Study Notes on Criminal Law and the Canadian Charter of Rights and Freedoms

Criminal Law and the Canadian Charter of Rights and Freedoms

Introduction

  • Presented by: Javier Torres, LL.B., LL.M., PhD Candidate

  • Course: CJ 2130 Criminal Law, University of Winnipeg

Constitutional Law

  • Definition: Constitutional law is the branch of public law that defines the fundamental principles according to which a state is governed.

  • Main Purpose:
      - Define and limit the powers of government.
      - Establish the framework of political institutions.
      - Safeguard the fundamental rights and freedoms of individuals.

  • Power Distribution: Sets out the distribution of power among the:
      - Executive Branch
      - Legislative Branch
      - Judicial Branch

  • Checks and Balances: Promotes a system of checks and balances to prevent the abuse of authority.

Absolute Power

  • Concept Discussion: What does absolute power look like? Potential implications on freedom and governance.

Origin of Constitutional Law

Max Weber and Legitimate Domination

  • Types of Domination:
      - Traditional Domination: Rooted in long-standing customs and practices; power is often inherited (e.g., monarchies).
      - Charismatic Domination: Based on the extraordinary personal qualities of a leader who inspires devotion and loyalty.
      - Rational-legal Domination: Grounded in established laws, rules, and procedures (Weber, 1947).

Max Weber and Constitutional Law

  • Emergence of Constitutional Law: Derives from rational-legal domination, influenced by the Enlightenment of the 18th century.

  • Political Authority Source: Ultimate political authority and law derive from “the people.”

  • Constitution's Role: An expression of the constituent power of the people to define and modify governmental structures (Roth and Wittich, 1978).

Hypothetical Scenario

  • Without Government: Imagine a world without governments, laws, or political power. What would human life be like?

Thomas Hobbes

Biography

  • Born: 1588, Westport, Malmesbury, England

  • Significant Works:
      - Leviathan published in 1651
      - Involvement in the English Civil War (1642-1651)

State of Nature

  • Hobbes’ Perspective: A state of constant conflict without a common authority leads to a permanent state of war where everyone is against everyone.

  • Consequences:
      - Insecurity in planning for the future: no farming, trade, travel, solid buildings, or social life.
      - Worst consequence: constant fear of violence; life described as solitary, poor, nasty, brutish, and short (Hobbes, 1651).

Social Contract

  • Individuals agree to relinquish their natural rights for self-preservation.

  • Authority is granted to a sovereign entity to enforce rules and maintain peace.

  • The sovereign's power is absolute, created by the consent of the governed (Hobbes, 1651).

Understanding Rights

Concept of Rights

  • Etymology of "Right":
      - Derived from Indo-European "reg" (to make straight) and Latin "regis" (law).

  • Historical Perspective: For most human history, rights were reserved for kings ("rex") who wielded divine rights.

  • Enlightenment Influence: Shift towards rights as belonging to more than just a select few (Fairlie and Sworden, 2019).

John Locke

Biography

  • Born: 1632, Somerset, England

  • Significant Work:
      - Two Treatises of Government (1689)

State of Nature

  • Locke’s View: A condition of relative peace and equality governed by natural law derived from reason.

  • Natural Rights: Individuals have inherent rights to life, liberty, and property.

  • Freedom of Action: Individuals can act freely as long as they don't infringe upon others' rights (Fairlie and Sworden, 2019).

Reasons to Leave State of Nature

  • Flaws in State of Nature: Absence of impartial authority can lead to conflicts over property and personal grievances.

  • Social Contract Formation: Individuals consent to form a government for better protection of their natural rights (Fairlie and Sworden, 2019).

Social Contract Principles

  • Creation of Government: Through the consent of those in the state of nature.

  • Principle of Limited Government: Government's primary role is to protect natural rights.

  • Legitimacy: Government’s authority is valid only while serving its protective purpose (Fairlie and Sworden, 2019).

Consent of the Governed

  • Central Concept: Government's authority is derived from the voluntary agreement of those it governs.

  • Importance of Rights: Individuals consent to form societies to secure their natural rights (Fairlie and Sworden, 2019).

Right to Overthrow Government

  • Individuals consent to a social contract where human laws must respect natural rights.

  • Legitimacy of Overthrow: If governmental laws or actions contradict natural rights or popular consent, individuals may reclaim their authority and overthrow the government (Locke, 1689).

Jean-Jacques Rousseau

General Will

  • Concept: Political power originates from the general will of the people rather than divine right or rulers’ authority.

  • Legitimacy of Government: Must reflect the collective will aimed at the common good.
    (Fairlie and Sworden, 2019).

Montesquieu

Separation of Powers

  • Term: "trias politica" (separation of powers) is coined by Montesquieu.

  • Argument: Separation of powers prevents despotism by distributing government powers (legislative, executive, judicial).

