Criminal Law Web

Chapter 13. Justification

A.        Concepts and Types of Defence

1. Concepts A. procedural - offense vs. defence - burden of proof? B. substantive - element/prerequisite of liability (vs. element of offense) 2. Types A. “Defences” of Element-Negation (criminal?) (i) absence of “actus reus” (a) conduct - actness - voluntariness (b) attendant circumstance (c) result (ii) absence of “mens rea” - awareness - of risk - of fact B. Justification (unlawful?) - precludes civil liability, accomplice liability C. Excuse (responsible?) - does not preclude civil liability, accomplice liability

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William Blackstone, Commentaries on the Laws of England, vol. 4 (1769)

[H]omicide, or the killing of any human creature, is of three kinds: justifiable, excusable, and felonious. The first has no share of guilt at all; the second very little; but the third is the highest crime against the law of nature, that man is capable of committing.
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In ... instances of justifiable homicide, ... the slayer is in no kind of fault whatsoever, not even in the minutest degree.... But that is not quite the case in excusable homicide, the very name whereof imports some fault, some error, some omission; so trivial however, that the law excuses it from the guilt of felony....

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Criminal Code Bill Commission, Report, p. 11 (1879)

There is a difference in the language used in the sections in this Part which probably requires explanation. Sometimes it is said that the person doing an act is "justified" in so doing under particular circumstances. The effect of an enactment using that word would be not only to relieve him from punishment, but also to afford him a statuable defence against a civil action for what he had done. Sometimes it is said that the person doing an act is "protected from criminal responsibility" under particular circumstances. The effect of an enactment using this language is to relieve him from punishment, but to leave his liability to an action for damages to be determined on other grounds, the enactment neither giving a defence to such an action where it does not exist, nor taking it away where it does.

 

R. v. Perka
Supreme Court of Canada
(1984) 14 C.C.C. (3d) 385; ([1984] 2 S.C.R. 232 (Dickson, J.)

Criminal theory recognizes a distinction between “justifications” and “excuses”. A “justification” challenges the wrongfulness of an action which technically constitutes a crime. The police officer who shoots the hostage-taker, the innocent object of an assault who uses force to defend himself against his assailant, the good Samaritan who commandeers a car and breaks the speed laws to rush an accident victim to the hospital, these are all actors whose actions we consider rightful, not wrongful. For such actions people are often praised, as motivated by some great or noble object. The concept of punishment often seems incompatible with the social approval bestowed on the doer.

In contrast, an “excuse” concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not to be attributed to the actor. The perpetrator who is incapable, owing to a disease of the mind, of appreciating the nature and consequences of his acts, the person who labours under a mistake of fact, the drunkard, the sleepwalker: these are all actors of whose “criminal” actions we disapprove intensely, but whom, in appropriate circumstances, our law will not punish.

Packer, The Limits of the Criminal Sanction (1968), expresses the distinction thus at p. 113:

. . . conduct that we choose not to treat as criminal is “justifiable” if our reason for treating it as noncriminal is predominantly that it is conduct that we applaud, or at least do not actively seek to discourage: conduct is “excusable” If we deplore it but for some extrinsic reason conclude that it is not politic to punish it.

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Wolfgang Naucke, “An Insider’s Perspective on the Significance of the German Criminal Law Theory’s General System for Analyzing Criminal Acts,”
1984 BYU L. Rev. 305

b. Wrongfulness [or absence of justification]. Rechtswidrigkeit, or wrongfulness, embraces all the statutory and extra statutory general grounds for holding that conduct which is violative of the definition may still be found to be justified, thereby escaping punishment. Self-defense is a classic justification that negates the wrongfulness of an act. The right to free speech [is another, more controversial, example]. But it is in any event an argument that must be legally analyzed under the heading of wrongfulness. The category of wrongfulness in the general analytical system not only proves the proper place for the discussion of such justifications but also provokes the discussion of doubtful justification.

c. Culpability [or absence of excuse]. The first task of the element of Schuld or culpability in the general analytical system is to secure the status of culpability as an indispensable prerequisite to punishment. A result of the culpability requirement is that the lawyer must carefully consider possible grounds for excusing the actor, even though his conduct is violative of the definition of the crime and is wrongful. Insanity and duress are illuminating examples of the doctrines that serve to negate culpability in this manner. A party availing himself of either of these defenses typically claims that while he has engaged in conduct specified in the definition of some crime, and though he has done so without justification, he cannot fairly be held responsible for what he did.

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LRCC ch. 3, comment

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N.Y. Penal Law § 25.00 Defenses; burden of proof

1. When a "defense," other than an "affirmative defense," defined by statute is raised at a trial, the people have the burden of disproving such defense beyond a reasonable doubt.

2. When a defense declared by statute to be an "affirmative defense" is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.

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Patterson v. New York
Supreme Court of the United States
432 U.S. 197 (1977)

MR. JUSTICE WHITE delivered the opinion of the Court.
After a brief and unstable marriage, the appellant, Gordon Patterson, Jr., became estranged from his wife, Roberta. Roberta resumed an association with John Northrup, a neighbor to whom she had been engaged prior to her marriage to appellant. On December 27, 1970, Patterson borrowed a rifle from an acquaintance and went to the residence of his father in law. There, he observed his wife through a window in a state of semiundress in the presence of John Northrup. He entered the house and killed Northrup by shooting him twice in the head.

[Patterson was convicted of second degree murder, which in New York has two elements: (1) "intent to cause the death of another person"; and (2) "caus(ing) the death of such person or of a third person." N.Y. Penal Law ' 125.25 (McKinney 1975). A person accused of murder may raise an affirmative defense that he "acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse." If successful, this defense reduces the defendant's liability to manslaughter.]

We cannot conclude that Patterson's conviction under the New York law deprived him of due process of law....

[The affirmative defense of] extreme emotional disturbance ..., which the [New York] Court of Appeals described as permitting "the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them," does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion....

This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard.

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R. v. Whyte
Supreme Court of Canada
[1988] 2 S.C.R. 3

[T]he distinction between elements of the offence and other aspects of the charge is irrelevant to the s.11(d) inquiry. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence.

The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. The trial of an accused in a criminal matter cannot be divided neatly into stages, with the onus of proof on the accused at an intermediate stage and the ultimate onus on the Crown.

 

B.        Protection of Persons Administering and Enforcing the Law

 

R. v. Brennan
Ontario Supreme Court – Court of Appeal
[1989] O.J. No. 2054

The judgment of the Court was delivered by
CATZMAN J.A.:—

The appeal

The appellant, a police officer, was convicted at trial before a justice of the peace of failing to stop at a stop sign contrary to s. 116(a) of the Highway Traffic Act, R.S.O. 1980, c. 198 ("the Act"). An appeal from conviction was dismissed by a provincial court judge. With leave, the appellant now appeals to this court.

The facts

The appellant is a constable with the Niagara Regional Police Force. On the day in question, he was on duty in uniform and, with another officer, was on patrol in a marked police cruiser in Niagara Falls. The appellant recognized the licence plate of a passing car as the object of a police alert for a stolen vehicle. He pursued the car and directed the driver to pull over to the side of the road. His partner got out of the police cruiser and was approaching the stolen car on foot when its driver suddenly accelerated and sped away. The appellant, driving the police cruiser, gave pursuit.

A lengthy chase ensued, at speeds in excess of one hundred and fifty kilometres per hour, through the city, onto Highway 420, and then onto the Queen Elizabeth Way. The stolen car left the Queen Elizabeth Way at the exit ramp to Mountain Road. The exit ramp formed a "T" intersection with Mountain Road. A regulation stop sign stood at the end of the exit ramp. The stolen car went into the intersection without stopping at the stop sign. It cut off a third car, which swerved to avoid collision and ended up, undamaged, on an earth embankment beside the roadway. The appellant tried to stop for the stop sign, but the cruiser's brakes "grabbed" and it slid on gravel through the intersection without stopping, struck a street sign and came to rest in a ditch. The appellant flagged down a passing Ontario Provincial Police vehicle and continued his pursuit. Eventually, the stolen car was stopped and its driver apprehended.

In the fullness of time, the appellant received a police commendation for his efforts in apprehending the car thief. He also received a certificate of offence charging him with failing to stop at the stop sign on the Mountain Road exit ramp. He was convicted at trial and fined the sum of $53.75. His conviction was affirmed on appeal, but a suspended sentence was substituted for the fine. The appeal to this court is in respect of the conviction only.

The issues

Three issues were argued on the appeal:

  1. whether the offence of failing to stop created by s. 116(a) of the Act is properly classified as an offence of strict liability or as an offence of absolute liability;
  2. whether the appellant's failure to stop at the stop sign, while acting in the execution of his duty, can be justified by reference to s. 25(1) of the Criminal Code ("the Code"); and
  3. whether the appellant's failure to stop at the stop sign can be justified at common law. …

Classification of the offence


While I incline to share the view … that the offence of failing to stop at a stop sign falls into the category of absolute liability offences, I do not consider it necessary to decide that question in the present case, in the light of the position taken by … appellant. It was his submission that, whatever the classification of the offence with which the appellant was charged, the Act must be "read down" and is inapplicable to a police officer in the execution of his duty because he enjoys immunity from prosecution for such an offence by virtue of s. 25(1) of the Code. Accordingly, I turn to that submission.

Section 25(1) of the Code

Section 25 of the Code provides:

25.(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law a) as a private person,
b) as a peace officer or public officer,
c) in aid of a peace officer or public officer, or
d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.
(3) Subject to subsection (4), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless he believes on reasonable grounds that it is necessary for the purpose of preserving himself or any one under his protection from death or grievous bodily harm.
(4) A peace officer who is proceeding lawfully to arrest, with or without warrant, any person for an offence for which that person may be arrested without warrant, and every one lawfully assisting the peace officer, is justified, if the person to be arrested takes flight to avoid arrest, in using as much force as is necessary to prevent the escape by flight, unless the escape can be prevented by reasonable means in a less violent manner.


The Supreme Court of Canada had occasion to consider the scope of s. 25(1) in Eccles v. Bourque et al. (1974), 19 C.C.C. (2d) 129. A civil case …, Eccles v. Bourque involved an action against three police officers for damages for trespass alleged to have been committed when, without warrant, they entered the plaintiff's apartment in search of a suspected fugitive. All nine members of the court affirmed the decision of the British Columbia Court of Appeal dismissing the plaintiff's action. Five judges (Martland J., with whom Ritchie, Pigeon, Beetz and de Grandpre JJ. concurred) refrained from expressing any view with respect to the application of s. 25(1). Four judges (Dickson J., with whom Laskin C.J.C., Judson and Spence JJ. concurred) specifically addressed that question. After setting out s. 25(1), Dickson J. said, at pp. 130-131:

It is the submission of counsel for the respondents that a person who is by s. 450 authorized to make an arrest is, by s. 25, authorized by law to commit a trespass with or without force in the accomplishment of that arrest, provided he acts on reasonable and probable grounds. I cannot agree with this submission. Section 25 does not have such amplitude. The section merely affords justification to a person for doing what he is required or authorized by law to do in the administration or enforcement of the law, if he acts on reasonable and probable grounds, and for using necessary force for that purpose. The question which must be answered in this case, then, is whether the respondents were required or authorized by law to commit a trespass; and not, as their counsel contends, whether they were required or authorized to make an arrest. …

Dickson J. returned to the subject of the scope of s. 25(1) in Reference re an Application for an Authorization (1984), 15 C.C.C. (3d) 466 (the "Wiretap Reference"). The majority in that case and in the companion case of Lyons et al. v. The Queen (1984), 15 C.C.C. (3d) 417, held that an authorization to install a listening device on private premises by necessary implication authorized the entry into that place as well as the installation of the device and that, despite the fact that the entry constituted a trespass, the interception was "lawfully made" within the meaning of s. 178.16(1)(a) {now s. 189(1)(a), repealed} of the Code. Although Estey J., who delivered the judgment of the majority in both cases, made passing reference to s. 25(1) in Lyons (at p. 462), he did not engage in any consideration of the scope of that section. Dickson J. (with whom Chouinard J. concurred), dissenting in both cases, did canvass that question in these words (Wiretap Reference, at pp. 480-81):

The next submission made by the appellants is that entry to effect an authorization to intercept oral communications is allowed by s. 25(1) of the Criminal Code. Under this view of the matter, s. 25(1) permits such entry because it is required to accomplish an authorized action of the police. . . . .

The Alberta Court of Appeal refused to give s. 25(1) the breadth urged by the appellants. Applying my reasoning in Eccles v. Bourque et al. (1974), 19 C.C.C. (2d) 29, 50 D.L.R. (3) 753, [1975] 2 S.C.R. 739, Justice Stevenson concluded that s. 25(1) "... affords a protection for required or authorized acts and the use of force in respect thereof but it begs the question here which is whether someone acting under an 'authorization' is required or authorized by law to trespass" (at p. 32 C.C.C., p. 632 D.L.R.).

In Eccles, it was contended that s. 25(1) of the Criminal Code authorized trespass by the police in order to affect an arrest. I responded to this argument in the following terms (at p. 131 C.C.C., p. 755 D.L.R., p. 742 S.C.R.):

Section 25 does not have such amplitude. The section merely affords justification to a person for doing what he is required or authorized by law to do in the administration or enforcement of the law, if he acts on reasonable and probably grounds, and for using necessary force for that purpose. The question which must be answered in this case, then, is whether the respondents were required or authorized by law to commit a trespass; and not, as their counsel contends, whether they were required or authorized to make an arrest. If they were authorized by law to-commit a trespass, the authority for it must be found in the common law for there is nothing in the Criminal Code.

I maintain this view. Section 25(1) does not augment the powers of the police beyond those otherwise given to them by the Criminal Code or at common law. [Emphasis in original.]

On this state of the authorities in this country's highest court, I consider it open to this court to adopt, and appropriate that it should adopt, the view of Dickson J. as an accurate statement of the law respecting the scope of s. 25(1). Adapting his expression of the relevant inquiry to the facts of the present case, the question to be asked is not whether the appellant was required or authorized by law to apprehend the driver of the stolen car but rather whether the appellant was required or authorized by law to drive through the stop sign without stopping. No statutory provision was cited in support of an affirmative answer to that question, and I share the view … that such conduct is required or authorized neither by legislative enactment nor, as appears below, at common law.

The constable at common law

Mr. Brady further submitted that the appellant's failure to stop at the stop sign could be justified at common law because he was exercising the powers and privileges of a common law constable, all of which are specifically preserved by s. 57 of the Police Act, R.S.O. 1980, c. 381. Section 57 provides:

57. The members of police forces appointed under Part II, except assistants and civilian employees, are charged with the duty of preserving the peace, preventing robberies and other crimes and offences, including offences against the by-laws of the municipality, and apprehending offenders, and commencing proceedings before the proper tribunal, and prosecuting and aiding in the prosecution of offenders, and have generally all the powers and privileges and are liable to all the duties and responsibilities that belong to constables. [Emphasis added.]

The suggestion that one of the common law privileges of a constable was the right to break the law without incurring criminal liability where such a breach was reasonably necessary for the protection of life or property was thoroughly canvassed and rejected in R. v. Walker (1979), 48 C.C.C. (2d) 126, by Zalev Co. Ct. J., who concluded, at p. 142:

I find no support in any authority for the view that one of the common law privileges of a constable redounding to the benefit of a municipal police officer under s. [57] of the Police Act was an immunity from prosecution wider than that set out in s. 25 of the Criminal Code.

I respectfully agree with his analysis and with his conclusion.

In any event, I consider the contrary argument to be foreclosed by reason of the specific inclusion in the Act of provisions exempting emergency vehicles and police vehicles in two instances only: speeding (in s. 109(12)) and entering an intersection against a red light following a full stop (s. 124(6)). In my view, "the powers and privileges ... that belong to constables" at common law cannot be invoked to enlarge the exemptions from the rules of the road beyond those which the Legislature has seen fit specifically to create: cf. Glanville Williams, Criminal Law: The General Part, 2nd ed. (1961), p. 795.

Disposition

For the foregoing reasons, I would dismiss the appeal and affirm the appellant’s conviction.

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LRCC § 3(13)

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MPC §§ 3.03, 3.07

C.        Persons in Authority

 

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
Supreme Court of Canada
[2004] 1 S.C.R. 76

The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ. was delivered by
1     McLACHLIN C.J.:—The issue in this case is the constitutionality of Parliament's decision to carve out a sphere within which children's parents and teachers may use minor corrective force in some circumstances without facing criminal sanction. The assault provision of the Criminal Code, R.S.C. 1985, c. C-46, s. 265, prohibits intentional, non-consensual application of force to another. Section 43 of the Criminal Code excludes from this crime reasonable physical correction of children by their parents and teachers. It provides:

Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
The Canadian Foundation for Children, Youth and the Law (the "Foundation") seeks a declaration that this exemption from criminal sanction: (1) violates s. 7 of the Canadian Charter of Rights and Freedoms because it fails to give procedural protections to children, does not further the best interests of the child, and is both overbroad and vague; (2) violates s. 12 of the Charter because it constitutes cruel and unusual punishment or treatment; and (3) violates s. 15(1) of the Charter because it denies children the legal protection against assaults that is accorded to adults.

2     The trial judge and the Court of Appeal rejected the Foundation's contentions and refused to issue the declaration requested. Like them, I conclude that the exemption from criminal sanction for corrective force that is "reasonable under the circumstances" does not offend the Charter. I say this, having carefully considered the contrary view of my colleague, Arbour J., that the defence of reasonable correction offered by s. 43 is so vague that it must be struck down as unconstitutional, leaving parents who apply corrective force to children to the mercy of the defences of necessity and "de minimis". I am satisfied that the substantial social consensus on what is reasonable correction, supported by comprehensive and consistent expert evidence on what is reasonable presented in this appeal, gives clear content to s. 43. I am also satisfied, with due respect to contrary views, that exempting parents and teachers from criminal sanction for reasonable correction does not violate children's equality rights. In the end, I am satisfied that this section provides a workable, constitutional standard that protects both children and parents.

I. Does Section 43 of the Criminal Code Offend Section 7 of the Charter?

3     Section 7 of the Charter is breached by state action depriving someone of life, liberty, or security of the person contrary to a principle of fundamental justice. The burden is on the applicant to prove both the deprivation and the breach of fundamental justice. In this case the Crown concedes that s. 43 adversely affects children’s security of the person, fulfilling the first requirement.
4     This leaves the question of whether s. 43 offends a principle of fundamental justice. The Foundation argues that … the principle that criminal legislation must not be vague [has been breached]…

C. Vagueness…

(1) Vagueness

13     The Foundation argues that s. 43 is unconstitutional because first, it does not give sufficient notice as to what conduct is prohibited; and second, it fails to constrain discretion in enforcement. The concept of what is "reasonable under the circumstances" is simply too vague, it is argued, to pass muster as a criminal provision.
14     Applying the legal requirements for precision in a criminal statute to s. 43, I conclude that s. 43, properly construed, is not unduly vague.

(a) The Standard for "Vagueness"

15     A law is unconstitutionally vague if it "does not provide an adequate basis for legal debate" and "analysis"; "does not sufficiently delineate any area of risk"; or "is not intelligible". The law must offer a "grasp to the judiciary": R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at pp. 639-40. Certainty is not required. As Gonthier J. pointed out in Nova Scotia Pharmaceutical, supra, at pp. 638-39,

conduct is guided by approximation. The process of approximation sometimes results in quite a narrow set of options, sometimes in a broader one. Legal dispositions therefore delineate a risk zone, and cannot hope to do more, unless they are directed at individual instances. [Emphasis added.]
16     A law must set an intelligible standard both for the citizens it governs and the officials who must enforce it. The two are interconnected. A vague law prevents the citizen from realizing when he or she is entering an area of risk for criminal sanction. It similarly makes it difficult for law enforcement officers and judges to determine whether a crime has been committed. This invokes the further concern of putting too much discretion in the hands of law enforcement officials, and violates the precept that individuals should be governed by the rule of law, not the rule of persons. The doctrine of vagueness is directed generally at the evil of leaving "basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application": Grayned v. City of Rockford, 408 U.S. 104 (1972), at p. 109.
17     Ad hoc discretionary decision making must be distinguished from appropriate judicial interpretation. Judicial decisions may properly add precision to a statute. Legislators can never foresee all the situations that may arise, and if they did, could not practically set them all out. It is thus in the nature of our legal system that areas of uncertainty exist and that judges clarify and augment the law on a case-by-case basis.
18     It follows that s. 43 of the Criminal Code will satisfy the constitutional requirement for precision if it delineates a risk zone for criminal sanction. This achieves the essential task of providing general guidance for citizens and law enforcement officers.

(b) Does Section 43 Delineate a Risk Zone for Criminal Sanction?

19     The purpose of s. 43 is to delineate a sphere of non-criminal conduct within the larger realm of common assault. It must, as we have seen, do this in a way that permits people to know when they are entering a zone of risk of criminal sanction and that avoids ad hoc discretionary decision making by law enforcement officials. People must be able to assess when conduct approaches the boundaries of the sphere that s. 43 provides.
20     To ascertain whether s. 43 meets these requirements, we must consider its words and court decisions interpreting those words. The words of the statute must be considered in context, in their grammatical and ordinary sense, and with a view to the legislative scheme's purpose and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26. Since s. 43 withdraws the protection of the criminal law in certain circumstances, it should be strictly construed: see Ogg-Moss v. The Queen, [1984] 2 S.C.R. 173, at p. 183.
21     Section 43 delineates who may access its sphere with considerable precision. The terms "schoolteacher" and "parent" are clear. The phrase "person standing in the place of a parent" has been held by the courts to indicate an individual who has assumed "all the obligations of parenthood": Ogg-Moss, supra, at p. 190 (emphasis in original). These terms present no difficulty.
22     Section 43 identifies less precisely what conduct falls within its sphere. It defines this conduct in two ways. The first is by the requirement that the force be "by way of correction". The second is by the requirement that the force be "reasonable under the circumstances". The question is whether, taken together and construed in accordance with governing principles, these phrases provide sufficient precision to delineate the zone of risk and avoid discretionary law enforcement.
23     I turn first to the requirement that the force be "by way of correction". These words, considered in conjunction with the cases, yield two limitations on the content of the protected sphere of conduct.
24     First, the person applying the force must have intended it to be for educative or corrective purposes: Ogg-Moss, supra, at p. 193. Accordingly, s. 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour. The purpose of the force must always be the education or discipline of the child: Ogg-Moss, supra, at p. 193.
25     Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction. Force against children under two cannot be corrective, since on the evidence they are incapable of understanding why they are hit (trial decision (2000), 49 O.R. (3d) 662, at para. 17). A child may also be incapable of learning from the application of force because of disability or some other contextual factor. In these cases, force will not be "corrective" and will not fall within the sphere of immunity provided by s. 43.
26     The second requirement of s. 43 is that the force be "reasonable under the circumstances". The Foundation argues that this term fails to sufficiently delineate the area of risk and constitutes an invitation to discretionary ad hoc law enforcement. It argues that police officers, prosecutors and judges too often assess the reasonableness of corrective force by reference to their personal experiences and beliefs, rendering enforcement of s. 43 arbitrary and subjective. In support, it points to the decision of the Manitoba Court of Appeal in R. v. K. (M.) (1992), 74 C.C.C. (3d) 108, in which, at p. 109, O'Sullivan J.A. stated that "[t]he discipline administered to the boy in question in these proceedings [a kick to the rear] was mild indeed compared to the discipline I received in my home".
27     Against this argument, the law has long used reasonableness to delineate areas of risk, without incurring the dangers of vagueness. The law of negligence, which has blossomed in recent decades to govern private actions in nearly all spheres of human activity, is founded upon the presumption that individuals are capable of governing their conduct in accordance with the standard of what is "reasonable". But reasonableness as a guide to conduct is not confined to the law of negligence. The criminal law also relies on it. The Criminal Code expects that police officers will know what constitutes "reasonable grounds" for believing that an offence has been committed, such that an arrest can be made (s. 495); that an individual will know what constitutes "reasonable steps" to obtain consent to sexual contact (s. 273.2(b)); and that surgeons, in order to be exempted from criminal liability, will judge whether performing an operation is "reasonable" in "all the circumstances of the case" (s. 45). These are merely a few examples; the criminal law is thick with the notion of "reasonableness".
28     The reality is that the term "reasonable" gives varying degrees of guidance, depending upon the statutory and factual context. It does not insulate a law against a charge of vagueness. Nor, however, does it automatically mean that a law is void for vagueness. In each case, the question is whether the term, considered in light of principles of statutory interpretation and decided cases, delineates an area of risk and avoids the danger of arbitrary ad hoc law enforcement.
29     Is s. 43's reliance on reasonableness, considered in this way, unconstitutionally vague? Does it indicate what conduct risks criminal sanction and provide a principled basis for enforcement? While the words on their face are broad, a number of implicit limitations add precision.
30     The first limitation arises from the behaviour for which s. 43 provides an exemption, simple non-consensual application of force. Section 43 does not exempt from criminal sanction conduct that causes harm or raises a reasonable prospect of harm. It can be invoked only in cases of non-consensual application of force that results neither in harm nor in the prospect of bodily harm. This limits its operation to the mildest forms of assault. People must know that if their conduct raises an apprehension of bodily harm they cannot rely on s. 43. Similarly, police officers and judges must know that the defence cannot be raised in such circumstances.
31     Within this limited area of application, further precision on what is reasonable under the circumstances may be derived from international treaty obligations. Statutes should be construed to comply with Canada's international obligations: Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 137. Canada's international commitments confirm that physical correction that either harms or degrades a child is unreasonable.

34     Section 43's ambit is further defined by the direction to consider the circumstances under which corrective force is used. National and international precedents have set out factors to be considered. Article 3 of the European Convention on Human Rights, 213 U.N.T.S. 221, forbids inhuman and degrading treatment. The European Court of Human Rights, in determining whether parental treatment of a child was severe enough to fall within the scope of Article 3, held that assessment must take account of "all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim": Eur. Court H.R., A. v. United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699. These factors properly focus on the prospective effect of the corrective force upon the child, as required by s. 43.
35     By contrast, it is improper to retrospectively focus on the gravity of a child's wrongdoing, which invites a punitive rather than corrective focus. "[T]he nature of the offence calling for correction", an additional factor suggested in R. v. Dupperon (1984), 16 C.C.C. (3d) 453 (Sask. C.A.), at p. 460, is thus not a relevant contextual consideration. The focus under s. 43 is on the correction of the child, not on the gravity of the precipitating event. Obviously, force employed in the absence of any behaviour requiring correction by definition cannot be corrective.
36     Determining what is "reasonable under the circumstances" in the case of child discipline is also assisted by social consensus and expert evidence on what constitutes reasonable corrective discipline. The criminal law often uses the concept of reasonableness to accommodate evolving mores and avoid successive "fine-tuning" amendments. It is implicit in this technique that current social consensus on what is reasonable may be considered. It is wrong for caregivers or judges to apply their own subjective notions of what is reasonable; s. 43 demands an objective appraisal based on current learning and consensus. Substantial consensus, particularly when supported by expert evidence, can provide guidance and reduce the danger of arbitrary, subjective decision making.
37     Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue (trial decision, at para. 17). Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.

40     When these considerations are taken together, a solid core of meaning emerges for "reasonable under the circumstances", sufficient to establish a zone in which discipline risks criminal sanction. Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver's frustration, loss of temper or abusive personality, a consistent picture emerges of the area covered by s. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is "reasonable under the circumstances"; the test is objective. The question must be considered in context and in light of all the circumstances of the case. The gravity of the precipitating event is not relevant.
41     The fact that borderline cases may be anticipated is not fatal. As Gonthier J. stated in Nova Scotia Pharmaceutical, supra, at p. 639, "it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective".
42     Section 43 achieves this objective. It sets real boundaries and delineates a risk zone for criminal sanction. The prudent parent or teacher will refrain from conduct that approaches those boundaries, while law enforcement officers and judges will proceed with them in mind. It does not violate the principle of fundamental justice that laws must not be vague or arbitrary.

II. Does Section 43 of the Criminal Code Offend Section 12 of the Charter?

47     Section 12 of the Charter guarantees "the right not to be subjected to any cruel and unusual treatment or punishment". The Foundation argues that s. 43 offends s.12 by authorizing the use of corrective force against children. In order to engage s. 12, the Foundation must show both (a) that s. 43 involves some treatment or punishment by the state (Rodriguez, supra, at pp. 608-9), and (b) that such treatment is "cruel and unusual". These conditions are not met in this case.
48     Section 43 exculpates corrective force by parents or teachers. Corrective force by parents in the family setting is not treatment by the state. Teachers, however, may be employed by the state, raising the question of whether their use of corrective force constitutes "treatment" by the state.
49     It is unnecessary to answer this question since the conduct permitted by s. 43 does not in any event rise to the level of being "cruel and unusual", or "so excessive as to outrage standards of decency": R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072; Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876, at para. 34. Section 43 permits only corrective force that is reasonable. Conduct cannot be at once both reasonable and an outrage to standards of decency. Corrective force that might rise to the level of "cruel and unusual" remains subject to criminal prosecution. …

III.    Does Section 43 of the Criminal Code Offend Section 15 of the Charter?


59     Section 43 … provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. The criminal law will decisively condemn and punish force that harms children, is part of a pattern of abuse, or is simply the angry or frustrated imposition of violence against children; in this way, by decriminalizing only minimal force of transient or trivial impact, s. 43 is sensitive to children's need for a safe environment. But s. 43 also ensures the criminal law will not be used where the force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances. Introducing the criminal law into children's families and educational environments in such circumstances would harm children more than help them. So Parliament has decided not to do so, preferring the approach of educating parents against physical discipline.
60     This decision, far from ignoring the reality of children's lives, is grounded in their lived experience. The criminal law is the most powerful tool at Parliament's disposal. Yet it is a blunt instrument whose power can also be destructive of family and educational relationships. As the Ouimet Report explained:

To designate certain conduct as criminal in an attempt to control anti-social behaviour should be a last step. Criminal law traditionally, and perhaps inherently, has involved the imposition of a sanction. This sanction, whether in the form of arrest, summons, trial, conviction, punishment or publicity is, in the view of the Committee, to be employed only as an unavoidable necessity. Men and women may have their lives, public and private, destroyed; families may be broken up; the state may be put to considerable expense: all these consequences are to be taken into account when determining whether a particular kind of conduct is so obnoxious to social values that it is to be included in the catalogue of crimes. If there is any other course open to society when threatened, then that course is to be preferred. The deliberate infliction of punishment or any other state interference with human freedom is to be justified only where manifest evil would result from failure to interfere. [Emphasis added.]
(Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (1969), at pp. 12-13)
Concluding that s. 43 should not be repealed, the Law Reform Commission of Canada pointed out that repeal "could have unfortunate consequences, consequences worse than those ensuing from retention of the section", and which would "expose the family to the incursion of state law enforcement for every trivial slap or spanking". "[I]s this", it asked, "the sort of society in which we would want to live?" (Law Reform Commission of Canada, Working Paper 38, Assault (1984), at p. 44)

61     The trial judge in this case found that experts on both sides were agreed that only abusive physical conduct should be criminalized and that extending the criminal law to all disciplinary force "would have a negative impact upon families and hinder parental and teacher efforts to nurture children" (trial judge, at para. 17).
62     The reality is that without s. 43, Canada's broad assault law would criminalize force falling far short of what we think of as corporal punishment, like placing an unwilling child in a chair for a five-minute "time-out". The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families — a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process.
63     The Foundation argues that these harms could be effectively avoided by the exercise of prosecutorial discretion. However, as the Foundation asserts in its argument on vagueness, our goal should be the rule of law, not the rule of individual discretion. …
64     The Foundation argues that this is not the original purpose of the law and does not reflect its actual effects. In the Foundation's view, s. 43 was intended, and continues, to promote the view that the use of corrective force against children is not simply permitted for the purposes of the criminal law, but laudable because it is "good for children". In making this argument, the Foundation relies upon s. 43's statement that parents and teachers are "justified" in the use of reasonable corrective force. Considering "justification" in Ogg-Moss, supra, Dickson J. (as he then was) stated that s. 43 exculpates force in the correction of the child "because it considers such an action not a wrongful, but a rightful, one" (p.193 (emphasis in original)). The Foundation submits that as a "justification", s. 43 necessarily identifies praise-worthy conduct.
65     In my view, this position is overstated. We cannot conclude that Parliament intended to endorse using force against children from a single word, without also considering the history and context of the provision. In our first Criminal Code, enacted in 1892 (S.C. 1892, c. 29), Parliament used "lawful" instead of "justified" in the analogous provision:

55. It is lawful for every parent, or person in the place of a parent, schoolmaster or master, to use force by way of correction towards any child, pupil or apprentice under his care, provided that such force is reasonable under the circumstances.

It did so even though the term "justified" appeared in other defences such as the use of force to prevent the commission of a major offence (s. 44) and self-defence (s. 45) — defences that we classically associate with moral approval. So at this time, it is clear that Parliament was not asserting the exempted force was moral or good. It was not until the 1953-54 re-enactment of the Criminal Code (S.C. 1953-54, c. 51) that Parliament replaced "it is lawful" with "justified". We do not know why it did so. We do know that the change was not discussed in Parliament, and that there is no indication that Parliament suddenly felt that the reasonable force in the correction of children now demanded the state's explicit moral approval. Finally, we know that the government has adopted a program designed to educate parents and caregivers on the potentially negative effects of using corporal punishment against children. Viewing s. 43 in light of its history and the larger legislative and policy context, it is difficult to conclude that Parliament intended by using the word "justify" to send the message that using force against children is "right" or "good". The essence of s. 43 is not Parliament's endorsement of the use of force against children; it is the exemption from criminal sanction for their parents and teachers in the course of reasonable correction….

The following are the reasons delivered by
71     BINNIE J. (dissenting in part):— A child is guaranteed "equal protection and equal benefit of the law" by s. 15(1) of the Canadian Charter of Rights and Freedoms. Section 43 of the Criminal Code, R.S.C. 1985, c. C-46, denies children the protection of the criminal law against the infliction of physical "force" that would be a criminal assault if used against an adult. The sole reason for children being placed in this inferior position is that they are children.

5. The Violation of Human Dignity

106     The Court has repeatedly stated that

the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.
(Law, supra, at para. 51, and Gosselin, supra, at para. 20)

The concept of "human dignity" is somewhat elusive, but nevertheless expresses an essential part of the purpose of s. 15(1). It seeks to avoid the mechanical application of the s. 15 analysis to distinctions that do not, appropriately viewed, raise a compelling human rights dimension. This is illustrated, as mentioned earlier, by the Canada Pension Plan cases. The state is required to value each of its citizens equally, but equal consideration of the personal characteristics and strengths of each individual may, in the circumstances of government benefit programs, dictate differential treatment. This is hardly the case here. Few things are more demeaning and disrespectful of fundamental values than to withdraw the full protection of the Criminal Code against deliberate, forcible, unwanted violation of an individual's physical integrity.

107     I agree entirely with the conclusion of the author of a report entitled "Corporal Punishment as a Means of Correcting Children" (November 1998) by the Quebec Commission des droits de la personne et des droits de la jeunesse (at p. 8):

Corporal punishment violates the child's dignity, partly due to the humiliation he or she is likely to feel, but mainly due to the lack of respect inherent in the act.
108     Reference should also be made to the analysis of Peter Newell, a witness for the appellants and the author of Children Are People Too: The Case Against Physical Punishment (1989), who wrote, at pp. 2 and 4:
Childhood, too, is an institution. Society, even in those areas like education which are supposedly for the benefit of children, remains unsympathetic to them. All too often children are treated as objects, with no provision made for hearing their views or recognising them as fellow human beings. Children — seen but not heard — face the double jeopardy of discrimination on grounds of age, and discrimination on all the other grounds as well. Giving legal sanction to hitting children confirms and reflects their low status.
...
The basic argument is that children are people, and hitting people is wrong.

109     Everyone in society is entitled to respect for their person, and to protection against physical force. To deny this protection to children at the hands of their parents, parent-substitutes and teachers is not only disrespectful of a child's dignity but turns the child, for the purpose of the Criminal Code, into a "second-class citizen" (Ogg-Moss, at p. 187). As Iacobucci J. noted in Law, at para. 53:
Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society.

111     I therefore agree with my colleague, Deschamps J., that s. 43 discriminates against children and infringes their equality rights. The onus falls on the government to justify it.

6. The Section 1 Justification

112     Parents and teachers play very different roles in a child's life and there is no reason why they should be treated on the same legal plane for the purposes of the criminal assault provisions of the Criminal Code.

(a) In Relation to Parents or Persons Standing in the Place of a Parent

123     Once the legislative objective is found to be pressing and substantial, I think the proportionality requirements are met by Parliament's limitation of the s. 43 defence to circumstances where: (i) the force is for corrective purposes, and (ii) the measure of force is shown to be reasonable under the circumstances. What is reasonable in relation to achievement of the legitimate legislative objective will not, by definition, be disproportionate to such achievement. Moreover, the salutary effects of s. 43 exceed its potential deleterious effects when one considers that the assault provisions of the Criminal Code are just a part, and perhaps a less important part, of the overall protections afforded to children by child welfare legislation….
124     To deny children the ability to have their parents, or persons standing in their parents' place, to be successfully prosecuted for reasonable corrective force under the Criminal Code does not leave them without effective recourse. It just helps to keep the family out of the criminal courts. In my view, s. 43 in relation to parents and persons standing in their place is justified on this basis.

(b) The Application of Section 1 in Relation to Teachers

125     The extension of s. 43 protection to teachers has not been justified under the s. 1 test. It is argued that the legislative objective in the case of teachers echoes the policy reasons applicable to parents, but the logic for keeping criminal sanctions out of the schools is much less compelling than for keeping them out of the home. Compared with a family, a teacher's commitment to a particular child is typically of a different order and for a more limited period of time. While at one time teachers were regarded as parent-type figures, s. 43 itself draws a distinction between a "person standing in the place of a parent" and a teacher. Less harm may flow from discipline inflicted by a parent who typically shares a loving relationship with the child. The pupil-teacher relationship is closer to the master-apprentice relationship for which s. 43 protection was abolished by Parliament in 1955 (see S.C. 1953-54, c. 51, s. 43).

7. Disposition

129     I would therefore uphold the validity of s. 43 in relation to parents and persons standing in the place of a parent, but declare it unconstitutional insofar as it extends to teachers. To that extent, the appeal should be allowed….

The following are the reasons delivered by

ARBOUR J. (dissenting):—

I. Introduction

131     This appeal raises the constitutional validity of s. 43 of the Criminal Code, R.S.C. 1985, c. C-46, which justifies the reasonable use of force by way of correction by parents and teachers against children in their care. Although I come to a conclusion which may not be very different from that reached by the Chief Justice, I do so for very different reasons. The Chief Justice significantly curtails the scope of the defence of s. 43 of the Code, partly on the basis that s. 43 should be strictly construed since it withdraws the protection of the criminal law in certain circumstances. According to her analysis, s. 43 can only be raised as a defence to a charge of simple (common) assault; it applies only to corrective force, used against children older than two but not against teenagers; it cannot involve the use of objects, and should not consist of blows to the head; and it should not relate to the "gravity" of the conduct attracting correction.
132     With respect, in my opinion, such a restrictive interpretation of a statutory defence is inconsistent with the role of courts vis-à-vis criminal defences, both statutory and common law defences. Furthermore, this restrictive interpretation can only be arrived at if dictated by constitutional imperatives. Canadian courts have not thus far understood the concept of reasonable force to mean the "minor corrective force" advocated by the Chief Justice. In my view, the defence contained in s. 43 of the Code, interpreted and applied inconsistently by the courts in Canada, violates the constitutional rights of children to safety and security and must be struck down. Absent action by Parliament, other existing common law defences, such as the defence of necessity and the "de minimis" defence, will suffice to ensure that parents and teachers are not branded as criminals for their trivial use of force to restrain children when appropriate.
133     Section 43 of the Code justifies the use of force by parents and teachers by way of correction. The force that is justified is force that is "reasonable under the circumstances". The section does not say that forcible correction is a defence only to common assault. Nor has it been understood to be so restrictive: see R. v. Pickard, [1995] B.C.J. No. 2861 (QL) (Prov. Ct.) ; R. v. G.C.C. (2001), 206 Nfld. & P.E.I.R. 231 (Nfld. S.C. (T.D.)); R. v. Fritz (1987), 55 Sask. R. 302 (Q.B.); R. v. Bell, [2001] O.J. No. 1820 (QL) (S.C.J.); and R. v. N.S., [1999] O.J. No. 320 (QL) (Gen. Div.), where s. 43 was successfully raised as a defence against charges of assault with a weapon and/or assault causing bodily harm.
134     In the Code, the justifiable use of force may be advanced as a defence against a wide range of offences that have at their origin the application of force. These offences range from common assault, to assault causing bodily harm and eventually to manslaughter. Where, for example, a civilian performs a lawful arrest, the force used may be justified (see R. v. Asante-Mensah, [2003] 2 S.C.R. 3, 2003 SCC 38, at para. 34) even though it causes "hurt or injury ... that is more than merely transient or trifling in nature" (s. 2 of the Code), thereby exonerating the accused from what would otherwise be an assault causing bodily harm.
135     In the case at bar, the critical inquiry turns on the meaning of the phrases "force by way of correction" and "reasonable under the circumstances" (s. 43 of the Code). To say, as the Chief Justice does, that this defence cannot be used to justify any criminal charge beyond simple assault, that the section cannot justify the use of corrective force against a child under 2 or against a teenager, and that force is never reasonable if an object is used, is a laudable effort to take the law where it ought to be. However, s. 43 can only be so interpreted if the law, as it stands, offends the Constitution and must therefore be curtailed. Absent such constitutional constraints, it is neither the historic nor the proper role of courts to enlarge criminal responsibility by limiting defences enacted by Parliament. In fact, the role of the courts is precisely the opposite.
136     Setting aside any constitutional considerations for the moment, courts are expressly prohibited by s. 9 of the Code from creating new common law offences. All criminal offences must be enacted by statute. On the other hand, the courts have been and continue to be the guardians of common law defences. This reflects the role of courts as enforcers of fundamental principles of criminal responsibility including, in particular, the fundamental concept of fault which can only be reduced or displaced by statute.
137     Our recent decision in R. v. Ruzic, [2001] 1 S.C.R. 687 , 2001 SCC 24, exemplifies this classical and sound approach. Ogg-Moss v. The Queen, [1984] 2 S.C.R. 173, can be considered an exception because it curtailed a statutory defence, yet, as I will attempt to demonstrate below, it still failed to achieve a constitutionally acceptable result.
138     In this case, we have been asked to either curtail or abolish altogether a defence created by Parliament. If we are to do this, as I believe we must, it should be for higher constitutional imperatives. Absent a finding of a constitutional violation by Parliament, the reading down of a statutory defence as is done by the Chief Justice amounts to, in my respectful opinion, an abandonment by the courts of their proper role in the criminal process.
139     Courts, including this Court, have until now properly focussed on what constitutes force that is "reasonable under the circumstances". No pre-emptive barriers have been erected. Nothing in the words of the statute, properly construed, suggests that Parliament intended that some conduct be excluded at the outset from the scope of s. 43's protection. This is the law as we must take it in order to assess its constitutionality. To essentially rewrite it before validating its constitutionality is to hide the constitutional imperative.
140     The role of the courts when applying defences must be contrasted with the role of courts when they are called upon to examine the constitutional validity of criminal offences. In such cases, it is entirely appropriate for the courts to interpret the provisions that proscribe conduct in a manner that least restricts "the liberty of the subject", consistent with the wording of the statute and the intent of Parliament. This is what was done in R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, for example. But such a technique cannot be employed to restrict the scope of statutory defences without the courts compromising the core of their interplay with Parliament in the orderly development and application of the criminal law.
141     In the end, I will conclude, not unlike the Chief Justice, that the use of corrective force by parents and teachers against children under their care is only permitted when the force is minimal and insignificant. I so conclude not because this is what the Code currently provides but because it is what the Constitution requires.…

Analysis

(4) Remedy

194     I am of the view that striking down s. 43 for vagueness is the most appropriate remedy in the case at bar. Parliament is best equipped to reconsider this vague and controversial provision. The legislature should have a chance to consider the issues in light of the Charter, current social norms and all of the evidence. …
195     It is useful to put the potential effect of striking down s. 43 of the Code into context. Some are concerned that striking down s. 43 will expose parents and persons standing in the place of parents to the blunt instrument of the criminal law for every minor instance of technical assault. Indeed the respondent and the Chief Justice raise (at paras. 59-61) the spectre of criminal culpability on parents for trivial and insignificant uses of force if s. 43 is repealed. While it is true that Canada's broad assault laws could be resorted to in order to incriminate parents and/or teachers for using force that falls short of corporal punishment, I am of the view that the common law defences of necessity and de minimis adequately protect parents and teachers from excusable and/or trivial conduct.

(5) The Defence of Necessity

196     The common law defence of necessity operates by virtue of s. 8(3) of the Code (see also Morgentaler v. The Queen, [1976] 1 S.C.R. 616). The defence "rests upon a realistic assessment of human weaknesses and recognizes that there are emergency situations where the law does not hold people accountable if the ordinary human instincts overwhelmingly impel disobedience in the pursuit of either self-preservation or the preservation of others" (Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 531). In 1984, the common law defence of necessity was clearly recognized by this Court in Perka v. The Queen, [1984] 2 S.C.R. 232.
197     In R. v. Manning (1994), 31 C.R. (4th) 54 (B.C. Prov. Ct.), at para. 23, the court rearticulated the elements of the defence of necessity as set out in Perka, supra. It stated that the defence of necessity is an excuse rather than a justification and that the moral involuntariness of the wrongful action is a criterion. The involuntariness of the action should be measured against society's expectation of appropriate and normal resistance to pressure. That the accused has been involved in criminal or immoral activity or has been negligent does not disentitle him or her to the defence. Actions or circumstances that indicate that the offence was not truly involuntary will disentitle the accused from relying on the defence. Similarly, the existence of a reasonable legal alternative will also disentitle the accused. The defence will only apply in circumstances of imminent risk, where the action was taken to avoid direct and immediate peril. Necessity will not excuse the infliction of a greater harm, so as to allow the accused to avert a lesser evil. Finally, where the accused places before the court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt.
198     I see no reason why, if the above requirements are met, the defence of necessity would not be available to parents and teachers should they intervene to protect children from themselves or others. Other authors have also proposed the use of necessity for parents and teachers should the s. 43 defence be abolished (see McGillivray, "'He'll learn it on his body': Disciplining childhood in Canadian law", supra, at p. 240, and Stuart, supra, at p. 506). In R. v. Morris (1981), 61 C.C.C. (2d) 163 (Alta. Q.B.), the defence of necessity succeeded in absolving a husband on a charge of common assault of his wife. The husband had restrained his inebriated wife when she tried to jump out of the truck and grab the steering wheel. The husband honestly and reasonably believed that the intervention was necessary. The judge noted, at p. 166, that:

To have allowed his wife to get out of the truck to walk on a dark road in an intoxicated condition would have shown wanton or reckless disregard for her life or safety and could have constituted criminal negligence on his part.

199     Because the s. 43 defence only protects parents who apply force for corrective purposes (see Ogg-Moss, supra, at p. 193), the common law may have to be resorted to in any event in situations where parents forcibly restrain children incapable of learning. Indeed, even if one understands the law as per the Chief Justice (at paras. 24-25), s. 43 may be of no assistance to parents who apply some degree of force for the purpose of restraint. It is not inconceivable to think of situations where force might be applied to young children for reasons other than education or correction. For example, a 2-year-old child who struggles to cross the street at a red light will have to be forcibly held back and secured against his or her will. In my view, the force being applied to the child is not for the purpose of correction per se, but to ensure the child's safety. Similarly, if a parent were to forcibly restrain a child in order to ensure that the child complied with a doctor's instructions to receive a needle, s. 43 would be of no assistance to excuse the use of restraint, but the parent would, in my view, have the common law defence of necessity available to him or her should a charge of assault be pursued. The common law defence of necessity has always been available to parents in appropriate circumstances and would continue to be available if the s. 43 defence were struck down.

(6) The Defence of De Minimis

200     The Chief Justice is rightly unwilling to rely exclusively on prosecutorial discretion to weed out cases undeserving of prosecution and punishment. The good judgment of prosecutors in eliminating trivial cases is necessary but not sufficient to the workings of the criminal law. There must be legal protection against convictions for conduct undeserving of punishment. And indeed there is. The judicial system is not plagued by a multitude of insignificant prosecutions for conduct that merely meets the technical requirements of "a crime" (e.g., theft of a penny) because prosecutorial discretion is effective and because the common law defence of de minimis non curat lex (the law does not care for small or trifling matters) is available to judges.
201     The application of some force upon another does not always suggest an assault in the criminal sense. "Quite the contrary, there are many examples of incidental touching that cannot be considered criminal conduct" (R. v. Kormos (1998), 14 C.R. (5th) 312 (Ont. Ct. (Prov. Div.)), at para. 34).
202     The common law concept of de minimis non curat lex was expressed in the English decision of The "Reward" (1818), 2 Dods. 265, 165 E.R. 1482, at p. 1484, in the following manner:

The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim De minimis non curat lex. — Where there are irregularities of very slight consequence, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.

203     Admittedly, the case law on the application of the defence is limited. It may be that the defence of de minimis has not been used widely by courts because police and prosecutors screen all criminal charges such that only the deserving cases find their way to court. Nonetheless de minimis exists as a common law defence preserved by s. 8(3) of the Code and falls within the courts' discretion (J. Hètu, "Droit judiciaire: De minimis non curat praetor: une maxime qui a toute son importance!" (1990), 50 R. du B. 1065, at pp. 1065-76) to apply and develop as it sees fit. In effect, the defence is that there was only a "technical" commission of the actus reus and that "the conduct fell within the words of an offence description but was too trivial to fall within the range of wrongs which the description was designed to cover" (E. Colvin, Principles of Criminal Law (2nd ed. 1991), at p. 100). The defence of de minimis does not mean that the act is justified; it remains unlawful, but on account of its triviality it goes unpunished (S. A. Strauss, "Book Review of South African Criminal Law and Procedure by E. M. Burchell, J. S. Wylie and P. M. A. Hunt" (1970), 87 So. Afr. L.J. 471, at p. 483).
204     Generally, the justifications for a de minimis excuse are that: (1) it reserves the application of the criminal law to serious misconduct; (2) it protects an accused from the stigma of a criminal conviction and from the imposition of severe penalties for relatively trivial conduct; and (3) it saves courts from being swamped by an enormous number of trivial cases (K. R. Hamilton, "De Minimis Non Curat Lex" (December 1991), discussion paper mentioned in the Canadian Bar Association, Criminal Recodification Task Force Report, Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (1992), at p. 189). In part, the theory is based on a notion that the evil to be prevented by the offence section has not actually occurred. This is consistent with the dual fundamental principle of criminal justice that there is no culpability for harmless and blameless conduct (see my opinion in R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at paras. 234-35 and 244).

206     A statutory formulation of the defence was proposed in the American Law Institute's Model Penal Code (1985), s. 2.12 under "De Minimis Infractions" (in Stuart, supra, at p. 598). The C.B.A. Task Force Report reviewed the uncertain state of the law and recommended codification of a power to stay for trivial violations (see Stuart, supra, at p. 598). A codification of the defence may cure judicial reluctance to rely on de minimis; however, the common law defence of de minimis, as preserved under s. 8(3) of the Code, is sufficient to prevent parents and others from being exposed to harsh criminal sanctions for trivial infractions.
207     I am of the view that an appropriate expansion in the use of the de minimis defence — not unlike the development of the doctrine of abuse of process — would assist in ensuring that mere technical violations of the assault provisions of the Code that ought not to attract criminal sanctions are stayed. In this way, judicial resources are not wasted, and unwanted intrusions of the criminal law in the family context, which may be harmful to children, are avoided. Therefore, if s. 43 were to be struck down, and absent Parliament's re-enactment of a provision compatible with the constitutional rights of children, parents would be no more at risk of being dragged into court for a "pat on the bum" than they currently are for "tasting" a single grape in the supermarket.
208     I conclude that s. 43 of the Criminal Code infringes the rights of children under s. 7 of the Charter. The infringement cannot be demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter. Parents and persons standing in the place of parents will not be exposed to the criminal law unnecessarily as the common law defences of necessity and de minimis will protect them from excusable and/or trivial conduct.

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LRCC § 3(14)

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MPC § 3.08

D.        Self-Defence (Defence of Others, Defence of Property)

 

R. v. Pétel
[1994] 1 S.C.R. 3; [1994] S.C.J. No. 1
Supreme Court of Canada

LAMER C.J.:

I.         Facts

1     The respondent Colette Pétel is charged with the second degree murder of Alain Raymond. She is the mother of Josée Desjardins, who, at the time of the alleged offence, was Serge Edsell's girlfriend. Edsell and Raymond were jointly involved in drug trafficking.
2     Josée Desjardins and Serge Edsell met and began living together in March 1989. In early May, after being evicted from the apartment where they were living, they moved in temporarily with the respondent. In her testimony the respondent described the terrible existence caused by Edsell's presence in her house, the fact that he was engaged in drug trafficking there and the comings and goings of his customers in the house. She said that Edsell was always angry, that he threatened her frequently and that he beat his girlfriend Josée Desjardins. The respondent even tried to commit suicide.…
4     On July 21, Edsell went to the respondent's home with a revolver, cocaine and scales. He asked her to hide the weapon. He forced her to weigh some cocaine and then suggested he would kill her, together with her daughter and granddaughter. Shortly afterwards Josée Desjardins arrived accompanied by Alain Raymond. At this point the respondent consumed a small amount of drugs and then went to get the weapon she had hidden in the bathroom. She fired at Edsell, who fell at once. Seeing that Raymond was lunging at her, she also fired at him. Edsell survived but Raymond died of his injuries….
5     In her statements to the police immediately after these events the respondent admitted firing at Edsell and Raymond and said she wished both of them dead.

II.        Applicable Legislation

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

34.       . . .
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

265. (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose….

V.        Analysis

18     The law on self-defence has often been criticized for its complexity and lack of coherence: D. Stuart, Canadian Criminal Law: A Treatise (2nd ed. 1987), at p. 413; and Canada Law Reform Commission, Working Paper 29, Criminal Law — The General Part: Liability and Defences (1982), at p. 116. When the courts interpret the provisions of the Criminal Code, they should therefore try to confine themselves to general principles and not unnecessarily create complex rules and subtle distinctions.
19     It can be seen from the wording of s. 34(2) of the Code that there are three constituent elements of self-defence, when as here the victim has died: (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary.
20     In all three cases the jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable.…
21     …. An honest but reasonable mistake as to the existence of an assault is therefore permitted.… The existence of an assault must not be made a kind of prerequisite for the exercise of self-defence to be assessed without regard to the perception of the accused. This would amount in a sense to trying the victim before the accused. In a case involving self-defence, it is the accused's state of mind that must be examined, and it is the accused (and not the victim) who must be given the benefit of a reasonable doubt. The question that the jury must ask itself is therefore not "was the accused unlawfully assaulted?" but rather "did the accused reasonably believe, in the circumstances, that she was being unlawfully assaulted?"[1]

VI.       Conclusion

31     The undisputed evidence that Edsell, her alleged attacker, handed over his weapon and asked his future victim to hide it, conduct that is odd to say the least for someone intending to kill, must have had a clear effect on the jury, indeed on any jury composed of reasonable individuals. In the Court of Appeal and in this Court, however, counsel for the Crown did not argue that, given the evidence in this case, no substantial wrong or miscarriage of justice occurred, and that s. 686(1)(b)(iii) of the Criminal Code should thus be applied. The Crown has the burden of showing that this provision is applicable: Colpitts v. The Queen, [1965] S.C.R. 739. This Court cannot apply it proprio motu. Having found an error of law in the judge's answer to the question by the jury, I must accordingly dismiss the appeal and affirm the order for a new trial.

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Criminal Code Bill Commission Report (U.K.), Introduction (1879)


* * *

Foliamb's Case, Trin. 43 Eliz.


* * *

 

R. v. McIntosh
[1995] 1 S.C.R. 686
Supreme Court of Canada

The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
LAMER C.J.:

I.         Factual Background

1     On February 7, 1991, Basile Hudson, who made his living repairing appliances and electronic equipment, was stabbed to death by the respondent. The circumstances surrounding Hudson's death arose during the summer of 1990 when the respondent, a 26-year-old man, was working as a disc jockey. He gave the deceased, who lived in the same neighbourhood, an amplifier and other equipment to repair. Over the next eight months, the respondent made several attempts to retrieve his equipment, but the deceased actively avoided him. On one occasion, the respondent, armed with a knife, confronted the deceased and told him he would "get him" if the equipment was not returned. On another occasion, the deceased fled through the back exit of his home when the respondent appeared at the front door.
2     On the day of the killing, the respondent's girlfriend saw the deceased working outside and informed the respondent. The respondent obtained a kitchen knife and approached the deceased. Words were exchanged. The respondent testified that he told the deceased, "Get my fucking amp because I need it. Go suck your mother and bring my fucking amp." According to the respondent, the deceased pushed him, and a struggle ensued. Then the deceased picked up a dolly, raised it to head level, and came at the respondent. The respondent reacted by stabbing the deceased with the kitchen knife. He then threw the knife down and fled the scene. Later that day, after consulting with a lawyer, the respondent turned himself in.
3     On November 25, 1991, the respondent appeared in the Ontario Court (General Division) before Moldaver J. and a jury on a charge of second degree murder. He entered a plea of not guilty, and took the position at trial that the stabbing of the deceased was an act of self-defence. The jury found the respondent guilty of the lesser and included offence of manslaughter. He was sentenced to two and one-half years' imprisonment.
4     The respondent appealed his conviction to the Ontario Court of Appeal on the ground that the trial judge erred in instructing the jury that s. 34(2) of the Criminal Code, R.S.C., 1985, c. C-46, was not applicable in the event they found that the respondent had been the initial aggressor, having provoked the deceased. The Court of Appeal allowed the respondent's appeal, set aside the conviction and ordered a new trial: (1993), 15 O.R. (3d) 450, 84 C.C.C. (3d) 473, 24 C.R. (4th) 265, 65 O.A.C. 199.
5     The Crown now appeals to this Court, arguing that the Ontario Court of Appeal erred when it reached the conclusion that self-defence as defined in s. 34(2) of the Criminal Code is available to accused persons who are initial aggressors.

II.        Relevant Statutory Provisions

Criminal Code, R.S.C., 1985, c. C-46
Defence of Person

34.(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.

36. Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures.

37.(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the 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.

IV.       Analysis

A.        Introduction

14     This case raises a question of pure statutory interpretation: Is the self-defence justification in s. 34(2) of the Criminal Code available where an accused is an initial aggressor, having provoked the assault against which he claims to have defended himself? The trial judge, Moldaver J., construed s. 34(2) as not applying in such a circumstance. The Ontario Court of Appeal disagreed.
15     The conflict between ss. 34 and 35 is obvious on the face of the provisions. Section 34(1) begins with the statement, "Every one who is unlawfully assaulted without having provoked the assault . . .". In contrast, s. 34(2) begins, "Every one who is unlawfully assaulted . . .". Missing from s. 34(2) is any reference to the condition, "without having provoked the assault". The fact that there is no non-provocation requirement in s. 34(2) becomes important when one refers to s. 35, which explicitly applies where an accused has "without justification provoked an assault . . .".

Therefore, both ss. 34(2) and 35 appear to be available to initial aggressors. Hence, the issue arises in this case of whether the respondent, as an initial aggressor raising self-defence, may avail himself of s. 34(2), or should be required instead to meet the more onerous conditions of s. 35.

