Federal jurisdiction in relation to criminal law is found at section 91(27) of the Constitution Act, 1867, where the federal government is entrusted with powers over "the Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters." The scope of this power has been interpreted widely.

To determine whether a statute comes within s. 91(27), the Courts properly recognized that Parliament was not limited to the criminal law as it existed in 1867. Lord Atkin said in the P.A.T.A. case, "'Criminal law' means 'the criminal law in the widest sense'... It certainly is not confined to what was criminal by the law of England or of any Province in 1867." (at 544 of Constitutional Law of Canada, 8th edition). However, the fact that the subject matter of the legislation has historically been within the purview of the criminal law will be influential in determining the pith and substance of the matter. If legislation has historically been dealt with by the criminal law, provincial legislation regulating the matter will be "suspect on its face.": Morgentaler 1993, at 552 of 8th edition).

Early treatment of such legislation required the Courts to answer a relatively straightforward question: "The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?": P.A.T.A., supra. The Margarine Reference (p. 545) made an adjustment to the test by adding a futher criteria: "Is the prohibition then enacted with a view to a public purpose which can support it as being in relation to criminal law?" the Court asked. The Court then went on: "Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law...".

The last in the list, "morality" has been the focus of much of the constitutional litigation on this head of power. As Sopinka J. said in Morgentaler 1993 (p. 553), "it cannot be denied that interdiction of conduct in the interest of public morals was and remains one of the classic ends of the criminal law." Nonetheless, as Justice Ritchie said in Nova Scotia Board of Censors v. McNeil (p. 571), "morality and criminality are far from coextensive and it follows in my view that legislation which authorizes the establishment and enforcement of a local standard of morality ... is not necessarily 'an invasion of the federal criminal field'..." The federal power over criminal law is thus not absolute; valid prohibitions must be in pursuit of valid criminal law objectives, and not advance colourable regulatory purposes.

The Constitution also confers upon the provinces power to enact "regulatory crimes" in support of valid provincial regulatory objectives to be found in the catalog of provincial powers. Certain factors influence the court in the validity of this type of legislation. The prohibition contained in a provincial statute should be part of a comprehensive 'regulatory scheme' the whole of which, in consideration of the scheme's pith and substance, is intra vires the legislature. The Courts' analysis of what constitutes a "regulatory scheme" has been modified over the years, and I recommend a review of Ontario Home Builders at p. 510 to see the lengths to which the Court will go to find a 'regulatory scheme'. Where the prohibition is merely a means of enforcing another valid provincial purpose, this will also assist the court in upholding the legislation. Finally, where the regulatory scheme is created in response to some compelling emergency, a temporary prohibition may be upheld as intra vires the Province. In addition to materials contained in Constitutional Law of Canada, 8th edition, the following links might be of some interest:

• R. v. Morgentaler, 1993
• R. v. Swain
• RJR Macdonald Inc. v. Canada
• Starr v. Houlden
• Canada v. Canada (Commission of Inquiry into the Blood System)
• R. v. S.(S).
• Knox Contracting Ltd. v. Canada
• Criminal Code
• Ward v. Canada