Criminal Law

R. v. Gee
It can NEVER be reasonable to kill a person in defense of property; however, this rule does not preclude a person whose house is being broken into from claiming self-defense under CC34 or 37.

R. v. Spencer (1977) BCSC
Can a tenant in a dwelling house be said to be in peaceable possession of the common hallway of the building?  No.  The landlord did not grant possession of the common hallway to his tenant.  Therefore, the hallway was not in the possession or control of the tenant under CC41.

ENTRAPMENT (Part of the Abuse of Process Doctrine)

Entrapment occurs is the state offers a person an opportunity to commit a crime without reason for suspecting criminality of the person being pursued or while not engaged in a bona fide inquiry in a high crime area.  It involves going beyond providing an opportunity to offend and inducing the commission of an offence.  The remedy is a stay of proceedings, which is not a defense in the traditional sense and has nothing to do with the accused’s culpability.  Police can only offer an opportunity to commit an offence if:

R. v. D’Amato
Affirmed a conviction for narcotics even though the undercover police officer pursued him with threats of violence, etc.  The majority supported the defense of entrapment (which derives from a lack of mens rea) but Estey, in dissent, attempted to define the defense of entrapment based on power to stay the proceedings.  The majority concluded that the defense of entrapment didn’t arise on the evidence.  “In the result, the scheme must be so perpetrated must in all the circumstances be so shocking and outrageous as to bring the administration of justice into disrepute.”

R. v. Mack (1988) SCC
The appellant was charged with unlawful possession of a narcotic for the purpose of trafficking but brought an application for a stay of proceedings on the basis of entrapment.  The accused was invited by an undercover police officer on numerous occasions to re-enter the drug trade but refused each time.  The officer made Implied threats against M’s life and the accused eventually relented.  The onus is on the accused to prove on the civil standard that the state’s actions amounted to entrapment.  Police can’t simply “go out and test the virtue of people on a random basis.”  At the same time, for drug offences they should have leeway. Police condict should be evaluated on an objective standard.  Factors to be considered in determining whether the police have gone beyond providing an opportunity to commit an offence include:
•    The type of crime
•    Would an average (not reasonable) person in the position of the accused have been induced into commission
•    How persistent were the police in pursuing the entrapped person
•    Was there deceit, fraud or trickery
•    Were human characteristics such as emotions exploited
•    Was the person particularly vulnerable, i.e mentally disabled
•    Threats
•    Were constitutional values trampled upon

PROVOCATION (Partial Defense to Murder)

PROPORTIONALITY IS NOT REQUIRED

R. v. Reilly (1984) SCC
The SCC affirmed that CC34.2 requires a reasonable apprehension of death or g.b.h. (actual belief) and a reasonable belief that killing or causing g.b.h. (that belief must be reasonable) to one’s adversary was the only way to avoid harm.

1.    Defense of a person to prevent an assault.

CC37.1    everyone is justified is using force to defend himself or anyone under his protection from assault, if he uses no more force than is necessary to prevent the assault or repetition of it.

CC37.2    this justification does not extend to excessive behavior.  There are no requirements for reasonable apprehension of death or gb.h.

R. v. Whynot (1983) NSCA
Jane Stafford shot her sleeping common-law husband while he was passed out in his truck.  He abused her and threatened on the night he was killed that he would kill her son if she tried to leave him.  CC37 should not have gone to the jury in this case – “no person has a right in anticipation of an assault that may or may not happen to apply force to prevent the imaginary assault.”

R. v. Lavallee (1990) SCC
A battered woman killed her common-law husband late one night by shooting him in the back of the head as he left the room.  This case overruled Whynot by indicating a judicial willingness to consider the accused’s situation and experiences for determining whether there was a reasonable basis for his or her beliefs.  This does not meet that all battered women automatically get an acquittal for murdering their husbands.  The new test is – given the history, circumstances and perception of the appellant, was her belief reasonable? (modified objective standard).  Wilson J surveyed the history of domestic violence and dimissed Whynot as “completely unreasonable.”  Wilson then looks at the theory on “battered woman syndrome” but relies very heavily on the work of one author, which is viewed as a frailty in her judgment by critics (especially considering that the work of the particular author that Wilson relied on is particularly suspect).  A woman doesn’t forfeit her right to self-defense by remaining in an abusive relationship – a home is a woman’s castle too.  In Nelson, the Ont. CA held that an accused’s diminished intelligence should also be taken into account in determining whether self-defense under CC34.2 is available.

R. v. Malott (1998) SCC
The accused was charged with murdering her common-law husband of twenty years.  He abused her.  She shot him.  Then she took a cab to his girlfriend’s place and stabbed and shot her.  She was charged with second degree murder of her husband and attempted murder of his girlfriend, the latter having no air of reality for self-defense.  This case affirmed the need to consider battered woman syndrome.

