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Supreme Court of Canada

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-

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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

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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,

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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-

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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

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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

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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

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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

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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.

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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:

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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:

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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-

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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:

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…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]).

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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.

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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 constitutional questions to be decided by this Court as follows:

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?

and ordered notice to be given to the Attorneys General of the provinces.

As a perusal of the questions demonstrates the authority of the Parliament to vest prosecution powers in the Attorney General of Canada in reference to breaches of the Criminal Code is not the subject-matter of the question although that matter may have to be considered on another occasion. The indictment subject to proceedings in the Alberta Courts was concerned with breaches of the Narcotic Control Act and the first question is addressed to just such proceedings while the second is limited to violations of Acts of Parliament other than the Criminal Code.

I commence with what may well be regarded as a trite statement of a fundamental principle of Canadian constitutional law. Federal legislation powers under s. 91 of the British North America Act are conferred upon Parliament exclusively notwithstanding anything in that Act and particularly s. 92 thereof. The imposition of duties by Parliament and the conferring of powers of Parliament upon provincial courts and provincial officials comes from the exercise of federal legislative power and needs no enabling legislation or any

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type of permission from the provinces. I cite but one of many statements to that effect in this Court. Rinfret J. said in Attorney-General for Alberta and Winstanley v. Atlas Lumber Company Limited[15] at p. 100.

But it has long since been decided that, with respect to matters coming within the enumerated heads of sec. 91, the Parliament of Canada may give jurisdiction to provincial courts and regulate proceedings in such courts to the fullest extent.

(The emphasis is my own.)

Acting upon such a power Parliament has, throughout the Criminal Code, granted jurisdiction to various provincial courts and has imposed duties and has conferred powers on various provincial officials including of course the Attorneys General of the provinces. Those provincial courts in exercising such jurisdiction and those Attorneys General and other provincial officials in discharging their duties so imposed and exercising their powers so conferred do so by virtue of the federal legislation enacted under the enumerated head no. 27 of s. 91 of the British North America Act.

It is of course true that prior to Confederation the Attorneys General of the various colonies instituted prosecutions and still continue to do so in much the same fashion. Prior to Confederation, however, the Attorneys General acted under their common law jurisdiction or as directed by the valid legislation of the particular colony. After Confederation they do so as empowered and directed by valid federal legislation. I can see no bar to Parliament, in the discharge of its valid legislative power, providing that as to certain duties or procedures the provincial officials shall not be used exclusively but the power may also be exercised by a federal official who may be the Attorney General of Canada or any investigating or prosecuting agency designated by Parliament.

Indeed it is difficult to understand how much of the federal legislative field could be dealt with efficiently by other methods. Much of the legislation in such fields is in essence regulatory and concerns such typically federal matters as trade

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and commerce, importation and exportation and other like matters. The administration of such fields require decisions of policy and certainly would include the establishment of a policy as to the means of and methods of enforcement. It would be a denial of the basic concept of federalism to permit the provincial authorities to have exclusive control of the enforcement of such legislation and the sole determination as to how and when the legislation should be enforced by institution of prosecution or against whom such prosecution should be instituted. 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 is apparent, in my opinion, 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 is based on the provisions of s. 92(14) of the British North America Act. Such provision reads:

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.

It first must be noted that 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”. I do not contend

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that those words 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 I am of the opinion that 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.

Dealing with the provision of a federal statute permitting the Director of Public Prosecutions, a federal officer whose office had been created by the statute, to institute at the instance of the Attorney General of Canada criminal proceedings for violation of any law prohibiting unfair trade practices, Duff C.J. said in Reference re Dominion Trade and Industry Commission Act[16], at p. 383:

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).

It is this view which I have attempted to express above. In the judgment of the Judicial Committee reported as Attorney General for Ontario v. Attorney General for Canada[17], it would appear, as a result of submissions by counsel representing the Attorney General of Canada, Lord Atkin took a much narrower view of the provision saying at p. 416:

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

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to give such assistance to the authorities of the Province as is within the existing rights of persons…

The provision was found to be intra vires in both Courts. With respect I find my views more in accord with those of Duff C.J. As I have pointed out above 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).

For these reasons, I would answer “yes” to both parts of the question posed for the Court and therefore allow the appeal.

The judgment of Dickson and Pratte JJ. was delivered by

DICKSON J. (dissenting)—Stated in narrow terms, the question raised in these proceedings is whether s. 2 of the Criminal Code, R.S.C. 1970, c. C-34, authorizes the Attorney General of Canada or his agent to prosecute offences under the Narcotic Control Act, R.S.C. 1970, c. N‑1. It is apparent, however, from the amplitude of the factums and the breadth of argument in this Court, that the issues extend far beyond that simple question.

The Attorney General of Canada advances what was referred to by Mr. Robinette as the “broad proposition” that the British North America Act, 1867 gives the conduct of all criminal proceedings to the federal power. The Provinces, who exclusively supervised criminal administration, unchallenged, for over a century prior to a 1968-69 amendment to the Criminal Code, hold a different view.

Prior to 1969, there would seem to have been an arrangement under which provincial Attorneys General, or their agents, prosecuted Criminal Code offences, while the agents of the federal Attorney General prosecuted narcotics and combines offences, but in the name of the provincial Attorneys General. The expansion of the definition of “Attorney General”, operative in 1969, put an

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end to all of that and gave rise to the present constitutional controversy.

The Facts

The facts are not important. The respondent and another were charged with unlawful possession of narcotics for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act. The information was laid by an officer of the Royal Canadian Mounted Police. The indictment was preferred by an agent of the Attorney General of Canada. Before plea, the respondent moved to quash the indictment on the ground that it was preferred by a person without lawful authority and that, consequently, the judge before whom the charges were pending did not have jurisdiction to hear the matter. The judge dismissed the motion. Counsel for the respondent then brought a motion to prohibit further proceedings on the ground that the Attorney General of Canada was without authority to prefer the indictment unless with the consent in writing, or as agent, of the Attorney General of Alberta. It was common ground that the Attorney General of Canada had not obtained the written consent of the Attorney General of Alberta to prefer the indictment. An order of prohibition was made by the Appellate Division of the Supreme Court of Alberta, McDermid and Haddad JJ.A., dissenting.

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 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?

In a limited sense, only the first of these issues is raised by the respondent’s case at this stage.

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All of the provinces, with the exception of Manitoba, have intervened to support the respondent’s position, which would give a negative response to the questions posed.

The Interpretation of s. 2(2) of the Criminal Code

In order to define the real constitutional issue which underlies the present dispute, it is necessary first to analyse carefully the precise meaning and import of the definition of “Attorney General” found in s. 2 of the Criminal Code (referred to hereafter as s. 2(2)). Prior to 1969 the section read:

“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 the Northwest Territories and the Yukon Territory, means the Attorney General of Canada.

As part of the amendments introduced to the Code by 1968-69 (Can.), c.38, s. 2(2) was amended to read:

“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.

The question whether, as a matter of statutory construction, s. 2(2) excludes the provincial Attorney General has been much debated in this Court and in the Courts below. Stripped of unessentials the section reads:

“Attorney General” means the Attorney General… of a province in which proceedings to which this Act; applies are taken and, with respect to

(a) …, and

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(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 word “means” is normally construed as comprehending that which is specifically described or defined, whereas the word “includes” is generally used to enlarge the meaning of the specific words used in the statute in order to embrace something else not specifically stated: Rex v. McLeod[18], at pp. 371-2.

It is contended that the word “and” as used in relation to s. 2(2)(b) must be read as meaning “but”, although this cannot be the case in so far as s. 2(2)(a) is concerned, as the Attorney General of Canada is the one and only Attorney General in respect of the Northwest Territories and the Yukon Territory. Be that as it may, it seems to be the clear intention of Parliament that once the Attorney General of Canada has met the preconditions of s. 2(2)(b), namely, (i) proceedings “instituted at the instance of the Government of Canada”; (ii) “conducted by or on behalf of that Government”; and (iii) “in respect of a violation of or conspiracy to violate any Act of the Parliament of Canada or a regulation made thereunder other than” the Criminal Code, then for that proceeding the provincial Attorney General ceases to be the “Attorney General”. The Attorney General of Canada becomes, in respect of the proceedings in question, the “Attorney General” with all of the powers vested in that office. Even if the final “means” in s. 2(2) is read as “includes”, the inclusion of the Attorney General of Canada leads to the exclusion of the Attorney General of the province in which the proceedings are taken as soon as proceedings are instituted at the instance of the Government of Canada and conducted by or on behalf of that Government, pursuant to s. 2(2)(b).

The phrases “proceedings to which this Act applies” and “in respect of a violation of… any Act of the Parliament of Canada… other than

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this Act” in s. 2(2) draw attention to the distinction between Criminal Code offences and offences under any other federal enactment. By s. 27(2) of the Interpretation Act, R.S.C. 1970, c. I-23:

(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of the Criminal Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.

Thus, the procedural provisions of the Code apply to the whole gamut of federal statutes and regulations and offences thereunder. As has been suggested by Lajoie J.A. in Miller v. The Queen[19], at p. 378, as a simple matter of statutory interpretation, s. 2(2) seems to set forth a clear rule:

[TRANSLATION] (a) when proceedings are instituted in a province pursuant to the Criminal Code, the bill of indictment must be preferred and the proceedings conducted by the Attorney General of that province;

(b) when proceedings are instituted in the Northwest Territories or in the Yukon Territory, “Attorney General” means the Attorney General of Canada;

(c) when proceedings are instituted in a province in respect of a violation of an Act of the Parliament of Canada other than the Criminal Code, the bill of indictment can be preferred, and the proceedings conducted by the Attorney General of the province or by the Attorney General of Canada;

(d) except for the situations provided for in s-s. 505(4) and 507(3), Attorney General of a province or Attorney General of Canada includes their respective lawful deputies.

The neat “Code/non-Code dichotomy found in s. 2(2)(b) may not serve when one comes to constitutional analysis.

