S.C.

STJPREME

COURT

OF CANADA

517

BERNARD FREY

PLAINTIFF AND

APPELLANT

1950

Feb7 Apr 25

STEPHEN FEDORUK AND RICHARD PERCY STONE

DEFENDANTS
ON APPEAL FROM THE
BRITISH
Criminal
to

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

proofCriminal Court Act R.S.B.C 1936

of

Code
66

ss

80

646

647

648

650
after side

77 by respondent
looking was
into

chased seen the

caught on

and

detained

Fedoruk
lighted for

been
of

Fedoruks
where

property

window
policeman tion

house

woman
was warrant
act in

preparing
after

bed

the other respondent appellant he without did

called

and

some investiga

arrested

On

charge breach Police

of

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

was that and

affirmed

by
had that

majority been there appeal

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

the Criminal Rinfret

Code Rand
Kellock Locke

PRESENT
and Cartwright

C.J and Kerwin Taschereau

JJ

518
1950

SUPREME COURT OF CANADA

Held
also Section only
if

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

warrant that the

FEDORUK
et at

has
facts

been

committed but not if he amount to an offence when as Conduct

of offences

erroneously matter
of

law they do
falling

not
any

KerwinJ

Held

further

not

otherwise

criminal and the criminal

not

within not

category criminal provoke breach they

to of

defined natural

by
and

law

does thereof
likely

become
be
to

because others the

this
if

probable

result acts

will to

to

violent are

retributive

action

cause because

peace

not
It of
is

in

themselves Parliament which be

so

criminal and not

merely
for to

have

tendency
course

for

the Courts the present

decide

any
as

conduct
is

has not regarded did

for

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

warrant and 650

under
afford

647

the Criminal
either

Code

Sections
since

30

648

no

assistance

respondents

no

criminal

offence

was

committed

APPEAL
British the

from the judgment

affirming the
trial

of

the

Court of Appeal

for

Columbia by

Robertson
of an

JA

dissenting

dismissal

judge

action

for false

im

prisonment

and malicious

prosecution appellant Meredith

for

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

appeals British as the

of

the

Court

Appeal
so

Columbia

affirming

by

majority

far the as

defendants Fedoruk
of the
for

and Stone are concerned

trial

dismissal
tried

action

by

the

judge

The

action

was

false

imprisonment and malicious

dismissed as against

prosecution

but the on the appeal follow

action
latter

stands
issue

all

defendants
it

and we are not concerned

for false

with

in

this

The
ing

claim

imprisonment arose from the though

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

on the truck and walked

the

to the

house

occupied

by

defendant

his wife

and mother

There he peeped through

95

Fedoruk window

Can

CC

206

S.C.R

SUPREME COURT OF CANADA

blind
six to

519

Upon which there was no had been drawn to within

and was
in

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

Upon Fedoruks shouting but was caught by Fedoruk

while the lant the appellant
of

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

back to the house Constable

after

notified police

appel The
officer

defendant

Stone

and

another

came and
footprints arrested

investigating the

thoroughly by examining
other

the

upon

the

dewy ground and in and took him to appellant

charged that
to

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

followed There was agreement

trespass criminal the peace not
in

the

Court of Appeal that

breach
of

bare
is

amounting

to

of

the

peace

not

offence

The
and

difference that

opinion

arose between

majority who had occurred

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

would seem conduct

not did

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

statement page 298

breach committed

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

SUPREME COURT OF CANADA

As
authority
for

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

report con defendant

KerwinJ

argument

of Sergt Talfourd

including well
It
is

interpolations significant
that
of

by Chief Justice Tindal and Cress

It

is

reads
sufficiently discloses

submitted the time

the

plea

breach the
plaintiff

of

the

peace
force

at

the
to

arrest the house

After and
to

stating violently

that rang
it

with

and
so

arms came
doing
after

the bell and that

in

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

defendants was over

door
at

was

held
of

bad
the

because
arrest

appeared

disturbance

the time

Tindal
the

C.J

And
in

although

the plea stated

to

that

the defendant Cresswell been place

are

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

Cresswell the that

plaintiff

Suppose

is Every trespass blown horn

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

committing breach had

