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WDW225 Exam Booklet - Summary and Cases

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

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1. SOURCES OF CRIMINAL LAW
Criminal Law 2 types:1)Substantive (a) Definitions of criminal offences (CC)
(b)General principles of CL
(c) Constitution (esp. the Charter)
2)Adjectival(a) Criminal procedure
(b)Criminal evidence
(c) Sentencing
(d)Trial Practice
1. CONSTITUTIONAL CONTEXT
A.Division of powers
(1)Creation of Offences
(2)Prosecutors, Police, and Prisons
Constitution Act , 1867
Division of Powers -- Federal -- s.91(27) Criminal law matters, incl. Crim. Pro.
s.91(28) Penitentiaries
Provincial -- s.92(6) Public and reformatory prisons in and for the province
s.92(13) Property and civil rights in the province
s92(14) Administration of Justice in the province (includes
prosecuting criminal offences and policing; maintenance of provincial courts)
s.92(15) provinces may impose punishment byfine, penalty, or
imprisonment to enforce
provincial laws
Prosecutions Federal govt is responsible for prosecuting all federal offences that are not criminal offences
Policing divided long the same lines: RCMP handle all cases involving non-criminal federal laws
(Narcotics Control Act, e.g.)
Prisons s. 91(28) feds control penitentiaries (2 years +)
-- s. 92(6) provinces control prisons (less than 2 years)
(3)Trials and Trial Courts
1.Courts
(1)Provincial Courts -- All criminal cases are heard by provincial courts (except SCC)
Indictable offences more serious offences 3 types
(1) offences which fall in the absolute jurisdiction of the Provincial
Court
(2)where the accused has an election to choose mode of trial (judge,
jury, etc.)
(3)regulatory offences
Summary conviction offences less serious max. sentence 18
months, max. fine $2000 -- always tried in Provincial
Court
(2)Superior Courts-- controlled by provinces but judges appointed by federal govt (s.96)
-- Sup. Crts. Try 2 types of offences:
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(1)Indictable offences within the exclusive jurisdiction of the Sup.
Crts (s.469 offences) (e.g., piracy, treason, murder, etc.)
(2)Indictable offences where accused elects trial by judge and jury
2.Appeals
-- appeal of summary offence goes to Sup. Crts.; Appeal of indictable offence goes to Court of Appeal
Grounds for appeal: (1) Verdict unreasonable or not supported by the evidence
(2) Miscarriage of justice
(3) Error in law
CC s.686 Notwithstanding the error in law from the trial, there has been no miscarriage of justice and the
conviction stands
2.STATUTORY SOURCES
True crimes Criminal Code of Canada (since 1892); other federal statues (Narcotics Control Act, e.g.)
Quasi-criminal offences Provincial legislation, regulations, etc.
3.COMMON LAW SOURCES
1.A.Common Law Offences
R. v. Sedley (1663) (p. 1)
Streaker public morality was offended the Courts role was to determine what conduct was to be
punished, not relying on statute.
Frey v. Fedoruk (1950) (SCC) (p. 2)
Peeping Tom was detained by private citizen. Peeper sued for unlawful confinement. Peeping tommery not
an offence in CC at the time, and there were no reported common law cases. SCC held that a rule or
conduct must be a recognized offence, either codified or by authority of some reported case. New criminal
cases are for Parliament to create, not the courts.
3.Problems with Common Law Criminal Offences
(1) Ambiguous Laws (a) People dont know if they’re breaking the law
(b) Deterrence factor is ineffective if people dont know that what they’re doing is
wrong
(2) Who makes the laws? Unelected judges or elected officials? Policy issues.
(3) Non-Retroactivity cant retroactively decide what is criminal, i.e., I commit an act and the judge
decides afterward (at trial) that it is a criminal offence (now Charter s.11g)
CC s.8(2), s.8(3), and s.9(a) Hold that common law defences are still valid in Canada, but there are no
more common law offences
1.B.The Use of Common Law Principles in Statutory Interpretation
R. v. Jobidon (1991) (SCC) (p. 13)
Two guys decided to duke it out in the parking lot of a bar. They both agreed to the fight. Jobidon punched
the victim once in the face, knocking the victim unconscious. Jobidon then threw a series of punches to the
head, one of which ultimately killed the victim. Two issues came from the case: (1) Do common law
limitations on consent apply to s. 265 (Assault) of the CC?, and (2) Can mutual consent to a fist fight
protect a participant from being convicted of assault as a result of the fight?
