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Criminal Law
McGill Faculty of Law
Campbell, Angela

Criminal Law Campbell Summer 2011


· Parliament has the power to legislate on the basis of morality alone (Malmo-Levine)

· Test for a PFJ (Malmo-Levine)

o Legal principle

o Significant societal consensus

o Fundamental to the way in which the legal system ought to fairly operate

o Can be identified with precision

o Manageable standard to measure deprivation of liberty

· Harm test (Butler, Labaye)

o Does the harm flowing from the act predispose a person to act in an antisocial manner (conduct that society formally recognizes as incompatible with its proper functioning)

o Is the harm to such a degree that it is incompatible with the proper functioning of society

Devlin, “The Enforcement of Morals” (CB 47)

Hart, “Immorality and Treason” (CB 52)

R v Malmo-Levine

[1969] 1


· M was charged with simple possession of marijuana and possession with intent (under the reverse onus clause)


Can Parliament criminalize possession? Does it violate the Charter?


Yes. No.

Reasons (Gonthier & Binnie JJ)

· Groups in society are harmed by marijuana, and while they are small relatively, their numbers are large in absolute terms

· Widespread use despite the prohibition encourages disrespect for the law

· Marijuana is not as harmful as sometimes claimed, but it is harmful to some vulnerable groups

· Valid criminal law purpose, prohibition, penalty

· There is a reasoned apprehension of harm (Butler)

· Test for a PFJ: legal principle, significant societal consensus, fundamental to the way in which the legal system ought to fairly operate, can be identified with precision, manageable standard to measure deprivation of liberty.

· State can criminalize harm to self

· Arbour J dissenting

o Imprisonment must be restricted to those who cause harm to others


Harm principle is not a PFJ. Parliament can legislate on morality alone.

R v Labaye

[2005] 3 SCR 728 à CB 70


· L ran a swingers’ club


Is the swingers’ club indecent?



Reasons (McLachlin CJC)

· Crime should be defined with as much precision as possible

· Butler test for obscenity:

o Does the harm flowing from the act predispose a person to act in an antisocial manner (conduct that society formally recognizes as incompatible with its proper functioning)

o Is the harm to such a degree that it is incompatible with the proper functioning of society

· Types of harm

o Harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct

o Predisposing other to antisocial conduct

o Harm to people participating in the conduct

· Where the crown relies on risk of harm, it must be significant, but threshold is lower if there is more severe harm


Restatement of the harm test


· Not actually criminal, just acts around prostitution:

o 213(1)(c) communication for purposes of prostitution (90% of all prostitution prosecutions, CB 91)

o 212(1)(j) living off the avails

o 210(1) keeping a common bawdy house

Report of the House Standing Committee on Justice and Human Rights (2006, CB 90)

· 213 has not had the desired deterrent effect

· Forces prostitutes into secrecy and isolation

· Minimizes information sharing on violent clients, makes obtaining assistance harder

· Must frequently change locations, so separates them from friends, coworkers, regular customers

· Negotiations must be quick, so can’t screen clients

· 210 (keeping a bawdy house) – prostitutes cannot sell sex under safer conditions of a house with people

· 212 (living on the avails) – cohabitation is good for saving money, reduces risk of abuse and isolation

· Better if a third party can screen clients

· Prostitution is a violent and alienating activity

· Police say 213 can protect clients from pimps

Reference Re ss 193 and 195.1(1)(c) of the Criminal Code

[1990] 1 SCR 1123 à CB 85


Are the provisions against communicating for the purposes of prostitution and keeping a common bawdy house contrary to the Charter?


Yes, but saved by s 1; No.

Reasons (Dickson CJC)

· PFJ not designed to ensure optimal legislation

· Concurrence (Lamer J)

o Fair notice is given, and discretion is limited

o Liberty and security of the person so far are negative rights

o To expand the scope of s 7 too much would infringe on the judiciary’s role as guardian of the justice system, because it would bring s 7 into the policy field, which is not for the judiciary

· Dissent (Wilson J)

o Prohibition is not proportionate because it prohibits all expressive activity conveying a certain meaning

o Definitional limits are desirable

o Resistance to outright criminalization of sex is consequential because court cannot, therefore, treat prostitution as socially undesirable, since it’s not a crime

o Communication provisions violate ss 7 and 2(b), and are not saved by s 1


Test for s 7 Violation

From first year Constitutional

· Deprivation of life, liberty, security of the person

o Violations

§ Absolute liability offences (BC Motor Vehicle Reference)

§ Preventing an abortion (Morgentaler)

§ Preventing assisted suicide (Rodriguez)

§ Prohibition on private medical insurance (Chaoulli)

§ Denying parents decisional autonomy over their children (B(R))

§ Denying choice of where to live (Godbout)

§ Denial of state counsel in custody proceedings

· Must be more than “the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action … serious and profound effect on a person’s psychological integrity” (New Brunswick v G(J), CB 1189)

o Not a violation

§ Denying welfare (Gosselin)

§ Delay in sexual harassment trial causing psychological distress (Blencoe v British Columbia, CB 1191)

· Consistent with fundamental justice

o Test for principle of fundamental justice (Chaoulli, dissent, drawing on Rodriguez)

