Criminal law under the Constitution Act, 1867

Criminal Law Under The Constitution Act, 1867

Criminal law under the Constitution Act, 1867

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In Canadian Constitutional law, the Constitution Act, 1867 provides the government with the authority to legislate on matters of criminal law and quasi-criminal law. The primary criminal law power is granted to the federal government under section 91(27). Additional criminal law-related powers are available to the provincial governments under sections 92(14) and 92(15).

Criminal law power

Section 91(27) extends exclusive legislative authority to the Parliament in matters of "Criminal Law, except the Constitution of Court of Criminal jurisdiction, but including the Procedure in Criminal Matters." This federal power is by and large the broadest of the enumerated powers allocated to the federal government."s. 91(27) of the Constitution must be read as assigning to Parliament exclusive jurisdiction over criminal law in the widest sense of the term" Scowby v. Glendenning, 2 S.C.R. 226 at 238.

The meaning of the phrase "criminal law" was historically a matter of debate. It was first defined by the Privy Council in the Board of Commerce case as that which the "subject matter is one which by its very nature belongs to the domain of criminal jurisprudence". This definition was found to be overly narrow as it froze the definition of 91(27) to only include matters that were considered criminal during Confederation. The provision was reinterpreted in PATA v. Canada where instead the Privy Council used a very broad...
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