Criminal law under the Constitution Act, 1867

In Canadian Constitutional law, the Constitution Act, 1867 provides the government with the authority to legislate on matters of criminal law and quasi-criminal law. The primary criminal law power is granted to the federal government under section 91(27). Additional criminal law-related powers are available to the provincial governments under sections 92(14) and 92(15).

Criminal law power

Section 91(27) extends exclusive legislative authority to the Parliament in matters of "Criminal Law, except the Constitution of Court of Criminal jurisdiction, but including the Procedure in Criminal Matters." This federal power is by and large the broadest of the enumerated powers allocated to the federal government.^[1]

The meaning of the phrase "criminal law" was historically a matter of debate. It was first defined by the Privy Council in the Board of Commerce case as that which the "subject matter is one which by its very nature belongs to the domain of criminal jurisprudence". This definition was found to be overly narrow as it froze the definition of 91(27) to only include matters that were considered criminal during Confederation. The provision was reinterpreted in PATA v. Canada where instead the Privy Council used a very broad definition describing it as any law containing a prohibition with penal consequences.

The modern interpretation was finally articulated in the Margarine Reference where the Court stated that criminal law consisted of a prohibition with penal consequences and a legitimate public purpose. The Court enumerated a number of valid public purposes which included "public peace, order, security, health, morality." Other public purposes were eventually added including "environment".^[2]

Provincial regulatory powers

The provinces retains some power over criminal law through a number of constitutional provisions. Under section 92(15) the provinces are able to impose "Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated" within section 92. This means that a province can attach criminal penalties to valid provincial laws. Consequently, there is frequently debate over whether a provincial law is intruding upon the federal criminal law power.

Where the province enacts a regulatory scheme that contains penalty and concerns matters normally within its jurisdiction the law is typically upheld. In Bedard v. Dawson, a provincial law that shutdown "disorderly houses" within the meaning of the Criminal Code was held to be in relation to property and civil rights. Provincial driving offences that overlapped with federal driving offences have been upheld as regulation of highway traffic. ^[3]

Likewise, penal laws regulating parades in the streets^[4] and film censorship^[5] were upheld as matters of a local nature. However, regulation of activities in the street have not always been upheld. In Westendorp v. The Queen (1983) the Court struck down a provincial law prohibiting persons remaining in the street for the purposes of prostitution as it was attempting to "control or punish prostitution".

Many provincial licensing schemes enacted under section 92(9) ^[6] have contained penal provisions that have been challenged. In Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board) (1987) a provincial licensing scheme that prevented "nude entertainment" was upheld as law "regulating entertainment" as a means to increase sales even though there was a similar Criminal Code provision concerning nude dancing.

Notes

1. ^ "s. 91(27) of the Constitution must be read as assigning to Parliament exclusive jurisdiction over criminal law in the widest sense of the term" Scowby v. Glendenning, [1986] 2 S.C.R. 226 at 238.
2. ^ R. v. Hydro-Québec
3. ^ see Provincial Secretary of Prince Edward Island v. Egan (1941) and O'Grady v. Sparling.
4. ^ Dupond v. Montreal (1978)
5. ^ Nova Scotia Board of Censors v. McNeil (1978)
6. ^ gives provincial jurisdiction over "Shop, Saloon, Tavern, Auctioneer, and other Licences" in order to raise revenues for local purposes.