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Burden of Proof

The crown has the persuasive burden in acriminal trial, which is reinforced bys11(d) of the Charter. In Oakesa reverseonus provision that if found in possessionof drugs an accused must prove no intentto traffic offended s11(d).Actus Reus

The actus reus of an offence requires and

act or omission, physical voluntariness,and causation.OmissionsAt !, offences resultingfrom omissions focused on whether ornot the court implied a legal duty. Thisoften had a morali"ing tone. InInstanthe court finds that a niece has a duty toaid her aunt because she lived and wassupported by her aunt. InBeardsleythecourt found that he had no duty to aid awoman who was not his wife. As thereare no longer ! offences in anada

( s#), duties and omissions havebeen codified. $%1& creates a duty toprovide the necessities to children,spouse, and dependants. $%%' and s%%1are the provisions for criminalnegligence causing death and bodilyharm. In Urbanovich, under s%%', themother of a child who was illed by theabusive father was guilt for failing toact. In Thorton, the court uses s1',common nuisance, to create a legal dutyto criminali"e donation of *I+ blood.

VoluntarinessThe criminal lawassumes people operate in a state ofconsciousness. CausationThe crownmust prove both factual and legalcausation. urrent standard for factualcausation is -a substantial cause(Nette), which is a rewording of theprevious standard of -beyond the deminimis (Smithers). /irst0degreemurder requires the higher standard of asignificant contributing cause(Harbottle). !egal causation is coveredin ss %%%(&),(), %%2, %%&, %%,%%. An act does not sever legalcausation if its general nature and ris ofharm were reasonably foreseeable(Maybin). The victim refusing medicaltreatment for religious reasons also doesnot sever causation (Blaue).Mens Rea

Absolute vs. Strict LiabilityThe threecategories of mens rea are established inSault Ste Marie3 absolute liability, strictliability, full mens rea. True crimes areprima facie full mens rea and publicwelfare offences are prima facie strictliability. 4illfully, with intent,nowingly and intentionally all implyfull mens rea. ause or permit implystrict liability. 5is of imprisonment withabsolute liability violates s6 of theCharter(Re Motor Vehicles). Thedefense of due diligence also mustactually be available for an offence to bestrict not absolute liability (Raham). Thereverse onus of due diligence does notviolate the harter for regulatory

offences so long as additionalrequirements are not added (holesaleTravel). NegligenceMartineaufactorsfor determining mens rea3 stigmaattached to the offence, punishment

proportionate to moral blameworthiness,intentional harm should have moresevere punishment. 7nlawful act andneglect manslaughter are both upheldconstitutionally under this (Crei!hton).illful blindnesshas also been upheldunder the harter for mens rea offences(Briscoe). !ntentionAdditional mens rearequirements are determined by

interpreting the code using the 8reigerapproach ("#H). There is a presumptionof sub9ective fault for criminal codeoffences, which words such as willfullyadd to ("#H). :ecause of the stigmaassociated with it, murder alwaysrequires sub9ective mens rea includingfor parties (Vaillancourt).Attem"ts

$ %2 provides the offence for attemptingany other crime with sentencing found ins2;. $. %;#, attempted murder has its

own offence. An attempt must go beyondmere preparation, which is a question oflaw. s acts(Maybin). $ %1(1)(b) requires the act oromission was for the purpose of aiding.$ %1(1)(c) requires proof that the

accused intended to encourage (Curran).In order to be a party to murder theaccused must have sub9ective mens rea ?foresee the ris of death (Vaillancourt),but only ob9ective mens rea is requiredfor manslaughter ? only foresee ris ofbodily harm ($ackson). Counseling$%%maes anyone who counsels a person tobe a party to an offence also a party tothat offence unless the offence wascommitted in a different way thancounseled. $%%(;) counseling includes toprocure, solicit or incite. Cons"iracyisan agreement by two of more people tocommit a criminal offence s2&. It is notnecessary that there be any proof of anact to complete the crime. 7sed on @%'protest organi"ers.Mista#e of La$

$1# of the states that ignorance ofthe law is not a defense. This does notaffect mistae of fact. fficially inducederror is a defense (Mac%ean? inquired toregistrar of motor vehicles) Advise mustbe from an appropriate official($or!ensen). 5eliance on lower courtdecisions, later overturned, is notaccepted as mistae of law (Cam&bell).Colour of Rig%t

