Criminal Law Web

Chapter 13. Justification

A.        Concepts and Types of Defence

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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LRCC ch. 3, comment

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

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

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

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

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

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

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

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

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

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

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

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

 

B.        Protection of Persons Administering and Enforcing the Law

 

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

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

The appeal

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

The facts

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

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

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

The issues

Three issues were argued on the appeal:

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

Classification of the offence


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

Section 25(1) of the Code

Section 25 of the Code provides:

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

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

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


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

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

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

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

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

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

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

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

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

The constable at common law

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

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

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

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

I respectfully agree with his analysis and with his conclusion.

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

Disposition

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

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LRCC § 3(13)

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MPC §§ 3.03, 3.07

C.        Persons in Authority

 

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

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

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

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

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

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

C. Vagueness…

(1) Vagueness

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

(a) The Standard for "Vagueness"

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

5. The Violation of Human Dignity

106     The Court has repeatedly stated that

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

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

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

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

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

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

6. The Section 1 Justification

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

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

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

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

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

7. Disposition

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

The following are the reasons delivered by

ARBOUR J. (dissenting):—

I. Introduction

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

Analysis

(4) Remedy

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

(5) The Defence of Necessity

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

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

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

(6) The Defence of De Minimis

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

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

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

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

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LRCC § 3(14)

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MPC § 3.08

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

 

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

LAMER C.J.:

I.         Facts

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

II.        Applicable Legislation

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

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

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

V.        Analysis

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

VI.       Conclusion

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

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


* * *

Foliamb's Case, Trin. 43 Eliz.


* * *

 

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

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

I.         Factual Background

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

II.        Relevant Statutory Provisions

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

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

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

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

37.(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

IV.       Analysis

A.        Introduction

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

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

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

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

(i)         Section 34(2) is not ambiguous

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C.        Section 37 of the Criminal Code

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

37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

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

D.        Conclusion

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

 

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

 

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

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

1. The facts

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Relevant legislation

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

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

4. Issues on appeal

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

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

5. Analysis

(i) Admissibility of expert evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. Reasonable apprehension of death

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Lack of alternatives to self-help

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



 

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

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

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

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

I am in complete agreement with this statement.

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

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

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

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

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

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




R. v. Forde

Ontario Court of Appeal

[2011] ONCA 592

 

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

 

Overview

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

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

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

 

Background

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

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

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

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

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

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

 

Issues

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

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

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

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

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

 

Analysis

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

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

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

 

Ability to Retreat

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

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

The following exchange then occurred in cross:

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

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

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

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

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

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

 

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

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

 

Discussion

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

Disposition

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

 

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

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

 

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

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

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

44     Section 37 of the Criminal Code reads:

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

* * *

First Session, Forty-first Parliament,

60-61 Elizabeth II, 2011-2012

The House of Commons of Canada

Bill C-26

 

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

[Assented to 28th June, 2012]

 

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

 

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

 

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

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

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

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

 

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

(a) the nature of the force or threat;

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

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


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

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

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

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

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

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

 

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

 

DEFENCE OF PROPERTY

 

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

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

(b) they believe on reasonable grounds that another person

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

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

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

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

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

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

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

 

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

 

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


* * *

LRCC § 3(10)

* * *

MPC § 3.04

* * *

StGB §§ 32-33

E.        Consent

 

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

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

Facts

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

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

1. General Principles of the Criminal Law

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

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

He later adds at p. 472 that:

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

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

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

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

2. Interpretation of Section 265

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

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

Application to this Appeal

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

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

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

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

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

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

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

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

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

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

I — Statement of Facts

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

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

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

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

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

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

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

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

Issues on Appeal

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

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

Appellant’s Arguments

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

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

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

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

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

Respondent’s Arguments

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

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

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

II — Analysis

…       

3. The Role and Scope of Consent in Assault

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(d)  Summary of the Common Law

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

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

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

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

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

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

(e)  Policy Considerations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(f)  Conclusion

How, and to what extent is consent limited?

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

McLACHLIN J. (Gonthier J. concurring):—

I. Introduction

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

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

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

III. The Issues

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

IV. Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) A Smaller, Incremental Change Can Be Made

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

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

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

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

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

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

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

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

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

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

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

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

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

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

V. Conclusion

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

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

I. Factual Background

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

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

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

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

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

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

III. Relevant Statutory Provisions

Criminal Code, R.S.C., 1985, c. C‑46

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

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

IV. Analysis

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

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

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

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

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


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

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

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

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

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

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

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

B. How Has Fraud Been Defined?

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

I.  Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

II. Judicial History

A.  Court of Queen’s Bench

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

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

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

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

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

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

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

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

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

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

III.   Analysis

A. Appealable Questions of Law


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

B. The Components of Sexual Assault

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

(1)  Actus Reus

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

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

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

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

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

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

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

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

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

(a)  ”Implied Consent”

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

(b)  Application to the Present Case

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

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

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

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

(c)  Effect of the Complainant’s Fear

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

265. . . .

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

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

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

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

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

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

(2)  Mens Rea

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)  Limits on Honest but Mistaken Belief in Consent

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

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

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

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

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

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

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

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

(c)  Application to the Facts

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

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

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

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

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

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

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

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

IV.  Summary

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

WHERE BELIEF IN CONSENT NOT A DEFENCE.

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


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

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

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




R. v. J.A.

Supreme Court of Canada

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

 

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

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

 

I. Facts

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

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

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

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

 

III. Analysis

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

 

B. Framework of Sexual Assault

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

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

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

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

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

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

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

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

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

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

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

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

 

D. The Concept of Consent in the Jurisprudence

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

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

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

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

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

 

The Arguments to the Contrary

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

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

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

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

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

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

 

IV. Summary

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

 

V. Disposition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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LRCC § 1(2)

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MPC § 2.11

F.         Necessity (Balance of Evils)

 

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

[see supra vol. 1]

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

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

I. Facts

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

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

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

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

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

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

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

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

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

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

II. The necessity defence

(a) History and background

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) The conceptual foundation of the defence

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) Limitations on the defence

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

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

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

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

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

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

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

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

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

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

(d) Illegality or contributory fault

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(e) Onus of proof

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

The Crown argues, however, that s. 7(2) of the Narcotic Control Act shifts the burden of persuasion to the accused.

Section 7(2) provides:

7.(2) In any prosecution under this Act the burden of proving than an exception, exemption, excuse or qualification prescribed by law operates in favour of the accused is on the accused, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, excuse or qualification does not operate in favour of the accused, whether or not it is set out in the information or indictment.

The Crown contends that the defence of necessity is an “exception, exemption, excuse or qualification prescribed by law”. I find no merit in this contention.

The Narcotic Control Act provides for several statutory exceptions to its broad prohibitions against importation, sale, manufacture and possession. The c fences created by the Act are generally subject to the proviso that the accused not have been acting under the authority of the Act or the regulations thereunder. See ss. 3(1) (possession), 5(1) (importation) and 6(1) (cultivation). Section 12 of the Act implements this scheme by providing for a set of regulations governing the issuance of licences for, inter alia, the importation, sale, manufacture or possession of narcotics. One who sells, imports, manufactures or possesses narcotics pursuant to such authority does not commit an offence.

It seems clear that it is to these statutory exceptions that s. 7(2) refers, and not to common law defences such as necessity. One who wishes to plead the possession of a licence or other lawful authority in response to a charge of importation bears, under s. 7(2), the burden of persuading the trier of fact that such licence exists. One who pleads necessity bears no such burden. Section 7(2) does not place a persuasive burden as to the defence of necessity on the accused.

(f) Preliminary conclusions as to the defence of necessity

It is now possible to summarize a number of conclusions as to the defence of necessity in terms of its nature, basis and limitations:

  1. the defence of necessity could be conceptualized as either a justification or an excuse;
  2. it should be recognised in  Canada as an excuse, operating by virtue of s. 7(3) of the Criminal Code;
  3. necessity as an excuse implies no vindication of the deeds of the actor;
  4. the criterion is the moral involuntariness of the wrongful action;
  5. this involuntariness is measured on the basis of society’s expectation of appropriate and normal resistance to pressure;
  6. negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity;
  7. actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle;
  8. the existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law;
  9. the defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril;
  10. where the accused places before the court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt.

(g) The judge’s charge

The trial judge concluded that there was before him an adequate body of evidence to raise the issue of necessity and proceeded to direct the jury with respect to the defence. As I have earlier indicated, the Crown disputes whether the defence was open to the accused in the circumstances of the case and submits further that if it was in fact available, the trial judge erred in his direction.

In my view, the trial judge was correct in concluding that on the evidence before him he should instruct the jury with regard to necessity. There was evidence before him from which a jury might conclude that the accused’s actions in coming ashore with their cargo of cannabis were aimed at self-preservation in response to an overwhelming emergency. I have already indicated that in my view they were not engaged in conduct that was illegal under Canadian criminal law at the time the emergency arose, and that even if they were, that fact alone would not disentitle them to raise the defence. The question then becomes whether the trial judge erred in charging the jury in the terms that he did.

The summary of conclusions with regard to necessity in the foregoing section indicates that for the defence to succeed, an accused’s actions must be, in the relevant sense, an “involuntary” response to an imminent and overwhelming peril. The defence cannot succeed if the response was disproportional to the peril or if it was not “involuntary” in the sense that the emergency was not “real” or not imminent or that there was a reasonable alternative response that was not illegal.

In the course of his charge on the issue of necessity the trial judge instructed the jury, using the specific words that appear in Morgentaler v. The Queen (1975), 20 C.C. C. (2d) 449, 53 D. L. R. (3d) 161, [1976] 1 S.C.R. 616, to the effect that they must find facts which amount to “an urgent situation of clear and imminent peril when compliance with the law is demonstrably impossible” in order for the appellants’ non-compliance with the law against importation and possession of cannabis to be excused. That is the correct test. It is, with respect, however, my view that in explaining the meaning and application of this test, the trial judge fell into error.

The trial judge was obliged, in my opinion, to direct the jury’s attention to a number of issues pertinent to the test for necessity. Was the emergency a real one? Did it constitute an immediate threat of the harm purportedly feared? Was the response proportionate? In comparing this response to the danger that motivated it, was the danger one that society would reasonably expect the average person to withstand? Was there any reasonable legal alternative to the illegal response open to the accused? Although the trial judge did not explicitly pose each and every one of these questions in my view his charge was adequate to bring the consideration underlying them to the jury’s attention on every issue except the last one, the question of a reasonable alternative.

This issue was the determining obstacle to the success of the defence of necessity in a number of the cases referred to earlier, including R. v. Gilkes (1978), 8 C.R. (3d) 159; R. v. Doud (1982), 18 M.V.R. 146; R. v. Byng (1977), 20 N.S.R. (2d) 125, and for the present case most notably, because of the similarity of its factual basis, R. v. Salvador, Wannamaker, Campbell and Nunes (1981), 59 C.C.C. (2d) 521, 21 C.R. (3d) 1, 45 N.S.R. (2d) 192 (N.S.S.C.A.D.). Indeed, in most cases where the defence is raised this consideration will almost certainly be the most important one.

In his charge, the trial judge did not advert to this requirement. He did tell the jury that they must find facts capable of showing  that “compliance with the law was demonstrably impossible. . .” but on his recharge he put before the jury a significantly different test. The test, he said, is:

. . . can you find facts from this evidence, and that means all the evidence, of course, that the situation of the Samarkanda at sea was so appallingly dire and dangerous to life that a reasonable doubt arises as to whether or not their decision was justified?

And again, at the conclusion of the recharge:

There is no need for the evidence to show you that a certainty of death would result unless the action complained of by the Crown was taken. It doesn’t go so far as that. You have to look at it as reasonable people and decide on any reasonable view of the matter, would these people have been justified in doing what they did? That is all that necessity means.

Both of these passages imply that the crucial consideration was whether the accused acted reasonably in coming into shore with their load of cannabis rather than facing death at sea. That is not sufficient as a test. Even if it does deal with the reality of the peril, its imminence and the proportionality of putting into shore, it does not deal at all with the question of whether there existed any other reasonable responses to the peril that were not illegal. Indeed, aside from the initial repetition of the Morgentaler formula, the trial judge did not advert to this consideration at all, nor did he direct the jury’s attention to the relevance of evidence indicating the possibility of such alternative courses of action. In these respects I believe he erred in law. He did not properly put the question of a “legal way out” before the jury.

In my view, this was a serious error and omission going to the heart of the defence of necessity. The error justifies a new trial. …

V Conclusion

On the basis of all the above, it is my conclusion that the Court of Appeal was correct in the result in ordering a new trial and was correct in sustaining the trial judge’s decision to withhold the botanical defence from the jury.

I would dismiss the appeals.

WILSON J.:—The factual background of this case, the history of the litigation in the courts below and the grounds on which the appeal was taken in this Court are very fully set out in the reasons for judgment of the Chief Justice (Dickson J. at the date of the hearing) and it is not necessary for me to repeat them. Indeed, inasmuch as the Chief Justice’s conclusion as to the defence of necessity seems clearly correct on the facts of this case and his disposition of the appeal manifestly just in the circumstances, I am dealing in these reasons only with the proposition very forcefully advanced by the Chief Justice in his reasons that the appropriate jurisprudential basis on which to premise the defence of necessity is exclusively that of excuse. My concern is that the learned Chief Justice appears to be closing the door on justification as an appropriate jurisprudential basis in some cases and I am firmly of the view that this is a door which should be left open by the court.

As the Chief Justice points out, criminal law theory recognizes a distinction between justification and excuse. In the case of justification the wrongfulness of the alleged offensive act is challenged in the case of excuse the wrongfulness is acknowledged but a ground for the exercise of judicial compassion for the actor is asserted. By way of illustration, an act may be said to be justified when an essential element of the offence is absent, so that the defence effectively converts the accused’s act from wrongful to rightful. Accordingly, those defences which serve to establish a lack of culpable intent on the part of the accused, or which demonstrate that, although the accused intended to commit the act, the act was one which the accused was within his rights to commit, may be labelled justification in so far as they elucidate the innocent nature of the act giving rise to the charge. Such doctrines as mistake of fact, automatism, etc., which, in the words of Lord Hailsham of St. Marylebone in Director of Public Prosecutions v. Morgan, [1975] 2 All E.R. 347 (H.L.), are raised in order to “negative” mens rea, may be appropriately placed in this category as they are invoked in order to undermine the very ingredient of culpability. Similarly, the accused who claims to have acted out of self-defence or provocation in utilizing aggressive force against another individual raises a justificatory defence in that he asserts the essential rightfulness of his aggressive act.

On the other hand, an excuse requires the court to evaluate the presence or absence of the accused’s will. In contemporary jurisprudence the most forceful champion of excuse in criminal law has been Professor George Fletcher who has advocated a trend toward individualizing the conceptual basis for culpability so that all circumstances subjectively relevant to the accused be considered by the court. As such, the jury is requested to exercise compassion for the accused’s predicament in its evaluation of his claim: “I couldn’t help myself “: Fletcher, “The Individualization of Excusing Conditions”, 47 So. Cal. L.R. 1264 at p. 1269 (1974). This type of analysis is reflected in the dissent of Seiler J. of the Supreme Court of Missouri in State of Missouri v. Green (1971), 470 S.W. 2d 565, in which the accused’s prison escape was seen as excusable due to the intolerability of his confinement with aggressive homosexual inmates by whom he had been repeatedly victimized. The basis of the defence could not have been that of justification based on an objective balance of evils since numerous United States courts had already established that the evil of prison escape outweighed the evil of intolerable prison conditions: see, e.g., People v. Whipple (1929), 279 P. 1008 (Cal.); People v. Noble (1969), 170 N.W. 2d 916 (Mich. App.). Rather, the issue for Seiler J. was the blamelessness of an accused in committing an act which, although admittedly wrong, was one for which any juror might have compassion. Thus, the nature of an excuse is to personalize the plea so that, while justification looks to the rightness of the act, excuse speaks to the compassion of the court for the actor.

As Chief Justice Dickson points out, although the necessity defence has engendered a significant amount of judicial and scholarly debate, it remains a somewhat elusive concept. It is, however, clear that justification and excuse are conceptually quite distinct and that any elucidation of a principled basis for the defence of necessity must be grounded in one or the other.

Turning first to the category of excuse, the concept of “normative involuntariness” stressed in the reasons of the Chief Justice may, on one reading, be said to fit squarely within the framework of an individualized plea which Professor Fletcher indicates characterizes all claims of excusability. The notional involuntariness of the action is assessed in the context of the accused’s particular situation. The court must ask not only whether the offensive act accompanied by the requisite culpable mental state (i.e., intention, recklessness, etc.) has been established by the prosecution, but whether or not the accused acted so as to attract society’s moral outrage. In some United States jurisdictions this type of evaluation has been utilized to excuse from criminal liability individuals who commit intentional offensive acts but who operate under mental or sociological impairments with which one can sympathize (see State v. St. Clair (1953), 262 S.W. 2d 25 (Mo. S.C.)), or to form the theoretical basis for a defence where the accused confronted a desperate situation for which society might well be expected to express its compassion: see United States v. Holmes (1842), 26 Fed. Cas. 360 (E.D. Pa.). In evaluating a claim of “normative involuntariness” we seem to be told that the individual’s criminally wrongful act was nevertheless blameless in the circumstances.

The position in English law, by contrast, was most accurately stated in the well-known case of R. v. Dudley and Stephens (1884), 14 Q.B.D. 273, in which Lord Coleridge C.J. warned [at p. 288] against allowing “compassion for the criminal to change or weaken in any manner the legal definition of the crime”. The underlying principle here is the universality of rights, that all individuals whose actions are subjected to legal evaluation must be considered equal in standing. Indeed, it may be said that this concept of equal assessment of every actor, regardless of his particular motives or the particular pressures operating upon his will, is so fundamental to the criminal law as rarely to receive explicit articulation. However, the entire premise expressed by such thinkers as Kant and Hegel that man is by nature a rational being, and that this rationality finds expression both in the human capacity to overcome the impulses of one’s own will and in the universal right to be free from the imposition of the impulses and will of others (see Hegel’s Philosophy of Right (Knox, translator, 1952), at pp. 226-7) supports the view that an individualized assessment of offensive conduct is simply not possible. If the obligation to refrain from criminal behaviour is perceived as a reflection of the fundamental duty to be rationally cognizant of the equal freedom of all individuals, then the focus of an analysis of culpability must be on the act itself (including its physical and mental elements) and not on the actor. The universality of such obligations precludes the relevance of what Fletcher refers to as “an individualized excusing condition”.

On the other hand, the necessity of an act may be said to exempt an actor from punishment, since the person who acts in a state of what the Chief Justice calls “normative involuntariness” may be viewed as having been moved to act by the instinct for self-preservation. If so, the defence does not invoke the court’s compassion but rather embodies an implicit statement that the sanction threatened by the law (i.e., future punishment in one form or another) could never overcome the fear of immediate death which the accused faced. Accordingly, in such a case the law is incapable of controlling the accused’s conduct and responding to it with any punishment at all. Although such an act dictated by the necessity of self-preservation is a voluntary one (in the normal sense of the word), its “normative involuntariness” (in the sense that the actor faced no realistic choice) may form the basis of a defence if this is conceived as based on the pointlessness of punishment rather than on a view of the act itself as one the accused was entitled to commit. Indeed, one finds an explicit warning to this effect in Kant, The Metaphysical Elements of Justice (Ladd, translator, 1965), pp. 41-2, where it is asserted that “through a strange confusion among jurists” the analysis of the wrongfulness of an act is often intertwined with the unquestionable futility of inflicting punishment on a person who has acted in despair or in circumstances of dire necessity.

It may be opportune at this point to comment briefly on the need to avoid slipping into what may be labelled an “instrumentalist analysis” of the purposes of punishment. For example, an analytic focus on excusing conditions is often premised on the fact that punishment in such situations will not serve the further goals of deterrence, rehabilitation, etc.: see, e.g., Williams, Criminal Law: The General Part, 2nd ed. (1961), pp. 738-9. Such considerations, however, cannot form the basis of an acceptable defence since they seem to view criminal culpability merely as a phenomenon in a chain of cause and effect. From an instrumentalist point of view the question is not whether liability is demanded in and of itself (as Lord Coleridge C.J. insisted must be the case in Dudley and Stephens, supra), but rather whether the infliction of punishment will have some positive consequential effect: see, e.g., J. Bentham, An Introduction to the Principles of Morals and Legislation, 2nd ed. (1823), vol. II, p. 1.

The view of criminal liability as purposive only when it serves as a means to a further end is inherently problematic since the further goals of punishment are by their very nature one step removed from the determination of guilt or innocence. Just as we do not inquire into the socio-economic effects of a particular remedy for determining parties’ respective rights in civil litigation (see, e.g., Shelfer v. City of London Electric Lighting Co., [1895] 1 Ch. 287 (C.A.), it does not seem possible to evaluate criminality with regard to the end results which punishment will or will not achieve. Accordingly, if the basis for the accused’s defence is reducible to compassion for his individual attributes or predicament, or the ineffectiveness of punishment in rehabilitating him or deterring future acts, the question raised is the type of remedy and the fashioning of an appropriate sentence. The concerns embodied in such a defence are legitimately addressed to the sentencing process but cannot, in my view, be the basis of a successful defence leading to an acquittal.

This, however, is distinguishable from the situation in which punishment cannot on any grounds be justified, such as, the situation where a person has acted in order to save his own life. As Kant indicates, although the law must refrain from asserting that conduct which otherwise constitutes an offence is rightful if done for the sake of self-preservation, there is no punishment which could conceivably be appropriate to the accused’s act. As such, the actor falling within the Chief Justice’s category of “normative involuntariness” is excused, not because there is no instrumental ground on which to justify his punishment, but because no purpose inherent to criminal liability and punishment —i.e., the setting right of a wrongful act—can be accomplished for an act which no rational person would avoid.

Returning to the defence of necessity as a justification, it may generally be said that an act is justified on grounds of necessity if the court can say that not only was the act a necessary one but it was rightful rather than wrongful. When grounded on the fundamental principle that a successful defence must characterize an act as one which the accused was within his rights to commit, it becomes immediately apparent that the defence does not depend on the immediacy or “normative involuntariness” of the accused’s act unless, of course, the involuntariness is such as to be pertinent to the ordinary analysis of mens rea. The fact that one act is done out of a sense of immediacy or urgency and another after some contemplation cannot, in my view, serve to distinguish the quality of the act in terms of right or wrong. Rather, the justification must be premised on the need to fulfil a duty conflicting with the one which the accused is charged with having breached.

In discussing justification based on a conflict of duties one must be mindful of the viewpoint expressed by Dickson J. (as he then was) in Morgentaler v. The Queen (1975), 20 C.C.C. (2d) 449 at p. 497, 53 D.L.R. (3d) 161 at p. 209, [1976] 1 S.C.R. 616 at p. 678, to the effect that “[n]o system of positive law can recognize any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value”. This statement, in my view, is clearly correct if the “higher social value” to which the accused points is one which is not reflected in the legal system in the form of a duty. That is to say, pursuit of a purely ethical “duty” such as, for example, the duty to give to charity, may represent an ethically good or virtuous act but is not within the realm of legal obligations and cannot therefore validly be invoked as a basis on which to violate the positive criminal law. This illustration exemplifies the essential proposition that although “a morally motivated act contrary to law may be ethically justified . . . the actor must accept the [legal] penalty for his action”: United States v. Moylan (1969), 417 F. 2d 1002 at p. 1008 (4th Cir. ).

Similarly, the Chief Justice in his reasons for judgment in the present case correctly underlines the fact that a utilitarian balancing of the benefits of obeying the law as opposed to disobeying it cannot possibly represent a legitimate principle against which to measure the legality of an action since any violation of right permitted to be justified on such a utilitarian calculus does not, in the Chief Justice’s words, “fit[] well with the judicial function”. The maximization of social utility may well be a goal of legislative policy but it is not part of the judicial task of delineating right and wrong. The case of Southwark London Borough Council v. Williams et al., [1971] Ch. 734, [1971] 2 All E.R., 175 (C.A.), affords an appropriate illustration. In raising a defence of necessity to a charge of trespass the defendants implicitly argued that a violation of the rights of the property owner was justified because of the maximized social utility achieved by their using the property in that otherwise the defendants would remain homeless and the property unused. Lord Justice Megaw recognized that it was no part of the adjudicator’s task either to maximize utility or distribute scarce resources on some criterion of merit as demanded by the defendants since the distribution of society’s resources is a political process that must be accomplished by a distributive mechanism encompassing the entire policy. Lord Denning M.R. pointed out that if such claims became a matter of right for an adjudicative body to determine and enforce, the very notion of right would be undermined. He said at p. 179: “If homelessness were once admitted as a defence to trespass, no one’s house could be safe.”

Accordingly, not only can the system of positive law not tolerate an individual opting to act in accordance with the dictates of his conscience in the event of a conflict with legal duties, but it cannot permit acts in violation of legal obligations to be justified on the grounds that social utility is thereby increased. In both situations the conflicting “duty” to which the defence arguments point is one which the court cannot take into account as it invokes considerations external to a judicial analysis of the rightness or wrongness of the impugned act. As Lord Coleridge C.J. succinctly put it in Dudley and Stephens, supra, at p. 287: “Who is to be the judge of this sort of necessity?”

On the other hand, in some circumstances defence counsel may be able to point to a conflicting duty which courts can and do recognize. For example, one may break the law in circumstances where it is necessary to rescue someone to whom one owes a positive duty of rescue (see R. v. Walker) (1979), 48 C.C.C. (2d) 126, 5 M.V.R. 114 (Ont. Co. Ct.)), since failure to act in such a situation may itself constitute a culpable act or omission: see R. v. Instan, [1893] 1 Q.B. 450. Similarly, if one subscribes to the viewpoint articulated by Laskin C.J.C. in Morgentaler, supra, and perceives a doctor’s defence to an abortion charge as his legal obligation to treat the mother rather than his alleged ethical duty to perform an unauthorized abortion, then the defence may be invoked without violating the prohibition enunciated by Dickson J. in Morgentaler against choosing a non-legal duty over a legal one.

It must be acknowledged, however, that on the existing state of the law the defence of necessity as justification would not be available to the person who rescues a stranger since the absence of a legal duty to rescue strangers reduces such a case to a conflict of a legal with a purely ethical duty. Such an act of rescue may be one deserving of no punishment and, indeed, deserving of praise, but it is nevertheless a culpable act if the law is violated in the process of the rescue.

As Professor E. J. Weinrib has most astutely pointed out, rescue scenarios often represent the mirror image of necessity scenarios; to acknowledge necessity as a justification premised on the discharge of the conflicting duty to rescue a stranger could, without much stretch of the imagination, be turned around so as to enable a potential rescuee to assert a right to be rescued by any stranger: Weinrib, “The Case for a Duty to Rescue”, 90 Yale L.J. 247 at pp. 273-4 (1980). By way of illustration, in the classic torts case of Vincent v. Lake Erie Trans. Co. (1910), 124 N.W. 221 (S. Ct. Minn.), it was held that a shipowner was right in helping himself to the use of a dock-owners property during a storm, thus invoking the defence of necessity to a charge of trespass to the dock. The argument was premised on the notion of conflicting legal duties and was allowed to succeed in large part due to a previous ruling in Ploof v. Putnam (1908), 71 Atl. 188 (S. Ct. Vt.), in which a dock-owner in similar circumstances was held liable to a shipowner for refusing to grant the ship access to the dock during a storm. The combined effect of the two cases may be said to turn the altruistic action into a coercive one in that the rescuer is not only given a valid justification but the rescuee is perceived as having an enforceable right. For this reason the common law has refrained from enunciating either an extended duty to rescue or an expansive right of necessity. In such circumstances “[t]here may be a moral duty to [perform a rescue], but it is not practicable to make it a legal duty”: Home Office v. Dorset Yacht Co. Ltd., [1970] A.C. 1004 at p. 1027, per Lord Reid. Rather, persons in need of aid from unknown passersby have been left to “be relieved by the charitable and the good” (per Lord Denning M.R. in Borough of Southwark, supra, at p. 179).

In similar fashion the ethical considerations of the “charitable and the good” must be kept analytically distinct from duties imposed by law. Accordingly, where necessity is invoked as a justification for violation of the law, the justification must, in my view, be restricted to situations where the accused’s act constitutes the discharge of a duty recognized by law. The justification is not, however, established simply by showing a conflict of legal duties. The rule of proportionality is central to the evaluation of a justification premised on two conflicting duties since the defence rests on the rightfulness of the accused’s choice of one over the other.

As the facts before the court in the present case do not involve a conflict of legal duties it is unnecessary to discuss in detail how a court should go about assessing the relative extent of two evils. Suffice it to say that any such assessment must respect the notion of right upon which justification is based. The assessment cannot entail a mere utilitarian calculation of, for example, lives saved and deaths avoided in the aggregate but must somehow attempt to come to grips with the nature of the rights and duties being assessed. This would seem to be consistent with Lord Coleridge’s conclusion that necessity can provide no justification for the taking of a life, such an act representing the most extreme form of rights violation. As discussed above, if any defence for such a homicidal act is to succeed, it would have to be framed as an excuse grounded on self-preservation. It could not possibly be declared by the court to be rightful. By contrast, the justification analysis would seem to support those cases in which fulfilment of the legal duty to save persons entrusted to one’s care is preferred over the lesser offences of trespass or petty theft: see Mouse’s Case (1608), 12 Co. Rep. 63, 77 E.R. 1341; Amiens, Ch. corr., April 22, 1898, S. 1899.2.1 (Menard’s Case). The crucial question for the justification defence is whether the accused’s act can be said to represent a furtherance of or a detraction from the principle of the universality of rights.

In summary, it seems to me that the category of “normative involuntariness” into which an act done in the interests of self-preservation falls is characterized not by the literal voluntariness of the act but by its unpunishable nature. As such, the act may be exempted from culpability if it arose in a life-threatening situation of necessity. Where, however, a defence by way of excuse is premised on compassion for the accused or on a perceived failure to achieve a desired instrumental end of punishment, the judicial response must be to fashion an appropriate sentence but to reject the defence as such. The only conceptual premise on which necessity as an excuse could rest is the inherent impossibility of a court’s responding in any way to an act which, although wrongful, was the one act which any rational person would commit.

Where the defence of necessity is invoked as a justification the issue is simply whether the accused was right in pursuing the course of behaviour giving rise to the charge. Thus, where the act otherwise constitutes a criminal offence (i.e., it embodies both mens rea and the actus reus) the accused must show that he operated under a conflicting legal duty which made his seemingly wrongful act right. But such justification must be premised on a right or duty recognized by law. This excludes conduct attempted to be justified on the ground of an ethical duty internal to the conscience of the accused as well as conduct sought to be justified on the basis of a perceived maximization of social utility resulting from it. Rather, the conduct must stem from the accused’s duty to satisfy his legal obligations and to respect the principle of the universality of rights.

I would dismiss the appeals.

Appeals dismissed.

 

R. v. Latimer
Supreme Court of Canada
[2001] 1 S.C.R. 3

JUDGMENT By The Court:

I. Facts

6          The appellant, Robert Latimer, farmed in Wilkie, Saskatchewan. His 12-year-old daughter, Tracy, suffered a severe form of cerebral palsy. She was quadriplegic and her physical condition rendered her immobile. She was bedridden for much of the time. Her condition was a permanent one, caused by neurological damage at the time of her birth. Tracy was said to have the mental capacity of a four-month-old baby, and she could communicate only by means of facial expressions, laughter and crying. She was completely dependent on others for her care. Tracy suffered seizures despite the medication she took. It was thought she experienced a great deal of pain, and the pain could not be reduced by medication since the pain medication conflicted with her anti-epileptic medication and her difficulty in swallowing. Tracy experienced five to six seizures daily. She had to be spoon-fed, and her lack of nutrients caused weight loss.
7          There was evidence that Tracy could have been fed with a feeding tube into her stomach, an option that would have improved her nutrition and health, and that might also have allowed for more effective pain medication to be administered. The Latimers rejected the feeding-tube option as being intrusive and as representing the first step on a path to preserving Tracy’s life artificially.
8          Tracy had a serious disability, but she was not terminally ill. Her doctors anticipated that she would have to undergo repeated surgeries, her breathing difficulties had increased, but her life was not in its final stages.
9          Tracy enjoyed music, bonfires, being with her family and the circus. She liked to play music on a radio, which she could use with a special button. Tracy could apparently recognize family members and she would express joy at seeing them. Tracy also loved being rocked gently by her parents.
10        Tracy underwent numerous surgeries in her short lifetime. In 1990, surgery tried to balance the muscles around her pelvis. In 1992, it was used to reduce the abnormal curvature in her back.
11        Like the majority of totally involved, quadriparetic children with cerebral palsy, Tracy had developed scoliosis, an abnormal curvature and rotation in the back, necessitating surgery to implant metal rods to support her spine. While it was a successful procedure, further problems developed in Tracy’s right hip: it became dislocated and caused her considerable pain.
12        Tracy was scheduled to undergo further surgery on November 19, 1993. This was to deal with her dislocated hip and, it was hoped, to lessen her constant pain. The procedure involved removing her upper thigh bone, which would leave her lower leg loose without any connecting bone; it would be held in place only by muscle and tissue. The anticipated recovery period for this surgery was one year.
13        The Latimers were told that this procedure would cause pain, and the doctors involved suggested that further surgery would be required in the future to relieve the pain emanating from various joints in Tracy’s body. According to the appellant’s wife, Laura Latimer, further surgery was perceived as mutilation. As a result, Robert Latimer formed the view that his daughter’s life was not worth living.
14        In the weeks leading up to Tracy’s death, the Latimers looked into the option of placing Tracy in a group home in North Battleford. She had lived there between July and October of 1993, just prior to her death, while her mother was pregnant. The Latimers applied to place Tracy in the home in October, but later concluded they were not interested in permanently placing her in that home at that time.
15        On October 12, 1993, after learning that the doctors wished to perform this additional surgery, the appellant decided to take his daughter’s life. On Sunday, October 24, 1993, while his wife and Tracy’s siblings were at church, Robert Latimer carried Tracy to his pickup truck, seated her in the cab, and inserted a hose from the truck’s exhaust pipe into the cab. She died from the carbon monoxide.
16        The police conducted an autopsy and discovered carbon monoxide in her blood. The appellant at first maintained that Tracy simply passed away in her sleep. He later confessed to having taken her life, and gave a statement to the investigating police and partially re-enacted his actions on videotape. Mr. Latimer also told police that he had considered giving Tracy an overdose of Valium, or “shooting her in the head”.
17        Mr. Latimer has been convicted of murder twice in this case. He was initially charged with first degree murder and convicted by a jury of second degree murder. The Court of Appeal for Saskatchewan upheld his conviction and life sentence with no eligibility for parole for 10 years, with Bayda C.J.S. dissenting on the sentence: R. v. Latimer (1995), 99 C.C.C. (3d) 481 (“Latimer (No. 1)”). The case was then appealed to this Court: [1997]1 S.C.R. 217. It turned out that the prosecutor had interfered with the jury selection process. The Crown conceded that a new trial could not be avoided. In the second trial, Mr. Latimer was again convicted of second degree murder, and it is from that conviction that this appeal arises.
18        During the second trial, two things occurred that, the appellant submits, resulted in an unfair trial. First, as counsel were about to make closing addresses to the jury, defence counsel asked the trial judge for a ruling on whether the jury could consider the defence of necessity. He wanted this ruling in advance of his closing submissions, since he planned to tailor his address to the judge’s ruling. The trial judge, however, refused to make any ruling until after hearing counsel’s closing addresses. Defence counsel made submissions, including some on the necessity defence. When counsel had concluded their addresses, the trial judge ruled that the jury was not entitled to consider necessity.
19        Second, some time after beginning their deliberations, the jury sent a number of written questions to the trial judge, one of which was: “Is there any possible way we can have input to a recommendation for sentencing?” The trial judge told the jury it was not to concern itself with the penalty. He said:

“... the penalty in any of these charges is not the concern of the jury. Your concern is, as I said, the guilt or innocence of the accused, and you must reach that’s your job, you reach that conclusion, and don’t concern yourself what the penalty might be. We say that because we don’t want you to be influenced one way or the other with what that penalty is. So it may be that later on, once you have reached a verdict, you we will have some discussions about that, but not at this stage of the game. You must just carry on and answer the question that was put to you, okay.”

The appellant highlights the underlined passage as misleading the jury.

20        After the jury returned with a guilty verdict, the trial judge explained the mandatory minimum sentence of life imprisonment, and asked the jury whether it had any recommendation as to whether Mr. Latimer’s ineligibility for parole should exceed the minimum period of 10 years. Some jury members appeared upset, according to the trial judge, and later sent a note asking him if they could recommend less than the 10-year minimum. The trial judge explained that the Criminal Code provided only for a recommendation over the 10-year minimum, but suggested that the jury could make any recommendation it liked. The jury recommended one year before parole eligibility. The trial judge then granted a constitutional exemption from the mandatory minimum sentence, sentencing the appellant to one year of imprisonment and one year on probation, to be spent confined to his farm.
21        The Court of Appeal for Saskatchewan affirmed Mr. Latimer’s conviction but reversed the sentence. It imposed the mandatory minimum sentence for second degree murder of life imprisonment without eligibility for parole for 10 years.

V. Analysis

A. Appeal Against Conviction

(1) The Availability of the Defence of Necessity

(a) The Three Requirements for the Defence of Necessity

26        We propose to set out the requirements for the defence of necessity first, before applying them to the facts of this appeal. The leading case on the defence of necessity is Perka v. The Queen, [1984] 2 S.C.R. 232. Dickson J., later C.J., outlined the rationale for the defence at p. 248:

“It rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not bestowed, but pardon is ....”
27        Dickson J. insisted that the defence of necessity be restricted to those rare cases in which true “involuntariness” is present. The defence, he held, must be “strictly controlled and scrupulously limited” (p. 250). It is well-established that the defence of necessity must be of limited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did Edmund Davies L.J., that necessity would “very easily become simply a mask for anarchy”: Southwark London Borough Council v. Williams, [1971] Ch. 734 (C.A.), at p. 746.
28        Perka outlined three elements that must be present for the defence of necessity. First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there must be proportionality between the harm inflicted and the harm avoided.
29        To begin, there must be an urgent situation of “clear and imminent peril”: Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at p. 678. In short, disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur. In Perka, Dickson J. expressed the requirement of imminent peril at p. 251: “At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable”. The Perka case, at p. 251, also offers the rationale for this requirement of immediate peril: “The requirement ... tests whether it was indeed unavoidable for the actor to act at all”. Where the situation of peril clearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril.
30        The second requirement for necessity is that there must be no reasonable legal alternative to disobeying the law. Perka proposed these questions, at pp. 251-52:

“Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law?  Was there a legal way out?” (emphasis in original).

If there was a reasonable legal alternative to breaking the law, there is no necessity. It may be noted that the requirement involves a realistic appreciation of the alternatives open to a person; the accused need not be placed in the last resort imaginable, but he must have no reasonable legal alternative. If an alternative to breaking the law exists, the defence of necessity on this aspect fails.

31        The third requirement is that there be proportionality between the harm inflicted and the harm avoided. The harm inflicted must not be disproportionate to the harm the accused sought to avoid. See Perka, per Dickson J., at p. 252:

“No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil. In such circumstances we expect the individual to bear the harm and refrain from acting illegally. If he cannot control himself we will not excuse him.&rdquo

Evaluating proportionality can be difficult. It may be easy to conclude that there is no proportionality in some cases, like the example given in Perka of the person who blows up a city to avoid breaking a finger. Where proportionality can quickly be dismissed, it makes sense for a trial judge to do so and rule out the defence of necessity before considering the other requirements for necessity. But most situations fall into a grey area that requires a difficult balancing of harms. In this regard, it should be noted that the requirement is not that one harm (the harm avoided) must always clearly outweigh the other (the harm inflicted). Rather, the two harms must, at a minimum, be of a comparable gravity. That is, the harm avoided must be either comparable to, or clearly greater than, the harm inflicted. As the Supreme Court of Victoria in Australia has put it, the harm inflicted “must not be out of proportion to the peril to be avoided”: R. v. Loughnan, [1981] V.R. 443, at p. 448.
32        Before applying the three requirements of the necessity defence to the facts of this case, we need to determine what test governs necessity. Is the standard objective or subjective?  A subjective test would be met if the person believed he or she was in imminent peril with no reasonable legal alternative to committing the offence. Conversely, an objective test would not assess what the accused believed; it would consider whether in fact the person was in peril with no reasonable legal alternative. A modified objective test falls somewhere between the two. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person. We conclude that, for two of the three requirements for the necessity defence, the test should be the modified objective test.
33        The first and second requirements imminent peril and no reasonable legal alternative must be evaluated on the modified objective standard described above. As expressed in Perka, necessity is rooted in an objective standard: “involuntariness is measured on the basis of society’s expectation of appropriate and normal resistance to pressure” (p. 259). We would add that it is appropriate, in evaluating the accused’s conduct, to take into account personal characteristics that legitimately affect what may be expected of that person. The approach taken in R. v. Hibbert, [1995] 2 S.C.R. 973, is instructive. Speaking for the Court, Lamer C.J. held, at para. 59, that:

“it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his or her ability to perceive the existence of alternative courses of action.”

While an accused’s perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused, those perceptions remain relevant only so long as they are  reasonable. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be a reasonable basis for the accused’s beliefs and actions, but it would be proper to take into account circumstances that legitimately affect the accused person’s ability to evaluate his situation. The test cannot be a subjective one, and the accused who argues that he perceived imminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given his circumstances and attributes. We leave aside for a case in which it arises the possibility that an honestly held but mistaken belief could ground a “mistake of fact” argument on the separate inquiry into mens rea.
34        The third requirement for the defence of necessity, proportionality, must be measured on an objective standard, as it would violate fundamental principles of the criminal law to do otherwise. Evaluating the nature of an act is fundamentally a determination reflecting society’s values as to what is appropriate and what represents a transgression. Some insight into this requirement is provided by George Fletcher, in a passage from Rethinking Criminal Law (1978), at p. 804. Fletcher spoke of the comparison between the harm inflicted and the harm avoided, and suggested that there was a threshold at which a person must be expected to suffer the harm rather than break the law. He continued:

“Determining this threshold is patently a matter of moral judgment about what we expect people to be able to resist in trying situations. A valuable aid in making that judgment is comparing the competing interests at stake and assessing the degree to which the actor inflicts harm beyond the benefit that accrues from his action.”

The evaluation of the seriousness of the harms must be objective. A subjective evaluation of the competing harms would, by definition, look at the matter from the perspective of the accused person who seeks to avoid harm, usually to himself. The proper perspective, however, is an objective one, since evaluating the gravity of the act is a matter of community standards infused with constitutional considerations (such as, in this case, the s. 15(1) equality rights of the disabled). We conclude that the proportionality requirement must be determined on a purely objective standard.

(b) The Application of the Requirements for Necessity in This Case

35        The inquiry here is not whether the defence of necessity should in fact excuse Mr. Latimer’s actions, but whether the jury should have been left to consider this defence. The correct test on that point is whether there is an air of reality to the defence. In R. v. Osolin, [1993] 4 S.C.R. 595, at p. 676, Cory J. stated:

“... a defence should not be put to the jury if a reasonable jury properly instructed would have been unable to acquit on the basis of the evidence tendered in support of that defence. On the other hand, if a reasonable jury properly instructed could acquit on the basis of the evidence tendered with regard to that defence, then it must be put to the jury. It is for the trial judge to decide whether the evidence is sufficient to warrant putting a defence to a jury as this is a question of law alone.”

The question is whether there is sufficient evidence that, if believed, would allow a reasonable jury properly charged and acting judicially to conclude that the defence applied and acquit the accused.

36        For the necessity defence, the trial judge must be satisfied that there is evidence sufficient to give an air of reality to each of the three requirements. If the trial judge concludes that there is no air of reality to any one of the three requirements, the defence of necessity should not be left to the jury.
37        In this case, there was no air of reality to the three requirements of necessity.
38        The first requirement is imminent peril. It is not met in this case. The appellant does not suggest he himself faced any peril; instead he identifies a peril to his daughter, stemming from her upcoming surgery which he perceived as a form of mutilation. Acute suffering can constitute imminent peril, but in this case there was nothing to her medical condition that placed Tracy in a dangerous situation where death was an alternative. Tracy was thought to be in pain before the surgery, and that pain was expected to continue, or increase, following the surgery. But that ongoing pain did not constitute an emergency in this case. To borrow the language of Edmund Davies L.J. in Southwark London Borough Council, supra, at p. 746, we are dealing not with an emergency but with “an obstinate and long-standing state of affairs”. Tracy’s proposed surgery did not pose an imminent threat to her life, nor did her medical condition. In fact, Tracy’s health might have improved had the Latimers not rejected the option of relying on a feeding tube. Tracy’s situation was not an emergency. The appellant can be reasonably expected to have understood that reality. There was no evidence of a legitimate psychological condition that rendered him unable to perceive that there was no imminent peril. The appellant argued that, for him, further surgery did amount to imminent peril. It was not reasonable for the appellant to form this belief, particularly when better pain management was available.
39        The second requirement for the necessity defence is that the accused had no reasonable legal alternative to breaking the law. In this case, there is no air of reality to the proposition that the appellant had no reasonable legal alternative to killing his daughter. He had at least one reasonable legal alternative: he could have struggled on, with what was unquestionably a difficult situation, by helping Tracy to live and by minimizing her pain as much as possible. The appellant might have done so by using a feeding tube to improve her health and allow her to take more effective pain medication, or he might have relied on the group home that Tracy stayed at just before her death. The appellant may well have thought the prospect of struggling on unbearably sad and demanding. It was a human response that this alternative was unappealing. But it was a reasonable legal alternative that the law requires a person to pursue before he can claim the defence of necessity. The appellant was aware of this alternative but rejected it.
40        The third requirement for the necessity defence is proportionality; it requires the trial judge to consider, as a question of law rather than fact, whether the harm avoided was proportionate to the harm inflicted. It is difficult, at the conceptual level, to imagine a circumstance in which the proportionality requirement could be met for a homicide. We leave open, if and until it arises, the question of whether the proportionality requirement could be met in a homicide situation. In England, the defence of necessity is probably not available for homicide: R. v. Howe, [1987] 1 A.C. 417 (H.L.), at pp. 453 and 429; Smith and Hogan, Criminal Law (9th ed. 1999), at pp. 249-51. The famous case of R. v. Dudley and Stephens (1884), 14 Q.B.D. 273, involving cannibalism on the high seas, is often cited as establishing the unavailability of the defence of necessity for homicide, although the case is not conclusive: see Card, Cross and Jones, Criminal Law (12th ed. 1992), at p. 352; Smith and Hogan, supra, at pp. 249 and 251. The Law Reform Commission of Canada has suggested the defence should not be available for a person who intentionally kills or seriously harms another person: Report on Recodifying Criminal Law (1987), at p. 36. American jurisdictions are divided on this question, with a number of them denying the necessity defence for murder: P. H. Robinson, Criminal Law Defenses (1984) , vol. 2, at pp. 63-65; see also United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842) (No. 15,383). The American Model Penal Code proposes that the defence of necessity would be available for homicide: American Law Institute, Model Penal Code and Commentaries (1985), at 3.02, pp. 14-15; see also W. R. LaFave and A. W. Scott, Substantive Criminal Law (1986), vol. 1, at p. 634.
41        Assuming for the sake of analysis only that necessity could provide a defence to homicide, there would have to be a harm that was seriously comparable in gravity to death (the harm inflicted). In this case, there was no risk of such harm. The “harm avoided” in the appellant’s situation was, compared to death, completely disproportionate. The harm inflicted in this case was ending a life; that harm was immeasurably more serious than the pain resulting from Tracy’s operation which Mr. Latimer sought to avoid. Killing a person in order to relieve the suffering produced by a medically manageable physical or mental condition is not a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition.
42        We conclude that there was no air of reality to any of the three requirements for necessity. As noted earlier, if the trial judge concludes that even one of the requirements had no air of reality, the defence should not be left to the jury. Here, the trial judge was correct to remove the defence from the jury. In considering the defence of necessity, we must remain aware of the need to respect the life, dignity and equality of all the individuals affected by the act in question. The fact that the victim in this case was disabled rather than able-bodied does not affect our conclusion that the three requirements for the defence of necessity had no air of reality here.…

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LRCC §§ 3(9) & 3(17)

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MPC § 3.02

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StGB § 34 (Necessity as Justification)


Chapter 14. Excuse

A.        Incapacity (“Exemption”)

            1. Insanity

                  a. Definition

 

R. v. Cooper
Supreme Court of Canada
[1980] 51 C.C.C. (2d) 129; [1980] 1 S.C.R. 1149

DICKSON J. (LASKIN C.J.C., BEETZ, ESTEY and MCINTYRE JJ. concurring):— Issues fundamental to the design and range of the “insanity defence” and to notions of responsibility in our criminal justice system are before the court in this appeal.

The case opens up the broad and difficult question of the obligation of a trial judge to charge on insanity in circumstances where an accused has a lengthy psychiatric history but the medical evidence is that he does not suffer from “disease of the mind”.

The appellant, Gary Albert Cooper, was charged with the murder of one Denise Hobbs, at the time an in-patient at the Hamilton Psychiatric Hospital. The appellant was an out-patient at the same institution. There was evidence that the appellant had been drinking during the day of 8th October 1975. That evening he arrived at a regularly scheduled dance held at a nearby church for patients of the hospital, and there met Denise Hobbs, with whom he was acquainted. At his invitation, the two left the dance to seek a bottle of pop and cigarettes. Ultimately, after an unsuccessful attempt at sexual intercourse the appellant choked the deceased. The cause of death was asphyxiation by strangulation.

At trial, counsel for the defence directed argument to raising a doubt on the issue of intent, and did not plead the “defence” of insanity. Nonetheless, the trial judge, Van Camp J., charged the jury on insanity, though in a manner vigorously challenged in this appeal. The jury found the appellant guilty of non-capital murder, and an appeal was dismissed without written reasons, Dubin J.A. dissenting. At a later date Dubin J.A. delivered lengthy reasons in dissent [40 C.C.C. (2d) 145].

Section 16 of the Criminal Code, R.S.C. 1970, c. C-34 {since amended}, does not set out a test of insanity, but rather sets out the criteria to be taken into account in determining criminal responsibility. The sections reads:

16.(1) No person shall be convicted of an offence in respect of an act or omission on his part while he was insane.
(2) For the purposes of this section a person is insane when he is in a state of natural imbecility or has disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.
(3) A person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused him to believe in the existence of a state of things that, if it existed, would have justified or excused his act or omission.
(4) Every one shall, until the contrary is proved, be presumed to be and to have been sane.”

The question raised by this appeal is whether there was evidence from which a properly charged jury could conclude, on a balance of probabilities, that the appellant had disease of the mind to an extent that rendered him incapable of appreciating the nature and quality of the act of which he was charged or of knowing that it was wrong. “Wrong” means legally wrong: Schwartz v. R., [1977] 1 S.C.R. 673, 34 C.R.N.S. 138, 29 C.C.C. (2d) 1, 67 D.L.R. (3d) 716, 8 N.R. 585. Before turning to the evidence adduced at trial, it will be convenient to consider this question at some length, for it raises two distinct legal issues fundamental to our defence of insanity under s. 16(2). First, the meaning to be ascribed to the phrase “disease of the mind” and, second, the interpretation to be given the words “incapable of appreciating the nature and quality of an act”.

1. Disease Of The Mind

Let me say by way of commencement that, to date, the phrase “disease of the mind” has proven intractable and has eluded satisfactory definition by both medical and legal disciplines. It is not a term of art in either law or psychiatry. Indeed, Glanville Williams (Textbook of Criminal Law (1978), p. 592) says that the phrase is no longer in medical use. “It is a mere working concept, a mere abstraction, like sin” (Wily and Stallworthy, Mental Abnormality and the Law (1962), p. 20). Although the term expresses a legal concept, and a finding is made according to a legal test, psychiatric knowledge is directly linked to the legal conclusion, for medical testimony forms part of the evidence on which the trier of fact must reach its decision. But medical and legal perspectives differ. The divergence in the two philosophies is identified by Jerome Hall in “Psychiatry and Criminal Responsibility” (1956), 65 Yale L.J. 761 at 764:

“…we can easily perceive the perspective that psychiatry, and especially psycho-analysis, draws from them [the sciences]. Since it purports to be rigorously scientific, it takes a determinist position. Its view of human nature is expressed in terms of drives and dispositions which, like mechanical forces, operate in accordance with the universal laws of causation.…

Its view [the criminal law] of human nature asserts the reality of free choice and rejects the thesis that the conduct of normal adults is a mere expression of imperious psychological necessity.”

Even medical experts are not given to agreement when asked to define “disease of the mind” . In “The Concept of Mental Disease in Criminal Law Insanity Tests” (1965-66), 33 University of Chicago L. Rev. 229, H. Fingarette illustrates the diversity in approach taken by psychiatric authorities in the quest for a definition of mental disease. He cites the following medical views at p. 232-33:

“(1) There is no such medical entity as mental disease, or we would do well not to use the phrase.
(2) Mental disease is psychosis but not neurosis.
(3) Mental disease is any significant and substantial mental disturbance, or is any condition at all which is authoritatively dealt with by the psychiatrist or physician treating mental conditions.
(4) Mental disease means substantial social maladaptation or incompetence or both as judged by legal criteria.
(5) Mental disease is the failure to realize one’s nature capacities or true self.”

He observes at p. 236 that, in spite of the inability of medical science to assist the law in reaching or agreeing upon a precise definition, the law is responsive to its different needs:

“Nevertheless, it is crucial for our purposes to realize that the whole affair is initiated for legal purposes, that the definition is authoritatively formulated by lawmakers, and that the fundamental grounds justifying the enterprise are largely non-medical.”

In R. v. Kemp, [1957] 1 Q.B. 339, 40 Cr. App. R. 121, [1956] 3 All E.R. 249, an oft-cited decision, the primary issue was whether arteriosclerosis came within the meaning of “disease of the mind”. Devlin J. agreed that there was an absence of medical opinion as to the categories of malfunction properly to be termed “diseases of the mind”, and rejected the idea that, for legal purposes, a distinction should be made between diseases physical and mental in origin. In his view, arteriosclerosis is a disease of the mind and can provide a defence to a criminal charge. He reviewed the relationship between medical evidence and the legal conclusions to be drawn therefrom (p. 406):

“Doctors’ personal views, of course, are not binding on me. I have to interpret the rules according to the ordinary principles of interpretation, but I derive help from their interpretations inasmuch as they illustrate the nature of the disease and the matters which from the medical point of view have to be considered in determining whether or not it is a disease of the mind.”

In Bratty v. A .G. Northern Ireland, [1963] A.C. 386, 46 Cr. App. R. 1, [1961] 3 All E.R. 523 ( H.L.), Lord Denning agreed that the question of whether an accused suffers from a disease of the mind is properly resolved by the judge. He acknowledged that “The major mental diseases, which the doctors call psychoses…are clearly diseases of the mind” and that “any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind”(p. 534).

In the Report of the Royal Commission on Capital Punishment, England (1949-1953), one finds a useful contribution to the discussion of what is meant by the phrases “mental disease” and “disease of the mind”. The report reads at p. 73:

“For us, therefore, mental disease is only one part of mental disorders of all kinds, and broadly corresponds to what are often called major diseases of the mind, or psychoses; although it may also arise in cases, such as those of epilepsy and cerebral tumour, which are not ordinarily regarded by doctors as psychotic. Among the psychoses are the conditions known as schizophrenia, manic-depressive psychoses, and organic disease of the brain. Other conditions, not included under this term, are the minor forms of mental disorder—the neurotic reactions, such as neurasthenia, anxiety states and hysteria—and the disorders of development of the personality—psychopathic personality. We are aware that this classification will not be unconditionally endorsed by all psychiatrists, and that some would prefer to include under the term ‘disease of the mind’ even the minor abnormalities we have referred to. We believe, however, that the nature of the distinction we have drawn will be clear to them, and will be acceptable to them as the basis for a discussion of criminal responsibility.”

The classification advanced was arbitrary, and was recognized as being one which would not be acceptable to all psychiatrists. The passage cited makes it abundantly clear that “disease of the mind” can mean different things to different psychiatrists. To some, for example, it may include such things as neurasthenia, anxiety states, hysteria and psychopathic personality. Others would exclude such disorders from the definition. It is equally manifest that, in law, some mental states may be recognized as possibly being within the definition, although, medically speaking, a psychiatrist might not so regard them. Hardening of the arteries is one example (R. v. Kemp, supra); psychomotor epilepsy is another (R. v. O’Brien, [1966] 3 C.C.C. 288, 56 D.L.R. (2d) 65 (N.B.C.A.)). Thus, to pose to a psychiatrist the bald question “Is D suffering from a disease of the mind?” and require a bald “Yes” or “No” response really tells nothing, because one is left in the dark as to the legal criteria applied.

Support for a broad and liberal legal construction of the words “disease of the mind” will be found in the writings of the renowned jurist Sir Owen Dixon, formerly Chief Justice of Australia, who wrote in “A Legacy of Hadfield, M’Naghten and Maclean” (1957), 31 A.L.J. 255 at 260:

“The reason why it is required that the defect of reason should be ‘from disease of the mind’, in the classic phrase used by Sir Nicholas Tindal, seems to me no more than to exclude drunkenness, conditions of intense passion and other transient states attributable either to the fault or to the nature of man. In the advice delivered by Sir Nicholas Tindal no doubt the words ‘disease of the mind’ were chosen because it was considered that they had the widest possible meaning. He would hardly have supposed it possible that the expression would be treated as one containing words of the law to be weighed like diamonds. l have taken it to include, as well as all forms of physical or material change or deterioration, every recognizable disorder or derangement of the understanding whether or not its nature, in our present state of knowledge, is capable of explanation or determination.” (The italics are mine.)

To the learned authors of Smith and Hogan, Criminal Law, 4th ed. (1978), p. 164: “It seems that any disease which produces a malfunction is a disease of the mind.”

Recently, in Canada, the Ontario Court of Appeal contributed judicial direction in this area of the law in the cases of R. v. Rabey (1977), 17 O.R. (2d) 1, 40 C.R.N.S. 46,37 C.C.C. (2d) 461,1 L.M.Q. 280, 79 D.L.R. (3d) 414, and R. v. Simpson (1977), 16 O.R. (2d) 129, 35 C.C.C. (2d) 337, both of which were decided subsequent to the trial of the appellant. Judgment in Rabey postdates the decision of the Court of Appeal in the case at bar, and is presently on appeal to this court on an issue unrelated to those raised herein. Martin J.A., who wrote for the court in both Rabey and Simpson, was not among the members of the court who heard the Cooper appeal.

Simpson has greater significance for the present appeal. There, the accused appealed the finding of not guilty by reason of insanity on two charges of attempted murder. The facts, which indicate two incidents of stabbing, are not remarkable. As framed by Martin J.A., the issue was whether a personality disorder is a disease of the mind within the meaning of s. 16 of the Code. He held that, notwithstanding the psychiatric evidence, the question raised must be resolved as a question of law. But the legal position, as I understand it, is properly expressed in the following passage (pp. 349-50):

“The term ‘disease of the mind’ is a legal concept, although it includes a medical component, and what is meant by that term is a question of law for the Judge…It is the function of the psychiatrist to describe the accused’s mental condition and how it is considered from the medical point of view. It is for the Judge to decide whether the condition described is comprehended by the term ‘disease of the mind’.”

As a matter of practice, the trial judge can permit the psychiatrist to be asked directly whether or not the condition in question constitutes a disease of the mind. Concerning the controversy over the classification of a “psychopathic personality”, Martin J.A. found implicit recognition in Canadian and British authorities for the proposition that such a disorder can constitute a disease.

The general principles, not in issue on the further appeal to this court, were reiterated by Martin J.A. in R. v. Rabey. Disease of the mind is a legal term. It is within the province of the judge to determine what mental conditions are within the meaning of that phrase and whether there is any evidence that an accused suffers from an abnormal mental condition comprehended by that term. More importantly, he held that, if there is any evidence that the accused did suffer from such a disease, in legal terms, the question of fact must be left with the jury.

In summary, one might say that, in a legal sense, “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. In order to support a defence of insanity, the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.

Underlying all of this discussion is the concept of responsibility and the notion that an accused is not legally responsible for acts resulting from mental disease or mental defect. The principle was expressed long ago in Hawkins, Pleas of the Crown, 2nd ed. (1724), vol. 1, where it is said (p. 1):

“The guilt of offending against any law whatsoever, necessarily supposing a wilful disobedience, can never justly be imputed to those who are either incapable of understanding it,  or of conforming themselves to it.”

2. Appreciate

In contrast to the position in England under the M’Naghten Rules, where the words used are “knows the nature and quality of his act”, s. 16 of the Code uses the phrase “appreciating the nature and quality of an act or omission”. The two are not synonymous. The draftsman of the Code, as originally enacted, made a deliberate change in language from the common law rule in order to broaden the legal and medical considerations bearing upon the mental state of the accused and to make it clear that cognition was not to be the sole criterion. Emotional as well as intellectual awareness of the significance of the conduct is in issue. The Report of the Royal Commission on the Law of Insanity as a Defence in Criminal Cases (McRuer Report) (1956), contains a useful discussion on the point (p. 12):

The word ‘appreciating’, not being a word that is synonymous with ‘knowing’, requires far-reaching legal and medical consideration when discussing Canadian law. It had its origin in the Stephen Draft Code. Not infrequently judicial reference is made to the New Oxford Dictionary for the definition of words used in Canadian statutes. The New Oxford Dictionary gives five different uses of the word ‘appreciate’, depending on the context The one applicable to this statute is:

“‘2. To estimate aright, to perceive the full force of.
b. esp. to be sensitive to, or sensible of, any delicate impression or distinction. Until the truth of anything…be appreciated, its error, if any, cannot be detected.”

An examination of the civil law of England and Canada shows that there is an important difference between ‘know’ or ‘knowledge’ on the one hand and ‘appreciate’ or ‘appreciation’ on the other when used and applied to a given set of circumstances. This is best illustrated by the principles of law underlying those cases in which the maxim volenti non fit injuria is involved. There is a clear distinction between mere knowledge of the risk and appreciation of both the risk and the danger.”

To “know” the nature and quality of an act may mean merely to be aware of the physical act, while to “appreciate” may involve estimation and understanding of the consequences of that act. In the case of the appellant, as an example, in using his hands to choke the deceased he may well have known the nature and quality of that physical act of choking. It is entirely different to suggest, however, that in performing the physical act of choking he was able to appreciate its nature and quality, in the sense of being aware that it could lead to or result in her death. In the opinion of the medical expert who testified at the trial, the appellant could have been capable of intending bodily harm and of choking the girl, but not of having intended her death.

Our Code postulates an independent test, requiring a level of understanding of the act, which is more than mere knowledge that it is taking place; in short, a capacity to apprehend the nature of the act, and its consequences. The position in law is well expressed in the McRuer Report at p. 12:

Under the Canadian statute law a disease of the mind that renders the accused person incapable of an appreciation of the nature and quality of the act must necessarily involve more than mere knowledge that the act is being committed; there must be an appreciation of the factors involved in the act and a mental capacity to measure and foresee the consequences of the violent conduct.

It should be noted that the issue of appreciation of the nature and quality of the act was not before this court in Schwartz v. R., supra. The sole issue was the meaning of the word “wrong”. The decision in Schwartz should not be taken as authority for the proposition that “appreciating” the nature and quality of an act is synonymous with “knowing” the physical character of that act.

The test proposed in the McRuer Report, which I would adopt (save for deletion of the “fully” in the fourth line) is this (p. 13):

“The true test necessarily is, was the accused person at the very time of the offence—not before or after, but at the moment of the offence—by reason of disease of the mind, unable fully to appreciate not only the nature of the act but the natural consequences that would flow from it? In other words, was the accused person, by reason of disease of the mind, deprived of the mental capacity to foresee and measure the consequences of the act?”

The legally relevant time is the time when the act was committed.

In R. v. O’Brien, supra, Ritchie J.A. referred to the McRuer Report and stated at pp. 301-302:

“If an accused person is to be deprived of the protection of s. 16, he must, at the time of committing the offence, have had an appreciation of the factors involved in his act and the mental capacity to measure and foresee the consequences of it. “

In the Simpson decision, supra, Martin J.A. offered the view that s. 16(2) exempts from liability an accused who, due to a disease of the mind, has no real understanding of the nature, character and consequences of the act at the time of its commission. I agree. With respect, I accept the view that the first branch of the test, in employing the word “appreciates”, imports an additional requirement to mere knowledge of the physical quality of the act. The requirement, unique to Canada, is that of perception, an ability to perceive the consequences, impact and results of a physical act. An accused may be aware of the physical character of his action (i.e., in choking) without necessarily having the capacity to appreciate that, in nature and quality, that act will result in the death of a human being. This is simply a restatement, specific to the defence of insanity, of the principle that mens rea, or intention as to the consequences of an act, is a  requisite element in the commission of a crime.…

Conclusions

In my opinion, there was evidence sufficient to require the judge to fully instruct the jury on the issue of insanity. [This he did not do.] I would allow the appeal and order a new trial.

 

R. v. Kjeldsen
Supreme Court of Canada
[1981] 131 D.L.R. (3d) 121; [1981] 2 S.C.R. 617

The judgment of the court was delivered by McINTYRE J.:—
…I find it helpful to refer to the words of Martin J.A.,speaking for the Ontario Court of Appeal, in R. v. Simpson (1977), 35 C.C.C. (2d) 337 at p. 355,

Emotional disturbance caused by disease of the mind may be so severe as to deprive the accused of the use of his understanding at the time of the act rendering him incapable of appreciating the nature and quality of the act or of knowing that it was wrong, and thus exempting him from liability under s. 16(2) of the Code: see Reference re Regina v. Gorecki (No. 2) (a judgment of this Court released on September 14, 1976, not yet reported [since reported 32 C.C.C. (2d) 135, 14 O.R. (2d) 218]). I do not, however, read the psychiatric evidence to be that the accused was by reason of emotional turmoil produced by disease of the mind incapable of understanding or realizing what he was doing, but rather that he lacked normal emotions and was therefore incapable of experiencing normal feelings concerning the acts, assuming he committed them.

While I am of the view that s. 16(2) exempts from liability an accused who by reason of disease of the mind has no real understanding of the nature, character and consequences of the act at the time of its commission, I do not think the exemption provided by the section extends to one who has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems from “disease of the mind”. Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people: see Willgoss v. The Queen (1960), 105 C.L.R. 295; R. v. Leech (1972), 10 C.C.C. (2d) 149, 21 C.R.N.S. 1, [1973] 1 W.W.R. 744; R. v. Craig (1974), 22 C.C.C. (2d) 212, [1975] 2 W.W.R. 314 [affirmed 28 C.C.C. (2d) 311]. No doubt the absence of such feelings is a common characteristic of many persons who engage in repeated and serious criminal conduct.

 

R. v. Abbey
Supreme Court of Canada
[1982] 138 D.L.R. (3d) 202; [1982] 2 S.C.R. 24

The judgment of the court was delivered by DICKSON J.:—
…As the court observed in Cooper, supra [(1980), 51 C.C.C. (2d) 129], the requirement that the accused be able to perceive the consequences of a physical act is a restatement, specific to the defence of insanity, of the principle of mens rea, or intention as to the consequences of an act, as a requisite element in the commission of a crime. The mental element must be proved with respect to all circumstances, and consequences, that form part of the actus reus. As the Crown in this case correctly points out, “while punishment may be a result of the commission of a criminal act it is not an element of the crime itself”. A delusion which renders an accused “incapable of appreciating the nature and quality of his act” goes to the mens rea of the offence and brings into operation the “first arm” of s. 16(2): he is not guilty by reason of insanity. A delusion which renders an accused incapable of appreciating that the penal sanctions attaching to the commission of the crime are applicable to him does not go to the mens rea of the offence, does not render him incapable of appreciating the nature and quality of the act, and does not bring into operation the “first arm” of the insanity defence.

Abbey was charged with importing and trafficking in cocaine. There is no dispute as to the fact that he carried cocaine into the country. In his statement to police, it was his admitted intention to import cocaine for the purposes of trafficking. In other words, Abbey appreciated that the actus reus of each of the offences charged was being committed. Both the psychiatrist called for the defence, and the psychiatrist who testified on behalf of the Crown, stated that Abbey appreciated the nature and quality of his act. …

The judge erred, in my view, in going on to say that a failure to appreciate the penal sanctions (“consequences of punishment”) brought the accused within the ambit of the “first arm” of the insanity defence of s. 16(2).

The second arm of s. 16(2)

Should the question of “personal penal consequences” be relevant at all, it is more appropriately discussed within the context of the second arm of s. 16(2), i.e., “knowing that an act is wrong”. Glanville Williams in his Criminal Law, The General Part, at p. 478 says (citing R. v. Codere, supra, at p. 27):

It has been determined that this phrase [nature and quality] refers to the physical character of the act, not its legal quality; legal right and wrong are cared for by the second question.

This court having decided in Schwartz v. The Queen, supra, that “wrong” means according to law, and it being established that Abbey knew his act was “wrong”, his inability to “appreciate” the penal consequences is really irrelevant to the question of legal insanity. There seems to be no doubt on the evidence, and on the judge’s findings, that Abbey knew that he was doing an act forbidden by law.

With respect, the trial judge homogenized the first and second arms of s. 16(2), collapsing the one into the other in, for example, the following passage from his judgment:

As I understand the evidence and the submission of counsel, the accused had the capacity to appreciate the nature of the act of importing and of possessing the cocaine. He also had the capacity to appreciate the immediate consequences of those acts. That is to say that they were illegal; that he should not commit them overtly . . .

The second arm of s. 16(2) is concerned with cognitive capabilities, with knowledge, and not with appreciation of consequences. Section 16(2) speaks in terms of knowledge of wrongness, not appreciation of wrongness. One must, I think, draw a distinction between what might be termed “result” crimes and what might be termed “knowledge” crimes. In respect of the former it is correct to speak of appreciation of consequences. The capacity to appreciate the nature and quality of his act refers to the physical character of the act. It requires both an appreciation of the factors involved, and sufficient mental capacity to measure and foresee the consequences of the conduct.

With respect, however, to the second arm of s. 16(2), knowledge that it is wrong, Martland J. set out the test in the Schwartz case (at p. 11 C.C.C., p. 726 D.L.R., p. 701 S.C.R.):

In brief, it is my opinion that the effect of s. 16(2) is to provide protection to a person suffering from disease of the mind who has committed a crime if, in committing the crime, he did not appreciate what he was doing, or, if he did have that appreciation, he did not know that he was committing a crime.

In a note on Schwartz v. The Queen, supra, entitled “Section 16 and Wrong” (1975-76), 18 Crim. L.Q. 413, Professor Mewett submits that the question that ought to be asked is (at p. 415) “whether the accused, because of a disease of the mind (first hurdle) was rendered incapable (second hurdle) of knowing that this act was something that he ought not to do (third hurdle)”. If he was capable of knowing that an act was contrary to law, and that he ought not to do an act contrary to law, then, in the opinion of Professor Mewett, the defence should not apply.

When one is considering the legal aspects of a crime such as the importation of a narcotic the principal inquiry should be directed not to appreciation of physical consequences but to knowledge of wrongness. The trial judge said “This man knew it was a crime, knew there was penalty, but by delusion believed himself protected”. Counsel for Abbey said in argument that he had to accept the fact that he could not bring Abbey’s state of mind into the second half of s. 16(2). On these findings, in my opinion, the defence of insanity was not open to Abbey.

I am of the view that the trial judge erred in law in holding that a person who by reason of disease of the mind does not “appreciate” the penal consequences of his actions is insane within the meaning of s. 16(2) of the Criminal Code. …

Appeal allowed; new trial ordered.

 

R. v. Kirkby (1985)
21 C.C.C. (3d) 31
Supreme Court of Ontario - Court of Appeal

The judgment of the Court delivered by
MARTIN J.A.:— The appellant was tried on an indictment charging him with having on or about September 4, 1982 committed first degree murder on the person of David Murray. The jury found the appellant guilty as charged and he now appeals against his conviction.

[“[T]he appellant had a delusional belief that he was a special type of person, a "biker" or a member of the Mafia and therefore entitled to a certain level of respect, which he had not received from David Murray. He felt that it was important to punish David for his disrespect. The appellant held these beliefs as real. He believed that as a special person and a person of some stature, it was appropriate to punish David for his disrespect and that David would have to pay with his life. The appellant, under the influence of his delusional belief, considered that he was justified in executing someone who had been disrespectful.”]
….
I agree with the trial judge that even if there was evidence that the appellant suffered from that delusion it clearly did not render the appellant incapable of appreciating the nature and quality of his act or of knowing that it was legally wrong.

It must now be taken to be settled that disease of the mind rendering the accused incapable of appreciating the nature and quality of an act or omission which exempts from criminal responsibility under the first arm of s. 16(2) refers to incapacity to appreciate the physical nature of the act and its physical consequences: see R. v. Abbey, supra, at pp. 402-403.

I wish, however, to guard myself from being thought to hold that in every case where an accused knows, for example, that he is shooting a human being and that the shooting will cause death that the accused is capable of appreciating the nature and quality of the act. Some delusions may cause the act of killing to assume in the accused’s mind an entirely different character. For example, if an accused suffers from a delusion that he is an absolute monarch executing a subject for high treason, the act of killing in his mind has assumed a character different from murder. In such a case the accused would be exempt from liability under the second arm of s. 16(2) because he would believe he was acting legally, but, in my view, he would also be exempt under the first arm. It might be that a person suffering from paranoid schizophrenia who, under the delusion that his neighbour is killing him and his family with “thought waves”, buys a gun and kills the neighbour is exempt from liability under the first arm of s. 16(2). The killing in the accused’s mind is transformed by the delusion from murder to a killing in self-defence or to protect his family. It is unlikely that a person subject to a delusion of such intensity would be able at the time of the killing to apply his mind to the consideration of the legal wrongfulness of the act, and hence would also be exempt under the second arm of s. 16(2). It is unnecessary to further explore the subject of such unusual delusions, because even if the appellant was under the delusion that he was a biker and a member of the Mafia and that the deceased must suffer death for his failure to accord the appellant the proper respect, the evidence is clear that the appellant appreciated the nature and quality of the act of killing the deceased and that it was against the law. The delusion did not have the effect of causing the act of killing to take on a different character, in the appellant’s mind, to what it actually was. It is clear on all the evidence that the appellant knew he was killing the deceased and that it was legally wrong for him to do so.

 

R. v. Schwartz
Supreme Court of Canada
[1976] 29 C.C.C. (2d) 1; [1977] 1 S.C.R. 673

MARTLAND J. (with whom JUDSON, RITCHIE, PIGEON and DE GRANDPRÉ JJ. concurred):—This is an appeal, by leave from the unanimous judgment of the Court of Appeal for British Columbia which had dismissed the appellant’s appeal from his conviction for the non-capital murder of two persons. Leave to appeal was granted in respect of the following question of law:

Did the Court of Appeal err in holding that there had been no error in law in the direction given to the jury as to the meaning of the word “wrong,” as used in s. 16, subs. (2) {s. 16(1)}, of the Criminal Code, in defining insanity?


When instructing the jury in respect of the defence of insanity, the learned trial Judge said:

Now, the test of insanity which you must apply in this case is twofold. You first ask yourselves whether at the time of the offence the Accused knew the nature and the quality of the acts he was doing and if as a result of disease of the mind, he did not, that establishes insanity for the purpose of this trial. If, however, you find that the Accused did in fact cause the deaths of Barbara Jean Blum and Edward Julius Mernickle by unlawful acts and that he knew the nature and quality of his acts, you must then go further and you must decide whether he knew what he was doing was wrong; and, if you find that as a result of a disease of the mind he did not know what he was doing wrong, then that establishes insanity. When I use the word “wrong” that means wrong according to law, wrong in the sense the act was forbidden by law.

It is the contention of the appellant that the learned trial Judge was in error in saying that “wrong” means wrong according to law, wrong in the sense that the act was forbidden by law. The submission is that the word “wrong” as used in s. 16(2) means contrary to the ordinary standard of reasonable men. It is argued that, even if an accused person, relying upon the defence of insanity, knew that his act was legally wrong, he would still be within the definition of insanity if he believed his action to be right according to the ordinary standard of reasonable men.

[Some of the evidence is then examined.]
In the result, the jury had before it the expert evidence of two psychiatrists, one of whom had observed the appellant over a period of two months, whose opinion was that the appellant did not have a disease of the mind, and that of two general practitioners based upon what they observed shortly after the appellant’s arrest, and, thus, shortly after he had committed two murders, that he was psychotic and therefore would not appreciate the nature and quality of his acts. The jury was properly told by the trial Judge that if, as a result of disease of the mind, the appellant, at the time he committed the offences, did not know the nature and quality of the acts he was doing, that would establish insanity for the purpose of the trial. The jury’s verdict establishes that it did not accept the opinion of the general practitioners as against that of the psychiatrists.

There is no evidence in the case which relates to the issue as to whether, at the time the offences were committed, the appellant, owing to disease of the mind, though appreciating the nature and quality of his acts, did not know that what he was doing was morally, or legally, wrong. That issue never arose on the facts of this case. There was no evidence to meet the onus imposed on the appellant by s. 16(4) to establish his insanity within the latter part of the definition in s. 16(2) no matter how the word “wrong” be interpreted. This being so, the portion of the charge to which objection is taken was irrelevant, and, therefore, even if it were erroneous, this would be a case in which the provisions of s. 613(1)(b)(iii) should be applied.

In my opinion, the Judge’s charge upon the meaning of the word “wrong” in s. 16(2) was not erroneous. I propose to deal with this issue only because the matter was fully argued before us, and it would be desirable that an expression of opinion on this point by this Court should be made. …

The High Court of Australia refused to follow the Windle case in Stapleton v. The Queen (1952),86 C.L.R.358, and held that, in applying the second branch of the legal test of insanity, as defined in M’Naghten’s case, the question is whether the accused knew that his act was wrong according to the ordinary principles of reasonable men, and not whether he knew it was wrong as being contrary to law. This view of the law, which is stated in the reasons of Dixon, C.J., for the Court, is the same as the view which he had expressed, as a trial Judge, in his charge to the jury, almost 20 years earlier, in R. v. Porter (1933), 55 C.L.R. 182. …

McRuer, C.J.H.C., in R. v. O, 3 Crim.L.Q. 151 at p. 153 (1959), instructed a jury respecting the defence of insanity in a manner similar to the charge in the Porter case when he said:

. . . if on a mere preponderance of probability, based on the evidence taken as a whole, you come to the conclusion that the accused was labouring under disease of the mind to such an extent that she was incapable of knowing that the act was wrong—and by that I do not mean merely legally wrong, but wrong in the sense that it was something that she ought not to do and for which she would be condemned in the eyes of her right-thinking fellow men—you should find her not guilty on account of insanity.

In determining the meaning of the word “wrong” in s. 16(2) it is important to remember that this subsection only becomes operative if, previously, it has been proved beyond a reasonable doubt that the accused person has committed a crime; i.e., has been guilty of some criminal act with the requisite criminal intent. It is at that point that he may seek the protection against conviction afforded by s. 16(1) on the ground that the offence was committed while he was insane. But mere proof of insanity alone is not enough. He is only to be considered insane for the purposes of that subsection if he has a disease of the mind to an extent that renders him incapable of:

(a) appreciating the nature and quality of his act; or
(b) knowing that such act was wrong.

The Codere case, in my opinion, correctly decided that “nature and quality” dealt with the physical character of the act. If, therefore, a person who has committed a crime did not, by reason of disease of the mind, know what he was doing, he is not to be convicted, because it really was not his act.

The second and alternative portion of the definition is dealing not with the criminal act, but with the criminal intent. Although he has committed a crime, and understood what he was doing, the accused is still protected from conviction if, because of mental disease, he did not know that by his act he was committing a crime.

In brief, it is my opinion that the effect of s. 16(2) is to provide protection to a person suffering from disease of the mind who has committed a crime if, in committing the crime, he did not appreciate what he was doing, or, if he did have that appreciation, he did not know that he was committing a crime.

The test as to knowledge of “wrong” which is stated by Dixon C.J. in the Stapleton case is as to whether the accused knew that his act was wrong according to the ordinary principles of reasonable men. I find it difficult to see how this test really differs from the test as to whether he knew he was committing a crime. Surely, according to the ordinary principles of reasonable men, it is wrong to commit a crime. This must be so in relation to the crime of murder. If there is a difference between these tests, and it could be contended that the commission of a particular crime, though known to be illegal, was considered to be normally justifiable in the opinion of ordinary men, I do not see why a person who committed a crime in such circumstances should be protected from conviction if suffering from disease of the mind, and not protected if he committed the crime when sane.

In Porter and in Stapleton, Dixon C.J. went further than testing “wrong” by the application of the principles of ordinary men, and held that, given a disease of the mind, it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. In my opinion, this is not a test of insanity contemplated by s. 16(2). It is, essentially, a subjective test. In my opinion, the test provided in s. 16(2) is not as to whether the accused, by reason of mental disease, could or could not calmly consider whether or not the crime which he committed was morally wrong. He is not to be considered as insane within s. 16(2) if he knew what he was doing and also knew that he was committing a criminal act.

For the foregoing reasons I would dismiss the appeal.

DICKSON J. (with whom LASKIN C.J., SPENCE and BEETZ JJ. concurred), dissenting:— 

… Counsel for the appellant advised the Court that he had prepared his factum and would present oral argument relying upon the concession made by counsel for the Crown that the accused was entitled to a new trial if this Court should hold there was error in charging the jury on the basis that “wrong” meant “contrary to law.” Counsel for the Crown confirmed he had made such concession.

As the consequence of a successful insanity defence is not freedom but an indeterminate detention in a mental hospital, this defence is unlikely to be raised if any less threatening alternative is available. Thus, the defence is raised infrequently and usually when the death sentence or life imprisonment is in the offing. The infrequency of the defence does not, however, serve to diminish the importance of mental disorder as it affects criminal responsibility.

