CRIMINAL LAW – FALL 2006, Boyle (Roach, Healy, Trotter, 2004)© 2006, Scott Bernstein

CONTENTS

I. Sources of Criminal Law 3

A. Charter 3

B. Criminal Code 4

1. Background 4

2. Indictable v. Summary Conviction Offences 4

C. Judge-made law 5

1. Background 5

2. Limits on judicial law-making 5

Frey v. Fedoruk (1950 SCC) – cannot create common law offence 5

Amato v. The Queen (1982 SCC) – common law defences are okay 5

3. What can judges do? 6

Jobidon v. The Queen (1991 SCC) – common law meaning of ‘consent’ 6

Canadian Foundation for Youth – does provision violate the charter for vagueness? 6

R. v. Heywood (1994 SCC) – is law overly too vague or broad? 6

R. v. Goulis (1981 Ont. CA) – interpretation of words 6

R. v. Pare (1987 SCC) – interpreting words 7

II. Criminal law and indigenous peoples 7

A. The imposition of the law on indigenous peoples 7

R. v. Marshall [1999] 3 S.C.R. 456 – aboriginal treaty rights 7

R. v. Powley [2003] S.C.J. No. 43 – recognition of aboriginal right 7

R .v. Marshall: R. v. Bernard (2005) 336 N.R. 22 – generous views of aboriginal practice 7

1. Background 8

B. Criminalization of aboriginal practices 8

1. Protection 8

Royal Commission Report on Donald Marshall’s Prosecution – failure of criminal justice system 8

III. Elements of Criminal Proceedings 9

A. Trials and Appeals 9

B. Criminal pleadings 9

C. Proof at trial 9

1. Burden or Onus of Proof 9

Woolmington v. D.P.P. (1935 House of Lords, AC) – “one golden thread is always to be seen” 9

R. v. Whyte (1988 SCC) – occupying driver’s seat = care and control of motor vehicle 10

R. v. Downey (1992 SCC) – is reverse onus justified by s.1? 10

R. v. Oakes (1986 SCC) – leading case for justification under s.1 10

2. Oakes Test 11

D. Presumptions 11

Standard or Quantum of Proof 11

R. v. Lifchus (1997 SCC) – the meaning of “reasonable doubt” 11

R. v. Starr (2000 SCC) – applies Lifchus 11

E. Process at trial 12

F. Appeals, etc. 12

G. Judicial Interim Release (Bail) 12

R. v. Bray (1983 Ont. CA) – reverse onus in denying bail in some cases 12

R. v. Pugley (1982 NSCA) – example of reverse onus; was a just cause to deny bail 12

R. v. Pearson (1992 SCC) – special cases justify reverse onus & are constitutional 12

R. v. Morales (1992 SCC) – examination of “public interest” and “public safety” criterion 12

R. v. Hall (2002 SCC) – constitutionality of s.515(10)(c) – “on any other just cause” 13

1. Steps in determining bail issues 13

IV. Elements of Offences 14

A. Components: 14

B. Different types of offences: 14

C. Crimes of subjective fault 14

D. Causation 15

Smithers v. The Queen (1978 SCC) – thin skull rule in causation 15

R. v. Cribben (1994 Ont. CA) – accused’s act must be substantial and integral 15

R. v. Nette (2001, SCC) – test must be “significant contributing cause” 16

1. Factual and legal cause 16

2. What do we know about the test for legal cause? 16

3. Examples 16

4. When does an intervening cause break the chain of causation? 17

R. v. Menezes (2002 Ont. SC) – intervening cause breaks chain 17

R. v. Reid & Stratton (2003 NSCA) – intervening cause breaks chain 17

E. Voluntariness 17

R. v. Ruzic (2001 SCC) – can’t convince an accused who was not acting voluntarily 17

1. Concepts 18

2. What is the difference between an involuntariness defence and a mens rea argument? 18

F. Contemporaneity 18

Fagan v. Commissioner of Metropolitan Police (1969 Q.B. CA) – continuing act approach to continuity 18

