National Committee on Accreditation

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Federation of Law Societies of Canada

National Committee on Accreditation

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SAMPLE

Examination for

Criminal Law

For educational purposes only. This document may not be reproduced or distributed in whole or in part without the prior written permission of the Federation of Law Societies of Canada. Aux fins de formation personnelle seulement. Ce document ne peut être reproduit ou distribué en totalité ou en partie sans la permission écrite préalable de la Fédération des ordres professionels de juristes du Canada.

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© 2014 Federation of Law Societies of Canada. All Rights Reserved.

© 2014 Fédération des ordres professionnels de juristes du Canada. Tous droits réservés.

SAMPLE Examination for Criminal Law

WRITE LEGIBLY. Writing considered illegible by the examiner may result in your exam not being fully graded or your exam being disqualified.

You must return the exam questions in the envelope provided along with your answers. Failure to return the questions will result in the automatic disqualification of your exam.

The contents of the examination, including the exam questions, must not be disclosed or discussed with others.

Instructions specific to this exam:

1. Each exam may have its own special instructions therefore it is important for you to read these carefully before

starting.

2. These sample exams are simply indications of the style/types of questions which may be asked in each exam; they do not reflect the content or actual format/structure of questions nor of their value.

3. Actual exams vary from subject to subject and from exam session to exam session.

General Conditions of the exam:

This is a three (3) Hours, open book exam

Answers should be doubled - spaced and written in blue or black ink ( no pencils ).

All answers must be completed on the pads provided.

The examination will be graded on a pass/fail basis (50% is a pass).

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Question 01

QUESTION ONE - 15 MARKS (18 minutes suggested time)

Bosny is charged with the first degree murder of his wife, contrary to section 231(2) of the Criminal

Code of Canada. A preliminary inquiry is being conducted. The Crown’s allegation is that Bosny

strangled her. Evidence showed that Mrs. Bosny was found, barely alive, floating in the backyard

swimming pool by the family housekeeper at 9:00 on a Wednesday morning. An ambulance was

immediately dispatched, and the paramedics attempted to resuscitate her. A tracheal tube was

forced into her throat to open her airways and she was given CPR. In spite of the efforts, Mrs. Bosny

died. During the preliminary inquiry the Crown called this background evidence, as well as a

pathologist, Dr. Curran. Dr. Curran testified that on his examination he discovered that Mrs. Bosny

had contusions or bruising on the left side of her brain as well as a matching external bruise to her

forehead. Together the bruises were consistent with her having received a strong blow to the head.

He also determined that she had damage to the inside of her throat, which in his opinion could have

been caused by manual strangulation. He did not observe any petechial haemorrhages, nor was the

hyoid bone fractured - two positive but not indispensable indicia of strangulation. There was only a

moderate amount of water in her lungs, and this did not, in the opinion of the pathologist, cause her

death. Defence counsel produced a significant amount of medical literature during the cross

examination of the pathologist to show that according to generally accepted standards of practice,

pathologists will not identify strangulation as a cause of death without two of three symptoms –

external bruising on the neck, petechial haemorrhages, and fractures in the small bones of the neck,

none of which were present. Dr. Curran agreed that the injuries inside the neck could be caused by

the insertion of a tracheal tube, but he did not think so here, although he had never seen the kind of

damage such a tube could make if used aggressively. A representative of the Regional Bank was

called to testify. He gave evidence that Bosny’s business was in money trouble. A representative of

Hart Insurance testified that around the time of Mrs. Bosny’s death, he could not be sure exactly

when because he did not keep any notes, Bosny called to check on the status of their insurance

policies because he was “thinking of taking his book of business elsewhere.” The representative

testified that he told Bosny that his life and the life of his wife were each insured for $1,000,000. A

police officer testified that when he visited Bosny to tell him about the death of Mrs. Bosny he did not

seem shocked, and said, “I hope you don’t think I have anything to do with that because of our fight

this morning.” The defence called one witness, Bosny’s daughter, who testified that her Mom and

Dad used the word “fight” to describe verbal disagreements, and that her Dad was a caring husband.

Will Bosny be committed to stand trial on first degree murder?

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Question 02

QUESTION TWO - 10 MARKS (18 minutes suggested time) Assume that Bosny was committed to stand trial and that the trial is now being held. All of the evidence that

was led at the preliminary inquiry has been presented at the trial. In addition, evidence has been resented to

the effect that Mr. Bosny admitted to having been home shortly before Mrs. Bosny’s death, and that the two

had been arguing near the pool. Mr. Bosny admitted that he struck out at Mrs. Bosny, hitting her near the

temple. She seemed dazed but said she was O.K. so he left for work. A friend of Mrs. Bosny testified that was

on the telephone with Mrs. Bosny around 8:50 in the morning, and that Mrs. Bosny sounded confused. Mrs.

Bosny said told her either that Bosny “was hitting her” or “had hit her,” the friend could not be clear. During the

conversation Mrs. Bosny stopped responding. The friend ultimately hung up and called the police. A defence

pathologist testified that Mrs. Bosny was not strangled, but had in fact asphyxiated. She showed that Mrs.

Bosny had none of the classic indicators of strangulation, and offered the opinion that Mrs. Bosny, who was

already oxygen deprived from having fallen into the pool, suffocated due to improper resuscitation techniques.

The tracheal tube is a sharp plastic device that is literally forced into the throat, and the tube that was used,

which the defence pathologist reviewed, had collapsed and had human tissue on it. This accounted both for

her neck injuries and the asphyxiation. What verdict is likely to render on all of the evidence, explaining your

answer fully.

Question 03

QUESTION THREE - 15 MARKS (36 minutes suggested time) Carl, a twenty-seven year old single father of two, has been charged with three counts of criminal negligence

causing injury, contrary to section 221 of the Criminal Code of Canada arising out of a car accident in which

his two daughters and a driver of another vehicle were seriously injured. The accident happened the day after Carl learned that his wife had died suddenly at work. Feeling distraught, Carl begun to drive to his mother’s

home, in a small town fifty kilometers from the City. He had the children with him. He did not know how he was

going to care for her children with his wife gone. Carl does not know why he did it, but he stopped at a

restaurant-bar for a drink on the way to his mother’s home. Carl had three beers and then left the restaurant.

Just past the bar, a Dodge Dart vehicle proceeding ten or so kilometers over the speed limit was easily passed

by Carl’s vehicle. Carl pulled his vehicle in front of the Dodge Dart so suddenly after he passed it that the driver

worried for a second that Carl would clip the front of his car. Carl’s vehicle sped around the curve and the

Dodge Dart lost sight of it.

