Pubdate: Wed, 18 Jun 2014
Source: Calgary Herald (CN AB)
Copyright: 2014 Postmedia Network
Contact:  http://www.calgaryherald.com/
Details: http://www.mapinc.org/media/66
Author: Douglas Quan
Page: B7

'BACK-DOOR' CRIMINAL LAW DECRIED

Approach Raises Questions About Due Process

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.

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 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.

But Baker harkens 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."

Following the 1988 Supreme Court decision striking down Canada's 
abortion law as unconstitutional, Dr. Henry Morgentaler moved to open 
an abortion clinic in Nova Scotia.

The province responded by passing a law that prohibited abortions 
outside hospitals.

Even though the law dealt with health care, which is the domain of 
provinces, and even though the province argued that the objective of 
the law was to prevent the privatization of medical services, the top 
court in 1993 found that the law's "pith and substance" was the 
recriminalizing of abortion and an "indivisible attempt by the 
province to legislate in the area of criminal law." The law was 
struck down. Since that decision, provinces and municipalities have 
been given more flexibility to legislate in the criminal arena. If 
the federal government 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