Criminal Law

Question 1

3 P’s of Criminal Law

Answer 1

Prohibition
Penalty
Public Purpose

Question 2

Section 91(27) Constitution Act 1867

Answer 2

Federal Criminal Law

Question 3

Criminal law in Canada with regards to the federal power is substantive and procedural

Answer 3

What is substantive criminal law? This is the law itself; it defines the act that is prohibited and the penalty for it.

What is procedural criminal law? The regulation of the courts — trial process, etc. It is the machinery, the rules, that help you apply your substantive law.

Question 4

Section 92(14) Constitution Act 1867

Answer 4

provincial power to regulate the provincial courts

Question 5

Section 92(6) Constitution Act 1867

Answer 5

provincial jurisdiction over “prisons” (whereas Feds have jurisdiction over penitentiaries).

Question 6

Section 92(15) Constitution Act 1867

Answer 6

provincial power over “quasi-criminal law” (i.e., regulatory offences – consumer protection violations, parking and impaired driving violations).

Question 7

Board of Commerce (1922)

Answer 7

Viscount Haldane of the Privy Council of England tells us that criminal law is the “subject matter which by its very nature belongs to the domain of criminal jurisprudence.”

Question 8

Proprietary Articles Trade Association (PATA) v Canada (1931)

Answer 8

What is this case about? It is a challenge on the constitutionality brought by many companies with regards to an act – the Proprietary Articles Trade Association Act. The criminal code was amended to prohibit certain companies merging together because it threatened the competition within the Dominion of Canada, and this was a restraint of commerce. The company brought forward a challenge on the constitutionality on the basis that the criminal portion of the act is encroaching on the provincial power of property and civil rights.

The Court ruled that any provision that gave rise to penal consequences could be defined as criminal law, and therefore under the jurisdiction of the federal government.

That was highly controversial because the courts were essentially saying that you no longer need to look at the substance of the law, but just at how the law looks from the outside; how it is structured.

If there prohibition backed by a penalty the PATA case says it’s criminal law. You could pretty much put a prohibition and a penalty everywhere, and that is what they were doing here. They were badly encroaching on provincial power. But since they have the right shape of the law, according to Lord Atkin, it doesn’t matter whether or not in essence – the pith and substance — of the legislation is criminal law. As long as there is a prohibition backed by a penalty it is okay.

Question 9

Margarine Reference (1949)

Answer 9

The federal government was banning margarine because it was assumed to cause health problems. However, later it was discovered that it did not cause health problems – science caught up.

We had a very powerful dairy industry. The diary industry were concerned with butter-like products, such as margarine, and wanted it prohibited. The government agreed and said it was for health purposes.
The government of Québec asked for a reference to the Privy Council to provide an advisory opinion on whether the Section 5(a) of the Dairy Industry Act was ultra vires or within the power of the Parliament of Canada, and if so, to what extent.

The Québec government wanted to ask the Privy Council to determine whether or not it was beyond the scope of the federal government to have that Section of the Dairy Industry Act.

This was directly after the PATA case. The federal government started off by saying that this was a prohibition backed by a penalty.

The Privy Council ask what the Act was actually doing; so the exact opposite of how they ruled in the PATA case.

On the face of it, the prohibition looked like criminal law. However, in the pith and substance of it…what was really being done? Was this act to really restrict something that would negatively impact the population of Canada, or was it to colourably trying through the backdoor to regulate property and civil rights of the province?

This is an important case because it tells you that you need the three Ps to have a criminal law in Canada — prohibition, penalty, Public Purpose.

Now we know that not everything can be criminal law.

It also defines the Doctrine of Colourability, which was mentioned before with regards to the 1993 Morgentaler case.

Question 10

Re Firearms Act (2000)

Answer 10

Need to research later.*****

Question 11

Ward v Canada (2002)

Answer 11

Case that decides whether Section 27 of the Marine Mammal Regulations act which prohibited the sale, trade and barter of blue-back seals.

