The criminal law power is a legislative power allocated to Canada’s federal government via the Constitution Act, 1867. More specifically, section 91(27) of this Act gives Parliament exclusive jurisdiction over “The Criminal Law, except the Constitution of the Courts of Criminal Jurisdiction, but including Procedure in Criminal Matters.”[2] This means that legislation that falls within the scope of section 91(27) must come from the federal Parliament (and not provincial legislatures) to avoid being struck down as ultra vires — i.e. beyond the responsibilities legally allocated to the government.[3]
The criminal law power is notably broad.[4] According to the Supreme Court’s landmark judgment in the Margarine Reference, section 91(27) extends to any legislation that contains a prohibition, a penalty, and a valid criminal law purpose. In that case, for example, the Court held that a federal ban on the manufacture and sale of margarine was ultra vires, because the true purpose of the ban — protection of the dairy industry — didn’t constitute a valid criminal law purpose.[5]
In general, however, all elements of the criminal law power test (prohibition, penalty, and purpose) have been interpreted liberally by the courts. Prohibitions can include exemptions[6] and regulations,[7] and while the list of valid purposes was originally framed to include “public peace, order, security, health, [and] morality,”[8] this is a non-exhaustive list — neither “frozen in time [n]or confined to a fixed domain.”[9] As a result, recent decades have seen the emergence of new valid purposes alongside novel issues, such as environmental protection or the reduction of tobacco use through restrictions on advertising.[10]
Jurisdictional disputes will sometimes come up between the federal and provincial governments around the criminal law power. This is because section 92 of the 1867 Act sets out areas of provincial jurisdiction which can sometimes conflict or overlap with the federal criminal law power. Examples include section 92(13), which addresses “Property and Civil Rights in the Province,”[11] and section 92(16), which addresses “Generally all Matters of a merely local or private Nature in the Province.”[12] Where it is unclear if a law falls under one of these sections or section 91(27), courts will resolve the lack of clarity by assessing the pith and substance of the legislation to determine 1) what the dominant characteristic of the law is, and 2) which head of power that characteristic falls under.[13]
Although Parliament has a monopoly over the creation of criminal law and procedure per section 91(27) of the 1867 Act, it is important to point out that provincial governments continue to play an important role in the implementation of criminal law. The administration of justice, for example, is placed within the purview of the provinces via section 92(14),[14] and they accordingly exert significant influence over criminal law through their “decisions to investigate, charge and prosecute offences.”[15] Moreover, the provinces also maintain control over prisons per section 92(6) of the Act, and can legislate punishments (including imprisonment) for provincial laws per section 92(15) — as long as such laws simply enforce other legislation within provincial jurisdiction ).[16]
[1] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.
[2] Ibid at s 91.
[3] Cambridge Business English Dictionary, (Cambridge University Press, 2011) sub verbo “ultra vires”, (online): <dictionary.cambridge.org> [perma.cc/8T2K-BSXV].
[4] RJR-MacDonald Inc v Canada (Attorney General), 1995 CanLII 64 (SCC) at 201.
[5] Peter Hogg, Constitutional Law of Canada, 5th ed, vol 1 (Toronto: Thomson Carswell) at 18-5.
[6] Supra note 4 at 202.
[7] Supra note 5 at 18-30.
[8] Reference re Validity of Section 5 (a) of the Dairy Industry Act, 1948 CanLII 2 at 50.
[9] Supra note 4.
[10] R v Hydro-Québec, 1997 CanLII 318 (SCC).
[11] Supra note 1 at s 92.
[12] Ibid.
[13] See, for example, Westendorp v The Queen, 1983 CanLII 1 (SCC).
[14] Supra note 5 at 19-2.
[15] Ibid at 18-2.
[16] Ibid at 18-3.
The provincial and federal governments share jurisdiction over the environment.[1] The legislative powers of both levels of government are derived from sections 91 to 95 of the Constitution Act 1867, but these sections do not explicitly allocate power over “the environment” to one level or the other.[2] Consequently, environmental regulation has often been a complex area for governments to navigate.
