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Constitution - Criminal. 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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