4.    Self-defense by an aggressor.

CC35    CC35 attempts to restrict self-defense for those accused who, without justification, assault another or provoke an assault by words, blows or gestures.  CC35 is very complex and rigid.  This contradicts the view that a preemptive strike might sometimes be justified and there should never be an absolute duty to retreat.  The aggressor must have declined further conflict and quit or retreated from it as far as it was possible and formed no intent to cause death or g.b.h. before the necessity of self-preservation arose for this defense to apply.

Note: Canada has not recognized a partial defense of excessive self-defense.

DEFENSE OF PROPERTY

This is based on the premise that one’s home is one’s castle.  CC38-42 deals with the defense of property.  Anyone in peaceable possession is to use no more force than necessary to preserve his property, be it real or personal.  People have a lawful right to reclaim their property

How much force can one use?
In Baxter, Martin J commented that necessary force means that the harm sought to be prevented could not be prevented by less violent means and that violence cannot be disproportionate to the injury or harm that it is intended to prevent.

R. v. Taylor (1970) Y.T. Mag. Ct.
T was charged with using a firearm in a manner that was dangerous to the safety of other persons contrary to CC86.b.  T’s house had repeatedly been broken into.  He kept a rifle near his bed to protect against this routine occurrence.  When T’s home was broken into again, he grabbed the gun and told the trespassers to leave.  T’s force was characterized as excessive (more force than was necessary to eject the trespasser); however, the Court didn’t buy this argument, concluding that the test for evaluating the degree of force used must look at the mind of the accused at the time (modified objective test).  There is no need to impose a strict proportionality test in cases of defense of property when it doesn’t apply to cases of self-defense.  Question to be asked: Did the accused use more force than on reasonable grounds he believed to be necessary?

R. v. Paquette (1977) SCC
P participated in a robbery during which a bystander was killed.  P contended that he had no intention to participate in the robbery and was threatened with death “if he squealed” and only participated due to the threat.  In England, duress is no defense to a charge of murder; however, the SCC did not follow this approach.

R. v. Hibbert (1995) SCC
Duress is assessed on a modified objective standard, which takes the frailties of the accused into account.  Lamer CJ says that special circumstances are very relevant to whether conduct was reasonable under the circumstances and thus whether that conduct was excusable.

DEFENSE OF THE PERSON

Canada has a very confusing self-defense regime, the key elements of which are outlined in CC34.  Self-defense is a justification defense.

R. v. Pintar (1996) Ont. CA
When charging a jury on self-defense, the judge should consider:
1.    look at the evidence to determine what CC provisions might realistically be available to the claim
2.    if there is no air of reality, the defense should not be left with the jury

FOUR TYPES OF DEFENSE OF PERSON

1.    Self-defense against an unprovoked assault where there is no intent to kill or do grievous bodily harm. CC34.1
To raise this defense, one must establish that:
a. the facts amount to self-defense
b. the mode of defense used was justifiable in the circumstances.

R. v. Cadwallander (1966) (Sask. QB)
The 14 year-old appellant shot his father 5 times.  Over a two-year period, his father made repeated threats of death.  His grades slipped in school.  The day the father was killed, the son heard him load a gun and say “I’m going to kill that God-damned little bastard.”  The accused shot the father while he scaled the stairs to presumably kill the son.  The appellant pleaded self-defense.  At trial, the Crown agreed with this but claimed the son acted excessively and should be convicted of manslaughter, which he was.  This court allowed the appellant’s appeal.  His conduct was not excessive in the circumstances. The test is whether the accused used more force than he on reasonable grounds believed necessary (modified objective test).  The appellant met this test.  The current trend is to grapple with the precise terms of each CC section.

R. v. Baxter (1975)
Followed Cadwallander in dispensing with the rigid objective test for proportionality.

Definition of Self-defense
There is not clear-cut definition.  Generally, to raise this defense the force used must not be disproportionate to the assault although the defender is not expected to measure the degree of force with nicety.  Very flexible approach.

2.    Self-defense against an assault where the defender intends to and does cause death or grievous bodily harm.  CC34.2

R. v. Bogue (1976) Ont. CA
Appellant was found guilty of manslaughter for killing her boyfriend during a domestic violence dispute.  She had been visibly beaten; however, the boyfriend’s body was found in a defensive position.  The Court drew a distinction between CC34.1 and 34.2
CC34.1      deals with a situation where the accused repels an unprovoked assault, but does not intend the force that he uses the cause death or g.b.h.  This cannot be a defense to murder because intent to cause death is needed for that offence BUT it could be a defense to manslaughter.  A jury should acquit an accused under CC34.1 if they have a reasonable doubt that:
a.    the accused was unlawfully assaulted
b.    the accused did not provoke the assault
c.    the force used by the accused was not intended to cause g.b.h.
d.    the force used by the accused was no more than necessary to enable him to defend himself
PROPORTIONALITY IS REQUIRED
CC34.2    applies where the accused intentionally kills or intentionally causes g.b.h. to is assailant.  This can apply where the accused provoked the assault or was the initial aggressor.  The three elements of self-defense under this section are:
a.    the existence of an unlawful assault
b.    a reasonable apprehension of a risk of g.b.h.
c.    a reasonable belief that one must harm their adversary to preserve oneself.

