Law Foundations – Law is Cool The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 1338880 August 1: A Day Of Remembrance Sat, 01 Aug 2009 19:04:06 +0000 This is part of the Middle Passage Law Series and is cross posted on Commercial Law International.

Why am I wearing all black today?

Am I in mourning? No, not exactly. Then why?

Well it is August 1: Emancipation Day. Remember

I am wearing black today not to so much mourn but to remember. To remember that it was today 175 years ago that the British set my ancestors free – well in a manner, they still had six years of apprenticeship to look forward to. Why? Because being free people made them some how forget all the skills acquired during a lifetime of toil.  

The Slavery Abolition Act 1833 took effect one year after passage this day 1834 and outlawed slavery in the British empire – including British North America aka Canada – with the exception of all but a hand fully of territories.

So I remember – let’s remember together.

How to be a Good Lawyer Mon, 22 Jun 2009 01:30:52 +0000 Professor Morton is a prof of mine, a down-to-earth, approachable professor and I think it’s impossible not to agree with his article: The duty to represent even the unpleasant client”

I’d just like to add that perhaps he’s directing his article towards those “reputable,” established, and well-known lawyers as equally as towards new lawyers.

Yes, everyone is entitled to fair justice, should receive representation, as Professor Morton cited,
“It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full hearing to be in the right.”

However, even when you have two potential litigation clients, one with a valid claim, the other trivial, and both able to satisfy a lawyer’s financial retainer requirements, a new lawyer trying to make it out on his own – who has experience – but wants to make a name for himself compared to a “reputable lawyer” will have a different mindset when approached by the potential client, no?

Obviously, both would like to win their client’s case and ensure justice is served, but would a new lawyer trying to make it out on his own want to spend as much time on a “Sure winner” than a “marginal” case? Would a reputable lawyer be able to “afford” more time on a marginal case?

Yes, I agree everyone has to start somewhere, and at the same time not bring the profession of law into disrepute. But when a new lawyer on his or her own has school loans/debts to repay and is attempting to establish a reputation I think ultimately the altruistic representation of a client by a lawyer will suffer, maybe a little, or maybe not.

The US has a population of 300 million, with a number of lawyers that represent that population. This dwarfs the representation of the 33 million Canadians by the number of lawyers that the 25 or so law schools in Canada spit out. As a Canadian in a US law school, the competition in US law schools is furious, in addition to competition amongst established lawyers for the “almighty dollar” is just as if not more fierce. Maybe that’s what helps form this view.

Maybe the “ambulance chasers” or for those who just want to establish themselves (choosing or devoting more time towards sure-winners than marginal cases), may not be as prevalent in Canada as I think I see in the US.

In the end, as lawyer’s we’re supposed to stick up for society, represent society, not cheat society. I agree with Professor Morton, but everything is susceptible to nuances.  Perhaps I am stating the obvious and being a realist, but yes, ideally lawyers shouldn’t put the “almighty dollar” to the forefront, because it’s much more difficult to curb such practices than you think – Justice Archibald.

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What’s in a Name? Thu, 30 Oct 2008 02:10:41 +0000 Middle Passage Law Series

“What’s in a name?”

Answer: something, nothing or perhaps everything.

The Middle Passage name was carefully chosen and is the everything of the series. A little confused, let me explain.

YES, I will make the admission right away, the name is intentionally provocative – just like the issue of race and the law. However, the name is not meant to be negative in any way; instead it is meant to provoke thought and meaningful discussion.

For those of you who are still puzzled as to the exact meaning of the name – I sure some of you have figured it out already, at least in part.

In the simplest of terms the Middle Passage Law name comes from the Middle Passage.


I know I know it’s a circular definition but I can’t help it, I am a future lawyer after all.

The choice of the name is the best way, in my opinion, to make a direct connection between one of the most sinister chapters in our history – and “our” is being used here not just to mean Black/African but Canadian, indeed the world – and today’s social, political, economic and legal realities. What is this connection you may ask?

