1976CanLIIDocs14 PDF

COMMENTS
1976 CanLIIDocs 14
COMMENTAIRES
SALE OF GOODS-NATURE AND EXTENT OF IMPLIED WARRANTY

-RELEVANCE OF TIME ]FACTOR.-Decisions on section 12(2)
(implied undertaking as to title) of the Sale of Goods Act 1893
are so rare' as to deserve some special note and discussion on
their occurrence and before their dispatch to the footnotes of
the textbooks . The recent decision of the English Court of
Appeal in Microbeads AC and another v. Vinhurst Road
Markings Ltd2 is one such decision -unusual in that it arose
out of the particular retrospective operation of certain provisions
of the English Patents and Designs Act 1949,3 historic in that it
was the first time after eighty-one years that a particular provision
of the 1893 Act was the subject of full consideration by an
English superior court, and yet ironic in that this, "first" should
happen one year after the section had been amended by the
English Parliament by the Supply of Goods , (Implied Terms)
Act 1973 .4
Between January and April 1970, the defendants, an English
company, bought certain road-marking machines and accessories
from the plaintiffs, a Swiss company. Part of the purchase price
was left unpaid . The defendants used the machines, found them
to be unsatisfactory and refused to pay the balance of the price.
1 56 & 57 Vict., c. 71 . See Montforts v . Marsden (1895), 12 R.P .C.

266 ; ldiblett v . Confectioners' Materials Co. Ltd, [1921] 3 K .B . 387 ;
Rowland v . Divall, [1923] 2 K .B . 500 ; Mason v. Burningham, [1949]
2 K .B . 545 ; and Lloyd's and Scottish Finance, Ltd v . Modern Cars and
Caravans (Kingston), Ltd, [1966] 1 Q .B . 764.
2 [19751 1 All E.R . 529 .
3 12 & 13 Geo. 6, c. 62 .
4 1973, c . 13 . And, therefore, perhaps surprisingly, this recent decision
of the English Court of Appeal may have greater (if not at least equal)
significance and relevance in Canada than in England .
618 THE CANADIAN BAR REVIEW [VOL . LIV
In November 1970, the plaintiffs sued the defendants for the

balance and the defendants put in the defence that the machines
were not reasonably fit for the purpose of marking roads. Later,
in 1972, another English company, Prismo Univer3al Ltd, which
owned an English patent relating to road-marking apparatus,
sought an injunction against the defendants to prevent the use
of the machines (supplied by the plaintiffs) arguing that the
machines infringed their patent . Thereupon the defendants
amended their defence (in the action with the plaintiffs) setting
up the infringement as a defence and counterclaim. The trial of
1976 CanLIIDocs 14
a preliminary issues was ordered on the question whether the
defendants had been in breach of contract by virtue of section
12(l) or section 12(2) 6 of the 1893 Act, 7 having particular
regard to the dates of filing and publication of the specification
and of the grant of the patent . On the facts, the sale took place
(and the property in the goods passed) not merely before the
On 18th December 1973, Mars-Jones J. directed that judgment should

be entered for the plaintiffs in the preliminary issue and declared that
there had been no breach of contract on the part of the plaintiffs under
either s. 12(1) or s. 12(2) of the 1893 Act having regard to the dates of
filing and publication of the complete specification and of the grant of
the letters patent to Prismo Universal Ltd.
a S. 12 has been reproduced by all the original common law prov-
inces or territories of Canada in legislation corresponding to the Imperial
Sale of Goods Act, 1893 . See the Sale of Goods Act, Alta, R.S .A ., 1970,
c. 328, s. 15 ; B.C ., R.S .B .C ., 1960, c. 344, as am ., s. 18 ; Man., R.S .M.,
1970, c. S-10, as am ., s. 14 ; R.O .N .W .T ., 1974, c. S-2, s. 14 ; P.E.I .,
R.S .P .E .I., 1974, c. S-1, s. 14 ; Sask ., R.S .S ., 1965, c. 388, as am ., s. 14;
Yukon, R.O .Y ., 1974, c. S-1, s. 14 ; N.B ., R.S .N .B ., 1973, c. S-1, s. 13 ;
Nfld, R.S . Nfld, 1970, c. 341, s. 13 ; Ont., R.S .O ., 1970, c. 421, s. 13 .
On the Canadian case law relating to the statutory obligations in s. 12,
see generally G.H .L . Fridman, Sale of Goods in Canada (1973), pp . 97-115 .
7 S. 12 of the 1893 Act was repealed by the Supply of Goods (Implied
Terms) Act 1973, supra, footnote 4, and a new s. 12 substituted as follows:
"(i) In every contract of sale, other than one to which subsection (2) of
this section applies, there is -
(a) an implied condition on the part of the seller that in the case of a sale
he has a right to sell the goods, and in the case of an agreement to
sell, he will have a right to sell the goods at the time when the
property is to pass ; and
(b) an implied warranty that the goods are free, and will remain free until
the time when the property is to pass, from any charge or encumbrance
not disclosed or known to the buyer before the contract is made and
that the buyer will enjoy quiet possession of the goods except so far as
it may be disturbed by the owner or other person entitled to the benefit
of any charge or encumbrance so disclosed or known.
(2) In a contract of sale, in the case of which there appears from the
contract or is to be inferred from the circumstances of the contract an
19761 Comments 619
patent was granted$ but even before the complete specification

was published." The defendants had known nothing of the
patent and had taken the machines in good faith.l° The English
Court of Appeal held that there was no breach, of the implied
condition (that the seller has a right to sell the goods) in section
12(l) because a perfectly good title had been given at the time
of the sale. But there was a breach of the implied warranty (that
the buyer shall have and enjoy quiet possession of the goods) in
section 12(2) which applied not merely at the time of sale but
in futuro . In reaching this decision the court (consisting of Lord
1976 CanLIIDocs 14
Kenning 16/1.8., Roskill L.J., and Sir John Pennycuick) considered
the relationship between section 12(1) and section 12(2),- the
nature and extent of the implied warranty in section 12(2), and
the relevance of the time factor to section 12.
A certain amount of difficulty" seems always to have sur-
rounded section 12(2) and the necessity for its very existence
intention that the seller should transfer only such title as he or a third
person may have, there is-
(a) an implied warranty that all charges or encumbrances known to the
seller and not known to the buyer have been disclosed to the buyer
before the contract is made; and
(b) an implied warranty that neither-
(i) the seller, nor
(ii) in the case where the parties to the contract intend that the
seller should transfer only such title as a third person may have,
that person; nor
(iii) anyone claiming through or under the seller or that third person
otherwise than under a charge or encumbrance disclosed or
known to the buyer before the contract is made;
will disturb the buyer's quiet possession of the goods."
s A patentee is entitled to commence proceedings for infringement
as soon as the patent has been granted (but not before) . S. 13(4) of
Patents Act 1949, supra, footnote 3.
9 After the date of publication of the complete specification and until
the granting of the patent, the applicant has the like privileges and rights
as if the patent had been granted on the date of publication of the com
plete specification but cannot commence proceedings for infringement until
the patent has been granted . Once granted, the patentee can commence
infringement proceedings. But no proceedings can be taken in respect of
an infringement committed before the date of the publication of the
complete specification . Ss 13(4) and 22 of Patents Act 1949, ibid.
io Quare had they known, whether their knowledge would have consti-
tuted "circumstances" to exclude the operation of s. 12 or, at least, have
affected the quantum of damages?
li P. S. Atiyah notes that "the scope of s. 12(2) is not entirely clear".
Sale of Goods (5th ed., 1975), p. 55 . Fridman makes a similar comment,
op. cit., footnote 6, p. 112 .
620 LA REVUE DU BARREAU CANADIEN [VOL . LIV
has been questioned .12 Previous decisions have tended to show the
close relationship between section 12(1) and section 12(2)
and have doubted whether there could be a breach of section 12(2)
without a breach of section 12 (1) as to title."' The English Court
of Appeal in Microbeads unanimously rejected the contention that
section 12(2) was in any way dependent on section 12(l) whilst
acknowledging that in many cases liability under both subsections
would co-exist. Roskill L.J. set out the differences."- The under-
lying purposes of the two subsections are not the same : section
12(l) deals primarily"-5 with questions of defect of title at the
1976 CanLIIDocs 14
time of sale ; section 12(2) deals with the problem where, although
a good title was passed to the buyer, there is for some reason
some subsequent interference with the buyer's right to quiet
possession. The remedies for breach of section 12(l) and section
12(2) are different : breach of section 12(1) gives a right to
repudiate,"6 to recover any purchase price paid, and to claim
damages (if suffered) ; breach of section 12(2) gives only a
remedy in damages. Further, the extent of the remedy in damages
"2 Atiyah comments : "It is not easy to see what additional rights this
confers on the buyer over and above those conferred by s. 12(1)", op . cit.,
ibid ., p. 54 . The editors of Crossley Vaines' Personal Property (5th ed .,
1973), p. 346, consider that "this warranty, though not entirely without
practical effect, is for the most part rendered unnecessary by the condition
as to title implied in s. 12(l)" . But for a case where s. 12(2) assisted a
p'aintiff who could not rely on s. 12(1) see Lloyd's and Scottish Finance,
Ltd v. Modern Cars and Caravans (Kingston), Ltd, supra, footnote 1 .
"s Montforts v . Marsden, supra, footnote 1, was overruled by Niblett v.
Confectioners' Materials Co . Ltd, supra, footnote 1 . The High Court of
Australia has held that the implied warranty in s. 12(2) covers the
situation where, there being no breach of s. 12(1), there has been a
tortious seizure of goods from a buyer by a seller . See Healing (Sales) Pty
Ltd v. Inglis Electric Pty Ltd (1968), 42 A.L.J .R . 280.
"a Supra, footnote 2, p. 535 . A further difference may be that s. 12(2)
can be excluded by expression of contrary intention. It is doubtful whether
s. 12(1) can be . See, infra, footnotes 40-43.
"5 It is clear that the "right to sell" in s. 12 (1) goes further than the
power to pass the property in the goods. See Niblett v. Confectioners'
Materials Co . Ltd, supra, footnote 1, where the English Court of Appeal
held that a buyer did not have the right to sell goods whose labels infringed
an established trademark. Niblett received approval and adoption by the
Supreme Court of Ontario in Egekvist Bakeries v. Tizel and Blinick,
[19501 1 D .L.R . 585, aff'd, [1950] 2 D.L .R . 592 (Ont . C.A .) .
"6 "A breach of the condition implied by sub-s. (1) may give the
aggrieved buyer a right to rescind . . .". Per Roskill L.J ., at p. 535, supra,
footnote 2. Italics added. The terms "repudiate" and "rescind" have precise
meanings and should not be confused . For a recent statement of the
significance of the two terms, see the judgment of Megarry J. in Horsler v.
Zorro, [1975] 1 All E.R . 584.
19761 Commentaires 621
may be different if claimed under section 12(2) rather than

section 12(1) . 17 This vindication of section 12(2) by the English
Court of Appeal rests on the construction of the whole of section
12, a construction based on commonsense in the absence of
common law.
The exact origins of the implied warranty in section 12(2)
are not known.l$ Indeed at common law there was not even an
implied warranty of title.19 There is a similarity between the
section 12(2) warranty and that encountered in relation to
1976 CanLIIDocs 14
17 The decision in Rowland v . Divall, supra, footnote 1, enables a
buyer to recover the full purchase price paid without having to account
for any benefit received, for example, by way of use or enjoyment of the
goods, where there is a breach of s . 12(l) amounting to a total failure of
consideration . A buyer seeking damages under s . 12(2) for wrongful
disturbance of possession would, it is submitted, have to account for
any such benefit (provided there was no defect in title amounting to a total
failure of consideration, applying the reasoning of Rowland v . Divall) and
would be subject to the general duty to mitigate his loss. Note also the
decision in Mason v . Burningham, supra, footnote 1, where a buyer was
able to recover damages under s . 12(2) in respect of the cost of overhaul
work done to a typewriter, in addition to the full purchase price (under
s. 120)), when it was discovered that the typewriter had been stolen.
Rowland v . Divall has been followed on several occasions in Canada .
See, for example, Sloan v. Empire Motors, Ltd (1956), 3 D .L .R . (2d) 53
(B.C.C .A.) ; Fisher v. Campbell (1960), 25 D .L .R. (2d) 74 (B .C.C.A .),
and McNeill v. Assoc . Car Markets Ltd (1962), 35 D .L.R . (2d) 581
(B .C .C.A .) .
la Did Sir Mackenzie Chalmers when he drafted the 1893 Act have
in mind the decision in Howell v . Richards (1809), 11 East 633 or the
civil law on the subject? By the civil law a warranty against eviction exists
in all cases . The Digest gives the maxim in the words of Pomponious :
"Ratio possessionis quae a venditore fieri debet talis est ut si quis eam
possessionem jure avocaverit, tradita possessio non intelligatur ." Dig . 19 .1
3pr . See also Pothier, Vente, Part 11, Ch. 1, s . 2, no. 82. Or does the
warranty derive from a passage in J . P. Benjamin, Sale of Personal
Property (2nd ed ., 1884), p . 574 . Perhaps the answer to the question
"must remain one of the unsolved mysteries of legal history" per Roskill
L.J ., at p . 534, supra, footnote 2 .
is Noys Maxims, c . 42, Paget v. Wilkinson (1696), cited 2 East
448, and see also Morley v . Attenborough (1849), 2 Ex . 500 . By 1864,
however, Erle C.J . in Eichholz v. Bannister (1864), 17 C .B . (N .S .) 708, at
p . 723, could say : "But in almost all the transactions in common life, the
seller by the very act of selling holds out to the buyer that he is the
owner of the article he offers for sale . The sale of a chattel is the
strongest, act of dominium that is incidental to ownership . A purchaser
under ordinary circumstances would naturally be led to the conclusion that,
by offering an article for sale, the seller affirms that he has title to sell,
and that the buyer may enjoy that for which he parts with his money . . . . I
think justice and sound sense require us to limit the doctrine so often
repeated, that there is no implied warranty of title on the sale of a chattel ."
6)22 THE CANADIAN BAR REVIEW [VOL . LIV
sales of land ." Both are future covenants and there can be no
breach until the convenantee has been actually disturbed in his
enjoyment of the property . It was argued in Microbeads that the
similarity was such that the warranty only protected a buyer
from any disturbance of his possession by the act of the seller,
and not against any disturbance by a person claiming by title
paramount.2l The court was not prepared to accept any limitation
on or exception to section 12(2) for the case of disturbance by
title paramount - such as by the patentee coming in and claiming
an injunction to restrain the use of the machine. Only one case22
1976 CanLIIDocs 14
could be found to support the title paramount exception and
this case had been disapproved in the Niblett case.2-3 Moreover,
Lord Greene M.R . had rejected the exception of title paramount in
Mason v. Burningham . 2 } Such a conclusion supports the view
that section 12(2) protects the buyer from disturbance of his
possession by persons other than the seller himself provided such
disturbance is lawful .'-5 Refusal to allow an exception in the case
of title paramount does not, of course, extend section 12(2) to
cover any (unlawful) disturbance by persons other than the
seller.26 Nor does it in any way contradict the approach to section
12(l) based on Rowland v. Divall . But if for one moment you
accept the notion of relative title in the sale of goods, 27 title
2o Atkin L.J . noted the similarity in Niblett v. Confectioners'

Materials Co . Ltd, supra, footnote 1, at p. 403 .
2 1 The covenant for quiet possession on a sale of land does not protect
a buyer when he is evicted by title paramount. Jones v. Lavington, [1903]
1 K.B . 253. A seller of land does not warrant that he has a good title.
Bain v. Fothergill (1874), L.R . 7 H.L. 158.
2 Montforts v. Marsden, supra, footnote 1.
2 2 [19211 3 K .B . 387, at pp . 394, 399 and 403.

=}[1949] 2 K.B . 545, at p. 563 . "It is to be observed that in the
language used in the Sale of Goods Act, 1893, s. 12(2), there is no exception
for any disturbance by title paramount . The words are as I have quoted
them, 'That the buyer shall have and enjoy quiet possession of the goods' .
I invited counsel for the defendant to refer us to any authority that would
justify the insertion into that statutory phrase of an exception in the case
of title paramount, but he was unable to do so, and, in the absence of
authority, I can only express the opinion that the statute means what it
says and is not to have any such gloss put on it."
2-5 D.W . Grieg argues that there must be some "nexus" between the
seller and the person effecting the disturbance . Sa'!e of Goods (1st ed .,
1974), p. 171 .
=(; Bergfeldt v. Markell, [1921] 1 W.W .R. 453 . A seller can hardly be
taken to warrant that no third party will ever tortiously interfere with
the buyer's possession in the future . Atiyah, op . cit., footnote 11, p. 55 .
27 See Battersby and Preston, The Concepts of "Property", "Title", and
"Owner" Used in the Sale of Goods Act 1893 (1972), 35 Mod. L. Rev. 268,
19761 Comments 623
paramount might be an "exception" to section 12 (2) as it would

ex hypothesi be to section 12(l) . In England, this position has
been reached by virtue of the qualified covenant which can
now be given under the new section 12(2) .28
Microbeads shows that the time factor is particularly relevant
to the operation of section 12. The general rule is that the implied
conditions in sections 12-15 apply at the time of the sale . Although
it had been suggested that the implied conditions inure for a
reasonable period of time from the sale ,29 the English Court of
1976 CanLIIDocs 14
Appeal (in another recent decision)3° has pointed out that the
relevant time for the application and operation of the implied
conditions is the time of the sale . Section 12(2) provides an
exception to this general rule. The force of the decision in
Microbeads depends not on the fact that the sale took place before
the patent was granted but before the complete specification had
even been published. Section 12(l) provides that there is an
implied condition that the seller "has the right to sell the . goods" .
That means, according to Lord Denning," that the seller has a
right to sell the goods at the time of the sale. In Microbeads,
the sellers could pass the property at that time and as there was
then no subsisting patent the buyers were free to use the machines
undisturbed. By contrast, the words (and the implied warranty)
in section 12(2) "the buyer shall32 have and enjoy,quiet possession
of the goods" apply not only to the time of the sale but also to
the future . 33 The time factor is therefore particularly relevant in
and the discussion of their thésis in the light of the recent decisions of
the Alberta Supreme Court in Avco Corp. v. Borgal and Brandon v. Lackie
(1973), 29 D.L.R . (3d) 633 in (1974), 37 Mod. L. Rev. 213 (Powles),
(1975), 38 Mod. L. Rev. 77 (Battersby and Preston) and (1975), 38 Mod.
L. Rev. 83 (Powles) . .
23 Some potential problems of the new s. 12(2) are discussed by A.D .
Yates, The Supply of Goods (Implied Terms) Act 1973, [1973] J.B .L . 135,
at pp. 135-136.
29 See Mash and Murell v. Joseph I. Emmanuel, [1961] 1 All E.R .
485, rev'd on the facts, [1962] 1 All E.R . 77 . Discussed by Atiyah, op . cit.,
footnote 11, p. 90 . See also the Ontario Law Reform Commission's
Report on Consumer Warranties and Guarantees in the Sale of Goods
(1972), pp . 37-38 .
30 Crowther v. Shannon Motor Co., [1975] 1 W.L .R. 30 . If, however,
a defect in the goods appears within a reasonable period of time, that is
evidence which may go to show that there was a breach of one (or more)
of the implied conditions at the time of sale.
31 Supra, footnote 2, at p. 531 .
32 Italics added.
33 "'shall enjoy' means in the future", per Lord Denning M.R .,
supra, footnote 2, at p. 531 .
624 LA REVUE DU BARREAU CANADIEN [VOL. LIV
distinguishing the area of operation of section 12(1) and section

12(2) . Professor Atiyah has pointed-34 out one further implication
of the operation of the time factor in this context : time for the
purposes of the limitation of actions begins to run from the date
of sale under section 12(l) (-or at the latest, at the time when
the property passes), but only from the disturbance of possession
under section 12(2) .
An English commentator 3-5 has suggested that the decision in
Microbeads provides a result, not only reasonable but fair. The
1976 CanLIIDocs 14
plaintiffs, a Swiss company, might not agree: the complete
specification had not been published and they had no knowledge
of the nature of the patent application and no opportunity to
object to it .-" The plaintiffs could fairly be described as an innocent
party. Of course, situations where one of two innocent parties
must bear a loss occasioned by a third are not unknown to the
law of sale of goods . The rule nemo dot good non habet provides
the classic syndrome . One party (the "innocent purchaser" in
the normal nemo dot model : the "true owner" in "exceptional"
circumstances) bears the loss,37 established property rights
generally taking precedence over the protection of commercial
transactions .38 In Microbeads the situation was such that one of
two innocent parties had to suffer - not because of the fraud,
deceit or other wrongful act of any third party, but because of
the retrospective effect of certain provisions of the English Patents
Act 1949 . The English Court of Appeal stated the policy of the
1893 Act in this context. The seller must bear the loss : "because,
34Atiyah . op . cil., footnote 11, p. 55 .

351. S. Blackshaw (1975), 72 L. Soc. Gaz. 187.
36S. 14 of the English Patents Act 1949, supra, footnote 3, provides
that at any time within three months from the date of the publication of
the complete specification any person interested (i .e ., possessing a legitimate
trading, proprietary, or financial interest which would be prejudiced by
the grant.) may file notice of opposition on any of certain specified
grounds.
37 The possibility of apportioning the loss in such cases between the
"true owner" and the "innocent purchaser" was suggested by Lord Devlin in
the course of his judgment in Ingrain v. Little, [19611 1 Q.B . 31 . But this
proposal has been rejected in England as being unworkable . See the
English Law Reform Committee's Twelfth Report, Transfer of Title to
Chattels (1966), Cmd 2958, paras 8-13 .
38 It would appear that Moore J . was influenced by this general policy
consideration in Brandon v. Leckie, supra, footnote 27, at p. 637: "It
simply does not seem logical that the Legislature of the Province, in
its wisdom, would enact legislation, the effect of which would be to
preclude a true owner, who has done no wrongful act, from attempting
to regain and in fact regaining a chattel stolen from him ."
1976] Commentaires 625
after all, he sold the goods" . 39 Microbeads reaffirms the strict

liability of the implied conditions, once proven,4 ° and provides
another example of property rights (albeit at the time unestab-
lished) taking precedence .
What can a seller do to protect himself prospectively against
the sort of problem that arose in Microbeads? It should be
remembered that such cases are likely to be very few in number
and the problem should be considered with the right sense of
proportion . The lawyer's immediate reaction may be to prepare
1976 CanLIIDocs 14
an exclusion clause . But there is considerable doubt as to whether
(and if so, to what extent) section 12 can be excluded by contrary
agreement.41 This doubt may itself have discouraged the draftsman
of standard form contracts generally from trying to exclude
section 12 at all . 42 The approach of the English legislature in the
1973 amending Act has been to deny the possibility of excluding
section 12 but at the same time the means has been provided for
the seller to give a qualified covenant as to title. 43 In Microbeads,
Sir John Pennycuick acknowledged that the scope of section 12(2)
could be cut down by an exclusion clause 4 4 But bearing in mind
39 Supra, footnote 2, per Lord Denning M.R ., at p . 533 .