On a straight stretch the driver of the Dodge Dart could see Carl’s vehicle passing another vehicle, even though

there appeared to be an oncoming vehicle that was too close for comfort. Carl’s vehicle passed successfully, and disappeared again around the curve. When the Dodge Dart rounded

that curve, the driver heard a violent collision down the road and could see cars spinning in a cloud of dust and

debris. Carl’s vehicle had collided with another vehicle head on. Skid marks and debris at the scene show that the

collision happened on a straight stretch of road, but in Carl’s lane. An expert accident reconstructionist testified

that there is a syndrome called “fake left” where a driver, seeing a vehicle coming at him in his own lane, will

move into the lane that the oncoming vehicle should be in, in a desperate attempt to avoid a collision. Where

this happens, the collision occurs in the wrong lane, making it appear as if the “innocent” driver was

responsible. While the accident reconstructionist could not say what happened here based on the debris and

skid marks, that syndrome does exist. Will Carl be convicted? Explain your answer fully. Law

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Question 04

QUESTION FOUR - 20 MARKS (36 minutes suggested time)

Assume that Carl has been convicted of the offences charged. The sentencing judge learns, in

addition to the foregoing facts, that at the time of the accident Carl was a recovering alcoholic. He is

an aboriginal, although he has never lived on a reserve, having been adopted by a white family when

he was three years old. He is a gainfully employed millwright working at a factory. As a recovering

alcoholic Carl knew better than to drive after drinking, particularly given his two prior impaired driving

convictions. Carl explained that he began to feel better after two beers and decided to order a third

beer which he drank while his children played around the video games in the corner. While drinking

the third beer he became increasingly disconsolate. He knew that between the alcohol and his grief

he was in no condition to drive, but he reasoned that, although he did not want it to happen, if he

and the children were to die in a crash, they could be with his wife and would certainly be no worse

off. He “just wasn’t thinking right.” Carl left the bar after promising the server that he was not going

to drive, and immediately piled the children into the car. Both of Carl’s children were seriously hurt.

His youngest daughter, Emma, remains in a coma and is unlikely to recover. Brigitte has largely

recovered from serious leg fractures and head injuries. The other driver, Sam, is recovered but he

too suffered head injuries and has no memory of the accident. Carl, who was released on bail, is

caring for Brigitte, and she is very close to her father. He has resumed attendance at Alcoholics

Anonymous and has not had a drink since. He is overwrought with guilt for what happened to Emma

and he has told the court that he has to remain strong for his girls, particularly Emma, for he needs

to be there when she wakes up. You are the sentencing judge. Impose a reasoned

sentence on Carl for his offences.

QUESTION FIVE - 20 MARKS (36 minutes suggested time)

Parent is a corrections officer at a federal penitentiary. When the institutional head is absent, he is designated to be the acting head, to attend to any matters that arise. Last November there was an incident in the cafeteria. An inmate, Carter, was causing a disturbance and had to be restrained.

While he was being held he continued to resist and a guard, Molitor, used a truncheon or club to slap

Carter’s legs in an effort to subdue him. Parent happened to be in the room at the time, and he

summoned a health care worker to inspect Carter’s legs when he had settled down. The nurse noted

redness and swelling and said, “this will bruise up good but nothing more.” She told Carter to keep

an eye on things. The next day Carter began to complain about intense pain in his leg. That evening

he collapsed. He had a pulmonary embolism, caused by a blood clot, and he almost died. He has

since recovered. Parent learned that Carter had collapsed, and learned a week later that Carter had

had an embolism, but he did not connect this in his mind to the clubbing incident. At no time were

Question 05

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the police notified of the incident, and no report was ever submitted to the regional head. This failing

was discovered when Carter tried to sue the Ministry of Corrections. He has laid a complaint against Parent, contrary to section 73(2) of the Corrections and Conditional Release Act Regulations. The

relevant provisions are as follows: 73(1) Where a person suffers an injury or death in a penitentiary as a result of the use of force, any staff member who has knowledge of the incident shall immediately call health care staff to the scene and notify the institutional head of a staff member designated by the institutional head

73(2) Where the institutional head or staff member designated by the institutional head is notified pursuant to subsection (1) of a serious personal injury or a death, the institutional head or staff member shall, as soon as practicable

(a) notify the head of the region and the appropriate police department, and

(b) submit a report to the regional head that details all of the circumstances that led

to the injury or death.

111. Any person who contravenes any provision of this Act is guilty of an offence punishable

on summary conviction.

You are clerking with the Crown Attorney who has to decide whether to stay the charges that Parent

has laid, or whether to proceed with them. Parent’s lawyer has written to you asking that the

charges be stayed because, among other things, section 73(2) is triggered only when the

designated staff head is notified under section 73(1) and Parent was never “notified” as he had

seen the attack himself; that Parent did not know about any serious injuries arising from the attack,

and that Parent did not intentionally omit to fulfill his duty. Provide a memo indicating your opinion

as to whether there is a reasonable prospect that Parent has committed the offence charged, giving

a complete analysis of the appropriate legal standards.

1 Please be advised that in actual fact, it is not a prosecutable offence to violate section 73(1) or

73(2). These are mere administrative duties. Section 111 has been created by the evaluator for

the purposes of this exam. Please answer the question on the assumption that section 111 exists

in the form you have been provided, and that section 73(1) and 73(2) are indeed prosecutable

infractions.

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Question 06

QUESTION SIX - 20 MARKS (36 minutes suggested time)

Stetson was an inmate in a provincial jail, serving a one year sentence for drug trafficking.

While inside e continued to traffic drugs that were smuggled into the jail by his street gang.