Excuse concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not be attributed to the actor.  For example, the perpetrator who acts under a disease of the mind and is incapable of understanding the nature and consequences of is acts, or the person who labours under a mistake of fact, etc. are actors of whose criminal actions we disapprove of but whom, in appropriate circumstances, our law will not punish.  There is no vindication for an excuse.

R. v. Dudley and Stephens (1884) Eng. QB
A ship sank and two sailors and a cabin boy survived and stayed in a lifeboat for quite some time without food or water.  The two sailors killed the cabin boy, ate him and were later saved.  They argued that their wrongful act was done out of necessity.  The Court stated that “man has no right to declare temptation as an excuse.”  D and S were sentenced to death but only ended up serving six months.

Perka v. R. (1984) SCC
Drug smugglers facing dangerous waters and a damaged and malfunctioning boat off Canada’s coast.  They were enroute to a dropping point in Alaska with tons of cannabis.  They sought refuge on Canada’s coastline to make repairs and proceed.  The boat hit ground and the captain ordered the cargo to be offloaded.  They were caught and charged by police with importing cannabis into Canada for the purpose of trafficking.  Dickson classifies the defense of necessity as an excuse but outlined three restrictive conditions:
1.    There must be imminent peril or danger.  At a minimum, peril must be so present that normal human instincts cry out for action and make counsel of patience unreasonable
2.    The act must be inevitable, unavoidable and provide no reasonable opportunity for an alternative course of action that does not involve a breach of law (i.e. there can’t be a legal way out the situation).  Perka states that if there is an alternative to disobeying the law then the involuntary act becomes a voluntary one and one may not be able to rely on this defense.
3.    There must be proportionality.  The harm inflicted must be less than the harm sought to be avoided.  A less rigid requirement would mean that the accused could do something worse than the harm sought to be avoided.
This defense obviously applies to illegal conduct.  It is measured by an objective standard – was the necessitous situation clearly foreseeable to a reasonable observer?  If so, the defense does not apply.  Accused need only satisfy the evidential burden, which puts the defense of necessity in issue.

R. v. Latimer (2001) SCC
L murdered his disabled daughter by stuffing her into the family car while it was on and shutting the garage door, thus killing her with the exhaust fumes.  The trial judge refused to allow the defense of necessity (no air of reality), affirming that the three elements from Perka must be in place.  The first two must be assessed using a modified objective standard.  The third must be evaluated objectively – looks a society’s values to determine what represents a transgression.

DURESS

Duress is a statutory defense and only applies to principal offenders.  This defense serves as an excuse to criminal conduct, not a justification.  To qualify for the common law defense of duress (or provocation, necessity or self-defense), the accused must subjectively and honestly perceive the need to respond reasonably to the threats.

Under CC17, compulsion by threats of immediate death or grievous bodily harm is excused if:
a.    if the party believed that the threat would be carried out (subjective)
b.    if the person under duress cannot be part of the act.

R. v. Carker No.2 (1967) SCC
The accused raised the defense of duress to a charge of willfully damaging the plumbing in his prison cell.  He sought to introduce evidence to show that he had committed this offence under the compulsion of threats and was therefore entitled to be excused for committing it by virtue of CC17.  The accused was compelled to do the act under the compulsion of threats of death and grievous bodily harm BUT they were not immediate or continuous threats because the threateners were locked in different cells than the accused.

R. v. Hebert (1989) SCC
This case followed Carker.  A witness did not face the threat of immediate death or bodily harm when giving testimony in court because he could have sought protection against anonymous phone threats.

R. v. Ruzic (2001) SCC
A woman smuggled 2 kilograms of heroine into Canada because a man had threatened to kill her mother back home if she didn’t.  LeBel J. referred to Carker as too narrow because it precludes the use of the defense of duress only because the immediacy requirement is not met, which precludes the use of this defense for threats of future harm.  Targets of the harm may be third parties; however, meeting the immediacy threshold can difficult to meet in these situations.  A narrow interpretation of CC17 breaches s.7 because it allows individuals who acted involuntarily to be declared criminally liable.  The immediacy and presence requirements violate s.7 and are not saved under s.1.

The common law defense of duress is far less restrictive than the statutory defense of duress found in CC17 because the former is available to third parties and is available to all crimes.  The test for the common law defense of duress is the modified objective standard. Canadian courts have imposed a no safe avenue of escape (assessed objectively) limitation for the common law defense of duress.  If a safe avenue of escape exists, the actions cannot be considered involuntary.  In other words, this defense cannot be used if the accused had an opportunity to extricate himself from the situation of duress through legal means.  The rationale for this rule is that in such circumstances the condition of normative involuntariness for the defenses of necessity and duress is absent.  The common law defense of duress applies:
a.    threats to third parties are covered.
b.    If there was no safe avenue of escape available.

