Burden of Proof
The crown has the persuasive burden in a
criminal trial, which is reinforced by
s11(d) of the Charter. In Oakes a reverse
onus provision that if found in possession
of drugs an accused must prove no intent
to traffic offended s11(d).
Actus Reus
The actus reus of an offence requires and
act or omission, physical voluntariness,
and causation.
Omissions At CL, offences resulting
from omissions focused on whether or
not the court implied a legal duty. This
often had a moralizing tone. In Instan
the court finds that a niece has a duty to
aid her aunt because she lived and was
supported by her aunt. In Beardsley the
court found that he had no duty to aid a
woman who was not his wife. As there
are no longer CL offences in Canada
(CCC s9), duties and omissions have
been codified. S215 creates a duty to
provide the necessities to children,
spouse, and dependants. S220 and s221
are the provisions for criminal
negligence causing death and bodily
harm. In Urbanovich, under s220, the
mother of a child who was killed by the
abusive father was guilt for failing to
act. In Thorton, the court uses s180,
common nuisance, to create a legal duty
to criminalize donation of HIV+ blood.
Voluntariness The criminal law
assumes people operate in a state of
consciousness. Causation The crown
must prove both factual and legal
causation. Current standard for factual
causation is “a substantial cause”
(Nette), which is a rewording of the
previous standard of “beyond the de
minimis” (Smithers). First-degree
murder requires the higher standard of a
significant contributing cause
(Harbottle). Legal causation is covered
in CCC ss 222(5),(6), 224, 225, 226,
228. An act does not sever legal
causation if its general nature and risk of
harm were reasonably foreseeable
(Maybin). The victim refusing medical
treatment for religious reasons also does
not sever causation (Blaue).
Mens Rea
Absolute vs. Strict Liability The three
categories of mens rea are established in
Sault Ste Marie: absolute liability, strict
liability, full mens rea. True crimes are
prima facie full mens rea and public
welfare offences are prima facie strict
liability. Willfully, with intent,
knowingly and intentionally all imply
full mens rea. Cause or permit imply
strict liability. Risk of imprisonment
with absolute liability violates s7 of the
Charter (Re Motor Vehicles). The
defense of due diligence also must
actually be available for an offence to be
strict not absolute liability (Raham). The
reverse onus of due diligence does not
violate the Charter for regulatory
offences so long as additional
requirements are not added (Wholesale
Travel). Negligence Martineau factors
for determining mens rea: stigma
attached to the offence, punishment
proportionate to moral blameworthiness, proprietary right (Watson).
intentional harm should have more
Intoxication
severe punishment. Unlawful act and
In Daviault, the defense of extreme
neglect manslaughter are both upheld
intoxication is established for general
constitutionally under this (Creighton). intent offences, requiring the accused to
Willful blindness has also been upheld prove on the balance of probabilities that
under the Charter for mens rea offences there as intoxication akin to automatism.
(Briscoe). Intention Additional mens rea Expert evidence will be required. Under
requirements are determined by
the previous rule from Leary, intoxication
interpreting the code using the Dreiger
was only available for specific intent
approach (ADH). There is a presumption offences, which sexual assault is not. In
of subjective fault for criminal code
response parliament enacted s33.1 stating
offences, which words such as willfully that self-induced intoxication is not a
add to (ADH). Because of the stigma
defense to general intent offences where
associated with it, murder always
the bodily integrity of another person is
requires subjective mens rea including
threatened or interfered with. The ONSC
for parties (Vaillancourt).
has found s33.1 unconstitutional
(Flemming), but it has been upheld in
Attempts
S 24 provides the offence for attempting some jurisdictions (SN, NUCJ). Here it
any other crime with sentencing found in was upheld under s1 as allowing the
s463. S. 239, attempted murder has its
defense would discourage victims of
own offence. An attempt must go beyond spousal abuse linked to alcohol from
mere preparation, which is a question of reporting and also decrease likelihood of
law. Knocking on a door with a gun is not police investigation.
attempted robbery, in the absence of
Incapacity and Children
evidence of intent (Sorrell).
CCC only applies to 18+ and YCJA
applies to 12+. Presumption that youth
Parties
S21 states that aiding or abetting makes who commit certain offences are
someone a party to an offence. Parties
functioning as adults was found to be
are responsible for each other’s acts
unconstitutional (DB).