The word “wrong” is ambiguous. It may mean either “illegal” or “morally wrong.” The extended debate over whether “wrong” means legally or morally wrong has given rise to two conflicting lines of authority. The present English authorities, at odds with many earlier cases, hold the view that wrong means contrary to law. Australian, and a number of American cases, hold the opposite view. Canadian cases go in both directions. [a list of cases is provided]

Just as there is a lack of unanimity on the meaning to be ascribed to the word “wrong,” so is there variance of opinion on whether the insanity defence is extended or narrowed by departing from the view that “wrong” means contrary to law. In most cases, it will make little difference, for in serious crime the legal standard and society’s moral judgment are not likely to differ. It would be a rare occasion on which an accused would consider that, in killing, his act was legally wrong but right according to the ordinary standards of reasonable men. “Moral wrong” is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong. Society’s moral judgment may well be identical with the legal standard, but such is not inevitably the case. An offender may know that it is legally wrong to kill but do so in the belief that it is in response to a divine order and therefore not morally wrong. The legal and the moral do not always coincide. …

Although our immediate concern is with the word wrong, the wording of s. 16(2) makes it clear that the section is primarily concerned with mental disease and incapacity resulting therefrom. It is the thinking process of the accused, as opposed to his actual knowledge of wrongness, that should be the focus of inquiry in the defence of insanity. The question is not whether the accused knew that the act was wrong but whether he was capable of knowing it was wrong. Has disease of the mind so affected the capacity of the accused to make a moral choice that he is unable to discern between what is right and what is wrong? Attention must then be directed to the last word of s. 16(2), the word “wrong.” The inquiry must be as to whether Parliament intended the word to be construed in what one might call the popular sense of “wrong” or in the sense of “contrary to law” or “illegal.” Is there any compelling reason for giving the word “wrong” other than the common and ordinary meaning of the word?

Before considering the authorities it would be well, I think to have regard to the internal structure of the Criminal Code. Accepted legal authorities respecting statutory construction confirm the validity of construing one part of a statute by reference to another part of the same statute. If Parliament had intended “wrong” to mean “contrary to law,” one might expect use of the word “unlawful,” which is used in sections of the Code dealing with assembly (s. 64), riots (s. 65), drilling (s. 71), and solemnization of marriage (s. 258) or, possibly the word “illegal,” which is used in s. 215(4) of the Code dealing with arrests.

The French version of s. 16(2) uses the word “mauvais” for the word “wrong” appearing in the English version. Harrap’s New Shorter French and English Dictionary contains a rather lengthy definition of “mauvais” which commences with “evil, ill (thought, omen, etc.); bad, wicked (person)” and continues through many uses of the word, none of which suggest the sense of “contrary to law.”

If one turns then to s. 13 of the Code dealing with the criminal responsibility of children between the ages of seven and 13 years, one finds a provision the structure of which parallels s. 16(2). It reads:

13. No person shall be convicted of an offence in respect of an act or omission on his part while he was seven years of age or more, but under the age of fourteen years, unless he was competent to know the nature and consequences of his conduct and to appreciate that it was wrong.

A child of seven years of age might know the difference between “right” and “wrong” in a moral sense but it seems highly unlikely that a child of tender years would think in terms of “contrary to law.” The effect of s. 13 is to relieve certain children of criminal responsibility because they, like the insane, do not have the capacity to comprehend the moral implications of their harmful acts. …

The M’Naghten Judges said that a person is punishable “if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand Your Lordships to mean the law of the land” [p. 209].

If the Judges had stopped there, we would at least know their attitude to the question whether “wrong” meant moral or legal wrong. The second paragraph in the opinion reads, however (p. 210):

If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if, that act was at the same time contrary to the law of the land, he is punishable.

The concluding sentence draws a clear distinction between (i) knowledge that the act was contrary to the law of the land, and (ii) knowledge that the act was one which the accused knew he ought not to do. …

With the utmost respect, I have come to the conclusion, as did the High Court of Australia, that Windle was wrongly decided. The English law antedating Windle would suggest that if an accused believes his act to be right according to the ordinary standards of reasonable men he is entitled to be acquitted, even though he knew it to be legally wrong. As stated in Glanville Williams, Criminal Law, 2nd ed. (1961), p. 492: “The earlier authorities had gone on moral wrong.” …

The Stapleton formulation would properly exempt a mother who, though aware that killing is contrary to the law of the land, in religious ecstasy kills her child in the insane belief the voice of God has called upon her to offer a sacrifice and atonement; or a man like Hadfield (Hadfield’s Trial (1800), 27 St.Tr. 1281), who suffered from the delusion that the world was coming to an end and that he had been commissioned by God to save mankind by the sacrifice of himself. He knew the act of killing was contrary to law, indeed that he could be hanged for it. He therefore decided in response to his delusion to shoot the King in order to be hanged. Knowledge of the illegality of his act was the reason for doing it. …

The question for the jury is whether mental illness so obstructed the thought processes of the accused as to make him incapable of knowing that his acts were morally wrong. The argument is sometimes advanced that a moral test favours the amoral offender and that the most favoured will be he who had rid himself of all moral compunction. This argument overlooks the factor of disease of the mind. If, as a result of disease of the mind, the offender has lost completely the ability to make moral distinctions and acts under an insane delusion, it can well be said that he should not be criminally accountable. For the foregoing reasons, I would hold that there was error in law in the direction given to the jury as to the meaning of the word “wrong” as used in s. 16(2) of the Criminal Code, in defining insanity and accordingly allow the appeal, quash the conviction, and direct a new trial. …

Appeal dismissed.

 

R. v. Chaulk
Supreme Court of Canada
[1990] 2 C.R. (4th) 1; [1990] 3 S.C.R. 1303

The judgment of Dickson C.J. and Lamer C.J. and La Forest and Cory JJ. was delivered by
Lamer, C.J.:

The Meaning of “Wrong” in s. 16(2)

…The meaning of the term “wrong” for the purposes of s. 16(2) was determined by this Court in R. v. Schwartz, [1977] 1 S.C.R. 673, 67 D.L.R. (3d) 716, 8 N.R. 585, 29 C.C.C. (2d) 477, 34 C.R.N.S. 138. Speaking for the majority, Martland J. held that the capacity to know that an act is wrong in this context means no more than the capacity to know that what one is doing is against the law of the land.

The majority reviewed the principles enunciated in M’Naghten’s Case, supra, and considered their subsequent application by the Court of Criminal Appeal in England and by the High Court of Australia. In M’Naghten’s Case, Lord Chief Justice Tindal stated (at pp. 722-723 [E.R.]):

…to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.

If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.”  (Emphasis added.)

The majority continued by considering the application of the M’Naghten rules by the Court of Criminal Appeal in R. v. Codere (1916), 12 Cr. App. R. 21 (C.A.), and R. v. Windle, [1952] 2 Q.B. 826, [1952] 2 All E.R. 1 (C.A.). In Codere, Lord Chief Justice Reading held (at pp. 27-28):

“It is conceded now that the standard to be applied is whether according to the ordinary standard adopted by reasonable men the act was right or wrong. There may be cases where it is difficult to decide that question, but that is not the case here.…

That is the accepted test, and applying it in this case there can be no room for doubt; once it is clear that the appellant knew that the act was wrong in law, then he was doing an act which he was conscious he ought not to do, and as it was against the law, it was punishable by law; assuming, therefore, that he knew the nature and quality of the act, he was guilty of murder, and was properly convicted.”

…The majority in Schwartz rejected the application of the M’Naghten rules by Dixon C.J. in Stapleton in favour of the decision of the Court of Criminal Appeal in Codere. In their view, the effect of s. 16(2) is to make the defence of insanity available to an accused who, because he suffered from a disease of the mind, did not know that he was committing a crime. The majority did not believe that Dixon C.J.’s test differed from the “legally wrong” test since, “according to the ordinary principles of reasonable men, it is wrong to commit a crime.” Even if there was a difference between the two tests, they could not accept that an insane person, committing an act that he knows to be a crime, could be acquitted if he believed that the act was acceptable according to the standards of reasonable men when a sane person believing such would not be acquitted. Furthermore, the majority rejected Dixon C.J.’s interpretation on the ground that it articulated a subjective approach by examining the individual capacity of an accused to reason as to the wrongfulness of an act (at pp. 701-702):

“In my opinion the test provided in s. 16(2) is not as to whether the accused, by reason of mental disease, could or could not calmly consider whether or not the crime which he committed was morally wrong. He is not to be considered as insane within s. 16(2) if he knew what he was doing and also knew that he was committing a criminal act.”

…With respect for contrary views, it is my opinion that Schwartz was wrongly decided by this Court and that the dissenting opinion of Dickson J. (concurred in by Laskin C.J.C., Spence and Beetz JJ.) is to be preferred. The majority judgment fails, in my respectful view, to appreciate the manner in which insanity renders our normal principles of criminal responsibility inapplicable to an individual as well as the particular objectives of s. 16 of the Code.

I do not dispute the principle that this Court should not easily overrule its prior judgments…

In my opinion, it is appropriate in this case to overrule the majority decision in Schwartz with respect to the meaning of “wrong” in s. 16(2). Dickson C.J.C. described in Bernard four separate factors that would support a decision by this Court to overrule an earlier judgment. These factors were not held to be a comprehensive list, nor was it claimed that they must all be present in a particular case to justify overruling a prior decision. They are instead guidelines to assist this Court in exercising its discretion. The fourth factor that was discussed by Dickson C.J.C., and that is directly relevant to the case at Bar, is whether the prior judgment in the context of penal law is unfavourable to an accused in that it expands the scope of criminal responsibility beyond acceptable limits. Dickson C.J.C. stated (at pp. 860-861 [S.C.R., p. 128 C.R.]):

“Respect for the principle of certainty and the institutional limits imposed upon the law-making functions of the courts should constrain the Court from overruling a prior decision where the effect would be to expand criminal liability. It is not for the courts to create new offences, or to broaden the net of liability, particularly as changes in the law through judicial decision operate retrospectively. The same argument does not apply, however, where the result of overruling a prior decision is to establish a rule favourable to the accused.”

In my view, Schwartz had the effect of expanding the scope of criminal responsibility unacceptably to include persons who, by reason of disease of the mind, were incapable of knowing that an act was wrong according to the normal and reasonable standards of society even though they were aware that the act was formally a crime. It is now necessary for this Court to reconsider its decision in Schwartz in order to redefine the scope of criminal liability in a manner that will bring it into accordance with the basic principles of our criminal law.

The rationale underlying the defence of insanity in Canada, as discussed above under the rubric “The Nature of the Insanity Provisions,” rests on the belief that persons suffering from insanity should not be subject to standard criminal culpability with its resulting punishment and stigmatization. This belief, in turn, flows from the principle that individuals are held responsible for the commission of criminal offences because they possess the capacity to distinguish between what is right and what is wrong.

Section 16(2) of the Code embodies this conception of criminal responsibility by providing that no person shall be convicted of an offence who, at the time of committing the act in question, is in a state of “natural imbecility” or has disease of the mind to such a degree as to render him incapable of “knowing that an act or omission is wrong.” The principal issue in this regard is the capacity of the accused person to know that a particular act or omission is wrong. As such, to ask simply what is the meaning of the word “wrong” for the purpose of s. 16(2) is to frame the question too narrowly. To paraphrase the words of the House of Lords in M’Naghten’s Case, the courts must determine in any particular case whether an accused was rendered incapable, by the fact of his mental disorder, of knowing that the act committed was one that he ought not have done.

Viewed from this perspective, it is plain to me that the term “wrong” as used in s. 16(2) must mean more than simply legally wrong. In considering the capacity of a person to know whether an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of “natural imbecility” or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. This would be the case, for example, if the person suffered from a disease of the mind to such a degree as to know that it is legally wrong to kill but, as described by Dickson J. in Schwartz, kills “in the belief that it is in response to a divine order and therefore not morally wrong” (p. 678).

In applying s. 16(2) to a particular set of facts, it may be established that the accused who attempts to invoke the insanity defence is capable of knowing that he ought not do the act because he knows, first, that the act is contrary to the formal law or, secondly, that the act breaches the standard of moral conduct that society expects of its members. In this regard, subject to the qualification discussed below, I approve of the interpretation of s. 16(2) put forward by Professor Alan Mewett in “Section 16 and ‘Wrong”‘ (1976) 18 Crim. L.Q. 413, at pp. 415-416:

“The question that ought to be asked, it is submitted, is whether the accused, because of a disease of the mind (first hurdle) was rendered incapable (second hurdle) of knowing that this act was something that he ought not to do (third hurdle). If he was capable of knowing that the act was contrary to law and that he ought not to do an act contrary to law, then the defence should not apply. If he was incapable of knowing that it was contrary to law, but capable of knowing that it was an act condemned by people generally, then again the defence should not apply. But if he was incapable of knowing that the act was contrary to law and incapable of knowing that it was an act condemned by people generally, then the defence should apply. This only leaves a situation where he was capable of knowing that the act was contrary to law but incapable both of knowing that to act contrary to law was condemned by people generally and of knowing that this particular act was condemned by people generally. I would have thought that such an accused (who must be the rarest of all individuals) is precisely one who ought to be found not guilty by reason of insanity.”

The qualification that I would make of Professor Mewett’s comments is that the insanity defence should not be made unavailable simply on the basis that an accused knows that a particular act is contrary to law and that he knows, generally, that he should not commit an act that is a crime. It is possible that a person may be aware that it is ordinarily wrong to commit a crime but, by reason of a disease of the mind, believes that it would be “right” according to the ordinary morals of his society to commit the crime in a particular context.- In this situation, the accused would be entitled to be acquitted by reason of insanity.

The test articulated in s. 16(2) is directed, as emphasized above, at an analysis of the capacity of the accused to reason and to understand the meaning of the terms “right” and “wrong”, concepts that demand a moral judgment on the part of every individual in order to be applied in practice. It cannot be determined that an accused does not have the necessary capacity to engage in such moral reasoning simply because he or she does not have the simple ability to retain factual information, for example, the ability to know that a certain act is a crime in the formal sense.…

An interpretation of s. 16(2) that makes the defence available to an accused who knew that he or she was committing a crime, but was unable to comprehend that the act was a moral wrong, will not open the floodgates to amoral offenders or to offenders who relieve themselves of all moral considerations. First, the incapacity to make moral judgments must be causally linked to a disease of the mind; if the presence of a serious mental disorder is not established, criminal responsibility cannot be avoided. Secondly, as was pointed out by Dickson J. in Schwartz “‘[m]oral wrong’ is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong” (p. 678). The accused will not benefit from substituting his own moral code for that of society. Instead, he will be protected by s. 16(2) if he is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society.

In the case at Bar, the trial Judge directed the jury that the insanity defence was not available to the appellants pursuant to the second branch of the test set out in s. 16(2) if it reached the conclusion that the appellants knew, at the time of committing the offence, that the act was contrary to the laws of Canada. Of course, he cannot be faulted for having followed the decision of this Court in Schwartz. Nevertheless, for the reasons discussed above, our interpretation of s. 16(2) in Schwartz was not correct. As a result, I would order a new trial.

The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by
McLachlin J. (dissenting):

The Meaning of “Wrong” in s. 16(2) of the Code

Section 16(2) of the Criminal Code defines insanity. There are two requirements. The first is a “disease of the mind.” The second is that the disease be to an extent that it renders the person incapable either, of (a) appreciating the nature and quality of an act or omission; or (b) of knowing that an act or omission is wrong.

The interpretation of the second arm of the second condition arose at the trial in this case. Following earlier decisions of this Court (in particular R. v. Schwartz, [1977] 1 S.C.R. 673, 67 D.L.R. (3d) 716, 8 N.R. 585, 29 C.C.C. (2d) 477, 34 C.R.N.S. 138), the trial Judge instructed the jury that this condition was filled if the appellants were capable of knowing that their act was legally wrong. The fact that the appellants may not have been capable of appreciating that the act was morally wrong, i.e., that they may have thought it was morally justifiable although legally wrong, was irrelevant.

Lamer C.J.C. has accepted the appellants’ invitation to reconsider. this Court’s earlier conclusion that the capacity to know the act or omission was legally wrong suffices. In his view, an accused who is capable of knowing an act or omission is legally wrong is not subject to the criminal process, if mental illness rendered him or her incapable of knowing the act or omission was morally wrong. I, on the other hand, take the view that it does not matter whether the capacity relates to legal wrongness or moral wrongness - all that is required is that the accused be capable of knowing that the act was in some sense “wrong”. If the accused has this capacity, then it is neither unfair nor unjust to submit the accused to criminal responsibility and penal sanction.…

The Purpose and Theory of Our Insanity Provisions

I turn now to the purpose and theory underlying the insanity provisions. In my view, they too support the view that “wrong” in s. 16(2) of the Code means simply that which one “ought not to do”. The rationale behind the insanity provisions, as discussed earlier in these reasons, is that it is unfair and unjust to make a person who is not capable of conscious choice between right or wrong criminally responsible. Penal sanctions are appropriate only for those who have the ability to reason right from wrong, people capable of appreciating what they ought and ought not to do. A person may conclude that he or she ought not to do an act for a variety of reasons. One may be that it is illegal. Another may be that it is immoral. The reasons for which one concludes that one ought not to do an act are collateral to the fundamental rationale behind the insanity provisions - that criminal conviction is appropriate only where the person is capable of understanding that he or she ought not to do the act in question.

The wider rationale underlying the criminal law generally supports he same view. While other factors may figure, two main mechanisms function to keep people’s conduct within the appropriate legal parameters: (1) a sense of morality, and (2) a desire to obey the law. In most cases, law and morality are co-extensive, but exceptionally they are different. Where morality fails, the legal sanction should not be removed as well. To do so, is to open the door to arguments that absence of moral discernment should excuse a person from the sanction of the criminal law, and thus remove one of the factors which deters inappropriate and destructive conduct. That should not be done lightly. The fact that such arguments could not be entertained without establishing a “disease of the mind” is small comfort when one takes account of the difficulty of defining or diagnosing “disease of the mind.” Recent research seems to suggest that the vast majority of forensic psychiatrists and psychologists, including those who have given evidence with respect to legal insanity in a large number of cases, have no effective understanding of the legal test about which they are expressing an opinion…

To hold that absence of moral discernment due to mental illness should exempt a person who knows that legally he or she ought not to do a certain act is, moreover, to introduce a lack of parallelism into the criminal law; generally, absence of moral appreciation is no excuse for criminal conduct. When the moral mechanism breaks down in the case of an individual who is sane, we do not treat that as an excuse for disobeying the law; for example, in the case of a psychopath. The rationale is that an individual either knows or is presumed to know the law, and the fact that his or her moral standards are at variance with those of society is not an excuse. Why, if the moral mechanism breaks down because of disease of the mind, should it exempt the accused from criminal responsibility where he or she knows, or was capable of knowing, that the act was illegal and hence one which he or she “ought not to do”? Why should deficiency of moral appreciation due to mental illness have a different consequence than deficiency of moral appreciation due to a morally-impoverished upbringing, for example? I see no reason why the policy of the law should differ in the two cases.

The Difficulty of Determining What is Morally Wrong

I turn finally to the practical difficulty imposed by permitting persons who know they ought not to do an act for legal reasons from escaping criminal responsibility on the ground that they were incapable of realizing that the act was immoral. As Colvin, Principles of Criminal Law, op. cit., observes at p. 253, “[t]here is no system of authoritative moral pronouncements which is equivalent to that found in law.”

In Mental Disorder and the Criminal Trial Process (Toronto: Butterworths, 1978), Marc Schiffer expands on this point (at p. 134):

“If . . . we were to judge wrongfulness by the moral standards of society (as the minority in Schwartz suggested), it is submitted that the right-wrong test would become virtually meaningless. In the case of certain crimes (e.g. abortion), even the most lucid individual would have trouble appraising society’s views without conducting an opinion poll. In the case of other crimes (e.g. rape) the most severe psychotic might know that they are morally condemned by society.”

Although abortion is no longer the subject of criminal sanction, it is not difficult to conceive of other criminally proscribed acts (e.g. euthanasia) where wrongfulness in the eyes of society may not necessarily coincide with wrongfulness in the eyes of the law.

The problem with making capacity to appreciate moral wrong the test for criminal responsibility where the incapacity is caused by mental illness, is that of determining what society’s moral judgment will be in every situation. What result is to obtain on those occasions where an accused claims an incapacity to know that his or her unlawful act was morally wrong and, objectively, the act was one for which the moral wrongfulness can be disputed? Certainly a court is in no position to make determinations on questions of morality, nor is it fair to expect a jury to be able to agree on what is morally right or morally wrong. The prospect of greater certainty, and the avoidance of metaphysical arguments on right and wrong is the chief advantage of adhering to the traditional M’Naghten test for criminal responsibility where causative disease of the mind exists - whether the accused, for whatever reason, was capable of appreciating that his or her act is wrong.

The importance of certainty in the criminal law cannot be overestimated. It should be relatively clear when criminal responsibility attaches and when it does not if the criminal law is to have the requisite deterrent effect, and if it is to be seen to function fairly and equitably to all. A person’s criminal responsibility should not hinge on questions of whether an act would be generally perceived as immoral.

 

Winko v. British Columbia (Forensic Psychiatric Institute)
[1999] 2 S.C.R. 625
[1999] S.C.J. No. 31
Supreme Court of Canada

The judgment of Lamer C.J. and Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by
McLACHLIN J.:—

I.         Introduction

1     In every society there are those who commit criminal acts because of mental illness. The criminal law must find a way to deal with these people fairly, while protecting the public against further harms. The task is not an easy one.
2     In 1991 Parliament provided its answer to this challenge: Part XX.1 of the Criminal Code, R.S.C., 1985, c. C-46. The appellant Winko submits that Part XX.1 violates his rights to liberty, security of the person and equality under the Canadian Charter of Rights and Freedoms. The same issue is raised in the companion appeals of Bese v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 722, Orlowski v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 733, and R. v. LePage, [1999] 2 S.C.R. 744.
3     I conclude that Part XX.1 of the Criminal Code protects the liberty, security of the person, and equality interests of those accused who are not criminally responsible ("NCR") on account of a mental disorder by requiring that an absolute discharge be granted unless the court or Review Board is able to conclude that they pose a significant risk to the safety of the public. It follows that Part XX.1 does not deprive mentally ill accused of their liberty or security of the person in a manner contrary to the principles of fundamental justice. Nor does it violate their right to equal treatment under the law.

II.        Facts

4     At the time of the Review Board disposition under appeal, Mr. Winko was a 47-year-old, single, unemployed man living at the Hampton Hotel in downtown Vancouver, British Columbia. He had been diagnosed with the mental illness of chronic residual schizophrenia. Indeed, the appellant has a long history of mental illness and hospitalization. On July 6, 1983, when Mr. Winko was 35, he was arrested for attacking two pedestrians on the street with a knife and stabbing one of them behind the ear. Prior to this incident, Mr. Winko had been hearing voices which he thought were coming from pedestrians saying, "why don't you go and grab a woman and do her some harm?", "you are going to the West End to kill someone", "you know you can't kill a woman", and "you are a coward". Winko was charged and taken to the Forensic Psychiatric Institute ("FPI"), where he continued to report auditory and visual hallucinations. In due course he was charged with aggravated assault, assault with a weapon, and possession of a weapon for purposes dangerous to the public peace. He was tried and found not criminally responsible, [1984] B.C.J. No. 694.
5     From the NCR verdict in 1984 until August 7, 1990, Mr. Winko was held at the FPI. He was considered institutionalized. After his release, he lived in a series of hotels in the downtown eastside area of Vancouver. On June 1, 1994, he failed to appear at his Review Board hearing at the appointed time. However, he came to the Review Board Office later in the day, dirty, malodorous and complaining of being harassed by people on the street. He was readmitted to the FPI on June 6, 1994. He was cooperative, took his medication, and recovered rapidly.
6     Mr. Winko was returned to the community on July 5, 1994. This time, he went to live at the Hampton Hotel, run by the Mental Patients Association. The hotel is staffed by professional mental health workers who encourage residents to live independently. They also encourage residents to take their medication and communicate any concerns to the treatment team assigned to the patient.
7     In September 1994, Mr. Winko once again missed a medication injection, due in part to the failure of his doctor to keep track of the injections (which resulted in no one reminding Mr. Winko of the need for treatment). This led to a recurrence of the voices, and Mr. Winko voluntarily returned to the FPI in October 1994. He recovered rapidly and soon returned to the Hampton Hotel, where he has resided ever since.
8     Mr. Winko's residence at the Hampton Hotel has never presented any particular problems. In general he interacts well with the other residents at the hotel. Despite occasional supervised breaks from medication due to side-effects (the most recent break of 18 months occurring in 1994), he has never been physically aggressive to anyone since the offences of 1983.
9     Mr. Winko's case illustrates many features often faced by a court or Review Board considering the status of an NCR accused: a concern, often based on events long past, requiring consideration of public safety before full release into society; a countervailing record of peaceful behaviour in more recent years; a medical record that indicates difficulties staying on medication and the possibility of recurrence of illness when lapses occur; and the fact that for most of his adult life, Mr. Winko has been subject to constraints on his liberty with no immediate prospect of release. This said, different cases present different scenarios. Sometimes the harm that leads to NCR status is as trivial as shoplifting. Sometimes it is as serious as homicide. Sometimes the accused has a record of perfect compliance with medication and medical directives. Sometimes compliance is a problem. Justice requires that the NCR accused be accorded as much liberty as is compatible with public safety. The difficulty lies in devising a rule and a system that permits this to be accomplished in each individual's case.

III.      Judgments Below

10     The Review Board considered Mr. Winko's status on May 29, 1995. The Review Board consisted of three people: N. J. Prelypchan, who acted as chairperson, Susan Irwin, and Dr. A. Marcus, a psychiatrist. By a vote of two to one, the Review Board granted Mr. Winko a conditional discharge. Dr. Marcus voted in favour of an absolute discharge. The majority expressed the opinion that Mr. Winko could become a significant risk to public safety in "certain circumstances", and suggested that a conditional discharge was consistent with the British Columbia Court of Appeal's decision in Orlowski v. British Columbia (Attorney-General) (1992), 75 C.C.C. (3d) 138 ("Orlowski No. 1"). Ms. Irwin added: "I clearly acknowledge that there haven't been any incidents of threat to other people." Dr. Marcus, noting the absence of any evidence that Mr. Winko had been a danger to anyone since the index offence, concluded that there was "no indication ... that he would relapse and continue to be or again commit an act which one could call a significant threat".
11     On July 29, 1996, a majority of the British Columbia Court of Appeal upheld on its merits the Review Board's decision to grant Mr. Winko a conditional discharge: (1996), 79 B.C.A.C. 1.…

IV.       The Statutory Provisions

12     The following provisions of the Criminal Code are at issue:

[16.(1), 672.34, 672.38, 672.39, 672.4(1), 672.41(1), and]

672.54 Where a court or Review Board makes a disposition pursuant to subsection 672.45(2) or section 672.47, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:
(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;
(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or
(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.

672.81 (1) A Review Board shall hold a hearing not later than twelve months after making a disposition and every twelve months thereafter for as long as the disposition remains in force, to review any disposition that it has made in respect of an accused, other than an absolute discharge under paragraph 672.54(a).
(2) The Review Board shall hold a hearing to review any disposition made under paragraph 672.54(b) or (c) as soon as is practicable after receiving notice that the person in charge of the place where the accused is detained or directed to attend
(a) has increased the restrictions on the liberty of the accused significantly for a period exceeding seven days; or
(b) requests a review of the disposition.

13     Mr. Winko and his co-appellants on the companion appeals submit that s. 672.54 infringes their rights to liberty and security of the person guaranteed by s. 7 and their equality rights guaranteed by s. 15(1) of the Charter. They argue that neither infringement is justified under s. 1 of the Charter. …

VI.       Analysis

A.        What Section 672.54 of the Criminal Code Requires

15     The appellant argues that s. 672.54 infringes his rights to liberty, security of the person, and equality as guaranteed by the Charter. Before these arguments can be considered, we must ascertain precisely how s. 672.54 affects those rights. In a very real sense, the dispute on this appeal focuses not on the Charter, so much as on how s. 672.54 should be read. The appellant and his co-appellants contend that the section creates a presumption of dangerousness and improperly shifts the burden of proving the contrary to the NCR accused, introducing the possibility that he or she may remain under liberty constraints indefinitely. They argue that, in the past, courts and Review Boards have interpreted these provisions of the Criminal Code as creating such a presumption.
16     Regardless of what courts and Review Boards may have done in the past, I cannot accept the interpretation of s. 672.54 proposed by the appellants. The history, purpose and wording of s. 672.54 of the Code indicate that Parliament did not intend NCR accused to carry the burden of disproving dangerousness. Rather, Parliament intended to set up an assessment-treatment system that would identify those NCR accused who pose a significant threat to public safety, and treat those accused appropriately while impinging on their liberty rights as minimally as possible, having regard to the particular circumstances of each case. I conclude that this scheme fulfills these goals in a manner that does not infringe the appellants' rights under either s. 7 or s. 15(1) of the Charter.

1.         The History, Structure and Purpose of Part XX.1

17     Historically at common law, those who committed criminal acts while mentally ill were charged and required to stand trial like other offenders. At the end of the trial, they were either acquitted or convicted and sentenced accordingly. The common law permitted no special verdict or disposition. The only concession made to the illness that induced the offence was the accused's right to raise the defence that he or she was unable to understand the nature and quality of the act, the M'Naghten Rules: see M'Naghten's Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718 (H.L.). The law held that such incapacity deprived the mentally ill accused person of the criminal intent or mens rea required for the offence. Sanity, however, was presumed; it was up to the accused to demonstrate the contrary.
18     Until 1990, the provisions of the Criminal Code dealing with criminal acts committed as a result of mental illness reflected the common law approach of treating those offences like any others, subject to the special defence of not understanding the nature and quality of the act. The only verdicts available under the Criminal Code were conviction or acquittal. However, even where the accused was acquitted on the basis of mental illness, he or she was not released, but was automatically detained at the pleasure of the Lieutenant Governor in Council: Criminal Code, s. 614(2) (formerly s. 542(2)) (repealed S.C. 1991, c. 43, s. 3).
19     The first Charter challenge against this system came in R. v. Chaulk, [1990] 3 S.C.R. 1303, where a majority of this Court ruled that the requirement that the accused prove an inability to understand the nature and quality of his or her act violated the accused's right to be presumed innocent, but that the burden was constitutionally saved under s. 1. A second Charter challenge came in R. v. Swain, [1991] 1 S.C.R. 933, where this Court struck down the provision for automatic, indefinite detention of an NCR accused on the basis that it violated the accused's s. 7 liberty rights.
20     In response to Swain, Parliament introduced sweeping changes by enacting Part XX.1 of the Criminal Code in 1991: An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and the Young Offenders Act in consequence thereof, S.C. 1991, c. 43. Part XX.1 reflected an entirely new approach to the problem of the mentally ill offender, based on a growing appreciation that treating mentally ill offenders like other offenders failed to address properly the interests of either the offenders or the public. The mentally ill offender who is imprisoned and denied treatment is ill-served by being punished for an offence for which he or she should not in fairness be held morally responsible. At the same time, the public facing the unconditional release of the untreated mentally ill offender was equally ill-served. To achieve the twin goals of fair treatment and public safety, a new approach was required.
21     Part XX.1 rejects the notion that the only alternatives for mentally ill people charged with an offence are conviction or acquittal; it proposes a third alternative. Under the new scheme, once an accused person is found to have committed a crime while suffering from a mental disorder that deprived him or her of the ability to understand the nature of the act or that it was wrong, that individual is diverted into a special stream. Thereafter, the court or a Review Board conducts a hearing to decide whether the person should be kept in a secure institution, released on conditions, or unconditionally discharged. The emphasis is on achieving the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately….
23     Part XX.1 of the Criminal Code rests on the characterization of the person who commits an offence while mentally ill as "not criminally responsible", or NCR: s. 16. Under the new regime, once a judge or jury enters a verdict of "not criminally responsible on account of mental disorder", the person found NCR becomes subject to the provisions of Part XX.1. The court may, either on its own motion or on application by the prosecutor or the NCR accused, hold a disposition hearing: s. 672.45(1). At such a hearing, the court may make an immediate disposition with respect to the accused if it is satisfied that a disposition should be made without delay and that it can do so readily in the circumstances: s. 672.45(2). If the court does not make a disposition, the custodial provisions in force at the time of the verdict continue until a hearing is held by the Review Board of the province, established under s. 672.38 of the Code: s. 672.46(1).
24     The Review Board is chaired by a judge of the Federal Court, a judge of a superior, district or county court of a province, or a person who is qualified for appointment to or has retired from such a judicial office: s. 672.4(1). At least one member must be a psychiatrist, and where only one member is a psychiatrist, at least one other member must have training and experience in the field of mental health and be entitled to practice medicine or psychology: ss. 672.39 and 672.41.
25     If the court has not made a disposition with respect to the accused after the NCR verdict, the Review Board must hold a hearing and make a disposition as soon as practicable, but not later than 45 days after the verdict is rendered (although the court may extend this time period to 90 days in exceptional circumstances): ss. 672.47(1) and 672.47(2). If the court has made any disposition other than an absolute discharge, the Review Board must hold a hearing and make a disposition before that disposition expires and, in any event, within 90 days after the court's initial order: ss. 672.47(3) and 672.55(2).
26     Whether the hearing is held by the court after the NCR verdict is rendered or by the Review Board at a later date, the proceedings are conducted in accordance with s. 672.5. The procedure at the hearing is informal. The Crown does not necessarily appear. The court or Review Board may designate as a party any person who has a substantial interest in protecting the rights of the NCR accused: s. 672.5(4). The NCR accused has a right to counsel and is entitled to be present throughout, except in certain specified circumstances: s. 672.5(7), (9), (10). Any party may present evidence, make oral or written submissions, call witnesses, cross-examine any witnesses called by another party and, on application, cross-examine any person who has submitted a written assessment report to the court or Review Board: s. 672.5(11). If the hearing is being held by a Review Board, that body has all the powers conferred on a commissioner by ss. 4 and 5 of the Inquiries Act, R.S.C., 1985, c. I-11: ss. 672.43 and 672.5. Finally, any party may request that the court or Review Board compel the attendance of witnesses: s. 672.5(12).
27     Any disposition regarding an NCR accused must be made in accordance with s. 672.54. The court or Review Board may order that the NCR accused be discharged absolutely, that he or she be discharged on conditions, or that he or she be detained in a hospital and subject to the conditions the court or Review Board considers appropriate. Although the court or Review Board has a wide latitude in determining the appropriate conditions to be imposed, it can only order that psychiatric or other treatment be carried out if the NCR accused consents to that condition, and the court or Review Board considers it to be reasonable and necessary: s. 672.55(1).
28     The Review Board must hold a further hearing within 12 months of making any disposition other than an absolute discharge and further reviews must be conducted at least every 12 months thereafter: s. 672.81(1). A further hearing also must be held as soon as practicable when the restrictions on the liberty of the NCR accused are increased significantly, or upon the request of the person in charge of the place where the accused is detained or directed to attend: s. 672.81(2). Apart from these mandatory reviews, the Review Board may review any of its dispositions at any time, on the request of the accused or any other party: s. 672.82(1). Any party may appeal against a disposition by a court or the Review Board to the Court of Appeal on a question of law or fact or a question of mixed law and fact: s. 672.72(1).

30     These procedures and the principles underlying them represent a fundamental departure from the common law approach to those who commit offences while mentally ill. Instead of the stark alternatives of guilt or innocence, leavened only by the M'Naghten Rules, Part XX.1 offers a new alternative. The NCR accused is to be treated in a special way in a system tailored to meet the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately. Under the new approach, the mentally ill offender occupies a special place in the criminal justice system; he or she is spared the full weight of criminal responsibility, but is subject to those restrictions necessary to protect the public.
31     The verdict of NCR under Part XX.1 of the Criminal Code, as noted, is not a verdict of guilt. Rather, it is an acknowledgement that people who commit criminal acts under the influence of mental illnesses should not be held criminally responsible for their acts or omissions in the same way that sane responsible people are. No person should be convicted of a crime if he or she was legally insane at the time of the offence: Swain, supra, at p. 976. Criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong: Chaulk, supra, at p. 1397; G. Ferguson, "A Critique of Proposals to Reform the Insanity Defence" (1989), 14 Queen's L.J. 135, at p. 140. For this reason, s. 16(1) of the Criminal Code exempts from criminal responsibility those suffering from mental disorders that render them incapable either of appreciating the nature and quality of their criminal acts or omissions, or of knowing that those acts or omissions were wrong.
32     Nor is the verdict that a person is NCR a verdict of acquittal. Although people may be relieved of criminal responsibility when they commit offences while suffering from mental disorders, it does not follow that they are entitled to be released absolutely. Parliament may properly use its criminal law power to prevent further criminal conduct and protect society: Swain, at p. 1001. By committing acts proscribed by the Criminal Code, NCR accused bring themselves within the criminal justice system, raising the question of what, if anything, is required to protect society from recurrences….
33     The preventative or protective jurisdiction exercised by the criminal law over NCR offenders extends only to those who present a significant threat to society. As Lamer C.J. stated in Swain, at p. 1008: "As the individual becomes less of a threat to society, the criminal law progressively loses authority". The only justification there can be for the criminal law detaining a person who has not been found guilty (or is awaiting trial on an issue of guilt) is maintaining public safety. Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application.
34     This raises a terminological point. Under the old provisions of the Criminal Code based on the common law rule, the accused relieved of criminal responsibility by reason of insanity was referred to as an NCR "acquittee". This was because, as explained, the person was viewed as acquitted for want of mens rea or criminal intent: Chaulk, supra; Swain, supra. Under Part XX.1, by contrast, the NCR offender is not acquitted. He or she is simply found to be not criminally responsible. People who fall within the scope of Part XX.1 are more appropriately referred to as simply NCR accused, the terminology in fact employed by the Code, and which has been used in these reasons.
35     If the NCR verdict is not a verdict of guilt or an acquittal, neither is it a verdict that the NCR accused poses a significant threat to society. Part XX.1 does not presume the NCR accused to pose such a threat. Rather, it requires the court or the Review Board to assess whether such a threat exists in each case. Part XX.1 thus recognizes that, contrary to the stereotypical notions that some may still harbour, the mentally ill are not inherently dangerous. The mentally ill have long been subject to negative stereotyping and social prejudice in our society based on an assumption of dangerousness: Swain, supra, at p. 994; Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, at p. 586. …
36     In 1975, the Law Reform Commission of Canada recognized that these negative stereotypes of the mentally ill had found their way into the criminal justice system:

This widely held fear of the mad criminal makes acceptable the confinement and lengthy detention of mentally disordered accused or offenders in circumstances which their "sane" counterpart would be either less severely sanctioned or released outright. These attitudes are reflected in the element of preventive detention implicit in the remand and dispositional provisions of the Criminal Code and in the choice of procedures of the personnel dealing with the mentally ill in the criminal process.
(Working Paper 14, The Criminal Process and Mental Disorder, at p. 14.)
37     As the stereotype of the "mad criminal" has been undermined by research, we have learned that only a few mental disorders are associated with increased rates of violent behaviour: J. Cocozza and H. Steadman, "The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence" (1976), 29 Rutgers L. Rev. 1084, at pp. 1088-89; S. Hodgins, Mental Disorder and Crime (1993); Law Reform Commission, supra, at p. 19. And for these disorders, it is not clear whether the increased rates of violent behaviour result from the illness itself or from the socially marginalizing side-effects of the illness. …

Research shows that NCR accused are no more likely than their convicted counterparts to commit any offence, let alone a violent offence, upon release: M. E. Rice, et al. "Recidivism Among Male Insanity Acquittees" (1990), 18 J. Psychiatry & Law 379, at pp. 393-95; G. T. Harris, M. E. Rice and C. A. Cormier, "Length of Detention in Matched Groups of Insanity Acquittees and Convicted Offenders" (1991), 14 Int'l J. L. & Psy. 223, at p. 234; J. R. P. Ogloff et al., "Empirical Research Regarding the Insanity Defense: How Much Do We Really Know?", Chapter 6, in J. R. P. Ogloff, ed., Law and Psychology: The Broadening of the Discipline (1992), 171, at p. 184….

39     In the spirit of supplanting the old stereotypes about mentally ill offenders, Part XX.1 supplements the traditional guilt-innocence dichotomy of the criminal law with a new alternative for NCR accused—an alternative of assessment to determine whether the person poses a continuing threat to society coupled with an emphasis on providing opportunities to receive appropriate treatment. The twin branches of the new system—assessment and treatment—are intimately related. Treatment, not incarceration, is necessary to stabilize the mental condition of a dangerous NCR accused and reduce the threat to public safety created by that condition. …
40     Part XX.1 protects society. If society is to be protected on a long-term basis, it must address the cause of the offending behaviour—the mental illness. It cannot content itself with locking the ill offender up for a term of imprisonment and then releasing him or her into society, without having provided any opportunities for psychiatric or other treatment. Public safety will only be ensured by stabilizing the mental condition of dangerous NCR accused.
41     Part XX.1 also protects the NCR offender. The assessment-treatment model introduced by Part XX.1 of the Criminal Code is fairer to the NCR offender than the traditional common law model. The NCR offender is not criminally responsible, but ill. Providing opportunities to receive treatment, not imposing punishment, is the just and appropriate response. As Goldie J.A. stated in Davidson v. British Columbia (Attorney-General) (1993), 87 C.C.C. (3d) 269 (B.C.C.A.), at p. 277:

[T]he treatment of one unable to judge right from wrong is intended to cure the defect. It is not penal in purpose or effect. Where custody is imposed on such a person, the purpose is prevention of antisocial acts, not retribution.

See generally D. Laberge and D. Morin, "The Overuse of Criminal Justice Dispositions: Failure of Diversionary Policies in the Management of Mental Health Problems" (1995), 18 Int'l J. L. & Psy. 389, at p. 389. The need for treatment rather than punishment is rendered even more acute by the fact that the mentally ill are often vulnerable and victimized in the prison setting, as well as by changes in the health system that many suggest result in greater numbers of the mentally ill being caught up in the criminal process. See S. Davis, "Assessing the 'Criminalization' of the Mentally Ill in Canada", Can. J. Psychiatry, 37(8) (October 1992), at pp. 532-38.

42     By creating an assessment-treatment alternative for the mentally ill offender to supplant the traditional criminal law conviction-acquittal dichotomy, Parliament has signalled that the NCR accused is to be treated with the utmost dignity and afforded the utmost liberty compatible with his or her situation. The NCR accused is not to be punished. Nor is the NCR accused to languish in custody at the pleasure of the Lieutenant Governor, as was once the case. Instead, having regard to the twin goals of protecting the safety of the public and treating the offender fairly, the NCR accused is to receive the disposition "that is the least onerous and least restrictive" one compatible with his or her situation, be it an absolute discharge, a conditional discharge or detention: s. 672.54.
43     In summary, the purpose of Part XX.1 is to replace the common law regime for the treatment of those who offend while mentally ill with a new approach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. Under Part XX.1, the NCR accused is neither convicted nor acquitted. Instead, he or she is found not criminally responsible by reason of illness at the time of the offence. This is not a finding of dangerousness. It is rather a finding that triggers a balanced assessment of the offender's possible dangerousness and of what treatment-associated measures are required to offset it. Throughout the process the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1's goals of public protection and fairness to the NCR accused.

2.         The Wording and Function of Section 672.54

44     The specific wording of s. 672.54 indicates that the provision seeks to further the aims of Part XX.1 of protecting the public while preserving maximum liberty of the NCR accused through the assessment-treatment model.….
62     [T]he duties of a court or Review Board that is charged with interpreting s. 672.54 may, for practical purposes, be summarized as follows:

1. The court or Review Board must consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused. The court or Review Board is required in each case to answer the question: does the evidence disclose that the NCR accused is a "significant threat to the safety of the public"?
2. A "significant threat to the safety of the public" means a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying. The conduct giving rise to the harm must be criminal in nature.
3. There is no presumption that the NCR accused poses a significant threat to the safety of the public. Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat. The court or Review Board cannot avoid coming to a decision on this issue by stating, for example, that it is uncertain or cannot decide whether the NCR accused poses a significant threat to the safety of the public. If it cannot come to a decision with any certainty, then it has not found that the NCR accused poses a significant threat to the safety of the public.
4. The proceeding before the court or Review Board is not adversarial. If the parties do not present sufficient information, it is up to the court or Review Board to seek out the evidence it requires to make its decision. Where the court is considering the matter, it may find in such circumstances that it cannot readily make a disposition without delay and that it should be considered by the Review Board. Regardless of which body considers the issue, there is never any legal burden on the NCR accused to show that he or she does not pose a significant threat to the safety of the public.
5. The court or Review Board may have recourse to a broad range of evidence as it seeks to determine whether the NCR accused poses a significant threat to the safety of the public. Such evidence may include the past and expected course of the NCR accused's treatment, if any, the present state of the NCR accused's medical condition, the NCR accused's own plans for the future, the support services existing for the NCR accused in the community, and the assessments provided by experts who have examined the NCR accused. This list is not exhaustive.
6. A past offence committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused continues to pose a significant risk to the safety of the public. However, the fact that the NCR accused committed a criminal act in the past may be considered together with other circumstances where it is relevant to identifying a pattern of behaviour, and hence to the issue of whether the NCR accused presents a significant threat to public safety. The court or Review Board must at all times consider the circumstances of the individual NCR accused before it.
7. If the court or Review Board concludes that the NCR accused is not a significant threat to the safety of the public, it must order an absolute discharge.
8. If the court or Review Board concludes that the NCR accused is a significant threat to the safety of the public, it has two alternatives. It may order that the NCR accused be discharged subject to the conditions the court or Review Board considers necessary, or it may direct that the NCR accused be detained in custody in a hospital, again subject to appropriate conditions.
9. When deciding whether to make an order for a conditional discharge or for detention in a hospital, the court or Review Board must again consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused, and make the order that is the least onerous and least restrictive to the NCR accused.

63     This brings us to the question of whether s. 672.54, properly interpreted, violates the NCR accused's rights under the Charter.

B.        Does Section 672.54 of the Criminal Code Infringe Section 7 of the Charter?


68     The first submission is that the standard of "significant threat to the safety of the public" in s. 672.54 is too vague. A law will only be found to be unconstitutionally vague if it so lacks precision that it does not give sufficient guidance for legal debate: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at pp. 638-40. As this Court has acknowledged, this is a relatively high threshold. Laws must of necessity cover a variety of situations. Given the infinite variability of conduct, it is impossible to draft laws that precisely foresee each case that might arise. It is the task of judges, aided by precedent and considerations like the text and purpose of a statute, to interpret laws of general application and decide whether they apply to the facts before the court in a particular case. This process is not in breach of the principles of fundamental justice; rather, it is in the best tradition of our system of justice.
69     The phrase "significant threat to the safety of the public" satisfies the test of providing sufficient precision for legal debate. The standard of "public safety" was found not unconstitutionally vague in R. v. Morales, [1992] 3 S.C.R. 711. "Significant threat" has been applied by lower courts without difficulty: Davidson, supra; R. v. Peckham (1994), 19 O.R. (3d) 766 (C.A.). Without purporting to define the term exhaustively, the phrase conjures a threat to public safety of sufficient importance to justify depriving a person of his or her liberty. As I stated earlier, there must be a foreseeable and substantial risk that the NCR accused would commit a serious criminal offence if discharged absolutely. It is impossible to predict or catalogue in advance all the types of conduct that may threaten public safety to this extent. It must be left for the court or the Review Board to determine whether the conduct in the case it is assessing meets this standard. In discharging this task, the court or Review Board will bear in mind the high value our society places on individual liberty, as reflected in the Charter. It will also bear in mind the need to protect society from significant threats. The final determination is made after hearing evidence and considering the need to protect individual liberty as much as possible as well as the need to protect society. This process, as I have outlined it above, does not violate the principles of fundamental justice.
70     The second contention is that s. 672.54 improperly shifts the burden to the NCR accused to prove that he or she will not pose a significant threat to public safety, in violation of the basic maxim that it is for the State, which is depriving a person of liberty, to justify that deprivation. On the interpretation of s. 672.54 proposed earlier, this submission must also fail. Section 672.54 does not create a presumption that an NCR accused poses a significant threat to public safety. Rather, the court or Review Board must have a hearing upon the rendering of an NCR verdict to determine whether the NCR accused actually does, in fact, pose such a threat. Nor does the section require the NCR accused to prove the absence of a significant threat to public safety. It is for the court or Review Board, acting in an inquisitorial capacity, to investigate the situation prevailing at the time of the hearing and determine whether the accused poses a significant threat to the safety of the public. If the record does not permit it to conclude that the person constitutes such a threat, the court or Review Board is obliged to make an order for unconditional discharge. If the court or Review Board finds that the person does pose such a threat, it must proceed to make an order discharging the NCR accused on conditions or detaining him or her in a hospital. In all cases, the court or Review Board must make the disposition that is the least restrictive of the NCR accused's liberty possible. This process does not violate the principles of fundamental justice.
71     The third way s. 672.54 is argued to violate s. 7 of the Charter is through overbreadth. The question is whether the means chosen by the State are broader than necessary to achieve the State objective: R. v. Heywood, [1994] 3 S.C.R. 761. The dual objectives of Part XX.1, and s. 672.54 in particular, are to protect the public from the NCR accused who poses a significant threat to public safety while safeguarding the NCR accused's liberty to the maximum extent possible. To accomplish these goals, Parliament has stipulated (on the interpretation of s. 672.54 set out above) that unless it is established that the NCR accused is a significant threat to public safety, he must be discharged absolutely. In cases where such a significant threat is established, Parliament has further stipulated that the least onerous and least restrictive disposition of the accused must be selected. In my view, this scheme is not overbroad. It ensures that the NCR accused's liberty will be trammelled no more than is necessary to protect public safety. It follows that I cannot agree with the contrary decision of the Manitoba Court of Appeal in R. v. Hoeppner, [1999] M.J. No. 113 (QL).
72     In addition to the safeguards of the NCR accused's liberty found in s. 672.54, Part XX.1 further protects his or her liberty by providing for, at minimum, annual consideration of the case by the Review Board: s. 672.81. The NCR accused has the right to appeal to the Court of Appeal a disposition made by a court or Review Board: s. 672.72. If a court or Review Board fails to interpret and apply s. 672.54 correctly and unduly impinges on the NCR accused's liberty, the NCR accused therefore has an appropriate remedy.
73     For these reasons, I conclude that the legislative scheme Parliament has established to deal with persons found not criminally responsible for offences does not infringe s. 7 of the Charter.

C.        Does Section 672.54 of the Criminal Code Infringe Section 15 of the Charter?

74     The Charter's equality guarantee forbids, among other things, laws or other government actions that treat an individual unequally on the basis of stereotypical group-based distinctions. Such actions are repugnant to our constitutional order because instead of treating an individual as equally deserving of concern, respect, and consideration, they disadvantage that individual arbitrarily and stereotypically.
75     The central purpose of the guarantee in s. 15(1) is to protect an individual's right to be treated with dignity. Our Court has recently re-affirmed this principle in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, where Iacobucci J. had occasion to discuss "human dignity" this way, at para. 53:

What is human dignity? There can be different conceptions of what human dignity means. For the purpose of analysis under s. 15(1) of the Charter, however, the jurisprudence of this Court reflects a specific, albeit non-exhaustive, definition. As noted by Lamer C.J. in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 554, the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?

The effect of a law on the dignity of the claimant is to be assessed from the perspective of a "reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the claimant": Law, at para. 60, per Iacobucci J. All the circumstances must be considered when answering this fundamental question. What is relevant in a particular case will vary with the situation.

85     The question here is whether s. 672.54 is discriminatory in the substantive sense denoted by our s. 15(1) jurisprudence. It will be apparent from the earlier discussion of the legislative history of Part XX.1 that it was adopted for the purpose of eliminating the stereotyping and stigmatization that mentally ill accused had historically suffered. The stereotype of the "mad offender" too often led to the institutionalization of an acquitted accused or worse, incarceration in prisons where they were denied the medical attention they required and were subjected to abuse. By forcing an accused to face indefinite detention at the pleasure of the Lieutenant Governor in Council, on the assumption that such confinement was necessary for purposes of public safety, it encouraged the characterization of mentally ill people as quasi-criminal and contributed to the view that the mentally ill were always dangerous, a view we now know to be largely unfounded. In many cases, indeed, it treated people who had committed no crime and indeed were not capable of criminal responsibility worse than true criminals, sometimes using jails as the places of detention. For all these reasons and more, Parliament enacted Part XX.1 of the Criminal Code.
86     It is thus clear that it was not the intention of Parliament to discriminate against NCR accused in enacting Part XX.1 of the Criminal Code. Rather, it was Parliament's intention to combat discrimination and treat individuals who commit criminal acts which they cannot know are wrong in a way appropriate to their true situation. But good intentions, while important, are not enough to establish lack of discrimination. We must go further and ask whether in its effect Part XX.1 reflects a stereotypical application of presumed group characteristics or otherwise denies the essential dignity of NCR accused….
88     The essence of stereotyping, as mentioned above, lies in making distinctions against an individual on the basis of personal characteristics attributed to that person not on the basis of his or her true situation, but on the basis of association with a group: Andrews, supra, at pp. 174-75; Law, supra, at para. 61. The question is whether Part XX.1 in effect operates against individual NCR accused in this way. In my view, it does not. At every stage, Part XX.1 treats the individual NCR accused on the basis of his or her actual situation, not on the basis of the group to which he or she is assigned. Before a person comes under Part XX.1, there must be an individual assessment by a trial judge based on evidence with full access to counsel and other constitutional safeguards. A person falls under Part XX.1 only if the judge is satisfied that he or she was unable to know the nature of the criminal act or that it was wrong. The assessment is based on the individual's situation. It does not admit of inferences based on group association. More importantly, the disposition of the NCR accused is similarly tailored to his or her individual situation and needs, and is subject to the overriding rule that it must always be the least restrictive avenue appropriate in the circumstances. Finally, the provision for an annual review (at a minimum) of the individual's status ensures that his or her actual situation as it exists from time to time forms the basis of how he or she is to be treated….

91     Earlier in these reasons, I rejected the view that Part XX.1 perpetuates the view that all NCR are dangerous, or even presumptively dangerous. On the contrary, in neither its purpose nor its effect does the differential treatment mandated by Part XX.1 send a negative message to society about the NCR accused. Nor can it reasonably be understood to demean their dignity as individual human beings. Rather, the process it lays down and the treatment options for which it provides embody the message that every NCR accused is equally entitled to all protections available to other people, subject only to such constraints as may be required as a result of his or her illness in the interest of public safety. In its purpose and effect, it reflects the view that NCR accused are entitled to sensitive care, rehabilitation and meaningful attempts to foster their participation in the community, to the maximum extent compatible with the individual's actual situation.

94     In asserting that NCR accused must be treated "the same" as criminally responsible offenders who commit the same criminal act, the appellants assume that the infringement of their liberty is meant to serve the same function that it does for those found guilty of criminal offences. As I noted, this is mistaken. Any restrictions on the liberty of NCR accused are imposed for essentially rehabilitative and not penal purposes. In the words of Taylor J.A., unlike the sanctions faced by a convicted person, the scheme that addresses NCR accused "exacts no penalty, imposes no punishment and casts no blame": Blackman v. British Columbia (Review Board) (1995), 95 C.C.C. (3d) 412 (B.C.C.A.), at p. 433. Accordingly, a formalistic comparison of the "sentences" imposed on these two types of individuals belies a purposive understanding of the statutory provisions in issue.

 

R. v. Whittle
Supreme Court of Canada
[1994] 32 C.R. (4th) 1; [1994] 2 S.C.R. 914

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

[The following is an overview of] the regime in place for the trial of persons alleged to suffer from mental disability. By virtue of s. 16 of the Criminal Code, persons suffering a disease of the mind in the circumstances defined in that section are exempted from criminal liability and punishment. The section embodies the policy of the law that such persons are sick as opposed to blameworthy and should be treated rather than punished. See R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1336. These persons are not, however, exempt from being tried. Part XX.1 of the Criminal Code contains detailed provisions providing for mental assessments by physicians and for determination of the fitness of persons suffering from mental disorders to stand trial. Section 672.23 provides that where, at any stage of the proceedings, the court believes on reasonable grounds that the accused is unfit to stand trial, it may direct the trial of that issue. The application can be made on the court's own motion or by the accused or the prosecutor. Many accused persons who are found not guilty by reason of a mental disorder are fit to stand trial. The fact that an accused is not criminally responsible within the meaning of s. 16 does not mean that he or she is unfit to stand trial. If the contrary were true there would be little purpose in providing for the plea authorized by s. 16. Most persons who suffered from the mental disorder defined in the section would be exempted from trial and would not get to plead until they had recovered subsequent to the date of the offence.

The test for fitness to stand trial is quite different from the definition of mental disorder in s. 16. It is predicated on the existence of a mental disorder and focuses on the ability to instruct counsel and conduct a defence. That test which was developed under the common law is now codified in s. 2 of the Code as follows:

2. ...
"unfit to stand trial" means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
(a ) understand the nature or object of the proceedings,
(b ) understand the possible consequences of the proceedings, or
(c ) communicate with counsel.

It requires limited cognitive capacity to understand the process and to communicate with counsel. In R. v. Taylor (1992), 77 C.C.C. (3d) 551 [17 C.R. (4th) 371], the Ontario Court of Appeal, after reviewing the authorities, held that the trial judge erred in concluding that the accused must be capable of making rational decisions beneficial to him. At p. 567 [C.C.C., p. 387 C.R.], Lacourcière J.A., on behalf of the court, stated:

The "limited cognitive capacity" test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have a trial within a reasonable time.

Accordingly, provided the accused possesses this limited capacity, it is not a prerequisite that he or she be capable of exercising analytical reasoning in making a choice to accept the advice of counsel or in coming to a decision that best serves her interests.

The rationale that operates to require an accused person to stand trial notwithstanding a disease of the mind has some attraction with respect to pre-trial procedures. If an accused is exempted from participation in normal investigatory procedures by reason of a mental disorder, then the regime that has been established for the treatment of persons who are mentally ill will frequently be bypassed.

 

* * *

Stephen, Criminal Code (Indictable Offenses) Bill, 1878

Section 20
Insanity

No act shall be an offence if the person who does it is at the time when it is done prevented, either by defective mental power or by any disease affecting his mind,

(a) from knowing the nature of his act;
(b) from knowing either that the act is forbidden by law or that it is morally wrong; or
(c) if such person was at the time when the act was done, by reason of any such cause as aforesaid, in such a state that he would not have been prevented from doing that act by knowing that if he did do it the greatest punishment permitted by law for such an offence would be instantly inflicted upon him, provided that this provision shall not apply to any person in whom such a state of mind has been produced by his own default.
An act may be an offence although the mind of the person who does it is affected by disease or is deficient in power, if such disease or deficiency does not in fact produce one or other of the effects above mentioned in reference to that act.

 

Criminal Code Bill Commission, 1879 Draft

Section 22
Insanity

If it be proved that a person who has committed an offence was at the time he committed the offence insane so as not to be responsible for that offence, he shall not therefore be simply acquitted, but shall be found not guilty on the ground of insanity.

To establish a defence on the ground of insanity, it must be proved that the offender was at the time when he committed the act labouring under natural imbecility or disease of or affecting the mind, to such an extent as to be incapable of appreciating the nature and quality of the act or that the act was wrong.

A person labouring under specific delusions but in other respects sane shall not be acquitted on the ground of insanity, unless the delusions caused him to believe in the existence of some state of things which if it existed would justify or excuse his act: Provided that insanity before or after the time when he committed the act, and insane delusions though only partial may be evidence that the offender was at the time when he committed the act in such a condition of mind as to entitle him to be acquitted on the ground of insanity.

Every one committing an offence shall be presumed to be sane until the contrary is proved.

 

Canadian Criminal Code, 1892

11. No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility, or disease of the mind, to such an extend as to render him incapable of appreciating the nature and quality of the act or omission, and of knowing that such act or omission was wrong.
2. A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity, under the provisions hereinafter contained, unless the delusions caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act or omission.
3. Every one shall be presumed to be sane at the time of doing or omitting to do any act until the contrary is proved.

 

Canadian Criminal Code (current)

Defence of mental disorder
16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

* * *

LRCC § 3(6)

* * *

MPC § 4.01

* * *

StGB § 20

 

 

      b. Defence (vs. Element of Liability vs. Symptom vs. Offense)

 

Regina v. Saxell
[1980] 33 O.R. (2d) 78; [1980] 59 C.C.C. (2d) 176

The judgment of the Court was delivered by
1     WEATHERSTON J.A.:— At trial of the appellant on a charge of having in his possession a weapon, to wit: a knife, for a purpose dangerous to the public peace, the Crown adduced evidence of his insanity, and after a trial over a lengthy period of time, Provincial Judge K. A. Langdon found that the appellant was insane at the time of the alleged offence, and declared that he was acquitted on account of insanity….       

In the present case the prosecution advanced evidence of the appellant's insanity. Mr. Ruby argued that in the circumstances of this case that procedure resulted in cruel and unusual punishment in that the appellant was denied his right to accept the risk of a short prison sentence, but instead was made liable to a term of indefinite detention. [D]etention of the accused is not punishment at all, but is for the protection of the public and the treatment of the accused.

It is true that the defence usually raises a plea of insanity only in the most serious cases, but even though the defence is not raised and the prosecution does not tender evidence, there may be sufficient evidence before the Court that the trial Judge is required to instruct the jury on that issue. That was the case in Cooper v. The Queen (1980), 51 C.C.C. (2d) 129, 110 D.L.R. (3d) 46, [1980] 1 S.C.R. 1149 (S.C.C.).

The prosecution in this case relied on R. v. Simpson (1977), 35 C.C.C. (2d) 337, 77 D.L.R. (3d) 507, 16 O.R. (2d) 129 (Ont. C.A.). That case has been misunderstood if it is thought to be authority for the proposition that the prosecution may adduce evidence of the insanity of the accused in any case. Martin J.A. makes it perfectly clear that such evidence may be adduced only with the leave of the presiding Judge, who might first see fit to hold a voir dire. The overriding consideration is that the interest of justice demands that the accused should not be convicted of the offence charged. There must be convincing evidence that the accused has committed the act alleged. Manifestly, it would be wrong if evidence of insanity were to influence the jury's decision on that issue, either by affecting his credibility in case he testified, or by leading to the conclusion that the accused was the sort of person likely to have committed the act.

The evidence of insanity at the time of commission of the act must be sufficiently substantial, and create such a grave question whether the accused had the capacity to commit the offence, that the interests of justice require it to be adduced.

Although not expressly so stated in the reasons for judgment in R. v. Simpson, supra, I consider that in exercising his discretion whether to permit the Crown to adduce evidence of the insanity of the accused, the Judge ought to have regard to the nature and seriousness of the offence alleged to have been committed and the extent to which the accused may be a danger to the public.

If the trial Judge exercises his discretion on the basis of these considerations, then the public interest outweighs any right the accused may have not to raise the defence of insanity.

 

R. v. Swain
Supreme Court of Canada
[1991] 63 C.C.C.(3d) 481; [1991] 1 S.C.R. 933

LAMER C.J.C.:—This case raises a number of issues regarding the operation of the insanity defence and the manner in which insanity acquittees are dealt with under our criminal law. This court has been asked to consider whether the provisions of the Criminal Code, R.S.C. 1970, c. C-34, which set out the legislative scheme relating to insanity acquittees are within Parliament's criminal law power and whether these provisions are inconsistent with the Canadian Charter of Rights and Freedoms. This court has also been asked to consider whether the common law rule which allows the Crown, in certain circumstances, to raise evidence of insanity over and above an accused's wishes is inconsistent with the Charter…

Analysis

Given that there are two separate constitutional challenges to s. 542(2), I will deal with constitutional Qq. 1, 4 and 5 following my analysis of Qq. 2 and 3.

1. Does it violate the Charter for the Crown to raise evidence of insanity over and above the wishes of the accused?

The appellant argues that the common law rule for permitting the Crown to adduce evidence of insanity over and above the accused's wishes, which was enunciated by the Ontario Court of Appeal in R. v. Simpson, supra, and R. v. Saxell, supra, violates s. 7 of the Charter. The interveners, the Canadian Disability Rights Council et al. (hereinafter "C.D.R.C."), support the appellant in challenging the constitutionality of the common law rule under s. 15 of the Charter.

It should be noted that this court has indicated, in R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd. (1986), 33 D.L.R. (4th) 174 at p. 191, [1986] 2 S.C.R. 573, 38 C.C.L.T. 184, that in cases where the Charter is generally applicable to the litigation in question (within the meaning of s. 32), the Charter applies to common law rules as well as to statutes and regulations…

Therefore, if a common law rule is inconsistent with the provisions of the Constitution, it is, to the extent of the inconsistency, of no force or effect (s. 52(1)). Having said that, I will begin by considering the appellant's argument under s. 7.

Section 7

For ease of reference, I have reproduced the text of s. 7 below:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In order to invoke the protection of s. 7, an individual must establish an actual or potential deprivation of life, liberty or security of the person. Once a life, liberty, or security of the person interest is established, the question becomes whether the deprivation of liberty or security of the person is or is not in accordance with the principles of fundamental justice.

In my view, the liberty interest of Mr. Swain is readily apparent in the case at bar. The common law rule allows the Crown, in certain circumstances, to raise evidence of the accused's insanity over and above the wishes of the accused. If the Crown is successful in establishing that the accused is insane, within the meaning of s. 16 of the Code, the accused will be subject to the legislative scheme, contained in ss. 542 to 547 of the Code, which provides for warrants of the Lieutenant-Governor of the province. This means that the accused will be detained in strict custody until the pleasure of the Lieutenant-Governor of the province is known. Depending on the order of the Lieutenant-Governor, the accused may continue to be detained indefinitely, subject to periodic reviews (where a board of review has been appointed). The details of the L.G.W. system will be discussed in greater length below. I have given this brief overview simply to illustrate that when the Crown raises the issue of insanity, the liberty of the accused is clearly imperilled. That being so, it is necessary to address the issue of whether the deprivation of liberty is in accordance with the principles of fundamental justice.

In Reference re s. 94(2) of Motor Vehicle Act (1985), 23 C.C.C. (3d) 289 at pp. 302 and 310, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486, it was stated:

…the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system.…

Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.

It is therefore necessary to consider whether it is inconsistent with the basic tenets of our legal system for the Crown to be able to adduce evidence of insanity over and above the wishes of the accused.

The appellant argues that it is a principle of fundamental justice that an accused person be able to participate in a meaningful way in his or her defence and to make fundamental decisions about the conduct of his or her defence—such as waiving the defence of insanity. (I pause here to note that I will use the term "defence" in the broad sense of "any answer which defeats a criminal charge"; see my reasons for judgment in R. v. Chaulk (1990), 62 C.C.C. (3d) 193, [1991] 2 W.W.R. 385, 119 N.R. 161.) It is argued that the functioning of the adversarial system is premised on the autonomy of an accused to make fundamental decisions about his or her defence which require certain consequences and risks to be weighed. The appellant's argument is reflected in the words of Stewart J. in Faretta v. California, 422 U.S. 806 at p. 834 (1975) (Calif. C.A.):

The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defence ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law".

This court has, on numerous occasions, acknowledged that the basic principles underlying our legal system are built on respect for the autonomy and intrinsic value of all individuals. In Reference re s. 94(2) of Motor Vehicle Act, supra, at p. 302, I referred to the principles of fundamental justice as

. . . essential elements of a system for the administration of justice which is founded upon a belief in "the dignity and worth of the human person" (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III), and on "the rule of law" (preamble to the Canadian Charter of Rights and freedoms).
Similarly, in R. v. Morgentaler (1988), 37 C.C.C. (3d) 449 at p. 554, 44 D.L.R. (4th) 385, [1988] 1 S.C.R. 30, Wilson J. stated:

In my opinion, the respect for individual decision-making in matters of fundamental personal importance reflected in the American jurisprudence also informs the Canadian Charter. Indeed, as the Chief Justice pointed out in R. v. Big M Drug Mart Ltd., beliefs about human worth and dignity "are the sine qua non of the political tradition underlying the Charter".

This court has also recognized the constructs of the adversarial system as a fundamental part of our legal system. In Borowski v. Canada (Attorney-General) (1989), 47 C.C.C. (3d) 1 at p. 13, 57 D.L.R. (4th) 231, [1989] 1 S.C.R. 342, Sopinka J., in analyzing the doctrine of mootness, stated:

The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in the adversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. …

Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice must also require that an accused person have the right to control his or her own defence. The appellant has properly pointed out that an accused will not be in the position of choosing whether to raise the defence of insanity at his or her trial unless he or she is fit to stand trial. If at any time before verdict there is a question as to the accused's ability to conduct his or her defence, the trial judge may direct that the issue of fitness to stand trial be tried before matters proceed further: see Criminal Code, s. 543, now s. 615. Thus, an accused who has not been found unfit to stand trial must be considered capable of conducting his or her own defence.

An accused person has control over the decision of whether to have counsel, whether to testify on his or her own behalf, and what witnesses to call. This is a reflection of our society's traditional respect for individual autonomy within an adversarial system. In R. v. Chaulk, supra, I indicated that the insanity defence is best characterized as an exemption to criminal liability which is based on an incapacity for criminal intent. In my view, the decision whether or not to raise this exemption as a means of negating criminal culpability is part and parcel of the conduct of an accused's over-all defence.

The question remains, does the ability of the Crown to raise evidence of insanity over and above the accused's wishes interfere with the accused's control over the conduct of his or her defence?

The mere fact that the Crown is able to raise a defence which the accused does not wish to raise, and thereby to trigger a special verdict which the accused does not wish to trigger, means that the accused has lost a degree of control over the conduct of his or her defence. In my view, this in itself is sufficient to answer the question posed above. However, the appellant has argued that an accused's control over his or her defence is threatened in a more immediate sense when the Crown is able to independently raise the issue of insanity. The appellant contends that the Crown's ability to raise insanity permits the prosecution to place an accused in a position where inconsistent defences must be advanced, discredits and undermines the accused's credibility so that other defences are prejudiced, and has a tendency to leave the jury with the impression that the accused is, because of mental illness, the "type of person" who would have committed the offence.

It is not difficult to see that the Crown's ability to raise independently the issue of insanity could very well interfere with other defences being advanced by the accused. For example, an accused who wishes to defend on the basis of alibi could very well be thwarted in this approach by the Crown's raising the inconsistent defence of insanity. It is also apparent that the Crown's ability to raise insanity could undermine an accused's credibility with the jury and could give rise to the inference that the accused is someone who would likely commit a crime. The mentally ill have historically been the subjects of abuse, neglect and discrimination in our society. The stigma of mental illness can be very damaging. The intervener, C.D.R.C., describes the historical treatment of the mentally ill as follows:

For centuries, persons with a mental disability have been systematically isolated, segregated from the mainstream of society, devalued, ridiculed and excluded participation in ordinary social and political processes.

The above description is, in my view, unfortunately accurate and appears to stem from an irrational fear of the mentally ill in our society. While I have a very high regard for the intelligence and good faith of Canadian juries, it is none the less apparent that an accused's credibility could be irreversibly damaged by the Crown's raising evidence of insanity.

The Crown has argued that the right of an accused to control the conduct of his or her defence is adequately safeguarded by the exercise of judicial discretion which was contemplated in both Simpson and Saxell, supra. In Saxell, the Ontario Court of Appeal held that the Crown may adduce evidence of insanity only with leave of the trial judge, who may first require that a voir dire be held. The court indicated that the exercise of discretion should be based on the following factors, at pp. 188-9:

The overriding consideration is that the interest of justice demands that the accused should not be convicted of the offence charged. There must be convincing evidence that the accused has committed the act alleged. Manifestly, it would be wrong if evidence of insanity were to influence the jury's decision on that issue, either by affecting his credibility in case he testified, or by leading to the conclusion that the accused was the sort of person likely to have committed the act.

The evidence of insanity at the time of commission of the act must be sufficiently substantial, and create such a grave question whether the accused had the capacity to commit the offence, that the interests of justice require it to be adduced.

Although not expressly so stated in the reasons for judgment in R. v. Simpson, supra, I consider that in exercising his discretion whether to permit the Crown to adduce evidence of the insanity of the accused, the Judge ought to have regard to the nature and seriousness of the offence alleged to have been committed and the extent to which the accused may be a danger to the public.

I agree that it would be "manifestly" wrong if evidence of insanity were to influence the jury's decision on the issue of whether the accused committed the alleged act, but, with respect, I fail to see how the discretion of the trial judge to refuse to allow the Crown to raise insanity unless there is "convincing evidence" that the accused committed the alleged act will prevent this from happening. In my opinion, while the Ontario Court of Appeal has recognized the prejudicial effect of allowing the Crown to raise evidence of insanity, it has not formulated a mechanism which adequately safeguards the right of the accused to control his or her defence.

In my view, the ability of the Crown to raise evidence of insanity over and above the accused's wishes, under the existing common law rule, does interfere with the accused's control over the conduct of his or her defence. However, this is not to say that if an accused chooses to raise evidence which tends to put his or her mental capacity for criminal intent into question but falls short of raising the defence of insanity (within s. 16), the Crown will be unable to raise its own evidence of insanity. In circumstances where the accused's own evidence tends to put his or her mental capacity for criminal intent into question, the Crown will be entitled to put forward its own evidence of insanity and the trial judge will be entitled to charge the jury on s. 16. Whether the accused's evidence does, in fact, put mental capacity for criminal intent in issue will be a matter for the trial judge to determine in the particular circumstances of each case. The Crown's ability to raise evidence of insanity in these circumstances is necessary because, otherwise, the jury could well be left with an incomplete picture of the accused's mental capacity. If an accused were able to raise some evidence of mental incapacity (short of an insanity defence) and, at the same time, able to preclude the Crown from raising any evidence of insanity that it may have in its possession, the possibility would arise that the accused could be acquitted by a jury which was deprived of the "full story" surrounding the accused's mental incapacity. Such a result is clearly undesirable. Furthermore, the Crown's ability to raise evidence of insanity only after an accused has put his or her mental capacity for criminal intent in issue does not raise the problem, discussed above, of the Crown's being able to place an accused in a position where inconsistent defences must be advanced.

Thus, although it is a principle of fundamental justice that an accused has the right to control his or her own defence, this is not an "absolute" right. If an accused chooses to conduct his or her defence in such a way that that accused's mental capacity for criminal intent is somehow put into question, then the Crown will be entitled to "complete the picture" by raising its own evidence of insanity and the trial judge will be entitled to charge the jury on s. 16.

The common law rule which was enunciated in R. v. Simpson, supra, and R. v. Saxell, supra, does not limit the Crown to raising insanity only in circumstances where an accused's own defence puts his or her mental capacity for criminal intent into issue. Thus, the existing common law rule which allows the Crown to raise evidence of insanity over and above the wishes of the accused does violate a principle of fundamental justice.

The Crown has indicated, however, that the Crown's ability to raise independently evidence of insanity conforms with a second principle of fundamental justice; namely, that a person who was insane at the time of the offence (and was therefore incapable of having criminal intent) ought not to be convicted under the criminal law. In other words, it is argued that the Crown must have the ability to raise evidence of insanity when the accused chooses not to do so, because it would violate the principles of fundamental justice for the accused to be convicted of a criminal offence when there is a real question about the accused's criminal culpability (and, therefore, about the accused's guilt).

I agree that it is a principle of fundamental justice that the criminal justice system not convict a person who was insane at the time of the offence. To the extent that it is a principle protected by the Charter, it is one of the individual rights included in s. 7. However, this principle of fundamental justice is not triggered by the accused's claim to his s. 7 rights under the Charter in this case. Here, the accused has proved that his liberty was denied in a manner which does not accord with the principle of fundamental justice that an accused must have control over the conduct of his or her defence. In my view, this concludes the matter. As I indicated in R. v. Askov (1990), 59 C.C.C. (3d) 449 at pp. 454-5, 74 D.L.R. (4th) 355, [1990] 2 S.C.R. 1199, with respect to s. 11(b), the legal rights set out in ss. 7 to 14 of the Charter were enacted for the benefit of individuals. In this case, the accused chose not to invoke the principle of fundamental justice that the criminal justice system not convict a person who was insane at the time of the offence. Therefore, in this case, this principle cannot be a part of the s. 7 analysis.

It is not appropriate for the state to thwart the exercise of the accused's right by attempting to bring societal interests into the principles of fundamental justice and to thereby limit an accused's s. 7 rights. Societal interests are to be dealt with under s. 1 of the Charter, where the Crown has the burden of proving that the impugned law is demonstrably justified in a free and democratic society. In other words, it is my view that any balancing of societal interests against the individual right guaranteed by s. 7 should take place within the confines of s. 1 of the Charter. Accordingly, while I agree that it is a basic tenet of our legal system that a person who was insane at the time of the offence ought not to be convicted, I prefer to deal with this concern, in this case, under s. 1 of the Charter.

Thus, it is my view that the common law rule which allows the Crown to raise evidence of insanity over and above the accused's wishes is a denial of liberty which is not in accordance with the principles of fundamental justice. Accordingly, the common law rule limits an accused's rights under s. 7 of the Charter.

Given that I have found a limitation of an accused's rights under s. 7, it will be unnecessary to consider whether the common law rule which allows the Crown to raise evidence of insanity over and above the accused's wishes also restricts the rights enunciated in ss. 9 and 15 of the Charter, unless the limitation on s. 7 can be upheld under s. 1. It is my view that s. 9 has no application to this issue and I note that the parties directed no argument to this section despite its inclusion in the constitutional question.

Before turning to s. 1, however, I wish to point out that because this appeal involves a Charter challenge to a common law, judge-made rule, the Charter analysis involves somewhat different considerations than would apply to a challenge to a legislative provision. For example, having found that the existing common law rule limits an accused's rights under s. 7 of the Charter, it may not be strictly necessary to go on to consider the application of s. 1. Having come to the conclusion that the common law rule enunciated by the Ontario Court of Appeal limits an accused's right to liberty in a manner which does not accord with the principles of fundamental justice, it could, in my view, be appropriate to consider at this stage whether an alternative common law rule could be fashioned which would not be contrary to the principles of fundamental justice.

If a new common law rule could be enunciated which would not interfere with an accused person's right to have control over the conduct of his or her defence, I can see no conceptual problem with the court's simply enunciating such a rule to take the place of the old rule, without considering whether the old rule could none the less be upheld under s. 1 of the Charter. Given that the common law rule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken. Of course, if it were not possible to reformulate the common law rule so as to avoid an infringement of a constitutionally protected right or freedom, it would be necessary for the court to consider whether the common law rule could be upheld as a reasonable limit under s. 1 of the Charter. As was noted at the outset of this analysis, this court has stated that a limit "prescribed by law" within the meaning of s. 1 may arise from the application of a common law rule as well as from a statute or regulation. Thus, I do not wish to be taken as having held that s. 1 can never have application when a common law rule is challenged under the Charter.

In a sense, this stage of the analysis is similar to that which would arise if the challenge to the common law rule had not been brought under the Charter. Had the parties chosen to approach this issue from the standpoint that the common law rule was simply contrary to basic principles of criminal law, the court would have been in the position of considering whether the rule could be reformulated so as to remove any inconsistency with basic criminal law principles (principles of fundamental justice), while still obtaining the original objectives. In other words, it is not strictly necessary to invoke s. 52(1) of the Constitution Act, 1982, in order to challenge a common law, judge-made rule on the basis of the rights and values guaranteed by the Charter—if a common law rule can be reformulated so as to attain its objectives while removing any inconsistency with basic principles, a judge is entitled to undertake such a reformulation and is not obliged to seek jurisdiction for this action under s. 52(1).

However, this appeal does involve a s. 52(1) challenge to the existing common law rule and, in my view, there are good reasons to go on to consider the application of s. 1 in this case, within the guidelines enunciated in R. v. Oakes (1986), 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200, [1986] 1 S.C.R. 103. The Oakes test provides a familiar structure through which the objectives of the common law rule can be kept in focus and alternative means of attaining these objectives can be considered. Furthermore, the constitutional questions were stated with s. 1 in mind. While this is not, in and of itself, determinative, the court has had the benefit of considered argument under s. 1 both from the immediate parties and from a number of interveners. In my view, it would be both appropriate and helpful for the court to take advantage of these submissions in considering the objective of the existing rule and in considering whether an alternative common law rule could be fashioned which would be less intrusive to the conduct of an accused's defence. Finally, earlier in these reasons I stated that any consideration of societal interests in not convicting a person who was insane at the time of the offence ought to be left to the s. 1 analysis and ought not to be brought into the s. 7 analysis of the principles of fundamental justice. Having said this, I feel compelled to address these interests under s. 1 of the Charter.

For the reasons given above, I will now consider whether the existing common law rule can be upheld as a reasonable limit under s. 1 of the Charter.

Section 1

….
(i) Objective

Given that this appeal involves a common law, judge-made rule, the task of the court under this part of the Oakes test is not to construe the objective of Parliament or of a legislature, but rather to construe the over-all objective of the common law rule which has been enunciated by the courts.

In my view, the objective of the common law rule which allows the Crown, in some cases, to raise evidence of insanity over and above the accused's wishes is twofold. One of the objectives was identified by Martin J.A. in Simpson, supra, at p. 362:

"to avoid the conviction of an accused who may not be responsible on account of insanity, but who refuses to adduce cogent evidence that he was insane."

The common law rule is aimed not only at avoiding the unfair treatment of the accused but also at maintaining the integrity of the criminal justice system itself. The accused is not the only person who has an interest in the outcome of the trial; society itself has an interest in ensuring that the system does not incorrectly label insane people as criminals.

The second objective was aptly characterized by the appellant as the protection of the public from presently dangerous persons requiring hospitalization. This objective arises from the fact that the Crown's option to simply discontinue the prosecution of an accused, whom it suspects was insane at the time of the offence, does not address the concern that such a person may well be presently dangerous and may therefore bring him or herself into contact with the criminal justice system once again.

In my view, the dual objectives outlined above relate to pressing and substantial concerns in our society and are of sufficient importance to warrant overriding a constitutionally protected right or freedom. Accordingly, I turn now to consider whether the common law rule passes the proportionality test set out in Oakes.

(ii) Proportionality test

1. Rational connection
The question to be addressed at this stage of the Oakes analysis is whether there is a rational connection between the objectives, which were identified above under the first branch of the test, and the means which have been chosen to attain these objectives—namely, the common law rule allowing the Crown to raise independently evidence of insanity in certain circumstances.

Allowing the Crown to raise evidence of insanity in cases where the accused has chosen not to do so is one way of avoiding the conviction of individuals who were insane at the time the offence was committed, but who do not wish to raise the issue of insanity. While this method of achieving the first objective may raise certain problems and may not be the preferred method of achieving the objective, it is none the less a logical means of achieving the desired objective.

Similarly, allowing the Crown to raise insanity in cases where the accused has chosen not to do so is one way of protecting the public from people who may be presently dangerous. If the Crown is able to prove insanity, the accused will be subject to detainment and review under the L.G.W. system. While this method may again raise certain problems, it is none the less a logical means of achieving the second objective.

Thus, in my view, there is a rational connection between the objectives and the means chosen to attain the objectives, and the common law rule therefore passes the first part of the proportionality test in Oakes.

2. As little as possible
The question under this part of the proportionality test is whether the impugned law (in this case, the common law rule and criteria enunciated by the Ontario Court of Appeal) violates Charter rights as little as possible in order to achieve the “pressing and substantial" objective. In other words while the means chosen may be rationally connected to the objective, they may, at the same time, be unnecessarily intrusive on constitutional rights in light of alternative means. This court has stated on a number of occasions that the absolutely least intrusive means need not be chosen in order for a law to pass the "as little as possible" test: … . However, as I have indicated above, it is my view that the Oakes analysis requires somewhat different considerations when, as here, a judge-made rule is being challenged under the Charter.

