R. v. Hauser

R. v. Hauser
Collection
Supreme Court Judgments
Date
1979-05-01
Report
[1979] 1 SCR 984
Judges
Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Pratte, Yves
On appeal from
Alberta
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
R. v. Hauser, [1979] 1 S.C.R. 984
Date: 1979-05-01
Her Majesty The Queen Appellant;
and
Patrick Arnold Hauser Respondent;
and
The Attorney General of Alberta, The Attorney General of Ontario, The Attorney General of Quebec, The Attorney General of Nova Scotia, The Attorney General of New Brunswick, The Attorney General of British Columbia, The Attorney General of Prince Edward Island, The Attorney General of Saskatchewan, The Attorney General of Newfoundland Intervenants.
1978: May 29, 30, 31; 1979: May 1.
Present: Martland, Ritchie, Spence, Pigeon, Dickson, Beetz and Pratte JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Constitutional law—Offences under Narcotic Control Act—Indictment preferred by agent of Attorney General of Canada—Prohibition order—Whether s. 2 of Criminal Code, R.S.C. 1970, c. C-34, authorizes Attorney General of Canada or his agent to prosecute offences under Narcotic Control Act, R.S.C. 1970, c. N-1—British North America Act, 1867, ss. 91(27), 92(14).
The respondent was charged by indictment on two counts: 1) of possession of cannabis resin for the purpose of trafficking, 2) of possession of cannabis (marijuana) for the same purpose, contrary to s. 4(2) of the Narcotic Control Act. The indictment was signed by an agent of the Attorney General of Canada. Thereupon respondent moved for prohibition challenging the constitutional validity of para, (b) of the definition of “Attorney General” in s. 2 of the Criminal Code. The application for prohibition was dismissed in first instance but it was allowed by a majority decision in the Appellate Division of the Supreme Court of Alberta.
Leave to appeal to this Court having been granted, the constitutional issue was framed in these terms: Is it within the competence of the Parliament of Canada to enact legislation as in s. 2 of the Criminal Code to authorize the Attorney General of Canada or his agent (1) to prefer indictments for an offence under the Narcotic Control Act, (2) to have the conduct of pro- ceedings instituted at the instance of the Government of Canada in respect of a violation or conspiracy to violate any Act of the Parliament of Canada or regulations made thereunder other than the Criminal Code?
Held (Dickson and Pratte JJ. dissenting): The appeal should be allowed.
Per Martland, Ritchie, Pigeon and Beetz JJ.: As to the interpretation of the definition of “Attorney General”, the effect of this enactment is to make the Attorney General of Canada the “Attorney General” in respect of all criminal proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of this government in respect of an offence or conspiracy pertaining to a statute other than the Criminal Code. This results in the exclusion of the Attorney General of the province from any authority in respect of such proceedings so instituted.
Whatever may be said as to the necessity of limiting the extent of the federal power over criminal procedure so as to preserve provincial jurisdiction over the administration of justice in criminal matters, one must accept, at least, what was conceded by three provinces: unrestricted federal legislative authority over prosecutions for violations or conspiracies for violations of federal enactments which do not depend for their constitutional validity on head 27 of s. 91 (Criminal Law). These provinces justly disclaimed any constitutional power to subject the enforcement of federal statutes to their executive authority except in what may properly be considered as “criminal law”.
As is made abundantly clear by head 29 of s. 91, there can be no doubt as to the existence of federal power to provide for the imposition of penalties for the violation of any federal legislation, entirely apart from the authority over criminal law. That a distinction is to be made, appears clearly from the many cases holding that the criminal law power is really not unlimited, that it cannot be used as a device for any purpose.
As to whether the Narcotic Control Act is to be classified as legislation enacted under the criminal law power, the history of this legislation, as well as its general scheme, shows that it is what the English title calls it: an act for the control of narcotic drugs. The fact that the specific drugs with which this case is concerned are now completely prohibited does not alter the general character of the Act which is legislation for the proper control of narcotic drugs rather than a complete prohibition of such drugs.
