WDW225 Lecture 2

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Department
Woodsworth College Courses
Course
WDW101Y1
Professor
Jim Davies
Semester
Fall

Description
WDW225 Lecture 2 09/27/2012 Limits on Criminal Law (Part II) C.C.R.F Recap From Last Week Big Ideas 1. Only the Federal Government can enact criminal legislature s.91(27) a. The division of powers 2. Criminal Law in Canada is codified no common law offences s.9(a) a. Cannot be free flowed according to the judges 3. Three types of offences in Canada o Summary, indictable and hybrid o Indictable offences can be tried with judge or juries o Hybrid offences may have a higher punishment 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) Also has to comply with the C.C.R.F 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 NOT ALL CHARTER VIOLATIONS MAKE A LAW UNCONSTITUTIONAL ISSUE: is the violation unjustified or justified? - Does it comply with the charter and is it 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 - 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 - Only to the extent of the problem that will be struck down, not the whole piece of the legislature o No longer a valid law, no longer have force in effect (even though it is still in the book) Canadian Charter of Rights and Freedoms - Part I of the Constitution Act, 1982 - Forms part of the Constitution, free standing document - Procedural rights versus substantive rights - 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 criminal procedure - Some rights limit substantive criminal law (ie what can be a criminalized) Charter Rights 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. - 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. 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; *Parliament cannot limit and criminalize these fundamental freedoms - 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. o Enumerated grounds, traits and characteristics that one cannot change o Analogous grounds, ones that courts will recognize as similar to enumerated grounds, and decided that they are also subjected to charter protections *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 therefor except in accordance with the principles of fundamental justice Guarantees 3 rights: 1. Life 2. Liberty; and o Imprisonment, bail with conditions, those that limit who, where and what you can do (do as you chose without restriction) 3. Security of the person o *Protects both procedural and substantive rights Charter Rights Law will violate s. 7 only if it (2 step process) (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 - R. v. Heywood - Challenged legislation as inconsistent with s. 7 of the Charter on two grounds: 1) Offence limits where people can go = restriction on liberty 2) Carries the potential for imprisonment = potential restriction on liberty interest Every crime carries the potential for imprisonment
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