Full Text:Volume 1D

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See also: Full Text:Volume 1

Due Diligence

This page was last substantively updated or reviewed March 2019. (Rev. # 79547)

General Principles

See also: Regulatory and Provincial Offences

All offences of strict liability do not require the Crown to prove any mens rea, there only needs to be an actus reus proven. For any of these offences, it is open to the accused either to raise a defence of due diligence by establishing that reasonable care was taken or by raising a defence of mistake of fact.[1]

Once the Crown proves the elements of a regulatory or provincial "strict liability" offence or otherwise establishes a duty upon the accused, the onus is on the accused to establish due diligence. This must be proven on a balance of probabilities.[2] The conduct of the accused is measured against that of "a reasonable person in similar circumstances".[3]

This defence is, by definition, only applicable to "strict liability" offences and not "absolute liability" offences.[4]

  1. R v Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299, per Dickson J
  2. e.g. R v Ariganello, 2013 ONCJ 13 (CanLII), per Baldwin J
    R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 SCR 44, per Cory J, at para 32 ("...a person accused of a strict liability offence may avoid conviction by proving, on the balance of probabilities, either that he had an honest but mistaken belief in facts which, if true, would render the act innocent, or that he exercised all reasonable care to avoid committing the offence.")
  3. Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc, 2006 SCC 12 (CanLII), [2006] 1 SCR 420, per LeBel J, at para 15 ( “the accused in fact has both the opportunity to prove due diligence and the burden of doing so. An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similar circumstances.”)
  4. Pontes, supra, at para 32 (".. if neither of these two facets of the defence of due diligence is available to an accused, the offence cannot be said to be one of strict liability. By definition, a strict liability offence requires that the defence of due diligence be available. Put another way, if the offence does not permit a due diligence defence, then it cannot be a strict liability offence.")
    see also Regulatory and Provincial Offences

Reasonable Care

Due diligence requires the accused to "take all reasonable steps" or "all reasonable care" to avoid the harm that resulted. [1]

Due diligence defence is also available where the accused "had an honest but mistaken belief in facts which, if true, would render the act innocent".[2]

It is not necessary that the accused take all conceivable steps, however.[3]

In assessing due diligence, WD test for credibility does not apply.[4]

This is considered from the perspective of a reasonable person in similar circumstances.[5]

This does not mean that the accused would be required to perform acts that would put the accused in unreasonable danger.

  1. R v British Columbia Hydro and Power Authority, 1997 CanLII 4373 (BC SC), [1997] BCJ No 1744 (S.C.), per Lamperson J, at para 55 ("In other words, an accused must take all reasonable steps to avoid harm. However, that does not mean an accused must take all conceivable steps.")
    R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 SCR 44, per Cory J, at para 32
  2. Pontes, ibid., at para 32
  3. BC Hydro and Power Authority, supra, at para 55
  4. R v Carpentier, 2005 MBCA 134 (CanLII), 203 CCC (3d) 251, per Steel JA, at para 27
    R v Ariganello, 2013 ONCJ 13 (CanLII), per Baldwin J, at para 18
    R v Defaria, 2008 ONCJ 687 (CanLII), [2008] OJ No 5427, per Duncan J, at para 16 ("...the matter in issue was due diligence... . In my view, it would be illogical and inappropriate to give the defendant the benefit of reasonable doubt on credibility when he bears the burden of proof on a balance of probabilities. I am firmly of the view that W.D. has no application to regulatory offences where the defence of due diligence is to be assessed by the trial court.")
  5. La Souveraine, Compagnie d'assurance générale v Autorité des marchés financiers, 2013 SCC 63 (CanLII), [2013] 3 SCR 756, per Wagner J, a accused can "avoid liability by showing that he or she took all reasonable steps to avoid the particular event .... The defence of due diligence is based on an objective standard: it requires consideration of what a reasonable person would have done in similar circumstances.")

Industry Standards and Practices

Compliance with industry standard practice is a factor that weighs in favour of due diligence but it not determinative.[1]

Industry standards and practice cannot be of any value to due diligence if it is established that the standard is insufficient. It then cannot be used as a shield against responsibility.[2]

  1. see R v Emil K. Fishing Corp.; R v Kukuljan, 2008 BCCA 490 (CanLII), [2008] BCJ No 2326; 304 DLR (4th) 725, per Groberman JA leave refused
    R v Bui, [2005] OJ No 1456(C.J.)(*no CanLII links)
  2. R v London Excavators & Trucking Ltd., 1998 CanLII 3479 (ON CA), (1997) 26 C.C.E.L.(2d) 132 (Ont. P.C.), per Catzman JA
    R v Pilen Construction of Canada Ltd. [1999] OJ No 5650, affd [2001] OJ No 2980 (SCJ)(*no CanLII links)
    Libman, Regulatory Offences in Canada, at page 7-27 (“…a defendant cannot hide behind commonly accepted standards of care if, in the circumstances, due diligence warrants a higher level of care.”)

See Also

Defences

This page was last substantively updated or reviewed January 2019. (Rev. # 79547)

General Principles

An accused person can escape criminal liability for an offence that they could otherwise be convicted for by sufficiently proving the existence of one or more established defences.

Defences are often categorized as follows:

  • Justification: a justifiable act is one that makes out the offence but is justified by the external circumstances in which the act was committed. (e.g. self-defence)
  • Excuse: a criminal act is excused where the accused would have committed an undesirable criminal offence, the punishment for the offence would be morally inappropriate due to the extenuating circumstances. (eg. offences due to mental infirmities, duress). Defence such as necessity and duress are excuses since they are founded in their moral involuntariness.[1]
  • Affirmative Defence: a defence that, if proven, will eliminate liability despite all the elements of the offence having been made out
  • Negating Defence: a defence that negates one or more of the essential elements of the prosecution's case.

An affirmative defence is generally considered a type of justification defence.[2]

Appellate Review

Whether the judge correctly put a defence to a jury is a question of law and reviewable on a standard of correctness.[3]

  1. R v Ryan, 2013 SCC 3 (CanLII), [2013] 1 SCR 14, per LeBel and Cromwell JJ, at para 23
  2. R v Keegstra, 1994 ABCA 293 (CanLII), 92 CCC (3d) 505, per Harradence JA, at para 18 appealed to [1996] 1 SCR 458
  3. R v Tran, 2010 SCC 58 (CanLII), [2010] 3 SCR 350, per Charron J at 40

Common Law

Section 8(3) of the Criminal Code addresses the common law authority to define available defences: {{quotation2| 8
[omitted (1) and (2)]

Common law principles continued

(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.

[[List of Criminal Code Amendments|R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138. ]]

Section 8(3) does not restrict the power of the court to "enlarge" the common law by recognizing new defences.[1]

  1. Kirzner v R, 1977 CanLII 38 (SCC), [1978] 2 SCR 487(complete citation pending)("I do not think that s. 7(3) should be regarded as having frozen the power of the Courts to enlarge the content of the common law by way of recognizing new defences, as they may think proper according to circumstances that they consider may call for further control of prosecutorial behaviour or of judicial proceedings.")
    R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714(complete citation pending) ("[s. 8(3)] ...authorizes the courts to look to preexisting common law rules and principles to give meaning to, and explain the outlines and boundaries of an existing defence or justification, indicating where they will not be recognized as legally effective -- provided of course that there is no clear language in the Code which indicates that the Code has displaced the common law.")

Excuse

Excuses and justifications do not "negative the mens rea rather they operate by justifying or excusing what would otherwise be criminal conduct".[1] It is a "concessions of human frailty" when face with an untenable choice.[2] Such conduct is not always morally blameless, however.[3]

Provisions of the Code can specify an offence as being made out "without reasonable excuse".[4] This part of the Codes lies "outside of the elements of the offence".[5]

  1. R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973 (SCC), per Lamer CJ, at para 47
    R v Ryan, 2013 SCC 3 (CanLII), [2013] 1 SCR 14, per LeBel and Cromwell JJ, at para 23 - An excuse does not negate the wrongfulness of the act.
  2. Ryan, ibid., at para 23 citing R v Ruzic, 2001 SCC 24 (CanLII), [2001] 1 SCR 687, per Lebel J
  3. Ryan, ibid., at para 23
  4. e.g. Refusal (Offence)
  5. R v Greenshields, 2014 ONCJ 35 (CanLII), per Duncan J, at para 16
    R v Taraschuk, 1975 CanLII 37 (SCC), [1977] 1 SCR 385, per Laskin CJ
    see also Intention

Burden to Prove Excuse

See also: Burden of Proof

Under s. 794, the Code states that the burden is on the defendant to prove an exception or excuse:

No need to negative exception, etc.

794 (1) No exception, exemption, proviso, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information.

(2) [Repealed, 2018, c. 29, s. 68]

R.S., 1985, c. C-46, s. 794; 2018, c. 29, s. 68.
R.S., c. C-34, s. 730.

CCC


Note up: 794(1)

The shifted burden found in s. 794(2)--as it existed before December 13, 2018--has been interpreted as applying only to the "narrow circumstances, usually regulatory offences, where a status in law has been conferred upon the accused who would otherwise be culpable".[1] This section has no application to offences in s. 335(1.1)[2] It has been applied in charges of refusal to give a breath sample under s. 254(5).[3] As well as s. 145(3) breaches of conditions.[4]

The section has been found to apply in regulatory provincial offences.[5]

  1. R v PH, 2000 CanLII 5063 (ON CA), 143 CCC (3d) 223, per Finlayson JA, at para 14
  2. PH, ibid., at para 14
  3. R v Goleski, 2015 SCC 6 (CanLII), 320 CCC (3d) 433, per curiam
  4. R v AMY, 2017 NSSC 99 (CanLII), per Rosinski J
    cf. R v Truong, 2008 BCSC 1151 (CanLII), 235 CCC (3d) 547, per Smart J, at para 24
  5. e.g. R v DMH, 1991 CanLII 4553 (NS CA), (1991) 109 NSR (2d) 322 (CA), per Hart JA
    R v TG, 1998 CanLII 11 (NS CA), NSR (2d) 265 (CA), per Chipman JA, at paras 15 to 19

Raising a Defence

Rejected or Prohibited Defences

Ignorance of the Law

By s. 19, the ignorance of the law is no defence. However, there are limited exceptions where the underlying belief is due to officially induced error or mistake of fact.

Ignorance of the law

19 Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
R.S., c. C-34, s. 19.

CCC


Note up: 19

An accused commits a "mistake in law" where he "erroneously believes that his voluntary action does not contravene a legal order or who is mistaken about the application of a legal order".[1]

Suicide Pact

There is no defence in the common law that can reduce murder to manslaughter where the unlawful death was pursuant to a suicide pact.[2]The existence of a suicide pact would only be relevant towards a defence "not criminally responsible due to mental disorder defence".[3]

  1. R v Allaby, 2017 SKCA 25 (CanLII), 353 CCC (3d) 476, per Ottenbreit JA (3:0) , at para 42
  2. R v Dobson, 2018 ONCA 589 (CanLII), 48 CR (7th) 410, per Doherty JA
  3. Dobson, ibid., at para 42

Types of Defences


Case Digests

See Also

Intoxication

This page was last substantively updated or reviewed January 2021. (Rev. # 79547)

General Principles

Generally, intoxication does not excuse a criminal act where the accused has the requisite intent. As it were a "drunken intent is nonetheless an intent."[1]

The law recognizes three degrees of intoxication:[2]

  1. Mild Intoxication: alcohol-induced relaxation of inhibitions and acceptable behaviour. This does not affect the mens rea of an offence and requires no special instructions.
  2. Advanced Intoxication: intoxication to the point of the accused lacking any specific intent to an offence. There is an impairment of the accused's foresight of the consequences of his acts, raising a reasonable doubt on the requisite mens rea. This will only apply to specific intent offences. This level of intoxication will vary depending on the necessary specific intent forming the mens rea of the offence.
  3. Extreme Intoxication: intoxication to the point of automatism-like state. This degree of intoxication negates the voluntariness of the accused's actions and would be a complete defence to any criminal act. It is a rare defence that only applies to non-violent offences (as per s. 33.1)
  1. R v Canute, 1993 CanLII 403 (BC CA), 80 CCC (3d) 403, per Wood JA at 49
  2. R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, per Bastarache J, at para 41

Jury Instructions

Jury Threshold

Before any defence relating to intoxication can be put to the jury there must be evidence supporting a "reasonable inference" that the accused did not foresee the consequences of their actions due to their level of intoxication. [1] The jury does not need to find that the accused as a fact lacked capacity, only that they are left in doubt as to capacity.[2]

Jury Instruction

In jury trials where this defence is used, the judge must give instruction that "actual" intent to commit the offence was present.[3]

A judge should instruct a jury that there is a common sense inference (not presumption) that a person intends the consequences of their actions. But that "the reasonable common sense inference may be drawn only after an assessment of all of the evidence, including the evidence of intoxication". And further that "the inference cannot be applied if the jury is left with a reasonable doubt about the accused’s intention.".[4]

On a murder trial, where the instruction to the jury relates to intoxication, the jury must be instructed that:[5]

  1. that the evidence of intoxication may rebut the common sense inference, and
  2. if the jury has a reasonable doubt about the accused’s intention it must not apply the common sense inference.

The instruction must also "link the common sense inference to the evidence of impairment and intoxication".[6]

The jury must understand the following:[7]

  1. that they are not bound to draw the inference,
  2. that the inference may only be drawn after a consideration of all the evidence, including the evidence of intoxication, and
  3. that the inference cannot be applied if the jury is left with a reasonable doubt about the accused’s intention
Single vs Two-step Instructions

The instruction should usually be a single-step and should focus should be on intent, not the capacity or capability of the accused.[8] An exception may be made where expert evidence focuses on the question of capacity, in which case a two-step instruction may be more appropriate.[9]

Where a two-step instruction is used, the judge must consider whether there is a "reasonable possibility" that the evidence misleads the jury to believing that capacity is "the only relevant inquiry". To that end, judges should consider:[10]

  1. the number of times that reference to capacity is used;
  2. the number of times that reference to the real inquiry of actual intent is used;
  3. whether there is an additional "incapacity" defence;
  4. the nature of the expert evidence (i.e., whether the expert's evidence relates to the issue of capacity rather than to the effect of alcohol on the brain);
  5. the extent of the intoxication evidence;
  6. whether the defence requested that references to "capacity" be used in the charge to the jury;
  7. whether during a two‑step charge it was made clear that the primary function of the jury was to determine whether they were satisfied beyond a reasonable doubt that the accused possessed the requisite intent to commit the crime.
History

The law used to follow the rules set out in Public Prosecutions v Beard, [1920] A.C. 479, which states that (1) intoxication is only relevant insofar as it removes the accused's capacity to form the necessary intent and (2) there is a presumption that a person intends the natural consequences of their acts, which can only be rebutted by evidence of incapacity. However, this approach was found not to comply with the Charter as it infringed s. 7 and 11(d) of the Charter of Rights and Freedoms.[11]

  1. R v Lemky, 1996 CanLII 235 (SCC), [1996] 1 SCR 757, per McLachlin J
  2. Lemky, ibid.
  3. Lemky, ibid., at paras 15 to 16
  4. R v Seymour, 1996 CanLII 201 (SCC), [1996] 2 SCR 252, per Cory J, at para 23
  5. R v Kahnapace, 2010 BCCA 227 (CanLII), 255 CCC (3d) 342, per Smith JA, at para 46
  6. R v Szanyi, 2010 ONCA 316 (CanLII), 254 CCC (3d) 528, per Blair JA, at para 22
  7. Szanyi, ibid., at para 22
  8. R v Robinson, 1996 CanLII 233 (SCC), [1996] 1 SCR 683
  9. Robinson, ibid.
  10. Robinson, ibid.
  11. Robinson, supra

Evidence

Evidence of intoxication should be treated as going jointly to the intent of the offence and the "common sense inference" of intention.[1]

A determination of intoxication must be made "in light of all the circumstances".[2]

An accused advancing an intoxication defence is permitted to testify as to amount of alcohol consumed and the apparent effects it had on them.[3] However, simply establish evidence of consumption of alcohol is not sufficient to rely on intoxication as a defence.[4]

There is no requirement that the accused call expert evidence to establish automatism-like level of intoxication.[5]

  1. R v Carriere, 2001 CanLII 8609 (ON CA), 159 CCC (3d) 51, per Doherty JA
  2. R v Holland, 2013 NBCA 69 (CanLII), 1070 APR 384, per Richard JA, at para 20
  3. R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63, per Cory J
  4. Holland, ibid., at para 20
  5. R v SJB, 2002 ABCA 143 (CanLII), 166 CCC (3d) 537, per Berger JA (2:1)

Other

Case Digests

Automatism

This page was last substantively updated or reviewed January 2017. (Rev. # 79547)

General Principles

The defence of "non-insane automatism" is a defence available at common law.

The law treats "almost all automatisms as the product of a mental disorder leading…to an NCR-MD verdict."[1]

Automatism Defined

Automatism is "a state of impaired consciousness". This is in contrast with "unconsciousness, in which an individual, though capable of action, has no voluntary control over that action".[2] The person engages in "involuntary behaviour" such that "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." [3]

The term "automatism" refers to the involuntary conduct that is the "product of a mental state in which the conscious mind is disassociated from the part of the mind that controls action".[4] Accordingly, automatism relates only to the actus reus of the offence as it affects the voluntariness of the accused's actions.[5]

Effect of Finding

There are two types of automatism. There is mental disorder automatism and non-mental disorder automatism. The finding of the former leads to an Not Criminally Responsible finding. The latter leads to an acquittal.[6]

An NCR verdict permits a "post-verdict dangerousness assessment of the accused" that allows the court to tailor disposition to the specifics of the case.[7]

  1. R v Luedecke, 2008 ONCA 716 (CanLII), 236 CCC (3d) 317, per Doherty JA (overturning a verdict of non-insane automatism)
  2. R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, at para 156
  3. R v Rabey, 1977 CanLII 48 (ON CA), 37 CCC (2d) 461, per Martin JA at 155 to 156
  4. R v SH, 2014 ONCA 303 (CanLII), 310 CCC (3d) 455, per Watt JA, at para 63
    Luedecke, supra, at para 54
  5. SH, supra, at para 63
    R v Alexander, 2015 BCCA 484 (CanLII), 330 CCC (3d) 417, per Stromberg-Stein JA, at para 28 ("A defence of automatism amounts to a denial of the voluntariness component of the actus reus of the offence. A person who is unable to control whether to perform an act, or how to perform an act, cannot be said to have committed the act voluntarily. Conduct which is not voluntary cannot be criminal.")
  6. Alexander, ibid., at para 29
    Luedecke, supra
  7. Luedecke, supra

Burden and Standard of Proof

The burden is on the accused to prove involuntariness on a balance of probabilities.[1]

The accused has the evidentiary burden to adduce evidence to raise the issue for the court and the legal burden of proving the fact alleged.[2]

The defence must provide confirming psychiatric evidence. It must establish more than the claim that involuntariness is "plausible".[3]

  1. R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, at paras 171, 179 (“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.”)
  2. R v SH, 2014 ONCA 303 (CanLII), 310 CCC (3d) 455, per Watt JA, at para 65
    Stone, supra, at paras 173, 182
  3. Stone, supra, at p. 187
    R v Enns, 2016 ONSC 2229 (CanLII), per Fregeau J, at para 20

Requirement

In order to establish automatism, it is necessary for the defence to 1) claim that he acted involuntarily and 2) adduce expert evidence to support the involuntariness claim.[1]

The judge must then take a two-step inquiry. First, the judge must "determine whether the accused person has established a proper evidentiary foundation for a defence of automatism".[2] Second, the judge must determine which form of automatism should be left with the trier of fact".[3]

  1. R v SH, 2014 ONCA 303 (CanLII), 310 CCC (3d) 455, per Watt JA, at para 69
    R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, at paras 183 to 184
  2. R v Alexander, 2015 BCCA 484 (CanLII), 330 CCC (3d) 417, per Stromberg-Stein JA, at para 30
  3. Alexander, supra, at para 30

Evidentiary Burden

The evidentiary burden requires the admission of expert evidence that should be in the form of "psychiatric or psychological evidence".[1] It should establish:[2]

  1. evidence of a documented medical history of automatistic-like dissociative states;
  2. evidence of a bystander about the appearance of the accused before, during and after the alleged involuntary conduct (para 190); and
  3. evidence of motive or absence of motive
  1. R v SH, 2014 ONCA 303 (CanLII), 310 CCC (3d) 455, per Watt JA, at para 70
    R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, at para 192
  2. SH, supra, at para 71

Legal Character of Automatism (Mental Disorder vs Non-Mental Disorder)

See also: Not Criminally Responsible Due to Mental Disorder

Where the evidentiary burden has been made out to the satisfaction of the trier of fact, the judge must make a determination of the legal characterization of automatism.[1] That is, the judge must then determine "whether mental disorder or non-mental disorder automatism should be left with the trier-of-fact".[2]

In a jury trial, the judge must decide whether automatism should be put to the jury.[3]

The law recognizes two classes of automatism. There is mental disorder automatism and non-mental disorder automatism.[4] The former requires a "mental disorder" and the latter does not.[5]

The analysis should begin from the premise that automatism originates from a mental disorder..[6]

The courts should adopt a "holistic approach" to determine if the condition amounts to a disease of the mind.[7] This will involve consideration of three factors:[8]

  1. internal cause factor;
  2. continuing danger factor; and
  3. other policy concerns.

It is only in the "rare" cases that the form of automatism will be a non-mental disorder in nature.[9] The form of non-mental disorder automatism will usually occur when all the following are true:[10]

  1. the accused suffered a single incident of automatism;
  2. it was triggered by a specific external event;
  3. the trigger is unlikely to reoccur; and
  4. the vent could have caused a dissociative state in a normal person.

The question of which form of automatism is available is a question of law and so can only be decided by the judge.[11]

  1. R v SH, 2014 ONCA 303 (CanLII), 310 CCC (3d) 455, per Watt JA, at para 72
  2. R v Enns, 2016 ONSC 2229 (CanLII), per Fregeau J, at para 21 ("If the accused has laid a proper foundation for the defence of automatism and satisfied the evidentiary burden, the trial judge must then determine whether mental disorder or non-mental disorder automatism should be left with the trier of fact")
    R v Luedecke, 2008 ONCA 716 (CanLII), per Doherty JA
    Stone, supra, at p. 193
  3. SH, supra, at para 72
  4. SH, supra, at para 73
  5. SH, supra, at para 73
  6. SH, supra, at para 74
  7. R v Alexander, 2015 BCCA 484 (CanLII), 330 CCC (3d) 417, per Stromberg-Stein JA, at paras 36 to 38
  8. Alexander, supra, at para 38
    Stone, supra, at p. 203
  9. Stone, supra, at p. 199
    Alexander, supra, at para 36
  10. Alexander, supra, at para 37
    Enns, supra, at para 63
  11. Alexander, supra, at paras 32 to 33

Provocation

This page was last substantively updated or reviewed January 2020. (Rev. # 79547)

General Principles

Provocation is a "partial defence" that only applies to the charge of first or second degree murder.[1] It is a "partial defence" since it only has the effect of reducing murder to a conviction of manslaughter.[2]

The defence has its origin in the common law, but has been codified in s. 232:[3]

Murder reduced to manslaughter

232 (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.

What is provocation

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and 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 on it on the sudden and before there was time for their passion to cool.

Questions of fact

(3) For the purposes of this section, the questions

(a) whether the conduct of the victim amounted to provocation under subsection (2) [What is 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, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

Death during illegal arrest

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.
R.S., 1985, c. C-46, s. 232; 2015, c. 29, s. 7.
[annotation(s) added]

CCC


Note up: 232(1), (2), (3), and (4)

This section applies only to "those killings that result from a loss of self-control arising from the conduct of the victim that would constitute an indictable offence under the Criminal Code and be punishable by five or more years of imprisonment" (assuming offence date post-July 17, 2015).[4]

Purpose

The partial defence of provocation exists in law to acknowledge "the inherent frailty of the human condition".[5] A person can reasonably act "inappropriately and disproportionately, but understandably to a sufficiently serious wrongful act or insult".[6]

Standard of Proof

Where there is a reasonable doubt of whether the accused was provoked in committing the offence, the conviction will be for manslaughter and not murder.[7]

Air of Reality Test

A trial judge must put the defence to the trier-of-fact where there is evidence of an "air of reality" to the defence.[8] This means that there must be sufficient evidential basis with respect to each element of the defence. This requires that the evidence must be "reasonably capable of supporting the inferences necessary to make out the defence".[9] There must be evidence upon which a “reasonable jury acting judicially” could find the defence successful.[10] In deciding, the judge must consider "the totality of the evidence".[11] In the case of provocation, the question is whether a "properly instructed jury acting reasonably could be left in a reasonable doubt about the presence of each of the objective and subjective elements of provocation".[12] This process should require a "limited weighing " of the evidence and inquiring whether the trier-of-fact "acting reasonably on the basis of all of the evidence could draw the inferences necessary to give rise to a reasonable doubt about whether the accused is guilty of murder on the basis of provocation".[13]

The defence of provocation should only be left to the jury to the extent that the evidence is "reasonably capable of supporting the inferences necessary" to make out the defence.[14]

When considering the air of reality of an alleged provocation defence, the court may also consider self-defence as part of the defence.[15]

Evidence

In assessing provocation evidence, it is not enough to look only at the accused's testimony. They must also look at "any other evidence capable of supporting an inference of sudden rage or loss of control.[16]

Relationship to Other Defences

Where intoxication and provocation are both being advanced. It is necessary that jury instructions first be on the question of intoxication.[17]

Constitutionality

There is some suggestion that s. 232(2), as amended in 2015, is unconstitutional.[18]

  1. R v Singh, 2016 ONSC 3739 (CanLII), 131 WCB (2d) 140, per Fairburn J, at para 42
  2. Singh, ibid., at para 42
    R v Flores, 2011 ONCA 155 (CanLII), 269 CCC (3d) 194, per Watt JA, at para 71
  3. Singh, supra, at para 43
  4. Singh, supra, at para 43
    If offence date is pre-July 17, 2015, see history below
  5. Singh, supra, at para 45
    R v Cairney, 2013 SCC 55 (CanLII), [2013] 3 SCR 420, per McLachlin CJ, at para 36
    R v Bouchard, 2013 ONCA 791 (CanLII), 305 CCC (3d) 240, per Doherty JA, at para 55, aff’d 2014 SCC 64 (CanLII), per Cromwell J
  6. Singh, supra, at para 45
    R v Tran, 2010 SCC 58 (CanLII), [2010] 3 SCR 350, per Charron J, at para 22
  7. Singh, supra, at para 45
  8. R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J, at paras 50, 53
    R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per Cory J
  9. Tran, supra, at para 41
  10. Tran, supra, at para 41
  11. R v Krasniqi, 2012 ONCA 561 (CanLII), 295 OAC 223, per LaForme JA, at para 52
  12. Singh, supra, at para 37
    Tran, supra, at para 41
  13. Singh, supra, at paras 38 to 41
  14. R v Buzizi, 2013 SCC 27 (CanLII), [2013] 2 SCR 248, per Fish J, at para 8
  15. R v Phillips, 2017 ONCA 752 (CanLII), 355 CCC (3d) 141, per Brown JA
  16. R v Angelis, 2013 ONCA 70 (CanLII), 296 CCC (3d) 143, per Laskin JA, at para 33
  17. R v Rothgordt, 2013 BCCA 37 (CanLII), at para 20, per Finch JA
    see also Intoxication
  18. R v Simard, 2019 BCSC 531 (CanLII), per Thompson J

Requirements of Provocation

The statutory defence under section 232 only "becomes engaged upon proof of murder".[1]

The provocation must be a subjectively held belief that is reasonable.[2] This requires:

  1. a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control (objective) and
  2. the accused act upon that insult all of the sudden and before there was time for his passion to cool (subjective)

The objective requirement is to limit the defence's availability and "ensure that provocation strikes a balance between human frailty and ensuring that people are discouraged from committing homicidal acts of violence".[3] The restrictions should be to "only those acts and insults that are capable of causing an ordinary person to lose self-control are open for consideration as provocation".[4]

There are two separate inquiries.[5] The objective test considers whether:[6]

  1. there was a wrongful act or insult and
  2. whether the wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control?

The subjective test considers whether the accused acted[7]

  1. in response to the provocation and
  2. on the sudden before there was time for his or her passion to cool?
"sudden"

The "sudden" nature of the event must be one that "strikes on the mind of an accused who was unprepared for it".[8] Similarly, the accused's reaction or response to the event must be equally "sudden".[9]

anticipated insult or initiated confrontation

There is no absolute prohibition against the use of provocation in circumstances where the accused anticipated or prepared for the insult or had initiated the confrontation and received a foreseeable response.[10]

  1. R v Flores, 2011 ONCA 155 (CanLII), 269 CCC (3d) 194, per Watt JA, at para 72
  2. R v Thibert, 1996 CanLII 249 (SCC), [1996] 1 SCR 37, per Cory J, at para 4
    See also R v Tran, 2010 SCC 58 (CanLII), [2010] 3 SCR 350, per Charron J, at paras 22 to 23
    R v Singh, 2016 ONSC 3739 (CanLII), 131 WCB (2d) 140, per Fairburn J, at para 46 ("Provocation has both subjective and objective elements. It is not good enough that an accused reacts to a perceived wrongful act or insult from a purely subjective perspective. The accused’s reaction must be measured against one that would be expected of an ordinary person")
  3. Singh, supra, at para 47
    Thibert, supra, at para 4 ("the objective elements 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")
  4. Singh, supra, at para 47
    R v Cairney, 2013 SCC 55 (CanLII), [2013] 3 SCR 420, per McLachlin CJ, at para 26
  5. Tran, supra, at paras 10 to 11, 25, 36
    R v Hill, 1986 CanLII 58 (SCC), [1986] 1 SCR 313, per Dickson CJ, at p. 324
  6. Singh, supra, at para 48
  7. Singh, supra, at para 48
  8. R v Johnson, 2019 ONCA 145 (CanLII), 153 WCB (2d) 581, per Watt JA, at para 95
  9. Johnson, ibid., at para 95
  10. Johnson, ibid., at para 96

Objective Element

On the objective element, the "normal temperament and level of self-control" refers to a person who is not "exceptionally excitable, pugnacious or in a state of drunkenness".[1]

The objective inquiry is not simply into whether an ordinary person would commit the offence, but "whether the ordinary person would lose self-control to the degree that he formed the intention for murder".[2]

The ordinary person is one that can be ascribed the "particular characteristics that are not peculiar or idiosyncratic" such as "sex, age, or race"[3] This intends to "contextualize the objective standard" but not so far as to "individualize it".[4]

The policy behind the objective standard is the desire to "seek to encourage conduct that complies with certain societal standards of reasonableness and responsibility." [5] There is expected to be a "minimum standard of self-control on all members of the community".[6]

The objective standard can be subject to a "flexible approach".[7] This can mean that the consideration can take into account "qualities and characteristics" of an accused and the "context in which he or she lives", such as cultural norms, so long as they do not violate Charter and Canadian values.[8]

Evidence of anger can be used to support or demean the availability of the defence. It depends on whether the anger is the fuel for "cold blooded revenge" or the fuel for sudden rage resulting in a loss of control.[9]

Ordinary Person

The "ordinary person" is effectively the same as "reasonable person". It "reflects the normative dimensions" of appropriate conduct and must comply with "contemporary society’s norms and values worthy of the law’s compassion".[10] It may include "some...individual characteristics of the accused".[11]

Homophobia

A trial judge must begin from the position that an "ordinary person" is not homophobic.[12] Accordingly, an unsolicited homosexual kiss would not be expected to deprive an ordinary person of the power of self-control.[13]

  1. R v Hill, 1986 CanLII 58 (SCC), [1986] 1 SCR 313, per Dickson CJ, at p. 331
  2. Singh, supra, at para 49
    Hill (ONCA), supra, at paras 92, 99
  3. Hill, supra, at p. 331
    see also R v Thibert, 1996 CanLII 249 (SCC), [1996] 1 SCR 37, per Cory J, at para 14
  4. R v Tran, 2010 SCC 58 (CanLII), [2010] 3 SCR 350, per Charron J, at para 35
  5. Hill, supra, at pp. 324-25
    Singh, supra, at para 61 ("While the ordinary person must take on some of the accused’s qualities and characteristics, and be informed by the context in which the accused finds himself, the ordinary person must also be informed by contemporary social norms, values and behaviours, including fundamental Charter values")
    Tran, supra, at paras 19, 30, 35
    R v Pappas, 2013 SCC 56 (CanLII), [2013] 3 SCR 452, per McLachlin CJ, at paras 31 to 32
    See also R v Mayuran, 2012 SCC 31 (CanLII), [2012] 2 SCR 162, per Abella J
  6. Hill (ONCA), supra, at para 78
  7. Singh, supra, at para 60
    Tran, supra, at para 33
  8. Singh, supra, at paras 62 to 71
  9. R v Angelis, 2013 ONCA 70 (CanLII), 296 CCC (3d) 143, per Laskin JA, at para 36
  10. R v Johnson, 2019 ONCA 145 (CanLII), 153 WCB (2d) 581, per Watt JA, at para 93
  11. Johnson, ibid.
  12. Tran, supra, at para 34 ("...not be appropriate to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance.”)
  13. R v Whitehawk, 2018 SKCA 54 (CanLII), per Caldwell JA

Subjective Element

There must be "some evidence" that the conduct “sets the passions [of the accused] aflame”.[1]

Section 232 provocation is not relevant to the analysis of the accused's statement of mind regarding the victim's conduct in proving murder under s. 229(a).[2]

Evidence that is potentially provocative but does not fall under s. 232, can still be used to assess the accused state of mind in proving murder under s. 299(a).[3]

Considerations

In deciding whether an unlawful killing amounts to murder, the trier of fact "must consider all the evidence that sheds light on the accused state of mind at the time of the killing".[4]

  1. R v Dupe, 2011 ONSC 3316 (CanLII), 94 WCB (2d) 714, per Dambrot J, at para 42
    R v Faid, 1983 CanLII 136 (SCC), [1983] 1 SCR 265, per Dickson J, at p. 276
  2. R v Bouchard, 2013 ONCA 791 (CanLII), 305 CCC (3d) 240, per Doherty JA appealed to SCC
  3. Bouchard, ibid.
  4. R v Flores, 2011 ONCA 155 (CanLII), 269 CCC (3d) 194, per Watt JA, at para 75

History

The amendments to s. 232 are not restrospective.[1] Only offences occurring after the amendment in force on July 17, 2015, will be subject to the current version of the provision.[2]

Prior to July 17, 2015, s. 232 read:

Murder reduced to manslaughter

232 (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.

