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KENT ROACH BENJAMIN L. BERGER
EMMA CUNLIFFE ASAD G. KIYANI
TWELFTH EDITION
This book has its origins in ML Friedland’s innovative teaching materials, Cases and Materials
on Criminal Law and Procedure, first published in 1967.
This edition retains the basic structure of previous editions. Following the pattern started
with the tenth edition, we continue to include fuller extracts of leading cases than appeared
in previous editions, while maintaining a manageable size for the volume as a whole. We have
also continued to include more secondary and contextual readings, giving students access to
scholarly and policy literature on the criminal law while enriching the text’s attention to issues
of Indigenous justice, racial and ethnic bias, gender in the criminal law, and other matters of
deep social importance to the criminal justice system.
The years have, in our view, confirmed the wisdom of Professor Friedland’s original decision
to teach criminal law in its broader procedural, theoretical, social, and institutional context. For
this reason, Part One of the book continues to contain, in addition to introductory chapters on
the sources of and limits on the criminal law, chapters on police powers and the trial process.
The first chapter on the sources of criminal law has been thoroughly revised to provide new
material on Indigenous law as well as on statutory interpretation. The chapter on police pow-
ers has been completely updated to examine issues of discriminatory profiling and arbitrary
detention in light of the Supreme Court’s decision in R v Le, 2019 SCC 34. Chapter 4 on the
trial process has been revised to reflect important and controversial changes to jury selection.
It also contains new contextual material on the critical issue of bail, as well as material on legal
ethics and professional responsibility, including prosecutorial discretion. We are well aware
that the chapters on police powers and the trial process are no substitute for a full course on
criminal procedure, but we have designed these chapters to introduce considerations of social
context and ethics, which are emphasized throughout the book.
In Part Two, we examine the fundamental principles of criminal liability. The first two chap-
ters of this part now examine conduct, or actus reus, followed by fault, or mens rea. Chapter 7
examines absolute and strict liability and provides new contextual material. Chapter 8 com-
pletes the part with an examination of the principle that ignorance of the law is not an excuse
and the limited exceptions to this principle.
Part Three on extensions of criminal liability remains an important feature of the book, explor-
ing accomplice, organizational, and inchoate liability. This includes an update to Chapter 11,
which addresses corporate criminal liability primarily by examining the choice to implement
ss 22.1 and 22.2 of the Criminal Code and the debates about how best to approach corporate
liability. Again, we appreciate that some instructors might wish to leave these topics to the end
of the course.
We continue to find it useful to study the complex and dynamic laws of sexual assault and
homicide on their own. These make up Part Four, which we call “the special part,” on sexual
assault and homicide. We have thoroughly revised and restructured this part to reflect the fun-
damental importance of R v Barton, 2019 SCC 33, while also providing important contextual
material from the recent National Inquiry into Missing and Murdered Indigenous Women and
Girls.
Part Five deals with defences, starting with the limited defence of provocation. This defence
raises the issue of how the law values strong emotions, such as rage, but not necessarily other
(arguably more praiseworthy) emotions, such as compassion. Mental disorder and automatism
continue to be examined together in one chapter because of their frequent interaction. Both
the chapters on intoxication and self-defence now contain more contextual material. The final
chapters in this part address duress and necessity.
Part Six consists of a completely revised chapter on sentencing and punishment. As before,
it pays particular attention to constitutional limits on sentencing and the system’s attempts to
respond to Indigenous overrepresentation within the criminal legal system. It now contains
new contextual material on the experience of imprisonment, drawing in part on the work of
the Truth and Reconciliation Commission.
We are indebted to Marty Friedland’s pioneering work in criminal law and procedure, and
to the faith that he put in us to continue these materials.
We are grateful for the significant contributions that Justice James Stribopoulos made to
previous editions. We understand his decision to focus on his judicial duties and wish him the
very best.
We are thrilled to welcome Professor Asad Kiyani of the University of Victoria to the editorial
team. He has made excellent contributions to this edition, and we look forward to working
with him on many future editions.
We owe a debt of thanks to a number of instructors who have used the book and offered
many helpful and generous suggestions. In this regard, would especially like to thank Profes-
sors Gerry Ferguson, Benjamin Goold, Lisa Kelly, and Lisa Kerr.
