Sources of Criminal Law

Question 1

Where does the criminal law power come from?

Answer 1

1. The Constitution
2. The Criminal Code
3. There are provincial offences but no provincial crimes
   
   • You can go to jail for provincial offences but the max sentence is 2 years - 1 day and there’s no criminal record
4. State power cannot be exercised without justification
   
   • Has to be pursuant to some legal rule conferred by statue or common law

Question 2

R v. Morgentaler

Answer 2

Issue: Did the province of Nova Scotia infringe on the domain of the fed gov when they regulated abortions?
Holding: Nova Scotia tried to criminalize abortions when they didn’t have the power to do so.

Question 3

R v. Jobidon

Answer 3

Issue: Can the consent of the victim be a defence for the crime of assault?
Holding: A person’s consent is irrelevant in certain situations such as death.
Ratio: When a person causes non-trivial bodily harm to another in the process of a socially undesirable action, the role of consent is limited.

Question 4

R v. Paré

Answer 4

Issue: Did Paré murder the child “while committing” the assault?
Holding: It was one continuous act since Paré held onto the boy throughout, parliament wanted to legislate against people dominating other people.
Ratio: When the act of domination is temporally and physically related to a murder, that is murder in the 1st degree.

Question 5

R v. Labaye

Answer 5

Issue: Were the acts perpetrated “indecent”?
Holding: Not indecent according to the test.
Test
1. The nature of the crime is not tolerated by (the laws of) society
2. The degree of the crime is incompatible with a functioning society

Question 6

Two Models of the Criminal Process

Answer 6

1. The Crime Control Process
   
   • Similar to an assembly line, makes the process easier and more efficient
2. The Due Process Model
   
   • Similar to an obstacle course where the state must pass many hurdles to ensure they are prosecuting wrongdoers, not innocent people