The principle of legality is a cornerstone of criminal justice. Although its implications are many, the basic idea is that one should only be prosecuted for crimes that exist in law. Codification is supposed to make it clearer to everyone what the offenses are at any given time, but that implies that codes be up to date! The principle has a strong democratic component: it is not only that the criminal law should be 'in" or "part of" the law, it is also that if we are going to punish people, perhaps the greatest liberty a society can take with their fundamental rights, then at the very least the Parliament should be involved, adopting actual laws.
The principle has implications for the sources of criminal law, as well as interpretation. For example, whilst the Canadian Charter of Rights should be interpreted teleologically, offenses are to be interpreted restrictively. Reasoning by analogy, whilst generally accepted in civil matters is seen with suspicion when it comes to criminal offenses. Having said that, the courts will often be mindful of Parliamentary intention in interpreting restrictively, especially if too restrictive an interpretation will lead to manifestly unreasonable results.
The temporal element is a crucial element of the principle of legality. The key insight is that one should never be accused of having committed an offense that was not an offense at the time it is alleged one committed it. In other words, substantive criminal law can never be retrospective. The only exception is in cases where a subsequent law is actually less punitive/more liberal, in which case Parliament may provide the benefit of the new regime to past offenders.
One of the central issues is whether, all things considered, defendants had been given "fair notice" of the existence of an offense. In extreme circumstances, the Canadian Supreme Court may strike down offenses merely because they are too vague, but only once it has sought to interpret the relevant provisions. Note that, in the background, ignorance of the law is never a defense to criminal charges. What one needs to allege to argue successfully that the principle of legality was violated, is typically that one could not have known the law. Case and code based systems of criminal law may not be entirely equal in their ability to signal what the law is, but there is no doubt that even a common law system based on precedent can in theory satisfy the requirements of fair warning. Similarly, there may be an argument that a decentralized system such as international law is less good at indicating what the offenses are, although given the gravity of offenses in such cases and the fact that they overlap with domestic crimes it may be difficult for defendants to argue that what they did was not criminal.
Class preparation:
Excerpts from “A. Cassese, International criminal Law”, 3 ed., 2.3 THE PRINCIPLE OF LEGALITY
R. v. Finta, [1994] 1 S.C.R. 701
R. v. Pare, [1987] 2 S.C.R. 618
R v Levkovic 2013 SCC 25
“Peter Sankoff on the Travis Vader Verdict: Canada’s Zombie Laws Finally Bite.” National Post. Accessed September 19, 2016.
Canadian Charter of rights, sections 11 (g) and (i)
Criminal Code of Canada:
9. Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 736
(a) of an offence at common law,
ICC Statute
Article 22 of the Statute of the International Criminal Court:
Nullum crimen sine lege
1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.
2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.
3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.
Article 23
Nulla poena sine lege
A person convicted by the Court may be punished only in accordance with this Statute.
Article 24
Non-retroactivity ratione personae
1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.
2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply
Further Readings:
Haveman, Roelof. “The Principle of Legality” in Roelof Haveman, Olga Kavran & Julian Nicholls (LL M), eds, Supranational Criminal Law: A System Sui Generis (Intersentia nv, 2003), read pages 40 to 52.
Kloepfer, Stephen. “The Status of Strict Construction in Canadian Criminal Law.” Ottawa L. Rev. 15 (1983): 553.
Regina v. Rimmington, [2003] EWCA Crim 3450
Gerry Ferguson, Common Law Defences, Canadian Bar Association
Jeffries Jr, John Calvin. “Legality, vagueness, and the construction of penal statutes” (1985) Virginia Law Review 189.
Batey, Robert. “Vagueness and the Construction of Criminal Statutes-Balancing Acts” (1997) 5 Va J Soc Pol’y & L 1.
Shahabuddeen, Mohamed. “Does the Principle of Legality Stand in the Way of Progressive Development of Law?” J Int Criminal Justice 2, no. 4 (Décembre 2004): 1007–17. doi:10.1093/jicj/2.4.1007.
“The Use of Analogy in Criminal Law.” Columbia Law Review 47, no. 4 (1947): 613–29. doi:10.2307/1118053.
Allen, Francis A. “Erosion of Legality in American Criminal Justice: Some Latter-Day Adventures of the Nulla Poena Principle, The” (1987) 29 Ariz L Rev 385.
Kelman, Mark. “Interpretive construction in the substantive criminal law” (1981) Stanford Law Review 591.
Robinson, Paul H. “Fair Notice and Fair Adjudication: Two Kinds of Legality” (2005) 154:2 University of Pennsylvania Law Review 335.
Kahan, Dan M. “Lenity and Federal Common Law Crimes” (1994) 1994 The Supreme Court Review 345.
Aigler, Ralph W. “Legislation in Vague or General Terms” (1923) 21:8 Michigan Law Review 831.
AGA. “The Void-for-Vagueness Doctrine in the Supreme Court” (1960) University of Pennsylvania Law Review 67.
Quint, Peter E. “The border guard trials and the East German past-Seven arguments” (2000) 48:4 The American Journal of Comparative Law 541.
Westen, Peter. “Two rules of legality in criminal law” (2007) 26:3 Law and Philosophy 229.
Gartenstein, David W & Joseph F Warganz. “RICO’s‘ Pattern’ Requirement: Void For Vagueness?” (1990) 90:2 Columbia Law Review 489.
Adams, Kif Augustine. “What Is Just: The Rule of Law and Natural Law in the Trials of Former East German Border Guards” (1992) 29 Stan J Int’l L 271.
Geiger, Rudolf. “The German Border Guard Cases and International Human Rights” (1998) 9:3 European Journal of International Law 540.