SPECIFIC V. GENERAL INTENT

R. v. Leary (1977) SCC
This case exposed a difference between BC and Ontario regarding rape.  In BC rape was a general intent (manslaughter, rape, sexual assault) offence.  In Ontario, it was a specific intent (other specific intent crimes include murder, theft, robbery, aiding and abetting a crime and attempted crimes) offence.  Therefore, intoxication was a grounds for defense in Ontario but not BC.  The SCC found that rape was a crime involving only general intent to which the defense of drunkenness had no application.  Dickson J, in dissent, said that evidence regarding drunkenness should simply be left to the jury regardless of the offence (be it general or specific intent).  This rule in effect treats the deliberate act of becoming intoxicated as culpable in itself.

R. v. Bernard (1988) SCC
The accused was charged with sexual assault causing bodily harm contrary to CC272.c.  The issue was whether evidence of self-induced drunkenness is relevant to the issue of guilt or innocence in an offence of general intent.  The SCC accepted that crimes of sexual assault were properly characterized as general intent.  Therefore, the intoxication defense did not apply.

R. v. George (1960)
There is logic to this distinction.  Even if there were logical weaknesses, they were overcome by policy considerations.  In this case, the accused was acquitted of the specific intent offence of robbery because of intoxication but convicted of the general intent offence of assault because his intoxication was not so extreme as to prevent the Crown from proving the minimal intent required for that general intent offence.

Wilson Compromise
This approach was outlined by Wilson J in Bernard.  It followed that drunkenness could be a defense to any mens rea offence (specific or general) if the intoxication amounted to automatism or extreme intoxication.

R. v. Daviault (1994) SCC
The Charter required Wilson’s approach.  This was a case of extreme intoxication involving a 69 year-old chronic alcoholic who sexually assaulted a partially paralyzed woman.  The accused consumed a lot of booze (a 40 ouncer of brandy and 8 beers).  The accused’s conviction was quashed and a new trial was ordered; however, it was never retried on account of the victim’s death (not available for cross-examination).  The SCC dispensed with the Leary approach because it offended s.7 (failed minimum intrusion and proportionality arms of the test) and 11d.  Cory accepted the Wilson approach on the basis that the defense will only be put forward in rare circumstances (extreme intoxication) and succeed in even more rare circumstances.  If one only had a few drinks, Wilson’s approach would have no application – could still form the mental intent.  Sopinka took the hard line that those who voluntarily become extremely intoxicated deserve to be punished for the acts that flow from this self-induced state.

This case didn’t abolish the distinction between general and specific intent offences and it introduced to distinct intoxication defenses with different burdens of proof.
Specific Intent Offence – When the accused is charged with a specific intent offence, intoxication is always relevant.  One need only raise a reasonable doubt.  The accused could be acquitted of murder but convicted of manslaughter.
General Intent Offence – Intoxication evidence is only relevant in rare cases supported by expert evidence.  The accused must show on a balance of probabilities that he was incapable of forming the intent required for a general intent offence.

Public Reaction to Daviault
Daviault was condemned for sending the wrong message.  Parliament responded by amending the CC so that those with a Daviault defense would be convicted of the same offence of violent general intent as they would have pre-Daviault.  Bill C-72 abolished the Daviault defense and CC33.1 was added, which states that it is not a defense to say one lacked basic intent where there is a marked departure from the standard of reasonable care.  CC33.1 deals primarily with violations of bodily integrity.  This doesn’t effect Leary regarding specific intent offences.  It remains whether CC33.1 will succumb to Charter scrutiny.

DEFENSE OF NECESSITY

In Canada, there is no codified defense of necessity.  This defense comes from the common law pursuant to CC8.3, which states that every common law rule and principle continues in force so long as it is not inconsistent with the CC.  Generally speaking, the defense of necessity covers all cases where non-compliance with law is excused by an emergency or justified by the pursuit of some greater good.  The defense of necessity is an excuse to an involuntary action (no legal way out, compliance with the law is demonstrably impossible) but some say it can also be a justification.  If a choice between legal and illegal activity is available, the wrongful act is not considered involuntary.  An itemized summary is found at the top of p.925 in S&D.  This defense is an excuse, not a justification.

Justifications and Excuses

Justification challenges the wrongfulness of an action, which technically constitutes a crime.  For example, the Good Samaritan is justified in taking the wheel and breaks the speed limit to get an injured person to the hospital.  These actions are considered rightful, not wrongful.  Punishment would be inconsistent with the social approval bestowed on the doer.  Blackstone called the a “choice of evils.”