The most important consideration for classifying the Narcotic Control Act as legislation enacted under the general residual power is that this is essentially legislation adopted to deal with a genuinely new problem which did not exist at the time of Confederation and clearly cannot be put in the class of “Matters of a merely local or private nature”. The subject-matter of this legislation is thus properly to be dealt with on the same footing as such other new developments as aviation (Re Aeronautics, [1932] A.C. 54) and radio communications (Re Radio Communication, [1932] A.C. 304).
The constitutional question, therefore, should be answered as follows: As to para. 1‑Yes; as to para. 2-Yes, in respect of a violation or conspiracy to violate any Act of the Parliament of Canada or regulations made thereunder the constitutional validity of which does not depend upon head 27 of s. 91 of the British North America Act, no opinion being expressed whether the competence of the Parliament of Canada extends beyond that point.
Miller v. The Queen, [1975] C.A. 358; Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310; Lenoir v. Ritchie (1879), 3 S.C.R. 575; Reference re Dominion Trade and Industry Commission Act, [1936] S.C.R. 379, [1937] A.C. 405; Industrial Acceptance Corporation Ltd. v. The Queen, [1953] 2 S.C.R. 273; Russell v. The Queen (1882), 7 App. Cas. 829; A.G. for Ontario v. Canada Temperance Federation, [1946] A.C. 193; Faber v. The Queen, [1976] 2 S.C.R. 9; Margarine Reference, [1949] S.C.R. 1, referred to.
Per Spence J.: Both parts of the question posed for the Court should be answered in the affirmative. If the legislative field is within the enumerated heads in s. 91, then the final decision as to administrative policy, investigation and prosecution must be in federal hands. Perhaps the Narcotic Control Act is a prime example of this principle. The Act contains much which is purely prohibitive and many provisions creating and providing for the prosecution of offences. But much of the statute also deals with regulation of the trade in drugs, with the importation of them, with the use of them and with the detailed delineation of the various classes thereof. Trade in the drugs both legal and illicit constantly crosses national and provincial boundaries. It was apparent that the regulation of the subject of narcotic drugs, the policy controlling their distribution, the investigation of breaches of the statute or regulations and the institution of prosecution must be carried out by federal officials.
The contention otherwise advanced by counsel for the various provinces, which was based on the provisions of s. 92(14) of the British North America Act, failed. First, s. 91(27) grants to the federal Parliament jurisdiction in “the Procedure in Criminal Matters” and that power is, by virtue of the concluding sentence of s. 91, exclusive to Parliament. Secondly and most important, s. 92(14) is by its very words limited to administration of justice “in the Province”. Those words do not mean the administration of justice in civil matters only for, in the same enumerated head, both “civil” and “criminal” are expressly mentioned and contrasted and it would have been inevitable that the draftsman would have inserted the word “civil” in the phrase “in the Province” if such a limitation were intended. But the words “in the Province” indicate that the legislator was concerned with the operation of the judicial machinery within the confines of the province and not with the vital matter of who should enforce and prosecute breaches of federal statutes.
If the amendment to the definition of “Attorney General” to include, at least, the Attorney General of Canada when dealing with offences other than those under the Criminal Code is properly incidental to valid legislation under s. 91, then it is paramount to anything in s. 92(14). Reference re Dominion Trade and Industry Commission Act, supra, referred to.
Per Dickson and Pratte JJ., dissenting: Section 2(2) of the Code is not simply a law specifying who may prefer indictments. If it were so limited, no difficulty would be experienced. There is no question but that the Attorney General of Canada, if he wishes, like any other person, may prefer indictments and conduct proceedings with respect to offences under federal enactments other than the Criminal Code or, for that matter, under the Code itself, subject of course to the same limitations as those applying to any private prosecutor. The issues in this case, however, were broader and they could be more precisely put by (1) directing attention not to the Attorney General of Canada acting as a private prosecutor in narcotic cases, but to his acting as principal public prosecutor similar to the provincial Attorney General and exercising the same powers of intervention, control and appeal, and (2) directing the inquiry not to the artificial “Code/non-Code” distinction found in s. 2 of the Criminal Code but to the fundamental constitutional distinction between the criminal law power and the other heads of power found in s. 91 of the British North America Act.