(Maybin). S 21(1)(b) requires the act or Mental Disorder
omission was for the purpose of aiding. S16 codifies the CL on mental disorder:
S 21(1)(c) requires proof that the
requires that an accused who suffers from
accused intended to encourage (Curran). a disease of the mind be incapable of
In order to be a party to murder the
appreciating the nature and quality of the
accused must have subjective mens rea – act or knowing that the act is wrong
foresee the risk of death (Vaillancourt), (McNaughton). There is a statutory
but only objective mens rea is required presumption of sanity in s16(2). Now
for manslaughter – only foresee risk of finding of NCR. Successful: Oommen –
bodily harm (Jackson). Counseling S22 paranoid psychosis, believes victim
makes anyone who counsels a person to conspired to kill him; Swain –
be a party to an offence also a party to
schizophrenia, believes he is fighting with
that offence unless the offence was
spirits but hits wife; Abby – believes he is
committed in a different way than
a god and no laws apply. Cooper
counseled. S22(3) counseling includes to excludes self-induced states from s16
procure, solicit or incite. Conspiracy is application. Winko looks at review board
an agreement by two of more people to process. Must have an annual review, and
commit a criminal offence s465. It is not the board must prove real risk with no
necessary that there be any proof of an
burden on the accused.
act to complete the crime. Used on G20 Automatism
protest organizers.
There are two forms of the defense: sane
automatism (acquittal), mental disorder
Mistake of Law
S19 of the CCC states that ignorance of automatism (s16 NCR). Sane automatism
the law is not a defense. This does not
requires and external cause and was first
affect mistake of fact. Officially induced used in Bleta for a stabbing directly
error is a defense (MacLean – inquired to following a concussion. An ordinary
registrar of motor vehicles) Advise must psychological blow cannot give rise sane
be from an appropriate official
automatism only MD (Rabey). Sane
(Jorgensen). Reliance on lower court
automatism requires the accused not be a
decisions, later overturned, is not
continuing danger (Parks). Current
accepted as mistake of law (Campbell). default is that automatism is caused by
MD, then look for internal cause and
Colour of Right
S429(2) no person shall be convicted of continuing danger, other policy (Stone).
430-446 where they acted with legal
Evidence must be initially presented to a
justification or colour of right. Depends judge in a voir dire, who decides if a
on accused subjective honest belief
properly instructed jury could find the
(Stevenson), and statements that the
defense, and then it goes to the jury.
accused has a Western understanding of Luedecke characterized sexsomnia from
property. Has been accepted for a belief sleepwalking as NCR rather than sane
that Indigenous groups never surrendered automatism using internal cause.
their land rights (Ashini). To use the
Provocation
defense you must have a legal claim,
Provocation is found in s232 of CCC and
making it unavailable to allies
is a partial defense, which reduces murder
(Drainville). Believing Canadian law
to manslaughter. Provocation requires an
does not apply is a mistake of law not a objective wrongful act or insult, that the
accused was subjectively provoked, and allowed.
Inchoate Crimes
that the accused acted suddenly before
R v St Onge Lamoureax – s258(1)(g)
R v Sorrell – Attempted robbery charge
passions could cool. In the objective
presume that breathalyzers accurate to
acquitted. Wearing masks and had guns,
analysis the jury should consider external remove Carter. Must have exptert show it shake door then leave.
events putting pressure on the accused by didn’t and that caused the reading of over R v. Lucas – Breaking glass door
not particular idiosyncrasies (Hill – gay .08. Upheld under s1.
sufficient for attempted robbery.
panic). However certain characteristics of Actus Reus
Assault Defences
an accused will be considered if they
R v Instan – Lets aunt die of gangrene
R v Jobidon – Consensual evenly
relate specifically to the provocation
without helping in anyway or telling
matched bar fight. Cannot consent to
(Hill). In Thibert, he pulled a gun on ex- anyone. Violated legal duty.
serious bodily harm.
wife’s lover and comments made by the People v Beardsley – Man drinks with
R v Paice – Serious harm must be
lover there after were found to be
mistress. She takes morphine. He doesn’t indented and caused to vitiate consent.
sufficient that provocation should be left help. No legal duty to woman who is not R v McDonald – Fight over victim going
to the jury. Anger alone is not sufficient wife.
to front of Subway line. Consent should
to allow the defense (Parent).
R v Urbanovich – Co-accused with
be left to jury when serious harm not
Provocation cannot be raised when the
husband. He abuses infant. She also
indented.
insult is discovered as a result of breaking convicted for failing to intervene.
