This paper chronicles the operation of principles of fundamental justice and the presumption of innocence in setting minimum standards for the enactment of criminal laws, positing the question: has section 7 set definable limits on the content of a valid criminal enactment? Through a review of 106 appellate decisions, the paper advocates for expanding the judiciary’s role in the substantive review of criminal law to include an assessment of its merits, claiming that the open-ended structure of section 7 does not prevent the development of minimum standards for constitutionally valid criminal laws. While the courts have not embraced Lamer J.’s invitation in the Motor Vehicle Reference to set minimum standards relating to the wrongfulness of the offence, the paper argues that the courts should maintain some control of the criminalization process. In the absence of judicial constraints on the criminalization process, the Constitution will not be an effective obstacle in preventing Parliament from eroding liberty in exchange for a false sense of security.
Young, Alan N..
"Done Nothing Wrong: Fundamental Justice and the Minimum Content of Criminal Law."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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