Bylawpedia
Quasi-Criminal Proceedings
The term 'quasi-criminal' is used to apply to laws and procedures which are not technically criminal but have similarities to laws and procedures of that nature (Fulcrum Law Corporation, n.d.; Law Insider, n.d.). For example, the Constitution of Canada reserves criminal law to the jurisdiction of the federal government. This means that, in a strict legal sense, any law that is not made by the federal government is not a criminal law (Pringle, 2012). However, despite this, there are many non-federal laws which have penalties and processes that resemble criminal laws and therefore can be described as quasi-criminal. Even some federal laws can be considered quasi-criminal. This is because they do not deal with traditional criminal topics, but rather seek to establish regulatory rules to deal with matters such as the environment, food and drug safety or other matters, but they still resemble criminal laws (Damien Frost & Associates LLP, n.d.).
One might think of laws as being placed on a continuum, with 'true' criminal laws at one end, completely non-criminal laws at the other end and 'quasi-criminal' laws somewhere in the middle. Of course, this raises the question as to how one determines where to place a law on this spectrum. Well, in a number of cases, Canadian courts have considered what makes a law skew further towards the criminal or quasi-criminal end of the spectrum. They have found that the more punitive traits that a law has, the more likely it will be categorized as criminal or quasi-criminal.
If imprisonment is a possible penalty, then a law will always be considered criminal or quasi-criminal. Additionally, if heavy fines are possible, this is an indicator that the law could be categorized as such[1]. However, it is not just the penalties imposed by a law that determine whether it is criminal or quasi-criminal. A partial list of other factors which may be considered include whether or not terms such as 'accused', 'guilt' and 'prosecution' are used, and whether persons alleged to have broken the law are tried and punished in a criminal court (Department of Justice Canada, 2022; Guindon v. Canada, 2015, paras 76-77).
Violations of local government bylaws, and the processes used to impose penalties for those violations, are often considered to be quasi-criminal in Canada. This is also the case in British Columbia, where the following quasi-criminal proceedings are available for dealing with violations of local government bylaws:
Prosecution by long form information
Issuance of a municipal ticket information
Some other measures used to enforce local government bylaws, such as bylaw notices, civil proceedings and direct enforcement, do not qualify as quasi-criminal though. Instead, bylaw notices and direct enforcement are administrative enforcement measures and civil proceedings are, as the name would suggest, civil in nature.
One of the reasons that it matters whether a law, and its penalties and processes, are classified as quasi-criminal or not is that it impacts the legal rights of persons who have violated, or are alleged to have violated, that law. Under the Canadian Charter of Rights of Freedoms, which is a part of the Constitution of Canada, persons who are charged with an 'offence' have certain rights; examples being the right to a trial in a traditional court, to be tried in a reasonable time, to be presumed innocent, etc. (The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, s. 11). However, the courts have ruled that only violations of law that are criminal or quasi-criminal shall be considered an 'offence.'
When it comes to the enforcement of local government bylaws, this means that the only time a person alleged to have violated such a bylaw will have a constitutionally guaranteed right to the legal rights referred to in Section 11 of the Charter will be if the person is dealt with by prosecution by long form information or the issuance of a municipal ticket information. Persons who are dealt with through other methods, such as a bylaw notice, will not be entitled to those Section 11 protections under the Charter (Lundquist v. Central Kootenay (Regional District), 2019, paras 61-64).
Still, even if a law or enforcement process is not quasi-criminal and therefore not covered by Section 11 of the Charter, it does not mean that there are no protections available for persons accused of violating bylaws in those circumstances. The principles of procedural fairness would apply to all forms of enforcement action, and there may be additional protections available under other provisions of constitutional law, statutory law or common law.
END NOTES:
[1] Although the courts have found that a heavy fine does not always automatically make a law criminal or quasi-criminal. The courts will look to see whether the fine is punitive or not. That is to say, is it more than strictly necessary for regulatory purposes; i.e. to encourage good behaviour or deter bad behaviour. If a fine is more than necessary for a regulatory purpose then it can become punitive and thus criminal (Guindon v. Canada, 2015, paras 76-77).
REFERENCES:
Bayda, A. (n.d.). What does proof on a balance of probabilities mean? Bayda Disability Law Firm. Retrieved February 27, 2024 from https://www.disabilitylaw.ca/about/proof-on-balance-of-probabilities
Damien Frost & Associates LLP. (n.d.). Regulatory & Quasi-Criminal Offences Lawyer. Damien Frost & Associates LLP. Retrieved on March 12 from https://www.damienfrost.ca/regulatory-quasi-criminal-offences-lawyer/
Department of Justice Canada. (2022). Section 11 - General: Legal rights apply to those "charged with an offence". In Charterpedia. https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art11.html
Fulcrum Law Corporation. (n.d.) What is Quasi-criminal? Fulcrum Law. Retrieved March 3, 2024 from https://www.fulcrumlaw.ca/law-dictionary/quasi-criminal
Government of British Columbia. (2022, December 7). Local government bylaw notices. Province of British Columbia. https://www2.gov.bc.ca/gov/content/governments/local-governments/governance-powers/bylaws/bylaw-enforcement/bylaw-notices
Guindon v. Canada, 2015 SCC 41 (CanLII), [2015] 3 SCR 3. https://canlii.ca/t/gkfb4
Law Insider Inc. (n.d.). Quasi-criminal proceeding. In Law Insider dictionary. Retrieved March 3, 2024 from https://www.lawinsider.com/dictionary/quasi-criminal-proceeding
Lundquist v Central Kootenay (Regional District), 2019 BCSC 1303 (CanLII), paras. 61-64. https://canlii.ca/t/j1tsq#par61.
Pringle, A. (2012). Criminal Law. In The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/criminal-law
The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11. https://canlii.ca/t/ldsx