$2%#(%) no person shall be convicted of2;'022 where they acted with legal9ustification or colour of right. 8ependson accused sub9ective honest belief(Stevenson), and statements that theaccused has a 4estern understanding ofproperty. *as been accepted for a beliefthat Indigenous groups never surrendered

their land rights ("shini). To use thedefense you must have a legal claim,maing it unavailable to allies(#rainville). :elieving anadian lawdoes not apply is a mistae of law not a

proprietary right (atson).!nto&ication

In#aviault, the defense of eBtremeintoBication is established for generalintent offences, requiring the accused toprove on the balance of probabilities thatthere as intoBication ain to automatism.CBpert evidence will be required. 7nderthe previous rule from%eary, intoBication

was only available for specific intentoffences, which seBual assault is not. Inresponse parliament enacted s;;.1 statingthat self0induced intoBication is not adefense to general intent offences wherethe bodily integrity of another person isthreatened or interfered with. The D$has found s;;.1 unconstitutional('lemmin!), but it has been upheld insome 9urisdictions (SN, D7E). *ere itwas upheld under s1 as allowing thedefense would discourage victims of

spousal abuse lined to alcohol fromreporting and also decrease lielihood ofpolice investigation.!nca"acity and C%ildren

only applies to 1 and FEAapplies to 1%. =resumption that youthwho commit certain offences arefunctioning as adults was found to beunconstitutional (#B).Mental 'isorder

$1 codifies the ! on mental disorder3requires that an accused who suffers from

a disease of the mind be incapable ofappreciating the nature and quality of theact or nowing that the act is wrong(McNau!hton). There is a statutorypresumption of sanity in s1(%). Dowfinding of D5. $uccessful3 Oommen?paranoid psychosis, believes victimconspired to ill himG S(ain?schi"ophrenia, believes he is fighting withspirits but hits wifeG"bby? believes he isa god and no laws apply. Coo&ereBcludesself0induced states from s1 application.inkoloos at review board process.Hust have an annual review, and theboard must prove real ris with no burdenon the accused.Automatism

There are two forms of the defense3 saneautomatism (acquittal), mental disorderautomatism (s1 D5). $ane automatismrequires and eBternal cause and was firstused inBletafor a stabbing directlyfollowing a concussion. An ordinarypsychological blow cannot give rise saneautomatism only H8 (Rabey). $aneautomatism requires the accused not be acontinuing danger ()arks). urrentdefault is that automatism is caused byH8, then loo for internal cause andcontinuing danger, other policy (Stone).Cvidence must be initially presented to a9udge in a voir dire, who decides if aproperly instructed 9ury could find thedefense, and then it goes to the 9ury.%uedeckecharacteri"ed seBsomnia fromsleepwaling as D5 rather than saneautomatism using internal cause.Provocation

=rovocation is found in s%;% of andis a partial defense, which reduces murderto manslaughter. =rovocation requires anob9ective wrongful act or insult, that the

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accused was sub9ectively provoed, andthat the accused acted suddenly beforepassions could cool. In the ob9ectiveanalysis the 9ury should consider eBternalevents putting pressure on the accused bynot particular idiosyncrasies (Hill? gaypanic). *owever certain characteristics ofan accused will be considered if theyrelate specifically to the provocation

(Hill). In Thibert, he pulled a gun on eB0wife>s lover and comments made by thelover there after were found to besufficient that provocation should be leftto the 9ury. Anger alone is not sufficient toallow the defense ()arent). =rovocationcannot be raised when the insult isdiscovered as a result of breaing into eB0wife>s home (Tran).Self('efense

$elf0defense requires that an accusedbelieves on reasonable grounds violence

is going to be used against them, the actwas for the purpose of defending orprotecting, and the act was reasonable inthe circumstances. s;2 is new. asesall use old law. 5ather than strictrequirements s;2(%) lays out severalfactors for assessing reasonableness.CBpert evidence can be relevant to theaccused>s reasonable apprehension ofviolence, which has allowed abusedwomen to use self0defense (%avellee).Instructional violence in prison alsoallowed for relaBing of the previousimmediacy requirements (McConnell).'uress

8uress is codified in s16, but mustof the ! on duress is still used today.$16 has been only found to apply tocommitters, parties may use the !defense, which removes the list ofeBcluded offences ()ac*uette). Theimmediacy and presence requirements ins16 have be struc down asunconstitutional (Ru+ic). Threats to ;rdparties are also open to ! duress(%an!ois). ! duress requires implicit oreBplicit threat of serious in9ury, a closetemporal connection giving no safeavenue of escape, and proportionality ofoffence committed compared to thethreats made. The use of ! defense stillrequires that the offense is not oneeBcluded by s16 and that the accused wasnot a part of a conspiracy (Ryan).Necessity

Decessity is a ! defense, which ispermitted by s(;). An accused mustshow a situation of imminent peril andthat compliance with the law isdemonstrably impossible (Mor!antaler).The leading case on the defense is)erka,where it was allowed for a group of drugsmugglers who stopped in anada due toa serious storm at sea.Cases

:urden of =roofR v Oakes? /ound with vials of hashishoil and 1#.2& cash. =ossession cannotgive presumption of trafficing s11(d).

