criminal-law power. contours of the area section 91(27): [parliament may pass laws that are, in pith...

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CONTOURS OF THE AREA

Section 91(27): [Parliament may pass laws that are, in pith and substance, in relation to “[t]he Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.”

Section 92(14): [The provincial legislatures may pass laws that are, in pith and substance, in relation to “[t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.”

Questions:

1. What laws can Parliament validly pass under it’s criminal-law power?

2. What laws can the provincial legislatures not pass, as falling under Parliament’s criminal-law power?

3. What laws can the provincial legislatures pass under their administration of justice power?

WHY DO WE CARE?

• The delineation of what is and what is not criminal law is important because the Criminal Code strikes a delicate balance between the public’s and the individual’s interests and includes carefully crafted safeguards to ensure individual rights.

• Too quickly allowing the criminal law to be created and prosecuted outside of this set procedure threatens individual civil liberties.

• In the context of our analysis, this extends to controlling attempts to exercise provincial law-making authority to:• create criminal law (usually argued under ss. 92(13) and (16)); and • provide for procedures outside of the traditional criminal law for

aeration of criminal-law related issues (usually argued under s. 92(14)).

CRIMINAL JUSTICE IN CANADA

Federal government:

• Police (RCMP)

• Makes substantive criminal law

• Makes procedural criminal law

• Appoints s. 96 judges

• Incarcerates prisoners serving two years or more

• Runs Parole Board of Canada

Provinces:

• Police (RCMP, Provincial, and Municipal Police Forces)

• Prosecute criminal offences

• Establish and maintain courts

• Incarcerate prisoners serving less than two years

• Run, in some cases, their own parole boards

• Administer probation

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FEDERAL CRIMINAL-LAW POWERThe federal criminal-law power provides Parliament with jurisdiction to make laws that prohibit and penalize conduct related to “public peace, order, security, health, [or] morality.” (Margarine Case [1949]).

A law enacted under Parliament's criminal-law power requires three things: a valid criminal purpose (as outlined above), a prohibition, and a penalty (Ref Re Firearms Act [2000]). A valid criminal purpose includes what might be considered eliminating or reducing “socially undesirable conduct” (Morgentaler v The Queen [1976]).

Criminal law is not limited to prohibiting outright the conduct in question but also prohibiting lesser conduct aimed at reducing the effect of the conduct in question (RJR-Macdonald v Attorney General of Canada [1995]).

Laws enacted under the criminal-law power extend to systems of licensing and registration where they are aimed at a legitimate purpose of s. 91(27) (Re Firearms Act [2000]). Further, it is not a condition precedent to enact a law under the criminal-law power that it be, in substance, aimed at or have the effect of reducing harm (R v Malmo-Levine).

CHANGES IN INTERPRETATION

• In 1922, in the Board of Commerce case, Viscount Haldane suggested that Parliament’s criminal-law power was limited to the criminal law as it existed in 1867.

• In 1931, in the PATA case, Lord Atkin directly contradicted this view, suggesting that all that was needed for a valid criminal law was a prohibited act followed by penal consequences, in effect preferring form over substance.

• In 1949, in the Margarine case, Justice Rand pulled back from Lord Atkin’s expansive view, imposing the additional requirement that the law ought to be aimed the ends of “[p]ublic peace, order, security, health, [or] morality.”

• This effectively left us with three requirements:1.legitimate purpose2.prohibition3.penalty

PATA CASE [1931]

Facts:

• Long version: Proprietary Articles Trade Association v Attorney General of Canada [1931]

• The Combines Investigation Act provided the Board with the power to investigate combines (i.e. a group of people or companies acting together for a commercial purpose) that might tend to lessen competition.

• Section 498 of the Criminal Code provided for prosecution of combines when remitted to the Attorney General of a province by the Board.

Question:

• Was section 498 intra vires Parliament as a valid exercise of Parliament’s criminal-law power?

PATA CASE [1931]

Lord Atkin [for the Court]:

• The criminal law is not limited to what it was in 1867:• “[The criminal law] certainly is not confined to what was criminal by

the law of England or of any Province in 1867.”

• Criminal law is merely that which is prohibited and penalized by Parliament:• “Criminal law connotes only the quality of such acts or omissions as

are prohibited under appropriate penal provisions by authority of the State. [T]he domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.

MARGARINE CASE [1949]

Facts:

• Parliament had previously, in 1886, outlawed the manufacture, import, and sale of margarine on the grounds of “health concerns”.

• Section 5 of the Dairy Industry Act continued this protection, but, by 1949, it was clear that margarine did not pose a health risk.

• As such, it was obvious that the new incarnation of the relevant provisions of the Dairy Industry Act were to protect that industry from margarine undercutting butter production.

