The Criminal Law and the Constitution

• Author: Kent Roach
• Pages: 25-96

25

CHAPTER 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 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

CR IMI NAL LAW26

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.

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 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.