Yukon College Papers by Murray Lundberg, 1993-1994
Criminology 135 Final Exam
April 13, 1994
1. Discuss vicarious liability.
Vicarious liability is the responsibility of a person under certain circumstances for the actions of another person. Based on the rule of resondeat superior ("let the employer resond" [ie., be liable]) (Waddams,1992:148), it occurs even when the person held responsible "is himself free from personal blameworthiness or fault. It is therefore an instance of strict (no fault) liability" (Yogis,1983:222).
Employer's vicarious liability arises from contract law, which holds that "one who expects to derive an advantage from an act done by another person for him must answer for any injury that a third person may sustain from it" (Yogis,1983:188). One of
the precedent cases in this matter was Lavere v. Smith's Falls Public Hospital in 1915.
In contrast to contract law, "in criminal law, the principal is not normally responsible for the criminal acts of servants" (Yogis,1983:188), although under very restricted circumstances; generally involving some degree of contribution to the facilitation of the criminal act, this may be overruled.
4. Discuss what is assault and battery and any defences to them.
Assault is one of the intentional torts, and is described by Linden as "the intentional creation of the apprehension of imminent harmful or offensive contact" (in Yogis,1983:20). In Canada, there is no actual crime of battery, although there is a common law distinction. Battery requires a physical contact, "although there need not be any injury done" (Yogis,1983:25).
Assault, and its limitations, are described in the Criminal Code (1991) in section 265:
265(1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to the other person, directly or indirectly;
(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes the other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
265(3) For the purpose of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
The main components of assault may be seen as the threat; the lack of consent, and the possible physical contact, and the lack of one or more of these components is the usual defence to an assault charge. In R. v. Byrne (1968), it was stated that "there must be a threatening act or gesture, and no mere words can amount to an assault" (in Yogis,1983:20).
Assault is divided into common assault, which is punishable on summary conviction; and assault causing bodily harm, which is an indictable offence. With assault being both a personal tort and a criminal offence, it may be the basis for both civil and
criminal actions. In tort law, if there is the physical contact required for a battery, "if the contact is offensive, even though harmless, it entitles the plaintiff to an award of nominal damages" (Yogis,1983:25).
An important part of the assault laws is the listing of the criteria for the amount of force which may be used by the person who is the victim, or the intended victim, of the assault. Listed in the Criminal Code sections 34-37, it states that the force basically can only be used as a last resort, and may "not exceed the amount necessary to defend himself and prevent the assault.
5. Discuss the principles of constructive trust.
A trust is defined by Funk and Wagnall's as "the confidence, or the obligation arising from the confidence, reposed in a person (called the trustee) to whom the legal title to property is conveyed for the benefit of another (the cestui gue trust), that he will faithfully apply the property according to such confidence". A trust is considered by Waddams (1992:93) to be "the most important concept of equity".
A distinction is made in the definition of a constructive trust, which is one
which is not expresed in any instrument, but is imposed upon a person by a court of Equity upon the ground of public policy ...so as to prevent him from holding, for his own benefit, an advantage which he has gained by reason of some fiduciary relationship subsisting between him and others, and for whose benefit only it is his duty to act (Yogis,1983:216).
The court-defined constructive trust may in fact sometimes be "contrary to the parties' intent", but is imposed by the court to "work equity or frustrate fraud" (Yogis,1983:216).
Dickson J., in Pettkus v. Becker (1980), listed the components of a constructive trust as "an enrichment, a corresponding deprivation and absence of any juristic reason for the enrichment" (in Klein,1987:120).
Commenting on constructive trusts as they apply in family
law, Klein (1987:119) notes that
the distinctions between implied, resulting and constructive trusts have become increasingly blurred. ...In recent years, the courts have resorted more frequently to constructive trusts. The advantage to the spouse claiming a share of the property is that neither financial contribution nor common intention need be proved.
Most provinces and territories have family property laws which allow the principles of trust law to override other property division laws; constructive trust laws are "likely to be used most often in cases involving unmarried couples" (Klein, 1987:117). Waddams (1992:94) uses the example of Re Spears and Levy (1974), a man who had been living with a woman who he thought he was married to, died without a will. Though Nova
Scotia law gave the man's property to his relatives, the law of constructive trust was used to return the property to his common-law wife.
6. Discuss and describe the objectives of the Divorce Act for spousal support.
The primary objectives of spousal support are stated by the Department of Justice (1986:17) as attempts to:
: relieve any economic hardship arising from the marriage breakdown;
: take into account any economic disadvantage or disadvantages to each spouse resulting from the marriage or the marriage breakdown;
: apportion between the spouses the financial consequences arising from the care of their children; and
: promote the economic self-sufficiency of both spouses within a reasonable time if possible.
