For tutoring on this subject by the person who created these notes, e-mailandrew .captan @ utoronto .ca. He successfully completed all of the NCArequirements in the January, 2010 sitting [Note: Toronto and surrounding area only]. Note: Tutoring also available for Bar Exams (Barristers and Solicitors).
 SOURCES OF CRIMINAL LAW
- With exception of contempt, criminal offences are created by statute, mostly by the Criminal Code [“CC”]* SeeFrey v Fedoruk(Conduct, not otherwise criminal and not falling within any category of offences defined by the criminal law, does not become criminal because anatural and probable result thereof will be to provoke others to violent retributive action; acts likely to cause a breach of the peace are not in themselves criminal merelybecause they have this tendency. It is for Parliament and not for the Courts to decide if any course of conduct)* See CC s 9- But common law defences are available under Canadian criminal law (e.g,Levis (City) v Tetrault– below; and CC s 8)- Common law CAN determine, however, how criminal offences are interpreted (e.g.R v Jobidon)
 THE POWER TO CREATE CRIMINAL OFFENCES AND RULES OF CRIMINAL PROCEDURE
Constitutional Division of Powers
- Both the Federal Government and Provincial governments have jurisdiction to create non-criminal offences (regulatory offences), but only the Federal Government can create“criminal offences”: s 91(27) Constitution Act(b)
The Canadian Charter of Rights and Freedoms
- The Charter can be used to invalidate offences that Parliament has created, and can be used to strike down rules of criminal procedure:* See, e.g,R v Heywood
(Example of criminal offence being struck down):
The Constitutional question was whether s 179(1)(b) of the CC infringed several sectionsof the Charter, and if so, whether those infringements were justifiable under s 1.
The offence was too sweeping in relation to the objective (particularly inrelation to its geographical ambit), and therefore limits liberty beyond what is necessary for Parliament to accomplish its goal)* See, e.g.,R v Oakes
(Example of a rule of criminal procedure being struck down):
The SCC was called on to deal with the constitutionality of section 8 of theNarcotic Control Act, which provided that a person found in possession of a narcotic was presumed to be in possession for the purpose of trafficking, unless heestablished the contrary.
That section, which requires an accused to disprove on a BoP the existence of a presumed fact, violates the presumption of innocence. The law cannot be saved by s 1 of the Charter, as it does not survive the rational connection test, and therefore it is invalid)- The Charter can also be used as an important interpretative tool by allowing courts to use constitutional values to influence the way statutes are interpreted:* See, e.g,R v Labaye: The issue in this case was whether what went on in l’Orage constituted “acts of indecency”. To ground criminal responsibility for indecency, theharm must be one which society formally recognizes as incompatible with its proper functioning (autonomy, liberty, equality and human dignity are among these values)
 CLASSIFICATION OF OFFENCES