Week 2

Criminal Law & The Constitution

Review & Background Charter: Rights, freedoms, fairness 1982: Constitution no longer have to go to England. o Charter is a constitutional document Criminal Law: protective, punitive, investigative Balance? Between charter and criminal law o Reasonable Limits Section 1 Subject only to such reasonable limits prescribed by law Demonstrably justified in a free and democrative society Federal & Provincial jurisdiction o Politics of creating offences Division of Powers Constitution Act: 1867 Section 91 (27) o Federal government o Only federal parliament can enact criminal law o Most laws in Criminal Code of Canada (CC) o Federal criminal law powers interpreted broadly o Goal: Punishment Constitution Act: 1867 Section 92 (15) o Provinces and municipalities o Fines, penalties, imprisonment o Goal: Regulatory & Public Welfare o Most common Provincial Powers o Regulatory licensing o Attorney general prosecutes criminal code offences for sentencing less than two years o Probation and parole o Less focus on punishment and prohibition Why? Provinces protecting peoples rights (pre charter) o Charter alters division of powers

Week 2 R v. Big M Drug Mart [1985]

Appellant: Crown Defendant: Big M Drug Mart On appeal from court of appeal of Alberta Shop was open Sunday in Alberta Facts Crime: Violating Lords Day Act Does Lords Day Act violate charter section 2A? Issue Is the crime a legitimate federal power? Decision Appeal brought by crown was dismissed Compulsory observance infringes section 2A Reason Inconsistence with charter, therefore it has no force Lords Day Act was struck down Relevance Applied section 52 (1): Constitution is supreme law Lords Day Act is the first law struck down by new constitutional power Habeas Corpus Writ: order from legal authority Latin: That you have the body can physically appear before the court Accused criminal must be brought before the court Purpose: o Determine legality of arrest/detention o Protect from illegal detention Applications for writ of habeas corpus o Made in writing o Usually after conviction o Challenge legality of laws used against individual o Requirements: Applicant must prove: deprivation of liberty State must prove: unlawfulness of deprivation in lawfulness Canadian Context o Reflected in charter section 10(C) Everyone has the right upon detention To have the validity of the detention determined by way of habeas corpus and to be released if detention is unlawful o Under criminal code, where a right to appeal exists in law, writ is unavailable o Other historical events that led to denial of writ? War measures act Internment during wars: Ukrainians during world war one, and Japanese during world war two

Week 2
Charter of Rights & Freedoms Investigation o Search & Seizure Charter: Section 8 Reasonable expectation of privacy Diminished expectations: inmates, convicted child molesters, travelers, students, businesses Warrants generally required Probable Grounds: Real Reason 3 Part Test: Admit evidence obtained in violation of section 8 Nature of violation How violation impacts accuseds charter interest (how bad was the violation?) Societys Impact (is it better for society as a whole?) o Arbitrary Detention and Imprisonment Charter: Section 9 Guard against arbitrary (biased) detention Random vehicle stops are a reasonable limit Reasonable suspicion = brief detention Remedy: Habeas Corpus o Right to Counsel Charter: Section 10 (b) Right to retain / instruct counsel Right to be informed of this right Process o Charter & Criminal Process (Trial) Section 11 Disclosure Right to full answer and defense Protection from pre-trial publicity Right to jury trial: severe cases Can also be waived Right to be presumed innocent (Quantum of Proof) Stigma associated with initial charge Trial in a reasonable time

Week 2 R v. Askov [1990]

Appellants: Elijah Askov, Ralph Hussey, Samuel Gugilotta, Edward Melo Respondent: Crown Appeal from court of appeal of Ontario Facts Issue Decision Reason Relevance Appellants charged with conspiracy to commit extortion (1983) Trial (1986) Appellants moved to stay trial citing unreasonable delay; denied by lower court Appeal should be allowed; grant stay of proceedings Violated section 11(b): quick resolution important (memory, illness); victims interest Defines delay; 2 years is unreasonable; created prejudice against appellants o Court would feel obligated to get trial done quickly or they would be annoyed o Child in back seat: are we there yet?

Recent Example: Trials regarding drunk driving (trials are extremely slow) Offences & Defenses o Criminal offences can be challenged If found to violate charter provisions Fundamental Freedoms Principles of Fundamental Justice Fundamental Freedoms o Section 2: Everyone has the following fundamental freedoms: b) Freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication o Interpreted broadly; short of violence o Some types of expression arent protected Section 1: Reasonable limits clause Making/distributing obscene material Promotion of hatred against identifiable group

Week 2 R v Keegstra [1990]

Appellant: Crown Respondent: Keegstra On appeal from court of appeal of Alberta Facts Keegstra charged with promoting hatred against identifiable group Convicted, appealed which resulted in case being turned over Are Keegstras expressions protected by section 2B? Is criminal code section 319(s)/281(2) constitutional Appeal allowed Criminal code section 319(s)/281(2) is constitutional Hate propaganda is protected under 2b; offence does not overly restrict freedom Keegstras conviction restored; offence is a reasonable limit on freedom Section 319(s)/281(2) of criminal code was not struck down

Issue

Decision

Reason Relevance

Principles of Fundamental Justice o Section 7: Everyone has the right to life, liberty, and security of the person and the right not to be deprived there of except in accordance with the principles of fundamental justice o Idea that criminal law should respond to harm is not considered a principle of fundamental justice Why? No definition of harm

Week 2 R v Morgantaler [1988]

Appellant: Dr.s Morgantaler, Smoiling, Scott Respondent: Crown On appeal from court of appeal of Ontario Facts Criminal code 251: patients require certificate and hospital approval for abortion; Dr.s charged with conspiracy to provide abortion Does criminal code 251 violate charter section 7 rights? Is this a reasonable limit? Appeals allowed, acquittals restored; Section 251 violates section 7 rights Cannot be justified Security of person = Right to control ones body 251 causes physical and psychological harm Section 251 struck down because it violated section 7 which caused arbitrariness in health care.

Issue Decision Reason Relevance