CRIMINAL OUTLINETHE APPROACH

TACKLE THE PROBLEM Who are the accused and victims

For each A, look at what actions they made Could these actions/omissions be an offence in

CC i.e. mischief theft murder assault

Criminal liability must have AR

Voluntary Act/Omission Causation (legal/factual)

MR Concurrence

What are potential defences Mistake of Fact Mistake of Law Intoxication NCRMD Automatism Provocation Self-Defence

Are the police involved? Any police misconduct?

Traffic Stop Search & Seizure

Warrant Arrest & Detention

warrant Confessions

Voluntariness Right to Counsel Right to Silence

Legal System implicated? Matter goes to court

Exclusion of evidence Oakes test Charter violations b/c misconduct

WHO HAS STANDARD OF PROOF? Generally Crown has to prove BRD Ar, MR and No

Defences If there is an area of reality Crown has to disprove

defence BRD HOWEVER, some cases require A to prove defence on BOP

CONSIDER A’s positionality

Race Gender Class Sexual orientation ability

If seeking to appeal consider: Search & Seizure – against s8?

Exclude under s24(2)? Charter violations b/c misconduct No criminal liability b/c

No AR No MR Relevant Defences

Mistake of Fact Mistake of Law – Exception Intoxication NCRMD Automatism Provocation Self-Defence

FOR CRIMINAL LIABILITY:

Crown must prove AR, MR and disprove relevant defences BRD (Woolmington) In order to refute A’s s11(d) presumption of innocence from Charter

STATE which section of Crim Code

ACTUS REUS- VOLUNTARY

o AR = voluntary (Rabey, Parks, Daviault in Ruzic)o To be voluntary willed physical act or omission but must have physical control in order

to choose (Bratty)- ACT or OMISSION

o ACT =o OMISSION = failure to do what legally obligated to do

What is the duty? (statute or CL) No duty to be good Samaritan No duty to bf/gf unless express undertaking (Browne)

- CAUSATIONo Factual = causal linko Legal = “significant contributing cause” (Nette) restates Smithers – beyond deminimus

Factors to consider (not determinative) Reasonable foreseeablilty Independent act

o OR direct result of original act (Blaue, Pagett) Thin Skull Remoteness

MENS REA- What is required?- What does requirement mean?- Does it apply?

CONCURRENCE- btwn MR & AR

DEFENCES- Mistake of Fact

o honest [&reasonable] depends on MR- Exception to Mistake of Law

o *official induced error- Intoxication

o specific intent, general intent – akin to automatism- Automatism

o Internal Cause, Continuing Danger, Policy- NCRMD

o Disease of Mind, Appreciate Nature, Wrong- Provocation

o Wrongful Act, Deprivation of Control, Sudden- Self-Defence

EVIDENCE & BURDEN OF PROOF

AR MR

concur

CONTEMPORANEITY & CONCURRENCE

RELATIONSHIP: AR & MR

Foundation of Criminal Law

1. Presumption of innocence at common law now codified s11(d)2. Proof of GUILT, BRD BRD not codified BUT SCC confirms as essential to rebut s11(d)

in OakesCriminal Law Standard

Crown must prove AR + MR, as well as disproving BRD relevant defences (Woolmington)

Exceptions where Crown doesn’t have to prove BRD

1. Insanitya. Reverse onus on ∆ to prove insanity on BOP under s16 CC

i. (violates s11(d) but saved by s1 - SCC Chaulk and Morrissette)2. Some defences require an “air of reality” shown by accused first (self-defence, provocation)

(Woolmington)3. Reverse Onus for some statutory provision

a. Courts might strike down as unconstitutional and not saved under s1i. Ex. Oakes: reverse onus under s8 of Narcotic Control Act violates s11(d)

and not saved under s1Standards of Proof Definitions

BRDNot absolute certainty BUT closer to absolute certainty than BOP (Starr – describes how Lifchus should be read)

Lifchus: states description of what judge should say to jury (see Sharon’s outline)

BOP More likely than not that a fact is true; “civil standard” b/c often used in civil proceedings

“Air of Reality” (evidentiary burden)

Crown doesn’t have to disprove all defences – only relevant defences if there is an air of reality (Woolmington) (i.e. self-defence or provocation) UNLESS there is an air of reality presented at trial by Crown or defence accused acted in self-defence or provocation

Courts resist numerical percentages – but if they didn’t…

100% .….. absolute certainty

……. proof beyond a reasonable doubt

50 …..… proof on a balance of probabilities (more likely than not: 50% + 1)

…….. some evidence (air of reality)

0 ….… no evidence/no proof

VoluntaryActor

OLDCause Harm

AR MR

concur

+ No Defences

Concurrence & Contemporaienty

To what elements of the AR does MR apply?

AR& MR need to concur (Fagan, Miller, Cooper and Williams)

No concurrence of MR & AR; not guilty of aggravated assault (Williams)

Don’t need MR for entire AR to satisfy concurrence, just need MR at some stage btwn beginning and end of AR (Cooper – time A strangling victim even if blacked out part way through act)

In complex cases, resolve concurrence by:1. “One Continuous Act” Courts will sometimes treat A’s separate acts and omissions as “one

continuous act or transaction” (Cooper, Meli, Fagan)2. “Omission of Legal Duty” – HL created new common law duty where 1st act caused injury and

2nd act was not fixing it; AR (omission) & MR (intention) concur (Miller)

REMEMBER – courts have preferred a more flexible application of contemporanety requirement (RBHS 302); even if courts find no concurrence, will frequently be guilty of lesser crime

To find criminal liability:

ACTUS REUSGeneral Principle

Actus Reus = prohibited conduct (listed in Criminal Code)

Crown has to prove beyond a reasonable doubt the AR

VoluntarinessGeneral Principle 1.) Common law principle that no conduct can be criminal unless it is done voluntarily

a. (this is not in the CC but it is a principle of fundamental justice since it would be unfair to condemn someone who couldn’t physically control)

2.) Act or omission must be voluntary (Rabey 1980, Parks 1992, Dariault 1994, Stone 2000 in Ruzic)3.) For AR, to be voluntary you must be able to choose through a willed physical act or omission BUT

note that a person must have physical control over their actions in order to choose (Bratty 1963)a. PHYSICAL INVOLUNTARINESS IS ESSENTIAL – if it is not physically voluntary there is

no AR and therefore no criminal liabilityb. Voluntariness is objectively determined

When is it not voluntary (unable to choose)

