Pubdate: Wed, 18 Jun 2014
Source: Vancouver Sun (CN BC)
Copyright: 2014 Postmedia Network Inc.
Contact:  http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Douglas Quan
Page: B8

PROVINCES, CITIES CREATING ' CRIMINAL LAW THROUGH THE BACK DOOR'

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 quasi-criminal 
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.

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.

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 
acknowledges that those who have challenged such laws in court 
usually have failed, and that the federalism argument tends to lose 
to arguments that the laws help to maintain public order, deter crime 
and compensate victims.

If Ottawa decides in the future to decriminalize prostitution or 
marijuana, it is not inconceivable that some provinces or 
municipalities might move to enact laws designed to "recriminalize" 
or restrict those activities in some way, Baker said.
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MAP posted-by: Jay Bergstrom