40 Liability under ss 12-15 of the Sale of Goods Act generally does
not depend on the fault or knowledge of the seller .
41 Payne v . Elsden (1900), 17 T .L .R. 161 ; Clark v . England (1916),
29 D .L .R . 374 (Alta S .C .) . See also Prescott v . Trapp & Co . (1914), IS
D .L .R. 794 (S .C .C.) ; Northwest Co . v. Merland Oil Co. of Can . & Gas
& Oil Products Ltd, (1936) 4 D .L .R . 248 (Alta S .C .) . And for a case where
the South Australian equivalent of s . 12 was excluded by implication, see
Warmings Used Cars, Ltd v . Tucker, (1956] S .A .S .R. 249 . Ther e has been
considerab'e academic discussion on this question : see generally, B . Coote,
Exception Clauses ; Some Aspects of the Law Relating to Exception Clauses
in Contracts for the Carriage, Bailment, and Sale of Goods (1964),
pp . 61-69 .
42 See Slates, op. cit ., footnote 28, at p . 136 .
43 See the amended s . 12(2), set out in footnote 7, supra. The new
section contemplates contracts of sale in which the "property" to be
transferred will not necessarily be the full ownership of the goods in
question. But as Grieg points out : "Unless unscrupulous traders look
upon s . 12(2) as an invitation to include terms in contracts of sale to
restrict their liability for breach of s . 12(l) by suggesting that they are
selling some right less than ownership of the goods, most contracts of
sale will fall within s . 12(1) ." Op . cit ., footnote 25, p . 167 .
44 "It seems to me that insofar as the scope of sub-s . (2) is to be
cut down, it must be under the opening words of the section, namely, ùnless
the circumstances of the contract are such as to show a different intention' .
It will be for the court to consider in any of these cases -which are
likely to be rare - whether those words are sufficient to take the particular
case out of the ambit of sub-s . (2)", per Sir John Pennycuick, at p . 537,
supra, footnote 2 .
the approach of the Canadian courts to exclusion clauses

generally, 45 Microbeads may be a dangerous precedent for the
draftsman to adopt. It should also be remembered that in British
Columbia the exclusion of the condition and warranties in
section 12 is expressly prohibited. 46
Canadian lawyers can rightly say of Microbeads, "it could
never happen here". Section 58 of the Canadian Patent Act
provides that every person who, before the issuing of a patent
has purchased, constructed or acquired any invention for which a
patent is afterwards obtained under the Act, has the right of
1976 CanLIIDocs 14
using}' and vending to others the specific article, machine, man-
ufacture or composition of matter patented and so purchased,
constructed or acquired before the issue of the patent, without
being liable to the patentee for so doing. 48 The operation of section
58 is not affected by the fact that an application for a patent has
been made and is pending at the Patent Office49 - contrast the
situation in Microbeads. Whilst the full ambit of section 58 has
yet to be finally ascertained, 5° its potency cannot be denied . 5t
45 For a recent statement, see the judgments of the Supreme Court of

Canada in B. G. Linton Construction Ltd v. Canadian National Railway Co .
(1975), 49 D.L .R. (3d) 548 . "There must be a residue of obligation that is
not cancelled out by concurrent exemption; otherwise, it is illusory to speak
of a contract", per Laskin C.J .C ., at p. 552 . The "fundamental" nature
of s. 12 should not be forgotten.
46 Supra, footnote 46, s. 21A .
47 R.S .C., 1970, c. P-4. Any such use will not invalidate the subsequent
patent unless it occurred more than two years before the patent application
and as a result the invention became public and available to public use.
Canadian Patent Act, ibid ., s. 28(1) (c) .
4s Barber v. Goldie Construction Co . Ltd, [1936] O.W .N . 383 ;
Schweyer Electric & Mfg Co . v. N.Y. Centra l Railroad Co ., [1934] Ex .
C.R . 31 ; Wilson v. The King (1952), 17 C.P .R . 71 ; Reliable Plastics Ltd
v. Louis Marx & Co . (1958), 17 Fox. Pat. C. 184; Unipak Cartons Ltd
v. Crown Zellerbach Canada Ltd (1960), 20 Fox. Pat. C. 1 ; and see
generally, H. G . Fox, The Canadian Law and Practice Relating to Letters
Patent for Inventions (4th ed ., 1969), pp . 394-395.
49 I'ictor Sporting Goods Co. v. Harold A . Wilson & Co . (1904),
3 O.W .R . 496; Schweyer Electric & Mfg Co. v. N.Y . Central Railroad Co.,
supra, footnote 48 .
5"Whilst specific articles acquired or constructed before the grant of
patent may be used or disposed of, s. 58 does not give any right to continue
manufacturing patented articles ; Fowell v. Chown (1894), 25 O .R . 71 .
It is, however, questionable whether s. 58 permits the continued use, after
issue of patent, of a patented process, the use of which was commenced
before the grant. See Libby-Owens-Ford Glass Co . v. Ford Motor Co . of
Canada (1970), 62 C.P .R . 223, where the Supreme Court of Canada held
that the immunity of s. 58 extended to an infringing process in circumstances
19761 Comments 627
Microbeads reminds us of the problems of section 12 . They

are not merely subject matter for the classroom discussion. In any
future reform of sale of goods careful consideration must be
made to balance the "property" and ."contractual" elements
involved in the transaction, 52 and, when this balance is found,
to delimit most clearly the nature and extent of any successor
to section 12.
C . S . KERSE
1976 CanLIIDocs 14
CRIMINAL LAW-RULE AGAINST MULTIPLE CONVICTIONS .-The
trend in Canadian judgments has been to limit the rights of an
accused. Perhaps Canadian judges wish to steer away from what
they feel is the excessive libertarianism of United States courts,
epitomized by the Warren Court. But the result has been that, as
compared with courts in other Anglo-American jurisdictions,
Canadian courts have so minimized the protections afforded to
the individual as to leave him, in many important respects, at the
mercy of the trial judge, the police and the prosecution .
For example, Canadian judges have restricted the scope of
perhaps the most important element in a fair adversarial system
of criminal justice, the privilege against self-incrimination .' A
suspect's right of silence is not violated by being compelled to
testify at a coroner's inquest2 or at a Royal Commission hearing .3
where the patent granted subsequent to the defendants' acquisition of the

apparatus contained both process and apparatus claims . The Supreme Court
did not find it necessary to deal with the finding of Thurlow J. in the
Exchequer Court (1969), 57 C.P.R. 155, who, considering the omission
of the word "process" from the relaxing words of s. 58, decided that a
"process" could come within the meaning of the word "article". The
point is to this extent still at issue.
51 D. S. Johnson has commented on s. 58: "Our American friends
have been horrified at this section since it allows a competitor to build up
a stock of items prior to the date of issuance of the patent and to sell
them with impunity thereafter ." Proceedings of the Programme on
Industrial and Intellectual Property, April 2nd, 1971, p. 21, The Law
Society of Upper Canada .
52 See K. C. T. Sutton, The Reform of the Law of Sales (1969),
7 Alta L. Rev . 130, at p. 173.
' * C. S. Kerse, Solicitor, Lecturer in Law, University of Manchester.
1 E. Ratushny, Is There a Right Against Self-Incrimination in Canada?
(1973), 19 McGill L.J . 1, passim .
2 Re Wilson Inquest, Whitelaw v . McDonald and A .G . B .C . (1968),
66 W .W.R . 522 (B.C.C.A.) (leave to appeal to S.C.C. denied) .
3 R . v. Quebec Municipal Commission, Ex parte Longpre, 11970)
4 G.C.C. 133 (Que. C.A .) (the suspect had been charged under the Code) ;
628 LA REVUE DU BARREAU CANADIEN [VOL . LTV
Since the privilege extends neither to "real" evidence obtained

from the accused nor to the accused's conduct, an adverse
inference may, in the circumstances, be drawn from a suspect's
refusal to enter a line-up (identification parade) .4 If the accused
takes the stand at his trial, it is unclear whether he is subject to
wide-open cross-examination to credit, like an ordinary witness.
If so, the prosecution may cross-examine the accused as to moral
and social misconduct, which may be relevant to credibility but
is also highly prejudicial to an accused's right to a fair trial on
the merits, particularly in a trial by jury and notwithstanding any
1976 CanLIIDocs 14
instructions or admonitions to the jury by the trial judge . The
prospect of such cross-examination may daunt an accused from
taking the stand, even though he has a good defence to the
charge . The accused who wishes to testify on a voir dire, a trial
within a trial, as to the involuntariness of his confession, faces a
similar problem. Subject to the trial judge's discretion, the pros-
ecution may cross-examine the accused as to his guilt by asking
the accused at least whether his confession is trues and perhaps a
good deal more . Such cross-examination may be highly prej-
udicial where the trial is by judge alone. However, in a trial by
jury, since the jury is excluded during the voir dire, the risk of
prejudice would be eliminated. In Canada, this danger may not
be removed, for there is some authority that the accused's tes-
timony on the voir dire, which is relevant to the issues in the trial,
is admissible evidence in the trial against the accused." If this
authority were correct, in order to vindicate his right to challenge
the voluntariness of a confession, the accused must in effect waive
the privilege against self-incrimination and submit to extensive
Re Inquiry re Department of Manpower and Immigration in Montreal

(1974), 22 C .C .C . (2d) 176 (Commission of Inquiry) .
4 Marcoux and Solomon v. The Queen (1975), 29 C .R .N .S . 211
(S .C .C .) .
5 Cf . R. v. Davison, DeRosie and MacArthur (1974), 6 O.R . (2d)
103, 20 C .C .C . (2d) 424 (Out . C .A .) (leave to appeal to S .C .C . denied),
with Morris v. The Queen (1975), 30 C.R .N .S . 85 (Que. C .A .) and R. v.
Bird (1973), 13 C.C .C . (2d) 73 (Sask . C .A .) .
s DeClercq v. The Queen, [1968] S .C .R. 902, 4 C.R .N .S . 205, [1969]
1 C .C .C . 197, 70 D .L.R . (2d) 530 (the accused may be asked whether
his confession is true ; Cartwright C .J .C ., discussed the trial judge's
discretion) .
7 See R . v. Pan Dongen, [1975] 4 W .W .R . 246, 31 C .R .N .S . 346
(B .C.C.A.) .
5R . v. Pan Dongen, ibid .; R. v. Milner (1969), 72 W .W.R . 572,
11 C .R .N .S . 178 (B .C .C .A .) (both cases involved trial judges sitting
without a jury) .
cross-examination on the merits on the voir dire. Fortunately,

the Supreme Court of Canada has held that a trial judge sitting
without a jury must not consider the accused's admission that
the confession was true for any purpose other than the voluntari-
ness of the confession . Thus whether the trial is with a jury or not,
evidence received on the voir dire is inadmissible at trial, except
that, as a practical matter, a trial judge, sitting without a jury,
does not have to hear again, in the trial proper, evidence as to
the voluntariness of the confession in determining its weight.9 The
privilege against self-incrimination has been rendered a hollow
1976 CanLIIDocs 14
protection for an accused who is also a party or a witness in civil
proceedings involving the same matter. Because the accused is a
compellable witness in the civil action, he or she can be "whip-
sawed" into self-incrimination .10 The civil court will not grant a
stay of proceedings until the criminal charges have been dealt
withal Finally an accused who does not take the stand at trial
in his own defence, faces the likelihood that this exercise of the
privilege against self-incrimination will be held against him by an
appellate court on his appeal from conviction?lA
Another hallmark of a fair adversarial system is the right to
counsel during both pre-trial procedures and the trial itself. Con-
cerning the accused's right to counsel at trial, it has been held
that indigent accused who cannot afford counsel do not have an
absolute right to representation by court-appointed counsel.12
Thus, representation by counsel is not an essential ingredient of
9 R. v. Gauthier (1975), 18 Crim . L .Q. 4, 33 C .R.N.S. 46 (S .C .C.) .

10 Stickney v . Trusz (1974), 3 O .R . (2d) 538, 28 C .R.N .S . 125,
1.7 C .C .C . (2d) 478 (Ont. C .A .) affing (1973), 2 O.R . (2d) 469,
16 C .C .C . (2d) 25 (Ont . H .C .) . By invoking the protection of s . 5
of the Canada Evidence Act, R.S .C ., 1970, c . E-10, which abolishes
the common law privilege of a witness to refuse to answer incriminating
questions, a witness in a civil or criminal proceeding can render the
testimony inadmissible in other criminal proceedings . However, the police
may use the testimony to lead to further evidence which will be admissible .
A trial judge owes no duty to advise a witness of the protection afforded
by s . 5 : Tass v. The King, [1947) S .C .R . 103, 87 C.C .C. 97, 2 C.R . 503,
[19471 1 D .L .R . 497 (S .C .C.) .
11 Stickney v. Trusz, ibid .
11ACorbett v. The Queen (1973), 25 C .R.N .S . 296 (S .C.C .) ; see also

R . v . Vezeau (1976), 8 N .R . 235 (S .C.C .) .
12 R . v . Ewing and Kearney, [19741 5 W .W.R . 232, 29 C.R .N .S . 227,
sub noin ., Re Ewing and Kearney and the Queen (1973), 15 C .C.C . (2d)
107 (B .C .C .A .) ; W .W . Black, Right to Counsel at Trial (1975), 53 Can . Bar
Rev . 56 ; see also, Re Gilberg and the Queen (1974), 53 D .L.R . (3d)
441, 20 C .C .C . (2d) 356 (Alta S .C .A .D .) (leave to appeal to S .C .C .
denied) .
a fair trial. As to the right to counsel before trial, the breathalizer

cases show how Canadian judges have cut down the right to the
advice of counsel in order to punish drinking drivers . Where a
suspect's desire to obtain the advice of counsel before taking the
test is not simply a delaying tactic, he may refuse to supply a
breath sample until the confidential advice of a lawyer has been
received . Such refusal is a "reasonable excuse" and exonerates
the accused from the charge of wilfully refusing to take the
breathalizer test ."' However, the accused does not have to be
advised of the right to counsel in order for the results of the test
1976 CanLIIDocs 14
to be admissible. If the accused asks to consult counsel and the
police prohibit it, notwithstanding this illegality, should the
accused give a breath sample, the evidence of the breath test is
admissible."`" Neither the right to counsel nor the privilege against
self-incrimination renders this evidence inadmissible .
Throughout the Commonwealth, the accused is afforded
some protection from illegal searches, seizures and interrogations
by the discretionary jurisdiction of a trial judge to exclude
evidence improperly obtained, even though such evidence may
otherwise be admissible. In the United States, the courts have
developed exclusionary rules to deal with illegally obtained
evidence. But in Canada, there are no such common law exclu-
sionary rules in criminal cases, beyond the voluntariness rule
which applies to confessions, and the Supreme Court of Canada
has denied the existence of a discretion to exclude evidence
13 Brownridge v, The Queen, 119721 S.C.R . 926, 18 C.RN .S. 308,

7 C.C .C . (2d) 417, 28 D.L.R . (3d) 1 ; R. v. Sexton (1972), 10 C.C.C . (2d)
131 (P .E .I.S .C .) ; R. v. Morgan (1972), 9 C.C.C . (2d) 502 (N .S .Co .Ct) ;
R. v. Penner, [l973] 6 W.W .R. 94, 22 C.R.N .S . 35, 12 C.C .C . (2d) 468
(Mon . C.A .) ; R. v. Walkington, [19741 6 W.W.R . 117 (Sask. C.A .) ;
R. v. Balkan, [1973] 6 W.W .R . 617, 25 C.R .N .S . 109, 13 C.C .C. (2d)
482 (Alta S.C .A.D .) ; R. v. Stasiuk (1974), 25 C.R.N .S . 309, [1974]
2 W.W .R. 439 (Sask. D.C.) ; R. v. Straightnose, [l974] 2 W.W .R. 662
(Sask. D.C .) ; R. v. Makisinchuk, [1974] 2 W.W .R. 668, 15 C.C .C. (2d)
208, 43 D.L .R. (3d) 478 (Mon . C.A.) ; R. v. Doherty (l973), 25 C.R .N .S.
289, 16 C .C .C . (2d) 494 (N .S .S .C-A .D .) ; R. v. Doherty (1974), 30
C.R .N .S . 80 (N .S .Co.Ct) ; R. v. Irwin, [l974] 5 W.W .R . 744, 50 D.L .R.
(3d) 272 (Man . C.A .) (leave to appeal to S.C .C. granted) ; R. v, Anderson
(l974), 19 C.C .C . (2d) 301 (Sask. C.A .) ; R. v. McGuirk (1975), 7 Nfld
and P.E.I . R. 328 (P.E.I .S .C .) ; R. v. Baker (1975), 23 C.C.C . (2d) 361
(Sask. D.C.) ; R. v. Izord (l975), 22 C.C .C . (2d) 441 (B .C .Co.Ct) .
14Hogan v. The Queen (1974), 18 C.C .C . (2d) 65, 26 C.R .N .S . 207,
48 D.L .R . (3d) 427, sub nom . R. v. Hogan (1974), 2 N.R. 343 (S .C .C .) ;
R. v. Peterson, [1974] 4 W.W .R. 144, 16 C.C .C . (2d) 531, 13 C.R .N .S . 34
(Alta S.C .A.D .) ; R. v. Porteous, [1974] 4 W.W.R. 411 (Mon . Prov . Ct) .
19761 Comments 631
because of the illegality or impropriety of methods used to obtain

it. 15
Appellate courts have made extensive use of the statutory

proviso that an accused's appeal must fail if there were no
substantial wrong or miscarriage of justice." , This means that if
the record clearly shows the accused's guilt, an appellate court
will not upset a conviction because of irregularities in the trial.
On this ground, appellate courts have affirmed convictions even
where there has been such unfair procedure at trial as the
1976 CanLIIDocs 14
introduction of inadmissible and prejudicial evidence", or the trial
judge's failure or refusal to hold a voir dire as to the voluntarmess
of a confession. 18
Canadian courts have interpreted the Bill of Rights'- 9 in such

a restrictive way as to minimize its protections . Notwithstanding
this, Parliament has greatly strengthened the right to bail on arrest`-'°
and the right to privacy.21 It remains to be seen how the courts
15 R . v . Wray, [1971] S .C .R . 272, [1970] 4 C.C .C. 1, 11 D .L.R .

(3d) 673, 11 C .R.N .S . 235 . The Protection of Privacy Act, S .C., 1973-74,
c. 50, proclaimed in force on June 30th, 1974, amended the Criminal Code,
R .S .C., 1970, c . E-34, by adding a new Part IVA, dealing with the
interception of communications and their admissibility . S . 178 .16 of the
Code renders inadmissible evidence obtained directly or indirectly by
unauthorized wiretapping or eavesdropping, subject to judicial discretion .
In a civil action, a party who has induced the other party to make a
communication by promising confidentiality may not introduce that com-
munication against the maker in breach of confidence : Slavutych v . Baker,
[1975] 4 W .W .R. 620 (S .C .C .) .
16The Criminal Code, R .S .C ., 1970, c . E-34, s . 613(1)(b)(iii) .
11 R . v . Labuik and, McManus, [1974] 5 W .W.R . 650 (Man . C.A.) (the
trial judge gave a curative direction to the jury) ; R . v. Bourget, [1973]

1 W .W .R. 425 (Sask . C .A .) ; R . v . McDonald (1974), 27 C.R .N .S . 212
(Ont. C.A.) .
1 8R . v. Allen (1974), 8 N .B .R. (2d) 131 (N .B .S .C. A .D .) ; R . v .
Bloomfield (1973), 21 C .R .N .S . 97, at pp . 104-105 (N .B .S .C.A .D .)
(involuntary confessions admitted without a voir dire but no miscarriage
of justice) ; R. v. Powell (1974), 21 C .C.C . (2d) 20 (Man . C .A .) .
19 R .S.C ., 1970, Appendix III .
20 The Bail Reform Act, S .C ., 1971, c. 2 (2nd Supp .), as am. For
restrictions on the broadened right to release, see Criminal Law Amendment
Act, 1975, Bill C-71, 1st Sess ., 30th Parliament.
21 The Protection of Privacy Act, supra, footnote 15 ; R. Delisle,
Evidentiary Implications of Bill C-176 (1974), 16 Crim. L .Q. 260 ; P. Burns,
Electronic Eavesdropping and the Federal Response : Cloning a Hybrid
(1976), 10 U .B .C .L . Rev . 36 .
will interpret these provisions, but the early cases indicate a

narrow and restrictive attitude . 22
Against this trend, the case of Kienapple v. The Qtteen 23
stands out, because it is potentially so favourable to the defence .
It involves procedural fairness whereby the accused may be
protected from multiple prosecutions and multiple punishment
in respect of the same matter.
The Kienapple Case
1976 CanLIIDocs 14
By a majority of five judges to four, the Supreme Court of
Canada held that an accused should not be convicted of more
than one offence arising out of the same criminal event or
transaction . At trial, the jury had convicted Mr. Kienapple of
rape 24 and sexual intercourse with a female under the age of
fourteen years, not being his wife.=~, The trial judge sentenced
the accused to ten years concurrent on each count. The accused's
appeal to the Ontario Court of Appeal was dismissed without
written reasons . But, in the Supreme Court of Canada, Mr.
Justice Laskin, as he then was,!-'G for the majority, Judson, Spence,
Pigeon and Dickson JJ., concurring, accepted the accused's argu-
ment that having been convicted of rape, he should not, in
addition, be convicted of unlawful carnal knowledge. According
to Mr. Justice Laskin's reasons, the trial judge should have
instructed the jury that if it found the accused guilty of the first
count, rape, it should not consider further the second count,
unlawful carnal knowledge . If the jury concluded that the accused
22E.g ., R. v. Demeter (1975), 19 C.C .C. (2d) 321 (Ont. H.C .) ;

