LawyerSelect.ca Criminal Law Blog

LawyerSelect.ca Criminal Law Blog

Thursday, 19 October 2017

Do I Need The Other Person’s Permission To Record A Conversation?

Do I Need The Other Person’s Permission To Record A Conversation?


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There is a lot of misleading information out there about the law in Canada regarding recorded conversations. Some of that misinformation is as a result of American laws finding their way to Canadians through television shows and other mediums.

As it stands, the law in Canada states that it’s legal to record a conversation so long as one of the parties to the conversation consents. That means if you’re a party to the conversation, then you can legally record it, since you’re giving your consent. So, to be clear, you’re always allowed to record a conversation that you’re a party to without notifying the other party or parties or obtaining their consent.

However, the law is entirely different when the conversation in question is between other people, to which you’re not a party. As such, Canadian law makes a clear distinction between the legality of recording a conversation that you’re involved in, and one that you’re not. The Criminal Code of Canada codifies this rule by imposing a general prohibition on the recording of private communications, but then prescribes an exception where one of the parties to the conversation consents to its recording.


Police, and other state actors and authorities require prior judicial authorization to intercept private communications. Simply put, they need to get a warrant before they can eavesdrop or record any of your conversations, whether in person, over the telephone or online.

Aiding and Abetting: Think Twice Before Helping Out A Fugitive

Think Twice Before Helping Out A Fugitive

Aiding & Abetting



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In Dunlop and Sylvester v. Rthe appellants were twice tried and convicted on a charge of rape. The indictment alleges that they did unlawfully have sexual intercourse with the victim without her consent. The appellants contend that they did no such thing, but rather, they were merely spectators at an event of which they had no prior knowledge. On appeal to the Manitoba Court of Appeal, the court found an error in the trial judge’s charge to the jury when he instructed them on the meaning of sec. 21(1)(b) of the CC. The trail judges read the following charge in response to a question by the jury:

“Intentionally omitting to do something for the purpose of aiding another to commit an offence, that if it had been done, would have prevented or hindered the person from committing an offence amounts to aiding and abetting”

However, the Court of Appeal applied sec. 613(1)(b)(iii), that the verdict would have been the same even in the absence of the error by the trial judge. The majority of the Supreme Court disagreed. Their definition of what amounted to aiding or abetting is summarized in the following way:

… Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principle offender’s intention to commit the offence or attendance for the purpose of encouragement… A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended.”

As such, the Supreme Court found no evidence on which a properly instructed jury could have found beyond a reasonable doubt that the appellants were guilty of aiding or abetting the rape. Thus, did not agree with the Court of Appeal for Manitoba that the error by the trial judge could be saved under sec. 613(1)(b)(iii).

In R v. Laurencellethe appellant was charged and convicted of aiding and abetting the unlawful confinement of the victim. Two men robbed and kidnapped the victim and brought him back to the home where the appellant lived with one of the men. During the four day confinement of the victim, the appellant, on several occasions, demonstrated acts of kindness to the victim, such as providing him with water and untying him to smoke a cigarette. At first instance, the trial judge found her guilty on the basis that she allowed the victim and the two men to remain in her home, which, the trial judge thought, amounted to more than passive acquiescence. She allowed her home to be used as a place of confinement, thereby encouraging the other co-accused in their venture. On appeal to the B.C. Court of Appeal, the justices stated the following:

“There is no basis for asserting that the appellant had sole control, and certainly no basis as a matter of common sense for suggesting that she had any effective way of requiring the co-accused to leave

They distinguished the instant case from earlier cases where it was shown that the accused exercised a degree of control over the premises, or automobile used in the commission of the crime, that their acquiescence amounted encouragement. They also went on to state that they disagreed with the Crown’s submission that the acts of kindness shown by the accused amounted to aiding and abetting.

In R v. Loganthe appellant was convicted of attempted murder during the course of a robbery in which he was a party, but did not fire the weapon which seriously wounded the victim. He was convicted under sec. 21(2) of the CC, which imposes criminal liability on joint-venturers who form a common unlawful purpose (in this case, the robbery) and later a collateral crime results from one or more of their actions. The test imposes an objective standard of foreseeability on the joint-venturer (the non-principal). The appellant sought the leave of the Supreme Court for his conviction of attempted murder on the basis that the requisite degree of Mens Rea required for the principle for a charge of attempted murder was higher than that required for a party to the offence. The Supreme Court started off by saying that they cannot completely exclude the possibility that for certain crimes Parliament could not set different degree requirements of Mens Rea for the principle and the party. However, in the decision of Vaillancourt the Supreme Court held that for few offences the principles of fundamental justice require that a conviction cannot stand unless there is proof beyond a reasonable doubt of a minimum degree of Mens Rea. In other words, that decision established that for crimes of murder, a subjective assessment of intent is required. Therefore, they instituted a two-step test to assess whether a party to the offence had the requisite Mens Rea to found a conviction pursuant to sec. 21(2):
  1. Is there a minimum degree of Mens Rea required by the principles of fundamental justice before one can be convicted as a principal for the offence in question?
  2. If the principles of fundamental justice do require a minimum degree of Mens Rea, then that minimum degree is constitutionally required to convict a party to that offence.

