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Burden of Proof ________________________________________________________ 4 
1. Legal/Persuasive Burden of Proof ___________________________________________ 4 
2. Evidential Burden ________________________________________________________ 4 
3. Section 11(d) violation _____________________________________________________ 4 
4. Section 1 ________________________________________________________________ 5 
Actus Reus ____________________________________________________________ 5 
A. Act or Omission __________________________________________________________ 6 
R. v. Instan______________________________________________________________________ 6 
People v. Beardsley _______________________________________________________________ 6 
R. v. Thornton ___________________________________________________________________ 7 
R. v. Urbanovich _________________________________________________________________ 7 
R. v. Ssenyonga __________________________________________________________________ 7 
B. Voluntariness ____________________________________________________________ 8 
C. Causation _______________________________________________________________ 8 
R. v. Smithers____________________________________________________________________ 8 
R. v. Duncan ____________________________________________________________________ 9 
R. v. Johnston____________________________________________________________________ 9 
R. v. Nette ______________________________________________________________________ 9 
R. v. Blaue ______________________________________________________________________ 9 
R. v. Cribbin_____________________________________________________________________ 9 
R. v. Harbottle __________________________________________________________________ 10 
Mens Rea ____________________________________________________________ 10 
Absolute Liability__________________________________________________________ 11 
Sault. St. Marie _________________________________________________________________ 11 
Reference Re: Section 94(2) of the Motor Vehicle Act ___________________________________ 12 
Strict Liability_________________________________________________________ 12 
R. v. Wholesale Travel Group ______________________________________________________ 12 
Negligence ________________________________________________________________ 13 
R. v. Creighton [1993] SCC – p.80 __________________________________________________ 13 
R. v. Browne (1997)______________________________________________________________ 14 
R. v. Naglik ____________________________________________________________________ 14 
R. v. Hundal____________________________________________________________________ 14 
Willful Blindness __________________________________________________________ 14 
Recklessness ______________________________________________________________ 14 
Intention _________________________________________________________________ 15 
Third-Party Liability _____________________________________________________________ 15 
R. v. Vaillancourt________________________________________________________________ 16 
Corporate Homicide____________________________________________________ 16 
Criminal Prosecution of Corporations for Defective Products (Vandall) _____________________ 16 
Criminal Liability of Organizations__________________________________________________ 17 
Corporate Homicide______________________________________________________________ 19 
Consent______________________________________________________________ 19 
General Assault ___________________________________________________________ 20 
 
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1. Fights _______________________________________________________________________ 20 
2. Sports Context and Implied Consent _______________________________________________ 21 
Sexual Assault_____________________________________________________________ 22 
R. v. Ceurrier ___________________________________________________________________ 23 
R. v. Williams [2003]_____________________________________________________________ 23 
Correction____________________________________________________________ 24 
Elements _________________________________________________________________ 24 
Does the accused fall w/in s. 43? ____________________________________________________ 24 
Does the victim fall w/in s. 43? _____________________________________________________ 24 
Was the force corrective?__________________________________________________________ 24 
Was the force reasonable? _________________________________________________________ 25 
Cases ____________________________________________________________________ 25 
R. v. Ogg-Moss _________________________________________________________________ 25 
R. v. Dupperon__________________________________________________________________ 26 
DeMinimus___________________________________________________________ 26 
Offences to which it does not apply ___________________________________________ 27 
Test _____________________________________________________________________ 27 
Cases ____________________________________________________________________ 27 
R. v. Lepage____________________________________________________________________ 27 
R. v. Matsuba___________________________________________________________________ 27 
R. v. Stewart____________________________________________________________________ 27 
Mistake of Fact________________________________________________________ 28 
1. Air of Reality? ________________________________________________________________ 28 
2. Statutory Limitations (objective riders) _____________________________________________ 29 
3. Evidence of Past Sexual History __________________________________________________ 29 
Mistake of Law________________________________________________________ 31 
General Principle: Mistake of Law is No Defence _______________________________ 31 
Applications of General Principles __________________________________________________ 31 
Exceptions to the General Principle ___________________________________________ 32 
1. Mistake going to Mens Rea Element of the Offence ___________________________________ 32 
2. Officially Induced Error: ________________________________________________________ 32 
3. Impossibility _________________________________________________________________ 32 
4. Police Officers and s. 25(2) ______________________________________________________ 33 
Color of Right_________________________________________________________ 33 
Section 492(2) __________________________________________________________________ 34 
Section 41(1) ___________________________________________________________________ 35 
Incapacity ____________________________________________________________ 35 
A. Age ___________________________________________________________________ 35 
B. Fitness to Stand Trial ____________________________________________________ 36 
C. NCRMD _______________________________________________________________ 37 
Test __________________________________________________________________________ 37 
Burden of Proof _________________________________________________________________ 37 
Results ________________________________________________________________________ 37 
Intoxication __________________________________________________________ 38 
 
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Intoxication Generally ____________________________________________________________ 39 
Intoxication (Partial Defence) ________________________________________________ 39 
Extreme Intoxication _______________________________________________________ 39 
Charter Challenges to s. 33.1 _______________________________________________________ 40 
Automatism___________________________________________________________ 40 
General Test Applicable to all Cases Involving Automatism (Stone).________________ 40 
Step 1: Establish a Proper Foundation for a defence of Automatism_________________________ 40 
Step 2: Determining Whether to Leave MD or Non-MD Automatism with the Trier of Fact______ 41 
Possible Outcomes: ______________________________________________________________ 42 
Provocation___________________________________________________________ 43 
Provocation Test (Hill)______________________________________________________ 43 
Charter Issues?____________________________________________________________ 44 
Femicide_______________________________________________________________________ 44 
Homosexual advances ____________________________________________________________ 45 
Residual defence of rage ____________________________________________________ 45 
R. v. Parent [2001] SCC __________________________________________________________ 46 
Trial Process__________________________________________________________ 46 
Rights of the Accused Implicated by the Trial Process ___________________________ 46 
The Order of a Trial _______________________________________________________ 47 
Self Defence __________________________________________________________ 50 
UNPROVOKED ASSAULT – s. 34(1)_______________________________________________ 51 
PROVOKED – s.35 ______________________________________________________________ 51 
THIRD PARTY – s.37____________________________________________________________ 52 
PEACE OFFICERS – s.25_________________________________________________________ 52 
UNPROVOKED ASSAULT CAUSING DEATH OR GBH – s.34 (2) ______________________ 52 
WIFE BATTERING AND SELF-DEFENCE __________________________________________ 53 
Duress_______________________________________________________________ 55 
1. Does the accused fall under the CL defence of s. 17? ___________________________ 55 
2. Section 17 ______________________________________________________________ 55 
2. CL Defence___________________________________________________________ 56 
Necessity _____________________________________________________________ 59 
TEST (R. v. Perka)_________________________________________________________ 59 
(1) Did there exist an urgent situation of clear and imminent peril? _________________________ 59 
(2) Was compliance with the law demonstrably impossible? ______________________________ 60 
(3) Was there proportionality between the harm inflicted and the harm avoided? ______________ 61 
Broadening the Defences________________________________________________ 61 
Entrapment___________________________________________________________ 62 
1. Was there entrapment?__________________________________________________________ 63 
2. Should there be a stay of proceedings? _____________________________________________ 64 
3. Was there an informer involved? __________________________________________________ 64 
 
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Burden of Proof 
1. Legal/Persuasive Burden of Proof 
• QOF 
• Usually on Crown to prove BEYOND A REASONABLE DOUBT 
• This burden is constitutionalized under s. 11(d) “presumption of innocence” 
ÆIn order for defence to exculpate themselves they must only raise a reasonable 
doubt as to their guilt. 
• Jury must be charged as to what constitutes “beyond a reasonable doubt” and 
examples must be given(Lifchus ÆQOL) 
 
2. Evidential Burden 
• QOL 
• Requires that a party who wishes to rely upon a legal rule or defense to introduce 
sufficient evidence to support the proposed argument 
• SUFFICENT EVIDENCE=enough evidence to put the evidence at issue 
• Possible to have a violation of s. 11(d) if the evidentiary burden is coupled with a 
mandatory presumption of guilt (v. permissive) Æ Boyle 
 
3. Section 11(d) violation 
• REVERSE ONUS Æwhere the burden is placed on the accused on the BOP= 
Prima Facie violation (except in the regulatory context: Richards) 
• Re’d for s. 11(d) 
1. Accused must be proven guilty beyond a reasonable doubt 
2. State must bear the burden 
3. Criminal prosecutions must be carried out in accordance with lawful procedures 
and fairness. 
• Persuasive (or legal) burdens are more likely to attract constitutional arguments 
for violating s.11 than evidentiary burdens are 
Æ But evidentiary burdens are not immune from judicial scrutiny (if paired with 
mandatory presumption of guilt Æ Boyle and Downey) 
 
CASES 
• BoyleÆ  It was held that s.354(2) of Code offended s.11(d) of Charter because the 
section was said to require conviction if an accused failed to introduce evidence 
suggesting no knowledge of the fact that a vehicle was obtained by criminal means 
(EVIDENTIARY BURDEN + MAND. PRESUMP OF GUILT=VIOLATION) 
• R. v. Whyte, SCCÆ Whyte was charged with driving under the influence.  s.237(1)(a) 
of the C.C. violated s.11(d) of the Charter because if you are in driver seat 
intoxicated- it is assumed you will drive.  The court held that   s.237(1)(a) violated 
s.11(d), but saved under s.1- b/c hard to prove drinking with intent to drive * 
protection of soc important*  
 
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• R. v. Holmes, SCCÆ Members of the court disagreed with respect to the proper 
interpretation of the meaning of the burden of proof in s. 309(1) of the C.C, which 
states that if, “without lawful excuse, the proof of which lies upon him”, a person is 
found in possession of instruments suitable for house braking in circumstances giving 
rise to a reasonable interference of intention to housebreak, then that person is guilty 
of the offence.  It was held that  s.309(1) violated s.11(d) of the Charter 
• R. v. Chaulk, SCCÆ Court ruled that s.11(d) of the C.C violated b of s.16(4)  of the 
Charter (reverse Onus) by requiring that an accused prove alleged mental disorder on 
a balance of probabilities.  The court held that such a provision offends the Charter 
by presuming a factor required for guilt-sanity, but went on to rule that it can be 
justified under s.1 (see also Stone and Daviault) 
• R.v. Richard Æ  The court held that s.11(d) was not offended when, in the regulatory 
context where imprisonment is not an available punishment, an offender is presumed 
to have waived s.11(d) rights by failing to respond to a procedural scheme, such as 
the NB act, in which adequate safe guards are in place  (REGULATORY 
CONTEXT=NO VIOLATION) 
 
4. Section 1 
• OAKES TEST 
1. Pressing and Substantial Objective 
2. Proportionality 
i. 
Rational Connection 
ii. 
Minimal Impariment [Note: Most cases that fail, fail at this stage]  
iii. 
Deleterious Effects 
 
• Downey v. R, SCCÆ  Where the shifting of the evidential burden to the accused 
regarding the “pimping presumption” in s. 212(3), with a mandatory conclusion 
of guilt should the burden not be met, was held to offend s. 11(d). BUT was 
saved by s.1 
Æ If man was living off avails of prostitution automatic presumption arose that he was 
guilty of pimping as it was difficult to get women and girls to testify against their pimps 
as they feared violence 
• Whyte, Downey, Chaulk = also saved by s. 1. 
 
