Canada, House of Commons Debates, “Application of Federal Laws in Various Provincial Courts”, 32nd Parl, 1st Sess (2 April 1981)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1981 at 8903-8909.
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APPLICATION OF FEDERAL LAWS IN VARIOUS PROVINCIAL COURTS
Mr. Hal Herbert (Vaudreuil): […] First, may I outline why I asked for these documents and why I believe that some documents must exist somewhere in the Department of Justice. It is true that when we are dealing with variations in the application of justice in the provinces we do have certain acts and bills in which regional variations are recorded. I will cite one or two examples. The first one concerns Section 150 of the Prisons and Reformatories Act. This is a federal act. Where a person under 22 has been convicted in British Columbia of an offence punishable by imprisonment for at least three months, that person may be sentenced to imprisonment for a term not less than three months; but he can be imprisoned for a period up to two years minus one day. Once sentenced under these circumstances, instead of going to jail the individuals are sent to certain correctional institutions.
In a proclamation under the Juvenile Delinquents Act, to give another example, a “child” means in the province of Alberta a girl under the age of 18 and a boy under the age of 16. Thus, there are provisions for treating people differently in different provinces. These variations have been ruled upon as not being discriminatory. One can then ask if the constitutional proposal, when adopted as the Constitution of our land, will have any effect on these
laws. In the case of family law, many women have expressed strenuous objection to a proposed transfer which would see the federal government passing jurisdictional responsibility to the provinces. The federal government has indicated its willingness to hand over these powers, and at least the two provinces of Quebec and Ontario have indicated their desire to take over this responsibility.
As the law applies to divorce, this could create a wide variation in treatment from province to province. Even today, with only the one federal law, there is room for a great deal of variation. It is not clear just how much variation there has been because no attempt has been made to quantify cases on a provincial basis.
Although our judges are guided by a doctrine of precedents, consistency is generally maintained only within a given jurisdiction. No province is bound by the case law of another province.
The difference in the manner in which a province proceeds in certain cases can accentuate the difference in treatment between provinces of what are essentially similar cases. The interpretation of the Divorce Act is an example. First, there has to be a case in order to be able to proceed. The making of a case often requires the co-operation and assistance of provincial law enforcement authorities. The degree of willingness of the provincial police forces to allocate personnel will, therefore, be a factor in the ability of a person to establish a reasonable case in court.
At the present time discussions are continuing in an effort to regulate some disagreement in the various provinces which use the Royal Canadian Mounted Police as their police force. At least in those provinces, there is one police force which, presumably, acts in a reasonably consistent fashion. Of course, each of the two largest provinces of Ontario and Quebec, which contain two-thirds of the population of this country, has its own provincial police force. Each of those two police forces is under the control of the provincial authority in those respective provinces.
We must not forget that expenditure of money is almost always necessary in order to proceed by legal process. Once again, the willingness or unwillingness of the provincial authorities to allocate funds at the political level has a big influence on the ratio of successful cases, certainly for poorer persons. Apparently the differing attitudes of the provincial governments toward their responsibility for law enforcement will establish a variety of standards of enforcement, prosecution and sentencing from coast to coast in Canada.
Let me be clear. I am not arguing against variations of provincial treatment. Likewise, I am not arguing for regional variations. I am only pointing out this afternoon that they do exist, are not tabulated-at least according to the response I got to my motion-and most surely should be considered in the formulation of federal legislation.
This week, for example, proposed changes to the Narcotic Control Act have been reported in the press. Apparently introduction of an amending bill was delayed until after the March 19 Ontario provincial election because of fears the Conservative government might turn it into a campaign issue. The only strong opposition to reduction of penalties has come from the Ontario government.
Under the Narcotic Control Act a person can get a maximum seven-year sentence if possession is treated as an indictable offence. Most of the 27,000 individuals convicted of possession in 1979 were given absolute or conditional discharges or light fines. Jail sentences are still imposed occasionally. Note that in the case of marijuana, the intention will be to limit the penalty for possession.
The federal government recognizes its responsibilities and its powers to ensure that the punishment for a transgression can be limited. Whether one agrees or disagrees with the subject matter and its handling, there is an inherent feature of equalization in this measure in that it would establish a far more moderate maximum penalty. The argument cannot, however, be applied to the minimum penalty with the same assurance of equality of treatment.
If I can speak briefly on the abortion issue as an example of inequality of application of federal legislation, it is abundantly apparent that in the province of Quebec the attitude of the Quebec government towards abortion on demand can be cited as very liberal, many will say far too liberal.
One can argue that it is a problem caused by the refusal of hospitals to establish abortion committees. However, that does not, or at least theoretically should not, give provincial law enforcement authorities the permission or the right to shut their eyes to what many people believe to be widespread illegal activity.
Let me reiterate that the raising of this particular issue is not an attempt by me to argue in this debate the pros and cons of the abortion issue, but simply to point out that one piece of federal legislation is viewed and treated in a completely different fashion in two neighbouring provinces. Such variation in treatment was never envisaged in the original legislation.
It is also appropriate to cite as an example today the decision of the dissenting provinces to proceed first in the Manitoba court. This had nothing whatever to do with its central location. It was, however, believed to be the court most likely to produce a favourable decision for the provinces that were fighting the constitutional proposal.
Then the dissenting provinces chose to proceed in Newfoundland and achieved a result which they would readily admit, I am sure, might not apply in the other provincial courts. Once again, what is accented is regional disparity in the administration of justice. I should reiterate, and I think it is important to keep saying this, that I am not arguing for or against such regional disparity. I am only asking in this motion that these differences, which I am trying to illustrate do exist, should be quantified.
