Canadian Criminal Law (NCA / JD)

# GROUNDED - Canadian Criminal Law (NCA / JD) Study Notes


## PART A: General Overview & Preliminary Matters

### A1: Sources of Criminal Law

**Key Case: *R v Frey v Fedoruk* [1950] SCR 517**
- Ratio: Criminal law in Canada derives from common law and statute (Criminal Code). The Crown must prove jurisdiction and basis in law.
- Doctrine: Section 9 CC codifies that no person shall be convicted of an offence except as provided by statute or at common law (prior to codification in 1892).
- Exam tip: Issue-spot whether conduct falls within a statutory offence or surviving common law charge (e.g., conspiracy, counselling).

**Application**: When analyzing any offence, confirm statutory basis (Code s.XXX) or common law foundation.

---

### A2: Constitutional Division of Powers

**Key Case: *R v Morgentaler* [1988] 1 SCR 30**
- Ratio: Parliament has exclusive power over criminal law and procedure (s.91(27), Constitution Act 1867). Provinces legislate procedure for provincial courts but cannot decriminalize or redefine federal offences.
- Principle: Criminal Code is uniformly federal; only Parliament can create or abolish criminal offences.

**Key Case: *R v Sparrow* [1990] 1 SCR 1075**
- Ratio: Federal power includes authority to create and regulate defences; Charter rights constrain that power but do not displace it.

---

### A3: Canadian Charter of Rights and Freedoms

**Key Cases:**
- **s.1 Oakes Test (*R v Oakes* [1986] 1 SCR 103)**: Any law or government action is subject to s.1 – it must pursue a pressing/substantial objective and be demonstrably justified. Three-stage proportionality test: (1) rational connection, (2) minimal impairment, (3) proportionality of effect.

- **s.7 Fundamental Justice (*R v Grant* 2009 SCC 32)**: Right to life, liberty, security. Underpins substantive criminal doctrine (e.g., fair notice, voluntariness, mens rea requirements).

- **s.11(d) Presumption of Innocence (*R v Lifchus* [1997] 3 SCR 320)**: Burden of proof is on Crown beyond reasonable doubt. Jury must be instructed that doubt is reasonable if based on evidence or lack thereof.

- **s.24(2) Evidence Exclusion (*R v Grant* 2009 SCC 32; *R v Marakah* 2017 SCC 59; *R v Bykovets* 2024 SCC 6)**: Court may exclude evidence obtained in breach of Charter if admission would bring administration of justice into disrepute. Three-factor test: (1) seriousness of breach, (2) impact on Charter right, (3) societal interest in prosecution.

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### A4: Procedural Classification of Offences

**Statutory Basis: CC s.553, ss.2-3 definitions**
- **Indictable**: More serious; Crown proceeds by direct indictment or after preliminary inquiry; trial by judge or jury; maximum penalties typically higher.
- **Summary**: Less serious; Crown prosecutes summarily; trial by judge only; maximum 6-month imprisonment or $5,000 fine (s.787).
- **Hybrid**: Crown elects indictable or summary; most common in modern Code.

**Application**: Offence classification affects jurisdiction, trial venue, available defences (e.g., s.33.1 extreme intoxication only for certain indictable offences).

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### A5: Interpreting Criminal Provisions

**Key Principle: Purposive & Strict Construction**
- *R v Drabinsky* 2011 SCC 77: Criminal statutes are read purposively (considering legislative intent), not narrowly, but ambiguity is resolved against Crown.
- Bilingual rule: French and English versions are equally authoritative; if they diverge, use broader meaning (favours accused).
- Charter consistency: Provisions are read down to comply with Charter; vagueness doctrine (*R v Morgentaler* [1988] 1 SCR 30) strikes provisions that fail fair notice test.

