Constitutional Division of Powers Criminal Law and Transportation Law - Nov. 6, 2012.docx
University of Saskatchewan
Constitutional Division of Powers: Criminal Law and Transportation
Unlike all other areas of law, criminal law seems to be the one we identify with the feds.
S. 92 (27)
Criminal law is federal jurisdiction in Canada.
Gives almost universal control over criminal law to feds.
There is still a provincial role in criminal justice.
Enforcement of criminal code.
Provinces have the power to make decisions over investigations, charges and
prosecution of offences.
S. 92 (14) gives provinces powers over the “administration of justice.”
Areas of overlap!
Establishment of courts of criminal jurisdiction is included in provincial power by 92(14).
The creation of criminal courts is actually excluded from 91(27).
Criminal trials largely take place in provincial courts.
S. 92 (6) gives the provinces power over prisons as well, which hold offenders sentenced to
less than two years.
Defining criminal law
Federal government’s power over criminal law has proven difficult to define.
Searching for balance:
Margarine Reference (1951), where the law in question prohibited the manufacturing,
importation and sale of margarine.
JCPC (still hearing appeals in process before abolition in 1949) adopts the reasoning.
Rand’s reasoning hints at a third layer of criminal interpretation:
Not as restrictive as Haldane or as broad as Aken
Federal criminal power?
National standards over food and drug?
The court upheld the Labatt’s argument that criminal power should not be used to impose
the standards in the creation of beer.
National standards and tobacco: