EVIDENCE & PROOF

Two golden threads of evidence & proof in the criminal law: Presumption of innocence (s.11(d) Charter) & Proof beyond a reasonable doubt (“BRD”) (Woolmington)

o Crown must prove BRD: Elements of the offence (AR/MR) & absence of defence

Three standards of proof (Lichfus)o Beyond a Reasonable Doubt (Less than absolute certainty; more than probably)

Closer to absolute proof than BoP (Starr)o Balance of Probabilities (More likely than not; used in reverse onus)o Some Evidence/Air of Reality (Filter for the jury)

Air of Reality required for putting defence, then onus shifts to Crown to prove BRD the absence of that defence.

ACTUS REUS

Always have doctrines of vagueness & overbreadth in mind (principles of fundamental justice). Cannot be prosecuted for conduct retroactively.

Core constituent element: voluntariness of an act or omission of a legal duty that causes prescribed harm or occurs in prohibited circumstances

CONTEMPERANEITY & VOLUNTARINESS

Contemperaneity: Requires AR/MR to concur at some point (usually not an issue).o AR can complete before MR occurs (Williams HIV attempted aggravated assault)o Flexible in how to apply concurrency (at some point; not necessary to concur for

entire transaction (Meli)).o When presented w/ tricky facts, don’t slice/dice, treat as a continuous transaction.

Fagan: initial assault has no mens rea; “get off my foot” and doesn’t, but at this point no act. Court uses “common sense” approach to treat it all as one act. Miller says this runs afoul of creating a common law offence.

Voluntariness: Fundamental principle; recognized as part of s.7 of Charter (Daviault).o Means physical voluntariness, but recent jurisprudence includes moral

voluntariness (e.g. through duress (Ruzic)). No voluntariness if spasm in epileptic fit; reflex action (swarmed by bees);

trip & fall; sleep walking; omission when act not physically possible; etc.o Cannot be made criminally responsible for an act or omission unless it was done

or omitted in circumstances where there was some other course open to him: he must be responsible for the physical ingredient of the offence (Kilbride)

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OMISSIONS (NOT DOING SOMETHING)

Failure to act/imposing a legal duty to act. (Common law duties; run afoul of s.9?)o No general duty to be a good Samaritan, but certain relationships have legal

duties: Relationships of dependency (s.215) Duty to provide necessities of life:

Children under 16 (parent is obligated) Spouse or common law party A person under their charge if that person cannot provide for

themselves due to age, illness, mental disorder. NOT a defence that someone else provided necessities w/ no duty

When an undertaking is taken on (s.216) Includes someone who is donating blood and knows they are

infected w/ AIDS, have a duty to not donate (Thornton) “Undertaking” must be interpreted as sufficiently high to justify

serious penal consequences w/ clear, binding intent (Browne)o In Browne promise to take to hospital was insufficient

(taxi)

Dangerous objects, performing risky acts (reasonable care req’d) (s.217) s.217(1): “Everyone who undertakes or has the authority to direct

how another does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person or any other person arising from that work”

o Duty to disclose HIV Status (Cuerrier): about consent, not a common law duty. Seen as fraud rather than negligence/nuisance and thus vitiates consent;

maybe not in cases where no risk of bodily harm (Mabior)

Failing to act in these circumstances gives rise to:o Common nuisance (s.180(2)) (must be directed at public generally rather than

specific people (Thornton))o Criminal Negligence causing death/bodily harm (s.220/221): Everyone is

criminally negligent who (a) in doing anything, or (b) in omitting to do anything that is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

Legal duties can arise either by statute or common law (Coyne, Popin)o No reliance on Criminal Code, why? (Nixon officer in charge of lockup)o Arguably runs afoul of s.9 of the Criminal Code (no common law offences)

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STATUS OFFENCES

Criminalizing a "state of being" rather than some positive act/omission.o "Vagrancy" used to be an offence (being homeless) until Hewood (1994)o None really in the code; likely violates s.7 Charter if involuntary. Parliament

recently decided to word "participating in" a terrorist organization rather than "being in" a terrorist organization. Ask: is there a difference?

PRESCRIBED CIRCUMSTANCES

Prohibited to drive "while impaired". Driving is conduct; while impaired is the prohibited circumstance. Often complex e.g. without consent.

CONSEQUENCES & CAUSATION

Factual Causation: logical link between the conduct & consequences. “But for” the act…o Winning: No evidence of store relying on false information.o White: Tried to poison mother; died from independent heart attack. But for

poisoning, still would have died. Might still be attempted murder.

Legal Causation: How much did the act lead to the outcome?o Murder: Must be a significant contributing cause to the death, but not necessarily

the sole cause of death (Smithers/Nette)o 1st degree murder: Must be an essential, substantial and integral part of the killing

(Harbottle). This is a higher threshold than the Smithers test. May go beyond s.231(5) – argument to be made for narrow construct.

Narrower construct argument: argue Smithers, then Harbottle.

All causation is subject to 3 remoteness doctrines:o Thin Skull Rule: Take victim as you find them; does not negate legal causation

E.g. Malfunctioning epiglottis (Smithers)

o Remoteness: Consequences that are too remote cannot be legal causation. E.g. victim stabbed; dies in ambulance accident en route to hospital

o Intervening Causes: Breaks chain of causation; not if dependable/foreseeable. The subsequent act or event so strong or overwhelming that the accused’s

contributing act is now an insignificant contributing cause Police firing bullets is not an intervening cause if victim used as a human

shield (Pagett). Can use analytical aids: reasonably foreseeable/independent act (Maybin).

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Criminal Code Provisions relating to Homicide (Causation and Mens Rea)s.222 Anyone who “causes the death” of a human being commits homicide (only culpable is an

offence: murder, manslaughter, or infanticide, death by unlawful act, criminal negligence, threatening causing death, wilfully frightening a child or sick person causing death)

s.224 Even if death from the cause could have been prevented by resorting to proper means, if the cause results in death they caused the death (applies to all homicides)

s.225 Causing bodily injury that is of a dangerous nature and death results, causes the death notwithstanding that the immediate cause is proper or improper treatment that is applied in good faith

Kitching and Adams, even if the doctors are the operative cause of deaths.226 Causing bodily harm resulting in death even if the effect of the injury was to accelerate

his death from a disease or disorder, causes the deaths.228 NO cause if the death was caused by influence of the mind alone (unless wilfully

frightening a child or sick person)s.229 Culpable homicide: murder, manslaughter, infanticide -s.222(4)

(a)(i): intentionally causing death(a)(ii): means to cause bodily harm knowing it is likely to cause death and is reckless as to whether death ensues or not

Penal Negligence Provisions

s.249 Dangerous driving causing death(“Dangerous” or “Careless” = Marked departure from the actions or foreseeability of a reasonable person)

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MENS REA

First look to wording. Is it subjective or objective Mens Rea or no fault?o Look at Ferguson handout. If statute silent, satisfied by subjective MR

(Buzzanga).o If it is a stigma offence, it must be subjective (murder, attempted murder, theft,

crimes against humanity) - should there be more/less stigma offences? Subjective Mens Rea:

o "Intention": Direct intent:

Does an act w/ intent of bringing about the prescribed harm (Buzz) Indirect intent:

Intent of bringing about something other than the prescribed harm, but knows/foresees that prescribed harm is certain or substantially certain to occur. Requires fairly high certainty (Buzzanga).

o "Recklessness": Knows or foresees that the prescribed harm will possibly or probably

occur, but not certain it will occur. May not have desire to have it occur. Subjective state of mind sees the conduct may bring about the prescribed harm, but nevertheless takes about [doing the act] (Buzzanga)

o "Willful Blindness": Different from recklessness in that the person has become aware of a risk,

but would prefer to remain ignorant to the risk. Can be described as fault in failing to inquire when he knows there is a reason to inquire (Sansregret)

Usually in relation to commercial crime. Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge? (Jordanson)

If accused knew someone was party to an offence and assists that person, is guilty of accessory after the fact (Duong)

Subjective standard, being dumb doesn't make you WB (Curry)

o General tips: Can still use reasonable person argument to buttress arguments. Subjective MR must be established in regards to "the facts constituting the

offence" (SS Marie) MR must be proven in relation to all elements of the offence (Papa John);

this is known as the "Rule of Symmetry" (Creighton) Mental element only attaches to the underlying offence, not aggravating

circumstances for predicate offences (De Sussa)

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Exception to the rule of symmetry A sane & sober person is assumed to intend the natural and probable

consequences of their actions ("Common sense inference": inferring subjective MR from objective) (Tennant,Nacaro) - Not determinative (Buz)

Objective Mens Rea:o Penal Negligence: Shows wanton and reckless disregards for the lives of others.