Re Miller and Thomas and The Queen (1975), 23 C.C .C . (2d) 25, sub
horn . R. v. Miller and Thomas (1976), 32 C.R.N .S . 192 (B .C .S .C .)
(certiorari unavailable to review authorization granted by a judge to
conduct a wire tap) . Cf. Re Stewart and the Queen (1975), 23 C.C .C.
(2d) 306 (Ont . Co . Ct) ; R. v. McQueen, [1975] 6 W.W.R . 604 (Alta
S.C .A.D .) (after raiding a bookie operation, police took the incoming
telephone calls, not an "interception" within the Privacy Act) ; see also
R. v. Hancock and Proulx (Nos 1-5), [1975] 6 W.W .R. 193-219 (B .C .
Prov . Ct) .
23
' [1975] 1 S.C .R . 729, 15 C.C .C. (2d) 524, 26 C.R .N .S . 1, 44
D.L .R . (3d) 351; K. L. Chasse, A New Meaning for Res Judicata and Its
Potential Effect on Plea Bargaining (1974), 26 C.R .N .S . 20, 48, 64 ; E. G.
Ewaschuk, The Rule Against Multiple Convictions and Abuse of Process
(1975), 28 C.R .N .S . 28 ; A.W .M ., Nemo bis Vexari (1974), 16 Crim . L.Q .
382.
Criminal Code, supra, footnote 16, s. 143 .
2 5 Criminal Code, ibid., s. 146(1) .
2c Now Chief Justice of the Supreme Court of Canada .
was not guilty and should be acquitted of rape, they could still
find him guilty of unlawful carnal knowledge, providing the
elements of that offence were proved . Laskin J., quashed the
conviction for unlawful carnal knowledge and nullified the con-
current sentence on that count.
An Ontario decisio 27 prior to , the Kienapple case had dis-
cussed the procedure to be followed where the accused was
charged with more than one count arising out of the same
incident. Although Laskin J., did not refer to it in his reasons in
1976 CanLIIDocs 14
Kienapple, he was a member of the Ontario Court of Appeal at
the time and wrote a dissenting judgment in the case . It is sub-
mitted with respect that the procedure for a jury trial which is
suggested in the following passage from the majority judgment
in that case is preferable to the one described by Laskin J., above.
Moreover, it appears that he approved of this alternative pro-
cedure in his dissenting judgment. Speaking for the majority23 of
the Ontario Court of Appeal, with at least the tacit approva129
of Laskin J.A ., as he then was, McLennan J.A., stated : 39
. . . where there are distinct but related offences [here, impaired driving
and dangerous driving] arising out of the same incident where a jury
might bring in a verdict of guilty on both counts so that a man might
be punished twice for the same conduct, it would be the better course
for a trial judge to pursue if, after the general charge relating to all
criminal trials, he were to deal with the more serious offence first,
the case for the Crown and the case for the defence with respect to
that charge and then send the jury out to return a verdict on that
charge . If the verdict is an acquittal, then the jury should be sent
out on the less serious charge after appropriate directions with relation
thereto . If the verdict is guilty on the more serious charge, the Crown,
rather than asking for a directed verdict of acquittal on the less serious
charge, should nolle prosequi on that charge so that if the verdict of
guilty in the first charge was set aside on appeal the Crown could
proceed on the .less serious charge .
It will be noted that if the trial judge directs the jury separately
on each count until it convicts the accused of one count or
acquits him of all the counts, there is less chalice that the jury
will be confused than if it is instructed on all the counts at once as
Laskin J., suggested. The prosecutor's use of a stay of proceedings
27 R . v. Peda, [1969] 1 O .R . 90, 4 C .R .N .S . 161, [1969] 2 C .C .C .

228 (Out . C .A .), aff'd, [1969] S .C .R. 905, 7 C .R .N .S . 243, [1969] 4 C .C.C .
245, 6 D .L .R . (3d) 177 .
2s Mackay LA., agreed with 1blcLennan J .A .
173
29 Supra, 241footnote 27, at pp . 103 (O .R .), (C .R.N.S .),
(C .C .C.) .
3',0Ibid ., at pp . 99 (O .R .), 168-1.69 (C.R .N .S .), 237 (C .C.C .) .
634 THE CANADIAN BAR REVIEW [VOL . LiV
(nolle prosse or nolle prosequi) in the described circumstances

was not adverted to by Laskin J., but nevertheless, it is submitted,
violates neither fair play nor double jeopardy and does not
amount to abuse of process.:"
Since the defence established by the Kienapple case is res
judicata, the accused may raise it by pleading not guilty.32 It is
not a special plea . However, the burden of proof is on the
accused to establish that the previous conviction and the present
charge comprise the "same transaction ".33 The introduction of
a certificate of conviction or acquittal without some supporting
1976 CanLIIDocs 14
evidence from the first trial to identify the event may not be
sufficient, at least where the offences are different.
The Kienapple case precludes only multiple convictions for

the same act. It does not, in terms, prohibit the prosecution from
laying multiple charges against an accused in one or more indict
ments. For instance, multiple counts charging the same trans-
action may be a necessary precaution in anticipation of dif-
ficulties in making proof at the trial. If multiple indictments for
the same act are outstanding, the accused may move at trial
to quash the redundant indictments, but neither multiple counts
nor multiple indictments charging more than one offence arising
out of the same incident are inherently bad.34 However, as will
be discussed later, subsequent cases have begun to interpret
Kienapple as requiring the prosecution to join all counts arising
out of the same transaction .
Before the Kienapple decision, a leading writer dismissed
the rule precluding multiple convictions as "not of much con-
31 The stay of proceedings, as it is more commonly known, is

authorized by s. 508 of the Criminal Code, supra, footnote 16 . It is a
formal entry on the record by the prosecutor declaring that the prosecutor
"will no further" prosecute the case ; see generally, Sun, The Discretionary
Power to Stay Criminal Proceedings (.1974), 1 Dalhousie L.J . 482 . The
courts have recognized the right of the Crown to withdraw an information,
beyond the stay of proceedings : R . v. Karpinski, [1957] S.C.R . 343, at
p. 344, per Kerwin C .J .C .; R. v. Osborne (1975), 11 N.B .R . (2d) 48, 25
C.C.C. (2d) 405, 33 C.R .N .S. 211 (N .B.S .C .A.D .) .
:32 R . v. K. C. Irving et al. (1975), 11 N.B .R . (2d) 181 (N .B .S .C .
33R . v. Basque (1975), 11 N.B .R. (2d) 65 (N .B .S .C .A .D .) .

34Ex parte Gilbreath (1974), 20 C.C .C . (2d) 393, at pp . 398-399
(Ont . H.C .) ; R. v. Messina, [1973] 1 W.W.R . 283, (1972), 21 C.R .N .S .
119 (Sask. C.A .) ; R. v. Hunt (1972), 6 C.C .C. (2d) 501 (Ont . C.A .) .
See s. 11 of the Criminal Code, supra, footnote 16, quoted in the text,
infra, at footnote 68 .
19761 Comments 635
sequence" in Canadian and English law.35 Mr . Justice Laskin's

reasons will clarify and enlarge the rule against multiple convic-
tions and point the way to improvements in other areas of
double jeopardy .
Going out on a limb and thus weakening his reasons to do

so, Laskin J., asserted that criminal res judicata was a foundation
underlying double jeopardy and that res judicata 'precluded mul
tiple convictions arising out of the same transaction . He said : 3 c
In my view, the term res judicata best expresses the theory of precluding
1976 CanLIIDocs 14
multiple convictions for the same delict, although the matter is the
basis of two separate offences . . . . Where there has been a previous
conviction of an accused, whether in a former trial or on one count of
a multicount indictment, issue estoppel is obviously an inappropriate
term to urge against a further conviction . of another offence . So too
would be autrefois convict in its strict connotation; hence, the utility
of res judicata .
In civil cases, res judicata comprises bar and merger.37 If

a plaintiff's action goes to judgment and the plaintiff wins,
the cause of action is "merged" in the judgment . If the plaintiff
loses, the cause of action is said to be "barred" . In any event
of the cause, what was considered or should have been considered
in the first action cannot form the basis of a second action by
the plaintiff against the defendant. Mr . Justice Laskin's reasons
neither negated nor supported the existence in criminal law
of the "bar" aspect of res judicata .
Where the accused has been acquitted of a criminal offence,

may he or she be convicted of another offence arising out of
the same transaction? If the offences are multiple counts, tried
at the same time, and the accused is acquitted on the first count,
there is considerable authority, including that of the Supreme
Court of Canada,38 for the view that he or she can be convicted
of another count arising out of the same transaction . Mr . Justice
Laskin implicitly confirmed that possibility when he suggested the
instructions to the jury in his reasons for judgment in the Kienapple
case . However, in the Ontario Court of Appeal case discussed
above, Laskin J.A ., dissenting on this very point, had strongly
s5M . Friedland, Double Jeopardy (1969), p . 204 .

3sSupra, footnote 23, at pp . 748 (S .C.R.), 537 (C .C.C .), 7 (C.R .N .S .),
364-365 (D .L.R .) .
37 See generally, Developments in the Law, Res Judicata (1952),
65 Harv . L. Rev . 818, reprinted in Essays on Civil Procedure (1969), p . 1 .
38R . v . Peda, supra, footnote 27 . See also R . v . Welyki, (1975]
6 W .W .R. 689 (Alta S .C .) .
condemned acquittal of one charge and conviction of a second

count where that meant inconsistent resolution of an issue basic
to both counts, and the counts related to the same criminal event . 39
What about successive trials? If the accused is charged and
acquitted of one offence, may the prosecution charge and obtain
a conviction of another offence based upon the same transaction?
Alternatively, if the accused is charged with multiple counts for
the same act, and one or more counts are severed and tried
separately, would an acquittal of the counts tried earlier preclude,
as res judicata, a conviction of the counts tried later?4° Laskin
1976 CanLIIDocs 14
J., did not advert to whether the accused is limited to the con-
ventional bars and defences of autrefois acquit, issue estoppel
and abuse of process or whether the accused can raise the
new defence of res judicata upon an acquittal.
It is clear that the Kienapple case, which on its facts applied
to multiple counts within a single trial, ought to extend to counts
arising out of the same matter, charged or tried successively
where the accused was convicted at an earlier trial .41 Therefore,
it extends and supplements autrefois convict .
But to say that the Kienapple case precludes a conviction
following an acquittal of a different offence arising out of the
same act is more difficult and requires a broad reading of
Laskin J.'s reasons . If the Kienapple case may be so interpreted,
it will have implicitly recognized in Canadian law the rule that
Lord Devlin laid down in Connelly v. D.P.P.}2 to the effect that
English prosecutors must in general join all counts arising out
out of the same transaction. This aspect of the Kienapple case is
of great importance and will be discussed in more detail in the
pages that follow . It should be noted that in R . v. Heric}3 a
judge applied res judicata and the Kienapple case, to preclude
3s R . v . Peda, ibid ., at pp . 103-106 (O .R .), 172-175 (C.R .N .S .),

241-244 (C.C .C .) .
40R . v . Holmes (1972), 25 C.R .N .S . 154 (Ont. Co . Ct) (defence of
res judicata is available to an accused who is being tried upon a count
which has been severed, based on an earlier trial on the same indictment,
in respect of the other counts), but see R. v. Cormier, [1976] 1 W.W .R . 34
(N .W .T .S .C .) (multiple counts arising out of same transaction, separate
trials on each count; res judicata did not preclude conviction on a count
tried after an acquittal on another count) .
41 See the quotation from Laskin J.'s judgment, supra, footnote 36 .
}2[1964] A.C . 1245, [19641 2 W.L .R . 1145, [19641 2 All E.R . 401,
48 Cr . App. R. 183 (H .L .) .
43 [19751 4 W.W .R . 422, 23 C.C .C . (2d) 410 (B .C . Prov. Ct) .
conviction of a charge laid after an earlier different charge in

respect of the same act had been dismissed because of the
Crown's failure to call evidence . In addition to res judicata, the
judge in the Heric case relied upon abuse of process, which Lord
Devlin had invoked in the Connelly case .
To support the existence of the "same transaction" test as

a part of res judicata, Laskin J., relied upon both English" and
Canadian cases. The more conventional tests as to whether two
offences are the same for double jeopardy purposes are the
1976 CanLIIDocs 14
"in peril" and the "same evidence" tests.4° The "in peril" test,
which is the basis of the special pleas in English law, precludes
a second prosecution if the accused was in peril of conviction
of that offence on the trial of the first indictment . The "same
evidence" test precludes a second prosecution only if the evidence
necessary to sustain a conviction of the second offence is also
sufficient to support a conviction of the offence charged in the
first indictment . Although these tests are somewhat ambiguous,
the courts have found them relatively easy to apply. However,
both the "in peril" and "same evidence" tests are extremely
formalistic and technical. They require a comparison of the
elements of the offences to determine whether such elements are
identical or whether one offence is a lesser included offence of
the other. Neither offers the accused much protection against
multiple prosecutions .
Given free rein, the "same transaction" test would have the
effect that all charges arising out of a single criminal act or
transaction constitute the same offence for double jeopardy
purposes . Critics have argued that this test is at once too favour-
able to the accused, "a defendant's rule", and too vague. Under
this test, the accused's behaviour is more important than the
44 Wemyss v . Hopkins (1875), L.R . 10 Q .B . 378 ; R . v. Miles (1890),

24 Q.B.D . 423 ; R . v. Thomas, [1950] 1 K.B . 26, [1949] 2 All E .R . 662,
33 Cr. App . R . 200 ; another case which Laskin J ., might have referred
to is : R . v . King, [1897] 1 Q .B . 214, at p . 218, per Hawkins J .
45 Friedland, op . cit ., footnote 35, pp . 93-109 ; Kirchheimer, The Act,
The Offence and Double Jeopardy (1949), 58 Yale L .J . 513 ; W. J .
English, Jr ., Double Jeopardy-Defining the Same Offence (1971), 32
La L . Rev. 87 ; J . G . Trimpi, Criminal Law- Multiple Punishment and
the Same Evidence Rule (1972), 8 Wake Forest L. Rev. 243 ; T . R.
Bossert, Double Jeopardy (1971), 76 Dickinson L . Rev . 282 ; R. A . Brown,
The Double Jeopardy Clause ; Refining the Constitutional Proscription
Against Successive Criminal Prosecutions (1972), 19 U .C.L.A. L . Rev . 804 ;
W . L. Carroway, Pervasive Multiple Offence Problems - A Policy Analysis,
[1971] Utah L . Rev. 105 .
allegations or the elements of the various offences . Because

human conduct may be readily divided into different components
and each component may be labelled a separate act or trans-
action, the test is vague and subjective .
Laskin J., did not explain how subsequent courts were to
determine whether two offences involved the same transaction .46
The learned judge's reasons are, it is submitted, deficient in this
respect. Instead of following the logical implications of the "same
transaction" test, he referred, in passing, to criteria which would
1976 CanLIIDocs 14
seem to revive the "in peril" and "same evidence" tests: (1)
whether the counts contain "the same or substantially the same
elements" and (2) whether the counts have the same "limits
of punishment". However, the cases47 which have discussed
section 510(l) of the Criminal Code '4s which deals with the
form of a count, provide some guidance as to the relevant
factors. Section 510(1) states as follows: "Each count in an
indictment shall in general apply to a single transaction. . . ."
The cases show that whether two or more criminal acts arose
out of a single transaction is highly flexible and depends upon
factors which are reminiscent of the rule governing the ad-
missibility of similar fact evidence .49 The considerations are:
(1) the proximity of the offences in time and place, (2)
the accused's intention to attain one criminal objective through
his conduct and (3) the relationship among the various acts
in the sense that each act was an integral and incidental part
46 For this reason, it is difficult to determine which Canadian cases

have been overruled by the Kienapple case . It is submitted that the over-
ruled cases include: R . v . McKay (1972), 21 C.R.N .S. 67 (B .C.S .C.) ; R . v.
Kinch (1974), 7 Nfld and P.E .I . R. 34 (P .E.I .S .C.) ; R . v . Spence and
Scott (1955), 114 C.C.C . 249, 23 C.R . 255, 17 W.W .R . 662 (B .C.C .A.) ;
R. v . Owens (1969), 69 W.W .R . 654, 8 C.R .N .S . 46 (B .C .C.A .) ; R . v.
Firth (1970), 74 W .W .R. 401, 12 C.R .N.S . 184 (N .W .T. Ct) . See
R. v. Skrepnyk, [1976] 1 W.W .R . 88 (Alta S.C .) (impaired driving and
driving with a blood alcohol count of more than .08 arising out of the
same act are subject to res judicata ; hence R. v. McKay, ibid., is now of
doubtful authority) .
47 R . v . Hulan, [l970] 1 C.C .C. 36, 6 C.R .N .S . 296 (Ont. C.A .) ;
R . v . Kisinger and Voszler, [19721 3 W.W .R. 147, 18 C.R .N .S . 120,

6 C.C.C . (2d) 212 (Alta. S.C .A.D .) ; R . v . Zamal et al ., [1964] 1 O.R . 224,
1 C .C .C . 12, 42 C.R. 378 (Ont . C.A .) .
4s Supra, footnote 16 .
4s M. Friedland, Double Jeopardy and Unreasonably Splitting a Case

(1967), 17 U. of T . L.J . 249, at pp . 270-272 ; Friedland, op . cit ., footnote
35, pp . 184-187 .
1976] Comments 639
of a course of conduct .50 Such factors are so ambiguous and

subjective that a rule which depends upon them rather than upon
a comparison of the elements of the offences as required by the
more common "same evidence" or "in peril" tests will in practice
cause some uncertainty and inconsistency. Critics of the Kienapple
case have unduly, it is submitted, emphasized this problem.
Prior to the Kienapple case, although Laskin J., did not

advert to the matter, the "same transaction" test received its
greatest imprimatur from Lord Devlin in Connelly v. D.P .P . 51
1976 CanLIIDocs 14
With three others, Mr. Connelly (hereinafter referred to as the
"accused") had been arrested and charged with murder. At a
trial by judge and jury, they were found guilty. The accused's
defence, that he had not been one of the culprits, was disbelieved .
A second indictment, charging all four with robbery, was left on
file : the prosecution was not to proceed upon it without leave
of the court. The accused successfully appealed to the Court of
Criminal Appeal on the ground that the judge had misdirected the
jury on the issue of alibi. The Court of Criminal Appeal reversed
the conviction and directed an acquittal, because of the rule
of English criminal procedure which prohibits a retrial after
a conviction has been reversed .5 ' The court granted leave to
proceed on the second indictment for robbery. To this indictment
the accused pleaded autrefois acquit . The plea was overruled,
the accused was convicted and sentenced to fifteen years . His
appeals to the Court of Criminal Appeal and the House of
Lords were dismissed. Applying the "same evidence" test, and with
some reference to the "in peril" test, their Lordships held
that robbery was an offence distinct from murder for the purpose
of re-prosecuting the accused. The majority Law Lords, Lord
Devlin, with Lords Reid and Pearce agreeing, held also that
a criminal court had an inherent jurisdiction to prevent abuse
of its process.
50 The American experience confirms that these factors are relevant

to the "same transaction" test ; see Trimpi, op . cit., footnote 45, at
pp . 251-252 .
51 Supra, footnote 42 (Lords Reid and Pearce agreeing on this point) .
See the excellent discussions in Friedland, op . cit., footnote 49 ; Friedland,
op . cit., footnote 35, pp . 161-194; W . V . Schaefer, Unresolved Issues in the
Law of Double Jeopardy : Waller and Ashe (1970), 58 Cal . L . Rev . 391 ;
Brown, op . cit ., footnote 45 .
5-' Criminal Appeal Act, 1968, c . 19, ss 7 and 8 are the successor
provisions : Archbold, Pleading, Evidence and Practice in Criminal Cases
(38th ed ., 1975), paras 891-893, pp . 520-522 .
They went on to establish as a general rule that in future,

English prosecutors must join all counts arising -out of the same
transaction in one information or indictment, subject to severance
in exceptional circumstances. Thus the Connelly case establishes
the "same transaction" test as the proper criterion for compulsory
joinder of counts . But the accused could not make an abuse of
process out of the prosecutor's failure to join robbery and murder
counts, since a rule of practice prohibited the prosecution from
such joinder. 53 The majority Law Lords rejected the rule of
practice requiring murder charges to be tried separately as unnec-
1976 CanLIIDocs 14
essary and undesirable .
The status of the majority Law Lords' judgments in Cana-
dian law is in doubt. After initial hesitation," the trend of
Canadian cases is to recognize an inherent jurisdiction to prevent
abuse of process. 55 But Canadian courts have not yet approved
compulsory joinder as required by the Connelly case.56 Moreover,
it is unclear whether the general principle, which is part of abuse
of process, that the Crown should avoid unreasonably splitting
its case, is established in Canadian criminal procedure. 57 Insofar
as the Kienapple case provides an opening in these areas it is to
be hoped that the Canadian judiciary will make good use of it -
especially as a stepping stone to compulsory joinder.
In the Kienapple case three judges, Fauteux C.J.C., Ritchie
and Martland JJ., dissented. In the leading dissenting opinion,
Ritchie J., applied the conventional "same evidence" and "in
peril" tests. After comparing the elements of the two offences,
rape and unlawful carnal knowledge, Ritchie J., concluded that
they were different offences : 53
53 In Canada, a prohibition against joinder of other counts with a

murder count is retained in s. 518 of the Criminal Code, supra, footnote 16 .
54 R. v. Osborn, [1971] S.C .R . 184, 12 C.R .N .S . 1, 1 C.C.C . (2d) 482,
15 D.L.R . (3d) 85 ; see Stenning, Observations on the Supreme Court of
Canada's Decision in R. v. Osborn (1971), 13 Crim. L.Q . 164; Barton,
Abuse of Process as a Plea in Bar of Trial (1973), 15 Crim . L.Q. 437 .
55 R. v. Rourke, [1975] 6 W.W .R . 591 (B .C.C .A.) (leave to appeal
to S.C.C . granted) ; Ewaschuk, op . cit., footnote 23 .