R v Currier -  HIV+ told by nurse to use
into ex-wife’s home (Tran).
R v Thorton – Knowingly donates HIV condoms. Doesn’t and lies. Nonpositive blood. Creation on new legal
Self-Defense
disclosure plus risk of serious bodily
Self-defense requires that an accused
duty to fit it into s180 common nuisance. harm is fraud, vitiating consent.
believes on reasonable grounds violence R v. Blaue – Treatable stab wounds but R v Williams – No conviction because
is going to be used against them, the act Johovah’s witness turns down blood and couldn’t prove the woman was HIVwas for the purpose of defending or
dies. Doesn’t sever causation.
before encounter.
protecting, and the act was reasonable in R v Smithers -  kicks Coby. Aspirates R v Mabior –  has (unprotected) sex
the circumstances. CCC s34 is new.
from throwing up and dies of faulty
with women without disclosing HIV+.
Cases all use old law. Rather than strict epiglottis. Causation found.
Not fraud if treatment and condoms,
requirements s34(2) lays out several
R v Nette – Someone else hog-ties 95 year which gives 3 of 9 convictions.
factors for assessing reasonableness.
old woman in B&E, dies.  liable too. No R v Ewanchuk – 17 year-old lured into
Expert evidence can be relevant to the
higher standard for second degree
van at job interview.  grinds against her
accused’s reasonable apprehension of
murder.
after she says no. No implied consent for
violence, which has allowed abused
R v Maybin – Brothers beat victim
sexual assault.
women to use self-defense (Lavellee).
unconscious in bar fight. Bouncer steps in R v Leclerc – Hockey setting. Vicious
Instructional violence in prison also
and hits him too. Dies. Not an intervening cross check to back of neck. Implied
allowed for relaxing of the previous
act.
consent for contact necessary for contact
immediacy requirements (McConnell). Mens Rea
incidental to the game.
Duress
R v Sault Ste Marie – City privatizes
R v Faith – Hockey fight,  hits victim on
Duress is codified in CCC s17, but must garbage removal. Results in hazardous
right side of face wearing glove causing
of the CL on duress is still used today.
erection of garbage near stream. Creation jaw fracture. Victim had taken ’s stick
S17 has been only found to apply to
of strict liability. City guilty.
which was invitation for consensual fight.
committers, parties may use the CL
Re BC Motor Vehicles Act – Driving
R v Ogg-Moss – Hits developmentally
defense, which removes the list of
without valid license statutory absolute handicapped adult charge with large
excluded offences (Pacquette). The
liability offence with potential prison
metal spoon 5 times on forehead. Not
immediacy and presence requirements in violates s7.
protected by s43 because adult.
s17 have be struck down as
R v Raham – Stunt driving = 50km over R v Duperon – Strapped 13 yo
unconstitutional (Ruzic). Threats to 3rd
speed limit. Due diligence is actually
emotionally disturbed son on bare but 10
parties are also open to CL duress
available allowing SL and jail.
times with leather belt. To severe for s43
(Langois). CL duress requires implicit or R v Wholesale Travel – Advertised
protection.
explicit threat of serious injury, a close “wholesale” prices, which were more
CFCYL v Canada (AG) – s43 does not
temporal connection giving no safe
than that would be. False advertising
violate that Charter.
avenue of escape, and proportionality of charge. SL and due diligence are
R v Lepage – Christmas tree salesman
offence committed compared to the
constitutional for regulatory offences.
pushes fire inspector trying to close his
threats made. The use of CL defense still R v Creighton – Injects cocaine
business. De minimis.
requires that the offense is not one
(trafficking), convicted of unlawful act R v Matsuba – Teacher touches leg of
excluded by s17 and that the accused was manslaughter. Only needs foreseeable
grade 9 girl, shave test. De minimis.
not a part of a conspiracy (Ryan).
bodily harm.
Consequence of conviction too severe.
Necessity
R v Briscoe –  drove car to take girl to R v Stewart – Pushes CL wife. No de
Necessity is a CL defense, which is
golf course knowing Laboucan wanted to minimis in the context of history of
permitted by s8(3). An accused must
kill.  witnesses rape but doesn’t assault intimate violence.
show a situation of imminent peril and
girl. By not asking he was willfully blind Mistake of Fact
that compliance with the law is
and guilty.