A provincial prosecutor has certain discretion to decide whether to charge, at what level to charge and, in the event of conviction, to suggest to the judge conditional release, a fine or
imprisonment. Without identifying cases, which I believe would be an abuse of my privilege to speak freely in this House, the requested incarceration, in more than one example of what some refer to as a political crime, has been lenient to the point of being questionable. There is at least the suggestion of political manipulation.
Law reports are devoted to sentencing and judges meet to discuss these reports. In many cases, the judiciary may already find itself limited because of what has transpired in the decision on how and where to prosecute.
In England, a study has been completed on discretion in prosecution. I have been told that the Law Reform Commission is conducting a study. Possibly it deals with the problem under discussion. However, I find it hard to believe that the officials in the Ministry of Justice have not at any time discussed, studied or written any communication dealing with a comparison of the application by the various provincial courts of federal laws.
Mr. Ron Irwin (Parliamentary Secretary to Minister of Justice and Minister of State for Social Development): […] I think the hon. member does understand, but I would remind him, that part of the problem goes directly to the British North America Act and the division of powers. For instance, under Section 91(27) the federal government is responsible for criminal law. This reads:
The criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters.
That jurisdiction belongs to the federal government
Penitentiaries, dealt with in the next part, fall within the scope and jurisdiction of the federal government. It states:
The establishment, maintenance and management of penitentiaries.
On the other hand, the provinces have the administration of justice under Section 92(14), which states:
The 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.
As far as incarceration is concerned, under Section 92(6) the province is responsible for:
The Establishment, Maintenance and Management of Public and Reformatory Prisons in and for the Province.
What it means, and I do not know how this was developed historically, is for terms of imprisonment over two years the federal government is responsible, and for terms of imprisonment under two years the province is responsible.
While the historical documentation surrounding the development of the division of powers at the time of confederation is not clear, there is a general consensus to the effect that the fundamental distinction of constitutional jurisdiction in the field of criminal justice was aimed at developing, on the one hand, a consistent and nationally applicable set of laws and, on the other hand, allowing for the application of those laws in a way sensitive to the variation of conditions in the provinces and regions.
Besides this constitutional distinction there is a distinction periodically in substance and a distinction periodically in procedure. On substance, if I might through you, Mr. Speaker, give an example to the hon. member, in the criminal law on obscenity we refer to what is called the “community standard”. Community standards vary from community to community across this country, and if not from community to community, certainly from region to region. Let me give an example in respect of procedure. The use of the grand jury varies from province to province.
As much as we want uniformity, for example, in sentencing, there is a wide discretion on the individual judge, and I suggest rightly so. What happens is that in most sections there is a maximum term in the Criminal Code and the sentencing judge has a discretion to look at the nature of the offence, whether there is a chance of rehabilitation and what should be the deterrent, and then decide whether there should be a conditional discharge, an absolute discharge, a fine, incarceration or several other different types of sentences now under consideration and being actively pursued.
There are certain crimes which are more prevalent in one area than another. This is evident from the month-end reviews by provincial court judges in Ontario. Provincial court judges will indicate that in a particular area there have been so many thefts, so many impaired drivers, and the number varies from region to region. A judge may want to have a specific deterrent in a particular area, so there should be some flexibility.
Some jurisdictions in the United States have tried this. They have imposed with some considerable success guidelines which restrict the police, the prosecution, the nature of the sentence and the nature of the correctional institutions. While there may be a great deal to be said about the need to subject the exercise of discretion to such guidelines—and I understand considerable attention is being paid to this in Canada now and has been in recent months and years—I am not certain we would wish to endorse without restraint this type of rigidity in criminal justice in Canada. This has not been the traditional stance of governments or of Canadians since 1867. I think we must respect growth in criminal justice because it was built on true trial and error.
On the other hand, if you look at the new Constitution and the consistency and uniformity of rights that will be applied, I think you will see that many of the things the hon. member for Vaudreuil has suggested will be incorporated. For instance, if this Constitution is passed there will be certain uniformity because no province or federal government can on its own take away certain basic rights. We are talking about legal rights specifically and most of them are in the proposed sections starting with Section 7.
I will briefly give some examples. In Section 7 there is a right to life, liberty and security of a person, and this right is to be applied uniformly across the country. By Section 8 there is a right of security against unreasonable search and seizure, and this is also applied uniformly across the country. Under Section 9 the legislatures are prohibited from passing laws that would provide for arbitrary detention or imprisonment. Under Section 10, on arrest or detention there is a right to be informed promptly, given the reason, the right to retain and instruct counsel, the right to be informed of that right, and the right of habeas corpus. Section 11 involves the uniform right across the country to be informed properly of an offence, the right not to self-incriminate and the right to be presumed innocent. Section 12 deals with cruel and unusual treatment or punishment, about which the hon. member is talking. Section 13 deals with self-incrimination and the protection of witnesses. Section 14 provides a uniform right across the country to assistance through interpreters. Section 15 basically is a leveller; it gives uniform rights across the country. It says in essence there cannot be a provincial or federal law that will discriminate because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disabilities.
Later on there is a right to have a jury. That is not to suggest that there is a provincial right or a federal right to a jury; rather, there is a Canadian right to a jury.
Let me take this opportunity to remind some of the opposition members that these particular rights are included in this proposed Constitution. Maybe they have not read it and maybe they are not aware of them, but, as the saying goes, if a lack of knowledge will not hurt you, the Progressive Conservative Party is practically invulnerable. Members of that party say we should wait for the decision of the Manitoba Court of Appeal and the Newfoundland Court of Appeal; wait for this premier and that premier. They are waiting for their ship to come in. They have waited so long I suggest their pier has collapsed.
What have we heard from them? We heard one hon. member raise a point of order on the tabling of documents, another hon. member on the use of the initials “MP”, another hon. member on misleading answers, another hon. member on unparliamentary remarks, another hon. member—