The Present Role of the Attorney General in Criminal Proceedings

When we turn to the language of the Criminal Code we find that the terms “prosecutor” and “Attorney General” are both used. “Prosecutor” is defined in s. 2 of the Code as:

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…the Attorney General or, where the Attorney General does not intervene, …the person who institutes proceedings to which this Act applies, and includes counsel acting on behalf of either of them.

Generally speaking, the term “prosecutor” is employed in the procedural provisions of the Code. At the preliminary stages, i.e. election and possible preliminary inquiry, it is the “prosecutor” who acts and that prosecutor need not be the “Attorney General”. The term “Attorney General” appears at a number of crucial stages, notably the preferring of indictments and consenting to the accused’s re-election of mode of trial on indictment as well as staying proceedings or moving for appeals.

The role of the Attorney General in criminal proceedings, as contrasted to the role of the “prosecutor”, can best be defined in terms of three classifications of powers, unique to the Attorney General and his agents, or in some instances to the Attorney General alone.

(1) The Power to Intervene. Under this heading fall two interrelated powers, the entry of a stay of proceedings, and a more general power of intervention. The Attorney General, or counsel instructed by him for the purpose, may direct that proceedings be stayed, whether the Attorney General or a private prosecutor has had the carriage of the prosecution up to that point. The ancient power of nolle prosequi has been given statutory definition in s. 508 of the Code with respect to indictable offences and in s. 732.1 for summary conviction offences. Exercise of the power is outside the control of the court: R. v. Beaudry[20].

The Attorney General may also exercise a broader interventionist power, namely, the takeover of the conduct of proceedings from a private prosecutor, whatever the desires of that private prosecutor: Re Bradley and The Queen[21]. This general power finds expression in the definition of “prosecutor”, quoted earlier, in s. 2 of the Code. Of all the powers of the Attorney General, the power of intervention in criminal proceedings—

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which flows from the Attorney General’s admitted primacy in prosecutorial matters and enforcement of criminal laws in the courts in the name of the Sovereign—is the most striking.

(2) The Power to Prefer Indictments and to Control the Mode of Trial. While the Attorney General has a broad power of intervention in any type of criminal proceeding, he also exercises certain specific powers in the Code in respect of more serious offences, i.e. indictable offences, in order to set the machinery of justice in motion. There are four ways in which an indictment can be preferred: (i) by the Attorney General or his agent, (ii) “by anyone who has the written consent of the Attorney General”, and then two ways without intervention of the Attorney General: (iii) by anyone with the written consent of the judge, with or without grand jury, and (iv) by order of the court. It might be noted that the exceptional power of preferring an indictment in the absence of a preliminary inquiry, or upon the discharge of the accused on preliminary, is reserved to an individual with the written consent of a judge of the court, or to the Attorney General himself. All of the foregoing deals with who may prefer an indictment.

Another set of provisions relates to the control of how the accused is to be tried. Of some importance here is that the role of the Attorney General is restricted to consenting to the mode of trial and does not necessitate the Attorney General, or his agent, performing the function of “prosecutor”. Generally speaking, the accused may exercise an unhindered right of election and a more restricted right of re-election. But all of these rights subsist only upon the non-intervention of the Attorney General. The Attorney General—and only the Attorney General—has the right to override completely the election of the accused, and require the accused to be tried by a judge and jury.

(3) The Power to Control Appeals. Broadly speaking, whatever the nature of the offence, one can characterize the Attorney General’s control over appeals as being exclusive with respect to appeals to the court of appeal in the provinces and to this Court. Subject to the Attorney General’s general power of intervention, the informant and

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his counsel in a summary conviction proceeding may appeal by way of trial de novo or by way of stated case, but once the matter moves beyond the initial level of appeal, the Attorney General’s control becomes exclusive. The Attorney General of Canada is specifically given “the same rights of appeal” as the Attorney General of a province in “proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government”, in indictable and summary conviction matters. Nonetheless, it must be noted that the Attorney General of Canada’s rights of appeal are premised upon his power to institute and conduct proceedings, the precise issue in controversy in the present case. Further, the appeal provisions dealing with the Attorney General of Canada do not state that the Attorney General of Canada becomes the “Attorney General”, only that he has “the same rights of appeal” as his provincial counterparts.

Restatement of the Issues

Now that the definition of “Attorney General” in s. 2 has been examined to determine those situations in which the Attorney General of Canada can become the “Attorney General” and the unique powers of the “Attorney General” have been touched upon, the real constitutional questions in this case can be more clearly delineated. Section 2(2) 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, are broader and they can be more precisely put as follows:

(1) Is it within the competence of the Parliament of Canada to enact legislation as in s. 2(2) of the Criminal Code to authorize the Attorney General of Canada, or his agent, to institute proceedings, to prefer indictments, and to conduct pros-

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ecutions 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) Is it within the competence of the Parliament of Canada to enact legislation as in s. 2(2) of the Criminal Code to authorize the Attorney General of Canada, or his agent, to act as the “Attorney General” in respect of a violation or conspiracy to violate any Act of Parliament enacted under the “criminal law” power (head 91(27)), or an Act of Parliament enacted under any other head of federal power in s. 91 of the British North America Act?

The first question directs attention not to the Attorney General of Canada acting as a private prosecutor in narcotics 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. The second question attempts to direct 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.

It has been argued that as a matter of statutory construction s. 2(2) does not act to exclude the provincial Attorney General, because its effect is to leave him with an exclusive role with respect to Code offences and a partial role with respect to non-Code offences. Accepting arguendo that to be the true construction of s. 2(2), two points of concern should here be emphasized.

First, there are a number of federal offences which rely for their constitutional validity upon s. 91(27), the criminal law power, which are not found in the Criminal Code. That is to say, there are a number of federal non-Code “criminal” offences. The effect of the last clause in s. 2(2), along with the Interpretation Act, is to extend the

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Attorney General of Canada’s potential role as “Attorney General” to all federal offences whether found in the Criminal Code or not. For the purposes of the constitutional question, this has vital implications. If s. 2(2), as it now stands, is found within the powers of the federal government, then it is manifest that there is nothing to stop the federal government from similarly restricting the powers of the provincial Attorney General within the confines of the Criminal Code itself or, indeed, of stripping provincial Attorneys General of all Code powers. That is the “broad proposition” candidly advanced on behalf of the federal Crown in these proceedings. The constitutional issue does not respect the artificial barriers established by terming a piece of legislation “the Criminal Code”, but directs the inquiry to the criminal law power of s. 91(27) of the British North America Act, 1867.

Second, a clear distinction must be drawn between statutory construction and constitutional competence. As a matter of statutory interpretation, s. 2(2) of the Code may have the effect of excluding the provincial Attorneys General only partially. It would be an error, in my view, to conclude from this that partial exclusion of the provincial Attorneys General would be constitutionally acceptable while complete exclusion would be beyond federal power. It cannot properly be said that because exclusion of the provincial Attorney General is only partial, the federal government is not claiming exclusive jurisdiction. If, as the provinces contend, the supervisory role of the Attorney General is exclusively within provincial jurisdiction, then any act, on the part of the federal government to exclude the provincial Attorney General, in whole or in part, would not be within federal constitutional competence.

In allocating the powers and functions of the office of Attorney General in criminal proceedings, the principal task is to construe two of the heads of power found in the British North America Act, 1867:

91(27) The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

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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.

It is the position of the Attorney General of Canada that Parliament, and Parliament alone, has the jurisdiction to legislate with respect to the conduct of criminal proceedings. It is the position of the respondent and the Provinces that the Attorney General’s supervision over criminal proceedings is exclusively within provincial jurisdiction by reason of the Attorney General’s role in the “administration of justice in the province”. The constitutional question is not, therefore, whether the wording of s. 2(2) does, or does not, exclude the Attorney General of the province completely, but the constitutional basis upon which the jurisdiction is claimed.

Perhaps the best judicial statement of the issues in these “Attorney General” cases is to be found in R. v. Pontbriand[22], where Hugessen A.C.J. said, at p. 110:

I readily accept that Parliament, in the exercise of its power to legislate over the procedure in criminal matters, may authorize persons other than the provincial Attorney General to sign indictments. I also accept that in the exercise of the same power Parliament may, as it has, require that for certain crimes or in certain circumstances the trial of an accused shall only take place before a jury. As long as Parliament does not interfere with the provincial Attorney General’s overriding privileges of supervision and control of the process, I see no reason why it should not authorize any federal official or anybody else to prefer an indictment. This is not, however, what Parliament has done in s. 2. Rather what it has purported to do is to create another “Attorney General”, whose powers are in certain circumstances coterminous with those of the provincial Attorney General.

Supports for the Federal Position

Is s. 2(2) to be characterized as “criminal law” or “procedure in criminal matters” or as incidental thereto and, therefore, a valid exercise of federal legislative power, or is it to be characterized as

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“administration of justice within the Province” and, therefore, ultra vires as an encroachment on an exclusive head of provincial power? The import of the federal case is to be found in para. 18 of the factum of the Attorney General of Canada and I cannot do better than to quote it:

18. By whom and in what circumstances proceedings for violations of the criminal law may be instituted, conducted, terminated, appealed, etc., are matters clearly relating to the criminal law and procedure in criminal matters within the meaning of Head 27 of Section 91 of the British North America Act. The authority to make laws in relation to classes of subject must be taken to carry with it the authority to determine the manner in which those laws shall be enforced and of the essence of enforcement is authority to prescribe the necessary rules pertaining to the initiating and conduct of any litigation required for the purposes of enforcement.

In the absence of s. 92(14) I would agree with that submission. It seems reasonable that, unless a contrary intention appears in the British North America Act, authority to make laws in relation to a class of subject should carry with it the authority to enforce those laws. The difficulty facing the federal Crown, however, is that administration of justice is an exclusive provincial head of power and it includes the administration of criminal justice. That was decided in Di Iorio and Fontaine v. The Warden of the Common Jail of Montreal and Brunet[23]. The power to administer criminal justice includes the power of enforcement. That has been demonstrated by a century of experience during which the provinces enforced the criminal laws. And the power of enforcement includes, in my view, the conduct of enforcement proceedings. Parliament has power to make criminal law and to define procedures, but the provinces are empowered under our Constitution to enforce those laws in a manner consistent with those procedures.