5s The sections of the Criminal Code, supra, footnote 16, which deal
with joinder are ss 496, 518, 519 and particularly s. 520 which permits
but does not compel joinder and allows the court to sever counts, in its
discretion.
57 Friedland, op . cit., footnote 49 ; Friedland, op . cit., footnote 35,
pp . 161-194.
5s Supra, footnote 23, at pp . 733-734 (S .C .R .), 527-528 (C .C .C.),
13-14 (C.R .N .S.), 354-355 (D .L .R .) .
I think it of first importance to recognize that the offences created

by ss 143 [rape] and 146(1) [unlawful carnal knowledge] are separate
and distinct offences and it appears to be common ground that the
latter offence is not included in the former . The fundamental difference
between the two offences is that a conviction under s . 146(1) can
only be sustained if the victim is under fourteen years of age, whereas
the age of the victim forms no part of the offence described in s . 143 .
The provisions of s . 140 also make it clear that consent is no defence
to a charge under s . 146(1), whereas, of course, lack of consent is an
essential ingredient of rape. . . . Consent or lack of consent forms no
part of the offence described in s . 146(l) but it contains an ingredient
which is not included in a conviction for rape, namely, the age of the
1976 CanLIIDocs 14
child victim .
In this passage, Ritchie J., went beyond the basic question under
the "same evidence" test, that is, whether proof of the facts
alleged in the unlawful carnal knowledge count would necessarily
have sustained a conviction for rape . Instead, the learned judge
compared the elements of the two offences and found that each
offence contained an element differentiating it from the other.
Moreover, the "in peril" test would strictly have shown the
offences to be different merely by the additional element con-
tained in the second offence of unlawful carnal knowledge, and
the agreement of counsel that neither was an included offence,-59
without the necessity of considering whether the offence of rape
also contained an additional element. But taken together, these
additional elements made it clear that the offences were distinct
according to both the "in peril" and "same evidence" tests.
In the next paragraph of his judgment, Ritchie J. applied a

much more subjective and difficult criterion. The learned judge
said that the accused had violated two social norms : committing
rape and defiling a young girl. The accused was more culpable
than, say, a rapist of adult women. By the same reasoning, a man
who rapes his sister, having committed incest as well as rape,
would be more culpable than other rapists. Ritchie J., did not
regard the accused's conduct as one act of sexual deviance .
Rather, he said, since the accused had broken two social norms,
both of which were offences, he merited convictions for both
violations :
59 Recent cases on "included offences" are : R . v . Maika (1974), 27

C.R .N.S . 115, 17 C.C .C . (2d) 110 (Ont . C .A .) ; R. v . James (1974), 27
C.R .N.S . 136 (B .C .S .C .) ; R . v . Faer, [1975] 5 W .W.R . 681 (Bask . C .A .)
(s . 236 of the Criminal Code creates two distinct offences -"driving" and
"having care or control"-neither of which is included in the other) ;
R . v. Rinnie (1969), 71 W .W.R . 272, 9 C .R .N .S . 81 (Alta S .C.-A .D .) ;
see also Chasse, op . cit ., footnote 23, at p . 64 .
The situation in the present case is that the act for which the appellant
was convicted of rape also constituted the additional offence of having
sexual intercourse with a female person under the age of 14 years
who was not his wife. The purpose and effect of s. 146(1) is, in my
view, to protect female children under the age of 14 years from
sexual advances leading to intercourse by male persons over that
age (see s. 147), and I cannot subscribe to a result which relieves an
assailant from the consequences of violating a child on the ground
that his act also constitutes the crime of rape o0
In the United States, this criterion for determining whether offen-
ces are the same for double jeopardy purposes has been dubbed
1976 CanLIIDocs 14
"the interest-to-protect" test.ei According to this test, a court
compares statutory offences to determine their similarity or
difference . If the offences are the same, double jeopardy applies
to them . If they differ, these differences must then be weighed
against the basic interests the provisions seek to protect or the
conduct they seek to discourage . The court must decide whether
the norms should be cumulative or which norm should prevail
over the other. Ritchie J., as should be apparent, concluded that
the offences were different and that they should be cumulative .
As will be discussed later, such a test may have a limited place
in the Canadian law of double jeopardy, but it is so vague and
subjective as to be an impractical assurance that convictions are
commensurate with culpability. If the test were applied generally,
double jeopardy protection would be undermined . This is not,
however, to deny that Parliament may make the same act punish-
able as two or more cumulative offences . Ritchie J., did not
identify any objective basis for inferring that such was Par-
liament's intention in relation to rape and unlawful carnal know-
ledge . Laskin J., argued that Parliament's intention, based on the
history of the offences, was to make them alternatives rather than
cumulative .
Another dissenting judge, Martland J., stated that since the
accused had received concurrent sentences, the majority's decision
to reverse the conviction for unlawful carnal knowledge would
not have any practical effect . The learned judge stated caustically :
". . . the only result . . . [of the appeal], if successful, will be to
prevent the addition to the appellant's already lengthy criminal
record of a conviction for the crime of sexual intercourse with
a female under the age of fourteen, not being his wife, which
crime it is clear that he committed.""-' One practical result for
6usupra, footnote 58 .
ui Bassert, op . cit., footnote 45, at pp . 291-293 .
(;=Supra, footnote 23, at pp . 731 (S .C .R .), 525-526 (C .C .C .), 19-20
(C .R .N .S .), 353 (D.L.R .) .
19761 Comments 643
Mr . Kienapple may be an improvement of his chance of parole

by the elimination from his record of the conviction. However, one
would expect that the National Parole Board would not be
influenced by this factor . It may also be that Mr. Kienapple would
avoid classification as a sex deviant, which would mean that
he would not be subjected to such invidious treatment during
his imprisonment as segregation from the other prisoners.
For defendants in general, the Kienapple case does have

practical implications . For example, might an accused who has
1976 CanLIIDocs 14
been charged with two counts arising' out of one act plead guilty
to the lesser count and thus preclude conviction for the greater
count? 63 If the prosecution and the court accept the accused's
guilty plea, the Kienapple case would require that result . How-
ever, there is no obligation owed by a court to convict the accused
on a guilty plea when it is offered.3} The trial judge should record
the guilty plea and proceed with the trial on the more serious
charge to which the accused has pleaded not guilty . If the accused
is acquitted of the more serious charge, the judge may convict
and sentence the accused on the lesser charge to which the guilty
plea -relates . If the accused is convicted of the more serious
offence, Kienapple precludes a conviction for the lesser charge and
the prosecutor should enter a stay in respect of it .s 5
The Cases After Kienappld

Subsequent cases have revealed and clarified some of the
difficulties in the application of this new doctrine, that a court
may not convict an accused more than once for the same
criminal transaction . In Doré v. A.-G. Canada (No. 1) 66 the
63 In Adgey v. The Queen (1973), 23 C.R.N .S . 298, 13 C.C.C . (2d)

117, 39 D.L .R . (3d) 553 (S .C.C .), the court held that a trial judge who
receives a guilty plea has a discretion to permit the accused to withdraw it .
Where the accused is not represented by counsel, the judge must enquire
whether the accused understands the nature of the charge and the effect
of his plea. But where the accused is represented by counsel, even duty
counsel, such an inquiry is unnecessary. Before accepting the guilty plea, the
trial judge may hear evidence to satisfy himself that the charges are
well-founded.
's4 R. v. Cole, [1965] 2 Q.B . 388, [1965] 3 W.L .Re 263, [1965] 2 All
E.R . 29, 49 Cr. App. R. 199 (C.A.) ; R. v. McKay, supra, footnote 46
(not overruled by the Kienapple case on this point) ; R. v. Wozny, [1975]
5 W.W .R . 692 (B .C.S .C .) ; Re Dauphney, [1976] 3 W.W.R . 37 (B .C .S.C.) .
's5 See infra.
66 Supra, footnote 23, at pp . 756 (S .C .R.), 237 (C .R .N .S .), 542

(C.C .C.), 370 (D .L .R .) ; for an excellent discussion, see Ewaschuk, op .
cit., footnote 23 .
accused had been convicted of three counts of receiving bribes .

The counts involved the same time, place and amount . The
accused appealed to the Supreme Court of Canada on the ground
that he should not have been convicted of more than one count.
His argument was partly based on section 11 of the Code, 6'
which provides as follows :lis
Section 11 . Where an act or omission is an offence under more than
one Act of the Parliament of Canada whether punishable by indictment
or on summary conviction, a person who does the act or makes the
omission is, unless a contrary intention appears, subject to proceedings
1976 CanLIIDocs 14
under any of those Acts but is not liable to be punished more than
once for the same offence.
Section 11 was inapposite for two reasons. First, although Fau-
teux C.J.C., Abbott and Ritchie JJ., concurring, did not rely
upon or discuss the point, the prevailing view is that, in the
context of section 11, "punishment" means sentencing which
follows after conviction, rather than conviction." Thus the
section prohibits multiple sentences but permits multiple charges
and multiple convictions. One of the criticisms of the Kienapple
case has been that by prohibiting multiple convictions arising
out of the same act, the case has rendered section 11 useless.
This criticism is unfounded. Section 11 authorizes multiple
prosecutions and permits multiple punishment where Parliament
intends offences to be cumulative. Neither of these aspects
is affected by the Kienapple case. Furthermore, the Kienapple
case has not established an inviolable rule that an accused can
never under any circumstances be convicted of more than one
offence arising out of the same criminal transaction. Therefore,
section 11 continues to have scope as a protection to the accused.
The second reason, which was argued and which Fauteux C.J.C.,
did accept, was that for the purposes of section 11, to determine
whether two offences are "the same", Canadian courts should
continue to rely upon the more conventional tests rather than
the "same transaction" test.'° For this reason the accused could
not rely on section 11, since the offences were not the "same" .
V Supra, footnote 16 .
438 A similar provision is Interpretation Act, 1889, 52 & 53 Viet ., c.
63, s. 33 ; see Archbold, op . cit., footnote 52, para . 3746, p. 150.
(39 Chasse, op . cit., footnote 23, at p. 22 ; Ewaschuk, op. cit., footnote
23, at p. 29 .
-OR . v. Lavoie (1970), 73 W.W .R. 753, [1970] C.T .C. 467, 70 D.T .C .
6113, [19701 5 C.C.C . 331 (Sask . C.A .) ; R . v. Mozel and McCauley, un-
reported, October 1968 (B .C.C .A.) discussed in R. v. McKay, supra,
footnote 46 .
The accused also argued that he could not be convicted

more than once for the same act, citing some of the same cases
that the majority of the Supreme Court had relied upon in
Kienapple. Since the judgments in Kienapple and Doré were
handed down on the same day, it is ironical that the accused's
argument was rejected . After Fauteux C.J .C ., had written and
circulated a draft of his judgment in the Doré case, another
learned judge reminded the Chief Justice of the Kienapple case,
in which he had dissented. Fauteux C.J .C ., altered his reasons
to distinguish Kienapple, virtually restricting it to its facts .
1976 CanLIIDocs 14
Abbott and Ritchie JJ ., concurred with Fauteux C.J .C ., and
Nartland, and Pigeon JJ. dissented. Subsequently, the Supreme
Court of Canada reheard the case (Doré (No. 2)) 71 and upon
the Attorney General of Canada's concession that Kienapple
applied, the court unanimously reversed Doré (No. 1) .72
Côté v. The Queen73 raised for the Supreme Court of

Canada the applicability of the "same transaction" test and res
judicata to a continuing offence. The judgments reveal that at
least a majority of the court has not adopted the "same trans-
action" test in an absolute form . Such a broad application of the
test would be so favourable to the accused as to frustrate criminal
justice.
Having been convicted of robbery,-' and sentenced to a term

of imprisonment, the accused served his time and was released
from prison. Later the police found the accused in possession of
the stolen property, which he had apparently hidden away . He
was charged with possession of stolen property.15 The trial
judge dismissed the charge on the ground that a person who
had previously been convicted of theft (such as by robbery)
could not be convicted of unlawful possession of the same property
which was the subject of the theft conviction . The rationale is
that possession by the original thief is merely a continuation of
the act of theft. Having convicted the accused of theft, the court
71 Doré v . A . G . Cati . (No . 2), [1975] 1 S .C.R . 78-', (1974), 27

C.R .N .S . 258, 17 C.C .C. (2d) 359, 46 D .L.R . (3d) 703 .
72 Supra, footnote 23 .
73 [19751 1 S .C .R. 303, (1974), 18 C .C.C . (2d) 321, 26 C .R .N .S . 26,

49 D .L .R. (3d) 574 .
74 Criminal Code, supra, footnote 16, s . 302(d) .
75 Criminal Code, ibid ., s . 312(l) .
should not convict the accused for continuing to act as owner of

the property which he had illegally taken.76
However, in the Supreme Court of Canada, a majority held
that the accused's possession was, on the facts, sufficiently
separated in time and place by the conviction and the period
of imprisonment, from the original taking, to permit the accused
to be convicted of both robbery and possession. Their Lordships
were concerned that otherwise an accused would enjoy complete
immunity from conviction for possession of stolen property after
having been convicted of the theft, in spite of egregious circum-
1976 CanLIIDocs 14
stances. In the leading judgment, Fauteux C.J.C., said : 77
. . . there is . . . no bar to a thief who has been convicted and is then
found in possession of the thing stolen being in theory, in certain
circumstances, and like any other person, convicted of unlawful posses-
sion . The fact that his possession is a common ingredient of both of-
fences is no reason to exclude or ignore what is actually the crucial
factor distinguishing one from the other, and is of the essence of
their respective nature . In the commission of theft this crucial
characteristic consists in the fact of the taking or in the fact of
the conversion or constructive taking, two facts having a defined
basis in time and place. In the case of unlawful possession this crucial
characteristic consists in the fact that the offence can chronologically
only be committed after that of theft, and that it is the guilty
knowledge of the unlawful origin of the thing which then constitutes
the offence, which may be continued for an indefinite time in one
place or, successively, in several different places . In my opinion one
cannot validly maintain, on the one hand, that continuation of the
thief's possession- whether for weeks, months or years- is always
a continuation of the act of theft or, if one prefers, a continuation of the
commission of the theft, and one cannot, on the other hand, maintain
that at the very time and place in which the thief takes or converts
the thing, and so acquires possession of it, he is committing the offence
of unlawful possession . . . . Determination of the time when the offence
of theft is consummated and the offence of unlawful possession . . . so
far as the thief is concerned, begins, cannot be resolved in the abstract .
However, the difficulty that may exist in determining this time, according
to the circumstances of each case, does not affect the substance of
the law.
While, in general, a thief should not be convicted of both theft
and unlawful possession, 17 A there must be exceptions to that prin-
ciple. In the passage quoted above, Fauteux C.J.C ., confined his
76 R. v. Siggins, [19601 O.R. 284, 32 C.R. 306, 127 C.C .C . 409 (Ont .
C.A .) ; contra, Williams v. Hallain (1943), 112 L.J .K .B . 353 ; see Fried-
land, op . cit., footnote 35, pp . 206-208.
77 Supra, footnote 73, at pp . 310-311 (S .C.R .), 325-326 (C .C .C.),
32 (C .R .N .S .), 579 (D .L .R.) .
vTA R. v. Bellireau (1975), 12 N,B .R. (2d) 422 (N .B .S .C .A.D .) .
19761 Comments 647
reasons to the facts of the case and did not attempt a comprehen-
sive analysis -of the bases on which continuing crimes may be
divided into separate offences for double jeopardy purposes .
Conviction, imprisonment and the lapse of three years broke the
continuity in time and place of the theft and unlawful possession .
It is more difficult to conclude, -on the facts, that the accused's
intent had somehow changed and it would seem that the majority
either simply disregarded this difficulty or felt that the accused's
failure to rehabilitate himself while in prison added to his cul-
pability .
1976 CanLIIDocs 14
Only Laskin J., the dissenting judge, would have acquitted
the accused. According to the statutory definition of "posses-
sion", 78 the accused had remained continuously in possession of
the stolen property while it was hidden and he was in prison .
Thus, Laskin J., argued that the accused ought to be acquitted
either because the possession flowed from the original taking for
which the accused had been convicted or because Kienapple's
case precluded more than one conviction arising out of a criminal
transaction .
From the C6té79 case, one may conclude that where the
"same transaction" test and res judicata would defeat what judges
feel are the interests of justice, they will circumvent or ignore the
Kienapple case . The criticism that the "same transaction" test is
a defendant's rule seems not to have been borne out.
This is further illustrated by an Ontario Court of Appeal

decision, R. v. Lapierre .8° The court quashed the second of two
convictions, because of Kienapple, but went on to say that in
fixing sentence on the first conviction, it was proper to have
regard to the accused's guilt on the other charge . When deciding
sentence, a court should look at the whole of the accused's con-
duct, including aspects which are not the basis of a conviction.
The accused had pleaded guilty and been convicted of both

criminal negligence causing death and impaired driving. Even
though the conviction for impaired driving could not stand after
Kienapple, in fixing sentence for criminal negligence, it is only
reasonable for the court to consider the accused's intoxication as
an aggravating circumstance .
78 Criminal Code, supra, footnote 16, s . 3(4) .

80 (1974), 29 C .R .N .S . 353 (Ont . C .A .) .
On the other hand, trial courts should not draw from the
reasoning an invitation to increase an accused's punishment
merely because more than one offence has been committed and
Kienapple applies to preclude multiple convictions.
In R. v. Boyce,sl the accused was convicted of two offences :
rape and choking (the complainant) with intent to commit an
indictable offence . The Ontario Court of Appeal held that since
both offences arose out of the same criminal transaction, the
conviction for choking should be quashed. The decision extended
1976 CanLIIDocs 14
the application of the "same transaction" test. In the Kieltapple
case, the accused had been convicted twice for one sexual act.
Here, the act of choking the complainant was distinct from raping
her. However, the accused's motive for choking the victim was
to facilitate the rape . In the circumstances, choking was incidental
to rape and part of one criminal transaction, to which the rule
against multiple convictions logically ought to apply .s~
In R. v. Nicholson,$-3 the accused was charged with and
found to have committed multiple tax offences over a period .
The learned trial judge, sitting without a jury, held that Kien
apple applied and said : "I will therefore ask [the prosecutor] to
elect the counts on which he wishes a conviction registered ."s 4
Because the counts were subject to the same penalties, the
prosecutor's right of choice would not work an injustice. How-
ever, it is desirable to eliminate prosecutorial choice at this stage
of the proceeding. To avoid this problem, a trial judge sitting
without a jury should consider separately each count of a multi-
count prosecution arising out of the same act. Like the jury, the
judge, even sitting alone, should apply Laskin J.'s procedure
and not go on to find the accused guilty of subsequent counts
81 (1974), 28 C.R .N .S . 336, 7 O.R . (2d) 561, 23 C .C .C . (2d) 16

(Ont . C.A .) . Cf. R. v. Simpson (1975), 25 C.C .C . (2d) 102 (Ont . Co . Ct),
obiter dictum : res judicata applies to separate "acts" comprised within a
"transaction" but not to the "transaction" as a whole .
8 2 Similarly, in R. v. Gayle Air Ltd and Belluz (1974), 28 C .R .N.S .
114 (Man . Prov . Ct) the accused was charged with two counts : (1)
flying without a licence and (2) flying without a certificate . Because the
accused could not obtain a licence until he had a certificate, the learned
judge held that the two offences had a common element and the accused
could be convicted of one only; see also the dissenting judgment of
Laskin J ., in Côté, supra, footnote 73 .
83 (1975), 75 D .T.C . 5095 (Ont . Prov . Ct) ; cf R. v. Kidd (l974),
74 D .T .C . 6574 (Ont . H .C .), and see, R . -v. Koldenhof, [l9751 C.T.C .
554, 75 D .T.C . 5386 (Ont . Prov . Ct) .
84 Ibid ., at p. 5l09 .
if the accused is convicted of a previous count. This would avoid

any possibility of choice, either by the judge or the prosecutor,
at the end of the trial, as to the count for which the accused is
convicted. The judge could then consider whether the evidence
on the other counts bears on sentence.
In 12. v. Kehoe,s 5 the Kienapple case was distinguished.

The accused, who had illegally taken his child, was pros-
ecuted for abduction.ss Previously, a court had awarded custody
to his wife . For the same act of abduction, his wife had com-
1976 CanLIIDocs 14
menced civil proceedings for contempt against him, which had
been dismissed, prior to the trial for criminal abduction. At
the criminal trial the accused raised the defence of res judicata,
relying upon the Kienapple case . The learned judge, correctly
it is submitted, rejected the defence since contempt was neither
criminal nor quasi-criminal but rather, a civil matter .
Finally in R. v. Grekes 7 the accused was convicted of

driving with blood alcohol in excess of .08. By a subsequent
information based on the same driving, the accused was charged
with and convicted of driving while disqualified . A learned judge
of the Saskatchewan District Court upheld the second convic-
tion since the acts were separate and distinct, even though they
contained a common element. With respect, this reasoning simply
rejects the logical implications of the "same transaction" test
and reverts to the "in peril" and "same evidence" tests. The
learned judge refused to interpret the Kienapple case as creating
a defence where the offences charged were dissimilar.
In his reasons in the Kienapple case, Laskin J., did not

require anything more for the defence of res judicata to apply
than that the offences arose out of the same act or transaction .
However, as has already been mentioned, Laskin J., did trace
the history of the offences charged to argue that Parliament
intended them to be alternative . The qualification that offences
must be of the same nature as is implied by the Greke case,
and by a recent decision of the English Court of Appeals" is a
much more subjective and potentially more drastic limitation of
the "same transaction" test and is logically incompatible with it.
85 (1974), 21 C .C .C . (2d) 544 (Ont . Prov. Ct) .

$6 Criminal Code, supra, footnote 16, s. 250 .
87 [1976] 2 W .W .R . 340 (Sask . D .C .) .
88 R . v . Haddock, The London Times, Feb . 5th, 1976.

