CONSTITUTIONAL LAW
16 CRIMINAL LAW POWER:
LIMITS OF FEDRAL POWER
Shigenori Matsui
INTRODUCTION


s. 91(27) gave the parliament the power over
“criminal law, except the constitution of courts
of criminal jurisdiction, but including the
procedure in criminal matters’
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The province was granted the power over
“the administration of justice in the province,
including the constitution, maintenance, and
organization of provincial courts, both of civil
and of criminal jurisdiction, and including
procedure in civil matters in those courts”
under s. 92(14)
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The power to define the crimes and impose
punishment was thus granted to the federal
parliament. The parliament was also granted the
power to define criminal procedure.
However, the province was granted the power to
define the jurisdiction of the courts and try
criminal cases and the discretion to prosecute.
Moreover, the province can impose punishment
by fine, penalty or imprisonment (s. 92(15)) with
respect to their powers.
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What is the scope of the federal criminal law
power?
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To what extent could the Parliament
prescribe the crimes to be punished?
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I HISTORICAL
DEVELOPMENET
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Reference re The Board of Commerce Act
[1922]
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“It is one thing to construe the words "the criminal law…"
as enabling the Dominion Parliament to exercise
exclusive legislative power where the subject matter is
one which by its very nature belongs to the domain of
criminal jurisprudence. A general law, to take an
example, making incest a crime, belongs to this class. It
is quite another thing, first to attempt to interfere with a
class of subject committed exclusively to the Provincial
Legislature, and then to justify this by enacting ancillary
provisions, designated as new phases of Dominion
criminal law which require a title to so interfere as basis
of their application.”
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Proprietary Articles Trade Association v. A-G
Canada, [1931]
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"Criminal law" means "the criminal law in its
widest sense… It certainly is not confined to
what was criminal by the law of England or of
any Province in 1867. The power must
extend to legislation to make new crimes.
Criminal law connotes only the quality of such
acts or omissions as are prohibited under
appropriate penal provisions by authority of
the State.
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It appears to their Lordships to be of little value
to seek to confine crimes to a category of acts
which by their very nature belong to the domain
of "criminal jurisprudence"; for the domain of
criminal jurisprudence can only be ascertained
by examining what acts at any particular period
are declared by the State to be crimes, and the
only common nature they will be found to
possess is that they are prohibited by the State
and that those who commit them are punished.”
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II LIMITS ON FEDERAL
CRIMINAL LAW POWER
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Margarine Reference (Reference re Validity
of Section 5(a) of the Dairy Industry Act,
[1949]
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Rand, J, held that the provision was not
Criminal unless it served “a public purpose
which can support it as being in relation to
the criminal law.” He suggested that ‘public
peace, order, security, heath, morality: these
are the ordinary though not exclusive ends
served by the law…” The Supreme Court of
Canada held the ban on manufacture and
sale of margarine invalid because its purpose
was to give trade protection to dairy industry.
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The Privy Council agreed.
In the present case, the prohibition in s. 5 (a) is
in pith and substance a law for the protection
and encouragement of the dairy industry in
Canada. Incidentally, penalties are provided for
any breach of the prohibition, but their Lordships
are quite unable to regard this fact as sufficient
per se to make the prohibition a law “… in
relation to … the criminal law”…within the
meaning of head 27 of s. 91.
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There are several other cases which found
that the federal law could not be upheld as an
exercise of criminal law power.
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Boggs v. The Queen [1981]
“Here, the Dominion is criminalizing an action
which may have been prohibited by the province
only as a coercive measure to bring about the
operation of a provincial plan, be it taxation or
regulation.”
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R. v. Dominion Stores [1980]
“The respondent touched upon the possibility that
[the impugned law] could find its constitutional
validity in criminal law (91(27)). One need go no
further in disposing of this issue than to refer to
the words of Rand J. in Re The Validity of s. 5(a)
of the Dairy Industry Act ...”
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Labatt Brewing Co. v. Canada [1980] 1 S.C.R.
914
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The contest, however, is not in respect of this second
stage, but rather the first stage, that is the right in the
Federal Parliament and the Federal Government to
establish the standards of production and content of
this product. In any case, the first stage of the process
does not come within the criminal law reach as
traditionally described in the authorities. I can find no
basis, therefore, for this detailed regulation of the
brewing industry in the production and sale of its
product as a proper exercise of the federal authority in
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criminal law.”
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Ward v. Canada [2002]
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III BROAD SCOPE OF
CRIMINAL LAW POWER
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The Supreme Court, however, allows very
broad scope of the federal criminal law power
in general.
