Touch of Evil: Disagreements at the Heart of the Criminal Law Power

Evil has been a diffıcult presence to shake in the judicial treatment of Parliament’s criminal law power, s. 91(27). From its early treatment by the Judicial Committee of the Privy Council to the Supreme Court of Canada’s latest disagreements in Reference re Genetic Non-Discrimination Act, the necessity of suppressing evil has woven in and out of the jurisprudence of the criminal law power. Alluring for its potential to provide some integrity and definitional limits to a broad head of jurisdictional power, a judicial standard premised on evil ultimately distracts more than it assists in adjudicating the division of powers by drawing courts into unquantifiable assessments of the amount of evil required before Parliament can validly enact criminal law. Better for courts to be guided by the broader conception of criminal public purpose articulated in Justice Rand’s famous judgment in Margarine Reference as a way to enable the respect of the full scope of Parliament’s authority while also protecting the balance of federalism. The Supreme Court’s divided reasons in Reference re Genetic Non-Discrimination Act provide hope for just that approach while also suggesting that evil may continue to unhelpfully hover at the edges of a case law it has haunted for too long.