Solution Manual For Criminal Law And The Canadian Criminal Code 7CE Sherrie Barnhorst, Richard Barnhorst, Adriel Weaver, Dean Embry Chapter 1-13
Chapter 1 Criminal Law in Canadian Context LEARNING OBJECTIVES Describe how Canada is legally pluralist Explain the constitutional limits on Parliament's power to legislate Identify two circumstances in which a Charter-infringing statute or provision will nevertheless be valid Explain how the principle of stare decisis operates Distinguish between public and private law and public and private wrongs Locate statutes and case law
CHAPTER SUMMARY/COMMENTARY This chapter situates Canadian criminal law within a particular legal and constitutional framework. Canada is a legally pluralist or multijuridical country, in which Indigenous law, civil law, and common law co-exist. It is also a country in which different orders of government— federal, provincial, and Indigenous—operate in areas relevant to criminal law and the administration of criminal justice. Their respective powers are set out in ss 91 and 92 of the Constitution Act, 1867, which divides legislative authority between Parliament and the provincial legislatures, and s 35 of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights, including the inherent right of self-government. These provisions are subject to judicial interpretation, and, in the case of s 35, ongoing negotiation. Reconsidering and restructuring the relationship between different legal traditions and orders of government is essential to achieving justice for everyone in Canada. This book focuses on the Criminal Code and related judicial decisions. The Criminal Code is enacted by Parliament pursuant to its legislative authority over substantive criminal law and criminal procedure. Parliament‘s power to legislate is constrained by the Charter of Rights and Freedoms, part of the Constitution Act, 1982. Section 52 of the Constitution Act, 1982 empowers judges to strike down legislative provisions that are inconsistent with the Charter. Judges also make law by interpreting statutes and establishing legal principles in areas not governed by legislation. Judges are in turn constrained in the exercise of their powers by the principle of stare decisis, which requires that they adhere to and apply precedent. Criminal offences are public wrongs, prosecuted by the state. They may overlap with but are distinct from private wrongs, such as torts, for which individuals can bring civil lawsuits. The Charter has particular significance for criminal law and procedure. Legal rights are set out in ss Instructor’s Manual to accompany Criminal Law and the Canadian Criminal Code 7e, by Barnhorst/Weaver/Embry Chapter 1 © 2023 McGraw Hill Ltd.
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7 to 14 of the Charter. Sections 8 to 10 and 24(2) are considered in greater detail in Chapter 4, while ss 11 to 14 and 24(1) are examined in Chapter 5. This chapter provides an overview of s 7, which guarantees the right not to be deprived of life, liberty, or security of the person, except in accordance with the principles of fundamental justice. The Supreme Court has set out a framework for determining whether a rule is a principle of fundamental justice, which requires that (1) it is a legal principle; (2) there is consensus that the principle is fundamental to the way in which the legal system ought fairly to operate; and (3) it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of the interests protected under s 7. This chapter also introduces the structure of the Code and case law and provides guidance with respect to locating both statutes and court decisions including online and using modern, neutral citation where possible.
KEY TERMS Acquitted Arbitrary detention Balance of probabilities Beyond a reasonable doubt Canadian Charter of Rights and Freedoms Case law Civil law Civil wrong Common law Criminal Code Criminal procedure Crown attorney Defendant Dissenting reasons or opinion Intra vires Jurisdiction Holding in a case Legal pluralism Notwithstanding/override clause Parliamentary supremacy Plaintiff Principles of fundamental justice Precedent Reasonable limitation Resolution discussions Settler colonialism Stare decisis Statutes Tort Instructor’s Manual to accompany Criminal Law and the Canadian Criminal Code 7e, by Barnhorst/Weaver/Embry Chapter 1 © 2023 McGraw Hill Ltd.
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Tort law Ultra vires Void for vagueness
QUESTIONS FOR REVIEW AND DISCUSSION 1.
a.
Legal pluralism is the coexistence of multiple legal systems in the same geographic area.
b.
The legal traditions that constitute Canadian law are Indigenous law, civil law, and common law.
2. The legislative branch of government (Parliament and the provincial legislatures) exercises its law-making power by enacting statutes. 3. The Constitution Act, 1867 limits Parliament‘s law-making power by assigning legislative authority over certain areas to the provinces. A statute that intrudes on a provincial ―head‖ or area of legislative authority is ultra vires (beyond the power of) Parliament and therefore void. 4. The rights and freedoms set out in the Charter are, pursuant to s 1, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. In determining whether a limit is justified, courts apply the test first set out by the Supreme Court in R v Oakes: a. Is there a pressing and substantial objective? b. If so, are the means chosen to achieve that objective proportional? This question has three elements: i. Is there a rational connection or causal link between the impugned measure and the objective? ii. Is there minimal impairment of the right(s) or freedom(s) engaged by the measure? In other words, does the measure limit the right or freedom no more than is reasonably necessary to achieve the objective? iii. Is there overall proportionality between the deleterious and salutary effects of the impugned measure? This is sometimes referred to as the ―final balancing‖ Many of the rights and freedoms protected by the Charter are also subject to s 33, which is often referred to as the ―override‖ or ―notwithstanding‖ clause. It provides Parliament or the legislature of a province may expressly declare in a statute that the Act as a whole or one or more provisions shall operate notwithstanding s 2 or ss 7 to 15 of the Charter. Democratic, mobility and language rights as set out in sections 3 to 6 and 16 to 23 of the Charter are not subject to s 33. In order for s 33 to operate it must be explicitly invoked, though there is no requirement to identify the provisions of the Act that might infringe specific rights or Instructor’s Manual to accompany Criminal Law and the Canadian Criminal Code 7e, by Barnhorst/Weaver/Embry Chapter 1 © 2023 McGraw Hill Ltd.