The requisite Mens Rea required for a conviction of attempted murder was established in the case of Ancio – that of specific intent to kill. However, that case did not deal with Charter arguments relating to sec. 7. In R v. MartineauCharter considerations were at the fore of that case, where it was held that subjective foresight of death was the minimum Mens Rea requirement for murder – not attempted murder. In reconciling the two decisions relating to two different charges, the Supreme Court, in this case, held that the only difference between a murderer and an attempted murderer is “consequence” component of the Actus Reus. Both are equally morally blameworthy. However, the underlying penal consequences for the two offences are dissimilar – attempted murder having a lower minimum sentence than that of murder. In responding to the perceived disparity, the Supreme Court held that as a basis for a constitutionally required minimum degree of Mens Rea, the social stigma associated with a conviction is the most important consideration, not the sentence. In other words, the sentencing range available to the Judge is not conclusive of the level of Mens Rea constitutionally required. As such, the Supreme Court concluded that the inclusion of the objective standard test for parties to an offence of attempted murder would violate sec. 7 of the Charter since it imposes an objective standard on the party and a subjective standard on the principle, while both are equally morally blameworthy. On an attempt to save the section as it applies to attempted murder via sec. 1 of the Charter, the Supreme Court held that it does not satisfy the proportionality test in Oakes because it unduly impairs an accused’s rights under sec. 7.


In R v. Portillo, which was argued before the Ontario Court of Appeal, established two important points:
  • First, it defines participation as “doing something that caused the death of the deceased or doing something for the purpose of helping another person to do something that caused the death of the deceased.” Additionally, “if the jury is satisfied that an accused participated in the killing as described above, it is unnecessary for the jury to determine the exact nature of that participation.”
  • Second, in regards to the application of sec. 21(2) – joint venturers in a common unlawful purpose – while the minimum requisite Mens Rea for murder is subjective intent, for manslaughter the objective test applies, in that “if a reasonable person would have foreseen the risk of harm to the deceased as a result of carrying out the common design, then he is as guilty as the principle.”

If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit LawyerSelect.ca.

Friday, 6 October 2017

If I Have a Criminal Record, Can I Still Act as a Surety?

IF I HAVE A CRIMINAL RECORD, CAN I STILL ACT AS A SURETY?

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Let’s first begin by explaining what a surety is, and what they do. Put simply, a surety is often required when an accused person is granted bail and released from custody.

The Surety Explained

When someone is charged with a criminal offence, sometimes they are released at the police station, and some other times they’re held until they can go before a court who will then decide if they get released on bail. A great majority of the time, the court will require that the accused have a surety in order to get bail. As such, a surety is basically someone who promises the court that they’ll keep an eye on the accused, until his or her charges have been dealt with. They’re usually required to live with the accused, supervise the accused, and ensure that the accused obeys all the terms of the bail agreement.

Some examples of these terms are:
·         To live with your surety, or live at an address that your surety approves of.
·         A curfew or house arrest.
·         Attending all scheduled court dates.
·         Reporting to the police station when required.
·         Refraining from direct or indirect communication with the victim or complainant in the matter.
·         Refrain from entering a predefined geographic boundary where the victim or complainant live, work, or are known to frequent.
·         Refraining from the consumption and possession of drugs and/or alcohol.
·         Keeping the peace at all times, and being of good behaviour.

Again, it’s the surety’s job to ensure that the accused obeys all the terms of the bail agreement (which is known as a recognizance of bail). If the accused breaches any of the terms of their bail, the surety could forfeit the money or assets that they pledged. This responsibility continues until the case is completely over, or they’re removed as the accused’s surety.

What Factors Do the Courts Consider when Assessing a Potential Surety?

The judge or the justice of the peace, depending on the level of court, is the ultimate decision-maker on the sufficiency of any proposed surety. When making their decision, the judge or justice of the peace will have different requirements for proposed sureties based on the charges that the accused is facing. In general, however, the judge or justice of the peace will consider the following factors in determining whether a proposed surety is acceptable or not:
·         Surety’s financial means.
·         Surety’s character and overall disposition.
·         Surety’s criminal background or lack thereof.
·         Surety’s relationship to the accused.
·         Surety’s ability to effectively monitor the accused, and ability to enforce the terms of the bail agreement.


