CRIMINAL

WINTER 2017

CASE FACTS
CHARLENE SCHEFFELMAIR
ACTUS REUS...........................................................................................................................................4
Kilbride v. Lake, [1962] NZLR 590.........................................................................................................4
R. v. King, [1962] SCR 746....................................................................................................................4
R. v. Ruzic, [2001] 1 SCR 687................................................................................................................4
Fagan v. Commissioner of Metropolitan Police, [1969] 1 QB 439........................................................4
R. v. Miller, [1982] 2 All ER386.............................................................................................................4
R. v. Cooper, [1993] 1 SCR 146.............................................................................................................4
R. v. William, 2003 SCC 41....................................................................................................................4
ACT AND OMISSIONS.............................................................................................................................4
R. v. Browne, (1997) 116 CCC (3d) 183.................................................................................................4
R. v. Thornton, (1991), 3 CR (4th) 381..................................................................................................5
CONSEQUENCES AND CAUSATION.........................................................................................................5
Smithers v. The Queen, [1978] 1 SCR 506.............................................................................................5
R. v. Harbottle, [1993] 3 SCR 306.........................................................................................................5
R. v. Nette, [2001] 3 SCR 488................................................................................................................5
R. v Maybin, 2012 SCC 24 [headnote]..................................................................................................6
MENS REA..............................................................................................................................................6
INTENTION, KNOWLEDGE, WILLFUL BLINDNESS, AND RECKLESSNESS ........................................................................6
R. v. Buzzanga and Durocher (1979), 49 CCC (2d) 369 [2 different excerpts].......................................6
R. v. Steane, [1947] 1 KB 997...............................................................................................................6
Hibbert v. The Queen, [1995] 2 SCR 973...............................................................................................6
R. v. Briscoe, 2010 SCC 13....................................................................................................................6
R. v. Sansregret, [1985] 1 SCR 570.......................................................................................................6
OBJECTIVE KNOWLEDGE, CRIMINAL AND PENAL NEGLIGENCE.................................................................................7
R v. Tutton and Tutton..........................................................................................................................7
R. v. Hundal, [1993] 1 SCR 867.............................................................................................................7
R. v. Creighton, [1993] 3 SCR 3.............................................................................................................7
R. v. Beatty, 2008 SCC 5........................................................................................................................7
R. v Roy, 2010 SCC 26...........................................................................................................................7
CONSTITUTIONAL CONSIDERATIONS..................................................................................................................7
R. v. Vaillancourt, [1987] 2 SCR 636.....................................................................................................7
R. v. Martineau, [1990] 2 SCR 633........................................................................................................8
R. v DeSouza, [1992] 2 SCR 944............................................................................................................8
STRICT AND ABSOLUTE LIABILITY...........................................................................................................8
Beaver v. The Queen, [1957] SCR 531..................................................................................................8
R. v. Pierce Fisheries Ltd., [1971] SCR 5................................................................................................8
R. v. City of Sault Ste. Marie, [1978] 2 SCR 1299..................................................................................8
Reference re Section 94(2) of the B.C. Motor Vehicle Act, [1985] 2 SCR 486........................................8
R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154............................................................................8
EXTENSIONS OF CRIMINAL LIABILITY......................................................................................................9
PARTIES, COUNSELING, AND ACCESSORY AFTER THE FACT....................................................................................9
R. v. Thatcher, [1987] 1 SCR 652..........................................................................................................9
R. v. Greyeyes, [1997] 2 SCR 825..........................................................................................................9
