5 Pages
Unlock Document

University of Toronto St. George
Woodsworth College Courses
Dena Demos

- Only federal gov’t can enact criminal legislation s. 91 (27) - Criminal law in Canada is codified –no “common law offences” s. 9 (a), o note the same does NOT apply to defences s.8(3) o judges CAN create new defences if they agree with you o Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defense to a charge continues in force and applies in respect of proceedings for an offence under this Act - Three types of offences in Canada; summary, indictable, hybrid - Not all penal legislation enacted by the Federal government is valid (Margarine reference), in order to be valid it has to be in a valid form, needs to be codified, what act is prohibited, corresponding penalty, has to be for proper criminal purpose o Crime = prohibited act + penalty + proper criminal law purpose (peace, order, security, healthy, morality) o Question: does “crime” have to prevent some identifiable harm to be valid criminal law?  Prevention of harm not broad category for valid criminal purpose LIMITS ON CRIMINAL POWER (PART II) CANADIAN CHARTER OF RIGHTS AND FREEDOMS CHARTER LIMITS ON CRIMINAL LAW -rule: parlimaliment is not entitled to enact acriminal law that constitutes and unjustified violation of one of the rights guaranteed in the charter, Note : not all violations render law unconstitutional - Question: is the vilation s “justified” STARTING POINT 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 coNSITUTITON IS, TO EXTENT OF INCONSISTENCY OF NO FORCE AND EFFECT, - Parliament not allowed to enact laws not in accordance with constitution, but assuming that they do enact laws like that, they don’t strike down the entire criminal code, but only that portion of the law that is inconsistence with the constitution, - If law is inconsistent with the constitution, “of no force and effect” o Already talked about how can be inconsistent with s. 91/92(division of power), those pieces are inconsistent with constitution and can be strike down - Canadian Charter of Rights and Freedoms o Part 1 of the Constitution Act 1982 o Forms part of the Constitution o S. 51(1) applies to the charter o Any law that is inconsistent with a provision of the Chrater is “of no force and effect” to the extent of the inconsistency o Some rights limit criminal procedures; others limit substantive criminal law (how police investigate crime) o Places limits and restraints on federal gov’t ability to define crime o limits how the law operates o Places limits and controls on police interaction and arrest and investigation (arresting, etc.) o Procedural rights ss 8-13  Section 8—everyone has the right to be secure against unreasonable search or seizure (only entitled to be free from those that are defined as UNREASONABLE, that’s how section 8 will limit the power of the police, only have the power to conduct REASONABLE searches)  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 (doesn’t apply to everybody, only applies when you are arrested or detained, gives you a number of rights when you are arrested/detained retain and instruct counsel) o Substantive rights  Section 2—fundamental freedoms—everyone has the following fundamental freedoms a) Freedom of conscience and religion; b) Freedom of thought, belief, opinion, expression, including freedom of the press and other media communication; 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 3) security of person ; physical and psychological integrity, the state not entitled to do something that causes you serious physical/psychology harm 1 - internal limit—only a problem if inconsistent with the “principles of fundamental justice”, gov’t has the right to infringe on those rights only in accordance with the “principles of fundamental justice”…there is no list on principles of fundamental justice (all in case law, judges are asked to decide time to time rather something is a principles of fundamental justice, judge-made law decides what fundamental justice are” o every criminal offence carries potential, or risk of imprisonment, therefore every single crime is an infringement because of that potential/risk of your right to liberty, the mere act of creating a crime by doing that the gov’t has infringed you’re right to liberty because it carries the risk of imprisonment, doesn’t matter if a particular person gets imprisonment after trial, whats important is the RISK, every crime is an infringement oneverybody’s rights interest, in accordance w/ section 7, every crime must be defined in a way that is consistent with the fundmental justice, if it’s a crime, you are already infringed on section 7, but doesn’t mean its unconstitutional, “yes this crime is created in accordance with fundamental justice” then it is VALID criminal law, if it isn’t created consistent with fundamental justice than it ISN”T valid criminal law *section 2 most often used to try to strike down criminal law - look at how freedoms affect the boundaries of criminal law, suggest that federal government not entitled to create crimes that infringes upon rights and freedoms WHAT ARE THE “PRINCIPLES OF FUNDAMENTAL JUSTICE” R. v. Heywood (1994, SCC) - FACTS: Heywood was convicted of sexual assault involving children - as part of his penalty for that offence, he was subject to s. 179(b) of the criminal code: o Everyone who has been convicted of a sexual offence commits an offence (vagrancy) who “is found loitering in or near a school ground, background, public park or bathing area” - Anyone charged with sexual assault, it becomes crime for someone doing the above - Challenged legialations as inconsistent with s.7 of the charter - Offence limits where people can go = restriction on liberty - Also, carries the potential for imprisonment so restricts the accused’s liberty interest - Doubles the infringement of liberty - Question:does the restrict the accued’s lierty in a manner that is inconsistent with the principles of fundamental justice o No defined set of “principles of fundamental justice” o Found in the “Basic tenants of the our legal system” –found in common law o Not all common law rules are principels of fundamental justice o Must be:  Legal principles  Consensus that principle is fundamental to fair operation of our legal system crucial to operation of our legal system  Identified with precision, need to be broad, generally applicable principle that can be applied case to case - SCC identified 3 principles of fundamental justice that applied to every law: 1) Criminal law must not be overbroad—are means chosen necessary to achieve the State objective? (State have particular problem in mind they want to target with criminal law, they have to be specific, if the crime is overly broad with what government is trying to achieve, it will be overbroad. If net of crime is cast to broadly, and will caputure more than ppl than that of concern it will not be part of fundamental justice). Only unconstitutionalif means chosen are “grossly disproportionate” to the objective (problem under section 7) 2) Notice must be given of criminal offences 3) Criminal law must not be vague—incapable of meaning interpretation by the Court; has to be unclear that essentially no meaning can be given to it, if any judge feel that they can interpret what the law means it isn’t vague - Problem w/ section 179, operates completely independent on any notice being given to person who has been convicted of the offence and subject to the law…no notice given to someone that it has triggered special liability on their part it isn’t consistent w/ principles of fundamental justice - As a result, the crown attorney was able to create an order to prevent this sort of people to go to these places, at least complies with this principle of funamdental justice - Bottomline in Heywood, the legislation was overbroad on too many level, applied to too many people, too many places, for too long,…AND no notice R. v. Clay; R. v. Malmo-Levine (2003, SCC) - argued that criminalizing possession of marijuana for personal use violates s. 7 - Again—carries risk of imprisonment so it infringes the accused person’s liberty interests BUT…does it do so in a manner that is inconsistent with the principles of fundamental justice - Argued that it is a principle of fundamental justice that a) Criminal law not be arbitrary; cannot be enacted for no good reason,
More Less

Related notes for WDW101Y1

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.