The Criminal Law and the Constitution

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology University of Toronto
• Pages: 21-71

In order to understand criminal law in Canada, it is increasingly nec-

essary 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 provin-

cial 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 govern-

ment 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, the majority of Charter litigation aris-

es in criminal cases. Many of the rights in the Charter require procedur-

al 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 or only exercising

constitutional rights such as freedom of expression. A law or practice

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the Criminal Law

and the

Constitution

chapter 1

can infringe a Charter right because it has the effect of violating an indi-

vidual’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 rea-

sonable limit that is demonstrably justifiable in a free and democratic

society. The government must demonstrate not only that the law has

been enacted for an important purpose, but that there is no other rea-

sonable manner to fulfil that purpose except by violating the accused’s

rights and the good that the law achieves in advancing its objective

outweighs the harm to the Charter right. If the accused’s rights have

been violated and the violation not justified under section 1, the courts

can order a range of constitutional remedies. For example, they can

strike down an unconstitutional offence, terminate a prosecution

through a stay of proceedings, or exclude relevant evidence because it

was obtained through a Charter violation such as an unconstitutional

search or interrogation.

The new emphasis on the accused’s rights in Canadian criminal law

has diverted some trials away from their traditional focus on whether

the accused was factually guilty. The Charter protects the rights of the

accused to due process or fair treatment, but section 1 allows the gov-

ernment to justify some restrictions on the accused’s rights as necessary

for crime control or some other important objective. Other people

affected by a criminal law, including victims, witnesses, or the media,

may also have Charter rights such as the rights to privacy and the equal

protection and benefit of the law. The Charter does not eliminate the

need to balance competing interests in criminal laws and prosecutions,

but it provides a new framework for reconciling these interests.

A. Criminal Justice And The Division

Of Powers

1) Federal Jurisdiction over Criminal Law

Under section 91(27) of the Constitution Act, 1867, only the federal

Parliament can enact laws concerning criminal law and procedure.

Most criminal law is contained in the Criminal Code of Canada1although

the Controlled Drugs and Substances Act2and the Youth Criminal Justice

22 Criminal Law

1 R.S.C. 1985, c. C-46 [Code].

2 S.C. 1996, c. 19.

Act3are often considered criminal law. Not all laws enacted by the fed-

eral government fall under its power to enact criminal law and proce-

dure. For example, a federal law prohibiting the sale of margarine or

establishing the alcohol content of light beer would not be a valid crim-

inal law.4Courts have, however, been quite generous in allowing the

federal government to enact laws that facilitate the administration of

the criminal law. For example, federal laws regulating the detention of

the criminally insane5and enabling judges to order the accused to make

restitution to the victims of crime6have been upheld as valid criminal

law. Parliament’s criminal law power has also been interpreted broadly

to allow laws restricting the advertising of tobacco,7prohibiting pollu-

tion,8and prohibiting the possession of marijuana.9When the federal

government relies on its criminal law power, it must emphasize the use

of prohibitions and punishments, as opposed to other forms of regula-

tion such as licensing and inspections.

Unlike in the United States and Australia, the provinces (or states)

cannot make laws that are classified by the courts as having the domi-

nant purpose of prohibiting acts by the criminal sanction. Provincial

and municipal attempts to prohibit the propagation of ideas,10 the use

of streets for prostitution,11 or abortions,12 have all been struck down as

infringing the federal government’s exclusive jurisdiction over criminal

law. A provincial offence or a municipal by-law will be unconstitution-

al if its prime purpose is to punish behaviour as criminal. Before the

enactment of the Charter, these restrictions acted as an indirect but

important protection of civil liberties.

2) Provincial Jurisdiction to Enact Regulatory Offences

Under section 92(15) of the Constitution Act, 1867, the provinces (and

their delegates, the municipalities) can create offences punishable by

The Criminal Law and the Constitution 23

3 S.C. 2002, c. 1.

4Canadian Federation of Agriculture v. Quebec (A.G.), [1951] A.C. 179 (P.C.);

Labatt Breweries of Canada Ltd. v. Canada (A.G.), [1980] 1 S.C.R. 914.

5R. v. Swain (1991), 63 C.C.C. (3d) 481 (S.C.C.).

6R. v. Zelensky (1978), 41 C.C.C. (2d) 97 (S.C.C.).

7RJR-Mcdonald Inc. v. Canada (A.G.) (1995), 100 C.C.C (3d) 449 (S.C.C.). The

advertising restrictions were, however, struck down under the Charter as an

unjustified restriction on freedom of expression.

8R. v. Hydro–Quebec (1997), 118 C.C.C. (3d) 97 (S.C.C.).

9R. v. Malmo-Levine (2003), 179 C.C.C. (3d) 417 (S.C.C.) [Malmo-Levine].

10 Switzman v. Elbling (1957), 117 C.C.C. 129 (S.C.C.).

11 R. v. Westendorp (1983), 2 C.C.C. (3d) 330 (S.C.C.).

12 R. v. Morgentaler (1993), 85 C.C.C. (3d) 118 (S.C.C.) [Morgentaler].