1. 1 CONSTITUTIONAL LAW 17 CRIMINAL LAW POWER: PROVINCIAL POWER TO PUNISH Shigenori Matsui

2. 2 INTRODUCTION S. 92(13) and s. 92(16) gave the province to regulate property and civil rights in the province and local matters within the province. S. 92 (15) gave the province the power to impose “punishment by fine, penalty or imprisonment.” What is the power of the province to punish?

3. 3 I POWER OF THE PROVINCE TO PUNISH OR REGULATE Bedard v. Dawson, [1923]

4. 4 Prince Edwards Island v. Egan [1941] Primarily, responsibility for the regulation of highway traffic, including authority to prescribe the conditions and the manner of the use of motor vehicles on highways and the operation of a system of licences for the purpose of securing the observance of regulations respecting these matters in the interest of the public generally, is committed to the local legislatures.

5. 5 O’Grady v. Sparling [1960] “The power of a provincial legislature to enact legislation for the regulation of highway traffic is undoubted... The legislation under attack here is part and parcel of this regulation. Rules of conduct on highways have been established by similar legislation in every province and the careless driving section is no different in character from the specific rules of the road that are laid down.

6. 6 Ross v. Ontario [1975] “It should now be taken as settled that civil consequences of a criminal act are not to be considered as "punishment" so as to bring the matter within the exclusive jurisdiction of Parliament.” In my view, it should be said in the present case that Parliament did not … purport to deal generally with the right to drive a motor vehicle after a conviction for certain offences.

7. 7 Reference re Nova Scotia Board of Censures v. McNeil, [1978] When the Act and the Regulations are read as a whole, I find them to be primarily directed to the regulation, supervision and control of the film business within the Province of Nova Scotia, including the use and exhibition of films in that Province. … This legislation is concerned with dealings in and the use of property (i.e. films) which take place wholly within the Province”

8. 8 The areas of operation of the two statutes are therefore fundamentally different on dual grounds. In the first place, one is directed to regulating a trade or business where the other is concerned with the definition and punishment of crime; and in the second place, one is preventive while the other is penal.

9. 9 Canada (AG) v. Montreal, [1978](Dupond case) It is now well established that the suppression of conditions likely to favour the commission of crimes fails within provincial competence In my view, the impugned enactments relate to a matter of a merely local nature in the Province within the meaning of s. 92(16) of the Constitution.

10. 10 Rio Hotel Ltd. v. New Brunswick, [1987] “It has long been settled that under s. 92(13) and (16) of the Constitution Act, 1867, the provinces are vested with legislative authority to regulate the conditions for the sale and consumption of alcohol within the province. … It is also well settled that in regulating the distribution of alcohol, a province may attach conditions to any licence with a view to providing for the "good government" of liquor outlets.

11. 11 Chatterjee v. Ontario [2009] I agree that the CRA was enacted "in relation to" property and civil rights and may incidentally "affect" criminal law and procedure without doing violence to the division of powers. The Constitution permits a province to enact measures to deter criminality and to deal with its financial consequences so long as those measures are taken in relation to a head of provincial competence and do not compromise the proper functioning of the Criminal Code including the sentencing provisions.

12. 12 III LIMITS ON THE POWER OF THE PROVINCE Wstendorp v. The Queen, [1983] It is … that s. 6.1 is of a completely different order from its preceding sections and, certainly, from all those succeeding it. It is specious to regard s. 6.1 as relating to control of the streets. If that were its purpose, it would have dealt with congregation of persons on the streets or with obstruction, unrelated to what the congregating or obstructing persons say or otherwise do. As the by-law stands and reads, it is activated only by what is said by a person, referable to the offer of sexual services… It is triggered only by an offer of sexual services or a solicitation to that end.

13. 13 What appears to me to emerge … a concurrency of legislative power, going beyond any double aspect principle and leaving it open to a province or to a municipality authorized by a province to usurp exclusive federal legislative power. 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'.

14. 14 R. v. Morgentaler [1993]

15. 15 IV RECONSIDERING THE LIMITS ON PROVINCIAL POWER To what extent, the province should be allowed to punish? Compare Rio Hotel and Westendorp