Criminal Law Notes Final

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Criminal Law Notes- Final
Criminal Law (University of Windsor)
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Table of Contents
OVERVIEW OF CRIMINAL LAW...........................................................................................................................2
PRINCIPLES OF EXCULPATION (TO FIND SOMEONE NOT GUILTY OF A CRIME)..............................3
THE CRIMINAL LAW AND DIVISION OF POWERS.........................................................................................3
CASES ULTRA VIRES JURISDICTION OF PROVINCE....................................................................................4
SWITZMAN V. ELBLING. SCC 1957..........................................................................................................................4
R V MORGENTALER, SCC 1976...............................................................................................................................5
WESTENDORP V THE QUEEN, SCC 1983.................................................................................................................5
CHARTER OF RIGHTS AND FREEDOMS SECTIONS.......................................................................................6
CODIFICATION..........................................................................................................................................................7
COMMON LAW DEFENCES....................................................................................................................................7
CRITERIA FOR ESTABLISHING CRIMINAL LAW (PROHIBITION, PENALTY, CRIMINAL
PURPOSE).....................................................................................................................................................................8
Reference Re Dairy Act (Classic Margarine Case), 1949 SCC..........................................................................8
True Crime...........................................................................................................................................................9
ORGANIZING PRINCIPLES OF CRIMINAL LAW.............................................................................................9
NULLUM PRINCIPLE...................................................................................................................................................9
BURDEN OF PROOF..................................................................................................................................................10
WHAT TOOLS DO WE GIVE CRIMINAL COURTS TO FULFILL THEIR JUDICIAL REVIEW ROLE?...........................10
ASSAULT: UNWANTED TOUCH OR GESTURE WITHOUT CONSENT......................................................11
R V JOBIDON (1991 – SCC)*BAR FIGHT*..............................................................................................................11
R V W(DL), 2016 *BESTIALITY*...........................................................................................................................13
HARM PRINCIPLE...................................................................................................................................................14
R V RDS, 1995 *BLACK BOY AND WHITE POLICE OFFICER*...............................................................................14

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Overview of Criminal Law

- Criminal law is a result of a complex process that starts with the decision of a legislature
to define something as prohibited
- Criminal law in Canada is enacted by the federal parliament, which under s 91(27) of the
Constitution Act, 1867 has exclusive jurisdiction over criminal law and procedure
- The Canadian Charter of rights and freedoms places limits on the criminal law
o Ex: criminal offenses that prohibit various forms of expression must be justified
by the state as demonstrably justified and reasonable limits under s 1 of the
charter
- Criminal laws are designed primarily to denounce and punish inherently wrongful
behaviour and to deter people from committing crimes or engaging in behaviour that
presents a serious risk of harm
- Most criminal offences are regulatory- these can be enacted by the federal parliament,
provinces of municipalities
The Criminal Process

- Different parts of the justice system receive portion of spending
o 61% on the police
o 22% on corrections (federal and provincial prisons)
o 9% on courts
o 5% on legal aid (to fund the defence of those accused of crime)
o 3% on prosecutors (gov. official who defends the person accused of committing
the crime)
o Criminal process traditionally starts with the investigation of crime by the police
and the criminal trial process (including pre-trial proceedings)
Principles of Criminal Liability

- At a criminal trial, the morally innocent should not be found guilty and punished
- As required by the presumption of innocence, the Crown (gov./state) must generally
prove beyond a reasonable doubt to the judge or jury that the accused committed the
prohibited act or actus reus (overt act/physical act of the crime- ex: taking of another
person's property) with the required fault elements and mens reus (mental intent to do
the crime)
- Fault elements are sometimes specified in the working of an offence such as:
"intentionally", "knowingly", "recklessly", "negligently"
- A subjective fault or mental element depends on what was in the particular accused's
mind at the time that the crime was committed
- An objective fault element depends on what a reasonable person in the circumstance
would have known or done (ignorance of the law is not an excuse)
- Regulatory offences: those lower classes of criminal law offences in which mens reas is
not required

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Principles of Exculpation (to find someone not guilty of a crime)

- If someone commits a crime with the required fault, the accused may still be acquitted if
these defences apply"
 Mental disorder
 Intoxication
 Self-defence
The Criminal Law and Division of Powers

- 91(27): division of powers- Subject-Matter Jurisdiction
 What are the essential elements of a true crime, does a law meet the
requirements?
 You can only use 91(27) whether province or Canada should have jurisdiction
over an issue
 Should marijuana be legalized?
- The federal parliament has jurisdiction under the constitution act to establish maintain
and manage prisons (for serious crimes-2+ years)
- The provinces have jurisdiction to impose punishment by way of fine, penalty, or
imprisonment in order to enforce valid provincial laws
- Provinces also have jurisdiction for administration of prison for less serious crimes (less
than 2 years), as well as property and civil rights
- Federal government appoints the judge of higher superior trial court while province
appoints judges to provincial court, federal gov appoints appeal court judges
- Crime as defined by the Criminal Code and other statutes, like murder, assault, theft,
fraud, property crimes like arson… are all federal-level crimes. Infractions of regulations,
like speeding on the highway, not licensing your pet, or serving liquor without a license,
are usually provincial or municipal regulatory offenses.
- Section 91 of Constitution Act (federal heads of power)
 subsection 27 gives federal the exclusive jurisdiction over the criminal law,
except the constitution of courts of criminal jurisdictions, but including the
procedure in criminal matters
 This doesn’t mean province can't enact offences- ex: careless driving but
its purpose is not criminal law, its 92(13)(16)
 subsection 28 purpose is to establish, maintain, and manage penitentiaries
 Why federal government has the power over certain things:
 Consistent application is a reason we have federal jurisdiction over
something
 National unity
 National standards/norms- what is acceptable and unacceptable conduct
in regards to risk of hard
 What do you do if there's conflict
- Section 92 of Constitution Act (provincial heads of power)
o Section 13- property and civil rights in the province
o Section 16- all matters of a merely local or private nature in the province

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Cases ultra vires jurisdiction of province
Switzman v. Elbling, SCC 1957

Facts - Max Bailey, was a resident of a Park Avenue apartment in Montreal.
- In February 1948, Bailey, a former Montreal City Councillor and a
Communist himself, wanted to assign his apartment to John
Switzman, a prominent Marxist who wanted to turn the apartment
into a local Communist hub.
- Communist: person advocating class war and leading to a society in
which all property is publicly owned and each person works and is
paid according to their abilities and needs
- Freda Elbling, the landlord, tried to prevent Switzman from taking
the apartment for fear of having her building appropriated by the
province under the Padlock Law. Failing that, she applied to the
court to have the lease cancelled.
- Padlock law: 1937 Quebec statute empowering the attorney general
to close, for one year, any building used for propagating communism
Issue - Is the Padlock Law ultra vires the provincial government?
Decision - Supreme court found in favour of Switzman that it was ultra vires the
provincial government
Analysis - Supreme court said this isn't about property, this is a matter of
criminal law and so falls under the federal jurisdiction
- The criminal law purpose here is risky behaviour (acts of violence,
moral evil, national security) and so for that purpose, it is a true
crime
R v Morgentaler, SCC 1976

Facts - Morgentaler set up private abortion clinics in various provinces, the
province at issue here is Nova Scotia.
- In response, the govt of Nova Scotia created a regulation under the
Nova Scotia Medical Services Act to prohibit abortions outside of
hospitals.
- He was charged under this act for doing 14 abortions in his private
clinic.
- Morgentaler argues that the Act and regulation violate a women’s
Charter right to security of the person and equality.
Issue - Are the Act and regulation ultra vires the province of Nova Scotia
and part of the Federal head of power under s.91(27)?
Decision - The Act and the regulation, which are very intertwined together, are
ultra vires the province as their purpose is the legislation of an area
of criminal law.

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Analysis Pith and Substance

- Purpose: comments made in a govt form reveal the purpose of the
legislation was to prohibit Morgentaler from setting up his clinic, but
“coloured” the legislation to make it appear it was for the quality
and regulation of healthcare (Colourability)
- The legal effect of the introduced regulations partially reproduces
that of the now defunct s.251 of the Criminal Code
- Effect: the prohibition abortion clinics; restrict access to abortions
(essentially prohibited bc they did not allow abortions in hospitals) –
Criminal
The Act in question and the impugned provisions duplicate Criminal Code
provisions
Westendorp v The Queen, SCC 1983

Facts
- Lenore Westendorp and a friend approach an undercover police
officer on a street in Calgary and solicited him for sex.
- They were both arrested and charged under a municipal by-law that
prohibited being on the street for the purpose of prostitution
- At trial, Westendorp was found guilty under the by-law.
- Westendorp appealed to the Supreme Court on the grounds that

the law was unconstitutional as it was criminal law and should only
be legislated by the federal government
Issue - Was the by-law ultra vires the province?

Decision - Yes, it was
Analysis
Laskin C.J., writing for a unanimous Court, held that the law was ultra vires
the province. Laskin found that the law was "colourable", as its true
purpose was not to keep the streets safe but to control or punish
prostitution. He held that:
If a province or municipality may translate a direct attack on

prostitution into street control through reliance on public nuisance,
it may do the same with respect to trafficking in drugs. And, may it
not, on the same view, seek to punish assaults that take place on
city streets as an aspect of street control! However desirable it may
be for the municipality to control or prohibit prostitution, there has
been an overreaching in the present case which offends the division
of legislative powers. (p. 53-54)

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Charter of Rights and Freedoms Sections

- Section 1: rights and freedoms
- Section 7: life, liberty, and security
 A true crime always have imprisonment as a potential penalty and this is
triggered by criminal law and if an act constitutes as it
 Charter 7 sees if we can challenge the parliaments decision to legalize a certain
issue
 Nullum principle: criminal law must be fixed and certain to set out an identifiable
zone of risk, cannot be vague or overbroad and cannot be retroactive
- Section 7: general fairness section
o “Charter rights breach” is something unfair
- Section 8: secure against unreasonable seizure/search
- Section 9: arbitrary detainment
- Section 10: arrest- right to come before a court within 24 hours of your arrest;
otherwise Charter breach
o Informed why
o Counsel
o Detention by habeas corpus
- Section 11: charged with offense
o Notified of offense
o Tried fairly
o Not compelled to be a witness
o Presumed innocent until proven guilty
o Not denied reasonable bail
o Outside of military, maximum sentence of 5+ years must be tried with a jury
o Rationale for jury v judge
 Back then, the people you live with/community should choose that
 The law was not that complex so it was easier to have people choose,
because not much they had to know
 The jury was the most affected by your actions
o Not found guilt of something new; outside original offense
o Not tried again if acquitted
o If found guilty, and punishment time changes, be subject to lesser
- Section 12: unusual cruelty
o Section 13: witnesses must have no incriminating evidence- If you are on the
stand and tell the court what you did, then you cannot be incriminated for it
- Section 14: right to interpreter
Codification
- Primary source of criminal law: criminal code
- You use the criminal code to determine the boundaries

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- What's the appropriate role for the court and parliament, and is there a danger that if
the court is too broad, it will instead be focusing on legislature
- Role of court in determining boundaries- how will we know when court has exceeded
boundaries?
- Our criminal law is codified and so offences that are criminal are listed in the Criminal
Code and do not need to be created by the courts (common law)
- “There must be no crime or punishment except in accordance with fixed, predetermined
law”
- Crimes not be created or punished on a retroactive basis
- In the Charter
o ss 11 (g) and (i)
o s7
- Should be certain; not vague
o Is the life, liberty or security of a person being denied by the law?
- Not in the code? Not an offence
- You can still be held in contempt of court even if its not codified (still preserved by s 9)
Common Law Defences

- Why should offences at common law (judge made laws as opposed to legislation) be
prohibited under s 9(a) of the Criminal Code but not defences, excuses or justifications?
- Section 3(7) is the authority for the courts of criminal jurisdiction to adopt, if
appropriate in the view of court, defences including the defence of entrapment
- Defences are allowed as common law because we want to give the accused every
opportunity available to defend themselves
o If parliament doesn't like common laws defence, it can take it away
Common Law Offences

- Section 9 of the Criminal Code abolishes common law or judge-made offences with the
exception of contempt of court
o It keeps contempt of court because judges need some power to run their courts
o Contempt of court is similar to nullum because it's telling the person they're in
risk after a warning
- we have a prohibition against common law offence (a court or judge decide it should be
an offence). Our common law is codified and so we do not have courts or judges make
that judgement.
Criteria for Establishing Criminal Law (Prohibition, Penalty, Criminal Purpose)
Reference Re Firearms Act (2000)

