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Woodsworth College Courses
Breese Davies

Limits on Criminal Law (Part II) Canadian Charter of Rights and Freedoms The federal government of Canada enacts criminal law under section 91.27 of the constitution. In Canada there are no common law offences, for some thing to be a crime in Canada it has to be enacted and written down in the piece of legislation. We talked that most crimes are written in Criminal cod of Canada but there are other pieces of legislation that has crime in it as well as long as they are federal pieces of legislation. The same rule doe not apply for defenses. So there are no common law offences, but there are common law defenses. So judge tomorrow if I come with a brilliant idea for bringing defense that nobody has heard of, a judge can say that is a fabulous idea and I am going to create a brand new defense in Canada. So the defenses can be created and exist at common law. That is because of s. 8(3) of criminal law if you have ever heard of it. The other thing about we talked last week is that there are generally three categories of offences we talked about the summary conviction offences on the very law end of the spectrum with a lower maximum penalty but also fewer procedural protection we talked about indictable offences they are at the higher end of the spectrum which all carry higher maximum penalty for example 10,14 and life those are the maximum penalties so the maximum penalty for indictable offence would be 10 year 14 year or life that doe not mean that is what you get that is just the most that you could get, you get more procedural protection and you are entitled to a free trial for most indictable offences. Then we talked about the category in the middle we talked about hybrid offences and the crown got to choose whether they proceed the way by summery conviction or indictment. Not all legislation enacted by parliament is valid criminal law. Concluding from Margarine case is that in order for some thing to be a crime and properly enacted act crime it has to be certain form it has to be a prohibited act couple with a penal consequence this is the form in which the legislation has to exist but it also has to be for a proper for a criminal law purpose. We talked about 1.peace 2.order 3.security 4.morality as being the big fiveThe criminal code has to protect the big 5 otherwise the S.C.C says it is an invalid law which happened in margarine case. The main idea is that criminal law as to prevent those five purposes but you will notice that the prevention of harm is not one of the categories that S.C.C said is required for some thing to be valid criminal law. So there is an ongoing debate I mean not solved about preventing harm is one of the things that has to be achieved by criminal law. Thus criminal law has to be aimed at preventing some sort harm. Again it is not totally resolved but we are going to look at that when we talk about prostitution reference. That is strict what we call division of power when a criminal law is enacted. Division of power being the division of power between the federal government and the provincial government in section 91 and 92 of the constitution. The charter also imposes significant limits on the power of the federal government to enact criminal law. The general rule is that parliament is not entitled to enact legislation that constitutes unjustified violation of one of the Rights and Freedom in the Charter if violation is unjustified. (only unjustifiable rules make a law unconstitutional) Some violation is perfectly fine and some violation is not fine. More interesting, to look at whether or not a piece of legislation is or not crime the unjustifiably limits through charter rights. Most of your individual rights, the allegation of that happens in the context of criminal law. So criminal law tend to do violate most of the Charter right so not all violation of the charter are unconstitutional only those that are meant to be unjustifiable are unconstitutional so you need to know the constitution and constitution says in s.52 (1) of the constitution says The Constitution is the supreme law of Canada, and any law (federal, provincial, municipal) that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect. So if piece of legislation is inconsistent with the constitution to the extent of inconsistency of no force of effect so what that means is they could amend a criminal code and add a crime that is inconsistent with constitution. You do not get to stand up as a lawyer and say I would like to strike down the whole criminal code you do not get to invalidate an entire piece of legislation because one little section is inconsistent with the constitution it is only the part of the crime the overall legislative key that is inconsistent with the constitution that get struck down or declare to be of no force in effect. How legislation can be inconsistent with section ss. 91/92 between the divisions of power. How legislation can be inconsistent with the charter. Because the C.C.R.F which was enacted in 1982 is part one of the constitution act so the C.C.R.F is right into our constitution and as a result of that section 52 (1) applies to the charter that is how you get into strike down a legislation that is inconsistent with the Charter. Any law that is inconsistent with a provision of the Charter is “of no force and effect” (is invalid that is not going to be applied) the extent of the inconsistency and so it is important to know what your rights are how they are framed and needs for some thing to be inconsistent with the charter. It is not some thing just violation of rights therefore inconsistent. It is a much more complicated analysis than that. Another thing to remember about the Charter is: first some rights in the charter are what we call procedural rights or deal with criminal law process how it is a case gets from the investigator stage through to the courts. Second Some rights in the Charter are substantive in the sense of being if we talked about what the substance of laws can or can not be or what the substance of your right are what you are allowed to do what you are not allowed to do not the process of how you are to be dealt wit