§ Legal principle

§ Significant societal consensus

§ Can be identified with precision, by a manner yielding predictable results

o Not consistent

§ Absolute liability offences (BC Motor Vehicle Reference)

§ Illusory defences (Morgentaler)

§ Arbitrary laws (Chaoulli)

o If not consistent with the principles of fundamental justice, go to s 1


Burden of Proof

· The Crown must prove the accused guilty BARD (Woolmington)

· There is no burden on the accused to prove his innocence (Woolmington)

· Any burden that would allow a conviction despite the existence of a reasonable doubt violates the Charter (Oakes)

· s 11(d) jurisprudence summary (Downie)

o Presumption of innocence infringed whenever conviction is possible despite a reasonable doubt of guilt

o If accused is required to prove or disprove an essential element of an offence or excuse, s 11(d) is violated (Oakes)

o A rational connection between the established and presumed facts does not justify an accused having to disprove an element of the offence

o Presumption will be valid if proof of the substituted facts leads inexorably to the proof of the other fact, but will infringe s 11 if it requires the trier to convict in spite of a reasonable doubt

o Permissive assumptions will not violate s 11(d)

o Minor provisions will contravene the Charter if they must be established by the accused (ex sanity, Chaulk)

o Infringement of s 11(d) can be justified by s 1 (Keegstra)

· Presumptions

o Permissive – optional inference from proven fact to presumed fact

o Mandatory – inference must be made

o Rebuttable


§ Raise a reasonable doubt

§ Evidentiary burden

o Of Fact – frequently recurring examples of circumstantial evidence

Woolmington v DPP

[1935] AC 462 à CB 279


· W convicted of wife’s murder and sentenced to death

· Judge instructed he was presumed in law to be guilty unless he could satisfy the jury his wife’s death was due to accident?


Did the defendant have the burden to prove the murder was an accident?



Reasons (Lord Sankey)

· There is authority supporting the trial judge

· That authority should be interpreted “if it is proved that the conscious act of the prisoner killed a man and nothing else appears in the case, there is evidence upon which the jury may find him guilty of murder” but the onus is still on the Crown

· No burden on accused to prove his innocence, it is sufficient to raise doubt about his guilt


Crown must prove the accused guilty beyond a reasonable doubt. There is no burden on the accused to prove innocence.

R v Oakes

[1986] 1 SCR 103 à CB 284


· O convicted of possession with intent to traffic under a reverse onus provision that presumes trafficking and requires the accused to disprove intent on the BOP


es a prohibited act

· Without it, the State could police thought (CB 301)

· Requirements

o Physically voluntary

o Act or omission

o Sometimes in certain prescribed circumstances

o Sometimes causing certain circumstances


· AR and MR coincide at some point in the transaction (Cooper)

· MR can be superimposed on continuing AR (Fagan)

· Duty to rectify a risky situation unintentionally created. Omission to do so will bring liability (Miller)

Fagan v Commissioner of Metropolitan Police

[1969] 1 QB 439 à CB 302


· F drove onto a police officer’s foot, the car turned off, and F was slow to back off the foot


Is F guilty of assault?



Reasons (James J)

· Assault: act which intentionally or recklessly causes another person to apprehend immediate personal violence.

· Distinction is between complete acts, where results to continue to flow, and continuing acts

· Mens rea can be imposed on actus reus, it need not be present at the start

· Subsequent inception of mens rea cannot convert an act which has been completed without mens rea into assault

· Keeping the car on the foot continued the act of the car rolling onto the foot, so the MR was superimposed on the AR when F didn’t back off right away.


MR can be superimposed on continuing AR, as long as it has not been completed.

R v Miller

[1982] 2 All ER 386 à CB 305


· M was a squatter who fell asleep on a mattress

· He dropped his cigarette into the mattress, and when he realized it was on fire, moved into another room and fell asleep again

· He was charged with arson


Was M’s omission to do something about his unintentional dropping of a cigarette enough to ground liability?



Reasons (Lord Diplock)

· Court of Appeal

o Unintentional act followed by an intentional omission to rectify that act or its consequences

o Whether the offender adopts what he has done earlier by what he deliberately or recklessly fails to do later is an important consideration

o His failure with knowledge to extinguish the incipient fire had it in a substantial element of adoption on his part of what he had unintentionally done earlier namely set the fire

· Omission to counteract a danger the accused created attaches liability if there is the requisite MR

· When a person becomes aware of a danger he created that presents an obvious risk, he has a duty to fix it


Duty to rectify a risky situation unintentionally created. Omission to do so will bring liability.

R v Cooper

[1993] 1 SCR 146 à CB 307


· C strangled a woman, but was not conscious at the point the strangulation caused death, only at the start of it


Is C guilty despite not having intent at the time of death?




· Once the accused had formed the intent to cause the deceased bodily harm, which he knew was likely to cause her death, he need not be aware of what he was doing at the moment she actually died.

· At some point the AR and MR must coincide

· Series of facts may form part of the same transaction

· Grabbing the neck there was necessary coincidence of wrongful act of strangulation and intent to do bodily harm that C knew was likely to cause death


AR and MR must coincide at some point during the transaction.