In the face of the structure of the Narcotic Control Act and Regulations, the terms of the Single Convention on Narcotic Drugs, 1961, of which Canada is a signato- ry, and the decided cases, the Narcotic Control Act cannot be characterized as being anything other than criminal law in pith and substance. Accepting that the Narcotic Control Act is criminal legislation, it followed from a consideration of the issues in this case that provincial supervisory power is maintained in respect of prosecution of offences under that Act.
Section 2(2) of the Code, properly elucidated and characterized, has the effect, generally speaking, of supplanting the provincial Attorney General by the Attorney General of Canada, at the will of the latter, in the prosecution of any non-Code federal criminal offence. The inescapable conclusion to be drawn from the legislative history, governmental attitudes, and case law is that the supervisory functions of the Attorney General in the administration of criminal justice have been considered to fall to the provinces under s. 92(14), as opposed to the competing federal power under s. 91(27). Broadly speaking, the division of authority could be as follows: (1) The Attorney General of the province would have exclusive authority in respect of provincial penal offences. (2) The Attorney General of Canada would have exclusive authority in respect of federal offences found in statutes, the pith and substance of which is other than criminal law. (3) The Attorney General of the province would have exclusive authority in respect of federal statutes, the pith and substance of which is criminal law.
In the result, the constitutional questions, as restated, should be answered as follows: (1) It is not within the competence of the Parliament of Canada to enact legislation, as in s. 2 of the Criminal Code, to authorize the Attorney General of Canada, or his agent, to institute proceedings, to prefer indictments, and to conduct prosecutions in respect of an offence under the Narcotic Control Act as the “Attorney General” with all the powers of intervention, control and appeal attaching to that office. (2) It is within the competence of the Parliament of Canada to enact legislation, as in s. 2 of the Criminal Code, to authorize the Attorney General of Canada, or his agent, to act as the “Attorney General”, and indeed the only “Attorney General”, in respect of a violation or conspiracy to violate an Act of Parliament enacted under any head of power in s. 91 of the British North America Act, other than head 27 relating to the criminal law power.
R. v. McLeod (1950), 97 C.C.C. 366; Miller v. The Queen (1975), 30 C.R.N.S. 372; R. v. Beaudry (1966), 50 C.R. 1; Re Bradley and The Queen (1975), 35 C.R.N.S. 192; R. v. Pontbriand (1978), 1 C.R. (3d) 97; Di Iorio and Fontaine v. Warden of the Common Jail of Montreal and Brunet, [1978] 1 S.C.R. 152; R. v. Pelletier (1974), 18 C.C.C. (2d) 516; R. v. Dunn, [1977] 5 W.W.R. 454; Re Anti-Inflation Act, [1976] 2 S.C.R. 373; P.E.I. Potato Marketing Board v. H.B. Willis, Inc., [1952] 2 S.C.R. 392; Reference re Validity of the Combines Investigation Act, [1929] S.C.R. 409; Provincial Secretary of the Province of P.E.I v. Egan, [1941] S.C.R. 396; Attorney General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524; Attorney General of Quebec v. Attorney General of Canada, [1945] S.C.R. 600; Attorney General v. Niagara Falls International Bridge Co. (1873), 20 Grant’s Ch. R. 34; R. v. Bush (1888), 15 O.R. 398; R. v. St. Louis (1897), 1 C.C.C. 141; Re Public Inquiries Act, [1919] 3 W.W.R. 115; Re Adoption Act, [1938] S.C.R. 398; Proprietary Articles Trade Association v. Attorney General for Canada, supra; Reference re Dominion Trade and Industry Commission Act, supra; Attorney General for Ontario v. Attorney General for Canada, [1937] A.C. 405; Attorney General of Canada v. Flint (1884), 16. S.C.R. 707; In re Vancini (1904), 34 S.C.R. 621; Valin v. Langlois (1879), 3 S.C.R. 1, 5 App. Cas. 115; Canadian Pacific Wine Co. Ltd. v. Tuley, [1921] 2 A.C. 417; R. v. Smythe, [1971] 2 O.R. 209, aff’d [1971] 2 O.R. 234 and [1971] S.C.R. 680 sub nom. Smythe v. R.; R. v. Collins (1972), 10 C.C.C. (2d) 52, 11 C.C.C. (2d) 40, 13 C.C.C. (2d) 172; Aziz v. R. (1978), 4 C.R. (3d) 299; Re Miller and Thomas and The Queen (1975), 23 C.C.C. (2d) 257; R. v. Hancock and Proulx, [1976] 5 W.W.R. 609; R. v. Pfeffer, [1976] 5 W.W.R. 452; In re McNutt (1912), 47 S.C.R. 259; Simcovitch v. R., [1935] S.C.R. 26; Margarine Reference, supra; Industrial Acceptance Corp. v. The Queen, supra; Re Martin and The Queen (1973), 11 C.C.C. (2d) 224; Beaver v. The Queen, [1957] S.C.R. 531; Dufresne v. The King (1912), 5 D.L.R. 501; Ex p. Wakabayashi, Ex p. Lore Kip, [1928] 3 D.L.R. 226; R. v. Zelensky, [1978] 2 S.C.R. 940; Russell v. The Queen, Supra; Attorney General for Ontario v. Canada Temperance Federation, supra, referred to.
