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Criminal Law
McGill Faculty of Law
Healy, Jeff

General Info:
Ten Commandments Rehashed:
1. Thou Shall Not Kill: this poses a problem, as it does not distinguish between intentional killing (i.e. murder) and accidental killing. Our prohibition of killing needs to capture the various scenarios that may result in someone being killed.
2. Thou Shall Not Steal: this should have two components – that one have the intention to take someone’s property, and that one actually take the property of another without their consent.
3. Thou Shall Not Bear False Witness: there should be a prohibition on perjury.
4. Thou Shall Not Take the Lords Name in Vain: the criminal code does, in fact, have prohibitions on certain types of speech (hate speech, obscene speech, etc…)

The criminal law must be specific; it must specify the legitimate uses – and the limits – of state force (criminal sanctions).

The criminal law – according to Dickson – is a field of conflicting values.
Structure of Canadian Criminal Law:
· The first place to look when dealing with criminal law is the constitution. We need to ask (1) how the system of division of powers relates to the criminal law; and (2) how the Charter deals with criminal law.
Division of Powers
· In terms of the division of powers, we know that it is the federal government who has full jurisdiction over criminal law by way of S.91(27). However, the field of criminal law is not well defined by the Supreme Court. The best definition we have is by Justice Dickson, who stated that criminal law deals with issues of morality.
· The Supreme Court of Canada, in RJR Macdonald, said that the federal government cannot only prohibit certain types of activity, but can also regulate certain activities.
· The provinces can regulate underage drinking, and can impose sanctions on underage drinkers, but this is NOT a matter of criminal law, but is a penal matter; the municipalities can regulate parking through sanctions, but this is NOT a criminal matter, but is a penal matter. We must make the distinction between penal matters and criminal matters.
· There are certain issues that, at one level are dealt with through municipal sanctions, and at another level are dealt with through the criminal law. For example, throwing away a coke can on the street is dealt with through municipal – regulatory – sanctions; dumping oil in the ocean, however, is dealt with through criminal sanctions. It appears the line should be – and indeed is – drawn at the point where an act begins to pose a danger to the public.
· To some extent, the distinction between criminal and regulatory sanctions stems from the division of powers in the constitution.
· It is still not clear whether parliament can create offences that are not criminal in nature, that is, offences beyond S. 91(27).
The Charter:
· There are various Charter provisions that relate directly to Criminal Law: S. 7-13, S. 24, and most importantly, S. 7.
· S. 7 states that “everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof unless in accordance with the principles of fundamental justice”.
· In 1985, in the Motor Vehicle Reference, the court had to consider whether S. 7 provides only procedural guarantees. The statute in question prohibited driving without a valid license, and allowed one to be convicted without proving fault (intent, recklessness, etc..); the crown only had to prove the fact the person did not have a valid license. The appellant argued that the absolute liability imposed in this case is not consistent with S. 7; he argued that S. 7 goes beyond procedural matters, but also allows the courts to review substantive law. The appellant argued that the law – and the sanctions it imposed – was not in accordance with the principles of fundamental justice.
The Criminal Code:
· Besides the code itself, there are various other Acts – such as the Controlled Drugs and Substances Act – that deal with Criminal Law.
· The Criminal Code is, therefore, not a comprehensive statement of the criminal law; on the contrary, criminal offences appear all over the place. The Criminal Code provides a consolidation of criminal offenses, but is in no way complete.
· The first Criminal Code came about in 1892. This represented an attempt – after confederation – to impose a universal criminal law. John A. MacDonald believed that, because it represented an area of national concern, the criminal law should be national in scope. This contrasts with the U.S., in which the States create and regulate criminal offenses.
· In addition, Cases – and the Common Law – also represents an authority on the criminal law. Most of the Criminal Code attempts to state the Common Law principles. It is not, however, open to the courts to create criminal offences; there are no common law offenses in Canada, except for contempt of court.
· The Criminal Code is explicit about the fact that the courts, while unable to create new offenses, may nevertheless create new defenses.
· There is a distinction between the general part of the criminal law and the special part of the criminal law: the special part deals with particular offenses, such as terrorism offenses, that are grouped together according to the type of crime; the general part, on the other hand, deals with principles of general application throughout the criminal law.

Basic Principles:
· With respect to self-defense, the Supreme Court has acknowledged that the state of the law is in a mess.
· In general, in order to prove someone is guilty, you need the following: AR (Actus Reus) + F (Fault) = G (Guilt).
· There can be crimes in which the element of conduct is a positive action; and, in addition, there are crimes for which the element of conduct is a failure to act. Many argue that, if the state wishes to hol

as a Statute
à Fundamental Principle: There cannot be criminal liability without some kind of expression – in the form positive law by Parliament – about what the offence entails (s. 9 – no offences at common law).

à1953: common law offences were abolished in Canada. Why are common law offences prohibited under the 9(a) Criminal Code but not common law defenses, excuses, or justifications?

Common Law Defenses:

Amato v The Queen (1982) SCC

· The defense of entrapment, though not codified in statute, can be justly applied as a common law defense.
· Other common law defenses have been recognized prior to this, such as duress, necessity and due diligence; thus, common law defenses are indeed recognized under Canadian law.
· The principle of common law defenses is codified in the criminal law in s. 7(3) of the Criminal Code.
· “The common law would be allowed to develop defenses not inconsistent with the provisions of this Code if the construction adopted was not prospective”.
· While common law offenses are excluded, we allow the inclusion of common law principles that declare under what circumstances amount to a justification or excuse for doing that which would otherwise be a crime.
· “The common law, insofar as it provides a defense, should be preserved in all cases not expressly provided for”.

Common Law Offenses:

Frey v Fedoruk (1950)

Should “peeping tom” constitute a new criminal offence such that the defendant’s actions should be deemed criminal in nature? NO
Reasoning: Cartwright
The introduction of common law crimes “would introduce great uncertainty into the administration of the Criminal Law, leaving it to the judicial officer trying any particular charge to decide that the acts proved constitute a crime…” (22) No Common law offences
John Willis: decision as protecting individuals from risk of oppression and protecting the state from the risk of disorder