Cases and Materials on Criminal Law And

Cases and Materials on Criminal Law And

Edited by M. L. FRIEDLAND
Copyright Date: 1978
Pages: 930
https://www.jstor.org/stable/10.3138/j.ctt2ttn81
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  • Book Info
    Cases and Materials on Criminal Law And
    Book Description:

    The book covers all aspects of the law from pre-trial to sentencing procedures, illustrated by cases, articles, notes, and diagrams.

    eISBN: 978-1-4426-7277-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Preface to the Fifth Edition
    (pp. v-v)
    M.L.F.
  3. PREFACE TO THE FOURTH EDITION 1974
    (pp. v-v)
  4. PREFACE TO THE THIRD EDITION 1970
    (pp. v-vi)
  5. PREFACE TO THE SECOND EDITION 1968
    (pp. vi-vi)
  6. Table of Contents
    (pp. vii-x)
  7. Table of Cases
    (pp. xi-2)
  8. CHAPTER ONE Introduction to Procedure
    (pp. 3-16)

    The Canadian Criminal Code, a federal statute, came into force on April 1, 1955 and is found in the Revised Statutes of Canada, 1970, chapter C-34, as amended. The Code contains 25 Parts, which in general can conveniently be divided into the following major categories:

    A. General Principles, Part 1;

    B. Offences, Parts 2-11;

    C. Procedure, Parts 12-25.

    All offences under the Criminal Code can be categorized according to the procedure employed for trying the case: “summary” (an offence triable by the summary conviction procedure) or “indictable” (an offence triable by indictment) or both, for certain offences, with the Crown...

  9. CHAPTER TWO Pre-Trial and Related Procedures
    (pp. 17-152)

    A person accused of an offence against the Criminal Code may be given an appearance notice, or summoned, or arrested with or without a warrant. An appearance notice is issued by a police officer and given to the accused. For a summons or an arrest with a warrant, the complainant (who is usually a police officer) would first have gone before a justice of the peace to initiate proceedings (see section 455.3 of the Code); an arrest without a warrant requires no judicial authorization. A person arrested without a warrant may be given an appearance notice by the arresting officer...

  10. CHAPTER THREE Certainty: Codification of Offences; Common-Law Crime and Conspiracy
    (pp. 153-203)

    The history of the Canadian Criminal Code is briefly stated in the following extract from Mewett, “The Criminal Law, 1867-1967” (1967) 45Can. B. Rev.726 at pp. 726-730 (footnotes have been omitted):

    “The Federal Parliament of Canada was quick to act on the criminal law powers ascribed to it under the British North America Act (“the criminal law, including the procedure in criminal matters”) and to begin the task of consolidating the overwhelming mass of previously existing colonial laws. These were made up basically of common law importations as applicable to colonial conditions, but there was also a substantial...

  11. CHAPTER FOUR Morality and the Criminal Law
    (pp. 204-253)

    The report of the committee on homosexual offences and prostitution (the Wolfenden Report) (U.K., 1957) states in part in relation to homosexual offences:

    “ … Our primary duty has been to consider the extent to which homosexual behaviour and female prostitution should come under the condemnation of the criminal law, and this has presented us with the difficulty of deciding what are the essential elements of a criminal offence. There appears to be no unquestioned definition of what constitutes or ought to constitute a crime. To define it as “an act which is punished by the State” does not answer...

  12. CHAPTER FIVE The Criminal Act: External Circumstances of the Offence
    (pp. 254-305)

    InScofield(1784) Cald. 397 Lord Mansfield C. J. stated: “So long as an act rests in bare intention, it is not punishable by our laws. …” What is the reason for this rule?

    Smith and Hogan, criminal law (3d ed., 1973) at pp. 30-31:

    “It is only by looking at the definition of the particular crime that we can see what circumstances are material to theactus reus. We find this definition, in the case of common law crimes, in the decisions of the courts and, in the case of statutory crimes, in the words of the statute, as...