Conclusion
At their narrowest, Laskin J.'s reasons in the Kienapple
case have given fresh impetus to the rule precluding multiple
convictions and the "same transaction" test, in the Canadian
law of double jeopardy.
If Canadian judges broadly apply the decision, it may pro-
duce innovative solutions to other problem areas of double
jeopardy .
1976 CanLIIDocs 14
For example, in a recent English case,-19 the accused had
been prosecuted and convicted of causing grievous bodily harm
with intent to do so. After the trial, the victim died. The accused
was re-prosecuted for murder, as permitted by R. v. Thomas .9 °
The court held that issue estoppel applied against an accused
as well as in his favour . In other words, if an accused had pre-
viously been convicted, and was subsequently prosecuted for
another offence arising out of the same criminal act, he was
estopped from raising the issues which had been determined
against him at the first trial. The better view is that since the
courts introduced issue estoppel into criminal procedure to
protect an accused, it is carrying a zeal for logic and consistency
to absurdity to apply the doctrine in the Crown's favour .91 In
Canada, the above situation would presumably be covered by
the Kienapple case so that irrespective of issue estoppel, the
Crown could not obtain a conviction of the later charge . Laskin
J.'s discussion of R . v. Thomas, is unclear as to whether, in
his words, "a new relevant element not present when the first
conviction occurred" but arising out of the same transaction
is nevertheless res judicata, such as death of the victim after the
accused's conviction of assault. And, issue estoppel is broader
than the rule against multiple convictions because issue estoppel
89 R. v, Hogan, [19741 Q.B . 398, [19741 2 All E.R . 142, [19741 2

W.L .R . 357, 59 Cr . App. R. 174 (Leeds Crown Ct), criticized in (1974),
124 New L.J . 819; see also S. v. Gabriel, 1971 (1) S.A . 646 (Rhodesia
A.D .) .
so Supra, footnote 44 .
si M . Friedland, Issue Estoppel in Criminal Cases (1967), 9 Crim.
L.Q. 163, at pp . 208-212, Friedland, op . cit., footnote 35, pp . 153-156;
Mundell, The Crown and Res Judicata, in Legal Essays in Honour of
Arthur Moxon (1953), p. 208, at p. 236; Comment, The Use of Collateral
Estoppel Against the Accused (1969), 69 Col. L. Rev. 515 ; D. Lanham,
Issue Estoppel in the English Criminal Law, [1970] Crim . L. Rev. 428,
at pp . 442-444; see also, Simpson v. Florida (1971), 403 U.S . 384
(where the U.S .S.C . adopte d the view that issue [or collateral] estoppel
should not apply against an accused) .
1976] Comments 651
neither is limited to offences arising out of the same transaction9'

nor requires the offences to be identical, in the conventional
sense of the "same evidence" and "in peril" tests. Thus Kienapple
may not in all cases protect the accused against issue estoppel
in the Crown's favour. Therefore, the question whether a previous
conviction is binding and conclusive against the accused of the
issues decided therein, should also be resolved .
Another problem, in a federation such as Canada, where
legislative jurisdiction is divided between the provincial and
1976 CanLIIDocs 14
federal Parliaments, is that an individual may be prosecuted suc
cessively for violations of both federal and provincial statutes ;
arising out of the same criminal transaction.93 The Canadian
courts have held that since federal and provincial statutes require
proof of different facts, the offences are different under the
"same evidence" and "in peril" tests. However, the "same trans-
action" test would ameliorate the hardship of such federal-
provincial re-prosecution by precluding multiple convictions . An
obiter dictum suggests that the Kienapple case would apply to
quasi-criminal, that is, provincial, convictions.94
If the Kienapple case does not apply in this area and partic-
ularly if it extends, as some authority suggests, to a re-prosecution
following an acquittal for the same act, it could prevent legitimate
federal and provincial multiple prosecution. Some version of the
"interest-to-protect" test has been recommended" to , determine
those few situations where federal and provincial interests are
sufficiently distinct to justify successive prosecution. Such a rule
must be flexible enough to weigh the rights of the individual
against the interests of the jurisdictions .
92 R . v . Gushue (No . 5) (1975), 30 C.R .N.S . 184 (Ont . Co . Ct),

aff'ing R . v . Gushue (No . 1) (1973), 30 C .R .N,S . 154 (Ont . Prov. Ct) ;
R. v. Humphrys, [1975] 3 W .L .R. 81, [1975] 2 All E .R. 1023 (Eng . C .A .) ;
R . v . Holmes (1974), 25 C .R.N.S. 154 (Ont . Co . Ct) ; see also, Comment,
Perjury by Defendants : The Uses of Double Jeopardy and Collateral
Estoppel (1961), 74 Harv . L. Rev. 752 ; K. L. Chasse, Issue Estoppel and
Perjury by the Accused (1974), 25 C .R.N .S. 164 .
93 E.g., R . v . Leier and Predy (1970), 74 W .W.R . 339, 11 C.R .N .S .
344 (Alta S.C .) ; Friedland, Double Jeopardy and the Division of
Legislative Authority in Canada (1967), 17 U . of T. L.J . 66 ; Friedland,
op. cit., footnote 35, pp . 405-428 ; Comment, Double Prosecutions by State
and Federal Governments : Another Exercise in Federalism (1967),
80 Harv. L . Rev . 1538 ;,J . S . Raynes, Federalism Vs . Double Jeopardy : A
Comparative Analysis of Successive Prosecution in the United States,
Canada, and Australia (1975), 5 Calif . W. Int'l L.J . 399 .
94 R . v . Kehoe, supra, footnote 85, at p . 548 .
95 E.g ., T . R. Bossert, op. cit., footnote 45, at p . 302 .
6)52 LA REVUE DU BARREAU CANADIEN [VOL . LIV
The Kienapple case may become an effective supplementary

protection to the relatively limited plea of autrefois convict . This
development depends upon how the courts apply the "same trans
action" test to such successive prosecutions as : (1) conspiracy
and the crime that is the abject of the conspiracy, 9g (2) assaults
of various degrees and other crimes ,97 (3) continuing crimes, 98
(4) crimes which involve more than one victim99 and, (5) attempts
and various substantive crimes.l 0 o
Finally and perhaps most important, the Kienapple case
1976 CanLIIDocs 14
should cut down the latitude of prosecutors successively to pros-
ecute an accused for multiple offences. Since a conviction for
one offence bars further convictions for offences arising out of
the same transaction, a prosecutor's tactical advantage in pros-
ecuting separate offences has been whittled away. The decision
points the way to compulsory joinder of offences arising out
of the same transaction, as mandated by the majority judgments
in the Connelly case. One Canadian judge has already extended
the Kienapple decision to that point on the basis of res judicata
as a doctrine distinct from, and in addition to, abuse of process,
by holding that the Kienapple case precludes conviction of an
98 See also, R . v . Jones and others (1974), 59 Cr. App . R. 120

(C.A.) ; R . v. Feeley, McDermott and Wright, [1963] 1 O.R. 571, 38 C.R.
321, [1963] 3 C.C.C. 201, 40 D.L.R. (2d) 563 (S.C.C.) ; R . v. Bloomfield,
Cormier and Ettinger (1973), 10 C.C.C. (2d) 398, 21 C.R.N.S. 97
(N.B.S.C.A.D.) .
97 R. v . Harper, [1950] O.W.N. 791, 98 C.C.C. 84, 11 C.R. 31 (Ont.
C.A.), but see, R . v . Spence and Scott, R . v. Kinch, supra, footnote 46.
9s Côté v . The Queen, supra, footnote 73; R. v. K. C. Irving et al .
supra, footnote 32 ("same transaction" applied to offences committed
over a period of twelve years) ; R. v. Rodriguez (1974), 22 C.C.C.
(2d) 302 (B.C.C.A.) (possession of narcotics, interrupted for five weeks
by police custody of the drugs - by obtaining further drugs, the
accused had terminated the earlier possession) . And see R. v.
McCaw, Warnhotz, Frame and Morrison (1974), 15 C.C.C . (2d) 321 (Ont.
C.A.) (crime committed during flight after another crime, held consecutive
sentences warranted) ; R . v . White, Dubeay and McCullough (1974),
27 C.R .N .S. 67, 16 C.C.C. (2d) 162 (Ont. C.A.) (gang rape, two acts of
intercourse, consecutive sentences) ; R. v. Vickers (1963), 41 C.R. 235
(B.C.C.A.) (possession, followed by transportation and distribution of the
same drugs ; possession and trafficking distinct acts) .
99 Where the accused has been acquitted of an offence involving
one victim, issue estoppel may provide a defence to subsequent prosecutions
in respect of other victims : R . v. Carlson, [1970] 3 O.R. 213 (Ont . H .C.) .
loo R . v. Hunt (1972), 6 C.C .C. (2d) 501 (Ont. C.A .) ; ss 587, 588
of the Criminal Code, supra, footnote 16, prohibit convictions of both an
attempt and the substantive offence to which the attempt was directed, but
do not preclude convictions for attempt and another substantive offence .
offence after an acquittal for a different offence, based on the

same act, where the prosecutions are successive."" Another recent
case has limited this aspect of res judicata : the defence would be
available upon an acquittal only where the aquittal" was on the
merits and not merely a technical dismissal of the charge without
evidence . 102 Considerable reluctance to allow a defence of res
judicata based upon an acquittal was shown by the court's holding
that the accused had failed to prove that the acquittal and the
subsequent charge were based upon the "same transaction" .
1976 CanLIIDocs 14
A. F. SHEPPARD*
LAW REFORM COMMISSION OF CANADA-POLITICAL IDEOLOGY

OF CRIMINAL PROCESS REFORM .-The approach of the Law
Reform Commission of Canada when dealing with matters which
may be conveniently subsumed under the. general rubric . of. "the
criminal process", has been avowedly philosophical,' and it is-
within the context of the philosophy revealed by the Commis-
sion's working papers on the criminal process that any debate,
must take place over the preferable approach to the task of
criminal process reform in Canada. This comment has two,
rather limited, purposes. The first is to reveal the political
ideology which is common to the Commission's published views
upon the problem of social deviance and the appropriate reaction
to it in a modern, democratic, capitalist society. The second is
to examine that ideology in the context of current political-
criminological debate which has begun to forcefully question
many of the basic assumptions of traditional criminology .
101 Supra, footnote 43 and see R. v. Kehoe, supra, footnote 85;

R . v . Baxter (1975), 33 C.R.N.S. 22 (Ont. C.A.) (accused charged
with three counts of attempted murder and with criminal negligence;
jury acquitted on attempted murder, but convicted on the included
offence of discharging a firearm with intent to wound and criminal
negligence; on appeal, acquittal on the charge of criminal negligence as
res judicata) ; R. v . Wright (1976), 9 O.R . Summaries of Reasons for
Judgment 163 (Ont. C.A.).
102 R . v . Osborne (1975), 11 N.B.R. (2d) 48 (N.B.S.C.A.D.).
A. F. Sheppard, of the British Columbia Bar, and of the Faculty of
Law, University of British Columbia, Vancouver . The writer acknowledges
gratefully the very helpful suggestions of Professor James Taylor, of the
Faculty of Law, University of British Columbia.
1 See, for example, Barnes, The Law Reform Commission of Canada
(1975), 2 Dal. L.J. 62, at pp. 72-73, in which the philosophical orientation
of the Commission is discussed .
In keeping with the approach of the Commission itself, it

is not intended here to survey comprehensively the totality of
the Commission's papers,= nor to discuss in full legal detail the
specific recommendations that the Commission has not infre-
quently made . Rather, it is intended to identify a common ideo-
logical basis revealed by these working papers and in so doing,
to open for further debate the real philosophical questions at
issue with which reform of the criminal process must be con-
cerned and which the Commission has signally failed to consider .
The criminal law has long been a matter for politically expedient
1976 CanLIIDocs 14
decisions, principally by lawyers, and, as the Commission itself
has pithily commented:3
. . .law is ultimately a branch of politics. . . .
An Ideology Revealed : Selected Quotations from the Working
Papers
The working papers published by the Commission abound
in statements which, although undeniably vague, reveal to the
researcher a common ideological thread . For example, the Com
mission states with respect to proposals to compensate certain
victims of certain crimes :4
. . . the Commission is of the view that one of the purposes of the
criminal law is to protect core values . At the basis of any society is a
shared trust, an implicit understanding that certain values will be
respected.
In the conclusion to that paper: 5
. . . [this paper] recognizes the contribution the criminal law can
make through sentencing and dispositions to preserving that mutuality
or shared trust that is the basis of much of civilized society.
The working papers from which material was drawn for this comment
were : Law Reform Commission of Canada, Working Paper 2, The
Meaning of Guilt (Criminal Law : Strict Liability), February 1974 ; Law
Reform Commission of Canada, Working Paper 3, The Principles of
Sentencing and Dispositions, March 1974; Law Reform Commission of
Canada, Working Paper 4, Discovery, (Criminal Procedure), June 1974 ;
Law Reform Commission of Canada, Working Paper 5 -}- 6, Restitution and
Compensation, Fines, October 1974 ; Law Reform Commission of Canada,
Working Paper 10, Limits of Criminal Law (Obscenity : a test case),
1975 ; Law Reform Commission of Canada, Working Paper 16, Criminal
Responsibility for Group Action (1976) .
3 Working Paper 10, ibid ., p. 41 . See also Quinney, The Social Reality
of Crime: A Sociology of Criminal Law in Akers and Hawkins, Law and
Control in Society (1975), p. 76 : ". . .law in operation is an aspect of
politics . . . ...
4 Working Paper 5, op . cit., footnote 2, p. 17.
5 Working Paper 5, ibid., p. 25 .
1976] Comments 655
The- working paper on obscenity and the limits of the crim-

inal law concerned a similar philosophy :
But what is society, if not a cooperative venture? As such it can't
succeed unless its members are committed to doing what will make
it succeed and to avoid what will make it fail. They have to be
committed to certain valuesb
Certain values are essential to any society. Without them no society
could survive7
And there are others which, though not essential to any society, are
necessary far our society-they help to make it the sort of society
it is . So when such values are contravened and threatened we call into
1976 CanLIIDocs 14
play the use of the criminal law.
When values are threatened, the criminal law serves various purposes :
it provides a response, articulates the values threatened, helps to
inculcate those values, and provides the rest of us with re-assurances
Finally, from the working paper on the principles of sen-

tencing and dispositions :9
. . . it is suggested that society's interest in having certain values upheld
and protected can often be met by giving primary attention to the
injured victim . . . .
Behind this collection of vague and superficially innocent

statements lies a wealth of undisclosed and undiscussed assump-
tions about the nature of Canadian society, and democratic
society in general, as it is and as it should be ; about the nature
of crime and the criminal, about the internal validity of politically
constituted, economically determined legal authority, and about
the nature of social and legal authority itself . These, and other
examples which will follow,"° point consistently to what may be
loosely called a liberal-positivist ideology,"" which fails to ques-
tion the most fundamental bases of the criminal process in a
democratic capitalist society and the faiths which underlie
them."2 This failure to, question, combined with the failure to
give written consideratin to present debate -on these topics, has
led to the bankruptcy of the Commission's philosophical approach
s Working Paper 10, ibid., p . 21 .

7 Working Paper 10, ibid ., p . 21 .
s Working Paper 10, ibid., p . 36 .

9 Working Paper 3, ibid., p . 2 .
"0 dnfra, footnotes 77-79, 82-85, 87 .
"See infra, footnotes 24-26 .
"2 See Taylor, Walton and Young, Critical Criminology in Britain :
Review and Prospects in Taylor, Walton and Young, eds, Critical
Criminology (1975), pp. 14 and 56 : "The project, then, must be to build
a materialist criminology which flows out of a materialist analysis of law
in propertied, capitalist societies ." See also infra, footnote 15 .'
656) LA REVUE DU BARREAU CANADIEN [VOL . LIV
to criminal process reform . This is explicit in the working paper

titled "discovery", in which it is said :1 3
. . . to assert that "justice and liberty depend not so much on the defini-
tion of crime as on the nature of the process . . . designed to bring the
alleged offender to justice" necessarily assumes that society is justified
in repressing certain acts by the use of the criminal process . . . . What
is the aim and purpose of criminal law? Is its purpose to protect society,
or to reduce crime, or to rehabilitate offenders? Or is its purpose a
combination of all three of these, together with a recognition of
society's right, indeed duty, to take note of an offence, to not allow
1976 CanLIIDocs 14
it to go unchecked, and in this way to affirm, clarify, and support basic
values? . . . However, it is unnecessary, perhaps even unwise, to go
beyond the mere statement of these basic questions.
Quite apart from the naive political equation of "society"

and "state", and quite apart from the failure of the author to
perceive that the discussion of these fundamental questions
inevitably determines the nature and scope of the criminal
process and its reform,14 the failure to question must result in
severe doubt being cast upon the worth of the philosophical
approach embraced by the Commission, and the recommenda-
tions which flow from that approach. Indeed, failure to question
and failure to recognize the true basis of current political-crimino-
logical debate, and the consequent adoption of the existing social
environment as a whole, results in the Commission accepting the
status quo in substance of the social order and all that it implies .15
13Working Paper 4, op . cit., footnote 2, pp . 1-2. Emphasis added.

14See, for example, the implications for criminal procedure reform
which conflicting models of society and social authority produce in
Rapoport, Theories of Conflict Resolution and the Law in Friedland,
ed ., Courts and Trials : A Multidisciplinary Approach (1975), pp . 23-39,
in which the adversary process of justice is examined .
15 Acceptance of the status quo is a recurrent criticism of the liberal-
positivist ideology . See, for example, Taylor, Walton and Young, The
New Criminology (3rd ed ., 1975), p. 5 : ". . . social contract theorists left
the moral and rational supremacy of the bourgeoisie unquestioned ." ;
Quinney, Critique of Legal Order (1974), p. 3 : "The political failure
of positivist thought, as related to its intellectual failure, is its acceptance
of the status quo." ; Krisberg, Crime and Privilege: Toward A New
Criminology (1975), p. 18 : "The standards of practicality are always
taken from those who rule and who wish to preserve their status quo." ;
Taylor, Walton and Young, op . cit., footnote 12, pp . 10, 22 ; Unger, Law
in Modern Society : Toward A Criticism of Social Theory (1976), p. 33 :
"Moreover, by suggesting that the evaluation of conduct does and must
ultimately rest on consensus, it appears to sanctify whatever standards
happen to prevail in a given collectivity ."
Assumptions Concerning the Nature of Social Authority: "Core

Values" and the Universality of Moral Consensus
. . . the questions of how authorities become authorities, and the
ways in which they translate legitimacy into legality is central: for
unless these questions are understood, we are certainly left . . . with
an inevitabilist [sicl view of bourgeois society.16
The essential starting point for the identification of the

political ideology (defined as a political philosophy as to the
1976 CanLIIDocs 14
ideal nature of society) underlying the published views of the
Commission is to be found in the way in which the Commission
regards society and social authority in the ideal state with which
the Commission is philosophically concerned. It is submitted that
the Commission has adopted the so-called value-consensus model
of society which is characterized by the possession of two major
premises : that there exists in society a fundamental agreement as
to the values which the society wishes to, in some way, uphold :
and that that consensus is reflected in the law making, law
applying and law, interpreting practices of political authority. 17
This is evident when the Commission speaks, as it is wont to do,
is Taylor, Walton and Young, op . cit., footnote 12, p. 46 .

17 The model is traceable to Beccaria, Essays on Crimes and Punish-
ments (1804), pp. 5-6. See also Ross, Social Control, (1901), pp . 56-75,
106-125; Sumner, Folkways : A Study of the Sociological Importance
of Usages, Manners, Customs, Mores and Morals (1906) ; Durkheim, The
Division of Labour and Society (1964) ; Durkheim, Suicide. A Study in
Sociology (1967) ; all of whom arguably adopt a consensus model. For
critical accounts of the consensus model, see Quinney, ed ., Crime and
Justice in Society (1969), pp. 20-25; Quinney, op . cit., footnote 3,
pp . 8-13 ; Ricci, Community Power and Democratic Theory : The Logic
of Political Analysis (1971), esp. at pp . 10-13 ; Hills, Crime, Power and
Morality : The Criminal Law Process in the United States (1971), pp . 3-4;
Chambliss and Seidman, Law, Order, and Power (1971), pp. 17, 40-52;
Young, Working-class Criminology in Taylor, Walton and Young, eds,
op . cit., footnote 12, p. 64; Taylor, Walton and Young, op . cit., ibid., p. 10 ;
Krisberg,. op . cit., footnote 15, pp . 68-70; Taylor, Walton and Young, op .
cit., footnote 15, pp. 1-3, 14, 31-32; Unger, op . cit., footnote 15, pp. 30-31 .
Taylor, Walton and Young, op. cit., footnote 15, at p. 14, note 15, com-
ment : "The attempts by the liberal positivists, therefore, to arrive at a moral
yardstick on which to build a positive science ultimately concerned with
the diminution of unwanted behaviour, rests on assumptions that there is a
more or less prevalent consensus on the nature of morality ; that this
morality can be described . . . and that the law in some way can be
reformed . . . to ensure that it represents the morality . . . described."
of "certain values","' "core values", 19 "society's interest",= 0 "shared

trust"21 and "implicit understanding" . 22
The identification of the model carries with it the identifica-
tion of other characteristics of the model, and hence a more
complete picture of the political philosophy common to all the
Commission papers here under consideration. For example, the
value-consensus model carries with it the belief that political
social authority, and hence norm creative: deviance creative and
deviance controlling authority is derived from continuing con-
1976 CanLIIDocs 14
sensus among the members of society about the most desirable
aspects of that society. 23 The "social contract" which emerges as
a result of the consensus takes the form of an initially limited
surrender of personal liberty and freedom to the State in exchange
for various forms of security provided by the controlled use of
authoritative force.24 This view of the basis of society leads
naturally to egalitarianism, 25 for all sign equally and all equally
agree to surrender liberty. It leads also to the view that society
has the right, and duty, acting through the government of the day,
to solve what are perceived to be current social problems by
direct legislative and executive action . This is characterized in
modern political terminology as a fundamentally liberal view of
the basis of modern democratic capitalist society. 26
is Op . cit ., footnotes 4, 6, 7, 9 .
19 Op . cit ., footnote 4 .
=''D Op . cit., footnote 9 .
21 Op . cit., footnotes 4, 5 .
22 Op. cit ., footnote 4.
23 See the material cited supra, footnote 17 .
24 See Beccaria, op . cit ., footnote 17, p . 5 : "The sum of all these
portions of liberty of each individual constituted the sovereignty of a
nation ; and was deposited in the hands of the sovereign . . . ."
See also Akers and Hawkins, op . cit ., footnote 3, pp . 7, 44-49 . As to the
central importance of the devolution of force to social authority, see infra.
-25 See, for example, Lenski, Power and Privilege (1966), p . 11,
in which the author notes the emphasis on legal equality in classical

liberalism and the emphasis on natural equality in Marxism and radical
political theory ; Krisberg, op . cit., footnote 15 p . 48, quoting Balbus,
The Dialectics of Legal Repression (1973 ), p . 4 : " . . . the crucial significance
of equality before the law as a legitimating principle of the liberal state ."
See also Taylor, Walton and Young, op. cit., footnote 15, pp . 3-4 ; Taylor,
Walton and Young, op. cit ., footnote 12, p . 10 :"The Fabian project can
indeed be seen as the creation of such equal opportunity . . . in order that
a genuinely utilitarian society, based on a universally-appropriate social
contract, could be created ."
26 See, for example, Ricci, op . cit., footnote 17, p . 8 .
19761 Comments 659
The ideology involved, once discovered, may be variously

labelled, and for introductory purposes has already been titled
"liberal-positivist" . Similar philosophies, or groups of philos
ophies, have been called "utilitarian",='T "Fabian" ' 28 or even
"conservative",29 but no two labels are mutually exclusive,
commonly accepted, or free from emotional taint. It would be an
error to attempt to classify the descriptive characteristics of the
political world-view, described above, except on an a priori
basis . The shorthand "liberal-positivist" has been adopted here
to emphasize the relationship between a political view of the basis
1976 CanLIIDocs 14
and nature of society and a discipline of criminology based upon
that view and in which "liberal" politicians and political thinkers
have placed a great deal of faith.-"'
The Commission's ideology of social consensus bears a

number of the characteristics -of classical Liberalism. Ricci in his
work on community power and democratic theory, has pointed
out that philosophically, classical Liberalism and its derivatives
evolved as a contradictory force to a conservative political philo-
sophy, explanatory and protective of the old ideas and practices
of feudal monarchy :31
. . . in general, Liberal tenets were inversely related to those of the
political culture Liberals sought to replace . . . . One must seek the logic
27 By Taylor, Walton and Young, op . cit ., footnote 12, pp . 9, 15 ; Taylor,