Answer: the African slave trade and its continuing legacy.

The Middle Passage and the African slave trade are so intimately connected that one cannot address one without addressing the other.

Oh No! That feeling of discomfort or elation that you felt in the series opener is back again isn’t it. You might even be thinking: ‘Here we go again! It’s always about slavery. It happened sooooo long ago, why not just get over it’ or ‘I am over it?’

Ok, ok, just relax, collect yourself and keep on reading, it will all be worth it. Trust me.

Before I respond to that – and I think my response is going to shock a lot of people – I must first give a less circular definition of the Middle Passage. To brief the Middle Passage, is the perilous voyage Africans where forced to take – to put it mildly – from West Africa to the New World to be sold into slavery.

The Middle Passage helps to explain – generally and very over simplistically – why there are Black people in the western hemisphere. However, and more importantly, its history and continuing legacy helps to explain why these people are a marginalized group.

Well, that’s enough of the history and sociology lesson but it was necessary for context.

‘So what does that have to do with me?’ Perhaps you are not black or perhaps you are but you are not a descendant from those who made the Middle Passage voyage.

Answer: everything.

Yes, everything, as hard as this maybe for some of you to believe.

For those of you that are Black but not descendant from the Middle Passage, the everything for you lies in the simple fact that you are Black. Yes I said: Black!

You, well at least some of you, may say well Yes but a different Black and you would be fully entitled to that label – if you want it. The Black community after all isn’t a monolith and the diversity within the community has to be accounted for, celebrated and respected.

Fair enough, different yes but Black none the less.

It matters little that you and or your bloodline has come relatively recently and directly from Africa, the Middle Passage directly affects you. Don’t take my word for it, take a minute and simply reflect on your own experiences in Canada.

Are you with me now? Well, I hope so. If not, this should help.

You know that feeling of exclusion or marginalization you have often felt – No, still not with me.

Ok, what about that feeling of having to prove or validate yourself constantly and many times over that of your colleagues – No or……. well maybe, am I getting closer?

Well, this should do the trick.

What about that feeling of responsibility and worse yet, normality, you are made to bear whenever a Black person is accused of a crime, while your successes and the successes of others like you are dismissed as being an irregularity or even worse yet, good for a Black person – Aha! With me now – good!

For those of you that are not Black you may think that the legacy of the Middle Passage is not yours or that it does not directly impact you. Well, you couldn’t be more wrong, it has everything to do with you.

‘What!! How could this be?’

Firstly, the history of slavery in Canada is well documented and the Middle Passage is undeniably interwoven in to the fabric of Canadian social, political, economic and legal history.

I would like to take a moment just to add a perspective on what is often considered a boring topic – History, namely Legal History. Legal History is any thing but boring, but that is simply my nerdish opinion. However, what is not opinion but fact is that legal history for student, academic and practitioner alike is always contemporary.

Legal history is always contemporary?

Yes, contemporary.

But how?

Answer: Precedents.

The study, the teaching and the practice of law are all exercises in Legal History.

Precedents are legal history, and as a corner stone of the Common Law are central to our concept and conception of justice. Thus, whether studied, taught or applied Precedents always bring legal history to the fore.

Secondly, we all live in Canada and what affects one segment of our society affects us all. If you don’t believe that or worse yet you don’t live, study or work like it’s true, it is a sad day for the legal profession, nay, Canadian society.

The sad part is not that you will not address, empathize or advocate Black or other diversity community issues and concerns but that you will not address, empathize or advocate for yourself.

‘What!! How does that work?’

What needs to be understood and often isn’t, is that by standing for justice, equality and diversity you are in fact standing for yourself. And I am not simply being altruistic here, though I must confess altruism is a factor.

The point to understand here is that you may or may not ever be in the majority but you will always belong to a minority of some sort – in thought, belief, opinion or expression. Therefore, unless you are prepared to defend the rights of others, your rights will never be secure.

The ancient Greek historian Thucydides puts it succinctly when he was asked when will justice come to Athens and he replied:

Justice will not come to Athens until those who are not injured are as indignant as those who are injured.

