A.G. (Can.) v. Can. Nat. Transportation, Ltd.

A.G. (Can.) v. Can. Nat. Transportation, Ltd.
Collection
Supreme Court Judgments
Date
1983-10-13
Report
[1983] 2 SCR 206
Case number
16998
Judges
Laskin, Bora; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Lamer, Antonio
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 16998
Decision Content
SUPREME COURT OF CANADA
A.G. (Can.) v. Can. Nat. Transportation, Ltd., [1983] 2 S.C.R. 206
Date: 1983-10-13
The Attorney General of Canada Appellant; and
Canadian National Transportation, Limited, Canadian National Railway Company Respondents;
and between
The Attorney General of Canada Appellant; and
Canadian Pacific Transport Company Limited and Kenneth G. Paulley Respondents;
and
The Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for New Brunswick, the Attorney General of British Columbia, the Attorney General for Saskatchewan, the Attorney General for Alberta Interveners.
File No.: 16998.
1982: September 23 and 24; 1983: October 13.
Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, McIntyre and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA
Constitutional law — Criminal law — Administra­tion of justice — Charge under s. 32(1)(c) of Combines Investigation Act — Proceedings conducted by counsel authorized by federal Attorney General — Prohibition sought to prevent Provincial Court from proceeding while prosecution conducted by federal Attorney Gener­al — Whether or not s. 32(1)(c) of the Combines Investigation Act depends on the federal criminal law power (s. 91(27) of the Constitution Act) — If so, whether or not Parliament competent to authorize the federal Attorney General or his agents to prefer indict­ments and conduct proceedings — Constitution Act, 1867, ss. 91(27) , 92(14) — Criminal Code, R.S.C. 1970, c. C-34, s. 2 — Interpretation Act, R.S.C. 1970, c. I-23, s. 27(2) — Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 15(2), 32(1)(c). Respondents and others were charged with unlawful conspiracy to lessen competition in interprovincial transport under s. 32(1)(c) of the Combines Investigation Act and conduct of the proceedings was given to counsel authorized by the Attorney General of Canada. Parlia­ment had given prosecuting authority under the Crimi­nal Code to the provincial authorities and had limited federal prosecutors to prosecuting proceeding instituted at the suit of the Government of Canada and dealing with a violation or conspiracy to violate any federal Act or regulation other than the Criminal Code.
Held: The appeal should be allowed.
Per Laskin C.J. and Ritchie, Estey and McIntyre JJ,: The federal Attorney General, even assuming that the Combines Investigation Act rest only on the criminal law power is entitled to prosecute under the Act and may enforce federal criminal legislation without provin­cial consent. Provincial prosecutorial power rested only on the abstention of the federal authorities from inter­vening in the prosecution of federal offences.
Section 92(14) does not embrace prosecutorial au­thority respecting the federal criminal law and does not diminish the ex facie impact of s. 91(27) , which includes procedure in criminal matters. Although s. 92(14) grants jurisdiction over the administration of justice, it narrows the scope of the s. 91 criminal law power only with respect to "the Constitution, Maintenance, and Organization of Provincial Courts ... of Criminal jurisdiction" and could not be construed as including jurisdiction over the conduct of criminal prosecutions. Fur­ther, the general administration of justice power cannot be preferred over the special criminal law and procedure power; neither the language of s. 92(14), nor logic, would support such a construction. The practice of provincial prosecution continued as a practical accom­modation in the post-Confederation period. The authori­ties indicated that this practical accommodation cast no doubt on the federal authority to invest and regulate the provincial prosecutorial power to enforce the federal criminal law. Section 92(14) was a grant of legislative power. If it encompassed authority over criminal pros­ecutions, federal legislation conferring prosecutorial power would be ultra vires, and any grant of prosecutorial authority by Parliament but with provin­cial consent would involve an unconstitutional delega­tion of legislative power. Parliament is competent to legislate respecting the prosecution of all federal law offences, without distin­guishing whether or not those offences were dependent on the criminal law power. That the prosecution of a non-Criminal Code offence might oblige resort to the criminal law power does not make the offence a Crimi­nal Code offence. Parliament can view the wide criminal law power disjunctively—as establishing offences and as prescribing penalties. Parliament did so here, by vesting prosecutorial authority in the federal Attorney General under s. 2 of the Criminal Code when it referred to non-Criminal Code offences, leaving the question of penal liability dependent on what is prescribed with respect to such offences.