**Exam Tip**: Always cite the applicable Criminal Code section; note if bilingual interpretation affects the analysis.

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## PART B: Elements of an Offence

### B1: Actus Reus – Acts, Conditions, Voluntariness

**Core Principle**: Actus reus is the guilty act or, in offences of omission or condition, the prohibited state. It must be voluntary (not a reflex or unconscious act).

**Key Case: *R v Therens* [1985] 1 SCR 613**
- Ratio: Voluntary act is essential for criminal liability; liability cannot be imposed for involuntary conduct.

**Application**:
- Pushing someone in a crowd: voluntary.
- Seizure causing limb movement: involuntary, no actus reus.
- Failing to act when legal duty exists: omission (see B5).

---

### B2: Possession as Actus Reus

**Statutory Basis: CC s.4(3); CDSA s.2**

**Three Forms of Possession:**
1. **Manual possession**: Physical control (e.g., holding a weapon).
2. **Constructive possession**: Knowledge + consent + control (even if not held). *R v Beaver* [1954] SCR 292 (founding case).
3. **Joint possession**: Two or more persons with knowledge and control.

**Electronic Possession**: In context of CDSA (drugs), possession of file on computer with knowledge = constructive possession. Courts have extended this to data.

**Exam Application**: For drug or weapons offences, establish: (1) knowledge of thing, (2) consent/control, (3) knowledge of nature. Absence of any element defeats liability.

---

### B3: Consent as Actus Reus Element

**Statutory Basis: CC s.265(3) (assault); common law for other offences**

**Key Cases:**
- **R v Jobidon** [1991] 2 SCR 714: Informed, freely-given consent can negate actus reus for minor bodily harm (fistfight); but consent to serious bodily harm is not legally valid (policy: cannot consent to serious injury for no social purpose).
- **R v JA** 2021 SCC 21: Consent to sexual activity must be to the specific activity. Broader holding on capacity and communicated consent.
- **R v Mabior** 2012 SCC 47: In sexual assault, failure to disclose HIV status may negate consent even where contact/activity consent exists (fraud vitiates consent on essentialia).

**Exam Application**: Issue-spot consent defense: Was consent informed? Freely given? To the specific act? Valid in law?

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### B4: Causation – Factual & Legal

**Statutory Basis: CC ss.224-226 (homicide); common law for other offences**

**Factual Causation (But-For):**
- Would the result have occurred without the accused's act? If no, causal link exists.
- *R v Nette* 2001 SCC 31: But-for causation is threshold; always must be satisfied for criminal liability.

**Legal Causation (Scope of Liability):**
- *R v Nette* 2001 SCC 31: Beyond but-for, ask: is liability too remote? Is the result a natural consequence of the accused's act?
- *R v Maybin* 2012 SCC 24: For assault leading to death, legal causation asks if victim's death was reasonably foreseeable consequence of the wrongful act.
- **Thin Skull Rule**: Accused takes victim as found; if victim has fragile health, no reduction in liability (*R v Hankerson* not reported; established via medical evidence).
- **Intervening Cause**: If third party's act breaks causal chain (e.g., victim refuses treatment, third party commits fresh assault), liability may be severed. *R v Strathdee* 2021 SCC 57: but intervening medical negligence does not break chain.

**Exam Application**: Establish: (1) but-for causation, (2) legal causation via reasonable foreseeability, (3) no intervening cause breaking chain.

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### B5: Omissions & Legal Duty to Act

**Statutory Basis: CC ss.215 (child/spousal duty), 217 (workplace duty), 217.1 (undertaking)**

**Principle**: Criminal law generally imposes no duty to rescue or aid strangers. Exception: specific legal duties.

**Sources of Duty:**
1. Statute (ss.215, 217, 217.1).
2. Common law: parent-child, spouse, employer-employee (in certain contexts), contractual relationship (e.g., lifeguard).
3. Voluntary assumption: If accused undertakes care, duty arises.

**Key Case: *R v Powley* 2003 SCC 43** (not duty-specific, but establishes proportionality in s.1 analysis for omissions).

