Criminal Law and the Division of Powers: Chatterjee v. Attorney General of Ontario
This Friday, the Supreme Court of Canada will be delivering its judgment in Robin Chatterjee v. Attorney General of Ontario, a case that contemplates a division of powers issue. Specifically, the SCC was asked to consider whether sections 1-6, 16 and 17 of the Remedies for Organized Crime and Other Unlawful Activities Act (the “Civil Remedies Act,” or “the CRA”) are ultra vires the province of Ontario on the ground that they relate to criminal law, a subject matter that is exclusively within federal jurisdiction. A finding that the CRA does relate to criminal matters would render it in violation of section 91(27) of the Constitution Act, 1867.
The matter arose in March 2003, after the appellant’s vehicle was stopped by police for a missing license plate. Following this investigation, the appellant was arrested for a minor offence, which was ultimately not prosecuted. However, the search of the vehicle incident to the arrest yielded nearly $30,000 in cash and various items that are often associated with indoor marijuana grow ops. Though the cash and equipment smelled strongly of marijuana, none of the actual drug was found; as such, the police did not have sufficient evidence to charge the appellant with any drug-related offence. Instead, the Attorney General of Ontario brought an application in rem (a claim for property) for the forfeiture of the cash and chattels as proceeds and instruments of unlawful activity pursuant to the CRA. In response, the appellant brought a motion challenging the constitutionality of that legislation as ultra vires the province and for its violation of sections 7, 8, 9, and 11(d) of the Charter.
At trial, this motion was dismissed and the motion for forfeiture was granted. It was held that the pith and substance of the legislation was to disgorge financial gains obtained through unlawful activities in order to compensate both private and public victims of unlawful activities, as well as to suppress the conditions that lead to unlawful activities by removing incentives. The trial judge held that while the legislation may have some criminal law purpose, the legislation could not be classified as criminal law because it lacks both a prohibition and a penalty. He found that the Act relates almost entirely to the property and civil rights in the province, and is therefore valid under section 92(13) of the Constitution Act, 1867. The Court of Appeal for Ontario agreed with this finding and dismissed the appeal.
The appellant has abandoned the Charter issue for his SCC appeal, but the question of division of powers remains for the court’s consideration. Section 91(27) of the Constitution Act, 1867 gives federal parliament the power to enact laws concerning criminal law and procedure, while section 92(13) allows the province to make laws in relation to property and civil rights matters. A key difference between the laws enacted under these two sections is the extent of their punishment, as only the federal laws are permitted to legislate on matters that will punish behaviour as criminal. Given the sound findings of the trial and appellate courts that the CRA is intra vires because it does not prohibit or penalize, the SCC will likely deliver a similar finding. Nevertheless, the appearance of this case before the country’s highest court demonstrates that the division of powers is still a live issue in Canadian constitutional law.