Per Dickson J.: Section 32(1)(c) of the Combines Investigation Act can be upheld as valid federal legisla­tion under both the criminal law power and the trade and commerce power. The federal trade and commerce power in s. 91(2) cannot be read in a literal sense. It is narrowed by a subtraction of provincial regulatory competence under s. 92(13). The federal power includes arrangements with regard to international and interpro­vincial trade and the general regulation of trade affect­ing the whole Dominion. Regulation of a single trade or business cannot be a question of general interest throughout the Dominion so as to be supportable under the "general" power in s. 91(2). Such regulation is at the heart of the local autonomy envisaged by the Con­stitution Act, 1867. A different situation obtains when what is at issue is general legislation aimed at the economy as a single integrated national unit rather than as a collection of separate local enterprises. Among the indicia for a valid exercise of the general trade and commerce power are the presence of a national regulato­ry scheme, the oversight of a regulatory agency and a concern with trade in general. Even stronger indications would be that the provinces were jointly or severally incapable of passing such an enactment and that failure to include one or more provinces or localities would jeopardize successful operation in other parts of the country.
When read in the context of s. 32 as a whole, of Part V of the Combines Investigation Act and of the entire Act, s. 32(1)(c) appears not as an isolated provision, but as part of a regulatory scheme. This scheme is one of national scope, general application and is concerned with trade as a whole rather than a single business. The scheme, aimed at the regulation of competition is an example of the genre of legislation that could not practi­cally or constitutionally be enacted by a provincial government.
Since s. 32(1)(c) is valid under both the criminal law and trade and commerce powers there is concurrent federal and provincial prosecutorial authority. Were s. 32(1)(c) supportable solely under the criminal law power, only the provincial Attorney General could valid­ly prosecute. Since the investigative aspect of anti-com­bines enforcement is properly conferred on federal offi­cials and boards, concurrent prosecutorial authority, with its attendant prospect of federal paramountcy does not emperil effective enforcement of s. 32(1)(c), neither does it offend historical tradition or constitutional prece­dent. Accordingly s. 15(2) of the Combines Investiga­tion Act and s. 2 of the Criminal Code, in so far as they refer to prosecutions under the Combines Investigation Act are both intra vires and the Attorney General of Canada has authority under s. 15(2) to conduct the prosecution at issue in this case. To the extent, however, that s. 2 of the Criminal Code grants the Attorney General of Canada authority to initiate and conduct prosecutions resting on offences created solely under the criminal law power, it is ultra vires, since authority with respect to those offences lies exclusively with the province.
Per Beetz and Lamer JJ.: Section 32(1)(c) of the Combines Investigation Act was validly enacted under Parliament's trade and commerce power and therefore its validity did not depend on the criminal law power, whether or not it could also be supported under that power.
