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CC s 8(3), adopted in 1953, allows for the use of all CML defenses, insofar as they are not inconsistent with the CC. It also permits the development and evolution of new defences (Amato).
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CC s9 abolishes all CML offences. Even before Parliament adopted s9 in 1953, Canadian courts stopped inventing new offences with no precedent in statute or case law (Frey v Fedoruk).
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S9 explicitly preserves contempt. Thus, criminal contempt remains a offence even though it is not codified (United Nurses of AB)
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Why? It is impossible to foresee all circumstances which may excuse an offense, and the use of the Code should not risk depriving individuals of a defence.
Amato, SCC, 1982
Is the D not guilty thanks to the defense of entrapment, even though the defense of entrapment is not in the CC and was not a defense in 1953 when [now] s 8(3) was added? – Can judges develop new CML defenses? [Yes]
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Frey v Fedoruk, SCC, 1950
Frey was charged with “peeping” after he was caught looking into a woman’s room in Fedoruk’s house.
Issue: Is “peeping” an offence, even though there is no precedent for it? (no)
Offences must be found in the code or in precedent
Rationale: need for certainty!
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Fair Notice / Principle of Legality -
This principal of legality, the idea that there must be fair notice of a criminal law a provision… Okay, but courts still interpret. Sometimes in unexpected ways. In ways that seem to cut against fair notice. So has anything changed?
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S7 of the Charter does not require that (it is not a principle of fundamental justice that) all criminal offenses be codified (United Nurses). No constitutional requirement for codification.
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Hart Devlin debate
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Mabior
Interpreting the CC
In the absence of ambiguity, CC provisions should be given a purposive interpretation in accordance with Driedger’s modern approach and s 12 of the Interpretation Act (Bell ExpressVu).
Modern Approach: They should be “read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”.
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Interpretation Act s 12: every enactment…shall be given…liberal construction and interpretation as best ensures the attainment of its objects.
Where ambiguity is present, the doctrine of strict construction will apply: the court should adopt the interpretation most favourable to the accused (R v Pare; Bell ExpressVu).
The ambiguity must be “real”. The words of the statute, read in their entire context, must be reasonably capable of more than one meaning, each equally in accordance with the intentions of the statute (Bell ExpressVu).
R v Pare – I’ll put this in the murder section
Charter 11(d): Any person charged with an offence has a right (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal
The presumption of innocence, guaranteed in 11(d) of the Charter, requires the prosecution to prove every aspect of a criminal charge (elements of the offence, collateral factors, excuses, defenses) beyond a reasonable doubt. Any requirement that the accused prove or disprove some fact on the balance of probabilities to avoid conviction violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt (R v Oakes, R v Whyte).
An infringement of 11(d) may, of course, be justified under s1 (Keegstra, Wholesale Travel)
The elimination of an element of an offence altogether, as in strict liability, does not infringe 11(d), which concerns the burden of proof rather than the nature of the offence (Transport Robert)
R v Oakes, SCC, 1986 (284) (Dickson)
Provisions of the Narcotics Control Act infringed 11(d) because they placed on the accused the burden of disproving on the balance of probabilities an essential element of an offence.
An accused would, once convicted of possession, be presumed to have been in possession for the purpose of trafficking (a more serious offence), unless he succeeded at rebutting this presumption on the balance of probabilities.
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R v Keegstra, SCC, 1990 (290) (Dickson)
It infringes 11(d) that the truth defense (CC 319(3)(a)) to the offense of hate speech (CC 319(2)) requires the accused to establish that his statements were true, but this infringement is justifiable under s1, given the importance of eradicating hate speech, and the difficulties that would be involved in requiring the crown to prove that hate speech is false.
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Quantum of Proof -
“beyond a reasonable doubt” has a special meaning in the criminal law context.
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A reasonable doubt is not an imaginary or frivolous doubt. (Lifchus)
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It is based on evidence, reason, and common sense rather than sympathy or prejudice. (Lifchus)
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“Beyond a reasonable doubt” requires more than the balance of probabilities, but less than absolute certainty, though it lies closer to absolute certainty than the balance of probabilities (R v Starr).
R v Lifchus, SCC, 1997 (292) (Cory J)
Trial judge erred by telling jury to use the phrase “reasonable doubt” in its “ordinary, natural every day sense.”
SCC explained what “beyond a reasonable doubt” means and provided model jury instructions.
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R v Starr, SCC, 2000 (294)
Trial judge instructed the jury that “beyond a reasonable doubt” does not require proof or certainty, did not otherwise fully explain the concept.
Majority found the trial judge erred.
Dissent (L’Heureux Dube): found the trial judge’s instructions were suffice. Leifchus is not a iron-clad roster.
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