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The Oxford Handbook of the Canadian Constitution edited by Oliver, Peter; Macklem, Patrick; Des Rosiers, Nathalie (19th October 2017)

Part IV Federalism, B Federalism in Context, Ch.22 Criminal Law in the Federal Context

Mark Carter

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

(p. 475) Chapter 22  Criminal Law in the Federal Context

1.  Introduction: The Intricate Division of Legislative Powers Relating to Criminal Law

The Constitution Act, 18671 establishes an intricate division of legislative powers in the area of criminal law, the implications of which are constantly evolving in response to federal and provincial (including municipal) policy agendas and shifting judicial temperaments. Under section 91(27) Parliament is given legislative authority over “criminal law … including the Procedure in Criminal Matters.” Expressly excluded from this grant of powers is the jurisdiction to make laws in relation to “the Constitution of Courts of Criminal Jurisdiction.” The power to constitute these courts—along with those of civil jurisdiction—is granted to the provincial legislatures in each province under section 92(14).2 Section 92(14) also confers on the provincial legislatures the power to make laws in relation to “[t]he administration of Justice in the Province” which has significant implications for the federal criminal law power, particularly as it concerns jurisdiction to investigate and to prosecute crimes. Also of significance to an understanding of the ability to create laws that have criminal law characteristics in Canada is the provincial legislatures’ jurisdiction to enforce provincial laws by the imposition of fines, penalties, or imprisonment under section 92(15). Finally, the expansively-worded provincial (p. 476) power contained in section 92(16) to make laws in relation to “all Matters of a merely local or private Nature in the Province” would seem to have great potential significance for the provinces’ powers to legislate in relation to what might otherwise be criminal law. In fact, however, section 92(16) has had little significance in this area.

2.  Parliament’s Plenary Jurisdiction over Criminal Law

A conventional starting point for discussions about criminal law in the Canadian federal context is the way that the grant of plenary jurisdiction to the federal Parliament contrasts with the situation in some other federal constitutions, the United States and Australia in particular, which share with Canada a British colonial and common law heritage. In the United States and Australia, as Peter Hogg suggests, “[t]he argument [was] accepted … that criminal law should reflect local conditions and sentiments.”3 In Confederation-era British North America, however, there was general consensus in favour of a federal or Canada-wide power to legislate in this area.4 In the Confederation debates, speaking on 6 February 1865, shortly before the end of the American Civil War, John A. MacDonald asserted that having “the same criminal law throughout these provinces” was “a matter almost of necessity.”5 The lack of this unifying element was, in Macdonald’s estimation, “one of the most marked instances in which we take advantage of the experience derived from our observations of the defects in the Constitution of the neighbouring Republic.”6

To whatever degree that federal criminal law acts as the agent of national unity that MacDonald imagined—a “symbol of nationhood” that “state[s] fundamental values”7—the catalogue of provincial powers has allowed some of the adaptation to regional conditions and attitudes that exists where criminal law is a matter of state-level jurisdiction. As discussed below, the courts have recognized a considerable degree of provincial aspect in matters that are also of criminal concern, which has allowed provinces to pass laws that are often more restrictive than criminal laws. Also of significance is the fact that most Criminal Code8 offences are prosecuted by provincial Crown attorneys, acting as agents for provincial Attorneys General. An issue that will be returned to is the question as to whether this practice reflects the provinces’ jurisdiction over the “administration of justice” under section 92(14), or merely the fact that Parliament has delegated (p. 477) its authority in this area to provinces through its definition of “Attorneys General” in the Criminal Code. One way or the other, when combined with the provincial power to create police forces, which falls less controversially within the power over the administration of justice in the province,9 criminal law can be administered in a manner that recognizes some unique regional values and needs.

3.  The Formal Characteristics of Criminal Laws

Laws that are characterized as criminal in nature under section 91(27) are expected at least to possess the requisite formal characteristics of, first, prohibiting some forms of activity and, second, setting out punitive sanctions for the commission of the prohibited acts.10 The Supreme Court has recently remarked on the “liberal interpretation given to the formal component”11 of criminal laws in its past decisions. As it relates to prohibitions, the “liberalization” that the Court alludes to has arisen in situations where federal legislation has been upheld under section 91(27) notwithstanding the fact that the conduct that some laws targeted was more regulated than prohibited. Characteristics of regulation include the licencing of the “prohibited” activity,12 the exercise of administrative discretion in defining the important aspects of the prohibition,13 exemptions from prohibitions14 and provincial equivalency whereby federal legislation will not apply where provincial regulation of the activity is deemed adequate.15 Legislation has also been upheld under section 91(27) notwithstanding the fact that it did not directly prohibit the objectionable activity—smoking—but, rather, the advertising that promotes it.16 In relation to punishment, imprisonment and significant fines provide the standard criminal (p. 478) sanctions. However, the courts have also recognized a preventive branch of the criminal law power which allows, for example, for the detention of people who are found not criminally responsible on account of mental disorder.17

4.  The Substantive Characteristics of Criminal Laws

A.  Narrow and Broad Definitions

The third prerequisite for criminal laws is the substantive one, requiring that they should serve a recognized criminal law purpose.18 The courts’ attempts to identify these purposes and, therefore, the kinds of conduct that are the appropriate subjects of Parliament’s jurisdiction under section 91(27) fall along a spectrum of definitions from narrow to broad. The extreme ends of the spectrum were both provided by decisions of the Judicial Committee of the Privy Council. Reference Re the Board of Commerce Act, 1919, & The Combines and Fair Prices Act, 191919 concerned the validity of federal legislation aimed at restricting profiteering and unfair business practices in the post-World War I period. These objectives were pursued by, among other things, allowing the Board to make orders that limited profit margins on the sale of food and clothing. The Court rejected all of the bases on which the legislation’s validity was defended. In relation to the scheme’s characterization as criminal law, Lord Haldane held that the legislation did not deal with a matter “which by its very nature belongs to the domain of criminal jurisprudence. …” such as would be the case with “[a] general law … making incest a crime.”20 Lord Haldane’s example is meant to speak for itself, but it may be concluded that in this view the fact that prohibitions addressed concerns about the moral nature of the activity was determinative of their appropriateness as subjects of criminal law.

