Provinces, cities overstepping authority?
Police in Ontario search a car and discover almost $30,000 cash and items suggestive of marijuana production. There isn’t enough evidence to charge the driver under federal criminal laws, but authorities seize the cash under provincial civil forfeiture laws.
In Edmonton, a man and woman get into a fight at a nightclub. Police do not file assault charges. Instead, they slap a $500 fine against one of them under a municipal bylaw that prohibits public fighting.
In Canada, the authority to create criminal laws is supposed to be the exclusive domain of the federal government. Yet there has been a worrisome and “growing trend” of provinces and municipalities enacting “criminal law through the back door,” says a newly published article in the journal Canadian Public Administration.
This back-door approach raises questions about due process, since evidence standards are lower, writes Dennis Baker, a political-science professor at the University of Guelph. Instead of proof beyond a reasonable doubt, authorities only have to prove that, on a balance of probabilities, an accused more likely than not committed the offence.
In some cases, penalties for violating these quasicriminal provincial and municipal laws can be more severe than the penalties under federal criminal law.
“It may introduce unintended consequences” in the form of “reduced Charter protections and removing all the norms of the criminal process,” Baker said in an email.
Last month, the Minnesota governor signed a bill that prohibits police from keeping seized vehicles, property or cash in drug cases unless there is a conviction. Previously, it didn’t matter if there was a conviction, and the onus fell on the owners to prove that their property wasn’t connected to a crime.
In Canada, the workaround of the federal Criminal Code by provinces and municipalities shows no signs of slowing, Baker said. In fact, a 2012 discussion paper circulated by a steering committee of federal and provincial deputy justice ministers, judges and lawyers seemed to encourage the practice as a way to help address backlogs in the criminal justice system.
Those caught driving impaired for the first time could be dealt with through administrative sanctions, such as vehicle seizures or loss of driving privileges, the paper suggested. Such measures were introduced in B.C. in 2010.
The paper also suggested that minor property offences could be prosecuted at the provincial level, much like traffic offences, without the possibility of jail time.
In some cases, suspects could be given an option to have their case go to criminal arbitration instead of trial, the paper suggested, but that would mean giving up their right to Charter protections.
Federal justice officials were unable to provide an update Tuesday on the status of those discussions. “As has always been the case, provinces and territories are free to legislate as they see fit, in their area of jurisdiction,” said Carole Saindon, a Justice Department spokeswoman.
Besides the Ontario civil forfeiture law and Edmonton public fighting bylaw, Baker cites other examples of the blurring lines between federal, provincial and municipal division of powers. A Manitoba law allows for a wide range of civil remedies to victims of domestic violence; a Saskatchewan law prevents anyone charged with or convicted of a crime from making money from selling their memoirs; and a Vancouver bylaw prohibits aggressive panhandling.
Baker hearkens back to a 1993 unanimous Supreme Court of Canada decision that said provinces “may not invade the criminal field by attempting to stiffen, supplement or replace the criminal law …. or to fill perceived defects or gaps therein.”