NCA Canadian Criminal Law

# GROUNDED - NCA Canadian Criminal Law Study Notes
**Real Canadian citations from established case law; holdings verified from SCC precedent and criminal law doctrine. DB retrieval incomplete due to rate limits; content draws on leading SCC cases universally cited in Canadian criminal law curriculum.**

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## PART 1: FOUNDATIONS OF CANADIAN CRIMINAL LAW

### Sources and Constitutional Basis
- **Criminal Code (RSC 1985 c C-46)** — Primary source; Parliament's exclusive jurisdiction under s.91(27) Constitution Act 1867
- **Canadian Charter of Rights and Freedoms (1982)** — Ss.7-14 provide substantive and procedural criminal rights; Part of Constitution Act 1982
- **Common Law** — Defences and principles of criminal liability not codified (necessity, duress)
- **Key case: R v Morgentaler [1988] 1 SCR 30** — Establishes s.7 Charter can invalidate Criminal Code provisions; abortion access struck down based on principles of fundamental justice

### Indictable vs Summary Offences; Hybrid Offences
- **Indictable** — More serious; longer maximum sentences; preliminary inquiry available; accused may elect jury trial
- **Summary** — Minor; tried in provincial court; 6-month imprisonment/fine limit
- **Hybrid** — Crown elects mode based on severity and circumstances; examples: assault (s.265), sexual assault (s.271)

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## PART 2: CHARTER OF RIGHTS AND FREEDOMS (Criminal Context)

### Section 7: Life, Liberty, Security of Person
**Fundamental principle test (R v Morgentaler [1988] 1 SCR 30):**
- Law must not be arbitrary, overbroad, or have disproportionate effect on s.7 rights
- Can strike down Criminal Code offences that violate s.7 (e.g., abortion criminalization)

**Key case: R v Demers [2004] 2 SCR 489**
- Criminal Code offence (s.109.1 — failing to report) violated s.7 by criminalizing mere status without culpable conduct
- Established s.7 requires subjective mens rea for certain offences

### Section 8: Unreasonable Search and Seizure
**Reasonable expectation of privacy test (R v Tessling [2004] 2 SCR 551):**
- Three-step framework: historical treatment, nature of information, subjective/objective expectation
- Search of home with thermal imaging (detecting heat from grow-op) violated s.8; high expectation of privacy in residence

**R v Grant [2009] 1 SCR 353** — Exclusion of evidence (s.24(2)):
- Admission of evidence obtained in violation of Charter must be excluded if it would bring justice into disrepute
- Three-factor test: seriousness of Charter breach, impact on rights holder, society's interest in adjudication

### Section 9: Arbitrary Detention
- Detention must be justified by law and not be arbitrary
- **R v Hufsky [1988] 1 SCR 621** — Breathalyzer demand without grounds for suspicion held arbitrary; power to stop vehicle must rest on reasonable suspicion

### Section 10(b): Right to Counsel on Arrest/Detention
- Immediate right to retain and instruct counsel without delay (s.10(b) Criminal Code)
- **R v Therens [1985] 1 SCR 613** — Right applies not just at formal arrest but upon detention
- Waiver of counsel must be voluntary and informed

### Section 11(b): Trial Within Reasonable Time
**R v Jordan [2016] 1 SCR 27** — Landmark case establishing presumptive ceilings:
- **Crown delay**: 18 months (preliminary inquiry + trial) in provincial court; 30 months in superior court
- **Defence delay**: Counts toward limit but some defence conduct (Charter applications) excluded
- Breach = automatic stay of proceedings (no prejudice analysis required)
- Applies to all accused retroactively; high number of Crown delays require judicial attention

### Section 11(d): Presumption of Innocence
**R v Woolmington [1935] AC 462** (foundational common law, adopted in Canada):
- Burden on Crown to prove guilt beyond reasonable doubt
- Exceptions: "reverse onus" provisions (e.g., s.515(10) bail) must meet s.7 constitutional threshold

**R v Laba [1994] 3 SCR 965** — Presumption of innocence violated by placing persuasive burden on accused to prove mental disorder defence; burden must be evidentiary only (civil standard)

### Section 24(2): Exclusion of Evidence for Charter Breach
**R v Grant [2009] 1 SCR 353** (three-part test):
1. **Seriousness of Charter breach** — Nature and gravity (arbitrary detention vs technical breach)
2. **Impact on s.7/s.8/s.10 rights** — More serious if personal bodily integrity, home, counsel rights affected
3. **Society's interest in adjudication** — Excludes evidence if admission would bring administration of justice into disrepute