At the other end of the spectrum, Lord Atkin provided the broadest understanding of Parliament’s criminal law jurisdiction, in Proprietary Articles Trade Association v A.G. Canada (PATA).21 The case, once again, involved federal legislation aimed at unfair business practices.22 In upholding the legislation as criminal law, Lord Atkin stated:

Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of (p. 479) an act cannot be … discovered by reference to any standard but one: Is the act prohibited with penal consequences?23

On the connection between criminal law and morality, Lord Atkin asserted that “[m]orality and criminality are far from co-extensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality.”24

A place somewhere closer to the middle of the spectrum was provided by Justice Rand’s decision in Margarine Reference.25 In assessing the proposed criminal nature of federal prohibitions on the manufacture, possession, and sale of margarine, Justice Rand interpreted Lord Atkin in PATA as only having rejected Lord Haldane’s views regarding criminal law’s exclusive focus on acts that “carry some moral taint.”26 In Rand J.’s view, however, it was still appropriate to require Parliament to address “some evil or injurious or undesirable effect upon the public.”27 Along with morality, Justice Rand’s non-exhaustive list of “public purposes” of criminal law included public peace, order, security, and health.28 In an earlier passage Rand J. also indicated that criminal law could be properly concerned with “social, economic or political interests.”29 Notwithstanding the breadth of these purposes, however, Justice Rand held the margarine prohibitions to be “insidious form[s] of encroachment” on provincial jurisdiction over the dairy industry,30 a position with which a majority concurred.

Justice Rand’s allusion to “insidiousness” suggests the tone of judicial disapproval which, as Peter Hogg points out, often attends the invocation of the doctrine of “colourablility.” Colourablility is invoked when courts determine that “a law [that] looks as though it deals with a matter within jurisdiction … in essence is addressed to a matter outside jurisdiction.”31 In fact, notwithstanding Rand J.’s efforts at reigning in the broadest definition of the criminal law power, until recently colourability seemed to have emerged as the only significant qualifier of Lord Atkin’s broad definition of the criminal law power. This was Justice La Forest’s interpretation for the majority in R. v Hydro-Québec.32 In recognizing that a clean environment is “a public purpose within Rand J.’s formulation in the Margarine Reference33 he also emphasized that Justice Rand’s “helpful” list of “the more usual purposes of a criminal prohibition” was not exhaustive.34 This remark was prefaced by the observation that “the Charter apart, only one qualification (p. 480) has been attached to Parliament’s plenary power over criminal law. The power cannot be employed colourably …”35 The Supreme Court also used a challenge to the offence of possessing marijuana for personal use to confirm the on-going validity of using the criminal law power to condemn forms of conduct for purely moral reasons, without requiring Parliament to prove that the proscribed conduct is otherwise harmful.36

Justice La Forest’s expansive view of the criminal law power simultaneously advanced his argument against an overly “enthusiastic adoption of the ‘national dimensions’ doctrine”37 under the peace order and good government power contained in the introductory clause of section 91. In a number of significant decisions, Justice La Forest argued that the enumerated classes of subjects under section 91, including the criminal law power, provide a better jurisdictional basis for Parliament’s attempts to address environmental and health issues, than the national concern branch.38 Arguments for national concern jurisdiction had achieved some success at the Supreme Court in relation to environmental jurisdiction39 and at provincial courts of appeal in relation to health issues.40 Justice La Forest argued that national concern jurisdiction “assign[s] full power to regulate an area to Parliament,’ whereas criminal law merely “seeks by discrete prohibitions to prevent evils falling within a broad purpose, such as, for example, the protection of health.”41 A beneficial effect of locating Parliament’s jurisdiction in section 91(27) or one of the other enumerated classes of section 91 is that the provinces retain jurisdiction to regulate the matter as well through the double aspect doctrine.42

For the reasons that Justice La Forest suggested, criminal law jurisdiction over a matter may be preferable to national concern from the perspective of provincial governments. Some commentators, however, have been concerned on the provinces’ behalf about the expansive view being taken by Supreme Court majorities—as slim as they may have been43—in relation to both the formal and substantive characteristics of criminal law. Morris Manning, for example, suggested that the trend bore out Albert Abel’s characterization of the criminal law power as the “floodplain clause which has enabled (p. 481) the Dominion Parliament to engulf whatever it will.”44 Similarly, Graeme Mitchell commented that Justice La Forest’s “loose reformulation” of the public purposes of criminal law in Hydro-Québec, combined with his tolerance for “an aggressive regulatory function of the criminal law power,” would “invite increasingly intrusive forays by Parliament into areas of legitimate provincial jurisdiction.”45 Mitchell looked ahead to the decision in Firearms Reference,46 then on appeal to the Supreme Court of Canada, as the case that would test the “greatly expanded regulatory aspect of the criminal law power” and “not only delineate the parameters of the criminal law’s regulatory aspect but also test the elasticity of the balance of legislative powers in our federal system.”47 In the result, the Firearms Act with its extensive regulatory and licencing system was upheld as valid criminal law by a unanimous Supreme Court.