1.) Physical Involuntarinessa. Conscious: spasm, twitch, reflex action, unexpected mechanical failure of vehicle, trip and

fall, physical compulsion, physical impossibility to fulfill legal dutyb. Unconscious (Automatism)

FOR CRIMINAL LIABILITY:

Crown must prove AR, MR and disprove relevant defences

beyond reasonable doubt (Woolmington)

i. Mental Disorder1. mental disorder like psychomotor epilepsy,

ii. Self-Induced, Extreme Intoxication akin to Automatism1. involuntary intoxication (King), voluntary intoxication (Daviault),

iii. Other Causes (other than insanity or intoxication)1. sleepwalking (Parks), concussion (Bleta), delerium, epileptic seizure

2.) Moral Involuntarinessa. Ruzic introduces concept of morally involuntary conductb. If morally involuntary flag as a potential defence under duress or compulsion

ActGeneral Principle i. Prohibited act is always set out in the Code or the statute creating the offence

ii. What is the meaning of the prohibited act?1. Look for definition in the code or statute, or case law2. If not defined revert to ordinary practices of statutory interpretation

Status Offences 1.) A status offence can be described as criminalizing ‘ state of being’ rather than some positive action2.) There are very few if any pure status offences in Canada – if there were offences could look to

Charter s7 for remedy3.) Some critics argue that criminalizing all of the acts surrounding a particular status ultimately creates

status offence wrt practical implications (sex work)

Omission of Legal DutyGeneral Principles i. No general legal duty to be good Samaritan

ii. Omission is a failure to act when law imposes a duty to act1. In order to figure out if you have omitted to do a legal duty see if breached legal duty in

code, committed a specific omission offence or committed a general omission offence

Codified & Common Law Legal Duties

iii. Criminal Code, legal duties are:1. S215(1) – duty to provide necessaries of life to certain dependents

a. Parent to child under 16b. Spouse, common-law partnersc. Person under charge

2. S216 – duty of persons to use reasonable care in undertaking acts that may endanger life3. S217 – duty of persons undertaking an act to actually do the act if omitting to do it may be

dangerous to life4. S217.1 – duty on persons who direct the works of others to take reasonable steps to

prevent harm to other persons arising from that work5. S79 - duty re: explosive substances6. **these legal duties put positive obligations on individuals to act

COMMON LAW CC (1892)1. Relationships of dependency (Popin, Nixon)

1s 215(1): duty to provide necessaries of life in relationships of dependency (Popin)(a): parent for child < 16: duty to provide necessaries of life (b): spouse / CL-partner to each other(c): to a person under your charge if that person is unable to withdraw from your charge, or to provide necessities for themselves (Nixon)s. 217:

Popin: OCA: parent has a CL duty to take rsbl steps to protect child from illegal violenceNixon: 1990 BCCA: police officer has a CL duty to provide care and protection to inmates

2. Undertaking to do something

s. 217 legal duty to DO an act one has undertaken to do, if an omission to do the act is (or may be) dangerous to life. When one seriously commits oneself to undertaking which clearly expresses intent to be legally bound, and usually but not necessarily involved being relied upon (flows from the actions of the acc and not from the relationship between the parties) Defined in Browne (1997)

Browne: 1997: failure to render assistance to drug partner when she had an overdose after he injected her w/ crack– no duty. Had undertaken to take her to the hospital when she swallowed cocaine – did not undertake a legal duty

3. Duty to use reasonable care with dangerous objects/ when performing dangerous tasks

s. 216: legal duty to have and to use reasonable knowledge, skill and care in: undertaking any act that may endanger the life of another person (except in cases of necessity), undertaking to administer surgical or medical treatment to another person (except in cases of necessity)

Coyne: NBCA: in regard to the offence of criminal negligence causing death

Thornton: 1991, ONCA: failure to disclose HIV+ when

(Coyne, Cuerrier?)(SCC Thornton, Cuerrier? Miller in Canada?)

donating blood. SCC relied on s.216; CA relied on CL tort duty in criminal negl. (s219)

Specific Omission Offences

1. s. 50(b) - fails to report to the police a high treason [s. 46(1)] that is about to be committed2. s. 80 - breach of duty in regard to the care of explosives [s. 79]3. s. 127 - failing to obey a court order4. s. 129(b) - omitting to assist a police officer when requested5. s. 252(1) - failing to stop and render assistance after being involved in an accident.6. s. 254(5) - failing to provide a sample of your breath.7. **these are offences for failing to do what you were legally obligated to do, specifically set out

General Omission Offences

1. S 180(2) Common Nuisancea. Everyone commits a common nuisance who:

i. does an unlawful act OR ii. fails to discharge a legal duty and thereby (a) endangers lives, safety, health,

property2. Criminal Negligence Causing Death (220)/Bodily Harm (221)

b. S219 defined criminal negligence as: “Everyone is criminally negligent who:i. in doing anything ORii. in omitting to do anything that is his duty to do iii. show wanton or reckless disregard for the lives or safety of other persons, iv. for the purposes of this section, ‘duty’ means a duty imposed by law

3. These offences deal with accused committing a crime either by an act or by omitting to do a legal duty, but what specifically that legal duty is is uncleara. Some courts of appeal have held that legal duties can arise by statute (federal or provincial) or

common law. SCC has not expressly ruled on this later point. b. In some cases courts tend to rely on common law duties as opposed to statutory duties but in

doing so this could violate the spirit of s9 of the Criminal Code which abolished all common law offences(or even s7 b/c against PFJ not to know in advance) b/c

a. Reliance on CL duty to fill content of existing offences might not technically create a new CL offence BUT seems like its very close – esp. when court are relying upon new CL duty created or expanded

b. In this context – should Canadian court create new legal duty like Miller-mattress smoulders by HL or would case like Miller fit into s216

4. CL has duties in them and court could follow but often chooses not to:a. Coyne (court relies on common law) b. Popin (court relies on common law), c. Thornton (SCC relies on statute s216, appeal level relied on common law), d. Browne (relies on statute s217)

Challenges w/ Undertakings (Browne & s217)