Walton and Young, op . cit ., footnote 15, p . 3 .
28 See, for example, supra, footnote 25 .
29 By Unger, op . cit., footnote 15 .
3'o This relationship has not been developed in the text as it must
be regarded as fairly well established . See, for example, Quinney, op . cit.,
footnote 15 ; Rapoport, op . cit ., footnote 14 ; Krisberg, op . cit ., footnote 15,
pp . 15-16 : "Critics of the Òld' Criminology have commented on how
that field has prostituted itself . . . fostered and disseminated the hegemonic
concepts of the ruling class . . . .", and p . 68 ; Taylor, Walton and Young,
op . cit ., footnote 12, p . 8 ; Taylor, Walton and Young, op. cit ., footnote 15,
pp . 14 and 31 . Young, op . cit ., footnote 17, p . 71, makes a clear connection :
"The positivists had declared there to be a consensus to which all normal
men adhered ." See also Reasons, Paradigm Conflict in Criminology in
Riedel and Thornberry, ed ., Crime and Delinquency : Dimensions of
Deviance (1974),- pp . 4-11, esp . note 3, p . 12 ; Phillipson, Understanding
Crime and Delinquency (2nd ed ., 1974), pp . 1-21 ; Sykes, The Rise of
Critical Criminology (1974), 65 J .C.L.C . 206 ; Shover, Criminal Behaviour
As Theoretical Praxis (1975), 10 Issues in Criminology 95, at pp . 96-97 .
al Ricci, op. cit., footnote 17, p . 17 : "The Liberal tenets marked a
middle-class resolve to question the legitimacy of a society controlled by
hereditary aristocrats ; the Conservative tenets reflected an aristocratic
need to justify a dominant role in that society."
of Liberalism in Conservatism, in the ideas and practices of the old

aristocratic society that Liberalism opposed . 32
The persuasive value of this theory is enhanced by the
Commission's working paper on the concept of restitution, to
which concept the Commission has given its wholehearted sup
port."; Having pointed out that the concept of restitution as a
major and widely-used "sentence" was basic to the primitive
equivalents of a criminal process, the working paper then
explains that the practice fell into disfavour and largely dis-
appeared, partially because of the creation of the crime of com-
1976 CanLIIDocs 14
pounding a felony .34 Compounding an offence is still a crime in
Canada, and its gist is to criminalize conduct leading to the
concealment of a crime by satisfaction obtained through private
settlement .35
The modern tendency is to rationalize the compounding
offence by stating that its (laudable) purpose is to prevent a
criminal from being sheltered from the public (deterrent) light
and public sanction through the (consensus) legal system.36 The
original bases for the enactment of the crime were more likely
to have been the following . First, the feudal monarchs of England
wanted to replace the old, local, restitution based criminal process
of Anglo Saxon and early Norman England, increasingly being
taken over by local barons, with a centralized, unified, royal
Ricci, op . cit., ibid., pp . 13-14.

c32'
33 Working Paper 5, op. cit., footnote 2 .

3416id ., pp. 8-9.
3:i Criminal Code, R.S .C ., 1970, c. C-34, s. 129 (compounding in-

dictable offence) ; s. 130 (corruptly taking reward for recovery of goods) ;
s. 131 (advertising reward and immunity) . The offences of misprison,
conspiracy, compounding, barratry, champetry, and maintenance are all
related. See, for example, Winfield, The Present Law of Abuse of Legal
Procedure (1921) . See also the account given by Radzinowicz, A History
of English Criminal Law, Vol. 2 (1956), pp . 313-318. The power of the
prosecution to enter a stay of proceeding, Criminal Code, ibid ., at s. 508
may be regarded as legal authority to compound an indictable offence.
3a For examp'e. see R . v. Whiteford, [1947] 1 W.W.R . 903, 4 C.R .
318, at pp. 321-322, 89 C.C .C. 74 (B .C .) : "A criminal offence is not an
offence against an individual but is an offence against society as a whole.
The King is recognized as having no partiality to any individual but as
representing impartially society as a whole . . . . Each member of society,
however, owes a duty to society as a whole . If he has knowledge of a
crime having been committed, whether he be the particular individual
against whom this particular crime be committed or not, it is his duty
to inform the Crown of the commission of such crime and then it is
for the Crown to take such steps or proceedings as may be considered in
the best interests of society as a whole ." Emphasis added.
justice system . In gaining a centralized monopoly on public

justice, the King could gain control of the central mechanism
with which to enforce his political will, and at the same time,
deprive the barons of a weapon which could be used against
him. 37 As such, the enactment of a whole range of offences, such
as barratry, compounding, and conspiracy, was designed to serve
the interests of the King in his political war with local barons.
Second, a notion of public wrong implied not only public control
of the territory in which the wrong occurred, but also implied
a notion of recompense to the public purse. The public fine as a
1976 CanLIIDocs 14
source of revenue and profit for the State (King) may also have
led the law maker (King) to prevent diversion of cases into the
competing non-revenue system . 38
The vesting of a centralized monopoly of public justice in
the State was grounded in conservative political philosophy
upon the needs of social authority in conservative society. Like
other adherents of classical Liberalism, the Commission has
denied the policies inherent in the needs of conservative social
authority,-39 but does not recommend in this paper the abolition
of the crime of compounding which enforces those needs. One
may presume that is because the_ Commission has adopted the
modern rationalization of the crime described above. The pre-
sumption is strengthened by the fact that it is consistent with the
value-consensus model to argue that vindication of public con-
sensual moral standards requires a crime to be aired in the
public fora -and the criminal sanctioned publicly for public pur-
poses. 4° Hence the Commission is prepared to recommend con-
siderable widening in the use of restitution as a primary basis for
37 See Krisbérg, op . cit., footnote 15, pp. 138-139 . As to the central

nature of authoritative force, see infra, footnote 71 .
3s Ibid . See also the important work of Rusche and Kirchheimer,
Punishment and Social Structure (1968) for very similar conclusions.

3s At least insofar as the crime discourages what the Commission
regards as proper restitution (op . cit ., footnote 33, p . 9) . However, the
paper does not identify the exact nature of the crime of compounding and
appears to think that "historical developments" were "well intentioned"!
40 Hence the Commission gives stress to the notion that public sanction
provides "us" with "reassurance" (op . cit ., footnote 8), "sustains public
confidence" (op . cit ., footnote 33, p . 19), "demonstrates a concern" (ibid.) .
The most obvious example of the application of the consensus view of
compounding occurs (ibid., p. 15) : "It is fitting that [the deviant] would be
required to pay back more than he took [?? Why?] . Consequently, in
many cases, a fine would be an appropriate additional sanction in recogni-
tion of the harm done to society and the costs involved in upholding
values and protecting individual rights ."
sentencing, but only institutionally under the watch of the State.41

It is evident that the Commission's view is formed in contradiction
to conservative policy, in classical Liberal fashion: by adaptation
of conservative policy to meet new social ends which are in
contradiction to conservative political philosophy .
Ricci goes on to point out that the values of classical
Liberalism, and, it is submitted, the values to which the Com-
mission frequently refers, are to be found in the middle class -
in the bourgeoisie:
1976 CanLIIDocs 14
In the larger historical context the term "Liberal" is best reserved
for the great political ideas and policies formulated by the middle
class of the Western world since about 1650. . . . 42
The Liberal tenets marked a middle class resolve to question the
legitimacy of a society controlled by hereditary aristocracy. . . 43
This point has not gone unremarked by other commentators .

Taylor, Walton and Young comment :
Social contract theory can be seen historically as an ideological
framework for the protection of the rising bourgeoisie . . . .4 4
The consensus aspect of the philosophy of the Commission,

also a major premise of classical Liberalism,45 was and is used to
provide a political and ideological basis for concepts of due
process and fundamental fairness in the criminal process. The
United States, a society founded upon a constitution limiting
Compare Beccaria, op. cit., footnote 17, p. 5 : "He who endeavours

to enrich himself with the property of another, should be deprived of
part of his own."
41 Working Paper 5, op . cit., footnote 2. Although radical community
based diversion schemes may involve restitution other than through the
courts, diversion is mentioned in the working paper only as an alternative
to a sentence of imprisonment . Ibid., p. 15 .
42 Op . Cit., footnote 17, p. 8.
43Ibid ., p. 17 .
44 Op. cit., footnote 15, p. 3. See also Gouldner, The Coming Crisis
of Western Sociology (1971), pp . 70-71; Taylor, Walton and Young,
op . cit., footnote 12, pp . 78 et seq . Krisberg, op . cit., footnote 15, pp . 48-49 :
"The development of a universal legal institution, under which all were
equal, was a critical weapon for the rising bourgeoisie . . . ."
As to equality, see supra, footnote 25 . See also Akers and Hawkins,
op . cit., footnote 3, p. 45 ; citing further authority identifying the "values"
of liberal society as being those of the middle class, and Rapoport, op . cit.,
footnote 14, p. 25 .
45 Ricci, op . cit., footnote 17, pp . 10-13 in particular . See also the
authority cited supra, footnote 17 .
19761 Comments 663
social authority on a fundamentally liberal basis, 4 s has a criminal

process in which due process and procedural fairness play a
dominant role . Social contract theory there not only involved a
citizen's duty to the State, but also the State's duty to the citizen .
Hence, there was implied the notion of a citizen's correlative rights
as a basis for protection against the excesses of a state owned by
a neofeudal elite exercising political power by means of inherited
wealth and, on occasion, religious fiat .4° It is ironic that a concept
developed to protect a citizen against State interference with
procedural due process should now be used to defend State inter-
1976 CanLIIDocs 14
ference in society on a substantive level. But, logically, an ideology
committed to the procedural protection of the rising, propertied
middle class should also have substantive implications for the
protection of bourgeois values : for example, the protection of
newly-acquired property rights, and the philosophy of utilitar-
ianism .48
46 See, for example, Rapoport, op . cit ., footnote 14, pp . 22-23, 26, and
Ricci, ibid., p . 9 .
47 See, for example, Unger, op . cit., footnote 15, pp. 127 et seq.,
in discussing the nature of bureaucratic law, which may be characterized

as law created by an instrumentalist society : "Power is justified by religion ."
Until 1650 in a formal sense when power began to move from King
to Parliament in England, or until 1832, in a fundamental sense when
Parliament began to be representative of a wide range of voters, England
was a society characterized by bureaucratic law and closely tied, in Stuart
times, to religion in the "divine right of kings" and the monarch's role as
head of the Church .
4s See, for an extended analysis of the role and origin of property
rights, and the rise of utilitarianism, Taylor, Walton and Young, op . cit.,
footnote 12, pp . 9-14, 33-44, and footnote 15, pp . 3-7 . At p . 34 they
state : "A society which is predicated on the unequal right to the
accumulation of property gives rise to the legal and illegal desire to
accumulate property as rapidly as possible ."
The concept of private property is central to the Commission's "values"
and in Working Paper 10, op . cit., footnote 2, pp . 21-22 it is stated : " . . . in
any society there has to be some vestigial respect for property rights : whether
a society holds all its property in common or is wedded to private ownership,
it couldn't make satisfactory use of land and other items of property unless
the user were to be given some security of possession . . . . These are the
basic values necessary for society. Without them there can be no real
co-operation and hence no real society ."
Yet when money is involved, the principle becomes much less basic . In
Working Paper 5, op . cit., footnote 2, p . 21, the Commission states with
respect to a scheme of State compensation to victims of crime : " . . . it can
be said that property loss should be covered, since such compensation would
support core values, strengthen social bonds, reduce the victim's anxiety . . . .
On a practical level, however, the cost of compensating property losses
would be substantial and funds available for compensation are limited . . . ."
The Commission may now be seen to have adopted a

political-social philosophy to the approach of criminal process
reform which involves major assumptions about the nature and
basis of society and social authority. It is evident that the
Commission has not explained, to date, why it adopts this
philosophy, and its implications, nor has it considered in print
the reasons for its rejection of alternative models of society, both
real and ideal. Instead, the Commission has discussed, in general
terms, the implications of applying the value consensus model to
the Canadian criminal process . In fact, the ideology which the
1976 CanLIIDocs 14
Commission has chosen to present has lately come under heavy
and telling fire from adherents of an alternate opposing model.
This contradictory model may be called the "value antagonism"
model. 49
In the fields of political philosophy and criminology, the
value consensus model has been attacked as representing a false
social consciousness because of the model's failure to account
for present social reality. 5 ° In both disciplines, the debate has
focused upon the influence which groups or factions 5 l have upon
the political norm creative and norm controlling attitudes of the
State, and the fundamental values which liberal ideology attri-
buted to an individualized social consensus. Thus, as a political
scientist, Ricci comments in detailing Marxist theory : ,-)2
In the capitalist social system, Marxists argued, the bourgeois middle-
class own . . . the means of industrial production, and members of
the working class have , no choice but to labor for minimal wages.
The result of Liberal freedom, then, is not a society in which groups
49 So called by Chambliss and Seidman, op . cit., footnote 17, p . 17 .

Other names are "conflict" (Quinney, op . cit., footnote 17, pp, 20-25)
and "interest group" (Hills, op . cit., footnote 17, p. 4) .
50 See Ricci, op . cit., footnote 17, p. 20 : ". . . the great flaw in our
Liberal ideology . . . has been and still is its failure to describe adequately
the political systems established or reformed in the name of Liberalism ."
See also, ibid ., p. 23 ; Quinney, op. cit., footnote 17 ; Akers and Hawkins,
op. cit., footnote 3, pp . 45, 47 ; Phillipson, op . cit., footnote 30; Krisberg,
op . cit., footnote 15, pp . 167-163 ; Taylor, Walton and Young, op . cit.,
footnote 12, p. 21 ; Unger, op . cit., footnote 15, p. 31 : "The first and
fundamental drawback of the consensus doctrine is its inherent tendency
to explain both too much and too little ."
51 See generally Ricci, op. cit., footnote 17, who is primarily concerned
with the sociology of group action, esp. pp . 36 et seq.; see, also generally,
Lenski, op . cit ., footnote 25, esp. Ch . 2; Davis, Law as a Type of
Social Control in Akers and Hawkins, op . cit., footnote 3, pp . 22-23 ;
Akers and Hawkins, ibid ., pp . 45, 47 .
52 0p . cit., ibid ., p. 24 .
1976] " Commentaires 665
count for little, . but rather a society in which certain groups . . . are
penultimately important.
Richard Quinney has made a similar point in ,discussing the

interest analysis of law propounded by Roscoe Pound. Quinney
comments : 53
First : . . Society is . characterized by diversity, conflict, coercion and
change, rather than by consensus and stability . Second, law is a
result of the operations of interests, rather than an instrument that
functions outside of particular interests. Though law may control
interests, it is in the first place created by interests . Third, law in-
1976 CanLIIDocs 14
corporates the interests of specific persons and groups ; - it is seldom
the product of the whole society. . . .
He then goes on to identify the particular interest groups whose

success or failure results in the formulation of public policy.
Hence : 54
. . . public policy itself is a manifestation of an interest structure in
politically organized society.
The influence of groups and powerful interests upon the

State focused the criticism of the value consensus model of
society which involved both major assumptions of that model,
and in so doing, shaped the theoretical structure of opposing
theory and its formulation.55 The adherents of the value antag-
onism model, not all of whom are Marxists,56 formulate their
theory in logical contradiction to the essential tenets of liberalism
53 Op . cit., footnote 3, p . 75 . See, to similar effect, Quinney, Crime

Control in Capitalist Society : A Critical Philosophy ~of Legal Order in
Taylor, Walton and Young, op. cit., footnote 12, pp . 192-193 .
541bid ., p . 77 . See also Lenski, op. cit., footnote 25, 'pp . 35 et seq.;
Herz and Hula, "Otto Kirchheimer, An Introduction to His Life and
Work in Burin and Shell, eds, Politics, Law and Social Change (1969),
pp. xxi et seq.; Taylor, Walton and Young, op . cit., footnote 12, p . 30.
55 Ricci op. cit., footnote 17, p. 26 : "In the logic of political disputa-
tion, it was virtually predictable that Marxists, in order to overthrow
Liberalism, would deny the validity of Liberal tenets and rationalize a
position exactly opposite them ."
Taylor, Walton and Young, op . cit., footnote 12, p. 8 : " . . . the alternative
positions taken appear to be little more than inversions on orthodox
perspectives . . . ...
See also p . 14 ; Young, op. cit ., footnote 17, p. 77 ; Unger, op . cit., foot-
note 15, p . 35 : "The two conceptions of social order seem to be juxtaposed in
a contradictory way rather than merged . . . ."
56 See Denisoff and McCaghy, eds, Deviance, Conflict and Criminality
(1973) . See also, for a forceful critique of Marxist Criminology, Hirst,
Marx and Engels on Law, Crime and Morality, in Taylor, Walton and
Young, op . cit ., footnote 12, p . 214 .
and positivism, and hence a view of society and social authority

emerges which has direct, and difficult, implications for reform
of the criminal process. The "radical" criminologist, so-called
because not all applications of the value antagonism model are
Marxist, denies that there is fundamental social agreement as to
the values of society, but rather that society is characterized by
diversity and conflict on a large scale, and that social authority is
wielded by and for an economic meritocracy which controls the
means of production in the society. 17 Moreover, the radical
criminologist would deny that law primarily reflects the will of
1976 CanLIIDocs 14
the mass of society -rather it is a means used to protect and
perpetuate the interests of the dominant groups which control
social authority .os Hence, politically organized society is charac-
terized by conflict and is ruled by alliances between economically
determined power groupings. This view of social authority has
obviously significant implications for reform of the Canadian
criminal process, even if it is only partially valid.
Taylor, Walton and Young describe the implications from
a Marxist point of view : -19
A full-blown Marxist theory of deviance . . . would be concerned to
develop explanations of the ways in which particular historical periods,
. . . give rise to attempts by the economically and politically powerful
to order society in particular ways .
57 See, for example, Lenski, op . cit., footnote 25, pp. 22-23 ; Ricci,
op . cit., footnote 17, pp . 25-27 ; Quinney, op cit., footnote 15, pp . 15-16 ;
Reasons, op . cit., footnote 30, pp . 9-11 ; Johnston, Toward a Supra-National
Criminology : The Right and Duty of Victims of National Government
to Seek Defence Through World Law in Drapkin and Viano, ed .,
Victimology : A New Focus (1974), p. 40 ; Taylor, Walton and Young,
op . cit ., footnote 12, pp . 6-7, 30, 47-48; Akers and Hawkins, op. cit.,
footnote 3, pp . 44-45; Sykes, op. cit., footnote 30, p. 209.
5s Supra, footnote 51 . See also Quinney, ibid.; Johnston, ibid .;
Reasons, ibid.; Germann, To All Researchers of the Criminal Justice
System : A Warning! in Viano, ed ., Criminal Justice Research (1975), p. 5:
"The orientation of the criminal justice system is, expectedly, over-
whelmingly conservative . . . and consequently it is not representative of the
entire community ."
See also Rapoport, op . cit., footnote 14, p. 25 : ". . . the dominant class
imposes its ideology, including a value system, on the entire society."
See also Akers and Hawkins, ibid .; Hirst, op . cit., footnote 56 ; Krisberg,
op . cit., footnote 15, pp . 42, 55 ; Unger, op. cit., footnote 15, p. 64 :
"Law becomes a tool of the power interests of the groups that control
the state."
59 Op . cit., footnote 15, p. 220. See also, for a discussion of the
implications of a Marxist view for the criminal process, Rapoport, ibid.,
p. 23 .
19761 Comments 667
Sykes, in describing his perceptions of the foundations of

radical criminology, has detailed a philosophy which is highly
persuasive, but in direct opposition to the Commission's view :
According to emerging "critical criminology" the criminal law should
not be viewed as the collective moral judgments of society promulgated
by a government that was defined as legitimate by almost all people .
Instead, our society was best seen as a . . . territorial group living under
a regime imposed by a ruling few in the manner of a conquered prov-
ince. The argument was not that murder, rape and robbery had suddenly
become respectable but that popular attitudes toward the sanctity of
1976 CanLIIDocs 14
property, the sanctity of the physical person, and the rather puritanical
morality embedded in the law were far less uniform than American
criminology had been willing to admit .6'6
As Ricci has pointed out, the value antagonism model is

determined in structure and content by that philosophy which
it was created to oppose .61 That philosophy was liberalism, its
criminological arm positivism ; and its perspective on society and
social authority, the value-consensus model. The attack on positiv-
ist criminology, described in detail by Taylor, Walton and
Young, 62 appears to have begun in the form of debate concerning
the objectivity of social science and, in particular, the objectivity
of criminology and criminologists .63 The questioning of crimino-
logical and social science research on the basis of ideological bias
had severe implications for the validity of legislation and criminal
66 Op . cit., footnote 30, p . 209 ; see also hrisberg, op . cit., footnote 15,
pp . 67-71 ; Johnston, op . cit ., footnote 57, p . 40 ; and see generally Viano,
op . cit., footnote 58 . See also Poveda and Schaffer, Positivism and
Interactionism : Two Traditions of Research in Criminology in Viano, ibid .,
pp . 25-29 .
61 Op . cit., footnote 17, pp . 25-27 . See supra, footnote 55, for further
references.
62 Op . cit., footnote 15 .
63 See, for example, Lenski, op . cit., footnote 25, pp . 22-23 ; Krisberg,

op . cit ., footnote 15, pp . 2-3, 14-18, 72-73 ; Taylor, Walton and Young,
op. cit ., footnote 12, pp . 7-8, 22-26, 41 ; Taylor, Walton and Young, op . cit .,
footnote 15, pp . 3, 19-21, 281 ; Viano, op . cit ., footnote 58, p . xiii; Tifft,
Sullivan, and Siegel, Criminology, Science and Politics in Viano, ibid .,
p. 10; see generally Platt, Prospects for a Radical Criminology in the
U .S .A . in Taylor, Walton and Young, op . cit., footnote 12, pp . 95 et seq .
For example, see Viano, ibid . : "Criminology and criminological research
are very much the servants, first of political values that define crime and
the criminal as something outside society, and second, of the personal,
often self-interested values of the criminologists who accept these political
values and work within them ."
See also Sykes, op . cit ., footnote 30, p . 206 : "Sociology . . . was still con-
taminated by the bias and subjectivity of particular interest groups in
society . The claim to the cool neutrality of science was a sham."
process reform based upon that research . In particular, if scien-

tific objectivity was a myth, it could be argued that the primary
influence, indeed the major influence, upon the criminal process,
has been political expediency ."
The value antagonism model, while highly persuasive, has
not been accepted without criticism. It has been widely argued,
for example, that the value consensus model of society, as a
purportedly universal model of society, no longer has descriptive
or validating function, but that it still may serve to explain and
1976 CanLIIDocs 14
justify part of the criminal process structure.6-1 A different crit-
icism has focused upon the assertion that the law as an agency
of social control, is dominated by the ruling economic class.
Denisoff and McQuarie, in criticizing Quinney, state :66
In correctly denying the absolute autonomy of the capitalist state
[qua "the capitalist ruling class"] Quinney fails to deal with the essential
issue of the state's relative autonomy under certain specific conditions.
Denisoff and McQuarie go on to point out that the state bureau-
cracy will, for example, pursue the interests of its own class and
not those of the ruling class within certain unspecified limits .67
Thus, although they accept the value antagonism model, it is with
the reservation that it, too, is an inadequate explanation of the
totality of both the social functioning and political determination
of the criminal process . However, that does not imply an even
partial acceptance of the consensus model.
;}See, for example, Kirchheimer, Political Justice : The Use of