16     As a preliminary comment, I would observe that ss. 34 and 35 of the Criminal Code are highly technical, excessively detailed provisions deserving of much criticism. These provisions overlap, and are internally inconsistent in certain respects. Moreover, their relationship to s. 37 (as discussed below) is unclear. It is to be expected that trial judges may encounter difficulties in explaining the provisions to a jury, and that jurors may find them confusing. The case at bar demonstrates this. During counsel's objections to his charge on ss. 34 and 35, the trial judge commented, "Well, it seems to me these sections of the Criminal Code are unbelievably confusing." I agree with this observation.
17     Despite the best efforts of counsel in the case at bar to reconcile ss. 34 and 35 in a coherent manner, I am of the view that any interpretation which attempts to make sense of the provisions will have some undesirable or illogical results. It is clear that legislative action is required to clarify the Criminal Code's self-defence regime.

B.        Did the trial judge err in charging the jury that s. 34(2) of the Criminal Code is not available to an initial aggressor?

(i)         Section 34(2) is not ambiguous

18     In resolving the interpretive issue raised by the Crown, I take as my starting point the proposition that where no ambiguity arises on the face of a statutory provision, then its clear words should be given effect. This is another way of asserting what is sometimes referred to as the "golden rule" of literal construction: a statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise (Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 29).
19     While s. 34(1) includes the statement "without having provoked the assault", s. 34(2) does not. Section 34(2) is clear, and I fail to see how anyone could conclude that it is, on its face, ambiguous in any way. Therefore, taking s. 34(2) in isolation, it is clearly available to an initial aggressor.
20     The Crown has asked this Court to read into s. 34(2) the words "without having provoked the assault". The Crown submits that by taking into consideration the common law of self-defence, legislative history, related Criminal Code provisions, margin notes, and public policy, it becomes clear that Parliament could not have intended s. 34(2) to be available to initial aggressors. Parliament's failure to include the words "without having provoked the assault" in s. 34(2) was an oversight, which the Crown is asking this Court to correct.
21     The Crown labels its approach "contextual". There is certainly support for a "contextual approach" to statutory interpretation. Driedger, in Construction of Statutes (2nd ed. 1983), has stated the modern principle of contextual construction as follows (at p. 87):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. . . . Lord Atkinson in Victoria (City) v. Bishop of Vancouver Island, [1921] 2 A.C. 384, at p. 387, put it this way:
In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.
….
22     Certainly, interpreting statutory provisions in context is a reasonable approach. However, a "contextual approach" lends no support to the Crown's position. First, the contextual approach takes as its starting point the intention of the legislature. However, given the confused nature of the Criminal Code provisions related to self-defence, I cannot imagine how one could determine what Parliament's intention was in enacting the provisions. Therefore, it seems to me that in this case one is prevented from embarking on a contextual analysis ab initio.
23     The Crown argues that it was Parliament's intention that neither s. 34(1) nor s. 34(2) be available to initial aggressors, and that it was a mere oversight that the words chosen in s. 34(2) do not give effect to this intention.
I would have thought it would be equally persuasive to argue that Parliament intended both ss. 34(1) and (2) to be available to initial aggressors, and that Parliament's mistake was in including the words "without having provoked the assault" in s. 34(1).
24     Parliament's intention becomes even more cloudy when one refers to s. 45 of the 1892 Criminal Code, S.C. 1892, c. 29, which was the forerunner of ss. 34(1) and 34(2):
45. Every one unlawfully assaulted, not having provoked such assault, is justified in repelling force by force, if the force he uses is not meant to cause death or grievous bodily harm, and is no more than is necessary for the purpose of self-defence; and every one so assaulted is justified, though he causes death or grievous bodily harm, if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purpose, and if he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

There is a clear ambiguity in this provision. Does the expression "every one so assaulted" refer to "[e]very one unlawfully assaulted", or to "[e]very one unlawfully assaulted, not having provoked such assault"? This question is academic, since Parliament appears to have resolved the ambiguity in its 1955 revision of the Criminal Code, S.C. 1953-54, c. 51. The first part of the former s. 45 was renumbered s. 34(1), and the second part became s. 34(2). The new s. 34(2) omitted any reference to a non-provocation requirement.

25     If Parliament's intention is to be implied from its legislative actions, then there is a compelling argument that Parliament intended s. 34(2) to be available to initial aggressors. When Parliament revised the Criminal Code in 1955, it could have included a provocation requirement in s. 34(2). The result would then be similar to s. 48(2) of the New Zealand Crimes Act 1961, S.N.Z. 1961, No. 43 (repealed and substituted 1980, No. 63, s. 2) which was virtually identical to s. 34(2) save that it included an express non-provocation requirement:

48. . . .
(2) Every one unlawfully assaulted, not having provoked the assault, is justified in repelling force by force although in so doing he causes death or grievous bodily harm, if . . .
The fact that Parliament did not choose this route is the best and only evidence we have of legislative intention, and this evidence certainly does not support the Crown's position.

26     Second, the contextual approach allows the courts to depart from the common grammatical meaning of words where this is required by a particular context, but it does not generally mandate the courts to read words into a statutory provision. It is only when words are "reasonably capable of bearing" a particular meaning that they may be interpreted contextually….
The Crown is asking this Court to read words into s. 34(2) which are simply not there. In my view, to do so would be tantamount to amending s. 34(2), which is a legislative and not a judicial function. The contextual approach provides no basis for the courts to engage in legislative amendment.
27     Third, in this case we cannot lose sight of the overriding principle governing the interpretation of penal provisions. In Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108, Dickson J. (as he then was) stated the principle as follows, at p. 115:

Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal . . . I would have to find for the appellant in this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced.

Section 34(2), as a defence, acts as a "subtraction" from the liability which would otherwise flow from the criminal offences contained in the Criminal Code. Criminal Code provisions concerning offences and defences both serve to define criminal culpability, and for this reason they must receive similar interpretive treatment.

28     This principle was eloquently stated by La Forest J.A. (as he then was) in New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982), 44 N.B.R. (2d) 201, at p. 210:

There is no doubt that the duty of the courts is to give effect to the intention of the Legislature as expressed in the words of the statute. And however reprehensible the result may appear, it is our duty if the words are clear to give them effect. This follows from the constitutional doctrine of the supremacy of the Legislature when acting within its legislative powers. The fact that the words as interpreted would give an unreasonable result, however, is certainly ground for the courts to scrutinize a statute carefully to make abundantly certain that those words are not susceptible of another interpretation. For it should not be readily assumed that the Legislature intends an unreasonable result or to perpetrate an injustice or absurdity.

This scarcely means that the courts should attempt to reframe statutes to suit their own individual notions of what is just or reasonable.

29     It is a principle of statutory interpretation that where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation. By this same reasoning, where such a provision is, on its face, favourable to an accused, then I do not think that a court should engage in the interpretive process advocated by the Crown for the sole purpose of narrowing the provision and making it less favourable to the accused. Section 34(2), on its face, is available to the respondent. It was, with respect, an error for the trial judge to narrow the provision in order to preclude the respondent from relying on it.
30     I therefore conclude that s. 34(2) is not an ambiguous provision, and is available to an initial aggressor.…

(ii)        Even though s. 34(2) may give rise to absurd results, the Crown's interpretation cannot be adopted

31     It is important to reiterate that there is no ambiguity on the face of s. 34(2). The Crown's argument that the provision is ambiguous relies on legislative history, the common law, public policy, margin notes, and the relationship between ss. 34 and 35. The Crown alleges that it would be absurd to make s. 34(2) available to initial aggressors when s. 35 so clearly applies. Parliament, the Crown submits, could not have intended such an absurd result, and therefore the provision cannot mean what it says. Essentially, the Crown equates absurdity with ambiguity….
39     The Criminal Code is not a contract or a labour agreement. For that matter, it is qualitatively different from most other legislative enactments because of its direct and potentially profound impact on the personal liberty of citizens. The special nature of the Criminal Code requires an interpretive approach which is sensitive to liberty interests.

Therefore, an ambiguous penal provision must be interpreted in the manner most favourable to accused persons, and in the manner most likely to provide clarity and certainty in the criminal law.

40     I would agree that some absurdity flows from giving effect to the terms of s. 34(2). One is struck, for example, by the fact that if s. 34(2) is available to an initial aggressor who has killed or committed grievous bodily harm, then that accused may be in a better position to raise self-defence than an initial aggressor whose assault was less serious. This is because the less serious aggressor could not take advantage of the broader defence in s. 34(2), as that provision is only available to an accused who "causes death or grievous bodily harm". Section 34(1) would not be available since it is explicitly limited to those who have not provoked an assault. Therefore, the less serious aggressor could only have recourse to s. 35, which imposes a retreat requirement. It is, in my opinion, anomalous that an accused who commits the most serious act has the broadest defence.
41     Even though I agree with the Crown that the interpretation of s. 34(2) which makes it available to initial aggressors may be somewhat illogical in light of s. 35, and may lead to some absurdity, I do not believe that such considerations should lead this Court to narrow a statutory defence. Parliament, after all, has the right to legislate illogically (assuming that this does not raise constitutional concerns). And if Parliament is not satisfied with the judicial application of its illogical enactments, then Parliament may amend them accordingly.
42     What is most important in this case is that s. 34(2) applies on its face to initial aggressors, and is therefore open to such an interpretation. This interpretation is more favourable to accused persons than the alternative advanced by the Crown. Moreover, this interpretation is consistent with the clear wording of s. 34(2), thus providing certainty for citizens. Although I appreciate the efforts of the Crown to underscore the problems with the Criminal Code's self-defence regime through a broad historical, academic and policy-based analysis, I suspect that very few citizens are equipped to engage in this kind of interpretive approach. Rare will be the citizen who will read ss. 34 and 35, and recognize the logical inconsistencies as between the two provisions. Rarer still will be the citizen who will read the provisions and conclude that they are inconsistent with the common law, or with Parliament's intention in 1892, or with margin notes. Given that citizens have to live with the Criminal Code, and with judicial interpretations of the provisions of the Code, I am of the view that s. 34(2) must be interpreted according to its plain terms. It is therefore available where an accused is an initial aggressor, having provoked the assault against which he claims to have defended himself.

C.        Section 37 of the Criminal Code

43     Before concluding, I will briefly address the respondent's argument related to s. 37 of the Criminal Code. Section 37, itself a distinct justification, contains a general statement of the principle of self-defence:

37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the 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.

44     Section 37 adds to the confusion surrounding ss. 34 and 35, since it appears to make the self-defence justification available to an accused in any circumstance where the force used by that accused was (i) necessary, and (ii) proportionate. If s. 37 is available to an initial aggressor (and there is no indication that it is not), then it would appear to be in conflict with s. 35. Moreover, it is difficult to understand why Parliament would enact the specific and detailed justifications in ss. 34 and 35, yet then make available a broad justification in s. 37 which appears to render ss. 34 and 35 redundant.
45     Although Parliament's intention in enacting s. 37 is unclear, at the very least the provision must serve a gap-filling role, providing the basis for self-defence where ss. 34 and 35 are not applicable. The respondent, though taking the position that Moldaver J. erred in not putting s. 37 to the jury at his trial, has been unable to advance a scenario under which ss. 34 (as interpreted above) and 35 would not afford him a defence. Therefore, there appears to be no room left for s. 37 in this case.
46     The respondent has suggested that s. 37 should be put to the jury in all cases because it outlines the basic principles of self-defence, and this will be helpful to the jury. However, a trial judge can explain these principles without resort to s. 37, since these principles form the foundation of ss. 34 and 35.

D.        Conclusion

47     With respect, Moldaver J. erred in instructing the jury at the respondent's trial that s. 34(2) was not available to an initial aggressor.… The appeal is dismissed, the respondent's conviction set aside and a new trial.

 

R. v. Pawliuk
[2001] B.C.J. No. 57; 2001 BCCA 13
British Columbia Court of Appeal
Victoria, British Columbia

[Pawliuk and Preyser became involved in an argument over a prostitute. Pawliuk fled when Preyser revealed that he had a gun. Pawliuk returned to the scene of the first confrontation with a gun. Pawliuk returned to protect his reputation and to discuss the dispute with Preyser. Pawliuk confronted Preyser and they had an argument. Preyser made a movement behind his back. Pawliuk took out his gun because he thought Preyser would use his gun. The gun went off and Preyser was shot in the chest. Pawliuk claimed that he did not intend to shoot Preyser.]

1     BRAIDWOOD J.A.:— The appellants were charged with committing the second degree murder of Brett Preyser on 16 July 1997 in Victoria, British Columbia. The trial lasted for two weeks, and was heard in April of 1998 by a judge sitting with a jury. Mr. Pawliuk gave evidence on his own behalf. Mr. Brown did not testify, although he did call one witness in his defence. On 23 April 1998, the jury returned a verdict of guilty on the charge of second degree murder for both Mr. Brown and Mr. Pawliuk. Mr. Justice Melvin sentenced them both to life imprisonment with no pos-sibility of parole for 10 years. The grounds of this appeal relate to the learned trial judge's charge to the jury. [The trial judge only left s. 34(2) with the jury.]

23     In R. v. Pintar (1996), 110 C.C.C. (3d) 402, 30 O.R. (3d) 483 (C.A.), the court outlined certain guidelines that trial judges may follow when faced with the prospect of charging the jury on the law of self-defence. I quote from the headnote:

Trial judges should consider the following guidelines when faced with the pros-pect of charging a jury on the law of self-defence: (1) Consider the evidence carefully with a view to determining the essence of the claim to self-defence and the Criminal Code provision(s) realistically available to that claim. (2) To the ex-tent that the evidence fails the air of reality test in respect of one or more of the constituent elements of a particular provision, that provision should not be left to the jury. (3) To the extent that evidence clearly establishes one or more of the constituent elements of a particular provision, Crown counsel should be encour-aged to admit the underlying facts and thereby avoid unnecessary legal instruc-tion. (4) Where a particular provision affords the accused a wider scope of justi-fication than a companion provision, the narrower provision should only be put to the jury if the evidence lends an air of reality to the factual underpinnings of that provision, and the provision fills a gap unaccounted for in the justification afforded by the wider provision. . . .

For there to be an error of law, it must be shown that the charge was so unnecessarily complex and confusing that it probably diverted the jury from considering the real basis upon which the claim to self-defence was advanced. The test is a stringent one and will not be easily met.

24    I am of the opinion that the learned trial judge followed the direction outlined above. In the circumstances here, it would have caused unnecessary confusion to leave both s. 34(1) and s. 34(2) with the jury with no benefit to the appellant….

The following is the judgment of:
63    RYAN J.A. (concurring):— I have read in draft the reasons of my colleague Mr. Justice Braidwood. I agree with his disposition of these two appeals, but wish to set out my own reasons for concluding that the trial judge did not err in failing to leave s. 34(1) of the Criminal Code with the jury as it related to Mr. Pawliuk's defence….
68   The appellant's argument is that s. 34(1) is the applicable self-defence provision when the accused does not intend to cause death or bodily harm. He says that s. 34(2) applies when the accused responds to an attack intending to cause death or grievous bodily harm.
69     I have concluded that the trial judge was right not to leave s. 34(1) with the jury. In my view both ss. 34(1) and (2) may apply where the accused, in repelling an attack, did not intend to cause death or grievous bodily harm. Lack of intention alone does not require a trial judge to leave both subsections with the jury. What differentiates the sections is whether the accused reasonably apprehended that the attack on him or her was likely to cause his or her own death or grievous bodily harm. If the accused reasonably apprehended his own death or grievous bodily harm then he or she is entitled to the more favourable provisions of s. 34(2). In the case at bar the appellant testified that he feared the deceased was going to kill him and that he responded by pulling out the gun. His defence fell within s. 34(2). It did not fall within s. 34(1) - his entire defence was premised on his belief that the deceased was going to kill or seriously injure him.
70     I believe my view of the operation of ss. 34(1) and (2) is supported by the decision of the Ontario Court of Appeal in R. v. Pintar (1996), 30 O.R. (3d) 483, 110 C.C.C. (3d) 402, which reconsidered, or perhaps reinterpreted, its previous decision in R. v. Baxter (1975), 27 C.C.C. (2d) 96. Until the decision in Pintar, this Court, and other courts including the Supreme Court of Canada, had interpreted s. 34(2) to apply only in circumstances where the accused intended to cause death or grievous bodily harm to the victim.
71     In R. v. Baxter, the accused had injured his victims with shotgun pellets when he discharged a shotgun in their direction. The trial judge, holding that s. 34(1) was inapplicable because grievous bodily harm had resulted, charged the jury only on s. 34(2) of the Criminal Code. The Ontario Court of Appeal ordered a new trial. It held that the difference in ss. 34(1) and 34(2) did not lie in whether the accused's actions resulted in death or grievous bodily harm, but in whether the accused intended to cause death or grievous bodily harm. Writing for the Court, Martin J.A. held that s. 34(1) is not automatically excluded where death or grievous bodily harm has resulted. Referring to the fact that s. 34(2) contains the words "[an accused] who causes death or grievous bodily harm" while s. 34(1) does not, Martin J.A. said this, at p. 110:

In my opinion, the words in s. 34(2) "who causes death or grievous bodily harm" mean "even though he intentionally causes death or grievous bodily harm". The language of s. 53(2), the predecessor of s. 34(2) was clearer in this respect. I do not think, however, that in rewording the present section, Parliament intended to alter the law. Any other interpretation would leave unprovided for the case of a person who, using no more force than is necessary to defend himself against an unprovoked assault, accidentally kills or causes grievous bodily harm to his assailant without intending to do so, and who does not fall within s. 34(2) because he did not apprehend death or grievous bodily harm, or did not believe that the only way he could defend himself was by killing his assailant or causing him grievous bodily harm.

Martin J.A. concluded, at p. 111:

Where there is an issue as to whether the accused intended to cause death or grievous bodily harm the trial Judge, notwithstanding death or grievous bodily harm has resulted, should instruct the jury with respect to the provisions of s. 34(1) and then proceed to s. 34(2) as the applicable provision, in the event that the jury is satisfied that the accused intended to cause death or grievous bodily harm.


73     In Pintar the Ontario Court of Appeal extended the analysis in Baxter. While Baxter held that ss. 34(1) and (2) are not mutually exclusive when death or grievous bodily harm results from the accused's actions, Pintar went further to hold that ss. 34(1) and (2) are not mutually exclusive where there is no intention to cause death or grievous bodily harm. In so concluding, the Court, properly in my view, effectively held that the distinction between the subsections lies primarily in the accused's perception of what is happening to him when he acts against the victim, i.e. whether the accused has a reasonable apprehension of death or grievous bodily harm at the hands of his attacker.
74     In Pintar, Mr. Justice Moldaver said this, at p. 431, C.C.C.:

Unlike s. 34(1) which speaks to the issue of intent, s. 34(2) does not. The plain wording of s. 34(2) reveals that the provision is triggered when a person who has been unlawfully assaulted causes death or grievous bodily harm in repelling the assault. On its face, this wording would certainly suggest that the applicability of s. 34(2) is dependent upon a finding that the original assailant either died or suffered grievous bodily harm as a consequence of the responsive measures taken by the person assaulted. To go beyond that and hold that when the charge is murder, accused persons can only take advantage of s. 34(2) if they intend to kill or cause grievous bodily harm has the effect not only of adding words to the section which are simply not there, but also of creating an additional hurdle which they must overcome when the charge is murder.
and later, at pp. 433-34:
As a matter of policy, I am unable to fathom why accused persons charged with murder, who otherwise meet the criteria of s. 34(2), should be precluded from relying upon the provision simply because they did not intend to kill or cause grievous bodily harm. If anything, these accused are potentially less morally blameworthy than those who intentionally kill or cause grievous bodily harm. I fail to see why s. 34(2) should be interpreted in a manner which puts a premium on a higher degree of moral blameworthiness. My concern is particularly heightened in light of R. v. McIntosh, ([1995] 1 S.C.R. 686, 95 C.C.C. (3d) 481), which establishes that unlike s. 34(1), s. 34(2) applies regardless of whether an accused provokes the initial unlawful assault. If s. 34(2) contains, as a fourth constituent element, the intent to kill or cause grievous bodily harm in murder cases, this would mean that accused persons who provoke an assault then intentionally kill their assailant are in a better position than those who provoke an assault and kill unintentionally. I see no reason why effect should be given to such an anomalous and inequitable result.

75     Moldaver J.A. noted that in Baxter Martin J.A. had used the phrase "even if he intends to cause death or bodily harm", rather than "only if etc." Thus, Moldaver J.A. concluded, Baxter should not be read as limiting s. 34(2) to cases where the accused intends to cause death or grievous bodily harm. Instead, he found that s. 34(2) included cases where the accused intends to cause death or grievous bodily harm.
76     Although it adds little to the analysis, I am of the view that language employed by Ritchie J. in R. v. Reilly, [1984] 2 S.C.R. 396, supports the interpretation of Moldaver J.A. in Pintar. Rather than intent, Ritchie J. focussed on the accused's reasonable apprehension of the attack upon him and the force employed by him in repelling the attack, rather than whether or not the accused in employing the force intended to cause death or bodily harm. He said, at p. 404:

Subsection (2) of s. 34 places in issue the accused's state of mind at the time he caused the death. The subsection can only afford protection to the accused if he apprehended death or grievous bodily harm from the assault he was repelling and if he believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. Nonetheless, his apprehension must be a reasonable one and his belief must be based upon reasonable and probable grounds. The subsection requires that the jury consider, and be guided by, what they decide on the evidence was the accused's appreciation of the situation and his belief as to the reaction it required, so long as there exists an objectively verifiable basis for his perception.

77     This interpretation reflects the reality of the situation when a person is called upon to defend himself or herself from an attack. More often the intent of the person attacked is simply to save him or herself by whatever force required. If he or she were asked, "Were you trying to kill the deceased?" they would answer, "I did not think about that, I was doing what I had to save myself from being seriously hurt or killed."
78     The result of the Pintar case is that if the accused reasonably apprehends that he is under threat of death or grievous bodily harm he may defend himself using as much force as he reasonably believes is required to preserve himself from death or grievous bodily harm which may or may not include an intention by the accused to cause death or grievous bodily harm. If the accused does not reasonably believe that he is under threat of death or grievous bodily harm he may rely on s. 34(1), but only if he did not intend to cause death or grievous bodily harm. If, in response to the attack upon him, the accused intends to cause death or grievous bodily harm he is limited to s. 34(2) and thus he must in turn be under a reasonable apprehension of death or grievous bodily harm from his attacker before it can be said his response is justified….

* * * * *
CORRIGENDUM
Released: April 20, 2004
In paragraph 63, the section referred to as 34(2) in the Criminal Code has been changed to section 34(1).

 

R. v. Lavallee
Supreme Court of Canada
[1990] 55 C.C.C. (3d) 97; [1990] 1 S.C.R. 852

DICKSON C.J.C. and LAMER J. concur with WILSON J.
WILSON J.:—The narrow issue raised on this appeal is the adequacy of a trial judge’s instructions to the jury regarding expert evidence. The broader issue concerns the utility of expert evidence in assisting a jury confronted by a plea of self-defence to a murder charge by a common law wife who had been battered by the deceased.

1. The facts

The appellant, who was 22 years old at the time, had been living with Kevin Rust for some three to four years. Their residence was the scene of a boisterous party on August 30, 1986. In the early hours of August 31st, after most of the guests had departed, the appellant and Rust had an argument in the upstairs bedroom which was used by the appellant. Rust was killed by a single shot in the back of the head from a .303 calibre rifle fired by the appellant as he was leaving the room.

The appellant did not testify but her statement made to police on the night of the shooting was put in evidence. Portions of it read as follows:

Me and Wendy argued as usual and I ran in the house after Kevin pushed me. I was scared, I was really scared. I locked the door. Herb was downstairs with Joanne and I called for Herb but I was crying when I called him. I said, “Herb come up here please.” Herb came up to the top of the stairs and I told him that Kevin was going to hit me actually beat on me again. Herb said he knew and that if I was his old lady things would be different, he gave me a hug. OK, we’re friends, there’s nothing between us. He said “Yeah, I know” and he went outside to talk to Kevin leaving the door unlocked. I went upstairs and hid in my closet from Kevin. I was so scared . . . My window was open and I could hear Kevin asking questions about what I was doing and what I was saying. Next thing I know he was coming up the stairs for me. He came into my bedroom and said “Wench, where are you?” And he turned on my light and he said “Your purse is on the floor” and he kicked it. OK then he turned and he saw me in the closet. He wanted me to come out but I didn’t want to come out because I was scared. I was so scared. [The officer who took the statement then testified that the appellant started to cry at this point and stopped after a minute or two.] He grabbed me by the arm right there. There’s a bruise on my face also where he slapped me. He didn’t slap me right then, first he yelled at me then he pushed me and I pushed him back and he hit me twice on the right hand side of my head. I was scared. All I thought about was all the other times he used to beat me, I was scared, I was shaking as usual. The rest is a blank, all I remember is he gave me the gun and a shot was fired through my screen. This is all so fast. And then the guns were in another room and he loaded it the second shot and gave it to me. And I was going to shoot myself. I pointed it to myself, I was so upset. OK and then he went and I was sitting on the bed and he started going like this with his finger [the appellant made a shaking motion with an index finger] and said something like “You’re my old lady and you do as you’re told” or something like that. He said “wait till everybody leaves, you’ll get it then” and he said something to the effect of “either you kill me or I’ll get you” that was what it was. He kind of smiled and then he turned around. I shot him but I aimed out. I thought I aimed above him and a piece of his head went that way.

The relationship between the appellant and Rust was volatile and punctuated by frequent arguments and violence. They would apparently fight for two or three days at a time or several times a week. Considerable evidence was led at trial indicating that the appellant was frequently a victim of physical abuse at the hands of Rust. Between 1983 and 1986, the appellant made several trips to hospital for injuries including severe bruises, a fractured nose, multiple contusions and a black eye. One of the attending physicians, Dr. Dirks, testified that he disbelieved the appellant’s explanation on one such occasion that she had sustained her injuries by falling from a horse.

A friend of the deceased, Robert Ezako, testified that he had witnessed several fights between the appellant and the deceased and that he had seen the appellant point a gun at the deceased twice and threaten to kill him if he ever touched her again. Under cross-examination Ezako admitted to seeing or hearing the deceased beat up the appellant on several occasions and, during the preliminary inquiry, described her screaming during one such incident like “a pig being butchered”. He also saw the appellant with a black eye on one occasion and doubted that it was the result of an accident as she and the deceased stated at the time. Another acquaintance of the couple recalled seeing the appellant with a split lip.

At one point on the night of his death Rust chased the appellant outside the house and a mutual friend, Norman Kolish, testified that the appellant pleaded with Rust to “leave me alone” and sought Kolish’s protection by trying to hide behind him. A neighbour overheard Rust and the appellant arguing and described the tone of the former as “argumentative” and the latter as “scared”. Later, between the first and second gunshot, he testified that he could hear that “somebody was beating up somebody” and the screams were female. Another neighbour testified to hearing noises like gunshots and then a woman’s voice sounding upset saying “Fuck. He punched me in the face. He punched me in the face”. He looked out the window and saw a woman matching the description of the appellant.

Three witnesses who attended the party testified to hearing sounds of yelling, pushing, shoving and thumping coming from upstairs prior to the gunshots. It is not disputed that two shots were fired by the appellant. The first one went through a window screen. It is not clear where Rust was at the time. The appellant in her statement says that he was upstairs, while another witness places him in the basement. The second shot was the fatal one. After the second shot was fired the appellant was seen visibly shaken and upset and was heard to say “Rooster [the deceased] was beating me so I shot him” and “You know how he treated me, you’ve got to help me”. The arresting officer testified that en route to the police station the appellant made various comments in the police car, including “He said if I didn’t kill him first he would kill me. I hope he lives. I really love him”, and “He told me he was gonna kill me when everyone left”.

The police officer who took the appellant’s statement testified to seeing a red mark on her arm where she said the deceased had grabbed her. When the coroner who performed an autopsy on the deceased was shown pictures of the appellant (who had various bruises), he testified that it was “entirely possible” that bruises on the deceased’s left hand were occasioned by an assault on the appellant. Another doctor noted an injury to the appellant’s pinkie finger consistent with those sustained by the adoption of a defensive stance.

The expert evidence which forms the subject-matter of the appeal came from Dr. Fred Shane, a psychiatrist with extensive professional experience in the treatment of battered wives. At the request of defense counsel Dr. Shane prepared a psychiatric assessment of the appellant. The substance of Dr. Shane’s opinion was that the appellant had been terrorized by Rust to the point of feeling trapped, vulnerable, worthless and unable to escape the relationship despite the violence. At the same time, the continuing pattern of abuse put her life in danger. In Dr. Shane’s opinion the appellant’s shooting of the deceased was a final desperate act by a woman who sincerely believed that she would be killed that night:

…I think she felt, she felt in the final tragic moment that her life was on the line, that unless she defended herself, unless she reacted in a violent way that she would die. I mean he made it very explicit to her, from what she told me and from the information I have from the material that you forwarded to me that she had, I think, to defend herself against his violence.

Dr. Shane stated that his opinion was based on four hours of formal interviews with the appellant, a police report of the incident (including the appellant’s statement), hospital reports documenting eight of her visits to emergency departments between 1983 and 1985, and an interview with the appellant’s mother. In the course of his testimony Dr. Shane related many things told to him by the appellant for which there was no admissible evidence. They were not in the appellant’s statement to the police and she did not testify at trial. For example, Dr. Shane mentioned several episodes of abuse described by the appellant for which there were no hospital reports. He also related the appellant’s disclosure to him that she had lied to doctors about the cause of her injuries. Dr. Shane testified that such fabrication was typical of battered women. The appellant also recounted to Dr. Shane occasions on which Rust would allegedly beat her, then beg her forgiveness and ply her with flowers and temporary displays of kindness. Dr. Shane was aware of the incidents described by Ezako about the appellant’s pointing a gun at Rust on two occasions and explained it as “an issue for trying to defend herself. She was afraid that she would be assaulted”. The appellant denied to Dr. Shane that she had homicidal fantasies about Rust and mentioned that she had smoked some marijuana on the night in question.

These facts were related by Dr. Shane in the course of his testimony.

The appellant was acquitted by a jury but the verdict was overturned by a majority of the Manitoba Court of Appeal and the case sent back for retrial. …

3. Relevant legislation

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

34.(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes, and
(b) he believes on reasonable and probable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

4. Issues on appeal

It should be noted that two bases for ordering a new trial are implicit in the reasons of the majority of the Court of Appeal. In finding that “absent the evidence of Dr. Shane, it is unlikely that the jury, properly instructed, would have accepted the accused’s plea of self-defence” the Court of Appeal suggests that the evidence of Dr. Shane ought to have been excluded entirely. The alternative ground for allowing the Crown’s appeal was that Dr. Shane’s testimony was properly admitted but the trial judge’s instructions with respect to it were deficient. Thus, the issues before this court are as follows:

1. Did the majority of the Manitoba Court of Appeal err in concluding that the jury should have considered the plea of self-defence absent the expert evidence of Dr. Shane?
2. Did the majority of the Manitoba Court of Appeal err in holding that the trial judge’s charge to the jury with respect to Dr. Shane’s expert evidence did not meet the requirements set out by this court in Abbey thus warranting a new trial?

5. Analysis

(i) Admissibility of expert evidence

In Kelliher v. Smith, [1931] 4 D.L.R. 102 at p. 116, [1931] S.C.R. 672, this court adopted the principle that in order for expert evidence to be admissible “the subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge”. …

Where expert evidence is tendered in such fields as engineering or pathology, the paucity of the lay person’s knowledge is uncontentious. The long-standing recognition that psychiatric or psychological testimony also falls within the realm of expert evidence is predicated on the realization that in some circumstances the average person may not have sufficient knowledge of or experience with human behaviour to draw an appropriate inference from the facts before him or her. An example may be found in R. v. Lyons (1987), 37 C.C.C. (3d) 1, 44 D.L.R. (4th) 193, [1987] 2 S.C.R. 309, in which this court approved the use of psychiatric testimony in dangerous offender applications. At p. 48 La Forest J. remarks that “psychiatric evidence is clearly relevant to the issue whether a person is likely to behave in a certain way and, indeed, is probably relatively superior in this regard to the evidence of other clinicians and lay persons”.

The need for expert evidence in these areas can, however, be obfuscated by the belief that judges and juries are thoroughly knowledgeable about “human nature” and that no more is needed. They are, so to speak, their own experts on human behaviour. This, in effect, was the primary submission of the Crown to this court.

The bare facts of this case, which I think are amply supported by the evidence, are that the appellant was repeatedly abused by the deceased but did not leave him (although she twice pointed a gun at him), and ultimately shot him in the back of the head as he was leaving her room. The Crown submits that these facts disclose all the information a jury needs in order to decide whether or not the appellant acted in self-defence. I have no hesitation in rejecting the Crown’s submission.

Expert evidence on the psychological effect of battering on wives and common law partners must, it seems to me, be both relevant and necessary in the context of the present case. How can the mental state of the appellant be appreciated without it? The average member of the public (or of the jury) can be forgiven for asking: Why would. a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called “battered wife syndrome”. We need help to understand it and help is available from trained professionals.

The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recent years has revealed both its prevalence and its horrific impact on women from all walks of life. Far from protecting women from it the law historically sanctioned the abuse of women within marriage as an aspect of the husband’s ownership of his wife and his “right” to chastise her. One need only recall the centuries-old law that a man is entitled to beat his wife with a stick “no thicker than his thumb”.

Laws do not spring out of a social vacuum. The notion that a man has a right to “discipline” his wife is deeply rooted in the history of our society. The woman’s duty was to serve her husband and to stay in the marriage at all costs “till death do us part” and to accept as her due any “punishment” that was meted out for failing to please her husband. One consequence of this attitude was that “wife battering” was rarely spoken of, rarely reported, rarely prosecuted, and even more rarely punished. Long after society abandoned its formal approval of spousal abuse, tolerance of it continued and continues in some circles to this day.

Fortunately, there has been a growing awareness in recent years that no man has a right to abuse any woman under any circumstances. Legislative initiatives designed to educate police, judicial officers and the public, as well as more aggressive investigation and charging policies all signal a concerted effort by the criminal justice system to take spousal abuse seriously. However, a woman who comes before a judge or jury with the claim that she has been battered and suggests that this may be a relevant factor in evaluating her subsequent actions still faces the prospect of being condemned by popular mythology about domestic violence. Either she was not as badly beaten as she claims or she would have left the man long ago. Or, if she was battered that severely, she must have stayed out of some masochistic enjoyment of it.

Expert testimony on the psychological effects of battering have been admitted in American courts in recent years. In State v. Kelly, 478 A.2d 364 at p. 378 (1984), the New Jersey Supreme Court commended the value of expert testimony in these terms:

It is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors’ logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge.
The court concludes at p. 379 that the battering relationship is “subject to a large group of myths and stereotypes”. As such, it is “beyond the ken of the average juror and thus is suitable for explanation through expert testimony”. I share that view.

(ii) The relevance of expert testimony to the elements of self-defence

In my view, there are two elements of the defense under s. 34(2) of the Code which merit scrutiny for present purposes. The first is the temporal connection in s. 34(2)(a) between the apprehension of death or grievous bodily harm and the act allegedly taken in self-defence. Was the appellant “under reasonable apprehension of death or grievous bodily harm” from Rust as he was walking out of the room? The second is the assessment in s. 34(2)(b) of the magnitude of the force used by the accused. Was the accused’s belief that she could not “otherwise preserve herself from death or grievous bodily harm” except by shooting the deceased based “on reasonable grounds”?

The feature common to both para. (a) and para. (b) of s. 34(2) is the imposition of an objective standard of reasonableness on the apprehension of death and the need to repel the assault with deadly force. In Reilly v. The Queen (1984), 15 C.C.C. (3d) 1 at pp. 7-8, 13 D.L.R. (4th) 161, [1984] 2 S.C.R. 396, this court considered the interaction of the objective and subjective components of s. 34(2):

Section 34(2) places in issue the accused’s state of mind at the time he caused death. The subsection can only afford protection to the accused if he apprehended death or grievous bodily harm from the assault he was repelling and if he believed he could not preserve himself from death or grievous bodily harm otherwise than by the force he used. None the less, his apprehension must be a reasonable one and his belief must be based upon reasonable and probable grounds. The subsection requires that the jury consider, and be guided by, what they decide on the evidence was the accused’s appreciation of the situation and his belief as to the reaction it required, so long as there exists an objectively verifiable basis for his perception.

Since s. 34(2) places in issue the accused’s perception of the attack upon him and the response required to meet it, the accused may still be found to have acted in self-defence even if he was mistaken in his perception. Reasonable and probable grounds must still exist for this mistaken perception in the sense that the mistake must have been one which an ordinary man using ordinary care could have made in the same circumstances. (Emphasis in original.)

If it strains credulity to imagine what the “ordinary man” would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to the world inhabited by the hypothetical “reasonable man”.

I find the case of State v. Wanrow, 559 P.2d 548 (1977), helpful in illustrating how the factor of gender can be germane to the assessment of what is reasonable. In Wanrow, the Washington Supreme Court addressed the standard by which a jury ought to assess the reasonableness of the female appellant’s use of a gun against an unarmed intruder. The court pointed out that the appellant had reason to believe that the intruder had molested her daughter in the past and was coming back for her son. The appellant was a 5 ft., 4 in. woman with a broken leg. The assailant was 6 ft., 2 in. and intoxicated. The court first observed, at p. 558, s that “in our society women suffer from a conspicuous lack of access to training in and the means of developing those skills necessary to effectively repel a male assailant without resorting to the use of deadly weapons”. Later it found that the trial judge erred in his instructions to the jury by creating the impression that the objective standard of reasonableness to be applied to the accused was that of an altercation between two men. At p. 559, the court makes the following remarks which I find apposite to the case before us:

The respondent was entitled to have the jury consider her actions in the light of her own perceptions of the situation, including those perceptions which were the product of our nation’s “long and unfortunate history of sex discrimination.” Until such time as the effects of that history are eradicated, care must be taken to assure that our self-defense instructions afford women the right to have their conduct judged in light of the individual physical handicaps which are the product of sex discrimination. To fail to do so is to deny the right of the individual woman involved to trial by the same rules which are applicable to male defendants.

I turn now to a consideration of the specific components of self-defence under s. 34(2) of the Criminal Code.

A. Reasonable apprehension of death

Section 34(2)(a) requires that an accused who intentionally causes death or grievous bodily harm in repelling an assault is justified if he or she does so “under reasonable apprehension of death or grievous bodily harm”. In the present case, the assault precipitating the appellant’s alleged defensive act was Rust’s threat to kill her when everyone else had gone.

It will be observed that s. 34(2)(a) does not actually stipulate that the accused apprehend imminent danger when he or she acts. Case-law has, however, read that requirement into the defense: see Reilly v. The Queen, supra; R. v. Baxter (1975), 27 C.C.C. (2d) 96, 33 C.R.N.S. 22 (Ont. C.A.); R. v. Bogue (1976), 30 C.C.C. (2d) 403, 70 D.L.R. (3d) 603, 13 O.R. (2d) 272 (Ont. C.A.). The sense in which “imminent” is used conjures up the image of “an uplifted knife” or a pointed gun. The rationale for the imminence rule seems obvious. The law of self-defence is designed to ensure that the use of defensive force is really necessary. It justifies the act because the defender reasonably believed that he or she had no alternative but to take the attacker’s life. If there is a significant time interval between the original unlawful assault and the accused’s response, one tends to suspect that the accused was motivated by revenge rather than self-defence. In the paradigmatic case of a one-time bar-room brawl between two men of equal size and strength, this inference makes sense. How can one feel endangered to the point of firing a gun at an unarmed man who utters a death threat, then turns his back and walks out of the room? One cannot be certain of the gravity of the threat or his capacity to carry it out. Besides, one can always take the opportunity to flee or to call the police. If he comes back and raises his fist, one can respond in kind if need be. These are the tacit assumptions that underlie the imminence rule.

All of these assumptions were brought to bear on the respondent in R. v. Whynot (1983), 9 C.C.C. 449, 37 C.R. (3d) 198, 61 N.S.R. (2d) 33 (C.A.). The respondent, Jane Stafford, shot her sleeping common law husband as he lay passed out in his truck. The evidence at trial indicated that the deceased “dominated the household and exerted his authority by striking and slapping the various members and from time to time administering beatings to Jane Stafford and the others” (at p. 452). The respondent testified that the deceased threatened to kill all of the members of her family, one by one, if she tried to leave him. On the night in question he threatened to kill her son. After he passed out the respondent got one of the many shotguns kept by her husband and shot him. The Nova Scotia Court of Appeal held that the trial judge erred in leaving s. 37 (preventing assault against oneself or anyone under one’s protection) with the jury. The court stated at p. 464:

I do not believe that the trial judge was justified in placing s. 37 of the Code before the jury any more than he would have been justified in giving them s. 34. Under s. 34 the assault must have been underway and unprovoked, and under s. 37 the assault must be such that it is necessary to defend the person assaulted by the use of force. No more force may be used than necessary to prevent the assault or the repetition of it. In my opinion, no person has the right in anticipation of an assault that may or may not happen, to apply force to prevent the imaginary assault.

The implication of the court’s reasoning is that it is inherently unreasonable to apprehend death or grievous bodily harm unless and until the physical assault is actually in progress, at which point the victim can presumably gauge the requisite amount of force needed to repel the attack and act accordingly. In my view, expert testimony can cast doubt on these assumptions as they are applied in the context of a battered wife’s efforts to repel an assault.

The situation of the appellant was not unlike that of Jane Stafford in the sense that she too was routinely beaten over the course of her relationship with the man she ultimately killed. According to the testimony of Dr. Shane these assaults were not entirely random in their occurrence. The following exchange during direct examination elicited a discernible pattern to the abuse:

Q. How did they react during the tension that preceded the beatings? How would her. . .
A. Well, typically before a beating there’s usually some verbal interchange and there are threats and typically she would feel, you know, very threatened by him and for various reasons.
He didn’t like the way she dressed or if she—didn’t like the way she handled money or she wasn’t paying him enough attention or she was looking at other men, all sorts of reasons, and she would be defending herself, trying to placate him, which was typical, saying, you know, trying to calm him down, trying to soothe him, you know, so nothing violent would happen and sometimes it would work. You know, as people’s experiences indicated or as people who write about this process, if you will, have indicated.
But often, as reflected by what she has told me, and the information I have from other people, such as her mother, often it would fail and she would end up being beaten and assaulted.
Q. And that would be followed by this forgiveness state?
A. It typically would be followed by, you know, this make-up period.

Earlier in his testimony Dr. Shane explained how this “make-up” period would be characterized by contrite and affectionate behaviour by Rust:
In this particular case she documented many times, after he would beat her, he would send her flowers and he would beg her for forgiveness and he would love her and then the relationship would come back to a sense of equilibrium, if you will . . . But then, because of the nature of the personalities, it would occur again.

The cycle described by Dr. Shane conforms to the Walker Cycle Theory of Violence named for clinical psychologist Dr. Lenore Walker, the pioneer researcher in the field of the battered-wife syndrome. Dr. Shane acknowledged his debt to Dr. Walker in the course of establishing his credentials as an expert at trial. Dr. Walker first describes the cycle in the book, The Battered Woman, (1979). In her 1984 book, The Battered Woman Syndrome, Dr. Walker reports the results of a study involving 400 battered women. Her research was designed to test empirically the theories expounded in her earlier book. At pp. 95-6 of The Battered Woman Syndrome, she summarizes the Cycle Theory as follows:

A second major theory that was tested in this project is the Walker Cycle Theory of Violence (Walker, 1979). This tension reduction theory states that there are three distinct phases associated in a recurring battering cycle: (1) tension building, (2) the acute battering incident, and (3) loving contrition. During the first phase, there is a gradual escalation of tension displayed by discrete acts causing increased friction such as name calling, other mean intentional behaviors, and/or physical abuse. The batterer expresses dissatisfaction and hostility but not in an extreme or maximally explosive form. The woman attempts to placate the batterer, doing what she thinks might please him, calm him down, or at least, what will not further aggravate him. She tries not to respond to his hostile actions and uses general anger reduction techniques. Often she succeeds for a little while which reinforces her unrealistic belief that she can control this man . . .

The tension continues to escalate and eventually she is unable to continue controlling his angry response pattern. “Exhausted from the constant stress, she usually withdraws from the batterer, fearing she will inadvertently set off an explosion. He begins to move more oppressively toward her as he observes her withdrawal . . . Tension between the two becomes unbearable” (Walker, 1979, p. 59). The second phase, the acute battering incident, becomes inevitable without intervention. Sometimes, she precipitates the inevitable explosion so as to control where and when it occurs, allowing her to take better precautions to minimize her injuries and pain.

“Phase two is characterized by the uncontrollable discharge of the tensions that have built up during phase one” (p. 59). The batterer typically unleashes a barrage of verbal and physical aggression that can leave the woman severely shaken and injured. In fact, when injuries do occur it usually happens during this second phase. It is also the time police become involved, if they are called at all. The acute battering phase is concluded when the batterer stops, usually bringing with its cessation a sharp physiological reduction in tension. This in itself is naturally reinforcing. Violence often succeeds because it does work.

In phase three which follows, the batterer may apologize profusely, try to assist his victim, show kindness and remorse, and shower her with gifts and/or promises. The batterer himself may believe at this point that he will never allow himself to be violent again. The woman wants to believe the batterer and, early in the relationship at least, may renew her hope in his ability to change. This third phase provides the positive reinforcement for remaining in the relationship, for the woman. In fact, our results showed that phase three could also be characterized by an absence of tension or violence, and no observable loving-contrition behaviour, and still be reinforcing for the woman.

Dr. Walker defines a battered woman as a woman who has gone through the battering cycle at least twice. As she explains in her introduction to The Battered Woman, at p. xv: “Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.”

Given the relational context in which the violence occurs, the mental state of an accused at the critical moment she pulls the trigger cannot be understood except in terms of the cumulative effect of months or years of brutality. As Dr. Shane explained in his testimony, the deterioration of the relationship between the appellant and Rust in the period immediately preceding the killing led to feelings of escalating terror on the part of the appellant:

But their relationship some weeks to months before was definitely escalating in terms of tension and in terms of the discordant quality about it. They were sleeping in separate bedrooms. Their intimate relationship was lacking and things were building and building and to a point, I think, where it built to that particular point where she couldn’t—she felt so threatened and so overwhelmed that she had to—that she reacted in a violent way because of her fear of survival and also because, I think because of her, I guess, final sense that she was—that she had to defend herself and her own sense of violence towards this man who had really desecrated her and damaged her for so long.

Another aspect of the cyclical nature of the abuse is that it begets a degree of predictability to the violence that is absent in an isolated violent encounter between two strangers. This also means that it may in fact be possible for a battered spouse to accurately predict the onset of violence before the first blow is struck, even if an outsider to the relationship cannot. Indeed, it has been suggested that a battered woman’s knowledge of her partner’s violence is so heightened that she is able to anticipate the nature and extent (though not the onset) of the violence by his conduct beforehand. In her article “Potential Uses for Expert Testimony: Ideas Toward the Representation of Battered Women Who Kill”, 9 Women’s Rights Law Reporter 227 (1986),psychologist Julie Blackman describes this characteristic at p. 229:

Repeated instances of violence enable battered women to develop a continuum along which they can “rate” the tolerability or survivability of episodes of their partner’s violence. Thus, signs of unusual violence are detected. For battered women, this response to the ongoing violence of their situations is a survival skill. Research shows that battered women who kill experience remarkably severe and frequent violence relative to battered women who do not kill. They know what sorts of danger are familiar and which are novel. They have had myriad opportunities to develop and hone their perceptions of their partner’s violence. And, importantly, they can say what made the final episode of violence different from the others: they can name the features of the last battering that enabled them to know that this episode would result in life-threatening action by the abuser.

At p. 236, Dr. Blackman relates the role of expert testimony in cases where a battered woman kills her batterer while he is sleeping (or not actively posing a threat her) and pleads self-defence:

Perhaps the single most important idea conveyed by expert testimony in such a case pertains to the notion that a battered woman, because of her extensive experience with her abuser’s violence, can detect changes or signs of novelty in the pattern of normal violence that connote increased danger. Support for this assertion must come from the woman herself, in her spontaneous, self-initiated description of the events that precede her action against the abuser. Only then can testimony from an expert offer scientific support for the idea that such a danger detection process can occur and can be expected to be as accurate as the “reasonable man” standard would imply.

Of course, as Dr. Blackman points out, it is up to the jury to decide whether the distinction drawn between “typical” violence and the particular events the accused perceived as “life threatening” is compelling. According to the appellant’s statement to police, Rust actually handed her a shotgun and warned her that if she did not kill him, he would kill her. I note in passing a  remarkable observation made by Dr. Walker in her 1984 study, The Battered Woman Syndrome. Writing about the fifty battered women she interviewed who had killed their partners, she comments at p. 40:

Most of the time the women killed the men with a gun, usually one of several that belonged to him. Many of the men actually dared or demanded the woman use the gun on him first, or else he said he’d kill her with it. (Emphasis added.)

Where evidence exists that an accused is in a battering relationship, expert testimony can assist the jury in determining whether the accused had a “reasonable” apprehension of death when she acted by explaining the heightened sensitivity of a battered woman to her partner’s acts. Without such testimony I am skeptical that the average fact-finder would be capable of appreciating why her subjective fear may have been reasonable in the context of the relationship. After all, the hypothetical “reasonable man” observing only the final incident may have been unlikely to recognize the batterer’s threat as potentially lethal. Using the case at bar as an example the “reasonable man” might have thought, as the majority of the Court of Appeal seemed to, that it was unlikely that Rust would make good on his threat to kill the appellant that night because they had guests staying overnight.

The issue is not, however, what an outsider would have reasonably perceived but what the accused reasonably perceived, given her situation and her experience.

Even accepting that a battered woman may be uniquely sensitized to danger from her batterer, it may yet be contended that the law ought to require her to wait until the knife is uplifted, the gun pointed or the fist clenched before her apprehension is deemed reasonable. This would allegedly reduce the risk that the woman is mistaken in her fear, although the law does not require her fear to be correct, only reasonable. In response to this contention, I need only point to the observation made by Huband J.A. that the evidence showed that when the appellant and Rust physically fought, the appellant “invariably got the worst of it”. I do not think it is an unwarranted generalization to say that due to their size, strength, socialization and lack of training, women are typically no match for men in hand-to-hand combat. The requirement imposed in Whynot that a battered woman wait until the physical assault is “underway” before her apprehensions can be validated in law would, in the words of an American court, be tantamount to sentencing her to “murder by installment”: State v. Gallegos, 719 P.2d 1268 at p. 1271 (1986) (N.M.). I share the view expressed by M. J. Willoughby in “Rendering Each Woman Her Due: Can a Battered Woman Claim Self-Defense When She Kills Her Sleeping Batterer” (1989), 38 Kan. L. Rev. 169 at p. 184 (1989), that “society gains nothing, except perhaps the additional risk that the battered woman will herself be killed, because she must wait until her abusive husband instigates another battering episode before she can justifiably act”.

B. Lack of alternatives to self-help

Section 34(2) requires an accused who pleads self-defence to believe “on reasonable grounds” that it is not possible to otherwise preserve him or herself from death or grievous bodily harm. The obvious question is if the violence was so intolerable, why did the appellant not leave her abuser long ago? This question does not really go to whether she had an alternative to killing the deceased at the critical moment. Rather, it plays on the popular myth already referred to that a woman who says she was battered yet stayed with her batterer was either not as badly beaten as she claimed or else she liked it. Nevertheless, to the extent that her failure to leave the abusive relationship earlier may be used in support of the proposition that she was free to leave at the final moment, expert testimony can provide useful insights. Dr. Shane attempted to explain in his testimony how and why, in the case at bar, the appellant remained with Rust:

She had stayed in this relationship, I think, because of the strange, almost unbelievable, but yet it happens, relationship that sometimes develops between people who develop this very disturbed, I think, very disturbed quality of a relationship. Trying to understand it, I think, isn’t always easy and there’s been a lot written about it recently, in the recent years, in psychiatric literature. But basically it involves two people who are involved in what appears to be an attachment which may have sexual or romantic or affectionate overtones.

And the one individual, and it’s usually the women in our society, but there have been occasions where it’s been reversed, but what happens is the spouse who becomes battered, if you will, stays in the relationship probably because of a number of reasons.

One is that the spouse gets beaten so badly—so badly—that he or she loses the motivation to react and becomes helpless and becomes powerless. And it’s also been shown sometimes, you know, in—not that you can compare animals to human beings, but in laboratories, what you do if you shock an animal, after a while it can’t respond to a threat of its life. It becomes just helpless and lies there in an amotivational state, if you will, where it feels there’s no power and there’s no energy to do anything.

So in a sense it happens in human beings as well. It’s almost like a concentration camp, if you will. You get paralyzed with fear.

The other thing that happens often in these types of relationships with human beings is that the person who beats or assaults, who batters, often tries—he makes up and begs for forgiveness. And this individual, who basically has a very disturbed or damaged self-esteem, all of a sudden feels that he or she—we’ll use women in this case because it’s so much more common—the spouse feels that she again can do the spouse a favour and it can make her feel needed and boost her self-esteem for a while and make her feel worthwhile and the spouse says he’ll forgive her and whatnot.

Apparently, another manifestation of this victimization is a reluctance to disclose to others the fact or extent of the beatings. For example, the hospital records indicate that on each occasion the appellant attended the emergency department to be treated for various injuries she explained the cause of those injuries as accidental. Both in its address to the jury and in its written submissions before this court the Crown insisted that the appellant’s injuries were as consistent with her explanations as with being battered and, therefore, in the words of Crown counsel at trial: “The myth is, in this particular case, that Miss Lavallee was a battered spouse.” In his testimony Dr. Shane testified that the appellant admitted to him that she lied to hospital staff and others about the cause of her injuries. In Dr. Shane’s opinion this was consistent with her over-all feeling of being trapped and helpless:

. . . she would never say that she’d been abused by the man with whom she was living and that usually happened because of this whole process. He would beg her. I mean she would tell me that on occasions he would beat her and then the police would be called by, I think, on one occasion a neighbour and he got down on his knees and he begged forgiveness and he loved her and he felt so terrible about it. And so this would be a typical scenario. Whenever she would go to the hospital, that he would attempt to, I think, attempt to have her forgive him and he would love her so much more.

Again she would feel so needed and this would start the whole cycle over again.

And he would also blackmail her on occasions. She had an abortion when she was in the early part of their relationship and he would blackmail her saying, “You know, I will tell your parents that you were a baby killer”, et cetera.

But basically the manner in which, I think, she would be prevented from telling the doctors or other people about the beatings was related to the fact that this whole process would repeat itself. He would want forgiveness and tell her he would love her and it would never happen again and she would feel grateful. She would feel a little loved. It would help her self-esteem again and she would feel a little safer for a while too. It would allow her to have a sense, a window of security for a period because she felt so trapped in this relationship.

The account given by Dr. Shane comports with that documented in the literature. Reference is often made to it as a condition of “learned helplessness”, a phrase coined by Dr. Charles Seligman, the psychologist who first developed the theory by experimenting on animals in the manner described by Dr. Shane in his testimony. A related theory used to explain the failure of women to leave battering relationships is described by psychologist and lawyer, Charles Patrick Ewing, in his book, Battered Women Who Kill, (1987). Ewing describes a phenomenon labelled “traumatic bonding” that has been observed between hostages and captors, battered children and their parents, concentration camp prisoners and guards, and batterers and their spouses. According to the research cited by Ewing there are two features common to the social structure in each of these apparently diverse relationships. At pp. 19-20, he states:

The first of these common features is an imbalance of power “wherein the maltreated person perceives himself or herself to be subjugated or dominated by the other”. The less powerful person in the relationship—whether battered woman, hostage, abused child, cult follower, or prisoner—becomes extremely dependent upon, and may even come to identify with, the more powerful person. In many cases, the result of such dependency and identification is that the less powerful, subjugated persons become “more negative in their self-appraisal, more incapable of fending for themselves, and thus more in need of the high power person.” As this “cycle of dependency and lowered self-esteem” is repeated over time, the less powerful person develops a “strong affective bond” to the more powerful person in the abusive relationship.

The second feature common to the relationships between battered woman and batterer, hostage and captor, battered child and abusive parent, cult follower and leader, and prisoner and guard is the periodic nature of the abuse. In each relationship, the less powerful person is subjected to intermittent periods of abuse, which alternate with periods during which the more powerful, abusive person treats the less powerful person in a “more normal and acceptable fashion.”…

Given the clear power differential between battered women and their batterers and the intermittent nature of physical and psychological abuse common to battering relationships, it seems fair to conclude . . . that many battered women are psychologically unable to leave their batterers because they have developed a traumatic bond with them. (Citations omitted.)

This strong “affective bond” may be helpful in explaining not only why some battered women remain with their abusers but why they even profess to love them. Of course, as Dr. Ewing adds, environmental factors may also impair the woman’s ability to leave—lack of job skills, the presence of children to care for, fear of retaliation by the man, etc., may each have a role to play in some cases.

This is not to say that in the course of a battering relationship a woman may never attempt to leave her partner or try to defend herself from assault. In The Battered Woman Syndrome, Dr. Walker notes at p. 30 that women may sometimes “react to men’s violence against them by striking back, but their actions are generally ineffective at hurting or stopping the men. They may be effective in controlling the level of the man’s violence against them”. In the case at bar, Dr. Shane was aware that the appellant had pointed a gun at Rust in the past. In direct examination he stated:

And what would also happen from time to time is that there would be moments where she would attempt to hit back to defend herself or she may take a weapon to defend herself in order to prevent herself from being harmed or even, when the underlying rage may accumulate, if you will, the feeling that she had to do something to him in order to survive, in order to defend herself.

The same psychological factors that account for a woman’s inability to leave a battering relationship may also help to explain why she did not attempt to escape at the moment she perceived her life to be in danger. The following extract from Dr. Shane’s testimony on direct examination elucidates this point:

Q. Now, we understand from the evidence that on this night she went—I think you’ve already described it in your evidence—and hid in the closet?
A. Yes.
Q. Can you tell the jury why she, for instance, would stay in that house if she had this fear? Why wouldn’t she so [sic] someplace else? Why would she have to hide in the closet in the same house?
A. Well, I think this is a reflection of what I’ve been talking about, this ongoing psychological process, her own psychology and the relationship, that she felt trapped. There was no out for her, this learned helplessness, if you will, the fact that she felt paralyzed, she felt tyrannized. She felt, although there were obviously no steel fences around, keeping her in, there were steel fences in her mind which created for her an incredible barrier psychologically that prevented her from moving out. Although she had attempted on occasion, she came back in a magnetic sort of a way. And she felt also that she couldn’t expect anything more. Not only this learned helplessness about being beaten, beaten where her motivation is taken away, but her whole sense of herself. She felt this victim mentality, this concentration camp mentality if you will, where she could not see herself be in any other situation except being tyrannized, punished and crucified physically and psychologically.

I emphasize at this juncture that it is not for the jury to pass judgment on the fact that an accused battered woman stayed in the relationship. Still less is it entitled to conclude that she forfeited her right to self-defence for having done so. I would also point out that traditional self-defence doctrine does not require a person to retreat from her home instead of defending herself: R. v. Antley, [1964] 2 C.C.C. 142, [1964] 1 O.R. 545, 42 C.R. 384 (C.A.). A man’s home may be his castle but it is also the woman’s home even if it seems to her more like a prison in the circumstances.

If, after hearing the evidence (including the expert testimony), the jury is satisfied that the accused had a reasonable apprehension of death or grievous bodily harm and felt incapable of escape, it must ask itself what the “reasonable person” would do in such a situation. The situation of the battered woman as described by Dr. Shane strikes me as somewhat analogous to that of a hostage. If the captor tells her that he will kill her in three days’ time, is it potentially reasonable for her to seize an opportunity presented on the first day to kill the captor or must she wait until he makes the attempt on the third day? I think the question the jury must ask itself is whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by Rust that night except by killing him first was reasonable. To the extent that expert evidence can assist the jury in making that determination, I would find such testimony to be both relevant and necessary.

