CRIMINAL LAW PURPOSE
Reference Re Genetic
Non-Discrimination Act (2020)
Frey v fedoruk [1950]- peeping
Amato V the queen [1982
Jobivon, clark is all about statutory interception, parliamentary intent, critical of policy trumps every
other aspect even clear langauge from parliament, use social utility lens –powerful case to use when
R v Jobidon
R v Clark
To figure out if something is
ultra vires, the courts must first
determine what the pith and
substance
Is conduct of plaintiff enough to
constitute a criminal offense?
Can the court create common
law offences
Is entrapment a justifiable
defence even though it is not
found in the Criminal Code or
other cases
STATUTORY INTERPRETATION
arguing for policy.
By striking Haggart once he was
unconscious, the accused acted
beyond the scope of the
consent of Haggart and thus
committed the actus reus of
assault.
reads the act with concern for
Parliament’s intention and
concludes that the definition of
The act is intra vires of
Parliament’s powers and
therefore constitutional. Crime:
a prohibition with penalty
including imprisonment enacted
for a criminal law purpose
PRINCIPLE OF LEGALITY –
citizens should know
beforehand what is punishable.
The decision of what is lawful is
up to parliament, not the
courts.
As long as consistent with the
Criminal Code, new defenses
are allowed to be developed
because lawmakers cannot
possible foresee all possible
circumstances and justifications.
Parliament provides that no
person is entitled to consent to
have death inflicted on him
any ambiguity is resolved to
favour the accused
 “public space” does not for the
purposes of s.174(1) include
private places exposed to public
view. S 213(1) confirms that the
ordinary interpretation of
“access” is consistent with
Parliament’s intention when
they enacted s 150, therefore
the court has to believe that
Parliament did not intend
indecent acts that are
committed in such places to be
criminal

R v Labaye Stat inter based on what is

The Legal Test for Criminal
Indecency
in order for conduct to be indecent= not tolerance test,
indecent, it must be sufficiently formally recognized is harm that
harmful (objectively speaking) is grounded in norms that
to warrant criminal sanction. If society has recognized, protect
liberty, equality. Has to arise to
the only people involved in or
serious degree of harm. ->
observing the conduct were INDECENCY TEST (would fail on
willing participants, indecency masturbation case- clarke)
on the basis of this harm will
not be made out. Attitudes in
themselves are not crimes,
however deviant they may be or
disgusting they may appear.
What is required is proof of
links, between the sexual
conduct at issue and the
formation of negative attitudes
and between those attitudes
and the potential risks

R V Sundman, 2022 Looked at unlawful confinement Application of the single

under s. 279(2) of the Criminal transaction test
Code Temporal casual connection test
● a deprivation of a
person’s liberty
And Section 231(5)

ARBITRARY
R v. Morgentaler
R v Heywood, [1994]
Appeal dismissed, and
conviction was quashed. The
law is overbroad: applies to
offenders who did not
constitute a danger to children
applied to parks where children
were unlikely to be present
unrelated to its objective: to
protect children from sexual
predators,
GROSS DISPROPORTIONALITY AND OVERBREADTH
Can (AG) v Bedford
Court for the first time pulls
together all the threads for
arbitrariness, overbreadth,
gross disproportionality and
comes up with a standard
No direct connection between
the purpose of the law and the
impugned effect on the
individual
[98] arbitrariness is used to
describe the situation where
there is no connection between
the effect and the
object of the law
OVERBREADTH
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.
Security of the Person
TRIGGERED
​ Principles of
Fundamental Justice
Analysis
a law that imposes limits on
interests of life, liberty, and
security of the person in a way
that bears no connection to its
objective; arbitrarily impinges
on those interests
Overbreadth means that the law
is too generally sweeping and
that it is sometimes too
arbitrary or disproportionate to
its purpose
deals with a law that is so broad
in scope that it includes some
conduct that bears no relation
to its purpose [112]
​ law go too far -- it
captures
people/situations you
don’t want captured
The Courts concluded that this
provision is overbroad and
unconstitutional captures a
number
of non-exploitative relationships
which are not connected to the
law’s purpose BUT some
relationships are potentially
captured by the offense like
employees, paying for their
child's education
 This provision is grossly
disproportionate to the
objective of preventing nuisance
and
community disruption

VAGUE

Canadian Foundation for
children v Canada 2004
When we properly interpret
corrective force and
reasonableness it is not vague
Section 43 of the Criminal Code
is not vague when limits read
into decision to address “by way
of correction” and “reasonable
under the circumstances”

R v Malmo-Levine; R v Caine ● Cannot use section The "harm principle" is not a

2003 SCC 74 7 to assess wisdom fundamental aspect of our
APPLICATION - Is the harm of Parliament’s justice system and is not needed
principle a principle of decision to to be included in crimes for
fundamental justice-> law was criminalize based on them to be constitutionally
insufficient harm to valid.
GROSSLY DISPRAPORTIONATE
warrant criminal
label/sanction Gross disproportionality applies
● Gross only in extreme cases where
disproportionality “the seriousness of the
principle (section 7) deprivation is totally out of sync
(balancing harms) with the objective of the
available but only in measure”
extreme cases
● Section 12 (cruel &
unusual
punishment) to
assess sentencing

