Table of Contents
The Criminal Law and the Division of Powers ..........................................................................................................3
Administrating the Criminal Law .............................................................................................................................4
R v Morgentaler (1993) ................................................................................................................................................... 4
Reference re Firearms Act (CAN) .................................................................................................................................... 4
What is a criminal offence (true crime)? ..................................................................................................................5
The defining features of Criminal Law .....................................................................................................................5
What are some Organizing principles of Criminal Law? ............................................................................................6
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Nullum Principle: ..................................................................................................................................................... 6
What is the Role of Criminal Courts? .......................................................................................................................6
What tools do we give Criminal Courts to fulfill their Judicial Review Role? .............................................................6
Codification: Week 2 .................................................................................................7
Common Law Defences ..........................................................................................................................................8
Amato v The Queen (1982) ............................................................................................................................................. 8
COMMON LAW OFFENCES ......................................................................................................................................8
Frey v Fedoruk (1950) ..................................................................................................................................................... 8
R v Jobidon (1991............................................................................................................................................................ 9
R v (DWL) ...................................................................................................................................................................... 10
Codification and Certainty in the Criminal Law .......................................................12
R v Heywood (1994) ............................................................................................................................................. 12
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) 2004...................................... 13
R v PARE (1987 2 SCR:................................................................................................................................................... 14
The Limits of the Criminal Law- Class 4 ...................................................................16
HARM PRINCIPLE.................................................................................................................................................. 16
R v Malmo- Levine; R v Caine (2003)............................................................................................................................ 16
R v LABAYE (2005) ............................................................................................................................................ 18
R v RDS 1997, SCC ...................................................................................................20
RDS GUEST LECTURE October 7th, 2019 ................................................................................................................ 22
Limits of the Criminal Law: Sex Work ......................................................................23
Canada (Attorney General) v Bedofrd (2013) ......................................................................................................... 23
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Arbitrariness .......................................................................................................................................................... 25
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Overbreadth .......................................................................................................................................................... 25
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Gross Disproportionality: ...................................................................................................................................... 25
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Limits: Hate Crime October 28, 2019 ......................................................................26
R v Keegstra (1930)............................................................................................................................................... 26
R v Zundel (1992) .............................................................................................................................................. 29
PART II- Race and Criminal Justice ..........................................................................34
R v Marshall ..................................................................................................................................................... 34
PART III- Principles of Criminal Liability ...................................................................38
Distinguishing True Crimes & Regulatory Offences .................................................39
R v Beaver ............................................................................................................................................................ 39
R v Sault Ste Marie (1978)..................................................................................................................................... 40
Re BC Motor Vehicle Act ....................................................................................................................................... 41
Mock Exam .............................................................................................................42
2
Criminal Law and Procedure Lecture Notes
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The sources of Canadian criminal law are 1) the Constitution; 2) Statue law and in particular the
Criminal Code of Canada and 3) Common law or judge made decisions
Criminal law in Canada is enacted by the federal Parliament, which under s 91 (27) of the Constitution
Act has exclusive jurisdiction over criminal law and procedure
Criminal laws are designed to denounce and punish inherently wrongful behaviour and to deter from
committing crimes
The Actus Reus is usually defined as an overt act and the required fault element is the Mens rea
A Subjective Fault or mental element depends on what was in the particular accused’s minds at the
time that the criminal act was committed
An Objective Fault Element does not depend on the accused’s own state of mind but rather on what a
reasonable person in the circumstances would have known or done. Ignorance of the law is generally not
an excuse
Section 21 of the CC means that people who have different levels of involvement in a crime may be
found guilty of the same offence.
The Canadian Charter of Rights and Freedoms
- The Charter, as part of the supreme law of Canada, applies to the activities of Canadian legislatures and
governmental officials such as the police
- The legal rights set out in ss 7-14 of the Charter are designed to protect those subject to criminal
investigation
- Section 8 of the Charter provides the right to be secure against unreasonable searches and seizures,
while Section 9 provides the right to not arbitrarily be detained or imprisoned
- Section 10: Upon arrest or detention, individuals have a number of rights, including the right to retain
and instruct counsel without delay and to be informed of that right
- Section 11-14 protect those who are charged and tried for offences
- Section 15(1): Every individual is equal before and under the law and has the right to equal protection
and equal benefit of the law without discrimination based on a number of factors (page 8)
- If a law or practice is found to infringe a Charter right, it is open for the state to prove under Section 1 of
the Charter that it is a reasonable limit prescribed by law and demonstrably justified in a free and
democratic society. If the law is not justified, then under S 52 of the Constitution Act, any law that is
inconsistent with the Charter is to the extent of the inconsistency of no force or effect
- Section 24 (1) allows people who have had their charter rights violated to obtain a remedy that the court
considers appropriate
- Section 24 (2): governs the remedy of exclusion of evidence. Evidence shall be excluded from a
criminal trial if its admission would bring the administration of justice into disrepute
The Criminal Law and the Division of Powers
- Section 91 (27) of the Constitution Act gives the federal Parliament exclusive jurisdiction to legislate in
relation to Criminal law and Section 91 (28) allows the federal Parliament to establish, maintain and
manage penitentiaries (for people serving time in prison for two years or more)
- Section 92 (15): Provinces have jurisdiction to impose punishment by way of fine, penalty, or
imprisonment in order to enforce valid provincial laws
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Provincial legislation
- Provincial laws can be struck down either for lack of constitutional power under section 92 or for
conflict with federal legislation
- Under both heads the SCC has tended to uphold provincial law
Administrating the Criminal Law
- Section 92 (14) of the Constitution gives the provinces authority over the “administration of justice in
the province, including the constitution, maintenance, and organization of provincial courts, both of civil
and of criminal jurisdiction, and including procedure in civil matters in those courts
- In 1979 the SCC was called on to decide whether the federal government could control prosecutions
under the Narcotic Control Act. The court held that the federal government had this power not on the
basis that the Narcotic Control Act was criminal law, but rather because it was enacted under the “peace,
order and good government” clause.
Switzman v Elbling and AG of Quebec (1957) SCR 285
- The Act Respecting Communistic Propaganda (a Quebec statue) was challenged. The judge stated that it
is sufficient to dec that the Act is legislation in relation to the criminal law over which, by virtue of S. 91
of the BNA, the parliament of Canada has exclusive legislative authority. The pith and substance of the
impugned Act is in relation to criminal law, so the conclusion is that the Act is unconstitutional.
- Issue: Is the Act Respecting Communistic Propaganda constitutionally valid?
- The SCC said this is not about property, it is a matter of criminal law. It was a true crime
R v Morgentaler (1993)
- Issue: Was the Nova Scotia Medical Services Act and the regulations under the Act ultra vires on the
ground that they are in pith and substance criminal law? The act and regulation make it an offence to
perform an abortion outside a hospital
- It was an unconstitutional provincial invasion of the federal criminal law power. This legislation deals
with a subject historically considered to be part of the criminal law-the probation of the performance of
abortions with penal consequences. Its legal effect reproduces the now defunct S 251 of the CC
Reference re Firearms Act (CAN)
- Facts: In 1995, Parliament amended the Criminal Code by enacting the Firearms Act to require the
holders of all firearms to obtain licenses and register their guns. In 1996 the Province of Alberta
challenged Parliament’s power to pass the gun control law and it was upheld. This is the appeal
- The federal government asserts that the gun control law falls under its criminal law power, S 91 (27) and
under its general power to legislate for the “Peace, order and good Government” of Canada. Alberta on
the other hand, says the law falls under its power over property and civil rights, section 92 (13).
- Issue: Is the Firearms Act Constitutionally valid? Is it a federal or provincial power?
- The gun control law comes within Parliament’s jurisdiction over criminal law. The law in “pith and
substance” is directed to enhancing public safety by controlling access to firearms through prohibitions
and penalties. This brings it under the federal criminal law power. The intrusion of the law into
provincial jurisdiction over property and civil rights is not so excessive as to upset the balance of
federalism
- The questions in this case are restricted to the issue of the division of powers
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Lecture Notes Week 1
Is this a criminal Offence (True Crime)?
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Every parent or guardian of a child under the age of 6 who refuses to immunize their child for:
Diptheria/Tetannus/ Polio/ Measles/ Mumps
Is guilty of an offence and subject to imprisonment for not more than one year
We already have a section of the Criminal Code that provides that parents must provide the necessities
of life for their children. We also have Section 220 and 221 in regards with Criminal Negligence
Is this a true crime? Our starting reference is the Classic Margarine Reference Definition
 It could fall under Public Safety/Health. Almost everything could be a true crime.
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2 Question: Even if this is a true crime, is it a good thing to have this?
What is a criminal offence (true crime)?
- Classic Margarine Reference Definition: “A crime is an act which the law, with appropriate penal
sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil
or injurious or undesirable effect upon the public against which the law is directed. That effect may be in
relation to social, economic or political interests; and, the legislature has had in mind to suppress the evil
or to safeguard the interest threatened.”
The defining features of Criminal Law
- A prohibition with penalty including imprisonment enacted for a criminal law purpose
o Prohibition designed to serve an educative function as to the limits of acceptable behaviour
o Potential of imprisonment designed to reflect the seriousness of the conduct (denunciation) and
to deter (both the individual (specific deterrence) & others (general deterrence)
- Criminal law purposes can include:
 Protect against harm
Violence/Public safety/health
 Maintain public order
Public nuisance
 Enforce morality
Sanctity of the body
Gambling
Sexual morality
Limits of using Criminal law to achieve its purpose
- With our Vaccination example above, is there a risk of over criminalization?
It will impact people who don’t know about the requirement of vaccinations, such as refugees and
immigrant communities. There is strong evidence that child welfare has a bigger impact in Aboriginal
and Black communities. Single mothers will be impacted more, its not like they will charge the father.
We know based on history and current practices there will be groups who are disproportionately
targeted. For example, an officer who pulls over a Black woman with kids in the car for a license check
could also ask her if her kids are vaccinated?
- Once a case falls under Section 91 (27) that’s the end of it, and it could not be really challenged
5
What are some Organizing principles of Criminal Law?
- Only Federal government has jurisdiction to enact criminal law (section 91 (27)
- There are no common law crimes but common law defences are preserved
o Section 9(a) of the Criminal Code: No personal shall be convicted of a common law offence.
This abolishes common law or judge-made offences with the exception of contempt to court.
o Section 8(3) of the Criminal Code: Common law defences still apply
- All crimes must have an actus resus (physical act or omission) & a fault element
- Nullum Principle:
o Criminal law must be fixed and certain to set out an identifiable zone of risk
o There are no common law crimes. Section 9(a) of the Criminal Code: No personal shall be
convicted of a common law offence. This abolishes common law or judge-made offences with
the exception of contempt to court
o Criminal law must not be vague or overbroad
If its vague, its not going to fulfill its function, nobody will understand it. If it is overbroad, we
will capture conduct that does not create a risk of harm
o Criminal law cannot be retroactive
Section 11 (g) and (i)of the Charter
Section 11(g) Any person charged with an offence has the right: not to be found guilty on
account of any act or omission unless, at the time of the act or omission, it constituted an offence
under Canadian or international law or was criminal according to the general principles of law
recognized by the community of nations
Section 11(i) if found guilty of the offence and if the punishment for the offence has been varied
between the time of commission and the time of sentencing, to the benefit of the lesser
punishment
o Burden of Proof
It is on the crown to prove the elements of a criminal offence beyond a reasonable doubt
What is the Role of Criminal Courts?
- Adjudicative function
Determine judicial interim release (bail)
Trial process to determine if Crown can prove offences
Judge alone trial (the most common)
Jury trials
Sentencing in cases of guilty pleas (85% of all charges) or findings of guilt
- Interpretative/Judicial Review function
Interpret Criminal Code provisions
Precedent
Ensure feds/provinces respect constitutional jurisdiction (subject-matter jurisdiction- division of powers)
Ensure parliament’s decision to criminalize meets constitutional (Charter) minimum standards
What tools do we give Criminal Courts to fulfill their Judicial Review Role?
- Statutory Interpretation (common law & Interpretation Act)
This is the primary tool we give the courts to determine boundaries, and to determine intent.
- Determining Parliament’s intent
Plain meaning, Bilingual
Context
Legislative history
Charter Values
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Strict Interpretation
Public policy
Should the courts be concerned with public policy or should it be the legislature?
Principles of Fundamental justice (section 7 of the Charter)
Arbitrariness (para 111 Bedford)
Overbreadth (para 112 Bedford)
Vagueness (para 150 (Canadian Foundation)
Gross disproportionality (para 120 Bedord)
Codification: Week 2
AW MEWETT, “THE CRIMINAL LAW, 1867-1967
- The commission report defined codification as follows: It is a reduction of the existing law to an orderly
written system, freed from needless technicalities, obscurities and other defects which the experience of
its administration has disclosed.
- Prior to the enactment of section 8 of the 1953 revision, prosecutions were successful for such common
law offences as abuse of office in taking fees wrongfully, public mischief, champerty and maintenance
and perhaps barratry
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It was thus not until 1953 that all common law offences were abolished throughout Canada.
In an attempt to codify the common law defences, the Commissioners recommended and Parliament
enacted Section 8(3) providing: Every rule and principle of common law that renders a justification or
excuse for an act continues in force and applies in respect of proceedings for an offence under this Act
or any other Act of the Parliament of Canada
Common Law Defences
- Why should offences at common law (judge-made law as opposed to legislation) be prohibited under
Section 9(a) of the Criminal Code but not defences, excuses, or justifications?