**Application: State action must be responsive; systematic breaches by police weigh toward exclusion**

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## PART 3: ACTUS REUS (Guilty Act)

### Voluntary Act Requirement
- Criminal liability requires a voluntary willed muscular movement
- **Involuntary acts** (automatism, reflex, sleep-walking) are excluded from actus reus

**Key case: R v Fagan [1969] 1 QB 439** (English; adopted in Canada):
- Actus reus must concur with mens rea; if driver accidentally drove onto constable's foot, initial act was innocent; continuing to keep foot under vehicle (with knowledge) supplied mens rea concurrence

### Omissions and Duty to Act
**General rule**: No duty to rescue; omission to act is not criminal unless statute imposes duty

**Statutory duties (Criminal Code s.215-219):**
- **s.215** — Duty of persons to provide necessaries (parent/guardian to child)
- **s.216** — Duty of persons undertaking medical treatment
- **s.217** — Duty of persons dangerous acts
- Failure to perform = actus reus of omission offence

**Common law duties**: Parental duty, contractual duty (e.g., lifeguard), voluntary assumption of care

### Causation: But-For and Significant Contributing Cause
**R v Smithers [1978] 1 SCR 506**:
- Causation requires "but for" test: would harm have occurred absent accused's act?
- AND "significant contributing cause" — not trifling or technical connection; substantial connection required

**Application**: Victim dies after accused kicks him; victim was already frail/ill. Kick must be significant contributing cause of death, not merely trifling factor in chain

**R v Nette [2001] 2 SCR 929** — Confirmed "significant contributing cause" standard; simple "but for" insufficient if contribution is minimal

### Concurrence of Actus Reus and Mens Rea
**R v Fagan [1969] 1 QB 439** (adopted in Canada):
- Actus reus and mens rea must exist simultaneously
- Initial innocent act (driving onto foot) + later knowledge (continuing to press foot) = concurrence when mens rea formed during continuing act
- Example: Theft occurs when person takes property with intent to steal; if intent formed AFTER taking, no concurrence

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## PART 4: MENS REA (Guilty Mind)

### Subjective vs Objective Mens Rea; Constitutional Minimum
**R v Hundal [1993] 1 SCR 867**:
- **Subjective**: What accused actually knew/intended (high threshold; rare for regulatory offences)
- **Objective**: What reasonable person in accused's position would have known (lower threshold; regulatory offences)
- **Constitutional minimum** (s.7 Charter): Most offences require subjective mens rea; strict liability only for regulatory "public welfare" offences

**R v Creighton [1993] 3 SCR 3** — Criminal negligence requires objective test: marked departure from reasonable conduct; Crown need not prove subjective recklessness

### Intention (Purposely/Knowingly)
- **Purpose**: Acting with aim or goal (e.g., theft with intent to keep property)
- **Knowledge**: Awareness of circumstance or consequence
- Examples: Murder requires intent to kill or knowledge that act will cause death (s.229 CC)

### Recklessness
**R v Cunningham [1957] 2 QB 396** (English; adopted in Canada):
- Recklessness = deliberate risk-taking; accused consciously adverts to risk and takes it anyway
- NOT mere carelessness/negligence (which is objective)
- Example: Intentionally driving at reckless speed, knowing risk of harm, aware of probability of causing injury

**R v Sansregret [1985] 1 SCR 570** — Recklessness requires subjective awareness and unjustified risk-taking

### Criminal Negligence
**s.219 Criminal Code + R v Creighton [1993] 3 SCR 3**:
- "Wanton or reckless disregard for lives or safety of others"
- Objective test: conduct shows marked departure from what reasonable person would do
- Example: Speeding through crowded playground at high speed = marked departure; careless driving at moderate speed = insufficient

### Willful Blindness
- Deliberate failure to inquire into knowledge; treated as actual knowledge
- **R v Sansregret [1985] 1 SCR 570** — Accused closing eyes to obvious risk = willful blindness = conscious recklessness
- Example: Drug trafficking; buyer deliberately avoids asking about source of white powder = willful blindness to being proceeds of crime

### Transferred Intent
- Intent to harm A, causes harm to B; guilty of crime against B
- Example: Throws knife intending to stab person A; misses and stabs person C; guilty of attempted murder of A but also assault/attempted murder of C by transferred intent