R. v. Pelletier (1974), 4 O.R. (2d) 677; R. v. Hauser, [1979] 1 S.C.R. 984, reversing but on other grounds, (1977), 37 C.C.C. (2d) 129; R. v. Hoffman-LaRoche Ltd. (1981), 33 O.R. (2d) 694, 24 C.R. (3d) 193, affirming (1980), 28 O.R. (2d) 164, 14 C.R. (3d) 289; Attorney-General for Ontario v. Attorney-General for Canada (Canada Standard Trade Mark Case), [1937] A.C. 405, affirming Reference re Dominion Trade and Industry Commission Act, [1936] S.C.R. 379; R. v. Pontbriand (1978), 1 C.R. (3d) 97; Re Board of Com­merce Act, 1919, and the Combines and Fair Prices Act, 1919, [1922] 1 A.C. 191, on appeal from (1920), 60 S.C.R. 456; Attorney General of Nova Scotia v. Attor­ney General of Canada, [1937] S.C.R. 403; Citizens Insurance Company of Canada v. Parsons (1881), 7 App. Cas. 96; MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914, considered; Toronto v. Attorney-General for Canada, [1946] A.C. 32; R. v. Lawrence (1878), 43 U.C.Q.B. 164; Ex parte Duncan (1872), 16 L.C.J. 188; 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; Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31; Tennant v. Union Bank of Canada, [1894] A.C. 31; Attorney-General of Ontario v. Attorney-General of Canada (Assignments and Pref­erences case), [1894] A.C. 189; Attorney General of Canada v. C.P.R. and C.N.R., [1958] S.C.R. 285; Nykorak v. Attorney-General of Canada, [1962] S.C.R. 331; Grand Trunk Railway Company of Canada v. Attorney-General of Canada, [1907] A.C. 65; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310; Reference re Section 498A of the Criminal Code, [1936] S.C.R. 363; Attorney-General for British Columbia v. Attorney-General for Canada, [1937] A.C. 368; R. v. Campbell (1965), 58 D.L.R. (2d) 673, affirming (1964), 46 D.L.R. (2d) 83; Goodyear Tire and Rubber Co. v. The Queen, [1956] S.C.R. 303; Jabour v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Lawson v. Interior Tree Fruit and Vegetable Committee, [1931] S.C.R. 357; Bank of Toronto v. Lambe (1887), 12 App. Cas. 575; City of Montreal v. Montreal Street Railway Co. (1912), 1 D.L.R. 681; Reference re Natural Prod­ucts Marketing Act, [1936] S.C.R. 398; Reference re Alberta Statutes, [1938] S.C.R. 100; Reference re Farm Products Marketing Act, [1957] S.C.R. 198; John Deere Plow Co. v. Wharton, [1915] A.C. 330; Toronto Electric Commissioners v. Snider, [1925] A.C. 396, [1925] 2 D.L.R. 5; Attorney-General for Canada v. Attorney-General for Alberta (Insurance Reference), [1916] 1 A.C. 588; Aetna Insurance Co. v. The Queen, [1978] 1 S.C.R. 731; P.G. du Canada v. Miracle Mart Inc., [1982] C.S. 342; Rocois Construction Inc. v. Quebec Ready Mix Inc., [1980] 1 F.C. 184; The King v. Eastern Terminal Elevator Co., [1925] S.C.R. 434, [1925] 3 D.L.R. 1; R. v. Wetmore, [1983] 2 S.C.R. 284, referred to.
APPEAL from a judgment of the Alberta Court of Appeal (1982), 135 D.L.R. (3d) 89, 66 C.C.C. (2d) 241, 27 C.R. (3d) 138, 35 A.R. 132, 18 Alta. L.R. (2d) 233, [1982] 2 W.W.R. 673, allowing an appeal from a judgment of Medhurst J. dismissing an application for an order in the nature of prohi­bition preventing the Provincial Court of Alberta from allowing proceedings to continue. Appeal allowed.
J. J. Robinette, Q.C., and D. H. Cristie, Q.C., for the appellant.
E. C. Chiasson, R. W. Lusk, and P. G. Foy, for the respondents Canadian National Transporta­tion, Limited, and Canadian National Railway Company.
N. D. Mullins, Q.C., and M. M. Szel, for the respondents Canadian Pacific Transport Company Limited and Kenneth G. Paulley.
William Henkel, Q.C., and Nolan D. Steed, for the intervener the Attorney General for Alberta.
John Cavarzan, Q.C., for the intervener the Attorney General for Ontario.
Henri Brun, Lorraine Pilette, and Jean-François Dionne, for the intervener the Attorney General of Quebec.
John H. Evans and Claude Pardons, for the intervener the Attorney General for New Brunswick.
E. R. A. Edwards and Joseph J. Arvay, for the intervener the Attorney General of British Columbia.
James C. MacPherson, for the intervener the Attorney General for Saskatchewan.
