View source for Sources of Criminal Law

{{Currency2|January|2020}}
{{LevelZero}}{{HeaderCrimLaw}}
==What is Criminal Law==
; Objective of Criminal Law
It is suggested that the purpose of criminal law is to preserve the well being and general order of society.<ref>
{{CanLIIRP|Chisholm|g9kht|1985 CanLII 3587 (NSCA)|18 CCC (3d) 518}}{{perNSCA|Macdonald JA}}{{atp|531}}
</ref>
It is also to protect the public.<ref>
{{CanLIIRP|B(SJ)|5k1v|2002 ABCA 143 (CanLII)|166 CCC (3d) 537}}{{perABCA|Berger JA}}{{atL|5k1v|65}}
</ref>

Put differently, the purpose of the criminal law is the "public identification of wrongdoing" that "violates public order and is so blameworthy that it deserves penal sanction."<ref>
{{CanLIIRP|Mabior|ft1pq|2012 SCC 47 (CanLII)|[2012] 2 SCR 584}}{{perSCC-H|McLachlin CJ}}
</ref>
It covers laws that "promote public peace, safety, order, health or another legitimate public purpose."<ref>
{{CanLIIRP|Malmo-Levine|1gbdn|2003 SCC 74 (CanLII)|[2003] 3 SCR 571}}{{perSCC|Gonthier and Binnie JJ}}{{atL|1gbdn|74}}<br>
{{CanLIIRPC|Labatt Breweries of Canada Ltd. v. Attorney General of Canada|1z46x|1979 CanLII 190 (SCC)|[1980] 1 SCR 914}}{{fix}}<br>
</ref>

The necessary elements for a law to be "criminal law" are 1) a "valid criminal law purpose", 2) backed by a "prohibition" and 3) a "penalty."<ref>
{{ibid1|Malmo-Levine}} at para 74<Br>
{{CanLIIRPC|Reference re Firearms Act (Can.)|5251|2000 SCC 31 (CanLII)|[2000] 1 SCR 783}}{{TheCourtSCC}}<br>
{{UKCase|Proprietary Articles Trade Association v Attorney General of Canada|, [1931] A.C. 310}}, per Lord Atkin{{atp|324}}<br>
</ref>

It is essential that there be some "public purpose" behind the prohibition.<ref>
{{ibid1|Malmo-Levine}} at para 74<Br>
{{CanLIIPC|RJR-MacDonald Inc v Canada (Attorney General)|1frgz|[1995] 3 SCR 199}}{{fix}}<Br>
{{CanLIIRPC|Margarine Reference|1nmzn|1948 CanLII 2 (SCC)|[1949] SCR 1}}{{Plurality}}{{Atp|50}}<br>
</ref>

There is no necessary requirement that criminal law be for the purpose of harm prevention.<ref>
{{supra1|Malmo-Levine}}</ref>

; Criminal Law and Morality
Morality is a legitimate object of criminal law.<REf>
{{ibid1|Malmo-Levine}} at para 77<Br>
Labatt at p. 933
</ref>
In this context, morality refers to "societal values beyond the simply prurient or prudish".<Ref>
{{ibid1|Malmo-Levine}} at para 77<Br>
{{CanLIIRP|Butler|1fsdj|1992 CanLII 124 (SCC)|[1992] 1 SCR 452}} at p. 498<br>
{{CanLIIRP|Murdock|6mdj|2003 CanLII 4306 (ON CA)|11 CR (6th) 43 (Ont. C.A.)}}{{perONCA-H|Doherty JA}} at para. 32
</ref>

It is said criminal law may only apply to conduct that "is so inconsistent with the shared morality of society so as to warrant public condemnation and punishment."<ref>
{{CanLIIRP|Greenwood|1p78s|1991 CanLII 2730 (ON CA)|67 CCC (3d) 435}}{{perONCA-H|Doherty JA}}<br>
{{CanLIIRP|Wholesale Travel Group|1fsjf|1991 CanLII 39 (SCC)|[1991] 3 SCR 154}}{{perSCC|Cory J}} ("Acts or actions are criminal when they constitute conduct that is, in itself, so abhorrent to the basic values of human society that it ought to be prohibited completely...")
</ref>

Acts that are considered "innocent or morally neutral" should not be included.<ref>
{{ibid1|Greenwood}}<br>
</ref>