 R. v Briscoe, [2010] 1 SCR 411..............................................................................................................9
Dunlop v. Sylvester v. The Queen, [1979] 2 SCR 881............................................................................9
R. v. Jackson, 2007 SCC 52 [headnote].................................................................................................9
R. v. Nixon (1990), 57 CCC (3d) 97 (BCCA) [headnote]..........................................................................9
R. v. Duong (1988), 124 CCC (3d) 392 (OCA)........................................................................................9
ATTEMPTS AND CONSPIRACIES......................................................................................................................10
R. v. Cline (1956), 115 CCC 18.............................................................................................................10
Deutsch v. The Queen, [1986] 2 SCR 2................................................................................................10
R. v. Ancio, [1984] 1 SCR 225..............................................................................................................10
R. v. Logan, [1990] 2 SCR 731.............................................................................................................10
R. v. Sorrell and Bondett (1978), 41 CCC (2d) 9 (OCA)........................................................................10
United States of America v. Dynar, [1997] 2 SCR 462.........................................................................11
HOMICIDE AND DEFENCES...................................................................................................................11
R v Creighton, [1993] 3 SCR 3.............................................................................................................11
R v. Cooper, [1993] 1 SCR 146............................................................................................................11
R v. Widdifield (Ont. S.C. 1961)..........................................................................................................11
R v. More, [1963] SCR 522..................................................................................................................11
R v. Nygaard, (SCC 1989)....................................................................................................................11
R v. Collins (1989), 48 CCC (3d) 343....................................................................................................11
R v. Russell, 2001 SCC 53....................................................................................................................12
PROVOCATION.....................................................................................................................................12
R. v. Hill, [1986] 1 SCR 313.................................................................................................................12
R. v. Thibert, [1996] 1 SCR 37.............................................................................................................12
R. v. Tran, 2010 SCC 58 [headnote]....................................................................................................12
SELF DEFENCE.......................................................................................................................................12
R. v. Cinous, 2002 SCC 29...................................................................................................................12
R. v. Lavallee, [1990] 1 SCR 852.........................................................................................................12
R. v. Petel, [1994] 1 SCR 3..................................................................................................................13
MENTAL DISORDER..............................................................................................................................13
R. v. Whittle (SCC 1994)......................................................................................................................13
Cooper v. The Queen, [1980] 1 SCR 1149...........................................................................................13
R. v. Chaulk, [1990] 3 SCR 1303..........................................................................................................13
R. v. Swain, [1991] 1 SCR 933.............................................................................................................13
INTOXICATION......................................................................................................................................13
DDP v Beard, [1920] AC 479...............................................................................................................13
R. v. George, [1960] SCR 871..............................................................................................................13
R. v. Leary, [1978] 1 SCR 29................................................................................................................14
R. v. Bernard, [1988] 2 SCR 833..........................................................................................................14
R. v. Daviault, [1994] 3 SCR 63...........................................................................................................14
R. v. Penno (SCC 1990).......................................................................................................................14
R. v. King, [1962] SCR 746..................................................................................................................14
ACTUS REUS
Kilbride v. Lake, [1962] NZLR 590
-K parks car and at time had a valid licence / permit on display as required.
-returns late to find traffic offence notice for not displaying permit
-permit blew away or was taken, but this was an absolute liability offence, K found guilty.

