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Constitution - Criminal. Sri Lankan Canadian Action Coalition v. Ontario (Attorney General)
In Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an application (JR?) for a "declaration of constitutional invalidity", dealing with the 'Tamil Genocide Education Week Act, 2021' - what I call a 'heritage/awareness statute'.
Here the court considers the federal division-of-powers 'criminal' head [The Constitution Act, 1867, s.91(27)]:[108] First, the TGEWA does not fall under or interfere with the federal criminal law power.
[109] To fall within the criminal law power under s. 91(27), a law must have (i) a prohibition, (ii) a penalty backing that prohibition, and (iii) a criminal law purpose: Reference re Genetic Non-Discrimination Act, at para. 67. The application judge held that the TGEWA does not satisfy any of these elements. We agree.
[110] The TGEWA does not constitute criminal law. The operative provisions of the Act declare a commemorative week. They contain neither a prohibition nor a penalty. They have no legal effect in any criminal proceeding.
[111] The preamble of the TGEWA may indicate that the Sri Lankan state is responsible for a “genocide” while using the term’s criminal law definition, but the preamble creates no rights or liabilities. Nor does the preamble purport to satisfy any of the elements of s. 6(1) of the Crimes Against Humanity and War Crimes Act for criminal law purposes against any person charged with the offence. We thus reject Mr. Hewage’s submission that Ontario “has utilized areas of the criminal [l]aw” and “effectively applied” the criminal prohibition under s. 6(1) by designating the Sri Lankan Civil War a “genocide”.
[112] Additionally, absent any criminal law effect, we do not see how the TGEWA encroaches on the federal power over criminal law. The Act may reference a criminal law definition, but this reference does not interfere with the prosecution of genocide offences in accordance with federal law. There is no evidence that the Act has been or was intended to be used to impact criminal proceedings.
[113] We accordingly conclude that the TGEWA does not fall under or interfere with the federal criminal law power. . Murray‑Hall v. Quebec (Attorney General)
In Murray‑Hall v. Quebec (Attorney General) (SCC, 2023) the Supreme Court of Canada characterizes the constitutional criminal power, noting that an internal statutory exception to a larger criminal prohibition does not mean "that the practice is positively allowed by the federal law":[90] In my opinion, the appellant’s position cannot be accepted. The purpose of the federal Act’s provisions is not to create a positive right to self‑cultivate cannabis as part of a broader objective of limiting the influence of organized crime. Such a purpose would be inconsistent with the fact that “the criminal law power is essentially prohibitory in character” (Rothmans, at para. 19), a fact that has been recognized in Canadian law since the leading case of Proprietary Articles Trade Association v. Attorney General for Canada, 1931 CanLII 385 (UK JCPC), [1931] A.C. 310 (P.C.). As McLachlin C.J. noted in Reference re AHRA, “[t]he federal criminal law power may only be used to prohibit conduct” (para. 38). It follows that when exceptions are carved out for practices that Parliament does not wish to prohibit, this “only means that a particular practice is not prohibited, not that the practice is positively allowed by the federal law” (ibid. (emphasis deleted)). . Reference re Genetic Non‑Discrimination Act
In Reference re Genetic Non‑Discrimination Act (SCC, 2020) the Supreme Court of Canada considered whether a criminal law that prohibited the collection and use of genetic information was valid under the federal constitutional criminal division of powers. In doing this the court determined the 'pith and substance' of the law by a two-step 'characterization and classification' procedure [at paras 20-103]. The case is interesting for the genetic issue and for it being an example of the division-of-powers analysis.
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