I think the Criminal Code should be a constitutional law because it authorizes proportionate sentences, which could plausibly include forfeiture of the right to vote or hold office. (I think that could be an eminently reasonable sentence for something like electoral fraud.) However, Charter III(4) provides that the right to vote or hold office can only be denied by constitutional law.
Edit: To be clear, I think this argument is colorable but not airtight. An alternative view is that the Court’s power to impose sentences is implicit in its sole power to conduct criminal trials — the idea that the judiciary imposes a sentence following a guilty verdict at trial is deeply ingrained in common law tradition. I think it doesn’t hurt to cover our bases, though I think one alternative formulation would be this amendment to the Charter:
I prefer the second option. I agree that, as a general law, the Criminal Code may be unconstitutional in part insofar as it authorizes the Court to impose a sentence that includes loss of the right to vote or hold office. (Query: do those two potentially unconstitutional applications mean the entire Criminal Code is unconstitutional and should be declared null and void by the High Court if asked in a legal question? Looking at you @Roavin.) That digression aside, I would prefer to fix that issue by amending the Charter rather than constitutionalizing the entire Criminal Code, which would make it more difficult for us to amend / add / remove criminal prohibitions going forward.
Does it though? One could easily make the argument that the Court’s sentencing powers only extend to the kinds of measures that would be constitutional to impose, especially since the Criminal Code doesn’t actually require the Court to impose, nor does it explicitly allow, any unconstitutional sentences.
Yes, that’s a fair counter argument. I think it’s a close call, and that is what I understood Pronoun to be saying as well. But it strikes me as sensible to proactively remove any doubt, rather than have the issue come up in a real criminal prosecution. Of course, if folks don’t believe the Court should have the power to impose these two forms of punishment, then they wouldn’t want to clarify the Court’s authority to do so. But I tend to agree with Pronoun that these could be proper punishments for electoral fraud, among other criminal violations.
I definitely agree that however the Assembly chooses to resolve the issue, either making the Criminal Code constitutional law or explicitly disallowing these kinds of sentences, it would be good for the issue to receive clarification. I just wanted to make the argument that one probably can’t assert in a conclusive way that the Criminal Code is unconstitutional because arguments can be make both for and against that.
Does anyone have further thoughts on this proposal? I would be inclined to move the Charter amendment to a vote, but it would be great to hear from more members of the Assembly before doing so.
We are now at a vote! I have put the amendment to the Charter to a vote, as that is what was most recently discussed above, if this was wrong and it was the amendment to the Criminal Code, please let me know.