B.  Renewed Interest in Judicial Review of the Purposes of Criminal Law

Reference Re Assisted Human Reproduction Act (the AHRA Reference)48 signals an intention on the part of the Supreme Court once again to focus on the public purposes of criminal law in order to limit the scope of the criminal law power. The unprecedented aspect of this newest initiative is the Court’s determination not only to be satisfied that Parliament is responding to, for example, moral concerns or the risk of harm, but also to assess how well-founded those concerns or risks may be. Furthermore, four of the justices writing for the majority informed their analysis with issues drawn from case law involving the Canadian Charter of Rights and Freedoms,49 which represents a significant and problematic doctrinal development. Although four other justices, in a decision written by the Chief Justice, rejected the integration of Charter concerns into the federalism analysis, they nonetheless joined the majority in raising the standards that Parliament has to meet in order to satisfy the courts of the significance of the public purpose of criminal law that it may be relying on in support of a legislative initiative.

The legislation that was at issue in the AHRA Reference contained absolute prohibitions against certain uses of reproductive and genetic technologies.50 The legislation also (p. 482) identified a range of controlled activities51 that could only be undertaken pursuant to the regulations and the licencing regime that the act established. The Attorney General of Canada submitted that the dominant purpose of the act, including the regulated activities, was to prohibit practises that would “undercut moral values.” The Attorney General also argued that the legislation was aimed at avoiding public health evils, and protecting the security of donors, donees, and people who would be conceived by use of the reproductive technologies.52 The province of Quebec, which launched the reference, conceded the criminal character of the prohibitions but argued that the pith and substance of the controlled activities regime was the regulation and licencing of scientific activity and medical services, which are firmly established areas of provincial jurisdiction.53

In their decision for four members of the Court declaring the impugned provisions of the Act to be ultra vires, Justices LeBel and Deschamps asserted that because of the “liberal interpretation given to the formal component” of criminal laws in the case law mentioned above, “[t]he substantive criterion [for criminal law] assumes particular importance.”54 Returning, to the touchstone of Rand J.’s decision in the Margarine Reference, Justices LeBel and Deschamps read much significance into his characterization of the public purposes of criminal law as being addressed at an “evil to be supressed or a threatened interest to be safeguarded.” Suggesting that the point is self-evident, they concluded that this implies that “the evil or threat must be real.”55 LeBel and Deschamps JJ. proceeded to identify for the Court a role in reviewing the significance of the risk of harm or the moral concern that, for its part, Parliament considered significant enough to legislate against.

LeBel and Deschamps JJ. relied on the majority’s position in Malmo-Levine that the process of analyzing whether laws that infringe Charter protections can be upheld as reasonably justified is “somewhat related”—a conclusion that was not explained in Malmo-Levine—to the analysis of the purposes of criminal laws under section 91(27).56 Thus, to the extent that laws that infringe freedom of expression will only be reasonably justified if they address harm that is “reasonably apprehended,” criminal laws also have to meet the “reasonable apprehension of harm” standard in order to be upheld under section 91(27). Ultimately, this introduces into section 91(27) analysis the concept of a “concrete basis” as the standard that is to be met both in order to establish that a law reflects a reasoned apprehension of harm and “where the legislative action is based on morality.”57 LeBel and Deschamps JJ. proceeded to establish the newly-claimed (p. 483) jurisdiction to review the moral purposes of criminal legislation as the basis for pre-emptive judicial strikes against what would otherwise be Charter infringements. They use federalism review in this area to assist the Charter in its role in “freeing” the Criminal Code from the “fetters” of “Judeo Christian morality.”58 By exercising this enhanced level of review, Justices LeBel and Deschamps envision the courts being employed in saving the criminal law power from the limitless definition59 that would result from allowing Parliament the last word in relation to the harm that it wishes to avoid and the moral standards that it wishes to enforce.

Chief Justice McLachlin and three others would have upheld the entire Act, resisting the incorporation of Charter issues into federalism analysis: “Whether a federal law falls within Parliament’s criminal law power under section 91(27) of the Constitution Act, 1867, is a question of which level of government has jurisdiction to enact this law … The degree to which the Act may impact on individual liberties is not relevant to this inquiry.”60 In her more deferential perspective, the Chief Justice was anxious to avoid “substitut[ing] a judicial view of what is good and what is bad for the wisdom of Parliament.”61 McLachlin C.J.C. did, however, recognize a standard of proof which is also potentially significant. Rather than giving Parliament the last word, she indicated that the courts will need to be satisfied that there is a reasonable apprehension that conduct is a threat to central moral precepts, and also that there is “consensus in society” that the conduct “engages a moral concern of fundamental importance”62 even in situations where the “jury is still out.”63

The “concrete basis” standard has arrived in our jurisprudence without guidance from the Court in relation to how it will be assessed, which will be a difficult task for the moral purposes of criminal law in particular.64 As it applied to the controlled activities in the AHRA, Justices LeBel and Deschamps found “nothing in the record” to suggest that the controlled activities “should be regarded as conduct that is reprehensible or represents a serious risk to morality, safety or public health.”65 For her part, Chief Justice McLachlin was satisfied that the legislation met the lower standard of a “societal consensus” that a moral concern of fundamental importance was being addressed. In arriving at this conclusion, the Chief Justice considered the validity of the Act as a whole before considering (p. 484) the controlled activities in particular.66 Accordingly, it was not difficult to determine the existence of societal consensus—in fact, as far as the prohibitions were concerned, it was not in dispute—about the moral significance of such extraordinary activities, given the extent to which they had been the subject of public and parliamentary debate and expert study.67 Since, in her estimation, the controlled activities were lesser variations of the prohibited practices, the need to regulate them was supported by the same consensus. That being said, evidence of “societal consensus” will be difficult to identify for legislation that deals with less extraordinary forms of activity, and it is not clear that the courts will be in a better position to assess this than Parliament.

