Health Protection Branch

Criminal records.  

Parliament has jurisdiction over criminal law and procedure by virtue of s. 91(27) of the B.N.A. Act. However, under s. 92(14) the provinces are responsible for the administration of justice, including the constitution, maintenance and organization of the criminal courts. Provincial enforcement agencies generate enormous amounts of data, and the issue arises as to whether it is Parliament or the provinces which can control the collation and dissemination of this information. These police and court records are created in the normal course of the administration of criminal justice and are essential for system management. Consequently, the provinces would argue that these data rest within their sole constitutional power. The federal Government would claim that control over such records is necessarily incidental to its powers over criminal law and procedure, and that therefore it is competent to enact legislation concerning the data. If the federal government is right, then it might, through the doctrine of paramountcy, be able to control these data despite contraveiling provincial legislation.

Although this specific matter has not yet been litigated, the Supreme Court of Canada is presently deciding a somewhat analogous issue involving a conflict between the provincial power over the administration of criminal justice and Parliament's power over the criminal law. (See, Re Hauser and The Queen (1976), 80 D.L.R. (3d) 161 (Alta. C.A.))² Based on appellate court decisions and available authorities, it would appear that the provinces may well have exclusive control over the collection and dissemination of these records. This issue is of crucial importance as several of the cannabis control options discussed below, as well as proposed changes in the Criminal Records Act purport to prohibit the dissemination of any police, court or related record in the hands of any administration of criminal justice agency of any government. While the purpose of these federal proposals is commendable — namely, to reduce the collateral punitive consequences of a criminal record — they may nonetheless be unconstitutional. In analyzing the legislative options it is important to keep in mind that Parliament may not have the constitutional power to limit the collection and dissemination of local and provincial police and court records which it is responsible for creating.

In summary, Parliament's range of options is limited. It cannot create a civil offence. Once Parliament has made a certain cannabis-related criminal, the entire spectrum of collateral consequences of a criminal record automatically apply. While some of these consequences can be retroactively "deemed" away through elaborate legislative mechanisms, the criminal offender will inevitably suffer some residual disadvantages. If Parliament is intent on eliminating these consequences for possession of small quantities of cannabis, it must explicitly remove the criminal offence in such a fashion as to prevent the provinces from enacting parallel provincial offences.