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Facts Government of Canada enacted the Firearms Act to require the holders of all
firearms to obtain licenses and register their guns. The Government of Alberta
claims that this matter falls out of federal jurisdiction because it deals with private
property and thus is a matter of provincial jurisdiction
Issue What is the pith and substance behind this legislation? (What is the Firearms Act
really trying to do?)
Analysis The law in “pith and substance” is directed to enhancing public safety by controlling
access to firearms through prohibitions and penalties. The regulatory aspect is
secondary to its primary criminal law purpose.
Ratio To prove that something is criminal law, three criteria must be satisfied:
1. It must have a valid criminal purpose;
2. It must be backed by a prohibition; and
3. It must have a penalty (more than mere monetary compensation)
Reference Re Dairy Act (Classic Margarine Case), 1949 SCC

Facts “Pro butter” dairy farmers created a law prohibiting margarine. “Margarine is not
butter” and stated margarine is a health concern. This case deals with a prohibition
(instead of a regulation)
Issue Is s.5(a) of the Dairy Industry Act ultra vires the Parliament of Canada (or intra vires
under s.91(27)? To what extent?
Source Section 5(a) of the dairy industry act provided that "no person shall manufacture
import…or offer, sell or have in his possession for sale..margarine..other substitute"
Analysis Rand J, in his concurring opinion for the majority struck down the prohibition on
production of margarine on the grounds that it was not valid criminal law. The
prohibition on importation of margarine, however, was upheld under the
federal Trade and Commerce power. He outlined a test to determine if a law fell
under the criminal law:
“A crime is an act which the law, with appropriate penal sanctions,
forbids; but as prohibitions are not enacted in a vacuum, we can
properly look for some evil or injurious or undesirable effect upon the
public against which the law is directed. That effect may be in relation
to social, economic or political interests; and the legislature has had in
mind to suppress the evil or the safeguard the interest threatened.”
Holding:
- The prohibition of the importation of the goods mentioned in this section is
intra vires the Parliament of Canada
- The prohibition of manufacture, possession, and sale is ultra vires the

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Parliament of Canada
Ratio Criminal law public purpose: “evil, injurious or undesirable public effect against
which the law is directed”
True Crime
- Supreme court says that a crime is an act which is a prohibition with penalty including
imprisonment enacted for a criminal law purpose
o Prohibition: designed to serve an educative function as to the limits of
acceptable behaviour
 Using sexual assault crime to see what constitutes as an acceptable and
non-acceptable behaviour about consent
o Penalty: imprisonment
 Potential of imprisonment designed to reflect the seriousness of the
conduct (denunciation) and to deter (both the individual (specific
deterrence) & others (general deterrence)
o Criminal law purpose can include:
 Protect against harm, violence, public safety/health
 Maintain public order
 Enforce morality (gambling, sexual morality)
 Evil, injurious or undesirable public effect (margarine case)
Organizing Principles of Criminal Law

Nullum principle
- criminal law must be fixed and certain to set out an identifiable zone of risk, not be
vague or overbroad and can't be retroactive
o All about certainty
o Criminal law must not be vague or overbroad otherwise if broad-no one will
understand what's it trying to enforce or vague- capturing conduct that doesn’t have
risk of hard
o Criminal law can't be retroactive
 They can’t charge people who committed the offence before the law
came into place
 Section 11(g) Charter- provides exclusive constitution protection against
retroactive punishment
Burden of proof: the crown has the onus to provide proof beyond reasonable doubt
Presumption of Innocence: the Crown must generally prove beyond a reasonable doubt to the
judge or jury that the accused committed the prohibited act or actus reus with the required
fault element or mens rea

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Role of Criminal Courts

1) Adjudicative function
o legal process by which an arbiter or judge reviews evidence and
argumentation, including legal reasoning set forth by opposing parties or
litigants to come to a decision which determines rights and obligations
between the parties involved.
o Determine judicial interim release (bail)
o Trial process to determine if Crown can prove offence
 Judge alone trial (the most common)
 Jury trial
o Sentencing in cases of guilty please (85% of all charges plead guilty) or findings of
guilt and the case proceed directly to sentencing
2) Interpretative/Judicial review function
o Interpret Criminal Code provisions
 Using and creating precedent
o Ensure feds/provinces respect constitutional jurisdiction (subject-matter
jurisdiction- division of powers)
o Ensure parliament's decisions to criminalize conduct meets constitutional
(Charter) minimum standards
*in provincial courts, there's just a judge, in appeal court there's a jury alongside a judge*
What tools do we give criminal courts to fulfill their judicial review role?
1) Statutory Interpretation (common law & Interpretation Act)
o Golden rule of statutory interpretation: the words of the statute must be
considered in context, in their grammatical and ordinary sense, and with a view
to the legislative scheme's purpose and the intention of Parliament
o Primary tool we give courts to determine appropriate boundaries and parliament
intent
 Plain meaning
 Bilingual
 How does dictionary define bestiality?
 Context
 What other offences are associated with offence in question?
 Other section in same part of criminal code
 Legislative history
 How has the provision been interpreted in the past
 Object and intent of the provision- what did parliament intend to
capture?
 Charter values
 Strict interpretation
 We had this for criminal law
 We would limit the boundaries

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 Doctrine of strict interpretation: This means that

a criminal statute may not be enlarged by implication or intent
beyond the fair meaning of the language used or
the meaning that is reasonably justified by its terms.
2) Public Policy
o Should courts be concerned with public policy? Or is that for parliament to
decide?
o Social utility test comes from public policy- courts looking at other contexts and
saying there has to be some basis to distinguish fist fights from sporting events -
One of the ways to distinguish is social ability
3) Principles of fundamental justice (Section 7-Charter)
o Arbitrariness (para 111) (Bedford)
o Overbreadth (para 112) (Bedford)
o Vagueness (para15) (Canadian Foundation)
o Gross disproportionality (para 120) (Bedford)
Assault: Unwanted Touch or Gesture Without Consent
R v Jobidon (1991 – SCC)*bar fight*

Facts - Jobidon killed a man named Haggart, who was celebrating his bachelor party,
in a fistfight outside of a hotel bar.
- The men had fought inside the bar, but had been kicked out and continued
fighting outside.
- Although Haggart was bigger, and trained as a boxer, Jobidon landed one
punch directly in Haggart's face, which knocked him unconscious and he fell
on a hood of a car.
- Jobidon then punched him four times in the face.
- Haggart was in a coma and died after being taken to the hospital.
- Jobidon stated that he did not know that Haggart was unconscious when he
continued to hit as it all happened so fast.
- Both men had consented to the fight.
- The appellant was acquitted at trial but convicted upon appeal.
Issue Can one consent to bodily harm?
The principle is not codified in the criminal code but the common law assists with
defining it within this context.
Sources Section 265 of Criminal Code
- Without consent, applies harm directly or indirectly
- Threatens by act or gesture to harm the person
Section 266 (hybrid offence) of Criminal Code
- Everyone who commits an assault is guilty of:
 Indictment – liable to imprisonment for a term not exceeding 5 years
 Summary Conviction
Holding Decision in favour of the Crown; Guilty of Manslaughter

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Analysis CoA
In the lower court he was found NOT GUILTY because Haggart consented to the fight
SCC
Jobidon argued that the underlying offence of assault is not applicable because both
parties consented to the fight, and assault must lack consent; without this, he cannot
be convicted of manslaughter. The court does not accept this. The court holds that
the assault provision must be interpreted in light of the common law. Prior to
amendment, the crime of assault was codified verbatim from the common law. As
such, it was to be coloured by common law limitations on the element of consent in
assault. It was a principle of common law that it would be against public policy to
allow fighting with the intent to cause bodily harm to be legal. Consequently, since
intention to cause bodily harm was itself illegal, consent to fighting could not be a
valid defence.
*There are common law limitations for public policy reasons that would make what
would otherwise appear to constitute agreeing to or consenting to serious bodily
harm not a legally effective form of consent.
- The principle emerging from Jobidon: “The limitation demanded by s. 265 as
it applies to the circumstances of this appeal is one which vitiates (negates)
consent between adults intentionally to apply force causing serious hurt or
non-trivial bodily harm to each other in the course of a fist fight or brawl.”
(290)
- A person can only consent until a certain point, after which if it’s causing non-
trivial harm (significant harm), then they are not legally allowed to consent.
So in this case, Haggard could not have agreed to being killed or significantly
harmed
- During a fist fight,-you cannot rely on consent as a defence to assault under
section 265(1)(a) where there is the intentional infliction of serious or non-
trivial bodily harm (define in section 2 of criminal code)
- CRITICAL QUESTION: What's the social utility involved with social conduct-
concludes that there is no social utility
- Parliament has created many exceptions for consent which would be deemed
to be non-consensual
- The rule that emerges from this case is that consent is vitiated (destroy or
impair the legal validity) by law, there is no legally valid consent where adults
intentionally apply force causing non-trivial harm (significant hurt) in the
course of a fist fight or brawl
o Section 2 of criminal code defines bodily harm: this says what level of
harm vitiates consent-any level of bodily harm that injures or hurts
the person
- Even consenting to injury can only be held to a certain extent of harm, the
court will consider that at a certain point, consent is usually not issued
- SNM will not be criminalized as long as it's within the scope of consent (does

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not exceed the level of consent that's normal)

- There has to be continuous consent and once the plaintiff was passed out, he
was no longer consenting and that's when the fight became non-consenting
- The issue here is that it leaves it up to the court to decide what has social
utility
Ratio  Absence of consent isn’t required to be proven in a fight
 Person cannot consent to death or to a violent force or bodily hard that is
unreasonable conduct in the circumstances
 Even if you consent to a fight, you cannot consent to the other person using
excessive force to kill you
Dissent Sopinka (dissent), in the minority, takes issue with what he sees as the majority's
attempt to create an offence where one does not exist in the Code by applying the
common law; intentional application of force with the consent of the victim.
R v W(DL), 2016 *Bestiality*

Facts The respondent was convicted of several offences, including the offence of bestiality.
He appealed the conviction, arguing that penetration is an element of the offence of
bestiality, and that because no penetration occurred in this case, he ought to have
been acquitted.
Issue Is penetration required for it to be considered bestiality?
Decision Majority of the Court of Appeal allowed the appeal and acquitted the respondent of
the bestiality count
Holding The Crown argued that the meaning of bestiality is unambiguous and refers to sexual
activity of any kind between a person and an animal.
Analysis  Any act of sexual exploitation with an animal is bestiality- penetration does not
have to be involved
 After W decision, parliament added a section in the criminal code to say that
bestiality meant any contact for a sexual purpose, with an animal
 Trial judge said "Members of our society have a responsibility to treat animals
humanely, which is especially true for domesticated animals that rely on us.
Physical harm is not an essential element of bestiality; that is because, like many
sexual offences in the Code, the purpose of the bestiality provisions is to
enunciate social mores. Those mores include deterring non-consensual sexual
acts and animal abuse" (DLW, BCSC, para 310).
 Taking a third approach, Chief Justice Bauman of the BCCA concluded in his
dissent that, after the 1954 amendment of the Criminal Code, “the offence of
bestiality did not require anal penetration, or indeed any kind of penetration”
(para 43).
Harm Principle

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R v RDS, 1995 *black boy and white police officer*