Now as to a response to the comment posed earlier that: ‘it’s always about slavery. It happened sooooo long ago, why not just get over it’ or ‘I am over it?’ Well, for now I say:

Stay tuned.

Britney Lacks Necessary Mental Element Sun, 22 Jun 2008 13:11:14 +0000 A reporter recently pressed charges against Britney Spears for running over his foot with her car.

But on Friday, Deputy District Attorney Joseph D. Shidler said,

[the] only way the victim’s foot could have been where the video indicates it to be was by the victim placing it in that location.

Shidler had reviewed photos and videos from last year to assess her liability, and noted that she was driving very slowly in a straight path, surrounded by reporters with lots of noise and confusion.

Furthermore, Britney claims not to even remember the incident.

britney spearsIt’s not the first time she’s gotten in trouble while driving. In 2006, a scandal erupted when she was spotted driving with her child on her lap, and last year she had a misdemeanor hit-and-run charge in a parking lot.

Earlier this year she had an accident on the Los Angeles freeway.

But Brittney lacks the mens rea, or the mental element necessary for guilt for offence in this most recent incident.

There are some criminal acts that do not require mens rea at all, including absolute liability offences and some regulatory offences.

But otherwise the mental state or subjective awareness in a state of mind is needed in addition to the act requirement, or actus reus, component of the offence. The mental state also includes:

  1. intention
  2. knowledge
  3. willful blindness
  4. recklessness

In Fagan v. Metropolitan Police Commissioner [1969] 1 QB 439, the defendant was pulled over by PC Morris, but stopped too far from the curb. The officer directed him to a specific location, and accidentally drove over the officer’s foot.

Morris exclaimed,

Get off, you are on my foot!

But Fagan turned off his ignition and said,

F*** you, you can wait.

After repeating the request several times, Fagan finally complied.

Fagan was charged with “Assaulting a constable in execution of his duties,” but he appealed as he had not initially run over the cop’s foot on purpose.

Although the court agreed that assault cannot be committed by omission, this assault occurred as a continual act of battery. Fagan developed the necessary mental element by continuing to keep the car on the officer’s foot.

The conviction was upheld.

The court said,

On the facts of the present case, the ‘assault’ alleged involved a ‘battery’. Where an assault involved a battery, it matters not, in our judgement, whether the battery is inflicted directly by the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender. An assault may be committed by the laying of a hand on another, and the action does not cease to be an assault if it is a stick held in the hand and not the hand itself which is laid on the person of the victim. So, for our part, we see no difference in principle between the action of stepping on to a person’s toe and maintaining that position and the action of driving a car on to a person’s foot and sitting in the car while its position on the foot is maintained.

This case was cited in the Supreme Court in R. v. Cooper, [1993] 1 S.C.R. 146 in assessing the contemporaneity of the mental and act element for a drunken person who accidentally strangled a friend

Had Brittney deliberately run over the reporter’s foot, or found out about it and kept the car in place, she may have been found guilty.

This time at least, we’re going to leave Britney alone.

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Unconscionable Organ Donations Mon, 11 Feb 2008 01:49:21 +0000 “Dr. Horror” Captured

An internationally wanted physician from Brampton, Ontario, was caught in Nepal last week.

Dr. Amit Kumar was wanted for harvesting organs from poor Indians, usually sold to more affluent people, including international citizens.

An Ethical Debate

The Kumar incident has sparked an ethical dialogue over organ donation.

Andrew Chung of The Star states,

Some libertarians would say that as individuals, we should be able to choose, if we so desire, to sell one of our two kidneys. It’s my kidney, after all, and I can do what I like with it.

Chung quotes Michael McDonald, of the W. Maurice Young Centre for Applied Ethics,

It’s not just another piece of property that we own, like a watch…

Who owns the body? There are just some things that are not to be bought or sold, not marketable quantities.