  • Checks and Balances: Developed to ensure no branch gains excessive power and abuses arise (Fairlie and Sworden, 2019).

Constitutional Principles

  • Rule of Law: Ensures everyone, including officials, is subject to the law, preventing arbitrary governance.

  • Separation of Powers: Divides government into legislative, executive, and judicial branches for checks and balances.

  • Democracy: Government authority exists by consent of the governed; citizens participate in free elections.

  • Protection of Fundamental Rights: Constitutions protect individual rights against government infringing upon freedoms (Fairlie and Sworden, 2019).

Magna Carta (1215)

Historical Context

  • Created during King John's reign, marked by military failures and heavy taxation.

  • Rebellious Barons: Dissatisfied with John’s arbitrary power, they negotiated to limit his authority, resulting in the Magna Carta.

  • Negotiation Location: Sealed at Runnymede, June 15, 1215 (Fairlie and Sworden, 2019).

Key Criminal Law Principles

  • Rule of Law: Established that the king is also subject to the law, challenging the divine right of kings.

  • Due Process: Key clause (Clause 39) ensures lawfulness in seizure, imprisonment, and rights.

  • Habeas Corpus Development: Though not mentioned, its principles contributed to later habeas corpus formulations (Fairlie and Sworden, 2019).

Historical Significance

  • Seen as the foundation of constitutional law in England, influencing documents globally (e.g., the Petition of Right, the Habeas Corpus Act).

  • Canadian Influence: Principles reflected in the Canadian Constitution and the Canadian Charter of Rights and Freedoms regarding due process and fundamental rights (Fairlie and Sworden, 2019).

Declaration of Independence (USA, 1776)

  • Key Principles:
      - All individuals have equal rights endowed by their Creator.
      - Governments are instituted among men to secure these rights, deriving power from the consent of the governed.
      - The people have the right to alter or abolish governments that threaten these ends.

Declaration of Rights of Man and the Citizen (1789)

  • Proclamations:
      1. All men are born free and equal in rights.
      2. The goal of political association is to protect natural rights: liberty, property, security, opposition to oppression.
      3. Sovereignty resides in the nation.

Universal Declaration of Human Rights (1948)

  • Article 1: All human beings are born free and equal in dignity and rights; endowed with reason and conscience.

  • Article 3: Everyone has the right to life, liberty, and security of person.

Constitutional Law in Canada

  • Foundational Document: Constitution Act, 1867 (formerly British North America Act) set up Canada's federal system and political institutions.

  • Transition to Independence: By the Constitution Act, 1982, Canada gained control over amendments and introduced the Canadian Charter of Rights and Freedoms for constitutional protection of rights (Fairlie and Sworden, 2019).

Canadian Charter of Rights and Freedoms (1982)

Legal Rights
Key Sections

  • Section 1: Reasonable Limits

  • Section 2: Fundamental Freedoms

  • Section 15: Equality Rights

  • Section 33: Notwithstanding Clause

  • Section 7: Life, Liberty, and Security of the Person

  • Section 8: Search and Seizure

  • Section 9: Detention or Imprisonment

  • Section 10: Rights Upon Arrest or Detention

  • Section 11: Rights in Criminal and Penal Matters

  • Section 12: Treatment or Punishment

  • Section 13: Self-Incrimination

  • Section 14: Interpreter

Rights Limitations

  • Section 1 of the Charter: Rights guaranteed are subject to reasonable limits prescribed by law, justifiable in a free, democratic society.

R v. Oakes (1986)

Case Background

  • Concerned the provision under the Narcotic Control Act, specific to David Oakes' arrest for possession of hashish oil.

  • Oakes argued he possessed the drugs for personal use, conflicting with the presumption of intent to traffic.

Legal Significance

  • Established the Oakes Test: a framework to assess whether a law infringing a Charter right can be justified as a reasonable limit.

  • Legal Questions: Did the reverse onus provision infringe Section 11(d) (presumption of innocence)? If so, could the infringement be justified under Section 1?

The Oakes Test

Test Overview

  1. Pressing and Substantial Objective:
       - The law must have an objective of sufficient importance to warrant infringement of a Charter right.

  2. Proportionality: If the objective is pressing, evaluate means used:
       - Rational Connection: Law must logically relate to its purpose.
       - Minimal Impairment: Must impair rights as little as possible; no less drastic means should exist.
       - Proportionality of Effects: Benefits of the law must outweigh its negative impact on the right infringed.

Case Outcome

  • The Supreme Court found that while the objective of combating drug trafficking was pressing, the reverse onus provision did not meet the proportionality test as it failed the minimal impairment requirement.

Bibliography

  • Fairlie, John, and Sworden, Philip James. Introduction to Law in Canada. Toronto: Emond Montgomery Publications, 2019.

  • Verdun-Jones, S. N. (2020). Criminal law in Canada: Cases, questions, and the code (7th ed.). Nelson Education.