A case much relied upon by the federal Crown is Regina v. Pelletier[24]; (application for leave to appeal to this Court refused[25]). In that case, the

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accused was charged with conspiring to traffic in a narcotic contrary to the Narcotic Control Act thereby constituting the offence of conspiracy under the then s. 408 of the Criminal Code. On appeal, the appellant raised the issue as to whether or not the Attorney General of Canada can prosecute in one of the provinces of Canada an accused charged with that offence. In the course of a lengthy judgment, delivered on behalf of the Court, Mr. Justice Estey made the following observations, p. 542:

On the one hand, the Province, under the guise of “administration of justice” or the included authority to “constitute criminal courts”, has the authority to legislate (at least until Parliament expands the Criminal Code prosecutorial functions to exclude the provincial function), with reference to the appointment of a prosecutor in provincial criminal Courts.

On the other hand, Parliament, by reason of the combination of exclusive sovereignty in criminal law and criminal procedure, and by its overriding authority in matters properly related to “Peace, Order and good Government”, has jurisdiction to legislate with reference to the prosecutorial function at least to the extent that a manifest national interest invokes its “Peace, Order and good Government” authority. In that event the inherent and heretofore largely somnambulant executive function lies in support of the enforcement of the Criminal Code by the Attorney General of Canada and his agents.

If I understand correctly the foregoing passages, the right of Parliament “to legislate with reference to the prosecutorial function” is said to be grounded not only upon Parliament’s exclusive sovereignty in criminal law and criminal procedure, but also upon “Peace, Order and good Government” and the “inherent and heretofore largely somnambulant executive function”. The challenge raised by the accused in Pelletier to the status of the Attorney General of Canada, as prosecutor, was resolved against the accused.

The Attorney General of Ontario took no position on the issues raised in the Pelletier proceedings which, Mr. Justice Estey observed, strengthened him in his view:

[Page 1019]

That there should be a right in the Attorney General of Canada to enforce the Criminal Code as well as other federal criminal statutes does not appear to offend the theory underlying our constitutional law nor the practical considerations encountered by the Province in discharging its function in the administration of justice.

In the present proceedings, the circumstances are somewhat different in that nine of the ten provinces forcefully and ably contended for the view that s. 2(2)(b) of the Code did, indeed, offend the theory underlying our constitutional law as well as raising very practical difficulties for the provinces in discharging their respective functions in the administration of justice.

In considering the decision in Pelletier, it should also perhaps be observed as a preliminary matter that an officer in the Department of Justice of Canada, Mr. Duffy, was responsible for the content of the information, and that he represented the Attorney General of Canada at trial, and in the Court of Appeal. Near the beginning of the decision, Mr. Justice Estey noted in the course of dealing with the meaning of s. 2 and the circumstances surrounding the laying of the information, at p. 522:

Thereafter the indictment was preferred before the Grand Jury by Mr. Duffy with the consent of the learned trial Judge pursuant to s. 505(1)(b) of the Code.

As a consequence, as Hugessen A.C.J. said in Pontbriand, p. 105:

It is interesting to note that despite the length and learning of the judgment in Pelletier, all that was said on the constitutional issue was, strictly speaking, obiter dictum. …Where an indictment is preferred with the consent of a judge, the status of the person preferring it becomes irrelevant and it matters not whether he is an agent of the provincial Attorney General, the federal Attorney General, or of neither. It is perhaps for this reason that leave to appeal to the Supreme Court was refused notwithstanding the great importance of the constitutional question raised in the judgment of the court.

Nonetheless, the reasoning of Pelletier has been adopted in a number of other cases, notably R. v.

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Dunn[26].

I would like now to discuss the following matters which were relied upon in Pelletier: (1) Peace, Order and good Government; (2) Inherent Executive Power; (3) Concurrency; and to consider also one further matter (4) Characterization.

(1) Peace, Order and good Government. With respect, I do not believe that the validity of para. (b) of the definition “Attorney-General” in s. 2(2) of the Criminal Code can be buttressed by Parliament’s general authority to legislate with respect to “Peace, Order and good Government”. Recourse may be had to Parliament’s general power in respect of matters of “national concern” or of “national dimension” which are not enumerated in the specific heads of power. Equally, matters enumerated in s. 92 may temporarily reach “emergency” proportions, justifying federal intervention in what are normally matters of provincial jurisdiction. Before it can then be invoked, however, there must exist in Canada at the time a state of national emergency requiring the implementation of extraordinary measures of a temporary nature. Chief Justice Laskin in Re Anti-Inflation Act[27], at p. 426, was of the view that Parliament might be entitled to employ Peace, Order and good Government to act from the “springboard” of its exclusive jurisdiction under some head of s. 91, (in that case, its jurisdiction over monetary policy and trade and commerce). But in situations other than the foregoing, the Peace, Order and good Government power is not available, nor can it be invoked to strengthen a claim under a head of exclusive federal power.

(2) Inherent Executive Power. In my view, an “inherent executive function” cannot be used to extend the ambit of legislative power of either government. Upon Confederation, the Crown was divided—of that, there is no doubt. But in that division, ss. 91 and 92 of the British North America Act redistributed in an exhaustive fashion the legislative functions of a unitary state and the executive functions must have followed, of necessi-

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ty, the distribution of legislative power. Executive power is nurtured by and is dependent upon legislative power. Executive functions, federal and provincial, must be exercised with due regard to, and within the limits prescribed by, ss. 91 and 92 respectively. In short, the issue in this case is not one of executive power, but of legislative competence.

In Pelletier, the proposition was advanced that executive power to enforce the statutes of Parliament, and of the Legislatures, follows upon the legislative authority to enact those statutes. One could not question this as a broad and general statement, but it does little to assist in resolving the issue facing the Court in the present case, namely, which Legislature has authority to enact legislation in relation to the prosecution, conduct, and supervision of criminal proceedings. I am quite prepared to accept the proposition that, in respect of heads of federal power other than head 27, there may be implicit and inherent power residing in the federal executive to enforce the Acts validly enacted by Parliament, such as Revenue, Customs, Fisheries, and Bankruptcy statutes and regulations. The case of P.E.I. Potato Marketing Board v. H.B. Willis, Inc.[28], is a good example of the administration of a non‑criminal federal enactment. Administration provisions were upheld as a valid exercise of federal executive power to administer federal statutes, but the statute there being considered, the Agricultural Products Marketing Act, was not a criminal statute, and so the relationship between s. 91(27) and s. 92(14) of the British North America Act was not in any way engaged. A different situation obtains with respect to s. 91(27) and s. 92(14) because of the specific conferral upon the provinces of the right and responsibility to administer justice, particularly criminal justice. The quarrel here is not over the right of Parliament to enforce its own enactments but rather, and this bears repeated emphasis, the attempt by Parliament to exclude the provinces from the right to supervise criminal prosecutions.

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(3) Concurrency. In Pelletier, the concept of concurrency was accepted. At the beginning of the judgment, the door is opened to this possibility, at p. 523:

At the same time it should be observed that the search for an answer to this question should not be restricted by an assumption that the appointment of a prosecutor in a criminal Court is necessarily the exclusive prerogative or duty of one or the other of the plenary authorities established under the British North America Act, 1867.

It will be observed that the issue is here cast in terms of the power to appoint a prosecutor in a criminal court, not the supervisory powers of the Attorney General. Subsequently, s. 2(2) is characterized in this manner, at p. 530:

for here the Criminal Code provision does not purport to establish exclusivity on the Attorney-General of Canada and thus does not purport “to occupy the field” as against such statutes as the Crown Attorneys Act of Ontario.

With respect, in my view the effect of s. 2(2) is to establish exclusivity on the part of the federal Attorney General in the proceedings which he chooses to enter and, as to those proceedings, he does “occupy the field” as against the provincial Attorney General, and as against Crown Attorneys and all other persons.

Later in Pelletier, at p. 544, the concurrency point is repeated and an inherent difficulty in the interpretation is acknowledged:

It was submitted by the appellant that a finding of concurrent authority to institute and conduct prosecutions under the Criminal Code would lead to confusion and uncertainty in that it is conceivable that one plenary authority might institute a proceeding and the other authority might enter a plea of nolle prosequi. In the same spirit as observed by Street, J., in R. v. Bush (1888), 15 O.R. 398, one should not assume the intervention by one authority in proceedings instituted by the other. Furthermore, that problem can be readily dealt with by the Courts if and when it should ever arise.

With all due respect, it would appear to me that the concept of concurrency is only consistent with the notion that s. 2(2) of the Code simply alters the provisions respecting who may prefer indict-

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ments, and not with the view that the section renders the Attorney General of Canada for the proceeding in question the “Attorney General”, with all the powers attaching thereto, including the entering of a stay of proceedings.

In Di Iorio, reference is made to the “aspect doctrine” at p. 207: “a matter which for some purpose may fall within the scope of the federal power over criminal law and procedure may also fall within the legitimate concern of the provinces as pertaining to the Administration of Justice”; and at pp. 225-6: “Given the ancillary powers of the Parliament of Canada and the interrelated aspects of criminal justice, one is likely to find room for overlapping legislation in this area”. The general principle is accepted but the constitutional conflict engendered by s. 2(2) is too sharp and too complete to make this an appropriate case for an application of the “double-aspect” doctrine. It is difficult to perceive in what “aspect” and for what “purpose” the two governments can differentiate their claims to jurisdiction. Both claim jurisdiction over the powers of the Attorney General in criminal proceedings for the identical aspect and the identical purpose, namely, the prosecution and supervision of criminal offences. Nor is this surprising, since the two levels exercise their power within a divided jurisdiction over a single subject-matter. I agree with the contention of the Attorney General of Saskatchewan that the ancillary doctrine or the aspect doctrine is not a means of overcoming the problems of divided jurisdiction, or of converting divided jurisdiction into fully concurrent or overlapping power.