Justices LeBel and Deschamps demonstrate admirable concern for the way that criminal law may compromise freedom and liberty interests, and their determination to let these concerns inform their federalism analysis is commendable. Such deprivations are, however, part of the definition of criminal law, some of the restrictive and punitive characteristics of which may be sanctioned by the Constitution.68 The Charter is an important vehicle for assessing the (un)reasonableness of these sorts of deprivations that define criminal laws and the consequences of being found guilty of them. As Peter Hogg suggests, however, when validity is an issue, “the first question is whether the law is within the law making power of the enacting body and the second is whether the law is consistent with the Charter.69 It may be added to this that, in cases that only involve the distribution of powers, the courts should avoid confusing these questions and attempting to address what might be future Charter arguments. Among other concerns70 this form of premature substantive judicial review interferes with “an essential characteristic of the federal distribution of powers” which is the principle of exhaustiveness: “In essence, there is no topic that cannot be legislated upon, though the particulars of such legislation may be limited by, for instance, the Charter.”71

(p. 485) 5.  Provincial Offences

The earlier discussion mentioned a theme of concern that the expansive interpretation of the federal criminal law power is seen by some as a threat to provincial legislative jurisdiction. It must be said, however, that the Supreme Court has also been liberal with its interpretation of provincial jurisdiction in relation to matters that are or could also be addressed by federal criminal legislation. This fact explains why the terrain that provincial jurisdiction shares with federal criminal law jurisdiction is probably the greatest example of the “double aspect” doctrine at work in Canadian constitutional law. Notwithstanding the references in sections 91 and 92 to the exclusivity of federal and provincial legislative competence over the matters that are enumerated in those sections, only 16 years after Confederation the Privy Council had already declared that a “subject[…] which for one purpose fall[s] within section 92, may in another aspect and for another purpose fall within section 91.”72 Two important examples from the case law discussed above are tobacco advertising73 and the release of toxic substances into the environment.74

Provincial laws that regulate matters that have a double aspect are allowed to operate until those laws come into conflict with federal laws, at which point the provincial legislation becomes inoperative to the extent of the conflict pursuant to the doctrine of federal paramountcy.75 A provincial law will be in conflict with a federal law when it is impossible to comply with both or when a provincial law frustrates the purpose of a federal law.76 Working in favour of provincial laws in this area is the Supreme Court’s holding that because criminal laws are “essentially prohibitory in character” it will be assumed that it is not the purpose of criminal legislation to provide a “freestanding right” to do whatever the law has not prohibited. Thus, in areas of double aspect, the provinces can legislate in ways that are more restrictive than Parliament’s criminal legislation in relation to the same matter.77 In Rothmans, Benson & Hedges Inc. v Saskatchewan, for example, provincial legislation that imposed an absolute ban on tobacco advertising was held not to be in conflict with federal criminal law that allowed a limited amount of advertising.78

(p. 486) The courts’ general willingness to uphold provincial laws that address moral considerations—the classic concern of criminal law—has been facilitated by the fact that such laws may be completely regulatory in nature which will detract from their characterization as “truly” criminal. For example Nova Scotia Board of Censors v McNeil79 involved a challenge of provincial legislation that required all films to be submitted to the censor board before they were allowed to be shown in theatres. The board could permit or prohibit the exhibition of films, or require changes, based on the board’s assessment of, among other things, whether the films were decent or obscene. Indecency and obscenity are matters of moral concern that are addressed by Criminal Code offences. In upholding this part of the legislation as validly enacted in relation to the regulation of an industry under sections 92(13) and (16), Ritchie J. for the majority emphasized the fact that the act did not create offences or provide for punishment and was preventive rather than penal in nature.80 Justice Ritchie’s reasons also provide an interesting inversion of Justice Rand’s position in PATA. If, as Justice Rand observed, federal criminal laws did not have to be concerned with morality—“morality and criminality are far from coextensive”—then it followed that provincial regulation of morality “is not necessarily ‘an invasion of the federal criminal field.’ ”81 In this regard, although Justice Ritchie was satisfied that the legislation was “in pith and substance, directed at property and civil rights and therefore valid under s. 92(13),” in obiter he suggested that an alternative basis supporting “pure” moral regulation might be available: “In a country as vast and diverse as Canada. … the determination of what is and what is not acceptable for public exhibition on moral grounds may be viewed as a matter of a ‘local and private nature in the Province’ within the meaning of section 92(16).”82

Although the regulatory rather than punitive character of provincial laws counts in favour of their validity, another factor that explains why provincial legislatures’ criminal-like enactments have so often been upheld is that the Constitution specifically allows such laws to contain the formal characteristics of criminal laws. It will be recalled that section 92(15) gives the provincial legislatures the power to “impose[…] punishment by fine, penalty, or imprisonment for enforcing any law of the province.” This power is ancillary, and must be used to enforce laws that are otherwise “anchored” in one of the other section 92 enumerations.83 However, given the courts’ broad interpretation of the public purposes of criminal law, as discussed in the previous section of this chapter, it will be appreciated that the provinces’ jurisdiction in such areas as health will make it very difficult to distinguish the substantive differences between some provincial and federal criminal law initiatives.

