Professional Documents
Culture Documents
STJPREME
COURT
OF CANADA
517
BERNARD FREY
PLAINTIFF AND
APPELLANT
1950
Feb7 Apr 25
RESPONDENTS
COURT
OF
APPEAL
FOR
COLUMBIA
criminal
lawPee
breach
ping
of
tomWhether
peaceFalse
offenceConduct
without
likely
cause
imprisonmentArrest
war
rantBurden Supreme
Appellant he had was
Code
66
ss
80
646
647
648
650
after side
77 by respondent
looking was
into
caught on
and
detained
Fedoruk
lighted for
been
of
Fedoruks
where
property
window
policeman tion
house
woman
was warrant
act in
preparing
after
bed
called
and
some investiga
arrested
On
that
the
unlawfully
manner
appellant
likely
to
cause
peace
by peeping
but
for
was
of
convicted
by
Magistrate
for
acquitted malicious
trial
by
the
Court and
Appeal
for false
His
claim
damages
prosecution judge on
at the
imprison
ment
was
dismissed
in the of
by the
of
and
this
affirmed
by
had that
Court
Appeal
offence for
the
ground law
appellant
therefore
guilty
criminal
common
arrest
had
to
been
this
justification
without the
warrant claim
for
The
false
Court
is
concerned
only
with
imprisonment
Held
to
Appellants
the
conduct Therefore
did
not
amount
to
any
criminal
to
offence
known
the onus
or
law upon
respondents
justify
have
failed
satisfy
placed 650
of
them
to
the
imprisonment
under
ss
30
648
Code Rand
Kellock Locke
PRESENT
and Cartwright
JJ
518
1950
30
Cr
on the
authorizes reasonable
offender
peace
officer
to
arrest
without that
warrant an
he
and
probable be
grounds
believes
offence
for
which
may
arrested
without concludes
FEDORUK
et at
has
facts
been
erroneously matter
of
law they do
falling
not
any
KerwinJ
Held
further
not
otherwise
not
within not
defined natural
by
and
law
does thereof
likely
become
be
to
probable
result acts
will to
to
violent are
retributive
action
cause because
peace
not
It of
is
in
merely
for to
have
tendency
course
for
decide
any
as
conduct
is
up
been Per
regarded
criminal appellant he
now
to
Kerwin
of
The
If
by peeping
is
not
commit
either
breach
police
the
peace
or or
had
it
not
an
offence arrest
which
constable ss 646
private
of to
individual might
without
under
afford
647
the Criminal
either
Code
Sections
since
30
648
no
assistance
respondents
no
criminal
offence
was
committed
APPEAL
British the
of
the
Court of Appeal
for
Columbia by
Robertson
of an
JA
dissenting
dismissal
judge
action
for false
im
prisonment
and malicious
Bray K.C
Lee Kelley
for
the
K.C
and
the
respon
dent Stone
KERWIN
against
The
judgment
plaintiff
in
this of
action
Frey
for
of
the
Court
Appeal
so
Columbia
affirming
by
majority
far the as
defendants Fedoruk
of the
for
dismissal
tried
action
by
the
judge
The
action
was
false
prosecution
action
latter
stands
issue
all
defendants
it
with
in
this
The
ing
claim
circumstances
which
some
are
denied
by
the
appellant
way home
the the
While on his must be taken to be established from work about 11.15 p.m on March 1947 stopped
out the the truck
lights
appellant
which
he was
driving
on
highway turned
rear
of
to the
house
occupied
by
defendant
his wife
and mother
Fedoruk window
Can
CC
206
S.C.R
519
but the
curtains
of
which other
1950
eight inches
of each
FREY
her
seen by Fedoruks mother while she was standing FEDoRU etal The mothers nightgown in her lighted bedroom at
cry
Man
called
in
window
to see
was
heard by the
butcher
wife
of
Fedoruk
out the
KeinJ
who
door
him
Seizing the
knife
leaving
he ran
the started
time
appellant the
property
to the
appellant
feet
run road
in
about 300
to
down
was attempting
the
insert
the the
key
ignition lock
truck and
the
Fedoruk brought
police were
notified police
appel The
officer
defendant
Stone
and
another
came and
