Pubdate: Wed, 18 Jun 2014
Source: Windsor Star (CN ON)
Copyright: 2014 The Windsor Star
Contact:  http://www.canada.com/windsorstar/
Details: http://www.mapinc.org/media/501
Author: Douglas Quan
Page: C6

CREATING 'CRIMINAL LAW THROUGH BACK DOOR' A GROWING

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.
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MAP posted-by: Jay Bergstrom