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WDW225 Exam Booklet - Precedents

25 Pages
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Department
Woodsworth College Courses
Course Code
WDW101Y1
Professor
William Watson

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PRECEDENT CASES
CONVICTED AT COMMON LAW CAN JUDGES CREATE CRIME
R. v. Sedley 1663
Facts: Sedley was observed flashing on a balcony of a building; he then urinated in a bottle and threw the
bottle off the balcony. He was charged at common law with misdemeanours against the Kings peace
there was no written law prohibiting this conduct at the time. He was convicted court noted that such
profane actions were so frequent that morality had been neglected.
Legal Framework for Sedley
-Court of Kings Bench
-King had the authority/obligation to uphold morality and peace within his territory
-delegated authority and obligation to the judges of the Kings Bench as the guardians of morals (i.e.
the kings peace”)
-any offence was an offence against the King as the guardian of peace and morality
-priority must be given to public safety over individual interests
What is the problem with R. vs. Sedley?
-no notice to the public/subjects about what is permissible and what is impermissible
-crime can be a moving target
-could result in discrimination in the definition/application of crime
-shift towards individual rights
Frey v. Fedoruk (1950-SCC)
-civil law suit
-had profound impact on criminal law
Facts: Frey was caught by Fedoruk peeping in the window of his house; Fedoruk chases Frey and
detains him until the police arrive. Peeping was not an offence in the Criminal Code. Frey is convicted
at trial, conviction is set aside on appeal, Frey is acquitted and then sues Fedoruk for false imprisonment.
False Imprisonment
-does not have to involve actual imprisonment
-only requires restraint on freedom
-to be false, it must be unauthorized or wrongful
Issue: was Fedoruk entitled to hold (“imprison) Frey until the police arrived?
Criminal Code allows for a private citizen to arrest someone without an arrest warrant when a criminal
offence is being committed (in limited circumstances)
Issue: was Frey committing an offence? Where should we look to decide what is an offence?
British Columbia Court of Appeal the plaintiff had committed an offence at common law (breach of the
Kings peace) by acting in a way that produced fear in the inmates of the house and disturbed their
tranquility does not matter that it is not defined in the Criminal Code likely to provoke violent
retribution by others
Supreme Court of Canada overturned decision
No such thing as an offence at common law that produces great uncertainty in the administration of
criminal justice. Should not leave it to judges to decide if some conduct disturbs the tranquility of people
www.notesolution.com
or tends to provoke a violent retribution or is injurious to the public. Nobody should be convicted of a
crime unless it is a provision in the Criminal Code.
Compare R. v. Sedley to Frey v. Fedoruk
-strikes a different balance on the same issue
-reflect different values in terms of
a) roles of judges
b) importance of public order/security
c) importance of individual liberty (freedom to be free from state oppression)
Post-Script to Frey v. Fedoruk
In 1993 the Criminal Code was amended
264(1) No person shall, without lawful authority and knowing that another person is harassed or
recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that
causes the other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone
known to them
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to
them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them,
resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family
LIMITS ON CRIMINAL LAW
Section 91/Section 92 Turf War
Margarine Reference Case (1949, SCC)
Facts: federal government made it an offence to make, import or sell margarine in Canada if it was made
with any fat other than from milk or cream (Dairy Industry Act)
Penalty- fine for a first offence or up to 6 months in jail (with or without hard labour) for subsequent
offences
-legislation was challenged as ultra vires the Federal Government (outside the scope of their powers)
-government tried to defend the legislation as valid criminal law
SCC held that it was ultra vires (outside the jurisdiction of) the federal government
-really a matter of property and civil rights which is a provincial power (s. 92(13))
-in addition the court held: A crime is an act which the law, with appropriate penal sanctions, forbids; but
as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable
effect upon the public against which the law is directed. That effect may be in relation to social, economic
or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest
threatened.
Is the prohibition then enacted with a view to a public purpose which can support it as being in relation
to criminal law? Public peace, order, security, health, morality: these are the ordinary though not
exclusive ends served by that law, but they do not appear to be the object of the parliamentary action here.
That object, as I must find it, is economic and the legislative purpose, to give trade protection to the dairy
industry in the production and sale of butter; to benefit one group of persons as against competitors in
www.notesolution.com
business in which, in the absence of the legislation, the latter would be free to engage in the provinces. To
forbid manufacture and sale for such an end is prima facie to deal directly with the civil rights of
individuals in relation to particular trade within the provinces.
CONFLICTS WITH THE CHARTER PRINCIPLES OF FUNDAMENTAL JUSTICE
What are Principles of Fundamental Justice?
R v. Heywood (1994, SCC)
Facts: Heywood was convicted of a sexual assault involving children
-as part of his penalty for that offence, he was subject to s.179(b) of the Criminal Code:
Everyone who has been convicted of a sexual offence commits an offence (vagrancy) who is found
loitering in or near a school ground, playground, public park or bathing area
-challenged legislation is inconsistent with s.7 of the Charter
-offence limits where people can go = restriction on liberty
-also, carries the potential for imprisonment so restricts the accuseds liberty interest
QUESTION- does it restrict the accuseds liberty in a manner that is inconsistent with the principles of
fundamental justice?
-no defined set of principles of fundamental justice
-found in the basic tenants of our legal system found in the common law
-not all common law rules are principles of fundamental justice
MUST BE:
a.Legal principles
b.Consensus that principle is fundamental to fair operation of our legal system
c. Identified with precision
What are Principles of Fundamental Justice?
R. v. Heywood
SCC identified 3 principles of fundamental justice:
1.Criminal law must not be overbroad are means chosen necessary to achieve the State objective?
Only unconstitutional if means chosen are grossly disproportionate to the objective
2.Notice must be given of criminal offences
3.Criminal law must not be vague incapable of meaningful interpretation by the court
(i.e. if any judge in the country cant interpret the law, it is vague)
R. v. Clay: R. v. Malmo-Levine (2003, SCC)
-argued that criminalizing possession of marijuana for personal use violates s.7
-again, carries risk of imprisonment so it infringes the accused persons liberty interests
-but, does it do so in a manner that is inconsistent with the principles of fundamental justice?
Argued that it is a principle of fundamental justice that
a.Criminal law not be arbitrary (enacted for no good reason)
b.Criminal law must be aimed at protecting against harm to others- protecting against self-harm (to
the extent there is any) is not a valid criminal law purpose
www.notesolution.com

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Description
PRECEDENT CASES CONVICTED AT COMMON LAW CAN JUDGES CREATE CRIME R. v. Sedley 1663 Facts: Sedley was observed flashing on a balcony of a building; he then urinated in a bottle and threw the bottle off the balcony. He was charged at common law with misdemeanours against the Kings peace there was no written law prohibiting this conduct at the time. He was convicted court noted that such profane actions were so frequent that morality had been neglected. Legal Framework for Sedley -Court of Kings Bench -King had the authorityobligation to uphold morality and peace within his territory -delegated authority and obligation to the judges of the Kings Bench as the guardians of morals (i.e. the kings peace) -any offence was an offence against the King as the guardian of peace and morality -priority must be given to public safety over individual interests What is the problem with R. vs. Sedley? -no notice to the publicsubjects about what is permissible and what is impermissible -crime can be a moving target -could result in discrimination in the definitionapplication of crime -shift towards individual rights Frey v. Fedoruk (1950-SCC) -civil law suit -had profound impact on criminal law Facts: Frey was caught by Fedoruk peeping in the window of his house; Fedoruk chases Frey and detains him until the police arrive. Peeping was not an offence in the Criminal Code. Frey is convicted at trial, conviction is set aside on appeal, Frey is acquitted and then sues Fedoruk for false imprisonment. False Imprisonment -does not have to involve actual imprisonment -only requires restraint on freedom -to be false, it must be unauthorized or wrongful Issue: was Fedoruk entitled to hold (imprison) Frey until the police arrived? Criminal Code allows for a private citizen to arrest someone without an arrest warrant when a criminal offence is being committed (in limited circumstances) Issue: was Frey committing an offence? Where should we look to decide what is an offence? British Columbia Court of Appeal the plaintiff had committed an offence at common law (breach of the Kings peace) by acting in a way that produced fear in the inmates of the house and disturbed their tranquility does not matter that it is not defined in the Criminal Code likely to provoke violent retribution by others Supreme Court of Canada overturned decision No such thing as an offence at common law that produces great uncertainty in the administration of criminal justice. Should not leave it to judges to decide if some conduct disturbs the tranquility of people www.notesolution.comor tends to provoke a violent retribution or is injurious to the public. Nobody should be convicted of a crime unless it is a provision in the Criminal Code. Compare R. v. Sedley to Frey v. Fedoruk -strikes a different balance on the same issue -reflect different values in terms of a) roles of judges b) importance of public ordersecurity c) importance of individual liberty (freedom to be free from state oppression) Post-Script to Frey v. Fedoruk In 1993 the Criminal Code was amended 264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes the other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them (2) The conduct mentioned in subsection (1) consists of (a) repeatedly following from place to place the other person or anyone known to them; (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or (d) engaging in threatening conduct directed at the other person or any member of their family LIMITS ON CRIMINAL LAW Section 91Section 92 Turf War Margarine Reference Case (1949, SCC) Facts: federal government made it an offence to make, import or sell margarine in Canada if it was made with any fat other than from milk or cream (Dairy Industry Act) Penalty- fine for a first offence or up to 6 months in jail (with or without hard labour) for subsequent offences -legislation was challenged as ultra vires the Federal Government (outside the scope of their powers) -government tried to defend the legislation as valid criminal law SCC held that it was ultra vires (outside the jurisdiction of) the federal government -really a matter of property and civil rights which is a provincial power (s. 92(13)) -in addition the court held: A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened. Is the prohibition then enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law, but they do not appear to be the object of the parliamentary action here. That object, as I must find it, is economic and the legislative purpose, to give trade protection to the dairy industry in the production and sale of butter; to benefit one group of persons as against competitors in www.notesolution.com
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