Chapter One: Constitutional Sources of the Criminal Law and the Criminal Code



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Criminal Law

RENKE, 2012-2013


Chapter One: Constitutional Sources of the Criminal Law and the Criminal Code





  • Section 91: defines the jurisdiction of the federal courts

  • Section 92: defines the jurisdiction of the provincial courts

  • Legislative Authority:

    • Malmo-Levine and Caine asked the court to consider whether Parliament has legislative authority to criminalize simple possession of marijuana.

    • Appellant Caine contends that parliament has no power to criminalize the possession of marijuana under either residuary power of peace, order and good government (POGG) or the criminal law power.

    • Caine further argues that the Crown is resorting to a “shifting purpose” from one of racism to one of public health protection; BRAIDWOOD, J.A. noted that the prohibition always had more than one rationale.

    • For a law to be classified as criminal, it must possess three prerequisites:

      • 1) have a valid criminal law purpose

      • 2) be backed by a prohibition, and;

      • 3) be associated with a penalty.

    • The criminal power extends to those laws designed to promote public peace, safety, order, health or other legitimate public purposes.

    • Margarine Reference: “evil or injurious effect.”

    • The purpose of the NCA (protection of vulnerable persons being one) fits within the criminal law power.

    • R vs. Keshane (“Public Places Bylaw” – Edmonton): was alleged to be ultra vires the jurisdiction of the municipality because it was serving a criminal law purpose (Federal Authority under s.91 of the Constitution Act, 1867), however, an analysis of the “pith and substance” of the law determined the true purpose of the legislation was directed at providing safe and enjoyable public places by deterring public fights.

    • Characterizing the “Pith and Substance” of the Law - Must Look at:

      • Intrinsic Evidence

      • Extrinsic Evidence

      • Purpose

      • Legal Effect

      • Practical Effect

      • Once the pith and substance is determined, one must determine who has jurisdiction to make this type of legislation.

    • Westendorp vs. The Queen (Calgary Prostitution Bylaw):” was struck down because it prohibited a person from remaining on the street or approaching another person for the purpose of prostitution – “pith and substance” was determined to be criminal in nature and ultra vires.

    • R vs Swain: challenged whether dealing with persons acquitted from criminal charges by reasons of insanity was ultra vires criminal legislations jurisdiction; “pith and substance” was determined to be the protection of society from dangerous people who have engaged in criminal conduct; lack of criminal penalties does not automatically mean the objective is treatment and outside the scope of criminal law power;

  • Charter of Rights and Freedoms was introduced on April 17, 1982

    • Subjects criminal legislation and executive action to the higher law of the Charter under s. 52 of the Constitution Act, 1982.

    • Charter analysis has two main stages:

      • 1) the party must demonstrate the state has limited a Charter right.

      • 2) the court determines whether the limitation is justifiable under s.1

        • the legislation is “pressing and substantial” and

        • “reasonably and demonstrably justified”

  • Charter Violations:

    • Malmo-Levine argues that smoking marijuana is integral to his lifestyle and the prohibition and criminalization is an infringement of his s. 7 right to personal liberty.

    • Caine argues that the potential imprisonment for possession of marijuana is not in accordance with the principles of fundamental justice.

    • Arguments brought fourth against the Charter:

      • Legislation must balance the interests of the individual and society.

      • Constitution cannot be stretched to afford protection for whatever activity a person chooses to define as central to their lifestyle.

      • Incorrectly argued that the only permissible target of the criminal law is harm to others – “harm principle” is not a principle of fundamental justice.

      • “Harm reduction” argument (ppl will use responsibly) cannot be assumed.

      • “Pleasure principle” can only be assessed under s.1 after the violation of Charter rights is established.

      • Claim that the law is arbitrary was struck down: purpose is protection of vulnerable persons which cannot be identified before hand.

      • Criminalization is disproportionate: acceptable standard is of gross disproportionally; not grossly disproportionate to goal and imprisonment is generally reserved for trafficking or harder drugs

  • R vs. Heywood: found that banning persons previously committed of a sexual assault from loitering at or near a playground or public park to be overbroad in the sense that there was a lifetime ban without review, applies to all public parks and play areas, and all persons convicted to Section 179 without consideration of whether they are harmful to children.

  • Bedford vs. AG Canada: contested the Constitutionality of three Criminal Code provisions relating to prostitution:

    • 1. Section 210: prohibits the operation of common bawdy-houses.

      • Appeal court agreed it was unconstitutional and order a redraft.

        • Engaged right to liberty with the potential of imprisonment.

        • Engaged security of the person because the legislation interferes with their ability to protect themselves in a significant way.

        • Objective was safeguarding the public peace and protecting against corruption of morals; to recast the objects would go against the principle against shifting purposes.

        • Not arbitrary. Some connection to original purpose.

        • Overbroad in that it prevents conduct that doe not contribute to the social harm sought to be curtailed.

        • Disproportionate in that the impact on prostitutes is extreme.

    • 2. Section 212 (1): prohibits living on the avails of prostitution.

      • Appeal court found that it criminalized non-exploitive, commercial relationships that could help protect the prostitute and order a read in of words of limitation.

    • 3. Section 213 (1): prohibits communicating for the purpose of prostitution.

      • Appeal allow; appeal court did not believe the ban was unconstitutional.

    • Laws exacerbate the harm that prostitutes already face by preventing them from taking steps to enhance their safety.

  • Principles of Fundamental Justice:

    • Laws must not be arbitrary.

    • Laws must not be overbroad.

    • Laws must not be disproportionate.

    • Laws must not shift purpose.

    • NOT the “harm principle” (as seen in R. vs. Malmo-Levine). 

    • NOT the codification of criminal laws (as seen in United Nurses of AB v. AG of AB)

  • The Criminal Code:

    • A collection of statutory rules; contains rules establishing prohibitions, duties, penalties and procedures.

    • Also contains some evidential rules

    • Allows for common-law defenses and but not common law offences (save contempt in court)

  • R v. Kirzner: defence of entrapment was not open to the accused; no such defence is available in England and that U.S. judgments dealing with entrapment have not been applied in Canada

  • United Nurses of Alberta (UNA) v. Alberta: charged with contempt of court (uncodified offence)

    • Argument was the codification of criminal offences is a principle of fundamental justice

    • SCC disagrees: common-law offence of contempt of court is constitutional and has existed for centuries; furthermore, “definition of elements of codified crimes not infrequently requires recourse to common-law concepts. – C.J. McLachlin”

  • R v. Vu: charged Vu with unlawful confinement but acquitted on kidnapping charged; taken to SCC; argues that kidnapping was not a continuing offence but rather that it ends after the moment of the taking at which point unlawful confinement begins and is the continuing offence;

    • At common-law: an aggravated form of unlawful confinement = continuing offence

    • Codification was a big step for common-law; did the codification change the common-law definition? SCC says that statutory changes do NOT change the common-law definitions.





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