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The Criminal Law Power
By s. 91:27 of the Constitution Act, 1867, Parliament has exclusive
legislative authority in relation to “The Criminal Law” and “the Procedure
in Criminal Matters.” Parliament’s
criminal law power is wide. It is
not limited to matters traditionally criminal; it includes the power to
make new crimes. The criminal law
power is "necessarily an expanding field" (PEI v. Egan).
Criminal Law Purposes
For legislation to be sustained under the
criminal law power, there must be a relationship between the “legislative
purpose” and the “nature of the prohibited conduct”. The Margarine case explicitly identified
the common criminal law purposes that would sustain federal legislation
under the criminal law power: "Public peace, order, security, health,
morality: these are the ordinary though not exclusive ends served by that
law ..." Prof. Le Dain commented that the Margarine court:
emphasized that in determining whether legislation that is in
criminal law form has a bona fide criminal law purpose one must look at the
supposed "evil" to which it is directed. The conclusion against
validity in the Margarine case was based on a combination of two
factors: margarine was admitted not to constitute a hazard to health, and
the legislation was clearly concerned with the protection of dairy farmers
from competition.... [T]he issue is not whether particular conduct is
appropriate for criminal law prohibition, but whether the criminal law form
is being used to pursue an ultra vires legislative purpose.... [T]he nature
of the prohibited conduct is necessarily an important consideration in
reaching a conclusion on this issue.
[Duff and the Constitution (1974), 12 O.H.L.J. 261.]
Prof. Le Dain’s helpful
analysis – that it is “the nature of the prohibited conduct” that determines whether the criminal law power
can embrace it – leaves open an important question that still prompts
debate in the cases. Must there be some degree of harm that the conduct
risks causing to the public to activate Parliament’s criminal law power?
Justice Major held that the prohibited activity “must pose a significant,
grave and serious risk of harm to public health, morality, safety or
security before it can fall within the purview of the criminal law power;” RJR‑MacDonald Inc. v. A.-G. Can., [1995] 3 S.C.R. 199. Justice
Arbour disagreed: “[t]here is, as such, no constitutional threshold of harm
required for legislative action under the criminal law power;” Malmo-Levine
v. The Queen, [2003] 3 S.C.R. 571, at para 202.
The debate as to whether,
and if so, how much harm is required to nourish use of the federal criminal
law power can never be concluded in these terms . If harm is required,
attempts to quantify the minimum risk of harm necessary to engage the
criminal law power are bound to flounder. The concepts of harm and
benignity are simply too fleeting to provide a solid springboard to launch
constitutional power.
The real question that
must be answered is whether the dominant purpose of the challenged
legislation is protection of vital public interests (notwithstanding
ancillary impacts on private relationships). A positive answer to this
question will sustain use of the criminal law power. By contrast, if the dominant purpose of
the challenged legislation is to balance out private interests against each
other, as is done by the private law of property, contract, tort and
trusts, the legislation cannot be sustained under the criminal law power.
This form of analysis
implies that legal provisions to balance private interests against each
other will overlap considerably with protection of the public interest.
This will give rise to much opportunity for concurrent federal and
provincial action. The jurisprudence confirms the validity of this
observation. The cases contain many examples of the concurrent use of
criminal law and provincial regulatory powers. This is particularly true
concerning risky behaviours that attract the criminal law sanction, including
regulation of driving and dangerous products.
‘Colourable’ Legislation
One important limit on
Parliament’s criminal law power is the doctrine of colourability.
Parliament obtains no authority to enact statutes under the criminal law
power by casting statutes in the form of a prohibition and penalty for
breach – legislation which says
‘Thou shalt not, or else’. As we have seen, whether challenged legislation
is validly enacted under the criminal law power is judged by reference to
whether the object, purpose or effect of the legislation discloses a
genuine criminal law purpose. Federal legislation that disguises a
regulatory purpose behind the facade of prohibition and penalty will still
be unconstitutional if the activities regulated fall within the provincial
catalogue of powers.
This is the teaching of
the Insurance Corporation of British Columbia v. Unifund Assurance
Company, [2003] 2 S.C.R. 63
and Margarine cases.
These cases found in challenged federal statutes legislative purposes
to regulate the insurance and dairy industries, and struck down the
statutes for that reason.
In A.G. Canada v. A.G.
Alberta, [1916] 1 A.C. 588 the Privy Council considered the Dominion
Insurance Act which provided that no company or person should do
insurance business unless they had received a Dominion insurance licence.
The Insurance Act fortified the prohibition with a penalty for
contravention. The Privy Council ruled the Insurance Act was ultra
vires the powers of Parliament. Following that defeat Parliament
amended the Act, strengthening its enforcement with new provisions
in the Criminal Code. These created a criminal offence to do
insurance business without a Dominion licence. Counsel for Canada
defended the amended scheme on the ground that the earlier statute derived
coercive force from the Insurance Act, whereas the new legislation
created an indictable offence within the Criminal Code itself and
was therefore a valid exercise of Parliament’s criminal law power. Unpersuaded, the Court searched for “the
true nature and character” of the enactment. This was determined to be "the
regulation of the business of insurance within a province," a purpose
which lay beyond federal jurisdiction. The Criminal Code amendments
were struck down: A. G. Ontario v. Reciprocal Insurers, [1924] A.C.