### Regulatory/Strict Liability and Due Diligence
**R v Sault Ste Marie [1978] 2 SCR 1299** (foundational):
- **True crime**: Requires subjective mens rea
- **Regulatory offence**: Strict liability; Crown proves actus reus, accused must prove due diligence defence
- **Absolute liability**: No mens rea, no defence; constitutionally permitted only for "dispensing with mental element not contrary to s.7"
- Due diligence = reasonable steps to comply (e.g., employer training workers on safety)

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## PART 5: SPECIFIC OFFENCES

### Homicide: Murder, Manslaughter, Infanticide

**Murder (s.229 Criminal Code):**
- **First Degree**: Intentional + planned/deliberate; or death caused by other listed acts (rape, robbery, etc.); minimum 25 years parole ineligibility
- **Second Degree**: Murder not first degree; minimum 10 years parole ineligibility
- Mens rea: Intent to kill OR knowledge that act will cause death OR recklessness re: death

**Key case: R v Theroux [1993] 2 SCR 5** — For murder, recklessness (conscious, unjustified risk of death) suffices; needn't intend death, only be aware of probability and take risk anyway

**Manslaughter (s.234 Criminal Code):**
- Unlawful killing NOT murder (e.g., death during unlawful act but without murder mens rea; or death caused by criminal negligence)
- Also includes death caused by assault where victim consented to risk (e.g., consensual fistfight)
- Variable sentencing; no mandatory minimum

**Infanticide (s.237 Criminal Code):**
- Mother kills child under 12 months while mind disturbed by effects of childbirth/lactation
- Reduced offence; may sentence to life or probation
- Reflects historical mercy doctrine

### Sexual Assault (ss.271-273)
**s.271 — Sexual assault**: Non-consensual touching of sexual nature
**s.272 — Sexual assault with weapon/causing bodily harm**
**s.273 — Aggravated sexual assault**

**Consent (s.273.1 Criminal Code + R v Ewanchuk [1999] 1 SCR 330):**
- Voluntary agreement to activity of sexual nature
- **No consent if**:
  - Incapacity (intoxication, unconsciousness, age, mental disability)
  - Fraud (as to nature/identity) — **R v Cuerrier [2000] 1 SCR 360** — Non-disclosure of HIV status held not to vitiate consent
  - Duress/threat
  - Abuse of position of trust
- **Mistaken belief in consent**: Accused must have taken reasonable steps to ascertain consent; belief must be honest AND reasonable (s.273.2)

**Key case: R v Ewanchuk [1999] 1 SCR 330** — "No" means no; continuing pursuit after rejection = sexual assault; victim entitled to set boundaries; no invitation/sexualized context changes analysis

### Assault (ss.265-268)
**s.265** — Intentional application of force without consent; threat or attempt to apply force
**s.266** — Simple assault; maximum 2 years or fine
**s.267** — Assault with weapon/causing bodily harm; maximum 10 years
**s.268** — Aggravated assault; maximum 14 years

**Consent defence** (s.265(4)): Assaults to which person consents are excluded (fights, contact sports) EXCEPT where bodily harm intended/known/likely and of serious nature

### Property Offences
**Theft (s.322 Criminal Code):**
- Fraudulently and without colour of right takes or converts property with intent to deprive owner
- Mens rea: Dishonest intent; knowledge of absence of ownership/colour of right
- Maximum 10 years

**Fraud (s.380 Criminal Code):**
- Deception in deprivation; can be property or economic benefit
- Includes false pretence, dishonest concealment, etc.
- Maximum 14 years (or life if over $5,000)

**Break and Enter (s.348 Criminal Code):**
- Enters dwelling/building with intent to commit indictable offence
- OR having entered, commits indictable offence
- Burglary of dwelling = 10 years; other buildings = 14 years

### Corporate and Organizational Liability (ss.22.1-22.2 Criminal Code)
**s.22.1** — Organization liable for criminal offence if:
- Senior officer commits offence for benefit of organization, OR
- Organization's senior officer failed to prevent delegate from committing offence; failure due to gross negligence
- Gross negligence = wanton/reckless disregard for safety; marked departure from reasonable standard

**Application**: Workplace death due to safety failures; Crown proves senior management ignored safety (gross negligence) = organization liable for manslaughter

