Criminal Law

• Author: Patrick J. Monahan/Byron Shaw/Padraic Ryan
• Pages: 348-374

348

CH AP TER 11

CR IMIN A L L AW

A. INTRODUCTION

The drafters of the Constitution Act, 18671 divided responsibility for

crimina l justice between the federal and provincial levels of gov-

ernment. Under section 91(27), Parliament was given the exclusive

legislative authority over crim inal law and procedure.2 However, the

enforcement of the criminal l aw was allocated to the provinces pursu-

ant to section 92(14), which provides that the provinces h ave exclusive

power in relation to the “Administration of Justice in the Prov ince.”

The phrase “administr ation of justice in the province” has been inter-

preted as including the establi shment and maintenance of police forces,

the power to lay charges, and the r ight to prosecute offences. Criminal

prosecutions are also conducted in court s established and mainta ined

by the provinces. Thus, while Parliament def‌ine s the substantive crim-

inal law, administration and enforcement is under provincial control,

making for a balance bet ween the federal and provincial levels of gov-

ernment in the cri minal justice system.

1 The Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3.

2 The Canadia n constitution differs from t hat of both Australia an d the United

States, where cr iminal law is the re sponsibility of the state gove rnments.

Criminal Law 349

B. FEDERAL CRIMINAL LAW POWER

As LeBel and Deschamps JJ. stated in Reference re Assisted Human Re-

production Act,3 “[d]ef‌ining the limits of the federal criminal law power

has always been a di ff‌icult task.”4 Early cases est ablished a narrow and

static test. In Reference Re Board of Commerce Act, 1919 (Can.),5 the Privy

Council held that the subject matter of a federal law must by its ver y

nature belong to the “domain of criminal jurisprudence.” However,

in Reference Re The Combines Investigation Act (Can.) s. 36,6 the Privy

Council rejected this static and formalistic test. Lord Atki n observed

that “the domain of criminal jurisprudence ca n only be ascertained by

examining what acts at any particular per iod are declared by the State

to be crimes.”7 Lord Atkin held that in order for legislation to be valid

under the crimin al law power, there must be a prohibition coupled

with a p enalty.

In the Margarine Re ference,8 Rand J. for the Supreme Court added

a third criterion for valid criminal law power: the law must be enacted

for a criminal pur pose. Rand J. held:

[A]s prohibitions are not enacted in a vacuum, we can properly look

for some evil or injurious or unde sirable effect upon the public

against which the l aw is directed. That effect m ay be in relation to

social, economic or politic al interests; and the leg islature has had i n

mind to suppress t he evil or to safeguard t he interest threatened.

. . .

Is the prohibition . . . enacted w ith a view to a public purpose

which can support it as b eing in relation to crim inal law? Public peace,

order, security, health, moralit y: these are the ordin ary though not

exclusive ends ser ved by that law.9

The Margarine Refere nce remains the sta rting point for the analysis

of the federal crimin al law power under section 91(27). For legislation

to be upheld under section 91(27), it must contain three elements: (1) a

3 [2010] 3 S.C.R. 457 [Human Reproduction Reference].

4 Ibid., LeBel and De schamps JJ. at para. 230.

5 [1922] 1 A.C. 191 (P.C.).

6 [1931] A.C. 310 (P.C.).

7 Ibid. at para. 16.

8 Reference Re Validity of s. 5(A) of Dairy Indu stry Act (Canada), [1949] S.C.R. 1

[Margarine Re ference]. The matter was appealed to t he Privy Council, which

adopted the reas ons of Rand J. See Canadian Federat ion of Agriculture v. Qué.

(A. G.) (1950), [1951] A.C. 179 (P.C.).

9 Margarine Refe rence, above note 8 at 49–5 0.