POLS 3135 Lecture 7 2007

POLS 3135 Lecture 7 2007 - Public Law I Criminal Law •...

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Unformatted text preview: Public Law I: Criminal Law • Bedard v. Dawson • Proprietary Articles Trade Assoc ref. (1931) • Margarine Reference Case • Westendorp v. The Queen • R.J.R. –MacDonald Inc. V. Canada (1995) Bedard v. Dawson (1923) • In early 1900s, Quebec gov’t passed legislation prohibiting any property (home, apartment, or other building) from being used for disorderly purposes. A conviction for prostitution or gambling under the criminal code, if the prostitution or gambling occurred in that building, was proof that the building was being used for disorderly purposes. If the prohibited use continued, then any person could apply for an injunction to stop the building from being so used, and if it continued to be so used, the building could be locked up by the authorities. Bedard vs. Dawson (cont’d) • Bedard objected to an injunction – claimed that the Quebec legislation was really criminal legislation under 91(27) • Dawson: the Quebec legislation is valid under 92(13). • Supreme Court of Canada: 5­0 seriatim decision: the Quebec legislation is valid as a regulation of property and civil rights. The mischief is having a disorderly house in one’s neighbourhood. The remedy is to prohibit such establishments. The feds can’t regulate property in this way. Proprietary Articles Trade Assoc ref. (1931) Impugned: federal anti­ combines legislation (akin to Bd of Commerce case) Lord Atkin for JCPC Intra vires under fed. Criminal power (91[27]) Test: penal consequences: a very broad test for what constitutes valid criminal law. Margarine Reference Case (1949) • Fed gov’t had passed law prohibiting the importation, production and selling of margarine (legislation ultimately aimed to protect the established dairy industry in Canada) • Law referred to SCC. • Majority found law to be ultra vires of the federal gov’t because it was deemed to be about regulating property (hence provincial)—ban on importation up held as a valid exercise of fed. trade and commerce power. • In the process of reaching decision, J. Rand of SCC undertook to define more clearly what counted as valid federal criminal law power. Margarine Reference Case cont. • Rand set out two conditions that law must meet to be considered valid criminal law: – the law must be a prohibition with a penal sanction; and – the law must be directed towards a public purpose. Problem with the definition of public purpose—what does it mean? Rand attempted to give some content to this phrase by indicating that it included such topics as: public peace, order, security, health, morality. Still the very generality of these topics means that there is a;lways the possibility that fed. gov’t will use its criminal law power in colourable fashion to invade provincial jurisdiction. In Margarine Ref. SCC was alert to this problem and ruled that the fed. Govt had not established a genuine public purpose in prohibiting sale of margarine. Westendorp v. The Queen (1983) • In 1974, the City of Calgary passed a by­law to control use of streets and sidewalks (vendors, walking on sidewalks, clearing streets, parades, etc.) It had the authority to enact this secondary legislation because of the primary legislation: The Municipal Government Act [Alberta]. • In 1981, Calgary amended the by­law to add s. 6.1, which prohibited anyone from approaching anyone on a city street or sidewalk “for the purpose of prostitution.” • Lenore Westendorp was charged under the by­law, and pleaded not guilty on the grounds that the by­law was ultra vires provincial powers. Westendorp (continued) • Westendorp was acquitted at trial in the Provincial Court; judge found s. 6.1 of the by­ law ultra vires. • Crown appealed; AB Ct of Appeal found the by­law intra vires. • AB Ct Ap decision by Roger Kerans: pith and substance of by­law is to control a nuisance, not to prohibit prostitution. Prostitutes can still operate elsewhere, off the streets. • Appeal by Westendorp to Supreme Court of Canada. • 9 judge panel; decision written by Chief Justice Laskin. • Laskin: Kerans is wrong. The by­law regulates public morality, so it is a crimininal law. It is colourable, because it is dressed up to look like a simple regulation of the use of streets. Kerans’ reasoning is “baffling.” • Charter issue: not relevant because the by­law is ultra vires the province and therefore the City. R.J.R. –MacDonald Inc. V. Canada (1995) • Fed. Govt passed Tobacco Products Control Act contained extensive prohibitions on the advertisement and promotion of tobacco products and required all such products to have prominent warning labels mentioning health hazards associated with smoking. Sale of tobacco products was not, however, prohibited. • Cigarette companies challenged legislation in court on both federalism and Charter grounds. Their Charter argument was that the leg. violated their freedom of expression. • Federalism argument was that the legislation was not a valid exercise of federal criminal law power but instead was a matter of property and civil rights and therefore ultra vires the federal govt’s jurisdiction. R.J.R. –MacDonald Inc. V. Canada cont. • Tobacco companies lost the criminal law argument (but won the Charter argument.) • Majority of Court (La Forest) argued that the law created prohibitions with penalties, and accepted that it was aimed at a public purpose (protecting health). • In reaching this decision La Forest redefined the idea of public purpose underlying criminal law as had been sketched out by J. Rand in Margarine Reference. According to La Forest, a criminal law is validly enacted if it is directed at “an evil or injurious effect upon the public”. • La Forest’s definition of the purpose of criminal law remains very open­ended. R.J.R. –MacDonald Inc. V. Canada cont. • Minority dissenters pointed out that it was strange to criminalize the advertising and promotion of a product (tobacco) while not prohibiting its sale. This latter fact suggested to the dissenters that the prohibitions in the Tobacco Products Control Act lacked the a typically criminal public purpose. • Dissenters also pointed out that the fact that the Tobacco Products Control Act contained broad exemptions for certain types of tobacco promotions meant that the law was in essence regulatory rather than a truly criminal law. ...
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