Actus Reus 
• Legal element of an offence 
• Must be proven beyond a reasonable doubt by the Crown 
• Accused must commit at the same time as the fault element = SYMMETRY 
WITH MENS REA 
 
 
• Includes three elements: 
1. Act/Omission 
 
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2. Volunariness 
3. Causation 
A. Act or Omission 
 
1. Act or Omission? 
• If Act, then go to voluntariness 
• If Omission then need to ask DOES A DUTY EXIST??? 
 
2. If an Omission, does a LEGAL duty exist? 
 
• The Duty may be found in the CC or Imported from CL 
• Sections 215-218 and sections 219, 220 and 221 (Criminal Negligence 
Causing Death). (Even for some CC sections, you made have to go the CL 
if specific relationship isn’t set out in the code i.e. s. 215.1(c) (i) 
• Must be a Legal and NOT a moral duty (Beardsley) 
• Legal Duty Exists (at CL) only for certain types of relationships i.e. of 
Care and Control (Beardsley). 
R. v. Instan  
• niece found to not have provided necessities of life to aunt 
• factors establishing a duty:  
i. 
niece was living off aunt 
ii. 
aunt was wholly reliant on the niece 
• argument seems to hinge a lot of $ support by the aunt – BUT why do you say b/c 
someone provides for you financially you owe them a duty?  
• Every legal duty is founded on a moral obligation. D was under a moral obligation 
from which arose a legal duty 
• difficult argument to make that you’re going to start seizing people with duties that 
are not normally imposed  
People v. Beardsley 
• married guy with girl who took sleeping pills and died in his basement  
• held: NO duty of legal protector b/c she was not his wife – this was only a moral 
obligation but not a legal one 
• 
. NO DUTY B/C NOT UNDER RELATIONSHIPS COURT’S RECOGNIZE: a.) 
man and wife, b.) parent-child, c.) master-seaman 
• unlike Instan she could have left – court doesn’t think too highly of her actions either 
(partly responsible) 
 
 
 
 
 
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R. v. Thornton 
Facts: Defendant donated blood to the Red Cross knowing that he was HIV positive and 
did not report this to any medical professionals. Defendant also knew that Red Cross 
would not accept blood that was HIV positive. (TJ convicted accused of committing 
nuisance s. 180 as his omission (i.e. failure to inform) breached a legal duty and 
endangered the lives or health of the public 
• s.180(2) of the Code holds that everyone commits a common nuisance who does an 
unlawful act or fails to discharge a legal duty thereby endangering the lives or health 
of the public. 
Held: No unlawful act, therefore must determine whether there existed a legal duty not to 
donate contaminated blood. No duty exist in the CC but: 
• At common law, duty exists to refrain from conduct which would cause foreseeable 
injury (Donnahue v. Stevenson) TORT LAW. 
Judge applied this common law duty to common nuisance and held that the accused’s 
omission (i.e. failure to inform) breached this duty as the omission would cause 
foreseeable injury. 
• problematic: large duties imposed on people they might not know about  
 
3. If a Duty exists, has it been breached? 
R. v. Urbanovich 
• s.215 – duty of persons to provide necessaries of life for a child……if failure to 
provide necessaries results in….s.219 
• s.220 (Criminal Negligence Causing Death) 
• baby died in parents care, although the wife did not inflict the injuries (the husband 
had been injuring the child for a long time) and although she had taken the baby to 
hospital she’d never given full details 
• Issue: Mother and father owe a duty of care towards their child Æ what does this duty 
involve? Duty to provide the child with necessities of life and with medical aid 
[Was the duty to provide her child with medical aid breached by mother?] 
• Held: Duty because she was the protector and she did NOT discharge it Æ criminal 
negligence causing death 
• 
test to see if she breached duty:  
o was the child in need of medical attention? 
o was the accused aware that the child was at risk unless help was quickly 
provided? 
• although she had taken child to the hospital: (i) she did not disclose all info to Dr; and 
(ii) she waited to take the child to the hospital 
• have to wonder if she is being beaten too (represented by the same lawyer) 
• dissent: numerous trips to the hospital seem to negate criminal negligence 
 
R. v. Ssenyonga  
• man who knew he was HIV positive concealed this and infected 3 women through 
intercourse Æ charged with common nuisance 
 
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• held: NO conviction b/c women were not part of the “general public” (distinguished 
members of public as opposed to the individual) 
o sexual assault charges dismissed b/c they had given their consent and the fact 
that he had concealed his HIV status did not negate consent 
• seems completely inconsistent from Thornton 
 
 
B. Voluntariness 
 
• Common law requirement that actus reus or physical act/omission must be 
voluntary and willed 
Æ Where the accused acted involuntarily, this state is called automatism and is 
divided into two subcategories: sane automatism (which results in absolute 
acquittal) and insane automatism (which invokes mental disorder framework 
prescribed by s.16 of Code) 
 
• Forms of sane automatism: 
o Voluntary Intoxication (King) 
o Physical Blow (Physical Blow) 
o Psychological Blow (Rabey) 
o Sleepwalking (Parks) 
C. Causation 
o Must prove both FACTUAL and LEGAL Causation (Smithers) 
o Crown must prove beyond a reasonable doubt. 
o Factual Causation=significant contributing cause (Nette: Manslaughter 
and 2nd degree) 
o 1st degree murder requires “substantial and integral contribution” 
(Harbottle) 
 
1. Was there factual causation? 
R. v. Smithers 
• Smithers punches Cobby to the head twice and then kicks him in the stomach. He 
died due to aspiration of foreign materials present from vomiting .Evidence suggested 
the vomiting was either sptontanous or caused by the fear or both and that the 
aspiration was either spontaneous or caused by the deceased faulty epiglottis or the 
kick or both 
• held: kick caused the death b/c it was a contributing factor at least beyond the de 
minimis (even though could not say with precise certainty what caused the death 
• ratio: Need to show both FACTUAL AND LEGAL and test is that needs to be a 
cause outside the de minimis. 
 
 
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R. v. Duncan 
o Court held that no causation existed as act performed by the accused may not have 
caused victim’s death 
Æ Expert testimony indicated that cardiac arrest could have been caused by stab wounds 
inflicted by accused or that cardiac arrest could have been caused by unrelated heart 
condition 
 
R. v. Johnston 
• 
taxi driver took jacket from intoxicated passenger who couldn’t pay fare (collateral) 
and left her at address where no one was home – driver asked dispatch to call police 
to check on PL but dispatcher though unnecessary Æ passenger froze to death 
overnight 
• held: Acquitted Æ could NOT prove that the loss of one jacket (she had two) caused 
the death  
 
R. v. Nette 
• Pl tied up old woman during robbery who died 
• held: guilty of 2nd degree murder b/c tying up contributed to death 
• majority: new test for causation of 2nd degree murder: a “significant contributing 
cause”  
• Approved of the test for 2nd degree murder and unlawful act first degree, 
limiting the more stringent test from Harbottle to first degree murder. 
 
2. Was there legal causation? 
 
o Is it somehow just to attribute causality to the accused for a particular consequence? 
o Can be found in some CC sections: 222 (5) (6), 224, 225, 226, 228 
o Where the Code doesn’t provide, look to the CL i.e. Thin Skull (Smithers and Blaue) 
and Forseeability. 
R. v. Blaue 
Æ the accused had argued that he did not cause his victim’s death because she, as a 
Jehovah’s Witness, refused blood transfusion in treatment for 4 stab wounds, including 
one in her lung that would have saved her life.  This was rejected.   
Æ see also s. 224 and 225 and 226 
 
R. v. Cribbin 
ÆContributing cause “beyond a de minimis” range combined with constitutionally 
required fault element in Creighton= no danger that morally innocent person might be 
convicted of manslaughter.   
 
 
 
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R. v. Harbottle 
Æ court held that a more stringent test for legal causation is required in the case of first 
degree murder.  The crown must prove that the accused participated in the murder in such 
a manner that he was a “substantial an integral cause of the death”  and where” there was 
no intervening act of another which resulted in the accused’s no longer being 
substantially connected to the death.   
 
Mens Rea 
Different actus reus and mens rea must be proven depending on whether the charge 
is murder, unlawful act manslaughter or manslaughter by criminal negligence 
Unlawful act manslaughter 
(s.222):  
1. Unlawful act = dangerous 
2.Marked Deviation from std of 
care that a reasonable person 
would exercise AR 
3.Foreseability of harm as a 
consequence of the unlawful act 
o Causation 
o Death of human being 
Manslaughter by 
Criminal Negligence 
(s.219) 
1. Proof of Crim. Neg. 
set out in s. 219 [actus 
reus  + reckless 
disregard for lives + 
safety of others (mens 
rea)] 
2.Causation 
3.Death of a human 
being 
Manslaughter 
1.Conduct causing death of 
another person; AR 
2.Fault short of intention to 
kill (SF of bodily harm, OF 
of death or bodily harm) MR 
Two Types: 
a.) unlawful act causes death 
b.) criminal negligence 
 
 
Mens rea – the mental element of fault associated with the commission of an offense 
Æ Did the accused intend: 
o To do the act or perform the actus reus  
o To bring about a particular consequence from the commission of the the 
actus reus or act  
Æ (i.e. intended to kill the person, inflict grievous bodily injury, etc.) 
 
o Is the test for mens rea, objective or subjective: 
o Subjective: what was the accused thinking or intending during the 
commission of the actus reus 
o Objective: what a reasonable person would have thought or intended while 
committing the actus reus 
 
Objective vs. Subjective Test: 
Subjective: what was the accused thinking 
or intending during the commission of the 
actus reus (act/omission) 
- looks at state of mind (less likely to be 
unconstitutional!) 
Objective: what a reasonable person would 
have thought/foresaw/intended while 
committing the actus reus (act/omission) 
* Only exception is incapacity = too 
young, mentally/physically challenged. 
Murder 
Requires  
subjective 
foresight of 
death 
 
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________________________________________________________________________ 
Steps: 
1. Identify the fault element/mens rea for the offence (7 recognized forms outlined in 
detail below):  
General Tips: 
• Read the relevant statutes and Criminal Code sections  
• Does it contain mens rea language such as “willfully” “with intent” “knowingly” 
“intentionally” etc.?   
• Is it a provincial or federal offence? If provincial, more likely be absolute or strict 
liability 
• Is offence penal in the ‘true sense’=?  If yes, than cannot be an absolute liability 
offence 
• Look at the common law 
 
2. Ask if offence is “regulatory,” “public welfare,” per R. v. City of Sault Ste Marie.   If 
so, its either Strict Liability or Absolute Liability: 
 
3. May want to consider whether there are any potential Charter challenges. 
• Section 7? 
• Section 11(d)? 
• Section 1? 
 
Absolute Liability 
• Absolute liability as a fault element requires only that the prosecuter prove actus 
reus of the offence, with no avenues open to the accused other an actus reus 
defences. 
• Traditionally for regulatory offences where the public welfare was at stake 
 
Sault. St. Marie 
• Created a new offence of “Strict Liability” w/ a defence of due diligence in which 
public welfare offences would now prima facie fall. 
Ratio: There is a “halfway house” between mens rea and absolute liability. There are 
cases where the accused should be allowed to show due diligence on a balance of 
probabilities.  
• prosecution must prove beyond a reasonable doubt that the defendant committed 
the prohibited act 
• defendant must establish only on the balance of probabilities that he has a defence 
of reasonable care. 
 
