The Criminal Law and the Constitution

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 23-75

23

CHAPTER 2

THE CRIMINAL LAW

AND THE

CONSTITUTION

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

sary 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 de-

ciding whether an offence is within federal or provincial jurisdiction,

the courts are concerned with the law’s primar y 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 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

CRIMINAL LAW24

resist, or is only exercising constitutional rights such as freedom of

expression. A law or practice can infringe a Charter righ t beca use it h as

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 op-

portunity 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 also that there is no other

reasonable manner to fulf‌ill that purpose except by violating the ac-

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

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

have been violated and the violation is 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 neces-

sary 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 Charterdoes 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 Par-

liament can enact laws concerning criminal law and procedure. Most

criminal law is contained in the Criminal Code of Canada1 although the

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

The Crimin al Law and the Constitution25

Controlled Drugs and Substances Act2 and the Youth Criminal Justice Act3

are often considered criminal law. Not all laws enacted by the federal

government fall under its power to enact criminal law and procedure.

For example, a federal law prohibiting the sale of margarine or estab-

lishing the alcohol content of light beer would not be a valid criminal

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

eral government to enact laws that facilitate the administration of the

criminal law. For example, federal laws regulating 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 crime6 have been upheld as valid criminal law. Parlia-

ment’s criminal law power has also been interpreted broadly to allow

laws restricting the advertising of tobacco,7 prohibiting pollution,8 and

prohibiting the possession of marijuana.9 When the federal government

relies on its criminal law power, it must emphasize the use of prohibi-

tions and punishments, as opposed to other forms 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 courts as having the dom-

inant purpose of prohibiting acts by the criminal sanction. Provincial

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

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

as infringing the federal government’s exclusive jurisdiction over crim-

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

tutional 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.

Provincial or municipal laws have also been upheld if found to

have the primary purpose of responding to the conditions that cause

2 S.C. 1996, c. 19.

3 S.C. 2002, c. 1.

4 Canadian Federati on 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-Mcdonald 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–Quebec(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].

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

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

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