Last June he had promised to supply drugs to an inmate named Jimbo. He was afraid of Jimbo

because Jimbo had been in a rival gang on the outside, and Stetson tried to stay clear of him but

he was put on the spot. Unfortunately, the drugs Stetson supplied to Jimbo turned out to be bad

and Jimbo became ill and died. No-one could trace the drugs to Stetson, although there was word

in the jail that Stetson was responsible,1 and Stetson heard rumblings that he had poisoned Jimbo

on purpose. Stetson, who had a history of anxiety disorders, with schizoid tendencies and some

history of breaking with reality, was becoming increasingly afraid. He found that he would become

paranoid when consuming drugs, which he continued to do on regular occasions. One day one of

his fellow inmates, Clayton, told him that word on the street was that Stetson was going to be killed

as soon as he was released from jail. After that, Stetson would intentionally break prison rules in

order to be placed in solitary confinement. In late July he was back in the general prison population

when he bumped into a man named Adam, who looked familiar to Stetson. Adam said something

and Stetson punched at him. As the two men were pulled apart, Adam told Stetson his time would

come. Stetson was put in solitary confinement overnight. The next day Adam and Stetson ended

up in the television room together. Adam said, “enjoy your last day?” Adam

1 intended it to be a reference to Stetson’s time in solitary, but Stetson interpreted it as threat that

this was going to be his last day on earth. He reached into his waste and pulled out a sharp piece

of metal he had been carrying and stabbed Adam in the neck twice. Adam barely survived. Stetson

was shaking uncontrollably when he was overpowered and disarmed by the guards. He was unable

to speak. After an hour in the infirmary, he told the doctor that he does not recall what happened

other than that Adam was going to kill him. Stetson has been charged with attempted murder. You

have been retained by Stetson. Prepare a memo to the file indicating whether he will be able to

use the defences of self-defense, provocation, and/or mental disorder.

End of Examination

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Question 07

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Question 08

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Question 09

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Question 10

R. v. Martineau, [1990] 2 S.C.R One evening in February 1985, Patrick Tremblay and 15-year-old Mr. Martineau set out to rob a trailer owned by the

McLean family in Valleyview, Alberta. Martineau was armed with a pellet gun and Tremblay was armed with a rifle.

Martineau was under the impression they were going to commit only breaking and entering and that no one would be

killed. However, during the robbery, Tremblay shot and killed Mr. and Mrs. McLean.

Martineau was charged with second degree murder under section 213(a) and (d) of the Criminal Code (now section 230(a)

and (d)) for both deaths (under section 21(1) and (2)) and was transferred to adult court.

At trial, Martineau was convicted. On appeal, the Alberta Court of Appeal overturned the decision, holding that section

213(a) violated section 7 and section 11(d) of the Canadian Charter of Rights and Freedoms ("Charter").

The issue before the Supreme Court was whether the appeal court was correct in holding section 213(a) as a violation of

sections 7 and 11(d) of the Charter.

Ruling

The Supreme Court upheld the ruling of the Appeal Court, holding that section 213(a) violated the Charter and could not

be saved under section 1. Majority

The Majority was written by Lamer CJC with Dickson CJC, Wilson, Gonthier and Cory JJ concurring.

Section 213(a) is known as the "constructive murder" provision of the Criminal Code. Section 213(a) defined culpable

homicide as murder if a person causes the death of another human while committing specific indictable offences, such

as breaking and entering. One could be charged with murder under section 213(a) despite having neither an intent to kill

nor the subjective knowledge that death might ensue from one's actions. That was in contrast to the other murder

provisions in the Code, which require a subjective intent and foresight for a conviction.

Section 213(a) of the Code violated both sections 7 and 11(d) of the Charter. Specifically, it violated the principle of

fundamental justice that an appropriate mens rea must be proven by the Crown. Furthermore, the appropriate level of

mens rea should be correlated to the severity of the punishment and the social stigma stemming from conviction. Murder

is a major indictable offence: both the punishment and stigma stemming from conviction are severe. They were the case

so the state must show subjective foresight and intent to prove the offence. However, as stated above, such a

requirement was absent from section 213(a). Thus, the violation was not justifiable under section 1 of the Charter because

it failed the proportionality test.

Objective fault may sometimes suffice for criminal liability. There are certain crimes because of nature of stigma or availability of

penalties the fundamental justice requires mens rea of the offence

s.213(d) does not even require objective foresight. All that’s required is the mens rea of the underlying offence (intent to commit

robbery) and fact that weapon is used. No additional mental element at all. All that is required is that the accused uses a weapon

while committing a robbery even though he didn’t intend to kill anybody and didn’t know that the likelihood that death would

ensure, nor objectively foreseeable. Another reasonable person wouldn’t have been aware of the likelihood that someone could be

killed since he saw the bullets being unloaded from the gun.

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Question 11

(Common Law purpose) Aider and abettor. S.22.1 Criminal law -- Constructive murder -- Fundamental justice -- Presumption of innocence -- Death caused by accomplice

during robbery -- Proof of intentional dangerous conduct causing death substituted for proof of mens rea with respect

to death of victim -- Accused's conviction possible notwithstanding existence of reasonable doubt on essential element

-- Whether s.

213(d) of the Criminal Code violates ss. 7 or 11 (d) of the Charter -- If so, whether such violation justifiable under s. 1

of the Charter . During an armed robbery in a pool hall, appellant's accomplice shot and killed a client. The accomplice

managed to escape but appellant was arrested and convicted of second degree murder as a party to the offence

pursuant to ss. 21(2) and 213 (d) of the Criminal Code . Section 213 (d) provides that "Culpable homicide is murder

where a person causes the death of a human being while committing or attempting to commit ... robbery ... whether

or not the person means to cause death to any human being and whether or not he knows that death is likely to be

caused to any human being, if ... he uses a weapon or has it upon his person during or at the time he commits or

attempts to commit the offence ... and the death ensues as a consequence." At his trial before judge and jury,

appellant testified that at the time of the robbery, he was certain that the gun in possession of the accomplice was

not loaded. He stated that they had agreed to commit the robbery armed only with knives and when, on the night

of the crime, the accomplice arrived with a gun he insisted that it be unloaded. The accomplice removed three

bullets from the gun and gave them to the appellant. Appellant's glove containing the three bullets was recovered by

the police at the scene of the crime. The Court of Appeal dismissed appellant's appeal from conviction. In this Court,

he challenged the constitutional validity of s. 213 (d) of the Criminal Code . This appeal raises two constitutional

questions: (1) Is section 213(d) of the Code inconsistent with either ss. 7 or 11 (d) of the Charter and, therefore, of

no force or effect? (2) If not, is the combination of ss. 21 and 213(d) of the Code inconsistent with either ss. 7 and 11

(d) of the Charter and is s. 21 therefore of no force or effect in the case of a charge under s. 213 (d)?

Held ; In R. v Vaillancourt(1987) The SSC held that felony murder rule was a violation of fundamental justice under S.7

of the charter. The fact that an accused must have mensrea( a guilty mind) with respect to the under laying offence,

in this case, the (ROBERY/entering and breaking etc), was not sufficient to satisfy S.7. before an accused could be

found guilty of murder, S.7 required that there be mens rea with respect to the death. Therefore the FELONY-MURDER

rule was unconstitutional.