APPEAL by the Attorney General of Canada from an order for prohibition granted by the Supreme Court of Alberta, Appellate Division[1], prohibiting Stevenson D.C.J. or any other judge of the District Court of Alberta from taking further proceedings in relation to an indictment charging the respondent and another with violations of the Narcotic Control Act. Appeal allowed, Dickson and Pratte JJ. dissenting.
J.J. Robinette, Q.C., and D.H. Christie, Q.C., for the appellant.
A. Milton Harradence, Q.C., and T. G Semenuk, for the respondent.
Ross Paisley, Q.C., and W. Henkel, Q.C., for the Attorney General of Alberta.
J.D. Watt, D.W. Mundell, Q.C., and Miss L.E. Weinrib, for the Attorney General of Ontario.
Michel Pothier, Yves Berthiaume and Jacques Fortin, for the Attorney General of Quebec.
Gordon S. Gale and Martin E. Herschorn, for the Attorney General of Nova Scotia.
Hazen Strange, Q.C., for the Attorney General of New Brunswick.
Louis Lindholm, for the Attorney General of British Columbia.
I.W. Bailey, for the Attorney General of Prince Edward Island.
S. Kujawa, Q.C., and K.W. MacKay, for the Attorney General of Saskatchewan.
James A. Nesbitt, Q.C., for the Attorney General of Newfoundland.
The judgment of Martland, Ritchie, Pigeon and Beetz JJ. was delivered by
PIGEON J.—The respondent was charged by indictment on two counts: 1) of possession of cannabis resin for the purpose of trafficking, 2) of possession of cannabis (marijuana) for the same purpose, contrary to s. 4(2) of the Narcotic Control Act. The indictment was signed by an agent of the Attorney General of Canada. Thereupon respondent moved for prohibition challenging the constitutional validity of para. (b) of the definition of “Attorney General” in s. 2 of the Criminal Code. The application for prohibition was dismissed in first instance but it was allowed by a majority decision in the Appellate Division of the Supreme Court of Alberta. On the appeal to this Court, the constitutional question was settled by the Chief Justice upon appellant’s application in these terms:
Is it within the competence of the Parliament of Canada to enact legislation as in Section 2 of the Criminal Code to authorize the Attorney General of Canada or his Agent
(1) to prefer indictments for an offence under the Narcotic Control Act,
(2) to have the conduct of proceedings instituted at the instance of the Government of Canada in respect of a violation or conspiracy to violate any Act of the Parliament of Canada or regulations made thereunder other than the Criminal Code?
The relevant part of the definition in question reads:
“Attorney General” means the Attorney General… of a province in which proceedings to which this Act applies are taken and, with respect to
…
(b) proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a violation of or conspiracy to violate any Act of the Parliament of Canada or a regulation made thereunder other than this Act,
means the Attorney General of Canada…
The Attorneys General of all provinces, except Manitoba, have intervened to support the judgment holding para. (b) invalid. However, the Attorneys General for Ontario, Quebec and British Columbia would restrict the invalidity to proceedings arising under an Act of the Parliament of Canada depending for its constitutional validity upon head 27 (Criminal Law) of s. 91 of the B.N.A. Act.
