The Contours of what is Criminal

Abstract

This definition would appear to enable Parliament to expand its jurisdiction indefinitely by framing its legislation as a formal prohibition accompanied by a penalty. In the Margarine Reference (1948), the Supreme Court of Canada said that, in addition to a prohibition and penal sanction, criminal legislation must "serve a public purpose which can support it as being in relation to criminal law." Public purposes include "public peace, order, security, health, morality . . . these are the ordinary though not exclusive ends served by the law." The Margarine Reference case also established that criminal law must contemplate conduct harmful to an individual or to the public. In establishing the relation between harm and the criminal law, Justice Rand stated,

In RJR-MacDonald Inc. v. Canada (Attorney-General), 1995, federal legislation banning cigarette advertisements was challenged as ultra vires Parliament's criminal law jurisdiction. The Supreme Court invoked the Margarine Reference test to determine the constitutional validity of the legislation. Did the prohibition "serve some legitimate public purpose" and prevent harm? The Court ruled seven to two in favour of constitutionality. Justice La Forest said the "public evil" was "the detrimental effects caused by tobacco consumption" and the fact that "tobacco kills". The legitimate public purpose was protection of Canadians from a harmful drug.

In R. v. Hydro-Quebec, 1997, the Supreme Court considered whether the regulatory nature of the Canadian Environmental Protection Act was criminal. In a five to four decision, the Court upheld the legislation which was intended to safeguard the public against the "public evil" of pollution. For something to be a crime, it must risk harming an individual or the public. In the years following, this reasoning was affirmed in R. v. Cuerrier, 1998, where Justice Cory held that there was "no prerequisite that any harm must actually have resulted." A "significant risk" of harm suffices for an act to be criminal.