In cases where legislative provisions have been challenged under s. 52(1) of the Constitution Act, 1982, this court has been cognizant of the fact that such provisions are enacted by an elected body which must respond to the competing interests of different groups in society and which must always consider the polycentric aspects of any given course of action. For this reason, this court has indicated that Parliament need not always choose the absolutely least intrusive means to attain its objectives, but must come within a range of means which impair Charter rights as little as is reasonably possible. However, as was indicated above, in cases where a common law, judge-made rule is challenged under the Charter, there is no room for judicial deference.

In my view, the existing common law rule which allows the Crown, in certain circumstances, to raise evidence of insanity over and above the accused's wishes and which thereby interferes with the principle of fundamental justice that an accused must have control over the conduct of his or her defence, must be subjected to a rigorous examination under s. 1. In other words, the least intrusive common law rule which will attain the objectives without disproportionately affecting rights must be adopted by the court.

As stated above, I agree that it is a basic tenet of our legal system that the criminal law ought not to convict a person who was insane at the time of the offence. However, I do not agree that this principle and the corresponding objective require that the Crown have the ability to raise evidence of insanity over and above the accused's wishes and thereby to interfere with the conduct of his or her defence. If the Crown is of the view that the accused was insane at the time of the offence, it need not prosecute the accused. The Crown can always exercise the option of dropping the charge or of entering a stay of proceedings. Such action on the part of the Crown would be consistent both with the accused's right to control his or her own defence and with the principle that a person who was insane at the time of the offence ought not to be convicted under the criminal law.

However, the second pressing and substantial objective of protecting the public from a person who may well be presently dangerous would not be met by the Crown's dropping charges. Thus, while a rule requiring the Crown to drop charges or enter a stay of proceedings in cases where the Crown is of the view that the accused was insane at the time of the offence would be less intrusive than the existing common law rule, such an alternative rule would fall short of attaining the dual objectives identified above. Both objectives could be met, in some cases, via civil commitment procedures. The provincial mental health Acts do provide an alternative course of action to the Crown when the Crown is in possession of evidence which suggests that the accused may well be dangerously mentally ill but does not wish to pursue the conviction of the accused because he or she may well have been insane at the time of the offence. Moreover, as the appellant has argued,

The provisions of the various provincial Mental Health Acts provide a plethora of substantive and procedural protection for mentally ill persons that are lacking under the indefinite detention regime of the Criminal Code which allows the Crown to achieve indeterminate confinement without proof beyond a reasonable doubt. (Emphasis in original.)

I do not wish to be taken, however, as having ruled on the constitutionality of the various provincial mental health Acts. I simply wish to make the point that these provincial statutes generally provide more procedural protection than does the system of Lieutenant-Governor warrants and, in that sense, they provide an alternative to the Crown when it believes that an accused was insane at the time of the offence and may be presently insane and dangerous. Whether any particular provincial statute dealing with civil commitment is consistent with the provisions of the Charter will have to be decided when the facts of the case raise the issue and the matter is fully argued before the court. In any event, I have raised the possibility of the Crown having recourse to the provincial civil commitment procedures merely to point out that, no matter what the state of the common law rule, the Crown need never be in the position of having to choose between prosecuting an accused who it believes was insane at the time of the offence, and allowing someone it believes to be presently dangerous and insane to remain at large.

I do not wish to suggest, however, that it would be appropriate to fashion a new common law rule requiring the Crown to commence civil commitment proceedings whenever it believes that an accused may well have been insane at the time of the offence and is presently dangerously insane. In my view, it would be unacceptable for this court to fashion a common law rule which makes the outcome of a criminal matter dependent upon the existence and validity of legislation presumably falling within a provincial head of power.

In light of the above reasoning, it is necessary to consider whether a new common law rule can be fashioned which does not limit constitutionally protected rights and freedoms; in my view it is possible to do so.

The dual objectives discussed above could be met without unnecessarily limiting Charter rights if the existing common law rule were replaced with a rule which would allow the Crown to raise independently the issue of insanity only after the trier of fact had concluded that the accused was otherwise guilty of the offence charged. Under this scheme, the issue of insanity would be tried after a verdict of guilty had been reached, but prior to a conviction being entered. If the trier of fact then subsequently found that the accused was insane at the time of the offence, the verdict of not guilty by reason of insanity would be entered. Conversely, if the trier of fact found that the accused was not insane, within the meaning of s. 16, at the time of the offence a conviction would then be entered.

Such a rule would safeguard an accused's right to control his or her defence and would achieve both the objective of avoiding the conviction of a person who was insane at the time of the offence and the objective of protecting the public from a person who may be presently dangerous. Of course, an accused would also be entitled, under this scheme, to raise his s. 7 right not to be found guilty if he was insane at the time of the offence. An accused would, if he chooses not to do so earlier, raise the issue of insanity after the trier of fact has concluded that he or she was guilty of the offence charged, but before a verdict of guilty was entered. This is consistent with the accused's right, under our criminal justice system, to force the Crown to discharge its full burden of proof on the elements of actus reus and mens rea before raising other matters. However, this does not mean that the accused can raise insanity only after both actus reus and mens rea have been proven. While the Crown would be limited to raising evidence of insanity only after the trier of fact was satisfied that the full burden of proof on actus reus and mens rea had been discharged or after the accused's own defence has somehow put his or her mental capacity for criminal intent in issue, the accused would have the option of raising evidence of insanity at any time during the trial. As I have indicated in R. v. Chaulk, supra, evidence of mental impairment will, in certain cases, tend to negate the element of mens rea. As I have stated earlier, and I think it useful to reiterate here, if during the course of the trial an accused raises evidence of mental impairment which (in the view of the trial judge) tends to put his or her mental capacity in issue, the Crown will be entitled to lead evidence of insanity and the trial judge will be entitled to charge the jury on the insanity defence within the meaning of s. 16. However, if such evidence of mental impairment is, in the view of the trier of fact, insufficient to meet the requirements of s. 16, the accused is still entitled to have such evidence considered with respect to the essential element of mens rea. This accords with the current practice wherein an accused has been able to deny the element of planning and deliberation or the specific intent required for murder despite the fact that s. 16 has not been satisfied. This new common law rule would give an accused the option of waiting until the Crown has discharged its full burden of proof to raise the issue of insanity, without removing the existing right of an accused to raise evidence of his or her mental condition during the course of the trial.

In my view, the new common law rule achieves the dual objectives enunciated above without limiting an accused's rights under s. 7 of the Charter. Under the new common law rule, there will only be two instances in which the Crown will be entitled to lead evidence of insanity. First, the Crown may raise evidence of insanity after the trier of fact has concluded that the accused is otherwise guilty of the offence charged. In these circumstances the Crown's ability to raise evidence of insanity cannot interfere with the conduct of the accused's defence because the Crown's ability to do so will not be triggered until after the accused has concluded his or her defence. Secondly, the Crown may raise evidence of insanity if the accused's own defence has (in the view of the trial judge) put the accused's capacity for criminal intent in issue. In these circumstances the Crown's ability to raise evidence of insanity is not inconsistent with the accused's right to control the conduct of his or her defence because the very issue has been raised by the accused's conduct of his or her defence. Furthermore, as was stated above, the Crown's ability to raise evidence of insanity only after an accused has put his or her mental capacity for criminal intent in issue does not raise the problem of the Crown's being able to place an accused in a position where inconsistent defences must be advanced.

In light of the reasons given above, it can be seen that it is indeed possible to fashion a new common law rule which does not limit s. 7 of the Charter. Surely if it is possible to fashion a common law rule which attains the original objectives but does not limit s. 7, it follows that the existing rule cannot be said to infringe rights "as little as possible". Thus, it is clear to me that the existing common law rule enunciated in R. v. Simpson, supra, and R. v. Saxell, supra, which allows the Crown to raise independently evidence of insanity, does not limit an accused's s. 7 rights as little as possible. It is therefore unnecessary to consider the third part of the proportionality test in Oakes. The existing common law rule does not meet the proportionality test enunciated in Oakes and cannot be upheld as a reasonable limit which is demonstrably justified in a free and democratic society.

Given the findings reached above, it is my view that the common law rule enunciated in Simpson, supra, and Saxell, supra, is inconsistent with the provisions of the Constitution and, pursuant to s. 52(1), is of no force or effect. …

L’HEUREUX-DUBÉ J. (dissenting):— I have had the benefit of the reasons of the Chief Justice and of Madam Justice Wilson but, with respect, cannot agree with them nor with the conclusion they reach. At issue in this case is the constitutionality of the legislative scheme which provides for the detention of insane acquittees (ss. 542-547 of the Criminal Code, R.S.C. 1970, c. C-34, as am.), as well as the common law rule which allows the Crown to raise evidence of insanity independently.

It is my view that the common law rule allowing the Crown to raise evidence of insanity independently is a principle of fundamental justice consonant with, and indeed, reflective of the values substantively embodied in s. 7 "principles of fundamental justice". Further, I agree with the majority of the Ontario Court of Appeal that s. 542(2) of the Criminal Code, viewed within its legislative and operative context, is also fully consistent with Canadian Charter of Rights and Freedoms guarantees. I am, however, in agreement with both of my colleagues' conclusion that s. 542(2) of the Criminal Code is intra vires the Parliament of Canada.…

Analysis

The common law rule

Pivotal to the determination of the validity of the common law rule which allows the Crown to raise evidence of insanity independently, is a full discussion of what the rule is intended to achieve and the internal limits which govern its operation. The common law rule was crafted with precision: it does not operate willy-nilly in allowing the Crown to raise such evidence but, rather, operates within strict parameters. It is both informed and, conversely, limited by two principles of fundamental justice.

The two distinct principles of fundamental justice that my colleagues identify, i.e., that of an accused's right to fully control his or her defence and the fundamental rule that insane persons not responsible for their conduct should not be convicted for otherwise criminal behaviour, find appropriate expression in the balance achieved through the proper application of the common law rule. There can be no doubt that the two principles identified above are properly labelled, in the language of s. 7, "fundamental". This court has, on numerous occasions, addressed the fundamental nature of these principles.

In Reference re s. 94(2) of Motor Vehicle Act (1985), 23 C.C.C. (3d) 289, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486, Lamer J. (as he then was), discussed the principle that criminal law should not punish the innocent in these terms, at p. 293:

"A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice." …

Neither can there be any doubt as to the "fundamental" nature of the principle that an accused has the right to control and make meaningful decisions about the manner in which he or she defends. As my colleague the Chief Justice notes, it is founded on respect for the autonomy of the individual as well as on the adversarial nature of our criminal justice system. The common law rule at issue here does not, in my view, violate either of these fundamental principles.

Regardless of how one chooses to label or characterize the principle that an individual should not be convicted absent fault, i.e., as one adhering to the accused or as a purely societal interest, I am not convinced that it is properly dealt with under s. 1. Since, in my view, the common law rule reflects an appropriate balance between the two principles identified above, I will necessarily address the concerns raised by them within s. 7.

In my respectful opinion, a narrow approach is not warranted and should be avoided in a discussion of the principles of fundamental justice; these principles and their alleged violations should be viewed within the broader context of the legal system within which these principles have been found to repose. I find it difficult to engage in the sifting process advocated by my colleagues. The principles of fundamental justice do not spring up independently of one another but evolve gradually in what can be seen to be a mutually nourishing process. Our legal system is not a system of rules and principles operating singly, each within its own limited sphere. Any analysis requiring an examination of these principles, be it mandated constitutionally or otherwise, must respect this integrity. In this regard, I adopt the words of La Forest J. (dissenting on other grounds), in R. v. Corbett (1988), 41 C.C.C. (3d) 385 at p. 439, [1988] 1 S.C.R. 670, 64 C.R. (3d) 1, that "the principles of fundamental justice operate to protect the integrity of the system itself…". I thus respectfully disagree with the Chief Justice's approach (at p. 29) [ante, p. 509], that:

…the accused chose not to invoke the principle of fundamental justice that the criminal justice system not convict a person who was insane at the time of the offence. Therefore, in this case, this principle cannot be a part of the s. 7 analysis.

The common law rule in issue here has evolved in precisely the fashion alluded to above. The fundamental principles of justice that my colleagues prefer to separate from its mix, combine to fashion a larger principle, one informed in appropriate measure by concerns underlying the principles that nourish it. When viewed within the broad context in which it operates, the common law rule, and its application in any given case, is, in my view, consonant with the principles of fundamental justice.

The ability of the Crown to raise evidence of insanity independently appears to have been first challenged, at the appellate level, in R. v. Simpson (1977), 35 C.C.C. (2d) 337, 77 D.L.R. (3d) 507, 16 O.R. (2d) 129. The rule at issue here has its genesis in the reasons of Martin J.A., for a unanimous five-member panel of the Ontario Court of Appeal. Martin J.A. prefaced and based his articulation of the rule upon a careful analysis of the arguments for and against it. He noted the concerns of defence counsel that allowing the Crown to raise evidence of insanity would prejudice an accused, concerns that are discussed at length in my colleagues' reasons. Martin J.A. also noted the fundamental tenet of criminal law that those that ought not to be held responsible for their actions should not be convicted. However, as I have mentioned above, he also recognized at p. 359 that the criminal justice system can accommodate divergent interests and that "a balance must frequently be sought and maintained between them". Moreover, he doubted, as I do, that "drastic" prejudicial consequences would ensue upon allowing the Crown to raise evidence of insanity, and he held at p. 359 that “the prosecution, in appropriate circumstances, is entitled to lead evidence that the accused was insane at the time of the act” (emphasis added). Martin J.A. was also well aware in his framing of the rule, that while giving voice to the principle that the criminal justice system cannot convict without fault, the rule must also protect the interests of the accused and the adversarial nature of the system in general. He addressed these concerns at p. 361:

The adversary system, in general, has served us well and I, for one, would not like to contemplate the erosion of its essential features, but I am not persuaded that the inflexible application of a rule which debars the prosecution from adducing cogent evidence of insanity in its possession, where the accused refuses to adduce it, is an essential concomitant of that system.

On the other hand, the prosecution, clearly, ought not to be entitled to bolster a weak case that the accused committed the act by weak evidence that the accused was insane, where the admission of such evidence might deprive the accused of a fair trial on the issue whether he committed the act by leading the jury to conclude that he is the sort of person likely to have committed the act charged.

Martin J.A.'s articulation of the rule, at pp. 362-3, takes into account these seemingly divergent concerns and reflects the careful balance discussed at the outset:

[A trial judge's discretion] is broad enough to permit him to exclude evidence of insanity when tendered by the prosecution unless he is satisfied that the evidence of insanity proposed to be tendered is sufficiently substantial that the interest of justice requires that it be adduced. In no case would the interest of justice require the prosecution to adduce such evidence until evidence had been previously adduced which would warrant a jury being satisfied beyond a reasonable doubt that the accused committed the act charged with the requisite criminal intent, apart from a condition of insanity.

Where the prosecution seeks to adduce evidence that the accused was insane at the time of the act, the proper test, in my view, is not whether, if advanced by the accused, the evidence would be sufficient to require the defence of insanity to be submitted to the jury by the trial Judge, but whether it is sufficiently substantial and creates such a grave question whether the accused had the capacity to commit the offence that the interest of justice requires it to be adduced.…

In any case where the prosecution adduces evidence of insanity and the accused denies the commission of the act, it is incumbent upon the trial Judge to direct the jury that they are not to consider the evidence of insanity unless and until they are satisfied beyond a reasonable doubt that the accused committed the act charged with the requisite criminal intent. (Emphasis added.)

Notably, in a revisiting of the issue in R. v. Saxell (1980), 59 C.C.C. (2d) 176, 123 D.L.R. (3d) 369, 33 O.R. (2d) 78, the Ontario Court of Appeal further tightened the rule by requiring that the trial judge also direct his or her mind to "the nature and seriousness of the offence alleged to have been committed and the extent to which the accused may be a danger to the public" (per Weatherston J.A., for the majority, at p. 189).

Thus, it is plain that the Crown's ability to raise evidence of insanity over and above the wishes of the accused will occur only in circumstances where the guilt of the accused is in no serious doubt, the evidence of insanity is overwhelming, the offence is of a serious nature and the accused represents a continuing threat to society due to his or her present dangerousness. In no small way, then, does this rule avert to the right of an accused to control his or her defence as its potential application is strictly and severely limited. It is not lightly that a court will proceed to consider evidence of insanity raised at the behest of the Crown and it is always in its discretion to exclude such evidence if it feels that the resultant prejudice to the accused would be too great. While the original formulation of the rule occurred prior to the Charter, the balance achieved by the rule is harmonious with the dictates of the Charter and, surely, in light of the Charter, future courts will tread cautiously, endeavouring to apply the rule in the strict manner in which it was intended, and thus, apply it in a fashion consistent with the principles of fundamental justice.

This is certainly not the first time that this court has introduced a consideration of the trial judge's discretion into the balance, in its examination of a substantive Charter guarantee, and weighed this along with the relevant "competing interests". In R. v. Corbett, supra, the issue was whether s. 12 of the Canada Evidence Act, R.S.C. 1970, c. E-10, which allows cross-examination of an accused on his or her prior criminal record, was inconsistent with the guarantee in s. 11(d) of the Charter. In concluding that no inconsistency existed, Dickson C.J.C., for the majority on this point, held at p. 400:

The balance struck by the combination of the Canada Evidence Act, s. 12, and the requirement for a clear direction from the judge is admirably summed up in the following passage from the judgment of Martin J.A. in R. v. Davison, DeRosie and MacArthur, [citation omitted], at pp. 441-2:

"An accused who gives evidence has a dual character. As an accused he is protected by an underlying policy rule against the introduction of evidence by the prosecution tending to show that he is a person of bad character, subject, of course, to the recognized exceptions to that rule. As a witness, however, his credibility is subject to attack.…

In my view the policy rule which protects an accused against an attack upon his character lest it divert the jury from the issue which they are called upon to decide, namely, the guilt or innocence of the accused on the specific charge before the Court, is not wholly subordinated to the rule which permits an accused who elects to give evidence to be cross-examined on the issue of his credibility. In this area of the low, as in so many areas, a balance has been struck between competing interests, which endeavours so far as possible to recognize the purpose of both rules and does not give effect to one to the total exclusion of the other."

One can now add on the accused 's side of the balance the discretion in the trial judge to exclude evidence of prior convictions in those unusual circumstances where a mechanical application of s. 12 would undermine the right to a fair trial. (Emphasis added.)

Similar considerations were brought to bear in R. v. Beare (1988), 45 C.C.C. (3d) 57, 55 D.L.R. (4th) 481, [1988] 2 S.C.R. 387, wherein La Forest J., for the court, in his discussion of the relevance of the existence of discretion in the application of the statute, stated at p. 76 that, "[t]he existence of the discretion conferred by the statutory provisions does not, in my view, offend principles of fundamental justice".

Also pertinent to any conclusion as to the proper balance to be struck under s. 7 are considerations of the scope of the impugned rule or law. In R. v. Potvin (1989), 47 C.C.C. (3d) 289, [1989] 1 S.C.R. 525, 68 C.R. (3d) 193, Wilson J., for the majority, in considering whether s. 643 of the Criminal Code was inconsistent with s. 7 of the Charter in so far as it allowed the reading in of evidence given at the preliminary inquiry, found that the provision was consistent with the principles of fundamental justice as long as the accused had a full opportunity to cross-examine the witness when the previous testimony was given. She further noted at p. 302:

In any event, because s. 643(1) can only be invoked when its stringent prerequisites are met by the party seeking to introduce the previous testimony, it is not a provision that the Crown can use at will to its advantage or as a device to protect Crown witnesses who may not prove to be credible before the trier of fact.

The same can be said of the common law rule in issue here.

Some of the Chief Justice's concerns with the scope and operation of the rule can perhaps be traced to the fact that his reasons refer exclusively to the reasons of the Ontario Court of Appeal in Saxell, supra, wherein the court restated the rule originally formulated in Simpson, supra. To the extent that the court in Saxell, supra, was only restating the rule (with the added requirements discussed above), it was wrong in asserting that the prosecution need only show "convincing evidence" that the accused committed the act, notwithstanding evidence of insanity. The court in Simpson, supra, at p. 362, emphatically stated that the standard is higher and that the prosecution must adduce sufficient evidence “which would warrant a jury being satisfied beyond a reasonable doubt that the accused committed the act charged.” Any other reading of the rule does not do justice to the sensitive balance achieved by the Court of Appeal in Simpson, supra. As I have made clear previously, properly interpreted and applied, the rule reflects fundamental values inherent in our system of criminal justice and balances them in a way that passes constitutional muster. This conclusion is necessarily threatened by any attempt to detract from the weight accorded to the various interests in this balance. …

 

            c. Burden of Proof

R. v. Chaulk
Supreme Court of Canada
[1990] 62 C.C.C. (3d) 193; [1990] 3 S.C.R. 1303

The judgment of Dickson C.J. and Lamer C.J. and La Forest and Cory JJ. was delivered by
Lamer, C.J.:
This case involves a constitutional challenge, under s. 11(d)of the Canadian Charter of Rights and Freedoms, to the reverse onus clause contained in s. 16(4) of the insanity provisions contained in the Criminal Code, R.S.C. 1985, c. C-46 This court has also been asked to revisit its interpretation of the meaning of the word “wrong” found in s. 16(2). There are other issues specific to the appeal which are set out further on in these reasons.

Facts

On September 3, 1985, the appellants Chaulk and Morrissette entered a home in Winnipeg, plundered it for valuables and then stabbed and bludgeoned its sole occupant to death. A week later they turned themselves in, making full confessions.

After a transfer proceeding in the youth court (Chaulk and Morrissette were 15 and 16 years of age, respectively), the appellants were tried and convicted of first degree murder by a jury in the Manitoba Court of Queen’s Bench. The only defence raised was insanity within the meaning of s. 16 of the Code. Expert evidence was given at trial that the appellants suffered from a paranoid psychosis which made them believe that they had the power to rule the world and that the killing was a necessary means to that end. They knew the laws of Canada existed, but believed that they were above the ordinary law; they thought the law was irrelevant to them. They thought they had a right to kill the victim because he was “a loser”.

An appeal to the Manitoba Court of Appeal was unanimously dismissed on May 13, 1988 [summarized 4 W.C.B. (2d) 218].

Relevant statutory provisions

Criminal Code

16.(1) No person shall be convicted of an offence in respect of an act or omission on his part while that person was insane.
(2) For the purposes of this section, a person is insane when the person is in a state of natural imbecility or has disease of the mind to an extent that renders the person incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.
(3) A person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused that person to believe in the existence of a state of things that, if it existed, would have justified or excused the act or omission of that person.
(4)  Every one shall, until the contrary is proved, be presumed to be and to have been sane. …

Analysis

Is s. 16(4) of the Code inconsistent with s. 11(d) of the Charter?

Section 16(4) of the Code sets out a presumption of sanity. This presumption can be rebutted if “the contrary is proved”. In Smythe v. The King (1941), 74 C.C.C. 273, [1941] 1 D.L.R. 497, [1941] S.C.R. 17, this court held that when insanity is raised by the defence, the accused must prove that he or she was insane, at the time of the offence, on a balance of probabilities. In R. v. Simpson (1977), 35 C.C.C. (2d) 337, 77 D.L.R. (3d) 507, 16 O.R. (2d) 129 (C.A.), Martin J.A., citing Smythe at p. 363, stated:

“It is, of course, well established that where the accused alleges that he was insane at the time of the commission of the act the onus on the accused to prove insanity is discharged by proof of insanity on the balance of probabilities . . .”

The appellant Morrissette argues that the words “until the contrary is proved” in s. 16(4) should be interpreted, based on common law, so as to require an accused to merely raise a reasonable doubt as to his insanity. He assumes that if the words were given this interpretation, s. 16(4) would not violate the presumption of innocence and it would not be necessary to address the Charter arguments in this case.

In my view, the words “until the contrary is proved” cannot be interpreted as requiring an accused merely to discharge an evidentiary burden (i.e., raise a reasonable doubt as to insanity); the words in s. 16(4) clearly impose a persuasive burden on the accused. In R. v. Oakes (1986), 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200, [1986] 1 S.C.R. 103, Dickson C.J.C. discussed the different types of presumptions which exist in criminal law in the context of deciding whether s. 8 of the Narcotic Control Act placed an evidentiary or a persuasive burden on the accused. The provision in question required an accused to “establish” that he was not in possession of a narcotic for the purpose of trafficking. Dickson C.J.C. stated that the phrase “to establish” is equivalent to the phrase “to prove”, and that the use of the word “establish” implied that the accused had to prove, on a balance of probabilities, that he or she was not in possession of a narcotic for the purpose of trafficking (pp. 329-32). It is clear from the reasoning in Oakes that a provision which presumes the existence of some fact (in this case, sanity) “until the contrary is proved”, places a burden on an accused wishing to rebut this fact to prove the contrary (insanity) on a balance of probabilities.

Accordingly, it is necessary, in this case, to measure s. 16(4) against s. 11(d) of the Charter.

The appellants argue that the requirement that an accused person prove his or her insanity on a balance of probabilities is contrary to the presumption of innocence, guaranteed by s. 11(d )of the Charter. In order to resolve this question one must consider the nature of the insanity provisions in our criminal law.
The nature of the insanity provisions

There is controversy in academic circles as to whether insanity operates to negate a “condition precedent” to legal responsibility or whether it operates as a defence in the sense that it negates mens rea. Let me begin by saying that I will use the term “defence” to describe a claim of insanity under s. 16, but only in the broad, general sense of the term which means “any answer which defeats a criminal charge” (Law Reform Commission of Canada, Working Paper 29, “Criminal Law: The General Part—Liability and Defences” (1982), at p. 35), or “any claim which, if accepted, would necessitate an acquittal” (Colvin, Principles of Criminal Law (Toronto: Carswell, 1986), p. 163).

It is true that the exact nature of the insanity defence is very difficult to ascertain. The wording of s. 16 itself is not particularly helpful in this regard. It tells us that a claim of insanity, if proved, will preclude a conviction, but it does not tell us whether a claim of insanity negates mens rea, provides an excuse or justification, or whether it simply exempts an accused from a criminal conviction on policy grounds. Other Code provisions are more explicit; for example, s. 17 tells us that a person who commits an offence under compulsion of certain threats will be excused for committing the offence in certain circumstances.

It is helpful to note, however, that s. 16(1) is worded in a very similar fashion to s. 13, which provides:

13. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.

This is a variation on the common law, which provided that a child under the age of seven was presumed irrebuttably to be incapable of possessing criminal intent and that a child between the ages of seven and 14 was likewise presumed incapable unless there was clear proof of “precocity” so as to establish a real appreciation of the wrong done: see Perkins & Boyce, Criminal Law, 3rd. ed. (1982), c. 8. Once an accused reached the age of 14, the common law presumption of criminal incapacity disappeared and was replaced by a rebuttable presumption of capacity for criminal intent. This accords with the presumption of sanity which existed at common law (enunciated via the M’Naghten rules), was adopted into Canadian criminal law in the first criminal code (see the Criminal Code, S.C.1892, c. 29, s. 11), and accompanying commentary by Mr. Justice Taschereau (the Criminal Code (Toronto: Carswell 1893), pp. 8-9), and continues in the current s. 16(4).

In other words, the nature of the insanity defence is revealed if one views the changing presumptions regarding criminal capacity as a continuum. At common law, this continuum began with an irrebuttable presumption that a child under the age of seven could not have the capacity for criminal intent. Our current Code, s. 13 provides for an irrebuttable presumption that a child under the age of 12 has no criminal capacity. At common law, the continuum provided for a rebuttable presumption of incapacity for children between the ages of seven and 14. Perkins and Boyce state “[t]his presumption is extremely strong at the age of seven and diminishes gradually until it disappears entirely at the age of fourteen” (p. 936). The current Criminal Code cuts off the presumption at age 12; after a person reaches the age of 12 the presumption of sanity in s. 16(4) comes into play. Thus, at this end of the continuum, individuals are presumed to have criminal capacity until such presumption is rebutted on a balance of probabilities (of course, the Young Offenders Act, R.S.C. 1985, c. Y-1, which incorporates a concept of diminished responsibility, applies to young people between the ages of 12 and 18).

While the state of insanity and the state of childhood cannot be equated, the connection between these two situations for the purpose of criminal law is apparent. What these two situations have in common is that they both indicate that the individual in question does not accord with one of the basic assumptions of our criminal law model: that the accused is a rational autonomous being who is capable of appreciating the nature and quality of an act and of knowing right from wrong. With respect to the state of childhood, these basic assumptions are brought into question because of the immaturity of the individual—he or she has not yet developed the basic capacity which justice and fairness requires be present in a person who is being measured against the standards of criminal law. With the state of insanity, these basic assumptions are brought into question because the accused is suffering from some disease of the mind or from some delusions which cause him or her to have a frame of reference which is significantly different than that which most people share. This mental condition means that the accused is largely incapable of criminal intent and should not, therefore, generally be subject to criminal liability in the same way that sane people are. (I note here that s. 16 does not exempt all people with a disease of the mind from criminal liability. The insanity defence is defined in a particular way and only if an accused meets those criteria will his or her mental condition preclude a finding of guilt.)

The foregoing discussion indicates, in my view, that the insanity provisions operate, at the most fundamental level, as an exemption from criminal liability which is predicated on an incapacity for criminal intent. However, in particular cases, this basic incapacity may manifest itself in a number of different ways depending on the claims put forward by the accused. A claim of insanity, with its underlying claim of criminal incapacity, could give rise to a denial of the actus reus or of the mens rea in a particular case. For example, an accused could claim that his or her mental condition is such that when the alleged crime took place, he or she was not acting consciously. This is akin to a claim of insane automatism which denies the essential element of voluntary actus reus on the basis of an internal cause—the accused’s disease of the mind: R. v. Rabey (1980), 54 C.C.C. (2d) 1, 114 D.L.R. (3d) 193, [1980] 2 S.C.R. 513. An accused could also raise the argument that his or her mental condition was such that while he or she was acting consciously and voluntarily, he or she did not have the requisite mens rea. For example, a person charged with murder could claim that while he consciously and voluntarily did the act of chopping, he thought that he was chopping a loaf of bread in half, when, in fact, he was chopping off the victim’s head: see Kenny’s Outlines of Criminal Law, 19th ed. (1966), p. 83, n. 1. In such a case, the insanity claim is manifested as a denial of mens rea. The accused had no intention to bring about the consequence of death. In yet another case, an accused, charged with murder, could argue that while she consciously and voluntarily did the act of killing and while she desired to bring about the death of the victim, she did so because her mental condition was such that she honestly believed that the victim was evil incarnate and would destroy the earth if the accused did not kill him. In such a case, the insanity claim is manifested not as a denial of actus reus or mens rea, but rather as a defence in the nature of an excuse or a justification based on the fact that the accused’s mental condition rendered her incapable of knowing that the act was wrong. …

The foregoing examples illustrate that the insanity defence can be raised in a number of different ways, depending on the mental condition of the accused. All of these examples have one thing in common however. Each is based on an underlying claim that the accused has no capacity for criminal intent because his or her mental condition has brought about a skewed frame of reference. When a person claims insanity, he or she may well be denying the existence of mens rea in the particular case or putting forward an excuse which would preclude criminal liability in the particular case; but he is also making a more basic claim which goes beyond mens rea or actus reus in the particular case—he is claiming that he does not fit within the normal assumptions of our criminal law model because he does not have the capacity for criminal intent. Such a claim may or may not be successful. If the incapacity is such that it fits into the defence of insanity encompassed in s. 16, it will preclude a conviction.

Based on the foregoing, I prefer to characterize the insanity defence as an exemption to criminal liability which is based on an incapacity for criminal intent. I note, however, that this basic claim for an exemption will usually be manifested under s. 16 either as a denial of mens rea in the particular case or as an excuse for what would otherwise be a criminal offence; this is because of the way that s. 16 is worded.

The definition of “legal insanity”, or insanity which will preclude a criminal conviction, is found in s. 16(2) and (3) of the Code. The first part of s. 16(2) has come to be known as the “first arm” or “first branch” of the insanity defence:

16.(2) . .. [A] person is insane when the person is in a state of natural imbecility or has disease of the mind to an extent that renders the person incapable of appreciating the nature and quality of an act or omission . . .

In R. v. Abbey (1982), 68 C.C.C. (2d) 394, 138 D.L.R. (3d) 202, [1982] 2 S.C.R. 24, this court held (per Dickson J., as he then was) that “appreciate the nature and quality of an act or omission” refers to an accused’s ability to perceive the consequences, impact, and results of a physical act and not to an accused’s ability to appreciate that the legal consequences of an act are applicable to him or her. Dickson J. stated, in coming to this conclusion, that a delusion falling under the “first branch” of the insanity defence negatives the element of mens rea, with respect to either the circumstances or consequences which form part of the actus reus. Given the wording of the “first branch” of s. 16(2), this is true in the vast majority of cases. A claim of insanity under the “first branch” will be manifested as a denial of mens rea in the particular case. It is possible, however, that such a claim could also manifest itself as a denial of voluntary actus reus in the particular case. This was clearly established by the decision of this court in Rabey which discussed, inter alia, the defence of insane automatism.

This court also held in Abbey that the “second branch” of s. 16(2) “is concerned with cognitive capabilities, with knowledge, and not with appreciation of consequences”. This provision is also based on incapacity for criminal intent. Such incapacity arises because the accused, due to his mental condition, is incapable of distinguishing between right and wrong. This claim of incapacity does not manifest itself as a denial of mens rea in the particular case. The criminal law is not concerned with whether a sane accused knew that his act was wrong. Knowledge of wrongness is not part of the requirement of mens rea. This is because sane people are presumed to have the capacity to distinguish between right and wrong—if a sane person is of the opinion that murder is not wrong, his opinion makes him “bad” (as opposed to sick) because he has the capacity to distinguish right from wrong. However, if an accused makes a claim of insanity under the “second branch” of s. 16(2), he is challenging the assumption that he is capable of distinguishing between right and wrong. If it is proved that his mental condition brought about such incapacity, he will be excused from criminal liability despite the elements of actus reus and mens rea being established in the particular case. Thus, while a claim of insanity under the “second branch” is based on the same basic denial of criminal capacity upon which a claim under the “first branch” is based, it is manifested not as a denial of actus reus or mens rea, but rather as a claim to be excused for what would otherwise be criminal behaviour.

Based on the foregoing analysis, I owe it to a certain number of parties in this appeal to address a particular argument which they raised, to the effect that the presumption of innocence is not violated by s. 16(4) because an accused has the benefit of s. 11(d)until the Crown has proved both actus reus and mens rea, and it is only after this point that the claim of insanity arises. A number of parties have concluded that this means that if an accused fails to satisfy the jury that he or she was insane within the meaning of s. 16, it is not that failure which leads to a conviction, but rather the other evidence about which the jury must be satisfied beyond a reasonable doubt.…

In my respectful opinion, this argument should be rejected for two reasons. First, it is not necessarily true that the insanity plea is raised only after mens rea has been established by the Crown. What if an accused’s mental condition is such that it operates to negate mens rea in the particular case? The example set out above, in which a person consciously and voluntarily chops off the victim’s head, but believes, because of his mental condition, that he is chopping a loaf of bread in half, illustrates that evidence of insanity could go to negate mens rea in a particular case. In such a case, if the accused were to raise evidence of his mental condition (thereby putting his mental capacity in issue), the trial judge would be entitled to charge the jury on s. 16. In these circumstances, it is only when the trier of fact has rejected the defence of insanity that it may consider the evidence of his mental condition solely with respect to mens rea; this, in turn, has only been allowed in cases where an accused is seeking to deny either the element of planning and deliberation or the specific intent for murder, and to instead be found guilty of a lesser, included offence (i.e., second degree murder or manslaughter). Thus, it is not true that evidence of insanity can be raised by an accused simply to deny mens rea for an offence independent of the insanity defence.

Accordingly, it is not correct, in my respectful view, to state that the issue of insanity arises only after both actus reus and mens rea have been proved by the Crown. If the accused’s insanity puts the existence of mens rea for the particular offence into question, it cannot be said that mens rea has been proved by the Crown before the issue of insanity arises. The Crown cannot be said to have proved anything beyond a reasonable doubt until the end of the trial. Evidence raised by the accused may well give rise to a reasonable doubt about the existence of an essential element, despite the fact that the Crown has raised enough evidence such that a no-evidence motion would fail.

Thus, I cannot agree that “the insanity plea is raised only when mens rea has been established” (emphasis added.). In cases where a claim of insanity is manifested as a denial of the requisite mens rea, it cannot be said that mens rea has been established until after the insanity claim has been raised and has failed.

The second problem with this argument is that even if it were true that the insanity plea is raised only when mens rea has been established, it does not mean that a conviction following a failed insanity claim arises because the Crown has proved the essential elements of the offence and not because the accused could not discharge the burden to prove his or her insanity. Such an argument assumes that the only necessary ingredients for guilt are the proof of actus reus and mens rea. However, this is not true even if s. 16 is ignored for the time being. If evidence is raised in the course of a trial for murder that the accused may have been acting in self-defence, the Crown must disprove the existence of the self-defence justification beyond a reasonable doubt in order for a conviction to follow. If the Crown is able to sufficiently negate the claim of self-defence, it cannot be said that the resulting conviction follows from the proof of actus reus and mens rea and not from the failed self-defence claim. Thus, it could not be said that a reverse onus clause on self-defence would not intrude on s. 11(d);yet such a conclusion would logically follow from the argument put forward by the Attorney-General for New Brunswick and others.

The above reasoning also applies to the defence of insanity. Section 16 makes clear that sanity is essential for guilt (that is, it is essential for guilt that an accused not fall within the definition of insanity in s. 16). If a person was insane at the time the offence was committed, he or she shall not be convicted. Thus, even if the Crown has proved actus reus and mens rea, if a plea of insanity is raised and fails because the accused cannot discharge the presumption of sanity, guilt must follow from the presumption of sanity and not merely from proof of the “essential elements”. The practical implications of this last point will be discussed in greater detail below.

While it is helpful to consider the nature of a claim arising under the insanity provisions in order to gain perspective on the issues in this case, the question arises whether a conclusion on this issue is determinative in the s. 11(d) analysis.

Does the nature of s. 16 determine the Charter issue?

The Crown has argued that sanity is not an essential element of an offence (as is mens rea) and, therefore, does not engage the presumption of innocence.

The Crown takes the position that insanity raises a question of mental capacity, which is not the same as denying mens rea in a particular case. The insanity defence denies that the accused is a “moral agent” and asserts that he or she should therefore be exempt from liability under the criminal law. This position largely accords with the foregoing analysis of the insanity defence as a denial of criminal capacity. However, I am not satisfied that this characterization of the insanity provisions necessarily leads to the conclusion that the presumption of innocence is not violated by the presumption of sanity.

The Crown argues that insanity does not “disprove” an offence (nor, I assume, an essential element of an offence) and that the presumption of innocence is therefore inapplicable to s. 16. The Crown relies on the judgment of McIntyre J. in R. v. Holmes (1988), 41 C.C.C. (3d) 497, 50 D.L.R. (4th) 680, [1988] 1 S.C.R. 914, to the effect that if a statute requires the accused to prove a defence on a balance of probabilities where the Crown has already proved the offence beyond reasonable doubt there is no violation of s. 11(d). Implicit in this argument is the assumption that the insanity provisions provide an exemption for an accused who, but for his insanity, would be found guilty beyond a reasonable doubt. This may or may not be true, depending on the way in which the claim of insanity is raised—as can be seen from the examples set out above. The Crown submits that the insanity claim is a means of escaping criminal liability “above and beyond” the presumption of innocence which applies in respect of the specific offence. The Crown is essentially arguing that the presumption of innocence only operates with respect to essential elements of the offence and with respect to common law defences. A claim of insanity under s. 16 raises a claim for an exemption to criminal liability; it neither negates an essential element of the offence nor raises a common law defence (justification or excuse). Therefore, the requirement embodied in s. 16(4) that the accused prove insanity on a balance of probabilities does not violate the presumption of innocence.

In my view, this argument does not accord with the principles enunciated by this court in R. v. Whyte (1988), 42 C.C.C. (3d) 97, 51 D.L.R. (4th) 481, [1988] 2 S.C.R. 3. In Whyte, the constitutionality of s. 237(1)(a) of the Code was in issue. Section 237(1)(a) raised a presumption of care or control of an automobile upon a finding of occupancy of the driver’s seat, with respect to the offence of impaired driving. Dickson C.J.C. stated (at pp. 109-10):

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. Section 237(1)(a)requires the accused to prove lack of intent on a balance of probabilities. If an accused does not meet this requirement the trier of fact is required by law to accept that the accused had care or control and to convict. But of course it does not follow that the trier of fact is convinced beyond a reasonable doubt that the accused had care or control of the vehicle. (Emphasis added.)

In my view, the principles enunciated in Whyte are applicable to this case and establish that the presumption of sanity embodied in s. 16(4) violates the presumption of innocence. If an accused is found to have been insane at the time of the offence, he will not be found guilty; thus the “fact” of insanity precludes a verdict of guilty. Whether the claim of insanity is characterized as a denial of mens rea, an excusing defence or, more generally, as an exemption based on criminal incapacity, the fact remains that sanity is essential for guilt. Section 16(4) allows a factor which is essential for guilt to be presumed, rather than proven by the Crown beyond a reasonable doubt. Moreover, it requires an accused to disprove sanity (or prove insanity) on a balance of probabilities; it therefore 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.…

A number of parties have raised the argument that a successful claim of insanity under s. 16 does not result in a finding of “innocence” and in the accused going free, but rather results in a special verdict and in the accused being detained in a psychiatric institution under a warrant of the Lieutenant-Governor via s. 614(2) (formerly s. 542(2)) (the “L.G.W. system”). Because the result of a s. 16 claim is not a “true acquittal”, the argument is made that the presumption of innocence is inapplicable…

This argument seems to amount to a claim that the detention under the “L.G.W. system”, which follows from a finding of “not guilty by reason of insanity”, is a result which an accused who raises s. 16 is positively seeking. In other words, an accused who is asking for the “benefit” of a finding of insanity properly bears the burden of proving that he falls within the criteria for special detention. In my view, this argument misses the essential point. An accused who raises s. 16 is raising it in order to avoid being convicted of a criminal offence. He is negating criminal culpability, on the basis of his mental condition, and is not necessarily “seeking” the special detention. The special detention is something which the criminal law imposes upon him for various policy reasons. It is incorrect to say that the accused is choosing special detention; he is seeking to negate his criminal culpability and the result of doing that (over which the accused has no control) is that he is subjected to the “L.G.W. system”….

Finally, a number of parties have argued that s. 16(4) does not violate the Charter because the presumption of sanity is necessary to protect the accused when the Crown raises the issue of insanity. The appellants have argued that such reasoning erroneously assumes that the burden of proof for insanity must necessarily be the same no matter who raises s. 16. Assuming, without deciding, that the Crown may constitutionally raise the issue of insanity, I agree with the appellant Chaulk that there is no reason why the burden of proof on the accused and on the Crown must necessarily be the same. The argument put forward by the Crown, along with other interveners, is valid only if such an assumption is made.

In summary, I find that the presumption of sanity embodied in s. 16(4) of the Code limits the presumption of innocence guaranteed by s. 11(d)of the Charter. I turn now to a consideration of whether s. 16(4) can none the less be justified as a reasonable limit under s. 1 of the Charter.

Is s. 16(4) a reasonable limit under s. 1 of the Charter?

There is no question that the presumption of innocence, guaranteed by s. 11(d)of the Charter, is a fundamental legal right which plays a very important role in our criminal justice system. It has been referred to as “the golden thread” of English criminal law: Woolmington v. Director of Public Prosecutions, [1935]A.C. 462 at pp. 481-2. However, like the other rights and freedoms guaranteed by the Charter, it is subject to limitations under s. 1 of the Charter. The procedure to be followed when the state is attempting to justify a limit on a right or freedom under s. 1 was set out by this court in Oakes, supra:

Objective

Many of the parties have identified the potential difficulties faced by the Crown in proving sanity. The Attorney-General for New Brunswick states that without the co-operation of the accused, evidence of mental illness would be virtually impossible for the prosecution to obtain. If the burden were on the Crown, there would be no way to ensure such co-operation. The Attorney-General of Manitoba has described, in some detail, the impracticality of requiring the Crown to prove sanity. The Code provides no method of forcing an accused to submit to psychiatric examinations unless fitness to stand trial is in issue. The Attorney-General of Canada has described, in detail, the difficulties involved in obtaining a conclusive psychiatric opinion as to an accused’s sanity, and characterizes the objective of s. 16(4) as “to allocate the burden of proof on the issue of insanity in a workable fashion”. A further difficulty arises because the Crown would be required to prove sanity not as of the time of trial, but as of the time of the offence. Given that the Crown will often not know that insanity is going to be raised until some time after the offence takes place, the difficulties mentioned above are compounded.

Accordingly, the objective of s. 16(4) is to avoid placing an impossible burden of proof on the Crown and to thereby secure the conviction of the guilty. In my view, this objective is sufficiently important to warrant limiting constitutionally protected rights and s. 16(4) passes the first branch of the Oakes test.

Proportionality test

1. Rational connection

…In my view, many of the parties have misdirected their arguments on this portion of the Oakes test. The Crown has correctly formulated the rational connection test, but because it adopted the wrong objective for s. 16(4), it has, in my view, applied the test incorrectly to the facts of this case. The Crown correctly stated the rational connection test as follows:

Unlike Oakes and Whyte, supra, this is not a case of a presumption based on a proved fact. The presumption of sanity applies without proof of basic fact, and applies until the contrary is proved.

Given this distinction, the “rational connection” in the present case must be drawn directly between the objective and the measures employed.

If the Crown’s formulation of the rational connection test is employed using the objective suggested above (i.e., to avoid placing a next to impossible burden on the Crown), the result is that s. 16(4) passes the rational connection test. Placing a burden on an accused who raises s. 16 to prove his or her insanity on a balance of probabilities certainly furthers the objective of not putting a burden on the Crown which is virtually impossible to meet. Thus, the presumption of sanity and the reverse onus embodied in s. 16(4) are rationally connected to the objective.

Therefore, it is necessary to turn to the next part of the proportionality branch of the Oakes test: does s. 16(4) impair s. 11(d) “as little as possible”?

2. As little as possible

The Attorneys-General for New Brunswick, Ontario, and Quebec, argue that s. 16(4) impairs the presumption of innocence as little as possible because the persuasive burden is placed on an accused only after the Crown has proved, beyond a reasonable doubt, both actus reus and mens rea. While the Crown is discharging its initial burden, an accused has the full benefit of s. 11(d).

As stated above, it is not necessarily true that the accused’s burden under s. 16 arises only after the Crown has proved both actus reus and mens rea beyond a reasonable doubt. While this will sometimes be the case, insanity will often be manifested as a denial of actus reus or mens rea. Accordingly, I am not convinced by this argument that s. 16(4) impairs the presumption of innocence as little as possible.

Numerous other arguments were made under this branch of the proportionality test (i.e., that the reverse onus will not arise very often, that the burden placed on the accused is “not a heavy onus”, etc.). I am not persuaded by any of these arguments. In my view, the question to be addressed at this stage of the s. 1 inquiry is whether Parliament could reasonably have chosen an alternative means which would have achieved the identified objective as effectively.

The appellants have argued that s. 16(4) does not impair the presumption of innocence as little as possible because the objective of the provision could be obtained in a manner which is less intrusive on Charter rights. For example, Parliament could have enacted a provision which merely requires an accused alleging insanity to meet an evidentiary burden (i.e., raise a reasonable doubt), at which point the burden would shift to the Crown to disprove insanity (or prove sanity) beyond a reasonable doubt. A number of parties have countered this argument with the contention that placing an evidentiary burden on the accused would not be sufficient to achieve the objective. In other words, s. 16(4) impairs s. 11(d) rights as little as possible because any less intrusive means would not achieve the “same” objective or would not achieve the same objective as effectively.…

It is, of course, possible to imagine some combination of insanity provisions which might achieve the identified objective and which would violate s. 11(d) to a lesser extent then does the extant provision. For example, Parliament could have enacted a provision which provided that when an accused raises insanity, he is required to raise a reasonable doubt as to his sanity in order to shift the burden to the Crown to disprove insanity (prove sanity) on a balance of probabilities. The provision could also state that if an accused wishes to raise insanity he must submit to psychiatric examinations at the request of the Crown. These hypothetical provisions would also have to address the problem of obtaining evidence regarding insanity at of the time of the offence. Whether such a combination of insanity provisions would achieve the identified objective as effectively as does s. 16(4) is, of course, a matter of speculation. It is impossible to know what the effects of this alternative would be until it is put into practice.

Some of the parties have argued that any alternative to s. 16(4) which would meet the identified objective could very well bring about violations of other Charter rights. For example, the Charter might be invoked by an individual who was incarcerated under the “L.G.W. system” when only a reasonable doubt existed as to his or her insanity. Some of the parties have also suggested that putting a greater burden on the Crown could lead to violations of s. 8 during the process of gathering evidence. While these arguments are necessarily speculative, they do point out the difficulty faced by Parliament in choosing among the alternative means to meet its “pressing and substantial” objective. As was stated in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, supra, it is not the role of this court to second-guess the wisdom of policy choices made by Parliament. In enacting s. 16(4), Parliament may not have chosen the absolutely least intrusive means of meeting its objective, but it has chosen from a range of means which impair s. 11(d) as little as is reasonably possible. Within this range of means it is virtually impossible to know, let alone be sure, which means violate Charter rights the least.

In summary, I conclude that s. 16(4) violates s. 11(d) as little as possible in achieving its objective. It is therefore necessary to address the last part of the proportionality test: are the detrimental effects of s. 16(4) on the presumption of innocence proportional to the objective?

3. Proportionality between effects and objective

The presumption of sanity and the reversal of onus embodied in s. 16(4) exist in order to avoid placing a virtually impossible burden on the Crown. The burden on the accused is not the full criminal burden; rather, the accused is required to prove his or her insanity on a balance of probabilities. If an accused were able to rebut the presumption merely by raising a reasonable doubt as to his or her insanity, the very purpose of the presumption of sanity would be defeated and the objective would not be achieved. Any other means of achieving the objective could also give rise to violations of other Charter rights.

Section 16(4) represents an accommodation of three important societal interests: avoiding a virtually impossible burden on the Crown; convicting the guilty, and acquitting those who truly lack the capacity for criminal intent. The result of this compromise is that some guilty people will be acquitted and will be dealt with via the “L.G.W. system”, and some insane (and therefore not guilty) people will be convicted and will be stigmatized and punished as criminals. Of course, this would still be the case if the burden on the accused were lowered so as to require him or her to raise a reasonable doubt as to insanity; some insane accuseds may be unable even to raise a reasonable doubt as to insanity. This result is the inevitable consequence of the uncertainty of our scientific knowledge and of our commitment (as expressed in s. 11(d)) not to convict those who were insane at the time of the offence. The alternatives to this compromise raise their own Charter problems and give no guarantee as to whether they will achieve the objective. As I have mentioned above, the Charter does not require Parliament to “roll the dice” in its effort to achieve “pressing and substantial” objectives in order to adopt the absolutely least intrusive legislative provision.

While the effect of s. 16(4) on the presumption of innocence is clearly detrimental, given the importance of the objective that the Crown not be encumbered with an unworkable burden and given that I have concluded above that s. 16(4) limits s. 11(d) as little as is reasonably possible, it is my view that there is proportionality between the effects of the measure and the objective.

Accordingly, s. 16(4) is a reasonable limit on the presumption of innocence which can be upheld under s. 1 of the Charter….

WILSON J.:— I have had the advantage of reading Chief Justice Lamer’s reasons in this appeal. I agree with him that s. 16(4) of the Criminal Code, R.S.C. 1985, c. C-46, infringes s. 11(d) of the Canadian Charter of Rights and Freedoms and that the key issue on this appeal is whether s. 16(4) constitutes a reasonable and demonstrably justified limit on the presumption of innocence under s. 1 of the Charter. I take a different approach, however, from my colleague to the pressing and substantial concern that s. 16(4) is designed to address and to the standard of review that this court should bring to bear on the proportionality aspect of the Oakes test, infra.…

As already mentioned, Whyte stands for the proposition that it is the net effect of a reverse onus provision on the final guilt or innocence of the accused rather than the precise nature of the provision that must be examined under s. 11(d). It is this expansion of Oakes in Whyte that has given rise to the constitutional challenge to the presumption of sanity under s. 11(d) of the Charter. The presumption of sanity requires the accused to establish his or her insanity on a balance of probabilities and, however one conceives the plea of insanity, whether as an exemption, a defence, a justification or an excuse, the persuasive burden imposed on the accused by s. 16(4) permits him or her to be convicted of a crime despite the existence of a reasonable doubt as to his or her guilt. This offends the presumption of innocence on the authority of Whyte.

The constitutional validity of s. 16(4) depends therefore upon whether it can be saved under s. 1.

Section 1 of the Charter

…I start from the premise that the government must have been of the view that it was necessary to impose a persuasive burden on the accused to prove his insanity on a balance of probabilities in order to prevent perfectly sane persons who had committed crimes from escaping criminal liability on tenuous insanity pleas. In other words, the government must have concluded that the imposition of a purely evidentiary burden on the accused, i.e., the burden of adducing sufficient evidence to raise a reasonable doubt in the minds of the jury as to his sanity was not enough. Hence the presumption of sanity and the reverse onus on the accused to prove insanity, bringing s. 16(4) into conflict with s. 11(d) of the Charter as explained in Whyte.

If I am correct in my starting premise, then it would appear that under the first branch of Oakes the government would have to adduce evidence under s. 1 to show that this was a real social problem, that perfectly sane persons who had committed crimes were in significant numbers escaping criminal liability on tenuous insanity pleas and that something had to be done about it.

There is, however, a difficulty here because s. 16(4) merely reflects what, as we have seen, was already the common law and had been the common law for some time prior even to the enactment of the original section in Canada’s first Criminal Code. There is therefore no historic experience in our jurisdiction with a purely evidentiary burden in order to show that such a burden was not adequate to achieve the government’s objective.

My colleague sees the pressing and substantial concern somewhat differently. He says that the government objective was to relieve the prosecution of the “impossibly onerous burden” of proving the sanity of the accused beyond a reasonable doubt which it would have to do, he says, if the burden on the accused was merely an evidentiary one. In other words, my colleague narrows the characterization of the government objective to a purely procedural one arising in the context of the trial. He sees s. 16(4) as “a purely evidentiary section whose objective is to relieve the prosecution of the tremendous difficulty of proving the accused’s sanity in order to secure a conviction.” He does not identify any pressing and substantial concern to which this has in fact given rise. The provision is, in effect, a prophylactic measure designed to guard against a possible problem that might arise absent the reverse onus.

I am of the view that this represents a significant departure from the approach taken to s. 1 by this court up until now. This court has consistently evaluated laws subject to Charter challenge in terms of their justifiability as a response to existing social problems. The pressing social problem at which s. 16(4) is aimed must, it seems to me, be the one I have already identified, namely, that guilty persons were escaping criminal liability on tenuous insanity pleas. Accordingly, if the accused wished to plead insanity it was essential that he be made to bear the persuasive burden. The prosecution must be given a “leg up” through the enactment of a presumption of sanity and the imposition on the accused of the burden of proving insanity on a balance of probabilities. Otherwise, as my colleague says, an accused whose sanity is in doubt might escape conviction.

I pause here to emphasize that, in my view, by analogy to the presumption of innocence, it is better that a guilty person be found not guilty by reason of insanity and committed for psychiatric treatment that an insane person be convicted of a crime.

Unlike my colleague, I do not believe that s-s. (4) of s. 16 can be considered apart from s-ss. (2) and (3). The presumption in s-s. (4) is accordingly operative to presume that the accused did not have disease of the mind (or natural imbecility) which made him incapable of appreciating the nature or quality of his act or of knowing that it was wrong at the time he did it. If the accused merely had the evidentiary burden and he or she succeeded in producing evidence sufficient to raise a doubt in the minds of the jury that one of these elements was present, then the prosecution clearly must dispel that doubt. Although I agree that the burden on the prosecution is not an easy one, I think it overstates the case to say that it is an “impossibly onerous” one. It is not, in my opinion, a matter of the prosecution’s having to prove sanity in a vacuum; it is a matter of removing any doubt raised by the accused in the minds of the jury as to the presence of any of the elements spelled out in s-ss. (2) or (3). The extent of the burden on the prosecution will vary from case to case depending upon the evidence of insanity which the accused is able to produce, assuming that such evidence is sufficient to raise a doubt at all in the minds of the jury as to his sanity. The prosecution’s task is simply to address any doubt raised by specific evidence adduced by the accused to support his or her insanity plea. The prosecution faces this kind of challenge all the time in cases where, for example, drunkenness is raised as a defence. It is my view that the burden is not an “impossibly onerous” one.

Be that as it may, I do not believe that Chief Justice Lamer’s characterization of the pressing and substantial concern succeeds in any event in overcoming the hurdle of the absence of any historic experience with a purely evidentiary burden.

The question posed by the Chief Justice’s approach, it seems to me, is therefore whether s. 16(4) of the Code can be justified under s. 1 as a prophylactic measure designed to fend off a hypothetical social problem that might arise if accused persons pleading insanity had to meet only an evidentiary burden. This prompts me to ask: do we wish to go down this path and justify infringements of guaranteed Charter rights on a purely hypothetical basis? And in particular, do we wish to go down this path where such a fundamental tenet of our justice system as the presumption of innocence is at stake? I have serious reservations about adopting such a course even in cases where it could be said that the hypothesis was a strong one which I do not think it is in this instance for reasons which I will discuss later.…

4. The proportionality test

There are three parts to the proportionality test in Oakes. I do not take issue with Lamer C.J.C.’s conclusion on the first of these that s. 16(4) is rationally connected to the legislative objective being sought, whether that objective is perceived in his narrow terms or in my broader terms. The second part is commonly referred to as the “minimal impairment” test and poses more difficulty.

The issue under this part of the Oakes test is whether some other legislative provision could achieve the desired objective while impairing the Charter right “as little as possible”. Lamer C.J.C. is of the view that Parliament is not required to seek and adopt “the absolutely least intrusive means of attaining its objective”. He indicates that he is unwilling to embark on a course of “second-guessing” the wisdom of Parliament’s choice of legislative means and cites some recent decisions of this court as authority for this differential attitude. In my view, this is not a case for deference. In one of the cases on which the Chief Justice relies, Irwin Toy Ltd. v. Quebec (Attorney-General) (1989), 58 D.L.R. (4th) 577, 25 C.P.R. (3d) 417, [1989] 1 S.C.R. 927, this court indicated that there might be exceptions to the stringent review called for under this part of the Oakes test. Whether or not such an exception was warranted would depend upon the role Parliament was fulfilling in enacting the impugned legislation.

As I understand this aspect of Irwin Toy, an exception may be made where the legislature mediating between the competing claims of groups of citizens or allocating scarce resources among them is forced to strike a compromise on the basis of conflicting evidence. In such cases there will be a substantial policy component to the choice of means selected by the legislature and that choice should be respected even if it cannot be said to represent the “least intrusive means”. In my view, Irwin Toy does not stand for the proposition that in balancing the objective of government against the guaranteed right of the citizen under s. 1 different levels of scrutiny may be applied depending upon the nature of the right.

The prerequisite for the exception to the minimal impairment test in Oakes, as I understand Irwin Toy, isthat the guaranteed right of different groups of citizens cannot be fully respected; to respect to the full the right of one group will necessarily involve an infringement upon the right of the other. In such a circumstance Irwin Toy holds that it is appropriate for the government to fashion a compromise on the basis of policy considerations. …

In my view, this is not a situation calling for a departure from the strict standard of review set forth in Oakes. On the contrary, the issue on appeal seems to be the quintessential case of the state acting as the “singular antagonist” of a very basic legal right of the accused rather than in the role of “mediating between different groups” as discussed in Irwin Toy. This is, in my view, an appropriate case in which to apply the stricter standard of review on the “minimal impairment” issue.

The appellants submit that the government’s objective can be met by imposing only an evidentiary burden on the accused and they cite the American experience in support. I agree that the American experience is relevant to the minimal impairment issue as well as to the existence of a pressing and substantial concern because a substantial number of states have the lesser requirement that once the issue of insanity is put into play by the accused, the prosecution must prove his or her sanity beyond a reasonable doubt: 24 states as of 1983 (see American Bar Association’s First Tentative Draft: Criminal Justice Mental Health Standards, op. cit., p. 292). This is also the rule which has governed all federal crimes in the United States ever since the Davis case.

As mentioned earlier, the U.S. Supreme Court specifically rejected in Davis the argument that insanity is a fairly easy condition to feign or simulate and that “[m]erely doubtful evidence of insanity would fill the land with acquitted criminals”. The case made by Mr. Justice Harlan, speaking for the unanimous court, may have become even stronger as the state of psychological and psychiatric knowledge has increased. The argument is sometimes advanced that feigning insanity is easy but in fact it appears that nothing is further from the truth. As the body of scientific and diagnostic knowledge about mental illness develops and is consolidated by interdisciplinary research, the disease becomes more and more clearly defined. As Professor Weihoven stated in Mental Disorder as a Criminal Defense (1954), at p. 46:

Actually, it would in most cases be extremely difficult for an imposter to mislead a competent psychiatrist... The ordinary malingerer does not realize that the various forms of mental disorder have their characteristic symptoms, and that displaying a hodge-podge of symptoms will not only fail to convince, but will rather clearly reveal his malingering.

He does, however, caution that in order to arrive at an accurate diagnosis of malingering in difficult cases, some opportunity for examination and observation by impartial experts should be put in place. Nevertheless, we can say as a general rule that, everything else being equal, as scientific knowledge about mental illness increases the possibility of a successful feigned insanity plea diminishes.

Assuming for the moment that the standard of proof on the accused is reduced to a purely evidentiary burden, what is the burden on the prosecution? Chief Justice Lamer has characterized it at pp. 33-5 [ante pp. 27-8] as the “impossible burden . . . of proving an accused’s sanity in order to secure a conviction” (emphasis added).

As already mentioned, I believe that the Chief Justice has overstated the burden that would lie on the Crown in the absence of s. 16(4). If the plea of insanity pursuant to s. 16 of the Code isviewed as a defence or a justification or excuse, then the procedure set forth by Dickson C.J.C. in R. v. Holmes, supra, would govern. He said at p. 513:

The basic principle of the common law has been that the accused need not prove a defence. Once an accused raises the possibility that a defence exists whether by pointing to some fact in the Crown evidence or by leading defence evidence, the Crown is required to disprove the defence beyond a reasonable doubt. The common law has not distinguished in this area between defences that challenge the existence of a necessary element of the offence and those defences that admit the mens rea and actus reus but avoid criminal liability because of circumstances that excuse or justify the conduct. (Emphasis added.)

In the absence of s. 16(4) the onus would still be on the accused to adduce evidence that makes insanity “a live issue fit and proper to be left to the jury”: R. v. Gill (1963), 47 Cr. App. R. 166 at p. 172. The burden on the Crown would then be to remove any doubt raised by the accused in the jury’s mind as to the presence of any of the elements of insanity as set out in s. 16(2) and 16(3).

Chief Justice Lamer acknowledges that the insanity defence is invoked infrequently given the significant constraint on liberty that follows a successful plea. Nevertheless, he is of the view that it would be invoked more often if the standard of proof were lowered to a purely evidentiary burden on the accused. There is no support for this proposition and the experience in the United States seems to be to the contrary. This is not surprising since a successful insanity plea is not an open door to freedom. It is a mandate for confinement in an appropriate institution for treatment rather than confinement simpliciter. The mean length of time of LGW detentions is six years and four months: see Hodgins et al., op. cit., Table 5. Moreover, the principle already stated that it is better that a guilty person be found not guilty by reason of insanity and committed for psychiatric treatment than that an insane person be convicted of a crime is, in my view, fully in keeping with both Charter values and the most basic tenets of our criminal justice system.

For these reasons, I am not persuaded that s. 16(4) impairs the accused’s right to be presumed innocent as little as is reasonably possible. Rather, I am of the view that the government’s objective could be quite readily met by imposing a purely evidentiary burden on the accused. The infringement on s. 11(d) of the Charter resulting from s. 16(4) is accordingly not saved by s. 1.

While striking down s. 16(4) may represent a substantial departure from our criminal law tradition, I believe that it is necessitated by the expansive reading this court gave to s. 11(d) of the Charter in Whyte and by the absence of any hard evidence to show that the provision constitutes a reasonable and demonstrably justified limit under s. 1.

It follows, of course, from the above analysis that the common law principle which is reflected in s. 16(4) also infringes s. 11(d) and is not saved by s. 1.…

The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by
McLachlin J. (dissenting):
This case raises fundamental questions relating to the presumption of sanity in the Criminal Code, R.S.C. 1985, c. C-46. First, does the presumption of sanity offend the presumption of innocence embodied in s. 11(d) of the Canadian Charter of Rights and Freedoms? Secondly, how should the definition of insanity in s. 16(2) of the Code be interpreted: when the Code speaks of “knowing that an act or omission is wrong”, does it mean legally “wrong” or morally “wrong”? I respectfully disagree with Lamer C.J.C. and Wilson J. on each of these issues.

Is s. 16(4) of the Code inconsistent with s. 11(d) of the Charter

Construction of s. 16 of the Criminal Code

The question posed is whether s. 16(4) of the Criminal Code, which provides that every one is presumed sane until the contrary is proved, is invalid because it infringes the presumption of innocence found in s. 11(d) of the Charter.

The problem can be approached in two different ways. The first option is to treat sanity for the purposes of analysis as relating to an essential element of a criminal offence or to an exculpatory defence: Colvin, “Exculpatory Defences in Criminal Law”, 10 Oxford J. Legal Stud. 381 (1990), at p. 394. This approach inexorably leads, as the Chief Justice’s reasons demonstrate, to the conclusion that the presumption of sanity infringes s. 11(d) of the Charter. The question then becomes whether it is justified under s. 1 of the Charter.

The second option sees sanity as relevant, not to the essential elements of or exculpatory defences to a criminal offence, but rather as the basic pre-condition of criminal responsibility. On this view, the question of sanity relates not to guilt or innocence, but to the more fundamental issue of whether the accused can fairly be held criminally responsible for his or her acts or omissions.

Professor Alan Mewett identifies these alternate approaches to the problem in “Insanity, Criminal Law and the Charter”, 31 C.L.Q. 241 (1989). He states, at p. 241:

One assumes that it will not be difficult to uphold the validity of [the presumption of sanity] either by using s. 1 of the Charter, it being impossible to prove sanity, or simply because the issue of insanity arises at a tangent to the basic principles of criminal liability and does not affect the prosecution’s burden to prove beyond a reasonable doubt everything that constitutes guilt.

Lamer C.J.C. takes the view that the presumption of sanity in s. 16(4) violates the presumption of innocence found in s. 11(d)but that, as Professor Mewett suggests, the provision is saved under s. 1 of the Charter. I, on the other hand, favour the alternative route identified by Professor Mewett: because the question of insanity “arises at a tangent to the basic principles of criminal liability”, the presumption found in s. 16(4) does not offend s. 11(d)of the Charter. In my opinion, this approach best accords with the rationale underlying the insanity provisions of our criminal law as well as the wording of s. 16 of the Criminal Code.

The underlying rationale

[McLachlin J. reviews the ‘historical and philosophical underpinnings of the universal notion that insane persons should not be held criminally responsible for their acts and omissions in the same way that sane persons are’.]

…They reflect a fundamental conviction that criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong. This is the fundamental pre-condition for imposition of criminal liability.

The existence of sanity as the fundamental pre-condition of criminal responsibility is not negated by the fact that insanity may also be seen as relevant to the question of whether the essential elements of a criminal offence have been established or whether an exculpatory defence is raised. As Lamer C.J.C. points out, insanity may be seen as negating the mens rea of the offence or the presence of a voluntary, conscious act, required for the actus reus of the offence: see, for example, R. v. Rabey (1980), 54 C.C.C. (2d) 1, 114 D.L.R. (3d) 193, [1980] 2 S.C.R. 513. Similarly, insanity might be relevant to an exculpatory defence in the nature of an excuse or justification, such as provocation or self-defence. But it does not follow from the fact that insanity may be relevant to the elements of a criminal offence or to defences, that it should be regarded as only relevant to the essential elements of, or exculpatory defences to, criminal offences, or that s. 16 of the Criminal Code should be read as focussing on them. The fact that insanity might be relevant to these matters does not preclude the notion honoured from Aristotle’s time to the present that the question of guilt or innocence arises only where the actor is a sane, responsible agent capable of discerning right and wrong.

The language of s. 16

Having established that the underlying rationale of our insanity provisions is the broad concept that criminal responsibility should be confined to persons capable of discerning between right and wrong, I turn to s. 16 of the Code itself. In my view, an examination of the wording and functioning of s. 16 confirms that it should be read as relating to this fundamental pre-condition for the assignment of criminal responsibility rather than to the elements of an offence or to particular defences.

The language of the Code makes it clear that s. 16 is concerned only with capacity for criminal responsibility. Section 16(2) provides that a person is insane when, due to disease of the mind, the person is incapable of appreciating the nature or quality of an act or omission or of knowing that an act or omission is wrong. As the authors of Mewett and Manning point out at p. 234, the proper inquiry is thus not into what the accused actually appreciated but, rather, into what the accused’s capacity was.

[I]n insanity the ultimate question is the accused’s capacity—it is not concerned with what he actually appreciated and is thus not concerned with actual mens rea or actual actus reus. Insanity is a defence because it affects the capacity of the accused.

By contrast, insanity as it relates to the essential elements of an offence or defences to it, on the other hand, is concerned not with capacity, but with the actual state of mind of the accused. To focus on insanity as somehow denying an essential element of the offence or establishing a defence is to fail to appreciate the proper operation of the insanity provisions found in s. 16 of the Code. It confounds the question of capacity for criminal responsibility with the quite different question of what the accused actually appreciated.

It is true, of course, that an accused who does not have the capacity to appreciate something cannot have appreciated it; the point, however, is that the insanity inquiry never looks beyond capacity to actual mens rea or actus reus. For practical purposes, where insanity becomes an issue at trial, there will be objective evidence from which, absent the claim of insanity under s. 16 of the Code, the trier of fact will be justified in inferring the existence of the essential elements of the offence, i.e. the actus reus and mens rea. The claim of insanity, however, pre-empts the traditional inference-drawing process on the ground that a person without the capacity for choice as defined in s. 16 of the Criminal Code isnot morally culpable. Because of lack of capacity, therefore, the issue of actus reus and mens rea never arises.

This capacity for choice is a fundamental prerequisite to attribution of criminal responsibility and punishment. To limit application of the insanity provisions to situations where mental disorder within s. 16 negatives mens rea would fail to accord with this precept; moreover, and importantly, it is not what s. 16 of the Code directs. A person can be found insane within s. 16 even where mens rea in the strict sense can be inferred. As Ferguson, op. cit., explains, any other approach would be without moral justification (at p. 140):

An insane person, particularly a psychotic person who has delusions, may have mens rea in the strict sense, for example, an intent to kill, but it is a mens rea concocted in an irrational mind. For one who is insane the normal controls, beliefs and perceptions of reality which influence the right-minded citizen are absent or impaired. The capacity to reason or choose are [sic]impaired even though mens rea in the narrow sense exists.

This logic is equally applicable to exculpatory defences as to the elements of mens rea and actus reus. A defence may be defined as “any claim which, if accepted, would necessitate an acquittal”: Colvin, Principles of Criminal Law (1986), p. 163. But a successful claim of insanity does not produce an unqualified acquittal. Professor Colvin, in “Exculpatory Defences in Criminal Law”, op. cit., makes this point (at p. 392):

When insanity provides an exculpatory defence, the actor remains very much the concern of the criminal law. The insanity rules identify special mental conditions under which persons cannot be expected to ensure that their conduct conforms to the requirements of law; and therefore the general law of criminal culpability is unsuited. The actor is formally acquitted because mental impairment has made the standard penal sanctions inappropriate. Alternative coercive measures may, however, be taken of the potential dangerousness of the condition. (Emphasis added.)

A regime which relieves a person from traditional criminal sanction but substitutes alternative coercive measures, as the Criminal Code does when a person charged with an indictable offence is found to be insane, is not one which treats insanity as a true exculpatory defence. AsProfessor Richard Mahoney writes in “The Presumption of Innocence: A New Era” (1988), 67 Can. Bar Rev. 1 at p. 14, implicit in the nature of a true defence is the notion that: “. . . an accused who has a true defence is just as ‘innocent’ as an accused who has not been shown to have committed all the essential elements of the crime charged”.

Were insanity under s. 16 of the Code a true defence, we would expect that a finding of insanity within the terms of s. 16 of the Code would result in the same disposition, from the point of view of the accused, as a finding that the accused has not been shown to have committed the essential elements of the offence. That, of course, is not the case; an accused who is found to be insane within the terms of s. 16 of the Code iscommitted for treatment under a Lieutenant-Governor’s warrant. Implicit in this verdict is a determination that while the accused cannot be held morally culpable for his or her conduct, the accused is not absolutely acquitted in the same way as one who either has not been shown to have committed the essential elements of the offence or who does have a true defence.

I do not attach undue significance to the wording of the special verdict—”acquitted on account of insanity”—which s. 614 of the Criminal Code directs for persons charged with an indictable offence who are found to be insane within the terms of s. 16 of the Code. To refer again to the passage from Professor Colvin quoted above, while an insane person is “formally acquitted”, “alternative coercive measures” are imposed—namely, potentially indefinite detention under a Lieutenant-Governor’s warrant. To equate an acquittal on account of insanity with an acquittal “on account of innocence” (by which I mean absence of the essential elements of the offence or presence of an exculpatory defence) is to deny the very different consequences which flow from those two verdicts and, in truth, to allow form to triumph over substance.

The conclusion that insanity does not qualify as a defence in the true sense of the term, finds support in the fact that the Crown may lead evidence of insanity, notwithstanding that the accused may have disavowed the claim and subject to a discretion in the trial judge to exclude evidence of insanity when the interests of justice so require: R. v. Simpson (1977), 35 C.C.C. (2d) 337, 77 D.L.R. (3d) 507, 16 O.R. (2d) 129 (Ont. C.A.); R. v. Saxell (1980), 59 C.C.C. (2d) 176, 123 D.L.R. (3d) 369, 33 O.R. (2d) 78 (Ont. C.A.). This principle reflects the view that insanity is not a defence per se but, rather, that sanity is a condition precedent to attribution of criminally responsibility and punishment; the accused must be sane before any consideration of the essential elements of the offence or exculpatory defences becomes relevant.

The place of the insanity provisions of the Criminal Code provides further support for the notion that Parliament viewed them as establishing the basic pre-condition for criminal responsibility rather than in terms of specific elements or defences relevant to criminal offences. Section 16 finds itself near the beginning of the Code. It may be viewed as logically related to s. 13 of the Code which provides that:

13. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.

In each case, the issue is whether it is fair or just to hold the person in question criminally responsible. In neither case are the elements of the offence or potential defences relevant.

Finally, if insanity were concerned only with the essential elements of an offence or defences to it, s. 16 would be unnecessary. It would be sufficient to leave it as a matter of evidence to be considered in determining whether the Crown had discharged its burden of proving the guilt of the accused beyond a reasonable doubt.

I arrive then at this conclusion. To conceive the insanity provisions of the Criminal Code narrowly in terms of the essential elements of criminal offences or exculpatory defences ignores the historical and philosophical origins of the fundamental precept that sanity is a pre-condition of criminal responsibility. It violates the language of s. 16 of the Code, which refers to capacity for criminal responsibility rather than actual states of mind. It is at odds with the fact that insanity in s. 16 can be raised by the Crown in circumstances where neither the elements of the offence nor a defence are at issue. And it confuses true acquittal, the result of the absence of an essential element of an offence or the presence of a defence to it, with formal acquittal coupled with alternative coercive measures because mental impairment renders the imposition of true penal responsibility inappropriate. Rather than straining to confine the insanity provisions in the dual straitjacket of the “elements” of or “exculpatory defences” to an offence, I prefer to view s. 16 as referring to a more basic precept of the criminal law system—the notion that the attribution of criminal responsibility and punishment is morally and legally justifiable only for those who have the capacity to reason and thus to choose right from wrong.

Section 16 of the Code and the Charter

The next question is whether the presumption of sanity, viewed as the fundamental pre-condition of criminal responsibility, offends the presumption of innocence embodied in s. 11(d)of the Charter. The answer to this question must be negative. The presumption of innocence found in s. 11(d)of the Charter is merely another way of expressing the principle that the Crown must prove an accused’s guilt beyond a reasonable doubt. That being the purpose of the presumption of innocence, it follows that the presumption of sanity cannot be contrary to s. 11(d)because, as Professor Mewett observed in the passage set out earlier, the issue of insanity “does not affect the prosecution’s burden to prove beyond a reasonable doubt everything that constitutes guilt”. The presumption of sanity in s. 16(4) of the Criminal Code merely relieves the Crown from establishing that the accused has the capacity for rational choice which makes attribution of criminal responsibility and punishment morally justifiable. The Crown must still prove the guilt of the accused—i.e. the actus reus, the mens rea, and the absence of exculpatory defences raised on the evidence—beyond a reasonable doubt.

I thus conclude that as a matter of logic, the presumption of sanity does not violate s. 11(d). But given that s. 11(d) reflects the principles of fundamental justice basic to criminal procedure referred to more generally in s. 7, it may not be amiss to consider whether this result will in fact create an injustice. In my view, such evaluation may serve as a useful check in considering the ambit of principles of justice, and is not confined to s. 1.

It is my conclusion that the presumption of sanity, viewed as I have suggested, does not violate the fundamental notion of procedural fairness which underlies the procedural guarantees of the Charter, of which s. 11(d) isone. The criminal law, from time immemorial, has presumed that persons are sane and responsible. This presumption reflects the dignity which the law accords to each human being, and avoids the practical difficulties associated with requiring the Crown to prove in each case that the accused was sufficiently sane to justify the imposition of criminal responsibility. The practical and fair approach is to presume sanity and responsibility, subject to certain exceptions—such as juveniles—and subject to the accused’s right to rebut the presumption on grounds of insanity. Viewed thus, the provisions of the Criminal Code dealing with insanity, far from violating a fundamental principle of justice, reflect the fundamental precepts upon which our legal system and our Charter are based.

There is no suggestion that the present system results in injustice. The system as it exists in this country seems to be working well. Indeed, the debate between Lamer C.J.C. and Wilson J. is not as to whether the present law creates practical injustice which must be remedied, but whether changing the system would create an injustice.

The reality suggested by the Canadian experience is that accused persons appear to have no difficulty establishing insanity on a balance of probabilities where it exists. The diagnosis, depending as it does on the accused’s state of mind, is peculiarly within the accused’s power. Nor is there any suggestion that accused persons are unable to obtain whatever expert assistance as they may require to establish the plea. These features distinguish the presumption of sanity from the evil of requiring the accused to disprove the elements of an offence, upon which the presumption of innocence rests. A requirement that an accused disprove the elements of the offence, has long and universally been recognized by our legal system as raising a grave danger of injustice; notwithstanding current debate, the same cannot be said of the presumption of sanity.…

In view of these conclusions, I need not consider the application of s. 1 of the Charter.…

 

People v. Kohl
Court of Appeals of New York
72 N.Y.2d 191 (1988)

The decisive issue is whether Penal Law § 40.15, defining New York’s affirmative defense of mental disease or defect, violates the State constitutional Due Process Clause because Penal Law § 25.00 (2) places the burden of proof by a preponderance of evidence on defendants for all affirmative defenses. We conclude that there is no State constitutional violation because placing this burden on the defendant does not relieve or transform the People’s primary and constant burden of proving, beyond a reasonable doubt, all the elements of the crimes charged, including all components of the applicable culpable mental state element. Thus, we affirm the Appellate Division order upholding the conviction.

Defendant rented a house on a dairy farm in which he resided with his girlfriend and their infant son. On May 13, 1985, Peter Schiltz took his two sons, aged 2 and 3, with him to the dairy farm to deliver feed. When the delivery was completed, Schiltz lifted his sons into the front seat of his truck and started to leave. Defendant came out of his house and fired shots from a .12 gauge shotgun into the front seat. The initial shots killed one son and wounded the other and Schiltz. Returning to his house, defendant told his girlfriend that the man outside had sexually assaulted defendant’s children. Defendant reloaded the gun and ran out screaming, “I got to get him. He’s getting away.” Schiltz had staggered to the barn where defendant stalked him, firing two more shots. Schiltz was on his hands and knees pleading for his life when defendant fired two final, fatal shots, saying, “Take that, you son of a bitch.” The owner of the farm appeared and yelled, “Why, why did you do this?” Defendant said that Schiltz was going to pay one of his sons to sexually assault defendant’s infant son. Before the police arrived, defendant assured his girlfriend, “They can’t hurt me. I’m from another planet.”

Defendant was charged with two counts each of intentional and depraved mind murder, second degree, and one count each of intentional and depraved mind assault, first degree. He waived his right to jury trial, and indicated that he would assert the affirmative defense of mental disease or defect (Penal Law § 40.15).

At the bench trial, the prosecution at first concentrated on the factual developments by testimony of the eyewitnesses. The defense then called the defendant’s girlfriend and his mother, who testified defendant frequently complained of severe head pains and exhibited bizarre behavior. Two psychiatrists, as experts for defendant, added that he was suffering from schizophrenia, paranoid type. The People presented two psychiatrists who, after examination of defendant, concluded he was not suffering from any mental disease or defect. Three of these psychiatrists agreed that at the time defendant fired the gun he intended to shoot his victims and that it was reasonable to conclude that defendant knew that firing a gun could kill his victims.

The trial court found defendant guilty of intentional murder of Schiltz, depraved mind murder of one son, and depraved mind assault of the other son. The trial court expressly found that “each and every element of those three counts . . . have been proven beyond a reasonable doubt” and that “defendant has failed to prove by a preponderance of the evidence that he should be found not guilty because he lacked criminal responsibility by reason of mental disease or defect”.

In New York, criminal responsibility may be avoided if “as a result of mental disease or defect, [defendant] lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong” (Penal Law § 40.15). Prior to 1984, the so-called insanity defense was catalogued as a traditional defense which the prosecution bore the burden of disproving beyond a reasonable doubt, in addition to its usual burden as to all elements of the crimes charged (Penal Law § 25.00 [1]; and former § 30.05 [2]). The prosecution, of course, enjoyed the presumption that all persons are sane. Thus defendant, even under former law, bore some burden of coming forward with evidence rebutting the presumption of sanity. The presumption, however, was rebuttable: “[the] slightest creditable attack . . . even ‘non-psychiatric proof’ alone might overcome the presumption and sustain a verdict of acquittal”. In 1984, after years of intensive study and debate, the Legislature repealed Penal Law § 30.05 and substituted Penal Law § 40.15, which made mental disease or defect an “affirmative” defense.                      

