Just Asking

Should the power over criminal law be transferred to the provinces?

Let me ask you what might be a provocative question: is there a good reason why criminal law and criminal procedure should be a matter of federal jurisdiction in Canada? The initial choice of the Fathers of Confederation to make them matters for Parliament under section 91(27) of the Constitution Act, 1867 was justified and turned out well, I think. But the reasons that were relevant at Confederation, and for a century thereafter, no longer hold true. Should we amend the constitution to make criminal law a provincial power ― and, if so, on what conditions?

I should note that this post is just me thinking on the screen. I do not mean it as a definitive word on anything. I am not an expert on criminal law, and might be missing something important. By all means, tell me if, and why, you think I’m wrong (or more wrong than usual). Still, I thought these questions are worth thinking about.

So far as I can tell ― and I haven’t done any actual research on this, so I may just be spewing out preconceptions and received wisdom here ― criminal law and procedure being a federal power continues the basic divide established as early as the Quebec Act 1774. Private disputes would be “determined agreeably to the said Laws and Customs of Canada“. To preserve the ability of the French Canadian majority in Québec to control (most of) its private law, “property and civil rights” became subject to provincial jurisdiction at Confederation. By contrast, the Quebec Act maintained English criminal law in force:

whereas the Certainty and Lenity of the Criminal Law of England, and the Benefits and Advantages resulting from the Use of it, have been sensibly felt by the Inhabitants, from an Experience of more than nine Years, during which it has been uniformly administered; be it therefore further enacted by the Authority aforesaid, That the same shall continue to be administered, and shall be observed as Law in the Province of Quebec, as well in the Description and Quality of the Offence as in the Method of Prosecution and Trial.

The lenity of the Criminal Law of England was such that dozens if not hundreds of offences could lead to hanging, but that was still better than judicial torture, which had existed under ancien régime French law. Here again, Confederation ensured that the status quo would continue, by putting criminal law within Parliament’s jurisdiction ― in contrast to the situation that prevailed in the United States and that would prevail in Australia.

This was as well. I doubt there was any chance of French criminal law being brought back to Canada in the 19th century ― even maintaining the old civil law proved a frightful challenge, which was one of the reasons for the introduction of the Civil code of Lower Canada (as I explained here). But given the relative moderation of federal politics in comparison with what went on in some of the provinces, notably with the authoritarian regimes of the Social Credit in Alberta and the Union Nationale in Québec, federal control over criminal law has been a blessing. It was the reason, notably, for the invalidation of Québec’s ban on “communistic propaganda” in the notorious “Padlock Act” in Switzman v Elbling, [1957] SCR 285.

But something very important happened since then: the enactment of the Canadian Charter of Rights and Freedoms. Section 2 of the Charter protects Canadians across the country from dictatorial legislation such as the Padlock Act. Sections 7 to 14 of the Charter entrench substantive, formal, and procedural provisions historically associated with the “certainty and lenity of the criminal law of England”. Section 24 of the Charter and section 52(1) of the Constitution Act, 1982 provide remedies against governments and legislatures that disregard these rights. These judicial protections (subject to an obvious caveat, to which I will get shortly) are likely to be more effective than the structural devices employed at Confederation. After all, we know that Parliament keeps enacting, and the courts ― to the chagrin of “tough-on-crime” politicians and even some misguided judges ― keep invalidating absuvie criminal laws. As a result, it’s not obvious to me that the centuries-old reasons for making criminal law a federal matter are still valid.

Meanwhile, there are other considerations, some also longstanding but others less so, that support transferring this power to the provinces. The former category includes the principle of subsidiarity: the idea that power should be decentralized and exercised as closely to the citizen as it can be effectively exercised. It’s not clear to me why the provinces couldn’t competently and effectively legislate over criminal law and criminal procedure. As it is, they already legislate over provincial offences under section 92(15) of the Constitution Act, 1867. Since criminal law reflects moral considerations, it would make sense for Canadian provinces, with differing moral outlooks of their electorates, to be in charge of defining this law for themselves. Other usual benefits of decentralization, such as the possibility of provinces experimenting with different policies, within constitutional constraints, would also apply.