(
Legal Procedure for Political Ends (1961) .
u5 See, for example, Taylor, Walton and Young, op. cit., footnote 12,
p. 6 : ". . . once it is seen that an ùnjust despotism' may be hidden by
the ideology of social contract utilitarianism, the classical symmetry of
crime and punishment, an essential part of the theory itself, is shown to be
ineffective and self-contradictory ."
(6Crime Control in Capitalist Society : A Reply to Quinney (1975),
10 Issues in Crim. 109, at p. 113. See also ibid ., at p. 114 : "Class factors
aside, the relative autonomy of the state is, in the final analysis, a clear
necessity for the state to survive and function at all. . . . the state can
only function so as to organize the legionary of any ruling class as a
whole insofar as it is relatively independent from the immediate control
of any of the diverse factions of that class."
See, to similar effect, Krisberg, op . cit., footnote 15, pp. 70, 74. See also
Ricci, op . cit ., footnote 17, p. 45 where, in discussing the scholarship of
Charles Merriam, it is said : "In other words, the citizenry retain some
kind of ultimate reserve power which they can exercise in time of need."
Again, there are implications for the relative autonomy of the State .
67Ibid., p. 1l5 .
Akers and Hawkins, however, while conceding that the

value antagonism model is the most persuasive single explanation
of the criminal process,s 8 state :'9
. . . a comprehensive explanation of the law must partake of both the
consensus and conflict models . The politically powerful subunits of
society at any given time can see to it that the law enhances their
interests to a greater extent, but the law also reflects the past, current
and changing functions and values of the whole society .
It is not intended here to do more than outline the bare
framework of the debate that is still continuing." However, the
1976 CanLIIDocs 14
result of the debate has been a widely held political and crim
inological philosophy with direct relevance to generic reform of
the criminal process : a theory which is highly critical of and
contradictory to the political philosophy espoused by the Law
Reform Commission. In a truly fundamental discussion of reform
of the criminal process in Canada, which process is central to the
operation of social authority," both views should be, canvassed
before one is adopted.
Conclusion
It has been the thesis of the discussion above that -the work
of the Law Reform Commission of Canada has -been, to date,
profoundly unsatisfactory. The approach taken by the Commis
sion to, reform of the criminal process in Canada has been
presented as a philosophical enquiry into the kind of criminal
process which can best serve Canadian society as =it presently
cs Op. cit., footnote 3, p. 47 : "All this adds up to a preponderance of

evidence in support of the conflict model as the one which comes closer
to the reality of the making and enforcing of laws in modern society."
Ga Ibid ., p. 49 . See generally Lenski, op. cit ., footnote 25, who is con-
cerned to "synthesize" the two models . At p. 33 Lenski states : "Both clearly
contain an element of truth." See also Unger, op. cit., footnote 15, p. 64.
See, for example, Hirst, op. cit., footnote 56, p. 204 : "Radical
deviancy theory . . . questions the value assumptions, underlying justifica-
tions of establishment interests, and the ideological stand of orthodox
criminology, but it very rarely questions its own position, assumptions and
interests ."
1 As to the critical role which the use of force through social
authority is given, see Lenski, op. cit., footnote 25, p. 23 ; Quinney, op. cit.,
footnote 15, p. 15: "Although the legal order consists of more than
criminal law, criminal law is the foundation of that order."
See also Krisberg, op. cit., footnote 15, pp . 41-42; Allen, The Trial of
Socrates : a Study in the Morality of the Criminal Process in Friedland,
op. cit ., footnote 14, p. 4; Akers and Hawkins, op. cit ., footnote 3, p. 11;
Davis, op. cit., footnote 51, pp. 21-23 .
exists : in itself a value-laden acceptance of much of the substantial

status quo . 12 In actual performance, the working papers of the
Commission represent the application of a particular ideology
- liberal positivism - to the present framework of the criminal
process. Thus Grygier has commented:73
Unfortunately, the Law Reform Commission's Working Paper represents,
in my view, not reform but return, or at best a streamlining process
of the old classical theory of justice, which sounds medieval to any
modern criminologist .
1976 CanLIIDocs 14
There has been no real philosophical enquiry, no reasoned
discussion of the continuing dialectic of criminal process models
which keeps the area in a constant "state of crisis", 7} but rather
the a priori adoption of a particular ideology of criminal process
reform . In particular, the failure of the Commission to perceive
that there can be no consensus as to the "core values" of a
given society, except perhaps in terms of vast generalization,
has led also to its failure to perceive that there can be no
consensus as to the need for, or existence of, that consensus .
Three brief examples should serve to illustrate the dif-
ficulties in which the Commission has found itself as a conse-
quence of its failure either to explain the reality of the present
criminal process or the basis in detail of its ideal criminal
process. All three examples focus upon the generalized and
mythical "minimal consensus" 75 upon which the Commission's
liberal-positivist ideology rests and in particular the morality or
core values which are the subject of that consensus .
Example 1 : "We-Us : They-Them"
The ideology of most criminologists can be understood in terms of

their class, sexual and racial sameness . It is likewise clear that this
sameness distorts studies of the criminal and gives life to the stereotype
of the criminal as being clearly inferior from the social pathologist?
=See supra, footnote 15 . This acceptance is explicit when the Com-

mission speaks of the necessity for the enforcement of core-values "essential
to the existence of our own particular society as it is". Law Reform Com-
mission Report, Our Criminal Law, March 1976, p. 20 .
,a Sentencing : What For? Reflections on the Principles of Sentencing
And Dispositions (1975), 7 Ottawa L. Rev. 267, at p. 267.
7-! It is not contended here that the crisis should be resolved . See
Hartt, Some Thoughts on the Criminal Law and the Future (1973),
51 Can. Bar Rev. 59, at p. 62 .
75 Ibid ., at p. 65.
76 Krisberg, op . tit., footnote 15 . p. 4.

19761 Comments 671
It is unfortunate, but revealing, that the Commission con-

stantly speaks in the first person plural, designating a "we"
and an "us" . From context, it is often clear that the "we" refers
to the Commission as opposed to anyone else, but sometimes
the "we" is a more general reference to "we" as representing
society and law-abiding citizens as opposed to "them" : the
criminals. Consider the following extracts from Commission
papers
Crime uncoped with is unjust : to the victim, to potential victims and
to all of us? 7
1976 CanLIIDocs 14
How people behave is our business if their behaviour causes us harm 78
In short we have to make it our criminal law. Then, and only then,
may we really learn to cope with crime .79
Sadly, there are echoes here of the old Lombrosian attitude

that the criminal can be distinguished from the rest of society
by factors, usually, but not always, biological, beyond the fact
that the deviant has been found to have broken the law. Fox
has noted in his discussion of the XYY syndrome :
. . . it provides a convenient moral advantage for both the community
at large and those responsible personally for the offenders' welfare,
for all are relieved from blame for the behavioural consequences of what
is a purely biological accident .sfl
The point is, of course, that there is no "us" and "them", and
that the criminal law should not belong to "us" .
Example 2 : The Enforcement of Morality

In its report titled, significantly, Our Criminal Law, 81 the
Law Reform Commission has shown considerable confusion on
the question whether the criminal law is in the business of
enforcing morality or not. Consider the following statements taken
from that report :
Crimes are not just forbidden, they are also wrong .S2
In truth, the criminal law is fundamentally a moral system . . . basically
77 Op . cit ., footnote 72, p . 7 . See also Working Paper 2, op . cit .,

footnote 2, p . 5 : "We have, we would contend, a basic right to protect
ourselves from harm and in particular from the harmful acts of others."
Emphasis added on both quotations .
78 Working Paper 10, op . cit., footnote 2, p . 36 . Emphasis added .
79 Op . cit., footnote 72, p . 40 . Emphasis added .
so Fox, The . XYY Offender : A Modern Myth? (1971), 62 7 .C.L.C .
& P .S . 59, at pp. 71-72.
81 Op. cit., footnote 72 .
82 Ibid ., p . 5 .
6)72 LA REVUE DU BARREAU CANADIEN [VOL . LIV
it is a system of applied morality and justice.s3

Nor is the business of the criminal law the enforcement of morality .
Though wrong behaviour is the target, its wrongfulness or immorality
is only a necessary condition, not a sufficient one.s4
. . . criminal law simply underlines our general notions of right and
wrong.85
It is very difficult to conclude whether or not the Com-
mission is of the opinion that criminal law is in the business of
enforcing a moral system . Clearly, the Commission is of the
opinion that criminal law should enforce some morality, but not
1976 CanLIIDocs 14
all morality, but the central and unanswered question is whether
or not a primary function of criminal law is to preserve and en-
force a selected morality or whether that function is merely
attendant upon any legislation of a criminal or quasi criminal
nature . The vague Commission double-talk outlined above
proceeds from a fundamental weakness in the ideology the Com-
mission has chosen to adopt. But what morality? Whose morality?
Who, really are "we"? What, really, is the content of "our" con-
sensual morality? Who decides?" If there is no minimal social
consensus, if there is no reflection of any possible common
morality in social legal institutional decision making, then enforce-
ment of morality can easily become a facade for the imposition
of the will of one social group upon another.
Example 3: The Delineation of Morality

If the basis of the Canadian criminal process is to be a
"minimal consensus about how disputes and conflicts will be
resolved in society" and that consensus is to be one shared by
(a majority of?) the citizens of the society in which it shall
operate, then it follows logically that it will not be necessary
to detail with precision the exact parameters of the criminal
law, for most or all members of society will know, ex hypothesi,
what conduct is wrong and what conduct is not. Consistently
with its reasoning, the Law Reform Commission has stated : 87
The individual has a right to know clearly what is forbidden. The
administrator has a right to know clearly when he can legally intervene.
This, it is argued, justifies spelling the details out in black and white.
The argument is not totally convincing . In particular it is not convincing
as regards "real" crimes . These are acts generally recognized as seriously
ss Ibid ., p . 16.
84 Ibid .
85 Ibid ., p . 37 .
ss See also Grygier, op . cit., footnote 73, at p. 268 .
87 Op . cit., footnote 72, p . 37 .
and obviously wrong . So general is this recognition and so obvious is

their wrongfulness that ignorance of the law is not . allowed as a
defence . Whether or not the accused is familiar with the` actual
language of the Criminal Code sections on homicide is quite irrelevant
on a charge of murder-he knows that it is wrong to kill . . . . This
being so, we contend that there is no need for detailed definitions .
This conclusion is logically consistent with the ideology of

the Commission and quite as erroneous as that philosophy . The
need for certainty and clarity in the criminal law could be, and
should be, discussed at .length, but such discussion is not within
1976 CanLIIDocs 14
the. scope of this brief comment. Nevertheless, the errors of the
Commission's conclusion may be easily shown.
It is simply not true in Canadian society and Canadian
criminal law to state that it is wrong to kill. On some occasions
it is wrong, on some occasions it is not. Indeed, the Criminal
Code is full of provisions excusing, under specified conditions, the
killing of one human being by another. 88 Moreover, considerable
doubt may exist as to whether the accused has "killed" and
whether the accused has killed "a human being" . The abortion
debate is an obvious example of the latter problem, and R. v.
Blaues 9 provides a convenient example of the former . Blaue
stabbed a young woman with a knife, which penetrated her lung .
The victim was taken to hospital where she was told that surgery
and blood transfusion were necessary to save her life . She refused
transfusion because it was contrary to her religious beliefs as a
Jehovah's Witness and died the following day. Medical evidence
indicated that the wound would have not been fatal had the
victim accepted medical treatment. The question is, of course,
whether Blaue is guilty of murder. Moreover, . in the absence of
legal definition of "kill", is the result obvious? It is true that
the accused committed a "wrong act", and that the accused's
state 'of knowledge as to the law was quite irrelevant to the
decision . Nevertheless, do "we" say that Blaue is guilty of
murder? Or is he guilty of something else? In the absence of
definition, how can "we" tell?
One more example should reinforce the need for definition .
In R . v. PaquettO9 the accused was the driver of the car used
by two other persons to commit a robbery. During the course of
88 See, for example, Criminal Code, supra, footnote 35, s. 7(3)

(common law defences) ; s . 16 (insanity) ; s . 25 (protection while enforcing
the law) ; ss 34-42 (defence of property and self-defence) ; and so on .
89 [1975] 1 W.L.R . 1411, [1975] 3 All E .R . 446 (C .C.A .) .
90 (1974), 5 O.R . (2d) 1, 19 C .C .C . (2d) 154 (Ont . C .A .) .
the robbery, a person was killed . Paquette remained in the car

outside the shop throughout and took no other part in the robbery
or murder committed by his co-accused . By combination of
section 21(2) and section 213 of the Criminal Code,° 1 Paquette
could be found guilty of murder, despite the fact that he killed
no one and did not know that anyone was to be killed, if the
Crown could prove the elements of section 21(2) . Paquette's
defence was that he was compelled to drive the car at gunpoint .
Assuming for the purposes of the case that Paquette's story was
true, is he guilty of murder? Is he guilty of anything? Is it obvious?
1976 CanLIIDocs 14
The discussion in this comment has moved from general
criticism of the approach of the Law Reform Commission to
specific criticism of some of its proposals. Little further discussion
is necessary or advisable, nor is it possible to look com-
prehensively at all of the work and accomplishments of the Com-
mission. It is to be hoped that some of the issues raised herein
will spark further public and academic debate concerning that
matter which touches all citizens most closely : the criminal
process which should be in place in Canada .
M. R. GOODE*
CONTRIBUTION-OWNER-CONTRACTOR AGREEMENT-ROLE OF
ARCHITECT OR ENGINEER AS ARBITRATOR-NEGLIGENCE .-The
question of whether an architect or an engineer is functioning in
an arbitral role when he issues certificates for work done im-
properly by a contractor came before the House of Lords for
the first time in 1974, in Sutcliffe v. Thackrah .l In that case
the House of Lords unanimously rejected the rule established in
1901 in Chambers v. Goldthorpe,L' in which the English Court
of Appeal held that the architect, in ascertaining the amount due
to the contractor and certifying the amount under the contract
between the building owner and the contractor, occupied the
position of an arbitrator, and therefore was not liable to an action
by the owner for negligence in the exercise of those functions.
91 See the famous case of R. v. Trineer, [1970] S.C .R. 638, [1970]
3 C.C .C. 289, 11 C.R .N .S . 110, 10 D.L .R . (3d) 568, 72 W.W.R. 677 .
*M . R. Goode, of the Faculty of Law, Dalhousie University,
Halifax, N.S .
1 [1974] 2 W.L .R . 295 (H .L.) .
[1901] 1 K.B . 624 (C.A .) .
19761 Comments 675
The House of Lords, in overruling Chambers v. Goldthorpe,3

accepted the dissenting view of Romer L.7 . in that case :
[The architect] by the terms of his employment . . . undertook to
measure up from time to time the work done for his principal by
the contractor, and to certify the amount in money the work represented,
and in particular on completion of the work to certify the balance
payable . For this work he was to be paid by his principal, and it
is in respect of it that he is suing. It would follow that, if in doing
that work, for which he was to be paid by his principal, he was guilty
of negligence from which damage ensued to his principal, he would
be prima facie liable . To enable him to escape from that liability,
1976 CanLIIDocs 14
the onus would lie on him to shew that, by the terms of the contract
between his principal and the contractor, he was free from prima
facie liability . No doubt he might do so, if he could shew that by
those terms he was undoubtedly placed in the position of an arbitrator
with regard to his certificates, and that the principal's complaint
against him in regard to the certificates was for something done in
his capacity of arbitrator . But he would not, in my opinion, succeed
in shewing this merely by reason of the fact that his principal and
the contractor had by the contract agreed that, if no prior dispute
arose in reference thereto, his certificates should be treated as conclusive
between them .
In Sutcliffe v. Thackrah, the plaintiff retained the defendant,

a firm of architects, to design a house and to supervise its
construction by a contractor employed by the plaintiff under a
written contract . Under the building contract, the plaintiff and
the contractor, agreed that the architect would issue certificates
stating the amount due to the contractor for work properly
executed . The contract provided as well that in the event of a
dispute arising in relation to any such certificate the parties
might submit their differences to arbitration . The plaintiff sued
the defendants for damages for negligence and breach of duty
in the course of supervising the building and in certifying - in
two interim certificates - for work not done or improperly done
by the builders . The official referee upheld the claim for negligent
over-certification but the Court of Appeal reversed his decision,
holding that, in issuing interim certificates, the defendants were
acting in an arbitral capacity and were therefore immune from
liability provided they acted honestly . The plaintiff appealed
to the house of Lords .
Lord Reid, in Sutcliffe v. Thackrah, stated that Chambers v.
Goldthorpe was virtually indistinguishable on its facts from the
former case . Lord Morris of Borth-Y-Guest, in overruling
Chambers v. Goldthorpe, prefaced his conclusions by the ob-
servation that "each case will depend on its own facts and
3Ibid ., at p . 643 .
circumstances and on the particular provisions of the relevant

contract" . While this qualifying remark appears to have the
effect of diminishing the applicability of the rule in Sutcliffe v.
Thackrah, it is submitted that the rule is sufficiently general to
apply to many situations in Ontario, particularly those in which
the contract between the owner and the contractor contains a
provision whereby disputes between them are to be settled by
an arbitrator who is not the owner's architect. As Viscount
Dilhorne said, the inclusion of the arbitration clause itself makes
it highly improbable that the parties to the contract agreed that
1976 CanLIIDocs 14
the architect should act as arbitrator between them "for then there
might be an arbitration on an arbitration".
The rule in Sutcliffe v. Thackrah should be applicable to
many situations in which there is no arbitration clause as there
was in that case but in which the architect makes a decision in
the course of carrying out his professional duties to his employer,
the owner. The deciding factor in each case is whether the
terms of the contract are such that the architect or engineer in
a given situation is performing the functions of an arbitrator.
As Lord Salmon stated in Sutcliffe v. Thackrah, "there are the
most striking differences between the roles of the valuer and
architect . . . and the role of a judge or arbitrator . Judges and
arbitrators have disputes submitted to them for decision. The
evidence and the contentions of the parties are put before them
for their decision . None of this is true about the valuer or the
architect who were merely carrying out their ordinary business
activities" .} Lord Salmon went on to say that the heresy that
architects are to be regarded as being in the same position as
judges and arbitrators rests on the fallacy that since all judges
and arbitrators must be impartial and fair, anyone who has
to be impartial and fair must be treated as a judge or an arbitrator .
In the recent Ontario case of Dominion Chain Company
Limited v. Eastern Construction Company Limited et al.,s Lerner
J. found that the consulting engineering company failed in its
contractual obligations or duties to the owner and was negligent
in the performance for the owner of its professional skills with
respect to supervision of the work of the general contractor.
The consulting engineering company's appeal from the trial
judge's decision was dismissed by the Ontario Court of Appeal
in February, 1975, which, in an oral judgment, adopted as
4 Supra, footnote 1, at p. 320.

5 (1974), 3 O.R . (2d) 481 .
1976] Commentaires - 677
correctly stating the law in Ontario, the decision of the Ontario

Court of Appeal in Badgley v. Dickson.s The Ontario Court
of Appeal in the Dominion Chain case stated that "the dissenting
views of Romer L.J . in Chambers v. Goldthorpe, [1901] 1 R.B .
624 commend themselves to us as they did to the Court in
Hoffman v. Meyer, [1956] 2 S.A .L .R. 752" . 7
In Badgley v. Dickson, which was decided a few years prior
to Chambers v. Goldthorpe, Osler J.A . stated :'
In the case before us the action and counter-claim are based upon
1976 CanLIIDocs 14
a distinct contract, by which the plaintiff was employed as a skilled
professional person to perform certain services for reward, and he is
not, in my opinion, absolved from the usual obligations attaching to
such contract merely because under another contract between his
employer and the builder, he may as arbitrator have determined be-
tween them as to the performance of that contract, in a manner which
assumes that he has properly performed his own .
In Hoffman v. Meyer,9 which was decided. about nine years

before Sutcliffe v. Thackrah, Ogilvie Thompson J., in giving
the unanimous judgment of the Cape Provincial Division of the
Supreme Court of South Africa,- stated that : "The views expressed
by Romer L.J . in his dissenting judgment in Chambers v. Gold-
thorpe commend themselves to me as being preferable to those
.
expressed by A. L. Smith M.R . and Collins L.J ." 1° The court
in Hoffman v. Meyer decided not to follow Chambers v. Gold-
thorpe . '
The Ontario Court of Appeal, in the Dominion Chain case,

while not expressly adopting the decision o£ the House of
Lords in Sutcliffe v. Thackrah, did, as many of the Law Lords
of the House of Lords did in the latter case, express a preference
for the dissenting views of Romer L.J . in Chambers v. Goldthorpe
over those of the majority . It is understandable that the Ontario
Court of Appeal, in the Dominion Chain case avoided making
reference to Sutcliffe v. Thackrah and based its decision on
Badgley v. Dickson and the dissenting views of Romer L.J . in
Chambers v. Goldthorpe, because the Law Lords in Sutcliffe v.
Thackrah, while coming to à unanimous decision and expressly
overruling Chambers v. Goldthorpe, dealt with the issues from
various points of view.
6 (1867), 13 A .R. 494 .