R v Pappajohn – Lunch with alcohol,
demonstrably impossible (Morgantaler). R v ADH –  didn’t know she was
then to ’s house. Victim running into
The leading case on the defense is Perka, pregnant. Gives birth early in Walmart street naked wearing bow tie and hands
where it was allowed for a group of drug bathroom. Believing child stillborn leaves bound house later. Mistake of fact for
smugglers who stopped in Canada due to it. Child abandonment must have
consent doesn’t need to be reasonable.
a serious storm at sea.
subjective MR.
Convicted because court doesn’t believe
Cases
R v Vaillancourt – Robbery,  wants to honest mistake.
Burden of Proof
use knives not guns. Accomplice brings R v Sansregret -  disconnects phone,
R v Oakes – Found with 8 vials of hashish
gun.  asks for bullets and keeps in glove. threatens and ties up victim. She tries to
oil and $619.45 cash. Possession cannot
Gun kills. Subjective MR required for
convince him she will stay, sex. No
give presumption of trafficking s11(d).
murder.
mistake because had happened before and
R v Woolmighton – CL England.  shoots Corporate Homicide
 was told it was wrong.
wife, claims accident. Crown must still R v Curragh Inc – 26 men die in a mine.
R v Seaboyer – Striking down of some
prove murder. Presumption of innocence No convictions because of problems with
rape shield laws. No cross-examination
is golden thread.
corporations and MR.
on victim sexual history could prevent
M’Naughten – Presumption of sanity is
full defense.
R v McNaughton – Shoots secretary for Victim threatens ’s son, she shoots him
PM due to delusions about the Tories. CL in his sleep. Self-defense should not have
R v. O’Connor –  wants residential
insanity available if incapable of
school records in sexual assault case.
been left to the jury.
appreciating quality of act or knowing it R v Lavallee – Domestic abuse. He hands
Crown refuses, judge forces them to
is wrong.
hand them over.
her a gun and says if you don’t shoot me I
R v. Carosela – counseling centres shred R v Oommen – Kills sleeping friend in
will kill you. Allows expert evidence and
records before sexual assaults go to trial apartment believing he conspired with
self-defense for battered wife syndrome.
local union to kill him and was
so they can’t be forced to disclose
R v McConnell – Prison. He beefed up
surrounded.
Believes
elf-defense,
intimate details about victim.
putting magazines and clipboard under
paranoid psychosis.
his clothing in anticipation of an attack.
R v JA –  chokes intimate partner to
unconsciousness, wakes anally penetrated R v Swain – Hits his wife believing he is Violence of institutional structure allows
fighting spirits. Schizophrenia. Doesn’t SD.
with dildo and hands bound. Cannot
even see wife.
R v NC – Friend being beaten by cops.
consent while unconscious and no
R
v
Abby
–
Believes
he
is
God
and
the
Uses school bus to rescue, didn’t injure
advanced consent allowed.
law
doesn’t
apply
to
him.
Brings
drugs
police. Self-defense allowed.
Mistake of Law
R v George – Drives car at police in
R v Docherty – s666 “willfully” violates across the boarder. Knows the law but
defense of another. Not successful. Seen
probation order. Here sitting in care while still MD.
R v Cooper – Psychiatric outpatient kisses as opportunistic use of NC
drunk. Care and control offence
girl at dance then strangles her. MD is
Duress
conviction but not s666 because not
legal
not
expert
determination
and
does
R v Parker – Prison. Violence threatened
knowing it was a crime is not “willful.”
not
include
self-induced
or
transient
R v Jorgensen – s163 knowingly sells
later if  doesn’t participate in riot.
obscene material. Relied on Ontario Film states.
Duress denied based on narrow s17 and
Wikno v BC – Review board disposition. no immediate threat
Board Ratings, could form officially
Board must prove real risk and annual
induced error but instead find no MR
R v Steane – Post war. Produced Nazi
review required.
because “knowingly”
propaganda because they threatened his
Automatism
R v Campbell – Chez Pierre’s naked
family.
dancing. Trial level decision had said ok. R v Bleta – Fight.  bumps head, seems R v Gardiner – Sale of handgun to
Later overruled. Conviction. No officially to pass out, concussion. Gets up and
undercover cop, entrapped by informant.
induced error.
fatally stabs the other guy.  has glazed No duress for criminals who voluntarily
Colour of Right
eyes and jerky movements. Establishes put themselves in dangerous situations.