Amato v The Queen (1982)
- The Justice interpreted Section 8 (3) of the Criminal Code to allow the judicial development of a
defence of entrapment.
- “While, therefore, digesting and declaring the law as applicable to ordinary cases, we think that the
common law so far as it afford a defence should be prevailed in all cases not expressly provided for
- Section 8 (3) is the authority of the courts of criminal jurisdiction to adopt, if appropriate in the view of
the court, defences including the defence of entrapment.
COMMON LAW OFFENCES
Frey v Fedoruk (1950)
- Frey brought a civil suit as a plaintiff against Fedoruk and others for false imprisonment.
- Justice Cartwright( speaking for 6 out of 7 members of the SCC) said, “This appeal raises questions as
to whether the conduct of the Plaintiff, which is popularly described as that of a PEEPING TOM,
constitutes a criminal offence and if so, whether the defendants Fedoruk and Stone were justified in
arresting the plaintiff without warrant
- DECISION: THE SCC decided not to expand the range of common law crimes to cover “PEEPING
TOM”. This decision to place “the protection of the individual from the risk of oppression” above “the
protection of the state from the risk of disorder” showcases that Canadians are not at the mercy of
officials such as judges.
- Shortly after this, parliament decide to pass a trespass at night law.
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Section 9 of the CC abolishes common law or judge-made offences with the exception of contempt to
court.
In United Nurses of Alberta v AG Alberta, (1982), they tried to challenge the use of common law contempt of
court offence under Section 7 of the Charter by arguing that codification of crimes was a principle of
fundamental justice. The accused union was fined $400,000 for contempt of court by disobeying court
directives not to go on strike. It is argued that the offence of criminal contempt violated section 7 of the
Charter of Rights and Freedoms because it is not codified and is vague and arbitrary
The unions first position is that all uncodified common law crimes are unconstitutional. It is a
fundamental principle of justice, that all crimes must be codified, it submits. Criminal contempt
although mentioned in section 9 of the code Is not codified, both its Actus Reus and Mens rea being
defined at common law.
Firstly, there is no support that fundamental justice requires codification of all crimes
The lack of codification does not render the common law crime of criminal contempt of court
unconstitutional
With the exception of the common law offence of contempt, courts cannot create new common law
crimes.
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R v Jobidon (1991) Supreme Court of Canada 2 SCR 714
FACTS
- The accused was charged with manslaughter by the unlawful act of assault. He fought the
victim in a barroom in Sudbury and later in the parking lot of the bar
- The victim, who was drunk, but larger than the accused and had boxing experience, had
got the better of the fight in the bar
- In the parking lot, however, Jobidon rendered the victim unconscious with the first blow
to the face and then followed that up with several more blows causing the victim to go
into a coma and eventually die.
- At trial, the accused was found not guilty of manslaughter. The judge held that the
Victim’s consent to a “fair fight” negated assault, and held further that the accused
had not been criminally negligent. The Court of Appeal set aside the acquittal because
one cannot consent to such an assault and substituted a guilty verdict on the charge of
manslaughter.
ISSUE
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Whether the absence of consent is an essential element of this offence when it relates to
a fist fight where bodily harm is intentionally caused? OR Can one “consent” to bodily
harm in the context of a fist fight?
SOURCES
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Section 265 1(a) states that an assault occurs when, “without the consent of another
person, he applies force intentionally to that person, directly or indirectly.”
They relied on statutory interpretation and how other courts interpreted Section 265.
Section 14: Basically says you cannot consent to death. This is not a section 14 case
because they only consented to a fist fight, so it has no place here.
The court looked at precedent (specifically the English case), legislative intent, section
8(3) in terms of a common law defence for consent.
Holding
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Appeal is dismissed. There was an assault and this provided a basis for the
manslaughter conviction
Application Justice Gonthier writing for the majority:
- The limitation demanded by s. 265 as it applies to the circumstances of this appeal
is one which vitiates (negates) consent between adults intentionally to apply force
causing serious hurt or non-trivial bodily harm to each other in the course of a fist
fight or brawl.” This is the extent of the limit in which the common law requires
Policy Considerations
Social Utility argument:
- Social uselessness of fist fights>> it is not in the public interest that adults should
willingly cause harm to one another without a good reason.
- They seemed most influenced by the public policy argument: This idea of social utility
was a deciding feature of the decision, there is no social utility in allowing people to
decide conflicts with there fists. He seems persuaded using this public policy argument.
The social uselessness of fist fights, they often result in serious injury to the participants.
He also says Parliament could never have allowed for the infliction of bodily harm
- The policy of the common law (here they are addressing a common law defense) will
not affect the validity or effectiveness of freely given consent to participate in rough
sporting activities, so long as the intentional applications of force to which one consents
are within the customary norms and rules of the game. Unlike fist fights, sporting
activities and games usually have a significant social value; they are worthwhile.
DISSENT (Justice Sopinka)
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Ratio
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Unlike the majority, he states that consent cannot be read out of the offence. This is
because,
1) Consent is a fundamental element of many criminal offences, including assault and
2) The statutory provision creating the offence of assault explicitly provides for the
element of consent
Justice Sopinka took a different approach (he said the majority is wrong in deciding the
law but the suspect is guilty of assault). This justice said that Jobidon exceeded the scope
of consent, as there needs to be continuous consent and the person has to be conscious in
order to give consent.
The real question is that who should make this call, is it the Supreme Court or
Parliament?
In Sopinka’s view, use of the common law to eliminate an element of the offence that is
required by statue (consent) is more than interpretation and is contrary to not only the
spirit but also the letter of section 9(a), which is meant to promote certainty in
determining what conduct constitutes a criminal offence
The problem with this decision and the narrow interpretation of assault is that it leaves it
up to the court to define what does and what doesn’t have social utility
During a fist fight- you cannot rely on consent as a defence to assault under section 265
(1)(a) where there is the intentional infliction of serious or non-trivial bodily harm
(defined in section 2 of the CC) person cannot consent to death, or to violent force that is
unreasonable conduct in the circumstances.
Even if you consent to a fight, you cannot consent to the other person using excessive
force to kill you
Individuals are limited in their ability to consent to the intentional infliction of serious
(i.e. non-trivial) bodily harm in the context of, for example, fistfights
R v (DWL)
Facts: The case involved whether an accused man, who was convicted of numerous sexual offences against his
step daughter, was also guilty of bestiality under s.160 of the Code for forced sexual activities between a dog
and his step-daughter that involved a failed attempt at penetration. At trial the defence interpreted bestiality to
include penetration as a requirement but Crown said bestiality exists as long as sexual activity is engaged with
an animal and the judge agreed and convicted. Appeals court said penetration is required and hence, case was
appealed to the SCC.
Issue: Is penetration an essential element of the actus reus of the offence?
Law:
- 160 (1) Every person who commits bestiality is guilty of an indictable offence and liable to imprisonment for a
term not exceeding ten years or is guilty of an offence punishable on summary conviction.
- 174. Every one is guilty of an indictable offence and liable to imprisonment for life who commits buggery,
either with a human being or with any other living creature.
Analysis: Looking at the plain meaning - Oxford dictionary: bestiality includes penetration; Law dictionary –
bestiality’s legal definition refers to sexual activity between human and an animal
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Cromwell J. – In Canada, there can be no liability for common law crimes apart from criminal contempt
of court. As a result, changes to the scope of criminal liability must be made by Parliament and judges
cannot change the elements of crimes in ways that seem to better suit the circumstances of a particular
case. If the Crown’s proposed changes to the elements of bestiality are to be made, they must be made
by Parliament.
The trial judge’s analysis was flawed as no weight was given to the principle that enactments should be
clear and any ambiguity is resolved in favour of the accused. The trial judge did not take into
consideration that the French version of the offence in the Code has remained substantively unchanged
from 1892 to 1988. He reasoned that the courts should interpret the elements of the offence of bestiality
so that they would “reflect current views on what constitutes prohibited sexual acts;” yet, it is not the
role of the courts to expand that definition.
There are important questions of policy involving broadening the offence of bestiality as the Crown
urges us to do. That change, as we see from the trial judge’s reasons, could turn a person such as the
victim in this case into a co-perpetrator.
Overall, applying these principles the term “bestiality” has a well-established legal meaning and refers
to sexual intercourse between a human and an animal.
Abella J. dissents – Any act of sexual exploitation involving an animal constitutes bestiality. When we
look at the offence from today’s perspective for the greater concern of animal cruelty and sexual
exploitation of animals, it makes sense
HOLDING:
- 6-1 decision; Bestiality requires penetration of the animal and hence upheld the appeal court’s decision.
RATIO:
- The courts cannot extend and redefine the definition of a term within a statue that is clearly defined. Any
changes are at the sole discretion of the parliament
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Codification and Certainty in the Criminal Law
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Codification is thought to advance some of the most fundamental values of the criminal law. Many of
these values are captured in the nullum principle, “there must be no crime or punishment except in
accordance with fixed, predetermined law.”
One aspect of this principle is that crimes not be created, or punished on a retroactive basis. This has
been protected in S. 11 (g) and (i) of the Charter
Another value of codification is that the criminal law should be certain
In R v Nova Scotia Pharmaceutical society (1992), the SCC affirmed the existence of void for vagueness
doctrine under the Charter. Gonthier J stated: Vagueness can be raised under section 7 of the Charter,
since it is a principle of Fundamental justice that laws may not be too vague. It can also be raised under
s. 1 of the Charter on the basis that an enactment is too vague as not to satisfy the requirement that a
limitation on Charter rights be “prescribed by law”
The “doctrine of vagueness” is founded on the rule of law, particularly on the principles of fair notice to
citizens and limitation of enforcement discretion
R v Heywood (1994) 3 SCR 761
FACTS:
- This case involved section 179 (1) of the Criminal Code, which provided that it was an offence for a
person with a past sexual violence conviction to be “found loitering in or near a school ground,
playground, public park or bathing area.”
- The BC court of Appeal quashed the conviction of a man with two prior convictions of sexual assault of
young girls after he was “found loitering in or near a playground.”
- He had been found photographing young children at play after a store had alerted the Victoria Police
that he had brought photos of the crotch area of young girls to be developed
ISSUE:
- Is section 179 (1) of the Criminal Code overbroad and vague, is it unconstitutional?
REASON:
- In the case of vagueness, the means are not clearly defined. In the case of overbreadth the means are too
sweeping in relation to the objective
- Overbreadth analysis looks at the means (laws) chosen by the state in relation to its purpose. In
considering whether a legislative provision is overbroad, a court must ask the question: Are those means
necessary to achieve the State Objective?
- Section 179 (1)(b) is overly broad to an extent that it violates the right to liberty proclaimed by section 7
of the Charter for a number of reasons:
1. First, it is overly broad in its geographical scope embracing as it does all public parks and beaches
no matter how remote and devoid of children they may be.
2. Secondly, it is overly broad in its temporal aspect with the prohibition applying for life without any
process for review.
3. Thirdly, it is too broad in the number of persons it encompasses.
4. Fourthly, the prohibitions are put in place and may be enforced without any notice to the accused
- They changed it After with a new section 161 of the CC. Now there are clearly defined geographical
areas, and the prohibition may be for life or a short period and a system of review is provided
DISSENT:
- Justice Gonthier states that the prohibition is not overbroad because the restrictions are directly related
to preventing reoffending. A desire to disrupt the cycle of reoffending justified a minimum intrusion
which does not breach the principles of fundamental justice.
RATIO:
- If the state, in pursuing a legitimate objective, uses means which are broader than necessary to
accomplish that objective, the principles of fundamental justice will be violated because the individual’s
rights to liberty will have been limited for no reason
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If a statue is broad, it could violate the right to liberty under section 7 of the Charter
Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) 2004
FACTS
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Challenge brought forward by Canadian foundation for Children on section 43 of the
Criminal Code
ISSUE
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Is section 43 of the Criminal Code authorizing the use of force “by way of correction
toward a pupil or child”…if the force does not exceed what is “reasonable under the
circumstances” was void because of vagueness or overbreadth?
SOURCES
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Section 43 of the CC: Every schoolteacher, parent or person standing in place of a parent
is justified in using force by way of correction toward a pupil or child, as the case may
be, who is under his care, if the force does not exceed what is reasonable under the
circumstances.
Holding
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Section 43 is NOT vague and it does not violate section 7. She says we could interpret
“by way of correction”, and “reasonable under the circumstance”.
Application
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A law must set and intelligible standard both for the citizens it governs and the officials
who must enforce it. The purpose of section 43 is to delineate a sphere of non-criminal
conduct within the larger realm of common assault. The void for vagueness protection or
standard is an essential feature of the Rule of law and the Nullum principle. It enhances
predictability and certainty. It’s a central feature of equality because vague laws give the
police arbitrary power to enforce the law and it allows judges to give their own
subjective thought on interpreting the law.
Section 43 DOES NOT clearly identify what conduct falls within its sphere. It defines
conduct in two ways:
The first is by the requirement that the force “be way of correction”
Second, that the force be “reasonable under the circumstances”
Taken together do these phrases provide sufficient precision to delineate the zone or risk
and avoid discretionary law enforcement
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Interpreting “reasonable under the circumstances” in this case?