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Question 12

(11) R. v. Lavallee

Appellant, a battered woman in a volatile common law relationship, killed her partner late one night

by shooting him in the back of the head as he left her room. The shooting occurred after an argument

where the appellant had been physically abused and was fearful for her life after being taunted with

the threat that either she kill him or he would get her. She had frequently been a victim of his physical

abuse and had concocted excuses to explain her injuries to medical staff on those occasions. A

psychiatrist with extensive professional experience in the treatment of battered wives prepared a

psychiatric assessment of the appellant which was used in support of her defence of self -defence.

He explained her ongoing terror, her inability to escape the relationship despite the violence and the

continuing pattern of abuse which put her life in danger. He testified that in his opinion the appellant's

shooting of the deceased the final desperate act of a woman who sincerely believed that she would

be killed that night. In the course of his testimony, he related many things told to him by the appellant

for which there was no admissible evidence. She did not testify at the trial. The jury acquitted the

appellant but its verdict was overturned by a majority of the Manitoba Court of Appeal.

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Question 13

(13) R v Latimer

From Wikipedia, the free

encyclopedia Jump to

navigation Jump to search

This article is about the 2001 decision by the Supreme Court of Canada. For the 1997 decision, R v Latimer,

[2001] 1 SCR 3 was a decision by the Supreme Court of Canada in the controversial case of Robert Latimer, a

Saskatchewan farmer convicted of murdering his disabled daughter Tracy Latimer. The case had sparked an

intense national debate as to the ethics of what was claimed as a mercy killing.[1] In its decision, the Supreme

Court ruled that the crime could not be justified through the defence of necessity, and found that, despite

the special circumstances of the case, the lengthy prison sentence given to Latimer was not cruel and unusual

and therefore not a breach of section 12 of the Canadian Charter of Rights and Freedoms. The Court also

ruled that Latimer was not denied rights to jury nullification, as no such rights exist. The prison sentence was

thus upheld, although the Court specifically noted that the federal government had the power to pardon

him.

The Supreme Court described the background this way: Robert Latimer's daughter, Tracy Latimer, was 12

years old and had cerebral palsy. As a result, she was quadriplegic, could not speak, and had the mental

abilities of an infant. However, she was not dying of her disability. It was also believed that a feeding tube

could help her health, but her parents believed such a medical device would be "intrusive". Thus, numerous

surgeries were performed, and after the scheduling of another surgery in 1993, her father, who viewed the

upcoming operation as also being cruel, "formed the view that his daughter's life was not worth living". He

proceeded to poison her with carbon monoxide. When the police made the discovery, Latimer denied

responsibility but later admitted he had killed her. He was convicted of second degree murder, but in R v

Latimer,[2] the Supreme Court overturned that finding due to the Crown's improper actions at the jury

selection stage.

In the subsequent second trial, Latimer was again convicted of second degree murder, but he was sentenced

to only one year in prison rather than the minimum ten under the Criminal Code, since in the circumstances

of the case, ten years was viewed as cruel and unusual. The Saskatchewan Court of Appeal later increased

the sentence to ten years. Latimer eventually appealed the case to the Supreme Court, arguing not only that

the sentence was too long, but also that the trial was unfair because the judge decided the defence of

necessity could not be argued even though this decision came only after the defence had argued it. It was

also claimed the judge had misled the jury into thinking that they could influence the length of the sentence.

Since many in the jury wished for a lighter sentence than that prescribed by the Criminal Code, it was argued

the jury might have resorted to jury nullification had they known they could not decide the length of the

sentence.

The decision upholding the ten-year sentence was unanimous and was written by The Court.

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Defence of necessity

The Court first held that not only was the defence of necessity unable to justify Latimer's actions but also

the inapplicability of the defence should have been so obvious that his lawyers should have anticipated its

rejection, and therefore the fact that judge rejected it only after the defence was argued was not unfair.

The Court first cited precedent that the defence of necessity is invoked only where "true 'involuntariness'

is present". This involves being confronted with a serious danger, no other options but to commit a crime

to avoid that danger, and "proportionality between the harm inflicted and the harm avoided." While the

Court acknowledged that the individual's subjective views in measuring approaching dangers and other

options could be taken into account, along with an objective assessment (this was called a "modified

objective test"), in this case the defence of necessity failed. First, the claimed danger being avoided, the

surgery, threatened not Mr.

Latimer but his daughter. Moreover, the Court wrote that "ongoing pain did not constitute an emergency in

this case". The Court believed Mr. Latimer should have been able to understand this, especially since there

were alternatives to surgery, such as the feeding tube. The Court went on to find that Latimer had other

alternatives to killing his daughter, namely that "he could have struggled on", albeit "with what was

unquestionably a difficult situation".

The Court also ruled that subjective views could not influence an assessment whether the crime is worse,

equal or lesser than the threatened danger to the criminal, since "fundamental principles of the criminal law"

would be sacrificed. In this case, the rights of the disabled, based in section 15 of the Charter, were

considered to be the important factor in considering how serious the crime was. The Court had difficulties in

deciding whether any type of emergency could justify homicide, and at any rate found Tracy's death was

worse than the pain Tracy might have felt during life.

Jury nullification

The Court went on to reject the argument that the trial was unfair because the chances of jury nullification

were impaired by the judge. As the Court argued, there is no right to a trial in which one's chances of jury

nullification are not impaired. Indeed, the justice system is not supposed to advocate jury nullification.

Moreover, the judge's apparent suggestion that the jury might have some influence in determining the

sentence was not considered misleading or unfair because, while juries cannot decide sentences, they can

indeed make recommendations.

Question 14

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R. vs Parks

File No.: 22073.

1992: January 27; 1992: August 27.

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson* and

Iacobucci

JJ.

on appeal from the court of appeal for ontario

Criminal law -- Defences -- Automatism (sleepwalking) -- Respondent killing and injuring while

asleep -- Whether sleepwalking should be classified as non-insane automatism resulting in an acquittal or as

a "disease of the mind" (insane automatism) giving rise to the special verdict of not guilty by reason of

insanity.

Respondent attacked his parents-in-law, killing one and seriously injuring the other. The incident

occurred at their home, some 23 km. from respondent's residence, during the night while they were both

asleep in bed. Respondent had driven there by car. Immediately after the incident, the respondent went to

a nearby police station, again driving his own car, and told them what he had done.

Respondent claimed to have been sleepwalking throughout the incident. He had always been a

deep sleeper and had a great deal of trouble waking up. The year prior to the incident was particularly

stressful for the respondent and his personal life suffered. His parents-in-law were aware of his problems,

supported him and had excellent relations with him. Additionally, several members of his family suffer or

have suffered from sleep problems such as sleepwalking, adult enuresis, nightmares and sleep talking.

