criminal defences ced 1

CED Criminal Law — Defences TitleCanadian Encyclopedic Digest

Criminal Law — Defences

© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents).All rights reserved.

To check the currency of the title, please refer to the subject title page.

Currency

Prepared by Pat Knoll, Q.C., LL.B., of the Alberta Bar, Professor of Law, University of Cal-gary: October 2005

Updated by the Legal Editorial Staff of Carswell: October 2009

Cases up to and including:

[2009] C.C.L. Case Law Digests, No. 7

Legislation up to and including:

Canada Gazette No. 143:16, 2009/08/05

Highlights

This title has been updated to include the following significant developments which have oc-curred since the main title was issued.

Cases:

Supreme Court of Canada

R. v. Grant (2009), 2009 CarswellOnt 4104 (S.C.C.): Sets out a test for determiningwhen the admission of evidence obtained by a Charter breach would bring the adminis-tration of justice into disrepute.

Related Titles

Administrative Law; Bailment; Bankruptcy and Insolvency; Conspiracy; Criminal Law — Of-fences; Criminal Law — Procedure; Crown; Education; Estoppel; Evidence; Firearms,Weapons and Explosives; Fires; Hospitals; Human Rights; Malicious Prosecution and FalseImprisonment; Mental Incapacity; Motor Vehicles; Municipal Corporations; Narcotic Control;Parties; Police; Public Authorities and Public Officers; Religious Institutions; Sentencing;Statutes; Timber; Trespass; Youth Criminal Justice.

CED Criminal Law — Defences Title

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END OF DOCUMENT

CED Criminal Law — Defences Title


CED Criminal Law — Defences StatutesCanadian Encyclopedic Digest

Criminal Law — DefencesTables



Table of Statutes

Canada Evidence Act, R.S.C. 1985, c. C-5

s. 4......II.1.(a) §44

s. 4(1)......I.2.(h).(ii) §35, II.1.(c).(ii) §47

s. 4(2)......II.1.(c).(iii) §48

s. 4(3)......II.1.(c).(v) §52

s. 4(4)......II.1.(c).(iii) §48

s. 4(5)......II.1.(c).(iv) §49

s. 4(6)......VI.1.(d).(ii) §396

Canadian Charter of Rights and Freedoms, see R.S.C. 1985, App. II (No. 44)......V.2.(a)§312, V.2.(b) §314.1, VI.4.(d) §432

s. 1......V.2.(d) §319

s. 7......I.2.(h).(ii) §33, IV.4.(c) §204, V.2.(c) §315

s. 8......V.2.(c) §316

s. 9......V.2.(c) §317

s. 10......V.2.(c) §318

s. 11(d)......I.2.(f) §21, I.2.(h).(ii) §33

s. 11(h)......V.6.(b).(i) §340

s. 24(1)......I.2.(h).(ii) §33, V.2.(b) §313

CED Criminal Law — Defences Statutes Page 1


s. 24(2)......V.2.(b) §314, V.2.(c) §315

Competition Act, R.S.C. 1985, c. C-34

s. 67(6)......V.7.(b) §379

Constitution Act, 1867, see R.S.C. 1985, App. II (No. 5)......II.3.(e).(i) §77

s. 91¶27......VI.13.(a) §500

Constitution Act, 1982, see R.S.C. 1985, App. II (No. 44)

s. 52(1)......V.2.(e) §320

Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24

s. 9(3)......V.4.(b) §331

s. 11......III.2 §125, III.2 §126

s. 14......III.2 §125, III.2 §126

s. 14(2)......III.2 §127

Criminal Code, R.S.C. 1985, c. C-46......I.2.(c) §17

s. 2 "bodily harm"......III.6.(a).(i) §143

s. 2 "mental disorder"......II.4.(a) §83, II.4.(f).(i) §92, IV.2.(e) §179

s. 2 "organization"......VI.4.(b) §426

s. 2 "representative"......VI.4.(c) §428

s. 2 "senior officer"......VI.4.(c) §429, VI.4.(c) §430

s. 5......II.3.(f) §81

s. 6(1)(a)......I.2.(f) §21

s. 6(2)......VI.9.(c).(ii) §477

s. 7......VI.9.(c).(ii) §477

s. 7(4)......II.3.(d).(i) §64

s. 7(4.3)......V.4.(b) §331

s. 7(7)......V.4.(b) §331

s. 8(3)......I.2.(c) §16, I.2.(d) §19



s. 13......II.3.(a) §57

s. 14......VI.2.(e) §417

s. 15......IV.6.(b).(v) §265

s. 16......I.2.(b) §15, IV.2.(d) §177, IV.2.(e) §178

s. 16(1)......II.4.(a) §83

s. 16(2)......II.4.(b) §84

s. 16(3)......II.4.(d) §86

s. 17......IV.4.(a) §194, IV.4.(b) §203, IV.4.(c) §204

s. 18......IV.4.(e) §206

s. 19......IV.6.(b).(i) §258

s. 21(2)......VI.7.(a) §444

s. 22.1......VI.4.(b) §426

s. 22.2......VI.4.(b) §427, VI.4.(c) §431

s. 23.1......V.6.(e).(iii) §376

s. 24(1)......VI.3.(a).(i) §419

s. 24(2)......VI.3.(c) §423

s. 25(1)......III.3.(a) §128

s. 25(2), (3)......III.3.(a) §129

s. 25(4)......III.3.(a) §130

s. 25(4)(d)......III.3.(a) §130

s. 25(5)......III.3.(a) §130

s. 25.1......III.3.(a) §128

s. 26......III.1.(h) §124, III.3.(g) §136, III.4.(c) §141, III.6.(i) §164

s. 27(a)......III.1.(a) §111, III.3.(b) §131, III.6.(e) §158

s. 27(b)......III.3.(b) §131, III.6.(e) §158

s. 27.1......III.3.(b) §131



s. 28(1), (2)......III.3.(c) §132

s. 29(1)-(3)......III.3.(d) §133

s. 30, 31......III.3.(e) §134

s. 32(1)......III.3.(f) §135

s. 32(2), (3)......III.2 §125, III.3.(f) §135

s. 32(4), (5)......III.3.(f) §135

s. 33......III.3.(f) §135

s. 33.1......IV.2.(f) §184, IV.5.(k).(i) §234

s. 33.1(1)-(3)......IV.5.(c) §213

s. 34(1)......III.6.(a).(i) §143

s. 34(2)......III.6.(a).(ii) §147

s. 35......III.6.(b) §154, IV.9.(a) §279

s. 35(c)......III.6.(f) §160

s. 36......III.6.(c) §155

s. 37......III.6.(d) §157

s. 38(1)......III.1.(b) §112

s. 38(2)......III.1.(b) §113

s. 39(1)......III.1.(c) §114

s. 39(2)......III.1.(c) §115

s. 40......III.1.(d) §116

s. 41(1)......III.1.(e) §117

s. 41(2)......III.1.(e) §119

s. 42(1)......III.1.(f) §120

s. 42(2)......III.1.(f) §121

s. 42(3)......III.1.(f) §122

s. 43......III.4.(a) §137



s. 45......III.4.(b) §140

s. 46......VI.9.(c).(ii) §477

s. 48(1)......V.7.(a) §378

s. 54......V.4.(b) §331

ss. 57, 58......VI.9.(c).(ii) §477

s. 72(2)......IV.3.(a).(iii) §188

s. 74......VI.9.(c).(ii) §477

s. 119......V.4.(b) §331

s. 136(3)......V.4.(a) §330

s. 150.1......VI.2.(e) §415

s. 150.1(3)......II.3.(a) §58

s. 151......II.1.(c).(iii) §48, VI.2.(e) §415

s. 152......II.1.(c).(iii) §48, VI.2.(e) §415

s. 153......II.1.(c).(iii) §48

s. 153(1)......VI.2.(e) §415

s. 153.1(2)-(6)......VI.2.(e) §416

s. 155......II.1.(c).(iii) §48

s. 159......II.1.(c).(iii) §48

s. 159(2)......VI.2.(e) §415

s. 159(2)(a)......II.1.(a) §44

s. 160(2)......II.1.(c).(iii) §48

s. 160(3)......II.1.(c).(iii) §48, VI.2.(e) §415

s. 163(1)-(5)......III.5 §142

s. 164(7)......V.4.(a) §330

s. 170......II.1.(c).(iii) §48

s. 172......II.1.(c).(iii) §48



s. 172(4)......V.4.(a) §330

s. 173......II.1.(c).(iii) §48

s. 173(2)......VI.2.(e) §415

s. 174(3)......V.4.(a) §330

s. 179......II.1.(c).(iii) §48

s. 189(6)......II.1.(c).(v) §54

s. 212......II.1.(c).(iii) §48

s. 215......II.1.(c).(iii) §48

s. 218......II.1.(c).(iii) §48

ss. 220, 221......II.1.(c).(iii) §48

s. 232......I.2.(b) §15, IV.9.(a) §279

s. 232(1), (2)......IV.9.(b) §280

s. 232(3)(b)......IV.9.(h) §293

ss. 235-237......II.1.(c).(iii) §48

ss. 239, 240......II.1.(c).(iii) §48

s. 251......V.4.(b) §331

s. 265(4)......IV.6.(a).(iii) §246

s. 266-269......II.1.(c).(iii) §48

s. 269.1(3)......III.2 §127

s. 271......II.1.(c).(iii) §48, VI.2.(e) §415

s. 272......II.1.(c).(iii) §48, VI.2.(e) §415

s. 273......II.1.(c).(iii) §48, VI.2.(e) §415

ss. 273.1, 273.2......VI.2.(d) §414

s. 280......II.1.(c).(iii) §48, IV.4.(c) §204, VI.2.(e) §415

s. 281......II.1.(c).(iii) §48, IV.4.(c) §204, VI.2.(e) §415

s. 282......II.1.(c).(iii) §48



s. 282(1)......IV.4.(c) §204, VI.2.(e) §415

s. 283......II.1.(c).(iii) §48, IV.4.(c) §204, VI.2.(e) §415

s. 284......VI.2.(e) §415

s. 286......VI.2.(e) §415

s. 290......VI.9.(c).(ii) §477

ss. 291-294......II.1.(c).(iii) §48

s. 318(3)......V.4.(a) §330

s. 319(6)......V.4.(a) §330

s. 385(2)......V.4.(a) §330

s. 422(3)......V.4.(a) §330

s. 429(2)......IV.3.(a).(iv) §189

s. 465(4)......VI.9.(c).(ii) §477

s. 476......VI.9.(c).(iii) §480

s. 477.2......V.4.(b) §331

s. 478(1)......VI.9.(c).(i) §475, VI.9.(c).(iii) §479

s. 485(2)......V.7.(a) §378

s. 494, 495......III.3.(a) §128

s. 583(b), (g)......VI.9.(e) §484

s. 583(h)......V.4.(f) §335

s. 588......VI.9.(e) §484

s. 601(4.1)(a)......VI.9.(d) §482

s. 601(4.1)(b)......VI.9.(c).(i) §475

s. 606......I.2.(h).(iii).A §37

s. 606(2)......I.2.(h).(iii).D §40

s. 606(4)......I.2.(h).(iii).E §41

s. 607......I.2.(h).(iii).A §37, V.6.(b).(i) §340



s. 607(3)......V.6.(b).(ii) §341

s. 607(5)......V.6.(b).(ii) §342

s. 608......V.6.(b).(iv) §345

s. 609(1)......V.6.(b).(iv) §346

s. 609(2)......V.6.(b).(iv) §347

s. 610......V.6.(b).(iv) §347

ss. 611, 612......I.2.(h).(iii).A §37

s. 613......I.2.(h).(iii).B §38

s. 650(1), (2)......I.2.(h).(i) §31

s. 650(3)......I.2.(h).(ii) §33

s. 650.01......I.2.(h).(i) §31

ss. 672.31-672.33 ......II.4.(c) §85

ss. 672. 34-672.36......II.4.(a) §83

s. 672.54......II.4.(g) §107

s. 786(2)......V.7.(b) §379, V.7.(b) §384

s. 794(2)......I.2.(g).(iii) §26

s. 803(3)......V.4.(a) §330

Fisheries Act, R.S.C. 1985, c. F-14

s. 82......V.7.(b) §379

Foreign Missions and International Organizations Act, S.C. 1991, c. 41

s. 3......II.3.(d).(i) §64, II.3.(d).(i) §65, II.3.(d).(ii) §66, II.3.(d).(ii) §67, II.3.(d).(ii) §68

s. 5(1)......II.3.(d).(iii) §69, II.3.(d).(iii) §70, II.3.(d).(iii) §71

Sched. I

art. 29......II.3.(d).(ii) §66

art. 31......II.3.(d).(ii) §66

Sched. II



art. 31 ¶2......II.3.(d).(ii) §66

art. 32¶1......II.3.(d).(ii) §66

art. 37¶1......II.3.(d).(ii) §66

art. 37¶2......II.3.(d).(ii) §67

art. 37¶3......II.3.(d).(ii) §67

art. 41¶1......II.3.(d).(i) §64

art. 43¶1......II.3.(d).(i) §64, II.3.(d).(i) §65

art. 44......II.3.(d).(i) §64, II.3.(d).(i) §65

art. 45......II.3.(d).(i) §64

art. 53¶2......II.3.(d).(i) §64

Sched. III, art IV......II.3.(d).(iii) §70

s. 11......II.3.(d).(iii) §69

s. 12......II.3.(d).(iii) §69

s. 22(a), (b)......II.3.(d).(iii) §71

Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)

s. 244(4) ......V.7.(b) §379

Interpretation Act, R.S.C. 1985, c. I-21

34......I.1.(c) §11

s. 34(1)(a)......I.1.(c) §12

s. 34(1)(b)......I.1.(c) §13

National Defence Act, R.S.C. 1985, c. N-5

s. 66......II.3.(f) §81

s. 69......V.7.(a) §378

ss. 70, 71......II.3.(f) §81

s. 74......III.2 §125

Parliament of Canada Act, R.S.C. 1985, c. P-1



s. 4......II.3.(e).(i) §77

Privileges and Immunities (North Atlantic Treaty Organization) Act, R.S.C. 1985, c. P-24

Sched.,

art. 12......II.3.(d).(iv) §72

art. 13¶1(a), (b)......II.3.(d).(iv) §73

art. 17......II.3.(d).(iv) §74

art. 18(a)......II.3.(d).(iv) §74

art. 21 ¶ 1(a), (b)......II.3.(d).(iv) §75

Statutory Instruments Act, R.S.C. 1985, c. S-22

s. 11(2)......IV.6.(b).(vi) §266

State Immunity Act, R.S.C. 1985, c. S-18

ss. 2, 3......II.3.(d).(v) §76

Visiting Forces Act, R.S.C. 1985, c. V-2

s. 3......II.3.(f) §82

s. 5......II.3.(f) §82

s. 6(1), (2)......II.3.(f) §82

Youth Criminal Justice Act, S.C. 2002, c. 1......II.3.(a) §57

s. 136(1)......II.1.(c).(iii) §48

END OF DOCUMENT



CED Criminal Law — Defences RegulationsCanadian Encyclopedic Digest

Criminal Law — DefencesTables



Table of Regulations

Foreign Missions and International Organizations Act, S.C. 1991, c. 41

Privileges and Immunities Accession Order (United Nations), C.R.C. 1978, c.1317......II.3.(d).(iii) §69

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CED Criminal Law — Defences Regulations Page 1


CED Criminal Law — Defences I.1.(a)Canadian Encyclopedic Digest

Criminal Law — DefencesI — Introduction

1 — Offences(a) — Physical Element and Mental Element


To check the currency of the title, please refer to the subject title page.I.1.(a)

See Canadian Abridgment: CRM.I.1 Criminal law — General principles — Actus reus

§1 All true criminal offences require proof of both a physical element and a mental ele-ment.[FN1]

§2 The physical element, which may be either an act or an omission, is known as the actus re-us, or guilty act. There can be no actus reus unless an act is the result of a willing mind atliberty to make a definite choice or decision; in other words, there must be the willpower to doan act whether or not the accused knew it was prohibited by law.[FN2]

§3 A defence of reflex action based on a lack of voluntary conduct may be raised in answer toa criminal charge.[FN3]

§4 The Crown must also establish a mental element, namely that the accused committed theprohibited act intentionally or recklessly, with knowledge of the facts constituting the offence,or with wilful blindness toward them. Mere negligence is excluded from the concept of themental element required for conviction; within the context of a criminal prosecution, a personwho fails to make such inquiries as a reasonable and prudent person would make, or who failsto know facts he or she should have known, is innocent in the eyes of the law.[FN4]

FN1. R. v. King, [1962] S.C.R. 746 (S.C.C.) (accused unaware of likely effect of drug in-jection by dentist; acquitted of impaired driving); R. v. Martineau, [1990] 2 S.C.R. 633(S.C.C.) (no conviction for true crime unless proof of intent or recklessness); see also R.v. Beaver, [1957] S.C.R. 531 (S.C.C.); R. v. Laurie (1978), 42 C.C.C. (2d) 311 (N.B.C.A.).

FN2. R. v. King, [1962] S.C.R. 746 (S.C.C.); see also Director of Public Prosecutions v.Majewski, [1973] 2 W.L.R. 623 (U.K. H.L.); R. v. Whitter, [1981] 2 S.C.R. 606 (S.C.C.)(independent acts cannot be lumped together to constitute full act required by law); R. v.Moore, [1979] 1 S.C.R. 195 (S.C.C.) (actus reus may be carried out by omission).

FN3. R. v. Mullin (1990), 56 C.C.C. (3d) 476 (P.E.I. C.A.) (must be involuntary re-

CED Criminal Law — Defences I.1.(a) Page 1


sponse over which accused having no control); R. v. Pirozzi (1987), 34 C.C.C. (3d) 376(Ont. C.A.) (reflex action raised as defence to assault); see also R. v. H. (B.) (1987),1987 CarswellOnt 3005 (Ont. Youth Ct.); R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ont.C.A.); R. v. Starratt, [1972] 1 O.R. 227 (Ont. C.A.).

FN4. R. v. Beaver, [1957] S.C.R. 531 (S.C.C.); R. v. Sault Ste. Marie (City), [1978] 2S.C.R. 1299 (S.C.C.); R. v. Pappajohn, [1980] 2 S.C.R. 120 (S.C.C.); R. v. J. (S.G.)(1992), 77 C.C.C. (3d) 472 (B.C. C.A.) (innocent acquisition of counterfeit money maybe cured by transfer to police); R. v. Krushel (2000), 2000 CarswellOnt 325 (Ont. C.A.);leave to appeal refused (2002), 2002 CarswellOnt 4384 (S.C.C.); R. c. Assante (2002),170 C.C.C. (3d) 199 (Que. C.A.); leave to appeal refused (2003), 2003 CarswellQue 609(S.C.C.) (lack of mens rea from A.D.D.); R. v. Thornton (1991), 3 C.R. (4th) 381 (Ont.C.A.); affirmed (1993), 21 C.R. (4th) 215 (S.C.C.).

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CED Criminal Law — Defences I.1.(b).(i)Canadian Encyclopedic Digest


1 — Offences(b) — Categories of Offences

(i) — Mens Rea


To check the currency of the title, please refer to the subject title page.I.1.(b).(i)

See Canadian Abridgment: CRM.I.2 Criminal law — General principles — Fault

§5 Mens rea offences, which are criminal offences in the true sense, require proof by the pro-secution of some positive state of mind such as intent, knowledge or recklessness, either as aninference from the nature of the act committed or by additional evidence.[FN1]

§6 Mens rea is a complex concept having different meanings in different contexts, but it ismost frequently used to describe the minimum necessary mental element required for criminalliability where a particular mental element is not expressly made a constituent element of theoffence. The minimum necessary mental element for most crimes is knowledge of the circum-stances which make up the actus reus of the crime, and foresight or intention with respect toany consequences required to constitute the actus reus of the crime.[FN2]

§7 In the case of true crimes, there is a presumption that a person should not be held liable forthe wrongfulness of an act if it is without mens rea. A provincial legislature may create of-fences which, although not criminal in the true sense, also require mens rea. This is accom-plished by the use of words in the enactment such as willfully, with intent, knowingly or in-tentionally, or by the structure of the offence.[FN3]

§8 Lack of mens rea will provide an accused a complete defence.[FN4]

FN1. R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.); O'Grady v. Sparling,[1960] S.C.R. 804 (S.C.C.) (intention and recklessness being only states of mind whichconstitute mens rea); R. v. Sansregret, [1985] 1 S.C.R. 570 (S.C.C.) (recklessness, toform part of criminal mens rea, must have subjective element); R. v. Baril, [1979] 2S.C.R. 547 (S.C.C.) (Criminal Code offences presumed to import mens rea unless clearindication to contrary); R. v. Pappajohn, [1980] 2 S.C.R. 120 (S.C.C.) (Parliament, byexpress words, can create criminal offences for which guilty intention not essential in-gredient); R. v. Tutton, [1989] 1 S.C.R. 1392 (S.C.C.) (court divided on issue of subject-ive recklessness versus objective negligence); R. v. Creighton (1993), 23 C.R. (4th) 189

CED Criminal Law — Defences I.1.(b).(i) Page 1


(S.C.C.) (test for unlawful act of manslaughter one of objective foresight of bodily harmrather than death); see also R. v. Waite, [1989] 1 S.C.R. 1436 (S.C.C.).

FN2. R. v. DeSousa, [1992] 2 S.C.R. 944 (S.C.C.); R. v. Hundal, [1993] 1 S.C.R. 867(S.C.C.) (modified objective test appropriate for dangerous driving, offence of negli-gence); R. v. Godin (1994), 31 C.R. (4th) 33 (S.C.C.) (aggravated assault requiring mensrea of objective foresight); R. v. MacGillivray (1995), 37 C.R. (4th) 221 (S.C.C.)(applying objective test of negligence for dangerous driving); see also R. v. Théroux,[1993] 2 S.C.R. 5 (S.C.C.); R. v. Zlatic, [1993] 2 S.C.R. 29 (S.C.C.).

FN3. Strasser v. Roberge, [1979] 2 S.C.R. 953 (S.C.C.) (intentional element in provin-cial offence not necessarily excluding it from strict or absolute liability category).

FN4. R. v. Kundeus, [1976] 2 S.C.R. 272 (S.C.C.) (where mens rea not proved, accusedto be acquitted); R. v. Savinkoff (1962), 39 C.R. 306 (B.C. C.A.) (must be proof of mensrea before conviction); R. v. Elder, [1978] 3 W.W.R. 351 (Sask. Dist. Ct.); R. v. Murray(1985), 36 M.V.R. 12 (Ont. C.A.); R. v. Desveaux (1986), 51 C.R. (3d) 173 (Ont. C.A.)(alcohol, drugs, provocation and excessive force in self-defence relevant to issue of in-tent); R. c. Parent (2001), 154 C.C.C. (3d) 1 (S.C.C.) (anger cannot negate mens rea).

END OF DOCUMENT

CED Criminal Law — Defences I.1.(b).(i) Page 2


CED Criminal Law — Defences I.1.(b).(ii)Canadian Encyclopedic Digest



(ii) — Strict Liability


To check the currency of the title, please refer to the subject title page.I.1.(b).(ii)

See Canadian Abridgment: CRM.I.2.f.ii Criminal law — General principles — Fault — Regu-latory offences — Defence of due diligence

§9 Strict liability offences are offences where there is no necessity for the prosecution toprove the existence of mens rea. The doing of the prohibited act prima facie imports the of-fence. It is open to the accused, however, to avoid liability by proving that he or she took allreasonable care. This involves consideration of what a reasonable person would have done inthe circumstances. The defence will be available if the accused reasonably believed in a mis-taken set of facts which, if true, would render the act or omission innocent, or if he or she tookall reasonable steps to avoid the particular event.[FN1]

FN1. R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.); R. v. Harris (1997),121 C.C.C. (3d) 64 (N.S. C.A.) (excessive by-catch of haddock resulting from failure ofcrewman to follow accused's instructions; accused's method for preventing excessive by-catch not perfect but working for previous three years and reasonable in circumstances;acquittal restored); R. v. Smillie (1998), 20 C.R. (5th) 179 (B.C. C.A.) (offence under s.86(3) of storing firearms in manner contrary to regulations quasi-regulatory offence ofstrict liability; defence of due diligence open to accused); R. v. Tavares (1996), 451A.P.R. 154 (Nfld. C.A.) (off-shore fishing); see also R. v. Chapin, [1979] 2 S.C.R. 121(S.C.C.) (for offences of strict liability, mistake must be reasonable); R. v. WholesaleTravel Group Inc., [1991] 3 S.C.R. 154 (S.C.C.) (defence of due diligence to be provenon balance of probabilities); CanadianOxy Chemicals Ltd. v. Canada (Attorney General)(1999), 23 C.R. (5th) 259 (S.C.C.) ("evidence with respect to the commission of an of-fence" in Criminal Code provision authorizing issuance of search warrant pertaining toevidence of due diligence in regulatory offence); but see Strasser v. Roberge, [1979] 2S.C.R. 953 (S.C.C.) (some strict or absolute liability offences may have intentional ele-ment); R. v. Rube, [1992] 3 S.C.R. 159 (S.C.C.) (presumption that offence strict ratherthan absolute liability due to Canadian Charter of Rights and Freedoms); R. v. Pontes(1995), 100 C.C.C. (3d) 353 (S.C.C.) (if no due diligence defence then cannot be strictliability offence).

CED Criminal Law — Defences I.1.(b).(ii) Page 1


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CED Criminal Law — Defences I.1.(b).(ii) Page 2


CED Criminal Law — Defences I.1.(b).(iii)Canadian Encyclopedic Digest



(iii) — Absolute Liability


To check the currency of the title, please refer to the subject title page.I.1.(b).(iii)

See Canadian Abridgment: CRM.I.2.f.i Criminal law — General principles — Fault — Regu-latory offences — Absolute

§10 Offences where it is not open to the accused to exculpate himself by showing he was freeof fault are considered absolute liability offences.[FN1]

FN1. R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.); R. v. DeSousa, [1992]2 S.C.R. 944 (S.C.C.) (s. 7 of Charter may provide protection against absolute liability insome instances); R. v. Kurtzman (1991), 4 O.R. (3d) 417 (Ont. C.A.) (failure to stop atred light offence of absolute liability); R. v. Martin (1991), 2 O.R. (3d) 16 (Ont. C.A.);affirmed (1992), 7 O.R. (3d) 319 (S.C.C.) (must be clearly indicated that offence one ofabsolute liability); R. v. Geraghty (1990), 22 M.V.R. (2d) 57 (B.C. C.A.) (absolute liab-ility unconstitutional if coupled with imprisonment); R. v. Pontes (1995), 100 C.C.C.(3d) 353 (S.C.C.) (minimum period of imprisonment constitutionally inapplicable to sec-tion creating absolute liability offence); see also §§454-458.

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CED Criminal Law — Defences I.1.(b).(iii) Page 1


CED Criminal Law — Defences I.1.(c)Canadian Encyclopedic Digest


1 — Offences(c) — Summary and Indictable Offences


To check the currency of the title, please refer to the subject title page.I.1.(c)

See Canadian Abridgment: CRM.I.4.a.i Criminal law — General principles — Jurisdiction —Classification of offences — Indictable offences; CRM.I.4.a.ii Criminal law — General prin-ciples — Jurisdiction — Classification of offences — Summary conviction offences

§11 A criminal offence may be prosecuted summarily or by indictment.[FN1]

§12 An offence is deemed to be an indictable offence if it may be prosecuted by indict-ment.[FN2]

§13 An offence is deemed to be a summary conviction offence if the context of the legislationcreating the offence does not indicate that the offence is indictable.[FN3]

FN1. Interpretation Act, R.S.C. 1985, c. I-21, s. 34; R. v. Sacobie (1979), 2 F.P.R. 259(N.B. C.A.); affirmed (1983), 3 F.P.R. 1 (S.C.C.) (principles regarding prosecution ofnon-criminal offences).

FN2. Interpretation Act, R.S.C. 1985, c. I-21, s. 34(1)(a); see also Criminal Law — Pro-cedure.

FN3. Interpretation Act, R.S.C. 1985, c. I-21, s. 34(1)(b); see also Criminal Law — Pro-cedure.

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CED Criminal Law — Defences I.1.(c) Page 1


CED Criminal Law — Defences I.2.(a)Canadian Encyclopedic Digest


2 — Defences(a) — Defence Defined


To check the currency of the title, please refer to the subject title page.I.2.(a)

See Canadian Abridgment: CRM.V Criminal law — Defences

§14 A defence is any answer which defeats the charge on the facts, or any means or argumenton the law which has the same result.[FN1]

FN1. R. v. Romer (1914), 23 C.C.C. 235 (Que. Pol. Ct.); R. v. Chaulk, [1990] 3 S.C.R.1303 (S.C.C.) (in general sense defence being answer which defeats criminal charge).

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CED Criminal Law — Defences I.2.(b)Canadian Encyclopedic Digest


2 — Defences(b) — General Defences and Particular Defences


To check the currency of the title, please refer to the subject title page.I.2.(b)


§15 Some defences, such as alibi, necessity, duress and mental disorder defences of generalapplication, if raised, may provide a complete defence.[FN1] Other defences, such as colourof right, provocation and intoxication, are available only for certain offences or provide only apartial defence to the offence charged.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 16 [re-en. 1991, c. 43, s. 2] (no personcriminally responsible when suffering from mental disorder).

FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 232 (murder may be reduced to man-slaughter if act caused by provocation); see also R. v. Mulligan, [1977] 1 S.C.R. 612(S.C.C.) (intoxication can reduce murder to manslaughter).

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CED Criminal Law — Defences I.2.(b) Page 1


CED Criminal Law — Defences I.2.(c)Canadian Encyclopedic Digest


2 — Defences(c) — Common Law Defences


To check the currency of the title, please refer to the subject title page.I.2.(c)


§16 Every rule and principle of the common law that renders any circumstances a justificationor excuse for an act, or a defence to a charge, continues to be a justification, excuse or a de-fence under the Criminal Code or other law of Canada, except in so far as such a rule or prin-ciple is altered by or is inconsistent with the Criminal Code or other Act of Parliament.[FN1]This provision has been interpreted in reference to such common law defences asduress,[FN2] necessity[FN3] and res judicata.[FN4]

§17 The Criminal Code[FN5] does not restrict the courts to a static view of common law de-fences. New defences may be recognized as the common law evolves and develops. This com-mon law development may occur independently in Canadian criminal law or by recognition ofcommon law development in foreign jurisdictions.[FN6]

§18 The courts may consider pre-existing common law rules to give meaning to and explainthe parameters of any existing defence.[FN7]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 8(3).

FN2. R. v. Paquette (1976), [1977] 2 S.C.R. 189 (S.C.C.).

FN3. Perka v. R., [1984] 2 S.C.R. 232 (S.C.C.).

FN4. R. v. Kienapple, [1975] 1 S.C.R. 729 (S.C.C.).

FN5. Criminal Code, R.S.C. 1985, c. C-46.

