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:
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