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Book Review: Cases and Materials on Criminal Law and Procedure, Fourth Edition, edited by M. L. Friedland

York University, Osgoode Hall Law School

Osgoode Hall Law School of York UniversityOsgoode Digital CommonsArticles & Book Chapters Faculty Scholarship1976Book Review: Cases and Materials on CriminalLaw and Procedure, Fourth Edition, edited by M. L.FriedlandAlan GrantOsgoode Hall Law School of York UniversityFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/scholarly_worksThis work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works4.0 License.This Book Review is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted forinclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons.Recommended CitationGrant, Alan. "Book Review: Cases and Materials on Criminal Law and Procedure, Fourth Edition, edited by M. L. Friedland."Canadian Bar Review 54.1 (1976): 186-191.186	LA REVUE DU BARREAU CANADIEN [VOL. LIVworld", I would see no objection to, for example, unions pur-chasing group accident insurance, the effect of which might putemployees in a better position financially while injured than whileworking.Thelaw of damages relating to personal injury is, of necessity,in a thoroughly unsatisfactory state. All too often one is forced atthe present time not to choose the "best solution" (because it isunavailable) but rather the "least bad" alternative.Occasionally, I have differed from Mr. Luntz in my choiceof the "least bad" solution but this is not to deny that he haswritten a book of the first-rank . I am certain that it will come tobe so regarded, both by academics and by the legal professionthroughout the Commonwealth .R. A. HASSON*Cases and Materials on Criminal Law and Procedure. FourthEdition. Edited by M. L. FRIEDLAND . Toronto: Universityof Toronto Press. 1974 . Pp. xv, 1021 . ($25.00)The first thing one notices about the new edition of ProfessorFriedland's well-known casebook on criminal law and procedure'is that there has been a vast increase in size over the last edition,from 701 pages to 1021 pages-a not inconsiderable expansionfor a set of materials which, unlike its major competitor,' purportsto deal only with the general principles of criminal law and doesnot contain chapters on the better known substantive offencessuch as murder, assaults, theft and fraud. This said, however, theincrease in coverage has been very well used indeed so that thisvolume, which sells at a special student price, is almost certainlythe best casebook in the field available to Canadian law teachers .Indeed, the great improvements over the third edition come assomething of a surprise on account of the very modest prefaceto this new edition which tends to place emphasis on the factthat the basic structure has remained the same. While this is true,the expansions and additions are such that this work now standson its own as a very complete treatment of the subject area andthe usual law teacher's desire to supplement with further personal* R. A . Hasson, of Osgoode Hall Law School, York University,Toronto.1D. A . Schmeiser, Criminal Law : Cases and Comments (2nd ed.,1973) .1976]	Revue des Livres 187distributions to students can now be, thankfully, resisted withoutloss of pedagogic effect .Quite apart from obviously new material such as bail proce-dures and wire-tapping legislation, much of which shall have toawait further development by case-law, many of the well-knownareas have been strengthened. This is so, for example, in omissions(.with an excellent note from Macaulay and the Indian Law Com-missioners of 1837 to remind us that the discovery of "new"solutions may, on occasion, be little more_ than a re-discovery ofexcellent. legal scholarship from the past) and automatism (bythe challenging re-arrangement of provocation within this title toforce us, if we can, to distinguish the two phenomena which, onthe facts of a given case, can be somewhat closer than the verydifferent legal results which follow a finding of one or the other,would indicate) . That a successful plea of provocation onlyreduces murder to manslaughter while a successful claim ofautomatism results in the accused going totally free has beenjudicially, dealt with, to date, by what Schroeder J.A., in theOntario Court of Appeal,2 has described as a "wholesome skep-ticism" towards the automatism defence. But is this enough? Thereis no doubt that insanity, provocation and automatism createdifficult problems within the general principles of criminalliability and this new arrangement certainly highlights thedilemma.The remarks which follow are some samples of the experi-ence gained with this edition which I used recently in teachinga course in elements of criminal law and procedure in the Centreof Criminology Certificate Programme at the University ofToronto.Is it correct to say, as the author does,3 that offences overwhich the magistrate has absolute jurisdiction cannot (sic) be triedby indictment? It is true that offences under section 483 of theCriminal Code will, in practice, almost invariably be tried by amagistrate (Provincial Court judge) but section 485(l) makes itclear that the magistrate can, if he wishes, send such cases fortrial following a preliminary inquiry and, more generally, section426 makes it clear that every superior court of criminal jurisdic-tion has jurisdiction to try any indictable offence. 