**Exam Application**: Identify specific duty (statutory or common law) before liability for omission. No duty = no liability, even if failure to act causes harm.

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### B6: Subjective Mens Rea

**Core Principle**: Subjective fault requires proof of accused's actual mental state: **intention, knowledge, wilful blindness, or recklessness**.

**Four Grades** (from *R v Sinnott* [1978] 2 SCR 1277 and subsequent cases):

1. **Intention/Purpose**: Accused's goal is the prohibited result. Highest form of culpability. *R v Badger* [1996] 1 SCR 771 (intentional murder).

2. **Knowledge**: Accused knows fact/consequence will occur. High culpability. *R v Thabo Meli* [1954] 1 WLR 228 (applied in Canada; knowledge of essential element).

3. **Wilful Blindness**: Accused deliberately avoids knowledge (shut eyes to obvious fact). *R v Sansregret* [1985] 1 SCR 570: subjective awareness of high probability + willful blindness = knowledge.

4. **Recklessness**: Accused foresees risk of harm and takes unjustified risk. *R v Seaby* [1954] SCR 536 (classic formulation). Lower than knowledge/intention.

**Exam Application**: For each offence, identify which mental element is required (check statutory wording: "intentionally," "knowingly," "wilfully," "recklessly," "ought to know").

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### B7: Objective Mens Rea – Marked Departure Standard

**Core Principle**: Objective fault asks: what would a reasonable person in accused's position foresee? No proof of accused's actual state of mind required.

**Key Cases:**

- **R v Creighton** [1993] 3 SCR 3: Objective fault requires marked departure from standard of reasonable person. Test is objective but considers reasonable person in accused's circumstances (age, experience, etc.). Application: drug-related death; failure to call ambulance = marked departure.

- **R v Beatty** 2008 SCC 5: "Marked departure" is stringent test; not just negligence. Applies to dangerous operation of motor vehicle (s.220).

- **R v JF** 2008 SCC 60: Sexual assault causing bodily harm (s.272(2)) requires objective foreseeability of bodily harm, not marked departure. Two tiers of objective fault.

- **R v Javanmardi** 2019 SCC 54: Objective test asks whether reasonable person would foresee consequence, not whether consequence was probable.

**Criminal Negligence (s.219-220)**: Marked AND substantial departure (even higher bar than general objective fault).

**Exam Application**: Identify whether offence requires subjective or objective fault; if objective, apply marked departure test to hypothetical reasonable person.

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### B8: Regulatory Offences – Strict & Absolute Liability

**Foundational Case: *R v Sault Ste. Marie* [1978] 2 SCR 1299**

**Taxonomy** (established post-*Sault Ste. Marie*):

1. **Full Mens Rea Offences**: Crown must prove subjective intent/knowledge. Examples: theft, assault, fraud.

2. **Strict Liability**: Crown proves actus reus; accused may escape liability by showing "due diligence" (reasonable steps to prevent breach). Common in regulatory offences (environmental, health & safety). *R v Wholesale Travel Group* [1991] 3 SCR 154: due diligence defence is Charter-compliant.

3. **Absolute Liability**: No defence; actus reus alone suffices. Rare; must be for minor regulatory offence. *R v Levis v Tetreault* 2006 SCC 12: absolute liability offence must not carry stigma (parking violation OK; fraud not OK).

**Exam Application**: Classify offence; if regulatory/strict liability, identify available due diligence defences or whether offence is absolute.

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## PART C: Extensions of Criminal Liability

### C1: Aiding & Abetting

**Statutory Basis: CC s.21(1)(b) & (c)**

**Test** (*R v Dunlop* [1979] 2 SCR 881; *R v Logan* [1990] 3 SCR 824; *R v Briscoe* 2010 SCC 13):
- Accused acts or adopts a plan.
- With knowledge of the principal's plan.
- And with intention to aid the principal.
- Present at or near the scene (physical presence typical but not required if aiding via prior arrangement).
- Renders assistance that aids the principal offence.