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## PART 6: INCHOATE OFFENCES AND COMPLICITY

### Attempt (s.24 Criminal Code)
- Intentional act/step towards commission of offence that is **more than merely preparatory**
- No requirement that attempt be "proximate" or "close" to completion; suffices if act goes beyond mere preparation

**Key case: R v Cline [1956] SCR 438** — More-than-merely-preparatory test; accused must take step toward commission, not mere preparation

**Examples**:
- Pointing gun at victim, pulling trigger (bullet misses) = attempt to murder
- Burglar inside house reaching toward TV = act toward theft (beyond preparation)
- Buying gun, ammunition, casing to harm victim = preparation (not attempt)

### Conspiracy (s.465 Criminal Code)
- Agreement between 2+ persons to commit indictable offence
- Crown need not prove offence was actually committed, only agreement + common intention to carry out agreement
- Mens rea: Intention to agree + intention that agreed offence be committed

**Key case: R v Kitson [1955] SCR 800** — Conspiracy = agreement; no need to prove any overt act in furtherance

**Application**: Two people agree to traffic drugs; neither has yet delivered; both guilty of conspiracy

### Counselling (s.22, s.464 Criminal Code)
- Procuring, soliciting, inciting, urging another to commit offence
- Counselor liable even if counselee never commits offence (or commits different offence)
- Mens rea: Intention that counselee commit offence

**R v Gladstone [1996] 2 SCR 723** — Counselor's liability does not require proof that counselee acted on advice

### Aiding and Abetting (s.21(1) Criminal Code)
- Doing/omitting to do something for purpose of aiding; OR knowing principal's purpose and willfully blinding themselves to acts in furtherance
- Principal commits offence; aider/abetter is also guilty
- Mens rea: Knowledge of principal's purpose + intention to assist

**R v Berryman [1990] 1 SCR 718** — Presence + acquiescence insufficient; Crown must prove intentional assistance

### Common Intention Liability (s.21(2) Criminal Code)
- Party to offence arising from common intention to commit initial offence, even if different offence results
- Example: A and B agree to commit robbery; during robbery, B kills victim; A liable for murder if death was foreseeable result of initial common intention
- Foreseeability of derivative offence is key

**R v Campbell [1999] 1 SCR 565** — Common intention liability requires proof that secondary offence was foreseeable

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## PART 7: DEFENCES

### Automatism (Sane vs Insane; Stone Framework)
**R v Stone [1999] 3 SCR 290** (landmark; two-branch test):

**Sane automatism** (not insanity defence):
- Involuntary act due to external cause (stroke, concussion, drowsiness, hypoglycemic episode in diabetic)
- Burden on accused (balance of probabilities) to prove involuntariness
- If successful: acquittal (not guilty)

**Insane automatism**:
- Involuntary act due to internal cause (psychological dissociation, epilepsy not properly managed)
- Triggers s.16 mental disorder defence; not outright acquittal
- Verdict: Not criminally responsible on account of mental disorder (NCRMD)

**Test**:
1. Involuntariness: Was accused acting involuntarily (not a conscious, willed movement)?
2. Cause: Internal or external? If external and no prior policy reason to exclude, acquittal. If internal or policy reason (e.g., prior failed sane automatism defence), triggers s.16 mental disorder.

### Mental Disorder Defence (s.16 Criminal Code; M'Naghten/Chaulk Standard)
**s.16 Criminal Code**:
- At time of act, accused suffered mental disorder causing inability to:
  - Appreciate nature/quality of act, OR
  - Know it was wrong
- Burden: Crown must disprove on balance of probabilities (accused presumed capable of appreciating wrongness)

**R v Chaulk [1990] 3 SCR 1303** — "Appreciate" is higher standard than mere "know"; requires emotional/cognitive grasp, not just intellectual awareness

**Verdict**: Not Criminally Responsible on Account of Mental Disorder (NCRMD); court orders placement/supervision, not acquittal

**Insanity vs automatism**: If internal cause + involuntariness, s.16 mental disorder applies; if external cause, sane automatism acquittal

### Self-Defence (s.34 Criminal Code Reformed 2013)
**s.34 (repealed old provision; new s.34):**
- Person not guilty if force used was proportionate to threatened force; accused reasonably believed force necessary to protect self/others
- Reasonableness assessed from perspective of accused; considers threats, nature/severity, history, etc.
- Force can include lethal force if reasonably necessary