The judgment of Laskin C.J. and Ritchie, Estey and McIntyre JJ. was delivered by
THE CHIEF JUSTICE—The issue in this appeal engages the constitutional power of the provincial legislatures to control through their own officers the prosecution in the provincial courts of offences validly created by legislation of the Parliament of Canada. Although the constitutional questions posed in this appeal have a narrower compass by being limited to the preferring of indictments and the conduct of prosecutions under the Combines Investigation Act, R.S.C. 1970, c. C-23, as amended, it became obvious during the course of the argument in this Court that the constitutional issues require a broader and principled canvass of the scope of provincial power under s. 92(14) of the former British North America Act, now the Constitution Act, 1867 , and its relation to the federal power under s. 91(27) .
Section 92(14) gives powers to the provincial Attorneys General in relation to
92. .
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.
Section 91(27) is among the federal powers that are confided to the exclusive legislative authority of Parliament "notwithstanding anything in this Act" and embraces the following:
91….
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
It will be seen in what is said later in these reasons that it is logically, and in practical terms as well, impossible to fasten on s. 92(14) and s. 91(27) without also considering whether s. 92(14), if it has the scope contended for by the provincial legislatures, also extends to other grants of federal power under s. 91, including s. 91(2), being legisla­tive authority in relation to the regulation of trade and commerce, which is implicitly included in the constitutional questions posed in this appeal.
Confining myself for the time being to the par­ticular questions raised in this appeal, they read as follows:
1. Does the constitutional validity of Section 32(1)(c) of the Combines Investigation Act, S.C. 1970, c. C-23, depend upon Section 91(27) of the British North America Act?
2. If so, is it within the competence of the Parliament of Canada to enact legislation as in Section 2 of the Criminal Code, and Section 15(2) of the Combines Investigation Act, to authorize the Attorney General of Canada or his agents to prefer indictments and conduct proceedings in respect of alleged violations of the afore-mentioned provision?
They require fleshing out to show how they arose and I turn to the relevant facts.
II
An officer under the federal Combines Investi­gation Act swore an information against the respondents, charging them and other corporations and individuals with unlawful conspiracy to prevent or lessen unduly competition in the interpro­vincial transportation of general merchandise in shipments weighing up to and including ten thousand pounds from points in Alberta to points in British Columbia, Saskatchewan and Manitoba to points in Alberta. The charge alleged a violation of s. 32(1)(c) of the Combines Investigation Act which is in the following terms:
32. (1) Every one who conspires, combines, agrees or arranges with another person
(c) to prevent, or lessen, unduly, competition in the production, manufacture, purchase, barter, sale, stor­age, rental, transportation or supply of a product, or in the price of insurance upon persons or property, .. .
is guilty of an indictable offence and is liable to impris­onment for five years or a fine of one million dollars or to both.
The conduct of the proceedings was put in the hands of counsel authorized by the Attorney Gen­eral of Canada. Prohibition was thereupon sought by various of those charged with the offence to restrain the Alberta Provincial Court, before which the information was brought, from proceed­ing thereon so long as the prosecution was to be conducted by counsel for the federal Attorney General. Medhurst J. of the Alberta Court of Queen's Bench dismissed the application brought by the respondents herein, Canadian Pacific Transport Company Limited and Kenneth G. Paulley and by Canadian National Transportation, Limited. He held that s. 15(2) of the Combines Investigation Act expressly, if valid, authorized the intended prosecution by or under the federal Attorney General and noted also that s. 27(2) of the Interpretation Act, R.S.C. 1970, c. I-23, made provisions of the Criminal Code of Canada appli­cable equally to all federal statutes unless otherwise provided.
Section 15(2) of the Combines Investigation Act reads as follows:
15....
(2) The Attorney General of Canada may institute and conduct any prosecution or other proceedings under this Act, and for such purposes he may exercise all the powers and functions conferred by the Criminal Code on the attorney general of a province.
The definition of s. 2 (hereinafter referred to as s. 2(2)) of "Attorney General" in the Criminal Code embraces the Attorney General or Solicitor Gener­al of a province and as well federal prosecuting authorities in the following specification:
2. In this Act
"Attorney General" means the Attorney General or Solicitor General of a province in which proceedings to which this Act applies are taken and, with respect to
(a) the Northwest Territories and the Yukon Territo­ry, and
(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 and, except for the purposes of subsections 505(4) and 507(3), includes the lawful deputy of the said Attorney Gen­eral, Solicitor General and Attorney General of Canada;
It was the federal Parliament's decision to give general prosecuting authority under the Criminal Code to the provincial Attorneys General or Solici­tors General and to limit federal prosecutors to the prosecution of proceedings instituted at the suit of the Government of Canada in respect of a viola­tion or conspiracy to violate any federal Act or regulation thereunder other than the Criminal Code.
