Pubdate: Wed, 18 Jun 2014
Source: National Post (Canada)
Copyright: 2014 Canwest Publishing Inc.
Contact: http://drugsense.org/url/wEtbT4yU
Website: http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Douglas Quan
Page: A6

CRIMINAL CODE AUTHORITY GETS USURPED

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," Mr. Baker said in an email.

Last month, Minnesota's 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 Criminal Code by provinces and 
municipalities shows no signs of slowing, Mr. 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 discussion paper suggested. That was 
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.

Besides the Ontario civil forfeiture law and Edmonton public fighting 
bylaw, Mr. 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.

Mr. Baker admits 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.
- ---
MAP posted-by: Jay Bergstrom