D. Administration of Justice in the Province

AuthorPatrick J. Monahan - Byron Shaw
Pages374-376

Page 374

Provincial jurisdiction over the administration of justice in the province includes the power to establish and maintain police forces.90Police forces maintained or controlled by the provinces have the authority to enforce both the Criminal Code and all provincial and municipal legislation. The policing function includes investigation and prevention of crime as well as the laying of charges where there are reasonable and probable grounds to believe an offence has been committed.

Page 375

Only Ontario and Quebec have chosen to establish their own provincial police forces for these purposes. In the other eight provinces, provincial policing is provided by the rcmp pursuant to contracts entered into between the provincial attorney general and the federal force. In performing services under those contracts, the rcmp is subject to the control and direction of the provincial attorney general. However the courts have also held that the investigation of complaints made in respect of rcmp conduct, as well as the disciplining of rcmp officers, is an exclusive federal responsibility, regardless of whether the officers are acting pursuant to contracts with the provinces.91The provincial policing power flowing from section 92(14) extends only to federal legislation enacted pursuant to the criminal law jurisdiction of Parliament.92Enforcement of laws enacted by Parliament pursuant to heads of authority in section 91 other than section 91(27) are a federal rather than a provincial responsibility. Thus, in all provinces, the enforcement of non-criminal federal statutes93is performed by the rcmp, not pursuant to contract with the province but directly through authority contained in the Royal Canadian Mounted Police Act.94Once criminal charges have been laid, the prosecution of those charges is also a provincial responsibility pursuant to section 92(14). Section 2 of the Criminal Code defines the term "attorney general" for purposes of the Criminal Code as being the attorney general of the province in which the proceeding is taken. In a series of cases in the late 1970s and early 1980s, the question arose whether Parliament had the power to provide for federal prosecution of criminal laws. These cases decided that Parliament did have the authority to so provide.95Thus, it would appear that Parliament could amend the definition of "attorney general" in the Criminal Code so as to restrict or limit the role of the provincial attorney general in...

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