Criminal law under the Constitution Act, 1867
Encyclopedia
In Canadian Constitutional law, the Constitution Act, 1867
provides the government with the authority to legislate on matters of criminal law
and quasi-criminal law. The primary criminal law power is granted to the federal government under section 91(27). Additional criminal law-related powers are available to the provincial governments under sections 92(14) and 92(15).
The meaning of the phrase "criminal law" was historically a matter of debate. It was first defined by the Privy Council in the Board of Commerce case as that which the "subject matter is one which by its very nature belongs to the domain of criminal jurisprudence". This definition was found to be overly narrow as it froze the definition of 91(27) to only include matters that were considered criminal during Confederation. The provision was reinterpreted in PATA v. Canada
where instead the Privy Council used a very broad definition describing it as any law containing a prohibition with penal consequences.
The modern interpretation was finally articulated in the Margarine Reference
where the Court stated that criminal law consisted of a prohibition with penal consequences and a legitimate public purpose. The Court enumerated a number of valid public purposes which included "public peace, order, security, health, morality." Other public purposes were eventually added including "environment".
Where the province enacts a regulatory scheme that contains penalty and concerns matters normally within its jurisdiction the law is typically upheld. In Bedard v. Dawson
, a provincial law that shutdown "disorderly houses" within the meaning of the Criminal Code was held to be in relation to property and civil rights. Provincial driving offences that overlapped with federal driving offences have been upheld as regulation of highway traffic.
Likewise, penal laws regulating parades in the streets and film censorship were upheld as matters of a local nature. However, regulation of activities in the street have not always been upheld. In Westendorp v. The Queen
(1983) the Court struck down a provincial law prohibiting persons remaining in the street for the purposes of prostitution as it was attempting to "control or punish prostitution".
Many provincial licensing schemes enacted under section 92(9) have contained penal provisions that have been challenged. In Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board)
(1987) a provincial licensing scheme that prevented "nude entertainment" was upheld as law "regulating entertainment" as a means to increase sales even though there was a similar Criminal Code provision concerning nude dancing.
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
provides the government with the authority to legislate on matters of criminal law
Criminal law in Canada
The criminal law of Canada is under the exclusive legislative jurisdiction of the federal government. The power to enact criminal law is derived from section 91 of the Constitution Act, 1867...
and quasi-criminal law. The primary criminal law power is granted to the federal government under section 91(27). Additional criminal law-related powers are available to the provincial governments under sections 92(14) and 92(15).
Criminal law power
Section 91(27) extends exclusive legislative authority to the Parliament in matters of "Criminal Law, except the Constitution of Court of Criminal jurisdiction, but including the Procedure in Criminal Matters." This federal power is by and large the broadest of the enumerated powers allocated to the federal government.The meaning of the phrase "criminal law" was historically a matter of debate. It was first defined by the Privy Council in the Board of Commerce case as that which the "subject matter is one which by its very nature belongs to the domain of criminal jurisprudence". This definition was found to be overly narrow as it froze the definition of 91(27) to only include matters that were considered criminal during Confederation. The provision was reinterpreted in PATA v. Canada
Proprietary Articles Trade Association v. Attorney General of Canada
Proprietary Articles Trade Association v. Attorney General of Canada, [1931] A.C. 310 is a famous Canadian constitutional decision of the Judicial Committee of the Privy Council on the Constitution's criminal law power under section 91....
where instead the Privy Council used a very broad definition describing it as any law containing a prohibition with penal consequences.
The modern interpretation was finally articulated in the Margarine Reference
Margarine Reference
Reference re Validity of Section 5 of the Dairy Industry Act , also known as the Margarine Reference or as Can. Federation of Agriculture v. A.-G. Que., is a leading opinion of the Supreme Court of Canada on determining if a law is within the authority of the federal government under the...
where the Court stated that criminal law consisted of a prohibition with penal consequences and a legitimate public purpose. The Court enumerated a number of valid public purposes which included "public peace, order, security, health, morality." Other public purposes were eventually added including "environment".
Provincial regulatory powers
The provinces retains some power over criminal law through a number of constitutional provisions. Under section 92(15) the provinces are able to impose "Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated" within section 92. This means that a province can attach criminal penalties to valid provincial laws. Consequently, there is frequently debate over whether a provincial law is intruding upon the federal criminal law power.Where the province enacts a regulatory scheme that contains penalty and concerns matters normally within its jurisdiction the law is typically upheld. In Bedard v. Dawson
Bedard v. Dawson
Bedard v. Dawson, [1923] S.C.R. 681 is a leading constitutional decision of the Supreme Court of Canada. The Court held that the provinces could legislate in matters related to the prevention of crime even though the federal government had exclusive power over criminal law.The law was passed by the...
, a provincial law that shutdown "disorderly houses" within the meaning of the Criminal Code was held to be in relation to property and civil rights. Provincial driving offences that overlapped with federal driving offences have been upheld as regulation of highway traffic.
Likewise, penal laws regulating parades in the streets and film censorship were upheld as matters of a local nature. However, regulation of activities in the street have not always been upheld. In Westendorp v. The Queen
Westendorp v. The Queen
Westendorp v. The Queen, [1983] 1 S.C.R. 43 was a decision of the Supreme Court of Canada on the Constitution's criminal law power. A unanimous Court found that a municipal-by law, which prohibited standing in the street for the purpose of prostitution, was struck down as ultra vires of the...
(1983) the Court struck down a provincial law prohibiting persons remaining in the street for the purposes of prostitution as it was attempting to "control or punish prostitution".
Many provincial licensing schemes enacted under section 92(9) have contained penal provisions that have been challenged. In Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board)
Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board)
Rio Hotel Ltd. v. New Brunswick [1987] 2 S.C.R. 59 is a leading Supreme Court of Canada decision on the Constitution's criminal law power...
(1987) a provincial licensing scheme that prevented "nude entertainment" was upheld as law "regulating entertainment" as a means to increase sales even though there was a similar Criminal Code provision concerning nude dancing.