The temptation of provincial criminal law.

Baker, Dennis

On March 27, 2003, York Regional Police stopped Robin Chatterjee for failing to have a front license plate. Upon discovering that Chatterjee was in breach of a recognizance order, the police searched his vehicle and found $29,020 in cash, an exhaust fan, a light ballast and a light socket. All of the items were perfectly legal to carry but suggested involvement in marijuana production and trafficking. Although there was not nearly enough evidence to sustain a drug charge--no drugs were found, despite the faint whiff of marijuana smelled by the police--the Province of Ontario seized Chatterjee's money and equipment. They were able to do so because they could prove that Chatterjee was "more likely than not" engaged in criminal activity and thus subject to Ontario's Civil Remedies Act (Chatterjee 2009: para 23). Six years later, on May 27, 2009, Renada Keshane received unwanted attention from an overly aggressive suitor outside an Edmonton nightclub. After rebuffing his advances, the suitor slapped Keshane, and she answered with a kick. The police approached and witnessed the two exchanging punches for twenty seconds. The officers, deciding that the fracas did not warrant a criminal charge of assault, chose to fine Keshane (but not the other party) $500, pursuant to a municipal by-law prohibiting "public fighting."

Both Ontario's Civil Remedies Act and Edmonton's public fighting by-law are intended to allow law enforcement officials to address offences more expeditiously than if federal criminal charges were laid. The Edmonton by-law, for example, was explicitly designed to allow police to deal with fights "on a more efficient basis" because a "bylaw charge requires the issuance of an offence ticket," whereas a "criminal charge involves an arrest, the provision to the accused of their right to counsel and mandatory report preparation" (Keshane 2010, Groves J.: para 36). These laws are part of a broader and growing phenomenon of provincial laws or municipal by-laws that supply criminal justice administrators (police and prosecutors) with an option to impose penalties other than those provided for the same conduct by the federal Criminal Code. In this paper, I characterize such enactments, including municipal by-laws, as "provincial criminal laws." (1) While the alternative charges and penalties provided by these laws have some attractions--for example, they offer a seemingly proportionate response to relatively minor infractions--they raise significant questions about the federal division of criminal justice powers and may erode civil liberties in favour of administrative expediency.

The article pursues this argument in four stages. First, it documents the Supreme Court of Canada's (uneven and uncertain) shift from an approach to criminal justice issues that maintained discernible distinctions between the relevant federal and provincial powers to one that increasingly blurs the lines in favour of intergovernmental collaboration. Second, it reviews a number of provincial laws and municipal by-laws that show just how fuzzy the lines between non-criminal and criminal jurisdiction have become. Although some of these laws have attracted isolated commentary questioning their criminal law elements (Corbett 2001; Schneiderman 2002; Esmonde 2002; Gallant 2006), no attempt has been made to link them together in the context of the general relationship between criminal law and modern Canadian federalism. Third, the article spells out the problems with the "provincial criminal law" generated by the collaborative approach. Finally, the paper's concluding section proposes an appropriate judicial role in patrolling more clearly defined boundaries of criminal justice federalism.

Criminal justice federalism

The federalism issues prompted by Ontario's Civil Remedies Act and Edmonton's public fighting by-law arise because section 91(27) of the British North America Act, 1867 gives the Parliament of Canada the "exclusive Legislative Authority" over "the Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters" (emphasis added). What counts as legitimate federal "criminal law" has, of course, long been a controversial question, in part because of the federal power's potential to affect provincial jurisdiction. For example, the traditional judicial definition of criminal legislation --a law that contains "prohibitions backed by penalties," directed at "some evil or injurious or undesirable effect" and intended to achieve a legitimate "criminal" purpose (which includes, in Justice Rand's oft-cited phrasing, "public peace, order, security, health, morality") (Margarine Reference 1949: 50)--is potentially limitless (Manning 2002; Assisted Human Reproduction Reference 2010: paras 43, 240). On its face, this definition raises questions about the extent to which Ottawa can use the prohibitory form of criminal legislation to enter such otherwise provincial areas of jurisdiction as intra-provincial commerce, health, or local environments. The courts have sometimes given very wide scope to federal criminal legislation (Board of Commerce, 1922; Hydro-Quebec, 1997), but have also protected provincial jurisdiction by limiting the permissible reach of federal criminal prohibitions (Margarine Reference, 1949; Assisted Human Reproduction Reference, 2010). The latter cases make it clear that the permissible scope of federal criminal-law jurisdiction is defined by some kind of criminal-law substance (especially public order and safety) and not just by the form of a punishable offence.

One reason that a punishable offence cannot be the defining feature of federal criminal law under section 91(27) is that the provinces can also legislate such offences under section 92(15). Under this section, the provinces "may exclusively" enact laws imposing "Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in" section 92 of the British North America Act, 1867. Both Ottawa and the provinces, in other words, can impose punishments, including imprisonment. But just as Ottawa's punishments can only be imposed for plausibly criminal law purposes, so provincial punishments cannot be imposed for such criminal law purposes. Criminal law is exclusively federal; provincial punishments are limited to enforcing the kinds of non-criminal law purposes specified by the other provisions of section 92.