Facts  N.R. (black) was a suspect in joyriding and theft, and was in the process of being
arrested by a police officer, Stienburg (white), when R.D.S. (black) approached
the scene
 Differing statements:
o Officer says R.D.S ran into him with his bike in an attempt to help his
cousin N.R get free, however R.D.S says that he simply came over to talk
to N.R and ask if he wanted his mother to be told, at which point the
officer harassed him or he’d be arrested
 Only witnesses were R.D.S and Steinburg
 R.D.S was charged with assaulting a police officer for the purpose of interfering
with his arrest, assault, and resisting arrest
 Youth judge dismissed the case
 Justice Glube allowed the original appeal in a solo decision
COA: dismissed an appeal from that decision
Issue Is there reasonable apprehension of bias on the part of the judge?
*In Canadian law, a reasonable apprehension of bias is a legal standard for
disqualifying judges and administrative decision-makers for bias.*
Holding There is a reasonable apprehension of bias if an informed person, viewing the matter
realistically and practically and having thought the matter through, would conclude
that there is one.
“To be sure, social context evidence is a type of “social fact” evidence, which
has been defined as “social science research that is used to construct a frame
of reference or background context for deciding factual issues crucial to the
resolution of a particular case” (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R.
458, at para. 57).”
Analysis Youth Court Trial: Sparks
 Dismissed charges stating that the Crown had not proven beyond a reasonable
doubt that R.D.S had hit the officer
 Sparks said that some of the actions of the police officer fit in with the
“prevailing attitude of the day” indicating that she believed police officers
tended to be racist towards young black males
 Made the Crown appeal on the basis that there was a reasonable apprehension
of bias in her decision, which Glube agreed with, remanding the case back to
youth court for a new trial
Flinn (COA)
 Test for reasonable apprehension of bias by saying that the apprehension was
bias “must be a reasonable one, held by reasonable and right minded persons,
applying themselves to the question and obtaining thereon the required
information”
 Sparks’ words satisfy that this test because a reasonable person would
conclude that there is an apprehension of bias
Supreme Court
 Allowed the appeal and reinstate the original acquittal
 Same test, and although concluded that Sparks was “close to the line” they did
not find a reasonable apprehension of bias

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- Entirely legitimate for the judge to use her personal experiences and
understanding of the justice system in her decision
Rati - RDS draws a distinction between findings of fact based exclusively on
o personal judicial experience and judicial perceptions of applicable social
context, and findings of fact based on evidence viewed through the lens of
personal judicial experience and social context. The latter is proper; the
former is not.
- You can’t use the social context evidence as evidence but you can use it as a
lens or what inferences you can draw from the evidence (you can’t use the
fact that police officers are usually biased against black youth, but you can
use the choke hold as an inference that he could be biased and overdid the
action
- There is a reasonable apprehension of bias if an informed person, viewing
the matter realistically and practically and having thought the matter
through, would conclude that there is one
Debating the Harm Principle
John Stewart Mill: The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to others
 Mills thoughts formed the basis for the central debate regarding the limits of the criminal
law – namely whether it is legitimate to use the most extreme and violent tool at the
disposal of the state, the criminal law, to enforce morality or whether criminal laws must
always be based on preventing harm to others
 Criminal law can only exist to ensure no harm to others
 Distinguishes between the use of government power to achieve moral ends (which Mill
views as illegitimate) and the use of such coercive power to prevent harm to others – the
only permissible use of such force
Hart-Devlin Debate
Devlin: The Enforcement of Morals

- His perspective was rejecting the harm principle, don’t need to prove harm – criminal
law was based on moral principles
- Speaks to society’s “moral fabric”
- He argued that the criminal law must reinforce the moral norms of society in order to
maintain social order
- Doesn’t agree with consent (previously suicide was criminalized, whereas now it isn’t)
Public Morality
What is acceptable to the ordinary man, the man in the jury box, who might also be called the
reasonable man or the right minded man”
- Even if you disagree with the morals, you sometimes have to agree that it’s better for
society

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Hart: “Immorality and Treason”

- Critiqued Devlin and reiterated Mill’s “harm principle”
- Consent is relevant to some crimes, but not a defense; there is something in society that
you cannot consent to: your own death/assault
- We must ask two questions
(1) Whether a practice, which offends moral feeling, is harmful, independently
of its repercussion on the moral code?
(2) What about repercussion on the moral code? (p. 59)
- It is irrational to suggest that when a moral change occurs in society, social order will
disintegrate
- Societies survive changes in basic moral views (for example: homosexuality used to be
illegal. Now it is legal and socially acceptable)
- Peace, order, and good government: who has the authoritative power? Is it a criminal
thing?
o Pot is drugs: driving high can impact others
o Group sex: it is not indecent when it’s consensual, adults, male/female ratio
R. v. Malmo- Levine; R. v. Caine, [2003] 3 S.C.R. 571, 2003 SCC 74 (about PFJ)
Facts Malmo
 Malmo self-represented himself and is a marijuana activist
 He has a non-profit organization called the Harm Reduction Club
 He sees potential of harm associated with marijuana and seeks to reduce it
 Found 316g on Malmo and was charged with possession of cannabis for the
purpose of trafficking
Caine
 Sitting in a van smoking marijuana
 Officer stopped him from backing his van and Caine produced the joint
 It was 0.5g
Malmo-Levine challenges the constitutionality of the prohibition, focusing on using the

“harm principle” as his main argument and that it should be a principle for fundamental
justice for why the prohibition is not constitutionally valid.
Caine argues that Parliament is violating the principles of fundamental justice by using
imprisonment as a sentence for conduct that results in little to no harm to others
Issue Is the prohibition, including the availability of imprisonment for simple possession, not
valid legislation, either because it does not properly fall within Parliament’s legislative
competence, or because the prohibition, and in particular the availability of
imprisonment, violate the section 7 guarantees of the Charter?
Holding  Both appeals are dismissed
 It seems clear that the use of marijuana has less serious and permanent effects than
was once claimed, but its psychoactive and health effects can be harmful, and in the
case of members of vulnerable groups the harm may be serious and substantial
Analysis What is a principle of fundamental justice?
The principles of fundamental justice are specific legal principles that command

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"significant societal consensus" as "fundamental to the way in which the legal system
ought fairly to operate”
3 pieces to the test of what constitutes a fundamental principle of justice:
- Is it a legal principle? As opposed to a moral principle (find harm principle is
more concerned with morality)
- Is there social consensus?
o Societal consensus that it is fundamental to the operation of the legal
system
o This is a fundamental tenant of justice system, find that harm to others if
a precondition for criminal offences
- Is there sufficient precision? Here you have to quantify what is sufficient.
They find there wasn’t sufficient precision to harm principle to be sufficiently
applicable to all future cases.
BECAUSE HARM PRINCIPLE FAILED ALL 3 OF THE TESTS, IT IS NOT A

PRINCIPLE OF FUNDAMENTAL JUSTICE
MCLACHLIN C.J. AND GONTHIER, IACOBUCCI, MAJOR, BASTARACHE

AND BINNIE JJ—delivered by Gonthier and Binnie
HARM PRINCIPLE ARGUMENT
-Both Malmo and Caine contend that unless the state can establish that the use of
marijuana is harmful to others, the prohibition against simple possession cannot comply
with s. 7
- Malmo Levine: Rejects the argument that the harm principle is a
Principle of Fundamental Justice
- Harm to others is not a legal principle, but rather a state interest
- There’s no societal consensus
- Parliament can criminalize conduct that they believe is unmoral (it’s within their
competence)
- It’s not a manageable standard- which type of harm are we referring to? Is it
economic, physical and social?
- No one goes to jail for simple procession of marijuana
- Gross disproportionality: the harm the parliament sees to limit or mitigate by
criminalization (page 70)
- Social context: nobody raised the social context frame- the offence has been
disproportionally implied and the fact there is evidence to suggest that for
simple procession, the sentencing to different groups is not equal. A critical race
analysis was important here to see who has faced drug possession. Blacks are
more likely to be arrested for possession of marijuana.
-The state may sometimes be justified in criminalizing conduct that is either not
harmful (in the sense contemplated by the harm principle) or that causes harm only to
the accused. Examples: cannibalism, bestiality (p. 69)
-Canada continues to have paternalistic laws – laws geared towards criminalizing
behaviour that is harmful to oneself (ex. wearing seatbelts/helmets)
-Harm, as interpreted in jurisprudence, can take many forms: economic, physical and
social

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-The harm principle is not a manageable standard against which to measure deprivation
of life, liberty or security of the person
-Caine: the use of marijuana is a proper subject matter for the
exercise of criminal law power (Parliament has the authority to pass legislation
prohibiting simple possession of marijuana under its criminal law power)
DIVISION OF POWERS ARGUMENT

-For criminal law to be valid, it must have a valid criminal law purpose backed by a
prohibition and a penalty
-Marijuana is known to be harmful to at least some of its users, and Parliament's interest
in preventing that harm is sufficient to justify the marijuana law under Section 7.
Imprisonment is just one of the possible sentences and there is no minimum sentence
for these crimes; in fact, imprisonment is very seldom used as a sentence for possession
alone.
-Therefore, the use of marijuana is proper subject matter for the exercise of the criminal
law power (p. 67)
Ratio Harm is NOT a principle of fundamental justice and Malmo-Levine can’t use section 7
to challenge. Cannot use section 7 to assess wisdom of Parliament’s decision to
criminalize based on insufficient harm to warrant criminal label/sanction. Gross
disproportionality principle (section 7) (balancing harms) available but only in extreme
cases. It means accused person can’t challenge a criminal offence on the basis that there
is not sufficient harm.
Dissent Arbour J: A law that has the potential to convict a person whose conduct causes little
or no reasoned risk of harm to others offends the principles of fundamental justice and,
if imprisonment is available as a penalty, such a law then violate a person’s right to
liberty under s. 7 of the Charter
-Imprisonment can only be used to punish blameworthy conduct that is harmful to
others
R. v. Labaye, [2005] 3 S.C.R. 728, 2005 SCC 80 (not about PFJ but statutory interpretation)
Facts - Jean-Paul Labaye was charged with operating a “common bawdy-house,” a
violation under section 210(1) of the Criminal Code, for owning the club
l’Orage (the orgy) in which people who pay a membership and engage in group
sex, oral sex and masturbation. All of these activities were consensual and,
while members paid the club membership fees, the members did not pay each
other in exchange for sex
- At this time, common bawdy house was defined as a place kept or occupied for
the purpose of prostitution or the acts of indecency
Issue Are the acts committed in his establishment acts of “indecency” within the meaning of
the criminal law?
Sources Section 210(1) of CC: Acts of Indecency- keeping of a bawdy house
Analysis - Not about PFJ but about statutory interpretation about definition of indecency
and how harm falls into it so they’re using harm in a different way then Malmo-
Levine.
- Judge said we need to recognize charter values of equality, anatomy, liberty
when thinking about liberal law

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- Majority said we need to focus on harm; harm that’s subject to proof
MCLACHLIN C.J. AND MAJOR, BINNIE, DESCHAMPS, FISH, ABELLA

AND CHARRON—delivered by McLahlin
Indecent criminal conduct will be established where the Crown proves beyond a
reasonable doubt the following two requirements:
Objective 2 step test to determining if conduct is indecent (para 62):

1) Identify the nature of the harm- nature of conduct causes harm or risk of
harm to individuals or society; undermines or threatens to undermine a value
reflected in and formally endorsed in the Constitution or fundamental law
- Three Types of Harm
 Harm to those whose autonomy and liberty may be restricted by
being confronted with inappropriate conduct (ex. Parent has to take
a diff. route to work or their child’s school because they don’t want
their child to be exposed to a indecent poster)
 Harm to society by predisposing others to anti-social conduct (ex.
Sexualizing women)
 Physically or psychologically harming individuals involved in the
conduct (ex. People participating in group sex- issues of consent,
bodily harm)
2) What level/degree of harm is required to warrant the criminal sanction
- That the harm or risk of harm is of a degree that is incompatible with the proper
functioning of society
- Threshold is high
On the basis of the test, the court said:

- court said it took place in private club so it wasn’t about people’s interference
with autonomy or liberty,
- there was no evidence that anyone was pressured to have sex, paid to have sex
- there was no evidence of any harm to the individuals participating
- all members were there voluntarily, you had to become a member to get in and
so all the people who were there wanted to be there and consented to all the acts
that happened there
- there is no harm in the bawdy house existed, as everything was consensual, no
harm to society, secret code to get in the room, everyone knew what happened in
the houses so they weren’t physically and psychologically harmed.
Therefore in this case, the conduct (swinging) was not indecent as it failed the test.
Ratio THE LEGAL TEST FOR CRIMINAL INDECENCY (full test outlined on p. 82)
Indecent criminal conduct will be established where the Crown proves beyond a
reasonable doubt the following two requirements:
1. That, by its nature, the conduct at issue causes harm or presents a significant risk
of harm to individuals or society
2. That the harm or risk of harm is of a degree that is incompatible with the proper
functioning of society

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In order for conduct to be indecent it must be sufficiently harmful (objectively

speaking) to warrant criminal sanction
Dissent BASTARACHE AND LEBEL JJ
Public Morals is what is Moral
-The importance of this requirement profoundly alters the traditional concept of
tolerance by suggesting that the public will tolerate anything that is contrary to public
morals unless it can be established that an act will cause significant social disorder
They set out another approach:

Community’s tolerance should be assessed by two factors: the nature of the acts and
their context
In terms of context, the following factors should be considered:

- The private or public nature of the place
- The type of participants and composition of the audience
- The nature of the warning given regarding the acts
- The measures taken to limit access to the place
- The commercial nature of place and acts
- The purpose of the acts
- The conduct of the participants
- The harm suffered by the participants
Overbreadth
R v Heywood, SCC 1994 *offender in park*

Facts - Heywood had been convicted of sexual assault two years before this case. In
this case he was charged under s.179(1)(b) of the Code for loitering around a
public park (where children would be) while having a record of being a sex
offender. He was caught once and warned not to do it, and then caught again
and charged. After searching his pictures they found compromising images of
minors in public. Heywood was convicted at trial, but the conviction was
overturned by the Court of Appeal.
Issue - Is s. 179(1)(b) of the Code consistent with s.7 and 1 of the Charter?
- What is the definition of "loitering" pursuant to s. 179(1)(b)?
Sources S. 179(1)(b) of Criminal Code: loitering around in a public park
Section 7 of Charter: Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the principles of
fundamental justice.
Section 1 of Charter: The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable limits prescribed by

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law as can be demonstrably justified in a free and democratic society.

