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Case References

Style of causeRatio

Reference re Validity of Section 5 (a) Dairy Industry Act ("Margarine Reference"), [1949] SCR 1

Three part test to determine the validity of a criminal law provision:
** 1. The law must be a prohibition
** 2. The law must carry with it a penalty (penal sanction)
** 3. The law must be for a typical criminal purpose -- in this case: in relation to “public peace, order, security, health, and morality” (which requires knowing the pith and substance of the impugned law)

RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199

1. Regulating public health is a valid criminal law purpose
** Criminal law power is plenary (broad)

2. Federal legislation banning tobacco advertising and requiring health labels infringes on the freedom of expression -- s.2(b) of the Charter -- and cannot be saved by s.1 of the Charter.

R v Hydro-Québec, [1997] 3 SCR 213

Protection of the environment from harm is recognized as a valid criminal law purpose

Reference re Firearms Act, [2000] 1 S.C.R. 783

The finding of a valid crim purpose does not end the inquiry – to be classified as valid crim law, the purpose must be connected to the prohibition backed by a penalty

Nova Scotia Board of Censors v McNeil, [1978] 2 SCR 662

Provinces have broad powers to enact penal laws as long as they are primarily regulatory and preventative.
** There is a double aspect to morality: the province can legislate where local moral considerations are involved (objects must be within provincial jurisdiction and not in conflict with valid federal legislation)

Westendorp v The Queen, [1983] 1 SCR 43

Street prostitution is a federal criminal law matter.


This decision tree outlines a Canadian constitutional law "criminal law power" analysis. The legal test turns on whether the impugned legislation has a typical criminal purpose (and therefore within federal jurisdiction) or is safely anchored in s.92 of the Constitution Act 1987 (and therefore within provincial jurisdiction).

The cases referred to include: RJR Macdonald; R v Hydro-Québec; Reference re Firearms Act; Margarine Refererence; Re Nova Scotia Board of Censors v McNeil; Westendorp v The Queen; Rio Hotels




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