- Justice McLachlin (concurring 7:2 decision) first writes that the law and Criminal Code
has long used reasonableness to delineate areas of risk, without incurring the dangers of
vagueness. They rely on Canada’s international obligations, social Conesus and expert
evidence to conclude that a solid core meaning emerges from “reasonable under the
circumstances,” sufficient to establish a zone in which discipline risks criminal sanction.
Generally, section 43 exempts from criminal sanction only minor corrective force of a
transitionary and trifling nature. It doesn’t apply to corporal punishment of children
under two or teenagers. Degrading and harmful conduct is not protected. Discipline by
the use of objects or blows to the head is unreasonable. It is wrong for law enforcement
officers to apply their own subjective views of what is “reasonable under the
circumstances”; the test is objective.
- In this case, they did not strike down the law but they re-wrote it. Should they have
struck it down, did they go to far?
- Do we really expect parents to read the judgement and go through it with the checklist in
mind? What is the alternative, to strike it down? What if the parliament doesn’t respond?
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***The child says I don’t want to wear a seatbelt, section 43 narrowly provides a
defence but if it doesn’t are we opening the door for the more policing of families. There
is a concern about who will be disproportionately affected by the law. Discretion is not
enforced in a uniform way
Interpreting “By way of correction” in this case:
- What is this? She says that section 43 only applies where a person intends to have a
educative or corrective purpose. The child must be able to benefit from the spanking.
Again, the question becomes where is this coming from? Corrective force must be for
educative purposes and the child must be able to benefit. The court says that section 43
does not apply to children under 2 or over the age of 12, children under 2 are not capable
of correction, so they cannot be spanked because their incapable of learning, as well as
children with intellectual disabilities cannot be spanked as well.
- The court also says that it must be a sober reason of force and cannot justify anger.
Professor doubts any child would be able to find a situation in which they were spanked,
and it was sober and reasonable force instead of anger or frustration.
- Section 43 IS NOT overbroad because does not permit force that cannot correct or is
unreasonable
DISSENT
- S. 43 has been subject to considerable disparity in its application, some courts justifying
conduct that other courts have found unreasonable. Attempts at judicial interpretation
have failed to provide coherent or cogent guidelines that would meet the standard of
notice and specificity generally required in the criminal law.
Ratio
-
-
In sum, s 43 can only be raised as a defence to simple assault where the force was for a
corrective purpose, used only against a child older than two but not over the age of 12,
does not involve objects or blows to the head, and should not relate to the “gravity” of
the conduct (Arbour dissent para 131)
The court held that section 43 was NOT constitutionally vague
The role of the courts when applying defences must be contrasted with the role of courts
when they are called upon to examine the constitutional validity of criminal offences
This case indicated that the changes that would be required to make section 43
constitutional would not constitute reading down or reading in; rather, they would
amount to judicial rewriting of the legislation, as was done in R v Heywood, (1994), and
the 6 points of emphasis are on page 42.
R v PARE (1987 2 SCR: Construction or Interpretation of the CC
FACTS
-
-
On July 13, 1982 the respondent Marc-Andre Pare, then 17 years met Steeve Duranleau, a 7year-old boy. At Pare’s suggestion the two went swimming
After about 15 minutes in the pool Pare offered to take Duranleau to look at some used cars. The
offer was only a pretense. Pare’s real motive was to get Duranleau alone in order to have sexual
relations with him
After looking at some used cars in the parking lot- Pare lured Duranleau under the bridge. D
wanted to leave but pare told him not to and held him by the arm. He sat there for the next 10
mins holding Duranleau by the arm. Then Pare told D to lie on his back and keep quiet and he
layed on top of him and indecently assaulted him
14
-
-
ISSUE
SOURCES
-
After ejaculating beside Duranleau’s penis, Pare sat up and got dressed. When the victim told
Pare he was going to tell his mom about the incident, Pare told him not to or else he will kill him.
After this exchange Pare was certain that the boy would tell his mom so he made him lie on his
back, he waited for two minutes with his hand on D’s chest, and then killed Duranleau by
strangling him with his hands, hitting him on the head several times with an oil filter and
strangling him with a shoe lace
At trial he was found guilty of first degree murder, and at the court of appeal in Quebec his
appeal was also dismissed but they substituted a verdict of second degree murder.
Did Pare murder the child “while committing” the indecent assault? What is the meaning of
“while committing” under section 231 (5)?
Section 231 (5)- murder is first degree murder when death is caused by a person while the person
is committing indecent assault
R v Stevens 1984- court went beyond narrow interpretation of “while committing” and took a
more holistic approach
Rules
- Doctrine of strict Construction requires courts to adopt interpretation most favorable to the
accused (i.e “while committing” requires the unlawful act and the murder be simultaneous)
- Literal meaning of “while committing” is not assistive and would lead to absurd results
- The phrase must be read in context of the scheme
Holding
Application
-
-
APPEAL ALLOWED: Conviction for first degree murder is restored.
The murder was temporally and casually connected to the underlying offence. It formed part of
continuous sequence of events. It was part of the same transaction
The Literal Meaning of Section 214 (5) “While committing”: Case law from R v Kjeldsen
(1980) and R v Sargent indicate that the court did not analyze the meaning of the words “while
committing” in s. 214 (5) but appeared to assume that these words required the underlying
offence and the murder to occur simultaneously. Or that there be a close temporal and causative
link between the two.
Strict Construction of Section 214 (5) “While committing”: Counsel for the respondent argue
that the doctrine of strict construction of criminal statues requires that this court adopt the
interpretation most favourable to the accused. In this case then, the words “while committing”
must be narrowly constructed to where the act has to occur simultaneously
Applying the Doctrine:
- The narrow interpretation (exactly simultaneous approach) of “while committing” is problematic
for two reasons:
1) It is difficult to define the beginning and the end of an indecent assault
2) A strict interpretation would lead to distinctions that are arbitrary and irrational
- The court instead adopts the approach in Stevens, citing Justice Martin:
“where the act causing death and the acts constituting the rape, attempted rape,
indecent assault or an attempt to commit indecent assault, all form part of one
continuous sequence of events forming a single transaction’ the death was caused
while committing an offence for the purposes of section 214 (5) (page 47)
- Single transaction: Is the continuing illegal domination of the victim which gives continuity to
the sequence of events culminating in the murder.
- Given that Pare had murdered the victim only two minutes after the indecent assault the murder
was temporally and casually connected
-
Ratio
-
The organizing principle of s. 214 (5) is that where a murder is committed by someone already
abusing his power by illegally dominating another, the murder should be treated as an
15
exceptionally serious crime. The majority states (Justice Wilson) that Parliament’s intent behind
these offences leads to an interpretation of “a single transaction” making the most sense
Murders committed during other heinous offences should be elevated to 1st degree because they
involve an individual abusing power by illegally dominating another person
-
The Limits of the Criminal Law- Class 4
-
-
-
-
John Stuart Mill in his essay on Liberty, argues that government power ought to be used as sparingly as
possible, leaving as much space as possible for each individual to exercise his or her liberty of thought,
expression and action
In his Essay he also says that the only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to others
This principle by Mills is referred to as the “harm principle”- it distinguishes between the use of
government power to achieve moral ends, which Mill views as illegitimate, and the use of such coercive
power to prevent harm to others- the only permissible use of such force
Mill’s thought has thus formed the basis for the central debate regarding the limits of the criminal lawnamely, whether it is legitimate to use the most extreme and violent tool at the disposal of the state, the
criminal law, to enforce morality or whether criminal laws must always be based on preventing harm to
others
The “Wolfenden Report” concluded that homosexual behaviour between consenting adults in private
should no longer be a criminal offence”
HARM PRINCIPLE
R v Malmo- Levine; R v Caine (2003) SCC 74
Facts
Issue
Sources
Rules
Application/
The appellant Caine argues in particular that it is a violation of the principles of fundamental
justice for Parliament to provide for a term of imprisonment as a sentence for conduct which he
says results in little or no harm to other people. The appellant Malmo-Levine puts in issue the
constitutional validity of the prohibition against possession for the purpose of trafficking in
marijuana.
He tries to challenge the prohibition’s constitutional validity, focusing on using the harm
principle as his main argument for why the prohibition is not constitutionally valid.
Before this case, we did not see the court discussing philosophy about harm and its limit. This
case is about harm and the fundamental principles of Justice. Labaye is about harm and
interpretation of indecency.
Whether parliament has the legislative authority to criminalize simple possession of marijuana,
and if so, whether that power has been exercised in a manner that is contrary to the Canadian
Charter of Rights and Freedoms?
Narcotic Control Act, RSC 1985, c. N-1 (NCA)
1. Was criminalizing the use of marijuana valid under the criminal law power?
-
For a law to be classified as a criminal law, it must posses three prerequisites: a valid
criminal law purpose backed by a prohibition and a penalty. A valid criminal law
purpose extends to those laws that are designed to promote public peace, safety, order,
health or other legitimate public purpose.
16
-
-
The use of marijuana is a proper subject matter for the exercise of criminal law power. If
there is a reasoned apprehension of harm Parliament is entitled to act. The NCA and the
scheduling of marijuana in particular, properly falls within Parliament’s legislative
competence under section 91 (27) of the Constitution Act, 1867
They started by reviewing the possible harms associated with marijuana use by
referencing what the trial judge in Caine found:
The occasional to moderate use of marijuana is not harmful to health, no evidence
demonstrating mental damage to the user, no casual relationship between marijuana use
and criminality, marijuana is not a gateway drug that leads users to try more hardcore
drugs, it does not make people aggressive or violent, health related costs are very small
compared to costs associated with alcohol and tobacco consumption. However, the trial
judge also said that the 50,000 chronic users pose a risk to themselves and a potential
cost to society of marijuana should it chose to do so. Pregnant women and
schizophrenics are also said to be at particular risk. Advancing the protection of these
vulnerable individuals is a policy choice that falls within the broad legislative scope
conferred on Parliament
2. Whether Parliament’s authority to criminalize simple possession of marijuana is contrary
to Section 7 of the Charter of Rights and Freedoms?
- The appellants content that unless the state can establish that the use of marijuana is
harmful to others, the prohibition against simple possession cannot comply with Sec. 7
For any principle to be considered a principle of justice:
1) It must be a legal principle—harm is NOT a legal principle
2) About which there is significant societal consensus that it is fundamental to the way
in which the legal system ought fairly to operate
3) It must be identified with sufficient precision to yield a manageable standard
- The absence of proven harm does not create the unqualified barrier to legislative action
that the appellants suggest. Several crimes such as Cannibalism and Bestiality that do
not cause harm to others are found in the Criminal Code because they are prohibited on
the basis of fundamental social and ethical considerations
- The “harm principle” isn’t a legal principle. It is a MORAL Principle.
- Mill’s Harm Principle (state should only criminalize if there is harm to others): Mills
harm principle rejects paternalism, which is the prohibition of conduct that harms only
the actor and second, it excludes what could be called “moral harm”; majority of court
says harm principle isn’t part of the fundamental justice; court doesn’t agree there is
sufficient societal consensus for the harm principle;
- Court then looks at arbitrary argument: the purpose of the law and the effect of the law;
court rejects that argument
- L
minimum sentence; most offenders receive discharge or summary convictions;
consequences not grossly disproportionate
- A conviction for possession for personal use carries no mandatory minimum sentence
and in practice most first offenders are given a conditional discharge. Important to know
that if prison does result, it could violate section 12 of the Charter (cruel and unusual
punishment)
- *** The mere fact of the availability of imprisonment in a statue dealing with a variety
of prohibited drugs does not, in our view, make the criminalization of possession of a
psychoactive drug like marijuana contrary to the principles of fundamental justice
- The “harm principle” is not a manageable standard against which to measure deprivation
of life, liberty or security of the person
17
-
**The Charter challenges must fail and that the appeals should be dismissed
Lecture Notes
- The court however did not say that harm is not a relevant provision. Gross
disproportionality looks at the harm that Parliament seeks to address and compares it to
the harm that is caused by criminalization, such as the possibility of having a criminal
record.
- The majority said that the criminal record brought upon by simple possession is valid
under criminal law and they said that nobody goes to jail for simple possession, so they
said we are not going to strike down simple possession because of the possibility of
imprisonment on the basis of gross disproportionality
- The lawyers in this case applied a formal equality approach, possibility of a criminal
record and imprisonment. What was necessary was a critical race analysis, thinking
about the impact of the war on drugs and who is more likely to be targeted. Nobody
raises this argument, there was a reference to the historical war on drugs but the court
never thought about gross disproportionality and race
RATIO
Justice Arbour (dissenting in Caine)
- A law that has the potential to convict a person whose conduct causes little or no
reasoned risk of harm to others offends the principles of fundamental justice and, if
imprisonment is available as a penalty, such a law then violates a person’s liberty under
section 7 of the Charter
- The SCC ruled that the harm principle, (specifically harm to others) does not qualify as a
principle of fundamental justice within the meaning of section 7 of the Charter.
Accordingly it is constitutionally open to Parliament to legislate on the basis of morality
alone
- According to Malmo-Levine, harm is not a PFJ and therefore an accused cannot
challenge the criminalization of simple possession (or any offence) on the grounds
that there is not sufficient harm to justify criminalization. Cannot use section 7 to
asses wisdom of parliaments decision to criminalize based on insufficient harm to
warrant criminal label/sanction
R v LABAYE (2005) SCC 80
This case is not about any PFJ’s; its about statutory interpretation
FACTS
- The appellant operated a club in Montreal, called L’Orage and its purpose was to permit
couples and single people to meet each other for group sex.