4 In addition,2 R . v . Szinusiak (1972), 8 C.C.C. (2d) 407 .3 P . 3 .4 For an application . of this, see R . v . Holliday (1974), 26 C.R.N.S.279 (Alta C.A.) .188	THE CANADIAN BAR REVIEW [VOL . LIVthe excellent schematic° depicting the appellate routes for bothsummary and indictable offences could be strengthened by chang-ing the description of trials of indictable offences by magistratesunder Part XVI of the Code from "Summary Trial" to simply"Trial by Magistrate" since the current description causes need-less confusion with summary trials under Part XXIV which aresubject to a quite different procedure and appellate hierarchyfrom Part XVI trials .The section on certainty in the law contains, understandably,an excerpt from Cartwright J. in Frey v. Fedoruks in which it ismade clear that conduct likely to result in a breach of the peace(in this case the actions of a "peeping tom") was no offence inCanada . This is all very well as far as it goes, but leaves studentswith a somewhat incomplete view of the law in this area becausethe casebook does not go on to mention the powers of justicesto bind people over to be of good behaviour-as might well be thefate of a "peeping tom" .7 Thus a defendant in Canada, it seems,may content himself that the law is too certain to convict him ofsuch a vague offence, but not so insipid that, for similar conduct,it cannot require him to find sureties for his good behaviour andsend him to prison if he fails or declines to do so!The topic of morality and the criminal laws raises, of course,the whole question of whether, and to what extent, criminalityand immorality can or should be co-extensive . Students today tendto be somewhat restive with a discussion which emphasizes, as thecasebook does, the narrow areas of homosexuality and abortionin this connection. It seems that one of the penalties of the Judeo-Christian culture is the tendency to regard immorality per se andsexual immorality in particular as synonymous . In an age wherepolitical expedience and crime have sometimes become blurredand where our consciousness of the ill-defined nature of theboundary between successful business practice and "price-rigging", environmental pollution, false advertising and themanufacture of unsafe products has been heightened by dailyrevelations in our newspapers, it is clearly time to trade off extracoverage in such well-tilled fields as homosexuality and abortionfor some asexual considerations in this area .s P. 8.s[19501 S.C.R . 517, casebook, p. 151.7 See Mackenzie v. Martin, [19541 S.C.R . 361 which held that com-mon law preventive justice was in force in Ontario and neither the sectionsof the Criminal Code dealing with this subject (now ss 745 and 746)nor any other section interfered with this jurisdiction .8 Ch . 4.1976] ook Reviews	189The law of attempt has always been an area much loved bylaw professors and much hated by students who have had tograpple with such imponderables as legal and factual impossibil-ity. That this- edition went to press before the House of Lordscase of Haughton v. Smiths could be included (other than as afootnote"') was a great misfortune, since, although the case couldhave been decided on classic Percy Dalton" lines, their Lordshipshave been tempted by way of obiter dicta, into casting great doubton the "empty pocket" attempted theft cases which, until now, weall thought we understood .12 Can stolen corned beef, althoughrecovered by the police, be allowed to continue to its, destinationso that the recipients, though not guilty of possessing stolen goods,may be convicted of the "attempt"? The House of Lords would say"Ho" but the obiter now raises a host of new problems. It looksas if the future of generations of criminal law examiners andexaminees is secure! Although this chapter worked very well inclass, my students were mystified by the inclusion of . a section onagents provocateurs under "attempts"." Would this subject notbe better dealt with in one of the sections in Chapter 2 on policepowers, investigation or discretion? In addition, the Bainbridgecase14 would be much more appropriately classified under "aidingand abetting" rather than "Incitement", especially since, on thefacts, Bainbridge would appear to have played only a minorpreparatory role in the criminal enterprise and certainly incitedno-one. Far from being a user of others he seems, himself, tohave been used .Chapter 8, entitled The Mental State : Requirements ofCulpability, is one of the best in the book making judicious useof United States, English and Canadian material. In particular mystudents found the ordering of the cases to show the variousmeanings which the courts have given to "intent" very illumi-nating . The old case of Dunbar,15 although short, is very instruc-tive and looks set fair for reconsideration by the Supreme Court9 [19741 2 W.U.R . 1 .10 P . 339 .11 R. v. Percy Dalton (London) Ltd (l949), 33 Cr. App. Rep. 102(C.C.A .) .12 An excellent note appears in [ 1974] Crim . L.R . 