In light of the foregoing discussion I would summarize as follows the principles upon which expert testimony is properly admitted in cases such as this:

  1. Expert testimony is admissible to assist the fact-finder in drawing inferences in areas where the expert has relevant knowledge or experience beyond that of the lay person.
  2. It is difficult for the lay person to comprehend the battered-wife syndrome. It is commonly thought that battered women are not really beaten as badly as they claim; otherwise they would have left the relationship. Alternatively, some believe that women enjoy being beaten, that they have a masochistic strain in them. Each of these stereotypes may adversely affect consideration of a battered woman’s claim to have acted in self-defence in killing her mate.
  3. Expert evidence can assist the jury in dispelling these myths.
  4. Expert testimony relating to the ability of an accused to perceive danger from her mate may go to the issue of whether she “reasonably apprehended” death or grievous bodily harm on a particular occasion.
  5. Expert testimony pertaining to why an accused remained in the battering relationship may be relevant in assessing the nature and extent of the alleged abuse.
  6. By providing an explanation as to why an accused did not flee when she perceived her life to be in danger, expert testimony may also assist the jury in assessing the reasonableness of her belief that killing her batterer was the only way to save her own life.

Quite apart from Dr. Shane’s testimony there was ample evidence on which the trial judge could conclude that the appellant was battered repeatedly and brutally by Kevin Rust over the course of their relationship. The fact that she may have exhibited aggressive behaviour on occasion or tried (unsuccessfully) to leave does not detract from a finding of systematic and relentless abuse. In my view, the trial judge did not err in admitting Dr. Shane’s expert testimony in order to assist the jury in determining whether the appellant had a reasonable apprehension of death or grievous bodily harm and believed on reasonable grounds that she had no alternative but to shoot Kevin Rust on the night in question.

Obviously the fact that the appellant was a battered woman does not entitle her to an acquittal. Battered women may well kill their partners other than in self-defence. The focus is not on who the woman is, but on what she did. In “The Meaning of Equality for Battered Women Who Kill Men in Self-Defense”, 8 Harv. Women’s. L.J. 121 at p. 149 (1985), Phyllis Crocker makes the point succinctly:

The issue in a self-defence trial is not whether the defendant is a battered woman, but whether she justifiably killed her husband. The defendant introduces testimony to offer the jury an explanation of reasonableness that is an alternative to the prosecution’s stereotypic explanations. It is not intended to earn her the status of a battered woman, as if that would make her not guilty.

The trial judge, to his credit, articulated the same principle when introducing Dr. Shane’s testimony in the course of his instructions to the jury. After referring to “the so-called battered-spouse syndrome”, he cautions:

Let me say at the outset that I think it is better that we try not to attach labels to this. It doesn’t matter what we call it. What is important is the evidence itself and how it impacts on the critical areas of the intent of the accused and the issue of self-defence.
Ultimately, it is up to the jury to decide whether, in fact, the accused’s perceptions and actions were reasonable. Expert evidence does not and cannot usurp that function of the jury. The jury is not compelled to accept the opinions proffered by the expert about the effects of battering on the mental state of victims generally or on the mental state of the accused in particular. But fairness and the integrity of the trial process demand that the jury have the opportunity to hear them.…

I would accordingly allow the appeal, set aside the order of the Court of Appeal, and restore the acquittal.



 

R. v. Deegan
Alberta Court of Appeal
[1979] 49 C.C.C. (2d) 417

HARRADENCE J.A:— …
In R. v. Stanley, supra, Branca, J.A., said at p. 226:

Ever since Semaynes Case (1605), 6 Co. Rep. 91a, at p. 91b, 77 E.R. 194, it was said: “That the house of every one is to him as his (a) castle and fortress as well for his defence against injury and violence as for his repose . . .”.

That is something that people who live in our country have been told to understand is the law of our land. The precept that a man’s home is his castle is as true today as it was then.

I am in complete agreement with this statement.

In R. v. Hussey (1924), 18 Cr.App.R. 160, Lord Hewart said at p. 161:

No sufficient notice had been given to appellant to quit his room, and therefore he was in the position of a man who was defending his house. In Archbold’s Criminal Pleading, Evidence and Practice, 26th ed. p. 887, it appears that: “In defence of a man’s house, the owner or his family may kill a trespasser who would forcibly dispossess him of it, in the same manner as he might, by law, kill in self-defence a man who attacks him personally; with this distinction, however, that in defending his home he need not retreat, as in other cases of self-defence, for that would be giving up his house to his adversary.” That is still the law, but not one word was said about that distinction in the summing-up, which proceeded on the foundation that the defence was the ordinary one of self-defence.

Even if the appellant were not in his home, I do not accept that retreat is imperative if a defence of self-defence is to be relied on; rather, I adopt the statement of Dixon, C.J., in R. v. Howe (1958), 100 C.L.R. 448 at pp. 462-3:

The view of the Supreme Court appears also to be correct as to the position which the modern law governing a plea of self-defence gives to the propriety of a person retreating in face of an assault or apprehended assault before resorting to violence to defend himself. The view which the Supreme Court has accepted is that to retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self-defence is to be made out.

Dixon, C.J., then referred to the judgment of Holmes, J., in Brown v. United States of America (1920), 256 U.S. 335 at p. 343:

Holmes J. pronounced upon the question in a way which one may well be content to adopt: “Rationally, the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth, it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground, and that if he kills him, he has not exceeded the bounds of lawful self-defence. That has been the decision of this court. Beard v. United States. Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety, or to disable his assailant rather than to kill him”: Brown v. United States of America.




R. v. Forde

Ontario Court of Appeal

[2011] ONCA 592

 

H.S. LaForme J.A. (Feldman and Karakatsanis JJ.A. concurring):

 

Overview

The appellant admitted killing Clive McNabb, the former spouse of his common law partner, Carol Allamby. However, he testified that he killed McNabb in self-defence by stabbing him once with a knife after McNabb moved towards him with an open knife. The appellant further testified that McNabb had violently attacked him on two previous occasions.

The appellant was charged with second-degree murder. Following a trial by jury, he was acquitted on the murder charge but convicted of manslaughter. The principal issue at trial was whether the Crown proved beyond a reasonable doubt that the appellant did not act in lawful self-defence. Implicit in the jury’s verdict is a rejection of the appellant’s position that he killed McNabb in self-defence.

The principal issue on appeal is whether the trial judge erred in various alleged respects in his jury instructions concerning the elements of self-defence in s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46. I conclude that the trial judge erred in one respect: by permitting the jury to consider the appellant’s failure to retreat from his home in assessing the reasonableness of the appellant’s response to the threat he perceived from McNabb. That error was fatal in my view, and thus a new trial is required.

 

Background

The appellant and Allamby were involved in a long-term relationship. ...The stabbing of McNabb took place in the bedroom of their apartment.

The common link between the appellant and McNabb was Allamby, who, in addition to being the appellant’s common law wife, was also the mother of McNabb’s two children. At trial, the defence led evidence of two prior incidents of violent behaviour by McNabb against the appellant. One of the incidents took place approximately two-and- one-half years prior to the stabbing; the other approximately one month prior. This evidence was tendered by the defence in support of the assertion that McNabb had a propensity for violence against the appellant and was the aggressor in the fatal confrontation between them. ....

McNabb...and the appellant...both dealt in drugs. Indeed, McNabb supplied the appellant and Allamby with drugs and was allowed to use their premises as a base to sell cocaine. The appellant acknowledged his own drug-dealing activities... He testified to keeping several knives in various rooms, specifically the bedroom and bathroom of the apartment, to be used in the event that trouble arose during drug transactions.

The evidence at trial established that on the day of the killing an acquaintance of the appellant and Allamby named Lori Mazzei mentioned to McNabb that a man named Joe Grasso was at the appellant’s and Allamby’s apartment. Grasso apparently owed McNabb a drug debt. McNabb went to the appellant’s apartment with the apparent intention of collecting his money from Grasso. The stabbing occurred in the bedroom of the apartment. McNabb went into the bedroom to confront Grasso about the drug debt. Allamby reproached McNabb for entering her bedroom and an argument occurred between them. The defence evidence was that McNabb either pushed or slapped Allamby.

The appellant then entered the bedroom and, after he and McNabb began to argue, Allamby left the bedroom. The defence evidence was that McNabb pulled out a knife and threatened the appellant with it. The appellant then grabbed for a knife that was hidden in a closet and stabbed McNabb once, after which McNabb slumped to the floor.

When the police arrived at the front door of the apartment building, they were approached by Allamby and Mazzei, who let the officers into the building and led them to the apartment. The police found McNabb on the floor of the bedroom in a seated position with his back against a chair. He was unresponsive and had no pulse. ...A knife belonging to McNabb with his blood on the blade was found by the police on the floor near his body. The knife was in a closed position. The death of McNabb was caused by a single lethal stab wound to the chest.

 

Issues

For the first time on appeal, the appellant raises several issues concerning the trial judge’s charge on self-defence. The appellant submits that the trial judge committed three errors in the portion of his charge on the elements of the defence of self-defence under s. 34(2):

1.    The trial judge erred in asking the jury to consider whether the appellant was unlawfully assaulted.

2.    The trial judge erred in suggesting to the jury that self-defence was not available if the appellant was the initial aggressor.

3.    The trial judge erred in permitting the jury to consider whether the appellant ought to have retreated from his own home as a factor in assessing the availability of self-defence under s. 34(2).

...I would give effect to the appellant’s third argument concerning the trial judge’s instructions on s. 34(2). In particular, I conclude that the trial judge erred in his instructions on s. 34(2) of the Criminal Code by permitting the jury to consider whether the appellant ought to have retreated from his own home. In my view, the authorities establish that, in the circumstances of this case, “retreat” was not a proper factor for the jury to consider. That the jury was allowed to do so amounts to an error in law that requires a new trial.

 

Analysis

Instructions on self-defence under s. 34(2)

Self-defence under s. 34(2) requires proof of three elements: (i) an unlawful assault against the appellant; (ii) the appellant must have had a reasonable apprehension of a risk of death or grievous bodily harm; and (iii) the appellant must have reasonably believed that it was necessary to cause harm or death to the victim in order to avoid the same fate: see R. v Cinous, [2002] 2 S.C.R. 3, at para. 93...

With respect to the third element under s. 34(2), the appellant argues that the Crown should not have made the appellant’s ability to retreat a live issue. He says that the trial judge, having permitted the Crown to raise this issue, was required to clearly instruct the jury that the appellant had no obligation to retreat from his home. It is this issue that I conclude disposes of the appeal...

 

Ability to Retreat

Whether the appellant was able to retreat from his apartment was made a live issue by the Crown at trial. In cross-examination, the trial Crown explored the issue of the size of the appellant’s apartment and questioned him about how long it would have taken him to go from the bedroom to the front door. He replied:

A.    In seconds, I’d say seven seconds from my bedroom to the front door if that.

The following exchange then occurred in cross:

Q. And if you’re running out, I’m going to suggest it would probably take you --

A. A lot quicker.
Q. A couple of seconds? A. Yeah.

Q. And, again sir, um – and I know your answer is going to be: I couldn’t do that. But you had that option available to you because you’re on the outside of the bedroom. Correct?

A. Ma’am, yea, and he’s pulling it [the bedroom door] open. I got dress shoes on; he’s got running shoes on. As soon as the door – and my hallway – and you can see it from the video across there I could have fall. I’ve been stabbed before by this man; I’ve been attacked by this man. I’m not taking that chance of running out and he falling on top of me...

In his specific instructions on the third element of self-defence under s. 34(2), the trial judge told the jury:

Consider, as well, again the relative size, strength and positioning of Forde and McNabb, proximity of the two individuals, the suddenness of the assault by Clive McNabb, Mr. Forde’s evidence as to his state of mind when he stabbed Mr. McNabb. And the availability of other options for Cedric Forde to extricate him from the confrontation with Clive McNabb. And the likelihood of Mr. McNabb persisting in his attack. Those are all factors and questions you’ll consider. (Emphasis added.)

 

What the trial judge did not include in his instructions, which the appellant argues constitutes reversible error, is that retreat is not a required element of self-defence under s. 34(2), nor is it even a factor to consider when the accused is attacked in his own home...

The Crown concedes that there are two limitations on the issue of retreat: (i) retreat is not relevant where it is not a realistic option to the accused; and (ii) people are generally not expected to abandon their homes in order to avoid engaging in acts of self-defence. However, the Crown submits that while there is no specific duty or requirement to retreat in s. 34(2), the ability to retreat is nonetheless a factor that may be taken into account in considering whether the accused had no other means to preserve himself – including in cases where the attack occurs in the accused’s own home. According to the Crown, this factor is relevant to the reasonableness of the accused’s belief that he could not otherwise save himself in the circumstances as he perceived them to be.

 

Discussion

Retreat in the context of the law of self-defence reflects the principle that killing or seriously injuring another person should only be sanctioned as a last resort and should not be permitted if other reasonable options are available. However, it is well-established at common law that different considerations apply where a person is attacked in his or her own home. These considerations are encapsulated in the rather archaic maxim “a man’s home is his castle.” The origins of the so-called “castle doctrine” lie in Lord Coke’s statement in Semayne’s Case (1604), 77 E.R. 194 (K.B.), at p. 195:

That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.

The maxim that a man’s home is his castle has given rise to the principle that a person has the right to defend him or herself in his or her own home without the duty to retreat from the home in the face of an attack. As Cardozo J. put it in People v. Tomlins, 213 NY 240 (1914), at pp. 243:

It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the field and the highways, a fugitive from his own home.

 

Many states in the United States have enacted legislation reflecting the castle doctrine, while in other states, the castle doctrine is applied by the courts. ...In some states, the castle doctrine has been extended so as to abolish the duty to retreat even when a person is attacked outside of the home: see e.g., Fla. Stat. § 776.013(3).

In more recent English case law, on the other hand, while there is no specific requirement that a person must retreat in anticipation of an attack, the possibility of retreat is a factor for the jury to consider in assessing the reasonableness of self-defence even where the events take place in the accused’s own home: see R. v. Bird, [1985] 1 WLR 816 (C.A.); R. v. Zelda Mary M., [2007] EWCA Crim 376, at para. 28.

The rationale for not requiring a person to retreat when attacked or threatened in his or her own home is not difficult to discern. It was put this way by the Minnesota Supreme Court: “[T]he house has a peculiar immunity [in] that it is sacred for the protection of [a person’s] family.... Mandating a duty to retreat for defense of dwelling claims will force people to leave their homes by the back door while their family members are exposed to danger and their houses are burgled”: State v. Carothers, 594 NW (2d) 897 (Minn 1999), at pp. 900-901 (citations omitted).

Ontario jurisprudence has recognized that in a claim of self-defence, extraordinary circumstances exist when a person is on his or her own property. In R. v. Antley, [1964] 1 O.R. 545, the majority of this court held at para. 11 that an accused person who is assaulted while “on his own property” is not required to retreat from the home. Rather, “far from retreating he would have been entitled ... to use such force as was necessary to remove the complainant therefrom.”...

Martin J.A. in R. v. Ward (1978), 4 C.R. (3d) 190 (Ont. C.A.) briefly dealt with retreat in the case of a woman charged with murdering her spouse in the circumstances of repeated domestic assault. In a very brief oral decision, Martin J.A. stated at para. 5: “It is not correct to say as a matter of law that self-defence is only justified where there is no other reasonable means whereby a person can retreat.” ...

Martin J.A. did not indicate whether the events in Ward occurred in the appellant’s home. Indeed, his reasons do not specifically indicate whether a failure to retreat is a relevant item of evidence where the accused is attacked, or reasonably apprehends an attack, in his or her own home.

In R. v. Boyd (1999), 118 O.A.C. 85, this court reviewed a trial judge’s instruction on the third element of the defence of self-defence in s. 34(2) of the Criminal Code in the context of a fatal stabbing that occurred in the appellant’s own home. ... The Crown put to [the appellant] the suggestion that it would have been appropriate for him to flee out the back door while the deceased was in the house. The appellant resisted this suggestion. ...This court held at para. 13 that the trial judge ought to have told the jury that the appellant’s failure to retreat could not assist them in determining whether the appellant had reasonable grounds to believe he could not otherwise preserve himself from death or grievous bodily harm...

The issue of the relevance of retreat in the context of an attack in one’s own home has also been considered several times by the British Columbia Court of Appeal. In R. v. Proulx (1998), 127 C.C.C. (3d) 511, at paras. 45-46, the court referred to its prior case law, which established that an accused need not consider fleeing his or her own home when attacked there by an assailant:

... The law is clear that flight from one's own home is not a reasonable option for self- preservation, and that the defence of self-defence will still apply even if there is another way out of the house. The rationale is that one’s home is already one’s last line of defence against an assailant. ...

Further support for the view that retreating from one’s own home is not a factor for the jury to consider under s. 34(2) is found in the Supreme Court of Canada’s majority decision in R. v. Lavallee, [1990] 1 S.C.R. 852. In that case, the court considered the issue of retreat in the circumstances of a case of domestic abuse. More specifically, Lavallee considered the s. 34(2) requirement that a person who pleads self-defence must believe “on reasonable grounds” that it is not possible to otherwise preserve him or herself from death or grievous bodily harm. Wilson J. for the majority referred at p. 884 to: “the obvious question ... if the violence was so intolerable, why did the appellant not leave her abuser long ago?” In answering this question at pp. 888-889, she referred to the castle doctrine:

I emphasize at this juncture that it is not for the jury to pass judgment on the fact that an accused battered woman stayed in the relationship. Still less is it entitled to conclude that she forfeited her right to self-defence for having done so. I would also point out that traditional self-defence doctrine does not require a person to retreat from her home instead of defending herself: R. v. Antley (1963), 42 C.R. 384 (Ont. C.A.). A man's home may be his castle but it is also the woman's home even if it seems to her more like a prison in the circumstances...

 

Disposition

I would allow the appeal, quash the appellant’s conviction, and order a new trial.

 

R. v. Faid
[1983] 1 S.C.R. 265, [1983] S.C.J. 21
Supreme Court of Canada.

The judgment of the Court was delivered by
 DICKSON J.:
[A] verdict of manslaughter … is not available where an accused acting in self-defence, as described in s. 34 of the Code, causes a death by the use of an excess of force. I am still of that opinion. The position of the Alberta Court of Appeal that there is a “half-way” house outside s. 34 of the Code is, in my view, inapplicable to the Canadian codified system of criminal law, it lacks any recognizable basis in principle, would require prolix and complicated jury charges and would encourage juries to reach compromise verdicts to the prejudice of either the accused or the Crown. Where a killing has resulted from the excessive use of force in self-defence the accused loses the justification provided under s. 34. There is no partial justification open under the section. Once the jury reaches the conclusion that excessive force has been used the defence of self-defence has failed. It does not follow automatically, however, that the verdict must be murder. The accused has become responsible for a killing. He has no justification on the basis of self-defence, but unless it is shown that the killing was accompanied by the intent required under s. 212(a) {now s. 229} of the Code, it remains a killing without intent, in other words manslaughter. If the jury considers that excessive force has been used, and has resulted in a death, they must then ask themselves whether the accused, in causing the killing, possessed the intent described in s. 212(a) of the Code, that is,an intent to kill or cause bodily harm likely to cause death. If they are satisfied beyond a reasonable doubt that the intent was present, they should find the accused guilty of murder. However, in the event they found no such intent existed, or had a doubt as to its existence, they should convict of manslaughter. This conviction would rest upon the fact that an unlawful killing had been committed without the intent required to make it murder under s. 212(a).

 

R. v. Webers
[1994] O.J. No. 2767; 95 C.C.C. (3d) 334
Ontario Court of Justice - General Division
Owen Sound, Ontario

1     O'CONNOR J.:— On July 1st, 1992, a violent incident happened on the psychiatric floor of the Grey-Bruce Regional Health Centre. Henry Webers was speaking to Heather Boys, a friend who was being involuntarily held there. He was calming her down. He got her to put on her pyjamas. A "Code White" team of eight hospital staff and two Owen Sound police officers had assembled. They rushed into the room to forcibly restrain and medicate Ms. Boys. They were going to use leather straps to tie her to a bed. A nurse asked Mr. Webers to leave the room. He refused. He wanted to protect Ms. Boys. The police officers then attempted to remove him. A fracas ensued. The three large men wrestled and thrashed about the room and out into the hallway. When the dust had settled, Mr. Webers was in handcuffs, charged with obstruct police, two counts of assault police, assault police with intent to resist arrest and two counts of assault causing bodily harm. All three men were injured, one of the officers seriously….

4.         Was Henry Webers Justified in Resisting the Officers' Attempts to Remove Him?

44     Section 37 of the Criminal Code reads:

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the 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.

45     The defence argues that this section entitles Mr. Webers to use force to protect Ms. Boys from the assault that was being perpetrated on her. The defence says the force used against the officers to resist their attempts to remove him and then to arrest him was, therefore, justified, as it was being used in the defence of Ms. Boys.…
46     The Crown argues that Ms. Boys was not a person under Mr. Webers' protection and that s. 37 does not apply to this situation. The defence says the close family-like relationship between them comes within the scope of the words "under his protection". There is very little jurisprudence defining this phrase. However, there is substantial case law extending the common law self-defence principles to the protection of "friends": R. v. H. (T.J.) (18 January 1991) (B.C.C.A.) [unreported] and R. v. F.R.B. (21 June 1993) (B.C.C.A.) [unreported]; it has been extended to relatives in The Queen v. Elizabeth Lillian Duffy [1965] Cr. App. Cases 68, followed in Canada in Gambriell v. Caparelli (1974) 7 O.R. (2d) 205; it has been extended to "another" in Gambriell v. Caparelli, supra, where Carter, Co. Ct. J., says at p. 210:

It would appear therefore that, where a person in intervening to rescue another holds an honest (though mistaken) belief that the other person is in imminent danger of injury, he is justified in using force, provided that such force is reasonable; and the necessity for intervention and the reasonableness of the force employed are questions to be decided by the trier of fact.

It has been extended to "even as between strangers" in Duffy, supra, where Edmund Davies, J., says at p. 71:

Quite apart from any special relations between the person attacks and his rescuer, there is a general liberty, even as between strangers, to prevent a felony.

It has been extended to a person "like a son" in The Queen v. Colin Chisam [1963] Cr. App. Cases 180, that being the English Court of Appeal, again followed in Canada in Gambriell v. Caparelli, supra; and it has been extended to a "stranger" in R. v. Barkhouse (1983) 58 N.S.R. (2d) 393, where the accused came to the aid of a motorist who was struggling with a police officer. The court acquitted the accused of assault of a police officer in the execution of his duty, holding that the attempted seizure of the motorist's vehicle by the police officer was unreasonable under s. 8 of the Charter and, therefore, the officer was not engaged in the execution of his lawful duty. The accused was entitled to use force to defend a person "under his protection", and the driver was possibly under his protection after he responded to the driver's call for help. In any event, aid to strangers to prevent assault also constitutes a common law defence. At common law, a person may use force to rescue a person, even a stranger, from attack. The common law right provides a defence to assault that is wider than the statutory defence under s. 37(1) of the Criminal Code, and is preserved by s. 7(3) of the Code.

47     Thus, the term "under his protection" is not limited to a formal guardianship relationship, such as a parent or guardian and child, or a teacher and student. In its broadest sense, it means any one who requires protection which the accused may be able to provide. The relationship between Ms. Boys and Mr. Webers is included under the provisions of s. 37(1) of the Criminal Code.…
55     A most unfortunate aspect, of many, is that these tragic events could have been so easily avoided. If Dr. Babey had taken the time to explain his concerns for Ms. Boys' health, that the hospital attendance was for an assessment only, that it was time limited and that Ms. Boys would not be required to take medication without her consent, perhaps the understanding of what lay ahead would have brought acceptance by her and Mr. Webers.… If the staff had respected the absolute right of Ms. Boys, a competent person, to refuse treatment and had not become impatient, the necessity for restraints may not have been contemplated….
56     In the result, three persons were physically injured, one severely and probably permanently. A woman has been traumatized and her Charter and civil rights disregarded. And a productive member of society has endured the vagaries, expense and vicissitudes of our criminal justice system. However, it is now over for Henry Webers. Sir, I find you not guilty on all the counts before the Court.

 

R. v. Baxter
[1975] O.J. No. 1053
Ontario Supreme Court - Court of Appeal

The judgment of the Court was delivered by
1     MARTIN J.A.:— …
2     The … charges [in this case] arose out of an incident which occurred on the evening of September 11, 1973, at a farm owned by the appellant's mother in the Township of Orillia.
3     The jury … found [the appellant] guilty of … discharging firearms with intent to wound …, and also found him guilty of criminal negligence….
4     The appellant appeals against his conviction and the sentence of two years less one day imposed upon him.…
5       The appellant is 28 years of age, and on September 11, 1973, resided on his mother's farm near Orillia. The appellant worked at the Orillia hospital. He was a collector of antiques and also owned a number of guns. Dayton Platten and his wife were friends of the appellant and had resided on the farm, at his invitation, since the fall of 1972….
10     Harold Vivian, Kenneth Vivian, Richard Eastcott and Leo Guerrard, after consuming a quantity of beer and whisky at the home of Harold Vivian in Orillia, during the early part of the evening of September 11, 1973, left about 9 p.m. in Richard Eastcott's car, ostensibly to go for a drive.
11     The following is the version of Eastcott, Harold Vivian and Kenneth Vivian as to what occurred subsequently. About half a mile from the Baxter farm Eastcott suggested to the others that they visit Morley Baxter [the appellant]. Eastcott drove up the north driveway …. He saw no lights and turned to drive out, but stopped at the foot of a hill, near the barn.
12     When Eastcott stopped the car he heard a gun-shot. He got out of the car to investigate and was confronted by Platten carrying a gun and a flashlight. Platten told him to get off the property or he would set the dogs on him. Platten was soon joined by Mrs. Platten and "Slim" Canning, who was also carrying a gun. Eastcott asked to speak to Morley Baxter. The appellant then arrived on the scene carrying a gun and fired a number of shots in Eastcott's direction. Eastcott started to back up. The appellant lowered the gun, pointing it at Eastcott; as he was about to pull the trigger Platten shoved or knocked the gun upward so that it discharged in the air. Eastcott told the appellant he was leaving and turned to walk back to the car; just as he got to the car he was hit in the back with gun shot.
13     Eastcott got into the car, and holding Harold Vivian's head down, started to drive out the lane, with Kenneth Vivian on the outside of the car, hanging onto the door frame. As Eastcott drove out the lane there were further shots fired which hit the windshield, the driver's vent, the radiator, the roof and the driver's side of the car. Eastcott failed to make the turn from the lane on to the concession road and the car went into the ditch on the opposite side of the road.
14     As there was still gun fire, Eastcott and Harold Vivian rolled or jumped into the ditch. Later, as Kenneth Vivian opened the door of the car to enter, he was shot. When Harold Vivian was getting back into the car he too was shot. Leo Guerrard, who earlier had left the car, returned and the four men drove away and telephoned the police.
15     Eastcott, Harold Vivian and Kenneth Vivian were injured by shotgun pellets. Eastcott suffered wounds in the back of the head and in his shoulder. Harold Vivian was also hit in the back and in both legs. Kenneth Vivian, who received the most serious injuries, suffered numerous injuries to both legs. All the occupants of the Eastcott car testified that they were not armed.
….
50     The grounds of appeal based upon the Judge's charge with respect to the use of force to remove a trespasser may be conveniently dealt with together.
51     Counsel for the appellant contended that the trial Judge erred in instructing the jury that killing or causing grievous bodily harm to a trespasser was not justifiable unless the circumstances were such as to give rise to the defence of self-defence under section 34(2) of the Code, and should have left with the jury, as a separate defence, the provisions of section 41(1) of the Code authorizing the use of force to prevent any person from trespassing on a dwelling house or real property if he uses no more force than is necessary.
52     Section 41 of the Code reads:

41.(1) Every one who is in peaceable possession of a dwelling-house or real property and every one lawfully assisting him or acting under his authority is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.
(2)        A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.

53     Complaint is also made with respect to the following instruction to the jury by the trial Judge. The learned trial Judge, after reading section 41 of the Code to the jury, said:

So that in the circumstances here, one, if you are satisfied that either generally or on this occasion the people who were hurt had been ordered from the property then, and were still on it, not getting off it, then they were trespassers if they did not get off when they were asked to get off, if you find that in the evidence, then that was an assault, but the difficulty about that assault under Section 34.(2) that I have read to you is that it is very hard to say that, that assault deemed to be such under Section 41.(2) of The Criminal Code is a violent assault.

54     The sections of the Code authorizing the use of force in defence of a person or property, to prevent crime, and to apprehend offenders, in general, express in greater detail the great principle of the common law that the use of force in such circumstances is subject to the restriction that the force used is necessary; that is, that the harm sought to be prevented could not be prevented by less violent means and that the injury or harm done by, or which might reasonably be anticipated from the force used is not disproportioned to the injury or harm it is intended to prevent. (See Report of Criminal Code Bill Commission, 1879, referred to in 1 Russell, 12th ed. p. 432.)
55     Mr. Cooper referred the Court to authorities holding that the use of firearms is justified even though death ensues, in order to prevent burglary or arson. See 1 Hale P.C. 487; 10 Hals., 3rd ed. 721. The common law cast a special protection around the dwelling. In such cases there is, of course, an element of personal danger which may justify the use even of extreme force in self-defence. Moreover, section 27 of the Criminal Code authorizes the use of as much force as is reasonably necessary to prevent the commission of any offence, for which the offender may be arrested without warrant, and that would be likely to cause immediate and serious injury to the person or property of anyone or to prevent anything being done that, on reasonable and probable grounds, the person using such force believes would, if it were done, constitute such an offence.
56     The sections of the Code authorizing the use of force in defence of a person or property or to prevent the commission of certain serious crimes overlap, and the use of force in particular circumstances may be justified under more than one section. There was however, in this case no evidence of a reasonable apprehension on the part of the appellant of serious injury to the property of anyone, and his right to use force to prevent reasonably apprehended serious injury to himself was dealt with under self-defence. I should also add that the trial Judge was not requested to charge the jury with respect to section 27.
57     Mr. Cooper stressed the judgment of the Court of Criminal Appeal in R. v. Hussey (1924), 18 Cr. App. R. 160.
58     In that case the appellant's landlady had served an invalid notice to quit upon him, and when the appellant did not vacate the room, the landlady, assisted by another woman 'and a man, and armed with a hammer, a spanner and a coal chisel tried to force their way into the appellant's room, the door of which he had barricaded. A panel in the door was broken, and the appellant thereupon fired through the opening and the landlady and the male helper were wounded. The Court of Criminal Appeal quashed the conviction of the appellant of wounding.
59     Lord Hewart said:

No sufficient notice had been given to appellant to quit his room, and therefore he was in the position of a man who was defending his house. In Archibold's Criminal Pleading, Evidence and Practice, 26th ed. p. 887, it appears that: 'In defence of a man's house, the owner or his family may kill a trespasser who would forcibly dispossess him of it, in the same manner as he might, by law, kill in self-defence a man who attacks him personally; with this distinction, however, that in defending his home he need not retreat, as in other cases of self-defence, for that would be giving up his house to his adversary. That is still the law, but not one word was said about that distinction in the summing-up, which proceeded on the foundation that the defence was the ordinary one of self-defence.

60     It is perhaps unnecessary to say more about R. v. Hussey, supra, other than to observe that it involved an attempt to forcibly dispossess the accused, although one writer has observed "Hussey's case makes strange reading". Lanham Defence of Property in the Criminal Law, [1966] Crim. L. R. 368 at 372. In the present case there was no evidence of any attempt to evict the appellant or the Plattens. Counsel, quite properly, did not seek to invoke section 40 of the Code justifying the use of force to prevent the forcible breaking or entering of a dwelling house, as, in my view, there was no evidence which would make that section applicable.
61     Firing at a mere trespasser is, of course, not justifiable, and the trial Judge in the circumstances of this case correctly charged the jury that killing or causing grievous bodily harm to a trespasser could only be justified in self-defence: R. v. Meade and Belt, 1 Lew. C.C. 184; R. v. Scully (1824), 1 C. & P. 319; R. v. McKay, [1957] V.R. 560; Lanham, “Defence of Property in the Criminal Law”, [1966] Crim. L. R. 368 at p. 372.
62     I now turn to the ground of appeal relating to the Judge's charge with respect to section 41(2). Under section 41(2) a trespasser who resists an attempt by a person in peaceable possession of a dwelling house or real property to prevent his entry or to remove him is deemed to commit an assault without justification or provocation.
63     The meaning of this sub-section is not entirely clear. I am disposed to think that its effect is not to convert mere passive resistance into an assault but merely to provide that if any force is used by the wrongdoer in resisting an attempt to prevent his entry or to remove him, such force is unlawful, and hence an assault. The amount of force that may be used to prevent or defend against any assault actually committed by the wrongdoer depends upon the ordinary principles of self-defence as set out in section 34 of the Code. So regarded section 41(2) does not alter the common law as stated by Stephen who says:

For instance, 'he may put a trespasser out of his house, or out of his field by force, but he may not strike him, still less may he shoot or stab him. If the wrongdoer resists, the person who is on the defensive may overcome his resistance, and may proportion his efforts to the violence which the wrongdoer uses. If the wrongdoer assaults the person who is defending his property, that person is in the position of a man wrongfully assaulted, and may use whatever violence may become necessary for the protection of his person.
(Stephen, H.C.L. Vol. III, p. 15).
64     In Pocket v. Pool (1896), 11 Man. R. 275, after referring to section 53 of the then Code, (now section 41) Killam, J. said at page 286:
The latter part of the section does not, in my opinion, apply until there is an overt act in the direction of prevention or removal and an overt act in resistance....
Similarly, in the present case, if the defendant had used force to remove the plaintiff and the latter had merely remained passive and allowed himself to be pushed or dragged out of the field, there would have been no assault.

65     The nature of the assault, if any, committed by the wrongdoer depends on the actual facts. The learned trial Judge fully and fairly placed before the jury the evidence relied upon by the appellant as inducing a reasonable apprehension of personal injury including the evidence with respect to shots being fired from the car, as well as the threats that were made by its occupants. No complaint is made in this respect to the charge. The trial Judge's statement "... it is very hard to say that that assault deemed to be such under section 41(2) of the Criminal Code is a violent assault", did not result in any prejudice to the appellant….

* * *

First Session, Forty-first Parliament,

60-61 Elizabeth II, 2011-2012

The House of Commons of Canada

Bill C-26

 

An Act to amend the Criminal Code (citizen’s arrest and the defences of property and persons)

[Assented to 28th June, 2012]

 

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

 

2. Sections 34 to 42 of the Criminal Code are replaced by the following:

 

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

 

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

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;


(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

 

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

 

DEFENCE OF PROPERTY

 

35. (1) A person is not guilty of an offence if

(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

(ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

(c) the act that constitutes the offence is committed for the purpose of

(i) preventing the other person from entering the property, or removing that person from the property, or

(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

(d) the act committed is reasonable in the circumstances.

 

(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.

 

(3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.


* * *

LRCC § 3(10)

* * *

MPC § 3.04

* * *

StGB §§ 32-33

E.        Consent

 

R. v. Jobidon
Supreme Court of Canada
[1991] 2 S.C.R. 714

SOPINKA J.:— I have had the advantage of reading the reasons of Gonthier J. and while I agree with his disposition of the matter I am unable to agree with his reasons. This appeal involves the role that consent plays in the offence of criminal assault. Unlike my colleague I am of the view that consent cannot be read out of the offence. I come to this conclusion for two reasons:  (1) consent is a fundamental element of many criminal offences, including assault, and (2) the statutory provision creating the offence of assault explicitly provides for the element of consent.

Facts

The facts of this case are substantially as put forward by Gonthier J. in his reasons. For the purposes of my reasons I wish to highlight a few crucial facts.

The altercation which led to the unfortunate death of Rodney Haggart was a result of a consensual fist fight. The trial judge found that the fight commenced after mutual invitations to fight between Haggart and the accused. The accused was found to have honestly and reasonably believed that Haggart had consented to a “fair” fist fight. The judge also found that Haggart was rendered unconscious as a result of the first blow from the accused but that the accused continued to strike Haggart four to six times while he was unconscious.

1. General Principles of the Criminal Law

While the consent of the victim cannot transform a crime into lawful conduct, it is a vital element in determining what conduct constitutes a crime. It is a well-accepted principle of the criminal law that the absence of consent is an essential ingredient of the actus reus. Thus it is not theft to steal if the owner consents and consensual intercourse is not sexual assault. In D. Stuart, Canadian Criminal Law:  A Treatise (2nd ed. 1987), the author states (at p. 469):

The general principle, to which there are exceptions, that the true consent of the victim is always a defence to criminal responsibility is a fundamental principle of the criminal law.

He later adds at p. 472 that:

It is disappointing that our courts have based the rejection only on statutory construction. Lack of consent is a fundamental principle. Donovan [the English line of authority] should have been rejected even if lack of consent had not been expressed in our definition of assault.

In Lemieux v. The Queen, [1967] S.C.R. 492, this Court held that the offence of breaking and entering was not made out when it was carried out by pre-arrangement with the agent of the owner. The consent of the owner deprived the activity of an essential feature of the actus reus. Lack of consent as part of the actus reus is often confused with the defence of honest belief in consent which relates not to the actus reus of the offence but to the mens rea or mind state of the accused. Although there is no consent, an honest belief that there was consent may constitute a defence. See Pappajohn v. The Queen, [1980] 2 S.C.R. 120.

There is moreover no generally accepted exception to this principle with respect to the intentional infliction of physical harm. There are many activities in society which involve the intentional application of force which may result in serious bodily harm but which are not criminal. Surgical operations and sporting events are examples. It was no doubt the absence of an exception to this principle that led Parliament to enact s. 14 of the Criminal Code, R.S.C., 1985, c. C-46, which creates an exception for the most serious of assaults, the intentional infliction of death.

In my view Parliament has chosen to extend this principle to all assaults save murder in the interests of making this aspect of the criminal law certain. I see no evidence in the clear and simple language of s. 265 that it intended to outlaw consensual fighting in the interests of avoiding breaches of the peace or to allow it if a judge thought that it occurred in circumstances that were socially useful. Rather, the policy reflected in s. 265 is to make the absence of consent a requirement in the definition of the offence but to restrict consent to those intentional applications of force in respect of which there is a clear and effective consent by a victim who is free of coercion or misrepresentation. Instead of reading the words “without the consent of another person” out of s. 265 I am of the opinion that the intention of Parliament is respected by close scrutiny of the scope of consent to an assault. Instead of attempting to evaluate the utility of the activity the trial judge will scrutinize the consent to determine whether it applied to the very activity which is the subject of the charge. The more serious the assault the more difficult it should be to establish consent.

2. Interpretation of Section 265

Section 265 states that “[a] person commits an assault when without the consent of another person, he applies force intentionally to that other person. . . .” (emphasis added). My colleague Gonthier J. concludes that on the basis of cases which applied the common law, that section should be interpreted as excluding the absence of consent as an element of the actus reus in respect of an assault with intent to commit intentional bodily harm. In coming to his conclusion my colleague relies on a number of English authorities. The issue was not finally resolved in England until the decision of the English Court of Appeal on a reference to it by the Attorney General in 1980. See Attorney General’s Reference (No. 6 of 1980), [1981] 2 All E.R. 1057. Unconstrained by the expression of legislative policy, the court moulded the common law to accord with the court’s view of what was in the public interest. On this basis the court discarded the absence of consent as an element in assaults in which actual bodily harm was either caused or intended. Exceptions were created for assaults that have some positive social value such as sporting events. In Canada, the criminal law has been codified and the judiciary  is constrained by the wording of sections defining criminal offences. The courts’ application of public policy is governed by the expression of public policy in the Criminal Code. If Parliament intended to adopt the public policy which the English Court of Appeal developed it used singularly inappropriate language. It made the absence of consent a specific requirement and provided that this applied to all assaults without exception. The conflict in the Canadian cases which my colleague’s review discloses is largely due to the application of these two disparate strains of public policy.

In my opinion the above observations as to the appropriate use of public policy are sufficient to conclude that the absence of consent cannot be swept away by a robust application of judge-made policy. This proposition is strengthened and confirmed by the specific dictates of the Code with reference to the essential elements of a criminal offence. Section 9(a) of the Code provides that “[n]otwithstanding anything in this Act or any other Act, no person shall be convicted . . . (a) of an offence at common law”. The effect of my colleague’s approach is to create an offence where one does not exist under the terms of the Code by application of the  common law. The offence created is the intentional application of force with the consent of the victim. I appreciate that my colleague’s approach is to interpret the section in light of the common law but, in my view, use of the common law to eliminate an element of the offence that is required by statute is more than interpretation and is contrary to not only the spirit but also the letter of s. 9(a). One of the basic reasons for s. 9(a) is the importance of certainty in determining what conduct constitutes a criminal offence. That is the reason we have codified the offences in the Criminal Code. An accused should not have to search the books to discover the common law in order to determine if the offence charged is indeed an offence at law. Where does one search to determine the social utility of a fight during a hockey game to take one example?  There are those that would argue that it is an important part of the attraction. Judges may not agree. Is this a matter for judicial notice or does it require evidence? The problem of uncertainty which the social utility test creates is greater than searching out the common law, a problem which lead to the prohibition in s. 9(a).

Application to this Appeal

Given the danger inherent in the violent activity in this case, the scope of the consent required careful scrutiny. The trial judge found that the consent given by Haggart did not extend to a continuation of the fight once he had lost consciousness. By striking Haggart once he was unconscious, the accused acted beyond the scope of the consent of Haggart and thus committed the actus reus of assault.

Although satisfying the actus reus, did the accused have the requisite state of mind?  I now turn to the issue of honest belief in consent.

The accused believed that the victim, Haggart, was consenting to a fair fight. In his own evidence the accused stated that the object of the fight was to prevent injury to himself. The trial judge indicated:

I accept the evidence of the accused that he did not mean to kill Mr. Haggart or cause him serious bodily harm. He believed that Haggart consented to a fair fight. It was a fight in anger, and no friendly sparring contest or test of strength. The object of the fight was to hit the other man as hard as physically possible until he gave up or retreated. Physical injury was intended and contemplated. [Emphasis added.]
((1987), 36 C.C.C. (3d) 340, at p. 349.)

It appears clear from the findings of the trial judge that the accused had an honest belief in consent but that consent extended only until Haggart “gave up or retreated”. The extent of the consent given by Haggart did not, therefore, extend to being struck once he had been knocked unconscious. The accused knew that Haggart’s consent did not extend beyond consciousness.

In my opinion, based on his own findings the trial judge misconstrued the evidence with respect to the accused’s belief that all the blows were struck prior to Haggart losing consciousness. The following passage in the evidence of the accused shows that he knew that Haggart was unconscious after the second punch:

Q. What happened next?
A. It dazed him a fair amount and he was still struggling and he was swinging at me. He was cocking back. He couldn’t cock back because his back was on the car and his elbow would only go to his side, and he swung and I swung again, and I hit him and he was out after the second punch.
Q. Where did the second punch land?
A. In the same spot in the cheek or the cheek or the jaw.
Q. You are telling us about two punches outside?
A. That is correct.
Q. Were there any others?
A. No, there was not.

In his reasons the trial judge found that the accused struck Haggart four to six times after Haggart was unconscious (p. 348). The trial judge, therefore, did not accept the testimony of the accused that he struck Haggart only twice and one is left with the admission of the accused that he realized Haggart was unconscious after the second punch. By continuing to pummel Haggart after the accused realized Haggart was unconscious, the accused acted, to his knowledge, beyond the ambit of Haggart’s consent thereby committing an assault.

Having found that the accused committed an assault, and given that Mr. Haggart died as a result of that unlawful act, the accused is therefore guilty of manslaughter via Criminal Code ss. 222(5)(a) and 234. I would therefore dispose of the appeal as proposed by Gonthier J.

GONTHIER J.:— At issue in the present appeal is the role of consent in the criminal offence of assault. More particularly, the issue is whether the absence of consent is an essential element of this offence when it relates to a fist fight where bodily harm is intentionally caused.

I — Statement of Facts

The appellant, Jules Jobidon, was charged with manslaughter for the unlawful act of killing Rodney Haggart — through the offence of assault (alternatively, through an act of criminal negligence). The incident leading to the charge was a fist fight between the two men, in a parking lot outside a hotel near Sudbury, Ontario, on September 19, 1986. At the date of the killing, Rodney Haggart was 25 years old. He had consumed some beer. His blood alcohol level, measured a few hours after the incident, was 160 milligrams of alcohol per 100 millilitres of blood, but the trial judge found that Haggart appeared “perfectly fine” and “perfectly normal”. Jobidon, a young, fit and powerful man, had also been drinking beer prior to the fight, but in the opinion of the trial judge was not inebriated.

The two men initiated their aggression in the bar of the hotel. With his brother and a few friends, Haggart was celebrating his impending marriage. He approached Jobidon, who was also in the hotel with friends, and started a fight with him. Haggart was larger than the appellant, and had previous training as a boxer. In this first encounter, Haggart was prevailing when the owner of the hotel separated the combatants and told Jobidon and his brother to leave the hotel. Jobidon and Haggart exchanged angry words in the lobby, and the trial judge found that the two men agreed the fight was not over.

Jobidon and his brother waited outside in the parking lot. When the Haggart party exited the hotel their respective older brothers began fighting at the far end of the lot. Jobidon and Haggart argued. A crowd of people, many of whom had come outside to see the fight, gathered around them.

While Haggart and Jobidon stood facing each other, Jobidon struck Haggart with his fist, hitting him with great force on the head and face. Haggart was knocked backward onto the hood of a car. The trial judge determined that Haggart was rendered unconscious by this initial punch and that he appeared to be “out cold”. He was not moving and offered no resistance to the appellant.

Immediately after throwing that first punch, Jobidon continued forward. In a brief flurry lasting no more than a few seconds he struck the unconscious victim a further four to six times on the head. The trial judge found that there was no interval between Haggart’s fall and the continued punching. The punches were part of “one single continuing transaction . . . one fluid event, punctuated by specific blows”. The judge noted that the most reliable witness testified that it all happened so quickly he thought Haggart would bounce off the hood and resume the fight.

Instead, Haggart rolled off the hood and lay limp. He was taken to the hospital in a coma, where he died of severe contusions to the head. Medical evidence showed that he had sustained extensive bruising and abrasions to the head and neck. It was determined that the cause of death was one or more of the punches he had received at the hand of the appellant in the parking lot.

The trial judge found that Jobidon did not intend to kill Haggart, nor did he intend to cause the deceased serious bodily harm. However, the possibility of injury more serious than a bruise or bloody nose, such as a broken nose, was contemplated. Jobidon intentionally hit Haggart as hard as he could, but believed he was fighting fair. He did not depart intentionally from the kind of fight that Haggart had consented to. Jobidon believed that Haggart had consented to a fair fight, the object of which was to hit the other man as hard as physically possible until that person gave up or retreated. The trial judge also found that, although mistaken, and not supported by objective facts, Jobidon honestly believed that after Haggart had been struck onto the hood of the car he was merely stunned, but still capable of fighting back, and still trying to fight.

Jobidon was tried before a judge of the Supreme Court of Ontario, and was found not guilty of manslaughter:  (1987), 36 C.C.C. (3d) 340. The judge held that Haggart’s consent negated assault, and held further that Jobidon had not been criminally negligent. The respondent appealed the judge’s holding of assault to the Ontario Court of Appeal, which allowed the appeal, set aside the acquittal, and substituted a guilty verdict on the charge of manslaughter:  (1988), 45 C.C.C. (3d) 176…

Issues on Appeal

There is one principal issue raised in this appeal; and one ancillary issue. The principal issue is whether absence of consent is a material element which must be proved by the Crown in all cases of assault or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases. A secondary issue is whether Jobidon could be convicted of manslaughter on a basis other than that of an unlawful act of assault.

Resolving the main issue calls for close scrutiny of the relevant statutory provisions and of the pertinent case law. Before moving to that analysis, it is helpful to outline the major arguments made by the parties in this Court.

Appellant’s Arguments

The appellant argued that the Ontario Court of Appeal erred in its interpretation of s. 265 of the Criminal Code. Rather than apply the common law understanding of the role of consent — which sometimes limits its effectiveness as a bar to assault — the court should have accorded full effect to Haggart’s consent, as apparently required by s. 265(1)(a) of the Code.

Section 265(1)(a) states that an assault occurs when, “without the consent of another person, he applies force intentionally to that other person, directly or indirectly”. Section 265(2) provides that “This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.” In the appellant’s opinion, the trial judge’s finding of consent meant that all the elements of the offence of assault had not been proved. The appellant should therefore have been acquitted on that basis, since the legislature intended that consent should serve as a bar to conviction.

According to the appellant, the legislature could have specified that in certain situations, or in respect of certain forms of conduct, absence of consent would not be an operative element of the offence. It has done so with other offences. Parliament has provided that no person is entitled to consent to have death inflicted on him (s. 14). It restricted the concept in ss. 150.1 and 159 of the Code by denying defences to sexual offences based on a child’s consent. It also did this in s. 286 by negating the validity of a young person’s consent to abduction. But with the assault provisions in s. 265, it chose not to insert policy-based limitations on the role of consent. Moreover, in s. 265(3), Parliament expressly specified the circumstances in which consent would be vitiated on grounds of involuntariness, but the circumstances described in that subsection do not include the policy limitation applied to fist fights by the English Court of Appeal in the Attorney General’s Reference, supra.

The appellant further observed that, in England, the crime of assault is not defined in a criminal code but in the common law, to which common law limitations and exceptions more naturally apply. In Canada, we have a code of general principles by which, it is presumed, ambiguity is to be construed in favour of the liberty of the subject.

Finally, the appellant argued that the Court of Appeal did not appropriately characterize the Canadian common law. In its opinion, the Canadian jurisprudence shows that one can effectively consent to the application of force in a fist fight even if bodily harm was intended and caused.

Respondent’s Arguments

In step with the Court of Appeal, the Crown argued that the overwhelming weight of common law authorities supports the position that one cannot validly consent to intentionally caused bodily harm in all circumstances, and that the law prohibits consent to street brawls or fist fights. It is not in the public interest that people should engage in these sorts of activities, so, on public policy grounds, the word “consent” in s. 265 of the Code should be read in light of the common law, which limits its applicability as a defence to assault. The Crown also noted that fist fighting is without social value and has been outlawed in other common law jurisdictions.

The respondent further submitted that Parliament did not intend to oust the common law limitations on consent. If Parliament had so intended, it would have made that intention far clearer. There exists an established interpretative principle that the legislature does not intend to make substantial changes in the existing law beyond that which is expressly stated in or follows by necessary implication from the statute’s language. Thus, since the statute says nothing about common law limitations being erased, one should presume they were left intact.

The respondent argued in the alternative that, if this Court were to overturn the Court of Appeal’s approach to consent, the appeal should nevertheless be dismissed because Jobidon caused the death of Haggart through the alternative unlawful act of causing a disturbance by fighting.

II — Analysis

…       

3. The Role and Scope of Consent in Assault

The controversy in this appeal stems from the apparent contradiction between the holding of the Ontario Court of Appeal in the instant appeal and the wording of s. 265(1)(a). By that wording, once the trial judge found that the deceased had consented to a fight with Jobidon, it appears as if he could not have committed the unlawful act of assault since s. 265(2) states a general rule that s. 265 applies to all forms of assault, including assault causing bodily harm. Consequently, given the reference to absence of consent in s. 265(1), proof of consent to a fist fight in which force is intentionally applied and which results in bodily harm would seem to serve as a defence for Jobidon. In that way, ss. 265(1) and 265(2) also appear to support the appellant’s position that absence of consent is a requirement to be proved by the Crown beyond a reasonable doubt, in each and every instance of assault. (This understanding of the burden of proof, as distinct from the issue of the universal applicability of the requirement, is not explicit in s. 265, but it has been so interpreted by the courts, and is supported by some of the most recent academic literature. See, for example, A. W. Bryant, “The Issue of Consent in the Crime of Sexual Assault” (1989), 68 Can. Bar Rev. 94.)  Given the prima facie appearance of support for the appellant’s position, one might question how the Ontario Court of Appeal could hold that the deceased’s consent to a fair fight did not preclude commission of the offence of assault.

That question would be well-aimed. Provincial courts of appeal have grappled with the issue on numerous occasions in recent years, sometimes arriving at divergent conclusions. Legal academics have experienced similar consternation. One has noted that the present state of the law in Canada is “confusing and conflicting”. (Bryant, op. cit., n. 24, at p. 99.)  Another text states “this area of the law is so nebulous that it is difficult to be very precise” (Mewett and Manning, Criminal Law (2nd ed. 1985), at p. 566). In 1984, the Law Reform Commission of Canada phrased the problem in more detailed terms:

As regards the present law, it is clear that sometimes, as in the case of mere touching, consent is a defence, and that in general, where the contact is intended to cause death or serious harm, consent is no defence. It is also clear that even in circumstances going beyond mere touching (for example, in surgical operations and in lawful sports) consent can prevent the force from being unlawful. What is unclear is the extent to which the same rule applies or does not apply in Canada outside the operating theatre and the sports arena, for example, in sado-masochistic circumstances. [Emphasis added.]
(Working Paper 38: Assault, at p. 24.)

It is the purpose of the remaining analysis to clarify the role of consent in relation to a fist fight or brawl.

(a) The General Influence of the Common Law on the Code’s Definition of Assault

Although containing myriad provisions of a relatively detailed nature, the Criminal Code has been inspired by general principles of criminal responsibility. Section 265 is no exception. It speaks in a universal tone and sets out a general rule that one cannot commit assault if the other person agrees to the application of force.

However, while it is true that the general rule says all forms of assault are covered by the various clauses of s. 265, it does not attempt to define the situations or forms of conduct or eventual consequences which the law will recognize as being valid objects of consent for the purpose of the offence. It does not attempt to define the situations in which consent will or will not be legally effective. The present Code is silent in this regard.

The original statutory definition of assault did not define consent, except to indicate the longstanding rule that a fraudulently induced consent is legally ineffective. That traditional common law rule, and its incorporation in the first statutory definition of assault, is explained by Watt, op. cit., at p. 219, and is examined in greater detail below. Later statutes also omitted full definitions of consent. The 1983 amendments defined consent only in part, by negatively indicating a few ways consent could be vitiated. If Parliament had sought to perform the comprehensive task of indicating what one could and could not consent to, it likely would have offered more guidance. (It is noteworthy that in its revised and enlarged report on recodification, the Law Reform Commission of Canada has suggested that consent be defined in a definitions section of a new code (Report 31: Recodifying Criminal Law (1987), at p. 10).)

Parliament could have specified whether the term “consent” is aimed simply at the kind of activity being purportedly consented to (here a fist fight), or whether it refers to consent to a trivial injury which does not amount to bodily harm (such as might be sustained in sporting activities), or whether for the defence to apply the consent must be as to the precise extent of harm actually caused by the application of force. At any point in the history of the provision Parliament could have taken the opportunity to specify whether the common law, which already had had much to say about assault and the requirement of consent, was being emptied of relevance. But it did not do these things. Nor did it have to.

Just as the common law has built up a rich jurisprudence around the concepts of agreement in contract law, and volenti non fit injuria in the law of negligence, it has also generated a body of law to illuminate the meaning of consent and to place certain limitations on its legal effectiveness in the criminal law. It has done this in respect of assault. In the same way that the common law established principles of public policy negating the legal effectiveness of certain types of contracts — contracts in restraint of trade for example — it has also set limits on the types of harmful actions to which one can validly consent, and shelter an assailant from the sanctions of our criminal law.

There is no indication in s. 265 that the jurisprudence of the criminal common law was to be undermined by its enactment. There was no hint that traditional policy limits on consent, described below in greater detail, were to be ousted by s. 258 of the first Criminal Code of 1892, nor by enactment of its successor provision in s. 244 (now s. 265). This should not be surprising. As the foregoing sketch of the history of the offence demonstrates, far from intending to curtail the authority of that law, the Code was a partial expression of it….

(b) The Specific Relationship Between the Code and the Common Law of Assault in Cases of Fist Fights

(i)  The Relationship Between Consent and Section 265(3)
The appellant argued that the 1983 amendments to s. 265 reflected Parliament’s intent to replace any common law doctrines that might have negated the legal effectiveness of consent to an act which would otherwise constitute assault. In particular, reference was made to s. 265(3), which sets out four factors that may vitiate consent:  application of force, threats of force, fraud, or the exercise of authority. It was argued that because Parliament explicitly specified these factors, any others, even though they may have applied prior to 1983, could no longer be drawn from the common law. Since the trial judge found that Haggart had consented to the fight and did not hold that such consent was invalidated on any of the four grounds, it should be effective, and should serve as a defence to assault as the plain words of ss. 265(1) and 265(2) appear to require.

While at first glance the appellant’s argument may seem cogent, it is ultimately unpersuasive. Parliament did not set foot into new territory when listing the four vitiating factors in s. 265(3). On the contrary it will be seen that, for the most part, that list merely concretized, and made more explicit, basic limits on the legal effectiveness of consent which had for centuries formed part of the criminal law in England and in Canada. Their expression in the Code did not reflect an intent to remove the existing body of common law which already described those limitations and their respective scope. The Code just spelled them out more clearly, in a general form.

That common law is rich and extensive, with roots reaching back well into the decades preceding Canada’s adoption of the Code of 1892. For instance it provided that, as a general rule, consent would only be valid or legally effective if it was given freely by a rational and sober person. (See Russell on Crime, op. cit., at p. 678.)

Thus in R. v. March (1844), 1 Car. & K. 496, 174 E.R. 909, the English criminal court, speaking through Lord Tindal C.J., held that a fraudulently obtained consent to common assault was no consent at all (p. 911). The parallel in our Code is in s. 265(3)(c). In R. v. Lock (1872), L.R. 2 C.C.R. 10, an English criminal court held that eight-year-old boys were too young to understand the nature of a sexual act with a grown man to be able to consent to it. Submission by a young child to an older, stronger person, an authority figure, would not be considered consensual. The consent would in all probability have been obtained under a coerced and ill-informed will. This principle now finds expression in Canada in s. 265(3)(d).

As for consent in the context of fist fights, the English common law displayed a similar penchant for limiting its role as an exculpatory defence. However it is vital to note that the basis of the concern was different than in the case of fraud, threats, or forced “consents”. The early cases often did not explicitly acknowledge that different basis, but hints of it may be identified. It was a concern that the offence of assault — more particularly the element of consent — be informed by considerations of public policy. Such considerations were thought sufficiently important to justify nullifying the legal validity of consent as a defence to a charge of assault.

For instance, in Wright’s Case (1603), Co. Litt. f. 127 a-b, the English criminal court held that, not only would a man be punished at law for procuring another to sever his hand — to assist his career as a mendicant — but the person effecting the task would also be liable to criminal sanction, irrespective of the other’s consent. In Matthew v. Ollerton (1693), Comb. 218, 90 E.R. 438, it was held that a man may not license another to beat him as that act amounted to a breach of the peace. This principle was repeated in Boulter v. Clarke (1747),  Bull. N.P. 16, where it was determined that it is no defence to a charge of assault that the two persons fought by mutual consent. Coleridge J. reaffirmed the doctrine in R. v. Lewis (1844), 1 Car. & K. 419, 174 E.R. 874, a case involving a fight between two men outside a dance hall, which had resulted in the death of a man from blows sustained to his head. Coleridge  J. stated, at p. 875:  “it ought to be known, that, whenever two persons go out to strike each other, and do so, each is guilty of an assault”.

It will be seen that this nullification of the defence of consent in fist fight cases in England has continued forward uninterruptedly to the present day. In Canada the same principle was applied for many decades before the appropriateness of such invalidation was ever brought into question. Indeed it was for reasons of public policy that the Court of Appeal nullified Haggart’s consent.

We have observed from the general analysis of the Code and common law that, in the history of our criminal law, codification did not replace common law principles of criminal responsibility, but in fact reflected them. That history also reveals that policy-based limitations of the sort at issue here boast a lineage in the common law equally as long as the factors which vitiate involuntary consent. Since these policy-based limitations also existed before the codification of Canada’s criminal law there is no reason to think they have been ousted by statutory revisions and amendments made to the Code along the way.

