Criminal Class 2 Sources of the Common Law

Question 1

What are some sources of Criminal Law? There are 4 main ones:

Answer 1

1) Criminal Code
2) Constitution
3) Legislation
4) Common Law

Question 2

Is the criminal code the only federal statute that sets out offences? Can provincial statues set out offences?

Answer 2

No. Other things are like
The Controlled Drugs and Substances Act, or the highway traffic act both set out offences. Provincial statutes can also set out offences.

Question 3

R. v. Sedley 1663— Sedley was charged as he was peeing on people. What was the point of the case?

Answer 3

• Charged with breaching the kings peace, common law offence.
• Sedleys offence did not fall under any specific statutory offence
• Court deemed conduct offended morality, felt compelled to punish behaviour Thus created common law offences
  *It was the Court that determined whether conduct was criminal

Question 4

Can the charter of rights and freedom be a source of substantive criminal law?

Answer 4

Yes. It enshrines several procedural rights specific to criminal law.

Question 5

What it the pre-eminent source of criminal law?

Answer 5

Legislation

Question 6

What is section 9 of the criminal code and Section 8.3?

Answer 6

Section 9 abolishes common law offences

Section 8.3 perseveres common law defences

Question 7

Why were common law offences eliminated? What about common law defences

Answer 7

there were eliminated due to ambiguity and the weight it placed on judges.

it perserved all common law defences.

Question 8

R. v. Fredoruk 1950. Fedoruk was a peeping tom. Convicted at trial for peeping but defence argued that this was not in the criminal code. What was the result of the case?

Answer 8

Issue: Can he be convicted of a common law offence?

Holding: If the courts are allowed to determine that any disruptive act, disturbs the peace, and is therefore guilty of an offence, then this leaves a wide and uncertain state of affairs. SC stated its preference, in criminal matters, defer almost entirely to statutes (Criminal code) and that therefore, since it is not a crime to be a ‘peeping Tom’

Ratio: Common law offences eliminated from CND criminal justice system except contempt of crime. however common law defences are still valid.

Question 9

Generally why were common law offences abolished? What is the one exception to common law offences?

Answer 9

Generally, they were abolished as it made judges decide what constituted a criminal offence when it should be parliament.

Contempt of court.

Question 10

R v. Henry 2005 talks about precedents versus obiter dicta. What was the point of this case?

Answer 10

Stare Decisis (ratio is always binding on lower courts) is not always a thing as you can change if material fact difference

Courts conclusion: Not all obiter dicta binding, but some obiter dicta intended to give guidance should be accepted as binding while some obiter dicta is intended to be persuasive, but not binding. Difficult at times to determine the difference.

Note: Precedents – not all are binding – can be distinguished on its facts or the law involved – gives judges some flexibility

Question 11

What does “vis-a-vis” mean?

Answer 11

In relation to.

Question 12

Reference re: Firearms Act 2000 SCC
Issue: Whether Parliament had the constitutional authority to enact the Firearms Act. What are the three prerequisites to determine if the legislation is criminal law?

Answer 12

Issue: whether Parliament had the constitutional authority to enact the Firearms Act

Was this legislation criminal law? To determine you look at the three prerequisites

(1) Prohibition
(2) Penal Sanction
(3) Criminal Law Purpose

Due to the presumption of constitutionality, burden is on the challenging party to show that the legislation is ultra vires the enacting level of government

Here, court weighed public safety over property rights

Question 13

How has the Charter of Rights and Freedoms affected criminal law?

Answer 13

It is a source of substantive criminal law. Mainly has helped with procedures to ensure no rights are being infringed.

Question 14

Two types of charter challenges. What are they and explain

Answer 14

Charter challenge to the law: The law is on trial (unconstitutional), remedy under s.52 of the Constitution Act, (unless saved by. s.1)

Charter challenge to conduct: Police infringed a charter right by there actions or conduct

Question 15

What section of the Charter has the biggest effect on substantive criminal law?

Answer 15

One of the sections which has the greatest impact on substantive criminal law is s. 7 which prevents governments from depriving persons of “life, liberty or security of the person” unless they act “in accordance with the principles of fundamental justice

Question 16

Canadian Foundation for Children Case. Had to interpret if hitting kids was okay in the statute. Issue of the case is if the law was vague. What is the standard for vagueness?

Answer 16

Point of the case is the standard for vagueness. a law is vague if it does not provide a basis for legal debate, it is not intelligible, or you cannot make an analysis on it.

Question 17

What is the doctrine of vagueness? What is it directed at/what is it trying to prevent?

Answer 17

Doctrine of vagueness directed generally at the evil of leaving basic policy matters to the discretion of police officers, judges and juries for resolution on an ad hoc and subjective basis

Question 18

Bedford v A.G.Prostitues argue they can have a escort house and challenged constitutionality of former sections.

What three things do the Courts have to look at when interpreting if the act is valid?

Answer 18

A law runs afoul of the Constitution when the means by which the state seeks to attain its objective is fundamentally flawed, in the sense of being vague, arbitrary, over broad, or having effects that are grossly disproportionate to the legislative goal.

Three big things

1) Arbitrariness is when the link between the objective and effect is absent

2) Over breadth is if the purpose and effect are linked

3) Gross disproportionality; Balances the negative effect on the individual against the purpose of the law,

Question 19

Safarzahe v. Markhali. In order to determine if the act that you are disputing is over breath, gross disproportional or arbitrary, what do you need to find first?

Answer 19

To determine if it is arbitrary over breadth or grossly disproportionate you have to find the purpose of it.

Question 20

Hunter v Southham– The judiciary is the blank of the constitution.

Answer 20

The judiciary is the guardian of the constitution. breaks down the two ways to challenge constitution.