; Purpose of Criminal Justice System
One of primary concerns of the proper functioning of the system is to ensure that "the innocent must not be convicted."<ref>
{{CanLIIRP|Mills|1fqkl|1999 CanLII 637 (SCC)|[1999] 3 SCR 668}}{{perSCC-H|McLachlin and Iacobucci JJ}}{{atL|1fqkl|71}}<br>
{{CanLIIRP|Leipert|1fr41|1997 CanLII 367 (SCC)|[1997] 1 SCR 281}}{{perSCC-H|McLachlin J}}{{atL|1fr41|24}}<br>
</ref>

One of the essential requirements for a properly functioning justice system is that it must have "public confidence", which is necessary for the integrity of the rule of law.<ref>
{{CanLIIRP|Hall|51rq|2002 SCC 64 (CanLII)|[2002] 3 SCR 309}}{{perSCC-H|McLachlin CJ}} ("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.") 
</ref>

; Rule of Law
It is a constitutional requirement that everyone, including all public officers, are subject to the ordinary laws of the country.<ref>
{{CanLIIRP|Campbell|1fqp4|1999 CanLII 676 (SCC)|[1999] 1 SCR 565}}{{perSCC-H|Binnie J}}{{atL|1fqp4|1}}(It is a "constitutional principle that everyone from the highest officers of the state to the constable on the beat is subject to the ordinary law of the land. ")
</ref>
The preamble of the Constitution affirms that the rule of law is a fundamental basis for the governance of Canada.<ref>
{{CanLIIRPC|Canadian Council of Churches v. Canada (Minister of Employment and Immigration)|1fsg5|1992 CanLII 116 (SCC)| [1992] 1 SCR 236, 88 D.L.R. (4th) 193}}{{perSCC|Cory J}}
</ref>
{{reflist|2}}

==Source of Criminal Law==
The Parliament of Canada has the sole power to enact criminal prohibitions and determine their punishments.<ref>
{{CanLIIRP|Lloyd|gpg9t|2016 SCC 13 (CanLII)|[2016] 1 SCR 130}}{{perSCC-H|McLachlin CJ}}{{AtL|gpg9t|1}}
</ref>

{{reflist|2}}
===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.<ref>
More specifically, in relation to "the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters."</ref> 
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.<ref>
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."<Br>
see also exception in wording of 91(27)</ref> 
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.<ref>
{{CanLIIRPC|Reference Re Young Offenders Act (PEI)|1fsnh|1990 CanLII 19 (SCC)|[1991] 1 SCR 252}}{{perSCC|Lamer CJ}}
</ref>
It also empowers the federal government to grant jurisdiction to specific courts, including those constituted by the provinces, over certain offences.<ref>
{{ibid1|References Re Young Offenders Act (PEI)}}<br>
</ref>

The power is not limited to those acts or omission that result in some harm.<ref>
{{CanLIIRP|Malmo-Levine|1gbdn|2003 SCC 74 (CanLII)|[2003] 3 SCR 571}}{{perSCC|Gonthier and Binnie JJ}}
</ref>
Legislature may legislate on grounds of morality where it safeguards values which are "integral to a free and democratic society."<ref>
{{CanLIIRP|Butler|1fsdj|1992 CanLII 124 (SCC)|[1992] 1 SCR 452}}{{perSCC-H|Sopinka J}}(Parliament may legislate "on the basis of some fundamental conception of morality for the purposes of safeguarding the values which are integral to a free and democratic society")
</ref>

{{Reflist|2}}

===Common Law===
The tradition of the common law allows for judges to "incrementally" adopt rules "where legislative gasp exists".<Ref>
{{CanLIIRPC|Fleming v Ontario|j2pd2|2019 SCC 45 (CanLII)|437 DLR (4th) 220}}{{perSCC|Cote J}}{{AtL|j2pd2|42}} ("That being said, the courts cannot abdicate their role of incrementally adapting common law rules where legislative gaps exist .... This Court has in fact relied on the ancillary powers doctrine to recognize the existence of common law powers in many circumstances in the past. As Moldaver J. explained in concurring reasons in {{CanLIIRP|Reeves|hwk3k|2018 SCC 56 (CanLII)|[2018] 3 SCR 531}}{{perSCC|Karakatsanis J}}, the ancillary powers doctrine has been used to affirm many common law police powers now considered fundamental." [quotation and citations removed])<br>
{{CanLIIRP|Mann|1hmp1|2004 SCC 52 (CanLII)|[2004] 3 SCR 59}}{{AtL|1hmp1|17}}
</ref>

Courts are expected to make incremental changes in order to "adap[t] to reflect societal change" so that the law reflects the "needs and values" of society.<Ref>
{{ibid1|Mann}}{{AtL|1hmp1|17}} ("The Court cannot, however, shy away from the task where common law rules are required to be incrementally adapted to reflect societal change.  Courts, as its custodians, share responsibility for ensuring that the common law reflects current and emerging societal needs and values")
</ref>