The aspect doctrine finds its classic statement in the judgment of Duff J. in Reference re Validity of the Combines Investigation Act[29], at p. 413:

[Page 1024]

Matters, however, which in one aspect and for one purpose fall within the jurisdiction of a province over the subjects designated by one or more of the heads of s. 92, may in another aspect and for another purpose, be proper subjects of legislation under s. 91, and in particular under head 27.

The example employed by Duff J. to demonstrate the aspect doctrine was the interrelationship between s. 91(27) and s. 92(13) (Property and Civil Rights).: Most interesting, however, is the lengthy caveat on the preceding page, a passage usually overlooked:

The words of head 27 read in their widest sense would enable Parliament to take notice of conduct in any field of human activity, by prohibiting acts of a given description and declaring such acts to be criminal and punishable as such. But it is obvious that the constitutional autonomy of the provinces would disappear, if it were open to the Dominion to employ its powers under head 27 for the purpose of controlling by such means the conduct of persons charged with responsibility for the working of provincial institutions. It is quite clear also that the same result would follow, if it were competent to Parliament, by the use of those powers, to prescribe and indirectly to enforce rules of conduct, to which the provincial legislatures had not given their sanction, in spheres exclusively allotted to provincial control.

Further, in Provincial Secretary of the Province of P.E.I. v. Egan[30], at p. 401, Duff J. emphasized that “this is a principle that must be applied only with great caution”. In his illuminating article, “Sir Lyman Duff and the Constitution” (1974), 12 O.H.L.J. 261, Mr. Justice Le Dain sums up Duff J.’s view of the “necessarily incidental” doctrine, considered by many to be equivalent to the aspect doctrine, in these terms, at p. 276:

His one qualification was that the doctrine must not be used to destroy the essential nature of that distribution [of jurisdiction]. This would be the case where the doctrine is invoked, not to justify legislation with respect to a truly ancillary matter lying outside the main subject matter of the jurisdiction, but to assume substantially the other half of a divided jurisdiction. He emphasized this distinction in the Montreal Street Railway case by

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contrasting legislation of an ancillary nature in relation to property and civil rights in an area in which Parliament has plenary jurisdiction, such as banking, with legislation in an area of divided jurisdiction, such as transportation undertakings, in which neither half of the main subject-matter of the divided jurisdiction can be considered as ancillary or necessarily incidental to the other.

Here we find the latter situation, one of divided jurisdiction, where s. 91(27) and s. 92(14) explicitly envisage a division of jurisdiction in criminal matters. In my view, neither party can employ the aspect doctrine to encroach upon the other half of the divided jurisdiction.

It should not be thought that the notion of concurrency offers an easy solution to the problem before the Court. Because of the effects of paramountcy, the result of declaring concurrent jurisdiction is, so far as the office of provincial Attorney General is concerned in relation to prosecution of criminal offences, the same as a declaration of exclusive federal power. Whether one speaks in terms of federal power, or of concurrency, the provincial power, being subservient, must give way. There can never be two Attorneys General in respect of the same proceeding. Acceptance of the notion of concurrency would have the effect of removing from the provincial Attorney General the primary right and duty to prosecute in the province.

(4) Characterization. Characterization of para. (b) of the definition of “Attorney General” in the Criminal Code is not difficult. As the Attorney General of British Columbia submits, it is legislation encompassing who can set the criminal law in motion and who can have the carriage of the proceedings once they have been instituted. In my view, the pith and substance of s. 2(2), the dominant characteristic, is the enforcement of the criminal law. The effect of the section is to authorize the Attorney General of Canada, or his agent, to supplant the provincial Attorneys General in instituting proceedings, preferring indictments,

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and conducting proceedings in respect of offences under the Narcotic Control Act, and to deprive the Attorney General of a province from having anything to do with a prosecution once it has been instituted at the instance of the Attorney General of Canada.

The federal position, the “broad proposition” advanced on behalf of the Attorney General of Canada, is that the powers exercised by the provinces in the prosecution of federal offences have been with the acquiescence of, and as a concession from, the federal Parliament, and that Parliament’s jurisdiction over criminal law and procedure carries with it power over the manner of enforcement and prosecution. If it is accepted that the aspect doctrine is inapplicable, then we are left only with this broad proposition. In the end, then, the constitutional question in this case reduces itself to the drawing of a firm line between exclusive federal and provincial jurisdictions or, put differently, the allocation of the subject‑matter in question to one or the other level of government.

The Content of the Competing Powers

Head 27 of s. 91 of the British North America Act empowers Parliament to make substantive laws prohibiting, with penal consequences, acts or omissions considered to be harmful to the State, or to persons or property within the State. The amplitude of the criminal law power, to which the Lord Chancellor referred in speaking of “the criminal law in its widest sense” in Attorney General for Ontario v. The Hamilton Street Railway Company[31], is of necessity attenuated, in respect of the administration of criminal justice, by the exclusive authority conferred upon provincial Legislatures by s. 92(14). Although the point under discussion was whether Parliament had enacted true criminal law and s. 92(14) was not in issue, some limitation upon the federal plenary power under s. 91(27) was recognized by Duff J. in Re Combines Investigation Act, supra, at p. 411:

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Nevertheless, some limitation upon the general words of s. 91(27) is necessarily implied by (1) the fact itself that co-ordinate exclusive authority in respect of a variety of subjects is vested in the provincial legislatures, and executive authority of the same order in the provincial governments, and (2) character of the enactments of s. 92. This has been recognized in a series of cases, the Dominion License Acts Reference; the Board of Commerce case; Attorney General for Ontario v. Reciprocal Insurers; Attorney General for Canada v. Attorney General for Alberta; Toronto Electric Commissioners v. Snider.

Nor can “criminal procedure” be equated with “criminal justice” or defined in such a way as to drain of vitality the plenary power of s. 92(14): Di Iorio and Fontaine v. The Warden of the Common Jail of Montreal and Brunet, supra.

In Attorney General of Quebec v. Attorney General of Canada[32], an appeal was taken to this Court from a judgment of the Quebec Courts, which had held that s. 770 of the then Criminal Code was intra vires the Parliament of Canada. In discussing the ambit of the “criminal procedure” aspect of s. 91(27), Taschereau J., Rinfret C.J.C. concurring, observed at p. 603:

The power given to the federal parliament to legislate in criminal law and criminal procedure, is the power to determine what shall or what shall not be “criminal”, and to determine the steps to be taken in prosecutions and other criminal proceedings before the courts.

Criminal law is concerned with the statement of the legal principles which constitute the substance of the law. The criminal law gives or defines rights and obligations. Criminal procedure, on the other hand, in its broadest sense, comprehends the mode of proceeding by which those rights and obligations are enforced. In a more narrow sense “procedure” means the machinery of the Court by which the formal steps in a judicial proceeding are regulated. If one is to give meaning to, and reconcile, the federal power to legislate in respect of criminal procedure with the provincial power to administer justice, the former must, I think, be taken as

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limited to the right to define the form or manner of conducting criminal prosecutions, i.e. the rules according to which the substantive law is administered. The latter, the administration of justice, embodies the right to direct the judicial process by which are enforced, in accordance with prescribed federal procedures, the rights and duties recognized by validly enacted federal criminal law. It includes control over putting the machinery of the criminal courts in motion and taking the requisite steps to prosecute those accused of crime, as well as discretion exercised in terminating criminal process.

Historical Perspective

As suggested in Di Iorio and Fontaine v. The Warden of the Common Jail of the City of Montreal and Brunet, at p. 206, jurisdiction in the strict sense cannot come through consent or laches: “however, history and governmental attitudes can be helpful guides to interpretation”. To what extent has the federal Parliament exercised its purported “criminal procedure” jurisdiction over the role of the Attorney General since Confederation? And to what extent have federal legislators invoked any claims to that jurisdiction?

The powers and functions of the Attorneys General of the provinces were largely patterned upon those of the English Attorney General, one of whose prime functions was the initiation and conduct of criminal prosecutions. As the chief legal representative of the Crown, the holder of that office was vested with a number of wide common law powers, the origin of many of which are lost in history. Among the more important were (i) nolle prosequi, the effect of which was to stay proceedings on an indictment, though the accused was not discharged; (ii) consent to prosecution, a discretionary right exercisable by the Attorney General with respect to certain types of offences, having regard to the public interest and serving as a curb on the almost untrammelled right of the private individual to lay informations, prefer indictments and prosecute; (iii) Ex Officio Informations, a right which fell into desuetude, but in earlier times

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served as a tool enabling the King to by-pass the procedures of presentment and indictment before the grand jury and put the accused directly on trial; (iv) Writs of Error, a limited right of appeal for manifest error upon the record of the proceedings at trial which required the discretionary grant of the Attorney General’s fiat in order to proceed.

Thus, in nineteenth century England, the Attorney General was the sole public officer with responsibility in criminal matters. It was only in 1879, with the passage of the Prosecution of Offences Act, 1879, 42 & 43 Vic., c. 22, that another public officer, the Director of Public Prosecutions, was created, acting under the direction of the Attorney General. The Attorneys General in Canada, implicitly and sometimes explicitly, drew upon the English model to define their powers. Until the Criminal Code of 1892 at least, the provincial Attorney General’s powers were largely derived from common law.

One of the difficulties in any inquiry directed to the pre-Confederation practice of the Attorneys General in the various provinces is the wide variation, then as now, in the practices and procedures adopted in the day-to-day administration of criminal justice. In Canada, as in nineteenth century England, a wide ambit was given to the private prosecutor and “official” prosecutions operated within the framework of private prosecutions. The factum filed in these proceedings by the Attorney General of New Brunswick indicates that in that province before Confederation, the Attorney General, or counsel appointed by him, took charge of a number of prosecutions “upon every occasion where Public Officers are concerned or any act done which may be considered a crime or misdemeanour of any degree”.