  13. CHAPTER SIX Attempt and Related Problems
    (pp. 306-379)

    HYDE J.: Appellant has appealed from his conviction in the Court of Queen’s Bench, Crown Side, sitting in the District of St. Hyacinthe, on July 7, 1959, for attempted murder, the charge reading:

    “That on or about 17th May 1958 at St. Hyacinthe, in the District of the same name, Ronald Tousignant, in escaping from the St. Hyacinthe common gaol, in which he was lawfully detained, unlawfully attempted to commit murder on the person of Donat Levesque, warden of the St. Hyacinthe prison, by striking him on the head with the aid of a blunt object, in contravention of s....

  14. CHAPTER SEVEN Quantum and Burden of Proof
    (pp. 380-403)

    VISCOUNT SANKEY L.C. (for the Court): My Lords, the appellant, Reginald Woolmington, after a trial at the Somerset Assizes at Taunton on January 23, at which, after an absence of one hour and twenty-five minutes, the jury disagreed, was convicted at the Bristol Assizes on February 14 of the wilful murder of his wife on December 10, 1934, and was sentenced to death. He appealed to the Court of Criminal Appeal, substantially upon the ground that the learned judge had misdirected the jury by telling them that in the circumstances of the case he was presumed in law to be...

  15. CHAPTER EIGHT The Mental State: Requirements of Culpability
    (pp. 404-456)

    In THE QUEEN v. TOLSON (1889) 23 Q.B.D. 168 (Ct. for Cr. Cases Reserved), STEPHEN J. stated, with respect to the phrase “non est reus, nisi mens sit rea”: “Though this phrase is in common use, I think it most unfortunate, and not only likely to mislead, but actually misleading, on the following grounds. It naturally suggests that, apart from all particular definitions of crimes, such a thing exists as a ‘mens rea,’ or ‘guilty mind,’ which is always expressly or by implication involved in every definition. This is obviously not the case, for the mental elements of different crimes...

  16. CHAPTER NINE Strict Responsibility
    (pp. 457-490)

    Appeal by defendant from the judgment of Brown C.J.K.B., refusing defendant’s application to quash the Summary Conviction made by the Magistrate under the Sask. Temperance Act, 1917, c. 23, s. 35.

    TURGEON, J.A. (with whom HAULTAIN C.J.S. agreed): The appellant is a vendor of soft drinks at Moosomin. On December 6th, 1920, a police officer, acting under a search warrant, found upon his premises three bottles of beer which were shown upon analysis to contain more than 1.13% of alcohol per weight. This beer was, therefore, an “intoxicating liquor” within the definition of the Saskatchewan Temperance Act, and an information...

  17. CHAPTER TEN Mistake of Fact
    (pp. 491-510)

    Jones had sexual relations with a girl he had met that night in a downtown restaurant. Jones assumed that the girl was a prostitute and was over 18 years of age. In fact, she was only 17 — and indeed looked no more than 16 — and was of “previously chaste character.” The girl became pregnant and Jones is charged with seduction of a female between the ages of 16 and 18 contrary to section 151 of the Code. Will Jones be convicted?

    The following case was stated by Denman J. for the consideration of the Court for Crown Cases...

  18. CHAPTER ELEVEN Ignorance of the Law
    (pp. 511-532)

    Section 19 of the Code provides: “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.”

    The prisoner was tried before Lord Eldon, at the Admiralty sessions, December 1799, on an indictment for wilfully and maliciously shooting at Henry Truscott.

    It appeared in evidence, that on the 27th of June, 1799, the prisoner was the captain of a vessel called the “Langley,” a letter of marque; that about 130 leagues from Falmouth, on that day, he discovered in the morning, and fell in with another vessel called the “Admiral Nelson,” sailing...

  19. CHAPTER TWELVE Vicarious and Corporate Liability
    (pp. 533-545)

    Smith and Hogan, criminal law (3d ed., 1973) at pp. 114-115:

    Strict Liability and Vicarious Liability Distinguished. Vicarious liability is by no means the same thing as strict liability. The point requires emphasis for there is an unhappy judicial tendency to confuse the two concepts. A statute may requiremens reaand yet impose vicarious responsibility. It has already been noted that supplying liquor to a constable on duty is an offence requiringmens rea, yet a licensee may be vicariously liable for his servants’ act in so doing and the same considerations apply to the offence of suffering gaming...

