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Introduction

The "general part of the criminal law" (as opposed to "special part"): phrase that became current in the 1950s.

In broad terms, to say that this course is about the general part of the criminal law is to say that it's about principles that cut across most of the criminal law.

Supreme source of criminal law is the Constitution: until 17 April 1982, this meant that the power to create criminal law was reserved to the exclusive jurisdiction of the Parliament of Canada, 91(27).

What does it mean to say that a matter is properly criminal, that it lies within the jurisdiction of Parliament?

Supreme Court and Privy Council tried to determine what was appropriately deemed a matter of criminal law.

We've reached a point where virtually any prohibition is deemed to be a valid criminal law provision.

Important: there is a difference between criminal law in its strict sense and "penal law". "Penal law" can describe any form of statutory prohibition that entails a sanction.

Under our theory of constitutional law it permissible for provinces to enact penal offence for the purpose of enforcing legislation that is otherwise within provincial jurisdiction.

Criminal law refers exclusively to provisions enacted by the Parliament of Canada by virtue of its power under 91(27).

The division of powers is only one part, but since 1982, the Charter is also an important constitutional source of criminal law.

In this course, we're only likely to touch upon s. 7 of the Charter at length.

S. 7 talks about the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

When s. 7 was first considered by the courts, the Government of Canada argued that this was concerned with procedural due process.

In 1985, SCC in Motor Vehicle Reference decided a number of things that profoundly affected our view of the criminal law:

o

Most important is that s. 7 is not restricted to matters of procedural due process.

o

Thus courts can use s. 7 to review the substantive criminal law.

o

Conclusion in this reference: for offences of absolute liability (no requirement for proof of fault), it is impossible for federal and provincial legislator to impose a prison term as a sanction.

o

This had momentous consequences: there was a succession of challenges to laws arguing that there was something discordant between the law and the offence.

So, when talking about Constitution, the two important points are:

1.

Valid criminal law can only be derived from federal legislation enacted using s. 91(27) power.

2.

Section 7 provides a basis for substantive review of Canadian Criminal Law.

Criminal Code is not the only STATUTORY source of criminal law.

Judicial decisions are also a source.

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