R v Stevenson – Peguis Chief burns down sane automatism.
R v Robins – Had been informing on
unsafe bridge on reserve, after
R v Rabey – Finds a note saying girl isn’t husband. Cops send her back. Warns
government fails to act for years. Judge interested in him. Takes rock from geo father of girl before kidnapping. Still
finds no honest belief.
lab and beats her with it. Only MD auto found no immediacy of threats and party
Innu versus NATO – Occupation of
available as ordinary stresses cannot give to kidnapping.
runway to protest low flying planes. Goes rise to sane auto.
R v Pacquette – Gun to head to be a
to what is land. Colour of right available. R v Quick – Insulin related hypoglycemia. driver for robbery, which is excluded on
R v Drainville – Priest participates in
Medical condition but error was in
s17. S17 doesn’t apply to parties, only
three-minute roadblock. Colour of right injection, which is external. Sane
committers.
only applies to the group, which can
automatism.
R v Mena – Tries to undercut robbers’
make the claim, not their allies.
R v Parks – Sleeping walking, drives
plans in little ways.
R v Ashini – Goose Bay occupation.
across town and stabs in laws whom he R v Hebert – Outrageous lies to try to
Honestly held belief that their ancestors had a good relationship with. Family and show judge something was up but gang
never gave away their right to the land
personal history of sleep walking. Sane members in court threatening him. Finds
accepted. Reversed on other grounds.
automatism.
no intent to purger.
R v Watson – Greenpeace fishing vessel R v Stone – Claims wife yelled at him
R v Langois – Prison guard smuggles in
outside of 200 mile zone toss butyric acid triggering dissociation and stabs her 47 drugs because of threats to wife and kids.
onto other ship. Claims CoR for Canadian times. No one believes him automatism Found morally innocent. Early Charter
law no longer applying. Fails as is found claim. Trigger and victim should be
s17 challenge.
to be a mistake of law.
different.
R v Ruzic – Imports heroin from Serbia to
Intoxication
R v Fontaine – Knows hit man out for
Canada due to threats to mother in Serbia.
R v Beard – 1920 rape and murder of 13 him. Shoots someone who comes into
Find police there corrupt and would be no
yo. Difference between general and
garage claiming he believed him to be hit help. Return to most CL duress over s17.
specific intent for intoxication.
man. Evidence for automatism must only R v Ryan –  orders hit on abusive
R v Leary – Intoxication is not a defense have air of reality to go to jury.
husband from undercover cop. Not duress
to rape, which is general intent. MR to get Provocation
but charges stayed.
drunk can substitute.
R v Hill – Homosexual advances by
Necessity
R v Bernard – Charter now. Majority still victim, 16 yo  pleads provocation and R v Morgentaler – Provided abortions for
keep rule from Leary, but Wilson
self-defense. Found provocation should depressed pregnant woman at risk of
presents drunk to point of automatism.
have been left to jury.
suicide if forced to carry baby to term.
R v Daviault – Seasoned alcoholic rapes a R v Thibert – Shoots ex-wife lover in
Jury acquits. Appeals say not necessity.
woman who is confined to a wheel chair parking lot. Victim taunts and tries to use He is too separate from the harm.
after heavy drinking. Defense of
R v Perka – Drug dealers on a boat, big
wife as shield after  pulls a gun.
automatism intoxication accepted for
Provocation should have been left to jury. storm. Come to shore with drugs. Found
acquittal.
to be a pressing situation.
R v Parent – Shoots estranged wife at
R v Flemming – Sexual assault finds
R v Langdon – Innu protest over low
meeting where she tried to buy his
s33.1 violates Charter for Ontario
flying planes. Charged with not leaving
company shares as a part of divorce
R v SN – Sexual assault by one man
embassy. Found legal necessity as all
proceedings. No defense of anger.
against another in the drunk tank, which R v Tran –  enters ex-wife’s locked
other methods except protest had been
neither remembers. S33.1 upheld in NU. apartment uninvited. Finds her with lover. tried.
Incapacity and Mental Disorder
R v Latimer – Euthanizes severely
No provocation allowed. Cannot be
R v DB – Indigenous youth in foster care surprised while breaking in.
disabled daughter. Find he had many
with FAS. Presumption that young
other options.
Self – Defense
offenders are adults for certain crimes
R v Whynot – Extreme domestic violence.
violates Charter.