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: Paperback / softback
Length: 266 pages
Publication date: 06 December 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, after the Charter's implementation, the Supreme Court of Canada relied on criminal law theory to strike down criminal laws that violated the Charter. However, in recent years, the court has increasingly employed principles of instrumental rationality to achieve this goal.

In both cases, the court has relied on the concept of fundamental justice under section 7 of the Charter to challenge criminal laws, rather than specifically enumerated rights. This approach has raised questions about which set of rights should be employed to constitutionalize criminal law.

This book makes a compelling argument for a rights-based approach to constitutionalizing criminal law. It suggests that enumerated rights should be prioritized whenever possible, and that principles of instrumental rationality should be abandoned. Moreover, the principles of criminal law theory should only be invoked when an unjust criminal law cannot be challenged under the Charter.

By adopting a rights-based approach, the Supreme Court of Canada can ensure that criminal laws are consistent with the Charter and that the rights of individuals are protected. This approach will also contribute to the development of a more coherent and consistent criminal law system in Canada.

In conclusion, constitutionalizing criminal law in Canada requires a thorough overhaul of the way the Supreme Court of Canada has developed the relationship between criminal and constitutional law. This book provides a valuable contribution to this debate by advocating for a rights-based approach to constitutionalizing criminal law, which prioritizes enumerated rights, abandons principles of instrumental rationality, and only invokes principles of criminal law theory when necessary.

Weight: 400g
Dimension: 229 x 152 (mm)
ISBN-13: 9780774867672