Decision - Appeal dismissed, conviction quashed.
Holding - "Loitering" does not need any special kind of mental aspect – it just means
"hanging around".
- The ways that a law limits one's liberty must be justifiable as being in line with
the principles of fundamental justice (s.1) and cannot limit freedoms more
than is necessary.
- A crime can be deemed to be unconstitutional for being either too vague or
too broad.
- Overbreadth means that the law is too generally sweeping and that it is
sometimes too arbitrary or disproportionate to its purpose.
Analysis - Cory, writing for the majority, accepts the dictionary definition of "loitering" as
essentially meaning "hanging around" and cite precedence of other cases using
this definition. He states that the section in question clearly violates s.7 of
the Charter as it restricts the defendant from being in many areas such as
parks and beaches for the rest of his life. The question then becomes whether
this is saved by s.1.
- He does not think that this violation is saved by s.1. The way the section is
structured limits offenders' freedom in ways that go beyond what is necessary
for justice. He gives four main reasons:
- its geographical limits are too far reaching (includes areas without children);
- the lifetime ban is unreasonable, and should be subject to review;
- it limits all sex offenders, when it should only limit those who abused children;
and
- it puts the prohibition in place without notifying the offender first.
- Therefore Cory dismisses the appeal and says that the section is
unconstitutional. He says that s.161 is a much better law for achieving the
same end as it takes many of the above things into consideration.
Dissent - Gonthier, in the dissent, argues that the definition of "loitering" in the section
includes the necessity of having malevolent purposes while "hanging around".
Therefore the violation of s.7 is saved by s.1 as protecting society from people
with malevolent purposes and a probability that they will commit another
crime is in line with the principles of fundamental justice.
- There is also a discussion of the relationship between vagueness and
overbreadth. A crime that is overly vague is unconstitutional, and one that is
overly broad is as well because it does more than is needed to protect justice.
With either definition of "loitering" used, this crime is not overly vague,
however the way that the majority approaches it makes its reach too broad,
while this problem does not exist in the minority's analysis because it only
limits those with malicious intentions involved with their loitering.
Doctrine of Vagueness
1. Fair notice to the citizen

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a. Formal aspect of notice – an acquaintance with the actual text of a statute

b. Ignorance of the law is no excuse
2. Limitation of Law Enforcement Discretion
a. A law must not be so devoid of precision in its context that a conviction will
automatically flow from the decision to prosecute – the crux of the concern for
limitation of enforcement discretion
b. Has to be clear
R v Nova Scotia Pharmaceutical Society, 1992 – SCC

Facts - Accused charged under Combines Investigation Act for conspiring to lessen
competition unduly (in sale of prescription drugs)
Issue - What does “void for vagueness” mean?
Holding - Rejected accused’s argument. Appeal dismissed.
Analysis - SCC affirmed the existence of a void for vagueness doctrine under the Charter
- Doctrine of vagueness is founded on the rule of law, particularly on the
principles of fair notice to citizens and limitation of enforcement discretion (pp
32-33)
A law will be found unconstitutionally vague if it so lacks in precision as not to give

sufficient guidance for legal debate
- Vagueness can be raised under s. 7 of the Charter, since it is a principle of fundamental

justice that laws may not be too vague
- Provisions of the statute if they’re going to engage in life, liberty of a person cannot be
vague
- Can also be raised that under s. 1 of the Charter in limine (at the beginning), on the basis
that an enactment is so vague as not to satisfy the requirement that a limitation on
Charter rights to be “prescribed by law”
Canadian Foundation for Children, Youth and the Law v Canada (Att. Gen), SCC 2004
Facts The Canadian Foundation for Children, Youth and the Law brought an action stating
that s. 43 of the Criminal Code violates the rights that children have under s. 15 of the
Charter. This section permits parents and teachers to use corrective force with children
that is “reasonable under the circumstances” and not be charged with assault.
Issue Is the statutory defence found in section 43 of the Criminal Code, which authorizes the
use of force “by way of correction toward a pupil or children if the force does not
exceed what is reasonable under the circumstances”, void for vagueness or
overbreadth?
Sources - S 43 of Criminal Code: Correction of child by force. Every schoolteacher, parent
or person standing in the place of a parent us justified in using force by way of
correction toward a pupil or child, as the case may be, who is under his care, if
the force does not exceed what is reasonable under the circumstances
- S 15 of Charter: that every individual in Canada – regardless of race, religion,

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national or ethnic origin, colour, sex, age or physical or mental disability – is to

be treated with the same respect, dignity and consideration.
- R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 “a law is
unconditionally vague if it, “does not provide an adequate basis for legal debate’
and ‘analysis’; ‘does not sufficiently delineate any area of risk’; or ‘is not
intelligible’ (para 15)
- International obligations “physical correction that either harms or degrades a
child is unreasonable” (para 31)
- Social consensus evidence
Rule A vague law prevents the citizen from realizing when he/she is entering an area of risk
for criminal sanction and makes it difficult for law enforcement officers like (judges and
police) to determine whether a crime has been committed
Holding McLachlin J provides the limitations for the defence
 Not vague
 Supreme Court of Canada agreed
 No head and face hits, no weapons, no teenagers
 Ages 3-12
 Took away a teacher’s right to use s.43 as a defense (take them physically out of
the classroom is alright, in compliance situations)
 Sets real boundaries
Arbour J (dissent)
 Appeal dismissed
 Violates the constitutional rights of children to safety and security
 The force must be minimal and insignificant
 “Reasonable under the circumstances” violates children’s rights
 What the constitution requires
 Linked to public policy issues
Binnie J
 Negative impact of allowing this legislation to remain should be dealt with in s. 1
 Clearly violates s. 15
 Take out “teachers” and “pupils” but keep parents
The remaining dissenting justices find that none of s.43 can be saved by s.1. They
essentially agree with the majority about three of the contextual factors, but argue that
s.43 does not correspond with the actual needs of the children. They state that allowing
such treatment demeans children and treats them as property rather than persons.
They state that although there is a rational connection between the purpose of this
section and the effect, this does not effectively minimally impair the rights of the
children. Section 43 could have been stated in much narrower terms, and then it would
have been much more appropriate.
Analysis VAGUENESS
- A law is unconstitutionally vague if it does not provide an adequate basis for legal

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debate and analysis, does not sufficiently delineate any area of risk or is not intelligible
– the law must offer a grasp to the judiciary (Nova Scotia Pharm)
-A law must set intelligible standard for both the citizens it governs and the officials who
must enforce it
- Vagueness prevents citizens from realizing when they are entering an area of risk for
criminal sanction and hard to enforce/determine a crime was committed
- Look at the words and court decisions interpreting those words
o What is considered reasonable in case of child discipline
McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and LeBel—delivered by

McLachlin
-rejects the claim that the law is vague and overbroad on grounds that the law
"delineates a risk zone for criminal sanction". She examines the meaning of "reasonable
under the circumstances" stating that it includes only "minor corrective force of a
transitory and trifling nature", but it does not include "corporal punishment of children
under two or teenagers", or "degrading, inhuman or harmful conduct" such as
"discipline by the use of objects", "blows or slaps to the head" or acts of anger. The test
is purely objective, McLachlin claims.
McLachlin J provides the limitations for the defence:
-Determining what is reasonable in case of child discipline is assisted by social and
expert evidence (para 36)
 Children aged 2 and under cannot be hit (para 37)
 Corporal punishment of teens is harmful because it can induce aggressive or
anti-social behaviour so children aged 13 and over cannot be punished (para 37)
 Corporal punishment involving slaps, blows to the head, using objects such as
rules or belts is harmful and not reasonable (para 37)
 Corporal punishment by teachers is unreasonable (para 38)
 Therefore, the parameter is limited to the ages of 3-12
Dissent Binnie J., dissenting in part, holds that the negative impact of allowing this legislation to
remain should be dealt with in s.1, as it clearly violated s.15. He says that s.1 should
deal with balancing the needs of the children and the other parties to see if this
provision is justified. He finds that it cannot be justified for "teachers" and "pupils", and
therefore that those words should be removed from s.43. However, he finds that the
use of force by parents can be justified, and therefore this part of the legislation should
remain.
The remaining dissenting justices find that none of s.43 can be saved by s.1. They
essentially agree with the majority about three of the contextual factors, but argue that
s.43 does not correspond with the actual needs of the children. They state that allowing
such treatment demeans children and treats them as property rather than persons.
They state that although there is a rational connection between the purpose of this
section and the effect, this does not effectively minimally impair the rights of the
children. Section 43 could have been stated in much narrower terms, and then it would
have been much more appropriate.

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Ratio - Something can be saved from being termed “discrimination” if only one of the
contextual factors – the correspondence of the law and the actual needs of the
claimants – is not satisfied
- “A vague law prevents the citizen from realizing when he or she is entering an
area of risk for criminal sanction. It similarly makes it difficult for law
enforcement officers and judges to determine whether a crime has been
committed”
- In sum: s 43 can only be raised as a defense to simple assault where the force
was for a corrective purpose, used on a child older than two but not a teenage,
does not involve objects or blows to the head, and should not relate to the
‘gravity’ of the conduct (arbour dissent)
- The court held that S. 43 was not unconstitutionally vague or overbroad
Policy - The concern with vague laws is that it will leave the “basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory application” Grayned
v city of Rockford
- Justice Arbour expresses concern that majority improperly enlarged criminal
responsibility but limiting this defense
- “Absent a finding of a constitutional violation by parliament, the reading down
of a statutory defense as is done by the child justice amounts to, in my
respectful opinion, an abandonment by the courts of their proper role in the
criminal process” (para 138)
Doctrine of Strict Construction

The Criminal Code is interpreted in a strict manner designed to give the accused the benefit of
the doubt concerning any textual ambiguity (p. 43).
R v Pare (1987) SCC

Facts - Accused (Marc-Andre Pare, 17 years) indecently assaulted and murdered a 7 year
old boy (Steeve Duranleau)
- After intercourse Duranleau said he was going to tell his mother, Pare believed
him, strangled him with his hands, hit him on the head with an oil filter several
times and strangled him with a shoe lace
Issue - Did Pare murder the child “while committing” the indecent assault?
- What is the meaning of “while committing” under s. 231(5)?
Sources - Section 231(5)- murder is first degree murder when death is caused by a person
while the person is committing indecent assault (or some other crime)
- Literal/acontextual meaning of “while committing”-> murder and indecent
assault must be simultaneous
 Supported by R v Kjeldsen 1980 ABCA and R v Sargent 1983 SKCA
(murder happen subsequent to sexual assault)
- R v Stevens 1984- court went beyond narrow interpretation of “while
committing” and took a more holistic approach– where death and the indecent act