The respondent was charged with first degree murder and attempted murder. At the trial

respondent presented a defence of automatism. The testimony of five expert witnesses called by the

defence was not contradicted by the Crown. This evidence was that respondent was sleepwalking and that

sleepwalking is not a neurological, psychiatric or other illness. The trial judge put only the defence of

automatism to the jury, which acquitted respondent of first degree murder and then of second degree

murder. The judge then acquitted the respondent of the charge of attempted murder. The Court of Appeal

unanimously upheld the acquittal. At issue here is whether sleepwalking should be classified as non-insane

automatism resulting in an acquittal or as a "disease of the mind" (insane automatism), giving rise to the

special verdict of not guilty by reason of insanity.

Question 15

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Question 16

Latimer facts Criminal law – Defences – Defence of necessity – Accused convicted of second degree murder after killing

his severely disabled daughter Trial judge removing defence of necessity from jury after counsel’s closing

addresses Whether jury should have been allowed to consider defence of necessity – Whether timing of

trial judge’s ruling as to availability of defence rendered accused’s trial unfair.

Criminal law Trial Jury Fairness of trial Jury nullification Accused convicted of second degree

murder following death of his severely disabled daughter Whether trial unfair because trial judge misled

jury into believing it would have some input into appropriate sentence, thereby lessening chance of jury

nullification.

The accused was charged with first degree murder following the death of T, his 12 year old daughter who

had a severe form of cerebral palsy. T was quadriplegic and her physical condition rendered her immobile.

She was said to have the mental capacity of a four month old baby, and could communicate only by means

of facial expressions, laughter and crying. T was completely dependent on others for her care. She

suffered five to six seizures daily, and it was thought that she experienced a great deal of pain. She had to

be spoon fed, and her lack of nutrients caused weight loss. There was evidence that T could have been fed

with a feeding tube into her stomach, an option that would have improved her nutrition and health, and

that might also have allowed for more effective pain medication to be administered, but the accused and

his wife rejected this option. After learning that the doctors wished to perform additional surgery, which

he perceived as mutilation, the accused decided to take his daughter’s life. He carried T to his pickup truck,

seated her in the cab, and inserted a hose from the truck’s exhaust pipe into the cab. T died from the

carbon monoxide. The accused at first maintained that T had simply passed away in her sleep, but later

confessed to having taken her life. The accused was found guilty of second degree murder and sentenced

to life imprisonment without parole eligibility for 10 years; the Court of Appeal upheld the accused’s

conviction and sentence, but this Court ordered a new trial.

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Question 17

R. v. Tran

Criminal law — Defences — Provocation — Objective and subjective components to provocation — Whether

estranged wife’s relationship with another man after separating from accused amounted to “insult”

sufficient to deprive accused of power of self-control — Whether there was air of reality to accused acting

on sudden at time of killing — Definition of “insult” — Criminal Code, R.S.C. 1985, c. C-46, s. 232 .

The accused had knowledge that his estranged wife was involved with another man. One

afternoon, the accused entered his estranged wife’s home, unexpected and uninvited, and he discovered his

estranged wife in bed with her boyfriend. The accused viciously attacked them both, killing the boyfriend

by repeatedly stabbing him. Having accepted the defence of provocation, the trial judge acquitted the

accused of murder, but convicted him of manslaughter. The Court of Appeal allowed the Crown’s appeal

and substituted a

Conviction for second degree murder.

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Question 18

RUZIK

The accused was tried before a judge and jury on charges of unlawfully importing two kilograms of heroin

into Canada, contrary to s. 5(1) of the Narcotic Control Act, and of possession and use of a false passport

contrary to s. 368 of the Criminal Code . The accused admitted having committed both offences but claimed

that she was then acting under duress and should thus be relieved from any criminal liability. She testified

that a man in Belgrade, where she lived in an apartment with her mother, had threatened to harm her

mother unless she brought the heroin to Canada. She also said that she did not seek police protection

because she believed the police in Belgrade were corrupt and would do nothing to assist her. The accused

conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17 of the

Code, which provides a defence for 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”. She

successfully challenged the constitutionality of s. 17 under s. 7 of the Canadian Charter of Rights and

Freedoms , raised the common law defence of duress and was acquitted. The Crown appealed the acquittal

on the charge of importing heroin, but the Court of Appeal dismissed the appeal.

– On April 29, 1994 Marijana Ruzic, a Yugoslav citizen, landed at Pearson Airport in Toronto carrying two

kilograms of heroin strapped to her body and a false Austrian passport. When the heroin was found on her,

she was arrested, charged and tried for possession and use of a false passport and unlawful importation of

narcotics. At trial, Ruzic successfully challenged the constitutionality of s. 17 of the Criminal Code, R.S.C.

1985, c. C-46 , raised the common law defence of duress and was acquitted by a jury. The Crown appealed

the acquittal without success to the Ontario Court of Appeal. This appeal now raises, as a core issue, the

constitutional validity, under s. 7 of the Canadian Charter of Rights and Freedom, of s. 17 of the Criminal

Code and more precisely of some of the conditions restricting the admissibility of the defence of duress. For

reasons differing in part from those of the Court of Appeal, I will suggest that s. 17 of the Criminal Code be

declared unconstitutional in part, that the acquittal of the respondent Ruzic be upheld and that the appeal

be dismissed.

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I. Facts The respondent Marijana Ruzic was born in Belgrade in the former Yugoslavia. She was 21 years

old when she entered Canada. When heroin was discovered on her, she was charged with three offences,

two of which proceeded to trial: possession and use of a false passport contrary to s. 368 of the Criminal

Code , and unlawful importation of a narcotic contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1985, c.

N-1.

3 Ms. Ruzic admitted having committed both offences but claimed that she was then acting under

duress and should thus be relieved from any criminal liability. She testified that, two months before her

arrival in Canada, a man named Mirko Mirkovic approached her while she was walking her dog in the streets

of Belgrade, where she lived in an apartment with her mother. She described him as a “warrior” and believed

he was paid to kill people in the war. An expert witness testified at trial that, in 1994, large paramilitary

groups roamed

Belgrade and engaged in criminal and mafia-like activities. The same expert maintained that people living in

Belgrade during that period did not feel safe. They believed the police could not be trusted. There was a

real sense that the rule of law had broken down.