The federal government said that that is a valid exercise of its criminal law power. The court said that the fact that the provision had the effect of limiting cruelty towards animals, which was a public purpose that could be valid, …in pith and substance the legislation was about controlling fisheries in Canada to prevent the depletion of resources.

So yes, there is an ancillary effect of protecting those animals. But in pith and substance the act is not really doing that. The entirety of the act is trying to regulate fisheries. Fisheries are under property and civil rights, which is a provincial power.

Question 12

Canada v PHS Community Services Society (2011)

Answer 12

This is about Insite in Vancouver. We have this Act which is the Controlled Drugs and Substances Act Section 56…Insite is the first safe injection site in North America. They allow drug users to come and inject their drugs, and they give them clean needles and syringes. However, this creates a problem with regards to the Act because of the illegal drugs. What happens is, because it is serving a public purpose, there is a provision within that Act that says there is an exception – if you are trying to do this to actually help the safety of these people, which is the case, it is okay to have illicit substances on the premises.

What happened was that when they were renewing the exemption, because they had to apply every five years, the Health Ministry in 2003 allowed them. However, five years later in 2008, the Health Ministry denied the exemption.

Insite was smart. They brought an action against the federal government. They didn’t bring a case on appeal for not getting the exemption. They went for a more powerful route. They try to challenge the jurisdiction of the act entirely and make the claim that with regards to safe injection sites it falls under the provincial powers of healthcare.

Insite wanted the Supreme Court to review the constitutionality of the act. They said that the federal government was encroaching on the provincial power with regards to healthcare.

The federal government argued that this was criminal law and within its own power.

Both levels of government were asking which laws supersede the other — does public health take precedence over criminal law, or is it the other way around?

The court said that it was criminal law and it takes precedence. So, the prohibition of possession and trafficking of this Act are constitutionally valid, and therefore applicable, because all of the elements of a criminal law where there – prohibition, penalty, and public purpose.

This also tells you that the provincial power is over health services. The court admits that.

Insite’s aim was to advance the public interest as well and it would want for that purpose to be exempt from the operation of criminal law. However, the court said no to this.

It is not because you are advancing the public purpose you can withdraw yourself from criminal law.

Why does criminal law supersede the provincial law of healthcare? The Doctrine of Paramountcy.

We know that when we have a federal law and we have a provincial law, and they both could apply but they might come in conflict with one another, the federal power always takes precedence.

Remember Kelzen with his pyramid of hierarchy. The Constitution is at the very top, and then within the Constitution the federal law is on top of the provincial law.

The Paramountcy Doctrine will always tell you that the federal law wins.

The Court gives Insite an exemption on another ground. However, they were not deemed to have enacted a law that was beyond the scope of federal power.

Failure to grant the exemption breached the clinical users’ rights to life, security, and liberty of person. So, under Section 7 they had to give them the exemption. They had to be in accordance with the Charter.

Question 13

Morgentaler

Answer 13

The history is that in 1973 there was an Act in Canada that prohibited abortion except when it concern the health of the mother; if you get a clinical exemption where the health and the life of the mother is at stake then an abortion could be performed.

Morgentaler continued to perform abortions. He went to court in Québec. He pled necessity – he said he had to perform the abortions because the delays to get the exemption for so long that it started to endanger the lives of the women he was treating.

What did the court say? The Court agreed, it was necessity.

Then the case went to appeal. The Court of Appeal reversed the decision.

The problem is that you cannot retry and overturn the conviction; that would no longer stand today. However, at that time this was possible. Therefore, Morgentaler went to prison.

Then, from 1973 – 1975 Morgentaler is tried and repeatedly acquitted. He then tries to challenge the abortion law again once he is finally jailed.

1976 he challenges the criminal code that prohibits abortion. That is when he is successful in changing the criminal code.

On what ground did he challenge the Act? He says that there are new technologies allowing physicians to carry out abortions safely. They no longer pose a health risk to the mothers. Therefore, it should be okay for the physicians to just go ahead and perform abortions.