- Only members were admitted to the club and they paid an annual membership fee in
which they had to be interviewed and were also aware of the nature of the activities of
the club
- The third floor of the club was the “apartment” of the appellant and members of the club
were supplied with the code and this is the only place where group sex took place
- No one was forced to do anything or watch anything. No one was paid for sex.
ISSUE
- Whether the acts committed in his establishment were “acts of indecency” within the
meaning of our criminal law?
- The appellant appeals from a conviction of keeping “a common bawdy-house” for the
“practice of acts of indecency” under S 210 (1) of the Criminal Code
- Has Labaye challenged the harm principle that was ruled out by the majority in the
Mayo-Levine case above? This case addressed a concern that the Malmo-Levine case left
18
open of what role “harm should play when a court is faced with common law task of
interpreting a criminal law.
SOURCES
-
RULES
-
-
-
-
-
Application
-
Section 210 (1) of the CC makes it an offence, to keep a common bawdy house. A bawdy
house is defined in S 197 (1) of the Code as a place kept, occupied, or resorted to “by one
or more persons for the purpose of prostitution or the practice of acts of “indecency”
The CC does not define decency, leaving the task to judges (statutory Interpretation)
The test developed by the cases has evolved from one based largely on subjective
considerations, to one emphasizing the need for objective criteria, based on harm.
We generally convict and imprison people only where it is established beyond a
reasonable doubt that they have violated objectively defined norms. Crimes relating to
public indecency are no exception
The shift to a harm-based rationale was the ruling in R v Butler (1992), in which the
community standard of tolerance was determined by references to the risk of harm
entailed by the conduct
Harm or risk of harm is easier to prove than a community standard. Its also similar to the
vast majority of other criminal law provisions, which are based on the need to protect
society form harm.
***Two step analysis of the Test: Indecent criminal conduct will be established
where the Crown proves beyond a reasonable doubt the following two
requirements:
1. The first step is the nature of the harm. That , by its nature, the conduct at issue
causes harm or presents a significant risk of harm to individuals or society in a way
that undermines or threatens to undermine a value reflected in and thus formally
endorsed through the Constitution or similar fundamental laws by, for example:
a) Harm to those whose autonomy and liberty may be restricted by being confronted
with inappropriate conduct
b) Harm to society by Predisposing other to anti-social behaviour; or
c) Physically or psychologically harming persons involved in the conduct
2. The second step is concerned with the degree of the harm. It asks whether the harm in
its degree is incompatible with the proper functioning of society. Threshold is high.
The question is not what individuals or the community think about the conduct, but
whether permitting it engages a harm that threatens the basic functioning of our
society.
Both elements must be proved beyond a reasonable doubt before acts can be considered
indecent under the CC
Policy made a important contribution to interpret the meaning of indecency. We need to
focus on real tangible harm that is subject to proof. The requirement of formal societal
recognition makes the test objective. .
Indecency has two meanings, one moral and one legal. Our concern is with the legal
definition
1st step of the test: Nature of the harm
a) The sexual acts were conduced on the third floor of a private club behind doors
marked “private,” and was only accessible by members who had the code. The
evidence establishes that a number of steps were taken to ensure that members of the
public who might find the conduct inappropriate did not see the activities, so the
autonomy and liberty of members of the public was not affected by unwanted
confrontation with the sexual conduct in question
b) There was no evidence of the harm of predisposing people to anti-social acts or
attitudes. Everything was in private and consensual. No one was pressured to have
19
-
-
POLICY
sex, paid for sex, or treated as a mere sexual object for the gratification of others. All
participation was on a voluntary and equal basis
c) There is no evidence of physical or psychological harm to persons participating
(problems wih risk of STD”s but not related to indecency)
NO need to proceed to the second branch of the test. Even if we did, there appears to be
no evidence that the alleged harm rose to the level of incompatibility with the proper
functioning of society. Consensual conduct behind code-locked doors can hardly
jeopardize a society as vigorous and tolerant as Canadian society
** Appeal allowed, and conviction has been set aside
On the basis of this, the court said that swinging in the context of this club was NOT
indecent
BASTARACHE AND LEBEL (DISSENTING)
- We propose to continue applying the original test for indecency (community standard of
tolerance), which focuses on a contextual analysis of the impugned acts and incorporates
the concept of harm as significant, but not determinative, factor to consider in
establishing the applicable level of tolerance
- The harm-based test developed in Butler is clear that criminal indecency or obscenity
must rest on actual harm or significant risk of harm to individuals or society. The crown
failed to establish this essential element of the offence and therefore failed.
- In order for conduct to be indecent it must be sufficiently harmful (objectively speaking)
to warrant criminal sanction
- Parliament responds- Bill C-75 (march 29, 2018), (justice committee amended Bill to
repeal common bawdy-house offences (section 210 (1) and 211) & vagrancy offence
(section 197 (1)(a)
R v RDS 1997, SCC
FACTS
-
-
-
RDS who was 15 years old was riding his bike when he saw his cousin being
arrested. Officer claimed RDS ran into him with his bike. RDS testified that
he simply wanted to help his cousin. RDS was charged with a series of
offences, including assaulting a police officer. NR, who was already
handcuffed, and RDS were both put in a choke hold. Police have very strict
regulations on when a choke hold is permissible given that it has sometimes
resulted in serious consequences like death
During Crown submissions, the crown argued that there was no reason for the
officer to lie and RDS was acquitted. Trial judge made a number of impugned
statements
In the course of her judgement the trial judge said:
I am not saying that the Constable has misled the court, although police
officers have been known to do that in the past. I am not saying that the officer
overreacted, but certainly police officers do overreact, particularly when they
are dealing with non-white groups. That to me indicates a state of mind right
there that is questionable. I believe that probably the young police officer in
this case overreacted. I do accept the evidence of RDS that he was told to shut
up or he would be under arrest. It seems to be in keeping with the prevalent
attitude of the day. At any rate, based upon my comments and based upon all
the evidence before the court I have no other choice but to acquit.
20
ISSUE
RULES
APPLICATIO
RATIO
Whether the Judge’s comments in her reasons gave rise to a reasonable
apprehension of bias?
- TEST for finding reasonable apprehension of bias: It is expressed as “a real
danger of bias,” “a real likelihood of bias,” “a reasonable suspicion of bias,”
and in several other ways (the court looks at the impression that would be
given to other people)
THE BIAS ISSUE
Cory 2 and L’Heureux-Dube 4 [6 votes]
o No Reasonable Apprehension of Bias and RDS’ acquittal restored
Cory 2
o Have to look at comments in context
o Did not reach a conclusion on issue
o Comments in response to Crown’s “unfounded suggestion … that a
police officer by virtue of his occupation should be more readily
believed than the accused”
o Had already found RDS to be a credible witness and gave reasons
L’Heureux-Dube 4
o Did not reach a conclusion on issue but even if she had it would have
been appropriate in this case
o It would appear that neither the Major 3 nor Cory 2 would deny that, in
theory, this kind of inductive reasoning was in error
o “The life experience of this trial judge, as with all trial judges, is an
important ingredient in the ability to understand human behavior, to
weigh the evidence, and to determine credibility. It helps in making a
myriad of decisions arising during the course of most trials.”
o “It is of no value, however, in reaching conclusions for which there is
no evidence. … Life experience is not a substitute for evidence. There
was no evidence before the trial judge to support the conclusions she
reached.”
- The L’Heureux-Dube 4 were satisfied that there was an evidentiary foundation
o “…there was evidence capable of supporting a finding of
racially motivated overreaction”
o “As a member of the community, it was open to her to take into
account the well-known presence of racism in that community
and to evaluate the evidence as to what occurred against that
background.”
- Our courts now accept that you could use social context evidence as a lens to
interpret the evidence. However, you cant use social context evidence in of
itself. The reason why the 5 reached the conclusion they did was because of
what they saw in the failing of sufficiency of evidence, they wanted direct
evidence instead of circumstantial/ social context evidence. In this case, the
social context evidence was the over policing of black people in Halifax. The
question is why did he overreact and put RDS into a chokehold and this is
where you could draw upon social context evidence, which could say that
police do overreact when they are dealing with Black and Aboriginal youth.
- We need to recognize that this is how we engage in fact finding and we need
social context evidence to make it more reliable. Our history with wrongful
convictions and mistaken IDs are social context evidence
-
What is social context evidence?
21
R v Le 2019 SCC 34 at para 83
- “To be sure, social context evidence is a type of “social fact” evidence, which
has been defined as “social science research that is used to construct a frame
of reference or background context for deciding factual issues crucial to the
resolution of a particular case” (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R.
458, at para. 57).”
R v RDS at para 123
- “… evidence of [relevant] social conditions ..”
Canada (AG) v Bedford at para 48
- “facts about society at large”
What are some examples of social context evidence from the cases we have read?
- Over-policing of Indigenous and Black communities (R v S(RD))
- Impact of criminalization of prostitution on the safety and lives of sex workers
(Canada (AG) v Bedford)
- Harm caused by spanking to children (Canadian Youth Foundation)
How does social context evidence get before the court?
1. Expert evidence
- Judicial notice (where the judge accepts a fact as true without any evidence
being called – for example, the Supreme Court of Canada accepting in R v
Barton 2019 SCC 33 at para 1 that “[w]e live in a time where myths,
stereotypes, and sexual violence against women — particularly Indigenous
women and sex workers — are tragically common.”)
2. “Brandeis brief” (American term to describe a book of authorities that
includes reports, articles, other types of research about a particular issue)
3. Lived experience of judges:
- Findings of fact based on evidence viewed through the lens of personal
judicial experience and social context IS Acceptable.
RDS GUEST LECTURE October 7th, 2019
Professor Backhouse
-
-
-
Prof said there was race and masculinity written all over this. The officer probably thought to teach these
youth that were standing around a lessen that you do not interfere with the police
Rodney probably thought that I am going to show these groups of kids who were standing around of
how brave I am
When this decision case came out, Backhouse says she was shocked. For hundreds of years, white
judges have been sitting and there were no complaints that they were ever biased. The first black judge
in Canada was said to be racially bias towards white people. For white people, equality of race means
discrimination. How have the white judges decisions escaped racism for so long? Were the white judges
so uncomfortable talking about this that they couldn’t explain their position clearly.
The dissenting opinion would have sent it back for a new trial. They spoke negatively about Judge
Spark’s comments.
22
-
-
The two women on the SCC in this case had been complained about for gender bias, they had faced the
complain that they were bias against men
Rodney has now become a leader in the Black Halifax community. The lawyer, Rocky Jones was also a
legend, and he died in 2013. This case was known as the Apex of Rocky Jones career.
Questions to consider: Why is it so hard to call out white racism in the CJS? Is the concept of objectivity
real? What are we looking for in our judges? How do we access and educate candidates for the bench?
The reason there were no other witnesses is that Black people are intimidated by the police and would
prefer not to be involved
Tanovich Lecture on RDS
-
-
-
How was it in the public interest to prosecute a 15-year boy with 3 serious offences? Why did the officer
need to put RDS in a chokehold, which is higher on the use of force than a taser? Why did nobody talk
about the chokehold?
Its hard talking about this legal issue without engaging in inductive reasoning. The crown wants to rely
on this to argue that the person was involved in the crime. Inductive reasoning fills in the gap, it uses
generalizations about experience and behaviour and what makes it so dangerous is that it is subjective, it
depends on the trier of fact and judges. The issue in White (another case), did he intend to kill the victim
or was it an accidental shooting?
It was a poorly written decision, these judges resisted
The Decision
- For these judges it wasn’t about drawing reasonable inferences, but it was about no evidence. They were
of the view that the only evidence that would count is direct evidence such as referring to RDS with the
N word or some other derogatory term. That is Absurd because how many cases do we have of direct
evidence, very little, most evidence we rely on in proceedings is circumstantial and we ask what is
reasonable to infer? If somebody buys a gun and uses it in a murder, that is not direct evidence, it’s a
piece of circumstantial evidence. Almost every trial that’s what it always comes down to, we rarely have
direct evidence. These judges failed to grasp the importance of circumstantial evidence
Limits of the Criminal Law: Sex Work
Canada (Attorney General) v Bedofrd (2013) SCC 72
FACTS
-
-
-
-
It is not a crime in Canada to sell sex for money. However, it is a crime to keep a bawdyhouse, to live on the avails of prostitution or to communicate in public with respect to a
proposed act of prostitution.
These appeals are not about whether prostitution should be legal or not, they are about
whether the laws Parliament has enacted on how prostitution may be carried out pass
constitutional muster
Three applicants, all current or former prostitutes, brought an application seeking
declarations that the three provisions of the Criminal Code are unconstitutional : Section
210, 212 (1)(j), and 213 (1) (c )
The three appellants, Terri jean Bedord, Amy Lebovitc and Valerie Scott.
23
ISSUE
-
SOURCES
-
-
-
RULES
-
Whether all three provisions of the CC infringe section 7 of the Canadian Charter of
Rights and Freedoms by preventing prostitutes from implementing certain safety
measures- such as hiring security guards or “screening” potential clients that could
protect them from violent acts?
Does section 213 (1)( c) infringe section 2(b) of the Charter, and if so, are the provisions
saved under section 1?