time

giving

the that

plaintiff there

custody

been
its

committed and renewal case

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

said his for

he

not

pay
had that

Angry
to

words he

passed was
the

leave sent

house
police

refused and

do

unless

locked
if

up

in

paid Upon watch-house

Held

by
would

Lord

Tenter
been
in

den

C.J
in

was

making
of his

disturbance

have

justified

turning

him out

house but that he

was

not

justified

imprisoning

him
the
in

Notwithstanding lant
that ing
find

contemptible actions

of

the

appel
judge

myself

agreement with the

in

dissenting
all

the appellant

did

circumstances
it

not even breach commit

for

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

might arrest without

the

warrant
Section

under sections 30 authorizes 1843

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

no criminal 648 section

any one

FEDoRv
etal

may

warrant

whom

he

finds

Cartwright

any

criminal

affords

no

assistance

to the

respondent

Stone

even

if

it

could be said that he had found the appellant Similarly section

committing
the respondent

650 affords no assistance

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

not apply since

should

be allowed
for

and

judgment

should

be

the

appellant

the

amounts

fixed

by

Mr
that

Justice Robertson is against

as to which
for

no question and
against

was raised
Stone
for

Fedoruk
is

$10

$50

The
and

appellant
in this

entitled to his costs in the Court of Appeal

Court

There should
so far as

be no
the
is

costs

of the
of false

action arrest

against
is

the

respondents unless the of

issue

concerned

appellant

able

to secure

an order
British

under

section

77

the

Supreme

Court

Act

of

Columbia The judgment

of the Chief Justice

and

of Taschereau delivered as

Rand

Kellock

Locke and Cartwright This

of

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

Stone were warrant In

this

justified

arresting

Plaintiff

without

Court

the

appeal was which

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

were only partially drawn

frightened

and

522
1950

SUPREME COURT OF CANADA

to

her son

who The

seized
Plaintiff

butcher knife

and ran outside

just leaving

He

shouted at the FEDORK

etal

who was

then
to

Fedoruks
chased
Plaintiff lights

property

Plaintiff

started yards
to

run
his

Fedoruk
the

him about one hundred

trying the
his

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

had been peeping he him to arrest and took

confined There are allegations
that the to

the Police

he was under where he was

Station

in the pleadings assaulted

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

his factum limited as

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

unani Watt and

and from

mously awarded
this

allowed the

appeal as to the Defendant $100 damages against

Plaintiff

him

award Appeal

no appeal was taken

dismissed the

The J.A

majority

of the Court as against

of

Plaintiffs

appeal

Fedoruk and Stone

allowed the

Robertson
to

dissenting would have

also

appeal as
the

these

Defendants

and would Fedoruk

to

have awarded and

the

Plaintiff

damages of $10 against Leave

to

$50 against
Plaintiff

Stone
the of

appeal was granted

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

son J.A was

criminal

of the

view

on the

offence

was

committed
95

by

the

Plaintiff

Can C.C 206

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

the action need

imprisonment that
facie

ment
or

the

plaintiff

not

prove prima the

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

legally justifiable consists of followed

brief

The

justification

pleaded
facts

by Fedoruk
above
Plaintiff

statement

of

the

outlined the

by the

allegation

that

fearing

that

was under the circumstances was

likely

in question doing

an act which

to cause lawful

breach of the
excuse into the

peace

to

without any

windows

of his the

wit peeping mothers

Plaintiff

bedroom
through
of the

while

hiding

outside

he

pursued
the the
is

his property
of

and

arrested

Plaintiff

because

violation

law committed pleaded

by

said Plaintiff that

The
the

justification

by Stone
of

he

placed of

Plaintiff

under arrest by reason

Plaintiff

the
to

commission
cause

an act by the said

of the peace

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

preparing explanation the

It

bed

and only

after having

investigated

given could not

by
be

the
in

Plaintiff

and having with the

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

manner likely the window through

of

cause
the

breach house

the peace

against to

the peace
of

our

the form

Statute

in

Lord the King his such made and case

Fedoruk there Crown and dignity

provided

524
1950

SUPREME COURT OF CANADA

On
offence
and Peace this

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

OHalloran J.A who