Medhurst J. considered, inter alia, the judg­ments of the Ontario Court of Appeal in R. v. Pelletier (1974), 4. O.R. (2d) 677, and of the Alberta Court of Appeal and the Supreme Court of Canada in R. v. Hauser, [1979] 1 S.C.R. 984. He concluded that although the Combines Investi­gation Act had previously been considered as validly authorized under the federal criminal law power, amendments in 1975 had enlarged its reach to make it supportable as federal legislation in relation to the regulation of trade and commerce. He adopted the approach taken in that respect by Linden J. in R. v. Hoffman-LaRoche Ltd. (1980), 14 C.R. (3d) 289, and rejected the application for prohibition. I shall return shortly to the judgments in Pelletier, Hauser and Hoffman-LaRoche.
On the appeal to the Alberta Court of Appeal, Prowse J.A., speaking for the Court consisting of himself, Haddad and Laycraft JJ.A., held that s. 32(1)(c) of the Combines Investigation Act does not depend for its validity in whole or in part on the federal trade and commerce power. Indeed, if it was to be viewed as a regulatory scheme and not as criminal law under s. 91(27) it would be ultra vires as beyond federal competence. Viewed as an exercise of the federal criminal law power under s. 91(27) , he concluded that the Hauser case applied to preclude the federal conduct of the prosecution under s. 32(1)(c) of the Combines Investigation Act. He rejected the judgment in Hoffman-LaRoche, being unwilling to see the Combines Investigation Act as a conjoint exercise of federal power in relation to the regulation of trade and commerce as well as in relation to the criminal law. This, however, appeared to be the contrary view both of Linden J. in Hoffman-LaRoche and of Medhurst J. here.
I would add at this point that after leave was given to the Attorney General of Canada to bring the case here, interventions were allowed by the Attorneys General of Alberta, Ontario, Quebec, British Columbia, Saskatchewan, and New Brunswick.
III
Implicit in the first of the two questions raised in this appeal was the contention, pursued by the Attorney General of Canada, that if the Combines Investigation Act, and especially s. 32(1)(c) thereof, was supportable under the federal trade and commerce power, the assertion of exclusive provin­cial prosecutorial authority would be precluded even if (and this was also contested) it was sustainable in relation to the prosecution of criminal offences. I may say that I find it impossible to separate prosecution for offences resting on a vio­lation of valid trade and commerce legislation and those resting on a violation of the federal criminal law. If exclusive provincial authority rests in the latter, it must equally rest in the former. Indeed, counsel for the respondent Canadian National Transportation, Limited was bold enough—and I think he was logically right-to sweep all offences under federal legislation, enacted pursuant to fed­eral enumerated power under s. 91, into the exclu­sive care and authority of provincial prosecuting officers. In short, if the provinces are constitutionally in control of criminal prosecutions, they must equally be in control of other prosecutions resting on violation of federal legislation other than under the criminal law, at least so far as the prosecutions are brought in provincial courts. Any reading of s. 92(14) of the provincial catalogue of powers does not exhibit any special mention, indeed there is no mention, of criminal offences.
I am content, however, to limit my examination of the constitutional submissions in this appeal to the question whether, assuming that the Combines Investigation Act rests only on the criminal law power (as distinguished from a Criminal Code offence, an important distinction in my opinion), the federal Attorney General is not entitled to prosecute offences under the Act and, as was alleged in argument for the respondents and for the intervening provinces, may only intrude to enforce federal criminal legislation by permission or delegation or nomination of a province.
