The Provincial Power to (Not) Prosecute Criminal Code Offences
Dennis Baker
Could the Province of Ontario have La province de l’Ontario pourrait-elle refused to prosecute the new “com- refuser d’intenter des poursuites aux modification of sexual activity” crim- termes de la nouvelle infraction crimi- inal offence, as passed by the Federal nelle de « marchandisation des activités Government in response to Bedford? sexuelles » que le gouvernement fédéral That question is the subject of this a adoptée en réponse à l’arrêt Bedford ? paper. While there are clear precedents C’est la question que je me propose for provincial non-enforcement, those d’explorer dans cet article. Certes, il instances of provincial non-enforcement existe des précédents clairs en matière have seemingly been tolerated by a Fed- de non-application provinciale, ces 2017 CanLIIDocs 118 eral Government ambivalent about its exemples de non-application ayant été own laws. My position is that the prov- vraisemblablement tolérés par un gou- inces have at least a concurrent consti- vernement fédéral ambivalent au sujet de tutional power over the prosecution of ses propres lois. Selon moi, les provinces criminal law offences and a concomitant ont au moins un pouvoir constitutionnel power to choose not to prosecute a concurrent en matière de poursuites validly enacted federal law. This position relatives à des infractions criminelles reflects an understanding of the original et un pouvoir concomitant de choisir de bargain struck in 1867 that sees the ne pas intenter de poursuites en vertu criminal justice powers separated func- d’une loi fédérale validement adoptée. tionally, which provides the opportunity Cette position découle d’une compré- for effective “checks and balances” in hension de l’entente initiale conclue en the moderation of criminal law. After dis- 1867 qui prévoit la séparation fonction- cussing the delicate balance established nelle des pouvoirs en matière de justice by the British North America Act, 1867, pénale, laquelle permet d’exercer un the judicial unsettling of this scheme in contrepoids efficace et donc de favori- the early 1980s will be briefly examined ser un certain équilibre en droit crimi- and questioned. While this “unbalan- nel. Après avoir discuté de l’équilibre cing” of the criminal justice powers délicat établi par l’Acte de l’Amérique has likely inhibited provincial exercises du Nord britannique de 1867, on analy- of their prosecutorial authority—or at sera brièvement les aspects judiciaires least contributed to the confusion about déstabilisants de ce régime au début their operation—a provincial power of des années 1980. Bien que le « déséqui- non-enforcement remains viable even libre » des pouvoirs en matière de justice under the Court’s “delegated” approach. pénale ait vraisemblablement entravé Several objections to non-enforcement l’exercice du pouvoir provincial d’inten- are considered and found unwarranted ter des poursuites, ou ait contribué à in light of the overall discretionary tout le moins à semer la confusion au
419 nature of criminal prosecution. Properly sujet de son fonctionnement, un pouvoir understood and exercised, however, provincial de non-application demeure provincial non-enforcement is best viable, même en vertu de l’approche de understood as harmonious with the « délégation » des tribunaux. On exami- constitutional balance struck in 1867 and nera diverses objections à la non-applica- could continue to offer salutary effects tion, jugées injustifiées à la lumière de la for the administration of criminal law in nature éminemment discrétionnaire des Canada. poursuites pénales. Quand il est adéqua- tement compris et exercé, ce pouvoir de non-application provincial peut cepen- dant être considéré comme compatible avec l’équilibre constitutionnel établi en 1867 et pourrait continuer d’offrir des effets salutaires pour l’administration de la justice pénale au Canada. 2017 CanLIIDocs 118
420 CONTENTS
The Provincial Power to (Not) Prosecute Criminal Code Offences Dennis Baker
Introduction 423
I. The Checks and Balances in Criminal Justice Federalism 426
II. The Unbalancing of the Criminal Justice Powers, 1978–1983 434
III. The Provincial Power to (Not) Prosecute 439
Conclusion 447 2017 CanLIIDocs 118
421 2017 CanLIIDocs 118 The Provincial Power to (Not) Prosecute Criminal Code Offences
Dennis Baker*
INTRODUCTION 2017 CanLIIDocs 118 In response to the Supreme Court of Canada’s decision in Bedford,1 the Fed- eral 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
* Dennis Baker (University of Guelph). The author would like to thank Rainer Knopff, James Kelly, Matthew Hennigar, Troy Riddell, Byron Sheldrick, Kate Puddister, and the anonymous reviewers for all their comments and suggestions. 1 Canada (AG) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. 2 Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of Canada in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts, 2nd Sess, 41st Parl, 2014, cl 286 (assented to 6 November 2014; Protection of Communities and Exploited Persons Act, SC 2014, c 25, s 20). 3 John Ivison, “Provinces Could Kill New Prostitution Law by Refusing to Enforce it”, National Post (8 December 2014), online:
423 424 Revue de droit d’Ottawa • 48:2 | Ottawa Law Review • 48:2 prosecute cases brought under this law.”5 Wynne was less sure of her cap- acity 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 “com- modification 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 Code8 — those instances of
provincial non-enforcement had seemingly been tolerated by a Federal 2017 CanLIIDocs 118 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 long- gun 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 feder- alism controversies over the Firearms Act were never clearly resolved10 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-enforce-
5 Ivison, “Provinces Could Kill New Prostitution Law”, supra note 3. 6 Andrea Houston, “Premier Wynne Blasts New Federal Anti-Prostitution Law”, Now Toronto (7 December 2014), online:
12 Lorne Sossin, “Federal-Provincial Dispute Over Ontario Pension Plan has to Stop”, The Globe and Mail (10 August 2015), online:
I. THE CHECKS AND BALANCES IN CRIMINAL JUSTICE FEDERALISM
The constitutional authority to create and administer criminal law is found 2017 CanLIIDocs 118 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 “Administra- tion 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 crim- inal justice, where the federal Parliament legislates what is and what is
Transportation on the Administration of the Criminal Justice System in Canada” (1984) 33 UNBLJ 347; Nancy E Brown, “Balancing the Powers to Prosecute in Canada: Comment on AG Canada v CN Transport and R v Wetmore, Kripps Pharmacy” (1983) 29 McGill LJ 699; John D Whyte, “The Administration of Criminal Justice and the Provinces” (1984) 38 CR (3d) 184 (“When constitutional integrity cannot be considered to have compelled this result, the inevitable sense that one has of these cases is regret” (ibid at 197)). Years later, Patrick Monahan, when recounting Wetmore (supra note 14), for example, says “it would appear that Parliament could amend the definition of ‘attorney general’ . . . so as to restrict or limit the role of the provincial attorney general in relation to the prosecution of crim- inal offences” [emphasis added] (Patrick J Monahan,Constitutional Law, 2nd ed (Toronto: Irwin Law, 2002) at 352). The “appear” suggests some ambivalence on this point or at least some uncertainty whether the issue was definitively settled. 17 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(27), reprinted in RSC 1985, Appendix II, No 5. 18 Ibid, s 92(14). The Provincial Power to (Not) Prosecute Criminal Code Offences 427 not a criminal offence, but the provinces are charged with the applica- tion 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 crim- inal justice circa 1867, where (1) prosecutorial power was radically decen- tralized; (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 2017 CanLIIDocs 118 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 ser- iously the division of criminal justice powers are compatible with non-en- forcement.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