328.
This theory was
elaborated and applied in the Reference
Re S.5(a) of the Dairy Industry Act (Margarine
Reference), [1949]
S.C.R. 1. The theory is that despite the presence of a prohibition under
penal sanction, statutes must have a true criminal law purpose to pass
constitutional muster. Courts will strike down “colourable” statutes –
federal legislation which tries to disguise regulatory purposes lying
within provincial jurisdiction by casting the statute as a prohibition
enforced by criminal sanction for breach.
Provincial Penalties
By section 92(15), the
provinces have legislative authority to impose punishment by imprisonment,
fine and other penalty. The provincial power to punish is essentially
ancillary to the regulatory jurisdiction conferred by the catalogue of
provincial powers in section 92.
Section 92(15) provides for the imposition of penalties to enforce
provincial prohibitions or provincial regulation of conduct. The power to
regulate or prohibit the conduct to which the penalty attaches must be
found elsewhere in the catalogue of powers s. 92 confers on provincial
legislatures. Section 92(15) confers no power to regulate or prohibit
conduct; it only confers power to enforce by penalty an otherwise valid
provincial prohibition or regulation.
Civil Remedies
May Parliament enforce by
civil remedy valid federal prohibitions or regulation of conduct? Generally
speaking, Parliament may enforce by civil penalty any prohibition or regulation
of conduct it enacts where the standard of conduct relates to a matter
coming within Parliament’s s. 91 powers, including the criminal law power.
This is to be distinguished from prohibiting risk creating activities
normally within provincial jurisdiction where enforcement of the
prohibition is by civil remedy for damages caused.
Parliament may set
standards of conduct pursuant to its catalogue of powers and enforce
obedience by civil remedy. Parliament may not set standards of conduct
relating to matters within provincial jurisdiction and enforce compliance
by civil remedy (or even by criminal penalty for that matter).
While easy to state in
the abstract, this principle causes difficulty in application. This is because tort law lies within the
exclusive legislative authority of the legislatures. The fundamental theory
of tort law is to impose reasonable standards of conduct to prevent the
creation of reasonably foreseeable risks of harm, and therefore to act as a
disincentive to risk-creating behaviour (Resurface Corp. v. Hanke, 2007
SCC 7, para 6).
It is sometimes difficult
to disentangle the creation of a duty of care in tort (take care not to...)
from a prohibition in criminal law (don’t...). Distinguishing between the
two is complex because the difference goes beyond form and language. As we
have seen, the difference lies in the subtle distinction between the
intention to balance out private relationships from the intention to
protect the public interest. Therein lies the difficulty: if the federal
prohibition has a valid criminal law purpose relating to protecting the
public, enforcement may be by civil action for damages caused or by
criminal sanction. If the federal regulation in essence balances out
private relationships, it cannot be saved by the addition of a criminal
penalty, nor would civil enforcement be valid either.
A related analytical
problem is to distinguish criminal prohibitions aimed at protecting the
public from risk creating behaviour, from civil duties of care that discourage
risk creating behaviour by making the originator of the risk pay.
The criminal law paradigm
essentially prohibits or regulates risky behaviours. The private law
paradigm essentially compensates for damages caused by risky behaviours.
Though the two paradigms run at tangents to each other, it remains true
that both criminal and private law systems intend to discourage risky
behaviours. Therein lies the
difficulty for constitutional analysis. The criminal law and private law
systems are not congruent, but they overlap in purpose. It is why risky
behaviours may be validly and concurrently embraced by both civil and
criminal law systems, each system authorized by separate constitutional
provisions.
Parliament may impose
civil remedies in damages for purposes other than enforcing regulation of
conduct deemed offensive to the public interest. Parliament may provide for restitution of
property stolen, or payment of damages in lieu. In this example, the criminal law power
extends to novel methods of enforcement, sentencing and punishment,
notwithstanding that these might overlap with civil damages in private law.
The essential requirement
for enactment of civil remedies pursuant to the criminal law power is
integration of the remedy into a valid federal regulatory scheme, the
central thrust of which is an intention to protect the public interest.
This is the fundamental inspiration of MacDonald v. Vapour Canada, supra.
and R. v. Zelensky, [1978] 2 S.C.R. 940. The integration may occur
by the remedy being a rational, functional
means of enforcing the regulation of conduct; it may occur by
elaboration of sentencing theory or otherwise. The crucial point is that
civil remedies may be part of regulatory schemes authorized under the
criminal law power so long as the object, purpose and effect of the scheme
as a whole relates to a valid criminal law purpose.
Administration of Justice
in the Province
By s. 92:14 of the Constitution
Act, 1867 provincial legislatures have exclusive legislative authority in
relation to “The Administration of Justice in the Province”. This power
entitles the provinces to establish police forces, prosecution services,
penitentiaries, parole services, and ancillaries agencies associated with
the administration of criminal justice in the province. This power is
elaborated in the cases that follow.
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