Chung also cites Leigh Turner, McGill University professor at the Biomedical Ethics Unit,

If a decision is uncoerced, if no one’s forcing you, you should be in a position where you can make the choice and live with the consequences…

But once you add poverty and real inequality to the mix, suddenly choice and autonomy starts to look a lot murkier.

Leigh’s last point refers a form of procedural unconscionability, a classical concept in the equitable courts of common law used to protect vulnerable parties. Equity was distinguished from the rest of common law by its intense focus on ethical issues to achieve justice.

Using the case of Dr. Kumar can help illustrate some of the principles of this equitable doctrine.

Defining Procedural Unconscionability

Procedural unconscionability is a type of equitable fraud, not involving a misrepresentation of facts, but rather through the conduct of one party in obtaining assent.[1]

Conduct is evaluated by examining whether parties meet on equal terms, and if they were taken advantage of as a result.[2]

The court can consider this a form of equitable duress which can produce an unfair result and therefore set aside to avoid perpetuating injustice.[3]

In addition to the reasonableness, the court will look at how equitable a transaction is, and how conscientious the other party is.[4]

Unconscionability therefore does not require deceit, and can be caused by distress, recklessness, wildness, or carelessness. [5] The characteristics of the relationship between the parties are also inconsequential for the purposes of unconscionability.[6]

Two Elements of Unconscionability

The presumption of fraud is established through a proof of inequality of bargaining power, and an undue advantage or benefit that impairs the weaker party from protecting their own interests.[7]

This can commonly occur between two parties where one is astute in business, and the other is older and vulnerable, and the former use their power over the other to their advantage.

Elements identified as criteria for vulnerability include ignorance, need or distress.[8]

Community Standards Test

Despite their interests in protecting vulnerable parties, the court does encourage to take responsibility for their own lives and decisions.[9] This balance is achieved by looking at the broader context in which the contract occurs through a community standards test.

A British Columbia Court of Appeal case found that a transaction between a businessman and a Native fisherman was unconscionable, and rescinded it as it impugned commercial realties.[10]

This has been followed by courts in other jurisdictions, specifically looking at the tactics used to obtain the contract. A more recent case from the B.C. Court of Appeal affirmed the use of the given views of a community,[11] but the dissent preferred assessing only if it was fair, just and reasonable.[12]

Awareness of Party
Another element of unconscionability is the potential need for the stronger party to be aware of the other’s vulnerability.

Canadian courts are largely silent on this issue, but the current status is that it is not considered material whether the stronger party was unaware of the other’s weakness, or even if they had no notice or indication that such weakness might be present.[13]

Procedurally Unconscionable

Harvesting organs from poor people in India obviously relies on immense inequalities in bargaining power. The benefit received from by the donee is claimed to be offset by the substantial amount of compensation provided to the donor, which is even more significant when Westerners pay in their funds. But Turner also stated,

Some of the poorest people on the planet, can they really be making an autonomous choice that by not selling the kidney they can’t buy food to eat? It’s really not a free choice of any kind.

It’s also important to note that some of the harvestees were explicitly unwilling, and all of the cases expressed signs of economic disadvantage. Dr. Kumar would have known of the obvious inequality of bargaining power between himself and the impoverished persons of India, irrespective of this issue in different jurisdictions.

Although libertarian ideology seeks to maximize the rights of the individual, in many instances – including this one – it surpasses legal constraints. The criteria in this case and the standards of the international community at play all make this type of exploitation unconscionabile.



[1] CIBC v. Ohlson (1997), 209 A.R. 140 at para. 20.

[2] Wood v. Abrey (1818), 56 E.R. 558 (Ch.).

[3] Stewart v. Canada Life Assurance Co. (1994), 132 N.S.R. (2d) 324 at 334 (N.S.C.A.).

[4] Campbell v. Campbell (1990), 83 Nfld. & P.E.I.R. 340 at 349 (Nfld. U.F.C).

Stel-Van Homes Ltd. v. Fortini (2001), 16 B.L.R. (3d) 103 at paras. 125-127 (Ont. S.C.J.).