1. No legal duty to provide care arises btwn friends or bf/gfa. UNLESS there is “an undertaking” as per s217

i. Undertaking defn in dictionary too broad (anything from assertion to promise) for crim liability

ii. Threshold for undertaking must be sufficiently high to justify penal consequences – “mere expression of words indicating a willingness to do an act cannot trigger the legal duty”

iii. Nature of commitment must have clearly made undertaking with binding intent2. No express or implicit undertaking – A’s words “I’ll take you to the hospital” aren’t an undertaking

creating a legal duty under s2173. FERGUSON SAYS

a. Discussion of undertaking by Browne is strict and confusingb. Ferguson thinks it was an express undertaking to take to hospital but thinks A carried out

that undertaking, Ferguson would acquit b/ci. No breach of legal duty

1. Reasonable care isn’t required under s217 but 2. EVEN IF it was No evidence delayed in calling taxi, no evidence

ambulance would have arrived fasterii. No proof of causation

1. She was (or was nearly) dead when taxi arrived, no evidence she would have lived if ambulance arrived instead

iii. No proof of MR1. Did not reach the high level of marked and substantial departure from

conduct expected to constitute wanton and reckless disregard under crim neg for MR

CausationTo complete AR need to show, one (or both RBHS 333-337) of:a. Causes Prescribed Harm, orb. Occurs in Prohibited Circumstances

ii. “while impaired”iii. “in a dangerous manner”iv. ***criminal b/c of risk for potential for harm in the future if conduct continues which is why

this is prohibited

Causes Prescribed Harm: Factual Cause

When an offence requires proof that the accused “caused” a particular harm or consequence – the Crown must prove ‘causation’ BRD – this means factual and sufficient legal cause1.) Factual cause: at least some causal link btwn A’s conduct and the criminal harm

a. YES = “but for”b. NO factual causation:

i. If there is reasonable doubt whether A’s act/omission can be linked to the harm suffered (Johnson blow to the head)

ii. If no link btwn A’s conduct and harm (White – poison mum and heart attack)

Causes Prescribed Harm: Legal Cause

No need for A’s conduct to be “sole cause”, “main cause” or “substantial cause” (There can be more than one legal cause) (Smithers)

Nette, Arbour J: legal causation is “based on concepts of moral responsibility and is not a mechanical or mathematical exercise”

Maybin: “Any assessment of legal causation should maintain focus on whether the A should be held legally responsible for the consequences of his actions, or whether holding the A responsible for the death would amount to punishing a moral innocent”

1.) Factual causation must reach legal causation in order to justify liability, this means:a. ALL CRIMES (except first degree murder inder s231(5) and 231(6) – see Harbottle):

i. Set out in Canada in Smithers “any contributory cause that is beyond the de minimis range”

1. 2001 SCC rephrased as “a significant contributing cause” (Nette)a. Nette says test does not alter substance of Smithers that is

questionablei. NOTE: they don’t actual mean same thing – Nette restatement of Smithers

increases the standarda. Nette Majority: says it should be revised to “significant

contributing cause” rather than “not a trivial clause” “not insignificant” ; BUT judges have discretion to use either language

b. Nette Minority: should not be rephrased b/c there is a material difference btwn options and as Professor Yeo argues “changing the terminology of the Smithers test in this manner would drastically change its substance”

b. FIRST DEGREE MURDERi. Must be “an essential, substantial and integral part of killing the victim” (Harbottle)ii. NOTE: substantial > significant … intuitive?iii. When is it 1st degree?

1. S231(5) – murder is in the first degree when it is death caused by A while committing or attempting to commit: most likely under this!

a. Hijacking an aircraft (s76)b. Sexual assault (s271)c. Sexual assault with a weapon, threats to 3rd party, causing

bodily harm (s272)d. Aggravated sexual assault (s273)

e. Kidnapping and forcible confinement (s279)f. Hostage taking (s279.1)

2. S231(6) – 1st degree b/c also s264 (criminal harassment), terrorist activity, organized crime, 423.1 (intimidate justice system participant)

2.) ASIDE – test for causation in Canada considered lower threshold than English test, which requires:a. Smith (1959), Blaue: “substantial and operating clause”; not merely setting or background

for another overwhelming cause to take effectb. Modern cases - Pagett, Cheshire, Mellor: “significant cause”

Intervening Cause1. Maybin (SCC 2012 – test for intervening cause)

a. Whether the subsequent act is so strong (or overwhelming) that the A’s contributing act is now an insignificant contributing cause (i.e. the mere setting or background for this new, overwhelming intervening act)

i. If 2nd act/event was a response to or directly linked to A’s act then continued to be significant cause

ii. Consider Factual matrix (not determinative):(a) Reasonable foreseeability(b) Independent act approach

a. Will negate legal causation for the original act IF the intervening cause is independent of the original act AND not acting in concert with the accused (White – heartattack unrelated poison)

b. Will NOT negate legal causation if direct result of original act (i.e. dependant on original act) (Blaue, Pagett)

i. Blaue: refusing blood transfusion direct result of A’s wounding

ii. Kitching & Adams: doctor’s turning off life support direct result of A’s wounding

iii. Pagett: A using V as human shield when shooting at police, if V shot by police direct result of A’s conduct

iii. Not an intervening cause unless so powerful that it changes A’s action from legally relevant to of no legal relevance and only factual significance

2. Special rules for homicidea. S222(5)(c): Homicide Exceptions

i. If V does anything that causes their own death (i.e. jumps from moving car) due to threats, violence or deception by A then A has caused injury

ii. V’s actions are not intervening cause because directly linked to Ab. S221 (1) – person commits homicide when, directly, or indirectly, by any means causes the

death of a human beingc. S224 – A causes death if they by act or omission does anything that results in their death

notwithstanding that prevention of death might have been possible by proper treatmentd. S225: Death from treatment of injury

i. If A causes injury that is dangerous in nature and death results, A is the cause of V’s death notwithstanding the immediate cause of death is proper or improper treatment applied in good faith

ii. NOTE: this is contrary to the ruling in Reid & Stratton (that Ferguson thinks is questionable) where improper CPR by friends was intervening act

e. S227 – death within a year and a day (repealed in 1999)f. S228 – no person causes death of a human being solely by influence on the mind (i.e.

scarring someone to death) except where a person causes the death of a child or a sick person by willfully frightening him/her (see 222(5)(d)

Thin Skull - Does not negate legal causation1.) Must take your victim as you find them!! (Smithers, Blaue)

a. Smithers: kick in stomach should not have killed BUT b/c malfunctioning epiglottis it did and still responsible

b. Blaue: severity of stabbing not too high BUT b/c refused medical treatment for religious reasons it did and still responsible

Aside: if victim negligent treating self, too bad!1.) Remoteness

a. Cause might be too remote to establish criminal liability (suggested in Smithers)

AR MR

concur

+ No Defences

AR MR

concur

+ No Defences

How do you answer a causation question (need to know authority & why & if changed)