Therefore, now there are three categories of offences instead of two: 
a) Offences requiring proof of mens rea (true crimes) Æ true crimes 
 
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b) Offences where there is no necessity for the prosecution to prove mens rea, 
leaving it open to the accused to avoid liability by proving he took all 
reasonable care i.e. due dilligence (STRICT LIABILITY) Æ public welfare 
offences prima facie fall here 
c) ABSOLUTE LIABILITY where it is not open to the accused to exculpate 
himself. Æ those offences where the legislature has made it clear that guilt 
will follow merely with proof of the proscribed act. 
 
Reference Re: Section 94(2) of the Motor Vehicle Act 
• Ratio: absolute liability will offend s.7 where it has the potential to deprive of life, 
liberty or security of the person (i.e. imprisonment) 
• administrative expediency should only arise under exceptional circumstances 
• distinction b/w absolute and strict liability can’t be upheld and not saved by s.1 b/c of 
risk to liberty of individual  
NOTE: R. v. PontesÆconfirmed the constitutionality of absolute liability offences where 
the offence permits only a fine as a penalty. 
 
Strict Liability 
• Majority of regulatory offences characterized as Strict Liability unless something in 
statute that characterizes them as Absolute Liability Æ new from Sault Ste Marie 
 
• Strict Liability Definition: After it is proven that the accused performed the prohibited 
act or omission (actus reus) beyond reasonable doubt, the burden shifts to the accused 
to exculpate him/her on the balance of probabilities.   
o Accused has two ways to exculpate himself: (1) acting on reasonable 
mistake of fact (R. v. Ellis-Don), and (2) exercising due diligence 
(consistent with what the reasonable person man would have done under 
the circumstances) (R. v. City of Sault Ste Marie). 
o Fault element is negligence for these types of offences (Court said not 
unconstitutional in Wholesale) 
 
R. v. Wholesale Travel Group 
 
Facts: Wholesale Travel Charged under the Competition Act s. 36(1) and 37.3(2) with 
false advertising. Advertising vacation packages at “wholesale prices” while at the same 
time charging a price higher than the cost incurred by the company in supplying those 
vacation packages. 
 
Summary of holding:  
 
• Majority found that negligence, as mens rea standard, did not violate s.7 
because : 
 
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1. This standard was consistent with the historical idea of regulatory offenses that 
government should not have to prove full mens rea 
2. Impractical for government to prove mens rea as too many resources are required to 
do so, whereas proving that accused breached reasonable standard of care is much 
easier 
3. According to licensing theory, if someone voluntarily chooses to undertake regulated 
activities, the regulated actor must expect the imposition of a reasonable standard of 
conduct 
 
• Reverse onus clause requiring accused to prove due diligence/non-negligence on 
balance of probabilities offended s.11(d) of Charter, but it was ultimately upheld 
because: 
1. If accused’s burden was lowered to raising reasonable doubt, it would become almost 
impossible for the Crown to prove the elements of the offense 
Æ impractical for government to prove full mens rea which would lead to a reduction 
in convictions and undermine the entire regulatory scheme 
2. Only the accused has the knowledge within the context of regulatory offenses to 
prove full mens rea as they were the only ones who knew what they were thinking 
 
Negligence 
• Tested objectively or subjectively??? 
APPROACH TO NEGLIGENCE (Creighton) 
1. Is there prima facie actus reus. This requires that the negligence constitute a 
marked departure from the standards of the reasonable person in all the 
circumstances of the case. 
2. Is there prima facie mens rea in the form of objective (reasonable person in the 
circumstances of the accused) foresight or risk of harm bodily harm that is 
neither transient nor trivial. 
3. Is there a reasonable doubt as to the lack of capacity to appreciate the risk? If 
yes then must ask whether the accused possessed the requisite capacity to 
appreciate risk flowing from his conduct? 
 
Provisions requiring negligence as the fault element of mens rea include: 
1. Criminal negligence (s.219,220,221) 
2. Failing to provide the necessities (s.215) (Naglik) 
3. Dangerous driving (s.249) (Hundal) 
4. Careless handling of a weapon [s.86 (2)] 
 
 
R. v. Creighton [1993] SCC – p.80 
 
• Def charged with s.222 “unlawful act manslaughter” after he injected the victim with 
cocaine. Challenge to the constitutionality of obj. test. Is this a crime of sufficient 
stigma to require a subjective test??? 
• Ratio: only need foreseeability of the risk of bodily harm for “UAM” (objective test) 
 
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• 
this articulation of standard of “f/s risk of harm” does NOT violate s.7 
• Mens rea = “objective foresight of risk of bodily harm that is neither trivial nor 
transitory in nature”  (he could have f/s the risk of bodily harm and should have 
informed himself if he didn’t know) 
o The objective test is warranted due to the lower stigma attached to 
manslaughter. 
o Symmetry between actus reus and mens rea can be relaxed in accordance with 
the thin-skull principle. 
 
R. v. Browne (1997)  
• Def (drug dealer) undertook some steps to perform promise to take his friend to 
hospital after she swallowed bag of cocaine – he did but only by calling taxi hours 
later 
• held: acquittal – no evidence any other course of conduct (calling ambulance?) would 
have saved her life 
• q/v to Creighton – more of an omission (they say) – both responsible for their own 
actions (but are they really dissimilar) 
• 
in Creighton a lot placed on fact that he did the drug injection 
R. v. Naglik  
• failure to provide necessaries of life s. 215(2) 
• objective test  BUT were willing to consider some personal characteristics of the 
accused  
R. v. Hundal 
SCC held that fault element within the context of dangerous driving is a modified 
objective test: based on the context of the accused driver, was his conduct a marked 
departure from that of a reasonable driver? 
 
Willful Blindness 
• Tested Subjectively 
• Wilful ignorance exists when: (1) The accused suspects that certain facts exist or 
that a certain consequence may ensue; (2) but deliberately refuses to consider or 
acknowledge the risk.  
• Not specified in the code but may be read in by the courts as another form of 
proof of recklessness. 
• Mens rea can be satisfied if the accused believes that s/he is undertaking an illegal 
act, but wilfully “shuts his/her eyes” as to what the specific illegal act was (R. v. 
Blondin). 
 
Recklessness 
• Tested Subjectively 
 
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• Mens rea of recklessness is proven when: (1) The accused recognizes the risks 
associated with his actions; (2) but proceeds to commit the act with this 
knowledge in mind. 
• Offences include: arson (s.433) & murder (s.229). 
• Judges may hold that proof of a reckless state of mind is sufficient to sustain 
conviction for an offence that has intention or knowledge as a mental element (R. 
v. City of Sault Ste Marie). 
 
Intention 
• Tested subjectively 
• Specific Code provisions require that the accused possess a specific intention or 
knowledge: 
o s.136: fabricating evidence requires “intent to mislead” 
o s.229(a)(i) for murder: accused meant or intended to cause death 
o Intention is tested subjectively. 
• Courts sometimes read in intention/knowledge (Sault Ste Marie)  
 
Third-Party Liability 
 
• Section 21(2): Allows for an objective test of forseeability for crimes linking the 
accused to the primary offender. 
• R. v. Logan (1990):  s. 21(2) read down for Murder and Attempted Murder to 
require SUBJECTIVE FORSEEABILITY 
• R. v. Jackson: confirmed Logan that objective forseeability for manslaughter is 
constitutional. 
• For sexual assault causing murder, the accomplice can be convicted of 
manslaughter as a party to first degree murder a) they were a party to the assault 
and b) they knew the assault was likely to cause some harm short of death (R. v. 
Kirkness, R. v. Jackson)  SCC 
• For accomplices to a murder, the starting point for the jury should be that non-
accidental presence at a murder presumes guilt.  But to render an accomplice 
responsible for first degree murder, need to prove s/he aided in the planning or 
deliberation of the murder, or that s/he intended to abet a planned and deliberate 
murder (R. v Twiggie). Sask C.A.: 
• Gang rapes: Say that physical presence is NOT enough 
o Crown must prove not only actual aiding or encouragement but intentional or 
“wilful” encouragement 
o R. v. Salajko and R. v. Clarkson – “passive encouragement” or “knowingly” 
standing by was insufficient. 
 
 
16
R. v. Vaillancourt 
• Facts: committed armed robbery when gun was discharged by accomplice killing the 
client – the appellant did not think the gun was loaded  
• charged under s.213(d): implicate person that was present at a homicide – this was all 
that was needed to convicted (if a murder occurred during another unlawful act)  
• ratio: conviction for murder cannot rest on anything less than proof beyond a 
reasonable doubt of subjective foresight of death. 
• Held: this section violated s.7 and NOT upheld under s.1 (potentially convict 
someone “blameless”) 
 
Only provisions remaining to prosecute murder are ss. 229(a)(i), 229(a)(i)(i), 229(b). 
 
Corporate Homicide 
 
Criminal Prosecution of Corporations for Defective Products 
(Vandall) 
• Historically, corporations could not be prosecuted for a crime because: 
i. Corporation is not human Æ therefore it cannot have intent* 
ii. Primary remedy available under criminal law (imprisonment) was not 
available to corporations 
 
• Corporation was held liable for manslaughter in 1904 case, US v. Schaick for not 
providing life preservers on its steamship as by their, “misconduct, the life of a 
person was destroyed”, which was consistent with the offense of manslaughter 
 
• Corporation was not held liable for homicide in 1909 case, People v. Rochester 
Railway as Court held that use of “another” within homicide provision precluded 
corporations from applying with it 
 
• Model Penal Code is persuasive in deciding whether corporations can be held 
liable for homicide. Corporations should be held liable where: 
o Where particular statute expresses legislature’s intention to include 
corporations 
o Illegal act is performed by agent of employer who is acting within his 
scope of employment 
o Illegal act is performed for the benefit of the corporation 
o When act involved acquiescence of executives of the corporation and was 
within scope of employment 
 
• Criminal prosecution of corporate crimes is inefficient because: 
o Product manufacturers are rarely sued because most cases involve 
negligence which is a different burden for complainant to prove 
o Statute of limitations apply and many suits are brought after limitation 
period has expired 
 
17
o Extremely expensive to commence legal proceedings that may last several 
weeks Æ expert testimony, product testing, shifting though paper, etc. 
 
o Punitive damages do not increase the manufacturer’s cost of doing 
business and therefore manufacturing defective products seen as efficient, 
why? 
• Law suit victories are rare 
• Punitive damage awards are even rarer 
• When significant punitive damages are awarded, the Court often 
overturns it on appeal 
Æ ex. appeal court overturned trial court’s decision to award 
$125,000,000 in punitive damages and awarded only $3.5 million 
to Ford which would represent the actual amount of money saved 
by Ford by not fixing tank 
 
o Impact of negative publicity is not as adverse as anticipated and often 
unpredictable 
o Extremely difficult to prove causation 
 
• In conclusion, corporate crime pays, unless the following improvements can be 
made: 
o Imprisonment of corporate executives Æ executives responsible for the 
manufacture of defective products should be jailed, which is 
unfortunately, unlikely to occur as white collar crime is not as serious as 
other crimes 
o Fines equal to 1% of net profit Æ as small fines lack any stinging power 
 
Criminal Liability of Organizations 
 
Mens rea and actus reus generally: 
i) may impute guilty mind to an organization through an agent of the organization, 
per ss. 22.1 and 22.2 
ii) act may be direct (commission) or indirect (omission) if there is an unlawful act 
involved (see Corporate Homicide below) – must involve one or more 
representatives of the organization 
 
Negligence Offences: 
Individual(s) within the organization must be party to the offence: 
S. 22.1 
i) Was one representative – acting within the scope of his/her authority – party to 
the offence? 
ii) Were two or more representatives engaged in conduct – ACT or OMISSION – 
for which one representative acting within the scope of his/her authority would 
have been considered party to the offence? 
iii) Did the senior officer(s) responsible for the relevant area depart MARKEDLY 
 
18
from the STANDARD OF CARE that could have REASONABLY prevented 
the officer(s) from being considered party to the offence? 
 