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form one continuous sequence of events/single transaction, death may be

considered first degree= “while committing” does not require exact coincidence
of murder and underlying offence
Rules - Doctrine of strict construction requires courts to adopt interpretation most
favorable to the accused (i.e. that “while committing” requires the unlawful act
and the murder be simultaneous)
- Literal meaning of “while committing” is not assistive and would lead to absurd
results
- The phrase must be read in context of the scheme and purpose of legislation
Holding Trial Court: Pare charged with first degree
Admitted all of the facts
Jury thought the boy died during the assault
Court of Appeals: accused appeal was dismissed (court changed it to second degree
instead of first degree)
Assault was over, killing was after so that’s second degree
SCC: allowed the appeal and restored the conviction of first degree murder, found
that under the definition of s.214(5) “while committing” meant murdering the victim
right after committing indecent assault because it was all part of a single transaction – the
murder was also temporal and casually connected to the underlying offence
Analysis Wilson J
 “Concurrency” is not strictly defined as “at the same time”
 Murder and underlying offence must be temporally and causally connected to show
acts were part of the same transaction
 How do you determine the start and end of the assault? Are a few moments away
from the child enough to warrant a less serious punishment?
 Continued contact part of the assault? Given the accused pulled his pants up but kept
his hands on the kids chest
 Involves deliberation and just because he waited 2 minutes does not mean it was not
planned/simultaneous
Court adopts this approach
Single transaction approach: where the act causing death and acts constituting rape,
attempted rape, indecent assault, or attempt to commit indecent assault all form part of
one continuous sequence of events forming a single transaction– rejected simultaneous
approach
Charged with first-degree murder; planned and deliberate, unless there are other offences
as well (ie. In this case, rape)- page 48
Section 214(5) of “while committing”
 Scheme and meaning of the legislation
 What is the reason for making a sentence first degree if offences are committed
together?
Ratio Doctrine of Strict Construction must not contradict a purposive interpretation that
considers the scheme and purpose of the legislation. Interpretations cannot lead to
arbitrary or irrational outcomes
Literal meaning of “while committing” is not of use-> must be read in context of scheme

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and purpose of legislation
First Degree Murder: A homicide that is both planned and deliberate.
Second Degree Murder: Generally, a deliberate killing that occurs without planning and does
not fall under any of the categories of first-degree murder. If you do not plan and you do not
deliberate about it, but you still intend to kill someone.
Manslaughter: A homicide committed without intent, although there may have been an
intention to cause harm (below first and second-degree murder). If somebody is committing an
illegal act and causes the death of an individual, then they are found guilty of manslaughter.
Though the person died, there was no intention to cause death.
Sex Work
Canada v Bedford, SCC 2013

Facts - The appellants, Terri Jean Bedford, Amy Lebovitch, and Valerie Scott, all
former or current sex workers, challenged 3 sections in the Criminal Code
regulating sex work.
- Their position: laws are unconstitutional as they violate their rights under
Section 7 of the Charter to ‘life, liberty and security of the person’
- Stare decisis: to stand by and adhere to decisions already settle. The role of
judges is to find the law and find the relevant precedents and apply it, not to
make the law (page 100)
 A decision of a higher court- binding on lower court (vertical stare
decisis)
 Previous decisions of the same court (Horizontal Stare Decisis)
Issue The three impugned provisions criminalize various activities related to prostitution.
However, prostitution itself is not illegal. The applicants allege that all three provisions
infringe s. 7 of the Charter. s. 213(1)(c) infringes s. 2(b) of Charter, and that none of the
provisions are saved under s. 1
*Section 1 best for all Canadians even though they infringe Charter rights
Sources/Law Section 210 of CC
- Offence to be an inmate of a bawdy-house, to be found in a bawdy-house
without lawful excuse, or to be an owner, landlord, lessor, tenant, or occupier of
a place who knowingly permits it to be used as a bawdy-house
Section 212(1)(j) of CC
- Offence to live on the avails of another’s prostitution
Section 213(1)(c) of CC
- Offence to either stop or attempt to stop, or communicate or attempt to
communicate with, someone in a public place for the purpose of engaging in
prostitution or hiring a prostitute

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Section 7 of Charter: Life, liberty, security of the person except in accordance with
principles of fundamental justice. In this they wanted it framed as security of person,
not the other two provisions. They wanted the focus to be on the impact on the lives,
safety of sex workers and not on punishment.
Holding  All three provisions are found to infringe s. 7 of the Charter

o Appeals dismissed and cross-appeal allowed
 Criminal Code regulation of sex work is unconstitutional
o Section 210
o Section 212(l)(j)
o Section 213(l)(c)
 They are not saved under s. 1 (only in very serious national conditions/concerns can
you bring in s.1 to save s. 7 infringement)
o Violate the Charter
 Does not mean that Parliament is precluded from imposing limits on where and
how may be conducted
 Up to Parliament to devise a new approach
 Parliament responds- Bill C-36 (in force November 6, 2014)
 Bill C-36: the Protection of Communities and Exploited Person Act, with the
following features:
o Prostitution is not excluded from the scope of the common bawdy-
house
o The new legislation targets those purchasing sexual services, it is now
an offence to obtain/communicate sexual services for consideration.
o The crime of living on the avails of prostitution is repealed in favour of
new provisions:
Analysis SECTION 210 – Keeping a common bawdy house (p. 101)
The practical effect of s.210 is to confine lawful prostitution to two categories: street
prostitution and out-calls
1. The prohibition prevents prostitutes from working in a fixed indoor location which
would be safer than working on the streets or meeting clients in diff locations
2. It interferes with provision of health checks and preventative health measures
3. The prohibition prevents resort to safe houses, to which prostitutes working on the
street can take clients
SECTION 212(1)(j) – Living on the Avails of Prostitution (p. 102)

Makes it a crime for anyone to supply a service to a prostitute
- In effect, it prevents prostitutes from hiring bodyguards, drivers and
receptionists
- By denying prostitutes access to these security-enhancing safeguards, the law
prevents them from taking steps to reduce risks they face
SECTION 213(1)(c) – Communicating in a Public Place (p. 103)

- This section prohibits communicating or attempting to communicate for the

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purpose of engaging in prostitution or obtaining the sexual services of a

prostitute in a public place or a place open to public view
- This definition extends to prohibiting verbal communication by stopping or
attempting to stop any person for those purposes
- Face-to-face communication is an “essential tool” in enhancing street
prostitute’s safety
- Such communication allows prostitutes to screen prospective clients for
intoxication or propensity to violence, which can reduce risks they face
- This law has the effect of displacing prostitutes from familiar areas, where they
may be supported by friends and regular customers to more isolated areas,
thereby making them more vulnerable
PRINCIPLES OF FUNDAMENTAL JUSTICE

The remaining step in the s. 7 analyses is to determine whether this deprivation is in
accordance with PFJ. If so, s. 7 is not breached
- Arbitrariness: describes a situation where there is no connection between the
effect and the object of the law (no rational connection)
- Overbreadth: the law goes too far and interferes with some conduct that bears
no connection to its objective. Does the law capture conduct that it doesn’t
mean to regulate? Boundaries too large and captures conduct parliament doesn’t
intend to be criminal
- Gross disproportionality: effects are grossly disproportionate to the objective
(ex of objective: public health and safety) Targets second fundamental evil:
laws are so disproportionate from its purpose (ex: criminal law that says
everybody has to keep streets clean and gives life sentence to someone who
spits on the sidewalk)
“All three principles compare the rights infringement caused by the law with the
objective of the law, not with the law’s effectiveness. They don’t look to how well the
law achieves its object, or how much of the population the law benefits. None of the
principles measure the percentage of people negatively affected.
The question under s.7 if whether anyone’s life, liberty or security of the person has
been denied by a law with a provision that is inherently bad; a grossly disproportionate,
overbroad or arbitrary effect on one person is sufficient to establish a breach of s.7.” (p.
107)
DO THE IMPUGNED LAWS RESPECT THE PRINCIPLES OF

FUNDAMENTAL JUSTICE?
SECTION 210 – BAWDY HOUSES

Object: to combat neighbourhood disruption or disorder and to safeguard public health
and safety
 Moving to a bawdy-house would improve the prostitutes’ safety by providing
the ‘safety benefits of proximity to others, familiarity with surrounding, security
staff, closed-circuit television and other such monitoring that a permanent
indoor location can facilitate (p. 108)
Compliance: negative impact on security of person is grossly disproportionate to

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objective. Parliament has the power to regulate against nuisances, but not at the cost of
the health, safety and lives of prostitutes. Nuisance is not so big that it should not be
criminalized and so it’s grossly disproportionate.
SECTION 212(1)(j) – LIVING ON THE AVAILS

Object: to target pimps and the parasitic, exploitative conduct in which they engage
Compliance: overbroad because it captures a number of non-exploitative
relationships, which are not connected to law’s purpose (ex: employees, family, close
personal relationships). Parliament is not intending to criminalize children who live on
the avails of their parent’s prostitution.
 While this provision has been refined to exclude doctors or individuals who live
and maintain legitimate domestic relationships with prostitutes, the court looks
at whether the law nevertheless goes too far
 The law punishes everyone who lives on the avails of prostitution without
distinguishing those who exploit prostitutes (for example, controlling and
abusive pimps) and those who could increase the safety and security of
prostitutes (for example, legitimate drivers, managers or bodyguards)
SECTION 213(1)(c) – COMMUNICATION

Object: the provision is meant to address solicitation in public places and, to that end,
seeks to eradicate the various forms of social nuisance arising for the public display of
the sale of sex
Compliance: harm imposed is grossly disproportionate to the provision’s object of
removing the nuisance of prostitution from the streets. This is based on evidence that
ability to screen clients was an essential tool to avoiding violent or drunk clients.
Section 7 Test
1. Has the applicant established that the law in question imposes limits on the life,
liberty or security of the person?
 Has section 7 been engaged?
2. If so, are the limits on the life, liberty, or security of the person in accordance
with the principles of fundamental justice (law must not be vague, arbitrary,
grossly disproportional)?
 Are the limits on section 7 reasonable and valid?
- If the limits are in accordance with the principles of fundamental justice- the law
validly limits your s. 7 rights (s. 7 infringement is allowed)
- If the limits are not in accordance with PFJs, there is a section 7 violation.
Hate Speech
- Hatred is not defined in the Criminal Code and so the courts have to use statutory
interpretation

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Section 1 Test (Oakes)

Oakes test: an analysis of the limitations clause (section 1) of the Charter that allows
reasonable limitations on rights and freedoms through legislation if it can be “demonstrably
justified in a free and democratic society”
R v Oakes (1986 – SCC)

Facts Oakes was found in possession of eight 1g viles of cannabis in form of hashish oil; s.8 of
Narcotic Control Act says that one found in possession of narcotics is presumed to be in
possession for the purpose of trafficking unless accused can establish contrary; reverse
onus
Issue Is s. 8 of the Act unconstitutional because it is in violation of s. 11(d) of Charter?
Sources S.8 of Narcotic Control Act says that one found in possession of narcotics is presumed
to be in possession for the purpose of trafficking unless accused can establish contrary
S. 11(d) of Charter: Any person charged with an offence has the right to be presumed
innocent until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal
S. 1 of the Charter: The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.
Holding Yes; the Court was unanimous in holding that the shift in onus violated both Oakes’s
section 11(d) rights and indirectly his s.7 rights, and could not be justified under section
1 of the Charter. This was because there was no rational connection between basic
possession and the presumption of trafficking, and therefore the shift in onus is not
related to the previous challenge to section 11 (d) of the Charter
Analysis Dickson CJ
 Charged with unlawful possession of a narcotic for the purpose of trafficking
 Section 11(d) is the presumption of innocence as part of the supreme law of
Canada
 Section 1 has 2 functions: 1. Constitutionally guarantees rights and freedoms set
out in the provisions which follow, 2. State explicitly the exclusive justifactory
criteria
 Lack of a rational connection between the proved fact of possession and the
presumed fact of an intention to traffic
 Section 8 does not satisfy this first component of proportionality, therefore
unnecessary to consider the other two components
Ratio If accused bears burden of disproving on balance of probabilities an essential element
of an offence it would be possible for a conviction to occur despite the existence of a
reasonable doubt. The presumption of innocence lies at the very heart of the criminal
law and is protected expressly by s. 11(d) of the Charter and by the s. 7 right to life,
liberty and security of the person.
This presumption has enjoyed longstanding recognition at common law.
The right to be presumed innocent until proven guilty requires, at a minimum, that:

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(1) An individual be proven guilty beyond a reasonable doubt;

(2) The State must bear the burden of proof; and
(3) Criminal prosecutions must be carried out in accordance with lawful procedures and
fairness.
Ratio: Oakes Test; Onus on Crown to pass the Oakes test.
TEST: (section 1 analysis)
1. The presumption of innocence is infringed whenever the accused is liable to be
convicted despite the existence of a reasonable doubt.
2. If by the provision of a statutory presumption, an accused is required to establish,
that is to say to prove or disprove, on a balance of probabilities either an element or
an offence or an excuse, then it contravenes s.11(d). Such a provision would permit
a conviction in spite of a reasonable doubt.
3. It must of course be remembered that statutory presumptions which infringe
s.11(d) may still be justified pursuant to s.1 of the Charter.
R v Keegstra (1990 – SCC)- Promoting Hatred against Jews
Facts - AB high school teacher, charged under s. 319(2) of the Criminal Code with willfully
promoting hatred against an identifiable group by communicating anti-semitic (anti-
Jewish) statements to his students
- 319(2): makes it an offence to communicate, except in private conversation,
statements that willfully promote hatred against an “identifiable group”
Trial judge: convicted
COA: Charter arguments accepted, ss. 319(2) and (3)(a) infringed ss. 2(b) and 11(d) of the
Charter and the infringements were not justified under s. 1 of the Charter.
Section 319(2)- criminalization wilful promotion of hatred- a reasonable limit on the right to
free expression under section 2(b) of the Charter?
Section 319(3)(a)- reverse onus on accused to prove truth as a Defence- a reasonable limit
on the presumption of innocence under section 11(d) of the Charter?
*reverse onus asks the accused to prove his innocence
Issue Constitutional validity of s. 319(2) of the CC (prohibits willful promotion of hatred publicly);
does this section infringe the guarantee of freedom of expression found in s. 2b of the
Charter?
Is the presumption of innocence protected in s. 11(d) of the Charter breached by reason of s.
319(3)(a) of the Code?
1. Is s. 319(2) of the CC an infringement of freedom of expression (s. 2(b))?