The more novel benefit of transferring the power over criminal law to the provinces would be to nip in the bud the tendency for Parliament to rely on the criminal law power to enact regulatory schemes that invade areas of provincial jurisdiction ― or, rather, since this tendency is already well-developed, to pluck off its increasingly putrid flower. Examples of this tendency, all upheld at least in part, include laws dealing with tobacco advertising, the registration of firearms, assisted human reproduction, and most recently genetic non-discrimination. (Shannon Hale blogged here on her and Dwight Newman’s critique of the Supreme Court’s lax approach to Parliament’s criminal law power in Reference re Genetic Non‑Discrimination Act, 2020 SCC 17.) Denying Parliament the power to make criminal law would not only allow us to reap the benefits of federalism in this area, but also to preserve them in others.

Now, I do think that some safeguards must be in place for this change to the distribution of powers to work well. One is already part of the Canadian constitution’s design. Others will need to be implemented as part of a package of amendments together with the transfer of jurisdiction over criminal law to the provinces.

The (mostly) existing safeguard the appointment of the judges of the superior courts, who preside at the most significant criminal trials, by the federal rather than the provincial governments. This has been an important barrier against the power of populist provincial governments. It will become an even better one if the federal government exercises its appointment power without being distracted by populist tough-on-crime considerations that caused it, for example, to introduce police officers into the selection committees that vet prospective judges. However, for this system to continue to work well, it will need to be coupled with an assurance that at least the more serious criminal cases will continue to come to the superior courts, either for trial or, at least, on appeal. Section 96 of the Constitution Act, 1867 may do this already, but I would prefer an explicit addition to section 11 of the Charter.

The other additional safeguards I would want to see include, first and foremost, the repeal of the Charter‘s “notwithstanding clause“, which allows Parliament and, more to the point, provincial legislatures, to suspend the effective protection of the rights entrenched in sections 2 and 7-15 of the Charter. At a minimum, the protections of the rights of the accused in sections 7-14 should be free from the threat of override; but it is highly desirable that the substantive protections of fundamental freedoms in section 2 should be so too. Section 15 is perhaps less relevant here, but there is no reason to maintain the “notwithstanding clause” for its sake. The reason for contemplating transferring the criminal law power to the provinces, despite the greater risk of populist takeovers, is that the Charter protects against its being abused. This protection must be effective at all times, and not at the provincial legislatures’ sufferance.

Lastly, some additional adjustments to the division of powers scheme will be necessary. For one thing, a federal equivalent of the current section 92(15) will be necessary to replace Parliament’s plenary criminal law power. Just like the provinces now, Parliament should be able to provide for penal enforcement of its legislation. Moreover, some measure of extra-territorial criminal power will need to remain with Parliament as well. There is of course some danger that even this limit grant of power will be abused. This is what has happened in the United States, despite Congress not having any explicit criminal law powers. The crimes created under the power to enacted laws “necessary and proper for carrying into execution” Congress’s other powers have become literally innumerable: when the American government tried to count all of the offences on its books, it failed. (Some are documented by a darkly humorous Twitter account.) However, the Canadian jurisprudence on the division of powers generally, and on ancillary powers in particular, is much more robust than its American counterparts, so one can reasonably hope that this American disaster can be avoided in Canada. For another, while the federal power over penitentiaries in section 91(28) will no longer make much sense, a more limited power to maintain a carceral system for those convicted of the remaining federal offences will be necessary.

Needless to say, there is very little chance of my proposals ― even assuming that they make sense which, to repeat, they may well not ― ever being taken up. Even apart from Canada’s general, and I’m inclined to think generally sound, aversion to constitutional tinkering, I just don’t see Parliament giving up such a high-profile legislative power that has, for politicians, the virtue that its exercise allows for relatively low-cost grandstanding and virtue-signalling. But who knows. And, if nothing else, I think we should from time to time ask ourselves whether the existing division of powers makes sense, if only to remind ourselves of the reasons why we have it and why, on the whole, it is a good and useful thing.