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University of Toronto St. George
Woodsworth College Courses
Dena Demos

RECAP FROM LAST WEEK - Big ideas o Charter of rights and freedom  Of no force and effect, control what parliament can control what can and cannot be crime  Inconsistent with the principles of fundamental justice  Oakes test!  Justifiable limits ESSENTIAL ELEMENTS OF THE CRIMINAL ACT CHARTER CHALLENGES, CONTINUED… Pornography R. v. Butler - focus on s. 163—offence to make, print, distribute etc, obscene material - Section 163(8) provides a definition of “obscene” …any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one of more of the following subjects, namely, crime, horror, crulty and violence, shall be deemed to be obsecene. FIRST ISSUE—what is “undue exploitation” - Interpret the section before looking at constitutionality UNDUE EXPLOITATION - To be measure on the basis of “community standard of tolerance”; what the broader community not want others to see - 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 community standard of tolerance a) Explicit sex coupled with violence—almost always obscene b) Explicit sex without violence, but degrading/dehumanizing –obscene if risk of harm from exposure to is substantial c) Explicit sex without violent, not degrading/dehumanizaing—tolerated unless children are involved CHARTER ANALYSIS - Pornography laws (and child pornography laws under s.163.1) violates s.2(b) of the Charter—restrcits expressive activity (content is not relevant consideration), depiction of sexual activity conveys meaning BUT saved under s. 1 a) Pressing and substantial object? Protection against harm AND/OR regualiton of morality YES b) Rational connection…YES c) Minimal impairment –does not cirminalize expression which celebrates healthy human sexuality—narrow and focused d) Proportionality SAME analysis applied to hate crime provisions (s. 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? RULING: 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 analysis: a) Pressing and substantial objective, protect young people from activities that increase risk of physical and psychological harm b) Rational connection –no, if the objective is to prevent hamr and reduce health risks, no reason to target 14 to 18 year olds, no reason to incarcerate people to reduce risk a. “there is no evidence that threatening to send and adolescent to jail wil prevent (or her) from the risks of anal intercourse” ESSENTIAL ELEMENTS - What constitutes a crime? o Mental element; mens rea o Physical act; actus reus - Criminal law: act + fault (guilty, penalized act) - Act: 1) Of commission, or, 2) In certain cases only, of omission 3) That is voluntary, and, 4) If the consequences are part of the definition, have caused those consequences o Remember Frey v. Fedoruk: o Section 177:  Every one who…loiters of prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction  AR? Circumstances:? Consequences o Don’at always need physical touching:  265. (1) A person commits and assault when…(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he had, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose - Causation may not be part of the definition in the Criminal Code - Example: o Section 241 Every one who : a) Counsels a person to commit suicide, or b) Aids or abets a person to commit suicide, whether suicide ensures or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years o Examples: section 222 (5) A person commits culpable homicide when he causes the death of a human being (a) by means of an unlawful act; (b) by criminal negligence; © by causing that human being, by threats or fear of viole
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