CASES CH 1
Case #1- Reference re Firearms Act
Background: Firearms Act required the holders of all firearms in Canada to acquire
licences for and to register their gun
Main issue: is enactment of Firearms Act a jurisdiction of federal criminal law?
o Federal govt. asserts that the gun control falls under its criminal law power and
under its general power to legislate for the Peace, Order and Good Government
o Alberta says the law falls under its power over property and civil rights
Parliament has jurisdiction over gun control law is to enhance public safety
Analysis -- What is the Pith and Substance of the Law
o Two aspects of the law must be examined: the purpose of the enacting body,
and the legal effect of the law
o Pith and Substance of Firearms Act= Public safety
o Legal effects of the law involves considering how the law will operate and how it
will affect Canadians
o Another way to determine the purpose of legislation is to look at the problems it
is intended to address so called “mischief” approaches
Illegal trade in guns, link between guns an d violent crimes, suicide and
accidental deaths are examples of mischief
Appeal dismissed – firearms act do not infringe on jurisdiction – federal win
Case #2: Morgentaler, Smoling and Scott
Background: Three accused, all doctors working in clinic that provided abortion services
Main issue: did section 251 infringe on section 7 life liberty and security?
Judgement: SCC said section 251 (now s287) was invalid and of no effect because it
infringed on section 7 of the Charter
Case #3: Malmo-Levine // Caine
Background: Malmo-Levine - police entered the premises of the Harm Reduction Club
and seized 316 grams of marijuana -- Charged with the possession of marijuana for the
purpose of trafficking – convicted
Caine – used marijuana for his own purpose of enjoyment (0.5 grams) -- charged with
possession of marijuana
Main issue: is prohibitation unconstitutional? violate section 7 or section 15? Is it a valid
exercise of federal criminal law powers?
Judgement: Courts upheld conviction and said was not unconstitutional
Case #4: Ferguson
Background: Ferguson was convicted of manslaughter
Section 236(a) said using firearms, impose mandatory minimum 4 years Trial judge did not impose minimum, gave conditional sentence, said sentence was too
cruel for this case, and thus violate section 12 of charter - Granted Ferguson a
constitutional exemption (individual remedy)
Main issue: Is this minimum sentence too cruel? If it is, can a trial judge grant exemption?
Under what circumstances is this okay?
Judgement: Appeal court set aside the sentence and gave minimum sentence –
exemptions should not be given as remedy for cruel punishment imposed by a law, if it
really is cruel, the law can be declared of no effect – cannot undermine the rule of law
CASES CH 2
Case #5 Chase
Background: Chase entered the home of the complainant, grabbed her breast
Main issue: How should ‘sexual’ be defined?
Judgement :Trial judge said not sexual assault because did not touch ‘private parts’
Appeal to SCC, SCC said is sexual assault, yes guilty
Sexual assault occurs when application of force happens in circumstances of a sexual
nature, such that the sexual integrity of the victim is violated.
Case #6 Toews
Background: Was impaired, sleeping in a sleeping bag in his car parked, on private
property 5am, key was in the ignition and the stereo was playing loudly, a friend drove
him to the destination, no intention of driving
Main issue: Was he in ‘care or control’ of section 253?
Judgement: Appeal court said not guilty, he had no actus reus – Presumption of Care
and Control – when found in driver’s seat, not automatically convicted, onus on accused
to prove he did not have any intention of driving vehicle (sleeping bag support
statement that he was merely using the vehicle as a place to sleep)
Case # 7 Cooper 1993
Background: Cooper convicted of murder of Careen, Was having consensual sex, they
started arguing, he hit her head and grabbed her by throat and shook her (at front seat),
then he recall nothing and woke up in back seat, finds her dead
Main issue: Did mens rea and actus reus coincide? Accused said he did not have murder
intent because he “blacked out” before her death occurred.
Judgement: SCC said still guilty, because when he committed a series of acts that
resulted in her death, these acts are considered as being “all part of the same
transaction”, if necessary MR coincide at any time with one of these acts, the accused
is guilty. CASES CH 3
Case #8 Smithers 1977
Background: Smithers kicked Cobby (after hockey) in the stomach and Cobby fell to floor
groaning, died from aspiration of foreign materials present from vomiting. Cobby had a
genetic defect, his internal organs didn’t stop vomit from going to airway, he choked
and died. A normal person would not die from the kick. Accused argued kick did not
cause the death, it was the medical condition.
Main issue: What is the appropriate test of causation in a case involving a charge of
manslaughter? The principle issue was whether the appellant had committed homicide
by directly and indirectly, by any means causing death
Judgement: Established the rule of causation that applies to all homicide offences –
o “Smithers test of causation” = accused’s conduct must be a contributing cause,
“outside the de minimis range” = must have had more than a minimal impact.
Smithers was convicted of manslaughter at his trial. Appeals all dismissed.
Case #9 Harbottle 1993
Background: Harbottle and his friend forcibly confined Elaine Brown. Ross strangled her
while Harbottle held her legs to prevent her from struggling.
o Harbottle gave Ross his knife which Ross used to cut off Elaine Brown’s clothes,
then he watched his friend rape her and perpetrated the most cruel and
demeaning acts upon her
o Sexual Assault, bodily harm with weapons, aggravating sexual assault, and
Main issue: What is the appropriate test of causation when charged with 1 degree
murder (s.231)? Question was Harbottle’s participation enough to be found guilty of
first degree murder?
Judgement: Courts made more restrictive test of causation for first-degree murder
accused’s action must form a substantial and integral part of the killing of the victim
In the end, the case facts pointed that Harbottle was a substantial and an integral cause
of the death of Elaine
o Guilty for Participation, no intervening the act, crimes of domination and murder
are under the same transaction, enumerated offence (forcible confinement)
Convicted of first degree murder, appeals all dismissed
Case #10 Nette 2001
Background: 95 year old women was robbed by Nette, hogtied and she died due to
being hogtied on her bed which resulted in her falling off her bed
Main issue: Is Smithers test still applicable when charged with 2 degree murder?
Judgement: SCC reaffirmed Smithers’ test of causation and ruled that it applied to all
homicides offences other than specific types of first degree murder
o Re-worded test so easier to understand = “Significant contributing cause”
rather than using expressions phrased in the negative such as not a trivial cause
or not insignificant SCC clarified its decision between Smithers and Harbottle
o Harbottle decision had not changed the factual test of causation in homicide but
had rather imposed an increased degree of legal causation in order to reflect
the high degree of blameworthiness of an accused person who commits 1
Convicted of 2 degree, appeals all dismissed
Case #11 Rodriguez
Background: Suffers from amyotrpoic lateral sclerosis (lost motor control, but not
mental), wants someone to help her assist in suicide
Main issue: Rodriguez argued Section 241(b) prohibiting assistant in suicide – infringes
s7 and s.