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November 25-26,3NN6 Lecture Notes 2013.docx

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McMaster University
Political Science
Greg Flynn

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 Federal Government - 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 jurisdiction? EXAMPLES 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 [1931] 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 [1951] 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 health; -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) a. Prohibition 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.  LEGAL TEST 1. PURPOSE IS TO PROTECT PUBLIC peace, order, security, health and morality 2. Prohibition 3. Punishment attached for violating this prohibition Firearms Reference 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. Angie ©
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