19 Wetmore, supra note 14 at 305. 20 Richard Simeon and David Cameron’s notion that federalism, at least in part, is “linked to the idea of liberal constitutionalism, emphasizing limits on majority rule through the sep- aration of powers, and the constraints on both local and national majorities imposed by the constitutional division of powers” (at 282) appears compatible with such an approach (they also note the federal relations may become “highly conflictual” at 283) (Richard Simeon & David Cameron, “Intergovernmental Relations and Democracy: An Oxymoron If There Ever Was One?” in Herman Bakvis & Grace Skogstad, eds, Canadian Federalism: Performance, Effectiveness, and Legitimacy(Don Mills, Ont: Oxford University Press, 2002) 278). Donald Smiley’s definition of a federal state, where federal powers are “distributed” and “not subject to change by the other level of government,” would also be compatible with such an approach (Donald V Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987) at 2, quoted with approval in Monahan, supra note 16 at 101). This approach, at least at first blush, also appears compatible with Wade Wright’s notion of “intergovernmental dialogue” (Wade K Wright, “Facilitating Intergovernmental Dia- logue: Judicial Review of the Division of Powers in the Supreme Court of Canada” (2010) 51 SCLR (2d) 625). 428 Revue de droit d’Ottawa • 48:2 | Ottawa Law Review • 48:2 1980s. With this understanding in mind, the appropriateness of a provin- cial 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 pri- marily 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 2017 CanLIIDocs 118 public prosecutors in pre-Confederation Canada — it was described as a scheme “to introduce a complete local system for the efficient administra- tion 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 prosecu- tor — 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 col- onies by the time of Confederation. The appeal of what we would now call “subsidiarity”24 was especially prized in criminal justice matters. This
21 Stenning, supra note 16, ch 1–2. 22 Paul Romney, Mr. Attorney: The Attorney General for Ontario in Court, Cabinet, and Legisla- ture, 1791–1899 (Osgoode Society, 1986) at 221 [emphasis added]. 23 See e.g. Criminal Code, RSC 1985, c C-46, s 507.1. Interestingly, to preserve local autonomy, the possibility of private prosecution remains formally available even today, although judicial interpretations and statutory reforms have given the provincial Attorneys General considerable powers to curtail such prosecutions, making them very unlikely. 24 The Court has recognized — somewhat unevenly — the notion that “subsidiarity” is an important element of Canadian federalism. See Eugénie Brouillet, “Canadian Federalism and the Principle of Subsidiarity: Should We Open Pandora’s Box?” (2011) 54:2 SCLR 601 (“Over the last 10 years, the Supreme Court of Canada has referred explicitly to the principle of subsidiarity even though it is not found in the federation’s formal constitutional struc- ture” (ibid at 603)); Spraytech v Hudson, 2001 SCC 40 at para 3, [2001] 2 SCR 241 (the Court explained the principle as the notion that “law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity”); Rogers Communication Inc v Châteauguay (City), 2016 SCC 23, [2016] 1 SCR 467 The Provincial Power to (Not) Prosecute Criminal Code Offences 429 norm was widespread “with local administration of justice, local police forces, local juries, and local prosecutors” and it was, at least according to Justice Dickson, “perpetuated and carried forward into the Constitu- tion through [section] 92(14).”25 This element of subsidiarity is key, even if one does not subscribe to the “checks-and-balances” approach to fed- eralism offered in this paper, it is hard to deny that the Founders did not anticipate the provinces continuing to play an important decision-mak- ing role in criminal justice. Canada did not go as far as the Americans and Australians in institutionalizing the norm of decentralized criminal justice; section 92(14) gave Canadian provinces only the power to admin- ister criminal justice, whereas the American and Australian states also have the power to enact the substance of criminal law. Australia’s consti- tution, of course, came after Canada’s, but according to Desmond Mor- ton, the pre-existing American experience made the merits of national
power over substantive criminal law “obvious” to founders like John A. 2017 CanLIIDocs 118 Macdonald,26 and led to section 91(27). In the debates over the Confed- eration, Macdonald stated that “the determination of what is crime and what is not and how crime should be punished” should be assigned to the federal government.27 His comments did not seem to generate much (if any) opposition.28 Indeed, one of the staunchest defenders of provincial autonomy, Oliver Mowat, praised the potential for a uniform law, arguing that it “would weld us into a nation.”29 That this substantive national power went hand in hand with local control of criminal prosecution no doubt also attracted Mowat’s support. The result was to establish criminal justice as one of only two areas of legislative jurisdiction in the Canadian Constitution (the other being mar- riage and its solemnization) that are divided functionally between the fed- eral and provincial jurisdictions. This division is a clear departure from the treatment of other powers in sections 91 and 92, where the assignments
(the most recent statement on subsidiarity occurs in Justice Gascon’s concurrence); Refer- ence re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 SCR 457 (the principle has not been used in the context of a Criminal Code offence, but it was discussed with respect to the criminal law power in this case, and the Court divided sharply over its application). 25 Hauser, supra note 14 at 1032. 26 Desmond H Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: University of Toronto Press, 1989) at 60. 27 Ibid. 28 Ibid. 29 GP Browne, ed, Documents on the Confederation of British North America (Toronto: McClel- land and Stewart, 1969) at 120. 430 Revue de droit d’Ottawa • 48:2 | Ottawa Law Review • 48:2 are whole and discrete areas of policy.30 As such, more general approaches to Canadian federalism do not obviously correspond to the specialized division in criminal justice. In explaining the British North America Act, 1867 to the British Parliament in 1867, the Earl of Carnarvon promoted it in exactly those terms:
To the Central Parliament will also be assigned the enactment of criminal law. The administration of it indeed is vested in the local authorities; but the power of general legislation is very properly reserved for the Central Parliament.31 Justice Dickson would later explain that the “separation of substantive and administrative responsibility is impractical in most areas of federal jurisdiction other than criminal law,”32 but, with respect to criminal law, the functional division was already in place by 1867 and, for the most part,
functioning well. 2017 CanLIIDocs 118 To this, we might add the historical fact that Criminal Code prosecu- tions were conducted exclusively by the provinces from 1867 to 1969, and that early cases of judicial review “clearly indicate that the supervision and control of criminal proceedings lies in the provincial Attorney General.”33 Indeed, the point seemed so obvious to actors in the immediate post-Con- federation era that it is rarely the subject of litigation or comment. Here, the Niagara Falls Bridge (1873)34 case is instructive. Although the case con- cerned a federal work (an international bridge), Vice-Chancellor Strong of the Court of Chancery makes an analogy to “the whole system of the administration of criminal justice” where:
The power of making criminal laws is in the Legislature of the Dominion; but it has never been doubted that the Attorney-General of the Province is the proper officer to enforce those laws by prosecution in the Queen’s Courts of justice in the Province.35
30 Herman Bakvis, Gerald Baier & Douglas Brown, Contested Federalism: Certainty and Ambigu- ity in the Canadian Federation (Toronto: Oxford University Press, 2009) at 11; see also Den- nis Baker, “The Temptation of Provincial Criminal Law” (2014) 57:2 Can Public Adminis- tration 275 at 277 [Baker, “Temptation”]. 31 UK, HL, Parliamentary Debates, 3d ser, vol 185, col 557 at 564 (19 February 1867). 32 Wetmore, supra note 14 at 305. 33 Hauser, supra note 14 at 1047. 34 Attorney General v Niagara Falls International Bridge Co (1873), 20 Gr 34, 1873 CarswellOnt 17 [cited to Gr]. 35 Ibid at 38 [emphasis added]. The Provincial Power to (Not) Prosecute Criminal Code Offences 431 Such was the state of conventional thinking prior to the enactment of the Criminal Code of Canada in 1892. As R v St Louis36 shows, this endorsement of provincial authority continued into the early days of the Code:
[T]he administration of justice in each of the Provinces is entrusted to the Provincial Government, and it is therefore the provincial law officers of the Crown whose duty it is to conduct or to supervise, as the case may be, all criminal prosecutions.37 The holding in St Louis clearly suggests at least some independent deci- sion-making on the part of the province (“to conduct or to supervise”), implying an opportunity to check or moderate the actions of the other level of government. To use the most recent metaphor in Canadian constitu- tionalism, provincial control of criminal prosecutions was firmly embed- ded in our “constitutional architecture.”38
Despite the strongly held and long-standing judicial assumption that 2017 CanLIIDocs 118 the provinces held such a power, Chief Justice Laskin claims that allowing provincial prosecutions to continue post-Confederation was nothing more than a “practical accommodation.”39 Like other attempts to reduce the political ideas of the Founders to mere pragmatism,40 Laskin’s sug- gestion discounts the possibility that the Founders were attempting to enhance liberty through their partial federalization of criminal justice. Elsewhere, I have described the Canadian constitution as incorporating checks-and-balances as a means to protecting liberty,41 and I have argued that the division of criminal justice powers should work, at least in part, to protect liberty from provincial intrusions on the federal power to legislate
