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- Title
The Provincial Power to (Not) Prosecute Criminal Code Offences.
- Authors
Baker, Dennis
- Abstract
COULD THE PROVINCE OF Ontario have refused to prosecute the new "commodification of sexual activity" criminal offence, as passed by the Federal Government in response to Bedford? That question is the subject of this paper. While there are clear precedents for provincial non-enforcement, those instances of provincial non-enforcement have seemingly been tolerated by a Federal Government ambivalent about its own laws. My position is that the provinces have at least a concurrent constitutional power over the prosecution of criminal law offences and a concomitant power to choose not to prosecute a validly enacted federal law. This position reflects an understanding of the original bargain struck in 1867 that sees the criminal justice powers separated functionally, which provides the opportunity for effective "checks and balances" in the moderation of criminal law. After discussing the delicate balance established by the British North America Act, 1867, the judicial unsettling of this scheme in the early 1980s will be briefly examined and questioned. While this "unbalancing" of the criminal justice powers has likely inhibited provincial exercises of their prosecutorial authority--or at least contributed to the confusion about their operation--a provincial power of non-enforcement remains viable even under the Court's "delegated" approach. Several objections to non-enforcement are considered and found unwarranted in light of the overall discretionary nature of criminal prosecution. Properly understood and exercised, however, provincial non-enforcement is best understood as harmonious with the constitutional balance struck in 1867 and could continue to offer salutary effects for the administration of criminal law in Canada.
- Subjects
SEXUAL intercourse -- Law &; legislation; LEGAL precedent; ONTARIO politics &; government; CRIMINAL law; CRIMINAL justice system
- Publication
Ottawa Law Review, 2017, Vol 48, Issue 2, p419
- ISSN
0048-2331
- Publication type
Article