IV
Until the Criminal Code was amended by 1968-69 (Can.), c. 38, s. 2(1), the federal Attorney General, his lawful deputy and the Solicitor Gen­eral were excluded from the general definition of Attorney General in that section, although there are references elsewhere to provisions requiring the federal Attorney General's consent to prosecute, as for example, in ss. 592 and 593 of the Criminal Code, R.S.C. 1906, c. 146. This was not, however, the first time in federal legislation that the federal Attorney General was given prosecutorial author­ity. It was given under the Combines Investigation Act by 1960 (Can.), c. 45, ss. 6, 11, 12 and 16 under which the then Exchequer Court of Canada was given a limited jurisdiction over criminal pros­ecutions under that Act. That jurisdiction is now generalized in s. 15(2) of the present Act which also confers specified jurisdiction on the Federal Court of Canada under s. 29, where patents are allegedly used to restrain trade, or on both the Federal Court of Canada or a provincial superior court of criminal jurisdiction, where injunctive relief is sought against a violation of the prohibition of anti-competitive practices, for example, s. 32(1)(c). There were even earlier instances of federal prosecutorial authority under the federal Domin­ion Trade and Industry Commission Act, 1935 (Can.), c. 59, s. 22. There the Attorney General of Canada was authorized in certain circumstances to institute criminal proceedings for violation of federal laws prohibiting unfair trade practices and this authority was held to be validly conferred: see Reference re Dominion Trade and Industry Com­mission Act, [1936] S.C.R. 379, aff d [1937] A.C. 405.
In an almost contemporaneous case, Attorney-General of Nova Scotia v. Attorney-General of Canada, [1937] S.C.R. 403, the Court was con­cerned with a prosecution brought under the Cus­toms Act and under the Criminal Code and with the disposition of certain fines and costs. The validity of the proceedings which had been instituted by the federal Government was express­ly approved by the Court, although the issue was clouded (as was said in the Pelletier case at p. 689), by Rinfret J.'s reliance on a statement by Chisholm C.J., suggesting that in prosecuting reve­nue laws the federal government acted nominally under the provincial Attorney General. There was an unqualified recognition of federal prosecutorial authority in Toronto v. Attorney-General for Canada, [1946] A.C. 32, involving a right to receive fines imposed by the Ontario Supreme Court for convictions under a combines offence under the Criminal Code. Indeed, the Attorney General of Ontario expressly disavowed any inten­tion to interfere when the combines involved other provinces besides Ontario. The Government of Canada, in the result, was held entitled to receive the fines.
The constitutional question which is raised as a result of the foregoing decisions is whether provin­cial prosecutorial power rested and has rested only on the abstention of the federal authorities from intervening in the prosecution of federal offences. I start at the beginning in the consideration of this question, namely, the initial creation of the Canadian federation in 1867 under the then Brit­ish North America Act.
V
When the Canadian federation came into being, it was obvious that existing laws of the confederat­ing provinces and existing courts, powers and authorities had to be continued subject to being altered in accordance with the distribution of legis­lative power under the federating Act. Section 129 covered the matter in these words.
129. Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act.
Since the Province of Canada was to be sepa­rated into the two provinces of Ontario and Quebec, provision had to be made for maintaining the power and authority of certain executive offi­cers "until the Legislature of Ontario or Quebec otherwise provides", as set out in s. 135. This section, specially tailored to the pre-Confederation Province of Canada, was as follows:
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; and the Commissioner of Agriculture and Public Works shall perform the Duties and Func­tions of the Office of Minister of Agriculture at the passing of this Act imposed by the Law of the Province of Canada, as well as those of the Commissioner of Public Works.
I need only add that there is nothing in this section which overrides or qualifies the governing provi­sions of s. 129.