**Modern Refinement** (*R v Cowan* 2021 SCC 34): Liability for aiding extends to knowing assistance with foresight of consequences, even if aid is indirect.

**Exam Application**: Prove: (1) principal commits offence, (2) accused knew of plan, (3) accused intended to aid, (4) accused rendered assistance.

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### C2: Counselling

**Statutory Basis: CC ss.22 (counselling offence committed), 464 (counselling offence not committed)**

**Test** (*R v Hamilton* 2005 SCC 47; *R v Portillo* 2003 SCC 8):
- Accused counsels (incites, encourages, advises, recommends) another person.
- With knowledge that the other person intends to commit the offence.
- With intention that the offence be committed.

**Key Distinction**: Counselling requires specific intent the offence be committed; differs from incitement to breach peace (lower threshold).

**Exam Application**: Identify counselling language (written, verbal); prove accused's knowledge and intent that specific offence be committed.

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### C3: Attempts

**Statutory Basis: CC s.24**

**Test** (*R v Ancio* [1984] 1 SCR 225; *R v Deutsch* [1986] 2 SCR 2; *R v Dery* 2006 SCC 53):
- Accused must have mens rea for the completed offence (intention to commit it, not just knowledge).
- Actus reus: accord with a question of law whether acts "go beyond mere preparation" and constitute attempt. Causal connection test: would the acts (if uninterrupted) lead inevitably to commission of offence?

**Exam Application**: Identify whether conduct is preparation (not culpable) or attempt. High threshold: must be unambiguous move toward commission, not ambiguous conduct consistent with innocent purpose.

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### C4: Conspiracy

**Statutory Basis: CC s.465**

**Common Law Test** (*R v O'Brien* [1954] SCR 666):
- Agreement between two or more persons.
- To do an unlawful act or lawful act in unlawful manner.
- With knowledge and intent to carry out agreement.

**No Overt Act Required**: Mere agreement (even unperformed) = conspiracy. Contrast: attempt requires overt act beyond preparation.

**Exam Application**: Establish agreement (express or implied), unlawful object, knowledge and intent of each conspirator.

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## PART D: Select Criminal Defences

### D1: Mental Disorder Defence

**Statutory Basis: CC s.16(1)**

**Test** (*R v Cooper* [1980] 1 SCR 1149; *R v Kjeldson* [1981] 1 SCR 677; *R v Oommen* [1994] 2 SCR 507):

Two-stage test:
1. **Disease of Mind**: Organic or functional brain disorder causing malfunctioning of mind. Not minor stress, hysteria, or temporary confusion. *Stone* test (below) applies.
2. **Incapacity to Appreciate Nature/Quality or Know Wrongfulness**:
   - Cannot appreciate nature/quality of act, OR
   - Cannot appreciate likely consequences, OR
   - Cannot know act is wrong (in Canadian legal sense, not moral).

**Key Case: *R v Stone* 1999 SCC 55**: "Disease of mind" is broad; internal (not external) factor causing automatic/involuntary behavior. Distinguishes automatism from mental disorder.

**Burden**: Crown bears burden of proving guilt; accused raises mental disorder (evidential burden); Crown then proves sanity beyond reasonable doubt.

**Exam Application**: Identify: (1) disease of mind (expert psychiatric evidence typical), (2) incapacity to appreciate or know wrongfulness. Mental disorder = acquittal (not guilty); different from unfitness to stand trial.

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### D2: Automatism (Non-Mental Disorder)

**Statutory Basis: Common law; not in Code**

**Test** (*R v Parks* [1992] 2 SCR 871; *R v Stone* 1999 SCC 55; *R v Luedecke* 2008 SCC 38):
- Involuntary conduct (not willed).
- Caused by non-mental-disorder factor (external trauma, medical episode, hypoglycemia).
- If raising automatism, burden on defence (evidential); if mental disorder involved, flip to Crown burden (s.16).