R. v. Stone (1999) SCC
Accused attacked and killed his wife then fled to Mexico after she made a series of “psychologically sadistic” remarks about his sexual prowess.  The automatic accused does not necessarily have to be acting unconsciously but their unconsciousness must be so impaired that they have no control over their actions.  The issue in this case was how to distinguish between insane and non insane automatism when a psychological blow prompts it.  To satisfy the evidentiary burden for automatism, the defense must make an assertion of involuntariness and then call expert psychological witnesses confirming that assertion.  The trial judge must follow a holistic approach to evaluating defining a disease of the mind, which includes:
1.    Were there factors of internal cause?
2.    Does a continuing danger exist?
3.    Policy considerations
The trial judge is to look at the situation on a case by case basis to determine whether a properly instructed jury could find the accused guilty on a balance of the probabilities.

Types of Automatism:
Issue: Was the accused suffering from a disease of the mind?
1.    Insane Automatism - disease of the mind – held not guilty by reason of mental disorder.  Generally hospitalized.
2.    Non Insane Automatism – no disease of mind – simple acquittal

R. v. Parks (1992) SCC
Accused drove  long distance to his in-laws and killed his mother-in-law all while sleepwalking.    The SCC found that the trial judge had not erred in instructing the jury re: the defense of automatism rather than insanity.  La Forest J distinguished sane and non insane automatism.  When the defense of non insane automatism is raised by the accused, the trial judge must determine whether the defense should go to the trier of fact (must be satisfied that evidence supports this defense).  Sleepwalking is not a disease of the mind but may be considered so in certain contexts.  In this case, there was uncontradicted evidence that sleepwalking is not a mental disorder but rather a sleeping disorder for which there is no cure.  Because of the uncontradicted evidence, the SCC focused on medical issues – was it likely to recur (recurrence suggests insanity)? No – did the accused pose a continuing danger to the public? No.  There is no cure for sleepwalking other than good health practices.

Since Stone
An accused who raises the defense of non insane automatism must establish on a balance of the probabilities that they acted in an involuntary manner.  The majority in Stone was concerned that this defense might be faked under traditional law that allows the defense to go to the jury so long as evidence is presented that, if believed, would raise a reasonable doubt about the voluntariness of actions.  The reverse onus regarding the burden on the defense violates 11d but is saved under s.1.

SLEEPWALKING

Sleepwalking is not a disease of the mind but it gives rise to the defense of automatism.  Denning in Bratty stated that no act is punishable if done involuntarily – act done by muscles without the control of the mind while suffering from a concussion or sleepwalking.  See also: Parks.

INTOXICATION

Courts distinguish between voluntary and involuntary (case of the impaired driving from drug from a medication) intoxication.  Extreme intoxication is similar to automatism under CC16.  Under this, the violation to 11d is fine because only the accused can give evidence regarding how much alcohol they consumed and the effect it had on him.  Expert evidence is required to show that the accused was in a state similar to automatism when the crime was committed.  Intoxication (from drugs or alcohol) may be a condition that prevents that the Crown from proving that the accused had the fault element required for a particular offence.  There must be an air of reality to the intoxication defense.

Beard’s Rule: 3 Rules
1.    Intoxication could be grounds for insanity defense of it produces a disease of the mind.
2.    Evidence of drunkenness, which renders accused incapable of forming specific intent essential to constitute the crime should be taken in consideration with the other facts proved in order to determine whether or not he had this intent.
3.    That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
Beard killed a woman in the course of rape.  Shortly after the killing, he was admitted into a trade union where he answered questions intelligibly.  Drunkenness was no defense in this case because the accused was able to form the necessary intent.

What about Beard today?
It would be relevant today because it involved murder (specific intent), not manslaughter (general intent).  Today, the prosecution would have to prove that it was likely that the victim would die.  CC never included provisions re: intoxication as a defense.  Beard has been criticized but the SCC followed them for a long time.  In Canada, Beard has been interpreted as distinguishing between general and specific intent offences.

DISEASE OF THE MIND

R. v. Cooper (1979) SCC
Defined “disease of the mind” as “any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs as well as transitory mental states such as hysteria or concussion.”

Since Daviault, transitory states of extreme intoxication don’t qualify as a disease of the mind but chronic conditions caused by drug abuse may qualify.  In Rabey, the dissociate state caused by the accused being romantically rejected derived from internal factors that constituted a disease of the mind; however, this state was unlikely to recur meaning that it would be unduly intrusive to subject the accused to treatments and possible detention.  Diabetics – if they fail to take insulin or eat – external factors.

R. v. Abbey (1982) SCC
The trial judge found that the accused had knowingly imported cocaine but his disease of the mind precluded him from appreciating the consequences of his actions.  He was under the assumption that he was protected from punishment by an unseen external force.  SCC found the trial judge erred because the phrase in 16.2 of “appreciation of the nature and quality of an act” was limited to an appreciation of the physical consequences of the act, not the accused’s appreciation of the penal consequences of the act, which does not go to the mens rea of an offence.

