Criminal offences must be consistent with the supreme law of the Constitution. In Canada, this means that only the federal Parliament can enact criminal laws. The provinces (and their delegates, the municipalities) can, however, enact regulatory offences and such offences can even be punished by imprisonment. In addition, a criminal law may be
unconstitutional if it infringes a right or a freedom protected under the Canadian Charter of Rights and Freedoms, and if it cannot be justified under section 1 as a reasonable and demonstrably justified limit on a right.
Sections 7 and 11(d) of the Charter are particularly important to the criminal law. Section 7 provides that people cannot be deprived of life, liberty, and security of the person except in accordance with the principles of fundamental justice. Imprisonment most definitely affects the liberty or security of the person. Thus, it is necessary that the criminal law be in accord with the principles of fundamental justice. These principles have been defined as the fundamental tenets of the...