FN6. R. v. Seaboyer (1987), 58 C.R. (3d) 289 (Ont. C.A.); affirmed [1991] 2 S.C.R. 577(S.C.C.) (guidelines for exercise of power to develop and change common law); R. v.Salituro, [1991] 3 S.C.R. 654 (S.C.C.) (common law rule of spousal incompetency modi-fied); R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.) (new common law rules for insanity de-fence; Charter applying to common law rules as well as to statutes and regulations); R. c.



Daviault (1994), 93 C.C.C. (3d) 21 (S.C.C.) (common law rule for intoxication defencealtered).

FN7. R. v. Jobidon, [1991] 2 S.C.R. 714 (S.C.C.) (defence of consent); see also R. v.Kirzner, [1978] 2 S.C.R. 487 (S.C.C.).

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CED Criminal Law — Defences I.2.(d)Canadian Encyclopedic Digest


2 — Defences(d) — Nature of Justification and Excuse


To check the currency of the title, please refer to the subject title page.I.2.(d)

See Canadian Abridgment: CRM.V.13.a.ii Criminal law — Defences — Lawful authority —To administer or enforce law — Justification for use of force; CRM.V.21.e Criminal law —Defences — Self defence — Effect of provocation; CRM.V Criminal law — Defences

§19 Under the common law, many defences were considered to be defences of either justifica-tion or excuse.[FN1] A justification defence challenges the wrongfulness of an action thattechnically constitutes a crime, by showing that the circumstances made the action rightfuland therefore justified; the actors are to be praised as having been motivated by some great ornoble object.[FN2] An excuse defence concedes the wrongfulness of the action, but assertsthat the circumstances under which it was done were such that it ought not to be attributed tothe actor.[FN3]


FN2. Perka v. R., [1984] 2 S.C.R. 232 (S.C.C.), per Dickson J.

FN3. Perka v. R., [1984] 2 S.C.R. 232 (S.C.C.), per Dickson J.

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CED Criminal Law — Defences I.2.(d) Page 1


CED Criminal Law — Defences I.2.(e)Canadian Encyclopedic Digest


2 — Defences(e) — Duty of Trial Judge


To check the currency of the title, please refer to the subject title page.I.2.(e)

See Canadian Abridgment: CRM.I.4.b.ii Criminal law — General principles — Jurisdiction —Jurisdiction of court — Superior court; CRM.I.4.b.iv Criminal law — General principles —Jurisdiction — Jurisdiction of court — Provincial court judge

§20 It is the duty of a trial judge to submit to the jury any defence available to the accused thatis revealed by the evidence, whether or not counsel for the accused chose to advance that de-fence in his or her address to the jury.[FN1] The fact that a defending counsel does not stressan alternative defence before the jury — which may be difficult to do without prejudicing themain defence — does not relieve the judge from the duty of directing the jury to consider thealternative defence, if there is evidence to justify its consideration.[FN2]

FN1. R. v. Pappajohn, [1980] 2 S.C.R. 120 (S.C.C.); R. v. Young, [1981] 2 S.C.R. 39(S.C.C.); R. v. Wiggins (1988), 42 C.C.C. (3d) 303 (B.C. C.A.); affirmed [1990] 1 S.C.R.62 (S.C.C.) (theory of defence to be provided, not just serial review of evidence); R. v.Delong (1989), 69 C.R. (3d) 147 (Ont. C.A.) (reading of Criminal Code sections con-cerning defences unacceptable); R. v. Morin, [1988] 2 S.C.R. 345 (S.C.C.) (inconsistentdefences may be advanced by accused); R. v. Sims (1994), 87 C.C.C. (3d) 402 (B.C.C.A.) (no requirement of putting self-defence to jury after accused denying it); see alsoR. v. Cosgrove (1975), 29 C.C.C. (2d) 169 (Ont. C.A.) (counsel for accused with incon-sistent defences arguing only one before jury, but requesting other be put by trial judge);R. v. Funell (1973), 12 C.C.C. (2d) 215 (Ont. C.A.).

FN2. Mancini v. Director of Public Prosecutions, [1942] A.C. 1 (U.K. H.L.); R. v. Mur-ray (1994), 93 C.C.C. (3d) 70 (Ont. C.A.) (trial judge having obligation to instruct jurywith respect to defences reasonably arising from evidence notwithstanding objections byaccused's counsel); see also R. v. Côté, [1964] S.C.R. 358 (S.C.C.) (improper for defencecounsel to intentionally fail to raise defence at trial with view to pursuit in appeal courtof defence not raised); R. v. Wu, [1934] S.C.R. 609 (S.C.C.); R. c. Lessard, [1992] R.J.Q.1205 (Que. C.A.); leave to appeal refused (1992), 145 N.R. 390 (note) (S.C.C.) (theoryof defence to be given to jury; however, if defence having no air of reality, judge mayinstruct to disregard); R. c. Aflalo, [1991] R.J.Q. 2131 (Que. C.A.); leave to appeal re-

CED Criminal Law — Defences I.2.(e) Page 1


fused (1992), 71 C.C.C. (3d) vii (note) (S.C.C.) (judge must present fair and sufficientoutline of defence theory); R. v. Charest (1990), 76 C.R. (3d) 63 (Que. C.A.) (trial judgeto inform counsel prior to jury address if defence not available).

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CED Criminal Law — Defences I.2.(e) Page 2


CED Criminal Law — Defences I.2.(f)Canadian Encyclopedic Digest


2 — Defences(f) — Presumption of Innocence


To check the currency of the title, please refer to the subject title page.I.2.(f)

See Canadian Abridgment: CRM.III.12 Criminal law — Canadian Bill of Rights — Presump-tion of innocence; EVD.II.7.b Evidence — Proof — Presumptions — Of innocence

§21 Under the Criminal Code an accused is deemed not guilty until convicted of the of-fence.[FN1] At common law, one is presumed innocent until guilt is proven beyond a reason-able doubt.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 6(1)(a) [re-en. c. 27 (1st Supp.), s. 4; am.1995, c. 22, Sched. I, item 1]; R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.)(evidential burden on accused not affronting presumption of innocence).

FN2. R. v. Dick (1947), 2 C.R. 417 (Ont. C.A.); R. v. Oakes, [1986] 1 S.C.R. 103(S.C.C.) (presumption of innocence having long-standing recognition at common law);see also Canadian Charter of Rights and Freedoms, see R.S.C. 1985, App. II (No. 44), s.11(d) (any person charged with offence presumed innocent until proven guilty); R. v.Schwartz, [1988] 2 S.C.R. 443 (S.C.C.) (proof for gun registration certificate not viola-tion of presumption or Charter); Trumbley v. Metropolitan Toronto Police Force, [1987]2 S.C.R. 577 (S.C.C.) (presumption applying to all criminal and quasi-criminal proceed-ings); R. v. Downey, [1992] 2 S.C.R. 10 (S.C.C.) (mandatory presumption shifting evid-ential burden to accused may be constitutional).

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CED Criminal Law — Defences I.2.(f) Page 1


CED Criminal Law — Defences I.2.(g).(i)Canadian Encyclopedic Digest


2 — Defences(g) — Persuasive and Evidential Burdens

(i) — General


To check the currency of the title, please refer to the subject title page.I.2.(g).(i)

See Canadian Abridgment: CRM.IV.19.c Criminal law — Charter of Rights and Freedoms —Presumption of innocence [s. 11(d)] — Evidentiary burdens; CRM.IV.19.d Criminal law —Charter of Rights and Freedoms — Presumption of innocence [s. 11(d)] — Persuasive bur-dens; EVD.II.5 Evidence — Proof — Persuasive burden; EVD.II.6 Evidence — Proof —Evidentiary burden

§22 In judicial proceedings one or more burdens concerning evidence arise. A major burdenor legal persuasive burden that never shifts requires the party with that burden to prove or dis-prove what the law and circumstances require. There can also be a minor burden, or evidentialburden, which is not a burden of proof but a burden to introduce evidence of some matter suf-ficient to raise a triable issue.[FN1]

FN1. R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.) (Narcotic Control Act, R.S.C. 1970, c.N-1, s. 8, unconstitutional as offending presumption of innocence set out in s. 11(d) ofCharter of Rights); see also R. v. Latour, [1951] S.C.R. 19 (S.C.C.); Woolmington v.Director of Public Prosecutions, [1935] A.C. 462 (U.K. H.L.) (evidential burden callingfor evidence which raises reasonable doubt); R. v. Downey, [1992] 2 S.C.R. 10 (S.C.C.).

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CED Criminal Law — Defences I.2.(g).(i) Page 1


CED Criminal Law — Defences I.2.(g).(ii)Canadian Encyclopedic Digest



(ii) — Burden on Crown


To check the currency of the title, please refer to the subject title page.I.2.(g).(ii)


§23 There is a burden of proof on the Crown that is a persuasive and permanent burden re-quiring the Crown to prove or establish ultimately its case beyond all reasonable doubt.[FN1]

§24 If at the end of, and on the whole of, the case there is reasonable doubt created by theevidence given by the prosecution or defence, or given in cross-examination, the prosecutionhas not made out its case and the accused is entitled to an acquittal.[FN2]

§25 Because the accused has the presumption of innocence, the prosecution normally bearsboth evidential and legal burden with respect to the essential elements of the offence. Theevidential burden is to adduce sufficient evidence that the accused committed the act with thenecessary intent, while the legal burden is to prove these matters beyond a reasonabledoubt.[FN3]

FN1. R. v. Starr (2000), 36 C.R. (5th) 1 (S.C.C.) (reasonable doubt closer to absolutecertainty); R. v. Roberts (2004), 185 C.C.C. (3d) 382 (Alta. C.A.); affirmed (2005), 191C.C.C. (3d) 466 (S.C.C.); R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.); R. v. Gordon(1983), 4 C.C.C. (3d) 492 (Ont. C.A.) (proof beyond reasonable doubt and to moral cer-tainty synonymous); R. v. Morin, [1988] 2 S.C.R. 345 (S.C.C.) (jury to be instructed thatfacts not to be examined separately and in isolation to criminal standard, but as whole);R. v. Fischer (1987), 31 C.C.C. (3d) 303 (Sask. C.A.) (proof to "satisfaction" not to beequated with proof beyond reasonable doubt); R. v. R. (R.L.) (1988), 65 C.R. (3d) 235(Ont. C.A.); affirmed [1991] 1 S.C.R. 115 (S.C.C.) (standard of proof not varying withseriousness of offence); R. v. Brydon (1995), 101 C.C.C. (3d) 481 (S.C.C.).

CED Criminal Law — Defences I.2.(g).(ii) Page 1


FN2. Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (U.K. H.L.); R.v. Evans (1993), 21 C.R. (4th) 321 (S.C.C.) (charge to jury on reasonable doubt not to beprocess of isolation); R. v. Lifchus (1997), 9 C.R. (5th) 1 (S.C.C.) (jury to be properly in-structed on Crown burden).

FN3. R. v. Boyle (1983), 35 C.R. (3d) 34 (Ont. C.A.); see also R. v. Cullum (1973), 14C.C.C. (2d) 294 (Ont. Co. Ct.) (Crown having onus throughout to prove each element ofoffence beyond reasonable doubt); R. v. Morin, [1988] 2 S.C.R. 345 (S.C.C.).

END OF DOCUMENT

CED Criminal Law — Defences I.2.(g).(ii) Page 2


CED Criminal Law — Defences I.2.(g).(iii)Canadian Encyclopedic Digest



(iii) — Burden on Defence


To check the currency of the title, please refer to the subject title page.I.2.(g).(iii)


§26 Generally speaking, no onus lies upon an accused in criminal proceedings to prove or dis-prove any fact. It is sufficient for acquittal if any of the facts which, if they existed, wouldconstitute the offence with which he or she is charged are not proved.[FN1] This general ruleis, however, subject to exceptions created by the common law and statutory enactments thatmay place evidentiary or persuasive burdens on the defence.[FN2]

§27 The law creates various rebuttable presumptions against an accused to be met under avariety of burdens. An accused may be required merely to raise a reasonable doubt as to theexistence of the presumed fact. Secondly, he or she may have an evidentiary burden to adducesufficient evidence to bring into question the truth of the presumed fact. Finally, he or shemay have a legal or persuasive burden to prove on a balance of probabilities the non-existenceof the presumed fact.[FN3]

§28 Where the law provides for a legal or persuasive burden on the accused,[FN4] the burdenof proof on the accused will be on a balance of probabilities.[FN5]

§29 Where an accused wishes to raise a defence that does not arise on the evidence in the casefor the Crown, he or she has an evidential burden to introduce evidence to make the defence atriable issue. The test respecting the evidential burden is whether there is some evidence onthe record upon which a properly instructed jury, acting reasonably, could acquit on the basisof that defence.[FN6]

§30 Where the offence charged is a public welfare offence of strict liability there is a burdenon the defence to prove due diligence, or all reasonable care, on a balance of probabilit-

CED Criminal Law — Defences I.2.(g).(iii) Page 1


ies.[FN7]

FN1. Public Prosecutor v. Yuvaraj, [1970] A.C. 913 (Eng. P.C.); R. v. Johnson (1993),79 C.C.C. (3d) 42 (Ont. C.A.); leave to appeal refused (1993), 84 C.C.C. (3d) vi (S.C.C.)(silence of accused not filling in missing elements of offence); R. v. Anderson (2003), 19C.R. (6th) 152 (Ont. C.A.) (no burden on defence that defence true).

FN2. R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.); R. v. Osolin (1993), 86 C.C.C. (3d) 481(S.C.C.) (defence of mistaken belief in consent requiring air of reality); see also Crimin-al Code, R.S.C. 1985, c. C-46, s. 794(2) (burden of proving exception, exemption, pro-viso, excuse or qualification on defendant); R. v. Appleby, [1972] S.C.R. 303 (S.C.C.);Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (U.K. H.L.) (insanitybeing exception to general rule that Crown carrying onus of proof); Smythe v. R., [1941]S.C.R. 17 (S.C.C.) (insanity when raised by defence to be proved on balance of probabil-ities); R. v. Hundt, [1971] 3 W.W.R. 741 (Alta. C.A.) (burden of defence to prove excep-tions or excuses); R. v. Daniels (1990), 60 C.C.C. (3d) 392 (B.C. C.A.) (Crown need notprove accused not having fisheries permit).

FN3. R. v. Romeo, [1991] 1 S.C.R. 86 (S.C.C.) (burden of proof for insanity defenceconstitutional); R. v. Keegstra, [1990] 3 S.C.R. 697 (S.C.C.) (reverse onus provision val-id); Bergeron v. Québec (Procureur général) (1995), 101 C.C.C. (3d) 69 (Que. C.A.)(provincial offence reversing onus of proof on element of intent; legislation read down toimpose evidential burden on accused); see also R. v. Andrews, [1990] 3 S.C.R. 870(S.C.C.); R. v. Holmes, [1988] 1 S.C.R. 914 (S.C.C.); R. v. Schwartz, [1988] 2 S.C.R.443 (S.C.C.) (some reverse onus provisions not violating Charter); but see R. v. Whyte,[1988] 2 S.C.R. 3 (S.C.C.) (reverse onus provision concerning matter affecting culpabil-ity unconstitutional).

FN4. R. v. Proudlock, [1979] 1 S.C.R. 525 (S.C.C.); Perka v. R., [1984] 2 S.C.R. 232(S.C.C.) (accused bearing only evidential burden for justification or excuse); R. v.Downey, [1992] 2 S.C.R. 10 (S.C.C.) (presumption shifting evidential burden to accusedmay be constitutional); R. v. Schwartz, [1988] 2 S.C.R. 443 (S.C.C.) (those with eviden-tial burden not required to prove anything; only required to point out evidence which issuggestive); R. v. R. (J.D.), [1987] 1 S.C.R. 918 (S.C.C.) (accused carrying evidentialburden for mistake of fact).

FN5. R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.); R. v. Appleby, [1972] S.C.R. 303(S.C.C.).

FN6. R. c. Fontaine (2004), 18 C.R. (6th) 203 (S.C.C.) ("air of reality test" adds nothingto this standard).

FN7. R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.); R. v. Wholesale TravelGroup Inc., [1991] 3 S.C.R. 154 (S.C.C.) (onus on accused to prove defence on balanceof probabilities constitutional); see also R. v. Ellis-Don Ltd., [1992] 1 S.C.R. 840(S.C.C.); R. v. Martin, [1992] 1 S.C.R. 838 (S.C.C.); R. v. MacMillan Bloedel Ltd.(2002), 5 C.R. (6th) 129 (B.C. C.A.); R. v. Tavares (1996), 451 A.P.R. 154 (Nfld. C.A.).



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CED Criminal Law — Defences I.2.(h).(i)Canadian Encyclopedic Digest


2 — Defences(h) — Procedure

(i) — Right to be Present at Trial


To check the currency of the title, please refer to the subject title page.I.2.(h).(i)

See Canadian Abridgment: CRM.VIII.3.f Criminal law — Trial procedure — Rights of ac-cused — Presence at trial

§31 An accused has the right to be present during the whole of his or her trial.[FN1] This rightprovides for the accused to be present and have direct knowledge of anything that transpires inthe course of the trial which could involve his or her vital interests.[FN2]

§32 Proceedings that involve the accused's vital interests are the arraignment, plea, empanel-ling the jury, reception of evidence, voir dire proceedings, rulings on evidence, arguments ofcounsel, addresses and charges to the jury, reception of the verdict, and sentence proceedingswhere guilt is found. Also included are proceedings conducted by the judge during the trial forthe purpose of investigating matters that have occurred outside the trial but which may affectits fairness. Events which, although in one sense part of the trial, have no bearing on the sub-stantive conduct of the trial, or on the issue of guilt or innocence, are excluded.[FN3]

FN1. Criminal Code, R.S.C. 1985, c. C-46, ss. 650(1) [re-en. 2003, c. 21, s. 12], (2) [am.1991, c. 43, Sched., s. 4] (exceptions), s. 650.01 [en. 2002, c. 13, s. 61]; R. v. Gates(2002), 2 C.R. (6th) 333 (B.C. C.A.); leave to appeal refused (2002), 305 N.R. 399(note) (S.C.C.) (judgment over phone improper); see also Criminal Law — Procedure.

FN2. R. v. Côté , [1986] 1 S.C.R. 2 (S.C.C.); R. v. Chambers, [1990] 2 S.C.R. 1293(S.C.C.) (inquiry by trial judge not part of trial; however, better approach to include ac-cused); R. v. Butler (1993), 21 C.R. (4th) 27 (Man. Q.B.) (accused may be absent fromtrial for medical reasons); R. v. Fecteau (1989), 71 C.R. (3d) 67 (Ont. H.C.) (accused notpresent where guilty plea by use of closed-circuit television); R. v. Bitternose (2009),2009 CarswellSask 274 (Sask. C.A.) (accused refusing to remain present in trial; ob-serving trial proceedings from separate room by audio-visual link; measures taken tocompensate for accused's absence; accused having means and opportunity to acquire dir-ect knowledge of all matters affecting his vital interests).

CED Criminal Law — Defences I.2.(h).(i) Page 1


FN3. R. v. Pilotte (2002), 163 C.C.C. (3d) 225 (Ont. C.A.); leave to appeal refused(2003), 2003 CarswellOnt 430 (S.C.C.) (no right to be present at closed meeting to dis-cuss claim of privilege); R. v. Côté, [1986] 1 S.C.R. 2 (S.C.C.) (new trial ordered wherejudge examining two jurors on partiality in absence of accused); R. v. Legere (1994), 95C.C.C. (3d) 139 (N.B. C.A.) (in absence of accused, judge refusing adjournment and re-viewing questions to be asked of jurors; no breach); R. v. Quick (1993), 82 C.C.C. (3d)51 (B.C. C.A.); leave to appeal refused (1994), 88 C.C.C. (3d) vi (S.C.C.) (chambers dis-cussions concerning procedural issues and evidence not affecting vital interests); seealso R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.); leave to appeal refused(1982), 45 N.R. 629n (S.C.C.) (improper to examine jurors on matter of vital interest inpresence of counsel but in absence of accused); R. v. Tzimopoulos (1986), 54 C.R. (3d) 1(Ont. C.A.); leave to appeal refused (1987), 54 C.R. (3d) xxvii (S.C.C.) (where trial con-tinuing in absence of absconding accused, no breach of Charter); R. v. Garofoli, [1990] 2S.C.R. 1421 (S.C.C.) (trial may continue in absence of absconded accused); R. v. Halli-day (1992), 77 C.C.C. (3d) 481 (Man. C.A.) (note from jury matter of vital interest;however, error procedural and not prejudicial).

END OF DOCUMENT

CED Criminal Law — Defences I.2.(h).(i) Page 2


CED Criminal Law — Defences I.2.(h).(ii)Canadian Encyclopedic Digest



(ii) — Right to Full Answer and Defence


To check the currency of the title, please refer to the subject title page.I.2.(h).(ii)

See Canadian Abridgment: CRM.IV.12.c Criminal law — Charter of Rights and Freedoms —Life, liberty and security of person [s. 7] — Right to make full answer and defence;CRM.VIII.3.h Criminal law — Trial procedure — Rights of accused — Right to make full an-swer and defence

§33 An accused is entitled, after the close of the case for the prosecution, to make full answerand defence personally or by counsel.[FN1] The right to make full answer and defence hasconstitutional dimensions. A violation of the right may entitle the accused to a stay of pro-ceedings if it is one of those clearest of cases where a stay is the only appropriate rem-edy.[FN2] An order for production or an adjournment is more often the appropriate remedy attrial,[FN3] but is no longer available on an appeal from conviction. The accused is entitled toa remedy upon establishing an impairment of the right to make full answer and defence butthe degree of impairment or prejudice to his or her rights must be assessed and considered inrelation to the remedy sought. An accused who seeks a stay of proceedings must prove on abalance of probabilities an impairment of the right to make full answer and defence and irre-parable prejudice to that right. If the accused seeks a new trial, he or she need only persuadethe appellate court of the reasonable possibility that the breach affected the outcome at trial orthe overall fairness of the trial process.[FN4]

§34 Full answer and defence is, firstly, the ability to probe the evidence of the Crown.Secondly, it is the right to adduce all evidence not known to be false that may raise a convic-tion of innocence or reasonable doubt of guilt. Finally, it is the right to make submissions tothe trier of fact on the law and on the evidence.[FN5]

§35 The right to full answer and defence includes the right to full cross-examination of pro-secution witnesses,[FN6] the right to call witnesses and the accused to testify,[FN7] the rightnot to be taken by surprise by newly discovered evidence or evidence not disclosed at the pre-liminary,[FN8] the right to present argument[FN9] and the right not to be unduly interferedwith by the trial judge by excessive judicial cross-examination of witnesses.[FN10] Disclosureof the contents of a sealed wiretap packet has also been found to be necessary for an accused

CED Criminal Law — Defences I.2.(h).(ii) Page 1


to make full answer and defence.[FN11]

§36 Full answer and defence also includes the right to the assistance of able and effectivecounsel.[FN12] The right to assistance of effective counsel has common law, statutory andconstitutional roots.[FN13]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 650(3); R. v. Seaboyer (1991), 66 C.C.C.(3d) 321 (S.C.C.) (s. 7 of Charter grounds full answer and defence).

FN2. Canadian Charter of Rights and Freedoms, see R.S.C. 1985, App. II (No. 44), ss. 7,11(d), 24(1); R. v. La (1997), 8 C.R. (5th) 155 (S.C.C.) (on facts of case, loss of tape re-cording not amounting to abuse of process or denying right to full answer and defence;stay not warranted); R. v. Wicksted (1996), 29 O.R. (3d) 144 (Ont. C.A.); affirmed(1997), 31 O.R. (3d) 800 (S.C.C.) (accused's rights violated but facts not warranting stayof proceedings; documents and records remaining available; adjournment appropriateremedy); R. v. Carosella (1997), 4 C.R. (5th) 139 (S.C.C.) (sexual assault crisis centreadopting policy of taking misleading notes and shredding files in which application forproduction possible; destruction of file preventing accused from making full answer anddefence; stay of proceedings entered); R. v. Majid (1997), 119 C.C.C. (3d) 161 (Sask.Q.B.) (herpes simplex encephalitis irreparably damaging accused's memory; tapes andtranscripts of accused's evidence at first trial available; no prejudice sufficient to denyaccused right to make full answer and defence; stay denied); see also R. v. McQuaid(1998), 13 C.R. (5th) 217 (S.C.C.) (accused having to demonstrate on balance of probab-ilities that right to disclosure infringed and that failure to disclose impairing right tomake full answer and defence; burden discharged if accused showing reasonable possib-ility that non-disclosure affecting outcome at trial or overall fairness of trial process;lack of due diligence by defence counsel in pursuing Crown disclosure significant factorin assessing overall fairness); see also Constitutional Law.

FN3. R. v. McQuaid (1998), 13 C.R. (5th) 217 (S.C.C.); R. v. Bjelland (2009), 2009CarswellAlta 1110 (S.C.C.) (Crown breaching accused's right to make full answer anddefence; appropriate remedy adjournment and disclosure order rather than exclusion ofevidence).

FN4. R. v. McQuaid (1998), 13 C.R. (5th) 217 (S.C.C.); see also R. v. Carosella (1997),4 C.R. (5th) 139 (S.C.C.); R. v. Baxter (1997), 115 C.C.C. (3d) 64 (B.C. C.A.) (Crownfailing to disclose statutory declarations of alleged co-conspirators, correspondence andundertakings until more than one week into trial; late disclosure impairing accused'sability to make full answer and defence; new trial ordered).

FN5. R. v. Ford (1993), 78 C.C.C. (3d) 481 (B.C. C.A.); leave to appeal refused (1993),157 N.R. 399 (note) (S.C.C.) (production of interview notes after Crown's case not in-fringement); R. v. Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.) (accused entitled to pro-duction of all relevant information held by Crown); R. v. Romain (1992), 75 C.C.C. (3d)379 (Ont. Gen. Div.) (failure to disclose witness statement; new trial ordered); R. v.O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.) (full answer and defence including right to



full disclosure of Crown's case; non-disclosure of material information, shown on bal-ance of probabilities to adversely affect accused's right to make full answer and defence,infringing accused's rights under s. 7 of Charter); R. v. Chaplin (1994), 36 C.R. (4th) 201(S.C.C.) (Crown must disclose all evidence, whether inculpatory or exculpatory, unlessbeyond control of prosecution, clearly irrelevant or privileged); R. v. Gray (1995), 43C.R. (4th) 52 (B.C. S.C.) (Crown failing over lengthy period of time to disclose evidencewhich might assist accused in making full answer and defence; non-disclosure andlengthy delay amounting to abuse of process warranting stay of proceedings); R. v.Leipert (1997), 4 C.R. (5th) 259 (S.C.C.) (Crown's duty of disclosure subject to informerprivilege unless accused bringing himself within "innocence at stake" exception); seealso R. c. Filion, [1992] R.J.Q. 1161 (Que. C.A.).

FN6. R. v. Darrach, [2000] 2 S.C.R. 443 (S.C.C.); Lizotte v. R., [1951] S.C.R. 115(S.C.C.) (improper for trial judge to interfere with relevant cross-examination); R. v.Carosella (1997), 4 C.R. (5th) 139 (S.C.C.) (sexual assault crisis centre destroying notesof interview with complainant to forestall possibility of having to produce records tocourt; destruction of file preventing accused from using notes to prepare cross-ex-amination question, testing complainant's credibility, etc.; stay of proceedings entered);see also R. v. Anderson, [1938] 2 W.W.R. 49 (Man. C.A.); R. v. Giffin (1986), 69 A.R.158 (Alta. C.A.); R. c. Bourassa (1991), 67 C.C.C. (3d) 143 (Que. C.A.) (accused shouldnot be excluded during cross-examination).

FN7. R. v. Cook (1960), 33 C.R. 126 (Alta. C.A.) (accused having absolute right to callany witnesses); R. v. Morrissey (2003), 177 C.C.C. (3d) 428 (Ont. S.C.J.); see alsoCanada Evidence Act, R.S.C. 1985, c. C-5, s. 4(1) (accused competent witness for de-fence).

FN8. R. v. Caccamo, [1976] 1 S.C.R. 786 (S.C.C.); R. v. Demeter (1975), 10 O.R. (2d)321 (Ont. C.A.); affirmed [1978] 1 S.C.R. 538 (S.C.C.); R. v. Rose (1998), 20 C.R. (5th)246 (S.C.C.).

FN9. Aucoin v. R., [1979] 1 S.C.R. 554 (S.C.C.); see also R. v. Gronka (1979), 45C.C.C. (2d) 573 (Ont. C.A.); R. v. Conti (1986), 200 A.P.R. 118 (N.S. Co. Ct.).

FN10. R. v. Stewart (1991), 62 C.C.C. (3d) 289 (Ont. C.A.) (excessive intervention bytrial judge; new trial ordered); R. v. Scianna (1989), 47 C.C.C. (3d) 81 (Ont. C.A.)(constant and discourteous interference by judge improper); R. v. Turlon (1989), 70 C.R.(3d) 376 (Ont. C.A.) (extensive judicial cross-examination improper); R. v. Garner,[1994] 9 W.W.R. 350 (Sask. Q.B.) (trial judge vigorously intervening in examination-in-chief of defence expert witness; new trial ordered).

FN11. R. v. Dersch, [1990] 2 S.C.R. 1505 (S.C.C.) (accused entitled to wiretap authoriz-ation and affidavit as matter of full answer and defence); R. v. Durette (1994), 28 C.R.(4th) 1 (S.C.C.) (full answer and defence providing for extensive and complete disclos-ure; minimal wiretap editing permissible); see also R. v. Garofoli, [1990] 2 S.C.R. 1421(S.C.C.); R. v. Aranda (1992), 11 C.R. (4th) 339 (Ont. Gen. Div.) (affidavit must be



provided prior to election by accused); R. v. McClure (2001), 40 C.R. (5th) 1 (S.C.C.)(access into files of other lawyer).

FN12. R. v. Newman (1993), 20 C.R. (4th) 370 (Ont. C.A.); R. v. Sechon (1995), 104C.C.C. (3d) 554 (Que. C.A.) (s. 7 of Charter entitling accused to counsel if length orcomplexity of trial or circumstances of accused preventing fair trial without assistance ofcounsel; if legal aid denied in such circumstances, proceedings should be stayed untilcounsel provided); R. v. Osborne (2003), 181 C.C.C. (3d) 108 (N.B. C.A.); R. v. Peter-man (2004), 185 C.C.C. (3d) 352 (Ont. C.A.); R. c. Hajian (1995), 104 C.C.C. (3d) 562(Que. S.C.); R. v. W. (W.) (1995), 100 C.C.C. (3d) 225 (Ont. C.A.) (incompetence ofcounsel depriving accused of right to full answer and defence if reasonable probability ofdifferent result but for counsel's deficient performance); see also R. c. Brigham (1992),18 C.R. (4th) 309 (Que. C.A.) (incompetence of counsel may require new trial); R. v.Silvini (1991), 9 C.R. (4th) 233 (Ont. C.A.).

FN13. R. v. W. (W.) (1995), 100 C.C.C. (3d) 225 (Ont. C.A.) (allegation on appeal thatrepresentation of two accused by same counsel creating conflict of interest requiring ac-cused to show actual, as opposed to possible, miscarriage of justice).