The United States Supreme Court has upheld several statutes placing the burden of proof for insanity on a defendant. In Leland v. Oregon (343 U.S. 790), a murder conviction was challenged on the ground that requiring defendant to prove insanity beyond a reasonable doubt at the time of the murder violated due process under the 14th Amendment. The Supreme Court upheld the Oregon statute, noting that the burden of proving premeditated design—that statute’s mens rea—was on the People initially and at no time shifted to the defendant. Defendant, on the other hand, had the burden of proving insanity—a legally distinct issue. The Supreme Court gave special weight to the fact that the jury was instructed that they first had to consider whether the People had sustained their full burden, and that only if satisfied beyond a reasonable doubt of defendant’s guilt could the jury then turn to the issue of defendant’s insanity and his burden in respect to it.

… Recognizing the high hurdles impeding a successful federal constitutional challenge, defendant asserts that the New York State Constitution should provide a more stringent due process standard than that allowed by the Supreme Court cases, and that, alternatively, New York’s presumption of sanity renders Penal Law § 40.15 unconstitutional.

… Our substantive analysis begins with the axiom that in a criminal prosecution due process imposes on the prosecution the unalterable burden of proving beyond a reasonable doubt every element of the crime charged (In re Winship, 397 U.S. 358, 364; People v. Patterson, 39 NY2d 288, affd 432 U.S. 197). Defendant argues that the 1984 amendment violates the State constitutional due process guarantee in that it, in effect, transfers to defendant the legal responsibility of establishing innocence by disproving the culpable mental state—an essential element of the crime charged. The new statute does not do that.

Both the crime-defining statute and the affirmative defense one include consideration of and the production of evidence bearing on the defendant’s mental state and processes at the time of the crime. However, the core of the People’s proof and burden on the issue of criminal culpability established that defendant, at the time he fired the shots with respect to separate victims, “intended” his act, i.e., had a “conscious objective . . . to cause [the] result or to engage in [the] conduct” (Penal Law § 15.05 [1]), and acted “recklessly”, i.e., with “[awareness of] and [conscious] [disregard] [of] a substantial and unjustifiable risk that [the] result will occur or that [the] [circumstances] exist” (Penal Law § 15.05 [3]). This was established by eyewitness testimony of defendant’s actions and by his statements during and shortly after the shooting. Defendant, in turn, tried to establish by way of lay and expert testimony that he was “insane”, a precise legal concept not necessarily inconsistent with the culpable mental state of legal intent or recklessness.

We must caution, however, that if one is unable to appreciate the nature and consequences of the conduct (Penal Law § 40.15), it may be difficult to support a finding, at least in some cases, that the person had “conscious objective” to kill the victim (Penal Law § 15.05 [1]; § 125.25 [1]). For this reason, in a case where the concepts defined in those sections factually overlap with one another, it may be legally impossible in a given case for such a person to form a “conscious objective” to commit the crime. Then, the affirmative defense statute suffers the potential of impermissibly shifting to defendant the burden of disproving the formation of conscious objective to kill another human being, and the statute as applied could be unconstitutional.

Thus, in a particular case, this potentiality could sow confusion and erroneous application of rules among juries with respect to the People’s burden of proving the element of intent and defendant’s burden of proving the affirmative defense of insanity. This can be reasonably safeguarded by jury instructions which should emphasize the People’s primary, ultimate, and nontransferable burden of proving all the elements of criminal intent beyond a reasonable doubt. Indeed, without transferring any burden to the defendant, the trial court should also, after the primary instructions, sequentially advise the jury that defendant bears a different burden on insanity, and that evidence of insanity relating to whether defendant knew what he was doing must be considered by the jury in its consideration of the People’s nontransferable satisfaction of its burden to prove intent beyond a reasonable doubt. In this bench trial, of course, the Trial Judge served as finder of fact, and the defendant does not argue that the court improperly intermixed the respective burdens of proof.
* * *
Accordingly, the order of the Appellate Division should be affirmed.


            d. Diminished Responsibility

 

R. v. More
Supreme Court of Canada
[1963] 3 C.C.C. 289; [1963] S.C.R. 522

The judgment of Cartwright, Abbott, Judson, Ritchie and Hall JJ. was delivered by
JUDSON J.:
The accused shot his wife through the head while she was asleep about 5 o'clock on the morning of September 27, 1962. He then wrote a number of letters explaining why he had done it. He concealed his crime during the day and during the afternoon he attempted suicide by shooting himself through the head. Although seriously wounded, he did not die and at 8 o'clock in the evening of September 27, he telephoned the police to tell them what he had done.

… He accumulated many debts [as a result of an unsuccessful business venture]; he was being hard-pressed by his creditors at the time of the crime; and there is no doubt that he was suffering from some mental disturbance that caused him to do what he did….

He was up twice during the night of September 27 thinking about his troubles while his wife was sleeping. He said that the second time he got up was about 5 a.m. and that he sat around smoking and thinking. He gave his description of the shooting in the following words:

From there the only next thing I can remember is standing by the bed with the rifle in my hand and hearing it go off.

He also said that immediately before the rifle was discharged he was thinking

what my wife and I had here on earth and what it would be like in a better world ahead, Heaven ... I thought what a better place it would be, that we would not need to think of money problems or anything like that.

The letters that he wrote after the shooting of his wife indicated the same kind of mental disturbance. Dr. Gilbert L. Adamson, who had been practising in the field of neurology and psychiatry in Winnipeg since 1931, and who had recently retired as Associate Professor of Medicine in the University of Manitoba, gave the following opinion about the mental condition of the accused at the time of the killing:

... I formed the opinion that on the 27th day of September 1962 he was suffering from an abnormal state of mind, which is referred to as a depressive psychosis, in which the symptoms are severe depression, hopelessness, inability to sleep, loss of appetite, loss of weight, and impairment of volition—that is to say, impairment of ability to decide even inconsequential things, inability to make up a decision in a normal kind of a way. In this state, a person is so hopeless, their feelings are so hopeless, that their judgment becomes distorted, and their thinking confused.

Dr. Ian Blake Thomson, Assistant Medical Superintendent of the Psychiatric Institute in Winnipeg and a lecturer in psychiatry at the University of Manitoba, expressed [a similar opinion.]

This is very important and highly relevant evidence given by men of eminence in their profession. The learned trial judge instead of leaving it to the jury for the consideration to which it was entitled, quoted from Phipson on Evidence, Taylor on Evidence and Lord Campbell, to the effect that the testimony of experts is of slight weight….

[A]s generalizations, these statements are bad. They could, moreover, have no possible application to the evidence given in this case. [T]he probable result of this unwarranted disparagement of their evidence was its withdrawal from the jury's serious consideration. On a charge of capital murder, based on an allegation that the killing was planned and deliberate, it was virtually a withdrawal of the whole defence….

I would allow the appeal, quash the conviction of capital murder and direct a new trial.

CARTWRIGHT J. (with whom ABBOTT, HALL, JUDSON and RITCHIE JJ. concurred):—         
…. In the circumstances of this case, the defence of insanity having been expressly disclaimed, there were really only two questions for the jury. The first was whether the appellant meant to cause the death of his wife; if this was answered in the affirmative he was guilty of murder. The second, which arises under s. 202A(2) (a) [enacted 1960-61, c. 44, s. 1] of the Criminal Code, 1953-54 (Can.), c. 51, was whether this murder was planned and deliberate on his part; if this was answered in the affirmative he was guilty of capital murder.

The evidence that the murder was planned was very strong, but, as was properly pointed out to the jury by the learned trial Judge, they could not find the accused guilty of capital murder unless they were satisfied beyond a reasonable doubt not only that the murder was planned but also that it was deliberate. The learned trial Judge also rightly instructed the jury that the word “deliberate,” as used in s. 202A(2) (a), means “considered, not impulsive.”

Other meanings of the adjective given in the Oxford Dictionary are “not hasty in decision,” “slow in deciding” and “intentional.” The word as used in the subsection cannot have simply the meaning “intentional” because it is only if the accused’s act was intentional that he can be guilty of murder and the subsection is creating an additional ingredient to be proved as a condition of an accused being convicted of capital murder.

The recital of the facts and the evidence of the appellant as to what occurred at the moment of the discharge of the rifle, set out in the reasons of my brother Judson, show that it was open to the jury to take the view that the act of the appellant in pulling the trigger was impulsive rather than considered and therefore was not deliberate. The evidence of the two doctors and particularly that of Dr. Adamson, also quoted by my brother Judson, that, in his opinion, at the critical moment the appellant was suffering from a depressive psychosis resulting in “impairment of ability to decide even inconsequential things, inability to make a decision in a normal kind of a way” would have a direct bearing on the question whether the appellant’s act was deliberate in the sense defined above; its weight was a matter for the jury.

I wish to emphasize that all that I have said above is related to the peculiar facts of this particular case.

…. The evidence of the two doctors is not relied on by the defence as raising the question whether the accused was legally sane. Its importance is that it would assist the jury in deciding the question whether the accused’s action in pulling the trigger, which so far as this branch of the matter is concerned was admittedly the intentional act of a sane man, was also his deliberate act. This question is one of fact and its solution involves an inquiry as to the thinking of the accused at the moment of acting. If the jury accepted the evidence of the doctors it, in conjunction with the accused’s own evidence, might well cause them to regard it as more probable that the accused’s final act was prompted by sudden impulse rather than by consideration. On this question the accused was entitled to have the verdict of a properly instructed jury...

FAUTEUX J. dissenting (with whom TASCHEREAU C.J.C. concurred):— …The policy of the law [with respect to mental irresponsibility] is not stated in s. 202A(2) (a) but in s. 16, Cr. Code, which appearing in Part I of the Code isall-embracing with respect to the question of insanity in criminal matters. Of course it is for the prosecution to show and for the jury to say whether it is shown by the evidence that the offence charged is intended, planned and deliberate. The mental capacity to commit this as well as any other offence is another matter altogether. For it is a matter of defence to displace the presumption created in the imperative terms of s. 16(4), Cr. Code- “Every one shall, until the contrary is proved, be presumed to be and to have been sane.” This presumption can not be displaced by factual or opinion evidence unless such evidence meets the test of legal irresponsibility set forth in s. 16(2), (3). The factual and opinion evidence in this case does not show that the ability of the appellant to think, reason and decide was abolished, but impaired. The evidence does not meet the legal test; on the contrary Dr. Adamson affirms that the accused was capable of appreciating his unlawful acts and added that he could not convince himself that the accused did not know the difference between right and wrong at the time of the offence.

Acceptance of appellant’s submission that mental defect or disease not sufficient to render an accused legally irresponsible under s. 16, Cr. Code, may nevertheless operate to reduce the degree of the crime charged is tantamount to introducing in the Canadian law a new and secondary test of legal irresponsibility as was done in England, prior to the enactment of the provisions of s. 202A(2) (a), by the Homicide Act, 1957 (U.K.), c.11, of which s. 2(1) and (2) read:

2.(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

2.(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.”

Undoubtedly aware of these provisions, the Canadian Parliament deliberately refused to adopt them. If the appellant’s submission is accepted, it follows that the Canadian Parliament has adopted rather obliquely a policy more generous than that of the English law. Contrary to what is the case in England, the prosecution in Canada would further have the burden of proving, as a constitutive element of the offence of capital murder, not only that the accused is mentally sane within the meaning of s. 16, but also that his mental responsibility is not affected to a lesser degree for which no legal standard is given. Again on appellant’s submission there are two different tests of legal irresponsibility with respect to the offence of capital murder. The first being with respect to intent is defined in s. 16; the other being with respect to planning and deliberation is left to the arbitrament of the jury to define in each case. I am unable to read the section as implying such substantial innovations and changes in our criminal law.

In the United States, the tests of irresponsibility of the various jurisdictions, in cases involving insanity as a defence to crime, are reviewed in Weihofen, Mental Disorder as a Criminal Defense, 1954, pp. 129 et seq. In most of the jurisdictions, it appears that where the law of the State includes specific intent, deliberation or premeditation as constitutive elements of a murder of first degree, it is held that insanity, not sufficient to require an acquittal, may not be shown to negative intent, deliberation or premeditation, and so reduce the crime to murder in second degree.

There is a presumption against implicit alteration of the law and one of these is that the Legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares. It is in the last degree improbable that the Legislature would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness. (Maxwell on Interpretation of Statutes, 9th ed., pp. 85 et seq.) In my view, the language of the enactment - which on the above meaning of the words “planned and deliberate” is truly related to a time element - is inapt to justify such a departure from the system of our criminal law as is contended for by appellant.

On that view of the law, impairment of mental capacity short of insanity was not a defence to the crime charged. It follows that there was no substantial wrong or miscarriage of justice resulting from the direction given by the trial Judge as to the weight of the expert medical evidence. For while relevant to a defence of insanity - to negative intent or that the murder was planned and deliberate - in this particular case the evidence adduced was admittedly short of showing insanity to the degree required by law to relieve from legal responsibility. And, again, insanity as a defence was specifically disclaimed. To the extent that it could be relevant to the consideration of a recommendation that the accused should be granted clemency, there was no prejudice, for such a recommendation was made.

I would dismiss the appeal.

 

R. v. Wright
Alberta Supreme Court, Appellate Division
[1979] 48 C.C.C. (2d) 334

PROWSE, J.A.:— The accused appeals against his conviction for second degree murder. …
Before considering whether the evidence raised an issue of manslaughter in the sense set out above I wish to consider the submission that if the defence of insanity failed, the jury should have been instructed that evidence that related solely to the accused’s mental capacity should be considered by them on the issue whether the accused formed the requisite intent. Among other decisions the appellant relied on was the decision of the Quebec Court of Appeal in R. v. Lechasseur (1977), 38 C.C.C. (2d) 319, 1 C.R. (3d) 190, where Casey, J., stated at p. 320:

In More v. The Queen, [1963] 3 C.C.C. 289, 41 D.L.R. (2d) 380, [1963] S.C.R. 522, Cartwright, J., said [at pp. 291-2]:

“The evidence of the two doctors is not relied on by the defence as raising the question whether the accused was legally sane. Its importance is that it would assist the jury in deciding the question whether the accused’s action in pulling the trigger, which so far as this branch of the matter is concerned was admittedly the intentional act of a sane man, was also his deliberate act. This question is one of fact and its solution involves an inquiry as to the thinking of the accused at the moment of acting. If the jury accepted the evidence of the doctors it, in conjunction with the accused’s own evidence, might well cause them to regard it as more probable that the accused’s final act was prompted by sudden impulse rather than by consideration. On this question the accused was entitled to have the verdict of a properly instructed jury.”

(See also R. v. Browning (1976), 34 C.C.C. (2d) 200, and R. v. Hilton (1977), 34 C.C.C. (2d) 206.) This supports the proposition that evidence that falls short of what is required to establish the defence of insanity may still be sufficiently strong to create a reasonable doubt as to the capacity of the accused to formulate the specific intent that the law requires.

… The appellant’s submission is that evidence related solely to the issue of insanity, which was not sufficient to establish insanity on a balance of probabilities, may create a reasonable doubt in the minds of jurors as to the accused’s mental capacity to form the requisite intent. The jury, he says, is entitled to give effect to such doubt and bring in a verdict of manslaughter.

In my view, this is not the law and the above cases do not support the broad proposition urged by the appellant. I am of the opinion that a trial Judge should not invite or direct a jury to treat as relevant on the issue of intent evidence adduced on the issue of insanity that related solely to the accused’s capacity to form the requisite intent. Such a direction would in effect be inviting the jury to give effect to any reasonable doubt they had of the accused’s mental capacity and would be tantamount to empowering the jury to ignore s. 16 of the Code which places the onus of establishing lack of capacity on the accused. It will be noted that Viscount Sankey in his classic statement dealing with onus excepted “the defence of insanity”. In my view when the defence of insanity is put forward, considered by the jury and rejected, the same defence may not be advanced merely by placing it before the jury in different words in relation to the issue of intent.

A similar question was considered by the House of Lords in Bratty v. A.-G. Northern Ireland (1961), 46 Cr. App. R. 1. …
In my view, in the absence of a finding of insanity, lack of intent cannot be based on a lack of mental capacity to form the requisite intent. For example, if the accused caused the death of a person by discharging a gun and the jury ruled out the defence of insanity, the jury would still have to consider whether the accused did the act with the requisite intent. If the Crown adduced evidence from which a jury could infer and did infer that the firing of the gun was accompanied by the requisite intent, the accused could not meet that case by raising a reasonable doubt about his mental capacity to form the requisite intent. He could, however, point to other evidence that raised a doubt as to whether he had the requisite intent.

If the defence put forward were insanity caused by drunkenness, and the trier of fact rejected that defence, then the evidence of drunkenness adduced on the issue of insanity would be relevant in so far as it related to his intent at the material time. It is not drunkenness that constitutes the defence but rather lack of intent or a reasonable doubt that the accused had the requisite intent. What is referred to as drunkenness does not raise an issue as to the accused’s mental capacity to form the requisite intent in the same sense as the test set out in s. 16 is applied to determine his capacity. The issue raised by such a defence is whether the accused had the requisite intent at the material time. I would refer to the statement of Gregory Lane, L.J., in R. v. Sheehan; R. v. Moore, [1975] 2 All E.R. 960 at p. 964:

Indeed, in cases where drunkenness and its possible effect on the defendant’s mens rea is an issue, we think that the proper direction to a jury is, first, to warn them that the mere fact that the defendant’s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent.

Secondly, and subject to this, the jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent.

This is not to say that evidence which is relevant to the issue of insanity may not be relevant to other issues which arise in the trial. Evidence that is adduced on the issue of insanity may be relevant on the issue of intent, not for the purpose of showing that the accused did not have the capacity to form the intent but for the limited purpose of showing he did not in fact form the requisite intent. For example, if on the issue of insanity evidence was adduced of the accused’s lack of motor control as evidence of insanity and the defence of insanity was rejected by the jury, then, if in relation to the issue of intent a question arose as to whether the firing of the gun was accidental, the evidence of lack of motor control would be admissible on that issue. Likewise, if a defence of insanity failed, evidence of brain injury that affected the accused’s eyesight would be relevant on the issue of whether the accused had the requisite intent or believed he was shooting a moose. In neither case, would such evidence be admissible to support a reasonable doubt based on lack of capacity to form the requisite intent but solely on the issue of intent at the material time.

* * *

MPC §§ 4.02, 210.3(1)(b)

* * *

StGB § 21

            e. Irresistible Impulse

 

R. v. Borg
Supreme Court of Canada
[1969] 4 C.C.C. 262; [1969] S.C.R. 551

CARTWRIGHT, C.J.C.:— This is an appeal, brought pursuant to s. 598(1)(a) [rep. & sub. 1960-61, c.44, s.12] of the Criminal Code, from a judgment of the Supreme Court of Alberta, Appellate Division, pronounced on October 31, 1968, setting aside a verdict of guilty of capital murder and directing a new trial. Allen, J.A., dissenting, would have dismissed the appeal.

The respondent was tried before Milvain, J., as he then was, and a jury. The verdict was rendered on April 11, 1968. The respondent was sentenced to death.

There is no dispute as to the facts surrounding the actual killing.

On June 23, 1967, as a result of a telephone call made at 2:40 p.m. to the detachment office of the Royal Canadian Mounted Police at Grande Prairie, Alberta, Corporal Harvey and Corporal Biggar drove from the detachment office to a residence known as 1006 103rd St., in an area of the City of Grande Prairie described as Bear Creek Flats. Both were dressed in the uniform of the R.C.M.P. They inquired at that address as to the location of the residence of Leonard Otto Borg and Harvey Lambert, an occupant of the house, came out to show them where Borg lived. Borg lived in an apartment above a double garage to the rear and slightly to one side of the residence mentioned. Lambert, Corporal Biggar and Corporal Harvey walked past the front of that residence and turned into a driveway leading to Borg’s apartment. They had walked about 12 ft. along the driveway towards Borg’s residence when a head appeared at an open window near the south-east corner of the apartment and a shot was heard. Corporal Harvey clutched the upper part of his body and fell to the ground. Corporal Biggar drew his revolver, fired one shot into the ground, then obtained some assistance and moved Harvey out of the line of fire. Harvey was mortally wounded and died in a short time, undoubtedly as a result of the wound caused by the bullet fired through the open window.

When Corporal Biggar fired into the ground the head in the window disappeared. A very short time later Corporal Biggar saw what he believed to be the same head appear at the same open window and he fired his revolver towards the head. He saw “ the head come up and appear to fall back” . Corporal Biggar radioed to the detachment office for assistance. He could then see no movement in the house and he fired another shot into the ground immediately in front of him. He then heard a voice coming from inside the building “If I throw my gun out you won’t shoot, will you?” Corporal Biggar said he would not and told the man to stand up where he could see him. A hand with a rifle came over the window-sill and the rifle dropped to the ground. The man inside said there was no door on the front and that the corporal would have to go to the back. The corporal went to the back and told the man to come out with his hands up; the man, who was Borg, did so and was placed under arrest; he was found to have been shot and slightly wounded in one ear.

Following a voir dire, the learned trial Judge admitted in evidence portions of a statement written and signed by the respondent and two questions out of several asked of him by Corporal Dillabaugh and his answers thereto.

These are as follows:

“I then slept till 9 a.m. Went down town and bought cil .22 for $19.80 and one box of .22 long. I came back home and made a phone call to the RCMP. I didn’t give them . . .
[Here a sentence is omitted.]

I later went up town at I am and had one drink of Vodka strate and one ry and water I came home about 230 am and made a phone call to the RCMP telling them where I lived When the police arrived I shot one in the chest some ware around the heart, at least thats where I was aiming shortly after that the second police man shot at me hitting me in the left ear it knocked me to the floor I then thought whats the use. I caused enough grief in my life. I then gave myself up.”
(It is obvious, and was agreed by counsel, that “1 am” and “230 am” should have read “1 p.m.” and “2:30 p.m.”)

The questions and answers were as follows:

“Que. When you made the phone call to the R.C.M. Police & told them who you were & where they might find you, did you at that time plan to kill a policeman when he came to see you?
“Ans. I planned to kill a policeman before that, before I ever went up town to buy the gun.
“Que. Just when did you first plan to kill a policeman?
“Ans. My plan to kill a policeman first came into my mind while I was doing 3 years in the B.C. pen for something I didn’t do.”

…In the course of his reasons the learned Chief Justice of Alberta, who delivered the judgment of the majority of the Appellate Division, after summarizing the facts surrounding the shooting of Corporal Harvey, said that it was established beyond any room for doubt (i) that the shooting was the act of the respondent and (ii) that his act amounted to capital murder and consequently that the only defence open to the respondent was that of insanity under s. 16 of the Criminal Code. I agree with this statement; it is supported by conclusive and uncontradicted evidence.

The only issue discussed before us and the only one of any substance in this case is that regarding the defence of insanity.

The ground on which the majority of the Appellate Division allowed the appeal is summarized in the formal judgment as follows:

“AND UPON this Honourable Court finding that the learned trial Judge failed to review the substantial parts of the evidence of Mrs. Hartman and Dr. Spaner and to instruct the jury as to how the law was to be applied to the facts as they found them and thereby misdirected the jury by such non-direction.”

The only evidence at the trial called by the defence was that of Mrs. Hartman, a sister of the accused, and Dr. Spaner, a medical practitioner specializing in psychiatry whose qualifications were not questioned. Their evidence related entirely to the defence of insanity.

The Crown called no evidence in reply.

The evidence of Mrs. Hartman is sufficiently summarized by Bruce Smith, C.J.A., as follows [[1969] 2 C.C.C. 114 at pp. 118-9, 5 C.R.N.S. 222, 66 W.W.R. 385]:

“Mrs. Hartman gave a very detailed description of her and the appellant’s life at home as children. She said he had been persecuted, beaten and abused by his father and unnecessarily mistreated in many ways; that he had been shown no affection by his father; that he would be given conflicting instructions by his father and then brutally punished because he did not properly carry out the instructions; that his father cheated him out of a trap line when he became older. She said that on one occasion, after he had left home, he returned and was very mixed up and acting strangely. She said that he was ‘sitting there sharpening a knife and looking at me’ and that she was afraid and got an iron and a knife with which to protect herself. On another occasion, at the time of Mrs. Hartman’s wedding, the appellant did not remember where he had been for five days. She said his only association was with Metis women, not white girls, and that he did not feel good enough for white girls.”

Dr. Spaner interviewed the accused at Fort Saskatchewan gaol on April 2, 1968, that is six days before the commencement of the trial and a little over nine months after the killing of Corporal Harvey. The interview lasted between two and one-half to three hours. Dr. Spaner heard the evidence of Mrs. Hartman and the portions of the accused’s statement and answers that were read to the jury. It was from these materials that he formed his opinion.

As was pointed out by Bruce Smith, C.J.A., Dr. Spaner nowhere in his evidence expressed the opinion in so many words, that the accused at the time he shot Corporal Harvey did not know that what he was doing was contrary to law or that he was incapable of appreciating the nature and quality of his act. The learned Chief Justice was, however, of the view that either of these conclusions could be founded on Dr. Spaner’s evidence if accepted. With the greatest respect I cannot agree with this.

It appears to me that if the view of Dr. Spaner’s evidence most favourable to the accused were taken by the jury it could be said to show, (i) that Borg was suffering from a disease of the mind called a psychopathic state and that he fitted into the classification of the aggressive, anti-social, impulse-ridden type of personality, (ii) that he had very few healthy coping mechanisms or ways of defending himself against impulses such as homicidal or sexual ones, (iii) that this lack of impulse control is chronic, (iv) that a major characteristic of this impulse type of personality is being emotionally unbalanced by the illness, that the moral issues cannot be differentiated, that he does not have the moral ethical part of his mind functioning most of his life but “most important of all he can have normal functioning—that is the knowing part of his mind functioning”, (v) that the impulse is so powerful his judgment is impaired but he can still have intellectual functioning, (vi) that the effect of alcohol is unpredictable, it can wipe away any controls or it might even calm him; it is impossible to say, (vii) that Borg hates authoritarian figures and under the influence of his anti-social impulse driven, aggressive impulses, he can kill, (viii) that if the force of the impulse cannot be resisted “at that moment”, and this is a symptom of what he suffers from— an impulse — psychotic state — an irresistible impulse when he neither reasons nor deliberates, (ix) that the irresistible impulse is both a symptom of the disease of the mind and the disease itself, (x) that he operates sometimes with normal intellect, sometimes with a little better than normal intellect and sometimes like a little boy.

An important answer made by Dr. Spaner in the course of his cross-examination was as follows:

“Que. You are unable to say with any degree of accuracy whether or not the drink of rye—the drink of vodka straight and the rye and water, aggravated any — what— first of all I would gather you are unable to say what particular emotional condition he was in at the time.
“Ans. No, I just thought he—that the circumstances that were going on, that it was quite possible that he was anxiety ridden, panic stricken, under the influence of some catastrophic disorganization.” …

It appears to me that the effect of Dr. Spaner’s evidence is that, in his opinion, at the time of the shooting Borg may have been acting under an irresistible impulse such as the doctor had described. There is no evidence that Borg himself had that view and the portions of his statement and of his answers read to the jury far from suggesting anything in the nature of an impulsive action indicate a careful and deliberate plan which it took him some hours to carry out. The actions and statements of Borg after the shooting indicate that he was well aware of what he had done and that it was wrong. The evidence taken as a whole falls far short of being sufficient to satisfy the onus of proof on the balance of probabilities which rests on the defence when insanity is alleged. The only evidence given on the last day of the trial was that of Mrs. Hartman followed by that of Dr. Spaner. It would be fresh in the minds of the jury when they heard the Judge’s charge. That charge in so far as it dealt with the law regarding insanity was clear and correct. The learned trial Judge did not analyse or summarize the evidence of Mrs. Hartman or that of Dr. Spaner but he did say:

“Now in this case I suggest that you can bear in mind as you weigh the entire evidence in this regard, many things: you bear in mind, of course, the evidence that was given by the accused’s sister of his background and life; you bear in mind what we have learned of the man through the statements, or, to the extent that the statement is before you, and we bear in mind the evidence that was given by Dr. Spaner. All of those things together form the evidence that you consider.…

“You weigh in your minds the whole of the evidence that you have heard because it is your province and your province alone to conclude whether or not, on a balance of probabilities, the accused has satisfied you that he was insane within the meaning of the Act that I read you, and if he has done so, of course, your verdict then would be not guilty but insane.

“It would seem to me, gentlemen, in viewing the whole of this case, when you retire to consider your verdict, there are three possible verdicts within the law. One verdict could, of course, be guilty as charged; he could be found not guilty at all, or he could be found not guilty because of insanity. Those appear to me to be the only three possible verdicts.”

It is not surprising that the learned and experienced counsel for the defence did not request the Judge to give a further charge involving a detailed examination of the doctor’s evidence. Such a request, if acceded to, would have resulted in the Judge having to point out to the jury how far the evidence fell short of indicating that the accused was other than sane at the time of the shooting.

After considering all the evidence that had any relevance to the defence of insanity I am satisfied that, in the particular circumstances of this case, the charge on this branch of the matter, considered as it must be in the light of all the evidence in the record, was sufficient in law and more favourable to the accused than it could have been if the Judge had made a detailed analysis of Dr. Spaner’s evidence before the jury.…

I would allow the appeal, set aside the judgment of the Appellate Division and restore the verdict at the trial.

FAUTEUX, ABBOTT, MARTLAND, JUDSON and RITCHIE, JJ., concur with CARTWRIGHT, C.J.C.

HALL, J. (dissenting):—The facts are fully set out in the reasons of my brother the Chief Justice. The only real defence which was being put forward at the trial on behalf of Borg was that of insanity. The fact of the killing of the police officer was not in dispute. It was admitted in Borg’s confession and proved conclusively by the verbal testimony and that fact was recognized in the reasons of the learned Chief Justice of Alberta.

With deference to contrary opinion, I would dismiss the appeal. As I see it, the learned trial Judge misdirected the jury on the defence of insanity in that he failed to instruct them that there was evidence that Borg was suffering from a disease of the mind, and while an irresistible impulse was not of itself a defence the evidence that the irresistible impulse was a manifestation of a disease of the mind was evidence to be considered by them in the light of Dr. Spaner’s testimony.…

The learned trial Judge’s statement: “Now, I must tell you that at law a so called irresistible or uncontrollable impulse of itself is not a defence within the meaning of this Act unless that uncontrollable or irresistible movement or impulse stems from the existence of insanity as defined here . . .” although an accurate statement of the law, was misleading in the context of the case. In order for the defence of insanity to be established, the defence must prove on the balance of probabilities two propositions: (1) that the accused was suffering from a disease of the mind; and (2) that the disease rendered the accused incapable of appreciating the nature and quality of the act or of knowing that the act is wrong. When an accused pleads insanity there is a sense in which it is true to say that irresistible impulse of itself is not a defence. However, there are two senses in which it is not true to say that irresistible impulse of itself is not a defence.

There is no legal presumption of insanity merely from the existence of an irresistible impulse. If an accused presents no medical evidence of disease of the mind but merely pleads that he was acting under an irresistible impulse, a jury is not entitled to infer that the man was insane. In that sense irresistible impulse is not of itself a defence. However, if there is medical evidence of disease of the mind as there was here and yet the only symptoms of that disease of the mind are irresistible impulses, the jury may conclude that the accused is insane. This specific point was dealt with by Lord Tucker in A.-G. South Australia v. Brown, [1960] A.C. 432, when, speaking for their Lordships of the Privy Council, he said at pp. 449-50:

“Their Lordships must not, of course, be understood to suggest that in a case where evidence has been given (and it is difficult to imagine a case where such evidence would be other than medical evidence) that irresistible impulse is a symptom of the particular disease of the mind from which a prisoner is said to be suffering and as to its effect on his ability to know the nature and quality of his act or that his act is wrong it would not be the duty of the judge to deal with the matter in the same way as any other relevant evidence given at the trial.”

In that sense irresistible impulse is of itself evidence of a disease of the mind.

The evidence of irresistible impulse is also relevant to the issue of whether the accused is capable of appreciating the nature and quality of the act. It is not so relevant in England. The reason for the difference is that there is a difference between the definition of the defence of insanity in s. 16 of the Canadian Criminal Code and the statement of the defence according to M’Naghten’s Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718. In M’Naghten’s Case the Judges said that a man could not be held to be insane unless he did not know the nature and quality of the act he was doing. Section 16 of the Canadian Criminal Code states that a man cannot be held to be insane unless he did not appreciate the nature and quality of the act he was doing. A man operating under an irresistible impulse l may have knowledge of the nature and quality of his act without appreciating its nature and quality. A man may be aware of an act without foreseeing and measuring its consequences. That is what Dr. Spaner testified to here when he said: “I think I said before, the moral issues of right and wrong are not operating at — when the impulse is at a certain intensity. That part of the mind is not operating. “

Although what the learned trial Judge said as previously quoted was good law, it was irrelevant law in context. There was no question of the jury concluding that Borg was insane simply because there was evidence that he acted under an irresistible impulse because there was medical evidence that Borg was suffering from a disease of the mind, and in failing to point out to the jury that the theory of the defence was that Borg had a disease of the mind and that the irresistible impulse was the manifestation of that disease, he failed to put the theory of the defence adequately to the jury.

The Chief Justice, being of the view that there was no error in law and that no valid exception could be taken to the charge of the learned trial Judge to the jury, saw no need to invoke s. 592(1)(b)(iii) {now s. 686(1)(b)(iii)} of the Criminal Code which authorizes that even when there has been an error in law at the trial, the Court of Appeal has the power (and this Court has the same power) to dismiss the appeal if, notwithstanding that a ground of appeal may be decided in favour of the appellant, it is of opinion that no substantial wrong or miscarriage of justice has occurred. Having come to the conclusion that there was in this case an error in law, I should consider the provisions of that section. I am of opinion that the section should not be invoked here. I agree with Spence, J., in Colpitts v. The Queen, [1966] 1 C.C.C. 146 at p.161, 52 D.L.R. (2d) 416 at p.430, [1965] S.C.R. 739, where he said:

“I am of the opinion that this Court cannot place itself in the position of a jury and weigh these various pieces of evidence. If there is any possibility that twelve reasonable men, properly charged, would have a reasonable doubt as to the guilt of the accused, then this Court should not apply the provisions of s. 592(1)(b)(iii) to affirm a conviction.”

… I would, accordingly, dismiss the appeal and confirm the decision of the Appellate Division of the Supreme Court of Alberta granting the appellant a new trial.

SPENCE J. (dissenting), concurs with HALL, J.
PIGEON, J., concurs with CARTWRIGHT, C.J.C.

Appeal allowed; verdict of guilty restored.

            2. Infancy

 

R. v. Sawchuk
Manitoba Court of Appeal
[1991] M.J. No. 362; [1991] 66 C.C.C. (3d) 255

The judgment of the Court was delivered by
HUBAND J.A. (dismissing the Appeal):—In this case a 23-year-old accused person brought an application before Ferg J. of the Court of Queen's Bench asking that he be declared immune from prosecution on the charges facing him, on the basis that he has limitations, and that his mental age is equivalent to that of a child under the age of 12. Counsel for the accused therefore urges that he be treated as a child for the purposes of criminal prosecution and be granted immunity under s. 13 of the Criminal Code. The accused's application is coupled with a claim that his rights under secs. 12 and 15 of the Charter will be infringed by the proposed prosecution, by his pretrial custody, and by his possible post-trial punishment should he be convicted.

In our opinion, the accused has no reasonable argument based upon an interpretation of s. 13 of the Criminal Code, standing alone. The wording of s. 13 together with the decision of the Supreme Court of Canada in Ogg-Moss v. The Queen (1984), 14 C.C.C. (3d) 116, make it clear that a "child" is to be measured in chronological age rather than in terms of intellectual capacity.

Section 15 of the Charter does not change the matter. It is the provision guaranteeing equality before and under the law without discrimination. That is precisely what this accused will receive. The decision of the Supreme Court in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, makes it clear that s. 15 applies where an individual or a group is singled out for harsh or discriminatory treatment. In this case, there is no discrimination against the accused relative to his personal characteristics.

Section 12 of the Charter deals with cruel and unusual treatment or punishment. It is argued that the accused's pretrial detention in the Winnipeg Remand Centre falls within that description. However, there is an absence of any cogent evidence to indicate that the circumstances of his detention are cruel or unusual. Moreover, the accused has been released on bail on all of the charges which he faced at the time of his appearance before Ferg J., and therefore this argument has become moot.

It would be premature to consider s. 12 in the context of possible punishment after conviction. We do not know whether he will be convicted, nor do we know the kind of sentence that might be imposed upon him.

The appeal is therefore dismissed.

 

R. v. Ogg-Moss
Supreme Court of Canada
[1984] 2 S.C.R. 173

The judgment of the Court was delivered by
DICKSON J.:—This appeal raises the issue of whether a Mental Retardation Counsellor (M.R.C.) who uses physical force on a mentally retarded adult under his supervision has the benefit of s. 43 of the Criminal Code, R.S.C. 1970, c. C-34. Section 43 reads:

43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

The question of the applicability of s. 43 is basically one of statutory construction but inevitably it puts into issue two sensitive topics, namely, the status and rights of mentally retarded persons, and the limits on the disciplinary prerogatives of persons in authority over those in their charge. Despite this overlay of social concerns it is important to remember that the case before this Court is a criminal one and its resolution must be based on legal principles.

I. Background and Facts

Mr. Ogg-Moss was charged with assaulting one Kent Henderson, a twenty-one year old developmentally handicapped resident of the Rideau Regional Centre, located in Smith Falls, Ontario. Mr. Ogg-Moss was employed at the Regional Centre as an M.R.C. He argues that by virtue of this position, his relationship with Mr. Henderson was that of "a person standing in the place of a parent" or of a "schoolteacher" using reasonable force to "correct" a "child" or "pupil" in his charge. He claims therefore the protection of s. 43.

Mental Retardation Counsellors are the "front-line direct care staff" in provincial facilities for the developmentally handicapped. Their duties are set out in Regulations and Directives made pursuant to the Developmental Services Act, R.S.O. 1980, c. 118. These duties include providing daily care for the residents of such facilities and implementing programs designed and supervised by physicians, psychologists and other more senior professional personnel.

On the day in question Mr. Ogg-Moss was supervising a group of residents in a low grade ward. The residents, including Mr. Henderson, were seated at tables awaiting lunch. Mr. Henderson was described in evidence at trial as "very low functioning" and "profoundly retarded" with an I.Q. of less than 20. He was incapable of speech and, as a result of being a "head-banger" suffered from a large haematoma on his forehead. In an apparent attempt to attract Mr. Ogg-Moss's attention, Mr. Henderson spilled his milk on the table before him, whereupon Mr. Ogg-Moss shouted "no" and struck Mr. Henderson five times on the forehead with a large metal spoon for the purpose, according to his later testimony, "of punishing him for what he did".

The incident was reported by a summer student at the Rideau Regional Centre. It was her testimony that Mr. Henderson did not cry out as a result of being struck but appeared "quite startled". She felt that had she been hit with that force she would have cried. In his evidence, in response to a question as to Mr. Henderson's reaction to the blows, Mr. Ogg-Moss replied "Kent can't speak but he gives this guttural sound and he did give a cry when I hit him". Mr. Ogg-Moss stated further that five minutes after being hit with the spoon, Mr. Henderson would be incapable of remembering the incident. He conceded he was aware that it was a contravention of hospital policy to strike residents. Previous to the incident he had certified in writing that he had read and understood Personnel Directive Number M.R. 17 of the Ministry of Social Services which specified that physical force against any resident for any reason whatsoever was strictly forbidden.

Paragraph N of the Directive reads:

Striking of Patients: No patient is to be struck for any reason whatsoever; approved methods of necessary patient restraint specifically exclude striking and any other form of unnecessary aggression. Any employee who strikes, slaps or kicks a patient will be dismissed.

III. The Grounds of Appeal


Although he purports to base his reading of the terms in issue in this appeal on their "natural and ordinary meaning", the appellant's argument is essentially a functional one. He argues that the terms "person in the place of a parent" and "child", on the one hand, and "schoolteacher" and "pupil", on the other, refer to relationships. Consequently, he says, the application of s. 43 ought to be determined primarily on the basis of the nature and quality of the relationship between the "parenting person" and the "child" under his care, or between the "schoolteacher" and his "pupil", rather than on the basis of such factors as the chronological age of the "child" or "pupil".

Mr. Ogg-Moss therefore seeks to support his contention that he was "in the place of a parent" to Mr. Henderson by citing the Province of Ontario Manual of Program Care Standards (September 1976), from which he quotes the following passage:

Direct-care staff shall be responsible for observing, detecting, reporting and managing usual resident illness and behaviour. They shall be trained as surrogate parents to handle such illness and behaviour as are commonly met in the working situation. (emphasis added)

He argues that the functions of an M.R.C. correspond to those of a parent and that, in fact, the M.R.C. is the only "parent" many mentally retarded persons will know. …

On the basis of his contention that an M.R.C. stands in the place of a parent to a mentally retarded person, the appellant argues that the mentally retarded person is a "child" for purposes of s. 43 no matter what his chronological age may be. He contends that this reading of s. 43 is consistent with the ordinary meaning of the word "child", which, as defined by Webster's Dictionary of the English Language, includes a "childlike or childish person". The appellant cites from the decision of Flanigan Co. Ct. J.:

When one looks at the job description that is affixed to the Appellant's Affidavit ... and when one refers to the evidence as to the condition of the victim who has been in this institution for many years, one can come to no other conclusion on any reasonable basis that [sic] the word "child" could not [sic] apply to him. Surely the very services that are applied and that this victim requires are those that we envisage being required by a child of tender years.

Finally, the appellant urges, even if Mr. Henderson was not a "child" within the meaning of s. 43, his relationship to Mr. Ogg-Moss was nevertheless that of a "pupil" to a "schoolteacher". He contends that the job description of a M.R.C. includes teaching "life skills" and that at the time of the incident in question he was teaching Mr. Henderson to eat with a spoon. In the absence of statutory definition, the terms "schoolteacher" and "pupil" should, he submits, be given a liberal interpretation so as to include this sort of instructional activity.

IV. The Purpose and the Effect of S. 43

Mr. Ogg-Moss urges a broad, functional approach to the terms in s. 43. In his submission, the purpose of s. 43 is to protect persons exercising certain parental and instructional functions and therefore its terms ought to be defined so as to further that purpose. I do not doubt that a functional reading is often more appropriate to statutory construction than a slavishly literal one and is often better suited to the attainment of legislative purposes. This appropriateness, however, depends on the accuracy with which the purpose of the enactment is identified.

I note that in the present appeal, there is something circular in the way the appellant identifies the purpose of s. 43. If he is correct, and the terms "in the place of a parent" and "child" or "schoolteacher" and "pupil" ought to be given wide interpretations, then he will also be correct that a particular result, and arguably the purpose, of s. 43 will be to protect persons exercising widely-defined "parental" or "educational" functions. But since the accuracy of this identification of the purpose of s. 43 depends on the accuracy of Mr. Ogg-Moss's "liberal" definitions of its terms, I do not see how it is possible then to turn around and use this purpose to support these very same definitions. It seems clearly true that the purpose of s. 43 and the meaning of its terms are closely intertwined, but the consequence is that neither one can be deduced from an a priori definition of the other. An abstract definition of the hypothetical purpose cannot, therefore, be the proper starting point for a consideration of the meaning of its terms.

A better starting point, in my view, is not the purpose of s. 43 but its effects. While a confident conclusion as to the purpose of s. 43 must await an accurate assessment of the meaning of its terms, the overall effects of that section are clear, no matter how its terms are defined. It exculpates the use of what would otherwise be criminal force by one group of persons against another. It protects the first group of persons, but, it should be noted, at the same time it removes the protection of the criminal law from the second. For the Attorney General of Ontario this latter effect justifies a restrictive reading of s. 43, specifically of the terms "child" and "pupil". It is his submission that:

... the class of persons against whom otherwise criminal force can be employed ought to be restricted, not broadened, and ... any section which authorizes otherwise illegal physical violence should be strictly construed against the actor.

There is much to be said in favour of this submission. As a statement of general principle it accords with our normal assumptions about the purpose and operation of the criminal law. One of the key rights in our society is the individual's right to be free from unconsented invasions on his or her physical security or dignity and it is a central purpose of the criminal law to protect members of society from such invasions. I agree with the Attorney General that any derogation from this right and this protection ought to be strictly construed. Where the effect of such a purported derogation is to deprive a specific individual or group of the equal protection we normally assume is offered by the criminal law, I think it appropriate to view the proffered definition with suspicion and to insist on a demonstration of the logic and rationale of the interpretation.

Finally, on this point, it should be noted that s. 43 is not necessary for the protection of persons using physical force in response to violent or dangerous behaviour or in the course of approved treatment. The former situations are already covered by, inter alia, ss. 34, 35, 37, 38, 39 and 41 of the Criminal Code. The latter are dealt with by provincial legislation such as the Developmental Services Act, supra, and the Mental Health Act, R.S.O. 1980, c. 262, and by regulations promulgated thereunder, as well as by the common law. Section 43 only applies to "correctional" force unrelated to treatment or to the protection of self or others.

V. Is a Mentally Retarded Adult a “Child” for Purposes of S. 43?

Why in law or in policy should the word "child" be given a definition which would make a mentally retarded person over 21 subject to blows which, if directed at a mentally normal 21-year old, would constitute an assault? In my view the proposition that a person in Mr. Henderson's position is a "child", within the meaning of s. 43, is refuted by the history of s. 43 and its common law antecedents and by the very "functional" analysis through which the proposition is articulated.

(a) "Child" in s. 43 and its common law antecedents

Both in common parlance and as a legal concept the term "child" has two primary meanings. One refers to chronological age and is the converse of the term "adult"; the other refers to lineage and is the reciprocal of the term "parent". A child in the first sense was defined at common law as a person under the age of fourteen. This definition may be modified by statutory provision: see, for example, the Child Welfare Act, R.S.O. 1980, c. 66, s. 19(1); the Children's Institutions Act, R.S.O. 1980, c. 67, s. 1(c) and the Children's Residential Services Act, R.S.O. 1980, c. 71, s. 1(b). No statutory modification, however, fixes an age higher than the age of majority which, in Ontario, pursuant to the Age of Majority and Accountability Act, R.S.O. 1980, c. 7, s. 1(1), is 18 years. A child in the second sense was defined at common law as the legitimate offspring of a parent, but in most jurisdictions this definition has been amended by statute to constitute all offspring, whether legitimate or not, as the "children" of their natural or adoptive parents: see, for example, the Children's Law Reform Act, R.S.O. 1980, c. 68, s. 1.

As I have indicated, according to the appellant there is a third meaning for the term "child" which focuses on the "childishness" or "childlike" behaviour of the person to whom it applies. To my knowledge this definition of child has no equivalent as a legal concept, nor—unless it succeed in the current case—has it ever successfully been urged to interpret a statutory provision. Certainly it is not the meaning of the term child in the common law antecedents of s. 43.

Like s. 43, the common law recognized a right of certain persons to use force in the correction of a "child". The "child" referred to was a child in the sense both of chronology and of lineage. This is how Blackstone in his Commentaries on the Laws of England, Book I, chap. 16, described the common law right:

The power of a parent by our English laws is much more moderate [than that of the paterfamilias in Roman law]; but still sufficient to keep the child in order and obedience. He may lawfully correct his child being under age, in a reasonable manner; for this is for the benefit of his education ... He may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in in loco parentis [in the place of a parent], and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed. (Emphasis added.)

I shall have occasion to return to this quote, but the underlined portion clearly indicates that the power to chastise was, at least at common law, the power of a parent (specifically the father) or of his direct delegate, to discipline his offspring until the age of majority. Blackstone is explicit on this point:

The legal power of a father (for a mother, as such, is entitled to no power, but only to reverence and respect) the power of a father, I say, over the persons of his children ceases at the age of twenty one: ...

I have no doubt, therefore, that at common law no chronological adult, no matter how "childish" or "childlike", was subject to corporal correction from his father or his father's delegate. History does not support the appellant's interpretation.

Given the seemingly clear restriction of the common law right of correction to a "child" under the age of majority, it seems highly unlikely that the framers of the Criminal Code used this same word to render a wider class of persons subject to such correction. This impression is reinforced by the fact that when a "child" is referred to elsewhere in the Code either explicitly or by implication, it always refers to a person chronologically younger than the age of majority: see ss. 3, 140, 146, 168(3) and 197. It should also be noted that when the Code does wish to refer to a person with a mental handicap it does so not metaphorically as a "child" or by reference to his purportedly "childlike" or "childish" characteristics, but rather directly, if somewhat bluntly, as a "feeble-minded person" or "an idiot" or "imbecile" or simply "insane". See, for example, ss. 2, 158(2)(b)(ii). Although somewhat disturbing to modern sensibilities the terms "feeble-minded", "idiot" and "imbecile" are, in fact, the legal equivalents to the current concepts of "mentally retarded" or "developmentally handicapped". Had the Criminal Code intended to include mentally retarded adults in the category of person subject to corporal punishment, these are the terms it would have used, not "child".

(b) The "functional" reading of "child"

The foregoing factors of history and statutory construction make the appellant's proposed interpretation highly unlikely. Beyond them, the scepticism which would in any event be the proper judicial response to the appellant's proposed extension of the category of persons the common law made subject to corporal correction is in no way allayed even by his "functional" reading of the term "child". The single basis cited by Mr. Ogg-Moss for his metaphorical reading of the word "child" is the purported correspondence between the dependency on a parenting figure by a severely retarded adult and by a "child". Beyond this single asserted correspondence, there are no submissions that would support a conclusion as to the "childish" or "childlike" nature of mentally retarded persons; nor do I believe that any such arguments could be successfully maintained. Certainly the description in the record of Mr. Henderson's condition affords no support for such an argument. Incapacity for speech, "headbanging" and inability to recall incidents for more than a few minutes are signs of severe physiological affliction. They do not correspond to any recognizable image of childhood. I agree with the Attorney General for Ontario that there is a qualitative difference between "immaturity", "childishness" or "childlike" behaviour and the behaviour of a mentally retarded adult, especially as in the present case, of a severely retarded adult.

A further important consideration is that chronological childhood is a transitory phase, and for a child in the chronological sense the suspension of the criminal law's protection against certain kinds of assault is a temporary phenomenon. For the mentally retarded person the definition of "childhood" proposed by the appellant is a life sentence and the consequent attenuation of his right to dignity and physical security is permanent. I cannot believe that it is the intention of the Criminal Code to create such a category of permanent second-class citizens on the basis of a mental or physical handicap.

If mentally retarded adults are to be considered "children" solely on the basis of their dependency on a "parenting" figure, it is difficult to see how the category of "children" would be limited to the mentally retarded. Essentially the same argument could be made with regard to the functional relationship between sufferers from senility or other cognitive disorder, or perhaps even stroke victims or other invalids, and those who take care of them. If an inability to tend to one's basic needs, or an inability, because of one's mental state, to function unassisted in society, are indices of "childishness", then the category of adults subject to correction is a very broad one indeed. I do not believe that a functional analysis of childlike dependency is appropriate in these latter cases and for similar reasons I cannot accept it with regard to mentally retarded adults.

A mentally retarded adult is not a child in fact, nor for purposes of the law in general, nor for purposes of s. 43 of the Criminal Code in particular.

IX. Conclusion

            In my view the Court of Appeal was correct in each of its conclusions. An M.R.C. is neither a "person standing in the place of a parent" nor "schoolteacher" and a mentally retarded adult under his care, even if "severely" or "profoundly" retarded, is neither a "child" nor a "pupil" within the meaning of s. 43. Section 43 cannot therefore have any application to a case like the present.

I wish to reiterate that this conclusion in no way affects the right of a person in authority to use force to protect himself or others from violent and threatening behaviour. The fact that the person behaving in this violent or threatening manner may be mentally handicapped is irrelevant to this right. My conclusion as to the inapplicability of s. 43 also has no effect on the statutory or common law protection enjoyed by those who apply force in the course of medical treatment for which the proper consent has been obtained.

Appeal dismissed.

* * *

LRCC § 3(4)

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MPC § 4.10

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StGB § 19

 

3. “Insane Automatism”

 

R. v. Quick
Court Of Appeal, Criminal Division
[1973] 3 All E.R. 347

LAWTON L.J. read the following judgment of the court.
In its broadest aspects these appeals raise the question what is meant by the phrase ‘a defect of reason from disease of the mind’ within the meaning of the M’Naghten Rules. More particularly the question is whether a person who commits a criminal act whilst under the effects of hypoglycaemia can raise a defence of automatism, as the appellants submitted was possible, or whether such a person must rely on a defence of insanity if he wishes to relieve himself of responsibility for his acts, as Bridge J ruled.

The appellants were both employed at Farleigh Mental Hospital, Flax Bourton, Somerset, Quick was a charge nurse, Paddison a state enrolled nurse. At the trial it was not disputed that, at about 4 pm on 27th December 1971, one Green, a paraplegic spastic patient, unable to walk, was sitting in Rosemount Ward at the hospital, watching television. Quick was on duty; Paddison had gone off duty at 2 pm but was still present in the ward. Half an hour later, Green had sustained two black eyes, a fractured nose, a split lip which required three stitches, and bruising of his arm and shoulders. There was undisputed medical evidence that these injuries could not have been self-inflicted.

The Crown’s case was that Quick had inflicted the injuries on Green and that Paddison had been present aiding and abetting him, not by actual physical participation, but by encouragement. On arraignment Quick pleaded not guilty. At the close of the evidence, following a ruling by the judge as to the effect in law of the evidence relied on by Quick to support a defence of automatism, he pleaded guilty to count 2 of the indictment. The judge’s ruling was to the effect that this evidence could only be relied on to support a defence of insanity.

The evidence on which the judge ruled came partly from witnesses for the prosecution and partly from Quick’s own evidence and that of a consultant physician, Dr. Cates, who was called on his behalf. The evidence from the Crown’s witnesses included that of one Willerton, a state enrolled nurse who was on duty in Rosemount Ward at the material time. He said that at about 4 pm he had been summoned to the television lounge where he found Green on the floor with injuries to his face and struggling. Quick was sitting astride him. Quick seemed glassy eyed and made no reply when asked what he had done. A patient in the course of his evidence spoke of Quick having collapsed on the floor shortly after he had been involved in the assault on Green. In the course of his own evidence Quick said that he could not remember assaulting Green. He admitted that he had been drinking and that his drinks had included whisky and a quarter of a bottle of rum. He also said that he was, and had been since the age of seven, a diabetic and that that morning he had taken insulin as prescribed by his doctor. After taking the insulin he had had a very small breakfast and no lunch. Dr Cates said that on 12 or more occasions Quick had been admitted to hospital either unconscious or semi-conscious due to hypoglycaemia, which is a condition brought about when there is more insulin in the bloodstream than the amount of sugar there can cope with. When this imbalance occurs, the insulin has much the same effect as an excess of alcohol in the human body. At the onset of the imbalance the higher functions of the mind are affected. As the effects of the imbalance become more marked, more and more mental functions are upset; and unless an antidote is given (and a lump of sugar is an effective one) the sufferer can relapse into coma. In the later stages of mental impairment a sufferer may become aggressive and violent without being able to control himself or without knowing at the time what he was doing or having any recollection afterwards of what he had done. The following answer by Dr Cates sums up his evidence about hypoglycaemia and his opinion whether Quick could have been doing what he was proved to have been doing in the course of a suggested hypoglycaemic reaction:

‘If a patient is going unconscious with a falling blood sugar, for a while he will be aggressive, for a while he will be more than aggressive, for a while he may start being physically violent and then he will be in a semi-conscious state when he could be . . . struggling and resisting people’s efforts to give him sugar. Then he may have a fit, then he may stay deeply unconscious for quite a while. It would sound from the evidence ... that this man developed an increasing effect of a falling blood sugar from some time in the afternoon till when he collapsed after the episode of attack. At least the events fit with that.’

Dr Cates said that on three or four occasions whilst in hospital under treatment for diabetes Quick had behaved violently when his blood sugar had got too low. As is well known insulin is prescribed by doctors in order to ensure that only the requisite amount of sugar is in the patient’s bloodstream; but from time to time the sugar level may get too low. Dr Cates said that there were a number of causes for this. The doctor may have prescribed too much insulin; the patient may have eaten too little or have been over active. He accepted that on the occasion when Green was attacked, Quick’s own conduct that day may well have caused a severe fall in blood sugar.

At the trial and before this court it was accepted by the Crown that the to which we have referred was enough to justify an issue being left to the jury whether Quick could be held responsible for what he had done to Green. If the jury were to accept the evidence relied on by Quick what should the verdict be? Quick’s counsel submitted ‘not guilty’; counsel for the Crown submitted that it should be ‘not guilty by reason of insanity’. The judge ruled in favour of the Crown. As Quick did not want to put forward a defence of insanity, after consulting with his counsel, he pleaded guilty to count 2.

As this plea had been made as a result of the judge’s ruling it was accepted by the Crown before this court that if that ruling was adjudged to be wrong it would not be a bar to an appeal by Quick against his conviction.…

The question which the judge’s ruling raises is one on which it seems that there is no direct English or Commonwealth authority and only a few which bear indirectly on it. We are grateful to counsel for the depth of their researches.

Our examination of such authorities as there are must start with Bratty v. Attorney-General for Northern Ireland, because the judge ruled as he did in reliance on that case. Bratty had been accused of the murder of a young girl. He put forward three defences: first, that at the material time he was in a state of automatism by reason of suffering from an attack of psychomotor epilepsy; secondly, that he was guilty only of manslaughter since he was incapable of forming an intent on the ground that his mental condition was so impaired and confused and he was so deficient in reason that he was not capable of forming such intent; and thirdly, that he was insane. The trial judge left the issue of insanity to the jury (which they rejected) but refused to leave the other two issues. The House of Lords adjudged on the evidence in that case that he had been right to rule as he did; but accepted that automatism as distinct from insanity could be a defence if there was a proper foundation in the evidence for it. In this case, if Quick’s alleged condition could have been caused by hypoglycaemia and that condition, like psychomotor epilepsy, was a disease of the mind, then Bridge J’s ruling was right. The question remains, however, whether a mental condition arising from hypoglycaemia does amount to a disease of the mind. All their Lordships based their speeches on the basis that such medical evidence as there was pointed to Bratty suffering from a ‘defect of reason from disease of the mind’ and nothing else. Lord Denning discussed in general terms what constituted a disease of the mind, when he said:

‘The major mental diseases, which the doctors call psychoses, such as schizophrenia, are clearly diseases of the mind. But in R. v. Charlson, BARRY, J., seems to have assumed that other diseases such as epilepsy or cerebral tumour are not diseases of the mind, even when they are such as to manifest themselves in violence. I do not agree with this. It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal.’

If this opinion is right and there are no restricting qualifications which ought to be applied to it, Quick was setting up a defence of insanity. He may have been at the material time in a condition of mental disorder manifesting itself in violence. Such manifestations had occurred before and might recur. The difficulty arises as soon as the question is asked whether he should be detained in a mental hospital? No mental hospital would admit a diabetic merely because he had a low blood sugar reaction and common sense is affronted by the prospect of a diabetic being sent to such hospital when in most cases the disordered mental condition can be rectified quickly by pushing a lump of sugar or a teaspoonful of glucose into the patient’s mouth.

The ‘affront to common sense’ argument, however, has its own inherent weakness. as counsel for the Crown pointed out. If an accused is shown to have done a criminal act whilst suffering from a ‘defect of reason from disease of the mind’, it matters not ‘whether the disease is curable or incurable . . . temporary or permanent’ (see R. v. Kemp, per Devlin J). If the condition is temporary, the Secretary of State may have a difficult problem of disposal; but what happens to those found not guilty by reason of insanity is not a matter for the courts.

In R. v. Kemp where the violent act was alleged to have been done during a period of unconsciousness arising from arteriosclerosis, counsel for the accused submitted that his client had done what he had during a period of mental confusion arising from a physical, not a mental disease. Devlin J. rejected this argument saying:

‘It does not matter, for the purposes of the law, whether the defect of reasoning is due to a degeneration of the brain or to some other form of mental derangement. That may be a matter of importance medically, but it is of no importance to the law, which merely has to consider the state of mind in which the accused is, not how he got there.’

Applied without qualification of any kind, Devlin J’s statement of the law would have some surprising consequences. Take the not uncommon case of the rugby player who gets a kick on the head early in the game and plays on to the end in a state of automatism. If, whilst he was in that state, he assaulted the referee it is difficult to envisage any court adjudging that he was not guilty by reason of insanity. Another type of case which could occur is that of the dental patient who kicks out whilst coming round from an anaesthetic. The law would be in a defective state if a patient accused of assaulting a dental nurse by kicking her whilst regaining consciousness could only excuse himself by raising the defence of insanity....

In this quagmire of law seldom entered nowadays save by those in desperate need of some kind of a defence, Bratty v. Attorney-General for Northern Ireland provides the only firm ground. Is there any discernible path? We think there is—judges should follow in a common sense way their sense of fairness. This seems to have been the approach of the New Zealand Court of Appeal in R v Cottle and of Sholl J in R v Carter. In our judgment no help can be obtained by speculating (because that is what we would have to do) as to what the judges who answered the House of Lords questions in 1843 meant by disease of the mind, still less what Sir Matthew Halt meant in the second half of the 17th century. A quick backward look at the state of medicine in 1843 will suffice to show how unreal it would be to apply the concepts of that age to the present time. Dr Simpson had not yet started his experiments with chloroform, the future Lord Lister was only 16 and laudanum was used and prescribed like aspirins are today. Our task has been to decide what the law means now by the words ‘disease of the mind’. In our judgment the fundamental concept is of a malfunctioning of the mind caused by disease. A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease. Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility. A self-induced incapacity will not excuse (see R v Lipman) nor will one which could have been reasonably foreseen as a result of either doing, or omitting to do something, as, for example, taking alcohol against medical advice after using certain prescribed drugs, or failing to have regular meals whilst taking insulin. From time to time difficult borderline cases are likely to arise. When they do, the test suggested by the New Zealand Court of Appeal in R v Cottle islikely to give the correct result, viz can this mental condition be fairly regarded as amounting to or producing a defect of reason from disease of the mind?

In this case Quick’s alleged mental condition, if it ever existed, was not caused by his diabetes but by his use of the insulin prescribed by his doctor. Such malfunctioning of his mind as there was, was caused by an external factor and not by a bodily disorder in the nature of a disease which disturbed the working of his mind. It follows in our judgment that Quick was entitled to have his defence of automatism left to the jury and that Bridge J’s ruling as to the effect of the medical evidence called by him was wrong. Had the defence of automatism been left to the jury, a number of questions of fact would have had to be answered. If he was in a confused mental condition, was it due to a hypoglycaemic episode or to too much alcohol? If the former, to what extent had he brought about his condition by not following his doctor’s instructions about taking regular meals? Did he know that he was getting into a hypoglycaemic episode? If Yes, why did he not use the antidote of eating a lump of sugar as he had been advised to do? On the evidence which was before the jury Quick might have had difficulty in answering these questions in a manner which would have relieved him of responsibility for his acts. We cannot say, however, with the requisite degree of confidence, that the jury would have convicted him. It follows that his conviction must be quashed on the ground that the verdict was unsatisfactory.

 

R. v. Rabey
Supreme Court of Canada
[1980] 54 C.C.C. (2d) 1; [1980] 2 S.C.R. 513

RITCHIE J. (MARTLAND, PIGEON and BEETZ JJ. concurring):—This is an appeal from a judgment of the Court of Appeal for Ontario [17 O.R. (2d) 1, 40 C.R.N.S. 46, 37 C.C.C. (2d) 461, 79 D.L.R. (3d) 414] whereby that court set aside the appellant’s acquittal at trial for “causing bodily harm with intent to wound”. The appellant had, at the same time, been charged with having a rock in his possession “for the purpose of committing the offence of wounding” but no appeal was taken from his acquittal on this charge.

The circumstances under which the alleged offences were committed are recounted with accuracy in the reasons for judgment prepared for delivery by my brother Dickson in this case, which I have had the advantage of reading, and also in the judgment delivered by Martin J .A. on behalf of the Court of Appeal for Ontario. An “agreed statement of facts” has also been filed as a part of the record in these proceedings and, when read together with the factual analyses provided by the judges concerned, it becomes plain that there is no dispute as to the behaviour of the appellant on 28th February and 1st March 1974. On the former date he had agreed to help a girlfriend with some work which she was doing for a geology class, of which they were both members, and in the course of the afternoon he had access, while he was alone, to the girl’s notebook, in which he found a letter written to one of her friends disclosing that she considered other members of the opposite sex more exciting and desirable than the appellant, to whom she referred somewhat obliquely as “a nothing”.

It appears to me to be important to note at this stage that it is agreed by para. 5 of the agreed statement of facts that “The appellant had never dated any other girl for any length of time and had only a minimal amount of sexual experience. An introvert, he was infatuated with the attractive, outgoing [girl]”. In any event, the appellant took the letter out of his friend’s notebook and taking it home with him, he appears to have brooded on it during the evening and underlined certain portions.

On the following day (1st March) the appellant had arranged to watch a friend play a game of squash at about noon, and on his way to the squash courts “quite by chance” he met his girlfriend and asked her to join him; when they reached the squash court, however, they entered a gallery from which to view the players, but no one was playing. They started downstairs towards the locker area but on reaching the foot of the stairs the appellant asked the girl what she thought of a mutual friend and, upon her replying that he was ‘‘just a friend”, the appellant asked what she thought of him, and it was when she said that he was a friend too that he hit her on the head with a rock wrapped in cloth which he had brought from the geology laboratory that morning. The next thing the girl knew was that the appellant was kneeling on the floor with his hands around her neck choking her and crying out “You bitch”, “You bitch”.

I have found it necessary to recite the facts in skeletal form in order to illustrate the background against which the defence of non-insane automatism was advanced on behalf of the appellant.

It should be observed also that the appellant was subjected to a number of interviews with psychiatrists, with the result that the courts have found themselves involved in the shadowy area of mental disorders, concerning which it is not surprising to find that there are wide differences in opinion amongst the “experts”. The meaning of the word “automatism”—in any event so far as it is employed in the defence of non-insane automatism—has in my opinion been satisfactorily defined by Lacourciere J. (as he then was) of the Ontario High Court of Justice in the case of R. v. K., [1971] 2 O.R. 401, 3 C.C.C. (. d) 84 at 84:

“Automatism is a term used to describe unconscious, involuntary behaviour, the state of a person who, though capable of action, is not conscious of what he is doing. It means an unconscious, involuntary act, where the mind does not go with what is being done.”

The defence of automatism, as used in the present case, of course involves a consideration of the provisions of s. 16 of the Criminal Code, R.S.C. 1970, c. C-34, which read as follows:

16.(1) No person shall be convicted of an offence in respect of an act or omission on his part while he was insane.
“(2) For the purposes of this section a person is insane when he is in a state of natural imbecility or has disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.
“(3) A person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused him to believe in the existence of a state of things that, if it existed, would have justified or excused his act or omission.
“(4) Every one shall, until the contrary is proved, be presumed to be and to have been sane.”

What is said here is that at the relevant time the appellant was in a state where, though capable of action, he was not conscious of what he was doing, and more particularly that he was not suffering from a disease of the mind and was therefore not insane. The central question in deciding any case involving the defence of automatism is whether or not the accused was suffering from a disease of the mind. The opinions of psychiatrists go no further than characterizing the condition in which the appellant was found as being “a dissociative state”, but it is clear, at least since the case of Bratty v. A.G. Northern Ireland, [19631 A.C. 386, 46 Cr. App. R. 1, [1961] 3 All E.R. 523 (H.L.), that the question of whether or not such a state amounts to “a disease of the mind” is a question of law for the judge to determine. The general rule is that it is for the judge as a question of law to decide what constitutes a “disease of the mind”, but that the question of whether or not the facts in a given case disclose the existence of such a disease is a question to be determined by the trier of fact. 1 think it would be superfluous for me to retrace the line of authorities in this area, as they have been so exhaustively discussed by my brother Dickson and also by Martin J.A. of the Court of Appeal and by the learned trial judge. I am satisfied in this regard to adopt the following passages from the reasons for judgment of Martin J.A. at pp. 62-63:

“In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, having its source in his psychological or emotional makeup, or in some organic pathology, as opposed to a malfunctioning of the mind, which is the transient effect produced by some specific external factor such as, for example, concussion. Any malfunctioning of the mind or mental disorder having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not) may be a ‘disease of the mind’ if it prevents the accused from knowing what he is doing, but transient disturbances of consciousness due to certain specific external factors do not fall within the concept of disease of the mind. (For an interesting and helpful discussion see ‘The Concept of Mental Disease In Criminal Law Insanity Tests’ 33 University of Chicago L. Rev. 229, by Herbert Fingarette.) Particular transient mental disturbances may not, however, be capable of being properly categorized in relation to whether they constitute ‘disease of the mind’ on the basis of a generalized statement and must be decided on a case-by-case basis.”

The same learned judge later stated in the same judgment at p.68:

“In my view, the ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a ‘disease of the mind’. To hold otherwise would deprive the concept of an external factor of any real meaning. In my view, the emotional stress suffered by the respondent as a result of his disappointment with respect to Miss X cannot be said to be an external factor producing the automatism within the authorities, and the dissociative state must be considered as having its source primarily in the respondent’s psychological or emotional makeup. I conclude, therefore, that, in the circumstances of this case, the dissociative state in which the respondent was said to be constituted a ‘disease v of the mind’. 1 leave aside, until it becomes necessary to decide them, cases where a dissociative state has resulted from emotional shock without physical injury, resulting from such causes, for example, as being involved in a serious accident although no physical injury has resulted; being the victim of a murderous attack with an uplifted knife, notwithstanding that the victim has managed to escape physical injury; seeing a loved one murdered or seriously assaulted, and like situations. Such extraordinary external events might reasonably be presumed to affect the average normal person without reference to the subjective makeup of the person exposed to such experience.

“For the above reasons I am of the opinion, with deference, that the learned trial judge erred in holding that the so-called ‘psychological blow’, which was said to have caused the dissociative state, was, in the circumstances of this case, an externally originating cause, and she should have held that if the respondent was in a dissociative state at the time he struck Miss X he suffered from ‘disease of the mind’. A new trial must, accordingly, be had on count 2.”

In my view a possible key to the cause of the malfunctioning of the appellant’s mind at the time of the alleged assault is to be found in para. 5 of the agreed statement of facts, to which I have already referred, and where it is said of him:

“5. The Appellant had never dated any other girl for any length of time, and had only a minimal amount of sexual experience. An introvert, he was infatuated with the attractive, outgoing…

It seems to me that his infatuation with this young woman had created an abnormal condition in his mind, under the influence of which he acted unnaturally and violently to an imagined slight to which a normal person would not have reacted in the same manner.

It was contended on behalf of the appellant that a finding of disease of the mind and consequently of insanity in the present case would involve gross unfairness to the appellant, who could be subject to the provisions of s. 545 [re-en. 1972, c. 13, s. 45; am. 1974-75-76, c. 93, s. 69] of the Criminal Code and thus detained at the pleasure of the Lieutenant-Governor of the province. That such a result does not carry with it the hardship contended for is illustrated by the following passage from the reasons for judgment of Martin J.A. at p. 69:

“It would, of course, be unthinkable that a person found not guilty on account of insanity because of a transient mental disorder constituting a disease of the mind, who was not dangerous and who required no further treatment, should continue to be confined. The present provisions of s. 545(1)(b) [re-en. 1972, c. 13, s. 45], however, authorize the Lieutenant-Governor to make an order if, in his opinion, it would be in the best interest of the accused and not contrary to the interest of the public for the discharge of a person found not guilty on account of insanity, either absolutely or subject to such conditions as he prescribes. In addition to the periodic reviews required to be made by a board of review appointed pursuant to s. 547(1) of the Code, the Lieutenant Governor under s. 547(6) of the Code may request the board of review to review the case of any person found not guilty on account of insanity, in which case the board of review is required to report forthwith whether such person has recovered and, if so whether in its opinion it is in the interest of the public and of that person for the Lieutenant-Governor to order that he be discharged absolutely or subject to such conditions as the Lieutenant-Governor may prescribe.”

For all these reasons, as well as for those expressed by Martin J.A. in the Court of Appeal for Ontario, I would dismiss the appeal and dispose of the matter in the manner proposed by him.

DICKSON J. (dissenting) (ESTEY and MCINTYRE JJ. concurring):—The automatism ‘‘defence” has come into considerable prominence in recent years. Although the word “automatism” made its way but lately to the legal state, it is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question. Although 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 issue in this appeal is whether automatism resulting from a “psychological blow” is available to an accused in answer to a charge of causing bodily harm with intent to wound. The appellant, Wayne Kenneth Rabey, suddenly and without warning assaulted a fellow student and friend, causing her injury. The theory of the defence was that his behaviour was caused by a psychological blow, an intense emotional shock which induced a “dissociative state”, during which, for a time, the appellant was neither conscious of nor able to control his conduct, so that it was involuntary. This is sometimes spoken of as non-insane automatism, to distinguish it from cases in which the state of automatism is attributable to disease of the mind.

At common law a person who engaged in what would otherwise have been criminal conduct was not guilty of a crime if he did so in a state of unconsciousness or semi-consciousness. Nor was he responsible if he was, by reason of disease of the mind or defect of reason, unable to appreciate the nature and quality of an act or that its commission was wrong. The fundamental precept of our criminal law is that a man is responsible only for his conscious, intentional acts. Devlin J. summed up the position in R. v. Kemp, [1957] 1 Q.B. 399, [1956] 40 Cr. App. R. 121, [1956] 3 All E.R. 249 at 251:

“In the eyes of the common law if a man is not responsible for his actions he is entitled to be acquitted by the ordinary form of acquittal, and it matters not whether his lack of responsibility was due to insanity or to any other cause.”

In order to protect the public from the dangerous criminally insane the common law was changed by statute, long ago. By the Criminal Lunatics Act, 1800 (39 & 40 Geo. 3), c. 94, and the Trial of Lunatics Act, 1883 (46 & 47 Vict.), c. 38, and in Canada by the Criminal Code, [now] R.S.C. 1970, c. C-34, a verdict of not guilty by reason of insanity results in committal to an institution. The purpose of the qualified verdict of acquittal is, of course, to ensure custody and treatment for those who might pose a continuing threat to society by reason of mental illness. In Canada, an accused who is acquitted on the ground of insanity is kept in strict custody in the place and in the manner that the court directs, until the pleasure of the Lieutenant-Governor of the province is known [s. 542(2) of the Code].

The term “automatism” first appeared in the cases and in the periodical literature about 30 years ago. It is seen with increasing frequency. The defence of automatism is successfully invoked in circumstances of a criminal act committed unconsciously, and, in the past, has generally covered acts done while sleepwalking or under concussional states following head injuries.

The defence of automatism is, in some respects, akin to that of insanity. In both instances, the issue is whether an accused had sufficient control over or knowledge of his criminal act to be held culpable. The two defences are, however, separate and distinct. As Professor J. Ll. J. Edwards observed in “Automatism and Criminal Responsibility” (1958), 21 Mod. L. Rev. 375 at 384:

“Both circumstances are concerned to prove mental irresponsibility, the essential difference . . . being that in the case of insanity the defect of the understanding must originate in a disease of the mind, whereas in the defence of automatism simpliciter the criminal law is not concerned with any question of the disease of the mind.”

Although separate, the relationship between the two defences cannot be discounted. Automatism may be subsumed in the defence of insanity in cases in which the unconscious action of an accused can be traced to, or rooted in, a disease of the mind. Where that is so, the defence of insanity prevails. This is all felicitously expressed by Gresson P. in R. v. Cottle, [1958] N.Z.L.R. 999 at 1007 (C.A.):

“It would appear that automatism raised as a defence to a criminal charge may be something quite different and distinct from insanity. In a particular case, it may be that the automatism relied on is due to some ‘disease of the mind’ but it is not necessarily so. Automatism, which strictly means action without conscious volition, has been adopted in criminal law as a term to denote conduct of which the doer is not conscious—in short doing something without knowledge of it, and without memory afterwards of having done it—a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements. In such a case, the action is one which the mind in its normal functioning does not control. This may be due to some ‘disease of the mind’ or it may not; it may happen with a perfectly healthy mind (e.g. in somnambulism which may be unaccompanied by an abnormality of mind), or it may occur where the mind is temporarily affected as the result of a blow, or by the influence of a drug or other intoxication. It may on the other hand be caused by an abnormal condition of the mind capable of being designated a mental disease. What are known as the M’Naghten Rules can have no application unless there is some form of ‘disease of the mind’, which is not necessarily present in all cases of automatism.”


This case raises interesting issues, and the judicial conclusion, in my view, should be guided by general principles of criminal responsibility. Before alluding to those principles, it is useful to recall s. 16(4) of the Criminal Code, which reads:

“(4) Every one shall, until the contrary is proved, be presumed to be and to have been sane.”

In the usual case in which an accused pleads insanity, he has the burden of overcoming the presumption of sanity. In the present case the appellant is not seeking to establish that he was insane on 1st March 1974. The Crown is asserting the insanity in answer to the defence of automatism raised by the appellant. The presumption of sanity runs in the appellant’s favour.

We turn to s. 16(2): a person is insane when he is in a state of natural imbecility or has a disease of the mind to an extent that renders him incapable of appreciating the nature and quality of- an act or omission or of knowing that an act or omission is wrong. The important words, for present purposes, are “disease of the mind” .

The first principle, fundamental to our criminal law, which governs this appeal is that no act can be a criminal offence unless it is done voluntarily. Consciousness is a sine qua non to criminal liability.

The prosecution must prove every element of the crime charged. One such element is the state of mind of the accused, in the sense that the act was voluntary. The circumstances are normally such as to permit a presumption of volition and mental capacity. That is not so when the accused, as here, has placed before the court, by cross-examination of Crown witnesses or by evidence called on his own behalf, or both, evidence sufficient to raise an issue that he was unconscious of his actions at the time of the alleged offence. No burden of proof is imposed upon an accused raising such defence beyond pointing to facts which indicate the existence of such a condition: R. v. Berger (1975), 27 C.C.C. (2d) 357 at 379, leave to appeal to the Supreme Court of Canada refused 27 C.C.C. ( ‘d) 357n. Whether lack of consciousness relates to mens rea or to actus reus or both may be important in a case in which the offence charged is one of absolute liability, but the conceptual distinction does not concern us in the case a bar.

The second principle is that no person should be committed to a hospital for the criminally insane unless he suffers from disease of the mind in need of treatment or likely to recur.

The Ontario Court of Appeal held that the excusatory factor was insanity. This finding was reached though the appellant exhibited no pathological symptoms indicative of a previously existing, or ongoing, psychiatric disorder. On medical evidence accepted by the trial judge, the prospect of a recurrence of dissociation is extremely remote. There was no finding that the appellant suffered from psychosis, neurosis or personality disorder. He does not have an organic disease of the brain. This was an isolated event. The appellant has already spent several weeks in a mental institution undergoing psychiatric, neurological and psychological assessment, the result of which did not indicate need for treatment.

There are undoubtedly policy considerations to be considered. Automatism as a defence is easily feigned. It is said the credibility of our criminal justice system will be severely strained if a person who has committed a violent act is allowed an absolute acquittal on a plea of automatism arising from a psychological blow. The argument is made that the success of the defence depends upon the semantic ability of psychiatrists, tracing a narrow path between the twin shoals of criminal responsibility and an insanity verdict. Added to these concerns is the in terrorem argument that the floodgates will be raised if psychological blow automatism is recognized in law.

There are competing policy interests. Where the condition is transient rather than persistent, unlikely to recur, not in need of treatment and not the result of self-induced intoxication, the policy objectives in finding such a person insane are not served. Such a person is not a danger to himself or to society generally.

The Ontario Court of Appeal in the present case focused upon “external cause”. The “ordinary stresses and disappointments of life” were held not to constitute an external cause. The court considered that the “emotional stress” suffered by the appellant could not be said to be an external factor producing the automatism; the dissociative state had its source primarily in the psychological or emotional makeup of the appellant.

There is no evidence to support Martin J.A.’s statement attributing the dissociated state to the psychological or emotional makeup of the appellant. To exclude the defence of automatism it lay upon the Crown to establish that the appellant suffered from a disease of the mind at the time of the attack. The existence of the mental disease must be demonstrated in evidence. Here there is no such evidence from any of the expert or other witnesses with reference to the crucial period of the assault. Moreover, as earlier noted, s. 16(4) presumes sanity. The Court of Appeal’s conclusion was directly contrary to the testimony of Dr. Orchard, accepted by the trial judge, and finds no support in the testimony of Dr. Rowsell.

Martin J.A. left open the question whether it is possible to dissociate as a result of emotional shock rather than physical injury. The effect of the appellate court judgment was to differ with the trial judge’s finding that the dissociation was brought about by an externally operating cause. In the circumstances, l do not think it is open to this court to disturb the findings of fact at trial.

If the effect of the appellate court judgment is that, as a matter of law, emotional stress can never constitute an external factor then, with respect, I disagree. Indeed, in the passage quoted below the court seems to concede as much. If the controlling factor is one of degree of emotional stress, and the application of some form of quantitative test, then the question becomes one of fact for the trier of fact and not one of law for an appellate court.

It is not clear to me why, as a matter of law, an emotional blow—which can be devastating—should be regarded as an external cause of automatism in some circumstances and an internal cause in others, as the Court of Appeal would seem to propose in this passage [p. 68]:

“I leave aside, until it becomes necessary to decide them, cases where a dissociative state has resulted from emotional shock without physical injury, resulting from such causes, for example, as being involved in a serious accident although no physical injury has resulted; being the victim of a murderous attack with an uplifted knife, notwithstanding that the victim has managed to escape physical injury; seeing a loved one murdered or seriously assaulted, and the like situations. Such extraordinary external events might reasonably be presumed to affect the average normal person without reference to the subjective makeup of the person exposed to such experience.”

I cannot accept the notion that an extraordinary external event, i.e., an intense emotional shock, can cause a state of dissociation or automatism if and only if all normal persons subjected to that sort of shock would react in that way. If I understood the quoted passage correctly, an objective standard is contemplated for one of the possible causes of automatism, namely, psychological blow, leaving intact the subjective standard for other causes of automatism, such as physical blow or reaction to drugs.

As in all other aspects of the criminal law (except negligence offences) the inquiry is directed to the accused’s actual state of mind. It is his subjective mental condition with which the law is concerned. If he has a brittle skull and sustains a concussion which causes him to run amok, he has a valid defence of automatism. If he has an irregular metabolism which induced an unanticipated and violent reaction to a drug, he will not be responsible for his acts. If he is driven into shock and unconsciousness by an emotional blow, and was susceptible to that reaction but has no disease, there is no reason in principle why a plea of automatism should not be available. The fact that other people would not have reacted as he did should not obscure the reality that the external psychological blow did cause a loss of consciousness. A person’s subjective reaction, in the absence of any other medical or factual evidence supportive of insanity, should not put him into the category of persons legally insane. Nor am I prepared to accept the proposition, which seems implicit in the passage quoted, that whether an automatic state is an insane reaction or a sane reaction may depend upon the intensity of the shock.