We are grateful to all at Emond Publishing for their hard work and commitment to this
project, and in particular we thank Danann Hawes for coordinating and directing the project;
Kelly Dickson and Darren Smith for their support and guidance as managing editors; Natalie
Berchem for her excellent work as production editor; and Michelle Waitzman, Tara Agnerian,
and Rebecca Russell for their work copy editing, typesetting, and proofreading this edition. We
have also been ably assisted by an outstanding set of students at Osgoode Hall Law School
who have worked closely with us in reviewing and editing this book; thank you to PhD student
Kenneth Grad and JD students Bryan Birtles, Alison Imrie, Meghan Rand, and Ramna Safeer
for their excellent work.
Finally, we respectfully and affectionately acknowledge the extent to which we walk in the
footsteps of “Marty”, aka ML Friedland CC, QC, the first editor of these materials, whose ori-
ginal vision of this book as one that would explore the criminal process in all of its facets still
very much guides us in our work.
KR
BLB
EC
AGK
June 2020
vi
A book of this nature borrows heavily from other published material. We have attempted to request
permission from, and to acknowledge in the text, all sources of such material. We wish to make spe-
cific references here to the authors, publishers, journals, and institutions that have generously given
permission to reproduce in this text works already in print. If we have inadvertently overlooked an
acknowledgment or failed to secure a permission, we offer our sincere apologies and undertake to
rectify the omission in the next edition.
Aboriginal Affairs and Northern Development Canada ME Turpel, “On the Question of Adapting
the Canadian Criminal Justice System for Aboriginal Peoples: Don’t Fence Me In” in Aboriginal
Peoples and The Justice System: Report of the National Round Table on Aboriginal Justice
Issues (Ottawa: Minister of Supply and Services Canada, 1993). Reprinted with permission of
Aboriginal Affairs and Northern Development Canada.
Canadian Bar Review Alan Mewett, “The Criminal Law, 1867-1967” (1967) 45 Can Bar Rev. Reprinted
with the permission of the Canadian Bar Review.
Canada Law Book T Archibald, K Jull, and K Roach, “The Changed Face of Corporate Criminal Lia-
bility” (2004) 48 Crim LQ. Reproduced by permission of Canada Law Book, a division of Thomson
Reuters Canada Limited.
Canadian Journal of Law and Society Efrat Arbel, “Rethinking the ‘Crisis’ of Indigenous Mass Im-
prisonment” (2019) 34 Cambridge University Press.
Carswell C Boyle, D Chunn, I Grant, “The Law of Homicide (Toronto: Carswell, 1999). Reprinted by
permission of Carswell, a division of Thomson Reuters Canada Ltd.
Carswell ML Friedland, “Criminal Justice and the Division of Power in Canada” in A Century of
Criminal Justice (Toronto: Carswell, 1984). Reprinted by permission of Carswell, a division of
Thomson Reuters Canada Ltd.
Carswell Martha Shaffer, “Coerced into Crime: Battered Women and the Defence of Duress” (1999)
4 Can Crim L Rev. Reproduced by permission of Carswell, a division of Thomson Reuters Canada
Limited.
Department of Justice Recodifying Criminal Law Report 31, Law Reform Commission of Canada
1987. Reproduced with the permission of the Department of Justice Canada, 2015.
Department of Justice Special Committee on Pornography and Prostitution (The Fraser Commit-
tee). Law Reform Commission of Canada, 1985. Reproduced with the permission of the Depart-
ment of Justice Canada, 2015.
Hart Publishing Benjamin L Berger, “Mental Disorder and the Instability of Blame in Criminal Law”
in Francois Tanguay-Renaud and James Stribopoulos, eds, Rethinking Criminal Law Theory: New
Canadian Perspectives on the Philosophy of Domestic, Transnational, and International Criminal
Law (Oregon and Portland: Hart Publishing, 2012). Reprinted with the permission of Hart Publish-
ing, an imprint of Bloomsbury Publishing Plc.
House of Commons The Challenge of Change: A Study of Canada’s Criminal Prostitution Laws.
Report of the Standing Committee on Justice and Human Rights. House of Commons (December
2006). Reprinted with permission.
Immediate Media Company HLA Hart, “Immorality and Treason,” The Listener, July 30, 1959.
Reprinted by permission of Immediate Media Company.
vii
Irwin Law David Layton and Michael Proulx, Ethics and Criminal Law, 2nd ed (Irwin Law: 2015).
Reprinted with permission.
Journal of Criminal Law and Criminology Sanford Kadish “The Criminal Law and the Luck of the
Draw” (1994) 84 Journal of Criminal Law and Criminology. Reprinted by special permission of
Northwestern University School of Law.
Law Society of Ontario “Defending a Criminal Case” (1969). Copyright 1969, The Law Society of
Ontario. Reproduced with permission of the Law Society of Ontario.