Initially it was believed that it was for the health and safety of women that they could not just randomly perform abortions, because a lot of women died while they were aborting fetuses.

Since there is no longer a health aspect with regards to the mother, it was said to be fine.

What does the Supreme Court say in 1976? It rejected Morgentaler’s argument because it claimed that the public purpose that was being served by the legislation was not the protection of the expecting mother, but the protection of the fetus.

They said that the federal government was still entitled to invoke criminal lawmaking power over this area of abortion because the purpose was not actually to protect the expecting mother, but was to protect the fetus instead. The purpose was actually morality.

In this particular case the Court decided against Morgentaler, but they did admit that the presence of new technologies had an effect, but it continued to be a valid criminal law.

Question 14

Section 7 Charter of Rights and Freedoms

Answer 14

life, liberty, and security of persons.

“Everyone has the right to life, liberty, and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

However, Section 7 is not an absolute right. We know this for two reasons:

1) Section 1 comes as a limit on any Charter right. From 2-15, Section 7 will apply. Government has the right to pose a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. That is the standard established by Chief Justice Dickson in the Oakes case, and it has four parts. It is a test that we apply to know whether or not these particular principles of a free and democratic society apply.
2) An “internal qualifier”. Section 7 is doubly qualified. It is firstly qualified by Section 1, like any other Charter right. But it is also qualified by this: “therefore, except in accordance with the principles of fundamental justice.” That means that my life, liberty, and security is absolute except if the government can demonstrate that with in accordance with the principle of fundamental justice they can actually infringe and limit my rights.

Question 15

Rodriguez v British Columbia [1993]

Answer 15

(Section 7) - What does ‘life’ mean?

the right to be alive.

Question 16

Carter (2015)

Answer 16

it doesn’t give you a right to die. There is no right to death. But there is the right to make the decision about one’s life when it progresses towards death.

Question 17

What is the meaning of “liberty”?

Answer 17

Physical liberty — the freedom to move around as you please.

Mental liberty – to make decisions for yourself.

There is the right not to be physically or mentally restricted. In criminal law, for example, detention by police upon arrest.

Question 18

What is the meaning of “security of person”?

Answer 18

It is the right to privacy about bodily health and psychological integrity.

It is the protection from undue psychological harm by the state.

Question 19

Principles of Fundamental Justice in Section 7

Answer 19

1) The tenants/principles underwriting our legal system have to be upheld.

These are things that are common to the entire Society of Canada that we believe our legal system should be about.

2) The infringement has to be procedurally fair.

In the procedure, your right to trial, the way you were detained, etc. needs to be fair, but it is okay still if there is an infringement on your Section 7 right.

3) The infringement has to be substantively fair.

That is not with regards to the court proceedings or the arrest, but with regards to the law itself. It has to be fair.

Question 20

Re BC Motor Vehicle Act.

Answer 20

Altogether, they are the principles of fundamental justice. It “embraces the basic tenants and principles, not only for our judicial process, but also of other components of our legal system” — Lamer J in Re BC Motor Vehicle Act.

Question 21

R v Askov [1990]

Answer 21

Having a trial within a reasonable time.

Question 22

R v N.S. [ 2012]

Answer 22

Fair trial — example: ability to see a witnesses face.

The fair trial case — R v N.S. [ 2012] — this is where there is a victim of sexual assault; the victim is Muslim and she wore a full headscarf. She was allowed to testify at the trial while wearing the full headscarf. The accused said that this violated his right to a fair trial because he has a right to have the victim confronted as a character witness, and to test the credibility of the witness. Since, he was unable to see her face there was no ability to assess the credibility of the witness during cross examination. Therefore, that was a violation of his Section 7 rights.

Question 23

Principles of the legal system to be upheld

Answer 23

The principle against self-incrimination;
Presumption of innocence;
Only voluntary conduct should attract liability — means that principles with regards to fundamental justice.
But it cannot be something involuntary if you are mental incapable and happy to commit a crime. It needs to be something that is willingly done, and therefore attracts liability or a penalty with regards to criminal law.