The phenomenon of overlapping provincial and federal criminal laws is well-illustrated in the area of automobile driving offences. It was established early in the (p. 487) twentieth century that the application of provincial legislation concerning the use of property could depend on convictions under the federal Criminal Code.84 On this basis, and in recognition of the province’s jurisdiction over highways and the use of property, a line of decisions upheld provincial laws that suspended the drivers’ licenses of people who were convicted of impaired driving offences under the Criminal Code85 and which did so in a manner that was more restrictive than the Criminal Code required.86 In Goodwin v British Columbia (Superintendent of Motor Vehicles)87 the Court upheld provincial legislation imposing automatic roadside licence suspensions, high fines, and the impounding of vehicles on the basis of lower blood alcohol levels than those that would trigger liability under the Criminal Code. The Court’s finding of validity in Goodwin was made in full recognition that the law “targets, in part, specific criminal activity and imposes serious consequences, without the protections attendant on criminal investigations and prosecutions.”88 Keeping with the theme of its decisions in this area, however, the Court found that the pith and substance of the legislation was not to “oust the criminal law, but rather to prevent death and serious injury on public roads by removing drunk drivers and deterring impaired driving.”89 Using this same line of reasoning, the Supreme Court has upheld provincial legislation allowing for the forfeiture of property that officials establish, on a balance of probabilities, constitutes the proceeds of crime, without the need for proof that a crime has been committed or charged.90

The courts have, however, occasionally shown less willingness to recognize a provincial aspect in relation to matters that are otherwise the subject of criminal laws. In McNeil, for example, although the provisions discussed above were upheld, Justice Ritchie found that the sections of the act that prohibited live “indecent or improper” performances (again, as determined by the board), were ultra vires because they were “indistinguishable from the like provisions of the Criminal Code.91 Similarly, although the courts have shown considerable tolerance for municipal by-laws92 that regulate (p. 488) kinds of activity on city streets that could also be the bases for Criminal Code offences,93 by-laws that are more clearly aimed at punishing than preventing criminal activity have been declared ultra vires.94 The Supreme Court has also blocked attempts by provincial legislatures to, in effect, replace Criminal Code prohibitions that have been struck down on Charter grounds.95

6.  The Administration of Criminal Justice

An earlier part of the discussion indicated that, although Parliament enjoys the plenary power over the creation of criminal law pursuant to section 91(27) of the Constitution Act, 1867, the provincial governments have the ability to affect the application of that law within their territories by the terms of section 92(14). That section gives the provincial legislatures jurisdiction over “The Administration of Justice in the Province, including the … Constitution, Maintenance, and Organization of Provincial Courts … Of Criminal Jurisdiction… ” It is well accepted that the reference to justice in this section includes criminal justice,96 and that the section gives the provinces the jurisdiction to establish police forces. The Goodwin decision provides some idea of the role of police and police discretion in modifying the application of criminal law in the provinces. In that case, the parties who were challenging the validity of the provincial roadside driving licence suspension scheme suggested that its true criminal nature was revealed by the fact that the police tended to enforce it instead of the Criminal Code provisions “effectively removing the more onerous and protective processes associated with criminal investigations and prosecutions.”97 In this regard, the Court recognized that “the fact that [the police] exercise their discretion to enforce one of these laws rather than another is consistent with police discretion generally.”98

(p. 489) The question as to whether the administration of justice in the provinces includes original jurisdiction to prosecute federal criminal laws is a matter of some debate.99 Practically speaking, provincial Crown prosecutors and Crown attorneys do, in fact, prosecute most Criminal Code offences and, before it started to become expanded with amendments in 1969, the Code’s definition of “Attorney General” was restricted to Attorneys General of the provinces where proceedings under the Code were taken.100 From the provincial governments’ perspective, this arrangement reflected what they understood to be their exclusive constitutional authority to prosecute criminal offences, which allowed for a measure of sensitivity to local conditions and attitudes in the application of the single national framework of criminal laws. Since that time, the federal government has successfully asserted its own jurisdiction to prosecute the criminal offences that it creates, whether they are included in the Criminal Code or in other statutes.101 Accordingly, although commentators generally assume the existence of original provincial jurisdiction over the prosecution of federal criminal offences that is at least concurrent with federal jurisdiction,102 some questions remain as to whether the provinces operate in this area only because Parliament has delegated that authority to them. There may, however, be some benefits to the possibility that the provinces prosecute as a matter “of grace and not as of right.”103 The “mere delegation” interpretation of their prosecutorial authority raises the possibility that the provinces could decline that responsibility in relation to some unpopular and/or expensive federal criminal law initiatives, leaving it up to the Attorney General of Canada to prosecute them if he or she wishes.104

7.  Conclusion

The federal criminal law power and the terrain that it shares with areas of provincial jurisdiction promise to remain at the center of debates concerning the practice of Canadian federalism. Nowhere is the tension so sharp between Canadian federalism’s traditional—indeed, definitional—need to retain some clear lines between areas of (p. 490) federal and provincial jurisdiction on the one hand, and on the other the siren call of the “dominant tide” of federalism105 which seeks to maximize the ability of both levels of government to legislate in the public interest, unrestricted by jurisdictional boundaries and limited only by instances of conflict.106 The nature and scope of the criminal law power is a necessarily dynamic subject, operating as something of a bellweather for the country’s shifting needs for, and interest in, either more centralized or more regional responses to such things as moral, social, environmental, and health concerns. In whatever way that the courts decide to draw the lines to suit the current legal, political, and social contexts, it must be done in a manner that recognizes not only the lines that exist between sections 91 and 92, but those that separate the branches of government and the other parts of the Constitution as well.