Section 210:makes it an offence to be an inmate of a bawdy-house, to be found in a
bawdy-house without lawful excuse, or to be an owner, landlord, lessor, tenant, occupier
of a place who knowingly permits it to be used as a body house
Section 212 (1)(j): makes it an offence to live on the avails of another’s prostitution
Section 213 (1) (c ): makes it an offence to either stop or attempt to stop, or
communicate or attempt to communicate with, someone in a public place for the purpose
of engaging in prostitution or hiring a prostitute
In this case, the precedent in question is the SCC 1990 advisory opinion in the
Prostitution Reference, which upheld the constitutionality of the prohibitions on bawdy
houses and communicating, two of the three provisions challenged in this case
Section 7 analysis: section 7 provides that the state cannot deny a person’s right to life,
liberty or security of the person, except in accordance with he principles of fundamental
justice. At this stage, the question is whether the impugned laws negatively impact or
limit the applicant’s security of the person, thus engaging section 7 of the Charter?
Application Section 7 Test
1. Is security of the person engaged?
- The SCC justice agrees that section 7 is engaged because the prohibitions at issue do not
merely impose conditions on how prostitutes operate. They go a critical step further, by
imposing dangerous conditions on prostitution; they prevent people engaged in a riskybut legal-activity from taking steps to protect themselves from the risk
- The next step is to evaluate whether this deprivation is with he fundamental
principles of justice. The terms principles of fundamental justice set out the
minimum requirements that a law that negatively impacts on a person’s life, liberty
or security of the person must meet
a) Sections 197 and 210: keeping a common Bawdy House
- The judge found that the safest form of prostitution is working independently from a
fixed location and indoor work is far less dangerous than outdoor work. Since the bawdy
house provisions make the safety-enhancing method of in-call prostitution illegal, the
judge concluded that the bawdy-house prohibition materially increased the risk
prostitutes face under the present regime. Therefore, the bawdy-house provision
negatively impacts the security of the person of prostitutes and engages section 7 of the
Charter
b) Section 212 (1)(j): Living on the Avails of Prostitution
- This makes it a crime for anyone to supply a service to a prostitute, because she is a
prostitute. In effect, it prevents a prostitute from hiring bodyguards, drivers and
receptionists. By denying the prostitutes these security enhancing safeguards, the law
prevented them from taking steps to reduce the risks they face and as such found that the
law engages section 7 of the Charter
24
c) Section 213 (1)(c ): Communicating in a public place
- The law prohibits communication that would allow street prostitutes to increase there
safety. By prohibiting communicating in public for the purpose of prostitution, the law
prevents prostitutes from screening clients and setting terms for the use of condoms or
safe houses. In these ways, it significantly increases the risks they face
- The evidence supports the application judge’s conclusion that section 231 (1)( c )
impacts security of the person and engages section 7
Principles of Fundamental Justice
- In this case, we are concerned with the basic values against arbitrariness (where there
is no connection between the effect and the objective of the law), overbreadth (the
law goes too far and interferes with some conduct that bears no connection to its
objective) and gross disproportionality (when the effect of the law is grossly
disproportionate to its objective).
- Arbitrariness asks whether there is a direct connection between the purpose/objective
of the law and the impugned effect on the individual, in the sense that the effect on the
individual bears some relation to the law’s purpose. There must be a rational connection
between the object of the measure that causes the S.7 deprivation, and the limits it
imposes on life, liberty, or security of the person (In Morgentaler)
- Overbreadth deals with a law that is so broad in scope that it includes some conduct
that bears no relation to its purpose (Applied in Heywood, applied to offenders who did
not constitute danger to children and insofar as it applied to parks where children were
unlikely present, it was unrelated to its objective)
- Gross Disproportionality: When the effect of the law is grossly disproportionate to its
objective (Argued unsuccessfully in Malmo-Levine because the possibility of
imprisonment was rare and the Constitution allows such legislative action)
- Although there is significant overlap between these three principles, they remain three
distinct principles
Do the Impugned Laws Respect the Principles of Fundamental Justice?
a) Section 210: The Bawdy-House Prohibiton
- Objective: It is clear from the legislative record that the purpose of the prohibition is to
prevent community harms in the nature of nuisance. The provision is only directed at incall prostitution and cannot be said to aim at deterring prostitution in general
- Compliance with the principles of fundamental justice: **The negative impact of the
bawdy-house prohibition on the applicant’s security of the person is grossly
disproportionate to its objective. Moving to a bawdy house would improve prostitutes
safety. Balancing this against the evidence that complaints about nuisance arising from
indoor prostitutions are rare, she found that the harmful impact of the provision was
grossly disproportionate to its purpose.
- The court said the objective was trying to regulate Nuisance. The government was trying
to say it was about regulating prostitution, but the court said No. The court said that
criminalizing bawdy houses (the effects were grossly disproportionate to its purpose).
Once you accept that the purpose is nuisance, should we even be criminalizing
nuisance, this is why the court said its grossly disproportionate
b) Section 212 (1)(j): Living on the Avails of Prostitution
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c)
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Objective: The purpose of this provision is top target pimps and the parasitic,
exploitative conduct in which they engage. It targets the person who lives off the
prostitutes earnings, which is termed a pimp.
Compliance with the principles of fundamental justice: The courts concluded that the
living on the avails provision is overbroad insofar as it captures a number of nonexploitative relationships ( for example those who could increase the safety and
security of prostitutes such as managers or bodyguards) which are not connected to
the law’s purpose. It also includes accountants or receptionists.
If you financially benefit from sex work, such as an employer or family member you are
caught under this provision. Its not arbitrary because it prevents pimps from controlling
prostitutes but there are certain relationships that are captured by the offence (such as
drivers, accountants, family members). It is overbroad.
Section 213 (1)( c): Communicating in Public for the Purposes of Prostitution
Objective: The provision is meant to address solicitation in public places and, to that
end, seeks to eradicate the various forms of social nuisance arising from the public
display of the sale of sex. Its means to take prostitution off the streets out of the public
view
Compliance with the principles of fundamental justice: Communication is an essential
tool that that can decrease risk, section 213 (1)(c ) is grossly disproportionate. The
provisions negative impact on the safety and lives of street prostitutes is a grossly
disproportionate response to the possibility of nuisance caused by street prostitution
Do the prohibitions against communicating in public violate section 2(b) of the Charter?
Having concluded that the impugned laws violate section 7, it is unnecessary to consider this
question
Are the infringements justified under Section 1 of the Charter?
The law is therefore not minimally impairing and the impugned laws are not saved by section 1
of the Charter
CONCLUSION
- Appeal dismissed and cross-appeal allowed
- Each of the challenged provisions, considered independently, suffers from constitutional
infirmities that violate the Charter
- Parliaments response was Bill C-36, the protection of Communities and Exploited Persons Act
(section 213 (1.1) and 286.1 to 286.5. the new legislation targets those purchasing sexual
services
Limits: Hate Crime October 28, 2019
R v Keegstra (1930) 3 SCR 697
FACTS
-
The accused, a high school teacher, was accused of promoting hatred against Jews by
teaching students at Eckville Hgih school about an “international Jewish conspiracy” and
that Jews were “sadistic,” “money loving,” “power hungry” and “child killers”
26
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The accused was convicted at trial but the conviction was overturned by the Alberta
Court of Appeal on the grounds that Section 319 (2) and 319 (3)(a) of the CC violated
section 2(b) and 11 (d) of the Charter and were not justified under section 1
ISSUE
-
Whether Section 319 (2) and 319 (3)(a) of the CC violated section 2(b) and 11 (d) of the
Charter and were not justified under section 1?
SOURCES
-
-
Section 319 (2): Every one who, by communicating statements, other than in private
conversation, wilfully promotes hatred against any identifiable group is guilty of an
indictable offence or summary conviction
Section 319 (3)(a): No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true (reverse onus);
Section 2(b): freedom of expression
Section 11(d) of the Charter: Presumption of innocence
-
Section 319 (2) requires that the promotion of hatred be “wilful.”
RULES
Application Majority:
- What is the criminal law purpose? It’s about maintaining social order, protecting
vulnerable groups. Freedom of expression is a counter argument. These are used to asses
then whether Parliament can constitutionally criminalize these conducts
- Its hard to argue about arbitrariness, overbroad, and gross disproportionality in this case,
so section 7 is not violated when we are discussing section 319 (2)
- The first question to think about criminalizing hate is what level of hate is captured?
Hatred is not defined in the Criminal Code, so there needs to be statutory interpretation
- Section 319 is in part 8 of the Criminal Code.
- Section 319 (2) infringes freedom of expression under section 2(b) of the Charter
because it prohibits “communications which convey meaning, namely, those
communications which are intended to promote hatred against identifiable groups” but
was a justified limit under section 1
- In Canada, many Canadians belong to identifiable groups and they are more comfortable
to know that hate will be prosecuted. With this, the community as a whole is reminded
of the importance of diversity and multiculturalism, the value of equality and the worth
and dignity of each human person being particularly emphasized
- Is Section 319 (2) nevertheless overbroad because it captures all public expression
intended to promote hatred?
- They cited Buzzanga for the interpretation of “willful” and Martin J.A said “willful”
means that this mental element is satisfied only where an accused subjectively desires
the promotion of hatred or foresees such consequences as certain or substantially certain
to result from an act done in order to achieve some other purpose.
- Section 319 (2) is not compelling to strike down because:
1) To predicate the limitation of free expression upon proof of actual hatred gives
insufficient attention to the severe psychological trauma suffered by members of
those identifiable groups targeted by the hate propaganda
2) It is clearly difficult to prove a causative link between a specific statement and
hatred of an identifiable group. In fact, to require direct proof of hatred in listeners
would severely debilitate the effectiveness of section 319 (2)
27
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For the Oakes test, is there a pressing and substantial objective behind the provision?
The court then does a three-part sub-test:
o Is there a rational connection between the means chosen (the criminalization of
the potential or foreseeable promotion of hatred) with its objectives? Is the
infringement to the minimum extent possible? What is the balance between the
importance of the infringement or the right of free speech and the benefit
conferred by the legislation?
The disagreement between the majority and dissenting comes down to the mean chosen,
(the criminalization of the potential or foreseeable promotion of hatred ) thinking about
impairment and the degree of impairment, is there proportionality between criminalizing
conduct that violates freedom of expression.
- Its not enough you “negligently, or “recklessly” promote hatred, it has to be “willfully”
which is amongst the highest level of intent. They refer to Buzzanga ( a Windsor case),
the issue was did they “willfully” promote hatred—the court said you have to have a
conscious purpose for the promotion of hatred. In that case the court says if you foresee
that your conduct will lead to the promotion of hatred, you are also guilty. It’s a very
high threshold that you have to meet. The court says that because there is such a high
threshold, the impairment will be minimal and not a lot of people will be convicted
because of this high level of intent required for the offence
- Also, there is a defense available and the police cannot just lay a charge, they have to
consult with the Attorney general, and they have to consent to it. This limits law
enforcement discretion and all these reasons are why the impairment is minimal
- There is an argument about no harm being caused, but the court says that proof of actual
hatred causes severe psychological trauma. They also say Parliament could legislate to
prevent harm
- The majority say it is a pressing and substantial concern and the means chosen are
proportionate to the infringement, so the majority uphold
Section 11(d):
- The reverse onus in the truth defense operates so as to make it more difficult to avoid
conviction where the willful promotion of hatred has been proven beyond a reasonable
doubt. As the willful promotion of hatred is hostile to Parliament’s aim, placing such a
burden upon the accused is rationally connected to a valid section 1 objective
- To include falsity as a component of section 319(2) or even to acquire that the accused
raise a reasonable doubt as to the truthfulness of the statements would compromise the
effectiveness of the offence in achieving its purpose. The first option would hinder
Parliament’s objective as many statements could not be categorized as true/false.
- To accept the possibility of falsity, it would have to be agreed that this small possibility
of truthfulness outweighs the harm caused through the willful promotion of hatred.
- Having the accused prove truthfulness on the balance of probabilities is an
understandable and valued precaution against too easily justifying such harm, and hence
I conclude that the reverse onus provision in section 319(3)(a) represents a minimal
impairment of the presumption of innocence
- The reverse onus, which puts the onus on the accused, violates 11 (d) if there is
reasonable doubt within the jury but still results in a conviction
- For section 2(b) all you have to know is that willful promotion of hatred does trigger the
freedom of expression
28
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The court in a recent case said threats of physical violence is not protected by section
2(b)
DISSENT:
- McLachlin dissented, finding that section 319 (2) infringed section 2(b) and was NOT
justified under section 1 of the Charter.
- Section 319 (2) may well have a chilling effect on defensible expression by law-abiding
citizens. At the same time, it is far from clear whether it provides an effective way of
curbing hatemongers. Many have suggested that it may promote their cause and Zundel
who was prosecuted under (section 181) claimed that his court battle gave him “a
million dollars worth of publicity.”
- The application of the definition of offending speech (the circumstances in which the
offending statements are prohibited) is virtually unlimited. Only private conversations
are exempt.
- In summary, section 319 (2) of the CC catches a broad range of speech and prohibits it
in a broad manner, allowing only private conversations to escape scrutiny.
- **The process by which the prohibition is affected—the criminal law—is the severest
society can impose and is arguably unnecessary given the availability of alternate
remedies. Concludes that the criminalization of hate statements does not impair free
speech to the minimum extent by its objectives
- They also found that section 319 (3)(a) infringed section 11(d) but was not justified
under section 1.