4 From there began a series of encounters between Mirkovic and the respondent while she was

walking her dog. Each time he approached her, he knew more about her, although she had shared no details

of her life with him. He phoned her at home. He told her he knew her every move. Ms. Ruzic alleged that

his behavior became more and more intimidating, escalating to threats and acts of physical violence. On

one occasion, he burned her arm with a lighter. On another, he stuck a syringe into her arm and injected

her with a substance that smelled like heroin and made her nauseous. She indicated that these physical

assaults were coupled with sexual harassment and finally threats against her mother.

5 On April 25, 1994, Mirkovic phoned the respondent and instructed her to pack a bag and meet him

at a hotel in central Belgrade. Once there, he allegedly strapped three packages of heroin to her body and

indicated that she was to take them to a restaurant in Toronto. He gave her the false passport, a bus ticket

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from Belgrade to Budapest and some money. He told her to fly from Budapest to Athens, and then from

Athens to Toronto.

When she protested, he warned her that, if she failed to comply, he would harm her mother.

6 Ms. Ruzic arrived in Budapest on April 26. Late that evening, she boarded a plane to Athens, where

she arrived early the next day. She then purchased a ticket to Toronto. She missed that flight, exchanged

her ticket for the next available flight, and left for Toronto two days later, on April 29. During the two months

prior to her journey to Canada, Ms. Ruzic testified that she did not tell her mother or anyone else about

Mirkovic. She was afraid he would harm whoever she told. She did not seek police protection because she

believed the police in Belgrade were corrupt and would do nothing to assist her. She maintained that she

followed Mirkovic’s instructions out of fear for her mother’s safety. She made no attempt while in Budapest

or Athens to seek the assistance of police or other government officials. Similarly, before her arrest, she did

not ask any Canadian authorities for help. She asserted that she believed the only way she could protect her

mother was to obey Mirkovic’s orders.

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Question 19

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(21) - R. v. Bouchard-Lebrun, 2011(Intoxication)

Criminal law — Defences — Mental disorder — Accused assaulting two individuals while in state of toxic

psychosis resulting from voluntary consumption of drugs — Whether toxic psychosis whose symptoms are

caused by state of self-induced intoxication can be “mental disorder” — Whether s. 33.1 of Criminal Code

limits scope of defence of not criminally responsible on account of mental disorder — Criminal Code, R.S.C.

1985, c. C-46, ss. 16 , 33.1 .

B brutally assaulted two individuals while he was in a psychotic condition caused by drugs he had

taken a few hours earlier. As a result of these incidents, B was charged with aggravated assault. The trial

judge convicted B on the basis that all the elements of s. 33.1 of the Criminal Code (“Cr. C.”), which provides

that selfinduced intoxication cannot be a defence to an offence against the bodily integrity of another

person, had been proven beyond a reasonable doubt. B then tried unsuccessfully on appeal to obtain a

verdict of not criminally responsible on account of mental disorder under s. 16 Cr. C. The Court of Appeal

held that s. 33.1 Cr. C. applied in this case.

Held: The appeal should be dismissed.

A court must consider the specific principles that govern the insanity defence in order to

determine whether s. 16 Cr. C. is applicable. If that defence does not apply, the court can then consider

whether the defence of self-induced intoxication under s. 33.1 Cr. C. is applicable if it is appropriate to do

so on the facts of the case.

Intoxication and insanity are two distinct legal concepts.

An accused who wishes to successfully raise the insanity defence must meet the

requirements of a two-stage statutory test. The first stage involves characterizing the mental

state of the accused. The key issue to be decided at trial at this stage is whether the accused was

suffering from a mental disorder in the legal sense at the time of the alleged events. The second

Question 20

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stage of the defence provided for in s. 16 Cr. C. concerns the effects of the mental disorder. At

this stage, it must be determined whether, owing to his or her mental condition, the accused was

incapable of knowing that the act or omission was wrong. In the instant case, it is not in dispute

that B was incapable of distinguishing right from wrong at the material time. Therefore, the only

issue in this appeal is whether the psychosis resulted from a “mental disorder” within the

meaning

of s. 16 Cr. C.

Toxic psychosis does not always result from a “mental disorder”. In Stone, Bastarache

J. proposed an approach for distinguishing toxic psychoses that result from mental disorders from

those that do not. This approach is structured around two analytical tools, namely the internal

cause factor and the continuing danger factor, and certain policy considerations.

The internal cause factor, the first of the analytical tools, involves comparing the

accused with a normal person. The comparison between the accused and a normal person will

be objective and may be based on the psychiatric evidence. The more the psychiatric evidence

suggests that a normal person, that is, a person suffering from no disease of the mind, is

susceptible to such a state, the more justified the courts will be in finding that the trigger is

external. Such a finding would exclude the condition of the accused from the scope of s. 16 Cr.

C. The reverse also holds true.

In this case, the application of the first factor suggests that the drug-taking is an external

cause. It seems likely that the reaction of a normal person to taking drugs would indeed be to develop

toxic psychosis. This strongly suggests that B was not suffering from a mental disorder at the time he

committed the impugned acts. And the rapid appearance of psychotic symptoms generally indicates

that B’s delusions can be attributed to an external factor. In addition, the psychotic symptoms B

experienced began to diminish shortly after he took the drugs and continued to do so until disappearing

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completely. The Court of Appeal held that the disappearance of the symptoms showed that the

symptoms of toxic psychosis coincided with the duration of B’s intoxication. It could thus say that B

suffered from no disease of the mind before committing the crimes and once the effects of his drug-

taking had passed. There is no valid reason to depart from this conclusion. The second analytical tool,

the continuing danger factor, is directly related to the need to ensure public safety. In this case, there

is no evidence indicating that B’s mental condition is inherently dangerous in any way. Provided that B

abstains from such drugs in the future, which he is capable of doing voluntarily, it would seem that his

mental condition poses no threat to public safety.

In this context, B was not suffering from a “mental disorder” for the purposes of s. 16

Cr. C. at the time he committed the assault. A malfunctioning of the mind that results exclusively

from self-induced intoxication cannot be considered a disease of the mind in the legal sense, since

it is not a product of the individual’s inherent psychological makeup. This is true even though

medical science may tend to consider such conditions to be diseases of the mind.

The foregoing conclusion leads to the question whether s. 33.1 Cr. C. is applicable.

This provision applies where three conditions are met: (1) the accused was intoxicated at the

material time; (2) the intoxication was self-induced; and (3) the accused departed from the

standard of reasonable care generally recognized in Canadian society by interfering or

threatening to interfere with the bodily integrity of another person. Where these three things

are proved, it is not a defence that the accused lacked the general intent or the voluntariness

required to commit the offence.