No individual factors taken into account; but test takes into consideration the context of events surrounding the incident (Tutton).

Lamer in dissent would take into account individual characteristics.

Creighton, Naglec, Gosset, Beattie, Hundal all follow Tutton.

o Criminal Negligence: Marked and substantial deviation from reasonable person standard that shows wanton and reckless disregard for the lives of others (doesn't capture accidents). Higher standard

o Strict Liability (Regulatory) Offences: No fault required, Crown must only prove actus reus, then burden shifts to accused to prove reasonable care/due dilligence.

o General: Controversy in law about whether to use objective/subjective/hybrid. Argue it is arbitrary, discompassionate, represents a person that is fictional

and not reflective of the diversity in our society. Argue that subjective standard dilutes, changes the standard, potentially

immunizing from prosecution particular types of offences/offenders. Tutton: Crim negligence causing death, undecided whether to

apply subjective test or modified objective test in the context of the facts existing at the time and the accused's perception of those facts.

No Fault Offences (Absolute Liability Offences/Regulatory Offence):o Actus reus alone. No defence available. E.g. parking meter. Offence must match

level of deprivation; cannot be imprisonment (Motor Vehicle Reference).

If there is no language: (SS Marie)o True Crimes assumed to be full subjective MR (Buzzanga)

Rebutted when language, purpose, context & scheme of the offence suggest parliament intended an objective standard (ADH)

Types of crimes that fit in this category: Offences that include the word “dangerous”; “careless”; predicate offences; criminal negligence; duty based offences (s.215 of the code)

Stigma offences must be subjective MR (theft, murder, attempted murder, crime against humanity)

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o Regulatory offences (SS Marie) If words of mental fault, presumed to be strict liability (SS Marie). If parliament wants it to be absolute liability, must do so expressly by

saying "this is absolute liability" OR deny defence of due diligence. Can't be absolute if incarceration attached (s.7 Charter)

Look at overall regulatory pattern, subject matter of legislation, importance of the penalty and the precision of language used.

DEFENCES

MISTAKE & IGNORANCE OF THE LAW

Ignorance of the law is not a defence (s.19 Code). Arguably produces unfair results.o Due diligence of ascertaining the law is no defence (Molis)o Belief that the code does not apply to you is not a defence (Jones – FN Bingo)

Mistake as to facts IS a defence, including mixed mistake of law/fact (s.8 Code).o E.g. Bigamy “married to another person”o Ignorance of a regulatory offence not published in the Gazette is excused.

Mistake as to Civil Law (confused jurisprudence in chronological order)o Prue: mistake as to whether one’s license is suspended under provincial Motor

Vehicle Act is mistake of fact when the suspension is essential to the CC offence.o MacDougall: Mistake as to civil law NOT a defence if the offence is provincial.o Molis: Was producing a drug that subsequently became restricted under Federal

Act. Due diligence is not used in relation to ascertainment of existence of a prohibition or its interpretation.

o Hammerbeck: Prue applied to a CC offence of taking a child contrary to a custody order when parent mistakenly believed of no legal effect. This was a defence because the mistake was as to civil law.

o Pontes: Obiter says above approaches irreconcilable; suggests Prue is wrong. SCC held that mistake as to status of drivers licence is not a defence when charged under the Motor Vehicles Act (provincial).

Defence of Officialy Induced Error ***o Where an official induces an error on your part, you have a mistaken belief as to

your legal rights as you relied on a representation of an official that is illegal.o Applies to both regulatory & criminal offences; burden on accused on a BoP.

Question of law; success results in stay of proceedings, NOT acquittal.o 6 elements required (out of Jorgenson, adopted in Levis):

1. Must be established that an error of law or mixed law/fact was made;2. Person who committed illegal act considered legal consequences of action;3. Advice obtained from the appropriate official;

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4. The advice itself was reasonable;5. The advice was wrong/erroneous;6. Accused reasonably relied on the advice (can be active advice or silence).

o Factors taken into account: Attempt to obtain info; obscurity of the law; position of authority; clarity/reasonableness of the advice itse4lf; objective perspective.

o Criticisms: Should have acquittal, not stay of proceedings. Burden should not be on accused if it is true crime as opposed to

regulatory offence (arguably runs afoul of s.11(d) Charter). S.7- Poligamy.