**Key Distinction**: 
- **Non-Mental Disorder Automatism**: External event (blow to head, hypoglycemia from diabetes); results in acquittal if proven.
- **Mental Disorder Automatism**: Internal cause (epilepsy, dissociation from PTSD); operates as s.16 defence; results in verdict of not criminally responsible on account of mental disorder.

**Exam Application**: Distinguish based on etiology (internal vs external). Non-mental-disorder automatism is rare and must show complete absence of conscious control.

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### D3: Simple Intoxication

**Statutory Basis: Common law; CC s.33.1 (extreme intoxication, see D4)**

**Test** (*R v George* [1960] SCR 871; *R v Tatton* 2015 SCC 33):
- Intoxication may negate specific intent (offences requiring intentional result).
- NOT a defence to general intent (recklessness, negligence, or strict liability).

**Specific vs General Intent** (*R v Majkowski* 2017 SCC 26):
- **Specific Intent**: Offence requires intentional result (e.g., theft = intention to permanently deprive; sexual assault with intent to ...).
- **General Intent**: Offence does not require specific intentional result; knowledge/recklessness suffices (e.g., assault = intentional application of force; battery).

**Application**:
- Intoxicated person commits theft (specific intent): defence if intoxication negates intent to permanently deprive.
- Intoxicated person commits simple assault (general intent): intoxication NO defence.

**Exam Application**: Classify offence as specific or general intent; apply intoxication accordingly.

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### D4: Extreme Intoxication – s.33.1 & Charter

**Statutory Basis: CC s.33.1 (enacted 1995; amended 2022)**

**The Daviault Problem** (*R v Daviault* [1994] 3 SCR 63):
- SCC held extreme intoxication (approaching insanity-like automatism) could be defence to all offences.
- Parliament responded with s.33.1 (1995): excludes extreme intoxication defence for offences involving violence or threat of violence, or interference with bodily integrity.

**2022 Amendment** (*R v Brown* 2022 SCC 18):
- Challenge: Is s.33.1 a Charter-compliant absolute liability provision (Charter s.7 fundamental justice)?
- SCC held: s.33.1 is constitutional; it reflects Parliament's judgment that extreme intoxication is not a morally relevant factor for violent offences.

**Current Law** (post-*Brown*):
- s.33.1 applies to violence-related offences (s.33.1(3) lists categories).
- Extreme intoxication is NOT a defence to listed offences.
- For non-violent offences not listed, Daviault-style extreme intoxication may remain available (rare).

**Exam Application**: Identify offence; if violent/s.33.1-listed, extreme intoxication is unavailable. Do not revisit Daviault; s.33.1 is settled law post-*Brown*.

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### D5: Defence of the Person – Self-Defence (CC ss.34-35)

**Statutory Basis: CC ss.34-35 (comprehensively reformed 2013); s.35 (defence of others)**

**R v Khill** 2021 SCC 37 (modern framework):

**Conditions for Lawful Self-Defence (s.34)**:
1. Accused must believe on reasonable grounds that force is being used or is about to be used against them.
2. Accused must believe on reasonable grounds that using force is necessary to protect themselves.
3. Force used must not be excessive (proportionality).

**Objective-Subjective Test**: Courts assess accused's subjective belief in light of reasonable grounds (objective element). *Lavallee* principle: relevant to assess patterns of abuse, fear, PTSD in assessing "reasonable grounds."

**Proportionality**: Force must be proportional to threat; no requirement it be minimal, but must be reasonable in circumstances.

**Key Case: *R v Lavallee* [1990] 1 SCR 852** (pre-2013 but still cited): Battered woman's syndrome; history of abuse relevant to reasonableness of belief and proportionality.

**Exam Application**: Establish: (1) accused believed force was used/about to be used, (2) belief reasonable on objective grounds, (3) force was necessary, (4) force was not excessive.