R. v. Miller (1982 UK CA) – does common sense make your omission wrong? 18

R. v. Frizzell (1993 BCCA) – contemporaneous events 19

G. Acts/Omissions/Status 19

Moore v. The Queen (1979 SCC) – duty to identify oneself 19

R. v. Thornton (1991 Ont. CA) – common law duties in criminal offences 19

1. Omissions 19

2. Duty to act 20

3. Status 20

R. v. Terrence (1983 SCC) – possession means knowledge and consent 20

I. Sources of Criminal Law

A. Charter

  1. Background
  2. British North America Act wasn’t fundamental statement of rights
  3. Constitution was mostly about separation of powers between Federal and Provincial Legislature
  4. ultra vires – “outside the powers”
  5. e.g. Switzman v. Elbling (p.14) – communism and padlocked house
  6. SCC says “pith and substance” is criminal law
  7. e.g. R v. Morgentaler (p.15) – NS tried to ban abortion
  8. Nova Scotia regulation is ultra vires because criminal law
  9. Provinces can create “quasi-criminal” statutes, though, as long as they don’t reflect regulating moral behavior.
  10. Bill of Rights (1960) = federal statute
  11. Has protection for property (which Charter doesn’t)
  12. Didn’t apply to provinces
  13. Applied to legislation, not actions (like police searching)
  14. Part of Constitution Act, 1982
  15. Constitutional challenge doesn’t have to apply only to legislation
  16. It applies to both federal and provincial law
  17. It talks in terms of rights rather than laws and applies to state officials.
  18. Provides remedies for breach
  19. Courts take a more active role in its application – clearer direction of judging legislation (judicial activism debate?).
  20. S. 52 of constitution says Constitution is supreme law of Canada
  21. Substance relevant to Criminal Law
  22. S1 Rights and freedoms have reasonable limits prescribed by law
  23. S2 Fundamental freedoms (conscience and religion, etc.)
  24. Legal Rights (7-14)
  25. S7 Life, liberty and security of person
  26. S8 No unreasonable search and seizure
  27. S9 No arbitrary detention or imprisonment
  28. S10 Right to counsel
  29. S11 Right to speedy trial, presumption of innocence, no double-jeopardy,
  30. S15 Equality under the law
  31. S24 Enforcement of guaranteed rights and freedoms
  32. S33 Notwithstanding clause = Parliament can pass laws notwithstanding rights in Charter for five years

d.  Constitutional argument

  1. Is there a violation of rights?
  2. Is it saved by S1 (i.e. are the limits reasonable and can be justified in a free and democratic society)?
  3. If not, what remedy?

B. Criminal Code

1. Background

  1. Not technically a real CODE (a comprehensive set of rules governing every aspect of the law) it is just a vast collection of statutes with many gaps. One must turn to case law when the Criminal Code falls short.
  2. Table of concordance – translates statutes 1970 to 1985 system
  3. Interpretation Act
  4. p 995 Enactments should be deemed remedial
  5. Some sections do not create an offence
  6. S.217 = duty of persons undertaking acts
  7. S.219 = Criminal Negligence
  8. These clarify or define certain terms/circumstances which hold relevance in other sections
  9. Judges cannot create common law offences (see S. 9)
  10. Exception is contempt of court
  11. In a way, this would create a new offense
  12. Common law defenses exist (S. 8(3))
  13. Rule of retroactivity
  14. Can’t apply a law which hadn’t before existed after the offence

2. Indictable v. Summary Conviction Offences

  1. Difference matters for all parts of process, from arrest to inquiry to mode of trial, sentencing
  2. Crown’s responsibility in making choice
  3. Seriousness
  4. Whether crown wants a jury
  5. Length of trial
  6. Defense counsel to ∆
  7. Money (jury trials expensive)
  8. Speed of trial
  9. Preliminary inquiry only in jury trial
  10. Concern about prejudicial evidence – juries won’t hear it
  11. Complexity of case
  12. Sympathetic jury
  13. Type of offences

a.  Indictable

  1. Serious (compare to felony)
  2. More elaborate procedure
  3. Three types of indictable offence
  4. Exclusive Jurisdiction (S. 469)
  5. Supreme Court has jurisdiction (normally judge+jury)
  6. Reserved for most serious crimes
  7. Most elaborate procedure
  8. Absolute Jurisdiction (S. 553)
  9. Provincial Court has jurisdiction
  10. Used for lesser, minor offences

3.  Elective

  1. Bulk of cases fall here, in the middle
  2. Choices
  3. S.C. Judge and Jury
  4. S.C. Judge
  5. Provincial Court Judge

b.  Summary

  1. Minor offences (compare to misdemeanor)
  2. Shorter procedures

c.  Hybrid

  1. Can be prosecuted either indictable or summary
  2. Crown gets to decide which

C. Judge-made law

1. Background

A.  Focus on judge made law/case law/common law (compare common law v. statute/civil law/equity).

B.  Even though there is a Criminal Code in Canada, there is still lots of room for judge-made law dealing with such matters as:

  1. Legislative gaps (e.g. causation)
  2. common law defences, such as intoxication – example in Amato, p. 19 (RHT), re entrapment
  3. sentencing in part
  4. interpretation and application of statutes and Charter.

2. Limits on judicial law-making

Frey v. Fedoruk (1950 SCC) – cannot create common law offence

·  π was accused of being a peeping tom; was a common law offence, but was this criminal?