footprints arrested
investigating the
thoroughly by examining
other
the
upon
the
ways
act
in
Stone
police did
station
There he was
he unlawfully
breach
of
such
manner
at night
likely
cause
the
peace by peeping
of
through
the
window
of the
house
that the
Fedoruk
was
set
His
aside
conviction
by
Court
magistrate
of
on and
charge present
by
the
Appeal
action
the
bare
is
amounting
to
of
the
peace
not
offence
The
and
difference that
opinion
arose between
considered
an actual
breach of the
Mr
Justice Robertson
who thought
for
otherwise
As
Mr
Justice
OHalloran
it
speaking
the
majority pointed
at
outFurthermore
that
if
plain not
common
law
the
intruders
constitute
criminal
likely
It
offence to cause
then he could
breach of
be charged
with conduct
the
peace by the
Fedoruks
is
may
the
be
difficult
to define
for
exhaustively
what
the
breach
of
peace
but
present
purposes
in Clerk
and
Lin.dsell
on Torts
10th edition
may
of
be
accepted
takes
or to place
the
peace
when
alarm
either
an
actual
assault
is
is
on
an
individual
or
is
public an
and
excitement short
caused
actual
Mere
annoyance violence
special
insult
individual
of the
stopping
of
personal apart
for
not
police
breach
peace give
Thus
householder
into
from
legislationcannot
ringing his
man
custody
violently
and
persistently
door-bell
95
Can
CC
206
520
1950
the
last
sentence
is
case
It
is
of
false
impris
it
onment
FEDORUK
etal
Grant on
to
Moser
which
the
cited
true
that
was was
decided
pleading
ultimately
latter
the
of for
defendant
the the
permitted taming
tihe
amend but
part
KerwinJ
argument
of Sergt Talfourd
including well
It
is
interpolations significant
that
of
is
reads
sufficiently discloses
the
plea
breach the
plaintiff
of
the
peace
force
at
the
to
After and
to
stating violently
that rang
it
with
and
so
arms came
doing
after
con
In the
tinued
being
requested the
desist
states
thereupon
charge
which Baynes
plaintiffs
must
mean
instanter
defendant
gave
him
plea
at
Brewster
arrest for
Q.B 375
creating
669 by rapping
that that the
justifying
disturbance
it
the
door
at
was
held
of
bad
the
because
arrest
appeared
disturbance
the time
Tindal
the
C.J
And
in
although
that
gave
plaintiff allegation
charge
is
in
in alleges
order
this
preserve
of
the
peace
having took
What
breach the
of
there
It
plea
anything
done
in
the
of
peace
our
that
the disturbance
against
peace
Lady
the cannot
Queen
arrest laid in of as
Tindal
another
C.J
for of
Those
mere verba
act
sonantia
One party
had
mere unlawful
the peace
Suppose
breach
front of
the the
the
defendants
police act
house
of
might
have See
been
breach
metropolitan
Vict the
47 peace
of
sect
been there
breach should
at
Tindal
allegation
54 div 14 but it would not have defence C.J To make this good
either of
be the
direct
breach
into
of
the
or
peace that
for
time
giving
the that
plaintiff there
custody
been
its
was
reasonable
ground
apprehending
In the
earlier
of Green
Bartram
to quote the
headnote
went
could
this officer to
the
house
of
to
demand
and
told
debt which
to this
he
not
pay
had that
Angry
to
words he
passed was
the
leave sent
house
police
refused and
do
unless
locked
if
up
in
Held
by
would
Lord
Tenter
been
in
den
C.J
in
was
making
of his
disturbance
have
justified
turning
him out
was
not
justified
imprisoning
him
the
in
Notwithstanding lant
that ing
find
contemptible actions
of
the
appel
judge
myself
dissenting
all
the appellant
did
circumstances
it
view of
of
the
surround
If
the
peace
police
he
had
was
not
an offence
individual or 647
officer 123
which
either
con
stable or
private 646
warrant
Section
of to
Criminal Code
peace
arrest without
warrant only
308
Man
1830
Car
S.C.R
if
