Canadian Criminal Law (January 2019) (1) The Sources of Criminal Law

Overview (Ch 1, Roach)

I. Sources of Criminal Law
 Three sources of Criminal law in Canada;
o (1) the Constitution (including the Charter)
o (2) statutes enacted by legislatures
 Criminal Code
 Controlled Drugs and Substances Act
o (3) judge-made common law
 defences that have not been codified in the Code
 common law presumption of fault
 Hierarchy of the Sources
o the Constitution is the supreme source (prevail over statute & CL)
 ex. Court can strike down an offence in the Code that violate the Charter
o Statutes prevail over common law
 Ex. Parliament can create legislation that abolishes a common law defence (must also comply
with Charter)
 Court play an important role;
o (a) shaping the common law
o (b) interpreting the Constitution
 Emerging source of criminal law  international law
o Parliament creates offences to fulfill its obligations under international law ie. crimes of terrorism, war crimes,
hate propaganda and torture.
o Courts make reference to international law to guide interpretation of Charter, statutes & CL.
 CL defences are allowed (CL can deeply influence interpretation of statutory criminal offences --mental element
o Ex. officially enduced error (Levis (City) v Tetrault)
o Ex. entrapment (R v Mack)

The Prohibited Act (Ch 3, Roach)

I. Codification of the Criminal Act
 The prohibited act (actus reus)  matter of statutory interpretation
o A person must do something that is prohibited by a valid statue;
 No person shall be convicted of an offence at common law except contempt of court (s9)
 Criminal offences should be clear, certain and should pre-exist the act being prosecuted
o Now protected by the Constitution;
 A person must be informed without unreasonable delay of the specific offence charged (s11(a))
 A person is protected against the burden of retroactive laws (s11(i))
 A person can only be convicted of an act or omission that at the time it was committed was illegal
under Canadian or international law (s11(g))
 Criminal sanction that are so vague and overbroad are prohibited, as they do not provide fair notice
to the person (s7)
Frey v Fedoruk
[1950] SCR 517
 Facts;
o Frey was caught looking in a window by Fedoruk and Stone
 Fedoruk chased Frey and police proceeded to seize him
o Fedoruk was convicted at criminal trial
 The action was overturned on appeal
o Frey filed a civil suit for wrongful imprisonment
 Fedoruk argued that the actions were justified because Frey ‘breached the peace’
 Fedoruk fought for the decision of the trial judge in the criminal case, stating that convicting Frey
for an offense should be based on the criminal responsibility of common law to apply generic
principles to the facts of a case
 Issues;
o (1) Is the conduct of a plaintiff enough to constitute a criminal offense?
o (2) Can the court create common law offences?
 Nb. there was no common law history of ‘peeping tom’ offense (not in Code until 1953)
 Ratio;
o (1) the imprisonment was not justified, as there was no proof that Frey had done anything illegal
o (2) the decision of what is lawful is up to Parliament, not the Court.

 Reasoning;

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Canadian Criminal Law (January 2019) (1) The Sources of Criminal Law
o Conduct being used as a predictor of potential for criminal behaviour encroaches on fundamental rights and
freedoms
 Could lead to conduct constituting criminal behaviour, such as adultery or insulting another person.
o Justice John Robert Cartwright, the majority of the SCC said “without evidence that a “peeping tom” is attacking,
a violent response would simply be revenge”
o NB: Parliament subsequently enacted a new crime of loitering and prowling at night on the property of another
person near a dwelling house CC s.177.
R v Jobidon
(1991), 66 CCC (3d)
 Facts;
o J killed a man (Haggard) during a fistfight outside a bar.
o The men fought inside the bar, were kicked out and continued fighting outside
o H was bigger and a trained boxer
o J landed one punch that directly hit H in the face, knocked him unconscious and he fell on the hood of a car
 J continued to hit H repeatedly in the head
 H was in a coma and died in hospital
o J argued that he did not know that H was unconscious when he continued to hit him (it all happened so fast)
o Both men consented to the fistfight
o J was charged with manslaughter, through assault
 J was acquitted at trial, and convicted upon appeal
 Issues;
o (1) is absence of consent a material element that must be provided by the Crown in all cases of assault?
 Ratio;
o (1) A person cannot consent to death, or to violent force that is unreasonable conduct in the circumstances
(guilty of manslaughter)
 cannot consent to an assault that intentionally causes ‘serious hurt or non-trivial bodily harm…in
the court of a fist fight or brawl’ & a minor could not consent to an adult’s intentional application
of force or where serious harm is intended/caused BUT can consent to schoolyard scuffles where
serious harm is NOT intended or caused.
 even if a person consents to a fight, they cannot consent to the other person using excessive force
the kill them.
 Reasoning;
o J argued that assault is not applicable, as both parties consented to the fights & assault must lack consent
 This was NOT accepted by the court
o Court (Gonthier) said that assault must be interpreted in light of common law
 The crime of assault was codified verbatim from common law
 Principle of CL that it would be against public policy to allow fighting with the intent to cause
bodily harm to be legal  bodily harm was itself illegal, consent to fighting could not be a valid
defence.
 Subsequent cases make clear that this case requires serious harm both intended and caused for
consent to be vitiated.
 The court indicates consent would not be negated if the bodily harm was trivial or an accepted part
of socially valued activity such as sports.
o Dissenting (Sopinka J)
 The rule interfered with Parliament’s decision to make ‘lack of consent’ a requirement for an
assault and allowed judges to use the common law to expand the breadth of the offence of assault.
 The majority is attempting to create a new offence that does not exist in the Code by apply the
common law (intentional application of force with consent of a victim)
 However, in dissent, agrees there was no consent, because what started as a consensual fistfight
became a severe beating resulting in death.