Non-Negligence Offences: 
S. 22.2 
A.  Was it a SENIOR OFFICER acting AT LEAST IN PART to BENEFIT the 
organization? 
 
B.  Direct commission/omission of senior officer? 
i) Did s/he act within the SCOPE of his/her authority? 
 
C.  Did a senior officer direct another? 
i) Did the senior officer have the mental state required to be party to the offence? 
ii) Act within his/her authority? 
iii) Direct another to ACT or FAIL TO ACT so that the offence would be 
committed? 
 
D.  Did a senior officer fail to act? 
i) did the senior officer know that a representative of the organization is, or is 
about to be party to the offence? 
ii) Did the senior officer fail to take ALL REASONABLE MEASURES to stop a 
representative of the organization from being party to the offence? 
 
iv) Was one representative – acting within the scope of his/her authority – party to 
the offence? 
v) Were two or more representatives engaged in conduct – ACT or OMISSION – 
for which one representative acting within the scope of his/her authority would 
have been considered party to the offence? 
vi) Did the senior officer(s) responsible for the relevant area depart MARKEDLY 
from the STANDARD OF CARE that could have REASONABLY prevented 
the officer(s) from being considered party to the offence? 
 
• S. 735(1) – an organization convicted of an offence is liable, in lieu of any 
imprisonment that is prescribed as punishment for the offence to be fined except 
where otherwise provided by law: 
 
a) indictable offence – in an amount determined by the discretion of the court 
 
b) summary offence – not exceeding $100,000 
 
• Section 718.21 sets out aggravating and mitigating factors to consider in 
sentencing. 
 
 
 
 
 
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Corporate Homicide 
s. 222(5) – culpable homicide: “A person commits culpable homicide when he causes 
the death of a human being” 
 
Nature of the Offence 
1. Was there an unlawful act? 
– s. 222(5)(a) – culpable homicide by means of an unlawful act 
– s. 234 – manslaughter 
– Breach of PROVINCIAL STATUTE is a sufficient unlawful act: 
– R. v. DeSousa 
– R. v. Creighton – provincial offence can be the basis of unlawful act 
manslaughter 
– R. v. Curragh – the effect of an expiration of a limitation period for a 
provincial offence will only bar the prosecution of the provincial offence, but 
not the manslaughter/homicide offence 
 
2. Was the death a result of negligence? 
i) CRIMINAL NEGLIGENCE: 
– s. 222(5)(b) culpable homicide by Criminal Negligence 
– “wanton or reckless” disregard? 
 
ii) PENAL NEGLIGENCE: 
– failure to comply with a statutory duty to take care is penal 
negligence (Creighton and Gosset) 
– penal negligence can be the basis for the offence of unlawful act 
manslaughter (Gosset) 
 
TEST = OBJECTIVE: 
i) foreseeable risk of bodily harm? 
ii) “marked departure” from the standard of a reasonable person (NOT 
wanton or reckless disregard)? 
iii) Consider all circumstances: what would the reasonably prudent 
person have done in the situation? 
iv) Onus of proof beyond a reasonable doubt is on the Crown (Creighton) 
 
Consent 
• Can be characterized as an element of the actus reus (where the code states) OR 
as a defence (vitiating AR) 
• Either way the defence bears the evidentiary burden and then the Crown must 
prove the absence of consent beyond a reasonable doubt. 
• Non-consent as an element of the actus reus can be  
a) included in the wording of the CC (i.e. s. 265.1(a)) 
b) read in by the courts as part of the CL def. of the offence (Lemieux-B&E) 
• Successful defence= vitiates AR=ACQUITTAL 
 
 
20
 
 
 
General Assault 
Elements of Assault Causing Bodily Harm 
a) Intentional (Subjective Mens Rea) 
b) Application of Force (Objective) 
c) Causing Bodily Harm (Objective) 
d) Absence of consent (Subjective) 
 
• Proof of absence of consent required for all assaults EXCEPT murder 
(Jobidon) 
Authority: STATUTORY: s.265(4) CC 
o s.265(1): a person commits an assault when: (a) without the consent of another 
person he applies force…..” 
o s.265(4): Accused’s belief as to consent – “where an accused alleges that he 
believed the complainant consented to the contact that is the subject matter of 
the charge, a judge, if satisfied there is sufficient evidence and that if believed 
by the jury, the evidence would constitute a defence, shall instruct the jury when 
reviewing all the evidence relating to the determination of the honesty of the 
accused’s belief, to consider the presence or absence of reasonable grounds for 
that belief” 
 
• Limits:  
o s.265(3): “for the purpose of this section, no consent is obtained where the 
complainant submits or does not resist by reason of:  
a. the application of force to the complainant or to a person other than the 
complainant; 
b. threats or fear of the application of force to the complainant or to a person 
other than the complainant; 
c. fraud; or  
d. the exercise of authority 
o Jobidon (SCC): you cannot consent to “serious, non-trivial harm” even if 
you’ve consented to some physical force 
 
1. Fights 
 
TESTED SUBJECTIVELY: Did the complainant consent to the fight??? 
 
Exception: 
 
a) Fist fights involving the intentional application of force causing serious hurt or non-
trivial bodily harm (Jobidon) 
b) Cannot consent to Domestic Assault (Stewart) 
 
21
 
R. v. Jobidon 
Facts: Accused and victim involved in a bar fight in which accused punched victim 
rendering him unconscious. After becoming unconscious, accused punched victim 4 to 6 
more times resulting in victim’s death 
 
Issue: What is the scope of consent? How much violence can someone consent to? 
 
Ratio: Court held that you cannot consent to serious bodily harm as it is against 
public interest. 
Æ Consent is vitiated where one intentionally seeks to cause serious or non-trivial harm 
to another in the course of a fight or brawl 
Æ Therefore, there is a limit to how much violence you can consent to even if you 
explicitly consent to the fist fight (as consent is automatically vitiated if other party 
intentionally seeks to cause serious bodily harm).  
 
NOTE: note that in youth cases, verdicts have been inconsistent – R v W(G)  
(accused convicted) and R. v. M(S) (accused acquitted). Both courts mentioned the 
intentional application of force and the seriousness of the bodily harm as distinguishing 
factors. 
 
2. Sports Context and Implied Consent 
• Consent=Subjective but Implied Consent=objective criteria (LeClerc) 
• Implied consent to contact which is to be expected by participating  
in the game, but not that which is so dangerous as to be outside of the scope of the  
game, or that is of such a nature that no consent could be given (ie. Causes serious  
bodily harm). (Cey, LeClerc) 
 
R. v. Cey (1989) 
• 
in hockey game the Def cross-checked from behind a player into boards Æ significant 
injuries Æ charged with “assault causing bodily harm”  
• held: could NOT consent to this type of bodily harm; likely has to do with the extent 
of the harm  
• ratio: when playing sports you impliedly consent to a certain level of harm/violence 
(but courts will draw lines)  
• It is clear that in agreeing to play the game a hockey player consents to some forms of 
intentional bodily contact and to the risk of injury thereof. However there are also 
some actions that are reasonably beyond that which someone is consenting to by 
agreeing to play the game 
 
 
R. v. LeClerc 
 
Facts: During a non-contact hockey game, accused hit victim in the back with a hockey 
stick. Victim was paralyzed from the neck down. The game’s referee described accused’s 
 
22
act as deliberate, vicious and resolving to cause injury. Accused was charged with 
aggravated assault. 
 
Held: ACQUITTED: A player, by participating in sport such as hockey impliedly 
consents to some bodily contract necessarily incidental to the game but not to overly 
violent attacks (Cey) all of which should be determined according to objective criteria. 
• OBJECTIVE criteria; but with attention paid to the conditions under which the 
game is played (setting of the game, league, extent of force employed etc.) 
• The fact that it is a non-contact league is not determinative though, as 
infractions are an expected part of the game. 
 
Sexual Assault 
Elements of Sexual Assault:  
• Actus Reus: unwanted sexual touching: 
i. 
touching (objective) 
ii. 
sexual nature of conduct (objective) 
iii. 
absence of consent (subjective) 
• Mens Rea: intention to touch, knowing of or being reckless of or wilfully blind to a lack of 
consent, either by words or actions from the person being touched (subjective) 
 
• Definition:  Criminal Code s. 273.1(1):  “voluntary agreement of the complainant 
to engage in the sexual activity in question” 
 
• As an element of the actus reus, consent is determined SUBJECTIVELY from 
the point of view of the COMPLAINANT.  It is thus only an issue of the 
complainant’s credibility as a witness.  The defendant’s belief in consent is 
irrelevant at this stage.  R v. Ewanchuk 
 
• Onus: burden on Crown to prove beyond a reasonable doubt that there was NO 
consent (tested subjectively from the POV of complainant) and the Def did not 
believe there was a defence (See Mistake of Fact) 
 
 
Limits-Statutory:  CC s.273.1(2):  No consent where… 
a) expressed by a person other than the complainant 
b) complainant is incapable of consenting 
c) consent induced by abuse of power, trust, or authority 
d) complainant expresses a lack of agreement to engage in the 
acitivity 
e) complainant expresses lack of agreement to continue 
o CC s.265(3):  No consent where complainant does not resist because of  
a) application of force 
b) threats or fear of application of force 
c) fraud 
d) the exercise of authority 
 
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o CC s.273.2: belief in the consent is no defence when:  
(a) the accused’s belief arose from the accused’s 
i. 
self-induced intoxication, or 
ii. recklessness or wilful blindness; or 
(b) the accused did not take reasonable steps, in the circumstances known to the 
accused at the time, to ascertain that the complainant was consenting 
 
 
Limits-CL: 
R. v. Cuerrier – consent to sexual activity vitiated by (a) dishonest act (or 
omission) + (b) significant risk of serious bodily harm (in this case, risk of 
infection with HIV) 
 
      
             R. v. Ewanchuk: No implied consent for sexual assault. 
 
R. v. Ceurrier 
 
Facts : Def had HIV and was told to use protection Æ had unprotected sex with two 
women (both said would not have had unprotected sex with him if they’d known he was 
HIV+)  
 
Issue:  According to s.265(3) consent is vitiated by fraud. 
Æ Is non-disclosure in this case considered fraud pursuant to s.265(3). 
 
