Section 27(1) - No retrospective criminal laws

A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.

A person has the right not to be prosecuted or punished for acts or omissions that were not criminal offences at the time they were committed. This flows from the general principle that a person must be able to predict any criminal culpability that attaches to his or her actions. Thus, the conduct of an accused is to be judged by the law at the time that he or she acted or failed to act. The criminal law should not apply retrospectively.

Section 27(1) requires the criminal law to be sufficiently accessible and precise to enable a person to know in advance whether his or her conduct is criminal.288

 

Scope of section 27(1)

The protection from the operation of retrospective criminal laws applies only to protection from the instigation of criminal proceedings which might result in a conviction or the imposition of a criminal penalty.

The right does not extend to prevent retrospective changes to procedures that do not form part of the penalty or punishment of an offender, or to changes in procedural law (for example, shifts in trial practice or changes to the rules of evidence). However, changes to criminal law procedure may infringe this right where they affect the basic elements of a fair trial.

When considering s. 27(1), you should also refer to the discussion on s. 27(4) of these Charter Guidelines. Section 27(4) expressly limits the rights in s. 27(1), s. 27(2) and s. 27(3) by providing that they do not affect ‘the trial or punishment of any person for any act or omission which was a criminal offence under international law at the time it was done or omitted to be done.’

 

Footnotes

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288 Handyside v. UK (1976) 24 Eur Court HR (ser A); (1979–80) 1 EHRR 737; Kokkinakis v. Greece (1993) 260-A Eur Court HR (ser A); (1994) 17 EHRR 397.