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, wh ich is the
supreme law of t he land, h as 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 t he federal Parliament
to enact laws concerning criminal law and procedure. The provinces
can, however, enact regulatory offences to help them govern matters
within t heir jurisdiction, such as liquor licensing. The federal govern-
ment can also enact regulator y offences to help it govern matters such
as nav igation and shipping th at are within federal jur isdiction. In de-
ciding whether an offence is w ithin federal or provincial jurisdict ion,
the courts are concerned with the law’s primar y purpose.
In 1982 the Canadian Charter of Rights and Freedoms was added to
the Con stitution, a nd it places new restraints on the state’s abilit y to
enact and apply criminal laws. It does so by recognizing various rights,
such as the right to be free of unre asonable searches and seiz ures, the
right to counsel, and the right to a fair t rial. In most c ases, people wil l
only h ave t he 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 right s in the Charter req uire 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, a nd
does not punish a person who is morally innocent, responds to threats
in a morally involuntary manner th at a reasonable person could not
CRIMIN AL 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 v iolating an individual’s right, even if it wa s enacted for a
valid and legitimate pur pose.
If a criminal or regulatory offence or procedural provision violates
a right protected under the Charter, the government w ill have an op-
portunity to justify the law under section 1 of the Charte r as a rea-
sonable limit that i s demonstrably justifiable in a free and democratic
society. The govern ment 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 fulfill that purpose except by v iolating the ac-
cused’s rights and the good that the law achieves in advancing its ob-
jective outweighs the ha rm 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 dow n an unconstitutional offence, term inate a prosecution
through a stay of proceedings, or exclude relevant evidence because it
was obtai ned through a Charter violation such as an unconstitutional
search or interrogation.
The new emphasis on the accused’s rights in Canadian crimi nal law
has diverted some tr ials away from t heir trad itional focus on whether
the accused was factually guilty. The Charter protects the r ights of the
accused to due proce ss 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 crimina l law, including victims, witne sses, or t he media,
may also have Charter rights such as the rights to privacy and the equal
protection and benefit of the law. The Ch arter does not eliminate t he
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 cr iminal law and procedure. Most
crimina l 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 Constitution 25
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 cr iminal law and procedure.
For example, a federal law prohibiting the sale of margarine or estab -
lishing t he alcohol content of light beer would not be a valid crim inal
la w.4 Courts have, however, been quite generous in allowing the fed-
eral government to enact laws th at facilitate the administration of the
crimina l law. For example, federal laws regulating the detention of the
crimina lly insane or those found unfit to stand trial because of a mental
disorder5 and enabling judges to order t he accused to make re stitution
to the victims of cri me6 have been upheld as valid crimin al law. Parlia-
ment’s crimin al law power has also been interpreted broadly to allow
laws restrict ing the advertising of tobacco,7 prohibiting pollution,8 and
prohibiting the possession of marijuana.9 When the federal government
relies on its cr iminal law power, it must emphasize t he use of prohibi-
tions and punishments, as opposed to other forms of regulation such as
licensing and insp ections.
Unlike in the United St ates and Austral ia, the provinces (or states)
cannot make laws that are clas sified by the courts as having the dom-
inant pur pose of prohibiting acts by the crimina l 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 infringi ng the federal government’s exclusive jurisdiction over crim-
inal l aw. A provincial offence or a municipal by-law will be unconsti-
tutional if its prime purpos e is to punish behaviour as crim inal. 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 primary pur pose of responding to t he 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.
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.
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].
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