Spousal and child support orders are awarded in the belief that a couple "share a legal obligation to care for their children and provide for their food, clothing and shelter", and that they are "also expected to support one another financially according to reasonable expectations based on their respective family roles and responsibilities" (Dept.of Justice,1986:16).
In regard to the support of the children, the court's objective is to provide support until the child is at least sixteen years of age; though the courts "have no inherent jurisdiction to order child support" (Klein,1987:96), section 197 of the Criminal Code allows for enforcement of the maintenance of "the necessities of life". The support order, however, may be extended as long as the child is in school, or indefinitely if the child is handicapped. As part of this objective, if the court feels that a child support agreement between the spouses is not sufficient to support the child properly, it may increase the support order even without an application having been made (McBean,1987:175). While child support may be considered as a separate issue, the expenses involved in raising the children will also be a consideration in the spousal support.
Klein (1987:20-21) points out that there is no standard formula for the amount of support payments. Every case is different, and the courts are allowed wide discretionary powers because of the enormous number of variables to be considered in
granting a support order. Inherent in the objectives of a support order is the desire to take into account the needs of both spouses, without regard to their past behaviour:
neither spouse should be reduced to a subsistence level. An award should not be intentionally inadequate so as to force the wife into a reconciliation. Nor should it be made excessive in an effort to compel the husband to give rent free accommodation to his wife.
The wife is no longer entitled to be supported in the manner to which she had been accustomed, as the courts recognize that "a loss of standard of living may be inherent in the circumstances of separation" (Klein,1987:23).
To aid in the establishment of the economic self-sufficiency of one of the spouses, a re-training allowance may also be part of a spousal support order (Klein,1987:26-27). The spouse's aptitude and prospects in the chosen field may be a partial determinant in deciding on such an allowance.
In order to facilitate the objectives of the Divorce Act, support may not only be awarded at the time of a divorce, there may be an interim order of support awarded to either spouse under the Divorce Act at any time after the divorce action has been started, or by provincial/territorial courts at any time.
11. Discuss the rules of natural justice.
The term natural justice is normally used to describe the duty to treat with a high level of concern for their rights, those people brought before a statutory tribunal whose adjudicative powers may affect the interests and rights of those people. Specifically, the tribunal must "give persons specially affected by the decision a reasonable opportunity of presenting their case, listen fairly to both sides (audi alterem partem), and reach a decision untainted by bias" (Yogis,1983:142-143). Lord Morris, in a 1973 case from New Zealand, stated that:
natural justice is but fairness writ large and juridically. But ...the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration" (quoted in Cole and Manson,1990:46).
The concepts of fairness and natural justice are "fluid concepts" which together
reflect the common purpose of ensuring that processes and decision-makers treat their respective participants fairly and openly by affording the degree of procedural protections appropriate to the nature and structure of the processes and the interests at stake (Cole and Manson,1990:125)
Although no clear delineation has yet been made, those tribunals which exercise judicial or quasi-judicial functions are those subject to the principles of natural justice. This is in contrast to those tribunals with strictly administrative functions, which are subject to the principles of fairness, a "which may be something less than natural justice" (Yogis,1983:143).
There have been a large number of cases which involved the question of whether or not the principles of natural justice should apply in a particular instance, and of whether a particular board's functions are of a judicial or quasi-judicial nature. Two of the key cases were Nicholson v. Haldimand-Norfolk Police Commissioners Board in 1979, and Martineau v. Matsqui Institution Disciplinary Board in 1978 and 1980. In both those cases, the determination was made primarily on the basis of the degree to which the board involved could infringe of the rights of the person involved.
One of the boards most heavily impacted by these decisions has been the National Parole Board; because of their ability to control an offender's liberty, their functions were adjudicated as being of a judicial or quasi-judicial nature, and the
requirement to apply the principles of natural justice led to changes such as the need to have the offender present at any board hearings involving his status; this was decided most clearly in Couperthwaite v. National Parole Board in 1982 (Cole and Manson,1990).
Cole, David P. and Allan Manson. "Release From Imprisonment. The Law of Sentencing, Parole and Judicial Review". Toronto: Carswell.
Department of Justice Canada. "Divorce Law for Counsellors". Ottawa: Supply and Services. 1986.
Gall, Gerald L. "The Canadian Legal System. Third Edition". Toronto: Carswell. 1990.
Klein, David A. "Family Law Awards in Canada". Toronto: Butterworths. 1987.
McBean, Jean. "Marriage and Family Law in Alberta". Toronto: International Self-Counsel Press. 1987.
Waddams, S.M. "Introduction to the Study of Law". Toronto: Carswell. 1992.
Yogis, John A. "Canadian Law Dictionary". New York: Barron's. 1983.
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