Prescribing Plenary Powers: The Evolution and Intersection of Criminal and Health Jurisdiction in Canadian Federalism

Abstract

Using the Supreme Court of Canada's recent decision in Murray-Hall v Quebec (Attorney General) as a focal point, this paper tracks the evolution and intersection of the federal criminal law power and the provincial health law power in Canadian federalism cases. Part II of the paper examines existing methods used to prescribe plenary powers, including interpretative narrowing (formalism), expansion of concurrent federalism (double aspect), and purpose review (colourability). The paper shows that the Supreme Court of Canada has applied these prescriptions to the federal criminal law power but rarely to the provincial health law power. Part III looks around the corner to hard cases at the intersection of criminal law and health law that may make their way to the Supreme Court of Canada: (1) bans on medically recommended healthcare treatment for trans children in Alberta, and (2) involuntary addiction treatment of competent adults who use drugs in New Brunswick. The main claim of the paper is that the Supreme Court of Canada's present approach to prescribing plenary powers at the intersection of criminal law and health emboldens provinces to enact quasi-criminal legislation with limited connection to health and substantial rights infringements.

Keywords: constitutional law, federalism, division of powers, criminal law, health law, cannabis, Supreme Court of Canada