The Criminal Law and the Constitution

• Author: Kent Roach
• Pages: 25-91

25

CHA PTER 2

THE CRIMINAL LAW

AND THE

CONSTITUTION

In order to understand criminal 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 juri sdiction. In de-

ciding whether an offence is within federal or provincial juris diction,

the courts are concerned w ith the law’s primar y 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 sei zures, the

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

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

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

inal case s. Many of the rights in the Charter requ ire procedural fairness

or due process in the investigation and prosecution of crime. Other

rights are concerned th at the substance of the law is fair a nd does not

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

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

CR IMIN AL LAW26

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 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 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 fulf‌ill 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 v iolation 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 prosec ution

through a stay of proceedings, or exclude relevant evidence because 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 C anadian crimina l law

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 a s 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 right s to privacy and the

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

the need to balance competing intere sts in crimin al laws and prosecu-

tions, but it provides a new framework for reconciling these interest s.

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 crimin al law and procedure. Most

crimina l law is contained in the Criminal Code1 alt hough the Control led

1 RSC 1985, c C-46 [Code].

The Crimin al Law and the Constitution 27

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 criminal law and procedure. For

example, a federal law prohibiting the sale of ma rgarine or establish-

ing the alcohol content of light beer would not be a valid criminal l aw.4

Courts have, however, been quite generous in allowing the federal gov-

ernment to enact laws th at facilitate the admi nistration of the criminal

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

insane or those found unf‌it to stand t rial because of a menta l disorder5

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

victims of cri me6 have been upheld as valid criminal law. Parliament’s

crimina l law power has also been inter preted broadly to allow laws re-

stricting the advert ising of tobacco,7 prohibiti ng pollution,8 prohi biting

the possession of marijuana,9 requiring all g uns to be registered,10 and

regulating as sisted suicide.11 When the federal government relies on

its crimin al law power, it must emphasize the use of prohibitions and

punishments, as opposed to other form s of regulation such as licensing

and inspections. At the same time, something that is not necessarily

immoral can stil l be prohibited by the criminal law.

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,12 the use

of streets for prostitution,13 or abortion s,14 have all been struck down

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

inal law. A provincial offence or a municipal bylaw wi ll be unconstitu-

tional if its prime pur pose is to punish behav iour as crimina l. Before

2 SC 1996, c 19.

3 SC 2002, c 1.

4 Canadian Fede ration of Agriculture v Quebec (AG), [1951] AC 179 (PC); Labatt

Breweries of Canad a Ltd v Canada (AG), [1980] 1 SCR 914.

5 R v Swain (1991) 63 CCC (3d) 481 (SCC); R v Demers [2004] 2 SCR 489.

6 R v Zelensky (1978), 41 CCC (2d) 97 (SCC).

7 RJR-MacDonald Inc v Ca nada (AG) (1995), 100 CCC (3d) 449 (SCC). The adver-

tising re strictions were, however, struck dow n under the Charter as an unjust i-

f‌ied restrict ion on freedom of expression.

8 R v Hydro–Que bec (1997), 118 CCC (3d) 97 (SCC).

9 R v Malmo-Le vine (2003), 179 CCC (3d) 417 (SCC) [Malmo-Levine].

10 Reference re Firearm s Act (Can), [2000] 1 SCR 783 [Firearms Refe rence].

11 Carter v Cana da (Attorney General), 2015 SCC 5 [Carter].

12 Switzman v Elbling (1957), 117 CCC 129 (SCC).

13 R v Westendor p (1983), 2 CCC (3d) 330 (SCC).

14 R v Morgentaler (1993), 85 CCC (3d) 118 (SCC).