Do the kinds of provincial and municipal laws at issue in Chatterjee and Keshane cross the jurisdictional line? Former Chief Justice Bora Laskin would have thought so, certainly with respect to the Edmonton by-law used to convict Keshane. In Westendorp (1983), Laskin, speaking for a unanimous Supreme Court, invalidated a Calgary by-law that attempted to control the "public nuisance" of street prostitution. Maintaining that the by-law allowed the municipality "to usurp exclusive federal legislative power" (1983: para 21), Laskin concluded with an expression of disbelief:

If a province or municipality may translate a direct attack on prostitution into street control through reliance on public nuisance, it may do the same with respect to trafficking in drugs. And, may it not, on the same view, seek to punish assaults that take place on city streets as an aspect of street control! (1983: para 21, emphasis added)

Laskin's exaggerated hypothetical (complete with a rare judicial exclamation mark) is, of course, precisely the Edmonton by-law at issue in Keshane.

Ten years later (1993), Justice Sopinka, also writing for a unanimous Supreme Court, expressed the same viewpoint. "The guiding principle," he wrote, "is that the province may not invade the criminal field by attempting to stiffen, supplement or replace the criminal law ... or to fill perceived defects or gaps therein" (Morgentaler 1993: para 55). Sopinka made these comments in a case that struck down a provincial "invasion of the field of criminal law" (Morgentaler 1993: para 85). The case arose out of Dr. Henry Morgentaler's initiative to follow up his famous 1988 Supreme Court victory, which invalidated the federal Criminal Code provisions regarding abortion, by opening new abortion clinics in Nova Scotia. The province responded with the Nova Scotia Medical Services Act, R.S.N.S. 1989, c.281, which prohibited the performance of abortions outside of a hospital. Given that health care is unquestionably a provincial jurisdictional prerogative, one might have thought the provincial case strong, as it simply requires a medical procedure to be undertaken solely in a hospital setting. However, while Nova Scotia's law did indeed have a health-care "aspect," the Supreme Court considered its true "pith and substance" to be the "recriminalizing" of federal prohibitions invalidated four years earlier. Not only did the Medical Services Act prohibit "traditionally criminal conduct" (Morgentaler 1993: para 49), but excerpts from Hansard demonstrated that "all parties in the House understood the central feature of the proposed law to be the prohibition of Dr. Morgentaler's proposed clinic on the basis of a common and almost unanimous opposition to abortion per se" (Morgentaler 1993: para 32). Relying on Westendorp (and also on Scowby 1986), Justice Sopinka concluded that Nova Scotia's legislation was invalid as an "indivisible attempt by the province to legislate in the area of criminal law" (Morgentaler 1993: para 24).

This paper defends the Laskin-Sopinka position against the growing trend of provinces (and municipalities, acting under provincial authority) to "invade the criminal field," in effect to enact "provincial criminal law," but without the liberty-enhancing procedural protections required of official (that is, federal) criminal law. Since Sopinka's unanimous "judgment of the Court" struck down Nova Scotia's law in 1993, the courts have upheld numerous provincial laws and municipal by-laws that "invade the criminal field" as much or more than the Nova Scotia Medical Services Act, including the laws at issue in Chatterjee and Keshane. This more relaxed approach to provincial criminal law reflects a judicial preference for "collaborative federalism" over "constitutional federalism," one that favours intergovernmental accommodation over assertions of jurisdiction (Simeon and Robinson 2004: 115-122).

The collaborative approach favours shared jurisdiction or practical concurrency, allowing both orders of government to contribute to policy areas having both federal and provincial "aspects" (Hodge 1883; General Motors 1989: 670; Leclair 2003: 417-8; Oliver 2011: 173; Lederman 1963). Although laws with such "double aspects" may look alike, they will both be constitutionally valid if the federal law is directed in "pith and substance" to a federal aspect (for example, criminal law) and the provincial law is directed in pith and substance to a provincial aspect (for example, health or highway safety). (2) Only if the laws directly clash, in the sense that one must disobey one law in order to obey the other, will it be necessary for one of them (typically the provincial version) to give way under the principle of paramountcy.

Collaborative, double-aspect jurisprudence has a long history in Canada (dating back at least to Hodge v. The Queen 1883) and certainly pre-dates the judgments in Westendorp, Scowby, and Morgentaler. Indeed, these three decisions are departures from the "dominant tide" of modern federalism jurisprudence in Canada (OPSEU (1987): 17; Canadian Western Bank (2007): para 36). Nevertheless, they are justified and necessary departures. While the jurisprudence of "collaborative" federalism makes good sense in many policy areas, it is troubling in the criminal justice context, where we should prefer the "constitutional federalism" espoused by Laskin and Sopinka. Unfortunately, courts have recently been facilitating the increased scope of "provincial criminal law."

Provincial criminal laws

Do Ontario's Civil Remedies Act and Edmonton's public fighting by-law fit Sopinka's category of illegitimate attempts to "supplement or replace the criminal law ... or ... fill perceived defects or gaps therein"? Allison Thornton, counsel for the Canadian Civil Liberties Union, described Ontario's law as enacting "criminal law through the back door" (Todd 2009: 4). As Laskin's hypothetical in Westendorp makes clear, the same can be said of the Edmonton by-law used to charge Keshane. Nor are Chatterjee and Keshane the only examples of this phenomenon. Chatterjee concerned one of seven provincial laws and Keshane one of seven by-laws since Justice Sopinka's 1993 Morgentaler judgment that have been plausibly challenged as intrusions on federal criminal-law jurisdiction. (3) With one exception, all were upheld by the highest court that considered them. Table 1 briefly sets out these 14 laws.

