Limits on Criminal Law (part II) – Canadian Charter of Rights and Freedoms

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Woodsworth College Courses
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David Davies

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Thursday September 30 2010 Lecture 2 Limits on Criminal Law (part II) Canadian Charter of Rights and Freedoms Recap: 1. Only the Federal government can enact criminal legislation s. 91 (27) 2. Criminal law in Canada is CODIFIED no common law offences s. 9(a) Note: the same does NOT apply for defences s. 8(3) 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 proceedings for an offence under this Act... In reality judges can crate new defences at any point in time if you can convince to agree with you you can create a defence BIG IDEAS: 3. Three types of offences in Canada Summary, Indictable and hybrid (choice is the crowns) 4. Not all penal legislation enacted by the Federal government is valid (margarine Reference) - in order to be valid it ahs to be written in the right form: CRIME = prohibited Act (has to have notice) + Penalty + Proper criminal Law purpose (peace, order, security, health, morality) - in here nothing is there about preventing harm interesting to note that its NOT one of the broad categories- Question: Does crime have to prevent some identifiable harm to be valid criminal law? CHARTER limits on Criminal Law RULE: Parliament is not entitled to enact criminal law that constitutes an unjustified violation of one of the rights guaranteed in the CHARTER - Note: not all violations render law unconstitutional QUESTION: is the violation unjustified?- look if a piece of legislation is consistent or inconsistent with the charter Starting point: (slide) www.notesolution.comSection 52(1) of the Constitution states: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect cannot enact laws that are inconsistent with the constitution, absolute rule BUT assuming they DO enact one you dont strike down the whole act only that portion of the law that is inconsistent If law is inconsistent with the Constitution, of no force and effect 2 ways it an be inconsistent 1 = if the federal or provincial government Enacts legislation that is OUTSIDE of their jurisdiction they are inconsistent because sections 91 and 92 define the boundaries 2= if its inconsistent with the Canadian Charter of Rights and Freedoms since it is PART of the constitution Already talked about how can be inconsistent with ss. 9192 (division of power) Canadian Charter of Rights and Freedoms Part I of the Constitution Act, 1982 Forms part of the Constitution s. 52(1) applies to the Charter - any criminal law that is inconsistent with one of the provisions of the charter is of no force and effect to the extent of the inconsistency any law that is inconsistent with a provision of the Charter is of no force and effect to the extent of the inconsistency some rights limit criminal procedure ( how police investigate, how its processed etc.); others limit substantive criminal law (it places limits on the federal governments ability to actually define crime) Procedural Rights ss. 8 to 13 (search and seizure, detention, trial rights) Section 8 Everyone has the right to be secure against unreasonable search or seizure only if there unreasonable where is the boundary? Section 10(b) everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right doesnt apply to everybody, only when you are arrested or detained gives the right to call a lawyer
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