R. v. King, [1962] SCR 746

-K charged with impaired driving after receiving a drug at the dentist. Doesn’t recall hearing the dental
assistant warn him not to drive, plows into a parked car.

R. v. Ruzic, [2001] 1 SCR 687

-SCC in Ruzic: “the element of voluntariness may sometimes overlap both actus reus and mens rea”
-preferable to ground voluntariness as part of the actus reus analysis for cases involving absolute
liability, where AR is the entire offence.

Fagan v. Commissioner of Metropolitan Police, [1969] 1 QB 439

-Police officer, M, tells F to pull over, F drives on M’s foot unintentionally.
-M says, “Get off, you are on my foot!”
-Fagan says: “F--- You, you can wait.” The engine then stops.
-M kept asking him to get off, F then says, “OK” and moves.
-F charged with assault, convicted at trial.

R. v. Miller, [1982] 2 All ER386

-M, a squatter in another person’s house, falls asleep with lit cigarette, wakes to see mattress
smoldering, does nothing; moves to another room and sleeps. House burns down.
-M convicted of arson.

R. v. Cooper, [1993] 1 SCR 146

-C convicted of murder
-C’s evidence: became angry, grabbed wife’s throat and shook her, then passed out, waking hours later
in car with deceased’s body beside him.
-expert evidence: wife died 30 seconds to 2 minutes into strangling.
-C convicted of murder

R. v. William, 2003 SCC 41

-W becomes HIV positive, only finds out in Nov. 91
-told he shouldn’t have sex without disclosing it first
-has sex w/ partner without disclosing it; they break up.
-in 94 she tests positive
-W concedes he infected her
-Crown concedes he may have infected her prior to Nov 91.

ACT AND OMISSIONS

R. v. Browne, (1997) 116 CCC (3d) 183
-B and G close friends, sold cocaine together
-before being approached by police, G swallows bag of cocaine; both arrested, searched and released
at 11:30
-G tries to vomit up bag but fails.
-G and B return to B’s house, G left in basement for 10-15 minutes while B makes meal
-returns downstairs (2 am) to find G “shaking and sweating,” barely conscious and unable to walk.
-B says, “I’m going to take you to the hospital” and calls taxi; 15 minutes to arrive, another 15 to reach
emergency
-upon arrival, no pulse or heartbeat; G pronounced dead soon after arriving.

R. v. Thornton, (1991), 3 CR (4th) 381

-T donates blood to Red Cross knowing he has HIV and knowing that donating would endanger lives of
others.
-charged and convicted of common nuisance endangering safety of the public (s. 180).

CONSEQUENCES AND CAUSATION

Smithers v. The Queen, [1978] 1 SCR 506
-during hockey game, C and others made racial insults to S.
-S challenged C to fight; C attempted to leave arena. S stopped him on way out, punched him in head, C
didn’t fight back. As C was keeled over from punch, S delivered a hard kick to C’s stomach, C collapsed,
5 minutes later appeared to stop breathing; DOA at hospital. Medical evidence: cause of death was
“aspiration of foreign materials present from vomiting.”
-normally when vomiting, the epiglottis folds over to prevent vomited content from entering lungs, but
here it failed.
-one doctor testified that the aspiration of material may not have been caused by the kick; it may have
occurred “spontaneously” as a result of C being in a “highly emotional state” – though this was
statistically very rare (roughly 1 in 300)
-S convicted of manslaughter.

R. v. Harbottle, [1993] 3 SCR 306

-H and S forcibly confined EB, and with her hands tied S strangled her to death while H held down her
legs.
-trial judge expressed doubt to jury about evidence here of ‘planning and pre-meditation’ [despite
ample evidence of this] – and explained that this might still be 1st degree murder if they found, under
s. 214(5), that the murder was committed in the course of a sexual assault or a forcible confinement.
-H and S both convicted of first degree murder.

R. v. Nette, [2001] 3 SCR 488

-95 y/o widow robbed and left bound on bed with garment overhead; dies at some point over 48
hours.
-N confesses involvement to UC; charged with 1st degree (murder occurs during unlawful confinement,
s. 231(5)).
-jury charged that test for causation is “more than a trivial cause”; but then later, is twice charged that
test is “slight or trivial cause.”
-convicted of 2nd degree;

R. v Maybin, 2012 SCC 24 [headnote]

Late at night, in a busy bar, the accused brothers T and M repeatedly punched the victim in the face
and head.  T eventually struck a blow that rendered the victim unconscious.  Arriving on the scene
within seconds, a bar bouncer then struck the victim in the head. The victim died moments later.  The
medical evidence was inconclusive about which blows caused death.  As a result, the trial judge
acquitted the accused brothers and the bouncer. The Crown appeals the case to the BC Court of
Appeal.

MENS REA
Intention, knowledge, willful blindness, and recklessness
R. v. Buzzanga and Durocher (1979), 49 CCC (2d) 369 [2 different excerpts]
-B+D distribute anti-Francophone pamphlets satirical in nature (pretending to ridicule Francophones)
-they intended not to promote hatred but to motivate citizens in support of creation of French school
in Ontario
-convicted of ‘wilfully promoting hatred’ [s. 281.2(2); now 319(2)]

R. v. Steane, [1947] 1 KB 997

-offence provision: “If with intent to assist the enemy, any person does any act which is likely assist the
enemy… [up to life sentence].”
-S captive in Germany during WW2, tortured, threatened with family’s arrest and imprisonment in
concentration camp if he refused to assist with broadcasts.
-says he didn’t act with intent to assist enemy; only acted with intent to save family.