What is provocation

(2) A wrongful act or an 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 on it on the sudden and before there was time for his passion to cool.

Questions of fact

(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, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

Death during illegal arrest

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section.
R.S., c. C-34, s. 215.

CCC

The difference between the versions is found in s. 232(2) and (3)(a).

  1. see Zero Tolerance for Barbaric Cultural Practices Act, S.C. 2015, c. 29, in force on July 17, 2015
  2. R v Singh, 2016 ONSC 3739 (CanLII), 131 WCB (2d) 140, per Fairburn J, at para 44

Necessity

This page was last substantively updated or reviewed July 2020. (Rev. # 79547)

General Principles

The common law provides for a defence of necessity (sometimes called "duress of circumstances") for "emergency situations where normal human instincts, whether of self‑preservation or of altruism, overwhelmingly impel disobedience."[1] The defence provides a legal excuse (as opposed to a justification) for conduct making out the offence.[2]

Purpose of Defence

The key basis for the common law defence is the "criterion" of "moral involuntariness of the wrongful action".[3] Involuntariness is measured against "society's expectation of appropriate and normal resistance to pressure".[4]

Availability

To be truly involuntary. The act must be "inevitable" and "unavoidable".[5]

There is no need for an accused to have clean hands to engage the defence. Negligence or involvement in a criminal or immoral activity is not a bar to the defence.[6]

However, the defence will not be available where "actions or circumstances which indicate that the wrongful deed was not truly involuntary" or where there exists a reasonable legal alternative..[7]

Limited Scope

The defence is to be "strictly controlled and scrupulously limited" to situations of true involuntariness.[8]

Burden of Proof

The accused has the burden to establish an air of reality that the defence applies. This requires at least some evidence that all the elements of necessity may be satisfied. Once established the burden moves to the Crown to establish beyond a reasonable doubt that at least one of the elements of the defence does not apply.[9]

  1. R v Perka, 1984 CanLII 23 (SCC), [1984] 2 SCR 232, per Dickson J
    R v Ruzic, 2001 SCC 24 (CanLII), [2001] 1 SCR 687, per LeBel J, at para 68
  2. Perka, ibid.
  3. R v McKay, 1992 CanLII 1952 (BC CA), 13 CR (4th) 315, per Taylor JA
    Perka, supra
  4. McKay, supra
    Perka, supra
  5. McKay, supra
    Perka, supra
  6. McKay, supra
    Perka, supra
  7. McKay, supra
    Perka, supra
  8. Perka, ibid.
    R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam, at paras 26 to 34
  9. Perka, supra, at p. 404 (cited to CCC) see also Air of Reality Test

Elements

The elements to make out the defence of necessity requires proof that:

  1. the accused must be in imminent peril or danger;[1]
  2. the accused must have had no reasonable legal alternative to the course of action he or she undertook; and
  3. the harm inflicted by the accused must be proportional to the harm avoided by the accused.

The elements of imminent peril and no alternative is determined on a modified objective standard taking into account the situation and characteristics of the accused.[2] This involves, the trier-of-fact determining whether the accused's "perception of his situation, and of the absence of any lawful alternatives, had an objectively reasonable foundation".[3]

The element of proportionality is measured on an objective standard.[4]

  1. See R v Morgentaler v The Queen, 1975 CanLII 8 (SCC), [1976] 1 SCR 616, per Pigeon J, at p. 678
  2. R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam, at paras 32 to 34 (“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.”)
    R v Nelson, 2007 BCCA 490 (CanLII), 228 CCC (3d) 302, per Rowles JA, at para 32
  3. Nelson, ibid., at para 39
  4. Latimer, ibid., at para 34
    Nelson, supra

Imminent Peril or Danger

The peril or danger must be more than just foreseeable or likely. It must be near and unavoidable. At the least, "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."[1]

The consequence must be "imminent or harm unavoidable and near... It must be on the verge of transpiring and virtually certain to occur."[2]

Necessity "may be applied only in truly emergent circumstances, and only when the person at risk has no alternative but to break the law."[3] It cannot apply to conduct that had "been specifically enjoined", nor can it "operate to avoid a peril that is lawfully authorized by the law".[4]

  1. R v Perka, 1984 CanLII 23 (SCC), [1984] 2 SCR 232, per Dickson J
  2. R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam, at para 29
  3. MacMillan Bloedel Ltd. v Simpson, 1994 CanLII 1731 (BC CA), 89 CCC (3d) 217, per McEachern CJ
  4. MacMillan, ibid., at paras 45 to 46

No Reasonable Legal Alternative

The question of reasonableness turns on the particular circumstances.

Necessity requires that compliance with the law be "demonstrably impossible"[1]

The inquiry in the second requirement focuses on whether the accused had any real choice. Where he has no real choice then his actions are effectively not "morally voluntary".[2]

The accused "need not be placed in the last resort imaginable, but he must have no reasonable legal alternative."[3]

The judge need not consider every potential possibility in hindsight.[4]

In an impaired driving case, it has been accepted that the accused need not knock on the doors of strangers late at night during a storm to find someone who would drive them.[5]

  1. R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973, per Lamer CJ, at para 53
  2. R v SRM, 2010 SKPC 93 (CanLII), 361 Sask R 46, per Tomkins J, at para 44
  3. R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam, at para 30
  4. R v Costoff, 2010 ONCJ 109 (CanLII), 74 CR (6th) 369, per Bourque J, at para 26 cited with approval in R v Murray, 2010 ABQB 784 (CanLII), 503 AR 100, per Verville J, at para 35
  5. Costoff, supra, at para 24

Proportionate Consequences

To be proportional, the harm avoided does not need to "clearly outweigh" the harm inflicted. [1] The harm avoided must only be of "comparable gravity" to the harm inflicted.[2] Or alternatively, it must be "less than" the harm that was sought to be avoided.[3]

In considering this element on an impaired charge. The harm associated with the offence is grave. The fact that no one is hurt is of little importance. The comparator harm avoided should relate to the "preservation of life".[4]

  1. R v Latimer, 2001 SCC 1 (CanLII), [2001] 1 SCR 3, per curiam, at para 31
  2. Latimer, ibid., at para 31
  3. R v Perka, 1984 CanLII 23 (SCC), [1984] 2 SCR 232, per Dickson J, at p. 253 ("I would therefore add to the preceding requirements a stipulation of proportionality expressable, as it was in Morgentaler, by the proviso that the harm inflicted must be less than the harm sought to be avoided.")
  4. R v Desrosiers, 2007 ONCJ 225 (CanLII), [2007] OJ No 1985 (ONCJ), per Keast J, at para 31
    R v Costoff, 2010 ONCJ 109 (CanLII), [2010] OJ 1261, per Bourque J, at para 29

Contributory Fault

An accused's contributary fault will also disentitle them from using the defence. Where the circumstances causing the offence "was clearly foreseeable to a reasonable observer" and the accused "contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law", then their actions would not be involuntary.[1]

  1. R v Perka, 1984 CanLII 23 (SCC), [1984] 2 SCR 232, per Dickson J, at p. 256
    R v CWV, 2004 ABCA 208 (CanLII), 186 CCC (3d) 243, per Berger JA, at para 9

Specific Types of Offences

Mischief

Necessity was not available for an accused who burned a highway bridge in order to draw attention to its need for repair as there were reasonable alternatives.[1]

  1. R v Stevenson, [1986] 5 WWR 737, 42 Man.R. (2d) 133 (Man. Q.B.)(*no CanLII links) leave denied, [1987] 1 WWR 767

Impaired Driving

Where the accused or someone in his protection is at "immediate risk of physical harm, if no reasonable alternative is available and, if the driving is for no longer than is necessary to escape the harm, the defence of necessity will succeed".[1]

Necessity no longer applies where the driver drove longer than is necessary in the circumstances.[2]

  1. R v LS, 2001 BCPC 462 (CanLII), [2001] BCJ No 3062, per Bayliff J, at para 25
  2. R v Drake, 1998 CarswelMan 232 (Prov.Ct.)(*no CanLII links)
    the accused drove past a police station, hospital and gas station
    R v Brown, 1998 CarswellOnt 788 (Sup.Ct.Just.)(*no CanLII links)
    drove past a police station
    R v Murray, 2010 ABQB 784 (CanLII), 503 AR 100, per Verville J, at paras 33 to 35

Dangerous Driving

Necessity is a potential defence for dangerous driving causing death where the accused had reason to flee from gunshots that were putting his life at risk.[1]

  1. Primus c R, 2010 QCCA 1541 (CanLII), 261 CCC (3d) 159, per Hilton JA

Break and Enter

Necessity has been considered in relation to break and enter. [1]

  1. R v John Doe, 2007 BCCA 490 (CanLII), [2007] BCJ No 2111, 228 CCC (3d) 302, per Rowles JA (new trial ordered for failure to consider all factors. Accused broke into house to be warm and get food)

Fraud and Related

A woman was found not guilty of fraud for failing to report her co-habitation to social services due to suffering from battered wife syndrome and believed she had no other choice. [1] Battered wife syndrome was not successful in a necessity defence for possession and laundering proceeds of crime.[2]

False pretenses not available where there are other options available.[3]

  1. R v Lalonde, 1995 CanLII 7155 (ON SC), [1995] OJ No 160, 22 OR (3d) 275, per Trainor J
  2. R v Stephen, 2008 NSSC 31 (CanLII), [2008] NSJ No 43 (N.S.S.C.), per Cacchione J
  3. R v Deveau, [1993] NBJ No 332 (N.B. Prov. Ct.)(*no CanLII links)

Case digests

Duress

This page was last substantively updated or reviewed January 2015. (Rev. # 79547)

General Principles

Duress, along with necessity, is an excuse-based defence.[1] All three defences arise from external threats.[2] duress can equally be referred to as compulsion, or coercion.[3]

Duress and necessity are "understood as based on the same ... principles". They are both based on "normative involuntariness".[4] They both differ from self-defence as the source of the danger is a third party and not the victim.[5]

The defence of duress is available "when a person commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit it".[6]

Relationship Between Common Law and Section 17

The defence of duress exists both in statute under s. 17 of the Criminal Code and under the common law.[7]

The distinction between the two is that the statutory defence does not apply to parties, including whether they are aiders and abettors.[8] The common law, however, can still apply for parties to the offence.[9]

There is a further distinction of the statutory defence excluding certain types of defences while common law would apply to all types of offences.[10]

The tests for applying the defence should be "largely the same" as between the statutory and common law versions of the defence.[11]

  1. R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973, per Lamer CJ, at para 19
    R v Ryan, 2013 SCC 3 (CanLII), [2013] 1 SCR 14, per LeBel and Cromwell JJ, at paras 13 to 33
  2. Ryan, ibid., at para 17
  3. R v Sheridan, 2010 CarswellOnt 11203(*no CanLII links)
  4. Hibbert, supra, at para 54 (“the similarities between the two defences are so great that consistency and logic require that they be understood as based on the same juristic principles”)
  5. Ryan, ibid., at para 18
  6. Ryan, ibid., at para 2
  7. R v Ruzic, 2001 SCC 24 (CanLII), [2001] 1 SCR 687, per Lebel J
  8. R v Paquette, 1976 CanLII 24 (SCC), [1977] 2 SCR 189, per Martland J
    R v Wilson, 2011 ONSC 3385 (CanLII), 272 CCC (3d) 35, per Code J, at para 50
  9. Paquette, ibid.
    Wilson, ibid.
    Ryan, supra, at para 36
  10. Ryan, supra, at paras 83 to 84
  11. Ryan, supra, at para 81

Statutory Defence

Compulsion by threats

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 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).
R.S., 1985, c. C-46, s. 17; R.S., 1985, c. 27 (1st Supp.), s. 40.
[annotation(s) added]

CCC


Note up: 17

The requirements of s.17 to have “presence” and “immediacy” is unconstitutional for violating s.7.[1] Thus, that portion of the section has no force or effect. The listed excluded offences have been found to be unconstitutional and so must be read out of the language of s. 17. That includes robbery.[2]

Despite the existence of the common law defence, all offences listed as defence exceptions in s.17 cannot be covered by common law.[3] Any included offences to offences to the exempted offences listed in s. 17 are also exempted from the statutory defence.[4]

The statutory defence requires: [5]

  1. there must be a threat of bodily harm directed against a 3rd party;
  2. the accused must believe that the threat will be carried out;
  3. the offence must not be listed as exempted in s. 17; and,
  4. the accused cannot be a party to a conspiracy or criminal association such that the person is subject to compulsion.

In addition to the statutory elements, the applicant must also satisfy three additional common law requirements at the same time:[6]

  1. no safe avenue of escape
  2. a close temporal connection
  3. proportionality

Section 18 removes the common law presumption that a woman who commits an offence is doing so at the compulsion of her husband. (known as the doctrine of marital coercion)

In the context of murder, s 17 must be read down requiring that there be an immediate threat of death while in the presence of the threatener. The principal must have no other avenue of escape and the act must be proportionate.[7] Proportionality is limited by the number of deaths, where enough deaths cannot ever be justified.[8]

The exclusion of "robbery" and "assault with a weapon" from the defence of duress violates s. 7 of the Charter and should be struck out of the legislation.[9]

Listed Offences

The offences explicitly excluded from the statutory defence of duress under s. 17 are:

  1. R v Ruzic, 2001 SCC 24 (CanLII), [2001] 1 SCR 687, per LeBel J
  2. Ryan, supra, at para 36
  3. R v Mohamed, 2012 ONSC 1715 (CanLII), per Pattillo J, at para 20
  4. R v Li, 2002 CanLII 18077 (ON CA), 162 CCC (3d) 360, per Finlayson JA -- kidnapping charge was also exempted as part of the abduction charge
  5. Ruzic, supra
    Ryan, supra, at para 43
  6. Ruzic, supra, at para 55
    Ryan, supra, at paras 44 to 46
  7. R v Sheridan, 2010 CarswellOnt 11203 (*no CanLII links)
    cf. R v Sandham, 2009 CanLII 58605 (ON SC), per Heeney J - concluding s. 17 does not apply to a principal to murder
  8. Sheridan, supra
  9. R v Allen, 2014 SKQB 402 (CanLII), per Kovach J

Compulsion of Spouse

Compulsion of spouse

18 No presumption arises that a married person who commits an offence does so under compulsion by reason only that the offence is committed in the presence of the spouse of that married person.
R.S., c. C-34, s. 18; 1980-81-82-83, c. 125, s. 4.

CCC


Note up: 18

Common Law

At common law, duress is an available defence to any offences short of murder.[1] It must be shown that the accused's will was overborne by threats of death or serious personal injury such that accused is not acting voluntarily.[2]

There are three elements to the defence.[3] It must be established that:

  1. the accused must be subject to a “threat of death or serious physical injury”
  2. on an objective standard, no safe avenue of escape existed [4] or any “reasonable opportunity to render the threat ineffective.”[5]
  3. “there must be proportionality between the threat and the criminal act alleged”[6]

The elements have been set out as: [7]

  1. a threat of death or bodily harm to the accused by a third person;
  2. the accused reasonably believed that the threat could be carried out;
  3. the accused had no safe avenue of escape;
  4. close temporal connection between the threats and the harm threatened
  5. proportionality between the harm threatened and the harm inflicted on a modified objective standard; and
  6. the accused was not a party to a conspiracy or association where the accused knew that threats or coercion were a possible result to the activity.

As with all affirmative defences, if the defence is raised, the Crown has the burden of proving beyond a reasonable doubt that at least one of the elements is not available.[8]

The threat need not be of immediate death or bodily harm. [9]

The defence will not be available through the common law where the accused puts themselves in a position where they are likely to receive threats.[10]

The standard used is "objective-subjective", which is the same for the defence of necessity.[11]

The test under the common law is “arguably more stringent than s. 17” as the provision “is entirely subjective and does not require that the accused's belief be reasonable”[12]

Burden

The accused must present "some evidence" on the necessary elements of the defence. Only then does the burden move to the Crown to prove beyond a reasonable doubt that the accused not acting under duress.[13]

  1. R v Sandham, 2009 CanLII 58605 (ON SC), per Heeney J, at para 7 - the common law has always excluded murder from duress defences
  2. R v TLC, 2004 ABPC 79 (CanLII), 366 AR 203, per Semenuk J
  3. R v Wilson, 2011 ONSC 3385 (CanLII), 272 CCC (3d) 35, per Code J, at para 61
  4. R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973, per Lamer CJ
    R v Keller, 1998 ABCA 357 (CanLII), 131 CCC (3d) 59, per Sullivan JA
  5. Wilson, supra, at para 61
  6. Wilson, supra, at para 61
  7. R v Yumnu, 2010 ONCA 637 (CanLII), 260 CCC (3d) 421, per Watt JA, citing Hibbert, supra, at paras 51 to 62 (appealed to SCC)
    Ryan, supra, at para 55
  8. Wilson, supra, at para 63
  9. R v Ruzic, 2001 SCC 24 (CanLII), [2001] 1 SCR 687, per LeBel J
  10. R v Li, 2002 CanLII 18077 (ON CA), 162 CCC (3d) 360, per Finalyson JA
  11. Ruzic, supra, at para 71
  12. Ruzic, supra, at p. 35
  13. Ruzic, supra, at para 100 ("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.")

Elements

Threat of Bodily Harm or Death

Other instances of this requirement have stated that there must be "serious" or "grievous" bodily harm. [1] However, the seriousness of harm is best dealt with in the proportionality element rather than this one.[2]

There is no requirement that there be gestures or words that reasonably communicate a threat to amount to an "implied threat" within the meaning of a duress defence.[3]

Where there is an ambiguous "implied threat", there is no requirement for the accused to take reasonable steps to determine whether the threat is real.[4]

Third Party Threats

Threats of harm to third parties may be available as a defence of duress.[5]

Threats by Criminal Organizations

The accused cannot rely on the threats against him by a criminal organization that voluntarily joined, knowing that he may be pressured to commit crimes.[6]

  1. e.g. R v Yumnu, 2010 ONCA 637 (CanLII), 260 CCC (3d) 421, per Watt JA, appealed to SCC
  2. R v Ryan, 2013 SCC 3 (CanLII), [2013] 1 SCR 14, per LeBel and Cromwell JJ, at para 55
  3. R v Mcrae, 2005 CanLII 26592 (ON CA), 199 CCC (3d) 536, per Simmons JA
  4. Mcrae, ibid.
  5. R v Li, 2002 CanLII 18077 (ON CA), 162 CCC (3d) 360, per Finalyson JA
  6. Li, ibid.

Reasonable Belief That the Threat will be Carried Out

The determination of whether there was "reasonable belief that the threats will be carried out" under the common law defence is to be assessed objectively.[1] Under the statutory s. 17 defence, the test is a subjective one.[2]

  1. R v Williams, 2002 BCCA 453 (CanLII), 168 CCC (3d) 67, per Smith JA (3:0)
  2. Williams, ibid.

Close Temporal Connection

This requirement is tied to the element of "no safe avenue of escape" since an absence of temporal connection necessarily gives rise to the possibility of a safe avenue of escape.[1]

  1. R v Ryan, 2013 SCC 3 (CanLII), [2013] 1 SCR 14, per LeBel and Cromwell JJ, at para 48

No Safe Avenue of Escape

This element is evaluated on a modified objective standard.[1]

  1. R v Ryan, 2013 SCC 3 (CanLII), [2013] 1 SCR 14, per LeBel and Cromwell JJ, at paras 47, 65
    R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973, per Lamer CJ, at paras 56 to 61

Proportionality

Proportionality concerns "whether the harm threatened" (or avoided) was "equal or greater than the harm caused".[1] This requirement is integral to the principle of moral voluntariness since the greater the gap between harm threatened and the harm imposed leads to the likelihood that the harm imposed was voluntary.[2]

This is divided into two inquiries:[3]

  1. the harm threatened must be equal or greater than the harm inflicted by the accused
  2. the accused's actions must "accord with what society expects from a reasonable person similarly situated in that particular circumstance." This involves considering what is "normal" resistance to a threat.

These elements are considered on a modified objective standard.[4]

The jury should not be insturcted that the Crown must disprove lack of proportionality beyond a reasonable doubt.[5]

The judge may instruct a jury to consider whether the accused exhibited "reasonable fortitude" in resisting threats.[6]

  1. R v Ryan, 2013 SCC 3 (CanLII), [2013] 1 SCR 14, per LeBel and Cromwell JJ, at para 70
    R v Williams, 2002 BCCA 453 (CanLII), 168 CCC (3d) 67, per Smith JA (3:0)
  2. R v Perka, 1984 CanLII 23 (SCC), [1984] 2 SCR 232, per Dickson J, at pp. 252, 259
  3. Perka, ibid., at p. 252
    also Ryan, supra, at para 73
  4. Ryan, supra, at paras 72 to 73
  5. Williams, supra
  6. Williams, supra

Entrapment

General Principles

See also: Abuse of Process

Entrapment refers to the legal defence that can be claimed by an accused in response to evidence of the commission of a crime. A proven claim of entrapment will result in the staying of the proceedings.

The defence of entrapment is not a traditional justification or excuse. It is a form of an abuse of process application resulting in a stay of proceedings.[1] The application is separate from the issue of guilt or innocence and is dealt with separate from a trial on the merits.[2]

Entrapment is not a formal defence in law, but rather it is a procedural disentitlement to convict on the basis of abuse of process and fairness.[3]

The doctrine relies in part on the notion that certain police tactics "leave no room for the formation of independent criminal intent by the accused" and so they should not be held liable.[4]

The doctrine is not the same as the doctrine of "innocence at stake", which relates to the standard to setting aside privilege. Privilege can only be set aside in the most "egregious and shocking" cases.[5]

Purpose

The purpose of the entrapment doctrine "reflects judicial disapproval of unacceptable police or prosecutorial conduct in investigating crimes".[6] It balances the interests of police flexibility in "the techniques they use to investigate criminal activity"--especially in "consensual crimes" which are difficult to detect by conventional crime--against the use of "techniques would offend our notions of decency and fair play".[7] It permits courts to weed out "law enforcement techniques that involve conduct that the citizenry cannot tolerate”.[8]

Availability

A defence is available when:[9]

  1. 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 ;
  2. the authorities provide a person with an opportunity to commit an offence without acting pursuant to bona fide inquiries; or
  3. 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 should only be granted in the "clearest of cases".[10] Such as where the "administration of justice has been brought into disrepute".[11]

Burden of Proof

Before an application for a stay can be made, the trier-of-fact must be satisfied that the Crown has proven the elements of the offence beyond a reasonable doubt.[12]

Once the Crown has discharged its burden, the accused bears the burden of proof to "demonstrate by a preponderance of evidence that the prosecution is an abuse of process".[13] The standard of proof required by the accused is on the balance of probabilities.[14]

The burden should be high as "[t]he state must be given substantial room to develop techniques which assist it in its fight against crime in society."[15]

With respect to the entrapment test requiing reasonable suspicion, the burden is upon the defence to establish on balance of probabilities that "neither of those criteria is satsified]".[16]

The burden being on the accused does not have connection to the presumption of innocence.[17]

The existence of entrapment is a question that can only be answered by the judge and not the jury.[18]

Appellate Review

The issue of entrapment is a question of law or mixed fact and law.[19]

  1. R v Sargent, 2010 ABPC 285 (CanLII), 500 AR 25, per Holmes J, at para 20
    R v Pearson, 1998 CanLII 776 (SCC), [1998] 3 SCR 620, per Lamer CJ and Major J
    R v Shirose, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per per Binnie J
  2. Sargent, supra, at para 19
    Pearson, supra
  3. R v Mack, 1988 CanLII 24 (SCC), 44 CCC (3d) 513, per Lamer CJ
    R v Amato, 1982 CanLII 31 (SCC), [1982] 2 SCR 418, per Dickson J (5:4)
  4. Amato, supra, per Ritchie J (concurring), at p. 473 ("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.")
  5. R v Schacher, 2003 ABCA 313 (CanLII), 179 CCC (3d) 561, per Ritter JA, at para 28
    See also Solicitor-Client Privilege
  6. R v Imoro, 2010 ONCA 122 (CanLII), 251 CCC (3d) 131, per Laskin JA, at para 8
  7. Imoro, ibid., at para 9
  8. Mack, supra
  9. Mack, supra, at p. 559 (at para 126)
    Imoro, supra, at para 10 ("first, when state authorities, acting without reasonable suspicion or for an improper purpose, provide a person with an opportunity to commit an offence; and second, even having reasonable suspicion or acting in the course of a good faith inquiry, the police go beyond providing an opportunity to commit a crime and actually induce the commission of an offence.")
  10. Mack, supra, at para 154
  11. Mack, supra, at paras 152 to 153
  12. Mack, supra, at para 146
  13. Mack, supra, at p. 568 ("The interests of the court, as guardian of the administration of justice, and the interests of society in the prevention and detection of crime can be best balanced if the accused is required to demonstrate by a preponderance of evidence that the prosecution is an abuse of process because of entrapment")
    Pearson, supra, at para 12
  14. Mack, supra
  15. Mack, supra
  16. R v Swan, 2009 BCCA 142 (CanLII), 244 CCC (3d) 108, per Prowse JA
  17. Pearson, supra
  18. Mack, supra, at para 146
  19. Mack, supra

Reasonable Suspicion

See also: Reasonable Suspicion

The requirement of "reasonable suspicion" before providing an opportunity to commit an offence exists between "suspicion" and "reasonable grounds".[1]

What constitutes "reasonable suspicion" will vary on the circumstances. It depends on the information and its reliability but will be necessarily be "low".[2]

Random Virtue Testing

Police are not permitted to engage in random "Random virtue testing" (RVT).[3]

RVT exists where the officer has no suspicion that:[4]

  1. the person is already engaged in the particular criminal activity, or
  2. the physical location with which the person is associated is a place where the particular criminal activity is likely occurring.