As to the interpretation of the definition of “Attorney General”, I see no reason to disagree with the view taken by the Quebec Court of Appeal in Miller v. The Queen[2]. I find it clear that the effect of this enactment is to make the Attorney General of Canada the “Attorney General” in respect of all criminal proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of this government in respect of an offence or conspiracy pertaining to a statute other than the Criminal Code. This results in the exclusion of the Attorney General of the province from any authority in respect of such proceedings so instituted.
In Proprietary Articles Trade Association v. Attorney General for Canada[3], Lord Atkin said (at pp. 316-317):
The second principle to be observed judicially was expressed by the Board in 1881, “it will be a wise course… to decide each case which arises as best they can, without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand”: Citizens Insurance Co. of Canada v. Parsons (1881) 7 App. Cas. 96, 109. It was restated in 1914: “The structure of ss. 91 and 92, and the degree to which the connotation of the expressions used overlaps, render it, in their Lordships’ opinion, unwise on this or any other occasion to attempt exhaustive definitions of the meaning and scope of these expressions. Such definitions, in the case of language used under the conditions in which a constitution such as that under consideration was framed, must almost certainly miscarry”: John Deere Plow Co. v. Wharton [1915] A.C. 330, 338…
In accordance with this principle I will endeavour to express an opinion on the constitutional question without going any further than necessary. As worded, it does not put in issue what counsel for the appellant called the “broad proposition”, namely, the assertion of complete federal legislative authority over the conduct of all criminal proceedings rather than only over criminal proceedings in respect of a violation or conspiracy to violate a federal enactment other than the Criminal Code. From a constitutional point of view, the distinction properly should be between enactments founded on the criminal law power and other enactments, as was pointed out on behalf of the three provinces which accept that, in legislating under any other head of power, the federal Parliament can completely provide for prosecutions by federal officials, although they deny such power for the enforcement of criminal law strictly so called. In this connection it should be observed that, while under the B.N.A. Act the division of executive power generally follows the division of legislative authority, there are some exceptions, mainly in respect of judicial appointments. In order to avoid the inconveniences and difficulties of divided judicial jurisdiction, the Canadian constitution provides for one set of courts for the application of all laws federal and provincial, subject only to the federal power of creating additional courts for the better administration of federal laws. The ordinary courts are provincial only in the sense that they are established by the provinces. As Ritchie C.J. said in Valin v. Langlois[4], at p. 20:
They are the Queen’s Courts, bound to take cognizance of and execute all laws, whether enacted by the Dominion Parliament or the Local Legislatures,…
Furthermore, for all the higher degrees of jurisdiction, the power of appointment of the judges has been conferred to the federal executive by s. 96 of the B.N.A. Act, while the appointment of clerks and other officials forms part of the provinces’ executive duties.
With respect to the criminal law an unusual pattern was also adopted. While head 27 of s. 91 gives to the federal legislative authority over
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters,
head 14 of s. 92 gives to the provincial legislatures, not only the “Constitution of Courts of Criminal Jurisdiction”, but all the “Administration of Justice”:
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
That the Administration of Justice includes, to some extent at least, the powers traditionally exercised by the Attorney General and the Solicitor General is apparent from s. 135: 135. Until the Legislature of Ontario or Quebec otherwise provides, all Rights, Powers, Duties, Functions, Responsibilities, or Authorities at the passing of this Act vested in or imposed on the Attorney General, Solicitor General, Secretary and Registrar of the Province of Canada, Minister of Finance, Commissioner of Crown Lands, Commissioner of Public Works, and Minister of Agriculture and Receiver General, by any Law, Statute, or Ordinance of Upper Canada, Lower Canada, or Canada, and not repugnant to this Act, shall be vested in or imposed on any Officer to be appointed by the Lieutenant Governor for the Discharge of the same or any of them;…
In this respect it may be of some interest to see what were the views of the federal government shortly after Confederation. In Lenoir v. Ritchie[5], Fournier J. says (at p. 605):
[TRANSLATION] After Confederation difficulties arose in the provinces of Ontario and Nova Scotia regarding the power of Lieutenant-Governors to appoint Queen’s Counsel. As this question affected the royal prerogative, it was referred by the Privy Council of Canada to the Secretary of State for the Colonies, in order to obtain the opinion of the law officers of the Crown. The Privy Council submission, signed by Sir John Macdonald, after citing subsection 14 of section 92 regarding the organization of the courts, contains the following statement: -
Under this power, the undersigned is of opinion, that the legislature of a province, being charged with the administration of justice and the organization of the Courts, may, by statute, provide for the general conduct of business before those Courts; and may make such provision with respect to the bar, the management of criminal prosecution by counsel, the selection of those Counsel, and the right of pre-audience, as it sees fit. Such enactment must, however, in the opinion of the undersigned, be subject to the exercise of the royal prerogative, which is paramount, and in no way diminished by the terms of the Act of Confederation.
