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WDW101Y1 Lecture Notes - Fundamental Justice

Woodsworth College Courses
Course Code
David Davies

of 12
Thursday September 30th 2010
Lecture 2
Limits on Criminal Law (part II) Canadian Charter of Rights and Freedoms
1. Only the Federal government can enact criminal legislations. 91 (27)
2. Criminal law in Canada is CODIFIEDno “common law offences” – s. 9(a)
Note: the same does NOT apply for defencess. 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 timeif you can convince to agree with you you
can create a defence
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 harminteresting to note that its NOT one of the broad categories-
Question: Does “crimehave 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)
Section 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 effectcannot
enact laws that are inconsistent with the constitution, absolute rule BUT assuming they DO enact
one you don’t strike down the whole actonly 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
Already talked about how can be inconsistent with ss. 91/92 (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
unreasonablewhere 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
Talking about HOW the rights in the charter limits and restrict the power of the federal
government to create crime
Substantive Rights
Section 2 – Fundamental freedomsEveryone has the following fundamental freedoms:
a)Freedom of conscience and religion;
b) Freedom of thought, belief, opinion and expression, including freedom of the press and
other media communication; (most often used to try and strike down criminal law)
c)Freedom of peaceful assembly; and
d) Freedom of association
Section 7
Life, liberty and security of the person
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
Guarantees 3 rights: (1) Life; (2) Liberty; and (3) security of the person
Guarantees 3 distinct thingslife, liberty, and security of the person
liberty = go about your business without the restrictions of the governmentrestrictions could be
preventing you from going where you want to, most extreme is prison
Security of the person = means your physical and psychological integrity – state is not entitled to do
something that causes serious harm
Internal Limit
only a problem if inconsistent with the “principles of fundamental justice” – the government is entitled
to legislate and create laws which infringe your rights to life liberty etc. as long as they do it in a way
thats consistent with the principles of fundamental justice
This is why common law principles are so importantthere is no list of fundamental justice!!! It’s
all in CASE LAW, judges from time to time are asked to determine whether its a principle of
fundamental justice