In order to make a determination on the above factors, the surety will often be required to testify under oath at the bail hearing. Typically, they’ll be questioned first by the accused’s defence lawyer, who will try and portray them in the best possible light. However, the surety will also be subject to cross-examination by the Crown prosecutor, who will bring to light any unsavoury facts about the surety. With that mind, we can now answer the question posited by this article: can a person with a criminal record act as a surety? The answer to that is: yes, there is no hard and fast rule that prohibits an individual with a criminal record from acting as a surety. The decision will fall entirely to the presiding judge or justice of the peace. However, there are certain criminal convictions that may render it inappropriate for a certain person to be acting as a surety for a certain accused. A prime example of this would be if the surety has a history of drug offences, and the accused is currently facing a drug charge. Similarly, a surety who has criminal convictions for crimes of dishonesty or failing to attend court, will likely be deemed inappropriate by a reviewing court, as confidence in that person’s ability to monitor the accused will likely have been eroded. 

Former Maple Leaf Captain Rick Vaive Not Guilty Of Impaired Driving

Former Maple Leaf Captain Rick Vaive Not Guilty Of Impaired Driving



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On April 12, 2012, the Toronto Star ran an article covering the acquittal of former Toronto Maple Leafs captain, Rick Vaive, and staying true-to-form, its readers were not short of comments and/or critique on the trial's outcome. As I read through the comments section at the bottom of the article, I began noticing that the majority of readers simply could not understand this "two-hour" rule. Put simply, the "two-hour" rule requires police to administer the first Intoxilyzer breath test back at the station within two hours of the time of driving. In the majority of cases, the "time of driving clock" begins ticking when you get pulled over, but there are scenarios where that is not the case, like if you've already made it home before the cops show up at your door. If the tests aren't taken within that two hour time-frame, the Prosecution can't directly rely on the readings. I'll explain in a moment what I mean by that. In any event, as I continued reading through the comments it became quite clear that people's confusion and anger with this rule was not unfounded, as the rule makes absolutely no sense without the proper background information. Here's what one bewildered reader wrote:
Very Lucky !
Why have alcohol breath testers ??? The "FACTS" were he blew over, PERIOD...end of story !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Who cares about any other stories of being tired or what "he" says he consumed on that day or how he acted on video at the station later... If the judge is going to ignore the "FACTS" of the breath machine and its readings then why have them ??? It obviously pays to hire a slick lawyer and be a celebrity.... Anyone else is convicted and goes to jail, FACT !!! This judge has certainly not done our youth any favors in setting examples for ones actions, especially when it comes to drinking and driving !!!! Next time i get pulled over and asked if i have been drinking ? You bet i have officer !!!! You think i'am going to drive sober with all these drunks out here...
I wish I'd been around when he wrote that so I could ask him how he really felt, but I digress. No, his frustration is completely understandable. The laws governing impaired driving and driving with an excess blood-alcohol concentration is notoriously complex and riddled with exceptions, and exceptions to the exceptions. Here's what I wrote back:
REPLY @ northernguy10
So you wanna know why there's a law requiring the tests to be taken within two hours? I'll explain: the Criminal Code allows police to administer the breathalyser at some point AFTER the time of driving. In most cases, this will be between 1 to 1 1/2 hours after the suspect was pulled over. Why is this relevant? Well, it's simple. The criminal code allows police and the Crown Attorney to read back the suspect's blood-alcohol concentration to the ACTUAL TIME OF DRIVING. So, in other words, the Criminal Code provide's law enforcement with the benefit of a short cut in the form of a "legal fiction", because we all know that an individual's blood-alcohol concentration is NOT the same 1 1/2 to 2 hours later after the time of driving. Remember, it's not a crime to be drunk 1 1/2 to 2 hours after driving. It's a crime to be drunk/over the limit at the time of driving. Now, you may be thinking "well, wouldn't a suspect's blood-alcohol concentration be higher at the time of driving than it would be 1 1/2 to 2 hours later?" The answer is: not necessarily. It's entirely dependant on when the suspect began consuming alcohol. For example, it is entirely possible for a person to chug 10 shots, get in the car, drive the 10 minute ride home and still not be impaired/drunk because the alcohol has not been absorbed by his/her body yet. However, if you were to take that same individual's blood-alcohol concentration, say, an hour after, he/she would most likely blow over the limit. So, the rule makes perfect sense: if law enforcement is to rely on the benefit of this "legal fiction", then they've gotta follow the rules. The rule in this case is that it's gotta be taken within 2 hours. Otherwise, they'll need to use a toxicologist to read back the readings, but that isn't nearly as convincing or as conclusive.
Now, I sort of glossed over the whole toxicologist part at the end there, but what I meant by that is this: if the tests were taken within the prescribed two hour time-frame, then the results of those tests are conclusive. It no longer matters what a suspect or his/her friends say with respect to how much alcohol he/she consumed that night. The results of the breath tests override any viva voce (oral) evidence given at trial. However, if the tests were taken outside the prescribed two hour time-frame, then, as I said earlier, the Crown Attorney cannot rely directly on the results of those tests, but rather, must call a toxicologist at trial to testify. The toxicologist's job will be to analyze the test results and give an expert opinion on what the suspect's projected blood-alcohol concentration would have been at the time of driving. The conclusion that a toxicologist may reach with respect to the suspect's blood-alcohol concentration at the time of driving may differ markedly  from the test results produced by the Intoxilyzer machine. Why? Well, first and most obviously is because the toxicologist is determining the suspect's blood-alcohol concentration at the actual time of driving, as opposed to some time after that (usually 1 to 1 1/2 hours) which is what the breath samples are reflective of. The toxicologist will most likely determine whether the suspect was in the "absorption phase" or the "elimination phase". In the latter phase, the suspect's body is still absorbing the alcohol he/she consumed earlier, whereas in the former, his/her body has begun eliminating the earlier-consumed alcohol from their body. Why is this relevant? Well, it's simple: if the suspect consumed a large quantity of alcohol immediately before driving, then the suspect's body would likely be in the absorption phase, which means that there is a good possibility that his/her peak blood-alcohol level is yet to be reached. This is known as the Bolus Drinking Defence. This defence allows the suspect to testify him/herself as to the time and quantity of consumption, as well as have others who were with them testify on the same. In the absence of the conclusiveness of the breath tests (because taken outside two hours), the door is swung open to alternative/competing evidence which may (logically) contradict the results of those tests.