Held: guilty – aggravated assault 
• Cory: Non-disclosure is fraud that can vitiate consent but must be significant risk of 
bodily harm.   
• L’HD: focused on whether or not the person would have consented if they had known 
Æ don’t need to think about the harm 
• McLachlin: characterize fraud as going to very nature of the act – interpret deceit as 
to STD as “fraud” if it vitiates consent 
 
R. v. Williams [2003]  
• Def and victim had unprotected sex and later he found out he was HIV+ but never 
told her 
• held: no evidence to establish the unprotected sex exposed her to significant risk of 
bodily harm (Cuerrier) since she was likely already infected when he got tested and 
learned of his HIV status. 
o his failure to disclose did NOT take away consent b/c it did not add to the risk 
• Ratio: it is the risk of harm that makes the consent important 
 
R. v. Ewanchuk [1999] SCC – p.186 
• Issue: is there a defence of implied consent? 
 
24
• Held: NO defence of implied consent in Canadian LawÆ possible the accused’s state 
of mind is relevant in regards to consent but only if it goes towards the “mistaken 
belief of fact” and toward mens rea (Not Consent and AR) 
• SCC: the implied consent from TJ and CA reinforced stereotypes about women:  
o didn’t resist violently 
o what she was wearing and the fact she has a child and living with boyfriend Æ 
not virginal so if you’ve had sex b/f why say no now 
o idea that “bad girls” invite rape 
 
Correction 
• Statutory defence: Contained in s. 43 of the Code : allows for force for correction 
against a child by a parent or person acting in the place of a parent (Code still 
states “Teacher” but removed by CFCYL) 
• Onus on accused for evidentiary and then on Crown to disprove beyond a 
reasonable doubt. 
• Successful defence=acquittal 
 
Elements 
Does the accused fall w/in s. 43? 
Section 43 applies to: 
  
- Parents 
 
- Persons standing in the place of parents 
- an individual who has assumed all the obligations of parenthood                          
(Ogg-Moss) 
Section 43 does not apply to  
 
-Teachers (CFCYL) 
 
-Mental Retardation Counsellors (Ogg-Moss) 
   
Does the victim fall w/in s. 43? 
Section 43 applies to children 
- “Child” refers to a person’s chronological age or relationship to a parent, not to                
   
    their mental state or capacity (Ogg-Moss)   
- Section 43 DOES NOT apply to: 
 
- Children under the age of 2 (CFCYL) 
 
- Teenagers (CFCYL) 
Was the force corrective? 
Section 43 will NOT apply when the child is incapable of learning from the application 
of force (CFCYL) 
  
- If they have a mental disability such that the cannot learn from the                          
               application of force, then the force cannot be corrective (OggMoss)  
 
25
 
-Children under 2 and teenagers don’t learn from correction (CFCYL) 
 - Punishment motivated by anger, caprice, bad-humor, or arbitrariness will not be 
protected by s.43 (OggMoss, Dupperon) 
 - The parent must have believed that there were “reasonable and probable grounds” to 
justify correcting the child (Dupperon) 
Was the force reasonable? 
-Def: “Minor Corrective Force of a transitory or trifling nature” (CFCLY) 
 
-Force cannot be excessive – Community tolerance test: nature of offence calling for 
correction (altered in CFCYL), age, temperament of child, degree of gravity of 
punishment, circumstances under which inflicted and injuries caused (Dupperon) 
 
- The nature of the offense requiring correction is not a relevant factor (CFCYL) 
 
- LIMITATIONS ON WHAT IS REASONABLE (CFCYL) 
- corporal punishment of children under 2 is harmful to them & has no corrective 
value given their cognitive limitations; corporal punishment of teenagers is 
harmful since it can induce aggressive or antisocial behavior. 
- corporal punishment using objects, i.e. belts, rulers = physically & emotionally 
harmful 
- corporal punishment involving slaps or blows to the head is harmful  
      -     Reasonable force will never involve cruel, inhumane or degrading treatment  
      -     Corporal punishment by teachers is not reasonable, though they may use 
reasonable corrective force to restrain or remove children in appropriate circumstances  
 
Cases 
R. v. Ogg-Moss 
Facts: Defendant was employee at institution for mentally disabled and was responsible 
for supervising group of residents. During lunch, victim who was incapable of speech and 
severely disabled spilt his milk to which the accused hit him with spoon. 
 
Issue: Could the defendant rely on the defence of correction pursuant to s.43 of Code? 
Æ NO: should be strictly interpreted because it makes an illegal activity 
legal and removes legal protection away from a vulnerable group 
 
• s.43 only applies to parents or those standing in place of parent which the accused 
was not 
Æ parents have responsibilities and obligations towards their children 
which were not present in this relationship 
Æ parent can delegate authority to others to act in their place and in this 
case, authority was delegated to minister and not further delegated to 
accused employee 
 
 
26
• s.43 only applies to children and victim was not considered a child by the Court 
Æ victim did not fall within ambit of child as was defined by Court as he 
was neither of lineal descendant from accused nor was he chronologically 
under the age of majority. 
ÆChild is a transitory phase and labeling a challenged person a “child” 
would leave them w/o protection for life. 
 
• s.43 also only applies to for corrective force. Here the victim was not capable of 
remember the punishment and so it couldn’t be used for correction. 
 
R. v. Dupperon 
 
Facts: Father charged with assault for strapping his 13 year old son across the barebuttox 
10 times leaving four or five bruises on the boys left buttox. TJ found both that the 
strapping was not by way of correction and was not “reasonable force” 
 
Issue: a) Was the strapping for correction? b) Was unreasonable force used? 
 
Held:  
a) CA said that the TJ erred and the strapping was used for correction 
• It was done after he had been grounded several times, It was repeated after 
he “lipped off”, Michael was a behaviorally troubled child, Isnt an issue of 
whether the boy was actually deserving of punishment, but whether the 
adult honestly believed that the child was deserving of punishment. (This 
has since been overruled in CFCYL which says that the action being 
“corrected” plays no role) 
b) CA said the force used was unreasonable under the circumstances 
• Court must view both from an objective and subjective view; nature of the 
offence calling for correction, age and character of the child, degree of gravity 
of the punishment, injuries suffered etc.  
• Any punishment motivated by arbitrariness, caprice, bad humor,  constitutes 
an offence 
 
DeMinimus 
• The maxim de minimis= the act is so minimal as to be trifling in nature: R. v. 
Lepage 
• Burden of Proof:  Onus is on the accused to raise evidentiary burden; and 
then on Crown to disprove the defence beyond a reasonable doubt. 
• Basis:  Common Law (imported through c. 8(3)) 
 
 
 
 
 
27
Offences to which it does not apply 
De minimis is not applicable to certain crimes: 
o Sexual assault cases (by implication since if implied consent is not 
available, then de minimis might be barred as well: Ewanchuk) 
o Domestic assault cases (generally): R. v. Stewart 
o Mischief causing damage to property: R. v. Clarke 
o Theft: R. v. Li 
o Possession of drugs: R. v. Quigley 
Test 
Requirements discussed in R. v. Matsuba: 
1) Must be an act that was actually tolerated by the community and not negatived 
by the person whose interest was infringed 
2) The harm that the relevant law sought to prevent was not caused or threatened 
by the act.  
3) The act was committed under extenuating circumstances outside of the 
intention of Parliament  
- AND, from Judge Russell in R. v. G(T): 
4) Ask have all other defences been exhausted? 
5) Ask are the consequences of conviction severe? 
 
Cases 
R. v. Lepage 
 
Facts: When fire inspector asked accused to comply with fire regulations, he became 
belligerent and pushed or brushed up against the fire inspectors out of the way to leave 
the room. Accused was charged with assault and argued de minimis as defence 
Æ accused did not intentionally apply force to inspectors 
 
Held: No evidence to indicate that application of force was intentional or wrongful 
Æ as accused’s conduct was so trifling in nature, principle of de minimis applies 
 
R. v. Matsuba  
• male teacher touched female student’s leg to see if she’d shaved 
• Held: Crown did NOT establish the Def intentionally touched the victim beyond a reasonable 
doubt Æ not convinced the application of force r/q was met  
o even if Crown had proven case Æ would have held that de minimis applied  
o de minimis was available b/c Crown and defence agreed it was NOT sexual assault 
 
R. v. Stewart  
• Def allegedly pushed the complainant (whom he cohabited with) after Def had been 
drinking Æ prevented her from using downstairs phone to call police 
 
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• Held: an assault beyond the de minimis  
• Ratio: need to think of the context of the case and who the parties are BUT not an 
appropriate level to any assumed consent to violence in a domestic relationship 
 
Mistake of Fact 
• CL defence (imported through s. 8(3)) 
• Vitiates Mens Rea=full defence=acquittal 
• Onus: Evidentiary (“air of reality”) on Accused and then to Crown to disprove 
defence. 
 
CL Authority: 
o Wakil: Subjective perspective of accused re: facts is what counts 
o Pappajohn:  
 Majority: defence must have an “air of reality” b/f can be put to the jury; 
accused may not rely on mistaken belief in consent where he is asserting 
consent and complainant is asserting non-consent (consent defence not 
mistaken belief in consent) – only knowledge of NO consent is enough to 
negate the defence 
 
 Mistaken belief must be honest but does NOT have to be reasonable 
(subjective perspective of particular accused) (S. 273.2(b) alters this). 
o Ewanchuk: consent may not be implied; accused must honestly (not reasonably) 
believe that complainant communicated consent (passivity, silence or ambiguous 
conduct does NOT amount to consent)  
 
• Test: an honest belief in a set of facts that if true would exonerate the accused  Subjective 
examination of state of mind of accused. 
• This ‘subjective belief’ is subject to objective riders that have been imposed by the 
legislature (see below: Statutory Limitations). 
 
 
1. Air of Reality?  
• This is a question of law: evidentiary burden on accused that must be met in 
order for defence to be put to jury 
• In Park, L’Heureux-Dubé J.outlined relevant considerations for air of reality: 
o (1) Whether the totality of the evidence for the accused is capable of 
amounting to the defence of honest but mistaken belief in consent: 
 What was the complainant’s actual communicative behaviour 
 Totality of the evidence explaining how the accused perceived that 
behaviour to communicate consent 
o (2) Whether the totality of the evidence for the accused is logically 
inconsistent with the totality of the evidence that is not in dispute 
 
 
 
 
29
• Even if the accounts are diametrically opposed, there will be an air of reality if it 
is possible to cobble together a narrative that is supported by some evidence – 
beyond accused’s mere assertion – that is not inconsistent with uncontroverted or 
totality of the evidence (Park) 
• At this stage should not weigh evidence or assess credibility (Cinous/Ewanchuck) 
• APPLICATION: Air of reality has been found on basis that complainant had no 
memory of what happened, no counter-narrative, and that on the accused’s 
version of events there was no force or violence (Esau, see also Osvath, R.B.; but 
see Cornejo, Malcolm) 
 
2. Statutory Limitations (objective riders) 
 
I.  MISTAKEN BELIEF IN CONSENT: S.273.2: Belief in consent not a defence to 
charges under s.271, 272, or 273 when: 
 
A. Accused’s belief arose from the accused’s: 
i. Self-induced intoxication, or 
ii. Recklessness or willful blindness (codified Sansregret); or 
 
B. The accused did not take reasonable steps, in the circumstances known to the 
accused at the time, to ascertain that the complainant was consenting 
- Whether the accused took reasonable steps is a question of fact 
- The accused bears a tactical burden at this stage 
- 
If this is met, the Crown must then disprove reasonable steps beyond a reasonable 
doubt 
 
   II. MISTAKEN BELIEF IN AGE: S. 150.1(4) Mistaken belief in age is NOT a defence 
to sexual assault of child under 14 unless accused took all reasonable steps to ascertain 
child’s age. 
 
