The Provincial Power to (Not) Prosecute Criminal Code Offences.

• Author: Baker, Dennis
• Position: Canada

INTRODUCTION

In response to the Supreme Court of Canada's decision in Bedford, (1) the Federal Government enacted controversial new legislation that introduced a new prostitution offence ("commodification of sexual activity"), based on the Nordic model of criminalizing the buyers rather than the sellers of sex. (2) Among those who were apprehensive about the new legislation was Ontario Premier Kathleen Wynne: "I am left with the grave concern that the so-called Protection of Communities and Exploited Persons Act will protect neither 'exploited persons' nor 'communities.'" (3) Given her doubts, she asked the Attorney General of Ontario to advise on the constitutional validity of the legislation. (4) Law professor and Bedford advocate, Alan Young, supported the Premier and suggested she could go even further: "[t]he provinces can decide to nullify a new enactment simply by refusing to prosecute cases brought under this law." (5) Wynne was less sure of her capacity to stop prosecutions, noting that the law "was duly passed through a democratic process" and "[t]he Attorney General of Ontario is bound to enforce the Criminal Code." (6) Ultimately, then-Attorney General Meilleur reported that there is "no clear unconstitutionality in the law" and while the Ontario Government will "monitor and determine the impact of the law," it will also proceed with the approximately 26 cases currently being prosecuted. (7)

Could the Province of Ontario have refused to prosecute the new "commodification of sexual activity" offence? That question is the subject of this paper. While there are clear precedents for provincial non-enforcement--in the 1970s, Quebec refused to enforce the federal abortion law, and more recently both British Columbia and Quebec chose not to enforce the assisted suicide provisions of the Criminal Code (8)--those instances of provincial non-enforcement had seemingly been tolerated by a Federal Government ambivalent about its own laws. In this instance, the Federal Government clearly wanted its new prostitution offence enforced. A more analogous case might be the inter-governmental wrangling over the longgun registry, where, among other instances of provincial intransigence, the Attorney General of Saskatchewan declared that no prosecutions of the federal Firearms Act would be conducted in that province. (9) The federalism controversies over the Firearms Act were never clearly resolved (10) but simply abated when the Harper Government first announced an "amnesty" in 2006 and subsequently repealed the long-gun registry in 2012. (11) To this day, the legal authority of the province to practice a policy of non-enforcement of a Criminal Code offence remains an open question with competing views. To give just two examples, Osgoode Hall Dean Lorne Sossin thinks that while "a provincial government may oppose a parliamentary amendment to Canada's Criminal Code... its law enforcement officials must still enforce that law." (12) By contrast, law professor Mark Carter argues that provinces could forgo prosecutions of a law and "distance themselves from politically unpopular or expensive federal criminal law initiatives." (13)

My position is that the provinces have at least a concurrent constitutional power over the prosecution of criminal law offences, and a concomitant power to choose not to prosecute a validly enacted federal law. This position reflects an understanding of the original bargain struck in 1867 that sees the criminal justice powers separated functionally, which provides the opportunity for effective "checks and balances" in the moderation of criminal law. It is admittedly a position out-of-step with the view that prevailed in the early 1980s (14) when Chief Justice Laskin's "delegated" approach to questions of prosecutorial jurisdiction--i.e., that criminal prosecution was a federal power that had been "delegated" to the provinces--trumped a competing vision set out by Justice Dickson (as he was then). It is also, perhaps, out-of-step with some elements of modern federalism jurisprudence, although the recent Supreme Court decision in the Quebec gun registry case denied "cooperative federalism" constitutional status, (15) and might presage a more vigorous division of powers jurisprudence. Regardless, the criminal justice federalism powers, I argue, warrant treatment different from the other federally divided powers because of their different textual basis and atypical design. After discussing the delicate balance established by the British North America Act, 1867, the judicial unsettling of this scheme in the early 1980s will be briefly examined and questioned. (16) I argue that the judiciary, for reasons unrelated to the administration of criminal justice, skewed the underlying constitutional design to accommodate other (non-criminal) federal objectives. While this "unbalancing" of the criminal justice powers has likely inhibited provincial exercises of their prosecutorial authority--or at least contributed to the confusion about their operation--a provincial power of non-enforcement remains viable even under Laskin's "delegated" approach. Properly understood and exercised, however, provincial non-enforcement is best understood as harmonious with the constitutional balance struck in 1867 and could continue to offer salutary effects for the administration of criminal law in Canada.