The Classification of Offences in Canada

The Classification of Offences in Canada



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Summary Conviction Offences


These types of offences can only be heard in the Court of Criminal Jurisdiction. They are also time bared under the Statute of Limitations – a charge can only be laid prior to 6 months after the commission of the crime – sec. 786(2) of the Criminal CodeA summary conviction charge will begin with a document called an information (which contains alleged facts by the police and prosecution on the case). The maximum sentence for a summary conviction offence is 6 months imprisonment or a $2,000 fine, or both.

Appeals for summary conviction offences are heard in the province’s Superior Court.


Indictable Offences

An accused can choose the trial either to be heard by a provincial court judge in the Court of Criminal Jurisdiction, a Superior Court Judge in the Superior Court of Criminal Jurisdiction, or by a Superior Court Judge and jury. This choosing process is referred to as an election.

Sec. 469 of the Criminal Code lists a series of offences which MUST be heard by a judge and jury, giving the accused no choice of election – usually more serious indictable offences.

Sec. 553 of the  Criminal Code lists a series of offences which MUST be heard by a provincial judge – usually the less serious of the indictable offences - again, leaving the accused with no choice of election.

For trials headed to a Superior Court, they must first pass preliminary inquiry at the provincial court level (evidentiary hearing). Some indictable charges will begin with a document called an information, but once past the preliminary inquiry, the prosecution will re-file a document called an indictment in the Superior Court where the trial is to be heard.

Indictable offences are those usually classified as having a maximum sentence that exceeds 2 years (that’s not to say that that is the sentence that will be imposed).

Appeals for indictable offences are heard by the province’s Court of Appeal – with leave to the Supreme Court in certain matters.

Monday, 23 April 2012

How You May Be Liable For Someone Else's Crime

How You May Be Liable For Someone Else's Crime

Counselling A Criminal Offence





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In R v. Sharpe, the Supreme Court held in this case that while the word “counsel” could have the ordinary meaning of “to advise”, for the purpose of the criminal law it must be limited to cases of actively inducing.

In R v. Hamiltonthe Actus Reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. The Mens Rea for counselling is where the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.