Certain provinces have found that RVT by police, such as randomly calling phone numbers found on a suspect's cell phone in hope of catching a drug trafficker, oversteps their bounds of bona fides police investigations.[5]

Conducting a a DNA canvass of suspects has been upheld as a valid investigation technique.[6]

Already Engaged in Criminal Activity

An invitation to treat (as opposed to an offer) is presumptively sufficient to establish that the suspect "is already engaged in the proposed criminal enterprise". [7]

  1. R v Cahill, 1992 CanLII 2129 (BC CA), 13 CR (4th) 327, per Wood JA
  2. Cahill, ibid.("What will give rise to a reasonable suspicion, in the context under discussion, will necessarily depend on all of the circumstances facing the investigating authorities and thus will vary from case to case. ...[suspicion will be] based on information provided to the authorities, the reliability of the informant...the threshold established by such consideration will necessarily be low.")
  3. Mack, supra, at p. 560
  4. R v Barnes, 1991 CanLII 84 (SCC), [1991] 1 SCR 449, per Lamer CJ (7:2), at pp. 10-11
    R v Hunt, 1996 CanLII 1207 (BC SC), per McKinnon J, at para 7
  5. R v Swan, 2009 BCCA 142 (CanLII), 244 CCC (3d) 108, per Prowse JA, at para 43
    R v Clothier, 2011 ONCA 27 (CanLII), 266 CCC (3d) 19, per Laskin JA, at para 14 ("The police should not be allowed to randomly test the virtue of citizens by offering them an opportunity to commit a crime without reasonable suspicion that they are already engaged in criminal activity; or worse, to go further and use tactics designed to induce citizens to commit a criminal offence.")
  6. R v Osmond, 2012 BCCA 382 (CanLII), per Hall JA
  7. R v Gingras, 2013 BCCA 293 (CanLII), 340 BCAC 74, per Donald JA

Bona Fides Inquiry

An "exception to [the rule establishing entrapment] 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."[1]

  1. R v Barnes, 1991 CanLII 84 (SCC), 63 CCC (3d) 1, per Lamer CJ (7:2), at pp. 10-11

Opportunity to Commit an Offence

There is nothing wrong with police "opening up a dialogue" or initiating "exploratory conversation" that is short of offering an opportunity to incriminate himself.[1]

Police may "present an opportunity to commit a particular crime to a person who arouses a [reasonable] suspicion that he or she is already engaged in the particular activity".[2]

Opportunity to Commit vs Exploratory Inquiry

There is a distinction between making an opportunity to commit an offence and simply investigating a tip through exploratory inquiry.[3]

In drug trafficking context, statements such as “can you meet me?” and “where are you?” were held to fall short of an opportunity to commit.[4]

Inducements

An inducement occurs where "the police have gone beyond merely providing the opportunity for the commission of a crime and have entered into the realm of the manufacturer of criminal conduct".[5]

The character of the inducement does not necessarily have to be "deceit, fraud, trickery or reward", but can include "calculated inveigling and persistent importuning".[6]

One approach would be "to consider whether the average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime".[7]

Factors to be considered whether the police went beyond "providing an opportunity to commit an offence" include but are not limited to:[8]

  • 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.
  1. R v Hersi, 2014 ONSC 4143 (CanLII), per Baltman J, at para 19
  2. R v Bayat, 2011 ONCA 778 (CanLII), 280 CCC (3d) 36, per Rosenberg JA, at para 14
  3. R v Williams, 2014 ONSC 2370 (CanLII), 11 CR (7th) 110, per Trotter J, at paras 20 and 27 - finds entrapment
  4. R v Olazo, 2012 BCCA 59 (CanLII), 287 CCC (3d) 379, per Donald JA
  5. R v Mack, 1988 CanLII 24 (SCC), [1988] 2 SCR 903, per Lamer J, at para 120
  6. Mack, supra, at para 121
  7. R v Argent, 2014 ONSC 4270 (CanLII), OJ No 3041, per Parayeski J, at para 19
  8. Mack, supra, at p. 560

Application to Specific Offences

Drug Trafficking

An undercover officer who attempts to buy drugs from someone suspected of selling drugs does not constitute entrapment.[1]

Police appeared to be permitted to "achieve a level of reasonable suspicion by engaging in the preliminaries of a drug transaction" such as by asking for a drug "hook up".[2]

  1. R v Barnes, 1991 CanLII 84 (SCC), 63 CCC (3d) 1, per Lamer CJ (7:2)
  2. R v Olazo, 2012 BCCA 59 (CanLII), 287 CCC (3d) 379, per Donald JA, at para 25

Internet Luring

Police are permitted to engage people on the internet in regions on the internet such as Craigslist in the same manner that police enter into bad neighbourhoods for engaging people for known known drug dealing activity.[1]

Merely making contact with someone online does not amount to creating an opportunity to offend.[2]

Where the suspect takes the lead in directing the conversation then the officer is not "offering an opportunity to commit to commit an offence".[3]

Ensnaring accused through the posting of false online ads advertising underage prostitutes is not generally entrapment.[4]

An officer should not engage in communication "of a sexual provocation nature" until the reasonable suspicion has been formed.[5]


Non-Criminal Offences

The defence of entrapment is not permitted in regulatory offences such as the sale of tobacco to minors. Random virtue testing is available.[6]

  1. R v Argent, 2014 ONSC 4270 (CanLII), OJ No 3041, per Parayeski J, at para 18
  2. R v Chiang, 2012 BCCA 85 (CanLII), 286 CCC (3d) 564, per Hall JA
  3. R v Bayat, 2011 ONCA 778 (CanLII), 280 CCC (3d) 36, per Rosenberg JA
  4. Chiang, supra
  5. Bayat, supra
  6. R v Clothier, 2011 ONCA 27 (CanLII), 266 CCC (3d) 19, per Laskin JA

Procedure

A defence of entrapment cannot be advanced until after the crown has proven all of the elements of the offence and there is a finding of guilt. A "two-stage trial" must be undertaken. First, the question of guilt is determined. If found guilty, the judge determines whether there was entrapment.[1]

The decision of whether entrapment exists is in the authority of the trial judge and not the jury.[2]

Entrapment on Guilty Plea

The entrapment defence may be raised after a plea of guilty.[3]

Disclosing Evidence of Entrapment

Evidence of entrapment, irrespective of its value towards guilt, must be disclosed at the earliest opportunity.[4]

  1. R v Mack, 1988 CanLII 24 (SCC), [1988] 2 SCR 903, per Lamer J
    R v Imoro, 2010 ONCA 122 (CanLII), 251 CCC (3d) 131, per Laskin JA
    R v Maxwell, 1990 CanLII 6693 (ON CA), 61 CCC (3d) 289, per Brooke JA
    considered in R v Bérubé, 2012 BCCA 345 (CanLII), 326 BCAC 241, per Groberman JA
  2. Mack, supra
  3. Maxwell, supra
  4. R v Pearson, 1994 CanLII 5433 (QC CA), 89 CCC (3d) 535, 60 Q.A.C. 103, per Fish JA upheld at 130 CCC (3d) 293
    see also Disclosure

Remedy

The usual remedy for entrapment is a stay of proceedings under section 24 (one) and not merely an exclusion of evidence under section 24 (2).[1] It is generally said that the alternative remedy of exclusion of evidence is not appropriate given that the unfairness relates to the proceedings having ever begun.[2]

  1. R v Imoro, 2010 ONCA 122 (CanLII), 251 CCC (3d) 131, per Laskin JA R v Mack, 1988 CanLII 24 (SCC), [1988] 2 SCR 903, per Lamer J
    R v Meuckon, 1990 CanLII 10991 (BC CA), 57 CCC (3d) 193, per Lamert JA
    R v Kenyon, 1990 CanLII 1263 (BC CA), 61 CCC (3d) 538, per curiam
  2. Imoro, supra

Reasonable Suspicion

See Also

Reasonable Excuse

This page was last substantively updated or reviewed January 2015. (Rev. # 79547)

General Principles

A "reasonable excuse" can be a full defence for offences that explicitly require the absence of a reasonable excuse.[1]

Offences that are subject to a reasonable excuse defence include:

Under the heading of "Defects and Objections", s. 794 states:

No need to negative exception, etc.

794 (1) No exception, exemption, proviso, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information.

Burden of proving exception, etc.

(2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information.
R.S., c. C-34, s. 730.

CCC


Note up: 794(1) and (2)

By function of s. 794, the persuasive burden rests on the defence to establish any reasonable excuse and is not on the Crown.[2]

  1. for example many offences include the phrase "without reasonable excuse"
  2. R v Goleski, 2014 BCCA 80 (CanLII), 307 CCC (3d) 1, per Frankel JA

See Also

Self-Defence and Defence of Another

This page was last substantively updated or reviewed June 2021. (Rev. # 79547)

General Principles

Self-defence is the right in certain circumstances to respond to force, or threats of force, with force in order to stop the attacker/victim.[1] The attacker/victim is the "author of his or her own deserts”[2]

The defence is a form of justification.[3] Unlike excuses, a justification will not focus on the "human frailties" of the accused. It will render the acts morally acceptable.[4]

Self-defence is entirely codified and does not have application in the common law.[5]

Burden

Once the defence is raised the crown must prove the unavailability of the defence beyond a reasonable doubt.[6]

It is not necessary that the accused prove that there was no reasonable way of withdrawing or retreating from the situation.[7]

Evidence

Good character evidence of the victim will often be relevant and admissible.

Evidence of the victim's "peaceful disposition" is admissible as part of the Crown's case. [8]

Retrospectivity

There is some division on whether the March 11, 2013 amendments apply retrospectively on offences occurring prior to the date of the amendment.[9] In Ontario, s. 34 is not retrospective.[10]

Appellate Review

Findings of a trial judge on reasonableness of the use of force is afforded deference.[11]

  1. R v Ryan, 2013 SCC 3 (CanLII), [2013] 1 SCR 14, per LeBel and Cromwell JJ, at para 20
  2. Ryan, ibid., at para 20
  3. Ryan, ibid., at para 24
  4. Ryan, ibid., at para 24
  5. Ryan, ibid., at para 22
  6. R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J
  7. R v Watson, 2010 ONSC 6153 (CanLII), per Lederer J
  8. R v Krasniqi, 2012 ONCA 561 (CanLII), 291 CCC (3d) 236, per LaForme JA, at paras 60 to 66
  9. Not retrospective:
    R v Evans, 2013 BCSC 462 (CanLII), 278 CRR (2d) 228, per Fisher J
    R v Wang, 2013 ONCJ 220 (CanLII), OJ No 1939, per Pringel J
    R v Simon, 2013 ABQB 303 (CanLII), 558 AR 384, per Moreau J
    R v Carriere, 2013 ABQB 645 (CanLII), 110 WCB (2d) 709, per Wakeling J
    R v Huth, 2013 BCSC 2086 (CanLII), BCJ No 2086, per Macaulay J
    Retrospective:
    R v Pankiw, 2014 CanLII 1391 (SK PC), per Labach J
    R v LAOS, 2013 BCPC 166 (CanLII), BCJ No 1418, per Brooks J
    R v Caswell, 2013 SKPC 114 (CanLII), 421 Sask R 312, per Morgan J
    R v Hunter, 2013 NWTSC 79 (CanLII), 109 WCB (2d) 657, per Shaner J
  10. Ont.:
    R v Bengy, 2015 ONCA 397 (CanLII), 325 CCC (3d) 22, per Hourigan JA
    cf. R v Trudell, 2013 ONSC 6092 (CanLII), OJ No 4412, per Gorman J
    and R v Pandurevic, 2013 ONSC 2978 (CanLII), 298 CCC (3d) 504, per MacDonnell J
  11. R v Met, 2014 ABCA 157 (CanLII), per curiam, at para 19
    R v Abdulle, 2014 ABCA 52 (CanLII), 569 AR 142, per curiam, at para 8

Requirements

The current test for a defence of self-defence is set out in s. 34:

Defence — use or threat of force

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.

[omitted (2)]

No defence

(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.

R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F); 2012, c. 9, s. 2.

CCC


Note up: 34(1) and (3)

The test in s. 34 requires three elements:[1]

  1. Reasonable Belief (s. 34(1)(a)): "the accused must reasonably believe that force or threat of force is being used against him or someone else";
  2. Defensive Purpose (s. 34(1)(b)): "the subjective purpose for responding to the threat must be to protect oneself or others; and"
  3. Reasonable Response (s. 34(1)(c)): "the act committed must be objectively reasonable in the circumstances".
Objective Elements

When considering the objective component to the defence, "the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection".[2]

Air of Reality

The court cannot consider a defence under s. 34 unless there is an air-of-reality to the claim.[3]

  1. R v Cunha, 2016 ONCA 491 (CanLII), 337 CCC (3d) 7, per Lauwers JA, at para 6
    R v Bengy, 2015 ONCA 397 (CanLII), 325 CCC (3d) 22, per Hourigan JA, at para 28
    R v Cormier, 2017 NBCA 10 (CanLII), 348 CCC (3d) 97, per Richard and Baird JJ, at para 40
  2. Cunha, supra, at para 7
    R v Mohamed, 2014 ONCA 442 (CanLII), 310 CCC (3d) 123, per Rouleau JA, at para 29
  3. R v Sylvester, 2020 ABQB 27 (CanLII), per Yamauchi J, at para 235
    see also Air of Reality

First Element: Belief that Force or Threats

This first element requires that the accused had a subjective belief on reasonable grounds that the attacker posed a threat of force and that this belief was reasonable.[1] Absent "reasonable grounds" the defence cannot be "triggered".[2]

  1. R v Sylvester, 2020 ABQB 27 (CanLII), per Yamauchi J, at para 244
    Khill at paras 44 to 45
  2. Khill at para 44

Mistake of Fact

The defence can still be invoked even where there is a reasonable mistake of fact.[1] This could include a reasonable belief that the victim was armed.[2] Before the defence can be put to the jury, the judge must be satisfied that the evidence passes the threshold test requiring that "there is evidence upon which a jury acting reasonably could conclude that the accused reasonably believed he was about to be attacked and that this belief was reasonable in the circumstances".[3]

Self-defence is available where the accused was mistaken with respect to the "apprehension of the degree of danger and the nature and degree of the force necessary to defend himself".[4] The mistaken belief, however, must be reasonable.[5]

The trier-of-fact must not "weigh to a nicety" the exact measure of the accused's actions.[6]

The is to be expected that the victim and accused "in the heat of the moment, [view] the scene from different perspectives and benefiting from different information" can come to "reasonable and objectively supported" conclusions that are different. [7]

The assessment of s. 34(2) is an "inherently contextual exercise".[8]

Jury Instructions

Where the trial is before a jury, the judge should give a "Baxter instruction" explaining how the accused "cannot be expected to weigh to a nicety, the exact measure of necessary defensive action"..[9]

A failure to give a "Baxter instruction" is am error of law. However, such an error, on its own is not usually reverseable.[10]

  1. R v Cunha, 2016 ONCA 491 (CanLII), 337 CCC (3d) 7, per Lauwers JA, at para 8
  2. Cunha, ibid., at para 8
  3. Cunha, ibid., at para 8
    R v Currie, 2002 CanLII 44973 (ON CA), 166 CCC (3d) 190, per Charron JA
  4. R v Richter, 2014 BCCA 244 (CanLII), 314 CCC (3d) 543, per Willcock JA, at para 42
  5. Richter, ibid., at para 42
    R v Szczerbaniwicz, 2010 SCC 15 (CanLII), [2010] 1 SCR 455, per Abella J, at and 21 paras 20 and 21{{{3}}}
  6. R v Baxter, 1975 CanLII 1510, 27 CCC (2d) 96, per Martin JA, at p. 111
    R v Kong, 2005 ABCA 255 (CanLII), 200 CCC (3d) 19, per Fraser JA appealed to 2006 SCC 40 (CanLII), per Bastarache J
    R v Mohamed, 2014 ONCA 442 (CanLII), 310 CCC (3d) 123, per Rouleau JA, at para 29 citing Paciocco ("those in peril, or even in situations of perceived peril, do not have time for full reflection and that errors in interpretation and judgment will be made")
    R v Hebert, 1996 CanLII 202 (SCC), [1996] 2 SCR 272, per Cory, at para 18
    R v Cunha, 2016 ONCA 491 (CanLII), 337 CCC (3d) 7, per Lauwers JA, at para 7
  7. Mohamed, ibid., at para 31
  8. R v Paul, 2020 ONCA 259 (CanLII), per Haverson Young JA, at para 42
    R v Khill, 2020 ONCA 151 (CanLII), 60 CR (7th) 233, per Doherty JA, at para 60
  9. R v Gabriel, 2018 NSCA 60 (CanLII), per Fichaud JA, at para 58
  10. R v DS, 2017 ONCA 38 (CanLII), 345 CCC (3d) 1, per Watt JA, at paras 118 to 119

Second Element: Purpose of Force

The second element requires that the accused's subjective intention to use force was exclusively for the purpose of defence.[1] In other words it can be seen as the "motive" for the act.[2]

Any use of force for a purpose other than to repel force will not be lawful.[3] You cannot use "self-defence" as a means to cause harm to someone.[4] The defence will not apply where there is an ulterior motive such as revenge, discipline or desire to control.[5]

Time to Process and Evaluate

The judge should not require the accused to accurately process and evaluate threats in a matter of seconds.[6] The situation is not to be weighed to a "nicety".[7]

  1. R v Sylvester, 2020 ABQB 27 (CanLII), per Yamauchi J, at para 252
  2. Khill at par 54
  3. R v Parker, 2013 ONCJ 195 (CanLII), 107 WCB (2d) 10, per Paciocco J, at para 35
  4. R v Flood, 2005 CanLII 28422 (ON CA), [2005] OJ No 3418, per Feldman JA, at para 32 (“you can’t use self-defence as a cloak or means to injure someone.”)
  5. Sylvester, supra, at para 252
    Khill at para 54
  6. R v RS, 2019 ONCA 832 (CanLII), per Nordheimer J, at para 35
  7. RS, ibid., at para 36

Obligation to Retreat

When the accused is alleged to have defended himself or other occupants in his home, he is not obliged to retreat.[1] In these circumstances, a failure to retreat is not a factor in s. 34(2) analysis.[2] A jury is not permitted "to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence.”[3]

The availability of retreat and failure to do so is not a "categorical" exclusion from self-defence.[4] Instead, the option to retreat is a "very relevant consideration" to determine whether there the accused had no other option but to defend himself.[5]

  1. R v Cunha, 2016 ONCA 491 (CanLII), 337 CCC (3d) 7, per Lauwers JA, at para 9
    R v Forde, 2011 ONCA 592 (CanLII), 277 CCC (3d) 1, per LaForme JA, at paras 42, 43, 55
    R v Docherty, 2012 ONCA 784 (CanLII), 292 CCC (3d) 465, per Sharpe JA, at para 21
  2. Forde, supra, at paras 54 to 55
    Docherty, supra, at paras 70 to 71
  3. Cunha, supra, at para 9
    Forde, supra, at para 55
  4. R v Abdalla, 2006 BCCA 210 (CanLII), 225 BCAC 118, per Hall JA, at para 23
    R v Richter, 2014 BCCA 244 (CanLII), 314 CCC (3d) 543, per Willcock JA
  5. Abdalla, supra, at para 24

Impairment

It is not appropriate to consider the level of the accused's impairment in determining whether the force used might have been considered necessary by the accused."[1] Nor is impairment relevant to whether "the accused reasonably believed himself to have been assaulted or under a threat of assault" or the amount of force necessary to address the threat.[2]

Intoxication affects the subjective perception of the accused. By contrast, the objective considerations assumes a sober person is facing the threat of force.[3]

Self-induced intoxication does not apply when considering the effect of diminished intelligence or capacity on the reasonableness standard.[4]

  1. R v Richter, 2014 BCCA 244 (CanLII), 314 CCC (3d) 543, per Willcock JA, at paras 41, 44
  2. Richter, ibid., at para 44
  3. R v Reilly, 1984 CanLII 83 (SCC), [1984] 2 SCR 396, per Ritchie J, at p. 405
    R v Filli, 2017 ONSC 2883 (CanLII), per Forestell J, at para 160
  4. Richter, ibid., at para 43

Third Element: Reasonableness of Circumstances

Once the first two requirements are made out, the third requirement of "reasonable response" is informed by the non-exhaustive list of factors found in s. 34(2).[1]

34
[omitted (1)]

Factors

(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.

[omitted (3)]
R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F); 2012, c. 9, s. 2.

CCC


Note up: 34(2)

Objective and Subjective Test

The test on the third requirement is not solely an objective test.[2] The trier-of-fact should consider "how the accused perceived the relevant facts and whether that perception was reasonable".[3]

The Courts must consider whether the accused "actually apprehended the risk of death or grievous bodily harm" and then consider whether that apprehension is "normatively justified".[4]

Relevant circumstances include a mistaken belief held by the accused.[5]

Factor found in s. 34(2)(f) specifically codifies the decision of R v Lavallee, [1990] 1 SCR 852.[6]

Proportionality

Proportionality is not a necessary element, rather it is a factor to consider in the reasonableness analysis.[7]

This will include consideration of whether the accused reasonably believed that he could not otherwise preserve himself from harm.[8]

Personal Characteristics

In consideration of the objective factors, it is permissible, but not always necessary, to consider the accused's individual personality traits, including diminished intellectual capacity.[9] However, too much emphasis on personal traits would improperly conflate the subjective and objective elements of analysis.[10]

  1. R v Bengy, 2015 ONCA 397 (CanLII), 325 CCC (3d) 22, per Hourigan JA, at para 29
    R v Khill, 2020 ONCA 151 (CanLII), 60 CR (7th) 233, per Doherty JA, at para 42
  2. R v Poucette, 2021 ABCA 157 (CanLII), per curiam, at para 35
  3. R v Petel, 1994 CanLII 133 (SCC), [1994] 1 SCR 3, per Lamer CJ, at pp. 12-13
    R v Craig, 2011 ONCA 142 (CanLII), 269 CCC (3d) 61, per curiam, at para 36
  4. Craig, ibid., at para 36
  5. Khill, supra, at para 58
    Poucette, supra, at para 35
  6. Khill, supra, at para 48
  7. R v Filli, 2017 ONSC 2883 (CanLII), per Forestell J, at para 162
    R v Levy, 2016 NSCA 45 (CanLII), 337 CCC (3d) 476, per Beveridge JA, at para 112
    R v Baxter, 1975 CanLII 1510, 27 CCC (2d) 96, per Martin JA
  8. R v Sylvester, 2020 ABQB 27 (CanLII), per Yamauchi J, at para 259
  9. R v Barry, 2017 ONCA 17 (CanLII), 345 CCC (3d) 32, per Blair JA, at paras 72 to 73
  10. Barry, ibid., at para 73

Homicide

Self-defence under s. 34(2) (under the old rules) is a full justification for an intentional killing. It is to be considered in situations of "last resort" where a jury would accept that "the accused believed, on reasonable grounds, that his own safety and survival depending on killing the victim at that moment."[1]

Existence of an assault is not necessary to engage s. 34(2), it is only a question of whether the accused reasonably believe, in the circumstances, that he was being unlawfully assaulted.[2]

  1. R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J, at para 124
  2. Cinous, ibid., at para 107

Character Evidence of Violence

See also: Character Evidence

Pre 2013 Amendments

Case Digests

See Also

Self-Defence and Defence of Another (Pre-Amendments 2013)

General Principles

See also: Self-Defence and Defence of Another

On March 11, 2013 Bill C-26, Citizen’s Arrest and Self-defence Act came into force. Prior to that date, the Code provisions on self-defence stated as follows:

Self-defence against unprovoked assault

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.

Extent of justification

(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.

CCC


Note up: 34(1) and (2)

Self-defence in case of aggression

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.

CCC


Note up: 35

Provocation

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

CCC


Note up: 36

Preventing assault

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.

Extent of justification

(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.

CCC


Note up: 37(1) and (2)

The difference between s. 34(2) and 35 are that s. 35 are restricted to cases where the accused is the initial aggressor by provocation or assault. Section 35 also does not explicitly restrict the use of force in cases of "unlawful assault" and s. 35 requires that the accused must have "declined further conflict and quitted or retreated from it as far as it was feasable to do so".[1]

  1. R v Mohamed, 2014 ONCA 442 (CanLII), 310 CCC (3d) 123, per Rouleau JA (3:0), at para 34

Proof of Defence

For all the offences the burden is on the Crown to prove beyond a reasonable doubt the defence does not apply[1]

  1. R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J
    R v Ryan, 2011 NLCA 9 (CanLII), 944 APR 124, per Harrington JA (3:0) - in relation to s.34(2)

Unprovoked assault: s.34(1)

The crown has the burden of disproving[1] at least one of the elements of the defence beyond a reasonable doubt:[2]

  1. accused made no provocations
  2. assault by the victim on the defendant
  3. no intention by the defendant to cause death or grievous bodily harm at time of assault
  4. no more force than is necessary to self-defence
  1. R v Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3, per McLachlin CJ and Bastarache J, at para 39
  2. see R v CJO, 2005 CanLII 43518 (ONSC), per Tulloch J, at para 21
    R v Grandin, 2001 BCCA 340 (CanLII), 154 CCC (3d) 408, per Finch JA (3:0), at para 35
    R v Bailey, 2010 BCCA 167 (CanLII), 253 CCC (3d) 509, per Saunders JA (3:0), at para 26

Assault Causing: s.34(2)

The crown has the burden of disproving[1]

  1. the accused was
    1. actually assaulted, or
    2. the accused
      1. subjectively apprehended he was being assaulted;
      2. it was reasonable to believe he was being assaulted; and
      3. the assault was reasonably apprehended would be unlawful.
  2. the accused caused death or grievous bodily harm;
  3. the caused result was done in repelling an assault;
  4. the accused was under a reasonable apprehension of death or grievous bodily harm by the initial assailant;
  5. the accused believed on, reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm.
  6. the accused apprehended imminent danger

Where

  1. R v Pétel, 1994 CanLII 133 (SCC), [1994] 1 SCR 3, per Lamer CJ ("(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.")
    see also R v Mohamed, 2014 ONCA 442 (CanLII), 310 CCC (3d) 123, per Rouleau JA (3:0), at para 16

Provoked assault: s.35

  1. the accused assaulted a person
  2. the accused did not assault intending to cause death or grievous bodily harm or has not provoked the assault
  3. the accused used force where:
    1. he was under a reasonable apprehension of death or grievous bodily harm from the person assaulted and
    2. the accused had a reasonable belief that the assault was necessary to preserve himself from death or grievous bodily harm.
  4. the accused, at any time before the necessity of preserving himself, did not endeavour to cause death or grievous bodily harm;
  5. the accused avoided conflict as far as it was feasible before the necessity arose.

Preventing assault: s.37

The crown has the burden of disproving at least one of the elements of the defence beyond a reasonable doubt:[1]

  1. force was for the purpose of preventing an assault on self or person under his protection.[2]
  2. no more force than necessary to prevent assault or repetition having regard to the nature of assault to be prevented[3]
  3. the force was proportionate to the danger threatened.[4]
  1. R v McIntosh, 1995 CanLII 124 (SCC), 95 CCC (3d) 481, per Lamer CJ
    R v Grandin, 2001 BCCA 340 (CanLII), 154 CCC (3d) 408, per Finch JA (3:0), at para 36
  2. R v Shannon, 1981 CanLII 332 (BC CA), 59 CCC (2d) 229, per MacDonald JA
    R v Thomas, 2002 BCCA 612 (CanLII), 170 CCC (3d) 81, per Rowles JA (3:0)
  3. R v McIntosh, 1995 CanLII 124 (SCC), 95 CCC (3d) 481, per Lamer CJ at 44
  4. McIntosh, ibid. at 44

Application

Unprovoked: s. 34(1)

Section s.34(1) of the Criminal Code justifies the use of repelling force by force if the force he used was not intended to cause death or grievous bodily harm and was no more than was necessary to enable him to defend himself. The onus is on the Crown to prove beyond a reasonable doubt that self-defence under s.34 is not available to the accused. [1]

Any provocation eliminates the use of this defence.[2]

The fact that the accused does not retreat from a confrontation does not preclude him from relying on s.34.[3] Likewise, an accused does not need to be reduced to a state of frenzy [4] and the accused does not need to rely upon detached reflection of his options where circumstances do not allow.[5]

It is not necessary that an assault actually occur. The accused must simply have a reasonable belief that he is about to be unlawfully assaulted.[6]

  1. R v Latour, 1950 CanLII 12, [1951] SCR 19, per Fauteux J
    R v Nadeau, 1984 CanLII 28 (SCC), [1984] 2 SCR 570, per Lamer J
    R v Westhaver, 1992 CanLII 2545 (NSCA), [1992] NSJ 511 (NSCA), per Freeman JA
  2. R v Nelson, 1992 CanLII 2782 (ON CA), 71 CCC (3d) 449, per Morden ACJ (‟Self defence is not available where the accused provokes the attack”)
  3. R v Deegan, 1979 ABCA 198 (CanLII), 17 AR 187, per Harradence JA
    R v Westhaver, 1992 CanLII 2545 (NSCA), 119 NSR (2d) 171, per Freeman JA (3:0) , at para 8
  4. R v Antley, 1963 CanLII 258 (ON CA), 2 CCC 142, per Roach JA (2:1)
  5. R v Kandola, 1993 CanLII 774 (BC C.A.), 80 CCC (3d) 481, per Wood JA (3:0)
  6. R v Kong, 2005 ABCA 255 (CanLII), 200 CCC (3d) 19, per Fraser JA (2:1), at para 186 aff’d 2006 SCC 40 (CanLII), per Bastarache J

No Intention to Cause Bodily Harm

Where the evidence raises the issue of whether the accused intended to cause bodily harm 'the judge must instruct the jury on both s. 34(1) and (2)[1]

  1. R v Scotney, 2011 ONCA 251 (CanLII), 277 CCC (3d) 186, per Feldman JA (3:0)

When Causing: s.34(2)

Section 34(2) is available regardless of whether the assault was provoked.[1]

The defence is available even where there was an intention to cause GBH or death.[2]

There is no requirement that the force be no more than is necessary to defend against the assault.[3]

Though not explicitly stated in the s. 34(2)(a), a further requirement that the accused have apprehend imminent danger at the time of the assault has been read into the defence.[4]

All elements of this defence require that the jury determine the perceptions of the accused at the time and whether those perceptions were reasonable.[5]

  1. R v McIntosh, 1995 CanLII 124 (SCC), [1995] 1 SCR 686, per Lamer CJ (5:4), at para 42
  2. R v Tromblley, 1998 CanLII 7128 (ON CA), 126 CCC (3d) 495, per Carthy JA (2:1) aff'd 1999 CanLII 681 (SCC), [1999] 1 SCR 757, per Lamer CJ
  3. R v Siu, 1992 CanLII 1014 (BCCA), 71 CCC (3d) 197 at 209 (BCCA), per curiam (3:0)
    R v Pintar, 1996 CanLII 712 (ON CA), 110 CCC (3d) 402, per Moldaver JA (3:0)
  4. see R v Reilly, 1984 CanLII 83 (SCC), 15 CCC (3d) 1, per Ritchie J (6:0)
    R v Baxter, 1975 CanLII 1510 (ON CA), 33 CRNS 22, 27 CCC (2d) 96, per Martin JA
    R v Bogue, 1976 CanLII 871 (ON CA), 13 OR (2d) 272, 30 CCC (2d) 403, 70 DLR (3d) 603, per Howland CJ
  5. Petel, supra

Retreat

A person is not required to retreat from his home.[1]

  1. R v Forde, 2011 ONCA 592 (CanLII), 277 CCC (3d) 1, per LaForme JA (3:0)
    R v Docherty, 2012 ONCA 784 (CanLII), 292 CCC (3d) 465, per Sharpe JA

Proportionality

An accused defending himself against a reasonably apprehended attack expected to weigh his response "to a nicety" when dealing with an unprovoked assault under section 34 (1) or (2). [1] in a jury trial instructions on this issue are known as "Baxter instructions".[2]

Failure to give Baxter instructions is an error of law.[3]

  1. R v Onigbinde, 2010 ONCA 56 (CanLII), 251 CCC (3d) 15, per Armstrong JA
  2. R v Scotney, 2011 ONCA 251 (CanLII), 277 CCC (3d) 186, per Feldman JA (3:0)
  3. Scotney, supra, at para 33

Preventing: s.35

Section 35 requires the use of force (a) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and (b) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm and (c)must have “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.” [1]

Section 35 does not require the accused to be responding to an "unlawful" assault.[2]

  1. R v Mohamed, 2014 ONCA 442 (CanLII), 310 CCC (3d) 123, per Rouleau JA (3:0), at para 50
  2. Mohamed, ibid., at paras 39 to 45 - distinguishes between "assault" and "unlawful assault"

Preventing: s.37

Everyone may use force to defend themselves or someone in their protection.

