The Criminal Law and the Constitution

• Author: Kent Roach
• Pages: 24-80

24

CHA PTER 2

THE CRIMINAL LAW

AND THE

CONSTITUTION

In order to understand crimi nal law in Canada, it is increasingly neces-

sary to understa nd 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 t he federal and provin-

cial governments, created in 1867, allows only the federal Parliament

to enact laws concerning cr iminal 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 th at are within federal jurisdiction. In de-

ciding 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 restr aints on the state’s ability to

enact and apply crimina l laws. It does so by recognizing various rights,

such as the right to be free of unre asonable searches and seizures, the

right to counsel, and the right to a fa ir trial. In most ca ses, people will

only have the incentive to invoke their Charter r ights when they are

charged with an offence. Hence, most Charter litigation arises in cr im-

inal case s. Many of the rights in the Charter re quire procedural fai rness

or due process in the investigation and prosecution of cri me. Other

rights are concerned th at the substance of the law is fair, and does not

punish a person who is morally innocent, responds to threats in a mor-

ally involuntary man ner that a reasonable person could not resist, or

The Crimin al Law and the Constitution 25

is only exercising constitutional rights such as freedom of expression.

A law or practice can infr inge a Charter right because it has the effect

of violating an individua l’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 op-

portunity to justi fy the law under section 1 of the Charter as a rea-

sonable limit that is demonstr ably justif‌iable in a free and democratic

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

been enacted for an important pur pose, but also that there is no other

reasonable manner to ful f‌ill that purpose e xcept by violating the ac-

cused’s rights and the good th at the law achieves in advancing its ob-

jective outweighs the harm to t he Charter right. If the accused’s rights

have been violated and the violat ion is not justif‌ied under section 1, the

courts can order a range of constitutiona l remedies. For example, they

can strike down an unconstitutional offence, terminate a prosecution

through a stay of proceedings, or exclude relevant evidence becaus e it

was obtained through a Char ter violation such as an unconstitutiona l

search or interrogation.

The new emphasis on the accused’s rights in Ca nadian criminal l aw

has diverted some tr ials away from their trad itional focus on whether

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

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

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

sary for crime control or some other importa nt objective. Other people

affected by a criminal law, including victims, witne sses, or the media,

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

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

need to balance competing interest s in criminal laws and prosecutions,

but it provides a new framework for reconciling these interests.

A. CRIMINAL JUSTICE AND THE DIVISION

OF POW ER S

1) Federal Jurisdiction over Criminal Law

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

liament can enact laws concerning criminal law and procedure. Most

crimina l law is contained in the Criminal Code1 alt hough the Controlled

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

CR IMIN AL LAW26

Drugs and Substances Act2 and the Youth Criminal Justice Act3 are often

considered crimin al law. Not all laws enacted by the federal govern ment

fall under its power to enact cri minal law and procedure. For example,

a federal law prohibiting the sale of margarine or establishing the al-

cohol content of light beer would not be a valid criminal law.4 Courts

have, however, been quite generous in allowing the federal government

to enact laws that facil itate the administration of the criminal law. For

example, federal laws regulat ing the detention of the criminally insane

or those found unf‌it to stand trial because of a mental disorder5 and

enabling judges to order the accused to make restitution to the victims

of crime 6 have been upheld as valid crim inal law. Parliament’s crimin al

law power has also been interpreted broadly to allow laws restr icting

the advertising of tobacco,7 prohibiting pollut ion,8 and prohibiting the

possession of mar ijuana.9 When the federal government relies on its

crimina l law power, it must emphasize the use of prohibitions and pun-

ishments, as opposed to other form s of regulation such as licensing and

inspections.

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

cannot make laws that are classif‌ied by the court s as having the dom-

inant purpose of prohibiting act s by the crimina l sanction. Provincial

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

of street s for prostitut ion,11 or abortion s,12 have all been struck down

as infringing the federal government’s exclusive jurisdiction over cri m-

inal law. A provincial offence or a municipal by-law will b e unconsti-

tutional if its prime purpose is to punish behav iour as criminal. Before

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

important protection of civil liber ties.

Provincial or municipal laws have also been upheld if found to

have the primar y purpose of responding to the conditions that cause

2 S.C. 1996, c. 19.

3 S.C. 2002, c. 1.

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

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

5 R. v. Swain (1991), 63 C.C.C. (3d) 481 (S.C.C.); R. v. Demers, [2004] 2 S.C.R. 489.

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

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

advertisi ng restrictions were, however, str uck down under the Charter as a n

unjustif‌ied re striction on freedom of expre ssion.

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

9 R. 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].