  • Articles, Chapters, and Books

  • Carter, Mark, “Recognizing Original (Non-delegated) Provincial Jurisdiction to Prosecute Criminal Offences” (2007), 38 Ottawa Law Review 163.
  • Carter, Mark, “Retributive Sentencing and the Charter: The Implications of Sauvé v. Chief Electoral Officer” (2005), 10 Canadian Criminal Law Review 43.
  • Carter, Mark, “Federalism Analysis and the Charter” (2011) 74 SKLR 5.
  • Duff, R.A. “Theorizing Criminal Law: A 25th Anniversary Essay” (2005) 25 OXJLS 353.
  • Friedland, Martin, A Century of Criminal Justice: Perspectives on the Development of Canadian Law (Toronto: Carswell, 1984).
  • Hogg, Peter, Constitutional Law of Canada, 5th ed., vol. 1, loose-leaf (Toronto: Thomson Carswell, 2007).
  • Kong, Hoi, “Subsidiarity, Republicanism, and the Division of Powers in Canada” (2015) 45 RDUS 13.
  • Leclair, Jean, “The Supreme Court of Canada’s Understanding of Federalism: Efficiency at the Expense of Diversity” (2003) 28 Q LJ 411.
  • Manning, Morris, “Criminalization by Regulation: The Outer Limits of Section 91(27) of the Constitution Act, 1867”, (2002) 13 Nat’l J Const L 309.
  • McConnell, Howard, Commentary on the British North America Act (Macmillan: Toronto, 1977).
  • Mitchell, Graeme, “Developments in Constitutional Law: The 1997–98 Term—Activism and Accountability” (1999), 10 SCLR 83.
  • Régimbald, Guy & Newman, Dwight, The Law of the Canadian Constitution (Butterworths: Toronto, 2013).
  • Ryder, Bruce, “The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations” (1991) 36 McGill LJ 308.
  • Webber, Jeremy, The Constitution of Canada: A Contextual Analysis (Hart: Oxford, 2015).
  • (p. 491) Cases

  • A.G. Canada v CN Transportation, [1983] 2 SCR 206.
  • Bédard v Dawson [1923] SCR 681.
  • Canadian Western Bank v Alberta, 2007 SCC 22, [2007] 2 SCR 3.
  • Chatterjee v Ontario (Attorney General), 2009 SCC 19, [2009] 1 S.C.R. 624.
  • Dupond v City of Montreal et al, [1978] 2 SCR 770.
  • Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3.
  • Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 SCR 250.
  • In re the Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919, [1922] 1 AC 191 (PC).
  • Nova Scotia Board of Censors v McNeil, [1978] 2 SCR. 662.
  • Proprietary Articles Trade Association v AG Canada, [1931] AC 310 (PC).
  • Provincial Secretary of Prince Edward Island v Egan, [1941] SCR 396.
  • R. v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401.
  • R. v Hauser, [1979] 1 SCR 984.
  • R. v Hydro-Québec,[1997] 3 SCR 213.
  • R. v Malmo-Levine, [2003] 3 SCR 571.
  • R. v Morgentaler, [1993] 3 SCR 463.
  • R. v Wetmore, [1983] 2 SCR 284.
  • Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 SCR 457.
  • Reference re Firearms Act (Can.), [2000] 1 SCR 783.
  • Reference re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference) [1949] SCR 1.
  • RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199.
  • Ross v Registrar of Motor Vehicles, [1975] 1 SCR 5.
  • Rothmans, Benson & Hedges Inc v Saskatchewan, 2005 SCC 13, [2005] 1 SCR 188.
  • Switzman v Elbing and the AG of Quebec [1957] SCR 285.
  • Westendorp v The Queen, [1983] 1 SCR 43.(p. 492)


Professο‎r, College of Law, University of Saskatchewan.

1  (U.K.), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 [hereinafter Constitution Act, 1867].

2  Although the provincial courts of appeal and superior courts are established by the provincial governments pursuant to these provisions, the judges of these courts are appointed by the federal executive pursuant to s. 96 of the Constitution Act, 1867.

3  Peter Hogg, Constitutional Law of Canada, 5th ed., vol. 1, loose-leaf (Thomson Carswell, 2007) 18-2.

4  Martin Friedland, A Century of Criminal Justice: Perspectives on the Development of Canadian Law (Carswell, 1984), 47.

5  Canada, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, 8th Leg 3rd sess, No 35906 (6 February 1865) at 41 (Hon. John A. Macdonald)).

6  ibid.

7  Friedland, above (n 4) 48.

8  Criminal Code, R.S.C. 1985, c C-46 [hereinafter Criminal Code].

9  Di Iorio v Warden of Montreal Jail, [1976] 2 SCR 152.

10  R v Malmo-Levine, [2003] 3 S.C.R. 571, [74] [hereinafter Malmo-Levine].

11  Reference re Assisted Human Reproduction Act, SCC 61, [2010] 3 SCR 457 [234] [hereinafter AHRA Reference].

12  For example the regime established by the Firearms Act, S.C. 1995, c. 39, upheld as criminal law in Reference re Firearms Act (Can.), [2000] 1 SCR 783 [hereinafter Firearms Reference].