- If the objection is that it is merely difficult to prove the statements true or false, the
answer is that the burden should be on the state because it has superior resources. If the
objection is that it is impossible to know if the statements are true and false, it cannot be
ruled out that the statements may be more valuable than harmful.
- Shes concerned that the threat of criminalization will impair freedom of speech and to
express ideas
Policy
-
The willful promotion of hatred does violate the guarantee of freedom of expression
under 2(b) but these CC provisions are saved under section 1 of the Charter
R v Zundel (1992) 2 SCR 731
FACTS
-
The accused was charged under section 181 of the CC for publishing material denying
the Holocaust. He was convicted and appealed to the SCC
This was a 4-3 decision, the split was on the application of section 1
ISSUE
-
Whether section 181 (a much broader and vaguer class of speech- false statements
deemed likely to injure or cause mischief to any public interest than the Keegstra case)
can be saved under section 1 of the Charter?
SOURCES
-
Section 181: False statements deemed likely to injure or cause mischief to any public
interest
RULES
-
The test is “injury to public interests”
29
Application Majority (McLachlin): APPEAL ALLOWED, ACQUITTAL ENTERED
- Section 181
- This cannot be saved under section 1 of the Charter. To permit the imprisonment, or
even threat of jail, on the ground that a person has made a statement which 12 of their
co-citizens deem to be false and mischievous to some undefined public interest, is to
stifle a wide range of speech, some of which has long been regarded as legitimate and
even beneficial to our society
- They make reference to a shifting purpose doctrine:
o This court has rejected the doctrine of shifting purposes. Although the
application and interpretation of objectives may vary over time, new and
altogether different purposes should not be invented. Section 181 was originally
focused “on the prevention of deliberate slanderous statements against the great
nobles of the realm” and is now said to be concerned with “attacks on religious,
racial, or ethnic minorities.” This is an outright redefinition not only of the
purpose of the prohibition but also of the nature of the activity prohibited. To
convert s 181 into a provision directed at encouraging racial harmony is to go
beyond any permissible shift in emphasis and effectively rewrite the section
o To suggest that the objective of Section 181 is to combat hate propaganda or
racism is to go beyond its history and its wording, and this adopts the :shifting
purpose: analysis that this court has rejected.
o In Bedford, the purpose was to deter nuisance and exploitation to live off the
avails, but the government tried to frame the issue in a way that the court said
they were shifting the purpose. If you wanted to have an interpretation rejected,
you would argue in court that it is a shifting purpose
- Justification under section 1 requires more than the general goal of protection from harm
common to all criminal legislation (as all CC provisions are focused on protecting the
public from harm); it requires a specific purpose so pressing and substantial as to be
capable of overriding the Charter’s guarantees.
- Section 181 fails to meet the pressing concern, and proportionality under section 1. False
news is not associated with any existing problem or legislative objective.
- The broad range of expression caught by S. 181- extending to virtually all controversial
statements of apparent fact which might be argued to be false and likely to do some
mischief to some public interest- combined with the serious consequences of criminality
and imprisonment, makes it impossible to say that S.181 is appropriately measured and
restrained having regard to the evil addressed- that it effects a “minimal impairment” to
use the language of Oakes. Section 181 is materially different, in this regard, from
section 319(2)- the provision upheld under section 1 by the majority of this court in
Keegstra
- The prohibition not only affects those caught and prosecuted, but those who may refrain
from saying what they would like to because of the fear that they will be caught. Should
an activist be prevented from saying “the rainforest of BC is being destroyed” because
she fears criminal prosecution for spreading “false news” in the event that scientists
conclude and a jury accepts that the statement is false and that it is likely to cause
mischief to the BC forest industry?
- Even if the objective was so pressing and substantial, section 181 would still fail to
meet the proportionality criteria. Section 181 not only catches deliberate falsehoods
30
which promote hatred, but sanctions all false assertions which the prosecutor believes
“likely to cause injury or mischief to a public interest”.
- When the objective of S 181 is balanced against its invasive reach, there can, in my
opinion, be only one conclusion: the limitation of freedom of expression is
disproportionate to the objective envisaged
- The section 7 principle of fundamental justice that could be used is overbroad because
the conduct could capture people outside of the intended ones
- Zombie provision (struck down but remained on books for decades)
- Bill c-75: All of these provisions have been removed and section 181 is not in the
criminal code now
DISSENT:
- Cory and Iacobucci in dissent agreed that S 181 violated section 2(b) of the Charter but
held that it was justified under section 1 of the Charter
- They engaged in “statutory interpretation” of the words “public interest,” and they said
that in the contravention of section 181, “public interest” in a free and democratic
society that is subject to the rile of law.
- They said that the “public interest” is about giving effect to the Charter’s guarantees
which strive towards creating a community to equality, liberty and human dignity, so
public interest is about promoting these goals.
- Purpose of S 181: preventing the harmful effects of false speech and thereby promoting
racial and social tolerance. The realities of Canada’s multicultural society emphasize the
vital need to protect minorities and preserve Canada’s mosaic of cultures
In-Class Lecture Notes
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-
-
November 11, we will take up the Richardson case
November 25, distinguishing between true crimes and regulatory offences
Today, we will finish Bedford case
So far this term we have been thinking about boundaries and using the criminal law to address harmful
conduct. The big policy question we have been thinking is whether there should be limits to the
criminal law to regulate harmful conducts through constitutionality and Statutory interpretation
Lets start with the Constitution 91(27)—what limits does it place on Parliament. Quebec challenged the
genetic discrimination act. The limit 91 (27) places is subject matter jurisdiction. Is there a
prohibiton/penalty, but the real issue is what is the purpose. Is there a criminal law purpose—that’s
what limit section 91(27) places. Its very broad jurisdiction, the courts said 91(27) entails a wide
variety of crimes, so what falls under section 91 (27), as long a you could point to morality, peace, the
human good, environment, privacy, morality all these subjects fall under 91 (27).
Section 7 and principles of fundamental justice.
Jobidon was about serious bodily harm, Youth foundation was about using criminal law for corrective
purposes and whether parenst and guardians could use corrective force without being criminalized.
Then we have Mayo-Levine, our first morality based offence, using the criminal law to protect against
harm. The court identified vulnerable groups (pregnant women). In Lab aye, we come to our second
case about morality and indecency. Here we see the court, unlike in these other cases, say there is a high
31
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threshold of harm that the state has to demonstrate in order to be criminalized under the indecency
provision. In Bedford, the focus was on whether the harm caused was rationale to its objective
As we work through these cases, we need to think about what type of harm we are talking about, and
then if this is the type of conduct we want regulated using the criminal law? We first start that there is
no criminal law purpose (cant do this with much success), then you may have to argue that one of the
principles of fundamental justice is violated ( you might have luck ere) and then statutory interpretation,
how is the offence defined and should we take that into account
-
November 11 Lecture
Summary of Part 1 of the Course
- How do all these cases and strands fit together in relation to facts and the law?
First thing we did was we examined the nullum principle (organizing principle of law) and how it
manifests into criminal law. For the exam, define the nullum principle and identify its manifestations.
Second we examined 9(a) of the CC and statutory interpretation as the bread and butter of law. Is the
impugned conduct criminalized by statutoryinterpretation and what conduct is covered by that
provision? We though of SI in many cases, Jobidon, Pare (what’s the meaning of while committing),
Labaye,(is swining indecent). For the exam use SI and give meaning to hypothetical and criminal law
Third, we though a lot about harm. Its been a major part of this term. Criminal law is all about harm,
setting and enforcing boundaries of social conduct. We thought about harm in 5 different conducts. One
of the keys about advocacy is to provide a roadmap. First, w examined harm in the context of section
91(27) and subject matter jurisdiction, the key question was what conduct could Paarliemnt enact with
its criminal alw power, the lead case was the margarine reference, evil and injurious. Malmo-Levine
teaches us that proof of actual harm is not required for 91(27), there just needs to be a reasonable
apprehension of harm. The power of 91(27) is unlimited, so for the exam we need to engage in a 91
(27) analysis for a legislative provision. The second context about harm we thought about is courts
addressing if we should imprison people for the harm causes pursuant to section 91 (27), the court in
Malmo-Levine said No that’s Parliament’s job to decide what falls under 91 (27). Once the conduct
falls under this section, the court said you can’t come to a court and challenge under section 7 to say
that the harm is not harmful enough. For the exam, we need to analyze and apply this legal conclusion.
Thirdly, we have analyzed assessing harm not based of section 7 but based on Statutory interpretation,
we seen this with respect to keeping a common bawdy house and indecency (the labaye case), for the
exam we need to define the threshold of harm defined in Labaye and how it might be applicable in
other cases. Fourth, we have the means of addressing how Parliament has framed the criminal law, so
for the exam we need to define the principles of fundamental justice (overbreath, vauguness,
proportionality). Fifth, the harm causes by criminalization and whether its sufficient to strike down
criminal law. We did this in three cases, Labaye (the SCC identified harm with a community standards
tolerance test for decidijng whether or not the act is indecent, the court said given this test of harm,
there was ahigh threshold of harm to protect the minorities. The high threshold was based on evidence.
The court said there is harm caused to sexual minoroites by criminalzing indecency so we need to come
up with a different test. We also looked at another case called, under section 7 it had to be grossly
disportoptionate which is a high threshold, the third case was Keegstra and Hundell and we asked if the
harm to freedom of expression is reasonable (in this case it was a reasonable limit). We see it in
different ways in these 3 cases (statutory interpretation, section 7, section 1). Look at the Bedford case
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Genetic Non-discrimination Act
- When a law is challenged, the Ag of Canada is arguing to uphold it, they have an ethical obligation to
advance arguments but in this case, the AG was on the other side. This was a private members bill that
originated in the senate in 2017 and the entire liberal cabinet voted against it.
- Is this a true crime (does it fall under 91(27), does it have a criminal law purpose, what harm is it
seeking to address or is it just for insurance companies. The government did not appear as the appellant,
the Quebec court said it doesn’t fall under section 91(27), its under 92(13).
- What is the criminal law purpose (in the video), does it fall under the margarine reference?
- The court in Keegstra says on page 115, the existence of a particular criminal law in the process of
holding a trial when the criminal law is used
- Making racism a crime does fall under 91 (27). Parliament could, but that begs the question if this is the
appropriate way of dealing with racism. How would overbreadth and gross disproportionality come into
play. Suppose the prof asked a TA who he wanted to hire to take a genetic test as a condition of
employment and that TA was a member of a visible minority group, there is no rational link to the job
so why else is he asking. If you link into the broader social context of stereotypes of genetic inferiority,
the social context evidence provides a good reason of why you are administrating the test. What other
logical explanation is there, was profs request made on racial/ cultural bias? Bring this back to RDS,
why would an officer put a 15 year black boy in a chokehold given the long history of mispolciign the
black community in Halifax and anti-black racism. It leads a strong evidence for inference to be drawn.
The most reasonable explanation for the profs action is that he is acting out of bias
R v Richardson (1903)
- Oliver Richardson, white farmer charged with murdering his black neighbour Edmund Matthews (black
farmer)
- Wrongful acquittals are trouble for a defence lawyer because of the crowns proof of beyond a
reasonable doubt. Racial bias results in a wrongful conviction (where stereotypes lead jurors to accept
highly unlikely plausible events). In the Stanley case, it was white farmers vs an Indigenous man.
- In 1953 we seen major revision of the Criminal Code, that’s when they abolished common law
offences. In 1985, there were serious revisions as well as 1996
- The crown had to prove that he meant to cause death or meaning to cause bodily harm that is likely to
cause death
- Richardson was charged with murder, the crown had to prove that when he shot him, he did it with the
intent to kill him or with the intent to cause bodily harm likely to result in death. If the crown couldn’t
prove intent, he would be charged with manslaughter unless he could prove self defence
- First of all this was a local essex county case. Blacks made up 1/3 of Colchester’s population.
- This case was in 1903, so one question is how much has changed with racial minority experiences
within the CJS? In Richardson, there was some accountability as there was manslaughter but in the
Stanley case it was acquittal. If he shot the man 5 times, was there not intent to kill him? The defence
lawyer tries to argue that this case has nothing to do with race, if we look at how the trial judge
instructed the jury at page 188 of the excerpt, he told them that if there was intention but no proof of
pre-meditation then it is manslaughter. However, this was not the law as we outlined above. Why did
the trial judge say this when this wasn’t the law?
- In Stanley, it was an all white jury, the defence lawyer did everything in his power to remove an
indigenous representation. In this case we had a black lawyer as part of the prosecution.
33
Criminal Law Tutorial- Week 4
Bedford, Keegstra & Zundel
A.G v Bedford case
FACTS:
- They were challenging the legality of Section 210, 212 (1)(j), and 213 (1) (c ). They were challenging
these provisions on the basis that they violated section 7 of the Charter.
ISSUE:
- Are these above sections constitutional according to section 7
Section 7 test (need to know the 2 step test in this case)
1. Has the applicant established that the law in question imposes limits on the life, liberty or security of the
person?
- Has section 7 been engaged
The court said yes, because the 3 sections above engage the security of section 7 because it prevents
them from hiring security guards, a driver and screening their calls.
2. If so, are the limits on life, liberty, or security of the person in accordance with the principles of
fundamental justice?
- Arbitariness ( there is no connection between the purpose and goal of the law and its effect). Gross
disproportinaility (in which the law goes too far and there is no connection with its objective).