36 (1897), [1898] 1 CCC 141, 1897 CarswellQue 46 [cited to CCC]. 37 Ibid at 145. (Justice Wurtele allows that a federal Attorney General may occupy a “position which is analogous to that of a private prosecutor” (ibid at 146)). 38 Reference re Senate Reform, 2014 SCC 32 at para 27, [2014] 1 SCR 704. I have expressed some reservations about this metaphor in Dennis Baker & Mark D Jarvis, “The End of Informal Constitutional Change in Canada?” in Emmett Macfarlane, ed, Constitutional Amendment in Canada (Toronto: University of Toronto Press, 2016) 185 at 200. See also Kate Glover, “Structure, Substance and Spirit: Lessons in Constitutional Architecture from the Senate Reform Reference” 67 SCLR (2d) 221. 39 CN, supra note 14 at 225. 40 See Ged Martin, Britain and the Origins of Canadian Confederation, 1837–67 (Vancouver: UBC Press, 1995) at 64 (“It is hard to believe that the Fathers of Confederation took their own arguments very seriously”). 41 Dennis Baker, Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation (Montreal: McGill-Queen’s University Press, 2010) at 53–63, 84–89; contra David Schnei- derman, Red, White, and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture (Toronto: University of Toronto Press, 2015) at 118–158. 432 Revue de droit d’Ottawa • 48:2 | Ottawa Law Review • 48:2 the substance of criminal law.42 As Ajzenstat notes, the preservation of lib- erty was a primary concern of the Founders.43 This pro-liberty approach to federalism was maintained by the advocates of provincial autonomy in the immediate post-Confederation period, as Vipond documents in his book- length discussion of this point.44 By dividing the potentially oppressive power to imprison citizens between two levels of government, the Found- ers, and those who followed, could hope that extreme or wrong-headed federal criminal laws might be mitigated by provincial non- or under-en- forcement. Significantly, the converse is also liberty-enhancing: provincial prosecutors, perhaps too caught up in local passions and concerns, would still be limited to applying (the hopefully more moderate) federal criminal
42 Baker, “Temptation”, supra note 30 at 284–289. 43 Janet Ajzenstat, The Canadian Founding: John Locke and Parliament (Montreal: McGill- Queen’s University Press, 2007). See Ajzenstat’s groundbreaking work in reviving inter- 2017 CanLIIDocs 118 est in the political ideas of the Founders (Janet Ajzenstat et al, eds, Canada’s Founding Debates (Toronto: University of Toronto Press, 2003); Janet Ajzenstat & Peter J Smith, eds, Canada’s Origins: Liberal, Tory, or Republican? (Ottawa: Carleton University Press, 1995); Janet Ajzenstat, The Once and Future Canadian Democracy: An Essay in Political Thought (Montreal: McGill-Queen’s University Press, 2003) (challenged the orthodox sociological view advanced in G Horowitz, “Conservatism, Liberalism, and Socialism in Canada: An Interpretation” (1966) 32:2 Can J Economics & Political Science 143)). See also Seymour Martin Lipset, Revolution and Counterrevolution: Change and Persistence in Social Structures (New York: Basic Books, 1968) (also challenged Horowitz’s orthodox sociological view); Seymour Martin Lipset, Continental Divide: The Values and Institutions of the United States and Canada (New York: Routledge, 1990) (the Canadian Founders valued liberty less than their American counterparts). While the Horowitz-Lipset claim might describe some Canadians in some historical periods, it is difficult to accept it as a characterization of the Confederation debates, where “liberty” is repeatedly invoked (see especially Ajzenstat, Canada’s Founding Debates at 13–75). While there are competing and distinct claims about what form of liberty might be privileged (see Michel Ducharme, The Idea of Liberty in Can- ada During the Age of Atlantic Revolutions, 1776–1838 (Montreal: McGill-Queen’s University Press, 2014)), the Horowitz-Lipset contention — that liberty was, by design, subordinate to order in the Canadian founding — is at best over simplistic and likely inaccurate. 44 Robert C Vipond, Liberty & Community: Canadian Federalism and the Failure of the Constitu- tion (Albany: State University of New York Press, 1991). Some also see the checks-and-bal- ances of Canadian federalism in the early decision of the Judicial Committee of the Privy Council: Schneiderman describes Lord Watson’s opinions in Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick [1892] AC 437 and Ontario (AG) v Canada (AG) [1896] AC 348 (“Local Prohibition”) as “repositories of counter power” in a federal state and, as John Saywell describes, rooted in “a judicial penchant for limited or weak government” with an eye towards protecting “personal liberty” (David Schneider- man cited in John T Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (Toronto: University of Toronto Press, 2002) at 143). See also Ian Peach, “The Practical Defence of Decentralization” in Ruth Hubbard & Giles Paquet, eds, The Case for Decentralized Federalism (Ottawa: University of Ottawa Press, 2010) 43 at 48–51. The Provincial Power to (Not) Prosecute Criminal Code Offences 433 law. Non-enforcement, of course, cannot be liberty-reducing (even if it may introduce an unjust element of arbitrariness).45 We can understand this design as a sincere attempt to reconcile the desire for uniform national criminal law with local control of the admin- istration of justice, all with an eye to liberty and moderate government. Such an approach is consistent with the view that the British North Amer- ica Act, 1867 establishes “a remarkably fragmented system of power” with a “system of checks and balances at least as extensive as the American constitution of the same era.”46 Indeed, David Mills, one of the leading legal-political thinkers of late 19th century Canada (and future Minister of Justice and Supreme Court Justice), advanced his understanding of the “federal principle” as relying on the levels of government “mutually checking each other” in pursuit of liberty and freedom.47 While this was not an uncontested account of Canadian federalism, it was certainly a 2017 CanLIIDocs 118 45 I take the point of one of the anonymous reviewers that, to the extent that criminal behav- iour is not addressed, it can be liberty-reducing from the standpoint of the victim(s) of such behaviour. This sentence reflects the traditional criminal justice concern with the liberty of the accused. Other liberty interests — including those of victims and society at large — might be better addressed by additional criminal justice measures and other policies. 46 Tom Flanagan, “Canada’s Three Constitutions: Protecting, Overturning and Reversing the Status Quo” in Patrick James, Donald E Abelson & Michael Lusztig, eds, The Myth of the Sacred: The Charter, the Courts, and the Politics of the Constitution in Canada (Montreal: McGill-Queen’s University Press, 2007) 125 at 127, 129 (while many of the Founders clearly thought that the American federation had been a failure (as it would have appeared in the 1860s), Macdonald and others attributed this failure to the US Constitution’s assignment of the residual power to the state rather than the national government). As Vipond writes, “[t]he irony is that, having rejected one model of American federalism, these Canadian reformers came in their own way and on their own terms to reconceptualize federalism in a way that is strongly reminiscent of another American precedent — the Federalists’ clas- sic exposition of constitutional federalism” (Vipond, supra note 44 at 16). In other words, they were not against a checks-and-balances approach to federalism, but instead were concerned that a better (i.e. more centralized) balance be established. Indeed, a number of provisions, like the powers of disallowance and reservation (see Constitution Act, 1867, supra note 17, ss 55, 56, 57, 90) are clearly designed to allow the federal government to check problematic provincial legislation (an “elaborate system of checks on local power”) (JR Mallory, Social Credit and the Federal Power in Canada (Toronto: University of Toronto Press, 1954) at 8). These controversial provisions have rightly fallen to the doctrine of desuetude, but they are clear indications that the Founders did not reject intergovern- mental checks of power in principle (Vipond, supra note 44 at 16 (the provincial autono- mist movement in the years following Confederation would itself assert a rebalancing of the federal arrangements)). On the Founders’ acceptance of federalism as a check, see also Frederick Vaughan, The Canadian Federalist Experiment: From Defiant Monarchy to Reluctant Republic (Montreal: McGill-Queen’s University Press, 2003) at 91–114. 47 House of Commons Debates, 1st Parl, 4th Sess, vol 4 (28 February 1871) at 200 as cited in Vipond, supra note 44 at 40–41. 434 Revue de droit d’Ottawa • 48:2 | Ottawa Law Review • 48:2 well-known and defensible articulation of what purpose Canadian fed- eralism was intended to serve. This thread of political thinking — and its opposition — would be echoed a hundred years later in the disagreement on the Supreme Court bench over the nature of the criminal justice powers.