The Parliament of Canada moved, soon after Confederation, to exercise the new federal legisla­tive power conferred upon it under s. 91. One of its early exercises of power was in relation to the substantive criminal law and this was almost coin­cident with a statute, 1869 (Can.), c. 29, respect­ing procedure in criminal matters. The preamble referred to an earlier federal Act which had assimilated, amended and consolidated and extended to all of Canada certain provisions of the statute law of the several provinces respecting certain crimes and offences. It then rehearsed (in the preamble) that in like manner it was expedient to assimilate, amend and consolidate and to extend certain other provisions of the said statute law respecting procedure and other matters not includ­ed in the previous Act. The 1869 Act dealt with the prosecution of indictable offences and it defined indictment widely to include information, inquisition and presentment. Section 28 treated the role of the provincial Attorney General or Solicitor General as coming under the scope of the federal Act. It provided that no bill of indictment for certain specified offences should be presented or found by any grand jury unless, inter alia, the indictment for such offence was preferred by the direction of the Attorney General or Solicitor Gen­eral for the Province or of a Judge of a Court having jurisdiction to give such direction or to try the offence. In this and related legislation, prosecutors or complainants had standing to invoke the criminal law, in broader compass than was later permitted. Some of the late nineteenth century legislation, as for example, The Canada Temperance Act, R.S.C. 1886, c. 106, and The General Inspection Act, R.S.C. 1886, c. 99 provided for prosecutions by federally-appointed inspectors. Other legislation of the period, for example, legislation respecting safety of ships, 1891 (Can.), c. 38, and The Live Stock Shipping Act 1891 (Can.), c. 36, provided for prosecution only upon consent of the federal Minister. An Act of 1890 (Can.), c. 10, respecting Prevention of Disclosure of Official Documents and Information provided for prosecution only with the consent of the Attorney General of Canada or of the province. Penalties for violation of The Bank Act, 1890 (Can.), c. 31, were recoverable and enforceable at the suit of Her Majesty, instituted by the Attorney General of Canada, or the Minister of Finance or the Receiver General. These are merely samples of legislation preceding the enactment of the Criminal Code in 1892 which showed the wide authority exercised by and under federal legislation in matters of criminal procedure or prosecution.
I am not aware that during this period there was any attempt by a province to enact legislation that would limit prosecution for federal criminal offences, let alone any other types of offences, to a provincial Attorney General or prosecutor. Nor did the provinces purport to enact post-Confedera­tion legislation of their own to command prosecutorial authority in respect of federal crimi­nal law offences. Until federal legislation embraced the provincial Attorney General and Solicitor General within the scope of its criminal enactments, those officers exercised their prosecutorial authority pursuant to pre-Confedera­tion legislation as continued under s. 129, which I have previously quoted. The generalized definition of provincial Attor­ney General or Solicitor General appeared in the original Criminal Code, 1892 (Can.), c. 29. Sec­tion 3(b) of the Code was as follows:
3. In this Act the following expressions have the meanings assigned to them in this section unless the context requires otherwise:
(b) The expression "Attorney-General" means the Attorney-General or Solicitor-General of any prov­ince in Canada in which any proceedings are taken under this Act, and, with respect to the Northwest Territories and the district of Keewatin, the Attorney-General of Canada;
This provision had its origin in s. 2 of The Explo­sive Substances Act, R.S.C. 1886, c. 150, which was in these terms:
2. In this Act, unless the context otherwise requires,—
(a) The expression "Attorney General" means the Attorney General of the Province of Canada in which any proceedings are taken under this Act, and, with respect to the North-West Territories and the District of Keewatin, the Attorney General of Canada;
In the revised Criminal Code of 1906, R.S.C. 1906, c. 146, the definition of "Attorney General of Canada" was slightly altered by replacing the earlier term "district of Keewatin" by the term "the Yukon Territory".
This limited reference to the Attorney General of Canada remained unaltered until the Criminal Law Amendment Act, 1968-69, 1968-69 (Can.), c. 38, introduced a major change under s. 2, which I have already quoted. In the meantime, the defini­tion and reference to provincial Attorney General remained the same. It appears that it was this introduction of a generalized prosecutorial author­ity in the Attorney General of Canada that brought about the provincial claim that criminal procedure under s. 91(27) of the then British North America Act did not give legislative author­ity to Parliament against the mandate of s. 92(14) so as to empower the federal Attorney General to prosecute offences engaging the violation of validly enacted federal criminal law.