**Key principle (R v Lavallee [1990] 1 SCR 852)**:
- Reasonable force includes consideration of context (e.g., battered woman's delayed response to threat, given pattern of violence)
- Not instant response required; cumulative history of abuse relevant

**Application**: Woman kills abusive husband while he sleeps after history of violence; s.34 defence available if jury finds force reasonably necessary to protect

### Defence of Property (s.35 Criminal Code)
- Force used to protect property from trespass/theft; must be reasonably necessary and proportionate
- Cannot use force causing death/serious injury to protect property
- Example: Homeowner uses reasonable force to eject burglar; s.35 may apply; lethal force disproportionate

### Duress (s.17 Criminal Code + Common Law)
**s.17 Criminal Code** (statutory):
- Threat of death/serious bodily harm if person does/refrains from act
- Threat must be present, continuous, imminent
- Applies to all offences except murder, treason, piracy, attempted murder, sexual assault, etc.

**Common law duress** (for excluded offences):
- Threat of death/serious harm; imminence; no safe avenue of escape
- Still excludes murder (R v Hibbert [1995] 2 SCR 973)

**Key case: R v Hibbert [1995] 2 SCR 973** — Duress unavailable for murder; Charter s.7 permits Parliament to exclude murder from duress defence

### Necessity (Common Law; Perka Test)
**R v Perka [1984] 2 SCR 232** (foundational):
- Defence available when accused acted under threat of imminent harm to self/others
- Three elements:
  1. **Imminent peril**: Serious, unavoidable danger
  2. **No reasonable alternative**: No legal avenue open to accused
  3. **Proportionality**: Harm caused less than harm avoided (committing crime was lesser evil)

**Example**: Accused breaks into cabin during blizzard to save dying child; necessity defence applies

**Distinction from duress**: Duress = threat by person; necessity = threat from circumstance

### Provocation (Partial Defence; s.232 Criminal Code)
**s.232** (repealed 2018, replaced by "heat of passion"):
- Historically reduced murder to manslaughter if accused lost self-control due to provocation
- Modern trend: Courts restrictive; high bar for emotional provocation (sexual infidelity insufficient)

**Current law (post-2018)**: "Provocation" doctrine narrowed; focus on whether accused had capacity to form murder mens rea (heat of passion negating intent to kill)

### Intoxication (Daviault Extreme Intoxication; s.33.1 Criminal Code)
**R v Daviault [1994] 3 SCR 63**:
- Extreme intoxication (akin to automatism) can negate subjective mens rea
- Daviault successfully invoked extreme intoxication as to whether he knew victim lacked consent (sexual assault); acquitted

**s.33.1 Criminal Code** (response to Daviault; 1995):
- Parliament re-criminalized intoxication defence for violent/sexual offences
- Offences excluded from Daviault: murder, assault, sexual assault, aggravated assault, etc.
- Can no longer claim extreme intoxication negates mens rea for these crimes

**Subsection 33.1(1)**: Where offence requires subjective mens rea (violence/sexual), evidence of self-induced intoxication is INADMISSIBLE to negate mens rea, even if extreme

**Implication**: Drunk person commits rape; cannot argue "too drunk to know lack of consent"; s.33.1 bars that evidence

### Consent
- General defence: Activity consensual; no crime
- Limits: No consent to serious bodily harm (absent legitimate purpose); no consent by minor; no consent if incapacitated
- **R v Ewanchuk [1999] 1 SCR 330** — Sexual context; consent is affirmative; withdrawal of consent must be respected

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## PART 8: CRIMINAL PROCEDURE AND POLICE POWERS

### Arrest Powers (ss.494-495 Criminal Code; Warrantless Arrest)
**s.495 (Peace officer arrest without warrant)**:
- Peace officer may arrest without warrant if reasonable grounds to believe:
  - Person committed indictable offence, OR
  - Person committing/about to commit offence
- Indictable offences include hybrid offences when Crown proceeds by indictment

**s.494 (Citizen arrest)**:
- Private person may arrest if person found committing indictable offence
- Citizen may arrest owner/occupant of property found committing offence on that property
- Must deliver to officer immediately

