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WDW101Y1 Lecture Notes - Presing

Woodsworth College Courses
Course Code
David Davies

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Thursday October 7th 2010
Lecture 3 – Essential Elements of the Criminal Act
Recap from last week:
Big ideas!
Charter of Rights and Freedoms
β†’β€œof no force and effect” – helps control what parliament can and cannot make illegal
β†’β€œinconsistent with the principles of fundamental justice”
β†’Oakes test!
β†’Justifiable limits?
Margarine how an why parliament can designated certain things as a crime – - it does this by
declaring that certain laws are of no force in effect _ SO judges or courts can deem a law
unconstitutional so it doesn’t count / it will do this if the law violates from the principles of
fundamental justice – up to the discretion of the judges – fundamentally cant deprive you of
you’re freedom – they come from the common law and are related to core values in teh justice
system –
The law as a p.o.f.j cannot be TOO BROAD / cannot be Grossly disproportionate / not VAGUE
normally the corwn but if charter violation you have to prove it, then goes back on the crown
Under section 1 – can’t do whatever you want because your rights are not absolute – Oakes had
to prove he wasn’t going to traffic the drugs he had
4 step test:
2) RATIONAL CONNECTION – what the law wants to do and the way its going about it is
logically linked
3) MINIMUM IMPAIRMENT (or minimal) can it be narrower?
unjustifiable – is what were trying to do if you have a joint in pocket to lock up rest of life
Charter Challenges Continued..

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R. v. Butler
Focus on s. 163 -- offence to make, print, distribute etc. obscene material
Section 163(8) provides a definition of β€œobscene”
...any publication a dominant characteristic of which is the undue exploitation of sex, or of
sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall
be deemed to be obscene.
what is β€œundue exploitation”? -
interpret the section before looking at constitutionality
to be measured on the basis of β€œcommunity standard of tolerance” – comes from some other
cases, it means this is not a personal thing, its a SOCIETAL thing – what people should or
should not be exposed to
What would the community tolerate others being exposed to? Not about personal exposure
Section is aimed at preventing harm from exposure to undue exploitation
Harm = predisposes people to act in an antisocial way (i.e. mistreatment of women by men)
Applying the β€œcommunity standard of tolerance” – looking at different typologies of explicit sex
(a)Explicit sex coupled with violence – almost always obscene
(b) Explicit sex without violence, but degrading/dehumanizing – obscene if risk of harm from
exposure is substantial
(c)Explicit sex without violence, not degrading/dehumanizing – tolerated unless children are
So is this section a violation of freedom of expression?
Charter analysis:
Pornography laws (and child pornography laws under s. 163.1) violate s. 2(b) of the Charter –
restricts expressive activity (content is not relevant consideration)

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β€’Depiction of sexual activity conveys meaning – is porn is about sexual gratification and the
depiction conveys a lot of meaning by limiting it limits your expression – power, control it
means something so have to look at what it means and what it means for society
β€’BUT Saved under s. 1
(a) Pressing and substantial objective? Protection against harm AND/OR regulation of
morality? -
(b) Rational connection
(c) Minimal impairment – does not criminalize expression which celebrates healthy human
sexuality – narrow and focused
(d) Proportionality
SAME analysis applied to hate crime provisions (s. 319)
Charter Analysis: Anal Intercourse
R. v. C.M. (1995, Ont. C.A.)
Challenged s. 159 of the Criminal Code which made it an offence for people under the age of 18 to
consent to anal intercourse
Age of consent for vaginal intercourse at the time was 14 years old
ISSUE: does this violate s. 15 equality rights?
s. 159 violates s. 15 because it discriminates on the basis of sexual orientation (not listed but
analogous ground)
- Arbitrarily disadvantages gay men by denying to them until they are 18 a choice that is
available to heterosexual adolescents at the age of 14
Section 1 Oakes test analysis:
(a)Pressing and substantial objective
β†’Protect young people from activities that increase risk of physical and psychological
(a)Rational connection – no – why? Shouldn’t incarcerate people for having anal
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