INTOXICATION

Challenges the MR of criminal responsibility; accused must discharge burden.o Not available when accused becomes intoxicated intentionally for the purpose of

committing the criminal act or if it is part of the AR (e.g. impaired driving).

Arose out of DPP v. Beard (1920, HoL) Rules:1. Did drugs/alcohol produce a “disease of the mind”? If yes, consider NCRMD.

(excludes mental states brought about exclusively by voluntary intoxication. Ask yourself “was this just drugs, or something more?” incl. addiction (Capozzi))

Psychiatric literature says extreme drunkenness does not create a “disease of the mind” that Daviault claimed. Crown succeeded in Dow arguing this.

2. Evidence which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

The question isn’t whether they could, but whether they did form intent. Jury instructions: whether the crown has satisfied BRD that accused had

the requisite intent (Robinson)

3. Simply being drunk short of a proved incapacity to form intent does not rebut the presumption that a man intends the natural consequences of his acts.

General intent or specific intent? Intoxication moves from specific intent → general.o Crown must prove BRD accused had actual specific intent.

If can’t, likely still convicted of lesser, including general intent offence.o If general intent, guilty of that offence subject to Daviault.

Can the accused prove on a BoP the lack of a general intent by reason of extreme intoxication? (high threshold; more than amnesia required).

If yes, not guilty of general intent so long as not violating bodily integrity and self-induced as per s.33.1 of the Code .

o Subject to Charter challenge (guilt by proxy as per Cory J.)

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Substitutes the MR to drink with the MR for assault because of guilt by proxy.

Unevenly applied across the provinces; imports a negligence type of standard.

o Argument that a new offence of criminal intoxication would be better than s.33.1. (dissent in Daviault)

Other notes:o Evidence of intoxication at time of the offence? Can you prove it? Claims of

intoxication are easier said than proven. How credible will your client be if they are claiming they were intoxicated?

NOT CRIMINALLY RESPONSIBLE: MENTAL DISORDER

Fundamental principle that accused is allowed to be present at trial. If accused is not mentally fit because of a mental disorder, postponed until accused is fit to stand trial.

o Defined (s.2): Unable to instruct or communicate with counsel, unable to understand the nature of the proceedings or possible consequences.

Limited capacity is insufficient. Not necessary that the accused is capable of making rational/beneficial decisions or able to analytically reason. So long as they can understand the proceedings and communicate (Whittle).

Arguably potentially causes wrongful convictions.o People assumed to be fit unless rebutted on a balance of probabilities (s.672.22)o Critical time is the time of proceeding, not the time of offence.

Where there are reasonable grounds to believe the accused is unfit at any point prior to verdict, judge shall order that the issue of fitness be tried (s.672.23(1)).

If accused self-represented, court will appoint counsel (s.672.24). Counsel might want to try fitness after preliminary hearing in order to

establish that the Crown has a prima facie case against the accused.o Fitness tried by judge pre-trial, judge & jury at trial (surprising jury is involved).o The judge may order expert evidence to understand the accused’s mental capacity

(s.672.11-19).

o If accused found unfit, 3 options for court order:1. Detained in custody in a psychiatric hospital;2. Discharged into the community, subject to conditions;3. Mandatory treatment for up to 60 days if there are medical reasons that the

accused can become fit within that time frame (s.672.56-62). Note we have Charter right to decline medical treatment. Power of

criminal law to compel accused to medical treatment. Issue: the serious side effects of some drugs used to treat mental disorders.

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o If found unfit, reviewable every 6 (hospital) or 12 months (community) if not improving. After 2 years court must hold inquiry about whether there is sufficient evidence at that time to put the accused on trial. If not, accused is acquitted (s.672.33).

If crown determines accused won’t become fit, may stay the charge.

S.16 of the Code sets out the test for NCRMD:1. No person is criminally responsible for an act committed or an omission made while

suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act/omission or of knowing that it was wrong.

o Mental disorder is a disease of the mind = term of art, finding of law.2. Every person is presumed not to suffer from a mental disorder until the contrary is

proved on a balance of probabilities.3. The burden of proof lies on the party raising the issue.

