ch 1

Federalism and Sources of Law

  • Primary vs. secondary sources of law.

  • Federalism: division of powers between federal and provincial governments.

  • One criminal code exists in Canada; federal doesn't permit provinces to create their own.

  • Courts resolve questions related to laws unless they violate the Charter.

Charter of Rights and Freedoms

  • Established in 1982, constrains government actions.

  • Courts can strike down laws that infringe on Charter rights.

Criminal Law Basics

  • Criminal law outlines rules for conduct considered crimes by the state.

  • Two essential elements of crime:

    a. Conduct with harmful public effects.

    b. Corresponding penalty for violation.

Categories of Crimes in Canada

  • Summary Conviction Offences:

    • Tried before provincial judges only.

    • Max penalties: fine of 50005000 or imprisonment of up to 2 years minus a day.

  • Indictable Offences:

    • Serious in nature with severe penalties.

    • Can be tried in multiple court procedures.

  • Hybrid/Dual Offences:

    • May be prosecuted as either summary or indictable.

Judicial Discretion and Legislative Overlap

  • Courts assess provincial legislation's alignment with federal criminal law powers.

  • Sensitivity to local vs. national interests when evaluating laws.

Key Cases

  • Morgentaler Case: Abortion law struck down for violating Charter rights, particularly a woman's right to security of the person.

  • Assisted Human Reproduction Act: Examined the division of powers regarding health legislation, analyzing overlap of provincial and federal jurisdiction.

  • Insite Case: Upheld Charter rights for medicinal exemptions, specifically regarding access to supervised drug consumption sites.

  • Reference Re Validity of Section 5(a) of the Dairy Industry Act (Margarine Case): The Supreme Court of Canada ruled that the federal government's attempt to prohibit the manufacture and sale of margarine fell outside its criminal law power, as the purpose of the legislation was primarily economic regulation rather than public safety or health.

True Crimes vs. Regulatory Offences

  • True Crimes: Serious breaches deemed as deserving punishment (e.g., murder).

  • Regulatory Offences: Minor violations regulating public welfare (e.g., food packaging).

Legal Framework and Definitions

  • Criminal Code: Defines offences and procedures; encompasses federal criminal law power.

  • Jurisdictions: Defined limits under the Constitution Act 1867 for federal vs. provincial laws.

  • Oakes Test: Evaluates if limits on Charter rights are justified.