McGill Law Journal Benjamin L Berger, “Emotions and the Veil of Voluntarism: The Loss of Judg-
ment in Canadian Criminal Defences” (2006) 51 McGill LJ. Reprinted with the permission of
Benjamin L Berger.
McGill-Queens University Press Kent Roach, Canadian Justice, Indigenous Injustice: The Case of
Gerald Stanley and Colten Boushie (Montreal: McGill-Queens University Press, 2019). Reprinted
with permission of the publisher.
Michigan Law Review WJ Stuntz, “The Pathological Politics of Criminal Law” (2001) 100 Michigan
Law Review. Reprinted with the permission of the estate of William Stuntz.
National Inquiry into Missing and Murdered Indigenous Women and Girls “Deeper Dive: Crimin-
alizing and Incarcerating Indigenous Women” in Reclaiming Power and Place: The Final Report
of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019).
Oxford University Press G Fletcher, Rethinking Criminal Law (Little Brown: 1978). Reprinted by
permission of Oxford University Press.
Province of Manitoba Report of the Aboriginal Justice Inquiry of Manitoba (1991). Reprinted with
the permission of the Province of Manitoba.
Senate of Canada Honorable Rob Nicholson, Minister of Justice and Attorney General of Canada
addressing amendments to the Criminal Code before the Standing Senate Committee on Legal
and Constitutional Affairs on May 12, 2012. Reprinted with the permission of the Senate of
Canada.
Springer Publishing Company Dr Lenore Walker, The Battered Woman Syndrome (1984). Repro-
duced with permission of Springer Publishing Company, Incorporated in the format Book via
Copyright Clearance Center.
Supreme Court Law Review Gerry Ferguson, “The Intoxication Defence: Constitutionally Impaired
and in Need of Rehabilitation” (2012, 57 Supreme Court Law Review (2d) 111 at 135-37. Reprinted
with the permission of Gerry Ferguson.
The British Academy Sir Patrick Devlin “The Enforcement of Morals” (Maccabaean Lecture in Juris-
prudence of the British Academy, 18 March 1959), Proceedings of the British Academy volume
XLV © The British Academy 1960. Reprinted with permission.
UBC Law Review Isabel Grant “The Syndromization of Women’s Experience” (1991) 25 UBC L Rev.
Reprinted with permission of the UBC Law Review Society.
UBC Press Elizabeth A Sheehy, Defending Battered Women on Trial: Lessons from the Transcripts
(Vancouver: UBC Press, 2014). Reprinted with permission of the Publisher. © University of British
Columbia Press 2014. All rights reserved with the Publisher.
University of Toronto Press Lisa Kerr, “How the Prison Is a Black Box in Punishment Theory” (2019)
69 University of Toronto Law Journal. Reprinted by permission of the publisher.
University of Toronto Press Melanie Randall, “Sexual Assault Law, Credibility and ‘Ideal Victims’:
Consent, Resistance and Victim Blaming” (2010) 22 Canadian Journal of Women and the Law.
Reprinted by permission of the publisher.
University of Toronto Press Kent Roach, Due Process and Victims’ Rights: The New Law and Politics
of Criminal Justice (Toronto: U of T Press, 1999). Reprinted with permission of the publisher.
University of Toronto Press Kent Roach, “Mind the Gap: Canada’s Different Criminal and Consti-
tutional Standards of Fault” (2011) 61 UTLJ. Reprinted by permission of the publisher.
viii
Kent Roach, CM, FRSC is a professor of law at the University of Toronto. He is a former law
clerk to Justice Bertha Wilson of the Supreme Court of Canada and the editor of the Criminal
Law Quarterly. His 14 books include Canadian Justice, Indigenous Injustice (2019); Criminal Law,
7th ed (2018); and Due Process and Victims’ Rights (1999). He represented intervenors in
Golden, Latimer, Gladue, and Ipeelee and was appointed a member of the Order of Canada
for contributions as a scholar and advocate to the protection of human rights.
Dr Benjamin L Berger is a professor and the York Research Chair in Pluralism and Public Law at
Osgoode Hall Law School, York University. He earned his LLM and JSD from Yale University
as a Fulbright Scholar and served as law clerk to the Rt Honourable Beverley McLachlin, former
Chief Justice of Canada. An award-winning scholar and teacher, his research seeks to fore-
ground the experience of living within a culture of liberal legalism, with particular attention to
criminal and constitutional justice, law and religion, sentencing, and the law of evidence.