ARREST POWERS

R v Le 2019 The focus is on how the Detention is arbitrary when it is

to find racial profiling it is
important to focus on what a
reasonable person in the shoes
of the accused would perceive
about the detention, not on
what motivated the officer
combination of a racialized
context and minority status
would affect the perception of a
reasonable person in the shoes
of the accused as to whether
they were free to leave or
compelled to remain.= s. 9
detention analysis is thus
contextual in nature and
not authorized by statute and is
not in pursuit of a lawful,
investigative purpose.
the police can only detain a
person if they reasonably
believe that the person has
either just committed a crime or
is in the process of committing
one.
 involves a wide ranging inquiry.=
relational aspect bw police and
racialized community.

Canada (AG) v. Bedford (2013) Leading precedent for 3 The case law on arbitrariness,
fundamental principles of overbreadth and gross
justice disproportionality is directed
against two different evils.

BURDEN OF PROOF

R v Oakes [1986] Oakes case Presumption of innocence:

● Presumption of protects the fundamental liberty
innocence and and human dignity … ensures
reverse onus that the state proves an
● Presumption of accused’s guilty beyond all
possession violated reasonable doubt, he/she is
presumption of innocent
innocence.
● Stat revision Mandatory presumptions in
alleviated crown of relation to an essential element
proving possession of the offence that imposes
beyond a onus on the accused to rebut on
reasonable doubt a balance of probabilities
violates section 11(d) of the
Charter

QUANTUM OF PROOF

R v Lifchus reasonable doubt in criminal Lifchus standard: beyond a

trial reasonable doubt

R v Starr 2000 an instruction like the one in Lifchus standard: beyond a

this case, which fails to explain reasonable doubt
that the beyond a reasonable
doubt standard has special legal
sig- nificance and requires a
significantly higher quantum of
proof than the balance of
probabilities, will not satisfy the
Lifchus standard.

INDIGENOUS LEGAL ISSUES AND CRIMINAL LAW

R v Ippak 2018 When there is a conflict

between Aboriginal and
Canadian law, there is a need to
incorporate Aboriginal values
 and accommodations in the
adversarial system.

R v Turtle s. 15 claim is that people like the practical unavailability of an

claimants who live on the
reserve at Pikangikum are
disproportionately denied
access to the benefits of s. 732
of the Criminal Code which
authorizes intermittent
sentences= financially and
logistically prohibitive
intermittent sentence for the
Pikangikum female applicants as
a result of their status as
on-reserve band members
discriminated against them and
unjustifiably violated their
section 15 equality rights

WRONGFUL CONVICTION

R v Marshall, Problem = Left Marshall with he criminal justice system failed

the burden of preparing and Marshall at every turn
presenting the case to prove his
own innocence

Limited the issues facing the

Court --> confined it to just the
facts of the case rather than an
examination of why the
wrongful conviction occurred in
the first place

RECONCILIATION

R v Munson 2001
1. unlawful confinement does conditional sentencing criteria
NOT have a minimum sentence,
just a maximum sentence of 10
years.

2. The minimum sentence is a

fine, that is not appropriate for
the facts of the case.

3. Harm to community -

4. the “need for denunciation is

 so pressing that incarceration is
the only suitable way in which
to express society’s
condemnation of the offender’s
conduct.” – no conditional
sentence was allowed, got only
8 months in a correctional
facility

R v Turtle substantive : Substantive

This case reveals important Equality T quality Touches
connections between and Down in T ouches Down in
among sentencing practice, the Treaty 5 Territory
equality provisions of the
Charter, and treaty
relationships. The s. 15
discrimination analysis
incorporates an understanding
of the profound and harmful
impact of the incarceration of
Indigenous women on their
children, and the long history of
family separation which has so
defined the Canadian state’s
relationship to Indigenous
peoples, and been the cause of
so many different forms of loss
within the criminal code –
another treaty violation

R. v. Sharma By removing the remedial CONDITIONAL SENTENCES

sentencing option the impact of
the impugned provisions is to
create a distinction bw ab and
non ab offenders based on race

ROLE AS LAWYER

Boucher v The Queen Leading authority on the role of the evidence linking him to the
The only issue was whether it Crown Counsel in a criminal fire was entirely circumstantial
had been proven beyond a
reasonable doubt that the
accused had set the fire as there
was no direct evidence linking
him to the fire
R v Stinchcombe [1991]
R v Anderson, 2014
Trial)
most important Charter decision Crown's obligation to make
affecting criminal justice-
adopted a broad rule requiring
disclosure of all relevant and
non-privileged information
it is the responsibility of the
judge and not the Crown to
ensure that a sentence be
proportionate
and although he might have set
the fire, it could not be said that
the circumstances were only
consistent with his guilt and not
with any other conclusion.
disclosure to defence
court said that crown is NOT
required to take into account
the clients indigeneity when it
comes to their sentencing. This
is part of prosecutorial
discretion