Swain: Review of evidence of insanity against accused’s wishes. Violated s.7.o Court constructs new rules:

Insanity defence can be raised by the accused during the trial; Prosecutor has the same right, but only if in the trial judge’s opinion, the

accused has put his mental capacity at issue. (Dissent says unconstitutional as not minimally impairing – infringes right to raise own defence)

Either party is able to bring forward a s.16 application after the trier of fact has found guilt and before sentence is entered.

o Reverse onus of pt 2 of s.16 found infringes s.11(d), justified under s.1 in Chaulk.

Substantive aspects: Accused has a mental disorder (“disease of the mind”) and as a result is incapable of appreciating the nature and quality of the act (Cooper) OR incapable of knowing it was wrong (Chaulk).

o Trier of law is the ultimate decision maker and relies on expert evidence. Stare Decisis is not determinative; immune from the application of precedent.

o Medical evidence changes over time and most recent info must be considered. Cooper: Disease of the mind embraces any disease or disorder that impairs

the human mind or its functioning, excluding self-induced states caused by alcohol or drugs, or transitory mental states such as hysteria or concussion.

Exclusions based on policy considerations: Self-induced = intoxication and transitory = automatism (Cooper).

Confirmed in Bouchard that voluntary consumption of a drug is not a disease of the mind, BUT LeBel J. says might have been different if there was evidence of substance addiction.

What does “appreciate” mean?o Cooper: Emotional and intellectual awareness of the impact and consequences of

the physical act. NARROWED subsequently:

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o Abbey: Only relates to the physical consequences of the act or omission. Takes out emotional part (e.g. psychopathy). Accused need not appreciate the penal consequences of the act/omission. Confirmed in Landry.

What does “wrong” mean?o Chaulk: morally wrong according to the objective standards of society, not the

accused themselves, in the circumstances and not just legally wrong. (Dickson dissent)

o Oommen: Accused must lack the capacity to rationally decide whether the act is right or wrong and hence make a rational choice about whether to do it or not.

Accused believed he was acting in self-defence, but not rational.

Criticism: Does not speak to volitional impairment, the ability to control behavior or compulsion or irresistible impulse. Moral foundation on view of folks being rational/auto.

o NCRMD defences sometimes result in worse outcomes for your client. Can lead to consequences that are less certain and more prejudicial. Generally reserved for:

Serious charges resulting in a lengthy sentence Transitory mental disorder likely to resolve in a short period of time Where the therapeutic potential is considerable and in client’s best interest

Even then, often clients don’t want the defence because they do not self-identify as persons in need of treatment. Consider paranoia.

o May still run the evidence to get general intent offence (intoxication) i/o NCRMD.

Issues with drug users:o Difficult if not impossible to determine whether an episode is caused by mental

disorder or substance use (possibly many in cocktail-fashion) or both.o Bouchard-LeBrun in obiter says apply holistic test applied in Stone:

Internal cause theory: compares accused with a “normal person” and determine whether “normal person in the same circumstances” would have reacted similarly to how the accused did.

Continuing danger theory: assessment of likelihood of reoccurring danger. Policy concerns

Result of successful NCRMD defence: NCRMD accused person (not acquittal or stay).o OLD laws: Detain, release on conditions or discharge absolutely.o Found constitutional in Winko:

Regime did not result in automatic indefinite detention. Regime balanced fair treatment with the need for public safety. The hearing itself required the least onerous/restrictive condition after

considering the need for public safety & fairness to the accused. Scheme required review of the orders every 12 months. Did not require compulsory treatment; NCRMD could decline treatment.

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o New regime (arising out of public safety or public opinion?) Opposed by scholars in psychiatric & legal community. Requires that individual prove significant harm or threat to public safety

that justifies form of detention or condition: New definition: a risk of serious physical or psychological harm

including any victim or witness or person under 18 even if not violent (concerns that this is a lower threshold)

Changes wording from least onerous to “necessary & appropriate”; “Appropriate”: public safety is paramount above everything else.