1. Causation has two elements:o factual cause o legal cause

2. Legal Causeo test originally stated in Smithers as beyond deminimus o test revisited in Nette: significant contributing cause

Court did not want to change test, it was a “rephrasing” IN REALITY: this seems to shift the meaning

o Harbottle: higher test for 1st degree murder “essential, substantial and integral” Substantial means more than significant

3. Intervening Acto if A’s original conduct is a substantial cause of second act legal cause will not be

negated (BUT if intervening act is so strong that the original act is now an insignificant contributing cause THEN negates legal causation)

FERGUSON: sometimes causation rules seem too harsh (Smithers, Stratton and Reid, Shanks) – minor assault leading to death

Do you think Smiths, Stratton and Reid, Shanks bear the responsibility which assigns individual blame but should bear all the unforeseen consequences that follow – causation test says yes

May consider the “power” of intervening act 4. Thin Skull

o take victim as you find them, doesn’t negate causation

MENS REA

General RuleMR has no settled meaning, there is no definition of MR in the CC and is not often stated in the CC

1. SCC in Martineau, Motor Vehicles, Creightona. Law ought not to punish morally innocentb. Level of moral fault for an offence ought to be proportionate to seriousness and

consequences of offence2. Shift in understanding: Tendency to use MR in the past to refer to an undefined moral

blameworthiness (evil, wicked, depraved mind) now MR is specific states of mind a. Fletcher: shift from normative to descriptive

Applying MRPrinciple of Symmetry1.) There must be MR element for each element of the AR (symmetry) (SSM)

a. EXCEPTION – Predicate Offences (consequences don’t need MR –Creighton); don’t need MR for each and every element of AR (De Sousa)

i. Offences composed of an underlying offence (i.e. assault) and additional aggravating consequences (i.e. bodily harm or death(

ii. (1) assault causing bodily harm iii. (2) aggravated assault s268(1)

1. Godin: consequences (i.e. wounding, maiming, disfigures etc) does not need to be foreseen

iv. (3) unlawfully causing bodily harm s2691. De Sousa: no requirement to subjectively foresee bodily harm will

arise; objective foreseeability of risk of bodily harm & fault requirement of underlying unlawful act satisfied PFJ under s7

v. (4) unlawful act manslaughter s225(5)(a)1. Creighton: does not require subjective or objective foresight of death –

only objective foreseability of risk of bodily harm (that is not trivial or transient) couple with fault requirement of underlying unlawful act

Requisite MR See Chart

Consistent with Charter

Every law has to be consistent with the Charter- in particular s7!

o Therefore STIGMA OFFENCES: Court has listed 4 crimes that must be subjective intent and can’t use

objective standard b/c of stigma related to offence: 1. Murder (Vaillancourt) 2.Attempted Murder (Vaillancourt) 3. Theft (Vaillancourt) 4. Crimes Against Humanity (Finta)

- BUT some true crimes can be objective and not inconsistent with Charter:o Dangerous Driving (s249) is Objective based on Hundal penal negligenceo Careless Use of Weapon (s86(1)) is objective based on Hundal penal

negligence

Objective Fault Criminal Negligence marked and substantial departure from conduct of reasonable person; “shows wanton and

reckless disregard for lives or safety of others” (Tutton and Waite)o SCC split 3-3 whether crim neg is objective or subject in Tutton & Waite BUT in F(J)

in 2008 SCC held test can be purely objective ss 219, 220, 221, 222(5)(b)

Penal Negligence Crown must prove BRD A’s conduct = “marked departure” from standard of care that a

reasonable person would use in the circumstances

Conflicting approaches to Objective Test A “false” modified objective test (Cory J in Hundal 1993 SCC)

o bring in circumstances (not person)o BUT although Cory called it this it is clearly not a subjective, personal characteristics

test SINCE (for at least driving offences) says personal factors such as age, experience, physical/mental health don’t need to be considered

Reasonable person objective test – non-individualized (McLachlin in Creighton 1993 SCC)o Factors such as age, inexperience, lack of education should not be taken into

account to determine reasonable person A true modified objective test (Lamer dissent in Creighton 1993 SCC)

DEFENCES

A has to establish air of reality of defence before it can be put to jury/judge (Osolin)

Burden on Crown to disprove defence BRD once an A has raised air of reality for all elements of defenceBUT there are some cases where reversal onto A to prove defence should succeed:

- mental disorder- intoxication (daviault)- automatism- mistake of law

Excuses- mistake of fact- intoxication- automatism- mental disorder- provocation

Justification- self-defence

Common law defences still apply - CC s8(3) “every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force…”

**when codified court can only tinker with it so much, when not codified the court has much more space to tinker with it

MISTAKE OF FACT (i.e. didn’t know police officer)

Principle Mistake of Fact = defence IF it negates MR

NEVER a defence for absolute liability

If mistake is characterized as a question of mixed fact and law can raise defence of mistake of fact to negate MR

If subjective MRMust be honestly mistaken to negate MR1.) i.e. not intentional, not reckless, not willfully blind2.) doesn’t have to be reasonsble (but harder to believe if unreasonable)

EXCEPTION – rape is honest and reasonable

If objective MR Must be honestly & reasonably mistaken to negate MR

Dispensation Aquittal

MISTAKE OF LAW

PrincipleCc s19: Ignorance of the law is no excuse

- why? Rationale in Jorgenseno evidentiary concernso encouraging socially undesirable state of mindo Anarchy; conflict with moral basis of lawo Ignorance is blameworthy per se

Molis: due diligence in respect to not making a mistake of law is no defence to a SL offenc

BUT there are some exceptions (for these to be a defence A must prove on BOP)- the exceptions prevent manifestly unjust conviction so s19 is not in violation of s7 (Lamer

in Jorgensen)

Exceptions where mistake of law is excuse

1. mixed law and fact – ex. Bigamy (didn’t know married)2. unpublished rule

a. defences applies to Regulation that has not been published in official Gazette (BC Reg Act s3(2); Statutory instruments Act s11(2))

3. mistake of civil lawa. tension btwn Prue & Baril and Pontes (but Pontes didn’t overrule P&B)b. Pontes (1995): ignorance of automatic suspension under provincial Motor Vehicle act

is mistake of law, no defence to charge of driving while suspendedc. Prue & Baril: mistake of civil law can be mistake of fact when it is an essential element

under CCi. Not a defence if under provincial law (MacDougall) or military regulation

