CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, February 2, 2011

Hughes on Proliferation of Criminal Law

Hughes jula Jula Hughes (University of New Brunswick Faculty of Law) has posted Restraint and Proliferation in Criminal Law (Review of Constitutional Studies, Vol. 15, No. 1, 2010) on SSRN. Here is the 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.

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