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freedoms, or to provide a substantive justification. A s 33 declaration is only valid for five years, following which it ceases to have any effect unless it is re-enacted.
5. Judges make law in two ways: a. When a statute is involved, judges interpret its provisions according to established principles of statutory interpretation, which include determining the intent of the legislators. These interpretations become part of the law. b. When there is no statute involved, judicial decisions constitute the body of rules or laws that govern those areas. 6. Parliamentary supremacy is the principle that the legislative body has the ultimate lawmaking authority and is not bound by precedent. This means that if there is a conflict between judge-law and statute law, statute law overrides judge-made law. The Constitution Act, 1982 creates an exception to this rule by giving courts the authority to determine that laws or provisions violate the Charter and are thus of no force or effect pursuant to s 52 of the Constitution Act. 7.
a.
Stare decisis means to stand by what has been decided. The rule of stare decisis means, generally speaking, that where the facts of a case are the same as or similar to the facts of a case previously decided, lower courts must follow the decisions of higher courts, and court of equal rank should generally follow one another‘s decisions or provide an explanation for why they are departing from them In Canada, the highest court that sets precedent for all other courts is the Supreme Court of Canada. Within each province, the provincial court of appeal will set binding precedent for lower courts. Notes, however, that a court of appeal decision from one province need not be followed by lower level courts in other provinces.
b.
A precedent is a decision in a prior case involving similar facts and legal principles.
8. If Alex were charged with dangerous driving, the offence would be prosecuted by a Crown attorney. It would be up to the Crown to make decisions about how to proceed, including whether to accept a plea to a lesser offence such as careless driving. If Alex were convicted, either following a plea or a trial, the court would impose punishment. In contrast, if Alex were sued by Yaman, Yaman would be the plaintiff and would decide how to proceed including whether to accept a settlement of the civil lawsuit. A settlement would typically for less than was sought in damages but would bring with it certainty concerning the amount to be paid and would avoid the time and expense associated with going to court. If Yaman did decide to proceed to court and Alex was found liable, the court would require that Alex pay damages. 9. Section 7 of the Charter guarantees that when the government interferes with a person‘s life, liberty, or security of the person, it must comply with the principles of fundamental justice. Instructor’s Manual to accompany Criminal Law and the Canadian Criminal Code 7e, by Barnhorst/Weaver/Embry Chapter 1 © 2023 McGraw Hill Ltd.
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Section 7 does not define the principles of fundamental justice. Instead, courts have identified the principles over time, on a case-by-case basis. This means that new principles of fundamental justice may be identified in future. The Supreme Court has held that the s 7 is substantive as well as procedural. Substantively, it would be a violation of s 7 if someone were convicted of an offence that itself violates the principles of fundamental justice – for example because it is arbitrary in that there is no connection between the object and the effect of the law creating the offence. Procedurally, it would violate s 7 for someone to be convicted and imprisoned if their trial was not fair. 10. a.
b.
A substantive rule is one that describes our rights and/or duties. Procedural rules describe how rights and duties are enforced. For example, the course requirements for graduating from a program are substantive. The rules that govern how to go about submitting a grade appeal are procedural. (i)
The definition of murder is substantive
(ii) The law governing how a search warrant is obtained is procedural (iii) The law that requires an appeal to be filed within a certain time limit is procedural 11. The ―holding‖ in a case is the decision of the court on the issue(s) before it. Most appellate decisions are made by a panel of judges. If the judges do not reach unanimous agreement, the majority opinion becomes the holding while the minority opinion(s) become the dissenting judgment(s). 12. R v A.M., 2008 SCC 19 R v Jarvis, 2019 SCC 10 R v Le, 2019 SCC 34 13. R v A.M. concerned high school students‘ reasonable expectation of privacy in the content of their backpacks. At the invitation of the principal, policy brought sniffer dogs into the school to search for drugs. They had no basis on which to believe that drugs were present and did not have grounds for a search warrant. The search took place while students were confined to their classrooms. The sniffer dog reacted to a backpack that had been left lined up against a wall in the gym. The police opened the backpack and found marijuana and psilocybin (magic mushrooms). The student who owned the backpack was charged with possession for the purpose of trafficking both drugs. At trial, he successfully sought to have the drug evidence excluded on the basis that his right to be secure against unreasonable search and seizure, guaranteed by s 8 of the Charter, had been violated. The majority of the Supreme Court (seven judges) agreed that the dog sniff amounted to a search and that it violated s 8 of the Charter. Six of those judges held that the evidence should therefore be excluded under s 24(2) of the Charter. Two of the judges (Deschamps and Rothstein JJ) dissented on the basis that the dog sniff did not constitute a search. Bastarache J dissented on the basis that although the trial judge had correctly determined that the search violated s 8, he erred in excluding the evidence.
Instructor’s Manual to accompany Criminal Law and the Canadian Criminal Code 7e, by Barnhorst/Weaver/Embry Chapter 1 © 2023 McGraw Hill Ltd.
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