Mostly Sovereign

• Author: Michael Plaxton
• Pages: 40-83

[ 40 ]

cha pter 1

MOSTLY SOV ERE IG N

A. INTRODUCTION: MAN AT WINDOW

In the late evening of  March , Stephen Fedoruk was awakened

by his wife. His mother, who lived with them, was calling out: “Man

at window.” Fedoruk acted immediately. He grabbed a butcher knife

and rushed out of the house. There, he saw someone leaving his prop-

erty. Fedoruk shouted. When the stranger ran, he followed, eventu-

ally catching him. The man’s name was Bernard Frey. When Fedoruk

accused him of peering into his mother’s window, Frey simply and

repeatedly asked, “What do you want?” Fedoruk led him back to the

house, and his mother identied Frey as the man she had seen. They

called the police. Two constables arrived and, over Frey’s protesta-

tions and denials, arrested him. He was charged with “act[ing] in

such a manner likely to cause a breach of the peace.”

Frey was ultimately acquitted. The evidence adduced against him,

the British Columbia Court of Appeal concluded, was “not conclu-

sive enough to exclude a reasonable doubt in [Frey’s] favour.” But

Frey wasn’t satised with that result. He insisted that there was no

lawful basis for Fedoruk or the constables to detain him in the rst

place — that he was the victim of false imprisonment. He sued all

 Frey v Fedoruk (),  CCC  at – (BCCA).

 Ibid at .

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Mostly Sovereign

three. The crux of Frey’s claim was that, even if there had been clear

and compelling evidence that he had been a “peeping tom,” there

still would have been no legal basis for arresting him, for the simple

reason that it was not a criminal oence to engage in such behaviour.

For their part, Fedoruk and the arresting ocers argued that, even

if Frey’s conduct had not theretofore been recognized as a criminal

oence, it was open to the courts to make it criminal aer the fact.

They asserted, in other words, the judicial power to create new crim-

inal oences at common law.

The Supreme Court of Canada atly rejected this suggestion.

Accepting it would, the majority observed, “introduce great uncertainty

into the administration of the Criminal Law, leaving it to the judicial

ocer trying any particular charge to decide that the acts proved con-

stituted a crime or otherwise, not by reference to any dened standard

. . . , but according to his individual view.” More to the point, the major-

ity emphasized that there is no power to create criminal oences at

common law. Writing for the majority, Cartwright J remarked:

In my opinion, this power has not been held and should not be held to

exist in Canada. I think it safer to hold that no one shall be convicted

of a crime unless the oence with which he is charged is recognized

as such in the provisions of the Criminal Code, or can be established

by the authority of some reported case as an oence known to the

law. I think that if any course of conduct is now to be declared criminal,

which has not up to the present time been so regarded, such declara-

tion should be made by Parliament and not by the Courts.

Only a few years later, Parliament extensively revised the Criminal

Code. This did not merely involve codifying a new oence of “tres-

passing at night” in direct response to the Supreme Court’s ruling

in Frey. It involved codifying the much broader principle that had

 Frey v Fedoruk, [] SCR  at .

 Ibid.

 Criminal Code, SC -, c , s  [Criminal Code ]; House of Commons

Debates, nd Parl, st Sess ( February ) at –. The oence is now

found at Criminal Code, RSC , c C-, s  [Criminal Code]. A history of its judicial

interpretation can be found in R v Priestap (),  OR (d)  (CA).

[ 42 ] , ,  

been articulated by the majority — namely, that criminal oences

could not be created at common law. The resulting provision is now

found in section  of the Code: “Notwithstanding anything in this

Act or any other Act no person shall be convicted . . . of any oence

at common law.” Though Parliament expressly preserved common

law rules governing the adjectival criminal law — rules of criminal

procedure and evidence — as well as common law defences, it drew

the line at common law oences. Minister of Justice Stuart Garson,

under questioning by John Diefenbaker, stated: “From now on it will

not be possible, in Canada, to charge a Canadian with a common law

oence. If the crime for which he is to be charged cannot be found

with the limits of the Canadian Criminal Code or another act of par-

liament, then he cannot be charged at all.” He explained that all of

the oences that were once thought to exist at common law were to

be codied, leaving few if any “gaps” in the criminal law. Garson did,

however, accept that some might remain:

The only possible gap there might now be would be if there were

some form of common law crime which we have not had past occa-

sion to charge in past Canadian history. We think if a case of that kind

were to come up — and it seems most unlikely — it might be better at

that time to bring in an amendment to the Criminal Code making pro-

vision for such an oence. For we believe if we are to have a Criminal

Code in Canada it is desirable that we should be in a position to say

to all Canadians, “Here is an exhaustive list of Canadian crimes. Unless

the oence can be found in this code, it cannot be charged.”

In retrospect, the prediction that there would be little need to create

new oences seems a trie optimistic. Garson’s central point, though,

was reminiscent of that made by Cartwright J in Frey — that there was

a need for certainty as to the content of the substantive criminal law,

 Criminal Code, above note , s (a). The sole exception, recognized in s , is the com-

mon law oence of criminal contempt. See United Nurses of Alberta v Alberta (Attorney

General), []  SCR .

 Criminal Code , above note , s .

 House of Commons Debates, nd Parl, st Sess, ( January ) at .

 Ibid.

 Ibid.