SUPREME COURT
on reasonable
for
OF CANADA
grounds
believes that
1950
he
and
the
probable offender
an offence warrant
which
may
Since
be arrested without
offence
FREY
has been
committed
of
arrest without offence
was committed
peace committing
officer
subsection
FEDoRv
etal
may
warrant
whom
he
finds
Cartwright
any
criminal
affords
no
assistance
to the
respondent
Stone
even
if
it
committing
the respondent
to
Fedoruk assuming that he was the owner of the property The majority in the Court of Appeal considered that the statute 34 Edw was not in force in British III Columbia but even if it were no offence had been committed The appeal
entered
for
it
would
should
be allowed
for
and
judgment
should
be
the
appellant
the
amounts
fixed
by
Mr
that
as to which
for
no question and
against
was raised
Stone
for
Fedoruk
is
$10
$50
The
and
appellant
in this
Court
There should
so far as
be no
the
is
costs
of the
of false
action arrest
against
is
the
issue
concerned
appellant
able
to secure
an order
British
under
section
77
the
Supreme
Court
Act
of
and
of Taschereau delivered as
Rand
Kellock
JJ was
by
to
CART WRIGHT
whether
described offence the as that
if
appeal
the
raises
questions
conduct
of
Plaintiff
which
is
popularly criminal
peeping torn
whether
in the the
constitutes
and
so
Defendants
Fedoruk
and
justified
arresting
Plaintiff
without
Court
the
presented
as
depending
stated as
upon
undisputed
facts
may
be
briefly
follows
About
of the
gown
11.15 p.m on the 4th of March 1947 the mother in her Defendant Fedoruk while standing night in her lighte.d bedroom in her sons house saw the
Plaintiff
peeping
into
her
window
She was
the
curtains
of
which
called
frightened
and
522
1950
her son
who The
seized
Plaintiff
butcher knife
He
who was
then
to
Fedoruks
chased
Plaintiff lights
property
Plaintiff
started yards
to
run
his
Fedoruk
the
point into
where truck
the
CartwrightJ.waS
of
to
unlock were
and
get
The
truck
out
Fedoruk
took the
Plaintiff
back
to
house
at her
threatening the
him with
knife
Fedoruks
she
mother
seen
identified
Plaintiff
as the police
man whom
were
arrived
had
window
and
the
called
The
Defendant
Stone
police
pOlice
officer
constable
accompanied
as
by another
result
and
after
some
Plaintiff
investigation the
of which
he formed the
told the
opinion
that
Plaintiff
the Police
Station
and
the
in
the
evidence
Defendant
the Police there
Stone
Station
Plaintiff
on
his
way
as to
and
at
the
Police
Station
but
this the
in
appear
to
be concurrent
counsel
for
findings
Plaintiff
of fact
against
it
Plaintiff
and
the
made
clear
and
to
in his his
argument
for
that
the Plaintiffs
for false
appeal was
claim
damages
imprisonment
against
the
Defendants
Fedoruk
and
Stone The
all
learned
trial
Judge
dismissed
of
the
action
against
three
Defendants
the
The Court
Appeal
mously awarded
this
allowed the
Plaintiff
him
award Appeal
The J.A
majority
of
Plaintiffs
appeal
Robertson
to
appeal as
the
these
Defendants
Plaintiff
$50 against
Plaintiff
Stone
the of
by
Court of Appeal
the
The
that
majority
Plaintiff
Court
of
Appeal
criminal
were
of opinion at
the
was
that
guilty of
offence
Com
in the
mon Law
and
in
the
Defendants
were
justified
circumstances
arresting
him without
that
warrant
facts as
Robert found no
of the
view
on the
offence
was
committed
95
by
the
Plaintiff
S.C.R The
in
SUPREME COURT
claim being
OF CANADA
for false
523
one
for
damages
imprisonment
1950
my
opinion
of
the following
short passage
from Haisburys
FREY FED0RUK
et at
Laws
The
England
states
of
Second
Edition
Volume
the
33
page
38
correctly
the
law
of false
gist
imprisonment that
facie
ment
or
the
plaintiff
not
malicious
but
establishes