before the court. It is important to keep those two things in mind because there are different way in which the charters work depending there is a procedural right or substantial right. So procedural right generally speaking in section 8 through 14 of the Charter so for example section 8 of the charter says: Everyone has the right to be secure against unreasonable search or seizure so that is the right that gives you an extra occasion of privacy you have a right that protects you against the police you are allowed be safe from that police walking into you house and search because the police feel like it. There are certain circumstances that police are allowed to walk into your house and look around they have to get permission to do it if you give them if criminal law interacts with criminal procedure. Section 8 does not say you have the right to be free from every search and every seizure so it is not that the government enacts a piece of legislation and allows the police to search and you get to stand up as a defense lawyer and say that violates the Charter. It is only unreasonable searches and unreasonable seizures that will violate the Charter. S.8 protects against those searches of your house, your property, your backpack, your locker at park house your door knob your car any where you have an expectation of privacy your laptop cell phone it only protects against unreasonable search of all those things and the unreasonable taking of items or information from you for search. S.10(b) of the Charter Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. (again this not all the time this is triggered on certain events happening and you are arrested you are detained you are meant to contact counsel without delay.) s. 11 have a bunch of rights procedural rights about bail, jury trial and having a trial without delay but the most important one is Section11 (d) – Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal because of the foundation of the presumption of innocence it is on the crown to prove guilt. Substantive rights are found in s.2,3,4 up to section 7 the most common one is section 2 of the charter and this is the one where all s.2 protects our fundamental freedoms are outlined. This is the part where you have right a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press (to report on something) and other media communication all captured in this section (c) freedom of peaceful assembly; and (d) freedom of association(your right to join with other people like trade unions clubs or that sort of so 2 b is fundamental of substantive right it controls what sort of behaviour the government can and can not prevent you from doing it. protect substantive and procedural rihgts Section 15(1) – Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The procedural one will limit how the police can conduct investigation it is a process issue the right to obtain and instructed counsel is probably that the police have to treat you when you are arrested these are the common elements of what you can do all the time. s.7 is the most complicated right in the Charter and it is complicated because it strolls along between a procedural right and substantive right and it has an internal limit to it that is entirely confusing. S.7 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. S.7 includes 3 distinct rights you have the right to 1. life 2. liberty. 3. to security of the person. These are 3 different things. The right to life is pretty easy the right to liberty is the right to have the freedom to do what you want that is physical freedom to do what you want so any restriction on your ability to move around and do what you want is a restriction on your liberty. Another way to think about is psychological liberty. The security of the person really innate sense of human security to do what you want and be healthy and not been subjected to psychological trauma. Lots of health issues fall under the security of the person we are going to look at constitution reference and constitution given more recently talking about the security of persons 3 distinct things life, physical liberty, and psychological liberty, security of the person. So you have those three right but you are not absolute right what section of the charter says is that the government can enact legislation that infringes any one of those rights as long as they do it in a way that is in recorded with the principles of the fundamental justice. So legislation is only going to be inconsistent with section 7 of the charter if it infringes one of the 3 rights and it does it in a way that is inconsistent with the principle of fundamental justice. Criminal law is a prohibited act coupled with a penal consequence. A penal consequence always involve a potential restriction on liberty every crime has a potential of carrying a jail sentence and so every single crime in Canada is in restriction on liberty so the first part of the section 7 of analysis is met with every crime, every crime in Canada infringes your liberty but there are difference because what the S.C.C has said is in order to engage section 7 of the charter the potential of an infringement of the charter of your liberty is enough. Because every crime curries a potential of the jail time or some other restriction of your liberty, jail is the only way that your liberty could be restricted you could be on probation with the condition that you can not to a certain place you can not be with certain people you can not do certain things so there are other ways to restrict your liberty but jail is the obvious way they actually physically put you somewhere and tells you so every criminal law infringes your right to liberty. That does not mean every criminal law infringes s.7 of the charter. the next question you always have to ask your self is the law enacted in a way that is intervene with the principle of fundamental justice. So the first part of the test of s.7 is that most criminal laws infringes the next question you have to ask is was this crime enacted in a that protects or respects the principles of the fundamental justice. What are the principles of the fundamental justice? This really started with Heywood case. So the Heywood case Heywood was