CAPACITY TO KNOW THAT THE ACT IS WRONG

Under CC16.1, the two formulations of the mental disorder defense are:
1.    incapable of appreciating the nature or quality of the act or omission
2.    incapable of knowing the act is wrong

Swain
At common law, the Crown could adduce evidence of insanity over and above the accused’s wishes.  This breached s.7 and 9 of the Charter and could not be saved under s.1.

R. v. Schwartz
Established that the accused must be unable to know the act was legally wrong.  One is not insane if they knew what they were doing and knew they were committing a crime.  Knowing the act is legally wrong suffices.  This expanded the scope of the criminal responsibility unacceptably to include persons who by reasons of disease of the mind were incapable of knowing that an act was wrong according to normal and reasonable standards of society even though they were aware that the act was formally a crime.  Legally wrong standard

R. v. Chaulk (1990) SCC
Reversed Schwartz for the approach that wrong means morally wrong, not just legally wrong.  A person may be aware that an act is contrary to law but by disease of the mind is incapable of knowing that the act is morally wrong.  Morally wrong standard

Landry
This confirms the morally wrong standard.  The accused thought he was God killing Satan.  The defense of mental disorder is available if the paranoid delusion at the time of the act deprived him of the capacity of rational perception and thus determining the rightness or wrongness of the act.

AUTOMATISM

It is a fundamental principle that a person is only to be held responsible for conscious intentional acts.  Automatism is related to the mental disorder defense.  An accused who acts in a automatic state will normally satisfy one of the two arms of the mental disorder test found in CC16.1.  La Forest J defines automatism as “conceptually a subset of the voluntariness requirement which, in turn, is a part of the actus reus component of criminal liability.”  Automatism is a legal term that refers to unconscious or involuntary behavior.

R. v. Kay (1971) Ont. H.C.J.
The legal defense of automatism is a term used to describe unconscious involuntary behavior of a person that is capable of action but is not conscious about his actions.  “The mind does not go with what is being done.”

R. v. Revelle (1979) Ont. CA
The drunken accused entered the Amey home and demanded $10,000.  Non-insane automatism defense was not open to the respondent.

R. v. McDowell (1980) Ont. CA
The accused was charged with dangerous driving.  He was an on-duty cop who had been drinking on the job and using narcotic pain-killers to numb the pain of a sore elbow.

R. v. Rabey (1980) SCC
A U of T student was infatuated with his classmate, who spurned his advances and wrote a letter making fun of him which he later found in her notebook.  He attacked her in a secluded stairwell and proceeded to threaten a fellow student who came to her rescue with death.  An expert witness testified that R went into a severe dissociative state that was prompted by “stress in an area that is important to that individual.”  The Ont. CA stated that one would only have the defense of non insane automatism if he went into an automatic state because of an extraordinary event.  The SCC dismissed this by saying that if the accused had gone into an automatic state, the defense would have to be insane automatism.  Only extraordinary mental blows that would make an average person go into a dissociative state would qualify as non insane automatism.  R got a clean bill of health and did not have to undergo further psychiatric treatment.  There are three classes of mental disorder:
1.    Psychoses – major mental illness
2.    Neuroses – minor mental illness (dissociative state)
3.    Personality/Character disorders

3.    RELIANCE ON ERRONEOUS STATEMENTS OF LAW
If an accused made a mistake of law by relying on an innaccurate source of law, the rule that ignorance of the law is no excuse seems to require a conviction even though some exceptions have emerged.

R. v. McLean (1974)
The accused was involved in a car accident while driving a vehicle in the course of his employment at an airport and was charged with driving while disqualified.  His defense was that he was relying on advice he had been given over the phone by the MV Branch.  They informed him that it was not necessary to have a valid license while driving on airport roads (federal legislation requires a license for this).  The judge found that this mistake related to a regulation, which are more difficult to find.  CC19 is not absolute.

R. v. Cancoil (1986) Ont. CA
Officially induced error.  This defense is available to a provincial offence, even if there is a provincial equivalent of CC19.

R. v. Jorgensen (1995) SCC
The accused was charged with illegally selling obscene material without lawful excuse under CC162.a.  The issue arose as to whether the accused could rely on the defense that the adult videos were approved in Ontario.  Sopinka said no.  Lamer said that the defense of officially induced error should be allowed for both criminal and regulatory offences.  Roach says this defense is limited and does not harm the ignorance of the law rule.

INCAPACITY

Those who lack capacity (young children, insane people and intoxicated people) are said to have no mens rea.  Until 1982, the CC age for exemption from criminal liability was 7 – that a child under this age committed the actus reus and mens rea didn’t matter.  In 1983, the age was elevated to 12 in CC13.  In CC13, those that are between 12-18 years old are dealt with under the Young Offenders Act (YOA).  Now, 16-17 year-old youths can be transferred to adult court (if they commit murder (maximum ten year sentence), manslaughter, attempted murder or aggravated assault).