This right does not extend to retaliation where the accused's self-preservation is not in peril.[1]

  1. R v Brisson, 1982 CanLII 196 (SCC), [1982] 2 SCR 227

Grievous Bodily Harm

Grievous Bodily Harm (GBH) is "either permanent or dangerous; if it be such as seriously to interfere with comfort or health it is sufficient"[1]

GBH can include sexual assault.[2]

  1. R v Martineau, 1988 ABCA 274 (CanLII), [1988] AJ No 716, per Laycraft JA upheld in 1990 CanLII 80 (SCC), [1990] 2 SCR 633, per Lamer CJ, at paras 52, 53 citing R v Bottrell, 1981 CanLII 352 (BC CA), 62 CCC (2d) 45, per Anderson JA (2:1) and others
  2. R v XJ, 2012 ABCA 69 (CanLII), 524 AR 123, per curiam (3:0), at para 11

Proportionality: "No more than reasonably necessary"

The words "no more force than is necessary" can be equated with the requirement of the force being "reasonable in all the circumstances" [1] Force that is "clearly disproportionate to what was required under the circumstances" must fail.[2]

Proportionality has two aspects. The force must be considered reasonable in all the circumstances including the accused's subjective belief as to the nature of the harm or danger, but the objective component of the defence is also required.[3]

Seriousness of an injury does not necessarily mean that the force used was excessive.[4]

Proportionality must be considered in light the "heat of the moment" where the accused is "filled with a combination of adrenalin and fear" such that he is not expected to always react both quickly and "measured to perfection to the nature of the risk of danger posed."[5]

  1. R v Gunning, 2005 SCC 27 (CanLII), [2005] 1 SCR 627, per Charron J (9:0), at para 25
  2. R v McKay, 2009 MBCA 53 (CanLII), per Chartier JA (3:0) - in relation to 41(1)
  3. R v Szcerbaniwicz, 2010 SCC 15 (CanLII), [2010] 1 SCR 455, per Abella J (5:2), at paras 20 and 21
    R v Philpott, 2011 NLTD 6 (CanLII), per LeBlanc J at 42
    R v Baxter, 1975 CanLII 1510 (ON CA), [1975] 27 CCC (2d) 96, per Martin JA, at p. 111
  4. R v Marky, 1976 ALTASCAD 125 (CanLII), 6 WWR 390, per McGillivray JA
  5. R v Heydari, 2014 ONSC 2350 (CanLII), per Campbell J, at para 6
    See also R v Antley, 1963 CanLII 258 (ON CA), 1 OR 545 (CA), per Roach JA (2:1), at pp. 549-550
    Baxter, supra, at p. 111
    R v Hebert, 1996 CanLII 202 (SCC), [1996] 2 SCR 272, per Cory J (5:0), at p. 281

See Also

Defence of Property

This page was last substantively updated or reviewed January 2015. (Rev. # 79547)

General Principles

Defence — 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.
No defence

(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.

No defence

(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.
R.S., 1985, c. C-46, s. 35; 2012, c. 9, s. 2.

CCC


Note up: 35(1), (2) and (3)

2013 Amendments

Use of Force

A property owner is permitted to use reasonable force to remove someone who is trespassing.[1]

The force must be "no more force than is reasonably necessary".[2] It must be necessary for the lawful purpose of removing a trespasser.[3]

  1. R v Lauda, 1999 CanLII 970 (ON CA), 136 CCC (3d) 358, per Moldaver JA, at para 65 ("persons in peaceable possession of a dwelling-house or real property (which I take to include unoccupied lands) are entitled to use reasonable force to prevent trespassing and to remove trespassers from their property.")
    R v Kephart and Oliver, 1988 ABCA 325 (CanLII), 44 CCC (3d) 97, per McClung JA, at para 9
  2. R v Assante-Mensah, 2003 SCC 38 (CanLII), [2003] 2 SCR 3, per Binnie J
  3. MacDonald v Hees, 1974 CanLII 1289 (NS SC), [1974] N.S.J. 356, per Cowan CJ ("“no greater than could possibly be considered by any reasonable man to be requisite for the purpose of removing" the trespasser)

See Also

Defence of Property (Pre-2013 Amendments)

Defence of Personal Property (Pre-2013 Amendments)

Defence of personal property

38 (1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified

(a) in preventing a trespasser from taking it, or
(b) in taking it from a trespasser who has taken it,

if he does not strike or cause bodily harm to the trespasser.

Assault by trespasser

(2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.
R.S., c. C-34, s. 38.

CCC


Note up: 38(1) and (2)

Defence with claim of right

39 (1) Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary.

Defence without claim of right

(2) Every one who is in peaceable possession of personal property, but does not claim it as of right or does not act under the authority of a person who claims it as of right, is not justified or protected from criminal responsibility for defending his possession against a person who is entitled by law to possession of it.
R.S., c. C-34, s. 39.

CCC


Note up: 39(1) and (2)

Under s. 39, the owner and persons acting for the owner of personal property may defend the possession of that property as long as there is "no more force than is necessary". In determining if there was "no more force than is necessary" requires the judge to consider all the circumstances such as the accused's state of mind and belief that force was necessary. Factors to consider include:[1]

  1. nature of the property
  2. the value (financial and sentimental) of the property
  3. risk of harm to the property
  4. alternative options to accused
  1. R v Szczerbaniwicz, 2008 CM 2008 (CanLII) per Lamont CJ upheld at 2010 SCC 15 (CanLII)}}, per Abella J

Trespassing and Unlawful entry (Pre-2013 Amendments)

Defence of dwelling

40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.
R.S., c. C-34, s. 40.

CCC


Note up: 40

Defence of house or real property

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.

Assault by trespasser

(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.
R.S., c. C-34, s. 41.

CCC


Note up: 41(1) and (2)

The defence of house or real property is available where:

  1. Where a homeowner has reasonable grounds to believe that the victim was a trespasser[1]
  2. the trespasser had reasonable opportunity to withdraw after they ought to have realized they were trespassing,
  3. the trespasser did not withdraw
  4. the threat of force or actual force must not be more than was reasonable under the circumstances
  5. the threat of force or actual force was no more than what the accused reasonably believed was necessary to remove the trespasser

A trespasser can include the police who are not lawfully in the dwelling house.[2]

A dwelling house includes hallways and stairwells,[3] as well as stores.[4]

There is no obligation to retreat when defending a dwelling house.[5]

A person who is lawfully on a premises, but is told to leave, must "be given a reasonable opportunity to leave the property before actual force can be used."[6]

Any force used that was above and beyond force necessary to defend property is criminally liable.[7]

  1. R v Keating, 1992 CanLII 2511 (NS CA), 76 CCC 570, per Hallett J
    R v Krzychowiec, 2004 NSPC 60 (CanLII), 723 APR 14, per Gibson J
  2. R v Kephart and Oliver, 1988 ABCA 325 (CanLII), [1988] 44 CCC (3d) 97, per McClung JA
  3. Krzychowiec
  4. R v Lee, 2003 ABPC 115 (CanLII), 336 AR 189, per Semenuk J
  5. R v Clark, 1983 ABCA 65 (CanLII), [1983] 5 CCC (3d) 218, per McGillivray J
  6. R v Doiron, 2013 NBCA 31 (CanLII), 1050 APR 22, per Richard JA, at para 36
  7. see s.26
    R v Figueira, 1981 CanLII 3151 (ON CA), 63 CCC (2d) 409 (ONCA), per Martin JA
    contra R v Paquin, 1983 CanLII 2386 (SK QB), Sask R 78 (SKQB), per Vancise J

Cases

See Also

Officially Induced Error

This page was last substantively updated or reviewed January 2015. (Rev. # 79547)

General Principles

A valid excuse for violating the law is on the basis of an officially induced error of law. [1] The defence arises where the accused is given advice in error that the accused relies upon in doing the criminal act.

An officially induced error is available as a defence to prevent morally blameless individuals, who believe they are acting in a lawful manner, from being convicted.[2]

This is an exception to the principle that ignorance of the law is no excuse.[3]

This defence cannot be invoked for bad advice from court-house duty counsel as legal aid is not part of the government.[4]

Purpose

The purpose of the defence is to prevent injustices where the “state approving conduct with one hand and seeking to bring criminal sanction for that conduct with the other”[5]

The defence arises in part out of the overly complex nature of regulation. [6]

Remedy

A successful application will result in a stay of proceedings.[7]

Elements

The elements that must be proven are:[8]

  1. The error was one of law or mixed law and fact
  2. The accused considered the legal consequences of her actions
  3. The advice obtained came from an appropriate official
  4. The advice was reasonable in the circumstances
  5. The advice obtained must be erroneous
  6. The accused must demonstrate reliance on the official advice

Each element must be proven on a balance of probabilities by the accused.[9]

  1. R v Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 SCR 55, per Lamer CJ, at paras 28 to 37
  2. Jorgensen, ibid.
    R v Halloran, 2010 ONSC 4321 (CanLII), 99 MVR (5th) 257, per Sproat J
  3. Jorgensen, supra
  4. R v Pea, 2008 CanLII 89824 (ON CA), 79 WCB (2d) 262, per Gillese JA
  5. Jorgensen, supra, at para 30
  6. Jorgensen, supra, at para 25
    Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc., 2006 SCC 12 (CanLII), [2006] 1 SCR 420, per LeBel J at 24
  7. Jorgensen, supra
  8. Jorgensen, supra, at paras 28 to 32
  9. Jorgensen, supra

Case Digests

See Also

Acting in Authority

This page was last substantively updated or reviewed August 2021. (Rev. # 79547)

General Principles

See also: Peace Officers

It is a constitutional principle that all authorities, from high office to constable, are subject to the "ordinary law of the land".[1]

The police have no common law authority to break the law in order to achieve a greater good.[2]

Sections 25 to 31 concern the "Protection of Persons Administering and Enforcing the Law".

Protection of persons acting under authority

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.

Idem

(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.

When not protected

(3) Subject to subsections (4) [protection of persons acting under authority – when protected] and (5) [protection of persons acting under authority – power in case of escape from penitentiary], a person is not justified for the purposes of subsection (1) [protection of persons acting under authority] in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

When protected

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

(a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested;
(b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant;
(c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less violent manner.
Power in case of escape from penitentiary

(5) A peace officer is justified in using force that is intended or is likely to cause death or grievous bodily harm against an inmate who is escaping from a penitentiary within the meaning of subsection 2(1) of the Corrections and Conditional Release Act, if

(a) the peace officer believes on reasonable grounds that any of the inmates of the penitentiary poses a threat of death or grievous bodily harm to the peace officer or any other person; and
(b) the escape cannot be prevented by reasonable means in a less violent manner.


R.S., 1985, c. C-46, s. 25; 1994, c. 12, s. 1.
[annotation(s) added]

CCC


Note up: 25(1), (2), (3), (4), and (5)


Defined terms: "bodily harm" (s. 2), "peace officer" (s. 2), "person" (s. 2), and "public officer" (s. 2)

Section 25(1) justifies certain acts by a protected class of persons including peace officers to use force "to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances."[3]

The regime of s. 25(1) is constrained by the "principles of proportionality, necessity and reasonableness".[4]

Burden

This section provides a statutory defence to a criminal charge. There is an evidential burden on the accused to show evidence that the defence is in issue (or put differently, where there is an "air of reality").[5]

Where an air of reality is raised, the Crown must negate the defence beyond a reasonable doubt.[6]

Level of Precision

Given the dangerous and demanding work of police, the conduct should not be "judged against a standard of perfection".[7]

The rule against weighing to a "nicety" should not be equated with "not measuring it at all".[8] Nor should it be used to change the test from an objective one to a modified objective test or a subjective test.[9]

Elements of Consideration

When considering use of force by a police officer, the court should consider that:[10]

  1. The police officer is required or authorized by law to perform an action in the administration or enforcement of the law.
  2. The police officer acts on reasonable grounds in performing the action he or she is required or authorized by law to perform.
  3. The police officer does not use unnecessary force.

For s. 25 to apply, there must be reasonable doubt on all three elements.[11]

In Civil Liability Cases

Section 25 is meant only to protect peace officers from civil liability in cases where there is reasonable mistake of fact.[12] It also is not intended to provide any extra powers to police that do not already exist.[13]

Mistake of Law

Section 25 does not protect against mistake of law.[14]

Amount of Force

The amount of force must be considered in the "circumstances as they existed at the time the force was used".[15] The amount should not be "measured ... with exactitude".[16]

The amount of force is measured objectively.[17]

Negligence

The authorization permitted under s. 25(1) does not apply where there the person in authority is acting negligently.[18]

Honest But Mistaken Belief

Reliance on honest but mistaken belief in lawful authority can only be used where the conduct is supported by reasonable grounds.[19]

Excessive force

26 Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.
R.S., c. C-34, s. 26.

CCC


Note up: 26

Use of force to prevent commission of offence

27 Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and
(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or
(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

R.S., c. C-34, s. 27.

CCC


Note up: 27

The protections provided by s. 27 are not limited to peace officers and can be applied to anyone using force.[20]

Deadly Force

The use of deadly force can be justified under s. 27 where the commission of the offence is "likely to cause immediate and serious injury".[21]

When considering the use of potential excessive force, the court should consider "the reasonable belief of the officer in all the circumstances as they existed at the time which belief must be justified by the facts at the time." The belief must be subjectively held as well as objectively reasonable.[22]

Peace Officers

Section 25(1) will protect a peace officer who performs an unlawful consent search who had "reasonable grounds" to believe they had consent and the error is a one of a "mistake of fact".[23]

  1. R v Campbell and Shirose, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J (9:0) ("...principle that everyone from the highest officers of the state to the constable on the beat is subject to the ordinary law of the land.")
  2. R v Brennan, 1989 CanLII 7169 (ON CA), 52 CCC (3d) 366, per Catzman JA, at p. 375
  3. R v Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, per LeBel J, at para 34
  4. Nasogaluak, ibid., at para 32
  5. R v Wilcox, 2015 ABPC 147 (CanLII), at para 113
  6. Wilcox, ibid. at para 113
  7. Nasogaluak, ibid., at para 35
  8. R v Partington, 2021 ABPC 220 (CanLII), at para 12
  9. Partington, ibid., at para 12
  10. Crampton v Walton, 2005 ABCA 81 (CanLII), {{{4}}}, at para 6
  11. Wilcox, supra
  12. Hudson v Brantford Police Services, 2001 CanLII 8594 (ON CA), 158 CCC (3d) 390, per Rosenberg JA (3:0), at para 24 ("s. 25(1) protects the officer from civil liability for reasonable mistakes of fact and authorizes the use of force")
  13. Crampton v Walton, supra
    R v Wilcox, 2015 ABPC 147 (CanLII), at para 111
  14. Hudson, supra
  15. R v Bottrell, 1981 CanLII 339 (BC CA), 60 CCC (2d) 211, per Anderson JA at p 218
  16. Bottrell, ibid. at p 218
  17. Partington, supra, at para 11
  18. Green v Lawrence, 1998 CanLII 19429 (MB CA), 127 CCC (3d) 416, per Huband JA
  19. R v Devereaux, 1996 CanLII 11047 (NL CA), 112 CCC (3d) 243, per Steele JA
  20. R v Hebert, 1996 CanLII 202 (SCC), [1996] 2 SCR 272, per Cory J
  21. R v Scopelliti, 1981 CanLII 1787 (ON CA), 63 CCC (2d) 481, per Martin JA
  22. R v Hannibal, 2003 BCPC 504 (CanLII), per Challenger J, at para 143
  23. Tymkin v Ewatski, 2014 MBCA 4 (CanLII), 306 CCC (3d) 24, per Chartier JA (2:1) leave to SCC denied

Aircraft

Use of force on board an aircraft

27.1 (1) Every person on an aircraft in flight is justified in using as much force as is reasonably necessary to prevent the commission of an offence against this Act or another Act of Parliament that the person believes on reasonable grounds, if it were committed, would be likely to cause immediate and serious injury to the aircraft or to any person or property therein.

Application of this section

(2) This section applies in respect of any aircraft in flight in Canadian airspace and in respect of any aircraft registered in Canada in accordance with the regulations made under the Aeronautics Act in flight outside Canadian airspace.
2004, c. 12, s. 2.

CCC


Note up: 27.1(1) and (2)

Breach of Peace

Preventing breach of peace

30 Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace.
R.S., c. C-34, s.

CCC


Note up: 30

Arrest for breach of peace

31 (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.

Giving person in charge

(2) Every peace officer is justified in receiving into custody any person who is given into his charge as having been a party to a breach of the peace by one who has, or who on reasonable grounds the peace officer believes has, witnessed the breach of the peace.

R.S., c. C-34, s. 31.

CCC


Note up: 31(1) and (2)

Deeming to Act Lawfully During Arrest and Detention

See also: Arrest Procedure

495 [arrest without warrant by peace officer]
[omitted (1) and (2)]

Consequences of arrest without warrant

(3) Notwithstanding subsection (2) [public interest exception to arrest power], a peace officer acting under subsection (1) [warrantless arrest power] is deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2) [public interest exception to arrest power].

R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.
[annotation(s) added]

CCC


Note up: 495(3)

498 [release by peace officer (warrantless arrest)]
[omitted (1), (1.01), (1.1) and (2)]

Consequences of non-release

(3) A peace officer who has arrested a person without a warrant, or who has been given the custody of a person arrested without a warrant, for an offence described in subsection (1) [release from custody – arrest without warrant], and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1) [release from custody – arrest without warrant].

R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble); 2019, c. 25, s. 213.
[annotation(s) added]

CCC


Note up: 498(3)

503 [taking person before justice after arrest]
[omitted (1), (1.1), (2), (2.1), (2.2), (2.3), (3), (3.1) and (4)]

Consequences of non-release

(5) Despite subsection (4) [release of person about to commit indictable offence], a peace officer having the custody of a person referred to in that subsection who does not release the person before the expiry of the time prescribed in paragraph (1)(a) [bring detainee to justice – if justice available] or (b) [bring detainee to justice – if justice not available] for taking the person before the justice shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or
(b) any other proceedings, unless in those proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (4) [release of person about to commit indictable offence].


R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble); 2019, c. 25, s. 217.
[annotation(s) added]

CCC


Note up: 503(5)

Section 495(3) should be construed to deny any defence for failure to comply with 495(2).[1]

Notably there is no similar deeming provision in relation to the obligations under s. 503 which requires the accused to be brought to a justice.

  1. R v Adams, 1972 CanLII 867 (SK CA), 2 WWR 371, per Culliton CJ

Surgical Operations

Surgical operations

45. Every one is protected from criminal responsibility for performing a surgical operation on any person for the benefit of that person if

(a) the operation is performed with reasonable care and skill; and
(b) it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circumstances of the case.

R.S., c. C-34, s. 45.

CCC


Note up: 45

See Also

Corrective Force

This page was last substantively updated or reviewed June 2021. (Rev. # 79547)

General Principles

Correction of child by force

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.
R.S., c. C-34, s. 43.

CCC


Note up: 43

Components of Section 43

This section sets out three requirements[1]

  1. The force must have been intended for corrective purposes.
  2. The child must have been capable of benefiting from the correction.
  3. The force used must have been objectively reasonable under the circumstances.

Section 43 is to be "strictly construed".[2]

Applicable Persons

This defence is available to teachers, parents, and persons acting as parents. This last category includes anyone who has assumed "all the obligations of parenthood".[3]

"pupil or child"

"Child" refers to a person under the age of majority.[4] A mentally disabled adult cannot be considered a child within the meaning of the section.[5]

A "pupil" refers to a child taking instruction.[6]

"schoolteacher"

A "school teacher" refers to a person who gives formal instruction in a children's school[7]

The term has been interpreted to include the principal.[8]

The first requirement implies that the actions of the child called for corrective action.

The meaning of capability of "benefiting from the correction" is a broad term and will take into account the accused's knowledge of the ability to learn and remember from the act.[9]

Factors

The factors to be considered include:[10]

  1. age and character of the child,
  2. nature of the issue calling for a correction,
  3. circumstances and gravity of the correction, any injuries, and
  4. the likely effect of the punishment on the child.

The "corrective" application for force means that there must be a corrective or educative purpose.[11] It must also "restrain or control" and not be for simply expressing disapproval.[12]

Corrective intent and anger are not mutually exclusive.[13] Anger is simply a factor to consider by the court. The determining issue is not whether the parents are "upset, distraught, frustrated, annoyed or angry" but rather whether the accused was able to "control" his anger or emotions.[14]

Where the child must benefit from the correction, it would not be reasonable to correct children under the age of 2 or those suffering from a learning disability.[15]

Reasonableness of the force used can include both the objective and subjective considerations when examining the nature of the activity being corrected, age and character of child, the likely effect of the punishment, degree of gravity of punishment, circumstances of the punishment, and injuries. [16]

Any punishment that endangers the life, limbs, health, or risks disfigurement will render the act unreasonable.[17]

The punishment does not have to come immediately after the act to be corrected as long as it is at the "next reasonable opportunity".[18]

Where a judge finds the method of correction to be used "unacceptable" then s. 43 cannot apply.[19]

At no time can the force be "degrading, inhuman, or harmful". The use of objects or the infliction of blows to the head are unreasonable.[20]

A teacher cannot use corporal punishment.[21] But they may apply reasonable force to remove a child from a classroom or secure compliance with instructions.[22]

An adult who carried a child to a step by his arm was found to be acting lawfully under s. 42.[23]

Constitutionality

Section 43 was found to be constitutional.[24]

  1. R v Gervin, 2012 MBQB 44 (CanLII), 274 Man R (2d) 240, per Midwinter J, at para 5
    see also R v Sinclair, 2008 MBCA 15 (CanLII), 229 CCC (3d) 485, per Scott CJ
  2. Ogg-Moss, ibid.
  3. Ogg-Moss v The Queen, 1984 CanLII 77 (SCC), [1984] 2 SCR 173, per Dickson J at 190
  4. Ogg-Moss, ibid.
  5. R v Nixon, 1984 CanLII 78 (SCC), [1984] 2 SCR 197, per Dickson J
    Ogg-Moss, ibid.
  6. Ogg-Moss, ibid.
  7. Ogg-Moss, ibid.
  8. R v McGrath, 2021 CanLII 7914 (NL PC), at para 31
  9. e.g. Ogg-Moss, ibid.
  10. R v BS, 2008 CanLII 10389 (ON SC), 58 CR (6th) 126, per Robertson J, at para 8
  11. Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, per McLachlin CJ
  12. Canadian Foundation for Children, Youth and the Law, ibid.
  13. BS, supra, at para 9
  14. e.g. R v TI, 2003 CanLII 49914 (ON CJ), [2003] OJ No 5940 (Ont. C.J.), per Feldman J citing R v Peterson, 1995 CanLII 7395 (ON SC), [1995] OJ No 1266 (Ont. Ct. Prov. Div), per Menzies J, at p. 15 (“it is unrealistic to assume that parents discipline their children, whatever the nature of the infraction, in a state of detached calm. Anger is part and parcel of correction of the child. What is relevant is not whether the parent is upset, distraught, frustrated, annoyed or angry, but whether the parent is in control of his or her anger or emotions”)
  15. Canadian Foundation for Children, Youth and the Law, supra
  16. R v Dupperon, 1984 CanLII 61 (SK CA), 16 CCC (3d) 453, per curiam
  17. Dupperon, ibid.
  18. R v Haberstock, 1970 CanLII 1046 (SK CA), (1971) 1 CCC (2d) 433, per Culliton CJ
  19. R v BT, 1985 ABCA 51 (CanLII), 19 CCC (3d) 156, per Laycraft CJ
  20. Canadian Foundation for Children, Youth and the Law, supra
  21. Canadian Foundation for Children, Youth and the Law, supra
  22. Canadian Foundation for Children, Youth and the Law, supra
  23. R v Catellier, 2011 MBQB 77 (CanLII), 263 Man R (2d) 304, per Bryk J
  24. Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, per McLachlin CJ

Person Standing in Place of a Parent

A counsellor who is tasked with supervising a mentally disabled adult does not stand in the place of a parent.[1]

  1. R v Nixon, 1984 CanLII 78 (SCC), [1984] 2 SCR 197, per Dickson J

Accident and Mistake

This page was last substantively updated or reviewed January 2018. (Rev. # 79547)

General Principles

The defences of accident or mistake will have different meaning depending on the context.

Generally, an accident is a "mishap or untoward event not expected or designed", or "unforeseen contingency or occurrence".[1]

Most typically accident means that the accused did not mean to perform the actus reus or that the consequences of the actus reus were unintended (ie. an error as to the mens rea).[2]

A claim of accident before a jury should be described as going to both the voluntariness of the actus reus as well mens rea of the offence.[3]

The effect in law is that the mens rea is not present. This is distinctive from mistake which occurs in “the realm of perception”.[4]

Burden

Once the accused establishes there is an "air of reality" to the defence of accident or mistake, the crown must disprove the availability of the defence beyond a reasonable doubt. [5]

General or Specific Intent Offences

The meaning of accident varies depending on the type of charge.[6] Where it is a specific intent offence, an accident relates to a denial of voluntariness of the act or denial of intention to cause the outcome. For a general intent offence, an accident requires that the act was unexpected and by chance that was not foreseeable. [7]

  1. R v Whitehorne, 2005 CanLII 34553 (NL PC), 32 CR (6th) 86, per Gorman J
    R v Hill, 1973 CanLII 36, [1975] 2 SCR 402, (1974) 14 CCC (2d) 505 (SCC), per Dickson J, at p. 510
  2. R v Tatton, 2014 ONCA 273 (CanLII), 10 CR (7th) 108, per Pardu JA, at para 24
    R v Mathisen, 2008 ONCA 747 (CanLII), 239 CCC (3d) 63, per Laskin JA, at para 70
  3. R v Primeau, 2017 QCCA 1394 (CanLII), 41 CR (7th) 22, per Healy JA
  4. Whitehorne, supra
  5. R v Sutherland, 1993 CanLII 6614 (SK CA), 84 CCC (3d) 484, per Vanscise JA, at pp. 497-498
  6. see Intention#Specific and General Intent
  7. Criminal Pleading & Practice, Ewaschuck, (2nd Edition) at para 21.0030
    Mathisen, supra, at para 70

See Also

Mistaken Belief of Age

General Principles

An accused can only be found guilty of a sex offence under s. 151, 152, 160, 172.1, 173, 271, 272 or 273 which involves a minor where the accused had an honest belief the complainant was of an age of consent. The crown as part of its case should prove beyond a reasonable doubt that the accused failed to take sufficient steps in all the circumstances to ascertain the complainant's age.

The standard to determine the sufficiency of the steps varies depending on the offence. Offences relying on s. 150.1 require the accused take "all reasonable steps", while offences under s. 172.1(4) require "reasonable steps".

150.1
[omitted (1), (2), (2.1), (2.2), (2.3), (3)]

Mistake of age

(4) It is not a defence to a charge under section 151 [sexual interference] or 152 [invitation to sexual touching], subsection 160(3) [bestiality in presence of or by child] or 173(2) [exposure to person under 16], or section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault] that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

Idem

(5) It is not a defence to a charge under section 153 [sexual exploitation], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity] or 172 [corrupting children] or subsection 286.1(2) [comm. to obtain sexual services for consideration – person under 18], 286.2(2) [material benefit from sexual services provided — person under 18] or 286.3(2) [procuring — person under 18] that the accused believed that the complainant was 18 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

Mistake of age

(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) [consent in sexual offences – exception for complainant aged 12 or 13] or (2.1) [consent in sexual offences – exception for complainant aged 14 or 15] unless the accused took all reasonable steps to ascertain the age of the complainant.
R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 2; 2008, c. 6, ss. 13, 54; 2014, c. 25, s. 4; 2015, c. 29, s. 6; 2019, c. 25, s. 51.
[annotation(s) added]

CCC


Note up: 150.1(4), (5) and (6)


Defined terms: "complainant" (s. 2)

Luring

See also: Child Luring (Offence)

s. 172.1
[omitted (1) and (2)]

Presumption re age

(3) Evidence that the person referred to in paragraph (1)(a) [child luring – under 18 years], (b) [child luring – under 16 years] or (c) [child luring – under 14 years] was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

No defence

(4) It is not a defence to a charge under paragraph (1)(a) [child luring – under 18 years], (b) [child luring – under 16 years] or (c) [child luring – under 14 years] that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
2002, c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14.
[annotation(s) added]

CCC


Note up: 172.1(3) and (4)

Reasonable Steps or All Reasonable Steps

"Reasonable steps" must be assessed in context and will turn on the specific circumstances of the case.[1] Both reasonable steps and "all reasonable steps" must be assessed on the basis of an objective and reasonable person.[2]

Under s. 150.1, "all reasonable steps" is a "due diligence defence".[3] The test is whether the steps ones that “a reasonable person would take in the circumstances” to ascertain a complainant’s age.[4]

Factors to consider include:[5]

  1. knowledge of the complainant
  2. physical appearance
  3. age and appearance of the complainant's associates
  4. age differential between the accused and the complainant
  5. demeanour of the complainant
  6. the time and location of the alleged sexual assault
  7. any other relevant times or places

It is generally understood that less familiar the parties are the more steps that are required to confirm there is consent to sexual activity.[6]

The bigger the age difference between the parties the greater the expectation that the accused would make more inquiries.[7] This can mean that a simple visual observation is insufficient.[8]

Where the accused became aware that information source relating to age may have been inaccurate in the past may affect the was reasonable steps are necessary.[9]

  1. R v Thain, 2009 ONCA 223 (CanLII), [2009] OJ No 1022, per Sharpe JA, at para 43
  2. Thain, ibid., at paras 46, 47
  3. R v Hess; R v Nguyen, 1990 CanLII 89 (SCC), [1990] 2 SCR 906, per Wilson J
  4. R v Dragos, 2012 ONCA 538 (CanLII), 291 CCC (3d) 350, per Cronk JA
    R v LTP, 1997 CanLII 12464 (BCCA), 113 CCC (3d) 42, per Finch J, at para 20. See also R v Hayes, [1991] AJ No 1232 (Alta. Q.B.)(*no CanLII links)
  5. R v RAK, 1996 CanLII 7277 (NB CA), 106 CCC (3d) 93, per Hoyt CJ
    LTP, supra
  6. R v Dippel, 2011 ABCA 129 (CanLII), 281 CCC (3d) 33, per curiam
    R v Crangle, 2010 ONCA 451 (CanLII), 77 CR (6th) 98, 256 CCC (3d) 234, per Goudge JA, leave to appeal refused 416 N.R. 390 (note) (SCC)
    R v S(T), 1999 CarswellOnt 245 (Ont. Gen. Div.)(*no CanLII links) , at para 158 ("A sexual encounter between persons with no history of sexual experience together...as a matter of logic and common sense, requires clear and unambiguous communication of consent, not self‑serving interpretations of equivocal or contradictory behavior.")
  7. R v RAK, 1996 CanLII 7277 (NB CA), 106 CCC (3d) 93, per Hoyt CJ
  8. R v MGB, 2005 ABPC 215 (CanLII), [2005] AJ No 1081, per Lamoureux J
  9. R v Saliba, 2013 ONCA 661 (CanLII), 304 CCC (3d) 133, per Doherty JA, at para 35

Alibi

This page was last substantively updated or reviewed January 2018. (Rev. # 79547)

General Principles

Generally, an "alibi" (latin for "elsewhere") refers to evidence that supports the claim that a person (usually the accused) was not present when the offence took place, rending his involvement impossible.[1]

Form of Evidence

Alibi evidence must be evidence that is "determinative of the final issue of guilt or innocence of the accused." It must be dispositive of guilt or innocence.[2]

An admission of being a party to some events making up the crime but not others is not an alibi. It must completely absolve the accused.[3]

An alibi must be subject to the Air of Reality Test before it can be put to the trier-of-fact.[4]

Where the Crown is on notice that alibi evidence will be called, the Crown is expected to call its evidence rebutting the alibi during its' case-in-chief and not during rebuttal.[5]

An alibi does not need to be proven, but rather it must simply raise a doubt.[6]

There is no requirement that an alibi be corroborated.[7]

Evidence that the accused had left the location of an assault before it took place is not alibi evidence.[8]

The application of the principles of alibi on a defence that is not actually an alibi may result in a reversable error where the pre-trial silence is used to reject the accused's evidence.[9]

Alibi Principles Not Otherwise Applicable

Where the accused's defence is not one of alibi, the trier of fact may not apply any principles to the case relating to the law of alibi.[10]This includes the accused's failure to come forward earlier with an explanation to the events at issue.[11]

Crown Rebuttal Evidence

The Court should generally not prohibit the Crown from calling rebuttal evidence in response to alibi evidence. The Crown is not required to anticipate alibi evidence by calling the rebuttal evidence during its case.[12]

