1. Public Law I: Criminal Law Bedard v. Dawson Proprietary Articles Trade Assoc ref. (1931) Margarine Reference Case Westendorp v. The Queen R.J.R. –MacDonald Inc. V. Canada (1995) R. v. Hydro-Québec (1997)

2. Bedard v. Dawson (1923) In early 1900s, Quebec gov’t passed legislation prohibiting any property (home, apartment, or other building) from being used for disorderly purposes. A conviction for prostitution or gambling under the criminal code, if the prostitution or gambling occurred in that building, was proof that the building was being used for disorderly purposes. If the prohibited use continued, then any person could apply for an injunction to stop the building from being so used, and if it continued to be so used, the building could be locked up by the authorities.

3. Bedard vs. Dawson (cont’d) Bedard objected to an injunction – claimed that the Quebec legislation was really criminal legislation under 91(27) Dawson: the Quebec legislation is valid under 92(13). Supreme Court of Canada: 5-0 seriatim decision: the Quebec legislation is valid as a regulation of property and civil rights. The mischief is having a disorderly house in one’s neighbourhood. The remedy is to prohibit such establishments. The feds can’t regulate property in this way.

4. Proprietary Articles Trade Assoc ref. (1931) Impugned: federal anti- combines legislation (akin to Bd of Commerce case) Lord Atkin for JCPC Intra vires under fed. Criminal power (91[27]) Test: penal consequences: a very broad test for what constitutes valid criminal law.

5. Margarine Reference Case (1949) Fed gov’t had passed law prohibiting the importation, production and selling of margarine (legislation ultimately aimed to protect the established dairy industry in Canada) Law referred to SCC. Majority found law to be ultra vires of the federal gov’t because it was deemed to be about regulating property (hence provincial)—ban on importation up held as a valid exercise of fed. trade and commerce power. In the process of reaching decision, J. Rand of SCC undertook to define more clearly what counted as valid federal criminal law power.

6. Margarine Reference Case cont. Rand set out two conditions that law must meet to be considered valid criminal law: –the law must be a prohibition with a penal sanction; and –the law must be directed towards a public purpose. Problem with the definition of public purpose—what does it mean? Rand attempted to give some content to this phrase by indicating that it included such topics as: public peace, order, security, health, morality. Still the very generality of these topics means that there is always the possibility that fed. gov’t will use its criminal law power in colourable fashion to invade provincial jurisdiction. In Margarine Ref. SCC was alert to this problem and ruled that the fed. Govt had not established a genuine public purpose in prohibiting sale of margarine.

7. Westendorp v. The Queen (1983) In 1974, the City of Calgary passed a by-law to control use of streets and sidewalks (vendors, walking on sidewalks, clearing streets, parades, etc.) It had the authority to enact this secondary legislation because of the primary legislation: The Municipal Government Act [Alberta]. In 1981, Calgary amended the by-law to add s. 6.1, which prohibited anyone from approaching anyone on a city street or sidewalk “for the purpose of prostitution.” Lenore Westendorp was charged under the by-law, and pleaded not guilty on the grounds that the by-law was ultra vires provincial powers.

8. Westendorp (continued) Westendorp was acquitted at trial in the Provincial Court; judge found s. 6.1 of the by- law ultra vires. Crown appealed; AB Ct of Appeal found the by-law intra vires. AB Ct Ap decision by Roger Kerans: pith and substance of by-law is to control a nuisance, not to prohibit prostitution. Prostitutes can still operate elsewhere, off the streets. Appeal by Westendorp to Supreme Court of Canada. 9 judge panel; decision written by Chief Justice Laskin. Laskin: Kerans is wrong. The by-law regulates public morality, so it is a criminal law. It is colourable, because it is dressed up to look like a simple regulation of the use of streets. Kerans’ reasoning is “baffling.” Charter issue: not relevant because the by-law is ultra vires the province and therefore the City.

9. R.J.R. –MacDonald Inc. V. Canada (1995) Fed. Govt passed Tobacco Products Control Act contained extensive prohibitions on the advertisement and promotion of tobacco products and required all such products to have prominent warning labels mentioning health hazards associated with smoking. Sale of tobacco products was not, however, prohibited. Cigarette companies challenged legislation in court on both federalism and Charter grounds. Their Charter argument was that the leg. violated their freedom of expression. Federalism argument was that the legislation was not a valid exercise of federal criminal law power but instead was a matter of property and civil rights and therefore ultra vires the federal govt’s jurisdiction.

10. R.J.R. –MacDonald Inc. V. Canada cont. Tobacco companies lost the criminal law argument (but won the Charter argument.) Majority of Court (La Forest) argued that the law created prohibitions with penalties, and accepted that it was aimed at a public purpose (protecting health). In reaching this decision La Forest redefined the idea of public purpose underlying criminal law as had been sketched out by J. Rand in Margarine Reference. According to La Forest, a criminal law is validly enacted if it is directed at “an evil or injurious effect upon the public”. La Forest’s definition of the purpose of criminal law remains very open-ended.

11. R.J.R. –MacDonald Inc. V. Canada cont. Minority dissenters pointed out that it was strange to criminalize the advertising and promotion of a product (tobacco) while not prohibiting its sale. This latter fact suggested to the dissenters that the prohibitions in the Tobacco Products Control Act lacked the a typically criminal public purpose. Dissenters also pointed out that the fact that the Tobacco Products Control Act contained broad exemptions for certain types of tobacco promotions meant that the law was in essence regulatory rather than a truly criminal law.

12. R. v. Hydro-Québec (1997) In 1990, Hydro-Quebec was charged with polluting rivers with PCBs in violation of the regulations under the Canadian Environmental Protection Act. Hydro-Québec argued that the Act & the related regulations were ultra vires of the federal government as the subject of the Act did not fall under any of the powers listed in section 91. The Quebec Court of Appeal found in favour of Hydro-Québec and struck down the Act. In 1995 in a five to four decision, the Supreme Court overturned the ruling of the Court of Appeal and upheld the Act. La Forest, for the majority, concluded that "environment" was not a distinct subject matter that could be allocated to either the province or the federal government, rather, it is a subject that can be divided among the two governments.

13. R. v. Hydro-Québec continued Is the federal law a valid exercise of criminal law power or is it a regulatory scheme (in which case it falls to the provinces.) Laforest found that the dominant feature of the Act was the "[protection] of the environment and human life and health from any and all harmful substances by regulating these substances." He asked whether the law has a "legitimate public purpose" that underlies the prohibition characteristic of criminal law. He concludes that protection of the environment constituted such a legitimate purpose. Hence a valid exercise of the federal criminal law power.

14. R. v. Hydro-Québec continued A dissenting opinion was written by Chief Justice Lamer and was joined by Justices Sopinka, Iacobucci, and Major. Lamer considered the conclusions of La Forest. He agreed that the protection of the environment, in the guise of health protection, was a valid criminal law purpose, however, he disagreed that the Act was for the purpose of protecting the environment. Lamer stated that the purpose of the Act was to regulate environmental pollution. He points to several provisions that suggest the Act is regulatory in nature. Sections 34 and 35, he notes, attempts to regulate environment and do not establish any prohibition that characterizes criminal law. The Act allows the Minister of the Environment discretion to prohibit certain substances from time to time, which Lamer finds to be a very odd way of enacting criminal law. As well, the provinces can be exempt from the Act if they have regulated their own similar law, even though provinces cannot enact criminal law.