M. E. Schiffer, in his text Mental Disorder and the Criminal Trial Process (1978), states that psychological blow automatism is described as a reaction to a shock (p. 101):

“However, in cases where the psychological stress has taken the form of a sudden jolt or blow to the accused, the court may be more willing to treat a short-lived bout of automatism as sane. Because the automatism, in order to be a defence in itself, must be an ‘on the sudden’ reaction to psychological stress, the defence of ‘psychological blow automatism’ may be seen as somewhat analogous to the defence of provocation.”

I agree with the requirement that there be a shock precipitating the state of automatism. Dissociation caused by a low stress threshold and surrender to anxiety cannot fairly be said to result from a psychological blow. In a recent decision of the British Columbia Court of Appeal, R. v. MacLeod, Vancouver No. CA/760128, 10th January 1980 (not yet reported), Craig J.A. adopted the judgment of Martin J.A. in Rabey. The facts of MacLeod cannot be compared with those in the instant appeal. There, the accused absorbed four double drinks of liquor prior to entering the alleged state of dissociation. His loss of consciousness cannot be traced to an immediate emotional shock. He had been subject to ongoing stress for some time, which was heightened by his wife’s recent departure. Though unwilling to classify it a disease of the mind, the accused’s medical witness described it as a “neurotic disorder” which could be induced by an “anxiety reaction”. The Court of Appeal held that non-insane automatism was not available.

Dr. Glanville Williams’ new book, Textbook of Criminal Law (1978), is helpful in this discussion, in particular c. 27. The author cites, as the main instances of automatism, “sleepwalking, concussion, some cases of epilepsy, hypoglycaemia and dissociative states”. Williams says (pp. 608-609) that “automatism” has come to express “any abnormal state of consciousness (whether confusion, delusion or dissociation) that is regarded as incompatible with the existence of mens rea, while not amounting to insanity”, adding:

“It would better be called ‘impaired consciousness’, but the orthodox expression can be used if we bear in mind that it does not mean what it says.”

And in a footnote [on p. 609]:

“Because automatism is a legal concept, a psychiatrist should be asked to testify to the mental condition as psychiatrically recognized, not to ‘automatism’. It is for the judge to make the translation. In most of the conditions referred to legally as automatism the psychiatrist would speak of an altered state of consciousness.”

The Parnerkar case is discussed at some length and the following observations made with respect thereto [p. 613]:

“The decision illustrates the difficulty that can be caused to the courts by over-enthusiastic psychiatrists. If such evidence were regularly given and accepted a considerable breach would be made in the law of homicide. A medical witness who proclaims that the defendant, though awake, did not know that he was stabbing a person because of his dissociated state invites incredulity, particularly where it is shown that the defendant immediately afterwards telephoned for an ambulance and the police. Further, to assert that this medical condition amounts to insanity ignores the distinction that has been developed between sane and non-sane automatism. If Parnerkar was in a state of automatism at all it was of the non-insane variety, since there was no evidence of psychosis or brain damage or continuing danger.” (The italics are mine.)

At the conclusion of the discussion on Parnerkar, Williams makes the following comment, particularly apt in the present case [p. 613]:

“It may also be remarked that commitment to hospital is inappropriate in a case of hysterical dissociation, since once the episode is over the patient does not need to be detained.”

Under the heading “Insanity versus Automatism” Williams states that before the decision in Quick, supra, Lord Denning’s view in Bratty, supra, was generally accepted. The test of insanity was the likelihood of recurrence of danger. In Quick the Court of Appeal adopted what might seem at first sight to be a different test for insane versus non-insane automatism. But the real question is whether the violence is likely to be repeated. Williams concludes that “on the whole, it would be much better if the courts kept to Lord Denning’s plain rule; the rule in Quick adds nothing to it” (p. 615.)

This view, which the Ontario Court of Appeal appears to have rejected, finds ample support in the legal literature. See S. M. Beck, “Voluntary Conduct: Automatism, Insanity and Drunkenness” (1966-67), 9 Cr. L Q. 315 at 321: “The cause of the automatic conduct, and the threat of recurrence, are plainly factors that determine the line between sane and insane automatism”; F. A. Whitlock, Criminal Responsibility and Mental Illness (1963), p. 120: “The test of whether or not an episode of automatism is to be judged as sane or insane action seems to rest on the likelihood of its repetition”; Professor J. Ll. J. Edwards “Automatism and Criminal Responsibility”, at p. 385: “Where evidence is available of recurrent attacks of automatism during which the accused resorts to violence . . . [this] inevitably leads to consideration of the imposition of some restraint”; S. Prevezer, “Automatism and Involuntary Conduct”, [1958] Crim. L.R. 440 at 441: “If . . . it can safely be predicted that his conduct is not likely to recur, having regard to the cause of the automatism, there can be no point in finding him insane and detaining him in Broadmoor”; G. A. Martin, “Insanity as a Defence” (1965-66), 8 Cr. L.Q. 240 at 253: “Perhaps the distinction lies in the likelihood of recurrence and whether the person suffering from it is prone to acts of violence when in that state.”

In principle, the defence of automatism should be available whenever there is evidence of unconsciousness throughout the commission of the crime that cannot be attributed to fault or negligence on his part. Such evidence should be supported by expert medical opinion that the accused did not feign memory loss and that there is no underlying pathological condition which points to a disease requiring detention and treatment.

I would add only that s. 16 determines the consequences of the finding of “no consciousness” on the basis of a legal conclusion guided by the medical evidence of the day. What is disease of the mind in the medical science of today may not be so tomorrow. The court will establish the meaning of disease of the mind on the basis of scientific evidence as it unfolds from day to day. The court will find as a matter of fact in each case whether a disease of the mind, so defined, is present.

The circumstances in this case are highly unusual, uncomplicated by alcohol or psychiatric history. The real question in the case is whether the appellant should be confined in an institution for the criminally insane. The trial judge negated an act of passion, lack of self-control or impulsiveness. The medical evidence negated a state of disease or disorder or mental disturbance arising from infirmity. Save what was said by Dr. Rowsell, whose evidence as to ex post facto hysterical amnesia was rejected by the trial judge, the medical experts gave the appellant a clean mental bill of health. l can see no possible justification for sending the case back for a new trial.
I would allow the appeal, set aside the judgment of the Ontario Court of Appeal and restore the verdict of acquittal.

Appeal dismissed.

 

R. v. Parks
Supreme Court of Canada
[1992] 75 C.C.C. (3d) 287; [1992] 2 S.C.R. 871

Appeal by the Crown from a judgment of the Ontario Court of Appeal dismissing an appeal by the Crown from the acquittal of the accused by Watt J. on charges of murder and attempted murder.
LAMER C.J.C. (dissenting in part):— In the small hours of the morning of May 24, 1987, the respondent, aged 23, attacked his parents-in-law, Barbara Ann and Denis Woods, killing his mother- in-law with a kitchen knife and seriously injuring his father-in-law. The incident occurred at the home of his parents-in- law while they were both asleep in bed. Their residence was 23 km from that of the respondent, who went there by car. Immediately after the incident, the respondent went to the nearby police station, again driving his own car. He told the police:

I just killed someone with my bare hands; Oh my God, I just killed someone; I’ve just killed two people; My God, I’ve just killed two people with my hands; My God, I’ve just killed two people. My hands; I just killed two people. I killed them; I just killed two people; I’ve just killed my mother- and father-in-law. I stabbed and beat them to death. It’s all my fault.

At the trial the respondent presented a defence of automatism, stating that at the time the incidents took place he was sleep-walking. The respondent has always slept very deeply and has always had a lot of trouble waking up. The year prior to the events was particularly stressful for the respondent. His job as a project co-ordinator for Revere Electric required him to work 10 hours a day. In addition, during the preceding summer the respondent had placed bets on horse races which caused him financial problems. To obtain money he also stole some $30,000 from his employer. The following March his boss discovered the theft and dismissed him. Court proceedings were brought against him in this regard. His personal life suffered from all of this. However, his parents-in-law, who were aware of the situation, always supported him. He had excellent relations with them: he got on particularly well with his mother-in-law, who referred to him as the “gentle giant”. His relations with his father-in-law were more distant, but still very good. In fact, a supper at their home was planned for May 24th to discuss the respondent’s problems and the solutions he intended to suggest. Additionally, several members of his family suffer or have suffered from sleep problems such as sleepwalking, adult enuresis, nightmares and sleep-talking.

The respondent was charged with the first degree murder of Barbara Ann Woods and the attempted murder of Denis Woods.

The trial judge chose to put only the defence of automatism to the jury, which first acquitted the respondent of first degree murder and then of second degree murder. The judge also acquitted the respondent of the charge of attempted murder for the same reasons. The Court of Appeal unanimously upheld the acquittal. …

Issue

Did the Ontario Court of Appeal err in law in holding that the condition of sleepwalking should be classified as non-insane automatism resulting in an acquittal instead of being classified as a “disease of the mind” (insane automatism), giving rise to the special verdict of not guilty by reason of insanity?

Analysis

This court has only ruled on sleepwalking in an obiter dictum in R. v. Rabey, [1980] 2 S.C.R 513. The found that sleepwalking was not a “disease of the mind” in the legal sense of the term and gave rise to a defence of automatism. Should the court maintain this position?

In Black’s Law Dictionary, 5th ed. (1979), automatism is defined as follows:

Behaviour performed in a state of mental unconsciousness or dissociation without full awareness, i.e., somnambulism, fugues. Term is applied to actions or conduct of an individual apparently occurring without will, purpose, or reasoned intention on his part; a condition sometimes observed in persons who, without being actually insane, suffer from an obscuration of the mental faculties, loss of volition or of memory, or kindred affections ...

In Rabey this court affirmed the judgment of the Ontario Court of Appeal, 37 C.C.C. (2d) 461 at pp. 472-3, 79 D.L.R. (3d) 414 at p. 425, 40 C.R.N.S. 46, in which Martin J.A. defined the expression “disease of the mind”:

“Disease of the mind” is a legal term, not a medical term of art; although a legal concept, it contains a substantial medical component as well as a legal or policy component. ..

As Martin J.A. pointed out at p. 477 C.C.C., p. 430 D.L.R., Canadian and foreign courts and authors have recognized that sleepwalking is not a disease of the mind: “Sleepwalking appears to fall into a separate category. Unconscious behaviour in a state of somnambulism is non-insane automatism ...” In Canada, see also R. v. Hartridge, [19671 1 C.C.C. 346, 57 D.L.R. (2d) 332, 48 C.R. 389 (Sask. C A.).

In Britain, Lord Denning in Bratty v. A-G. for Northern Ireland, [1963] A.C. 386 at p. 409, recognized that sleepwalking gave rise to a defence of automatism:

No act is punishable if it is done involuntarily: and an involuntary act in this context — some people nowadays prefer to speak of it as “automatism” — means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep walking.

Other foreign decisions have recognized the same principle: Ryan v. The Queen (1967), 40 A.L.J.R. 488 ; R. v. Cottle, [1958] N.Z.L.R. 999; R. v. Ngang, [1960] 3 S.A.L.R 363; R. v. Tolson (1889), 23 Q.B.D. 168; H.M. Advocate v. Fraser (1878), 4 Couper 70. However, two British decisions seem to go against this line of authority: R. v. Sullivan, [1984] A.C. 156, [1983] 2 All E.R. 673, 3 W.L.R. 123, and R. v. Burgess, [1991] 2 All E.R. 769. …

In the case at bar the trial judge first reviewed the case-law and scholarly analysis and said he did not intend to go against it:

In Rabey, supra, Martin J.A. considered somnambulism or sleepwalking to be a special category or case of non-insane automatism, one that perhaps could not be justified in accordance with a strict application of principles invoked to determine whether a condition from which an accused suffers amounts to “a disease of the mind” within s. 16(2) of the Criminal Code. Quite simply put, and notwithstanding that the observations concerning the legal characterization of sleepwalking as a separate category of non-insane automatism would not appear to have been necessary to a decision of the issue on appeal in Rabey, supra, I am not prepared to depart from the pronouncement of such an eminent authority as Martin J.A. on matters concerning the scope of criminal responsibility. The statement there made is, as one might expect, amply supported by the jurisprudence and academic writings upon the issue.

He then considered the facts of the instant case:

“In the circumstances of the present case, it is doubtful whether the sleep disorder from which the accused suffers would constitute a disease of the mind under s. 16(2) in accordance with general principle.”

The medical evidence in the case at bar showed that the respondent was in fact sleepwalking when he committed the acts with which he is charged. All the expert witnesses called by the defence said that in their opinion Parks was sleep walking when the events occurred....

Three very important points emerge from this testimony: (1) the respondent was sleepwalking at the time of the incident; (2) sleepwalking is not a neurological, psychiatric or other illness: it is a sleep disorder very common in children and also found in adults; (3) there is no medical treatment as such, apart from good health practices, especially as regards sleep. It is important to note that this expert evidence was not in any way contradicted by the prosecution, which as the trial judge observed did have the advice of experts who were present during the testimony given by the defence experts and whom it chose not to call.

The Crown, for its part, relied on a decision of the English Court of Appeal, R. v. Burgess supra, in which the court held that sleepwalking was a mental illness. It is worth noting here, however, that the evidence in Burgess was completely different from or even contradictory to that presented in the case at bar.

The facts in Burgess are more or less similar to those at issue here. Burgess and a friend fell asleep watching a video. The friend woke up when she felt a blow on the head. Burgess was facing her, holding the video recorder in the air, about to strike her on the head with it, and he did so. Burgess, who woke up immediately after the incident, testified that he did not remember having hit her. He presented a defence of automatism, which the judge rejected. He was acquitted on grounds of insanity and appealed this judgment. Nevertheless, while the facts are similar the medical evidence was very different. Expert witnesses were called. The first witness, a Dr. D’Orban, agreed that Burgess was sleepwalking, but regarded this as a pathological condition. Another expert, called by the Crown, Dr. Fenwick, said that in his opinion this was not sleepwalking but a “hysterical dissociative state”. …

In my view, therefore, that case is clearly distinguishable from the one at bar.

I am of the view that in the instant case, based on the evidence and the testimony of the expert witnesses heard, the trial judge did not err in leaving the defence of automatism rather than that of insanity with the jury, and that the instant appeal should be dismissed. For a defence of insanity to have been put to the jury, together with or instead of a defence of automatism, as the case may be, there would have had to have been in the record evidence tending to show that sleepwalking was the cause of the respondent’s state of mind. As we have just seen, that is not the case here. This is not to say that sleepwalking could never be a disease of the mind, in another case on different evidence.

As I see it, however, that does not end the matter. Although the expert witnesses were unanimous in saying that sleepwalkers are very rarely violent, I am still concerned by the fact that as the result of an acquittal in a situation like this (and I am relieved that such cases are quite rare), the accused is simply set free without any consideration of measures to protect the public, or indeed the accused himself, from the possibility of a repetition of such unfortunate occurrences. In the case of an outright acquittal, should there not be some control? And if so, how should this be done? I am of the view that such control could be exercised by means of the common law power to make an order to keep the peace vested in any judge or magistrate. This power of “preventive justice” has been recognized in England for centuries and has its origin in one or more sources:

(i) The common law;
(ii) The statute law, being the Justices of the Peace Act, 1361 (Imp.), c. 1 (hereinafter the “Statute of Edward III”); and/or
(iii) The form of commission which the justice of the peace is required to take in England.
In Canada this power has already been used in Ontario and British Columbia and was recognized by this court in 1954 in MacKenzie v. Martin (1954), 108 C.C.C. 305 at p. 313, [1954] 3 D.L.R. 417, [1954] S.C.R. 361:

In my view the common law preventive justice was in force in Ontario; s-s. (2) of s. 748, or any other provision of the Code to which our attention was directed, does not interfere with the use of that jurisdiction; and the respondent was intending to exercise it. He, therefore, had jurisdiction over the subject-matter of the complaint, and did not exceed it.

…  Accordingly, such a power exists. The question remains whether it should be exercised in the case of the respondent Parks, or at least whether its exercise should be considered. I am of the view that this approach should be considered. As I have already said, despite the unanimous and uncontradicted evidence that the chances of such an occurrence taking place again are for all practical purposes nil, I feel that all necessary measures should be taken to ensure that such an event does not recur. After all, before this tragic incident occurred, the probability of Mr. Parks’ killing someone while in a somnambulistic state was infinitesimal. Yet this is precisely what took place. Furthermore, the evidence at trial was not adduced with a view to determining whether an order would be justified and to determine the appropriate conditions of such an order. Thus, for example, an order might be made requiring Parks to do certain things suggested by a specialist in sleep disorders, for example to report to him periodically. In appropriate cases of outright acquittals on grounds of automatism measures that would reinforce sleep hygiene and thereby provide greater safety for others should always be considered. If the trial judge considers that making such an order would be in the interest of the public, he should so advise the parties and consider whatever evidence and submissions are tendered. In those situations where an order is made, it should be complied with in the same way as any other order of the court.

If conditions should be imposed on Mr. Parks they will restrict his liberty. It follows that the decision to impose such conditions and the terms of those conditions should not violate the rights guaranteed under s. 7 of the Canadian Canadian Charter of Rights and Freedoms. However, such a hearing is justified, as the sleepwalker has, although innocently, committed an act of violence which resulted in the death of his mother-in-law. Members of the community may quite reasonably be apprehensive for their safety. In those circumstances it cannot be said that the court has unduly intruded upon the liberty of the accused by exploring, on notice to the accused, the possibility of imposing some minimally intrusive conditions which seek to assure the safety of the community. If conditions are imposed, then they obviously must be rationally connected to the apprehended danger posed by the person and go no further than necessary to protect the public from this danger.

I would, therefore, refer this matter back to the trial judge so that he can hear the parties on this point and decide, upon the evidence before him, whether such an order is appropriate. If this proves to be the case, it will be up to the trial judge to determine the content of the order.

I would, accordingly, dismiss this appeal and uphold the acquittal of the respondent but refer the matter back to the trial judge for him to decide on the making of an order to keep the peace on certain conditions, pursuant to the “preventive justice” power which he possesses.

As there is no new trial being ordered, the issues raised in the cross-appeal are best left to be dealt with in another case. This disposition of the cross-appeal is not to be considered as determinative of any motion the respondent might want to make to the trial judge, as regards the hearing to be held, seeking a stay of proceedings under s. 24(1) of the Charter alleging a violation of his s. 11(b) Charter rights.

LA FOREST J.:— I have had the advantage of reading the reasons of the Chief Justice. I agree with him that the trial judge was correct in leaving only the defence of non-insane automatism with the jury. I am also in agreement with what the Chief Justice has to say on that issue, but I wish to add the following comments concerning the distinction in law between insane and non-insane automatism, particularly as it relates to somnambulism.

In his reasons, the Chief Justice finds that the evidence and expert testimony from the trial of the accused support the trial judge’s decision to instruct the jury on non-insane automatism. I agree with this finding, but in my view that is not the end of the matter. In distinguishing between automatism and insanity the trial judge must consider more than the evidence; there are overarching policy considerations as well. Of course, the evidence in each case will be highly relevant to this policy inquiry.

Automatism occupies a unique place in our criminal law system. Although spoken of as a “defence”, it is conceptually a subset of the voluntariness requirement, which in turn is part of the actus reus component of criminal liability. A useful introduction is found in the dissenting reasons of Dickson J. (as he then was) in R. v. Rabey (1980), 54 C.C.C. (2d) 1 at p. 9, 114 D.L.R. (3d) 193 at pp. 200-1, [1980] 2 S.C.R 513:

Although the word “automatism” made its way but lately to the legal stage, it is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question. Although spoken as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act.

One qualification to this statement should be noted. When the automatistic condition stems from a disease of the mind that has rendered the accused insane, then the accused is not entitled to a full acquittal, but to a verdict of insanity: see Bratty v. A- G. for Northern lreland, [1963] A.C. 386 at pp. 403-4 and 414 (H.L.). The condition in that instance is referred to as insane automatism, and the distinction between it and non-insane automatism is the crucial issue in this appeal.

When a defence of non-insane automatism is raised by the accused, the trial judge must determine whether the defence should be left with the trier of fact. This will involve two discrete tasks. First, he or she must determine whether there is some evidence on the record to support leaving the defence with the jury. This is sometimes referred to as laying the proper foundation for the defence: see Bratty, supra, at pp. 405 and 413. Thus an evidential burden rests with the accused, and the mere assertion of the defence will not suffice: see Bratty, at p. 414....

If the proper foundation is present the judge moves to the second task: he or she must consider whether the condition alleged by the accused is, in law, non-insane automatism. If the trial judge is satisfied that there is some evidence pointing to a condition that is in law non-insane automatism, then the defence can be left with the jury: see Rabey, per Ritchie J., at p. 7 C.C.C., p. 119 D.L.R. The issue for the jury is one of fact: did the accused suffer from or experience the alleged condition at the relevant time? Because the Crown must always prove that an accused has acted voluntarily, the onus rests on the prosecution at this stage to prove the absence of automatism beyond a reasonable doubt.

In the present case, there is no question that the accused has laid the proper foundation for the defence of automatism. The expert testimony reviewed by the Chief Justice is more than adequate on that score. At issue here is the question of law: is sleepwalking properly classified as non-insane automatism, or does it stem from a disease of the mind, thereby leaving only the defence of insanity for the accused? ...

A review of the cases on automatism reveals two distinct approaches to the policy component of the “disease of the mind” inquiry. These may be labelled the “continuing danger” and “internal cause” theories: see Colvin, Principles of Criminal Law, 2nd ed. (1991), at p. 293. At first glance these approaches may appear to be divergent, but in fact they stem from a common concern for public safety. This was recognized by Martin J. who referred to “protection of the public” as a focus of the policy inquiry. More recently, the Chief Justice had occasion to comment on this aspect of the insanity provisions of the Criminal Code, albeit in a division of powers context, in  R. v. Swain (1991), 63 C.C.C. (3d) 481 at p. 525, [1991] 1 S.C.R. 933, 5 CR. (4th) 253:

It is true that the dominant characteristic of these provisions is not punishment; however, neither is it treatment. The “pith and substance” of the legislative scheme dealing with individuals acquitted by reason of insanity is the protection of society from dangerous people who have engaged in conduct proscribed by the Criminal Code through the prevention of such acts in the future. While treatment may be incidentally involved in the process, it is not the dominant objective of the legislation.

The “continuing danger” theory holds that any condition likely to present a recurring danger to the public should be treated as insanity. The “internal cause” theory suggests that a condition stemming from the psychological or emotional make-up of the accused, rather than some external factor, should lead to a finding of insanity. The two theories share a common concern for recurrence, the latter holding that an internal weakness is more likely to lead to recurrent violence than automatism brought on by some intervening external cause.

It would appear that the “internal cause” approach has gained a certain ascendancy in both Canadian and English jurisprudence. The theory was the basis for deciding Rabey, where the distinction was described by Martin J.A., at pp. 477-8 C.C.C., pp. 430-1 D.L.R., as follows:

In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, having its source in his psychological or emotional make-up, or in some organic pathology, as opposed to a malfunctioning of the mind which is the transient effect produced by some specific external factor such as, for example, concussion. Any malfunctioning of the mind, or mental disorder having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not), may be a “disease of the mind” if it prevents the accused from knowing what he is doing, but transient disturbances of consciousness due to certain specific external factors do not fall within the concept of disease of the mind ... Particular transient mental disturbances may not, however, be capable of being properly categorized in relation to whether they constitute “disease of the mind”, on the basis of a generalized statement, and must be decided on a case by case basis.

The theory has also been adopted in England, first in R. v. Quick, [1973] 3 All E.R. 347 at p. 356 (C.C.A.), and most recently in R. v. Hennessy, [1989] 2 All E.R 9 at p. 13 (C.C.A.), where Lord Lane CJ. stated the approach as follows: “The question in many cases, and this is one such case, is whether the function of the mind was disturbed on the one hand by disease or on the other hand by some external factor.” The judgments in both Rabey and Hennessy are careful to state that the “internal cause” theory is not a universal approach to the disease of the mind inquiry. Indeed, Martin J.A., at p. 477 C.C.C., p. 430 D.L.R., appears to suggest that sleepwalking is one of those conditions that is not usefully assessed on this basis.

The “internal cause” approach has been criticized as an unfounded development of the law, and for the odd results the external/internal dichotomy can produce; see Williams, Textbook of Criminal law, 2nd ed. (1983), at pp. 671-6; Stuart, Canadian Criminal Law, 2nd ed. (1987), at pp. 924; Colvin, ibid., at p. 291. These criticisms have particular validity if the “internal cause” theory is held out as the definitive answer to the disease of the mind inquiry. However, it is apparent from the cases that the theory is really meant to be used only as an analytical tool, and not as an all-encompassing methodology. As Watt J. commented in his reasons in support of his charge to the jury in this case, the dichotomy “constitutes a general, but not an unremitting or universal, classificatory scheme for ‘ disease of the mind”‘.

As Martin J.A. suggested in Rabey, somnambulism is an example of a condition that is not well suited to analysis under the “internal cause” theory. The poor fit arises because certain factors can legitimately be characterized as either internal or external sources of automatistic behaviour. For example, the Crown in this case argues that the causes of the respondent’s violent sleepwalking were entirely internal, a combination of genetic susceptibility and the ordinary stresses of everyday life (lack of sleep, excessive afternoon exercise, and a high stress level due to personal problems). These “ordinary stresses” were ruled out as external factors by this court in Rabey (although by a narrow majority). However, the factors that for a waking individual are mere ordinary stresses can be differently characterized for a person who is asleep, unable to counter with his conscious mind the onslaught of the admittedly ordinary strains of life. One could argue that the particular amalgam of stress, excessive exercise, sleep deprivation and sudden noises in the night that causes an incident of somnambulism is, for the sleeping person, analogous to the effect of a concussion upon a waking person, which is generally accepted as an external cause of non-insane automatism; see Williams, ibid., at p. 666. In the end, the dichotomy between internal and external causes becomes blurred in this context, and is not helpful in resolving the inquiry.

The continuing danger approach stems from an obiter comment of Lord Denning in Bratty, supra, where he proposes the following test for distinguishing between insane and non-insane automatism, at p. 412:

It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal.

Lord Denning’s casual proposition has not been universally accepted, although some elements of the theory remain today. It was questioned in R. v. Quick, supra, at pp. 351-2, and legal academics have questioned the utility of the test; see Stuart, ibid., at pp. 94-5; Colvin, ibid., at p. 294. As well, medical authorities have doubted the ability of their profession to predict recurrent dangerousness: see Roth, “Modern Psychiatry and Neurology and the Problem of Responsibility”, in Hucker, Webster and Ben-Aron, eds., Mental and Criminal Responsibility (1981), at pp. 104-9. In Rabey Martin J.A. doubted the merit of Lord Denning’s test, noting, at p. 476 C C.C., p. 428 D.L.R., that the converse of Denning’s proposition was surely not good law. He stated:

It would be quite unreasonable to hold that a serious mental disorder did not constitute a disease of the mind because it was unlikely to recur. To so hold would be to exclude from the exemption from responsibility afforded by insanity, persons, who by reason of a severe mental disorder were incapable of appreciating the nature and quality of the act or of knowing that it was wrong, if such mental disorder was unlikely to recur.

The majority of this court approved these comments, and Dickson J. in dissent conceded the point. None the less, Dickson J. sought to revive Lord Denning’s basic formulation in the following passage, at pp. 30 1 C.C.C., pp. 222-3 D.L.R.:

Under the heading Insanity versus Automatism” [Glanville] Williams states that before the decision in Quick, Lord Denning’s view in Bratty was generally accepted. The test of insanity was the likelihood of recurrence of danger. In Quick, the Court of Appeal adopted what might seem at first sight to be a different test for insane versus non-insane automatism. But the real question is whether the violence is likely to be repeated. Williams concludes that on the whole, it would be much better if the courts kept to Lord Denning’s plain rule; the rule in Quick adds nothing to it (p. 615). …

While Dickson J.’s views did not carry the day in Rabey, nothing in the majority judgment precludes the consideration of a continuing danger as a factor at the policy stage of the inquiry....

In my view, the Court of Appeal has properly stated the law on this point. Recurrence is but one of a number of factors to be considered in the policy phase of the disease of the mind inquiry. Moreover, the absence of a danger of recurrence will not automatically exclude the possibility of a finding of insanity.

In this case, then, neither of the two leading policy approaches determines an obvious result. It is clear from the evidence that there is almost no likelihood of recurrent violent somnambulism. A finding of insanity is therefore less likely? but the absence of a continuing danger does not mean that the respondent must be granted an absolute acquittal. At the same time, the “internal cause” theory is not readily applicable in this case. It is therefore necessary to look further afield.

In his dissenting reasons in Rabey, at p. 27 C.C.C., p. 219 D.L.R., Dickson J. enumerates certain additional policy considerations that are relevant to the distinction between insanity and automatism:

There are undoubtedly policy considerations to be considered. Automatism as a defence is easily feigned. It is said the credibility of our criminal justice system will be severely strained if a person who has committed a violent act is allowed an absolute acquittal on a plea of automatism arising from a psychological blow. The argument is made that the success of the defence depends upon the semantic ability of psychiatrists, tracing a narrow path between the twin shoals of criminal responsibility and an insanity verdict. Added to these concerns is the in terrorem argument that the floodgates will be raised if psychological blow automatism is recognized in law.

These factors are raised by Dickson  J. as arguments against a finding of non-insane automatism. In the present case, however, none of these arguments is persuasive. It seems unlikely that the recognition of somnambulism as non insane automatism will open the floodgates to a cascade of sleepwalking defence claims. First of all, the defence of somnambulism has been recognized, albeit in obiter discussion, in an unbroken line of cases stretching back at least a century, yet I am unaware of any current problem with specious defence claims of somnambulistic automatism. Indeed, this case and Burgess are among the few appellate decisions in which the status of somnambulism was a question to be decided. Moreover, it is very difficult to feign sleepwalking - precise symptoms and medical histories beyond the control of the accused must be presented to the trier of fact, and as in this case the accused will be subjected to a battery of medical tests. Finally, a comprehensive listing of the indicia of sleepwalking can be consulted by both the court and the medical experts: see Fenwick, “Somnambulism and the Law: A Review” 5 Behavioral Sciences and the Law 343 (1987), at p. 354.

It may be that some will regard the exoneration of an accused through a defence of somnambulism as an impairment of the credibility of our justice system. Those who hold this view would also reject insane automatism as an excuse from criminal responsibility. However, these views are contrary to certain fundamental precepts of our criminal law: only those who act voluntarily with the requisite intent to commit an offence should be punished by criminal sanction. The concerns of those who reject these underlying values of our system of criminal justice must accordingly be discounted.

In the end, there are no compelling policy factors that preclude a finding that the accused’s condition was one of non-insane automatism. I noted earlier that it is for the Crown to prove that somnambulism stems from a disease of the mind; neither the evidence nor the policy considerations in this case overcome the Crown’s burden in that regard. Committal under s. 614(2) of the Criminal Code is therefore precluded, and the accused should be acquitted.

As I noted at the outset, it is apparent that the medical evidence in this case is not only significant in its own right, but also has an impact at several stages of the policy inquiry. As such, I agree with the Chief Justice that in another case on different evidence sleepwalking might be found to be a disease of the mind. As Dickson J. commented in Rabey ([1980] 114 D.L.R. (3d) 193) at p. 223:

What is disease of the mind in the medical science of today may not be so tomorrow. The Court will establish the meaning of disease of the mind on the basis of scientific evidence as it unfolds from day to day. The Court will find as a matter of fact in each case whether a disease of the mind, so defined, is present.

On the question of a possible imposition of an order to keep the peace, I am in agreement with the reasons of both Sopinka and McLachlin J. I would not refer this matter back to the trial judge. In addition to their reasons, I would note the following practical considerations that in my view preclude consideration of the type of order proposed by the Chief Justice.

To be effective, any order to keep the peace would have to be permanent. This would violate established practice (if not the law) regarding peace orders, which requires a defined period for the order: see R. v. Edgar (1913), 109 L.T. 416 (C.C.A.). Of course, the courts could impose a succession of limited-term orders that would amount to a permanent injunction governing the respondent. However, even this course of action may not be feasible in light of concerns over enforcement of the orders, to which I now turn.

Generally, there are two mechanisms for the enforcement of a traditional order to keep the peace. First, any complainant who seeks an order will return to court to complain of any breach of the peace. Thus the complainant acts as a watch-dog much like the plaintiff in a civil injunction action. In the instant case, however, there is no “complainant” as such. Only the respondent’s immediate family would have a vested interest in the order and an ability to monitor compliance with it, and it would be unrealistic to expect them to complain of any breach of the peace.

A second enforcement mechanism is the imposition of a bond with a guarantee from some third person. This is the standard procedure under the Magistrates’ Courts Act, 1980 (U.K.), c. 43, in England, where the courts require a surety to guarantee the recognizance: see Halsbury’s laws of England, 4th ed., vol. 29, para. 444. The surety is entitled to complain to the court if the principal has been or is about to be in breach of the conditions of the recognizance, and as such the surety becomes the court’s watch-dog. Such an arrangement is feasible over a short term, as the cost of the surety can reasonably be imposed upon the accused. But with a permanent order, the costs of a lifelong surety would be onerous, and it would be unreasonable to require the respondent to bear this cost.

It appears, then, that the judiciary is not practically equipped to administer a “keep the peace order” in the circumstances of this case. For this reason, along with the reasons of my colleagues, I would not remit this case back to the trial judge for the consideration of such an order. I would accordingly dismiss the appeal and uphold the acquittal of the respondent.

Appeal dismissed.

 

R. v. Stone
Supreme Court of Canada
[1999] 2 S.C.R. 290

BASTARACHE J. (L’Heureux-Dubé, Gonthier, Cory and McLachlin JJ., concurring):—  The present case involves automatism, and more specifically, “psychological blow” automatism. The appellant claims that nothing more than his wife’s words caused him to enter an automatistic state in which his actions, which include stabbing his wife 47 times, were involuntary. How can an accused demonstrate that mere words caused him to enter an automatistic state such that his actions were involuntary and thus do not attract criminal law sanction?  This is the issue raised in this appeal.

I. Facts

The appellant was charged with the murder of his wife, Donna Stone. At trial, the appellant admitted killing his wife. In his defence, the appellant claimed:  insane automatism, non-insane automatism, lack of intent, and alternatively, provocation.

The appellant met Donna Stone in the spring of 1993 and the two were married on May 8, 1993. They lived in Winfield, British Columbia, in the Okanagan Valley. This was the appellant’s third marriage. He has two teenage sons from his second marriage. His sons live with their mother in Surrey, British Columbia, a suburb of Vancouver.

In March 1994, the appellant planned a business trip to Vancouver. He decided to visit his sons while in the Vancouver area. He contacted his second wife and made arrangements to take his sons out for dinner and a movie. The appellant did not tell Donna Stone of his intention to travel to Vancouver and visit his sons because she did not get along with them.

According to the appellant, Donna Stone learned of his intention to go to Vancouver. She demanded to go along with him and said she would follow him in another vehicle if he did not take her. The appellant agreed to take her with him to Vancouver.

The appellant testified that Donna Stone berated him throughout the drive to Vancouver and objected to his visit with his sons. Nevertheless, the appellant drove to the home of his second wife for the planned visit with his sons. The visit lasted only 15 minutes because Donna Stone threatened to “lay on the horn until the police come”.

The appellant testified that after the brief visit with his sons, he and Donna Stone drove towards Vancouver. According to the appellant, Donna Stone asked him if he wanted a divorce. He responded that they might as well get divorced if she was not going to let him see his sons. This answer upset the victim and she again began to berate the appellant.

The appellant testified that he pulled into an empty lot and turned off the truck’s engine while Donna Stone continued to yell at him:

. . . I sat there with my head down while she’s still yelling at me that I’m nothing but a piece of shit and that when she had talked to the police, that she had told them lies, that I was abusing her, and that they were getting all the paperwork ready to have me arrested, and that all she had to do was phone them; and once they had me arrested, that she was going to get a court order so that I wouldn’t be allowed back onto our property and that I would have to go and live with my mother and run my business from there, that she was going to quit working and she was just going to stay in the house with her children and that I would have to pay her alimony and child support.

. . . Well, she just continued on and she just said that she couldn’t stand to listen to me whistle, that every time I touched her, she felt sick, that I was a lousy fuck and that I had a small penis and that she’s never going to fuck me again, and I’m just sitting there with my head down; and by this time, she’s kneeling on the seat and she’s yelling this in my face. . . .

The appellant testified that the victim’s voice began to fade off. He recalls wondering why she was treating him and his children in this way. He also remembers thinking about how people in the small town in which he lived would look at him if his wife had him arrested. The appellant then remembers a “whoosh” sensation washing over him from his feet to his head. According to the appellant, when his eyes focussed again, he was staring straight ahead and felt something in his hand. He was holding a six-inch hunting knife which he kept in the truck. He looked over and saw Donna Stone slumped over on the seat. He knew she was dead. It would later be determined that Donna Stone died from loss of blood resulting from 47 stab wounds.

The appellant testified that he opened the passenger door and Donna Stone’s body fell out onto the ground. After five to 10 minutes, the appellant put his wife’s body in a toolbox in the back of his truck. He then washed the blood from his hands in a puddle, removed his bloody clothes and put on extra clothes he kept in the truck. The appellant then pulled out of the empty lot and drove to a nearby motel where he asked for directions home and purchased a six-pack of beer to calm his nerves.

According to the appellant, he arrived home around 3:00 a.m. He did not immediately go in because the lights were on and he feared someone was still awake. The appellant parked down the road until 6:00 a.m. He then drove the truck into his garage and went into the house where he cleaned up and packed a few shirts. He left a note for his step-daughter, the daughter of the victim:

Sorry, Nicole, but she just wouldn’t stop yelling at me. My loan to the bank, credit union has insurance on it if I die. Love Bert.

The appellant testified that he checked into a hotel so he could take a shower and shave. He then collected an outstanding debt, sold a car he owned and took a cab to the airport. He flew to Mexico. While in Mexico, the appellant awoke one morning to the sensation of having his throat cut. In trying to recall his dream, he remembered stabbing Donna Stone twice in the chest before experiencing the “whooshing” sensation.

Donna Stone’s body was found in the tool box in the appellant’s truck two days after her death.

The appellant returned to Canada approximately six weeks later on May 2, 1994. The next day he spoke to a lawyer and then surrendered himself to police.

II. Psychiatric Evidence

Two psychiatrists gave evidence in this case. The defence psychiatrist, Dr. Janke, interviewed the appellant on two occasions approximately 18 months after the killing. The Crown psychiatrist, Dr. Murphy, interviewed the appellant for one hour on the seventh day of the trial.

A. Evidence of Dr. Janke

Dr. Janke testified that a dissociative episode is a medical term for a circumstance in which an individual’s thinking component, including his judgment and ability to know what he is doing, splits from his physical body. According to Dr. Janke, dissociation can be caused by a psychological blow and is often accompanied by partial to complete memory loss. Dr. Janke was unaware of any cases in which a violent dissociative episode had recurred.

Dr. Janke testified that the appellant’s account of the facts in this case was consistent with a dissociative episode caused by a series of psychological blows. In particular, Dr. Janke noted that the following facts are consistent with dissociation:  Donna Stone’s words immediately prior to the killing were extreme; the appellant’s second wife reported that two to three hours before the killing the appellant seemed out of character; the appellant reported experiencing a “whooshing” sensation followed by a re-awareness stage; the appellant reported decreasing concentration, difficulty following driving directions and memory loss; and the attack was of a frenzied, overkill nature.

In Dr. Janke’s opinion, the appellant was in a dissociative state for at least the majority of the attack on Donna Stone. According to Dr. Janke, this state resulted from Donna Stone’s extreme insults which must be viewed in the context of the stress the appellant had endured throughout the day. However, Dr. Janke qualified his opinion by noting that it was largely dependant on the accuracy and truthfulness of the appellant’s account of events.

According to Dr. Janke, there was no evidence that the appellant suffered from any psychiatric or physical condition which could have been responsible for a dissociative episode. The only psychological factor the appellant possessed which may have contributed to a dissociative episode was his tendency not to be aware of his emotional state. Dr. Janke considered this factor to be within the normal range of human behaviour.

Dr. Janke agreed that the appellant told him that while he was in Mexico, he “became aware of a memory of having a knife in his hand and stabbing Donna Stone twice in the chest before having the ‘whooshing’ sensation” (emphasis added). However, Dr. Janke pointed out that an individual who has had a dissociative episode is usually unable to sequence memories of events surrounding the episode accurately and chronologically.

B. Evidence of Dr. Murphy

Dr. Murphy agreed with much of Dr. Janke’s evidence about dissociation generally. For example, she accepted his explanation of what dissociation is. She also agreed that dissociation is often accompanied by memory loss and an inability to sequence memories of events surrounding the episode accurately and chronologically. Like Dr. Janke, Dr. Murphy was unaware of any cases in which a violent dissociative episode had recurred.

In relation to the appellant’s claim of dissociation, Dr. Murphy testified that it is possible that the appellant was in a dissociative state when he killed Donna Stone. However, she noted that there is no scientific method of completely ruling out a claim of dissociation once it has been made. Furthermore, she opined that although it is possible, it is extremely unlikely that the appellant was in a dissociative state when he killed his wife. Dr. Murphy’s scepticism was based upon several factors. First, she pointed out that the appellant’s reported decrease in concentration, difficulty following driving directions and memory loss were common phenomenon which, though consistent with dissociation, could easily be attributed to a number of other factors. In particular, the appellant’s reported lack of memory in itself is not conclusive since up to 50 per cent of people who are charged with serious crimes report that they do not remember the incident. Dr. Murphy also pointed out that the frenzied, overkill nature of the attack was equally consistent with rage as with dissociation.

Dr. Murphy noted that the mind and body of a person in a dissociative state have been split. For this reason, she would expect that there would usually be no connection between the dissociated acts and the social context immediately preceding them. For example, a person who is watching television with a group of people might get up and urinate in front of the others. According to Dr. Murphy, the fact that Donna Stone was both the trigger of the dissociative episode and the victim of the appellant’s dissociated violence renders the appellant’s claim of dissociation suspect.

Finally, Dr. Murphy noted that Dr. Janke’s opinion that the appellant had experienced a dissociative episode was based almost exclusively on the appellant’s account of events. She testified that psychiatrists must view claims of dissociation with suspicion if they are made in legal contexts where the claimant has an obvious interest in a favourable disposition. In such circumstances, the evidence of bystanders who can corroborate the claimant’s explanation of events and provide information about the appearance of the claimant at the time of the incident is an important element in confirming the validity of a claim of dissociation.

Dr. Murphy agreed with Dr. Janke that there was no evidence that the appellant suffered from any medically recognized psychiatric disorder which could have been responsible for a dissociative episode….

VI. Analysis

….

B. Establishing a Single Approach to all Cases Involving Claims of Automatism

Automatism may arise in different contexts. For example, in Parks, supra, this Court dealt with a claim of automatism attributed to a state of somnambulism. In R. v. Daviault, [1994] 3 S.C.R. 63, this Court addressed extreme intoxication akin to a state of automatism. In the present case, the appellant claims that nothing more than his wife’s words caused him to enter an automatistic state. This type of claim has become known as “psychological blow” automatism. Automatism attributed to a psychological blow was at the centre of this Court’s decision in Rabey, supra.

The application of different legal tests for automatism dependent on the context in which the alleged automatism arose is a problem because there may be cases in which the facts simply are not conducive to such strict categorization. Cases involving disputes over the cause of the alleged automatism come to mind. The solution to this problem is, of course, to develop a general test applicable to all cases involving claims of automatism. This I will do in these reasons. I therefore emphasize that the following analysis is meant to apply to all claims of automatism and not simply to cases of “psychological blow” automatism. In my opinion, the most effective general test will incorporate various elements of this Court’s most recent statements on automatistic-like behaviour; see Daviault, Parks and Rabey.

In Parks, supra, La Forest J. set out two discrete tasks which trial judges must undertake in determining whether automatism should be left with the trier of fact. First, he or she must assess whether a proper foundation for a defence of automatism has been established. As I will explain below, establishing a proper foundation for automatism is the equivalent of satisfying the evidentiary burden for this defence. The mere assertion of involuntariness will not suffice. If a proper evidentiary foundation has been established, the trial judge must next determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism (p. 897).

In my opinion, the functionality of such a two-step framework is apparent and warrants making such an approach generally applicable to all cases involving claims of automatism. However, this framework only provides a starting point from which to develop a general legal approach to automatism. I will now clarify the particulars of the legal analysis which must be undertaken at each of the framework’s two stages.

C. Step 1:  Establishing a Proper Foundation for a Defence of Automatism

A review of the case law reveals that courts, including this Court, have provided little guidance about exactly what an accused must do to establish a proper foundation for a defence of automatism. Frequently, this stage of the judicial two-step analysis consists of nothing more than a remark that there is sufficient evidence on the record. By far the majority of judicial attention has concentrated on the second stage of the automatism analysis, that is, whether the defence of mental disorder or non-mental disorder automatism should be left with the trier of fact. In my opinion, this Court must provide trial judges with more detail about the required elements of a proper foundation for a defence of automatism…

[Bastarache J. discussed how the proper foundation requirement fit into the general structure of criminal law. He then discussed the conceptual place of the defence and the burden of proof associated with it at length. He continued:]                 

E. What Should the Burdens of Proof Associated with Automatism Be?

The relationship between the burdens associated with automatism dictates that any change in the legal burden of automatism will necessarily result in a change to the evidentiary or proper foundation burden associated with this defence. The evidentiary burden will relate either to evidence sufficient to establish voluntariness beyond a reasonable doubt, as suggested by Binnie J., or, as set out below, to evidence sufficient to establish involuntariness on a balance of probabilities. In my opinion, a review of the legal burden applicable in cases involving claims of automatism is in order. My colleague Binnie J. is of the view that this Court ought not review either the legal or the evidentiary burden set out in the dissenting reasons of Dickson J. in Rabey. In support of this position, Binnie J. argues that neither the respondent nor any of the intervening Attorneys General requested such a review. With respect, I disagree. In its written submissions, the respondent invited this Court to re-consider the trial judge’s finding that there was a proper foundation for automatism. The respondent also requested that this Court make the proper foundation stage of the automatism analysis more stringent. As explained above, an assessment of an evidentiary or proper foundation burden cannot be undertaken without reference to the related legal burden.

In her 1993 Proposals to amend the Criminal Code (general principles), the Minister of Justice recommended that the legal burden of proof in all cases of automatism be on the party that raises the issue on a balance of probabilities. This is the same legal burden that this Court applied to a claim of extreme intoxication akin to a state of automatism in Daviault, supra. It is also the legal burden Parliament assigned to the defence of mental disorder in s. 16 of the Code, which, as mentioned above, is equally applicable to voluntary and involuntary actions stemming from a disease of the mind and therefore applies to mental disorder automatism. As I explained above, different legal approaches to claims of automatism, whether based on the context in which the alleged automatism arose or on the distinction between mental disorder and non-mental disorder automatism, is problematic and should be avoided. …

An appropriate legal burden applicable to all cases involving claims of automatism must reflect the policy concerns which surround claims of automatism. The words of Schroeder J.A. in R. v. Szymusiak, [1972] 3 O.R. 602 (C.A.), at p. 608, come to mind:

. . . a defence which in a true and proper case may be the only one open to an honest man, but it may just as readily be the last refuge of a scoundrel.

The recognition that policy considerations are relevant is nothing new to this area of criminal law. In Rabey (Ont. C.A.), supra, Martin J.A., whose reasons were adopted by the majority of this Court, recognized that the term “disease of the mind” contains both a medical component and legal or policy component (p. 425). Dickson J., dissenting in Rabey (S.C.C.), noted, at p. 546, that specific policy considerations were involved in determining whether a claim of automatism should be categorized as mental disorder or non-mental disorder…

Likewise, in Parks, supra, La Forest J. considered policy to be a relevant consideration for trial judges in distinguishing between mental disorder and non-mental disorder automatism (p. 896 and pp. 907-908).

In both Rabey and Parks, policy considerations were relegated to the second stage of the automatism analysis to determine whether the condition alleged by the accused was mental disorder or non-mental disorder automatism. In neither case is there any indication that this Court intended to preclude the consideration of policy in the determination of an appropriate legal burden for cases involving claims of automatism.

The foregoing leads me to the conclusion that the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact.

In Chaulk, supra, and Daviault, supra, this Court recognized that although placing a balance of probabilities burden on the defence with respect to an element of the offence constitutes a limitation of an accused person’s rights under s. 11(d) of the Charter, it can be justified under s. 1. In my opinion, the burden is also justified in the present case. The law presumes that people act voluntarily in order to avoid placing the onerous burden of proving voluntariness beyond a reasonable doubt on the Crown. Like extreme drunkenness akin to automatism, genuine cases of automatism will be extremely rare. However, because automatism is easily feigned and all knowledge of its occurrence rests with the accused, putting a legal burden on the accused to prove involuntariness on a balance of probabilities is necessary to further the objective behind the presumption of voluntariness. In contrast, saddling the Crown with the legal burden of proving voluntariness beyond a reasonable doubt actually defeats the purpose of the presumption of voluntariness. Thus, requiring that an accused bear the legal burden of proving involuntariness on a balance of probabilities is justified under s. 1. There is therefore no violation of the Constitution…

As explained above, what an accused must do to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism is directly related to the nature of the legal burden in such cases. Accordingly, a change to the evidentiary burden associated with automatism is in order. To meet this burden, the defence must satisfy the trial judge that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. In my opinion, this evidentiary burden is consistent with the two-step approach taken by La Forest J. in Parks, supra. As noted above, the appropriateness of the evidentiary burden on the defence at the proper foundation stage was not directly at issue before this Court in Parks. This explains why La Forest J. did not find it necessary to refine the burdens associated with automatism to the extent that it has been necessary for me to do in the present case. What then is the nature of the evidence which will be required to satisfy this revised proper foundation or evidentiary burden?

A review of the case law reveals that an accused must claim that he acted involuntarily at the relevant time in order to satisfy the automatism evidentiary burden. As stated earlier, a mere assertion of involuntariness will not suffice.

In addition to an assertion of involuntariness, the defence must present expert psychiatric evidence confirming its claim. Even the appellant in the present case concedes that in the absence of such psychiatric evidence it is unlikely that he could satisfy his evidentiary or proper foundation burden.

The law often requires judges to make subtle and sophisticated determinations about scientific methodology and expert evidence. Cases involving claims of automatism are no exception. Yet as Breyer J. of the United States Supreme Court aptly recognized in General Electric Co. v. Joiner, 118 S. Ct. 512 (1997), judges are usually not scientists and thus do not have the scientific training which facilitates the making of such decisions. For this reason, when law and science intersect, judges must undertake their duties with special care (p. 520).

Although cases involving claims of automatism do not deal with complex chemical reactions or the like, they do require judges to assess confusing and often contradictory psychiatric evidence. In particular, when determining whether the evidentiary burden for automatism has been satisfied, trial judges must be careful to recognize that the weight to be given to expert evidence may vary from case to case. If the expert testimony establishes a documented history of automatistic-like dissociative states, it must be given more weight than if the expert is simply confirming that the claim of automatism is plausible. In the former case, the expert is actually providing a medical opinion about the accused. In the latter case, however, the expert is simply providing an opinion about the circumstances surrounding the allegation of automatism as they have been told to him or her by the accused. Trial judges must keep in mind that an expert opinion of this latter type is entirely dependent on the accuracy and truthfulness of the account of events given to the expert by the accused. Indeed, in the present case, Dr. Janke, the defence psychiatrist, qualified his opinion by noting that it was based almost exclusively on the accuracy and truthfulness of the appellant’s account of events…

In order to satisfy the evidentiary or proper foundation burden, all cases will require an assertion of involuntariness and confirming psychiatric evidence. However, this burden will generally require more than an assertion of involuntariness on the part of the accused accompanied by confirming expert evidence that automatism is plausible assuming the account of events given to the expert by the accused was accurate and truthful. The recognition of Sopinka, Lederman and Bryant in The Law of Evidence in Canada, supra, at p. 129, that “[p]olicy considerations are important in determining the sufficiency of evidence that is required to satisfy [evidential burdens] in both criminal and civil proceedings” supports such an approach. I will now attempt to provide some guidance on what additional evidence is relevant to the determination of whether the defence has raised evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities. The factors discussed here are given only by way of example and are meant to illustrate the type of reasoning trial judges should employ when evaluating the evidence adduced at trial.

Both the majority and dissent of this Court in Rabey, supra, recognized that a “shocking” psychological blow was required before non-mental disorder, rather than mental disorder, automatism could be left with the trier of fact. Although Rabey dealt specifically with “psychological blow” automatism, I am of the opinion that it is appropriate in all cases for trial judges to consider the nature of the alleged automatism trigger in order to assess whether the defence has raised evidence on which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. With reference to psychological blow automatism specifically, I agree that the defence will generally have to provide evidence of a trigger equivalent to a “shock” in order to satisfy its evidentiary burden.

The existence or non-existence of evidence which corroborates the accused’s claim of automatism will also be relevant to the assessment of whether a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. Such evidence may take different forms. Two examples are worth noting here. First, evidence of a documented medical history of automatistic-like dissociative states would certainly assist the defence in satisfying a trial judge that a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. Furthermore, the more similar the historical pattern of dissociation is with the current claim of automatism, the more persuasive the evidence will be on the issue of involuntariness. For example, a documented history of dissociation in response to the particular triggering stimuli in question in the case could serve as strong evidence that the same stimuli once again triggered an involuntary response. Although I would not go so far as to make a medical history of dissociation a requirement for the defence to meet its evidentiary burden at the proper foundation stage, I would note that the lack of such evidence is also a relevant factor in determining whether this defence burden has been satisfied.

Corroborating evidence of a bystander which reveals that the accused appeared uncharacteristically glassy-eyed, unresponsive and or distant immediately before, during or after the alleged involuntary act will also be relevant to the assessment of whether the defence has raised evidence on which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. This is confirmed by the expert evidence of Dr. Murphy, the Crown psychiatrist in the present case, as set out above. Indeed, the fact that it is common practice for judges to note specifically witness’ comments about the appearance of the accused at the relevant time indicates that this may already be a factor weighed in the assessment of whether or not the defence has satisfied its evidentiary burden in cases involving claims of automatism. I would caution, however, that the evidence of bystanders must be approached very carefully since automatism and rage may often be indistinguishable to untrained bystanders.

Another factor which trial judges should consider in assessing whether the defence has raised evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities is motive. A motiveless act will generally lend plausibility to an accused’s claim of involuntariness. Indeed, in the present case, Dr. Murphy, the Crown psychiatrist, testified that since the mind and body of a person in a dissociative state have been split, she would expect that there would usually be no connection between involuntary acts done in a state of automatism and the social context immediately preceding them. Dr. Murphy also noted that if a single person is both the trigger of the alleged automatism and the victim of the automatistic violence, the claim of involuntariness should be considered suspect. I agree that the plausibility of a claim of automatism will be reduced if the accused had a motive to commit the crime in question or if the “trigger” of the alleged automatism is also the victim. On the other hand, if the involuntary act is random and lacks motive, the plausibility of the claim of automatism will be increased. A question that trial judges should ask in assessing whether the defence has raised evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities is therefore whether or not the crime in question is explicable without reference to the alleged automatism. If this question can be answered in the negative, the plausibility of the accused’s claim of involuntariness will be heightened. Such was the case in Parks, supra, for example, where there was no explanation for why the accused would attack his “in-laws”, with whom he otherwise had a good relationship, except automatism induced by a state of somnambulism. In contrast, if this question invokes a positive response, the plausibility of the claim of involuntariness will be decreased.

To sum up, in order to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism, the defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion. However, it is an error of law to conclude that this defence burden has been satisfied simply because the defence has met these two requirements. The burden will only be met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. In reaching this conclusion, the trial judge will first examine the psychiatric or psychological evidence and inquire into the foundation and nature of the expert opinion. The trial judge will also examine all other available evidence, if any. Relevant factors are not a closed category and may, by way of example, include:  the severity of the triggering stimulus, corroborating evidence of bystanders, corroborating medical history of automatistic-like dissociative states, whether there is evidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatistic violence. I point out that no single factor is meant to be determinative. Indeed, there may be cases in which the psychiatric or psychological evidence goes beyond simply corroborating the accused’s version of events, for example, where it establishes a documented history of automatistic-like dissociative states. Furthermore, the ever advancing state of medical knowledge may lead to a finding that other types of evidence are also indicative of involuntariness. I leave it to the discretion and experience of trial judges to weigh all of the evidence available on a case by case basis and to determine whether a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.

F. Step 2:  Determining Whether to Leave Mental Disorder or Non-Mental Disorder Automatism with the Trier of Fact

Only if the accused has laid a proper foundation for a defence of automatism will it be necessary for the trial judge to determine whether mental disorder or non-mental disorder automatism should be left with the trier of fact. If the trial judge concludes that a proper foundation has not been established, the presumption of voluntariness will be effective and neither automatism defence will be available to the trier of fact. In such a case, however, the accused may still claim an independent s. 16 defence of mental disorder.

The determination of whether mental disorder or non-mental disorder automatism should be left with the trier of fact must be undertaken very carefully since it will have serious ramifications for both the individual accused and society in general. As mentioned above, mental disorder automatism is subsumed by the defence of mental disorder as set out in the Code. Accordingly, a successful defence of mental disorder automatism will result in a verdict of not criminally responsible on account of mental disorder as dictated by s. 672.34 of the Code. Under s. 672.54, an accused who receives this qualified acquittal may be discharged absolutely, discharged conditionally or detained in a hospital. In contrast, a successful defence of non-mental disorder automatism will always result in an absolute acquittal.

The assessment of which form of automatism should be left with the trier of fact comes down to the question of whether or not the condition alleged by the accused is a mental disorder. Mental disorder is a legal term. It is defined in s. 2 of the Code as “a disease of the mind”…

Taken alone, the question of what mental conditions are included in the term disease of the mind is a question of law. However, the trial judge must also determine whether the condition the accused claims to have suffered from satisfies the legal test for disease of the mind. This involves an assessment of the particular evidence in the case rather than a general principle of law and is thus a question of mixed law and fact. See Southam, supra, at paras. 35 and 36. The question of whether the accused actually suffered from a disease of the mind is a question of fact to be determined by the trier of fact. See Rabey (S.C.C.), supra, at p. 519, per Ritchie J.; Parks, supra, at p. 897, per La Forest J.; and Bratty, supra, at p. 412, per Lord Denning…

In Rabey, this Court adopted the “internal cause theory” of Martin J.A. as the primary test for determining whether automatism resulting from a psychological blow stems from a disease of the mind. The following is a portion of Martin J.A.’s explanation of this approach, which was cited with approval by the majority of this Court, at p. 519:

In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, having its source in his psychological or emotional makeup, or in some organic pathology, as opposed to a malfunctioning of the mind, which is the transient effect produced by some specific external factor such as, for example, concussion. Any malfunctioning of the mind, or mental disorder having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not) may be a ‘disease of the mind’ if it prevents the accused from knowing what he is doing, but transient disturbances of consciousness due to certain specific external factors do not fall with the concept of disease of the mind.

It is clear from Martin J.A.’s reasons that the internal cause theory starts from the proposition that the condition the accused claims to have suffered from is a disease of the mind. At pp. 21-22, he states:

The malfunctioning of the mind which the respondent suffered, although temporary, is a “disease of the mind”, unless it can be considered as a transient state produced by an external cause within the meaning of the authorities.

In my view, the ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a “disease of the mind”. [Emphasis added.]

The reasons of La Forest J. in Parks, supra, are sometimes read as reversing the Rabey notion that the disease of the mind inquiry should begin from the proposition that the condition the accused claims to have suffered from is a disease of the mind. However, La Forest J. clearly stipulated, at p. 898, that “the approach to distinguishing between insane and sane automatism was settled by this Court’s judgement in Rabey”. Furthermore, in applying the second step of the automatism analysis, La Forest J. considered whether policy factors precluded a finding of non-mental disorder automatism (p. 908). In the end, given the fact specific approach taken by this Court in Parks, I would conclude that Parks cannot be interpreted as reversing Rabey on this issue.

G. Determining Whether the Condition the Accused Claims to Have Suffered from is a Disease of the Mind

In Parks, La Forest J. recognized that there are two distinct approaches to the disease of the mind inquiry:  the internal cause theory and the continuing danger theory. He recognized the internal cause theory as the dominant approach in Canadian jurisprudence but concluded, at p. 902, that this theory “is really meant to be used only as an analytical tool, and not as an all-encompassing methodology”. This conclusion stemmed from a finding that somnambulism, the alleged trigger of the automatism in Parks, raises unique problems which are not well-suited to analysis under the internal cause theory. I agree that the internal cause theory cannot be regarded as a universal classificatory scheme for “disease of the mind”. There will be cases in which the approach is not helpful because, in the words of La Forest J., at p. 903, “the dichotomy between internal and external causes becomes blurred”. Accordingly, a new approach to the disease of the mind inquiry is in order. As I will explain below, a more holistic approach, like that developed by La Forest J. in Parks, must be available to trial judges in dealing with the disease of the mind question. This approach must be informed by the internal cause theory, the continuing danger theory and the policy concerns raised in this Court’s decisions in Rabey and Parks.

(1)  The Internal Cause Theory

The internal cause theory was developed in the context of psychological blow automatism. Under the internal cause theory, the trial judge must compare the accused’s automatistic reaction to the psychological blow to the way one would expect a normal person in the same circumstances to react in order to determine whether the condition the accused claims to have suffered from is a disease of the mind. As K. L. Campbell points out, at p. 354 of his article “Psychological Blow Automatism:  A Narrow Defence” (1980-81), 23 Crim. L. Q. 342, how can abnormality be defined in any other way but by comparison to what is normal. The words of Martin J.A. in Rabey (Ont. C.A.), supra, adopted by the majority of this Court, at p. 520, highlight this comparative approach to the disease of the mind question:

In my view, the ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a “disease of the mind”. . . . I leave aside, until it becomes necessary to decide them, cases where a dissociative state has resulted from emotional shock without physical injury, resulting from such causes, for example, as being involved in a serious accident although no physical injury has resulted; being the victim of a murderous attack with an uplifted knife, notwithstanding that the victim has managed to escape physical injury; seeing a loved one murdered or seriously assaulted, and like situations. Such extraordinary external events might reasonably be presumed to affect the average normal person without reference to the subjective makeup of the person exposed to such experience.

The nature of the alleged trigger of the automatism is at the centre of the comparison the trial judge must undertake. For example, in the context of psychological blow automatism, both the majority and dissent of this Court in Rabey recognized that a “shocking” psychological blow was required before non-mental disorder, rather than mental disorder, automatism could be left with the trier of fact. To this end, the majority adopted the above-quoted words of Martin J.A. In dissent, Dickson J. made the following comment, at p. 549:

I agree with the requirement that there be a shock precipitating the state of automatism. Dissociation caused by a low stress threshold and surrender to anxiety cannot fairly be said to result from a psychological blow.

Accordingly, in Rabey, this Court unanimously supported the notion that there is a comparative element to the disease of the mind inquiry which involves an assessment of the nature of the trigger of the alleged automatism. In effect, the trial judge must consider the nature of the trigger and determine whether a normal person in the same circumstances  might have reacted to it by entering an automatistic state as the accused claims to have done. Although I recognize that this approach will not be helpful in all cases, I believe that it remains useful in others. As such, the internal cause approach is a factor for trial judges to consider in cases in which they deem it useful. It may be helpful to provide some guidance as to how the comparison involved in the internal cause theory should be undertaken. I will do so in the context of psychological blow automatism, as I believe the internal cause approach will be most useful in cases involving automatism claims of this nature.

In his article, supra,Campbell points out that in assessing triggers of psychological blow automatism in Rabey, the majority of this Court drew the line between stressful situations and extremely shocking events. Under this approach, a finding that an alleged condition is not a disease of the mind, and consequently can support a defence of non-mental disorder automatism, is limited to cases involving triggers that normal people would find extremely shocking. Involuntariness caused by any less severe shock or mere stress is presumed to be triggered by a factor internal to the accused and as such constitutes a disease of the mind which can only give rise to a defence of mental disorder automatism (p. 357). Dickson J., in dissent, drew the line between stressful situations and mildly shocking events. Under this approach, the threshold requirement for a finding that a condition is not a disease of the mind is any shock, no matter what its severity. Only events which cannot be classified as a shock of any degree are labelled as internal, and thus diseases of the mind which can only give rise to the defence of mental disorder automatism (p. 358).

Given that the present case involves psychological blow automatism, I believe it is appropriate to express my opinion that the position of the majority in Rabey on this issue is preferable. The point of undertaking the comparison is to determine whether a normal person might have reacted to the alleged trigger by entering an automatistic state as the accused claims to have done. In cases involving claims of psychological blow automatism, evidence of an extremely shocking trigger will be required to establish that a normal person might have reacted to the trigger by entering an automatistic state, as the accused claims to have done.

When undertaking a comparison with a normal person, one is immediately faced with the difficulty of determining the importance of the context in which the comparison is made. I agree with the following comments of the High Court of Australia in Falconer, supra,on this issue (at p. 264):

In determining whether the mind of an ordinary person would have malfunctioned in the face of the physical or psychological trauma to which the accused was subjected, the psychotic, neurotic or emotional state of the accused at that time is immaterial. The ordinary person is assumed to be a person of normal temperament and self-control. Consequently, evidence that, in the week preceding the shooting, [the accused] had demonstrated fear, depression, emotional disturbance and an apparently changed personality would not have been relevant in determining the reaction of an ordinary person. Likewise, evidence of the stress that she suffered on discovering that her husband had sexually assaulted their two daughters would not have been relevant in determining the reaction of the ordinary person to the incidents which took place on the day of the shooting. But the evidence of the objective circumstances of the relationship between the parties would have been relevant to that issue, for only by considering the pertinent circumstances of that relationship could the jury determine whether an ordinary person would have succumbed to a state of dissociation similar to that which [the accused] claims overtook her on that day. Speaking generally, the issue for the jury on this aspect of the case would be whether an ordinary woman of [the accused]’s age and circumstances, who had been subjected to the history of violence which she alleged, who had recently discovered that her husband had sexually assaulted their daughters, who knew that criminal charges had been laid against her husband in respect of these matters and who were separated from her husband as a result of his relationship with another woman, would have entered a state of dissociation as the result of the incidents which occurred on the day of the shooting.

The comparison involved in the disease of the mind inquiry is thus a contextual objective test. The accused’s automatistic reaction to the alleged trigger must be assessed from the perspective of a similarly situated individual. This requires that the circumstances of the case be taken into account. However, I emphasize that this is not a subjective test.

The appellant argues that the objective element of the internal cause theory violates ss. 7 and 11(d) of the Charter. According to the appellant, the Charter requires that the focus of the disease of the mind inquiry be on the actual, subjective response of the accused rather than that of a normal person. With respect, this argument fails to recognize that the objective inquiry into whether the condition claimed by the accused is a disease of the mind is applied only after a subjective inquiry into whether there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities has been completed by the trial judge. That is, the objective standard affects only the classification of the defence rather than the assessment of whether the actus reus of the offence has been established. A similar objective standard was applied to the defence of provocation in R. v. Cameron (1992), 71 C.C.C. (3d) 272, where the Ontario Court of Appeal held that the objective standard involved in the defence of provocation does not violate ss. 7 and 11(d) because it does not detract from the mens rea required to establish murder. The point I wish to make here is that the objective component of the internal cause theory does not affect the burden of proof on the issue of whether the accused voluntarily committed the offence. Moreover, the impact of the objective comparison is limited even with regard to the disease of the mind inquiry. As noted above, I agree with La Forest J. in Parks that the internal cause theory is only an analytical tool. It is not being held out as the definitive answer to the disease of the mind question. In each case, the trial judge must determine whether and to what extent the theory is useful given the facts of the case. Indeed, he or she has the discretion to disregard the theory if its application would not accord with the policy concerns which underlie the disease of the mind inquiry. In this way, the internal cause approach attempts to strike an appropriate balance between the objectives of providing an exemption from criminal liability for morally innocent offenders and protecting the public. In these circumstances, the objective component of the internal cause theory does not limit either s. 7 or s. 11(d) of the Charter. I would add that consideration of the subjective psychological make-up of the accused in the internal cause theory would frustrate the very purpose of making the comparison, which is of course to determine whether the accused was suffering from a disease of the mind in a legal sense.

(2)  The Continuing Danger Theory

As mentioned above, both the majority and dissenting judges of this Court in Rabey, as well as La Forest J. in Parks,recognized that policy considerations are relevant to the determination of whether a claim of automatism is the result of a disease of the mind. One policy factor which is central to the disease of the mind inquiry is the need to ensure public safety. Indeed, as mentioned above, La Forest J. recognized in Parks that the second dominant approach to the disease of the mind question is the continuing danger theory. This theory holds that any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind. In other words, the likelihood of recurrence of violence is a factor to be considered in the disease of the mind inquiry. This approach must be qualified to recognize that while a continuing danger suggests a disease of the mind, a finding of no continuing danger does not preclude a finding of a disease of the mind. See Rabey, supra, at p. 15 (Ont. C.A.), per Martin J.A., and at pp. 533 and 551 (S.C.C.), per Dickson J.; Parks, supra, at p. 907, per La Forest J.

In my opinion, trial judges should continue to consider the continuing danger theory as a factor in the determination of whether a condition should be classified as a disease of the mind. However, I emphasize that the continuing danger factor should not be viewed as an alternative or mutually exclusive approach to the internal cause factor. Although different, both of these approaches are relevant factors in the disease of the mind inquiry. As such, in any given case, a trial judge may find one, the other or both of these approaches of assistance. To reflect this unified, holistic approach to the disease of the mind question, it is therefore more appropriate to refer to the internal cause factor and the continuing danger factor, rather than the internal cause theory and the continuing danger theory.

In examining the continuing danger factor, trial judges may consider any of the evidence before them in order to assess the likelihood of recurrence of violence. However, two issues will be particularly relevant to the continuing danger factor:  the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur.

As noted above, the defence must present expert psychiatric evidence in order to establish a proper foundation for a defence of automatism. The weight to be given to such evidence at the foundation stage will depend upon whether it establishes a documented history of automatistic-like dissociative states or simply confirms that a claim of automatism is plausible provided that the account of events given to the expert by the accused was accurate and truthful. The same distinction is again relevant when assessing the continuing danger factor in order to determine whether the condition the accused claims to have suffered from is a disease of the mind. Psychiatric evidence which reveals a documented history of automatistic-like dissociative states suggests that the condition alleged by the accused is of a recurring nature and thus increases the likelihood that automatism will recur. The likelihood of recurrence of violence is in turn heightened by the fact that at least one of the accused’s automatistic episodes involved violence. In such a case, the continuing danger factor indicates that the condition the accused claims to have suffered from is likely to be classified as a disease of the mind. I would note that the absence of a history of automatistic-like dissociative states in no way indicates that there will be no recurrence of violence. In such a case, the trial judge will have to determine the recurrence of violence issue through other methods, one of which may be an assessment of the likelihood of recurrence of the alleged trigger of the automatism.

In their Case Comment on R. v. Parks (1993), 72 Can. Bar Rev. 224, I. Grant and L. Spitz point out that in assessing the likelihood of recurrence of violence, courts have been asking the wrong question. Courts have been focussing on whether the accused is likely to exhibit violent behaviour if he or she were again to encounter the alleged trigger of the current automatistic episode. According to Grant and Spitz, a more appropriate question is simply whether the alleged trigger is likely to recur. Grant and Spitz reason that there is no way of accurately predicting whether actual violence will recur. Indeed the likelihood of the initial automatistic violence would generally have been remote and thus difficult to predict. In contrast, the likelihood of recurrence of the circumstances which are alleged to have given rise to the automatism is more easily predicted (see pp. 235-36).

The logic of the reasoning of Grant and Spitz is difficult to deny. Indeed, it reveals that an assessment of the likelihood that the particular accused will again encounter the trigger alleged to have caused the current automatistic episode, or a similar one of at least equal severity, may assist a judge in assessing the continuing danger factor. The greater the anticipated frequency of the trigger in the accused’s life, the greater the risk posed to the public and, consequently, the more likely it is that the condition alleged by the accused is a disease of the mind.

(3)  Other Policy Factors

There may be cases in which consideration of the internal cause and continuing danger factors alone does not permit a conclusive answer to the disease of the mind question. Such will be the case, for example, where the internal cause factor is not helpful because it is impossible to classify the alleged cause of the automatism as internal or external, and the continuing danger factor is inconclusive because there is no continuing danger of violence. Accordingly, a holistic approach to disease of the mind must also permit trial judges to consider other policy concerns which underlie this inquiry. As mentioned above, in Rabey and Parks, this Court outlined some of the policy concerns which surround automatism. I have already referred to those specific policy concerns earlier in these reasons. I repeat that I do not view those policy concerns as a closed category. In any given automatism case, a trial judge may identify a policy factor which this Court has not expressly recognized. Any such valid policy concern can be considered by the trial judge in order to determine whether the condition the accused claims to have suffered from is a disease of the mind. In determining this issue, policy concerns assist trial judges in answering the fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry: whether society requires protection from the accused and, consequently, whether the accused should be subject to evaluation under the regime contained in Part XX.1 of the Code.

H. Available Defences Following the Determination of the Disease of the Mind Question

If the trial judge concludes that the condition the accused claims to have suffered from is not a disease of the mind, only the defence of non-mental disorder automatism will be left with the trier of fact as the trial judge will have already found that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. The question for the trier of fact will then be whether the defence has proven that the accused acted involuntarily on a balance of probabilities. A positive answer to this question by the trier of fact will result in a successful defence of non-mental disorder automatism and, consequently, an absolute acquittal.

I would note that in his instructions to the jury on the voluntariness issue in cases of non-mental disorder automatism, the trial judge should begin by thoroughly reviewing the serious policy factors which surround automatism, including concerns about feignability and the repute of the administration of justice. It will also be helpful for the trial judge to refer specifically to evidence relevant to the issue of involuntariness, such as:  the severity of the triggering stimulus, corroborating evidence of bystanders, corroborating medical history of automatistic-like dissociative states, whether there is evidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatistic violence.

On the other hand, if the trial judge concludes that the alleged condition is a disease of the mind, only mental disorder automatism will be left with the trier of fact. The case will then proceed like any other s. 16 case, leaving for the trier of fact the question of whether the defence has proven, on a balance of probabilities, that the accused suffered from a mental disorder which rendered him or her incapable of appreciating the nature and quality of the act in question. As mentioned earlier, s. 16 provides a framework within which the protection of the public will be assured when mental disorder automatism is established.

The trier of fact’s determination of whether an accused has made out a successful claim of mental disorder automatism will absorb the question of whether the accused in fact acted involuntarily. That is, if the trial judge concludes that the allegation of automatism, if genuine, could only have resulted from a disease of the mind, a finding that the accused was not suffering from a mental disorder by the trier of fact necessarily extinguishes the validity of the accused’s claim of involuntariness. Viscount Kilmuir L.C. put it this way in Bratty, supra, at p. 403:

Where the possibility of an unconscious act depends on, and only on, the existence of a defect of reason from disease of the mind within the M’Naughten Rules, a rejection by the jury of this defence of insanity necessarily implies that they reject the possibility.

See also Bratty, supra, at pp. 404, 415 and 417-18; and Rabey (Ont. C.A.), supra, at pp. 24-25, per Martin J.A.

I. Application to the Present Case

At trial, the appellant claimed both mental disorder and non-mental disorder automatism. The learned trial judge concluded that the appellant had established a proper foundation for a defence of automatism, but that only mental disorder automatism should be left with the jury. In coming to these conclusions, the trial judge did not have the benefit of these reasons to guide him. Nevertheless, this does not warrant allowing the appeal because, as I explain below, the approach taken by the trial judge did not impair the appellant’s position.

In determining whether the appellant had established a proper foundation for a defence of automatism, the trial judge stated that there must be evidence of unconsciousness throughout the commission of the crime. As I have explained above, automatism is more properly defined as impaired consciousness, rather than unconsciousness. Furthermore, lack of voluntariness, rather than consciousness, is the key legal element of automatism. Accordingly, the trial judge should have concerned himself with assessing whether there was evidence that the appellant experienced a state of impaired consciousness in which he had no voluntary control over his actions rather than whether there was evidence that the appellant was unconscious throughout the commission of the crime. Obviously, unconsciousness as defined by the trial judge supposes involuntariness. However, his finding that there was evidence of unconsciousness throughout the commission of the crime may have been based on a misunderstanding of the nature of the evidentiary burden on the accused at the proper foundation stage.

In accordance with much of the jurisprudence at the time, the trial judge may have found that a proper foundation for automatism had been established because the defence had met an evidentiary burden which amounted to no more than the appellant’s claim of involuntariness and confirming expert psychiatric evidence. There is no indication that he assessed whether the defence had raised evidence on which a properly instructed jury could find that the appellant acted involuntarily on a balance of probabilities. Likewise, there is no indication that the trial judge recognized the limited weight to be accorded to the psychiatric evidence in this case, which only served to confirm that the appellant’s claim of automatism was plausible provided the account of events he provided to Dr. Janke was accurate and truthful. Nor did the trial judge discuss the relevance of motive or corroborating evidence on his conclusion that a proper foundation for automatism had been established.

Turning to the disease of the mind stage of the automatism analysis, I note that the evidence in this case raised only one alleged cause of automatism, Donna Stone’s words. Based on this evidence, the trial judge found that only mental disorder automatism should be left with the jury. This conclusion was based primarily on a finding that the present case is indistinguishable from MacLeod, supra. Such reliance on precedent fails to reveal what effect, if any, the internal cause factor, the continuing danger factor and other policy factors had on the decision to leave only mental disorder automatism with the jury. This is not in accordance with the holistic approach to the disease of the mind question set out in these reasons. However, the internal cause factor and the continuing danger factor, as well as the other policy factors set out in this Court’s decisions in Rabey and Parks all support the trial judge’s finding that the condition the appellant alleges to have suffered from is a disease of the mind in the legal sense. In particular, the trigger in this case was not, in the words of Martin J.A. quoted in this Court’s decision in Rabey, at p. 520, “extraordinary external events” that would amount to an extreme shock or psychological blow that would cause a normal person, in the circumstances of the accused, to suffer a dissociation in the absence of a disease of the mind. Accordingly, I find that the trial judge nevertheless reached the correct result on the disease of the mind question. As previously noted, in such a case, only mental disorder automatism must be put to the jury. There is no reason to go beyond the facts of this case in applying the rules discussed above.

In the end, I must conclude that no substantial wrong or miscarriage of justice occurred in the present case. Even if I had found that the trial judge erred in applying the evidentiary burden at the proper foundation stage of the automatism analysis, this error could only have benefitted the appellant. Although the trial judge did not apply the holistic approach to disease of the mind established in these reasons, he reached the correct result on this issue. There is no reasonable possibility that the verdict would have been different had the errors not been made; see R. v. Bevan, [1993] 2 S.C.R. 599. I would therefore dismiss this ground of appeal. …

VII. Conclusions and Disposition

In th[is], I have concluded that no substantial wrong or miscarriage of justice occurred. I would therefore affirm the conviction and dismiss the appeal.

 

BINNIE J. (Lamer CJC and Iacobucci and Major JJ. concurring, dissenting):—A fundamental principle of the criminal law is that no act can be a criminal offence unless it is performed or omitted voluntarily. In this case the appellant acknowledges that he killed his wife. He stabbed her 47 times with his knife in a frenzy. His defence was that he lost consciousness when his mind snapped under the weight of verbal abuse which the defence psychiatrist characterized as “exceptionally cruel” and “psychologically sadistic”. The trial judge ruled in favour of the appellant that “there is evidence of unconsciousness throughout the commission of the crime”, and the British Columbia Court of Appeal agreed ((1997), 86 B.C.A.C. 161, at p. 173) that “a properly instructed jury, acting reasonably, could find some form of automatism”….

The defence was confronted with the decision of this Court in Rabey v. The Queen, [1980] 2 S.C.R. 513, which was said to hold that unless a state of automatism can be attributed on the evidence to some cause external to the mind of the accused, it must be related to a plea of insanity.

The appellant tried to run simultaneously both the non-insane and insane branches of the automatism plea, as well as provocation. He suggested, based on an obiter dictum in Rabey, supra, that the “psychological shock” inflicted on him was of so great a magnitude that it would have unhinged the ordinary person, thus qualifying as “externally” induced automatism which had nothing to do with a disease of the mind in any organic or other medical sense. He submitted in the alternative that if, contrary to the psychiatric evidence, the courts were to insist on characterizing his condition as a disease of the mind, then a finding of NCRMD would be consistent with Dr. Janke’s evidence that the unconscious nature of his conduct excluded an “appreciation” of the consequences….

III. Analysis

A. The Automatism Issue

            This appeal raises questions about the allocation of issues between the judge and jury in the difficult area of automatism. Part of the difficulty stems from the concern of some judges that juries may be too quick to accept the story of an accused  that he or she doesn’t remember what happened, or that the conduct was “uncontrollable”, or some other feigned version of events. In R. v. Szymusiak, [1972] 3 O.R. 602 (C.A.), at p. 608, Schroeder J.A. observed that automatism is:

... a defence which in a true and proper case may be the only one open to an honest man, but it may just as readily be the last refuge of a scoundrel. It is for these reasons that a Judge presiding at a trial has the responsibility cast upon him of separating the wheat from the chaff.


In giving heed to these wise words of scepticism, the courts must nevertheless respect the allocation by Parliament to the jury the tasks of assessing credibility and the making of findings of fact. A concern that the jury may fall into error is no basis for taking away part of its jurisdiction. The central feature of this appeal is the finding of the trial judge, accepted by the British Columbia Court of Appeal, that there was “evidence of unconsciousness throughout the commission of the crime”. The appellant says he was entitled to have his case dealt with by the jury on that basis.

(1) The Evidentiary Ruling

The trial judge properly instructed himself with respect to the evidential onus. He applied the test set out by Dickson J., as he then was, in Rabey, supra, at p. 552:

In principle, the defence of automatism should be available whenever there is evidence of unconsciousness throughout the commission of the crime, that cannot be attributed to fault or negligence of his part. Such evidence should be supported by expert medical opinion that the accused did not feign memory loss and that there is no underlying pathological condition which points to a disease requiring detention and treatment.

Although given in dissent, Dickson J.’s statement of the evidential burden was subsequently adopted and applied by the majority of this Court in Parks, supra.