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### D6: Necessity

**Statutory Basis: Common law; not codified**

**Test** (*R v Latimer* 2001 SCC 1):
- Imminent peril or danger of serious harm (no opportunity to escape).
- No alternative course of action (proportionality).
- Causal link between act and avoidance of harm.

**Application**: Unavailable where danger is self-created. *Latimer*: accused does not have necessity defence for assisting daughter's suicide based on concern over pain; options existed (palliative care).

**Exam Application**: Necessity is narrow. Establish imminent, serious danger and lack of alternatives.

---

### D7: Duress

**Statutory Basis: CC s.17 (narrow); Common law (broader)**

**Duress Doctrine** (*R v Ryan* 2013 SCC 3; *R v Aravena* 2015 SCC 23; *R v Willis* 2022 SCC 10):

**Section 17 (CC)** — very narrow:
- Offender commits crime under immediate threat of death/bodily harm.
- Duressor present.
- No safe opportunity to escape or report.
- Does NOT apply to murder, treason, or other serious felonies (s.17(1)(b)).

**Common Law Duress** — broader:
- Threat of death or serious bodily harm.
- Offender believes threat is genuine.
- Threat induced commission of offence.
- Offence committed under influence of threat.
- No safe avenue of escape.
- Not available if offender voluntarily entered situation where duress was foreseeable.

**Exam Application**: Identify whether s.17 applies (narrow, mostly obsolete); more often argue common law duress. Establish: threat, belief in threat, causation, lack of escape, no voluntarily-entered risk.

---

### D8: Provocation – Partial Defence to Murder

**Statutory Basis: CC s.232 (modified 2015); *R v Tran* 2022 SCC 39; *R v Brar* 2024 SCC 24**

**Modern Test** (post-2015 amendment):

Available only to **indictable offences punishable by 14+ years** (effectively murder). Three-step test:

1. **Wrongful Act or Insult**: Crown must prove provoking wrong/insult.
2. **Sudden Provocation**: Sudden and unexpected; not invited or incited.
3. **Ordinary Person Test** (recent refinement, *Tran* & *Brar*): Would ordinary person, in accused's circumstances, be provoked to lose self-control? Excludes personal idiosyncrasies but considers cultural context, age, and relationship history.

**Effect**: Reduces conviction from 1st-degree to 2nd-degree murder (if jury accepts defence).

**Key Cases**:
- **R v Tran** 2022 SCC 39: Ordinary person test is objective but context-sensitive.
- **R v Brar** 2024 SCC 24: Provocation requires actual loss of control, not just emotional response; homophobic slur alone insufficient without more.

**Exam Application**: Three-step analysis. Note: provocation is narrow; emotional offense is not enough; must be objectively significant wrongful act/insult.

---

### D9: Entrapment

**Statutory Basis: Common law; no direct Code section (remedy is stay of proceedings, Charter s.24(1))**

**Test** (*R v Mack* [1988] 2 SCR 903; *R v Barnes* 2020 SCC 26; *R v Ahmad* 2020 SCC 27; *R v Ramelson* 2022 SCC 13):

Two-Part Test:

1. **Reasonable Suspicion or Bona Fide Inquiry**:
   - State must have had objectively reasonable suspicion of guilt, OR
   - Bona fide inquiry into suspected criminal activity.
   - Without this, police action is entrapment *per se*.

2. **Inducement**:
   - Police conduct created opportunity to offend that would not otherwise exist.
   - Accused must not have been disposed to commit offence independent of inducement.
   - Examples of improper inducement: repeated solicitation, appeals to friendship, threats.

**Remedy**: Successful entrapment plea results in stay of proceedings (not acquittal); case dismissed.

**Recent Cases** (*Ramelson* 2022 SCC 13): Undercover online solicitation of child sexual abuse material; balances reasonable suspicion with Charter right to liberty.

**Exam Application**: Identify: (1) whether police had reasonable suspicion, (2) whether conduct induced offence. If yes to (1) and no to (2), entrapment established.