On this understanding, even if it could be concluded, contrary to my own view of the law, that s. 265(3) negated the applicability of common law rules which describe when consent to assault will be vitiated for involuntariness, or defects in the will underlying the apparent consent, it would not follow that those amendments erased limitations based on public policy. If Parliament had so intended, it would have stated that intention. As it is, the Code as amended in 1983 is entirely silent in this regard.

This view accords with the interpretation of the Law Reform Commission of Canada. In its working paper on assault it notes that, regardless of the wording of s. 265(3), not all consents will be accepted as being legally effective. Irrespective of a finding of real or implied consent, in some cases (resembling the situation in the instant appeal) “the victim’s consent or non-consent is quite irrelevant.”  (It cites as one example at p. 6 the situation where the application of force is intended to cause death or serious bodily harm, and another when a blow is struck in the course of an illegal fight.)  That irrelevance is the result of policy considerations which in some circumstances nullify the legal effectiveness of consent.

Furthermore, since s. 8(3) of the Code expressly confirms the common law’s continued authority and provides that exculpatory defences not expressly struck down by the Code continue to operate to exclude criminal liability, in this appeal, where the Code has not erased the common law limit in fist fights, it must continue to define the scope of legally effective consent. Some may object that s. 8(3) cannot be used to support this interpretation because consent is not really a defence, but instead forms part of the offence; indeed it is the absence of consent that is relevant as an element of the offence of assault. For example, Mewett and Manning, op. cit., at p. 567, write that “Real consent is therefore an essential element of assault going to the actus reus in the sense that if consent is present no offence can have been committed”. Yet while that objection may have some relevance from a strictly formalistic perspective, it is of little consequence from a substantive point of view. Moreover it conflicts with the spirit of this Court’s previously expressed understanding of s. 8(3).

Whether consent is formally categorized as part of the actus reus of the offence, or as a defence, its essential function remains unaltered — if consent is proved, or if absence of consent is not proved, an individual accused of assault will generally be able to rely on the consent of the complainant to bar a conviction. He will be able to lean on the consent as a defence to liability. This basic reality has been widely recognized. English and Canadian courts widely refer to consent as being in the nature of a defence. Leading treatises on criminal law conceive it this way. See Watt, op. cit., at p. 216; Clarkson and Keating, op. cit., at pp. 283-92; G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 549 and 576-78; and Law Reform Commission of Canada, Working Paper 38, Assault, op. cit., at p. 24. We have also observed, in the general interpretative section above, that the law confers on s. 8(3) an open and developmental view of the common law’s role. Section 8(3) strongly suggests preservation of the common law approach to consent in assault.

Assault has been given a very encompassing definition in s. 265. It arises whenever a person intentionally applies force to a person “directly or indirectly”, without the other’s consent. The definition says nothing about the degree of harm which must be sustained. Nor does it refer to the motives for the touching. If taken at face value, this formulation would mean that the most trivial intended touching would constitute assault. As just one of many possible examples, a father would assault his daughter if he attempted to place a scarf around her neck to protect her from the cold but she did not consent to that touching, thinking the scarf ugly or undesirable. (Even an argument for implied consent would not seem to apply in a case like this.) That absurd consequence could not have been intended by Parliament. Rather its intention must have been for the courts to explain the content of the offence, incrementally and over the course of time.

Furthermore, whereas the factors specified in s. 265(3) are readily identifiable, and are generally applicable to all sorts of situations, that is inherently not true of limitations based on policy considerations, which are fact-specific by nature. It would have been quite impractical, if not impossible, for Parliament to establish an adequate list of exceptions to apply to all situations, old and new. Policy-based limits are almost always the product of a balancing of individual autonomy (the freedom to choose to have force intentionally applied to oneself) and some larger societal interest. That balancing may be better performed in the light of actual situations, rather than in the abstract, as Parliament would be compelled to do.

With the offence of assault, that kind of balancing is a function the courts are well-suited to perform. They will continue to be faced with real situations in which complicated actions and motivations interact, as they have in the past. I do not accept the argument that by failing to enact a list of objects or forms of conduct to which one could not validly consent, Parliament intended to eliminate their role in the offence of assault and to rely only on the four factors specified in s. 265(3). Such a major departure from well-established policy calls for more than mere silence, particularly as such a list would have been unduly difficult and impractical to prescribe, and was unnecessary given their existing entrenchment in the common law. The common law is the register of the balancing function of the courts — a register Parliament has authorized the courts to administer in respect of policy-based limits on the role and scope of consent in s. 265 of the Code.

(ii)  The Relationship Between Consent and Section 265(2)
The appellant argues that the interpretation favouring limits on consent being advanced here would render s. 265(1)(a) (“without the consent of another”) otiose and meaningless, in so far as s. 265(2) specifies that s. 265(1)(a) is to apply to all forms of assault, including assault causing bodily harm. However, this objection is not sustainable.

By specifying in s. 265(2) that s. 265 is to apply to all forms of assault, Parliament undoubtedly sought to ensure that the basic elements of the offence of assault in ss. 265(1)(a) to (c), the circumstances listed in s. 265(3) for vitiating consent due to a coerced or misinformed volition, and the required state of mind for raising a defence in s. 265(4), would be applied without exception, irrespective of the peculiar form of assault. That is plain. Yet it does not follow from that expression that Parliament intended to eliminate the common law prescription of objects or forms of conduct to which legally effective consent may not be given. Section 265 was deliberately left open in that regard, for the above reasons.

(iii)  Consent and Section 14 of the Code
Section 14 nullifies consent to the infliction of death in a broad and open-textured fashion. It provides:

14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

A final argument made by the appellant is that by enacting s. 14 of the Code, Parliament reflected its intention to negate consent solely in situations where death was intended to be caused. With other situations, and with forms of conduct like the fist fight between Jobidon and Haggart where that consequence was not intended, consent should be given full legal effect. In other words, the appellant suggested a version of the interpretative principle expressed by the maxim expressio unius est exclusio alterius. But this argument also fails.

Section 14 is an absolute exclusion of consent to death in all circumstances. It follows neither from logic nor from the structure of the Code that absent death, consent to any or all forms of bodily injury is permissible, regardless of the circumstances. The section speaks only of consent to the infliction of death. It does not comment on consent to other consequences, any more than it comments on sexual offences or any other form of assault. It stands on its own….

(d)  Summary of the Common Law

(i)  The English Position
Attorney General’s Reference makes it clear that a conviction of assault will not be barred if “bodily harm is intended and/or caused”. Since this test is framed in the alternative, consent could be nullified even in situations where the assailant did not intend to cause the injured person bodily harm but did so inadvertently. In Canada, however, this very broad formulation cannot strictly apply, since the definition of assault in s. 265 is explicitly restricted to intentional application of force. Any test in our law which incorporated the English perspective would of necessity have to confine itself to bodily harm intended and caused.

(ii)  The Canadian Position
The preceding analysis reveals division in the Canadian jurisprudence. Decisions by courts of appeal in Manitoba, Ontario, Nova Scotia and (lately) Saskatchewan would nullify consent to intentionally inflicted bodily harm arising from a fist fight. Their approach is contained, respectively, in Buchanan (1898), Cullen (1948), Squire (1975), Jobidon (1988), Gur (1986), McIntosh (1991), and Cey (1989). (There is of course general support for the idea of policy-based nullification in the Alberta Court of Appeal; witness the language of Laycraft C.J.A. in R. v. Carriere, supra.)

On the other side are decisions of appellate courts in New Brunswick (MacTavish (1972)), Quebec (Abraham (1974)), Saskatchewan (Setrum (1976)), and Alberta (Bergner (1987) and Loonskin (1990)).

Although there is certainly no crystal-clear position in the modern Canadian common law, still, when one takes into account the combined English and Canadian jurisprudence, when one keeps sight of the common law’s centuries-old persistence to limit the legal effectiveness of consent to a fist fight, and when one understands that s. 265 has always incorporated that persistence, the scale tips rather heavily against the validity of a person’s consent to the infliction of bodily injury in a fight.

The thrust of the English common law is particularly important in this regard because it has been consistent for many decades, indeed, centuries. It became an integral component of the Canadian common law and has remained so to this day. Many of the seemingly pivotal pro-consent decisions made by courts in the 1970s were either obiter or were pronounced upon insufficient consideration of the important role of the traditional common law. Moreover they were decided prior to the decision in Attorney General’s Reference (1981), which offered a very authoritative pronouncement of the common law position. The significance of that decision is perhaps best indicated in the instant appeal, for it provided the basis used by the Ontario Court of Appeal to overrule its decision in R. v. Dix, supra. The Attorney General’s Reference case was again observed to be pivotal in the recent decision of the Appeal Court in Saskatchewan, in R. v. Cey. In light of these many considerations, I am of the view that the Canadian position is not as opaque or bifurcated as one might initially think.

Notwithstanding this conclusion, given the residual indeterminacy which admittedly lingers in the recent Canadian cases, it is useful to canvass policy considerations which exert a strong influence in this appeal, for they rather decisively support the respondent, bringing down the scales even more surely in support of the decision in the court below.

(e)  Policy Considerations

Foremost among the policy considerations supporting the Crown is the social uselessness of fist fights. As the English Court of Appeal noted in the Attorney General’s Reference, it is not in the public interest that adults should willingly cause harm to one another without a good reason. There is precious little utility in fist fights or street brawls. These events are motivated by unchecked passion. They so often result in serious injury to the participants. Here it resulted in a tragic death to a young man on his wedding day.

There was a time when pugilism was sheltered by the notion of “chivalry”. Duelling was an activity not only condoned, but required by honour. Those days are fortunately long past. Our social norms no longer correlate strength of character with prowess at fisticuffs. Indeed when we pride ourselves for making positive ethical and social strides, it tends to be on the basis of our developing reason. This is particularly true of the law, where reason is cast in a privileged light. Erasing longstanding limits on consent to assault would be a regressive step, one which would retard the advance of civilised norms of conduct.

Quite apart from the valueless nature of fist fights from the combatants’ perspective, it should also be recognized that consensual fights may sometimes lead to larger brawls and to serious breaches of the public peace. In the instant case, this tendency was openly observable. At the prospect of a fight between Jobidon and the deceased, in a truly macabre fashion many patrons of the hotel deliberately moved to the parking lot to witness the gruesome event. That scene easily could have erupted in more widespread aggression between allies of the respective combatants. Indeed it happened that the brothers of Jobidon and Haggart also took to each other with their fists.

Given the spontaneous, often drunken nature of many fist fights, I would not wish to push a deterrence rationale too far. Nonetheless, it seems reasonable to think that, in some cases, common law limitations on consent might serve some degree of deterrence to these sorts of activities.

Related to a deterrence rationale is the possibility that, by permitting a person to consent to force inflicted by the hand of another, in rare cases the latter may find he derives some form of pleasure from the activity, especially if he is doing so on a regular basis. It is perhaps not inconceivable that this kind of perversion could arise in a domestic or marital setting where one or more of the family members are of frail or unstable mental health. As one criminal law theorist has written:

. . . the self-destructive individual who induces another person to kill or to mutilate him implicates the latter in the violation of a significant social taboo. The person carrying out the killing or the mutilation crosses the threshold into a realm of conduct that, the second time, might be more easily carried out. And the second time, it might not be particularly significant whether the victim consents or not. Similarly, if someone is encouraged to inflict a sado-masochistic beating on a consenting victim, the experience of inflicting the beating might loosen the actor’s inhibitions against sadism in general.
(G. Fletcher, Rethinking Criminal Law (1978), at pp. 770-71.)

Of course this appeal does not concern sadism or intentional killing. But it comes close to mutilation. In any event, the weight of the argument could hold true for fights. If aggressive individuals are legally permitted to get into consensual fist fights, and they take advantage of that license from time to time, it may come to pass that they eventually lose all understanding that that activity is the subject of a powerful social taboo. They may too readily find their fists raised against a person whose consent they forgot to ascertain with full certitude. It is preferable that these sorts of omissions be strongly discouraged.

Wholly apart from deterrence, it is most unseemly from a moral point of view that the law would countenance, much less provide a backhanded sanction to the sort of interaction displayed by the facts of this appeal. The sanctity of the human body should militate against the validity of consent to bodily harm inflicted in a fight.

Some would say the offence of assault should not be concerned with these considerations. They might argue that in respect of street fights, deterrence and express disapprobation of the law is already contained in other provisions of the Criminal Code. For instance, Parliament has seen fit to prohibit “prize-fighting”, on penalty of criminal sanction, in s. 83.

However, while it is true that s. 83 prohibits prize-fighting, it is unlikely that section would apply to the situation giving rise to this appeal, nor to the wide range of cases which arise in like fashion. The definition of prize-fighting is:

83.(2)  . . . an encounter or fight with fists or hands between two persons who have met for that purpose by previous arrangement made by or for them, but a boxing contest between amateur sportsmen . . . shall be deemed not to be a prize fight. [Emphasis added.]

Since it is a condition of this offence that the fight be arranged previously, it is questionable whether the facts of this case would warrant a conviction on that basis. Although the trial judge found that the parties agreed to continue their fight outside the hotel, nonetheless it was essentially a spontaneous, ad hoc event. (In any event, this issue has not been raised in this appeal.)

The policy preference that people not be able to consent to intentionally inflicted harms is heard not only in the register of our common law. The Criminal Code also contains many examples of this propensity. As noted above, s. 14 of the Code vitiates the legal effectiveness of a person’s consent to have death inflicted on him under any circumstances. The same policy appears to underlie ss. 150.1, 159 and 286 in respect of younger people, in the contexts of sexual offences, anal intercourse, and abduction, respectively. All this is to say that the notion of policy-based limits on the effectiveness of consent to some level of inflicted harms is not foreign. Parliament as well as the courts have been mindful of the need for such limits. Autonomy is not the only value which our law seeks to protect.

Some may see limiting the freedom of an adult to consent to applications of force in a fist fight as unduly paternalistic; a violation of individual self‑rule. Yet while that view may commend itself to some, those persons cannot reasonably claim that the law does not know such limitations. All criminal law is “paternalistic” to some degree—top-down guidance is inherent in any prohibitive rule. That the common law has developed a strong resistance to recognizing the validity of consent to intentional applications of force in fist fights and brawls is merely one instance of the criminal law’s concern that Canadian citizens treat each other humanely and with respect.

Finally, it must not be thought that by giving the green light to the common law, and a red light to consent to fights, this Court is thereby negating the role of consent in all situations or activities in which people willingly expose themselves to intentionally applied force. No such sweeping conclusion is entailed. The determination being made is much narrower in scope.

(f)  Conclusion

How, and to what extent is consent limited?

The law’s willingness to vitiate consent on policy grounds is significantly limited. Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations. The unique situation under examination in this case, a weaponless fist fight between two adults, provides another important boundary.

The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. (This test entails that a minor’s apparent consent to an adult’s intentional application of force in a fight would also be negated.)  This is the extent of the limit which the common law requires in the factual circumstances of this appeal. It may be that further limitations will be found to apply in other circumstances. But such limits, if any, are better developed on a case by case basis, so that the unique features of the situation may exert a rational influence on the extent of the limit and on the justification for it.

Stated in this way, the policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile. In this regard the holding of the Saskatchewan Court of Appeal in R. v. Cey, supra, is apposite.

The court’s majority determined that some forms of intentionally applied force will clearly fall within the scope of the rules of the game, and will therefore readily ground a finding of implied consent, to which effect should be given. On the other hand, very violent forms of force which clearly extend beyond the ordinary norms of conduct will not be recognized as legitimate conduct to which one can validly consent.

There is also nothing in the preceding formulation which would prevent a person from consenting to medical treatment or appropriate surgical interventions. Nor, for example, would it necessarily nullify consent between stuntmen who agree in advance to perform risky sparring or daredevil activities in the creation of a socially valuable cultural product. A charge of assault would be barred if the Crown failed to prove absence of consent in these situations, in so far as the activities have a positive social value and the intent of the actors is to produce a social benefit for the good of the people involved, and often for a wider group of people as well. This is a far cry from the situation presented in this appeal, where Jobidon’s sole objective was to strike the deceased as hard as he physically could, until his opponent either gave up or retreated. Fist fights are worlds apart from these other forms of conduct.

Finally, the preceding formulation avoids nullification of consent to intentional applications of force which cause only minor hurt or trivial bodily harm. The bodily harm contemplated by the test is essentially equivalent to that contemplated by the definition found in s. 267(2) of the Code, dealing with the offence of assault causing bodily harm. The section defines bodily harm as “any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature”.

On this definition, combined with the fact that the test is restricted to cases involving adults, the phenomenon of the “ordinary” schoolyard scuffle, where boys or girls immaturely seek to resolve differences with their hands, will not come within the scope of the limitation. That has never been the policy of the law and I do not intend to disrupt the status quo. However, I would leave open the question as to whether boys or girls under the age of 18 who truly intend to harm one another, and ultimately cause more than trivial bodily harm, would be afforded the protection of a defence of consent. (As was the accused in R. v. Barron (1985), 23 C.C.C. (3d) 544 (Ont. C.A.), in which a boy was charged with manslaughter, via assault, for pushing another boy down a flight of stairs thereby causing the boy’s death. The trial judge held that the deceased boy had impliedly consented to rough-housing on the stairs as they descended.)  The appropriate result will undoubtedly depend on the peculiar circumstances of each case….

 

R. v. Cuerrier
Supreme Court of Canada
[1998] 2 S.C.R. 371

L’HEUREUX-DUBÉ J. (concurring in result):— This appeal must determine whether the accused’s misrepresentation as to his HIV-positive status can nullify the complainants’ apparent consent to sexual intercourse so as to bring the sexual activity in question within the scope of the Criminal Code offence of aggravated assault. I have read the different reasons of my colleagues, Justices Cory and McLachlin, and although I agree with the result that they both reach, I disagree with the respective routes that they take to reach that result. In particular, I disagree with McLachlin J.’s conclusion that Parliament did not intend to move away from the strict common law approach to the vitiation of consent by fraud in the assault context. Likewise, although I share Cory J.’s conclusion that Parliament did intend such a change, I cannot agree with the new test that he articulates to determine the additional circumstances in which fraud will vitiate consent.

The central issue in this appeal is the interpretation to be given to the word “fraud” as it appears in s. 265(3)(c) of the Criminal Code, R.S.C., 1985, c. C-46. As “fraud” is not defined in the assault scheme in the Criminal Code, it is left to the courts to interpret its meaning as it relates to consent to the application of force.  Consistent with established principles of statutory interpretation, the interpretation of “fraud” in s. 265(3)(c) must give effect to the intention of Parliament, and it must be informed by an appreciation of the context of the Criminal Code, its purposes, and the particular objectives of the assault scheme to which the fraud provision relates…

The substantial overhaul that Parliament undertook with the 1983 amendments implies that it was dissatisfied with the traditional approach to sexual offences. This approach had been informed by the common law, as well as previous statutory codifications. In this context of discontent with the law’s historical treatment of victims of sexual offences, and in light of the removal of the words “false and fraudulent representations as to the nature and quality of the act”, it is clear that Parliament intended to move away from the traditional approach to fraud as it relates to consent in sexual assault offences…

An examination of the content of s. 265(3) is particularly significant when compared to the provisions that it replaced. First, it is clear that Parliament intended to expand the circumstances  in which consent would be vitiated. Henceforth in the Criminal Code’s treatment of assault or sexual offences, both the exercise of authority (s. 265(3)(d)), and  the application of force, or the threat thereof, to a person other than the complainant (s. 265(3)(a) and (b)), were to be considered consent-vitiating factors. Implying that Parliament’s intent was to permit a broader interpretation of the concept of “fraud” by enacting s. 265(3)(c) free of any qualifiers, is entirely consistent with the general thrust of s. 265(3).

Second, some significance must be attributed to the new way in which the vitiation of consent is conceived by s. 265(3). The old provisions state that an offence has still been committed even where consent was obtained, if that consent was obtained in a particular manner: i.e. through false and fraudulent representations as to the nature and quality of the act. But s. 265(3) does not state simply that actions are unlawful if consent was obtained under vitiating circumstances. Instead, s. 265(3) says that “no consent is obtained where the complainant submits or does not resist” because of the presence of one of the enumerated factors. (Emphasis added.) In their treatise Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 789, A. W. Mewett and M. Manning suggest that this change is crucial and entails “a fundamental shift in the scope of operative fraud”, and is not just a perpetuation of the traditional approach to fraud in sexual assault contexts:

[W]e should no longer be concerned with whether there is consent and worry about whether it has been vitiated, but whether there has been submission or no resistance and worry about whether the reason for that submission or lack of resistance is fraud. This indicates that the inquiry under the new provisions is not, as it was under the old legislation, into whether there is any factor that negatives any consent to that act, but into whether there has been any submission or failure to resist by reason of any fraud. . . . [W]hat is relevant is not whether there has been any fraud going to the nature and quality of the act but whether there has been any fraud by reason of which the victim submitted or failed to resist, and surely those two things are very different. [Emphasis in original.]

McLachlin J. dismisses these substantial legislative developments  as an “absence of evidence that Parliament discussed or considered the matter” (par. 51), and claims therefore that any modification of the existing common law beyond an incremental change amounts to unwarranted judicial interference with Parliament’s assigned role. On the contrary, there is ample evidence to justify the conclusion that Parliament changed the approach to be taken to fraud as it relates to consent in the assault context, thereby permitting the courts to perform their proper function of discerning Parliament’s intent in order to interpret this new legislative provision. While Cory J. accepts to a certain extent that Parliament intended to unburden the notion of fraud by removing the qualification that it must relate to the nature and quality of the act, he refuses to consider that the change was as significant and principled as, for example, Mewett and Manning suggest. Accordingly, it is with what Cory J. proposes to do with this newly liberated fraud provision, that I disagree. A further examination of the assault scheme as a whole and the objectives of the Criminal Code assault provisions will, in my view, demonstrate the reasons for taking a different approach to the interpretation of s. 265(3)(c).

Section 265 of the Criminal Code describes the general elements that underlie all of the assault offences, including assault, assault causing bodily harm, aggravated assault, sexual assault and aggravated sexual assault. The essence of all forms of assault, as laid out in s. 265, is the intentional, non-consensual application of force, or the threat thereof. “Force” can include any touching, no matter the degree of strength or power applied, and therefore is not only those physical acts designed to maim or cause injury. Where the application of force is consensual, there is no assault (except in limited circumstances such as those explained in R. v. Jobidon, [1991] 2 S.C.R. 714, which does not apply to this case). However, in certain situations, s. 265(3) operates to determine when, superficial appearances to the contrary, no consent has been obtained, thus precluding any defence of consent.

As can be seen from an examination of the underlying elements of assault, which form the basis of all of the assault provisions, the Criminal Code prohibition against the intentional and non-consensual application of force is very broadly constructed. Any unwanted touching by another, no matter how minimal the force that is applied, is criminal. The physical acts prohibited by the assault scheme include not only a punch in the face, or forced sexual intercourse at knife-point, but also placing one’s hand on the thigh of the person sitting adjacent on the bus: see R. v. Burden (1981), 25 C.R. (3d) 283 (B.C.C.A.). Clearly, the purpose of the assault scheme is much broader than just the protection of persons from serious physical harm. The assault scheme is aimed more generally at protecting people’s physical integrity.

Relatedly, the assault scheme is also about protecting and promoting people’s physical autonomy, by recognizing each individual’s power to consent, or to withhold consent, to any touching. The meaningfulness of the right to consent, and thus of the right to stipulate under which conditions a person wishes to be touched, is further protected by s. 265(3). In general, s. 265(3) lists factors that have the effect of making a person’s consent to the application of force meaningless. Where those factors are present, a true expression of a complainant’s autonomous will cannot be obtained. Parliament has recognized with s. 265(3), that in order to maximize the protection of physical integrity and personal autonomy, only consent obtained without negating the voluntary agency of the person being touched, is legally valid.

Given these objectives of the Criminal Code assault scheme, and the important protections inherent in the individual’s power to consent or deny consent, how should “fraud” be interpreted in relation to consent in s. 265(3)(c)?  When interpreting s. 265(3)(c), it is important to keep in mind that it applies to consent to all forms of assault, not, for example, just sexual assault, or assault where there is  potential or actual serious physical injury. The interpretation of the fraud provision, therefore, should be based on principles that are consistent across the different assault contexts. In this respect, I must expressly disagree with the approach taken by my colleague, Cory J. In my view, his interpretation of the fraud provision is inconsistent with such a principled approach to statutory interpretation.

Cory J. states that, apart from the traditional common law approach where the fraud relates to “the nature and quality of the act”, fraud will only vitiate consent in the sexual assault context where an accused’s objectively dishonest act has “the effect of exposing the person consenting to a significant risk of serious bodily harm” (para. 128 (emphasis added)). Notwithstanding the fact that the accused in this appeal has been charged with aggravated assault and not sexual assault or aggravated sexual assault, in my view, my colleague’s test has the effect of creating a different interpretation of “fraud” depending on the sexual nature of the particular offence with which an accused has been charged. In my view, my colleague’s interpretation has the effect of undoing what Parliament accomplished with its 1983 amendment of the Criminal Code: it re-introduces, in the sexual assault context, artificial limitations as to when fraud will negate consent to physical contact. With respect, I cannot accept the correctness of such limitations, nor support reverting, once again, to the singular and differential treatment of sexual assault.

As I have explained, the assault scheme is very broad in its objectives to protect people’s physical integrity from unwanted physical contact, and to protect people’s personal autonomy to decide under what conditions they will consent to be touched. Section 265(3) provides further protection to ensure that when consent is obtained, that consent is a true reflection of a person’s autonomous will. Where fraud is concerned, Cory J. would limit its consent-vitiating effects to the traditional common law approach, and to those assault contexts where there is a “significant risk of serious bodily harm”. But that which is integral to a principled interpretation of fraud is its causal effect on consent, and the objectives of the assault scheme. Accordingly, it is appropriate to define fraud in terms of its relationship to consent, as well as to any and all forms of assault, and not just in terms of the proximity and severity of the risks associated with the acts for which consent is being given.

In my view, considering the wording of s. 265(3)(c), as well as the objectives and context of the Criminal Code and the assault scheme, fraud is simply about whether the dishonest act in question induced another to consent to the ensuing physical act, whether or not that act was particularly risky and dangerous. The focus of the inquiry into whether fraud vitiated consent so as to make certain physical contact non-consensual should be on whether the nature and execution of the deceit deprived the complainant of the ability to exercise his or her will in relation to his or her physical integrity with respect to the activity in question. As Mewett and Manning, supra, explain at p. 789: “There must be a causal connection between the fraud and the submission” to the act. Where fraud is in issue, the Crown would be required to prove beyond a reasonable doubt that the accused acted dishonestly in a manner designed to induce the complainant to submit to a specific activity, and that absent the dishonesty, the complainant would not have submitted to the particular activity, thus considering the impugned act to be a non-consensual application of force… The dishonesty of the submission-inducing act would be assessed based on the objective standard of the reasonable person. The Crown also would be required to prove that the accused  knew, or was aware, that his or her dishonest actions would induce the complainant to submit to the particular activity. For a similar articulation of the elements of fraud, see R. v. Théroux, [1993] 2 S.C.R. 5, at pp. 25-26.

In considering this case, the following facts would be sufficient to establish the objective dishonesty of the accused’s actions, and to infer that the accused knew that his actions induced the complainants’ submission to unprotected sex:  the accused knew that he was HIV-positive, he was aware of the contagious and life-threatening nature of the disease, he was advised by public health nurses to always wear a condom and inform his partners of his HIV-positive status, he expressed fears that disclosure of his status to potential partners would end his sex-life, he lied about his HIV-positive status to one of the complainants, and he failed to disclose it to the other complainant in circumstances that called for its disclosure.

In my view, this interpretation of fraud as it relates to consent has the effect of maximizing the individual’s right to determine by whom, and under what conditions, he or she will consent to physical contact by another. This approach is also respectful of the legislative context because it can be applied with equal consistency to all of the assault offences to which the fraud provision relates.

An interpretation of fraud that focuses only on the sexual assault context, and which limits it only to those situations where a “significant risk of serious bodily harm” is evident, is unjustifiably restrictive. Such a particularization and limitation is nowhere present in the assault scheme, because Parliament removed any qualifications to the fraud provision as it relates to sexual assault. It must be noted that where sexual assault is concerned, those receiving the protection of the Criminal Code are overwhelmingly women. Limiting the definition of fraud in the sexual assault context in the way that Cory J. proposes is to potentially fall into the same trap as those people who believe that rape in the absence of physical “violence”, where the complainant just froze and did not fight back or was unconscious, is not a serious crime. The essence of the offence, as I have stated, is not the presence of physical violence or the potential for serious bodily harm, but the violation of the complainant’s physical dignity in a manner contrary to her autonomous will. That violation of physical dignity and personal autonomy is what justifies criminal sanction, and always has, irrespective of the risk or degree of bodily harm involved. Why should fraud be defined more broadly in the commercial context, which is designed to protect property interests, than it is for sexual assault, which is one of the worst violations of human dignity?

Finally, my colleagues’ examples of the types of trivial conduct that will be caught by this approach are grossly overstated. Cory J. downplays the limiting effect of the fact that a causal connection  must be proven, to the imposing criminal standard, between the accused’s dishonest act and his intention to induce the submission of the complainant. For instance, a mere misrepresentation as to a man’s professional status, without proof that the man was aware that the complainant was submitting to sexual intercourse with him by reason of his lie, would not constitute sexual assault. See Mewett and Manning, supra, at pp. 789-90. Whether a complainant actually submitted to sexual intercourse by reason of an accused’s fraud will necessarily depend on an examination of all of the factors, and can only be decided on a case-by-case basis.

McLachlin J.’s predictions are even more cataclysmic. Contrary to her assertion in para. 52, it is not “any deception or dishonesty” that will be criminalized by this approach. McLachlin J. argues that based on the approach to fraud that I have explained, henceforward the “implied consent inherent in the social occasion — the handshake or social buss — are transformed by fiat of judicial pen into crimes”. But my approach to fraud will in no way catch such innocent conduct. The very notion of implied consent to touching  that is inherent in the social occasion, and indeed, inherent in so many aspects of day to day life, is based on an understanding of social realities and a need for tolerance of a reasonable degree of incidental and trivial contact. Whether or not a man is wearing a false moustache or a woman, alluring make-up, it is inconceivable that the Crown, were it foolish enough to prosecute a case of assault by handshake or social buss, would be capable of establishing beyond a reasonable doubt both that a complainant only consented to the physical contact by reason of the deception, and that the deception was employed with the knowledge and intention of inducing the submission of the complainant. In addition, the principle of de minimis non curat lex, that “the law does not concern itself with trifles” might apply in such a case: see R. v. Hinchey, [1996] 3 S.C.R. 1128, at para. 69, per L’Heureux-Dubé J. Furthermore, I cannot accept McLachlin J.’s criticism that the test suffers from imprecision and uncertainty due to the fact that the dishonesty of the act is to be assessed based on an objective standard. A majority of this Court has already accepted such an approach to the assessment of the dishonesty of the act in the criminal fraud context:  see Théroux, supra, at p. 16, per McLachlin J.

Since Parliament has, through the assault provisions, granted broad protection to individual autonomy and physical integrity in order to guard everyone’s right to decide under what conditions another may touch them, it is not for this Court to narrow this protection because it is afraid that it may reach too far into the private lives of individuals. One of those private lives  presumably belongs to a complainant, whose feeling of having been physically violated, and fraudulently deprived of the right to withhold consent, warrants the protection and condemnation provided by the Criminal Code.

Subject to these reasons, I agree with my colleagues’ disposition to allow the appeal and order a new trial. 

McLACHLIN J. (Gonthier J. concurring):—

I. Introduction

The respondent Cuerrier stands charged with aggravated assault contrary to s. 268 of the Criminal Code, R.S.C., 1985, c. C-46. The charges were based on allegations that Cuerrier had unprotected sexual intercourse with two women whom he misled regarding his HIV- positive status. The Crown alleges that this constituted fraud that vitiated the women’s consent and converted consensual sexual intercourse into assault.    

For more than a century, the law has been settled; fraud does not vitiate consent to assault unless the mistake goes to the nature of the act or the identity of the partner. Fraud as to collateral aspects of a consensual encounter, like the possibility of contracting serious venereal disease, does not vitiate consent. On this appeal the Crown asks us to change this settled law. We are asked to rule that deceiving one’s partner about the fact that one has HIV vitiates consent, converting consensual sex into assault.

My colleagues L’Heureux-Dubé J. and Cory J. propose new rules which would criminalize dishonestly obtained sex in a wide variety of circumstances. I sympathize with their goals. The venereal disease of HIV and the AIDS it causes are the cause of terrible suffering and death. The wrong done to a person who is deceived into having unprotected sexual intercourse by a lie about HIV status can be inestimable. However, I respectfully find the approaches they advocate are too broad, falling outside the power of the courts to make incremental changes to the common law. I propose a narrower extension limited to failure to disclose venereal disease. …

III. The Issues

The first issue in this case is whether Parliament, in enacting s. 265(3) of the Criminal Code, intended to criminalize deceptive sexual conduct. If it did not, a second issue arises: whether the change sought is one the courts may properly make. I will consider each issue in turn.

IV. Analysis

1. Did Parliament Intend to Change the Law of Fraud for Sexual Assault?

My colleagues L’Heureux-Dubé J. and Cory J. conclude that Parliament intended to remove the common law limitations on fraud for assault by amending s. 265(3) of the Criminal Code in 1983. With respect, I cannot agree.

Until 1983, the Criminal Code provided that consent to sexual intercourse was vitiated where it was obtained “by false and fraudulent representations as to the nature and quality of the act”. This reflected the common law which confined fraud in assault to the nature of the act (i.e., was it sexual, or something else) and the identity of the partner…

In 1983 Parliament amended the Criminal Code. The old offences of rape and indecent assault were redefined as sexual assault. A new consent provision, applying to all types of assault, sexual and non-sexual, was adopted.

The question is whether by making this change, Parliament intended to broaden the offence of assault to make it a crime for a person who has a serious venereal disease like HIV to engage in unprotected sexual intercourse without disclosing the disease to his or her partner.

In support of the argument that Parliament intended a radical departure from the traditional common law definition of fraud in assault offences, the appellant raises the wording of s. 265(3)(c) (fraud simpliciter) and the arbitrariness of limiting fraud to the nature and quality of the act. Against the argument, the respondent argues that the change in the wording is explained by the intent to group all assaults under one concept; that in the absence of clear words it cannot be presumed that Parliament intended to radically broaden the offence of assault; and that there are strong policy reasons, historically and today, for limiting fraud in the context of assault and sexual assault, making it highly improbable that Parliament would have changed the law without debating the issue.

I agree with the courts below (indeed all courts that have hitherto considered the issue since the adoption of the new definition of fraud), that the submission that Parliament intended to radically broaden the crime of assault by the 1983 amendments must be rejected. I approach the matter from the conviction that the criminalization of conduct is a serious matter. Clear language is required to create crimes. Crimes can be created by defining a new crime, or by redefining the elements of an old crime. When courts approach the definition of elements of old crimes, they must be cautious not to broaden them in a way that in effect creates a new crime. Only Parliament can create new crimes and turn lawful conduct into criminal conduct. It is permissible for courts to interpret old provisions in ways that reflect social changes, in order to ensure that Parliament’s intent is carried out in the modern era. It is not permissible for courts to overrule the common law and create new crimes that Parliament never intended.

Against this background, I turn to what Parliament intended when it adopted a new definition of fraud for assault, including sexual assault, in 1983. Can the intent to radically broaden the crime of assault be inferred from the fact that Parliament omitted the old words “nature and quality of the act”?  I think not.

First, the phrase “nature and quality of the act” did not state the law as it existed even before 1983. The criminal law of assault is an amalgam of the codified provisions of the Criminal Code and the uncodified common law. Prior to 1983, the Code’s reference  to indecent assault described the relevant concept of fraud as fraud as to the “nature and quality of the act”. It said nothing about “identity”. Yet Canadian courts for over a hundred years accepted that fraud as to identity could negate consent, on the basis of the rule at common law. In 1983 Parliament removed the reference in the Code to the other case where the common law recognized fraud vitiating consent to sexual intercourse — fraud as to the nature and quality of the act. The reasonable inference is that Parliament supposed that just as the courts had read “identity” into the criminal law of sexual assault even though the Code did not mention it, so the courts would continue to read “nature and quality of the act” into the law even though it was not mentioned. To put it another way, Parliament must be supposed to have expected that the courts would continue to read the Code provisions on sexual assault against the background of the common law, unless it used language clearly indicating that it was altering the common law. There is nothing in s. 265 of the Criminal Code to indicate an intention to remove the common law limitations on fraud for assault…

This conclusion is also supported by the rule that where a criminal statute is ambiguous, the interpretation that favours the accused is preferred:  R. v. McIntosh, [1995] 1 S.C.R. 686, at paras. 29 and 60. If the intention of Parliament can be ascertained with reasonable precision, this rule has no place:  R. v. Deruelle, [1992] 2 S.C.R. 663, at pp. 676-77. However, where, as in this case, real ambiguities are found, or doubts of substance arise, this established rule of construction applies:  Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108, at p. 115.

The jurisprudence, without exception, supports the view that Parliament intended to retain the common law definition of fraud for assault. This Court had this to say on the new wording of the fraud provision in R. v. Jobidon, [1991] 2 S.C.R. 714, at p. 739:

Parliament did not set foot into new territory when listing the four vitiating factors in s. 265(3). On the contrary it will be seen that, for the most part, that list merely concretized, and made more explicit, basic limits on the legal effectiveness of consent which had for centuries formed part of the criminal law in England and in Canada. Their expression in the Code did not reflect an intent to remove the existing body of common law which already described those limitations and their respective scope. The Code just spelled them out more clearly, in a general form. [Emphasis added.]

The issue in Jobidon was whether the courts could supplement the list of factors capable of vitiating consent in s. 265(3) on public policy grounds recognized at common law but not reflected in the wording of the Code. The Court held that s. 265(3) was not exhaustive and must be read together with the common law. Jobidon stands for the established proposition that the common law can supplement the provisions of the Code. It also stands for the proposition that the Criminal Code, s. 265(3), is a restatement of the common law and not an expansion of it. It does not support the view that the common law definition of fraud in the context of assault can be set aside in favour of the expansive definition of fraud used in the commercial context.

Other courts that have considered the meaning of  “fraud” under s. 265(3) since the 1983 amendments have concluded that Parliament cannot be taken to have intended to change the existing law of fraud in assault:  R. v. Petrozzi (1987), 35 C.C.C. (3d) 528 (B.C.C.A.); R. v. Ssenyonga (1993),81 C.C.C. (3d) 257 (Ont. Ct. (Gen. Div.)). All the judges in the courts below who considered this issue in this case were unanimous in the same view.

I conclude that the 1983 amendments to the Criminal Code did not oust the common law governing fraud in relation to assault. The common law continues to inform the concept of fraud in s. 265(3)(c) of the Criminal Code.

2. Is it Appropriate for this Court to Change the Law?

Parliament has not changed the common law definition of fraud in relation to assault. This leaves the question of whether this Court should do so.

This Court has established a rule for when it will effect changes to the common law. It will do so only where those changes are incremental developments of existing principle and where the consequences of the change are contained and predictable: Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Seaboyer, [1991] 2 S.C.R. 577; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,  [1997] 3 S.C.R. 1210. As Iacobucci J. stated in Salituro, at p. 670:

. . . in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.

The question is whether the change to the common law sought in this case falls within this test.

(a) The Courts Should Not Make the Broad Extensions to the Law of Sexual Assault  Proposed by L’Heureux-Dubé J. and Cory J.

In my respectful view, the broad changes proposed by L’Heureux-Dubé J. and Cory J. do not constitute an incremental development of this common law. Rather, they amount to abandoning the common law rule and substituting new principles in its place.

Both L’Heureux-Dubé J. and Cory J. start from the premise that Parliament in 1983 intended to repeal the common law definition of fraud for assault. They divide sharply, however, on what Parliament intended to put in its place. Cory J. says Parliament intended the definition of commercial fraud to apply, subject to limitations. L’Heureux-Dubé J., by contrast,  says that Parliament intended any deceit inducing consent to suffice. This divergence illustrates that when judges depart from the rule of incremental change to the common law, they face not only the charge that they are stepping outside the proper constitutional role of the courts, but also the practical problem of finding a new principle to put in place of the existing common law rule. Often the new principle is difficult to find and when found, proves to be an ill fit. This leads to complex ramifications, both on the theoretical and practical level. This case is no exception.

The commercial concept of fraud endorsed by Cory J. in principle vitiates consent to contact whenever there is: (1) deception; resulting in, (2) deprivation. The element of deception is satisfied by the failure to disclose. The element of deprivation is satisfied by exposure to the risk of harm.

The problem with this theory is that failure to disclose virtually any known risk of harm would potentially be capable of vitiating consent to sexual intercourse. The commercial fraud theory of consent offers no principled rationale for allowing some risks to vitiate consent to sex but excluding others. For example, pregnancy  may be regarded as a deprivation in some circumstances, as may be the obligation to support a child. It follows that lying about sterility or the effectiveness of birth control may constitute fraud vitiating consent. To take another example, lies about the prospect of marriage or false declarations of affection inducing consent, carry the risk of psychological suffering, depression and other consequences readily characterized as deprivation. The proposed rule thus has the potential to criminalize a vast array of sexual conduct. Deceptions, small and sometimes large, have from time immemorial been the by-product of romance and sexual encounters. They often carry the risk of harm to the deceived party. Thus far in the history of civilization, these deceptions, however sad, have been left to the domain of song, verse and social censure. Now, if the Crown’s theory is accepted, they become crimes.

Cory J., recognizing the overbreadth of the theory upon which he founds his reasons, attempts to limit it by introducing an ad hoc qualifier: there must be a “significant risk of serious bodily harm” before consent is vitiated. This limitation, far from solving the problem, introduces new difficulties. First, it contradicts the general theory that deception coupled with risk of deprivation suffices to vitiate consent. A new theory is required to explain why some, but not all kinds of fraud, convert consensual sex into assault. Yet none is offered. Second, it introduces uncertainty. When is a risk significant enough to qualify conduct as criminal?  In whose eyes is “significance” to be determined — the victim’s, the accused’s or the judge’s?  What is the ambit of “serious bodily harm”?  Can a bright line be drawn between psychological harm and bodily harm, when the former may lead to depression, self-destructive behaviour and in extreme cases suicide?  The criminal law must be certain. If it is uncertain, it cannot deter inappropriate conduct and loses its raison d’être. Equally serious, it becomes unfair. People who believe they are acting within the law may find themselves prosecuted, convicted, imprisoned and branded as criminals. Consequences as serious as these should not turn on the interpretation of vague terms like “significant” and “serious”. Finally, Cory J.’s limitation of the new crime to significant and serious risk of harm amounts tomaking an ad hoc choice of where the line between lawful conduct and unlawful conduct should be drawn. This Court, per Lamer C.J., has warned that making ad hoc choices is properly the task of the legislatures, not the courts: Schachter v. Canada, [1992] 2 S.C.R. 679, at p. 707.

Another cause for concern is that the extension of the criminal law of assault proposed by Cory J. represents a  curtailment of individual liberty sufficient to require endorsement by Parliament. The equation of non-disclosure with lack of consent oversimplifies the complex and diverse nature of consent. People can and do cast caution to the winds in sexual situations. Where the consenting partner accepts the risk, non-disclosure cannot logically vitiate consent. Non-disclosure can vitiate consent only where there is an assumption that disclosure will be made, and that if HIV infection were disclosed, consent would be refused. Where a person consents to take a risk from the outset, non-disclosure is irrelevant to consent. Yet the proposed test would criminalize non-disclosure nonetheless. This effectively writes out consent as a defence to sexual assault in such cases. The offence of sexual assault is replaced by a new offence — the offence of failure to disclose a serious risk…

L’Heureux-Dubé J. correctly identifies the theoretical and practical indefensibility of introducing commercial notions of fraud and then limiting them on an ad hoc basis. Having concluded that Parliament intended to repeal the common law rule that fraud vitiating consent in assault is limited to the nature and quality of the act, she endorses a new, unqualified view of fraud as any deceit inducing consent to contact. This new definition of fraud is said to be based on the “objectives and context of . . . the assault scheme” under the Criminal Code, despite the absence of evidence that Parliament discussed or considered the matter. On the assumption that Parliament intended to broaden the provisions — indeed to throw them wide open — it is concluded that “fraud is simply about whether the dishonest act in question induced another to consent to the ensuing physical act” (para. 16).

The first difficulty with this position is that it involves an assumption of Parliamentary intent to change the common law of fraud for assault that is not, as I argue earlier, valid. The second difficulty is that this approach vastly extends the offence of assault. Henceforward, any deception or dishonesty intended to induce consent to touching, sexual or non-sexual, vitiates the consent and makes the touching a crime. Social touching hitherto rendered non-criminal by the implied consent  inherent in the social occasion — the handshake or social buss — are transformed by fiat of judicial pen into crimes, provided it can be shown that the accused acted dishonestly in a manner designed to induce consent, and that the contact was, viewed objectively, induced by deception. No risk need be established, nor is there any qualifier on the nature of the deception. Will alluring make-up or a false moustache suffice to render the casual social act criminal?  Will the false promise of a fur coat used to induce sexual intercourse render the resultant act a crime?  The examples are not frivolous, given the absence of any qualifiers on deception. A third difficulty is that this approach, like that of Cory J., suffers from imprecision and uncertainty. The test is said to be objective. Yet what constitutes deception is by its very nature highly subjective. One person’s blandishment is another person’s deceit, and on this theory, crime.

Not only is the proposed extension of the law sweeping, it is unprecedented. We have been told of no courts or legislatures in this or other countries  that  have gone so far. To the extent that Canadian law has criminalized deception, it has done so only where the deception results in actual harm or a risk of harm. The rule proposed by L’Heureux-Dubé J. would eliminate the need to show risk of harm and make deception alone the condition of criminal responsibility for sexual contact. Overbreadth on this scale cannot be cured by administrative action. Prosecutorial deference cannot compensate for overextension of the criminal law; it merely replaces overbreadth and uncertainty at the judicial level with overbreadth and uncertainty at both the prosecutorial level and the judicial level.

The theoretical difficulties with both proposals put forward by my colleagues are matched by the practical problems they would introduce. The changes  proposed are of great consequence. The law does not presently make it an offence to engage in sexual contact without disclosing to one’s partner possible risks, as Cory J. proposes. Nor does it make every deception inducing consent to physical contact a crime, as L’Heureux-Dubé J. proposes. What we know about the spread of HIV and other venereal diseases suggests that thousands of people engage in just such conduct every day. Henceforward, if the sweeping changes suggested are accepted, these people will be criminals, subject to investigation, prosecution and imprisonment. Literally millions of acts, which have not to date been regarded as criminal, will now be criminalized. Individual liberty will be curtailed. Police, prosecutors, the courts and the prisons will be dramatically affected. Such a change, if it is to be made,  is best made by Parliament after full debate as to its ramifications and costs…

I conclude that, attractive as the blanket criminalization of non-disclosure of risk or deceit inducing consent to contact may seem at first blush, the theoretical and practical difficulties involved in extensions of this magnitude are prohibitive of judicial action. The version of the new offence adopted by Cory J. violates the theory upon which it is erected; if consent is revoked by fraud in the commercial sense of deception producing risk of deprivation, there is no basis for limiting the vitiation of consent to significant risk of serious bodily harm, whatever that may mean. The version advocated by L’Heureux-Dubé J. avoids this logical pitfall, but at the price of overextension. Neither version, with respect, provides a satisfactory foundation for the attribution of criminal responsibility, and both versions would introduce changes with serious ramifications for individuals, law enforcement agencies and those struggling in the war against HIV. Such changes fall outside the proper sphere of judicial law reform.

(b) A Smaller, Incremental Change Can Be Made

I have concluded that the broad-based proposals for changing the law  put forward by my colleagues go much further than the incremental change to the common law permitted to courts. However, it does not follow that all change to the law of assault is barred. It is open to courts to make incremental changes by extending the common law concepts of nature of the act and identity, provided the ramifications of the changes are not overly complex. Before the appeal can be rejected, it is necessary to consider whether this can be done…

In order to determine the ambit of the common law on consent to contact, and in particular sexual contact, it is necessary to consider the history of the common law on consent in the context of assault and the origin of the phrase “nature of the act”.

Prior to R. v. Clarence (1888), 22 Q.B.D. 23 [Stephen, J.], the common law held that deceit as to the fact that one had a venereal disease was capable of vitiating consent to intercourse….

Against this background, I return to the conditions for court-made change. The basic precondition of such change is that it is required to bring the law into step with the changing needs of society. This established, the change must meet the condition of being an incremental development of the common law that does not possess unforeseeable and complex ramifications.

In the case at bar, I am satisfied that the current state of the law does not reflect the values of Canadian society. It is unrealistic, indeed shocking, to think that consent given to sex on the basis that one’s partner is HIV-free stands unaffected by blatant deception on that matter. To put it another way, few would think the law should condone a person who has been asked whether he has HIV, lying about that fact in order to obtain consent. To say that such a person commits fraud vitiating consent, thereby rendering the contact an assault, seems right and logical.

Prior to Clarence, the common law recognized that deception as to sexually transmitted disease carrying a high risk of infection, constituted fraud vitiating consent to sexual intercourse. Returning the law to this position would represent an incremental change to the law. If it was an increment to reverse the previous common law rule that deceit as to venereal disease could vitiate consent, it is no greater increment to reverse that decision and return to the former state of the law. The change is, moreover, consistent with Parliament’s 1983 amendment of the Criminal Code to remove the phrase “nature and quality of the act”, which suggests that Parliament, while retaining the common law of fraud in relation to consent negativing assault, did not wish to freeze the restrictive mould of Clarence.

The final and most difficult question is whether the change would introduce complex and unforeseeable changes of the sort better left to Parliament. The first objection under this head is that made by Stephen J. in Clarence, that no clear line can be drawn between criminal and non-criminal conduct once the law leaves the certainty of the dual criteria of nature of the act in the sense of whether it was sexual or non-sexual, and the identity of the perpetrator. The argument is made that to go beyond these criteria would be to open the door to convictions for assault in the case, for example, where a man promises a woman a fur coat in return for sexual intercourse: Fifteenth Report of the Criminal Law Revision Committee on Sexual Offences (Cmnd 9213), cited with approval in R. v. Linekar, [1995] 3 All E.R. 69 (C.A.).

This difficulty is a serious one. The courts should not broaden the criminal law to catch conduct that society generally views as non-criminal. If that is to be done, Parliament must do it. Furthermore, the criminal law must be clear. I agree with the fundamental principle affirmed in the English cases that it is imperative that there be a clear line between criminal and non-criminal conduct. Absent this, the criminal law loses its deterrent effect and becomes unjust. For these reasons, I earlier argued against Cory J.’s imposition of criminal liability for non-disclosure in cases of “significant risk of serious harm”, and L’Heureux-Dubé J.’s approach of finding fraud for every deception inducing consent.

The question is whether a narrower increment is feasible that catches only harm of the sort at issue in this appeal and draws the required bright line. In my view, it is. A return to the pre-Clarence view of the common law would draw a clear line between criminal conduct and non-criminal conduct. As I have explained, pre-Clarence, the law permitted fraud to vitiate consent to contact where there was (a) a deception as to the sexual character of the act; (b) deception as to the identity of the perpetrator; or (c) deception as to the presence of a sexually transmitted disease giving rise to serious risk or probability of infecting the complainant (Sinclair, supra). This rule is clear and contained. It would catch the conduct here at issue, without permitting people to be convicted of assault for inducements like false promises of marriage or fur coats. The test for deception would be objective, focussing on whether the accused falsely represented to the complainant that he or she was disease-free when he knew or ought to have known that there was a high risk of infecting his partner. The test for inducement would be subjective, in the sense that the judge or jury must be satisfied beyond a reasonable doubt that the fraud actually induced the consent.

From a theoretical point of view, the proposed change follows the time-honoured methodology of making changes to the common law on an incremental basis. This, however, is not enough. The addition of a new common law category should reflect some underlying principle that ties it to the logic and policy underlying the existing rule and permits future developments, if any, to proceed on a reasoned, principled basis. If the underlying principle is so broad that it admits of extension into debateable or undesirable areas, then the proposed change should not be made. It was the inability to identify such a principle that seems to have lain behind the decision in Clarence to narrow the rule, and the recent decision of the English Court of Appeal in Linekar not to extend the rule to deceit as to payment for sexual services.

With the greatest of deference to the learned judges in these cases, an explanation may be suggested for why deceit as to venereal disease may vitiate consent while deceit as to other inducements, like promises of marriage or fur coats, does not. Consent to unprotected sexual intercourse is consent to sexual congress with a certain person and to the transmission of bodily fluids from that person. Where the person represents that he or she is disease-free, and consent is given on that basis, deception on that matter goes to the very act of assault. The complainant does not consent to the transmission of diseased fluid into his or her body. This deception in a very real sense goes to the nature of the sexual act, changing it from an act that has certain natural consequences (whether pleasure, pain or pregnancy), to a potential sentence of disease or death. It differs fundamentally from deception as to the consideration that will be given for consent, like marriage, money or a fur coat, in that it relates to the physical act itself. It differs, moreover, in a profoundly serious way that merits the criminal sanction.

This suffices to justify the position of the common law pre-Clarence that deception as to venereal disease may vitiate consent. The question of whether other categories of fraud could be logically added on the basis that deceit as to them also fundamentally alters the nature of the physical act itself, is better left for another day. It is doubtful that natural consequences, like pregnancy, would qualify, as they are the natural concomitant of the sexual act, and do not fundamentally alter its nature. Similarly, as discussed, promises as to future conduct used to induce consent do not fundamentally change the nature of the physical act. Again, protected sex would not be caught; the common law pre-Clarence required that there be a high risk or probability of transmitting the disease:  Sinclair, supra. These observations largely displace the fear of unprincipled overextension that motivated the majority in Clarence to exclude deceit as to sexually transmitted disease as a basis on which fraud could vitiate consent.

It remains to consider the argument that extending the law, even in this limited fashion, will have unforeseen, complex and undesirable ramifications. Regrettable as it is, it may be that criminalizing deceit as to sexually transmitted disease inducing consent may prevent some people from seeking testing and treatment, out of fear that if they learn about their disease they will be forced to choose between abstaining from unprotected sexual relations and becoming criminals. On the other hand, it may foster greater disclosure. The message that people must be honest about their communicable diseases is an important one. Conduct like that in the case at bar shocks the conscience and should permit of a criminal remedy. In addition, the proposed extension of the law is relatively narrow, catching only deceit as to venereal disease where it is established, beyond a reasonable doubt, that there was a high risk of infection and that the defendant knew or ought to have known that the fraud actually induced consent to unprotected sex. Finally, I note that s. 221 of the Criminal Code (criminal negligence causing bodily harm) already makes it a crime to engage in unprotected sexual intercourse without disclosing HIV-positive status where the sexual partner contracts HIV as a result:  R. v. Mercer (1993), 84 C.C.C. (3d) 41 (Nfld. C.A.). There is no evidence that the application of s. 221 has had an adverse effect on testing by extending criminal responsibility to cases where the defendant’s partners are unfortunate enough to have been infected. The extension I propose represents only a modest step beyond this offence. Bearing in mind all of these considerations, I am satisfied that this limited change will not have far-reaching, unforeseeable or undesirable ramifications.

I conclude that the common law should be changed to permit deceit about sexually transmitted disease that induces consent to be treated as fraud vitiating consent under s. 265 of the Criminal Code.

V. Conclusion

I would allow the appeal and order that a new trial be directed.

CORY J. (Major, Bastarache and Binnie JJ. concurring):— Is a complainant’s consent to engage in unprotected sexual intercourse vitiated by fraud when her partner knows he is HIV‑positive and either fails to disclose or deliberately deceives her about it?  If the consent is fraudulently obtained in those circumstances can s. 268 (aggravated assault) of the Criminal Code, R.S.C., 1985, c. C‑46, be applicable?  Would the application of the Criminal Code endanger public health policies pertaining to the disease of AIDS?  Those are the issues that must be considered on this appeal.

I. Factual Background

The respondent tested positive for HIV in August 1992. At that time a public health nurse explicitly instructed him to use condoms every time he engaged in sexual intercourse and to inform all prospective sexual partners that he was HIV‑positive. The respondent angrily rejected this advice. He complained that he would never be able to have a sex life if he told anyone that he was HIV‑positive.

Three weeks later, the respondent met the complainant KM and an 18‑month relationship began. The couple had sexual intercourse, for the most part unprotected, at least 100 times. Near the beginning of the relationship, KM discussed sexually transmitted diseases with the respondent and although she did not specifically ask him about HIV or AIDS, he assured her that he had tested negative for HIV eight or nine months earlier. KM developed hepatitis and was advised to have an HIV test. Both she and the respondent were tested in January 1993. In February, a nurse informed KM that her test was negative but that the respondent had tested HIV‑positive. KM was advised to undertake subsequent tests to determine whether she had developed the virus.

Once again, the respondent was told that he must use condoms and inform his sexual partners that he was HIV‑positive. The respondent replied that in order to avoid using condoms he would wait and see if KM tested positive in a few months and, if not, he would leave her and start a relationship with an HIV‑positive woman.

For several months KM continued to have unprotected sex with the respondent. This she did because she loved him and she did not want to put another woman at risk. Their relationship ended in May 1994. KM testified that if she had known that the respondent was HIV‑positive she would never have engaged in unprotected sexual intercourse with him.

Upon hearing that the relationship between KM and the respondent had ended, a public health nurse delivered letters to the respondent ordering him to inform his future partners that he was HIV‑positive and to use condoms. Shortly thereafter, the respondent formed a sexual relationship with BH. They had sex 10 times, on most occasions without a condom. Although BH told the respondent that she was afraid of diseases he did not inform her that he was HIV‑positive. In late June BH discovered that the respondent had HIV. She confronted him and he apologized for lying. BH testified that if she had known the respondent had HIV she would never have engaged in unprotected sexual intercourse with him.

The respondent was charged with two counts of aggravated assault. At the time of trial, neither complainant had tested positive for the virus. The trial judge entered a directed verdict acquitting the respondent. The Court of Appeal refused to set aside the acquittals….

III. Relevant Statutory Provisions

Criminal Code, R.S.C., 1985, c. C‑46

265. (1)  A person commits an assault when
(a)  without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
. . .
(2)  This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
(3)  For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a)  the application of force to the complainant or to a person other than the complainant;
(b)  threats or fear of the application of force to the complainant or to a person other than the complainant;
(c)  fraud; or
(d)  the exercise of authority.

268. (1)  Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
(2)  Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

IV. Analysis

The respondent was charged with two counts of aggravated assault. This charge requires the Crown to prove first that the accused’s acts “endanger[ed] the life of the complainant” (s. 268(1)) and, second, that the accused intentionally applied force without the consent of the complainant (s. 265(1)(a)). Like the Court of Appeal and the trial judge I agree that the first requirement was satisfied. There can be no doubt the respondent endangered the lives of the complainants by exposing them to the risk of HIV infection through unprotected sexual intercourse. The potentially lethal consequences of infection permit no other conclusion. Further, it is not necessary to establish that the complainants were in fact infected with the virus. There is no prerequisite that any harm must actually have resulted. This first requirement of s. 268(1) is satisfied by the significant risk to the lives of the complainants occasioned by the act of unprotected intercourse.

The second requirement of applied force without the consent of the complainants presents greater difficulties. Both complainants consented to engage in unprotected sexual intercourse with the respondent. This must include consent to the application of the force inherent in that activity. The Crown contends that the complainants’ consent was not legally effective because it was obtained by fraud. The complainants testified that if they had been informed that the respondent was HIV‑positive they would never have agreed to unprotected sexual intercourse with him.