2. If so, can it be upheld under s.1 of the Charter as reasonable limit prescribed by law and
demonstrably justified in a free and democratic society?
Sources 319(2) of Criminal Code: makes it an offence to communicate, except in private conversation,
statements that willfully promote hatred against an “identifiable group”
319(3)(a) of Criminal Code: No person shall be convicted of an offence under subsection (2) if
he establishes that the statements communicated were true.

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s. 2(b) of Charter: Everyone has the freedom of thought, belief, opinion and expression,
including freedom of the press and other media of communication.
s. 1 of the Charter: The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
S. 11(d) of Charter: Any person charged with an offence has the right to be presumed
innocent until proven guilty according to law in a fair and public hearing by an independent
and impartial tribunal
Holding 1. Yes
2. Yes
Appeal allowed, AB COA decision reversed.
Analysis 2 step analysis from Irwin Toy for Issue#1
1) Determining whether the expression conveyed is within the realm of protection of Section
2(b) of the Charter.
- requires a determination of whether the allegation of infringement of freedom of
expression falls within the ambit of Section 2(b) of the Charter
- majority concluded that expression is protected when it attempts to convey a
meaning.
- Dickson further asserted that the meaning or message of the expression was
irrelevant even if, as in this case, it publicly promoted hate.
2) Determining if the purpose of the government action or legislation is to restrict expression.

- Dickson concluded that Section 319(2) sought to prevent a particular expression and
thus satisfied the second part of the analysis.
Issue #2: when a Charter violation is found, we must ask ourselves if it is a reasonable
limitation under section 1 of Charter
OAKES TEST: (section 1 analysis)- burden to prove is on Crown
TEST:
1. Is the legislative goal pressing and substantial? i.e., is the objective sufficiently
important to justify limiting a Charter right?
2. Is there proportionality between the objective and the means used to achieve it?
The second branch of the test has three elements:
a. "Rational Connection": the limit must be rationally connected to the objective. It must
not be arbitrary, unfair or based on irrational considerations;
b. "Minimal Impairment": the limit must impair the right or freedom no more than is
reasonably necessary to accomplish the objective. The government will be required to
show that there are no less rights-impairing means of achieving the objective “in a

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real and substantial manner”

c. "Final Balancing": “whether there is proportionality between the effects of the
measure that limits the right and the law's objective” [emphasis added] in terms of
the greater public good
Answers:
- Yes, it’s reasonable limit of limiting someone’ free speech because it’s spreading hate
and we don’t want that in a society
Majority judgment answered affirmatively.

- In this regard, Dickson adopted the approach utilized in R. v. Oakes, where first it had
to be established that the objective of the legislation was of a pressing and substantial
nature. Dickson determined that the objective of the legislation was indeed pressing
and substantial because expression promoting hatred to identifiable groups unduly
inhibits multiculturalism in Canada.
- Dickson says there has to be willfully (highest mental element) promotion of hatred
(recklessness, negligence won’t suffice) in order for it to be criminalized
o R. v. Buzzanga looked at for willful piece – you have to have conscious purpose
of bringing about hatred or if you foresee that your conduct will lead to
promotion of hatred, then you’re also guilty
- Majority also looked at the defenses to the charge- including good faith, statement
communicated for truth, subject of public interest, the discussion of which are public
interest (parliament has place limitations on hatred in the criminal code)
- Consent of the attorney general is also required
- Court says proof of actual hatred ignores the psychological trauma that could me
caused, parliament can criminalize conduct for reasonable apprehension of bias
- Majority upholds 319(2)
Dickson C.J (majority)

“I consequently find that the first part of the test under s. 1 of the Charter is easily satisfied
and that a powerfully convincing legislative objective exists such as to justify some limit on
freedom of expression”
“I have found the narrowly drawn parameters of s. 319(2) to be justifiable under s. 1”

Dissent - Justice McLachlin’s dissenting opinion did agree with the majority judgment that
freedom of expression had been infringed pursuant to Section 2(b) of the Charter.
- However, it did not agree that the limitation to freedom of expression was justifiable
and reasonable under Section 1 of the Charter.
- McLachlin asserted that the criminal aspect of the limitation to freedom of speech
that Section 319(2) imposes could produce a chilling effect (the threat of
criminalization will deter the free exchange of idea), primarily because it could deter
legitimate expression and cause uncertainty as to whether a particular expression
could be prosecuted. T
- the dissenting opinion also rejected the notion that criminal prosecutions can reduce

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racism and hate propaganda.

- Finally, McLachlin submitted that the limitations established in Section 319(2) suffer
from vagueness and broadness
R v Zundel, SCC, 1992- spreading false news

Facts - Ernst Zundel published a 32-page pamphlet entitled Did Six Million Really Die?
- The publication contended that there is not sufficient evidence that can confirm six
million Jewish people died before and during World War II.
- The pamphlet also alleged that the Holocaust is a myth and a conspiracy created by
the Jewish people.
- Zundel was convicted for spreading false news contrary to Section 181 of the
Canadian Criminal Code, which he then appealed to the Supreme Court of Canada.
- He challenged the constitutionality of Section 181 because it was a restriction of his
right to freedom of expression pursuant to Section 2(b) of the Charter.
Sources S 181 of Criminal Code: "[e]very one who willfully publishes a statement, tale or news that he
knows is false and causes or is likely to cause injury or mischief to a public interest is guilty of
an indictable offence and liable to imprisonment for a term not exceeding two years".
s. 2(b) of Charter: Everyone has the freedom of thought, belief, opinion and expression,
including freedom of the press and other media of communication.
s. 1 of the Charter: The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
Issue 1) whether Section 181 of the Criminal Code violated Section 2(b) of the Charter
2) If so, whether the infringements were justifiable pursuant to Section 1 of the Charter
Holding Appeal allowed, section 181 is unconstitutional. Conviction set aside.
Analysis Two-Step Analysis from Irwin Toy case for Issue 1:
1) Determining whether the expression conveyed is within the realm of protection of Section
2(b) of the Charter.
- McLachlin asserted that the Court in various occasions had recognized the broad
domain of expression protected under Section 2(b) of the Charter and that all
expression that conveys or attempts to convey a meaning is protected by the
provision.
- However, it will not protect expression that is conveyed through violent form.
- McLachlin submitted that even lies and false statements are protected as expression
under Section 2(b) of the Charter.
- The majority judgment also determined that the effect of Section 181 was to restrict
freedom of expression.
2) Determining if the purpose of the government action or legislation is to restrict expression.
- The majority judgment asserted that Section 181 suffered from vagueness and was
- The majority judgment also determined that the effect of Section 181 was to restrict
freedom of expression.

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Issue #2:
OAKES TEST: (section 1 analysis)- burden to prove is on Crown
TEST:
1. Is the legislative goal pressing and substantial? i.e., is the objective sufficiently
important to justify limiting a Charter right?
2. Is there proportionality between the objective and the means used to achieve it?
The second branch of the test has three elements:
a. "Rational Connection": the limit must be rationally connected to the objective. It

must not be arbitrary, unfair or based on irrational considerations;
b. "Minimal Impairment": the limit must impair the right or freedom no more than is
reasonably necessary to accomplish the objective. The government will be required
to show that there are no less rights-impairing means of achieving the objective “in
a real and substantial manner”
c. "Final Balancing": “whether there is proportionality between the effects of the
measure that limits the right and the law's objective” [emphasis added] in terms of
the greater public good
Answers:
- Furthermore, the majority judgment turned to analyze if the restriction to freedom of
expression in Section 181 of the Criminal Code was justifiable under Section 1 of the
Charter.
- The majority determined that it was not a justifiable limitation pursuant to Section 1
of the Charter and had failed the test established in R. v. Oakes.
- Even though the majority judgment found that Section 181 had no pressing and
substantial objective, the Court still undertook the analysis of proportionality.
- In this regard, McLachlin first examined the legislative objective of Section 181 and
determined that there was no pressing and substantial objective attached to it. She
rejected the notion that Section 181 had shifted its purpose to become a provision for
the preservation of social harmony.
Zombie Provision (struck down but remained on books for decades)
- The Zundel case was treated as a zombie provision
Parliament responds: Bill C-39 (March 8, 2017) incorporated by Bill C-75 (March 29, 2018)-
removes zombie provisions
Dissent  The dissenting opinion agreed that Section 2(b) of the Charter had been infringed, but
that under Section 1 it was a justifiable and reasonable limitation on freedom of
expression.
 The dissent identified that the objective of Section 181 was to prevent the willful
publication of injurious lies.

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 Moreover, the objective promoted and protected social, racial, and religious
harmony.
 The dissent alluded to international human rights instruments that encouraged its
signatories to enact legislation prohibiting discrimination and incitement of
discrimination.
 They also concluded that Section 181 had a minimum impairment to freedom of
expression because the Crown had to prove that the publisher knew the falsehood of
the statements and that the expression would cause injury to the public interest.
 Finally, they submitted that the Court was bound to follow the precedent of R. v.
Keegstra in order to prevent discriminatory expression that could harm society and
multiculturalism in Canada.
Race in the Criminal System
R v Richardson, 1903
Facts - Oliver Richardson (White) has been charged with murder for killing his neighbor
Edmund Matthews (Black)
- The two neighbors had an ongoing land dispute
- This case was the first time in Ontario that a white man was tried for murdering a
Black man
- Slavery was abolished in 1833 and Blacks gained the same formal legal status as other
Canadians, including full legal equality and rights of citizenship
- Canadians feel morally superior to their American counterparts in regards to race and
justice
- Although the Canadian justice system appeared to be “raceless” as they had put a
white man on trial for murdering a black man, racism was nevertheless pervasive
because it was inherent in the underlying systems and structures of the legal system
- The 2 parties in this case were in Colchester, which had the third-largest Black
population in Canada West
- One of Matthews farm animal went onto Richardson’s field, and following some
fighting, Richardson drew a revolver and shot Matthews four times
- In general, Richardson had a litigious (fighting) nature and Matthews was calm and
collected
- Richardson was charged with “shooting and wounding with intent to kill:
Issue - Had Richardson acted in self-defense when he shot his Black neighbor Richardson,
with whom he had an ongoing dispute?
Holding o No; Richardson was found guilty of manslaughter and sentenced to 15 years in
prison
Analysis - Throughout the trial, racism stereotypes were used even though Canadian courts
claim to be raceless
- In Richardson’s defence, his lawyer said that over the years the two has constantly
quarrelled, trying to reinforce self-defense for his client
- Richardson’s lawyer also said that the time and place of the shooting was not ideal for

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a premeditated attack, trying to prove manslaughter instead of murder

