A. Criminal Justice And The Division Of Powers

AuthorKent Roach
ProfessionFaculty of Law and Centre of Criminology. University of Toronto
Pages25-31

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1) Federal Jurisdiction over Criminal Law

Under section 91(27) of the Constitution Act, 1867, only the federal Parliament can enact laws concerning criminal law and procedure. Most criminal law is contained in the Criminal Code1although the Controlled

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Drugs and Substances Act2and the Youth Criminal Justice Act3are often considered criminal law. Not all laws enacted by the federal government fall under its power to enact criminal law and procedure. For example, a federal law prohibiting the sale of margarine or establishing the alcohol content of light beer would not be a valid criminal law.4Courts have, however, been quite generous in allowing the federal government to enact laws that facilitate the administration of the criminal law. For example, federal laws regulating the detention of the criminally insane or those found unfit to stand trial because of a mental disorder5and enabling judges to order the accused to make restitution to the victims of crime6have been upheld as valid criminal law. Parliament’s criminal law power has also been interpreted broadly to allow laws restricting the advertising of tobacco,7prohibiting pollution,8and prohibiting the possession of marijuana.9When the federal government relies on its criminal law power, it must emphasize the use of prohibitions and punishments, as opposed to other forms of regulation such as licensing and inspections.

Unlike in the United States and Australia, the provinces (or states) cannot make laws that are classified by the courts as having the dominant purpose of prohibiting acts by the criminal sanction. Provincial and municipal attempts to prohibit the propagation of ideas,10the use of streets for prostitution,11or abortions,12have all been struck down as infringing the federal government’s exclusive jurisdiction over criminal law. A provincial offence or a municipal by-law will be unconstitutional if its prime purpose is to punish behaviour as criminal. Before the enactment of the Charter, these restrictions acted as an indirect but important protection of civil liberties.

Provincial or municipal laws have also been upheld if found to have the primary purpose of responding to the conditions that cause

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crime as part of provincial jurisdiction over local matters.13The courts have recently upheld various provincial laws designed to prevent and respond to crimes by various preventive and remedial measures even though there were already provisions in the federal criminal law addressing the same mischief.14

2) Provincial Jurisdiction to Enact Regulatory Offences

Under section 92(15) of the Constitution Act, 1867, the provinces (and their delegates, the municipalities) can create offences punishable by fine, penalty, or imprisonment for matters within their jurisdiction. The provinces have been allowed to enact highway traffic offences,15 and to make provisions for the classification and censorship of films16 and even the compulsory treatment of heroin addicts.17Provincial of-fences will be constitutional provided that their dominant purpose is to regulate some matter within areas of provincial jurisdiction, such as property and civil rights and matters of a local and private nature.

Provincial offences are often classified as regulatory or public welfare offences. They can be tried in the same courts as criminal offences and can even result in imprisonment. The standards for investigation and conviction of regulatory offences are generally less protective of the accused than those for criminal offences.18The federal government can also enact regulatory offences under other areas of its jurisdiction, such as its power over fisheries. In terms of offences and prosecutions, regulatory offences far outnumber criminal offences. Individuals are more likely to be charged with speeding or performing an act without a licence than with crimes such as murder, theft, or break and enter.

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3) Prosecutors, Police, and Prisons

The Attorney General of a province will generally prosecute offences under the Criminal Code,19but the federal Attorney General may prosecute drug offences.20The same division of labour is true of policing, with the provinces being able to establish police forces to enforce the Criminal Code (this power in turn often being delegated to a municipality or a region) and the federal government being able to create police to investigate other offences under federal law. Many provinces, however, purchase policing services from the Royal Canadian Mounted Police, the federal police force. Peace officers (including the public police, customs officials, and jail guards, but not usually private police or security guards) have special powers, duties, and protections under the Criminal Code.21A fundamental feature of the rule of law is that peace officers are bound by the law including the Criminal Code and the Charter. Ordinary individuals have legal powers to arrest a person fleeing from the commission of a serious offence22and to go before a judicial official to establish reasonable and probable grounds that a criminal offence has been committed.23The provinces have jurisdiction over those sentenced to less than two years’ imprisonment, while the federal government administers penitentiaries for those sentenced to longer periods.24The provinces generally administer probation orders, while provincial and federal parole boards administer gradual release or parole from imprisonment before an offender’s sentence has expired.

4) Trials and Trial Courts

The majority of criminal cases are resolved in provincial courts formally known as magistrates’ courts. Provincial court judges are appointed by the provinces and they cannot sit with a jury. They can, however,

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