(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
-- 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
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 Court’s 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 don’t know if they’re breaking the law
(b) Deterrence factor is ineffective if people don’t know that what they’re doing is
(2) Who makes the laws? Unelected judges or elected officials? Policy issues.
(3) Non-Retroactivity – can’t 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