305 in which Prof.J. C. Smith, the "Migh Priest' of the legal and factual impossibilitydichotomy is forced to look again at all of the stalwart work he has donein this field stretching back to (1957), 70 Marv. L. Rev. 422 .13 P . 340 .14 P . 350.15 (1936), 67 .C.C.C . 20 (S.C.C .), casebook, p. 413 .190	LA REVUE DU BARREAU CANADIEN [VOL . LIVof Canada on the question of the availability of the defence ofduress to "participants" in crime who have been coerced by theprincipal offenders. In a case which was recently before theOntario Court of Appeal,16 the majority view in Dunbar wasgiven an almost statute-like interpretation by the court whichdenied the defence to an accused who claimed to have beencoerced into being the "getaway" driver in a robbery, an offenceexpressly excluded from the operation of such excuse by section17 of the Criminal Code . There may be much to be said for thedissent of Crocket J. in Dunbar who would excuse persons wholacked a "common intention" . 17 This clearly recognizes that thereare special circumstances surrounding the involvement in crime ofpersons other than those who, at common law, would have beendescribed as principals in the first degree, that is, the more remotefrom the crime, the more need for mens rea in its classical senseor, put another way, the more remote from the crime the lessapplication should there be of constructive or notional intent .Hopefully, future editions of Friedland may be able to include alonger, more closely argued judgment on this point than Dunbarcurrently gives us and Paquette will present the Supreme Courtof Canada with just such an opportunity.One or two editorial aspects could be improved in futureeditions, for instance, the result in the Quick case18 reads "AppealDismissed" instead of "Appeal allowed and conviction quashed"and more generous spacing on page 151 would make it clearerwhere the excerpt from an article by Dr Mewett ends and aneditorial note leading into the excerpt from Frey v. Fedoruk19begins . But these are quibbles . In accordance with the nowexpected high standard of the University of Toronto Press, thiscasebook is very finely finished and solidly bound-a not incon-siderable feature in an era where one sees more and more studentsstruggling with self-destructing casebooks only five or six weeksinto a semester.As a final comment I would only question, whether fourteenyears after the enactment of the Bill of Rights, it is still properthat this potentially important topic in the field of criminal lawand, more particularly, criminal procedure, should only haveattained the meagre status of "Supplementary Materials" at theend of the book. Is it not time for an organized chapter on the16 R. v. Paquette (1974), 5 O.R . (2d) 1.17 Now s. 21(2) .1s P. 644.19 [19501 S.C.R. 517.1976] evue des Livres	191ill of Rights using some of the more enterprising lower courtdecisions which have made use of its provisions, such as Little-john2° and excerpts from the growing Canadian literature on thesubject as it relates to criminal procedure?:.'1ALAN GRANT*International Criminal Law. Cases, Notes and Materials. SecondRevised Edition . By SHARON A. WILLIAMS and J.-G. CASTEL.Toronto: ®sgoode Hall Law School, York University. 1975.'Pp . xiv, 980. ($22.00) .In recent years, books containing cases, notes and materials havecome into increasing use in law schools. One of the noted Cana-dian promoters of such publications has been Professor J.-G.Castel whose collections of cases, notes, and materials on publicinternational law and conflicts of law are well known. ProfessorCastel and Miss Sharon A. Williams have now collaborated toproduce the second revised edition of a monumental publicationentitled International Criminal Law. Cases, Notes and Materials.To the outsides, the topic of international criminal law mayappear to be a somewhat esoteric one, conjuring up, as it does,visions of the Nuremberg trials, war crimes and the crime ofgenocide . However, the book under review is concerned not onlywith the criminal law of the international community, but also, invery great detail, with the extra-territorial application of Canadianor some foreign criminal law.The first part of the book is devoted to Canadian law andCanadian jurisdiction over offences containing a foreign element.Under the heading of jurisdiction and the criminal law there iscoverage of such topics as conduct within the territory ; effectwithin the territory of conduct outside the territory; conduct ofcitizens outside the territory ; harm caused to a citizen outside thestate's territory by an alien (passive personality principle) ; theprotection of certain vital state interests; and the protection ofcertain universal interests in the case of harm no matter wherecommitted by an alien. Under the same heading are found cases,notes and materials on the questions of enforcement in the territoryof another state and immunities from criminal jurisdiction .20419721 3 W.W.R . 475.21 Ch. II. See W.S . Tarnopolsky, The Canadian Bill of Rights,(2nd rev. ed ., 1975), esp. bibliography, pp . 415-418.* Alan Grant, of ®sgoode Hall Law School, York University, Toronto.

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Book Review: Cases and Materials on Criminal Law and Procedure, Fourth Edition, edited by M. L. Friedland

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