal
rather than reasonable person is threatening for the public order. This would endorse a
sociopathic approach to dispute resolution. A reasonable person would have seen other
options available.
to allow him to kill in this situation is basically contrary to public order; we cant
give this much space to criminal organizations.
83
84
DURESS
DURESS (s. 17 and CL)
Summary
Affirmative defence
AR and MR are there but shouldnt be punished.
Excuse
Results in acquittal
Burden of Proof
Is the accused
the principal
offender?
Elements of CL
of Duress
85
86
Facts: Accused charged with offence and wanted to rely on duress but couldnt meet
requirements for immediacy and presence. Argues that he should be able to rely on either CL
or s. 17.
Decision: Guilty. No defence of duress available.
Reasons: Court rejects that and holds that s. 17 displaces the CL entirely.
Precedent: Carker has been largely marginalized and CL is now supreme.
Paquette v The Queen SCC 1976
Ratio: s. 17 is applicable to principal offenders only. Secondary offenders are dealt with under
CL where there are no excluded offences.
Facts: Robbery at pop shop in Ottawa and person killed. Paquette is driver of getaway car.
Claims duress bc forced to drive at gunpoint. Carker held that s. 17 is exhaustive and murder
is an excluded offence.
Issues: Is s. 17 applicable?
Reasons: Court reviews language of offence and say a person who commits is only
applicable to principals, not secondary offenders.
R v Mena
Ratio: Jury should be entitled to decide whether accused is a principal or a secondary
offender. If conclude that secondary, then decide if person has a defence of duress at common
law.
R. v. Ruzic (SCC, 2001)
Ratio: Immediacy and presence requirements of s. 17 are unconstitutional bc they allow the
conviction of the morally involuntary thereby breaching the PFJ. Section 7 requires defence of
duress to be available to an accused even when they were not under immediate threat and or
threat is to a third party.
Facts: Marianna Ruzic stalked and harassed by man in Belgrade who threatens to harm her
mother if she doesnt fly heroin to Toronto. She does and is charged. She pleads duress.
Problem: imminence and presence. It was a future threat and the person wasnt present during
the commission. She is under s. 17 bc she is a principal.
Issues: Do the imminence and presence requirements of s. 17 violate s. 7 bc allowing a
morally involuntary person to be convicted is contrary to the PFJ (BC Motor Vehicle).
Decision: Acquitted
Reasons: LeBel - A person acts in a morally involuntary fashion when, faced with perilous
circumstances, she is deprived of a realistic choice whether to break the law. (RBHS 919) Not
morally blameless here bc committed offence. New PFJ that you may not be punished if you
were morally involuntary. Immediacy and presence requirements of s. 17 raise the possibility
of convicting the morally involuntary t/f unconstl.
Once the elements of the offence have been established, the accused can no longer be
considered blameless. This Court has never taken the concept of blamelessness any further
than this initial finding of guilt. (RBHS 920)
Precedent: State of the law after is that the 22 excluded offences still remain along with the
CL defence of duress. Prof: likely if someone is charged with one of those offences and has a
good duress claim, they will challenge that restriction.
Hibbert v The Queen
Ratio: Confirms that duress does not negate mens rea but rather is a stand alone defence (an
excuse)
R v Ryan, 2013
Ratio:
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NECESSITY
necessitas legem non habet necessity knows no
law
NECESSITY
Summary
Burden of Proof
Legal
Requirements
for Necessity
(After Perka)
Such that normal human instincts cry out for action and make a counsel of patience
unreasonable.
Foreseeability is not enough it must be on the verge of transpiring and virtually certain
to occur. (Latimer)
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Exception
No rational criminal justice system, no matter how humane or liberal, could excuse the
infliction of a greater harm to allow the actor to avert a lesser evil. In such circumstances
we expect the individual to bear the harm and refrain from acting illegally. If he cannot
control himself we will not excuse him. (RBHS 886)
Fact that youre doing something illegal at the time does not disentitle
you from raising defence, unless you created the circumstances of
necessity. (E.g competing keg parties; fasting man who did B&E)
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didnt do right thing) but recognize that there was a frailty in human nature that led you to
break the law. Majority recognizes defence of necessity but classifies it only as an EXCUSE The defence of necessity rests on a realistic assessment of human weakness, recognizing that
a liberal and humane criminal law cannot hold people to the strict obedience of laws in
emergency situations where normal human instincts, whether of self preservation or of
altruism, overwhelmingly impel disobedience. (RBHS 885-886)
Dissent: Wilson J Necessity defence should sometimes be available as a justification. (e.g.
parent has to trespass to protect a child who is in danger) Conflicting legal duties exist, but
youre not a weak person for taking care of your child.
Precedent: First Canadian case that recognized existence of CL of necessity. Case wasnt
disposed of on necessity.
Latimer v The Queen
Ratio: Refines the criteria from Perka
Facts: Tracey Latimer suffered from severe form of cerebral palsy, subject to frequent
seizures. Anti-seizure meds prevented her from taking pain killers and she was also subject to
surgeries. Facing a surgery to remove her upper thigh bone. Latimer concludes that rather
than face final surgery, he should end her life. Puts her into cab of truck and kills her. Tells
police and charged with first degree murder. At first trial, convicted of second degree murder
by jury. New trial ordered bc Crown tampered with jury pool. Second trial tried for second
degree murder. Defence argued necessity. Trial judge decided not to put defence to jury bc
said no air of reality. Jury asks if they convict him, if they can have input into sentencing. Judge
tells them not to concern themselves with punishment. But may be some input into
sentencing. If parole ineligibility should exceed 10 years. So jury comes back and finds him
guilty and then judge says min is life in prison. Jury upset and says parole eligibility should be
1 year, even though min is 10-25. Judge uses Charter to do a constitutional exemption (no
longer exists). SCC concludes there is no exemption to mandatory minimum.
Decision: Guilty. Defence of necessary is not available.
Reasons: No proportionality infliction of death for ease of pain.
Precedent: Some indications that murder may never be met under defence of necessity.
R v Kerr
Facts: Kerr is in prison and told he is going to be attacked by other prisoner. Defends himself
with a knife that he had. Charged with possession of weapon from dangerous purpose. Argues
that in prison env where Corrections Canada fails to protect prisoners from violence that he
had to fashion a weapon. Argument about how necessity defence relates to marginalisation
and ability of state to protect.
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