R v oolmi!hton? ! Cngland. shoots

wife, claims accident. rown must stillprove murder. =resumption of innocenceis golden thread.M,Nau!hten? =resumption of sanity is

allowed.R v St On!e %amourea-? s%&(1)(g)presume that breathaly"ers accurate toremove arter. Hust have eBptert show itdidn>t and that caused the reading ofover .'. 7pheld under s1.Actus 5eusR v Instan? !ets aunt die of gangrenewithout helping in anyway or telling

anyone. +iolated legal duty.)eo&le v Beardsley? Han drins withmistress. $he taes morphine. *e doesn>thelp. Do legal duty to woman who is notwife.R v Urbanovich? o0accused withhusband. *e abuses infant. $he alsoconvicted for failing to intervene.R v Thorton? t assault

girl. :y not asing he was willfully blindand guilty.

R v "#H? didn>t now she was

pregnant. @ives birth early in 4almartbathroom. :elieving child stillborn leavesit. hild abandonment must havesub9ective H5.

R v Vaillancourt? 5obbery, wants to

use nives not guns. Accomplice brings

gun. ass for bullets and eeps in glove.

@un ills. $ub9ective H5 required formurder.

orporate *omicideR v Curra!h Inc? % men die in a mine.Do convictions because of problems withcorporations and H5.Inchoate rimes

R v Sorrell? Attempted robbery chargeacquitted. 4earing mass and had guns,shae door then leave.R v. %ucas? :reaing glass doorsufficient for attempted robbery.Assault 8efencesR v $obidon? onsensual evenlymatched bar fight. annot consent toserious bodily harm.

R v )aice? $erious harm must beindented and caused to vitiate consent.R v Mc#onald? /ight over victim goingto front of $ubway line. onsent shouldbe left to 9ury when serious harm notindented.

R v Currier0 *I+ told by nurse to use

condoms. 8oesn>t and lies. Don0disclosure plus ris of serious bodilyharm is fraud, vitiating consent.R v illiams? Do conviction becausecouldn>t prove the woman was *I+0

before encounter.R v Mabior? has (unprotected) seB

with women without disclosing *I+.Dot fraud if treatment and condoms,which gives ; of # convictions.R v /(anchuk? 16 year0old lured into

van at 9ob interview. grinds against her

after she says no. Do implied consent forseBual assault.R v %eclerc? *ocey setting. +iciouscross chec to bac of nec. Impliedconsent for contact necessary for contact

incidental to the game.R v 'aith? *ocey fight, hits victim on

right side of face wearing glove causing

9aw fracture. +ictim had taen >s stic

which was invitation for consensual fight.R v O!!0Moss? *its developmentallyhandicapped adult charge with largemetal spoon & times on forehead. Dotprotected by s2; because adult.R v #u&eron? $trapped 1; yoemotionally disturbed son on bare but 1'times with leather belt. To severe for s2;

protection.C'C1% v Canada 2"34? s2; does notviolate that harter.R v %e&a!e? hristmas tree salesmanpushes fire inspector trying to close hisbusiness. 8e minimis.R v Matsuba? Teacher touches leg ofgrade # girl, shave test. 8e minimis.onsequence of conviction too severe.R v Ste(art? =ushes ! wife. Do deminimis in the conteBt of history ofintimate violence.

Histae of /actR v )a&&a5ohn? !unch with alcohol,

then to >s house. +ictim running into

street naed wearing bow tie and handsbound house later. Histae of fact forconsent doesn>t need to be reasonable.onvicted because court doesn>t believehonest mistae.

R v Sansre!ret0 disconnects phone,

threatens and ties up victim. $he tries toconvince him she will stay, seB. Domistae because had happened before and

was told it was wrong.

R v Seaboyer? $triing down of somerape shield laws. Do cross0eBaminationon victim seBual history could preventfull defense.