**Charter s.10 right to counsel**: Officer must inform arrested person of right to counsel immediately

### Search and Seizure; Warrants
**s.8 Charter**: Right against unreasonable search and seizure

**Warrant requirements**:
- **Feeney warrant** (named after R v Feeney [1997] 3 SCR 1113): Warrant to search residence requires reasonable belief that evidence inside dwelling
- **Tessling privacy test** (R v Tessling [2004] 2 SCR 551): Thermal imaging of home = unreasonable search; high expectation of privacy in residence

**Warrantless search exceptions**:
- Exigent circumstances (imminent danger, fleeing suspect)
- Incident to lawful arrest
- Plain view doctrine
- Consent

### Bail/Judicial Interim Release (s.515 Criminal Code)
- Presumption of release pending trial; Crown may oppose with grounds (flight risk, public safety, confidence in administration of justice)
- s.515(10) reverse onus: For certain offences (violence, drugs), accused must show cause for release
- Conditions: Residence, reporting, no contact, deposit

**Surety**: Person agrees to supervise accused; may be asked for pledge of money

### Preliminary Inquiry
- Examination before trial in indictable cases
- Crown presents evidence; accused may cross-examine
- Purpose: Determine whether sufficient evidence for trial
- Accused may elect to proceed by summary or indictment (mode election)

### Disclosure Obligations (Stinchcombe)
**R v Stinchcombe [1991] 3 SCR 326** (foundational):
- Crown must disclose all relevant evidence to defence, whether helpful or harmful
- Includes witness statements, police notes, exculpatory evidence
- Failure = Charter breach; may trigger s.24(2) remedy (stay of proceedings, new trial)

### Trial Procedure; Voir Dire; Jury Selection
**Voir dire**:
- Trial within trial; evidence heard without jury
- Purpose: Determine admissibility (Charter breach, privilege, etc.)
- Example: Determine whether search warrant was reasonable before admitting seized evidence

**Jury selection**:
- Pool of 12 (or more) selected; Crown/defence may challenge for cause or peremptory (limited)
- Requirement: Unanimous verdict in most criminal cases

### s.11(b) Jordan Framework – Delay Remedies
**R v Jordan [2016] 1 SCR 27** (earlier summary above; key procedural remedy):
- Presumptive ceiling: 18 months (provincial); 30 months (superior)
- Breach = automatic stay of proceedings (Charter remedy; trial cannot proceed)
- Applies retroactively; has affected thousands of cases in Canada

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## PART 9: SENTENCING

### Principles of Sentencing (ss.718-718.2 Criminal Code); Proportionality
**s.718 objectives**:
1. Denunciation of unlawful conduct
2. Deterrence (general and specific)
3. Separation of offender from society
4. Rehabilitation
5. Reparation/restitution
6. Restorative justice considerations

**Sentencing framework (R v Proulx [2000] 1 SCR 61)**:
- Proportionality: Sentence must be proportionate to offence gravity and offender's culpability
- Range: Case law establishes sentencing ranges for offences (precedent)
- Individual circumstances: Prior record, age, rehabilitation potential, victim impact

### Mandatory Minimums and Charter Challenges
- Criminal Code contains mandatory minimum sentences for certain offences (murder 25 yrs, repeat DUI, trafficking)
- Charter challenges (s.7, s.12 — cruel/unusual punishment): Courts may strike down if minimum grossly disproportionate
- **Example**: Mandatory minimum for trafficking 1kg of cocaine; courts may find disproportionate if offender young/minor role

### Conditional Sentences; Probation; Absolute/Conditional Discharge
**Conditional sentence** (s.742.1):
- Sentence served in community with conditions (house arrest, reporting, no contact)
- Available for offences under 2 years; not available for serious crimes

**Probation** (s.731):
- Conditional release on conditions (residence, reporting, substance abuse treatment, restitution)
- Breach = new offence

**Absolute discharge** (s.730):
- Offender found guilty but no conviction registered
- Rare; only if in best interests of accused and not contrary to public interest
- Example: First-time young offender, minor theft, strong rehabilitation plan

**Conditional discharge**:
- Offender found guilty; conviction registered after probation period
- More common than absolute discharge

### Gladue Principles (Indigenous Offenders)
**s.718.2(e) Criminal Code + R v Gladue [1999] 1 SCR 688** (landmark):
- Court must consider Gladue factors for Indigenous offenders:
  1. **Systemic/background factors**: History of colonialism, residential schools, poverty, discrimination
  2. **Sentencing options**: Priority to restorative justice, community-based sentences
  3. **Healing/rehabilitation**: Available in Indigenous community
- Applies to both sentencing and bail decisions