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The Law Of Criminal Conspiracy - A Brief Introduction


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The essential elements of a conspiracy are:
  1. The intention to agree;
  2. Completion of the agreement; and
  3. A common design to do something unlawful

The offence is complete before any acts, which go beyond mere preparation, are taken to put the design into effect – more preliminary than attempt crimes
Impossibility (factual) affords no defense to conspiracy

In R v. Gralewiczthe appellants were charged with unlawfully conspire to prevent members of a union from participating in the lawful activities of their union. The facts of the case, and the reasoning provided by counsel for the respondent are not important. Suffice it to say that this case centered upon the issue of whether or not the meaning of “unlawful purpose” alluded to in the section of the Code (namely, sec. 465) could include offences that were unlawful under the common lawThe respondents argued that since the crime of conspiracy, as enacted by the Code, developed out of the common law, then the law necessarily has to include actions which the common law defined to be “unlawful purposes” for the purpose of a conspiracy charge. The Supreme Court agreed that the law of conspiracy, as enacted by the Code, did evolve from the common law, it did not agree that its mere enactment into a statutory offence would have the effect of extending its scope beyond that which the Code covered. Their Justiceships specifically cited sec. 8 of the Code as restricting them (the courts) from creating new criminal offences at common law, and removing from Canadian law all common law offences that are of force, or were in force, from the law of England. As such, the conduct alluded to in the indictment (namely, the conspiracy to prevent union members from exercising their rights), was not, of itself, an unlawful purpose or act within the meaning of the Code, or any other Federal or Provincial statute. As such, their Justiceships concluded that in order for a charge of conspiracy to stand, the unlawful purpose must be something prohibited by law.

In R v. Innocente, the appellant sought the leave of the Nova Scotia Court of Appeal against a charge by the Crown of conspiracy to traffic in narcotics. The appellant alleges that he had already been in jeopardy for this behaviour at the earlier trial and had been convicted of it, and so could not be placed on trail a second time for the same offence. The facts are that the appellant was charged and convicted for conspiring to traffic in narcotics in an earlier trial, but that that indictment only specified cannabis resign as the object of the conspiracy. The new indictment includes the trafficking of cocaine. As such, the Crown contends that the inclusion of a new object warrants a separate charge, distinct from the first. Thus, the question for the Court of Appeal in this case is whether new evidence that is pertinent to the object of the conspiracy (Ex. the inclusion of a new drug) can give rise to separate charges if there is no evidence (or if there is evidence that fails to pass the reasonable doubt standard) that the agreements for the different objects took place and materially different times. The Court of Appeal, drawing on earlier decisions such as R v. Saunders, concluded that the inclusion of a new object into the conspiracy could not warrant new charges. They stated that without evidence proving that the agreements to traffic the different drugs were made at materially different times, then the conspiracy to traffic both drugs must be taken to have occurred at the same time, and consequently, only warrant one charge. It is up to the Crown upon discovery of the new object to the conspiracy to file a motion with the court to amend the charges so as to include the new object.


If you have a question regarding the content of this blog, or wish to seek further legal advice on a related issue, please visit www.ghobriallaw.ca.



My Zimbio

The Law On Attempted Crimes (Incomplete Crimes) - An Introduction


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In R v. Cline, the court stated that “… The consummation of a crime usually comprises a series of acts which have their genesis in and idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next stop in the series of acts done by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime. The connection is in fact proximate.” – Laidlaw J.A.

In R v. Ancio, the appellant was acquitted by the Court of Appeal for attempted murder, and the Crown appealed his acquittal to the Supreme Court. The appellant took a sawed-off shotgun to the residence of a man whom his wife was living with. In a struggle that ensued, the gun was accidentally discharged, not striking the man. The appellant contends that he had no intention to kill. The Crown seeks to overturn the Court of Appeals decision that the necessary Mens Rea required for attempted murder is “an intention to cause death, or an intention to cause bodily harm knowing it to be likely to cause death and being reckless whether death ensues.” The Crown relies squarely on the idea that sec. 24 and 231 of the CC should be interpreted in conjunction with one another to give rise to a lower Mens Rea threshold. They argue that the intention for attempted murder should extend to an intention to do that which constitutes the commission of the offence of murder as defined in sec. 230 and 231 – certain unlawful acts which, if committed and death ensues, which be considered murder regardless of intention. The Supreme Court, in affirming, yet modifying the Court of Appeal’s decision began by: 
  • First identifying the fundamental differences between inchoate and complete crimes: They stated that while it is the Actus Reus which is the most important aspect in complete crimes and the aspect sought to be most deterred, it is the Mens Rea in inchoate crimes which is of primary importance. Thus, special attention must be paid to the Mens Rea in assessing the requirements for inchoate crimes.
  • Second, without invoking Charter considerations, they stated that they “find it impossible to conclude that a person may intend to commit the unintentional killings described in sec. 230 and 231” which the Crown relies on to advance their argument. They specifically cite academic critique which states that “it is illogical to insist upon a higher degree of Mens Rea for attempted murder, while accepting a lower degree amount to recklessness for murder.” They rebut this by stating that “if there is any illogic in this matter, it is the statutory characterization of unintentional killings as murder” – citing obviously sec. 230 and 231.