  1. R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 49 ("is a claim that a person, usually a person charged with a crime, was elsewhere when the allegedly criminal conduct took place and thus it was impossible for him or her to have committed it.")
    R v Hill, 1995 CanLII 271 (ON CA), 102 CCC (3d) 469, per Laskin JA at 478-79 ("it was impossible for the accused to have committed the crime charged because, at the time of its commission, the accused was elsewhere")
    R v Wright, 2009 ONCA 623 (CanLII), 98 OR (3d) 665, per Doherty JA, at para 19
    R v MR, 2005 CanLII 5845 (ON CA), 195 CCC (3d) 26, per Cronk JA, at para 31
    R v C(TW), 2006 CanLII 12286 (2006), 209 OAC 119, per curiam
  2. Tomlinson, supra, at para 50
    Hill, supra, at pp. 478 to 479
    R v Sgambelluri and Sgambelluri Ltd., 1978 CanLII 2514 (ON CA), 43 CCC (2d) 496, per MacKinnon ACJ, at p. 500
    MR, supra, at para 31
  3. Wright, supra
  4. Tomlinson, supra, at para 51
  5. R v Biddle, 1995 CanLII 134 (SCC), [1995] 1 SCR 761, per Sopinka J
  6. Lizotte v The King, 1950 CanLII 48 (SCC), [1951] SCR 115, per Cartwright J
    R v JBJ, 2011 NSCA 16 (CanLII), 947 APR 195, per Farrar JA, at paras 40 to 45
  7. JBJ, ibid.
  8. R v Melnychuk, 2009 BCSC 1695 (CanLII), per Powers J
  9. R v Rohde, 2009 ONCA 463 (CanLII), 246 CCC (3d) 18, per Laskin JA
  10. R v Rohde, 2009 ONCA 463 (CanLII), 246 CCC (3d) 18, per Laskin JA, at para 18
  11. Rohde, ibid.
  12. R v RD, 2014 ONCA 302 (CanLII), 120 OR (3d) 260, per Tulloch JA, at para 19

Jury Instructions

See also: Jury Instructions

In a jury instruction, there is no need for the judge to make specific reference to "alibi" provided that the "instructions apprise the jury of the legal effect of the supportive evidence".[1]

The instructions on alibi should establish that:[2]

  1. that there is no onus on the accused to prove an alibi;
  2. that if the jury believes the alibi evidence, they must find the accused not guilty;
  3. that even if the jury does not believe the alibi evidence, if they are left in a reasonable doubt by it, they must find the accused not guilty; and
  4. that even if the alibi evidence does not raise a reasonable doubt about an accused’s guilt, the jury must determine, on the basis of all the evidence, whether Crown counsel has proven the guilt of the accused beyond a reasonable doubt.
  1. R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 52
  2. Tomlinson, ibid., at para 53
    R v O’Connor, 2002 CanLII 3540 (ON CA), 170 CCC (3d) 365, per O'Connor ACJ, at para 34

Notice and Disclosure

All alibi evidence must be disclosed to the crown in a timely manner.[1] This is an exception to the rule of the right to remain silent. This is due to "the ease with which alibi evidence may be fabricated; and the diversion of the alibi inquiry from the central inquiry at trial". [2]

Disclosure must be adequate and timely. If the disclosure does not satisfy these requirements, the trier of fact may draw an adverse inference when weighing the alibi evidence at trial.[3]

The failure of the accused to testify on alibi may be used to draw an adverse inference about the credibility of the accused. The reason for this is that alibi evidence is "not directly related to the guilt of the accused" so the determination of the credibility of the alibi does not go to the ultimate issue of guilt.[4]

Sufficiency

The disclosure of the particulars of the alibi must be enough to "enable the authorities to meaningfully investigate".[5]

Timeliness

The disclosure must be early enough to permit the investigators times to conduct a meaningful investigation into the particulars provided.[6]

Failure to Provide Timely and Sufficient Disclosure

An accused who fails to provide sufficient and timely disclosure does not render the evidence inadmissible. Instead, the trier-of-fact is able to make an adverse inference on the credibility of the witness giving the evidence as police did not have the chance to properly investigate the claims.[7]

A judge should instruct a jury "that failure to make timely and sufficient disclosure of the alibi is a factor the jury may consider in assessing the weight to be assigned to the alibi".[8]

An adverse inference is not permitted to evidence separate from the alibi evidence. The instructions should not suggest that any such inference can be made.[9]

A recanting Crown witness who only notifies the Crown on the day of trial of the recantation does not constitute late disclosure of alibi.[10] No adverse inference may be drawn from such a scenario.[11]

Late notice, raising alibi during testimony, gives the Crown the option to call rebuttal evidence.[12]

  1. R v Cleghorn, 1995 CanLII 63 (SCC), 100 CCC (3d) 393, per Iacobucci J
  2. R v Noble, 1997 CanLII 388 (SCC), 114 CCC (3d) 385, per Sopinka J
  3. Noble, ibid., at para 111
  4. Noble, ibid., at para 112
  5. R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, at para 121
    Cleghorn, supra, at para 3
    R v Letourneau, 1994 CanLII 445 , per Cumming JA, at p. 532
    R v Nelson, 2001 CanLII 5235 (ON CA), OAC 358, per curiam, at para 8
  6. Tomlinson, supra, at para 121
    Cleghorn, supra, at para 3
    Letourneau, supra, at p. 532
    Nelson, supra, at para 8
  7. R v Picot, 2013 NBCA 26 (CanLII), NBJ No 114, per Richard JA
    Tomlinson, supra, at para 122
  8. Tomlinson, ibid., at para 122
    Cleghorn, supra, at para 4
    Russell v The King, 1936 CanLII 323 (SCC), 67 CCC 28 (SCC), per Kerwin J, at p. 32
    Nelson, supra, at para 8
  9. Tomlinson, supra, at para 123
    R v Gottschall, 1983 CanLII 3596 (NS CA), (1983), NSR (2d) 86 (CA), per MacDonald JA, at p. 91
  10. R v Kelly, 2014 ONCA 380 (CanLII), per curiam
  11. Kelly, ibid., at paras 12 to 14
  12. R v RB, 2011 ONCA 328 (CanLII), 280 OAC 329, per curiam, at para 4

False Alibi as Consciousness of Guilt

Where an alibi is "proved false" the trier of fact may use that evidence as consciousness of guilt.[1]

There must be "evidence linking the accused to the fabrication" and cannot arise from "mere rejection of the alibi tendered".[2]

There is also suggestion that there must be "independent" or "extrinsic" evidence of fabrication.[3] The evidence must be independent of the evidence establishing guilt.[4]

Fabrication can be inferred from a statement or its contents in which it was given, which include consideration such as (1) timing of the statement (2) the scope of statement and (3) the degree of detail provided by accused.[5]

  1. R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, per Arbour J, at para 59
    R v Mirsayah, 2007 BCSC 1596 (CanLII), per Groberman J
    R v Polimac, 2010 ONCA 346 (CanLII), 254 CCC (3d) 359, per Doherty JA, at paras 90 to 92
    R v Tessier, 1997 CanLII 3475 (BC CA), 113 CCC (3d) 538, per Rowles JA, (“a disbelieved alibi is not ‘evidence’ and disbelief in the alibi evidence cannot provide, through circular reasoning, the foundation for an inference of guilt.”)
    R v Davison, DeRosie and MacArthur, 1974 CanLII 787 (ON CA), 20 CCC (2d) 424, per Martin JA
  2. Hibbert, supra, at para 59
  3. Mirsayah, supra, at paras 66 to 68
    Hibbert, supra, at para 59
    Tessier, supra, at para 68 (only permitted if there is “other evidence” that the alibi was deliberately fabricated and that the accused was attempting to mislead the finder of fact, that an inference of consciousness of guilt may be drawn – not from the failed alibi per se but from the attempt to deceive.")
    R v Blazeiko, 2000 CanLII 14726 (ON CA), 145 CCC (3d) 557, per curiam, at para 7
    R v Edwards, 2004 CanLII 32312 (ON CA), 187 CCC (3d) 129, per curiam, at para 33
    cf. R v Clifford, 2016 BCCA 336 (CanLII), 339 CCC (3d) 276, per Newbury JA
  4. Mirsayah, supra, at paras 66 to 68
    R v Tessier, 1997 CanLII 3475 (BC CA), 113 CCC (3d) 538, per Rowles JA
    cf. R v Pritchard, 2007 BCCA 82 (CanLII), 217 CCC (3d) 1, per Hall JA, at para 59 - suggests independent of the evidence that allowed for rejection of alibi
  5. R v MacIsaac, 2017 ONCA 172 (CanLII), 347 CCC (3d) 37, per Trotter JA, at para 48

See Also

De Minimus Non Curat Lex

This page was last substantively updated or reviewed January 2019. (Rev. # 79547)

General Principles

The principle of de minimus non curat lex excludes certain acts from criminal sanctions due to their trivial nature. The principle is based on the premise that the law should not concern itself with trifling matters.[1]

The doctrine is applied to "harmless conduct" perpetrated by someone who has "not really done anything [criminally] wrong". It is conduct "for which there is no reasoned apprehension or harm to any legitimate personal or social interest."[2]

The availability of lower end penalties, such as absolute discharges, for a conviction can be influential on whether the decline to apply the doctrine to some minor offences.[3]

History

The doctrine has its origin in the English common law in the 16th century.[4]

Dispute on Application in Criminal Law

While there are courts that have applied the doctrine in many circumstances, there remains some contention that the doctrine has no application in criminal law.[5]

Appellate Review

The application of the principle of de minimus non curat lex is a question of law and reviewable on a standard of correctness.[6]

  1. see R v Kubassek, 2004 CanLII 7571 (ON CA), 188 CCC (3d) 307, per Catzman JA (discusses the English common law history of de minimus)
  2. R v Carson, 2004 CanLII 21365 (ON CA), 185 CCC (3d) 541, per curiam, at para 24
  3. R v CDW, 2016 NSPC 31 (CanLII), per Derrick J, at para 38
  4. Taverner v Cromwell (1594), 78 E.R. 601 (UK)
    The "Reward" (1818), 2 Dods. 265, 165 E.R. 1482 (UK) at 1484
  5. R v Yum Pur Li, 1984 CanLII 3546 (ON SC), 16 CCC (3d) 382, per Montgomery J, at p. 386 ("The wealth of authority in my view is that the principle of de minimis non curat lex has no application to the criminal law. That certainly has been the disposition in appellate courts in Canada in drug related offences.")
    R v Hinchey, 1996 CanLII 157 (SCC), [1996] 3 SCR 1128, per L’Heureux-Dubé J (4:3), at para 69 ("this principle’s potential application as a defence to criminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below. Since a resolution of this issue is not strictly necessary to decide this case, I would prefer to leave this issue for another day.")
  6. R v Rumo, 2013 ONSC 1856 (CanLII), per Hourigan J, at para 11

Property Offences

In certain circumstances, Courts have excused minor thefts. The theft of a "handful" of nuts from a grocery store was not sufficiently serious for a conviction.[1] However, the theft of nail polish was sufficient for a conviction.[2]

  1. R v Fowler, 2009 SKPC 114 (CanLII), 344 Sask R 56, per Harradence J
  2. R v Gale, 2009 CanLII 73900 (NL PC), per Gorman J

Offences of Violence

There is "limited" societal interest in applying 'de minimus to offences of violence.[1]

In general, the least touching of another person without their consent constitutes an assault.[2] The strength of the force is immaterial to the consideration of guilt. [3] It has been pointed out that the level of force or violence is not the sole determiner on the question of the societal interest in criminalizing an offence of violence.[4]

Spitting is not a de minimus offence as it poses a risk of transmission of disease.[5]

However, non-consensual touching amounting to a trivial assault can be subject to a de minimus finding.[6]

Incidental or innocuous touching could be de minimus.[7] Even a "light strike" has been found to fall within the meaning of "trifling".[8] However, a grab to the arm and pull of a person 10 to 15 meters is not trifling.[9]

The pull on an officer's vest was found to be insufficient.[10]

Domestic Violence

The principle cannot generally be applied in the context of domestic violence.[11]

Other Scenarios

The non-consensual "dancing" with a security staff member is not an assault on the basis of de minimus. [12]

Pushing of a minister in the chest nearly causing him to trip is not trifling.[13]


  1. R v CDW, 2016 NSPC 31 (CanLII), per C Williams J, at para 22
    R v SAW, 2002 NSPC 40 (CanLII), 662 APR 85, per C Williams J - carrying and "tweak"-ing of complainant's nose.
  2. see R v Dawydiuk, 2010 BCCA 162 (CanLII), 253 CCC (3d) 493, per Rowles JA
  3. see R v Palombi, 2007 ONCA 486 (CanLII), 222 CCC (3d) 528, per Rosenberg JA
  4. R v Carson, 2004 CanLII 21365 (ON CA), 185 CCC (3d) 541, per curiam, at para 25 ("The extent of injuries resulting from the use of force, while an important factor, is not the sole determinative of the personal or societal interest in a crime. The harm to society occasioned by domestic violence, even of a minor nature, cannot be understated")
    R v Gosselin, 2012 QCCA 1874 (CanLII), ', per Kasirer JA (rejected application of doctrine any acts of violence in conjugal context)
  5. R v DH, 2017 ABPC 132 (CanLII), per Cornfield J
  6. R v Juneja, 2009 ONCJ 572 (CanLII), [2009] OJ No 5119, per Duncan J
    R v Hinchey, 1996 CanLII 157 (SCC), [1996] 3 SCR 1128, (1996) 111 CCC (3d) 353, per L'Heureux-Dube J, at p. 380-81
  7. R v Peniston, 2003 NSPC 2 (CanLII), 665 APR 72, per C Williams J
  8. R v Merasty, 2002 SKPC 86 (CanLII), 225 Sask R 120, per Carter J
    R v Wiebe, 2001 SKQB 389 (CanLII), 211 Sask R 30, per Wilkinson J
  9. R v Rumo, 2013 ONSC 1856 (CanLII), per Hourigan J
  10. R v Newsome, 2017 BCSC 56 (CanLII), per Hyslop J
  11. R v Downey, 2002 NSSC 226 (CanLII), 652 APR 153, per LeBlanc J, at para 38
    R v RHL, 2008 NSCA 100 (CanLII), [2008] NSJ 468 (NSCA), per Saunder JA, at para 35
    cf. R v Ferreira, 2014 ONCJ 21 (CanLII), OJ No 189, per O'Donnell J
  12. R v Murphy, 2010 NBPC 40 (CanLII), 946 APR 133, per Walker J
  13. R v Kubassek, 2004 CanLII 7571 (ON CA), [2004] OJ No 3483 (C.A), per Catzman JA (overturned trial judge acquittal)

Drugs

The defence has been invoked in relation to the possession of drugs where the amounts alleged are merely residual particles of a controlled substance. [1]

The existence of drug residue can be evidence of past possession.[2]

  1. R v Marusiak, 2002 ABQB 774 (CanLII), 5 CR (6th) 182, per Sullivan J
    cf. R v Keizer, 1990 CanLII 4120 (NS SC), 59 CCC (3d) 440, per Richard J
    R v Arne-Ling, 1954 CanLII 409 (AB QB), [1954] 109 CCC 306, per McBride J
    cf. R v Quigley, 1954 CanLII 400 (AB CA), 111 CCC 81, per Ford JA
  2. R v McBurney, 1974 CanLII 1550 (BC SC), 15 CCC (2d) 361 (BCSC), per Berger J ("A minute trace is evidence of earlier possession. It does not establish a present possession.")

Other Offences

Impaird Driving

Where the BAC reading was found to be one milligram above the required threshold of BAC 0.8, the doctrine will not apply.[1]

Mischief

Three young accused who pushed a vehicle 10 to 30 feet down the road were not convicted under the doctrine.[2] The interference of enjoyment of a property by momentarily entering it was considered a trivial interference insufficient to make out the mens rea or actus reus.[3]

Breach of Court Orders

The degree of breach of a publication ban is not relevant to consideration of whether the offence is made out.[4]

However, text message contact with the complainant to make arrangements for childcare was considered a trivial breach of a no-contact order.[5]

  1. R v Usichenko, 2002 CanLII 7248 (ON SC), per Beaulieu J
  2. R v Chapman, 1968 CanLII 827 (BC SC), 3 CCC 358, per Harvey J
  3. R v Gibson, 1976 CanLII 953 (SK QB), 6 WWR 484, per Walker
  4. R v Banville, 1983 CanLII 3027 (NB QB), 3 CCC (3d) 312, per Hoyt J - publication of 17 copies of a paper
  5. R v Arsenault, 2018 ONCJ 224 (CanLII), per Bliss J

Due Diligence

This page was last substantively updated or reviewed March 2019. (Rev. # 79547)

General Principles

See also: Regulatory and Provincial Offences

All offences of strict liability do not require the Crown to prove any mens rea, there only needs to be an actus reus proven. For any of these offences, it is open to the accused either to raise a defence of due diligence by establishing that reasonable care was taken or by raising a defence of mistake of fact.[1]

Once the Crown proves the elements of a regulatory or provincial "strict liability" offence or otherwise establishes a duty upon the accused, the onus is on the accused to establish due diligence. This must be proven on a balance of probabilities.[2] The conduct of the accused is measured against that of "a reasonable person in similar circumstances".[3]

This defence is, by definition, only applicable to "strict liability" offences and not "absolute liability" offences.[4]

  1. R v Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299, per Dickson J
  2. e.g. R v Ariganello, 2013 ONCJ 13 (CanLII), per Baldwin J
    R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 SCR 44, per Cory J, at para 32 ("...a person accused of a strict liability offence may avoid conviction by proving, on the balance of probabilities, either that he had an honest but mistaken belief in facts which, if true, would render the act innocent, or that he exercised all reasonable care to avoid committing the offence.")
  3. Lévis (City) v Tétreault; Lévis (City) v 2629-4470 Québec inc, 2006 SCC 12 (CanLII), [2006] 1 SCR 420, per LeBel J, at para 15 ( “the accused in fact has both the opportunity to prove due diligence and the burden of doing so. An objective standard is applied under which the conduct of the accused is assessed against that of a reasonable person in similar circumstances.”)
  4. Pontes, supra, at para 32 (".. if neither of these two facets of the defence of due diligence is available to an accused, the offence cannot be said to be one of strict liability. By definition, a strict liability offence requires that the defence of due diligence be available. Put another way, if the offence does not permit a due diligence defence, then it cannot be a strict liability offence.")
    see also Regulatory and Provincial Offences

Reasonable Care

Due diligence requires the accused to "take all reasonable steps" or "all reasonable care" to avoid the harm that resulted. [1]

Due diligence defence is also available where the accused "had an honest but mistaken belief in facts which, if true, would render the act innocent".[2]

It is not necessary that the accused take all conceivable steps, however.[3]

In assessing due diligence, WD test for credibility does not apply.[4]

This is considered from the perspective of a reasonable person in similar circumstances.[5]

This does not mean that the accused would be required to perform acts that would put the accused in unreasonable danger.

  1. R v British Columbia Hydro and Power Authority, 1997 CanLII 4373 (BC SC), [1997] BCJ No 1744 (S.C.), per Lamperson J, at para 55 ("In other words, an accused must take all reasonable steps to avoid harm. However, that does not mean an accused must take all conceivable steps.")
    R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 SCR 44, per Cory J, at para 32
  2. Pontes, ibid., at para 32
  3. BC Hydro and Power Authority, supra, at para 55
  4. R v Carpentier, 2005 MBCA 134 (CanLII), 203 CCC (3d) 251, per Steel JA, at para 27
    R v Ariganello, 2013 ONCJ 13 (CanLII), per Baldwin J, at para 18
    R v Defaria, 2008 ONCJ 687 (CanLII), [2008] OJ No 5427, per Duncan J, at para 16 ("...the matter in issue was due diligence... . In my view, it would be illogical and inappropriate to give the defendant the benefit of reasonable doubt on credibility when he bears the burden of proof on a balance of probabilities. I am firmly of the view that W.D. has no application to regulatory offences where the defence of due diligence is to be assessed by the trial court.")
  5. La Souveraine, Compagnie d'assurance générale v Autorité des marchés financiers, 2013 SCC 63 (CanLII), [2013] 3 SCR 756, per Wagner J, a accused can "avoid liability by showing that he or she took all reasonable steps to avoid the particular event .... The defence of due diligence is based on an objective standard: it requires consideration of what a reasonable person would have done in similar circumstances.")

Industry Standards and Practices

Compliance with industry standard practice is a factor that weighs in favour of due diligence but it not determinative.[1]

Industry standards and practice cannot be of any value to due diligence if it is established that the standard is insufficient. It then cannot be used as a shield against responsibility.[2]

  1. see R v Emil K. Fishing Corp.; R v Kukuljan, 2008 BCCA 490 (CanLII), [2008] BCJ No 2326; 304 DLR (4th) 725, per Groberman JA leave refused
    R v Bui, [2005] OJ No 1456(C.J.)(*no CanLII links)
  2. R v London Excavators & Trucking Ltd., 1998 CanLII 3479 (ON CA), (1997) 26 C.C.E.L.(2d) 132 (Ont. P.C.), per Catzman JA
    R v Pilen Construction of Canada Ltd. [1999] OJ No 5650, affd [2001] OJ No 2980 (SCJ)(*no CanLII links)
    Libman, Regulatory Offences in Canada, at page 7-27 (“…a defendant cannot hide behind commonly accepted standards of care if, in the circumstances, due diligence warrants a higher level of care.”)

See Also

Consent

This page was last substantively updated or reviewed January 2016. (Rev. # 79547)

General Principles

See also: Common Assault (Offence)

Assaultive offences require an absence of consent before they are criminal. In some offences the absence of consent is presumed.

The absence of consent is determined on a subjective standard at the time the physical contact occurs. It is a question of fact determined by the trier-of-fact based on the entirety of the circumstances and the credibility of the alleged victim.[1]

When One Cannot Consent to Harm

The ability to consent to an assault ends once the culprit intends and causes "serious bodily harm".[2] Once there is requisite intent and the consequence, s. 265(3) does not apply.[3] Under the Jobidon principle, consent is said to be "nullified".[4]

Serious Bodily Harm

The requirement for "serious bodily harm" is distinct from "bodily harm". Serious bodily harm means any "hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological health or well-being of the complainant".[5]

Types of Offences

The defence of consent is potentially available for a charge of aggravated assault so long as there is evidence that the accused did not intentionally cause serious bodily harm.[6] It also remains available in a case of sexual assault causing bodily harm.[7]

Nullifying Consent

Consent to a fight cannot be nullified unless there is intent to cause serious bodily harm and serious bodily harm is caused.[8]

Deemed Absence of Consent

Under s. 265(3), all forms of assault, including sexual assault under s. 271, 272, and 273[9] cannot be consented to when the following exists:

s. 265
[omitted (1) and (2)]

Consent

(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.

[omitted (4)]
R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.

CCC


Note up: 265(3)

Section 265(3)(d) requires that there be a “coercive use of authority to overcome resistance to a consent”[10]

Cannot Consent to Infliction of Death

In a more extreme situations, it is not possible to consent to death:

Consent to death

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.
R.S., c. C-34, s. 14.

CCC


Note up: 14

"serious bodily harm"

see Definition of Bodily Harm

  1. R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J
  2. R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, 66 CCC (3d) 454(V), per Gonthier J
    R v McDonald, 2012 ONCA 379 (CanLII), 284 CCC (3d) 470, per Himel J, at para 26
    Attorney General’s Reference (No. 6 of 1980) [1981] 2 All E.R. 1057 (CA) (UK)
  3. Jobidon, supra
  4. Jobidon, supra
    R v Paice, 2005 SCC 22 (CanLII), [2005] 1 SCR 339, per Charron J
  5. R v McCraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, per Cory J
    R v Azevedo, 2012 ONSC 6052 (CanLII), per Ray J, at para 9 ("...in accordance with the Jobidon decision, consent cannot be nullified unless there is both intent to cause serious bodily harm and serious bodily harm is caused. The Supreme Court [in Paice] re-affirmed and refined the Jobidon decision and held that serious harm must be both intended and caused for consent to be vitiated.")
  6. R v McDonald, 2012 ONCA 379 (CanLII), 284 CCC (3d) 470, per Himel J, at para 21
  7. R v Quashie, 2005 CanLII 23208 (ON CA), 198 CCC (3d) 337, per Gillese JA
  8. McDonald, ibid., per Himel J, at para 26
    R v Paice, 2005 SCC 22 (CanLII), [2005] 1 SCR 339, per Charron J, at para 18 ("... Jobidon requires serious harm both intended and caused for consent to be vitiated...")
  9. this is by function of s. 273.1
  10. R v Lutoslawski, 2010 ONCA 207 (CanLII), 258 CCC (3d) 1, per Doherty JA

Implied Consent

The doctrine of implied consent is based on the public policy interest to not over-criminalize certain actions. It must be "strictly limited to conduct which is consistent with the purpose and rationale underlying the policy basis".[1]

Any touching protected by implied consent must consist of conduct that "our customary norms of social interaction deem to be consensual." [2] This is determined on an objective basis.[3]

Implied consent is not applicable to sexual assault.[4]

  1. R v AE, 2000 CanLII 16823 (ON CA), 146 CCC (3d) 449, per Weiler JA, at para 33
  2. R v Bennett, 2006 CanLII 31012 (NL PC), per Gorman J, at paras 41 to 45
    R v Cey, 1989 CanLII 283 (SK CA), 48 CCC (3d) 480, per Gerwing JA, at page 490
  3. Bennett
    Cey
  4. R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J
    See Consent in Sexual Offences

Consensual Fight

A consensual fight is not necessarily an assault as the parties are consenting to the physical contact. [1] Consent can be negated or vitiated where the force causes bodily harm and was intended to be caused.[2] Thus, where serious bodily harm was intended and caused, there can be no consent.[3]

In the context of a fist fight, the necessary mens rea requires that the force be applied recklessly and the risk of bodily harm was objectively foreseeable.[4]

Honest but mistaken belief in consent can be used as a defence.[5]

With Weapons

No one can consent to a fight with weapons that result serious bodily harm.[6]

  1. R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, 66 CCC (3d) 454, per Gonthier J
  2. R v Paice, 2005 SCC 22 (CanLII), [2005] 1 SCR 339, per Charron J
    R v WG, 1994 CanLII 3442 (ON CA), 90 CCC (3d) 139, per Doherty JA ("The combination of an intention to do serious harm, the use of force obviously capable of producing that result, and the actual infliction of bodily harm bring this fact situation squarely within the policy considerations enunciated in Jobidon. The victim’s consent cannot negate culpability even where the accused is a young person.")
    Jobidon, supra, at pp. 22, 23
    See R v Crosby, 2005 PESCAD 1 (CanLII), CR (6th) 39, 192 CCC (3d) 23, per Mitchell JA during a fist fight, consent is not vitiated unless accused intended to inflict bodily harm
  3. R v Sullivan, 2011 NLCA 6 (CanLII), 270 CCC (3d) 93, per Welsh JA, at para 13 ("The test to be applied when assessing whether consent has been vitiated is whether serious bodily harm was caused and was intended.")
  4. Sullivan, ibid., at para 24 ("In the context of a consensual fist fight, in light of Paice, the necessary mens rea will be proven if it is established beyond a reasonable doubt that force was applied recklessly and the risk of serious bodily harm was objectively foreseeable.")
  5. WG, supra
    R v TNB, 2009 BCPC 117 (CanLII), 65 CR (6th) 170, per Frame J, at para 7
  6. Jobidon, supra at p. 765-768 (SCR)

Consent in Sports

While normally a person cannot consent to an assault that intends to cause bodily harm, there is an exception to this for sports where the conduct is part of the norms of the particular sport.[1] Thus sports players may consent to some bodily harm necessarily incidental to the sport. However, conduct that is deliberately for the purpose of inflicting injury will not be protected.[2]

The limits of implied consent are determined by an "amalgam of written rules, unwritten code of conduct and guidelines set by a referee in a particular game".[3] Unwritten code can include "legitimate strategy of intimidation" that involves violence.[4]

Consent will expand to include force outside of the rules but within the range of acceptable standards in which the game is played.[5]

Given the permissiveness of certain sports and the willingness of players to undertake the risks associated with the game, it is difficult to envision an ability to convict on common assault.[6]

Where the use of force is unreasonable and falls outside the parameters of the sport, there can be no consent.[7]

Factors

Where the sport is recreational or has no-contact rules, the tolerance for use of force will be lower.[8]

The court should consider whether the conduct is "closely related to the play".[9]

  1. R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, 66 CCC (3d) 454, per Gonthier J
  2. R v Leclerc, 1991 CanLII 7389 (ON CA), 67 CCC (3d) 563, per Lacourciere JA
  3. R v TNB, 2009 BCPC 117 (CanLII), 65 CR (6th) 170, per Frame J, at para 17
  4. TNB
  5. R v CC, [2009] OJ No 2216 (consent "will be implied for contact and force that comes within the rules of the game. Consent will also be implied with respect to force that is outside the rules but within the scope of the accepted standards by which the game is played") R v Cey, 1989 CanLII 283 (SK CA), 48 CCC (3d) 480, per Gerwing JA
  6. R v Green, 1970 CanLII 973 (ON CJ), 16 DLR (3d) 137, per Fitzpatrick J
    see also R v Maki, 1970 CanLII 569 (ON CJ), 1 CCC (2d) 333, per Carter J - one of first cases in Canada relating to professional hockey
  7. e.g. R v Krzysztofik (G.), 1992 CanLII 13029 (MB QB), 79 Man R (2d) 234, per Darichuk J - conviction for aggravated assault in hockey game
  8. Krzysztofik (G.), ibid. at paras 11 to 13
  9. R v Leyte, 1973 CanLII 1449 (ON CJ), 13 CCC (2d) 458, per Perkins J Krzysztofik, supra at para 10

Consent in Domestic Assaults

See also: Common Assault (Offence)

There is a degree of implied consent in certain social interactions such as domestic partnerships.[1] Courts have been highly resistant to recognizing consent to an assault between partners.[2] Any force intended to cause bodily harm will automatically negate any consent.[3]

  1. R v Menkarios, 2010 ONSC 5478 (CanLII), per R Smith J, at para 38
  2. R v Downey, 2002 NSSC 226 (CanLII), [2002] NSJ No 442 (NSSC), per Leblanc J
    R v Lewis, [2004] OJ No 3059 (Ont. C.J.) (*no CanLII links)
    R v Swaine, [1999] OJ No 3457 (Ont. C.J.) (*no CanLII links)
    R v Tierney, [1994] PEIJ No 118 (PEISCTD) (*no CanLII links)
    R v Allum, [1996] AJ No 360 (Alta.P.C.) (*no CanLII links)
    R v Stewart, [1996] OJ No 2704 (Ont.C.J.) (*no CanLII links)
    R v Abraham, 1974 CanLII 1592 (QC CA), 30 CCC (2d) 332 (Que.C.A.), per Crete JA
    R v Bruce, 1995 CanLII 2442 (BC CA), [1995] BCJ No 212 (BCCA), per McEachern CJ
    R v CMC, [1996] BCJ No 2545 (BCPC) (*no CanLII links)
  3. R v Shand, 1998 CanLII 4686 (NS CA), 166 NSR (2d) 74 (NSCA), per Pugsley JA

General Consent for Sexual Offences

See Also

Consent in Sexual Offences

This page was last substantively updated or reviewed August 2021. (Rev. # 79547)

General Principles

See also: Consent and Sexual Assault (Offence)

The element of consent "is generally the most important issue with regard to sexual assault".[1]

Consent is a matter of the "actual state of mind of the complainant".[2] Belief in consent is a matter of the state of mind of the accused.[3]

Consent applies to both the actus reus and mens rea of the offence. The actus reus concerns whether "the complainant was subjectively consenting in her mind" and the mens rea concerns whether "accused believed that the complainant communicated consent".[4]

The absence of consent must be determined on a subjective basis of the complainant "by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred."[5]

There is no obligation that the complainant "express her lack of consent or her revocation of consent" before the actus reus can be made out.[6]

If the trial judge believes the complainant subjectively did not consent, the Crown has proved the absence of consent. The accused’s view of the complainant’s conduct is not relevant to whether the actus reus has been established. [7]

Implied Consent

There must be actual consent. It is not a defence to sexual assault to suggest implied consent.[8]

Implied consent cannot rest on the assumption that there is consent if the woman fails to protest or resist.[9]

Timing of Consent

Consent must coincide with the sexual activity and can be withdrawn at any time.[10]

Proof of Lack of Consent

The proof of lack of consent requires that the accused "knew that the complainant was not consenting to the sexual act in question, or was reckless or wilfully blind to the absence of consent.".[11]

In certain cases, the accused may raise a defence of honest but mistaken belief in consent.[12]

Statutory Requirements

In relation to offences of sexual assault, sexual assault causing bodily harm (or with a weapon), or aggravated assault, consensual sexual activity must be consensual within the meaning of s. 273.1(1) of the Code. Section 273.1 states:

Meaning of “consent”

273.1 (1) Subject to subsection (2) [no consent obtained – sexual assault] and subsection 265(3) [where consent is deemed unavailable in common assault], “consent” means, for the purposes of sections 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] and 273 [aggravated sexual assault], the voluntary agreement of the complainant to engage in the sexual activity in question.

