23 December 2005

Why criminalise conduct: harm vs community standards?

R v Labaye [2005] SCC 80

A splendid decision of the Supreme Court of Canada in which they re-interpret the definition of “indecent” – moving from the previous community standards test to a harm-based analysis.

No doubt the facts will excite students too – with the charge being keeping a common bawdy‑house for the practice of acts of indecency arising from the operation of a swingers club. There’s also a companion case: R v Kouri [2005] SCC 81 (a bar for “liberated couples” to have group sex). No chance for additional comment - but will try and pull things together post Xmas.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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