The distinction between criminal and administrative wrongdoing plays a key role in Canadian public law. Though it functions somewhat differently across domains, the upshot is the same: the state is presumptively entitled, as a principle of statutory and constitutional interpretation, to more favourable procedures for establishing administrative wrongdoing than criminal offending. Conversely, people accused of administrative infractions are presumptively entitled to less protection against state power in the investigative and adjudicative process than those charged with crimes (or in many cases, regulatory offences).
The criminal-administrative distinction has a long pedigree, but has taken on heightened importance since the Charter. The entrenchment of the Charter’s “legal rights” provisions emboldened lawyers to claim the same procedural protections for persons accused of non-criminal wrongdoing that statute and common law had typically (but not universally) provided to criminal defendants. With few exceptions, these claims have failed. Despite long-standing criticism of its doctrinal coherence and policy justifications, the Supreme Court of Canada has repeatedly confirmed the distinction’s vitality and applied it to deny Charter challenges by persons deemed to be operating in the administrative sphere. The Court has been far more willing, in contrast, to find Charter violations in the criminal context.
""Chartering" in the Shadow of Lochner: Guindon, Goodwin and the Criminal-Administrative Distinction at the Supreme Court of Canada."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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