- Those in the Black community were disappointed by the verdict, and felt that had
Matthews been white, the verdict would have been murder, not manslaughter
- A similar case a year later, R v Slaughter, in which a black man had hit a white man on
the head with a pool cue for calling him a “nigger” was found guilty of murder and not
manslaughter even though the weapon he used was merely what was on hand
Ratio - R v Richardson does not demonstrate that the Canadian Justice System was “raceless”
but that Canadians built a sense of identity based on idealized ideological notions of
justice and equality that could be contrasted against American vigilantism
Wrongful Convictions
R v. Marshall (1971 – NS)- wrongful conviction of Indigenous man for murder

Facts - Donald Marshall Jr. (Mi’kmaq/ Indigenous man) was wrongfully convicted of
murder
- Sentenced to life imprisonment for murdering Sandy Seale in 1971
- Both Donald and sandy were 17 at the time
- Late at night, out for a walk, ran into 2 older boys, scuffle broke out and Seale
fell, mortally wounded by a knife blow from Roy Esary
- Ebsary lied to police about his role in the incident, and never admitted to
stabbing Seale
- Marshall spent 11 years in prison before being acquitted
- Witness came forward to say someone else stabbed Seale
- The judge in the overturning of Marshall’s conviction, placed some blame on him
calling him “the author of his own misfortune”
- Ray Ebsary in the third trial was convicted of manslaughter and sentenced to 3
years (manslaughter is lesser version of murder)
 Sentence reduced to 1 year upon appeal
- Royal Commission looks into wrongful convictions
Trial judge erred in law by: not adequately instructing the jury on the defence evidence
and prejudicial opinions; misdirected jury on the meaning of reasonable doubt;
evidence of Pratico and Chant; permitted prosecuting officer to cross-examine witness
before ruling that he was adverse; instructed the jury that they did not have to consider
the question of manslaughter
Issue Was Marshall wrongfully convicted?
Sources s. 696 of Criminal Code: when someone believes they’re been wrongfully convicted and
have to appeal to the Minister of Justice and meet a high threshold and appeal process
has to be exhausted. You have to be able to point to fresh evidence that undermined
the conviction (Jimmy McNeal in this case)
Holding Appeal allowed, quashed conviction, verdict of acquittal be entered
Analysis  Marshall because he was Indigenous was convicted for murder and sentenced to life
whereas when Ray was convicted, it was only for manslaughter and got reduced to
1 year

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McKinnon CJNS
 Marshall convicted of murder by judge and jury 1971
 Appealed and lost in 1972
 Same appellate court reversed his conviction in 1983 when Marshall applied
under the procedure then known as applying for “mercy of the Crown”
- Marshall did not aid himself because by hiding the initial robbery intentions
from police, he was unable to tell authorities that the intended victim had
stabbed Seale.
Royal Commission looks into factors of:

1. Police – came to a quick conclusion (saw Marshall as a trouble maker and
racism)
2. Trial Process – jury
3. Crown – ignored conflicting evidence of witnesses and did not disclose to the
defence attorney
4. Defence – did not interview any witnesses, did not ask for disclosure from
Crown, racism towards Indians
5. Trial judge – incorrect rulings on evidence
6. 1972 appeal – COA did not comment on the serious issues which were readily
apparent on a reading of the trial transcript
7. Correctional System – gave him bail after 11 years of incarceration; did not get
institutional assistance he would have been entitled to if he was guilty
8. 1983 – Marshall had to prove his own innocence; CoA failed to identify the
perjured testimony and its source and the non-disclosure by the Crown
9. Visible Minorities – racism in the system is not okay, but it is so prominent in
every system
- Donald received a lifetime pension and 200k from the government in this case
- Donald was also wrongfully convicted another time when he caught eels out of
season
What protections/safeguards do we have in our system aimed at protecting wrongful

convictions? And how did these system protections fail?
1) Reliable police investigation
 We expect police to reliably investigate all evidence in relation to the
criminal event in question
 There’s a tort law for civil negligence
 In this, the police had “tunnel vision” in which the police has reason to
believe that somebody has committed a crime and the investigation
becomes one of trying to prove that hypothesis and the tunnel vision is
where they become so focused and convinced that they’ve got the right
vision and discount or devalue any evidence that disproves their hypothesis
2) Ethical obligations on Crown- “Minister of Justice”
 The crowns responsibility is not to seek a conviction but to present all

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available evidence to allow the tryer of facts to come to right results – this
doesn’t mean that crown can’t be adversarial but they have to be mindful
that their role is to ensure fairness, and it’s not about winning
 Ethical obligations on Crown is to provide the defense lawyer with all
relevant evidence (even if it goes against them, this was obtained from R v
Stinchcombe case in 1991), and to only prosecute where there is a
reasonable prospect of conviction (not a high threshold, is there sufficient
evidence that would allow a jury to convict)
3) ethical obligation on Defence to provide a competent representation
 investigate all avenues, do your own independent investigation, interview
all witnesses that you think might have anything to do with the case
 In this case this did not take place- they should have requested statements
of Chant & Pratico
4) Jury selection
 In this case, we had an all-white jury and nothing to screen the jury
 Little guidance to jury from trial judge about how to approach the case
5) Failure to object to admissibility of evidence
 Jury saw Marshall’s tattoo- “I hate police” made an impact on the jury
 The fact that he was indigenous also made an impact on the all-white jury
6) Trial Judge’s obligation to properly instruct the jury on evidence
 This trial judge did not instruct the jury on evidence
 A trial judge should give a “charge to the jury”- in this the trial judge will
summarize the facts, highlight to jury the key concepts of criminal justice
system (presumption of innocence, beyond reasonable doubt), properly
instruct jury on the law
7) Reasonable doubt standard
 Tryer of fact can only convict when they are satisfied beyond a reasonable
doubt
 It’s not probable guilt, it’s not absolute certainty, but it’s much closer to
absolute certainty than it is probable guilt- 95% sure that he did the crime
8) Appeal process
 2 jurisdictions- 1) error of law or 2) unreasonable verdict are the 2 grounds of
appeal
 Court of appeal examines the conduct of Crown
 In this case, there was an argument that Defence council was incompetent
 It’s so make sure the institution actors acted according to the law (Crown,
Judge)
*These safeguards are to ensure a person will have a fair trial and this will restrict any
wrongful convictions
Failures in the Case:

1) Police
 Royal Commission found that the police was incompetent,
unprofessional

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 a powerful piece of evidence and part of his innocence is that he stayed

around after to see to it that the police came and the guy was taken care
of, he also gave the statement to the police (after crime actions are huge
in determining guilt/innocence)
 MacIntyre (the police officer) ignored all this evidence, no attempt by
him to locate the 2 described by Marshall to be involved in the killing, the
police department did not take up any resources from RCMP, no autopsy
was performed, the information was essentially implanted by MacIntyre
through Chant and Pratico
 Police investigation was significantly flawed
2) Trial Process
 Didn’t interview them even though he knew they had given conflicting
evidence
 In homicide case, its’ critical that Crown interview witnesses if they have
any doubts
 Crown should have disclosed the inconsistent statements to the Defence
3) Defence Council
 Did not seek disclosure in Crown’s case
 Defence aware of inconsistent statements of Pratico and Chant but
didn’t investigate them
4) Trial Judge
 Incompetence and didn’t know the law
5) Appeal process
How did racism play a role in Marshall’s wrongful conviction?

- Heightened chance tunnel vision will increase when the person is racialized by
police officer
- Overt racism was the case in Marshall’s case
- Stereotyping leads to “selective inattention”- where your critical senses are
dulled because you have constructed the situation not based on evidence but
based on stereotypes, you’re less likely to be critical of flawed signs,
identification evidence, confessions, because you’ve already concluded that the
person is likely guilty
- Social factors and class play a role as well, but racism is the leading cause
- This is why we see so many errors in racialized accused victims
- Selective inattention can impact lawyers as well. In this case, the Crown had
tunnel vision, they constructed Marshall as guilty (especially with his tattoo) and
concluded that he was a troubled young man more likely to break the law than if
he was white
- Jury selection (all-white jury) lead to racism jurors being on the stand
- There was no screening for bias in this case for the jurors
- Starlight tours: the act of police officers leaving Indigenous individuals on the
outskirts of town without proper clothing in the middle of winter
- Misuse of character evidence: accused are misrepresented by misuse of

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character evidence. Jury may overuse the character evidence to the crime. Say
someone has a criminal record, the only issue that the record can be used for is
credibility, not for use in the trial and how he’s charged
- The tattoo in Marshall’s case had nothing to do with case, so why did the
Defence not hide the tattoos oh “I hate police” during the trial
- Police Perjury- act of a police officer giving false testimony. This is more common
with racialized groups
- Fact-finding: how do we protect against jurors against bias? Sometimes the facts
that are found are based on polices bias against the racialized person and not all
proper facts are found
Ratio Prosecution must provide full disclosure without determination on what may be useful
to the defence
True Crimes and Regulatory Offences
True Crime Offences

- Offences in which mens rea consisting of some positive state of mind such as intent,
knowledge or recklessness, must be proven by the prosecution either as an inference
from the nature of the act committed or by additional evidence.
o In this the underlying act is wrong, immoral or generally recognized as criminal;
focus is on individuals fault; higher degree of moral blameworthiness; focus is on
the past act and punishment and deterrence. Sault Ste Marie: “the doctrine of
the guilty mind expressed in terms of intention or recklessness, but not
negligence, is at the foundation of the law crimes. In the case of true crimes
there is a presumption that a person should not be held liable for the
wrongfulness of his act if that act is without mens rea”
Absolute and Strict Liability

- there has to be a mental state with regards to “true criminal offences”
- for other types of offences that are not true criminal offences, often called “regulatory”
or “public welfare offences”, the Crown is not held to such a high standard
- liability for regulatory offences may be satisfied by proof of the act requirement, “actus
reas”
Differentiating between true crime and regulatory offence

- 1) difference between true crimes and regulatory offences: much has to do with nature
of the harm. In true crimes we’re talking about dangerous activity that’s evil and
harmful and poses a significant risk to life and bodily integrity (margarine reference), so
we use Criminal Code. Whereas for regulatory, we’re talking about lawful activity,
licensed but we want to make sure certain standards are met in the industry.
- 2) Stigma is another way to differentiate between true crime and regulatory offences

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- 3) Mandatory minimum sentencing- the nature of the penalty suggested this wasn’t a
regulatory offence but rather a true crime
- Harm/evil with drugs different from harms associated with bad meat or dairy or
undersized lobsters (R v Pierce Fisheries Ltd (Fisheries Act)).
Regulatory offences
- Strict Liability Offences: offences in which there is no necessity for the crown to prove
the existence of mens rea, the doing, on its face, imports the offence. This leaves it open
for the accused to avoid liability by proving that he took all reasonable care Involves
consideration of what a reasonable man would have done in the circumstances.
- Absolute Liability Offences: where it is not open to the accused to exculpate himself by
showing that he was free of fault (requires clear legislative intent)
 In absolute liability offences the Crown does not need to prove intent “mens
rea”. The defence of due diligence is not available.
R v Beaver [1957] SCC (still good law today)

Facts  Charged with possession of heroin
 Luis and Max were the two brothers who were charged with possession of heroin
without the authority of a license contrary to section 4(1)(d) and unlawfully selling
heroin 4(1)(f)
 Sold it to an undercover cop (Tacy). Claimed he thought it was sugar or milk, didn’t
know it was an illicit drug. Never challenged that he sold the package.
 Beaver arranged for the drugs and although he didn’t hand over the drugs, it was
his brother (accused) who got and handed over the drugs to Tacy. However
because he was part of the party, he’s responsible to some extent
 Claimed he did not know that the package contained drugs (he believed it was just
sugar) (mistake of fact is a defense)
o Mistakes of law is not a defence, mistake of fact goes to the knowledge of
the accused subjectively
 Ignorance of the law (s.19 CC)
Law/Sources S 4(1)(d) of Opium and Narcotics Drug Act, RSC 1952 c. 201: possession of heroin without
the authority of a license
S 4(1)(f) of Opium and Narcotics Drug Act, RSC 1952 c. 201: Unlawfully selling heroin with
authority of a license
Issues 1) Are narcotics law regulatory or are they true crimes?