(Forster), must be CC4. officially induced error

a. first recognized in MacDougall but not applicable thereb. Aplies in Cancoil (ONCA 1986) but limited to:

i. Regulatory statutesii. Erroneous advice must come from official responsible for admin/enforcement

of lawiii. Reliance must be reasonableiv. Onus on A, BOP

c. SCC first got issue in Jorgensen (1995) but no ruling – Lamer alone recognized itd. SCC unanimously confirmed as a defence in Levis, adopted framework set out by

Lamer in Jorgensoni. Defence is excuse, not justificationii. Limited exception to rule ignorance of law not excuseiii. Applies to regulatory & CC offencesiv. A must prove defences on BOP (follows Cancoil)v. Question of law for judge (not jury) to decide whether officially induced error

provenvi. If defence proven then remedy = SOP, not acquit

e. Modern Test (Lamer with one modification by Levis)i. Error of law or of mixed law & fact madeii. Person who committed the act considered legal consequences of his or her

actionsiii. Advice obtained came from appropriate officialiv. Advice reasonablev. Advice erroneousvi. Person relied on advice in committing act (Levis: and it was reasonable for

person to rely on advice)vii. **Levis stresses must assess objective reasonableness of advice and A’s

reliance on advice5. mistake of law while enforcing law

a. Devereauc: s25 persons administering law are justified and legally protected for their actions in enforcing law if acted in good faith and on reasonable grounds

6. colour of rights – ex. Honestly thinks don’t have propertya. honest but mistaken belief you have a right in law to do something otherwise illegal,

applied in Howson7. negate MR

a. F thinks this idea is wrongb. Mistake of law negates some forms of MR such as willful (Docherty)

INTOXICATION

Codified? Partly cc33.1- 1995 amendment in response to Daviault- self-induced intoxication no defence for general intent with assault/threat of violence (even if

akin to automatism/insanity)- does not deal with specific intent crimes

Common law defences still valid under s8(3)- specific intent can argue intoxication

o Bouchard-Lebrun: murder is specific intent BUT unclear whether intent to murder is rational intent (SCC 2011 convicted A who had drug-induced psychotic delusion and committed murder b/c told to murder by higher being BUT didn’t have rational intent to choose btwn right and wrong)

Principle3 branches:

1. specific intent offence

a. ex. Murder, robberyb. *so drunk that they couldn’t form specific intent

i. if “with intent to” or “for the purpose of” likely specific intent crimec. Crown has to prove BRD

2. general intent offence that is not assaultivea. Daviault drunk!b. *so drunk that akin to automatismc. A must show on BOP

3. general intent offence that is assaultivea. ex. Assault, manslaughterb. intoxication is never a defence

Modern Approach to Intoxication

Post cc s33.1 (1995-Present)

1.) Intoxication is a defence for specific intent crimes if the accused incapable of forming the required intent (negates MR) from Beard

2.) Extreme intoxication akin to automatism/insanity (Daviault drunk) is a defence to general intent crimes [EXCEPT for general intent crimes with involve an assault or threat of violence – 33.1]

a. Charter: does violate s7? Saved s1? Gerry – likely saved3.) Onus

a. Specific: crown BRDb. General: accused BOP

4.) Dispensationa. Acquittal but possible conviction of lesser included offence

5.) Notea. Applies to drugs and liquor (Curtis)b. NOT a defence to driving a vehicle (policy grounds), does not violate charter (Penno)c. NOT a defence to mistake of fact caused by self-induced intoxication (policy grounds)

(Moreau)d. NOT a defence to objective MR crimes (ex negligence) b/c notion that reasonable person is

never intoxicatedHow do you determine if specific or general intent?

George:- “intention: acts done with the specific and ulterior motive and intention of furthering or

achieving an illegal object, rather than acts done to achieve an immediate end”

If “with intent to” or “for the purpose of” – likely specific intent crime

Critique:- Dickson J dissent in Leary – abandon specific-general intent rule that allows intoxication to be

admitted to negate MR (regardless of if specific or general)- Ignores wider ratio in Beard

o Courts seems to emphasize Lord Birkenhead’s expression of “incapable of forming the specific intent” when defining defence of intoxication

o BUT wider ratio of Bear suggests not just about specific intent rather “drunkenness rending a person incapble of the intent [for any crime] would be an answer”

- Not logical or just to allow intoxication as a defence for specific intent and to deny it as a defence for general intent

o Seems rooted in policy that don’t want to let people off – but all or nothing specific-general rule doesn’t seem logical

o Specific intent crimes (often but not always) involve a lesser, included, ‘general intent; crime which a drunken accused can be convicted of

o Proposed option: make intoxication available as a defence to all intentional crimes (whether specific or general); A in circumstances should be convicted of separate and new offence of “dangerous or negligent intoxication”

- Very difficult in some cases to determine if general or specific intento Distinction was set out in George but still hard to apply; not clearly stated

Predicate offences come into play!

Ex. Murder- if don’t have specific intent for murder then will likely be convicted of general intent crime of

manslaughter

Ex. Robbery- if don’t have specific intent for robbery then will likely be convicted of general intent crime of

theft

NOT CRIMINALLY RESPONSIBLE DUE TO MENTAL DISORDER (NCRMD)

Principle**doesn’t work to negate AR or MR, it goes to show not criminally responsible ex schizophrenia

S2 CC: lists definitions in CC - “mental disorder” is disease of the mind; “unfit to stand trial”

S16(1) CC: substantive defence- have to prove suffering from disease of the mind (Cooper)

o incapable of appreciating nature and quality (Cooper)o incapable of knowing wrong ‘morally’ (Chaulk)

S16(2) CC: presumption A is sane unless shown on BOP

Presumption of Sanity (M’Naghten, codified in s16(2) and(3))a. Presumption of sanity and reverse onus provisions in s16 violated s11(d) but saved under

s1 (Chaulk SCC 1990 – majority)a. Only Wilson J dissented says not saved under s1 (F agrees with Wilson)

S16(3) CC: burden of proof is on the party that raises the issue

Who can raise mental disorder?a. CL rule allowing Crown to raise against A’s will, violates s7, not saved s1 (Swain)b. Modern rule (Swain SCC)

a. A can raise during trial

b. Crown can raise during trial if its in judge’s opinion A has put his/her mental capacity for criminal intent in issue

c. By either A or Crown after A found guilty of offence by trier of fact before verdict of guilty formally entered (in bifurcated trial)

c. Infrequently litigated (usually both agree not to raise)