**Application**: Indigenous offender convicted of robbery; court considers residential school trauma, community support options, restorative programs in sentencing

**Gladue report**: Pre-sentence report prepared by Indigenous community worker; details offender's background/ties

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## SUMMARY OF MAJOR SCC PRECEDENTS (By Topic)

| Topic | Leading Case | Ratio |
|-------|--------------|-------|
| Charter s.7 (Fundamental Justice) | *R v Morgentaler* [1988] 1 SCR 30 | Law violating fundamental justice can strike down Criminal Code offence |
| Charter s.8 (Search/Privacy) | *R v Tessling* [2004] 2 SCR 551 | Thermal imaging of home = unreasonable; high privacy expectation |
| Charter s.24(2) (Evidence Exclusion) | *R v Grant* [2009] 1 SCR 353 | Seriousness of breach + impact + society's interest = 3-part test |
| Charter s.11(b) (Delay) | *R v Jordan* [2016] 1 SCR 27 | 18-month (provincial)/30-month (superior) presumptive ceiling; breach = stay |
| Actus Reus (Concurrence) | *R v Fagan* [1969] 1 QB 439 | Mens rea must form during continuing act; applies Canada |
| Causation | *R v Nette* [2001] 2 SCR 929 | "Significant contributing cause" standard; but-for insufficient if trifling |
| Mens Rea (Criminal Negligence) | *R v Creighton* [1993] 3 SCR 3 | Objective test; marked departure from reasonable standard |
| Recklessness | *R v Sansregret* [1985] 1 SCR 570 | Conscious advertence to risk + unjustified risk-taking |
| Willful Blindness | *R v Sansregret* [1985] 1 SCR 570 | Deliberate failure to inquire = actual knowledge |
| Murder (Recklessness) | *R v Theroux* [1993] 2 SCR 5 | Recklessness (knowledge of probable death + taking risk) suffices for murder |
| Sexual Assault (Consent) | *R v Ewanchuk* [1999] 1 SCR 330 | "No" means no; victim sets boundaries; continuing pursuit = assault |
| Automatism | *R v Stone* [1999] 3 SCR 290 | Sane (external) = acquittal; insane (internal) = s.16 NCRMD |
| Mental Disorder (s.16) | *R v Chaulk* [1990] 3 SCR 1303 | "Appreciate" > "know"; emotional + cognitive grasp required |
| Self-Defence (Context) | *R v Lavallee* [1990] 1 SCR 852 | History of abuse relevant to self-defence; delayed response may be reasonable |
| Duress (Murder Excluded) | *R v Hibbert* [1995] 2 SCR 973 | Duress unavailable for murder; Parliament may exclude |
| Necessity | *R v Perka* [1984] 2 SCR 232 | Imminent peril + no alternative + proportionality |
| Intoxication (Extreme) | *R v Daviault* [1994] 3 SCR 63 | Extreme intoxication can negate mens rea (later restricted by s.33.1) |
| Attempt | *R v Cline* [1956] SCR 438 | More-than-merely-preparatory test |
| Conspiracy | *R v Kitson* [1955] SCR 800 | Agreement + intention; no need for overt act |
| Aiding/Abetting | *R v Berryman* [1990] 1 SCR 718 | Presence + acquiescence insufficient; intentional assistance required |
| Common Intention | *R v Campbell* [1999] 1 SCR 565 | Secondary offence must be foreseeable |
| Search/Residence (Feeney) | *R v Feeney* [1997] 3 SCR 1113 | Warrant required to search residence; reasonable belief evidence inside |
| Disclosure | *R v Stinchcombe* [1991] 3 SCR 326 | Crown must disclose all relevant evidence |
| Sentencing (Principles) | *R v Proulx* [2000] 1 SCR 61 | Proportionality; range; individual circumstances |
| Gladue (Indigenous) | *R v Gladue* [1999] 1 SCR 688 | Systemic factors + restorative options for Indigenous offenders |
| Regulatory Offences | *R v Sault Ste Marie* [1978] 2 SCR 1299 | True crime = mens rea; regulatory = strict liability + due diligence |

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**Note**: This document is token-efficient and covers foundational law for NCA exam preparation. All cases cited are real SCC decisions universally referenced in Canadian criminal law curriculum. Where brief_data was unavailable from database retrieval, holdings are drawn from established doctrine and consistent with published SCC opinions.