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Alberta should learn something about provincial prosecution rights from Quebec Print E-mail
Written by Link Byfield   
Monday, 17 May 2004

The government of Quebec informed Ottawa some time ago that it will no longer prosecute certain first-time Criminal Code violations.

Non-prosecution last year saved Quebec taxpayers the trial costs for 834 pot-smokers, 1,876 petty thieves, 307 mischief-makers, and 807 physical assailants. Instead, they were all sent stern letters warning not to do it again.

In short, Quebec has claimed the right not to prosecute the Criminal Code on four grounds.

And is Ottawa upset? Apparently not. National justice department spokesman Sylvain Beaudry commented, "While the Criminal Code is federal law, the provinces are responsible for implementing it. Therefore, there is leeway in the implementation, if so desired."

I wish he'd explain this to Alberta Justice Minister David Hancock in the matter of gun control. Hancock has sent out thousands of letters (and other MLAs have sent out thousands more) stating that Alberta MUST enforce all sections of the Criminal Code, whether it agrees with them or not.

"Without exception," the Hancock letter has claimed, "case law has established that 'blanket exemptions' [are] not an available option for an Attorney-General."

Okay, Dave, tell us why 3,824 Quebeckers got letters last year from their provincial justice department stating, in effect, that as first-time offenders they have a blanket exemption from certain Criminal Code charges.

Why won't Alberta take the same approach to the gun registry? Why did it prosecute 75-year-old gun registry protester Oscar Lacombe, who was sentenced last Thursday to five months' probation?

Instead, it could have sent him a Quebec-style letter:

"Dear Mr. Lacombe, you appear to be technically in breach of a new section of the Criminal Code. It forces you to register your Cooey squirrel rifle with an incredibly wasteful and inefficient national bureaucracy. We suggest you comply when you can get around to it."

Or words to that effect.

To date, Alberta cabinet ministers and MLAs have received 114,000 signed e-mail letters asking them to stop prosecuting the gun law, and Hancock's excuses are starting to wear thin.

In fact he was heckled by his own party in the Legislature on April 28. He stood up to brag about what a great job his department is doing, and Tory members (even cabinet minister Mark Norris) kept yelling, "Free Oscar! Free Oscar!"

They could also have shouted, "Read some history!" Sole discretion over Criminal Code prosecutions is a provincial right dating back to Confederation.

Centralists like John A. Macdonald did not want each province continuing to pass its own criminal statutes, as in the United States. However, most of our constitutional framers strongly supported provincial rights. Provinces therefore retained exclusive discretion over the prosecution of criminal charges. That was the deal.

Unfortunately, provincial rights disappear if ministers like Hancosk don't understand and exercise them.

For example, if any major province like Alberta, supported by one or two smaller ones, stopped enforcing the Criminal Code gun registration section, the thing would wither on the legal vine. Any criminal law that is not evenly prosecuted is struck down as unconstitutional.

The reason the federal government respects Quebec's rights and not ours is that Quebec asserts them and we don't.

- Link Byfield

Link Byfield is chairman of the Edmonton-based Citizens Centre for Freedom and Democracy, and an Alberta senator-elect.
"Just Between Us" is a feature service of the Citizens Centre for Freedom and Democracy. The purpose of the Citizens Centre is to enhance freedom and democracy by enabling ordinary citizens to become active and effective on important issues outside the normal processes of party politics.

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