·  Cannot create a new offence that’s not in the criminal code – would be punished for something not warned of in advance

·  This was decided even before s.9

·  Now, though, there’s the offence of voyeurism in s.162

Amato v. The Queen (1982 SCC) – common law defences are okay

·  Estey J. interpreted s. 8(3) to allow common law defence of entrapment. Also notes common law defences of duress, due diligence, necessity

A.  Legislative limits

1.  Judges cannot create new offences – s.9.

2.  But, judges can create common law defences - s.8(3).

B.  Philosophical limits

i.  More subtly, there are judicial limits on judicial law-making, although these are more a matter of judicial philosophy and debate. There are differing views, conservative/progressive, and activist/focus on precedent.

1.  Two distinct views of judging underlying Amato and Frey v. Fedoruk.

ii.  The limits placed on judicial law-making by judicial philosophy are relatively unstable.

iii.  Not only does legal doctrine change through judicial decision-making - even underlying views of the judicial role can change, and this can deeply affect the criminal law. Even individual judges do not necessarily stick to a consistent restrained or activist stance in their judicial careers. Decisions can be affected by various values, e.g. personal autonomy in the Childs case discussed in Orientation.

C.  Constitutional limits

i.  Many examples. It seems unlikely, for example, that judges would hold that the defence of entrapment is not available to people of colour as this would be inconsistent with s.15 of the Charter. Judges must respect constitutional values in their decision-making.

3. What can judges do?

Jobidon v. The Queen (1991 SCC) – common law meaning of ‘consent’

·  Uses common law to interpret meaning of consent in assault (filling a legislative gap)

·  Dissent argued against using common law to negate element required by statute

·  Also example of contrasting judicial philosophies

Canadian Foundation for Youth – does provision violate the charter for vagueness?

·  Was s.43 vague? Authorized use of force against a child as correction.

·  A law is unconstitutionally vague if it does not provide an adequate basis for legal debate and analysis, does not sufficiently delineate any area of risk, or is not intelligible

·  Majority found it didn’t violate ss. 2,15 of the charter.

·  Dissent finds “reasonable under the circumstances” to be vague and in violation of charter

R. v. Heywood (1994 SCC) – is law overly too vague or broad?

·  Looked at s.179(1)(b), which prohibited someone convicted of sexual violence to be “found loitering in or near a school ground, playground, public park or bathing area”

·  “If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated…”

·  Even if law is clear and not vague, they could be overly broad.

·  Found to be overly broad and violates s.7 Charter rights.

R. v. Goulis (1981 Ont. CA) – interpretation of words

·  ∆ had 1173 pairs of shoes. Didn’t disclose them to creditors. Was this “concealing”?

·  Court used ordinary dictionary meaning: Where a word in a statute has >1 meaning, could use either or both meanings in interpretation.

·  Look at word in context of statute: “removes, conceals or disposes” à means a positive act

·  Finds this wasn’t concealment as per Criminal Code section.

R. v. Pare (1987 SCC) – interpreting words

·  ∆ indecently assaulted and murdered a kid two minutes later

·  What is the meaning of “while committing”? Looked at literal meaning and then in context of CC

·  Both offences involve unlawful domination of others, and are a “single transaction”; temporally and causally related events

A.  Fill legislative gaps

B.  Interpret legislative concepts – see Jobidon, Canadian Foundation for Youth

a.  Does the majority judgment resembles legislating more than judging?

C.  They decide whether legislation is consistent with the Charter.

ii.  See Heywood

iii.  In so doing they interpret constitutional concepts, e.g. S.7. Offences are fundamentally unjust if they are too vague. Offences are fundamentally unjust if they are overbroad. Offences (contempt of court) do not need to be codified to be fundamentally just.)

D.  Some conventional guides that influence decisions:

iv.  legislative history, legislative context - surroundings might help, dictionaries, case law, including cases from other jurisdictions, legislative purpose/policy (sense of social problem), implications of arguments - sense of workability, debates, text books, ordinary meaning, knowledge of the world (judicial notice in evidence), others?

E.  Strict construction à where there is confusion, should be interpreted in favour of accused

II. Criminal law and indigenous peoples

A. The imposition of the law on indigenous peoples

R. v. Marshall [1999] 3 S.C.R. 456 – aboriginal treaty rights

·  ∆ and companion fishing for eels.

·  ∆ argued treaty right to fish for eels based on 1760-61 treaties– was successful

R. v. Powley [2003] S.C.J. No. 43 – recognition of aboriginal right

·  ∆ and son charged with unlawfully hunting moose without licence (under ON Game and Fish Act)

·  Claimed aboriginal right under s. 36 of Charter à infringed by Act

·  Acquital upheld by unanimous SCC; recognized Metis abor. rights to hunt. Powley is very narrow decision though à need to prove a site-specific community that has existed since before the imposition of European control