A more structured system of supervision and control over criminal proceedings is found to exist in Upper Canada. There, a resident counsel was appointed in each county, who took the office of County Attorney and was appointed by the Governor. His duties were assigned by statute, An Act for the Appointment of County Attorneys, and for other purposes, in relation to the Local Administration for Justice in Upper Canada, S.U.C. 1857,

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c. 59, s. V. The catalogue of duties of the County Attorney gives an indication of what was understood by the words “local administration of justice” at the time of Confederation. His duties may be summarized: (i) to receive all informations and other documents connected with criminal charges, transmitted to him by Magistrates and Coroners of the county in order to assure prosecutions at the Assizes and Quarter Sessions; (ii) to institute and conduct on the part of the Crown prosecutions for felonies and misdemeanours at the Court of Quarter Sessions, excepting the right of entering a nolle prosequi, and generally to attend to all criminal business at such court; (iii) to watch over the conduct of cases in this latter court and “without unnecessarily interfering with private individuals, who wish in such cases to prosecute, to assume wholly the conduct of the case where justice towards the accused seems to demand his interposition”. All of this took place against the broad backdrop of the English system of criminal law in Canada. The described duties of the County Attorney in Upper Canada suggest a closer connection between the “official” prosecutor and the local machinery of investigation and administration of justice than existed in England at the time.

In considering the impact of Confederation upon the division of legislative jurisdiction with respect to criminal justice, one cannot ignore the speech of Lord Carnarvon in the House of Lords (reprinted at pp. 76-77 of Annex 4 to W.F. O’Connor’s Report to the Speaker of the Senate of Canada relating to “The Enactment of the British North America Act, 1867, any lack of consonance between its terms and judicial construction of them and cognate matters”. (1939)). Lord Carnarvon stated:

To the Central Parliament will also be assigned the enactment of Criminal Law. The administration of it, indeed, is vested in the local authorities; but the power of general legislation is very properly reserved for the Central Parliament. And in this I cannot but note a wise departure from the system pursued in the United States, where each State is competent to deal as it may with its criminal code, and where an offence may be visited with one penalty in the State of New York and with another in the State of Virginia. The system here proposed is, I believe, a better and a safer one; and I trust that before

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long the Criminal Law of the four Provinces may be assimilated—and assimilated, I will add, upon the basis of English procedure.

The prime emphasis throughout is upon uniform substantive offences, uniform punishments and uniform procedures, or as Lord Carnarvon put it, “the power of general legislation”.

The federal Parliament moved fairly quickly after Confederation to bring about some semblance of uniformity in procedure, with the passage in 1869 of a series of Acts, largely patterned upon the procedure of the united Canadas: the Criminal Procedure Act, c. 29; the Summary Trial Act, c. 32; the Juvenile Offenders’ Act, c. 33; the Juvenile Offenders’ Act (Province of Quebec), c. 34; the Speedy Trial Act (Ontario and Quebec), c. 35; and the General Repeal Act, c. 36. These Acts did little to alter the general conformity of Canadian criminal procedure to that of England.

The General Repeal Act of 1869 repealed a series of former Acts of the Provinces, but in s. 1 stated that “such repeal shall not extend to matters relating solely to subjects as to which the Provincial Legislatures have, under The British North America Act, 1867’, exclusive powers of legislation”. One of the Acts not to be found in Schedule B, listing those repealed, is the County Attorneys Act of Upper Canada.

The Department of Justice Act, 1868 (Can.), c. 39, displays equal constitutional sensitivity in creating a federal Minister of Justice, stating in s. 2:

He shall have the superintendence of all matters connected with the administration of Justice in Canada, not within the jurisdiction of the Governments of the Provinces composing the same.

Section 3 defines the duties of the Minister as Attorney General of Canada, including “the regulation and conduct of all litigation for or against

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the Crown or any Public Department”, certainly not the language of criminal proceedings.

The Attorney General of British Columbia submits that in enacting ss. 91(27) and 92(14) of the British North America Act, an attempt was made to achieve a “subtle balance” between national and local needs in the area of crime prevention and control. Constitutional authority to enact substantive criminal laws—the determination of what was a crime and how it should be punished—was vested in the federal government, but the administration of the criminal law remained in the local or provincial hands where it could be more flexibly administered. This submission is well-supported by the evidence. The position of decentralized control, which had obtained in England from time immemorial, and in Canada prior to Confederation, with local administration of justice, local police forces, local juries, and local prosecutors, was perpetuated and carried forward into the Constitution through s. 92(14). The administration of criminal justice was to be kept in local hands and out of the control of the central government.

It would seem to have been the view of the Fathers of Confederation that the countless decisions to be made in the course of administering criminal justice could best be made at the local level. Such decisions were made locally at the time of Confederation, and thereafter until 1969, by provincial Attorneys General and their agents in discharge of their significant constitutional responsibility. There is, I think, a certain unity and cohesion between the three aspects of law enforcement, namely, investigation, policing, and prosecution, which would be imperilled if the investigatory function were discharged at one level of government and the prosecutorial function at another level.

The enactment of s. 2(2) of the Criminal Code may be viewed as not only an attempt to intrude into matters traditionally reserved for the provincial Attorneys General, but also as a breach of the bargain struck at the time of Confederation. No practical reasons have been advanced for setting

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aside the practices and customs of one hundred years. It has not been suggested that authority to pass s. 2(2) is requisite to prevent the scheme of the Criminal Code or of non‑Code “criminal” statutes from being frustrated or defeated. From the material before us, it would not appear that the arrangement existing between the federal and provincial authorities, to which I have referred earlier, had created any difficulties over the years. This, of course, does not decide the matter because we are dealing here essentially with constitutional power and not with the effect of alleged federal acquiescence, but the considerations I mention are by no means irrelevant.

With reference to procedural matters, the 1892 Criminal Code of Canada followed the provisions of the English Draft Code almost to the letter. Section 3(b) defined Attorney General as “the Attorney General or Solicitor General of any province of 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”. The period from 1892 to the major revision of the Code in 1953-54 witnessed little in the way of changes to the procedures affecting the Attorney General. Amendments in the 1953-54 revision gave the Attorney General of Canada “the same rights of appeal in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government” as the Attorney General of a province. No alteration was made in the definition of “Attorney General” in s. 2(2) but s. 2(33) introduced the definition of “prosecutor”.

Procedural changes from time to time in the Criminal Code altered in minor detail the powers and privileges of the provincial Attorney General, but at no point did the federal government in the exercise of its “criminal procedure” powers purport to take away any of the powers of the provincial Attorneys General. Only in 1968-69 did Parliament take the step of, in effect, creating a second Attorney General, with competing claims to jurisdiction in respect of the control and supervision of the administration of criminal justice.

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The Authorities

Reference should now be made to the principal authorities which the respondent and the provincial Attorneys General advance in support of their common position. Shortly after Confederation, the case of Attorney General v. The Niagara Falls International Bridge Company[33] was heard and decided. Strictly speaking, that case dealt with whether the Attorney General of Ontario was the proper Attorney General to file an information for public nuisance or whether it should have been the Attorney General for the Dominion. Vice‑Chancellor Strong, in deciding this point, drew on analogies from criminal law and the use of ex officio criminal information, at pp. 37-38:

…The power of making criminal laws is in the Legislature of the Dominion; but it has never been doubted that the Attorney General of the Province is the proper officer to enforce those laws by prosecution in the Queen’s Courts of justice in the Province.

In 1888, before the passage of the Criminal Code, the Ontario Queen’s Bench addressed the problem of divided jurisdiction in criminal justice in determining whether it was intra vires the Province to appoint justices of the peace, R. v. Bush[34]. In interpreting ss. 91(27) and 92(14), Street J. observed, at pp. 403-404, with respect to the provincial head of power:

Now these words, standing alone and without any interpretation or context, appear to me to be sufficient, had no other clause in the Act limited them, to confer upon the Provincial Legislatures the right to regulate and provide for the whole machinery connected with the administration of justice in the Provinces, including the appointment of all the Judges and officers requisite for the proper administration of justice in its widest sense, reserving only the procedure in criminal matters.

After reviewing ss. 96, 100, 101 and 91(27), he concludes at p. 404:

Everything coming within the ordinary meaning of the expression “the administration of justice,” not covered by the sections which I have referred to, therefore, remains, in my opinion, to be dealt with by the Provincial Legislatures in pursuance of the powers conferred

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upon them by para. 14 of sec. 92, excepting only what has been subtracted from those powers by the other sections which I have quoted.

In both Niagara Falls Bridge and Bush, the Courts gave a large interpretation to both the role of the provincial Attorney General and the meaning of the administration of justice in the province. Both of these judgments were rendered before the enshrinement of the Attorney General in the Criminal Code, yet after the creation of an Attorney General of Canada in 1868.

We come then to the much discussed decision of Wurtele J., of the Quebec Court of Queen’s Bench, in R. v. St. Louis[35]. The facts are straightforward. The accused was charged with obtaining money from Her Majesty the Queen by false pretences. The information was laid and prosecuted upon by the Commissioner of the Dominion Police, purportedly “acting as such on behalf of Her Majesty the Queen”. Before the grand jury, the Attorney General of Canada preferred the indictment with leave of the Court, but the grand jury threw out the bill. In the result, Wurtele J. held that the Commissioner was not acting as legal representative of the Queen, but had bound himself over to prosecute as a private individual, and hence was liable for all costs incurred by St. Louis until the Attorney General of Canada intervened with leave of the Court.

In reaching his conclusion, Wurtele J. subjected the role of the Attorney General of Canada to a careful scrutiny, probably the most careful analysis to be found in any of the cases in terms of the provisions of the Code, as it then stood, as well as in terms of the Constitution. Thus, I quote at some considerable length from his reasons, at pp. 145-6:

By the Act of Confederation, the administration of justice in each of the Provinces is entrusted to the Provincial Government, and it is therefore the provincial law officers of the Crown whose duty it is to conduct or to supervise, as the case may be, all criminal prosecutions. The proceedings are generally commenced by a private prosecutor, who lays his complaint before a magistrate; but in cases which concern the Government of the country or affect public interests, the prosecution

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may be commenced by the provincial attorney-general himself or a crown prosecutor duly authorized by him, directly preferring a bill of indictment before the grand jury, or when the matter regards the federal government by the Attorney-General of Canada doing so, who must, however, be first authorized to do so by the order of a judge or of the court; or Her Majesty, under the provisions of article 558 of the Criminal Code, may lay an information before a magistrate and thus initiate a prosecution, but, in doing so, the Crown must be represented and must act by the attorney-general of the Dominion or of one of the provinces, as the case may relate either to the Dominion or to a province.