The legislature retains the power to expand, modify, restrict, or abolish any common law power subject to necessary constitutional limits.<ref>
{{ibid1|Fleming}}{{atL|j2pd2|42}} ("Of course, the legislature always retains the power to expand, modify, restrict or abolish such common law powers, subject to constitutional limits.")
</ref>

; No Common Law offences
Section 9 of the ''Criminal Code'' provides that there can be no common law criminal offences.<ref>
see also {{CanLIIRP|Amato|1lpcs|1982 CanLII 31 (SCC)|[1982] 2 SCR 418}}{{perSCC|Dickson J}} </ref>

{{quotation2|
; 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 {{AnnSec7|730L}}
:(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., {{LegHistory80s|1985, c. C-46}}, s. 9; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 6, c. 1 (4th Supp.), s. 18(F); {{LegHistory90s|1995, c. 22}}, s. 10.
|{{CCCSec2|9}}
|{{NoteUp|9}}
}}

Traditionally, the common law of Great Britain included criminal offences that were defined by the common law. <Ref>
{{CanLIIRx|Rapicon Inc|j02nr|2019 ABPC 98 (CanLII)}}{{perABPC|Rosborough J}}{{AtL|j02nr|23}}<br>
</ref>

However, under s. 8, common law defences maintain a role in the criminal law.<ref> See [{{CCCSec|8}} s. 8] and {{CanLIIRPC|Levis (City) v Tétrault|1n0zk|2006 SCC 12 (CanLII)|[2006] 1 SCR 420}}{{perSCC|LeBel J}}<br>
{{CanLIIRPC|Frey v Fedoruk et al|21v52|1950 CanLII 24 (SCC)|[1950] SCR 517}}{{perSCC|Cartwright J}}<br>
{{supra1|Amato}}<br>
Note that s. 8(2) permits the English criminal law as it was immediately before April 1, 1955 to still apply</ref>

{{quotation2|
8<br>
{{removed|(1)}}
; 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.<br>
{{removed|(3)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 8; {{LegHistory90s|1993, c. 28}}, s. 78; {{LegHistory00s|2002, c. 7}}, s. 138.
|{{CCCSec2|8}}
|{{NoteUp|8|2}}
}}

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.<ref>
See section 11(g) of the Charter
</ref>

; Equity in Criminal Law
The principles of the laws of equity have no relevance to criminal law.<ref>
{{CanLIIRx|Steinkey|h4930|2017 ABQB 378 (CanLII)}}{{perABQB|Belzil J}}{{atL|h4930|33}}<br>
</ref>

{{reflist|2}}

===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 various other Acts including:
* ''Controlled Drugs and Substances Act''
* ''Corruption of Foreign Public Officials Act''
* ''National Defence Act''
* ''Crimes Against Humanity and War Crimes Act''
* ''Competition Act''
* ''Cannabis Act''
* ''Security of Information Act''
* ''Anti-terrorism Act''
* ''Youth Criminal Justice Act''

Other criminal law related federal legislation include:
* ''Canadian Victims Bill of Rights''
* ''Contraventions Act''
* ''Criminal Records Act''
* ''Director of Public Prosecutions Act''
* ''DNA Identification Act''
* ''Expungement of Historically Unjust Convictions Act''
* ''Extradition Act''
* ''Identification of Criminals Act''
* ''International Transfer of Offenders Act''
* ''Mutual Legal Assistance in Criminal Matters Act''
* ''Proceeds of Crime (Money Laundering) and Terrorist Financing Act''
* ''Sex Offender Information Registration Act''
* ''Witness Protection Program Act''

{{reflist|2}}

===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.<ref>
for example see s.  482(1) and (2)<br>
see also [[Role of the Trial Judge]] and [[Case Management]]
</ref>
 
{{reflist|2}}

===Laws of England===

{{quotation2|
8<br>
{{removed|(1)}}
; 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.
<br>{{removed|(3)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 8; {{LegHistory90s|1993, c. 28}}, s. 78; {{LegHistory00s|2002, c. 7}}, s. 138.
|{{CCCSec2|8}}
|{{NoteUp|8|2}}
}}

{{quotation2|
; 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 {{AnnSec7|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., {{LegHistory80s|1985, c. C-46}}, s. 9; 
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 6, c. 1 (4th Supp.), s. 18(F); {{LegHistory90s|1995, c. 22}}, s. 10.
{{Annotation}}
|{{CCCSec2|9}}
|{{NoteUp|9}}
}}

==See Also==
* [[Criminal Law in the Canadian Territories]] - criminal law has different application in the territories