2) And is absolute liability sufficient fault harm?
Reasons/  Beaver’s testimony entailed a reasonable doubt that he actually thought it was
Analysis sugar or milk, and not heroin
 Have to be aware of the general characteristic of the substance
 Mistake of fact has to be honest, not always reasonable (did he honestly believe it
was sugar or milk? Reasonableness comes into play when the trier of fact is
deciding if they believe him)

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 SCC, fault element is rarely spelled out: “essence of the crime is the possession of
the forbidden substance, in law there is no possession without knowledge of the
character of the forbidden substance.”
 The Supreme Court held that a person in physical possession of a substance could
not be said to possess that substance unless he or she knew the nature of the
substance.
 Mistake of fact can negate knowledge but cannot negate willful blindness.
Issue 1(subject-matter jurisdiction)

- Majority said regulation of narcotics is about criminal law under 91(27) and is a
true crime
- Is the underlying conduct unlawful is something they look at when looking at the
difference between true crime and regulatory crime
 Selling unsound meat is a regulatory offence for example
- Drugs are not like unsound meat, it’s unlawful activity
- Ex: Driving is lawful activity but certain activities while driving (speeding) are
restricted and are considered crimes
- Mandatory minimum- the nature of the penalty suggested this wasn’t a regulatory
offence but rather a true crime
- Court takes a look at the nature, stigma, and mandatory minimum sentencing to
see whether this is a true crime or regulatory offence
- Court decides that possessing and trafficking drugs is a true crime
Issue 2
- Statute is silent as to the fault requirement- anyone who is found in possession of
drug is guilty of an offence and is sentenced to imprisonment (absolute liability)
- Majority agreed this is silent in terms of knowledge (does the crown have to prove
beyond reasonable doubt that the substance was a drug)
- Beaver created a leading authority that we begin with presumption of subjective
fault so in subjective offences, that the accused knew that it was heroin
- Majority said it’s a true crime and so Crown has to prove that he knew it was
heroin
- “The essence of the crime is possession of the forbidden substance and in a
criminal case, there in law is no possession without knowledge of the character of
the forbidden substance” -> famous take-away from this case
- For true crime- we have full mens rea- subjective fault
- It’s a crime for the seller to hold out a substance to be a drug- this is a harmful
conduct that the law tries to minimize because it’s harmful to the person
purchasing the drugs (this is why it’s criminalized)
Ratio  “The essence of the crime is the possession of the forbidden substance and in a
criminal case there is in law no possession without knowledge of the character of
the forbidden substance”
 For crimes involving possession of a narcotic, the Crown must establish that the
accused had physical control of the prohibited substance with subjective

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knowledge that the substance was prohibited. An honest mistaken belief, no

matter how unreasonable will serve to negative Mens Rea.
 Ex: A person with an honest belief that a substance was baking soda would not
have the mens rea for possession even if the substance turned out to be morphine
Dissent  Minority says it’s a regulatory offence (presumption of strict liability)
(Fauteux J)  The objective of the Act is to prevent, by rigid controls of the possession of drugs,
the danger to public health and to guard society against the social evils which are
uncontrolled traffic in drugs is bound to generate
 The sale, importation, exportations and production should be done through a
license with the Minister of National Health and Welfare
 Does not mention the mens rea aspect, just says a person is guilty of possession of
drug if drug is found on the person
R v. Sault Ste Marie, 1978 SCC

Facts - Sault Ste. Marie was responsible for the disposal of garbage in their city.
- They entered into an agreement with a third party to dispose of garbage in a
particular area.
- This party created a landfill that leaked into the nearby river causing pollution.
- S. 32(1) of the Ontario Water Resources Act stated that every person or
municipality that discharged, deposits or causes or permits the discharge or
deposit of pollution into water is liable under summary conviction at the first
offence for a fine of not more than $5000, and on subsequent offences of a fine
not more than $10,000 or to imprisonment for less than a year.
- The charge was dismissed at trial as the judge held that the city was not itself
responsible for the disposal operations, but a conviction was entered at trial on
the basis of strict liability under the Act.
- We know it’s a regulatory offence because it’s a provincial offence, it cannot be
a true crime because it would then be ultra vires
Issue - What is a public welfare offence and is it a strict liability offence?
Sources - S. 32(1) of the Ontario Water Resources Act stated that every person or
municipality that discharged, deposits or causes or permits the discharge or
deposit of pollution into water is liable under summary conviction at the first
offence for a fine of not more than $5000, and on subsequent offences of a fine
not more than $10,000 or to imprisonment for less than a year
Decision - Appeal and cross-appeal dismissed, new trial ordered; it’s a strict liability offence
Analysis Dickson, writing for a unanimous court, goes through all of the reasons for and against
public welfare offences in other jurisdictions and comes to the conclusion that they are
to have a lesser fault requirement than true crime offences (those in the Code).
However, when they are serious and have the risk of hefty fines or imprisonment the
defendant should not be absolutely liable; they should have the chance to excuse
themselves if they can show, on a balance of probabilities, that they lived up to
reasonable standards in the situation. He defines three types of offences:
1. True crimes: offences that require mens rea/ mental component

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2. Offences of strict liability: offences in which there is no necessity for the Crown
to prove the existence of mens rea but the defendant can get off by proving that
they acted reasonably in the circumstances. Public welfare offences tend to fall
in this category, as they are not in the Code, but have the risk of large fines or
imprisonment associated with them. If you can prove on a balance of probability
that you took all reasonable steps to deter the harm, then you’re not held liable.
Reverse Onus (onus on individual to prove due diligence) Due diligence: did you
take all reasonable steps to prevent the harm/ what would a reasonable person
do in this case
3. Offences of absolute liability – The Crown does not need to prove mens rea, and
the defendant has no chance to exculpate himself by showing he was acting
reasonably. These are generally only offences with very minor fines as
punishment. This is meant to increase deterrence and more efficient in making
out the offence (onus is on the Crown)
He goes on to state that another reason why specific offences fall under the latter two
headings are because they are created in provincial statutes. Provinces have no control
over criminal law under the Constitution Act therefore they cannot be "true crimes".
How do we know if something is regulatory:

- Presumption if important- if its regulatory offence, there’s a presumption of
strict liability
- Nature of the language- is it serious harmful conduct or is it a minor infraction
- Nature of the penalty- length of penalty
The presumption you start with is always strict liability for regulatory offences and you
start with the presumption of full mens rea for true crime offences and then based on
the nature of the penalty, language, you can see if something is absolute liability or not
(is there a due-diligence defence that would be available then the presumptions been
rebutted, and the offence is an absolute liability). The sleigh bells example was an
absolute liability offence.
Ratio - There are three different types of offences: true crimes, strict liability offences,
and absolute liability offences.
- Offences that are created in provincial statutes can only be absolute or strict
liability offences, because provinces have no jurisdiction to enact criminal law.
- This case come up with the idea of strict liability (before this there was only
absolute liability and full mens rea)- the idea of an accused to defend
themselves through due diligence and there has to be something between full
mens rea and absolute liability and so they came up with the concept of strict
liability
- In general, public welfare offences are strict liability offences.
- If there’s a chance of imprisonment, then it needs to be strict liability so the
accused can defend themselves—cannot have absolute liability with an

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imprisonment sentence
Reference re BC Motor Vehicle Act, 1985 SCC

Facts - Section 94(2) of the Motor Vehicle Act stated that a person who drives a motor
vehicle on a highway while license is suspended is guilty of an offence, and is
liable to a fine between $300 and $2,000, and imprisonment between a week
and six months (on the first offence).
- Legislature says 94(2) are absolute liability offences- there’s no possibility of it
being strict liability
- The government is arguing that this does not violate s.7 of the Charter.
- The Court of Appeal ruled that this violated because absolute liability offences
cannot have mandatory prison sentences.
- Having mandatory prison sentences for crimes that have no defence violates the
principles of fundamental justice and the right to be presumed innocent.
- However, they did not answer whether or not merely having imprisonment
available as an option for an absolute offence was contrary to s.7.
Issue 1) Did absolute liability that has imprisonment invoke s. 7?
2) What principle of fundamental justice is at play here?
3) Does s. 7 allow courts to review the decisions of parliament or legislatures in enacting
offences or is s. 7 limited to procedural fairness?
Sources Section 94(2) of the Motor Vehicle Act stated that a person who drives a motor vehicle
on a highway while license is suspended is guilty of an offence, and is liable to a fine
between $300 and $2,000, and imprisonment between a week and six months (on the
first offence).
Section 7 of Charter: Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the principles of
Decision - Appeal dismissed; the section violates s.7 of the Charter and is of no force and
effect.
Analysis Lamer, writing for the majority:
- states that even having imprisonment available as a punishment for an absolute
liability offence always violates s.7 of the Charter, and renders the section of the
legislation of no force or effect unless it is justified by s.1.
- He states that the principles of fundamental justice rests not just in the
procedural context, but also in our rights. The combination of imprisonment and
absolute liability always violates s.7 and must be saved by s.1 in order for it to
remain valid. However, doesn’t mean that all absolute offences violate s.7 - only
the ones with imprisonment available as a punishment.
Lamer does not find that this section is saved by s.1, as it does not "minimally impair"
the impugned right (this judgment is pre-Oakes). In her concurring judgment, Wilson
talks more about the objectives of imprisonment, and how they are not served by

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imprisoning people without a chance to defend themselves.
Issue 1:
- Yes, it is because imprisonment affects the liberty of a person under s. 7
Issue 2:
- Imprisonment without giving them an opportunity to demonstrate a defense
- Morally blameless cannot be punished- this is the PFJ that comes from this case
- Principle of fundamental justice under section 7 that you cannot imprison the
morally blameless (Defined as someone who doesn’t have a guilty mind)
Issue 3:
- It has to be strict liability or full mens reas, it can’t be absolute liability if
imprisonment is an available punishment
- You can’t imprison someone who’s blameless
Ratio - Absolute liability offences that have imprisonment available as a punishment
violate s.7 of the Charter.
- Imprisonment without a chance of defence is contrary to the principles of
- Imprisonments triggers s. 7
- You can’t have imprisonment in absolute liability, it has to be strict liability of full
mens rea if you want to have imprisonment as a punishment
- New principle of fundamental justice: you can’t imprison the morally blameless
- Principles of fundamental justice are not a right, they’re a qualifier for the right
- Imprisonment requires a guilty mind

Criminal Law Notes Final

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Criminal Law Notes- Final

Criminal Law (University of Windsor)

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Overview of Criminal Law

The Criminal Process

Principles of Criminal Liability

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Principles of Exculpation (to find someone not guilty of a crime)

The Criminal Law and Division of Powers

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Cases ultra vires jurisdiction of province

Switzman v. Elbling, SCC 1957

R v Morgentaler, SCC 1976

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Analysis Pith and Substance

Westendorp v The Queen, SCC 1983

- At trial, Westendorp was found guilty under the by-law.

- Westendorp appealed to the Supreme Court on the grounds that

Issue - Was the by-law ultra vires the province?

If a province or municipality may translate a direct attack on

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Charter of Rights and Freedoms Sections

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Common Law Defences

Common Law Offences

Criteria for Establishing Criminal Law (Prohibition, Penalty, Criminal Purpose)

Reference Re Firearms Act (2000)

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Reference Re Dairy Act (Classic Margarine Case), 1949 SCC

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Organizing Principles of Criminal Law

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Role of Criminal Courts

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 Doctrine of strict interpretation: This means that

Assault: Unwanted Touch or Gesture Without Consent

R v Jobidon (1991 – SCC)*bar fight*

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not exceed the level of consent that's normal)

R v W(DL), 2016 *Bestiality*

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R v RDS, 1995 *black boy and white police officer*

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Debating the Harm Principle

Devlin: The Enforcement of Morals

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Hart: “Immorality and Treason”

Malmo-Levine challenges the constitutionality of the prohibition, focusing on using the

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BECAUSE HARM PRINCIPLE FAILED ALL 3 OF THE TESTS, IT IS NOT A

MCLACHLIN C.J. AND GONTHIER, IACOBUCCI, MAJOR, BASTARACHE

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DIVISION OF POWERS ARGUMENT

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- Majority said we need to focus on harm; harm that’s subject to proof

MCLACHLIN C.J. AND MAJOR, BINNIE, DESCHAMPS, FISH, ABELLA

Objective 2 step test to determining if conduct is indecent (para 62):

On the basis of the test, the court said:

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In order for conduct to be indecent it must be sufficiently harmful (objectively

They set out another approach:

R v Jobidon (1991 – SCC)bar fight

R v W(DL), 2016 Bestiality

R v RDS, 1995 black boy and white police officer

R v Heywood, SCC 1994 offender in park