Lecture 3

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University of Toronto St. George
Woodsworth College Courses
Scot Wortley

Criminal Law Lecture 2 Date: September 27, 2012 Charter limit 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 NOT ALL CHARTER VIOLATIONS MAKE A LAW UNCONSTITUTIONAL - ISSUE: is the violation “unjustified” or “justified”? Starting Point Section 52(1) of the Constitution: - The Constitution 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 - If law is inconsistent “of no force and effect”  a court will declare that a law will no longer be enforced (however this doesn’t mean that the law will be taken out of the Criminal Court) - Already talked about how a law can be inconsistent with ss. 91/92 (division of power)  - Now going to look at how it can be inconsistent with the Charter Canadian Charter of Rights and Freedoms - Part I of the Constitution Act, 1982 - Forms part of the Constitution - s. 52(1) applies to Charter violations - Any law that is inconsistent with the Charter is “of no force and effect” to the extent of the inconsistency - Some rights limit substantive criminal law (ie what can be a criminalized) PROCEDURAL RIGHTS – ss. 8 to 14 - Section 8 – Everyone has the right to be secure against unreasonable search or seizure - 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  protects a persons right to hire/speak to a lawyer right after detainment - Section 11(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 (public’s right to have access to trials) by an independent and impartial tribunal. SUBSTANTIVE RIGHTS - Section 2 –Everyone 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; 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, color, religion, sex, age or mental or physical disability (if there is something that you cant change/gives rise to some disadvantage, it gives rise to you being protected over Section 15(1) Enumerated are listed (sex, age, mental disability, race, etc…) Analogous are ones that courts recognize that are similar, and will also be recognized under Charter protection ^Protects both procedural and substantive rights^ Section 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  They CAN make laws that breach your right of life, liberty, and security… but ONLY if they are consistent with PFJ - Guarantees 3 rights: (1) Life; (2) Liberty  restrictions: (jail, bail with conditions of house arrest) (3) Security of the person  (your right to make choices by your own personal integrity: medical decisions aka if you want a surgery, if you want to take pills, etc…) - First thing to notice is that it gives you 3 different rights ^Protects both procedural and substantive rights^ Violations - Law will violate s. 7 only if it (a) Infringes one of 3 rights AND (b) Is inconsistent with the “principles of fundamental justice”  - Any criminal offence carries the potential of incarceration or some other punishment that will constitute a deprivation of liberty. - All criminal offences must, therefore, conform to the “principles of fundamental justice” or they will violate s. 7 Principles of Fundamental Justice R. v. Heywood (1994, SCC) FACTS: - Heywood was convicted of a sexual assault involving children - As part of his penalty for that offence, he was subject to s. 179(b) of the Criminal Code: Everyone who has been convicted of a sexual offence commits an offence (vagrancy) who “is found loitering in or near a school ground, playground, public park or bathing area” - On two occasions, he was stopped by the police in a park - First time he was cautioned; second time arrested - Challenged legislation as inconsistent with s. 7 of the Charter on two grounds: o (1) Offence limits where people can go = restriction on liberty o (2) carries the potential for imprisonment = potential restriction on liberty interest  He said that what he was charged for was unconstitutional Every crime infringes on a person’s liberty  every crime HAS TO BE WRITTEN IN A WAY THAT COMPLY WITH PFJ - QUESTION – does it restrict the accused’s liberty in a manner that is inconsistent with the principles of fundamental justice? R. v. Heywood – SCC decision - No defined set of “principles of fundamental justice”  always develops over time - Found in the “basic tenants of our legal system” – found in the common law - BUT not all common law rules are principles of fundamental justice - MUST BE: o a. Legal principles o b. Fundamental to fair operation of our legal system  most important  some common view that the PFJ are fair to the individual o c. Identified with precision - SCC identified 3 principles of fundamental justice: o Criminal law must not be overbroad – are the means chosen are “grossly disproportionate” to the objective?  It has to be defined in a narrow way to actually address whatever the valid criminal law purpose is (have they defined s. 179(b), or is it overly broad?)  If you are convicted of a sexual offence, they are under these restrictions for the rest of their life (cant ever enter a public park again) o Notice must be given of criminal offence  You get convicted, sent to jail, and when you get out, no one informed you that you were not allowed to go into a park (you’d just have to ‘know’ you’re not allowed… ridiculous!)  Again, Heywood argued that this takes away from s. 7 and isn’t fair  takes away from ones rights o Criminal law must not be vague – are the provisions incapable of meaningful interpretation by the Court?  Argued, but didn’t win this part  Vague means only if a judge cannot understand what is written AT ALL… if they can barely summarize a law, it is fine and isn’t vague These three were accepted as PFJ, they apply to any case R. v. Clay; R. v. Malmo-Levine (2003, SCC) FACTS: - Malmo-Levine operated a “harm reduction club” (tried to get people to stop smoking pot) that was raided by police; seized 316 gm of marijuana  Acted on himself, he represented himself in front of the SCC - Clay ran “The Great Hemp Emporium”; arrested after he sold a small seedling to an undercover officer  Clay did everything he could to get arrest JUST so he could challenge the courts, then one dumb cop arrests him and he gets his chance ISSUE: does criminalizing possession of marijuana for personal use violates s. 7? risk of imprisonment = infringement of liberty interests BUT... like every other case… does it do so in a way that is inconsistent with the principles of fundamental justice? Proposed 2 principles of fundamental justice: (a) criminal law cannot be arbitrary  there is no connection between whatever is criminalized and one of the valid criminal law purposes (b) criminal law must be aimed at protecting against harm to others – protecting against self-harm is not a valid criminal law purpose SCC agreed with (a) but rejected (b) “Harm principle”  Why did they reject it? - No consensus in respect of the harm principle - No consensus that only “harm to others” is a basis for criminal law o Harm is a totally subjective view, cant really determine what it is, because it is viewed different by others - Harm to self is a legitimate basis; so is moral harm Arbitrariness - Criminal law cannot be arbitrary - Law will be arbitrary if it bears no relation to, or is inconsistent with, its objective - Possession offence is not arbitrary - Sufficient state interest in preventing harm to justify criminalization Both cases related to how to analyze and interpret section 7 into Criminal Law Charter rights are not absolute - Section 33(1) – 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 o They are allowed to enact laws that hurt your rights, so long as they say ‘we know this violates the
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