[5] Waters v. Donnelly (1884), 9 O.R. 391 at 401-402 (Ch.).

[6] Black v. Wilcox (1976), 12 O.R. (2d) 759 at para. 196 (C.A.).

[7] Bank of Credit & Commerce International v. Aboody (1990), 1 Q.B. 923 at 924 (Q.B.D.).

[8] Supra note 3 at para. 4.

[9] Pelech v. Pelech (1986), 1 S.C.R. 801 at para. 85.

[10] Harry v. Kreutziger (1978), 95 D.L.R. (3d) 231 (B.C.C.A.).

[11] Gindis v. Brisbourne (2000), 183 D.L.R. (4th) 431 (B.C.C.A.) at paras. 23-27.

[12] Ibid. at para. 35. Though upheld at the Supreme Court of Canada, the distinction between the two tests and which of the two was superior was not reviewed.

[13] Marshall v. Canada Permanent Trust Co. (1968), 69 D.L.R. (2d) 260 (Alta. S.C.).

How to Case a Brief (non-traditionally) Fri, 25 Jan 2008 01:55:01 +0000

The Non Traditional Law Student blog, from the Thomas M. Cooley law school in Michigan, has a series on how to case a brief, an essential skill for any new law student.

Here are the direct links:

Part 1

Part 2

Part 3 (The Issue)

Part 4 (Facts and Rules)

Part 5 (Analysis)

Part 6 (Conclusion)

A Graphic Depiction of Law and Justice Mon, 21 Jan 2008 07:35:07 +0000

Circle = Justice; law be understood and exercised under its order

Square = Law, limited by the circle

Triangle = How law is implemented to exercise Justice

The author explains,

The figures are placed in an interdependent relationship, in a way that the one that dominates and encircles everything is the sphere. Nor the Law nor its exercise may go past the boundaries of Justice.

LOTR and Legal History Tue, 25 Dec 2007 18:32:40 +0000 Lord of the RingsGwen Seabourne of the University of Bristol School of Law has an interesting article on legal history as it is used in the Lord of the Rings at Common Lawyer.

The Oath

Binding oaths are used in LOTR, which are enforceable well after death following Norse and Anglo-Saxon traditions:

Ritual oaths were called a compurgation, because the person would purge themselves of charges, a tradition that remained in English debt law until the 1600’s.

Professional oath takers would place a straw in their shoe, giving way to the term “straw man,” which still has implications to debt law today.

Medieval RemediesGrettir the Strong

The paying of reparations for homicide, wrongful death, or other serious crimes was a principle in Nordic and Anglo-Saxon law known as weregild (from Old English: wer, man; geld, payment).

The 13th-14th c. Icelandic saga of Grettir the Strong relates a story of a warrior turned outlaw. Grettir proposes weregeld for killing of one of the characters in chapter 27,

Fain am I that those who have made me an outlaw should have full pay for this, ere all be over.

The Kingdom of Rohan, analogous to the medieval Saxon kingdom of Mercia, used the law of weregeld, as did its Riders and the dwarves.

Isidlur, the second king of Gondor and Amor, claimed the One Ring after cutting it from Sauron’s hand as a form of weregeld for his brother and father’s death.

Oaths were also used by Anglo-Saxons to swear mutual protection over households for blood feuds prior to the Normal conquest in 1066.

Seaborne also raises similarities with the Hundred Years’ War (1337 to 1453) between England and France in the protection extended to heralds and ambassadors.

Blood feuds were commonly used in early Medieval times for disputes over contested property.

Property Law

The premise of most of the trilogy centers around various property claims over the Ring, which include:

  • Gollum, because it was gifted to him as a present
  • Aragorn’s right to inheritance from Isildur
  • Sauron, as the original owner, and through accessio by mixing it with other metals under the doctrine of accession

Sauron had originally forged the ring during the Second Age, presumably from gold and some other unknown metals.

Under ancient Roman property law of accession, when two things are united to become a dramatically new thing, old property in the thing is extinguished.