Hibbert v. The Queen, [1995] 2 SCR 973

-H forced at gunpoint to lure friend to building lobby where he was shot by principal offender.
-H charged as party to attempt murder, with two ways to be
convicted (s. 21):
-for doing “anything for the purpose of aiding a person to commit” an offence; or
-forming an “intention in common” to carry out an unlawful purpose
-H argued duress at trial.

R. v. Briscoe, 2010 SCC 13

-B drives group to crime scene, provides weapon and holds victim in chain of events that culminated in
murder.
-charged as a party to murder, kidnapping, and sexual assault
-acquitted at trial on basis that B didn’t know crimes would occur; wilful blindness not considered.

R. v. Sansregret, [1985] 1 SCR 570

-After lengthy, turbulent relationship, complainant breaks up with S
-breaks into her house twice; C fears for safety both times b/c of threats and violent behavior
-to avoid further violence, she consents to sex.
-she reported both incidents to police, stating that she had been raped; but nothing happened after the
1st incident because appellant’s probation officer persuaded her not to press matter.
-S charged after second rape: TJ finds that S was aware of first complaint and PO’s involvement, and
“likelihood of the complainant’s reaction to his threat.”
-but TJ finding S had honest but mistaken belief in consent, TJ acquits.

Objective knowledge, criminal and penal negligence

R v. Tutton and Tutton
-couple convicted of criminal negligence causing death for "failing to provide necessaries of life without
lawful excuse" to five year old son
-refusing to provide insulin injections due in part to belief in faith healing
-charge to jury: standard of 'wanton or reckless disregard' in CN is standard of 'reasonable parents.'
Tuttons convicted.

R. v. Hundal, [1993] 1 SCR 867

-driver of overloaded dump truck runs red in busy Vancouver intersection, striking and killing driver
entering on green.
-acc'd says he was only short distance from intersection when light turned amber and continued b/c it
was dangerous to try to stop then.
-convicted of dangerous driving causing death (s. 249 of Code

R. v. Creighton, [1993] 3 SCR 3

-over 18 hour period, C and M consume large quantity of alcohol and cocaine. F joins C and M to do
more cocaine.
-C injects himself with cocaine, injects F, then, with M's consent, injects M; M begins to convulse
violently, experiences cardiac arrest.
-C and F attempt to resuscitate her. F wanted to call 911, but C resisted, persuading him not to.
-C and F place M on her bed, still convulsing; proceed to clean apartment of fingerprints and leave. F
returns 6 or 7 hours later alone and calls 911, M is then pronounced dead.
-C charged with manslaughter by an unlawful act (???) and criminal negligence; convicted of
manslaughter by both U.A. and C.N. (4y sentence)

R. v. Beatty, 2008 SCC 5

 -B charged with dangerous driving causing death (s. 249(4)) for crossing meridian around bend in road
and colliding w/ oncoming car, killing three people.
-says he was not sure what happened but that he must have lost consciousness (possibly due to heat
stroke from working in sun all day) or fallen asleep.
-no mechanical failure, no intoxicants, no improper driving prior

R. v Roy, 2010 SCC 26

-R brought vehicle to a stop on steep snow-covered backroad
-visibility very poor due to fog
-after stop, R looks left onto highway, see’s oncoming truck but mistakenly believes it is further than it
was.
-turning left, the truck strikes vehicle, killing R’s passenger.
-tried before Beatty decided by SCC, TJ convicts of dangerous driving causing death.

