Find the common meaning looking at grammatical construction, legislative scheme and parliament
If no common meaning less ambiguous meaning is preferred
If both are ambiguous apply strict construction
R v Mac
R v Pare / R v Mac
If still ambiguous apply doctrine of strict construction
The Limits of Criminal Law
Federalism
For a law to be determined as a criminal law it needs a (1) valid criminal purpose bacekd by a (2) penalty and (3) prohibition.
Reference re: Firearms
Criminal Acts do not have be immoral, gun control has a valid criminal purpose (public safety)
Harm Principle
Ouimet Report
Law Reform Commission of Canada
Criminal Law is a Blunt and Costly Weapon
Malmo-Levine
The harm principle is not a manageable standard against which to measure deprivation of life, liberty or security of the person. The harm principle is not a fundamental principle of justice. For a rule to constitute a principle of fundamental justice for the purpose of s7 it must be a legal principle and there must be a societal consensus that is fundamental to the way in which the legal system ought to fairly operate.
R v Labaye & R v Kouri
“For behaviour to be indecent it needs activity that has an established harm or significant risk of harm to others grounded in the norms which our society has formally recognized in the Charter or other similar fundamental laws… and the degree of harm needs to be incompatible with the proper functioning of society.”
While the “harm principle” is not a “principle of fundamental justice” this (non-charter) case may reflect a limited reintroduction of the “Harms Principle” in spite of the decision in Malmo-Levine. Harm is a significant but not determinative factor to consider in establishing an applicable level of tolerance.
Charter and the Rule of Law: Vagueness, Overbreadth, Arbitrariness, Gross Disproportionality
Oakes
1. Prescribed by law -- The rights infringement must be ‘prescribed by law’;
2. Pressing and substantial purpose -- The infringement must have a pressing and substantial purpose (in the context of a free and democratic society);
3. Rational connection -- There must be a rational connection between the means chosen to achieve the purpose, and the pressing and substantial purpose (not arbitrary or based on irrational considerations);
4. Minimal impairment – Rationally connected means should impair ‘as little as possible’ the right in question;
5. Proportionality – There must be proportionality between the effects of the measures which are responsible limiting the Charter right, and the objective which has been identified as being of sufficient importance.
The onus is on the party seeking to uphold the limitation to prove that it satisfies the test.
Canadian Foundation for Children v Canada
Ratio: A law is unconstitutionally vague if it (1) ‘does not provide an adequate basis for legal debate’ and ‘analysis’; (2) ‘does not sufficiently delineate any area of risk; or (3) ‘is not intelligible’. (4) The law must offer a grasp to the judiciary but certainty is not required. (Nova Scotia Pharmaceuticals)
The words of the statute must be considered in context, in their grammatical and ordinary sense, and with a view to the legislative scheme's purpose and the intention of Parliament.
R v Heywood
A law will be held to be overbroad when its means are too sweeping in relation to its objective and where it greatly infringes on rights.
“Overbreadth and vagueness are related in that both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective.”
“In the case of vagueness, the means are not clearly defined. In the case of overbreadth the means are too sweeping in relation to the objective. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.”
Introduction to the Criminal Process
The Presumption of Innocence
Woolmington v DPP
An accused is always presumed innocent until proven guilty by the Crown beyond a reasonable doubt. An accused may provide his evidence to raise such a reasonable doubt however, this does not mean that there is any shift in the evidentiary burden. (Exception: the onus shifts to the accused to prove his defense of insanity since it would be too heavy a burden for the prosecution to prove to the contrary)
The Requirements of Proof Beyond a Reasonable Doubt
R v Lifchus
Proof beyond a reasonable doubt has a specific meaning in a legal context. It is based on reason and logic rather than moral certainty. It is less than absolute certainty, but more than probability.
Criminal Code s.681(1)(b)(iii)
On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal may dismiss the appeal where notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) [ie. error in law] the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;
Justifiable Reverse Onuses?
R v Oakes
Reverse onuses violate section 11(d) of the Charter (the presumption of innocence).
R v Downey
In general, presumption of innocence is infringed whenever the accused is liable to be convicted in spite of the existence of a reasonable doubt (which may very well occur from reverse onus). If a provision requires an accused to establish (prove or disprove) either an element of an offence or an excuse then it contravenes section 11(d) of the Charter but it may be saved (as it was in this case) under section 1.
However, the statutory presumption will infringe s.11(d) if it requires the trier of fact to convict in spit of a reasonable doubt. (MORE)