A. The Approach to Fraud Vitiating Consent After R. v. Clarence

Up until 1983, the indecent assault provisions in the Code provided that consent was vitiated where it was obtained “by false and fraudulent representations as to the nature and quality of the act”. The requirement that fraud relate to the “nature and quality of the act” reflected the approach to consent in sexual assault cases which has existed at common law since R. v. Clarence (1888), 22 Q.B.D. 23. There it was held by the majority that a husband’s failure to disclose that he had gonorrhea did not vitiate his wife’s consent to sexual intercourse. It was stated at p. 44 that:

the only sorts of fraud which so far destroy the effect of a woman’s consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act.


In 1983, the Criminal Code was amended. The rape and indecent assault provisions were replaced by the offence of sexual assault. The s. 265 assault provision was enacted in its present form, and it, by the terms of s. 265(2), applies to all forms of assault, including sexual assault.

Section 265(3)(c) simply states that no consent is obtained where the complainant submits or does not resist by reason of “fraud”. There are no limitations or qualifications on the term “fraud”. Nonetheless, some controversy has arisen as to whether the apparently clear language of the new section removed the requirement that fraud vitiating consent must relate to the “nature and quality of the act”…

It cannot be forgotten that the decision in Clarence is based on a harsh and antiquated view of marriage. Specifically, that a husband could not be guilty of raping his wife since the marital relationship implied, in law, the wife’s consent to all sexual relations. Further, the very narrow interpretation of fraud was based on the view that it would be undesirable to treat fraud in a case of assault or sexual assault in the same way that it is treated in criminal or commercial contexts…

In my opinion, both the legislative history and the plain language of the provision suggest that Parliament intended to move away from the rigidity of the common law requirement that fraud must relate to the nature and quality of the act. The repeal of statutory language imposing this requirement and its replacement by a reference simply to fraud indicates that Parliament’s intention was to provide a more flexible concept of fraud in assault and sexual assault cases…

I am mindful of the careful comments of Gonthier J. in Jobidon, supra, that the enactment of s. 265(3) “did not reflect an intent to remove the existing body of common law which already described those limitations and their respective scope” (p. 739). However, the issue in Jobidon was whether factors not explicitly listed in s. 265(3), which had previously been held to vitiate consent at common law, were still applicable. Gonthier J. concluded that s. 265(3) was not exhaustive and that consent could be vitiated on public policy grounds in a limited number of circumstances. By way of contrast the case at bar requires an interpretation of the concept of fraud which is explicitly included in s. 265(3) in an unlimited manner. The issue thus is whether limitations which previously existed at common law and in the Code should continue to apply. The reasoning in Jobidon indicates that it would be appropriate to broadly interpret fraud in these circumstances where the limiting words were specifically removed from the section.

I would therefore conclude that it is no longer necessary when examining whether consent in assault or sexual assault cases was vitiated by fraud to consider whether the fraud related to the nature and quality of the act. A principled approach consistent with the plain language of the section and an appropriate approach to consent in sexual assault matters is preferable. To that end, I see no reason why, with appropriate modifications, the principles which have historically been applied in relation to fraud in criminal law cannot be used.

It is now necessary to consider the nature of fraud and how it should be applied in the context of the wording of the present s. 265.

B. How Has Fraud Been Defined?

From its inception, the concept of criminal fraud has had two constituent elements. Stephen, A History of the Criminal Law of England (1883), vol. 2, described them in this way at pp. 121‑22:

. . . there is little danger in saying that whenever the words “fraud” or “intent to defraud” or “fraudulently” occur in the definition of a crime two elements at least are essential to the commission of the crime; namely, first, deceit or an intention to deceive or in some cases mere secrecy; and, secondly, either actual injury or possible injury or an intent to expose some person either to actual injury or to a risk of possible injury by means of that deceit or secrecy.


The [approach from R. v. Olan, [1978] 2 S.C.R. 1175] was endorsed in R. v. Théroux, [1993] 2 S.C.R. 5. There the importance of defining the offence of fraud in light of the underlying objective of promoting honesty in commercial dealings was emphasized. McLachlin J. described the requisite elements of criminal fraud in these words, at pp. 25‑26:

To establish the actus reus of fraud, the Crown must establish beyond a reasonable doubt that the accused practised deceit, lied, or committed some other fraudulent act. . . . [I]t will be necessary to show that the impugned act is one which a reasonable person would see as dishonest. Deprivation or the risk of deprivation must then be shown to have occurred as a matter of fact. To establish the mens rea of fraud the Crown must prove that the accused knowingly undertook the acts which constitute the falsehood, deceit or other fraudulent means, and that the accused was aware that deprivation could result from such conduct.

It was held that mere negligent misrepresentation would not amount to a fraudulent act. However, “deliberately practised fraudulent acts which, in the knowledge of the accused, actually put the property of others at risk” should be subject to criminal sanction (p. 26).

Next it must be determined whether non‑disclosure can constitute fraud. Traditionally, courts were of the view that fraud does not include non‑disclosure (R. v. Brasso Datsun (Calgary) Ltd. (1977), 39 C.R.N.S. 1 (Alta. S.C.T.D.)). However, Olan, supra, and Théroux, supra, have endorsed a wider interpretation of fraud which can include non‑disclosure in circumstances where it would be viewed by the reasonable person as dishonest. This view was upheld in R. v. Zlatic, [1993] 2 S.C.R. 29. At p. 44 McLachlin J. speaking for the majority, held that if the means to the alleged fraud can be characterized objectively as dishonest they are fraudulent. This, it was observed, can include the non‑disclosure of important facts.

In summary, it can be seen that the essential elements of fraud are dishonesty, which can include non‑disclosure of important facts, and deprivation or risk of deprivation.

The principles which have been developed to address the problem of fraud in the commercial context can, with appropriate modifications, serve as a useful starting point in the search for the type of fraud which will vitiate consent to sexual intercourse in a prosecution for aggravated assault. It is now necessary to consider the type of fraud or fraudulent conduct which will vitiate consent in cases of sexual assault.

C. What Is the Type of Fraud Which May Vitiate Consent in Cases of Sexual Assault?

At the outset it can be accepted that fraud pertaining to the nature and quality of the act or the identity of the partner will still constitute fraud which can be found to vitiate consent. What other acts of dishonesty which give rise to the risk of deprivation can have the same effect?....

The Clarence decision … held that non‑disclosure of a venereal infection was not related to the nature of the act of sexual intercourse and therefore the fraud did not vitiate the consent. For the reasons set out earlier neither the reasoning or conclusion reached in Clarence are acceptable.

The deadly consequences that non‑disclosure of the risk of HIV infection can have on an unknowing victim, make it imperative that as a policy the broader view of fraud vitiating consent advocated in the pre‑Clarence cases and in the U.S. decisions should be adopted. Neither can it be forgotten that the Criminal Code has been evolving to reflect society’s attitude towards the true nature of the consent. The marital rape exemption was repealed in Canada in 1983. The defence of mistaken belief in consent was narrowed in the 1992 amendments. Section 273.2(b) eliminated consent as a defence to sexual assault in situations where the accused did not take reasonable steps to ascertain that the complainant was consenting.

In my view, it should now be taken that for the accused to conceal or fail to disclose that he is HIV‑positive can constitute fraud which may vitiate consent to sexual intercourse.

D. Will There Be a Valid Consent in the Absence of Disclosure?

Persons knowing that they are HIV‑positive who engage in sexual intercourse without advising their partner of the disease may be found to fulfil the traditional requirements for fraud namely dishonesty and deprivation. That fraud may vitiate a partner’s consent to engage in sexual intercourse.

The first requirement of fraud is proof of dishonesty. In light of the provisions of s. 265, the dishonest action or behaviour must be related to the obtaining of consent to engage in sexual intercourse, in this case unprotected intercourse. The actions of the accused must be assessed objectively to determine whether a reasonable person would find them to be dishonest. The dishonest act consists of either deliberate deceit respecting HIV status or non‑disclosure of that status. It cannot be forgotten that the act of intercourse is usually far more than the mere manifestation of the drive to reproduce. It can be the culminating demonstration of love, admiration and respect. It is the most intimate of physical relations and what actions and reactions led to mutual consent to undertake it will in retrospect be complex. It would be pointless to speculate whether consent would more readily follow deliberate falsehoods than failure to disclose. The possible consequence of engaging in unprotected intercourse with an HIV‑positive partner is death. In these circumstances there can be no basis for distinguishing between lies and a deliberate failure to disclose.

Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather it must be consent to have intercourse with a partner who is HIV‑positive. True consent cannot be given if there has not been a disclosure by the accused of his HIV‑positive status. A consent that is not based upon knowledge of the significant relevant factors is not a valid consent. The extent of the duty to disclose will increase with the risks attendant upon the act of intercourse. To put it in the context of fraud the greater the risk of deprivation the higher the duty of disclosure. The failure to disclose HIV‑positive status can lead to a devastating illness with fatal consequences. In those circumstances, there exists a positive duty to disclose. The nature and extent of the duty to disclose, if any, will always have to be considered in the context of the particular facts presented.

The second requirement of fraud is that the dishonesty result in deprivation, which may consist of actual harm or simply a risk of harm. Yet it cannot be any trivial harm or risk of harm that will satisfy this requirement in sexual assault cases where the activity would have been consensual if the consent had not been obtained by fraud. For example, the risk of minor scratches or of catching cold would not suffice to establish deprivation. What then should be required?  In my view, the Crown will have to establish that the dishonest act (either falsehoods or failure to disclose) had the effect of exposing the person consenting to a significant risk of serious bodily harm. The risk of contracting AIDS as a result of engaging in unprotected intercourse would clearly meet that test. In this case the complainants were exposed to a significant risk of serious harm to their health. Indeed their very survival was placed in jeopardy. It is difficult to imagine a more significant risk or a more grievous bodily harm. As Holland, supra, at p. 283, wrote:

The consequences of transmission are grave: at the moment there is no “cure”, a person infected with HIV is considered to be infected for life. The most pessimistic view is that without a cure all people infected with the virus will eventually develop AIDS and die prematurely.

To have intercourse with a person who is HIV‑positive will always present risks. Absolutely safe sex may be impossible. Yet the careful use of condoms might be found to so reduce the risk of harm that it could no longer be considered significant so that there might not be either deprivation or risk of deprivation. To repeat, in circumstances such as those presented in this case, there must be a significant risk of serious bodily harm before the section can be satisfied. In the absence of those criteria, the duty to disclose will not arise.

In situations such as that presented in this case it must be emphasized that the Crown will still be required to prove beyond a reasonable doubt that the complainant would have refused to engage in unprotected sex with the accused if she had been advised that he was HIV-positive. As unlikely as that may appear it remains a real possibility. In the words of other decisions it remains a live issue.

Since writing I have had the opportunity of reading the reasons of L’Heureux-Dubé J. written with her customary clarity. It is her position (at para. 16) that any fraud that is “designed to induce the complainant to submit” to the act will vitiate consent and constitute an assault. In her view to do anything less would set a separate standard for fraud in cases of sexual assaults. With respect, this appears to add an additional mens rea requirement for fraud, but more importantly this position could give rise to unfortunate consequences. It would trivialize the criminal process by leading to a proliferation of petty prosecutions instituted without judicial guidelines or directions.

It must be remembered that what is being considered is a consensual sexual activity which would not constitute assault were it not for the effect of fraud. Obviously if the act of intercourse or other sexual activity was consensual it could not be an assault. It is only because the consent was obtained by fraud that it is vitiated. Aggravated assault is a very serious offence. Indeed, a conviction for any sexual assault has grave consequences. The gravity of those offences makes it essential that the conduct merit the consequences of conviction.

In the case at bar, the failure to disclose the presence of HIV put the victims at a significant risk of serious bodily harm. The assault provisions of the Criminal Code are applicable and appropriately framed to deter and punish this dangerous and deplorable behaviour. To say that any fraud which induces consent will vitiate consent would bring within the sexual assault provisions of the Code behaviour which lacks the reprehensible character of criminal acts. Let us consider some of the situations which would become criminal if this approach were followed.

In these examples I will assume that it will more often be the man who lies but the resulting conviction and its consequences would be the same if it were the woman. Let us assume that the man lied about his age and consensual sexual act or acts then took place. The complainant testifies and establishes that her consent would never have been given were it not for this lie and that detriment in the form of mental distress, had been suffered. Fraud would then be established as a result of the dishonesty and detriment and although there had been no serious risk of significant bodily harm a conviction would ensure.

The same result would necessarily follow if the man lied as to the position of responsibility held by him in a company; or the level of his salary; or the degree of his wealth; or that he would never look at or consider another sexual partner; or as to the extent of his affection for the other party; or as to his sexual prowess. The evidence of the complainant would establish that in each case the sexual act took place as a result of the lie and detriment was suffered. In each case consent would have been obtained by fraud and a conviction would necessarily follow. The lies were immoral and reprehensible but should they result in a conviction for a serious criminal offence?  I trust not. It is no doubt because of this potential trivialization that the former provisions of the Code required the fraud to be related to the nature and quality of the act. This was too restrictive. Yet some limitations on the concept of fraud as it applies to s. 265(3)(c) are clearly necessary or the courts would be overwhelmed and convictions under the sections would defy common sense. The existence of fraud should not vitiate consent unless there is a significant risk of serious harm. Fraud which leads to consent to a sexual act but which does not have that significant risk might ground a civil action. However, it should not provide the foundation for a conviction for sexual assault. The fraud required to vitiate consent for that offence must carry with it the risk of serious harm. This is the standard which I think is appropriate and provides a reasonable balance between a position which would deny that the section could be applied in cases of fraud vitiating consent and that which would proliferate petty prosecutions by providing that any fraud which induces consent will vitiate that consent.

Nor can prosecutorial discretion be used or considered as a means of restraining these prosecutions. In R. v. Nikal, [1996] 1 S.C.R. 1013, it was held that “the holder of a constitutional right need not rely upon the exercise of prosecutorial discretion and restraint for the protection of [that] right” (p. 1063). This same principle is applicable in this situation. There is a healthy reluctance to endorse the exercise of prosecutorial discretion as a legitimate means of narrowing the applicability of a criminal section.

It follows that in circumstances such as those presented in this case there must be a significant risk of serious harm if the fraud resulting from non-disclosure is to vitiate the consent to the act of intercourse. For the purposes of this case, it is not necessary to consider every set of circumstances which might come within the proposed guidelines. The standard is sufficient to encompass not only the risk of HIV infection but also other sexually transmitted diseases which constitute a significant risk of serious harm. However, the test is not so broad as to trivialize a serious offence.

In summary, on facts presented in this case, it would be open to the trier of fact to conclude that the respondent’s failure to disclose his HIV‑positive status was dishonest; that it resulted in deprivation by putting the complainants at a significant risk of suffering serious bodily harm. If that conclusion is reached, the complainants’ consent to sexual intercourse could properly be found to have been vitiated by fraud. It can be seen that applying the proposed standard effectively resolves the issue in this case. However, it is said that the test is too vague. Yet, it cannot be forgotten that all tests or definitions are based on words. They are the building blocks of the law.

The phrase “significant risk of serious harm” must be applied to the facts of each case in order to determine if the consent given in the particular circumstances was vitiated. Obviously consent can and should, in appropriate circumstances, be vitiated. Yet this should not be too readily undertaken. The phrase should be interpreted in light of the gravity of the consequences of a conviction for sexual assault and with the aim of avoiding the trivialization of the offence. It is difficult to draw clear bright lines in defining human relations particularly those of a consenting sexual nature. There must be some flexibility in the application of a test to determine if the consent to sexual acts should be vitiated. The proposed test may be helpful to courts in achieving a proper balance when considering whether on the facts presented, the consent given to the sexual act should be vitiated.
….
In summary, an individual who knows he is HIV‑positive and has unprotected sexual intercourse without disclosing this condition to his partner may be found guilty of contravening the provisions of s. 265 of the Criminal Code. The section provides protection by way of deterrence for those in the position of the complainants. This section like so many provisions of the Code is designed to protect society and this protective role must be recognized and enforced. It is right and proper for Public Health authorities to be concerned that their struggles against AIDS should not be impaired. Yet the Criminal Code does have a role to play. Through deterrence it will protect and serve to encourage honesty, frankness and safer sexual practices. If the application of the Criminal Code really does impede the control of AIDS it will be for Parliament to determine whether the protection afforded by the Code should be curtailed in the interests of controlling the plague solely by public health measures.

* * *

R. v. Ewanchuk
Supreme Court of Canada
[1999] 1 S.C.R. 330

The judgment of Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by;

MAJOR J.:—  In the present appeal the accused was acquitted of sexual assault. The trial judge relied on the defence of implied consent. This was a mistake of law as no such defence is available in assault cases in Canada. This mistake of law is reviewable by appellate courts, and for the reasons that follow the appeal is allowed.

I.  Facts

The complainant was a 17-year-old woman living in the city of Edmonton. She met the accused respondent Ewanchuk on the afternoon of June 2, 1994, while walking through the parking lot of the Heritage Shopping Mall with her roommate. The accused, driving a red van towing a trailer, approached the two young women. He struck up a conversation with them. He related that he was in the custom wood-working business and explained that he displayed his work at retail booths in several shopping malls. He said that he was looking for staff to attend his displays, and asked whether the young women were looking for work. The complainant’s friend answered that they were, at which point the accused asked to interview her friend privately. She declined, but spoke with the accused beside his van for some period of time about the sort of work he required, and eventually exchanged telephone numbers with the accused.

The following morning the accused telephoned the apartment where the complainant and her friend resided with their boyfriends. The complainant answered the phone. She told the accused that her friend was still asleep. When he learned this, the accused asked the complainant if she was interested in a job. She indicated that she was, and they met a short time later, again in the Heritage Mall parking lot. At the accused’s suggestion, the interview took place in his van. In the words of the complainant, a “very business-like, polite” conversation took place. Some time later, the complainant asked if she could smoke a cigarette, and the accused suggested that they move outside since he was allergic to cigarette smoke.  Once outside the van, he asked the complainant if she would like to see some of his work, which was kept inside the trailer attached to his van, and she indicated that she would.

The complainant entered the trailer, purposely leaving the door open behind her. The accused followed her in, and closed the door in a way which made the complainant think that he had locked it. There is no evidence whether the door was actually locked, but the complainant stated that she became frightened at this point. Once inside the trailer, the complainant and the accused sat down side-by-side on the floor of the trailer.  They spoke and looked through a portfolio of his work. This lasted 10 to 15 minutes, after which the conversation turned to more personal matters.

During the time in the trailer the accused was quite tactile with the complainant, touching her hand, arms and shoulder as he spoke. At some point the accused said that he was feeling tense and asked the complainant to give him a massage. The complainant complied, massaging the accused’s shoulders for a few minutes. After she stopped, he asked her to move in front of him so that he could massage her, which she did. The accused then massaged the complainant’s shoulders and arms while they continued talking. During this mutual massaging the accused repeatedly told the complainant to relax, and that she should not be afraid. As the massage progressed, the accused attempted to initiate more intimate contact. The complainant stated that, “he started to try to massage around my stomach, and he brought his hands up around — or underneath my breasts, and he started to get quite close up there, so I used my elbows to push in between, and I said, No”.

The accused stopped immediately, but shortly thereafter resumed non-sexual massaging, to which the complainant also said, “No”. The accused again stopped, and said, “See, I’m a nice guy. It’s okay”.

The accused then asked the complainant to turn and face him. She did so, and he began massaging her feet. His touching progressed from her feet up to her inner thigh and pelvic area. The complainant did not want the accused to touch her in this way, but said nothing as she said she was afraid that any resistance would prompt the accused to become violent. Although the accused never used or threatened any force, the complainant testified that she did not want to “egg [him] on”. As the contact progressed, the accused laid himself heavily on top of the complainant and began grinding his pelvic area against hers. The complainant testified that the accused asserted, “that he could get me so horny so that I would want it so bad, and he wouldn’t give it to me because he had self-control”.

The complainant did not move or reciprocate the contact. The accused asked her to put her hands across his back, but she did not; instead she lay “bone straight”. After less than a minute of this the complainant asked the accused to stop. ”I said, Just please stop. And so he stopped”. The accused again told the complainant not to be afraid, and asked her if she trusted that he wouldn’t hurt her. In her words, the complainant said, “Yes, I trust that you won’t hurt me”. On the stand she stated that she was afraid throughout, and only responded to the accused in this way because she was fearful that a negative answer would provoke him to use force.

After this brief exchange, the accused went to hug the complainant and, as  he did so, he laid on top of her again, continuing the pelvic grinding.  He also began moving his hands on the complainant’s inner thigh, inside her shorts, for a short time. While still on top of her the accused began to fumble with his shorts and took out his penis. At this point the complainant again asked the accused to desist, saying, “No, stop”.

Again, the accused stopped immediately, got off the complainant, smiled at her and said something to the effect of, “It’s okay. See, I’m a nice guy, I stopped”. At this point the accused again hugged the complainant lightly before opening up his wallet and removing a $100 bill, which he gave to the complainant. She testified that the accused said that the $100 was for the massage and that he told her not to tell anyone about it. He made some reference to another female employee with whom he also had a very close and friendly relationship, and said that he hoped to get together with the complainant again.

Shortly after the exchange of the money the complainant said that she had to go. The accused opened the door and the complainant stepped out. Some further conversation ensued outside the trailer before the complainant finally left and walked home. On her return home the complainant was emotionally distraught and contacted the police.

At some point during the encounter the accused provided the complainant with a brochure describing his woodwork and gave her his name and address, which she wrote on the brochure. The investigating officer used this information to locate the accused at his home, where he was arrested. He was subsequently charged with sexual assault and tried before a judge sitting alone.

The accused did not testify, leaving only the complainant’s evidence as to what took place between them. The trial judge found her to be a credible witness and her version of events was not contradicted or disputed. In cross-examination the complainant testified that, although she was extremely afraid throughout the encounter, she had done everything possible to project a confident demeanour, in the belief that this would improve her chances of avoiding a violent assault. The following passage is illustrative of her evidence:

Q: You didn’t want to show any discomfort, right?
A:  No.
Q:  Okay. In fact, you wanted to project the picture that you were quite happy to be with him and everything was fine, right?
A: Not that I was happy, but that I was comfortable.
Q:  Comfortable, all right. And relaxed?
A: Yes.
Q:  And you did your best to do that, right?
A:  Yes.
Later in cross-examination, counsel for the accused again asked the complainant about the image she sought to convey to the complainant by her behaviour:
Q: And you wanted to make sure that he didn’t sense any fear on your part, right?
A: Yes.

II. Judicial History

A.  Court of Queen’s Bench

The trial judge made a number of findings of fact in his oral judgment.  He found that the complainant was a credible witness. He found as facts:  that in her mind she had not consented to any of the sexual touching which took place; that she had been fearful throughout the encounter; that she didn’t want the accused to know she was afraid; and that she had actively projected a relaxed and unafraid visage. He concluded that the failure of the complainant to communicate her fear, including her active efforts to the contrary, rendered her subjective feelings irrelevant.

The trial judge then considered the question of whether the accused had raised the defence of honest but mistaken belief in consent, and concluded that he had not. The trial judge characterized the defence position as being a failure by the Crown to discharge its onus of proving “beyond a reasonable doubt that there was an absence of consent”. That is, he took the defence to be asserting that the Crown had failed to prove one of the components of the actus reus of the offence.  This led the trial judge to characterize the defence as one of “implied consent”. In so doing he concluded that the complainant’s conduct was such that it could be objectively construed as constituting consent to sexual touching of the type performed by the accused.

The trial judge treated consent as a question of the complainant’s behaviour in the encounter. As a result of that conclusion he found that the defence of honest but mistaken belief in consent had no application since the accused made no claims as to his mental state. On the totality of the evidence, provided solely by the Crown’s witnesses, the trial judge concluded that the Crown had not proven the absence of consent beyond a reasonable doubt and acquitted the accused.

B. Alberta Court of Appeal (1998), 57 Alta. L.R. (3d) 235

Each of the three justices of the Court of Appeal issued separate reasons. McClung and Foisy JJ.A. both dismissed the appeal on the basis that it was a fact-driven acquittal from which the Crown could not properly appeal.  In addition, McClung J.A. concluded that the Crown had failed to prove that the accused possessed the requisite criminal intent.  He found that the Crown had failed to prove beyond a reasonable doubt that the accused had intended to commit an assault upon the complainant.

Fraser C.J. dissented. She found that the trial judge erred in a number of ways.  Specifically, she found that:

- The trial judge erred in his interpretation of the term “consent” as that term is applied to the offence of sexual assault.
- There is no defence of  “implied consent”, independent of the provisions of ss. 273.1 and 273.2 of the Criminal Code.
- It was an error to employ an objective test to determine whether a complainant’s “consent” was induced by fear.
- The trial judge erred in the legal effect he ascribed:

to the complainant’s silence when subjected to sexual contact by the respondent;
to the complainant’s non-disclosure of her fear when subjected to sexual contact by the respondent;
to the complainant’s expressed lack of agreement to sexual contact;
to the fact that there was no basis for a defence of “implied consent” or “consent by conduct”;
to the fact that there was no consent to sexual activity.

- The defence of mistake of fact had no application to the issue of ‘consent’ in this case.
- The trial judge erred when he failed to consider whether the respondent had been wilfully blind or reckless as to whether the complainant consented.

Fraser C.J. held that the only defence available to the accused was that of honest but mistaken belief in consent, and concluded that this defence could not be sustained on the facts as found. Accordingly, she would have allowed the appeal and substituted a verdict of guilty.

III.   Analysis

A. Appealable Questions of Law


It properly falls to this Court to determine whether the  trial judge erred in his understanding of consent in sexual assault, and to determine whether his conclusion that the defence of “implied consent” exists in Canadian law was correct.

B. The Components of Sexual Assault

A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.

(1)  Actus Reus

The crime of sexual assault is only indirectly defined in the Criminal Code, R.S.C., 1985, c. C-46. The offence is comprised of an assault within any one of the definitions in s. 265(1) of the Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated:  see R. v. S. (P.L.), [1991] 1 S.C.R. 909. Section 265 provides that:

265. (1)  A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

The actus reus of sexual assault is established by the proof of three elements:  (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour:  see R. v. Litchfield, [1993] 4 S.C.R. 333, and R. v. Chase, [1987] 2 S.C.R. 293.

The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred:  see R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff’d [1997] 1 S.C.R. 304, R. v. Park, [1995] 2 S.C.R. 836, at p. 850, per L’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513.

Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of this confusion has been caused by the word “consent” itself. A number of commentators have observed that the notion of consent connotes active behaviour:  see, for example, N. Brett, “Sexual Offenses and Consent” (1998), 11 Can. J. Law & Jur. 69, at p. 73. While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective.

The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”:  see Blackstone’s Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.

While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry.

(a)  ”Implied Consent”

Counsel for the respondent submitted that the trier of fact may believe the complainant when she says she did not consent, but still acquit the accused on the basis that her conduct raised a reasonable doubt. Both he and the trial judge refer to this as “implied consent”. It follows from the foregoing, however, that the trier of fact may only come to one of two conclusions:  the complainant either consented or not. There is no third option. If the trier of fact accepts the complainant’s testimony that she did not consent, no matter how strongly her conduct may contradict that claim, the absence of consent is established and the third component of the actus reus of sexual assault is proven. The doctrine of implied consent has been recognized in our common law jurisprudence in a variety of contexts but sexual assault is not one of them. There is no defence of implied consent to sexual assault in Canadian law.

(b)  Application to the Present Case

In this case, the  trial judge accepted the evidence of the complainant that she did not consent. That being so, he then misdirected himself when he considered the actions of the complainant, and not her subjective mental state, in determining the question of consent. As a result, he disregarded his previous finding that all the accused’s sexual touching was unwanted. Instead he treated what he perceived as her ambiguous conduct as a failure by the Crown to prove the absence of consent.

As previously mentioned, the trial judge accepted the complainant’s testimony that she did not want the accused to touch her, but then treated her conduct as raising a reasonable doubt about consent, described by him as “implied consent”. This conclusion was an error. See D. Stuart, Annotation on R. v. Ewanchuk (1998), 13 C.R. (5th) 330, where the author points out that consent is a matter of the state of mind of the complainant while belief in consent is, subject to s. 273.2 of the Code, a matter of the state of mind of the accused and may raise the defence of honest but mistaken belief in consent.

The finding that the complainant did not want or consent to the sexual touching cannot co-exist with a finding that reasonable doubt exists on the question of consent. The trial judge’s acceptance of the complainant’s testimony regarding her own state of mind was the end of the matter on this point.

This error was compounded somewhat by the trial judge’s holding that the complainant’s subjective and self-contained fear would not have changed his mind as to whether she consented. Although he needn’t have considered this question, having already found that she did not in fact consent, any residual doubt raised by her ambiguous conduct was accounted for by what he accepted as an honest and pervasive fear held by the complainant.

(c)  Effect of the Complainant’s Fear

To be legally effective, consent must be freely given. Therefore, even if the complainant consented, or her conduct raises a reasonable doubt about her non-consent, circumstances may arise which call into question what factors prompted her apparent consent. The Code defines a series of conditions under which the law will deem an absence of consent in cases of assault, notwithstanding the complainant’s ostensible consent or participation. As enumerated in s. 265(3), these include submission by reason of force, fear, threats, fraud or the exercise of authority, and codify the longstanding common law rule that consent given under fear or duress is ineffective:  see G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 551-61.   This section reads as follows:

265. . . .

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.

The words of Fish J.A. in Saint-Laurent v. Hétu, [1994] R.J.Q. 69 (C.A.), at p. 82, aptly describe the concern which the trier of fact must bear in mind when evaluating the actions of a complainant who claims to have been under fear, fraud or duress:

“Consent” is . . . stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will.

In these instances the law is interested in a complainant’s reasons for choosing to participate in, or ostensibly consent to, the touching in question. In practice, this translates into an examination of the choice the complainant believed she faced. The courts’ concern is whether she freely made up her mind about the conduct in question. The relevant section of the Code is s. 265(3)(b), which states that there is no consent as a matter of law where the complainant believed that she was choosing between permitting herself to be touched sexually or risking being subject to the application of force.

The question is not whether the complainant would have preferred not to engage in the sexual activity, but whether she believed herself to have only two choices:  to comply or to be harmed. If  a complainant agrees to sexual activity solely because she honestly believes that she will otherwise suffer physical violence, the law deems an absence of consent, and the third component of the actus reus of sexual assault is established. The trier of fact has to find that the complainant did not want to be touched sexually and made her decision to permit or participate in sexual activity as a result of an honestly held fear. The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated. While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant’s claim that she consented out of fear, the approach is subjective.

Section 265(3) identifies an additional set of circumstances in which the accused’s conduct will be culpable. The trial judge only has to consult s. 265(3) in those cases where the complainant has actually chosen to participate in sexual activity, or her ambiguous conduct or submission has given rise to doubt as to the absence of consent. If, as in this case, the complainant’s testimony establishes the absence of consent beyond a reasonable doubt, the actus reus analysis is complete, and the trial judge should have turned his attention to the accused’s perception of the encounter and the question of whether the accused possessed the requisite mens rea.

(2)  Mens Rea

Sexual assault is a crime of general intent. Therefore, the Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement. See R. v. Daviault, [1994] 3 S.C.R. 63.

However, since sexual assault only becomes a crime in the absence of the complainant’s consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant. To do otherwise would result in the injustice of convicting individuals who are morally innocent:  see R. v. Creighton, [1993] 3 S.C.R. 3. As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. See Park, supra, at para. 39.

The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent. The nature of this defence was described in Pappajohn v. The Queen, [1980] 2 S.C.R. 120, at p. 148, by Dickson J. (as he then was) (dissenting in the result):

Mistake is a defence...where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. The Crown is rarely possessed of knowledge of the subjective factors which may have caused an accused to entertain a belief in a fallacious set of facts.

The defence of mistake is simply a denial of mens rea. It does not impose any burden of proof upon the accused (see R. v. Robertson, [1987] 1 S.C.R. 918, at p. 936) and it is not necessary for the accused to testify in order to raise the issue. Support for the defence may stem from any of the evidence before the court, including, the Crown’s case-in-chief and the testimony of the complainant. However, as a practical matter, this defence will usually arise in the evidence called by the accused.

(a) Meaning of “Consent” in the Context of an Honest but Mistaken Belief in Consent

As with the actus reus of the offence, consent is an integral component of the mens rea, only this time it is considered from the perspective of the accused. Speaking of the mens rea of sexual assault in Park, supra, at para. 39, L’Heureux-Dubé J. (in her concurring reasons) stated that:

. . . the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying “no”, but is also satisfied when it is shown that the accused knew that the complainant was essentially not saying “yes”.

In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind wanted him to touch her but did not express that desire, is not a defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence.

For the purposes of the mens rea analysis, the question is whether the accused believed that he had obtained consent. What matters is whether the accused believed that the complainant effectively said “yes” through her words and/or actions. The statutory definition added to the Code by Parliament in 1992 is consistent with the common law:

273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Thereis a difference in the concept of “consent” as it relates to the state of mind of the complainant vis-à-vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea. For the purposes of the actus reus, “consent” means that the complainant in her mind wanted the sexual touching to take place.

In the context of  mens rea - specifically for the purposes of the honest but mistaken belief in consent - “consent” means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. This distinction should always be borne in mind and the two parts of the analysis kept separate.

(b)  Limits on Honest but Mistaken Belief in Consent

Not all beliefs upon which an accused might rely will exculpate him. Consent in relation to the mens rea of the accused is limited by both the common law and the provisions of ss. 273.1(2) and 273.2 of the Code, which provide that:

273.1 … (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

For instance, a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence:  see R. v. M. (M.L.), [1994] 2 S.C.R. 3. Similarly, an accused cannot rely upon his purported belief that the complainant’s expressed lack of agreement to sexual touching in fact constituted an invitation to more persistent or aggressive contact. An accused cannot say that he thought “no meant yes”. As Fraser C.J. stated at p. 272 of her dissenting reasons below:

One “No” will do to put the other person on notice that there is then a problem with “consent”. Once a woman says “No” during the course of sexual activity, the person intent on continued sexual activity with her must then obtain a clear and unequivocal “Yes” before he again touches her in a sexual manner. [Emphasis in original.]

I take the reasons of Fraser C.J. to mean that an unequivocal “yes” may be given by either the spoken word or by conduct.

Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant’s silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to “test the waters”. Continuing sexual contact after someone has said “No” is, at a minimum, reckless conduct which is not excusable. In R. v. Esau, [1997] 2 S.C.R. 777, at para. 79, the Court stated:

An accused who, due to wilful blindness or recklessness, believes that a complainant . . . in fact consented to the sexual activity at issue is precluded from relying on a defence of honest but mistaken belief in consent, a fact that Parliament has codified:  Criminal Code, s. 273.2(a)(ii).     

(c)  Application to the Facts

In this appeal the accused does not submit that the complainant’s clearly articulated “No’s” were ambiguous or carried some other meaning. In fact, the accused places great reliance on his having stopped immediately each time the complainant said “no” in order to show that he had no intention to force himself upon her. He therefore knew that the complainant was not consenting on four separate occasions during their encounter.

The question which the trial judge ought to have considered was whether anything occurred between the communication of non-consent and the subsequent sexual touching which the accused could honestly have believed constituted consent.

The trial judge explicitly chose not to consider whether the accused had the defence of honest but mistaken belief in consent, and concluded that the defence was probably not available unless the accused testified. This conclusion ignores the right of the accused to have this defence considered solely on the Crown’s case. The trial judge paid only passing interest to this defence undoubtedly because he had concluded that the defence of implied consent exonerated the accused. The accused is entitled to have all available defences founded on a proper basis considered by the court, whether he raises them or not:  see R. v. Bulmer, [1987] 1 S.C.R. 782, at p. 789.

In Esau, supra, at para. 15, the Court stated that, “before a court should consider honest but mistaken belief or instruct a jury on it there must be some plausible evidence in support so as to give an air of reality to the defence”. See also R. v. Osolin, [1993] 4 S.C.R. 595. All that is required is for the accused to adduce some evidence, or refer to evidence already adduced, upon which a properly instructed trier of fact could form a reasonable doubt as to his mens rea:  see Osolin, supra, at pp. 653-54, and p. 687.

The analysis in this appeal makes no attempt to weigh the evidence. At this point we are concerned only with the facial plausibility of the defence of honest but mistaken belief and should avoid the risk of turning the air of reality test into a substantive evaluation of the merits of the defence.

As the accused did not testify, the only evidence before the Court was that of the complainant. She stated that she immediately said “NO” every time the accused touched her sexually, and that she did nothing to encourage him. Her evidence was accepted by the trial judge as credible and sincere. Indeed, the accused relies on the fact that he momentarily stopped his advances each time the complainant said “NO” as evidence of his good intentions. This demonstrates that he understood the complainant’s “NO’s” to mean precisely that. Therefore, there is nothing on the record to support the accused’s claim that he continued to believe her to be consenting, or that he re-established consent before resuming physical contact. The accused did not raise nor does the evidence disclose an air of reality to the defence of honest but mistaken belief in consent to this sexual touching.

The trial record conclusively establishes that the accused’s persistent and increasingly serious advances constituted a sexual assault for which he had no defence. But for his errors of law, the trial judge would necessarily have found the accused guilty. In this case, a new trial would not be in the interests of justice. Therefore, it is proper for this Court to exercise its discretion under s. 686(4) of the Code and enter a conviction:  see R. v. Cassidy, [1989] 2 S.C.R. 345, at pp. 354-55.

In her reasons, Justice L’Heureux-Dubé makes reference to s. 273.2(b) of the Code. Whether the accused took reasonable steps is a question of fact to be determined by the trier of fact only after the air of reality test has been met. In view of the way the trial and appeal were argued, s. 273.2(b) did not have to be considered.

IV.  Summary

In sexual assault cases which centre on differing interpretations of essentially similar events, trial judges should first consider whether the complainant, in her mind, wanted the sexual touching in question to occur. Once the complainant has asserted that she did not consent, the question is then one of credibility. In making this assessment the trier of fact must take into account the totality of the evidence, including any ambiguous or contradictory conduct by the complainant. If the trier of fact is satisfied beyond a reasonable doubt that the complainant did not in fact consent, the actus reus of sexual assault is established and the inquiry must shift to the accused’s state of mind.

If there is reasonable doubt as to consent, or if it is established that the complainant actively participated in the sexual activity, the trier of fact must still consider whether the complainant consented because of fear, fraud or the exercise of authority as enumerated in s. 265(3). The complainant’s state of mind in respect of these factors need not be reasonable. If her decision to consent was motivated by any of these factors so as to vitiate her freedom of choice the law deems an absence of consent and the actus reus of sexual assault is again established.

Turning to the question of mens rea,  it is artificial to require as a further step that the accused separately assert an honest but mistaken belief in consent once he  acknowledges that the encounter between him and the complainant unfolded more or less as she describes it, but disputes that any crime took place:  see Park, supra, at p. 851, per L’Heureux-Dubé J. In those cases, the accused can only make one claim:  that on the basis of the complainant’s words and conduct he believed her to be consenting. This claim both contests the complainant’s assertions that in her mind she did not consent, and posits that, even if he were mistaken in his assessment of her wishes, he was nonetheless operating under a morally innocent state of mind. It is for the trier of fact to determine whether the evidence raises a reasonable doubt over either her state of mind or his.

In cases such as this, the accused’s putting consent into issue is synonymous with an assertion of an honest belief in consent. If his belief is found to be mistaken, then honesty of that belief must be considered. As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence. If so, then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent. Any other belief, however honestly held, is not a defence.

Moreover, to be honest the accused’s belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2. If at any point the complainant has expressed a lack of agreement to engage in sexual activity, then it is incumbent upon the accused to point to some evidence from which he could honestly believe consent to have been re-established before he resumed his advances. If this evidence raises a reasonable doubt as to the accused’s mens rea, the charge is not proven.

Cases involving a true misunderstanding between parties to a sexual encounter infrequently arise but are of profound importance to the community’s sense of safety and justice. The law must afford women and men alike the peace of mind of knowing that their bodily integrity and autonomy in deciding when and whether to participate in sexual activity will be respected. At the same time, it must protect those who have not been proven guilty from the social stigma attached to sexual offenders.

 

R. v. Crangle
 [2010] O.J. No. 2587
Ontario Court of Appeal

The judgment of the Court was delivered by
S.T. GOUDGE J.A.:—

1     The appellant was charged with sexually assaulting S.L. on September 16, 2006, contrary to s. 271 of the Criminal Code. On June 27, 2008, he was convicted by Thomas J., sitting alone.
2     The appellant has an identical twin brother, Craig Crangle, with whom the complainant had a consensual sexual relationship. On September 16, 2006, the complainant was asleep alone in the bed in Craig Crangle's bedroom in his apartment. The appellant entered the bed. The two had sexual intercourse, which ended when the complainant discovered that the man was not Craig Crangle, but his brother Glen Crangle, the appellant.
3     The appellant appeals this conviction. He argues that the trial judge erred in finding that (i) the complainant's mistake about the identity of her sexual partner meant she did not consent to the sexual activity; and (ii) the appellant did not have an honest but mistaken belief in her consent. The appellant also challenges the sufficiency of the trial judge's reasons….
5     [T]he complainant became good friends [with Craig Crangle] and eventually the relationship became intimate. …
6     On Saturday, September 16, Craig Crangle had a party at his apartment. Both his twin brother, the appellant, and the complainant were there. Everyone was drinking alcohol and by midnight, the complainant indicated that she had consumed most of a bottle of wine and was intoxicated. Rather than leave with the others to go to a bar, she went to bed in Craig Crangle's bedroom and fell asleep.
7     Some three hours later, the appellant returned to the apartment with the others where they continued to party. The appellant soon became tired. Craig told him to go sleep in his bedroom in order to escape the noise of the party. When the appellant entered the darkened room, he saw that the complainant was already asleep in the bed. He nonetheless got in because, although he had no significant relationship with her, he thought no harm would come from it since they were both adults and were friends.
8     The complainant's evidence was that she was awakened by a person she presumed to be Craig Crangle, proceeding to have sex with her. …
9     The appellant's evidence was that shortly after he entered the bed, the complainant initiated heavy petting which led in due course to sexual intercourse. …
13     The offence of assault is created by s. 265(1) of the Criminal Code. It reads as follows:

265.(1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

14     Section 265(2) makes the section applicable to all forms of assault, including sexual assault. While nothing in s. 265 provides a definition of consent, s. 265(3), which is applicable to all forms of assault, sets out circumstances in which the defence of consent is not available:

For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.

15     Section 273.1 speaks specifically to sexual assault. Section 273.1(1) sets out a definition of "consent" in the context of this form of assault, and s. 273.1(2) provides a non-exclusive list of circumstances in which the defence of consent to sexual assault cannot be raised:

273.1(1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

16     To establish the actus reus of sexual assault, the Crown must prove three elements: (i) touching; (ii) the sexual nature of the contact; and (iii) the absence of consent. See R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 25. The first two elements are not in issue in this case. However, the appellant argues that the complainant's mistake as to the identity of her sexual partner was insufficient to vitiate her consent to the sexual activity. …
17     … The analysis of the presence or absence of consent in this case must begin with the definition provided by s. 273.1(1) of the Code, which defines "consent" to mean the voluntary agreement of the complainant to engage in the sexual activity in question. It is the absence of consent defined in this way that the Crown was obliged to prove. In other words, the Crown had to establish that the complainant did not voluntarily agree to the sexual activity that took place that night. In Ewanchuk, the Supreme Court of Canada made clear that the absence of consent must be assessed only on the basis of the complainant's subjective state of mind towards the sexual activity in question and that assessment must be as of the time the activity occurred.

The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff'd [1997] 1 S.C.R. 304, R. v. Park, [1995] 2 S.C.R. 836, at p. 850, per L'Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513.

Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of this confusion has been caused by the word "consent" itself. A number of commentators have observed that the notion of consent connotes active behaviour: see, for example, N. Brett, "Sexual Offenses and Consent" (1998), 11 Can. J. Law & Jur. 69, at p. 73. While this may be true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant's perspective. The approach is purely subjective.

The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society's determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual's right to physical integrity is a fundamental principle, "every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner": see Blackstone's Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.

18     That is what the trial judge did here. The evidence was clear that the complainant had an ongoing consensual sexual relationship with Craig Crangle, but had nothing approaching the same with the appellant. It was also clear that the sexual activity in question was the appellant's sexual intercourse with her that night.
19     Based on the evidence, the trial judge concluded that while in the beginning the complainant may have been agreeable to the activity because she thought it was with Craig Crangle, at no time did she consent to sexual intercourse with the appellant. Thus, at no time did she voluntarily agree to the sexual activity in question.
20     Not only are these findings well grounded in the evidence, in my view, they are entirely reasonable. In the beginning, the complainant mistakenly thought the sexual activity was with someone with whom she had an ongoing consensual sexual relationship. Such a relationship is a deeply personal one in which the identity of the sexual partner is fundamental. It is hardly surprising that, from the complainant's perspective that night, the identity of her sexual partner was an inseparable component of any consent to sexual activity. Subjectively, she did not voluntarily agree to sexual intercourse with anyone other than Craig Crangle. That included the appellant.
21     The appellant argues that the offence of sexual assault could only have been made out if it was found that he had committed fraud so as to vitiate the complainant's consent pursuant to s. 265(3)(c) of the Code.
22     It is certainly true that this subsection provides that fraud can vitiate consent for sexual assault, as for all other forms of assault. Moreover, in R. v. Cuerrier, [1998] 2 S.C.R. 371, the Supreme Court of Canada decided that one form of fraud that can be found to vitiate consent is fraud pertaining to the identity of the partner. ….
23     [T]here is nothing in the language of s. 265(1)(c) or the jurisprudence to suggest that only a mistake as to the identity of the sexual partner that is induced by fraud vitiates consent. Moreover, the appellant suggests no policy reason why an identity mistake caused by something else will not do. Indeed s. 273.1 suggests the opposite. It does not confine consent to voluntary agreement except where that is negated by an identity mistake due to fraud. Where the subjective state of mind of the complainant is that her consent hinged on the identity of her sexual partner, her mistake about that identity renders his conduct non-consensual, whether or not the mistake is induced by fraud. The presence or absence of fraud may however be significant to whether the Crown can prove that the accused did not have an honest belief that the complainant was consenting.
24     Where, as here, the complainant's consent to sexual activity depended on it being with a particular person, her mistake about the identity of that person whether induced by fraud or not, necessarily means that subjectively she did not voluntarily agree to the sexual activity that occurred with someone else. That is precisely what the trial judge found happened in this case.
25     In summary, I would dismiss the appellant's argument and conclude that the trial judge did not err in finding that the Crown successfully proved the absence of consent.
26     The appellant's second argument is that even if the absence of consent was established, the trial judge erred in his analysis of the defence of mistaken belief. The appellant argues that the trial judge held the appellant to a standard higher than taking reasonable steps to ascertain consent and made no finding that the appellant's mistaken belief was due to his recklessness or wilful blindness.
27     Section 273.2 describes the circumstances in which an accused cannot rely on his belief that the complainant consented to the activity as a defence to a charge of sexual assault.

WHERE BELIEF IN CONSENT NOT A DEFENCE.

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused's belief arose from the accused's
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.


29     The jurisprudence makes clear that what is required of an accused in the way of reasonable steps depends on the particular circumstances of the case, and can be more or less, depending on those circumstances, even to the point of requiring an unequivocal indication of consent from the complainant at the time of the sexual activity. As the British Columbia Court of Appeal explained in R. v. R.G. (1994), 38 C.R. (4th) 123 at para. 29:

However, that does not conclude the matter, for s. 273.2(b) clearly creates a proportionate relationship between what will be required in the way of reasonable steps by an accused to ascertain that the complainant was consenting and "the circumstances known to him" at the time. Those circumstances will be as many and as varied as the cases in which the issue can arise, and it seems to me that the section clearly contemplates that there may be cases in which they are such that nothing short of an unequivocal indication of consent from the complainant, at the time of the alleged offence, will suffice to meet the threshold test which it establishes as a prerequisite to a defence of honest but mistaken belief. On reading his reasons for judgment as a whole, I am not persuaded that the trial judge intended to say anything more than that this was one such case.

30     The trial judge concluded that, in the circumstances of this case, reasonable steps required the appellant to make his identity perfectly clear to the complainant. That conclusion was amply justified on these facts. The appellant knew the complainant had an ongoing consensual sexual relationship with his twin brother, but nothing remotely like that with him. He knew she had gone asleep intoxicated in his brother's bed, as she had done many times before. The bedroom was pitch dark. Nothing about her conduct that night caused him to think that she would ever consent to sexual intercourse with him. The trial judge's conclusion that reasonable steps required the appellant to do more than he did and make his identity perfectly clear to the complainant is fully supported by this evidence. …
35     For these reasons, the appeal from conviction must be dismissed.




R. v. J.A.

Supreme Court of Canada

2011 SCC 28; [2011] 2 S.C.R. 440

 

The Chief Justice (Deschamps, Abella, Charron, Rothstein, and Cromwell JJ. concurring):— It is a fundamental principle of Canadian law that a person is entitled to refuse sexual contact. From this, it follows that sexual acts performed without consent and without an honest belief in consent constitute the crime of sexual assault. The issue raised by this appeal is whether a person can perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious.

...I conclude that the Criminal Code makes it clear that an individual must be conscious throughout the sexual activity in order to provide the requisite consent. Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point. I would therefore allow the appeal and restore the conviction of the respondent.

 

I. Facts

On May 22, 2007, the respondent J.A. and his long-time partner K.D. spent an evening together at home. While watching a movie on the couch, they started to kiss and engage in foreplay. After some time, they went upstairs to their bedroom and became more intimate...

While K.D. was lying on her back, J.A. placed his hands around her throat and choked her until she was unconscious. At trial, K.D. estimated that she was unconscious for “less than three minutes”. She testified that she consented to J.A. choking her, and understood that she might lose consciousness. She stated that she and J.A. had experimented with erotic asphyxiation, and that she had lost consciousness before.

When K.D. regained consciousness, she was on her knees at the edge of the bed with her hands tied behind her back, and J.A. was inserting a dildo into her anus...

K.D. made a complaint to the police on July 11...[S]he told the police that she had not consented to the sexual activity that had occurred. She later recanted her allegation, and claimed that she made a false complaint to the police because J.A. had threatened to seek sole custody of their two- year-old son. J.A. was charged with aggravated assault, sexual assault, attempting to render the complainant unconscious in order to sexually assault her, and with breaching his probation order.

 

III. Analysis

The only question before this Court is whether consent for the purposes of sexual assault requires the complainant to be conscious throughout the sexual activity. ...[W]hether the complainant consented in fact or suffered bodily harm are not at issue; nor is the Court of Appeal’s holding that, for reasons of procedural fairness, the Crown in this case cannot rely on bodily harm to vitiate consent since it did not formally allege that bodily harm occurred...

 

B. Framework of Sexual Assault

A conviction for sexual assault under s. 271(1) of the Criminal Code requires proof beyond a reasonable doubt of the actus reus and the mens rea of the offence. A person commits the actus reus if he touches another person in a sexual way without her consent. Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question: R. v. Ewanchuk, [1999] 1 S.C.R. 330. As discussed below, the Criminal Code, s. 273.1(2), limits this definition by stipulating circumstances where consent is not obtained.

A person has the required mental state, or mens rea of the offence, when he or she knew that the complainant was not consenting to the sexual act in question, or was reckless or wilfully blind to the absence of consent. The accused may raise the defence of honest but mistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity. However, as discussed below, ss. 273.1(2) and 273.2 limit the cases in which the accused may rely on this defence...

The issue in this case is whether the complainant consented, which is relevant to the actus reus; the Crown must prove the absence of consent to fulfill the requirements of the wrongful act. However, the provisions of the Criminal Code with respect to the mens rea defence of honest but mistaken belief also shed light on the issue of whether consent requires the complainant to have been conscious throughout the duration of the sexual activity.

The relevant provisions of the Criminal Code are ss. 265, 273.1 and 273.2. [These sections are then reproduced.]

Parliament defined consent in a way that requires the complainant to be conscious throughout the sexual activity in question. The issue is not whether the Court should identify a new exception that vitiates consent to sexual activity while unconscious..., but whether an unconscious person can qualify as consenting under Parliament’s definition.

Consent for the purposes of sexual assault is defined in s. 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question”. This suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind....[T]his Court has also interpreted this provision as requiring the complainant to consent to the activity “at the time it occur[s]” (Ewanchuk, at para. 26)...

Section 273.1(2)(b) provides that no consent is obtained if “the complainant is incapable of consenting to the activity”. Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent. This might be because of mental impairment. It also might arise from unconsciousness: see R. v. Esau, [1997] 2 S.C.R. 777; R. v. Humphrey (2001), 143 O.A.C. 151, at para. 56. It follows that Parliament intended consent to mean the conscious consent of an operating mind.

The provisions of the Criminal Code that relate to the mens rea of sexual assault confirm that individuals must be conscious throughout the sexual activity...

Section 273.1(2)(d) provides that there can be no consent if the “complainant expresses, by words or conduct, a lack of agreement to engage in the activity”. Since this provision refers to the expression of consent, it is clear that it can only apply to the accused’s mens rea. The point here is the linking of lack of consent to any “activity”. This suggests a present, ongoing conception of consent, rather than advance consent to a suite of activities.

Section 273.1(2)(e) establishes that it is an error of law for the accused to believe that the complainant is still consenting after she “expresses . . . a lack of agreement to continue to engage in the activity”. Since this provision refers to the expression of consent, it is clear that it can only apply to the accused’s mens rea. Nonetheless, it indicates that Parliament wanted people to be capable of revoking their consent at any time during the sexual activity. This in turn supports the view that Parliament viewed consent as the product of a conscious mind, since a person who has been rendered unconscious cannot revoke her consent. As a result, the protection afforded by s. 273.1(2)(e) would not be available to her.

According to my colleague, Fish J., s. 273.1(2)(e) “suggests that the complainant’s consent can be given in advance, and remains operative unless and until it is subsequently revoked” (para. 104 (emphasis in original)). With respect, I cannot accept this interpretation. The provision in question establishes that the accused must halt all sexual contact once the complainant expresses that she no longer consents. This does not mean that a failure to tell the accused to stop means that the complainant must have been consenting. As this Court has repeatedly held, the complainant is not required to express her lack of consent for the actus reus to be established. Rather, the question is whether the complainant subjectively consented in her mind: Ewanchuk; R. v. M. (M.L.), [1994] 2 S.C.R. 3.

The question in this case is whether Parliament defined consent in a way that extends to advance consent to sexual acts committed while the complainant is unconscious. In my view, it did not. J.A.’s contention that advance consent can be given to sexual acts taking place during unconsciousness is not in harmony with the provisions of the Code and their underlying policies. These provisions indicate that Parliament viewed consent as requiring a “capable” or operating mind, able to evaluate each and every sexual act committed. To hold otherwise runs counter to Parliament’s clear intent that a person has the right to consent to particular acts and to revoke her consent at any time...

 

D. The Concept of Consent in the Jurisprudence

The jurisprudence has consistently interpreted consent as requiring a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act. While the issue of whether advance consent can suffice to justify future sexual acts has not come before this Court prior to this case, the tenor of the jurisprudence undermines this concept of consent.

As held by Major J. in Ewanchuk, “[t]he absence of consent . . . is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred” (para. 26 (emphasis added)). The trier of fact must determine what was going on in the mind of the complainant in response to the touching. The majority repeatedly underlined that the focus is on the complainant’s “state of mind”: paras. 26, 27, 29, 30, 33, 34 and 48; see also R. v. Park, [1995] 2 S.C.R. 836, at para. 16, referring to the consent of the complainant as a “mental state” (per L’Heureux-Dubé J.). Moreover, as noted above, the complainant is not required to express her lack of consent: M. (M.L.). Rather, the absence of consent is established if the complainant was not experiencing the state of mind of consent while the sexual activity was occurring.

The only relevant period of time for the complainant’s consent is while the touching is occurring: Ewanchuk, at para. 26. The complainant’s views towards the touching before or after are not directly relevant. An offence has not occurred if the complainant consents at the time but later changes her mind (absent grounds for vitiating consent). Conversely, the actus reus has been committed if the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact.

The jurisprudence of this Court also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. It is not open to the defendant to argue that the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant... (Ewanchuk, at para. 31).

It thus is not sufficient for the accused to have believed the complainant was consenting: he must also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question. This is impossible if the complainant is unconscious.

 

The Arguments to the Contrary

The first argument is that advance consent equals actual consent because the complainant cannot change her mind after being rendered unconscious...

This argument runs contrary, however, to this Court’s conclusion in Ewanchuk that the only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring (para. 26). When the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs. Finding that such a person is consenting would effectively negate the right of the complainant to change her mind at any point in the sexual encounter.

The second argument is that the law should carve out an exception to the general requirement of conscious, ongoing consent to sexual contact, because this is required to deal with the special concerns unconsciousness raises.

J.A. submits that this is what the law has done in the medical field, where the common law recognizes that doctors may perform surgery on unconscious patients...A number of considerations make consent to sexual activity different from consent in other contexts such as medical interventions... Parliament has indicated that the notion of consent for sexual assault is distinct from consent in other contexts (Criminal Code, ss. 273.1 and 273.2). It has also enacted special protections for medical practitioners...(s. 45). Consequently, the fact that individuals may consent in advance to surgery does not determine if they may consent in advance to sexual activity.

The Crown suggested that this Court could allow for mild sexual touching that occurs while a person is unconscious by relying on the de minimis doctrine [that] the “law does not care for small or trifling matters”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 200, per Arbour J., dissenting. Without suggesting that the de minimis principle has no place in the law of sexual assault, it should be noted that even mild non-consensual touching of a sexual nature can have profound implications for the complainant.

...Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to “the sexual activity in question” is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law’s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice...

 

IV. Summary

The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.

 

V. Disposition

I would allow the appeal, and restore the respondent’s conviction for sexual assault.

FISH J. (with Binnie and LeBel JJ., dissenting):—It is a fundamental principle of the law governing sexual assault in Canada that no means “no” and only yes means “yes”.

K.D., the complainant in this case, said yes, not no. She consented to her erotic asphyxiation by the respondent, J.A., her partner at the time...— in advance and while the conduct was still in progress. Immediately afterward, K.D. had intercourse with J.A., again consensually.

The provisions of the Criminal Code, R.S.C. 1985, c. C-46, regarding consent to sexual contact and the case law (including Ewanchuk) relied on by the Crown were intended to protect women against abuse by others. Their mission is not to “protect” women against themselves by limiting their freedom to determine autonomously when and with whom they will engage in the sexual relations of their choice...

The Crown’s position, if adopted by the Court, would achieve exactly the opposite result. It would deprive women of their freedom to engage by choice in sexual adventures that involve no proven harm to them or to others. That is what happened here.

Adopting the Crown’s position would also require us to find that cohabiting partners across Canada, including spouses, commit a sexual assault when either one of them, even with express prior consent, kisses or caresses the other while the latter is asleep. The absurdity of this consequence makes plain that it is the product of an unintended and unacceptable extension of the Criminal Code provisions [regarding sexual assault]...

Lest I be misunderstood to suggest otherwise, I agree that consent will be vitiated where the contemplated sexual activity involves a degree of bodily harm or risk of fatal injury that cannot be condoned under the common law, or on grounds of public policy...

According to the Chief Justice, the question is “whether an unconscious

person can qualify as consenting [to sexual activity]” (para. 33). With respect, that is not the question at all: No one has suggested in this case that an unconscious person can validly consent to sexual activity.

Rather, the question is whether a conscious person can freely and voluntarily consent in advance to agreed sexual activity that will occur while he or she is briefly and consensually rendered unconscious. My colleague would answer that question in the negative; I would answer that question in the affirmative, absent a clear prohibition in the Criminal Code, absent proven bodily harm that would vitiate consent at common law, and absent any evidence that the conscious partner subjected the unconscious partner to sexual activity beyond their agreement...

