Section 91(27) of The Constitution Act, 1867 - Scope of The Federal Power - Limitations

Limitations

The criminal law power is not unlimited in scope, as noted recently in the Reference re Assisted Human Reproduction Act, 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. The evil must be real and the apprehension of harm must be reasonable. Recourse to the criminal law power cannot be based solely on concerns for efficiency or consistency, as such concerns, viewed in isolation, do not fall under the criminal law.

There are limits to the power's extent under the Canadian Charter of Rights and Freedoms, most notably on the question of proportionality. In R. v. Big M Drug Mart Ltd., Dickson J. asserted that limitations on rights must be motivated by an objective of sufficient importance. Moreover, the limit must be as small as possible. In R. v. Oakes, he elaborated on the standard when one David Oakes was accused of selling narcotics. Dickson for a unanimous Court found that Oakes' rights had been violated because he had been presumed guilty. This violation was not justified under the second step of the following two-step process:

1. There must be a pressing and substantial objective
2. The means must be proportional

• it must be rationally connected to the objective
• there must be minimal impairment of rights
• there must be proportionality between the infringement and objective

The test is heavily founded in factual analysis so strict adherence is not always practiced. A degree of overlap is to be expected as there are some factors, such as vagueness, which are to be considered in multiple sections. If the legislation fails any of the above branches, it is unconstitutional. Otherwise the impugned law passes the Oakes test and remains valid.