END OF DOCUMENT



CED Criminal Law — Defences I.2.(h).(iii).ACanadian Encyclopedic Digest



(iii) — PleasA — Permitted Pleas


To check the currency of the title, please refer to the subject title page.I.2.(h).(iii).A

See Canadian Abridgment: CRM.VII.19 Criminal law — Pre-trial procedure — Pleas

§37 An accused who is called upon to plead may plead guilty or not guilty, and may alsomake a special plea of autrefois acquit, autrefois convict or pardon.[FN1] An accused who ischarged with defamatory libel may plead, in writing, justification, i.e., that the matter was trueand published for the public benefit. A plea of not guilty may also be pleaded with a justifica-tion plea to a charge of defamatory libel.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, ss. 606 [am. R.S.C. 1985, c. 27 (1st Supp.),s. 125; 2002, c. 13, s. 49(1), (2)], 607 [am. R.S.C. 1985, c. 27 (1st Supp.), s. 126; c. 30(3rd Supp.), s. 2; 1995, c. 22, Sched. I, items 19, 20; 2000, c. 24, s. 45]; R. v. Innocente(2004), 187 C.C.C. (3d) 533 (N.S. S.C.) (autrefois to be established on balance of prob-abilities).

FN2. Criminal Code, R.S.C. 1985, c. C-46, ss. 611, 612.

END OF DOCUMENT

CED Criminal Law — Defences I.2.(h).(iii).A Page 1


CED Criminal Law — Defences I.2.(h).(iii).BCanadian Encyclopedic Digest



(iii) — PleasB — Plea of Not Guilty


To check the currency of the title, please refer to the subject title page.I.2.(h).(iii).B

See Canadian Abridgment: CRM.VII.19.c Criminal law — Pre-trial procedure — Pleas —Plea of not guilty

§38 A plea of not guilty is a general denial and encompasses all defences or any ground of de-fence for which a special plea is not provided.[FN1] This includes res judicata, issue estoppeland the rule against multiple convictions.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 613; R. v. Denda (1986), 17 O.A.C. 222(Ont. C.A.) (co-accused pleading guilty in front of jury panel; trial judge ought to havedirected that plea not evidence against accused); see also R. c. Lessard (1979), 50 C.C.C.(2d) 175 (Que. C.A.); R. v. Jamieson (1987), 79 N.S.R. (2d) 304 (N.S. C.A.).

FN2. R. v. Quinn (1905), 11 O.L.R. 242 (Ont. C.A.) (defence of res judicata allowed); R.v. Duhamel, [1984] 2 S.C.R. 555 (S.C.C.) (res judicata); R. v. Grdic, [1985] 1 S.C.R. 810(S.C.C.) (defence of issue estoppel upheld); R. v. Kienapple, [1975] 1 S.C.R. 729(S.C.C.) (multiple convictions for same delict precluded).

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CED Criminal Law — Defences I.2.(h).(iii).B Page 1


CED Criminal Law — Defences I.2.(h).(iii).CCanadian Encyclopedic Digest



(iii) — PleasC — Plea of Guilty


To check the currency of the title, please refer to the subject title page.I.2.(h).(iii).C

See Canadian Abridgment: CRM.VII.19.b Criminal law — Pre-trial procedure — Pleas —Guilty plea

§39 A plea of guilty is a complete admission of all essential facts or material averments of theoffence charged.[FN1] In itself, a guilty plea carries with it an admission of the essential legalingredients of the offence admitted by the plea, and no more.[FN2]

FN1. R. v. Grant (1924), 42 C.C.C. 344 (N.S. C.A.); R. v. K. (S.) (1995), 99 C.C.C. (3d)376 (Ont. C.A.) (guilty plea not appropriate where accused not willing to admit to factssupporting conviction; trial judge erring in accepting plea); R. v. Gold (2004), 197B.C.A.C. 37 (B.C. C.A.) (guilty plea neither unequivocal nor informed; plea set aside);see also McKenzie, Re (1935), 9 M.P.R. 559 (N.S. C.A.); Adgey v. R., [1975] 2 S.C.R.426 (S.C.C.) (guidelines given where judge should order plea of not guilty); R. v.Simpson, [1988] 1 S.C.R. 3 (S.C.C.) (jury should be warned that guilty plea by co-accused not evidence against other accused).

FN2. R. v. Gardiner (1979), 52 C.C.C. (2d) 183 (Ont. C.A.); affirmed [1982] 2 S.C.R.368 (S.C.C.) (where facts on guilty plea disputed, Crown having onus to prove thembeyond reasonable doubt); R. v. Lamoureux (1984), 40 C.R. (3d) 369 (Que. C.A.) (guiltyplea must always be free and voluntary); R. v. Rajaeefard (1996), 104 C.C.C. (3d) 225(Ont. C.A.) (trial judge improperly pressuring accused to plead guilty; guilty plea notgiven freely and voluntarily).

END OF DOCUMENT

CED Criminal Law — Defences I.2.(h).(iii).C Page 1


CED Criminal Law — Defences I.2.(h).(iii).DCanadian Encyclopedic Digest



(iii) — PleasD — Refusal to Plead


To check the currency of the title, please refer to the subject title page.I.2.(h).(iii).D

See Canadian Abridgment: CRM.VII.19.c Criminal law — Pre-trial procedure — Pleas —Plea of not guilty

§40 Where an accused refuses to plead or does not answer directly, a plea of not guilty isentered on his or her behalf.[FN1]


END OF DOCUMENT

CED Criminal Law — Defences I.2.(h).(iii).D Page 1


CED Criminal Law — Defences I.2.(h).(iii).ECanadian Encyclopedic Digest



(iii) — PleasE — Plea of Guilty to Included or Other Offence


To check the currency of the title, please refer to the subject title page.I.2.(h).(iii).E

See Canadian Abridgment: CRM.VII.19.b.iv Criminal law — Pre-trial procedure — Pleas —Guilty plea — Guilty plea to lesser offence

§41 An accused or defendant may plead not guilty to the charged offence but guilty to anotheroffence arising out of the same transaction. Such a plea may be accepted by the court wherethe prosecution consents.[FN1] Where there is no consent given by the prosecution, the trialmust proceed on the charged offence.[FN2]

§42 Where a plea has been offered to a lesser offence but not accepted, the plea should beheld in abeyance pending trial of the more serious offence. If the accused is acquitted, theguilty plea may then be recorded on the included offence.[FN3] The contrary view is that ifthe plea is not accepted it should be considered a nullity.[FN4]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 606(4) [re-en. R.S.C. 1985, c. 27 (1stSupp.), s. 125].

FN2. R. v. Loyer, [1978] 2 S.C.R. 631 (S.C.C.); R. v. Rowbotham (1994), 30 C.R. (4th)141 (S.C.C.) (proper practice with jury); R. v. Garnett (1995), 15 M.V.R. (3d) 198 (B.C.S.C. [In Chambers]) (provincial offences included).

FN3. R. v. Loyer, [1978] 2 S.C.R. 631 (S.C.C.); see also R. v. Cole, [1965] 2 Q.B. 388(Eng. Q.B.); R. v. St-Jean (1970), 15 C.R.N.S. 194 (Que. C.A.).

FN4. R. v. MacDonald, 28 C.R.N.S. 324 (Ont. C.A.); affirmed [1977] 2 S.C.R. 832(S.C.C.); R. v. Hazeltine, [1967] 2 Q.B. 857 (Eng. Q.B.).

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CED Criminal Law — Defences I.2.(h).(iii).E Page 1


CED Criminal Law — Defences I.2.(h).(iii).FCanadian Encyclopedic Digest



(iii) — PleasF — Withdrawal of Guilty Plea


To check the currency of the title, please refer to the subject title page.I.2.(h).(iii).F

See Canadian Abridgment: CRM.VII.19.b.ii.C Criminal law — Pre-trial procedure — Pleas— Guilty plea — Duties of court — Permitting withdrawal of plea; CRM.XI.5.o.xi Criminallaw — Post-trial procedure — Appeal from conviction or acquittal — Procedure on appeal —Permitting withdrawal or change of plea

§43 A guilty plea may be withdrawn at the discretion of the trial judge before sentence.[FN1]An accused may be permitted to do so if there are valid grounds raised in the applica-tion.[FN2] When an accused has established that the plea was entered in error, under improperinducements or threats, or where the accused was intoxicated, the application will suc-ceed.[FN3]

FN1. R. v. Thibodeau, [1955] S.C.R. 646 (S.C.C.); see also Adgey v. R., [1975] 2 S.C.R.426 (S.C.C.); R. v. T. (R.) (1992), 17 C.R. (4th) 247 (Ont. C.A.) (guilty plea valid andnot withdrawable when voluntary, unequivocal and informed); R. v. Taubler (1987), 20O.A.C. 64 (Ont. C.A.) (withdrawal denied where accused treated reasonably and withpatience).

FN2. R. v. Bamsey, [1960] S.C.R. 294 (S.C.C.); R. v. Hick, [1991] 3 S.C.R. 383 (S.C.C.)(where co-accused acquitted, accused not permitted to withdraw plea as principal); R. v.Meers (1991), 64 C.C.C. (3d) 221 (B.C. C.A.) (plea may be withdrawn if based on mis-understanding); R. v. Atlay (1992), 70 C.C.C. (3d) 553 (B.C. C.A.) (judge may refuse ap-plication); R. v. Hughes, 76 A.R. 294 (Alta. C.A.) (concessions by Crown or police noteroding plea); R. v. K. (S.) (1995), 99 C.C.C. (3d) 376 (Ont. C.A.) (guilty plea set asideon appeal; accused unaware of contradiction between plea of guilty and denial of guilt);R. c. Laperrière (1996), 109 C.C.C. (3d) 347 (S.C.C.) (defence counsel acting in self-interest pressuring accused into entering guilty pleas; pleas quashed).

FN3. R. v. Lamoureux (1984), 40 C.R. (3d) 369 (Que. C.A.); R. v. Hansen (1977), 37C.C.C. (2d) 371 (Man. C.A.) (accused in disturbed state of mind permitted to change

CED Criminal Law — Defences I.2.(h).(iii).F Page 1


plea); R. c. Laperrière (1996), 109 C.C.C. (3d) 347 (S.C.C.) (defence counsel acting inself-interest pressuring accused into entering guilty pleas; pleas quashed); R. v. Rajaee-fard (1996), 104 C.C.C. (3d) 225 (Ont. C.A.) (trial judge improperly pressuring articlingstudent appearing as agent for accused; withdrawal of guilty plea permitted); see also R.v. Kavanagh (1955), 22 C.R. 396 (Ont. C.A.) (accused pleading guilty under influence ofdrugs; new trial ordered); R. v. MacAdam (1986), 181 A.P.R. 332 (P.E.I. S.C.) (memoryloss due to accident may provide basis for withdrawal of plea); R. v. Toussaint (1984),40 C.R. (3d) 230 (Que. C.A.) (conduct of trial judge and counsel inducing plea); R. v.Huynh (1986), 75 A.R. 238 (Alta. C.A.) (erroneous translation invalidating guilty plea);R. v. Hunt (2004), 346 A.R. 45 (Alta. C.A.) (where there has been unequivocal free andvoluntary admission of facts constituting offence, unexpected legal consequence not al-lowing withdrawal of guitly plea); R. v. Hoang (2003), 182 C.C.C. (3d) 69 (Alta. C.A.)(requirement that accused understand nature and consequences of guilty plea not require-ment to canvas every conceivable consequence which may result or may be foregone).

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CED Criminal Law — Defences I.2.(h).(iii).F Page 2


CED Criminal Law — Defences II.1.(a)Canadian Encyclopedic Digest

Criminal Law — DefencesII — Exemptions

1 — Conjugal Unity(a) — General


To check the currency of the title, please refer to the subject title page.II.1.(a)

See Canadian Abridgment: EVD.X.4.d.ii.A Evidence — Witnesses — Competence and com-pellability — Interested person — Criminal proceedings — Spouse of accused; CRM.VII.5.j.iiCriminal law — Pre-trial procedure — Admissibility of private communications — Privilegedcommunications — Spouses; EVD.XVII.2.b Evidence — Privilege — Privileged communica-tions — Husband and wife

§44 Under English common law a husband and wife were, for many purposes, one person. Asa consequence, there were a number of criminal offences which they were incapable of com-mitting.[FN1] The doctrine of conjugal unity has been given effect in Canadian criminallaw[FN2] and under the law governing the admissibility of evidence of one spouse when itconcerns a charge against the other.[FN3]

FN1. R. v. Kowbel, [1954] S.C.R. 498 (S.C.C.) (with respect to each other, husband andwife not capable of theft or conspiracy).

FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 159(2)(a) [re-en. R.S.C. 1985, c. 19 (3rdSupp.), s. 3] (husband and wife under certain conditions cannot be convicted of anal in-tercourse with each other); see also R. v. Reinke (1972), 8 R.F.L. 278 (Ont. Co. Ct.)(indictment charging wife with defamatory libel against husband quashed as at commonlaw libel not possible between spouses).

FN3. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4 [am. R.S.C. 1985, c. 19 (3rdSupp.), s. 17; 2002, c. 1, s. 166].

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CED Criminal Law — Defences II.1.(a) Page 1


CED Criminal Law — Defences II.1.(b)Canadian Encyclopedic Digest


1 — Conjugal Unity(b) — Conspiracy Between Spouses


To check the currency of the title, please refer to the subject title page.II.1.(b)

See Canadian Abridgment: CRM.VI.21.e.ii Criminal law — Offences — Conspiracy — Spe-cific defences — Husband and wife

§45 A husband and wife cannot be found guilty of conspiracy with each other, because theyform but one person and are presumed to have but one will.[FN1] A conspiracy can exist,however, between a husband and wife and a third party.[FN2]

FN1. R. v. Kowbel, [1954] S.C.R. 498 (S.C.C.) (conviction for conspiracy between hus-band and wife to commit forgery quashed); R. v. Barbeau (1996), 110 C.C.C. (3d) 69(Que. C.A.) (proving alleged conspiracy with husband and others requiring direct proofthat accused meeting or conspiring with others); but see R. v. O'Connor (1975), 23C.C.C. (2d) 110 (B.C. C.A.); leave to appeal refused (1975), 23 C.C.C. (2d) 110n(S.C.C.) (doctrine of conjugal unity not preventing possession for trafficking convictionwhere husband transporting to wife); R. v. Rowbotham (1988), 63 C.R. (3d) 113 (Ont.C.A.) (trial judge to instruct on spousal incompetency concerning conspiracy).

FN2. R. v. Chambers (1973), 11 C.C.C. (2d) 282 (Alta. T.D.); but see R. v. Amar (1969),7 C.R.N.S. 258 (B.C. C.A.) (wife not competent witness for prosecution where husbandand third party charged with conspiracy).

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CED Criminal Law — Defences II.1.(b) Page 1


CED Criminal Law — Defences II.1.(c).(i)Canadian Encyclopedic Digest


1 — Conjugal Unity(c) — Competence and Compellability

(i) — Common Law Rule


To check the currency of the title, please refer to the subject title page.II.1.(c).(i)

See Canadian Abridgment: EVD.X.4.d.ii.A Evidence — Witnesses — Competence and com-pellability — Interested person — Criminal proceedings — Spouse of accused

§46 Under common law, with some exceptions, one spouse was not competent or compellableto give evidence for or against the other spouse.[FN1]

FN1. R. v. Schell (2004), 188 C.C.C. (3d) 254 (Alta. C.A.) (separate and apart for severalyears, competent and compellable); R. v. Salituro, [1991] 3 S.C.R. 654 (S.C.C.)(irreconcilably separated but not divorced; spouse competent witness for Crown; com-mon law rule adjusted); R. v. Hawkins (1996), 2 C.R. (5th) 245 (S.C.C.); R. v. Grewal(1992), 78 C.C.C. (3d) 188 (Ont. Gen. Div.) (whether irreconcilably separated to be de-termined by trial judge); R. v. Edelenbos (2004), 187 C.C.C. (3d) 465 (Ont. C.A.); R. v.McGinty, [1986] 4 W.W.R. 97 (Y.T. C.A.) (spouse victim of assault; competent andcompellable under common law exception); R. v. Marchand (1980), 55 C.C.C. (2d) 77(N.S. C.A.) (divorced wife competent and compellable as to husband's acts during mar-riage); R. v. Pabani (1994), 89 C.C.C. (3d) 437 (Ont. C.A.); leave to appeal refused(1994), 91 C.C.C. (3d) vi (S.C.C.) (earlier statement that accused making during separa-tion from wife admissible; not precluded by s. 10 of Divorce Act); R. v. Jeffrey (1993),84 C.C.C. (3d) 31 (Alta. C.A.) (Crown need not prove irrevocable separation beyondreasonable doubt); R. v. Couture (2007), 2007 CarswellBC 1365 (S.C.C.); R. v. Martin(2009), 2009 CarswellSask 159 (Sask. C.A.) (accused and witness maintaining separateresidences but having intimate relationship; trial judge finding spousal incompetencyrule applying but witness competent; trial judge erring; spousal incompetency rule notapplying to common-law relationships).

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CED Criminal Law — Defences II.1.(c).(i) Page 1


CED Criminal Law — Defences II.1.(c).(ii)Canadian Encyclopedic Digest



(ii) — Statutory Rule


To check the currency of the title, please refer to the subject title page.II.1.(c).(ii)


§47 Under statutory law the spouse of an accused is a competent witness for the defence, butnot for the prosecution.[FN1] Where a marriage takes place after the event charged, thespouse or accused will be able to claim the common law rule of incompetency as a prosecu-tion witness, subject, however, to the statutory and common law exceptions.[FN2]

FN1. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(1); see also R. v. Dillabough(1975), 28 C.C.C. (2d) 482 (Ont. C.A.) (wife not competent against husband for assaulton third party).

FN2. Hoskyn v. Commissioner of Police for the Metropolis, [1979] A.C. 474 (U.K. H.L.)(marriage two days before trial; wife not compellable witness for prosecution); R. v.Hawkins (1996), 111 C.C.C. (3d) 129 (S.C.C.) (Crown witness at preliminary inquirynot competent and compellable at trial after marrying accused in interim; testimony frompreliminary inquiry admissible as exception to hearsay rule based on necessity and reli-ability); see also R. v. Lonsdale (1973), 15 C.C.C. (2d) 201 (Alta. C.A.) (marriage afterincident but before trial subjecting wife to common law); R. v. McGinty, [1986] 4W.W.R. 97 (Y.T. C.A.); R. v. Marchand (1980), 55 C.C.C. (2d) 77 (N.S. C.A.) (commonlaw rule of spousal incompetency no longer applying when couple divorced); R. v.Bailey (1983), 32 C.R. (3d) 337 (Ont. C.A.); R. v. Couture (2007), 2007 CarswellBC1365 (S.C.C.).

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CED Criminal Law — Defences II.1.(c).(ii) Page 1


CED Criminal Law — Defences II.1.(c).(iii)Canadian Encyclopedic Digest



(iii) — Statutory Exceptions


To check the currency of the title, please refer to the subject title page.II.1.(c).(iii)


§48 Under Canadian law the wife or husband of a person charged with a variety of offences orattempts to commit such offences under the Criminal Code, or the Youth Criminal Justice Act,is both a competent and compellable witness for the prosecution, without the consent of theperson charged.[FN1] Additionally, with respect to some Criminal Code offences, the hus-band or wife of the person charged is a competent and compellable witness if the complainantor victim is under the age of 14 years.[FN2]

FN1. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(2) [re-en. 2002, c. 1, s. 166]; Crim-inal Code, R.S.C. 1985, c. C-46, ss. 151, 152 [both rep. & sub. 2005, c. 32, s. 3; am.2008, c. 6, s. 54(b)], 153 [re-en. R.S.C. 1985, c. 19 (3rd Supp.), s. 1; am. 2005, c. 32, s.4; 2008, c. 6, s. 54(c)], 155 [am. R.S.C. 1985, c. 27 (1st Supp.), s. 21], 159 [re-en. R.S.C.1985, c. 19 (3rd Supp.), s. 3], 160(2) [en. R.S.C. 1985, c. 19 (3rd Supp.), s. 3], (3) [en.R.S.C. 1985, c. 19 (3rd Supp.), s. 3; am. 2008, c. 6, s. 54(d)], 170 [rep. & sub. 2005, c.32, s. 9.1; am. 2008, c. 6, s. 54(f)], 172 [am. R.S.C. 1985, c. 19 (3rd Supp.), s. 6], 173[am. R.S.C. 1985, c. 19 (3rd Supp.), s. 7; 2008, c. 6, s. 54(h)], 179 [am. R.S.C. 1985, c.27 (1st Supp.), s. 22; R.S.C. 1985, c. 19 (3rd Supp.), s. 8], 212 [am. R.S.C. 1985, c. 19(3d Supp.), s. 9; 1997, c. 16, s. 2; 1999, c. 5, s. 8; 2005, c. 32, s. 10.1], 215 [am. 1991, c.43, Sched., s. 2; 2000, c. 12, ss. 93, 95(a); 2005, c. 32, s. 11], 218 [rep. & sub. 2005, c.32, s. 12], 271 [am. R.S.C. 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19], 272 [re-en.1995, c. 39, s. 145; am. 2008, c. 6, s. 28], 273 [am. 1995, c. 39, s. 146; 2008, c. 6, s. 29],280, 281, 282 [am. 1993, c. 45, s. 4], 283 [am. 1993, c. 45, s. 5], 291-294; Youth Crim-inal Justice Act, S.C. 2002, c. 1, s. 136(1).

FN2. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(4); Criminal Code, R.S.C. 1985, c.C-46, ss. 220 [re-en. 1995, c. 39, s. 141], 221, 235, 236 [re-en. 1995, c. 39, s. 142], 237,239 [re-en. 1995, c. 39, s. 143; am. 2008, c. 6, s. 16], 240, 266, 267 [re-en. 1994, c. 44, s.17], 268 [am. 1997, c. 16, s. 5], 269 [re-en. 1994, c. 44, s. 18].

CED Criminal Law — Defences II.1.(c).(iii) Page 1


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CED Criminal Law — Defences II.1.(c).(iii) Page 2


CED Criminal Law — Defences II.1.(c).(iv)Canadian Encyclopedic Digest



(iv) — Common Law Exceptions


To check the currency of the title, please refer to the subject title page.II.1.(c).(iv)


§49 As an exception to the general rule that a husband or wife could not testify against his orher spouse, the common law permitted the spouse to give evidence where the charge involvedthe liberty, health or person of the other spouse.[FN1] This common law is recognized by stat-ute in Canada.[FN2]

§50 Under existing law a spouse whose person, liberty or health has been threatened by theother spouse is competent to testify against that spouse.[FN3]

§51 Where the offence falls within that category of offences, which at common law providesthat one spouse is competent to testify against the other, that spouse is also compellable at theinstance of the prosecution. This includes being compelled to attend court, being called to thewitness stand and, once there, being required to answer all questions in accordance with thelaws of evidence, subject only to the privilege with respect to inter-spousal communica-tions.[FN4]

FN1. Moss v. Moss, [1963] 2 Q.B. 799 (Eng. Q.B.); see also Bentley v. Cooke (1784), 99E.R. 729 (Eng. K.B.) (cases of violence being exceptions on ground of necessity).

FN2. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(5).

FN3. R. v. Sillars, [1979] 1 W.W.R. 743 (B.C. C.A.) (no threat to wife occurring whenhusband setting fire to motel unit in which she lived); see also R. v. Czipps (1979), 12C.R. (3d) 193 (Ont. C.A.); R. v. MacPherson (1980), 52 C.C.C. (2d) 547 (N.S. C.A.)(competency under common law exception for cases of personal violence against spouseextending to children of marriage); R. v. Wood (1982), 8 C.C.C. (3d) 217 (Ont. Prov.Ct.) (wife incompetent against husband for harassing telephone calls as not interferingwith her person, liberty or health).

CED Criminal Law — Defences II.1.(c).(iv) Page 1


FN4. R. v. McGinty, [1986] 4 W.W.R. 97 (Y.T. C.A.); R. v. Czipps (1979), 12 C.R. (3d)193 (Ont. C.A.); R. v. Lonsdale (1973), 15 C.C.C. (2d) 201 (Alta. C.A.); but see Hoskynv. Commissioner of Police for the Metropolis, [1979] A.C. 474 (U.K. H.L.) (spouse com-petent but not compellable).

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CED Criminal Law — Defences II.1.(c).(iv) Page 2


CED Criminal Law — Defences II.1.(c).(v)Canadian Encyclopedic Digest



(v) — Privileged Inter-spousal Communications


To check the currency of the title, please refer to the subject title page.II.1.(c).(v)

See Canadian Abridgment: CRM.VII.5.j.ii Criminal law — Pre-trial procedure — Admissibil-ity of private communications — Privileged communications — Spouses; EVD.XVII.2.bEvidence — Privilege — Privileged communications — Husband and wife

§52 No husband is compellable to disclose any communication made to him by his wife dur-ing their marriage, and no wife is compellable to disclose any communication made to her byher husband during their marriage.[FN1]

§53 When the communication under consideration is some form of correspondence or writing,the privilege does not apply.[FN2]

§54 Oral communications between spouses, lawfully intercepted, are privileged and cannot beused by the prosecution in evidence, except with the consent of the spouse holding the priv-ilege.[FN3]

FN1. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(3); R. v. Zylstra (1995), 41 C.R.(4th) 130 (Ont. C.A.) (privilege to be asserted in presence of jury; judge to give jury spe-cial charge that decision to invoke privilege that of witness and not accused); see also R.v. Marchand (1980), 55 C.C.C. (2d) 77 (N.S. C.A.); R. v. Kanester (1966), 49 C.R. 402(S.C.C.); adopting dissenting reasons of Maclean J.A. (1966), 48 C.R. 352 (B.C. C.A.)(privilege not surviving divorce; privilege can be waived as being privilege of person towhom communications made); R. v. Lloyd (1980), 16 C.R. (3d) 221 (B.C. C.A.); re-versed on other grounds [1981] 2 S.C.R. 645 (S.C.C.) (privilege can be waived by recip-ient); R. v. Andrew (1986), 26 C.C.C. (3d) 111 (B.C. S.C.).

FN2. R. v. Kotapski (1981), 66 C.C.C. (2d) 78 (Que. S.C.); affirmed (1984), 13 C.C.C.(3d) 185 (Que. C.A.); leave to appeal refused (1984), 57 N.R. 318 (S.C.C.) (statementfrom husband to wife not covered by marital privilege).

FN3. R. v. Jean (1979), 7 C.R. (3d) 338 (Alta. C.A.); affirmed [1980] 1 S.C.R. 400

CED Criminal Law — Defences II.1.(c).(v) Page 1


(S.C.C.) (privilege, when claimed, applying to enumerated compellable offence in s. 4(2)of Canada Evidence Act); see also Criminal Code, R.S.C. 1985, c. C-46, s. 189(6); R. v.Lloyd, [1981] 2 S.C.R. 645 (S.C.C.) (intercepted communication excluded and wife ac-quitted of trafficking in narcotics).

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CED Criminal Law — Defences II.1.(c).(v) Page 2




2 — De Minimis Non Curat Lex(a) — Definition of De Minimis Defence



See Canadian Abridgment: CRM.V.7 Criminal law — Defences — De minimis non curat lex

§55 The legal maxim de minimis non curat lex means that the court may properly overlookthe breaking of the law by irregularities, very slight consequences or a trifling deviationwhich, if continued in practice, would weigh little or nothing on the public interest. The lawdoes not concern itself with trifles.[FN1]

FN1. Would v. Herrington, [1932] 2 W.W.R. 385 (Man. C.A.) (conviction for voting infavour of $5 payment to council member quashed as de minimis); R. v. Morris, [1972] 1W.L.R. 228 (Eng. C.A.) (de minimis available in accident situation if physical resultclearly trivial); R. v. Harbottle (1992), 14 C.R. (4th) 363 (Ont. C.A.); affirmed [1993] 3S.C.R. 306 (S.C.C.) (holding legs of deceased during strangulation beyond de minimis);R. v. Lepage (1989), 74 C.R. (3d) 368 (Sask. Q.B.) (pushing person so trifling that deminimis maxim applying); R. v. Starvish (1986), 76 N.S.R. (2d) 43 (N.S. Co. Ct.); re-versed on other grounds (1987), 79 N.S.R. (2d) 136 (N.S. C.A.) (fishing 1.2 nauticalmiles inside Canadian waters not de minimis); R. v. Cribbin (1994), 89 C.C.C. (3d) 67(Ont. C.A.) (need not be substantial contribution to cause of death as long as outside deminimis range); R. v. Clarke (1998), 23 C.R. (5th) 329 (Ont. Prov. Div.) (accused at-tempting to pry boards off window, enter vacant building and establish "squat" to publi-cize plight of homeless; actions causing real physical damage; de minimis non curat lexinapplicable); R. v. Perivolaris (1998), 1998 CarswellOnt 5267 (Ont. Prov. Div.)(snatching necklace de minimis); see also §437.

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2 — De Minimis Non Curat Lex(b) — Application of De Minimis Defence



See Canadian Abridgment: CRM.V.7 Criminal law — Defences — De minimis non curat lex

§56 There is some authority that the defence of de minimis non curat lex provides a full de-fence for a variety of otherwise unlawful acts. Although the defence is raised most often dur-ing drug cases, it has a more general application.[FN1] The de minimis defence has had somerecognition as a potential defence at the highest level.[FN2]

FN1. R. v. Cuerrier (1998), 127 C.C.C. (3d) 1 (S.C.C.) (assault by handshake or socialbuss subject to de minimis defence); R. v. Kubassek (2004), 188 C.C.C. (3d) 307 (Ont.C.A.) (pushing religious official at same sex marriage not de minimis); R. v. Carson(2004), 185 C.C.C. (3d) 541 (Ont. C.A.); leave to appeal refused (2004), 2004 Carswel-lOnt 4007 (S.C.C.) (when defence applicable); R. v. Kerwin (1930), 1 M.P.R. 172 (N.S.C.A.) (conviction quashed on charge of keeping liquor for sale where few drops only);see also R. v. Peleshaty, [1950] 1 W.W.R. 108 (Man. C.A.) (accused acquitted for illegalpossession of liquor on basis of de minimis where ten drops of liquor in each of twobottles); R. v. Jacobson (1972), 9 C.C.C. (2d) 59 (Ont. C.A.) (conviction quashed fortheft of one library book); R. v. Webster (1981), 10 M.V.R. 310 (Ont. Dist. Ct.) (de min-imis applying to charge of unlawful parking); R. v. Drainville (1991), 5 C.R. (4th) 38(Ont. Prov. Div.) (three-minute obstruction of roadway not de minimis).

FN2. R. v. Hinchey (1996), 111 C.C.C. (3d) 353 (S.C.C.); Canadian Foundation forChildren, Youth & the Law v. Canada (Attorney General) (2004), 180 C.C.C. (3d) 353(S.C.C.); R. v. Carson (2004), 185 C.C.C. (3d) 541 (Ont. C.A.); leave to appeal refused(2004), 2004 CarswellOnt 4007 (S.C.C.).