[W]omen have “the right to make decisions about their bod[ies], including whether or not to engage in sexual activity” and that “[n]o in every conceivable circumstance means no” (House of Commons Debates, vol. VIII, 3rd Sess., 34th Parl., April 8, 1992, at p. 9507, and vol. IX, June 15, 1992, at p. 12045). Legislative changes were required to ensure that a woman who previously said “yes” to sexual activity could subsequently say “no” and be taken seriously, first by her sexual partner and, failing that, by the police and the courts.

These policy concerns are simply not engaged on the facts before us: This is not a case about a woman who said no — at any time. Rather, the complainant described herself as a willing and enthusiastic participant throughout all stages of the sexual activity in question...

I am unable to conclude that Parliament, in protecting the right to say no, restricted the right of adults, female or male, consciously and willingly to say yes to sexual conduct in private that neither involves bodily harm nor exceeds the bounds of the consent freely given. The right to make decisions about one’s own body clearly comprises both rights.

Although this right to choose is not absolute, I agree that private, consensual sexual behaviour “should only give rise to criminal sanctions where there is a compelling principle of fundamental justice that constitutes a reasonable limit on the right to personal and sexual autonomy” (D. M. Tanovich, “Criminalizing Sex At The Margins” (2010), 74 C.R. (6th) 86, at p. 90). I agree as well that “it would be a significant limit on the sexual autonomy of each individual to say that, as a matter of law, no-one can consent in advance to being sexually touched while asleep or unconscious” (H. C. Stewart, Sexual Offences in Canadian Law (loose-leaf), at p. 3- 25).

Respect for the privacy and sexual autonomy of consenting adults has long been embraced by Parliament as a fundamental social value and an overarching statutory objective: “Keeping the state out of the bedrooms of the nation” is a legislative policy, and not just a political slogan.

For all of these reasons, I would affirm the judgment of the Court of Appeal and dismiss the present appeal to this Court.

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LRCC § 1(2)

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MPC § 2.11

F.         Necessity (Balance of Evils)

 

The Queen v. Dudley and Stephen
Queen’s Bench Division
14 Q.B.D. 273 (1884)

[see supra vol. 1]

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R. v. Perka
Supreme Court of Canada
[1984] 14 C.C.C. (3d) 385

DICKSON J. (Ritchie, Chouinard, and Lamer concurring):— In this case we consider (i) a recurring legal problem, the “necessity” defence; (ii) what is commonly known as the “botanical” or “cannabis species” defence.

I. Facts

The appellants are drug smugglers. At trial, they led evidence that in early 1979 three of the appellants were employed, with 16 crew members, to deliver, by ship (the “Samarkanda”) a load of cannabis (marijuana) worth $6,000,000 or $7,000,000 from a point in international waters off the coast of Colombia, South America to a drop-point in international waters 200 miles off the coast of Alaska. The ship left Tumaco, Colombia, empty with a port clearance document stating the destination to be Juneau, Alaska. For three weeks the ship remained in international waters off the coast of Colombia. While there, a DC-6 aircraft made four trips, dropping into the water shrimp-nets with a total of 634 bales of cannabis which were retrieved by the ship’s long-boats.

A “communications” package was also dropped from a light aircraft, giving instructions for a rendezvous with another vessel the “Julia B”, which was to pick up the cargo of cannabis from the “Samarkanda” in international waters off the coast of Alaska. En route, according to the defence evidence, the vessel began to encounter a series of problems; engine breakdowns, overheating generators and malfunctioning navigation devices, aggravated by deteriorating weather. In the meantime, the fourth appellant, Nelson, part-owner of the illicit cargo, and three other persons left Seattle in a small boat, the “Whitecap”, intending to rendezvous with the “Samarkanda” at the drop-point in Alaska. The problems of the “Samarkanda” intensified as fuel was consumed. The vessel became lighter, the intakes in the hull for sea-water, used as a coolant, lost suction and took in air instead causing the generators to overheat. At this point the vessel was 180 miles from the Canadian coastline. The weather worsened. There were eight-to-ten-foot swells and a rising wind. It was finally decided for the safety of ship and crew to seek refuge on the Canadian shoreline for the purpose of making temporary repairs. The “Whitecap” found a sheltered cove on the west coast of Vancouver Island, “No Name Bay”. The “Samarkanda” followed the “Whitecap” into the bay but later grounded amidships on a rock because the depth sounder was not working. The tide ran out. The vessel listed severely to starboard, to the extent that the captain, fearing the vessel was going to capsize, ordered the men to off-load the cargo. That is a brief summary of the defence evidence.

Early on the morning of May 22, 1979, police officers entered No Name Bay in a marked police boat with siren sounding. The “Samarkanda” and the “Whitecap” were arrested, as were all the appellants except Perka and Nelson, the same morning. The vessels and 33.49 tons of cannabis marijuana were seized by the police officers.

Charged with importing cannabis into Canada and with possession for the purpose of trafficking, the appellants claimed they did not plan to import into Canada or to leave their cargo of cannabis in Canada. They had planned to make repairs and leave. Expert witnesses on marine matters called by the defence testified that the decision to come ashore was, in the opinion of one witness, expedient and prudent and in the opinion of another essential. At trial, counsel for the Crown alleged that the evidence of the ship’s distress was a recent fabrication. Crown counsel relied on the circumstances under which the appellants were arrested to belie the “necessity” defence; when the police arrived on the scene most of the marijuana was already onshore, along with plastic ground sheets, battery-operated lights, liquor, food, clothing, camp stoves and sleeping-bags. Nevertheless, the jury believed the appellants and acquitted them.

The acquittal was reversed on appeal. After the close of the case for the accused at trial, the Crown had applied to call rebuttal evidence with respect to the condition of the vessel. The trial judge refused the Crown’s application. He held that the defence evidence relating to the happenings in the engine-room should not have caught the prosecution by surprise and in the circumstances, the conditions for calling rebuttal evidence had not been met. At trial the defence also relied upon a “botanical defence” arguing that the Crown had failed to prove that the ship’s cargo was “cannabis sativa L”, as provided for in the schedule to the Narcotic Control Act, R.S.C. 1970, c. N-1 {the relevant statute is now The Controlled Drugs and Substances Act}. Thus the appellants had committed no offence. The trial judge withdrew the botanical defence from the jury. On appeal by the Crown, the Court of Appeal, in allowing the appeal, held that the trial judge had erred in refusing to grant leave to the Crown to call rebuttal evidence and, on the cross-appeal, held that the judge was correct in withdrawing the botanical defence from the jury [see 69 C.C.C. (2d) 405, 38 B.C.L.R. 273].

The appellants have now appealed to this Court. In addition to claiming that the Court of Appeal erred in reversing the trial judge on the rebuttal issue, the appellants contend that the Court of Appeal applied the wrong standard in ordering a new trial. The appellants also contend that the botanical defence should have been left with the jury. The Crown, of course, takes the opposite position on each of these questions and has raised one of its own: whether the trial judge erred in charging the jury with respect to the necessity defence. Because the appellants raised a preliminary objection to this Court even addressing this last issue, I will deal with it first.

The appellants argue that this Court should not consider the Crown’s contentions with respect to the necessity defence because the Court of Appeal decided that the defence was available and the jury could properly be instructed on it. Accordingly, the appellants contend the Crown’s argument with respect to the defence of necessity is really in the nature of a cross-appeal. Since the Crown does not have an appeal as of right to this Court and since leave has not been granted, the appellants say this Court does not have jurisdiction to decide the issues raised by the “cross-appeal”.

In both civil and criminal matters it is open to a respondent to advance any argument to sustain the judgment below, and he is not limited to appellant’s points of law. A party cannot, however, raise an entirely new argument which has not been raised below and in relation to which it might have been necessary to adduce evidence at trial: see Brown v. Dean et al., [1910] A.C. 373; Dormuth et al. v. Untereiner et al. (1963), 43 D.L.R. (2d) 135 [1964] S.C.R. 122, 46 W.W.R. 20; SS. “Tordenskjold” v. Horn Joint Stock Co. of Shipowners (1908), 41 S.C.R. 154; Dairy Foods Inc. v. Co-operative Agricole de Granby (1975), 64 D.L.R. (3d) 577, 23 C.P.R. (2d) 1, [1976] 2 S.C.R. 651. That is not the case here. The necessity defence was raised and fully argued in both courts below. Therefore, if we regard the Crown’s submission as an argument to sustain the judgment below, this Court undoubtedly has jurisdiction to hear and decide the issue. Even if we regard the Crown’s submission with regard to necessity as seeking to vary the decision of the court below, Supreme Court Rule 29(1) would still give this Court the power to treat the whole case as open:

29.(1) If a respondent intends at the hearing of an appeal to argue that the decision of the court below should be varied, he shall, within thirty days after the service of the notice of appeal or within such time as a Judge allows, give notice of such intention to all parties who may be affected thereby. The omission to give such notice shall not in any way limit the power of the Court to treat the whole case as open but may, in the discretion of the Court, be a ground for an adjournment of the hearing. (Emphasis added.)

In the event, at the hearing of the appeal the court did treat the whole case as open and ruled that the court would address the merits of the Crown’s contentions with respect to the necessity defence. That I now propose to do.

II. The necessity defence

(a) History and background

From earliest times it has been maintained that in some situations the force of circumstances makes it unrealistic and unjust to attach criminal liability to actions which, on their face, violate the law. Aristotle, Ethics (Book III, 1110 a), discusses the jettisoning of cargo from a ship in distress and remarks that “any sensible man does so”  to secure the safety of himself and his crew. Pollard, Sergeant at Law, arguing for the defendant in the case of Reniger v. Fogossa (1551), 1 Plowden 1 at p. 18, 75 E. R. 1, maintained:

in every law there are some things which when they happen a man may break the words of the law, and yet not break the law itself; and such things are exempted out of the penalty of the law, and the law priviledges them although they are done against the letter of it, for breaking the words of the law is not breaking the law, so as the intent of the law is not broken. And therefore the words of the law of nature, of the law of this realm, and of other realms, and of the law of God also will yield and give way to some acts and things done against the words of the same laws,  and that is, where the words of them are broken to avoid greater inconveniences, or through necessity, or by compulsion . . .

In Leviathan (Pelican ed., 1968), p. 157, Hobbes writes:

If a man by the terrour of present death, be compelled to doe a fact against the law, he is totally excused; because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory: yet a man would reason thus, if I doe it not, I die presently: if I doe it I die afterwards: therefore by doing it there is time of life gamed: nature therefore compells him to the fact.

To much the same purpose Kant, in The Metaphysical Elements of Justice (translator Ladd, 1965), discussing the actions of a person who, to save his own life sacrifices that of another, says at p. 41:

A penal law applying to such a situation could never have the effect intended for the threat of an evil that is still uncertain (being condemned to death by a judge) cannot outweigh the fear of an evil that is certain (being drowned). Hence, we must judge that, although an act of self-preservation through violence is not inculpable, it still is unpunishable.

In those jurisdictions in which such a general principle has been recognized or codified it is most often referred to by the term “necessity”. Classic and harrowing instances which have been cited to illustrate the arguments both for and against the principle include the mother who steals food for her starving child, the shipwrecked mariners who resort to cannibalism (R. v. Dudley and Stephens (1884), 14 Q.B.D. 273), or throw passengers overboard to lighten a sinking lifeboat (United States v. Holmes (1842), 26 Fed. Cas. 360), and the more mundane case of the motorist who exceeds the speed-limit taking an injured person to the hospital.

In the United States a general defence of necessity has been recognized in the statutory law of a number of states and has found its way into the Model Penal Code of the American Law Institute. Attempts have been made, with mixed success, in American jurisdictions to apply the defence to multifarious types of conduct, including cases involving prison escapes, United States v. Bailey (1980), 444 U.S. 394; social protests and civil disobedience, United States v. Moylan (1969), 417 F. 2d 1002 (4th Cir.); certiorari denied 397 U.S. 910; United States v. Cullen (1971), 454 F. 2d 386 (7th Cir.), and unorthodox medical treatments, United States v. Randall, 104 Daily Wash. L. Rep. 2249; United States v. Richardson (1978), 588 F. 2d 1235.

In England, opinion as to the existence of a general defence of necessity has varied. Blackstone, in his Commentaries on the Laws of England (1941) (abridged edition of William Hardcastle Browne, edited by Bernard C. Gavit), mentioned two principles capable of being read as underlying such a defence. In Book IV, c.2, p. 761, he says: “As punishments are only inflicted for the abuse of that free will, which God has given to man, it is just that a man should be excused for those acts, which are done through unavoidable force and compulsion.” Then under the rubric “Choice Between Two Evils” he writes:

Choice Between Two Evils. This species of necessity is the result of reason and reflection and obliges a man to do an act, which, without such obligation, would be criminal. This occurs, when a man has his choice of two evils set before him, and chooses the less pernicious one. He rejects the greater evil and chooses the less. As where a man is bound to arrest another for a capital offence, and being resisted, kills the offender, rather than permit him to escape.
Stephen, A History of the Criminal Law of England (1883), vol. II, p. 108, refers to compulsion by necessity as one of the curiosities of the law, “a subject on which the law of England is so vague that, if cases raising the question should ever occur the judges would practically be able to lay down any rule which they considered expedient”. At pp. 109-10 he concedes it just possible to imagine cases in which the expedience of breaking the law would be so overwhelmingly great that people might be justified in doing so but says that “these cases cannot be defined beforehand, and must be adjudicated upon by a jury afterwards”.

Later English commentators have had even more doubts on the matter. Halsbury’s Laws of England, 4th ed., vol. 11, para. 26, has this to say on the subject:
Necessity. Although there are cases in which it is not criminal for a person to cause harm to the person or property of another, there is no general rule giving rise to a defence of necessity, and it seems that, outside the specific cases mentioned, it is no defence to a crime to show that its commission was necessary in order to avoid a greater evil to the defendant or to others.

While Glanville Williams (6 C.L.P. 216 (1953)) has been able to assert “with some assurance” that the defence of necessity is recognized by English law, the authors of Smith & Hogan, Criminal Law, 4th ed. (1978), at pp. 193-4, state that: “The better view appears to be that a general defence of necessity is not recognized by the English courts at the present time.”

A Working Party of the English Law Commission proposed to resolve this uncertainty by recognizing a general defence of necessity, but one that was carefully circumscribed to prevent its being invoked in extravagant and inappropriate cases. The English Law Commission, however, rejected the working party proposal and instead made two counter-proposals (Law Com. No. 83, Part IV) which recognized the possibility of the existence of a defence of necessity at common law but clearly disapproved of its principles. The commission proposed: “First, that no attempt should be made to establish the defence by legislation. Secondly, that the proposed Act should expressly abolish any such defence as may exist at common law.”

In Canada the existence and the extent of a general defence of necessity was discussed by this Court in Morgentaler v. The Queen (1975), 20 C.C.C. (2d) 449, 53 D.L.R. (3d) 161, [1976] 1 S.C.R. 616. As to whether or not the defence exists at all I had occasion to say, at p. 497 C.C.C., p. 209 D.L.R., p. 678 S.C.R.:

On the authorities it is manifestly difficult to be categorical and state that there is a law of necessity, paramount over other laws, relieving obedience from the letter of the law. If it does exist it can go no further than to justify non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible.

Subsequent to Morgentaler, the courts appear to have assumed that a defence of necessity does exist in Canada. On the later trial of Dr. Morgentaler, the defence of necessity was again raised on a charge of procuring a miscarriage. Some admissible evidence was made in support of the plea and the case went to the jury, which rendered a verdict of not guilty. An appeal by the Crown from the acquittal failed: R. v. Morgentaler (1976), 27 C.C.C. (2d) 81, 64 D.L.R. (3d) 718, 33 C.R.N.S. 244; leave to appeal to this Court was refused [1976] 1 S.C.R. x. The defence also succeeded in four other cases: R. v. Guenther (1978), 8 Alta. L.R. (2d) 125, 15 A.R. 102; R. v. Pootlass et al. and Tallio (1977), 1 C.R. (3d) 378, R. v. Fry (1977), 36 C.C.C. (2d) 396; R. v. Morris (1981), 61 C.C.C. (2d) 163, 23 C.R. (3d) 175, 31 A.R. 189.

In the present appeal the Crown does not challenge the appellants’ claim that necessity is a common law defence preserved by Criminal Code, s. 7(3). Rather, the Crown claims the trial judge erred in (1) instructing the jury on the defence in light of the facts, and (2) imposing the burden of disproof of the defence upon the Crown, rather than imposing the burden of proof on the appellants.

(b) The conceptual foundation of the defence

In Morgentaler, supra, I characterized necessity as an “ill-defined and elusive concept”. Despite the apparently growing consensus as to the existence of a defence of necessity that statement is equally true today.

This is no doubt in part because, though apparently laying down a single rule as to criminal liability, the “defence” of necessity in fact is capable of embracing two different and distinct notions. As Mr. Justice Macdonald observed succinctly but accurately in the Salvador case, supra, at p. 542: “Generally speaking, the defence of necessity covers all cases where non-compliance with law is excused by an emergency or justified by the pursuit of some greater good.”

Working Paper 29 of the Law Reform Commission of Canada Criminal Law, The General Part: Liability and Defences (1982), p. 93, makes this same point in somewhat more detail:

The rationale of necessity, however, is clear. Essentially it involves two factors. One is the avoidance of greater harm or the pursuit of some greater good, the other is the difficulty of compliance with law in emergencies. From these two factors emerge two different but related principles. The first is a utilitarian principle to the effect that, within certain limits, it is justifiable in an emergency to break the letter of the law if breaking the law will avoid a greater harm than obeying it. The second is a humanitarian principle to the effect that, again within limits, it is excusable in an emergency to break the law if compliance would impose an intolerable burden on the accused.

Despite any superficial similarities, these two principles are in fact quite distinct and many of the confusions and the difficulties in the cases (and, with respect, in academic discussions) arise from a failure to distinguish between them.

Criminal theory recognizes a distinction between “justifications” and “excuses”. A “justification” challenges the wrongfulness of an action which technically constitutes a crime. The police officer who shoots the hostage-taker, the innocent object of an assault who uses force to defend himself against his assailant, the good Samaritan who commandeers a car and breaks the speed laws to rush an accident victim to the hospital, these are all actors whose actions we consider rightful, not wrongful. For such actions people are often praised, as motivated by some great or noble object. The concept of punishment often seems incompatible with the social approval bestowed on the doer.

In contrast, an “excuse” concedes the wrongfulness of the action but asserts that the circumstances under which it was done are such that it ought not to be attributed to the actor. The perpetrator who is incapable, owing to a disease of the mind, of appreciating the nature and consequences of his acts, the person who labours under a mistake of fact, the drunkard, the sleepwalker: these are all actors of whose “criminal” actions we disapprove intensely, but whom, in appropriate circumstances, our law will not punish.

Packer, The Limits of the Criminal Sanction (1968), expresses the distinction thus at p. 113:

. . . conduct that we choose not to treat as criminal is “justifiable” if our reason for treating it as noncriminal is predominantly that it is conduct that we applaud, or at least do not actively seek to discourage: conduct is “excusable” If we deplore it but for some extrinsic reason conclude that it is not politic to punish it.

It will be seen that the two different approaches to the “defence” of necessity from Blackstone forward correspond, the one to a justification, the other to an excuse. As the examples cited above illustrate, the criminal law recognizes and our Criminal Code codifies a number of specific categories of justification and of excuse. The remainder, those instances that conform to the general principle but do not fall within any specific category such as self-defence on the one hand or insanity on the other, purportedly fall within the “residual defence” of necessity.

As a “justification” this residual defence can be related to Blackstone’s concept of a “choice of evils”. It would exculpate actors whose conduct could reasonably have been viewed as “necessary” in order to prevent a greater evil than that resulting from the violation of the law. As articulated, especially in some of the American cases, it involves a utilitarian balancing of the benefits of obeying the law as opposed to disobeying it, and when the balance is clearly in favour of disobeying, exculpates an actor who contravenes a criminal statute. This is the “greater good” formulation of the necessity defence: in some circumstances, it is alleged, the values of society, indeed of the criminal law itself, are better promoted by disobeying a given statute than by observing it.

With regard to this conceptualization of a residual defence of necessity, I retain the scepticism I expressed in Morgentaler, supra, at p. 497 C.C.C., p. 209 D.L.R., p. 678 S.C.R. It is still my opinion that, “[n]o system of positive law can recogmze any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value”. The Criminal Code has specified a number of identifiable situations in which an actor is justified in committing what would otherwise be a criminal offence. To go beyond that and hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law. It would invite the courts to second-guess the Legislature and to assess the relative merits of social policies underlying criminal prohibitions. Neither is a role which fits well with the judicial function. Such a doctrine could well become the last resort of scoundrels and, in the words of Edmund Davies L.J. in Southwark London Borough Council v. Williams et al., [1971] Ch. 734 [at p. 746], it could “very easily become simply a mask for anarchy”.

Conceptualized as an “excuse”, however, the residual defence of necessity is, in my view, much less open to criticism. It rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in The Nicomachean Ethics (translator Rees, p. 49), “overstrains human nature and which no one could withstand”.

George Fletcher, Rethinking Criminal Law, describes this view of necessity as “compulsion of circumstance” which description points to the conceptual link between necessity as an excuse and the familiar criminal law requirement that in order to engage criminal liability, the actions constituting the actus reus of an offence must be voluntary. Literally, this voluntariness requirement simply refers to the need that the prohibited physical acts must have been under the conscious control of the actor. Without such control, there is, for purposes of the criminal law, no act. The excuse of necessity does not go to voluntariness in this sense. The lost Alpinist who, on the point of freezing to death, breaks open an isolated mountain cabin is not literally behaving in an involuntary fashion. He has control over his actions to the extent of being physically capable of abstaining from the act. Realistically, however, his act is not a “voluntary” one. His “choice” to break the law is no true choice at all; it is remorselessly compelled by normal human instincts. This sort of involuntariness is often described as “moral or normative involuntariness”. Its place in criminal theory is described by Fletcher at pp. 804-5 as follows:

The notion of voluntariness adds a valuable dimension to the theory of excuses. That conduct is involuntary—even in the normative sense—explains why it cannot fairly be punished. Indeed, H. L. A. Hart builds his theory of excuses on the principle that the distribution of punishment should be reserved for those who voluntarily break the law. Of the arguments he advances for this principle of justice, the most explicit is that it is preferable to live in a society where we have the maximum opportunity to choose whether we shall become the subject of criminal liability. In addition Hart intimates that it is ideologically desirable for the government to treat- its citizens as self-actuating, choosing agents. This principle of respect for individual autonomy is implicitly confirmed whenever those who lack an adequate choice are excused for their offenses.

I agree with this formulation of the rationale for excuses in the criminal law. In my view, this rationale extends beyond specific codified excuses and embraces the residual excuse known as the defence of necessity. At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable.

Punishment of such acts, as Fletcher notes at p. 813, can be seen as purposeless as well as unjust:

. . . involuntary conduct cannot be deterred and therefore it is pointless and wasteful to punish involuntary actors. This theory . . . of pointless punishment, carries considerable weight in current Anglo-American legal thought.

Relating necessity to the principle that the law ought not to punish involuntary acts leads to a conceptualization of the defence that integrates it into the normal rules for criminal liability rather than constituting it as a sui generis exception and threatening to engulf large portions of the criminal law. Such a conceptualization accords with our traditional legal, moral and philosophic views as to what sorts of acts and what sorts of actors ought to be punished. In this formulation it is a defence which I do not hesitate to acknowledge and would not hesitate to apply to relevant facts capable of satisfying its necessary prerequisites.

(c) Limitations on the defence

If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognized, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. That rationale as I have indicated, is the recognition that it is inappropriate to punish actions which are normatively “involuntary”. The appropriate controls and limitations on the defence of necessity are, therefore, addressed to ensuring that the acts for which the benefit of the excuse of necessity is sought are truly “involuntary” in the requisite sense.

In Morgentaler v. The Queen (1975), 20 C.C.C. (2d) 449 at p. 497, 53 D.L.R. (3d) 161 at p. 209, [1976] 1 S.C.R. 616 at p. 678, I was of the view that any defence of necessity was restricted to instances of non-compliance “in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible”. In my opinion, this restriction focuses directly on the “involuntariness” of the purportedly necessitous behaviour by providing a number of tests for determining whether the wrongful act was truly the only realistic reaction open to the actor or whether he was in fact making what in fairness could be called a choice. If he was making a choice, then the wrongful act cannot have been involuntary in the relevant sense.

The requirement that the situation be urgent and the peril be imminent, tests whether it was indeed unavoidable for the actor to act at all. In Lafave and Scott, Handbook on Criminal Law (1972), p. 338, one reads:

It is sometimes said that the defense of necessity does not apply except in an emergency—when the threatened harm is immediate, the threatened disaster imminent. Perhaps this is but a way of saying that, until the time comes when the threatened harm is immediate, there are generally options open to the defendant to avoid the harm, other than the option of disobeying the literal terms of the law—the rescue ship may appear, the storm may pass, and so the defendant must wait until that hope of survival disappears.

At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable.

The requirement that compliance with the law be “demonstrably impossible” takes this assessment one step further. Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law? Was there a legal way out? I think this is what Bracton means when he lists “necessity” as a defence, providing the wrongful act was not “avoidable”. The question to be asked is whether the agent had any real choice: could he have done otherwise? If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of “necessity” and human instincts.

The importance of this requirement that there be no reasonable legal alternative cannot be overstressed.

Even if the requirements for urgency and “no legal way out” are met, there is clearly a further consideration. There must be some way of assuring proportionality. No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil. In such circumstances we expect the individual to bear the harm and refrain from acting illegally. If he cannot control himself we will not excuse him. According to Fletcher, this requirement is also related to the notion of voluntariness [at p. 804]:

. . . if the gap between the harm done and the benefit accrued becomes too great, the act is more likely to appear voluntary and therefore inexcusable. For example, if the actor has to blow up a whole city in order to avoid the breaking of his finger, we might appropriately expect him to endure the harm to himself. His surrendering to the threat in this case violates our expectations of appropriate and normal resistance to pressure. Yet as we lower the degree of harm to others and increase the threatened harm to the person under duress we will reach a threshold at which, in the language of the Model Penal Code, “a person of reasonable firmness” would be “unable to resist.” Determining this threshold is patently a matter of moral judgment about what we expect people to be able to resist in trying situations. A valuable aid in making that judgment is comparing the competing interests at stake and assessing the degree to which the actor inflicts harm beyond the benefit that accrues from his action.

I would therefore add to the preceding requirements a stipulation of proportionality expressible, as it was in Morgentaler, by the proviso that the harm inflicted must be less than the harm sought to be avoided.

(d) Illegality or contributory fault

The Crown submits that there is an additional limitation on the availability of the defence of necessity. Citing R. v. Salvador, Wannamaker, Campbell and Nunes (1981), 59 C. C. C. (2d) 521, 2i C. R. (3d) 1, 45 N.S.R. (2d) 192 (N.S.S.C.A.D.), it argues that because the appellants were committing a crime when their necessitous circumstances arose, they should be denied the defence of necessity as a matter of law.

In Salvador, Jones J.A. thought it highly relevant that the accused were engaged in an illegal venture when they were forced ashore. He would have denied the necessity defence in such circumstances. At p. 528, he said:

Should the appellants who embarked on an illegal venture be now heard to plead necessity when it was the venture which eventually gave rise to that necessity? One who undertakes an ocean voyage in a 56 foot yacht loaded to the gunnels with narcotics could scarcely be surprised at getting into difficulties at sea or eventually running afoul of the law. To put things in perspective, this was a voyage by a band of conspirators with a cargo of contraband having every intention of violating the law of nations from the outset. It is clear from their evidence that they were employed for that purpose. I fail to see how any self-respecting nation, as a signatory to the Convention on Narcotic Drugs, could countenance the defence of necessity or distress in such circumstances.

Macdonald J.A. (Cooper and Hart JJ.A. concurring) said, in agreement, after holding that the necessity defence was not available because compliance with the law was not demonstrably impossible [at p. 545]:

Finally I have grave reservations whether the defence of necessity has any application to the circumstances of this case. I entertain such reservation primarily because the appellants were actively engaged in the commission of a joint criminal venture when the circumstances arose that they contend gave rise to, or supported, the defence of necessity.

Were it indeed accurate that the fact of doing something illegal when the necessitous circumstances arise will deny one the benefit of the necessity defence, I would nevertheless doubt that this principle would be relevant to the present case. The accused here (as incidentally was also apparently the case in Salvador) were not doing anything illegal under Canadian law when the necessity arose. They were on the high seas. They were conspiring to import marijuana into the United States, not Canada. If such a limitation on the necessity defence were to be formulated, in my view, the accused should, at a minimum, be violating some law of the forum, not just the law of a foreign State.

In any event, I have considerable doubt as to the cogency of such a limitation. If the conduct in which an accused was engaging at the time the peril arose was illegal, then it should clearly be punished, but I fail to see the relevance of its illegal character to the question of whether the accused’s subsequent conduct in dealing with this emergent peril ought to be excused on the basis of necessity. At most the illegality—or if one adopts Jones J.A..’s approach, the immorality—of the preceding conduct will colour the subsequent conduct in response to the emergency as also wrongful. But that wrongfulness is never in any doubt. Necessity goes to excuse conduct, not to justify it. Where it is found to apply it carries with it no implicit vindication of the deed to which it attaches. That cannot be over-emphasized. Were the defence of necessity to succeed in the present case, it would not in any way amount to a vindication of importing controlled substances nor to a critique of the law prohibiting such importation. It would also have nothing to say about the comparative social utility of breaking the law against importing as compared to obeying the law. The question, as I have said, is never whether what the accused has done is wrongful. It is always and by definition, wrongful. The question is whether what he has done is voluntary. Except in the limited sense I intend to discuss below, I do not see the relevance of the legality or even the morality of what the accused was doing at the time the emergency arose to this question of the voluntariness of the subsequent conduct.

In Salvador, Jones J.A., cited sources in support of his view that illegal conduct should act as a bar to the necessity defence. These sources do not support that view but do support a closely related notion—that if the accused’s own “fault” (including negligence or recklessness) is responsible for the events giving rise to the necessity, he may not rely on the necessity defence.

This limitation has found expression in several American state statutes codifying the necessity defence, such as those of New York and Illinois and has been adopted by the United States National Commission on Reform of Federal Criminal Laws which recommended that the defence apply only “where the situation developed through no fault of the actor”. A parallel is sometimes drawn between such a limitation and the restrictions placed on the availability of the largely analogous defence of duress: see, e.g., Ashworth, “Reason, Logic and Criminal Liability”, 91 L.Q.R. 102 at p. 106 (1975).

In my view, the accused’s fault in bringing about the situation later invoked to excuse his conduct can be relevant to the availability of the defence of necessity, but not in the sweeping way suggested by some of the commentators and in some of the statutory formulations. In so far as the accused’s “fault” reflects on the moral quality of the action taken to meet the emergency, it is irrelevant to the issue of the availability of the defence on the same basis as the illegality or immorality of the actions preceding the emergency are irrelevant. If this fault is capable of attracting criminal or civil liability in its own right, the culprit should be appropriately sanctioned. I see no basis, however, for “transferring” such liability to the actions taken in response to the emergency, especially where to do so would result in attaching criminal consequences on the basis of negligence to actions which would otherwise be excused.

In my view, the better approach to the relationship of fault to the availability of necessity as a defence is based once again on the question of whether the actions sought to be excused were truly “involuntary”. If the necessitous situation was clearly foreseeable to a reasonable observer, if the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then I doubt whether what confronted the accused was in the relevant sense an emergency. His response was in that sense not “involuntary”. “Contributory fault” of this nature, but only of this nature, is a relevant consideration to the availability of the defence.

It is on this point that the analogy to duress is especially enlightening. Section 17 of the Criminal Code provides:

17. A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if he believes that the threats will be carried out and if he is not a party to a conspiracy or association whereby he is subject to compulsion . . . (Emphasis mine.)

The rationale for the proviso making the defence unavailable to a member of a criminal conspiracy or association, is the same as that articulated with regard to the common law defence of duress by Lord Morris of Borth-y-Gest in Director of Public Prosecutions for Northern Ireland v. Lynch [1975] A.C. 653 at p. 670:

In posing the case where someone is “really” threatened I use the word “really” in order to emphasise that duress must never be allowed to be the easy answer of those . . . who readily could have avoided the dominance of threats nor of those who allow themselves to be at the disposal and under the sway of some gangster-tyrant.

If s. 17 and the comments of Lord Morris of Borth-y-Gest embody a notion of “contributory fault” it is not per se on account of the accused’s participation in criminal or immoral activity at the time he became subject to threats, nor on account of any simple negligence on his part, but rather on account of the clear foreseeability of his becoming subject to such threats and domination and the consequent conclusion that he was not “really” threatened.

In my view, the same test is applicable to necessity. If the accused’s “fault” consists of actions whose clear consequences were in the situation that actually ensued, then he was not “really” confronted with an emergency which compelled him to commit the unlawful act he now seeks to have excused. In such situations the defence is unavailable. Mere negligence, however, or the simple fact that he was engaged in illegal or immoral conduct when the emergency arose will not disentitle an individual to rely on the defence of necessity.

(e) Onus of proof

Although necessity is spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act. The prosecution must prove every element of the crime charged. One such element is the voluntariness of the act. Normally, voluntariness can be presumed, but if the accused places before the court, through his own witnesses or through cross-examination of Crown witnesses, evidence sufficient to raise an issue that the situation created by external forces was so emergent that failure to act could endanger life or health and upon any reasonable view of the facts, compliance with the law was impossible, then the Crown must be prepared to meet that issue. There is no onus of proof on the accused.

The Crown argues, however, that s. 7(2) of the Narcotic Control Act shifts the burden of persuasion to the accused.

Section 7(2) provides:

7.(2) In any prosecution under this Act the burden of proving than an exception, exemption, excuse or qualification prescribed by law operates in favour of the accused is on the accused, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, excuse or qualification does not operate in favour of the accused, whether or not it is set out in the information or indictment.

The Crown contends that the defence of necessity is an “exception, exemption, excuse or qualification prescribed by law”. I find no merit in this contention.

The Narcotic Control Act provides for several statutory exceptions to its broad prohibitions against importation, sale, manufacture and possession. The c fences created by the Act are generally subject to the proviso that the accused not have been acting under the authority of the Act or the regulations thereunder. See ss. 3(1) (possession), 5(1) (importation) and 6(1) (cultivation). Section 12 of the Act implements this scheme by providing for a set of regulations governing the issuance of licences for, inter alia, the importation, sale, manufacture or possession of narcotics. One who sells, imports, manufactures or possesses narcotics pursuant to such authority does not commit an offence.

It seems clear that it is to these statutory exceptions that s. 7(2) refers, and not to common law defences such as necessity. One who wishes to plead the possession of a licence or other lawful authority in response to a charge of importation bears, under s. 7(2), the burden of persuading the trier of fact that such licence exists. One who pleads necessity bears no such burden. Section 7(2) does not place a persuasive burden as to the defence of necessity on the accused.

(f) Preliminary conclusions as to the defence of necessity

It is now possible to summarize a number of conclusions as to the defence of necessity in terms of its nature, basis and limitations:

  1. the defence of necessity could be conceptualized as either a justification or an excuse;
  2. it should be recognised in  Canada as an excuse, operating by virtue of s. 7(3) of the Criminal Code;
  3. necessity as an excuse implies no vindication of the deeds of the actor;
  4. the criterion is the moral involuntariness of the wrongful action;
  5. this involuntariness is measured on the basis of society’s expectation of appropriate and normal resistance to pressure;
  6. negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity;
  7. actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle;
  8. the existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law;
  9. the defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril;
  10. where the accused places before the court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt.

(g) The judge’s charge

The trial judge concluded that there was before him an adequate body of evidence to raise the issue of necessity and proceeded to direct the jury with respect to the defence. As I have earlier indicated, the Crown disputes whether the defence was open to the accused in the circumstances of the case and submits further that if it was in fact available, the trial judge erred in his direction.

In my view, the trial judge was correct in concluding that on the evidence before him he should instruct the jury with regard to necessity. There was evidence before him from which a jury might conclude that the accused’s actions in coming ashore with their cargo of cannabis were aimed at self-preservation in response to an overwhelming emergency. I have already indicated that in my view they were not engaged in conduct that was illegal under Canadian criminal law at the time the emergency arose, and that even if they were, that fact alone would not disentitle them to raise the defence. The question then becomes whether the trial judge erred in charging the jury in the terms that he did.

The summary of conclusions with regard to necessity in the foregoing section indicates that for the defence to succeed, an accused’s actions must be, in the relevant sense, an “involuntary” response to an imminent and overwhelming peril. The defence cannot succeed if the response was disproportional to the peril or if it was not “involuntary” in the sense that the emergency was not “real” or not imminent or that there was a reasonable alternative response that was not illegal.

In the course of his charge on the issue of necessity the trial judge instructed the jury, using the specific words that appear in Morgentaler v. The Queen (1975), 20 C.C. C. (2d) 449, 53 D. L. R. (3d) 161, [1976] 1 S.C.R. 616, to the effect that they must find facts which amount to “an urgent situation of clear and imminent peril when compliance with the law is demonstrably impossible” in order for the appellants’ non-compliance with the law against importation and possession of cannabis to be excused. That is the correct test. It is, with respect, however, my view that in explaining the meaning and application of this test, the trial judge fell into error.

The trial judge was obliged, in my opinion, to direct the jury’s attention to a number of issues pertinent to the test for necessity. Was the emergency a real one? Did it constitute an immediate threat of the harm purportedly feared? Was the response proportionate? In comparing this response to the danger that motivated it, was the danger one that society would reasonably expect the average person to withstand? Was there any reasonable legal alternative to the illegal response open to the accused? Although the trial judge did not explicitly pose each and every one of these questions in my view his charge was adequate to bring the consideration underlying them to the jury’s attention on every issue except the last one, the question of a reasonable alternative.

This issue was the determining obstacle to the success of the defence of necessity in a number of the cases referred to earlier, including R. v. Gilkes (1978), 8 C.R. (3d) 159; R. v. Doud (1982), 18 M.V.R. 146; R. v. Byng (1977), 20 N.S.R. (2d) 125, and for the present case most notably, because of the similarity of its factual basis, R. v. Salvador, Wannamaker, Campbell and Nunes (1981), 59 C.C.C. (2d) 521, 21 C.R. (3d) 1, 45 N.S.R. (2d) 192 (N.S.S.C.A.D.). Indeed, in most cases where the defence is raised this consideration will almost certainly be the most important one.

In his charge, the trial judge did not advert to this requirement. He did tell the jury that they must find facts capable of showing  that “compliance with the law was demonstrably impossible. . .” but on his recharge he put before the jury a significantly different test. The test, he said, is:

. . . can you find facts from this evidence, and that means all the evidence, of course, that the situation of the Samarkanda at sea was so appallingly dire and dangerous to life that a reasonable doubt arises as to whether or not their decision was justified?

And again, at the conclusion of the recharge:

There is no need for the evidence to show you that a certainty of death would result unless the action complained of by the Crown was taken. It doesn’t go so far as that. You have to look at it as reasonable people and decide on any reasonable view of the matter, would these people have been justified in doing what they did? That is all that necessity means.

Both of these passages imply that the crucial consideration was whether the accused acted reasonably in coming into shore with their load of cannabis rather than facing death at sea. That is not sufficient as a test. Even if it does deal with the reality of the peril, its imminence and the proportionality of putting into shore, it does not deal at all with the question of whether there existed any other reasonable responses to the peril that were not illegal. Indeed, aside from the initial repetition of the Morgentaler formula, the trial judge did not advert to this consideration at all, nor did he direct the jury’s attention to the relevance of evidence indicating the possibility of such alternative courses of action. In these respects I believe he erred in law. He did not properly put the question of a “legal way out” before the jury.

In my view, this was a serious error and omission going to the heart of the defence of necessity. The error justifies a new trial. …

V Conclusion

On the basis of all the above, it is my conclusion that the Court of Appeal was correct in the result in ordering a new trial and was correct in sustaining the trial judge’s decision to withhold the botanical defence from the jury.

I would dismiss the appeals.

WILSON J.:—The factual background of this case, the history of the litigation in the courts below and the grounds on which the appeal was taken in this Court are very fully set out in the reasons for judgment of the Chief Justice (Dickson J. at the date of the hearing) and it is not necessary for me to repeat them. Indeed, inasmuch as the Chief Justice’s conclusion as to the defence of necessity seems clearly correct on the facts of this case and his disposition of the appeal manifestly just in the circumstances, I am dealing in these reasons only with the proposition very forcefully advanced by the Chief Justice in his reasons that the appropriate jurisprudential basis on which to premise the defence of necessity is exclusively that of excuse. My concern is that the learned Chief Justice appears to be closing the door on justification as an appropriate jurisprudential basis in some cases and I am firmly of the view that this is a door which should be left open by the court.

As the Chief Justice points out, criminal law theory recognizes a distinction between justification and excuse. In the case of justification the wrongfulness of the alleged offensive act is challenged in the case of excuse the wrongfulness is acknowledged but a ground for the exercise of judicial compassion for the actor is asserted. By way of illustration, an act may be said to be justified when an essential element of the offence is absent, so that the defence effectively converts the accused’s act from wrongful to rightful. Accordingly, those defences which serve to establish a lack of culpable intent on the part of the accused, or which demonstrate that, although the accused intended to commit the act, the act was one which the accused was within his rights to commit, may be labelled justification in so far as they elucidate the innocent nature of the act giving rise to the charge. Such doctrines as mistake of fact, automatism, etc., which, in the words of Lord Hailsham of St. Marylebone in Director of Public Prosecutions v. Morgan, [1975] 2 All E.R. 347 (H.L.), are raised in order to “negative” mens rea, may be appropriately placed in this category as they are invoked in order to undermine the very ingredient of culpability. Similarly, the accused who claims to have acted out of self-defence or provocation in utilizing aggressive force against another individual raises a justificatory defence in that he asserts the essential rightfulness of his aggressive act.

On the other hand, an excuse requires the court to evaluate the presence or absence of the accused’s will. In contemporary jurisprudence the most forceful champion of excuse in criminal law has been Professor George Fletcher who has advocated a trend toward individualizing the conceptual basis for culpability so that all circumstances subjectively relevant to the accused be considered by the court. As such, the jury is requested to exercise compassion for the accused’s predicament in its evaluation of his claim: “I couldn’t help myself “: Fletcher, “The Individualization of Excusing Conditions”, 47 So. Cal. L.R. 1264 at p. 1269 (1974). This type of analysis is reflected in the dissent of Seiler J. of the Supreme Court of Missouri in State of Missouri v. Green (1971), 470 S.W. 2d 565, in which the accused’s prison escape was seen as excusable due to the intolerability of his confinement with aggressive homosexual inmates by whom he had been repeatedly victimized. The basis of the defence could not have been that of justification based on an objective balance of evils since numerous United States courts had already established that the evil of prison escape outweighed the evil of intolerable prison conditions: see, e.g., People v. Whipple (1929), 279 P. 1008 (Cal.); People v. Noble (1969), 170 N.W. 2d 916 (Mich. App.). Rather, the issue for Seiler J. was the blamelessness of an accused in committing an act which, although admittedly wrong, was one for which any juror might have compassion. Thus, the nature of an excuse is to personalize the plea so that, while justification looks to the rightness of the act, excuse speaks to the compassion of the court for the actor.

As Chief Justice Dickson points out, although the necessity defence has engendered a significant amount of judicial and scholarly debate, it remains a somewhat elusive concept. It is, however, clear that justification and excuse are conceptually quite distinct and that any elucidation of a principled basis for the defence of necessity must be grounded in one or the other.

Turning first to the category of excuse, the concept of “normative involuntariness” stressed in the reasons of the Chief Justice may, on one reading, be said to fit squarely within the framework of an individualized plea which Professor Fletcher indicates characterizes all claims of excusability. The notional involuntariness of the action is assessed in the context of the accused’s particular situation. The court must ask not only whether the offensive act accompanied by the requisite culpable mental state (i.e., intention, recklessness, etc.) has been established by the prosecution, but whether or not the accused acted so as to attract society’s moral outrage. In some United States jurisdictions this type of evaluation has been utilized to excuse from criminal liability individuals who commit intentional offensive acts but who operate under mental or sociological impairments with which one can sympathize (see State v. St. Clair (1953), 262 S.W. 2d 25 (Mo. S.C.)), or to form the theoretical basis for a defence where the accused confronted a desperate situation for which society might well be expected to express its compassion: see United States v. Holmes (1842), 26 Fed. Cas. 360 (E.D. Pa.). In evaluating a claim of “normative involuntariness” we seem to be told that the individual’s criminally wrongful act was nevertheless blameless in the circumstances.

The position in English law, by contrast, was most accurately stated in the well-known case of R. v. Dudley and Stephens (1884), 14 Q.B.D. 273, in which Lord Coleridge C.J. warned [at p. 288] against allowing “compassion for the criminal to change or weaken in any manner the legal definition of the crime”. The underlying principle here is the universality of rights, that all individuals whose actions are subjected to legal evaluation must be considered equal in standing. Indeed, it may be said that this concept of equal assessment of every actor, regardless of his particular motives or the particular pressures operating upon his will, is so fundamental to the criminal law as rarely to receive explicit articulation. However, the entire premise expressed by such thinkers as Kant and Hegel that man is by nature a rational being, and that this rationality finds expression both in the human capacity to overcome the impulses of one’s own will and in the universal right to be free from the imposition of the impulses and will of others (see Hegel’s Philosophy of Right (Knox, translator, 1952), at pp. 226-7) supports the view that an individualized assessment of offensive conduct is simply not possible. If the obligation to refrain from criminal behaviour is perceived as a reflection of the fundamental duty to be rationally cognizant of the equal freedom of all individuals, then the focus of an analysis of culpability must be on the act itself (including its physical and mental elements) and not on the actor. The universality of such obligations precludes the relevance of what Fletcher refers to as “an individualized excusing condition”.

On the other hand, the necessity of an act may be said to exempt an actor from punishment, since the person who acts in a state of what the Chief Justice calls “normative involuntariness” may be viewed as having been moved to act by the instinct for self-preservation. If so, the defence does not invoke the court’s compassion but rather embodies an implicit statement that the sanction threatened by the law (i.e., future punishment in one form or another) could never overcome the fear of immediate death which the accused faced. Accordingly, in such a case the law is incapable of controlling the accused’s conduct and responding to it with any punishment at all. Although such an act dictated by the necessity of self-preservation is a voluntary one (in the normal sense of the word), its “normative involuntariness” (in the sense that the actor faced no realistic choice) may form the basis of a defence if this is conceived as based on the pointlessness of punishment rather than on a view of the act itself as one the accused was entitled to commit. Indeed, one finds an explicit warning to this effect in Kant, The Metaphysical Elements of Justice (Ladd, translator, 1965), pp. 41-2, where it is asserted that “through a strange confusion among jurists” the analysis of the wrongfulness of an act is often intertwined with the unquestionable futility of inflicting punishment on a person who has acted in despair or in circumstances of dire necessity.

It may be opportune at this point to comment briefly on the need to avoid slipping into what may be labelled an “instrumentalist analysis” of the purposes of punishment. For example, an analytic focus on excusing conditions is often premised on the fact that punishment in such situations will not serve the further goals of deterrence, rehabilitation, etc.: see, e.g., Williams, Criminal Law: The General Part, 2nd ed. (1961), pp. 738-9. Such considerations, however, cannot form the basis of an acceptable defence since they seem to view criminal culpability merely as a phenomenon in a chain of cause and effect. From an instrumentalist point of view the question is not whether liability is demanded in and of itself (as Lord Coleridge C.J. insisted must be the case in Dudley and Stephens, supra), but rather whether the infliction of punishment will have some positive consequential effect: see, e.g., J. Bentham, An Introduction to the Principles of Morals and Legislation, 2nd ed. (1823), vol. II, p. 1.

The view of criminal liability as purposive only when it serves as a means to a further end is inherently problematic since the further goals of punishment are by their very nature one step removed from the determination of guilt or innocence. Just as we do not inquire into the socio-economic effects of a particular remedy for determining parties’ respective rights in civil litigation (see, e.g., Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287 (C.A.), it does not seem possible to evaluate criminality with regard to the end results which punishment will or will not achieve. Accordingly, if the basis for the accused’s defence is reducible to compassion for his individual attributes or predicament, or the ineffectiveness of punishment in rehabilitating him or deterring future acts, the question raised is the type of remedy and the fashioning of an appropriate sentence. The concerns embodied in such a defence are legitimately addressed to the sentencing process but cannot, in my view, be the basis of a successful defence leading to an acquittal.

This, however, is distinguishable from the situation in which punishment cannot on any grounds be justified, such as, the situation where a person has acted in order to save his own life. As Kant indicates, although the law must refrain from asserting that conduct which otherwise constitutes an offence is rightful if done for the sake of self-preservation, there is no punishment which could conceivably be appropriate to the accused’s act. As such, the actor falling within the Chief Justice’s category of “normative involuntariness” is excused, not because there is no instrumental ground on which to justify his punishment, but because no purpose inherent to criminal liability and punishment —i.e., the setting right of a wrongful act—can be accomplished for an act which no rational person would avoid.

Returning to the defence of necessity as a justification, it may generally be said that an act is justified on grounds of necessity if the court can say that not only was the act a necessary one but it was rightful rather than wrongful. When grounded on the fundamental principle that a successful defence must characterize an act as one which the accused was within his rights to commit, it becomes immediately apparent that the defence does not depend on the immediacy or “normative involuntariness” of the accused’s act unless, of course, the involuntariness is such as to be pertinent to the ordinary analysis of mens rea. The fact that one act is done out of a sense of immediacy or urgency and another after some contemplation cannot, in my view, serve to distinguish the quality of the act in terms of right or wrong. Rather, the justification must be premised on the need to fulfil a duty conflicting with the one which the accused is charged with having breached.

In discussing justification based on a conflict of duties one must be mindful of the viewpoint expressed by Dickson J. (as he then was) in Morgentaler v. The Queen (1975), 20 C.C.C. (2d) 449 at p. 497, 53 D.L.R. (3d) 161 at p. 209, [1976] 1 S.C.R. 616 at p. 678, to the effect that “[n]o system of positive law can recognize any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value”. This statement, in my view, is clearly correct if the “higher social value” to which the accused points is one which is not reflected in the legal system in the form of a duty. That is to say, pursuit of a purely ethical “duty” such as, for example, the duty to give to charity, may represent an ethically good or virtuous act but is not within the realm of legal obligations and cannot therefore validly be invoked as a basis on which to violate the positive criminal law. This illustration exemplifies the essential proposition that although “a morally motivated act contrary to law may be ethically justified . . . the actor must accept the [legal] penalty for his action”: United States v. Moylan (1969), 417 F. 2d 1002 at p. 1008 (4th Cir. ).

Similarly, the Chief Justice in his reasons for judgment in the present case correctly underlines the fact that a utilitarian balancing of the benefits of obeying the law as opposed to disobeying it cannot possibly represent a legitimate principle against which to measure the legality of an action since any violation of right permitted to be justified on such a utilitarian calculus does not, in the Chief Justice’s words, “fit[] well with the judicial function”. The maximization of social utility may well be a goal of legislative policy but it is not part of the judicial task of delineating right and wrong. The case of Southwark London Borough Council v. Williams et al., [1971] Ch. 734, [1971] 2 All E.R., 175 (C.A.), affords an appropriate illustration. In raising a defence of necessity to a charge of trespass the defendants implicitly argued that a violation of the rights of the property owner was justified because of the maximized social utility achieved by their using the property in that otherwise the defendants would remain homeless and the property unused. Lord Justice Megaw recognized that it was no part of the adjudicator’s task either to maximize utility or distribute scarce resources on some criterion of merit as demanded by the defendants since the distribution of society’s resources is a political process that must be accomplished by a distributive mechanism encompassing the entire policy. Lord Denning M.R. pointed out that if such claims became a matter of right for an adjudicative body to determine and enforce, the very notion of right would be undermined. He said at p. 179: “If homelessness were once admitted as a defence to trespass, no one’s house could be safe.”

Accordingly, not only can the system of positive law not tolerate an individual opting to act in accordance with the dictates of his conscience in the event of a conflict with legal duties, but it cannot permit acts in violation of legal obligations to be justified on the grounds that social utility is thereby increased. In both situations the conflicting “duty” to which the defence arguments point is one which the court cannot take into account as it invokes considerations external to a judicial analysis of the rightness or wrongness of the impugned act. As Lord Coleridge C.J. succinctly put it in Dudley and Stephens, supra, at p. 287: “Who is to be the judge of this sort of necessity?”

On the other hand, in some circumstances defence counsel may be able to point to a conflicting duty which courts can and do recognize. For example, one may break the law in circumstances where it is necessary to rescue someone to whom one owes a positive duty of rescue (see R. v. Walker) (1979), 48 C.C.C. (2d) 126, 5 M.V.R. 114 (Ont. Co. Ct.)), since failure to act in such a situation may itself constitute a culpable act or omission: see R. v. Instan, [1893] 1 Q.B. 450. Similarly, if one subscribes to the viewpoint articulated by Laskin C.J.C. in Morgentaler, supra, and perceives a doctor’s defence to an abortion charge as his legal obligation to treat the mother rather than his alleged ethical duty to perform an unauthorized abortion, then the defence may be invoked without violating the prohibition enunciated by Dickson J. in Morgentaler against choosing a non-legal duty over a legal one.

It must be acknowledged, however, that on the existing state of the law the defence of necessity as justification would not be available to the person who rescues a stranger since the absence of a legal duty to rescue strangers reduces such a case to a conflict of a legal with a purely ethical duty. Such an act of rescue may be one deserving of no punishment and, indeed, deserving of praise, but it is nevertheless a culpable act if the law is violated in the process of the rescue.

As Professor E. J. Weinrib has most astutely pointed out, rescue scenarios often represent the mirror image of necessity scenarios; to acknowledge necessity as a justification premised on the discharge of the conflicting duty to rescue a stranger could, without much stretch of the imagination, be turned around so as to enable a potential rescuee to assert a right to be rescued by any stranger: Weinrib, “The Case for a Duty to Rescue”, 90 Yale L.J. 247 at pp. 273-4 (1980). By way of illustration, in the classic torts case of Vincent v. Lake Erie Trans. Co. (1910), 124 N.W. 221 (S. Ct. Minn.), it was held that a shipowner was right in helping himself to the use of a dock-owners property during a storm, thus invoking the defence of necessity to a charge of trespass to the dock. The argument was premised on the notion of conflicting legal duties and was allowed to succeed in large part due to a previous ruling in Ploof v. Putnam (1908), 71 Atl. 188 (S. Ct. Vt.), in which a dock-owner in similar circumstances was held liable to a shipowner for refusing to grant the ship access to the dock during a storm. The combined effect of the two cases may be said to turn the altruistic action into a coercive one in that the rescuer is not only given a valid justification but the rescuee is perceived as having an enforceable right. For this reason the common law has refrained from enunciating either an extended duty to rescue or an expansive right of necessity. In such circumstances “[t]here may be a moral duty to [perform a rescue], but it is not practicable to make it a legal duty”: Home Office v. Dorset Yacht Co. Ltd., [1970] A.C. 1004 at p. 1027, per Lord Reid. Rather, persons in need of aid from unknown passersby have been left to “be relieved by the charitable and the good” (per Lord Denning M.R. in Borough of Southwark, supra, at p. 179).

In similar fashion the ethical considerations of the “charitable and the good” must be kept analytically distinct from duties imposed by law. Accordingly, where necessity is invoked as a justification for violation of the law, the justification must, in my view, be restricted to situations where the accused’s act constitutes the discharge of a duty recognized by law. The justification is not, however, established simply by showing a conflict of legal duties. The rule of proportionality is central to the evaluation of a justification premised on two conflicting duties since the defence rests on the rightfulness of the accused’s choice of one over the other.

As the facts before the court in the present case do not involve a conflict of legal duties it is unnecessary to discuss in detail how a court should go about assessing the relative extent of two evils. Suffice it to say that any such assessment must respect the notion of right upon which justification is based. The assessment cannot entail a mere utilitarian calculation of, for example, lives saved and deaths avoided in the aggregate but must somehow attempt to come to grips with the nature of the rights and duties being assessed. This would seem to be consistent with Lord Coleridge’s conclusion that necessity can provide no justification for the taking of a life, such an act representing the most extreme form of rights violation. As discussed above, if any defence for such a homicidal act is to succeed, it would have to be framed as an excuse grounded on self-preservation. It could not possibly be declared by the court to be rightful. By contrast, the justification analysis would seem to support those cases in which fulfilment of the legal duty to save persons entrusted to one’s care is preferred over the lesser offences of trespass or petty theft: see Mouse’s Case (1608), 12 Co. Rep. 63, 77 E.R. 1341; Amiens, Ch. corr., April 22, 1898, S. 1899.2.1 (Menard’s Case). The crucial question for the justification defence is whether the accused’s act can be said to represent a furtherance of or a detraction from the principle of the universality of rights.

In summary, it seems to me that the category of “normative involuntariness” into which an act done in the interests of self-preservation falls is characterized not by the literal voluntariness of the act but by its unpunishable nature. As such, the act may be exempted from culpability if it arose in a life-threatening situation of necessity. Where, however, a defence by way of excuse is premised on compassion for the accused or on a perceived failure to achieve a desired instrumental end of punishment, the judicial response must be to fashion an appropriate sentence but to reject the defence as such. The only conceptual premise on which necessity as an excuse could rest is the inherent impossibility of a court’s responding in any way to an act which, although wrongful, was the one act which any rational person would commit.

Where the defence of necessity is invoked as a justification the issue is simply whether the accused was right in pursuing the course of behaviour giving rise to the charge. Thus, where the act otherwise constitutes a criminal offence (i.e., it embodies both mens rea and the actus reus) the accused must show that he operated under a conflicting legal duty which made his seemingly wrongful act right. But such justification must be premised on a right or duty recognized by law. This excludes conduct attempted to be justified on the ground of an ethical duty internal to the conscience of the accused as well as conduct sought to be justified on the basis of a perceived maximization of social utility resulting from it. Rather, the conduct must stem from the accused’s duty to satisfy his legal obligations and to respect the principle of the universality of rights.

I would dismiss the appeals.

Appeals dismissed.

