Provincial Non-Enforcement of Federal Criminal Law

Tension about the uniform application of federal criminal law is in the news again. There is a suggestion that Ontario may refuse to enforce Canada’s new prostitution legislation, enacted recently after the previous provisions were struck down by the Supreme Court of Canada. This recalls recent and ongoing controversies in North America: state legalization of drugs targeted by federal law in the United States and Quebec’s attempt to legitimate physician-assisted suicide in spite of a federal prohibition of the practice.

The issue arises in Canada because, while criminal law is a federal power, the provinces have competence over the administration of justice. Parliament could, if it wishes, ensure uniform enforcement of the new prostitution legislation. But this would probably require new legislation, which might in turn provoke a constitutional challenge: the decisions giving the federal government primacy in enforcement have been criticized and seem far enough out of line with current
jurisprudential trends that the Court might be tempted to qualify or overrule them.

The particular issue of non-enforcement has not been treated by Canadian courts, as far as I know. It may be in the challenge by a group of physicians to Quebec’s recent legislation (though this is likely to be mooted by the outcome of a rights-based challenge to the federal prohibition on assisted suicide). I imagine the conventional view is that the law must be applied uniformly and, even though there is enforcement discretion vested in the provinces, to enact a policy
of non-enforcement would undermine the rule of law.

But the attraction of this view is superficial. A province which wishes to refuse to enforce a federal prohibition is more likely to succeed if it does not issue a formal policy and relies instead on case-by-case discretion necessitated by scarce resources, supplemented perhaps by  informal instructions to police officers and prosecutors. Does this really promote the rule of law?

By contrast, Quebec’s legislation is vulnerable to challenge because it sets out a policy based on principle which seeks to give effect to the preferences of the public in the province. Coherent constitutional law for a federation would encourage openness about the exercise of enforcement discretion, especially when a principled policy has been adopted to give effect to the desires of a distinct demos. Pleading the poor mouth should not be more effective constitutionally than setting out a principled policy.

This content has been updated on December 11, 2014 at 09:29.