FOUNDATIONS OF LAW CAN
• Facts (as found by finder of fact) + law (as found by trial judge) verdict or judgment
• Examines trial judgment
Appeal examines Findings of Fact Application of Law Outcome onAppeal
trial judgment - Trial finder of fact- No deference - Uphold (appeal
receives deference (exceptions) dismissed)
- Reverse (appeal
• Trial courts where facts are created, appellate courts are where law is created
• Judgment authored by court with majority and dissent OR unanimous.
o Judgment – decision of the court (Canada)
o Appellate usually 3 judges, SCC usually 9
o Dissent sometimes articulates another way of looking at the case – disagrees with the
majority. The dissent, a lot of times, will explain what happened in the case.Alot of
dissents eventually become the majority.
Usually dissent much clearer and better written decision
• Sometimes (most), the Justices sign their names, and sometimes (few), it is signed Per Curiam
(By the Court)
• Case becomes precedent with the facts as stated in the case only relevant facts for future parties.
• Law may be changed, affirmed, extended, retracted or overturned, etc.
o Appeal judge can keep the law as it is
o Sometimes may change the law – by extending application, entrenching application, or
completely changing it
o Once case comes out it is binding on all courts below it in that jurisdiction (but may be
persuasive for other jurisdictions)
o Persuasive inAlberta – House of Lords (England), US
• The case is binding on all lower courts in that jurisdiction.
• The case may be persuasive for all other jurisdictions.
• Appeal case becomes the law on the question raised in that appeal Page 2
• The law may be made by the judges or made by the legislature (provincial or federal or other)
o Ratio – relevant to the case
o Dicta – irrelevant to the case
• Case law or statutory law
o Over time, built up a body of cases come to us that tell us what the law is
o Legislature can pass laws statutory laws (e.g. Criminal Code of Canada)
• Courts interpret statutes – the case becomes precedent and part of the law
o Courts interpret a statute (say “this is what this word means”)
• Next case at trial must apply the law as in the case, if the facts are similar
• How do we know if they are similar?
o Analogies and distinctions
• Next appeal will either say the facts are similar or not (and if not, what law to apply)
Case 1 Case 2 Case 3
Rule 1 Rule 1, or new Rule 2 Rule 1, 2, or new 3
• No one can tell you the law, they can predict with reasonable certainty, but it can always
The Common Law
• Statutes, Judge-made Cases, Cases Interpreting Statutes and Previous Cases
• English system of judge-made law
o Over time those judgments became the common law of the people
o Common – came from the people, not written by anybody
• System of legal reasoning
• Supremacy of precedents (that can be overturned by new precedent, statute, or both)
• Sometimes refers to older days of the law
o When? Long time ago – the good old days
o Before Parliament or Legislature started codifying something
• Important to:
o Learn how to read cases Page 3
Spend time interrogating cases
Have to read it with an exacting eye
o Learn how to interpret statues
o Learn how to read cases interpreting statues
o Know how courts think to predict outcomes of new cases
The Civil Law
• Civil Law: privacy of the Code
• Europe (not UK) plus Quebec (and Louisiana?)
• Other systems: mix of common law and civil law
• Shariah law, traditional aboriginal law (in Canada and elsewhere), mixtures of all of the above
Common Law Civil Law
Judge-made law based on precedent Codified system of laws
Uses analogical reasoning from statutory Legislation is the primary source of
Adversarial in nature Judge is both the decider of fact and
Example: No PetsAllowed
• No pets allowed (statute)
• No pets allowed, except small ones that fit in cups (accepted by the courts)
An Introduction to Legal Reasoning, Levi
I. Legal reasoning
• Basic pattern of legal reasoning is reasoning by example
o Three-step process, described by precedent:
1. Similarity is seen between cases
2. Rule inherent in the first case is announced
3. Rule of law made applicable to second case
• Finding of similarity or difference is the key step in the legal process. The determination of
similarity or difference is the function of each judge.
• The kind of reasoning involved in the legal process is one in which the classification changes as
the classification is made. Rules arise out of a process, which, while comparing fact situations,
creates the rules and then applies them.
• Laws are molded for the specific case
• Reasoning by example shows the decisive role, which the common ideas of the society and the
distinctions made by experts can have in shaping the law. It brings into focus important similarity
and difference in the interpretation of case law, statutes, and the constitution of a nation.