mere imprison- Cart the imprisonment was unlawful if he proves that he was case
is
ht
imprisoned proving
by
the
defendant
onus
then
lies
on
the
defendant
of
justification
There
is
no question
first
on the
facts
but
tha.t
the
Plaintiff
was imprisoned
and in order
of
to
by Fedoruk and afterwards by Stone succeed it was therefore necessary for each
and prove
that the
them
to
plead
imprisonment was
The
justification
pleaded
facts
by Fedoruk
above
Plaintiff
statement
of
the
outlined the
by the
allegation
that
fearing
that
in question doing
an act which
to cause lawful
breach of the
excuse into the
peace
to
without any
windows
of his the
bedroom
through
of the
while
hiding
outside
he
pursued
the the
is
his property
of
and
arrested
Plaintiff
because
violation
by
The
the
justification
by Stone
of
he
placed of
Plaintiff
the
to
commission
cause
that
of
was
likely
breach at
by
the
reason
the
said
Plaintiff of
peeping
night
through
in
window
through
of the the
home window
she
Stephen
the
and
the
particular
of
Fedoruk bedroom of
and
the that
said
Defendants mother
for
while
was
undressing
bed
and only
after having
investigated
by
be
the
in
Plaintiff
found
facts
same
will
accordance the
observed
that
Defendant
of
Stone does
peace
fact
not
plead
that
he believed
or that such
breach breach
plea to
the
in
had been
been
that
committed mitted
Plaintiff
had
the
com
the
He
limits his
allegation to cause
had committed
an act
likely
breach of
the
peace
only charge
did
act in
The
peeping situated Contrary
laid
against
the
to of
Plaintiff
was
of of
that
he
by
unlawfully
at
night
cause
the
breach house
the peace
against to
the peace
of
our
the form
Statute
in
524
1950
charge
sitting
the
for
Plaintiff
was
convicted
trial
by
police
Fear
magistrate
the
summary
Frey
for for his
of
an indictable
the
to
FEDoau
et at
The formal
the
of said
conviction
Bernard
concludes
said
with
offence
words
keep the
adjudge and be
good
behaviour
the
term
one
year of
Cartwright
This on
the
conviction
was quashed
the evidence
by
that
the
Court
Appeal
did
it
ground
that
on
the
record
not
support the
sary
to
conviction
without
court finding
neces
decide
whether
or not the
is
acts
charged constituted
in
criminal
offence
This
stated
the the
judgment Court
of
was
member
of
which
the
on the from
criminal
does
not
preclude
for
Defendants
showing
that
justification
having
the
imprisoned him
of
he had
fact
offence
which
he
Fitzgibbon
and Cook
an
Common Law
committed
fear in in
following
the
of
He
way
to
himself
breach
Kings Peace
the he
in their
that
produced and
the inmates
house
would
he
tranquillity invite
privacy
manner
against
that
naturally other
of
expect
it is
immediate
in
violence take
him
Among
things
the
instinctive of his
man
to
physical
at
reprisal
against
invasion
his
privacy
of
womenfolk peace
incident and was
particularly
night
to
Accordingly an
breach
the
Kings
the
sinister
Kings peace
of more than likely cause by the inmates of the house and he contributed another him instead of at by running when Pedoruk shouted to
immediate
breach
stopping
talking
is
Fedoruk
to define
No
of
attempt
made
completely except
to
the
it
Common Law
is
offence in
its
breach
of the
Kings Peace
sense
say
not used
here
common
and
more narrow
OHalloran J.A
As previously
the narrow and
later
continues
breach
of
intimated
the
peace
to
has
two
significations
common
and
one
riots
tumults goes
of to so
and deeply
actual
into
physical the
of roots
violence
of
one
which
the
disturbance
lead
the
tranquillity reprisals
people
which
not
punished
will
naturally
of
physical
with
wider and
more aggravated
disturbances
the
Kings Peace
the