As the first column of Table 1 shows, all seven of the provincial laws were upheld. Justice Sopinka's 1993 Morgentaler judgment represents the last time a provincial law was judicially invalidated for "invad[ing] the criminal field." With one exception (Skinnydipper), the municipal by-laws in the second column of Table 1 have withstood challenges just as well as their provincial law counterparts.

Nor does this list of fourteen provincial laws and by-laws exhaust the category of laws that might qualify as "criminal law through the back door." Each of these laws is representative of a number of laws and by-laws across the country. While Chatterjee only concerns the Ontario Civil Remedies Act, similar acts have been passed in other provincial jurisdictions (BC, Alberta, Manitoba and Quebec), a process accelerated by the Supreme Court's endorsement of the Ontario law. The same is true of Saskatchewan's Profits of Criminal Notoriety Act, versions of which exist in four other provinces (Manitoba, Alberta, Ontario and Nova Scotia). As for by-laws, Oshawa's pawn-shop reporting requirement has led to kindred municipal regulations in many other cities, and the validation of Ottawa's by-law in Adult Entertainment effectively answered dozens of similar challenges in other Ontario municipalities (and perhaps beyond). Anecdotal evidence also suggests that municipalities across Canada, emboldened by the Keshane decision, are considering similar public fighting by-laws (Baker & Mosonyi 2012). Given the near-absolute win rate for the provinces and municipalities when such laws are challenged, there is good reason to believe that the phenomenon of provincial criminal law will increase.

The courts have upheld such laws, moreover, despite ample evidence that the governments enacting them conceived of them as criminal justice initiatives. Recall that in Morgentaler 1993, Justice Sopinka determined that Nova Scotia's Medical Services Act was in pith and substance an invasion of federal criminal jurisdiction in part because the evidence showed that its enactors saw it as a criminal prohibition directed at "traditionally criminal conduct," and intended it to replace the federal prohibition struck down in Morgentaler 1988. Similar evidence failed to persuade the courts in any of the post-1993 cases considered here.

Take the Safe Streets Act, 1999, for example. Restrictions on begging have been part of the Criminal Code since its enactment in 1892 (easily "traditionally criminal conduct") and, like abortion, begging was substantially decriminalized (in 1972) only to be re-criminalized by the province (Corbett 2001). Significantly, the policy was recommended by Ontario's "Crime Control Commission" and Premier Harris explicitly called the behaviour criminal: "We're going to call them what they are --they're crimes" (Boyle 1998: A9; Birdsell and Rosenthal 2005: 9-10). Harris suggested the Act was a response to "the concerns of police officers in urban communities" and would allow them to "crack down on aggressive panhandlers and on squeegee people who harass and intimidate motorists" (Ontario Hansard, 1st Session, 37th Parliament, 7 Dec. 1999: 44). That the law is saved by a prominent road safety "aspect" was belied by its application to parked cars and by the province's failure to offer any evidence that the prohibited behaviour threatened traffic safety.

Consider the Manitoba Stalking Prevention Act, where the Minister of Justice recognizes "that this government cannot enact criminal penalties for domestic violence or stalking, those being matters within the exclusive jurisdiction of the federal government," but continues by noting that "this bill ... will provide victims with the ability to seek a wide range of meaningful civil remedies ... that will supplement the criminal penalties and strengthen the remedies available to victims of domestic violence and stalking" (Manitoba Hansard, May 13, 1998: 2978). "Supplementing] ... the criminal law" was, of course, one of Sopinka's illegitimate ways for provinces to "invade the criminal field."

And what about the Civil Remedies Act, where the Chief of Police testified that he supported the Act because it "would enable us to effectively disrupt and dismantle the entrenched and sophisticated organized crime enterprises" in contrast to "measures taken at the federal level ... [that] have been, mostly, ineffectual" (Ontario Standing Committee on Justice and Social Policy, Bill 155, February 20th, 2001: 1450)? Was not the attempt to "fill perceived defects or gaps" in the federal criminal law another of Sopinka's unconstitutional invasions?

Similarly, in defending Edmonton's public fighting by-law, the City Solicitor suggested "[i]t is complementary to the criminal law, not part of the criminal law" (Blais 2010), obviously paying no heed to Justice Sopinka's injunction against "complementing" (a synonym for Sopinka's "supplementing] ") the criminal law. In the same vein, the minutes of the Edmonton Council, which observe that one of the chief benefits of the law is that it will "close the gap and allow the police to issue a violation ticket in situations where the Criminal Code would not apply" (Keshane, 2010: para 37), contravene Sopinka's directive against filling "perceived defects or gaps" in the criminal law.

Instead of using such evidence to strike down provincial "attempt[s] to legislate criminal law," however, the courts in all but one of the fourteen post-1993 cases in Table 1 found the laws valid because they were related, in pith and substance, to a legitimate provincial aspect. The result is a worrisome growth in provincial criminal law.