The Attorney-General of Canada is the legal and proper representative of the Crown in all matters which concern the Government of the Dominion, and he has the superintendence of all matters connected with the administration of justice in Canada not within the express jurisdiction of the Governments of the Provinces. As the conduct or supervision of criminal prosecutions before the criminal courts devolves upon the provincial law officers, the Attorney-General of Canada has no ministerial duties or official legal functions to perform in that connection, and consequently when he, with the consent of a judge or under an order of the court, prefers a bill of indictment, and conducts a prosecution before the petit jury in which the Government of the Dominion is interested, he occupies a position which is analogous to that of a private prosecutor.

It might be noted that Wurtele J. gives consideration to both the wording of s. 92(14) and that of the Department of Justice Act in reference to the role of the Attorney General of Canada.

In Re Public Inquiries Act[36], dealing with the constitutional validity of the inquiry in question, Chief Justice Macdonald distinguished in a general manner between “criminal law and procedure” and “administration of justice” in these terms, at pp. 117, 118:

“Criminal matters” are, in my opinion, proceedings in the criminal courts, and “Procedure” means the steps to be taken in prosecutions or other criminal proceedings in such Courts. Under its powers in respect of administration of justice when crime has been committed, the province puts the machinery of the criminal law in

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motion. This undoubtedly is one branch of the administration of justice…

(Emphasis added.)

The following passage from In re Adoption Act[37], has been quoted in the Alberta Courts and in a number of the factums filed in this Court. Duff C.J. is speaking on behalf of the Court, at p. 403:

Moreover, while, as subject matter of legislation, the criminal law is entrusted to the Dominion Parliament, responsibility for the administration of justice and, broadly speaking, for the policing of the country, the execution of the criminal law, the suppression of crime and disorder, has from the beginning of Confederation been recognized as the responsibility of the provinces and has been discharged at great cost to the people; so also, the provinces, sometimes acting directly, sometimes through the municipalities, have assumed responsibility for controlling social conditions having a tendency to encourage vice and crime.

The two principal judicial authorities relied upon by the Attorney General of Canada in the present proceedings are: Reference re Validity of the Combines Investigation Act[38], on appeal to the Judicial Committee sub nom. Proprietary Articles Trade Association v. Attorney General for Canada[39]; and Reference re Dominion Trade and Industry Commission Act[40], on appeal to the Judicial Committee sub nom. Attorney General for Ontario v. Attorney General for Canada[41].

In Reference re Validity of the Combines Investigation Act, neither Duff J. nor Newcombe J. appear to have directed any real inquiry as to ss. 31 and 32 of the Act, devoting most of their reasons to ascertaining the scope of “criminal law” in relation to the creation of substantive offences.

Sections 31 and 32 of the Combines Investigation Act, R.S.C. 1927, c. 26, are our major concern here. Section 31(1) provided that the Minister (charged with the administration of the Act) “may remit to the Attorney General of any province within which such alleged offence shall have

[Page 1038]

been committed, for such action as such attorney general may be pleased to institute”. Subsection (2) reads:

If within three months after remission aforesaid, or within such shorter period as the Governor in Council shall decide, no such action shall have been taken by or at the instance of the attorney general of the province as to the Governor in Council the case seems in the public interest to require, the Solicitor General may on the relation of any person who is resident in Canada and of the full age of twenty-one years permit an information to be laid against such person or persons as in the opinion of the Solicitor General shall have been guilty of an offence against any of the provisions of this Act.

(Emphasis added.)

Subsection (3) permits the Solicitor General to apply to the Minister of Justice “to instruct counsel to attend on behalf of the Minister at all proceedings consequent on the information so laid”.

Section 32(1) renders the offence an indictable one and s. 32(2) requires that “no prosecution for any offence under this section shall be commenced, otherwise than at the instance of the Solicitor General of Canada or of the Attorney General of a province”.

Nothing in either of these sections indicates anything more than the laying of an information and the attending of counsel for the Minister at the proceedings. It might be recalled that, at this period, any prosecutor might bind himself over to prefer an indictment, if necessary, or he might prefer an indictment with the consent of a judge or the Attorney General of the province. Thus, it is not surprising that on appeal to the Judicial Committee, sub. nom. Proprietary Articles Trade Association v. Attorney General for Canada, at p. 327, Lord Atkin stated in passing:

The same principles 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.

(Emphasis added.)

In concluding, Lord Atkin found no ground for suggesting that the Dominion could not employ its

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own executive officers to administer constitutionally valid legislation, “as it does regularly in the case of revenue officials”. The example chosen, “revenue officials”, makes it clear that Lord Atkin was thinking of administrative functionaries working in fields other than criminal law, and this is not surprising as the right to initiate proceedings was not in any way in issue in the Proprietary Articles case. It cannot be thought that his passing observation to revenue officials was intended to embrace or impinge upon an office of such constitutional and historic importance as that of the Attorney General. Indeed, as was pointed out by Morrow J.A., of the Alberta Court of Appeal, in the course of a careful analysis in the present proceedings, the language of s. 31(2) of the Combines Investigation Act could be taken as recognizing the primary power of the provincial Attorneys General in the prosecutorial role.

A similar structure for proceeding was provided in the Dominion Trade and Industry Commission Act, 1935 (Can.), c. 59, in ss. 20 and 22. Any complaint received by the Commission might be investigated and a report made to the Attorney General of Canada recommending prosecution. By s. 20, the Attorney General of Canada could refer the matter either to the Director of Public Prosecutions created by s. 21, or to the Attorney General of the relevant province “for such action as may seem to be appropriate in the circumstances”. Section 22 defined the duties of the Director of Public Prosecutions under the superintendence of the Minister of Justice: (a) “to institute, at the instance of the Attorney General of Canada criminal proceedings for violation of any of the laws prohibiting unfair trade practices in cases which appear to be of importance or difficulty or in which special circumstances or the refusal or failure of any other person to institute, such proceedings appear to render the action of such Director necessary to secure the due prosecution of an offender”; (b) “to give such advice or assistance” to the Attorney General of any province in connection with prosecutions; and (c) to assist the

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Commission in investigations.

In this Court, in Reference re Dominion Trade and Industry Commission Act, supra, Duff C.J. at p. 383 dealt with the second part of s. 20 as well as ss. 21 and 22 by following the Proprietary Articles Trade Association decision:.

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.

On appeal to the Judicial Committee, the Attorney General of Ontario objected to s. 22(a) and the second part of s. 20, in that they took “out of the control of the Law Officers of the Province the conduct of the criminal proceedings referred to in the section” and thus encroached upon s. 92(14), to which Lord Atkin replied, Attorney General for Ontario v. Attorney General for Canada[42], at p. 416:

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.

This statement recognizes the paramount prosecutorial role of the Attorneys General of the provinces. It would seem to have been the intention, looking at the sections, that the federal authorities would have to operate within the existing criminal procedures respecting the laying of informations, the preferring of indictments and prosecution at trial, subject to the supervision of the provincial Attorney General, all as suggested in The Queen v. St. Louis. It is also, I think, correct to say that the prosecutorial role in the

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constitutional sense, as we have it before us today, was neither argued nor considered in either the Combines or the Dominion Trade case.

Two cases cited with respect to the exclusive federal power to provide for the enforcement of its laws are Attorney General of Canada v. Flint[43] and In re Vancini[44]. Both of these rest upon the old case of Valin v. Langlois[45] and, on appeal[46].

Valin v. Langlois started with an election petition by the respondent in the Quebec Superior Court pursuant to the Dominion Controverted Elections Act, 1874, that Court being given jurisdiction to try such matters under the Act. Ultimately, the Judicial Committee upheld the conferral of jurisdiction by reading s. 41 of the British North America Act in conjunction with s. 92 (14), since s. 41 included among the powers of Parliament in respect of federal elections the power to legislate as to “the Trial of controverted Elections, and Proceedings incident thereto”. Hence, s. 92 (14) was considered by implication not to have anything to do with such election petitions, and at p. 120:

There is therefore nothing here to raise a doubt about the power of the Dominion Parliament to impose new duties upon the existing Provincial Courts, or to give them new powers, as to matters which do not come within the classes of subjects assigned exclusively to the Legislatures of the provinces.

In this Court, the judgments ranged much wider in considering the question, notably that of Taschereau J. At pp. 22-26, Ritchie C.J. gives a long list of examples of federal legislation in relation to such subjects as customs, inland revenue, insolvency, banking, and the like “not only vesting jurisdiction in the Provincial Courts, but also regulating, in many instances and particulars, the procedure in such matters in those courts”. The Chief Justice does not, however, mention criminal law and procedure in the same breath, nor do any of the other judges. In fact, Fournier J., at p. 41, narrowed the whole controversy to one over the

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respective contentions of the two governments to jurisdiction over civil rights and excepted wholly from consideration the question of criminal law.

In Flint, five years later, Ritchie C.J. found the relevant principles to decide the instant case in Valin v. Langlois and at pp. 708-9 stated the conclusion:

The parliament of Canada has the sole exclusive power to legislate on the subject of the Inland Revenue of the Dominion, and in the exercise of that power the unquestioned right to impose the penalties prescribed by sections 127, 128, 130 and 137 before referred to, and declare how and in what courts in the Dominion such penalties may be prosecuted, sued for and recovered, and in selecting the Court of Vice-Admiralty as having jurisdiction in the Province of Nova Scotia, where the cause of prosecution arises, and where the defendant is served with process, the parliament of Canada in no way exceeded its exclusive legislative power.

Vancini attacked a provision of the Code, which permitted a defendant to opt for summary trial by a magistrate rather than waiting for the next general sessions. Vancini argued that, since there was no court of general sessions in New Brunswick, there was no jurisdiction in the magistrate (despite his consent to summary trial). Sedgewick J. disposed of the matter on the basis of Valin v. Langlois, stating at p. 627:

Where once the Parliament of Canada has given jurisdiction to a provincial court whether superior or inferior, or to a judicial officer, to perform judicial functions in the adjudicating of matters over which the Parliament of Canada has exclusive jurisdiction, no provincial legislation, in our opinion, is necessary in order to enable effect to be given to such parliamentary enactments.

Not only is this case not a particularly strong one on its facts, but the limits of the federal exclusive jurisdiction in respect of criminal law and procedure are not considered, the vesting of jurisdiction in a court by means of procedure being the only issue.

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Canadian Pacific Wine Co. Ltd. v. Tuley[47], also cited, dealt with the use of the procedures of the Summary Convictions Act of British Columbia to try an offence under the British Columbia Prohibition Act. The case is simply the converse of the three previous cases, standing for the principle that the provinces may legislate for enforcement of enactments passed under a head of exclusive provincial power.

Much relied upon by the Attorney General of Canada was the case of R. v. Smythe[48]. Smythe was charged with making a false or deceptive statement in an income tax return contrary to s. 132(1) of the Income Tax Act, R.S.C. 1952, c. 148, thereby evading taxes. Section 132(1) made this a summary conviction offence, although subs. (2) permitted the Attorney General of Canada to elect to prosecute by way of indictment. The argument on behalf of the accused was that this exercise of discretion by the Attorney General of Canada was contrary to the Bill of Rights and hence inoperative.

In the High Court, Wells C.J.H.C. reviewed the role of the Attorney General “in the administration of our criminal law” and the entitlement of the federal Attorney General, like his provincial counterparts, “in the administration of their offices to make decisions regarding prosecution in an independent and judicial manner”. Earlier the Chief Justice had stated, at p. 222:

In addition it is not to be forgotten that the authority of the Attorney-General is in this matter contained in the taxing statute itself. In my respectful submission, no such authority needed to have been given to him, but the fact that it was restated does not, as I see it, add to or detract from his essential authority. It was undoubtedly included in the statute by the tax collectors who drafted it ex abundante cautela.

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Again, in conclusion, the Chief Justice states at p. 234 that the Bill of Rights in no way applied “to the discretion of the Attorney-General of Canada vested in him by reason of his office as a matter of common law and as a matter of statute in s. 132 of the Income Tax Act to proceed by way of indictment, which is a full and completely recognized form of criminal procedure”.

On appeal, this judgment was upheld with brief reasons by Gale C.J.O. and, in this Court, Fauteux C.J. approved the reasoning of Wells C.J.H.C. in another relatively brief judgment which again centred upon the wording of s. 132 of the Income Tax Act.

It is true that the prosecution in Smythe was conducted by the federal Attorney General, but the proceedings were for an offence under the Income Tax Act. No issue was taken as to the power of the federal Attorney General to act to enforce and take proceedings upon offences created in federal enactments other than those relating to criminal law in the constitutional sense. The issue was as to choice of procedures.

Since the 1968-69 amendments to the Criminal Code, there has been a series of cases in which s. 2(2) has been considered. One of these is Regina v. Collins[49]. (Appeal to Ontario Court of Appeal dismissed by reason of the death of the appellant.) In Collins, the charge was trafficking under the Narcotic Control Act. The District Court Judge found that non-Code offences were exclusively under the jurisdiction of the federal Attorney General as prosecutor and that s. 2(2) was legislation in relation to criminal procedure. Before Donnelly J. of the High Court it was admitted that the federal Attorney General had no such exclusive jurisdiction, but s. 2(2) was upheld as legislation in respect of preferring indictments and thus, either within s. 91(27), or if not strictly within criminal

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procedure, then necessarily incidental thereto.

After a comprehensive review of the authorities, Donnelly J. concluded as follows, at p. 52:

By 91(27) of the Act the Parliament of Canada has exclusive authority in the criminal law, except the constitution of Courts of criminal jurisdiction. Under para. (b) the Attorney-General of Canada or his agent could prefer an indictment under s. 496(1) of the Criminal Code. Sections 504 and 505 of the Criminal Code set out the persons entitled to prefer an indictment before a Court constituted with a Grand Jury. Section 507 provides the manner in which indictments are to be preferred in certain Provinces and Territories. There is no indication that the right of Parliament to enact ss. 504, 505 and 507 has ever been questioned. If it had the authority to prescribe the persons entitled to prefer such indictments it has the power to authorize others to prefer an indictment not only under these sections but also under s. 496(1). By para (b) of the definition “Attorney General” in s. 2 Parliament has increased the number of persons authorized to prefer an indictment under ss. 496(1), 505 and 507.

If s. 2(2) is properly characterized as merely increasing the number of persons authorized to prefer an indictment one could not, I think, question the conclusion reached by Donnelly J. In my view, however, as I have sought to show, s. 2(2), properly elucidated and characterized, goes far beyond that and 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.

A series of cases interpreting s. 2(2) of the Code have been referred to in the factums. While there are a number of such cases, in reality there are only three: Pelletier, Miller and Pontbriand. The rest simply adopt one or the other of the first two and the third, coupled with the Quebec Court of Appeal decision in Aziz v. R.[50], casts new light upon Miller.

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R. v. Miller, supra, involved charges both under Code s. 350 and s. 169 of the Bankruptcy Act. It was held that the Attorney General of Canada could not act as Attorney General under the Code offences, but could lay charges under the Bankruptcy Act (although the Attorney General of Quebec could also do so).

The following cases followed Miller: Re Miller and Thomas and The Queen[51]; R. v. Hancock and Proulx[52]. The following cases followed Pelletier: R. v. Pfeffer[53]; R. v. Dunn[54].

Although I have already made reference to the judgment of R. v. Pontbriand, supra, it deserves note here. The charges involved both violations of the Narcotic Control Act and conspiracies to violate that Act; Hugessen A.C.J, made no distinction between the violations and the conspiracies to violate. Pelletier was distinguished, as was Miller. The basis for this latter distinction was that the offences under the Bankruptcy Act in Miller fell under Parliament’s power to legislate in relation to bankruptcy under s. 91(20), whereas the Narcotic Control Act was passed by Parliament exclusively under its criminal law power and has no independent federal constitutional underpinning. At p. 110, he reached his conclusion:

To put the matter another way, the powers and privileges of the Attorney General to conduct, supervise and control criminal prosecutions are more than a matter of simple procedure but go to the very heart of the administration of criminal justice. The right to legislate in relation to those powers and privileges was, by ss. 92(14) and 135 of the B.N.A. Act, reserved to the provincial legislatures. Parliament, having the right to legislate on the procedure in criminal matters, may add to those powers and privileges but cannot take them away. In particular, Parliament cannot create its own Attorney General and seek to give him rights relating to the administration of criminal justice similar in nature and scope to those exercised by the Attorney General at the time of Confederation, since the definition of “Attorney General” in s. 2 of the Criminal Code purports to do just this, it is, to that extent, ultra vires.

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In Aziz v. R., supra, the charge was conspiracy to traffic in a narcotic. The reasons of Hugessen A.C.J. in Pontbriand were adopted by Lajoie J.A.

Resolution of the Conflict

The difficulty in resolving the conflict in this case stems from separate lines of authority which are brought into collision by the amendment to s. 2(2) of the Criminal Code:

(1) cases such as Niagara Falls Bridge and St. Louis which clearly indicate that the supervision and control of criminal proceedings lies in the provincial Attorney General. These decisions are reinforced by a century of practice during which the provincial Attorneys General exercised that supervision and control with the concurrence of the federal Attorney General. The federal government has from time to time extended and altered the powers and privileges of the provincial Attorney General through amendments to the Criminal Code, but has never hitherto sought to exclude the provincial Attorney General from his supervisory role;

(2) another line of cases, e.g. Valin v. Langlois, Flint, Vancini, Smythe, where the federal power to enforce its laws other than “criminal” laws has been supported, apparently without serious question;

(3) a third line of cases, e.g. In re McNutt[55]; Simcovitch v. R.[56]; The Margarine Reference[57], where the unitary view of the criminal law was moderated for constitutional purposes, i.e. provincial offences are merely penal and federal offences are either penal or crimes in the true sense.

(4) cases where various non-Code offences under other federal acts have been upheld on the basis of the criminal law power, e.g. the Combines Investigation Act in Proprietary Articles Trade

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Association v. Attorney General for Canada, supra.

There are these conflicts in the jurisprudence and some resolution of them must be found. A constitutional modus vivendi is necessary in order to accommodate both levels of government.

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). Among the older cases, in particular Niagara Falls Bridge and St. Louis, there are clear statements to the effect that the provincial Attorney General is the representative of the Crown responsible for the conduct and supervision of criminal proceedings. In support of the federal position, one finds at best the Proprietary Articles Trade Association and Dominion Trade and Industry Commission Act cases, neither of which provides any basis for a claim to constitutional jurisdiction over the Attorney General’s role.

If one follows the weight of judicial authority in (1) and (3), the provincial Attorney General would be the only Attorney General in criminal proceedings, since his role is in pith and substance one of administration of criminal justice. Historical analysis and an examination of the substance of his function support this view. The “broad proposition” maintained by the respondent and six of the provinces is that all federal offences are “crimes” and the federal government has no role to play in the administration and enforcement of criminal law beyond the creation of uniform offences, uniform punishments, and uniform procedures.

Alternatively, there is the “broad proposition” stated by the federal government which rests on the notion that the rights of the provincial Attorney General derive solely from the Criminal Code and hence can be removed, piecemeal, or at one fell swoop, from the Code. Undoubtebly, the federal Parliament has altered the details of the powers

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and privileges of the Attorney General in the Code. But it cannot be said that the Attorney General was a creation of the Code—for that office existed in the provinces prior to the introduction of the 1892 Code. Nor can the addition of powers to those possessed by the Attorney General at common law provide a basis for the converse proposition, that the federal Parliament can remove all of those powers from the provincial Attorney General, including whatever common law powers he might once have possessed. To accept the federal proposition would mean that the term “administration of justice” would become confined in an important respect to “the administration of civil justice”. A finding that the federal government may legislate to exclude the provincial Attorney General under “criminal procedure” would make “criminal procedure” co-extensive with “criminal justice”, a notion rejected in Di Iorio. There is a need, I think, to maintain the “subtle balance” between national and local interests envisaged in our Constitution, leaving the administration of criminal justice in provincial hands where it could be more flexibly administered in response to local conditions. If the present s. 2(2) were to be upheld in relation to all non-Code offences, owing to the line of decisions mentioned in (4), and more broadly (3), such a conclusion on the narrow facts of this case would expose the whole of the Code to similar treatment by the federal government. The end result would be one Attorney General for the whole of Canada and that Attorney General would be the federal Attorney General.