Question:

• Was section 5 of the Dairy Industry Act intra vires Parliament as a valid exercise of Parliament’s criminal-law power?


Rand J:

• Margarine does not pose a risk to health. This has been conclusively proven. The aim of section 5 is protection of the dairy industry.

• For a valid exercise of the criminal-law power, there must be a prohibition and a penalty, but these requirements must also be accompanied by a valid public purpose.

• Valid public purposes include “[p]ublic peace, order, security, health, and morality.” This list is not exhaustive.

• In this case, the legislation does not enjoy a valid public purpose necessary to invoke Parliament’s criminal-law power:• [The true object of the legislation] is economic and the legislative purpose,

to give trade protection to the diary industry in the production and sale of butter; to benefit one group of persons as against competitors in a business […]”


• There is, here, no legitimate public purpose:• [In the PATA case], the essential nature of the legislation was not

the equalization of civil rights between competitors or promoting the interest of one trade as against another; it was the safeguarding of the public against the evil consequences of certain fetters upon free and equal competition. There is not like purpose here; there is nothing of a general or injurious nature to be abolished or removed: it is a matter of preferring certain local trade to others.”

• Section 5, therefore, cannot be sustained as valid on the basis of Parliament’s criminal-law power.

MORGENTALER V R [1976]

Facts:

• Section 251 of the Criminal Code outlawed abortion except in circumstances in which it is performed by a medical practitioner, in a hospital, approved by a board on the basis that the woman’s life is in danger.

• In the Margarine case, the waning of health concerns resulted in the law being held invalid. The hope that this would be transferrable to the case of abortion, given modern techniques, fueled a challenged to the Criminal Code.• “[T]he evil aimed at had substantially abated because of improved

medical and surgical procedures now known and practised […]”

Question:

• Was section 251 of the Criminal Code intra vires Parliament as a valid exercise of Parliament’s criminal-law power?


Laskin CJ [Judson and Spence JJ concurring]:

• Laws enacted under the criminal-law power are not limited to health concerns:• “[To find otherwise] is to attribute to Parliament a particular, indeed exclusive

concern […] with health, to the exclusion of any other purpose that would make it a valid exercise of the criminal law power. I am unable to accept this assessment […].”

• Laws enacted under the criminal-law power extend to socially undesirable conduct.• “What is patent on the face of the prohibitory portion of s. 251 is that Parliament

has in its judgment decreed that interference by another, or even by the pregnant woman herself, with the ordinary course of conception is socially undesirable conduct subject to punishment. That was a judgment open to Parliament in the exercise of its plenary criminal law power, and the fact that there may be safe ways of terminating a pregnancy or that any woman or women claim a personal privilege to that end, becomes immaterial.”


Laskin CJ [Judson and Spence JJ concurring]:

• The fact that there are exceptions to the prohibition (such as where the abortion is authorized by the Board and carried out in a hospital by a medical practitioner) does not mean that it is not a valid exercise of Parliament’s criminal-law power:• “Parliament may determine what is not criminal as well as what is,

and may hence introduce dispensations or exemptions in its criminal legislation.”

RJR-MACONALD INC V AG OF CANADA [1995]Facts:

• In passing the Tobacco Products Control Act, Parliament:• prohibited the display of brand names of tobacco products at sporting

or cultural events;• prohibited the use of trade marks on tobacco products;• required cautionary messages to be displayed on tobacco products;• exempted publications or broadcasts emanating from outside

Canada; and• imposed penalties for failing to comply with these requirements.

Question:

• Were the provisions of the Tobacco Products Control Act intra vires Parliament as a valid exercise of Parliament’s criminal-law power?

RJR-MACONALD INC V AG OF CANADA [1995]La Forest J [Lamer CJ and L’Heureux-Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ concurring on this issue]:

• The purpose of the Act is clearly public health aimed at reducing the incidents of addiction and consumption of tobacco products.• “Quite clearly, the common thread running throughout the [legislation] […] is

a concern for public health and, more specifically, a concern with protecting Canadians from the hazards of tobacco consumption.”

• “Health” is clearly a valid purpose of the exercise of Parliament’s criminal-law power:• “In the Margarine Reference, Rand J made it clear that the protection of

‘health’ is one of the ‘ordinary ends’ served by the criminal law, and that the criminal law power may validly be used to safeguard the public from any ‘injurious or undesirable effect’. The scope of the federal power is circumscribed only by the requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at a legitimate public health evil.”


• An absolute prohibition of the harmful conduct is not necessary:

• [T]he mere fact that it is not practical or realistic to implement a prohibition on the use or manufacture of tobacco products does not mean that Parliament cannot, or should not, resort to intermediate policy options.”

