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Lecture 2

Woodsworth College Courses
Course Code
David Davies

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WDW225 September 30, 2010 Limits of Criminal Law Part2 Lecture 2
Review from Last Week
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
3.Three types of offences in Canada
-summary, indictable and hybrid
4. Not all penal legislation enacted by the federal government is valid (Margarine reference)
CRIME- prohibited act +penalty + proper criminal law purpose (peace, order, security, health, morality)
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?
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 Constitution is, to the extent of the inconsistency, of no force and effect
-if law is inconsistent with the constitution, of no force and effect
-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 law that is inconsistent with a provision of the Charter is of no force and effect to the extent of the
-some rights limit criminal procedure; others limit substantive criminal law
Procedural Rights ss. 8-13
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
Substantive Rights
Section 2- fundamental freedoms 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
c.Freedom of peaceful assembly
d.Freedom of association

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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
Guarantees 3 rights- life, liberty and security of the person
Internal limit- only a problem if inconsistent with the principles of fundamental justice
(e.g. right to liberty is taken away by fundamental justice, person going to jail)
-there is no list of fundamental justice, it is all case law; judges are asked to decide whether something is
a principle of fundamental justice or not; its based on the common law (judge-made law)
-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
What are 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
-challenged legislation is 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 accuseds liberty interest
QUESTION- does it restrict the accuseds liberty in a manner that is inconsistent with the principles of
fundamental justice?
-no defined set of principles of fundamental justice
-found in the basic tenants of our legal system found in the common law
-not all common law rules are principles of fundamental justice
a.Legal principles
b.Consensus that principle is fundamental to fair operation of our legal system
c. Identified with precision
What are Principles of Fundamental Justice?
R. v. Heywood
SCC identified 3 principles of fundamental justice:
1.Criminal law must not be overbroad are means chosen necessary to achieve the State objective?
Only unconstitutional if means chosen are grossly disproportionate to the objective
2.Notice must be given of criminal offences
3.Criminal law must not be vague incapable of meaningful interpretation by the court
(i.e. if any judge in the country cant interpret the law, it is vague)
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 persons 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 (enacted for no good reason)
b.Criminal law must be aimed at protecting against harm to others- protecting against self-harm (to
the extent there is any) is not a valid criminal law purpose
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