Dr Emma Cunliffe is a professor in law at the University of British Columbia. Her research
focuses on the operation of racial and gender bias in the criminal legal system, with a particular
interest in the role played by expert witnesses. A Killam Prize–winning teacher and member
of the Women’s Legal Education and Action Fund Legal Program Committee, Dr Cunliffe has
worked on several significant cases involving Indigenous women in the criminal legal system,
including R v Barton.
Dr Asad G Kiyani (LLB [Osgoode], LLM [Distinction] [Cantab], PhD [UBC]) is an assistant profes-
sor in law at the University of Victoria. His research focuses on the application of postcolonial
theory to international and domestic criminal law, legal pluralism, and comparative law.
Dr Kiyani is a recipient of the Antonio Cassese Prize for International Criminal Law Studies, the
Hessel Yntema Prize for Comparative Law, and teaching awards at both the University of Victoria
and the University of Western Ontario.
ix
xi
Chapter Seven Regulatory Offences and Absolute and Strict Liability . . . . 471
I. The Importance and Context of Regulatory Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . 472
II. The Early Fault Binary: Absolute Liability or Subjective Fault? . . . . . . . . . . . . . . . . . . . . . 478
III. The Emergence of Strict Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484
IV. Constitutional Considerations for Fault in Regulatory Offences . . . . . . . . . . . . . . . . . . . 491
xii
xiii
xiv
xv
xvi
xvii
xviii
Chapter Seven Regulatory Offences and Absolute and Strict Liability . . . . 471
I. The Importance and Context of Regulatory Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . 472
R v Wholesale Travel Group Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472
II. The Early Fault Binary: Absolute Liability or Subjective Fault? . . . . . . . . . . . . . . . . . . . . . 478
Beaver v The Queen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478
R v Pierce Fisheries Ltd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483
III. The Emergence of Strict Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484
R v Sault Ste Marie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484
IV. Constitutional Considerations for Fault in Regulatory Offences . . . . . . . . . . . . . . . . . . . 491
Re BC Motor Vehicle Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491
R v Wholesale Travel Group Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498
Additional Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507
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Gerth spake:
16. “Bid the man come in, | and drink good mead
Here within our hall;
Though this I fear, | that there without
My brother’s slayer stands.
[113]
Skirnir spake:
Gerth spake:
Skirnir spake:
Gerth spake:
Skirnir spake:
Gerth spake:
Skirnir spake:
[118]
[119]
Gerth spake:
Skirnir spake:
Gerth spake:
41. “Tell me, Skirnir, | ere thou take off the saddle,
Or farest forward a step:
What hast thou done | in the giants’ dwelling
To make glad thee or me?”
[120]
Skirnir spake:
Freyr spake:
43. “Long is one night, | longer are two;
How then shall I bear three?
Often to me | has a month seemed less
Than now half a night of desire.”
[107]
[Contents]
NOTES
[108]
Prose. Freyr: concerning his father, Njorth, and the race of the
Wanes in general, cf. Voluspo, 21 and note. Snorri thus describes
Njorth’s family: “Njorth begat two children in Noatun; the son was
named Freyr, and the daughter Freyja; they were fair of aspect and
mighty. Freyr is the noblest of the gods; he rules over rain and
sunshine, and therewith the fruitfulness of the earth; it is well to call
upon him for plenty and welfare, for he rules over wealth for
mankind. Freyja is the noblest of the goddesses. When she rides to
the fight, she has one-half of the slain, and Othin has half. When she
goes on a journey, she drives her two cats, and sits in a cart. Love-
songs please her well, and it is good to call on her in love-matters.”
Hlithskjolf: Othin’s watch-tower; cf. Grimnismol, introductory prose.
He said: both manuscripts have “Then Skathi said:” (Skathi was
Njorth’s wife), but Bugge’s emendation, based on Snorri’s version, is
doubtless correct.
1. My son: both manuscripts, and many editors, have “our son,”
which, of course, goes with the introduction of Skathi in the prose. As
the stanza is clearly addressed to Skirnir, the change of pronouns
seems justified. The same confusion occurs in stanza 2, where
Skirnir in the manuscripts is made to speak of Freyr as [109]“your
son” (plural). The plural pronoun in the original involves a metrical
error, which is corrected by the emendation.
4. Elfbeam: the sun, so called because its rays were fatal to elves
and dwarfs; cf. Alvissmol, 35.
