INTRODUCTION AND BRIEF DESCRIPTION
The Government of Canada can initiate and conduct legal proceedings related to violations of certain Acts.
SECTION WORDING
126(2) Any proceedings in respect of a contravention of or conspiracy to contravene an Act mentioned in subsection (1), other than this Act, may be instituted at the instance of the Government of Canada and conducted by or on behalf of that Government.
EXPLANATION
Section 126(2) of the Criminal Code of Canada allows the Government of Canada to institute proceedings and conduct them on behalf of the government in cases of contravention or conspiracy to contravene an Act other than the Criminal Code. This section provides the government with the authority to prosecute individuals or entities that have violated specific federal statutes. Acts mentioned in subsection (1) include, but are not limited to, the Competition Act, the Customs Act, and the Copyright Act. The purpose of this provision is to ensure that the government can effectively enforce federal laws and protect the public from harm caused by illegal activities that are contrary to federal legislation. By allowing the government to take legal action, this provision ensures that those who violate federal laws are held accountable for their actions. This section is particularly significant in cases where inter-provincial or international crimes have been committed, as the federal government has jurisdiction over these types of offenses. For example, in cases of cross-border fraud or smuggling, the government could use this provision to prosecute the offenders and bring them to justice. Overall, section 126(2) of the Criminal Code of Canada is an important tool that the government can use to enforce federal laws and protect Canadians from harm caused by illegal activities that violate federal legislation.
COMMENTARY
Section 126(2) of the Criminal Code of Canada grants the Government of Canada the authority to initiate and conduct proceedings in respect of a contravention of or conspiracy to violate any Act listed in subsection (1), other than the Criminal Code itself. This provision plays an important role in promoting compliance with federal laws and regulatory schemes administered by various government agencies. There are a number of Acts that fall within the broad ambit of subsection (1) of Section 126, including the Canada Labour Code, the Canadian Environmental Protection Act, and the Competition Act. These Acts govern a wide range of activities, from environmental protection and workplace safety to antitrust enforcement and trade regulation. Violations of these laws can result in serious consequences for implicated individuals and businesses, including fines, imprisonment, and regulatory sanctions such as revocation of licenses or permits. Despite the potentially grave consequences of violating these Acts, there are many situations in which the government may have difficulty detecting and proving non-compliance. This may be due to the complexity of the regulatory framework, the fact that some violations may occur in the course of legitimate business dealings, or simply because the parties involved take steps to conceal their wrongdoing. In such cases, the government's ability to institute and conduct proceedings under Section 126(2) can be critical in ensuring that justice is served and that the integrity of the regulatory system is maintained. Moreover, the provision is an important mechanism for promoting consistency and fairness in the administration of justice. By vesting the power to prosecute violations of these Acts in the Government of Canada, Section 126(2) helps to ensure that enforcement decisions are not unduly influenced by private interests or other external factors. This helps to promote a level playing field for all actors subject to the regulatory framework, and reduce the risk of preferential treatment or disparate impacts on different segments of society. At the same time, it is important to note that Section 126(2) must be applied with care to ensure that it is not used inappropriately to limit the rights or freedoms of individuals. Any exercise of prosecutorial power must be subject to the principles of natural justice and the rule of law, and must be carried out in a fair and impartial manner. Moreover, there may be situations in which the Government of Canada's prosecutorial discretion should be exercised to decline to initiate or continue proceedings in a given case, such as where it is not in the public interest to do so. Overall, Section 126(2) of the Criminal Code of Canada plays an important role in promoting compliance with federal laws and regulatory schemes, and in ensuring a level playing field for all actors subject to these laws. At the same time, it must be applied with care and in accordance with the principles of natural justice and the rule of law, in order to maintain the fairness and integrity of the regulatory system.
STRATEGY
Section 126(2) of the Criminal Code of Canada provides the Government of Canada with the power to enforce and conduct proceedings in respect of a contravention or conspiracy to contravene other federal Acts, excluding the Criminal Code itself. This provision presents several strategic considerations for prosecuting authorities, defendants, and legal practitioners. Firstly, prosecuting authorities can strategically use Section 126(2) to maintain federal control over the prosecution of offences related to federal statutes, such as environmental protection or immigration laws. By instituting and conducting the proceedings on behalf of the Government of Canada, the authorities can ensure that the prosecution aligns with the government's policies and objectives. Secondly, defendants may perceive proceedings instituted under Section 126(2) as more challenging to defend because of the government's involvement. This perception could encourage them to plea bargain or otherwise settle the case, leading to expedient resolutions. Additionally, given the government's larger resources, defendants may face more significant financial and legal pressure. Thirdly, legal practitioners can strategize using Section 126(2) when defending or prosecuting cases involving federal legislation. Practitioners can leverage the government's resources and expertise, either by seeking guidance or consulting with government attorneys on legal issues. This collaboration can enhance the effectiveness of the case presented in court. As for strategies that could be employed when dealing with Section 126(2) of the Criminal Code, several approaches can be considered. From the prosecuting authorities' perspective, they can carefully select the offences they wish to prosecute under federal legislation to ensure consistency with government policy. They could also seek to collaborate with other federal agencies enforcing the same legislation to effectively pool resources. For the defendants, they may consider challenging the constitutionality of Section 126(2) of the Criminal Code, arguing that it infringes on their right to a fair trial. They could also attempt to challenge the government's jurisdiction over an alleged offence. To do this, the defendants could seek guidance or representation from a specialized criminal defence lawyer who has expertise in defending against government prosecutions. Lastly, from a legal practitioner's perspective, collaboration with the government could be fruitful. Practitioners could communicate with the government to seek their expertise or guidance on legal issues and potential prosecution strategies. This collaboration could result in a more effective litigation strategy, with a better likelihood of success. In conclusion, Section 126(2) of the Criminal Code of Canada is a strategic provision that enables the government to control and prosecute contraventions of federal legislation. It presents some unique considerations for prosecutors, defendants, and legal practitioners, each with its potential strategic implications. Strategic options range from supportive collaboration to legal challenges to the provision's constitutionality.