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3 — Immunity(a) — Children



See Canadian Abridgment: CRM.I.5.b Criminal law — General principles — Criminal re-sponsibility — Children

§57 Persons under the age of 12 years are immune from criminal prosecution.[FN1]

§58 No person aged 12 or 13 years may be tried for sexual interference, an invitation to sexualtouching or indecent exposure, unless the person is in a position of trust or authority towardsthe complainant or is a person upon whom the complainant is dependent, or is in a relation-ship with the complainant that is exploitative of the complainant.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 13; see also Youth Criminal Justice Act,S.C. 2002, c. 1 (persons 12 years of age or more but under 18 years subject to jurisdic-tion of youth court); R. v. Sawchuk, [1991] 5 W.W.R. 381 (Man. C.A.); leave to appealrefused (1991), [1992] 1 W.W.R. lxv (S.C.C.) (child to be measured in chronologicalage).

FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 150.1(3) [re-en. 2005, c. 32, s. 2(2)]; seealso R. v. Cardinal (1982), 1982 CarswellAlta 219 (Alta. C.A.); affirmed [1984] 2S.C.R. 523 (S.C.C.) (rule of immunity not incapacity; party over 14 years can be con-victed even where principal immune); R. v. Tatam (1921), 15 Cr. App. R. 132 (Eng.C.A.) (at common law, male under 14 years could not be convicted of sodomy).

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3 — Immunity(b) — Crown Immunity



See Canadian Abridgment: PUB.III.2.c.ii Public law — Public authorities — Public officers— Exemptions from operation of statutes — Miscellaneous; PUB.III.9.b.ii Public law — Pub-lic authorities — Armed forces — Jurisdiction of civil courts — Immunities and privileges ofservicemen; EVD.XVII.4.a Evidence — Privilege — Public interest immunity — Crown priv-ilege

§59 The Crown and its agents[FN1] are immune from prosecution under all enactments, ex-cept where the enactment mentions or refers to the Crown or its agents to make it bindingupon them.[FN2] Crown immunity applies only if the acts committed are designed to effectCrown purposes.[FN3]

§60 Crown officials, and ministers of the Crown, are subject to subpoena in the criminalcourts. Their occupation affords no privilege or immunity from compellability.[FN4]

§61 Statutory authority to commit an act that would otherwise be illegal does not invokeCrown immunity. It gives rise to a defence of statutory justification.[FN5]

FN1. R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551 (S.C.C.) (at common law whetherperson being servant or agent of Crown depending on degree of control exercised byCrown over performance of duties by servant or agent); R. v. Shirose (1997), 115 C.C.C.(3d) 310 (Ont. C.A.); reversed in part on other grounds (1999), 24 C.R. (5th) 365(S.C.C.) (RCMP officers not Crown agents under statute or at common law; no Crownimmunity for reverse sting operation involving trafficking in very large quantity of nar-cotics); see also Formea Chemicals Ltd. v. Polymer Corp., [1968] S.C.R. 754 (S.C.C.)(reference to Crown in statute extending to Crown officers, servants and agents); Cana-dian Broadcasting Corp. v. Ontario (Attorney General), [1959] S.C.R. 188 (S.C.C.)(Canadian Broadcasting Corp. being agent of Her Majesty) .

FN2. R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551 (S.C.C.) (some doubt whetherdefinition of "every one" in s. 2 of Criminal Code having effect of making Code bindingon Crown); see also Canadian Broadcasting Corp. v. Ontario (Attorney General),



[1959] S.C.R. 188 (S.C.C.) (Crown excluded where not included expressly or by implic-ation).

FN3. R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551 (S.C.C.) (Crown corporations im-mune as being agents for all their purposes); R. v. Canadian Broadcasting Corp., [1983]1 S.C.R. 339 (S.C.C.) (Canadian Broadcasting Corp. convicted for exhibiting obscenefilm; corporation's action inconsistent with lawful powers); see also R. v. Stradiotto,1973 CarswellOnt 845 (Ont. C.A.) (no Crown immunity for careless driving by militarypersonnel acting in course of employment, as carrying out duties not requiring carelessdriving); R. v. Sellers (1985), 73 A.R. 274 (Alta. Q.B.) (running red light not undertakento effect Crown purposes; no immunity for military policeman); R. v. Anderson (1983), 3C.C.C. (3d) 308 (N.B. Q.B.) (immunity granted to military member accused of failing tohave vehicle weighed according to law); R. v. Anderson, [1930] 2 W.W.R. 595 (Man.C.A.) (armed forces members immune from charge of driving without licence); R. v.Rhodes, [1934] O.R. 44 (Ont. H.C.); R. v. Fattore, [1972] 5 W.W.R. 636 (B.C. Prov.Ct.); R. v. Coleman, [1939] 2 W.W.R. 381 (Man. C.A.).

FN4. R. v. Williams (1981), 64 C.C.C. (2d) 514 (B.C. S.C.); Canadian Javelin Ltd., Re,[1982] 2 S.C.R. 686 (S.C.C.) (compellability of former premier); R. v. Baines, [1909] 1K.B. 258 (Eng. K.B.); but see Quebec (Attorney General) v. Canada (Attorney General),[1979] 1 S.C.R. 218 (S.C.C.) (commissioner of provincial commission without authorityto subpoena Solicitor General of Canada).

FN5. R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551 (S.C.C.).

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CED Criminal Law — Defences II.3.(c)Canadian Encyclopedic Digest


3 — Immunity(c) — Immunity of Crown Attorneys and Judges


To check the currency of the title, please refer to the subject title page.II.3.(c)

See Canadian Abridgment: TOR.XIV Torts — Malicious prosecution and false imprisonment;JDG.V.5.b Judges and courts — Justices, magistrates and provincial courts — Civil liability— Statutory protection; PUB.I.3.a.iv.A Public law — Crown — Principles of tort regardingCrown — Liability of Crown for torts of servants — Liability for specific torts — Action formalicious prosecution by Crown officers

§62 Absolute immunity for the Attorney General and his or her agents, the Crown attorneys,is not justified in the interests of public policy. Policy considerations in favour of absolute im-munity must give way to the right of a private citizen to seek a remedy when a prosecutor actsmaliciously, in fraud of his or her duties, resulting in damage to the victim.[FN1]

§63 Judges, as a general rule, are absolutely immune from civil action for anything said ordone in performance of their duties.[FN2]

FN1. Proulx c. Québec (Procureur général) (2004), 159 C.C.C. (3d) 225 (S.C.C.)(prosecutors enjoy only relative immunity); Folland v. Ontario (2003), 170 O.A.C. 17(Ont. C.A.); leave to appeal refused (2003), 194 O.A.C. 200 (note) (S.C.C.); Dix v.Canada (Attorney General) (2002), 315 A.R. 1 (Alta. Q.B.) (legal malice by prosecutor);Nelles v. Ontario, [1989] 2 S.C.R. 170 (Attorney General and Crown attorneys not im-mune from suits for malicious prosecution); Prete v. Ontario (1993), 86 C.C.C. (3d) 442(Ont. C.A.); leave to appeal refused (1994), 87 C.C.C. (3d) vi (note) (S.C.C.) (statutorylimitation unable to stand in face of Charter; Crown Attorney subject to suit); McGilli-vary v. New Brunswick (1994), 92 C.C.C. (3d) 187 (N.B. C.A.); leave to appeal refused(1995), 120 D.L.R. (4th) vii (note) (S.C.C.) (civil action against police and other Crownexperts dismissed; no cause of action).

FN2. Royer c. Mignault, [1988] R.J.Q. 670 (Que. C.A.); leave to appeal refused (1988),50 D.L.R. (4th) viii (note) (S.C.C.) (superior court judge protected by absolute im-munity); Charters v. Harper (1987), 79 N.B.R. (2d) 28 (N.B. Q.B.); MacKeigan v. Hick-man, [1989] 2 S.C.R. 796 (S.C.C.) (judges enjoying immunity from compulsion to attendbefore commissions of inquiry); Taylor v. Canada (Attorney General) (2000), 184

CED Criminal Law — Defences II.3.(c) Page 1


D.L.R. (4th) 706 (Fed. C.A.); leave to appeal refused (2000), 2000 CarswellNat 2566(S.C.C.); Edwards v. Canada (Attorney General) (1999), 182 D.L.R. (4th) 736 (Ont.S.C.J.); Crowe v. Canada (Attorney General) (2007), 2007 CarswellNat 3995 (F.C.); af-firmed on other grounds (2008), 2008 CarswellNat 3835 (F.C.A.) (immunity of judgesfrom suit is important constitutional principle).

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CED Criminal Law — Defences II.3.(d).(i)Canadian Encyclopedic Digest


3 — Immunity(d) — Internationally Protected Persons(i) — Consular Officers and Employees


To check the currency of the title, please refer to the subject title page.II.3.(d).(i)

See Canadian Abridgment: ITL.V International law — Immunities of foreign states

§64 Consular officers are not liable to arrest or detention pending trial except in the case of agrave crime.[FN1] Consular officers, furthermore, are not amenable to the jurisdiction of thejudicial or administrative authorities of the receiving state in respect of acts performed in theexercise of consular functions.[FN2] Consular officers may be called upon to attend as wit-nesses, but cannot be required to give evidence.[FN3] The immunities of a consular officermay be waived in writing by the sending state.[FN4]

§65 Consular employees are not amenable to the jurisdiction of the judicial or administrativeauthorities of the receiving state in respect of acts performed in the exercise of consular func-tions.[FN5] These employees may be called upon to attend as witnesses and give evidence,except that there is no obligation to give evidence concerning their functions, to provide cor-respondence or documents regarding their functions or to give evidence as experts in theirlaw.[FN6]

FN1. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,Sched. II (Vienna Convention on Consular Relations), art. 41¶1; see also Foreign Mis-sions and International Organizations Act, S.C. 1991, c. 41, s. 3, Sched. II (Vienna Con-vention on Consular Relations), art. 53¶2 (members of private staff or of family of con-sul having same immunities).

FN2. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,Sched. II (Vienna Convention on Consular Relations), art. 43¶1; R. v. Bonadie (1996),109 C.C.C. (3d) 356 (Ont. Prov. Div.) (consul immune from prosecution for perjury andattempting to obstruct justice if charges arising out of performance of consular duties;committing acts outside accused's consular district not depriving accused of immunity).

FN3. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,Sched. II (Vienna Convention on Consular Relations), art. 44; R. v. Bonadie (1996), 109

CED Criminal Law — Defences II.3.(d).(i) Page 1


C.C.C. (3d) 356 (Ont. Prov. Div.) (decision to give evidence in performance of consularfunctions not amounting to waiver of further or future immunities) R. v. Yushko (1997),1997 CarswellOnt 732 (Ont. Prov. Div.) (consular immunity limited; warrant issued).

FN4. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,Sched. II (Vienna Convention on Consular Relations), art. 45; R. v. Bonadie (1996), 109C.C.C. (3d) 356 (Ont. Prov. Div.) (decision to testify in performance of consular func-tions not amounting to waiver of immunities; waiver only effective if coming directlyfrom sending state and in written form); see also Criminal Code, R.S.C. 1985, c. C-46, s.7(4) (public service employees liable for prosecution in Canada for acts outside Canada).

FN5. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,Sched. II (Vienna Convention on Consular Relations), art. 43¶1.

FN6. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,Sched. II (Vienna Convention on Consular Relations), art. 44.

END OF DOCUMENT

CED Criminal Law — Defences II.3.(d).(i) Page 2


CED Criminal Law — Defences II.3.(d).(ii)Canadian Encyclopedic Digest


3 — Immunity(d) — Internationally Protected Persons

(ii) — Diplomatic Agents


To check the currency of the title, please refer to the subject title page.II.3.(d).(ii)

See Canadian Abridgment: ITL.V.2 International law — Immunities of foreign states — Dip-lomatic personnel

§66 Diplomatic agents of foreign states in Canada are inviolable. They are not liable to anyform of arrest or detention, and enjoy immunity from Canadian criminal jurisdiction.[FN1]Diplomatic agents are not obliged to give evidence as a witness.[FN2] The immunity of a dip-lomatic agent extends to the members of his or her family if they are not Canadian nation-als,[FN3] but all such immunities can be waived by the sending state.[FN4]

§67 Members of the administrative and technical staff of a foreign mission, and their families,enjoy the same immunities from Canadian criminal jurisdiction as diplomatic agents if theyare not Canadian nationals or permanent residents in Canada.[FN5]

§68 Members of the service staff of a foreign mission who are not Canadian nationals or per-manent residents are immune only from criminal jurisdiction in respect of acts performed inthe course of their duties.[FN6]

FN1. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,Sched. I (Vienna Convention on Diplomatic Relations), arts. 29, 31; see also R. v. Pala-cios (1984), 45 O.R. (2d) 269 (Ont. C.A.) (duration of diplomatic immunity considered);R. v. Rose (1946), 3 C.R. 277 (Que. K.B.) (stolen diplomatic documents); R. v. Yushko(1997), 1997 CarswellOnt 732 (Ont. Prov. Div.) (neither consular immunity existing attime of arrest, charge and issuance of warrant, not subsequent diplomatic immunity, bar-ring execution of warrant).

FN2. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,Sched. II (Vienna Convention on Consular Relations), art. 31¶2; see also R. v. McGinty,[1986] 4 W.W.R. 97 (Y.T. C.A.) (foreign diplomats may testify in court if so wish).

FN3. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,

CED Criminal Law — Defences II.3.(d).(ii) Page 1


Sched. II (Vienna Convention on Consular Relations), art. 37¶1.

FN4. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,Sched. II (Vienna Convention on Consular Relations), art. 32¶1; see also R. v. Penton-ville Prison Governor, [1971] 2 Q.B. 274 (Eng. Q.B.) (accused on diplomatic agentpassport not immune; accused on commercial business, not official diplomatic mission;accused not having been accepted and received officially); R. v. Lunan (1947), 3 C.R. 56(Ont. C.A.) (no immunity concerning documents taken from Russian Embassy); R. v. B.(A.), [1941] 1 K.B. 454 (Eng. C.A.); Nain v. Ncham (1995), 1995 CarswellOnt 1984(Ont. Gen. Div.) (members of family of diplomatic agent).

FN5. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,Sched. II (Vienna Convention on Consular Relations), art. 37¶2; see also R. v. Madan,[1961] 2 Q.B. 1 (Eng. C.A.).

FN6. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 3,Sched. II (Vienna Convention on Consular Relations), art. 37¶3.

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CED Criminal Law — Defences II.3.(d).(ii) Page 2


CED Criminal Law — Defences II.3.(d).(iii)Canadian Encyclopedic Digest



(iii) — International Organization Representatives


To check the currency of the title, please refer to the subject title page.II.3.(d).(iii)

See Canadian Abridgment: ITL.VI.2 International law — International organizations and gov-ernment bodies — Miscellaneous

§69 Representatives of states and governments that are members of a recognized internationalorganization, where it is provided by order, have immunity from personal arrest or detentionand, in respect of all acts done or words written or spoken by them in their capacity as repres-entatives, immunity from legal process of every kind.[FN1]

§70 Designated officials of a recognized international organization, where it is provided byorder, have immunity from legal process in respect of words spoken or written and all actsperformed by them in their official capacity.[FN2]

§71 Designated experts performing missions for a recognized international organization,where it is provided by order, have immunity from personal arrest or detention and, in respectof words spoken or written and acts done by them in the course of the performance of theirmission, immunity from legal process of every kind.[FN3]

FN1. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 5(1)[am. 2000, c. 24, s. 54; 2002, c. 12, s. 3(1)-(4)], Sched. III (Convention on the Privilegesand Immunities of the United Nations), art. IV, ss. 11, 12; Privileges and Immunities Ac-cession Order (United Nations), C.R.C. 1978, c. 1317.

FN2. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 5(1)[am. 2000, c. 24, s. 54; 2002, c. 12, s. 3(1)-(4)], Sched. III (Convention on the Privilegesand Immunities of the United Nations), art. IV.

FN3. Foreign Missions and International Organizations Act, S.C. 1991, c. 41, s. 5(1)[am. 2000, c. 24, s. 54; 2002, c. 12, s. 3(1)-(4)], Sched. III (Convention on the Privilegesand Immunities of the United Nations), art. IV, s. 22(a), (b).

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CED Criminal Law — Defences II.3.(d).(iii) Page 1


CED Criminal Law — Defences II.3.(d).(iv)Canadian Encyclopedic Digest



(iv) — NATO Representatives


To check the currency of the title, please refer to the subject title page.II.3.(d).(iv)

See Canadian Abridgment: ITL.VI.2 International law — International organizations and gov-ernment bodies — Miscellaneous

§72 Every person designated by a member state of NATO as its principal permanent repres-entative to the organization in the territory of another member state, and their official residentstaff, enjoy the same immunities and privileges as diplomatic representatives and their officialstaff of comparable rank.[FN1]

§73 Any other representative of a member state to the NATO council or any of its subsidiarybodies who is not a principal permanent representative, while present in the territory of anoth-er member state for the discharge of his or her duties, is immune from arrest or detention tothe same extent as diplomatic persons of comparable rank. In respect of words spoken or writ-ten and of acts done by them in their official capacity, other representatives are immune fromCanadian legal process.[FN2]

§74 Officials of the NATO organization agreed upon by the Chairman of the Council Deputiesand the member states are immune from Canadian legal process in respect of words spoken orwritten, and of acts done by them in their official capacity and within the limits of their au-thority.[FN3]

§75 Experts employed on missions on behalf of the NATO organization, so far as is neces-sary, while present in the territory of Canada for the discharge of their duties, are immunefrom personal arrest, detention and seizure of their personal baggage. They are also immunefrom Canadian legal process in respect of words spoken or written or acts done by them inperformance of their official functions for NATO.[FN4]

FN1. Privileges and Immunities (North Atlantic Treaty Organization) Act, R.S.C. 1985,c. P-24, Sched., art. 12; see also §§66-68.

FN2. Privileges and Immunities (North Atlantic Treaty Organization) Act, R.S.C. 1985,

CED Criminal Law — Defences II.3.(d).(iv) Page 1


c. P-24, Sched., art. 13¶1(a), (b); see also §§67-69.

FN3. Privileges and Immunities (North Atlantic Treaty Organization) Act, R.S.C. 1985,c. P-24, Sched., arts.17, 18(a).

FN4. Privileges and Immunities (North Atlantic Treaty Organization) Act, R.S.C. 1985,c. P-24, Sched., art. 21¶1(a), (b).

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CED Criminal Law — Defences II.3.(d).(iv) Page 2


CED Criminal Law — Defences II.3.(d).(v)Canadian Encyclopedic Digest



(v) — Sovereigns and Heads of Foreign States


To check the currency of the title, please refer to the subject title page.II.3.(d).(v)

See Canadian Abridgment: ITL.V International law — Immunities of foreign states

§76 Any sovereign or other head of a foreign state or of any political subdivision of a foreignstate, while acting as such in a public capacity, is immune from the jurisdiction of any court inCanada.[FN1]

FN1. State Immunity Act, R.S.C. 1985, c. S-18, ss. 2, 3; see also Mighell v. Sultan of Jo-hore (1893), [1894] 1 Q.B. 149 (Eng. C.A.) (independent sovereign of smallest statestanding on same footing as monarch of greatest); Sultan of Johore v. Abubakar TunkuAris Bendahar, [1952] A.C. 318 (Singapore P.C.); Lorac Transport Ltd. v. "Atra" (The)(1986), [1987] 1 F.C. 108 (Fed. C.A.) (exception for commercial activity considered);Schreiber v. Canada (Attorney General) (2002), 167 C.C.C. (3d) 51 (S.C.C.) (immunityof Germany from civil action in Canadian courts).

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CED Criminal Law — Defences II.3.(d).(v) Page 1


CED Criminal Law — Defences II.3.(e).(i)Canadian Encyclopedic Digest


3 — Immunity(e) — Parliamentary Immunity

(i) — Members of Senate and House of Commons


To check the currency of the title, please refer to the subject title page.II.3.(e).(i)

See Canadian Abridgment: CNL.VI.2.b.ii.B Constitutional law — Nature and status ofDominion and provinces — Status and constitution of Parliament — Members of Parliament— Privileges of members — Immunity from arrest

§77 Members of the Senate and House of Commons have absolute immunity from criminalprosecution for their speeches and debates during proceedings in Parliament.[FN1] This im-munity does not cover acts, otherwise criminal, that occur in either House.[FN2]

§78 Statements made by members outside the Senate or Commons are not protected by parlia-mentary immunity.[FN3]

§79 Members of Parliament are not compelled to attend as witnesses before any criminal courtin Canada while the House is in session.[FN4]

FN1. Constitution Act, 1867, see R.S.C. 1985, App. II (No. 5); Parliament of CanadaAct, R.S.C. 1985 c. P-1, s. 4; see also Bill of Rights, 1688 (1 Will. & Mar. 2, c. 2); Ro-man Corp. v. Hudson's Bay Oil & Gas Co., [1971] 2 O.R. 418 (Ont. H.C.); affirmed[1972] 1 O.R. 444 (Ont. C.A.); affirmed [1973] S.C.R. 820 (S.C.C.) (object of privilegebeing to protect member from harassment inside and outside of House); Reference reAmendment to the Constitution of Canada, [1981] 1 S.C.R. 753 (S.C.C.) (no limit in lawwhich ties immunities and privileges of members of Parliament to British House ofCommons so long as they do not exceed those held by British House).

FN2. Elliot's Case (1629), 3 State Tr. 293 (assault on Speaker in chair could be dealtwith by law out of Parliament); see also Bradlaugh v. Gossett (1884), 12 Q.B.D. 271(Eng. Q.B.) (nothing said by member can be dealt with by ordinary courts, but ordinarycrime committed in House would not be withdrawn from criminal courts); but seeWason, Re (1869), L.R. 4 Q.B. 573 (Eng. Q.B.) (members of either House cannot be in-quired into by criminal proceedings for anything they may do or say).

CED Criminal Law — Defences II.3.(e).(i) Page 1


FN3. R. v. Atlantic Sugar Refineries Co. (1976), 34 C.R.N.S. 234 (Que. S.C.); affirmed36 C.R.N.S. 296 (Que. C.A.) (cabinet minister unable to invoke privilege for commentsmade at press conference outside Parliament); see also Stopforth v. Goyer (1979), 23O.R. (2d) 696 (Ont. C.A.) (comments in lobby of Parliament building protected by quali-fied privilege); but see Roman Corp. v. Hudson's Bay Oil & Gas Co., [1972] 1 O.R. 444(Ont. C.A.); affirmed [1973] S.C.R. 820 (S.C.C.) (absolute parliamentary privilege at-taching to press release and telegram outside House as both acts within proceedings inParliament).

FN4. Maingot, Parliamentary Privilege in Canada (1982), pp. 134, 137; see alsoBeauchesne, Rules and Forms of the House of Commons of Canada, 5th ed. (1978), §64,p. 22; May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 20thed. (1983).

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CED Criminal Law — Defences II.3.(e).(i) Page 2


CED Criminal Law — Defences II.3.(e).(ii)Canadian Encyclopedic Digest


3 — Immunity(e) — Parliamentary Immunity

(ii) — Members of Provincial Legislatures


To check the currency of the title, please refer to the subject title page.II.3.(e).(ii)

See Canadian Abridgment: CNL.VI.3.a.iv.B Constitutional law — Nature and status ofDominion and provinces — Status and constitution of legislatures — Of provinces — Mem-bers of legislatures — Privileges

§80 Members of provincial legislatures have immunity from criminal prosecution for theirspeeches and debates during proceedings in the Provincial House.[FN1]

FN1. Fielding v. Thomas, [1896] A.C. 600 (Nova Scotia P.C.) (provincial legislatureshaving power to confer upon themselves same privileges as British House of Commonsor Canadian House of Commons); Club de la Garnison de Québec v. Lavergne (1918),27 Que. K.B. 37 (Que. K.B.) (member of legislative assembly could not be expelledfrom club because of remarks made in House); Landers v. Woodworth (1878), 2 S.C.R.158 (S.C.C.) (action for assault by member of Provincial House successful where mem-ber forcibly removed because not apologizing as dictated by House); but see Referencere Legislative Privilege (1978), 18 O.R. (2d) 529 (Ont. C.A.) (member of provincial le-gislature not relieved from testimonial duties as witness in criminal proceeding as thosematters beyond constitutional competence of provincial legislature).

END OF DOCUMENT

CED Criminal Law — Defences II.3.(e).(ii) Page 1


CED Criminal Law — Defences II.3.(f)Canadian Encyclopedic Digest


3 — Immunity(f) — Military Personnel


To check the currency of the title, please refer to the subject title page.II.3.(f)

See Canadian Abridgment: PUB.III.9.b.ii Public law — Public authorities — Armed forces —Jurisdiction of civil courts — Immunities and privileges of servicemen

§81 A Canadian military service tribunal has concurrent jurisdiction with the "civil" criminalcourts to try persons subject to the National Defence Act for any offence committed in Canadaother than murder, manslaughter and offences of abduction. Where persons subject to the Actare tried by a "civil" criminal court, they may not be tried by a service tribunal for the sameoffence.[FN1]

§82 Foreign visiting forces, when designated, are not subject to Canadian criminal jurisdictionfor acts in regard to the property or security of the foreign state, the person or property of amember or dependant of the visiting force, or regarding any act done or anything omitted inperformance of their duties.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 5; National Defence Act, R.S.C. 1985, c.N-5, ss. 66 [re-en. R.S.C. 1985, c. 31 (1st Supp.), s. 45; am. 1998, c. 35, s. 20], 70 [am.1998, c. 35, s. 22], 71 [re-en. R.S.C. 1985, c. 31 (1st Supp.), s. 46]; R. v. Marsaw (1997),119 C.C.C. (3d) 3 (Can. Ct. Martial App. Ct.) (whether charge one of sexual assault); R.v. MacKay (1980), 54 C.C.C. (2d) 129 (S.C.C.) (narcotics conviction by military tribunalconstitutional).

FN2. Visiting Forces Act, R.S.C. 1985, c. V-2, ss. 3, 5, 6(1), (2); see also Exemption ofUnited States Forces from Proceedings in Canadian Criminal Courts, Re, [1943] S.C.R.483 (S.C.C.) (foreign forces in Canada by consent immune from criminal jurisdiction);R. v. Chung Chi Cheung (1938), 1938 CarswellFor 6 (Hong Kong P.C.).

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CED Criminal Law — Defences II.3.(f) Page 1




4 — Mental Disorder(a) — Exemption From Conviction



See Canadian Abridgment: CRM.V.14.c Criminal law — Defences — Mental disorder —Mental disorder negativing mens rea

§83 No person is criminally responsible for an act committed or an omission made while suf-fering from a mental disorder that rendered the person incapable of appreciating the natureand quality of the act or omission, or of knowing that it was wrong.[FN1] Thus, a finding ofmental disorder is not sufficient in itself to justify a verdict of not criminally responsible. Thedisorder must either render the accused incapable of appreciating the nature and consequencesof the act or render him or her incapable of knowing that the act is wrong. Further, the incapa-city must exist when the act is performed and relate to the conduct that is the subject matter ofthe offence with which the accused is charged.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, ss. 2 "mental disorder" [en. S.C. 1991, c. 43,s. 1], 16(1) [re-en. S.C. 1991, c. 43, s. 2]; R. v. Chaulk, [1990] 3 S.C.R. 1303 (S.C.C)(insanity operating as exemption from criminal liability); R. v. Ratti, [1991] 1 S.C.R. 68(S.C.C.) (powers of appeal court in insanity cases); see also Criminal Code, R.S.C. 1985,c. C-46, ss. 672.34-672.36 [all en. S.C. 1991, c. 43, s. 4]; R. v. Mailloux, [1988] 2 S.C.R.1029 (S.C.C.) (appeal powers considered); R. v. Buxbaum (1989), 70 C.R. (3d) 20 (Ont.C.A.); leave to appeal refused (1989), 37 O.A.C. 318 (note) (S.C.C.) (accused not able toraise insanity on appeal if not raised at trial).

FN2. R. v. Fraser (1997), 6 C.R. (5th) 420 (Ont. C.A.); R. v. Larose (2004), 244 Sask. R.130 (Sask. Q.B.) (defence available only where disorder depriving accused of ability toappreciate nature and quality of acts committed and of ability to know acts morallywrong).

END OF DOCUMENT





4 — Mental Disorder(b) — Presumption of Mental Order



See Canadian Abridgment: CRM.V.14.b Criminal law — Defences — Mental disorder — Pre-sumption of sanity

§84 Every person is presumed not to suffer from a mental disorder so as to be exempt fromcriminal responsibility.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 16(2) [re-en. S.C. 1991, c. 43, s. 2]; R. v.Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.) (presumption of sanity reasonable limit); see alsoR. v. Ratti, [1991] 1 S.C.R. 68 (S.C.C.); R. v. Romeo, [1991] 1 S.C.R. 86 (S.C.C.).

END OF DOCUMENT



CED Criminal Law — Defences II.4.(c)Canadian Encyclopedic Digest


4 — Mental Disorder(c) — Mental Disorder at Time of Trial


To check the currency of the title, please refer to the subject title page.II.4.(c)

See Canadian Abridgment: CRM.VII.22 Criminal law — Pre-trial procedure — Determinationof fitness to stand trial

§85 Where an accused is, on account of mental disorder, found unfit to stand trial, any pleawhich has been made must be set aside.[FN1] Such a verdict does not prevent an accusedfrom being tried subsequently upon becoming fit to stand trial.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 672.31 [en. S.C. 1991, c. 43, s. 4].

FN2. Criminal Code, R.S.C. 1985, c. C-46, ss. 672.32 [en. S.C. 1991, c. 43, s. 4], 672.33[en. S.C. 1991, c. 43, s. 4; am. 2005, c. 22, s. 13].

END OF DOCUMENT



CED Criminal Law — Defences II.4.(d)Canadian Encyclopedic Digest


4 — Mental Disorder(d) — Burden of Proof on Defence


To check the currency of the title, please refer to the subject title page.II.4.(d)

See Canadian Abridgment: EVD.II.8.b Evidence — Proof — Proof of specific issues — San-ity

§86 When mental disorder is raised by the defence, it must be established by the defence on abalance of probabilities.[FN1]

§87 An accused may raise the issue of mental disorder either during the trial proper or after afinding of guilt but prior to the entry of the verdict of guilty.[FN2] In appropriate circum-stances, the accused may raise the issue for the first time on appeal.[FN3]

§88 Where the accused's own evidence tends to put his or her mental capacity for criminal in-tent into question, the Crown is entitled to put forward its own evidence of insanity.[FN4]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 16(3) [re-en. S.C. 1991, c. 43, s. 2]; R. v.Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.); R. v. Proctor, [1992] 2 W.W.R. 289 (Man.C.A.); R. v. Romeo, [1991] 1 S.C.R. 86 (S.C.C.); R. v. Malcolm, [1989] 6 W.W.R. 23(Man. C.A.) (negative inference may be drawn from refusal of accused to be examinedby Crown psychiatrist); R. v. Larose (2004), 244 Sask. R. 130 (Sask. Q.B.) (burden ofproof on party alleging accused's status as not criminally responsible on balance of prob-abilities); but see R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.) (refusal to dis-cuss with Crown psychiatrist not subject to inference); R. v. Warsing (2002), 167 C.C.C.(3d) 545 (B.C. C.A.) (no weight for expert opinion if underlying facts unproven); R. v.David (2002), 169 C.C.C. (3d) 165 (Ont. C.A.) (where contradictory defences, mentaldisorder to be considered first).