Consent

(1.1) Consent must be present at the time the sexual activity in question takes place.

Question of law

(1.2) The question of whether no consent is obtained under subsection 265(3) [where consent is deemed unavailable in common assault] or subsection (2) [no consent obtained – sexual assault] or (3) is a question of law.

Where no consent obtained

(2) For the purpose of subsection (1) [no consent obtained – sexual assault], no consent is obtained if

(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(a.‍1) the complainant is unconscious;
(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.‍1);
(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.
Subsection (2) not limiting

(3) Nothing in subsection (2) [no consent obtained – sexual assault] shall be construed as limiting the circumstances in which no consent is obtained.
1992, c. 38, s. 1; 2018, c. 29, s. 19.

[annotation(s) added]

CCC


Note up: 273.1(1), (1.1), (1.2), (2), and (3)

Where belief in consent not a defence

273.2 It is not a defence to a charge under section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault] 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
(i) the accused’s self-induced intoxication,
(ii) the accused’s recklessness or wilful blindness, or
(iii) any circumstance referred to in subsection 265(3) [where consent is deemed unavailable in common assault] or 273.1(2) [no consent obtained – sexual assault] or (3) in which no consent is obtained;
(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; or
(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

1992, c. 38, s. 1; 2018, c. 29, s. 20.

CCC


Note up: 273.1

Analysis of consent for sexual offences requires a two-step process:[13]

  1. determine whether there is evidence establishing there was no "voluntary agreement of the complainant to engage in the sexual activity in question" (s. 273.1(1))
  2. if there was consent (or a reasonable doubt of a lack of consent), then "consider whether there are any circumstances that may vitiate her apparent consent".

Once there is a "no" there is sufficient notice to the accused that there is a problem with consent. This obliges the accused to obtain a clear and unequivocal yes before there is any further sexual activity. [14] The rule equally applies to an obvious statement such as "stop".[15] A more modern approach requires that "[n]othing less than positive affirmation" will amount to consent.[16]

First Step

The first step "requires proof that the complainant did not voluntarily agree to the touching, its sexual nature, or the identity of the partner." Other conditions or qualities of the act, such as whether effective birth control was being used or the existence of a sexually transmitted disease are not relevant at this stage. [17] The "sexual activity in question" refers to the specific physical act, whether it be kissing, petting, oral sex, intercourse, or the use of sex toys. This will be as precise as the form of penetration or the part of the body to be touched.[18] The sexual nature of the offence should distinguish from other forms of non-sexual activity such as medical examinations.[19] The identity of the sexual partner refers to "a specific individual known personally to her". Where the complainant is mistaken then there can be no consent on this first stage.[20]

In this first step the Crown must prove the absence of a subjective voluntary agreement to the sexual act in question.[21] The absence of consent, as an element of the offence, is "judged subjectively from the complainant's point of view".[22]

Position of Trust

Section 273.1(2)(c) does not require coercion. It is applicable where the “use of personal feelings and confidence engendered by that relations to secure an apparent consent to sexual activity”.[23]

  1. R v James, 2011 BCSC 612 (CanLII), 86 CR (6th) 107, per Romilly J, at para 18
  2. R v Ewanchuk, 1999 CanLII 711 (SCC), [199] 1 SCR 330, per Major J, at para 27
    R v Nguyen, 2017 SKCA 30 (CanLII), 348 CCC (3d) 238, per Caldwell JA, at para 8
  3. Nguyen, ibid., at para 8
    R v Dippel, 2011 ABCA 129 (CanLII), 281 CCC (3d) 33, per curiam, at para 13
  4. R v JA, 2011 SCC 28 (CanLII), [2011] 2 SCR 440, per McLachlin CJ, at para 37
    Ewanchuk, supra, at paras 48 to 49
  5. Ewanchuk, ibid., at para 26
  6. JA, supra, at para 37
  7. Ewanchuk, supra, at para 29
  8. Ewanchuk, supra, at para 31
  9. R v RGB, 2012 MBCA 5 (CanLII), 287 CCC (3d) 463, per Freedman and Chartier JJA, at para 54
  10. R v Hutchison, 2014 SCC 19 (CanLII), [2014] 1 SCR 346, per McLachlin CJ and Cromwell J, at para 17
  11. JA, supra, at para 24
  12. JA, supra, at para 24
  13. Hutchinson, supra
  14. Ewanchuk, supra at para 51
  15. R v AE, 2021 ABCA 172 (CanLII), per Martin JA
  16. R v Goldfinch, 2015 SCC 38 (CanLII) at para 44 ("Today, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required.")
  17. Hutchison, ibid., at paras 5, 55
  18. Hutchinson, ibid., at para 54
  19. Hutchinson, ibid., at paras 57, 58
  20. Hutchinson, ibid., at paras 58, 63
  21. Hutchinson, ibid., at para 55
  22. Hutchison, ibid., at para 17
  23. R v Lutoslawski, 2010 ONCA 207 (CanLII), 258 CCC (3d) 1, per Doherty JA

Sexual Activity in Question

Consent in sexual assault set out in s. 273.1 requires "voluntary agreement" between the persons to "the sexual activity in question". This is meaning is restricted to the complainant's subjective agreement to the "touching and its sexual nature". [1] The "sexual activity in question" refers to the "physical sex act itself (for example, kissing, petting, oral sex, intercourse, or the use of sex toys)."[2]

  1. R v Hutchison, 2014 SCC 19 (CanLII), [2014] 1 SCR 346, per McLachlin CJ and Cromwell J
  2. Hutchison, ibid., at para 54

Statutory Exceptions To Consent

See also: Consent

Section 265(3) deems an absence of consent despite evidence of consent in certain circumstances consisting of:[1]

  • application of force to complainant or another (s. 265(3)(a))
  • threats or fear of force to the complainant or another (s. 265(3)(b))
  • fraud (s. 265(3)(c))
  • exercise of authority (s. 265(3)(d))

The circumstances set own s. 265(3) identify "situations in which it complainant's apparent consent is not effective because it is not a true reflection of the exercise of the complainant's free will".[2]

  1. R v Hutchison, 2014 SCC 19 (CanLII), [2014] 1 SCR 346, per McLachlin CJ and Cromwell J, at para 4
  2. R v Geddes, 2015 ONCA 292 (CanLII), 322 CCC (3d) 414, per Doherty JA, at para 32

Statutory Exemption Under s. 273.1(2)

Section 273.1(2) is a non-exhaustive list of circumstances in which no consent is obtained.[1] While s. 273.1(3) provides a manner in which courts may consider other circumstances.[2]

Purposes

The purpose of the provision under s. 273.1(2)(c) is “[t]he protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity”.[3]

Meaning of "Consent"

"Consent" in s. 273.1 refers to "consent as the conscious agreement of the complainant to engage in every sexual act in a particular encounter."[4] Consent requires "a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act." [5]

All non-verbal behaviours that are being relied upon as "expressions of consent" must be "unequivocal".[6]

Consent Expected in Sexual Encounters

A sexual encounter between two strangers requires "as a matter of logic and common sense ... clear and unambiguous communication of consent".[7] Depending on the circumstances, context of the prior relationship "may, in certain circumstances, impliedly provide scope for the perception of the existence of consent".[8]

  1. R v JA, 2011 SCC 28 (CanLII), [2011] 2 SCR 440, per McLachlin CJ, at para 29
  2. JA, ibid., at para 29
  3. R v Snelgrove, 2019 SCC 16 (CanLII), [2019] 2 SCR 98, per Moldaver J
    R v Hogg, 2000 CanLII 16865 (ON CA), 148 CCC (3d) 86, per Finlayson JA, at para 17
  4. JA, supra, at para 31
  5. JA, supra, at paras 44, 66
  6. R v TS, [1999] OJ No 268 (Ont. Ct. J. (Gen. Div.)(*no CanLII links) , per Hill J, at p. 158
  7. TS, ibid., at para 158
  8. TS, ibid., at para 158

Capacity to Consent

Section 273.1(2)(b) deems there to be no consent where "the complainant is incapable of consenting to the activity".

Capacity is as necessary precondition to consent.[1]

A complainant who is (a) unable to say "no" or (b) believes they have no choice in the matter, is not capable of forming subjective consent.[2]

Burden of Proof

The Crown has to prove beyond a reasonable doubt either the absence of a capacity to consent or the absence of consent as a fact.[3]

Standard of Proof

Incapacity is established where the evidence is shown that the complainant is "incapable of understanding the sexual nature of the act" or was "not able to appreciate that they may choose to decline to decline to participate in the activity".[4]

Effect of Incapacity

If incapacity is established, the Crown does not need to prove the absence of any prior consent.[5]

Lack of Memory of the Event

The alleged victim's loss of memory of the event "is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period".[6] It can also permit, in combination with other evidence, the inference that alleged victim did not or was not capable of consenting.[7] While not strictly necessary, "expert evidence will almost always be essential" is such a case.[8]

A complainant with no memory can testify to their "pre-existing attitudes and assumptions" that they would not have consented to sexual activity at any time. That evidence can be used to make the inference that the complainant subjectively did not consent.[9]

  1. R v GF, 2021 SCC 20 (CanLII), per Karakatsanis J, at para 55
  2. GF, ibid., at para 57
  3. R v Haraldson, 2012 ABCA 147 (CanLII), 102 WCB (2d) 531, per curiam, at para 17
    R v Jensen, 1996 CanLII 1237 (ON CA), 106 CCC (3d) 430, per Rosenberg JA at 439
  4. Jensen, supra appeal to SCC quashed, 1997 CanLII 368 (SCC), [1997] 1 SCR 304, per Sopinka J
  5. R v Ashlee, 2006 ABCA 244 (CanLII), 212 CCC (3d) 477, per Paperny JA (2:1), at para 20
    Hutchison, supra
  6. R v JR, 2006 CanLII 22658 (ON SC), 40 CR (6th) 97, per T Ducharme J
    R v Cedeno, 2005 ONCJ 91 (CanLII), [2005] OJ No 1174 (C.J.), per Duncan J
  7. JR, ibid.
  8. JR, ibid.
  9. R v Garciacruz, 2015 ONCA 27 (CanLII), 320 CCC (3d) 414, per Rouleau JA, at para 69
    R v Kontzamanis, 2011 BCCA 184 (CanLII), per Kirkpatrick JA, at para 31

Broad Advanced Consent

It is impermissible for a judge to apply a "broad advanced consent" to find that the complainant agreed to figure sexual activity with an "undefined scope".[1]

For consent to be valid it must be:[2]

  • "linked to the sexual activity in question";
  1. "must exist at the time the activity occurs"; and
  • "it can be withdrawn at any time".
  1. R v Barton, 2019 SCC 33 (CanLII), [2019] 2 SCR 579, at para 99
    R v AE, 2022 SCC 4 (CanLII), per Moldaver J
  2. AE, ibid.

Unconsciousness

An unconscious person cannot provide consent in advance. Such a person is "incapable of consciously evaluating whether she is consenting is therefore not consensual". Consent requires an ongoing conscious consent throughout the sexual activity.[1]

If a victim is unconscious then the crown may prove lack of consent by circumstantial evidence. [2] While not required, for such evidence to be probative, some expert evidence is often necessary. [3]

As for capacity to consent, courts can infer a lack of capacity where there is direct evidence that:[4]

  1. the complainant was extremely intoxicated;
  2. the complainant was asleep or unconscious when the sexual touching commenced; or
  3. the complainant was asleep or unconscious during all of the sexual touching (BSB, supra, at para 45).
  1. R v JA, 2011 SCC 28 (CanLII), [2011] 2 SCR 440, per McLachlin CJ, at para 66
  2. R v JR, 2006 CanLII 22658 (ON SC), [2006] OJ No 2698 (S.C.), per T Ducharme J
  3. JR, ibid.
    R v BSB, 2008 BCSC 917 (CanLII), per Romilly J, affirmed 2009 BCCA 520 (CanLII), per Donald JA
  4. R v CA, 2010 YKSC 32 (CanLII), per Veale J

Intoxication

The capacity to consent requires more than simply the “baseline physical functions”.[1]

It is not so low as to render "relatively primitive actions such as walking a short distance, or unassisted vomiting" as being signs of capacity to consent.[2]

Drunkeness is not the same as incapacity.[3] Poor decision making, memory loss, or loss of inhibition or self-control due to alcohol does not negate consent.[4] An intoxicated complainant may still have the ability to consent.[5]

Where alcohol may have vitiated consent, it may be best established by way of expert evidence. But it is not necessary as a matter of law.[6]

Consent may be vitiated by abusing a position of trust, power or authority.[7]

Threats or abuse that occur after the event cannot go towards vitiation of consent.[8]

The judge may not make a finding that consent was "not possible" on the sole basis that the complainant was "drinking heavily".[9]

  1. R v Haraldson, 2012 ABCA 147 (CanLII), 102 WCB (2d) 531, per curiam, at para 7
  2. R v JWM, [2004] OJ No 1295 (S.C.)(*no CanLII links) , per Hill J
  3. R v Jensen, 1996 CanLII 1237 (ON CA), 106 CCC (3d) 430, per Rosenberg JA
  4. R v Merritt, [2004] OJ No 1295 (Ont. SCJ) (*no CanLII links)
  5. R v JR, 2006 CanLII 22658 (ON SC), CR (6th) 97 (Ont. SCJ), per T Ducharme J, at paras 17 to 19, 43
  6. R v Faulkner, 1997 CanLII 1193 (ON CA), 120 CCC (3d) 377, per Goudge JA
    Merritt, supra
    R v Hernandez, 1997 ABCA 297 (CanLII), [1997] AJ No 955, per Sulatycky JA
    R v Cedeno, 2005 ONCJ 91 (CanLII), 195 CCC (3d) 468, per Duncan J, at para 18
  7. R v Asfour, 2006 CanLII 577 (ON CA), 206 OAC 210, per Doherty JA
  8. Asfour, ibid.
  9. R v AW, 2008 NLCA 52 (CanLII), 856 APR 199, per Rowe JA

Abuse of Position of Trust (s. 265(3)(d) and 273.1(3)(c))

The term "exercise of authority" under s. 265(3)(d) is intended to capture relationships in which one party has "the power to influence the conduct and actions" of others.[1] However, influence "is a question of degree" whereby at some point "influence becomes coercion and a parent consent is nothing more than submission". it is when it becomes coercion that section 265(3)(d) is engaged.[2]

The accused will be in a position of authority when he "can coerce the complainant into consent by virtue of their relationship". [3] Such a relationship does not necessarily mean that lawful consent is impossible. Rather the Crown must prove beyond a reasonable doubt that the sexual activity was obtained by "the exercise of that coercive authority over the complainant".[4]

Section 273.1(3)(c) states "For the purpose of subsection (1), no consent is obtained if ...(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;"

The determination of whether the coercive exercise of authority vitiates consent requires considerations of elements including:[5]

  • the nature of the relationship
  • the specific circumstances surrounding the apparent consent
  • any other issues relevant to the assessment the nature of the relationship

The type of coercion suggested in s. 265(3) is not the same as that found in s. 273.1(2).[6]

Coercion under s. 265(3) addresses "consent obtained where the complainant submits or does not resist by reason" of the exercise of authority.[7]

Coercion under s. 273.1(2) include the use of "personal feelings and confidence engendered by that relationship to secure an apparent consent".[8]

Such positions of authority can include doctor-patient relationships or student-teacher relationships.[9]

  1. R v Matheson, 1999 CanLII 3719 (ON CA), 134 CCC (3d) 289, per Austin JA
  2. R v Geddes, 2015 ONCA 292 (CanLII), 322 CCC (3d) 414, per Doherty JA, at para 34
  3. Geddes, supra, at para 36 ("An accused stands in a position of authority over a complainant if the accused can coerce the complainant into consent by virtue of their relationship.")
  4. Geddes, supra, at para 36 ("The Crown must also prove beyond a reasonable doubt that the accused secured the complainant’s apparent consent to the sexual activity which is the subject matter of the charge by the exercise of that coercive authority over the complainant")
    R v Samkov, 2008 ONCA 192 (CanLII), [2008] OJ No 1005, per curiam, at para 7
    R v Farler, 2013 NSCA 13 (CanLII), 326 NSR (2d) 255, per Beveridge JA, at paras 77 to 78
  5. Geddes, supra, at para 37 ("The determination of whether apparent consent is vitiated by a coercive exercise of authority will require an examination of the nature of the relationship between the accused and the complainant, as well as the specific circumstances surrounding the apparent consent to the sexual activity in issue. There is no closed list of factors relevant to the assessment of the nature of the relationship and no one factor is necessarily determinative of the nature of the relationship. ")
  6. Hogg, supra
  7. Hogg, supra
  8. Hogg, supra
  9. Geddes, supra, at para 37

Fraud

In a sexual assault context, fraud will vitiate consent where an "objectively dishonest act" (i.e. falsehoods or failure to disclose) has "the effect of exposing the person consenting to a significant risk of serious bodily harm".[1] To be dishonest, the acts must be those that "a reasonable person would find them to be dishonest".[2]

Trivial harm or mere risk of harm is not sufficient to vitiate an otherwise consensual act.[3] Thus, "careful use of a condom might reduce risk" to a point that consent is not vitiated.[4]

The failure of the accused to disclose that they are HIV positive before sex can vitiate any consent for sex that the victim gave.[5]

Where "deception causes a misunderstanding as to the nature of the act itself there is no legally recognized consent because what happened is not that for which consent was given"[6]Consent that is not based on a knowledge of the significant relevant factors in not valid.[7]

  1. R v Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 SCR 371, per Cory J, at paras 14, 128
  2. Cuerrier, ibid. at 49
  3. Cuerrier, ibid., at para 128
  4. Cuerrier, ibid., at para 129
  5. Cuerrier, ibid.
    R v Mabior, 2012 SCC 47 (CanLII), [2012] 2 SCR 584, per McLachlin CJ
  6. Cuerrier, ibid., at para 99
  7. Cuerrier, supra, at para 127

Honest but Mistaken Belief in Consent

Capacity for Consent for Under 16 Years of Age

See Also

Honest But Mistaken Belief in Consent

This page was last substantively updated or reviewed January 2018. (Rev. # 79547)

General Principles

See also: Consent in Sexual Offences

The defence of honest but mistaken belief of consent creates a third alternative to the choice between whether the alleged victim consented to the sexual contact.

A believe in consent is a matter of the state of mind of the accused.[1] The defence of honest but mistaken belief "rests on the accused's subjective perception of that factual situation" of non-consent.[2]

At common law, the defence is a form of "mistake of fact", which if true, would have rendered the conduct lawful.[3]

The defence is available where there is evidence of a "denial of consent, lack of consent or incapacity to consent" which is interpreted as consent, as well as "evidence of ambiguity or equivocality" showing the possibility of mistaken belief without being wilfully blind or reckless.[4] Nor can it be "tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2".[5]

The defence is a denial of the mens rea of an offence of sexual assault.[6]

Thus, the defence requires:[7]

  1. evidence that the accused believed the complainant was consenting (ie. the belief must be held "honestly", considering the objective factors under s. 273.2(a))[8]
  2. evidence that the complainant in fact refused consent, did not consent, or was incapable of consenting; and
  3. evidence of a state of ambiguity which explains how lack of consent could have been honestly understood by the defendant as consent, assuming he was not wilfully blind or reckless to whether the complainant was consenting, that is, assuming that he paid appropriate attention to the need for consent and to whether she was consenting or not.

It is not sufficient to simply have a subjective belief of consent.[9]

Positive Evidence of Consent is Necessary

An accused cannot simply assert a belief in consent to raise the defence. It must be supported by the "some degree of other evidence or circumstances".[10]

Silence is Not Consent

It is not acceptable to rely on a "belief that silence, passivity or ambiguous conduct constitutes consent".[11] Such finding is a reversible error of law.[12]

  1. R v Dippel, 2011 ABCA 129 (CanLII), 281 CCC (3d) 33, per curiam, at para 13
    R v Nguyen, 2017 SKCA 30 (CanLII), 348 CCC (3d) 238, per Caldwell JA, at para 8
  2. R v Pappajohn, 1980 CanLII 13 (SCC), [1980] 2 SCR 120, per Dickson J (in dissent), at p. 157
    Nguyen, supra, at para 8
  3. R v Pappajohn, 1980 CanLII 13 (SCC), [1980] 2 SCR 120, per McIntyre J, at pp. 134, 139
    R v JA, 2011 SCC 28 (CanLII), [2011] 2 SCR 440, per McLachlin CJ, at para 48
  4. R v Esau, 1997 CanLII 312 (SCC), [1997] 2 SCR 777, per Major J, at paras 79, 88
    R v Davis, 1999 CanLII 638 (SCC), [1999] 3 SCR 759, per Lamer CJ, at para 86
    R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J, at para 65
  5. Ewanchuk, supra, at para 65
  6. Davis, supra, at para 80
  7. Davis, ibid., at paras 81, 86
    Esau, supra, per McLachlin J, at para 63 - in dissent, but affirmed by majority in Davis, at para 86, ("There must be evidence not only of non-consent and belief in consent, but in addition evidence capable of explaining how the accused could honestly have mistaken the complainant's lack of consent as consent. Otherwise, the defence cannot reasonably arise. There must, in short, be evidence of a situation of ambiguity in which the accused could honestly have misapprehended that the complainant was consenting to the sexual activity in question. ")
    R v Delacruz, 2016 ABQB 187 (CanLII), AJ No 311, per Ross J, at para 87
  8. Nguyen, supra, at para 10
  9. Ewanchuk, supra, at paras 46, 47
  10. R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per Cory J, at para 139 ("The bare assertion by the accused that he believed in consent is not enough to raise the defence of honest but mistaken belief. The assertion must be “supported to some degree by other evidence or circumstances”:... . The support may come from the accused or some other sources; on this point I agree with Cory J’s resolution of the confusion which existed in the earlier cases. But the support must exist. As Lord Morris of Borth-y-Gest put it, a “facile mouthing of some easy phrase of excuse will not suffice” (citation omitted).")
  11. Ewanchuk, ibid., at para 51
  12. R v M(ML), 1994 CanLII 77 (SCC), [1994] 2 SCR 3, per Sopinka J

Reasonable Steps

The accused must have taken "reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question".[1]

What constitutes "reasonable steps depends on the particulars circumstances of the case".[2]

This inquiry by the accused into consent is to occur before the sexual act commences.[3] Escalation in the sexual activity requires further inquiry.[4]

The court must ascertain "the circumstances known to the accused" at the time and then ask whether "a reasonable man was aware of the same circumstances" would have taken further steps before proceeding.[5]

The assessment is from an "objective point of view" but one that is "informed by the circumstances subjectively known to the accused".[6]

This defence is available in circumstances where the victim was unconscious, asleep or otherwise incapable of consenting but appeared awake and to consent from the perspective of the accused.[7]

  1. R v JA, 2011 SCC 28 (CanLII), [2011] 2 SCR 440, per McLachlin CJ, at para 48
  2. R v Crangle, 2010 ONCA 451 (CanLII), 256 CCC (3d) 234, per Goudge JA, at para 29 leave to SCC refused, [2010] SCCA 300
  3. Darrach, supra, at para 90
  4. R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J, at para 99
  5. R v Malcolm, 2000 MBCA 77 (CanLII), 147 CCC (3d) 34, per Helper JA, at para 24, leave to SCC refused
  6. R v Alboukhari, 2013 ONCA 581 (CanLII), 310 OAC 305, per Epstein JA, at para 42
    R v RG, 1994 CanLII 8752 (BC CA), 38 CR (4th) 123{{perBCCA}|Wood JA}}, at para 29
  7. R v Crespo, 2016 ONCA 454 (CanLII), 337 CCC (3d) 439, per Miller JA, at para 11
    R v Esau, 1997 CanLII 312 (SCC), [1997] 2 SCR 777, per Major JA, at paras 17 to 25

Irreconcilable Versions of Events

Where there are diametrically opposite versions of events between the victim's evidence and the accused's evidence are not collectively reconcilable, then the case is determined by conventional credibility analysis and mistaken belief of consent is not to be put to the jury.[1]

  1. R v Davis, 1999 CanLII 638 (SCC), [1999] 3 SCR 759, per Lamer CJ, at para 85
    R v Somers, 2009 ONCA 567 (CanLII), per curiam

Procedural Considerations

There must first be an "air of reality" before the defence can be considered.[1]

In almost all cases, the accused will have to testify to establish a mistaken belief.[2]

  1. R v Davis, 1999 CanLII 638 (SCC), [1999] 3 SCR 759, per Lamer CJ, at para 81
    R v Barton, 2017 ABCA 216 (CanLII), 354 CCC (3d) 245, per curiam, at paras 240 to 264
  2. R v Slater, 2005 SKCA 87 (CanLII), 201 CCC (3d) 85, per Jackson JA
    R v Ross, 2012 NSCA 56 (CanLII), 290 CCC (3d) 555, per Bryson JA

Age of Consent in Sexual Offences

This page was last substantively updated or reviewed January 2020. (Rev. # 79547)

General Principles

See also: Consent in Sexual Offences and Sexual Assault (Offence)

The lawfulness of sexual acts between persons will often depend on the presence of proper consent. The law deems persons of certain age unable to consent. What age applies will vary in some circumstances on the age of the adult participant.

Section 150.1 sets out the rules regarding the age of consent as it relates to sexual act and the criminalization of these acts. The statutory exemptions to criminal sexual acts found under s. 150.1 apply to certain situations that would otherwise make out one or more of the follow sex offences:

The key rules are essentially as follows:

  • Persons who are 12 or 13 can consent to sex with persons no more than two years their elder and not in a position of trust (s. 150.1(2))
  • Persons who are 14 or 15 can consent to sex with persons no more than five years their elder and not in a position of trust. Or they can consent if married. (s. 150.1(2.1))
  • Persons aged 16 and above can consent as an adult.
Consent no defence

150.1 (1) Subject to subsections (2) to (2.2) , when an accused is charged with an offence under section 151 [sexual interference] or 152 [invitation to sexual touching] or subsection 153(1) [sexual exploitation], 160(3) [bestiality in presence of or by child] or 173(2) [exposure to person under 16] or is charged with an offence under section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault] in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

Exception — complainant aged 12 or 13

(2) When an accused is charged with an offence under section 151 [sexual interference] or 152 [invitation to sexual touching], subsection 173(2) [exposure to person under 16] or section 271 [sexual assault] in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than two years older than the complainant; and
(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
Exception — complainant aged 14 or 15

(2.1) If an accused is charged with an offence under section 151 [sexual interference] or 152 [invitation to sexual touching], subsection 173(2) [exposure to person under 16] or section 271 [sexual assault] in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than five years older than the complainant; and
(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
Exception for transitional purposes

(2.2) When the accused referred to in subsection (2.1) [consent in sexual offences – exception for complainant aged 14 or 15] is five or more years older than the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if, on the day on which this subsection comes into force,

(a) the accused is the common-law partner of the complainant, or has been cohabiting with the complainant in a conjugal relationship for a period of less than one year and they have had or are expecting to have a child as a result of the relationship; and
(b) the accused is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
Exception for transitional purposes

(2.3) If, immediately before the day on which this subsection comes into force, the accused referred to in subsection (2.1) [consent in sexual offences – exception for complainant aged 14 or 15] is married to the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge.

Exemption for accused aged twelve or thirteen

(3) No person aged twelve or thirteen years shall be tried for an offence under section 151 [sexual interference] or 152 [invitation to sexual touching] or subsection 173(2) [exposure to person under 16] unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.
[omitted (4), (5) and (6)]
R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 2; 2008, c. 6, ss. 13, 54; 2014, c. 25, s. 4; 2015, c. 29, s. 6; 2019, c. 25, s. 51.
[annotation(s) added]

CCC


Note up: 150.1(1), (2), (2.1), (2.2), (2.3), and (3)

Consent Under the Age of 16

Consent cannot be used where the complainant is under the age of 16 except in very limited circumstances. (s.150.1) The accused can justify consent by establishing that they believed the complainant was at least 16 years old where all reasonable steps to ascertain age was taken.(s. 150.1(4)) However, the onus rests on the Crown to establish beyond a reasonable doubt that the steps were not taken. [1]

Age of consent.jpg

All Reasonable Steps

See also: Due Diligence

What constitutes "all reasonable steps" is highly context specific and will vary on the circumstances.[1]

The requirement under 150.1(4) requiring that "all reasonable steps" be taken to ascertain age suggests an "inquiry akin to a due diligence inquiry", however, there is no onus upon the accused.[2]

150.1
[omitted (1), (2), (2.1), (2.2), (2.3) and (3)]

Mistake of age

(4) It is not a defence to a charge under section 151 [sexual interference] or 152 [invitation to sexual touching], subsection 160(3) [bestiality in presence of or by child] or 173(2) [exposure to person under 16], or section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault] that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

Idem

(5) It is not a defence to a charge under section 153 [sexual exploitation], 159 [anal intercourse], 170 [parent or guardian procuring sexual activity], 171 [parent or guardian procuring sexual activity] or 172 [corrupting children] or subsection 286.1(2) [comm. to obtain sexual services for consideration – person under 18], 286.2(2) [material benefit from sexual services provided — person under 18] or 286.3(2) [procuring — person under 18] that the accused believed that the complainant was 18 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

Mistake of age

(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) [consent in sexual offences – exception for complainant aged 12 or 13] or (2.1) [consent in sexual offences – exception for complainant aged 14 or 15] unless the accused took all reasonable steps to ascertain the age of the complainant.