convicted of a sexual assault involving child that is sort of in the past but because of the fact that he was convicted of a sexual assault involving a child section 179 of the criminal code was triggered. S.179 of the criminal code basically says if you are convicted of sexual assault involving children it is an offence for you to hang around parks, schools, public bathing and playgrounds. So for the normal human being presumably most of us we can go to a park we can go and sit there we can look at children and it is not a crime. It is not a crime for any of us for going to a park. But it becomes a crime if you have been previously convicted of a sexual assault with children. You may think that is obvious and normal but Heywood gets charged with s179 and says wait this offence as drafted violates section 7 of the charter so again he is going to show it he is always going to argue that it carries a gain of mutual interest and therefore it infringes my interest. Then you go to step 2 of analysis by checking whether it violates the fundamental of criminal justice. He also said though that that offence leaving aside the possible to determine its reckless it also infringes its liberty because it says that he is not allowed to go into a park. So its got 2 different aspects of engaging of liberty interest. So it is a good example of how your liberty interest can be infringed without going to jail. The fact that you are not allowed to go some where other people are allowed to go is an infringement of your liberty interest. So the question then becomes okay this is a restriction on his liberty there is no doubt about that no point to argue about that the argument was on whether or not infringement was enacted in a way that was inconsistent with the principle of fundamental justice. The S.C.C has to say what the hell are the principle of the fundamental justice any ways and what do they mean when they drop out of the charter. It is not like you can open a dictionary and it says the fundamental of criminal justice and could be easily listed so the S.C.C have to give meaning to those words that are in the charter. What they said is there is no set list of the principle of the fundamental justice. They aroused from the common law. So they will develop over time through the common law principles that are repeated in cases over and over and over again so they are found in a basic tenant of our common law system what are the rules principles of our common law system are going to get right in to the charter if and only if it is a legal principle that there is general consensus that the principle in question is necessary to the fair operation of our system it is not that biking come up out of common law system and I can make it a principle of fundamental justice. In order for an act to to become a principle of fundamental justice. The rule must be one that is necessary for our system of justice to function properly and you have to be able to articulate. Again not so thoughtful yet. The principle of fundamental justice arise form common law. so again they are not codified they are going to be somewhere out there in the common law system and its going to be a legal principle that is more required of the functioning of our legal system is easily identifiable. So what were the principles that we were going to identify in Heywood the S.C.C told us the three principles of the fundamental justice. The list of fundamental justice, which started with Heywood case, is not a close one you can add to it along with each other case. Principles of Fundamental justice: 1. Criminal law must not be overbroad (so if you can articulate criminal law overreaches the law, there is going to be some target some legitimate purpose for criminal law and if they use a circuit against a tinny little target the probably going to be over broad. So if they pass the net too broadly and it touches too many people or too much conduct it is going to be a violation of s.7. Because we know it infringes liberty and it is overbroad it is inconsistent with the rights of fundamental justice. Principle being that it cannot be overbroad. – Are means chosen necessary to achieve the State objective? This is the first fundamental that came out of Heywood if the legislation is too broad it is going to be invalid under section 7 of the charter. 2. Notice must be given of criminal offences: so it cannot be that all the sudden some behaviour that was legal yesterday becomes illegal tomorrow and you do not know about it. So there has to be a general notice requirement but in respect of Heywood no one told him when he was convicted with sexual offence of the child that oh by the way you are not allowed for you to be in a park. You have to give notice is another principle of criminal justice. And the 3 one is that criminal law not be vague now hold on because what you might think is vague is not what the lawyers think is vague and is certainly not what judges think vague In order to be unconstitutionally vague it has to be and this is the language incapable of meaningful interpretation by the court so if a court is capable of interpreting it it is not unconstitutionally vague. 3. Vagueness is an enormously high standard. What they said in Heywood in sort of to follow up on this that this sort of legislation is overbroad in a number of respects. It is overbroad in terms of the placing is that is applied maybe school ground make sense because that is where kids are going to be maybe playground make sense because that is where kids are going to be but parks are not necessarily going to have kids and bathing area is not going to have kids necessarily so the first question get a mark so it talks about vague because in terms of the people it captures. And they also said that it is vague in terms of lack of time. There is a lifetime ban. So when this happen it goes back to parliament and then the parliament it narrows down to a constitutional acceptable ground. The case of Malmo- Levin came years after Heywood and they mad different argument. R. v. Clay; R. v. Malmo-Levine where the supreme court of Canada made the possession of marijuana not behind reverse onus. This is recreational possession of marijuana small amount of marijuana