Overbreadth (the law interferes with conduct that doesn’t have connection with)
- For section 210 (an offence to be an inmate in a common bawdy house). They looked at the objective,
it was to combat neighbourhood disruption and stop nuisance in the street but they find that the effect of
the law, by not allowing sex workers to implement safety measures is grossly disproportionate.
- Section 212 (1)(j) is punishing everyone who lives off the avails of a sex worker. It is overbroad and
captures people that should be beneficial to bodyguards and accountants, so it goes too far and violates
a fundamental principles of justice
- Section 213 is communicating in the streets. It is grossly disproportionate
- Are the limits on section 7 reasonable and valid?
-
If the limits are in accordance with the principles of fundamental justice- the law validly limits your
section 7 rights ( s. 7 infringement is allowed)
If the limits are not in accordance with PFJs, there is a section 7 violation
PART II- Race and Criminal Justice
R v Marshall- The wrongful conviction of Donald Marshal Jr
FACTS
-
Donald Marshal Junior was convicted of murder by a judge in 1971. He appealed his
conviction to the Nova Scotia Supreme Court, Appealette Division in 1972 where his
conviction was upheld
34
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-
-
ISSUE
SOURCES
In 1983 his appeal was overturned by the same appeal court after a new appeal was
ordered by the Minister of Justice after Marshall applied under a procedure then used
which was known as applying for the mercy of the Crown
The present procedure is applying to the Minister of Justice when a person’s appeals
have been exhausted, and the ability of the minister of justice to order a new trial or
appeal if “there is reasonable basis to conclude that a miscarriage of justice likely
occurred
According to the appellant Marshall, at the time of the attack, the man with the knife said
he did not like Niggers or Indians. The appellant is an Indian while the deceased was a
negro
Grounds of appeal relied on by the appellant: NSSC 1972
1. That the learned trial judge erred in law in not adequately instructing the jury on the
defence evidence, and in expressing opinions which were highly prejudicial to the
accused
2. That the learned trial judge misdirected the jury on the meaning of reasonable doubt;
that the evidence did not establish guilt beyond a reasonable doubt, the conviction
was against the weight of evidence and was perverse
3. That the trial judge did not make proper inquiry as to both Practico and Chant, the
witnesses whether they understood the nature of an oath
4. The appellant contends that when the jury was absent, the Crown prosecutor was
permitted, while Chant was on the witness stand, to read the evidence he gave at the
preliminary hearing, thereby conditioning him for the evidence he would give when
the jury would return, this being highly improper and prejudicial to the appellant
5. The trial judge advised the jury their verdict was limited to “guilty” or “not guilty” of
murder and they did not consider a verdict of manslaughter
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Application
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Section 696.3(3)(ii), if the federal minister of justice is satisfied “that there is a
reasonable basis to conclude” that a miscarriage of justice likely occurred” can order a
new appeal or trial in order to consider new evidence not heard at trial
1972 Decision
Issue 1: The judge did not adequately instruct the jury on the defence evidence and the
theory of the defense.
Issue 2: Judge used words “satisfied” and “to your satisfaction” and this was
misdirection. Further he did not instruct the jury that if the evidence created a reasonable
doubt, this would entitle them to acquit the accused.
 The court concluded that jury were not misled as to the proper application of the
law regarding the “burden of proof”
Issue 3: No good reason to interfere with the judges finding that he was satisfied both
Pratico, aged 16 and Chant, aged 15, understood the nature of an oath, and they were
sworn without objection by the defense
The day before Marshall’s trial, Pratico told several people that Marshal did not stab
Seale and when Pratico did testify the judge prevented Marshall’s defense lawyers from
asking Pratico to explain why he had made this statement. The crown prosecutor did ask
him and he said he made this statement because “he was scared for his life”
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Issue 4: Chant was read his testimony given at the preliminary hearing on two or more
occasions. After both readings Chant testified that he had seen Marshall stab Seale
 The court of appeal said this was allowed because the prosecutor was alleging
that his witness, Chant, had made a prior statement inconsistent with hi sorigianl
testimony under section 9(2) of the Canada Evidence Act
Issue 5: The defense here was complete denial and even though there is evidence that
Seale put up his fists, to stab him goes to far beyond the right of self-defense
This was the only point that the appeal court said the trial judge erred in
1983 Appeal
James MacNeil indicated that Roy Ebsary, who was about 60 years old was the one who
killed Seale.
The new evidence even if much is not believed makes it impossible for a jury to avoid
having a reasonable doubt as to whether the appellant had been proved to have killed
Seale. He could not have been guilty for the murder of Sandy Seale
The court took the alternative course directed by Section 613(2)(a) and direct that a
judgement if acquittal be entered in favor of the appellant
The court said Mr Marshall continued to lie about the robbery and the assault and his
untruthfulness through the whole affair contributed in large measure to his conviction.
Royal Commision on the Donald Marshall Jr Prosecution (1989)
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The CIS failed DMJ at virtually every stage. The miscarriage of justice could have been
prevented or at least corrected very quickly if those involved in the system had carried
out their duties in a professional or competent manner
The commission concluded that DMJ was not to blame for his own conviction and that
the miscarriage of justice against him was real
The police Investigation: Sergant MacIntyre took Pratico, an unstable teenager, to a
murder scene, offered the youth his own version of events and then persuaded the teen to
accept that version as the basis for what became Pratico’s detailed and incriminating
statement
The trial process: In order for a person to be convicted of murder, a jury must decide
unanimously that the evidence establishes the person’s guilt beyond a reasonable doubt
The purpose of a criminal prosecution is not to obtain a criminal conviction it is to lay
before a judge or jury what the Crown considered to be credible evidence relevant to
what is alleged to be a crime
The Crown Prosecutor: The witnesses were juveniles who gave conflicting statements.
The CP should have used these sessions to find out why they had made earlier
conflicting statements. He not only did not make the necessary effort to find out the
reasons for those conflicting statements but he also did not disclose the existence of
those earlier statements to Marshall’s defense counsel. His failure to discharge this
obligation was a contributing factor leading to DMJ’s wrongful conviction
The Defense Counsel: They let DMJ down. They did not interview any of the Crown’s
witnesses and did not ask the Crown to disclose the existence of statements or the details
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of the case against their client. The commission concludes that the fact that Marshall
was a native did influence the lawyers
The trial judge: Numerous serious errors may have had an effect on the verdict and the
commission concludes that Marshall did not receive a fair trial. Judge failed to consider
why Pratico lied at the preliminary hearing. The Appeal courts represent the final
opportunity to make sure the law is properly applied according to accepted principles, so
these courts must ensure that justice is done. When counsel fails, the courts must step in.
The commission believes an independent review mechanism needs to be established to
deal with allegations of wrongful convictions. The review mechanism must be
independent so that those with information will be willing to come forward and if it is
determined that someone has been wrongfully convicted and imprisoned, they
recommend a judicial inquiry to consider any claim for compensation
Racism and the color of a persons skin should NOT influence the CJS. Commission
wants the AG to adopt and publicize a Policy on Race Relations
Lecture- November 18th
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Section 696 is the only route available for someone who believes they are wrongfully convicted and
want the minister of justice to look at their conviction. It’s a high threshold, first of all your appeals
have to be exhausted and they key is you have to be able to point to fresh evidence that undermines the
accuracy of your conviction. In this case, the fresh evidence was available from Jim Mcneil who was
with the real killer at the time.
This decision was troubling because one of the panelists was the AG of Nova Scotia at the time of the
trial so there was a conflict of interest. It was also troubling because the CA blamed Marshall for
contributing to his conviction, he is portrayed as a thief even there was no evidence. He was acquitted
in 1982 and it took three trials. The first decision was a hung jury, the verdit has to be unanimous and
all 12 jurors have to disagree but not all 12 in this case did. Jurors don’t have to always agree to the
route of their decision. At the 2nd trial, Ebsary was convicted and successfully appealed. At his third
trial, he was convicted of manslaughter (jury has a doubt whether stabbing was intentional as a means
to cause bodily harm or death). Ebsary was sentenced to 3 years, the maximum sentence for
manslaughter is life-7 parole ineligibility for 7 years and there is no minimum for manslaughter. Ebsary
appealed his manslaughter conviction and he was then sentenced to for 1 year.
The Royal Commission looked at the wrongful conviction and they issued there report in 1990.
Racism played a Signiant role in the wrongful conviction. The court characterised it as a robbery and it
played a role in Roy Ebsarys trial as he said he was self-defending against the wrongful conviction.
Years later, Marshall was also wrongfully charged for a fishing offence and it went all the way to the
SCC and this was the second time he was acquitted from a wrongful conviction.
Let’s examine what happened in the case. What protections are there against wrongful convictions in a
criminal trial and how did they fail Marshall?
1. One of the most important safeguards in our system starts with he police, we expect the police to act
in a respectful competent manner. They are supposed to uncover all relevant evidence to the
criminal offence in question. When we look at wrongful convictions, we see in every case the
problem of tunnel vision (where the police have reason to believe someone has committed a crime
and the investigation comes of trying to prove the hypothesis and the tunnel vision is where they
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become so focused that they are right that they completely ignore evidence that disproves their
hypothesis and we see this in almost every wrongful conviction case).
2. Then we have the Crown and the ethical obligation of the Crown. We refer to the Crown as a
Minister of Justice because there role is not to seek a conviction but to lay out all the evidence so
the trier of fact could come to a decision. Its not about winning but Crown are humans too and they
become adversarial. Today ethical obligations of the crown is that they are supposed to provide the
defence lawyers with all the evidence they have. The disclosure lets the accused exercise their right
to full answer and defence. Stinchcombe case is the case that said you have to disclose all evidence.
This failed in the case because the defence did not have exculpatory evidence. The other ethical
obligation of the crown is screening. Did the crown perform this obligation?
3. All defence layers have an ethical obligation on defence to provide competent representation. They
have to purse all viable options for defence and they play a critical role at trial to know the law and
object against evidence. These were senior experienced criminal lawyers. The Crown witness gave
a statement to the police so why did the defence not interview these witnesses to asses their
credibility. This is one of the few tools we have to reconstruct a historical event with limited
resources. There was no objection to stop the Crown from referring to Marshals tattoo that said I
hate police, this had an effect on the jury’s perception of Marhsall
4. Jury selection. We have a constitutional right to a jury for an offence in which the penalty is higher
than 5 years. Here we had a all white jury, no question about the apprehension of racial bias
5. Trial judges obligation to properly instruct the jury on evidence. At the end of the trial, the trial
judge has to give a charge to the jury, where they will summarize the facts, some of the key
concepts of our CJS such as the presumption of innocence, they define reasonable doubt and state
the law. The trier of fact could only convict where they are satisfied when proof is beyond a
reasonable doubt which is closer to absolute certainty than probability. It is a very high threshold
and is a vital protector of wrongful conviction
6. Appeal process. Section 686(1)(b)(3) is a crowns best friend. In this case both the trial lawyers and
appeal lawyers did a poor job.
The failures in the Donald Marshall case applied
1. The sergant concluded that the incident occurred as the result of an argument and made his decision
early that Marshall was the prime suspect. Here what stuck out was that a guilty person does not
stick around the crime scene and get help. If somebody acts with a manner of innocence this is a
very powerful peace of evidence. He could have fled the scene after the crime, but he called 911 and
took police to the crime scene. Never speak to the police, you have a constitutional right to remain
silent. Theres nothing you could say to the police that will help you especially for racialized and
ethnic minoroity communities. All DMJ’s conduct was inline with an innocent persons conduct and
tunnel vision from Sergant Macintyre prevented him from looking at this. There’s a heightened
chance that tunnel vision will occur when race and stereotypes govern how police identify the
suspect is. Stereotypes lead to selective inattention. In Stanley, no reasonable person would accept
the hang fire defence. This selective inattention explains why there is so many mistakes being made
when indigenous and black people are involved. Selective inattention also impacted the tunnel
vision shown by the Crown and defence lawyers.
There was no attempt by Macintyre to locate the 2 men involved that Marshall identified, no autopsies
were performed. Macintyre created the incriminating evidence against Marshall, so the police
investigation was significantly flawed
PART III- Principles of Criminal Liability
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Distinguishing True Crimes & Regulatory Offences
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For true crime offence, there must be something more than proof of the criminal act in order to justify
punishment. In other words, there must usually be proof of some guilty state of mind. So these are
offences in which mens rea consisting of some positive state of mind such as intent, knowledge, or
recklessness, must be proven by the prosecution either as an inference from the nature of the act
committed or by additional evidence
For regulatory or public welfare offences, the Crown is not held to such a high standard. Liability for
regulatory of public welfare offences may be satisfied by proof of the act requirement, accompanied by
no further fault requirement (ALO) or a much reduced fault requriememnt (referred to as strict
liability).
Where the offence is one of strict liability, the Crown is required to prove neither mens rea nor
negligence; conviction may follow merely upon proof beyond a reasonable doubt of the act. However,
it is open to the defendant to avoid liability by proving on a balance of probabilities that all due care
was taken. This is the hallmark of the strict liability offence: the defence of due diligence.
R v Beaver (1957) public welfare or true criminal offences?
FACTS:
- Both Beaver brothers had possession and sold a gram of heroin contrary to section 4(1) of the Opium
and Narcotic Drug Act
- They were convicted for both possession and selling and the judge found them to be habitual criminals
and they each got 7 years imprisonment on each count, the sentences to run concurrently. They spent
the rest of there life in jail.
