The Legality of Incorporating Provincial Law into a Criminal Offence

The drafters of the 1867 Constitution Act were unmoved by the argument that the substantive criminal law ought to be crafted by each individual province as a means to preserve regional values. They instead assigned the criminal law power to the federal government to better promote legal stability and clarity when the state attempts to deprive a citizen of their liberty. A recently rejuvenated practice of incorporating provincial offences within the definition of criminal offences unfortunately ignores the rationale underlying this division of authority. Identifying this inconsistency would have proven useful in Murray-Hall v. Québec (Attorney General) as a more direct means to prevent the criminalization of any cannabis declared “illicit” by a provincial government. In so doing, however, it was necessary to challenge the federal act for exceeding the normative boundaries of the incorporation by reference doctrine. Using that doctrine to modify the definition of a “true crime” like the distribution offence in the Cannabis Act is inconsistent with the rationale underlying why the criminal law power was assigned to the federal government. This rationale would also prove useful when assessing the judicial interpretation of the requirement that those given conditional sentence orders, probation orders, and peace bonds “keep the peace and be of good behaviour”. The current jurisprudence concluding that this standard is violated when an individual breaches a “provincial or municipal law” again impermissibly delegates authority for determining the scope of a criminal law.