quashed
It

was

member

of

which

the

conviction of the the

Plaintiff

would appear that the acquittal

charge as
their in

on the from

criminal

does

not

preclude
for

Defendants

showing
that

justification

having
the

imprisoned him
of

he had

fact

committed See Cahill

offence

which

he

had been acquitted

Field

Fitzgibbon

and Cook

OHalloran J.A with whom

stated offence his conclusion at that the in the
of

Sidney Smith J.A agrees

Plaintiff

had committed words

by acting
disturbed

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

applicable wider any

riots

tumults goes
of to so

and deeply

actual
into

physical the
of roots

violence
of

the other and

one

which

the

Common law viz

if

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

Criminal conduct through

Code

does

make

Plaintiffs

criminal

and that at
16

Common Law
371

merely looking 1788 Esp

133

1885

L.R

S.C.R window
goes at

SUPREME COURT OF CANADA

night that
its
is

525

not

in

itself

criminal
in

offence the act

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

that the circumstances

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

the intruder was the

street

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

did not out that

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

with the intention

to

of taking

possession act of the not

and has no reference

trespass conclusion such
of

an isolated and
in this

temporary
agree
Plaintiff

as

occurred

case
the

with
did

Robertson

J.A

that

commit any

criminal

offence case to in which the

We
offence

have
of
It

been referred to no reported

conduct

peeping
is

tom

was

held the

be

criminal

well settled 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

criminal it and evidence

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

any attempt anyone

facts

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

act and hoped discovered fact

he would not be discovered

ran at

When
opinion

he was
the

he at once
his presence

away
night

In

my

mere

that

in close

526
1950

SUPREME COURT OF CANADA

proximity to the
of frightening the

window
inmate
at

would
of

have

the does

probable not

effect

FREY

the

room

make such

conduct
Ctal Cartwright

criminal agree such the

Common Law
the

While

with

view
if

expressed

J.A

that

conduct

discovered

by OHalloran would naturally

it

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

as defensive retributive person of any think against

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

safe to hold criminal

matter
falling

law

that

conduct
category

not otherwise
of offences

and not
the

within

any

defined

by

Criminal probable retribu seems

to

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

of insulting words unaccompanied

by any threat
does

undoubtedly
retributive of adultery discovered pressly
If
it

may
action

and
but

sometimes
is

produce

not criminal
cases

The commission when unexpectedly

except

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

to provoke that great the

way
such

of retribution

seems
think

me

uncertainty of

would result supposed

do not

safe

by

application

principle to declare to the

an act or acts criminal

to be criminal

which have
in

not up

present been held

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

to be supported by that acts

In

my

view

it

has been rightly held

are nOt

cause

breach of the peace

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

which such from

civil

conduct can be dealt with

proceedings
to

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

peace and be OfcartwrightJ

good behaviour This appears to be the view of Lord Goddard with

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

Country not intended would and

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

windows by make was

far as strife

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

this offence of are

common law
or

follows

therefore

nobody modern
caused days

convicted which the

eavesdropping mentioned
for

nightwalking

many
doubt
cities in

the other

matters times the were

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

page 256 points behaviour

man may
scandal

his good

contra

bonos mores as well as 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

L.JR 472 L.T 547 at 548

.KB
1937
53

192

T.LiR

680

528

SUPREME COURT OF CANADA

1950

Kings Bench Division Hewart

naghten
It
is

FRET FEDOBUK
etal Cartwright

C.J
and
stated

and

the

The judgment other members of JJ

agree that 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

persisted inspector peace

such conduct
previously

despite there

protest

of

police

that

had

been

breaches

of the

at the colliery lead to

and that the appellants breach

of

conduct Davies
tions

was

such

as might convicted

the

peace

had been

by

justices