1. THE CHECKS AND BALANCES IN CRIMINAL JUSTICE FEDERALISM

   The constitutional authority to create and administer criminal law is found in sections 91 and 92 of the British North America Act, 1867. Section 91(27) grants the federal Parliament the "exclusive legislative authority" over all matters coming within "[t]he Criminal Law... including the Procedure in Criminal Matters." (17) Section 92(14) grants that each provincial legislature "may exclusively make Laws" in matters coming within the "Administration of Justice in the Province." (18) It is tempting to say that these sections on their face answer the question of where prosecutorial authority lies: if prosecuting crimes is considered part of the "administration of justice," then the provinces hold the constitutional power undeniably. In this view, the text establishes a functional division of powers with respect to criminal justice, where the federal Parliament legislates what is and what is not a criminal offence, but the provinces are charged with the application of that criminal law. Such an approach would also be consistent with Canadian constitutional history and practice. Justice Dickson, dissenting in Wetmore, calls attention to the "special relationship" between sections 92(14) and 91(27) and emphasizes that "together [they] effect a careful and delicate division of power between the two levels of government in the field of criminal justice." (19) Although Dickson's views were expressed in dissent, his approach is the traditional and most plausible reading of the relevant constitutional provisions, especially in the context of criminal justice circa 1867, where (1) prosecutorial power was radically decentralized; (2) even proponents of provincial power recognized some need for national uniformity in criminal legislation; and, (3) the protection of liberty was an objective of the constitutional design. It is unclear whether Dickson's greater appreciation of the "delicate division" in criminal law powers included a checks-and-balances relationship between the two levels of government, but it is consistent with such an approach. Indeed, the connection between an approach to federalism and the prosecutorial question is often complex.

   As I will argue, while the checks-and-balances approach to criminal justice federalism most clearly permits provincial non-enforcement (and perhaps even encourages it), other accounts of federalism that take seriously the division of criminal justice powers are compatible with non-enforcement. (20) Regardless of one's approach to federalism in general, it is important to understand the specific origins of Canadian criminal justice federalism and how the Supreme Court altered that approach in the early 1980s. With this understanding in mind, the appropriateness of a provincial power of non- enforcement becomes much clearer.

   By 1867, the would-be-Canadian-Founders were well familiar with the complexities of criminal prosecutions. Following the English tradition, prosecution of criminal offences in the United Province of Canada was primarily a private affair until 1857. (21) This meant that individuals would enforce common law criminal offences against other individuals. Such an approach would naturally be dependent on the resources, capabilities, and willingness of victims to ensure that offenders be brought to justice. The inequality and potential for injustice that such a system invites created pressure for a more state-centered approach, where crimes would be considered a disruption of public order and addressed through public prosecutions. Nevertheless, the private-system origins and the decentralized nature of prosecutions would remain deeply ingrained. Thus, when John A. Macdonald's government enacted the County Attorney's Act in 1857--the critical step in establishing public prosecutors in pre-Confederation Canada--it was described as a scheme "to introduce a complete local system for the efficient administration of criminal justice." (22) In other words, although prosecution became a public rather than a private matter--a matter for the state--it continued to be understood as best undertaken on a local level. (23) A distant prosecutor--the thinking went--might not be as interested in seeing justice done.

   The Founders' decentralized approach to prosecution reflected the fully developed criminal law systems that were in place in all of the colonies by the time of Confederation. The appeal of what we would now call "subsidiarity" (24) was especially prized in criminal justice matters. This norm was widespread "with local...