  20. CHAPTER THIRTEEN Drunkenness
    (pp. 546-581)

    Your client is charged with rape. The accused’s story is that he had been drinking heavily (between 10 and 15 bottles of beer) before the incident and had then met a girlfriend with whom he had had sexual relations on a previous occasion. He admits that he had intercourse with her on this occasion but says that she consented.

    The trial judge’s charge to the jury started with the usual preliminary discussion of burden of proof, reasonable doubt and presumption of innocence. He then reviewed the facts of the case in great detail, followed by a discussion of the essential...

  21. CHAPTER FOURTEEN Insanity
    (pp. 582-643)

    The MENTAL HEALTH ACT, R.S.O. 1970, c. 269, provides:

    1.—(f) “mental disorder” means any disease or disability of the mind; …

    8.—(1) Any person who,

    (a) suffers from mental disorder of a nature or degree so as to require hospitalization in the interests of his own safety or the safety of others; and

    (b) is not suitable for admission as an informal patient, may be admitted as an involuntary patient to a psychiatric facility upon application therefor in the prescribed form signed by a physician.

    (2) It shall be stated and shown clearly that the physician signing the application personally...

  22. CHAPTER FIFTEEN Automatism
    (pp. 644-684)

    Your client Green is involved as the driver of a car in a fatal accident while driving home from his office late one evening. Green’s car suddenly swerved to the left into the path of an oncoming car, killing the driver.

    Green is charged with a number of offences arising out of the accident ranging from careless driving under the Highway Traffic Act to manslaughter.

    Green claims that he was driving properly and then had a momentary “blackout.” Green’s doctor tells you that Green may well have had a brief epileptic fit (petit malor minor epilepsy), but (as is...

  23. CHAPTER SIXTEEN Some Aspects of Excusable Conduct: Necessity, Duress, and Self-Defence
    (pp. 685-721)

    The American ship William Brown, left Liverpool on the 13th of March, 1841, bound for Philadelphia, in the United States. She had on board (besides a heavy cargo) 17 of a crew, and 65 passengers, Scotch and Irish emigrants. About 10 o’clock on the night of the 19th of April, when distant 250 miles southeast of Cape Race, Newfoundland, the vessel struck an iceberg, and began to fill so rapidly that it was evident she must soon go down. The long-boat and jolly-boat were cleared away and lowered. The captain, the second mate, 7 of the crew, and 1 passenger...

  24. CHAPTER SEVENTEEN The Trial Process
    (pp. 722-803)

    Some of the various steps in a criminal trial are looked at in this chapter. The TRUSCOTT case has been chosen for intensive examination because of the great number of problems which it covers and because many persons feel that the case raises serious questions about the adequacy of our system of justice.

    A lengthy recitation of the facts leading to the Reference to the Supreme Court of Canada is contained in both the majority judgment and in the dissent by Hall J. The following brief description of the facts is taken from the introductory part of the majority judgment...

  25. [Illustration]
    (pp. None)
  26. CHAPTER EIGHTEEN Double Jeopardy
    (pp. 804-862)

    For a detailed discussion of the points raised in this chapter see Friedland, double jeopardy (1969).

    Accused was charged with leaving the scene of an accident contrary to s. 221(2) [now s. 233(2)] of theCr. Codewhich is an offence which may be dealt with either summarily or on indictment. The information, on its face, showed however that more than 6 months had elapsed since the date of the accident and hence the institution of summary proceedings was barred by s. 693(2) [now s. 721(2)] of theCode. Nevertheless the Crown was put to its election and elected to...

  27. CHAPTER NINETEEN Sentencing
    (pp. 863-912)

    In the Manitoba case ofRegina v. Motuz and Motuz(1964) the accused parents locked their only children, aged 4 and 5 years, alone in a farm house (which was on the prairie approximately three-quarters of a mile from the closest neighbour) and went to a beer parlour where they spent several hours (from 3.40 p.m. until around 7.00 p.m.). In their absence the house caught fire (at approx. 7.00 p.m.) and the children were burned to death. The accused, who were conscience-stricken and remorseful, pleaded guilty before a magistrate to a charge of abandoning their children, contrary to s....

  28. Supplementary Material: Bill of Rights
    (pp. 913-928)
  29. Index
    (pp. 929-933)