II. Concepts move into and out of the law:
1. Creation of the legal concept, which is built up where cases are compared
o The court fumbles for a phrase and several phrases are tried out.
2. The concept then becomes more or less fixed Page 4
3. Breakdown of the concept
• The movement of legal concepts in case law has been shown by pointing to the breakdown of the
“inherently dangerous” rule. MacPherson v Buick Motor Co shows this.
• The problem became: the potential liability of a seller of an article that causes injury to a person
who did not buy the article from the seller.
Inherently dangerous vs. imminently dangerous
Section 1 Cases
Dixon v Bell, 1816
• Gun owner sends 12-year-old servant to fetch a loaded gun and instructs her to remove priming. P
removed priming but not gunpowder. Girl pretends to shoot a boy and it discharges, hitting the
son of P. Boy lost an eye and two teeth. P recovers damages:
• Action on the case (cause of action that arises NOT out of property) is a legal method of seeking
recovery. At common law one needed the right form to sue.
• Case of negligence.
• “Young mulatto girl” is used for social context.
• Brought a motion to show cause for the verdict to be set aside.
• Trial: verdict for P (D is negligent)
Holding (Ellenborough, CJ): strict liability (100% liable no matter what)
• Presumes that a loaded gun is dangerous, and notes the duty “the law requires of persons having
in their custody instruments of danger, that they should keep them with the utmost care”
Ratio: a defendant who entrusts a 12-year-old individual with a gun, loaded or otherwise, is liable for the
loss of services of a servant when the 12-year-old shoots a servant in the face.
Charge to the Jury
• Instructions to the jury – on the law
• Jury finds the fact and applies the law (from the judge) to the facts
• (Learn the law by reading the charge to the jury)
• Sometimes juries give specifics of decision
• Findings of fact – trial judge cannot change
o Creation of the facts presented at trial always in the hands of the lawyer
• Most judges are relying on the lawyer to submit the law
• Lawyers create the law in the case and the facts
• Ratio – rule of the case
• Obiter – whatever else Page 5
• Ratio, to Yahya, is the narrowest holding of the case
• Reasoning – part of the ratio
• If guilty criminally (beyond a reasonable doubt), then guilty in tort (balance of probabilities)
• Pleading in the alternative is allowed (e.g. we didn’t have a bar fight but if we did he started it
and it was just a flesh wound)
Langridge v Levy, 1837
• Exchequer of Pleas (court of equity – today the federal court).
• P’s dad bought a gun to use for his son (P) and himself
• D, Levy, sold the gun and said it was of a certain quality
• P used the gun and it blew his hand off. Father brought suit in name of son
• D pleas not guilty (negligence) and D did not warrant the gun to be made by Nock (contract)
• Trial (Alderson, B): general verdict for P
Holding (Park, B): for P (damages for tort of fraud)
• Narrowing the scope of the rule (entrenching it)
• Not being bought into reasoning in the rule in Dixon
• D argument: contract – when D sold the defective gun, a mere sale does not mean D is liable for
everything that happens to it
• P argument: tort – dangerous good, put out there – broad interpretation of Dixon v Bell. If you put
anything dangerous out there, whoever you injure, you’re liable. D says no warranty, therefore no
• Show cause – to prove why D should have won (bottom of p 864)
o P is going first (because of procedure type)
• Dixon v Bell was one of the first cases of the time – no case law cited. Does P get to recover from
D for the acts of the servant? Twenty years later comes Langridge with similar facts – gun
involved, third party is injured (usually always a difference – as a lawyer, pounce on the
• Judge tries to find fact patterns that match the fact patterns in the current case (the fact pattern in
Dixon v Bell is only similar in that the cases involve the same object, and that negligence was
involved in both cases)
• Court is not ready to allow P to win under strict liability
o Parke, B is a very careful judge
• Remember:Arguments from lawyers and principles and decisions from judges are created based a
lot on the interpretation of previous cases, the interpretation of the case at hand, and what
consequences a specific decision would have on future cases.
Ratio: If you lie about something and sell it, specifically a gun, you are liable in tort and fraud for
whomever you should have contemplated should use the object. Page 6
*Read the reasoning, but you will get much more if you look closely at the facts and start developing a
pattern. In addition to reading the language (ratio, dicta, etc.) look at the factual aspects. When reading
the outcome of a case where there is a factual determination, construe the facts in the light most
favourable to the winning party.
