Constitution Act 1867 & Criminal Law Power

Section 91(27) of the Constitution Act, 1867: Criminal Law Power

• Section 91(27) of the Constitution Act, 1867 grants the federal government authority over criminal law.
• The test for criminal law involves both purpose and form.
• Purpose: The law must address a public evil, aiming to protect public interests (peace, order, security, health, morality).
• Form: The law must impose penal sanctions and target behaviors considered harmful to society.
• Criminal law often has a moral dimension, addressing morally wrong or harmful conduct.

Case Studies:

1. Reference re Validity of Section 5(a) of the Dairy Industry Act (1949)

• Federal Legislation: Prohibition on manufacturing, importing, or selling margarine not made from milk or cream.
• Upheld under Section 91(27)? No.
• Reasoning: The purpose of the law was economic protectionism for the dairy industry, not a public evil. The regulation was primarily aimed at protecting dairy producers, not protecting public interests.
• Key takeaway: Economic regulation, not criminal law, cannot be justified under Section 91(27).

2. Labatt Breweries of Canada Ltd v Attorney General of Canada (1989)

• Federal Legislation: Commodity standards for beer production and sale.
• Upheld under Section 91(27)? No.
• Reasoning: The law primarily focused on regulating the brewing industry, not addressing a public evil like consumer protection (food adulteration, false advertising)—which are usual objectives of criminal law. The regulation was categorized as economic rather than criminal.
• Key takeaway: Regulations for economic regulation don't fall under the definition of criminal law under Section 91(27).

3. Boggs v. R. (1992)

• Federal Legislation: Prohibition of driving with a suspended provincial driver's license.
• Upheld under Section 91(27)? No.
• Reasoning: The suspension of a driver's license could stem from provincial regulations (like unpaid taxes or judgments), not just criminal acts. The law was about administering provincial regulations, not a criminal offence.
• Key takeaway: Federal criminal law doesn't encompass the administration of provincial regulatory schemes.

4. Ward v. Canada (AG), 2002 SCC 17

• Federal Legislation: Prohibition of selling young harp seals and hooded seals in the Fisheries Act.
• Upheld under Section 91(27)? No.
• Reasoning: The purpose of the law was to manage fisheries, protect the Canadian fish markets from international backlash due to concerns over seal hunting. It wasn't about criminalizing the killing or sale of seals, which is related to public evil.
• Key takeaway: Laws targeting international trade or market management are not sufficient grounds to classify something as a criminal act under Section 91(27).

Summary of Key Principles

• Valid Criminal Law under Section 91(27): Must aim at preventing public evil or harmful conduct, threatening public peace, order, health, morality, or security. Crucial to understand the fundamental purpose of the law.
• Valid Criminal Law under Section 91(27): Must involve penal sanctions and focus on regulating harmful conduct or behaviors that society views as morally wrong.
• Economic Regulation vs. Criminal Law: Laws mainly for economic protectionism, trade regulation, or market management are typically not under Section 91(27). The line between economic and criminal matters is vital to recognizing.
• Provincial Jurisdiction: Administering provincial regulatory schemes (driver's licenses) is not under federal criminal law. Focus on the core purpose and function of the law.

Explore Section 91(27) of the Constitution Act, 1867, which empowers the federal government over criminal law in Canada. This quiz examines the purpose and form of criminal law, highlighting its role in protecting public interests. Engage with case studies to understand how this power is applied in real-world scenarios.