The trial judge properly applied the test. There is no suggestion that the appellant’s alleged state of unconsciousness, if it existed, came about through his own fault or negligence. The appellant’s evidence that he was unconscious “throughout the commission of the crime” was supported by the expert medical opinion of Dr. Janke, who said it was a “necessary component” of doing his forensic assessment to determine whether the appellant was “fabricating”. Dr. Janke went further than merely reporting what the appellant had said to him. Dr. Janke’s professional opinion was that the appellant was not fabricating his story, that the allegation of unconsciousness was corroborated to some extent by the appellant’s psychological make-up, and that it would be very difficult (albeit not impossible) for the appellant to present a story of dissociation “in a sophisticated way that would fool an experienced forensic psychiatrist”. Dr. Janke testified that the appellant suffered from no underlying pathological condition which pointed to a disease requiring detention and treatment.

The evidence on unconsciousness was somewhat equivocal, in my review of it, but I did not have the advantage of seeing and hearing the appellant or Dr. Janke, and I am not in any position to impeach the conclusion of the trial judge that:

In this case, it is my view that there is evidence of unconsciousness throughout the commission of the crime. The only evidence of recall is the recollection that came to the accused following a dream after he had gone to Mexico some days after the event.

That being the case, it seems to me that the defence has met the threshold test....  [Emphasis added.]

I agree with Bastarache J. in para. 192 of his reasons that it would be preferable to have additional corroborative evidence, such as bystanders to the event or a documented history of automatistic-like dissociative states. However, the absence of such corroboration cannot relieve the court of the duty to consider the defence that is in fact presented, warts and all. Under our system, once the evidential burden is met, the assessment of the credibility of the defence is up to the jury.

(2) Proof of the Offence

In Parks, supra, a majority of this Court observed that “voluntariness” can be seen as part of the actus reus requirement of criminal liability, per La Forest J., at p. 896:

Automatism occupies a unique place in our criminal law system. Although spoken of as a “defence”, it is conceptually a sub-set of the voluntariness requirement, which in turn is part of the actus reus component of criminal liability. [Emphasis added.]

(3) Relieving the Crown of Part of its Persuasive Burden of Proof

The Crown supports the ruling of the courts in British Columbia on a number of grounds:
(a)        the presumption of voluntariness;
(b)        the decision of this Court in Rabey, supra;
(c)        the contention that the mental disorder provisions of the Criminal Code were appropriate to resolve the automatism issue on the facts of this case.

I will address each of these Crown arguments in turn.

(a) Ground 1: The Presumption of Voluntariness
The criminal law is premised on the responsibility of sane individuals for their voluntary acts or omissions. We infer from common experience that the acts of an apparently conscious person are usually voluntary. The issue here, however, is whether such an inference of voluntariness can be drawn after the trial judge has ruled that there is credible evidence that the accused was unconscious throughout the commission of the offence.

Everyday experience for most of us does not teach whether the acts of a person in a severely impaired state of consciousness, such as sleepwalking or an epileptic fit, are voluntary. Dickson J., dissenting, stated in Rabey, supra, at p. 545, “Consciousness is a sine qua non to criminal liability”.

            (i)  Relationship between Voluntariness and Consciousness
The concepts of unconsciousness and involuntariness are linked in the definition of automatism proposed by the Ontario High Court of Justice in R. v. K. (1970), 3 C.C.C. (2d) 84, at p. 84, and adopted by a majority in this Court in Rabey, supra, at p. 518:

Automatism is a term used to describe unconscious, involuntary behaviour, the state of a person who, though capable of action is not conscious of what he is doing. It means an unconscious involuntary act where the mind does not go with what is being done. [Emphasis added.]

…[E]vidence of lack of consciousness may support a claim of automatism (i.e., that there was a lack of voluntariness). The question is, What is meant in this context by “lack of consciousness”? In the present case, the Crown psychiatrist contended that in medical terms the appellant could not be considered unconscious:

A         I’m not sure what unconscious means in the legal sense, but —
Q         In the medical sense.
A         In the medical sense, he wasn’t unconscious. Unconscious means flat out on the floor. He clearly wasn’t, from all the information that we have, unconscious in that sense.

From the legal perspective, “unconsciousness” is used in the sense that the accused, like the sleepwalker, is shown “not to have known what he was doing”. (See Parks, supra, at p. 871, and R. v. Tolson (1889), 23 Q.B.D. 168, at p. 187.)  This excludes the person who is provoked and says, “I couldn’t help myself”, or who simply professes to be at a loss to explain uncharacteristic conduct:  see generally Lord Denning in Bratty, supra, at p. 409, who there defined automatism as:

... an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleepwalking. [Emphasis added.]

Voluntary action presupposes a measure of conscious control. Dickson J. in Rabey allowed, at p. 550, that, “[a]t common law a person who engaged in what would otherwise have been criminal conduct was not guilty of a crime if he did so in a state of unconsciousness or semi-consciousness” (emphasis added). In context, however, the reference to “semi-consciousness” was to a state of diminished awareness that negated control. I think Crown counsel’s submissions in oral argument were consistent with this approach. He submitted that automatism describes “involuntary behaviour that occurs without the minimum mental element necessary to will the act”, and “[i]t is the state of a person who, though capable of action, is incapable of knowing that the act is taking place” (emphasis added). His definitions encompassed the notions of awareness and control. I agree with the Crown’s submissions in this regard…

At the same time, the evidence that the appellant recalled some weeks after the killing “stabbing twice and, then having the whooshing experience” raised an important problem for the trial judge. If it were contended that the appellant suffered a “black-out” of consciousness, and was incapable of exercising any conscious control over his actions, voluntariness would be put in issue. The appellant would have identified an explanation for his lack of control, namely that he was unconscious at the time. If, however, the appellant was conscious, even for only the initial stab wounds, he would be confronted with the presumption of voluntariness for that period of time. The trial judge dealt with this issue as follows:

During the submissions by counsel, I indicated that my review of the authorities suggested that the defence of automatism was only available in the event that there is evidence of unconsciousness throughout the entire commission of a crime. That is the language used by Chief Justice Dickson. In this case, there is some evidence that the accused was aware and was not unconscious throughout the commission of the crime. He was able to testify before the court that he recalled stabbing his wife twice in the chest. The question at issue at this stage is whether that evidence takes this case out of the realm of automatism as a matter of law.

...
On my reading of the authorities, I conclude that the authorities do not exclude the possibility of the defence of automatism being available because an accused is able to have some recollection of what occurred.

In this case, it is my view that there is evidence of unconsciousness throughout the commission of the crime. The only evidence of recall is the recollection that came to the accused following a dream after he had gone to Mexico some days after the event.

That being the case, it seems to me that the defence has met the threshold test....

The trial judge thus found, at the conclusion of a careful analysis, that a properly instructed jury, acting reasonably, could find that the appellant was unconscious “throughout the commission of the crime”. He found the evidence was capable (if believed) of satisfying the definition of automatism given by Dickson J. in Rabey. In these circumstances, “the defence of automatism should be available” (Rabey, supra, per Dickson J., at p. 552). This initial ruling was not disturbed by the British Columbia Court of Appeal. This Court is thus confronted with concurrent findings on this crucial point. The remaining issue is whether there was any legal justification for depriving the appellant of the benefit of that evidentiary ruling, and taking the issue of automatism away from the jury.

[Binnie J. then discussed the relationship between the defences of automatism and provocation, the latter of which the accused had pled in the alternative. Having differentiated the two defences and emphasized the different nature of the facts required to be proved to establish each defence, he continued:]

            (iii) Onus of Proof
My colleague Bastarache J. proposes, at para. 179, that the Court take this opportunity to add to the evidential burden on the accused a second and more onerous obstacle, namely the persuasive or legal burden on the accused to establish automatism on a balance of probabilities. The onus issue does not truly arise on the facts of the appeal. The issue of non-mental disorder automatism was not put to the jury at all, and it is superfluous to consider what ought to have been said about onus had the trial judge done what he didn’t do and, as the appeal is to be dismissed, he will never have to do in this case.

More importantly, piling the persuasive burden on top of the evidential burden represents a change in the law as settled by this Court in Parks, supra, only seven years ago. In his majority judgment in Parks, La Forest J. reproduced with approval, at p. 897, a portion of Dickson J.’s earlier dissent in Rabey. In that passage, Dickson J. was careful to emphasize that imposition of an evidential burden as a matter of policy to filter out frivolous claims did not in any way indicate that an accused carried any part of the persuasive or legal burden, whether on a balance of probabilities or otherwise. See Rabey, at p. 545:

The prosecution must prove every element of the crime charged. One such element is the state of mind of the accused, in the sense that the act was voluntary. The circumstances are normally such as to permit a presumption of volition and mental capacity. That is not so when the accused, as here, has placed before the court, by cross-examination of Crown witnesses or by evidence called on his own behalf, or both, evidence sufficient to raise an issue that he was unconscious of his actions at the time of the alleged offence. No burden of proof is imposed upon an accused raising such defence beyond pointing to facts which indicate the existence of such a condition.... [Emphasis added.]


In neither Rabey nor Parks was it suggested, much less decided, that the accused should shoulder any part of the persuasive or legal burden of proof. On the contrary, the evidential burden was put forward in both cases as a safeguard against putting the Crown too quickly or too lightly to the task of discharging the persuasive or legal burden of proof.
….
This weight of criminal practice in comparable jurisdictions would make it awkward for an attorney general to argue that a reverse onus in this case is demonstrably justified “in a free and democratic society” within the meaning of s. 1 of the Charter, but, as stated, none of the Attorneys General who appeared before us even attempted to make this argument.

I am not persuaded, in any event, that the onus of proof would be decisive on the facts of this case. There were only two witnesses supporting automatism, the accused and his medical expert. If they were disbelieved, the Crown would have had no difficulty discharging its persuasive onus. If they were believed, on the other hand, switching the persuasive onus to the defence would not have saved the prosecution from defeat.

(b)        Ground 2: The Decision of this Court in Rabey, supra
The Crown’s second principal submission is that even if it were to be found that the conduct of the appellant was involuntary, a majority of this Court in Rabey, supra, held that automatism which cannot be attributed to any external cause, such as a blow on the head, should be characterized as a disease of the mind. The Crown says that an “ordinary person” could be assumed to have the capacity to shoulder such a “psychological blow” as was here inflicted on the appellant by his wife  without dissociating. The cause of the appellant’s “dissociation”, if such it was, should therefore be attributed to a disease of the mind. The Rabey classification scheme, it was acknowledged, is not borrowed from medical science, but the Crown says it can be justified on the notion that “disease of the mind” is a legal not a medical concept. The result, says the Crown, is that, as the jury refused to accept the NCRMD plea, it was properly required to convict the accused without considering evidence (which the Court has found to be reasonably capable of belief) that the conduct was involuntary.

[Binnie J. reviewed the facts of Rabey and continued:]

Critical to the analysis of Martin J.A. was the concept that a “psychological blackout” could be attributed to one of three sources:  (1) an external cause such as a blow to the head in which case an accused would be entitled to raise non-mental disorder automatism, (2) an internal cause that would be likely to produce a similar psychological impact on a person of everyday sensibilities and psychological make-up, such as a person’s witnessing the killing of his or her own children, which could qualify as an “external” cause and which might (the point was left open) entitle an accused to plead non-mental disorder automatism, or (3) an internal cause which was triggered by no more than “the ordinary stresses and disappointments of life”. In the absence of any other credible explanation, the cause of the automatism in the third scenario would be deemed to be a “disease of the mind”. It was held in Rabey that the accused fell into this third scenario since Martin J.A. concluded that an ordinary person would not have become dissociated in such a situation. Therefore, under the three-part model, the only automatism defence open to Rabey was mental disorder automatism. A relevant consideration was the sense that “[e]xternal influences on the accused are perceived as less likely than internal ones to present a danger in the future” (I. Grant, D. Chunn and C. Boyle, The Law of Homicide (1994, loose-leaf), p. 6-118).

Martin J.A. was clearly unimpressed with the idea that a university student’s unrequited love could sustain the theory of a psychological blow causing dissociation leading to a violent assault. Rabey, he thought, was either suffering from a disease of the mind or his description of events was to be disbelieved.

            (i)  The Concept of Disease of the Mind
The Rabey analysis puts the concept of “disease of the mind” at the centre of the automatism analysis. By expanding the definition of “disease of the mind”, the courts have expanded the role of NCRMD, and contracted the area of human conduct that potentially leads to an outright acquittal on the basis of the Crown’s failure to prove the actus reus of the offence. Given this crucial control function, it is not surprising that the courts have insisted that the definition of “disease of the mind” must be a matter of law, and is not to be dictated by medical experts.

Medical input, of course, is nevertheless an essential component. As La Forest J. stated in Parks, supra, at p. 898, quoting Martin J.A. in Rabey, supra, at p. 12:

“Disease of the mind” is a legal term, not a medical term of art; although a legal concept, it contains a substantial medical component as well as a legal or policy component.
Martin J.A. described the “policy function” in Rabey, at p. 12, as relating to:

... (a) the scope of the exemption from criminal responsibility to be afforded by mental disorder or disturbance, and (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered or disturbed state.

Having regard to the policy component, Martin J.A., at p. 14 went on to demonstrate that the legal concept of “disease” of the mind includes disorders which have no organic or physical cause, and includes “purely functional disorders which, so far as is known, have no physical cause”, and may be “permanent or temporary, curable or incurable ... [or] recurring or non-recurring”. In this case the medical experts differed over whether the appellant had conscious control over his actions at the time of the killing, but they were unanimous that the appellant did not suffer from any condition that medicine would recognize as a “disease of the mind”.

            (ii) This Court’s Subsequent Decision in Parks
This Court’s decision in Rabey must now be read in light of the subsequent attempt to apply its analytical framework to the case of a sleepwalker in Parks. La Forest J. in Parks appeared to accept many of the policy considerations that preoccupied the Court in Rabey while rejecting any mechanical application of the Rabey criteria for classifying cases into what we would now call mental disorder automatism or non-mental disorder automatism.

In Parks, the accused, in a state of somnambulism, killed his mother-in-law and severely assaulted his father-in-law. The jury accepted the expert evidence that the conduct of the accused, while asleep, was involuntary. The Crown appealed the acquittal to the Ontario Court of Appeal, which affirmed the verdict, and again to this Court, which unanimously dismissed the appeal.

The Crown took the position in Parks, based on its analysis of Rabey, that somnambulism is an “internal” cause of automatism, and the accused sleepwalker would therefore have to prove on a balance of probabilities that he was NCRMD. In the course of rejecting this submission, La Forest J. in Parks identified two policy-driven considerations, namely the “continuing danger” and “internal cause” theories, at p. 901:

The continuing danger theory holds that any condition likely to present a recurring danger to the public should be treated as insanity. The internal cause theory suggests that a condition stemming from the psychological or emotional make-up of the accused, rather than some external factor, should lead to a finding of insanity. The two theories share a common concern for recurrence, the latter holding that an internal weakness is more likely to lead to recurrent violence than automatism brought on by some intervening external cause.

Sleepwalking did not fit the Rabey analysis. While possibly associated with certain external stimuli, sleepwalking springs from the workings of the internal recesses of the brain, and would therefore have to be classified by proponents of the internal cause theory as a “disease of the brain”. However, few people would equate sleepwalking with insanity. Martin J.A. sought to qualify his analysis by identifying sleepwalking as a “separate category” (at p. 17), but in Parks, La Forest J. saw sleepwalking as undermining the utility of the internal cause theory itself, which he therefore downgraded to an “analytical tool” (at p. 902).

I believe the Court was correct in Parks to dissociate itself from a mechanical application of the Rabey analysis. In the first place, an overly rigid application of the “internal cause” theory produces anomalous distinctions. In R. v. Quick, [1973] 3 All E.R. 347 (C.A.), the accused had assaulted his victim under the influence of an insulin injection, and Lawton J.A. utilized the notion of external cause (i.e., the injection) to negate the existence of a disease of the mind. On the other hand, in R. v. Hennessy (1989), 89 Cr. App. R. 10 (C.A.) it was held that the involuntary conduct of a diabetic who failed to take his insulin was internally caused (by his diabetes) and must thus be considered an expression of insanity. The differing treatment of diabetes, based on factors which have nothing to do with the underlying nature of the condition, demonstrates the potential artificiality of the analysis, and thus its limitations.

In the second place, the elastic notion of “mental disorder” can be expanded to the point where it ceases to have any utility for classification. The elasticity of use is not confined to the legal profession. E. Tollefson and B. Starkman note in their Mental Disorder in Criminal Proceedings (1993), at p. 53, the view of the Canadian Psychiatric Association that all causes of automatism are mental disorders, as they see the world. From a legal perspective, however, classification of a problem as a “mental disorder” has to be given some substantive content, or s. 16 and Part XX.1 of the Code (and its tests descended from the M’Naghten Rules (Daniel McNaghten’s Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718)) may be imposed inappropriately. As pointed out by Williams, supra, at p. 676:

The courts should eschew any effort to discourage the defence of dissociation by interpreting it as evidence of insanity, or by withholding psychiatric evidence from the jury. The defence, if supported by medical evidence, should be adjudicated upon by the triers of fact, and if successful should result in an ordinary acquittal. But what is urgently needed is that the psychiatrist who deposes to dissociation in improbable circumstances should be subjected to skilled and deeply sceptical cross-examination, and that the Crown should, where possible, call counter-evidence.

Williams’ concern about proper evidence is met, I think, by Dickson J.’s description of the evidential burden in Rabey.

Thirdly, the jurisprudential root of the “internal cause” theory is suspect. Rabey traced the doctrine to Quick, but as was also pointed out by Williams, supra, at p. 675:

To say that the presence of an external cause of mental trouble saves a man from the imputation of madness, as was held in Quick, does not imply that the absence of an external cause necessarily means that he is mad.

Fourthly, Rabey contemplated that some psychological blows could be classified as internal causes and others as external causes. Thus Ritchie J. adopted in Rabey, at p. 520, the following observation of Martin J.A. in the Ontario Court of Appeal at p. 22:

... the ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind which takes it out of the category of a “disease of the mind”. To hold otherwise would deprive the concept of an external factor of any real meaning.

Nevertheless, a psychological blow sufficient to unhinge the ordinary person could potentially open up a plea of non-mental disorder automatism, per Martin J.A. at p. 22, cited by Ritchie J., at p. 520:

I leave aside until it becomes necessary to decide them, cases where a dissociative state has resulted from emotional shock without physical injury, resulting from such causes, for example, as being involved in a serious accident although no physical injury has resulted; being the victim of a murderous attack with an uplifted knife, notwithstanding that the victim has managed to escape physical injury; seeing a loved one murdered or seriously assaulted, and the like situations. Such extraordinary external events might reasonably be presumed to affect the average normal person without reference to the subjective makeup of the person exposed to such experience. [Emphasis added.]

The introduction of an “average normal person” test would potentially inject an objective fault standard into the Crown’s burden of proof of the actus reus and mens rea, and thereby create Charter problems:  see R. v. Martineau, [1990] 2 S.C.R. 633, and Cameron, supra, at pp. 273-74, per Doherty J.A. More pertinent, for present purposes, is the point made in the dissent of Dickson J., in Rabey, at p. 548:

It is not clear to me why, as a matter of law, an emotional blow, which can be devastating, should be regarded as an external cause of automatism in some circumstances and an internal cause in others....

In short, the conceptual problems associated with the “internal cause” theory amply justify downgrading its status to an “analytical tool” (Parks, p. 902). A judicially created construct such as the “internal cause theory” does not justify taking away from the jury any case of “lack of consciousness throughout the commission of the offence” just because the accused is unable to identify a specific “external cause”. Such an accused, who has met the evidential burden of showing that his or her conduct was unconscious and involuntary should not always be absorbed into what would in his or her case be an artificial debate developed in the context of conscious conduct about whether the accused lacked the capacity to appreciate “the nature and quality of the act or omission or of knowing that it was wrong”.

The other philosophical root of the Parks analysis is the “continuing danger” theory. The law on automatism is correctly concerned with public safety, and one problem is how to assess the likelihood of recurrence of the violent conduct. As mentioned by Devlin J. in Hill v. Baxter, [1958] 1 Q.B. 277, at pp. 285-86:

For the purposes of the criminal law there are two categories of mental irresponsibility, one where the disorder is due to disease and the other where it is not. The distinction is not an arbitrary one. If disease is not the cause, if there is some temporary loss of consciousness arising accidentally, it is reasonable to hope that it will not be repeated and that it is safe to let an acquitted man go entirely free. But if disease is present, the same thing may happen again, and therefore, since 1800 (Criminal Lunatics Act, 1800), the law has provided that persons acquitted on this ground should be subject to restraint. [Emphasis added.]

The danger of recurrence was also cited by Lord Denning in Bratty, supra, at p. 410:

Suppose a crime is committed by a man in a state of automatism or clouded consciousness due to a recurrent disease of the mind. Such an act is no doubt involuntary, but it does not give rise to an unqualified acquittal, for that would mean he would be let at large to do it again. The only proper verdict is one which ensures that the person who suffers from the disease is kept secure in a hospital so as not to be a danger to himself or others. [Emphasis added.]

Dickson J., in Rabey, also sought to relate the public policy concern about insanity to the “continuing danger theory”. While neither the M’Naghten Rules nor s. 16 of the Code say anything explicitly about the danger of recurrence, the fact is that an isolated act of violent behaviour, however serious, presents different public policy issues than does conduct rooted in imbecility or other organic disease of the mind which has struck once and may prompt a further act of violence in future. The risk of recurrence is thus legitimately part of the “policy component” of the legal analysis of “disease of the mind”.

La Forest J. in Parks cited with approval, at pp. 906-07, the English Court of Appeal (Criminal Division) in R. v. Burgess, [1991] 2 All E.R. 769, at p. 774:

It seems to us that if there is a danger of recurrence that may be an added reason for categorising the condition as a disease of the mind. On the other hand, the absence of the danger of recurrence is not a reason for saying that it cannot be a disease of the mind.

Thus La Forest J. concluded, at p. 905, that the “continuing danger” theory is simply “a factor at the policy stage of the inquiry”. In the present case, neither psychiatrist considered recurrence a significant possibility.   

In the circumstances, I do not think that the majority decision in Rabey justified the courts in British Columbia in depriving the appellant of the benefit of the evidentiary ruling in his favour on the issue of involuntariness. Where, as here, the trial judge concludes that there was evidence reasonably capable of belief that the accused was in fact unconscious throughout the commission of the offence, it is not fatal if the accused fails to go on to establish a cause of that state of alleged unconsciousness which the courts can describe as “external”. As it is rare for an accused to meet even an evidential burden in this sort of case, it is not realistic to talk of a “floodgates” problem. The defence psychiatrist, trained to spot feigned symptoms, says that in his opinion the testimony of the appellant is credible, and finds the symptoms described by the appellant to be credibly related to the alleged unconsciousness. An inability to identify the mechanism of the brain that allegedly rendered him unconscious, except in the very general terms offered by Dr. Janke, may of course undermine the credibility of his story that he lost consciousness in the first place. However, the task of the appellant was to demonstrate the fact of unconsciousness (in the sense of lack of awareness and control). It was not incumbent upon him to satisfy the court as to the cause of his condition or lose the benefit of the evidentiary ruling. In effect, Rabey takes the involuntariness defence which the accused seeks to raise and substitutes for it an insanity defence which neither the accused nor the medical experts can plausibly support. At this point, it is worth reminding ourselves what Cory J. said in Daviault, at p. 91:

In my view, the mental element of voluntariness is a fundamental aspect of the crime which cannot be taken away by a judicially developed policy.

It follows, I think, that once the trial judge exercised his gatekeeper function to screen frivolous or feigned claims, it was for the jury to make up its mind on the credibility of the plea of automatism. This jurisdiction should not be removed by “judicially created policy”. It is to be expected that the jury will subject the evidence of involuntariness to appropriate scrutiny. There was discussion in Rabey about the need to maintain the credibility of the justice system. In my view, the jury is as well placed as anyone in the justice system to uphold its credibility. The bottom line is, after all, that the task of weighing the credibility of such defences was confined by Parliament to the jury. The Court should respect the allocation of that responsibility.

(c) Ground 3: The Contention that the Mental Disorder Provisions of the Criminal Code Were Appropriate to Resolve the Automatism Issue on the Facts of This Case
The third major submission on behalf of the Crown was that quite apart from this Court’s decision in Rabey the present case was correctly subjected to the NCRMD provisions of s. 16 of the Code. The Crown says that here the operating cause of the dissociation was a “disease of the mind”, giving that concept its full legal scope, and in such situations questions of involuntariness are properly subsumed into the NCRMD analysis. This is despite the fact that in this case all the experts were agreed that the appellant did not suffer from any “disease of the mind” known to medicine. I accept, as stated, that “disease of the mind” is a legal concept, but nevertheless a significant disconnection between law and medicine on this point will often impose a measure of artificiality to create the medical equivalent of trying to pound square pegs into round holes.

The issue here is not whether the law, as a matter of policy, can expand its concept of “disease of the mind” to include conduct that has traditionally been considered non-insane automatism. It can do so. The question here is quite different. We are asked to say that even if the plea of NCRMD fails, the Court will still, by an act of judicial policy, relieve the Crown of the burden of proving the most contentious element of the actus reus by taking the issue of voluntariness away from the jury.

It is true that if statements relating voluntariness to the actus reus are applied mechanically, even a violent accused suffering from a disease of the mind in which “the mind does not go with what is being done” (Rabey (S.C.C.), supra, at p. 513, quoting R. v. K., supra, at p. 84) could demand an absolute acquittal. This was the position at  common law, per Devlin J. in R. v. Kemp, [1956] 3 All E.R. 249, at p. 251:

In the eyes of the common law if a man is not responsible for his actions he is entitled to be acquitted by the ordinary form of acquittal, and it matters not whether his lack of responsibility was due to insanity or to any other cause.

In response to the public danger posed by such an outcome, and to a developing understanding of mental disorder, the courts started down the path that eventually subsumed the notion of involuntary conduct into the concept of insanity where the involuntary conduct could be identified as the product of a disease of the mind. A successful plea of insanity led to the verdict of “not guilty by reason of insanity”, which carried with it the possibility of indefinite detention at the pleasure of the state.   

The problem is that while s. 16 of the Code may provide an appropriate structure to resolve cases of medically defined “diseases of the mind”, it may not be responsive to the real issues in cases where the “disease of the mind” derives from legal classification, rather than medical classification. The view of the Canadian Psychiatric Association that all causes of automatism are mental disorders was not accompanied by any ringing endorsement that in all such cases s. 16 of the Code provides an appropriate analytical framework. The focus of the NCRMD provisions of the Code is clearly different from the focus of automatism. The latter addresses whether the conduct was voluntary. The former looks at one possible cause of automatism, and asks questions about the impact of the disease of the mind on legally relevant aspects of mental capacity.

The existence of a “disease of the mind” is a threshold issue in s. 16. The real question, to paraphrase Lord Diplock in R. v. Sullivan, [1984] A.C. 156 (H.L.), at p. 172, is whether “the effect of a disease is to impair these [mental] faculties so severely as to have either of the consequences referred to” in s. 16(1), namely whether the disease rendered the accused “incapable of appreciating the nature and quality of the act or omission or knowing that it was wrong”.

It is clear, in other words, that “the consequences referred to” in s. 16 are directed to issues other than voluntariness. There is much to be said for the observation of Professor D. Stuart in Canadian Criminal Law: A Treatise (3rd ed. 1995), at p. 108:

A “disease of the mind” is only one requirement of the legal defence of insanity. If that defence fails for any reason, surely justice dictates that the jury may consider sane automatism. MacLeod [R. v. MacLeod (1980), 52 C.C.C. (2d) 193 (B.C.C.A.)] decides that psychiatric labelling might well prevent the defence of sane automatism from being put although it is not the sole barometer of legal insanity. [Emphasis in original.]

Two further points emerge from a consideration of s. 16 of the Code. Firstly, Parliament has not alluded to whether the conduct is voluntary or involuntary. It is sufficient that the acts occurred or omissions were made at a time when the accused suffered from “a mental disorder” (defined in s. 2 as a “disease of the mind”). Secondly, Parliament addressed the capacity of the accused, not proof of the existence or absence of a particular mens rea on the particular facts. The finding of a mental disorder therefore displaces the ordinary rules governing criminal responsibility, including voluntariness, and places an accused in the grip of the statutory scheme created to deal with the individuals whom the law used to describe as “criminally insane”.

The difficulty of subsuming the issue of voluntariness into the different issue of mental disorder in cases such as the present was noted 40 years ago by Gresson P. of the New Zealand Court of Appeal in Cottle, supra, at p. 1009. In a decision much commented upon by members of the House of Lords in Bratty, supra, Gresson P., at p. 1009, expressed his concern about the M’Naghten Rules being applied to an accused who simply lacked volition:

We must accept the position as it is, but we cannot escape the difficulty that the M’Naghten Rules were never intended to apply to a case where the act was done without volition or consciousness of doing it. The M’Naghten formula takes account only of the cognitive faculties and presupposes that the doer was conscious of his actions. Nevertheless, it has become the practice to regard a person as “incapable of understanding the nature and quality” of his act when in truth he was not conscious of having acted at all; and to treat the formula as applicable to cases of automatism.... It is unfortunate that there should have been this too-liberal application of the M’Naghten Rules. [Emphasis added.]

The s. 16 question has an air of artificiality in the case of someone who claims to have been unconscious at the material time. If true, he or she not only failed to appreciate “the nature and quality of the act” but also failed to appreciate that the act was taking place at all. If false, the accused is simply untruthful. Nevertheless, the presence of a “disease of the mind” does trigger the application of s. 16, and an accused whose automatism is a product of a disease of the mind should be found NCRMD instead of being acquitted. The concept of “disease of the mind” is, and should continue to be, controlled by legal considerations rather than purely medical considerations.

At the same time, where as here medical experts for the prosecution and the defence agree that there is no “disease of the mind” known to medicine, and the only justification offered in support of attributing the conduct to mental disorder is the inability of an accused to identify an “external” cause, there is, in my view, an insufficient basis for (i) shifting the persuasive burden of proof from the Crown to the defence under s. 16, and (ii) taking the issue of non-mental disorder automatism away from the jury.

The appellant’s point is that the jury’s rejection of the plea of mental disorder automatism may have been because they disbelieved his version of events, or it may be because they thought his acts, though involuntary, were not the product of any disease of the mind. Failure to put the issue of non-mental disorder automatism thus deprived him of a potential acquittal on an issue for which the trial judge ruled he had laid a proper evidentiary foundation. It is on that basis that the appellant says the judge-made rule violates the presumption of his innocence under s. 11(d) of the Charter and took away an important element of his right under s. 11(f) of the Charter to have his fate determined by the jury. The conclusion that the issue of non-mental disorder automatism ought to have been left with the jury in this case is, I think, consistent with the observations of the majority of the members of the Australian High Court in Falconer, supra, and in particular the views of Deane and Dawson JJ. (p. 266), Toohey J. (p. 273 and p. 281), and Gaudron J. (p. 285) to the effect that evidence which credibly puts in issue the voluntariness of the acts of the accused (i.e., whether the act or omission occurred independently of the exercise of his will) must be put to the jury.

It is open to the Crown or defence to establish on a balance of probabilities a mental disorder. The Crown, of course, must follow the rule in R. v. Swain, [1991] 1 S.C.R. 933, which prevents the admission of evidence relating to mental disorder by the Crown until the defence puts in issue the mental capacity of the accused for criminal intent, as explained by Lamer C.J., at p. 976:

Thus, although it is a principle of fundamental justice that an accused has the right to control his or her own defence, this is not an “absolute” right. If an accused chooses to conduct his or her defence in such a way that that accused’s mental capacity for criminal intent is somehow put into question, then the Crown will be entitled to “complete the picture” by raising its own evidence of insanity and the trial judge will be entitled to charge the jury on s. 16. [Emphasis added.]

The same point was made by La Forest J. in Parks, supra, at p. 898, in relation to automatism:

If the accused pleads automatism, the Crown is then entitled to raise the issue of insanity, but the prosecution then bears the burden of proving that the condition in question stems from a disease of the mind; see Rabey, supra, at pp. 544-45.

If the jury were satisfied that the s. 16 requirements were met, that would end the matter:  the appellant would have been found not criminally responsible on account of mental disorder (NCRMD). He or she would not be permitted to ignore NCRMD status and seek a full acquittal on the basis of involuntariness. However, in my view, if the jury rejects NCRMD status, it should still be left with the elementary instruction that the accused is entitled to an acquittal if the Crown fails to establish beyond a reasonable doubt all of the elements of the offence, including voluntariness.

(4) Competence of the Jury

For these reasons, it is my view that, the trial judge having ruled that the appellant had successfully discharged the evidential onus, the appellant was entitled to have the issue of voluntariness put to the jury. In reaching that conclusion I have not forgotten the sceptical observation of Williams noted earlier, at pp. 673-74:

How strange, the layman may say, and how very convenient for the defendant, that this alleged state of dissociation descended on him at the very moment when he had reason for evading the police, or when he was face to face with a person whom he had a strong motive for attacking. [Emphasis added.]

It is significant that the author pointedly refers to “the layman” and suggests that the layman’s common sense would make quick work of the legal complexities conjured up by the jurisprudence on the topic of automatism. Nor have I forgotten Dickson J.’s concern about the potential for fake pleas of automatism which he expressed in Rabey at p. 546:

There are undoubtedly policy considerations to be considered. Automatism as a defence is easily feigned. It is said the credibility of our criminal justice system will be severely strained if a person who has committed a violent act is allowed an absolute acquittal on a plea of automatism arising from a psychological blow. The argument is made that the success of the defence depends upon the semantic ability of psychiatrists, tracing a narrow path between the twin shoals of criminal responsibility and an insanity verdict. Added to these concerns is the in terrorem argument that the floodgates will be raised if psychological blow automatism is recognized in law.

In part, Dickson J.’s answer to these concerns was to specify the content of the evidential burden resting on an accused, requiring (at p. 552) that the evidence of the accused

... should be supported by expert medical opinion that the accused did not feign memory loss and that there is no underlying pathological condition which points to a disease requiring detention and treatment.

Under the Dickson approach, the medical expert has to vouch for the credibility of the accused’s evidence of unconsciousness, and thus involuntariness.

More profoundly, however, I think Dickson J.’s response to these concerns was an endorsement of the role of the jury contemplated by Parliament as he expressed, for example, in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 693:

It is of course, entirely possible to construct an argument disputing the theory of trial by jury. Juries are capable of egregious mistakes and they may at times seem to be ill-adapted to the exigencies of an increasingly complicated and refined criminal law. But until the paradigm is altered by Parliament, the Court should not be heard to call into question the capacity of juries to do the job assigned to them.

to which he added, at pp. 693-94:

We should maintain our strong faith in juries which have, in the words of Sir William Holdsworth, “for some hundreds of years been constantly bringing the rules of law to the touchstone of contemporary common sense” (Holdsworth, A History of English Law (7th ed. 1956), vol. I, at p. 349).

…The jury in this case, for example, had before it the testimony of the Crown psychiatrist that the appellant’s violent response to his wife’s verbal attack was entirely too purposeful  and the loss of memory entirely too convenient to be considered “involuntary”. The members of the jury could, I think, have been counted on to exhibit powerful scepticism about such evidence. Anyone who thinks a jury of bus drivers, office workers and other practical people will be less sceptical than members of the bench or professors of law has perhaps spent insufficient time in buses or around office coffee machines.           

(5) Conclusion on the Automatism Issue

In the result, I believe the appellant was entitled to have the plea of non-mental disorder automatism left to the jury in this case in light of the trial judge’s evidentiary ruling that there was evidence the appellant was unconscious throughout the commission of the offence, for the following reasons.

Firstly, I do not accept the Crown’s argument that a judge-made classification of situations into mental disorder automatism and non-mental disorder automatism can relieve the Crown of the obligation to prove all of the elements of the offence, including voluntariness. As stated, such an interpretation encounters strong objections under s. 7 and s. 11(d) of the Charter, and there has been no attempt in this case to provide a s. 1 justification.

Secondly, imposition of a persuasive burden of proof on the appellant to establish “involuntariness” on a balance of probabilities, in substitution for the present evidential burden, runs into the same Charter problems, and no attempt has been made in the record to justify it.

Thirdly, the “internal cause” theory, on which the Crown rested its argument, cannot be used to deprive the appellant of the benefit of the jury’s consideration of the voluntariness of his action, once he had met the evidential onus, without risking a violation of s. 11(f) of the Charter. Rabey’s treatment of the internal cause theory has to be looked at in light of the decision of this Court in Parks, supra, which signalled some serious reservations about the usefulness of the “internal cause” theory, except as an “analytical tool”. Rabey, as clarified in Parks, does not impose a presumption that a lack of voluntariness must be attributed to the existence of a mental disorder any time there is no identification of a convincing external cause. Once the appellant in this case had discharged his evidential onus, he was entitled to have the issue of voluntariness go to the jury.

Fourthly, it was wrong of the courts to require the appellant to substitute for his chosen defence of involuntariness the conceptually quite different plea of insanity. One of the few points of agreement between the defence and Crown experts at trial was that the appellant did not suffer from anything that could be described medically as a disease of the mind. He was either unconscious at the time of the killing or he was not telling the truth at the time of the trial. This was a question for the jury. The statutory inquiry into whether he was “suffering from a mental disorder” that rendered him “incapable of appreciating the nature and quality of the act of omission or knowing that it was wrong” are qualitative questions that are not really responsive to his allegation that he was not conscious of having acted at all.

Finally, the evidence established that there are states of automatism where perfectly sane people lose conscious control over their actions. At that point, it was up to the jury, not the judge, to decide if the appellant had brought himself within the physical and mental condition thus identified. As Dickson C.J. observed in Bernard, supra, at p. 848, the jurors were “perfectly capable of sizing the matter up”.

IV. Disposition

In the result, I would have allowed the appeal, set aside the order of the British Columbia Court of Appeal and directed a new trial. Had I shared the conclusion of Bastarache J. to dismiss the appeal against conviction, I would also have concurred in the dismissal of the Crown’s appeal on sentence for the reasons he gives.

Appeal from conviction dismissed.

B. Inability

1. Duress

 

R. v. Carker (No. 2)
Supreme Court of Canada
[1967] 2 C.C.C. 190; [1967] S.C.R. 114

The judgment of the Court was delivered by
RITCHIE, J.:—This is an appeal by the Attorney-General of British Columbia from a judgment of the Court of Appeal of that Province, from which MacLean, J., dissented, and by which it was ordered that the respondent’s conviction, for unlawfully and wilfully damaging public property and thereby committing mischief, should be set aside and that a new trial should be had.

At the trial the respondent admitted having damaged the plumbing fixtures in the cell where he was incarcerated at Oakalla Prison Farm in British Columbia but, through his counsel, he sought to introduce evidence to show that he had committed this offence under the compulsion of threats and was therefore entitled to be excused for committing it by virtue of the provisions of s. 17 of the Criminal Code and that he was also entitled to avail himself of the common law defence of “duress” having regard to the provisions of s. 7(2) {s. 8(3)} of the Criminal Code.

Under the latter section it is provided that:

7.(2) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act. . . except in so far as they are altered by or are inconsistent with this Act or any other Act of the Parliament of Canada.” (The italics are my own.)

I agree with the learned trial Judge and with MacLean, J.A., that in respect of proceedings for an offence under the Criminal Code the common law rules and principles respecting “duress” as an excuse or defence have been codified and exhaustively defined in s. 17 which reads as follows:

17. A person who commits an offence under compulsion by threats of immediate death or grievous 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, but this section does not apply where the offence that is committed is treason, murder, piracy, attempted murder, assisting in rape, forcible abduction, robbery, causing bodily harm or arson.”

At the outset of the proceedings at the trial in the present case and in the absence of the jury, Mr. Greenfield, who acted on behalf of the accused, informed the Court that he intended to call evidence of compulsion and duress and he elected to outline the nature of this evidence which was that the offence had been committed during a disturbance, apparently organized by way of protest, to damage property at the Prison Farm in the course of which a substantial body of prisoners, shouting in unison from their separate cells, threatened the respondent, who was not joining in the disturbance, that if he did not break the plumbing fixtures in his cell he would be kicked in the head, his arm would be broken and he would get a knife in the back at the first opportunity.

The question which the learned trial Judge was required to determine on Mr. Greenfield’s application was whether the proposed evidence which had been outlined to him indicated a defence or excuse available at law; he decided that it did not and the majority of the Court of Appeal having taken a different view, the Attorney-General now appeals to this Court.

There can be little doubt that the evidence outlined by Mr. Greenfield, which was subsequently confirmed by the evidence given by the ringleaders of the disturbance in mitigation of sentence, disclosed that the respondent committed the offence under the compulsion of threats of death and grievous bodily harm, but although these threats were “immediate” in the sense that they were continuous until the time that the offence was committed, they were not threats of “immediate death” or “immediate grievous bodily harm” and none of the persons who delivered them was present in the cell with the respondent when the offence was committed. I am accordingly of opinion that the learned trial Judge was right in deciding that the proposed evidence did not afford an excuse within the meaning of s. 17 of the Criminal Code.

In the course of his most thoughtful judgment in the Court of Appeal, [[1966] 4 C.C.C. 212 at p. 224, 48 C.R. 313, S6 W.W.R. 65], Norris, J., had occasion to say:

“The question as to whether or not the person threatening was present goes to the question of the grounds for the fear which the appellant might have. In my opinion a person could be present making a threat although separated by the bars of the cell. These are all matters which should have gone to the jury, as was the question of whether or not the threat of death or grievous bodily harm was an immediate one — a question of degree. They might well consider that the threat was immediate as being continuous, as it was in this case, that it would be all the more frightening because of the uncertainty as to when it actually might happen, and therefore force him to act as he did.”

With the greatest respect it appears to me that the question of whether immediate threats of future death or grievous bodily harm constitute an excuse for committing a crime within the meaning of s. 17 and the question of whether a person can be “present” within the meaning of that section when he is locked in a separate cell from the place where the offence is committed are both questions which depend upon the construction to be placed on the section and they are therefore questions of law and not questions of fact for the jury. (See Vail v. The Queen, ex rel. Dickson, 129 C.C.C. 145, at p. 150, 26 D.L.R. (2d) 419, [1960] S.C.R. 913, 33 W.W.R. 325; Sikyea v. The Queen, [1965] 2 C.C.C. 129 at p. 131, 44 C.R. 266, [1964] S.C.R. 642.

In support of the suggestion that the threat in the present case was “immediate and continuous” Norris, J., relied on the case of Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965, in which the Privy Council decided that the trial Judge was wrong in excluding evidence of threats to which the appellant was subjected by Chinese terrorists in Malaya. In that case it was found that the threats were a continuous menace up to the moment when the appellant was captured because the terrorists might have come back at any time and carried them into effect. Section 94 of the Penal Code of the Federated Malay States, which the appellant sought to invoke in that case provided [see p. 968]:

94. Except murder and offences included in Chapter VI punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence; . . . ”

The distinctions between the Subramaniam Case and the present one lie in the fact that Subramaniam might well have had reasonable cause for apprehension that instant death would result from his disobeying the terrorists who might have come back at any moment, whereas it is virtually inconceivable that “immediate death” or “grievous bodily harm” could have come to Carker from those who were uttering the threats against him as they were locked up in separate cells, and it is also to be noted that the provisions of s.17 of the Criminal Code are by no means the same as those of s.94 of the Penal Code of the Federated Malay States; amongst other distinctions the latter section contains no provision that the person who utters the threats must be present when the offence is committed in order to afford an excuse for committing it.

Both Norris, J., and Branca, J., in delivering their separate reasons for judgment in the Court of Appeal, expressed the view that the evidence which was tendered should have been admitted on the issue of whether the respondent acted wilfully in damaging the prison plumbing or whether he was so affected by the threats uttered against him as to be incapable of adopting any other course than the one which he did.

The relevant provisions of the Criminal Code read as follows:

372.(1) {now s. 430} Every one commits mischief who wilfully
            (a) destroys or damages property . . .
(3) Every one who commits mischief in relation to public property is guilty of an indictable offence and is liable to imprisonment for fourteen years.”

On this phase of the matter, Norris, J., had this to say [pp. 225-6]:

“In making the ruling which he did, the learned trial Judge deprived the appellant of what could be a substantial defence to the charge or an excuse under s. 17. Without hearing the evidence, the jury could not decide whether the act was in fact wilful. This was not a matter on which the Judge might rule. The lengths to which the evidence might go to disprove the essentials of the charge or to prove the requirements of s. 17 could never, in the absence of the evidence of witnesses, be apparent either to the learned Judge or to the jury.”

With the greatest respect, this portion of Mr. Justice Norris’ reasons for judgment appears to overlook the fact that “the length to which the evidence might go . . .” was fully outlined to the learned Judge by counsel for the respondent when he was making the application.

In this regard it is important to bear in mind the fact that “wilful” as it is used in Part IX {Part XI} of the Criminal Code is defined in s. 371 (1) {s. 429} which reads, in part, as follows:

371.(1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event. “

The evidence outlined to the learned trial Judge discloses that the criminal act was committed to preserve the respondent from future harm coming to him, but there is no suggestion in the evidence tendered for the defence that the accused did not know that what he was doing would “probably cause” damage. Accepting the outline made by defence counsel as being an accurate account of the evidence which was available, there was in my view nothing in it to support the defence that the act was not done “wilfully” within the meaning of s. 371 (1) and 372 (1) of the Criminal Code and there was accordingly no ground to justify the learned trial Judge in permitting the proposed evidence to be called in support of such a defence.

In view of all the above, I would allow this appeal, set aside the judgment of the Court of Appeal and restore the conviction.

Appeal allowed; conviction restored.

 

R. v. Hibbert
Supreme Court of Canada
[1995] S.C.J. No. 63; [1995] 2 S.C.R. 973

The judgment of the Court was delivered by
LAMER C.J.:—
[For the facts of the case, see supra.]

II. Relevant Statutory Provisions

Criminal Code, R.S.C., 1985, c. C-46
8....(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.

17. A person who commits an offence under compulsion of 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 the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

21.(1) Every one is a party to an offence who
(a) actually commits it,
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

III. Decisions Below

Ontario Court of Justice (General Division)

Webber J. charged the jury on the defence of duress in the following terms:

If you find the Crown has not proved beyond a reasonable doubt that Hibbert did acts or omitted to do something, for the purpose of, or with the intention of aiding in the commission of the crime, he is not guilty. If you do so find the Crown has proved beyond a reasonable doubt, that situation, then Hibbert is guilty, subject, of course, to the question of duress which was addressed to you by counsel.

Duress is a common law defence available to Mr. Hibbert. The defence asserts Hibbert participated in the shooting of Cohen because he was compelled to do so. I direct you, if Hibbert joined in the common plot to shoot Cohen, under threats of death or grievous bodily harm, that would negative his having a common intention with Quasi [i.e., Bailey] to shoot Cohen, and [sic]you must find Hibbert not guilty. These threats can be expressed or implied. You look to the evidence for that particular finding. Put another way, a person whose actions have been dictated by fear of grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate. Please note that the accused cannot rely on this defence if a safe avenue of escape exists, which again, is a matter for you to find when you consider he evidence.

Finally, the onus always remains on the Crown throughout. It is their duty to negative the defence of duress. The Crown must prove beyond a reasonable doubt, their case, and if a doubt exists it must be resolved in favour of the accused.

During its deliberations, the jury sent a note to the trial judge asking the following question:

Please explain “duress” and how it may be negated, especially regarding a reasonable opportunity to escape from confinement. Thank you. The jury is unclear on this matter in order to determine a verdict.

After discussing the question with counsel, Webber J. decided to repeat the portion of his original charge that dealt with duress, and add to it portions of a standard jury charge taken from a book prepared by British Columbia judges. After an objection by the Crown, however, it was agreed that he would omit all references in the latter charge to the “reasonable person” standard. His recharge on the subject of duress proceeded as follows:

Duress is a defence available to Hibbert. The defence asserts Hibbert participated in the shooting of Cohen because he was compelled to do so. I direct you, that if Hibbert joined in the common plot to shoot Cohen under threats of death or grievous bodily harm, that would negative his having a common intention with Quasi [Bailey] to shoot Cohen and [sic] you must find Hibbert not guilty. Then I said to you, those threats can be expressed or implied, and you look to all of the evidence to determine that issue.

Put another way, a person whose actions had been dictated by fear of death or grievous bodily injury cannot be said to have formed a genuine common intention to carry out an unlawful purpose with the person who has threatened him with those consequences if he fails to co-operate. Please note, the accused cannot rely on the defence of duress if a safe avenue of escape exists, which is a question of fact for you as the judges of fact to find. I concluded my remarks to you by using these words: finally, the onus remains on the Crown throughout. It is their duty to negative the defence of duress. The Crown must prove its case beyond a reasonable doubt. If a doubt exists, it must be resolved in favour of the accused.

I add two further matters to my original charge, the first dealing with escape from the place. This ingredient of duress is that the person must not have an obvious safe avenue of escape from the person making the threat. This means that you should examine all of the evidence and determine whether Hibbert could have avoided acting as he did by running away or by seeking police protection.

Then the final point, which ties in with the matter of reasonable doubt. I will put it to you this way. The Crown must prove beyond a reasonable doubt that the defence of duress cannot succeed. The accused does not have to prove anything. …

After deliberating for nearly a day, the jury returned a verdict of not guilty on the charge of attempted murder, but convicted the appellant of the lesser included offence of aggravated assault. Webber J. subsequently sentenced him to a four-year prison term.

Ontario Court of Appeal (Houlden, Tarnopolsky and Krever JJ.A.)

The reasons of the Court of Appeal dismissing the appellant’s appeal from conviction were as follows (in their entirety):

The application to admit fresh evidence is dismissed. Counsel for the appellant concedes that, on the basis of the question from the jury, it is clear that the jury found that the appellant was subjected to compulsion, but they were concerned with whether he had a safe avenue of escape. The trial judge left it to the jury to determine whether the appellant had a safe avenue of escape. Defence counsel referred to the relevant evidence on this issue in her address to the jury, and the trial judge summarized the relevant evidence in his charge. On the facts of this case we believe that the charge on this point was sufficient. The appeal against conviction is accordingly dismissed.

The Court of Appeal went on to allow the appellant’s sentence appeal, reducing his sentence to time served (approximately fifteen months).

IV. Grounds for Appeal

Lawrence Hibbert appeals his conviction to this Court on the grounds that the trial judge’s charge to the jury on the issue of duress contained several errors. First, he argues, the trial judge erred by instructing the jury that the defence of duress operated by “negativing common intention”. The appellant objects further to the trial judge’s statement that the defence of duress was unavailable to an accused who failed to avail himself or herself of a “safe avenue of escape”. As an alternative to the latter argument, the appellant submits that even if the “safe avenue of escape” rule exists, the trial judge erred by not advising the jury that the existence or non-existence of such an avenue was to be determined by reference to the appellant’s subjective belief.

V. Analysis

A. Introduction

The issues raised in this appeal must be analysed in several stages. First, it is necessary to consider the fundamental question of why it is that a person who performs an act that would otherwise constitute the actus reus of a criminal offence will not be held criminally liable at common law if he or she did so as a result of threats of death or bodily harm. That is, we must examine the theoretical nature of the common law defence of duress, and determine its relationship to basic mens rea principles. We must also consider the question of whether the availability of the defence of duress is limited by a “safe avenue of escape” rule. Once these questions have been addressed, it will then be possible to assess the learned trial judge’s charge to the jury on duress, and to determine whether the jurors were correctly advised of the principles they were to apply in their deliberations.

B. The Relationship Between Mens rea and the Defence of Duress

(3) The Mens Rea Requirements for Party Liability under Section 21

(a) Section 21(1)(b)
I conclude that the expression “for the purpose of aiding” in s. 21(1)(b), properly understood, does not require that the accused actively view the commission of the offence he or she is aiding as desirable in and of itself. As a result, the mens rea for aiding under s. 21(1)(b) is not susceptible of being “negated” by duress. The trial judge’s charge to the jury in the present case was thus incorrect …. [I]n light of the mental element for commission of an offence under s. 21(1)(b), the suggestion that duress might “negate” the accused’s mens rea was also incorrect. …

I am satisfied that the interpretation of the mens rea for liability under s. 21(1)(b) that I am proposing will not result in unjust convictions in cases involving coercion by threats of death or bodily harm, since in these cases the common law defence of duress will remain available to the accused. [T]his defence, properly understood, provides an excuse to persons who assist in the commission of offences as a result of threats of serious violence. On the other hand, interpreting “purpose” as equivalent to “desire” in s. 21(1)(b) would result in the introduction of unnecessary complication into the law. Under such an interpretation, juries in duress cases would have to be provided with extremely complex instructions that would, in the end, have very little, if any, impact on the final determination of guilt or innocence. … As Professor Stuart observes (D. Stuart, Canadian Criminal Law (3rd ed. 1995)), introducing the notion of duress “negating” mens rea into the analysis serves only to muddy the conceptual waters. As he points out (at p. 420):

The advantages [of viewing the operation of duress solely in terms of an excuse] are more than linguistic. If the defence of duress is viewed like any other justification or excuse as based squarely on policy considerations allowing one who has committed an actus reus with mens rea to escape in certain circumstances, the policy issues are focussed without confusing the matter as one of mens rea.

C. The “Safe Avenue of Escape” Requirement in the Common Law of Duress

The second and third issues raised by the appellant have to do with the so-called “safe avenue of escape” rule. The Court must decide whether such a rule in fact exists, and, if it does, whether the availability of a “safe avenue” is to be determined on an objective or subjective basis. In my opinion, it is best to start the analysis by examining the juristic nature of the defence of duress and its relationship to other common law defences, since I am of the view that by so doing the answers to the questions posed in the present appeal will become clear.

(1) The Relation Between Duress and Other Excuses

As I have explained, the common law defence of duress, properly understood, is not based on the idea that coercion negates mens rea. Rather, it is one of a number of defences that operate by justifying or excusing what would otherwise be criminal conduct. Once duress is recognized as providing a defence of this type, it becomes apparent that much can be learned about its juristic nature by examining other existing legal excuses or justifications, such as the defences of necessity, self-defence and provocation, and by considering the extent to which analogies between these defences and the defence of duress can be drawn and sustained.

The defences of self-defence, necessity and duress all arise under circumstances where a person is subjected to an external danger, and commits an act that would otherwise be criminal as a way of avoiding the harm the danger presents. In the case of self-defence and duress, it is the intentional threats of another person that are the source of the danger, while in the case of necessity the danger is due to other causes, such as forces of nature, human conduct other than intentional threats of bodily harm, etc. Although this distinction may have important practical consequences, it is hard to see how it could act as the source of significant juristic differences between the three defences. As Lord Hailsham of Marylebone L.C. observed in Howe, supra, at p. 429:

There is, of course, an obvious distinction between duress and necessity as potential defences; duress arises from the wrongful threats or violence of another human being and necessity arises from any other objective dangers threatening the accused. This, however, is, in my view a distinction without a relevant difference, since on this view duress is only that species of the genus of necessity which is caused by wrongful threats.

In contrast, a distinction can be drawn between self-defence, on the one hand, and duress and necessity, on the other, that might well provide a basis for a meaningful juridical difference. In cases of self-defence, the victim of the otherwise criminal act at issue is himself or herself the originator of the threat that causes the actor to commit what would otherwise be an assault or culpable homicide (bearing in mind, of course, that the victim’s threats may themselves have been provoked by the conduct of the accused). In this sense, he or she is the author of his or her own deserts, a factor which arguably warrants special consideration in the law. In cases of duress and necessity, however, the victims of the otherwise criminal act (to the extent that a victim can be identified) are third parties, who are not themselves responsible for the threats or circumstances of necessity that motivated the accused’s actions. For this reason, analogies between the defence of necessity and duress would appear to be the most clearly supportable, and thus the most likely to be instructive.

The similarities between defences of duress and necessity have been noted on previous occasions by other commentators. As Lord Simon of Glaisdale observed in his dissenting reasons in Lynch, supra, at p. 692:

In the circumstances where either “necessity” or duress is relevant, there are both actus reus and mens rea . In both sets of circumstances there is power of choice between two alternatives; but one of those alternatives is so disagreeable that even serious infraction of the criminal law seems preferable. In both the consequence of the act is intended, within any permissible definition of intention. The only difference is that in duress the force constraining the choice is human threat, whereas in “necessity” it can be any circumstance constituting a threat to life (or, perhaps, limb). Duress is, thus considered, merely a particular application of the doctrine of “necessity”....

In Canada, of course, a distinction between the two defences exists as a result of the fact that the defence of duress has been partially codified (in relation to principals) by s. 17, while necessity remains a purely common law defence: Perka v. The Queen, [1984] 2 S.C.R 232. In the present case, however, we are concerned only with those cases of duress falling outside the ambit of s. 17, where the common law remains applicable—that is, cases of party liability (Paquette, supra). In my view, the clear similarities between the factual circumstances in which the common law defence of duress and the common law defence of necessity arise imply that comparisons between the two remain highly relevant, notwithstanding the existence of a partially codified version of the defence of the duress applicable in other situations. It would, I believe, be highly anomalous if the common law defence of duress were to be understood as based on substantially different juridical principles from the common law defence of necessity.

In Perka, supra, the status of the defence of necessity in the common law of Canada was firmly established. In his majority reasons, Dickson J. (as he then was) summarized the considerable debate in the academic literature over the question of whether the defence of necessity should be conceptualized as a “justification” or an “excuse”. Dickson J. described the justification-based approach to the defence of necessity in the following terms (at pp. 247-48):

As a justification, [the defence of necessity] 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 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.

He went on to reject this basis for the defence. Instead, he adopted an understanding of the defence of necessity based on the alternative concept of an “excuse”. As he declared (at pp. 248-49):

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 [Book III, 1110a (trans. D. Ross, 1975, at p. 49)] “overstrains human nature and which no one can withstand”.

Dickson J. continued by referring to the position articulated by G. Fletcher in his treatise Rethinking Criminal Law (1978). In Fletcher’s view, excuses in criminal law can best be understood as rooted in the notion of “moral or normative involuntariness”. Dickson J. approved of this theoretical foundation for excuses, stating (at p. 250):

I agree with this formulation of the rationale for excuses in the criminal law. In my view this rationale extends beyond specific codified excuse 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.

Having set out this conceptual basis for the defence of necessity, Dickson J. went on to examine the limitations on the defence’s availability that he saw as flowing naturally from its theoretical underpinnings. As he stated (at pp. 250-51):

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.

Dickson J. proceeded to establish several preconditions that must be satisfied before the defence of necessity could be invoked. He was of the view that there were three primary requirements: first, that there be an “urgent situation of clear and imminent peril”, second, that “compliance with the law [be] demonstrably impossible” and third, that there be proportionality between the danger facing the accused and the harm caused by his or her unlawful acts. Dickson J. explained the justification for the first and second requirements as follows (at pp. 251-52):

In Morgentaler [v. The Queen, [1976] l S.C.R. 616], 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.…

At 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. (emphasis in original)

As I noted earlier, the common law defences of necessity and duress apply to essentially similar factual situations. Indeed, to repeat Lord Simon of Glaisdale’s observation, “[d]uress is ... merely a particular application of the doctrine of “necessity”“. In my view, the similarities between the two defences are so great that consistency and logic requires that they be understood as based on the same juristic principles. Indeed, to do otherwise would be to promote incoherence and anomaly in the criminal law. In the case of necessity, the Court has already considered the various alternative theoretical positions available (in Perka, supra), and has expounded a conceptualization of the defence of necessity as an excuse, based on the idea of normative involuntariness. In my opinion, the need for consistency and coherence in the law dictates that the common law defence of duress also be based on this juridical foundation. If the defence is viewed in this light, the answers to the questions posed in the present appeal can be seen to follow readily from the reasons of Dickson J. in Perka.

(a) The Safe Avenue of Escape Requirement
The so called “safe avenue of escape” requirement in the law of duress is, in my view, simply a specific example of a more general requirement, analogous to that in the defence of necessity identified by Dickson J.—the requirement that compliance with the law be “demonstrably impossible”. As Dickson J. explained, this requirement can be derived directly from the underlying concept of normative involuntariness upon which the defence of necessity is based. As I am of the view that the defence of duress must be seen as being based upon this same theoretical foundation, it follows that the defence of duress includes a similar requirement—namely, a requirement that it can only be invoked if, to adopt Dickson J.’s phrase, there is “no legal way out” of the situation of duress the accused faces. The rule that the defence of duress is unavailable if a “safe avenue of escape” was open to the accused is simply a specific instance of this general requirement—if the accused could have escaped without undue danger, the decision to commit an offence becomes, as Dickson J. observed in the context of necessity, “a voluntary one, impelled by some consideration beyond the dictates of ‘necessity’ and human instincts”.

(b) Is the Existence of a Safe Avenue of Escape to Be Determined Subjectively or Objectively?
The remaining question on this appeal raises a potentially more difficult issue, namely, the question of whether the existence of a “safe avenue of escape” is to be determined objectively or on the basis of the accused’s own subjective knowledge and awareness at the time. How this question is answered depends, in my view, on how one conceives of the notion of “normative involuntariness” upon which the defence of duress is based. That is, is an action “normatively involuntary” when the actor believes that he has no real choice, or is this the case only when there is in fact no reasonable alternative course of action available?

Cogent arguments can be made in support of each of these positions. The issue can be framed in slightly different terms. As H.L.A. Hart notes:

One necessary condition of the just application of a punishment is normally expressed by saying that the agent ‘could have helped’ doing what he did, and hence the need to inquire into the ‘inner facts’ is dictated not by the moral principle that only the doing of an immoral act may be legally punished, but by the moral principle that no one should be punished who could not help doing what he did. [Emphasis in original] (Punishment and Responsibility (1968), at p. 39.)

The question of when a person “could not help doing what he did” (and thus performs a normatively involuntary act) can, however, be understood in two different ways. On the one hand, it can be argued that actors who perform acts that appear reasonable in relation to their knowledge of their surrounding circumstances “cannot help” what they did, even if their understanding of their situation is objectively unreasonable. Put another way, it can be argued that a person’s acts are normatively involuntary if he or she honestly believes there are no reasonable alternatives, even if he or she has overlooked an alternative that a reasonable person would have been aware of. On the other hand, it can also be argued that an actor’s failure to take steps to inform himself or herself of the true state of affairs is itself a choice, and that a decision based on the resulting erroneous view of the circumstances is thus not normatively involuntary, since it could have been avoided. In my opinion, the latter argument accords most closely with the view of normative involuntariness adopted by the Court in Perka, which, as I have explained, should be seen as the theoretical foundation of both the defences of duress and necessity. As Dickson J.’s reasons in Perka suggest, a degree of objectivity is inherent to excuses that are based on the notion of normative involuntariness, to the extent that this concept turns on the objective availability, or lack of availability, of true choice. Indeed, Dickson J. clearly indicates that the operative standard for the defence of necessity is to be an objective one, based on whether “there is a reasonable legal alternative to disobeying the law”.

However, simply adopting the second of the two arguments set out above does not fully resolve the issue of the standard to be applied in assessing whether a safe avenue of escape existed. Even if it is accepted that an actor’s failure to take steps to acquire reasonable knowledge of his or her full range of options can, in itself, constitute a form of choice, it can still be argued that this only holds true when the actor is able to acquire and process additional information. That is, a person does not “choose” inaction when he or she is incapable in the first place of acting, or of knowing when to act. Thus, an argument can be made for framing the objective standard used in determining the availability of alternative options, such as “safe avenues of escape”, in terms of the particular actor’s capacities and abilities. This argument reflects a more general concern about the application of the negligence standard in criminal law, which Hart, supra, has summarized in the following terms (at p. 154):

If our conditions of liability are invariant and not flexible, i.e. if they are not adjusted to the capacities of the accused, then some individuals will be held liable for negligence though they could not have helped their failure to comply with the standard.

This Court has previously indicated that when assessing the reasonableness of an accused’s conduct for the purposes of determining whether he or she should be excused from criminal responsibility, 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. For instance, in R. v. Lavallee, [1990] 1 S.C.R. 852, a self-defence case, Wilson J., writing for a majority of the Court, declared (at p. 889):

I think the question the jury must ask itself [in a case of self-defence] is whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by [her “common-law” spouse] that night except by killing him first was reasonable.

Similarly, in R. v. Pétel, [1994] 1 S.C.R. 3, at p. 12, I stated that in assessing self-defence “the jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable”.

The defences of self-defence, duress and necessity are essentially similar, so much so that consistency demands that each defence’s “reasonableness” requirement be assessed on the same basis. Accordingly, I am of the view that while the question of whether a “safe avenue of escape” was open to an accused who pleads duress should be assessed on an objective basis, the appropriate objective standard to be employed is one that takes into account the particular circumstances and human frailties of the accused.

It should be noted that the question of what sort of objective standard is to be used when assessing the “reasonableness” of the conduct of persons raising an excuse-based defence is different in several key respects from the issue that was before the Court in R. v. Creighton, [1993] 3 S.C.R 3. In that case, in the course of considering the mens rea for “unlawful act manslaughter” under s. 222(5)(a) of the Criminal Code, a majority of the Court was of the view that (at p. 61, per McLachlin J.):

[C]onsiderations of principle and policy dictate the maintenance of a single, uniform legal standard of care for [offences with a mens rea of negligence], subject to one exception: incapacity to appreciate the nature of the risk which the activity in question entails.

Although I dissented on this point in Creighton (while concurring in the result), I now consider myself bound by the majority judgment. However, I do not believe that Creighton is applicable when what is at issue is the standard of reasonableness to be used in establishing the availability of an excuse-based defence, as opposed to the determination of liability under an offence that is defined in terms of a mental state of negligence. In my view, the relevant “considerations of policy and principle” in such cases are quite different from those identifiable in the context of negligence-based offences. Offences defined in terms of negligence typically impose criminal liability on an accused person for the consequences that flowed from his or her inherently hazardous activities— activities that he or she voluntarily and willingly chose to engage in. In Creighton, supra, the majority was of the view that people “may properly be held to [a strict objective standard] as a condition of choosing to engage in activities which may maim or kill other innocent people” (p. 66). Even if a person fails to foresee the probable consequences of their freely chosen actions, these actions remain the product of genuine choice. In contrast, excuse-based defences, such as duress, are predicated precisely on the view that the conduct of the accused is involuntary, in a normative sense—that is, that he or she had no realistic alternative course of action available. In my view, in determining whether an accused person was operating under such constrained options, his or her perceptions of the surrounding facts can be highly relevant to the determination of whether his or her conduct was reasonable under the circumstances, and thus whether his or her conduct is properly excusable. …

D. Assessing the Charge to the Jury

Having set out the legal principles that, in my view, are applicable in cases such as the one at bar, what remains to be considered is whether the jurors in the present case were correctly instructed on the law they were to apply during their deliberations. I hasten to add that the law today is not what it was yesterday, as a consequence of this judgment. While certain portions of the trial judge’s instructions to the jury in the present case must now be characterized as containing “errors” as a result of the retrospective effect of the instant judgment, it must be emphasized in all fairness to my colleague the trial judge, that at the time of the trial Webber J. was simply following the course laid by this Court in Paquette, supra, which we have now revisited and altered. …

VI. Conclusion

With respect, I am of the view that the trial judge erred in his instructions to the jury on the law of duress. Since I do not believe that it can be said that this error necessarily had no impact on the jury’s verdict, I believe that there should be a new trial. Accordingly, the appeal is allowed, the appellant’s conviction is set aside, and a new trial is ordered.

 

R. v. Ruzic
Supreme Court of Canada
[2001] 1 S.C.R. 687

The judgment of the court was delivered by LEBEL J.:
1          On April 29, 1994 Marijana Ruzic, a Yugoslav citizen, landed at Pearson Airport in Toronto carrying two kilograms of heroin strapped to her body and a false Austrian passport. When the heroin was found on her, she was arrested, charged and tried for possession and use of a false passport and unlawful importation of narcotics. At trial, Ruzic successfully challenged the constitutionality of s. 17 of the Criminal Code, R.S.C. 1985, c. C-46, raised the common law defence of duress and was acquitted by a jury. The Crown appealed the acquittal without success to the Ontario Court of Appeal. This appeal now raises, as a core issue, the constitutional validity, under s. 7 of the Canadian Charter of Rights and Freedom, of s. 17 of the Criminal Code and more precisely of some of the conditions restricting the admissibility of the defence of duress. For reasons differing in part from those of the Court of Appeal, I will suggest that s. 17 of the Criminal Code be declared unconstitutional in part, that the acquittal of the respondent Ruzic be upheld and that the appeal be dismissed.

I. Facts

2          The respondent Marijana Ruzic was born in Belgrade in the former Yugoslavia. She was 21 years old when she entered Canada. When heroin was discovered on her, she was charged with three offences, two of which proceeded to trial: possession and use of a false passport contrary to s. 368 of the Criminal Code, and unlawful importation of a narcotic contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1 {the relevant statute is now The Controlled Drugs and Substances Act}.
3          Ms. Ruzic admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability. She testified that, two months before her arrival in Canada, a man named Mirko Mirkovic approached her while she was walking her dog in the streets of Belgrade, where she lived in an apartment with her mother. She described him as a “warrior” and believed he was paid to kill people in the war. An expert witness testified at trial that, in 1994, large paramilitary groups roamed Belgrade and engaged in criminal and mafia-like activities. The same expert maintained that people living in Belgrade during that period did not feel safe. They believed the police could not be trusted. There was a real sense that the rule of law had broken down.
4          From there began a series of encounters between Mirkovic and the respondent while she was walking her dog. Each time he approached her, he knew more about her, although she had shared no details of her life with him. He phoned her at home. He told her he knew her every move. Ms. Ruzic alleged that his behaviour became more and more intimidating, escalating to threats and acts of physical violence. On one occasion, he burned her arm with a lighter. On another, he stuck a syringe into her arm and injected her with a substance that smelled like heroin and made her nauseous. She indicated that these physical assaults were coupled with sexual harassment and finally threats against her mother.
5          On April 25, 1994, Mirkovic phoned the respondent and instructed her to pack a bag and meet him at a hotel in central Belgrade. Once there, he allegedly strapped three packages of heroin to her body and indicated that she was to take them to a restaurant in Toronto. He gave her the false passport, a bus ticket from Belgrade to Budapest and some money. He told her to fly from Budapest to Athens, and then from Athens to Toronto. When she protested, he warned her that, if she failed to comply, he would harm her mother.
6          Ms. Ruzic arrived in Budapest on April 26. Late that evening, she boarded a plane to Athens, where she arrived early the next day. She then purchased a ticket to Toronto. She missed that flight, exchanged her ticket for the next available flight, and left for Toronto two days later, on April 29.
7          During the two months prior to her journey to Canada, Ms. Ruzic testified that she did not tell her mother or anyone else about Mirkovic. She was afraid he would harm whoever she told. She did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her. She maintained that she followed Mirkovic’s instructions out of fear for her mother’s safety. She made no attempt while in Budapest or Athens to seek the assistance of police or other government officials. Similarly, before her arrest, she did not ask any Canadian authorities for help. She asserted that she believed the only way she could protect her mother was to obey Mirkovic’s orders. …

III. Judicial History

A. Ontario Court (General Division)

9          Ms. Ruzic was tried before Herold J. and a jury. Her main line of defence was that she acted under duress. She conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the Criminal Code. Mirkovic's threats were not of "immediate" death or bodily harm and he was not "present" when she committed the offence. Furthermore, the threats were directed at her mother. She accordingly challenged the constitutionality of s. 17 under s. 7 of the Charter, in order to raise the common law defence of duress that, in her mind, did not incorporate the requirements of immediacy and presence….

IV. Issues

16        Lamer C.J. stated the following constitutional questions:

“1. Do the requirements in s. 17 of the Criminal Code, R.S.C. 1985, c. C-46, that a threat must be of immediate death or bodily harm and from a person who is present when the offence is committed infringe the rights of an accused person as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms?
2. If the answer to Question 1 is yes, is the said infringement of the s. 7 rights a reasonable limit that can be demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms?
3. Does s. 17 of the Criminal Code, R.S.C. 1985, c. C-46, infringe the rights of an accused person as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms by precluding access to the defence of duress where the threat is to a third party?
4. If the answer to Question 3 is yes, is the said infringement of the s. 7 rights a reasonable limit that can be demonstrably justified under s. 1 of the Canadian Charter of Rights and Freedoms?”

17        The first and central question before us is thus framed in the same way that it was in the courts below: do the immediacy and presence requirements in s. 17 of the Criminal Code infringe s. 7 of the Charter, and, if so, can they be justified under s. 1?  This question raises several subsidiary matters:

- Are statutory defences owed special deference by reviewing courts?
- Is it a principle of fundamental justice that only morally voluntary conduct can attract criminal liability?
- Do the immediacy and presence requirements in s. 17 infringe this principle?  Is a broader interpretation of s. 17 possible as argued by the appellant, in order to avoid a declaration of unconstitutionality?
- What can the common law tell us on the defence of duress?
- If there is a violation of s. 7, can it be justified under s. 1?
- As an alternative question, do the immediacy and presence requirements in s. 17 infringe the principle that constitutional rights should not be restricted in a manner that is arbitrary or unfair?

18        At issue also is whether s. 17 of the Criminal Code infringes s. 7 of the Charter by precluding access to the defence of duress where the threatened harm is directed not at the accused, but at a third party. The appellant puts forth a third issue, which is whether the trial judge’s exposition of the common law defence of duress to the jury was defective.
19        Before examining each issue, it should be noted that s. 17 of the Criminal Code places another restriction on the defence. It lists 22 offences, ranging from murder and sexual assault to less serious crimes such as robbery and arson, which are excluded from the scope of the defence. Importation of narcotics, and possession and use of a false passport, do not appear on this list. Thus, this appeal does not concern the constitutional validity of the list of excluded offences.

V. Analysis

B. Is it a Principle of Fundamental Justice That Only Morally Voluntary Conduct Can Attract Criminal Liability?

27        Whether it is a principle of fundamental justice under s. 7 of the Charter that morally involuntary conduct should not be punished is a novel question before this Court. We are thus called upon to canvass once more the contents of the “principles of fundamental justice”, this time in the context of the defence of duress as framed by s. 17 of the Criminal Code.
28        The Court has on numerous occasions confirmed that the principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. Motor Vehicle Act, supra, at pp. 503 and 512. McLachlin J. (as she then was) added in R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 603, that they may be distilled from “the legal principles which have historically been reflected in the law of this and other similar states”. Whether a principle qualifies as a principle of fundamental justice depends on an analysis of its nature, sources, rationale and essential role within our evolving legal system: Re B.C. Motor Vehicle Act, supra, at p. 513. In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 590-91, Sopinka J. explained that the principles of fundamental justice must be capable of being articulated with some precision; they must be more than broad generalizations about our ethical or moral beliefs. He stated that they are the “principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice” (p. 590).
29        The notion of moral voluntariness was first introduced in Perka v. The Queen, [1984] 2 S.C.R. 232, for the purpose of explaining the defence of necessity and classifying it as an excuse. It was borrowed from the American legal theorist George Fletcher’s discussion of excuses in Rethinking Criminal Law (1978). A person acts in a morally involuntary fashion when, faced with perilous circumstances, she is deprived of a realistic choice whether to break the law. By way of illustration in Perka, Dickson J. evoked the situation of a lost alpinist who, on the point of freezing to death,  breaks into a remote mountain cabin. The alpinist confronts a painful dilemma: freeze to death or commit a criminal offence. Yet as Dickson J. pointed out at p. 249, the alpinist’s choice to break the law “is no true choice at all; it is remorselessly compelled by normal human instincts”, here of self-preservation. The Court in Perka thus conceptualized the defence of necessity as an excuse. An excuse, Dickson J. maintained, concedes that the act was wrongful, but withholds criminal attribution to the actor because of the dire circumstances surrounding its commission. He summarized the rationale of necessity in this way, at p. 250:

“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 unavoidable.”

30        Extending its reasoning in Perka to the defence of duress, the Court found in R. v. Hibbert, [1995] 2 S.C.R. 973, that it too rests on the notion of moral voluntariness. In the case of the defences of necessity and duress, the accused contends that he should avoid conviction because he acted in response to a threat of impending harm. The Court also confirmed in Hibbert that duress does not ordinarily negate the mens rea element of an offence. Like the defence of necessity, the Court classified the defence of duress as an excuse, like that of necessity. As such, duress operates to relieve a person of criminal liability only after he has been found to have committed the prohibited act with the relevant mens rea: see also Bergstrom v. The Queen, [1981] 1 S.C.R. 539, at p. 544 (per McIntyre J.).
31        Thus duress, like necessity, involves the concern that morally involuntary conduct not be subject to criminal liability. Can this notion of “moral voluntariness” be recognized as a principle of fundamental justice under s. 7 of the Charter?  Let us examine possible avenues which have been put forward by the respondent towards such recognition.

1. Moral Voluntariness and Moral Blameworthiness

32        As we will see below, this Court has recognized on a number of occasions that “moral blameworthiness” is an essential component of criminal liability which is protected under s. 7 as a “principle of fundamental justice”. The respondent in the case as bar attempts to link the principles of “moral blameworthiness” and “moral voluntariness” as a means of securing the constitutional status of the defence of duress. Laskin J.A. in the Court below has followed this line of reasoning. However, the appellant argues that “moral blamelessness” only arises in the absence of either the actus reus or the mens rea of an offence. One who acts under duress, he contends, remains a morally responsible agent whose behaviour is not blame-free. Further, the appellant submits that moral involuntariness is too vague and amorphous a concept to constitute a principle of fundamental justice.
33        This controversy about the concepts of moral blamelessness and moral involuntariness brings us back to the foundations of criminal responsibility. In the analysis of duress and of its relationship with the tenets of the criminal justice system, is it appropriate to equate moral blamelessness with moral involuntariness?
34        Even before the advent of the Charter, it became a basic concern of the criminal law that criminal responsibility be ascribed only to acts that resulted from the choice of a conscious mind and an autonomous will. In other words, only those persons acting in the knowledge of what they were doing, with the freedom to choose, would bear the burden and stigma of criminal responsibility. Although the element of voluntariness may sometimes overlap both actus reus and mens rea (see R. v. Daviault, [1994] 3 S.C.R. 63, at pp. 73-75, per Cory J.), the importance of mens rea and of the quality of voluntariness in it underscores the fact that criminal liability is founded on the premise that it will be borne only by those persons who knew what they were doing and willed it. In a recent essay, Professor H. Parent summed up the nature of what has now become a guiding principle of Canadian criminal law:

“[TRANSLATION] What is meant by a so-called “moral”or “normative” voluntary act is nothing more or less than a voluntary act taken in its accepted meaning of a free and thought out action. At the semantic level, adding the attributes “moral and “normative” to the expression “voluntary act” has become necessary in light of the state of confusion that currently arises from the coexistence of the materialist and intellectualist approaches to the voluntary act in English and Canadian criminal law. In short, the requirement of a free and thought out act is still a fundamental axiom of our criminal law system. Although the moral element attached to the individual is not, as a general rule, formally expressed in the academic literature or in reported cases, its presence can be deduced from the standard application of criminal responsibility and the various causes of exoneration. [Emphasis added.] (Responsabilite penale et troubles mentaux, Histoire de la folie en droit penal franais, anglais et canadien (1999), at p. 271.)”

See also: H. Parent, “Histoire de l’acte volontaire en droit penal anglais et canadien” (2000), 45 McGill L.J. 975, at p. 1013 ff. On the notion of mens rea generally, see G. Cote-Harper, P. Rainville and J. Turgeon, Traite de droit penal canadien (4th ed. 1998), at p. 357 ff.
35        An example of this approach may be found in the jurisprudence on the application and interpretation of offences purporting to impose an absolute responsibility on the accused. Even before the Charter came into force, through the use of techniques of interpretation, the Supreme Court had sought to restrict the application of the penal provisions of statutes that imposed absolute liability. The judgment of this Court in R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, underscores this view that absolute responsibility was inconsistent with the correct understanding of the founding principles of criminal liability. Without requiring a full mens rea, the Court decided that, generally speaking, absent very clear and explicit language to the contrary, at least a defence of due diligence should be available to the accused. This form of penal responsibility had to be grounded on an element of voluntariness, the choice left to the accused being at least that of acting with due diligence, to avoid convicting innocents (at p.1313). Dickson J. also wrote (at p. 1310):

“In sharp contrast, “absolute liability” entails conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence. There is no relevant mental element. It is no defence that the accused was entirely without fault. He may be morally innocent in every sense, yet be branded as a malefactor and punished as such.”

36        It is clear from Dickson J.’s reasons in Sault Ste. Marie that such a regime of absolute penal responsibility was deemed to breach the most basic principle of criminal liability and criminal law, and that criminal responsibility should be attributed only to an act that is the result of the deliberation of a free and conscious mind. This principle was recognized as one of the principles of fundamental justice within the meaning of s. 7 of the Charter in Re B.C. Motor Vehicle Act, supra. In that case, Lamer J. (as he then was) held the following, at p. 492:

“A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty under s. 7 of the Charter ... .”

37        That decision and the Court’s subsequent judgment in Vaillancourt, supra, were explained by McIntyre J. in R. v. Bernard, [1988] 2 S.C.R. 833, at p. 880:
“In Re B.C. Motor Vehicle Act ... and in R. v. Vaillancourt ... it was held that the requirement for a minimum mental state before the attachment of criminal liability is a principle of fundamental justice. Criminal offences, as a general rule, must have as one of their elements the requirement of a blameworthy mental state. The morally innocent ought not to be convicted.”
See also generally R. v. Martineau, [1990] 2 S.C.R. 633, and R. v. DeSousa, [1992] 2 S.C.R. 944. This idea may also be found in the reasons of Dickson J. in Perka, supra. With this background in mind, I turn to consider the respondent’s first submission, which hinges on Laskin J.A.’s assimilation of moral voluntariness to moral blameworthiness.