• General verdict – opposite: special verdict (1 charge? 2? 3?). Here there are more grounds for
appeal, if you were guilty on one or all charges.
o Can make a motion to request a special verdict – only use it if you think there is such fine
Winterbottom v Wright, 1842
• NathanielAtkinson, contractor for hire with the Postmaster-General, provides a mail-coach to
Wright, D. Postmaster-General buys carriages from D
• Mail-coach is to be in a fit, proper, safe and secure state.
• Winterbottom, P, is a mail coachman (P)
• Mail-coach breaks down and P is thrown from seat and injured.
o Wheel fell off mail-coach
• P sues D for defective carriage
Holding (Alderson, B): For D (no liability)
• Privity to contract
• Unlike in Levy v Langridge, there is no allegation that D knew the coach was to be driven by P
• Retrenchment in the law, guns are dangerous but carriages are not
• D’s argument could be: even if D gave a warranty, in Levy P won because of fraud, not because of
warranty. Gun salesman knew it wasn’t made by the gun maker he claimed it was. There is no gun
in this case (where there was in Dixon and in Langridge)
• Cant sue Crown (Postmaster General) – King can do no wrong
Ratio: On the basis of privity of contract, a party cannot sue another party in negligence, from an injury of
a non-inherently dangerous item (a mail-coach), if there is no direct contract.
Longmeid v Holliday, 1851
• Holliday made and sold a lamp to P (husband). For use for both Ps.
• D had lamp patented and warranted lamp was reasonably fit and proper
• P (wife) attempted to use lamp and it exploded and injured her. Greatly burned, scorched, and Page 7
• Trial (Martin B): Not guilty of fraud. D sold the lamp but no evidence D knew of defect. Jury
found all fact for Ps, except fraud.
Holding (Parke, B): no liability. Rule absolute. P (wife) cannot sue and join herself with her husband. D
prevails. Special verdict delivered.
• P argued it’s not an action for breach of a duty arising solely from contract, but for an injury
resulting from conduct amounting to fraud.Although D not aware of defect, he is equally
responsible if he represented it to be for that purpose.Argument didn’t work.
• P argued Langridge v Levy – D sold father of P a gun for use of himself and sons, with warranty,
gun exploded, P might recover. Where damages results from a fraudulent representation, the party
guilty of the fraud is responsible to the party injured.Argument didn’t work
• Winterbottom v Wright – may be relied on by other side, but case distinguishable because P was
no party to the contract, and no breach of duty towards him
Ratio: Aseller of an article, specifically a lamp, by a tradesman for the use of a third party, is not, in the
absence of fraud, liable for injury caused to a third person by some defect in the construction of the
Cases So Far
• Dixon – dangerous stuff, negligence. Liable
• Langridge – fraud, no privity. Liable
• Winterbottom – no fraud, no privity. Not liable
• Longmeid – no fraud, no privity. Not liable
• See how the legal reasoning and common law practice is working. Sometimes courts follow the
language, sometimes they don’t. There is a factual pattern informing how the cases are going.
Why are they coming up with the result they are coming up with?
• Guns, liability. Carriage is dangerous but not inherently designed to be dangerous.
• Winchester: negligence, no privity. Liable.
Thomas v Winchester, 1852 NYCA
• P sustained injuries from extract of poisonous plant thinking it was extract of medicinal plant.
Extract was made, labeled improperly
o Sold by D X, sold Y, sold Z, sold P for use.
Issue: Whether D, being a remote vendor of the medicine, and there being no privity or connection
between him and Ps, the action can be maintained.
Holding (Ruggles, CJ): judgment affirmed – liability Page 8
• Judge rejects remote liability using Winterbottom, refers to Longmeid in distinguishing
“imminently dangerous” from not so.
• The sale of the poisonous article was made to a dealer in drugs, and not to a consumer. The injury
therefore was not likely to fall on him, or on his vendee who was also a dealer; but much more
likely to be visited on a remote purchaser, as actually happened
• D’s duty arose out of the nature of his business and the danger to others incident to its
• Judge: “The owner of a loaded gun who puts it into the hands of a child by whose indiscretion it is
discharged, is liable for the damage occasioned by the discharge” (Dixon). Lawyers also cite
• Aproducer or labeller who misrepresents an inherently dangerous good and puts it in the
marketplace for use will be held liable for injuries sustained due to the duty of care owed to the
public to minimize dangerous arising out of the inherently dangerous good.