Thus, they concluded that the Mens Rea for attempted murder is the specific intent to kill.


In R v. Sorrell and Bondettthe appellants were charged and acquitted for attempted robbery. The facts of the case are that both accused showed up at a pizza store around closing time, but were rejected entry because the store had closed early. The cashier witnessed one of the men holding a gun in their hand, and both men were wearing ski masks. They were apprehended a short while later down the street. The Crown appealed the trial judge’s acquittal on the grounds that he erred in law in applying evidence, which he had accepted as reliable, which should have amounted to a guilty verdict. It is to be remembered that “whether an act by a person who has intent to commit an offence is or is not mere preparation to commit the offence is a question of law”. The Ontario Court of Appeal was of this opinion: first, in order to establish the commission of attempted robbery, it is necessary for the Crown to prove that the respondents:
  1. Intended to do that which would in law amount to robbery (Mens Rea)
  2. Took steps in carrying out that intent which amount to more than mere preparation

The Court of Appeal was adamant that it is not logical or appropriate to make a determination whether the acts of the respondents went beyond mere preparation until you first find the intent with which those acts were done. In this case, there was no evidence of intent to rob other than that furnished by the acts relied on as constituting the Actus ReusTherefore, they concluded, that in the absence of extrinsic evidence (such as statements of intention or admissions by the respondents showing what their intention was) acts of the accused, which on their face are equivocal, may be insufficient to show that the acts were done with the intent to commit the crime, and hence insufficient to establish the offence of attempt.



In R v. Deutschthe appellant was charged, acquitted, and convicted on appeal on the charge of attempting to procure a person to have illicit sexual intercourse with another person, contrary to sec. 195(1)(a) of the CC. The appellant is an employer who advertized an employment opportunity for a secretary/sales assistant in local newspapers. While attending the interview, an undercover police officer was told by the appellant that a job requirement would be to potentially have sexual intercourse with clients in order to finalize business deals.At first instance, the trial judge found that the necessary Mens Rea was present, in that he intended that a person hired for the position should have sexual relations with clients, but he held, as a matter of law, that the acts or statements of the appellant did not, in the absence of an offer of employment, constitute the Actus Reus of an attempt to procure. Therefore, the question before the Supreme Court was “when do the acts of the appellant amount to more than mere preparation”. Their Justiceships cited with approval a statement made by Laidlaw J.A. in R v. Cline, where he said

The Actus Reus must be more than mere preparation. But when the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an Actus Reus sufficient in law to establish a criminal attempt to commit that crime.”

In adding to that statement, their Justiceships stated that “relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt.” Additionally, they said that “an act which on its face is an act of commission does not lose its quality as the Actus Reus of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence.” For the case at bar, the Supreme Court held that the act which broke the barrier between mere preparation and “next step” was the holding out of the large financial rewards the secretary would have made during the course of the interviews. They came to this conclusion because they felt that there would be little else that the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment.

In United States v. Dynarthe respondent was part of a failed undercover sting conducted by the FBI where his role was to launder money, which he believed to be the proceeds of crime, but that, in fact, were not – the money was never laundered because of the FBI’s failure. The Canadian law, as it stood at the time, required that money actually be the proceeds of a crime in order to find guilt for a charge of laundering. Because of this discrepancy between national laws, the respondent contends that his alleged conduct amounts to a legal impossibility – that being, that even if he believed his conduct was illegal in that he agreed to launder money, it was in fact not illegal under Canadian law to do so unless the money was from the proceeds of a crime – which it was not, since it was US Government money used for the sting. He further contends that with regards to attempted crimes, sec. 24(1)’s reference to the impossibility of crimes – “…whether or not it was possible under the circumstances to commit the offence – relates only to what he calls factual impossibilities and not legal possibilities. The Supreme Court, in disagreeing with the respondent’s legal contentions, seeks to: 
  1. Clarify the meaning of sec. 24(1) with respect to impossibility, and
  2. Clarify the long standing distinction between factual and legal impossibility.