Constitutional Considerations
R. v. Vaillancourt, [1987] 2 SCR 636
-V and accomplice carry out armed robbery of pool hall, V with knife, accomplice with gun. During
robbery, accomplice shoots and kills a person; accomplice never found.
-V says he didn’t know gun was loaded, evidence to support this.
-V charged with ‘constructive’ murder under s. 213(d) [now 230],
-raises manslaughter to murder where Acc’d causes death while committing certain unlawful acts with
a weapon (here: robbery) – but without need for proof of intent to kill or subjective foresight that
death is likely to follow.
R. v. Martineau, [1990] 2 SCR 633
-M and T set out with loaded pistol and rifle
-they rob couple in trailer, after which T shoots and kills both.
-M says the intention was only to carry out a break and enter.
-challenge to 213(a) raising robbery to murder where person intends to cause bodily harm during
offence and death follows.

R. v DeSouza, [1992] 2 SCR 944

-D involved in fight, throws bottle against a wall, fragment hits bystander in the arm.
-D charged with "unlawfully causing bodily harm" in s. 269
(AR = unlawful act + bodily harm)
-argues at trial: Charter requires that you have to intend the bodily harm as well as the unlawful act.

STRICT AND ABSOLUTE LIABILITY

Beaver v. The Queen, [1957] SCR 531
-A acted as party, brother carrying drugs.
-A and brother convicted of trafficking and possession of heroin under ONDA (precursor to CDSA).
-A says he thought it was lactose (i.e., lacked knowledge).
-at trial, judge charges jury that knowledge not essential; if it was heroin, this was enough.
-CA agrees: MR not required for possession.

R. v. Pierce Fisheries Ltd., [1971] SCR 5

-Acc'd co charged with possession of undersized lobsters contrary to Lobster Fishery Regulations (and
the Fisheries Act)

R. v. City of Sault Ste. Marie, [1978] 2 SCR 1299

-City hired independent company to carry out waste disposal and the disposal contaminates stream
near dump site.
-both company and city are charged under s. 32(1) of Ontario Water Resources Commission Act, which
states that every municipality or person that causes discharges or permits the discharge of any material
into water is guilty of offence.
-at trial, judge finds city not involved in disposal operations; on appeal, trial de novo, judge finds
offence is strict liability and convicts city.
-Ontario Court of Appeal: MR required for "causing or permitting discharge," orders new trial.

Reference re Section 94(2) of the B.C. Motor Vehicle Act, [1985] 2 SCR 486
-BC gov asks BCCA to rule on whether proposed section 94(2) of Motor Vehicle Act was consistent with
the Charter.
-section 94(2) imposed mandatory minimum period of jail for driving while suspended "whether or not
the defendant knew of the prohibition or suspension" or driving without a licence.
-94(2) was also an absolute liability offence, in which the Crown had to prove only…

R. v. Wholesale Travel Group Inc., [1991] 3 SCR 154

-travel agency charged with false or misleading advertising under section 36(1)(a) of Competition Act.
-offence carried a possible prison sentence.
-it was a strict liability offence, and s. 37.3(2) allowed for defence of due diligence, but it also required a
timely retraction
-Charter challenge to misleading advertising provisions (Competition Act)

EXTENSIONS OF CRIMINAL LIABILITY

Parties, Counseling, and Accessory After the Fact
R. v. Thatcher, [1987] 1 SCR 652
-strong evidence that T carried out murder or aided (paid someone to do it).
-eye witness testifies to seeing man leave crime scene right after hearing screams – but description
does not match T.
-Jury told they could convict either as party or as principal
-TJ didn't stipulate that jury had to be unanimous as to party or principal

R. v. Greyeyes, [1997] 2 SCR 825

-G takes several steps to assist UC officer to find source of drugs and to buy quantity.
-officer pays G for his help.
-G acquitted at trial; overturned at CA

R. v Briscoe, [2010] 1 SCR 411

-B drives group to crime scene, provides weapon and holds victim in chain of events that culminated in
murder.
-charged as a party to murder, kidnapping, and sexual assault
-acquitted at trial on basis that B didn’t know crimes would occur; wilful blindness not considered.

Dunlop v. Sylvester v. The Queen, [1979] 2 SCR 881

-D+S present at rape of 16 year old by biker gang
-claim they delivered beer and left after three minutes.
-convicted as parties.