FN2. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.) (mental disorder raised by prosecution);R. v. Warsing, [1998] 3 S.C.R. 579 (S.C.C.).

FN3. R. v. Warsing, [1998] 3 S.C.R. 579 (S.C.C.) (fresh evidence admissible on appealdespite its availability at trial with exercise of due diligence; need to achieve just resultoverarching consideration; appellate court lacking jurisdiction to limit new trial to issue

CED Criminal Law — Defences II.4.(d) Page 1


of mental disorder); R. v. Pietrangelo (2008), 2008 CarswellOnt 3286 (Ont. C.A.); leaveto appeal refused (2008), 2008 CarswellOnt 6205 (S.C.C.) (Crown first raising issue onappeal as to accused not criminally responsible due to mental disorder (NCRMD); ac-cused found NCRMD and stay entered).

FN4. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.).

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CED Criminal Law — Defences II.4.(d) Page 2


CED Criminal Law — Defences II.4.(e)Canadian Encyclopedic Digest


4 — Mental Disorder(e) — Mental Disorder Raised by Crown


To check the currency of the title, please refer to the subject title page.II.4.(e)

See Canadian Abridgment: EVD.II.8.b Evidence — Proof — Proof of specific issues — San-ity

§89 In appropriate circumstances, the Crown may independently adduce evidence of mentaldisorder and, when this is permitted, the burden of proof on the Crown is on the balance ofprobabilities.[FN1]

§90 The Crown may lead evidence of insanity where the trier of fact has concluded that theaccused is otherwise guilty of the offence charged.[FN2]

§91 The Crown may also lead evidence of insanity if the accused's own defence has put theaccused's capacity for criminal intent in issue.[FN3]

FN1. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.); R. v. Chaulk, [1990] 3 S.C.R. 1303(S.C.C.) (Crown may adduce rebuttal evidence concerning insanity); see also R. v.Hendry (1985), 37 Man. R. (2d) 66 (Man. C.A.) (appeal court may raise insanity); R. v.Talbot (No. 2) (1977), 38 C.C.C. (2d) 560 (Ont. H.C.).

FN2. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.) (issue to be tried after guilty verdict butprior to entry of conviction); R. v. Thomson (1991), 10 C.R. (4th) 201 (Ont. C.A.) (no vi-olation of Charter where prosecution raises insanity); R. v. Fairholm (1990), 60 C.C.C.(3d) 289 (B.C. C.A.) (where insanity raised by Crown, judge should appoint counsel ifaccused unrepresented).

FN3. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.).

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CED Criminal Law — Defences II.4.(e) Page 1


CED Criminal Law — Defences II.4.(f).(i)Canadian Encyclopedic Digest


4 — Mental Disorder(f) — When Persons are Mentally Disordered

(i) — Disease of the Mind


To check the currency of the title, please refer to the subject title page.II.4.(f).(i)

See Canadian Abridgment: CRM.V.14.a.i Criminal law — Defences — Mental disorder —Requirements — Disease of mind

§92 A mental disorder means a disease of the mind.[FN1]

§93 A person has a disease of the mind who has any illness, disorder or abnormal conditionthat impairs the human mind and its functioning — excluding, however, self-induced statescaused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.The disease of the mind must be of such intensity as to render the accused incapable of appre-ciating the nature and quality of the violent act or of knowing that it is wrong.[FN2]

§94 To constitute a disease of the mind, an illness, abnormal condition or disorder must beshown to be the cause of the impairment of the human mind and its functioning. At the relev-ant time the disease of the mind must have caused impairment of the accused's faculties ofreason, memory and understanding.[FN3]

§95 A self-induced state of chronic alcoholism may lead to a disease of the mind, as may thechronic use of drugs. However, an isolated use of drugs or alcohol leading to a self-inducedstate will not fall within the meaning of disease of the mind, unless there is evidence of a pre-existing malfunctioning of the mental processes.[FN4]

§96 Transitory mental states such as concussion are excluded from disease of the mind whenthey are caused by an external source. Where, however, a transitory state is due to the psycho-logical or emotional make-up of the accused, rather than to an external source, the accusedmay have a disease of the mind.[FN5]

§97 Subjective conditions or weaknesses internal to the accused may be a disease of the mind,but transient disturbances of consciousness due to certain specific external factors do not fallwithin the concept of disease of the mind.[FN6]

§98 Some of the disorders and conditions found capable of being a disease of the mind are ar-

CED Criminal Law — Defences II.4.(f).(i) Page 1


teriosclerosis,[FN7] brain damage,[FN8] chronic alcoholism,[FN9] communicated insan-ity,[FN10] delusion,[FN11] dissociative state,[FN12] epilepsy,[FN13] erotomania,[FN14]manic depressive disorder (also known as bipolar affective disorder),[FN15] psychopathicpersonality disorder,[FN16] psychosis (such as schizophrenia)[FN17] and irresistible im-pulse.[FN18]

§99 The mental disorder or illness that causes a disease of the mind may be permanent or tem-porary, curable or incurable.[FN19]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 2 "mental disorder" [en. S.C. 1991, c. 43,s. 1].

FN2. Cooper v. R., [1980] 1 S.C.R. 1149 (S.C.C.); R. v. Worth (1995), 40 C.R. (4th) 123(Ont. C.A.); leave to appeal refused (1996), 206 N.R. 155 (note) (S.C.C.) (wrong mean-ing legally or morally wrong); R. v. Fraser (1997), 6 C.R. (5th) 420 (Ont. C.A.)(erotomania); see also R. v. Oakley (1986), 24 C.C.C. (3d) 351 (Ont. C.A.) (any medic-ally recognized disorder or mental illness may be disease of mind save transient mentaldisturbances caused by such external factors as violence or drugs); R. v. Simpson (1977),16 O.R. (2d) 129 (Ont. C.A.); R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.) (question of lawfor judge if state disease of mind; for jury to decide if accused suffering from condition).

FN3. R. v. Parks (1990), 78 C.R. (3d) 1 (Ont. C.A.); affirmed [1992] 2 S.C.R. 871(S.C.C.); Cooper v. R., [1980] 1 S.C.R. 1149 (S.C.C.) (borderline mentally defectiveperson could be insane based on natural imbecility).

FN4. Director of Public Prosecutions v. Beard, [1920] A.C. 479 (U.K. H.L.)(drunkenness can reach extreme stage of insanity); see also R. v. Godfrey, [1984] 3W.W.R. 193 (Man. C.A.); leave to appeal refused (1984), 8 D.L.R. (4th) 122n (S.C.C.)(insanity should have been left to jury where self-induced use of drugs and pre-existingmental disorder); R. v. Hilton (1977), 34 C.C.C. (2d) 206 (Ont. C.A.).

FN5. R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.) (external source of transitory mentalstate may produce state of non-insane automatism); R. v. Parks, [1992] 2 S.C.R. 871(S.C.C.) (sleepwalking).

FN6. R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.) (ordinary stresses and disappointmentsof life not being external cause for malfunctioning of mind); R. v. Parks, [1992] 2 S.C.R.871 (S.C.C.) (sleepwalking); see also §107.

FN7. R. v. Rabey (1977), 40 C.R.N.S. 46 (Ont. C.A.); affirmed [1980] 2 S.C.R. 513(S.C.C.); see also R. v. Mackie, [1933] 1 W.W.R. 273 (Man. C.A.); R. v. Kemp (1956),[1957] 1 Q.B. 399 (Eng. Q.B.); R. v. Butler (1988), 72 Nfld. & P.E.I.R. 25 (P.E.I. T.D.)(episodic discontrol); Cooper v. R., [1980] 1 S.C.R. 1149 (S.C.C.) (natural imbecilitydisease of mind).

FN8. R. v. Revelle (1979), 48 C.C.C. (2d) 267 (Ont. C.A.); affirmed (1981), 61 C.C.C.(2d) 575 (note) (S.C.C.) (accused in dissociative state due to brain damage and other



factors); R. v. Malcolm, [1989] 6 W.W.R. 23 (Man. C.A.) (delirium tremens disease ofmind).

FN9. Director of Public Prosecutions v. Beard, [1920] A.C. 479 (U.K. H.L.) (insanitymay supervene as result of alcoholic excess); see also R. v. Hilton (1977), 34 C.C.C. (2d)206 (Ont. C.A.) (accused suffering disease of mind due to alcohol).

FN10. R. v. Windle, [1952] 2 Q.B. 826 (Eng. C.A.) (communicated insanity arising whenperson in constant attendance on person of unsound mind).

FN11. R. v. Abbey, [1982] 2 S.C.R. 24 (S.C.C.) (delusion not to be equated with defenceof irresistible impulse; irresistible impulse may be symptom of disease of mind); R. v.Campbell (1987), 1987 CarswellOnt 3266 (Ont. Dist. Ct.) (lack of recall not necessarilydissociative state).

FN12. R. v. Parnerkar, [1972] 1 W.W.R. 161 (Sask. C.A.); affirmed (1973), [1974]S.C.R. 449 (S.C.C.); R. v. Sullivan (1995), 37 C.R. (4th) 333 (B.C. C.A.) (combinationof alcohol and unique psychological vulnerability; intoxicated accused shooting wife im-mediately after being told that wife not loving accused but loving another woman); seealso R. v. James (1974), 30 C.R.N.S. 65 (Ont. H.C.); R. v. MacLeod (1980), 52 C.C.C.(2d) 193 (B.C. C.A.); R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.).

FN13. R. v. Sullivan, [1984] A.C. 156 (U.K. H.L.); see also Bratty v. Attorney-Generalfor Northern Ireland, [1961] 3 All E.R. 523 (U.K. H.L.); R. v. Gillis (1973), 13 C.C.C.(2d) 362 (B.C. Co. Ct.); R. v. O'Brien, [1966] 3 C.C.C. 288 (N.B. C.A.).

FN14. R. v. Fraser (1997), 6 C.R. (5th) 420 (Ont. C.A.).

FN15. R. v. Warsing (1997), 119 C.C.C. (3d) 385 (B.C. C.A.); affirmed [1998] 3 S.C.R.579 (S.C.C.) (insanity compelling conclusion if history and other facts described in freshevidence established and believed; new trial ordered).

FN16. R. v. Craig (1974), 22 C.C.C. (2d) 212 (Alta. T.D.) (psychopathic condition dis-ease of mind); see also R. v. Simpson (1977), 16 O.R. (2d) 129 (Ont. C.A.); Chartrand v.R., [1977] 1 S.C.R. 314 (S.C.C.).

FN17. Bratty v. Attorney-General for Northern Ireland, [1961] 3 All E.R. 523 (U.K.H.L.); R. v. S. (G.) (1995), 103 C.C.C. (3d) 467 (Ont. C.A.); R. v. Weldon (1995), 86O.A.C. 362 (Ont. C.A.); leave to appeal refused (1996), 94 O.A.C. 400 (S.C.C.)(uncontradicted expert evidence of paranoid schizophrenia leading to no other reason-able conclusion than that accused mentally disordered); R. v. W. (J.M.) (1998), 123C.C.C. (3d) 245 (B.C. C.A.) (schizophrenia); see also R. v. Hilton (1977), 34 C.C.C. (2d)206 (Ont. C.A.) (schizophrenic psychosis); R. v. Gorecki (No. 2) (1976), 14 O.R. (2d)218 (Ont. C.A.); R. v. Mailloux (1986), 25 C.C.C. (3d) 171 (Ont. C.A.); affirmed [1988]2 S.C.R. 1029 (S.C.C.) (toxic psychosis).

FN18. R. v. Charest (1990), 76 C.R. (3d) 63 (Que. C.A.).



FN19. R. v. Rabey (1977), 40 C.R.N.S. 46 (Ont. C.A.); affirmed [1980] 2 S.C.R. 513(S.C.C.); see also R. v. Oakley (1986), 24 C.C.C. (3d) 351 (Ont. C.A.).

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CED Criminal Law — Defences II.4.(f).(ii)Canadian Encyclopedic Digest



(ii) — Delusions


To check the currency of the title, please refer to the subject title page.II.4.(f).(ii)

See Canadian Abridgment: CRM.V.14.a.i.E Criminal law — Defences — Mental disorder —Requirements — Disease of mind — Delusions

§100 Where a person has committed an act as a result of a delusion, a defence of mental dis-order may be raised if that person was incapable of appreciating the nature and quality of theact or omission, or of knowing that it was wrong.[FN1]

FN1. R. v. Ratti, [1991] 1 S.C.R. 68 (S.C.C.) (where accused knowing act would be mor-ally condemned by reasonable members of society, delusion not providing shield); R. v.Oommen (1993), 21 C.R. (4th) 117 (Alta. C.A.); affirmed (1994), 30 C.R. (4th) 195(S.C.C.) (Criminal Code, s. 16(1) embracing circumstances of insane delusion); R. v.Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.) (old Criminal Code, s. 16(3) redundant); R. v.Budic, [1979] 1 W.W.R. 11 (Alta. C.A.) (delusions of being poisoned); R. v. Riel (No. 2)(1885), 2 Man. R. 321 (Man. Q.B.); leave to appeal refused (1885), 1885 CarswellMan 1(Manitoba P.C.); R. v. W. (J.M.) (1998), 123 C.C.C. (3d) 245 (B.C. C.A.) (accused men-tally disordered but aware that acts morally wrong; despite delusions, accused retainingcapacity to rationally decide whether or not to carry out plan knowing it to be legally andmorally wrong; conviction affirmed); R. v. W. (J.M.) (1998), 123 C.C.C. (3d) 245 (B.C.C.A.) (where accused understood right and wrong and chose to act on delusions no men-tal disorder defence).

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CED Criminal Law — Defences II.4.(f).(ii) Page 1


CED Criminal Law — Defences II.4.(f).(iii)Canadian Encyclopedic Digest



(iii) — Meaning of "Incapable"


To check the currency of the title, please refer to the subject title page.II.4.(f).(iii)

See Canadian Abridgment: CRM.V.14.a.ii Criminal law — Defences — Mental disorder —Requirements — Appreciation of nature and quality of act

§101 A person is incapable when there is a complete loss of ability to appreciate the natureand quality of the act, or of knowing the act or omission is wrong. It is not merely an inabilityto calmly consider the act.[FN1]

FN1. R. v. Schwartz, [1977] 1 S.C.R. 673 (S.C.C.).

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CED Criminal Law — Defences II.4.(f).(iii) Page 1


CED Criminal Law — Defences II.4.(f).(iv)Canadian Encyclopedic Digest



(iv) — Meaning of "Appreciate"


To check the currency of the title, please refer to the subject title page.II.4.(f).(iv)


§102 A person appreciates the nature and quality of an act when there is an understanding ofthe physical nature, character and consequences of the act. A person may appreciate an acteven though lacking appropriate feelings of remorse or guilt for what was done. An incapacityto appreciate the penal consequences of an act does not assist an accused in raising a mentaldisorder defence.[FN1]

FN1. R. c. Landry, [1991] 1 S.C.R. 99 (S.C.C.) (accused incapable of appreciating phys-ical consequence protected); R. v. Abbey, [1982] 2 S.C.R. 24 (S.C.C.) (appreciation lim-ited to appreciation of physical consequences, not penal consequences); see also Kjeld-sen v. R., [1981] 2 S.C.R. 617 (S.C.C.); R. v. Kirkby (1985), 47 C.R. (3d) 97 (Ont. C.A.);leave to appeal refused (1986), 54 C.R. (3d) xxvii (S.C.C.) (in exceptional cases, insan-ity defence should go to jury even if all experts giving evidence accused appreciatingnature and quality of act or knowing act legally wrong).

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CED Criminal Law — Defences II.4.(f).(iv) Page 1


CED Criminal Law — Defences II.4.(f).(v)Canadian Encyclopedic Digest



(v) — Meaning of "Nature and Quality"


To check the currency of the title, please refer to the subject title page.II.4.(f).(v)


§103 The nature and quality of an act refers to its physical characteristics and con-sequences.[FN1]

FN1. R. c. Landry, [1991] 1 S.C.R. 99 (S.C.C.); R. v. Abbey, [1982] 2 S.C.R. 24(S.C.C.); see also R. v. Schwartz, [1977] 1 S.C.R. 673 (S.C.C.) (nature and quality deal-ing with physical character of act); R. v. Harrop, [1940] 3 W.W.R. 77 (Man. C.A.); R. v.Cracknell, [1931] O.R. 634 (Ont. C.A.).

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CED Criminal Law — Defences II.4.(f).(v) Page 1


CED Criminal Law — Defences II.4.(f).(vi)Canadian Encyclopedic Digest



(vi) — Meaning of "Knowing"


To check the currency of the title, please refer to the subject title page.II.4.(f).(vi)

See Canadian Abridgment: CRM.V.14.a.iii Criminal law — Defences — Mental disorder —Requirements — Knowledge of wrongful act or omission

§104 To know is to merely be aware of the physical character of the act without necessarilyhaving perception and ability to perceive the consequences, impact and results of the physicalact, elements which are necessary for appreciation.[FN1]

FN1. R. v. Barnier, [1980] 1 S.C.R. 1124 (S.C.C.); see also Cooper v. R., [1980] 1S.C.R. 1149 (S.C.C.) (appreciation being important additional requirement to mereknowledge of physical act); R. v. Winters (1985), 51 Nfld. & P.E.I.R. 271 (Nfld. C.A.)(knowing and appreciating not synonymous).

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CED Criminal Law — Defences II.4.(f).(vi) Page 1


CED Criminal Law — Defences II.4.(f).(vii)Canadian Encyclopedic Digest



(vii) — Meaning of "Wrong"


To check the currency of the title, please refer to the subject title page.II.4.(f).(vii)

See Canadian Abridgment: CRM.V.14.a.iii Criminal law — Defences — Mental disorder —Requirements — Knowledge of wrongful act or omission

§105 A person may be aware that it is ordinarily wrong to commit a crime, but by reason ofmental disorder may believe that it would be "right" according to the ordinary morals of soci-ety to commit a crime. Moral "wrong" is not to be judged by personal standards, but by an ac-cused's awareness that society regards the act as wrong. An accused may not substitute his orher own moral code for that of society.[FN1]

FN1. R. v. Chaulk, [1990] 3 S.C.R. 1303 (S.C.C.) (insanity available as defence whereaccused incapable of knowing act legally or morally wrong); R. v. Proctor, [1992] 2W.W.R. 289 (Man. C.A.) ("wrong" not concerned only with formal law, but with ordin-ary standards of society); R. v. Oommen (1994), 30 C.R. (4th) 195 (S.C.C.) (issue wheth-er accused possessing capacity of ordinary person to know that act wrong in context ofstandards of ordinary person); R. v. Worth (1995), 40 C.R. (4th) 123 (Ont. C.A.); leaveto appeal refused (1996), 109 C.C.C. (3d) vi (note) (S.C.C.) (wrong meaning legally ormorally wrong); R. v. W. (J.M.) (1998), 123 C.C.C. (3d) 245 (B.C. C.A.) (accused men-tally disordered but aware that acts morally wrong; despite delusions, accused retainingcapacity to rationally decide whether or not to carry out plan knowing it be legally andmorally wrong; conviction affirmed).

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CED Criminal Law — Defences II.4.(f).(vii) Page 1


CED Criminal Law — Defences II.4.(f).(viii)Canadian Encyclopedic Digest



(viii) — Automatism and Mental Disorder


To check the currency of the title, please refer to the subject title page.II.4.(f).(viii)

See Canadian Abridgment: CRM.V.3 Criminal law — Defences — Automatism

§106 Where a person has acted in a state of automatism brought on by a malfunction of themind, or by a mental disorder that had its source primarily in some subjective condition orweakness internal to the accused, it may be considered a disease of the mind, and a mentaldisorder defence may be available. The ordinary stresses and disappointments of life that arecommon to all people do not constitute an external cause explaining a malfunctioning of themind, which takes it out of the category of a disease of the mind. A defence of non-insaneautomatism is not available for acts carried out where an accused is under such a subjectivecondition, weakness, stress or disappointment.[FN1]

FN1. R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.); R. v. Stone (1997), 6 C.R. (5th) 367(B.C. C.A.); affirmed (1999), 24 C.R. (5th) 1 (S.C.C.) (accused stabbing wife 47 timesfollowing verbal abuse; facts possibly raising insane automatism or provocation; no reas-on to charge jury on non-insane automatism); see also R. v. Revelle (1979), 48 C.C.C.(2d) 267 (Ont. C.A.); affirmed (1981), 61 C.C.C. (2d) 575 (note) (S.C.C.) (where ac-cused in state of automatism and disease of mind being contributing factor along with al-cohol and other illness, defence being insanity, not non-insane automatism); R. v. Oakley(1986), 24 C.C.C. (3d) 351 (Ont. C.A.); R. v. Chetwynd (1986), 74 N.S.R. (2d) 75 (N.S.C.A.) (insane automatism caused by alcoholic blackout argued, but not put to jury as noevidence of disease of mind); R. v. Parks (1990), 78 C.R. (3d) 1 (Ont. C.A.); affirmed[1992] 2 S.C.R. 871 (S.C.C.) (somnambulism may be disease of mind).

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CED Criminal Law — Defences II.4.(f).(viii) Page 1


CED Criminal Law — Defences II.4.(g)Canadian Encyclopedic Digest


4 — Mental Disorder(g) — Consequence of Mental Disorder Verdict


To check the currency of the title, please refer to the subject title page.II.4.(g)

See Canadian Abridgment: CRM.VIII.10.b Criminal law — Trial procedure — Verdict — Notcriminally responsible by reason of mental disorder

§107 Where a verdict of not criminally responsible on account of mental disorder is renderedin respect of an accused, he or she will be dealt with by the Review Board. The Review Boardmay make one of several dispositions, including discharge, discharge with conditions or de-tention.[FN1]

§108 Under the old law of insanity, it was preferable that the trial judge inform a jury of theconsequences of a verdict of not guilty on account of insanity, to avoid speculation by the juryon what would happen to the accused in that event.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 672.54 [en. S.C. 1991, c. 43, s. 4; am.2005, c. 22, s. 20]; Orlowski v. British Columbia (Attorney General) (1992), 75 C.C.C.(3d) 138 (B.C. C.A.) (difference between "threat" and "significant threat"); Winko v.Forensic Psychiatric Institute (1999), 25 C.R. (5th) 1 (S.C.C.) (offender found not crim-inally responsible due to mental disorder entitled to absolute discharge unless board orcourt finding that offender posing significant threat to safety of public; "significantthreat" meaning relative risk of physical or psychological harm to members of publicbeyond merely trivial or annoying; Criminal Code, s. 672.54 not violating Charter, ss. 7,15(1)); Bese v. Forensic Psychiatric Institute (1999), 25 C.R. (5th) 68 (S.C.C.); Orlowskiv. Forensic Psychiatric Institute (1999), 25 C.R. (5th) 76 (S.C.C.); R. v. Lepage (1999),25 C.R. (5th) 84 (S.C.C.); R. v. Jones (1994), 27 C.R. (4th) 238 (Ont. C.A.) (issue on re-lease disposition one of probability; absolute discharge rejected on appeal); Davidson v.British Columbia (Attorney General) (1993), 87 C.C.C. (3d) 269 (B.C. C.A.) (task ofboard in context of likelihood of threat to public); but see R. v. Hoeppner (1999), 25C.R. (5th) 91 (Man. C.A.); referred for further consideration (1999), 66 C.R.R. (2d) 375(note) (S.C.C) (Criminal Code, ss. 672.54, 672.81(1) violating Charter, s. 7, without cap-ping provisions; capping provisions not proclaimed in force).

FN2. R. v. Jollimore (1985), 19 C.C.C. (3d) 510 (N.S. C.A.); see also R. v. Conkie,

CED Criminal Law — Defences II.4.(g) Page 1


[1978] 3 W.W.R. 493 (Alta. C.A.).

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CED Criminal Law — Defences II.4.(g) Page 2


CED Criminal Law — Defences II.4.(h)Canadian Encyclopedic Digest


4 — Mental Disorder(h) — Condition Short of Mental Disorder


To check the currency of the title, please refer to the subject title page.II.4.(h)

See Canadian Abridgment: CRM.V.14 Criminal law — Defences — Mental disorder

§109 Where an accused is charged with an offence which requires proof of a specific intent,evidence that the accused was suffering from a disease of the mind, although falling short ofproof of mental disorder, may nevertheless be evidence to negative the specific intent requiredfor the charged offence.[FN1]

§110 Persons suffering from minor mental and emotional disorders may successfully defendcharges of shoplifting or theft by production of evidence to the effect that due to their mentalstate they did not form the specific intent to steal.[FN2]

FN1. R. v. Swain, [1991] 1 S.C.R. 933 (S.C.C.) (evidence of planning or deliberation orspecific intent for murder may be denied by evidence of mental impairment); R. c. Leb-lanc (1991), 4 C.R. (4th) 98 (Que. C.A.); leave to appeal refused (1991), 136 N.R. 410(note) (S.C.C.); R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.); R. v. Baltzer(1974), 27 C.C.C. (2d) 118 (N.S. C.A.); R. v. Lechasseur (1977), 1 C.R. (3d) 190 (Que.C.A.); R. v. Hilton (1977), 34 C.C.C. (2d) 206 (Ont. C.A.); R. v. Wright, [1979] 5W.W.R. 481 (Alta. C.A.); leave to appeal refused (1979), 29 N.R. 623n (S.C.C.)(evidence relevant not to issue of capacity, but for purpose of showing accused not form-ing intent); R. v. Kirkby (1985), 47 C.R. (3d) 97 (Ont. C.A.); leave to appeal refused(1986), 54 C.R. (3d) xxvii (S.C.C.) (planned and deliberate murder); R. v. Rabey (1977),40 C.R.N.S. 46 (Ont. C.A.); affirmed [1980] 2 S.C.R. 513 (S.C.C.) (medical evidence re-jected for insanity defence may be considered on issue of existence of specific intent); R.v. Fournier (1982), 30 C.R. (3d) 346 (Que. C.A.); Chartrand v. R., [1977] 1 S.C.R. 314(S.C.C.) (diminished responsibility not defence); R. c. Listes (1994), 36 C.R. (4th) 259(Que. C.A.) (evidence of rage and morbid jealousy coupled with alcoholic condition cap-able of reducing murder to manslaughter).

FN2. R. v. Leclair (1979), 11 C.R. (3d) 287 (Ont. C.A.) (theft being crime of specific in-tent); R. v. Gorman (1972), 9 C.C.C. (2d) 318 (Ont. C.A.); R. v. Clarke (1971), 56 Cr.App. R. 225 (Eng. C.A.) (evidence of depression suffered by accused shoplifter suffi-

CED Criminal Law — Defences II.4.(h) Page 1


cient to quash conviction); R. v. Rogers (1965), 48 C.R. 90 (B.C. C.A.) (insulin shockconsidered as defence to shoplifting).

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CED Criminal Law — Defences II.4.(h) Page 2


CED Criminal Law — Defences III.1.(a)Canadian Encyclopedic Digest

Criminal Law — DefencesIII — Justifications

1 — Defence of Property(a) — Justifiable Force to Prevent Injury to Property


To check the currency of the title, please refer to the subject title page.III.1.(a)

See Canadian Abridgment: CRM.V.6 Criminal law — Defences — Defence of property

§111 A person in defence of property may use as much force as is reasonably necessary toprevent the commission of an offence for which, if it were committed, the offender might bearrested without warrant and that would be likely to cause immediate and serious injury to theproperty of any person.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 27(a) (reasonable belief in anything beingdone to property amounting to offence mentioned in s. 27(a) also warranting use of forceby authority of s. 27(b)); see also R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.); R. v.Figueira (1981), 63 C.C.C. (2d) 409 (Ont. C.A.) (where overlap of s. 27 with other de-fences, counsel should request it be put to jury); R. v. Scopelliti (1981), 34 O.R. (2d) 524(Ont. C.A.) (use of deadly force justified only under ss. 27, 34 of Criminal Code); R. v.Budgell (1986), 185 A.P.R. 181 (Nfld. Dist. Ct.) (firing of several shots at poachers notjustified); R. v. Clark, [1983] 4 W.W.R. 313 (Alta. C.A.) (defender of property not ex-pected to measure necessary force with nicety).

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CED Criminal Law — Defences III.1.(a) Page 1


CED Criminal Law — Defences III.1.(b)Canadian Encyclopedic Digest


1 — Defence of Property(b) — Taking Personal Property from Trespasser


To check the currency of the title, please refer to the subject title page.III.1.(b)

See Canadian Abridgment: CRM.V.6.b Criminal law — Defences — Defence of property —Personal property

§112 Every person who is in peaceable possession of personal property, and everyone law-fully assisting him or her, is justified in preventing a trespasser from taking it or in taking itfrom a trespasser who has taken the property, if he or she does not strike or cause bodily harmto the trespasser.[FN1]

§113 Where a person who is in peaceable possession of personal property lays hands upon it,a trespasser who persists in attempting to keep it or to take it from the person in peaceablepossession, or from anyone lawfully assisting him or her, is deemed to commit an assaultwithout justification or provocation.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 38(1); R. v. Sidhu (2005), 2005 Carswel-lOnt 150 (Ont. C.J.); see also R. v. Weare (1983), 4 C.C.C. (3d) 494 (N.S. C.A.)(accused acquitted for unlawfully pointing firearm at sheriff attempting to repossess fur-niture at accused's home; accused using no more force than, on reasonable grounds, be-lieving necessary); R. v. Doucette (1960), 33 C.R. 174 (Ont. C.A.) (conduct of bailiffseizing property considered); R. c. Auger, [1987] R.J.Q. 1475 (Que. Mag. Ct.) (towed carmay be taken).

FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 38(2); see also R. v. Baxter (1975), 33C.R.N.S. 22 (Ont. C.A.) (deemed assault under s. 41(2), which is similar to s. 38(2), in-terpreted to mean that mere passive resistance not amounting to deemed assault; must besome force used).

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CED Criminal Law — Defences III.1.(b) Page 1


CED Criminal Law — Defences III.1.(c)Canadian Encyclopedic Digest


1 — Defence of Property(c) — Personal Property and Claim of Right


To check the currency of the title, please refer to the subject title page.III.1.(c)

See Canadian Abridgment: CRM.V.6.b Criminal law — Defences — Defence of property —Personal property

§114 Everyone who is in peaceable possession of personal property under a claim ofright,[FN1] and everyone acting under his or her authority, is protected from criminal respons-ibility for defending that possession, even against a person entitled by law to possession of it,if he or she uses no more force than is necessary.[FN2]

§115 Everyone who is in possession of personal property, but does not claim it as of right ordoes not act under the authority of a person who claims it as of right, is not justified or protec-ted from criminal responsibility for defending such possession against a person who is entitledby law to possession of it.[FN3]

FN1. R. v. Breed, [1956] Crim. L.R. 199 (Eng. C.A.) (claim of right not necessarilyclaim of legal right, but claim accused honestly believing to be right).

FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 39(1); see also R. v. Doucette (1960), 33C.R. 174 (Ont. C.A.); R. v. Nykolyn, [1949] S.C.R. 392 (S.C.C.) (person in peaceablepossession of suitcases under claim of right entitled to resist persons attempting to takethem); R. v. Lei (1997), 120 C.C.C. (3d) 441 (Man. C.A.); leave to appeal refused(1998), 228 N.R. 195 (note) (S.C.C.) (honest but mistaken belief in entitlement); R. v.Sidhu (2005), 2005 CarswellOnt 150 (Ont. C.J.).


END OF DOCUMENT

CED Criminal Law — Defences III.1.(c) Page 1


CED Criminal Law — Defences III.1.(d)Canadian Encyclopedic Digest


1 — Defence of Property(d) — Unlawful Entry of Dwelling-House


To check the currency of the title, please refer to the subject title page.III.1.(d)

See Canadian Abridgment: CRM.V.6.a Criminal law — Defences — Defence of property —Dwelling house and real property

§116 Everyone who is in peaceable possession of a dwelling-house, and everyone lawfully as-sisting or acting under this authority, is justified in using as much force as is necessary to pre-vent any person from forcibly breaking into or forcibly entering the dwelling-house withoutlawful authority.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 40; see also R. v. Clark, [1983] 4 W.W.R.313 (Alta. C.A.) (defence of property that would justify killing only arising under self-defence; see s. 34); but see R. v. Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.) (deadlyforce justified under s. 27); R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.); R. v. Hussey(1924), 18 Cr. App. R. 160 (Eng. C.A.) (in defence of house, owner or family may killtrespasser); R. v. Stonechild (1981), 61 C.C.C. (2d) 251 (Man. Co. Ct.); R. v. Kephart,[1989] 1 W.W.R. 529 (Alta. C.A.) (accused entitled to resist police).

END OF DOCUMENT

CED Criminal Law — Defences III.1.(d) Page 1


CED Criminal Law — Defences III.1.(e)Canadian Encyclopedic Digest


1 — Defence of Property(e) — Trespassing on Dwelling-House or Real Property


To check the currency of the title, please refer to the subject title page.III.1.(e)

See Canadian Abridgment: CRM.V.6.a.i Criminal law — Defences — Defence of property —Dwelling house and real property — Removal of trespasser

§117 Everyone who is in peaceable possession of a dwelling-house or real property, andeveryone lawfully assisting or acting under his or her authority, is justified in using force toprevent any person from trespassing on the dwelling-house or real property, or to remove atrespasser therefrom, if he or she uses no more force than is necessary.[FN1]

§118 Defence of a house or real property against a trespasser contains four elements: the ac-cused must be in possession of the land; the possession must be peaceable; the victim of theassault must be a trespasser; and the force used to eject the trespasser must be reasonable inthe circumstances.[FN2]

§119 A trespasser who resists an attempt by a person who is in peaceable possession of adwelling-house or real property, or a person lawfully assisting or acting under his or her au-thority to prevent entry or to remove the trespasser, shall be deemed to commit an assaultwithout justification or provocation.[FN3]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 41(1); R. v. Jamieson (2002), 166 C.C.C.(3d) 501 (B.C. C.A.) (victim sitting on floor not trespasser); R. v. Keating (1992), 76C.C.C. (3d) 570 (N.S. C.A.) (invitee on private property may cease to have that statusand become trespasser; accused in any event may hold honest belief that person tres-passing); R. v. Miller, [1988] 1 S.C.R. 230 (S.C.C.) (accused striking peace officer overhead with bottle; no justification); R. v. Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.)(section applying to commercial and residential premises); R. v. Baxter (1975), 33C.R.N.S. 22 (Ont. C.A.) (shooting at mere trespasser not justified); R. v. Matson (1970),1 C.C.C. (2d) 374 (B.C. C.A.) (section not applicable where occupier assaulting tres-passer trying to leave); R. v. MacLeod (1987), 77 N.S.R. (2d) 87 (N.S. C.A.); R. v. Colet,[1981] 1 S.C.R. 2 (S.C.C.) (police trespassers); R. v. Dixon (1993), 26 C.R. (4th) 173(N.B. C.A.) (breaking bottle and threatening use of bottle not unjustified); R. v. Swenson,[1994] 9 W.W.R. 124 (Sask. C.A.) (night-club bouncer not entitled to defence where us-

CED Criminal Law — Defences III.1.(e) Page 1


ing unreasonable force; injured customer invitee, not trespasser); R. v. Rossignol (2005),280 N.B.R. (2d) 312 (N.B. C.A.) (s. 41 not applying when force used and death result-ing); R. v. McKay (2007), 2007 CarswellMan 88 (S.C.C.) (defence of property cannotjustify commission of aggravated assault; findings of trial judge not sufficient to enterconviction; new trial ordered); see also R. v. Gunning (2005), 196 C.C.C. (3d) 123(S.C.C.) (accused charged with second degree murder in respect of fatal shooting of vic-tim who entered accused's home uninvited during party; accused denying intent to killvictim, rather testifying that he had taken out and loaded gun to intimidate or scare vic-tim into leaving and gun then discharging accidentally; trial judge erring in failing to in-struct jury regarding defence of house or property; while intentional shooting could notbe justified on this basis, defence advanced in respect of use of firearm prior to and up toalleged accidental shooting).

FN2. R. v. Born With A Tooth (1992), 4 Alta. L.R. (3d) 289 (Alta. C.A.) (peaceable pos-session of Indians on Crown land may be relevant aspect); R. v. George (2000), 145C.C.C. (3d) 405 (Ont. C.A.); leave to appeal refused (2001), 2001 CarswellOnt 160(S.C.C.) (no defence where uncertainty over peaceable possession); R. v. Garvie (2004),2004 CarswellOnt 1561 (Ont. S.C.J.) (accused throwing wife out of apartment becauseshe wanted to take daughter home, not because she was trespasser; whether section ap-plying; whether force used unreasonable).

FN3. Criminal Code, R.S.C. 1985, c. C-46, s. 41(2); R. v. Baxter (1975), 33 C.R.N.S. 22(Ont. C.A.) (mere passive resistance by trespasser not assault; forcible resistance re-quired); R. v. Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.); R. v. Richardson (1983), 8C.C.C. (3d) 309 (N.S. C.A.); R. v. Kellington, [1972] 5 W.W.R. 396 (B.C. S.C.) (overtact of removal and overt act of resistance required for assault); see also R. v. Spencer,[1978] 1 W.W.R. 250 (B.C. S.C.) (common hallway of apartment building not propertyof apartment tenant); R. v. Miller (1986), 25 C.C.C. (3d) 554 (Sask. C.A.); affirmed[1988] 1 S.C.R. 230 (S.C.C.); R. v. Stanley, [1977] 4 W.W.R. 578 (B.C. C.A.) (deceasedresisting attempt to remove him from residence committing unprovoked assault); R. v.Alkadri (1986), 29 C.C.C. (3d) 467 (Alta. C.A.); leave to appeal refused (1986), 29C.C.C. (3d) 467n (S.C.C.) (accused claiming that murder victim becoming resisting tres-passer; accused entitled to have s. 41(2) put to jury); see also R. v. Gunning (2005), 196C.C.C. (3d) 123 (S.C.C.) .

END OF DOCUMENT



CED Criminal Law — Defences III.1.(f)Canadian Encyclopedic Digest


1 — Defence of Property(f) — Lawful Entry of Dwelling-House or Real Property


To check the currency of the title, please refer to the subject title page.III.1.(f)

See Canadian Abridgment: CRM.V.6.a Criminal law — Defences — Defence of property —Dwelling house and real property

§120 Everyone is justified in peaceably entering a dwelling-house or real property by day totake possession of it if he or she, or some other person under whose authority he or she acts, islawfully entitled to possession of it.[FN1]

§121 Where a person not having peaceable possession of a dwelling-house or real propertyunder a claim of right, or not acting under the authority of such a person, assaults a personwho is lawfully entitled to possession of it and who is entering it peaceably by day to takepossession of it, for the purpose of preventing him or her from entering, the assault is deemedto be without justification or provocation.[FN2]

§122 Where a person having peaceable possession of a dwelling-house or real property undera claim of right, or a person acting under the authority of such a person, assaults any personwho is lawfully entitled to possession of it and who is entering it peaceably by day to takepossession of it, for the purpose of preventing him or her from entering, the assault is deemedto be provoked by the person who is entering.[FN3]




END OF DOCUMENT

CED Criminal Law — Defences III.1.(f) Page 1


CED Criminal Law — Defences III.1.(g)Canadian Encyclopedic Digest


1 — Defence of Property(g) — Necessary Force


To check the currency of the title, please refer to the subject title page.III.1.(g)


§123 A person, in defending his or her own home or property, is not obliged to retreat, even ifthis is possible. A person is entitled to stand his or her ground in defence of such property, butit is a question of fact on all of the evidence whether the force used was necessary. A personhas a right to defend his or her property, but is not entitled to kill a trespasser in the absence ofsome threat to his or her person.[FN1]

FN1. R. v. Clark, [1983] 4 W.W.R. 313 (Alta. C.A.) (not reasonable to kill anothermerely to prevent crime directed only against property); R. v. Deegan, [1979] 6 W.W.R.97 (Alta. C.A.) (person need not give up house to adversary before using force); R. v.Antley (1963), 42 C.R. 384 (Ont. C.A.) (person on own property not required to retreat);R. v. Jack (1994), 91 C.C.C. (3d) 446 (B.C. C.A.) (accused need not retreat from his ownhome and may defend property); R. v. Rode (2004), 187 C.C.C. (3d) 1 (B.C. C.A.) (noobligation to retreat from home); R. v. Rossignol (2005), 280 N.B.R. (2d) 312 (N.B.C.A.) (s. 41 not applying when force used and death resulting); but see R. v. Hussey(1924), 18 Cr. App. R. 160 (Eng. C.A.) (in defence of house, owner or family may killtrespasser).

END OF DOCUMENT

CED Criminal Law — Defences III.1.(g) Page 1


CED Criminal Law — Defences III.1.(h)Canadian Encyclopedic Digest


1 — Defence of Property(h) — Excessive Force


To check the currency of the title, please refer to the subject title page.III.1.(h)


§124 Everyone who is authorized by law to use force is criminally responsible for any excessthereof according to the nature and quality of the act that constitutes the excess.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 26; R. v. Clark, [1983] 4 W.W.R. 313(Alta. C.A.) (intentionally stabbing people leading to finding of intent to cause grievousbodily harm); R. v. Figueira (1981), 63 C.C.C. (2d) 409 (Ont. C.A.) (infliction of seriousinjury with knife not justified merely to prevent trespass); R. v. Paquin (1983), 29 Sask.R. 78 (Sask. Q.B.) (bar bouncer breaking customer's jaw not using unreasonable force);R. v. Miller (1986), 25 C.C.C. (3d) 554 (Sask. C.A.); affirmed [1988] 1 S.C.R. 230(S.C.C.).

END OF DOCUMENT

CED Criminal Law — Defences III.1.(h) Page 1


CED Criminal Law — Defences III.2Canadian Encyclopedic Digest


2 — Obedience to Superior Orders


To check the currency of the title, please refer to the subject title page.III.2

See Canadian Abridgment: CRM.V.18 Criminal law — Defences — Obedience to orders

§125 A person charged with genocide, a crime against humanity, or a war crime[FN1] mayraise a defence of obedience to superior orders if: (a) the accused was under a legal obligationto obey the order; (b) the accused did not know that the order was unlawful; and (c) the orderwas not manifestly unlawful.[FN2]

§126 It is a well recognized principle in both the armed forces and police forces that com-mands from superior officers must be obeyed. It follows that it is not fair to punish membersof the military or police officers for obeying and carrying out orders unless the orders weremanifestly unlawful.[FN3]

§127 A peace officer, public officer or member of the armed forces is precluded from raisinga defence of superior orders in instances involving torture.[FN4]

FN1. Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, ss. 11, 14; seealso Criminal Code, R.S.C. 1985, c. C-46, ss. 32(2) (those bound by military law justi-fied in obeying superior to suppress riot), 32(3) (civilians justified in obeying peace of-ficer); R. v. Trainer (1864), 176 E.R. 488 (civilian justified in obeying directions of su-perior; civilian acquitted of manslaughter charge); but see R. v. Berrie (1975), 30C.R.N.S. 145 (B.C. Prov. Ct.) (penitentiary officers shaving victim by force guilty of as-sault notwithstanding orders); Brannan v. Peek, [1948] 1 K.B. 68 (Eng. K.B.) (order ofsuperior to police officer affording no defence); R. v. Lemire, [1965] S.C.R. 174(S.C.C.).

FN2. Keighley v. Bell (1866), 176 E.R. 781 (Eng. C.P.) (officer or soldier justified inacting under not manifestly illegal orders of superior); R. v. Smith (1900), 17 CapeS.C.R. 561 (Special Ct. of Cape Colony) (South African soldier shooting farmhand un-der orders from superior; soldier acquitted of murder); Commonwealth v. Shortall(1903), 55 Atlantic R. 952 (Penn. S.C.) (soldier bound to obey orders of superior; ordersprotecting soldier); State v. Roy (1951), 64 S.E. 2d 840 (N.C. S.C.) (order by superior of-ficer to assault female not justified; order unlawful and not related to military duty); R. v.

CED Criminal Law — Defences III.2 Page 1


Perzenowski, [1946] 3 W.W.R. 678 (Alta. C.A.) (orders no excuse for killing fellowprisoner of war); R. v. Kaehler, [1945] 1 W.W.R. 566 (Alta. C.A.) (prisoners of war con-victed for stealing car); R. v. MacKay (1980), 54 C.C.C. (2d) 129 (S.C.C.) (servicemanmay be tried in military court); see also National Defence Act, R.S.C. 1985, c. N-5, s. 74[am. 1998, c. 35, s. 25] (every person disobeying lawful command of superior officerguilty of offence).

FN3. R. v. Finta (1994), 88 C.C.C. (3d) 417 (S.C.C.); reconsideration refused (June 23,1994), Doc. 23023, 23097 (S.C.C.) (even where order manifestly unlawful, defenceavailable if accused under real and imminent compulsion or threat); but see CrimesAgainst Humanity and War Crimes Act, S.C. 2000, c. 24, ss. 11, 14.

FN4. Criminal Code, R.S.C. 1985, c. C-46, s. 269.1(3) [en. R.S.C. 1985, c. 10 (3rdSupp.), s. 2]; see also Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24,s. 14(2).

END OF DOCUMENT





3 — Protection of Persons Administering and Enforcing the Law(a) — Conduct Required or Authorized by Law



See Canadian Abridgment: CRM.V.13.a Criminal law — Defences — Lawful authority — Toadminister or enforce law

§128 Everyone who is required or authorized by law to do anything in the administration orenforcement of the law as a private person, as a peace or public officer, in aid of a peace orpublic officer or by virtue of his or her office is, if acting on reasonable and probable grounds,justified in doing what he or she is required or authorized to do and in using as much force asis necessary for that purpose.[FN1]

§129 Where a person is required or authorized by law to execute a process or to carry out asentence, he or she or any person who assists him or her is, if acting in good faith, justified inexecuting the process or in carrying out the sentence notwithstanding that the process or sen-tence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdic-tion.[FN2]

§130 A peace officer who is proceeding lawfully to arrest, with or without warrant, any per-son for an offence for which that person may be arrested without warrant, and everyone law-fully assisting the peace officer, is justified, if the person to be arrested takes flight to avoidarrest, in using as much force as is necessary to prevent the escape by flight, unless the escapecan be prevented by reasonable means in a less violent manner.[FN3] The peace officer mustalso believe on reasonable grounds that the force is necessary to protect the peace officer, any-one lawfully assisting the peace officer or any other person from imminent or future death orgrievous bodily harm.[FN4]

FN1. Criminal Code, R.S.C. 1985, c. C-46, ss. 25(1), 25.1 [en. 2001, c. 32, s. 2; am.2005, c. 10, s. 34(1)(f)(ii)] (officer justified in committing unlawful act if properly au-thorized and directed), 494 (where private person authorized to arrest), 495 [am. R.S.C.1985, c. 27 (1st Supp.), s. 75]; R. v. Asante-Mensah (2003), 11 C.R. (6th) 1 (S.C.C.)(latitude for police officers); R. v. Brennan (1989), 75 C.R. (3d) 38 (Ont. C.A.) (s. 25(1)no justification for going through stop sign); R. v. F. (V.A.) (1989), 53 C.C.C. (3d) 74(Sask. Q.B.) (prison guard may rely on s. 25(1)); R. v. Stonechild (1981), 61 C.C.C. (2d)



251 (Man. Co. Ct.) (reasonable and probable being more than mere suspicion); R. v.Finta (1994), 88 C.C.C. (3d) 417 (S.C.C.); application for re-hearing refused (June 23,1994), Doc. 23023, 23097 (S.C.C.) (police officer must obey and implement law unlesslaw manifestly illegal; police officer defence available if order illegal); R. v. Hebert(1996), 107 C.C.C. (3d) 42 (S.C.C.) (ss. 25 and 26 only applying to individuals requiredor authorized by law to use force); Potts v. Edmonton (City) Police Service (2005), 2005CarswellAlta 291 (Alta. Q.B.) (plaintiff inflicting significant bite on officer's leg; singleforceful kick directed by officer towards plaintiff's head separate in time from bite andnot delivered in self-defence, but rather deliberate act as angry response to injury; con-duct not attracting protection of s. 25; liability on civil standard made out); see also R. v.Landry, [1986] 1 S.C.R. 145 (S.C.C.) (peace officer having authority at common law toenter private premises to effect arrest without warrant); Eccles v. Bourque, [1973] 5W.W.R. 434 (B.C. C.A.); affirmed [1975] 2 S.C.R. 739 (S.C.C.) (section not conferringpower to do anything and everything to assist or advance exercise of power); R. v.O'Donnell, [1985] 2 S.C.R. 216 (S.C.C.) (under section, police not to use as much forceas necessary to carry out investigation; force to be used only when warranted for lawfularrest); R. v. Redshaw (1975), 31 C.R.N.S. 255 (Ont. Co. Ct.) (illegal turn by peace of-ficer protected by section); R. v. Godoy (1997), 7 C.R. (5th) 216 (Ont. C.A.); affirmed(1998), 41 O.R. (3d) 95 (S.C.C.); additional reasons at (1998), 21 C.R. (5th) 205(S.C.C.) (police possessing common law authority to enter dwelling-house to investigatedisconnected 9-1-1 call; police acting in course of duty and entry justifiable in circum-stances; accused guilty of assaulting police officer); but see R. v. Walker (1979), 48C.C.C. (2d) 126 (Ont. Co. Ct.) (section not requiring or authorizing police officer to gothrough stop sign to answer bank call); Bottrell v. R. (1981), 22 C.R. (3d) 371 (B.C.C.A.) (circumstances determining amount of force necessary for arrest by peace officer);R. v. Swinimer (1986), 171 A.P.R. 173 (N.S. T.D.) (fact that peace officer doing consid-erable physical damage to plaintiff not precluding application of section; force not re-quired to be measured with nicety); Reynen v. Antonenko, [1975] 5 W.W.R. 10 (Alta.T.D.).

FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 25(2), (3) [re-en. 1994, c. 12, s. 1](persons not justified in using force intended or likely to cause death or grievous bodilyharm); R. v. Berrie (1975), 30 C.R.N.S. 145 (B.C. Prov. Ct.) (forceful shaving of penit-entiary inmate's beard not required or authorized by law); R. v. Devereaux (1996), 112C.C.C. (3d) 243 (Nfld. C.A.) (detainee refusing to sign property release form; statutes,regulations and operational procedures not authorizing forcible return of detainee to cell;peace officer defence available when correctional officer acting in good faith); see alsoYoner, Re (1969), 7 C.R.N.S. 239 (B.C. S.C.); Gaul v. Ellice (Township) (1902), 1902CarswellOnt 101 (Ont. Div. Ct.) (where warrant or process bad in law, persons actingunder it in good faith without culpable negligence protected from criminal responsibil-ity); Bottrell v. R. (1981), 22 C.R. (3d) 371 (B.C. C.A.) (grievous bodily harm meaningserious hurt or pain).

FN3. Criminal Code, R.S.C. 1985, c. C-46, s. 25(4) [re-en. 1994, c. 12, s. 1]; R. v.Roberge, [1983] 1 S.C.R. 312 (S.C.C.) (police officer in fresh pursuit into another



province retaining protection of section); see also Criminal Code, R.S.C. 1985, c. C-46,s. 25(5) [en. 1994, c. 12, s. 1] (use of force in preventing inmate's escape from peniten-tiary); Shynall v. Priestman, [1959] S.C.R. 615 (S.C.C.) (peace officer may be justifiedin using deadly force under section); R. v. Mitchell (1937), 69 C.C.C. 406 (Ont. Co. Ct.)(police officer not justified in shooting innocent party believed to be in flight); Beim v.Goyer, [1965] S.C.R. 638 (S.C.C.); Kirkpatrick v. Lament, [1965] S.C.R. 538 (S.C.C.);R. v. Suchacki, [1923] 3 W.W.R. 1202 (Man. C.A.) (illegal arrest resulting in loss of jur-isdiction); R. c. Gosset, [1993] 3 S.C.R. 76 (S.C.C.); R. v. Tricker (1995), 96 C.C.C. (3d)198 (Ont. C.A.); leave to appeal refused (1996), 103 C.C.C. (3d) vi (note) (S.C.C.).

FN4. Criminal Code, R.S.C. 1985, c. C-46, s. 25(4)(d) [re-en. 1994, c. 12, s. 1].

END OF DOCUMENT





3 — Protection of Persons Administering and Enforcing the Law(b) — Use of Force to Prevent Commission of Offence



See Canadian Abridgment: CRM.V.13.a.ii.C Criminal law — Defences — Lawful authority— To administer or enforce law — Justification for use of force — Preventing commission ofoffence

§131 Everyone is justified in using as much force as is reasonably necessary to prevent thecommission of an offence for which, if it were committed, the person accused of it might bearrested without warrant, and which would be likely to cause immediate and serious injury tothe person or property of anyone.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, ss. 27(a), 27.1 [en. 2004, c. 12, s. 2] (personon aircraft and use of force to prevent offence); R. v. Hebert (1996), 107 C.C.C. (3d) 42(S.C.C.) (s. 27 designed to permit innocent bystander witnessing offence to use force toprevent commission of offence; individual assaulted not entitled to rely on s. 27 as legalauthority for using force to repel assault); see also Criminal Code, R.S.C. 1985, c. C-46,s. 27(b) (anything believed to be offence mentioned in s. 27(a) may also be preventedwith justification); R. v. Figueira (1981), 63 C.C.C. (2d) 409 (Ont. C.A.) (where overlapof section with other defences, counsel should request this defence be put to jury); R. v.Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.) (deadly force may be justified under sec-tion); R. v. Gee, [1982] 2 S.C.R. 286 (S.C.C.) (section not providing partial defencewhere excessive force); R. v. Morris (1981), 23 C.R. (3d) 175 (Alta. Q.B.); R. v. Baxter(1975), 33 C.R.N.S. 22 (Ont. C.A.) (section overlapping with those of defence of personor property); but see R. v. Bridges (1989), 48 C.C.C. (3d) 535 (B.C. S.C.).

END OF DOCUMENT





3 — Protection of Persons Administering and Enforcing the Law(c) — Arrest of Wrong Person



See Canadian Abridgment: CRM.VII.9.e.iii Criminal law — Pre-trial procedure — Arrest —Legality — Arrest of wrong person

§132 A person authorized to execute a warrant to arrest, believing in good faith and on reas-onable and probable grounds that the person arrested is the person named in the warrant, isprotected from criminal responsibility in respect thereof to the same extent as if that personwere the person named in the warrant.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 28(1); see also Criminal Code, R.S.C.1985, c. C-46, s. 28(2) (providing for persons assisting in arrest and keepers of prisonsreceiving and detaining arrested persons).

END OF DOCUMENT





3 — Protection of Persons Administering and Enforcing the Law(d) — Duty of Person Arresting



See Canadian Abridgment: CRM.VII.9.d Criminal law — Pre-trial procedure — Arrest — Du-ties following arrest

§133 It is the duty of everyone who executes a process or warrant to have it with him or her,where it is feasible to do so, and to produce it when requested to do so. It is also the duty ofeveryone who arrests a person, whether with or without warrant, to give notice to that person,where it is feasible to do so, of the process or warrant under which he or she makes the arrest,or the reason for the arrest.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 29(1), (2); see also Criminal Code, R.S.C.1985, c. C-46, s. 29(3) (failure to comply with s. 29(1), (2)); R. v. Fielding (1967), 1C.R.N.S. 221 (B.C. C.A.) (reason for arrest given by stating substance of offencewithout statute and section number); R. v. Gamracy, [1974] S.C.R. 640 (S.C.C.) (peaceofficer discharging duty by telling accused reason for arrest being outstanding warrantwithout giving details of warrant content); R. v. Beaudette (1957), 118 C.C.C. 295 (Ont.C.A.) (person need not be informed if circumstances obvious); R. v. Shore (1960), 129C.C.C. 70 (B.C. C.A.) (person need not be informed of reasons for arrest if knowingreason); but see R. v. Acker (1970), 9 C.R.N.S. 371 (N.S. C.A.) (failure to advise drunk-en accused of arrest and reasons for arrest fatal to assault peace officer charge); R. v.Richard (1974), 27 C.R.N.S. 337 (Que. S.C.) (failure to have available warrant at time ofarrest making arrest unlawful).

END OF DOCUMENT





3 — Protection of Persons Administering and Enforcing the Law(e) — Preventing Breach of the Peace



See Canadian Abridgment: CRM.V.13.a.ii.D Criminal law — Defences — Lawful authority— To administer or enforce law — Justification for use of force — Preventing breach ofpeace

§134 Everyone who witnesses a breach of the peace is justified in interfering to prevent thecontinuance or renewal thereof and may detain any person who commits or is about to join inor to renew the breach of the peace, for the purpose of giving him or her into custody of apeace officer, if he or she uses no more force than is reasonably necessary to prevent the con-tinuance or renewal of the breach of the peace, or than is reasonably proportioned to thedanger to be apprehended from the continuance or renewal of the breach of the peace.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 30; see also Criminal Code, R.S.C. 1985,c. C-46, s. 31 (peace officer justified in arresting those involved in breach of peace andreceiving them in custody); R. v. Doucette (1960), 33 C.R. 174 (Ont. C.A.); Frey v. Fe-doruk, [1950] S.C.R. 517 (S.C.C.) (breach of peace taking place when assault committedon individual or public alarm and excitement caused; mere annoyance or insult not suffi-cient); R. v. Coney (1882), 8 Q.B.D. 534 (Eng. Q.B.) (assault being breach of peace); R.v. Lefebvre (1984), 15 C.C.C. (3d) 503 (B.C. C.A.); R. v. Biron, [1976] 2 S.C.R. 56(S.C.C.); Blanchard v. Galbraith (1966), 10 Crim. L.Q. 122 (Man. Q.B.) (police officermay act on anticipated breach of peace); R. v. Richter (1970), 73 W.W.R. 140 (Alta.Dist. Ct.); R. v. Knowlton, [1974] S.C.R. 443 (S.C.C.); Hayes v. Thompson, [1985] 3W.W.R. 366 (B.C. C.A.) (peace officer may arrest for apprehending breach of peace); R.c. Bélanger (1987), 19 Q.A.C. 161 (Que. C.A.).

END OF DOCUMENT





3 — Protection of Persons Administering and Enforcing the Law(f) — Suppression of Riots



See Canadian Abridgment: CRM.V.13.a.ii.D Criminal law — Defences — Lawful authority— To administer or enforce law — Justification for use of force — Preventing breach ofpeace

§135 Every peace officer is justified in using, or ordering the use of, as much force as he orshe believes, in good faith and on reasonable and probable grounds, is necessary to suppress ariot, and is not excessive, having regard to the danger to be apprehended from the continuanceof the riot.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 32(1); see also Criminal Code, R.S.C.1985, c. C-46, ss. 32(2)-(5), 33 (military and others justified in using force in riot; dutyof officers if rioters not dispersing); St. Pierre v. Boisseau, [1952] Que. Q.B. 292 (Que.C.A.) (all private citizens agents of Crown for suppression of riots); Hébert v. Martin,[1931] S.C.R. 145 (S.C.C.) (constable not liable for killing man in riot when fearing forsafety or life).

END OF DOCUMENT





3 — Protection of Persons Administering and Enforcing the Law(g) — Excessive Force



See Canadian Abridgment: CRM.V.13.a.iii Criminal law — Defences — Lawful authority —To administer or enforce law — Excessive force


FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 26; see also R. v. Gee, [1982] 2 S.C.R. 286(S.C.C.) (no partial defence of justification under s. 27 to reduce murder to man-slaughter); R. v. O'Donnell, [1985] 2 S.C.R. 216 (S.C.C.); R. v. Roberge, [1983] 1 S.C.R.312 (S.C.C.) (firing of three shots by peace officer during car pursuit not excessive); R.v. Berrie (1975), 30 C.R.N.S. 145 (B.C. Prov. Ct.); R. v. Mitchell (1937), 69 C.C.C. 406(Ont. Co. Ct.).