In Canadian law, they stated, there is no such concept as that of legal impossibility – rather there is something known as imaginary crimes – discussed below. In assessing whether or not the respondent committed an illegal act, the Supreme Court drew up a number of scenarios which all led to the impossibility of the crime occurring. First, they drew the picture of the criminal who attempts to pickpocket someone only to find an empty pocket, and the man who intends to steal someone else’s umbrella, only to steal his own. They are both guilty of attempted crimes. Their Justiceships stated that “each takes some steps in the direction of consummating their design (criminal design that is). And each is thwarted by a defect in the attendant circumstances, by an objective reality over which he has no control.” They go on to say that “just because a man’s design is premised on a mistaken understanding of the facts (the fact that the umbrella stolen belonged to him) does not make it any less his design. A mistaken belief cannot be eliminated from the description of a person’s mental state simply because it is mistaken. If it were otherwise, the effect would be to eliminate from our criminal law the defense of mistaken belief.” Therefore, if a person takes active steps in the pursuit of conduct which he knows to be illegal, but because of some factual circumstance, his conduct is not illegal in its result, he is still guilty of an attempt to commit that crime since he had the requisite Mens Rea required and took steps to fulfill his design that are more than merely preparatory. This type of scenario falls within the ambit of factual impossibilityThe Supreme Court, however, sought to draw the distinction of the above scenario from one in which a person brings sugar into Canada, believing its importation to be an offence. In the former scenario, the would-be thief has the Mens Rea associated with thievery. However, in the latter scenario, the would-be smuggler has no Mens Rea known to law, since it is not illegal to do what he did. This is known as the imaginary crime. Applying these principles to the case at bar, one can say the following: the respondent necessarily falls into the former scenario (that being one of factual impossibility). While it might be a necessity of Canadian law that the money need be from the proceeds of a crime in order to justify a laundering conviction, the appellant did not know this. He was, admittedly, under the impression that it was from the proceeds of crime. Therefore, he possessed the necessary Mens Rea for laundering – a Mens Rea which is recognized by law – and took steps that amounted to more than mere preparation to furnish the commission of the crime. As such, his appeal not to be extradited was dismissed.


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Self-Defence - An Introduction


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The Criminal Code definition of Self-Defence is as follows: 
  • Sec. 34(1) – generally applies where a person has been unlawfully assaulted, without having provoked the assault. Force may be repelled by force provided the responsive force is not intended to cause death or GBH and is no more than necessary to enable the accused to defend themselves. No further use of force is justified.
  • Sec. 34(2) – is more specific. The subsection applies where the responsive force applied by one who has been unlawfully assaulted by another causes death or GBH, and requires that the death of or GBH to the assailant be caused under a reasonable apprehension of death or GBH from the initial assault or its pursuit. The responsive force must be inflicted in the belief, on reasonable grounds, that the person assaulted cannot otherwise preserve oneself from death or GBH. The use of “reasonable” imports an objective element. Unlike sec. 34(1), this provision applies even where the accused has provoked the assault.


Therefore, sec. 34(2) applies even where (1) the accused provoked the assault, (2) even if the accused intended to kill or cause GBH, and (3) the question is not whether more force was used than necessary, but whether the accused believed on reasonable grounds that he could not otherwise preserve himself from death or GBH.

In R v. Pintar, the accused was charged with two counts of second degree murder. The facts of the case are not important, however the Ontario Court of Appeal took the opportunity presented in this case to give clearer guidance to trial judges on their charge to the jury. They stated that trial judges should consider the following guidelines when faced with the prospect of charging a jury on the law of self-defence:
  1. Consider the evidence carefully with a view to determining the essence of the claim to self-defence and the Code provision(s) realistically available to that claim.
  2. To the extent that the evidence fails the “air of reality” test in respect of one or more of the constituent elements of a particular provision, that provision should not be left with the jury.
  3. To the extent that the evidence clearly establishes one or more of the constituent elements of a particular provision, Crown counsel should be encouraged to admit the underlying facts and thereby avoid unnecessary legal instruction.
  4. Where a particular provision affords the accused a wider scope of justification than a companion provision, the narrower provision should only be put to the jury if the evidence lends an “air of reality” to the factual underpinnings of that provision, and the provision somehow fills a gap unaccounted for in the justification afforded by the wider provision.

In regards to the similarities between sec. 34(1) and sec. 34(2), and the tendency of trial judges to instruct the jury on both, the Court of Appeal stated that “since provocation and intent are matters of fact for the jury, sec. 34(1) cannot be ruled out, even though the scope of its justification is much narrower than that provided for by sec. 34(2)The question then becomes whether the risk of confusing the jury and complicating the charge itself justifies the inclusion of instruction under sec. 34(1), when its application is at best tenuous and its scope of justification narrower than that available under sec. 34(2). The Court of Appeal came to the conclusion that when trial judges are faced with situations like this, they should call upon counsel to justify instruction on the narrower provision. If the results of that exercise reveal either the lack of an evidentiary base for putting the narrower provision, or an inability to demonstrate how the narrower provision might be available to fill a gap not provided for by the broader one, the narrower provision should be discarded.