While
OHalloran J.A
not expressly
takes
the
view that
the
Code
does
make
Plaintiffs
criminal
and that at
16
Common Law
371
1885
L.R
S.C.R window
goes at
525
not
in
itself
criminal
in
he
is
1950
on to hold
the
circumstances
which
done
It act
may
is
change
judgment
in
character
and continues
here surround implications whole night from the intruders that
in
FEDoRU
et al
my
of
of
looking
the
window
with
his It to
such
sinister as at
the Cartwright
lack
as
credible at
explanation
conduct
must be
regarded on he
criminal
Common Law
some
side thirty
was
late feet
private was
property
in
forty
back
face
line
looking
lighted the
window
could
see
which
did
not
the street
for
the
window
apart
was
from
and
he
woman
unknown
incite
preparing
of
bed
in
Quite such
peeping
the dread
of
torn aspect
of
the presence
at
prowler would
circum
frighten
stances
the
hostile
night
to
naturally
violent
the inmates
or offensive
the
house and
against
them
immediate
defensive
action
him
dissenting
Robertson
Plaintiff
J.A
was
will
of
opinion of the
lie
that
the
commit an
actual
breach not
peace
He
points pass
an
of
indictment
to
for of
are tres
the
not
amounting
an law
actual
is
breach
peace
amply supported by the authorities cited J.A all of which were by Robertson decided Rich 111381 long after the passing of C.8 of
the referred
to in
This
statement
the
judgment any
of
OHalloran J.A
criminal
as
making
even
if
unlawful
entry
into
lands
offence that
unaccompanied contemplates
by
entry
violence
In
my
view
statute
of taking
an isolated and
in this
temporary
agree
Plaintiff
as
occurred
case
the
with
did
Robertson
J.A
that
commit any
criminal
We
offence
have
of
It
conduct
peeping
is
tom
was
held the
be
criminal
that while
rule
may
not be
right
so strict or
as
in
cases in
allegation party
civil
case
where
defence
rests lies
on an
of
conduct
questions
heavy
that
onus
upon
the
alleging
are left
in
is
in doubt
by
circumstantial
must be
resolved
favour
of innocence
in
There
no suggestion
of
the
evidence violence
of
on the part
reasonable
the
Plaintiff to
to offer
to
inference
be
drawn from
intention
the
recited doing
above
is
that the
Plaintiff
had no
that
of himself
any
violent
When
opinion
he was
the
he at once
his presence
away
night
In
my
mere
that
in close
526
1950
window
inmate
at
would
of
have
the does
probable not
effect
FREY
the
room
make such
conduct
Ctal Cartwright
Common Law
the
While
with
view
if
expressed
J.A
that
conduct
discovered
frighten to
incite
inmates
to
of the
house
and
that action
would
against
tend
the
them
immediate
violent
intruder
properly as
am
and
doubtful
whether
such
action
could
it
be
described
would describe do
not think
it is
rather
is
offensive
action
defensive given
when
the
whom
to
taken
is
has
no indication do not
intention that
it is
attack
and
as
already
in flight of
matter
falling
law
that
conduct
category
not otherwise
of offences
and not
the
within
any
defined
by
Law
tive
becomes
criminal
because
natural others
and
result thereof
will be to provoke
If
to violent
it
action
that
such
courses could the
principle were of
admitted
it is
me
are
many
out
conduct which
the
well
settled
not criminal
setting
be made and
likely
subject
of indictment the
by
that
facts
concluding to cause
with
words
of the
such
conduct
was
breach
peace
Two
examples
may
be mentioned
The speaking
of violence violent
by any threat
does
undoubtedly
retributive of adultery discovered pressly
If
it
may
action
and
but
sometimes
is
produce
not criminal
cases
has
in
many
in
recorded
resulted so
homicide but
adultery
is
where
ex may
by
made
should
by Statute
not
crime conduct
not
be admitted as
criminal natural
