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Constitutionalizing Criminal Law calls for an overhaul of the way the Supreme Court has developed the relationship between criminal and constitutional law. The court has relied heavily on its power to constitutionalize principles of “fundamental justice” under section 7 of the Charter. In so doing, it employs both principles of criminal law theory and instrumental rationality. The court less frequently invokes enumerated Charter rights when striking down criminal laws. This book persuasively argues that the court should abandon the use of instrumental rationality and constitutionalize principles of criminal law theory only when an unjust criminal law cannot be struck down using an enumerated right.

Constitutionalizing Criminal Law explains why the Supreme Court of Canada’s jurisprudence considering the constitutionality of criminal laws fails to strike a principled balance between the need to increase the coherency of the criminal law while maintaining the legitimacy of judicial review.

Constitutionalizing Criminal Law calls for an overhaul of the way the Supreme Court of Canada has developed the relationship between criminal and constitutional law. After the adoption of the Charter of Rights, the court employed principles of criminal law theory when striking down criminal laws. More recently, it has invoked principles of instrumental rationality in doing so. In both cases, the court has consistently turned to the concept of fundamental justice under section 7 of the Charter to constitutionally challenge criminal laws in place of specifically enumerated rights. The existence of multiple avenues to challenge criminal laws constitutionally raises the question: Which set of rights should the court employ? This book persuasively argues that rights decisions should be based on enumerated rights where possible, the principles of instrumental rationality abandoned, and the principles of criminal law theory invoked only when an unjust criminal law cannot otherwise be challenged under the Charter.

1 Choosing among Rights

2 Principles of Criminal Law Theory

3 Principles of Instrumental Rationality

4 Enumerated Principles of Criminal Justice

5 A Normative Approach to Constitutionalizing Criminal Law

6 Lessons from the Canadian Experience

Notes; Bibliography; Index

Shortly after the adoption of the Charter of Rights, the Supreme Court began invoking principles of criminal law theory when striking down criminal laws. More recently, it has employed principles of instrumental rationality in doing so. In both cases, the court relies on the concept of “fundamental justice” under section 7 of the Charter as opposed to invoking specifically enumerated rights when striking down criminal laws.

Constitutionalizing Criminal Law calls for an overhaul of the way the Supreme Court of Canada has developed the relationship between criminal and constitutional law. The existence of multiple avenues to constitutionally challenge criminal laws raises several questions: To what extent do the methods of review overlap, giving rise to judicial choice? What are the benefits and detriments of each approach? Do different purposes underlie each set of enumerated rights? Is it useful to preserve more than one rationale for striking down criminal laws? And what lessons can other jurisdictions draw from the Canadian experience?

This book argues that to increase the fairness and legitimacy of judicial review, the court needs to reverse course. Rights decisions should be based on enumerated rights where possible, the principles of instrumental rationality abandoned, and the principles of criminal law theory invoked only when an unjust criminal law cannot otherwise be challenged under the Charter.

CA

Colton Fehr is an assistant professor in the School of Criminology at Simon Fraser University. His scholarship has appeared in a number of journals, including the Journal of International Criminal Justice, McGill Law Journal, Queen’s Law Journal, University of British Columbia Law Review, Dalhousie Law Journal, Manitoba Law Journal, Alberta Law Review, Saskatchewan Law Review, Canadian Journal of Law and Technology, Canadian Criminal Law Review, and Criminal Law Quarterly.

This book offers a fresh and important exploration of how criminal law in Canada is now thoroughly constitutionalized and why those interested in criminal law must understand constitutional law, including all of the legal and equality rights.

Canadian criminal and constitutional law scholars and lawyers, Canadian judges, political scientists, and criminologists alike will find this work compelling, as will an international audience interested in comparative criminal and constitutional law.

Constitutionalizing Criminal Law represents one of the most sustained and well-researched criticisms of the manner in which the Supreme Court has developed and deployed its section 7 jurisprudence that I am aware of.

Catégories

Caractéristiques

    • ISBN
      9780774867665
    • Code produit
      256596
    • Éditeur
      UBC PRESS
    • Date de publication
      1 avril 2022
    • Format
      Papier

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