16. Brother’s slayer: perhaps the brother is Beli, slain by Freyr; the
only other references are in Voluspo, 53, and in Snorri’s paraphrase
of the Skirnismol, which merely says that Freyr’s gift of his sword to
Skirnir “was the reason why he was weaponless when he met Beli,
and he killed him bare-handed.” Skirnir himself seems never to have
killed anybody. [113]
19. Apples: the apple was the symbol of fruitfulness, and also of
eternal youth. According to Snorri, the goddess Ithun had charge of
the apples which the gods ate whenever they felt themselves
growing old. [114]
21. Ring: the ring Draupnir (“Dropper”) was made by the dwarfs for
Othin, who laid it on Baldr’s pyre when the latter’s corpse was
burned (cf. Voluspo, 32 and note, and Baldrs Draumar). Baldr,
however, sent the ring back to Othin from hell. How Freyr obtained it
is nowhere stated. Andvari’s ring (Andvaranaut) had a similar power
of creating gold; cf. Reginsmol, prose [115]after stanza 4 and note.
Lines 3 and 4 of this stanza, and the first two of stanza 22, are
missing in the Arnamagnæan Codex.
27. Eagle’s hill: the hill at the end of heaven, and consequently
overlooking hell, where the giant Hræsvelg sits “in an eagle’s guise,”
and makes the winds with his wings; cf. Vafthruthnismol, 37, also
Voluspo, 50. The second line is faulty in both manuscripts;
Hildebrand’s emendation corrects the error, but omits an effective
touch; the manuscript line may be rendered “And look and hanker for
hell.” The Arnamagnæan Codex breaks off with the fourth line of this
stanza.
30. In Regius and in nearly all the editions the first two lines of this
stanza are followed by lines 3–5 of stanza 35. I have followed
Niedner, Sijmons, and Gering. The two words here translated vile
things are obscure; Gering renders the phrase simply “Kobolde.”
32. No gap indicated in the manuscript; Niedner makes the line here
given as 4 the first half of line 3, and fills out the stanza thus: “with
which I will tame you, / Maid, to work my will.” The whole stanza
seems to be either interpolated or out of place; it would fit better after
stanza 25.
34. Most editors reject line 3 as spurious, and some also reject line
6. Lines 2 and 3 may have been expanded out of a single line
running approximately “Ye gods and Suttung’s sons.” Suttung:
concerning this giant cf. Hovamol, 104 and note. [118]
35. Most editors combine lines 1–2 with stanza 36 (either with the
first two lines thereof or the whole stanza), as lines 3–5 stand in the
manuscript after line 2 of stanza 30. Hrimgrimnir (“The Frost-
Shrouded”): a giant not elsewhere mentioned. Line 5, as a repetition
of line 4, is probably a later addition.
36. For the combination of this stanza with the preceding one, cf.
note on stanza 35. The scribe clearly did not consider that the stanza
began with line 1, as the first word thereof in the manuscript does not
begin with a capital letter and has no period before it. The first word
of line 3, however, is so marked. Line 5 may well be spurious.
37. Again the scribe seems to have been uncertain as to the stanza
divisions. This time the first line is preceded by a period, but begins
with a small letter. Many editors have made line 2 [119]into two half-
lines. A charm: literally, the rune Thurs (þ); the runic letters all had
magic attributes; cf. Sigrdrifumol, 6–7 and notes.
Introductory Note
The Harbarthsljoth is found complete in the Codex Regius, where it
follows the Skirnismol, and from the fourth line of stanza 19 to the
end of the poem in the Arnamagnæan Codex, of which it occupies
the first page and a half.
The poem differs sharply from those which precede it in the Codex
Regius, both in metrical form and in spirit. It is, indeed, the most
nearly formless of all the Eddic poems. The normal metre is the
Malahattr (cf. Introduction, where an example is given). The name of
this verse-form means “in the manner of conversation,” and the
Harbarthsljoth’s verse fully justifies the term. The Atli poems
exemplify the conventional use of Malahattr, but in the Harbarthsljoth
the form is used with extraordinary freedom, and other metrical
forms are frequently employed. A few of the speeches of which the
poem is composed cannot be twisted into any known Old Norse
metre, and appear to be simply prose.
Owing to the chaotic state of the text, and the fact that none of the
editors or commentators have succeeded in improving it much, I
have not in this case attempted to give all the important emendations
and suggestions. The stanza-divisions are largely arbitrary.
[Contents]
[123]
Thor spake:
Thor spake:
[124]
Thor spake:
Thor spake:
Harbarth spake:
[126]
Thor spake:
13. “Great trouble, methinks, | would it be to come
to thee,
To wade the waters across, | and wet my middle;
Weakling, well shall I pay | thy mocking words,
If across the sound I come.”
Harbarth spake:
Thor spake:
[127]
Harbarth spake: