Started on: 11/25/2013 12:48:00 PM
C LASS N OTES FOR : 3NN6
McMaster University, Fall 2013
M ONDAY , NOVEMBER 25, 2013
**F EDERAL C RIMINAL P OWER
- Federally divided; both levels of jurisdiction have power over it section 92 gives the administration of
Justice to the PROVINCES, but 92.27 gives power to the CRIMINAL LAW AND PROCEDURE to the
- The Federal Government makes the law; it decides what is prohibited or not and leaves it up to the
provinces to enforce this law.
- When can the Fed government use its Criminal Law powers to intrude on areas that fall within provincial
Board of Commerce
Lord Justice Haldane
FACTS: Preventing the goods and price gauging in WWI era
Scope of Criminal Power: Things that are criminal are things that belong in the criminal law; domain
of criminal jurisprudence; things that were criminal at the time that Canada was created; where the
British seated Authority to Canada.
Something that was criminal would continue in this context; narrow interpretation;
BIG LIMIT ON CRIMINAL JURISDICTION
Proprietary Articles Trade Association v. A.G Canada  AC 310
FACT: Repudiated this domain of criminal justice theory and made it clear that it was not confined to
those that were deemed criminal in 1867.
New definition of Criminal Power: where the federal government prohibited an activity and attached a
penal consequence to it!
Is there anything that the federal government couldn’t define as Criminal?
We get the courts eventually achieving a midpoint in the MARGARINE CASE
BROAD CRIMINAL JURISDICTION
Margarine Reference  AC (BRITISH CITATION) 179
Appeals to the JCPC; this case was in the system before we limited appeals to the JCPC so therefore it
could carry to the JCPC, only new appeals in 1949 could not go through.
-The Fed gov’t had prohibited, manufacturing and sale of margarine; because it is injurious to public
-However in this case, its to protect the ‘dairy’ industries; and therefore prohibited the importation,
production, etc. of margarine.
-In this context of partially striking down the law; they said that the ban on the important is VALID
because its INTERNATIONAL TRADE, but the ban on the manufacturing and sale are struck down
because they do not fall within the domain of CRIMINAL LAW; established a new test for what is
acceptable criminal legislation;
-Yes, the criminal law making power exists! But there are criteria; (below)
Angie © McMaster University 1
Fall 2013 Started on: 11/25/2013 12:48:00 PM
b. Penal consequences
c. Public purpose (Peace, order, security, Health and Mortality); had to qualify as to something of
being in relation to criminal law; such as the protection and promotion of public peace, order,
security, health and morality. If it felt within one of those purposes; then it was a valid enactment of
the Federal law power.
1. PURPOSE IS TO PROTECT PUBLIC peace, order, security, health and morality
3. Punishment attached for violating this prohibition
Liberal government proposed certain gun control measures and implemented them. It included the
requirement that any firearm owner; whether handgun or lawn gun (either); you had to obtain a license
to OWN it and you had to RECORD or have RECORDED each and every weapon with the federal
government. Your name went on a list of firearm owners with a list of guns that you owned. The
concern of opponents wasn’t just that this was an expensive endeavor; but there was a concern that the
government would come along and confiscate these weapons.
-Alberta and other provinces refused to accept the firearms reference
-Alberta court of appeal who upheld as a matter of federal; other provinces like Saskatchewan etc. Were
not going to enforce the law; so the federal government would refer the question to the Supreme Court
Set out the three stage analysis (Prohibition? is there a punishment? Did it fill a criminal purpose?)
-Supreme court Gun control was directed at PUBLIC SAFETY and fell within the criminal to protect
public peace, morality and public health
--Alberta argued that it went beyond the criminal law making power;
Double aspect doctrine permits;
-Alberta argued that the law would not work that criminals would not register their guns and it would
force LEGAL gun owners to register the guns, jump through red tape, etc. The Supreme Court did not
care. The job is to determine the constitutionality of it; despite if it’s a good or a bad law.
RESULT The Federal Government was authorized under the law making power due to the
prohibition, punishment and purpose.
A number of provinces refused to enforce their scheme through their provincial powers;
The Province of Quebec set up their own gun registry;
The court in the firearms reference found that the firearms act was valid criminal law. The law was in
pith and substance about public safety, and used a prohibition with a penalty. The extensive regulatory
aspects were seen as secondary to the primary prohibition.
The offences were not defined by the regulatory body (restricted discretion)
Incidental effects on property and civil rights ok so long as the dominant character was intra vires
Fire arms were held to be a double aspect field (public safety and private property)
Fire arms are inherently dangerous (helped define the valid criminal law purpose)
Did not upset the balance of powers because provinces were free to enact laws in relation to the
property and civil rights of gun ownership
Broad Power that the federal government can use; the law has to state that “You shall not do this” and it
has to have a punishment attached to it and be for the protection of the public.
Provincial powers also have some criminal law making powers under section 92.