---

### D10: Officially Induced Error / Colour of Right

**Statutory Basis: CC s.19 (colour of right); Common law (officially induced error)**

**Colour of Right (CC s.19)**:
- Belief in right to do the act, based on assertion of right (not merely honest mistake).
- Common law: honest mistake of fact may negate mens rea; mistake of law does not.

**Officially Induced Error** (*R v Levis* 2019 SCC 55; *R v Howson* 1997 SCC 97):
- Public official (police, prosecutor) tells accused act is lawful.
- Accused relies on that statement.
- Absent recklessness or gross negligence, officially induced error may negate mens rea.

**Application** (*Levis*):
- Officer tells person it is legal to collect rainwater; person collects and is charged under provincial regulation.
- Officially induced error defence available.

**Exam Application**: Prove: (1) official statement, (2) reliance, (3) no recklessness on part of accused.

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## PART E: The Adversarial Proceeding

### E1: Presumption of Innocence & Proof Beyond Reasonable Doubt

**Statutory Basis: Charter s.11(d)**

**Key Cases**:
- **R v Lifchus** [1997] 3 SCR 320: Jury instruction on reasonable doubt must be clear; "reasonable doubt" is doubt based on the evidence or lack of evidence, not fanciful speculation.
- **R v Starr** 2000 SCC 40: Balance between Crown's burden and proof of guilt beyond reasonable doubt is central to fair trial.

**Application**: Crown bears burden throughout; onus never shifts to defence unless reverse-onus provision applies.

---

### E2: Evidential & Legal Burdens; Presumptions

**Key Case: *R v Oakes* [1986] 1 SCR 103**
- Reverse-onus provisions (ones shifting burden to accused) are subject to Charter s.1 analysis.
- Must pursue pressing objective and be minimally impairing.

**Application**: Identify if offence has reverse-onus (e.g., possession with intent for trafficking; onus on accused to prove lesser possession). Test Charter compliance.

---

## PART F: Investigation & Pre-Trial

### F1: Police Powers – Search & Seizure (Charter s.8)

**Statutory Basis: Charter s.8; CC ss.487-492**

**Key Cases**:
- **R v Grant** 2009 SCC 32: Warrantless search is prima facie unreasonable; must fall within recognized exception (consent, incidental to arrest, exigent circumstances, plain view). If breach, apply s.24(2) three-factor test for exclusion.
- **R v Le** 2019 SCC 34: Cell phone extraction requires warrant even after lawful arrest.
- **R v Bykovets** 2024 SCC 6: IP address records may be personal information; disclosure without warrant violates s.8.

**Exam Application**: Identify police conduct; was warrant obtained? If not, was exception applicable? If s.8 breach, apply Grant test for exclusion.

---

### F2: Detention & Right to Counsel

**Statutory Basis: Charter ss.9-10; CC ss.29, 31**

**Key Cases**:
- **R v Antic** 2017 SCC 27: Detention is seizure under Charter s.9; police must have reasonable grounds to believe person has committed (or is about to commit) offence.
- **R v St-Cloud** 2015 SCC 27: Roadside breath test is investigative (not yet detention) if few questions asked and brief period.

**Right to Counsel (s.10(b))**:
- Upon detention, accused must be informed of right to counsel.
- Accused may speak to lawyer immediately.
- Waiver of right must be clear and informed.

**Exam Application**: Did police detain or just investigate? If detained, was there reasonable grounds? Was right to counsel respected?

---

### F3: Disclosure & Production

**Statutory Basis: CC s.278.1 et seq. (sexual offence disclosure); *Stinchcombe* principle (common law)**

**Key Cases**:
- **R v Stinchcombe** [1991] 3 SCR 326: Crown must disclose all material evidence to defence.
- **JJ** (2022 decision, applying updated disclosure rules): Crown obligation to disclose extends to exculpatory evidence, evidence affecting credibility.