Question 24

R v Heywood [1994]

Answer 24

This is about an offensive called vagrancy. The section of this Act says that vagrancy is everyone who “having at any time being convicted of an offensive under Section 271 (sexual assault) is found loitering in or near a school ground, playground, public park or bathing area.”

With this provision says is that if you have been convicted of a sexual assault and if you are found in proximity of a school or a public park you will be in violation of this provision, which is the crime of vagrancy.

In 1987 we have Heywood who was convicted on two counts of sexual assault. He is released in 1987 and found in a public park with a camera, and they could charge him with Section 271, but they let him go with a warning.

Then he is arrested two weeks later under the same circumstances. This time is was charged and searched; it was found that he was in possession of photographs depicting the genitalia of young children.

The accused is charged under this crime of Vagrancy.

Heywood argued that he could not be charged with vagrancy because it is a violation of his Section 7 rights. He argues that the vagrancy laws is overly broad. It is overly broad because it is too hard to focus on which part of the law applies in different circumstances.

The Court agreed. The court was trying to answer this question: are the means being used by the legislation necessary to achieve its purpose?

The court agreed that Section 7 rights were violated with regards to the substance of this law for three reasons:

Geographically: applies not only to schoolyards and playgrounds but also public parks.

This section says that if you are in a playground or in a public park, or a bathing area, or near a school you are potentially in violation of this section. That is pretty broad.

That means that if you had ever committed a sexual assault you could not just walk by a park or a schoolyard, etc.

We understand that the pith and substance of this Act was to protect children from sexual predators. But any public park might not be a children’s playground. So, this is a bit overly broad.

Duration: applies to persons convicted of sexual offences even when no longer posing a danger to children.

The court said that with regards to duration the Act was overly broad as well.

Let’s say you were convicted of sexual assault in college and you are found guilty. You could have lived your whole life and been 70 years old and still be convicted of vagrancy by coming near a public park. It is a bit harsh.

One time a offender does not mean you are always an offender. Canada believes in the rehabilitation of people.

If there is not an imminent danger to children, because that is the pith and substance of the Act, we should not be having this very broad provision.

Application: applies to all persons convicted of sexual offence (no distinction between child and adult victims).

Therefore, it says that any person who has committed a sexual of offence would be found in violation of the Act because the Act is overly broad.

So, the Act was so broad that Heywood’s Section 7 rights were violated. He was able to get off.

Question 25

R v Bedford [2013]

Answer 25

This was a case that was brought forward to the Supreme Court by Bedford because there was a criminal code provision that criminalized any activity relating to prostitution; so, living off the avails of prostitution and keeping a nosy-house (brothel).

The Supreme Court ultimately ruled that the public purpose for which the legislation was enacted was to maintain peace an order. However, the law had such an adverse effect on the Section 7 rights of the sex workers that it had to be repealed.

Since everything linked to prostitution was criminalized, sex workers, when they were victims of assault, or when they were treated poorly, were reluctant to come forward to the authorities because they knew they would be unmasked as being sex workers. Therefore, they would never bring charges.

That is a huge violation of your life, security, and your liberty.

They brought together a challenge and the Court said that the adverse effect on the well-being of the sex workers cannot be balanced over the public purpose of the legislation.

Why this case is so important is that when they are looking at Section 7 they do not limit themselves regards to the specific person. We don’t limit ourselves to looking at whether or not there is an infringement of the individual. We also need to weigh in the balancing test the interests of society as a whole.

On one side you have Section 7 and the judicial system of Canada. We want to respect the principles of fundamental justice; we want it to be procedurally fair; we want the tenants of the judicial system to be upheld; we wanted to be substantially fair.

On the other hand, we also have the interests of a community, and we need to balance these things. So, we are not just narrowly focusing on Section 7 rights of a victim or a defendant; we are also balancing the positions and ideas of Canada as a society.