7 Unreported .
8 Supra, footnote 6, at p . 499 .
9 [1956] 2 S .A .L.R . 752 .

10Ibid., at pp . 757-758 .
It is hoped, however, that when Canadian common law

courts consider Sutcliffe v. Thackrah, they will apply the case
in its broadest terms to determine whether the architect or the
engineer is acting as an arbitrator in any situation, notwith-
standing the absence of a so-called arbitration clause in the
owner-contractor agreement. Sutcliffe v. Thackrah in spite of the
varied opinions in the case, points out that judicial or arbitral
duties do not involve investigation and do not arise until there
is a dispute. When there is a dispute between the parties to the
contract, they must agree to submit it to someone for arbitration ;
1976 CanLIIDocs 14
each party to the arbitration then submits his evidence and
argument, after which the arbitrator forms a judgment and makes
a fair and impartial decision, thereby completing his arbitral
role.
TERRENCE JOYCE*
WILL-TRUST FOR SALE-RIGHTS OF LIFE TENANT TO INCOME

OF LAND PENDING CONVERSION-SUPREME COURT OF CANADA
OVERLOOKING RECENT ENGLISH AUTHORITIES .-As time passes,
it is to be expected that the law in the common law provinces of
Canada will increasingly diverge from that of England, not only
as a result of statutory intervention but also in consequence of the
rules of the common law and of equity evolving in different ways
on the two sides of the Atlantic . But, apart from statute, such
divergence is still uncommon and the Supreme Court of Canada,
when it declines to follow the recent trend of authority in England,
usually does so in a considered judgment which indicates why it
considers the English decisions to be unsatisfactory as, for
instance, in Harris v. Minister of National Revenue.' It is still
unusual for the Supreme Court to render a decision which is
directly contrary to the most recent English decisions in a brief
oral judgment which is delivered at the conclusion of the appel-
lant's argument, and gives no indication that the court is aware
that it is in any way breaking new ground .
This unusual event, however, undoubtedly occurred in Re
Stekl; Lauer v. Stekl and Public Trustee,° an unsuccessful appeal
from the Court of Appeal of British Columbia.
The case concerned the will of Albert Stekl, who died in
1965 . By his will he gave all his real and personal property to
'` TerrenceJoyce, of the Ontario Bar, Toronto .

x[19661 S.C .R . 489 .
2 [1976] 2 W .W.R . 382 .
19761 Comments 679
his trustees on trust for sale, but with power to postpone sale for
such length of time as they might consider advisable. He then
provided that, after payment from the proceeds of conversion of
his estate of his debts, funeral expenses and death duties, the
trustees should hold the residue in trust for his daughter for life
and then for her children . °
The testator's estate consisted of real estate, shares in two
companies and a loan to one of those companies. The shares and
the loan produced no income . Apparently, the land constituted
1976 CanLIIDocs 14
the bulk of the estate,. and some of it too produced no income .
The estate was thus producing a disproportionately low income
for the life tenant, and she claimed that, pending conversion, she
should be paid an income based on the value of the estate at the
death of the testator, so that she would be in the same position
as if the estate had been converted.
Her application came first before Hutcheon L.J.S.C. His
decision is not reported but the substance of it can be found in
the judgment of the Court of Appeals Apparently the argument
before the local judge was chiefly concerned with whether or not
the rule in Howe v. Lord Dartmouth¢ applied, and he concluded
that while it would apply to the personal estate, the rule had
never been applied to real property, so that, so far as the real
estate was concerned; the tenant for life was entitled to receive,
pending conversion, only the actual income that it produced.
The judgment of the Court of Appeals proceeded on a
different basis. McIntyre J.A ., who delivered the court's judg-
ment, curtly dismissed the rule in Howe v. Lord Dartmouth6 in a
few. words;? quite correctly since that rule itself lays down the
conditions in which a duty to convert the estate will be implied
and therefore can have no application where an express duty to
convert is imposed by the will . The situation under an express
trust for sale is however substantially the same as under an
implied one; numerous cases, of which Dimes v. Scott$ is one of
the earliest and best known examples, have laid down that, even
though the trustees are empowered by the will to postpone sale,
the tenant for life is entitled to receive only the same income as
3 [19741 6 W .W .R . 490 .
4 (1802), 7 Ves . 137 .
s Supra, footnote 4 .
7 Supra, footnote 3, at p . 493 .
8 (1827), 4 truss . 195 .
he would have received if the unauthorized investments had been

sold and the proceeds invested in authorized investments.
The asset in dispute in Re Stekl was, of course, the un-
productive realty. In both Howe v. Lord Dartmouth9 and Dimes
v. Scotty the court's object was to prevent the tenant for life
from profiting at the potential expense of the remaindermen by
drawing an increased income from investments which carried a
high yield because they were risky, since it was the remaindermen
who would suffer if the risk materialized . An asset which
produces no income poses exactly the opposite problem, and in
1976 CanLIIDocs 14
this case the rule in Re Chesterfield's Trusts" entitles the tenant
for life to be paid an income out of capital, and this is the
principle that the Court of Appeal applied although it did not
mention Re Chesterfield's Trusts by name. It is to be noted,
however, that under the rule as stated in that case, the life tenant
is not entitled to be paid anything until the asset is eventually
realized, at which time he is entitled to be compensated out of
the proceeds for the income that he has not been receiving in the
interval . He may thus endure years of penury and then receive
a bonanza. In Re Stekl the Court of Appeal did not follow this
practice, but directed the trustees to pay the life tenant an
immediate income based on the present value of the unproductive
realty . And the Supreme Court affirmed this .
This is clearly a departure from recent practice . As a change,
it would seem to be a sensible one, provided there are other assets
that can be used to pay the income, but neither court appears to
have been aware that it was making a change at all. However,
this is merely a minor variation in the mechanism of the rule in
Re Chesterfield's Trusts . The important part of the decision lies
in the application of the rule to real property. There has been no
previous case in which this has actually been done, and the
English courts have in recent years explicitly declined to give the
life tenant anything other than the actual income from the land .
As Hutcheon L.J.S.C. had pointed out when Re Stekl was
before him, the rule in Howe v. Lord Dartmouth has never been
applied to real property . One reason for this is obvious. Land is
about the most permanent investment that there is, and it is by
no means unusual for a testator to devise land to a series of
persons in succession with the intention that they shall each in
9 Supra, footnote 4.
io Supra, footnote 8.
11 (1883), 24 Ch . D. 643 .
turn enjoy the land as it is; this intention would be frustrated if

the land were subjected. to an implied trust for sale . There is a
second reason, which is far .less obvious. The rule only applied to
a residuary bequest -of personalty, and not to personal estate that
was specifically bequeathed . Prior to the Wills Act of 1837, 12
there was, in fact no such thing as a residuary devise of realty, as
we now understand that expression . A residuary devise was con-
strued as being solely a devise of the land owned by the testator
at the date of his will which was not otherwise disposed of by
the will," so that it was simply a specific devise of any land then
1976 CanLIIDocs 14
owned by the testator which was not identified in the will ; con-
sequently a specific devise which lapsed, or land acquired by the
testator after the will, did not pass to the residuary devisee, but
to the heir at law.13
It is distinctly unusual for a testator to make a specific
bequest of, personal property on trust for . sale, simply because
there is not much point in doing so. Consequently, at the time
when the leading cases such as Howe v. Lord Dartmouth14 and
Dimes v. Scott15 were being decided, there were in practice two
differences between a bequest of personalty-on trust for sale and
a devise of realty on trust for sale ; .not only did they involve
different types of property, but one was residuary and the other
specific . Consequently, the rules respecting the disposition of the
income pending .conversion would not necessarily be the same in
both cases. .
The earliest reported case dealing with the income pending
conversion of realty devised on trust for sale is Casamajor v.
Strode, which is reported only in a note to Walker v. Shore,ls
in which it was cited in argument. The note states that "William
Strode devised real estates to trustees upon trust às soon as
conveniently may be after my death' to sell and dispose of the
same either by public or private sale; and to stand possessed of
the proceeds on certain trusts, for several persons respectively for
life, and after their respective deceases for their children . The
Decree declared that the devisees for life named in the will are
entitled to the rents and profits of the real estates thereby devised
127 Will 4 & 1 Vict ., c . 26 .

13See, e .g ., Williams on Real Property (21st ed ., 1910), p . 251 .
This old rule has now receded so far into history that it will not be
found in many modern textbooks.
16 (1815), 19 Ves. 387, at p . 390 .

from the decease of the testator ; and directed a sale; the produce
to be paid into the Bank, subject to further Order." As will be
seen later, this case has assumed considerable importance in sub-
sequent English decisions, and it appears to be a very slender
foundation on which to base the contention that the tenant for
life gets the actual income pending conversion . It would appear
quite possible that the case was in fact a contest between the
beneficiaries under the devise and the heir at law trying to claim
that the income pending conversion was not included in the gift
and therefore went to him.
1976 CanLIIDocs 14
The next case is Walker v. Shore.17 This bears some resem-
blance to Re Stekl in that it concerned potentially valuable land
that was producing very little income . The land in question was
the reversion on a long lease, which had about thirty years to run
at the testator's death. By the will, it was specifically devised on
trust for sale in terms which gave the trustees a discretion to
postpone sale ; the proceeds were to be invested and the income
paid to one person for life and the capital to her children on her
death. When the trustees suggested selling part of the land subject
to the lease in order to pay some expenses, all the beneficiaries,
including the life tenant, requested them to raise the money by a
mortgage instead as they expected the value of the land to rise
substantially as the lease ran out. In this they were proved to be
right; the reversion was valued at £9,000 at the testator's death
and a part was eventually sold about twelve years later for almost
L25,000, leaving another part then valued at E15,000 still
unsold . In the meantime it had produced an income of only
L32 a year and, after the sale, the life tenant asked to be paid,
out of the proceeds, what she would have received if the rever-
sion had been sold immediately after the testator's death and the
proceeds invested . Sir Richard Arden M.R. clearly considered
that she would ordinarily have been entitled to this but held that
she had precluded herself from claiming it by unconditionally
joining in the request to the trustees to postpone sale. It will be
noticed that his reasoning supports the conclusion of the Court
of Appeal and the Supreme Court in the Stekl case, although it
was not cited by either of them.
The next case in point of time, and the earliest of those
cited by the Court of Appeal in Re Stekl,ls is Yates v. Yates."
17 Ibid .
19 (1860), 28 Beav . 637 .
1976) Comments 683
The relevant facts of this case were exactly the same as those
of Re Stekl with the important exception that the trustees had
only a power of sale and not a trust for sale . The difference,
of course, is crucial, and the life tenant's claim failed . But
Sir John Romilly M.R. began his judgment by stating that "Where
a testator gives property to trustees, with an absolute trust for con-
version, and with a discretion as to the time at which the con-
version shall take place, if, from any causes whatever, arising from
the exercise of the discretion and judgment of the trustees, the
conversion is delayed, then the tenant for life is not to be pre-
1976 CanLIIDocs 14
judiced by that delay, but is to have the same benefit as if
the conversion had taken place within a reasonable time from
the death of the testator, which is usually fixed at twelve months
from that period ."'20
It will be noticed that Sir John Romilly refers generally to
"property", with no mention of its nature, or of the nature
of the bequest.
The next case referred to by the Court of Appeal is Went-
worth v. Wentworth, 21 a decision of the Privy Council on appeal
from Australia. The will in that case devised the residuary realty
to trustees on trust for sale, with power to accumulate the income
and postpone conversion for not more than twenty-one years.
At the end of the accumulation the estate was to be converted,
and the income was to be paid to life tenants, and the capital
ultimately to others. The testator's land was in a coal field, but
there was no mine on it at his death. During the twenty-one
years, the trustees granted a mining lease, as they were empowered
to do by the will, and a mine was opened . For the rest of the
twenty-one years, they accumulated the royalties. When the
twenty-one years ended, the power to postpone conversion ceased,
and for the trustees to retain the coal mine further was a breach
of trust, but all the beneficiaries wanted them to keep it. But
since the mine had been opened after the testator's death, the
whole of the royalties received would normally have been
capital. The Privy Council directed that the property be valued as
at the expiration of the twenty-one years and the life tenants be
paid, out of the royalities, an income based on that value. This
case, although heavily relied on by the Court of Appeal, seems to
be of questionable relevance, in that the real point at issue was
the division of mining royalties as between income- and capital.
21D Ibid .
21 [19001 A.C. 163.
At this point the English authorities diverge sharply from

the decision in Re Stekl. There are four cases, all decided at first
instance . The first is Re Searle .22 Land was devised on trust for
sale with a power to postpone sale. The sale was postponed .
Kekewich J. held that the tenant for life was entitled to the
actual income. He said : 23
But I do not base my judgment upon the language of this particular
will, but on the general principle that, where there is a trust for sale
with a power to postpone which has been exercised, or where the sale
without any impropriety has been postponed, the rents and profits of
1976 CanLIIDocs 14
the real estate until sale are payable to the person who would be
entitled to the income of the proceeds of sale .
There are two oddities about this case. The first is that
Kekewich J. based his decision principally on Casamajor v.
Strode,2} and makes no mention of Walker v. Shore,'25 although
the former is reported only in a note to the latter and the latter
is in fact opposed to his decision. The second oddity is the
treatment given to it by McIntyre J.A. in delivering the judgment
of the Court of Appeal in Re Stekl. His Lordship quotes the
extract quoted above with apparent approval, treating it as an
authority supporting his conclusion that the life tenant should
be paid a notional income based on the value of the land, whereas
it is in fact directly opposed to that conclusion.'26
It may be mentioned that Yates v. YateS=, was cited in
Re Searle ,2s but Kekewich J. distinguished the passage from the
judgment of Sir John Romilly quoted above on the ground that
it only mentioned "property" and contained no clear statement
that it referred to realty. Since the property involved in Yates v.
Yates was realty, it is difficult to see why Sir John Romilly
should start his judgment by stating a principle which he con-
sidered to be applicable only to personalty.
In the second of the four English cases, Re Earl of Darnley,2s
Kekewich J. followed his own previous decision in Re Searle, and
Warrington J. again followed it in the third, Re Oliver."
22 [19001 2 Ch. 829 .

23 Ibid., at p. 834.
2# Supra, footnote 16.
25 Ibid.
''2s Supra, footnote 3, at p. 496 .
29 [19071 1 Ch. 159.
30 [19081 2 Ch. 74.
1976] Commentaires_ 685
The fourth case was Re Woodhouse, 31 a decision of Simonds

J. In this case, the assets in question were reversionary interests
in realty, included in a residuary devise on trust for sale, which ,
produced no income . Following Re Searle and Re Oliver,
Simonds J. held that the tenant for life was entitled only to the
actual income, which was nil, and that the rule in Re Chesterfield's
Trusts had no application to realty . Again it is to be noticed
that although Casamüjor v. Strode was cited in argument and in
the judgment, Walker v. Shore was not, even though it was
precisely in point, and clearly opposed to the conclusion at
1976 CanLIIDocs 14
which Simonds J. arrived.
These English decisions have been followed in at least two
cases in Australasia. 32
In England itself the whole question has by now become
academic, as the life tenant's right to the income of land pending
conversion has been settled by statute. By subsection (2) of
section 28 of The Law of Property Act, 1925,33 which applies
to any trust for sale of land created after 1925, the life tenant is
entitled to the actual income from the land pending conversion.
But in other jurisdictions, where the question has not been
thus resolved by statute, it is obvious from the contrast between
Walker v. Shore" on the one hand and the more recent English
decisions on the other that it was, at the time of the decision in
Re Stekl, very much an open one. Presumably the decision of
the Supreme Court has now settled it for all the common law
provinces of Canada. It is however unfortunate that it should
have done so in a judgment which treats the question as turning
solely on the wording of the will and cites none of the previous
authorities, but merely affirms a judgment of the Court of Appeal
which itself fails to cite the strongest previous authority in its
support, Walker v. Shore, and mentions only one of the several
recent contrary decisions, and furthermore mistakenly treats that
one, Re Searle, as if it were a favourable authority. These circum-
stances cannot but rob the decision of the Supreme Court of
the authority it might have possessed in other jurisdictions.
It should also be remembered by practitioners that, whatever
answer had been given to the question, the result inevitably
would not coincide with the wishes of all testators: It may well be
31 [19411 Ch . 332.
32 Re Kerrigan, [1916] V.L .R . 516; Re Hunter, [1958] N.Z.L .R . 654.
3345 & 16 Geo. 5, c. 20 .
that, in the particular circumstances of his estate, Mr. Stekl

wanted his daughter to receive the income which the Supreme
Court awarded her, and would have been disappointed if the
decision had gone the other way. But the result will be the same
even though the estate also contains authorized investments
yielding a substantial income . It will also be the same if the
estate includes, say, an apartment block which yields an income
which is either higher or lower than could be obtained from
authorized investments of a similar value ; in the one case the
remaindermen and in the other the life tenant will be able to
1976 CanLIIDocs 14
insist on a notional conversion. The practical result of the decision
therefore is that if the testator wants the life tenant under a trust
for sale of land to receive, until the sale of the land, the actual
income that it produces, he must say so .
R . B . CANTLIE *
R . B . Cantlie, of the Manitoba Bar, Counsel for the Manitoba

Securities Commission, Winnipeg .

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COMMENTS

SALE OF GOODS-NATURE AND EXTENT OF IMPLIED WARRANTY

1 56 & 57 Vict., c. 71 . See Montforts v . Marsden (1895), 12 R.P .C.

In November 1970, the plaintiffs sued the defendants for the

On 18th December 1973, Mars-Jones J. directed that judgment should

patent was granted$ but even before the complete specification

may be different if claimed under section 12(2) rather than

2o Atkin L.J . noted the similarity in Niblett v. Confectioners'

2 2 [19211 3 K .B . 387, at pp . 394, 399 and 403.

paramount might be an "exception" to section 12 (2) as it would

distinguishing the area of operation of section 12(1) and section

34Atiyah . op . cil., footnote 11, p. 55 .

after all, he sold the goods" . 39 Microbeads reaffirms the strict

39 Supra, footnote 2, per Lord Denning M.R ., at p . 533 .

the approach of the Canadian courts to exclusion clauses

45 For a recent statement, see the judgments of the Supreme Court of

Microbeads reminds us of the problems of section 12 . They

where the patent granted subsequent to the defendants' acquisition of the

Since the privilege extends neither to "real" evidence obtained

Re Inquiry re Department of Manpower and Immigration in Montreal

cross-examination on the merits on the voir dire. Fortunately,

9 R. v. Gauthier (1975), 18 Crim . L .Q. 4, 33 C .R.N.S. 46 (S .C .C.) .

11ACorbett v. The Queen (1973), 25 C .R.N .S . 296 (S .C.C .) ; see also

a fair trial. As to the right to counsel before trial, the breathalizer

13 Brownridge v, The Queen, 119721 S.C.R . 926, 18 C.RN .S. 308,

because of the illegality or impropriety of methods used to obtain

Appellate courts have made extensive use of the statutory

Canadian courts have interpreted the Bill of Rights'- 9 in such

15 R . v . Wray, [1971] S .C .R . 272, [1970] 4 C.C .C. 1, 11 D .L.R .

trial judge gave a curative direction to the jury) ; R . v. Bourget, [1973]

will interpret these provisions, but the early cases indicate a

The Kienapple Case

22E.g ., R. v. Demeter (1975), 19 C.C .C. (2d) 321 (Ont. H.C .) ;

27 R . v. Peda, [1969] 1 O .R . 90, 4 C .R .N .S . 161, [1969] 2 C .C .C .

(nolle prosse or nolle prosequi) in the described circumstances

The Kienapple case precludes only multiple convictions for

31 The stay of proceedings, as it is more commonly known, is

33R . v. Basque (1975), 11 N.B .R. (2d) 65 (N .B .S .C .A .D .) .

sequence" in Canadian and English law.35 Mr . Justice Laskin's

Going out on a limb and thus weakening his reasons to do

In civil cases, res judicata comprises bar and merger.37 If

Where the accused has been acquitted of a criminal offence,

s5M . Friedland, Double Jeopardy (1969), p . 204 .

condemned acquittal of one charge and conviction of a second

3s R . v . Peda, ibid ., at pp . 103-106 (O .R .), 172-175 (C.R .N .S .),

conviction of a charge laid after an earlier different charge in

To support the existence of the "same transaction" test as

44 Wemyss v . Hopkins (1875), L.R . 10 Q .B . 378 ; R . v. Miles (1890),

allegations or the elements of the various offences . Because

46 For this reason, it is difficult to determine which Canadian cases

R . v . Kisinger and Voszler, [19721 3 W.W .R. 147, 18 C.R .N .S . 120,

4s M. Friedland, Double Jeopardy and Unreasonably Splitting a Case

of a course of conduct .50 Such factors are so ambiguous and

Prior to the Kienapple case, although Laskin J., did not

50 The American experience confirms that these factors are relevant

They went on to establish as a general rule that in future,

53 In Canada, a prohibition against joinder of other counts with a

to S.C.C . granted) ; Ewaschuk, op . cit., footnote 23 .

I think it of first importance to recognize that the offences created

In the next paragraph of his judgment, Ritchie J. applied a

59 Recent cases on "included offences" are : R . v . Maika (1974), 27

Mr . Kienapple may be an improvement of his chance of parole

For defendants in general, the Kienapple case does have