3. Evidence of Past Sexual History 
• 
if it is not relevant to any of the issues at trial Æ accused can NOT try to Q victim as 
to this at trial 
• 
if history is relevant to mistaken belief as to consent Æ argument from accused is 
they need evidence for that reason 
 
R. v. Seaboyer 
 
• Def charged with sexual assault – at prelim inquiry the judge refused to allow Def to 
cross-examine victim on her previous sexual conduct (they were friends) 
• 
issue: constitutionality of ss.276, 277 of CC (the “rape shield” provisions) 
 
30
• ratio: s.277 does NOT offender Charter but s.276 rendered inadmissible evidence 
which could be essential to presentation of legitimate defence and fair trial Æ struck 
down  
• s.277 excludes evidence of sexual reputation for purpose of challenging/supporting 
credibility of victim – no link b/w sexual history and credibility Æ any evidence 
excluded by s.277 could serve no legitimate purpose in trial 
• s.276 was blanket exclusion subject to three exceptions:  
i. 
rebuttal 
ii. evidence going to identity 
iii. evidence relating to consent to sexual activity on same occasion as trial 
incident 
o prevents too much evidence that may be helpful to accused’s fair trial (evidence 
going toward honest and mistaken belief defence) – this evidence may be 
admissible in no-sexual assault cases under similar facts rule Æ unfair to deny 
evidence just b/c sex assault 
• dissent (L’HD): argues that victim should be afforded protection of law as per s.15 
• women don’t report rapes b/c of fear, reprisal of continuation of trauma at hands 
of police, loss of self-esteem, blame, perceptions of stereotypes and biases of what 
a rape victim should look like and fear that if they don’t the Def won’t be 
prosecuted 
 
CURRENT SITUATON 
a) CL: Courts balance probative v. prejudicial value. 
• Possible admissible evidence: that having probative value on issue at trial and that 
value is not substantially outweighed by danger of unfair prejudice flowing from 
evidence: 
o specific instances of sexual conduct tending to prove person other than accused 
caused physical consequence of rape alleged 
o evid of sexual conduct tending to prove bias or motive to fabricate on part of 
victim 
o evidence of prior sexual conduct known to Def at time of act tending to prove 
the accused believed the victim was consenting to act (proximity in time) 
o prior sexual conduct that meets r/q for reception of similar act evidence 
 
b) S. 266 still exists Æ cant use past sexual history to attack credibility. 
 
R. v. Osolin  
• victim went with two men to a third’s trailer where all drank Æ she had sex with one 
then he left and Def came in Æ went to bar where owner told them she was easy and 
they could have sex with her (while they were gone she had sex with 2nd guy) Æ 
Osolin came in and tried to rape her Æ took her to his car, tied and raped her, shaved 
pubic hair and drove her 40 km and dumped her naked on side of road 
• Def tried to cross examine on her psychiatric records (to show consent) and support 
mistake of fact 
• Held: allowed to cross on records for credibility and mistake defence 
 
 
31
R. v. Ewanchuk 
 An accused who, due to willful blindness or recklessness, believes 
that a complainant … in fact consented to the sexual activity at 
issue is precluded from relying on a defence of honest but 
mistaken belief in (s.273) 
Æ Therefore, an accused must do something reasonable to 
determine whether she consented to rely upon the defence 
 
Mistake of Law 
General Principle: Mistake of Law is No Defence 
s. 19 of the Criminal Code [Code]: “ignorance of the law… is not an excuse”  
Codifies common law principle that everyone is presumed to know the law and that a 
mistake of law (as opposed to a mistake of fact) is not a defence to any offence. 
¾ R v. Campbell 
• Could play a mitigating role at sentencing (R. v. Campbell) 
Applications of General Principles 
• R v. Aryeh (1972) (CA): accused referred to customs act, importing jewellery- no 
defence to unlawful importation 
• R. v. MacIntyre (1983) (ON CA): reliance on an erroneous judgement of an 
inferior court did not constitute a reasonable excuse for the failure to provide a 
breath sample 
• R. v. Potter (1978): importing punchboards, defence unavailable even after 
inquiring with a customs official 
 
R. v. Campbell et al. [1973] Alta Dist Ct – p.287 
• strict application of s.19: mistake of law = NO defence 
• s.132(2) outlawed public nudity b/c morally wrong Æ Def learned from her boss that courts 
allowed stripping Æ but then higher court outlawed it again (higher court overturned R. v. 
Johnson) and she was charged 
• ratio: mistake of law defence unavailable even where accused’s conduct was not necessarily 
illegal according to judicial authority at the time of the commission of the offence 
• was wrong to rely on lower court interpretation of criminal law b/c only SCC has authority to 
discover the law 
• 
it’s a mistake of law to conclude that the decision of any particular judge correctly states the 
law, unless that judge speaks on behalf of the court of ultimate appeal 
ignorance of law is very narrowly interpreted 
 
Note: MOL could play a mitigating role at sentencing. Campbell received an absolute discharge. 
 
32
Exceptions to the General Principle 
1. Mistake going to Mens Rea Element of the Offence 
o for certain offences the mens rea element has been interpreted as r/q that 
the accused know the conduct is illegal (eg knowingly, without colour of 
right) but not offences that use phrase “without reasonable justification or 
excuse”  
o R. v. Howson [1966] Ont CA: tow truck operator argued against theft – 
thought he had positive duty to take and hold car until towing charges 
paid 
o R. v. Docherty [1989]: argued successfully that he did not breach 
probation order that r/q ‘wilfully refusing or failing to conform’ with 
probation order Æ he did not know that sitting in a car, drunk, was an 
offence Æ mistake of law negated the mens rea 
o R. v. Jorgensen [1995] SCC: absence of any knowledge that accused had 
knowledge that films in Q involved exploitation of sex so mens rea not 
satisfied – s.163 r/q “knowingly 
BURDEN=Crown to prove that they had the mens rea beyond a reasonable doubt. 
 
2. Officially Induced Error: 
o where accused relied on legal interpretation given by someone else in 
authority charged with administration of the law but NOT a lawyer 
(Campbell et all and R. v. Dunn)  
o Conditions for Establishing Officially Induced Error (R. v. Roberston)  
i. must have sought advice from official who administered law in Q 
ii. must have used reasonable care in giving the official the info 
iii. official’s advice and accused’s reliance thereon must have been 
reasonable 
o R. v. Maclean (1974) NS: accused acquitted – had ascertained his conduct 
was lawful through inquiries made to Registrar of Motor vehicles and own 
employer 
o R. v. Bauman (1994) Ont: acquitted – sought advice from planner with 
municipality of North York to open office in his home 
o R.  v. Johnson and Wilson (1987) NB Prov Ct: illegal fishing case Æ if 
you’re going to argue “officially induced error” you can only use it once 
BURDEN=On the Accused on a BOP(Cancoil Thermal Corp) 
ÆMay raise a s. 11(d) issue. Successful challenges= See R. v. MacLean, R. v. Dubeau, R. 
v. Forster. 
 
 
 
3. Impossibility 
o when it is physically impossible for the accused to ascertain the state of the 
law – eg unpublished in Canadian Gazette (R. v. Catholique) 
 
33
o exception does NOT include a situation where it is impossible to define the 
law b/c its in a state of flux (R. v. Campbell) or b/c its difficult to keep up 
with newly promulgated regulations (R. v. Molis)  
o R. v Unger et al: schedule of drugs had been changed but accused in process 
of mfr at the time Æ held liable b/c law was published in the Gazette 
 
4. Police Officers and s. 25(2) 
o By a generous interpretation of s. 25(2) of the Code, if the police believe 
(in good faith) but in error that they are entitled to use a particular type of 
force, they may use mistake of law as a defence: R v. Devereaux (1996) 
Color of Right 
• Statutory Exception to Mistake of Law 
• Sections=429(2) provides color of rights as a defence to sections 430-446 
AND s. 41(1) defence of property. 
• Note, since C of R is not defined, we must be guided by common law as 
to the meaning of the term. 
• Most common definition= an honest belief in a state of facts  which, if it 
existed, would be a legal justification or excuse (R. v. Johnson). 
 
o R. v. Watson [1999] Nfld CA – p.308 
 
envt’l activist outside 200 mile limit threw acid in water near Cuban ship Æ 
damage nets or catch destroyed Æ 3 counts of mischief 
 
framed COR argument: he did not think he would be charged b/c was outside 
200 mile limit (but there’s provision that if you’re outside limit and do 
something that would be an offence in Canadian law – can be charged) 
 
ratio: colour of right is an honest mistake of facts of law NOT an ignorance of 
law 
 
attempted to argue colour of right in a larger sense outside mischief  
o R. v. DeMarco (1973) Ont CA 
 
tow truck driver thought he had right to take the truck Æ accused of theft  
 held: defence of colour of right was successful 
 
ratio: any error in law is sufficient to ground defence of colour or right – does 
not need to be confined to ownership of property; it may be a mere belief that 
the conduct was lawful 
 
AVAILABLE WHERE: 
a) Any offence in section 430-446 (as stated in s. 429(2) 
b) Defence of Property s. 41(1) 
c) Any sections of the code that specifically contain the words “w/o color of 
right” Æ s. 72(2) and 322(theft) 
 
 
BURDEN OF PROOF: 
 
34
• Still uncertain. Language of s. 429(2) is “proves” suggesting a reverse onus. This 
would be an 11(d) violation so some courts have read it down to only be an 
evidentiary burden. 
o R. v. Stevenson suggests evidence will be weighted on a balance of 
probabilities whether there was an honest belief;  
o R. v. Watson suggests crown bears burden of establishing the absence of 
the defence. 
Section 492(2) 
TEST FOR s. 429(2): Characteristics of Colour of Right (Watson) 
1. The defence is based on the honest belief of the accused that at the time the offence 
was committed, he/she had a colour of right; 
2. The test is a subjective one; 
• The CRT must not assume that a reasonable belief has to be founded on 
Canadian law standards ex. aboriginal must be allowed to express their 
understanding of land property on their own terms (R. v. Ashini et al.) 
3. While the belief does not have to be a reasonable one, the reasonableness of the belief 
is a factor for consideration by the jury in determining if there is an honest belief (R. 
v. Ninos and Walker); 
4. It is not sufficient that the accused had a moral belief in a colour of right. See  R. v. 
Drainville where CRT found defence cannot succeed on moral conviction alone.  
o R. v. Stevenson et al (1987) Man QB – p.291 
 
unlawfully committed mischief by wilfully damaging bridge owned by province 
hat they thought was part of reserve property 
 held: obvious that bridge NOT owned by banned Æ had transferred property to 
province Æ defence fails 
 
evidence weighted on balance of probabilities 
 
issue: whether or nt the court believes that the Band actually believed they 
owned the bridge – this is not a mistake of fact but a Q of property ownership (a 
Q of law)  
o R. v. Ashani et al [1989] Nfld Prov Ct – p.303 :  
 
land was not divested by any treaty and none of the Innu people gave up their 
rights to land  
 Def walks past checkpoint to NATO base to protest Æ trespassing 
 
argue colour or right b/c to them it is their land and have right to be there 
 
ratio: had a belief of ownership on an honest belief on reasonable grounds 
 
judge got inside head of Def and sees them as credible – result influenced by 
particular judge (Abo) 
o R. v. Drainville (1991) Ont Ct Prov Div – p.304 
 
a priest knew the law but tried to rely on colour of right at roadblock to protest 
Teme-Augama (at a minimum he believed a dispute as to who owned land) 
 
based on lower court decision saying land belonged to province Æ he should 
have known what the facts were (compare to R. v. Campbell who said cannot 
rely on lower court decisions – mistake of law) 
 
ratio:  colour of right defence cannot succeed on moral conviction alone 
 
35
Section 41(1) 
R. v. Born With a Tooth-- exception with respect to needing colour of right expressly 
defined in offence 
4 elements of the defence under s. 41(1):  
1. accused has to be in possession of the land; 
2. the possession is peaceable; 
3. the victim of the assault must be a trespasser; 
4. the force used to eject the trespasser must be reasonable (objective test)  
 
o R. v. NC [1997] Ont Prov Ct – p.306 
 
native man being beaten up by police at protest Æ Def got bus and drove it 
toward police to save his friend Æ intentional actions with intent to rescue 
 held: evidence seems reasonable and is accepted 
 
force was NOT excessive – no lesser amount could have been effective or 
reasonable in the defence of others 
o R. v. George (2000) Ont CA – p.307 
 
convicted of criminal negligence in operation of motor vehicle and assault with 
weapon (car) for driving it at police – he said for purpose of helping individual 
being assaulted by police 
 held: defence rejected partly b/c of credibility and judge disbelieved motivation 
 
distinguished from R. v. NC  b/c disbelieved the motives for taking car – did not 
believe it was for “necessity” 
Incapacity 
• The defence of incapacity is used to argue that the accused did not have the 
capacity to form the mens rea element of an offence.  
• Capacity is also used to determine whether an accused is fit to stand trial or 
instruct counsel.  
A. Age 
 
a) Is the youth under 12 years of age at the time of the offense? YES = no criminal 
responsibility (s.13 of Code) 
b) Between 12 and 18 at the time of the offense? YES = YCJAdeals with these youth 
for federal offenses.  
 
