When colonists conquer a territory, they enforce their habits and customs, as well as their laws. You can well imagine that this “mode of operation” was for the French to build New France, and then for the English to assert themselves during their conquest.
It was therefore in 1763 that England, by royal proclamation, imposed her common law and statutes upon the inhabitants of New France. Parliamentarians from Quebec and Ontario did not sit idly by, however. Through their legislatures, they adapted English laws to their reality and their values while retaining the common law.
When the provinces of Canada (Ontario and Quebec), Nova Scotia, and New Brunswick united, each had its own version of English penal and criminal law. Through the constitutional law of 1867, the federal government granted itself the right to regain this power in the name of a so-called need for uniformity and in 1892, 25 years later, created the first penal code.
The Australian model
Countries with a federal system do not all work the same way. In the United States, the states share legislative power in criminal and criminal matters with their federal government. Australia has also adopted this system. In fact, in my opinion, their model is much better than the American one, since it limits the federal government to legislating in criminal and criminal matters only within its “spheres of competence” such as terrorism, espionage, illegal immigration, drug importation, illegal fishing, tax evasion, etc.
Australian criminal and criminal law is therefore in effect a state jurisdiction. Couldn’t that also apply to Canada?
The strength and the will
As I am sure you have seen, under the banner of (criminal) rights, the Trudeau government is doing anything and everything related to security. Nor is he afraid to play with the constitution. His latest find? Incidentally, limiting the use of the regardless clause is a far cry from my cup of tea.
A question arises: what are the provinces waiting for to play with him? The fear ? But from what? Canada was forged by the desire for unification and the negotiation of the provinces. We must stop believing that the Constitution is an immutable law and that the federal government has the big end of the stick. It’s just a paper giant.
The Supreme Court of Canada, referring to Quebec’s secession in 1998, was pretty clear: When a province requests constitutional changes, such as nationalizing criminal legislative power or requesting a partition, the federal government has a DUTY to negotiate.
We are in 2023, it is high time to renegotiate this old law from 1867. And who better than an autonomous government to move towards more autonomy?