Silsbury v. McCoon (1850) stated,

[I]t is said that the owner may reclaim the goods so long as they may be known, or in other words, ascertained by inspection.

Saruon’s claims as a dispossessed prior possessor would be countered by Gollum and Aragorn by a defence of abandonment or limitation.

Roman law allowed abandonment allowed extinguished property through abandonment, but in contemporary law it would be evaluated slightly differently.

Stewart v. Gustafson (1998) outlined 4 things to assess abandonment:

  1. Passage of time
  2. Nature of transaction
  3. Property holder’s conduct
  4. Nature of the thing

Although 2,500 years had passed, Sauron could not claim to have given up looking for the Ring, and had repeatedly expressed intent to exclude even when it was not under his physical control. Additionally, he was originally dispossessed through a violent act.

However, any legal recourse by Sauron could be barred under limitations legislation that would state that too long a time had passed before re-acquiring possesion.

Another application of property law is in land ownership. Most of Middle-earth operates under a feudal title, with barons acting as tenants-in-chief for a regent.

An exception would be Tom Bombadil, omitted from the films, who interestingly enough does not own any property in land but is also the sole character immune to the corrupting effects of the ring.Bad Elf

Civil Rights Law

The archaic society depicted by LORS is not renowned for their advocacy. In fact, specific racialized legislation appears to exist in a number of domains.

The LOTR creation story of Middle-earth, with the Two Trees of the Valinor, and the awakening of the Elves beside Lake Cuiviénen, has some classic pagan parallels.

The Nordic “World Ash Tree” Yggdrasil connected the Anglo-Saxon seven earthly worlds, which included lands of Elves (Alfheim) and Dwarves (Niðavellir). These worlds were in the “middle” between Asgard and Hel. Tolikien then Anglicized this to Elvenhome, and drew on the meaning of Niðavellir (dark fields) to place the Dwarves in the mountains.

The Elves appear to be the most racist and exclusionary of all the people in Middle-earth. For example, they have explicit anti-Dwarf laws and formally referred to them as Naugrim, or Stunted People, and more commonly as Dornhoth, for Thrawn (perverse; contrary) Folk.

This racism appears to harken back to an ancient conflict between the Elves and Dwarfs in the First Age, and the Elves apparantly never get over their prejudicial misconceptions.

But even prior to this conflict there is evidence of persecution by Elves. The first contact they had with Dwarves was with the “Petty Dwarves,” outcasts who were the Aboriginal inhabitants of Beleriand even before the First Age.

When the Elf colonial setters arrived in Beleriand they referred to the Dwarves as “two-legged animals,” and engaged in a campaign of systematic genocide to near-extinction of this group. Dwarves thereafter maintained a healthy suspicion and distrust for Elves.

Elves also cite racial supremacy as justification of their behaviour. Dwarves are not Children of Eru Ilúvatar, or created by the Supreme God of LOTR, who created Elves first before all other races.

The elves even appear rather obsessed with pure bloodlines and heredity.

But Seaborne comments how their blind support for a primogeniture model of succession differs from Nordic cultures, which always allowed for new people and new claimants to the throne, and evaluated the merit of individuals beyond their ancestry alone.

The Elves therefore appear more racialized than even archetypes found in Nordic or Germanic cultures.

As a typical feudalistic society, Seaborne comments on the limited role of women in LOTR.

The Others

Tolkien includes other exceptions to the classical Nordic and Anglo-Saxon models of law, possibly to highlight their differences for philosophical purposes.

The Hobbits, the only people humble enough to withstand the power of the Ring as carriers, are near-libertarians. They have little central authority beyond a Thain, or military leader, or legal system other than that of the Old King.

However, some parallels can still be drawn here as well. The Thane (sic) in Scandanavian and Anglo-Saxon society was a attendant, servant, retainer or official.

