The Criminal Law and the Constitution

AuthorKent Roach
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 a nd procedure. The provinces
can, however, enact regulatory oences to help them govern matters
within their jurisdiction, such as liquor licensing. The federal govern-
ment can also enact regulatory oences to help it govern matters such
as navigation and shipping th at are within federal jurisdiction. In decid-
ing whether an oence is within federal or provincial jurisd iction, 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 unre asonable searches and sei zures, the
right to counsel, and the right to a fair trial. In most c ases, people will
have the incentive to invoke their Charter r ights only when they are
charged with an oence. Hence, most Charter litigation arises in crim-
inal case s.
Many of the rights in the Charter require procedura l fairness or
due process in the investigation and prosecution of crime. Other rights
are concerned that the substa nce of the law is fair and does not puni sh
a person who is morally innocent, responds to threats in a morally
involuntary manner t hat a reasonable person could not resist, or is
only exercising constitutiona l rights, such as freedom of expression.
A law or practice can infr inge a Charter right because it has the eect
of violating an individual’s right, even if it was enacted for a valid and
legitimate purpose.
If a criminal or regulatory oence or procedural provision violates
a right protected under the Charter, the government will have an oppor-
tunity to justif y the law under section 1 of the Charte r as a reasonable
limit that is demonst rably justif‌iable in a free and democratic society. The
government must demonstrate not only that the law ha s been enacted
for an important purpose, but al so that there is no other reasonable way
to fulf‌ill that purpose except by violating t he accused’s rights and that
the good that the law achieves in advancing its objective outweighs the
harm to the Char ter right. If the accused’s rights have been violated
and the violation is not justif‌ied under sect ion 1, the courts can order a
range of constitutional remedies. For example, they c an strike down an
unconstitutional oence, terminate a prosecution through a stay of pro-
ceedings, or exclude relevant evidence because it was obtained through
a Charter violation such as an unconstitutional search or inter rogation.
The new emphasis on the accused’s rights in C anadian crimina l law
has diverted some tr ials 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 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
aected by a crimin al law, including victims, witnesses, 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.
1) Federal Jurisdiction over Criminal Law
Under section 91(27) of the Constitution Act, 1867, only the federal Par-
liament can enact law s concerning criminal law and procedure. Most
crimina l law is contained in the Criminal Code1 alt hough the Controlled
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 criminal law. Not all laws enacted by the federal govern-
ment fall under its power to enact crim inal law and procedure. For
example, a federal law prohibiting the sale of ma rgarine or establishing
the alcohol content of light beer would not be a valid criminal law.4
Courts have, however, been quite generous in allowing the federal gov-
ernment to enact laws th at facilitate the adm inistration of the criminal
law. For example, federal laws regulating the detention of those found
not criminally responsible or unf‌it to stand trial because of a mental
disorder5 and enabling judges to order the accused to make restitu-
tion to the victims of cr ime6 have been upheld as valid cri minal law.
Parliament’s criminal law power has also been i nterpreted broadly to
allow laws restrict ing the advertising of tobacco,7 prohibit ing pollu-
tion,8 prohibiting the pos session of marijuana,9 requir ing all guns to
be registered,10 prohibiting some practices in rel ation to assisted repro-
duction,11 regulat ing assisted dying,12 and prohibiting forced genetic
testing.13 When the federal government relies on its crimin al law power,
it must emphasize the use of prohibitions and puni shments, as opposed
to other forms of regulation such as licen sing and inspections. At the
same time, something that is not necessarily i mmoral can still be pro-
hibited by the criminal law.
Unlike in the United States and Australia, the province s (or states)
cannot make laws that are classif‌ied by t he courts as havi ng the dom-
inant purpose of prohibiting act s by the criminal sanction. Provinci al
and municipal attempts to prohibit the propagation of ideas,14 the use
2 SC 1996, c 19.
3 SC 2002, c 1.
4 Canadian Federation of Agric ulture 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] 1 SCR 933; R v Demers [2004] 2 SCR 489.
6 R v Zelensky, [1978] 2 SCR 940.
7 RJR-MacDonald Inc v Canada (AG), [1995] 3 SCR 199. The advertising re stric-
tions were, however, str uck down under the Charter as unjustif‌ied restrictions
on freedom of ex pression.
8 R v Hydro-Quebec, [1997] 3 SCR 213.
9 R v Malmo-Levine (2003), SCC 74 [Malmo-Levine].
10 Reference re Firearm s Act (Can), [2000] 1 SCR 783 [Firearms Re ference].
11 Reference ReA ssisted Human Reproduction A ct, [2010] 3 SCR 457.
12 Carter v Canad a (Attorney General), 2015 SCC 5 [Carter].
13 Refere nce re Genetic Non-Discriminatio n Act, 2020 SCC 17. Four judges, how-
ever, dissented a nd concluded that Parliament had not a rticulated a valid evi l
or threat dir ected to criminal l aw purposes or provided a suc ient evidentiary
foundation for the har m it was seeking to prevent.
14 Switzman v Elbling, [1957] SCR 285.

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