Disposition: If succeeds then A dealt with under s672.54a. Historically

a. Pre-1992 CC amendments anyone found unfit to stand trial or NCRMD was automatically confined indefinitely at pleasure of LG (then s542(2))

b. Automatic indefinite confinement provisions under then s542(2) violated s7 and s9 and not saved under s1 b/c no rules of due process, just advice from Patient’s review board (Swain)

b. MODERN LAW – in response to Swain in 1992 leg enacted s672.45-672.54a. S672.45

i. Court holds disposition hearing if A found NCRMDb. S672.54

i. For disposition hearing Considers (1) need to protect public (2) mental condition of A (3) reintegration of A (4) other needs of A

ii. Will impose least onerous and restrictive order from the following three:1. Absolute discharge (if A not significant threat to public safety)2. Conditional discharge3. Order for detention in hospital

c. S672.47i. If A put on conditional release or detained – subsequent decisions about

continuation of dispositions made by independent review board which must follow rules of due process

d. S672.55 – Treatment can only be ordered with the accused’s consente. S671.81-82 right to review every 12 months/upon requestf. Winko argued these new provisions violated s7 and s15; SCC rejected Winko’s claims

i. No automatic indefinite detentionii. Balances fair treatment of NCRMD person and public safetyiii. Involves a hearing and imposition of lease onerous of the 3iv. No review or forced treatment, court and review board decisions appealable

Procedural – Unfit to Stand Trial

If unfit to stand trial – trial is postponed

S2 CC: unfit to stand trial - “unable on account of mental disorder [disease of the mind] to conduct a defence…or instruct counsel to do so, and, in particular, unable on account of mental disorder to

a. understand the nature of the proceedingsb. understand the possible consequences of the proceedingsc. communicate with counsel [this is hard b/c how well do you have to communicate?]

Mental disorder = disease of mind broad definition by courts; rest of the test for fitness is MUCH NARROWER

Test for fitness to stand trial (SCC Whittle 1994)a. “limited cognitive capacity to understand the proceedings and communicate with counsel”b. not necessary A “be capable of making rational decisions beneficial to the accused”c. not necessary A “be capable of exercising analytical reasoning in making a choice to

accept advice of counsel or in coming to a decision that best serves his/her interests”

Rules concerning fitness on Ferguson’s notes pg 2; Sharon’s notes pg 11

STEP 1

DISEASE OF THE MIND – was there a mental disorder?

medical evidence re: insanity is not determinative – “disease of mind” legal term to be defined by courts not medical profession (Simpson ONCA 1977)

Very low threshold Cooper (SCC 1980): any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however,

- self-induced states caused by alcohol or drugs, (Bouchard-L voluntary intoxication, brutal assault during psychotic state after ecstasy pills)

- as well as transitory mental states such as hysteria or concussion (non-insane automatism)

STEP 2 BRANCH 1

“APPRECIATE THE NATURE AND QUALITY” of the act/omission

CL (M’Naghten rules) used the word know, s16 uses word appreciate, which is wider in meaning.

Historical defn of appreciate (Cooper)- wider in meaning the know- involves emotional awareness, this was taken out in Kjeldsen & Abbey

o Kjeldsen: excluded severe psychopathy from scope of insanity defence – required A to know nature of act and its physical consequences

o Psychopaths don’t have empathy, lack emotional controls- as well as intellectual awareness,- of the impact and consequences of an act- and an ability to perceive, estimate and understand the consequences, impact and results of a

physical act

MODERN LAW- “appreciate” only requires A know the nature of his act and its physical

consequences. Emotional component is dispensed with – closing it to psychopaths (Kjeldsen)

- Delusion that renders A incapable of appreciating penal consequences of conduct is not included within this test (Abbey)

o Only need to appreciate physical consequences essential to offence

NOTE – attempts at expansion- OCA tried to expand it again (Kirby, Swain)- QCA tried to expand it, but SCC limited it. SCC found insanity under Branch 2 (Landry)

STEP 2 BRANCH 2

“WRONG”, knowing it was wrong

NB: psychotics will generally fall here

Defn of Wrong (Chaulk & Morrissette 1990 SCC)- “morally wrong in the circumstances according to the moral standards of society” and not

simply “legally wrong”o A is insane “if he or she is incapable of understanding that the act is wrong

according to the ordinary moral standards of reasonable members of society”o Must have RATIONAL understanding of wrong (Oomen)

“the crux of the inquiry if whether A lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not”

**ppl who make rational choices to do wrong deserve punishment

Criticisms of s16 (Insanity Test)

- based solely on cognitive impairment (ability to reason, understand) due to disease of the mind

o does not include volitional impairment (ability to control behaviour) due to disease of mind

- irresistible impulse due to mental disorder not incuded within s16 (Borg)- current test is inadequate (immoral) since it allows persons who lack the capacity to control

their behaviour due to mental illness to be convicted and punished- ***NCMRD covers capacity to reason BUT not capacity to CHOOSE\

No MR due to mental disorder short of insanity?- some suggest evidence of mental disorder should be considered re: whether the crown

has proven MR BRD

AUTOMATISM

General Principle *lack of voluntariness negates AR this is why voluntariness not consciousness is key element (Stone)

CL defence (not codified), authorized under s8(3) of CC

BURDEN: A presumed to have acted voluntarily, has burden to prove automatism on BOP (Stone)

[Automatism first described as: unconscious, involuntary behaviour, the state of a person who, though capable of action, is not conscious of what he is doing. It means an unconscious, involuntary act, where the mind does not know what is being done (Rabey adopting R v K)]

MODERN LAW- “a state of impaired consciousness in which an individual, though capable of action, has no

voluntary control over that action” (Stone)

DISPENSATION: acquittal (issue: should this be qualified, like NCRMD)

TEST In determining whether insane or non-insane, apply holistically 3 factors:a. Stage 1: Internal Cause Factor (Rabey - rock)

a. Internal, insane automatism/mental disorder1.) Rabey: psychological blow arising out of ordinary stresses and

disappointments of life caused by internal psychological weakness1. Psychological blows normally disease of the mind unless extreme2. Stone: presumption automatism result of mental disorder

b. External, non-insane – can rely on automatism1.) Rabey: suggested that is psychological blow arose from extraordinary

even that may cause an “average, normal person” to go into shock/disassociation, then the psychological blow will be classified as an ‘external cause’ and not a disease of the mind

1. i.e. A goes into dissociative state after seeing loved one murdered2. Graveline: even though blow wasn’t that big, within scope of

cumulative psychological blows of battered spuse seems to suggest big enough for automatism defence

b. Stage 2: Continuing Danger Test (Parks - inlaws)

a. Dickson dissent in Rabey, picked up in Parks – internal/external isn’t that useful in many cases, better to look at transient/persistent in determining whether insane

b. Pragmatic test – whether A is a continuing danger (offence likely to reoccur). If yes insane; if no automatism

