CRM 200 Lecture Notes - Lecture 2: Common Law Offence, Actus Reus, Legal Certainty
2 May 2018
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• Codification means to be written in statue
• When a law is codified it is found within a piece of legislation or a piece of statute
• The great majority of what judges do is statutory interpretation
• S.9 says people should only be convicted of offences that are codified
• Value of legal certainty is people should ko hat kid of odut the a ad a’t
engage in
• Las should e speifi so people ko hat odut is aeptale ad hat is’t
• Contempt of court is the only criminal offence in Canada that is not written in statute
and it is a common law offence
• Actus reus and mens rea are present at the same time
• People should know what it is that is illegal and what is legal
• Charter rights that are reflective, s.11(a) covers the right to be informed without
unreasonable delay of the offence charged against you
• They should be cognitive of what they are being accused of
• s.11(i) provides protection against retroactive laws, laws that are made after the fact,
the idea of legal etait, the should ko hat las the ae sujet to, a la a’t
be applied to your past behaviour
• s.11(g) an offence committed must have been illegal under Canadian or international
law, relates to s.9 of the Criminal Code
• s.7 through this section that laws are challenged for being vague or over broad
• there was always a reluctance of judges to convict people of common law offences
• to do so would enter great uncertainty to the administration of justice, common law
offences go against the value of legal certainty
• UNA Alberta judges have sought to justify common law convictions; contempt of court
power is justified because they can predict in advance what type of behaviour would be
contempt of court, most people can think of something that is inappropriate behaviour
in the court
• Contempt of court would still have to be proved beyond a reasonable doubt like any
other offence, actus reus and mens rea still have to be proved
• R.v.K.(B.)1995; Witness was placed in contempt of out, judge did’t gie the itess
an opportunity to retain council or to obtain council, the SCC said it is unconstitutional, a
person should have the opportunity to instruct and discuss with council before being
convicted
• R.v.Arradi 2005; the case should be adjourned and let cooler heads prevail before the
citation and conviction for contempt of court
• the accused needs an opportunity to instruct council and an adjournment
• interpretations of how the criminal law is worded
• a prohibited act is found within the wording of the legislation, the judges try to
understand what the wording means, a strict or purposive construction
• strict is a very literal reading of the words in the legislation
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• Marcotte v.Canada 1976 case; it is important to interpret words literally and in strict
manner, words benefit the accused and looked at most narrowly for the benefit of the
accused
• because of the liberty interest at stake the ambiguity should be resolved in favor of the
accused
• Lohnes, causing a public disturbance, this offence might have some ambiguity to it, what
is a public disturbance? Public disturbance needed to be thought of very narrowly to
acquit the accused, it had to be more than a mere mental annoyance, it had to be a
foreseeable interference with the use of a public place
• Labaye, Supreme Court overturned conviction for keeping a common body house,
consensual sex club, members only consensual sex club, no money exchanging hands,
no behaviour that was causing harm, SCC to benefit the people involved gave the
definition a very narrow and strict meaning
• R.v.Clark was acquitted of the offence of committing an indecent act in a public place,
what he did was masturbating in his own home but he was visible from outside the
home, so what is a public place? Is it a place the public has visual access to or physical
access to? SCC said it was physical access, they looked at the language very strictly to
benefit the accused
• S.174 (1)(b) if the court felt a purposive or broader reading was necessary or the
circumstances are different they can use an alternative section to the one which he was
charged
• They are looking at the purposiveness of the statute, the purpose of the words
• What were the purposes behind the legislation?
• Judges usually engage in purposive construction first, then they engage in strict
construction
• Pare; s. 231(5) allows charging and conviction of a first degree murder without
premeditation and planning, while committing very serious offences
• I Pae the aused udeed a oug o afte seual assaultig hi, he did’t at
the boy to tell anyone, the wording while committing, do the sexual assault and death
have to happen simultaneously? In this case the court said it does’t hae to e
simultaneous, it can have a time in between while committing the offences, the court
did a purposive reading of the words
• They thought of why the court had made such a law, it was to punish people who
caused death while engaging in very serious crimes, they were casually committed, part
of the same transaction, just because they actual death occurs a few minutes after it
does’t ea those thigs a’t e oeted
• After days, months, years, evidence of planning and pre meditation builds up
• This is meant to cover instances when death is caused by a person not thinking of killing
but they go into a situation committing a very serious offence and people die
• Russell begins with a sexual assault he assaults a woman in her house, the assault ends,
he goes downstairs a period of time elapses, he finds her tenant in the basement and
stabs him to death
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