it
principle
that
be
treated
it
as
because tendency
to
it
although
otherwise violence
criminal
has
way
such
of retribution
seems
think
me
uncertainty of
do not
safe
by
application
which have
in
not up
any
reported
case
This would be
my
it
view
if
the
matter were
not covered
by authority but
authority
likely to
also appears to
me
In
my
view
it
cause
in themselves
S.C.R
criminal the only
SUPREME COURT
merely because
they
OF CANADA
this
527
have
tendency
and
thaI
1950
way
the
in
and
is
FREY
restrained
apart
for the
damages
persons
FEDORU
etal
by taking
mitting
appropriate acts
steps over
have
the
corn-
such
bound
to keep
whom
475
cata
of It
Humphreys
Sessions
agrees
in
Rex
County
of
London Quarter
at page
Appeals Committee
work
to
particularly
where
In logue
is
he says
Daltons given which with and
are
Justice think
of
the highest
of
authority
iarge
be
for
exhaustive
number taken
as
instances starts
justify
sureties
good behaviour
on to such
live to
being
cases idly
rioters
barrators
and
goes persons
nightfare
walkers well
or
eavesdroppers
well
suspected
who
and
yet
apparelled having
nothing
whereon
live and
common
are
first
gamesters
None
defined night and or
in
of
these
were
Si
ever
indictable as
offences stand
Eavesdroppers
walls or to
Termes de
to
Ley
news
such
and
to
as
under
to
by day
hear
their in
carry
them
others
debate
amongst
it is
neighbours
Russell on and Crimes Leet that
as
Though
with aware
in
said
eavesdropping offence
so
dealt
the
Sheriffs
Tourn
can be
at
Courts
in
an
of
am
being
no
instance
for
found
the
books
It
any
or of
indictment that
of
preferred can be
common law
or
follows
therefore
nobody modern
caused days
eavesdropping mentioned
for
nightwalking
many
doubt
cities in
the other
by
Dalton although
in
no and which
in
necessity to as
good Acts
government which
towns
has
Legislature regarded
to of
pass
make
things
earlier
necessary
no more than bad behaviour criminal offences and it is bear in mind that in the present case which we are considering
having Police committed Act was any
offence against statute
no charge
such
as
the
Metropolitan
preferred
In
Ex
parte over
Davis
person
Blackburn
to
points peace
is
out that
not
the
binding or
of
keep
the
an action
proceeding
by way
of
punishment
but
is
only
pre
cautionary
proceeding
to prevent parte
breach
of the
peace
In Rex
citing
Sandbach Ex
be bound
Williams
Blackstone
Volume
to
iv
Humphreys
out that of for causes
man may
scandal
his good
contra
pacem
my view the Plaintiffs conduct in peeping through window was contra bonos mores but was not contra pacem in the sense of being breach of the criminal law The case of Davies Griffiths is decision of the
the
117
In
1871
24
.KB
1937
53
192
T.LiR
680
528
FRET FEDOBUK
etal Cartwright
C.J
and
stated
and
the
is
given
by Lord
the
Court
Mac
Singleton
in
with
the
him
facts
the
report that
relevant
proved
or
admitted
to
showed
address
appellant near
the
Davies
entrance the
had
to
attempted
colliery
meeting
in
and
such conduct
previously
despite there
protest
of
police
that
had
been
breaches
of the
conduct Davies
tions
was
such
as might convicted
the
peace
had been
by
justices
on two informa
preferred
first of
against
The
these
Merthyr
of
Colliery
the
peace
contrary stated
first
common
the
law
The Lord
in
Chief
Justice as
having
to
this
major point
the
appeal was
charge
said
With had
keep Bar regard
to
the
first
it
is
quite
evidet
justices
that
there
was
facts
misconception been
the
The was
only
if
to to
the
when
the
proved peace
they
to
thought
find
fit
bind
It
is
the appellant
over
at
to the
and
perhaps
sureties took
common
had
In
ground
to
the on
justices
