CRIM 230 Lecture Notes - Foster Care, Statutory Interpretation, Murder
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Sources of criminal law
A. Statues: all offences in Canada must derive must legislation i.e. federal
statutes and regulations and provincial statutes and regulations. Federal
legislations include criminal code, customs acts, Controlled Drugs and
substances act… etc. provincial legislations includes highway traffic, public
health and occupation safety
B Judge made Law: without doubt, judges, through the power of
interpretation, create various meanings to statutes. The supreme court of
Canada emphasized the judicial discretion as follow: the modern approach of
statutory interpretation require that the words of the legislation be read in
their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the act, the object of the act ad the
intention of the parliament.
o What are the factors/ limitations that effect judge interpretation?
1. Imperfect statutory drafting
2. Doctrine of stare decisis (to abide by the decision) lower
court must follow higher courts, however, the supreme court of
Canada can depart from its previous decisions.
3.historical origin of Canadian law. Does Canadian judges
follow the wisdom of English case law blindly?
4. The use of secondary sources of interpretations i.e.
Academic writing and law reform commissions.
C. Charter of rights and freedoms: 1. Purposeful interpretation of entrenched
rights: supreme court of Canada explicitly stated that courts must adopt
purposeful interpretation of the charter
Section 16-insanity as a defense
Almost all crime requires the physical (actus reas) and the mental element
September 14, 2012
What is Actus Reus
There is acceptable meaning for the act requirement Actus Reus
However, requiring actus reus is essential to negate liability for mental
Commentator attempt to defined Actus Reus unsuccessfully. Cook, Austin
and Holmes defines it as “a muscular movement that is willed”. Other
defines it as
the requirement of an act
o 1. Of commission or
o 2. In certain cases only, of omission
o 3.by a human being
o 4. That is voluntary
o 5. Achieving certain consequences (if consequences are part of the
Act of commission R. v. Burt
o The act of commission requirement best understood according to
the Supreme Court guidelines.
o The accused was charged with allowing someone to operate his
vehicle with excessive noise contrary to law.
Act of commission-cont- Ambiguously defined acts.
o The Supreme Court in a number of cases attempts to clarify vague
o The term sexual was not defined in the criminal code. The court
rejected the proposal that woman breast is not a sexual object. The
court adopted objective test of whether a sexual context would be
visible to a reasonable observer.
o In the wide offense of keeping bawdy-house, the court required a
proof of control over care and management of premises and some
proof of some participation in the illicit activity
o In labaye (2005) the accused, an operator of a swingers club, was
charged with of keeping bawdy-house. The court replaced the
former act requirement (determining the community level of
tolerance) to more objective test (causing harm to the society).
Special difficulties: status offenses
o Status offenses best defined as “attaching criminal responsibility
to someone merely by reason of his status, capacity or physical
situation apparently dispensing with he need for either act or
omission as prerequisite for conviction” Examples: wandering
being found in a common bawdy house or being a drunk in a
public place. Typically this type of offenses are vaguely worded.
o However, if the offense include an act requirement, all act
requirement must be present. In any case the requirement of
voluntariness is vital.
Acts of Omissions
o Criminal responsibility for omissions can arise if:
o 1. The statutory offense definition includes omissions, and
o 2. There is a legal duty to act recognized in a statute of common
o Should law recognize a moral duty to act instead of legal duty to
o Good Samaritan law.. objection if we ask an individual they may
risk their own life,
o There are three main categories:
Offenses extending to mere omissions and also imposing
legal duty to act: ex: failing to report a treason
Offenses that do not extend to omissions even if an
independent statutory legal duty can be found. This type
occur only by act of commission ex. Assaulting police officer
Offenses that extend to omissions but do not create a legal
duty out side the offense. These are two main categories:
Law (the code) refer to a duty without definition ex.
Permitting an escape by failing to perform legal
The definition section uses wide words such as
causes (as in homicide cases)
Omissions to provide necessities of life (is s.215 broad enough?)
o 215. (1) everyone is under legal duty
(a) as a parent, foster parent, guardian or head of a family, o
provide necessaries of life for a child under the age of
(b) to provide necessaries of life o their spouse or common-
law partner; and
(c) to provide necessaries of life to a person under his
charge if that person
(i) is unable, by reason of detention, age, illness,
mental disorder or other cause, to withdraw himself
from that charge, and
(ii) is unable to provide himself with necessaries of
By a human being
o In some circumstances, criminal liability can arise from the
conduct of an animal or an agent, however, a human conduct, that
allow the animal to harm, must be present. Ex. A horse causing an
accident after braking a fence.
o Notably, mandatory supervision on human acts does preclude
liability. In devgan (2007) the defendant was found guilty of drug
trafficking by describing unlawfully narcotics although a
pharmacies should exercise independent judgment prior to
dispensing any medication.
o One of the fundamental requirement of Actus Reus is voluntarism.
There is no basis for this requirement in the criminal code,
however, the supreme court of Canada recognized the
requirement is a number of cases in Parks the court adopted the
following approach (…principle, fundamental to our criminal law,
which govern this appeal is that no act can be criminal offense
unless it is done voluntarily. In parks the court left the issue of
sleepwalking to the jury. Sleepwalking was considered as a form of
A. statues: all offences in canada must derive must legislation i. e. federal statutes and regulations and provincial statutes and regulations. Federal legislations include criminal code, customs acts, controlled drugs and substances act etc. provincial legislations includes highway traffic, public health and occupation safety. B judge made law: without doubt, judges, through the power of interpretation, create various meanings to statutes. Doctrine of stare decisis (to abide by the decision) lower court must follow higher courts, however, the supreme court of. The use of secondary sources of interpretations i. e. academic writing and law reform commissions. C. charter of rights and freedoms: 1. Purposeful interpretation of entrenched rights: supreme court of canada explicitly stated that courts must adopt purposeful interpretation of the charter. Almost all crime requires the physical (actus reas) and the mental element (mens rea) There is acceptable meaning for the act requirement actus reus. However, requiring actus reus is essential to negate liability for mental element alone.