Constitutional Limits on Criminal Law 1
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- Constitutional Limits on Criminal Law
- Federalism / Division of Powers
- Vagueness, Arbitrariness, gross disproportionality, overbreadth
- Harm principle – not a PFJ… good try.
Table of ContentsConstitutional Limits on Criminal Law 1 Criminal Law may not be retroactive. 1 Federalism / Division of Powers 1 Vagueness, Arbitrariness, gross disproportionality, overbreadth 1 Harm principle – not a PFJ… good try. 3
Fair Notice / Principle of Legality 4 Interpreting the CC 4 Burden of Proof 4 Quantum of Proof 5
Components of the Actus reus 5 The actus reus must be “physically” voluntary 5 Criminalizing Omissions 6 Contemporaneity 7
Factual Causation 8 Legal Causation 8 Intervening Causes 9 Mens Rea 10 Objective considerations as evidence for subjective state of mind 10 Relationship between desire and intent 10 Distinguishing intention from motive (R v Lewis) 10 Subjective states of mind 11
History 12 The CC contains 5 categories of objective fault offences: (ADH) 12 Absolute and Strict Liability 13 Definitions 13 Interpretation: What type of mans rea does this offence require? 13 Constitutionality: Is the reduced mans rea requirement imposed constitutional? 14
Actus Reus – Homicide (CC 222) 15 Manslaughter 16 Murder (CC 229) 16 1st degree or 2nd degree murder 17 Sentences for murder 18 Attempt to commit murder – CC 239 18 Provocation 18 Sexual Assault 20 Actus Reus 20 Mens Rea 20 Charter Concerns 21 Necessity 21 Duress 22 Statutory defense of duress 22 CML defense of duress 23 Summary: 23 Mental Disorder 23 Unfit to stand trial 23 Defense of Mental Disorder 24
Self-induced intoxication 26 Self-Defence 27 Constitutional Limits on Criminal LawCriminal Law may not be retroactive.Charter s11. Any person charged with an offence has the right (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. Federalism / Division of Powers
Vagueness, Arbitrariness, gross disproportionality, overbreadth7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The Section 7 jurisprudence on vagueness, arbitrariness, overbreadth, and gross disproportionality limits the federal government’s criminal law. Criminal laws depriving a person of a s7 interest (life, liberty, or security of the person) must, in the absence of s1 justification, accord with the principles of fundamental justice. It is a principle of fundamental justice that laws may not be vague, arbitrary, overbroad, or grossly disproportionate. Vagueness: A law is unconstitutionally vague if it does not permit people to know when they are entering a zone of risk of criminal sanction (“fair notice”), when it does not provide intelligible guidance to law enforcement officials (limiting their discretion), and/or when it does not provide an adequate basis for legal debate and analysis (Canadian Foundation for Children; NS Pharma) Failed in NS Pharma, Failed in Canadian Foundation for Children. Traditionally, Heywood is cited as an example, but after Bedford, which clearly distinguished overbreadth from vagueness, Heywood seems to stand better for the prior.
Arbitrariness: A law is arbitrary when there is no rational connection between its object and effects. (Bedford) E.g. Morgentaler: Provision required therapeutic abortion committee approval. Purpose was to protect women’s health. Provision did nothing protect women’s health and, in fact caused delays. E.g. PHS: Drug possession laws precluded operation of safe injection centre. Objective of possession laws was protection of health and safety. Safe injection centre in fact advanced this objective.
E.g. Bedford: the “living on the avails provisions” (CC 212, prior to C-36) were overbroad because while their purpose was to protect prostitutes from exploitation, they captured not only exploitive conduct (of, for example, pimps), but also non-exploitive conduct (of, for example, drivers, bodyguards, etc.) that in fact protected prostitutes. E.g. R v Heywood: provision prohibited offenders convicted of certain offences from “loitering” in public parks. Purpose: to protect children from sexual predators. Overbroad b/c applied to offenders who did not constitute a danger to children, and to parks were children were unlikely to be present.
E.g. Bedford: the bawdy house and communication prohibition provisions (CC 197, 210, 212(1)(j), 213(1)(c), all prior to C-36) were grossly disproportionate. Their purpose was to forbid prostitution as a nuisance; to prevent harm to communities where prostitution was carried out in a notorious or habitual manner. Their effect was to place prostitutes lives and security at risk by pushing them towards more dangerous forms of prostitution (e.g. “out-calls) and by preventing them from screening their clients. E.g. a measure with the purpose of keeping streets clean is grossly disproportionate if it imposes life imprisonment for spitting on the sidewalk. E.g. PHS: Minister’s refusal to exempt the safe injection site from drug possession laws because the effect of denying health services and increasing the risk of death and disease of drug users was grossly disproportionate to the objectives of the drug possession laws, namely public health and safety. A determined Parliament can, by explicitly defining its objectives broadly, mitigate the degree to which s7 constrains its ability to adopt criminal law. This occurred, for example, with Bill C-36, which re-enacted provisions functionally similar to the ones that the SCC struck down in Bedford. C-36 makes clear its purpose is not merely to protect prostitutes from exploitation or address the nuisances of prostitution, but rather to prevent the exploitation, objectification, and other social harm that is “inherent” in prostitution. It is unclear if this more broadly framed purpose would address overbreadth by covering effects that appeared unrelated to the narrower legislative purpose, or would address gross proportionality in light of the revised purpose’s greater importance. This is an example of the courts altering criminal law lately. How might Malmo-Levine be decided today?
Harm principle – not a PFJ… good try.Malmo Levine, SCC, 2003 () The possession offence in the Narcotics Control Act is constitutional. The accused sought and failed to establish the “harm principle” as a fundamental justice, arguing that it is (where a s7 interest is implicated and there is no justification under s1) unconstitutional to criminalize conduct that does not harm others. Mill’s harm principle: government cannot wield its coercive power to achieve solely moral ends. Rather, it may only act to prevent harm to others. The court devised and applied a test for determining whether something is a principal of fundamental justice. It found that the harm principle is not one, first because there is no societal consensus regarding harm principle (non harmful offences like cannibalism and bestiality are criminalised), and because it would not result in a manageable standard. (people disagree on what qualifies as a harm, as illustrated by this case)
The harm principle as a PFJ limits what the legislator can do. The harm principle as an interpretive principle helps explain, where this is unclear, what the legislature did. Legislature could simply have outlawed swinging, instead of outlawing “indecency”. This likely would have survived a challenge
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