R. v. Jackson, 2007 SCC 52 [headnote]

-J found with four others at the site of a secluded marijuana plantation in remote area of forest
-large commercial op, no evidence of any legitimate business enterprise, or recreational activity (i.e.,
any other reason to be there)
-J convicted of being a party to marijuana production

R. v. Nixon (1990), 57 CCC (3d) 97 (BCCA) [headnote]

-N senior officer in charge of Vancouver police station holding cells.
-in N's presence, one of a group of other officers assaults a detainee, breaking their knee – but none
are charged.
-N convicted as party to aggravated assault under s. 21 on the basis that he had a duty under the Police
Act to protect persons in his custody, and the intentional failure to do so (to aid in assault) constituted
an omission under s. 21.
-9 month sentence; conviction upheld by CA.

R. v. Duong (1988), 124 CCC (3d) 392 (OCA)

-L is widely reported to be a suspect in a murder; D knows at least that L is "in trouble."
-D allows L to hide in his apartment, admits:
"…I didn’t want to know anything because I knew I would be in trouble for helping him."
-was charged under 23(1): ‘Accessory after to the fact,’ requiring proof that acc’d: "knowing that a
person has been a party to the offence… assists… for purpose of enabling to escape."
-TJ convicts on basis that (a) D knew L was wanted for murder, and (b) "knew he would be in trouble
for harbouring Lam and deliberately elected not to inquire of Lam [as to] his involvement in the
homicide."
–i.e., he was at least wilfully blind of whether L was a party to murder.

Attempts and Conspiracies

R. v. Cline (1956), 115 CCC 18
-a person's conduct goes "beyond mere preparation" in law when they take one step further after
there was nothing more you needed to do to complete the offence.

Deutsch v. The Queen, [1986] 2 SCR 2

-D posts ad for an assistant/sales rep in a job involving sale of franchises.
-interviews 3 women (and UC officer posing as applicant) and states the job will pay up to 100k but
might require having sex with clients to obtain contracts.
-none of the applicants were made a job offer (first 3 women put off; UC officer told to “think it over”).
-charged with attempting to procure person to become prostitute and soliciting person to have illicit
sex with another.
-acquitted at trial on basis of finding that D had not gone beyond preparation because he had not
offered any of the women the job.

R. v. Ancio, [1984] 1 SCR 225

-Wanting to speak to his estranged wife, A broke into home of K (her new partner) with loaded sawed-
off shotgun.
-K goes to investigate sound of breaking glass and throws chair when he sees A climbing stairs.
-A fires gun, missing K and struggle follows.
-A was convicted of attempted murder of K on basis that predicate offence was B+E with intent to
commit indictable (to force wife to leave) and under s. 230, this would raise manslaughter to murder if
death was caused in process.

R. v. Logan, [1990] 2 SCR 731

-accused were involved in the robbery of a convenience store. One of them, Hugh Logan, shot the
clerk, almost killing her (and he was charged with attempted murder).
-appeal concerns the role of two of the parties: Johnson and Sutcliffe Logan (shooter’s brother). J says
he didn't intend to shoot and there had been no discussion of using guns; SL boasted to UC of his
involvement in planning the robberies.
-TJ instructed jury: with respect to J and SL: Crown had to establish BARD that A's “knew or ought to
have known that someone would probably shoot with the intention of killing.” [i.e., as provided in s.
21(2)]
-J and SL convicted of attempt murder under 21(2) ("common intent" for unlawful purpose + objective
foreseeability of offence as probable consequence)

R. v. Sorrell and Bondett (1978), 41 CCC (2d) 9 (OCA)

Two Acc'd came to the door of a fried chicken restaurant one evening. One had a gun, the other had
sunglasses. Both wore balaclavas over their faces. They tried to enter, but door was locked because
store had closed earlier than usual. They knocked and manager indicated that restaurant was now
closed and returned to his work. Acc'd gestured to one another in surprise, then walked away. Another
employee noticed one of the acc'd had a gun and called police. Both were arrested moments later, no
balaclavas, but Sorrell had loaded gun. Both charged with attempted robbery. Acquitted at trial; Crown
appeal to OCA.