(Underlining added.)
In Reference re Dominion Trade and Industry Commission Act[6], at p. 383, Duff C.J. said for the Court: As to sections 21 and 22, it would appear that authority to enact these provisions is necessarily incidental to the exercise of legislative authority in relation to the criminal offences created by the laws “prohibiting unfair trade practices” validly enacted in such of the statutes enumerated in section 2(h) as may be competent. We do not think it can be said that the authority to provide for the prosecution of criminal offences falls “strictly” within the subject “Criminal law and criminal procedure,”—head 27 of the enumerated heads of section 91; but our view is that the authority to make such provision, and the authority to enact conditions in respect of the institution and the conduct of criminal proceedings is necessarily incidental to the powers given to the Parliament of Canada under head no. 27 (Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310, at 326-7.)
What was said on this point in the Proprietary Articles case was clearly obiter, as appears from the words I am underlining:
If then the legislation in question is authorized under one or other of the heads specifically enumerated in s. 91, it is not to the purpose to say that it affects property and civil rights in the Provinces. Most of the specific subjects in s. 91 do affect property and civil rights but so far as the legislation of Parliament in pith and substance is operating within the enumerated powers there is constitutional authority to interfere with property and civil rights. The same principle would apply to s. 92, head 14, “the administration of justice in the Province,” even if the legislation did, as in the present case it does not, in any way interfere with the administration of justice. Nor is there any ground for suggesting that the Dominion may not employ its own executive officers for the purpose of carrying out legislation which is within its constitutional authority, as it does regularly in the case of revenue officials and other matters which need not be enumerated.
On the appeal from the Dominion Trade and Industry Commission Act Reference the Privy Council left the question open, again holding that on a proper construction of that statute it did not arise. Lord Atkin wrote ([1937] A.C. 405 at p. 416):
…Sect. 22(a) was said to take out of the control of the Law Officers of the Province the conduct of the criminal proceedings referred to in the section. If so, it was said to encroach upon s. 92(14): the Administration of Jus- tice in the Province. A similar objection was made to the latter part of s. 20. The answer in respect of both sections is that the contention is based upon a construction of the section which the words do not bear. Nothing in the section gives either the Attorney‑General for Canada, or the Director of Public Prosecutions any authority other than to commence proceedings in accordance with the law of the Province, and thereafter to give such assistance to the authorities of the Province as is within the existing rights of persons in such case, and as may be acceptable to the authorities…
Whatever may be said as to the necessity of limiting the extent of the federal power over criminal procedure so as to preserve provincial jurisdiction over the administration of justice in criminal matters, it appears to me that one must accept, at least, what is conceded by three provinces: unrestricted federal legislative authority over prosecutions for violations or conspiracies for violations of federal enactments which do not depend for their constitutional validity on head 27 of s. 91 (Criminal Law). It appears to me that these provinces justly disclaim any constitutional power to subject the enforcement of federal statutes to their executive authority except in what may properly be considered as “criminal law”.