was
that he
They
in
the
appellant
to
the
basis
them sub
erred
stantive point
offence of
which
penalty
might
apply
they
In
my
breach Edition
the
of
the
Peace
in
Lexicon
14th
page
143
quoted
are
J.A offences
violations tending to of
against the
public or
which
peace break
constructive
is
violations
if
by
make
others
it
too wide
the
concluding to
words
others
or
constructive
violations
by
tending
make
break
it
to include of retribu
conduct
tion
likely
to produce violence
by way
against
the
supposed
does
offender
refer
OHalloran J.A
which the
criminal to no find offence case
conduct of
above we were
have
referred to
such
one
do not understand
OHalloran J.A
there
is
to
suggest
for
in his
reasons
that
precedent
the
view
S.C.R
he
that
SUPREME COURT
the
OF
CANADA
of
529
1950
appears to support
effect
finding
the
in
trial
Judge
to
on
the
grounds Common
of to generic to
stated
the
following
Fru
FEDORUK
et at
paragraph
Criminal precedent each case the
responsibility of at
law
is
primarily
to of
not
differing case as
matter
facts
of of
but
It
is
application
the
principle
the the
for
jury
apply
the
facts
they
find
Cartwright
them
verdict
generic
principle in practical
the Judge
effect
gives
them
both
the so
Thus
law
by
and
their
general
facts in
the jury
decide
the
the cf
particular
case
Littleton in this
and
have
consistently
done note
over
the centuries
155
and
fact
Coke
on
1832
case
as
Ed
vol
para
had not
The
slightest
finding
Judge
the record
shows
the
doubt
of
on was
before
offence
had
been
accused
Common Law
it is
In
of
my
in
opinion of the
when
read
against
the
background
it
the
rest
Reasons
to
of
OHalloran J.A
of
thi.s
appears
that
relation
the
facts
case
in
the
is
generic
too
principle
to
Judge
has
mind
wide
to
have
as
definition
in
be which
breach
is
the
Kings Peace
to that
attached
expression
the
Reasons
It
appears
to
me
that
so
understood
field of
the
genus
is
wide
enough
it is
to include
in
the
whole
the
criminal
law
As
put
Pollock
Law
the
1895
all
Volume
offences
22
been
said to
criminal
have
long
be
committed
against
Kings peace
and
in
Volume
of
of
the
same work
may seem breach
to
at
page
452
possible
it
is
stated
to
us
breach
the
Kings peace
cover
every
crime
is
Once
the
expression as
of
the
Kings Peace
does
interpret
to require as an essential
of
riots
of the
tumults
offender
it
or
physical
part
would
appear
to
become wide
view
as to
of
enough
to
include
any
is
conduct
which
in the
the
fact finding
tribunal
to the public
merit
punishment
intended so that lead to
it
If
give
to
on
the
to
expression only
conduct of
in
to
the peace
the narrower to
this
of which in
this
he
speaks
authorities
to
referred
elsewhere
is
show
that
not an offence
530
1950
SUPREME am
if
COURT OF CANADA
the proposition
to
of
opinion
that
para
that the the that
Fn
FEDORUK
etal
be
accepted
uncertainty leaving
to
would
of
introduce Criminal
great
into
it
administration
officer
the
Law
crime
to
to
CartwrightJ.JUdiCial
trying
any
particular
charge or be
decide
the
acts
proved
to
by
reference
or in
any
standard
the
code
reported as
to
but
acts
according
individual
of
view
whether
were
to
disturbance
the
tranquillity of people
tending
it
provoke physical
To
ence
so of
hold
would
is
seems to
to in
me
be
to
assert
what
referred
Stephens Page
claimed
is
History
the
Criminal Law
the power which anything
it
of has
to
England Volume
in
190 as
for the to
some
an been
instances offence
been which
Judges
the
of
declaring
be
injurious as
public
although
previously
regarded
such
The
this
writer
if it
continues
exists at all exists at
power
In not that
my
opinion
to
this
power
in
exist
Canada
of
is
safer
