THE CONSTITUTIONALIZATION OF THE GENERAL PART OF CRIMINAL LAW
AbstractThis article argues that in almost all its facets, the general part of criminal law is becoming constitutionalized. "Constitutionalization" refers to the process of using principles of criminal law, such as the mens rea requirement, to give content to Charter rights. Constitutionalization also refers to the converse process of adopting constitutional rights and freedoms as doctrinal principles of the general part of criminal law. In order to understand fully this phenomenon of constitutionalization, it is presented in relation to the constitutional requirements for offence definition, the constitutional nature of certain justifications, constitutional aspects of excuse, and the constitutional bases for non-exculpatory defences. In the discussion, the benefits of structuring the general part in terms of definitional elements, justifications, excuses and non-exculpatory defences are explored. In particular, this analytical structure is shown to be valuable in analyzing the constitutionality of shifting burdens of proof. Finally, some comments are offered on the significance of Constitutionalization for the process of criminal law reform presently being proposed by the Law Reform Commission of Canada in the context of the Canadian government's "Criminal Code Review".
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