There is in s. 91 no counterpart of head 15 of s. 92:
15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
However, as is made abundantly clear by head 29 of s. 91, there can be no doubt as to the existence of federal power to provide for the imposition of penalties for the violation of any federal legislation, entirely apart from the authority over criminal law. That a distinction is to be made, appears clearly from the many cases holding that the criminal law power is really not unlimited, that it cannot be used as a device for any purpose. In Attorney General for Ontario v. Reciprocal Insurers[7], at p. 342, Duff J., as he then was, said speaking for the Privy Council: …it is no longer open to dispute that the Parliament of Canada cannot, by purporting to create penal sanctions under s. 91, head 27, appropriate to itself exclusively a field of jurisdiction in which, apart from such a procedure, it could exert no legal authority, and that if, when examined as a whole, legislation in form criminal is found, in aspects and for purposes exclusively within the Provincial sphere, to deal with matters committed to the Provinces, it cannot be upheld as valid…
I will therefore proceed to consider whether the Narcotic Control Act is to be classified as legislation enacted under the Criminal Law power. I cannot accept as conclusive on this point the statements made in the judgment of this Court in Industrial Acceptance Corporation Limited v. The Queen[8]. This was a private claim and it appears from what Locke J. (dissenting in part) said (at p. 280), that it was “conceded on behalf of the appellant that The Opium and Narcotic Drug Act 1929 is in pith and substance criminal law, within the meaning of that expression in s.-s. 27 of s. 91”. That concession was effective towards the appellant who made it in that case and the Court could decide accordingly, but it would not result in a binding precedent on the point. Furthermore, it really made little difference in the case whether the Act was “criminal law” or not.
Drug abuse did not become a problem in this country during the last century. At the time of Confederation, there was concern only with alcohol. This was treated as a local matter, being dealt with only incidentally in head 9 of s. 92:
9. Shop, Saloon, Tavern, Auctioneer, and other Licenses in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.
When greater control was considered necessary by the federal Parliament, the legislation was not treated as criminal law. As is well known, it was supported under the general power to make laws for the Peace, Order and Good Government of Canada (Russell v. The Queen[9], A.G. for Ontario v. Canada Temperance Federation[10]). The history of the drug control legislation, as well as its general scheme, shows in my view that it is what the English title calls it: an act for the control of narcotic drugs.
The first statute was passed in 1908 (7-8 Edw. VII, c. 50). It prohibited the importation, manufacture and sale of opium for other than medicinal purposes. It was designed to put out of business a few opium merchants in British Columbia who were operating under municipal licences. A more elaborate act was adopted in 1911, the Opium Drug Act (1-2 Geo. V. c. 17). The schedule of this Act listed just four drugs: cocaine, morphine, opium and eucaine. Section 3 prohibited the possession of those drugs for other than scientific or medicinal purposes. The following year, an international convention was signed “for the progressive suppression of the abuse of opium, morphine, cocaine and derivative drugs”. This treaty was executed on behalf of His Majesty as an imperial treaty for Great Britain and many dominions including Canada.
A new act was passed in 1923 (13-14 Geo. V. c. 22). The title of this statute was: An Act to Prohibit the Improper Use of Opium and other Drugs. The schedule listed in addition to the four drugs previously covered: heroin, codeine, and “cannabis indica or hasheesh”. The Act provided for the licensing of the distribution of any drug and prohibited any sale except on medical prescription.
A further international convention concerning dangerous drugs was executed in 1925. This convention included provisions respecting Indian hemp and the resins prepared from it. These stipulations were aimed at preventing the export of those substances to countries which prohibit their use. Canada was directly a party to this convention as well as to a later convention of 1931 and subsequent protocols. On March 30, 1961, Canada signed a new treaty entitled “Single Convention on Narcotic Control 1961”. In this document cannabis and cannabis resin were put in a list of four specially dangerous drugs which includes heroin. That same year, the previously existing Canadian act, including many amendments made from time to time, was replaced by what is now in effect the present Act (1960-61 (Can.), c. 35). The schedule includes a great many drugs. The conditions under which narcotics may be sold, had in possession, or otherwise dealt in, are now determined by regulations. A large number of those drugs are authorized for sale or administration under medical prescription. In fact, a certain number are enumerated in the list of drugs to be supplied at government expense which list was published in the Quebec Official Gazette pursuant to the Quebec Health Insurance Act (December 13, 1978, pp. 6737 to 6982). These include among others, codeine, cocaine, morphine and opium.