1.) This is how Parks was found non-insane automatismc. Stage 3: Holistic approach with Policy Concerns (Stone – SCC seems to be severely

limiting defence of automatism; drive with wife)a. Fear of fabrication (tighten test)b. Public disillusionment by outright acquittal (public disillusioned with automatism in

some cases; F thinks this is dangerous)c. If verdict of acquittal (automatism) doesn’t allow for subsequent monitoring/control

(NCRMD)

*Gerry dislikes policy concerns esp 3rd one b/c should maybe instead make it more like NCRMD

Factors to apply in assessing a claim of automatism, no single factor determinative, not closed (Stone):1.) severity of triggering stimulus2.) corroborating evidence of bystanders3.) corroboration medical history of automatism like dissociative states4.) presence/absence of motive5.) relationship btwn trigger of automatism and victim of violence

Sleep Walking This is unsettled about whether it is mental disorder or automatism

Pars: non-insane automatismStone: very rare that automatism is not caused by disease of the mind, strong presumption that sleep walking is disease of the mind this was not a sleepwalking case though

PROVOCATION

Codified? S232 CC Partial Defence- only a defence to murder (not any other offence – not even attempted murder) Campbell- if it is proven, effect = murder reduced to manslaughter (s232(1) NOT acquittal)

o Manslaughter has huge sentencing range from 0-lifeo Murder has compulsory mandatory minimum 10 years

Principle Once evidence discloses air of reality, onus on Crown to disprove it BRD

3 main elements set out in 232(2)1. Act/Insult2. Deprivation of Control (objective ordinary person standard – can’t be ordinary person against Charter,

can read ordinary person subjective ie. race)3. Sudden/No chance to Cool (subjective test)

ASIDE – note that since often intimate partner violence, victim deceased and usually lacks other witnessesRationale, Context and Criticisms Rationale: law recognizes some leniency for human frailty (read: male frailty!) of losing one’s temper and

reacting violently to certain forms of sudden provocation.

Context - consider role of gender, race and sexual orientation in murder- Murder is male-dominated offence (both as offenders & victims)- 98% of female murder victims were killed by men, vast majority of whom they knew intimately

Critics of Provocation- law was designed by men, for men and usually against men – with male model of stranger to

stranger violence in mind during context of law very difficult to apply to today reality in a gender neutral way

- motivation for males killing intimate females usually ‘proprietary control, sexual ownership’- accepts male values and emotional patterns concerning use of violence to lash out (or

discipline) females- privileges emotion of anger but not compassion (Indian penal code recognizes

compassion) or love (mercy killings) or self-preservation (Necessity/duress)- involves ‘victim blaming’ shifting focus from A’s conduct to victim’s conduct

o rather can controlling his emotions “reasonable man” can be provoked into murder by insubordinate behaviour (infidelity, bad housekeeping, withdrawal of sexual services, nagging)

o law provides a legitimation for men to behave violently in face of insubordination or marriage breakdown

o **if it can be proven that V was unrespectful, unfaithful, unconventional or negligent

in wifely duties then procovation usually accepted- requirement “sudden” =male model of provocation; obstacle to women who long term

abuseo NOTE: jealously seldom motive for women, intimate homicides usually in self-

defence to beatings- Jeremy Horder on gender bias embedded in provocation subjective test

o Battered women who do not lose their self-control immediately prior to killing of the batterer struggle to plead provocation

o After long term abuse it appears to be a calculated decision to kill not given benefit of a direction to jury on issue of provocation b/c don’t appear or claim to be mentally abnormal

o If woman does lose it suddently before killing then can put provocation to jury or if can find doctor to testify re: diminished responsibility

- provocation should be abolished as a defence b/c it ‘accepts, bolsters, or even promotes’ male patterns of violence against women and gays, contributing to continuing discrimination and inequality these groups face

o Horder says abolish it!o Abolish it and accept it as mitigating factor in sentencing (NZ, Tasmania)

- make changes to provocationo Laurie J Taylor: broadening provisions to include long-term physical abuse and

expanding notions of ‘heat of passion’ to include protracted fearo Brenda Bakers considers Cumulative provocation UK courts o Brenda Baker considers new provision in Australia where time intervals btwm

prpvoking event and eventual killing are permittedo Abolish mandatory minimum for murder and still call it murder and consider

mitigating circumstances for sentencingMoving Forward

- Fed/Prov/Territorial Ministers of Justice set up working group to review reported cases of provocation raised as a defence

o Stats not super accurate b/c some cases not reportedo Startling trends: males killing intimate females & males killing males (alleged

homosexual advances) = 75% of caseso 1 of 7 males who claimed provocation succeeded wrt killing intimate females

- 1999 DOJ released Consultation Paper re: pros and cons of reforming provocation- 2001 Justice Minister announced would not proceed with any reforms b/c:

o lack of agreement on any particular reform option by those consultedo most groups consulted felt defence was legitimate in limited circumstances

STEP 1 WRONGFUL ACT/INSULT

Defn of insult: “injuriously contemptuous speech or behaviour, scornful utterance or action intended to would self-respect; an affront; an indignity” (Thibert SCC 1996) broad defn

SCC Tran: entering new relationship is not a wrongful actNOTE – not provocation if victim had legal right to do the act (i.e. execute lawful warrant) (s232(3))

SCC Thibert: new bf saying come on shoot me; although not prohibited by law to be insulting to A could be found by jury to be insulting behaviour

NOTE – not provocation if A incited V in order to give A an excuse to cause harm (s232(3))STEP 2 DEPRIVATION OF CONTROL

Test: whether an ordinary person may have lost the power of self-control under such provocative circumstances (Carpenter ONCA 1993) don’t have to lash out exactly the same way A did BUT need to have lost power of self-control- what might make you lose control? (male sexual inadequacies – Hill, Camplin)

- Hill: ordinary or reasonable person has normal temperament and a level of self-control, and is not exceptionally excitable, pugnacious or in a state of drunkenness

o only relevant general characteristics that relate to gravity of wrongful act or insult will be considered (i.e.gender is important if gender slur, gender is irrelevant if racial insult) BUT while certain attributes like age or sex may be attributed to ordinary person, trial judge do es not have to

tell jury what specific attributes to ascribe to ordinary person (F has issue with this!)

