A Normative Approach to Criminal Law Purpose Under 91(27)

Abstract

The boundaries of the substantive (criminal law purpose) prong of the criminal law power test under 91(27) of the Constitution Act, 1867 remains unsettled. This article examines the nature of the stalemate arising out of the two most recent cases to consider the issue: Reference re Assisted Human Reproduction Act, 2010 SCC 61 and Reference re Genetic Non-Discrimination Act, 2020 SCC 17.  This uncertainty provides an opportunity for the Supreme Court to forge a new path forward. This article aims to offer a justification for why a new path is necessary to give effect to both federalism and the need for certainty in our creation and interpretation of criminal offences. It uses the criminalization of the sale of sugary drinks, an issue that came up during the oral hearing in the GNDA Reference, as a case study to better understand the problems with the current Supreme Court framework and the normative approach developed in this article. That approach is grounded in moral blameworthiness and restraint. Its source is our substantive criminal law.