We all know that the Canadian federal government is decriminalizing marijuana, but what does that mean? Queen’s Associate Dean Academic, Cherie Metcalf, is here to explain how the federal government and provincial governments are legally linked, and how that intricate relationship is key to understanding how pot decriminalization will happen. Cherie is also the creator of the Constitutional Law module for Law 201/701 in the Queen’s Certificate in Law — to find out more about the only online certificate in law offered in Canada by a law faculty, visit http://takelaw.ca.
Almost everyone in Canada has dealt with criminal law at some point – a criminal penalty can include a simple fine like a parking ticket on through more serious punishment for serious crimes. Even if you’ve never committed a single infraction, criminal law is an active force in all our lives.
But where does criminal law come from, and who has the power to say what is criminal? Let’s take a quick look at the fundamental sources of criminal law in Canada, starting with the basic principles and structure of our criminal justice system.
Sources of Canadian Criminal Law
To get to the origins of criminal law in Canada, we have to go all the way back to 1867 and the Constitution Act. This document, issued by the British Crown, determined the exclusive jurisdiction of the Parliament of Canada over the matters of criminal law – that Canada, as a new nation, was responsible for defining and punishing its own crime.
Parliament enacted the Criminal Code in 1892. It codifies criminal offenses in Canada, though much of its content was imported from Britain. The Code is not the only source of criminal law in Canada: it has been expanded on since its creation by other federal statutes like the Canada Evidence Act and the Controlled Drugs and Substances Act.
In 1982, a new Constitution Act was passed, along with the Canadian Charter of Rights and Freedoms. The Charter establishes the fundamental rights of Canadians, including the right to a trial within a reasonable delay, and to be presumed innocent until proven guilty.
All Criminal Law is Federal
But the provinces can still get you in trouble…
Ultimately, this means that all crime is federal, in the sense that the Parliament of Canada has exclusive jurisdiction over criminal law, and is the source of the Criminal Code.
But wait! The provinces also have their own powers, and can set regulations to create quasi-criminal offenses, also known as regulatory offences. The provinces also have a number of important powers associated with the administration of criminal law – they hire prosecutors, appoint provincial court judges, and are responsible for the majority of criminal law prosecutions.
Let’s expand on that by going back to the Constitution Act of 1867. Among the many things defined in the Constitution Act are how power is split between the federal and provincial governments.
The section, 92.15, of the Constitution Act specifies that provinces are in charge of “[t]he Imposition of 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 this Section”.
So what does that mean? It means that the provinces can create the quasi—criminal offences only in relation to the matters within their jurisdiction. One example is Ontario’s Liquor Control Act. It defines, among other things, who can sell alcohol and under what conditions, which is entirely in the province’s jurisdiction as laid out in our Constitution.
Provinces can, in turn, delegate power to municipalities to create and enforce their own bylaws. Things like pet control, parking, garbage dumping, etc. are traditionally municipal, and a different set of regulatory offenses.
…and most criminal cases are tried in provincial courts!
The provinces also participate in criminal matters by upholding the administration of justice within the province including the constitution and organization of provincial courts. The section 92.14 grants provinces jurisdiction over “[t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts”.
This seems complicated!
It is! Criminal law is not for the faint-hearted. But there are basically two things to remember:
One, there are two levels of crime. Crime as defined by the Criminal Code and other statutes, like murder, assault, theft, fraud, property crimes like arson… are all federal-level crimes. Infractions of regulations, like speeding on the highway, not licensing your pet, or serving liquor without a license, are usually provincial or municipal regulatory offenses. Provinces and municipalities can have their own courts and enforcement mechanisms for these.
And second, provinces and municipalities support the federal system by helping enforce the law. That’s why the Ontario Provincial Police or the Winnipeg police force can investigate, arrest, and prosecute people for murder (a federal crime), as well as provincial and municipal infractions. All levels support the investigation and prosecution of federal crime, but only Parliament can decide what is a crime by amending the Criminal Code.
This week on Fundamentals of Canadian Law, the “Convict Code,” duress as a defense, and prison discipline — we’re joined by professor Lisa Kerr, a faculty member at Queen’s Law and the creator of the Criminal Law module of Law 201/701: Introduction to Canadian Law for the Queen’s Certificate in Law. We talk about a recent court case and how the “prison code” and the principle of duress as a defense factor into disciplinary decisions in prisons.
Students who have taken Law 201/701 are familiar with Professor Lisa Kerr through her Criminal Law module in the course. The CBC’s Sunday Edition recently gave her an opportunity to explore some of the issues that are covered in passing in her criminal law overview. Michael Enright interviews Dr. Kerr in a 30-plus minute exploration of prison law, sentencing, and issues with how sentencing is currently managed in Canada. You can listen to the full audio of this interview here:
Pop quiz: is the legal system the same in all of Canada?
You may be surprised to know that Canada – unlike most nations in the world – doesn’t operate under one set of laws. There are two (actually, three) legal systems in Canada. In Quebec, by grace of the province’s history as a French colony, Civil law is the legal system. In the rest of Canada, Common law holds sway. While they have a lot in common, there are some key differences between the two:
1. Precedent rules in Common Law
Under common law, the law is set through precedent, a doctrine called by its Latin term, stare decisis. This means that judges are obliged to abide by earlier decisions by other judges working in the same court system as them, or by higher-level appeal courts. That means every decision made by a judge in a court becomes part of the common law, until it is appealed or overridden by a higher level court. In common law, legal research skills are paramount: finding a prior decision that supports a specific outcome is an essential skill for lawyers.
Quebec, however, operates under a civil code, itself derived from the Code Napoleon (Napoleonic Code). This means that the province operates under a fixed system of laws, and justices make decisions according to that code. Precedent can be used to help guide decisions for consistency, but precedent is not binding.
2. Academics’ influence varies by system
Since precedent informs, but doesn’t govern the civil law system, academics have a unique voice in Quebec law, compared to the rest of Canada: since judges have more latitude to interpret the civil code as they see fit, the opinions of scholars have more weight than in common law jurisdictions, and judges often turn to the “doctrine” of academic commentary for guidance.
In common law, academic work can be a “secondary source” to precedent, and help judges make new decisions, but does not outweigh clear precedent.
3. Afraid of jury duty? Move to Quebec!
At the provincial level, juries can be a factor at any trial in the common law system. In Quebec, though, under civil law, juries are much more rare, and don’t usually come into play in private disputes.
Criminal law is not affected by the common/civil law split, as criminal law and procedure is federal, public law – the right to a jury trial in criminal matters, particularly serious ones, is governed by federal, not provincial laws.
4. Both terms are confusing as heck
Be sure not to confuse common law, the legal system, with common-law, the relationship status. Common-law relationships can vary in definition according to jurisdiction, but are recognized under both the civil and common law.
While we’re at it, civil law, the system of laws, is not the same as “civil law” as a term related to “public law” – in the latter case, “civil law” is a synonym for “private law,” and describes any legal relationship between a person and other people, as opposed to a person and the state itself.
Wait — didn’t you mention a third legal system?
Aboriginal and treaty rights are recognized as legally binding by the Canadian Constitution – Indigenous laws can be incorporated into these rights, and also form a very important part of the tapestry of Canadian law.