Act 1867: Criminal law, Division of Powers

- Distribution of Legislative Poweres

o Parliamentary power:
 https://laws-lois.justice.gc.ca/eng/const/page-3.html#docCont

- Section 7 of Charter: Life, Liberty, and Security of the Person

o All individuals have rights listed above
 Principle of fundamental justice:
 Must be following:
o 1. Legal principle
o 2. Consensus about how legal system should work
o 3. Can be formulated/applied precisely
 Must conform to the Principles of Justice:
 Impartiality
 Rule of Law
 Equality
 Fairness
 Right to presumption of innocence (principle against self incrimination)
 Note: look up development of these issues similar to public law
o 2 Step analysis of section 7 (required)
 1. Is there deprivation of one of the 3 rights listed?
 2. Is the deprivation in accordance with the principles of fundamental justice
 2 additional steps:
o Identification of Relevant Principle
o Is the deprivation in accordance with the principles of fundamental
justice
 Stages of interpretation:
 a) is there real/imminent danger?
 b) identification of relevant principles of fundamental justice
 c) has deprivation occurred ocurred in accordance with the relevant principle(s)
 Breach noted:
o Consideration is based on Section 1 (is case with all sections of charter)
 Breach of section 7 avoided via section 1 only applies to
exceptional circumstances
 Presumption of innocence (principle against self
incrimination)
 Based on power dynamic between
government/person
 Note: There is no independent right to fundamental justice
 Note 2: Analysis must be contextual
o Constraints of Section 7
 Application of section 7 requires, for violation to occur, that the action be voluntary
 General access to legal services is not a Rule of Law (Note: research
 o Exception: right to counsel as part of procedural fairness can be argued
when security of person/freedom is at issue
 When a corporation is a defendant, it can defend itself that the charging statute
is in violation of section 7
 Right to silence: freedom is part of the right or rejection in speaking to
authorities (deception in securing inculpatory statement is against section 7)
 Disclosure of information:
o Crown must disclose unless irrelevant (relevance may be construed as
right to knowledgeably defend oneself)
o Defendant must require disclosure in showing material affected defence
 Right to protection of Crown or 3rd parties is constitutional right (section 24(1)
remedy sought if infringement)
o Section 24(1): appeal to the court
 Absolute liability offences
o Section 7 may defeat absolute liability
o Absolute liability will, however, fall prey to section 7
 Diversity right violation
- Note: westlaw website, discrepancy in wording
o Section 7 interepretations:
 Diversity of interests may be protected
 Defendant
o Full defense, fair proceedings, access to evidence, witness’s face
 Society

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 Self harm not applicable (sanctity of person)
o Harm of any kind, if/when justified, must be based on public good
 Constraints based on the common good, nor can constraints limitlessly restrict
 When interpreting section 7, protection is a relevant interest
 Liberty interest violation:
 Compulsion/restriction of fundamental life choices (right to conception)
 Procedural fairness:
 Factors of relevance:
o Nature of the rights
o Severity of the consequences to the individual
o I1nterpretation here must be relevant to the context
- Principle of Fundamental Justice Criteria
o Must be legal principle that provides content for S7 guarnatee, while avoiding public policy
adjudication
o Societal consensus of need
o Priniple must be precisely applied
o Note: application to judge’s ruling, e.g. is using a judge’s ruling to establish a principle of
fundamental justice, and therefore, a process implicitly requiring judges to consider implications
of rulings if used in s7 or other charter matters?
- 3 principles of crime creating provision are challenged in section 7 (required in constitutional evaluation)
o Overbreadth
o Gross disproportionality
o Arbitrariness
o Note: deprivation of liberty must be done in accordance with priniples of justice
o Note: Cross examination of adverse witness is a right according to constitution
o Note: Charter violations may be applicable if applied beyond geographic borders (e.g. evidence
obtained overseas may be privy to charter analysis
o Note: evidence/information related to obtainment of evidence in foreign jurisdiction must be
applicable to Canadian law in order to apply to Charter
 Corollary: if obtained under foreign law, the application of charter violations does not
occur
o Note: jury secrecy, ability to deliberate, e.g. jury integrity, must be preserved
- Common Law
o POFJ Reflect/accommodate nature of common law doctrine of abuse of powers
o Common law doctrine usually focuses on judicial system
 Charter focus has traditionally been on individual
- Trials:
o 3rd trial not necessarily fundabuse of process
o Stay of proceedings only occurs in clearest cases
 When abuse of process: examine facts of case to determine violation
 A stay of proceeding is a remedy of last resort
- Parole:
o Liberty violation in terms of extending parole ineligibility may be avoided under section 7
 Only question is limitation of protection
 Limitation must be further analyzed for consistency with principles of fundamental
justice
 Matter must be significant enough to warrant constitutional protection
 Otherwise, risk is trivilation section 7; inherently also charter
- Note:
o Section 7 has a broader implication than criminal mattesr

o Similar Provisions:
 Section 1(a) of Canadian Bill of Rights
 Articles 6/9 of International Covenant of Civil/Political Rights
 Article 6/37 of Human Rights of Child
 Article 14/17 of Convention on Rights of Persons with Disabilities
 Article 1 of American Declaration of Rights/Duties of Man
o
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