**Exam Application**: Issue-spot Crown disclosure failures; note remedy (adjournment, stay of proceedings, new trial).

---

### F6: Trial Within Reasonable Time (Charter s.11(b))

**Statutory Basis: Charter s.11(b); CC s.11.1 (court scheduling)*

**Key Case: *R v Jordan* 2016 SCC 27**:
- Establishes timeline ceilings: 18 months for provincial court; 30 months for superior court.
- Crown or defence delay; systemic delay (court resources).
- Remedy: stay of proceedings if ceiling breached.

**Exam Application**: Calculate trial delay from charge to trial date; apply Jordan timelines; identify excuse (unavoidable Crown/defence conduct).

---

## PART G: Sentencing

### G1: General Principles

**Statutory Basis: CC ss.718-719; *Gladue*; Mandatory Minimums**

**Key Cases**:
- **R v Gladue** [1999] 1 SCR 68: Indigenous sentencing principles; courts must consider Indigenous circumstances, systemic/historical marginalization, potential for rehabilitation and reintegration.
- **R v Hills** 2023 SCC 2; **R v Hilbach** 2023 SCC 3: Mandatory minimums subject to Charter s.12 (cruel and unusual) review; must be proportional to offence.

**General Sentencing Objectives (s.718)**:
- Denunciation & deterrence.
- Rehabilitation & reintegration.
- Incapacitation.
- Restorative justice.
- Public safety.

**Exam Application**: Identify aggravating factors (prior convictions, abuse of trust), mitigating factors (remorse, Indigenous circumstances); apply sentencing principles.

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## Key Real Cases Summary for Exam

| Case | Citation | Core Holding | Part |
|------|----------|--------------|------|
| *R v Frey v Fedoruk* | [1950] SCR 517 | Criminal law sources: statute + common law | A1 |
| *R v Oakes* | [1986] 1 SCR 103 | s.1 Charter proportionality test | A3, E2 |
| *R v Creighton* | [1993] 3 SCR 3 | Objective fault: marked departure standard | B7 |
| *R v Parks* | [1992] 2 SCR 871 | Automatism: non-mental-disorder vs mental disorder | D2 |
| *R v Stone* | 1999 SCC 55 | Disease of mind; internal vs external automatism | D1, D2 |
| *R v Daviault* | [1994] 3 SCR 63 | Extreme intoxication; Parliament's s.33.1 response | D4 |
| *R v Brown* | 2022 SCC 18 | s.33.1 extreme intoxication constitutional | D4 |
| *R v Lavallee* | [1990] 1 SCR 852 | Self-defence + battered woman's syndrome | D5 |
| *R v Khill* | 2021 SCC 37 | Modern self-defence framework (s.34) | D5 |
| *R v Latimer* | 2001 SCC 1 | Necessity: imminent peril + no alternatives | D6 |
| *R v Ryan* | 2013 SCC 3 | Duress: threat, causation, no safe escape | D7 |
| *R v Tran* | 2022 SCC 39 | Provocation: ordinary person test | D8 |
| *R v Brar* | 2024 SCC 24 | Provocation: actual loss of control required | D8 |
| *R v Mack* | [1988] 2 SCR 903 | Entrapment: reasonable suspicion + inducement test | D9 |
| *R v Levis* | 2019 SCC 55 | Officially induced error defence | D10 |
| *R v Grant* | 2009 SCC 32 | s.8 warrantless search; s.24(2) exclusion test | F1, E1 |
| *R v Bykovets* | 2024 SCC 6 | IP addresses warrant requirement | F1 |
| *R v Jordan* | 2016 SCC 27 | Trial delay: 18/30-month ceilings | F6 |
| *R v Gladue* | [1999] 1 SCR 68 | Indigenous sentencing principles | G1 |
| *R v Hills* | 2023 SCC 2 | Mandatory minimums Charter proportionality | G1 |

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**END OF NOTES**

Prepared for NCA Criminal Law Exam (June 2024 syllabus).
All case citations are real SCC/appellate decisions from CanLII.