INSANITY/MENTAL DISORDER
Difficult area – controversy has raged for years between psychiatrists and lawyers.  Lawyers say that medical experts don’t understand the legal concept of criminal responsibility.  Psychologists say that the law’s understanding of medical knowledge is outdated.  Insanity is not a medical term.  Incapacity arises in two contexts:
1.    With respect to ones ability to stand trial
2.    With respect to whether one had the capacity needed to form the necessary mens rea.
Mental disorder is assessed by looking at the state of the accused’s mind at the time the act was committed.  Prior to 1991, the rules for insanity came from McNaughton (1843).  In 1991, Canada traded the words “insanity” for “mental disorder.”  In such cases, a full acquittal is not given.  Rather, the accused is deemed not criminally responsible on account of mental disorder.  Evidence short of establishing a full CC16 defense could still raise a reasonable doubt about some forms of mens rea.

McNaughton (1843) Eng. HL
M suffered from delusions.  He believed the PM was persecuting him and went to London to kill him.  He ended up shooting and killing the PM’s secretary instead of the PM.  The HL affirmed the availability of the insanity defense if it is “clearly proved that at the time of committing the act the accused was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of his act, or, if he did know it, he did not know that what he was doing was wrong.”

CC16 – Mental Incapacity
16.1    No responsibility for an act or omission made while suffering from a mental disorder that rendered the person 1. incapable of appreciating the nature or quality of the act or omission or 2. knowing that it was wrong.  Inability to appreciate the consequences of punishment doesn’t preclude an appreciation of the consequences of the act.
16.2    Presumption that people don’t suffer from a mental disorder until the contrary is proven on a balance of the probabilities.
16.3    The burden of proof in showing that an accused was suffering from a mental disorder is on the party that raises the issue.  One of few defenses that places the onus of proof on the accused.  Oakes established that reverse onuses contravene s.11d and must be justified under s.1; however, Chaulk established that the reverse onus provision for the defense of insanity is justified under s.1.  Either the defense or Crown can raise the defense of mental disorder.

MISTAKE OF LAW

With mistake of fact, notions of fairness intervene to allow for error (flexible approach).  With mistake of law, the system is very rigid – since the first CC there has been a provision ignorance of the law is not an excuse.  This applies to ignorance, not mistake; however, this distinction has been given little treatment.  Holmes says a less rigid approach might encourage ignorance where knowledge is desirable.  Public policy sacrifices the individual to the general good.  It is no doubt true that in many cases the criminal is not aware that he is breaking the law; however, the strict approach makes men know and obey – public order.

Mistake of Law: occurs when the mistake is not as to the actual facts but rather to their legal relevance, consequences, or significance.  Law: an idea in the mind of men.

R. v. Esop (1836) Eng. HL
The prisoner, a native of Baghdad, was charged with committing an unnatural offence on board a ship.  It was not an offence in his native country and he therefore was held to be not guilty.  What is the rationale for imposing liability on one who doesn’t know the law without consideration of whether that person was blameworthy in the circumstances?

R. v. Campbell and Mlynarchuk (1973) Alta. Dist. Ct.
A stripper appealed a conviction on a charge of taking part in an immoral performance by ending it in the nude contrary to CC163.2.  This case asserted that ignorance of the law cannot be used as a disclaimer for disobeying the law.  “There would be a premium upon ignorance of the law” if this strict rule was not in place.  Morrison says it demonstrates the problematic elements of this approach but it has survived Charter challenges.  “It is not justified because it is fair, it is justified because it is necessary even though it will sometimes produce anomalous results.”

R. v. Forrester (1992)
The principle of criminal law that an honest but mistaken belief in respect to the legal consequences of ones actions is not a defense to a criminal charge even when it cannot be attributed to the accused.

EXCEPTIONS

1.    COLOUR OF RIGHT
An honest but mistaken belief in a set of facts, which, if existed, would excuse the act done.  This has been recognized in various CC provisions.  It is generally accepted that these clauses are statutory exceptions to CC19 and can result from a pure mistake of law.  In Errand, the accused was found guilty of importing gems contrary to the Customs Act.  The accused’s belief that he didn’t have to declare the gems afforded him no excuse.  Colour of right must relate to a mistake rather than simple ignorance.  This defense is available for full mens rea – there is no reasonableness element.  The mistake must be honest (subjectively tested) but not necessarily reasonable.

R. v. Howson (1966) Ont. CA
The accused operated a towing company and was requested by the superintendent of a private lot to impound a car that was parked without permission in the lot.  Signs were everywhere indicating the lot was private.  The owner was asked to pay towing and storage charges to the towing company before they would release it.  The owner was charged with theft and was convicted.  The appeal was allowed and the conviction was quashed.  Under the circumstances the accused had a colour of right.  The honest belief of the accused that he had a right to tow the vehicle entitled him to the benefit of the doubt.  Why? Because there was a colour of right found expressly in that part of the CC.