The federal government can use several of the legislative powers granted to it under section 91 of the Constitution Act, 1867 to regulate different aspects of the environment. These include federal jurisdiction in relation to trade and commerce (91(2)), taxation (91(3)), fisheries (91(12)), Indigenous peoples (91(24)), navigation and shipping (91(10)), and criminal law (91(27)).[3]
For example, the Supreme Court of Canada (SCC) decision in R v Hydro-Québec demonstrates that the federal government can validly regulate the environment under its criminal law power.[4] For the federal government to use this power, its legislation must take the form of a prohibition, backed by a penalty, with a valid criminal law purpose.[5] In Hydro-Quebec, the SCC found that environmental protection was a valid criminal law purpose, and that a federal law that empowered government ministers to regulate the release of certain “toxic” substances into the environment was a valid exercise of the federal criminal law power.[6]
The Federal “POGG” Power
The opening paragraph in section 91 also allows the federal government to regulate matters affecting the “Peace, Order, and Good Government of Canada” (POGG for short). Today, courts recognize three branches of POGG: the national concern branch, the emergency branch, and the residual branch. A recent valid use of POGG in the context of the environment is seen in the References re Greenhouse Gas Pollution Act (GGPPA) from 2021.[7]
In this case, a majority of the SCC found that the GGPPA, a federal law aiming to regulate greenhouse gas (GHG) emissions by implementing minimum national standards of GHG pricing stringency, was constitutional.[8] This case came to the SCC on appeal after the Alberta, Ontario, and Saskatchewan governments asked their courts of appeal if the federal government had overstepped its jurisdiction by passing the Act.[9] In a landmark ruling, the SCC held that federal POGG powers enabled the government to pass the Act.[10] The Court framed the issue of establishing minimum national standards vis-à-vis carbon pricing as a matter of national concern that provincial governments were unable to address on their own (see here for a more comprehensive analysis of the GGPPA decision).[11]
Like section 91, there is no explicit reference to the environment in section 92, which enumerates most of the provincial government’s legislative powers. However, provinces can regulate the environment through multiple heads of power, including their powers over natural resources (92A), local works and undertakings (92(10)), property and civil rights (92(13)), and matters of a local or private nature (92(16)).[12]
A recent case that highlights the potential for inter-governmental conflict over environmental issues is the Reference re Impact Assessment Act (2023).[13] The Impact Assessment Act is a federal law that allows the government to assess the environmental impact of different types of “designated projects” and to place restrictions on projects with purportedly adverse effects.[14] Here, the SCC found that some sections of the Act were constitutional, but the “balance of the scheme” was ruled unconstitutional due to its overbreadth.[15]
This decision was celebrated by the Alberta government, which had initiated the action against the law. In response, Premier Danielle Smith suggested that the federal government should take the decision as a lesson to “abandon their ongoing unconstitutional efforts to seize regulatory control over the electricity and natural resource sectors of all provinces.”[16]
Following the decision, the federal government proposed amendments to the law to fix its constitutional defects.[17] However, the Alberta government has already criticized the amendments, stating that they are unconstitutional, and that they will consider challenging them in court.[18]
The recent Canadian case law reflects the extent of intergovernmental tensions over environmental regulation, with jurisdictional disputes continuing across the country. For example, the Government of Saskatchewan decided to stop remitting the federal carbon tax in response to the federal government’s decision to exempt home heating oil but not natural gas from the carbon tax (the latter is widely used in Saskatchewan for home heating).[19] This shows that environmental jurisdiction remains exceptionally contentious in Canada, and will likely result in many future actions in the courts.
[1] Peter Oliver et al, The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017) at 494.
[2] Ibid.
[3] Ibid at 495-6.
[4] Ibid at 496.
[5] Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1 at 50.
[6] R v Hydro-Quebec, [1997] 3 SCR 213 at para 146 [Hyrdro-Quebec].
[7] References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11.
[8] Ibid at paras 57 & 221.
[9] Ibid at para 39-46.
[10] Ibid at para.
[11] Ibid at para 167.
[12] Oliver et al, supra note note 1 at 499.
[13] Reference re Impact Assessment Act, 2023 SCC 23.