The trouble with provincial criminal law

The growing phenomenon of provincial "criminal law through the back door" is problematic for a host of reasons. Most fundamentally, it is incompatible with the functional division of federal and provincial responsibilities over criminal justice established by the Constitution Act, 1867. While this division gives Ottawa power to enact criminal law and procedure, it gives the provinces considerable power to administer the criminal justice system. Section 92(6) gives provinces power over the "Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province." Such provincial institutions can, of course, house those imprisoned for non-criminal offences by virtue of section 92(15), but they mostly hold inmates convicted of federal criminal offences (where the sentence is less than two years). Recall also that under section 91(27) Ottawa cannot constitute "Courts of Criminal Jurisdiction." These courts fall under Section 92(14) of the Constitution Act, 1867, which gives the provinces power over "The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction" (emphasis added). Moreover, "The Administration of Justice in the province" not only "includes" the establishment of criminal courts, but has traditionally grounded the power of provinces in prosecuting federally-enacted Criminal Code offences (compare with Carter 2007). At the same time, the provincial prosecution of crime in provincially constituted courts remains subject to the federal power to define not only the substance of crime but also criminal justice procedures. Clearly, the Constitution Act, 1867 establishes a finely balanced division between enacting criminal offences and procedure (federal) and administering criminal justice (provincial).

Notably, criminal justice is the only subject matter in ss. 91 and 92 that is divided according to function in this way (Bakvis, Baier, and Brown 2009:11). While such "horizontal or administrative federalism" is common in some federal systems (for example, Germany), it is otherwise alien to the Canadian approach. Given this unique functionalism, the doctrines of federalism that apply to all other powers must be applied with caution to the criminal justice context. In particular, double-aspect jurisprudence, which allows the different orders of government to overlap in enacting very similar laws seems particularly ill suited to a functional division (in which one order administers what the other enacts). The logic of the functional division, and the particular balance of powers it establishes, is undermined not only if Ottawa enacts substantively provincial legislation using the form of criminal prohibition under s. 91(27) but also--and centrally for purposes of this paper--if provinces enact "criminal law through the back door." This logic strongly supports Justice Sopinka's 1993 insistence that the provincial offences and punishments enacted under section 92(15) cannot "supplement or replace the criminal law ... or ... fill perceived defects or gaps therein."

We should also worry about provincial and municipal laws that impose supplementary penalties not only on those who have been convicted of a Criminal Code offence, but also on those who might be guilty of the offence. For example, because Saskatchewan's Profits of Criminal Notoriety Act extends to those "charged with a designated crime," not just to those "convicted of" one, it creates the potential for an innocent person to be unable to profit from a retelling of a failed prosecution or as the victim of police misconduct. Similarly, Ontario's Civil Remedies Act allows the province to impose civil penalties on people "likely to have committed" or "suspected of" or "investigated" for Criminal Code offences. In Chatterjee, the Court saw the triggering mechanism for the property deprivation, that one must have likely committed a criminal offence, as only peripheral to the true provincial "pith and substance." It is difficult, of course, to conceive of the law without the triggering element of criminal behavior, which it is surely the entire reason the property deprivation is in any way justifiable. Nevertheless, the law makes it possible to confiscate the property of those who have not have not faced criminal prosecution and perhaps not committed any crime.

The problem of penalizing possibly innocent individuals is compounded because conviction and punishment under provincial offences is not subject to the well-known procedural strictures of acknowledged criminal law, including the right to counsel and the right to be presumed innocent until proven guilty beyond a reasonable doubt. For example, it was easier to conclude that Chatterjee was "more likely than not" to be engaged in criminal activity under the provincial Civil Remedies Act than it would have been to prove him guilty "beyond a reasonable doubt" under the federal Controlled Drug and Substances Act. Or consider the Manitoba Stalking Prevention Act, where in some cases there may not be enough evidence to get a peace bond for Criminal Code intimidation or harassment, but a more easily obtained provincial protection order might be available and, since it is criminally enforced by virtue of the Criminal Code provisions regarding the breach of a court order (s.127), it may be just as effective as the peace bond. Similarly, it was possible under the Edmonton by-law to issue a simple ticket for "public fighting" to Keshane, whereas pursuing the criminal charge of assault would have been procedurally more onerous.

It is true, of course, that the Charter applies to provincial legislation as rigorously as it does to federal law: the legal rights of s.11 (which are engaged when "one is charged with an offence") are "available to persons prosecuted by the state for public offences involving punitive sanctions, i.e., criminal, quasi-criminal and regulatory offences, either federally or provincially enacted" (Wigglesworth: para 25). However, the broad applicability of Charter protection has been qualified by the decision in R. v. Wholesale Travel Group (1991), where Justice Cory held that "a Charter right may have different scope and implications in a regulatory context than in a truly criminal one and that constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences." The current state of the law suggests that, by portraying their laws as something less than "truly criminal," provinces may be able to avoid the most robust forms of Charter protection.

Moreover, the shift in focus from federal criminal law (where rights, due process and liberty are usually at the forefront of the debates) to provincial offences may elevate justifications related to administrative expediency. In an oft-cited article critical of the Supreme Court's expansive interpretation of federal powers (including the criminal law power), Jean Leclair argues "[t]he dominant understanding" of federalism by Canadian courts privileges "efficiency" at the expense of other values (2003: 412). "Put bluntly," Leclair writes, "it is a simple inquiry into which level of government can best get the job done" (2003: 412). Applied to criminal law, one might wonder what exactly is the "job" and who is served by "efficiency"? One troubling answer is that efficiency serves primarily the convenience of criminal justice administrators. Criminal justice concurrency can exacerbate the "pathologies of criminal law" that criminal law professor William Stuntz warns against: forum shopping by law enforcement actors, reduced protections for civil liberties and ever-broader criminal liability (2001). Duplicative provincial criminal laws provide law enforcement officers with a greater range of discretionary choices in addressing anti-social behaviour. Some citizens will be charged with assault, while others are ticketed for "public fighting" or "aggressive solicitation." Some individuals will be charged under provincial or municipal offences when it is unlikely they would have been charged criminally, creating a potentially net-widening effect (Lab et al. 2011: 155-6). These consequences may not always be inherently problematic--indeed, they may ultimately help ensure the state response is appropriate to the level of harm and disruption--but the establishment of such "options" must be done with care to ensure essential protections and qualifications are not removed without consideration.

In testimony before the Standing Committee on Justice and Social Policy, Niagara Police Chief Gary Nicholls explicitly praised the Civil Remedies Act for its administrative expediency, noting that "the level of proof is reduced ... In addition, the rules governing admissibility of evidence in civil matters are reduced, resulting in a more level playing field for police and prosecutors" (Ontario, Bill 155, February 21, 2001: 1050). Not only is the overall burden of proof reduced, evidence--perhaps even evidence that would be inadmissible in a criminal trial--can be used to reach the conclusion that the property was the proceeds of crime. One can see why police and prosecutors (and perhaps other criminal justice administrators) might favour the civil option and it may help explain why "no case" drug seizures--where the police legally search a marijuana grow-op and seize the equipment but lay no formal charges--are on the rise (Garis 2009: 3). When asked about the federal property forfeiture provisions in the Criminal Code (which apply only once a conviction has been established), then-Chief of Police Julian Fantino said "[w]e do use it ... But that's a criminal process and there are a lot of complications there ... it's labour-intensive, and there are all kinds of issues of liability and being able to effectively and quickly seize the assets before actual due process is concluded" (Ontario Standing Committee on Justice and Social Policy, Bill 155, February 20th, 2001: 1510). If Fantino is correct, and the federal system is too burdensome to perform the task, then the federal system should be directly reformed, not "supplemented" (or perhaps 'short-circuited') by a provincial system that provides administrators with the same result for less effort.

Another difficulty with provincial criminal laws is their potential to circumvent the traditional criminal law restraints on investigations. Consider the administrative maneuvers involved in Chatham's "excessive fortifications" by-law: targeting a specific motorcycle clubhouse, the City passes a regulation prohibiting the fortifications visible from outside the property. This gives the City's building inspector "due cause" for a search warrant, allowing him to enter the premises and report anything he sees (regarding other offences) to the police, who can use that information as probable cause to obtain a new, broader search warrant. (6) Such investigative use of provincial laws is not unknown; in Brown (1998), the Ontario Court of Appeal accepted the Durham police's systematic use of a provincial Highway Traffic Act provision to establish stops to check "mechanical fitness" (s.216(1)) of motorcycles in order to obtain intelligence about the Paradise Riders Motorcycle Club (if the bikers had been pulled over without the "mechanical fitness" pretense, it would have constituted an arbitrary detention). Similarly, Oshawa's by-law recruits the active assistance of pawn shop operators in criminal investigations by requiring them to report all transactions directly to the police.

The actual punishments imposed by provincial criminal laws also raise difficulties. Because such laws must formally deny that they are true criminal laws, they tend to rely on fines and property seizure rather than imprisonment (7)--indeed, none of the laws discussed above carry a sentence of imprisonment upon first conviction. This does not always make them less punitive than their Criminal Code counterparts, however. Even modest fines can quickly escalate and the failure to pay them can lead to serious legal consequences. With respect to property seizures, it should be recognized that such penalties can be life altering--think of the state seizure of a house suspected of being used (perhaps only in part) for the production of marijuana. Some property-deprivation penalties could be even more punitive than the correlative criminal law penalty; one might prefer, for example, a federal drug diversion program to the loss of a home. Moreover, laws like Manitoba's Stalking Prevention law may be explicitly formulated to ensure that the breach of a civil order can be enforced by s.127 of Criminal Code ("disobeying order of court"), essentially transforming a provincial civil remedy into a federal criminal offence backed by criminal penalties.

Finally, to the extent that provinces can "supplement or replace the criminal law ... or ... fill perceived defects or gaps therein," they may be able to criminalize what the federal government has chosen not to criminalize. This is most problematic when provinces recriminalize what has explicitly been decriminalized as a matter of federal criminal law. This was precisely the situation in the 1993 case that prompted Justice Sopinka's injunction against provincial supplementation or replacement of criminal law. Similarly, the federal decriminalization of "begging" in 1972 has been at least partially overturned by Ontario's Safe Streets Act and municipal by-laws like Vancouver's "obstructive solicitation" regulation. If "decriminalization" is to have any meaning, it must surely prevent some forms of provincial "recriminalization." Similar considerations may count against provincial criminalization of something Ottawa has abstained from prohibiting in the first place. Judge Williamson ruled in Skinnydipper that a municipality could not "extend a definition of something criminal to include circumstances excluded by Parliament" (see Lederman 1963:188 on the "so-called doctrine of abstinence" and its negative implication for provincial law). As we have seen, however, Skinnydipper is a modern anomaly, one that runs against the "dominant tide" of collaborative, "double aspect" federalism.

Resisting the temptation

It is not surprising that the provinces would want to play a role in shaping criminal law. Providing protection against crime is a core function of government and one that citizens naturally expect of all levels of government. The fiscal dimension of criminal justice--where the provinces pay 75% of all criminal justice costs (Canada 2002: 4)--provides an additional incentive. "Each level of government bears a portion of the costs of criminality," Justice Binnie reasons in Chatterjee, "and each level of government therefore has an interest in its suppression" (para 15). Moreover, the functional divide of the criminal justice powers may itself encourage provinces to legislate in the criminal sphere. Federations that routinely divide powers functionally, like Germany, also have strong intra-state mechanisms that allow the sub-units to participate in national law-making. Without such intra-state mechanisms, the Canadian provinces are left administering criminal justice legislation (like the Criminal Code of Canada) whose substance they cannot formally and explicitly control. Absent any intra-state mechanism and given the political pressure to address the always-salient issue of crime, it is not surprising that the provincial governments, formally denied the hammer of substantive criminal law, would search their toolbox for other means of hitting the same nail. Nevertheless, the problems of provincial "criminal law through the back door" recounted in the previous section are too serious to ignore. The temptation of provincial criminal law should be resisted.

Resisting the temptation will be difficult, not least because it runs directly counter to the "dominant tide" of Canadian federalism jurisprudence, which favours federal-provincial collaboration and accommodation in contrast to the (now unfashionable) constitutional theory of "watertight compartments." In the criminal justice context, we need to lean a little more in the direction of watertight compartments. Yet, while calls for a return to a more textual division of powers are periodically heard from political actors (Stephen Harper's "Open Federalism," for example), the Supreme Court appears wedded to more collaborative approaches (see, for example, the Court's decision in Canada (Attorney General) v. PHS Community Services Society (2011) and Reference re Securities Act (2011)) despite the occasional defence of provincial autonomy (Reference re Securities Act (2010)).

The difficulty of resisting and reversing collaborative jurisprudence in the criminal justice sphere is compounded by the fact that the federal government itself sometimes fails to resist it. Indeed, Ottawa is sometimes an active accomplice of provincial criminal law. With respect to Ontario's Civil Remedies Act, for example, the Federal government supported the provincial legislation and even intervened on its behalf in court (Makin 2008). Similarly, a recent discussion paper by the Federal Department of Justice suggests downloading a number of crimes to the provincial level to allow for "the assurance of lower penalties or no time in jail in exchange for reduced protection under the Charter" (Kari 2013). Such federal acquiescence in provincial criminal law minimizes jurisdictional conflict and gives the courts little reason to reconsider the jurisprudence of collaborative federalism.

In the criminal justice context, however, intergovernmental collaboration is better viewed with suspicion than as the welcome comity it brings to other policy areas. Laskin was alive to this possibility when he ruled in Westendorp that the "double aspect" doctrine would have to be narrowly applied in the criminal justice context, lest the provinces and municipalities enact a wide variety of criminal legislation on the basis that it furthered their objective of regulating public spaces. Laskin understood that allowing a vast concurrency in criminal law power radically undermined the federal exclusivity of s. 91(27). The Court has abetted this concurrency by finding provincial objectives such as "maintaining public order," "deter[ring] crime and compensating] victims," and "suppressing conditions calculated to favour the development of crime" to be legitimate provincial justifications for legislation under section 92 (Bedard, 1923: 684; Chatterjee, 2009: para 3; Manning 2002: 316-20). With these objectives considered part of the province's mission, it is not difficult to find a' "double aspect" to most matters of criminal justice policy. It should be more difficult. Simply put, the "modern tide" of "collaborative" federalism jurisprudence in the criminal justice realm risks inducing a multi-level reduction of liberty while simultaneously muddying the lines of accountability.

This does not mean that all of the concerns underlying provincial criminal law--concerns about efficiency, for example--are necessarily misplaced or wrongheaded. It simply means that the government formally responsible for criminal law should address them directly and openly. Police workloads, "minor" criminal behaviour and overly burdensome due process regimes are legitimate topics of criminal justice administration and could be potential objects for reform. If Canadians want looser criminal laws, less due process and more "effective" policing then they may be entitled to them, but, at the very least, they should be enacted forthrightly as criminal law by a clearly accountable decision-maker. The federal Justice Department may be right to want "lower penalties or no time in jail in exchange for reduced protection under the Charter," but it should seek this outcome through reform of federal law rather than by downloading to the provinces. Edmonton's "public fighting" by-law, for example, could have easily been enacted in the Criminal Code as a "de minimis" assault provision. As Laudan (2008) argues in the American context, criminal offences that result in such small penalties warrant a streamlined prosecutorial and judicial process.

If Canadian lawmakers are overburdened by Charter considerations and police are hampered by excessive due process, this problem should be confronted directly and with due regard for constitutional values. If this is a direction Canadians wish to take their criminal justice system then so be it, but to do so largely as a jurisprudential artifact of federalism provides little accountability and no assurance of deliberation.

References

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Blais, Tony. 2010. "City fighting to retain fighting bylaw," Edmonton Sun, 22 September.

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Cases Cited

613742 N.B. Inc. v. Moncton (City) (2009) 186 C.R.R. (2d) 205.

Adult Entertainment Association of Canada v. Ottawa (City), (2007) 283 D.L.R. (4th) 704 (CA). Bedard v. Dawson [1923] S.C.R. 681.

Bondy v. Chatham-Kent (Municipality) (2008) 168 C.R.R. (2d) 221.

Brown v. Durham (Regional Municipality) Police Force, (1998) 43 OR (3d) 223.

Canadian Western Bank v. Alberta [2007] 2 S.C.R.3.

Canada v. Alberta (Board of Commerce) [1922] 1 A.C. 191 (JCPC).

Canada v. PHS Community Services [2011] 3 S.C.R. 134.

Cash Converters Inc. v. Oshawa (City) 35 M.P.L.R. (4th) 161 (O.C.A.).

Chatterjee v. Ontario (Attorney General) [2009] 1 S.C.R. 624.

Federated Anti-Poverty Groups of British Columbia v. Vancouver (City) [2002] B.C.J. No. 493.

Fredericton (City) v. Re-Purchase Shop Inc. (2003), 2003 CarswellNB 668, Cumming Prov. J. (N.B. Prov. Ct.).

General Motors v. City National Leasing [1989] 1 S.C.R. 641.

Mississauga (City) v. Theofilaktidis [2004] O.J. No. 5968.

OPSEU v. Ontario (Attorney General) [1987] 2 S.C.R. 2.

References Re Securities Act [2011] 3 S.C.R. 837.

Rio Hotel v. New Brunswick (Liquor Licensing Board) [1987] 2 S.C.R. 59.

R. v. Banks (2007) 275 D.L.R. (4th) 640 (O.C.A.).

R. v. Dyck (2008) 90 O.R. (3d) 409.

R. v. Eurosport Auto Co. (2003) 225 D.L.R. (4th) 277 (B.C.C.A.).

R. v. Fairchuk (2003) 225 D.L.R. (4th) 38 (Man. C.A.).

R. v. Hydro-Quebec [1997] 3 S.C.R. 213.

R. v. Keshane (2011) 338 D.L.R. (4th) 385 (Groves J.); overturned in [2011] ABQB 525 (Ross, J.).

R. v. Morgentaler [1993] 3 S.C.R. 463.

R. v. Wucherer [2005] B.C.W.L.D. 4971 (B.C.C.A.).

R. v. Wholesale Travel Croup, Inc. [1991] 3 S.C.R. 154.

R. v. Wigglesworth [1987] 2 S.C.R. 541.

Reference Re: Assisted Human Reproduction [2010] 3 S.C.R. 457.

Reference re Validity of Section 5(a) Dairy Industry Act (Margarine Reference) [1949] S.C.R. 1. Saskatchewan (Minister of Justice) v. Thatcher [2010] 75 C.R. (6th) 354.

Skinnydipper Services Inc. v. Surrey (City) (2007) 287 D.L.R. (4th) 514. Westendorp v. The Queen, [1983] 1 S.C.R. 43.

Notes

(1) Municipal by-laws are passed under the constitutional authority of their respective province.

(2) In cases like Rio Hotel (1987), the Court even allows for otherwise jurisdictionally suspect provisions if they can be construed as part of a "comprehensive regulatory scheme" that

Dennis Baker is an associate professor in the Department of Political Science, University of Guelph, Guelph, Ontario. The author would like to thank Mike Nicholson and Samuel Mosonyi for their research assistance and Rainer Knopff and Troy Riddell for their helpful comments. This research was supported by the Social Sciences and Humanities Research Council of Canada. is, as a whole, directed to provincial purposes (a precedent followed in Keshane, where the public fighting by-law is nestled within a larger set of by-laws regulating public property).

(3) To identify provincial laws and municipal by-laws that have a quasi-criminal character, the Canadian Abridgment (Carswell) was surveyed. Six headings were reviewed (CRM II.2.b, CRM II.2.e, CRM II.2.g, MUN X.1.e.i.A, MUN X.1.e.ii.B and MUN X.1.e.ii.D) for cases where the law (or by-law) was expressly challenged on criminal justice federalism grounds. In total, 334 case summaries were reviewed. To limit the scope of this project, only cases where the final judicial determination was made in the past decade (2001-2012) were included. In addition, only the highest court judgment to address a particular issue in a jurisdiction is included (see footnote 4).

(4) Prior to this Ontario Court of Appeal judgment, a number of Ontario trial court decisions divided on the question of whether the regulation of adult entertainment parlours was intra vires municipalities: (1) Mississauga's Body-Rub Parlour Licensing By-law 3-01 found intra vires in Theofilaktidis (2004); (2) Markham's by-law was found intra vires Musiej (2003) (reversed on other grounds in [2004] O.J. No. 1936); (3) Niagara Falls's by-law regulating body-rub parlours found intra vires on summary judgment by motions judge in 1515545 Ontario Ltd., reversed in part by (2006) 78 O.A.C. (3d) 783 (CA); (4) Brampton's by-law was found ultra vires in Pimenova (2004).

(5) The dual sex-offenders registries raise issues of provincial criminal law, but the intricacies of their development deserve a separate paper. Petrunik (2003) offers some federalism comparisons using the United States and Canada.

(6) Judge Rogin in Bondy dismisses this possibility, reasoning that, if it were to occur, the building inspector would be working as an agent of the police and subject to the same constitutional rules. This is only correct if it can be proven that there was collusion to this effect between the inspector and the police. If it were to occur by "happenstance," the traditional search and seizure rules may be circumvented as described.

(7) Section 92(15) does permit provinces to impose lengthy prison sentences, but such sentences seem most appropriate to the kinds of criminal-law purposes that provinces cannot explicitly acknowledge.

Table 1. Cases challenging "Provincial Criminal Law" since 1993

PROVINCIAL LAWS MUNICIPAL BY-LAWS

Manitoba's Domestic Violence and Vancouver's by-law prohibiting
Stalking Prevention, Protection "obstructive solicitation"
and Compensation Act, C.C.S.M., (aggressive panhandling) on city
c., D93, as upheld in R. v. streets, including within 10
Fairchuk (2003) 225 D.L.R. (4th) metres of bank entrances or ATMs,
38 (Man. C.A.), permitting civil found intra vires in Federated
"protection orders" to be obtained Anti-Poverty Groups of British
by targets of stalkers; if such an Columbia v. Vancouver (City)
order is breached, the perpetrator [2002] B.C.J. No. 493. This by-
breaks the Criminal Code offence law regulates the same activity as
of violating a court order Ontario's Safe Streets Act, 1999,
(s.127(1)). suggesting that such regulation
 can be undertaken at either the
 provincial or municipal level.

British Columbia's Insurance Oshawa's licensing by-law for
(Motor Vehicle) Act, R.S.B.C. second-hand goods dealers (46-
1996, c.231, s. 42.1 (2)(b) as 2004, April 24, 2004), found intra
found intra vires in R. v. vires in Cash Converters Inc. v.
Eurosport Auto Co. (2003) 225 Oshawa (City) 35 M.RL.R. (4th) 161
D.L.R. (4th) 277 (B.C.C.A.) (O.C.A.), facilitates police
substantially duplicates the investigations by requiring pawn
Criminal Code provisions regarding shops to send an electronic
fraud, by making it an offence for registry of transactions,
service providers to make a false including identity information
or misleading statement to the about the vendor, to the police on
corporation administering the a daily basis.
provincial automotive insurance
regime.

British Columbia's Victims of Surrey's Parks, Recreation and
Crimes Act, R.S.B.C. 1996, c. 478 Cultural Facilities Regulation
was upheld in R. v. Wucherer By-law, s. 42, found ultra vires
[2005] B.C.W.L.D. 4971 (B.C.C.A.) in Skinnydipper Services Inc. v.
on the grounds that the statute, Surrey (City) (2007) 287 D.L.R.
which introduces a surcharge for (4lh) 514. The by-law required
victims on fines levied upon the "proper bathing attire" for all
offender, specifically restricts pools rented by the city. Since
the surcharge to infractions of the Criminal Code only prevents
provincial laws and not Criminal nudity in public view (not at
Code offences. issue here since the pools were
 privately rented and beyond public
 view), Judge Williamson ruled "it
 is not open to a municipal council
 to extend a definition of
 something criminal to include
 circumstances excluded by
 Parliament." This is the only
 post-1993 "provincial criminal
 law" in this table that was struck
 down.

Ontario's Safe Streets Act, 1999, Ottawa By-law 2004-353 respecting
S.O. 1999 c.8, upheld in R. v. the regulating, licensing and
Banks (2007) 275 D.L.R. (4th) 640 governing of adult entertainment
(O.C.A.). The Act prohibited parlours, as upheld in Adult
"aggressive solicitation," Entertainment Association of
solicitation of captive audiences Canada v. Ottawa (City), (2007)
(including solicitation of a 283 D.L.R. (4th) 704 (CA). This
stopped or parked vehicle), and by-law, designed by adopting the
approaching a motor vehicle for best practices of similar by-laws
the purpose of "offering selling in Toronto, Mississauga and
or providing any commodity or Windsor, prohibited touching
service" to a driver. In short, it between dancers and customers and
outlawed the practices of required all services to be
"squeegee kids" and other forms of conducted in open designated
begging. entertainment areas. The Ontario
 Court of Appeal effectively
 clarified and endorsed the ability
 of municipalities to regulate such
 establishments (even though they
 were also subject to Criminal Code
 provisions regarding
 obscenity). (4)

Ontario's Christopher's Law (Sex Chatham's "excessive
Offender Registry), 2000, S.O., fortification" by-law (June 23,
ch. 1, as upheld in R. v. Dyck 2003), upheld in Bondy v. Chatham-
(2008) 90 O.R. (3d) 409, Kent (Municipality) (2008) 168
established Canada's first sex C.R.R. (2d) 221. This by-law,
offender registry and differs enacted specifically to deal with
substantially from the one particularly notorious
subsequently enacted Federal Sex motorcycle clubhouse in the city,
Offender Information Registration prohibits the "excessive
Act. Convicted Ontarians must fortification of land" and allows
comply with both registries. for City building inspectors to
Ontario remains the only province search the premises.
with duplicative sex offender
registries, while other provinces
rely solely on the Federal
system. (5)

Ontario's Remedies for Organized Moncton's by-law, upheld in 613742
Crime and Other Unlawful N.B. Inc. v. Moncton (City) (2009)
Activities Act ("Civil Remedies 186 C.R.R. (2d) 205. This property
Act"), 2001, as upheld in zoning by-law, which prohibited
Chatterjee v. Ontario (Attorney adult entertainment in some areas,
General) [2009] 1 S.C.R. 624, did not "legislate morality" and
allows the province to seize thus could not be considered
assets likely to have been criminal law beyond the power of
involved in crime, even where no the province.
Criminal Code conviction has been
entered.

Saskatchewan's Profits of Criminal Edmonton's Public Places By-law,
Notoriety Act, 2009, as upheld in as upheld in R. v. Keshane [2011]
Saskatchewan (Minister of Justice) ABQB 525 (Ross, J), permits police
v. Thatcher [2010] 75 C.R. (6th) to fine for "public fighting"
354, diverts profits derived from where conduct does not warrant a
a retelling of a crime to the Criminal Code charge.
victim instead of the accused.
(This "Son of Sam" law, as they
are known in the U.S., was
provoked by the impending
publication of notorious murderer
Colin Thatcher's book).