Sources of Criminal Law

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What is Criminal Law

Constitutionally, criminal law in its simplest form is a "prohibited" act with "penal consequences".[1] Jurisprudence mandated a further requirement that there be a criminal "public purpose"[2], which includes goals such as "public peace, order, security, health" and "morality".[3]

It is said to only apply to conduct that "is so inconsistent with the shared morality of society so as to warrant public condemnation and punishment".[4]

Acts that are considered "innocent or morally neutral" should not be included.[5]

There is no necessary requirement that criminal law be for the purpose of harm prevention.[6]

It is suggested that the purpose of criminal law is to preserve the well being and general order of society.[7] It is to protect the public.[8]

One of primary concerns of the proper functioning of the system is toe ensure that "the innocent must not be convicted".[9]

One of the essential requirements to a properly functioning justice system is that it must have "public confidence", which is necessary for the integrity of the rule of law.[10]

  1. Proprietary Articles Trade Association v Attorney General of Canada, [1931] A.C. 310 at p.324 per Lord Atkin
    Reference re Firearms Act (Can.), [2000] 1 SCR 783, 2000 SCC 31 (CanLII)
  2. Margarine Reference, [1949] SCR 1, 1948 CanLII 2 (SCC) at p. 50
  3. Margarine Reference, ibid.
    Reference re Firearms Act, supra at para 27
  4. R v Greenwood, 1991 CanLII 2730 (ON CA)
  5. Greenwood, ibid.
  6. R v Malmo-Levine, [2003] 3 SCR 571, 2003 SCC 74 (CanLII)
  7. R v Chisholm, (1985), 18 CCC (3d) 518 (*no link) at p. 531
  8. R v B.(S.J.), 2002 ABCA 143 (CanLII) at para 65
  9. R v Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at para 71
    R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281 at para 24
  10. R v Hall, 2002 SCC 64 ("Public confidence is essential to the proper functioning of ... the justice system as a whole... Indeed, public confidence and the integrity of the rule of law are inextricably intertwined.")

Source of Criminal Law

The Parliament of Canada has the sole power to enact criminal prohibitions and determine their punishments.[1]

Constitutional Authority
The Constitution Act, 1867 sets out the divisions of powers between the federal and provincial governments. Section 91(27) bestows the authority upon the federal government to create legislation in relation to criminal law.[2] However, when it comes to matters relating to the investigation and prosecution of criminal offences, s. 92(14) bestows authority upon the provincial government to administer.[3] This power permits the provinces to constitute provincial and territorial courts which are created by the provincial court act or equivalent.

The federal power over criminal law includes the power to create substantive law relating to crimes.[4] It also empowers the federal government to grant jurisdiction to specific courts, including those constituted by the provinces, over certain offences.[5]

Criminal Legislation
All criminal offences are created by statute of Parliament. Most are found within the Criminal Code of Canada, with additional criminal offences in the Controlled Drugs and Substances Act and several others.

Common Law
Section 9 of the Criminal Code provides that there can be no common law criminal offences.[6] However, common law defences have a role in criminal law.[7]

Section 11(g) of the Charter provides that no person can be found guilty of an offence other than those that constitute an offence under Canadian law or international law.[8]

Charter Rights
Criminal law is only valid where it complies with the Canadian Charter of Rights and Freedoms. Offences that are in violation of the Charter or criminal procedures that violate the Charter cannot be enforced.

Rules of evidence and procedure in criminal matters are governed by federal law under s. 91(27). Accordingly, criminal courts must apply the Canada Evidence Act and enact rules of court pursuant to the Criminal Code.[9]

  1. R v Lloyd, 2016 SCC 13 (CanLII) at para 1
  2. More specifically, in relation to "the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters."
  3. s. 92(14) authorizes the province to makes laws in relation to "the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts."
    see also exception in wording of 91(27)
  4. Reference Re Young Offenders Act (P.E.I.), 1990 CanLII 19 (SCC), [1991] 1 SCR 252
  5. References Re Young Offenders Act (PEI), supra
  6. see also R v Amato, [1982] 2 SCR 418, 1982 CanLII 31 (SCC)
  7. See s. 8 and Levis (City) v Tétrault, 2006 SCC 12 (CanLII)
    Frey v Fedoruk et al., [1950] SCR 517, 1950 CanLII 24 (SCC)
    Note that s. 8(2) permits the English criminal law as it was immediately before April 1, 1955 to still apply
  8. See section 11(g) of the Charter
  9. for example see s. 482(1) and (2)
    see also Role of Trial Judge and Case Management