VI
Language and logic inform constitutional inter­pretation, and they are applicable in considering the alleged reach of s. 92(14) and the allegedly correlative limitation of criminal procedure in s. 91(27) . I find it difficult, indeed impossible, to read s. 92(14) as not only embracing prosecutorial authority respecting the enforcement of federal criminal law but diminishing the ex facie impact of s. 91(27) which includes procedure in criminal matters. As a matter of language, there is nothing in s. 92(14) which embraces prosecutorial author­ity in respect of federal criminal matters. Section 92(14) grants jurisdiction over the administration of justice, including procedure in civil matters and including also the constitution, maintenance and organization of civil and criminal provincial courts. The section thus narrows the scope of the criminal law power under s. 91, but only with respect to what is embraced within "the Constitu­tion, Maintenance, and Organization of Provincial Courts ... of Criminal Jurisdiction". By no stretch of language can these words be construed to include jurisdiction over the conduct of criminal prosecutions. Moreover, as a matter of conjunctive assessment of the two constitutional provisions, the express inclusion of procedure in civil matters in provincial Courts points to an express provincial exclusion of procedure in criminal matters speci­fied in s. 91(27) .
There is, in addition, an attempt here to prefer the general administration of justice over the spe­cial criminal law and procedure, when there is no language in the former to override or even suggest the latter. The respondents and the supporting interveners submit that because s. 92(14) includes the constitution of courts of "criminal jurisdic­tion", the word "criminal" must be imported into the opening words of the section, which must be construed as if they said "the Administration of Civil and Criminal Justice in the Province". However, this is not how the section was drafted; neither logic nor grammar support this construc­tion.
I have not been able to find any recognition in post-Confederation texts, such as Lefroy, Legisla­tive Power in Canada (1897-98), of provincial prosecutorial authority of offences under the fed­eral criminal law. Indeed, such cases as R. v. Lawrence (1878), 43 U.C.Q.B. 164, and Ex parte Duncan (1872), 16 L.C.J. 188, affirm the federal authority not only in relation to criminal law, but in relation to criminal procedure, that is as said in the Duncan case, to punish and to that end to regulate procedure.
It has been urged, however, that there are other post-Confederation cases that recognized an alleged primacy, if not exclusiveness, in provincial authority in respect of prosecutions of federal crimes. I can find nothing in R. v. Bush (1888), 15 O.R. 398, that recognizes provincial primacy or exclusiveness. This case dealt with the appointment of justices of the peace, a matter of the constitution of courts and not with the conduct of prosecutions. Indeed, in referring to s. 92(14), Street J. reserved "procedure in criminal matters". Nothing said in R. v. St. Louis (1897), 1 C.C.C. 141, indicates anything different. At the time the case was heard there was no provision for interposition by the federal Attorney General in what was an ordinary criminal prosecution, obtaining money by false pretences. It was, however, open to him to intervene with the leave of the Court, at least in respect of a matter relating to the Government of Canada. The remarks of Wurtele J. suggesting provincial primacy were merely obiter and, indeed, are difficult to reconcile with the ratio.
It must be remembered, at the risk of undue repetition, that the practice of provincial prosecution was continued after 1867 into post-1867 by virtue of s. 129. It was a practical accommodation to allow this to continue, and the affirmation of this practice under the 1892 Criminal Code and in ensuing years did not, as I read the authorities, cast any doubt on federal authority to invest and regulate provincial prosecutorial power to enforce the federal criminal law. Re Public Inquiries Act (1919), 3 W.W.R. 115, does not disturb this view. One would have expected an attempt by the prov­inces, soon after Confederation, or even later at some point in constitutional evolution, to assert an independent provincial authority to control pros­ecutions of the criminal law. There was none, and there is still none, save for the objection taken to the inclusion of the federal Attorney General in the definition of s. 2.
It must be remembered that s. 92(14) is a grant of legislative power and if it gave the provinces legislative authority over the conduct of criminal prosecutions, then federal legislation conferring prosecutorial authority on either provincial or fed­eral Attorneys General would be ultra vires. It cannot be argued that Parliament confers prosecutorial authority only with the consent of the provinces, for this would involve an unconstitu­tional delegation of legislative power: see Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31. The provincial position appears to blur legislative and executive power and to treat s. 92(14) as if it were a grant of executive power to which the legislative power of Parliament under s. 91(27) was subordinate.
I have examined the