on two informa

preferred
first of

against

The

these

him by the respondent Griffiths was having on August 18 1936 been

Taff

guilty of conduct near the

Merthyr
of

Colliery

Gelligaer to the that

which might lead to breaches

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

information course open

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

that the course which

fined

the on

justices

was
that he

course not open committed so doing

They
in

the

appellant
to

the

basis

them sub
erred

stantive point

offence of

which

penalty

might

apply

they

law the -definition

of

view Whartons Law by Rthertson

either actual

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

are intended only

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

any reported case in peeping torn has been held to be

not
to

As mentioned by counsel and

above we were
have

referred to

such

not been able

one
do not understand

OHalloran J.A
there
is

to

suggest
for

in his

elaborate that the

reasons

that

precedent

the

view

Plaintiffs conduct in this case

was criminal Rather

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

the evidence criminal

before
offence

him that what the appellant

at

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

which the learned any

value
of

Judge

has

mind

wide
to

have

as

definition
in

The genus appears

the wider signification elsewhere 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

and Maitland History of English page

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

interpreted it not nature the

OHalloran J.A undoubtedly

ingredient actual

interpret

to require as an essential
of

anything in the violence on

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

so injurious the other

to the public

merit

punishment
intended so that lead to
it

If
give
to

on
the

to

expression only

hand OHalloran J.A more limited meaning

nature sense
likely

would include breach

the
of

conduct of
in

to

the peace

the narrower to
this

of which in
this

he

speaks

authorities
to

referred

elsewhere
is

Judgment seem to me known to the law

71669i

show

that

not an offence

530
1950

SUPREME am
if

COURT OF CANADA
the proposition
to

of

opinion

that

implicit in the think

para
that the the that

Fn
FEDORUK
etal

graph quoted above ought not adopted

it

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

constituted defined decisions such

otherwise not found

to his in

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

reprisal the exist

of

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

may not have

previously

regarded

such

The
this

writer
if it

continues
exists at all exists at

power

Common Law has not been held and should

think crime
it

In not that

my

opinion
to

this

power
in

be held no one which

of

exist

Canada
of
is

safer

to

hold

shall

be
is

convicted charged

unless as

the offence
in

with

he
the of

recognized or case can as

such

the

provisions the
to to

Criminal Code some

reported that
if

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

Parliament and not

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

whether the Defendants were

presents
in little difficulty

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

affording criminal Section peace

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

reasonable that such offence person

probable
justified guilty or

grounds
in arresting

person

has committed whether

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

Plaintiff the situation where

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

would have the

arresting could

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

For the reasons

out

above
Fedoruk
lay upon

am
and

of the
to

opinion

that

Plaintiffs conduct did not that the the

in

amount

criminal

offence
failed

and
to

Defendants onus which

law
for

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

by himself the by Fedoruk by the

remain

was

effected

threatening

716691k

532
1950

SUPREME COURT OF CANADA

use
of

deadly

weapon he was
subjected
all to

deprived

of

his

liberty for at

FREY

several the

hours and

some minor
justification

indignities
in

police station result

without
allow

any
the

law
that

etat

In the

would

appeal and
for

direct

CartwrightJ.jUdgment

be entered $50 with

against
costs

Fedoruk
the
this

$10 and against

to

Stone

for

of

appeal

the

Court

of

Appeal and

of the

appeal to
against secure

Court

There should
unless

be
the

no costs of the Appellant

is

action
to

the

Respondents

able

an order under

section allowing

77 of

The Supreme Court Act

costs of the action so

of British
far

Columbia
issue of

him
is

as

the

false

arrest

concerned

Appeal allowed
for

with costs

Solicitors

the

appellant

Fleishman Angelo

and Fleishman Branca

Solicitor

for

the respcndents