Criminal Law Notebook

Sources of Criminal Law

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This page was last substantively updated or reviewed January 2020. (Rev. # 91921)

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.[1] It is also to protect the public.[2]

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."[3] It covers laws that "promote public peace, safety, order, health or another legitimate public purpose."[4]

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."[5]

It is essential that there be some "public purpose" behind the prohibition.[6]

There is no necessary requirement that criminal law be for the purpose of harm prevention.[7]

Criminal Law and Morality

Morality is a legitimate object of criminal law.[8] In this context, morality refers to "societal values beyond the simply prurient or prudish".[9]

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."[10]

Acts that are considered "innocent or morally neutral" should not be included.[11]

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."[12]

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.[13]

Rule of Law

It is a constitutional requirement that everyone, including all public officers, are subject to the ordinary laws of the country.[14] The preamble of the Constitution affirms that the rule of law is a fundamental basis for the governance of Canada.[15]

  1. ↑ R v Chisholm, 1985 CanLII 3587 (NSCA), 18 CCC (3d) 518, per Macdonald JA, at p. 531
  2. ↑ R v B(SJ), 2002 ABCA 143 (CanLII), 166 CCC (3d) 537, per Berger JA, at para 65
  3. ↑ R v Mabior, 2012 SCC 47 (CanLII), [2012] 2 SCR 584, per McLachlin CJ
  4. ↑ R v Malmo-Levine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, per Gonthier and Binnie JJ, at para 74
    Labatt Breweries of Canada Ltd. v. Attorney General of Canada, 1979 CanLII 190 (SCC), [1980] 1 SCR 914(complete citation pending)
  5. ↑ Malmo-Levine, ibid. at para 74
    Reference re Firearms Act (Can.), 2000 SCC 31 (CanLII), [2000] 1 SCR 783, per curiam
    Proprietary Articles Trade Association v Attorney General of Canada , [1931] A.C. 310 (UK), per Lord Atkin, at p. 324
  6. ↑ Malmo-Levine, ibid. at para 74
    Template:CanLIIPC(complete citation pending)
    Margarine Reference, 1948 CanLII 2 (SCC), [1949] SCR 1, at p. 50
  7. ↑ Malmo-Levine, supra
  8. ↑ Malmo-Levine, ibid. at para 77
    Labatt at p. 933
  9. ↑ Malmo-Levine, ibid. at para 77
    R v Butler, 1992 CanLII 124 (SCC), [1992] 1 SCR 452 at p. 498
    R v Murdock, 2003 CanLII 4306 (ON CA), 11 CR (6th) 43 (Ont. C.A.), per Doherty JA at para. 32
  10. ↑ R v Greenwood, 1991 CanLII 2730 (ON CA), 67 CCC (3d) 435, per Doherty JA
    R v Wholesale Travel Group, 1991 CanLII 39 (SCC), [1991] 3 SCR 154, per 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...")
  11. ↑ Greenwood, ibid.
  12. ↑ R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, per McLachlin and Iacobucci JJ, at para 71
    R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 SCR 281, per McLachlin J, at para 24
  13. ↑ R v Hall, 2002 SCC 64 (CanLII), [2002] 3 SCR 309, per 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.")
  14. ↑ R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J, at para 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. ")
  15. ↑ Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC), [1992] 1 SCR 236, 88 D.L.R. (4th) 193, per Cory J

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), [2016] 1 SCR 130, per McLachlin CJ, 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]

The power is not limited to those acts or omission that result in some harm.[5] Legislature may legislate on grounds of morality where it safeguards values which are "integral to a free and democratic society."[6]

  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, per Lamer CJ
  4. ↑ References Re Young Offenders Act (PEI), ibid.
  5. ↑ R v Malmo-Levine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, per Gonthier and Binnie JJ
  6. ↑ R v Butler, 1992 CanLII 124 (SCC), [1992] 1 SCR 452, per 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")

Common Law

The tradition of the common law allows for judges to "incrementally" adopt rules "where legislative gasp exists".[1]

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.[2]

The legislature retains the power to expand, modify, restrict, or abolish any common law power subject to necessary constitutional limits.[3]

No Common Law offences

Section 9 of the Criminal Code provides that there can be no common law criminal offences.[4]

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 [order of discharge]

(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.

– CCC (CanLII), (DOJ)

Note up: 9

Traditionally, the common law of Great Britain included criminal offences that were defined by the common law. [5]

However, under s. 8, common law defences maintain a role in the criminal law.[6]

8
[omitted (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.
[omitted (3)]
R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138.

– CCC (CanLII), (DOJ)

Note up: 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.[7]

Equity in Criminal Law

The principles of the laws of equity have no relevance to criminal law.[8]

  1. ↑ Fleming v Ontario, 2019 SCC 45 (CanLII), 437 DLR (4th) 220, per Cote J, at para 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 R v Reeves, 2018 SCC 56 (CanLII), [2018] 3 SCR 531, per Karakatsanis J, the ancillary powers doctrine has been used to affirm many common law police powers now considered fundamental." [quotation and citations removed])
    R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, at para 17
  2. ↑ Mann, ibid., at para 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")
  3. ↑ Fleming, ibid., at para 42 ("Of course, the legislature always retains the power to expand, modify, restrict or abolish such common law powers, subject to constitutional limits.")
  4. ↑ see also R v Amato, 1982 CanLII 31 (SCC), [1982] 2 SCR 418, per Dickson J
  5. ↑ R v Rapicon Inc, 2019 ABPC 98 (CanLII), per Rosborough J, at para 23
  6. ↑ See s. 8 and Levis (City) v Tétrault, 2006 SCC 12 (CanLII), [2006] 1 SCR 420, per LeBel J
    Frey v Fedoruk et al, 1950 CanLII 24 (SCC), [1950] SCR 517, per Cartwright J
    Amato, supra
    Note that s. 8(2) permits the English criminal law as it was immediately before April 1, 1955 to still apply
  7. ↑ See section 11(g) of the Charter
  8. ↑ R v Steinkey, 2017 ABQB 378 (CanLII), per Belzil J, at para 33

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

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 the Trial Judge and Case Management

Laws of England

8
[omitted (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.
[omitted (3)]
R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138.

– CCC (CanLII), (DOJ)

Note up: 8(2)

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 [order of discharge]

(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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 9

See Also

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