38        It should be emphasized that this Court, in cases like Sault Ste. Marie and Re B.C. Motor Vehicle Act, has referred to moral innocence in the context of the discussion of the mental element of an offence. Hibbert, on the other hand, held that the defence of duress does not normally negate mens rea. Rather, it operates to excuse a wrongful act once the actus reus and mens rea components of the offence have been made out. Laskin J.A. conceded this point, but countered that moral blameworthiness is a broader concept, extending beyond the traditional elements of an offence. Both Laskin J.A. and the respondent rely heavily, in this respect, on Professor Martha Shaffer’s article “Scrutinizing Duress: The Constitutional Validity of Section 17 of the Criminal Code” (1998), 40 C.L.Q. 444, in making this argument.
39        Professor Shaffer acknowledges in her article, at pp. 453-54, that moral blameworthiness is an ambiguous concept, the meaning of which this Court has not had occasion to discuss in any significant way. I am reluctant to do so here, particularly since, in my opinion, conduct that is morally involuntary is not always intrinsically free of blame. (See also R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1396-98.) Moral involuntariness is also related to the notion that the defence of duress is an excuse. Dickson J. maintained in Perka that an excuse acknowledges the wrongfulness of the accused’s conduct. Nevertheless, the law refuses to attach penal consequences to it because an “excuse” has been made out. In using the expression “moral involuntariness”, we mean that the accused had no “real” choice but to commit the offence. This recognizes that there was indeed an alternative to breaking the law, although in the case of  duress that choice may be even more unpalatable - to be killed or physically harmed.
40        Let us consider again the situation of the lost alpinist: can we really say he is blameless for breaking into somebody else’s cabin?  The State refrains from punishing him not because his actions were innocent, but because the circumstances did not leave him with any other realistic choice than to commit the offence. As Fletcher, supra, puts it, at p. 798, excuses absolve the accused of personal accountability by focussing, not on the wrongful act, but on the circumstances of the act and the accused’s personal capacity to avoid it. Necessity and duress are characterized as concessions to human frailty in this sense. The law is designed for the common man, not for a community of saints or heroes.
41        To equate moral involuntariness with moral innocence would amount to a significant departure from the reasoning in Perka and Hibbert. It would be contrary to the Court’s conceptualization of duress as an excuse. Morally involuntary conduct is not always inherently blameless. Once the elements of the offence have been established, the accused can no longer be considered blameless. This Court has never taken the concept of blamelessness any further than this initial finding of guilt, nor should it in this case. The undefinable and potentially far-reaching nature of the concept of moral blamelessness prevents us from recognizing its relevance beyond an initial finding of guilt in the context of s. 7 of the Charter. Holding otherwise would inject an unacceptable degree of uncertainty into the law. It would not be consistent with our duty to consider as “principles of fundamental justice” only those concepts which are constrained and capable of being defined with reasonable precision. I would therefore reject this basis for finding that it is a principle of fundamental justice that morally involuntary acts should not be punished.

2. Moral Voluntariness and Voluntariness in the Physical Sense

42        The respondent’s second approach, which relates moral voluntariness back to voluntariness in the physical sense, rests on firmer ground. It draws upon the fundamental principle of criminal law that, in order to attract criminal liability, an act must be voluntary. Voluntariness in this sense has ordinarily referred to the actus reus element of an offence. It queries whether the actor had control over the movement of her body or whether the wrongful act was the product of a conscious will. Although duress does not negate ordinarily actus reus per se (just as it does not ordinarily negate mens rea as we have just seen), the principle of voluntariness, unlike that of “moral blamelessness”, can remain relevant in the context of s. 7 even after the basic elements of the offence have been established. Unlike the concept of “moral blamelessness”, duress in its “voluntariness” perspective can more easily be constrained and can therefore more justifiably fall within the “principles of fundamental justice”, even after the basic elements of the offence have been established.
43        Let us examine the notion of “voluntariness” and its interplay with duress more closely. As Dickson J. stated in Rabey v. The Queen, [1980] 2 S.C.R. 513, at p. 522, “it is a basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal.” Dickson J.’s pronouncement was endorsed by the Court in R. v. Parks, [1992] 2 S.C.R. 871. The principle of voluntariness was given constitutional status in Daviault, supra, at pp. 102-3, where Cory J. held for the majority that it would infringe s. 7 of the Charter to convict an accused who was not acting voluntarily, as a fundamental aspect of the actus reus would be absent. More recently, in R. v. Stone, [1999] 2 S.C.R. 290, the crucial role of voluntariness as a condition of the attribution of criminal liability was again confirmed (at para. 1, per Binnie J., and paras. 155-58, per Bastarache J.) in an appeal concerning the defence of automatism.
44        In introducing the concept of moral voluntariness in Perka, the Court specifically linked it to the more familiar notion of physical voluntariness discussed above. Dickson J. acknowledged that the two concepts are not identical. The lost alpinist, for instance, does not act in a literally involuntary fashion; he is physically capable of avoiding the criminal act. Fletcher, supra, at p. 803, puts forth another example, more pertinent to the defence of duress. Suppose someone puts a knife in the accused’s hand and forces it into the victim’s chest. The accused’s body is literally overpowered, as is her will. Consider next the situation of someone who gives the accused a knife and orders her to stab the victim or else be killed herself. Unlike the first scenario, moral voluntariness is not a matter of physical dimension. The accused here retains conscious control over her bodily movements. Yet, like the first actor, her will is overborne, this time by the threats of another. Her conduct is not, in a realistic way, freely chosen.
45        What underpins both of these conceptions of voluntariness is the critical importance of autonomy in the attribution of criminal liability: Perka, supra, at pp. 250-51; Fletcher, supra, at p. 805. The treatment of criminal offenders as rational, autonomous and choosing agents is a fundamental organizing principle of our criminal law. Its importance is reflected not only in the requirement that an act must be voluntary, but also in the condition that a wrongful act must be intentional to ground a conviction. Sault Ste. Marie, Re B.C. Motor Vehicle Act, and Vaillancourt all stand for the proposition that a guilty verdict requires intentional conduct or conduct equated to it like recklessness or gross negligence. Like voluntariness, the requirement of a guilty mind is rooted in respect for individual autonomy and free will and acknowledges the importance of those values to a free and democratic society: Martineau, supra, at pp. 645-46. Criminal liability also depends on the capacity to choose - the ability to reason right from wrong. As McLachlin J. observed in Chaulk, supra, at p. 1396, in the context of the insanity provisions of the Criminal Code, this assumption of the rationality and autonomy of human beings forms part of the essential premises of Canadian criminal law:

“At the heart of our criminal law system is the cardinal assumption that human beings are rational and autonomous: G. Ferguson, “A Critique of Proposals to Reform the Insanity Defence” (1989), 14 Queen’s L.J. 135, at p. 140. This is the fundamental condition upon which criminal responsibility reposes. Individuals have the capacity to reason right from wrong, and thus to choose between right and wrong. Ferguson continues (at p. 140):

It is these dual capacities - reason and choice - which give the moral justification to imposing criminal responsibility and punishment on offenders. If a person can reason right from wrong and has the ability to choose right or wrong, then attribution or responsibility and punishment is morally justified or deserved when that person consciously chooses wrong.”

46        Punishing a person whose actions are involuntary in the physical sense is unjust because it conflicts with the assumption in criminal law that individuals are autonomous and freely choosing agents: see Shaffer, supra, at pp. 449-50. It is similarly unjust to penalize an individual who acted in a morally involuntary fashion. This is so because his acts cannot realistically be attributed to him, as his will was constrained by some external force. As Dennis Klimchuk states in “Moral Innocence, Normative Involuntariness, and Fundamental Justice” (1998), 18 C.R. (5th) 96, at p. 102, the accused’s agency is not implicated in her doing. In the case of morally involuntary conduct, criminal attribution points not to the accused but to the exigent circumstances facing him, or to the threats of someone else. Klimchuk explains at p. 104:

“In short, normatively involuntary actions share with actions that are involuntary in the sense relevant to negating actus reus the exculpatorily relevant feature that renders the latter immune from criminal censure, namely, that involuntary actions resist imputation to the actor putatively responsible for their commission.”

47        Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, similarly to physical involuntariness, deserves protection under s. 7 of the Charter. It is a principle of fundamental justice that only voluntary conduct - behaviour that is the product of a free will and controlled body, unhindered by external constraints - should attract the penalty and stigma of criminal liability. Depriving a person of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice. The ensuing deprivation of liberty and stigma would have been imposed in violation of the tenets of fundamental justice and would thus infringe s. 7 of the Charter.

C. Do the Immediacy and Presence Requirements in Section 17 Infringe the Principle of Involuntariness in the Attribution of Criminal Responsibility? 

48        It remains to be seen whether s. 17 respects this guiding principle of criminal justice that demands that society refrain from punishing morally involuntary action. The respondent argues that s. 17 of the Criminal Code does indeed infringe s. 7 of the Charter by reason of its underinclusiveness. The strictness of the immediacy and presence requirements in s. 17 means that individuals could be found guilty of involuntary actions.
49        Section 17 limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed. To counter the respondent’s arguments, the appellant’s key submission was that s. 17 is capable of being read down in a way that would make it less restrictive and more consistent with the Charter. The appellant argues that the immediacy and presence requirements do not dictate that the threatener be physically present at the scene of the crime. Rather, they require a temporal connection between the commission of the offence and the threatener’s presence, in the sense that the threatener must be able to execute the threat immediately should the accused fail to comply. The respondent replies that the appellant’s proposed interpretation would stretch the language of s. 17 beyond recognition. As counsel for one of the interveners put it during the hearing of this appeal, it would amount to construing presence as absence and immediate as sometime later.
50        The plain meaning of s. 17 is quite restrictive in scope. Indeed, the section seems tailor-made for the situation in which a person is compelled to commit an offence at gun point. The phrase “present when the offence is committed”, coupled with the immediacy criterion, indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist. Practically speaking, a threat of harm will seldom qualify as immediate if the threatener is not physically present at the scene of the crime.
51        The Court has in the past construed s. 17 in a narrow fashion. R. v. Carker [1967] S.C.R. 114, and Paquette v. The Queen, [1977] 2 S.C.R. 189, are the two leading cases on the interpretation of s. 17. The accused in Carker was an inmate at a prison in British Columbia. He damaged the plumbing fixtures in his cell during a prison riot and was charged with public mischief. At trial, he conceded that he committed the offence, but asserted that he was acting under the compulsion of threats by other prisoners that he would be physically injured or killed if he did not participate in the riot. Ritchie J. maintained that the defence of duress was not available to Mr. Carker, as the other prisoners were not present in his cell when he committed the offence but rather locked in their own cells. In addition, Ritchie J. found the threat was of future harm, as the prisoners, who were locked in separate cells, were unable to carry out their threat immediately, had Mr. Carker resisted.
52        The Court’s reasons in Carker reveal that the words “immediate” and “present” impose both temporal and spatial limitations on the defence. They indicate that the threat of harm must be contemporaneous with the commission of the offence, in the sense that it must be capable of immediate execution if the accused refuses to comply. In addition, Carker clearly implies that the threatener must be present at the scene of the crime. The following passage from Martland J.’s reasons in Paquette, at p. 193, appears to confirm this interpretation of s. 17 as requiring the threatener to be present both when and where the offence is committed:

“In my opinion the application of s. 17 is limited to cases in which the person seeking to rely upon it has himself committed an offence. If a person who actually commits the offence does so in the presence of another party who has compelled him to do the act by threats of immediate death or grievous bodily harm, then, if he believes the threats would be carried out, and is not a party to a conspiracy whereby he is subject to such compulsion, he is excused for committing the offence. [Emphasis added.]”

Carker and Paquette state clearly that s. 17 means the threatener must be physically present at the scene of the offence, at the time it takes place, otherwise the defence of duress is not available to the accused.
53        I agree with the respondent that a threat will seldom meet the immediacy criterion if the threatener is not physically present at or near the scene of the offence. The immediacy and presence requirements, taken together, clearly preclude threats of future harm.
54        Neither the words of s. 17 nor the Court’s reasons in Carker and Paquette dictate that the target of the threatened harm must be the accused. They simply require that the threat must be made to the accused. Section 17 may thus include threats against third parties. However, as discussed above, the language of s. 17 does not appear capable of supporting a more flexible interpretation of the immediacy and presence requirements. Even if the threatened person, for example, is a family member, and not the accused person, the threatener or his accomplice must be at or near the scene of the crime in order to effect the harm immediately if the accused resists. Thus, while s. 17 may capture threats against third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations.
55        Thus, by the strictness of its conditions, s. 17 breaches s. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable.

D. The Common Law of Duress


5. Summary: Rejection of the Immediacy Requirement at Common Law

86        This review of the common law defence of duress confirms that, although the common law is not unanimous in the United States, a substantial consensus has grown in Canada, England and Australia to the effect that the strict criterion of immediacy is no longer a generally accepted component of the defence. A requirement that the threat be “imminent” has been interpreted and applied in a more flexible manner. The English Court of Appeal held in Hudson that depending on the circumstances, threats of future harm are sufficient to invoke the defence. Hudson remains good law in England and has been adopted by the courts in three Australian states and one territory. However, it is clear from the English cases that there must be a close temporal link between the threat of harm and the commission of the offence. The operative test in the English and Australian cases is whether the threat was effective to overbear the accused’s will at the moment he committed the crime. Moreover, the safe avenue of escape test and the proportionality principle also appear to be key elements of the defence.

E. The Breach of Section 7 of the Charter: Conclusion in the Case at Bar

87        At the heart of Laskin J.A.’s decision is a concern that the immediacy and presence requirements are poor substitutes for the safe avenue of escape test at common law. In his view, their focus on an instantaneous connection between the threat and the commission of the offence misses the point in a number of special cases. He highlights two situations in particular. The first is the battered woman who is coerced by her abusive partner to break the law. Even though her partner is not present when she commits the offence and is therefore unable to execute it immediately, a battered woman may believe nonetheless that she has no safe avenue of escape. Her behaviour is morally involuntary, yet the immediacy and presence criteria, strictly construed, would preclude her from resorting to s. 17. There may also be other situations in which a person is so psychologically traumatized by the threatener that he complies with the threat, even though it was not immediate and to the objective observer, there was a legal way out. The second scenario described by Laskin J.A. is the case of a person like Ms. Ruzic, for whom effective police protection was unavailable. Do the immediacy and presence requirements demand that a person go to the authorities if he has the opportunity to do so, even when he believes it would be useless or even dangerous to do so?  It should be noted that in this second scenario, a court might face a delicate task in assessing the validity of a claim that, in a foreign land, no police protection was available. It illustrates some of the difficulties in the practical implementation of a defence of duress which involves a risk of abuse through unverifiable assertions of danger and harm.
88        Nevertheless, s. 17’s reliance on proximity as opposed to reasonable options as the measure of moral choice is problematic. It would be contrary to the principles of fundamental justice to punish an accused who is psychologically tortured to the point of seeing no reasonable alternative, or who cannot rely on the authorities for assistance. That individual is not behaving as an autonomous agent acting out of his own free will when he commits an offence under duress.
89        The appellant’s attempts at reading down s. 17, in order to save it, would amount to amending it to bring it in line with the common law rules. This interpretation badly strains the text of the provision and may become one more argument against upholding its validity.
90        The underinclusiveness of s. 17 infringes s. 7 of the Charter, because the immediacy and presence requirements exclude threats of future harm to the accused or to third parties. It risks jeopardizing the liberty and security interests protected by the Charter, in violation of the basic principles of fundamental justice. It has the potential of convicting persons who have not acted voluntarily.

F. Can the Infringement Be Justified Under s. 1?

91        Having found  that the immediacy and presence requirements infringe s. 7 of the Charter, I turn now to consider whether the violation is a demonstrably justifiable limit under s. 1. The government, of course, bears the burden of justifying a Charter infringement. Consistent with its strategy in the courts below, the appellant made no attempt before this Court to justify the immediacy and presence criteria according to the s. 1 analysis. I therefore conclude at the outset that the appellant has failed to satisfy its onus under s. 1.
92        Moreover, it is well established that violations of s. 7 are not easily saved by s. 1: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 99. Indeed, the Court has indicated that exceptional circumstances, such as the outbreak of war or a national emergency, are necessary before such an infringement may be justified: R. v. Heywood, [1994] 3 S.C.R. 761, at p. 802; Re B.C. Motor Vehicle Act, supra. No such extraordinary conditions exist in this case. Furthermore, I am inclined to agree with Laskin J.A. that the immediacy and presence criteria would not meet the proportionality branch of the s. 1 analysis. In particular, it seems to me these requirements do not minimally impair the respondent’s s. 7 rights. Given the appellant’s failure to make any submissions on the issue, the higher standard of justification for a violation of s. 7, and my doubts concerning proportionality, I conclude that the immediacy and presence conditions cannot be saved by s. 1.

G. Alternatively, Do the Immediacy and Presence Requirements in Section 17 Infringe the Principle That Rights Should Not Be Restricted in a Manner That Is Arbitrary or Unfair?

93        Laskin J.A. found, in the alternative, that s. 17 infringes s. 7 of the Charter because the presence and immediacy requirements are arbitrary and inconsistent with the government’s objective of excusing morally involuntary behaviour. On the view I take of the interpretation of s. 17, I need not address this argument. I prefer to ground the partial striking down of s. 17 on the fundamental principle that criminal liability should not be ascribed to physically or morally involuntary behaviour.

H. The Jury Charge

94        I turn last to consider the trial judge’s instructions to the jury on the common law defence of duress. Herold J. repeated the elements of the common law defence several times as follows:

“There are four ingredients that must be met before the law will excuse a crime because the accused was acting under duress. …
One:    acts solely as a result of threats of death, or serious bodily harm to herself or another person.
Two:    the threats were of such gravity or seriousness that the accused believed that the threats would be carried out.
Three: the threats were of such gravity that they might well have caused a reasonable person placed in the same situation as the accused, to act in the same manner as she did.
To put that another way, would a person of reasonable firmness, sharing the characteristics of the accused, such as her age and her background, have responded to the threats.
Finally, the accused must not have had an obvious safe avenue of escape.”

Later, the judge told the jury that “the threats must be such that they are operating on the mind of the accused at the time that she does what she has been charged with doing.”
95        The appellant points to four deficiencies in the trial judge’s charge to the jury, which, it must be said, were never  raised by the Crown when Herold J. gave his instructions at trial. First, the appellant argues that the trial judge failed to instruct the jury on the imminence requirement of the defence. Second, the appellant argues that he erred in his explanation of the safe avenue of escape test. The appellant maintains that he should have directed the jury to consider whether Ms. Ruzic had “any” legal way out of her predicament, not just an “obvious” safe avenue of escape. Third, the appellant maintains that the trial judge introduced unduly subjective elements into his charge to the jury on the standard to assess duress. Last, the appellant asserts that the trial judge misdirected the jury on the burden of proving duress. In effect, the appellant is urging the Court to shift the legal onus of proof from the Crown onto the shoulders of the accused, who would be responsible for proving duress, on a balance of probabilities.
96        In the future, when the common law defence of duress is raised, the trial judge should instruct the jury clearly on the components of this defence including the need for a close temporal connection between the threat and the harm threatened. The jury’s attention should also be drawn to the need for the application of an objective-subjective assessment of the safe avenue of escape test.
97        Nevertheless, the perusal of the charge reveals that the deficiencies raised by the appellant were nowhere to be seen. Viewed in its entirety, the trial judge’s charge explained adequately the elements of the defence of duress at common law to the members of the jury.
98        The charge contained all the elements required by the common law rules on duress. The criterion of the safe avenue of escape was well explained as was the objective component of this test. Notwithstanding the argument of the appellant, the law does not require an accused to seek the official protection of police in all cases. The requirement of objectivity must itself take into consideration the special circumstances where the accused found herself as well as her perception of them. Herold J. drew the attention of the jury both to that objective component and to the subjective elements of the defence. This argument must thus fail.
99        As to the immediacy of the threat, as Laskin J.A.’s reasons point out, Herold J. brought home to the jury the fact that the threat had to be a  real threat affecting the accused at the time of the offence. This instruction at least implied that the jury had to consider the temporal connection between the threat and the harm threatened, although it would have been preferable to say so in so many express words.
100      There was no misdirection either on the burden of proof. The accused must certainly raise the defence and introduce some evidence about it. Once this is done, the burden of proof shifts to the Crown under the general rule of criminal evidence. It must be shown, beyond a reasonable doubt, that the accused did not act under duress. Similarly, in the case of the defence of necessity, the Court refused to shift the burden of proof to the accused (see Perka, supra, pp. 257-59), although the defence must have an air of reality, in order to be sent to the jury, as the Court held in Latimer, supra.

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LRCC § 3(8)

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MPC § 2.09

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StGB § 35 (Necessity as Excuse)

 

      2. Provocation (Homicide)

 

R. v. Hill
Supreme Court of Canada
[1986] 1 S.C.R. 313

DICKSON C.J.C.:— Gordon James Elmer Hill was charged with committing first degree murder at the City of Belleville, County of Hastings, on the person of Verne Pegg, contrary to s. 218(1) {s. 231(1)} of the Criminal Code, R.S.C. 1970, c. C-34. He was found by the jury not guilty of first degree murder but guilty of second degree murder. He was sentenced to imprisonment for life without eligibility for parole until ten years of his sentence had been served.

Hill appealed his conviction to the Court of Appeal of Ontario. He raised many grounds of appeal, but the Court of Appeal called upon the Crown with respect to one ground only, relating to the charge on the issue of provocation. The ground of appeal was that the trial judge failed to instruct the jury properly as to the “ordinary person” in s.215(2) of the Criminal Code. Section 215 {now s. 232} of the Code reads in part:

215.(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted upon it on the sudden and before there was time for his passion to cool.

These two subsections, given their plain meaning, produce three sequential questions for answer by the tribunal:

1. Would an ordinary person be deprived of self-control by the act or insult?
2. Did the accused in fact act in response to those “provocative” acts; in short was he or she provoked by them whether or not an ordinary person would have been?
3. Was the accused’s response sudden and before there was time for his or her passion to cool?
At this stage it is important to recall the presence of subs. (3) of s.215 which provides:
(3) For the purposes of this section the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
are questions of fact, ...

In the answering of these successive questions, the first or ‘ordinary person’ test is clearly determined by objective standards. The second de facto test as to the loss of self-control by the accused is determined, like any other question of fact as revealed by the evidence, from the surrounding facts. The third test as to whether the response was sudden and before passions cooled is again a question of fact.

At the time of the killing, Hill was a male, sixteen years of age. The narrow question in this appeal is whether the trial judge erred in law in failing to instruct the jury that if they found a wrongful act or insult they should consider whether it was sufficient to deprive an ordinary person “of the age and sex of the appellant” of his power of self-control. Was it incumbent in law on the trial judge to add that gloss to the section? That is the issue.

I. The Facts

At trial both parties agreed that it was the acts of Hill which caused the death of Pegg but disagreed otherwise. The position of the Crown at trial was that Hill and Pegg were homosexual lovers and that Hill had decided to murder Pegg after a falling out between them. The Crown argued that Hill deliberately struck Pegg in the head while Pegg lay in bed. This did not kill Pegg who immediately ran from the bedroom into the bathroom to try and stop the flow of blood from his head. Realizing he had been unsuccessful, Hill took two knives from the kitchen and stabbed Pegg to death.

Hill’s version of the events was very different. He admitted to causing the death of Pegg but put forward two defences: self-defence and provocation. Hill testified that he had known Pegg for about a year through the latter’s involvement with the “Big Brothers” organization. Hill said that on the night in question he had been the subject of unexpected and unwelcome homosexual advances by Pegg while asleep on the couch in Pegg’s apartment. Pegg pursued Hill to the bathroom and grabbed him, at which time Hill picked up a nearby hatchet and swung it at Pegg in an attempt to scare him. The hatchet struck Pegg in the head. Hill then ran from the apartment but returned shortly afterward. Upon re-entering the apartment, he was confronted by Pegg who threatened to kill him. At this point, Hill obtained two knives from the kitchen and stabbed Pegg to death.

Hill was arrested, after a car chase with the police, at the wheel of a Pontiac automobile owned by Pegg. At the scene of arrest Hill denied knowing Pegg, but later he made a statement to the police which was substantially similar to his oral testimony at trial....

II. The Charge

… At trial, counsel for Hill objected to the instruction of the trial judge as to the objective requirement of the defence of provocation, submitting that the “ordinary person” referred to in s.215(2) ought to have been defined as an ordinary person of the age and sex of the accused. Counsel submitted that the objective requirement would be satisfied if the judge were to recharge the jury by defining “ordinary person” as an “ordinary person in the circumstances of the accused”. The judge refused to recharge the jury in those terms....

IV. The Issue

The issue in this appeal is whether the Ontario Court of Appeal erred in law in holding that the trial judge erred in law with respect to the elements of the objective test relevant to the defence of provocation in failing to direct the jury that the “ordinary person” within the meaning of that term in s.215(2) of the Criminal Code was an “ordinary person of the same age and sex as the accused”.

V. The Defence of Provocation

The defence of provocation appears to have first developed in the early 1800’s. Tindal C.J. in R. v. Hayward (1833), 6 C. & P.157, at p. 158, told the jury that the defence of provocation was derived from the law’s “compassion to human infirmity”. It acknowledged that all human beings are subject to uncontrollable outbursts of passion and anger which may lead them to do violent acts. In such instances, the law would lessen the severity of criminal liability.

Nevertheless, not all acts done in the heat of passion were to be subject to the doctrine of provocation. By the middle of the nineteenth century, it became clear that the provoking act had to be sufficient to excite an ordinary or reasonable person under the circumstances. As Keating J. stated in R. v. Welsh (1869), 11 Cox C.C. 336, at p. 338:

The law is, that there must exist such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion.

The Criminal Code codified this approach to provocation by including under s.215 three general requirements for the defence of provocation. First, the provoking wrongful act or insult must be of such a nature that it would deprive an ordinary person of the power of self-control. That is the initial threshold which must be surmounted. Secondly, the accused must actually have been provoked. As I have earlier indicated, these two elements are often referred to as the objective and subjective tests of provocation respectively. Thirdly, the accused must have acted on the provocation on the sudden and before there was time for his or her passion to cool.

(a) The Objective Test of Provocation and the Ordinary Person Standard


(iii) The Appropriate Content of the Ordinary Person Standard
What lessons are to be drawn from this review of the case law? I think it is clear that there is widespread agreement that the ordinary or reasonable person has a normal temperament and level of self-control. It follows that the ordinary person is not exceptionally excitable, pugnacious or in a state of drunkenness.

In terms of other characteristics of the ordinary person, it seems to me that the “collective good sense” of the jury will naturally lead it to ascribe to the ordinary person any general characteristics relevant to the provocation in question. For example, if the provocation is a racial slur, the jury will think of an ordinary person with the racial background that forms the substance of the insult. To this extent, particular characteristics will be ascribed to the ordinary person. Indeed, it would be impossible to conceptualize a sexless or ageless ordinary person. Features such as sex, age, or race, do not detract from a person’s characterization as ordinary. Thus particular characteristics that are not peculiar or idiosyncratic can be ascribed to an ordinary person without subverting the logic of the objective test of provocation. As Lord Diplock wrote in Camplin at pp. 716-17:

... the “reasonable man” has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.

It is important to note that, in some instances, certain characteristics will be irrelevant. For example, the race of a person will be irrelevant if the provocation involves an insult regarding a physical disability. Similarly, the sex of an accused will be irrelevant if the provocation relates to a racial insult. Thus the central criterion is the relevance of the particular feature to the provocation in question. With this in mind, I think it is fair to conclude that age will be a relevant consideration when we are dealing with a young accused person. For a jury to assess what an ordinary person would have done if subjected to the same circumstances as the accused, the young age of an accused will be an important contextual consideration.

I should also add that my conclusion that certain attributes can be ascribed to the ordinary person is not meant to suggest that a trial judge must in each case tell the jury what specific attributes it is to ascribe to the ordinary person. The point I wish to emphasize is simply that in applying their common sense to the factual determination of the objective test, jury members will quite naturally and properly ascribe certain characteristics to the “ordinary person”.

(b) The Subjective Test and Actual Provocation

Once a jury has established that the provocation in question was sufficient to deprive an ordinary person of the power of self-control, it must still determine whether the accused was so deprived. It may well be that an ordinary person would have been provoked, but in fact the accused was not. This second test of provocation is called subjective because it involves an assessment of what actually occurred in the mind of the accused. At this stage, the jury must also consider whether the accused reacted to the provocation on the sudden and before there was time for his passion to cool.

In instructing the jury with respect to the subjective test of provocation, the trial judge must make clear to the jury that its task at this point is to ascertain whether the accused was in fact acting as a result of provocation. In this regard, a trial judge may wish to remind the jury members that, in determining whether an accused was actually provoked, they are entitled to take into account his or her mental state and psychological temperament.

VI. The Validity of the Trial Judge’s Charge

… The trial judge did not err in failing to specify that the ordinary person, for the purposes of the objective test of provocation, is to be deemed to be of the same age and sex as the accused. Although this type of instruction may be helpful in clarifying the application of the ordinary person standard, I do not think it wise or necessary to make this a mandatory component of all jury charges on provocation. …

I have the greatest of confidence in the level of intelligence and plain common sense of the average Canadian jury sitting on a criminal case. Juries are perfectly capable of sizing the matter up. In my experience as a trial judge I cannot recall a single instance in which a jury returned to the courtroom to ask for further instructions on the provocation portion of a murder charge. A jury frequently seeks further guidance on the distinction between first degree murder, second degree murder and manslaughter, but rarely, if ever, on provocation. It seems to be common ground that the trial judge would not have been in error if he had simply read s.215 of the Code and left it at that, without embellishment. I am loathe to complicate the task of the trial judge, in cases such as the case at bar, by requiring him or her as a matter of law to point out to the members of the jury that in applying the objective test they must conceptualize an “ordinary person” who is male and young. The accused is before them. He is male and young. I cannot conceive of a Canadian jury conjuring up the concept of an “ordinary person” who would be either female or elderly, or banishing from their minds the possibility that an “ordinary person” might be both young and male. I do not think anything said by the judge in the case at bar would have lead the jury to such an absurdity.

VII. Conclusion

I find that the trial judge’s charge to the jury on the ordinary person standard in the defence of provocation was consistent with the requirements of the Criminal Code and correct in law. It was not necessary to direct the jury that the ordinary person means an ordinary person of the same age and sex as the accused. I would, therefore, allow the appeal and restore the conviction.

The following are the reasons delivered by
WILSON J. (dissenting):— This case requires a consideration of the defence of provocation under s. 215 of the Criminal Code, R.S.C. 1970, c. C-34. …
The specific question the Court must address is whether the objective standard of the “ordinary person” upon which the defence is premised can take into account personal attributes of the accused such as his age and sex....

3. The Objective Test

The central question posed in this appeal is how the objective test for the provocation defence is to be formulated and the extent to which characteristics peculiar to the individual accused can be taken into account. Section 215(2) of the Code provides merely that the incident giving rise to the provocation must be “of such a nature as to be sufficient to deprive an ordinary person of the power of self-control ....” This rather cryptic statutory language requires interpretation in order to achieve the presumed purpose of the legislature in requiring the accused’s conduct to be measured against that of the “ordinary person”. What is the rationale underlying the objective test?

Like the “reasonable man” standard in tort law, the reference to the “ordinary person” in s. 215(2) embodies the notion that acts falling below the applicable standard are considered wrongful whether or not the individual defendant (or accused) had the capacity to meet the standard. Thus, in the classic negligence case of Vaughan v. Menlove (1837), 3 Bing. N.C. 468 (C.P.), it was held that a defendant’s innate stupidity cannot be put forward as a tort defence since he owes his neighbour a duty to take reasonable care regardless of his personal capacity for reasonableness. Similarly in the context of criminal culpability, it was held in the leading case of R. v. Leshini (1914), 11 Cr. App. R. 7 (C.A.), that the mental deficiency of the accused cannot be taken into account in analyzing the defence of provocation since, short of insanity, the law imposes full responsibility for intentional injurious acts except in those provocative situations where the ordinary person would not have acted any differently.

Stupidity, of course, is not the only subjective character trait which cannot be taken into account in measuring the accused’s acts against the objective standard of behaviour. Almost the entire spectrum of personality traits has been considered and rejected by English and Canadian courts as factors pertinent to the provocation defence.…

The objective standard, therefore, may be said to exist in order to ensure that in the evaluation of the provocation defence there is no fluctuating standard of self-control against which accuseds are measured. The governing principles are those of equality and individual responsibility, so that all persons are held to the same standard notwithstanding their distinctive personality traits and varying capacities to achieve the standard. The success of a provocation defence rests on establishing the accused’s act as one which any ordinary person might have done in the circumstances and not upon eliciting the court’s compassion for an accused whose act was unjustified but who could not control himself in the way expected of an ordinary person. It is evident that any deviation from this objective standard against which an accused’s level of self-control is measured necessarily introduces an element of inequality in the way in which the actions of different persons are evaluated and must therefore be avoided if the underlying principle that all persons are equally responsible for their actions is to be maintained.

A more difficult problem arises when the question is whether the physical attributes of the accused can be considered and incorporated into the objective standard…

[In Director of Public Prosecutions v. Camplin, [1978] A.C. 705,] Lord Diplock indicated that the age of the accused could be taken into account by the jury by attributing this characteristic to the “ordinary person”. In doing so, he expressly indicated, at p. 717, that age could be considered by the jury for two distinct purposes, namely (1) for the purpose of “assessing the gravity of the provocation addressed to the accused” and (2) for the purpose of “determining what is the degree of self-control to be expected of the ordinary person with whom the accused’s conduct is to be compared”. In other words Camplin would allow a particular physical attribute such as the accused’s age to be taken into account for the purpose of evaluating the gravity of the provocation. It would also allow particular mental attributes or personality traits such as the accused’s immaturity to be taken into account for the purpose of determining the standard of self-control against which his conduct is to be measured. The former holding undermines the Bedder and Parnerkar line of cases, whereas the latter reasoning tends to undermine the objectivity of the “ordinary person” standard as expressed in Leshini, Salamon and Wright.

The problem with the Bedder and Parnerkar line of cases, as I see it, is that they seem to assume that provocative insults occur in a vacuum and that therefore no facts pertinent to the individual accused need be taken into account in assessing the reaction to an insult. This, however, does not conform to reality since an insulting remark or gesture has to be placed in context before the extent of its provocativeness can be realistically assessed. As Lord Diplock expressed it in Camplin, supra, at p. 717:

To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not. It would stultify much of the mitigation of the previous harshness of the common law in ruling out verbal provocation as capable of reducing murder to manslaughter if the jury could not take into consideration all those factors which in their opinion would affect the gravity of taunts or insults when applied to the person whom they are addressed.

A racial insult directed at a member of the slandered group will clearly sting much more than it would if directed at the “ordinary person” who is not a member of the group. In Daniels, supra, for example, where the accused was a woman who stabbed her husband’s mistress during a verbal altercation, the jury obviously must take into account the factual context to the extent of recognizing that the accused’s marriage had been broken up by the victim even though, following the reasoning in Bedder and Parnerkar, one could say that the “ordinary person” was not married to Mr. Daniels and would therefore not be similarly affected by a verbal slight from his mistress.

It seems apparent that certain attributes of the accused and his or her circumstances must be taken into account, be they features of the accused’s life, elements of his culture or physical features to which the particular insult was addressed. This use of the accused’s attributes does not, in my view, undermine the objective standard because it is done purely for the purpose of putting the insult into context and assessing its gravity. A certain type of jeer or derisive remark may mean something to a teenager and be meaningless to an adult. The insult to the accused in Parnerkar would only be perceived as an insult by a jury cognizant of the accused’s race. The objective standard and its underlying principles of equality and individual responsibility are not, in my opinion, undermined when such factors are taken into account only for the purpose of putting the provocative insult into context.

By way of contrast, it would certainly undermine the principle of equality if the jury in Parnerkar were instructed to evaluate the accused in accordance with a standard of behaviour peculiar to his race. Whereas it is permissible to take into account factors such as the ethnic identity, language or physical infirmity of an accused for the purpose of giving the insult context, it would violate the principle of equality to assert that the reaction of a person of a certain ethnic or linguistic group to an insulting remark must be measured against a different standard from that applicable to others. Likewise, it would undermine the principle of individual responsibility if the jury in Bedder were instructed to fashion a special standard of behaviour against which to measure the actions of a person with his particular physical disability. Thus, impotent men are not excused for having a lower provocation threshold than that expected of “ordinary” people but rather are measured against the standard of an ordinary person similarly situated and similarly insulted. The objective standard applies to mental states rather than to attributes which simply go to placing the insult in its proper context. Accordingly, the most appropriate formulation of the objective standard in the first stage of the provocation defence is that of the ordinary person similarly situated and similarly insulted. The jury must be instructed to put themselves, as the embodiment of the ordinary person, in the accused’s shoes to the extent that they perceive themselves as confronted with a remark that has the same insulting effect on them as the actual remark had on the accused.

This formulation, it will be noted, represents a modified version of the Camplin rule. As indicated earlier, Lord Diplock allowed the age of the accused to be incorporated as an attribute of the “ordinary person” not only for the purpose of giving the insult context but also for the purpose of establishing the standard of self-control against which the youthful defendant should be measured. He specifically formulated this exception to the objective standard as an excuse premised on the sympathy which the courts must show for an accused who cannot meet the requisite standard of self-control when the usual objective standard is applied. In Lord Diplock’s reknowned phraseology (at p. 717): “But to require old heads upon young shoulders is inconsistent with the law’s compassion to human infirmity ....” It is evident that this reasoning cannot be stated as a universally applicable principle since the special treatment accorded an accused who for some reason evokes the court’s compassion necessarily embodies a violation of the underlying principles of equality and individual responsibility.

The respondent in the case at bar urges that the jury be permitted to take account of both his age and sex in assessing his reaction to the deceased’s unwanted sexual advances. The question to be addressed, therefore, is whether these are physical factors going to the context of the insult or factors going to the accused’s subjective mental state.

(a) Age

I believe the respondent is arguing that his age is directly related to his mental state in that his response to the offensive sexual advances was that of an immature person. Thus, in effect, he is stating that sixteen year olds cannot be held to the same level of self-control as can the “ordinary person” who is several years older. He is asking that youthful accused persons be treated unequally and not be held responsible for their actions in the same way as older accused persons. Is there any reason in policy or principle to except age from the foregoing analysis and permit the youth of an accused to govern the standard of self-control expected of him or her?

The policy of the law seems to be somewhat equivocal on this question. Age is identified as a prohibited ground of discrimination in s.15 of the Canadian Charter of Rights and Freedoms evidencing that in some fundamental sense persons of all ages enjoy the same legal rights and have assumed the same legal responsibilities in society. On the other hand, the legal system has traditionally differentiated between children and adults to the extent that children may be denied the right to vote, to drink alcoholic beverages, etc. Indeed, this Court has held that the right to equality before the law in the Canadian Bill of Rights is not violated by different penalties for criminal offences being imposed on youthful offenders from those imposed on their adult counterparts: R. v. Burnshine, [1975] 1 S.C.R.693. This position may be contrasted with the interpretation given to equality rights in R. v. Drybones, [1970] S.C.R.282, where it was held that such differentiations are impermissible as between different ethnic groups.

This legal recognition of only partial rights and responsibilities invested in children is usually found in legislation and can often be attributed to policy considerations designed to ensure the protection of young people from their own actions and the actions of others or to protect others from the actions of young people. Such statutory measures as the prohibition of underage drinking, child labour laws establishing minimum ages for full-time employment, and licensing requirements restricting the operation of motor vehicles to persons over a certain age may be said to fit into this category. In addition, however, one finds indications in the law that the attribution of only partial rights to children goes beyond the legislative policy of the day and represents a principle upon which a great deal of common law thinking has been based. For example, from very early times the common law has deemed children as lacking the capacity to contract: Wittingham v. Hill (1619), Cro. Jac. 494, 79 E.R.421. Similarly, the standard of care in negligence has been adjusted so that a child will not be measured against the same objective standard as an adult: McEllistrum v. Etches, [1956] S.C.R.787. Thus, in a variety of different contexts, the law has recognized a general incapacity in children to act in a fully rational and responsible manner and has accordingly refrained from the rigorous application to them of the principles of equality and individual responsibility applied to adults.

Concern over the legal responsibility of children for their actions has to some extent been addressed by Parliament in the Young Offenders Act, 1980-81-82-83 (Can.), c.110. Persons under certain specified ages who are charged with criminal offences are removed from the usual adjudicative process and dealt with in specially devised forums. The statute is silent, however, on how children are to be treated who do not fall within its provisions for special procedures. Specifically, it does not address the concern the law has always had over holding young people, who for many purposes are not equal to adults in their legal rights and responsibilities, to a standard of behaviour which embodies this precise notion of equality of responsibility. Thus, the fact that some children are by virtue of this legislation completely removed from the ordinary processes of criminal justice does not answer the question how the actions of young people who do come before the ordinary criminal courts are to be evaluated.

In my opinion, if the legal system is to reflect accurately the view of children as being in the developmental stages en route to full functioning capacity as adults, the standard against which children’s actions are measured must be such as can logically culminate in the objective standard of the ordinary person upon their arrival at full adulthood. In negligence law, for example, whereas an extremely young infant assumes almost no legal liability for his or her actions (Walmsley v. Humenick, [1954] 2 D.L.R.232 (B.C.S.C.)), older children are expected to conform to the standard appropriate for ordinary children of the same age: see Fleming, The Law of Toots, 6th ed.1983, pp. 107-08. Accordingly, it has been determined that the standard of care applicable to children is only partially objective in that it must be adjusted incrementally in accordance with the age of the child in question: McHale v. Watson (1966), 115 C.L.R.199 (Aust. H.C.) At some point, of course, there must be a cut-off so that the fully objective standard of the ordinary person can operate. Until this point is reached it stands to reason that the reduced legal standard of responsibility to which children are held is reflected in the semi-objective standard of the ordinary thirteen year old, fourteen year old, etc.

Applying this reasoning to the case at bar, the standard of the ordinary person applicable to adults raising the provocation defence must be adjusted to an incremental scale reflecting the reduced responsibility of the young accused. The measure of self-control properly applicable to the respondent, therefore, is that of the ordinary sixteen year old. This is not, however, conceptually premised on what Lord Diplock refers to as the law’s “compassion for human infirmity” since such compassion, in my view, finds its proper place only in the sentencing process. Rather, the incorporation of the accused’s age into the objective “ordinary person” standard is an attempt to reflect the extent of the legal rights and responsibilities of children in the legal system. The law treats all persons as equal members of society and holds them responsible on an equal basis for their actions except to the extent that they are in a developmental stage en route to achieving full adulthood and full legal rights and duties. This process of maturation into fully responsible actors in the legal system is reflected in the incrementally adjusted measure of legal responsibility accorded to the actions of youthful accuseds.

(b) Sex

The submission based on the sex of the accused is somewhat different. It is not argued that persons of different sex should be held to different standards of self-control. This would clearly be unacceptable. The submission rather is that the sex of the accused may be considered for the purpose of putting the wrongful act or insult into context and, as Lord Diplock expressed it in Camplin, “assessing the gravity of the provocation addressed to the accused”. It seems to me that if the objective test is, as I have concluded, the “ordinary person” similarly situated and similarly insulted, then the fact that the victim of the sexual assault, the accused, is a male and that the attack is a homosexual one may properly be considered.

4. Conclusions

(1) In general, particular characteristics of the individual accused and the circumstances in which the accused is found can be taken into account in applying the objective “ordinary person” test at the first stage of the provocation defence only for the purpose of placing the wrongful act or insult in its proper context with a view to assessing its gravity. The underlying principles of equality and individual responsibility cannot be undermined by importing the accused’s subjective level of self-control into the “ordinary person” test set out in s.215(2) of the Criminal Code. The jury must be directed to consider any facts which make the wrongful act or insult comprehensible to them in the same way as it was comprehended by the accused and then, having appreciated the factual context in which the wrongful act or insult took place, must measure the accused’s response to this insult against the objective standard of the ordinary person similarly situated and similarly insulted.

(2) The Ontario Court of Appeal was correct in identifying the young age of the respondent as a special factor which can be incorporated into the “ordinary person” standard. This reduction in the standard against which young accused persons are measured merely reflects the fact that the law does not attribute to individuals in the developmental stage of their youth the same degree of responsibility as is attributed to fully adult actors. This developmental process is properly embodied in an incrementally adjusted formulation of the “ordinary person” test in accordance with the age of the accused. In this way the basic principles of equality and individual responsibility are embodied in the test to an extent commensurate with the age and capacities of the accused.

(3) The Court of Appeal was also correct in holding that the sex of the respondent could be considered on the objective test, not because different standards of self-control are attributable to the two sexes, but in order to put the wrongful act or insult into context for purposes of assessing its gravity. In assessing the reaction of the ordinary person to a sexual assault it is the ordinary person who is a male subjected to a homosexual assault which must be considered.

In summary, the appropriate formulation of the objective standard against which the respondent’s reaction to the wrongful act must be measured in this case is the standard of the ordinary sixteen year old male subjected to a homosexual assault. The jury may well, on the basis of the judge’s charge and having regard to the existing state of the jurisprudence in Canada, have rejected the respondent’s defence because they measured his conduct against a higher standard. I agree with the Court of Appeal that in these circumstances the conviction cannot be allowed to stand.

I would dismiss the appeal.

 

R. v. Galgay
Ontario Court of Appeal
[1972] 6 C.C.C. (2d) 539

Accused was charged with the murder of the woman Y with whom he had been living in the following circumstances: he was serving a sentence of imprisonment in a reformatory when Y visited him and indicated she had met one K and had gone out with him socially, that her association with K would not have happened if the accused had been free and that she knew she would soon leave the accused because she could not wait another year for his release. Two days later the accused left the institution unlawfully to return to Y, and stayed that night with her at her rooming-house. After another two days together Y left the accused ostensibly to get clothes for him, but she did not return and, after searching for her, the accused found her with K’s brother. She said she had telephoned the police and told them where he was. The accused became deeply upset and, at his request, she left with him to return to her rooming-house.

They were walking down a laneway, when an argument began about what had occurred. Then Y said she was leaving to live with K. She also said “You are not going to be any good. You are drinking all the time. You are stealing.” She told him that this was what people were telling her. The accused struck Y, who soon afterwards, was found dead from brain injuries. The defence at trial was provocation, and the trial Judge, in the course of charging the jury, read to them s. 203(3) (now s. 215(3)) {now s. 232(3)}, which provides that “no one shall be deemed to have given provocation . . . by doing anything that he had a legal right to do,” and then dealt with the relevant facts as follows: “She informed him she was going to leave him. She had a right to leave him; she could go where she liked. She was single, she was twenty-three years of age, she could go where she wanted to go, and she could live with whomever she wanted to live. Therefore you will recall the provision of [s. 203(3)]...She had a legal right to leave him. She had a legal right to tell him she was going to leave him. So what she said in that regard could not constitute provocation.”

The accused was convicted and appealed to the Court of Appeal which ordered (MacKay J.A. dissenting) a new trial. Kelly J.A. stated that “the qualification in s-s. (3) does not apply to remove from a verbal insult offered by the provoker the provocative quality of the insult.” Brooke J.A. stated:

“What is the meaning of the term “legal right” in the provision of the section? Surely, it does not include all legal conduct not specifically prohibited by law. The absence of a remedy against doing or saying something or the absence of a specific legal prohibition in that regard does not mean or imply that there is a legal right to so act. There may be no legal remedy for an insult said or done in private but that is not because of legal right. The section distinguishes legal right from wrongful act or insult and the proviso of the section ought not to be interpreted to license insult or wrongful act done or spoken under the cloak of legal right. One has a right to do and to say those things which he is specifically authorized by law to say or to do, such as a Sheriff proceeding to execute a warrant of the Court. One has a right to do and to say those things which arise in the ordinary course of one’s affairs and relationships. But in neither case does the right extend to speaking or acting so as to insult the other person.

The learned trial Judge ought to have explained to the jury that Miss Youden might leave the appellant if she chose to do so; but he also should have told them that she had no right to insult him. His instructions should have been that it was for the jury to decide if, in fact, the whole statement made by Miss Youden was an insult to the appellant and, if so, to apply those tests provided by s. 203 of the Criminal Code and determine whether or not the defence of provocation should succeed.”

 

R. v. Thibert
Supreme Court of Canada
[1996] 1 S.C.R. 37

I. Facts

The appellant Norman Eugene Thibert was charged with first degree murder in the shooting death of his estranged wife’s lover, Alan Sherren. Norman Eugene Thibert married his wife, Joan Thibert, in July 1970. The couple had two children, Michelle and Catrina, aged 22 and 19 respectively at the time of the trial.

The Thiberts’ marriage had its share of problems. Early on in the marriage, Mr. Thibert admitted to his wife that he had had three extramarital affairs. In September 1990, Mrs. Thibert began an intimate relationship with the deceased, a co-worker. She disclosed this relationship to her husband in April 1991. He was distraught and eventually convinced his wife to remain with him and attempt to make their marriage work.

On July 2, 1991, Mrs. Thibert decided to leave her husband. She took a hotel room rather than returning home. The appellant drove around the city that evening, unsuccessfully searching for the hotel where his wife was staying. When he returned home, he removed a rifle and a shotgun from the basement of the house to the garage. He testified that he thought about killing the deceased, his wife, or himself. He loaded the rifle, and then left the guns in a corner of the garage, having at that point abandoned his violent thoughts.

The daughter, Catrina arrived home to find her father very upset. He told her of her mother’s affair. At approximately 11:00 p.m., Mrs. Thibert telephoned her husband at home to tell him of her decision to leave him. At his request, she agreed to meet him the next morning, at Smitty’s Restaurant in St. Albert, a suburb of Edmonton at 7:00 a.m.

The next morning Mr. Thibert and Catrina went to the restaurant to meet Mrs. Thibert who arrived at the meeting with the deceased. The appellant attempted to persuade her to return home with him, but she refused. The meeting at Smitty’s lasted approximately one hour. At the end of the meeting, Mr. Thibert promised not to bother his wife at work, and in return, she promised to think about coming home that night to again talk to him. Outside the restaurant, while waiting for Mrs. Thibert to finish talking with Catrina, the appellant told the deceased, “I hope you intend on moving back east or living under assumed names.…Because as long as I have got breath in my body I am not going to give up trying to get my wife back from you, and I will find you wherever you go.”

The appellant testified that, when he returned home, he thought about killing himself, and so returned to the garage and retrieved the guns. He sawed off the barrel of the shotgun, but then discovered that the gun was inoperable since the firing pin was broken.

He telephoned his wife at work several times in an effort to persuade her to return to him. During one afternoon call, she asked him to stop phoning her and told him that she was leaving work to make a bank deposit. The appellant then drove into the city, planning to find his wife while she was at the bank, and away from the influence of the deceased, and again attempt to convince her to give the marriage another try.

He put the loaded rifle in the back of his car before departing, thinking that he might have to kill the deceased. He testified that a few miles from home he abandoned that thought, but instead planned to use the rifle as a final bluff to get his wife to come with him. The police later seized a box of shells from the vehicle, although the appellant stated that he did not remember placing the ammunition in the car.

At approximately 2:45 p.m., the appellant parked across the street from his wife’s place of work. When he saw Mrs. Thibert depart for the bank, he followed her. She noticed him at a stoplight, at which time he attempted to persuade her to get into his car so they could talk. The appellant followed Mrs. Thibert to the bank, and insisted that they go some place private to talk. Mrs. Thibert agreed to meet him in a vacant lot but instead, out of fear returned to her workplace. The appellant followed her into the parking lot. The appellant again tried to persuade Mrs. Thibert to go some place with him to talk, but she continued to refuse.

The appellant told Mrs. Thibert that he had a high powered rifle in his car, but claimed that it was not loaded. He suggested that he would have to go into Mrs. Thibert’s workplace and use the gun. At that time, the deceased came out of the building and began to lead Mrs. Thibert back into the office. The appellant then removed the rifle from the car.

The appellant’s evidence was that the deceased began walking towards him, with his hands on Mrs. Thibert’s shoulders swinging her back and forth, saying, “You want to shoot me? Go ahead and shoot me.” and “Come on big fellow, shoot me. You want to shoot me? Go ahead and shoot me.” At some point, Mrs. Thibert either moved, or was moved aside. The appellant testified that the deceased kept coming towards him, ignoring the appellant’s instructions to stay back. The appellant testified that his eyes were closed as he tried to retreat inward and the gun discharged.

After the shot, Mrs. Thibert ran into the office building. At some point, the appellant put the gun down, entered the office building, and calmly said that he wanted to talk to his wife. He then exited the building, picked up the gun, put more ammunition in it, and said he was not going to hurt anyone. He placed the gun in his car and drove away.

While he was driving, the appellant noticed a police car following him. He pulled off onto a side road, and surrendered to the police. At the time of his arrest, Constable Baumgartner recorded that the appellant stated “It’s out of me now. He was fooling around with my wife.” Constable Turner recorded the appellant’s statement as “For what it’s worth, I was just after him. For what it’s worth, it’s out of me now. He was fooling around with my wife.”

The appellant was tried by judge and jury. He was found guilty of murder in the second degree.

CORY J. (Sopinka and McLachlin JJ. concurring):—The sole question to be considered on this appeal is whether the trial judge was correct in leaving the defence of provocation with the jury. Put another way, the issue is whether there was any evidence upon which a reasonable jury acting judicially and properly instructed could find that there had been provocation.

If the trial judge was correct in leaving provocation with the jury, then it is conceded that there must be a new trial. This is the result of the failure to instruct the jury that there was no onus resting upon the appellant to establish the defence but rather that it rested upon the Crown to establish beyond a reasonable doubt that there had not been provocation. The necessity of giving these instructions has been emphasized by this Court in Latour v. The King, [1951] S.C.R. 19, and in Linney v. The Queen, [1978] 1 S.C.R. 646. If on the other hand it was inappropriate for the trial judge to leave the defence of provocation to the jury, then the fact that he erred in the instructions pertaining to provocation was immaterial and it would be appropriate to find that no substantial wrong or miscarriage had been occasioned by the error.

The Defence of Provocation

The section specifies that there is both an objective and a subjective element to the defence. Both must be satisfied if the defence is to be invoked. First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool. The objective aspect would at first reading appear to be contradictory for, as legal writers have noted, the “ordinary” person does not kill. Yet, I think the objective element should be taken as an attempt to weigh in the balance those very human frailties which sometimes lead people to act irrationally and impulsively against the need to protect society by discouraging acts of homicidal violence.

When Should the Defence of Provocation Be Left to the Jury

In Parnerkar v. The Queen, [1974] S.C.R. 449, Fauteux C.J., writing for the majority at p. 454, held that the defence should not be left with the jury for where:

…the record is denuded of any evidence potentially enabling a reasonable jury acting judicially to find a wrongful act or insult of the nature and effect set forth in s. 203(3)(a) and (b), it is then, as a matter of law, within the area exclusively reserved to the trial judge to so decide and his duty to refrain from putting the defence of provocation to the jury.
That is to say that before the defence of provocation is left to the jury, the trial judge must be satisfied (a) that there is some evidence to suggest that the particular wrongful act or insult alleged by the accused would have caused an ordinary person to be deprived of self-control and (b) that there is some evidence showing that the accused was actually deprived of his or her self-control by that act or insult. This threshold test can be readily met, so long as there is some evidence that the objective and subjective elements may be satisfied. If there is, the defence must then be left with the jury.

The test in Parnerkar was followed by this Court in R. v. Faid, [1983] 1 S.C.R. 265. This test has been criticized by some writers (see, for example, Don Stuart, Canadian Criminal Law: A Treatise (3rd ed. 1995), at p. 498) as being contrary to the plain wording of s. 232. Despite my admiration for the work of Professor Stuart, I cannot accept his position. It is true that the objective and subjective requirements mandated by this section are clearly questions of fact which the jury must decide. Nonetheless, the trial judge must still determine if there is any evidence upon which a reasonable jury properly instructed and acting judicially could find that there had been provocation. If the trial judge is satisfied that there is such evidence, then the defence must be put to the jury to determine what weight, if any, should be attached to that evidence. Obviously the trial judge should not weigh the sufficiency of the evidence. This is the function reserved for the jury. A trial judge considering whether the evidence has met the threshold test must also take into account the nature of the wrongful act or insult and how that act or insult should be viewed in the context of the case.

The Wrongful Act or Insult

Taylor v. The King, [1947] S.C.R. 462, adopted The Oxford English Dictionary definition of “insult” (at p. 475) and found it to mean:

. . . an act, or the action, of attacking or assailing; an open and sudden attack or assault without formal preparations; injuriously contemptuous speech or behaviour; scornful utterance or action intended to wound self-respect; an affront; indignity.

The Objective Element of the Test: How Ordinary Is the “Ordinary Person” and Would That Person Have Been Provoked by the Wrongful Act or Insult?

…. In my view, so long as the provocation section remains in the Criminal Code in its present form certain characteristics will have to be assigned to the “ordinary person” in assessing the objective element. The “ordinary person” must be of the same age, and sex, and share with the accused such other factors as would give the act or insult in question a special significance and have experienced the same series of acts or insults as those experienced by the accused.
In summary then, the wrongful act or insult must be one which could, in light of the past history of the relationship between the accused and the deceased, deprive an ordinary person, of the same age, and sex, and sharing with the accused such other factors as would give the act or insult in question a special significance, of the power of self-control.

The Subjective Element

In R. v. Tripodi, [1955] S.C.R. 438, Rand J. interpreted “sudden provocation” to mean that “the wrongful act or insult must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame” (p. 443). To this definition, I would add that the background and history of the relationship between the accused and the deceased should be taken into consideration. This is particularly appropriate if it reveals a long history of insults, levelled at the accused by the deceased. This is so even if the insults might induce a desire for revenge so long as immediately before the last insult, the accused did not intend to kill. Glanville Williams adopts this position in his Textbook of Criminal Law (2nd ed. 1983). At page 530, he puts it in this way: “affronts over a long period of time inducing the desire for revenge do not preclude the defence of provocation, if immediately before the last affront the defendant did not intend to kill”. He adds further that, “the last affront may be comparatively trivial, merely the last straw that makes the worm turn, so to speak”.

Further support for the position that the prior history of the relationship may as well be taken into account in assessing the subjective aspect can be found in the dissenting reasons of Foisy J.A. in R. v. Sheridan (1990), 55 C.C.C. (3d) 313 (Alta. C.A.), at p. 321. There Foisy J.A. stated:

The trial judge’s finding that the accused appellant had acted in the heat of passion caused by sudden provocation took into account the finding that the appellant, a cocaine addict, was irritable and anxious at the time. Further there was the sudden throwing of the bottle just after the final and absolute death threat uttered by Miller. This, together with the previous history of threats of violence against the appellant and his wife was found by the learned trial judge to have incited the appellant.

These reasons were specifically adopted by this Court. See R. v. Sheridan, [1991] 2 S.C.R. 205. These then are the considerations which the trial judge must take into account in making assessment as to whether or not there was any evidence upon which a reasonable jury acting judicially and properly instructed could find that the defence of provocation could be applicable in the circumstances of this case.

Bearing in Mind the Principles Pertaining to Provocation, Was There any Evidence Adduced in This Case Which Required the Trial Judge to Leave That Defence with the Jury?

In this case, there is no doubt that the relationship of the wife of the accused with the deceased was the dominating factor in the tragic killing. Obviously, events leading to the break-up of the marriage can never warrant taking the life of another. Affairs cannot justify murder. Yet the provocation defence section has always been and is presently a part of the Criminal Code. Any recognition of human frailties must take into account that these very situations may lead to insults that could give rise to provocation. Some European penal codes recognize “crimes of passion” as falling within a special category. Indeed many of the Canadian cases which have considered the applicability of the defence arise from such situations. See, for example, the cases of Daniels, supra, and Conway, supra. The defence of provocation does no more than recognize human frailties. Reality and the past experience of the ages recognize that this sort of situation may lead to acts of provocation. Each case must be considered in the context of its particular facts to determine if the evidence meets the requisite threshold test necessary to establish provocation.

The Objective Element of the Test

In this case, it is appropriate to take into account the history of the relationship between the accused and the deceased. The accused’s wife had, on a prior occasion, planned to leave him for the deceased but he had managed to convince her to return to him. He hoped to accomplish the same result when his wife left him for the deceased on this second occasion. At the time of the shooting he was distraught and had been without sleep for some 34 hours. When he turned into the parking lot of his wife’s employer he still wished to talk to her in private. Later, when the deceased held his wife by her shoulders in a proprietary and possessive manner and moved her back and forth in front of him while he taunted the accused to shoot him, a situation was created in which the accused could have believed that the deceased was mocking him and preventing him from his having the private conversation with his wife which was so vitally important to him.

Taking into account the past history between the deceased and the accused, a jury could find the actions of the deceased to be taunting and insulting. It might be found that, under the same circumstances, an ordinary person who was a married man, faced with the break-up of his marriage, would have been provoked by the actions of the deceased so as to cause him to lose his power of self-control. There was some evidence, therefore, that would satisfy the objective element of the test. Next it remains to be seen whether there was evidence that could fulfil the subjective element of the test.

The Subjective Element of the Test

It must be determined whether there was evidence that the appellant was actually provoked. Once again it is necessary to take into account the past history involving the accused, the deceased and his wife. Further, it cannot be forgotten that the accused hadn’t slept for some 34 hours and that he described himself as being devastated, stressed out and suicidal. He emphasized how important it was to him to talk to his wife in private, away from the deceased. It was in this manner that he successfully persuaded his wife to stay with him on the earlier occasion. When his wife returned to her employer’s parking lot and the deceased came out of the building, he testified that his thoughts were “here is the man that won’t give me a half hour alone with my wife after 21 years and he has had her for 24 hours the night before”.

It was when the deceased put his arm around his wife’s waist and started leading her back towards the building that the appellant removed the rifle from the car. He testified that he did so as a bluff. He hoped it would make them take him more seriously and succeed in convincing his wife to accompany him so that they could talk privately. From this point, the deceased’s actions could be construed as a conscious attempt to test the appellant’s limits. When he saw that the appellant had a gun, he advanced towards him. The appellant’s wife was in front of the deceased and the deceased had his hands on her shoulders. The appellant recalled that the deceased was swinging Mrs. Thibert from side to side like a moving target. While doing this, the deceased was laughing and grinning at the appellant. He also dared the appellant to fire and taunted him by saying “Come on big fellow, shoot me. You want to shoot me? Go ahead and shoot me.” The deceased continued to approach the appellant, proceeding as fast as he could. In turn, the appellant kept backing up and told the deceased to “stay back”, but the deceased continued to approach him. The appellant testified that he remembered wanting to scream because the deceased would not stop coming towards him. The appellant’s eyes were tightly closed when he fired the gun. The time the appellant held the gun until he fired was not long. The events unfolded very quickly, in a matter of moments, seconds, not minutes.

The respondent submitted that “[r]ejection in the context of a romantic relationship will not constitute a basis for the provocation defence.” This is correct. If the appellant had simply brooded over the unhappy situation, put a rifle in his car and gone looking for the deceased, then the history of the deceased’s relationship with the wife of the accused could not be used as a basis for a defence of provocation because the necessary final act of provocation was missing. However, in this case, rejection is not the most significant or overriding factor. The appellant sought to avoid the deceased in order to talk privately with his wife. The evidence indicates that the confrontation with the deceased in the parking lot was unexpected. The appellant had gone to some lengths to avoid meeting the deceased.

In my view there was evidence upon which a reasonable jury acting judicially and properly instructed could have concluded that the defence of provocation was applicable. Next it must be considered whether the acts of the deceased were those which he had a legal right to do and thus within the exemption described in s. 232(3).

Were the Acts of the Deceased Ones Which He Had a Legal Right to Do but Which Were Nevertheless Insulting?

It will be remembered that s. 232(3) provides that “no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do”. In the context of the provocation defence, the phrase “legal right” has been defined as meaning a right which is sanctioned by law as distinct from something which a person may do without incurring legal liability. Thus the defence of provocation is open to someone who is “insulted”. The words or act put forward as provocation need not be words or act which are specifically prohibited by the law. It was put in this way in R. v. Galgay, [1972] 2 O.R. 630 (C.A.), by Brooke J.A. (at p. 649):

The absence of a remedy against doing or saying something or the absence of a specific legal prohibition in that regard does not mean or imply that there is a legal right to so act. There may be no legal remedy for an insult said or done in private but that is not because of legal right. The section distinguishes legal right from wrongful act or insult and the proviso of the section ought not to be interpreted to license insult or wrongful act done or spoken under the cloak of legal right.

This interpretation of “legal right” was adopted in R. v. Haight (1976), 30 C.C.C. (2d) 168 (Ont. C.A.), where, at p. 175, Martin J.A. noted that “[t]he law does not approve of everything which it does not forbid.”

Thus, while the actions of the deceased in the parking lot were clearly not prohibited by law, they could nonetheless be found by a jury to constitute insulting behaviour. In light of the past history, possessive or affectionate behaviour by the deceased towards the appellant’s wife coupled with his taunting remarks could be considered to be insulting. Nor can it be said that these actions really constituted self-defence. The deceased was told by the appellant’s wife that the gun was unloaded and he may have believed her. In any event, he continued to advance towards the appellant and to goad him to shoot despite the request to stop. In the circumstances, the actions of the deceased could well be found not to be acts of self-defence. A jury could infer that it was the taunting of the appellant by the deceased who was preventing him from talking privately with his wife which was the last straw that led him to fire the rifle suddenly before his passion had cooled. While the deceased’s conduct might not have been specifically prohibited nor susceptible to a remedy it was not sanctioned by any legal right.

In summary, there was some evidence upon which a reasonable jury acting judicially and properly instructed could find that the defence of provocation was applicable. It was appropriate for the trial judge to leave his defence with the jury. Once it was determined the defence should be left then the trial judge was required to correctly relate the principles of reasonable doubt as they applied to that defence.

Some General Comments

The Effect of Leaving the Defence of Provocation With the Jury

It must be remembered that to find that there was evidence which justified leaving the defence to the jury is far from concluding that jury should or would act upon that evidence. The defence is simply something that the jury will have to assess. The great good sense of jurors will undoubtedly lead them to consider all the facts, including the presence of the loaded gun in the car. Further, it must be remembered that the defence of provocation goes no farther than to reduce the conviction for murder to one of manslaughter. This is hardly an insignificant crime when it is remembered that the life imprisonment can be imposed as punishment.

Advantageous Position of the Trial Judge

It is trite but important to recall that the trial judge had the tremendous advantage of seeing and hearing the testimony of all who testified. The trial judge was in a very advantageous position to determine if there was such evidence of provocation adduced that the defence should be left with the jury. He considered the objections of the Crown to leaving the defence with the jury but decided, rightly in my view, that he should instruct the jury on the defence. Unless there is an absence of any evidence as to the objective and subjective elements of the defence such a decision of a trial judge should not be lightly interfered with by an appellate court.

The Jury’s Question as to Provocation

Of still greater significance the jury in this case asked a question pertaining to the objective element of the defence of provocation. The question makes it apparent that the jury was seriously considering the evidence relating to the defence and was concerned by it. In light of the evidence adduced relating to provocation this, in itself, is an indication that the defence was properly left to the jury.

Disposition

In the result, I would allow the appeal, set aside the decision of the Court of Appeal and direct a new trial on the charge of second degree murder.

MAJOR J. (Iacobucci J. concurring) (dissenting):—This appeal concerns the application of the defence of provocation found in s. 232 of the Criminal Code, R.S.C., 1985, c. C46. Specifically at issue is whether the trial judge was correct in leaving the defence with the jury, and if so, whether the jury charge can be saved by s. 686(1)(b)(iii)….

V. Analysis

A. Was the Defence of Provocation Properly Left with the Jury?

….
In my opinion, in this case there is no evidence of a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control. That the deceased may have positioned Mrs. Thibert between himself and the appellant cannot constitute a wrongful act or insult. Nor can the statements “You want to shoot me? Go ahead and shoot me” and “Come on big fellow, shoot me” be considered a wrongful act or insult. Those actions are not contemptuous or scornful; they are legitimate reactions to a dangerous situation. It would be improper to require victims to respond in a certain way when faced with armed, threatening individuals. The defence claim that the wrongful act or insult came from the appellant’s evidence that the deceased used Joan Thibert as a shield while taunting him to shoot is ironic. The appellant had control of the only true weapon involved in this situation, the rifle.

Further, that the deceased had a personal relationship with Mrs. Thibert is not a wrongful act or insult sufficient to cause an ordinary person to lose the power of self-control. The break-up of a marriage due to an extramarital affair cannot constitute such a wrongful act or insult. I agree with the statement of Freeman J.A. in R. v. Young (1993), 78 C.C.C. (3d) 538 (N.S.C.A.), at p. 542, that:

It would set a dangerous precedent to characterize terminating a relationship as an insult or wrong act capable of constituting provocation to kill. The appellant may have been feeling anger, frustration and a sense of loss, particularly if he was in a position of emotional dependency on the victim as his counsel asserts, but that is not provocation of a kind to reduce murder to manslaughter.

Similarly, it would be a dangerous precedent to characterize involvement in an extramarital affair as conduct capable of grounding provocation, even when coupled with the deceased’s reactions to the dangerous situation he faced. At law, no one has either an emotional or proprietary right or interest in a spouse that would justify the loss of self-control that the appellant exhibited.

In that connection, Cory J. states that the events leading to the break-up of a relationship are not factors going to provocation but I wonder whether the effect of his reasons is such that these factors have been taken into account in the context of provocation. My colleague emphasizes that the accused still wished to see his wife alone after the end of the relationship. However, in my view, she had made it clear on a number of occasions that she did not wish to be alone with him. This was a choice that Joan Thibert was free to make. The accused had no right or entitlement to speak with his wife in private. The fact that the accused believed that the deceased was preventing him from doing so is not, with respect, a fact that ought to be taken into account when considering the defence of provocation.

If I am wrong and the objective threshold test for provocation is met, the appeal would fail on the subjective element of the test. The appellant had known of his wife’s involvement with the deceased for some time. He knew his wife wanted to leave him, and had seen the deceased with his wife earlier that day. It cannot be said that the appellant’s mind was unprepared for the sight of his wife with the deceased such that he was taken by surprise and his passions were set aflame. There was no element of suddenness on the facts of this case.

For these reasons, I am of the opinion that neither the objective branch nor the subjective branch of the threshold test for leaving the defence of provocation with the jury has been met. There is no evidence on which a reasonable jury, acting judicially could find a wrongful act or insult sufficient to deprive the ordinary person of the power of self-control. Neither is there any evidence that the appellant acted on the sudden. The defence should not have been left with the jury. This was an error that did not prejudice the appellant. …

VI. Disposition

I would dismiss the appeal.

Appeal allowed; new trial ordered.

 

R. v. Parent
Supreme Court of Canada
[2001] 1 S.C.R. 761

1          THE CHIEF JUSTICE [McLachlin] :— On September 24, 1996, the respondent, Réjean Parent, shot and killed his estranged wife. She had initiated divorce proceedings four years earlier and they were involved in litigation over the division of their assets, some of which were held in a corporation. In the meantime, their financial situation deteriorated, to the point that Mr. Parent’s shares were seized and put up for sale. The wife attended the sale, allegedly intending to buy the shares. Mr. Parent also attended. He carried a loaded gun with a locked security catch in his pocket. There, she suggested they speak and they retired into a nearby room. Shortly after, shots were heard. Mr. Parent had shot his wife six times. She died from the wounds later that night.
2          Mr. Parent was charged with first degree murder. At trial, he testified that when they proceeded to the room his wife had said, in effect: [TRANSLATION] “I told you that I would wipe you out completely.” He then felt a hot flush rising and shot. He said he [TRANSLATION] “didn’t know what [he] was doing any more” and was aiming in front of him. He said he did not intend to kill his wife. After doing so, he left the building and spent the afternoon in a strip club before giving himself up to police that evening.
3          At trial, Mr. Parent argued that the verdict should be reduced to manslaughter on the basis of lack of criminal intent or provocation. The jury found him guilty of manslaughter. He was sentenced to 16 years’ imprisonment, and a lifetime prohibition on possessing firearms, ammunition and explosives: [1997] Q.J. No. 4459 (QL).
4          The Crown appealed the verdict of manslaughter, and Parent appealed the sentence. The Quebec Court of Appeal dismissed the appeal from the verdict without reasons, but in separate proceedings ((1999), 142 C.C.C. (3d) 82) reduced the sentence to six years’ imprisonment, after giving Mr. Parent credit of two years for time served. In this Court, the appellant raised one point only: that the judge had erred in his instructions to the jury on the effect of anger, creating a “defence of anger” (défense de colère) distinct from the defence of provocation. The respondent, for his part, argued that any difficulties in the judge’s directions to the jury were cleared up in his redirection on provocation in answer to jury questions and that the jury properly convicted the accused of manslaughter on the basis of provocation.
5          Two issues are raised: (1) whether the trial judge erred in his charge to the jury on intention, and (2) if so, whether that error was cured by the redirection. I conclude that the trial judge erred in his direction on intention and that the recharge did not eliminate the possibility that this error led the jury wrongly to find the respondent guilty of manslaughter. Accordingly, the conviction must be set aside and a new trial ordered.

1. Did the Trial Judge Err in his Charge to the Jury on Intention?

6          The jury had three possible offences before it: first degree murder, second degree murder and manslaughter. All three offences require proof of an act of killing (actus reus) and the corresponding criminal intention (mens rea). In relation to murder, the defence of provocation does not eliminate the need for proof of intention to kill, but operates as an excuse that has the effect of reducing murder to manslaughter.
7          The Crown argues that the trial judge erred in suggesting that anger is capable of negating the intention to kill and that the jury could reduce the offence to manslaughter on this basis. More particularly, the Crown suggests that the judge’s directions wrongly treated anger as a matter that could negate the criminal intent or mens rea of the offence; wrongly suggested that negation of intent can reduce the offence to manslaughter; and wrongly left open the suggestion that anger alone can establish provocation, when in fact other requirements must be met pursuant to s. 232 of the Criminal Code, R.S.C. 1985, c. C-46. The gravamen of the Crown’s submission is that the trial judge’s direction on intention was confusing and wrong and left it open to the jury to convict the accused of manslaughter, not on the basis of provocation (which the trial judge correctly defined), but on the erroneous basis that a high degree of anger short of provocation, as defined in law, could negate the criminal intent or mens rea of the offence.
8          The Crown objects to the portions of the jury charge in which the trial judge stated that the jury must take into account [TRANSLATION] “evidence surrounding the defence of provocation raised by the accused” in determining the accused’s intent to kill. The Crown also objects to the trial judge’s treatment of mens rea in the following passages:

[TRANSLATION] For example, murder may be reduced to manslaughter where a person’s state of mind is affected by alcohol consumption, drug consumption or where a person’s state of mind is obscured or diminished by an outside force, by an incident like, for example, a fit of anger.
     You no doubt appreciate that we are not talking about an arbitrary reduction.
     In other words, it is not sufficient for a person to simply say “I was drinking” or “I took some drugs” or “I was really angry”.
     That alone, that’s not enough, and all that always depends on the circumstances. It always depends on the nature of the facts at issue, of external influences, or outside influences capable of affecting one’s state of mind.
     It depends on the nature of the fact at issue, of its importance, its seriousness, its intensity in relation to the action that was taken by the person who committed the crime, all the while taking into account the evidence as a whole and all the circumstances.
     So, you must look at the accused’s state of mind when he killed Suzanne Bédard, you look at the entire evidence, including the elements surrounding the provocation defence with a view to determining whether he acted with the criminal intention that I defined earlier.
     Here, the accused, when he testified, described to you his state of mind when Suzanne Bédard said the words in question.
     You must then decide if this incident was sufficiently serious, important, intense so as to cause him to lose his faculties to the point of reducing the crime of murder to manslaughter.
     You will ask yourselves if his state of mind was affected, diminished, and if so, the intensity, the degree to which, taking into account all the circumstances at the time when he did what he did.
     To reduce murder to manslaughter, you must come to the conclusion that the influence of the events that occurred was strong enough, important enough, intense enough to cause the accused to not know or not want what he was doing by reason of his state of mind, that his faculties were too diminished to fully assess the situation, or that raise a reasonable doubt in his favour, in this respect. [Emphasis added.]

9          The Crown argues that this passage creates a halfway house defence of anger, between non-mental disorder automatism and provocation. I agree. This passage suggests that anger, if sufficiently serious or intense, but not amounting to the defence of provocation, may reduce murder to manslaughter. It also suggests that anger, if sufficiently intense, may negate the criminal intention for murder. These connected propositions are not legally correct. Intense anger alone is insufficient to reduce murder to manslaughter.
10        The passage cited overstates the effect of anger. Anger can play a role in reducing murder to manslaughter in connection with the defence of provocation. Anger is not a stand-alone defence. It may form part of the defence of provocation when all the requirements of that defence are met: (1) a wrongful act or insult that would have caused an ordinary person to be deprived of his or her self-control; (2) which is sudden and unexpected; (3) which in fact caused the accused to act in anger; (4) before having recovered his or her normal control: R. v. Thibert, [1996] 1 S.C.R. 37. Again, anger conceivably could, in extreme circumstances, cause someone to enter a state of automatism in which that person does not know what he or she is doing, thus negating the voluntary component of the actus reus: R. v. Stone, [1999] 2 S.C.R. 290. However, the accused did not assert this defence. In any event, the defence if successful would result in acquittal, not reduction to manslaughter.
11        So it seems clear that the trial judge misdirected the jury on the effect of anger in relation to manslaughter. His directions left it open to the jury to find the accused guilty of manslaughter, on the basis of the anger felt by the accused, even if they concluded that the conditions required for the defence of provocation were not met. The directions raise the possibility that the jury’s verdict of manslaughter may have been based on erroneous legal principles, unless they were corrected in the recharge to the jury.

 2. Did the Trial Judge Correct the Errors in his Recharge to the Jury?

12        The trial judge recharged the jury in response to two questions it posed during its deliberations. The jury asked for clarification as to sudden provocation and the burden of proof for manslaughter.
13        The trial judge responded by correctly recharging the jury on provocation. He told the jury that they would need to consider provocation only if they found the elements of murder established and that if they had a reasonable doubt on the matter, they must convict of manslaughter, not murder.
14        The question, however, is whether the recharge on provocation corrected the earlier misdirection suggesting that anger short of provocation might suffice to reduce murder to manslaughter by raising a doubt on the existence of the criminal intent for murder. Since the trial judge began his recharge on provocation by noting (correctly) that the jury must already have satisfied itself of the basic elements of murder before it got to this point—actus reus and mens rea—the recharge did not address the earlier erroneous suggestion that anger alone might reduce murder to manslaughter.
15        More seriously, the trial judge incorporated by reference into the recharge, his earlier erroneous charge on criminal intention. He stated:

[TRANSLATION] I defined criminal intention in a general manner and I indicated to you that if you had a reasonable doubt with respect to the accused’s criminal intention, you had to return a verdict of manslaughter because the crime would no longer amount to murder.
This incorporated into the trial judge’s recharge his previous erroneous comments suggesting that anger alone could negate criminal intention or mens rea and hence reduce murder to manslaughter.

16        I conclude that the recharge did not cure the errors in the trial judge’s initial direction on how anger could affect criminal intent….

 3. Conclusion

18        The trial judge erred in his charge to the jury on the effect of anger on criminal intent or mens rea and its relationship to manslaughter. This error was not corrected on the recharge and we cannot infer from the way the trial proceeded that the jury’s verdict of manslaughter was not based on the erroneous initial direction. It follows that the conviction for manslaughter must be set aside and a new trial directed….

Appeal allowed and new trial ordered on second degree murder.

* * *

MPC § 210(3)(1)(b)

* * *

StGB § 213

      3. Entrapment

 

R. v. Mack
Supreme Court of Canada
[1988] 44 C.C.C. (3d) 513; [1988] 2 S.C.R. 903

The judgment of the court was delivered by
LAMER J.:—

INTRODUCTION

The central issue in this appeal concerns the doctrine of entrapment. The parties, in essence, ask this court to outline its position on the conceptual basis for the application of the doctrine and the manner in which an entrapment claim should be dealt with by the courts. Given the length of these reasons due to the complexity of the subject, I have summarized my findings on pp.559-60 of these reasons.

THE FACTS

The appellant was charged with unlawful possession of a narcotic for the purpose of trafficking. He testified at trial and, at the close of the case for the defence, brought an application for a stay of proceedings on the basis of entrapment. The application was refused and a conviction entered by Wetmore Co. Ct.J., sitting without a jury, in written reasons reported in 34 C.R. (3d) 228 (B.C. Co. Ct.). A notice of appeal from that decision was filed with the British Columbia Court of Appeal but the appeal books were not filed within the time prescribed. Counsel for the appellant sought and obtained, with the consent of Crown Counsel, an order dispensing with the requirement that transcripts of evidence be filed and permitting counsel to base their arguments solely on the reasons for judgment of Wetmore Co. Ct.J. The Chief Justice of British Columbia directed that a panel of five judges hear the appeal. For the reasons given by Craig J.A., on behalf of the court, the appeal was dismissed. This decision is now reported at 23 C.C.C. (3d) 421, 49 C R. (3d) 169 (B.C.C.A.). Leave to appeal was granted by this court.

It is necessary to describe in some detail the relevant facts. In view of the particular procedural history of this appeal, I think it is appropriate to reproduce in its entirety the summary of the evidence provided for in the reasons for judgment of Wetmore Co. Ct.J. (at pp. 2347):

Through information obtained from an officer of the Ontario Provincial Police, one Momotiuk was brought to British Columbia. This man had apparently been dealing in narcotics in Kenora, Ontario. He was placed under police “handlers” in Vancouver, he visited the accused on a number of occasions, and eventually a transaction was set up whereby the accused would deliver cocaine to Momotiuk.

The accused testified. He first met Momotiuk in 1979 in Montreal where the accused was visiting one Franks. The accused understood Franks and Momotiuk to be associated in some clothing franchise.

The accused at this time was attempting to develop some property for sale near Deroche, British Columbia, and told Franks and Momotiuk of this and both expressed some interest in buying. Both arrived in British Columbia in October 1979. In the course of this visit the accused says that Momotiuk told him he was a drug trafficker in Kenora and wanted some “Thai pot”. The accused says he had no interest.

Momotiuk, according to the accused, called later still wanting to make drug deals, and the accused told him he was interested only in real estate deals.

The accused again went to a yoga retreat near Montreal in December 1979. Franks and Momotiuk visited him there. Momotiuk produced some cocaine, which he and Franks used, and again asked the accused to become a supplier. A few days later they met again. At this time conversation was directed to show Momotiuk as an importer of drugs on a large scale, and again the accused was invited to join in and refused.

In January and February there were approximately seven telephone calls from Momotiuk to the accused soliciting his involvement. The accused says he refused.

In mid-February 1980 Momotiuk visited the accused again, asking him to supply drugs. The accused says he told Momotiuk he was not interested and asked to be left alone. Momotiuk continued to visit two or three times and also telephoned.

In March the accused says Momotiuk arrived again. They went for a walk in the woods. Momotiuk produced a pistol and was going to show the accused his marksmanship. He was dissuaded because of the probability of startling the horses nearby. The accused says that at this remote area Momotiuk said, “A person could get lost.” This the accused says was a threat. He says the matter of drugs was again raised and the accused says he was adamant that he had no knowledge of drugs sources.

The accused was asked to phone him twice and did not. One Matheson attended at the accused’s residence on the 13th of March with a message that Momotiuk was very excited and wanted to see him at the Biltmore Hotel. The accused says he wanted nothing to do with Momotiuk but was terrified of him and agreed to go into town to the Biltmore. He also says that Matheson told him Momotiuk had some friends with him. This the accused took to be other members of this illegal syndicate.

While en route to the city he twice noted a car which seemed to be following him. This was probably so, because undercover police officers were doing a surveillance at the time.