• Parliament can legislate intermediate prohibitions:• “In my view, once it is accepted that Parliament may validly legislate

under the criminal law power with respect to the manufacture and sale of tobacco products, it logically follows that Parliament may also validly legislate under that power to prohibit the advertisement of tobacco products and sales of products without health warnings.”


• Exemptions to the prohibitions are not critical:• “[T]he criminal law may validly contain exemptions for certain

conduct without losing its status as criminal law.”• “[B]road status-based exemptions to criminal legislation do not

detract from the criminal nature of the legislation. On the contrary, the exemption helps to define the crime by clarifying its contours.”

RJR-MACONALD INC V AG OF CANADA [1995]Major J [Sopinka concurring on this issue] dissenting on this issue:

• For the criminal law power to be enlivened the threat at which legislation aims must rise to a significant level:

• The threat at which legislation aims “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.”

• Only “[m]atters which pose a significant and serious risk of harm or which cause significant and serious harm to public health, safety or security can be proscribed by Parliament as criminal.”

• Lesser threats are to be regulated by other heads of federal jurisdiction or the provinces:

• “[L]esser threats to society and its functioning do not fall within the criminal law, but are addressed through non-criminal regulation, either by Parliament or provincial legislatures, depending on the subject matter of the regulation.”

RJR-MACONALD INC V AG OF CANADA [1995]Major J [Sopinka concurring on this issue] dissenting on this issue:

• Tobacco advertising does not rise to the required level:• “In my opinion, the Act is too far removed from the injurious or

undesirable effects of tobacco use to constitute a valid exercise of Parliament’s criminal law power.”

• “Since Parliament has chosen not to criminalize tobacco use, it is difficult to understand how tobacco advertising can somehow take on the character of criminal activity. […] The underlying ‘evil’ of tobacco use which the Act is designed to combat remains perfectly legal. Tobacco advertising is in itself not sufficiently dangerous or harmful to justify criminal sanctions.”

REFERENCE RE FIREARMS ACT [2000]

Facts:

• Parliament amended the Criminal Code by enacting the Firearms Act. That Act:• implemented a system whereby eligibility to hold a firearm would

be granted (this included safety course, criminal record checks, etc);

• if eligible, provided that persons could register firearms; • required all firearms to be registered;• made it an offence to fail to and provided penalties for failing to

comply with these requirements. Question

• Were the provisions of the Criminal Code intra vires Parliament as a valid exercise of Parliament’s criminal-law power?


The Court:

• Always start with a pith and substance analysis:• Purpose• Effect

• In aid, reference may be made, in evidence, to extrinsic materials (Hansard, government publications, etc).

• The court may also make reference to the “mischief” at which the legislation is directed.

• Arguments that a law will be ineffective or inefficacious in achieving its purpose is not relevant.

• “Where the effects of the law diverge substantially from the stated aim, it is sometimes said to be colourable.”


Purpose:

• The preamble of the Firearms Act suggest that its aim is criminal:• “The licensing, registration and authorization provisions delineate

the means by which people can own and transfer ordinary firearms ‘in circumstances that would otherwise constitute [a criminal] offence.’”

• References in Hansard suggest that its aim is public safety.

• Government journal articles also suggest a public safety aim.

Mischief:

• The mischief at which the Firearms Act is directed is “the problem of the misuse of firearms and the threat it poses to public safety.”


Effects:

• The effects will be that those who pose a threat to public safety (on account of criminal records) will not be eligible. The effects will also be that those using firearms will be safer. • “[T]he effects o the law suggest that its essence is the promotion of

public safety through the reduction of the misuse of firearms, and negate the proposition that Parliament was in fact attempting to achieve a different goal such as the total regulation of firearms production, trade, and ownership.

Conclusion

• “[V]iewed from its purpose and effects, the Firearms Act is in ‘pith and substance’ directed to public safety.”


The Court:

• Laws validly enacted pursuant to the criminal law are found elsewhere than the Criminal Code.

• To be valid, “the purpose must be connected to a prohibition backed by a penalty.” • Here, that was manifestly the case. If the firearm is unregistered, its

possession is a violation of the Criminal Code and subject to a penalty.

• An outright prohibition on guns is not necessary:• “[P]arliament may use indirect means to achieve its ends. A direct and

total prohibition is not required.”

• Exemptions do not result in a law not being criminal:• “[E]xemptions from a law do not preclude it from being prohibitive and

therefore criminal in nature.”


The Court:

• The eligibility and registration provisions can neither be severed (as it cannot be said that Parliament would have enacted the prohibition in their absence) nor can it be said that are not, on their own, valid exercises of Parliament’s criminal-law power (most likely under ancillary powers doctrine):• “These interconnections demonstrate that the registration and

licensing portions of the Firearms Act are both tightly linked to Parliament’s goal in promoting safety by reducing the misuse of any and all firearms. Both portions are integral and necessary to the operation of the scheme.”


The Court:

• The Firearms Act does not upset the distribution of power in our Constitution:• This follows form a pith and substance analysis that confirms its

constitutionality.

• The criminal law is not confined to prohibiting immoral acts (eg PATA case).

R V MALMO-LEVINE [2003]

Facts:

• The validity of provisions of the Controlled Drugs and Substances Act were challenged for criminalizing the possession of marijuana.

• The argument was advanced that the harm associated therewith was not of a sufficient magnitude to enliven Parliament’s criminal-law power.


Gonthier and Binnie JJ:

• While the health effects/concerns over marijuana have diminished, they have not disappeared:• “It seems clear that the use of marijuana has less serious and permanent

effects than was once claimed, but its psychoactive and health effects can be harmful, and in the case of members of vulnerable groups the harm may be serious and substantial.”

• The argument that the health concerns associated with marijuana use are limited to users is not consequential, as it is legitimate for Parliament to seek to protect vulnerable members of society, such as youth and chronic users, and those affected by the use:• “[T]he control of a ‘psychoactive drug’ that ‘causes alteration of mental

function’ clearly raises issues of public health and safety, both for the user as well as for those in the broader society affected by his or her conduct.”


Gonthier and Binnie JJ:

• Further, conclusive proof of harm is not necessary for Parliament to invoke its criminal-law power:• “Parliament is also entitled to act on reasoned apprehension of

harm even if on some points ‘the jury is still out.’”


Arbour J:

• Parliament’s power to pass laws in relation to the criminal-law is broad:• The scope of the federal power to create criminal legislation with

respect to health matters is broad, and is circumscribed only by the requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at a legitimate public [in this case] health evil.”

• There is no required level of harm:• “There is, as such, no constitutional threshold of harm required for

legislative action under the criminal law power.

R V DEMERS [2004]

Facts:

• Appellant has down syndrome.

• Declared unfit to stand trial, confined for a period of three months, and returned to parents on conditions.

• The law provides that every year a review is to be conducted of those deemed unfit to stand trial to see if they have become fit.

• “The result of the combined operation of [the provisions] is that an accused found unfit to stand trial remains in the “system” established under Part XX.1 until either (a) he or she become fit to stand trial or (b) the Crown fails to establish a prima facie case against him or her.”

• “The appellant contends that once it has been established that a person will not be tried because of a permanent unfitness to stand trial, the circumstances no longer constitute a matter within Parliament’s criminal law power.”

R V DEMERS [2004]

Iacobucci and Bastarache JJ:

• Those found not criminally responsible are tried and found not guilty. Their continued custody pursuant to criminal law is permitted only if they are dangerous (i.e. pose a risk of committing future crimes).

• Those who are unfit for trial have not been tried. They are awaiting trial until such a time as they are fit. Their continued custody pursuant to federal criminal law is permitted as they are awaiting trial. This flows from Parliament’s power to legislate the procedural criminal law.

• Parliament’s criminal-law power extends to the criminal justice process and protection against possible infractions of the Criminal Code.

• Without providing much explanation why, Iacobucci and Bastarache JJ uphold the detention of those permanently unfit to stand trial (while later striking it down on Charter grounds).

R V DEMERS [2004]

LeBel J:

• The courts have determined that preventative detention is constitutional, providing that it relates in some way to potential breaches of federal criminal law. Thus, when an individual is found not criminally responsible, s/he can be detained as posing a risk of breach of a provision in the Criminal Code.

• It must also be the case that detention is constitutional, on the basis of Parliament’s jurisdiction over the procedural criminal law, where the accused is temporarily unfit to stand trail. S/he is still “in” the criminal justice process.

• However, the same does not apply to those deemed permanently unfit to stand trial. • “[O]nce a court has determined that the accused is permanently unfit to

stand trial, the jurisdiction shifts to the provincial governments under their health power.”

R V DEMERS [2004]

LeBel J:

• “Part XX.1 is predicated on an accused found unfit to stand trial becoming fit for trial. […] However, where the accused is permanently unfit to stand trial, the overriding goal of Part XX.1 is absent and Parliament loses jurisdiction.”

• The Charter demands that:• “[t]he continued supervision, detention or conditional liberty of a

permanently unfit accused can only relate to the mental health of the individual, and this is considered to be within the provincial jurisdiction under ss. 92(7), 92(13), and 92(16).

• “Consequently, I find that Parliament is not competent under its criminal procedure jurisdiction to legislate for the supervision, treatment, detention or control of permanently unfit accused.”

• Only the provinces are competent to pass laws relating to such issues.

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PROVINCIAL REGULATORY AUTHORITY

• You will recall that, broadly speaking, provincial legislatures have the power to make laws in relation to provincial undertakings (s. 92(10)), property and civil rights in the Province (s. 92(13)), and matters of a merely local or private nature (s. 92(16)).

• This means that most provincial regulations aimed at the local level will be assumed to be characterizable as laws, in pith and substance, in relation to one of these heads of jurisdiction.

• Parliament’s criminal-law power comes into play when an assertion is made that the provincial law is really one, in pith and substance, in relation to s. 91(27). In other words, it is a colourable attempt to pass what is, in pith and substance, a law in relation to s. 91(27) under a provincial head of jurisdiction.

• The following cases elucidate when provinces may have acted ultra vires.

PROVINCIAL REGULATORY AUTHORITYBroadly speaking, provincial legislatures can pass regulatory laws under ss. 92(10), (13), and (16). However, laws that are, in pith and substance, in relation to the criminal law will be ultra vires the Province.

Where the purpose of the law is to reduce or eliminate conduct that threatens “public peace, order, security, health, [or] morality,” it will generally be invalid. Also, where the effects of the law are to impose a prohibition followed by a penalty, it will be suspect. However, the mere presence of a prohibition and penalty does not always result in invalidity. (Attorney General of Canada v Montreal [1978]; Allan Singer v Attorney General of Quebec [1988]). Such laws have been upheld where they are preventative (i.e. they seek to prohibit behaviour that may lead to crime) (Bédard v Dawson [1923]; Attorney General of Canada v Montreal [1978]) or clearly fall within provincial jurisdiction (Allan Singer v Attorney General of Quebec [1988]).

However, where the effect of a law is to prohibit and punish behaviour in a public place, it will often be a criminal law and ultra vires the Province (Westendorp v R [1983]). Temporary laws, enacted to preserve public order, will generally be upheld, despite applying to public spaces (Attorney General of Canada v Montreal [1978].

NS BOARD OF CENSORS V MCNEIL [1978]Facts:

• Theatres and Amusements Act (NS) purported to grant authority to Amusements Regulation Board to prevent films from being shown in Nova Scotia.

• The Board exercised this power to prohibit “Last Tango in Paris” from being shown in theatres in the Province.

• In this way, the Board did not punish showings but prevented the film from being shown in theatres.

Question:

• Was this Board’s acts intra vires the Province?

NS BOARD OF CENSORS V MCNEIL [1978]Chief Justice Laskin [Judson, Spence, and Dickson JJ concurring]

dissenting:

• Laws that are, in pith and substance, in relation to regulating morality are ultra vires the Province:• “The determination of what is decent or indecent or obscene in conduct in a

publication, what is morally fit for public viewing, whether in films, in art or in a live performance is […] within the exclusive power of the Parliament of Canada under its enumerated authority to legislate in relation to the criminal law.”

• Examples:• Switzman v Elbing: invalidated provincial law making it unlawful to print,

publish or distribute newspaper or written material promoting communism.• Harrell v Montreal: invalidated by-law making it unlawful to display pictures

showing nudity on newsstands without prior approval from Chief of Police.• R v Hayduck: invalidated provincial law making it unlawful for a man to

register at a hotel with a woman that is falsely held out to be his wife.

NS BOARD OF CENSORS V MCNEIL [1978]Chief Justice Laskin [Judson, Spence, and Dickson JJ concurring] dissenting:

• This case could be distinguished from Bédard v Dawson:• “Bédard v Dawson, which was heavily relied on by the appellant,

does not assist the provincial contention because there, in the view of this Court at the time, the challenged provincial legislation related to the occupation and enjoyment of premises, and it was distinguished on that account from the wider legislation that was invalidated by this Court in Switzman v Elbling.”


• To say that the law is preventative and not punitive is a distinction without difference:• “It was contended […] that the Nova Scotia Board was merely exercising a

preventative power, no penalty or punishment being involved, no offence having been created. […] [I]t is ingenuous to say that no offence is created when a licensee who disobeyed the order would be at risk of a cancellation of his licence and risk a penalty and any one else who proposed to exhibit the film publicly would likewise be liable to a penalty. Indeed, the contention invites this Court to allow form to mask substance and amounts to an assertion that the provincial legislature may use the injunction or prohibitory order as a means of controlling conduct or performances or exhibitions, doing by prior restraints what it could not do by defining an offence and prescribing post facto punishment. The short answer […] is that given by the Privy Council in Attorney-General of Ontario v Canada Temperance Federation, at p. 207 where Viscount Simon noted that ‘to legislate for prevention appears to be on the same basis as legislation for cure.’”


• Provincial laws can touch on moral considerations, but they must be truly related to a head of provincial power to be valid:• “It does not follow […] that provincial legislative authority may not

extend to objects where moral considerations are involved, but those objects must in themselves be anchored in the provincial catalogue of powers and must, moreover, not be in conflict with valid federal legislation.”

• The law must be, in pith and substance, in relation to a head of provincial jurisdiction.• “[A] tenuous connection with property will not save provincial

legislation which is paramountly directed to religious or moral observance.

NS BOARD OF CENSORS V MCNEIL [1978]Ritchie J [Martland, Pigeon, Beetz and de Grandpré JJ

concurring]:

• The law is, in pith and substance, in relation to property in the Province:• [T]he Theatres and Amusements Act is not concerned with creating

a criminal offence or providing for its punishment, but rather in so regulating a business within the Province as to prevent the exhibition in its theatres or performances which do not comply with the standards of propriety established by the Board.”

• A provincial law that is preventative is intra vires the Province:• “Even if I accepted the view that the impugned legislation is

concerned with criminal morality, it would still have to be noted that it is preventative rather than penal and the authority of the Province to pass legislation directed towards the prevention of crime is illustrated in Bédard v Dawson […].”

RIO HOTEL V LIQUOR LICENSING BOARD [1987]Facts:

• Liquor Control Act (NB) purported to grant authority to Board to attach conditions to the granting of liquor licenses.

• The Board exercised this power to limit the degree of nudity permissible on premises holding a liquor license.

• In this way, the Board did not punish nudity but prevented unlawful nudity.

Question

• Was the Board’s act intra vires the Province?

RIO HOTEL V LIQUOR LICENSING BOARD [1987]Dickson CJ [McIntyre, Wilson and LeDain JJ]:

• Section 92(13) and (16) provide the Province with the power to attach conditions to the granting of liquor licences.

• There is no conflict with federal law.• “Although there is some overlap between the licence condition

precluding nude entertainment and various provisions of the Code, there is no direct conflict. It is perfectly possible to comply with both the provincial and federal legislation.”

• The fact that no penal consequences exist seems material:• “Moreover, the sanction for breach of the provincially-imposed

licence conditions is suspension or cancellation of the liquor licence. No penal consequences ensue for the nude entertainer or for the holder of the licence.”

RIO HOTEL V LIQUOR LICENSING BOARD [1987]Estey J [Lamer J concurring]:

• The fundamental question is how far a province may go in regulating. It can regulate those things closely related to the business within the province, but it cannot exceed them and, in doing so, enact laws that are, in pith and substance, in relation to Parliament’s criminal-law power. • “[P]rovincial regulation [that] reaches outside premises owned or

controlled by a provincial licensee [will risk being invalid]. In that circumstance, the province again must find a valid provincial regulatory program and must confine the offences created in support of that program to those which are reasonably necessary for that purpose.”

AG OF CANADA V MONTREAL [1978]

Facts:

• Montreal, under delegated authority from the Quebec Legislature, passed By-law 3962.

• The By-law empowered the Executive Committee to prohibit assemblies, parades, or gatherings in circumstances in which “there are reasonable grounds to believe that [their] holding […] will cause tumult, endanger safety, peace or public order.”

• The Executive Committee passed an ordinance prohibiting assemblies, parades, or gatherings for thirty days.

Question:

• Was this order intra vires the Province?


Beetz J:

• Suppression of conditions likely to lead to crime is intra vires the province:• “It is now well established that the suppression of conditions likely

to favour the commission of crimes falls within provincial competence.”

• This by-law is merely preventative:• “These are punitive but essentially preventative measures, the

purpose and effect of which is the prevention of conditions conducive to breaches of the peace and detrimental to the administration of justice.”

• “[Section] 5 and the Ordinance […] are aimed at prevent assemblies, parades and gatherings which have not yet taken place. There are in the Code no preventative measures similar to s. 5 of the By-law.”


Beetz J:

• Section 5 and the ordinance are intra vires the Province as falling within s. 92(13)—matters that are merely local or private in nature:• “[Section 5 and the ordinance] are on their face regulations of a

merely local character.”


Laskin CJ [Spence and Dickson JJ concurring] dissenting:

• The only local aspect of s. 5 and the ordinance is that it is limited to Montreal, but such limitations have never been sufficient to cause a law to fall within s. 92(16).• “The only local or private aspect is, in my opinion, the territorial

ambit of the By-law and of the Ordinance, and this has never been a test of constitutional validity.

• Laws concerned with preserving the peace and public order fall within federal jurisdiction:• “The provision is so explicitly directed to breach of the peace and to

the maintenance of public order as to fall squarely within exclusive federal authority in relation to the criminal law.”


Laskin CJ [Spence and Dickson JJ concurring] dissenting:

• Provinces do not enjoy an emergency power like Parliament’s:• “There is no accretion to provincial legislative authority to enable it to

deal with apprehended riots or public disorder merely because the provincial government or delegated municipal authorities are of the opinion that preventative measures must be taken.”

• The mere fact that provincial law complements the Criminal Code does not make it valid.• “This is a proposition that flies in the face of the scheme of

distribution of legislative power; it is destructive of the principle of exclusiveness as expressed; and it is not supported by any authorities. […] [A] Province cannot legislate to reinforce the federal criminal law: Johnson v Attorney General of Alberta.”

ALLAN SINGER V AG OF QUEBEC [1988]

Facts:

• Section 58 of the Charter of the French language read: “Public signs and posters and commercial advertising shall be solely in the official language (French).”

• Notwithstanding this, the Office de la langue française had the delegated authority to permit public signs and posters to be in French and another language or solely in another language.

Question:

• Was s. 58 intra vires the Province?

ALLAN SINGER V AG OF QUEBEC [1988]

The Court:

• The regulation of language is not an independent subject of provincial jurisdiction. Thus:• “[i]n order to be valid, provincial legislation with respect to

language must be truly in relation to an institution or activity that is otherwise within provincial legislative jurisdiction.”

• The Province does have jurisdiction to regulate commerce within the Province, and this extends to regulating the use of language in that context.

• The presence of a mere prohibition with penal consequences does not itself result in invalidity of provincial legislation.

WESTENDORP V R [1983]

Facts:

• City of Calgary enacted By-law:• prohibiting someone from being on a street for the purpose of

prostitution;• prohibiting approaching someone on the street for the purpose of

prostitution; and• imposing a fine and imprisonment for violating the foregoing.

Question:

• Was this By-law intra vires the Province?

WESTENDORP V R [1983]

Dickson CJ [for the Court]:

• The by-law is, in pith and substance, in relation to the criminal law:• “To remain on a street for the purposes of prostitution or to

approach another for that purpose is so patently an attempt to control or punish prostitution as to be beyond the question. […] There is no property question here, no question even of interference with the enjoyment of public property let along private property.”

• Accepting otherwise would upset the distribution of powers:• “If a Province or municipality may translate a direct attack on

prostitution into street control through reliance on public nuisance, it may do the same with respect to trafficking in drugs. And, may it not, on the same view, seek to punish assaults that take place on city streets as an aspect of street control!”

PROVINCIAL REGULATORY AUTHORITYBroadly speaking, provincial legislatures can pass regulatory laws under ss. 92(10), (13), and (16). However, laws that are, in pith and substance, in relation to the criminal law will be ultra vires the Province.

Where the purpose of the law is to reduce or eliminate conduct that threatens “public peace, order, security, health, [or] morality,” it will generally be invalid. Also, where the effects of the law are to impose a prohibition followed by a penalty, it will be suspect. However, the mere presence of a prohibition and penalty does not always result in invalidity. (Attorney General of Canada v Montreal [1978]; Allan Singer v Attorney General of Quebec [1988]). Such laws have been upheld where they are preventative (i.e. they seek to prohibit behaviour that may lead to crime) (Bédard v Dawson [1923]; Attorney General of Canada v Montreal [1978]) or clearly fall within provincial jurisdiction (Allan Singer v Attorney General of Quebec [1988]).

However, where the effect of a law is to prohibit and punish behaviour in a public place, it will often be a criminal law and ultra vires the Province (Westendorp v R [1983]). Temporary laws, enacted to preserve public order, will generally be upheld, despite applying to public spaces (Attorney General of Canada v Montreal [1978].

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PUBLIC INQUIRIES

• The milieu in which the border between Parliament’s monopoly on the substantive and procedural criminal law and the provinces’ power to make laws in relation to the administration of justice has arisen most commonly is situations in which the provinces have instituted public inquiries.

• Such inquiries test this boundary, because they will be invalid insofar as they create an alternative criminal justice process that operates outside of the ambit of federal law on the substantive and procedural criminal law.

ADMINISTRATION OF JUSTICE

Provincial legislatures can pass laws giving rise to public inquiries that relate to criminal activity (Di Iorio v Montreal Jail Warden [1978]).

They cannot, however, infringe upon the exclusive jurisdiction of Parliament; or, in other words, they cannot violate the the interjurisdictional immunity of a federal undertaking such as the RCMP (AG of Quebec v AG of Canada [1979]).