R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 2; 2008, c. 6, ss. 13, 54; 2014, c. 25, s. 4; 2015, c. 29, s. 6; 2019, c. 25, s. 51.
[annotation(s) added]

CCC


Note up: 150.1(4), (5) and (6)

Section 150.1(4) is only available where:[3]

  1. the accused had "an honest belief that the complainant was 16 years of age or older; and
  2. he "took all reasonable steps to ascertain the age of the complainant".

An inquiry should be made into whether a reasonable person would have taken the steps taken by the accused to ascertain age.[4]

Burden

The onus is on the Crown to prove beyond a reasonable doubt that the steps were insufficient.[5] There is no burden on the accused.[6]

Interpretation

"All reasonable steps" requires at a minimum, an "earnest inquiry or something that obviates the need for such an inquiry".[7]

The requirement for all reasonable steps is more than a "casual" one.[8]

Only information that is known to the accused in advance of the encounter at issue should be considered in the analysis.[9]

It is recognized that people online regularly misrepresent themselves online, including age. This creates "all the more reason" to take additional steps to ascertain the real age of the person they are communicating with.[10]

Asking Complainant's Age

It is not necessarily fatal to a defence for the accused to fail to ask the complainant of her age.[11] But it is a "relevant to the inquiry as to whether or not all reasonable steps have been taken".[12]

  1. R v Duran, 2013 ONCA 343 (CanLII), 3 CR (7th) 274, per Laskin JA, at para 52
    R v Dragos, 2012 ONCA 538 (CanLII), 291 CCC (3d) 350, per Cronk JA, at para 32
  2. R v Saliba, 2013 ONCA 661 (CanLII), 304 CCC (3d) 133, per Doherty JA, at para 28
  3. R v Gashikanyi, 2015 ABCA 1 (CanLII), 16 CR (7th) 369, per curiam, at para 14
  4. Saliba, supra, at para 28
  5. Saliba, supra, at para 28
    R v Duran, 2013 ONCA 343 (CanLII), 3 CR (7th) 274, per Laskin JA, at para 54
  6. Saliba, supra, at para 28
  7. Gashikanyi, supra, at para 14
  8. R v Mastel, 2011 SKCA 16 (CanLII), 268 CCC (3d) 224, per Lane JA, at para 21
    R v Osborne, 1992 CanLII 7117 (NL CA), 17 CR (4th) 350, per Goodridge CJ, at para 62
    R v George, 2016 SKCA 155 (CanLII), 344 CCC (3d) 543, per Richards CJ, at para 29
  9. R v Clarke, 2016 SKCA 80 (CanLII), 338 CCC (3d) 83, per curiam, at para 75
    George, supra, at para 33
  10. R v Rayo, 2017 QCCQ 128 (CanLII), per Vanchestein J
    R v Beckford, 2016 ONSC 1066 (CanLII), per Goldstein J
    R v Clarke, 2016 SKCA 80 (CanLII), 338 CCC (3d) 83, per curiam
    R v ZID, 2012 BCPC 570 (CanLII), per Bayliff J
  11. Gashikanyi, supra, at para 17
    George, supra, at para 30
    R v RAK, 1996 CanLII 7277 (NB CA), 175 NBR (2d) 225, 106 CCC (3d) 93, per Hoyt CJ (3:0) at 96
  12. Gashikanyi, supra, at para 17

Indicia of Reasonable Steps

Certain factors to consider include:[1]

  1. the complainant’s physical appearance;
  2. the complainant’s behaviour;
  3. the ages and appearances of others in whose company the complainant is found;
  4. the activities in which the complainant was engaged; and
  5. the times, places and other circumstances in which the accused observed the complainant and the complainant’s conduct.
  1. R v Slater, 2005 SKCA 87 (CanLII), 201 CCC (3d) 85, per Jackson JA (3:0) , at para 29
    R v LTP, 1997 CanLII 12464 (BC CA), 113 CCC (3d) 42, per Finch JA (3:0) , at para 20
    R v George, 2016 SKCA 155 (CanLII), 344 CCC (3d) 543, per Richards CJ, at para 31

Abandonment (Defence)

This page was last substantively updated or reviewed May 2021. (Rev. # 79547)

General Principles

The defence of abandonment is available to accused liable as parties of an offence under s. 21(1) or 21(2), were two or more persons form a common intention to carry out an offence, such that they are not responsible for the offences committed by the other parties.

The purpose of this defence is to ensure that only those morally culpable are convicted and to encourage persons to withdraw from criminal activities and report them.[1]

Test

The basic common law test requires:[2]

  1. there must be a change of intention and physical change of place;
  2. where practicable and reasonable, timely communication of the intention to abandon the common purpose to those who desire to continue in it.[3]
  3. communication, verbal or otherwise, must be unequivocal notice upon the other party such that if the other proceeds he does so without the further aid and assistance of those who withdraw.
  4. that the accused took, in a manner proportional to his or her participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of the offence.[4]

What amounts to abandonment will depend on the circumstances of each case.[5]

Timing

Abandonment must occur before the offence takes place.[6]

Communication

A failure to provide clear and timely communication will likely defeat the defence.[7]

The manner of communicating the abandonment will depend on how deeply involved the accused was in the joint enterprise. The more peripheral the involvement the less express the language of behaviour needs to be.[8]

Procedure

It is often necessary that that the accused testify to explain his intentions.[9]

Whether a person withdraws or abandons the offence is a question of fact.[10]

Parties

There is suggestion that abandonment may be available to those who are aiders or abetters.[11]

Specific Offences

Where group have jointly planned to commit rape and murder and the accused assisted in the initial part of the illegal plan but then leaves part way through does not abandon the offence and can still be convicted of murder.[12]

A party who abandons a planned robbery but was the one who provided the others with guns can be liable for the murder arising from the robbery.[13]

  1. R v Gauthier, 2013 SCC 32 (CanLII), [2013] 2 SCR 403, per Wagner J, at para 50
  2. R v KKP, 2006 ABCA 299 (CanLII), 213 CCC (3d) 530, per curiam, at para 12
    Gauthier, supra, at para 34 and 38 and 50
    R v SRB, 2009 ABCA 45 (CanLII), 243 CCC (3d) 419, per Berger JA, at para 10 reversed on appeal
  3. SRB, ibid., at para 24 per dissent, dissent aff'd on appeal R v Bird, 2009 SCC 60 (CanLII), 469 AR 185, per curiam ("change of intention on the part of the accused and, where practical and reasonable, a timely communication of the accused’s intention to abandon the common unlawful purpose")
  4. Gauthier, supra added this last element, see, at para 50
  5. KKP, supra, at para 12
  6. Miller, supra
    KKP, supra, at para 12
  7. e.g. KKP, supra, at para 14
    R v Miller, 1976 CanLII 12 (SCC), [1977] 2 SCR 680, per curiam at 708
    R v Fournier, 2002 NBCA 71 (CanLII), 173 CCC (3d) 566, per Larlee JA, at para 22
  8. SRB, supra, at para 19
  9. KKP, supra, at para 14
  10. KKP, supra, at para 11
  11. R v Ball, 2011 BCCA 11 (CanLII), 267 CCC (3d) 532, per Ryan J, at para 46
  12. R v SRB, 2009 ABCA 45 (CanLII), 243 CCC (3d) 419, per Berger JA overturned on appeal R v Bird, 2009 SCC 60 (CanLII), [2009] 3 SCR 638, per curiam
  13. R v Joyce, 1978 CanLII 2422 (BC CA), 42 CCC (2d) 141, per Hinkson JA

See Also

Innocent Possession

General Principles

The doctrine of "innocent possession" is a potential defence to possession of child pornography. The doctrine is a "public duty defence" which permits possession for lawful purposes such as delivering it to authorities.[1] It also excuses possession where it is for the sole purpose of immediately destroying the materials or placing them beyond his control.[2]

By establishing this limited intention, there will be an absence of a blameworthy state of mind or blameworthy conduct. Mere technical findings of knowledge and control should not constitute possession.[3]

Innocent possession will generally not apply where the created and access dates of the deleted files show evidence that the user knowingly storing the files for a period of time before deleting them. Further evidence of selective deleting of files shows an intent to sort rather than destroy.[4]

  1. R v Loukas, 2006 ONCJ 219 (CanLII), [2006] OJ No 2405 (Ont. C.J.), per M Green J - discussing drug possession
    R v Chalk, 2007 ONCA 815 (CanLII), 227 CCC (3d) 141, per Doherty JA, at para 24
  2. R v Braudy, 2009 CanLII 2491 (ON SC), per Stinson J, at para 92 citing Chalk, at para 23
  3. Chalk, supra, at para 24
  4. See e.g. Braudy, supra, at paras 93 and 94

See Also

Colour of Right

This page was last substantively updated or reviewed January 2017. (Rev. # 79547)

General Principles

A colour of right is a defence to certain property-related offences. It is an honest belief on the part of the accused that they had a right to possess certain property, despite that there was no true basis for the belief in fact or law.[1] This does not include mere belief in a moral entitlement to the property[2] This can also apply as a form of "mistake of fact" where there is an honest but mistaken belief in facts, which if true, would have justified or excused the offence.[3]

Must Act Honestly and in Good Faith

"Colour of right" refers to "an assertion of a proprietary or possessory right to the thing". An "honest" belief in a claim to the property is not without the "colour of right" irrespective of whether there was a mistake of fact or law.[4] Where the accuse asserts a mistaken belief the requirement is "merely a particular application of the doctrine of mistake of fact."[5]

The Crown must prove that the accused acted "without colour of right" and must be acting dishonestly and in bad faith.[6]

Applicable Offences

Colour of right defence applies for offences of theft under s. 322, break and enter as well as other property-related offences.[7]

Colour of Right and Mens Rea

There are some who see colour of right being a negation of the mens rea of the offence rather than a formal defence to the offence.[8]

Onus or Burden of Proof

The onus is upon the accused to establish an air of reality to the defence. Only then does the burden move the to Crown to disprove beyond a reasonable doubt.[9]

  1. R v Howson, 1966 CanLII 285 (ON CA), 3 CCC 348, per Porter CJ
    R v Dorosh, 2003 SKCA 134 (CanLII), 183 CCC 224, per Bayda CJ
    R v Simpson, 2015 SCC 40 (CanLII), 21 CR (7th) 225, per Moldaver J, at para 31 ("an honest belief in a state of facts which, if true, would at law justify or excuse the act done")
  2. R v Hardimon (1979), NSR 232 (NSCA)(*no CanLII links)
  3. Simpson, supra, at para 31
  4. R v DeMarco, 1973 CanLII 1542 (ON CA), [1973] OJ No 533, per Martin JA, at paras 7 to 10
    Howson, supra
    R v Manuel, 2008 BCCA 143 (CanLII), 231 CCC (3d) 468, per Levine JA, at para 10 (colour of right is “an honest belief in a state of facts or civil law which, if it existed, would negate the mens rea for the offence”)
    R v Hudson, 2014 BCCA 87 (CanLII), per Frankel JA
  5. DeMarco, supra
  6. R v Parent, 2010 QCCQ 82 (CanLII), per Bonin J -- accused used CPIC account to get licence plate info which ended up in hands of criminals.
  7. Simpson, supra, at para 31
  8. e.g. R v Thomas, 2016 BCPC 391 (CanLII), per Woods J, at para 11
  9. Simpson, supra, at para 32

Offences

The offences which involve consideration of colour of right include:

Offence-specific Defences

Defamatory Libel Defences

Sale of Books

Selling book containing defamatory libel

304 (1) No person shall be deemed to publish a defamatory libel by reason only that he sells a book, magazine, pamphlet or other thing, other than a newspaper that contains defamatory matter, if, at the time of the sale, he does not know that it contains the defamatory matter.

Sale by servant

(2) Where a servant, in the course of his employment, sells a book, magazine, pamphlet or other thing, other than a newspaper, the employer shall be deemed not to publish any defamatory matter contained therein unless it is proved that the employer authorized the sale knowing that

(a) defamatory matter was contained therein; or
(b) defamatory matter was habitually contained therein, in the case of a periodical.

R.S., c. C-34, s. 268.

CCC


Note up: 304(1) and (2)

Court Proceedings

Publishing proceedings of courts of justice

305. No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter

(a) in a proceeding held before or under the authority of a court exercising judicial authority; or
(b) in an inquiry made under the authority of an Act or by order of Her Majesty, or under the authority of a public department or a department of the government of a province.

R.S., c. C-34, s. 269.

CCC


Note up: 305

Parliamentary Business

Parliamentary papers

306. No person shall be deemed to publish a defamatory libel by reason only that he

(a) publishes to the Senate or House of Commons or to the legislature of a province defamatory matter contained in a petition to the Senate or House of Commons or to the legislature of a province, as the case may be;
(b) publishes by order or under the authority of the Senate or House of Commons or of the legislature of a province a paper containing defamatory matter; or
(c) publishes, in good faith and without ill-will to the person defamed, an extract from or abstract of a petition or paper mentioned in paragraph (a) or (b).

R.S., c. C-34, s. 270.

CCC


Note up: 306

Fair reports of parliamentary or judicial proceedings

307 (1) No person shall be deemed to publish a defamatory libel by reason only that he publishes in good faith, for the information of the public, a fair report of the proceedings of the Senate or House of Commons or the legislature of a province, or a committee thereof, or of the public proceedings before a court exercising judicial authority, or publishes, in good faith, any fair comment on any such proceedings.

Divorce proceedings an exception

(2) This section does not apply to a person who publishes a report of evidence taken or offered in any proceeding before the Senate or House of Commons or any committee thereof, on a petition or bill relating to any matter of marriage or divorce, if the report is published without authority from or leave of the House in which the proceeding is held or is contrary to any rule, order or practice of that House.
R.S., c. C-34, s. 271.

CCC


Note up: 307(1) and (2)

Fair Reporting

Fair report of public meeting

308. No person shall be deemed to publish a defamatory libel by reason only that he publishes in good faith, in a newspaper, a fair report of the proceedings of any public meeting if

(a) the meeting is lawfully convened for a lawful purpose and is open to the public;
(b) the report is fair and accurate;
(c) the publication of the matter complained of is for the public benefit; and
(d) he does not refuse to publish in a conspicuous place in the newspaper a reasonable explanation or contradiction by the person defamed in respect of the defamatory matter.

R.S., c. C-34, s. 272.

CCC


Note up: 308

Public Benefit

Public benefit

309. No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter that, on reasonable grounds, he believes is true, and that is relevant to any subject of public interest, the public discussion of which is for the public benefit.
R.S., c. C-34, s. 273.

CCC


Note up: 309

Fair Comment

Fair comment on public person or work of art

310. No person shall be deemed to publish a defamatory libel by reason only that he publishes fair comments

(a) on the public conduct of a person who takes part in public affairs; or
(b) on a published book or other literary production, or on any composition or work of art or performance publicly exhibited, or on any other communication made to the public on any subject, if the comments are confined to criticism thereof.

R.S., c. C-34, s. 274.

CCC


Note up: 310

Truth

When truth a defence

311. No person shall be deemed to publish a defamatory libel where he proves that the publication of the defamatory matter in the manner in which it was published was for the public benefit at the time when it was published and that the matter itself was true.
R.S., c. C-34, s. 275.

CCC


Note up: 311

Necessity or Invitation

Publication invited or necessary

312. No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter

(a) on the invitation or challenge of the person in respect of whom it is published, or
(b) that it is necessary to publish in order to refute defamatory matter published in respect of him by another person,

if he believes that the defamatory matter is true and it is relevant to the invitation, challenge or necessary refutation, as the case may be, and does not in any respect exceed what is reasonably sufficient in the circumstances.
R.S., c. C-34, s. 276.

CCC


Note up: 312


Answer to Inquiries

Answer to inquiries

313. No person shall be deemed to publish a defamatory libel by reason only that he publishes, in answer to inquiries made to him, defamatory matter relating to a subject-matter in respect of which the person by whom or on whose behalf the inquiries are made has an interest in knowing the truth or who, on reasonable grounds, the person who publishes the defamatory matter believes has such an interest, if

(a) the matter is published, in good faith, for the purpose of giving information in answer to the inquiries;
(b) the person who publishes the defamatory matter believes that it is true;
(c) the defamatory matter is relevant to the inquiries; and
(d) the defamatory matter does not in any respect exceed what is reasonably sufficient in the circumstances.

R.S., c. C-34, s. 277.

CCC


Note up: 313

To Persons Interested

Giving information to person interested

314. No person shall be deemed to publish a defamatory libel by reason only that he publishes to another person defamatory matter for the purpose of giving information to that person with respect to a subject-matter in which the person to whom the information is given has, or is believed on reasonable grounds by the person who gives it to have, an interest in knowing the truth with respect to that subject-matter if

(a) the conduct of the person who gives the information is reasonable in the circumstances;
(b) the defamatory matter is relevant to the subject-matter; and
(c) the defamatory matter is true, or if it is not true, is made without ill-will toward the person who is defamed and is made in the belief, on reasonable grounds, that it is true.

R.S., c. C-34, s. 278.

CCC


Note up: 314

Good Faith Redress

Publication in good faith for redress of wrong

315. No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter in good faith for the purpose of seeking remedy or redress for a private or public wrong or grievance from a person who has, or who on reasonable grounds he believes has, the right or is under an obligation to remedy or redress the wrong or grievance, if

(a) he believes that the defamatory matter is true;
(b) the defamatory matter is relevant to the remedy or redress that is sought; and
(c) the defamatory matter does not in any respect exceed what is reasonably sufficient in the circumstances.

R.S., c. C-34, s. 279.

CCC


Note up: 315

Proof of Parliamentary Proceedings

Proving publication by order of legislature

316 (1) An accused who is alleged to have published a defamatory libel may, at any stage of the proceedings, adduce evidence to prove that the matter that is alleged to be defamatory was contained in a paper published by order or under the authority of the Senate or House of Commons or the legislature of a province.

Directing verdict

(2) Where at any stage in proceedings referred to in subsection (1) [proving publication by order of legislature] the court, judge, justice or provincial court judge is satisfied that the matter alleged to be defamatory was contained in a paper published by order or under the authority of the Senate or House of Commons or the legislature of a province, he shall direct a verdict of not guilty to be entered and shall discharge the accused.

Certificate of order

(3) For the purposes of this section, a certificate under the hand of the Speaker or clerk of the Senate or House of Commons or the legislature of a province to the effect that the matter that is alleged to be defamatory was contained in a paper published by order or under the authority of the Senate, House of Commons or the legislature of a province, as the case may be, is conclusive evidence thereof.
R.S., 1985, c. C-46, s. 316; R.S., 1985, c. 27 (1st Supp.), s. 203.
[annotation(s) added]

CCC


Note up: 316(1), (2) and (3)

Child Pornography Defences

This page was last substantively updated or reviewed July 2021. (Rev. # 79547)

Defences Generally

There are two statutory defences and one common law defence. All the defences under s. 163.1 should be "liberally construed".[1]

  1. R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, at paras 60, 73

Reasonable Belief of Age

See also: Consent in Sexual Offences

In an offence for making child pornography under s. 163.1(2), the accused may not rely upon a mistaken belief of age unless reasonable steps are taken.

s. 163.1
[omitted (1), (2), (3), (4), (4.1), (4.2) and (4.3)]

Defence

(5) It is not a defence to a charge under subsection (2) [making child pornography] in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was or was depicted as being eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person and took all reasonable steps to ensure that, where the person was eighteen years of age or more, the representation did not depict that person as being under the age of eighteen years.
[omitted (6) and (7)]
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.
[annotation(s) added]

CCC


Note up: 163.1(5)

Public Good Defence

See also: Obscenity (Offence)

There is an exception where the otherwise criminal conduct is for an enumerated public good and does not pose an undue risk of harm to persons under the age of 18. Section 163.1(6):

163.1
[omitted (1), (2), (3), (4), (4.1), (4.2), (4.3) and (5)]

Defence

(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence

(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.

[omitted (7)]
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.

CCC


Note up: 163.1(6)

The starting point of the law acknowledges that any materials captured by s. 163.1(1) is "inherently harmful".[1]

Requirements of s. 163.1(6)

The defence set out in s.163.1(6) involves two elements, but of which must be independently satisfied.[2] The lack of "undue risk" must only be considered if the object of the material is "tied to one of the four legitimate purposes found in s. 163.1(6)(a).[3]

First, the court must consider whether there is any doubt that the accused subjectively had good faith reason for possessing child pornography for the reasons listed (administration of justice or to science, medicine, education or art).[4] It must also determine whether, "based on all of the circumstances, a reasonable person would conclude that (1) there is an objective connection between the accused’s actions and his or her purpose, and (2) there is an objective relationship between his or her purpose and one of the protected activities (administration of justice, science, medicine, education or art)."[5]

The test has been articulated as requiring consideration of: [6]

  • whether the accused "had a genuine, good faith reason for dealing with the child pornography in question in the manner they did?"
  • whether the reasons are listed in 163.1(6)
  • whether "the accused’s actions objectively connected to his or her stated reason for dealing with the child pornography?"
  • if so, whether "there [is] an objective connection between that stated purpose and one of the protected activities in subsection (6)?"
  • if all the answers above are affirmative, whether the accused’s actions poses a risk to persons under 18, which involves considering:
    • whether the risk is "significant" (more than "trivial or passing");
    • whether the risk is “objectively ascertainable” (ie. risk is clear to the reasonable person based on commonly-available information).

Legitimate Purposes

The legitimate purpose requirement directs the court to consider, "based on all of the circumstances", that a "reasonable person" would conclude that:[7]

  1. there is an objectively verifiable connection between the accused’s actions and the [legitimate] purpose; and
  2. whether there is an objective relationship between the accused’s purpose and one of the protected activities
Education

"Education" can include "the education that parents may want to impart to their children in specific circumstances”, which can encompass a father holding onto a discovered child pornographic video created by the daughter in anticipation that the daughter would voluntarily admit her doings to her mother.[8]

When making an objective assessment of whether there is a legitimate purpose, the court should not assess the "value" of the activity.[9]

It is not a defence to say that the text messages that constitute child pornography were done as "a joke". This only implicates motive and not intent to commit the offence.[10]

Administration of Justice

The Crown obligation to provide disclosure of child pornographic materials will be protected under s. 163.1(6) as it relates to the administration of justice.[11]

It is recognized that police, counsel, expert witnesses and court staff must be permitted to possess child pornography so long as it is done for legitimate purposes.[12] It would be rare for there to be necessity for anyone in the administration of justice to create child pornography.[13]

Art

Self-created works of imagination intended for solely private use implicates s. 2(b) expression rights of self-fulfillment, self-actualization, and dignity.[14]

Courts are considered ill-equipped to determine whether art is "good" or not.[15] Art should include any "expression that may reasonably be viewed as art" as “[a]ny objectively established artistic value, however small, suffices to support the defence”.[16]

  1. R v McSween, 2020 ONCA 343 (CanLII), per Trotter JA, at para 62 R v Schacter, 2018 ONCJ 371 (CanLII), per Chapman J, at para 38
  2. R v Katigbak, 2011 SCC 48 (CanLII), [2011] 3 SCR 326(V), per McLachlin CJ and Charron J, at para 56
  3. R v McSween, 2020 ONCA 343 (CanLII), per Trotter JA, at para 61
  4. Katigbak, supra, at paras 57, 58
  5. Katigbak, ibid., at para 60
  6. R v Jeffrey, 2012 SKPC 12 (CanLII), 383 Sask R 287, per Agnew J, at para 31
  7. R v Katigbak, 2011 SCC 48 (CanLII), [2011] 3 SCR 326(V), per McLachlin CJ and Charron J, at para 60
    R v Mellor, 2020 ONSC 4820 (CanLII), per Dennison J, at para 70
  8. see RL v R, 2009 QCCA 546 (CanLII), RJQ 669, per Dutil JA, esp. para 53
  9. Katigbak, supra, at para 61
  10. R v McSween, 2020 ONCA 343 (CanLII), per Trotter JA, at para 86 ("The respondent’s claim that he was joking in his text messages is not a denial of intent; it is an assertion of lack of motive. There is no presumption at common law that requires the Crown to prove a particular motive or ulterior purpose on the part of the accused.")
  11. R v Blencowe, 1997 CanLII 12287 (ON SC), [1997] OJ No 3619 (ONSC), per Watt J
  12. R v Vander Leeuw, 2021 ABCA 61 (CanLII), per curiam, at para 58
  13. Vander Leeuw, ibid., at para 58
  14. R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, at para 107
  15. Katigbak, supra, at paras 61 to 65
  16. Katigbak, supra, at para 63
    Mellor, supra, at para 71

Undue Risk

Harm to Persons

The harm to be considered includes physical, psychological, or both.[1]

  1. R v Katigbak, 2011 SCC 48 (CanLII), [2011] 3 SCR 326(V), per McLachlin CJ and Charron J, at paras 66 to 67

History

Public Good Defence (Pre-November 1, 2005)

Sections 163.1(6) and (7) came into force on November 1, 2005.[1] Prior to the 2005 amendments, there was a common law defence for possession for the "public good". The public good was defined as "necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, or art, or other objects of general interest"[2]. This was found to include possession "by people in the justice system for purposes associated with prosecution, by researchers studying the effects of exposure to child pornography, and by those in possession of works addressing the political or philosophical aspects of child pornography"[3]

See also

The offence of Corrupting Morals has a "public good" defence as well.

  1. An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 2005, c. 32 (Bill C-2)
    see List of Criminal Code Amendments
  2. Sharpe, supra, at para 70
  3. Sharpe, ibid., at para 70

Private Use Defence

Accidental Download

It is not necessary for the crown to establish intentional downloading to establish possession. The accused must have 1) knowledge of the character of the object, 2) knowingly put or keeps the object in a place and 3) intends to have the object in the place for his or another person's benefit.[1]

Where there is evidence of intentional downloading, the Crown can rely on the presumption that "one intends the consequences of one's actions".[2]

In order to rely upon inadvertence the defence must adduce some evidence supporting this, rather than simply speculating.[3]

The number of CP files present on the computer will weigh against the conclusion of accidental downloading. Larger numbers will, in fact, permit the inference of "actively searching and downloading files".[4] Likewise, the manner in which the files were stored will also contribute to rebutting the conclusion[5] as well as the number of places in which the pornography was saved.[6]

The presence of search terms that relate to child pornography is evidence that can rebut the claims of accidental download.[7]

Identical creation and access dates can be consistent with inadvertent download.[8]

  1. R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at paras 15 to 38
  2. R v Missions, 2005 NSCA 82 (CanLII), 196 CCC (3d) 253, per Roscoe JA, at para 21
    R v Braudy, 2009 CanLII 2491 (ON SC), per Sinson J, at para 55
  3. R v Jenner, 2005 MBCA 44 (CanLII), 195 CCC (3d) 364, per Monnin JA, at para 21
    Missions, supra, at para 21
  4. R v Pelich, 2012 ONSC 3611 (CanLII), 103 WCB (2d) 295, per Dunnet J, at para 72
    e.g. R v Smith, 2008 CanLII 59107 (ON SC), [2008] OJ No 4558 (S.C.), per Clark J, at para 28 - judge dismisses first-time accidental download claim
  5. e.g. Smith, supra, at para 28
  6. Missions, supra, at paras 22, 27
  7. e.g. R v Gilbert, 2015 NSSC 69 (CanLII), per Murphy J
    R v Clarke, 2016 CanLII 874 (NL PC), per Porter J
  8. R v Garbett, 2010 ONSC 2762 (CanLII), 255 CCC (3d) 212, per Tulloch J, at para 64

Innocent Possession/Possession With Intent to Destroy

See Also

Child Pornography Private Use Defence

This page was last substantively updated or reviewed January 2021. (Rev. # 79547)

General Principles

See also: Definition of Child Pornography and Child Pornography Defences
Constitutional Exemption

There is a constitutional exemption for the class of materials that are for private use.[1] This consists of:[2]

  1. Self-created expressive material: i.e., any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and
  2. Private recording of lawful sexual activity: i.e. any visual recording created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.

The only persons who can possess CP under the private use exception is the “creator and the persons depicted therein.”[3]

The interpretation of “private use” is not a strict “bright line” and can include passing on materials for safe-keeping.[4]

Requirement of Nominal Risk

The defence is only applicable to "expressive conduct" that is of "nominal risk" to children.[5]

The defence applies only where "the potential for its harmful use by others minimal."[6]

Basis for Exemption

The exemption is derived from s. 2(b) and 7 of the Charter since the materials "may be of significance to adolescent self‑ fulfillment, self‑actualization and sexual exploration and identity."[7]

Burden of Proof

When the defence raises an "air of reality" to the defence, the crown has the burden of disproving the applicability of the defence beyond a reasonable doubt.[8] This can be raised by evidence "that the parties intended the ... material for the private use of [the victim] as well as that of the [accused], sometimes called a mutuality of benefit. Also, the evidence must show that [the victim's] consent was obtained in circumstances precluding her exploitation or abuse".[9]

Applicable Charges

This defence may also apply to distribution as well as possession.[10]

Requirements of the Defence

The exception protects “person’s possession of visual recordings created by or depicting that person, but only where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted.”[11]

The test requires:[12]

  1. materials depict lawful sexual activity;
  2. the activity posed a "nominal risk" to the child;[13]
  3. the materials were made with the consent of the persons depicted (ie. all parties involved);
  4. consent was not obtained by any exploitation or abuse of the subject;
  5. the materials is in possession of the creator of the material or participant to the sexual activity; and
  6. was held for private use.
Cannot Involve Exploitation

"Lawful" requirement does not simply mean it is conduct that is not criminal but can include the absence of "exploitation" or "abuse".[14]

Unlawful Activities

The capturing of a sex act with a person who is not legally permitted to consent to the sex act will not fall within the private use defence.[15]

The fact that the depictions are "fictitious" or "imaginary" does not negate the "unlawful" nature of the activity.[16]

Other Limitations on Defence

Possession of materials for any other purpose other than private use will not be protected.[17] The materials should be kept in "strict privacy" by the person in possession.[18]

There is some suggestion that there must also be a mutual benefit to all parties (ie. a requirement of "mutuality").[19]

The defence does not cover the distribution of private use materials without consent.[20]

Child participants in lawful private use materials must be aged 14 to 17 years old.[21]


  1. R v Sharpe, 2001 SCC 2 (CanLII), [2001] 1 SCR 45, per McLachlin CJ, at para 75
  2. Sharpe, ibid., at para 115
  3. Sharpe, ibid., at para 116
  4. R v Dabrowski, 2007 ONCA 619 (CanLII), 226 CCC (3d) 536, per MacPherson JA
  5. R v Barabash, 2014 ABCA 126 (CanLII), 310 CCC (3d) 360, per curiam (2:1), at para 34, appealed at [2015] 2 SCR 522, 2015 SCC 29 (CanLII), per Karakatsanis J
  6. Sharpe, supra{, at para 105
  7. Sharpe, supra, at para 109
  8. Sharpe, ibid., at para 116
    R v Cockell, 2013 ABCA 112 (CanLII), 299 CCC (3d) 221, per Bielby JA, at paras 33 to 36
  9. Cockell, ibid., at para 36
  10. R v Keough (No. 1), 2011 ABQB 48 (CanLII), 267 CCC (3d) 193, per Manderscheid J, at para 282
  11. Sharpe, supra, at para 128
  12. Sharpe, supra, at para 116
    Cockell, supra, at paras 36 to 39
    Barabash, supra
  13. see Barabash, supra (ABCA), at para 36
  14. Barabash, supra (ABCA), at para 36
  15. Cockell, supra, at paras 10 to 14 - suggests that pictures of sex between accused and a 13-year-old female cannot be private use.
  16. R v Fisher, 2020 SKQB 197 (CanLII), at para 22
  17. Sharpe, supra, at paras 116, 118
  18. Sharpe, supra, at para 116
  19. Cockell, supra, at paras 41 to 42
  20. R v Schultz, 2008 ABQB 679 (CanLII), 239 CCC (3d) 535, per Topolniski J, at paras 86 to 88
  21. R v Keough (No. 2), 2011 ABQB 312 (CanLII), 271 CCC (3d) 486, per Manderscheid J, at para 121

Third Party Possession

While not settled law, there is some authority to suggest that third-party (ie. persons not depicted in the materials) may also possess these materials (ie. "A records A for B").[1] By contrast an "owner" is someone who is a participant in the recording or is the creator of the recording.[2]

The expectation it that the "owner" must maintain control over the materials for the defence to apply to the third party. Factors to consider whether the owners maintain control include:[3]

  1. the recipient of the material,
  2. the purpose or reason for the transfer,
  3. what the third party recipient was told were the criteria for the transfer,
  4. the residual control of the ‘owners’ over the private use materials, and
  5. whether the private use materials were viewed by anyone other than its ‘owners’.

