Criminalization by Regulation: The Outer Limits of Section 91(27) of the Constitution Act, 1867

• Author: Morris Manning, Q.C
• Pages: 309-352

Criminalization

by

Regulation:

The

Outer

Limits

of

Section

91(27)

of

the

Constitution

Act, 1867

Morris

Manning,

Q.C.*

A.

INTRODUCTION

In

Attorney

General

of

Canada

v.

Canadian National Transportation

Ltd.,1

Chief

Justice Laskin voiced

the

view that

"language

and

logic inform

constitutional interpretation." While there

is no

doubt that language

still

informs

constitutional

interpretation,

a

review

of the

case

law as it

has

developed over

the

last

five

years reveals very little logic

in

what

may

be

characterized

as the

extended reach

of the

criminal

law

power.

The

case

law has

brought

to the

forefront

of the

analysis

the

characteri-

zation

by

Albert

S.

Abel

of the

criminal

law

power

as the

"floodplain

clause

which

has

enabled

the

Dominion Parliament

to

engulf whenever

it

will."

The

extension

of the

power appears

to be

well beyond that

which

has

been traditionally regarded

as not

only

the

purview

of the

provinces

but

also appears

to

extend beyond

our

traditional notions

of

what type

of

conduct constitutes "crime"

and

what sort

of

individuals

are

"criminals."

Regulation

of

conduct

by

both levels

of

government

is

certainly

nothing new.

Indeed,

the

Supreme Court seems

to

have taken

the

view

that

in

Canada

we

cannot exist without being regulated

in

almost every

*

Morris

Manning

Barrister-at-Law, Toronto, Ontario.

1

[1983]

2

S.C.R.

206

309

310

Morris Manning

aspect

of our

daily activities. Whether

one

subscribes

to

such

a

view

depends,

of

course,

on

one's

political

and

economic philosophy,

to say

nothing

of

one's

economic circumstances.

I

will

not

enter into this

debate. That subject

should

be

dealt with

in a

program dealing with

the

regulation

of

Canadian living.

The

origin

and

purpose,

as

well

as the

scope

and

function

of the

criminal

law in its

constitutional

and

historical origins,

is

briefly

reviewed

by

Alan Mewett

and

myself

in

each

of the

editions

to our

crim-

inal

law

text.2

As we

point out,

an

understanding

of

what

the

criminal

law

is and in

what sources

it is

found does

not

answer

the

basic question

of

what ought

to be

criminal law.

An

examination

of the

nature

and

pur-

pose

of the

criminal

law

reveals that

the

historical development

of the

criminal

law in

England

was not

susceptible

to

logical analysis.

Concepts

of

moral

fault,

as

well

as

concepts

of

social harm, were brought

into

the

embrace

of the

criminal

law as

were

all

offenses

having

their ori-

gins

in

religious laws

and

social

and

political circumstances designed

to

protect

the

advantages

of

those

who

were dominant

in

society.

Much

of the

criminal

law is

regulatory. While legislative bodies

search

for

those

acts

that caused damage

to

individual

members

of

soci-

ety

or to its

collective

and to

subject

those activities

to

criminal sanc-

tions,

a

rationale

behind

the

choices

is

difficult

to

find.

We

stated that

the

imposition

of

punishment

for a

particular

act,

which

in

theory

is

designed

for the

prevention

of

harm, enabled

us to say

that

"an act

that

has

been

defined

by the

state

as a

crime has,

as one of its

criteria,

the

quality

of

being punished

by the

state upon

proof

that

the

accused com-

mitted

an

act."3

We

left

open

to

question whether what

had at one

point

in

time appeared

to be a

more

or

less rigid distinction between

the

pur-

pose

of

civil

law, namely

to

compensate

the

victim,

and the

purpose

of

the

criminal law, being

to

punish

the

commission

of

acts declared

to be

crimes,

was a

distinction that would always

be

maintained.

The

recent

case

law in the

Supreme Court

of

Canada

has

indicated

that

the

distinc-

tion

is

blurred.

The

complexities

of the

concept

of

crime

in the

modern

age

require

a

closer examination

of

what

kinds

of

wrongs

are

appropri-

ately

characterized

as

crimes

and

what kind

of

actions

by

certain indi-

viduals require

us to

label them criminals.

It

is

clear that

the

Supreme Court

of

Canada

in its

recent rulings

has

not

chosen

to

undergo

the

kind

of

examination that

is

clearly required.

2

A.W. Mewett

& M.

Manning,

Mewett

and

Manning

on

Criminal

Law,

3d ed.

(Markham,

ON.:

Butterworths, 1994).

3

Ibid,

at 15.

Criminalization

by

Regulation

311

The

Court's

decisions,

taking

it

beyond traditional notions

of

criminali-

ty,

have been reached without examining

the

jurisprudential

basis

of the

modern criminal law.

As

S.E. Marshall

and

R.A.

Duff

point

out,4

while

public

policy debates concerning

the

possible decriminalization

of a

whole range

of

activities including drug taking, prostitution,

and

insid-

er

trading display complexities

of the

concept

of

crime, rarely

do

partic-

ipants

in

those public debates address directly

the

complexities inherent

in the

subject.

Unfortunately,

while

the

authors

do

seek

to

begin

a

dia-

logue

on the

issue, they intentionally have tried

not to

discuss what

kinds

of

conduct should

be

criminalized.

A

reading

of the

Supreme

Court's latest pronouncements under section

92(27)

shows

the

need

for

those complexities

to be

dealt with.

B.

FORMER

JURISPRUDENCE

Any

review

of the

criminal

law

power begins with recognition that

the

federal

authority attempted

from

time

to

time

to

find

a

constitutional

basis

for

what

was an

essentially regulatory purpose.

As

pointed

out by

G.

LeDain5 that

basis

was in the

criminal

law

power.

The

issue

is

framed

as

what

the

courts have been prepared

to

recognize

as a

valid criminal

law

purpose

and a

bonafide

exercise

of the

criminal

law

power.

The

only

limitation

on the

federal

power

was

what

was

referred

to as the

doctrine

of

colourability.

As

will become apparent,

further

limitations were

added

as the

jurisprudence developed.

It

will also

be

seen that recent

jurisprudence returns

us to a

single limitation.

If the

form

of the

crimi-

nal

law was not

used

in a

colourable attempt

to

usurp

an

area

of

provin-

cial

jurisdiction,

and the

purpose

or

object

of the

legislation disclosed

a

genuine criminal

law

concern,

the

legislation

was

upheld. While

the

Reciprocal

Insurer's

case6

struck down

an

amendment

to the

Criminal

Code

making

it an

offence

to

carry

on the

business

of

insurance without

a

federal

licence,

it did so on the

basis there

was not a

bonafide

attempt

to

create

the

crime

of

carrying

on the

business

of

insurance without

a

licence.

As

will

be

seen,

the

legislation

in

issue

in the

Firearms

Reference,

infra,

attempts

to

criminalize

possession

of

firearms

without

a

licence

4

S.E. Marshall

&

R.A.

Duff,

"Criminalization

and

Sharing Wrongs" (1998)

11

Can.

J.

L.

&

Jur.

7-22

at

footnote

2.

5

"Duff

and the

Constitution"

(1974)

12

Osgoode Hall.

L. J.

261.

6

[1924]A.C.

328.