- Max beaver died, and in 1957 Louis Beaver argued to the SCC that he thought it was sugar and milk
that he was selling to the undercover officer ( and not heroine) and this mattered because he didn’t have
the knowledge requirement that he was selling a controlled substance.
- The court had to establish whether if it is a regulatory offence or a true crime offence?
ISSUE:
- What type of offence was this based on liability?
- This was an absolute liability offence because once you could prove they are in the possession of drugs
and they sold the drug, that will result in conviction. They were convicted and sentenced for 7 years
1. Is the Controlled Drug and Substance Act regulatory or are they true crimes?
2. Is Absolute liability sufficient fault element?
ISSUE 1
- The majority concluded that the regulation of Narcotics is a true crime under section 91(27). If not
under criminal law, it might be able to fall under trade and commerce power. It might be able to fall
under Peace, Order and Good Government as well.
- The majority says its true crime and how they distinguished between a true crime and a regulatory
offence, one of the things they looked at is the nature of the conduct, is the sale lawful? They bring in
the example of selling sound meat as this is to ensure that a lawful trade should be carried on in a
manner not to endanger the public health, whereas a statue that makes it a serious crime to posses or sell
narcotics forbids altogether conduct regarded as harmful in itself. Justice Cartwright says drugs are
unlawful activity.
- Branding something as criminal is filled with stigma and this is a differentiating feature between true
crimes and regulatory offence.
- The other differentiating factor is mandatory minimums, severe punishment indicated that it was not a
regulatory offence but a true crime.
- Whether it is a true crime or a regulatory offence is only a issue with federal statues because the
provinces cannot enact true crime, so every offence created by province is a regulatory offence.
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Moving something out of the criminal code (such as misleading advertising which used to be in the
Code) and moving it into the Competition Act, that’s good indication that it’s a regulatory offence
Why does it matter?
One reason is the fault element, so what does the state have to prove?
The majority agreed that it is silent in terms of fault and knowledge. Beaver created an element of
subjective fault for true crimes. Where the statue is SILENT, for true crimes we begin with a
presumption of subjective fault, which is proof that the accused knew or acted with deliberate ignorance
(if you walk out of the law school and somebody in a orange jumpsuit sells you a TV for $10) then your
deliberately ignorant.
Did Beaver know that it was heroine or did he believe it was sugar and milk?
The majority says the crown has to prove that he knew ( in terms of the possession charge) it was
heroin, it was a true crime and presumption of subjective fault. The famous classic line is that the crown
must prove knowledge of the character of the forbidden substance. The essence of the crime is that you
know the activity your engaging in is forbidden or illegal. The harm caused is the fact that you are
engaging in activity involving a forbidden substance. The only time your mistake of the nature of the
substance will come into play is sentencing. In terms of the actual offence, it doesn’t matter. As long as
the person knew or was deliberately ignorant, so in this case the selling charge under 4(1)d) was still
upheld.
For true crimes, we have a presumption of subjective fault.
Beaver held it out to be heroine which makes the definition of trafficking, so he is still guilty of the
selling charge
Beaver is still good law today, all true crimes require subjective fault or deliberate ignorance
R v Sault Ste Marie (1978) 2 SCR 1299
FACTS:
- The city of Sault St Marie was charged for depositing materials into Cannon Creek under section
32(1)of the OWRA which states that every municipality or person that discharges deposits is guilty of
an offence and on summary conviction is liable on first conviction to a fine of not more than &5000
and imprisonment or fine for any subsequent offences
- There has been an attempt to seek a middle position, fulfilling the goals of public welfare offences
while still not punishing the entirely blameless. There is an increasing stream of authority which holds
that where an offence does not require full men’s rea, it is nevertheless a good defence for the defendant
to prove that he was not negligent.
HOLDING:
- True Crime offences: offences in which means rea consisting of some positive state of mind such as
intent, knowledge, or recklessness, must be proven by the prosecution either as an inference from the
nature of the act committed or by additional evidence
- Strict Liability Offences: offences in which there is no necessity for the Crown to prove the existence
of men’s rea, the doing of the prohibited act prima facie imports the offence. This leaves it open for the
accused to avoid liability by proving that he took all reasonable care (due diligence). Involves
consideration of what a reasonable man would have done in the circumstances. This defence will be
available if the accused reasonably belived in a mistaken set of facts which, if true, would render the act
or omission innocent, or if he took all reasonable steps to avoid the particular event.
- Absolute Liability Offences : where it is not open to the accused to exculpate himself by showing that
he was free of fault (requires clear legislative intent. The prohibited act is sufficient.
- Our focus is on the presumption of strict liability for regulatory offences. We know from the start
this is a regulatory offences because it is a provincial offence as the charge was laid under section 32(1)
of the Ontario Water Resources Act, 1970.
- Absolute liability is just proof of the act, which results in an offence
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Strict liability is the crown proves the actus resus (the prohibited act beyond a reasonable doubt) and
the accused could prove on a balance of probabilities that they took all reasonable care. So for SLO,
there is a reverse onus. Did you exercise due diligence and take all the reasonable steps to prevent
harm?
Regulatory offences are either absolute liability offences or strict liability offences. How do you know
which it is? Because for regulatory offences, there is a presumption of strict liability offences. You have
to look at the statue and nature of the language, what is the nature of the subject matter (is it harmful
conduct or a minor violation). The more serious the penalty the more you could argue that it is ALO.
If they said “everyone who knowingly,” it cant be ALO, because there is a fault element.
If the punishment is only a fine, section 7 liberty could not be raised.
Re BC Motor Vehicle Act
ISSUE:
- IS the ALO of driving while license suspended under the BC motor vehicle act consistent with the
Charter
- The court said imprisonment without the chance of a defence was the fundamental principle of justice
being violated here. The morally innocent not be punished is what comes out of the BC Motor Vehicle
Act.
- You CAN NOT have imprisonment and ALO.
- Principle of fundamental justice under section 7 that you cannot imprison the morally blameless
(defined as someone who doesn’t have a guilty mind)
- No absolute liability for offences (criminal or regulator) that have imprisonment as an available
punishment. The section was struck down
- Principles of fundamental justice are not rights, they are qualifies to the right under section 7 and
section 8-14 in the Charter are examples of what would violate the principles of fundamental justice
- Imprisonment requires a guilty mind (re-expressed in Wholesale Travel)
- BC then re-introduced the legislation, said its fine and they removed the prison sentence
- Imprisonment triggers section 7. If you want to use imprisonment as your sanction, it has to be strict
liability or full men’s rea.
Example of Section 84 in class of wheel flying off car
- It is a ALO, a defence of due diligence is not available. There is also no imprisonment.
- Is section 7 engaged for this offence because of the lack of due diligence offence available?
- Section 7 says we will only regulate if there is an opportunity for imprisonment. As long as there’s no
possibility of imprisonment, there’s no judicial review. This is kind of a negative aspect of the Charter
Practice Hypothetical
- Start with the Index at the back, look at the key words. If you go to human trafficking in the index it
says see trafficking in person. Just type the provision, you wouldn’t have to copy the exact offence and
you get
- Section 279.01 (1)
- S 286.3(1)
- 286.4- advertising sexual services.
- Look at section 2 of the CC which is the definition section for help.
- When you read the question, try and think of what it is asking you.
Statutory interpretation question.
- Section 279.01 (1) Go through it, apply the facts to the statue. Identify what words need to be
interpreted. For example, you might ask what did X do to recruit the complainant. Look at section 2 and
see if there is a definition for recruit, human trafficking is under part 8 and there are definitions layed
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out at the front. There is no definition in section 2 or part 8 of recruit. The court will read the langaue
in its plain and ordinary meaning. You could say the court would turn to a dictionary or engage in a
plain reading. You could then come up with your answer. After that you could talk about exploitation,
go to section 2 and relate it to the R v Heywood case where you could say that the court interpreted it as
criminal indecency so in this case and write about how the sources they used, talk about r v Parew,
“while committing” they would need to interpret exploitation in the criminal manner.’
When engaging in SI. Look at section 2 of the CC, the definition section of the part where the offence is
found and above and below where the specific offence is
If you look at section 279. 04, there is a definition for exploitation.
Section 286.3 is procuring. What does procuring mean
Question 3: Consent is irrelevant because Section 279.01 (2). You could maybe tie it in with Jobidon
case, consent is irrelevant to this type of activity. You could then say there is no consent provision for
the other 2 offences
Question 4: Section 286.5(1) will only grant immunity under the offence in relation to the advertisement
of their own sexual services
Mock Exam
What is the Nullum principle and what are its manifestations?
- The Nullum principle states that Criminal law must be fixed and certain to set out an identifiable zone of
risk. One of the ways we give effect to Nullum Principle is section 9(a) of the CC as have a prohibition
against common law offences. A common law offence is an offence that a judge or court decides should
be an offence. In Canada we do not have common law offences. There’s a lot of unpredictability if we
let judges decide what is a criminal offence because people will not know what laws to follow then.
Criminal law must not be vague or overbroad. If its vague, its not going to fulfill its function, nobody
will understand it. If it is overbroad, we will capture conduct that does not create a risk of harm.
Criminal law cannot be retroactive. Section 11 (g) and (i)of the Charter.
Systemic and Overt Discrimination in Marshall Case
The Donald Marshall case was a troubling case because it was discovered that racism existed from the start of
the police investigation throughout the whole trial and every key player and insituition within the CJS was
influenced by racial bias. One of the most important safeguards in our system starts with the police as society
expects the police to act in a respectful competent manner. The police are supposed to uincover all relevant
evidence to the criminal offence in question. The Sergant MacinTyre concluded that the incident occurred as a
result of an argument and made his decision Early that Marshall was the prime suspect. It was systemically
overt because he came to his decision based on the overwhelming exculpatory evidence. All of DMJ’s conduct
was inline with an innocent person’s conduct and tunnel vision from Sergeant prevented him from looking at
this. Race played a huge role in the police response in this case, as there was no attempt by Macintyre to locate
the 2 men involved that Marshall identified, no autopsies were performed and Macintyre created the
incriminating evidence against Marshall, so the police investigation was significantly flawed. What should have
stuck around to MacinTrye is that a guilty person does not stick around the crime scene and get help.
The Crown is referred to as a Minister of Justice because there role is not to seek a conviction but to lay out
all the evidence so the trier of fact could come to a decision. Today ethical obligations of the Crown sis that
they are supposed to provide the defence lawyers with all the evidence they have. The disclosure of the
evidence lets the accused exercise their right to full answer and defence. The Crown did not interview the
witnesses to determine any inconsistencies, they should have disclosed the inconsistency of the witness
statements. The defence was aware of these statements but did not request them. The evidence the Crown has
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in its possession in this case illustrates why the Crown must discharge this obligation to disclose. If defence
counsel had been armed with prior inconsistent statements by Chant and Pratico, they could have used them to
raise at least a reasonable doubt about Marshall’s guilt in the minds of the jury. Macneil (the Crown) had an
obligation prior to the PI to disclose to the defence counsel the contents of the inconsistent statements given by
Chant and Pratico. His failure to discharge this obligation was a contributing factor leading to DMJ’s wrongful
conviction.
DMJ”s defence counsel were Rosenblum and Khattar who were both experienced. They did not interview
any of the witnesses for the Crown and they also did not ask the Crown to disclose the existence of statements
or the details of the case against their client. They were aware that Chant and Pratico had given statements to
the police, but they did not attempt to obtain those statements. A court worker said that Rosenblum did not work
as hard for Native clients. The fact that Marshall was a Native with no person resources did influence
Rosenblum and Khattar, so Marshall’s race did influence the defence provided to him.
Section 4 is a regulatory offence,(first thing to answer is whether it is a regulatory offence or a true crime).
(After you state it is a regulatory offence, write it is a Strict liability offence). Strict liability is an offence in
which the Crown proves the actus Reus (the prohibited act beyond a reasonable doubt) and the accused could
prove on a balance of probabilities that they took all reasonable care. So for SLO offences there is a reverse
onus on the accused who has violated a regulation to prove that they exercised due diligence and took all the
reasonable steps to prevent the harm from occurring, For regulatory offences such as this one enacted by the
government, there is a presumption of strict liability (R v Sault st Marie). In this case, there is imprisonment
attached as a penalty and the BC Motor vehicle case tells us that the availability of imprisonment as a
punishment means that an offence is a SLO because with an ALO offence you could not have prison as a
punishment and section 7 of the Charter could be raised when prison is used because it triggers liberty.
TAKEUP in CLASS: Look at the language, they have taken away religious exemption. The legislature is
making it mandatory for in schools and private schools. Think about what is the intent of the legislature. In
thinking of whether there is a due diligence offence, what would it look like. In SI it might be ALO but the
Charter comes in and says that it cant be ALO. Write it looks like ALO when you look at the language,
legislative intent, and the crown has to prove the actus reus (that she failed to immunize the child) and she on a
balance of probabilities has to prove (that she obtained a statement of medical exemption).
TAKE-UP:This question asks of all the legal arguments we did this semester, which has the greatest?
Arbitrariness (a g government says we are going o change the sex ed curriculum and instead we are going to
force you to vaccinate your children and if you don’t it will result in imprisonment. The primary purpose was to
deal with measles, that was the purpose and they throw in HPV which is arbitrary and has nothing to do with
measles (shifting purpose in Zundel). They threw in HPV because thye do not want to fund education. Another
arbitrary argument is that they removed the religious exemption in the contrary of any sufficient evidence.
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