[14] Ibid at para 5.
[15] Ibid at paras 215-216
[16] Premier Danielle Smith and Minister Mickey Amery, “Supreme Court of Canada ruling: Joint statement”, Government of Alberta (October 13, 2023), online: <https://www.alberta.ca/release.cfm?xID=89093A2A5472B-F26C-C1A2-A129EE73F4A01853>.
[17] David Thurton, “Alberta calls Ottawa’s impact assessment changes unconstitutional”, CBC News (12 May 2023), online: <https://www.cbc.ca/news/politics/impact-assessment-alberta-1.7202785>.
[18] Ibid.
[19] Jeremy Simes “Sask. government introduces law to stop collecting carbon tax on natural gas”, CBC News (16 November 2023), online: <https://www.cbc.ca/news/canada/saskatchewan/government-introduces-law-stop-collecting-carbon-tax-natural-gas-1.7030339>.
The Alberta Sovereignty Within a United Canada Act (also known as the Sovereignty Act)[1] is a piece of legislation passed by the Legislative Assembly of Alberta on December 8, 2022.[2] It is a novel piece of legislation that provides a process for the Government of Alberta to suspend provincial enforcement of federal legislation or initiatives that the legislature regards as unconstitutional or potentially harmful to Albertans.[3] For example, if the federal government imposed a ban on a certain type of firearm, the provincial government could pass a resolution through the process outlined in the Sovereignty Act and direct the executive branch to cease enforcement of the ban.
Since the first draft of the Act was unveiled in November 2022, it has faced criticism from constitutional scholars in and outside of Alberta. The main concern that many of the Act’s critics share is that it arguably allows the Legislative Assembly to usurp the role of the courts. For example:
By contrast, some commentators have defended the constitutionality of the Act. For example, Geoffrey Sigalet and Jesse Hartery have argued that, as drafted, the Act appears to constitute legislative recognition of the province’s existing power to decline to enforce federal laws.[7] To quote Sigalet and Hartery: "the provincial executive branch is not required to co-operate in the administration of federal laws or programs."[8]
At the time of publishing, the Act has not yet been employed by the provincial government and the federal government has not raised constitutional challenge against it.
***
[1] Alberta Sovereignty within a United Canada Act, SA 2022, c A-33.8 [Sovereignty Act].
[2] Alberta, Legislative Assembly, Hansard, 30th Leg, 4th Sess, No 6 (December 7, 2022).
[3] Sovereignty Act, supra note 1, s 3(b).
[4] Martin Olszynski & Nigel Bankes, “Running Afoul the Separation, Division, and Delegation of Powers: The Alberta Sovereignty Within a United Canada Act” (December 6, 2022), online: ABLawg <https://ablawg.ca/2022/12/06/running-afoul-the-separation-division-and-delegation-of-powers-the-alberta-sovereignty-within-a-united-canada-act/>.
[5] Emmett Macfarlane, “Alberta's Sovereignty Act passes after amendments — yes, it's still garbage” (December 8, 2022), online: Substack: Declarations of Invalidity <https://emmettmacfarlane.substack.com/p/albertas-sovereignty-act-passes-after>.
[6] Eric Adams, “Danielle Smith didn’t give us a watered-down version of Alberta’s Sovereignty Act” (November 29, 2022), online: CBC News <https://www.cbc.ca/news/canada/calgary/opinion-danielle-smith-breaking-down-alberta-sovereignty-act-1.6668760>.
[7] Geoffrey Sigalet & Jesse Hartery, “Opinion: The Alberta Sovereignty Act appears to be constitutional” (December 1, 2022), online: The Hub <https://thehub.ca/2022-12-01/opinion-the-alberta-sovereignty-act-appears-to-be-constitutional/>.
[8] Geoffrey Sigalet & Jesse Hartery, "Opinion: Alberta's Sovereignty Act is constitutional but needs nuance" (December 7, 2022), online: National Post <https://nationalpost.com/opinion/alberta-sovereignty-act-constitutional-but-needs-nuance>.
[9] Macfarlane, supra note 5.
[10] Ibid.