Majority of the SCC rules that (1) Common law limitations can restrict or negate the legal
effectiveness of consent in certain types of cases, and (2) The effect of these limitations is such that adults
cannot consent to receiving serious hurt or non-trivial bodily harm, even though they consent to the
application of force in a fist-fight or brawl.
II. Vagueness, Overbreadth & Strict Construction.
1. VAGUENESS AND OVERBREADTH
Laws that are too vague: do not give citizens fair notice (vagueness). If Laws are overly broad they
place no limits on enforcement discretion (overbreadth). Thus either situation violates section 7 of the
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Charter. The court has determined that if a law is too vague it cannot beprescribed by law and thus
not be justified under section 1 of the charter as a reasonable limit.
Evaluating vagueness courts examine the statutory words used, as well as judicial interpretation of
those words.
In Nova Scotia Pharmaceutical Society: Courts are often able to provide ascertainable meanings, as
laws must necessarily cover a variety of situations. This meant that the situation lacked sufficient
precision in the means used to accomplish it objective.
In Heywood the supreme court evaluated overbreadth and struck down a vagrancy provision which it
considered overly broad as themeans are too sweeping in relation to the objective.
R. v. Heywood [1994] 3 SCR 761 (p. 50)
The accused was charged with sexual assault and vagrancy several times. This case dealt with section
179 1(b) a vagrancy provision of the Criminal Code, and whether it violated either ss. 7 or 11 (d) of the
charter and whether this was justified under s.1.
The phrase: “found loitering in or near a school ground, playground, public park or bathing area.” Was
determined by the majority to be overly broad in three ways the geographic scope as they considered
school yards and playgrounds appropriate however, parks and public bathing areas were places where
children were not necessarily found. The second was the fact this ban lasted for the rest of the convicted
persons life with no chance for review, and third the number of persons it covered exceed what was
necessary. Therefore it violated s.7 and failed the section 1 test due to minimal impairment. The
minority disagreed with the view as they felt that due to the penalties associated with this crime the
burden of proof for a conviction would bebeyond a reasonable doubt which coupled with judicial
discretion would lead to appropriate persons being charged.
2. STRICT CONSTRUCTION
Strict construction was derived from the idea that the law should be interpreted as strictly as
possible to preserve the accused rights. “The importance of clarity and certainty when freedom is at
stake.”
Tension exists between use of strict construction compared to the modern purposive approach which
acknowledges the limits of grammatical or dictionary-based interpretation of words and instructs courts to
look at the broader purposes of a particular statute.
These have supposedly been reconciled in section 12 of the Interpretation Act which states:
Every enactment is deemed remedial, and shall be given such fair, and large and liberal construction and
interpretation as best ensures the attainment of its objects.