and they argued that the possession of Marijuana criminalize possession of marijuana for personal uses concrete section 7 of the charter. Again remember that section 7 of the chart means life liberty and security of the person and the right not to be deprived from it through except the court decide through criminal justice. So criminal law in this section always infringes your right to liberty as always carries the principle of punishment and punish again but the issue is always in respect of criminal law have they done that in a way that they keep up with the principle of fundamental justice. So clay and Malmo Levine had two very good lawyers who said lets try and come out with some thing new with principles of fundamental justice. Because we are not going to say it is overly broad we can not say it is vague doe not really matter if they notice things so we got to come up with new principle of fundamental justice and see whether or not we can make that stip. So in claim malmo levin there are now two new principle of fundamental justiceSo the first one is that criminal law can not be arbitrary. And by arbitrary what they suggested was there is more rational reason for some thing to be a crime it is making no reason for some thing to be a crime. The second principle of criminal justice that order for some thing to be a crime it has to be in a protecting harm to other people. So they said criminal law should not be about people protecting themselves from them selves. If people want to do things to harm themselves they should be free to do it and it should not be a crime. Now that is quite interesting because possession and consumption of drugs are in fact one of the few crimes that are about harms to oneself like I mean very few crimes are about harming yourself like it is not a crime to kill your self it is a crime to help someone else to kill them selves. It is not a crime to inflict injuries on your self it is very few crimes that are aimed at people protecting them against harming themselves. Lots of things that we do to harm ourselves a. they are not crimes b. are not regulated or c. are regulated some other way. If you think about other drugs like cigarettes, alcohol getting tattoo getting piercing and so on that people that that I might do that to harm myself that are not crime some are regulated some are not. They made this argument that criminal law should be designed for to protect other people form harming. S.C.C said that your are right that criminal law cannot be arbitrary this is a principle of fundamental justice. They did not accept the harms to people as a principle of criminal justice. And they said that in fact there is no consensus that it is necessary for good functioning of our society and it has to be easy to articulate. The court say you met 1 in 3 it is easy to articulate it is a legal principle but there is no consensus that the idea the provision of harm is necessary to the fair functioning of our political system. So they said it is not a principle of fundamental justice. The bottom line in malmo levin is they say yes it infringes liberty because that is every crime does but it does not do it in a way that violates the principles of the fundamental justice therefore possession laws are valid they are consistent with the charter. That is why it is still a crime despite a lot of people think possessing small amounts of marijuana. So section 15 says that every one is equal for the criminal law and has a right to equal protective and equal benefit of the law without discrimination based on race, national or ethnic origin color difference or sex age physical and mental disability. This is our equality right. And equality right apply equally to crime. Parliament cannot enact legislation that criminalizes conduct in a discriminatory manner. Analgesic ground these are not enumerated grounds the enumerated grounds are the one are listed in section 15 for example color religion origin sex and so on are the enumerated grounds but if you can come up with an analogies ground they are can discriminate based on that as well. Analogies grounds are things that are equally innate as these sorts of territories things you cannot change about your self. Height probably is an analogous ground because there is nothing I can do to stop it. It may or may not be any more than I am it is kind of consensus. Height maybe a legitimate base for discrimination like when you go to Canada’s wonderland and you do not have the right length for certain attractions where they discriminate on basis of height but are legitimate. So if there is a legitimate reason safety reason they probably allow doing it. So legislation and crime cannot violate our equality right. Charter right are not absolute they are not absolute for couple of reasons. Limit Charter rights are not absolute Section 33(1) – Parliament can enact legislation if they expressly in doing so knowing that it violates your charter rights. an Act of Parliament...that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15 of this Charter. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force… Section 1 of the charter is a build in safety vow that allows the government to enact legislations that they know violates one of your charter rights. S.1 says The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. That actually says that government are allowed to enact laws some thing that is prescribed by law that violates the charter if they can show that there demonstrably justifiable in a free and democratic society. And this is because our charter is based on the concept of the social contract each of us have to give up some amounts of our freedoms in order to us all to maximize our own rights so if it is demonstrably justifiable in a free and democratic society they can enact laws that violate the charter. Section 33 of the Charter is even more exclusive it says – Parliament...may expressly declare in an Act of Parliament...that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15 of this Charter. Section 2 is the fundamental freedom and section 7 to 15 are the procedural rights so parliament can actually enact piece of legislation and at th
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