Section 33.1 Cr. C. therefore applies to any mental condition that is a direct extension of a state

of intoxication. There is no threshold of intoxication beyond which s. 33.1 Cr. C. does not apply

to an accused, which means that toxic psychosis can be one of the states of intoxication covered

by this provision. It is so covered in the case at bar. The Court of Appeal therefore did not err in

law in holding that s.

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33.1 Cr. C.was applicable rather than s. 16 Cr. C.

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Question 21

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21(1) Case

R. v. Jackson

. Collection Supreme Court Judgments

Date 1993-12-16

Criminal law Parties to offences Aiding and abetting Murder or manslaughter Whether party who

aids and abets may be convicted of manslaughter under s. 21(1) of Criminal Code where principal guilty of

murder

Mens rea required for conviction for manslaughter under s. 21(1) of Code Criminal Code, R.S.C., 1985, c. C

46, s. 21(1) .

Criminal law Parties to offences Common intention Murder or manslaughter Whether party to

common unlawful purpose may be convicted of manslaughter under s. 21(2) of Criminal Code where

principal guilty of murder Mens rea required for conviction for manslaughter under s. 21(2) of Code

Criminal Code, R.S.C., 1985, c. C 46, s. 21(2) .

Criminal law Parties to offences Charge to jury Evidence capable of supporting murder or

manslaughter

Whether trial judge should have instructed jury that a party under s. 21(1) or 21(2) of Criminal Code may

be guilty of manslaughter even though principal guilty of murder Criminal Code, R.S.C., 1985, c. C 46, s. 21

.

,J,,and the accused were charged with first degree murder following the killing of J's employer. J believed

that the victim, with whom he had a homosexual relationship, had brought in a new employee to take his

place. On the night of the murder, the accused drove J to the victim's antique shop. According to J, the

accused never left the car and was unaware of what happened in the shop. J admitted to entering the shop,

losing control and striking the victim with a hammer. The accused gave a different story. According to him,

J talked on the way to the shop about killing the victim, although the accused took this to be a joke. J got

out of the car carrying a hammer, balaclava and gloves, and ordered the accused to follow him. J entered

the shop and the accused remained outside near the door where he heard loud voices and noises, suggesting

that someone was getting hit. The accused became frightened and ran down the driveway toward the car.

J ran after him, hit him and forced him to return to the shop. He then told the accused to retrieve the cash

box. The Crown's theory was that J and the accused both entered the shop and both participated fully in

the attacks as well as the robbery. The trial judge charged the jury on both murder and manslaughter. He

set out a number of plausible scenarios but in none of them was it suggested that the accused might be

guilty of manslaughter. Rather, the trial judge expressed the opinion that this was unlikely. The jury found

J guilty of first degree murder and the accused of second degree murder. The Court of Appeal set aside the

accused's conviction and directed a new trial on the ground that the trial judge did not adequately instruct

the jury as to the accused's potential liability for manslaughter under ss. 21(1) and 21(2) of the Criminal

Code .

Question 22

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R V Wills 2016

Heard: May 4th, 2016

Judgment: November 30th, 2016

Criminal law --- Defences — Duress, compulsion or coercion — Excluded offences— Criminal law --- Charter of Rights

and Freedoms — Life, liberty and security of person [s. 7] — Principles of fundamental justice — Moral involuntariness—

Over breadth--- Trial procedure — Charging jury or self-instruction — Direction on onus and reasonable doubt — Specific

defences — Intoxication--- Offences — Murder — First degree murder — Planned and deliberate

Facts:

Willis getting death threats over drug debt. Dealers who were threatening him also wanted young woman killed for

unrelated reasons. To avoid threat, Willis took MDMA and stabbed the woman 30 times in parking lot, killing her. At

trial for first degree murder, Willis sought to put forward defence of duress based on claim that it was situation of 'kill

or be killed'. S.17 of Criminal Code prohibited reliance on defence of duress for principal or coprincipal charged with

murder. Willis brought unsuccessful challenge to this law on basis of s. 7 of Canadian Charter of Rights and Freedoms.

He was convicted.

MBCA: Accused appealed.

Held: Appeal dismissed.

No persuasive authority or reasonably foreseeable hypothetical that raised concern that Parliament's decision to

remove defence of duress from offence of murder would make it inevitable that person facing sufficiently grave threat

would have no realistic choice but to succumb to threat and murder innocence third party. TJ was correct in deciding

that murdering an innocent person can never satisfy proportionality requirement of moral involuntariness, and thus

allow for offence of murder committed by principal or co-principal to be excused. TJ did not err by considering

proportionality in evaluating the constitutionality of the statutory exclusion. Object of law was to prohibit balancing life

against life. Law was not too broad in its effect. Because it was limited to principals and co-principals, it did not capture

conduct that bore no relation to its purpose. It was difficult to see how certain death was a proportionate response to

uncertain threat from another. It was unrealistic to evaluate law of duress on assumption that amoral tyrant, prepared

to compel murder, would piously keep their word once innocent person was murdered. Huge gap between harm

inflicted and benefit accrued. Issue over instructions on common sense inference and intoxication. There was no

objection to jury instructions on effect of evidence of intoxication as to common sense inference jury could draw in

deciding Willis's state of mind from his actions for purposes of deciding whether he had requisite state of mind to be

convicted of murder. Defence was content with proposed jury instructions before trial judge gave them. Evidence jury

heard about Willis’s intoxication at time of offence was not extensive or seemingly compelling. TJ properly explained

that common sense inference was not a conclusion jury 'must reach', or the only method they could use to determine

whether Willis had requisite intent for murder. TJ properly explained that if they had reasonable doubt about Willis's

intent due to consumption of MDMA, they could not rely on common sense inference.

TJ did not make 'unwarranted disparagement' of evidence that had effect of withdrawing defence to first degree murder

from jury. TJ repeated his explanations as to difference in law between meanings of planning and deliberation and

requirement that each must be separately proven for first degree murder.

Question 23

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Question 24

RUZIK:

Criminal law – Defences – Duress – Criminal Code providing for defence of compulsion by threats --

Provision requiring that threat must be of immediate death or bodily harm from a person who is present

when offence is committed -- Whether trial judge right in allowing common law defence of duress to go to

jury – Whether trial judge adequately instructed jury on defence – Criminal Code, R.S.C. 1985, c. C-46, s. 17

.

The accused was tried before a judge and jury on charges of unlawfully importing two kilograms

of

heroin into Canada, contrary to s. 5(1) of the Narcotic Control Act, and of possession and use of a false

passport contrary to s. 368 of the Criminal Code . The accused admitted having committed both offences

but claimed that she was then acting under duress and should thus be relieved from any criminal liability.