In R v. Deeganthe Alberta Court of Appeal was faced with the question of whether a retreat by the accused is imperative for the invocation of self-defence. The Court rejected that proposition, citing the Supreme Court decision in R v. Howe, where Dickson C.J. advocated the removal of the “retreat” criterion. He stated “Rationally, the failure to retreat is a circumstance to be considered with all others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt Detached reflection cannot be demanded in the presence of an uplifted knife.”

In R v. Lavalleethe appellant was a battered woman in a volatile common law relationship who killed her partner late one night by shooting him in the back of the head as he left her room. She pleaded self-defence and was acquitted at first instance, but that decision was overturned by the Manitoba Court of Appeal. In allowing the appellants appeal, the Supreme Court stated that there are two elements of the defence under sec. 34(2) of the Code which merit scrutiny for present purposes. The first is the temporal connection in sec. 34(2)(a) between the apprehension of death of GBH and the act allegedly taken in self-defence – was the appellant “under reasonable apprehension” of death or GBH at the time alleged? The second is the assessment in sec. 34(2)(b) of the magnitude of the force used by the accused – was the accused’s belief that she could not “otherwise preserve herself from death or GBH” except by shooting the deceased based on reasonable grounds? The feature common to both sections is the imposition of an objective standard of reasonableness on the apprehension of death and the need to repel the assault with deadly force. The traditional view has been that if there is a significant time interval between the original unlawful assault and the accused’s response, one tends to suspect that the accused was motivated by revenge rather than self-defence. This was the majority’s decision in R v. Whynot, where the court held that “… no person has the right in anticipation of an assault that may or may not happen, to apply force to prevent the imaginary assault.” The implication of this statement is that it is inherently unreasonable to apprehend death or GBH unless and until the physical assault is actually in progress, at which point the victim can presumably gauge the requisite amount of force needed to repel the attack and act accordingly. This theory may seem cogent, but it fails once one considers the nature of the battered woman’s syndrome. Expert evidence heard during the trial put forward what is known as the Walker Cycle Theory of Violence. Essentially this theory states that there are three distinct phases associated in a recurring battering cycle: 
  • First, there is tension building, where there is a gradual escalation of tension displayed by discrete acts causing increased friction such as name-calling, other intention behaviours, and/or physical abuse. The woman attempts to do what she thinks might please him, or at least, what will not further aggravate him. However, the tension continues to build. Exhausted from the constant stress, she usually withdraws from the batterer. He begins to move more oppressively toward her as he observes her withdrawal. 
  • The second phase is characterized by the uncontrollable discharge of the tensions that have built up during phase one. The batterer typically unleashes a barrage of verbal and physical aggression that can leave the woman severely shaken and injured. This is the phase when injuries usually occur. 
  • The third phase is where the batterer may apologize profusely, try to assist his victim, show kindness and remorse, and shower her with gifts or promises. This is the phase which provides positive reinforcement for remaining in the relationship

A battered woman is someone who has gone through the phases at least twice. The relevance of such a theory is many-fold. 

  • First, the mental state of an accused at the critical moment she pulls the trigger cannot be understood except in terms of the cumulative effect of months or years of brutality. 
  • Second, an aspect of the cyclical nature of the abuse is that it begets a degree of predictability to the violence. This means that it may in fact be possible for a battered spouse to accurately predict the onset of violence before the first blow is struck. Research shows that battered woman can say what made the final episode of violence different from the others: they can name the features of the last battering that enabled them to know that this episode would result in life-threatening action. 

Thus, expert testimony can assist the jury in determining whether the accused had a “reasonable apprehension of death” when she acted by explaining the heightened sensitivity of a battered woman to her partner’s acts.


Sec. 34(2) requires that an accused who pleads self-defence to believe “on reasonable grounds” that it is not possible to otherwise preserve herself. Thus, her failure to leave the abusive relationship earlier may be used in support of the proposition that she was free to leave at the final moment. Expert testimony can provide useful insights on this issue as well. A lot has been written in recent years about this phenomenon – namely, the battered spouse staying with the batterer. There are said to be two main reasons why this occurs. First, the abused spouse gets beaten so badly that she loses the motivation to react and becomes helpless and powerless. Second, the batterer often begs for forgiveness, and the battered spouse (who is suffering at this point from a damaged self-esteem) feels needed and his desire to keep her around makes her feel worthwhile. Another view which rests on a similar footing is what is known as traumatic bonding. This has been observed between hostages and captors, concentration camp prisoners and guards, etc…

Therefore, the Supreme Court concluded that it is not for the jury to pass judgement on the fact that an accused battered woman stayed in the relationship. Still less is it entitled to concluded that she forfeited her right to self-defence for having done so.  The question the jury must ask itself is “whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by the batterer that night except by killing him first was reasonable”.


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