C. Provincial Power To Enact Penal Laws

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 365-374

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While section 91(27) of the Constitution Act, 1867 grants Parliament exclusive authority to enact criminal law, section 92(15) grants the provinces the power to impose "Punishment by Fine, Penalty or Imprisonment" for the purpose of enforcing otherwise valid provincial legislation. Thus, a province can enact "quasi-criminal legislation" that resembles, in form at least, criminal laws enacted by the federal Parliament. Provinces commonly rely on this power by including in statutes provisions making it an offence to violate provisions in a statute

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and setting out penalties, including imprisonment, for breach of the provisions in question. Given the existence of section 92(15), the vast majority of such quasi-criminal provisions are constitutionally valid. Some difficulty has arisen in instances where the provinces have enacted legislation that regulates conduct that is also subject to criminal prohibitions found in the Criminal Code. The question in such cases is whether the legislation is sufficiently anchored in a head of power in section 92 that the province can argue that it is not a colourable attempt to enact criminal legislation. Unfortunately, the results in the cases considering these near-criminal provisions have been confusing and contradictory, and it is extremely difficult to distinguish the cases on the basis of any discernible principle.

In Bedard v. Dawson,⁵⁸the Supreme Court of Canada upheld a provincial law authorizing the closing of "disorderly houses," which were primarily defined as houses where there had been Criminal Code convictions for gambling or prostitution. Despite the close similarity between the provincial legislation and the related Criminal Code provisions, the Supreme Court upheld the law on the basis that it did not purport to create a criminal offence but rather provided a civil remedy (i.e., an order to close the disorderly house) where a continuing offence under the Criminal Code was being committed. As such, the Court characterized it as a regulation of the use of property as well as a law directed at suppressing the conditions that would cause crime, rather than as a criminal law. Other cases extended the reasoning in Bedard and upheld provincial laws that created quasi-criminal offences in terms that were virtually identical to prohibitions included in the Criminal Code. For example, a series of cases dealing with provincial driving offences, including Egan⁵⁹and O’Grady,⁶⁰held that the relevant provincial legislation was distinguishable in some way from similar Criminal Code provisions and could be upheld as valid.

At the same time, however, a contrary and inconsistent line of cases struck down a variety of provincial penal provisions on grounds that they regulated matters that were properly within Parliament’s exclusive criminal law domain. In Reference Re Alberta Legislation,⁶¹the Supreme

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Court considered an Alberta statute that required newspapers to publish statements clarifying "the true and exact objects of the policy of the Government and as to the hindrances to or difficulties in achieving such objects to the end that the people may be informed with respect thereto."⁶²The case is most often cited for Duff C.J.’s holding that it was beyond the power of the provinces to enact legislation restricting the right of "free public discussion of affairs." However, Cannon J. relied on more conventional division of powers grounds to find that the provincial law was unconstitutional. Cannon J. reasoned that the bill was an attempt to revive the old English crime of seditious libel, under which it had been a crime to criticize government policy. Seditious libel had been abolished in England and in Canada in 1792. Cannon J. held that Alberta was in effect attempting to amend the Criminal Code to recreate the crime of seditious libel and was on that basis invalid.

Cannon J.’s reasoning was followed and developed in a series of cases in the 1950s dealing with provincial laws attempting to restrict civil liberties. In Henry Birks & Sons (Montreal) Ltd. v. Montreal (City),⁶³the Supreme Court unanimously struck down a city by-law that compelled observance of certain Catholic religious holidays. The majority held that the by-law was, in pith and substance, legislation in relation to criminal law and beyond provincial competence. In Switzman v. Elbling,⁶⁴the Supreme Court struck down a provincial statute providing for the closing of any house used to propagate communism or bolshevism and made it unlawful to print or publish material directed toward the same end. This "padlock law" was obviously modelled on the provision that had been upheld as valid in the Bedard case. Nevertheless, the Supreme Court distinguished Bedard on the basis that it had been concerned with the effect of certain activity on the use and enjoyment of neighbouring properties, whereas the legislation before the Court in Switzman was designed to prevent the propagation of communism within the province. There was no evidence that this activity constituted a local nuisance in the same manner as the disorderly houses in Bedard, and the province was in reality attempting to enact criminal legislation.⁶⁵

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These cases seemed to suggest that a province could prohibit conduct that was also prohibited under the criminal law as long as the province was acting for a purpose that was somehow distinguishable or separate from the purpose being pursued by Parliament. However, the 1978 McNeil case⁶⁶significantly relaxed this relatively modest limitation on provincial jurisdiction. McNeil considered the constitutional validity of provincial legislation establishing a board of censors with power to regulate or prohibit the public exhibition of films. The majority opinion of Ritchie J. upheld the legislation on the basis that it was enacted for the purpose of regulating the film business in the province. Ritchie J. characterized the legislation as concerned with dealings in and the use of property (films) rather than criminal legislation. He acknowledged that the board of censors would make its decision whether to permit the exhibition of a film based on moral grounds - whether the film was considered unsuitable for viewing based on local standards of morality. He relied on the fact that the legislation did not create a criminal offence or provide for punishment but was directed at the establishment of a regulatory regime for theatres and film distributors. Ritchie J.’s conclusion seems primarily founded on the form of the legislation, emphasizing the fact that it was not framed in traditional criminal law terms of a prohibition coupled with a penalty. This concern was reflected in his further conclusion that a particular provincial regulation prohibiting an "indecent performance" was unconstitutional as an invasion of Parliament’s criminal law jurisdiction. Ritchie J. pointed out that the wording of the provincial regulation was virtually identical to a Criminal Code provision making it an offence to exhibit an "indecent show" publicly, citing the Johnson case as authority for the proposition that this regulation was beyond the authority of the province.⁶⁷Having seemingly loosened the restrictions on provincial power to regulate morality through penal legislation in McNeil, the Court abruptly reversed course in Westendorp v. R.⁶⁸At issue in Westendorp

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was a Calgary by-law regulating the use of city streets, including provisions controlling soliciting or carrying on business on any street. Calgary...