Also increased involvement of victim & responsibility to notify victims. If there was serious personal injury and likelihood that it may happen

again, or act was brutal, determined as “high risk” designation. “High risk” requires detention. Can only be permitted to leave

hospital for medical reasons, with escort. 12 month review period extended to 36 months for high risk in

certain conditions, e.g. if condition not likely to improve.o Constitutionality needs to be tested given McLachlin’s statements in Winko.

AUTOMATISM

Unconscious, involuntary action. Capable of action, but not conscious. E.g. Sleep walko Common law defence under s.8 of the Code (Stone).o Language preferred: “impaired consciousness” not “unconscious” (Stone)

Have no control over their act and thus cannot be liable (no voluntariness).

The accused is presumed to act voluntarily and has the burden to rebut on a BoP (Stone)o Only accused brings forward evidence; e.g: expert psychiatric/psychological

evidence. Need more than that though; insufficient if based on accused’s version of events alone without supporting evidence.

Fontaine: No difference in evidentiary burden of automatism compared to any other defence; must show some evidence to each part of the defence.

Dispositions available for this defence:o Automatism arising as a form of mental disorder

Diverted to s.16 and goes through psychiatric system.o Extreme intoxication akin to automatism (e.g. Daviault )

Subject to s.33.1; may convict of general intent offence. Run intoxication.o Non-mental disorder automatism

Extraordinary remedy of straight-up acquittal (best scenario possible) Conditions recognized as non-insane automatism:

Concussion Sleep walking (Parks), though found to be MD in Luedecke Unexpectedly falling asleep while driving (insomnia) (Jiang) Symptoms of stroke, Epileptic fits, Hypoglycemia

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Extraordinary psychological blow (Rabey) BELOW:

Extraordinary psychological blow (Stone test holistic approach; long outline for history):o Assumption that automatism arises as a result of mental disorder (Stone). Accused

must rebut the presumption with the following test:

o Internal cause theory: contextual objective test from Rabey: an analytical tool to strike a balance between providing exemptions and protecting the public (Parks)

o Continuing danger theory: any condition that is likely to present a danger to the public should be treated as a disease of the mind (Parks)

o Policy concerns: potential fabrication of evidence; public disillusionment by outright acquittal; consideration of subsequent monitoring and control of accused; needs to be evidence of an extremely out-of-ordinary psychological trigger)

Limits non-MD automatism to extremely shocking trigger (not just stressful or difficult) and amnesia alone is not enough (Stone, Parks). ↓↓↓

Look to severity of trigger, corroborating evidence by bystanders/medical history, presence/absence of motive, relation between trigger and victim.

No single factor is determinative and non-exhaustive list. How do we want to deal with this population? Prison or

psychiatry? Dissent: this makes automatism as defence nearly impossible.

Graveline takes contextual approach to trigger event in the context of an abusive relationship. Indicates non-MD automatism may not be dead; it is open to a jury to interpret.

PROVOCATION

Only a defence to murder (s.232(1)). Requires:o A wrongful act or insult that would “deprive an ordinary person of the power of

self-control.” (Objective branch)o The accused must be acting in response to the act or insult on the sudden before

there is time for passion to cool. (Subjective branch) Requires evidence on an air of reality basis.

Rationale: intended to be compassionate; somebody who momentarily loses self-control and acts out of anger/passion is somehow less blameworthy.

o Seen in part to stem from male violence. Should be abolished in the view that it accepts and promotes male violence usually against women and gay men.

o Provocation recognizes anger as a partial excuse – privileges anger over compassion, love and other less harmful emotions.

o Provocation involves victim blaming; shifts focus to wrongful conduct of victim.o Accepts male patterns of violence to lash out at women.

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o Has been recognized as problematic, but not abolished.o Argument in favour: objective element should avoid a spectacle of violent/ill-

tempered people to be treated less harshly. Objective element should be taken to weigh in the human frailties against the need to protect society (Thibert)

Defence only applies if there was a wrongful act or insult (s.232(3)):o Insult is broadly defined (Thibert)o Act is not provocation if victim was exercising a legal right

E.g. ex-wife seeking a new relationship (Tran)o OR if the accused incited the victim in order to give the accused an excuse.

Objective branch:o Whether the ordinary person would have lost the power of self-control under the

provocative circumstances Ordinary person must be same age/sex and such other factors that would

give the insult in question special significance (e.g. race). Background factors should be considered (Cory J. in Thibert) *** true?.