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R v. O,Connor? wants residential

school records in seBual assault case.rown refuses, 9udge forces them tohand them over.R v. Carosela? counseling centres shredrecords before seBual assaults go to trialso they can>t be forced to discloseintimate details about victim.

R v $"? choes intimate partner to

unconsciousness, waes anally penetratedwith dildo and hands bound. annotconsent while unconscious and noadvanced consent allowed.Histae of !awR v #ocherty? s -willfully violatesprobation order. *ere sitting in care whiledrun. are and control offenceconviction but not s because notnowing it was a crime is not -willful.R v $or!ensen? s1; nowingly sellsobscene material. 5elied on ntario /ilm

:oard 5atings, could form officiallyinduced error but instead find no H5because -nowinglyR v Cam&bell? he" =ierre>s naeddancing. Trial level decision had said o.!ater overruled. onviction. Do officiallyinduced error.olour of 5ightR v Stevenson? =eguis hief burns downunsafe bridge on reserve, aftergovernment fails to act for years. Eudgefinds no honest belief.

Innu versus N"TO? ccupation ofrunway to protest low flying planes. @oesto what is land. olour of right available.R v #rainville? =riest participates inthree0minute roadbloc. olour of rightonly applies to the group, which canmae the claim, not their allies.R v "shini? @oose :ay occupation.*onestly held belief that their ancestorsnever gave away their right to the landaccepted. 5eversed on other grounds.R v atson? @reenpeace fishing vessel

outside of %'' mile "one toss butyric acidonto other ship. laims o5 for anadianlaw no longer applying. /ails as is foundto be a mistae of law.IntoBicationR v Beard? 1#%' rape and murder of 1;yo. 8ifference between general andspecific intent for intoBication.R v %eary? IntoBication is not a defenseto rape, which is general intent. H5 to getdrun can substitute.R v Bernard? harter now. Ha9ority still

eep rule from !eary, but 4ilson presentsdrun to point of automatism.R v #aviault? $easoned alcoholic rapes awoman who is confined to a wheel chairafter heavy drining. 8efense ofautomatism intoBication accepted foracquittal.R v 'lemmin!? $eBual assault findss;;.1 violates harter for ntarioR v SN? $eBual assault by one managainst another in the drun tan, whichneither remembers. $;;.1 upheld in D7.

Incapacity and Hental 8isorderR v #B? Indigenous youth in foster carewith /A$. =resumption that youngoffenders are adults for certain crimesviolates harter.

R v McNau!hton? $hoots secretary for=H due to delusions about the Tories. !insanity available if incapable ofappreciating quality of act or nowing itis wrong.R v Oommen? t apply to him. :rings drugsacross the boarder. t in9urepolice. $elf0defense allowed.R v 3eor!e? 8rives car at police indefense of another. Dot successful. $eenas opportunistic use of D8uressR v )arker? =rison. +iolence threatened

later if doesn>t participate in riot.8uress denied based on narrow s16 andno immediate threatR v Steane? =ost war. =roduced Da"ipropaganda because they threatened hisfamily.R v 3ardiner? $ale of handgun toundercover cop, entrapped by informant.Do duress for criminals who voluntarilyput themselves in dangerous situations.R v Robins? *ad been informing onhusband. ops send her bac. 4arns

father of girl before idnapping. $tillfound no immediacy of threats and partyto idnapping.R v )ac*uette? @un to head to be adriver for robbery, which is eBcluded ons16. $16 doesn>t apply to parties, onlycommitters.R v Mena? Tries to undercut robbers>plans in little ways.R v Hebert? utrageous lies to try toshow 9udge something was up but gangmembers in court threatening him. /inds

no intent to purger.R v %an!ois? =rison guard smuggles indrugs because of threats to wife and ids./ound morally innocent. Carly harters16 challenge.R v Ru+ic? Imports heroin from $erbia toanada due to threats to mother in $erbia./ind police there corrupt and would be nohelp. 5eturn to most ! duress over s16.

R v Ryan? orders hit on abusive

husband from undercover cop. Dot duressbut charges stayed.

DecessityR v Mor!entaler? =rovided abortions fordepressed pregnant woman at ris ofsuicide if forced to carry baby to term.Eury acquits. Appeals say not necessity.*e is too separate from the harm.R v )erka? 8rug dealers on a boat, bigstorm. ome to shore with drugs. /oundto be a pressing situation.R v %an!don? Innu protest over lowflying planes. harged with not leavingembassy. /ound legal necessity as all

other methods eBcept protest had beentried.R v %atimer? Cuthani"es severelydisabled daughter. /ind he had manyother options.