i. Was the offence a Presumptive offence? (murder, attempted murder, 
manslaughter, aggravated sexual assault or serious violent offences for which an adult 
is liable to imprisonment of more than two years and the accused has already received 
at least two judicial determinations at different proceedings that he or she has 
committed a serious violent offence) – then an adult sentence can be imposed  
• s.64 – The Attorney general must apply to subject the accused to an adult 
sentence based on the commission of a serious violent or presumptive offence. 
• s. 63 – the accused can apply to be subjected to a youth sentence 
• s. 72 – The court considers seriousness and circumstances of an offence 
including the age, maturity, character, criminal record and background of the 
 
36
accused to determine whether a youth sentence is enough to hold them 
accountable for the offence. 
 
ii. If the accused is 14 years or older (unless the province legislates a higher 
minimum of age of not more than 16 years) an adult sentence can also be 
imposed. 
 
 Youth sentences have a three year maximum for custody and 
supervision (2 years custody) for presumptive offences.  
 Second degree murder maximum sentences is 7 years total (4 in 
custody) 
 First degree murder ten years total (6 in custody) 
 
 
B. Fitness to Stand Trial 
• S. 672 
• Finding of unfit results in a hold on trial until fitness is recovered, 
 
A. Standard for fitness to stand trial defined as a limited cognitive capacity. The test 
for analytic capacity was rejected (R. v. Taylor) The accused does not have to be able to 
act in their own best interests when communicating with counsel to be deemed “fit”. 
Confirmed in R. v. Bain. 
• A finding that the accused is not fit to stand trial should not be made in the absence of 
any basis to put the accused on trial. (R. v. Taylor). The trial judge should require the 
Crown to demonstrate that it is in a position to establish that the accused 
committed the alleged acts. An accused found unfit may or may not be detained (ss. 
672.45-63) and may be tried on the charges once fit. (s. 672.33). 
 
B. TWO STAGE TEST to determine Fitness: (R. v. Brown 1993) 
1. Crown should call sufficient evidence to satisfy the trier of fact that there is 
sufficient evidence to proceed with trial. 
2. Only after this is satisfied will fitness hearing take place in which both sides can 
use expert (doctor’s evidence), testimony of the accused or any other evidence. 
 
• Counsel for the accused has an obligation to raise the issue of fitness with the court. 
(R. v. Brigham) 
• ss. 672.11& 672.12 – a court with jurisdiction over an accused may order an 
assessment of an accused’s mental condition where it has reasonable grounds to 
believe such evidence is required to determine whether the accused is fit to stand trial. 
• ss. 672.22- 33 – framework for unfitness determinations: The issue can be raised at 
any point in the proceedings including prior to the determination for interim release 
• s. 675.25(2) – gives the court discretion to postpone the trial of the issue of fitness 
until the close of the case for the prosecution at the preliminary inquiry. 
  
 
37
C. NCRMD 
• S. 16 
• Vititates the Mens Rea 
 
 
Test  
1.  Accused must have suffered from a mental disorder  
 
• defined in s.2 of the Code as a “disease of the mind” 
• 
 interpreted as a question of mixed fact and law 
• 
 Judge determines whether the question amounts in law to a disease of the mind 
and the trier of fact determines whether the accused experienced the condition. 
 
2.  The disorder must have prevented the accused from appreciating the nature and 
quality of the act or knowing it was wrong 
• 
the ability to understand the offence means to appreciate that the act is legally and 
morally wrong (R v. Olah 1997) 
• disorder must deprive accused of ability to rationally connect right and wrong 
with the choice to commit or not commit the act (R v. Oomen 1994) 
• an accused who refuses to accept counsel’s advice to advance MD defence may 
do so on appeal where it can be determined that the accused’s untreated medical 
condition prevented counsel from adducing the evidence at trial (R v. I.E.M. 
2003) 
 
Burden of Proof  
• BOP is on the party that raises the issue  (proven on balance of probabilities) 
• reverse onus saved by s.1 of Charter (R v. Chaulk 1990) 
• Crown can only raise defence where accused raises evidence of mental 
impairment that the judge finds puts accused’s mental capacity at issue (R v. 
Swain 1991); otherwise Crown must wait until the jury brings in guilty verdict 
before raising MD   
• If MD put at issue by accused in trial itself, defence or Crown can raise defence, 
then the jury is only told to consider the s.16 defence after they are satisfied the 
accused committed the actus reus but before determining whether the accused 
met the mens rea of the offence (R v. David 2002) 
 
Results 
• New provisions (Part XX.1 of the Code) include mandatory review board 
hearings which consider: 
 a)  public protections,  
b)  accused’s mental condition,  
c)  the reintegration of the accused into society  
 
38
d)  the other needs of the accused 
• Dispositions available under s.672.54.  
absoulte discharge 
-conditional discharge 
-custodial or hospitalized 
-conditions that do not include non-consensual treatments 
• Must pick the disposition that is least onerus and restrictive to the accused 
• 
if cannot conclude the person is a threat = absolute discharge 
• 
if significant threat = conditional discharge OR detained in custody 
• New provisions (Part XX.1 of the Code) upheld in R v. Winko found not to 
violate Charter’s s.7 & s.15  
• where the mental disorder test cannot be proven, the accused can still have 
evidence reviewed by jury in order to avoid 1st degree murder conviction (ie not 
planned and deliberate), but there is no right to have judge go over the evidence 
once more (R  v. Jacquard 1997) 
 
 
Intoxication 
 
Specific Intent 
- Code or CL define mental element as specifically focused on producing a particular 
consequence; extreme intoxication could impair the accused’s capacity to undertake a 
course of action that will result in a particular outcome 
- look for ulterior motive associated w/ offence 
- examples:  
i) 
murder (req proof of intent to cause death of victim, Swietlinski) 
ii) 
theft (req proof of intent to deprive another of their property, George) 
iii) 
touching a child for a sexual purpose (Bone) 
iv) 
uttering a threat to cause death (Bone) 
v) 
using violence to overcome a victim’s resistance (J.A.R.) 
vi) 
assault to resist arrest (ulterior motive is to resist arrest) 
 
General Intent 
- offences that have as their mental element the intent to commit the immediate act, w/o 
intent to produce specific consequences Æ mental element is so minimal that only basic 
voluntariness is required, only extreme intoxication can be used as defence 
- examples:  
i) 
manslaughter (required intent is to perform act that causes death or bodily 
harm, Swietlinski) 
ii) 
assault causing bodily harm (requires proof of intent to assault, without regard 
to intending bodily harm, George) 
iii) 
sexual assault (Leary, Bernard) 
 
 
39
Intoxication Generally 
• Intoxication defence refers to self-induced intoxication; avail when accused has 
abused alcohol, drugs, or combination (Curtis) Æ available for specific intent 
offences, but not general intent  
- Exception: Extreme intoxication akin to automatism is available 
as a defence to general intent offences, as accused is incapable of 
forming the requisite minimum intent (Daviault) where the offence 
is not one that interferes with the bodily integrity of another person 
(Section 33.1). 
 
Intoxication (Partial Defence) 
• Onus: accused bears evidentiary burden, Crown bears burden of disproving beyond a 
reasonable doubt 
• Successful defence= the accused would still be convicted of the lesser included 
offence 
• Available for: SPECIFIC INTENT OFFENCES ONLY 
 
Extreme Intoxication 
• Onus: On the accused on the BOP (violation but saved by s. 1 as per Chaulk) 
• Successful Defence= full acquittal 
• Available for: General Intent offences (only where you can show extreme 
intoxication akin to Automatism as per Daviault) that do not interfere with the bodily 
integrity of another person (s. 33.1). 
 
ESTABLISHING DAVIAULT DEFENCE: 
 
Step 1: TWO PART TEST (Daviault) 
a) Accused must present enough evidence to judge to prove that  intoxication was an 
issue, ie: evidence of more than moderate consumption of alcohol and “expert” testimony 
re: effects of consumption  
 
b) expert evidence should show that the amount of alcohol consumed by the accused was 
enough for him to experience a black-out, where the individual loses contact w/ reality 
and the brain disassociates from normal functioning and the person is not aware of his 
actions and will likely have no memory of them the next day.   
 
 
Step 2: if such evidence is produced, the defence of intoxication can be presented to trier 
of fact 
 
Step 3: then, jury is instructed that intoxication must be so severe that the capacity to 
form the intent required was eliminated (Lemky, Robinson, McMaster, Seymour) 
 
 
40
Charter Challenges to s. 33.1 
 All courts that have examined constitutionality of s.33.1 have held that it violates 
ss.7 and 11(d) because it eliminates mens rea and actus reus in situations of 
extreme intoxication by simply substituting a new fault element. 
 Courts are split about whether it can be saved by s.1: 
o Cannot be saved by s.1 – R. v. Brenton (1999), R. v. Lee (1997), R. v. Dunn 
[1999], R. v. Jensen [2000] 
o Can be saved by s.1 – R. v. Vickberg [1998], R. v. Decaire [1999], R. v. 
B.J.T. [2000] 
 
Automatism 
• State of impaired consciousness in which an individual, though capable of action, has 
no voluntary control over that action (Stone) 
• CL defence or negates the voluntariness requirement of the AR 
• Evidentiary burden on the accused to show automatism and then Reverse Onus on the 
accused (BOP) to show he acted involuntarily. 
• MD=s. 16 defence and non MD=full acquittal. 
 
• R. v. Rabey (1997) SCC – p.338 
o young man’s rejection by woman he was interested in is one of the “ordinary 
stresses and disappointments of life which are the common lot for mankind”  
o held: Def psychologically frail b/c reasonable person would not have 
experienced dissociation 
o ratio: ordinary stresses of everyday life are NOT a “psychological blow”  
• R. v. Parks [1992] SCC – p.338 
o Def drove across TO in middle of night and killed mother-in-law and attempted 
to kill father-in-law then drove himself to police station Æ had been experiencing 
personal and financial difficulties and borrowed $ from in-laws but had “good 
relationship” with them 
o sleepwalking when all this occurred (apparently)  
o held: allowed to use defence of sane automatism Æ acquitted of all charges 
o mental disorder is distinguishable from automatism based on the “continuing 
danger test”  
 
General Test Applicable to all Cases Involving Automatism 
(Stone). 
Step 1: Establish a Proper Foundation for a defence of Automatism 
• Equivalent to satisfying the evidentiary burden for this defence 
• Question of mixed law and fact 
• Accused must satisfy the trial judge that there is evidence on which a properly 
instructed jury could find that the accused acted involuntarily on a balance of 
probabilities. 
 