• A D who misrepresents an inherently dangerous good is held liable for negligence, despite P not
being privy to the contract if the injury can be reasonably foreseen.
George v Skivington, 1869
• D sold P shampoo compound made with secret ingredients that D only knew of. P’s wife used
shampoo and was injured.
Issue: Should a D be held liable if he sells a product with secret ingredients and it injures a third party?
Holding: For P
• D’s duty of care extended to P’s wife as D contemplated that she would be using the item, thus
considered privy to K.
• Like Langdridge, knew K was for wife.
Ratio: Aseller and producer will be held liable in negligence to a third party if he misrepresents an item,
specifically shampoo, to be fit for use and is aware of the third party and the intended use.
Loop v Litchfield, 1870 NYCA
• D sold partly defective flywheel to X who knowingly used it defectively for five years. P used
once and was killed through a malfunction of the flywheel.
Issue: should the flywheel of a machine instrument be construed as inherently dangerous?
Holding: no liability.
• Wheel is not inherently dangerous and Thomas v Winchester does not apply.
• Flywheel bursting and injury was not natural result or expected consequence of manufacturer and
sale of the wheel
Ratio: a D who sells a defective, non-inherently dangerous component to be used in a greater machine and
informs P of the defect, will not be found liable if P or a third party is injured.
Loosee v Clute, 1873 NY
Facts Page 9
• D manufactured and sold boiler to X. X used boiler for three months, was satisfied. Later, boiler
exploded & injured P’s property.
Issue: Did D negligently manufacture a boiler? Did D breach a duty of care when it exploded?
Holding: for D, no liability.
• When boiler was accepted after three months test D ceased to have further responsibility, as there
was no more control over its management.
Ratio: a seller of a non-inherently dangerous item, specifically a boiler, will not be held liable for damages
occurring to the buyer if that item malfunctions after a period of time outside of the seller’s control or
Devlin v Smith, 1882 NY
• P painter working for D. Stevenson scaffold-builder who contracted with D. Scaffold fell, harmed
• Trial: dismissed
• CA: upheld. New trial against Stevenson ordered
Holding: P prevails
• Distinguished from Thomas v Winchester upon the authority of Loop v Litchfield
• Liability to third parties has been held to exist when the defect is such as to render the article in
itself imminently dangerous
• Judge distinguishes “not in itself a dangerous instrument” (Loop v Litchfield), which is the
authority for distinguishing Losee v Clute from Thomas v Winchester. Judge cites Thomas for
“when the defect is such as to render the article in itself imminently dangerous” and invokes “the
duty which the law imposes on every one to avoid acts in their nature dangerous to the lives of
Ratio: a seller of a not inherently dangerous item, specifically scaffold, will be held liable for damages
occurring to the buyer or to a third party if that item was made negligently, and therefore becomes
Case, Object, Liable
Case Object Liable?
Dixon v Bell Discharge of gun Liability
Langridge v Levy Exploding gun Liability
Winterbottom v Wright Mail-coach No liability
Longmeid v Holliday Exploding lamp No liability
Thomas v Winchester Poison, not medicine Liability
George v Skivington Hair dye / shampoo Liability Page 10
Loop v Litchfield Balance wheel No liability
Losee v Clute Boiler No liability
Devlin v Smith Scaffolding Liability
• Old cases: no recovery if no privity unless dangerous good
o Guns, poison, shampoo/dye, scaffold
• Not dangerous:
o Carriage, lamps, wheel for saw, boiler
• What is the problem with the old rule?
o Getting harder and harder to keep straight
o MacPherson overrides Winterbottom
MacPherson v Buick Motor Co (1916), 217 NY 382
• D sold automobile to retail dealer, who resold to P. While P in car, car collapsed and P was
• One of the wheels made of defective wood. D did not inspect wheels.
• Charge for negligence, not fraud (did not know of defect)
Holding (Cardozo, J): affirmed.
• Casting back cases, saying there was a clear rule, not going to change the rule, but the rule was
• Overrules Winterbottom, creates a new rule by arguing it’s still within the rule. We know the rule
sticks if in the next case, no matter how dangerous or undangerous the good, if it’s a liability case
and they cite MacPherson, it’s a new rule. Old rule was hard to predict. New rule is an easy rule –
you’re all responsible. Privity argument no longer there.
