1. The constitutional framework of the criminal law

The criminal law, perhaps more so than any other branch of the law, raises crucial questions for rights and fundamental liberties, if only because the goal of the law is punishment, often in the form of very significant deprivations of liberty. As a result, the criminal law has come uniquely under the supervision of the courts as part of judicial review. This is true in a range of countries. In Europe, the European Court of Human Rights has added an extra layer of international supervision of rights implementation. But it is arguably particularly the case in Canada where the Charter heralded a mini-revolution for the entire criminal law, virtually no aspect of which has been unchanged since its adoption. Most notably, the Supreme Court has not only looked at criminal procedure from the point of view of the right to a fair trial, but at the extent to which certain criminalization efforts encroach on liberties and even at the substantive fairness of the criminal law in terms, for example, of the fault requirement of certain offenses (we will cover this issue much later in the course). Constitutional scrutiny of this kind can of course be controversial. On what basis should judges be allowed to strike down laws that have been adopted by the legislature? For some, this is the last protection of the minority (here, criminal defendants) against majorities tempted by 'penal populism'. But the constitutionalization of the criminal law also has its critiques, as fundamentally an anti-democratic device.

In this session, we will be interested in constitutional scrutiny of the criminal law as such. Try not to be distracted by the specifics of each case and think about the changing nature of this scrutiny. What is at stake? How far can the courts go in striking down legislation? What has changed since the adoption of the Charter? How is the Charter to be interpreted? What kind of an instrument is the Charter? What is the specificity of section 7? Is the Supreme Court turning itself into a super-legislature?

Further Readings:

• Barkow, Rachel E. “Separation of Powers and the Criminal Law.” Stanford Law Review 58 (2006 2005): 989–1054.

  • Hirschl, Ran. “The New Constitutionalism and the Judicialization of Pure Politics Worldwide.” Fordham L. Rev. 75 (2006): 721.

  • ———“The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions.” Law & Social Inquiry 25, no. 1 (2000): 91–149.

  • ———Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Harvard University Press, 2009.

  • Mandel, Michael. “A Brief History of the New Constitutionalism, or ‘How We Changed Everything so That Everything Would Remain the Same.’” Israel Law Review 32, no. 2 (1998): 250–300.

  • Wiecek, William M. The Sources of Antislavery Constitutionalism in America, 1760-1848. Cornell Univ Pr, 1977.

  • Barak, Aharon. “The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and Its Effect on Procedural and Substantive Criminal Law.” Israel Law Review 31, no. 1–3 (January 1997): 3–23.

  • Ginsburg, Tom. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge University Press, 2003.

  • Halberstam, Malvina. “Judicial Review, A Comparative Perspective: Israel, Canada, and the United States.” Cardozo L. Rev. 31 (2009): 2393.

  • Heller, Robert. “Selective Prosecution and the Federalization of Criminal Law: The Need for Meaningful Judicial Review of Prosecutorial Discretion.” University of Pennsylvania Law Review 145, no. 5 (1997): 1309–1358.

  • Hirschl, Ran. “The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions.” Law & Social Inquiry 25, no. 1 (2000): 91–149.

  • Mezey, Susan Gluck. “Civil Law and Common Law Traditions: Judicial Review and Legislative Supremacy in West Germany and Canada.” International and Comparative Law Quarterly, 1983, 689–707.

  • Reichel, Philip L. Comparative Criminal Justice Systems: A Topical Approach. Prentice Hall Upper Saddle River, NJ, 2002. https://www.ncjrs.gov/app/abstractdb/AbstractDBDetails.aspx?id=192758.

  • Schaefer, Walter V. “Federalism and State Criminal Procedure.” Harvard Law Review 70, no. 1 (1956): 1–26.