• Nature of the evidence required: 
 
41
 
1) 
Accused must make an assertion of involuntariness at the time of the 
offence, but mere assertion alone will not suffice 
2) 
Expert psychiatric or psychological evidence is required 
      Æ simply producing expert evidence does not satisfy the evidentiary burden. 
Æ  the trial judge must determine the weight to be given to expert testimony when 
deciding if the evidentiary burden has been met. 
Æthe trial judge must keep in mind that expert testimony is entirely dependent upon 
the accuracy and truthfulness of the account of the accused. 
3) 
Other relevant evidence to consider: 
i) nature of the trigger: will usually have to be a trigger equivalent to a “shock” to 
satisfy evidentiary burden. 
ii) corroborating documented medical history of automatistic-like dissociative states 
      iii) corroborating evidence of a bystander testifying that the accused appeared glassy-       
eyed, unresponsive or distant immediately before, during, or after the act 
iv) motive: if a single person is both the trigger and the victim the claim should be 
considered suspect; whereas if the act is random and lacks motive then the claim will 
be increased. 
 
***If accused has satisfied the evidentiary burdenÆmove to Step 2. 
***If accused has not, neither automatism defence is available, but accused may still 
claim an independent s. 16 defence of NCR. 
Step 2: Determining Whether to Leave MD or Non-MD Automatism 
with the Trier of Fact 
• The assessment of which form of automatism should be left with the trier of fact 
comes down to the question of whether or not the condition alleged by the 
accused is a mental disorder 
Æ Question of Mixed Fact and Law 
ÆMental Disorder is a legal term and is defined as a “disease of the mind” 
Æ JUDICIAL NOTICE taken of the fact that it will only be in rare cases that 
automatism isn’t caused by a MD (Stone). TJ must start from the proposition that the 
condition suffered is a ‘disease of the mind’, and then determine whether the evidence 
of the particular case takes the condition out of this category. 
 
• ‘Holistic Approach’ (Three-Factored Approach) 
 
1. Internal Cause Theory (Rabey) 
• Trial judge must consider the nature of the trigger and determine whether 
a normal person in the same circumstances might have reacted by 
entering an automatistic state as the accused claims to have done. 
If yes: External cause, favors a determination of Non-MD Automatism 
If no: Internal cause, favors a determination of MD Automatism. 
• Contextual Objective Test: The accused’s autonomic reaction must be 
assessed from the perspective of a similarly situated individual. Requires 
that the circumstances of the case be taken into account 
 
42
• Distinction drawn between stressful situations and extremely shocking 
events. Involuntariness caused by something less than a shocking trigger is 
considered an internal factor and thus constitutes a disease of the mind. 
• This approach will not be useful in all cases, but is a factor for TJ’s to 
consider if they think it useful. It will likely be most useful in cases of 
psychological blow automatism. 
 
2. Continuing Danger Theory (Parks) 
• Trial judge must consider whether the condition is likely to present a 
recurring danger to the public. 
If yes: Favors a determination of MD Automatism (disease of the mind) 
If no: Favors a determination of Non-MD Automatism. 
• While a continuing danger suggests a disease of the mind, a finding of no 
continuing danger does not preclude a finding of MD automatism. 
• Two issues particularly relevant in assessing likelihood of the recurrence 
of violence 
a) Psychiatric evidence of the accused (if there is a documented history 
suggests the condition is of a recurring nature and thus automatism will 
recur) 
b) Likelihood that the trigger alleged to have caused the episode will recur Æ 
increases likelihood that the condition is a disease of the mind. 
 
3. Other Policy Factors 
• Feignability of the defence and  
• Bringing the administration of justice into disrepute 
• Not a closed categoryÆ court may consider any valid policy concern. 
 
Note: The three factors in the ‘holistic test’ are not determinative tests. Stone 
indicates that each factor may be more or less useful depending on the 
circumstances of the specific case.   
Possible Outcomes: 
1. If accused satisfies the evidentiary burden and the cause is found to be a 
disease of the mindÆ MD automatism is put to the trier of fact and the case will 
proceed as any other s. 16 case, with the defence having to prove on a balance of 
probabilities that the accused suffered from a MD rendering him incapable of 
appreciating the nature or quality of the act (this finding absorbs the question of 
whether the accused acted voluntarily, the fact to be proven in a Non-MD 
defence) 
If the accused satisfies the evidentiary burden and the cause is not found to be a 
disease of the mind Æ Non-MD is put to the trier of fact and if the trier of fact finds that 
the accused proved on a balance of probabilities that he acted involuntarily then the 
accused is fully acquitted 
 
 
 
 
43
 
 
 
Provocation 
• Set out in s. 232 of the CC 
• Partial defence (only reduces Murder to Maslaughter) 
• Burden is on the accused to raise the evidentiary burden and then on the 
Crown to disprove beyond a reasonable doubt. 
• MODIFIED OBJECTIVE TEST (survived constitutional challenge in 
Cameron) 
• Can also be used to mitigate against sentence (Stone) 
 
 
ELEMENTS OF THE OFFENCE 
- Section 232 of the Criminal Code instructs that a provoked act must contain: 
1) a wrongful act or insult capable of depriving an ordinary person of self-control 
2) a resulting loss of self control on the part of the accused 
3) action “on the sudden” by the accused 
 
Provocation Test (Hill) 
 
STEP 1 
Was there a wrongful act or insult that would cause an ordinary person to be deprived of 
self-control by the act or insult? 
 
• “Reasonable person” test: a person having the power of self-control to be 
expected of an ordinary person of the sex (Hill) and age (Camplin) of the 
accused, but also sharing the characteristics that would affect the gravity of the 
provocation. 
• NOTE: TJ need not tell jury of each specific attribute of accused; jury will use 
common sense in factual determination of the objective test; such instruction is 
helpful but not mandatory (Hill). 
• The characteristics to be attributed to the ordinary person will depend on the 
relevance of the particular features of the provocation in question (Ly). 
• Race will be a relevant factor when provoked by a racial slur. 
• 
Jury must consider the wrongful act/insult in light of the past relationship 
between the deceased and the accused (Thibert). However the general breakup 
of a marriage due to an extramarital affair cannot be considered a provocation 
(Young and Thibert). 
• “Homosexual advances” were recognized as possible wrongful act or insult 
-see R v. Camplin; R v. Hill - but see R v. Ryznar;, R v. Hansford; R v. 
Tomlinson for opposite conclusion by trial judges 
 
 
44
Note: McLachlin added in Parent that a further relevant consideration is whether 
the wrongful act was sudden or unexpected  
• Dissent in Thibert: Where there is knowledge of the circumstances of a spouse’s 
new relationship, it cannot be asserted that the defendant was unprepared for a 
meeting with the new partner 
 
 
STEP 2 
Was the accused in fact provoked to respond to the wrongful act/insult? 
• Question of fact to be determined by evidence; subjective test. 
• 
Jury must consider the psychological temperament and mental state of the 
accused at this stage (Hill) 
• Cultural considerations can be taken into account at this point (Ly). 
• 
Jury can also consider past history of the relationship at this point (Thibert) 
 
STEP 3 
Did the accused react to the provocation “on the sudden” and before there was time for 
the accused’s passions to cool? 
• Question of fact to be determined by evidence; subjective test. 
• Taunting of the defendant by the deceased who was preventing him from 
privately talking to his wife was considered as a provocation “on the sudden” in 
Thibert. 
• The argument and the act of choking were considered too distant in the course 
of events to provoke the defendant “on the sudden” in Malott. 
• Evidence of pre-meditation will suggest not on the sudden. In Mallot she had a 
loaded gun in her purse so failed this test. However, note that Thibert also had a 
gun in his truck and was successful with the defence. 
 
Note: Mallot indicates that the past history of abuse will not be considered due to the 
“on the sudden” requirement (only applicable to self-defence) However, dissent in Mallot 
(Abella) said judge should have explained past history of abuse so the jury could take 
into context how this would have informed her perceptions. Several UK cases (Thornton 
and Humphreys) show an acceptance of taking into consideration domestic violence in 
the provocation context. 
 
Charter Issues? 
Femicide  
Section 15 issues around use of provocation defence related to proprietary interest in 
spouse;  cultural defence and its impact on racialized women; increase of women being 
killed  
• R v. Ly (1987) BCCA – p.380 
o 
tried to argue that cultural history was important – Vietnamese man living with a 
woman who was having an affair on him Æ Def felt he had “lost face” in the 
community  
 
45
o held: only take culture into account if a racial comment, etc directed at the accused  
o 
take into account how Def is situated in respect to deceased 
o will take gender into account (always look at how reasonable man would respond in 
circumstances of infidelity) 
o should only take this into account when determining if the accused “acted on the 
sudden” – assessment of what was in Def mind at the time 
• R. v. Thibert [1996] SCC – p.383 
o Def was separated from wife but he wanted to keep meeting her – ended up at her 
office and her new lover taunted him Æ shot lover 
o majority: provocation should be available b/c something a “reasonable person” could 
have been provoked by 
o minority: problem with what is allowed to be wrongful act/insult – if people just 
expressing themselves how can you argue provocation?  
o central issue – factual Q if ordinary person would lose self-control or get so angry as to 
kill someone 
o another issue: was there actually a “wrongful act” to open door for this defence? 
o CA would have dismissed appeal – said subjective part did not meet air of reality – 
difficult to argue not knowing what you were doing but showed up with a gun 
o SCC: provocation should be left to the jury 
• R. v. Malott (1996) Ont CA – p.393 
o wife charged with murder of husband and attempted murder of girlfriend Æ she could 
not report to police b/c husband a drug informant (physically and mentally abusive) 
o he made her take him to pick up drugs (she took meds before he arrived) Æ medical 
centre closed and she was worried he was going to kill her so she shot him then took 
cab to trailer and attempted to kill girlfriend 
o held: convicted of murder – provocation NOT available 
o said history is NOT relevant to provocation (but would be to self-defence) 
o she recognized a “gleam in his eye” that reasonable person may not haven noticed 
 
Homosexual advances  
Section 15 issues – real implications for lives and safety of members of LGBTQ 
community 
 
• R. v. Hill: conflicting stories about whether or not they were gay lovers 
o majority figures the jury will automatically ascribe some facts to accused anyway so 
even though it’s up to judges discretion it may not matter 
• R. v. Camplin: often raised b/c of unwanted sexual advances by gays – what would a woman 
do if an unwanted advance had been made against her?  
• outrageousness or the way it seems to go against the norm (taken as a given) that allows a 
provocation defence against homosexual advance 
• allows a more read acceptance as provocation as defence against gay bashing 
• Hansford: stabbed taxi driver b/c he suspected homosexual advance after Def had already 
been subject of advance by man earlier in the night (also heavily intoxicated) 
o combo of intoxication, earlier events, mistake of fact, etc Æ operating on Def mind 
 
Residual defence of rage 
• Earlier cases suggest possibility that accused had no mens rea for murder b/c they 
were in a state of rage – see R v. Listes; R v. Wade; R v. Stewart; R v. Klassen