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’ 2

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) 3

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. 4

What is the scope of the federal criminal law power? To what extent could the Parliament prescribe the crimes to be punished? 5

I HISTORICAL DEVELOPMENET Reference re The Board of Commerce Act [1922] 6

“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.” 7

Proprietary Articles Trade Association v. A-G Canada, [1931] 8

"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 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. 9

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.” 10

II LIMITS ON FEDERAL CRIMINAL LAW POWER Margarine Reference (Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] 11

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. 12

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

There are several other cases which found that the federal law could not be upheld as an exercise of criminal law power. 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.” 14

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...” 15

Labatt Brewing Co. v. Canada [1980] 1 S.C.R. 914 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 criminal law.” 16

Ward v. Canada [2002] 17

III BROAD SCOPE OF CRIMINAL LAW POWER The Supreme Court, however, allows very broad scope of the federal criminal law power in general. RJR-MacDonald Inc. v. Canada, [1995] 18

“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.” 19

“…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". 20

“…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 tobacco consumption. This is a valid concern. 21

R. v. Hydro-Quebec, [1997] 22

“…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, 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.

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"

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.

Reference re Firearms Act, [2000] 26

“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.

“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.”

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….

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 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. 31

Comparison with the U.S. 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. 32

Criminal Purpose Food and drugs

Tobacco

Environment and Natural Resources

Abortion

Anti-trust Laws

Sunday Observance law

Gun Control

B. Punishment MacDonald v. Vapor Canada [1977] R. v. Zelensky, [1978] 40

Goodyear Tire and Rubber Co. v. The Queen, [1956] Ross v. Ontario [1975]

Difference between punishment and regulation? Consider Reference re Assisted Human Reproduction Act [2008] Quebec Court of Appeal 42