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 CanLII links) 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]

  1. R v Lloyd, 2016 SCC 13 (CanLII) at para 1

Constitutional Authority to Create Law

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.[1] 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.[2] 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.[3] It also empowers the federal government to grant jurisdiction to specific courts, including those constituted by the provinces, over certain offences.[4]

  1. More specifically, in relation to "the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters."
  2. 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)
  3. Reference Re Young Offenders Act (PEI), 1990 CanLII 19 (SCC), [1991] 1 SCR 252
  4. References Re Young Offenders Act (PEI), ibid.

Common Law

Section 9 of the Criminal Code provides that there can be no common law criminal offences.[1] However, under s. 8 common law defences have a role in criminal law.[2]

8 ...
Common law principles continued
(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.
R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138.


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.[3]

Equity Has No Status in Criminal Law
The principles of the laws of equity have no relevance to criminal law.[4]

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.

  1. see also R v Amato, [1982] 2 SCR 418, 1982 CanLII 31 (SCC)
  2. See s. 8 and Levis (City) v Tétrault, 2006 SCC 12 (CanLII)
    Frey v Fedoruk et al., [1950] SCR 517, 1950 CanLII 24 (SCC)
    Amato, supra
    Note that s. 8(2) permits the English criminal law as it was immediately before April 1, 1955 to still apply
  3. See section 11(g) of the Charter
  4. R v Steinkey, 2017 ABQB 378 (CanLII), at para 33

Law Must Comply with 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.[1]

  1. for example see s. 482(1) and (2)
    see also Role of Trial Judge and Case Management

Laws of England

Application of criminal law of England
(2) The criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.
R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138.


Criminal offences to be under law of Canada
9 Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730

(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or
(c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada,

but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court. R.S., 1985, c. C-46, s. 9; R.S., 1985, c. 27 (1st Supp.), s. 6, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 10.


See Also