Homosexual panic will never provide a provocation defence (Rothgard). The test must be contextualized, but not individualized (Tran).

Subjective branch:o If passion has cooled, this part isn’t satisfied. Requires suddenness.o Background and history relevant to determine suddenness (Thibert)o Suddenness: strikes upon a mind unprepared for it and takes the understanding by

surprise (Tran). Different from calculated vengeance. In that case, accused strongly suspected wife was having affair; not

sudden. Same deal if had heard same insulting comment before (Popov).

Cultural factors line of cases:o Values of ordinary person must be consistent with Canadian values (Humaid).o Ly: Accused strangles wife for being unfaithful. Said that in Vietnamese culture

being cheated is incredibly humiliating/shaming. CA says not relevant.o Nahar: Culture is relevant to assess the gravity of an act or insult, not self-control.o Humaid: OCA questions relevance of culture to reasonable person test. Trial

judge held ordinary person should be same age, sex, background, but not having the same religion or customs.

Reducing Mens Rea as an argument:o Typically provocation can only reduce murder to manslaughter.o If want to use as a defence, need expert evidence to buttress the argument.

McLachlin says it`s not likely to work in Parent.

SELF-DEFENCE

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S.34(1): A person is not guilty of an offence if:o They believe on reasonable grounds that force is being used against them or

another person or that a threat of force is being made against them or another person;

o The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force;

o The act committed is reasonable in the circumstances.

S.34(2): In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

o The nature of the force or threat;o The extent to which the use of force was imminent and whether there were other

means available to respond to the potential use of force;o The person’s role in the incident;o Whether any party to the incident used or threatened to use a weapon;o The size, age, gender and physical capabilities of the parties to the incident;o The nature, duration and history of any relationship between the parties to the

incident, including any prior use or threat of force and the nature of that force or threat;

Any history of interaction or communication between the parties;o The nature and proportionality of the person’s response to the use or threat of

force;o Whether the act committed was in response to a use or threat of force that the

person knew was lawful.

S.34(3): Defence not available if defending from somebody who is required or authorized by law to do in the administration or enforcement of the law, unless the person on reasonable grounds believes them to not be acting lawfully.

Notes: Does not distinguish between provoked and unprovoked or intent to cause grievous bodily harm or not.

o Expansion: language of “offence”; may apply to offences other than assault committed to defend/protect (e.g. theft, stealing a car to escape an attack, B&E).

o Unstructured discretion in determining what is reasonable under s.34(2).o S.26 still applies: excess force will support the attribution of criminal

responsibility for any acts of excess force on the part of the accused.

Suspected importation of subjective & objective standards from old law:o The accused must have subjectively perceived unlawful assault and their

subjective perception must be reasonable (Petel).

Reasonable person factors:

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o Intoxication: Cannot rely on intoxication as a factor in arguing beliefs were reasonable

in the context of their intoxicated state. Can still rely if reasonable without being intoxicated. Reasonable person is sober (Reilly). Issues w/ addiction?

o Mental Impairment: Diminished intelligence should be taken into account (Nelson); Battered spouse has different objective standard (Lavalee); Syndromes like Asperger’s should be considered (Kagan); There is space in the test for mistaken belief: objective response based on

accused’s mistaken perception so long as it is reasonable (Cynous)

Pre-emptive strikes:o If somebody subjectively believes they will be killed, is it reasonable? (Cynous)o Imminence is a factor only; maybe acceptable to preemptive in prison

(McConnell)o Possibility of retreat is a factor to whether the accused believed on reasonable

grounds they could not otherwise preserve themselves (Malott, Druken)

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SELF DEFENCE IN CONTEXT OF DOMESTIC VIOLENCE

Statistics on domestic violence are politically charged & potentially misleadingo Don’t assume anything based off statistics. Remember s.11(d) Charter!

How should we respond when a victim kills her abuser? Self Defence? Lavalee:o Facts: Ms. Lavalee was 22 years old and shot her partner in the back of the head

as he was walking away. She had been subject to multiple physical assaults over a 3-4 year period by him. They had a party, fought, she hid, he found her, slapped her several times and said “if you don’t kill me first, then I’ll kill you.” He then gave her a loaded handgun and taunted her.

o Acquitted at trial because of expert evidence on battered woman syndrome. SCC says expert evidence on the psychology of abuse is helpful for juries

who are not expected to have significant experience in order to determine whether the accused’s belief was reasonable that she would die.

