Criminal Law

AuthorPatrick J. Monahan/Byron Shaw/Padraic Ryan
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
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.
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.

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