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 * * * 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. * * * 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 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: * * * Wolfgang Naucke, “An Insider’s
Perspective on the Significance of the German Criminal
Law Theory’s General System for Analyzing Criminal
Acts,” 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. * * * LRCC ch. 3, comment * * * 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. * * * Patterson v. New York MR. JUSTICE WHITE delivered the opinion of the Court. [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.
* * * R. v. Whyte [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. R. v. Brennan The judgment of the Court was delivered by 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 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. Three issues were argued on the appeal: … Section 25 of the Code provides: 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. … 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): 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.): 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. 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: 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 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. For the foregoing reasons, I would dismiss the appeal and
affirm the appellant’s conviction. * * * LRCC § 3(13) * * * MPC §§ 3.03, 3.07 Canadian Foundation for Children,
Youth and the Law v. Canada (Attorney General)
The judgment of McLachlin C.J. and Gonthier, Iacobucci,
Major, Bastarache and LeBel JJ. was delivered by 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. (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. 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. … 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). 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 106 The Court
has repeatedly stated that 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. 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. … 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…. 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). 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 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. 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. … 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. 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. 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. 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). * * * LRCC § 3(14) * * * MPC § 3.08 R. v. Pétel LAMER C.J.:— 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. Criminal Code, R.S.C., 1985, c. C-46 34. . .
. 265. (1) A person commits an assault
when 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. 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. Foliamb's
Case, Trin. 43 Eliz. R. v. McIntosh The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci
and Major JJ. was delivered by 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. Criminal Code, R.S.C., 1985, c. C-46 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. 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 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. 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. 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. (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). 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. . . . 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…. 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: 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. (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…. 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. 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. 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. 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 [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.] 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: Martin J.A. concluded, at p. 111: … 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. 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." * * * * * R. v. Lavallee DICKSON C.J.C. and LAMER J. concur with WILSON J. 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: 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 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: 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. … 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 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? 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. 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: 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): 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.) 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: 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: 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. Q. How did they react during the tension that preceded
the beatings? How would her. . . 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: 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. 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: 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: 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. 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: 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. 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: 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 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: 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? 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: 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 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: I would accordingly allow the appeal, set aside the order
of the Court of Appeal, and restore the acquittal. R. v. Deegan HARRADENCE J.A:— … 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: 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: 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: 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 The judgment of the Court was delivered by R. v. Webers 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…. 44 Section 37 of the Criminal
Code reads: 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.… It has been extended to "even as between strangers" in Duffy,
supra, where Edmund Davies, J., says at p. 71: 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.… R. v. Baxter The judgment of the Court was delivered by 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. 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: 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.) 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. 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
R. v. Jobidon 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. 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. 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): He later adds at p. 472 that: 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. 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). 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. 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: 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. 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… 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. 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. 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. … 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: 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).) 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) 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. 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). 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) 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 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 (ii) The Canadian Position 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. 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: 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. 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 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… 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. McLACHLIN J. (Gonthier J. concurring):— 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. … 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. 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. 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. 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. 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: 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. 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. . . . 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. (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. 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. 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. 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. 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. 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…. Criminal Code, R.S.C., 1985, c. C‑46 265. (1) A person commits an
assault when 268. (1) Every one commits
an aggravated assault who wounds, maims, disfigures or
endangers the life of the complainant. 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. 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. 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. 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. 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. 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. 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. 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. 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. R. v. Ewanchuk The judgment of Lamer C.J. and Cory, Iacobucci, Major,
Bastarache and Binnie JJ. was delivered by; 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. 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? 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. 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. to the complainant’s silence when subjected to sexual
contact by the respondent; - The defence of mistake of fact had no application to
the issue of ‘consent’ in this case. 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. … 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 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. (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. . . . 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: 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: 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 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. 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. 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 The judgment of the Court was delivered by 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. 265.(1) A person commits an assault
when 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 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. 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. … 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. 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 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. …
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. * * * * * * LRCC § 1(2) * * * MPC § 2.11 The Queen v. Dudley and Stephen
[see supra
vol. 1] * * * R. v. Perka 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. 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. 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: 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: 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: 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. 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.” 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. 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. 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”. 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. 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. 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. 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. 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: 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. 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. It is now possible to summarize a number of conclusions
as to the defence of necessity in terms of its nature,
basis and limitations: 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. 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. … 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. 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. 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 JUDGMENT By The Court: 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. “... 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. (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: “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. “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. “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. * * * * * * MPC § 3.02 * * * StGB § 34
(Necessity as Justification)
1. Insanity
a. Definition R. v. Cooper 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. 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”. 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. 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: 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): 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. 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.… 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 The judgment of the court was delivered by McINTYRE
J.:— 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 The judgment of the court was delivered by
DICKSON J.:— 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). 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): 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 . . . 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. 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) The judgment of the Court delivered by [“[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.”] 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 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? 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.] 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: 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. 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 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. 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. 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 The judgment of Dickson C.J. and Lamer C.J. and La Forest
and Cory JJ. was delivered by …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.) “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.… …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): …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. 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. 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 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.… 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. 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.” 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) The judgment of Lamer C.J. and Cory, McLachlin,
Iacobucci, Major, Bastarache and Binnie JJ. was delivered
by 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. 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. 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". 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: 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). 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. … 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. 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. 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. … [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. 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.…. 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"? 63 This brings us to the question
of whether s. 672.54, properly interpreted, violates the
NCR accused's rights under 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. 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. R. v. Whittle The judgment of the Court was delivered by 2. ... 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 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, Criminal Code Bill Commission, 1879
Draft 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. 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. Canadian Criminal Code (current) Defence of mental disorder * * * LRCC § 3(6) * * * MPC § 4.01 * * * StGB § 20 b. Defence
(vs. Element of Liability vs. Symptom vs. Offense) Regina v. Saxell The judgment of the Court was delivered by 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. 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. 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 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… 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. 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: 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. 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.): 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 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: 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 |