Third party possession of private use materials is illegal when it is: [4]

  1. without the consent of all persons recorded,
  2. obtained by fraud or deception,
  3. a result of coercion, threat, or extortion,
  4. results in the loss of control of the private use material,
  5. in exchange for any form of consideration, or
  6. otherwise exploitive or abusive.

Generally, the third party recipient will be an intimate partner of the "owner".[5]

There is some suggestion that the "owners" of the materials may withdraw their consent to remove the exception.[6]

All tranfers to third parties in exchange for payment is exploitive.[7]

  1. R v Keough (No. 1), 2011 ABQB 48 (CanLII), 267 CCC (3d) 193, per Manderscheid J, at paras 267 to 277
    R v Joseph, 2020 ONCA 733 (CanLII), per curiam, at para 163
    contra R v Bono, 2008 CanLII 51780 (ON SC), OJ No 3928, per DiTomaso J
    see also R v John, 2018 ONCA 702 (CanLII), 366 CCC (3d) 136, per Pardu JA, at para 37
  2. Keough (No. 1), supra, at para 284
  3. Keough (No. 1), supra, at para 288
    R v Dabrowski, 2007 ONCA 619 (CanLII), 226 CCC (3d) 536, per MacPherson JA, at para 30
  4. Keough (No. 1), supra, at paras 71, 293
  5. Keough (No. 1), supra, at para 294
  6. Keough (No. 1), supra, at paras 288 to 289 - discusses the implication of loss of "owner's" control and ability to seek its return or destruction
  7. Keough (No. 1), supra, at paras 291 to 292

Exploitation

See also: Sexual Exploitation (Offence)

The victim of exploitation need not be aware that they are being exploited. Exploitation of a victim will often produce a lack objectivity in the victim or ability to appreciate the nature of the exploitation.[1]

Establishing exploitation goes beyond a "moral taste test".[2]

Factors considered include:[3]

  • age difference;
  • circumstances of their meeting;
  • speed at which their relationship escalated;
  • active pursuit of sexual contact before face-to-face meeting
  • accused possessing images of other children;
  1. R v Cockell, 2013 ABCA 112 (CanLII), 299 CCC (3d) 221, per Bielby JA, at para 38
  2. Cockell, ibid., at para 39
  3. Cockell, ibid., at paras 43 to 46

Criminal Law in the Canadian Territories

Application of the Criminal Code to the Territories

Application to territories

8 (1) The provisions of this Act apply throughout Canada except

(a) in Yukon, in so far as they are inconsistent with the Yukon Act;
(b) in the Northwest Territories, in so far as they are inconsistent with the Northwest Territories Act; and
(c) in Nunavut, in so far as they are inconsistent with the Nunavut Act.

[omitted (2) and (3)]
R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138.

CCC


Note up: 8(1)

Preliminary Inquiry

See also: Preliminary Inquiry

Section 536.1 parallels the function of s. 536.

Remand by justice — Nunavut

536.1 (1) If an accused is before a justice of the peace charged with an indictable offence mentioned in section 553 [absolute jurisdiction offences], the justice of the peace shall remand the accused to appear before a judge.

Election before judge or justice of the peace in Nunavut — 14 years or more of imprisonment

(2) If an accused is before a judge or justice of the peace, charged with an indictable offence that is punishable by 14 years or more of imprisonment, other than an offence mentioned in section 469 [exclusive jurisdiction offences], the judge or justice of the peace shall, after the information has been read to the accused, put the accused to an election in the following words:

You have the option to elect to be tried by a judge without a jury or to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?
Election before judge or justice of the peace in Nunavut — other indictable offences

(2.1) If an accused is before a judge or justice of the peace, charged with an indictable offence — other than an offence that is punishable by 14 years or more of imprisonment, an offence listed in section 469 [exclusive jurisdiction offences] that is not punishable by 14 years or more of imprisonment or an offence mentioned in section 553 —, the judge or justice of the peace shall, after the information has been read to the accused, put the accused to an election in the following words:

You have the option to elect to be tried by a judge without a jury or to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. How do you elect to be tried?
Request for preliminary inquiry — Nunavut

(3) If an accused referred to in subsection (2) [election before judge or justice of the peace in Nunavut – 14 years or more of imprisonment] elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(a) [deemed election where lower judge declined to record] to have elected to be tried by a court composed of a judge and jury or if an accused is charged with an offence listed in section 469 [exclusive jurisdiction offences] that is punishable by 14 years or more of imprisonment, the justice or judge shall, subject to section 577 [direct indictments], on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 [powers of the superior and appellate court to make rules] or 482.1 [powers of the superior and appellate court to make case management rules] or, if there are no such rules, by the judge or justice, hold a preliminary inquiry into the charge.

Endorsement on the information — accused referred to in subsection (2)

(4) If an accused referred to in subsection (2) [election before judge or justice of the peace in Nunavut – 14 years or more of imprisonment] elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(a) [deemed election where lower judge declined to record] to have elected to be tried by a court composed of a judge and jury, the justice or judge shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing

(a) the nature of the election or deemed election of the accused or that the accused did not elect, as the case may be; and
(b) whether the accused or the prosecutor has requested that a preliminary inquiry be held.
Endorsement on the information — other accused charged with an offence punishable by 14 years or more of imprisonment

(4.01) If an accused is before a judge or justice of the peace, charged with an offence listed in section 469 [exclusive jurisdiction offences] that is punishable by 14 years or more of imprisonment, the justice or judge shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing whether the accused or the prosecutor has requested that a preliminary inquiry be held.

Endorsement on the information — accused referred to in subsection (2.1)

(4.02) If an accused referred to in subsection (2.1) [election before judge or justice of the peace in Nunavut – other indictable offences] elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(a) [deemed election where lower judge declined to record] to have elected to be tried by a court composed of a judge and jury, the justice shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing the nature of the election or deemed election of the accused or that the accused did not elect, as the case may be.

Preliminary inquiry if two or more accused

(4.1) If two or more persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (3) [request for preliminary inquiry – Nunavut], a preliminary inquiry must be held with respect to all of them.

Procedure if accused elects trial by judge — Nunavut

(4.2) If no request for a preliminary inquiry is made under subsection (3) [request for preliminary inquiry – Nunavut],

(a) if the accused is before a justice of the peace, the justice of the peace shall remand the accused to appear and plead to the charge before a judge; or
(b) if the accused is before a judge, the judge shall
(i) if the accused elects to be tried by a judge without a jury, call on the accused to plead to the charge and if the accused does not plead guilty, proceed with the trial or fix a time for the trial, or
(ii) if the accused elects or is deemed to have elected to be tried by a court composed of a judge and jury, fix a time for the trial.
Jurisdiction — Nunavut

(5) If a justice of the peace before whom a preliminary inquiry is being or is to be held has not commenced to take evidence, any justice of the peace having jurisdiction in Nunavut has jurisdiction for the purpose of subsection (3) [request for preliminary inquiry – Nunavut].

Application to Nunavut

(6) This section, and not section 536, applies in respect of criminal proceedings in Nunavut.

1999, c. 3, s. 35; 2002, c. 13, s. 26; 2004, c. 12, s. 10; 2019, c. 25, s. 240.
[annotation(s) added]

CCC


Note up: 536.1(1), (2), (2.1), (3), (4), (4.01), (4.02), (4.1), (4.2), (5), and (6)

If charge should be prosecuted by indictment — Nunavut

555.1 (1) If in any criminal proceedings under this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (s. 552 to 572)] an accused is before a judge of the Nunavut Court of Justice and it appears to the judge that for any reason the charge should be prosecuted by indictment, the judge may, at any time before the accused has entered a defence, decide not to adjudicate and shall then inform the accused of the decision.

Election before justice

(1.1) If the judge has decided not to adjudicate, the judge shall put the accused to an election in the following words:

You have the option to elect to be tried by a judge without a jury or to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you are entitled to one and you or the prosecutor requests one. How do you elect to be tried?
Continuing proceedings

(1.2) If the accused is entitled to a preliminary inquiry and they or the prosecutor requests one, the judge shall endorse on the information a record of the nature of the election or deemed election and continue the proceedings as a preliminary inquiry.

If subject-matter is testamentary instrument or exceeds $5,000 in value — Nunavut

(2) If an accused is before a judge of the Nunavut Court of Justice, charged with an offence prosecuted by indictment mentioned in paragraph 553(a) or subparagraph 553(b)(i) [absolute jurisdiction offences – party to property offences], and, at any time before the judge makes an adjudication, the evidence establishes that the subject matter of the offence is a testamentary instrument or that its value exceeds $5,000, the judge shall put the accused to their election in accordance with subsection 536.1(2.1) [election before judge or justice of the peace in Nunavut – other indictable offences].

Continuing proceedings — Nunavut

(3) If an accused is put to their election under subsection (1.1) [election address – nunavut] and no preliminary inquiry is requested, or is put to an election under subsection (2) [election address if subject matter is testamentary instr. or exceeding $5,000 – nunavut], and elects to be tried by a judge without a jury or a court composed of a judge and jury or does not elect when put to the election, the judge shall endorse on the information a record of the nature of the election or deemed election and continue with the trial.

Application to Nunavut

(4) This section, and not section 555 [defence election], applies in respect of criminal proceedings in Nunavut.

1999, c. 3, s. 39; 2002, c. 13, s. 33; 2019, c. 25, s. 253.
[annotation(s) added]

CCC


Note up: 555.1(1), (1.1), (1.2), (2), (3), and (4)

Provincial Court Trial

Provincial Court Judge’s Jurisdiction with Consent
Trial by provincial court judge with consent

554
[omitted (1)]

Nunavut

(2) With respect to criminal proceedings in Nunavut, if an accused is charged in an information with an indictable offence other than an offence that is mentioned in section 469 [exclusive jurisdiction offences] and the offence is not one over which a judge of the Nunavut Court of Justice has absolute jurisdiction under section 553 [absolute jurisdiction offences], a judge of the Nunavut Court of Justice may try the accused if the accused elects to be tried by a judge without a jury.

R.S., 1985, c. C-46, s. 554; R.S., 1985, c. 27 (1st Supp.), ss. 105, 203; 1999, c. 3, s. 38; 2002, c. 13, s. 31.
[annotation(s) added]

CCC


Note up: 554(2)

Election

Proceedings following re-election — Nunavut

562.1 (1) If the accused re-elects under subsection 561.1(1) [right to re-elect with consent – Nunavut] to be tried by a judge without a jury and does not request a preliminary inquiry under subsection 536.1(3) [request for preliminary inquiry – Nunavut], or if the accused re-elects any other mode of trial under subsection 561.1(2) [right to re-elect before trial – Nunavut] but is not entitled to make a request for a preliminary inquiry under subsection 536.1(3) [request for preliminary inquiry – Nunavut], the judge shall proceed with the trial or appoint a time and place for the trial.

Proceedings following re-election — Nunavut

(2) If the accused re-elects under section 561.1 [right of re-election - Nunavut] before the completion of the preliminary inquiry to be tried by a judge without a jury or by a court composed of a judge and jury, and requests a preliminary inquiry under subsection 536.1(3) [request for preliminary inquiry – Nunavut], the justice of the peace or judge shall proceed with the preliminary inquiry.

Application to Nunavut

(3) This section, and not section 562, applies in respect of criminal proceedings in Nunavut.

1999, c. 3, s. 44; 2002, c. 13, s. 39; 2019, c. 25, s. 257.
[annotation(s) added]

CCC


Note up: 562.1(1), (2) and (3)

Proceedings on re-election to be tried by judge without jury — Nunavut

563.1 (1) If an accused re-elects under section 561.1 [right of re-election - Nunavut] to be tried by a judge without a jury and does not request a preliminary inquiry under subsection 536.1(3) [request for preliminary inquiry – Nunavut] or is not entitled to make such a request under that subsection,

(a) the accused shall be tried on the information that was before the justice of the peace or judge at the preliminary inquiry, if applicable, subject to any amendments that may be allowed by the judge by whom the accused is tried; and
(b) the judge before whom the re-election is made shall endorse on the information a record of the re-election.
Application to Nunavut

(2) This section, and not section 563 [proceedings on re-election to be tried by provincial court judge without jury], applies in respect of criminal proceedings in Nunavut.

1999, c. 3, s. 45; 2002, c. 13, s. 40; 2019, c. 25, s. 259.
[annotation(s) added]

CCC


Note up: 563.1(1) and (2)

Right to re-elect with consent — Nunavut

561.1 (1) An accused who has elected or is deemed to have elected a mode of trial may re-elect any other mode of trial at any time with the written consent of the prosecutor.

Right to re-elect before trial — Nunavut

(2) An accused who has elected or is deemed to have elected a mode of trial but has not requested a preliminary inquiry under subsection 536.1(3) [request for preliminary inquiry – Nunavut] or is not entitled to make such a request under that subsection may, as of right, re-elect to be tried by any other mode of trial at any time up to 60 days before the day first appointed for the trial.

Right to re-elect at preliminary inquiry — Nunavut

(3) An accused who has elected or is deemed to have elected a mode of trial and has requested a preliminary inquiry under subsection 536.1(3) [request for preliminary inquiry – Nunavut] may, as of right, re-elect to be tried by the other mode of trial at any time before the completion of the preliminary inquiry or before the 60th day after its completion.

Notice of re-election under subsection (1) or (3) — Nunavut

(4) If an accused wishes to re-elect under subsection (1) [right to re-elect with consent – Nunavut] or (3) [right to re-elect at preliminary inquiry – Nunavut], before the completion of the preliminary inquiry, the accused shall give notice in writing of the wish to re-elect, together with the written consent of the prosecutor, if that consent is required, to the justice of the peace or judge presiding at the preliminary inquiry who shall on receipt of the notice put the accused to a re-election in the manner set out in subsection (9).

Notice at preliminary inquiry — Nunavut

(5) If at a preliminary inquiry an accused intends to re-elect under subsection (1) [right to re-elect with consent – Nunavut] or (3) [right to re-elect at preliminary inquiry – Nunavut] to be tried by a judge without a jury but does not intend to request a preliminary inquiry under subsection 536.1(3) [request for preliminary inquiry – Nunavut], the presiding justice of the peace shall notify a judge or a clerk of the Nunavut Court of Justice of the accused’s intention to re-elect and send to the judge or clerk any information, appearance notice, undertaking or release order given by or issued to the accused and any evidence taken before a coroner that is in the possession of the justice of the peace.

Notice when no preliminary inquiry or preliminary inquiry completed — Nunavut

(6) If an accused who has not requested a preliminary inquiry under subsection 536.1(3) [request for preliminary inquiry – Nunavut], who has had one or who was not entitled to make such a request under that subsection intends to re-elect under this section, the accused shall give notice in writing of the intention to re-elect together with the written consent of the prosecutor, if that consent is required, to the judge before whom the accused appeared and pleaded or to a clerk of the Nunavut Court of Justice.

(7) [Repealed, 2002, c. 13, s. 38]

Time and place for re-election — Nunavut

(8) On receipt of a notice given under any of subsections (4) to (7) [notice requirements – Nunavut] that the accused wishes to re-elect, a judge shall immediately appoint a time and place for the accused to re-elect and shall cause notice of the time and place to be given to the accused and the prosecutor.

Proceedings on re-election — Nunavut

(9) The accused shall attend or, if in custody, shall be produced at the time and place appointed under subsection (8) [time and place for re-election — Nunavut] and shall be put to a re-election after

(a) the charge on which the accused has been ordered to stand trial has been read to the accused or, if an indictment has been preferred under section 566 [charges on indictment], 574 [authority to prefer an indictment] or 577 [direct indictments] or is filed with the court before which the indictment is to be preferred under section 577 [direct indictments], the indictment has been read to the accused; or
(b) the information — in the case of a re-election under subsection (1) or (3), before the completion of the preliminary inquiry, or under subsection (2) — has been read to the accused.

The accused shall be put to their re-election in the following words or in words to the like effect:

You have given notice of your intention to re-elect the mode of your trial. You now have the option to do so. How do you intend to re-elect?
Application to Nunavut

(10) This section, and not section 561, applies in respect of criminal proceedings in Nunavut.

1999, c. 3, s. 43; 2002, c. 13, s. 38; 2019, c. 25, s. 255.
[annotation(s) added]

CCC


Note up: 561.1(1), (2), (3), (4), (5), (6), (8), (9), and (10)

Proceedings

PART XIX.1 Nunavut Court of Justice
Nunavut Court of Justice

573 (1) The powers to be exercised and the duties and functions to be performed under this Act by a court of criminal jurisdiction, a summary conviction court, a judge, a provincial court judge, a justice or a justice of the peace may be exercised or performed by a judge of the Nunavut Court of Justice.

Status when exercising power

(2) A power exercised or a duty or function performed by a judge of the Nunavut Court of Justice under subsection (1) [nunavut court of justice powers same as provincial court] is exercised or performed by that judge as a judge of a superior court.

Interpretation

(3) Subsection (2) [nunavut court power exercised as superior court] does not authorize a judge of the Nunavut Court of Justice who is presiding at a preliminary inquiry to grant a remedy under section 24 of the Canadian Charter of Rights and Freedoms.
R.S., 1985, c. C-46, s. 573; R.S., 1985, c. 27 (1st Supp.), s. 113; 1999, c. 3, s. 50.
[annotation(s) added]

CCC


Note up: 573(1), (2) and (3)

Application for review — Nunavut

573.1 (1) An application for review may be made by the Attorney General or the accused, or by any person directly affected by the decision or order, to a judge of the Court of Appeal of Nunavut in respect of a decision or order of a judge of the ; Nunavut Court of Justice

(a) relating to a warrant or summons;
(b) relating to the conduct of a preliminary inquiry, including an order under subsection 548(1) [order to stand trial or discharge];
(c) relating to a subpoena;
(d) relating to the publication or broadcasting of information or access to the court room for all or part of the proceedings;
(e) to refuse to quash an information or indictment; or
(f) relating to the detention, disposal or forfeiture of any thing seized under a warrant or order.
Limitation

(2) A decision or order may not be reviewed under this section if

(a) the decision or order is of a kind that could only be made in a province or a territory other than Nunavut by a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges]; or
(b) another statutory right of review is available.
Grounds of review

(3) The judge of the Court of Appeal of Nunavut may grant relief under subsection (4) [application for review – Nunavut – powers of judge] only if the judge is satisfied that

(a) in the case of any decision or order mentioned in subsection (1) [application for review re various orders – Nunavut],
(i) the judge of the Nunavut Court of Justice failed to observe a principle of natural justice or failed or refused to exercise the judge’s jurisdiction, or
(ii) the decision or order was made as a result of an irrelevant consideration or for an improper purpose;
(b) in the case of a decision or order mentioned in paragraph (1)(a) [application for review – Nunavut – warrant or summons], that
(i) the judge failed to comply with a statutory requirement for the making of the decision or order,
(ii) the decision or order was made in the absence of any evidence that a statutory requirement for the making of the decision or order was met,
(iii) the decision or order was made as a result of reckless disregard for the truth, fraud, intentional misrepresentation of material facts or intentional omission to state material facts,
(iv) the warrant is so vague or lacking in particularity that it authorizes an unreasonable search, or
(v) the warrant lacks a material term or condition that is required by law;
(c) in the case of a decision or order mentioned in paragraph (1)(b) [application for review – Nunavut – preliminary inquiry], that the judge of the Nunavut Court of Justice
(i) failed to follow a mandatory provision of this Act relating to the conduct of a preliminary inquiry,
(ii) ordered the accused to stand trial when there was no evidence adduced on which a properly instructed jury acting reasonably could convict, or
(iii) discharged the accused when there was some evidence adduced on which a properly instructed jury acting reasonably could convict;
(d) in the case of a decision or order mentioned in paragraph (1)(c) [application for review – Nunavut – subpoena] or (d) [application for review – Nunavut – publication orders], that the judge of the Nunavut Court of Justice erred in law;
(e) in the case of a decision or order mentioned in paragraph (1)(e) [application for review – Nunavut – refusal to quash], that
(i) the information or indictment failed to give the accused notice of the charge,
(ii) the judge of the Nunavut Court of Justice did not have jurisdiction to try the offence, or
(iii) the provision creating the offence alleged to have been committed by the accused is unconstitutional; or
(f) in the case of a decision or order mentioned in paragraph (1)(f) [application for review – Nunavut – property detention and forfeiture order], that
(i) the judge failed to comply with a statutory requirement for the making of the decision or order,
(ii) the decision or order was made in the absence of any evidence that a statutory requirement for the making of the decision or order was met, or
(iii) the decision or order was made as a result of reckless disregard for the truth, fraud, intentional misrepresentation of material facts or intentional omission to state material facts.
Powers of judge

(4) On the hearing of the application for review, the judge of the Court of Appeal of Nunavut may do one or more of the following:

(a) order a judge of the Nunavut Court of Justice to do any act or thing that the judge or any other judge of that court failed or refused to do or has delayed in doing;
(b) prohibit or restrain a decision, order or proceeding of a judge of the Nunavut Court of Justice;
(c) declare invalid or unlawful, quash or set aside, in whole or in part, a decision, order or proceeding of a judge of the Nunavut Court of Justice;
(d) refer back for determination in accordance with any directions that the judge considers to be appropriate, a decision, order or proceeding of a judge of the Nunavut Court of Justice;
(e) grant any remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms;
(f) refuse to grant any relief if the judge is of the opinion that no substantial wrong or miscarriage of justice has occurred or that the subject-matter of the application should be determined at trial or on appeal; and
(g) dismiss the application.
Interim orders

(5) If an application for review is made, a judge of the Court of Appeal of Nunavut may make any interim order that the judge considers appropriate pending the final disposition of the application for review.

Rules

(6) A person who proposes to make an application for review shall do so in the manner and within the period that may be directed by rules of court, except that a judge of the Court of Appeal of Nunavut may at any time extend any period specified in the rules.

Appeal

(7) An appeal lies to the Court of Appeal of Nunavut against a decision or order made under subsection (4) [application for review – Nunavut – powers of judge]. The provisions of Part XXI [Pt. XXI – Appeals – Indictable Offences (s. 673 to 696)] apply, with any modifications that the circumstances require, to the appeal.
1999, c. 3, s. 50.
[annotation(s) added]

CCC


Note up: 573.1(1), (2), (3), (4), (5), (6), and (7)

Habeas corpus

573.2 (1) Habeas corpus proceedings may be brought before a judge of the Court of Appeal of Nunavut in respect of an order made or warrant issued by a judge of the Nunavut Court of Justice, except where

(a) the order or warrant is of a kind that could only be made or issued in a province or a territory other than Nunavut by a superior court of criminal jurisdiction or a judge as defined in section 552; or
(b) another statutory right of review or appeal is available.
Exception

(2) Despite subsection (1), habeas corpus proceedings may be brought before a judge of the Court of Appeal of Nunavut with respect to an order or warrant of a judge of the Nunavut Court of Justice if the proceedings are brought to challenge the constitutionality of a person’s detention or confinement.

Provisions apply

(3) Subsections 784(2) to (6) apply in respect of any proceedings brought under subsection (1) or (2).
1999, c. 3, s. 50.

CCC


Note up: 573.2(1), (2) and (3)

Indictment — Nunavut

566.1 (1) The trial of an accused for an indictable offence, other than an indictable offence referred to in section 553 [absolute jurisdiction offences] or an offence in respect of which the accused has elected or re-elected to be tried by a judge without a jury and in respect of which no party has requested a preliminary inquiry under subsection 536.1(3) [request for preliminary inquiry – Nunavut] or was not entitled to make such a request under that subsection, must be on an indictment in writing setting out the offence with which the accused is charged.

Preferring indictment — Nunavut

(2) If an accused elects under section 536.1 or re-elects under section 561.1 to be tried by a judge without a jury and one of the parties requests a preliminary inquiry under subsection 536.1(3), an indictment in Form 4 may be preferred.

What counts may be included and who may prefer indictment — Nunavut

(3) Section 574 and subsection 576(1) apply, with any modifications that the circumstances require, to the preferring of an indictment under subsection (2).

Application to Nunavut

(4) This section, and not section 566, applies in respect of criminal proceedings in Nunavut.

1999, c. 3, s. 47; 2002, c. 13, s. 42; 2019, c. 25, s. 261.

CCC


Note up: 566.1(1), (2), (3), and (4)


Mode of trial if two or more accused — Nunavut

567.1 (1) Despite any other provision of this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (s. 552 to 572)], if two or more persons are jointly charged in an information, unless all of them elect or re-elect or are deemed to have elected the same mode of trial, the justice of the peace or judge may decline to record any election, re-election or deemed election for trial by a judge without a jury.

Application to Nunavut

(2) This section, and not section 567 [mode of trial where more than one accused], applies in respect of criminal proceedings in Nunavut.
1999, c. 3, s. 48; 2002, c. 13, s. 43.
[annotation(s) added]

CCC


Note up: 567.1(1) and (2)

Trial

Attorney General may require trial by jury — Nunavut

569 (1) Even if an accused elects under section 536.1 [right of re-election - Nunavut] or re-elects under section 561.1 [right of re-election - Nunavut] or subsection 565(2) [deemed election on direct indictment] to be tried by a judge without a jury, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge has no jurisdiction to try the accused under this Part [Pt. XIX – Indictable Offences – Trial Without a Jury (s. 552 to 572)] and a preliminary inquiry must be held if requested under subsection 536.1(3) [request for preliminary inquiry – Nunavut], unless one has already been held or the re-election was made under subsection 565(2) [deemed election on direct indictment].

Application to Nunavut

(2) This section, and not section 568, applies in respect of criminal proceedings in Nunavut.
R.S., 1985, c. C-46, s. 569; R.S., 1985, c. 27 (1st Supp.), s. 111; 1999, c. 3, s. 49; 2002, c. 13, s. 44; 2008, c. 18, s. 24.1.
[annotation(s) added]

CCC


Note up: 569(1) and (2)

Appeals

Appeals to Court of Appeal
Appeal on question of law

839
[omitted (1)]

Nunavut

(1.1) An appeal to the Court of Appeal of Nunavut may, with leave of that court or a judge of that court, be taken on any ground that involves a question of law alone, against a decision of a judge of the Court of Appeal of Nunavut acting as an appeal court under subsection 812(2) [when appeal court is Court of Appeal of Nunavut] or 829(2) [meaning of "appeal court" re nunavut].
[omitted (2), (3), (4) and (5)]
R.S., 1985, c. C-46, s. 839; R.S., 1985, c. 27 (1st Supp.), s. 183; 1999, c. 3, s. 57.
[annotation(s) added]

CCC


Note up: 839(1.1)

686
[omitted (1), (2), (3), (4) and (5)]

New trial under Part XIX — Nunavut

(5.01) If an appeal is taken in respect of proceedings under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (s. 552 to 572)] and the Court of Appeal of Nunavut orders a new trial under Part XXI [Pt. XXI – Appeals – Indictable Offences (s. 673 to 696)], the following provisions apply:

(a) if the accused, in the notice of appeal or notice of application for leave to appeal, requested that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall be held accordingly;
(b) if the accused, in the notice of appeal or notice of application for leave to appeal, did not request that the new trial, if ordered, should be held before a court composed of a judge and jury, the new trial shall, without further election by the accused, and without a preliminary inquiry, be held before a judge, acting under Part XIX, other than a judge who tried the accused in the first instance, unless the Court of Appeal of Nunavut directs that the new trial be held before the judge who tried the accused in the first instance;
(c) if the Court of Appeal of Nunavut orders that the new trial shall be held before a court composed of a judge and jury, the new trial shall be commenced by an indictment in writing setting forth the offence in respect of which the new trial was ordered; and
(d) despite paragraph (a), if the conviction against which the accused appealed was for an indictable offence mentioned in section 553 [absolute jurisdiction offences], the new trial shall be held before a judge acting under Part XIX [Pt. XIX – Indictable Offences – Trial Without a Jury (s. 552 to 572)], other than the judge who tried the accused in the first instance, unless the Court of Appeal of Nunavut directs that the new trial be held before the judge who tried the accused in the first instance.

[omitted (5.1)]

Election if new trial a jury trial — Nunavut

(5.2) If a new trial ordered by the Court of Appeal of Nunavut is to be held before a court composed of a judge and jury, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury. The election shall be deemed to be a re-election within the meaning of subsection 561.1(1) [right to re-elect with consent – Nunavut], and subsection 561.1(6) [notice when no preliminary inquiry or preliminary inquiry completed — Nunavut] applies, with any modifications that the circumstances require, to the election.
[omitted (6), (7) and (8)]
R.S., 1985, c. C-46, s. 686; R.S., 1985, c. 27 (1st Supp.), ss. 145, 203; 1991, c. 43, s. 9; 1997, c. 18, s. 98; 1999, c. 3, s. 52, c. 5, s. 26; 2015, c. 3, s. 54(F); 2019, c. 25, s. 282(E).
[annotation(s) added]

CCC


Note up: 686(5.01) and (5.2)

Youth Criminal Justice

Youth election

67
[omitted (1) and (2)]

Election — Nunavut

(3) In respect of proceedings in Nunavut, the youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (4) if

(a) [Repealed, 2012, c. 1, s. 178]
(b) the Attorney General has given notice under subsection 64(2) of the intention to seek an adult sentence for an offence committed after the young person has attained the age of fourteen years;
(c) the young person is charged with having committed first or second degree murder within the meaning of section 231 of the Criminal Code before the young person has attained the age of fourteen years; or
(d) the person to whom section 16 (status of accused uncertain) applies is charged with having, after attaining the age of fourteen years, committed an offence for which an adult would be entitled to an election under section 536.1 of the Criminal Code.
Wording of election

(4) The youth justice court shall put the young person to his or her election in the following words:

You have the option to elect to be tried by a judge of the Nunavut Court of Justice alone, acting as a youth justice court without a jury and without a preliminary inquiry; or you may elect to be tried by a judge of the Nunavut Court of Justice, acting as a youth justice court without a jury; or you may elect to be tried by a judge of the Nunavut Court of Justice, acting as a youth justice court with a jury. If you elect to be tried by a judge without a jury or by a judge, acting as a youth justice court, with a jury or if you are deemed to have elected to be tried by a judge, acting as a youth justice court, with a jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?

[omitted (5), (6), (7), (7.1), (7.2), (8) and (9)]
2002, c. 1, s. 67, c. 13, s. 91; 2012, c. 1, s. 178; 2019, c. 13, s. 166.

YCJA


Note up: 67(3) and (4)