Stuart O'Connell Criminal Law Blog

It is not for judges to create criminal offences, but rather for the legislature to enact such offences.  This has been true since  Frey v. Fedoruk ,  1950 CanLII 24 (SCC) , [1950] S.C.R. 517, and is a precept which finds statutory recognition in section 9 of the Criminal Code . A person may not be convicted of an offence at common law. [FN1] While the Criminal Code removes criminal liability for common law offences, it maintains the availability of common law defences, except where they are inconsistent with subsequent legislation: see section 8(3), Criminal Code . While some common law defences (eg.   defences necessity, duress, and entrapment) are well-understood, other common law defences remain to be discovered. In 1993, the Quebec Court of Appeal recognized the very narrow common law defence of suicide pact . This defence is available only when the parties formed a common and irrevocable intention to commit suicide together, simultaneously by ...

  There are two ways in which fresh evidence may become admissible on appeal:  (1) Dixon Test:   On the basis of non-disclosure giving rise to a breach of the right to make full answer and defence.  This is governed by the test first set out in Dixon, (the “ Dixon test”); or  (2) Palmer Test:  On the basis that the cogency of the evidence is such that it warrants admission and the interests of justice require that it be received.  This is governed by the test  first set out in R. v. Palmer , [1980] 1 S.C.R. 759 (the " Palmer test ").. The Dixon Test T here are two components to the Dixon test. 1. Did the Crown breach its duty to disclose? If the court concludes that, at the relevant time, the Crown failed in its disclosure obligations, then Dixon requires that the court go on to consider the following: 2. Was there a “reasonable possibility” that the non-disclosure: (a) impacted the outcome of...