C. Sources of Criminal Law

AuthorKent Roach
ProfessionFaculty of Law and Centre of Criminology. University of Toronto

Page 5

There are three main sources of criminal law in Canada: 1) the Constitution, including both the division of powers and the Canadian Charter of Rights and Freedoms; 2) statutes enacted by legislatures, including the Criminal Code and other statutes creating offences; and 3) judge-made common law in the form of defences that have not been codified in the Criminal Code and common law presumptions of fault.

Not all sources of the criminal law are equal. The Constitution is the supreme law and prevails over both statutes and common law. Thus a criminal offence that is enacted by Parliament can be struck down by the courts on the grounds that it violates the Constitution. Statutes prevail over judge-made common law. Thus, Parliament could abolish a common law defence to a crime through clear legislation and they can also displace judge-made common law presumptions of fault. At the same time, however, the result must accord with the Constitution and statutory abolition of some defences or abolition of fault requirements might be held to be unconstitutional because it would result in convictions that violate the Charter. Thus the courts play the prime role both in interpreting the...

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