Health Protection Branch

Parliament's Power to Control Criminal Records In the Possession of Provincial Enforcement Agencies

Recent federal proposals concerning cannabis and the Criminal Records Act R.S.C. 1970, (1st Supp.), c. 12 call for limits on the dissemination of criminal records in order to reduce the collateral punitive consequences of a criminal conviction. Since the bulk of criminal records are generated and maintained by provincial enforcement agencies, the issue arises whether Parliament can control dissemination of this data.

Section 91(27) authorizes Parliament to legislate in relation to criminal law and procedure, and this power carries with it some responsibility for the enforcement and prosecution of the criminal law. The management of the criminal records generated by federal agencies is necessarily incidental to Parliament's enforcement power and is within the federal sphere of legislative competence. The provinces' power over the administration of justice s. 92(14) provides them with concurrent authority to enforce and prosecute the criminal law. The record-keeping practices of provincial enforcement agencies are clearly within this provincial mandate. It should be noted that the provinces have assumed primary responsibility for enforcing and prosecuting the criminal law, and that the federal government's activities are limited to a relatively small number of specialized criminal offences. Even if the federal government expanded its role, it is doubtful that control of provincial record-keeping would be considered necessarily incidental to federal enforcement.

If all record-keeping in criminal cases is a matter of criminal procedure or is necessarily incidental to criminal procedure, it would fall within Parliament's jurisdiction under section 91(27). In response, the provinces could argue that the criminal records of provincial enforcement agencies are a matter relating to the administration of justice and that consequently, they alone have legislative competence in this field. The provincial argument for exclusive control appears to be more compelling. Provincial enforcement agencies collect, maintain and disseminate criminal records in the ordinary course of enforcing and prosecuting the criminal law, and record-keeping is essential to the efficient and orderly administration of criminal justice. It is difficult to predict how the courts would resolve this issue. There are no cases directly on point and the boundaries between Parliament's criminal law and procedure power, and the province's administration of justice power have not been clearly defined.⁵⁵

In Re Hauser And The Queen, [1977], 80 D.L.R. (3d) 161 (Alta. C.A.) the court examined these two heads of power in relation to the prosecutorial function. Three of the five judges favoured a broad view of the province's power over the administration of justice — a view that would support the province's exclusive control of provincial record-keeping practices. However, the Hauser case is not an authoritative precedent. The case deals with the prosecutorial function not criminal records, contains a strong dissent, conflicts with the reasoning in other Court of Appeal decisions,⁵⁶ and is under appeal to the Supreme Court of Canada.

On balance, Parliament probably does not have the constitutional power to control the dissemination of criminal records in the possession of provincial enforcement agencies. This conclusion may have to be reconsidered after the Supreme Court of Canada decision in Hauser. In any event, the Hauser case indicates that some provinces would likely challenge federal attempts to control provincial record-keeping.