Canadian Criminal Law Principles and Charter Rights

Posted on Apr 30, 2026 in Law

The Principle of Legality: Frey v. Fedoruk

Facts: In the case of Frey v. Fedoruk, the court addressed what is considered a criminal offence. Frey was caught “peeping” into Fedoruk’s house at night. Fedoruk caught Frey as he was trying to enter his truck and, threatening him with a knife, took him back to the house where he called the police and “detained” Frey until they arrived. “Peeping” was not an offence in the Criminal Code; instead, Frey was charged with unlawfully acting in a manner likely to cause a breach of the peace by peeping at night through the window.

The court held that Frey committed no criminal offence because peeping was not prohibited by statute. Consequently, Fedoruk had no lawful authority to detain him, which constituted false imprisonment. Principles: A person cannot be convicted unless the conduct is prohibited by criminal statute. Judges cannot create new criminal offences based on suspicious behaviour; these are defined only by Parliament. A private citizen can only arrest when an actual crime is being committed.

Codification and Legislative Authority

Section 9: Codification reflects the principle of fixed, defined, and ascertainable law; laws are not applied retroactively. Who enacts the law? The Constitution Act, 1867 divides legislative authority between the federal Parliament and provincial legislatures, governing the relationship between different orders of government.

Federal Legislation (s. 91(27)): Criminal law, except the constitution of courts of criminal jurisdiction, but including procedure in criminal matters.
Provincial Legislation (s. 92): Section 92(13) covers property and civil rights in the province; Section 92(14) covers the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and criminal jurisdiction.

Parliament has the power to legislate in relation to criminal law but cannot treat matters that fall under provincial jurisdiction as criminal. This is often referred to as a “turf war.”

Defining Valid Criminal Law: The Margarine Reference

In the Margarine Reference, Parliament passed the Dairy Industry Act, making it an offence to make, import, or sell margarine in Canada, with fines and possible jail time. Provincial and federal governments have the power to “refer” legislation to the Supreme Court of Canada. The court held the law was ultra vires Parliament because its true purpose was the economic protection of the dairy industry, not a criminal public purpose.

Principle: To be a valid criminal law, legislation must contain: (1) a valid public purpose, (2) a prohibition, and (3) a penalty. Valid Criminal Law Purposes include promoting public peace, safety, health, order, morality, and the protection of vulnerable groups. Without a valid criminal law purpose, a law will not be within Parliament’s legislative authority.

Constitutional Limits and Offence Classifications

There are two constitutional questions to consider: (1) Is the law within Parliament’s legislative authority? If no, it is unconstitutional. If yes, proceed to question (2): Is the law consistent with the Charter? If it violates the Charter, can it be saved under Section 1?

Criminal Offences:

Summary: Least serious; maximum penalty is a fine of $5,000, two years less a day in jail, or both.
Hybrid: Covers a wide range of conduct (e.g., assault, sexual assault). The Crown elects to proceed summarily or by indictment. The majority of offences are hybrid.
Indictable: Most serious, such as murder; the maximum penalty is life in prison.

The Role of Judges: Judges interpret existing offences and non-codified defences. They act as “guardians” of the law, deciding whether criminal law is within Parliament’s authority and whether laws comply with the Charter of Rights and Freedoms. If a law is unconstitutional (either ultra vires or an unjustified breach), they strike it down. They are bound by the principle of Stare Decisis (“to stand by which is decided”) and by precedent. Decisions from a higher court are binding, while decisions from a court at the same level are persuasive.

The Canadian Charter of Rights and Freedoms

Part of the Constitution Act, 1982, the Charter limits Parliament’s authority and guarantees fundamental rights to everyone. Parliament cannot enact criminal law that unjustifiably violates these rights unless the Notwithstanding Clause (Section 33) is used. The Charter structures the relationship between the state and individuals.

Section 52: The Constitution is the supreme law; any law that is inconsistent has no force and effect.
Section 33: Allows a law to operate even if it violates certain Charter rights (Sections 7-15), but not democratic rights (Sections 3-5). This declaration can last a maximum of five years.
Sections 8-14: Guarantee procedural rights that limit state action in investigating, prosecuting, and punishing criminal offences.
Section 10 (on arrest/detention): The right to be informed promptly of reasons, to retain and instruct counsel without delay, and to challenge the validity of detention via habeas corpus.
Section 11 (when charged): The right to be informed of the charge, to be tried within a reasonable time, the presumption of innocence, the right to bail, and protection against double jeopardy.
Section 12: Protection against unusual or harsh punishment.
Section 15(1): Everyone is equal before the law; laws cannot target specific groups.

Principles of Fundamental Justice under Section 7

Section 7 states that everyone has 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 (PFJ). To be a PFJ, a proposition must be a legal principle, have a consensus that it is fundamental to a fair legal system, and be identified with sufficient precision.

Violations of Section 7 include breaches of solicitor-client privilege, the right to silence, and the right to make a full answer and defence (including disclosure of all relevant evidence). Laws must not be:

Vague: Vague laws do not provide sufficient notice to citizens or police (e.g., R. v. Levkovic).
Arbitrary: There is no direct connection between the purpose and the effect (e.g., Morgentaler regarding health delays, or Chaoulli regarding private insurance).
Overbroad: The law is so wide that its effects bear no relationship to its purpose in some cases (e.g., Heywood regarding park restrictions).
Grossly Disproportionate: The effects are totally out of sync with the objectives (e.g., life imprisonment for spitting).

The Oakes Test and Justifying Charter Breaches

Charter rights are not absolute. Under Section 1, a law that violates a right can be justified as a reasonable limit in a free and democratic society. The state bears the burden of proof on a balance of probabilities using the Oakes Test:

Pressing and Substantial Objective.
Rational Connection.
Minimal Impairment.
Proportionality of Effects.

In R. v. Oakes, a reverse onus clause for drug trafficking was struck down because there was no rational connection between mere possession and the intent to traffic. In R. v. Butler, obscenity laws were upheld because the objective of preventing social harm outweighed the limit on expression.

Actus Reus: The Physical Elements of a Crime

An act does not make a person guilty unless the mind is also guilty (Actus non facit nisi mens sit rea). Actus reus includes: (1) voluntary conduct, (2) circumstances, and (3) consequences. Technical requirements include age restrictions (no conviction under age 12) and territorial restrictions (offences must generally be committed in Canada, with specific exceptions for treason, war crimes, and sexual offences against children).

Case Studies in Actus Reus

R. v. Chase: Defined sexual assault as an assault committed within circumstances of a sexual nature such that the sexual integrity of the victim is violated.
R. v. Toews: Defined “care and control” of a vehicle as assuming control in a way that creates a realistic risk of putting the vehicle in motion.
R. v. Peterson: Established that a caregiver who assumes control over a vulnerable person owes a criminal duty to provide the necessities of life; failure to do so constitutes a criminal omission.
R. v. King: Confirmed that there can be no actus reus unless the act is the result of a willing mind at liberty to make a definite choice or decision.