July 14, 2011 - Common Law Defence

Common Law Defence
In section 80 of the Provincial Offences Act (POA) we read:

Common law defences
80.  Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of offences, except in so far as they are altered by or inconsistent with this or any other Act. R.S.O. 1990, c. P.33, s. 80.

Calling this section to the judges attention caused a fifteen minute recess in one of my cases.

Later, in her judgement, she ignored every common law defence made. I'm of the opinion that to acknowledging this as a legitimate defence leaves her without a justiciable case.

The clause, "except in so far as they are altered by or inconsistent with this or any other Act." needs to be understood in the light of the maxims of law which state:

"When the common law and statute law concur (meet together), the common law is to be preferred. 4 Co. 71."

"A maxim is so called because its dignity is chiefest and its authority is the most certain, and because it is most approved by all."

When these meet together on a point of law, common law has priority, that being true, the clause of section 80 above regarding inconsistency cannot be an issue, and no inferior act can alter a maxim or common law. 

What can a judge do when the only witness to a POA offence admits, under oath, that there was no injured party to the offence and then you point to the maxim of law which states:

"An action is not given to him who has received no damages."

There is no legitimate cause of action where there is no injured party. HER MAJESTY THE QUEEN, the plaintiff in these cases, was not even present—sorry, that is an assumption on my part. Just because I didn't see HER doesn't mean SHE or it wasn't there. In any case, SHE or it wasn't injured.

What can a judge do? He can try to ignore you ever brought this stuff up...

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