13  This was a major issue for the dissent, which rejected as criminal law the regime established by the Canadian Environmental Protection Act, R.S.C., 1985, c. 16, in the Supreme Court’s 5-4 decision in R. v Hydro-Québec, [1997] 3 SCR 213 [hereinafter Hydro-Québec].

14  In Sopinka and Major JJ’s dissent in In RJR-MacDonald [1995] 3 SCR 199 [hereinafter RJR-MacDonald], the broad-based exemptions from the tobacco advertising bans contained in Tobacco Products Control Act, SC 1988, c 20, undermined the prohibitory nature of the legislation and, therefore, its criminal law character. Similarly, in AHRA Reference above (n 11), LeBel and Deschamps JJ [217] found that the controlled activities were not exceptions or “carve-outs” from prohibitions as the Chief Justice asserted, but were instead “designed to promote beneficial practices” (as Justices LeBel’s and Deschamps’s position was characterized by McLachlin CJ [37]).

15  For example the provision of the Canadian Environmental Protection Act, RSC, 1985, c16 which were at issue in Hydro-Québec above (n 13).

16  RJR-MacDonald above (n 14).

17  R v Swain, [1991] 1 SCR 933.

18  Malmo-Levine above (n 10) [74].

19  In re the Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919, [1922] 1 AC 191 [hereinafter Board of Commerce].

20  ibid 198–199.

21  Proprietary Articles Trade Association v AG Canada, [1931] AC 310 (PC) [hereinafter PATA].

22  The legislation being challenged was amendments to the Criminal Code and the Combines Investigation Act aimed at participating in agreements to restrain competition.

23  PATA above (n 21) 324.

24  ibid.

25  Reference re Validity of Section 5(a) of the Dairy Industry Act [1949] SCR 1 [hereinafter Margarine Reference].

26  ibid 49.

27  ibid.

28  ibid 50.

29  ibid.

30  ibid.

31  Starr v Houlden, [1990] 1 SCR 1366 at p. 1403.

32  Hydro-Québec above (n 13).

33  ibid [123].

34  ibid [122].

35  ibid [121].

36  Malmo-Levine above (n 10).

37  ibid [116].

38  This was a theme of Justice La Forest’s dissent in R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401 [hereinafter Crown Zellerbach], where the majority held that relevant sections of the Ocean Dumping Control Act, S.C. 1974-75-76, c. 55 were valid under the national concern branch of peace, order, and good government. See also his decision in Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3 and RJR-Macdonald above (n 14).

39  Crown Zellerbach above (n 38).

40  The Quebec Court of Appeal upheld the legislation that was at issue RJR-MacDonald (n 14) under the national concern doctrine.

41  Hydro-Québec above (n 13) [128].

42  ibid [131]. See the chapter by Eugénie Brouillet & Bruce Ryder in this Handbook for an explanation of the double aspect doctrine.

43  Jeremy Webber suggests that the fact that Hydro-Québec was decided by “the narrowest of majorities” (5-4) may be a sign “that the power is reaching its limit.” The Constitution of Canada: A Contextual Analysis (Hart, 2015), 161.

44  Morris Manning, “Criminalization by Regulation: The Outer Limits of Section 91(27) of the Constitution Act, 1867,” (2002) 13 Nat’l J Const L 309 at 310 quoting Albert Abel, “The Neglected Logic of 91 and 92,” (1969) 19 U of T LJ 487, 504.

45  Graeme Mitchell, “Developments in Constitutional Law: The 1997–98 Term—Activism and Accountability,” (1999), 10 SCLR 83, 158–159.

46  Firearms Reference above (n 12).

47  Mitchell above (n 45) 159.

48  AHRA Reference above (n 11).

49  Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [hereinafter the Charter].

50  These included human cloning, creating hybrids of animals and humans, and the purchase and sale of women’s and men’s reproductive functions.

51  These included manipulating, importing, exporting, and altering human reproductive material or in vitro embryos, and the combination of parts of the human genome with the parts of other species’ genomes.

52  AHRA Reference above (n 11) [20].

53  LeBel and Deschamps JJ for the plurality identified these as falling within provincial jurisdiction over hospitals in s. 92(7), civil rights in s. 92(13), and matters of a local nature in s. 92(16), [158].

54  ibid [237].

55  ibid [236].

56  Malmo-Levine above (n 10) [76].

57  AHRA Reference above (n 11) [238].

58  ibid [239].

59  ibid.

60  ibid [44]. Justice Cromwell split (some of) the difference between the factions by upholding three of the controlled activities as validly enacted under the criminal law power, while agreeing with LeBel and Deschamps JJ. that the rest fall within provincial legislative competence. ibid [287–288].

61  ibid [76].

62  ibid [51].

63  ibid [50].

64  Hoi Kong feels that the courts are up to the task. Kong suggests that the balancing tests that the judiciary has developed under, for example, the peace, order, and good government power and the general trade and commerce power have been applied by judges “without usurping legislative power or introducing an unacceptably high level of uncertainty into the constitutional framework.” H. Kong, “Subsidiarity, Republicanism, and the Division of Powers in Canada,” (2015) 45 RDUS 13, 45.

65  AHRA Reference above (n 11) [251].

66  This was a point of contention between the two four-justice factions. LeBel and Deschamps JJ followed the framework for considering the validity of parts of legislation in situations where the entire act is not being challenged, which was established in General Motors of Canada Ltd. v City National Leasing, [1989] 1 SCR. 641. In this approach the first consideration is the validity of the impugned provisions and therefore, in the case at hand, the potential public criminal law purposes of these specific provisions. The Chief Justice, however, determined that the parts of the legislation being challenged were so significant that, in effect, the validity of the entire act was at issue. ibid [17].