• The obligation to inspect must vary with the nature of the thing to be inspected. The more
probable the danger, the greater the need of caution.
• If the thing is such that it is (1) reasonably certain (probable) it could be negligently made, then it
is a thing of danger, (2) if it will be used by others and (3) will not be it tested, the manufacturer
is under a duty to make it carefully or he will be liable for negligence.
• Dissent (Bartlett, CJ): reversal of judgment
o Cardozo, J is changing the law (but Cardozo never makes that claim).
Goals of This Section
• What is holding?
• Facts + outcome
• One basic rule of common law is: like facts are treated similarly
• Ratio if you can figure it out (one case at a time)
• Does next case overrule, extend, retract/retrench from, affirm older case? Page 11
• Can look at ratio OR facts + outcome to understand when case is overruling prior case.
• Look at how the courts decide something based on analogy and distinction.
o Common law method, common law reasoning, analogies and distinctions, process of a
court, who’s trying the case?
Introduction to Legal Reasoning, Levi
• Case law reasoning is inductive, application of statutes is deductive
• In the application of a statute the intent of the legislature seems important
o Intent is found out by the rules of constructions, but it is not easy.
• The interpretation of the meaning of statutes is exclusively a judicial function
o Adanger in this because the courts’conclusions may be influenced by the judges’own
views or factors not considered by the enacting body
• Important difference between the words used by the legislature and in case law:
o Case law: conscious realignment of cases. The problem is not the intention of the prior
o Statute: reference is to the kind of things intended by the legislature. What the legislature
intended is ambiguous.
• The MannAct or the “White Slave TrafficAct” went into effect on June 25, 1910
o Passed during a period when largeAmerican cities had illegal but segregated “red-light”
areas. Women were transported in from other countries for prostitution.
• 3 key phrases; “prostitution,” “debauchery,” and “for an other immoral purpose.” By 1913,
prostitution and debauchery had been applied by the Supreme Court.
• 1913 Hokes v US
o Raised constitutionality of the Act
o Construction emphasized the involuntary nature of the woman’s conduct, the system
involving organized traffic, and the belief that many of the women were minors.
• 1913 Athanasaw v US
o Upheld the application the Act through debauchery
• 1915 US v Holte
o Although woman not the victim transported, she could still be guilty of conspiracy to
commit the crime
• 1917 Caminetti cases
o Transportation of women for the purpose of paid cohabitation or for the purpose of
having them become mistress and concubine, but it did not involve commercialized and
o Supreme Court applied the phrase “for any other immoral purpose” – organized traffic
did not have to be involved
o Set theAct to include more than white slavery, but also all acts commonly through to be
o Easy to argue that at the halfway point of the trip, when the journey back began, the girls
were being transported to Grand Island for immoral purpose.Also easy to argue, from the
other side, that “the sole purpose of the journey… was to provide innocent recreation”.
o Majority: purpose of the trip was innocent. Page 12
Section 2 Cases
MacMillan v Brownlee, 1935,Alberta
• Brownlee hired MacMillan, 18, coerced her into having sex with him while he was married and
• MacMillan and her father sued Brownlee. Cause of action in tort, tort of seduction under the
• Case about how to interpret statute (Seduction Act)
• Trial, Ives J overturns jury’s verdict
o Buddies helping out buddies (Brownlee)
• CA: uphold setting aside jury verdict
o More of Brownlee’s friends
• SCC: overturned CA
o Trier of fact made factual determinations, so stick with that. Only overturn verdict if it’s
o Not friends of the Premier
Holding (JCPC): jury trial sacred
• If its her own right, there’s no evidence of harm accepted the jury's finding of fact and, echoing
Justice Clarke, concluded that the framers of the Alberta SeductionAct had not intended that
damage to a seductee be required to be the same as those to her father or employer (i.e. financial)
in order to be actionable
• Alot is statute based, cases are the ultimate arbiter of what the statute means
• Very different than the civil law system (everyone but English speaking world)
o Legislation supreme, courts interpret it, but their interpretation might not be the
interpretation for the next court. E.g. Quebec.
• SCC, when adjudicating arising out of the Civil Code of Quebec, is technically not the final
arbiter on what that means. But a lower court would always follow.
• System in Canada is a hybrid. Even the Quebec civilian system gets molded into common law.