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RJR-MacDonald Inc. v. Canada, [1995]
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“The criminal law power is plenary in nature
and this Court has always defined its scope
broadly.... In developing a definition of the
criminal law, this Court has been careful not
to freeze the definition in time or confine it to
a fixed domain of activity.”
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“…this Court recognized that the Privy
Council's definition was too broad in that it
would allow Parliament to invade areas of
provincial legislative competence colourably
simply by legislating in the proper form… ”…it
was accepted that some legitimate public
purpose must underlie the prohibition".
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“…the crucial further question is whether the Act also
has an underlying criminal public purpose in the sense
described by Rand J. in the Margarine Reference, supra.
The question, as Rand J. framed it, is whether the
prohibition with penal consequences is directed at an
"evil" or injurious effect upon the public.
In these cases, the evil targeted by Parliament is the
detrimental health effects caused by tobacco
consumption… Quite clearly, the common thread
running throughout the three enumerated purposes ,,,is
a concern for public health and, more specifically, a
concern with protecting Canadians from the hazards of
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tobacco consumption. This is a valid concern.
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R. v. Hydro-Quebec, [1997]
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“…this Court in Oldman River, supra, made it
clear that the environment is not, as such, a
subject matter of legislation under the Constitution
Act, 1867. As it was put there, "the Constitution
Act, 1867 has not assigned the matter of
'environment' sui generis to either the provinces
or Parliament" (p. 63). Rather, it is a diffuse
subject that cuts across many different areas of
constitutional responsibility, some federal, some
provincial.
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Accordingly, it is entirely within the discretion of
Parliament to determine what evil it wishes by
penal prohibition to suppress and what threatened
interest it thereby wishes to safeguard,
The Charter apart, only one qualification has been
attached to Parliament's plenary power over
criminal law. The power cannot be employed
colourably. Like other legislative powers, it
cannot"…permit Parliament, simply by legislating
in the proper form, to colourably invade areas of
exclusively provincial legislative competence"
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The purpose of the criminal law is to underline
and protect our fundamental values. I agree
…that the stewardship of the environment is a
fundamental value of our society and that
Parliament may use its criminal law power to
underline that value. The criminal law must be
able to keep pace with and protect our emerging
values.
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Reference re Firearms Act, [2000]
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“As a general rule, legislation may be classified as
criminal law if it possesses three prerequisites: a
valid criminal law purpose backed by a prohibition
and a penalty”
The first step is to consider whether the law has a
valid criminal law purpose. … Earlier, we
concluded that the gun control law in pith and
substance is directed at public safety. This brings
it clearly within the criminal law purposes of
protecting public peace, order, security and
health.
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“The finding of a valid criminal law purpose does
not end the inquiry, however. In order to be
classified as a valid criminal law, that purpose
must be connected to a prohibition backed by a
penalty. The 1995 gun control law satisfies these
requirements.”
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R. v. Malmo-Levine [2003]
The purpose of the NCA fits within the criminal
law power, which includes the protection of
vulnerable groups.
The protection of the chronic users identified by
the trial judge, and adolescents who may not yet
have become chronic users, but who have the
potential to do so, is a valid criminal law
objective….
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The use of marihuana is therefore a proper
subject matter for the exercise of the criminal law
power. ... In light of the concurrent findings of
"harm" in the courts below, we therefore confirm
that the NCA in general, and the scheduling of
marihuana in particular, properly fall within
Parliament's legislative competence under s.
91(27) of the Constitution Act, 1867.”
IV RECONSIDERING THE LIMITS ON
FEDERAL CRIMINAL LAW POWER
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For a law to be classified as a criminal law, it
must possess three prerequisites: a valid
criminal law purpose backed by a prohibition
and a penalty ... The criminal power extends to
those laws that are designed to promote public
peace, safety, order, health or other legitimate
public purpose…. Of course Parliament cannot
use its authority improperly, e.g. colourably, to
invade areas of provincial competence.
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Comparison with the U.S.
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States have a power to enact criminal law,
whereas the Federal Congress has a power to
enact criminal law within its powers listed in the
Constitution. This forced the Congress to enact
criminal law only when it has a power to regulate
interstate commerce.
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Criminal Purpose
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Food and drugs
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Tobacco
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Environment and Natural Resources
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Abortion
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Anti-trust Laws
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Sunday Observance law
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Gun Control
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B. Punishment
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MacDonald v. Vapor Canada [1977]
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R. v. Zelensky, [1978]
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Goodyear Tire and Rubber Co. v. The Queen,
[1956]
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Ross v. Ontario [1975]
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Difference between punishment and
regulation?
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Consider Reference re Assisted Human
Reproduction Act [2008] Quebec Court of Appeal
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