67  Canada, Royal Commission on New Reproductive Technologies, Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies (Minister of Government Services Canada, 1993).

68  If, for example, imprisonment necessarily involves deprivations of liberty, freedom of association, and other liberties, then these deprivations are anticipated by the extent to which the Constitution Act, 1867 anticipates the construction of federal penitentiaries in s 91(28) and prisons in s 92(6). I have called these “definitional deprivations” and expand on this point in Mark Carter, “Retributive Sentencing and the Charter: The Implications of Sauvé v. Chief Electoral Officer,” (2005), 10 Canadian Criminal Law Review 43.

69  Hogg above (n 3) 15-3.

70  See Mark Carter, “Federalism Analysis and the Charter,” (2011) 74 SKLR 5.

71  Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 [34].

72  Hodge v The Queen (1983) 9 App Cas 117 at 130. More recently, see Canadian Western Bank v Alberta 2007 SCC 22, [2007] 2 SCR 3 [hereinafter Canadian Western Bank] [30] “ … some matters are by their very nature impossible to categorize under a single head of power: they may have both provincial and federal aspects. Thus, the fact that a matter may for one purpose and in one aspect fall within federal jurisdiction does not mean that it cannot, for another purpose and in another aspect, fall within provincial competence … .”

73  RJR-Macdonald above (n 14).

74  Hydro-Québec above (n 13).

75  Alberta (Attorney General) v Moloney, 2015 SCC 51, [2015] 3 SCR 327.

76  Rothmans, Benson & Hedges Inc v Saskatchewan, 2005 SCC 13, [2005] 1 SCR 188 [15].

77  ibid [19].

78  ibid.

79  Nova Scotia Board of Censors v McNeil, [1978] 2 SCR. 662 [hereinafter McNeil].

80  ibid 691.

81  ibid 692.

82  ibid 699.

83  ibid Laskin CJ (dissenting), 683.

84  Bédard v Dawson [1923] SCR 681. The decision upheld Quebec legislation that allowed judges to order the closing of a “disorderly house”—where prostitution or gambling was carried on—as being within the province’s authority over property and civil rights under s 92(13). The objection to the statute’s validity was the fact that proof that a place was being used as a disorderly house was conviction for this offence under the Criminal Code.

85  Provincial Secretary of Prince Edward Island v Egan, [1941] SCR 396.

86  Ross v. Registrar of Motor Vehicles, [1975] 1 SCR 5. The decision upheld Ontario legislation imposing an absolute three-month driving suspension for anyone convicted of impaired driving and found that it was not in conflict with Criminal Code provisions allowing judges to allow convicted persons to drive at certain times (e.g., on the fact of the case, in the course of employment during the work week).

87  Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 SCR. 250 [hereinafter Goodwin].

88  ibid. [29].

89  ibid.

90  Chatterjee v Ontario (Attorney General), 2009 SCC 19, [2009] 1 S.C.R. 624.

91  McNeil above (n 79) 699.

92  Section 92(8) of the Constitution Act, 1867 gives the provincial legislatures jurisdiction over municipal institutions. Once created by provincial legislation, these institutions can exercise any of the provinces’ powers that are delegated to them.

93  Dupond v City of Montreal et al., [1978] 2 SCR 770, upholding bylaws that prohibited and provided for fines and imprisonments for public gatherings and parades that could “endanger tranquility, safety, peace or public order,” notwithstanding the bylaws’ similarities to Criminal Code provisions prohibiting breaches of the peace.

94  Westendorp v The Queen, [1983] 1 SCR 43, declaring ultra vires Calgary bylaws aimed at prostitution activities on city streets.

95  In the wake of the Supreme Court of Canada’s decision in R v Morgentaler, [1988] 1 SCR 30, which struck down the Criminal Code provisions relating to abortions, and with knowledge that Dr. Morgentaler intended to set up private abortion clinics in the province, the government of Nova Scotia passed legislation that prohibited the provision of certain kinds of medical services in private clinics. Regulations made under the legislation listed the prohibited procedures, one of which was non-emergency abortions. In R v Morgentaler, [1993] 3 SCR 463, the Court held that the legislation and the regulations were ultra vires the province as being in pith and substance criminal law.

96  Di Iorio v Warden of the Montreal Jail (note 9) but see Laskin C.J.’s dissent (with de Grandpré J.).

97  Goodwin above (n 87) [19].

98  ibid [28].

99  See Mark Carter, “Recognizing Original (Non-delegated) Provincial Jurisdiction to Prosecute Criminal Offences” (2007) 38 Ottawa Law Review 163.

100  Where Criminal Code proceedings were undertaken in the territories, the Attorney General was defined as the Attorney General of Canada.

101  R. v Hauser, [1979] 1 SCR 984; A.G. Canada v CN Transportation, [1983] 2 SCR 206; R. v Wetmore, [1983] 2 SCR 284.

102  Hogg above (n 3) 19-18; Guy Régimbald & Dwight Newman, The Law of the Canadian Constitution (Butterworths, 2013), 268.

103  William Henkel, “Case Comments and Notes: R v Hauser” (1980) 18 Alberta L Rev 265, 268.

104  This suggestion (or threat) was made by some provincial Attorneys General in response to what may have been the expectation that they would handle prosecutions under the long-gun registry provisions of the federal Firearms Act (S.C. 1995, c. 39). See Carter above (n 99).

105  Canadian Western Bank (n 72) [37].

106  ibid.