Constitutionalizing Criminal Law

The book "Constitutionalizing Criminal Law" argues for a reconsideration of the relationship between criminal and constitutional law in Canada, suggesting that rights decisions should be based on enumerated rights, the principles of instrumental rationality should be abandoned, and the principles of criminal law theory should be invoked only in cases where other avenues of challenge are unavailable.

Format: Hardback
Length: 234 pages
Publication date: 05 April 2022
Publisher: University of British Columbia Press

The relationship between criminal law and constitutional law in Canada has undergone significant changes since the adoption of the Charter of Rights. Initially, the Supreme Court of Canada relied on principles of criminal law theory to strike down criminal laws. However, in recent years, it has increasingly employed principles of instrumental rationality to achieve this goal. This shift has raised questions about the appropriate approach to constitutional challenges of criminal laws.

This book makes a compelling argument for a return to enumerated rights as the primary basis for rights decisions. It suggests that the principles of instrumental rationality should be abandoned, and the principles of criminal law theory should only be invoked when other avenues of challenge under the Charter are unavailable. The author argues that this approach will ensure that the court's decisions are consistent with the Charter's purpose of protecting individual rights and freedoms.

One of the key arguments made by the book is that the existence of multiple avenues to challenge criminal laws constitutionally raises the question of which set of rights should the court employ. The author argues that enumerated rights provide a clear and predictable framework for rights decisions, and that they are more likely to be consistent with the Charter's objectives. In contrast, the principles of instrumental rationality can lead to unpredictable and arbitrary outcomes, as they are based on the subjective judgments of judges and can vary depending on the circumstances of each case.

The book also criticizes the use of principles of instrumental rationality in constitutional challenges of criminal laws. It argues that these principles can lead to a disregard for the Charter's purpose of protecting individual rights and freedoms. For example, the author points out that the principles of instrumental rationality have been used to justify the legality of laws that discriminate against certain groups, such as laws that prohibit hate speech.

In conclusion, this book provides a thoughtful and persuasive analysis of the relationship between criminal law and constitutional law in Canada. It argues that enumerated rights should be the primary basis for rights decisions, and that the principles of instrumental rationality should be abandoned. The book also criticizes the use of these principles in constitutional challenges of criminal laws, and suggests that they can lead to unpredictable and arbitrary outcomes. This book will be of interest to scholars, lawyers, and policymakers interested in the intersection of criminal law and constitutional law in Canada.

Dimension: 229 x 152 (mm)
ISBN-13: 9780774867665