The issue is not what an outsider would reasonably perceive, but what a person in the accused’s situation would reasonably perceive.

Accepted as reasonable in these circumstances.

o Critiques of Lavalee (addressed in Malott): Keeps the sense that it’s unusual for battered women to stay; By focusing on battered woman syndrome deflects attention away from

the real problem of male initiated violence in intimate partner relationships;

Idea that battered woman is weak, helpless, passive may not assist those battered women who do not meet these criteria;

Failure to recognize social factors like income, housing, child care.o Post Lavalee Liberal gov’t initiated review of cases of battered women in prisons.

Petel:o Contextual approach must be used to determine reasonableness including history,

circumstances and perception. Still has an objective factor.

Malott:o Jury must be informed of the principles from Lavalee and expert evidence used to

debunk myths about: why the abused stayed and did not retreat; debunk myths/stereotypes/misconceptions about why women stay in these relationships; the violence that existed in the relationship and how that affected the accused (can be proved by accused, don’t need expert); whether the accused believed on reasonable grounds that she could not preserve herself.

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Take lessons from the history with battered spouse syndrome and analogize to other situations (e.g. inmates) – must be contextualization and consider their situation on a subjective/objective basis.

DURESS

Principal offender/Secondary party (s.21-22): Person is a party to an offence if they commit it or aid/encourage/counsel/procure/incite someone else to do it.

o Different law applies depending on if you’re dealing with principal or secondary.

S.17 of Code (Clear but stringent):o Is the primary party (“commits an offence under compulsion”)(Paquette);

Secondary parties can rely on common law defence (probably wrong, but has persisted): Common law has no exceptions for barred offences.

o Under threat of death or bodily harm;o Threatening person is present when offence is committed;

Struck down in Rusek. Fixed in Ryan.o Accused believes the threat will be carried out;o Is not a party to a conspiracy or association (e.g. gang or mob);o Not available for high treason, treason, murder, piracy, attempted murder, sexual

assault (and/or w/ a weapon), threats to a 3rd party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson, or abduction and detention of young persons.

Ryan (blends common law & s.17): **THIS IS THE CURRENT LAW**o S.17 still only applies to primary offenders: they have to use it.o Not available in a Ryan-like fact pattern (feared death by spouse, hired a hitman).o Statutory elements adopted (4 elements)

1. Only available when another person orders/pressures/compels them to do the illegal act under threat of death/grievous bodily harm (or to a 3rd party).

2. Accused must believe the threat will be carried out;3. Offence must not be on list of excluded offences (subject to Charter):

If you believe they are morally involuntary, is it constitutional to deny the defence to some offences? Lower courts have gone both ways on this. Should the Court adopt exclusions in the application of the common law defence? Also an open question.

4. Accused cannot be a party to conspiracy or criminal association that compelled them.

o Common law (3 elements): 1. Must be evidence of no safe avenue of escape (modified objective

standard: reasonable person similarly situated)2. Must be a close temporal connection (holistically with above, same test)

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3. Harm cannot be greater than the harm avoided; also modified objective. Accused is expected to show some fortitude and put up normal resistance.

Elements of the common law defence (post-Ryan):o Must be an explicit or impilicit threat of death or bodily harm directed at accused

or 3rd party; o Accused must reasonably believe threat will be carried out;o Plus 3 elements from above.

Differences: no exclusions; no restriction on criminal association. Criminal association restriction expected to mirror statutory

defence. Question of whether exclusions will be denied from s.17 or if they

will be read-in to the common law defence.o Applies to Secondary offenders, not principal.

Implications for Mens Rea:o Duress is not the same as intoxication: it is possible in some circumstances duress

could negate mens rea, but generally the individual who acts pursuant to threats has full MR despite not wanting to do it; duress is recognition of an excuse.

This is a lawful excuse, not a negation of MR (Hibbert)o Possible implications for battered spouses since judges have a hard time

understanding the lack of reasonable alternatives; as a result immanency and presence are experienced in a different way.

Still needs to be argued post-Ryan if a spouse convinces the battered spouse to commit an offence (look to Lavalee)

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