to
hold
shall
be
is
convicted charged
unless as
the offence
in
with
he
the of
such
the
provisions the
to to
be established an offence
of
by
authority the be
known
is
law
declared
think
any
course
conduct
to
now
criminal which
such
has
not
up
the
present
time
been so regarded
declaration
should
be made
by
by the Courts
the conclusion
to
Having
conduct
the
in
reached not
that
the offence
Plaintiffs
did
amount
any
criminal
known The
on the
of
to
law
the question
justified
arresting
Frey
forward
justi certain
fication
put
of
argument
all
was
based with
sections
tion of
the
Criminal Code
of
which
as
excep
their
Section
30 would
to
require
condition the
fact
justification
the
Defendants
that
some
offence 30
had
been
of
committed
to
would be but
it
no avail
be
Fedoruk
in
who was
to
not
officer
must
on
examined
regard
Stone
believes
The
that
section
reads as follows
officer for
Every an
peace
who
the
reasonable
and be
probable
grounds wan
offence
which
offender
may
arrested
without
ant has
S.C.R
been
SUPREME COURT
whether
it
OF CANADA
committed that person any
or
531
and
committed
and
is is
has
been
believes
not
who
on
1950
probable
justified guilty or
grounds
in arresting
person
such
without
warrant
REY
FEDORrJ
et at
not
of
It
may
to
be
that
Stones Statement
section as
to
Defence but
is
not
aptly
Cartwright
framed
it
raise or of
this
defence decide In
of
do not
think the
necessary
desirable the
this
point
upon
precise without
form
pleadings
the
my
the
opinion
pleadings not
assuming
permits afford
deciding
to rely for
that it
form
Stone
upon
his
this
section the
does
any
justification
arresting section
think
that
this
contemplates
Peace Officer
lieves exist in
on reasonable
of legal
and probable
of facts that the
grounds
if it
be
did
the
existence
state result
which
person
for
whom
cannot
he
was
had
be that the
commited
an
offence
which
It in
such
person
arrested
without
is
warrant
justified to
think
person
mean when
Peace Officer
true
facts
arresting Officer
are
known
the
to to
and
he erroneously
concludes
of
that they
they
amount
an offence an offence
when
at all
as
matter
law
legis
do not amount
Ignorantia
reached
non excusat
that not the
Plaintiff to
Having
mitted the as
the
conclusion
it is
com
no criminal
offence
necessary
examine
authorities
to
collected and
of
discussed
by OHalloran J.A
the
meaning
finds
the
terms found
committing
or
whom
the
he
committing
set
out
above
Fedoruk
lay upon
am
and
of the
to
opinion
that
amount
criminal
offence
failed
and
to
Stone have
of showing
satisfy
them was
some
with
justification
having imprisoned
the
Plaintiff
him
entitled
agree
to
Robertson
as against
J.A
both not
that
succeed
Defendants vary
the assessment of the
would
posed not ask
damages
counsel think that
pro
does the
by
Robertson
they be
J.A
increased are
in
The
and
Plaintiffs
that
do not While
amounts
Robertson brought
that
his
suggested
excessive sense
agree
with
J.A
that
the
whole
matter
facts
was
upon
arrcst
the
Plaintiff
remain
was
effected
threatening
716691k
532
1950
deadly
weapon he was
subjected
all to
deprived
of
his
liberty for at
FREY
several the
hours and
some minor
justification
indignities
in
without
allow
any
the
law
that
etat
In the
would
appeal and
for
direct
CartwrightJ.jUdgment
against
costs
Fedoruk
the
this
Stone
for
of
appeal
the
Court
of
Appeal and
of the
appeal to
against secure
Court
There should
unless
be
the
action
to
the
Respondents
able
an order under
section allowing
77 of
of British
far
Columbia
issue of
him
is
as
the
false
arrest
concerned
Appeal allowed
for
with costs
Solicitors
the
appellant
Fleishman Angelo
Solicitor
for
the respcndents