END OF DOCUMENT





4 — Protection of Persons in Authority(a) — Correction of Child by Force



See Canadian Abridgment: CRM.V.13.b Criminal law — Defences — Lawful authority —Physical discipline of children

§137 Every schoolteacher, parent or person standing in place of a parent is justified in usingforce by way of correction toward a pupil or child, as the case may be, who is under his or hercare, if the force does not exceed what is reasonable under the circumstances.[FN1]

§138 What is reasonable under the circumstances only allows for minor corrective force of atransitory or trifling nature. Discipline by use of objects, or blows or slaps to the head is un-reasonable. Punishment stemming from frustration, loss of temper or abusive personality isnot lawful.[FN2]

§139 A person can stand in the place of a parent only if that status is obtained in one of twomanners: the person assumes parental obligations, including financial; or there is a delegationof parental rights by the natural parents.[FN3]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 43; R. v. Ogg-Moss, [1984] 2 S.C.R. 173(S.C.C.) (mentally retarded adult neither child nor pupil, and counsellor not being teach-er or person standing in place of parent); R. v. Nixon, [1984] 2 S.C.R. 197 (S.C.C.); R. v.Halcrow (1993), 80 C.C.C. (3d) 320 (B.C. C.A.); affirmed (1995), 95 C.C.C. (3d) 94(S.C.C.) (accused's religious beliefs not relevant to issue of excessive force); R. v. Atkin-son, [1994] 9 W.W.R. 485 (Man. Prov. Ct.) (use of belt to discipline young childrenprima facie unreasonable; accused acquitted in absence of description of belt or evidenceof how accused using belt); R. v. D. (R.S.) (1995), 102 C.C.C. (3d) 319 (Ont. Prov. Div.)(contemporary community standards relevant to what amount of force reasonable undercircumstances contemplated by s. 43); R. v. M. (R.W.) (1995), 103 C.C.C. (3d) 375(P.E.I. Prov. Ct.) (past reaction of child to less severe forms of punishment possibly jus-tifying imposition of corporal punishment; in circumstances, striking child with belt withsufficient force to leave marks on several parts of child's body constituting excessiveforce); R. v. Graham (1995), 39 C.R. (4th) 339 (N.B. Q.B.) (teacher striking disruptivechild in classroom; lawful in circumstances); R. v. Murphy (1996), 108 C.C.C. (3d) 414



(B.C. C.A.) (delegation of parental authority to uncle acting as babysitter; taping hyper-active child to chair not excessive); see also R. v. Shannon (1966), 49 C.R. 291 (N.B.C.A.) (right to discipline child continuing as long as child residing with and supportedby parent); R. v. Haberstock (1970), 1 C.C.C. (2d) 433 (Sask. C.A.) (honest and reason-able belief may justify punishment from teacher); R. v. Trynchy (1970), 11 C.R.N.S. 95(Y.T. Mag. Ct.) (person standing in place of parent including driver of school bus); R. v.Dimmell (1980), 55 C.C.C. (2d) 239 (Ont. Dist. Ct.) (force used not expected to bemeasured neatly); R. v. K. (M.), [1992] 5 W.W.R. 618 (Man. C.A.); leave to appeal al-lowed [1993] 1 W.W.R. lix (S.C.C.) (kicking son excessive but within acceptable range);R. v. D. (D.) (1991), 65 C.C.C. (3d) 511 (Ont. C.A.) (spanking child lawful if not excess-ive; s. 43 defence must be explained to jury); R. v. Eldridge (1993), 13 Alta. L.R. (3d)196 (Alta. Prov. Ct.) (boyfriend interfering with parent's lawful duty; parent entitled touse reasonable force to prevent interference).

FN2. Canadian Foundation for Children, Youth & the Law v. Canada (Attorney Gener-al) (2004), 180 C.C.C. (3d) 353 (S.C.C.) (mentally retarded adult not a child or pupil);R. v. Poulin (2002), 169 C.C.C. (3d) 378 (P.E.I. T.D.) (biblical imperative to use the rodexcessive); Winnipeg Child & Family Services (Central Area) v. W. (K.L.), [2000] 2S.C.R. 519 (S.C.C.) (parental scope of discretion); R. v. Kaur (2004), 2004 CarswellOnt4592 (Ont. C.J.) (accused acknowledging applying force in form of light slap to cheek ofdaughter who was acting in intentionally disrespectful manner; slap not causing daughterany pain or continuing physical effects, administered for purpose of correcting daugh-ter's disrespectful behaviour and perhaps expressing symbolic disapproval of behaviour;only slaps to head properly characterized as corporal punishment or discipline unreason-able and falling outside scope of s. 43; accused not guilty of assault); R. v. Sinclair(2008), 2008 CarswellMan 55 (Man. C.A.); leave to appeal refused (2008), 2008CarswellMan 351 (S.C.C.) (accused shaking and throwing child on bed; child bouncingoff bed, hitting head on wall; child dying of hematoma; force used by caregiver must befor corrective purposes and reasonable in circumstances; conduct cannot arise out offrustration or anger).

FN3. R. v. F. (V.A.) (1989), 53 C.C.C. (3d) 74 (Sask. Q.B.) (youth worker not assumingobligations of parent); R. v. F. (J.) (1990), 57 C.C.C. (3d) 216 (Ont. Prov. Ct.) (teacheracting lawfully in blocking student and taking by arm).

END OF DOCUMENT





4 — Protection of Persons in Authority(b) — Surgical Operations



See Canadian Abridgment: CRM.V.22 Criminal law — Defences — Surgical operation

§140 Everyone is protected from criminal responsibility for performing a surgical operationupon any person for the benefit of that person if the operation is performed with reasonablecare and skill, and it is reasonable to perform the operation, having regard to the state ofhealth of the person at the time the operation is performed and to all the circumstances of thecase.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 45; B. (N.) v. Hôtel-Dieu de Québec(1992), 69 C.C.C. (3d) 450 (Que. S.C.) (stopping respiratory support justifiable); R. v.Morgentaler (No. 5) (1975), [1976] 1 S.C.R. 616 (S.C.C.) (s. 45 no defence to abortionas otherwise provided for by law); see also R. v. Rogers (1968), 4 C.R.N.S. 303 (B.C.C.A.); leave to appeal refused [1968] S.C.R. ix (S.C.C.) (naturopath guilty of criminalnegligence); R. v. Watson, [1936] 2 W.W.R. 560 (B.C. C.A.) (intoxicated doctor acquit-ted); R. v. Giardine (1939), 71 C.C.C. 295 (Ont. Co. Ct.) (doctor administering poison topatient not grossly negligent and not guilty of criminal negligence); R. v. Simard (1963),43 C.R. 70 (Que. Q.B.) (doctor acting same way as any other doctor with equal qualific-ations; conviction quashed); Wilson v. Swanson, [1956] S.C.R. 804 (S.C.C.).

END OF DOCUMENT





4 — Protection of Persons in Authority(c) — Excessive Force



See Canadian Abridgment: CRM.V.13.a.iii Criminal law — Defences — Lawful authority —To administer or enforce law — Excessive force


FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 26; see also R. v. Taylor, [1985] 3 W.W.R.415 (Alta. C.A.) (tying girl to post and beating her with paddle may be excessive);Campeau v. R. (1951), 14 C.R. 202 (Que. C.A.); R. v. Dupperon, [1985] 2 W.W.R. 369(Sask. C.A.) (beating with belt leaving bruises not justified).

END OF DOCUMENT



CED Criminal Law — Defences III.5Canadian Encyclopedic Digest


5 — Public Good and Obscenity


To check the currency of the title, please refer to the subject title page.III.5

See Canadian Abridgment: CRM.VI.107.d.iii Criminal law — Offences — Obscenity and por-nography — Defences — Public good

§142 A defence of public good is available to an accused charged with any one of a variety ofcriminal offences tending to corrupt morals.[FN1] Where an accused establishes that the pub-lic good was served by the acts that are alleged to constitute the offence, and that the acts al-leged did not extend beyond what served the public good, there will be no conviction. It is aquestion of law whether there is evidence that the act alleged went beyond what served thepublic good. It is a question of fact whether the acts did or did not extend beyond what servedthe public good. The motives of an accused, however, are irrelevant.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 163(1), (2) (obscene matter, crime comic,disgusting object, indecent show, articles or materials showing methods of causing abor-tion or miscarriage, article or material for cure of venereal disease or generative organsor for restoring sexual virility).

FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 163(3) [re-en. 1993, c. 46, s. 1(1)], (4), (5);see also R. v. American News Co. (1957), 25 C.R. 374 (Ont. C.A.) (public good beingthat necessary or advantageous to science, literature, art, religion, morality, administra-tion of justice or other objects of general interest); R. v. Delorme (1973), 21 C.R.N.S.305 (Que. C.A.) (onus of proof on Crown discharged by producing publication withoutexpert evidence); R. v. Sutherland (1974), 18 C.C.C. (2d) 117 (Ont. G.S.P.) (Crown notobliged to call evidence as to test of community standards); R. v. MacMillan Co. (1977),13 O.R. (2d) 630 (Ont. Co. Ct.) (children's educational book on sex serving publicgood).

END OF DOCUMENT



CED Criminal Law — Defences III.6.(a).(i)Canadian Encyclopedic Digest


6 — Self-Defence and Defence of Others(a) — Self-Defence Against Unprovoked Assault

(i) — Death or Grievous Bodily Harm not Intended


To check the currency of the title, please refer to the subject title page.III.6.(a).(i)

See Canadian Abridgment: CRM.V.21.b Criminal law — Defences — Self defence — Inten-tion to kill or cause grievous bodily harm

§143 Everyone who is unlawfully assaulted without having provoked the assault is justified inrepelling force by force if the force used is not intended to cause death or grievous bodilyharm and is no more than is necessary to enable one to defend oneself.[FN1] For the defenceto succeed, the jury must be left with a reasonable doubt on the existence of all elements ofthe defence: viz., (i) the accused was unlawfully assaulted; (ii) he or she did not provoke theassault; (iii) the force that the accused used was not intended to cause death or grievous bodilyharm; and (iv) the force the accused used was no more than necessary to enable him or her todefend himself or herself. Conversely, the defence fails if the Crown proves beyond a reason-able doubt that any one of the four elements is not established.[FN2]

§144 A person defending himself or herself against an unprovoked assault who did not intendto cause death or grievous bodily harm, and who accidentally causes death or grievous bodilyharm, is entitled to invoke the law of self-defence pertaining to persons not intending to causedeath or grievous bodily harm. If the force used was no more than was necessary for the pur-pose of self-defence, it is justifiable and hence lawful. If a person doing a lawful act accident-ally kills or causes grievous bodily harm, then — in the absence of criminal negligence — thedeath or grievous bodily harm is caused by misadventure or accident and no criminal liabilityis incurred.[FN3]

§145 Where there is an issue as to whether or not an accused intended to cause death or griev-ous bodily harm, the trial judge, notwithstanding that death or grievous bodily harm has resul-ted, should instruct the jury with respect to the law concerning persons not intending to causedeath or grievous bodily harm, and then proceed to the law concerning persons claiming self-defence against unprovoked assault who intended to cause death or grievous bodilyharm.[FN4]

§146 An accused's subjective belief that he or she is in imminent danger from an attack may

CED Criminal Law — Defences III.6.(a).(i) Page 1


be reasonable, although he or she may be mistaken in such belief.[FN5] In any case, the forceused must be no more than is necessary to defend oneself.[FN6]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 34(1); R. v. Reilly, [1984] 2 S.C.R. 396(S.C.C.); R. c. Brisson, [1982] 2 S.C.R. 227 (S.C.C.) (section may be invoked only if nointention to cause death or grievous bodily harm); R. v. Baxter (1975), 33 C.R.N.S. 22(Ont. C.A.) (person defending oneself under section must use only proportional force,but not expected to weigh to nicety exact amount of force); R. v. Bogue (1976), 13 O.R.(2d) 272 (Ont. C.A.); R. v. Squire (1975), 31 C.R.N.S. 314 (Ont. C.A.); reversed on oth-er grounds (1976), [1977] 2 S.C.R. 13 (S.C.C.) (where accused willingly engaging infight, accused cannot rely on section; accused not victim of unprovoked assault); R. v.Stanley, [1977] 4 W.W.R. 578 (B.C. C.A.) (section available where forced consent tofight); R. v. Antley (1963), 42 C.R. 384 (Ont. C.A.) (person having reasonable grounds toapprehend danger from attacker justified in striking first blow); R. v. Larlham, [1971] 4W.W.R. 304 (B.C. C.A.) (accused not guilty of assault on police where illegallysearched); Bottrell v. R. (1981), 22 C.R. (3d) 371 (B.C. C.A.) (grievous bodily harmmeaning serious hurt or pain); R. v. Horsefall (1990), 61 C.C.C. (3d) 245 (B.C. C.A.);leave to appeal refused (1991), 61 C.C.C. (3d) vi (S.C.C.) ("bodily harm" considered incontext of comfort); R. v. Bayard, [1989] 1 S.C.R. 425 (S.C.C.) (section not applicablewhere mental element for murder present); see also Criminal Code, R.S.C. 1985, c. C-46, s. 2 "bodily harm" [en. 1994, c. 44, s. 2(2)].

FN2. R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.); R. v. Paice (2005), 195 C.C.C.(3d) 97 (S.C.C.) (s. 34(1) is expansive and allows a person to repel force).

FN3. R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (s. 34(1), (2) of Criminal Code notmutually exclusive); R. v. Marky, [1976] 6 W.W.R. 390 (Alta. C.A.) (accused strikingfemale with glass jug causing severe cut; act may not have been intended to cause injuryand possibly otherwise justifiable; accused's conviction quashed); R. v. Kandola (1993),80 C.C.C. (3d) 481 (B.C. C.A.) (even if death resulting, defence under s. 34(1) may ap-ply).

FN4. R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.); see also Martin v. R. (1985), 47C.R. (3d) 342 (Que. C.A.) (accused raising self-defence to murder charge but using moreforce than necessary; accused possibly guilty of manslaughter if not having requisite in-tent).

FN5. R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (s. 34(1) importing purely object-ive test; defence of mistake of fact applicable); R. v. Bolyantu (1975), 29 C.C.C. (2d)174 (Ont. C.A.) (accused may believe in non-existent attack); R. c. Pétel (1993), 78C.C.C. (3d) 543 (Que. C.A.); affirmed (1994), 87 C.C.C. (3d) 97 (S.C.C.) (no require-ment of imminent danger in s. 34(2) defence; prior threats relevant; circumstances andexperience of accused relevant); R. v. Alkerton, [1993] 1 S.C.R. 468 (S.C.C.) (victimraising clenched fists several feet away).

FN6. R. v. Bogue (1976), 13 O.R. (2d) 272 (Ont. C.A.) (real difference between test un-



der s. 34(1) and (2); s. 34(2) not requiring use of proportional force); R. v. Setrum(1976), 32 C.C.C. (2d) 109 (Sask. C.A.) (accused not intending to cause death or griev-ous bodily harm and using no more force than necessary; victim dying; accused havingdefence under s. 34(1)); R. v. Nelson (1953), 16 C.R. 407 (B.C. C.A.) (physical differ-ences between parties relevant in determining whether force used being necessary); R. v.Antley (1963), 42 C.R. 384 (Ont. C.A.); R. v. Sulland (1982), 41 B.C.L.R. 167 (B.C.C.A.) (person may arm for self-protection and carry weapon for self-defence under ap-propriate circumstances); see also R. v. Richter (1970), 73 W.W.R. 140 (Alta. Dist. Ct.);Northwest v. R., [1980] 5 W.W.R. 48 (Alta. C.A.) (intoxication may be relevant to intentand capacity to form intent).

END OF DOCUMENT



CED Criminal Law — Defences III.6.(a).(ii)Canadian Encyclopedic Digest


6 — Self-Defence and Defence of Others(a) — Self-Defence Against Unprovoked Assault

(ii) — Death or Grievous Bodily Harm Intended and Caused


To check the currency of the title, please refer to the subject title page.III.6.(a).(ii)

See Canadian Abridgment: CRM.V.21.b Criminal law — Defences — Self defence — Inten-tion to kill or cause grievous bodily harm

§147 Everyone who is unlawfully assaulted and who causes death or grievous bodily harm inrepelling the assault is justified if he or she causes it under reasonable apprehension of deathor grievous bodily harm from the violence with which the assault was originally made or withwhich the assailant pursues his or her purposes, and the person assaulted believes on reason-able and probable grounds that he or she cannot otherwise preserve himself or herself fromdeath or grievous bodily harm.[FN1]

§148 The ultimate question is whether the accused caused death or grievous bodily harm un-der a reasonable apprehension of death or grievous bodily harm, and believed on reasonableand probable grounds that he or she could not otherwise preserve himself or herself fromdeath or grievous bodily harm.[FN2]

§149 The reasonable apprehension of death or grievous bodily harm must satisfy an objectivestandard. A person can rely on self-defence where he or she has made an honest but reason-able mistake as to whether he or she is being attacked. The danger reacted to need not be "im-minent". Imminence is only one factor to be weighed in determining whether the accused hada reasonable apprehension of danger.[FN3]

§150 In the context of a battered wife relationship there is no requirement for imminentdanger. It may be reasonable to apprehend death or grievous bodily harm even where a phys-ical assault is not in progress.[FN4] Once the accused raises self-defence in a case involvingbattered woman syndrome, the trial judge must instruct the jury on the principles governingthat defence and, in particular, how the expert evidence may be of use in understanding: whyan abused woman might remain in an abusive relationship; the nature and extent of the viol-ence that may exist in a battering relationship; the accused's ability to perceive danger fromher abuser; and whether the accused believed on reasonable grounds that she could not other-wise preserve herself from death or grievous bodily harm.[FN5]

CED Criminal Law — Defences III.6.(a).(ii) Page 1


§151 In deciding whether the accused's belief was based upon reasonable grounds, the trier offact, of necessity, draws comparisons with what a reasonable person in the accused's situationmight believe with respect to the extent and the imminence of the danger with which he or shewas threatened, and the force necessary to defend against the apprehended danger.[FN6]

§152 There is no requirement that the force used be proportionate. Whether the amount offorce used against an accused was disproportionate to the nature of the force used by the ac-cused is properly considered by the trier of fact as a circumstance, or an item of evidence, indeciding whether an accused had a reasonable apprehension of death or grievous bodily harm,and whether the accused had reasonable and probable grounds to believe that he or she couldnot otherwise preserve himself or herself from death or grievous bodily harm.[FN7]

§153 An accused's belief that he or she was in imminent danger from an attack may be reason-able even though the belief may be mistaken.[FN8]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 34(2); R. v. Setrum (1976), 32 C.C.C. (2d)109 (Sask. C.A.) (where no evidence accused under reasonable apprehension of death orgrievous bodily harm, section not to be left to jury); Martin v. R. (1985), 47 C.R. (3d)342 (Que. C.A.) (provisions of s. 34 must be explained to jury in context of specific in-tent for murder); R. c. Brisson, [1982] 2 S.C.R. 227 (S.C.C.) (subsection justification forintentional causing of death or grievous bodily harm); R. v. Faid, [1983] 1 S.C.R. 265(S.C.C.); R. v. McIntosh (1993), 84 C.C.C. (3d) 473 (Ont. C.A.); affirmed (1995), 95C.C.C. (3d) 481 (S.C.C.) (s. 34(2) not to be read as including words of s. 34(1)); R. v.Cameron (1995), 96 C.C.C. (3d) 346 (Ont. C.A.) (trial judge erring in suggesting to jurythat self-defence under s. 34(2) not available if accused provoking assault that led to useof deadly force); R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.) (no air of reality to as-sertion of reasonable apprehension of death or grievous bodily harm; s. 34(2) not con-templating concept of excessive force); R. v. Pintar (1996), 110 C.C.C. (3d) 402 (Ont.C.A.) (s. 34(2) not requiring that accused intending to cause serious bodily harm); R. v.Kindt (1998), 15 C.R. (5th) 307 (B.C. C.A.) (s. 34(2) applying even if accused not in-tending to cause death or grievous bodily harm); R. v. Sheri (2004), 186 O.A.C. 51 (Ont.C.A.); R. v. Gill (2004), 195 B.C.A.C. 296 (B.C. C.A.); R. v. Nieto (2007), 2007CarswellMan 260 (Man. C.A.); leave to appeal refused (2008), 2008 CarswellMan 91(S.C.C.) (unlawful assault not prerequisite for accused to rely on self-defence; air ofreality to defence; appeal allowed on other grounds); see also R. v. Clark, [1983] 4W.W.R. 313 (Alta. C.A.) (defence not available where accused using unreasonable andexcessive force intended to cause grievous bodily harm; bodily harm under s. 212(a) ofCriminal Code, R.S.C. 1970, c. C-34, and grievous bodily harm not to be equated); R. v.Preston (1953), 17 C.R. 20 (B.C. C.A.) (state of mind of accused to be considered re-garding excessive force); R. v. Desveaux (1986), 51 C.R. (3d) 173 (Ont. C.A.) (new trialordered where trial judge failing to point out distinction between s. 34(1) and s. 34(2)defence; accused not required to measure carefully force under s. 34(2)); R. v. Kerr(2004), 2004 CarswellAlta 811 (S.C.C.) (accused inmate carrying prison-made knife inanticipation of imminent attack by prison gang members; accused attacked; assailant dy-ing of stab wound; accused acquitted of second degree murder and possession of weaponfor purpose dangerous to public peace).



FN2. R. c. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.) (constituent elements for section34(2) defence; must be no alternative course of action for accused); R. v. Baxter (1975),33 C.R.N.S. 22 (Ont. C.A.); R. v. Bolyantu (1975), 29 C.C.C. (2d) 174 (Ont. C.A.); R. v.Ebsary (1984), 15 C.C.C. (3d) 38 (N.S. C.A.) (new trial ordered where trial judge ignor-ing principal defence under s. 34(2)); R. v. Nelson (1992), 13 C.R. (4th) 359 (Ont. C.A.)(provocation not relevant to defence under s. 34(2)); R. v. Plain (1997), 12 C.R. (5th)373 (Ont. Gen. Div.) (evidence of conditions in segregation and degree of safety that se-gregation providing relevant in determining reasonableness of accused's belief that pre-emptive attack necessary to preserve his life); R. v. Côté (2008), 2008 CarswellMan 303(Man. C.A.); leave to appeal refused (2008), 2008 CarswellMan 596 (S.C.C.) (accusedshooting and killing store clerk; accused continuing to shoot after out of reach of storeclerk's bat; claim for self defence must possess air of reality; objective element in air ofreality test should not cater to criminal mind; subjective belief must be justifiable andreasonable; accused's belief that only alternative being to shoot his way out not reason-able).

FN3. R. c. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.) (imminence not formal require-ment); R. v. Bogue (1976), 13 O.R. (2d) 272 (Ont. C.A.); R. v. Baxter (1975), 33C.R.N.S. 22 (Ont. C.A.); R. v. C., [1966] 1 C.C.C. 380 (Sask. Q.B.) (essential issue be-ing accused's state of mind at relevant time); R. c. Pétel (1993), 78 C.C.C. (3d) 543(Que. C.A.); affirmed (1994), 87 C.C.C. (3d) 97 (S.C.C.) (no requirement of danger im-minent); R. v. McConnell (1996), 48 C.R. (4th) 199 (S.C.C.) ("prison environment syn-drome" analogous to "battered wife syndrome"; imminence not necessary when two ac-cused attacking and killing fellow prison inmate because of victim's threats to accused);but see R. c. Charlebois (2000), 148 C.C.C. (3d) 449 (S.C.C.) (relaxed requirement ofimmediacy particular to battered women); R. v. Plain (1997), 12 C.R. (5th) 373 (Ont.Gen. Div.) (drug debt to victim and racial tensions making accused's apprehension ofprison violence reasonable; accused making pre-emptive attack; Crown not disprovingself-defence beyond reasonable doubt).

FN4. R. v. Lavallee, [1990] 1 S.C.R. 852 (S.C.C.) (in "battering" relationship reasonableapprehension of death may be given meaning by expert evidence); R. v. Eyapaise (1993),20 C.R. (4th) 246 (Alta. Q.B.) (battered woman defence may be available even where re-lationship not of lengthy duration); R. c. Pétel (1993), 78 C.C.C. (3d) 543 (Que. C.A.);affirmed (1994), 87 C.C.C. (3d) 97 (S.C.C.) (prior threats relevant; circumstances andexperience of accused relevant); see also R. v. Siu (1992), 12 C.R. (4th) 356 (B.C. C.A.)(violent incident one hour before event relevant); R. v. M. (M.A.) (1998), 121 C.C.C.(3d) 456 (S.C.C.).

FN5. R. v. M. (M.A.) (1998), 121 C.C.C. (3d) 456 (S.C.C.); R. v. Young (2008), 2008CarswellBC 2085 (B.C. C.A.) (accused suffering from battered woman syndrome; trialjudge's charge effectively removing battered woman defence from jury's consideration;new trial ordered).

FN6. R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.); R. v. Bogue (1976), 13 O.R. (2d)272 (Ont. C.A.); R. v. Reilly, [1984] 2 S.C.R. 396 (S.C.C.) (intoxication of accused can



induce honest mistake but cannot induce mistake based on reasonable and probablegrounds; reasonable person being one in full possession of faculties); R. v. Pintar (1996),110 C.C.C. (3d) 402 (Ont. C.A.); R. v. Kagan (2004), 185 C.C.C. (3d) 417 (N.S. C.A.)(at trial accused adducing expert evidence indicating accused displaying some symptomsof syndrome characterized by misinterpretation of social cues; syndrome could havecaused accused to assess facts prior to assault on victim in manner not ordinarily per-ceived by non-affected individuals; failure to charge jury regarding expert evidence re-quiring new trial); see also R. v. Vlcko (1972), 10 C.C.C. (2d) 139 (Ont. C.A.).

FN7. R. v. Bogue (1976), 13 O.R. (2d) 272 (Ont. C.A.) (force need not be proportionateunder s. 34(2), nor is it expected to be weighed to nicety); R. v. Hebert (1996), 107C.C.C. (3d) 42 (S.C.C.) (accused not expected to weigh with nicety exact measure of re-sponsive force when facing upraised knife or club); R. v. Raphael (2009), 2009CarswellSask 78 (Sask. C.A.) (amount of force playing different role under s. 34(2) thanunder s. 34(1)); see also R. v. Marky, [1976] 6 W.W.R. 390 (Alta. C.A.); R. v. Siu(1992), 12 C.R. (4th) 356 (B.C. C.A.) (force in excess of what honestly believing neces-sary will preclude s. 34(2) defence).

FN8. R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (defence of mistake of fact applic-able to s. 34(2)); R. v. Fisher (1986), [1987] Crim. L.R. 334 (Eng. C.A.); see also R. v.Nelson (1992), 13 C.R. (4th) 359 (Ont. C.A.) (defence available where honest but mis-taken belief).

END OF DOCUMENT





6 — Self-Defence and Defence of Others(b) — Self-Defence in Case of Aggression



See Canadian Abridgment: CRM.V.21.d Criminal law — Defences — Self defence — Reas-onable apprehension of death or grievous bodily harm

§154 Everyone who has, without justification, assaulted another but did not commence the as-sault with intent to cause death or grievous bodily harm, or has without justification provokedan assault upon himself or herself by another, may justify the use of force subsequent to theassault if he or she uses the force under reasonable apprehension of death or grievous bodilyharm from the violence of the person whom he or she has assaulted or provoked and in the be-lief, on reasonable or probable grounds, that it is necessary in order to preserve himself or her-self from death or grievous bodily harm. To justify such use of force a person must also nothave, at any time before the necessity of preserving himself or herself from death or grievousbodily harm arose, endeavoured to cause death or grievous bodily harm and must have de-clined further conflict or retreated from it as far as it was feasible to do so before the necessityof preserving himself or herself from death or grievous bodily harm arose.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 35; R. v. Bolyantu (1975), 29 C.C.C. (2d)174 (Ont. C.A.) (where uncertainty as to whether accused commencing or provoking as-sault, or acting in self-defence, s. 35 should also be put with s. 34); R. v. Cameron(1995), 96 C.C.C. (3d) 346 (Ont. C.A.) (trial judge erring by suggesting to jury that self-defence under s. 34(2) not available if accused provoking assault that led to use ofdeadly force); R. v. McIntosh (1995), 95 C.C.C. (3d) 481 (S.C.C.); see also R. v. Merson(1983), 4 C.C.C. (3d) 251 (B.C. C.A.) (further conflict referring to conflict generated byinitial assault or provocation by accused); R. v. Doiron (1972), 18 C.R.N.S. 127 (N.B.C.A.) (intoxicated accused believing with reasonable grounds that victim intending andable to cause him grievous bodily harm; accused justified in shooting victim after twowarning shots); R. v. Squire (1975), 31 C.R.N.S. 314 (Ont. C.A.); reversed on othergrounds (1976), [1977] 2 S.C.R. 13 (S.C.C.) (person willingly engaging in fight withoutany necessity for defending himself falling within s. 35); R. v. Bayard, [1989] 1 S.C.R.425 (S.C.C.) (proper instructions on conjunctive provisions of s. 35 required); R. v. Siu(1992), 12 C.R. (4th) 356 (B.C. C.A.) (jury instruction for s. 35 discussed); R. v. Cham-berland (1988), 65 Alta. L.R. (2d) 175 (Alta. C.A.).



END OF DOCUMENT





6 — Self-Defence and Defence of Others(c) — Provocation Defined



See Canadian Abridgment: CRM.V.21.e Criminal law — Defences — Self defence — Effectof provocation

§155 In matters concerning self-defence against unprovoked assault or self-defence in case ofaggression, provocation includes provocation by blows, words or gestures.[FN1]

§156 What may constitute provocation is not confined to words, blows or gestures.[FN2]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 36; R. v. Johnson (1956), 117 C.C.C. 237(B.C. C.A.) (accused arming himself with bottle; doubt as to whether this being provoca-tion or precaution for self-defence); see also Evans v. Bradburn (1915), 9 W.W.R. 281(Alta. C.A.) (provocation by being called disgraceful name not justification for assault);Wentzell v. Winacht (1907), 41 N.S.R. 406 (N.S. C.A.).

FN2. R. v. Nelson (1992), 13 C.R. (4th) 359 (Ont. C.A.) (turning up of stereo may con-stitute provocation); R. v. Stubbs (1988), 28 O.A.C. 14 (Ont. C.A.) (provocation not rel-evant to defence of self-defence under s. 34(2)); R. v. Roberts (2005), 2005 CarswellAlta80 (S.C.C.) (must be air of reality to objective components of test for defence of pro-vocation; no wrongful act or insult sufficient to result in reasonable person losing con-trol).

END OF DOCUMENT





6 — Self-Defence and Defence of Others(d) — Prevention of Assault and Defence of Others



See Canadian Abridgment: CRM.V.21 Criminal law — Defences — Self defence;CRM.V.13.a.ii.C Criminal law — Defences — Lawful authority — To administer or enforcelaw — Justification for use of force — Preventing commission of offence

§157 Everyone is justified in using force to defend oneself or anyone under one's protectionfrom assault, if one uses no more force than is necessary to prevent the assault or the repeti-tion of it. This does not justify any wilful infliction of any hurt or mischief that is excessive,having regard to the nature of the assault that the force used was intended to prevent.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 37; R. v. Lowther (1957), 26 C.R. 150(Que. Q.B.) (section being extension of s. 34); R. v. Courtereille (2001), 40 C.R. (5th)338 (B.C. C.A.); leave to appeal refused (2001), 2001 CarswellBC 894 (S.C.C.) (s. 37requires proportionality; over 40 stab wounds not proportional); R. v. Finney (1999), 126O.A.C. 115 (Ont. C.A.) (s. 37 available to accused who provokes initial assault); R. v.Basarabas (1981), 62 C.C.C. (2d) 13 (B.C. C.A.); reversed on other grounds [1982] 2S.C.R. 730 (S.C.C.) (where death caused, issue of self-defence not to be determined bys. 37; section not including intentional killing); R. v. McIntosh (1993), 84 C.C.C. (3d)473 (Ont. C.A.); affirmed (1995), 95 C.C.C. (3d) 481 (S.C.C.) (leaving s. 37 with juryunnecessary if accused approaching deceased with knife); R. v. Webers (1994), 95C.C.C. (3d) 334 (Ont. Gen. Div.) ("under his protection" can mean anyone requiring pro-tection which accused may be able to provide and not limited to formal guardianship re-lationship; family friend serving as protector entitled to use force to protect patient fromalleged assault); but see R. v. Figueira (1981), 63 C.C.C. (2d) 409 (Ont. C.A.); R. v.Shannon (1981), 59 C.C.C. (2d) 229 (B.C. C.A.); R. v. Thomas (2002), 170 C.C.C. (3d)81 (B.C. C.A.) (if not reasonably for protection then s. 37 not available).