It does not appear to me that the fact that the specific drugs with which we are concerned in this case are completely prohibited, alters the general character of the Act which is legislation for the proper control of narcotic drugs rather than a complete prohibition of such drugs. In the preamble of the 1961 Convention one reads:
The Parties,
Concerned with the health and welfare of mankind,
Recognizing that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs for such purposes,
Recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind,
Conscious of their duty to prevent and combat evil,
Considering that effective measures against abuse of narcotic drugs require co‑ordinated and universal action,
Understanding that such universal action calls for international co-operation guided by the same principles and aimed at common objectives,…
In Faber v. The Queen[11], the majority of this Court accepted that the legal character of coroner
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inquests under the Province of Quebec Coroners’ Act was to be determined by a consideration of the general purpose of such inquests, rather than the purpose of the particular inquest under examination. The mere fact that severe penalties are provided for violations cannot of itself stamp out a federal statute as criminal law. Such is the case for most revenue acts which are clearly a class of statutes founded on legislative authority other than head 27. I find it of some significance that in support of the validity of the forfeiture provisions of the Opium and Narcotic Drug Act, 1929, Rand J. said in the Industrial Acceptance case (supra, at p. 277):
The forfeiture of property used in violation of revenue laws has for several centuries been one of the characteristic features of their enforcement and the considerations which early led to its adoption as necessary are not far to seek.
I do not overlook what was said with respect to the distinctive features of criminal law in the Margarine Reference[12]. The Court was concerned in that case to ascertain whether the prohibitory legislation under consideration could be brought within the description of “criminal law”. A negative conclusion was reached on the basis that the purpose of that prohibition was economic, this does not establish that all other prohibitions are “criminal law” and it should not be taken as decisive of the criterions accepted for so characterizing other prohibitions.
In my view, the most important consideration for classifying the Narcotic Control Act as legislation enacted under the general residual federal power, is that this is essentially legislation adopted to deal with a genuinely new problem which did not exist at the time of Confederation and clearly cannot be put in the class of “Matters of a merely local or private nature”. The subject-matter of this legislation is thus properly to be dealt with on the same footing as such other new developments as aviation (Re Aeronautics[13]) and radio communica-
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tions (Re Radio Communication[14]).
I would therefore answer the constitutional question as follows:
As to para. 1: Yes.
As to para. 2: Yes, in respect of a violation or conspiracy to violate any Act of the Parliament of Canada or regulations made thereunder the constitutional validity of which does not depend upon head 27 of s. 91 of the British North America Act, no opinion being expressed whether the competence of the Parliament of Canada extends beyond that point.
I would accordingly allow the appeal, set aside the judgment of the Appellate Division and restore the judgment of Judge W. Stevenson. There should be no costs in any Court.
SPENCE J.—This is an appeal, upon leave granted, by the Attorney General of Canada against a prohibition granted by the Appellate Division of the Supreme Court of Alberta on November 9, 1977. By such order the said Appellate Division prohibited His Honour Judge W.A. Stevenson and any other Judge of the District Court of Alberta from taking any further proceedings upon an indictment proferred by the agent of the Attorney General of Canada charging Patrick Arnold Hauser as follows:
Count #1
…on or about the 23rd day of June, A.D. 1976, at or near Red Deer in the Province of Alberta, in the Judicial District of Red Deer were unlawfully in possession of a Narcotic, to wit: Cannabis resin, for the purpose of trafficking, contrary to Section 4(2) of the Narcotic Control Act.
Count #2
…on or about the 23rd day of June, A.D. 1976, at or near Red Deer in the Province of Alberta, in the Judicial District of Red Deer were unlawfully in possession of a Narcotic, to wit: Cannabis (marihuana) for the purpose of trafficking, contrary to Section 4(2) of the Narcotic Control Act.
An application to quash the said indictment had previously been made to and refused by His Honour Judge Stevenson.
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The Chief Justice of Alberta delivered reasons, concurred in by Lieberman J.A. for granting one prohibition and Morrow J.A. also delivered reasons to the same effect. McDermid J.A., Haddad J.A. concurring, delivered reasons for dismissing the application for prohibition.
After this Court granted leave to appeal, the Chief Justice of Canada fixed the constitut