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Intro to Criminal Law and Constitution.docx

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Simon Fraser University
CRIM 230
Peter Smith

What is Criminal Law: - Two main sources of criminal law: - -> from the “lawmakers” – constitution act (BNA act) gives federal government exclusive criminal law making power (s.91(27)); - *criminal code - *controlled substances act - *income tax act - -> from the judges – interpretations and decisions from them constitute the common law Stare Decisis: - “to stand by things decided” - Lower courts must abide by the decisions made by higher courts (precedent) - Supreme Court of Canada - Supreme Court of Canada - BC Court of Appeal - Alberta Court of Appeal - BC Supreme Court - Alberta Supreme Court - Persuasive on other courts - Binding versus persuasive - Other jurisdictions - Distinguishing on facts - Distinguish by saying facts are different (different matter entirely) or distinguish by saying too much time has passed (things have changed, people have changed their minds, etc) Is the Law Itself Always Constitutional: - Is the law compatible with the constitution act (2 sub questions) - -> was the law passed by the proper government, or “head of power” - -> is the law consistent with the charter of rights Division of Powers: - Constitution act divides law making powers between the federal and provincial governments - S.91 lists areas governed by federal government (including criminal law making power under 91(27)) - S.92 lists areas governed by provincial government (including health, education, highways, regulation of property and civil rights) What’s the Point: - Law purported to be criminal law passed by the federal government that actually belongs under a provincial “head of power” might be void as ultra vires the government that enacted it - Conversely, provincial law that is properly categorized as criminal law would be ultra vires the provincial government, and possibly invalid How to Identify Criminal Law: - Margarine reference (1949) – federal government prohibits production and sale of margarine (to protect the dairy farmers) - Is this valid exercise of federal criminal law power - Supreme Court of Canada said criminal law prohibits, with penalty, activity with an “evil or injurious or undesirable effect…with a view to a public purpose which can be supported as being in relation to criminal law… *such as+ public peace, order, security, health or morality” - Prohibition, with penalty, of an “evil” in the interest of order, health or morality What is “Evil”: - Hydro Quebec (1997) – is pollution evil - Supreme Court of Canada found that “pollution is an evil that Parliament may legitimately seek to suppress” as a public purpose of “superordinate importance” - Malmo-Levine/Caine – is possession or trafficking of marijuana evil - Reasonable apprehension of harm is enough to prohibit a substance as criminally illegal - “control of a psychoactive drug that causes alteration in mental functions raises issues of public health and safety, both for the user and those in broader society…the use of marijuana is therefore a proper subject matter for the exercise of the criminal law power” - But Arbour said if “parliament relies on protection of health as its legitimate public purpose, it has to demonstrate the injurious or undesirable effect” Colourability: - Firearms Act (2000) – federal gun registry system enacted, which Alberta challenged as an encroachment on civil and property rights - Supreme Court of Canada said law was “in pith and substance, directed to enhancing public safety by controlling access to firearms” - Morgentaller (1993) – in 1988 abortion provisions of Canada Criminal Code found unconstitutional – Nova Scotia responds with Medical Services Act - Supreme Court of Canada said Medical Services Act was “in pith and substance”, criminal law, and thus ultra vires the provincial government “the primary objective of the legislation was to prohibit abortions outside hospitals as socially undesirable conduct, and any concern with *public health+ was merely ancillary” - Ontario AG versus Chaterjee (2009) – provincial forfeiture of POC (Proceeds of Crime) legislation - Supreme Court of Canada said legislation was properly enacted under “property and civil rights” because pith and substance of the law as to “deter crime and compensate victims” - Supreme Court of Canada noted that crime deterrence and victim compensation likely fall under both federal and provincial heads of power - Also note Sivia case (2011) from BC Supreme Court and ARP (Automatic Roadside Prohibition) regime Division of Powers Review: - If addressing a division of powers question: - -> constitution empowers federal and provincial governments to pass law under s.91 and 92 respectively - -> federal government has power to pass criminal law under s.91(27) - -> proper criminal law prohibits, with penalty, an “evil” in the interest of order, health or morality (margarine reference) - -> “evil” may be inferred from societal importance (Hydro-Quebec) and/or apprehension of harm (Malmo-levine) - -> ask, what is real “pith and substance” of the law, and beware colourability (Firearms Act, Morgentaller, Chattergee) - -> if “pith and substance” of the law falls under another head of power, the law is probably ultra vires the government that enacted it, unless the law has a legitimate double aspect Charter Arguments: - A law found to violate our rights guaranteed under the Charter might be invalid - Charter rights include: - -> S.7 – life, liberty and security except in accordance with principles of fundamental justice (POFJ) - -> S.8 – against unreasonable search - -> S.9 – against arbitrary detainment - -> S.10(b) – to retain counsel without delay upon arrest - -> S.11(d) – to be presumed innocent until proven guilty - -> S.15 – equality rights Three Steps in any Charter Analysis of a Criminal Law: - Find a charter breach (often 2 step process) - Determine if the breach is saved by s.1 - If there is breach that is not saved, determine what should happen Step 1 – Find a Breac
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