She testified that a man in Belgrade, where she lived in an apartment with her mother, had threatened to

harm her mother unless she brought the heroin to Canada. She also said that she did not seek police

protection because she believed the police in Belgrade were corrupt and would do nothing to assist her. The

accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. 17

of the Code, which provides a defence for 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”. She

successfully challenged the constitutionality of s. 17 under s. 7 of the Canadian Charter of Rights and

Freedoms , raised the common law defence of duress and was acquitted. The Crown appealed the acquittal

on the charge of importing heroin, but

the Court of Appeal dismissed the appeal.

Section 17 of the Code breaches s. 7 of the Charter because it allows individuals who acted involuntarily to

be declared criminally liable. The section limits the defense of duress to a person who is compelled to

commit an offence under threats of immediate death or bodily harm from a person who is present when the

offence is committed. The plain meaning of s. 17 is quite restrictive in scope. The phrase “present when

the offence is committed”, coupled with the immediacy criterion, indicates that the person issuing the threat

must be either at the scene of the crime or at whatever other location is necessary to make good on the

threat without delay should the accused resist. Practically speaking, a threat of harm will seldom qualify as

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immediate if the threatened is not physically present at the scene of the crime. The immediacy and presence

requirements, taken together, clearly preclude threats of future harm. While s. 17 may capture threats to

third parties, the immediacy and presence criteria continue to impose considerable obstacles to relying on

the defence in hostage or other third party situations. The under inclusiveness of s. 17 infringes s. 7 of the

Charter . The Crown made no attempt before this Court to justify the immediacy and presence criteria

according to the s. 1 analysis and has therefore failed to satisfy its onus under s. 1 . In any event, the criteria

would likely not meet the proportionality branch of the s. 1 analysis. In particular, these requirements

seemingly do not minimally impair the accused’s s. 7 rights.

The common law defence of duress was never completely superseded by s. 17 of the Code,

and Remains available to parties to an offence. The common law defence has freed itself from the

constraints of immediacy and presence and thus appears more consonant with the values of the Charter.

The common law of duress, as restated by this Court in Hibbert, recognizes that an accused in a situation of

duress not only enjoys rights, but also has obligations towards others and society. As a fellow human being,

the accused remains subject to a basic duty to adjust his or her conduct to the importance and nature of the

threat. The law includes a requirement of proportionality between the threat and the criminal act to be

executed, measured on the objective-subjective standard of the reasonable person similarly situated. The

accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat.

The threat must be to the personal integrity of the person. In addition, it must deprive the accused of any

safe avenue of escape in the eyes of a reasonable person, similarly situated.

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Normand Evrard, et al. v. Her Majesty the Queen, et al.

(Quebec) (Criminal) (By Leave)

Keywords

Criminal law - Offences, Evidence.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law

Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the

Court file and website for information purposes only.

Criminal law - Offences - Evidence - Directed verdict - Whether the Quebec Court of Appeal erred in setting

aside the Applicant's acquittal for attempted robbery without requiring the Crown to satisfy the Appellate

Court that the verdict would not necessarily have been the same had the trial judge not directed that the

accused be acquitted of attempted robbery and be allowed to enter a plea of guilty to attempted theft, as

required by section 686 (4) (b) (I) and as interpreted by the Honorable Court in the case of R. v. Vezeau

(1976), 28 C.C.C. (2d) 81.

The Applicants were accused of attempted theft and of conspiracy to commit robbery Normand Evrard

was also accused of possessing a loaded restricted firearm without authorization or the proper license. At

trial, the Applicants testified and admitted the identity of the three co-accused and the fact that they

planned to take the money in a Secur truck. They also admitted to conspiring to the theft. The Crown

alleged that Norman Evrard was armed with an offensive weapon at the time of the theft. The Applicants

argued that the conspiracy in which the accused participated at no time included the use of weapons.

Joseph Evrard testified that Normand's function was to give the others enough warning to get away fast.

He also stated that the Secure guards had a shotgun and they did not want any physical interaction with

them for that reason. The other coaccused testified that they had no knowledge that Normand Evrard had

a gun in his possession on the day of the crime. Norman Evrard pleaded guilty to a count of possession of

a loaded restricted firearm. The other coaccused were acquitted by the jury of the possession charge. All

three pled guilty to an included offense of attempted theft after the trial judge granted a motion for a

directed verdict on the attempted robbery charge. The Quebec Court of Appeal ordered a new trial on the

attempted robbery charge holding that there was enough evidence to have let the case go to the jury. It

ordered a new trial on a charge of conspiracy to commit theft which had not been left to the jury as an

included offence in the count of conspiracy to commit robbery.

Question 25

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Question 26

R. v. Antic 2017

A was arrested and charged with several drug and firearms offences. He was denied release at his bail

hearing, and sought review of the detention order. The bail review judge declined to vacate the order,

indicating that he would have released A if he could have imposed both a surety and a cash deposit as release

conditions. However, s. 515(2)(e) of the Criminal Code permits a justice of the peace or judge to require

both a cash deposit and surety supervision only if the accused is from out of the province or does not

ordinarily reside within 200 km of the place in which he or she is in custody. As an Ontario resident living

within 200 km of the place in which he was detained, A did not meet these criteria. A brought a subsequent

bail review application, challenging the constitutionality of s. 515(2) (e). The bail review judge found that

since the geographical limitation in s. 515(2) (e) prevented him from granting bail on the terms that he

deemed appropriate, the provision violated the right not to be denied reasonable bail without just cause

under s. 11 (e) of the Charter . He severed and struck down the geographical limitation in s. 515(2) (e) and

ordered A’s release with a surety and a cash deposit of $100,000.

Held: The appeal should be allowed and the declaration of constitutionality reversed.

The right not to be denied reasonable bail without just cause is an essential element of an

enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial

stage of the criminal trial process and safeguards the liberty of accused persons. This right has two aspects:

a person charged with an offence has the right not to be denied bail without just cause and the right to

reasonable bail. Under the first aspect, a provision may not deny bail without “just cause” — there is just

cause to deny bail only if the denial occurs in a narrow set of circumstances, and the denial is necessary to

promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to that

system. The second aspect, the right to reasonable bail, relates to the terms of bail, including the quantum

of any monetary component and other restrictions that are imposed on the accused for the release period.

It protects accused persons from conditions and forms of release that are unreasonable.

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Question 27

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Question 28

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National Committee on Accreditation

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