Ordinary Person test has evolved: leading cases meaning of ordinary person today Hill, Thibert, Tran1.) GENERAL: Bedder (HL strict), Camplin (HL relaxed), Hill (SCC adopt Camplin)2.) ETHNIC BACKGROUND: Ly (no), Nahar (for gravity of wrong, not self-control), Humaid (critiques Nahar -

ordinary person cant be fixed with beliefs irreconcilable with fundamental Canadian values), Tran (favours Humaid)

MODERN Ordinary Person Test (Thibert SCC 1996)a. same age and sex (Thibert)b. share with A relevant factors that would give act/insult “special significance” (Thibert) (not

mandatory for trial judge to articulate specific attributes to jury, Hill)a. ethnic background?

i. Nahar: yes to assess GRAVITY of wrongful act to person from same culture; not relevant to degree of self-control

ii. Tran (SCC 2010): ordinary person must be informed by fundamental Canadian values (i.e. ascribe race if racial slur; don’t ascribe homophobia – no space for adultery as property invasion or honour killings)

c. jury should consider background relationship btwn D and A, including earlier insults (Thibert)a. context is important (Tran) – ask how ordinary person might react in relevant context

STEP 3 SUDDEN/NO CHANCE TO COOL

“strikes upon a mind unprepared for it”; “takes the understanding by surprise” (Tran)

Friesen: not sudden; no time estimate btwn alleged sexual assault and A’s retaliation but at least several minutes, perhaps longer

SELF-DEFENCE

Codified? YES!

New provision (came into force March 11): s34 very general statement that you can defend self when reasonable to do so

- what new provision will mean is unanswered and will depend on how much court chooses to follow previous case law

Old provisions (now abolished): CC s34-37- BUT b/c of principle of retroactivity, possible the law will allow any offence committed before

March 11 to rely on old provisions if it is for their benefit

NOTE – no obligation to retreat or flee from one’s home before relying on self-defence (Jack, Irwin, Lavalee)

Summary of Old Provisions

S34(1): unprovoked assaults for less serious nature (no more force than necessary; depends on individual’s ability)34(2): applies whether provoked or not; can use deadly force if fear for own life and RG no other alternatives – under s34(2)(b) not essential you have to retreat35: become irrelevant after McIntosh b/c could use s34(2); obligated to retreat if provoked s36: provocation & self-defences37: very general “gap filler”; allows for defence of person under your protection court reas persons under protection broader to any 3rd party who needs help

ISSUES:Excessive Force

- S34(1) and s37: proportionate force requirement, “no more force than necessary”o Reasonable person testo If mistaken about force needed that is ok if mistake is reasonable (Kong 2006)

- S34(2) and s34 (more subjective): allows deadly force is:o Force can be more than actually necessary if A reasonably believed it was necessary

(apprehends and no other way to protect self) (Baxter)- If used more force than justified under s34-37 THEN liable for excess force (CC s26)

Retreat- S35 – duty on intial aggressor to retreat- S34-37 no retreat requirement (but retreat might support reasonableness of defence Malott, Proulx,

Druken, Cinous)o Failure to retreat is a consideration in self-dfene under s34(2) rather than an absolute

imperative (Deegan)- Don’t have to retreat from one’s home (Jack, Irwin, Lavallee)

Intoxication- can’t plead self-defence if drunk b/c it is an objective test and reasonable person is sober person- BUT intoxicated person can rely on self-defence if their beliefs are reasonable (Reilly)- Subjective factors, mental impairment- Diminished intillegence of A should be taken into account in applying 34(2) to decide if A’s

apprehensions & beliefs were reasonable- Court open to modified test – A’s background, experience, some characteristics- Ex. Asperger;s taken into account re: reasonable apprehension of D/GBH (Kagan)

Imminent?- Court historically read in requirement of imminency, BUT not actually present and found it not formally

required (but perhaps useful) in Lavealee (cited in Petel)

- It is relevant factor but not a requirement (but in Lavalee Bastarache says relating requirement of imminency so its confusing)

- Cinous (immenence and alternatives): SCC held not going to take into account criminal subculture as context for beliefs

New Provision New provision 34(1): 3 requirements for self-defencea. Believe on reasonable grounds force is being applied or threatened to you or any other

personb. Action taken is in order to protect selfc. Act committed has to be reasonable in the circumstances***

New Provision 34(2): in determining what is reasonable, including but not limited to 9 circumstances:a. Nature of force or threatb. Extent to which force was imminent, whether other means available to respond

a. How important is imminence? Might look to previous case law, not surec. Person’s role in incident

a. Is this into of provocation? Not sured. Whether any party used or threaten to use a weapone. Size, age and physical capabilities of partiesf. Nature, duration and history of any relationship btwn parties (inc. any prior use or threat of

force & nature of it)a. F &f.1 bring in battered spouse, could it bring in other relationships? Not sure,

probably unlikely but unclearf.1 Any history of interaction or communication btwn partiesg. Nature and proportionality of response to use/threat of force

a. How relevant is proportionality?h. Whether act was in response to use or threat of force person knew was lawful

**standard simple BUT huge degree of uncertainty and discretion on case by case basis- discretion allows hidden biases to remain hidden- no specific test for each circumstance nor any indication of how factors should be weighted

New v Old Most important difference = single standard of reasonableness, s34 not limited to assault-based offences

Maybe new law is broad enough to cover Ryan (Rayn – she hired hitman and rather then sending back to trial, court issued a stay in an unusual move BUT giving stay doesn’t give her a defence)

Self-Defence & Domestic Violence

Progression of Law- Prior to Lavallee

o Should have left house; had other optionso Consider reasonable spouse NOT reasonable battered spouse

- Lavalleeo SCC introduced battered spouse syndrome as context for interpreting

reasonablenesso Must look at psychology of battered spouse re: reasonableness of A’s belief in

apprehension of deatho What would a reasonable battered spouse have perceived in the same situation

- Post-Lavalleeo Lavellaee potentially expands the law somewhat BUT doesn’t seem to be appliedo WHY?

Lived reality of battered spouse is heightened sense of when attack is going to occur; see other triggers

Feminist Critique: pathologized battered spouse into weak women; failure to recognize social factors (housing, child care, income)

severely limit opportunities to leave treat battered women as “abnormal” for not leaving

Malott (L’Heureux-Dube – cautions over medicalization) New stereotype of battered women

Have to portray as helpless victim according to stereotype rather than resilient woman to get self-dfence claims decided

o Charlebois: SCC wouldn’t extend relaxation of battered spouse to longterm friendship of constant assaults