Shakespeare has Macbeth as the Thane of Glamis, reporting to King Duncan of Scotland. When Malcolm and Macduff later invade Scotland against King Macbeth, it is the thanes that defect to their side (Act V, Scene III):

5 All mortal consequences have pronounced me thus:
6 “Fear not, Macbeth; no man that’s born of woman
7 Shall e’er have power upon thee.” Then fly, false thanes,
8 And mingle with the English epicures!

Thanes were considered inferior to a member of the royal family, an aethel, but superior to an independent peasant landowner, or ceorl. The Normans confiscated most ceorl land when they invaded Britain.

Thanes were differentiated from ceorls by their weregeld, which was six times that of a ceorl. Ceorl is also the name of one of the Riders of Rohan.

Seaborne suggests that the Hobbits’ perspectives of the Old Law may harken back to Hywel Dda, a pre-Norman Celtic ruler in Wales that codified law c. 945. His rule was one of the few that achieved peace with the Anglo-Saxons.

Words of Wisdom

The character Gandalf plays a mentoring and leadership figure throughout LOTR. His role is to play (legal?) counsel to the people of Middle-earth, without dominating over them.

Seaborne suggests that Gandalf’s role is also foreshadowing of contemporary liberalism in legal theory regarding capital punishment.

He responds to Frodo‘s regret that Gollum did not die by saying,

Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment.

However, Gandalf has a tough side to him too. He criticizes the Elves for not successfully detaining Gollum and allowing him to escape.

But as Seaborne says,

Gollum, and, even more so, the Orcs [or Elves], are not amenable to rehabilitation.

And isn’t rehabilitation the ultimate purpose of the law?

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Limiting Absolute Liability Tue, 18 Dec 2007 21:54:06 +0000 Common Law Presumptions

Due to the challenges inherent to absolute liability offences, the Supreme Court provided that regulatory offences would be presumed as strict liability.

In R v. Sault Ste. Marie, the city was charged with allowing refuge to be dumped into public water ways of Cannon Creek and Root River. This pollution would be contrary to the The Ontario Water Resources Commission Act, R.S.O. 1970, c. 332, which at that time stated,

…every municipality or person that discharges, or deposits, or causes, or permits the discharge or deposit of any material of any kind into any water course, or on any shore or bank thereof, or in any place that may impair the quality of water, is guilty of an offence and, on summary conviction, is liable on first conviction to a fine of not more than $5,000 and on each subsequent conviction to a fine of not more than $10,000, or to imprisonment for a term of not more than one year, or to both fine and imprisonment.

Creating a Third Category of Offences

The case had been taken to the Court of Appeal, who stated that mens reus was required, which is the distinguishing feature between absolute liability and strict liability. Dickson J. eluciated this distinction in his judgement:

…there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event…

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

True criminal offences would be under the first category, and public welfare offences would be prima facie under the second category as lacking the required mens reus.

Public welfare and regulatory offences would not be considered absolute liability unless explicitly stated by the statute in question. Dickson J. indicated that an individual who hires a company that dumps pollution would not likely be liable, but a company or munipality might be.

Criteria for determining inclusion in the third category of absolute liability were:

  1. overall regulatory pattern adopted by the Legislature
  2. subject matter of the legislation
  3. importance of the penalty
  4. precision of the language


The following year, the British Columbia Legislature created the Motor Vehicle Act. In 1979 the statute contained an explicit absolute liability offence for driving without a licence, irrespective of whether the driver knew of the suspension.

The constitutionality of this law was then challenged in the Re B.C. Motor Vehicle Act, and R v. Pontes as discussed previously.

These findings were importan because they established s.7 as substantive rights beyond produral rights of due process and beyond the intent of drafters of the Charter. It was later relied upon by R. v. Morgentaler to legalize abortion, and Chaoulli v. Quebec to challenge prohibitions against private health insurance.

R.I.P., Chief Justice Lamer Mon, 10 Dec 2007 15:04:38 +0000 One of the longest serving and most influential judges in Canadian history passed away recently. Chief Justice Antonio Lamer died at the age of 74.

He was most noted for his ruling over the Quebec Secession Reference, which concluded that the province could not unilaterally secede from Canada.