 

R. v. Latimer
Supreme Court of Canada
[2001] 1 S.C.R. 3

JUDGMENT By The Court:

I. Facts

6          The appellant, Robert Latimer, farmed in Wilkie, Saskatchewan. His 12-year-old daughter, Tracy, suffered a severe form of cerebral palsy. She was quadriplegic and her physical condition rendered her immobile. She was bedridden for much of the time. Her condition was a permanent one, caused by neurological damage at the time of her birth. Tracy was said to have the mental capacity of a four-month-old baby, and she could communicate only by means of facial expressions, laughter and crying. She was completely dependent on others for her care. Tracy suffered seizures despite the medication she took. It was thought she experienced a great deal of pain, and the pain could not be reduced by medication since the pain medication conflicted with her anti-epileptic medication and her difficulty in swallowing. Tracy experienced five to six seizures daily. She had to be spoon-fed, and her lack of nutrients caused weight loss.
7          There was evidence that Tracy could have been fed with a feeding tube into her stomach, an option that would have improved her nutrition and health, and that might also have allowed for more effective pain medication to be administered. The Latimers rejected the feeding-tube option as being intrusive and as representing the first step on a path to preserving Tracy’s life artificially.
8          Tracy had a serious disability, but she was not terminally ill. Her doctors anticipated that she would have to undergo repeated surgeries, her breathing difficulties had increased, but her life was not in its final stages.
9          Tracy enjoyed music, bonfires, being with her family and the circus. She liked to play music on a radio, which she could use with a special button. Tracy could apparently recognize family members and she would express joy at seeing them. Tracy also loved being rocked gently by her parents.
10        Tracy underwent numerous surgeries in her short lifetime. In 1990, surgery tried to balance the muscles around her pelvis. In 1992, it was used to reduce the abnormal curvature in her back.
11        Like the majority of totally involved, quadriparetic children with cerebral palsy, Tracy had developed scoliosis, an abnormal curvature and rotation in the back, necessitating surgery to implant metal rods to support her spine. While it was a successful procedure, further problems developed in Tracy’s right hip: it became dislocated and caused her considerable pain.
12        Tracy was scheduled to undergo further surgery on November 19, 1993. This was to deal with her dislocated hip and, it was hoped, to lessen her constant pain. The procedure involved removing her upper thigh bone, which would leave her lower leg loose without any connecting bone; it would be held in place only by muscle and tissue. The anticipated recovery period for this surgery was one year.
13        The Latimers were told that this procedure would cause pain, and the doctors involved suggested that further surgery would be required in the future to relieve the pain emanating from various joints in Tracy’s body. According to the appellant’s wife, Laura Latimer, further surgery was perceived as mutilation. As a result, Robert Latimer formed the view that his daughter’s life was not worth living.
14        In the weeks leading up to Tracy’s death, the Latimers looked into the option of placing Tracy in a group home in North Battleford. She had lived there between July and October of 1993, just prior to her death, while her mother was pregnant. The Latimers applied to place Tracy in the home in October, but later concluded they were not interested in permanently placing her in that home at that time.
15        On October 12, 1993, after learning that the doctors wished to perform this additional surgery, the appellant decided to take his daughter’s life. On Sunday, October 24, 1993, while his wife and Tracy’s siblings were at church, Robert Latimer carried Tracy to his pickup truck, seated her in the cab, and inserted a hose from the truck’s exhaust pipe into the cab. She died from the carbon monoxide.
16        The police conducted an autopsy and discovered carbon monoxide in her blood. The appellant at first maintained that Tracy simply passed away in her sleep. He later confessed to having taken her life, and gave a statement to the investigating police and partially re-enacted his actions on videotape. Mr. Latimer also told police that he had considered giving Tracy an overdose of Valium, or “shooting her in the head”.
17        Mr. Latimer has been convicted of murder twice in this case. He was initially charged with first degree murder and convicted by a jury of second degree murder. The Court of Appeal for Saskatchewan upheld his conviction and life sentence with no eligibility for parole for 10 years, with Bayda C.J.S. dissenting on the sentence: R. v. Latimer (1995), 99 C.C.C. (3d) 481 (“Latimer (No. 1)”). The case was then appealed to this Court: [1997]1 S.C.R. 217. It turned out that the prosecutor had interfered with the jury selection process. The Crown conceded that a new trial could not be avoided. In the second trial, Mr. Latimer was again convicted of second degree murder, and it is from that conviction that this appeal arises.
18        During the second trial, two things occurred that, the appellant submits, resulted in an unfair trial. First, as counsel were about to make closing addresses to the jury, defence counsel asked the trial judge for a ruling on whether the jury could consider the defence of necessity. He wanted this ruling in advance of his closing submissions, since he planned to tailor his address to the judge’s ruling. The trial judge, however, refused to make any ruling until after hearing counsel’s closing addresses. Defence counsel made submissions, including some on the necessity defence. When counsel had concluded their addresses, the trial judge ruled that the jury was not entitled to consider necessity.
19        Second, some time after beginning their deliberations, the jury sent a number of written questions to the trial judge, one of which was: “Is there any possible way we can have input to a recommendation for sentencing?” The trial judge told the jury it was not to concern itself with the penalty. He said:

“... the penalty in any of these charges is not the concern of the jury. Your concern is, as I said, the guilt or innocence of the accused, and you must reach that’s your job, you reach that conclusion, and don’t concern yourself what the penalty might be. We say that because we don’t want you to be influenced one way or the other with what that penalty is. So it may be that later on, once you have reached a verdict, you we will have some discussions about that, but not at this stage of the game. You must just carry on and answer the question that was put to you, okay.”

The appellant highlights the underlined passage as misleading the jury.

20        After the jury returned with a guilty verdict, the trial judge explained the mandatory minimum sentence of life imprisonment, and asked the jury whether it had any recommendation as to whether Mr. Latimer’s ineligibility for parole should exceed the minimum period of 10 years. Some jury members appeared upset, according to the trial judge, and later sent a note asking him if they could recommend less than the 10-year minimum. The trial judge explained that the Criminal Code provided only for a recommendation over the 10-year minimum, but suggested that the jury could make any recommendation it liked. The jury recommended one year before parole eligibility. The trial judge then granted a constitutional exemption from the mandatory minimum sentence, sentencing the appellant to one year of imprisonment and one year on probation, to be spent confined to his farm.
21        The Court of Appeal for Saskatchewan affirmed Mr. Latimer’s conviction but reversed the sentence. It imposed the mandatory minimum sentence for second degree murder of life imprisonment without eligibility for parole for 10 years.

V. Analysis

A. Appeal Against Conviction

(1) The Availability of the Defence of Necessity

(a) The Three Requirements for the Defence of Necessity

26        We propose to set out the requirements for the defence of necessity first, before applying them to the facts of this appeal. The leading case on the defence of necessity is Perka v. The Queen, [1984] 2 S.C.R. 232. Dickson J., later C.J., outlined the rationale for the defence at p. 248:

“It rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not bestowed, but pardon is ....”
27        Dickson J. insisted that the defence of necessity be restricted to those rare cases in which true “involuntariness” is present. The defence, he held, must be “strictly controlled and scrupulously limited” (p. 250). It is well-established that the defence of necessity must be of limited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did Edmund Davies L.J., that necessity would “very easily become simply a mask for anarchy”: Southwark London Borough Council v. Williams, [1971] Ch. 734 (C.A.), at p. 746.
28        Perka outlined three elements that must be present for the defence of necessity. First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there must be proportionality between the harm inflicted and the harm avoided.
29        To begin, there must be an urgent situation of “clear and imminent peril”: Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at p. 678. In short, disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur. In Perka, Dickson J. expressed the requirement of imminent peril at p. 251: “At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable”. The Perka case, at p. 251, also offers the rationale for this requirement of immediate peril: “The requirement ... tests whether it was indeed unavoidable for the actor to act at all”. Where the situation of peril clearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril.
30        The second requirement for necessity is that there must be no reasonable legal alternative to disobeying the law. Perka proposed these questions, at pp. 251-52:

“Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law?  Was there a legal way out?” (emphasis in original).

If there was a reasonable legal alternative to breaking the law, there is no necessity. It may be noted that the requirement involves a realistic appreciation of the alternatives open to a person; the accused need not be placed in the last resort imaginable, but he must have no reasonable legal alternative. If an alternative to breaking the law exists, the defence of necessity on this aspect fails.

31        The third requirement is that there be proportionality between the harm inflicted and the harm avoided. The harm inflicted must not be disproportionate to the harm the accused sought to avoid. See Perka, per Dickson J., at p. 252:

“No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil. In such circumstances we expect the individual to bear the harm and refrain from acting illegally. If he cannot control himself we will not excuse him.&rdquo

Evaluating proportionality can be difficult. It may be easy to conclude that there is no proportionality in some cases, like the example given in Perka of the person who blows up a city to avoid breaking a finger. Where proportionality can quickly be dismissed, it makes sense for a trial judge to do so and rule out the defence of necessity before considering the other requirements for necessity. But most situations fall into a grey area that requires a difficult balancing of harms. In this regard, it should be noted that the requirement is not that one harm (the harm avoided) must always clearly outweigh the other (the harm inflicted). Rather, the two harms must, at a minimum, be of a comparable gravity. That is, the harm avoided must be either comparable to, or clearly greater than, the harm inflicted. As the Supreme Court of Victoria in Australia has put it, the harm inflicted “must not be out of proportion to the peril to be avoided”: R. v. Loughnan, [1981] V.R. 443, at p. 448.
32        Before applying the three requirements of the necessity defence to the facts of this case, we need to determine what test governs necessity. Is the standard objective or subjective?  A subjective test would be met if the person believed he or she was in imminent peril with no reasonable legal alternative to committing the offence. Conversely, an objective test would not assess what the accused believed; it would consider whether in fact the person was in peril with no reasonable legal alternative. A modified objective test falls somewhere between the two. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person. We conclude that, for two of the three requirements for the necessity defence, the test should be the modified objective test.
33        The first and second requirements imminent peril and no reasonable legal alternative must be evaluated on the modified objective standard described above. As expressed in Perka, necessity is rooted in an objective standard: “involuntariness is measured on the basis of society’s expectation of appropriate and normal resistance to pressure” (p. 259). We would add that it is appropriate, in evaluating the accused’s conduct, to take into account personal characteristics that legitimately affect what may be expected of that person. The approach taken in R. v. Hibbert, [1995] 2 S.C.R. 973, is instructive. Speaking for the Court, Lamer C.J. held, at para. 59, that:

“it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his or her ability to perceive the existence of alternative courses of action.”

While an accused’s perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused, those perceptions remain relevant only so long as they are  reasonable. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be a reasonable basis for the accused’s beliefs and actions, but it would be proper to take into account circumstances that legitimately affect the accused person’s ability to evaluate his situation. The test cannot be a subjective one, and the accused who argues that he perceived imminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given his circumstances and attributes. We leave aside for a case in which it arises the possibility that an honestly held but mistaken belief could ground a “mistake of fact” argument on the separate inquiry into mens rea.
34        The third requirement for the defence of necessity, proportionality, must be measured on an objective standard, as it would violate fundamental principles of the criminal law to do otherwise. Evaluating the nature of an act is fundamentally a determination reflecting society’s values as to what is appropriate and what represents a transgression. Some insight into this requirement is provided by George Fletcher, in a passage from Rethinking Criminal Law (1978), at p. 804. Fletcher spoke of the comparison between the harm inflicted and the harm avoided, and suggested that there was a threshold at which a person must be expected to suffer the harm rather than break the law. He continued:

“Determining this threshold is patently a matter of moral judgment about what we expect people to be able to resist in trying situations. A valuable aid in making that judgment is comparing the competing interests at stake and assessing the degree to which the actor inflicts harm beyond the benefit that accrues from his action.”

The evaluation of the seriousness of the harms must be objective. A subjective evaluation of the competing harms would, by definition, look at the matter from the perspective of the accused person who seeks to avoid harm, usually to himself. The proper perspective, however, is an objective one, since evaluating the gravity of the act is a matter of community standards infused with constitutional considerations (such as, in this case, the s. 15(1) equality rights of the disabled). We conclude that the proportionality requirement must be determined on a purely objective standard.

(b) The Application of the Requirements for Necessity in This Case

35        The inquiry here is not whether the defence of necessity should in fact excuse Mr. Latimer’s actions, but whether the jury should have been left to consider this defence. The correct test on that point is whether there is an air of reality to the defence. In R. v. Osolin, [1993] 4 S.C.R. 595, at p. 676, Cory J. stated:

“... a defence should not be put to the jury if a reasonable jury properly instructed would have been unable to acquit on the basis of the evidence tendered in support of that defence. On the other hand, if a reasonable jury properly instructed could acquit on the basis of the evidence tendered with regard to that defence, then it must be put to the jury. It is for the trial judge to decide whether the evidence is sufficient to warrant putting a defence to a jury as this is a question of law alone.”

The question is whether there is sufficient evidence that, if believed, would allow a reasonable jury properly charged and acting judicially to conclude that the defence applied and acquit the accused.

36        For the necessity defence, the trial judge must be satisfied that there is evidence sufficient to give an air of reality to each of the three requirements. If the trial judge concludes that there is no air of reality to any one of the three requirements, the defence of necessity should not be left to the jury.
37        In this case, there was no air of reality to the three requirements of necessity.
38        The first requirement is imminent peril. It is not met in this case. The appellant does not suggest he himself faced any peril; instead he identifies a peril to his daughter, stemming from her upcoming surgery which he perceived as a form of mutilation. Acute suffering can constitute imminent peril, but in this case there was nothing to her medical condition that placed Tracy in a dangerous situation where death was an alternative. Tracy was thought to be in pain before the surgery, and that pain was expected to continue, or increase, following the surgery. But that ongoing pain did not constitute an emergency in this case. To borrow the language of Edmund Davies L.J. in Southwark London Borough Council, supra, at p. 746, we are dealing not with an emergency but with “an obstinate and long-standing state of affairs”. Tracy’s proposed surgery did not pose an imminent threat to her life, nor did her medical condition. In fact, Tracy’s health might have improved had the Latimers not rejected the option of relying on a feeding tube. Tracy’s situation was not an emergency. The appellant can be reasonably expected to have understood that reality. There was no evidence of a legitimate psychological condition that rendered him unable to perceive that there was no imminent peril. The appellant argued that, for him, further surgery did amount to imminent peril. It was not reasonable for the appellant to form this belief, particularly when better pain management was available.
39        The second requirement for the necessity defence is that the accused had no reasonable legal alternative to breaking the law. In this case, there is no air of reality to the proposition that the appellant had no reasonable legal alternative to killing his daughter. He had at least one reasonable legal alternative: he could have struggled on, with what was unquestionably a difficult situation, by helping Tracy to live and by minimizing her pain as much as possible. The appellant might have done so by using a feeding tube to improve her health and allow her to take more effective pain medication, or he might have relied on the group home that Tracy stayed at just before her death. The appellant may well have thought the prospect of struggling on unbearably sad and demanding. It was a human response that this alternative was unappealing. But it was a reasonable legal alternative that the law requires a person to pursue before he can claim the defence of necessity. The appellant was aware of this alternative but rejected it.
40        The third requirement for the necessity defence is proportionality; it requires the trial judge to consider, as a question of law rather than fact, whether the harm avoided was proportionate to the harm inflicted. It is difficult, at the conceptual level, to imagine a circumstance in which the proportionality requirement could be met for a homicide. We leave open, if and until it arises, the question of whether the proportionality requirement could be met in a homicide situation. In England, the defence of necessity is probably not available for homicide: R. v. Howe, [1987] 1 A.C. 417 (H.L.), at pp. 453 and 429; Smith and Hogan, Criminal Law (9th ed. 1999), at pp. 249-51. The famous case of R. v. Dudley and Stephens (1884), 14 Q.B.D. 273, involving cannibalism on the high seas, is often cited as establishing the unavailability of the defence of necessity for homicide, although the case is not conclusive: see Card, Cross and Jones, Criminal Law (12th ed. 1992), at p. 352; Smith and Hogan, supra, at pp. 249 and 251. The Law Reform Commission of Canada has suggested the defence should not be available for a person who intentionally kills or seriously harms another person: Report on Recodifying Criminal Law (1987), at p. 36. American jurisdictions are divided on this question, with a number of them denying the necessity defence for murder: P. H. Robinson, Criminal Law Defenses (1984) , vol. 2, at pp. 63-65; see also United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842) (No. 15,383). The American Model Penal Code proposes that the defence of necessity would be available for homicide: American Law Institute, Model Penal Code and Commentaries (1985), at 3.02, pp. 14-15; see also W. R. LaFave and A. W. Scott, Substantive Criminal Law (1986), vol. 1, at p. 634.
41        Assuming for the sake of analysis only that necessity could provide a defence to homicide, there would have to be a harm that was seriously comparable in gravity to death (the harm inflicted). In this case, there was no risk of such harm. The “harm avoided” in the appellant’s situation was, compared to death, completely disproportionate. The harm inflicted in this case was ending a life; that harm was immeasurably more serious than the pain resulting from Tracy’s operation which Mr. Latimer sought to avoid. Killing a person in order to relieve the suffering produced by a medically manageable physical or mental condition is not a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition.
42        We conclude that there was no air of reality to any of the three requirements for necessity. As noted earlier, if the trial judge concludes that even one of the requirements had no air of reality, the defence should not be left to the jury. Here, the trial judge was correct to remove the defence from the jury. In considering the defence of necessity, we must remain aware of the need to respect the life, dignity and equality of all the individuals affected by the act in question. The fact that the victim in this case was disabled rather than able-bodied does not affect our conclusion that the three requirements for the defence of necessity had no air of reality here.…

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LRCC §§ 3(9) & 3(17)

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MPC § 3.02

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StGB § 34 (Necessity as Justification)


Chapter 14. Excuse

A.        Incapacity (“Exemption”)

            1. Insanity

                  a. Definition

 

R. v. Cooper
Supreme Court of Canada
[1980] 51 C.C.C. (2d) 129; [1980] 1 S.C.R. 1149

DICKSON J. (LASKIN C.J.C., BEETZ, ESTEY and MCINTYRE JJ. concurring):— Issues fundamental to the design and range of the “insanity defence” and to notions of responsibility in our criminal justice system are before the court in this appeal.

The case opens up the broad and difficult question of the obligation of a trial judge to charge on insanity in circumstances where an accused has a lengthy psychiatric history but the medical evidence is that he does not suffer from “disease of the mind”.

The appellant, Gary Albert Cooper, was charged with the murder of one Denise Hobbs, at the time an in-patient at the Hamilton Psychiatric Hospital. The appellant was an out-patient at the same institution. There was evidence that the appellant had been drinking during the day of 8th October 1975. That evening he arrived at a regularly scheduled dance held at a nearby church for patients of the hospital, and there met Denise Hobbs, with whom he was acquainted. At his invitation, the two left the dance to seek a bottle of pop and cigarettes. Ultimately, after an unsuccessful attempt at sexual intercourse the appellant choked the deceased. The cause of death was asphyxiation by strangulation.

At trial, counsel for the defence directed argument to raising a doubt on the issue of intent, and did not plead the “defence” of insanity. Nonetheless, the trial judge, Van Camp J., charged the jury on insanity, though in a manner vigorously challenged in this appeal. The jury found the appellant guilty of non-capital murder, and an appeal was dismissed without written reasons, Dubin J.A. dissenting. At a later date Dubin J.A. delivered lengthy reasons in dissent [40 C.C.C. (2d) 145].

Section 16 of the Criminal Code, R.S.C. 1970, c. C-34 {since amended}, does not set out a test of insanity, but rather sets out the criteria to be taken into account in determining criminal responsibility. The sections reads:

16.(1) No person shall be convicted of an offence in respect of an act or omission on his part while he was insane.
(2) For the purposes of this section a person is insane when he is in a state of natural imbecility or has disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.
(3) A person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused him to believe in the existence of a state of things that, if it existed, would have justified or excused his act or omission.
(4) Every one shall, until the contrary is proved, be presumed to be and to have been sane.”

The question raised by this appeal is whether there was evidence from which a properly charged jury could conclude, on a balance of probabilities, that the appellant had disease of the mind to an extent that rendered him incapable of appreciating the nature and quality of the act of which he was charged or of knowing that it was wrong. “Wrong” means legally wrong: Schwartz v. R., [1977] 1 S.C.R. 673, 34 C.R.N.S. 138, 29 C.C.C. (2d) 1, 67 D.L.R. (3d) 716, 8 N.R. 585. Before turning to the evidence adduced at trial, it will be convenient to consider this question at some length, for it raises two distinct legal issues fundamental to our defence of insanity under s. 16(2). First, the meaning to be ascribed to the phrase “disease of the mind” and, second, the interpretation to be given the words “incapable of appreciating the nature and quality of an act”.

1. Disease Of The Mind

Let me say by way of commencement that, to date, the phrase “disease of the mind” has proven intractable and has eluded satisfactory definition by both medical and legal disciplines. It is not a term of art in either law or psychiatry. Indeed, Glanville Williams (Textbook of Criminal Law (1978), p. 592) says that the phrase is no longer in medical use. “It is a mere working concept, a mere abstraction, like sin” (Wily and Stallworthy, Mental Abnormality and the Law (1962), p. 20). Although the term expresses a legal concept, and a finding is made according to a legal test, psychiatric knowledge is directly linked to the legal conclusion, for medical testimony forms part of the evidence on which the trier of fact must reach its decision. But medical and legal perspectives differ. The divergence in the two philosophies is identified by Jerome Hall in “Psychiatry and Criminal Responsibility” (1956), 65 Yale L.J. 761 at 764:

“…we can easily perceive the perspective that psychiatry, and especially psycho-analysis, draws from them [the sciences]. Since it purports to be rigorously scientific, it takes a determinist position. Its view of human nature is expressed in terms of drives and dispositions which, like mechanical forces, operate in accordance with the universal laws of causation.…

Its view [the criminal law] of human nature asserts the reality of free choice and rejects the thesis that the conduct of normal adults is a mere expression of imperious psychological necessity.”

Even medical experts are not given to agreement when asked to define “disease of the mind” . In “The Concept of Mental Disease in Criminal Law Insanity Tests” (1965-66), 33 University of Chicago L. Rev. 229, H. Fingarette illustrates the diversity in approach taken by psychiatric authorities in the quest for a definition of mental disease. He cites the following medical views at p. 232-33:

“(1) There is no such medical entity as mental disease, or we would do well not to use the phrase.
(2) Mental disease is psychosis but not neurosis.
(3) Mental disease is any significant and substantial mental disturbance, or is any condition at all which is authoritatively dealt with by the psychiatrist or physician treating mental conditions.
(4) Mental disease means substantial social maladaptation or incompetence or both as judged by legal criteria.
(5) Mental disease is the failure to realize one’s nature capacities or true self.”

He observes at p. 236 that, in spite of the inability of medical science to assist the law in reaching or agreeing upon a precise definition, the law is responsive to its different needs:

“Nevertheless, it is crucial for our purposes to realize that the whole affair is initiated for legal purposes, that the definition is authoritatively formulated by lawmakers, and that the fundamental grounds justifying the enterprise are largely non-medical.”

In R. v. Kemp, [1957] 1 Q.B. 339, 40 Cr. App. R. 121, [1956] 3 All E.R. 249, an oft-cited decision, the primary issue was whether arteriosclerosis came within the meaning of “disease of the mind”. Devlin J. agreed that there was an absence of medical opinion as to the categories of malfunction properly to be termed “diseases of the mind”, and rejected the idea that, for legal purposes, a distinction should be made between diseases physical and mental in origin. In his view, arteriosclerosis is a disease of the mind and can provide a defence to a criminal charge. He reviewed the relationship between medical evidence and the legal conclusions to be drawn therefrom (p. 406):

“Doctors’ personal views, of course, are not binding on me. I have to interpret the rules according to the ordinary principles of interpretation, but I derive help from their interpretations inasmuch as they illustrate the nature of the disease and the matters which from the medical point of view have to be considered in determining whether or not it is a disease of the mind.”

In Bratty v. A .G. Northern Ireland, [1963] A.C. 386, 46 Cr. App. R. 1, [1961] 3 All E.R. 523 ( H.L.), Lord Denning agreed that the question of whether an accused suffers from a disease of the mind is properly resolved by the judge. He acknowledged that “The major mental diseases, which the doctors call psychoses…are clearly diseases of the mind” and that “any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind”(p. 534).

In the Report of the Royal Commission on Capital Punishment, England (1949-1953), one finds a useful contribution to the discussion of what is meant by the phrases “mental disease” and “disease of the mind”. The report reads at p. 73:

“For us, therefore, mental disease is only one part of mental disorders of all kinds, and broadly corresponds to what are often called major diseases of the mind, or psychoses; although it may also arise in cases, such as those of epilepsy and cerebral tumour, which are not ordinarily regarded by doctors as psychotic. Among the psychoses are the conditions known as schizophrenia, manic-depressive psychoses, and organic disease of the brain. Other conditions, not included under this term, are the minor forms of mental disorder—the neurotic reactions, such as neurasthenia, anxiety states and hysteria—and the disorders of development of the personality—psychopathic personality. We are aware that this classification will not be unconditionally endorsed by all psychiatrists, and that some would prefer to include under the term ‘disease of the mind’ even the minor abnormalities we have referred to. We believe, however, that the nature of the distinction we have drawn will be clear to them, and will be acceptable to them as the basis for a discussion of criminal responsibility.”

The classification advanced was arbitrary, and was recognized as being one which would not be acceptable to all psychiatrists. The passage cited makes it abundantly clear that “disease of the mind” can mean different things to different psychiatrists. To some, for example, it may include such things as neurasthenia, anxiety states, hysteria and psychopathic personality. Others would exclude such disorders from the definition. It is equally manifest that, in law, some mental states may be recognized as possibly being within the definition, although, medically speaking, a psychiatrist might not so regard them. Hardening of the arteries is one example (R. v. Kemp, supra); psychomotor epilepsy is another (R. v. O’Brien, [1966] 3 C.C.C. 288, 56 D.L.R. (2d) 65 (N.B.C.A.)). Thus, to pose to a psychiatrist the bald question “Is D suffering from a disease of the mind?” and require a bald “Yes” or “No” response really tells nothing, because one is left in the dark as to the legal criteria applied.

Support for a broad and liberal legal construction of the words “disease of the mind” will be found in the writings of the renowned jurist Sir Owen Dixon, formerly Chief Justice of Australia, who wrote in “A Legacy of Hadfield, M’Naghten and Maclean” (1957), 31 A.L.J. 255 at 260:

“The reason why it is required that the defect of reason should be ‘from disease of the mind’, in the classic phrase used by Sir Nicholas Tindal, seems to me no more than to exclude drunkenness, conditions of intense passion and other transient states attributable either to the fault or to the nature of man. In the advice delivered by Sir Nicholas Tindal no doubt the words ‘disease of the mind’ were chosen because it was considered that they had the widest possible meaning. He would hardly have supposed it possible that the expression would be treated as one containing words of the law to be weighed like diamonds. l have taken it to include, as well as all forms of physical or material change or deterioration, every recognizable disorder or derangement of the understanding whether or not its nature, in our present state of knowledge, is capable of explanation or determination.” (The italics are mine.)

To the learned authors of Smith and Hogan, Criminal Law, 4th ed. (1978), p. 164: “It seems that any disease which produces a malfunction is a disease of the mind.”

Recently, in Canada, the Ontario Court of Appeal contributed judicial direction in this area of the law in the cases of R. v. Rabey (1977), 17 O.R. (2d) 1, 40 C.R.N.S. 46,37 C.C.C. (2d) 461,1 L.M.Q. 280, 79 D.L.R. (3d) 414, and R. v. Simpson (1977), 16 O.R. (2d) 129, 35 C.C.C. (2d) 337, both of which were decided subsequent to the trial of the appellant. Judgment in Rabey postdates the decision of the Court of Appeal in the case at bar, and is presently on appeal to this court on an issue unrelated to those raised herein. Martin J.A., who wrote for the court in both Rabey and Simpson, was not among the members of the court who heard the Cooper appeal.

Simpson has greater significance for the present appeal. There, the accused appealed the finding of not guilty by reason of insanity on two charges of attempted murder. The facts, which indicate two incidents of stabbing, are not remarkable. As framed by Martin J.A., the issue was whether a personality disorder is a disease of the mind within the meaning of s. 16 of the Code. He held that, notwithstanding the psychiatric evidence, the question raised must be resolved as a question of law. But the legal position, as I understand it, is properly expressed in the following passage (pp. 349-50):

“The term ‘disease of the mind’ is a legal concept, although it includes a medical component, and what is meant by that term is a question of law for the Judge…It is the function of the psychiatrist to describe the accused’s mental condition and how it is considered from the medical point of view. It is for the Judge to decide whether the condition described is comprehended by the term ‘disease of the mind’.”

As a matter of practice, the trial judge can permit the psychiatrist to be asked directly whether or not the condition in question constitutes a disease of the mind. Concerning the controversy over the classification of a “psychopathic personality”, Martin J.A. found implicit recognition in Canadian and British authorities for the proposition that such a disorder can constitute a disease.

The general principles, not in issue on the further appeal to this court, were reiterated by Martin J.A. in R. v. Rabey. Disease of the mind is a legal term. It is within the province of the judge to determine what mental conditions are within the meaning of that phrase and whether there is any evidence that an accused suffers from an abnormal mental condition comprehended by that term. More importantly, he held that, if there is any evidence that the accused did suffer from such a disease, in legal terms, the question of fact must be left with the jury.

In summary, one might say that, in a legal sense, “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. In order to support a defence of insanity, the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.

Underlying all of this discussion is the concept of responsibility and the notion that an accused is not legally responsible for acts resulting from mental disease or mental defect. The principle was expressed long ago in Hawkins, Pleas of the Crown, 2nd ed. (1724), vol. 1, where it is said (p. 1):

“The guilt of offending against any law whatsoever, necessarily supposing a wilful disobedience, can never justly be imputed to those who are either incapable of understanding it,  or of conforming themselves to it.”

2. Appreciate

In contrast to the position in England under the M’Naghten Rules, where the words used are “knows the nature and quality of his act”, s. 16 of the Code uses the phrase “appreciating the nature and quality of an act or omission”. The two are not synonymous. The draftsman of the Code, as originally enacted, made a deliberate change in language from the common law rule in order to broaden the legal and medical considerations bearing upon the mental state of the accused and to make it clear that cognition was not to be the sole criterion. Emotional as well as intellectual awareness of the significance of the conduct is in issue. The Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases (McRuer Report) (1956), contains a useful discussion on the point (p. 12):

The word ‘appreciating’, not being a word that is synonymous with ‘knowing’, requires far-reaching legal and medical consideration when discussing Canadian law. It had its origin in the Stephen Draft Code. Not infrequently judicial reference is made to the New Oxford Dictionary for the definition of words used in Canadian statutes. The New Oxford Dictionary gives five different uses of the word ‘appreciate’, depending on the context The one applicable to this statute is:

“‘2. To estimate aright, to perceive the full force of.
b. esp. to be sensitive to, or sensible of, any delicate impression or distinction. Until the truth of anything…be appreciated, its error, if any, cannot be detected.”

An examination of the civil law of England and Canada shows that there is an important difference between ‘know’ or ‘knowledge’ on the one hand and ‘appreciate’ or ‘appreciation’ on the other when used and applied to a given set of circumstances. This is best illustrated by the principles of law underlying those cases in which the maxim volenti non fit injuria is involved. There is a clear distinction between mere knowledge of the risk and appreciation of both the risk and the danger.”

To “know” the nature and quality of an act may mean merely to be aware of the physical act, while to “appreciate” may involve estimation and understanding of the consequences of that act. In the case of the appellant, as an example, in using his hands to choke the deceased he may well have known the nature and quality of that physical act of choking. It is entirely different to suggest, however, that in performing the physical act of choking he was able to appreciate its nature and quality, in the sense of being aware that it could lead to or result in her death. In the opinion of the medical expert who testified at the trial, the appellant could have been capable of intending bodily harm and of choking the girl, but not of having intended her death.

Our Code postulates an independent test, requiring a level of understanding of the act, which is more than mere knowledge that it is taking place; in short, a capacity to apprehend the nature of the act, and its consequences. The position in law is well expressed in the McRuer Report at p. 12:

Under the Canadian statute law a disease of the mind that renders the accused person incapable of an appreciation of the nature and quality of the act must necessarily involve more than mere knowledge that the act is being committed; there must be an appreciation of the factors involved in the act and a mental capacity to measure and foresee the consequences of the violent conduct.

It should be noted that the issue of appreciation of the nature and quality of the act was not before this court in Schwartz v. R., supra. The sole issue was the meaning of the word “wrong”. The decision in Schwartz should not be taken as authority for the proposition that “appreciating” the nature and quality of an act is synonymous with “knowing” the physical character of that act.

The test proposed in the McRuer Report, which I would adopt (save for deletion of the “fully” in the fourth line) is this (p. 13):

“The true test necessarily is, was the accused person at the very time of the offence—not before or after, but at the moment of the offence—by reason of disease of the mind, unable fully to appreciate not only the nature of the act but the natural consequences that would flow from it? In other words, was the accused person, by reason of disease of the mind, deprived of the mental capacity to foresee and measure the consequences of the act?”

The legally relevant time is the time when the act was committed.

In R. v. O’Brien, supra, Ritchie J.A. referred to the McRuer Report and stated at pp. 301-302:

“If an accused person is to be deprived of the protection of s. 16, he must, at the time of committing the offence, have had an appreciation of the factors involved in his act and the mental capacity to measure and foresee the consequences of it. “

In the Simpson decision, supra, Martin J.A. offered the view that s. 16(2) exempts from liability an accused who, due to a disease of the mind, has no real understanding of the nature, character and consequences of the act at the time of its commission. I agree. With respect, I accept the view that the first branch of the test, in employing the word “appreciates”, imports an additional requirement to mere knowledge of the physical quality of the act. The requirement, unique to Canada, is that of perception, an ability to perceive the consequences, impact and results of a physical act. An accused may be aware of the physical character of his action (i.e., in choking) without necessarily having the capacity to appreciate that, in nature and quality, that act will result in the death of a human being. This is simply a restatement, specific to the defence of insanity, of the principle that mens rea, or intention as to the consequences of an act, is a  requisite element in the commission of a crime.…

Conclusions

In my opinion, there was evidence sufficient to require the judge to fully instruct the jury on the issue of insanity. [This he did not do.] I would allow the appeal and order a new trial.

 

R. v. Kjeldsen
Supreme Court of Canada
[1981] 131 D.L.R. (3d) 121; [1981] 2 S.C.R. 617

The judgment of the court was delivered by McINTYRE J.:—
…I find it helpful to refer to the words of Martin J.A.,speaking for the Ontario Court of Appeal, in R. v. Simpson (1977), 35 C.C.C. (2d) 337 at p. 355,

Emotional disturbance caused by disease of the mind may be so severe as to deprive the accused of the use of his understanding at the time of the act rendering him incapable of appreciating the nature and quality of the act or of knowing that it was wrong, and thus exempting him from liability under s. 16(2) of the Code: see Reference re Regina v. Gorecki (No. 2) (a judgment of this Court released on September 14, 1976, not yet reported [since reported 32 C.C.C. (2d) 135, 14 O.R. (2d) 218]). I do not, however, read the psychiatric evidence to be that the accused was by reason of emotional turmoil produced by disease of the mind incapable of understanding or realizing what he was doing, but rather that he lacked normal emotions and was therefore incapable of experiencing normal feelings concerning the acts, assuming he committed them.

While I am of the view that s. 16(2) exempts from liability an accused who by reason of disease of the mind has no real understanding of the nature, character and consequences of the act at the time of its commission, I do not think the exemption provided by the section extends to one who has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems from “disease of the mind”. Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people: see Willgoss v. The Queen (1960), 105 C.L.R. 295; R. v. Leech (1972), 10 C.C.C. (2d) 149, 21 C.R.N.S. 1, [1973] 1 W.W.R. 744; R. v. Craig (1974), 22 C.C.C. (2d) 212, [1975] 2 W.W.R. 314 [affirmed 28 C.C.C. (2d) 311]. No doubt the absence of such feelings is a common characteristic of many persons who engage in repeated and serious criminal conduct.

 

R. v. Abbey
Supreme Court of Canada
[1982] 138 D.L.R. (3d) 202; [1982] 2 S.C.R. 24

The judgment of the court was delivered by DICKSON J.:—
…As the court observed in Cooper, supra [(1980), 51 C.C.C. (2d) 129], the requirement that the accused be able to perceive the consequences of a physical act is a restatement, specific to the defence of insanity, of the principle of mens rea, or intention as to the consequences of an act, as a requisite element in the commission of a crime. The mental element must be proved with respect to all circumstances, and consequences, that form part of the actus reus. As the Crown in this case correctly points out, “while punishment may be a result of the commission of a criminal act it is not an element of the crime itself”. A delusion which renders an accused “incapable of appreciating the nature and quality of his act” goes to the mens rea of the offence and brings into operation the “first arm” of s. 16(2): he is not guilty by reason of insanity. A delusion which renders an accused incapable of appreciating that the penal sanctions attaching to the commission of the crime are applicable to him does not go to the mens rea of the offence, does not render him incapable of appreciating the nature and quality of the act, and does not bring into operation the “first arm” of the insanity defence.

Abbey was charged with importing and trafficking in cocaine. There is no dispute as to the fact that he carried cocaine into the country. In his statement to police, it was his admitted intention to import cocaine for the purposes of trafficking. In other words, Abbey appreciated that the actus reus of each of the offences charged was being committed. Both the psychiatrist called for the defence, and the psychiatrist who testified on behalf of the Crown, stated that Abbey appreciated the nature and quality of his act. …

The judge erred, in my view, in going on to say that a failure to appreciate the penal sanctions (“consequences of punishment”) brought the accused within the ambit of the “first arm” of the insanity defence of s. 16(2).

The second arm of s. 16(2)

Should the question of “personal penal consequences” be relevant at all, it is more appropriately discussed within the context of the second arm of s. 16(2), i.e., “knowing that an act is wrong”. Glanville Williams in his Criminal Law, The General Part, at p. 478 says (citing R. v. Codere, supra, at p. 27):

It has been determined that this phrase [nature and quality] refers to the physical character of the act, not its legal quality; legal right and wrong are cared for by the second question.

This court having decided in Schwartz v. The Queen, supra, that “wrong” means according to law, and it being established that Abbey knew his act was “wrong”, his inability to “appreciate” the penal consequences is really irrelevant to the question of legal insanity. There seems to be no doubt on the evidence, and on the judge’s findings, that Abbey knew that he was doing an act forbidden by law.

With respect, the trial judge homogenized the first and second arms of s. 16(2), collapsing the one into the other in, for example, the following passage from his judgment:

As I understand the evidence and the submission of counsel, the accused had the capacity to appreciate the nature of the act of importing and of possessing the cocaine. He also had the capacity to appreciate the immediate consequences of those acts. That is to say that they were illegal; that he should not commit them overtly . . .

The second arm of s. 16(2) is concerned with cognitive capabilities, with knowledge, and not with appreciation of consequences. Section 16(2) speaks in terms of knowledge of wrongness, not appreciation of wrongness. One must, I think, draw a distinction between what might be termed “result” crimes and what might be termed “knowledge” crimes. In respect of the former it is correct to speak of appreciation of consequences. The capacity to appreciate the nature and quality of his act refers to the physical character of the act. It requires both an appreciation of the factors involved, and sufficient mental capacity to measure and foresee the consequences of the conduct.

With respect, however, to the second arm of s. 16(2), knowledge that it is wrong, Martland J. set out the test in the Schwartz case (at p. 11 C.C.C., p. 726 D.L.R., p. 701 S.C.R.):

In brief, it is my opinion that the effect of s. 16(2) is to provide protection to a person suffering from disease of the mind who has committed a crime if, in committing the crime, he did not appreciate what he was doing, or, if he did have that appreciation, he did not know that he was committing a crime.

In a note on Schwartz v. The Queen, supra, entitled “Section 16 and Wrong” (1975-76), 18 Crim. L.Q. 413, Professor Mewett submits that the question that ought to be asked is (at p. 415) “whether the accused, because of a disease of the mind (first hurdle) was rendered incapable (second hurdle) of knowing that this act was something that he ought not to do (third hurdle)”. If he was capable of knowing that an act was contrary to law, and that he ought not to do an act contrary to law, then, in the opinion of Professor Mewett, the defence should not apply.

When one is considering the legal aspects of a crime such as the importation of a narcotic the principal inquiry should be directed not to appreciation of physical consequences but to knowledge of wrongness. The trial judge said “This man knew it was a crime, knew there was penalty, but by delusion believed himself protected”. Counsel for Abbey said in argument that he had to accept the fact that he could not bring Abbey’s state of mind into the second half of s. 16(2). On these findings, in my opinion, the defence of insanity was not open to Abbey.

I am of the view that the trial judge erred in law in holding that a person who by reason of disease of the mind does not “appreciate” the penal consequences of his actions is insane within the meaning of s. 16(2) of the Criminal Code. …

Appeal allowed; new trial ordered.

 

R. v. Kirkby (1985)
21 C.C.C. (3d) 31
Supreme Court of Ontario - Court of Appeal

The judgment of the Court delivered by
MARTIN J.A.:— The appellant was tried on an indictment charging him with having on or about September 4, 1982 committed first degree murder on the person of David Murray. The jury found the appellant guilty as charged and he now appeals against his conviction.

[“[T]he appellant had a delusional belief that he was a special type of person, a "biker" or a member of the Mafia and therefore entitled to a certain level of respect, which he had not received from David Murray. He felt that it was important to punish David for his disrespect. The appellant held these beliefs as real. He believed that as a special person and a person of some stature, it was appropriate to punish David for his disrespect and that David would have to pay with his life. The appellant, under the influence of his delusional belief, considered that he was justified in executing someone who had been disrespectful.”]
….
I agree with the trial judge that even if there was evidence that the appellant suffered from that delusion it clearly did not render the appellant incapable of appreciating the nature and quality of his act or of knowing that it was legally wrong.

It must now be taken to be settled that disease of the mind rendering the accused incapable of appreciating the nature and quality of an act or omission which exempts from criminal responsibility under the first arm of s. 16(2) refers to incapacity to appreciate the physical nature of the act and its physical consequences: see R. v. Abbey, supra, at pp. 402-403.

I wish, however, to guard myself from being thought to hold that in every case where an accused knows, for example, that he is shooting a human being and that the shooting will cause death that the accused is capable of appreciating the nature and quality of the act. Some delusions may cause the act of killing to assume in the accused’s mind an entirely different character. For example, if an accused suffers from a delusion that he is an absolute monarch executing a subject for high treason, the act of killing in his mind has assumed a character different from murder. In such a case the accused would be exempt from liability under the second arm of s. 16(2) because he would believe he was acting legally, but, in my view, he would also be exempt under the first arm. It might be that a person suffering from paranoid schizophrenia who, under the delusion that his neighbour is killing him and his family with “thought waves”, buys a gun and kills the neighbour is exempt from liability under the first arm of s. 16(2). The killing in the accused’s mind is transformed by the delusion from murder to a killing in self-defence or to protect his family. It is unlikely that a person subject to a delusion of such intensity would be able at the time of the killing to apply his mind to the consideration of the legal wrongfulness of the act, and hence would also be exempt under the second arm of s. 16(2). It is unnecessary to further explore the subject of such unusual delusions, because even if the appellant was under the delusion that he was a biker and a member of the Mafia and that the deceased must suffer death for his failure to accord the appellant the proper respect, the evidence is clear that the appellant appreciated the nature and quality of the act of killing the deceased and that it was against the law. The delusion did not have the effect of causing the act of killing to take on a different character, in the appellant’s mind, to what it actually was. It is clear on all the evidence that the appellant knew he was killing the deceased and that it was legally wrong for him to do so.

 

R. v. Schwartz
Supreme Court of Canada
[1976] 29 C.C.C. (2d) 1; [1977] 1 S.C.R. 673

MARTLAND J. (with whom JUDSON, RITCHIE, PIGEON and DE GRANDPRÉ JJ. concurred):—This is an appeal, by leave from the unanimous judgment of the Court of Appeal for British Columbia which had dismissed the appellant’s appeal from his conviction for the non-capital murder of two persons. Leave to appeal was granted in respect of the following question of law:

Did the Court of Appeal err in holding that there had been no error in law in the direction given to the jury as to the meaning of the word “wrong,” as used in s. 16, subs. (2) {s. 16(1)}, of the Criminal Code, in defining insanity?


When instructing the jury in respect of the defence of insanity, the learned trial Judge said:

Now, the test of insanity which you must apply in this case is twofold. You first ask yourselves whether at the time of the offence the Accused knew the nature and the quality of the acts he was doing and if as a result of disease of the mind, he did not, that establishes insanity for the purpose of this trial. If, however, you find that the Accused did in fact cause the deaths of Barbara Jean Blum and Edward Julius Mernickle by unlawful acts and that he knew the nature and quality of his acts, you must then go further and you must decide whether he knew what he was doing was wrong; and, if you find that as a result of a disease of the mind he did not know what he was doing wrong, then that establishes insanity. When I use the word “wrong” that means wrong according to law, wrong in the sense the act was forbidden by law.

It is the contention of the appellant that the learned trial Judge was in error in saying that “wrong” means wrong according to law, wrong in the sense that the act was forbidden by law. The submission is that the word “wrong” as used in s. 16(2) means contrary to the ordinary standard of reasonable men. It is argued that, even if an accused person, relying upon the defence of insanity, knew that his act was legally wrong, he would still be within the definition of insanity if he believed his action to be right according to the ordinary standard of reasonable men.

[Some of the evidence is then examined.]
In the result, the jury had before it the expert evidence of two psychiatrists, one of whom had observed the appellant over a period of two months, whose opinion was that the appellant did not have a disease of the mind, and that of two general practitioners based upon what they observed shortly after the appellant’s arrest, and, thus, shortly after he had committed two murders, that he was psychotic and therefore would not appreciate the nature and quality of his acts. The jury was properly told by the trial Judge that if, as a result of disease of the mind, the appellant, at the time he committed the offences, did not know the nature and quality of the acts he was doing, that would establish insanity for the purpose of the trial. The jury’s verdict establishes that it did not accept the opinion of the general practitioners as against that of the psychiatrists.

There is no evidence in the case which relates to the issue as to whether, at the time the offences were committed, the appellant, owing to disease of the mind, though appreciating the nature and quality of his acts, did not know that what he was doing was morally, or legally, wrong. That issue never arose on the facts of this case. There was no evidence to meet the onus imposed on the appellant by s. 16(4) to establish his insanity within the latter part of the definition in s. 16(2) no matter how the word “wrong” be interpreted. This being so, the portion of the charge to which objection is taken was irrelevant, and, therefore, even if it were erroneous, this would be a case in which the provisions of s. 613(1)(b)(iii) should be applied.

In my opinion, the Judge’s charge upon the meaning of the word “wrong” in s. 16(2) was not erroneous. I propose to deal with this issue only because the matter was fully argued before us, and it would be desirable that an expression of opinion on this point by this Court should be made. …

The High Court of Australia refused to follow the Windle case in Stapleton v. The Queen (1952),86 C.L.R.358, and held that, in applying the second branch of the legal test of insanity, as defined in M’Naghten’s case, the question is whether the accused knew that his act was wrong according to the ordinary principles of reasonable men, and not whether he knew it was wrong as being contrary to law. This view of the law, which is stated in the reasons of Dixon, C.J., for the Court, is the same as the view which he had expressed, as a trial Judge, in his charge to the jury, almost 20 years earlier, in R. v. Porter (1933), 55 C.L.R. 182. …

McRuer, C.J.H.C., in R. v. O, 3 Crim.L.Q. 151 at p. 153 (1959), instructed a jury respecting the defence of insanity in a manner similar to the charge in the Porter case when he said:

. . . if on a mere preponderance of probability, based on the evidence taken as a whole, you come to the conclusion that the accused was labouring under disease of the mind to such an extent that she was incapable of knowing that the act was wrong—and by that I do not mean merely legally wrong, but wrong in the sense that it was something that she ought not to do and for which she would be condemned in the eyes of her right-thinking fellow men—you should find her not guilty on account of insanity.

In determining the meaning of the word “wrong” in s. 16(2) it is important to remember that this subsection only becomes operative if, previously, it has been proved beyond a reasonable doubt that the accused person has committed a crime; i.e., has been guilty of some criminal act with the requisite criminal intent. It is at that point that he may seek the protection against conviction afforded by s. 16(1) on the ground that the offence was committed while he was insane. But mere proof of insanity alone is not enough. He is only to be considered insane for the purposes of that subsection if he has a disease of the mind to an extent that renders him incapable of:

(a) appreciating the nature and quality of his act; or
(b) knowing that such act was wrong.

The Codere case, in my opinion, correctly decided that “nature and quality” dealt with the physical character of the act. If, therefore, a person who has committed a crime did not, by reason of disease of the mind, know what he was doing, he is not to be convicted, because it really was not his act.

The second and alternative portion of the definition is dealing not with the criminal act, but with the criminal intent. Although he has committed a crime, and understood what he was doing, the accused is still protected from conviction if, because of mental disease, he did not know that by his act he was committing a crime.

In brief, it is my opinion that the effect of s. 16(2) is to provide protection to a person suffering from disease of the mind who has committed a crime if, in committing the crime, he did not appreciate what he was doing, or, if he did have that appreciation, he did not know that he was committing a crime.

The test as to knowledge of “wrong” which is stated by Dixon C.J. in the Stapleton case is as to whether the accused knew that his act was wrong according to the ordinary principles of reasonable men. I find it difficult to see how this test really differs from the test as to whether he knew he was committing a crime. Surely, according to the ordinary principles of reasonable men, it is wrong to commit a crime. This must be so in relation to the crime of murder. If there is a difference between these tests, and it could be contended that the commission of a particular crime, though known to be illegal, was considered to be normally justifiable in the opinion of ordinary men, I do not see why a person who committed a crime in such circumstances should be protected from conviction if suffering from disease of the mind, and not protected if he committed the crime when sane.

In Porter and in Stapleton, Dixon C.J. went further than testing “wrong” by the application of the principles of ordinary men, and held that, given a disease of the mind, it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. In my opinion, this is not a test of insanity contemplated by s. 16(2). It is, essentially, a subjective test. In my opinion, the test provided in s. 16(2) is not as to whether the accused, by reason of mental disease, could or could not calmly consider whether or not the crime which he committed was morally wrong. He is not to be considered as insane within s. 16(2) if he knew what he was doing and also knew that he was committing a criminal act.

For the foregoing reasons I would dismiss the appeal.

DICKSON J. (with whom LASKIN C.J., SPENCE and BEETZ JJ. concurred), dissenting:— 

… Counsel for the appellant advised the Court that he had prepared his factum and would present oral argument relying upon the concession made by counsel for the Crown that the accused was entitled to a new trial if this Court should hold there was error in charging the jury on the basis that “wrong” meant “contrary to law.” Counsel for the Crown confirmed he had made such concession.

As the consequence of a successful insanity defence is not freedom but an indeterminate detention in a mental hospital, this defence is unlikely to be raised if any less threatening alternative is available. Thus, the defence is raised infrequently and usually when the death sentence or life imprisonment is in the offing. The infrequency of the defence does not, however, serve to diminish the importance of mental disorder as it affects criminal responsibility.

The word “wrong” is ambiguous. It may mean either “illegal” or “morally wrong.” The extended debate over whether “wrong” means legally or morally wrong has given rise to two conflicting lines of authority. The present English authorities, at odds with many earlier cases, hold the view that wrong means contrary to law. Australian, and a number of American cases, hold the opposite view. Canadian cases go in both directions. [a list of cases is provided]

Just as there is a lack of unanimity on the meaning to be ascribed to the word “wrong,” so is there variance of opinion on whether the insanity defence is extended or narrowed by departing from the view that “wrong” means contrary to law. In most cases, it will make little difference, for in serious crime the legal standard and society’s moral judgment are not likely to differ. It would be a rare occasion on which an accused would consider that, in killing, his act was legally wrong but right according to the ordinary standards of reasonable men. “Moral wrong” is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong. Society’s moral judgment may well be identical with the legal standard, but such is not inevitably the case. An offender may know that it is legally wrong to kill but do so in the belief that it is in response to a divine order and therefore not morally wrong. The legal and the moral do not always coincide. …

Although our immediate concern is with the word wrong, the wording of s. 16(2) makes it clear that the section is primarily concerned with mental disease and incapacity resulting therefrom. It is the thinking process of the accused, as opposed to his actual knowledge of wrongness, that should be the focus of inquiry in the defence of insanity. The question is not whether the accused knew that the act was wrong but whether he was capable of knowing it was wrong. Has disease of the mind so affected the capacity of the accused to make a moral choice that he is unable to discern between what is right and what is wrong? Attention must then be directed to the last word of s. 16(2), the word “wrong.” The inquiry must be as to whether Parliament intended the word to be construed in what one might call the popular sense of “wrong” or in the sense of “contrary to law” or “illegal.” Is there any compelling reason for giving the word “wrong” other than the common and ordinary meaning of the word?

Before considering the authorities it would be well, I think to have regard to the internal structure of the Criminal Code. Accepted legal authorities respecting statutory construction confirm the validity of construing one part of a statute by reference to another part of the same statute. If Parliament had intended “wrong” to mean “contrary to law,” one might expect use of the word “unlawful,” which is used in sections of the Code dealing with assembly (s. 64), riots (s. 65), drilling (s. 71), and solemnization of marriage (s. 258) or, possibly the word “illegal,” which is used in s. 215(4) of the Code dealing with arrests.

The French version of s. 16(2) uses the word “mauvais” for the word “wrong” appearing in the English version. Harrap’s New Shorter French and English Dictionary contains a rather lengthy definition of “mauvais” which commences with “evil, ill (thought, omen, etc.); bad, wicked (person)” and continues through many uses of the word, none of which suggest the sense of “contrary to law.”

If one turns then to s. 13 of the Code dealing with the criminal responsibility of children between the ages of seven and 13 years, one finds a provision the structure of which parallels s. 16(2). It reads:

13. No person shall be convicted of an offence in respect of an act or omission on his part while he was seven years of age or more, but under the age of fourteen years, unless he was competent to know the nature and consequences of his conduct and to appreciate that it was wrong.

A child of seven years of age might know the difference between “right” and “wrong” in a moral sense but it seems highly unlikely that a child of tender years would think in terms of “contrary to law.” The effect of s. 13 is to relieve certain children of criminal responsibility because they, like the insane, do not have the capacity to comprehend the moral implications of their harmful acts. …

The M’Naghten Judges said that a person is punishable “if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand Your Lordships to mean the law of the land” [p. 209].

If the Judges had stopped there, we would at least know their attitude to the question whether “wrong” meant moral or legal wrong. The second paragraph in the opinion reads, however (p. 210):

If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if, that act was at the same time contrary to the law of the land, he is punishable.

The concluding sentence draws a clear distinction between (i) knowledge that the act was contrary to the law of the land, and (ii) knowledge that the act was one which the accused knew he ought not to do. …

With the utmost respect, I have come to the conclusion, as did the High Court of Australia, that Windle was wrongly decided. The English law antedating Windle would suggest that if an accused believes his act to be right according to the ordinary standards of reasonable men he is entitled to be acquitted, even though he knew it to be legally wrong. As stated in Glanville Williams, Criminal Law, 2nd ed. (1961), p. 492: “The earlier authorities had gone on moral wrong.” …

The Stapleton formulation would properly exempt a mother who, though aware that killing is contrary to the law of the land, in religious ecstasy kills her child in the insane belief the voice of God has called upon her to offer a sacrifice and atonement; or a man like Hadfield (Hadfield’s Trial (1800), 27 St.Tr. 1281), who suffered from the delusion that the world was coming to an end and that he had been commissioned by God to save mankind by the sacrifice of himself. He knew the act of killing was contrary to law, indeed that he could be hanged for it. He therefore decided in response to his delusion to shoot the King in order to be hanged. Knowledge of the illegality of his act was the reason for doing it. …

The question for the jury is whether mental illness so obstructed the thought processes of the accused as to make him incapable of knowing that his acts were morally wrong. The argument is sometimes advanced that a moral test favours the amoral offender and that the most favoured will be he who had rid himself of all moral compunction. This argument overlooks the factor of disease of the mind. If, as a result of disease of the mind, the offender has lost completely the ability to make moral distinctions and acts under an insane delusion, it can well be said that he should not be criminally accountable. For the foregoing reasons, I would hold that there was error in law in the direction given to the jury as to the meaning of the word “wrong” as used in s. 16(2) of the Criminal Code, in defining insanity and accordingly allow the appeal, quash the conviction, and direct a new trial. …

Appeal dismissed.

 

R. v. Chaulk
Supreme Court of Canada
[1990] 2 C.R. (4th) 1; [1990] 3 S.C.R. 1303

The judgment of Dickson C.J. and Lamer C.J. and La Forest and Cory JJ. was delivered by
Lamer, C.J.:

The Meaning of “Wrong” in s. 16(2)

…The meaning of the term “wrong” for the purposes of s. 16(2) was determined by this Court in R. v. Schwartz, [1977] 1 S.C.R. 673, 67 D.L.R. (3d) 716, 8 N.R. 585, 29 C.C.C. (2d) 477, 34 C.R.N.S. 138. Speaking for the majority, Martland J. held that the capacity to know that an act is wrong in this context means no more than the capacity to know that what one is doing is against the law of the land.

The majority reviewed the principles enunciated in M’Naghten’s Case, supra, and considered their subsequent application by the Court of Criminal Appeal in England and by the High Court of Australia. In M’Naghten’s Case, Lord Chief Justice Tindal stated (at pp. 722-723 [E.R.]):

…to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.

If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.”  (Emphasis added.)

The majority continued by considering the application of the M’Naghten rules by the Court of Criminal Appeal in R. v. Codere (1916), 12 Cr. App. R. 21 (C.A.), and R. v. Windle, [1952] 2 Q.B. 826, [1952] 2 All E.R. 1 (C.A.). In Codere, Lord Chief Justice Reading held (at pp. 27-28):

“It is conceded now that the standard to be applied is whether according to the ordinary standard adopted by reasonable men the act was right or wrong. There may be cases where it is difficult to decide that question, but that is not the case here.…

That is the accepted test, and applying it in this case there can be no room for doubt; once it is clear that the appellant knew that the act was wrong in law, then he was doing an act which he was conscious he ought not to do, and as it was against the law, it was punishable by law; assuming, therefore, that he knew the nature and quality of the act, he was guilty of murder, and was properly convicted.”

…The majority in Schwartz rejected the application of the M’Naghten rules by Dixon C.J. in Stapleton in favour of the decision of the Court of Criminal Appeal in Codere. In their view, the effect of s. 16(2) is to make the defence of insanity available to an accused who, because he suffered from a disease of the mind, did not know that he was committing a crime. The majority did not believe that Dixon C.J.’s test differed from the “legally wrong” test since, “according to the ordinary principles of reasonable men, it is wrong to commit a crime.” Even if there was a difference between the two tests, they could not accept that an insane person, committing an act that he knows to be a crime, could be acquitted if he believed that the act was acceptable according to the standards of reasonable men when a sane person believing such would not be acquitted. Furthermore, the majority rejected Dixon C.J.’s interpretation on the ground that it articulated a subjective approach by examining the individual capacity of an accused to reason as to the wrongfulness of an act (at pp. 701-702):

“In my opinion the test provided in s. 16(2) is not as to whether the accused, by reason of mental disease, could or could not calmly consider whether or not the crime which he committed was morally wrong. He is not to be considered as insane within s. 16(2) if he knew what he was doing and also knew that he was committing a criminal act.”

…With respect for contrary views, it is my opinion that Schwartz was wrongly decided by this Court and that the dissenting opinion of Dickson J. (concurred in by Laskin C.J.C., Spence and Beetz JJ.) is to be preferred. The majority judgment fails, in my respectful view, to appreciate the manner in which insanity renders our normal principles of criminal responsibility inapplicable to an individual as well as the particular objectives of s. 16 of the Code.

I do not dispute the principle that this Court should not easily overrule its prior judgments…

In my opinion, it is appropriate in this case to overrule the majority decision in Schwartz with respect to the meaning of “wrong” in s. 16(2). Dickson C.J.C. described in Bernard four separate factors that would support a decision by this Court to overrule an earlier judgment. These factors were not held to be a comprehensive list, nor was it claimed that they must all be present in a particular case to justify overruling a prior decision. They are instead guidelines to assist this Court in exercising its discretion. The fourth factor that was discussed by Dickson C.J.C., and that is directly relevant to the case at Bar, is whether the prior judgment in the context of penal law is unfavourable to an accused in that it expands the scope of criminal responsibility beyond acceptable limits. Dickson C.J.C. stated (at pp. 860-861 [S.C.R., p. 128 C.R.]):

“Respect for the principle of certainty and the institutional limits imposed upon the law-making functions of the courts should constrain the Court from overruling a prior decision where the effect would be to expand criminal liability. It is not for the courts to create new offences, or to broaden the net of liability, particularly as changes in the law through judicial decision operate retrospectively. The same argument does not apply, however, where the result of overruling a prior decision is to establish a rule favourable to the accused.”

In my view, Schwartz had the effect of expanding the scope of criminal responsibility unacceptably to include persons who, by reason of disease of the mind, were incapable of knowing that an act was wrong according to the normal and reasonable standards of society even though they were aware that the act was formally a crime. It is now necessary for this Court to reconsider its decision in Schwartz in order to redefine the scope of criminal liability in a manner that will bring it into accordance with the basic principles of our criminal law.

The rationale underlying the defence of insanity in Canada, as discussed above under the rubric “The Nature of the Insanity Provisions,” rests on the belief that persons suffering from insanity should not be subject to standard criminal culpability with its resulting punishment and stigmatization. This belief, in turn, flows from the principle that individuals are held responsible for the commission of criminal offences because they possess the capacity to distinguish between what is right and what is wrong.

