The Provincial Power to (Not) Prosecute Criminal Code Offences

30 Pages Posted: 7 Mar 2017 Last revised: 9 Nov 2017

See all articles by Dennis Baker

Dennis Baker

University of Guelph - Department of Political Science

Date Written: February 8, 2017


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 had 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 and 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. I argue that the judiciary, for reasons unrelated to the administration of criminal justice, skewed the underlying constitutional design to accommodate other (non-criminal) federal objectives. 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 Laskin’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 properly 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.

Suggested Citation

Baker, Dennis, The Provincial Power to (Not) Prosecute Criminal Code Offences (February 8, 2017). Ottawa Law Review, Vol. 48, No. 2, 2017, Available at SSRN: or

Dennis Baker (Contact Author)

University of Guelph - Department of Political Science ( email )


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