END OF DOCUMENT





6 — Self-Defence and Defence of Others(e) — Prevention of Immediate and Serious Injury to Any Person



See Canadian Abridgment: CRM.V.21 Criminal law — Defences — Self defence;CRM.V.13.a.ii.C Criminal law — Defences — Lawful authority — To administer or enforcelaw — Justification for use of force — Preventing commission of offence

§158 A person in self-defence or in defence of another may use as much force as is reasonablynecessary to prevent the commission of an offence for which, if it were committed, the of-fender might be arrested without warrant, and that would be likely to cause immediate andserious injury to any person or to any person's property.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 27(a); R. v. Gee, [1982] 2 S.C.R. 286(S.C.C.) (section not providing for partial defence where accused using excessive forceand maintaining act done to prevent harm to other person); R. v. Figueira (1981), 63C.C.C. (2d) 409 (Ont. C.A.) (where overlap of section with other defences, counselshould request this defence be put to jury); R. v. Baxter (1975), 33 C.R.N.S. 22 (Ont.C.A.) (section overlapping with those of defence of person or property); R. v. Scopelliti(1981), 34 O.R. (2d) 524 (Ont. C.A.) (use of force in particular circumstances may bejustified under more than one section); see also Criminal Code, R.S.C. 1985, c. C-46, s.27(b) (reasonable belief in anything being done that would amount to offence mentionedin s. 27(a) also warranting use of force).

END OF DOCUMENT





6 — Self-Defence and Defence of Others(f) — Retreat



See Canadian Abridgment: CRM.V.21.g Criminal law — Defences — Self defence — Miscel-laneous

§159 An accused is not prevented from relying on self-defence where he or she has failed toretreat from the conflict. A failure to retreat is only an element or factor to be taken into ac-count in deciding whether it was necessary to use force, and whether the force used was reas-onable.[FN1]

§160 An accused claiming justification for the use of force causing death or grievous bodilyharm, after commencing or provoking an assault that was not intended to cause death or griev-ous bodily harm, must, at a certain point in the ensuing conflict, as far as it was feasible to doso, have quit or retreated from the conflict to justify such force.[FN2]

FN1. R. v. Proulx (1998), 127 C.C.C. (3d) 511 (B.C. C.A.) (no obligation to retreat); R.v. Rode (2004), 187 C.C.C. (3d) 1 (B.C. C.A.); Northwest v. R., [1980] 5 W.W.R. 48(Alta. C.A.) (trial judge erring in concentrating on retreat being open to accused); R. v.Deegan, [1979] 6 W.W.R. 97 (Alta. C.A.) (even if person not in home, retreat not imper-ative for defence of self-defence to be relied on); R. v. Ward (1978), 4 C.R. (3d) 190(Ont. C.A.) (not correct in law that self-defence justified only where person unable to re-treat); but see R. v. Lelievre (1962), 37 C.R. 83 (Ont. C.A.) (to justify use of gun, evid-ence must show use necessary to preserve life, and before use accused retreating as faras possible); R. v. Westhaver (1992), 17 C.R. (4th) 401 (N.S. C.A.).

FN2. Criminal Code, R.S.C. 1985, c. C-46, s. 35(c); see also R. v. Merson (1983), 4C.C.C. (3d) 251 (B.C. C.A.) (accused must satisfy all requirements of s. 35 to justifyconduct).

END OF DOCUMENT





6 — Self-Defence and Defence of Others(g) — Burden of Proof



See Canadian Abridgment: CRM.V.21.g Criminal law — Defences — Self defence — Miscel-laneous

§161 When the defence of self-defence is raised it does not affect the burden upon the Crownof proving its case beyond a reasonable doubt. All the accused has to do to establish this de-fence is to introduce evidence raising at least a reasonable doubt as to guilt. The burden ofnegativing the defence rests on the prosecution. Where, on the whole of the evidence, the trierof fact is convinced of the innocence of an accused or is left in doubt as to whether he or sheacted in self-defence, the accused should be acquitted.[FN1]

FN1. R. v. C., [1966] 1 C.C.C. 380 (Sask. Q.B.); R. v. Lieberman (1970), 11 C.R.N.S.168 (Ont. C.A.) (on issue of self-defence, no burden on accused); R. v. Hebert (1996),107 C.C.C. (3d) 42 (S.C.C.); see also R. c. Brisson, [1982] 2 S.C.R. 227 (S.C.C.) (judgenot required to put self-defence to jury where no evidence to give air of reality to de-fence); R. v. Gee, [1982] 2 S.C.R. 286 (S.C.C.) (must be foundation of fact to give air ofreality to defence); R. v. Latour, [1951] S.C.R. 19 (S.C.C.) (defence need only satisfyminor burden to raise defence of self-defence); R. v. Mulder (1978), 40 C.C.C. (2d) 1(Ont. C.A.); R. v. Deegan, [1979] 6 W.W.R. 97 (Alta. C.A.); R. v. Ebsary (1984), 15C.C.C. (3d) 38 (N.S. C.A.); R. v. Nadeau, [1984] 2 S.C.R. 570 (S.C.C.) (any reasonabledoubt regarding self-defence enuring to accused); R. v. Kong (2006), 2006 CarswellAlta1134 (S.C.C.) (for judge to put defence of self-defence before jury, defence must possess"air of reality"; in considering whether "air of reality" test met, must be evidence uponwhich jury could reasonably draw inferences necessary to acquit).

END OF DOCUMENT



CED Criminal Law — Defences III.6.(h)Canadian Encyclopedic Digest


6 — Self-Defence and Defence of Others(h) — Previous Acts of Violence by Victim


To check the currency of the title, please refer to the subject title page.III.6.(h)

See Canadian Abridgment: CRM.V.21.d Criminal law — Defences — Self defence — Reas-onable apprehension of death or grievous bodily harm

§162 Where self-defence is raised, evidence not only of previous assaults by the deceased onthe accused but also of previous acts of violence by the deceased, which were known to theaccused, towards third persons[FN1] is admissible to show the accused's reasonable apprehen-sion of violence from the deceased. Evidence of previous acts of violence by the deceasedwhich were not known to the accused is also admissible to show the probability of the de-ceased having been the aggressor and to support an accused's evidence that he or she was at-tacked by the deceased. However, evidence regarding acts of violence by the deceased, whichwere not known to the accused, is admissible only when there is some other appreciable evid-ence of the victim's aggression on the occasion in question. An accused who introduces evid-ence of a deceased's disposition for violence may put his or her own disposition for violencein issue.[FN2]

§163 Evidence of the deceased's prior acts of violence not known to the accused must havesufficient probative value for the purpose tendered to be admissible.[FN3]

FN1. R. v. Varga (2001), 159 C.C.C. (3d) 502 (Ont. C.A.); leave to appeal refused(2002), 2002 CarswellOnt 4504 (S.C.C.); R. v. Speid (1985), 46 C.R. (3d) 22 (Ont.C.A.); R. v. Ryan (1989), 49 C.C.C. (3d) 490 (Nfld. C.A.) (acts of violence by deceasedagainst members of accused's family); R. v. Siu (1992), 12 C.R. (4th) 356 (B.C. C.A.); R.v. Lawrence (1989), 52 C.C.C. (3d) 452 (Ont. C.A.); R. v. Sims (1994), 87 C.C.C. (3d)402 (B.C. C.A.) (evidence of prior violent conduct of deceased relevant even though ac-cused not relying on self-defence).

FN2. R. v. Scopelliti (1981), 34 O.R. (2d) 524 (Ont. C.A.) (previous acts of violence onthird person with significant probative value on issue of disposition for violence admiss-ible where disposition relevant); see also R. v. Conway (1985), 17 C.C.C. (3d) 481 (Ont.C.A.) (accused's prior acts of violence relevant as to who was aggressor); R. v. Maurice(1986), 1986 CarswellAlta 782 (Alta. C.A.) (deceased's record may put accused's charac-



ter in issue); R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.); leave to appeal refused(1986), 26 C.C.C. (3d) 207 (note) (S.C.C.) (psychiatric evidence of deceased's sado-masochism excluded); R. v. Dubois (1976), 30 C.C.C. (2d) 412 (Ont. C.A.); R. v. Titus,[1983] 1 S.C.R. 259 (S.C.C.) (evidence of outstanding charge against witness admiss-ible); R. v. Kendall (1987), 57 C.R. (3d) 249 (Ont. C.A.); R. v. Soares (1987), 34 C.C.C.(3d) 403 (Ont. C.A.); R. v. Delong (1989), 69 C.R. (3d) 147 (Ont. C.A.).

FN3. R. v. Yaeck (1991), 68 C.C.C. (3d) 545 (Ont. C.A.); leave to appeal refused (1992),71 C.C.C. (3d) vii (S.C.C.) (prior acts of violence by deceased excluded); R. v.Melaragni (1992), 76 C.C.C. (3d) 78 (Ont. Gen. Div.) (speculation and conjecture as todeceased's prior conduct not admissible).

END OF DOCUMENT



CED Criminal Law — Defences III.6.(i)Canadian Encyclopedic Digest


6 — Self-Defence and Defence of Others(i) — Excessive Force


To check the currency of the title, please refer to the subject title page.III.6.(i)

See Canadian Abridgment: CRM.V.21 Criminal law — Defences — Self defence;CRM.V.13.a.iii Criminal law — Defences — Lawful authority — To administer or enforcelaw — Excessive force

§164 Everyone who is authorized to use force is criminally responsible for any excess thereofaccording to the nature and quality of the act that constitutes the excess.[FN1]

FN1. Criminal Code, R.S.C. 1985, c. C-46, s. 26; R. v. Faid, [1983] 1 S.C.R. 265(S.C.C.) (no qualified defence of excessive force in self-defence); R. v. Reilly, [1984] 2S.C.R. 396 (S.C.C.); R. c. Brisson, [1982] 2 S.C.R. 227 (S.C.C.); R. v. Clark, [1983] 4W.W.R. 313 (Alta. C.A.) (accused intending to cause grievous bodily harm may beguilty only of manslaughter); R. v. Matson (1970), 1 C.C.C. (2d) 374 (B.C. C.A.) (judgeerring in reasoning backwards from extent of injuries); R. v. Marky, [1976] 6 W.W.R.390 (Alta. C.A.) (result not determining whether more force used than necessary); R. v.Nelson (1953), 16 C.R. 407 (B.C. C.A.) (slap on face not justifying blow fracturing jawin several places); Martin v. R. (1985), 47 C.R. (3d) 342 (Que. C.A.); R. v. Kusyj, [1984]N.W.T.R. 152 (N.W.T. S.C.) (placing hand on shoulder not warranting knockout punch);R. v. Doucet (1987), 84 N.B.R. (2d) 159 (N.B. Q.B.) (pointing shotgun at unarmed com-plainant excessive); R. v. Hebert (1996), 107 C.C.C. (3d) 42 (S.C.C.) (ss. 25 and 26 to beread together; s. 26 inapplicable unless accused being person whom s. 25 authorizing touse force); R. v. McGraw (2004), 2004 CarswellOnt 4476 (Ont. S.C.J.) (trial judge erringin assessing reasonableness of response on basis of injury suffered); see also R. v. Mac-Donald (1997), 117 C.C.C. (3d) 376 (B.C. C.A.) (excessive force ruling out self-defencebut possibly giving air of reality to defence of provocation).

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CED Criminal Law — Defences III.6.(i) Page 1


CED Criminal Law — Defences IV.1.(a)Canadian Encyclopedic Digest

Criminal Law — DefencesIV — Excuses1 — Accident

(a) — Accident Defined


To check the currency of the title, please refer to the subject title page.IV.1.(a)

See Canadian Abridgment: CRM.V.1 Criminal law — Defences — Accident

§165 "Accident" is an event happening by chance, or unexpectedly taking place, not accordingto the usual course of things. It is an unintended and unexpected occurrence, which produceshurt or loss.[FN1]

FN1. R. v. Kolbe, [1974] 4 W.W.R. 579 (Alta. C.A.); Fenton v. J. Thorley & Co., [1903]A.C. 443 (U.K. H.L.); R. v. Morris, [1972] 1 W.L.R. 228 (Eng. C.A.).

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CED Criminal Law — Defences IV.1.(a) Page 1


CED Criminal Law — Defences IV.1.(b)Canadian Encyclopedic Digest


(b) — Nature of Defence


To check the currency of the title, please refer to the subject title page.IV.1.(b)


§166 The defence of accident is simply a denial of the mens rea required for the offencecharged.[FN1] Where the offence requires a mens rea consisting merely in knowledge of cer-tain consequences or that a reasonable person would have foreseen certain consequences, acci-dent may only be a defence inasmuch as the accused did not know of the consequences, or areasonable person would not have foreseen the consequences.[FN2]

FN1. R. v. Tennant (1975), 31 C.R.N.S. 1 (Ont. C.A.); R. v. Hughes, [1942] S.C.R. 517(S.C.C.).

FN2. R. v. Tennant (1975), 31 C.R.N.S. 1 (Ont. C.A.).

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CED Criminal Law — Defences IV.1.(b) Page 1


CED Criminal Law — Defences IV.1.(c)Canadian Encyclopedic Digest


(c) — Accident as a Complete Defence


To check the currency of the title, please refer to the subject title page.IV.1.(c)


§167 If the Crown fails to establish the requisite mens rea, in that the act took place by acci-dent, there will be a complete defence to the offence charged and any included offences.[FN1]

FN1. R. v. Billingsley (1946), 4 C.R. 89 (N.B. C.A.) (accused's only defence to charge ofattempted rape being that falling on complainant by accident; no obligation to submit tojury included offences); R. v. Bouvet (2007), 2007 CarswellNat 2120 (Can. Ct. Martial)(no intent to contact established; defence of accident); see also R. v. Arthurs (1972),[1974] S.C.R. 287 (S.C.C.) (accident as defence having more than one meaning in driv-ing offence; either complete absence of negligence or momentary inattention); R. v. Bax-ter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (accident and self-defence considered); R. v.Hansen (1988), 46 C.C.C. (3d) 504 (B.C. C.A.) (accident and vehicle offence); R. v.O'Brien (2003), 174 C.C.C. (3d) 208 (N.B. C.A.) (defence of accident and self-defence).

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CED Criminal Law — Defences IV.1.(c) Page 1


CED Criminal Law — Defences IV.1.(d)Canadian Encyclopedic Digest


(d) — Accident and Homicide


To check the currency of the title, please refer to the subject title page.IV.1.(d)


§168 In homicide cases, accident will provide a complete defence only under certain circum-stances. If there is a reasonable doubt that the killing was an accident and the accused was notengaged in an unlawful act, or criminal negligence, and did not know, nor ought to haveknown, the act was likely to cause death, then he or she has a complete defence of accident tothe charge, whether it be murder or manslaughter.[FN1]

§169 If death results from accident, but the actor was engaged at the time in an unlawful actthat a reasonable person would know would subject another person to risk of at least someharm, the accused will not be guilty of murder but guilty of manslaughter.[FN2]

§170 If death results from accident, but the actor was not engaged in an unlawful act, yet wascriminally negligent in the act, the accused will be guilty of manslaughter.[FN3]

§171 Where the defence of accident is raised, there is an obligation on the trial judge to directthe jury on the relationship of accident to the possible absence of intent.[FN4]

FN1. R. v. Tennant (1975), 31 C.R.N.S. 1 (Ont. C.A.); R. v. Walker (2008), 2008CarswellSask 347 (S.C.C.) (accused found not guilty of murder but guilty of man-slaughter; alcohol consumption playing significant role in shooting accident; intent notproven beyond reasonable doubt); see also R. v. Ettinger (1986), 171 A.P.R. 361 (N.S.C.A.) (new trial ordered where defence of accident not defined and fully placed beforejury); R. v. MacNeil (1958), 28 C.R. 48 (N.S. C.A.) (accused's explanation of accidentalshooting not left with jury; new trial ordered); Charbonneau v. R., [1977] 2 S.C.R. 805(S.C.C.) (claim of accident not made out; circumstances indicative of criminal negli-gence); R. v. Gunning (2005), 196 C.C.C. (3d) 123 (S.C.C.) (accused charged withsecond degree murder in respect of fatal shooting of victim who entered accused's homeuninvited during party; accused denying intent to kill victim, rather testifying that he hadtaken out and loaded gun to intimidate or scare victim into leaving and gun then dischar-ging accidentally; trial judge erring in failing to instruct jury regarding defence of house

CED Criminal Law — Defences IV.1.(d) Page 1


or property; while intentional shooting could not be justified on this basis, defence ad-vanced in respect of use of firearm prior to and up to alleged accidental shooting); R. v.Valliere (2004), 2004 CarswellBC 3194 (B.C. S.C.) (Crown failing to prove beyondreasonable doubt that death of victim occuring through manslaughter as charged, as op-posed to combination of accident and self-defence; accused acquitted).

FN2. R. v. Tennant (1975), 31 C.R.N.S. 1 (Ont. C.A.).

FN3. R. v. Tennant (1975), 31 C.R.N.S. 1 (Ont. C.A.); see also R. v. Tanner (1961), 3Cr. L.Q. 523 (Ont. Mag. Ct.) (two accused shooting deceased in hunting accident);Charbonneau v. R., [1977] 2 S.C.R. 805 (S.C.C.).

FN4. R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.) (non-culpable examples ofaccident improper); R. v. Nelson (1992), 13 C.R. (4th) 359 (Ont. C.A.) (should be reviewof evidence relevant to accident); R. v. Black (1990), 55 C.C.C. (3d) 421 (N.S. C.A.)(accident distinct from self-defence); R. v. Soares (1987), 34 C.C.C. (3d) 403 (Ont.C.A.) (jury charge considered); R. v. Hanna (1990), 57 C.C.C. (3d) 392 (B.C. C.A.)(improper for Crown to lead defence of accident then rebut); R. v. Sutherland (1993), 84C.C.C. (3d) 484 (Sask. C.A.) (judge erring by not defining accident and relating it to de-fence of lack of intent); R. v. Mathisen (2008), 2008 CarswellOnt 6489 (Ont. C.A.) (newtrial ordered where trial judge failing to properly instruct jury on defence of accident; tri-al judge instructing jury as to unintended consequences of act but not unintended act).

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CED Criminal Law — Defences IV.2.(a)Canadian Encyclopedic Digest

Criminal Law — DefencesIV — Excuses

2 — Automatism(a) — Automatism Defined


To check the currency of the title, please refer to the subject title page.IV.2.(a)


§172 Automatism is a state of impaired consciousness, rather than one of unconsciousness, inwhich an individual, though capable of action, had no voluntary control over that action. Thelevel of impairment of consciousness, rather than unconsciousness, is the issue in automat-ism.[FN1]

FN1. R. v. Stone (1999), 24 C.R. (5th) 1 (S.C.C.) (defence must present expert testimonyof automatism); R. c. Hotte (2006), 2006 CarswellQue 2155 (S.C.C.) (automatism char-acterized by involuntariness of act committed; diminished conflict tolerance is insuffi-cient; loss of memory doesn't establish accused not conscious during acts or that actionswere involuntary).

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CED Criminal Law — Defences IV.2.(a) Page 1


CED Criminal Law — Defences IV.2.(b)Canadian Encyclopedic Digest


2 — Automatism(b) — Nature of Defence


To check the currency of the title, please refer to the subject title page.IV.2.(b)


§173 Whether lack of consciousness relates to mens rea or actus reus, or both, may be import-ant where the offence charged is one of absolute liability.[FN1] It is now settled that the de-fence of automatism amounts to a denial of the voluntariness component of the actus reus.Voluntariness, not consciousness, is the key legal element of automatistic behaviour.[FN2]

FN1. R. v. Rabey, [1980] 2 S.C.R. 513 at 545 (S.C.C.) (absence of volition always de-fence to crime); but see R. v. Bray (1975), 24 C.C.C. (2d) 366 (Ont. Co. Ct.) (successfuldefence of automatism based on lack of mens rea).

FN2. R. v. Stone (1999), 24 C.R. (5th) 1 at 62 (S.C.C.) (true automatism only includesinvoluntary behaviours).

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CED Criminal Law — Defences IV.2.(b) Page 1


CED Criminal Law — Defences IV.2.(c)Canadian Encyclopedic Digest


2 — Automatism(c) — Burden of Proof


To check the currency of the title, please refer to the subject title page.IV.2.(c)

See Canadian Abridgment: CRM.V.3.c Criminal law — Defences — Automatism — Onus

§174 Where mental disorder automatism is raised as a defence it amounts to an assertion ofinvoluntariness on the part of the accused. Such an assertion when supported by the logicallyprobative opinion of a qualified expert will provide a sufficient evidentiary foundation for put-ting the defence to the jury. Logically probative evidence is relevant testimony that wouldtend to support the defence of mental disorder automatism. In addition to the evidentiary bur-den on an accused raising the automatism defence a legal burden also arises that the defencebe established on a balance of probabilities.[FN1]

FN1. R. c. Fontaine (2004), 18 C.R. (6th) 203 (S.C.C.) (must be "sufficient" evidence todischarge evidentiary burden); R. v. Stone (1999), 24 C.R. (5th) 1 (S.C.C.) (defence to beproven on balance of probabilities).

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CED Criminal Law — Defences IV.2.(c) Page 1


CED Criminal Law — Defences IV.2.(d)Canadian Encyclopedic Digest


2 — Automatism(d) — Questions of Law and Fact


To check the currency of the title, please refer to the subject title page.IV.2.(d)


§175 When determining whether to leave the defence of automatism with the trier of fact, atrial judge must first assess whether a proper foundation for the defence of automatism hasbeen established. If so, the trial judge must next determine whether the condition alleged bythe accused is mental disorder or non-mental disorder automatism.[FN1]

§176 Establishing a proper foundation for automatism is equivalent to satisfying the eviden-tiary burden of the defence.[FN2] Whether the accused has satisfied the evidentiary burden isa question of mixed law and fact for the trial judge.[FN3]

§177 If the accused has not laid a proper foundation for the defence, the presumption of vol-untariness is effective and neither mental disorder or non-mental disorder automatism may beleft with the trier of fact. However, the accused may still claim an independent defence ofmental disorder.[FN4]

FN1. R. v. Stone (1999), 24 C.R. (5th) 1 at 60 (S.C.C.); R. v. Parks, [1992] 2 S.C.R. 871at 897 (S.C.C.); R. c. Fontaine (2004), 18 C.R. (6th) 203 (S.C.C.).

FN2. R. v. Stone (1999), 24 C.R. (5th) 1 at 60, 61 (S.C.C.); R. c. Fontaine (2004), 18C.R. (6th) 203 (S.C.C.) (air of reality test invalid).

FN3. R. v. Stone (1999), 24 C.R. (5th) 1 at 61 (S.C.C.).

FN4. Criminal Code, R.S.C. 1985, c. C-46, s. 16 [re-en. 1991, c. 43, s. 2]; R. v. Stone(1999), 24 C.R. (5th) 1 at 70 (S.C.C.).

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CED Criminal Law — Defences IV.2.(e)Canadian Encyclopedic Digest


2 — Automatism(e) — Automatism and Mental Disorder


To check the currency of the title, please refer to the subject title page.IV.2.(e)

See Canadian Abridgment: CRM.V.3.g Criminal law — Defences — Automatism — Insaneand non-insane

§178 Automatism may be insane automatism or non-insane automatism.[FN1] Automatismwhich is caused by disease of the mind is classified as insane automatism and leads to the spe-cial verdict of not guilty by reason of mental disorder. Automatism not resulting from diseaseof the mind, subject to certain exceptions, leads to a complete acquittal.[FN2] Although thecourts speak of "insane" automatism and "non-insane" automatism, in actuality true automat-ism only includes involuntary behaviour which does not stem from a disease of themind.[FN3] Involuntary behaviour resulting from a disease of the mind is more correctly la-belled a mental disorder rather than insane automatism.[FN4]

§179 The assessment of which form of automatism to leave with the trier of fact depends uponwhether or not the condition alleged by the accused is a mental disorder,[FN5] which is inturn defined as a disease of the mind.[FN6] The question of what mental conditions "diseaseof the mind" includes is a question of law. However, determining whether the condition fromwhich the accused claims to have suffered satisfies the legal test for a disease of the mind in-volves an assessment of the particular evidence in the case; it is thus a mixed question of lawand fact. The question of whether the accused actually suffered from a disease of the mind is aquestion of fact to be determined by the trier of fact.[FN7] It will only be in rare cases thatautomatism is not caused by mental disorder.[FN8]

§180 Where the malfunctioning of the mind is a transient disturbance of consciousness due toan external factor, the defence is automatism. Ordinary stresses and disappointments of life donot constitute an external cause; however, there may be external events, which might be pre-sumed to affect the average normal person, that might lead to a defence of automatism eventhough the accused has suffered no physical injury from these external events.[FN9] However,the internal cause theory cannot be regarded as a universal classificatory scheme for "diseaseof the mind". The continuing danger theory and policy concerns are also important.[FN10]

§181 The internal cause approach is most useful in claims of psychological blow automat-

CED Criminal Law — Defences IV.2.(e) Page 1


ism.[FN11]

§182 The internal cause factor requires the trial judge to compare the accused's automatisticreaction to the psychological blow to the way one would expect a normal person in the samecircumstances to react, in order to determine whether the alleged condition is a disease of themind.[FN12] Evidence of an extremely shocking trigger is required to establish that a normalperson might have reacted to the trigger by entering an automatistic state, as the accusedclaims to have done.[FN13] It is thus a contextual objective test.[FN14]

§183 In considering whether or not the condition is a disease of the mind, the trial judge mayconsider various policy components. Recurring danger to the public, as well as whether thecondition is easily feigned, are legitimate concerns.[FN15]

FN1. Bratty v. Attorney-General for Northern Ireland, [1961] 3 All E.R. 523 (U.K. H.L.)(epilepsy being disease of mind, not automatism); R. v. Stone (1999), 24 C.R. (5th) 1 at58, 70 (S.C.C.) (accused stabbing wife 47 times following verbal abuse; facts possiblyraising insane automatism or provocation; no reason to charge jury on non-insane auto-matism); see also R. v. Fournier (1982), 30 C.R. (3d) 346 (Que. C.A.) (only defence be-ing insanity as, if accused in state of automatism, cause being internal).

FN2. R. v. Oakley (1986), 24 C.C.C. (3d) 351 (Ont. C.A.); R. v. Stone (1999), 24 C.R.(5th) 1 at 58, 59 (S.C.C.); R. v. Vickberg (1998), 16 C.R. (5th) 164 (B.C. S.C.) (heroinaddict stabbing friend while suffering involuntary intoxication from prescription medi-cines; acquittal entered); see also §107.

FN3. R. v. Stone (1999), 24 C.R. (5th) 1 at 59 (S.C.C.) (now "mental disorder" and "non-mental disorder" automatism to accord with revised terminology in Criminal Code, s.16).

FN4. Criminal Code, R.S.C. 1985, c. C-46, s. 16 [re-en. 1991, c. 43, s. 2]; R. v. Stone(1999), 24 C.R. (5th) 1 at 59 (S.C.C.).


FN6. Criminal Code, R.S.C. 1985, c. C-46, s. 2 "mental disorder" [en. 1991, c. 43, s. 1].



FN9. R. v. Rabey, [1980] 2 S.C.R. 513 (S.C.C.) (some emotional shocks without physic-al injury may cause automatism); R. v. Oakley (1986), 24 C.C.C. (3d) 351 (Ont. C.A.)(toxic fumes may create external-source transient state of non-insane automatism); R. v.Bergamin (1996), 111 C.C.C. (3d) 550 (Alta. C.A.) (non-insane automatism not defenceif accused's mental condition resulting from internal cause); R. v. Favretto (1997), 14C.R. (5th) 94 (Ont. Gen. Div.) (irrelevant whether external cause consisting of object-ively serious external act or accused reasonably perceiving it as such in circumstances);see also R. v. Stone (1999), 24 C.R. (5th) 1 at 72-77 (S.C.C.).



FN10. R. v. Stone (1999), 24 C.R. (5th) 1 at 72-73 (S.C.C.) (internal cause theory start-ing from proposition that accused suffering from disease of mind).

FN11. R. v. Stone (1999), 24 C.R. (5th) 1 at 74-75 (S.C.C.).

FN12. R. v. Stone (1999), 24 C.R. (5th) 1 at 73-74 (S.C.C.).


FN14. R. v. Stone (1999), 24 C.R. (5th) 1 at 76 (S.C.C.) (objective element of test not vi-olating Charter, ss. 7, 11(d)).

FN15. R. v. Parks, [1992] 2 S.C.R. 871 at 897 (S.C.C.) ("continuing danger" and "intern-al cause" theories discussed); R. v. Stone (1999), 24 C.R. (5th) 1 at 77-79 (S.C.C.); R. v.Luedecke (2008), 2008 CarswellOnt 6024 (Ont. C.A.) (accused suffering from parasom-nia engaging in non-consensual sexual relations; trial judge finding condition not "dis-ease of the mind"; accused acquitted; Crown appealing; new trial ordered; finding ofnon-mental disorder automatism or mental disorder automatism requiring considerationof cause of parasomnia, due administration of justice policy concerns, risk of recurrenceand potential danger to public).

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CED Criminal Law — Defences IV.2.(f)Canadian Encyclopedic Digest


2 — Automatism(f) — Automatism and Intoxication


To check the currency of the title, please refer to the subject title page.IV.2.(f)

See Canadian Abridgment: CRM.V.3.e Criminal law — Defences — Automatism — Effect ofdrugs or alcohol

§184 Where automatism has been produced by voluntary intoxication from alcohol or drugs,only the defence of intoxication is required to be considered by the trier of fact.[FN1] Extremeintoxication, however, may produce a state akin to automatism[FN2] which may amount to adefence, unless such a defence is excluded by statute.[FN3]

FN1. R. v. Honish, [1993] 1 S.C.R. 458 (S.C.C.) (self-induced drugs or alcohol not auto-matism).

FN2. R. c. Daviault (1994), 93 C.C.C. (3d) 21 (S.C.C.) (extreme intoxication and sexualassault); R. v. Stone (1999), 24 C.R. (5th) 1 (S.C.C.) (extreme intoxication akin to auto-matism possible); R. v. Prescott (2008), 2008 CarswellOnt 6838 (Ont. C.J.) (accused un-der influence of alcohol and Imovane; conduct involuntary and properly defined as non-insane automatism).

FN3. Criminal Code, R.S.C. 1985, c. C-46, s. 33.1 [en. 1995, c. 32, s. 1]; see also R. v.Vickberg (1998), 16 C.R. (5th) 164 (B.C. S.C.) (considering defence of intoxication asalternative to non-insane automatism); R. v. Cedeno (2005), 195 C.C.C. (3d) 468 (Ont.C.J.) (constitutional validity of s. 33.1).

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CED Criminal Law — Defences IV.2.(f) Page 1


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