The Criminal Law and the Constitution

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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In order to understand criminal law in Canada, it is increasingly necessary to understand constitutional law. The Constitution, which is the supreme law of the land, has always played a role in the criminal law. The constitutional division of powers between the federal and provincial governments, created in 1867, allows only the federal Parliament to enact laws concerning criminal law and procedure. The provinces can, however, enact regulatory offences to help them govern matters within their jurisdiction, such as liquor licensing. The federal government can also enact regulatory offences to help it govern matters such as navigation and shipping that are within federal jurisdiction. In deciding whether an offence is within federal or provincial jurisdiction, the courts are concerned with the law’s primary purpose.

In 1982 the Canadian Charter of Rights and Freedoms was added to the Constitution, and it places new restraints on the state’s ability to enact and apply criminal laws. It does so by recognizing various rights, such as the right to be free of unreasonable searches and seizures, the right to counsel, and the right to a fair trial. In most cases, people will only have the incentive to invoke their Charter rights when they are charged with an offence. Hence, most Charter litigation arises in criminal cases. Many of the rights in the Charter require procedural fairness or due process in the investigation and prosecution of crime. Other rights are concerned that the substance of the law is fair, and does not punish a person who is morally innocent, responds to threats in a morally involuntary manner that a reasonable person could not resist, or

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is only exercising constitutional rights such as freedom of expression. A law or practice can infringe a Charter right because it has the effect of violating an individual’s right, even if it was enacted for a valid and legitimate purpose.

If a criminal or regulatory offence or procedural provision violates a right protected under the Charter, the government will have an opportunity to justify the law under section 1 of the Charter as a reasonable limit that is...

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