II. THE UNBALANCING OF THE CRIMINAL JUSTICE POWERS, 1978–1983 Laskin and Dickson’s competing visions played out in a flurry of Supreme Court cases in the late 1970s and early 1980s.48 In Di Iorio, the Court was asked to determine whether a provincial commission of inquiry into organized crime was an ultra vires intrusion on the federal power.49 While the majority allowed the provincial commission to continue, Chief Jus- tice Laskin, writing in dissent with Justice de Grandpré, denied that the
province had any constitutional authority over criminal justice whatso- 2017 CanLIIDocs 118 ever, arguing instead that the administrative powers over criminal law were part and parcel of section 91(27) and its power over “Procedure in Criminal Matters.”50 This approach would ultimately prevail in CN and Wetmore, with Laskin, now writing for the majority, declaring that “there is nothing in s. 92(14) which embraces prosecutorial authority in respect of federal criminal matters.”51 In the language of a modern political scientist, “administration” would surely encompass prosecution, but Laskin points to federal legislation enacted soon after Confederation, such as The Canada Temperance Act
48 Hauser, supra note 14; Aziz, supra note 14; CN, supra note 14; Wetmore, supra note 14. 49 Di Iorio v Warden of the Montreal Jail, [1978] 1 SCR 152, 73 DLR (3d) 491 [Di Iorio]. 50 This is a questionable expansion of what is meant by “Procedure in Criminal Matters.” To be sure, since Confederation, federal legislation has governed the substance of criminal pro- cedure. See e.g. Canada Evidence Act, RSC 1985, c C-5 (the Act provides substantive guidance for the conduct of criminal proceedings. The “spousal privilege” of not being compelled to disclose communications made by your partner during marriage is an example of a substan- tive rule of criminal procedure enacted by federal legislation pursuant to Constitution Act, 1867, supra note 17, s 91(27). Demonstrating the federal power over the substance of criminal evi- dence law, the Federal Government recently removed this long-standing privilege in Bill C-32 (An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts, 2nd Sess, 41st Parl, 2015). However, a legislative power over substance is qualitatively different from the power to enforce and “administer” criminal law. Nothing in the immediate post-Confederation legislative record suggests an accepted federal power over the appointment of prosecutors, the direction of prosecutions, or regulation of prosecutorial behaviour and conduct. All such legislation and regulation emanated from the provincial level (Stenning, supra note 16 at 190). 51 CN, supra note 14 at 223. The Provincial Power to (Not) Prosecute Criminal Code Offences 435 (1886),52 The General Inspection Act (1886),53 and The Bank Act (1890)54 that “provided for prosecutions by federally-appointed inspectors”55 as proof that section 92(14) could not have been intended to assign prosecutor- ial power to the provinces. However, the statutes mentioned by Laskin only concern non-criminal or quasi-criminal matters. Laskin might have strengthened his argument by referring to the 1868 Act creating the federal Department of Justice56 because it might be understood as endorsing fed- eral prosecutions. Unfortunately for Laskin’s position, that Act expressly charges the Federal Minister of Justice with “superintendence of all mat- ters connected with the administration of Justice in Canada, not within the jurisdiction of the Governments of the Province composing the same.”57 Laskin’s complementary argument — that the provinces did not “purport to enact post-Confederation legislation of their own to command prosecutorial authority in respect of federal criminal law offences”58 — is at odds with
“the history of provincial legislation,” as painstakingly documented by 2017 CanLIIDocs 118 Stenning,59 and only true to the extent that the provinces sought to regu- late all prosecutions, criminal and otherwise. Moreover, Laskin’s denial of a provincial prosecutorial power would seem to be at odds with the overwhelming practice of criminal prosecu- tions that are conducted by the province, then and now. For him, however, the existence of such prosecutions could be attributed not to a constitu- tional power, but instead to a statutory delegation from the federal gov- ernment to the provinces. Section 2 of the Criminal Code initially defined “Attorney General” as “the Attorney General of a province in which pro- ceedings to which this Act applies are taken.”60 Whether this was simply a delegation from the federal government to the provinces, as Laskin sug- gests, or merely a reflection of the constitutional division of power was a moot point. Or it was until 1969, when Pierre Trudeau’s Liberal Gov- ernment amended section 2 to allow for additional federal prosecutions: the Attorney General of Canada could now prosecute “with respect to
52 RSC 1886, c 16. 53 RSC 1886, c 99. 54 RSC 1890, c 31. 55 CN, supra note 14 at 221. 56 The Department of Justice Act, RSC 1868, c 39. 57 Stenning, supra note 16 at 73 [emphasis added]. 58 CN, supra note 14 at 221. 59 Stenning, supra note 16 at 79ff. 60 In the Yukon and Northwest Territories, the Attorney General of Canada assumed these responsibilities. 436 Revue de droit d’Ottawa • 48:2 | Ottawa Law Review • 48:2 proceedings instituted at the instance of the Government of Canada.”61 This change set the stage for the series of cases (Hauser, CN, and Wetmore) in which federal prosecutorial authority would be challenged and upheld. For Justice Dickson, this authority amounted to “a breach of the bargain struck at Confederation,”62 but, under the “delegated” approach, Laskin and the Court would permit such federal prosecutions to co-exist with the bulk of provincially prosecuted offences. It is important to emphasize that CN and Wetmore were decided in the context of what might be considered “quasi-criminal” or even “non- criminal” law. The law at issue in CN was the Combines Investigation Act and in Wetmore it was the Food and Drugs Act. Both Acts were considered a valid exercise of the federal criminal law power; thus, permitting federal prosecution could be considered as nothing more than the federal govern- ment enforcing its own legislation. But this put the Court in an awkward
position with respect to the Criminal Code, where the federal legislation 2017 CanLIIDocs 118 was traditionally enforced by provinces. In one ambiguous passage of CN, Laskin attempts to finesse this significant complication by noting that the Combines Investigation Act is different from “aCriminal Code offence, an important distinction in my opinion.”63 Making any distinction on the basis of the choice of legislative instrument is difficult, since theCriminal Code of Canada is not constitutionally entrenched or otherwise different from other federal legislation. Yet, it is hard not to take Laskin’s comment as recognition that Criminal Code offences are routinely prosecuted by prov- incial officials with little desire on the part of either level of government to change that reality. Justice Dickson, for his part, continued to insist that it mattered whether the legislation was solely justified by the criminal law
61 Reasons for the change are not offered during the Parliamentary Debates (unsurprising given the other more controversial topics in the Bill) and Justice Minister Turner’s scant testimony on this point manifested “apparent confusion and lack of understanding by the Canadian government of the constitutional issues” (R Camille Cameron, “Prosecu- torial Control in Canada: The Definition of Attorney-General in Section 2 of theCriminal Code” (1981) 30 UNBLJ 43 at 43, 45). The addition of federal prosecutions may have been animated by a concern that some provisions were being under-enforced in this era of con- siderable social change. There were only 431 convictions for cannabis possession in 1967, for example, but, after the 1969 changes, federal prosecutors convicted 8,389 offenders in 1971 (Patricia G Erickson, Cannabis Criminals: The Social Effects of Punishment on Drug Users (Toronto: Alcoholism and Drug Addiction Research Foundation, 1980) at 22). During this period, punishment for possession also changed to allow for fines instead of imprison- ment, suggesting a ‘net-widening’ effect ibid( at 24–6). 62 Hauser, supra note 14 at 1032. 63 CN, supra note 14 at 217. The Provincial Power to (Not) Prosecute Criminal Code Offences 437 power or by the criminal law power in combination with some other head of power. In his view, the Combines Investigation Act was an exercise of both the criminal law power and the trade and commerce power (section 91(2)); thus, federal prosecution was appropriate. The Food and Drugs Act, on the other hand, could only be justified under the criminal law power; thus, fed- eral prosecution was unconstitutional. As the lone holdout, however, Dick- son could do nothing to change the new balance being struck by the Court. Laskin’s approach effectively unsettled what Justice Pigeon (in the earlier Di Iorio case) thought beyond alteration: “[i]t seems late in the day to strip the provinces of jurisdiction in respect of criminal justice which they have exercised without challenge for well over one hundred years.”64 Since no federal government has been bold enough to suggest that it should routinely prosecute core criminal offences — for example, assault, murder, or theft65 — we are left with the Court’s pronouncements on
prosecutorial authority in cases where the legislation’s criminal law con- 2017 CanLIIDocs 118 nection is tenuous. Might the constitutional case be different if it were an ‘ordinary’ Criminal Code offence at stake? Recent cases in banking (an exclusive federal power under section 91(15)) have returned to the notion that heads of power have “an unassailable core of jurisdiction” that pre- vents the other level from “impermissibly trenching” upon the core.66 But this renewed concept, to be used only in “rare circumstances,” is yet to be applied to any criminal law power.67 The provincial constitutional author- ity to prosecute Criminal Code offences is, at best, unclear. The ultimate result of the Court’s finding in favour of federal consti- tutional power, and the Criminal Code’s statutory delegation to the prov- incial Attorneys General, is the functional concurrency that reigns today.
64 Di Iorio, supra note 49 at 206. 65 Some otherwise core offences may be prosecuted federally in some circumstances; a murder committed extraterritorially, for example, might be subject to federal prosecution. Such exceptions do not impair the point that, in the normal course of events, federal pros- ecution is rarely claimed for “core offences.” 66 Bank of Montreal v Marcotte, 2014 SCC 55 at para 62, [2014] 2 SCR 725. 67 Scowby v Glendenning, [1986] 2 SCR 226, 32 DLR (4th) 161 [cited to SCR] (The Court seemed to identify a core federal criminal power: “The terms of s. 91(27) of the Constitution must be read as assigning to Parliament exclusive jurisdiction over criminal law in the widest sense of the term. Provincial legislation which in pith and substance falls inside the per- imeter of that term broadly defined isultra vires” (ibid at 238)). The Scowby Court relies on Westendorp v The Queen [1983] 1 SCR 43, 144 DLR (3d) 259 as a precedent but that decision, like the dicta in Scowby, is very much at odds with recent developments in criminal justice federalism (including the rise of “provincial criminal law”) (see Baker, “Temptation”, supra note 30 at 284–289). 438 Revue de droit d’Ottawa • 48:2 | Ottawa Law Review • 48:2 In this regard, the criminal justice powers simply flow with the “dominant tide” of Canadian federalism, where an easily identified “double aspect” of virtually any matter permits both levels of government to act.68 Federal prosecutors today prosecute drug crimes, terrorism cases, and immigration issues, while provincial prosecutors continue to prosecute the majority of Criminal Code offences. Difficult jurisdictional questions can arise when the offender is charged with multiple offences that span the federal-provincial divide — a frequent problem whenever drugs (federal) and violence (prov- incial) are combined. In such cases, the operational norm has been co-oper- ation between the prosecutors of each level, and a letter from one level to the other granting authority to prosecute all charges can cure any formal limitation. In R v Trang, an offender challenged the constitutionality of such measures but was rebuffed,69 one suspects primarily because the criminal justice system would be further afflicted by delay and duplication if the for-
mal assignments were adhered to more strictly. 2017 CanLIIDocs 118 While practical solutions address the operational problems, the for- mal constitutional narrowing of section 92(14) might explain some of the provincial reticence to use their prosecutorial powers to blunt federal criminal laws of which they disapprove. Whereas once provincial Attor- neys General may have felt constitutionally empowered to play a stronger role in the application of criminal law, the Court’s decisions have left them with the impression that they are merely agents or delegates who borrow from federal power and who have no constitutional authority of their own. Even the “delegated” approach, however, is best understood as permitting the non-enforcement of criminal law. If the provincial power is entirely statutory, then the delegation must be permissive (provincial prosecutors may prosecute). Otherwise, we are left with the awkward proposition that federal legislation may define, regulate, and add to the duties of provincial officers (and this would be substantially more intrusive than allowing a parallel federal power to prosecute by federal officials).70 If the province
68 OPSEU v Ontario (AG), [1987] 2 SCR 2 at 18, 59 OR (2d) 671. 69 R v Trang, 2001 ABQB 150 at para 34, 198 DLR (4th) 362 (after having “carefully read the cases” on prosecutorial authority, Justice Binder found that the Supreme Court “has affirmed at least concurrent constitutional jurisdiction over prosecution of criminal offences” ibid( )); see also R v Luz, (1988) 5 OR (3d) 52 at 58, 1998 CanLII 4529 (Ont Sup Ct) (where a delegation letter was deemed a “sensible and fair procedure”). 70 See R v S (S), [1990] 2 SCR 254, 57 CCC (3d) 115 (where the Court declined to interpret the federal Youth Criminal Justice Act as imposing obligations on the provincial governments). As Carter points out, the Court relied on the permissive legislative drafting (“may”) and left open the question of what would result if the language had been mandatory (“must”) (Carter, supra note 9 at 178, n 62). The Provincial Power to (Not) Prosecute Criminal Code Offences 439 has some constitutional authority — either exclusive or concurrent — then its position to refuse to prosecute is that much stronger. This is not to suggest that the “unbalancing” is unimportant. To the contrary, it has set the tenor for how concurrent prosecutions are viewed. Rather than the checks-and-balances approach, concurrent prosecution is seen through the prism of modern Canadian federalism’s disdain for legal forms, where those forms inevitably yield to either level of govern- ment’s aims and objectives.71 Instead of checking, the prosecutorial pow- ers are envisioned as running parallel. This parallel approach, I suspect, underpins some of the apprehensiveness about provincial non-enforce- ment, where a failure to prosecute might be construed as “interference.” Such apprehensiveness is misplaced. What remains is an examination as to whether there are any constitutional principles that might restrict such a provincial check. 2017 CanLIIDocs 118
III. THE PROVINCIAL POWER TO (NOT) PROSECUTE After the Court’s explicit diminution of their constitutional authority, it is understandable why some provinces would come to perceive themselves as mere prosecutorial agents of the federal government. Writing in 1989, Ontario’s former Attorney General Ian Scott noted that although he had “not yet formed a clear view based on principle about this issue,” he was inclined to think that his office had to prosecute even an “unconstitutional” federal law.72 For Scott, the question was one of “deference” and “after the broad policy decisions have been made in Ottawa, the provinces’ role has been reactive.”73 Scott emphasized that “in the criminal context the law we are prosecuting is not our law” and the Attorney General of Ontario is not “the best person to advance its policy justification.”74 In other words, it
71 Encapsulated best by Patrick Monahan’s “fundamental maxim of Canadian federalism”: “It is always possible to do indirectly what you cannot do directly” (Politics and the Constitu- tion: The Charter, Federalism and the Supreme Court of Canada (Toronto: Carswell, 1987) at 224). But see Gerald Baier, Courts and Federalism: Judicial Doctrine in the United States, Aus- tralia, and Canada (Vancouver: UBC Press, 2006) at 163. 72 The Honourable Ian Scott, “Law, Policy, and the Role of the Attorney General: Constancy and Change in the 1980s” (1989) 39:2 UTLJ (1989) 109 at 123. 73 Ibid at 116. 74 Ibid at 123–124. Writing in 2009, the late Ontario Court of Appeal Justice Marc Rosenberg strongly agreed with Scott’s inclination. Rosenberg acknowledges that a premier or cabinet minister “in full rhetorical flight” might sometimes announce “that controversial legislation will not be enforced in his province,” but Rosenberg considers such “[o]ccasional lapses” to be “the result of ignorance rather than intentional defiance,” and maintains that they “have 440 Revue de droit d’Ottawa • 48:2 | Ottawa Law Review • 48:2 is not the province’s role to second-guess what Parliament has done. Such an approach has clear roots in Laskin’s conceptualization of delegated prosecutorial authority. From the perspective of the checks-and-balances approach, of course, it is entirely appropriate — encouraged even — for such second-guessing to occur, largely in the hopes that the law will be moderated by selective and thoughtful provincial prosecution. Scott’s position — mechanical execution of federal law — is entirely at odds with the actual administration of criminal law. There are many provisions of the Criminal Code that are not enforced by the provinces as a matter of routine policy. Consider section 163(7), which prohibits the selling of “crime comics.” If Scott is right, and the provinces have no choice but to administer the policy choices of the federal Parliament with- out questioning their wisdom, then why is the Government of Ontario not routinely charging comic shop owners? Or what about the criminal
prohibitions against “blasphemous libel” in section 296? That section has 2017 CanLIIDocs 118 not been the subject of a prosecution since 1935 and Canadians would be shocked if every “goddamn” led to a criminal charge (and now the present paper is in violation of the Criminal Code)! These provisions are not enforced — despite being jurisdictionally valid criminal law — because they are foolish, antiquated, and probably unconstitutional under the Charter of Rights and Freedoms.75 While any prosecution of these laws would likely lead to a judicial invalidation on Charter grounds, the current non-enforcement is entirely attributable to provincial prosecutorial deci- sion-making. It cannot plausibly be said that the province must enforce all jurisdictionally valid federal criminal laws. The question of provincial non-enforcement must therefore be put in its proper context: within the vast discretion of prosecutors to exer- cise a relatively unchecked and unsupervised discretion to initiate and continue criminal prosecutions. As Scott himself recognized, “absolute
usually been quickly remedied” (The Honourable Marc Rosenberg, “The Attorney General and the Administration of Criminal Justice” (2009) 43:2 Queen’s LJ 813 at 822). 75 See Dennis Baker & Benjamin Janzen, Is it Time to Overhaul the Criminal Code of Canada? (Macdonald-Laurier Institute, 2013), online:
of non-prosecution would be more problematic than the same discretion 2017 CanLIIDocs 118 exercised on a case-by-case basis. Moreover, it would have to be defended in situations where the federal government desired enforcement — as they seemingly do not in the “crime comic” example — and where the provin- cial government refused on the basis of a provincial assessment of the merits of the criminal law. Three substantial objections to a provincial power of non-enforcement must be addressed: allowing it will (1) increase arbitrariness in the application of Canadian criminal law; (2) violate the rule of law norms about the “dispensing power”; and (3) improperly intro- duce politics into prosecutorial decision-making. Provincial non-enforcement surely raises the spectre of a “checker- board” of criminal laws across the country, but the broad discretion in individual cases already puts in doubt the notion that provincial non-en- forcement would undermine national uniformity. There is already con- siderable variance in the number of charges brought in different provinces for different offences. It is not uncommon for jurisdictions to emphasize certain crimes (e.g., car theft) and prosecute them more aggressively. What matters for national uniformity in criminal law — at least in the sense that
76 Ian G Scott, “The Role of the Attorney General and the Charter of Rights” (1986–1987) 29 Crim LQ 187 at 191 (Scott was writing before the decision in Nelles v Ontario, [1989] 2 SCR 170, 69 OR (2d) 448 [Nelles], which qualified that absolute immunity by allowing for a tort of malicious prosecution). 77 R v Anderson, 2014 SCC 41 at para 46, [2014] 2 SCR 167. 78 Nelles, supra note 76; Miazga v Kvello Estate, 2009 SCC 51, [2009] 3 SCR 339. 79 Henry v British Columbia (AG), 2015 SCC 24 at para 31, [2015] 2 SCR 214. 80 This is an uncontroversial component of the Shawcross doctrine, discussed below. 442 Revue de droit d’Ottawa • 48:2 | Ottawa Law Review • 48:2 John A. Macdonald sought it — is the “liberty” side of the equation: an Ontarian in British Columbia can do anything he or she might legally do at home without fear of a “different” criminal law.81 The federal Criminal Code provides a baseline for criminality across the country — it does not guarantee that you will be punished for transgressions anywhere in the country, but, if it is in the national Code, you could be punished for it any- where in the country. Moreover, this is a concern to which concurrent prosecutorial authority provides a ready answer: if the disparity between provinces becomes a pressing matter of public concern, the federal gov- ernment can initiate its own prosecutions and provide a more uniform application of the law. The problem of provincial non-enforcement may be less of a division of powers (federalism) concern than a concern about the separation of powers (institutions). Implicit in Scott’s deferential approach is a worry
about the power of public authorities to “dispense” with the law when 2017 CanLIIDocs 118 they deem it convenient. The so-called “dispensing power” has long been considered an unconstitutional deviation from the rule of law. As one Canadian judge suggests, the power belongs to a “dark chapter in English legal and constitutional history,” where “the Crown suspended the oper- ation of a duly enacted law of Parliament, and such suspension could be for an indefinite period.”82 These powers were sharply curtailed by the 1689 English Bill of Rights and now English law holds “[t]he Crown may not suspend laws or the execution of laws without the consent of Parliament; nor may it dispense with laws, or the execution of laws.”83 The modern Canadian affirmation of the rule against a “dispensing power” is found in R v Catagas, where Manitoba Court of Appeal Justice Freedman ruled that a policy of not applying a federal environmental law (the Migratory Birds Convention Act) to Indigenous peoples was impermis- sible. Despite being for a “benevolent . . . purpose,” the “purported dis- pensing power by executive action in favour of a particular group . . . does not exist.”84 According to Freedman, this does not “curtail or affect the matter of prosecutorial discretion,” which is “exercised in relation to a specific case.”85 The case-by-case approach is a “far different thing from
81 Such uniformity is significantly undermined by the rise of “quasi-criminal” provincial offences, as I discuss in Baker, “Temptation”,supra note 30 at 284–289. 82 R v Catagas, 81 DLR (3d) 396, [1978] 1 WWR 282 at 282–283 (Man CA). 83 Ibid at 283, citing 7 Halsbury (3d) para 486. 84 Ibid at 287. 85 Ibid. The Provincial Power to (Not) Prosecute Criminal Code Offences 443 the granting of a blanket dispensation in favour of a particular group or race,” and, while “[t]oday the dispensing power may be exercised in favour of Indians. Tomorrow it may be exercised in favour of Protestants, and the next day in favour of Jews.”86 Does the rejection of a dispensing power in Catagas suggest that a provincial non-enforcement policy is always impermissible? A distinction must be made between a class of citizens declared immune to the law (the “blanket dispensation” on the basis of race or group) and a decision to not prosecute a given offence. The former raises questions of equality and dis- crimination that the latter does not. In fact, the latter is necessary unless one would like to see every offence, including blasphemous libel and the prohibition against crime comics, aggressively pursued. Moreover, while the norm against a dispensing power is rooted in a strong understanding of the separation of executive from legislative power, its usefulness for a fed-
eral division of power is less clear. For unitary states (or where the enact- 2017 CanLIIDocs 118 ment and enforcement are at a single level of government87), the executive undermining the will of the legislature reverses the priority of the law- maker over the law-implementer. With a federal division, the question is whether the provincial executive can check the federal legislature. Here, the modern concurrency of prosecutorial power has a salutary effect: if the federal government objects to the provincial “dispensing,” it has the easy and available remedy of federal prosecutorial enforcement. The concerns about a dispensing power in the federal context are, at best, overdrawn. The third, and perhaps most powerful, objection to provincial non- enforcement is that it may allow for “politics” to interfere with prosecu- torial decisions. Canadian history is replete with examples of political interference in criminal procedures and administration88 and we should remain cautious about any mix of politics and justice. With respect to prosecutorial decision-making, English jurisdictions — including Canada — have adopted the Shawcross doctrine.89 For the late Ontario Court of
86 Ibid. 87 See Carter, supra note 9 at 165 (for this reason, Public Safety Minister Stockwell Day’s “amnesty” for gun registry offences is more problematic than provincial intransigence to the federal scheme). 88 Especially, but not limited to, controversies governing police action and protests (from labour protests in the 1920s to today’s Indigenous peoples (Dudley George, Caledonia, etc.) and eco- nomic (G-20, APEC) protests). 89 Lori Sterling & Heather Mackay, “Constitutional Recognition of the Role of the Attorney General in Criminal Prosecutions: Krieger v Law Society of Alberta” (2003) 20 SCLR (2d) 169 at 175; Stenning, supra note 16. 444 Revue de droit d’Ottawa • 48:2 | Ottawa Law Review • 48:2 Appeal Justice Marc Rosenberg, this now-accepted doctrine answers the question of provincial non-enforcement; a provincial government cannot decide not to enforce “controversial federal legislation” because it would be a “lapse” (usually “the result of ignorance rather than intentional defi- ance”) in the prevailing understanding that criminal prosecutions must be independent from politics.90 To be sure, the Shawcross doctrine does preclude nakedly partisan considerations from consideration, but to avoid all political considerations is an over-reading. In his 1951 address, Lord Shawcross (then Attorney General of England), stated that the “duty of an Attorney General, in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution . . . would have upon public morale and order, and with any other consideration affecting public policy.”91 The “eventual deci- sion” belongs to the Attorney General, “who has to be the sole judge of 92 those considerations” in the broad sense. 2017 CanLIIDocs 118 The Shawcross doctrine calls for a two-stage process for the initiation and continuance of a prosecution. First, the Attorney General must assess whether there is a substantial likelihood for conviction on the basis of the evidence — if there is no possibility of success, the prosecution must be abandoned, even if prosecuting would advance some political or partisan interest. This step ensures no one is subjected to a prosecution for purely political reasons. At the next stage, the Attorney General must consider whether the prosecution is in the public interest. If it is not, it must also be abandoned even if the evidence of a violation is strong. It is making this assessment — but not the first — that the Attorney General may consult with other members of the Cabinet (“he would in some cases be a fool if he did not”), since they can offer insight into what might best serve the public.93 Two things are immediately obvious about the doctrine: (1) it expressly recognizes the legitimacy of some political input — in the “broadest sense” — into the con- duct of prosecutions; and (2) its rules are directed against prosecutions, stopping them when there is little prospect of a successful conviction or where the prosecution would not be in the public interest. Here, a provin- cial assessment that the federal criminal law was bad public policy could
90 Rosenberg, supra note 74. 91 UK, HC, Parliamentary Debates, 5th ser, vol 483, cols 679–90 (29 January 1951) (Sir Hartley Shawcross) [UK, Debates], cited in J Ll J Edwards, The Law Officers of the Crown (London: Sweet & Maxwell, 1964) at 223 [emphasis added]. 92 Edwards, supra note 91 at 223. 93 UK, Debates, supra note 91 at 319. The Provincial Power to (Not) Prosecute Criminal Code Offences 445 be accommodated. It would merely allow for a “second-look” evaluation of the policy and, given that we are dealing with the awesome power to pros- ecute an individual, a system of checks-and-balances where both levels of government would need to be in some agreement before proceeding with a prosecution of an offence seems entirely in keeping with the criminal justice norm of favouring the accused. It would enhance rather than under- mine the Shawcross doctrine in Canada and better reflect the original fed- eralism bargain over criminal justice powers. By adopting and communicating a policy of “non-enforcement,” the province could contribute to transparency and accountability in the criminal justice system. Even in jurisdictions where the prosecutorial authority has been transferred to an independent Director of Public Pros- ecutions (Nova Scotia, British Columbia, and federally), there remains a vehicle to communicate matters of “policy” from the Government to
the otherwise-independent actors. This can take the form of a directive 2017 CanLIIDocs 118 in the provincial Gazette or an Order-in-Council (both ensuring that the communication is public and on the record). In other jurisdictions, like Ontario, that continue to have the Minister of Justice/Attorney General oversee prosecutions directly, the Minister is expected to issue pro- cedural policy guidelines to be followed by the “line prosecutors” (the Crown attorneys that actually prosecute accused persons in court). In what is perhaps the most famous instance of provincial non-enforcement of a criminal offence, Attorney General of Quebec Marc-André Bedard announced, both to his Department and the public, that the Criminal Code’s abortion provisions would no longer be enforced in Quebec. After several unsuccessful criminal prosecutions of Morgentaler (prior to his 1989 Charter victory),94 the Quebec government decided that further pros- ecutions of “duly qualified doctors” could not be considered in the public interest. Then-Attorney General of Canada Ron Basford conceded that Quebec’s choice was “a fair and just decision” that is “properly a decision for the provincial authorities.”95 An even better mechanism for communicating provincial prosecutor- ial policy is the Crown Manual.96 This document — or usually a series of
94 Morgentaler, supra note 8. 95 Dave Thomas, “Quebec drops case against Morgentaler”, Montreal Gazette (11 December 1976), online:
some forms of prostitution), so Crown Manuals offer the province the 2017 CanLIIDocs 118 opportunity to identify circumstances where non-prosecution is consistent with their view of what the public interest requires. The British Columbia Crown Manual is particularly instructive in this regard. In response to the Supreme Court’s affirmations of the assisted suicide provisions of the Criminal Code in Rodriguez (1993),99 British Col- umbia altered their instructions to Crown prosecutors via Policy EUT 1 (“Euthanasia and Assisted Suicide”).100 Recognizing the “complex nature of the legal issues and the evolution of palliative care,” it expressly required a “case-by-case basis” for charges but gave a number of factors that made prosecution of a qualified medical practitioner who ended the life of a terminally ill person with their consent very unlikely.101 To those factors, which the guidelines suggested should have a bearing on whether there was a substantial likelihood of conviction, the guidelines also told prosecutors that, in considering whether the prosecution was in the pub- lic interest, they should consider “society’s interest in the protection of vulnerable persons” and “society’s interest in the protecting the sanctity of human life, recognizing this does not require life to be preserved at
97 R v Beaudry, 2007 SCC 5 at para 45, [2007] 1 SCR 190, cited in Anderson, supra note 77 at para 56 (citing the rules regarding police manuals). 98 Quebec, Assemblée Nationale du Québec, Report of the Select Committee on Dying with Dignity (Quebec: Bibliothèque et Archives nationales du Québec, March 2012) at 89–90. 99 Rodriguez v British Columbia (AG), [1993] 3 SCR 519, 107 DLR (4th) 342. 100 British Columbia, Ministry of the Attorney General, “Crown Counsel Policy Manual: Eutha- nasia and Assisted Suicide”, Policy Code EUT 1, now cancelled (Victoria: 15 March 2004). 101 Ibid at 1. The Provincial Power to (Not) Prosecute Criminal Code Offences 447 all costs.”102 Notably, when Sue Rodriguez did end her life in 1994, the doctor who assisted was not prosecuted. In many ways, Policy EUT 1, last amended in 2004, bears a very strong resemblance to the decision of the Supreme Court in Carter,103 over ten years later. When a provincial judge decided that a municipal by-law prohibiting women from going topless in parks or swimming pools infringed upon the federal government’s power to make criminal law,104 the British Columbia Government assuaged concerns by again using the Crown Manual. Prosecu- tions would be in the public interest if they included elements that are found nowhere in the Code (“whether there was an element of aggressive exhibition- ism in the act of nudity” and “whether the act of nudity occurred . . . in an area commonly known to be frequented by nude sunbathers”).105 By contextual- izing prosecutorial discretion, the British Columbia Government effectively amended the Criminal Code by adding its own policy spin to the framework
established by the federal law on obscenity. Crown Manuals offer a useful 2017 CanLIIDocs 118 ‘middle ground’ alternative to individualized discretion and the barebones generalities of the Code. It is hard not to appreciate the transparency and accountability that would come from provincial policies regarding enforce- ment rather than unwritten norms or potentially idiosyncratic decisions made by line prosecutors. Significantly, the guidance comes from the provin- cial level of government and thus restores some of the prosecutorial power that was lost (or at least muddled) by the Court’s CN and Wetmore decisions.
CONCLUSION In sum, there are no applicable legal or constitutional principles that pre- vent a provincial government from mitigating the effect of federal criminal law through its prosecutorial power. This provides an answer to the Wynne Government in the prostitution context. There is a strong case that the Federal Government’s new Criminal Code amendments are constitutional, in the sense that they respond to some of the Court’s Charter concerns in Bedford or at least the legislation alters the legal landscape of prostitution so significantly that it warrants a new round of judicial review. Even so, if the Premier of Ontario has “grave concerns” that the new legislation
102 Ibid at 4. 103 Carter, supra note 8. 104 Maple Ridge (District) v Meyer, (2000) BCSC 902, 77 BCLR (3d) 169. 105 British Columbia, Ministry of the Attorney General, “Crown Counsel Policy Manual: Nudity”, Policy Code NUD 1 (Victoria: 15 September 2004) at 1. 448 Revue de droit d’Ottawa • 48:2 | Ottawa Law Review • 48:2 continues to imperil sex workers, she need not yield to the bottom floor of Charter compliance. Using the appropriately balanced constitutional criminal justice powers, the Government of Ontario can help the Attor- ney General assess which, if any, prosecutions are in the public interest. The Ontario Government could, for example, modify their Crown Policy Manual to identify factors that would indicate whether a prosecution is in the public interest (and it could overemphasize the importance of pro- tecting vulnerable citizens such that it essentially stacks the deck in favour of non-prosecution). If the Federal Government finds this approach lack- ing and, if they are concerned with the uniform application of their law nationwide, they have an obvious tool to remedy the deficiency: the Attor- ney General of Canada may institute her own prosecutions.106 A provincial power of non- or under-enforcement returns an appropri- ate check to the sub-units of Canadian federalism. There are sound rea-
sons to welcome increased provincial input into criminal justice policy. 2017 CanLIIDocs 118 Provinces pay a disproportionate 75 percent of the costs of criminal jus- tice services,107 and thus the federal government has the perverse incen- tive to solve problems by adding provisions to the Criminal Code and only pay for their policies at the rate of 25 cents on the dollar. Since, Parlia- ment has chosen to leave the prosecution of Criminal Code offences to the provinces, it is inappropriate to treat an independent government, sovereign in its own sphere, as mere agents of federal will and require it to execute legislation that they oppose (to which we might add that opponents are often poor implementers of policy). Finally, the promise of checks-and-balances should not be abandoned and the hope of moderate governance through the division of enactment a nd enforcement should be maintained. It is important, however, that this power be clearly under- stood and recognized, lest provincial authorities seize upon the muddy doctrines of constitutional authority to deny their accountability for the quality of Canadian criminal justice.
106 Even under a rigorous checks-and-balances approach, such a federal power of prosecu- tion might be permissible as incidental to the federal power to legislate. Parliament may “employ its own executive officers for the purpose of carrying out legislation which is within its own constitutional authority, as it does regularly in the case of revenue officials and other matters which need not be enumerated” (Proprietary Articles Trade Association v Canada (AG), [1931] AC 310 at 327, [1931] 2 DLR 1, cited in Prince Edward Island Potato Mar- keting Board v HB Willis Inc, [1952] 2 SCR 392 at 396, [1952] 4 DLR 146. 107 Canada, Report of the Auditor General of Canada to the House of Commons, Chapter 4: The Criminal Justice System: Significant Challenges (Ottawa: April 2002) at 3.