On arrival at the hotel he met Momotiuk. Again he was informed of the syndicate. He was asked then if he wished to see the buying power. The accused agreed. He was directed to a car outside the hotel. In this car was an open briefcase with $50,000 exposed. The custodian, unknown to the accused, was an undercover policeman.

The accused returned to the hotel, Momotiuk asked him to get a sample and gave him $50 for this purpose.

The accused left and went to a supplier he had known of from years back. This supplier, one Goldsmith, now dead, heard the accused’s story and agreed to supply “in order to get Doug [Momotiuk] off me”.. He obtained the sample and delivered it to Momotiuk, who tested it and said to get as much as he could. He returned to the supplier and offered $35,000 to $40,000 for a pound.

At the meeting the following day the accused had still not acquired the drugs and he says that at this point he was told to get his act together, in a threatening way.

I need not detail the accused’s evidence of the following two days. He obtained 12 ounces of cocaine, and was to pay $27,000 for it. This credit, he says, was extended to him by Goldsmith on the basis of payment when delivered to Momotiuk. It was in the course of this delivery that he was arrested.

It is on the basis of this testimony that the accused says he was entrapped. Momotiuk Matheson and Franks did not testify. Neither did Bonnie”, the accused’s former wife, who was apparently present at one of the Montreal meetings, where cocaine was produced and some discussion took place.

The accused has drug convictions in 1972 and 1976, two in 1978 and one in 1979. Those in 1976, one in 1978 and one in 1979 involved cocaine. He says his former use of drugs arose to relieve back pain, but in 1978 he discovered relief from yoga and gave up the use of narcotics. The offence in 1979 was a fall from grace when he met up with old friends.

ANALYSIS

I. The context

One need not be referred to evidence to acknowledge the ubiquitous nature of criminal activity in our society. If the struggle against crime is to be won, the ingenuity of criminals must be matched by that of the police; as crimes become more sophisticated so too must be the methods employed to detect their commission. In addition, some crimes are more difficult to detect. As Chief Justice Laskin in R. v. Kirzner (1977), 38 C.C.C. (2d) 131, 81 D.L.R. (3d) 229, [1978] 2 S.C.R. 487 (S.C.C.), explained (at p. 135 C.C.C., pp. 492-3 S.C.R.):

Methods of detection of offences and of suspected offences and offenders necessarily differ according to the class of crime. Where, for example, violence or breaking, entering and theft are concerned, there will generally be external evidence of an offence upon which the police can act in tracking down the offenders; the victim or his family or the property owner, as the case may be, may be expected to call in the police and provide some clues for the police to pursue. When “consensual” crimes are committed, involving willing persons, as is the case in prostitution, illegal gambling and drug offences, ordinary methods of detection will not generally do. The participants, be they deemed victims or not, do not usually complain or seek police aid; that is what they wish to avoid. The police, if they are to respond to the public disapprobation of such offences as reflected in existing law, must take some initiatives.

The same point is made by Estey J. in Amato, supra (at p. 70 C.C.C., p. 457 S.C.R ). I would note that in addition to so-called “victimless” or “consensual” crimes, active law enforcement techniques may be used to combat crimes where there are victims, but those victims are reluctant to go to the police because of intimidation or blackmail, as maybe the case with the offence of extortion. Further, some criminal conduct may go unobserved for a long time if the victims are not immediately aware of the fact that they have been the subject of criminal activity, in the case, for example, of commercial fraud and also bribery of public officials. In general, it may be said that many crimes are committed in secret and it is difficult to obtain evidence of their commission after the fact.

Obviously, the police must be given considerable latitude in the effort to enforce the standards of behaviour established in the criminal law. This has long been recognized by the common law: see Donnelly R.,  “Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs”, 60 Yale L.J. 1091, pp. 1091-2 (1951). Chief Justice Laskin, in Kirzner, supra, noted that with respect to  consensual crimes, the police employ a number of people and techniques (at pp. 135-6 C.C.C., p. 493 S.C.R.):

They may, for example, use a spy, either a policeman or another person, to obtain information about a consensual offence by infiltration; they may make arrangements with informers who may be parties to offences on which they report to the police to enable the other parties to be apprehended; or the police may use decoys or themselves act under cover to provide others with the opportunity to commit a Unsensual offence or to encourage its commission. Going one step farther, the police may use members of their force or other persons to instigate the commission of an offence, planning and designing it ab initio to ensnare others.

There is a crucial distinction, one which is not easy to draw, however, between the police or their agents—acting on reasonable suspicion or in the course of a bona fide inquiry—providing an opportunity to a person to commit a crime, and the state actually creating a crime for the purpose of prosecution. The former is completely acceptable as is police conduct that is directed only at obtaining evidence of an offence when committed: see Amato, supra, per Estey J. at p. 62 C.C.C., p. 446 S.C.R. The concern is rather with law enforcement techniques that involve conduct that the citizenry cannot tolerate. In many cases the particular facts may constitute a classic example of what may be referred to as “entrapment” which has been described by an American judge as “the conception and planning of an offence by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer”: Sorrells v. United States, 287 U.S. 435 at p. 454 (1932), per Roberts J., cited by Dickson CJ.C. in Jewitt, supra, at p. 21 C.C.C., p. 145 S.C.R

II. The jurisprudence

A: Canadian developments
The defence of entrapment was considered by the court in Amato, supra. The accused was convicted of two counts of trafficking in cocaine. The British Columbia Court of Appeal affirmed the convictions and a further appeal was dismissed by this court, Laskin CJ.C. and Estey, McIntyre and Lamer JJ. dissenting.

Writing on behalf of himself, Martland, Beetz and Chouinard JJ., Dickson J. (as he then was) was of the view that assuming the defence of entrapment to be available it did not arise on the facts of the case (p. 40 C.C.C., p. 464 S.C.R.). He referred to the conclusions of the trial judge and the judges of the British Columbia Court of Appeal and stated (at p. 41 C.C.C., p. 466 S.C.R):

The four British Columbia judges before whom the matter has come have been unanimous in concluding that, on the facts, the defence of entrapment does not arise. It does not seem to me to fall to this court to retry the case and arrive at different findings.

Mr. Justice Ritchie, writing for himself, was of the view that entrapment was available in defence to a charge in circumstances which he describes as follows (at p.40 C.C.C., p.473 S.C.R.):

In my view, it is only where police tactics are such as to leave no room for the formation of independent criminal intent by the accused that the question of entrapment can enter into the determination of his guilt or innocence.

Although Ritchie J. was of the view that the record disclosed the police instigated the course of events and Amato was “simply an incidental factor necessarily employed by the police” to achieve the objective of locating drug sources (pp. 34-5 C.C.C, pp. 4673 S.C.R.), he did not think the accused’s evidence was sufficient to support the claim of entrapment (p. 39 C.C.C., p. 472 S.C.R.):

It was contended in the present case that Amato was subjected to a threat of violence against himself if he failed to co-operate with the police plan for procuring the drug. If this had in fact been the case I am satisfied that it might well have supported a defence of entrapment, but a careful study of the evidence fails to disclose to me that there was any such threat although the police officer who was allegedly seeking drugs for some “strong-arm” operators from the United States did make mention of the fact that they carried firearms and this apparently made Amato nervous.

Whether the activities of the police can be said to have amounted to the”calculated inveigling or persistent importuning” by the police mentioned by Mr. Justice Laskin (as he then was) in R. v. Ormerod, [1969] 4 C.C.C. 3 at p.11, [1969] 2 O.R. 230 at p.238,6 C.R.N.S. 37, must depend on the facts of each case and in the present case, although drug transactions were suggested to Amato by an agent provocateur, this is not of itself enough to invoke the defence of entrapment or to affect the fact that Amato must have known that what he was doing was wrong.

Estey J. writing for himself, Laskin C.J.C., McIntyre and Lamer., also held that the defence of entrapment existed in Canadian law, not as a traditional substantive defence, but as an aspect of the abuse of process doctrine which enabled a court to enter a stay of proceedings in circumstances where allowing the accused to stand trial would offend the courts’ sense of justice. On the facts, Estey J. concluded that the accused was entrapped and thus he would have allowed the appeal. Of importance for the purposes of the present appeal is the analytical approach set out by Estey J. which differs markedly from that found in the opinion of Justice Ritchie.

Estey J.’s opinion provides a summary of the doctrine of entrapment in the United States, Canada and the United Kingdom as it has emerged in the jurisprudence and as discussed in various proposals for law reform in these jurisdictions. I will refer to some of these developments later. The key parts of the judgment of Estey J. may be found at pp. 653 C.C.C., pp. 445-7 S.C.R., where he outlines the rationale and criteria for the application of the defence....

III. The rationale

A: The regulation of the administration of justice

It is critical in an analysis of the doctrine of entrapment to be very clear on the rationale for its recognition in Canadian criminal law. Much of what is contained in the opinion of Justice Estey in Amato, supra, provides this rationale. As was explained by Estey J., central to our judicial system is the belief that the integrity of the court must be maintained. This is a basic principle upon which many other principles and rules depend. If the court is unable to preserve its own dignity by upholding values that our society views as essential, we will not long have a legal system which can pride itself on its commitment to justice and truth and which commands the respect of the community it serves. It is a deeply ingrained value in our democratic system that the ends do not justify the means. In particular, evidence or convictions may, at times, be obtained at too high a price. This proposition explains why as a society we insist on respect for individual rights and procedural guarantees in the criminal justice system. All of these values are reflected in specific provisions of the Charter such as the right to counsel, the right to remain silent, the presumption of innocence and in the global concept of fundamental justice. Obviously, many of the rights in ss. 7 and 14 of the Charter relate to norms for the proper conduct of criminal investigations and trials, and the courts are called on to ensure that these standards are observed.

The principles expressed in the Charter obviously do not emerge in a legal, social, or philosophical vacuum. with respect to criminal law in particular, the courts have, throughout the development of the common law and the interpretation of statutes, consistently sought to ensure that the balance of power between the individual accused and the state was such that the interests and legitimate expectations of both would be recognized and protected. Lord Devil, in Connelly v. D.P.P., [1964] 2 All E.R. 401 (ALL.), made the following apposite observation in this regard (at p. 438):

... nearly the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accused. The doctrine of autrefois was itself doubtless evolved in that way.

It is my view that in criminal law the doctrine of abuse of process draws on the notion that the state is limited in the way it may deal with its citizens. The same maybe said of the Charter which sets out particular limitations on state action and, as noted, in the criminal law context ss. 7 to 14 are especially significant. This court in Reference res. 94(2) of Motor Vehicle Act (1985), 23 C.C.C. (3d) 289, 24 D.L.R. (4th) 536, [1985] 2 S.C.R. 486 (S.C.C.), commented on the philosophical context in which these Charter provisions operate (at p.302 C.C.C., p. 503 S.C.R.):

Thus, ss. 8 to 14 provide an invaluable key to the meaning of “principles of fundamental justice”. Many have been developed over time as presumptions of the common law, others have found expression in the international conventions on human rights. All have been recognized as essential elements of a system for the administration of justice which founded upon a belief in “the dignity and worth of the human person” (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on “the rule of law”: (preamble to the Canadian Charter of Rights and Freedoms).

It is this common thread which, in my view, must guide us in determining the scope and content of principles of fundamental justice. In other words, the principles of fundamental justice are to be found m the basic tenets of our legal system. Obey do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system. Such an approach to the interpretation of “principles of fundamental justices is consistent with the wording and structure of s.7, the context of the section, i.e., ss. 8 to 14, and the character and larger objects of the Charter itself. It provides meaningful content for the s.7 guarantee all the while avoiding adjudication of policy matters. (Emphasis added.)

It is the belief that the administration of justice must be kept free from disrepute that compels recognition of the doctrine of entrapment. In the context of the Charter, this court has stated that disrepute may arise from “judicial condonation of unacceptable conduct by the investigatory and prosecutional agencies”: Collins v. The Queen (1987), 33 C.C.C. (3d) 1 at pp. 16-7, 38 D.L.R. (4th) 508, [1987l 1 S.C.R.265 at p. 281 (S.C.C.). The same principle applies with respect to the common law doctrine of abuse of process. Conduct which is unacceptable is, in essence, that which violates our notions of “fair play and “decency and which shows blatant disregard for the qualities of humanness which all of us share.

The power of a court to enter a stay of proceedings to prevent an abuse of its process was, as noted earlier, confirmed by this court in Jewitt, supra . The appropriateness of the court’s exercise of the power, as well as the circumstances in which it maybe used, is discussed in the following passage (at p. 14 C.C.C., pp. 13 & 7 S.C.R., per  Dickson C.J.C.):

I would adopt the conclusion of the Ontario Court of Appeal in R. v. Young, supra, and affirm that [at p.31]:

“... there is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings. I would also adopt the caveat added by the court in Young that this is a power which can be exercised only in the “clearest of cases.”

It is essential to identify why we do not accept policy strategy that amounts to entrapment. There could be any number of reasons underlying what is perhaps an intuitive reaction against such law enforcement techniques but the following are, in my view, predominant. One reason is that the state does not have unlimited power to intrude into our personal lives or to randomly test the virtue of individuals. Another is the concern that entrapment techniques may result in the commission of crimes by people who would not otherwise have become involved in criminal conduct. There is perhaps a sense that the police should not themselves commit crimes or engage in unlawful activity solely for the purpose of entrapping others, as this seems to militate against the principle of the rule of law. We may feel that the manufacture of crime is not an appropriate use of the police power. It can be argued as well that people are already subjected to sufficient pressure to turn away from temptation and conduct themselves in a manner that conforms to ideals of morality; little is to be gained by adding to these existing burdens. ‘Ultimately, we may be saying that there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions. These reasons and others support the view that there is a societal interest in limiting the use of entrapment techniques by the state.

The competing social interest is in the repression of criminal activity. Further, our dependence on the police to actively protect us from the immense social and personal cost of crime must be acknowledged. There will be differing views as to the appropriate balance between the concepts of fairness and justice and the need for protection from crime but it is my opinion that it is universally recognized that some balance is absolutely essential to our conception of civilized society. In deciding where the balance lies in any given case it is necessary to recall the key elements of our model of fairness and justice, as this is the only manner in which we can judge the legitimacy of a particular law enforcement technique.

It must be stressed, however, that the central issue is not the power of a court to discipline police or prosecutorial conduct but, as stated by Estey J. in Amato, supra (at p. 73 C.C.C., p. 461 S.C.R.): “the avoidance of the improper invocation by the State of the judicial process and its powers”. In the entrapment context, the court’s sense of justice is offended by the spectacle of an accused being convicted of an offence which is the work of the state (Amato, supra, at p. 62 C.C.C., p. 447 S.C.R.). The court is, in effect, saying it cannot condone or be seen to lend a stamp of approval to behaviour which transcends what our society perceives to be acceptable on the part of the state. The stay of the prosecution of the accused is the manifestation of the court’s disapproval of the state’s conduct. The issuance of the stay obviously benefits the accused but the court is primarily concerned with a larger issue: the maintenance of the public confidence in the legal and judicial process. In this way, the benefit to the accused is really a derivative one. We should affirm the decision of Estey J., in Amato, supra, that the basis upon which entrapment is recognized lies in the need to preserve the purl of administration of justice.

B. The guilt of the accused
Both the appellant and respondent agree that the rationale for recognition of the entrapment doctrine lies in the inherent jurisdiction of the court to prevent an abuse of its own processes. The respondent asserts this is the exclusive rationale; the appellant submits that it is open to the court to view entrapment as also bearing on the accused’s culpability and as such it would operate as a substantive defence.

It is not fruitful, in my view, to deal with impermissible police conduct through the vehicle of substantive criminal law doctrine. There are three problems with the appellants proposition. First, the conduct of the police or their agents in most cases will not have the effect of negating mens rea or, for that matter, actus reds. (There maybe exceptional cases however; see, for example, the decision of this court in Lemieux v. The Queen, [1968] 1 C.C.C. 187, 63 D.L.R. (2d) 75, [1967] S.C.R. 492 (S.C.C.).) The physical act of the accused is a voluntary one and the accused will have an aware state of mind. The prohibited act will have been committed intentionally and with knowledge of the facts which constitute the offence and the consequences which flow from them.

However they may be defined, the essential elements of the offence in issue will have been met in most cases, and it is from this general position that the doctrine of entrapment should develop. The decision of Estey J. in Amato, supra, and Dickson C.J.C. in Jewitt, supra, may also be seen to support this perspective. In a passage cited earlier, Estey J. stated (at p. 61 C.C.C., p. 445 S.C.R.):

A successful defence leads to an acquittal on the charge, a determination that the offence has not been committed by the accused. Here, axiomatically, the crime, from a physical point of view, at least, has been committed. Indeed, it may be that the necessary intent and act have combined to form a complete crime.

The following comments of Dickson C.J.C. in Jewitt, supra, are worthy of attention and are, in my view, equally applicable to the present discussion (at p. 23 C.C.C., p. 148 S.C.R.):
We are concerned here with a stay of proceedings because of an abuse of process by the Crown. While a stay of proceedings of this nature will have the same result as an acquittal and will be such a final determination of the issue that it will sustain a plea of autrefois acquit, its assimilation to an acquittal should only be for purposes of enabling an appeal by the Crown. Otherwise, the two concepts are not equated. The stay of proceedings for abuse of process is given as a substitute for an acquittal because, while on the merits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction. No consideration of the merits—that is whether the accused is guilty independently of a consideration of the conduct of the Grown—is required to justify a stay. In the case at bar the accused admitted that he had sold a pound of marijuana to an undercover officer. A consideration of the merits would necessarily have led to his conviction. The stay in this case intervenes to prevent consideration of the merits lest a conviction occur in circumstances which would bring the administration of justice into disrepute. (Emphasis added.)

Secondly, while the argument that the accused is not culpable because his or her conduct may be excused is more plausible, it is ultimately not compelling. For entrapment to be recognized as an excusing defence, it is clear that the focus must be directed at the effect of the external or internal circumstances on the accused....

There is a distinction in the type of pressure an accused is faced with in a situation involving duress or necessity, and the type of pressure brought to bear on an accused through entrapment techniques. For example, with respect to duress, s. 17 of the Code requires that the accused be threatened with “immediate death or bodily harm”. Similarly, the defence of necessity requires that the “situation be urgent and the peril be imminent” so that “normal human instincts cry out for action and make a counsel of patience unreasonable” (Perka, supra, at p. 400 C.C.C., p. 251 S.C.R.). Can it really be said that in an entrapment situation the accused is placed in circumstances which are equally traumatic? I do not think this is the case, and this is precisely the reason why a stay is entered instead of an acquittal. The accused in a typical entrapment situation is not being threatened with death or bodily harm and nor is peril imminent. I agree that there is a limit, imposed by external events, on the accused’s freedom of choice of action in all three cases of duress, necessity and entrapment; there is, however, a great difference in the quality and degree of pressure in the entrapment situation: it is less intense and the circumstances are not morally agonising to the accused.

The criminal law, as noted by Professor Eric Colvin in his text Principles of Criminal Law (1986), has recognized as defences “ [o]nly the strongest of excuses” (at p. 166). It is my considered opinion that entrapment is not an exculpating defence and I find absolutely no merit in the idea that the entrapment is a justifying defence because it cannot be said that the accused’s commission of the crime by reason of police pressure was not wrongful.

There is a third and perhaps more fundamental problem with the notion that entrapment related to the blameworthiness or culpability of the accused: if this is the proper theoretical foundation for allowing the claim of entrapment, then on what principled basis can we justify limiting the defence to situations where it is the state, and not a private citizen, who is the entrapping party? Professor Colvin makes this point in the following passage (ibid., at p.232):

Considering entrapment from the standpoint of the theory of criminal culpability, the better arguments are for recognizing the defence in a procedural rather than an exculpatory form. This is not to deny that circumstances of entrapment can sometimes provide an excuse which might merit recognition by way of a special defence. But, if the argument for an excusing defence is accepted, it demands much more than the entrapment defence as it has been hitherto conceived. The arguments for an entrapment defence have been made with respect to entrapment by the police or their agents. Yet in almost all cases, the accused would not have known who was entrapping him. It is therefore immaterial to his culpability whether it happened to be the police or someone else. The argument for an excusing defence can only be sustained as an argument for a defence of wider application, available wherever someone has been pressured into committing an offence by another person. The defence of duress represents a limited concession to the view that exculpation can be appropriate in this kind of situation. There has, however, been little support for extending its rationale to cases of persistent solicitation. In addition, the arguments for making entrapment an excusing defence have generally been confined to entrapment by the police or their agents. If the defence is to be subject to this limitation, it is best conceived as an aspect of abuse of process. (Citations omitted.)

It could be argued, as an American author has, that the limitation to police and their agents is necessary to avoid collusion between co-conspirators, for example where one conspirator takes the blame for the commission of an offence by testifying he or she entrapped the co-conspirators, and also to avoid false claims of entrapment against people who cannot be located by the prosecution. The writer asserts it would be defence to circumstances in which these policies would be served simultaneously” (p. 242). difficult to ascertain the truth if such testimony is uncontradicted: see Park, R., “The Entrapment Controversy” 60 Minn. L.R. 163, pp.241-2 (1976). The second point urged by this author is that in addition to being concerned with culpability, the defence has the objective of  maintaining the purity of the courts and controlling police conduct and one “may properly limit the defense to circumstances in which these policies would be served simultaneously” (p. 242).

I do not find either of these two arguments persuasive of the proposition for which they are put forward. First of all, I would note that the authors of the majority opinions in the United States Supreme Court make no effort to justify the lack of extension of the defence to entrapment by private persons on any grounds, let alone either of the two described above. This suggests to me that the issue is not the appropriateness of limiting the defence to entrapment by police or their agents, but rather the assumed inappropriateness of extending the defence any further. The reasons for not extending it do not relate to blameworthiness.

Even if I were of the view, which I am not, that the fundamental reason behind recognizing the claim of entrapment is culpability, I could not accept Professor Park’s justifications for restricting the defence. The concern regarding collusion among co-conspirators exists in the defence of duress as well. The credibility of the testimony of a co-conspirator who admits to entrapment under an agreement to take the blame for the commission of an offence would have to be carefully considered even assuming it would be a common event for one conspirator to play the part of a martyr. I think this proposition is a bit unrealistic but even if it is not, a trier of fact would not likely be misled by invalid claims by co-conspirators. Further, under s. 17 of the Code, individuals who are parties to a conspiracy or association whereby they are subject to compulsion are disentitled to claim duress as a defence. Similarly, in England, where the defence of duress is  governed by the common law, it has been held that the defence is unavailable to those who commit an offence under pressure, if at the time of commission they are active members of a criminal organization or association that they joined voluntarily and with the knowledge that the association might put pressure on       them to commit an offence: see R. v. Sharp, [1987] 3 All E.R. 103 (C.C.A.); and see also, R. v. Howe, [1987] 1 All E.R. 771 (H.L.) per Lord Halisham at p.782, and per Lord Griffiths at p. 786, both citing R. v. Fitzpatrick, [1977] N. I.20 (N.I.C.C.A).

The spectre of false allegations by people is also an unsatisfactory basis upon which to deny the availability of the defence to those who are not falsely claiming that they have been entrapped. In the situation where the alleged entrapper cannot be found the issue would fall to be resolved by reference to the credibility of the accused and, if necessary, to any facts which support or undermine the accused’s version of events. In all truly difficult cases, the trier of fact may be trusted to ascertain the truth to the degree necessary to either uphold or reject the defence.

I also reject the second argument put forward by Professor Park, namely, that it is proper to limit the defence to cases where the culpability concern and assessment of police conduct concern can both be met. This simply illustrates that the real issue is the conduct of the state and the effect that conduct has on the administration of justice. Further, an American court following the subjective approach will convict a predisposed accused even if the police conduct was particularly offensive unless, perhaps, it was so outrageous as to trigger a due process defence. It is my view that it would bring the administration of justice into disrepute to permit a conviction in those circumstances and the goal of preserving respect to the courts would be undermined. This illustrates that a fusion of the culpability and administration of justice rationales produces a doctrine which is misguided with respect to blameworthiness and too restrictive to achieve the objective of preserving respect for the administration of justice.

I remain firmly of the view that the true basis for allowing an accused the defence of entrapment is not culpability. I will summarize the main reasons. First, in most cases the essential elements of the offence will have been met. Secondly, the circumstances in which an accused is placed in an entrapment situation are not agonizing in the sense acknowledged by the defences of duress or necessity. Where the police conduct does amount to duress, that defence can be pleaded in conjunction with an abuse of process allegation. I would note, however, that any “threats” by the police, even if insufficient to support the defence of duress, will be highly relevant in the assessment of police conduct for the purpose of an abuse of process claim. The third reason why I am unwilling to view entrapment as relating to culpability is that if it did, there would not be a valid basis on which to limit the defence to entrapment by the state. The lack of support for an extension of the defence to provide against entrapment by private citizens demonstrates that the real problem is with the propriety of the state employing such law enforcement techniques for the purpose of obtaining convictions. If this is accepted, then it follows that the focus must be on the police conduct.

IV. The proper approach

The next and more difficult issue to be considered is what is the appropriate method of determining whether police conduct has exceeded permissible limits such that allowing a trial to proceed would constitute an abuse of process? The objective and subjective approaches as revealed in the writings of the United States Supreme Court have each been soundly criticized and there is some difficulty in disentangling oneself from the accepted definitions of the terms subjective’’ and “objective”, or from the explanations of these two types of analysis. As far as possible, however, I would like to consider the issue from a clean slate and decide what is appropriate in the Canadian context. Before doing so, however, the decision of Estey J. in Amato, supra, must be reviewed.

In Amato, Estey J. accepted the rationale of the minority in the United States Supreme Court, and this might seem to dictate a concurrent acceptance of the minority’s method of inquiry, which is to ask if a hypothetical nonpredisposed person would likely have been induced to commit an offence; if so, the police have gone beyond providing merely an opportunity for criminal activity: Sherman, supra, per Frankfurter J., at p. 384. It appears, however, that Estey J. articulated a test which has both subjective and objective components. For ease of reference I will paraphrase the essential elements of the defence as stated by Estey J. in Amato, at pp. 61-2 C.C.C., p.446 S.C.R.:

1. a) The offence must be instigated, originated or brought about by the police; b) the accused must be ensnared into the commission of the offence by the police conduct. 2. The purpose of the scheme must be to gain evidence for the prosecution of the accused for the very crime which has been so instigated. 3. The inducement may include, among other things, deceit, fraud, trickery or reward and will usually, although not necessarily, consist of calculated inveigling and persistent importuning. 4. The character of the initiative taken by the police is unaffected by the fact that the law enforcement agency is represented by a member of a police force or an undercover or other agent, paid or unpaid, but operating under the control of the police. 5. In the result the scheme must be considered, in all the circumstances, so shocking and outrageous as to bring the administration of justice into disrepute. 6. In examining the character in law of the police conduct—for example, persistent importuning—the existence of reasonable suspicion on behalf of the police that the accused would commit the offence without inducement is relevant. 7. By itself and without more the predisposition in fact of the accused is not relevant to the availability of the defence.

It is evident to me that Justice Estey’s criteria have nothing to do with a determination of whether the particular accused should be excused from the commission of the crime. The question is whether the conduct of the police has exceeded acceptable limits. The issue is whether this conduct should be evaluated in light of the particular accused or whether the analysis should be more detached and focus on police conduct with accused persons generally. I have come to the conclusion that it is the latter method of analysis which is the most consistent with the reasons for recognizing the doctrine of entrapment, and which best achieves the objective of ensuring that the administration of justice commands the respect of the community.

There is a danger that a court will be misled into a subjective analysis focusing on the effect of the police conduct on the particular accused because of some of the wording used by Estey J. in Amato, supra. This appears to be the approach taken by the trial judge in the present case. Since I concurred in that opinion it is necessary to explain what I believe to have been the meaning of Estey J.’s opinion and further, to expand on parts of the test enunciated in Amato, supra. It has for example, been noted by Professor France in his article, “Problems in the Defence of Entrapment”, 22 U.B.C. L Rev 1 at p. 12 (1988), that Estey J.’s use of certain turns of phrase may lead to a predisposition inquiry:

The use of the word “ensnare” is confusing. The requirement that the accusedbe ensnared may just be a reference to the factual necessity that the commission of the offence must have been in response to the efforts of the government agent. If this is the case though, it seems to add little to the preceding condition that the offence be brought about by the agent. The concern here is that the word is morelikely to be seen as suggesting some predisposition inquiry, it must be the government agent’s conduct alone that prompted the accused to offend, or in  other words, that the accused would not have otherwise offended.  It is not suggested that Estey J. meant this, but hindsight suggests it is an unhappy word to have used.

In the same manner, the reference to the “reasonable suspicion” of the police as being a relevant circumstance could be interpreted as begging a predisposition-based analysis. In other words, if the police believe the accused would have committed the offence without inducement, does this mean they believe he or she was predisposed to commit the offence, and therefore their conduct is justified? If this is how the reference to “reasonable suspicion” is interpreted, it would have the effect of indirectly incorporating a predisposition analysis. I concede that it is hard to deny the relevance of the reasonable suspicions of the police in assessing their conduct towards a particular accused, and I will explain later at what stage of the analysis it should be taken into account.

It could also be argued that the use of the term “entrapment” itself dictates an inquiry into the predisposition of the individual accused. The argument is really one of causation. As I understand it, the idea is that even if the police conduct, viewed objectively, has gone further than the provision of anopportunity, in the case of an accused who is predisposed, it cannot be said that the reason or cause for his or her commission of the offence is the actions of thepolice; rather, it is because of the accused’s predisposition to crime. In my opinion, the test for entrapment cannot be safely based on the assumption that a predisposed person can never be responding to police conduct in the same way a non-predisposed person could be. It is always possible that, notwithstanding a person’s predisposition, in the particular case it is the conduct of the police which has led the accused into the commission of a crime.

Those who argue for an inquiry into predisposition, and thereby deny the availability of an allegation of police misconduct, ignore this possibility. I am unwilling to do so. Obviously it is difficult to determine exactly what caused the accused’s actions, but given that the focus is not the accused’s state of mind but rather the conduct of the police, I think it is sufficient for the accused to demonstrate that viewed objectively, the police conduct is improper. To justify police entrapment techniques on the ground that they were directed at a predisposed individual is to permit unequal treatment. I gratefully adopt the criticisms espoused in the minority and dissenting opinions of the judgments of the United States Supreme Court discussed earlier, which have convinced me of the fundamental inequality inherent in an approach that measures the permissibility of entrapment by reference to the predisposition of the accused.

Further, the predisposition approach amounts in most cases to little more than an ex post facto justification for behaviour which would be unacceptable if directed at a non-predisposed person, and the reasoning process is quite illogical. For example, in those courts following a subjective approach, once predisposition is admitted, there can be no defence of entrapment, regardless of whether the conduct, objectively considered, appears to go beyond the mere provision of an opportunity to commit a crime. It seems to me, however, that since, according to the definition used in the United States Supreme Court, a predisposed person is one who would commit an offence when given the opportunity, the fact that the police must go further to attract a person into the commission of an offence suggests that the person was not predisposed. This demonstrates that the police were wrong; it hardly supports the idea that it is logical to preclude an entrapment claim by predisposed persons who have been provided with more than an opportunity. There is an additional concern that the mere fact that the accused committed the crime may be taken to demonstrate predisposition, and again this would preclude any analysis of the propriety of the police behaviour. For these reasons, I have come to the conclusion that the subjective approach followed by the majority of the United States Supreme Court is fundamentally flawed and is inconsistent with the rationale I have accepted for the doctrine of entrapment.

I do not interpret what was said in Amato as in any way endorsing a predisposition-based inquiry, and I am confirmed in this view by Estey J.’s statement that “By itself and without more the predisposition in fact of the accused is not relevant to the availability of the defence”: Amato, supra, at p?. C.C.C., p. 446 S.C.R., emphasis added. Further, the statement of Estey J. with respect to the police suspicion that the accused would commit the offence without inducement, properly understood, does not import an inquiry into the predisposition of the particular accused. I take this statement to mean that the police are entitled to provide opportunities for the commission of offences where they have reasonable suspicion to believe that the individuals in question are already engaged in criminal conduct. The absence of a reasonable suspicion may establish a defence of entrapment for two reasons: first, it may indicate the police are engaged in random virtue-testing or, worse, are carrying on in that way for dubious motives unrelated to the investigation and repression of crimes and are as such mala fides.

Of course, in certain situations the police may not know the identity of specific individuals, but they do know certain other facts, such as a particular location or area where it is reasonably suspected that certain criminal activity is occurring. In those cases it is clearly permissible to provide opportunities to people associated with the location under suspicion, even if these people are not themselves under suspicion. This latter situation, however, is only justified if the police acted in the course of a bona fide investigation and are not engaged in random virtue-testing. While, in the course of such an operation, affording an opportunity in a random way to persons might unfortunately result in attracting into committing a crime someone who would not otherwise have had any involvement in criminal conduct, it is inevitable if we are to afford our police the means of coping with organized crime such as the drug trade and certain forms of prostitution to name but those two.

To illustrate mala fides conduct, consider the following: a police officer, who disapproves of parole, sends prostitutes hoping to solicit male parolees on, let us say, their first day out of the penitentiary, in order to get them to commit an offence and so have parole revoked.

To illustrate conduct which is suggestive of random virtue-testing and which has the serious unnecessary risk of attracting innocent and otherwise law-abiding individuals into the commission of a criminal offence, consider the situation where a police officer decides he wants to increase his performance in court. To this end he plants a wallet with money in an obvious location in a park, and ensures that the wallet contains full identification of the owner. Someone may walk up, take the money and throw away the wallet and the identification; he would then arrest and charge that person. In my opinion, whether or not we are willing to say the average person would steal the money, this policeman has acted without any grounds, and his conduct carries the unnecessary risk that otherwise law-abiding people will commit a criminal offence. On the other hand, consider the situation where the police have received many complaints with respect to a theft of handbags in, for example, a bus terminal. If in the course of a bona fide inquiry, the police plant a handbag in an obvious location in the bus terminal and then arrest and charge the person who took the bag, I am of the opinion that this would not be a situation of entrapment. Despite the fact that the second of these three situations actually occurred in the United States, there is no indication that the police in this country are anywhere engaged in this type of conduct, and I doubt that entrapment cases in this country will raise allegations of this sort. I point it out because I think these extreme and unlikely examples illustrate that, at a very basic level, we do not expect to have contact with the police unless we have done something to trigger their suspicions, or unless we happen to be in the vicinity or reach of a bona fide investigation of criminal activity. Further, I think this type of situation must be considered, if only to ensure that the structure of the doctrine of entrapment is internally coherent.

The past criminal conduct of an individual is relevant only if it can be linked to other factors leading the police to a reasonable suspicion that the individual is engaged in a criminal activity. Furthermore, the mere fact that a person was involved in a criminal activity some time in the past is not a sufficient ground for “reasonable suspicion”. But when such suspicion exists, the police may provide that person with an opportunity to commit an offence. Obviously, there must be some rational connection and proportionality between the crime for which police have this reasonable suspicion and the crime for which the police provide the accused with the opportunity to commit. For example, if an individual is suspected of being involved in the drug trade, this fact alone will not justify the police providing the person with an opportunity to commit a totally unrelated offence. In addition, the sole fact that a person is suspected of being frequently in possession of marijuana does not alone justify the police providinghim or her with the opportunity to commit a much more serious offence, such as importing narcotics, although other facts may justify them doing so.

There should also be a sufficient temporal connection. If the reasonable suspicions of the police arise by virtue of the individual’s conduct, then this conduct must not be too remote in time. I would note, however, that the reasonable suspicions of the police could be based on many factors and that it is not necessary for one of these factors to be a prior conviction. If the police have obtained information leading to a reasonable suspicion that a person is engaged in criminal activity, it will be enough of a basis for them to provide that person with the opportunity to commit an offence—the presence of a prior criminal record is not a prerequisite to the formation of reasonable suspicion. I do not think the requirement that the police act on reasonable suspicion is unduly onerous; from a common sense viewpoint it is likely that the police would not waste valuable resources attempting to attract unknown individuals into the commission of offences. It can perhaps be safely assumed, therefore, that the police will act on such grounds.

To summarize then, the police must not, and it is entrapment to do so, offer people opportunities to commit crime unless they have a reasonable suspicion that such people are already engaged in criminal activity or, unless such an offer is made in the course of a bona fide investigation. In addition, the mere existence of a prior record is not usually sufficient to ground a “reasonable suspicion”. These situations will be rare, in my opinion. If the accused is not alleging this form of entrapment the central question in a particular case will be: have the police gone further than providing an opportunity and instead employed tactics designed to induce someone into the commission of an offence?

There is, therefore, entrapment when: (a) the authorities provide an opportunity to persons to commit an offence without reasonable suspicion or acting mala fides, as explained earlier or, (b) having a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. As I have already mentioned, the first form of entrapment is not likely to occur. The police of this country are generally resorting to the type of investigatory technique of providing opportunities only in relation to targeted people or locations clearly, and therefore reasonably, suspected of being involved in or associated with criminal activity, or again are already engaged in a bona fide investigation justifying the provision of such opportunities.

As regards the latter form of entrapment, to determine whether police conduct gives rise to this concern, it is useful to consider whether the conduct of the police would have induced the average person in the position of the accused, i.e., a person with both strengths and weaknesses, into committing the crime. I believe such a test is useful not only as an analytical mechanism that is consistent with objective analysis, but also because it corresponds to one of the reasons why the defence is thought desirable. In other words, it may be inevitable that when apprised of the factual context of an entrapment case, members of the community will put themselves in the position of the accused; if a common response would be that anyone could have been induced by such conduct, this is a valuable sign that the police have exceeded the bounds of propriety. The reasoning does not go so far as to imply that the accused is therefore less blameworthy; rather, it suggests that the state is involved in the manufacture as opposed to the detection of crime.

An objective approach which uses the hypothetical-person test only is subject to some criticism. For example, Professor Park argues (ibid., at pp.270-1):

The defence creates a risk that dangerous chronic offenders will be acquitted because they were offered inducements that might have tempted a hypothetical law-abiding person. More subtly, it creates a danger that persons will be convicted who do not deserve punishment. This danger stems from its attempts to evaluate the quality of government conduct without considering the defendant’s culpability. The notion that sauce for the wolf is sauce for the lamb leads to unhappy consequences, since the sauce will be brewed with wolves in mind. Because many targets are professional criminals, judges will be reluctant to rule that entrapment has occurred simply because an agent found it necessary to appeal to friendship, make multiple requests, or offer a substantial profit. Yet approval of such conduct would lead to unfair results in cases where the target was law-abiding but ductile. For example, conviction of someone who has been solicited by a friend may be fair enough in the general run of cases, but unfair if the target was a nonpredisposed person who would not have committed the type of crime charged but for a request from that particular friend.

The response to this is twofold. First, I agree that there is a danger of convicting “lambs” or people who have a particular vulnerability such as a mental handicap or who are suffering from an addiction. In those situations, it is desirable for the purposes of analysis to consider whether the conduct was likely to induce criminal conduct in those people who share the characteristic which appears to have been exploited by the police. I am not, however, in agreement with the assertion that it is fair for the police in the general run of cases to abuse a close relationship between friends or family members as compared to that between acquaintances, contacts or associates, for the purpose of inducing someone into the commission of an offence, and thus I do not consider this a valid criticism of the hypothetical-person test. The nature of the relationship at issue is relevant and in certain cases it may be that the police have exploited confidence and trust between people in such a manner as to offend the value society places on maintaining the dignity and privacy of interpersonal relationships.

Secondly, I do not find the danger of acquitting wolves particularly troublesome. It assumes that it cannot be said the chance exists that a predisposed person would not have committed the particular offence were it not for the use of inducements that would have caused a nonpredisposed person to commit the offence. More fundamentally, this perspective is part of a larger viewpoint that in certain cases it would be better for society to send someone to jail for committing a crime, even if fundamental rights and procedural guarantees normally provided to an accused have been disregarded. The familiar refrain is that the end justifies the means. This view is, however, entirely inconsistent with the model of fairness which exists both within and alongside substantive criminal law doctrine. Could not the same comment of “acquitting wolves” be made where an accused’s right to counsel or to remain silent have been flagrantly violated, and the evidence of his or her confession to the crime is excluded? In the short term, it may well be “better” for society to convict such persons, but it has always been held that in the long term it would undermine the system itself. If the rule of law is to have any meaning and provide the security which all in society desire, it is axiomatic that it be extended to every individual.

I am not of the view that the hypothetical or average person model is the only relevant method of analysis. There may be situations where it cannot be concluded that a hypothetical person would likely have committed the offence under the same circumstances, and yet the presence of other factors support the conclusion that the police involvement in the instigation of crime has exceeded the bounds of propriety. When a court is of this view, the mere fact that the hypothetical-person model of analysis is not appropriate does not mean the conduct does not amount to an abuse of process. Each situation will have to be considered on its own merits, and with a view to determining whether the police have gone beyond merely providing the opportunity for the commission of a crime and have entered into the realm of the manufacture of criminal conduct. I would, at this point, re-emphasize Estey J.’s observation that it is not possible to state at the outset which elements will be decisive in an entrapment scenario. None the less, it is possible to outline what factors will be relevant and I will attempt to suggest some of them.

I remain in agreement with Estey J.’s statement that “the inducement maybe but is not limited to deceit, fraud, trickery or reward, and ordinarily but not necessarily will consist of calculated inveigling and persistent importuning” (p. 61 C.C.C., p.446 S.C.R.), but there is no magic number of requests made on behalf of the police to the accused that will trigger the defence. I would also agree that the scheme must have been for the purpose Justice Estey indicated and that state’s responsibility extends to those people who operate on its behalf in an entrapment situation. It is also necessary for the offence to be “instigated, originated or brought about by the police”, but this is clearly a minimum standard since in cases where the police merely provide a person with the opportunity to commit an offence, it could be said that the same requirement will be met. Similarly, it can be said that in any offence instigated by the police, the offence would not have been committed without their involvement. Taken alone, these requirements are insufficient to determine when police conduct goes beyond what is generally thought to be acceptable in protecting society from crime.

In certain cases, the police conduct will be offensive because it exploits human characteristics that as a society we feel should be respected. As I noted earlier, if the law enforcement officer or agent appeals to a person’s instincts of compassion, sympathy and friendship and uses these qualities of a person to effect the commission of a crime, we may say this is not permissible conduct because it violates individual privacy and the dignity of interpersonal relationships, and condemns behaviour that we want to encourage. (Such appeals may generally indicate that more than a mere opportunity is being provided, although it must be recalled that the police or agents will in the detection of certain crimes have to infiltrate criminal organizations, and thus gain the confidence of the people involved.) Along the same lines, if the police appear to exploit a particular vulnerability of an individual, such as by encouraging one who suffers from a mental handicap to commit a crime, this too may strike us as patently offensive because such a person is in need of protection, and not abuse. Similarly, the inducement of those attempting to recover from drug or alcohol addiction into committing offences relating to those substances may not be proper since the result will be to retard, as opposed to advance, the interest of society in reducing the personal and social costs of drug and alcohol abuse.

In some cases, we may find that the degree of police involvement is disproportionate to the crime committed by the accused in so far as it causes more harm than it seeks to catch. In addition, we maybe offended by disproportionality in the role played by the police in the criminal activity ascompared with the role played by the person being targeted. In assessing this, the timing of the police involvement, and whether the criminal activity is ongoing, should be considered. Whether the police or their agents themselves commit crimes in the course of efforts to induce another is relevant, but I am not willing to lay down an absolute rule prohibiting the involvement of the state in illegal conduct.

Earlier I noted that one indication of impermissible action on the part of the state would be the existence of any threats, implied or express, made to the individual being targeted by inducement techniques. If the strategy used carries the risk of potential harm to third parties, this too should be considered and, absent exceptional circumstances, condemned. A further consideration, if the facts so warrant, would be the extent to which the conduct of the police is directed at undermining other constitutional values, such as legitimate exercises of freedom of thought, belief, opinion and association.

The above description of activity is not intended to be exhaustive in terms of possible situations, or conclusive in the assessment of propriety. It is meant only to illustrate that in any number of situations, the reason why something is “improper” may vary. It cannot be stated that only one reason willbe compelling or determinative. The issue of permissibility of police conduct must be considered in light of the totality of the circumstances. It is important to recall at all times the context in which entrapment usually occurs An understanding of the reality of criminal activity is imperative to the development of a workable doctrine that accommodates the interests of all in society. In this respect, more leeway may be granted to police methods directed at uncovering criminal conduct that is simply not capable of being detected through traditional law enforcement techniques.

SUMMARY

In conclusion, and to summarize, the proper approach to the doctrine of entrapment is that which was articulated by Estey J. in Amato, supra, and elaborated upon in these reasons. As mentioned and explained earlier there is entrapment when,

(a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry;
(b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.

It is neither useful nor wise to state in the abstract what elements are necessary to prove an entrapment allegation. It is, however, essential that the factors relied on by a court relate to the underlying reasons for the recognition of the doctrine in the first place.

Since I am of the view that the doctrine of entrapment is not dependent upon culpability, the focus should not be on the effect of the police conduct on the accused’s state of mind. Instead, it is my opinion that as far as possible an objective assessment of the conduct of the police and their agents is required. The predisposition, or the past, present or suspected criminal activity of the accused, is relevant only as a part of the determination of whether the provision of an opportunity by the authorities to the accused to commit the offence was justifiable. Further, there must be sufficient connection between the past conduct of the accused and the provision of an opportunity, since otherwise the police suspicion will not be reasonable. While predisposition of the accused is, though not conclusive, of some relevance in assessing the initial approach by the police of a person with the offer of an opportunity to commit an offence, it is never relevant as regards whether they went beyond an offer, since that is to be assessed with regard to what the average non-predisposed person would have done.

The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct because of the risk that the police will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the police power to simply go out and test the virtue of people on a random basis. The presence of reasonable suspicion or the mere existence of a bona fide inquiry will however, never justify entrapment techniques: the police may not go beyond providing an opportunity regardless of their perception of the accused’s character and regardless of the existence of an honest inquiry. To determine whether the police have employed means which go further than providing an opportunity, it is useful to consider any or all of the following factors:

—        the type of crime being investigated and the availability of other techniques for the police detection of its commission;
—        whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;
—        the persistence and number of attempts made by the police before the accused agreed to committing the offence;
—        the type of inducement used by the police including: deceit, fraud, trickery or reward;
—        the timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity;
—        whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;
—        whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
—        the proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;
—        the existence of any threats, implied or express, made to the accused by the police or their agents;
—        whether the police conduct is directed at undermining other constitutional values.
This list is not exhaustive, but I hope it contributes to the elaboration of a structure for the application of the entrapment doctrine. Thus far I have not referred to the requirement in Amato, supra, per Estey J., that the conduct must, in all the circumstances, be shocking or outrageous. I am of the view that this is a factor which is best considered under the procedural issues to which I will now turn.

 

R. v. Barnes
Supreme Court of Canada
[1991] 1 S.C.R. 449

LAMER C.J.C. (WILSON, LA FOREST, SOPINKA, GONTHIER, CORY and STEVENSON JJ. concurring):—
This case involves a consideration of the defence of entrapment as set out by this Court in R. v. Mace, [1988] 2 S.C.R. 903, 67 C.R. (3d) l,[1989] 1 W.W.R. 577, 90 N.R. 173, 44 C.C.C. (3d) 513, 37 C.R.R. 277. In particular, this Court is asked whether the accused was subjected to random virtue-testing by an undercover police officer in the city of Vancouver. This case also raises the question of whether this Court, at the request of the Crown, has jurisdiction to modify the decision of a court of appeal which has allowed an appeal by the Crown from a judicial stay of proceedings entered at trial.

Facts

On January 12, 1989, the appellant sold one gram of hashish to an undercover police officer near the Granville Mall area of Vancouver. The parties do not dispute the facts surrounding the sale which are as follows.

The undercover officer was involved in a “buy-and-bust” operation conducted by the Vancouver Police Department. In a buy-and-bust operation, undercover police officers attempt to buy illicit drugs from individuals who appear, in the opinion of the officers, to be inclined to sell such drugs. If an officer is successful, the individual is immediately arrested for trafficking.

This particular operation was undertaken by the Department with respect to the Granville Mall area in the city of Vancouver, which covers a six-block section of Granville Street. On the day of the arrest, the undercover officer approached the accused, Philip Barnes, and his friend, as they were walking towards Granville Street. The officer testified at trial that she approached the accused and his friend because she had “a hunch, a feeling that they’d - possibly might be in possession.” She believed that he and his friend fit the description of persons who possibly had drugs in their possession, and who would be willing to sell to her: “I had a feeling. They fit my general criteria. I look for males hanging around, dressed scruffy and in jeans, wearing a jean jacket or leather jacket, runners or black boots, that tend to look at people a lot.” The officer indicated that there was nothing else that aroused her suspicions. The officer approached the accused and asked him if he had any “weed”. He said, “No”, but his friend repeated to him: “She wants some weed.” The accused again responded negatively. The officer persisted and the accused then agreed to sell a small amount of cannabis resin to the officer for $15.00. Shortly afterwards, the accused was arrested by another officer and small amounts of cannabis resin and marijuana were seized from his person.

The accused was tried in the Country Court of Vancouver before Leggatt Co. Ct. J., and was found guilty of trafficking in cannabis resin, of the included offence of possession of cannabis resin for the purpose of trafficking, and of possession of marijuana. The accused conceded that he sold illicit drugs to the officer, but argued that a judicial stay for entrapment should be directed. He claimed that he had no intention of selling drugs on the day in question, but felt sorry for the undercover officer; he agreed to sell only because he believed that his friend wanted to meet a woman and that this was a way of gaining an introduction. The trial Judge held that the police officer had engaged in “random virtue testing”, which was unacceptable according to the judgment of this Court in Mack, supra, and therefore ordered a judicial stay of the proceedings.

The British Columbia Court of Appeal allowed the Crown’s appeal and ordered a new trial. …

Analysis

Did the Police Officer Engage in Random Virtue-Testing?

To resolve this appeal, this Court must consider whether the conduct of the undercover police officer was acceptable in light of the guidelines set out in Mack. In Mack, I attempted to define the circumstances in which police conduct in the course of investigating and uncovering criminal activity ceases to be acceptable and, instead, amounts to the unacceptable entrapment of individuals. The defence of entrapment is based on the notion that limits should be imposed on the ability of the police to participate in the commission of an offence. As a general rule, it is expected in our society that the police will direct their attention towards uncovering criminal activity that occurs without their involvement.

As I summarized in Mack, at pp. 964-965, [S.C.R., pp. 49-50 C.R.], there are two principal branches of the test for entrapment. The defence is available when:

(a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry;
(b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.…

The absence of a reasonable suspicion or a bona fide inquiry is significant in assessing the police conduct because of the risk that the police will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the police power to simply to go out and test the virtue of people on a random basis.
It is apparent that the police officer involved in this case did not have a “reasonable suspicion” that the accused was already engaged in unlawful drug-related activity. The factors that drew the officer’s attention to this particular accused - his manner of dress, the length of his hair  were not sufficient to give rise to a reasonable suspicion that criminal acts were being committed. Furthermore, the subjectiveness of the officer’s decision to approach the accused, based on a “hunch” or “feeling” rather than extrinsic evidence, also indicates that the accused did not, as an individual, arouse a reasonable suspicion.

Consequently, the police conduct in this case will amount to entrapment unless the officer presented the accused with the opportunity to sell drugs in the course of a bona fide inquiry. In my opinion, the police officer involved in this case was engaged in such a bona fide investigation. First, there is no question that the officer’s conduct was motivated by the genuine purpose of investigating and repressing criminal activity. The police department had reasonable grounds for believing that drug-related crimes were occurring throughout the Granville Mall area. The accused was not, therefore, approached for questionable motives unrelated to the investigation and repression of crime.

Secondly, the police department directed its investigation at a suitable area within the city of Vancouver. As I noted in Mack, the police may present the opportunity to commit a particular crime to persons who are associated with a location where it is reasonably suspected that criminal activity is taking place. I stated, at p. 956 [C.R., pp. 42-43 C.R.]:

“Of course, in certain situations the police may not know the identity of specific individuals, but they do know certain other facts, such as a particular location or area where it is reasonably suspected that certain criminal activity is occurring. In those cases it is clearly permissible to provide opportunities to people associated with the location under suspicion, even if these people are not themselves under suspicion.”

The police department in this case focussed its investigation on an area of Vancouver, a section of Granville Street covering approximately 6 city blocks, where it was reasonably suspected that drug-related crimes were occurring. In my opinion, they would not have been able to deal with the problem effectively had they restricted the investigation to a smaller area. Although there were particular areas within the Granville Mall where drug trafficking was especially serious, it is true that trafficking occurred at locations scattered generally throughout the Mall. It is also true that traffickers did not operate in a single place. It would be unrealistic for the police to focus their investigation on one specific part of the Mall given the tendency of traffickers to modify their techniques in response to police investigations. The trial Judge admitted that the Mall was “known as an area of considerable drug activity.” Similarly, the Court of Appeal found support in the evidence given at trial by Staff Sergeant Davies of the Vancouver City Police. In discussing the police department’s activities in 1988, Staff Sergeant Davies indicated, at p. 370, that:

“(a) Of the 2,294 persons charged with drug offences, approximately 22% were from incidents in the Granville Mall area;
(b) 506 arrests were made on the mall resulting in 659 charges 289 for trafficking, 199 for possession for the purpose of trafficking;
(c) 315 arrests were made in ‘buy and bust’ operations resulting in 475 charges.”

The Court of Appeal concluded, at p. 372:

“The evidence at trial disclosed that sales of narcotics took place up and down the mall and it was for that reason that the undercover officer walked up and down the mall approaching persons and providing an opportunity to sell illicit drugs to her.”

It is, therefore, my opinion that the police department was engaged, in these circumstances, in a bona fide inquiry.

I note that in many cases, the size of the area itself may indicate that the investigation is not bona fide. This will be so particularly when there are grounds for believing that the criminal activity being investigated is concentrated in part of a larger area targeted by the police. In this case, however, for the reasons discussed above, it was reasonable for the Vancouver Police Department to focus its investigation on the Granville Mall.

The accused argues that although the undercover officer was involved in a bona fide inquiry, she nevertheless engaged in random virtue-testing since she approached the accused without a reasonable suspicion that he was likely to commit a drug-related offence. She approached the accused simply because he was walking near Granville Street.

In my respectful opinion, this argument is based on a misinterpretation of Mack. Irecognize that some of my language in Mack might be responsible for this misinterpretation. In particular, as noted above, I stated, at p. 956 [S.C.R., pp. 42-43 C.R.]:

“In those cases [where there is a particular location where it is reasonably suspected that certain crimes are taking place] it is clearly permissible to provide opportunities to people associated with the location under suspicion, even if these people are not themselves under suspicion. This latter situation, however, is only justified if the police acted in the course of a bona fide investigation and are not engaged in random virtue-testing.”

This statement should not be taken to mean that the police may not approach people on a random basis, in order to present the opportunity to commit an offence, in the course of a bona fide investigation. The basic rule articulated in Mack isthat the police may only present the opportunity to commit a particular crime to an individual who arouses a suspicion that he or she is already engaged in the particular criminal activity. An exception to this rule arises when the police undertake a bona fide investigation directed at an area where it is reasonably suspected that criminal activity is occurring. When such a location is defined with sufficient precision, the police may present any person associated with the area with the opportunity to commit the particular offence. Such randomness is permissible within the scope of a bona fide inquiry.

Random virtue-testing, conversely, only arises when a police officer presents a person with the opportunity to commit an offence without a reasonable suspicion that:
(a) the person is already engaged in the particular criminal activity, or
(b) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring.

In this case, the accused was approached by the officer when he was walking near the Granville Mall. The notion of being “associated” with a particular area for these purposes does not require more than being present in the area. As a result, the accused was associated with a location where it was reasonably believed that drug-related crimes were occurring. The officer’s conduct was therefore justified under the first branch of the test for entrapment set out in Mack.

For these reasons, it is my opinion that the officer did not engage in random virtue-testing in this case. I would, therefore, dismiss the appeal and uphold the decision of the Court of Appeal ordering a new trial.

Disposition

For the reasons given above, I would dismiss the accused’s appeal and uphold the decision of the Court of Appeal ordering a new trial.

L’HEUREUX-DUBÉ J. (dissenting in part):— I have had the benefit of the reasons of the Chief Justice, but am nevertheless compelled to reach a different conclusion concerning the jurisdiction of this Court to enter convictions regarding the three charges stayed by the trial Judge. As the Chief Justice’s resolution of the entrapment issue commends itself to me, I will only address the second issue raised by this case, the jurisdiction issue...

Entrapment

… As I stated earlier, I agree fully with the Chief Justice’s disposition of the entrapment issue in the present case. Before going to the issue of jurisdiction, however, I will briefly discuss the second arm of the entrapment inquiry since it is at the heart of the Court of Appeal’s order for a new trial.

In Mack, what constitutes “inducing” the commission of an offence, is distinguished from the permissible provision of a mere opportunity and, thus, defines what will constitute entrapment on the second arm of the test. The central question in this form of entrapment is “have the police gone further than providing an opportunity and instead employed tactics designed to induce someone into the commission of an offence?” (See p. 959 [S.C.R., pp. 44-45 C.R.]) In considering this question, Lamer J. cautions that it must be answered in light of “the average person in the position of the accused,” and sets out a non-exhaustive list of factors that will assist in formulating the answer. This list includes, among others, such factors as the persistence of the police, whether rewards, deceit; or exploitation are employed, disproportionate involvement of the police as compared to the accused, and the existence of threats, veiled or otherwise.

Prior to applying this test, it should be noted that the trial Judge, in the present case, did pursue the “preferable and safe course of making findings on all the counts charged” (P.(D.W.) at p. 17 [S.C.R., p. 326 C.R.]). That there was no realistic debate about the guilt of the accused is apparent from the record, and from the fact that the accused raised no “defence” other than one of entrapment. As regards entrapment, the trial Judge did not need to determine whether entrapment on the second branch of the test, as set out in Mack, was satisfied here, since he found entrapment based on the first branch of the test. He did, however, clearly set out that portion of the transaction relevant to this question in the following extract of his reasons:

“The female undercover officer was part of a buy-and-bust operation conducted by the Vancouver Police Department. She saw the Accused at the northwest corner of Georgia and Granville, waiting for the light to change ... The undercover officer approached the Defendant and asked, ‘Got any weed?’ He answered no. His partner then said to him, ‘She wants some weed.’ The Defendant then looked over the undercover officer and again said no. She then said, ‘Come on, what have you got?’ He said ‘Hash. It’s gold.’ She said, ‘How much?’ He said, ‘15.’ ‘Okay.’ The three went into a doorway. He pulled out a small package and took a small portion from it. She gave him a marked $20 bill, got $4 in change, and left. That is pretty well the extent of the transaction.” [Emphasis added.]

I fully agree with the Crown’s description of this transaction as being of the “briefest duration” and as “providing the barest of opportunities to an individual to engage in criminal activity.” It is obvious, from a discussion of the relevant legal principles applicable to entrapment going to the second branch of the test, and the findings of fact made by the trial Judge, that there is no “live” issue regarding the second branch of the entrapment test. While admittedly certain issues, such as issues of guilt or innocence, are fraught with difficult determinations going to the state of mind of an accused and, thus, are best left to the trial Judge, this is clearly not the case here. Once this Court rejected the arguments of the accused going to the first branch of the entrapment inquiry, it is painfully clear that there was no point to the entrapment arguments of the accused. In fact, the primary, if not the sole, thrust of the accused’s defence, evidenced through the proceedings at trial, was that the police had engaged in random virtue-testing, not that the accused had been induced to commit a crime.

Everything I have said above makes clear why the defence proceeded in the manner it did. It appears, from the record and from the manner in which the accused conducted his defence that, should the accused’s appeal be dismissed, there was no expectation of success on any further ground or argument going to entrapment. In this light, it is as unreal to entertain arguments of prejudice to the accused in entering convictions as it is to order a new trial in such circumstances. Considering the entire set of circumstances in this case, the lack of adjudication by the trial Judge regarding the second branch of the entrapment test can neither prevent the entering of a conviction, nor justify the order for a new trial on that issue. Accordingly, I am respectfully of the view that the Court of Appeal erred in order a new trial on this second branch of the test of entrapment in the circumstances of this case.

My conclusions in this regard are supported by this Court’s unanimous decision in R. v. Cassidy, [1989] 2 S.C.R. 345, 71 C.R. (3d) 350, 61 D.L.R. (4th) 480, 100 N.R. 321, 36 O.A.C. 1, 50 C.C.C. (3d) 193, 42 C.R.R. 193, wherein this Court considered the nature of the Court of Appeal’s ability, under s. 613(4)(b)(ii) of the Criminal Code, R.S.C. 1970, c. C-34, (now s. 686(4)(b)(ii)), to enter a conviction rather than order a new trial. Lamer J., for the Court, set out, within the context of the argument advanced by the Crown, the circumstances within which a Court of Appeal can properly exercise such a power, at pp. 354-355 [S.C.R., p. 357 C.R.]:

“The Crown replies that the Court of Appeal may allow a Crown appeal against an acquittal entered by a trial judge and substitute a verdict of guilty where the Crown establishes that an error of law was committed at trial, satisfies the Court of Appeal that, had there been a proper application of the law, the verdict would not have been the same, and further demonstrates that the accused should have been found guilty but for the error of law. In this respect, the principle that has been established at common law is that all the findings necessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue.” [Emphasis in original.]

It is clear that these prerequisites have been satisfied in the instant case. Given that conclusion, the question remains whether this Court, in overturning the judgment of the Court of Appeal on this issue, can direct the entry of convictions, absent an appeal by the Crown from the order of the Court of Appeal.

Disposition

I would dismiss the appellant’s appeal, but would quash the order of the Court of Appeal for a new trial, and remit the matter back to the trial Judge for entry of convictions on the three counts and imposition of sentence.

McLACHLIN J. (dissenting):— This appeal raises the question of when undercover police should be allowed to interfere with members of the public who are not under suspicion. This Court laid out the basic principles governing undercover intrusion into private activity  R. v. Mack, [1988] 2 S.C.R. 903, 67 C.R. (3d) 1, 44 C.C.C. (3d) 513. The present case raises issues as to the ambit of the Mack test and its application. With the greatest respect, l cannot agree with the application of the Mack test adopted in this case by the Court of Appeal and endorsed by my colleague, Lamer C.J.C. To accept this application would, in my considered opinion, represent endorsing a measure of state intrusion into the private affairs of citizens greater than any heretofore sanctioned by this Court under the Canadian Charter of Rights and Freedoms, and out of step with the philosophy and principles which guided the decisions of this Court in R. v. Dyment, [1988] 2 S.C.R. 417, 66 C.R. (3d) 348, 45 C.C.C. (3d) 244; R. v. Sanelli, (sub nom. R. v. Duarte) [1990] 1 S.C.R. 30, (sub nom. R. v. Sanelli ) 74 C.R. (3d) 281, (sub nom. R. v. Duarte) 53 C.C.C. (3d) 1; R. v. Kokesch, [1990] 3 S.C.R. 3, 1 C.R. (4th) 62, 61 C.C.C. (3d) 207; and R. v. Wong, [1990] 3 S.C.R. 36, 1 C.R. (4th) 1, 60 C.C.C. (3d) 460.

I accept the test for unlawful entrapment provided in Mack, supra . Entrapment occurs where [pp. 964 965 S.C.R., p. 49 C.R.]:

“(a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry;
(b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.”

In this case we are concerned only with the latter aspect of the first branch of the test. The undercover policewoman who approached the accused had no reasonable suspicion that he was engaged in criminal activity. He was simply a not-too-well-dressed young person crossing a street. This leaves only one basis on which the police can justify their activity—that they were engaged in a bona fide inquiry.

Lamer C.J.C. finds that there was a bona fide inquiry in this case on the basis of two factors: (1) the officer’s conduct was motivated by the genuine purpose of investigating and repressing criminal activity; and (2) the police department directed its investigation at a location where it is reasonably suspected that criminal activity is taking place. He goes on to say that, notwithstanding an apparently contrary statement in Mack, the presence of a bona fide inquiry eliminates any possibility of there being random virtue-testing. I, on the other hand, take the view that determining whether the police were acting pursuant to a bona fide inquiry requires consideration of more than the two factors referred to by Lamer C.J.C. More particularly, it involves consideration of whether the state’s interest in repressing criminal activity in the particular case, outweighs the interest which individuals have in being able to go about their daily lives without courting the risk that they will be subjected to the clandestine investigatory techniques of agents of the state. I base this view on the considerations underlying the concept of unlawful entrapment, as well as the language used in Mack.

The reasoning in Mack recognizes that the law of entrapment is based on a balance between conflicting interests. On the one hand lie the individual’s interests—the interest in being left alone, free from state intrusion, and the interest in not being induced by the state to commit an offence (Mack, at p.941 [S.C.R.]). On the other lies the state’s competing interest in protecting society from crime. Lamer J. (as he then was) puts it thus in Mack, at pp.941-942 [S.C.R., p.31 C.R.]:

“the competing social interest is in the repression of criminal activity. Further, our dependence on the police to actively protect us from the immense social and personal cost of crime must be acknowledged. There will be differing views as to the appropriate balance between the concepts of fairness and justice and the need for protection from crime but it is my opinion that it is universally recognized that some balance is absolutely essential to our conception of civilized society. In deciding where the balance lies in any given case it is necessary to recall the key elements of our model of fairness and justice, as this is the only manner in which we can judge the legitimacy of a particular law enforcement technique.” (emphasis added)

Mack, therefore, stands for the proposition that determination of entrapment must involve a balancing between the individual interest in being left alone, and the state’s interests in the repression of crime. Only where considerations such as fairness, justice, and the need for protection from crime tip the balance in favour of the state, will police conduct which offends the individual interests at stake be acceptable.

The significance of the individual interest at stake here must not be underestimated, nor should the adverse effect that police investigatory techniques can have on this interest be overlooked. This Court has frequently emphasized that limits must be placed on the state’s ability to intrude into the daily lives of its citizens. As La Forest J. stated in R. v. Dyment, supra, in a passage adopted by Sopinka J. for the majority in R. v. Kokesch, supra, “The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state” (at pp. 427-28 [S.C.R.]). Furthermore, in R. v. Wong, supra, La Forest J., for the majority, acknowledged that our society is one which “sets a premium on being left alone” (at p. 53 [S.C.R.]).

To paraphrase La Forest J. in Wong, the notion is that individuals should be free to go about their daily business—to go shopping, to visit the theatre, to travel to and from work, to name but three examples—without courting the risk that they will be subjected to the clandestine investigatory techniques of agents of the state. A further risk inherent in overbroad undercover operations is that of discriminatory police work, where people are interfered with not because of reasonable suspicion, but because of the colour of their skin or, as in this case, the quality of their clothing and their age.

It follows from the fact that the concept of unlawful entrapment represents a balancing of conflicting interests, that the test for entrapment must likewise permit the measuring of relative harms. A test which does not permit weighing of the infringement on individual freedom and privacy in determining whether entrapment has occurred is to that extent deficient. As Lamer J. put it in the passage cited in Mack, what must be determined “in any given case” is where the proper balance lies.

While comments of Lamer J. in Mack on what constitutes a bona fide inquiry leave room for consideration of the individual interest in being left alone and not being induced into crime, the application of Mack proposed by him in this case permits little or no recognition of the interest of the individual in being left alone. All that is required is that the police act from a proper motive and that there be a suspicion of criminal activity within a general geographic area targeted by the police. That established, there is no room for consideration of factors vital to the balancing process; for example, the size of the area, the number of innocent people going about legitimate activities who might be interfered with by the operation, and the seriousness of the crime in question.

In advocating a more refined test for bona fide inquiry than does Lamer C.J.C., I am motivated by concern for the implications of the test he proposes. That test would permit the police to extend their Granville Mall operation to all of Vancouver if statistics could be found to suggest that drug offences severe occurring throughout Vancouver generally. The example is extreme. Yet it indicates the deficiency I see in the test proposed by Lamer C.J.C. In my view, a more sensitive test than that proposed by Lamer C.J.C.—one which permits appreciation of all relevant factors—is required.

I conclude that determination that the police were operating in the course of a bona fide inquiry within the meaning of Mack requires the court to consider not only the motive of the police and whether there is crime in the general area, but also other factors relevant to the balancing process—such as the likelihood of crime at the particular location targeted, the seriousness of the crime in question, the number of legitimate activities and persons who might be affected, and the availability of other less intrusive investigative techniques. In the final analysis, the question is whether the interception at the particular location where it took place was reasonable, having regard to the conflicting interests of private citizens in being left alone from state interference, and of the state in suppressing crime. If the answer to this question is yes, then the inquiry is bona fide.

In proposing a test that involves the balancing of conflicting interests, I am not insensitive to the criticism sometimes made that balancing formulas may lack certainty and predictability and accord too much discretion to reviewing judges. Notwithstanding such criticisms, a balancing approach remains the only rational way to address problems such as that presented in this case. Balancing formulas provide a way of channelling diverse information into an analytic framework, a framework which, while perhaps less than precise, is far superior to voting by “gut reaction”. A balancing process, where conflicting interests are articulated and weighed against each other, forces us to squarely face the real policy issues involved in the case, to make explicit what otherwise, rightly or wrongly, may be assumed. Our constitutional law is embedded in the notion of defining and balancing strongly felt interests in society. The rules which elaborate that law must address the same concerns.

In point of fact, the test which I propose offers sufficient guidance to the police, in my view. It may reasonably be predicted, for example, that where there is no evidence of the likelihood of offences being committed at the place where the undercover operative is stationed, the interception is unlikely to be bona fide in the absence of a countervailing state interest of compelling proportions.

Having set out the considerations which should be addressed in determining whether an inquiry is bona fide, I thorn to the facts of this case. In my view, the factors to which I have referred negate Lamer C.J.C.’s conclusion that the entire Granville Mall represents a suitable area within the city of Vancouver for the carrying out of a bona fide police inquiry. Granville Mall, located in downtown Vancouver, occupies a six-block stretch of Granville Street, a major north-south thoroughfare running through the entire city. The diversity of the Granville Mall area—which features theatres and restaurants, major department stores, large office towers, and within the radius of one block, the Vancouver Art Gallery, convention facilities and the Law Courts—means that on a daily basis literally thousands of individuals will frequent the mall and thus fall subject to the clandestine investigatory techniques of the police on the policy proposed in this case.

Lamer C.J.C. bases his conclusion that targeting the entirety of Granville Mall as a site for undercover operations constituted a bona fide police inquiry, on the absence of improper motive, and the fact that it was reasonably suspected that drug-related crimes were occurring on the mall. He refers to the trial Judge’s observation that Granville Mall is “known as an area of considerable drug activity” (p.?). With the greatest respect, I cannot agree with Lamer C.J.C.’s conclusion that “it would be unrealistic for the police to focus their investigation on one specific part of the Mall” (p. 10). There is no evidence whatsoever that trafficking took place at the location of the undercover interception. Nor is there any evidence that traffickers systematically rotated locations to avoid detection. Indeed, the trial Judge, in ordering a stay of proceedings, noted the legitimate character of much of the mall and held that the accused divas not at the immediate centre of drug trafficking.” What evidence there is established that the Granville Mall Skytrain station is known to the police as the “hub” of drug activity on the mall. That information suggests that it would be perfectly realistic for the police to focus their investigation on one specific part of the mall—namely, the very hub of drug activity, the Skytrain station.

As indicated above, I cannot agree that the fact that crime may be said to occur generally within a given area suffices to establish a bona fide inquiry, given proper police motives. Other factors must be considered. The first is the likelihood of crime in the particular area targetted. There was no evidence that trafficking was likely to occur in the intersection where the accused was intercepted—the intersection between a major hotel, an office tower, and two department stores. On the contrary, as the finding of the trial Judge reflects, drug trafficking was centered elsewhere on the mall. The fact that trafficking occurred at different locations in the six-block area of the mall does not establish that trafficking was likely to occur at the intersection where the accused was intercepted.

What evidence there is of drug activity on Granville Mall came from Staff Sergeant Kenneth Michael Davies, who, significantly, was called as “an expert in the areas of police enforcements [sic] practice and techniques regarding drug enforcement in the Granville Mall area and the downtown Vancouver area and, in particular, the operation of undercover operations.” Staff Sergeant Davies noted that the hub of drug activity on Granville Mall had migrated northward from the McDonald’s restaurant to the Skytrain station. He also stated that recently a greater proportion of the drug trafficking has been occurring indoors—in bars and restaurants along the mall. He offered no evidence whatsoever that the particular intersection in question here—Granville and Georgia—had ever been a known site of drug activity. Moreover, in cross-examination, he appeared to expressly disapprove of the conduct engaged in by the undercover policewoman:

“Q. [The suspects] are noticed walking across the street in a crosswalk; that’s it. They’re not standing—not seen standing where a bunch of people were standing. They haven’t come from a place where there is any suspicion of drug trafficking. They’re just walking across the street?
A. If that’s all there was, I personally wouldn’t direct my operator to approach these people, given the very limited information you're giving me.”

The statistics produced by Staff Sergeant Davies all relate to the entirety of the mall, with no attempt to discriminate between different locations where, or times when, the offences in question were committed. To rely on these numbers in support of the view that the police were justified in extending their operation to the entire six-block area of the mall is fraught with peril. Statistics are only as good as the questions upon which they are based. We have absolutely no idea what questions were asked in order to produce the numbers relied on by the Crown. It is entirely possible that the vast majority of the drug offences which occurred on Granville Mall took place close to the Skytrain station on Granville Street, the acknowledged hub of drug activity on Granville Mall. It is equally possible that none of the offences occurred at the intersection where the accused was intercepted. Again, it is possible that the vast majority of the drug offences which occurred on Granville Mall occurred on certain days or at specific times of day—weekends or late evenings, for example—and not at 6:00 p.m. on a weekday, which is when the transaction in question here occurred. I conclude that the statistics relied on in this case fall far short of justifying granting to the police unfettered licence to carry out their operation anywhere within a six-block stretch of downtown Vancouver without restriction as to the area and the times of day to be covered. In short, it is not established that trafficking was likely at the place and time where the accused was intercepted.

A second factor relevant to determining the appropriateness of the investigation is the impact that the investigation may have on law-abiding citizens pursuing legitimate activities. Here, the possibility of this undercover operation’s interfering with legitimate activities was high. As already noted, the intersection in question is bounded by department stores, an office tower, and a major hotel. Theatres, the Art Gallery, and the Law Courts are nearby. This factor, while not in itself conclusive, weighs against the right of undercover police to intercede at will.

On the other side of the balance must be weighed the seriousness of the criminal activity which the police have targeted. It is apparent that the state interest in repressing crime may receive greater weight when the police target serious criminal offences.. The offence here in question, while not to be condoned, cannot be considered as serious. In Kokesch, supra, Sopinka J. for the majority took judicial notice of the fact that narcotics offences involving marijuana are generally regarded as less serious than those involving “hard” drugs such as cocaine and heroin. The same might be said of offences involving hashish, the substance involved in this case. The amount, moreover, was small. In short, this was not the sort of serious drug offence which would more readily tip the balance in favour of the state.

I turn finally to the availability of alternative investigatory techniques for detecting the sort of criminal activity at issue. There were alternative ways of apprehending drug pedlars such as the appellant. Simple observation by undercover operatives (as opposed to interception) is one. I am left with some doubt as to whether the apprehension of drug pedlars on Granville Mall requires giving the police carte-blanche to intercept large numbers of law-abiding citizens as these citizens visit the theatre or leave major office towers or department stores.

I arrive, then, at the conclusion that in the case at Bar the individual interest in being left alone and free to pursue one’s daily business without being confronted by undercover police operatives vastly outweighs the state interest in the repression of crime. It follows that the police officer in this case cannot be said to have been acting pursuant to a bona fide inquiry. Any other conclusion would be, in my respectful opinion, unfitting in a society which heralds the constitutional protection of individual liberties and places a premium on “being left alone”.

I would allow the appeal and restore the stay of proceedings.

Appeal dismissed.

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MPC § 2.13

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N.Y. Penal Law § 40.05. Entrapment

In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Inducement or encouragement to commit an offense means active inducement or encouragement. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

* * *

People v. DeGina
Court of Appeals of New York
72 N.Y.2d 768 (1988)

Kaye, J.
Defendant’s position both at trial and on appeal has been that he did not raise an entrapment defense and that it was error to charge the jury on that defense. . . . At a precharge conference, the prosecutor requested an entrapment instruction . . . . Over defense objection, the court . . . instructed the jury on the affirmative defense of entrapment, noting that the burden of proving all material elements of the charged crimes beyond a reasonable doubt was on the People, but that defendant then bore the burden of proving the affirmative defense of entrapment by a preponderance of the evidence. . . .

Defendant was convicted of several counts of criminal sale of a controlled substance . . . .

The entrapment defense was introduced in New York—one of the last States to recognize it—in 1967, as part of the current Penal Law. . . . As it is designated an affirmative defense, the burden to establish these elements by a preponderance of the evidence is placed on the defendant—unlike other defenses, as to which the defendant has no burden and which the People must disprove beyond a reasonable doubt (Penal Law § 25.00 [1], [2]).

A defendant thus assumes a substantial burden in asserting entrapment. Indeed, New York imposes a heavier burden than either the Federal courts, where entrapment is an ordinary defense—not an affirmative defense—or the Model Penal Code and those States following its formulation, where entrapment is a so-called “objective” affirmative defense. In contrast to Penal Law § 40.05, which requires that defendant prove that he or she had no disposition to commit the acts charged, under the Model Penal Code approach the character of the particular defendant is not a relevant subject of inquiry, the pertinent question being the nature of the police conduct and whether it was such as to cause an ordinary person to commit the crime (ALI Model Penal Code § 2.10, comment, at 20 [Tent. Draft No. 9]).

It should be borne in mind, however, that affirmative defenses were introduced into the law not “as a hardening of attitudes in law enforcement [but] rather as a civilized and sophisticated amelioration.” (People v Patterson, 39 NY2d 288, 306 [Breitel, Ch. J., concurring].) As such, it is necessary to guard against abuse of affirmative defenses “to unhinge the procedural presumption of innocence” or “to undermine the privilege against self incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf.” (Id., at 305.)

Applying these legal standards to the factual record in this case, a fair reading of the record establishes that the entrapment defense was not raised. Defendant’s trial theory had in common with a defense of entrapment the premise of overreaching and misconduct by a police officer. But defendant did not contend that he was “induced or encouraged” to engage “in the proscribed conduct.” (Penal Law § 40.05.) His defense was to deny engaging in the “proscribed conduct” at all; he sold the officer only talcum powder. Defendant sought to have the jury disbelieve [the officer] as to any sales of controlled substances by him, and to believe instead that the officer sought retaliation by falsely involving him in criminal charges.

Having concluded . . . that defendant did not raise the entrapment defense, we further agree . . . that it was error to accede to the People’s request for such an instruction.

Imposing the burden of proving entrapment on defendant, who had not raised it, constituted an abuse of the affirmative defense in derogation of defendant’s right to have the State bear the entire burden of proof. Moreover, a trial court is not authorized to instruct the jury on legal principles that are not applicable to the particular case (CPL 300.10 [2]). As we have recognized, jury instructions have singular significance in criminal trials, where a charge error may well result in the deprivation of a fair trial and require reversal. Whether or not reversible error in every case, the erroneous instruction prejudiced defendant in at least two respects.

First, a defendant unquestionably has the right to chart his own defense, and in this case the entrapment charge undermined the defense chosen by defendant. [B]y informing the jury that defendant was claiming he had sold the drugs as a result of the officer’s inducement, the trial court placed defendant in the midst of contradictory defenses on the critical question of whether he had or had not sold any drugs. Defendant was arguing that he had not sold any drugs to [the officer]; the entrapment defense proceeded on the premise that he had sold drugs to [the officer]. While a defendant is not forbidden to do this (see People v Butts, 72 NY2d 746), it is plainly a hazardous tactic, for it not only risks confusing the jury as to the nature of the defense but also may well taint a defendant’s credibility in the eyes of the jury. Certainly it is not a strategy that should be thrust on a defendant who has not chosen it.

Second, the court imposed on defendant an affirmative burden of proof he had not undertaken by his defense theory. The jury was charged that defendant had the burden of establishing by a preponderance of the evidence that [the officer] actively enticed him into committing the crime, and that without such enticement defendant would not have been disposed to commit the crime. Understandably, in light of his quite different defense, defendant did not attempt to present evidence, through his own witnesses or through cross-examination, to demonstrate that [the officer] actively encouraged or induced him to sell drugs after the talcum powder incident, as would have been required to prevail upon a claim of entrapment. Nor did defendant make any affirmative effort to meet his burden of showing a lack of disposition to commit the charged crimes, as it was his claim that they had never happened at all. Thus, the court’s charge imposed upon defendant an affirmative burden that the jury was bound to conclude he had failed to sustain.

* * *

Jacqueline E. Ross, “Tradeoffs in Undercover Investigations: A Comparative Perspective,” 69 U. Chi. L. Rev. 1501 (2002).

In the United States, but almost nowhere else, entrapment is a defense wholly relieving the defendant from liability. Most Western European legal systems instead treat entrapment as a mode of complicity that fails to excuse the target but implicates the investigator in the crime. Defining entrapment subjectively rather than objectively, the American test largely focuses on the offender’s predisposition. Even powerful inducements will fall short of entrapment if the offender is predisposed to commit the crime. By contrast, the offender’s predispositions are less important to European legal systems that focus on the undercover agent’s complicity. Suppose an agent offered a suspect too tempting an opportunity to commit a crime—securing, for instance, essential resources such as hard-to-get ingredients for a bomb or criminal contacts that the offender would not have been likely to locate on his own. If so, the agent may be complicit in the attempted crime, despite the target’s subjective willingness to commit it. Even if the investigator has not entrapped the target, he may himself have engaged in illegal conduct by handling contraband, transferring funds, or using false documents. European legal systems treat such conduct as criminal unless a law expressly exempts the investigator from liability for specified acts. . . .

Agents incur a risk of criminal liability not only by participating in crimes undercover, but also by postponing the arrest of targets until the conclusion of the covert investigation. . . . If a country lacks prosecutorial discretion and requires prosecution of all apparent offenses committed by police officials and civilians alike, undercover operatives may face a very real danger of punishment unless they confine their activities within legislatively defined bounds.

 

 




[1] “[S]ection 34(1) does not import a purely objective test. The doctrine of mistake of fact is applicable to section 34(1) as well as section 34(2). An accused's belief that he was in imminent danger from an attack may be reasonable, although he may be mistaken in his belief. Moreover, in deciding whether the force used by the accused was more than was necessary in self-defence under both section 34(1) and 34(2) the jury must bear in mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety, the exact measure of necessary defensive action.” R. v. Baxter, [1975] O.J. No. 1053 —Ed.