United States of America v. Dynar, [1997] 2 SCR 462

-application by USA to extradite D for attempted money laundering and conspiracy.
-D agreed to launder money for FBI agents acting UC.
-to extradite D, it was necessary to establish that the offence D is alleged to have committed in the US
would also be an offence in Canada.
-under Canadian law at the time, laundering required that money in fact be the proceeds of crime.
-D believed them to be, but they weren't (it was gov money; part of sting op)
-D argues: couldn't be attempt, because it was legally impossible to commit complete crime in Canada.

HOMICIDE AND DEFENCES

R v Creighton, [1993] 3 SCR 3
-three people assemble to drink and do cocaine. With consent, C injects cocaine into M’s arm, she OD’s
and dies.
-C convicted of manslaughter on basis that elements of both section 222(5)(a) and (b) were established
BARD.

R v. Cooper, [1993] 1 SCR 146

-accused claims victim hit him and that he strangled her in response.
-“blacks out” while strangling; wakes to find her dead; medical evidence confirmed she had been
strangled for between 30 seconds and 2 minutes.
-at trial, jury told: once C had formed intent to cause bodily harm which he knew would likely cause her
death, it was not necessary that he be aware of his actions at moment she died. Jury convicted.
-CA holds this charge to be in error.

R v. Widdifield (Ont. S.C. 1961)

-‘planned’: has ordinary meaning of “calculated scheme or design” – can be simple. 
-can be “planned” even if it is immediately carried out, no need for significant delay.

R v. More, [1963] SCR 522

-‘deliberate’: means “considered,” “not impulsive,” “slow in deciding,” “cautious”.

R v. Nygaard, (SCC 1989)

-two accused planned to beat victim with baseball bats in relation to a relatively minor dispute over
money and property.
-found at trial to have necessary intent under s. 229(a)(ii):
[intent to do BH knowing it is likely to cause D]

R v. Collins (1989), 48 CCC (3d) 343

-s. 231(4) renders the murder of a police officer 1 st degree (i.e., even if not planned and deliberate).

R v. Russell, 2001 SCC 53

-R forcibly confines A in bedroom then goes to basement and stabs and kills B.
-charged with first degree murder under s. 231(5), which raises from 2 nd to 1st any murder “while
committing” certain acts (including forcible confinement).

PROVOCATION
R. v. Hill, [1986] 1 SCR 313
-A (16 y/o) convicted of 2nd degree murder.
-Crown theory: A & V were lovers, had an argument, as a result of which A first hit V over the head then
stabbed him.
-A testified that V had made unwelcome advances and A accidentally hit V in trying to fend him off,
then stabbed V when V threatened to kill A.
-TJ charged jury on provocation, but did not specifically address nature of “ordinary person” test.

R. v. Thibert, [1996] 1 SCR 37

-T charged with 1st degree murder after shooting V, his (separated) wife’s lover.
-T testified that he had gone to wife’s work to talk things over and scare wife with rifle, but V insulted
and demeaned T by holding wife in front of him and daring him to shoot.
-TJ did not tell jury that, where provocation is raised, the accused does not have the onus of proving it;
rather, the Crown bears burden of disproving it BRD; T convicted of 2nd degree murder.

R. v. Tran, 2010 SCC 58 [headnote]

-a situation itself can’t be wrongful/insulting; victim must do something amounting to an insult.  
-insult or wrongful act must be sudden: it can’t amount to knowledge one already possessed.  
-walking in on an adulterous scene is not, in itself, an “insult or wrongful act.”
 -the insult / act is only ‘objectively insulting’ if inconsistent with contemporary Canadian values
(dignity, equality, liberty; i.e., cannot be premised upon homophobia, gender discrimination, concepts
of male ‘honour,’ etc.)

