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Restraint and Proliferation in Criminal Law

Review of Constitutional Studies, Vol. 15, No. 1, 2010

33 Pages Posted: 22 Jan 2011  

Jula Hughes

University of New Brunswick - Fredericton - Faculty of Law

Date Written: January 12, 2011

Abstract

This paper considers why the criminal law continues to grow despite broad-based policy consensus on the harms of over-criminalization. I argue that political expediency combines with the Canadian constitutional arrangement under ss. 91 and 92 of the Constitution Act, 1867 to drive the expansion of Canadian criminal law. The federal power to criminalize and the provincial responsibility for enforcement amounts to a constitutionally directed unfunded mandate. In a case study of the Westray Bill, the paper examines the political mechanisms and institutional forces that further the expansion of the criminal law and that result in ineffective, inefficient and ultimately harmful prohibitions. The paper concludes that it is legitimate to invoke the constitutional power of the courts to limit the scope of the criminal law and shows how this can be achieved without abandoning established constitutional and criminal law principles and precedent.

Keywords: Criminal Law Power, Canadian Constitutional Law, Legitimacy of Judicial Review, Corporate Crime

Suggested Citation

Hughes, Jula, Restraint and Proliferation in Criminal Law (January 12, 2011). Review of Constitutional Studies, Vol. 15, No. 1, 2010. Available at SSRN: https://ssrn.com/abstract=1738957

Jula Hughes (Contact Author)

University of New Brunswick - Fredericton - Faculty of Law ( email )

P.O. Box 4400
Fredericton, New Brunswick E3B 5A3
Canada

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