Therefore first interpret Criminal law purposively and only if reasonable ambiguities exist should
the doctrine of strict construction be applied. -> This was resolved in a case know as R. v. Paré
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Description
1. SOURCES OF CRIMINAL LAW Criminal Law 2 types: 1) Substantive (a) Definitions of criminal offences (CC) (b) General principles of CL (c) Constitution (esp. the Charter) 2) Adjectival (a) Criminal procedure (b) Criminal evidence (c) Sentencing (d) Trial Practice 1. CONSTITUTIONAL CONTEXT A. Division of powers (1)Creation of Offences (2)Prosecutors, Police, and Prisons Constitution Act , 1867 Division of Powers -- Federal -- s.91(27) Criminal law matters, incl. Crim. Pro. s.91(28) Penitentiaries Provincial -- s.92(6) Public and reformatory prisons in and for the province s.92(13) Property and civil rights in the province s92(14) Administration of Justice in the province (includes prosecuting criminal offences and policing; maintenance of provincial courts) s.92(15) provinces may impose punishment by fine, penalty, or imprisonment to enforce provincial laws Prosecutions Federal govt is responsible for prosecuting all federal offences that are not criminal offences Policing divided long the same lines: RCMP handle all cases involving non-criminal federal laws (Narcotics Control Act, e.g.) Prisons s. 91(28) feds control penitentiaries (2 years +) -- s. 92(6) provinces control prisons (less than 2 years) (3)Trials and Trial Courts 1. Courts (1) Provincial Courts -- All criminal cases are heard by provincial courts (except SCC) Indictable offences more serious offences 3 types (1) offences which fall in the absolute jurisdiction of the Provincial Court (2) where the accused has an election to choose mode of trial (judge, jury, etc.) (3) regulatory offences Summary conviction offences less serious max. sentence 18 months, max. fine $2000 -- always tried in Provincial Court (2) Superior Courts -- controlled by provinces but judges appointed by federal govt (s.96) -- Sup. Crts. Try 2 types of offences: 1 www.notesolution.com (1)Indictable offences within the exclusive jurisdiction of the Sup. Crts (s.469 offences) (e.g., piracy, treason, murder, etc.) (2)Indictable offences where accused elects trial by judge and jury 2. Appeals -- appeal of summary offence goes to Sup. Crts.; Appeal of indictable offence goes to Court of Appeal Grounds for appeal: (1) Verdict unreasonable or not supported by the evidence (2) Miscarriage of justice (3) Error in law CC s.686 Notwithstanding the error in law from the trial, there has been no miscarriage of justice and the conviction stands 2. STATUTORY SOURCES True crimes Criminal Code of Canada (since 1892); other federal statues (Narcotics Control Act, e.g.) Quasi-criminal offences Provincial legislation, regulations, etc. 3. COMMON LAW SOURCES 1. A. Common Law Offences R. v. Sedley (1663) (p. 1) Streaker public morality was offended the Courts role was to determine what conduct was to be punished, not relying on statute. Frey v. Fedoruk (1950) (SCC) (p. 2) Peeping Tom was detained by private citizen. Peeper sued for unlawful confinement. Peeping tommery not an offence in CC at the time, and there were no reported common law cases. SCC held that a rule or conduct must be a recognized offence, either codified or by authority of some reported case. New criminal cases are for Parliament to create, not the courts. 3. Problems with Common Law Criminal Offences (1) Ambiguous Laws (a) People dont know if theyre breaking the law (b) Deterrence factor is ineffective if people dont know that what theyre doing is wrong (2) Who makes the laws? Unelected judges or elected officials? Policy issues. (3) Non-Retroactivity cant retroactively decide what is criminal, i.e., I commit an act and the judge decides afterward (at trial) that it is a criminal offence (now Charter s.11g) CC s.8(2), s.8(3), and s.9(a) Hold that common law defences are still valid in Canada, but there are no more common law offences 1. B. The Use of Common Law Principles in Statutory Interpretation R. v. Jobidon (1991) (SCC) (p. 13) Two guys decided to duke it out in the parking lot of a bar. They both agreed to the fight. Jobidon punched the victim once in the face, knocking the victim unconscious. Jobidon then threw a series of punches to the head, one of which ultimately killed the victim. Two issues came from the case: (1) Do common law limitations on consent apply to s. 265 (Assault) of the CC?, and (2) Can mutual consent to a fist fight protect a participant from being convicted of assault as a result of the fight? Majority of the SCC rules that (1) Common law limitations can restrict or negate the legal effectiveness of consent in certain types of cases, and (2) The effect of these limitations is such that adults cannot consent to receiving serious hurt or non-trivial bodily harm, even though they consent to the application of force in a fist-fight or brawl. II. Vagueness, Overbreadth & Strict Construction. 1. VAGUENESS AND OVERBREADTH Laws that are too vague: do not give citizens fair notice (vagueness). If Laws are overly broad they place no limits on enforcement discretion (overbreadth). Thus either situation violates section 7 of the 2 www.notesolution.com
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