SELF DEFENCE
R. v. Cinous, 2002 SCC 29
-C involved with M and I in various thefts.
-C becomes suspicious that M and I intend to kill him on day in question.
-C rides in back of van with M and I in front. At gas station, C gets out, buys something, returns to back
of van and shoots M in back of head.
-claims that criminal past made calling police seem an unreasonable option
-self defence [old 34(2)] rejected by jury; C claims errors by jury

R. v. Lavallee, [1990] 1 SCR 852

-L killed her partner after he had threatened to kill her “later”.
-L shot R from behind, as he was walking out of bedroom.
-historical pattern of violent physical abuse by R towards L.
-expert evidence suggested that L suffered from the psychological effects of battered woman
syndrome.
-L was well attuned to the nature and severity R’s impending violence, and not inclined to believe that
she could escape the violence by leaving home/relationship.

R. v. Petel, [1994] 1 SCR 3

-A lived with her daughter and her daughter’s boyfriend E.
-E, a drug-dealer who dealt drugs from A’s apartment, was abusive with daughter and threatened A in
past.
-One evening, E brought gun home and told A to hide it in washroom; forced A to weigh some cocaine
on a scale, then suggested he would kill her and daughter
-Soon after, A’s daughter arrived with E’s associate R; A consumed small amount of drugs, retrieved
gun from washroom, shot at E, who fell; seeing R lunging at her, she shot R and he died. Seeks to rely
on 34(2) in trial for murder.

MENTAL DISORDER
R. v. Whittle (SCC 1994)
-test for fitness is low: only “limited cognitive capacity to understand process and to communicate with
counsel.”
-not necessary that A be “capable of making rational decisions beneficial to him.”

Cooper v. The Queen, [1980] 1 SCR 1149

-C charged with second degree, had lengthy psychiatric history -sought to rely on not on insanity, but
lack of capacity to form intent to kill.

R. v. Chaulk, [1990] 3 SCR 1303

-Accused suffered from paranoid psychosis making them believe they had power to rule world; killing
was necessary; they were aware of the law but believed they were above ordinary law.
-“entered a home in Winnipeg, plundered it for valuables and then stabbed and bludgeoned its sole
occupant to death”; convicted of 1st degree murder

R. v. Swain, [1991] 1 SCR 933

-S charged with assault and agg assault, hospitalized prior to trial; at trial, does not raise insanity;
Crown does instead, he objects.
-Common law rule had allowed Crown to raise insanity at any point in course of proceedings.

INTOXICATION
DDP v Beard, [1920] AC 479
-prior to 19th century, intox not recognized as defence; but over course of 19 th, courts accept that intox
can raise a doubt about whether accused forms the requisite intent for certain offences.
-but in the case of murder, the authorities suggest that intox would only result in reducing
murder to…
-where evidence points not to an incapacity to form particular intent, but to a greater readiness to
“give way to some violent passion,” intoxication will “not rebut the presumption that a man intends
the natural consequences of his acts.”

R. v. George, [1960] SCR 871

-while intoxicated, G robs older man of money,
-G gives statement attesting to patchy memory of event
-is acquitted of robbery at trial on basis that he was found to be drunk enough to be “unable to form
the intent to do it.”
-Crown appeals to BCCA on basis that judge should have found G guilty of lesser included offence of
assault; appeal dismissed.
R. v. Leary, [1978] 1 SCR 29
-SCC explicitly recognizes distinction between general and specific intent offences. Sexual assault = GI
offence
-intoxication is not a defence to a crime of general intent.

R. v. Bernard, [1988] 2 SCR 833

-Sexual assault causing bodily harm; accused seeks to rely on intoxication to raise doubt about MR for
consent; TJ says to jury, intoxication not a defence to SA, convicted; OCA dismisses appeal

R. v. Daviault, [1994] 3 SCR 63

-D, a chronic alcoholic, sexually assaults elderly acquaintance of his wife, with whom he had been
drinking.
-D had alcohol content of 400 and 600 mg in 100 ml of blood (enough to kill ordinary person).
-Expert testifies that this was enough to cause a dissociative state, no awareness of actions.

R. v. Penno (SCC 1990)

-self-induced intoxication not a defence to any offence in which intoxication is an element.

R. v. King, [1962] SCR 746

-dentist gives K medication; K unexpectedly becomes impaired while driving; is convicted of impaired
driving, conviction overturned.
-involuntary intox can apply to any offence, because it may negate both the AR (voluntariness) and MR.