Criminal Law: Class 1 - Sources of Law in Canada

Sources of Criminal Law

  • A. Statutes:

    • All offences in Canada must originate from legislation.

    • These include federal statutes and regulations (e.g., Criminal Code, Customs Act, Controlled Drugs and Substances Act) and provincial statutes and regulations (e.g., Highway Traffic Act, Public Health Acts, Occupational Safety regulations).

  • B. Judge-made Law:

    • Judges significantly shape criminal law through their power of interpretation, assigning diverse meanings to statutes.

    • The Supreme Court of Canada (SCC) emphasizes judicial discretion, stating that the modern approach to statutory interpretation requires understanding legislative words "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act and the intention of the Parliament."

    • Factors/Limitations affecting judicial interpretation:

      1. Imperfect statutory drafting: Legislators may not always achieve perfect clarity, leaving room for judicial clarification.

      2. Doctrine of Stare Decisis (to abide by the decision):

        • Lower courts are bound to follow decisions made by higher courts.

        • However, the Supreme Court of Canada retains the power to depart from its own previous decisions when deemed necessary.

      3. Historical origin of Canadian law: There's a question of whether Canadian judges blindly adhere to the wisdom derived from English case law.

      4. Use of secondary sources of interpretation: Judges may consult academic writings and law reform commission reports to aid in interpretation.

  • C. Charter of Rights and Freedoms:

    1. Purposeful interpretation of entrenched rights:

      • The SCC mandates that courts adopt a purposeful interpretation of the Charter.

      • According to S.52(1)S. 52(1) of the Constitution, including the Charter, it is "the supreme law of the land" and any inconsistent law is, to the extent of its inconsistency, "of no force or effect."

    2. Dialogue with Parliament:

      • Described as a "dangerous approach," the court in Mills stated that "Parliament may build on the court decision and develop a different scheme as long as it remains constitutional."

      • This implies a mutual respect: Parliament must respect court rulings, and the Court must respect Parliament's determination to improve judicial schemes.

      • If legislation supports two interpretations, a court should choose the one that upholds its constitutionality, leading to a "presumption of constitutionality."

      • A critical question is raised: Does this presumption of constitutionality undermine the purpose of S.52(1)S. 52(1)?

      • S.33S. 33 of the Charter (the "notwithstanding clause") allows non-constitutional statutes to pass with limitations, posing a further question: if there's a presumption of constitutionality, why would the legislature need to utilize S.33S. 33?

    3. Demonstrably justified reasonable limits:

      • S.1S. 1 of the Canadian Charter of Rights and Freedoms guarantees rights and freedoms "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

      • Courts have become significantly generous in their interpretation of what constitutes these "reasonable limits."

    4. The impact of the Charter on criminal justice: The Charter fundamentally influences the application and interpretation of criminal law, ensuring protection of individuals' rights within the justice system.