Section 16(2) of the Code embodies this conception of criminal responsibility by providing that no person shall be convicted of an offence who, at the time of committing the act in question, is in a state of “natural imbecility” or has disease of the mind to such a degree as to render him incapable of “knowing that an act or omission is wrong.” The principal issue in this regard is the capacity of the accused person to know that a particular act or omission is wrong. As such, to ask simply what is the meaning of the word “wrong” for the purpose of s. 16(2) is to frame the question too narrowly. To paraphrase the words of the House of Lords in M’Naghten’s Case, the courts must determine in any particular case whether an accused was rendered incapable, by the fact of his mental disorder, of knowing that the act committed was one that he ought not have done.

Viewed from this perspective, it is plain to me that the term “wrong” as used in s. 16(2) must mean more than simply legally wrong. In considering the capacity of a person to know whether an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of “natural imbecility” or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. This would be the case, for example, if the person suffered from a disease of the mind to such a degree as to know that it is legally wrong to kill but, as described by Dickson J. in Schwartz, kills “in the belief that it is in response to a divine order and therefore not morally wrong” (p. 678).

In applying s. 16(2) to a particular set of facts, it may be established that the accused who attempts to invoke the insanity defence is capable of knowing that he ought not do the act because he knows, first, that the act is contrary to the formal law or, secondly, that the act breaches the standard of moral conduct that society expects of its members. In this regard, subject to the qualification discussed below, I approve of the interpretation of s. 16(2) put forward by Professor Alan Mewett in “Section 16 and ‘Wrong”‘ (1976) 18 Crim. L.Q. 413, at pp. 415-416:

“The question that ought to be asked, it is submitted, is whether the accused, because of a disease of the mind (first hurdle) was rendered incapable (second hurdle) of knowing that this act was something that he ought not to do (third hurdle). If he was capable of knowing that the act was contrary to law and that he ought not to do an act contrary to law, then the defence should not apply. If he was incapable of knowing that it was contrary to law, but capable of knowing that it was an act condemned by people generally, then again the defence should not apply. But if he was incapable of knowing that the act was contrary to law and incapable of knowing that it was an act condemned by people generally, then the defence should apply. This only leaves a situation where he was capable of knowing that the act was contrary to law but incapable both of knowing that to act contrary to law was condemned by people generally and of knowing that this particular act was condemned by people generally. I would have thought that such an accused (who must be the rarest of all individuals) is precisely one who ought to be found not guilty by reason of insanity.”

The qualification that I would make of Professor Mewett’s comments is that the insanity defence should not be made unavailable simply on the basis that an accused knows that a particular act is contrary to law and that he knows, generally, that he should not commit an act that is a crime. It is possible that a person may be aware that it is ordinarily wrong to commit a crime but, by reason of a disease of the mind, believes that it would be “right” according to the ordinary morals of his society to commit the crime in a particular context.- In this situation, the accused would be entitled to be acquitted by reason of insanity.

The test articulated in s. 16(2) is directed, as emphasized above, at an analysis of the capacity of the accused to reason and to understand the meaning of the terms “right” and “wrong”, concepts that demand a moral judgment on the part of every individual in order to be applied in practice. It cannot be determined that an accused does not have the necessary capacity to engage in such moral reasoning simply because he or she does not have the simple ability to retain factual information, for example, the ability to know that a certain act is a crime in the formal sense.…

An interpretation of s. 16(2) that makes the defence available to an accused who knew that he or she was committing a crime, but was unable to comprehend that the act was a moral wrong, will not open the floodgates to amoral offenders or to offenders who relieve themselves of all moral considerations. First, the incapacity to make moral judgments must be causally linked to a disease of the mind; if the presence of a serious mental disorder is not established, criminal responsibility cannot be avoided. Secondly, as was pointed out by Dickson J. in Schwartz “‘[m]oral wrong’ is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong” (p. 678). The accused will not benefit from substituting his own moral code for that of society. Instead, he will be protected by s. 16(2) if he is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society.

In the case at Bar, the trial Judge directed the jury that the insanity defence was not available to the appellants pursuant to the second branch of the test set out in s. 16(2) if it reached the conclusion that the appellants knew, at the time of committing the offence, that the act was contrary to the laws of Canada. Of course, he cannot be faulted for having followed the decision of this Court in Schwartz. Nevertheless, for the reasons discussed above, our interpretation of s. 16(2) in Schwartz was not correct. As a result, I would order a new trial.

The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by
McLachlin J. (dissenting):

The Meaning of “Wrong” in s. 16(2) of the Code

Section 16(2) of the Criminal Code defines insanity. There are two requirements. The first is a “disease of the mind.” The second is that the disease be to an extent that it renders the person incapable either, of (a) appreciating the nature and quality of an act or omission; or (b) of knowing that an act or omission is wrong.

The interpretation of the second arm of the second condition arose at the trial in this case. Following earlier decisions of this Court (in particular R. v. Schwartz, [1977] 1 S.C.R. 673, 67 D.L.R. (3d) 716, 8 N.R. 585, 29 C.C.C. (2d) 477, 34 C.R.N.S. 138), the trial Judge instructed the jury that this condition was filled if the appellants were capable of knowing that their act was legally wrong. The fact that the appellants may not have been capable of appreciating that the act was morally wrong, i.e., that they may have thought it was morally justifiable although legally wrong, was irrelevant.

Lamer C.J.C. has accepted the appellants’ invitation to reconsider. this Court’s earlier conclusion that the capacity to know the act or omission was legally wrong suffices. In his view, an accused who is capable of knowing an act or omission is legally wrong is not subject to the criminal process, if mental illness rendered him or her incapable of knowing the act or omission was morally wrong. I, on the other hand, take the view that it does not matter whether the capacity relates to legal wrongness or moral wrongness - all that is required is that the accused be capable of knowing that the act was in some sense “wrong”. If the accused has this capacity, then it is neither unfair nor unjust to submit the accused to criminal responsibility and penal sanction.…

The Purpose and Theory of Our Insanity Provisions

I turn now to the purpose and theory underlying the insanity provisions. In my view, they too support the view that “wrong” in s. 16(2) of the Code means simply that which one “ought not to do”. The rationale behind the insanity provisions, as discussed earlier in these reasons, is that it is unfair and unjust to make a person who is not capable of conscious choice between right or wrong criminally responsible. Penal sanctions are appropriate only for those who have the ability to reason right from wrong, people capable of appreciating what they ought and ought not to do. A person may conclude that he or she ought not to do an act for a variety of reasons. One may be that it is illegal. Another may be that it is immoral. The reasons for which one concludes that one ought not to do an act are collateral to the fundamental rationale behind the insanity provisions - that criminal conviction is appropriate only where the person is capable of understanding that he or she ought not to do the act in question.

The wider rationale underlying the criminal law generally supports he same view. While other factors may figure, two main mechanisms function to keep people’s conduct within the appropriate legal parameters: (1) a sense of morality, and (2) a desire to obey the law. In most cases, law and morality are co-extensive, but exceptionally they are different. Where morality fails, the legal sanction should not be removed as well. To do so, is to open the door to arguments that absence of moral discernment should excuse a person from the sanction of the criminal law, and thus remove one of the factors which deters inappropriate and destructive conduct. That should not be done lightly. The fact that such arguments could not be entertained without establishing a “disease of the mind” is small comfort when one takes account of the difficulty of defining or diagnosing “disease of the mind.” Recent research seems to suggest that the vast majority of forensic psychiatrists and psychologists, including those who have given evidence with respect to legal insanity in a large number of cases, have no effective understanding of the legal test about which they are expressing an opinion…

To hold that absence of moral discernment due to mental illness should exempt a person who knows that legally he or she ought not to do a certain act is, moreover, to introduce a lack of parallelism into the criminal law; generally, absence of moral appreciation is no excuse for criminal conduct. When the moral mechanism breaks down in the case of an individual who is sane, we do not treat that as an excuse for disobeying the law; for example, in the case of a psychopath. The rationale is that an individual either knows or is presumed to know the law, and the fact that his or her moral standards are at variance with those of society is not an excuse. Why, if the moral mechanism breaks down because of disease of the mind, should it exempt the accused from criminal responsibility where he or she knows, or was capable of knowing, that the act was illegal and hence one which he or she “ought not to do”? Why should deficiency of moral appreciation due to mental illness have a different consequence than deficiency of moral appreciation due to a morally-impoverished upbringing, for example? I see no reason why the policy of the law should differ in the two cases.

The Difficulty of Determining What is Morally Wrong

I turn finally to the practical difficulty imposed by permitting persons who know they ought not to do an act for legal reasons from escaping criminal responsibility on the ground that they were incapable of realizing that the act was immoral. As Colvin, Principles of Criminal Law, op. cit., observes at p. 253, “[t]here is no system of authoritative moral pronouncements which is equivalent to that found in law.”

In Mental Disorder and the Criminal Trial Process (Toronto: Butterworths, 1978), Marc Schiffer expands on this point (at p. 134):

“If . . . we were to judge wrongfulness by the moral standards of society (as the minority in Schwartz suggested), it is submitted that the right-wrong test would become virtually meaningless. In the case of certain crimes (e.g. abortion), even the most lucid individual would have trouble appraising society’s views without conducting an opinion poll. In the case of other crimes (e.g. rape) the most severe psychotic might know that they are morally condemned by society.”

Although abortion is no longer the subject of criminal sanction, it is not difficult to conceive of other criminally proscribed acts (e.g. euthanasia) where wrongfulness in the eyes of society may not necessarily coincide with wrongfulness in the eyes of the law.

The problem with making capacity to appreciate moral wrong the test for criminal responsibility where the incapacity is caused by mental illness, is that of determining what society’s moral judgment will be in every situation. What result is to obtain on those occasions where an accused claims an incapacity to know that his or her unlawful act was morally wrong and, objectively, the act was one for which the moral wrongfulness can be disputed? Certainly a court is in no position to make determinations on questions of morality, nor is it fair to expect a jury to be able to agree on what is morally right or morally wrong. The prospect of greater certainty, and the avoidance of metaphysical arguments on right and wrong is the chief advantage of adhering to the traditional M’Naghten test for criminal responsibility where causative disease of the mind exists - whether the accused, for whatever reason, was capable of appreciating that his or her act is wrong.

The importance of certainty in the criminal law cannot be overestimated. It should be relatively clear when criminal responsibility attaches and when it does not if the criminal law is to have the requisite deterrent effect, and if it is to be seen to function fairly and equitably to all. A person’s criminal responsibility should not hinge on questions of whether an act would be generally perceived as immoral.

 

Winko v. British Columbia (Forensic Psychiatric Institute)
[1999] 2 S.C.R. 625
[1999] S.C.J. No. 31
Supreme Court of Canada

The judgment of Lamer C.J. and Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by
McLACHLIN J.:—

I.         Introduction

1     In every society there are those who commit criminal acts because of mental illness. The criminal law must find a way to deal with these people fairly, while protecting the public against further harms. The task is not an easy one.
2     In 1991 Parliament provided its answer to this challenge: Part XX.1 of the Criminal Code, R.S.C., 1985, c. C-46. The appellant Winko submits that Part XX.1 violates his rights to liberty, security of the person and equality under the Canadian Charter of Rights and Freedoms. The same issue is raised in the companion appeals of Bese v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 722, Orlowski v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 733, and R. v. LePage, [1999] 2 S.C.R. 744.
3     I conclude that Part XX.1 of the Criminal Code protects the liberty, security of the person, and equality interests of those accused who are not criminally responsible ("NCR") on account of a mental disorder by requiring that an absolute discharge be granted unless the court or Review Board is able to conclude that they pose a significant risk to the safety of the public. It follows that Part XX.1 does not deprive mentally ill accused of their liberty or security of the person in a manner contrary to the principles of fundamental justice. Nor does it violate their right to equal treatment under the law.

II.        Facts

4     At the time of the Review Board disposition under appeal, Mr. Winko was a 47-year-old, single, unemployed man living at the Hampton Hotel in downtown Vancouver, British Columbia. He had been diagnosed with the mental illness of chronic residual schizophrenia. Indeed, the appellant has a long history of mental illness and hospitalization. On July 6, 1983, when Mr. Winko was 35, he was arrested for attacking two pedestrians on the street with a knife and stabbing one of them behind the ear. Prior to this incident, Mr. Winko had been hearing voices which he thought were coming from pedestrians saying, "why don't you go and grab a woman and do her some harm?", "you are going to the West End to kill someone", "you know you can't kill a woman", and "you are a coward". Winko was charged and taken to the Forensic Psychiatric Institute ("FPI"), where he continued to report auditory and visual hallucinations. In due course he was charged with aggravated assault, assault with a weapon, and possession of a weapon for purposes dangerous to the public peace. He was tried and found not criminally responsible, [1984] B.C.J. No. 694.
5     From the NCR verdict in 1984 until August 7, 1990, Mr. Winko was held at the FPI. He was considered institutionalized. After his release, he lived in a series of hotels in the downtown eastside area of Vancouver. On June 1, 1994, he failed to appear at his Review Board hearing at the appointed time. However, he came to the Review Board Office later in the day, dirty, malodorous and complaining of being harassed by people on the street. He was readmitted to the FPI on June 6, 1994. He was cooperative, took his medication, and recovered rapidly.
6     Mr. Winko was returned to the community on July 5, 1994. This time, he went to live at the Hampton Hotel, run by the Mental Patients Association. The hotel is staffed by professional mental health workers who encourage residents to live independently. They also encourage residents to take their medication and communicate any concerns to the treatment team assigned to the patient.
7     In September 1994, Mr. Winko once again missed a medication injection, due in part to the failure of his doctor to keep track of the injections (which resulted in no one reminding Mr. Winko of the need for treatment). This led to a recurrence of the voices, and Mr. Winko voluntarily returned to the FPI in October 1994. He recovered rapidly and soon returned to the Hampton Hotel, where he has resided ever since.
8     Mr. Winko's residence at the Hampton Hotel has never presented any particular problems. In general he interacts well with the other residents at the hotel. Despite occasional supervised breaks from medication due to side-effects (the most recent break of 18 months occurring in 1994), he has never been physically aggressive to anyone since the offences of 1983.
9     Mr. Winko's case illustrates many features often faced by a court or Review Board considering the status of an NCR accused: a concern, often based on events long past, requiring consideration of public safety before full release into society; a countervailing record of peaceful behaviour in more recent years; a medical record that indicates difficulties staying on medication and the possibility of recurrence of illness when lapses occur; and the fact that for most of his adult life, Mr. Winko has been subject to constraints on his liberty with no immediate prospect of release. This said, different cases present different scenarios. Sometimes the harm that leads to NCR status is as trivial as shoplifting. Sometimes it is as serious as homicide. Sometimes the accused has a record of perfect compliance with medication and medical directives. Sometimes compliance is a problem. Justice requires that the NCR accused be accorded as much liberty as is compatible with public safety. The difficulty lies in devising a rule and a system that permits this to be accomplished in each individual's case.

III.      Judgments Below

10     The Review Board considered Mr. Winko's status on May 29, 1995. The Review Board consisted of three people: N. J. Prelypchan, who acted as chairperson, Susan Irwin, and Dr. A. Marcus, a psychiatrist. By a vote of two to one, the Review Board granted Mr. Winko a conditional discharge. Dr. Marcus voted in favour of an absolute discharge. The majority expressed the opinion that Mr. Winko could become a significant risk to public safety in "certain circumstances", and suggested that a conditional discharge was consistent with the British Columbia Court of Appeal's decision in Orlowski v. British Columbia (Attorney-General) (1992), 75 C.C.C. (3d) 138 ("Orlowski No. 1"). Ms. Irwin added: "I clearly acknowledge that there haven't been any incidents of threat to other people." Dr. Marcus, noting the absence of any evidence that Mr. Winko had been a danger to anyone since the index offence, concluded that there was "no indication ... that he would relapse and continue to be or again commit an act which one could call a significant threat".
11     On July 29, 1996, a majority of the British Columbia Court of Appeal upheld on its merits the Review Board's decision to grant Mr. Winko a conditional discharge: (1996), 79 B.C.A.C. 1.…

IV.       The Statutory Provisions

12     The following provisions of the Criminal Code are at issue:

[16.(1), 672.34, 672.38, 672.39, 672.4(1), 672.41(1), and]

672.54 Where a court or Review Board makes a disposition pursuant to subsection 672.45(2) or section 672.47, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:
(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;
(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or
(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.

672.81 (1) A Review Board shall hold a hearing not later than twelve months after making a disposition and every twelve months thereafter for as long as the disposition remains in force, to review any disposition that it has made in respect of an accused, other than an absolute discharge under paragraph 672.54(a).
(2) The Review Board shall hold a hearing to review any disposition made under paragraph 672.54(b) or (c) as soon as is practicable after receiving notice that the person in charge of the place where the accused is detained or directed to attend
(a) has increased the restrictions on the liberty of the accused significantly for a period exceeding seven days; or
(b) requests a review of the disposition.

13     Mr. Winko and his co-appellants on the companion appeals submit that s. 672.54 infringes their rights to liberty and security of the person guaranteed by s. 7 and their equality rights guaranteed by s. 15(1) of the Charter. They argue that neither infringement is justified under s. 1 of the Charter. …

VI.       Analysis

A.        What Section 672.54 of the Criminal Code Requires

15     The appellant argues that s. 672.54 infringes his rights to liberty, security of the person, and equality as guaranteed by the Charter. Before these arguments can be considered, we must ascertain precisely how s. 672.54 affects those rights. In a very real sense, the dispute on this appeal focuses not on the Charter, so much as on how s. 672.54 should be read. The appellant and his co-appellants contend that the section creates a presumption of dangerousness and improperly shifts the burden of proving the contrary to the NCR accused, introducing the possibility that he or she may remain under liberty constraints indefinitely. They argue that, in the past, courts and Review Boards have interpreted these provisions of the Criminal Code as creating such a presumption.
16     Regardless of what courts and Review Boards may have done in the past, I cannot accept the interpretation of s. 672.54 proposed by the appellants. The history, purpose and wording of s. 672.54 of the Code indicate that Parliament did not intend NCR accused to carry the burden of disproving dangerousness. Rather, Parliament intended to set up an assessment-treatment system that would identify those NCR accused who pose a significant threat to public safety, and treat those accused appropriately while impinging on their liberty rights as minimally as possible, having regard to the particular circumstances of each case. I conclude that this scheme fulfills these goals in a manner that does not infringe the appellants' rights under either s. 7 or s. 15(1) of the Charter.

1.         The History, Structure and Purpose of Part XX.1

17     Historically at common law, those who committed criminal acts while mentally ill were charged and required to stand trial like other offenders. At the end of the trial, they were either acquitted or convicted and sentenced accordingly. The common law permitted no special verdict or disposition. The only concession made to the illness that induced the offence was the accused's right to raise the defence that he or she was unable to understand the nature and quality of the act, the M'Naghten Rules: see M'Naghten's Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718 (H.L.). The law held that such incapacity deprived the mentally ill accused person of the criminal intent or mens rea required for the offence. Sanity, however, was presumed; it was up to the accused to demonstrate the contrary.
18     Until 1990, the provisions of the Criminal Code dealing with criminal acts committed as a result of mental illness reflected the common law approach of treating those offences like any others, subject to the special defence of not understanding the nature and quality of the act. The only verdicts available under the Criminal Code were conviction or acquittal. However, even where the accused was acquitted on the basis of mental illness, he or she was not released, but was automatically detained at the pleasure of the Lieutenant Governor in Council: Criminal Code, s. 614(2) (formerly s. 542(2)) (repealed S.C. 1991, c. 43, s. 3).
19     The first Charter challenge against this system came in R. v. Chaulk, [1990] 3 S.C.R. 1303, where a majority of this Court ruled that the requirement that the accused prove an inability to understand the nature and quality of his or her act violated the accused's right to be presumed innocent, but that the burden was constitutionally saved under s. 1. A second Charter challenge came in R. v. Swain, [1991] 1 S.C.R. 933, where this Court struck down the provision for automatic, indefinite detention of an NCR accused on the basis that it violated the accused's s. 7 liberty rights.
20     In response to Swain, Parliament introduced sweeping changes by enacting Part XX.1 of the Criminal Code in 1991: An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, c. 43. Part XX.1 reflected an entirely new approach to the problem of the mentally ill offender, based on a growing appreciation that treating mentally ill offenders like other offenders failed to address properly the interests of either the offenders or the public. The mentally ill offender who is imprisoned and denied treatment is ill-served by being punished for an offence for which he or she should not in fairness be held morally responsible. At the same time, the public facing the unconditional release of the untreated mentally ill offender was equally ill-served. To achieve the twin goals of fair treatment and public safety, a new approach was required.
21     Part XX.1 rejects the notion that the only alternatives for mentally ill people charged with an offence are conviction or acquittal; it proposes a third alternative. Under the new scheme, once an accused person is found to have committed a crime while suffering from a mental disorder that deprived him or her of the ability to understand the nature of the act or that it was wrong, that individual is diverted into a special stream. Thereafter, the court or a Review Board conducts a hearing to decide whether the person should be kept in a secure institution, released on conditions, or unconditionally discharged. The emphasis is on achieving the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately….
23     Part XX.1 of the Criminal Code rests on the characterization of the person who commits an offence while mentally ill as "not criminally responsible", or NCR: s. 16. Under the new regime, once a judge or jury enters a verdict of "not criminally responsible on account of mental disorder", the person found NCR becomes subject to the provisions of Part XX.1. The court may, either on its own motion or on application by the prosecutor or the NCR accused, hold a disposition hearing: s. 672.45(1). At such a hearing, the court may make an immediate disposition with respect to the accused if it is satisfied that a disposition should be made without delay and that it can do so readily in the circumstances: s. 672.45(2). If the court does not make a disposition, the custodial provisions in force at the time of the verdict continue until a hearing is held by the Review Board of the province, established under s. 672.38 of the Code: s. 672.46(1).
24     The Review Board is chaired by a judge of the Federal Court, a judge of a superior, district or county court of a province, or a person who is qualified for appointment to or has retired from such a judicial office: s. 672.4(1). At least one member must be a psychiatrist, and where only one member is a psychiatrist, at least one other member must have training and experience in the field of mental health and be entitled to practice medicine or psychology: ss. 672.39 and 672.41.
25     If the court has not made a disposition with respect to the accused after the NCR verdict, the Review Board must hold a hearing and make a disposition as soon as practicable, but not later than 45 days after the verdict is rendered (although the court may extend this time period to 90 days in exceptional circumstances): ss. 672.47(1) and 672.47(2). If the court has made any disposition other than an absolute discharge, the Review Board must hold a hearing and make a disposition before that disposition expires and, in any event, within 90 days after the court's initial order: ss. 672.47(3) and 672.55(2).
26     Whether the hearing is held by the court after the NCR verdict is rendered or by the Review Board at a later date, the proceedings are conducted in accordance with s. 672.5. The procedure at the hearing is informal. The Crown does not necessarily appear. The court or Review Board may designate as a party any person who has a substantial interest in protecting the rights of the NCR accused: s. 672.5(4). The NCR accused has a right to counsel and is entitled to be present throughout, except in certain specified circumstances: s. 672.5(7), (9), (10). Any party may present evidence, make oral or written submissions, call witnesses, cross-examine any witnesses called by another party and, on application, cross-examine any person who has submitted a written assessment report to the court or Review Board: s. 672.5(11). If the hearing is being held by a Review Board, that body has all the powers conferred on a commissioner by ss. 4 and 5 of the Inquiries Act, R.S.C., 1985, c. I-11: ss. 672.43 and 672.5. Finally, any party may request that the court or Review Board compel the attendance of witnesses: s. 672.5(12).
27     Any disposition regarding an NCR accused must be made in accordance with s. 672.54. The court or Review Board may order that the NCR accused be discharged absolutely, that he or she be discharged on conditions, or that he or she be detained in a hospital and subject to the conditions the court or Review Board considers appropriate. Although the court or Review Board has a wide latitude in determining the appropriate conditions to be imposed, it can only order that psychiatric or other treatment be carried out if the NCR accused consents to that condition, and the court or Review Board considers it to be reasonable and necessary: s. 672.55(1).
28     The Review Board must hold a further hearing within 12 months of making any disposition other than an absolute discharge and further reviews must be conducted at least every 12 months thereafter: s. 672.81(1). A further hearing also must be held as soon as practicable when the restrictions on the liberty of the NCR accused are increased significantly, or upon the request of the person in charge of the place where the accused is detained or directed to attend: s. 672.81(2). Apart from these mandatory reviews, the Review Board may review any of its dispositions at any time, on the request of the accused or any other party: s. 672.82(1). Any party may appeal against a disposition by a court or the Review Board to the Court of Appeal on a question of law or fact or a question of mixed law and fact: s. 672.72(1).

30     These procedures and the principles underlying them represent a fundamental departure from the common law approach to those who commit offences while mentally ill. Instead of the stark alternatives of guilt or innocence, leavened only by the M'Naghten Rules, Part XX.1 offers a new alternative. The NCR accused is to be treated in a special way in a system tailored to meet the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately. Under the new approach, the mentally ill offender occupies a special place in the criminal justice system; he or she is spared the full weight of criminal responsibility, but is subject to those restrictions necessary to protect the public.
31     The verdict of NCR under Part XX.1 of the Criminal Code, as noted, is not a verdict of guilt. Rather, it is an acknowledgement that people who commit criminal acts under the influence of mental illnesses should not be held criminally responsible for their acts or omissions in the same way that sane responsible people are. No person should be convicted of a crime if he or she was legally insane at the time of the offence: Swain, supra, at p. 976. Criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong: Chaulk, supra, at p. 1397; G. Ferguson, "A Critique of Proposals to Reform the Insanity Defence" (1989), 14 Queen's L.J. 135, at p. 140. For this reason, s. 16(1) of the Criminal Code exempts from criminal responsibility those suffering from mental disorders that render them incapable either of appreciating the nature and quality of their criminal acts or omissions, or of knowing that those acts or omissions were wrong.
32     Nor is the verdict that a person is NCR a verdict of acquittal. Although people may be relieved of criminal responsibility when they commit offences while suffering from mental disorders, it does not follow that they are entitled to be released absolutely. Parliament may properly use its criminal law power to prevent further criminal conduct and protect society: Swain, at p. 1001. By committing acts proscribed by the Criminal Code, NCR accused bring themselves within the criminal justice system, raising the question of what, if anything, is required to protect society from recurrences….
33     The preventative or protective jurisdiction exercised by the criminal law over NCR offenders extends only to those who present a significant threat to society. As Lamer C.J. stated in Swain, at p. 1008: "As the individual becomes less of a threat to society, the criminal law progressively loses authority". The only justification there can be for the criminal law detaining a person who has not been found guilty (or is awaiting trial on an issue of guilt) is maintaining public safety. Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application.
34     This raises a terminological point. Under the old provisions of the Criminal Code based on the common law rule, the accused relieved of criminal responsibility by reason of insanity was referred to as an NCR "acquittee". This was because, as explained, the person was viewed as acquitted for want of mens rea or criminal intent: Chaulk, supra; Swain, supra. Under Part XX.1, by contrast, the NCR offender is not acquitted. He or she is simply found to be not criminally responsible. People who fall within the scope of Part XX.1 are more appropriately referred to as simply NCR accused, the terminology in fact employed by the Code, and which has been used in these reasons.
35     If the NCR verdict is not a verdict of guilt or an acquittal, neither is it a verdict that the NCR accused poses a significant threat to society. Part XX.1 does not presume the NCR accused to pose such a threat. Rather, it requires the court or the Review Board to assess whether such a threat exists in each case. Part XX.1 thus recognizes that, contrary to the stereotypical notions that some may still harbour, the mentally ill are not inherently dangerous. The mentally ill have long been subject to negative stereotyping and social prejudice in our society based on an assumption of dangerousness: Swain, supra, at p. 994; Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, at p. 586. …
36     In 1975, the Law Reform Commission of Canada recognized that these negative stereotypes of the mentally ill had found their way into the criminal justice system:

This widely held fear of the mad criminal makes acceptable the confinement and lengthy detention of mentally disordered accused or offenders in circumstances which their "sane" counterpart would be either less severely sanctioned or released outright. These attitudes are reflected in the element of preventive detention implicit in the remand and dispositional provisions of the Criminal Code and in the choice of procedures of the personnel dealing with the mentally ill in the criminal process.
(Working Paper 14, The Criminal Process and Mental Disorder, at p. 14.)
37     As the stereotype of the "mad criminal" has been undermined by research, we have learned that only a few mental disorders are associated with increased rates of violent behaviour: J. Cocozza and H. Steadman, "The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence" (1976), 29 Rutgers L. Rev. 1084, at pp. 1088-89; S. Hodgins, Mental Disorder and Crime (1993); Law Reform Commission, supra, at p. 19. And for these disorders, it is not clear whether the increased rates of violent behaviour result from the illness itself or from the socially marginalizing side-effects of the illness. …

Research shows that NCR accused are no more likely than their convicted counterparts to commit any offence, let alone a violent offence, upon release: M. E. Rice, et al. "Recidivism Among Male Insanity Acquittees" (1990), 18 J. Psychiatry & Law 379, at pp. 393-95; G. T. Harris, M. E. Rice and C. A. Cormier, "Length of Detention in Matched Groups of Insanity Acquittees and Convicted Offenders" (1991), 14 Int'l J. L. & Psy. 223, at p. 234; J. R. P. Ogloff et al., "Empirical Research Regarding the Insanity Defense: How Much Do We Really Know?", Chapter 6, in J. R. P. Ogloff, ed., Law and Psychology: The Broadening of the Discipline (1992), 171, at p. 184….

39     In the spirit of supplanting the old stereotypes about mentally ill offenders, Part XX.1 supplements the traditional guilt-innocence dichotomy of the criminal law with a new alternative for NCR accused—an alternative of assessment to determine whether the person poses a continuing threat to society coupled with an emphasis on providing opportunities to receive appropriate treatment. The twin branches of the new system—assessment and treatment—are intimately related. Treatment, not incarceration, is necessary to stabilize the mental condition of a dangerous NCR accused and reduce the threat to public safety created by that condition. …
40     Part XX.1 protects society. If society is to be protected on a long-term basis, it must address the cause of the offending behaviour—the mental illness. It cannot content itself with locking the ill offender up for a term of imprisonment and then releasing him or her into society, without having provided any opportunities for psychiatric or other treatment. Public safety will only be ensured by stabilizing the mental condition of dangerous NCR accused.
41     Part XX.1 also protects the NCR offender. The assessment-treatment model introduced by Part XX.1 of the Criminal Code is fairer to the NCR offender than the traditional common law model. The NCR offender is not criminally responsible, but ill. Providing opportunities to receive treatment, not imposing punishment, is the just and appropriate response. As Goldie J.A. stated in Davidson v. British Columbia (Attorney-General) (1993), 87 C.C.C. (3d) 269 (B.C.C.A.), at p. 277:

[T]he treatment of one unable to judge right from wrong is intended to cure the defect. It is not penal in purpose or effect. Where custody is imposed on such a person, the purpose is prevention of antisocial acts, not retribution.

See generally D. Laberge and D. Morin, "The Overuse of Criminal Justice Dispositions: Failure of Diversionary Policies in the Management of Mental Health Problems" (1995), 18 Int'l J. L. & Psy. 389, at p. 389. The need for treatment rather than punishment is rendered even more acute by the fact that the mentally ill are often vulnerable and victimized in the prison setting, as well as by changes in the health system that many suggest result in greater numbers of the mentally ill being caught up in the criminal process. See S. Davis, "Assessing the 'Criminalization' of the Mentally Ill in Canada", Can. J. Psychiatry, 37(8) (October 1992), at pp. 532-38.

42     By creating an assessment-treatment alternative for the mentally ill offender to supplant the traditional criminal law conviction-acquittal dichotomy, Parliament has signalled that the NCR accused is to be treated with the utmost dignity and afforded the utmost liberty compatible with his or her situation. The NCR accused is not to be punished. Nor is the NCR accused to languish in custody at the pleasure of the Lieutenant Governor, as was once the case. Instead, having regard to the twin goals of protecting the safety of the public and treating the offender fairly, the NCR accused is to receive the disposition "that is the least onerous and least restrictive" one compatible with his or her situation, be it an absolute discharge, a conditional discharge or detention: s. 672.54.
43     In summary, the purpose of Part XX.1 is to replace the common law regime for the treatment of those who offend while mentally ill with a new approach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. Under Part XX.1, the NCR accused is neither convicted nor acquitted. Instead, he or she is found not criminally responsible by reason of illness at the time of the offence. This is not a finding of dangerousness. It is rather a finding that triggers a balanced assessment of the offender's possible dangerousness and of what treatment-associated measures are required to offset it. Throughout the process the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1's goals of public protection and fairness to the NCR accused.

2.         The Wording and Function of Section 672.54

44     The specific wording of s. 672.54 indicates that the provision seeks to further the aims of Part XX.1 of protecting the public while preserving maximum liberty of the NCR accused through the assessment-treatment model.….
62     [T]he duties of a court or Review Board that is charged with interpreting s. 672.54 may, for practical purposes, be summarized as follows:

1. The court or Review Board must consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused. The court or Review Board is required in each case to answer the question: does the evidence disclose that the NCR accused is a "significant threat to the safety of the public"?
2. A "significant threat to the safety of the public" means a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying. The conduct giving rise to the harm must be criminal in nature.
3. There is no presumption that the NCR accused poses a significant threat to the safety of the public. Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat. The court or Review Board cannot avoid coming to a decision on this issue by stating, for example, that it is uncertain or cannot decide whether the NCR accused poses a significant threat to the safety of the public. If it cannot come to a decision with any certainty, then it has not found that the NCR accused poses a significant threat to the safety of the public.
4. The proceeding before the court or Review Board is not adversarial. If the parties do not present sufficient information, it is up to the court or Review Board to seek out the evidence it requires to make its decision. Where the court is considering the matter, it may find in such circumstances that it cannot readily make a disposition without delay and that it should be considered by the Review Board. Regardless of which body considers the issue, there is never any legal burden on the NCR accused to show that he or she does not pose a significant threat to the safety of the public.
5. The court or Review Board may have recourse to a broad range of evidence as it seeks to determine whether the NCR accused poses a significant threat to the safety of the public. Such evidence may include the past and expected course of the NCR accused's treatment, if any, the present state of the NCR accused's medical condition, the NCR accused's own plans for the future, the support services existing for the NCR accused in the community, and the assessments provided by experts who have examined the NCR accused. This list is not exhaustive.
6. A past offence committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused continues to pose a significant risk to the safety of the public. However, the fact that the NCR accused committed a criminal act in the past may be considered together with other circumstances where it is relevant to identifying a pattern of behaviour, and hence to the issue of whether the NCR accused presents a significant threat to public safety. The court or Review Board must at all times consider the circumstances of the individual NCR accused before it.
7. If the court or Review Board concludes that the NCR accused is not a significant threat to the safety of the public, it must order an absolute discharge.
8. If the court or Review Board concludes that the NCR accused is a significant threat to the safety of the public, it has two alternatives. It may order that the NCR accused be discharged subject to the conditions the court or Review Board considers necessary, or it may direct that the NCR accused be detained in custody in a hospital, again subject to appropriate conditions.
9. When deciding whether to make an order for a conditional discharge or for detention in a hospital, the court or Review Board must again consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused, and make the order that is the least onerous and least restrictive to the NCR accused.

63     This brings us to the question of whether s. 672.54, properly interpreted, violates the NCR accused's rights under the Charter.

B.        Does Section 672.54 of the Criminal Code Infringe Section 7 of the Charter?


68     The first submission is that the standard of "significant threat to the safety of the public" in s. 672.54 is too vague. A law will only be found to be unconstitutionally vague if it so lacks precision that it does not give sufficient guidance for legal debate: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at pp. 638-40. As this Court has acknowledged, this is a relatively high threshold. Laws must of necessity cover a variety of situations. Given the infinite variability of conduct, it is impossible to draft laws that precisely foresee each case that might arise. It is the task of judges, aided by precedent and considerations like the text and purpose of a statute, to interpret laws of general application and decide whether they apply to the facts before the court in a particular case. This process is not in breach of the principles of fundamental justice; rather, it is in the best tradition of our system of justice.
69     The phrase "significant threat to the safety of the public" satisfies the test of providing sufficient precision for legal debate. The standard of "public safety" was found not unconstitutionally vague in R. v. Morales, [1992] 3 S.C.R. 711. "Significant threat" has been applied by lower courts without difficulty: Davidson, supra; R. v. Peckham (1994), 19 O.R. (3d) 766 (C.A.). Without purporting to define the term exhaustively, the phrase conjures a threat to public safety of sufficient importance to justify depriving a person of his or her liberty. As I stated earlier, there must be a foreseeable and substantial risk that the NCR accused would commit a serious criminal offence if discharged absolutely. It is impossible to predict or catalogue in advance all the types of conduct that may threaten public safety to this extent. It must be left for the court or the Review Board to determine whether the conduct in the case it is assessing meets this standard. In discharging this task, the court or Review Board will bear in mind the high value our society places on individual liberty, as reflected in the Charter. It will also bear in mind the need to protect society from significant threats. The final determination is made after hearing evidence and considering the need to protect individual liberty as much as possible as well as the need to protect society. This process, as I have outlined it above, does not violate the principles of fundamental justice.
70     The second contention is that s. 672.54 improperly shifts the burden to the NCR accused to prove that he or she will not pose a significant threat to public safety, in violation of the basic maxim that it is for the State, which is depriving a person of liberty, to justify that deprivation. On the interpretation of s. 672.54 proposed earlier, this submission must also fail. Section 672.54 does not create a presumption that an NCR accused poses a significant threat to public safety. Rather, the court or Review Board must have a hearing upon the rendering of an NCR verdict to determine whether the NCR accused actually does, in fact, pose such a threat. Nor does the section require the NCR accused to prove the absence of a significant threat to public safety. It is for the court or Review Board, acting in an inquisitorial capacity, to investigate the situation prevailing at the time of the hearing and determine whether the accused poses a significant threat to the safety of the public. If the record does not permit it to conclude that the person constitutes such a threat, the court or Review Board is obliged to make an order for unconditional discharge. If the court or Review Board finds that the person does pose such a threat, it must proceed to make an order discharging the NCR accused on conditions or detaining him or her in a hospital. In all cases, the court or Review Board must make the disposition that is the least restrictive of the NCR accused's liberty possible. This process does not violate the principles of fundamental justice.
71     The third way s. 672.54 is argued to violate s. 7 of the Charter is through overbreadth. The question is whether the means chosen by the State are broader than necessary to achieve the State objective: R. v. Heywood, [1994] 3 S.C.R. 761. The dual objectives of Part XX.1, and s. 672.54 in particular, are to protect the public from the NCR accused who poses a significant threat to public safety while safeguarding the NCR accused's liberty to the maximum extent possible. To accomplish these goals, Parliament has stipulated (on the interpretation of s. 672.54 set out above) that unless it is established that the NCR accused is a significant threat to public safety, he must be discharged absolutely. In cases where such a significant threat is established, Parliament has further stipulated that the least onerous and least restrictive disposition of the accused must be selected. In my view, this scheme is not overbroad. It ensures that the NCR accused's liberty will be trammelled no more than is necessary to protect public safety. It follows that I cannot agree with the contrary decision of the Manitoba Court of Appeal in R. v. Hoeppner, [1999] M.J. No. 113 (QL).
72     In addition to the safeguards of the NCR accused's liberty found in s. 672.54, Part XX.1 further protects his or her liberty by providing for, at minimum, annual consideration of the case by the Review Board: s. 672.81. The NCR accused has the right to appeal to the Court of Appeal a disposition made by a court or Review Board: s. 672.72. If a court or Review Board fails to interpret and apply s. 672.54 correctly and unduly impinges on the NCR accused's liberty, the NCR accused therefore has an appropriate remedy.
73     For these reasons, I conclude that the legislative scheme Parliament has established to deal with persons found not criminally responsible for offences does not infringe s. 7 of the Charter.

C.        Does Section 672.54 of the Criminal Code Infringe Section 15 of the Charter?

74     The Charter's equality guarantee forbids, among other things, laws or other government actions that treat an individual unequally on the basis of stereotypical group-based distinctions. Such actions are repugnant to our constitutional order because instead of treating an individual as equally deserving of concern, respect, and consideration, they disadvantage that individual arbitrarily and stereotypically.
75     The central purpose of the guarantee in s. 15(1) is to protect an individual's right to be treated with dignity. Our Court has recently re-affirmed this principle in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, where Iacobucci J. had occasion to discuss "human dignity" this way, at para. 53:

What is human dignity? There can be different conceptions of what human dignity means. For the purpose of analysis under s. 15(1) of the Charter, however, the jurisprudence of this Court reflects a specific, albeit non-exhaustive, definition. As noted by Lamer C.J. in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 554, the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

The effect of a law on the dignity of the claimant is to be assessed from the perspective of a "reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant": Law, at para. 60, per Iacobucci J. All the circumstances must be considered when answering this fundamental question. What is relevant in a particular case will vary with the situation.

85     The question here is whether s. 672.54 is discriminatory in the substantive sense denoted by our s. 15(1) jurisprudence. It will be apparent from the earlier discussion of the legislative history of Part XX.1 that it was adopted for the purpose of eliminating the stereotyping and stigmatization that mentally ill accused had historically suffered. The stereotype of the "mad offender" too often led to the institutionalization of an acquitted accused or worse, incarceration in prisons where they were denied the medical attention they required and were subjected to abuse. By forcing an accused to face indefinite detention at the pleasure of the Lieutenant Governor in Council, on the assumption that such confinement was necessary for purposes of public safety, it encouraged the characterization of mentally ill people as quasi-criminal and contributed to the view that the mentally ill were always dangerous, a view we now know to be largely unfounded. In many cases, indeed, it treated people who had committed no crime and indeed were not capable of criminal responsibility worse than true criminals, sometimes using jails as the places of detention. For all these reasons and more, Parliament enacted Part XX.1 of the Criminal Code.
86     It is thus clear that it was not the intention of Parliament to discriminate against NCR accused in enacting Part XX.1 of the Criminal Code. Rather, it was Parliament's intention to combat discrimination and treat individuals who commit criminal acts which they cannot know are wrong in a way appropriate to their true situation. But good intentions, while important, are not enough to establish lack of discrimination. We must go further and ask whether in its effect Part XX.1 reflects a stereotypical application of presumed group characteristics or otherwise denies the essential dignity of NCR accused….
88     The essence of stereotyping, as mentioned above, lies in making distinctions against an individual on the basis of personal characteristics attributed to that person not on the basis of his or her true situation, but on the basis of association with a group: Andrews, supra, at pp. 174-75; Law, supra, at para. 61. The question is whether Part XX.1 in effect operates against individual NCR accused in this way. In my view, it does not. At every stage, Part XX.1 treats the individual NCR accused on the basis of his or her actual situation, not on the basis of the group to which he or she is assigned. Before a person comes under Part XX.1, there must be an individual assessment by a trial judge based on evidence with full access to counsel and other constitutional safeguards. A person falls under Part XX.1 only if the judge is satisfied that he or she was unable to know the nature of the criminal act or that it was wrong. The assessment is based on the individual's situation. It does not admit of inferences based on group association. More importantly, the disposition of the NCR accused is similarly tailored to his or her individual situation and needs, and is subject to the overriding rule that it must always be the least restrictive avenue appropriate in the circumstances. Finally, the provision for an annual review (at a minimum) of the individual's status ensures that his or her actual situation as it exists from time to time forms the basis of how he or she is to be treated….

91     Earlier in these reasons, I rejected the view that Part XX.1 perpetuates the view that all NCR are dangerous, or even presumptively dangerous. On the contrary, in neither its purpose nor its effect does the differential treatment mandated by Part XX.1 send a negative message to society about the NCR accused. Nor can it reasonably be understood to demean their dignity as individual human beings. Rather, the process it lays down and the treatment options for which it provides embody the message that every NCR accused is equally entitled to all protections available to other people, subject only to such constraints as may be required as a result of his or her illness in the interest of public safety. In its purpose and effect, it reflects the view that NCR accused are entitled to sensitive care, rehabilitation and meaningful attempts to foster their participation in the community, to the maximum extent compatible with the individual's actual situation.

94     In asserting that NCR accused must be treated "the same" as criminally responsible offenders who commit the same criminal act, the appellants assume that the infringement of their liberty is meant to serve the same function that it does for those found guilty of criminal offences. As I noted, this is mistaken. Any restrictions on the liberty of NCR accused are imposed for essentially rehabilitative and not penal purposes. In the words of Taylor J.A., unlike the sanctions faced by a convicted person, the scheme that addresses NCR accused "exacts no penalty, imposes no punishment and casts no blame": Blackman v. British Columbia (Review Board) (1995), 95 C.C.C. (3d) 412 (B.C.C.A.), at p. 433. Accordingly, a formalistic comparison of the "sentences" imposed on these two types of individuals belies a purposive understanding of the statutory provisions in issue.

 

R. v. Whittle
Supreme Court of Canada
[1994] 32 C.R. (4th) 1; [1994] 2 S.C.R. 914

The judgment of the Court was delivered by
SOPINKA J.:—

[The following is an overview of] the regime in place for the trial of persons alleged to suffer from mental disability. By virtue of s. 16 of the Criminal Code, persons suffering a disease of the mind in the circumstances defined in that section are exempted from criminal liability and punishment. The section embodies the policy of the law that such persons are sick as opposed to blameworthy and should be treated rather than punished. See R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1336. These persons are not, however, exempt from being tried. Part XX.1 of the Criminal Code contains detailed provisions providing for mental assessments by physicians and for determination of the fitness of persons suffering from mental disorders to stand trial. Section 672.23 provides that where, at any stage of the proceedings, the court believes on reasonable grounds that the accused is unfit to stand trial, it may direct the trial of that issue. The application can be made on the court's own motion or by the accused or the prosecutor. Many accused persons who are found not guilty by reason of a mental disorder are fit to stand trial. The fact that an accused is not criminally responsible within the meaning of s. 16 does not mean that he or she is unfit to stand trial. If the contrary were true there would be little purpose in providing for the plea authorized by s. 16. Most persons who suffered from the mental disorder defined in the section would be exempted from trial and would not get to plead until they had recovered subsequent to the date of the offence.

The test for fitness to stand trial is quite different from the definition of mental disorder in s. 16. It is predicated on the existence of a mental disorder and focuses on the ability to instruct counsel and conduct a defence. That test which was developed under the common law is now codified in s. 2 of the Code as follows:

2. ...
"unfit to stand trial" means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
(a ) understand the nature or object of the proceedings,
(b ) understand the possible consequences of the proceedings, or
(c ) communicate with counsel.

It requires limited cognitive capacity to understand the process and to communicate with counsel. In R. v. Taylor (1992), 77 C.C.C. (3d) 551 [17 C.R. (4th) 371], the Ontario Court of Appeal, after reviewing the authorities, held that the trial judge erred in concluding that the accused must be capable of making rational decisions beneficial to him. At p. 567 [C.C.C., p. 387 C.R.], Lacourcière J.A., on behalf of the court, stated:

The "limited cognitive capacity" test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have a trial within a reasonable time.

Accordingly, provided the accused possesses this limited capacity, it is not a prerequisite that he or she be capable of exercising analytical reasoning in making a choice to accept the advice of counsel or in coming to a decision that best serves her interests.

The rationale that operates to require an accused person to stand trial notwithstanding a disease of the mind has some attraction with respect to pre-trial procedures. If an accused is exempted from participation in normal investigatory procedures by reason of a mental disorder, then the regime that has been established for the treatment of persons who are mentally ill will frequently be bypassed.

 

* * *

Stephen, Criminal Code (Indictable Offenses) Bill, 1878

Section 20
Insanity

No act shall be an offence if the person who does it is at the time when it is done prevented, either by defective mental power or by any disease affecting his mind,

(a) from knowing the nature of his act;
(b) from knowing either that the act is forbidden by law or that it is morally wrong; or
(c) if such person was at the time when the act was done, by reason of any such cause as aforesaid, in such a state that he would not have been prevented from doing that act by knowing that if he did do it the greatest punishment permitted by law for such an offence would be instantly inflicted upon him, provided that this provision shall not apply to any person in whom such a state of mind has been produced by his own default.
An act may be an offence although the mind of the person who does it is affected by disease or is deficient in power, if such disease or deficiency does not in fact produce one or other of the effects above mentioned in reference to that act.

 

Criminal Code Bill Commission, 1879 Draft

Section 22
Insanity

If it be proved that a person who has committed an offence was at the time he committed the offence insane so as not to be responsible for that offence, he shall not therefore be simply acquitted, but shall be found not guilty on the ground of insanity.

To establish a defence on the ground of insanity, it must be proved that the offender was at the time when he committed the act labouring under natural imbecility or disease of or affecting the mind, to such an extent as to be incapable of appreciating the nature and quality of the act or that the act was wrong.

A person labouring under specific delusions but in other respects sane shall not be acquitted on the ground of insanity, unless the delusions caused him to believe in the existence of some state of things which if it existed would justify or excuse his act: Provided that insanity before or after the time when he committed the act, and insane delusions though only partial may be evidence that the offender was at the time when he committed the act in such a condition of mind as to entitle him to be acquitted on the ground of insanity.

Every one committing an offence shall be presumed to be sane until the contrary is proved.

 

Canadian Criminal Code, 1892

11. No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility, or disease of the mind, to such an extend as to render him incapable of appreciating the nature and quality of the act or omission, and of knowing that such act or omission was wrong.
2. A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity, under the provisions hereinafter contained, unless the delusions caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act or omission.
3. Every one shall be presumed to be sane at the time of doing or omitting to do any act until the contrary is proved.

 

Canadian Criminal Code (current)

Defence of mental disorder
16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

* * *

LRCC § 3(6)

* * *

MPC § 4.01

* * *

StGB § 20

 

 

      b. Defence (vs. Element of Liability vs. Symptom vs. Offense)

 

Regina v. Saxell
[1980] 33 O.R. (2d) 78; [1980] 59 C.C.C. (2d) 176

The judgment of the Court was delivered by
1     WEATHERSTON J.A.:— At trial of the appellant on a charge of having in his possession a weapon, to wit: a knife, for a purpose dangerous to the public peace, the Crown adduced evidence of his insanity, and after a trial over a lengthy period of time, Provincial Judge K. A. Langdon found that the appellant was insane at the time of the alleged offence, and declared that he was acquitted on account of insanity….       

In the present case the prosecution advanced evidence of the appellant's insanity. Mr. Ruby argued that in the circumstances of this case that procedure resulted in cruel and unusual punishment in that the appellant was denied his right to accept the risk of a short prison sentence, but instead was made liable to a term of indefinite detention. [D]etention of the accused is not punishment at all, but is for the protection of the public and the treatment of the accused.

It is true that the defence usually raises a plea of insanity only in the most serious cases, but even though the defence is not raised and the prosecution does not tender evidence, there may be sufficient evidence before the Court that the trial Judge is required to instruct the jury on that issue. That was the case in Cooper v. The Queen (1980), 51 C.C.C. (2d) 129, 110 D.L.R. (3d) 46, [1980] 1 S.C.R. 1149 (S.C.C.).

The prosecution in this case relied on R. v. Simpson (1977), 35 C.C.C. (2d) 337, 77 D.L.R. (3d) 507, 16 O.R. (2d) 129 (Ont. C.A.). That case has been misunderstood if it is thought to be authority for the proposition that the prosecution may adduce evidence of the insanity of the accused in any case. Martin J.A. makes it perfectly clear that such evidence may be adduced only with the leave of the presiding Judge, who might first see fit to hold a voir dire. The overriding consideration is that the interest of justice demands that the accused should not be convicted of the offence charged. There must be convincing evidence that the accused has committed the act alleged. Manifestly, it would be wrong if evidence of insanity were to influence the jury's decision on that issue, either by affecting his credibility in case he testified, or by leading to the conclusion that the accused was the sort of person likely to have committed the act.

The evidence of insanity at the time of commission of the act must be sufficiently substantial, and create such a grave question whether the accused had the capacity to commit the offence, that the interests of justice require it to be adduced.

Although not expressly so stated in the reasons for judgment in R. v. Simpson, supra, I consider that in exercising his discretion whether to permit the Crown to adduce evidence of the insanity of the accused, the Judge ought to have regard to the nature and seriousness of the offence alleged to have been committed and the extent to which the accused may be a danger to the public.

If the trial Judge exercises his discretion on the basis of these considerations, then the public interest outweighs any right the accused may have not to raise the defence of insanity.

 

R. v. Swain
Supreme Court of Canada
[1991] 63 C.C.C.(3d) 481; [1991] 1 S.C.R. 933

LAMER C.J.C.:—This case raises a number of issues regarding the operation of the insanity defence and the manner in which insanity acquittees are dealt with under our criminal law. This court has been asked to consider whether the provisions of the Criminal Code, R.S.C. 1970, c. C-34, which set out the legislative scheme relating to insanity acquittees are within Parliament's criminal law power and whether these provisions are inconsistent with the Canadian Charter of Rights and Freedoms. This court has also been asked to consider whether the common law rule which allows the Crown, in certain circumstances, to raise evidence of insanity over and above an accused's wishes is inconsistent with the Charter…

Analysis

Given that there are two separate constitutional challenges to s. 542(2), I will deal with constitutional Qq. 1, 4 and 5 following my analysis of Qq. 2 and 3.

1. Does it violate the Charter for the Crown to raise evidence of insanity over and above the wishes of the accused?

The appellant argues that the common law rule for permitting the Crown to adduce evidence of insanity over and above the accused's wishes, which was enunciated by the Ontario Court of Appeal in R. v. Simpson, supra, and R. v. Saxell, supra, violates s. 7 of the Charter. The interveners, the Canadian Disability Rights Council et al. (hereinafter "C.D.R.C."), support the appellant in challenging the constitutionality of the common law rule under s. 15 of the Charter.

It should be noted that this court has indicated, in R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd. (1986), 33 D.L.R. (4th) 174 at p. 191, [1986] 2 S.C.R. 573, 38 C.C.L.T. 184, that in cases where the Charter is generally applicable to the litigation in question (within the meaning of s. 32), the Charter applies to common law rules as well as to statutes and regulations…

Therefore, if a common law rule is inconsistent with the provisions of the Constitution, it is, to the extent of the inconsistency, of no force or effect (s. 52(1)). Having said that, I will begin by considering the appellant's argument under s. 7.

Section 7

For ease of reference, I have reproduced the text of s. 7 below:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In order to invoke the protection of s. 7, an individual must establish an actual or potential deprivation of life, liberty or security of the person. Once a life, liberty, or security of the person interest is established, the question becomes whether the deprivation of liberty or security of the person is or is not in accordance with the principles of fundamental justice.

In my view, the liberty interest of Mr. Swain is readily apparent in the case at bar. The common law rule allows the Crown, in certain circumstances, to raise evidence of the accused's insanity over and above the wishes of the accused. If the Crown is successful in establishing that the accused is insane, within the meaning of s. 16 of the Code, the accused will be subject to the legislative scheme, contained in ss. 542 to 547 of the Code, which provides for warrants of the Lieutenant-Governor of the province. This means that the accused will be detained in strict custody until the pleasure of the Lieutenant-Governor of the province is known. Depending on the order of the Lieutenant-Governor, the accused may continue to be detained indefinitely, subject to periodic reviews (where a board of review has been appointed). The details of the L.G.W. system will be discussed in greater length below. I have given this brief overview simply to illustrate that when the Crown raises the issue of insanity, the liberty of the accused is clearly imperilled. That being so, it is necessary to address the issue of whether the deprivation of liberty is in accordance with the principles of fundamental justice.

In Reference re s. 94(2) of Motor Vehicle Act (1985), 23 C.C.C. (3d) 289 at pp. 302 and 310, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486, it was stated:

…the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system.…

Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.

It is therefore necessary to consider whether it is inconsistent with the basic tenets of our legal system for the Crown to be able to adduce evidence of insanity over and above the wishes of the accused.

The appellant argues that it is a principle of fundamental justice that an accused person be able to participate in a meaningful way in his or her defence and to make fundamental decisions about the conduct of his or her defence—such as waiving the defence of insanity. (I pause here to note that I will use the term "defence" in the broad sense of "any answer which defeats a criminal charge"; see my reasons for judgment in R. v. Chaulk (1990), 62 C.C.C. (3d) 193, [1991] 2 W.W.R. 385, 119 N.R. 161.) It is argued that the functioning of the adversarial system is premised on the autonomy of an accused to make fundamental decisions about his or her defence which require certain consequences and risks to be weighed. The appellant's argument is reflected in the words of Stewart J. in Faretta v. California, 422 U.S. 806 at p. 834 (1975) (Calif. C.A.):

The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defence ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law".

This court has, on numerous occasions, acknowledged that the basic principles underlying our legal system are built on respect for the autonomy and intrinsic value of all individuals. In Reference re s. 94(2) of Motor Vehicle Act, supra, at p. 302, I referred to the principles of fundamental justice as

. . . essential elements of a system for the administration of justice which is founded upon a belief in "the dignity and worth of the human person" (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III), and on "the rule of law" (preamble to the Canadian Charter of Rights and freedoms).
Similarly, in R. v. Morgentaler (1988), 37 C.C.C. (3d) 449 at p. 554, 44 D.L.R. (4th) 385, [1988] 1 S.C.R. 30, Wilson J. stated:

In my opinion, the respect for individual decision-making in matters of fundamental personal importance reflected in the American jurisprudence also informs the Canadian Charter. Indeed, as the Chief Justice pointed out in R. v. Big M Drug Mart Ltd., beliefs about human worth and dignity "are the sine qua non of the political tradition underlying the Charter".

This court has also recognized the constructs of the adversarial system as a fundamental part of our legal system. In Borowski v. Canada (Attorney-General) (1989), 47 C.C.C. (3d) 1 at p. 13, 57 D.L.R. (4th) 231, [1989] 1 S.C.R. 342, Sopinka J., in analyzing the doctrine of mootness, stated:

The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in the adversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. …

Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice must also require that an accused person have the right to control his or her own defence. The appellant has properly pointed out that an accused will not be in the position of choosing whether to raise the defence of insanity at his or her trial unless he or she is fit to stand trial. If at any time before verdict there is a question as to the accused's ability to conduct his or her defence, the trial judge may direct that the issue of fitness to stand trial be tried before matters proceed further: see Criminal Code, s. 543, now s. 615. Thus, an accused who has not been found unfit to stand trial must be considered capable of conducting his or her own defence.

An accused person has control over the decision of whether to have counsel, whether to testify on his or her own behalf, and what witnesses to call. This is a reflection of our society's traditional respect for individual autonomy within an adversarial system. In R. v. Chaulk, supra, I indicated that the insanity defence is best characterized as an exemption to criminal liability which is based on an incapacity for criminal intent. In my view, the decision whether or not to raise this exemption as a means of negating criminal culpability is part and parcel of the conduct of an accused's over-all defence.

The question remains, does the ability of the Crown to raise evidence of insanity over and above the accused's wishes interfere with the accused's control over the conduct of his or her defence?

The mere fact that the Crown is able to raise a defence which the accused does not wish to raise, and thereby to trigger a special verdict which the accused does not wish to trigger, means that the accused has lost a degree of control over the conduct of his or her defence. In my view, this in itself is sufficient to answer the question posed above. However, the appellant has argued that an accused's control over his or her defence is threatened in a more immediate sense when the Crown is able to independently raise the issue of insanity. The appellant contends that the Crown's ability to raise insanity permits the prosecution to place an accused in a position where inconsistent defences must be advanced, discredits and undermines the accused's credibility so that other defences are prejudiced, and has a tendency to leave the jury with the impression that the accused is, because of mental illness, the "type of person" who would have committed the offence.

It is not difficult to see that the Crown's ability to raise independently the issue of insanity could very well interfere with other defences being advanced by the accused. For example, an accused who wishes to defend on the basis of alibi could very well be thwarted in this approach by the Crown's raising the inconsistent defence of insanity. It is also apparent that