They also cannot investigate specific individuals for specific crimes (Starr v Houlden [1990]). To do so would be to enact a law that is, in pith and substance, in relation to Parliament’s criminal-law power and, therefore, ultra vires the Province.

DI IORIO V MONTREAL JAIL WARDEN [1978]Facts:

• The Quebec Police Act provided the Lieutenant-Governor with the power to institute public inquiries into the police forces in Quebec.

• An inquiry into organized crime in the police forces was launched.

• Nicola Di Iorio and Gerard Fontaine failed to attend the Quebec Police Commission and testify and were, therefore, sentenced to one year in jail.

• The appellants argued that their incarceration pursuant to Quebec law was ultra vires the Province as falling within the Parliament’s jurisdiction over the criminal law.

DI IORIO V MONTREAL JAIL WARDEN [1978]Laskin CJ [De Grandpré J concurring] dissenting:

• Section 92(14) should be limited to “the Constitution, maintenance and organization of Provincial Courts.” • It should not be extended to allow public inquiries.

• That power, rather, should be limited to other heads of jurisdiction.• For example, on the basis of Citizen’s Insurance v Parsons,

provincial legislatures could institute inquiries into a specific trade in the Province.

• Section 92(14) would only be relied upon if the inquiry was into the courts themselves.

• “An administrative, quasi-judicial coercive investigation at large into crime has nothing to do with the ‘Administration of Justice in the Province.’”

DI IORIO V MONTREAL JAIL WARDEN [1978]Dickson J [Martland, Judson, Ritchie, and Spene JJ concurring]:

• The “Administration of Justice” should be given a broad interpretation to include, generally speaking, criminal justice.

• This does not, however, extend to allow the provinces to establish inquiries into specific crimes.

• In this case, the inquiry did not violate Parliament’s power in s. 91(27):• No criminal prosecution of individuals• No investigation into a particular crimes (only organized crime

generally)• No trial• The inquiry’s role is merely investigative and reporting• No punishment• No alteration or creation of crimes

AG OF QUEBEC V AG OF CANADA [1979]

Facts:

• The Keable Commission was established to examine police force behaviour during the October Crisis in which the FLQ kidnapped government officials.

• The Commission was to report and make recommendations to prevent the repetition of mistakes in the future.

• The Solicitor General of Canada was served with subpoenas demanding documents concerning the RCMP.

• The Solicitor General refused to comply, and the Attorney-General of Canada challenged the commission’s scope as ultra vires the Province.

AG OF QUEBEC V AG OF CANADA [1979]

Pigeon J [Martland, Ritchie, Dickson and Beetz JJ concurring]:

• While the Province has the power to order an inquiry into alleged acts of the RCMP, the extent to which this investigation can be carried has constitutional limits.

• In this respect, the exercise of the administration of justice by the province to institute an inquiry does not permit it to “intrude into the management” of the RCMP, “a branch of of the Department of the Solicitor General.”

• Provincial authorities cannot “pursue the inquiry into the administration and management of the [RCMP] force.”

• The Commission’s mandate does “not contemplate an inquiry into criminal acts but into the methods [regulations and practices] used by the police forces. Those are essential aspects of their administration and therefore, to the extent that those words relate to the RCMP, what they purport to authorize is beyond provincial jurisdiction to inquire into.”

STARR V HOULDEN [1990]

Facts:

• Inquiry into Starr (an individual) and Tridel Corporation’s dealings with public officials, including potential kickbacks and bribes.

Lamer J [Dickson CJ, La Forest, Sopinka, Gonthier, and Cory JJ]

• Specific individuals cannot be investigated as it would circumvent the criminal justice system:• “[T]he inquiry process cannot be used by a province to investigate

the alleged commission of specific criminal offences by named persons. The use of the inquiry process in that way, having regard for the ability to coerce those named individuals to testify, would in effect be circumventing the criminal procedure which is within the exclusive jurisdiction of Parliament.”

STARR V HOULDEN [1990]

Lamer J [Dickson CJ, La Forest, Sopinka, Gonthier, and Cory JJ]:

• “[T]he pith and substance of a commission must be firmly anchored to a provincial head of power, and […] it cannot be used either purposely or through its effect, as a means to investigate and determine the criminal responsibility for specific individuals for specific offences.”

• Here, individuals were named and the inquiry was investigating the facts that would support the commission of specific offences under the Criminal Code.

• In conclusion, “the inquiry before this Court is ultra vires the province because it is in pith and substance a substitute investigation and preliminary inquiry of named individuals for a specific criminal offence.”

criminal-law power. contours of the area section 91(27): [parliament may pass laws that are, in pith...

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