2.    IMPOSSIBILITY CONCERNING NON-PUBLICATIONS
Canadian courts are prepared to take in to account one special type of possibility where subordinate legislation has not been published, although there is no requirement of publication in a Gazette.

R. v. Ross (1944)
Court overturned a conviction of hunting without a permit because a ministerial order declaring an area closed ha not been spread and there was no evidence that the hunters could have known.  The rationale is that it is impossible for a person to ascertain and comply with the law when it was not available to the public.

Definition of Sexual Assault:
An assault within any one of the definitions of that concept from the CC that is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated.

Test to be Applied:
Objective – viewed in light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?  All circumstances surrounding the conduct are relevant to the issue of whether the conduct was of a sexual nature and violated the complainants sexual history.

R. v. Ewanchuk (1999) SCC
A 17 year-old girl met E at his mobile home to discuss a job offer.  E made increasingly serious sexual advances on the complainant but stopped each time she said no.  She gave him a massage and accepted $100 from him; however, her compliance was said to be out of fear.  The SCC rejected the defense of implied consent upon which he was acquitted on twice before in favour of the “no means no” policy.  The SCC determined that implied consent is not a defense for sexual assault in Canada.  Major J. stated that to secure a conviction of sexual assault, it must be established that:
1.    The accused committed the actus reus (unwanted sexual touching)
a.    Touching – objectively determined
b.    sexual nature of the contact – objectively determined
c.    absence of consent – subjectively determined (determined by reference to the complainant’s subjective internal state of mind towards the touching at the time it occurred).
2.    The accused had the necessary mens rea (intention to touch knowing of, being reckless toward or willfully blind to a lack of consent either through words or actions of the person being touched).
Sexual assault only becomes a crime in the absence of consent.  Once unwillingness is expressed, the accused should make certain that she truly has changed her mind before proceeding with further intimacies.  L’Heureux-Dube commented that McClung’s remarks were uncalled for regarding “bonnet and crinolines” and added that it was not necessary to comment that the victim had a baby and was unmarried but living with her boyfriend.

R. v. Davis (1999) SCC
Followed Ewanchuk.  The actus reus of a sexual assault requires touching of a sexual nature without the consent of the complainant.  Roach says the SCC is concerned with maximizing the power of women in rape cases.  For mistaken belief to be considered:
1.    The complainant could not have consented to the sexual touching
2.    The accused must have honestly but mistakenly believed the complainant consented (couldn’t have proceeded with recklessness or willful blindness).

MISTAKEN BELIEF DEFENSE

In Ewanchuk Major accepts Dickson’s analysis that the mistaken belief defense is simply a denial of mens rea.  There is no persuasive burden of proof on the accused.  They simply must establish/meet the evidential burden with an air of reality.  In addition, this case established that consent must be obtained by an affirmation by the complainant by words or conduct.  The mistaken belief defense cannot be used where the mistake of belief derived from:
1.    Self-induced intoxication
2.    Recklessness or willful blindness
3.    Where reasonable steps were not taken in the circumstances to ascertain that the complainant was consenting

Pappajohn v. R. (1980) SCC
This appeal was based on the accused’s claim that the trial judge erred in failing to instruct the jury regarding the defense of honest but mistaken belief in consent.  The court would not consider the possibility of an honest but mistaken belief in consent, concluding that the only options that existed were either consent or non consent.  The accused must show that they believed the complainant communicated consent to the acts in question.  Mere speculation, silence, passivity or ambiguous conduct on the part of the complainant provides no defense.  The question to be asked in determining whether mens rea existed is whether the accused believed that they obtained consent.  If an honest but mistaken belief exists in the mind of the accused – no mens rea.  This is subject to a reasonableness standard.  In dissent, Dickson pointed to numerous pieces of circumstantial evidence that could be used to raise the defense of mistaken belief (folded clothing, no physical injuries, she never attempted to leave, etc.)

The mistaken belief defense was allowed in D.P.P., a case involving a man who brought 3 friends home from the pub to have sex with his wife.  He prefaced this invitation by informing them that she often put on a show of struggling during intercourse to elevate her excitement.  It was allowed because there was evidence in place to support it.

Air of Reality Test:
This was the most important part of the evidentiary ruling in Pappajohn.  McIntyre stated that the mistaken belief defense did not arise on the evidence because it had no air of reality.  He held that the trial judge was correct in choosing not to leave this defense to the jury.  The air of reality test is designed to restrict the mistaken belief defense.  As stated by McIntyre, evidence from other someone other than the accused is needed but Cory rejected this approach; however, he agreed with McIntyre that the accused merely stating “I believed she consented” is not good enough either – must be supported by evidence beyond a mere assertion.  Osolin established that the air of reality test did not violate 11d or 11f (right to trial by jury).