Section 91(27) of the Constitution Act, 1867, also known as the criminal law power, grants the Parliament of Canada the authority to legislate on: 27.
Provincial legislation which in pith and substance falls inside the perimeter of that term broadly defined is ultra vires.
It was first defined by Lord Haldane of the Judicial Committee of the Privy Council, writing in the opinion for the Board of Commerce case, as that area: "where the subject matter is one which by its very nature belongs to the domain of criminal jurisprudence".
In Proprietary Articles Trade Association v. Attorney General of Canada, Lord Atkin, writing for the Council, rejected this interpretation: It certainly is not confined to what was criminal by the law of England or of any province in 1867.
Therefore, the following must be met for a law to be criminal in nature: The issues relating to prohibitions and penalties can be approached separately, as noted by Laskin C.J.
The criminal law power is not unlimited in scope, as noted recently in the Reference re Assisted Human Reproduction Act,[2] where the majority held that it is not enough to identify a public purpose that would have justified Parliament’s action — it must also involve suppressing an evil or safeguarding a threatened interest.
This violation was not justified under the second step of the following two-step process: The test is heavily founded in factual analysis so strict adherence is not always practiced.
Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
As held in Attorney General of Canada v. Canadian National Transportation, Ltd.,[1] the administration of justice does not embrace prosecutorial authority respecting the federal criminal law.
Where the province enacts a regulatory scheme that contains penalties, and that concerns matters normally within its jurisdiction, the law is typically upheld.
The conditions attaching the entertainment licence in question specified the degree of nudity acceptable and rules for staging events presupposing the removal of clothing.
Though there are provisions within the Criminal Code dealing with nudity, they did not conflict with the provincial law, as breach of the latter could result in suspension or cancellation of the liquor licence, but did not entail any penal consequences.