• Where does legislation come from? Pure common law comes from the courts. The source of the
law is the legislature, being either Parliament (Ottawa) or provincial (each provincial capital). Page 13
• Canada has two houses: House of Commons and the Senate. One body is elected, one body is
• Her Majesty the Queen or her Representative (Canada GG, Provinces Lieutenant Governor) must
• Two types:
o Public – matters of public policy. Public bills apply to everyone. Two types:
Government: introduced and sponsored by a Minister
Private Member: introduced by an MP (government or opposition)
• Comes from non cabinet MP, e.g. party back benchers
• Sponsored by a private Member
o Private – matters of particular interest or benefit to a person or persons.
They are usually meant to exempt an individual or class of them from an
application of the law.
• Abill goes through steps to become enshrined in law:
1. Once the appropriate notice is given, a member is given leave of the House to introduce
2. The bill is read a first time and printed
Follows immediately and is also automatically adopted without debate,
amendment, or question
3. The bill is read a second time
The principle f the bill is debated and accepted or rejected
No amendments may be made to the bill itself at this stage
4. The bill is referred to committee
Amendments are considered
5. The bill is considered in committee and reported back to the House
Members, particularly those who were not on the committee, may propose
6. The House concurs the bill at the report state
7. The bill is read a third time and passed by the House
May pass or refer back to committee
8. The bill goes through stages in the Senate, approximately the same as those in the House
9. Finally, the bill receives Royal Assent
Bill comes into force on the day ofAssent, unless specified in the bill
If the bill isn’t signed, it’s not enacted
Statute vs. Regulation
• Statute – passed by legislature
• Regulation – passed by order in council
o “In council” – cabinet (passes regulation). Technically signed by the Lieutenant Governor
– “orders in council”. They derive their legitimacy from theAct
o Legislation regulation rules (put out by agency doing the enforcement)
• Act will tell you there is the possibility of Regulation
o Regulations happen after it’s passed in the Legislature Page 14
• Who administers theAct?
o Department or anAgency
• King Henry VII clauses – Parliament would pass laws and he would say the King could change
this whenever he wants – sometimes Regulations nullify anAct
o Common law disproving these clauses is dicta
• Different versions of statutes – need to know the law when the event took place. Sometimes when
the legislature changes a word from one to another, you can use that to interpret the current
meaning of the language. You could argue that since the legislation changed it, this is really what
they mean now.
• Today the MannAct has changed
o “Debauchery and immoral purpose” gone
• “Transports in interstate or foreign commerce, or in the District of Columbia or in any Territory
or Possession of the United States”
o Crossing state lines
o Constitutional jurisdiction of Congress – jurisdictional hook – gives limits of where the
o In Canada, there is still a division of government (provincial & federal)
• “In error” – “on appeal”
• 227 US 308 – official US reporter
• Justice McKenna
Hoke v US, (1913) SC US
• Ds charged with violating the White Slave Act
• On November 14, 1910 D Hoke persuaded, induced, or enticedAnnette and a woman under 18 to
go from New Orleans to Beaumont for the purpose of prostitution. D Economides aided and
assisted D Hoke to persuadeAnnette and a woman under 18 for prostitution.
• Objections overruled. Trial: Ds were convicted and sentenced, each to 2 years’imprisonment on
Issues: the power of Congress under the commerce clause of the Constitution
Holding (McKenna J): affirmed. Ds convicted.
• S 3(d), anyone “who shall thereby knowingly cause, or aid or assist in causing, such woman… to
go… interstate or foreign commerce, or any territory or the District of Columbia,” shall be
punished in the 1st section. Page 15
• S 4 persuasion, inducement, and enticement of a woman under 18. The person guilty shall be
deemed guilty of a felony, punishment may be a fine of $10,000 or imprisonment for 10 years, or
Ratio: Though Congress could not regulate prostitution per se, as that was strictly under the power of the
states; it could regulate interstate travel for purposes of prostitution or “immoral purposes”. The Act is
Athanasaw v US, (1913) SC US
• Indictment for violating the White Slave Act, 1910
• Agnes saw ad inAtlanta for chorus girls and applied. Theatre operated by Ds. Ds providedAgnes
with a railroad ticket.
• DAthanasaw came to her room and said to be his girl. He told her he was coming to her room to
sleep with her and he kissed and caressed her.
