B. Federal Criminal Law Power

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 350-365

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As LeBel and Deschamps JJ. stated in Reference re Assisted Human Reproduction Act,³ "[d]efining the limits of the federal criminal law power has always been a difficult task."⁴Early cases established 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 very nature belong to the "domain of criminal jurisprudence." However, in Reference Re The Combines Investigation Act (Can.) s. 36,⁶the Privy Council rejected this static and formalistic test. Lord Atkin observed that "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."⁷Lord Atkin held that in order for legislation to be valid under the criminal law power, there must be a prohibition coupled with a penalty.

In the Margarine Reference,⁸Rand J. for the Supreme Court added a third criterion for valid criminal law power: the law must be enacted for a criminal purpose. Rand J. held:

[A]s prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.

. . .

Is the prohibition . . . enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law. . . .⁹The Margarine Reference remains the starting point for the analysis of the federal criminal law power under section 91(27). For legislation

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to be upheld under section 91(27), it must contain three elements: (1) a prohibition; (2) backed by a penalty; (3) with a valid criminal law purpose.¹⁰The first two elements serve as formal constraints and the last criterion serves as a substantive limitation.

The substantive requirement that the law have a "criminal ... public purpose" might be thought to constitute a fairly significant limitation on the scope of the criminal law power. Yet the practical effect of this "criminal purpose" requirement will depend on how broadly or narrowly the relevant purposes are framed. The catalogue of purposes identified by Rand J. in the Margarine Reference - particularly health and morality - is extremely broad and amorphous. Moreover, many cases have construed the "criminal law" purposes of federal legislation in liberal and flexible terms. As a result, the criminal law power has served as a plenary grant of authority, supporting federal regulation of matters that might otherwise fall within provincial jurisdiction as an aspect of property and civil rights, or matters of a merely local or private nature in the province. The approach taken in the criminal law jurisprudence can be contrasted with the approach taken with other federal powers, such as the pogg power and the trade and commerce power. In these areas, the courts have repeatedly held that federal legislation cannot be supported on the basis of broad or generalized purposes such as "inflation" or "protection of the environment."¹¹No such limitation has been attached to the use of the criminal law power, with the list of traditional criminal public purposes including such amorphous subjects as health or the protection of the environment.

The instances in which the Supreme Court has struck down federal legislation enacted in reliance on the criminal law power have been relatively rare. In the Margarine Reference, the Supreme Court held that a provision of the Dairy Industry Act prohibiting importation, production, and consumption of margarine in Canada could not be upheld under the criminal law power. The legislation satisfied the first two requirements for a valid criminal law. However, Rand J. held that the law could not be supported under section 91(27) because it was not "enacted with a view to a public purpose which can support it as being in relation to criminal law." Had there been evidence indicating that margarine was unsafe or unhealthy, Parliament’s authority to prohibit its sale would have been clear, since "health"

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was a valid criminal purpose. However, the federal government had conceded that margarine was a perfectly healthy and safe product. The purpose of prohibiting dealings in margarine was to protect the dairy industry by banning products that would compete with butter. Rand J. held that this was an "economic" purpose designed to "give trade protection to the dairy industry in the production and sale of butter; to benefit one group of persons as against competitors in business in which, in the absence of the legislation, the latter would be free to engage in the provinces."¹²This was a "trade" purpose as opposed to a "criminal" purpose and, accordingly, the legislation could not be supported as criminal law.¹³In Labatt Breweries v. Canada,¹⁴the Court struck down regulations promulgated under the Food and Drugs Act stipulating the alcohol content for beer marketed as "light beer." The majority decision, written by Estey J., recognized that the federal criminal law power could be used to regulate false, deceptive, or confusing labelling practices. However, Estey J. held that the regulations in question were not enacted with any of these purposes in mind but were, rather, an attempt to regulate the beer industry. Several commentators have criticized this decision on the basis that the regulations were designed to prevent consumer deception and therefore should have been upheld on the basis of the criminal law power.¹⁵

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Another of the relatively rare cases that have struck down federal legislation as being beyond the criminal law power was R. v. Boggs.¹⁶

In Boggs, the Court considered a provision of the Criminal Code making it an offence to drive a motor vehicle while one’s provincial driver’s licence is suspended. The driver’s licence of the accused had been suspended because he had been convicted of driving while impaired, a Criminal Code offence. Had the provincial licence suspension been triggered in this kind of circumstance only, the related Criminal Code offence of "driving while suspended" would have been valid, since it would have been related to the objective of promoting public safety, a valid criminal law purpose. However, Estey J. noted that provincial drivers’ licences could also be suspended for breach of various provincial regulations and the failure to pay taxes, judgments, and other fees. Estey J. concluded that there was no relationship between these grounds for licence suspension and the criminal law purpose of public safety. Accordingly, the Criminal Code provision was unconstitutional. The ruling in Boggs suggests that the criminal law cannot be used as an adjunct to provincial regulatory and taxation regimes and must be linked to a valid and identifiable federal public purpose. This does not seem to be a particularly onerous or unfair hurdle for federal criminal legislation to surmount. For example, in 1985, Parliament amended the Criminal Code to limit the application of the offence of "driving while suspended" in the manner suggested by Estey J. in Boggs, and the amended provision is undoubtedly valid.¹⁷In contrast to the handful of cases that have struck down federal legislation sought to be justified under section 91(27), Parliament’s criminal law jurisdiction has been used to justify a wide range of federal enactments, including the regulation of the manufacture, sale, or use of a great variety of products that Parliament deems to be dangerous or harmful,¹⁸regulation of trade practices injurious to the public interest such as anti-competitive conduct,¹⁹price discrimination,²⁰or

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resale price maintenance,²¹the advertising of tobacco products,²²the prohibition of lotteries or gaming activities other than those authorized or conducted by the provinces,²³and the regulation of assisted human reproduction.²⁴The Supreme Court has dramatically expanded federal jurisdiction under section 91(27), in some cases adopting reasoning that is rather strained and artificial.

For instance, in RJR-MacDonald,²⁵ a majority of the Court upheld the Tobacco Products Control Act under section 91(27). The Act broadly prohibited, with certain exceptions, the advertising and promotion of tobacco products and the sale of a tobacco product unless the package included prescribed health warnings. The prohibitions in the Act were not limited to interprovincial or international trade or to transactions that crossed provincial borders. The bans on advertising and promotion, as well as the requirements of health warnings, applied to all dealings in tobacco. However, the Act - except for a prohibition on the distribution of free samples of tobacco products - did not proscribe the sale, distribution, or use of tobacco products. Both the Quebec Superior Court and the Court of Appeal ruled that the legislation could not be supported on the basis of the criminal law power. Brossard J.A. found it significant that the Act did not prohibit tobacco consumption. He reasoned that Parliament cannot criminalize an ancillary activity (the advertising of a product) when the principal activity (the consumption of that product) remained legal.²⁶

La Forest J., writing for seven members of the nine-member Supreme Court, disagreed and held that the legislation was supportable under Parliament’s criminal law power.²⁷La Forest J. began his discus-

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sion of this issue by noting that the criminal law power "is plenary in nature and this Court has always defined its scope broadly."²⁸According to La Forest J., section 91(27) of the Constitution Act, 1867 must be read as assigning to Parliament exclusive jurisdiction over criminal law "in the widest sense of the...