• Ds transported or caused to be transported, or aided in the transportation of Agnes Couch, 17
years, fromAtlanta to Tampa, for the purpose of debauchery. Crime charged against ss 2 and 3 of
theAct in 39 counts. Demurrer (objection) filed to indictment, alleging unconstitutionality of the
Act and that indictment was insufficient.
• Trial: Demurrer overruled, Ds convicted, DAthanasaw sentenced to imprisonment.
Issues: Did Ds intend to induce, entice or influence Agnes to give herself up to debauchery at the time of
furnishing the transportation?
Holding (McKenna): affirmed. Ds convicted.
• Ds argument – indefinite liability. Every female dance show becomes debauchery
• Instructions of the court: term ‘debauchery’here. Would the employment eventually, necessarily,
and naturally lead to a course of immorality sexually?
o Justified by statute – court interpreted broadly
• Jury grantedAgnes’testimony to be true. Therefore the employment to which she was enticed was
an efficient school of debauchery of the special immorality, which Ds contend the statute was
designed to cover.
Ratio: One does not have to be transported for the purpose of prostitution, but also where employment can
eventually lead to the course of immoral sexuality or debauchery.
US v Holte, (1915) US SC
• Review a judgment sustaining a demurrer to an indictment of a woman for conspiring to cause
her own transportation in interstate commerce for purposes of prostitution
• Laudenschleger should cause D (woman) to be transported from Illinois to Wisconsin for the
purposes of prostitution, contrary to the White Slave Traffic Act, 1910
• District court: demurrer – although offense could not be committed without D, she was no party
to it, but only the victim
Issue: Is the District Court’s ruling correct? Is it impossible for the transported woman to be guilty of a
crime in conspiring as alleged?
Holding (Holmes J): reversed. Ds convicted. Page 16
• Act, “whoever knowingly transports”
• D’s argument – she did not transport herself.
• Purpose of the act is to stop prostitution. Too far to say D not guilty
o Words of the statute punish the transportation of a woman for the purpose of prostitution
even if she were to first suggest the crime
Ratio: One can be guilty under the MannAct if she aids in transporting herself for the purpose of
• Lamar (dissenting): Congress has no power to punish immorality and intended to legislate to
prohibit the traffic of women and their interstate transportation in such vicious business. They
were ‘literally slaves’, where traffickers made large profits. The title, ‘white slave traffic act’,
either applies to women who are willingly transported or it does not. If she willingly went, there
was no offense by the man who transported her or the women who voluntarily went, and therefor
there was no conspiracy against the laws of the US.
Mortensen v US, 1944
• Ds charged in two counts with violating Mann Act. Operated a house of prostitution in Nebraska.
Went on a car trip to Utah and two employee prostitutes came with. No acts of prostitution during
the trip. Jury found transportation from Utah to Nebraska was for the purpose of prostitution and
• Trial: conviction by jury
• CA: convictions affirmed
Issue: was there any evidence from which the jury could rightly find that Ds transported the girls from
Utah to Nebraska for an immoral purpose in violation of the MannAct?
Holding (Murphy J): reversed. Ds not convicted.
• The word “purpose”. “Purpose” of leaving was vacation. “Purpose” of return was going home. In
Holte, with an expansive view, they had gone too far. Retreating. Court can overturn themselves.
• There was a complete lack of relevant evidence from which the jury could properly find or infer,
beyond a reasonable doubt, that Ds transported the girls in interstate commerce ‘for the purpose
of prostitution or debauchery’within the meaning of the MannAct.
• The trip was not taken for the purpose of resuming activities of prostitution.
• Congress was attempting primarily to eliminate the ‘white slave’business, which was not the
situation revealed by the facts of this case.
Ratio: if the purpose of the interstate transportation is not for prostitution or debauchery, one cannot be
charged under the Mann Act.
• Dissent (Stone J): affirm judgment
o Matters for Congress to determine, not the courts.
US v Beach, (1945) US SC
• R transported another woman in Washington, DC for the purpose of prostitution, in violation of
the Mann Act Page 17
• R operated a dress shop in Washington, DC and employed a girl as an assistant. Girl lived with R
at R’s apartment. R suggested to girl she could earn more money ‘selling herself’. Girl finally
agreed to work for R as prostitute. They took a cab somewhere – “transport”?
• Trial: R indicted and convicted
• CA: conviction set aside. MannAct inapplicable to transportation taking place wholly within a
Issue: Is the MannAct applicable to transportation taking place within DC?
• “Any territory or in the District of Columbia”
o Purposive, expansive view, to narrow the reading of the text of the statute
• R’s argument: decisions regulate interstate
Ratio: If one transports another within DC for the purpose of prostitution, one can be charged under the
Cleveland v US, (1946) US SC
• Mormons, Fundamentalists. Practice polygamy. Each transported at least one wife across state
lines either for cohabiting with her, or for aiding another member of the cult in such a project. Ds
convicted of violating Mann Act. Ds bring certiorari – asserted conflict between the decision and
Mortensen v US.
• Trial: Ds convicted
• Appeal: conviction affirmed.
Issue: is polygamy “immoral”?
Holding (Douglas J): affirmed.
• “For any immoral purpose”
• US v Bitty prosecuted under a federal statue making it a crime to import an alien woman for the
purpose of prostitution or any other immoral purpose – man imported woman to live with him as
a concubine. Two years later Mann Act passed – ‘immoral purpose’within the meaning of the
Ratio: polygamy is immoral and one transporting a woman for the purpose of polygamy can be charged
under the MannAct.
• Legislation passed by Parliament or Provincial legislature.
• Must pass both houses of Parliament (HOC and Senate) or (just one house) legislature, and then
signed by the Queen (or her representative: Governor General or Lieutenant Governor).
• Statute is binding law that is interpreted by courts.
• Sometimes legislation allows cabinet (called Lieutenant Governor in Council or Governor
General in Council) to pass Regulations that augment the Statute.
o Never see the word Cabinet, but LG in Council, GG in Council Page 18
• “Henry VIII clauses”?
o Completely undue the statute by regulations. Constitutionality? Never formally
• Regulations are passed by Order in Council
o LG in Council, GG in Council
o Judicial appointments
• Sometimes legislation creates an agency that administers the legislation – can pass rules.
• Typically, the Ministry charged with the statute proposes regulations, which the Minister brings to
o Regulations usually administrative, mechanical
• Amending legislation done by legislature
• Regulations amended by cabinet
• Rules amended by agency
• Expansive or narrow
o Expansive – breaking out, not constrained by text
• Purposive approach (expansive)
• Canons of construction or statutory interpretation
Public Law: Chapter 2
• Law is what the law is
• Morality separate from the law
• Certain rights, the state doesn’t have a right to go there
• Lawyer’s lawyer: Ajudge who explains things plainly and in terms of the law without extra
Re Drummond Wren,  OR 778 (HC)
• Drummond brought forward an action to have a restrictive covenant placed on a parcel of land he
owned to be declared invalid. The covenant prohibited the land to be sold to Jews or persons of
objectionable nationality. Page 19
• Are these covenants around today?
o Illegal, but around
o When a covenant is struck down it sits there until Parliament does something
Re Noble and Wolf
• Covenant that the lands shall not be sold/transferred to “Jewish, Hebrew, Semitic, Negro or
coloured” people. Wolf interested in purchasing cottage and wanted the covenant thrown out
(relying on precedent from Re Drummond Wren).
• Current property owners defended covenant on the grounds that cottage value would be lost if
any change occurred
• Courts ruled to keep the covenant (SCC tossed covenant but on technical grounds)
• Public policy is too vague/uncertain
• Judges should interpret laws only, not speculate what is best for community
• Decision made despite judges personal opinions of what law ought to be (morality)
• Aspirational… laws are not just official rules/principles that govern us, but only those that adhere
to certain moral truths…
• Based on the theory that law arises from “nature” or by beliefs accepted by people (used to be
from religion but changed)
• For a law to be a law, the law must comport with the values accepted by society
Lochner v People of State of New York, (1905) 198 US 45
• State of NY – minimum wage and maximum hours
• SC US struck it down under liberty of contract (Charter value)
• Is the judge framing the decision as positive or natural? Positive.
Edwards v AG Canada
• Police magistrate. Went to watch prostitution trial and kicked out (not for her ears). Then how is
the woman being tried in this case? Wrote to government, appointed as first female judge to try
• Famous for: living tree
o Constitution open to ongoing interpretation
• No real litigants, government asks whether law is constitutional or not
• Provincial government asks CAand federal government asks SCC
• US does not have this power, SC US cannot answer
• Americans have to find someone to apply to law to and go through to court system to the