A finding of concurrent jurisdiction with respect to the office of the Attorney General could obviate these constitutional problems. The provincial Attorney General would thus constitutionally be permitted to prosecute and supervise any offence, Code or non-Code. No accused could object to his jurisdiction. Alternatively, in respect of non-Code offences, the Attorney General of Canada could prosecute and supervise those proceedings, again without constitutional complaint from the accused, since in the concurrent field, the federal Attorney General is paramount in the event of a conflict. In effect, this would resolve the constitutional problem by ignoring it, since to find concurrent juris-

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diction would run counter to (1) above, counter to the notion of divided jurisdiction implicit in ss. 91(27) and 92(14), counter to the accepted view of the aspect doctrine and counter to this Court’s traditional reluctance to find concurrency and its corollary of paramountcy. Much as one might wish to find in a case such as this some constitutional compromise permitting both levels of government to operate validly in a given field, there is the overriding need to maintain the integrity of the criminal justice system. In criminal matters, and more precisely in criminal prosecutions, a powerful argument can be made for the drawing of firm lines not dependent upon the vagaries of the institution of proceedings in the individual case. The words of Chief Justice Laskin in Di Iorio bear repeating, pp. 181-2:

Moreover, if governmental powers are to be exercised coercively against individuals, the latter are entitled to have at least such protection as is provided by the distribution of legislative power under the British North America Act, in the sense that the Act should be construed as far as possible to preclude both levels of governmental authority from being entitled to converge on an individual for the same purpose and possibly even at the same time.

It is of no little significance that all five judges of the Appellate Division of the Alberta Supreme Court were in broad agreement that any exclusion of the provincial Attorney from the conduct of prosecutions in criminal matters would be unconstitutional. In his dissenting reasons, Mr. Justice McDermid found the indictment in this case properly preferred on the narrow ground that the Attorney General of Canada may prefer an indictment “only upon the failure to act of the Attorney General of a Province”. McDermid J.A. took the view that:

…the interpretation the Attorneys General have placed on this section is the proper interpretation, i.e. by their practice the definition should be interpreted so that the Attorney General of Canada has acted only when the Attorneys General of the Province have not done so and with their tacit approval.

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To put such an interpretation on the definition in my opinion makes it constitutional. To put the interpretation on it that the Attorney General of a province is excluded from conducting a prosecution under the Narcotic Control Act makes it unconstitutional.

The dissenting judges characterized the issue in this case as whether “the Parliament of Canada has the right to say who can prefer indictments” and further, whether Parliament can give a “preference” to the federal Attorney General over the provincial Attorney General. With respect, that is not the question posed by s. 2(2) in its present wording.

Another point of agreement among the judges of the Appellate Division was that the division in s. 2(2) between Code and non-Code offences was not relevant from the constitutional perspective. The critical dividing line was between “criminal law” in the constitutional sense and the other heads of federal power. All agreed that the Narcotic Control Act forms part of the criminal law. McDermid J.A. states:

I do not think it makes any difference, in considering whether the rights given to the Attorney General of Canada in respect of this Act are ultra vires or not, that the offence charged is under the said Act and not under the Criminal Code. Whatever the powers of the Parliament of Canada to provide who may or may not prefer indictments in respect of narcotic offences, the same powers exist in respect of all Criminal Code offences.

Similarly, the Chief Justice observed that:

If the Attorney General of a Province can be excluded by the Parliament of Canada by a mere amendment to the Criminal Code from having anything to do with a prosecution for a violation of a statute of Canada where proceedings have been instituted by the Attorney General of Canada, it would follow that the Attorney General of a Province could also be excluded by further amendment from having anything to do with prosecutions of all criminal offences, other than those relative to the enforcement of Provincial statutes, and this would make hollow the powers given to the Province of legislating in relation to the administration of justice in the Province.

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In the result, s. 2(2) was found to be ultra vires the federal government by a majority of the Appellate Division, Mr. Justice Morrow writing a separate judgment concurring with the Chief Justice and Lieberman J.A., whereas McDermid and Haddad JJ.A. dissented on the narrow ground set out above.

In his reasons for judgment, Chief Justice McGillivray made the criminal/non-criminal distinction. He expressed himself as being in agreement with a remark of Estey J.A. in Pelletier to the effect that there should be a right in the Attorney General of Canada to enforce federal statutes, but only “to the extent that it relates to the enforcement of federal statutes other than those which are in substance criminal law”. The Chief Justice gave examples of federal statutes which, in his view, provide sanctions for violations which were not “criminal law”, namely, the Customs and Excise Act, the Income Tax Act, the Migratory Game Birds Act and the Bankruptcy Act. Other federal Acts which might fall under the rubric of “criminal law” would include the Combines Investigation Act, R.S.C. 1970, c. C-23, and the Juvenile Delinquents’ Act, R.S.C. 1970, c. J-3. I will leave for the moment the question whether the Narcotic Control Act, with which we are concerned in the present proceedings, falls under the same rubric. There is no necessary limit upon what offences the federal government may determine to be “criminal” in nature, nor is there any need that such offences be enshrined in the Criminal Code.

In framing the constitutional issue in Pontbriand, Hugessen A.C.J. explicitly excluded from consideration the role of the Attorney General of Canada in prosecuting and superintending proceedings in non-criminal matters, at p. 104:

In Miller, the Court of Appeal did not find it necessary to reach this question, which perhaps is not surprising when we recall that the only indictment which was held to be valid in that case was laid for offences, not under the Criminal Code, but under the Bankruptcy Act; Parliament’s power to legislate in relation to bankruptcy under head (20) of s. 91 of the British North America Act is quite independent of its criminal law power under

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head (27), and that being so its designation of an officer with preferential prosecutorial rights under the statute would not seem to raise any constitutional issue.

In this Court, three of the Provinces, Quebec, Ontario and British Columbia, drew this same distinction, limiting their attack on the constitutionality of s. 2(2) “to the extent that such Acts of the Parliament of Canada or regulations made thereunder other than the Criminal Code depend for their validity upon head 27 of section 91”.

The prime argument of the Attorney General of Canada against the criminal/non-criminal distinction seems to be that there are many offences found within the Criminal Code which could be supported under heads other than s. 91(27). This would seem to miss the crucial point, namely, that Parliament has chosen to make these offences criminal in nature, rather than merely leaving them as statutory offences in, say the Bank Act or the Divorce Act. The Attorney General of Canada denies “the existence of a special relationship between head 14 of s. 92 and head 27 of s. 91 that does not exist in relation to the other heads of legislative jurisdiction in s. 91”, despite the fact that the very wording of the two heads would seem to indicate a close relationship of mutual modification, and a delicate one at that.

A possible solution to the problem may lie in the adoption of the following propositions:

(1) If nothing is stated in the British North America Act, 1867 to modify the matter, the authority to legislate under a particular head of power includes the authority to provide for the enforcement of such legislation.

(2) This principle must, however, be modified when two heads of power are in conflict and, in that event, the language of one must be modified by that of the other.

(3) Thus, s. 92(14) modifies s. 91(27) as the provinces have exclusive authority in respect of “the administration of justice”. The exclusive power of the federal government with respect to criminal law and procedure is, therefore, limited.

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(4) If the legislation creating a federal offence is in pith and substance criminal law as, for example, the Criminal Code, then the provinces have the exclusive supervisory authority for the prosecution of offences under that legislation.

(5) Parliament has exclusive authority in relation to prosecution of all other federal offences.

Broadly speaking, then, the division of authority would 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.

Narcotic Control Act as Criminal Law

It is contended by the Attorney General of Canada that the Narcotic Control Act is not legislation enacted under the “criminal law” power and therefore, as I understand the argument, proceedings instituted under that Act are free of any supervisory power of the provincial Attorneys General. In view of this Court’s decision in Industrial Acceptance Corporation Ltd. v. The Queen[58], it would not seem to be open to the Attorney General of Canada to support the Act on some basis other than criminal law, such as Trade and Commerce, or the Treaty-Making Power, or the general “Peace, Order and good Government” power. Nonetheless, since the Industrial Acceptance decision has been questioned, a few brief observations upon the Narcotic Control Act are warranted.

[Page 1055]

In my view, it is extremely difficult, indeed impossible upon the authorities, to characterize the Act as being little more than a stringent regulatory scheme for the control of narcotic drugs. Section 3 of the Act prohibits the simple possession of a narcotic. Section 4 renders trafficking, or possession for the purpose of trafficking, an indictable offence and “traffic” is given a broad meaning. Importation or exportation of narcotics is prohibited by s. 5 and, again, “importing” has been read broadly: Re Martin and The Queen[59]. Section 6 bans the cultivation of opium poppy or marijuana. Under the authority of s. 12 of the Act, detailed regulations have been promulgated to license and authorize a restricted and exceptional trade in narcotics for medical and scientific purposes.

In Beaver v. The Queen[60], both the majority and the minority judgments gave consideration to the structure of the Act and Regulations. In reply to the suggestion that the Act creates what were termed “public welfare offences”, Mr. Justice Cartwright, on behalf of the majority, stated at p. 539:

…I can discern little similarity between a statute designed, by forbidding the sale of unsound meat, to ensure that the supply available to the public shall be wholesome, and a statute making it a serious crime to possess or deal in narcotics; the one is to ensure that a lawful and necessary trade shall be carried on in a manner not to endanger the public health, the other to forbid altogether conduct regarded as harmful in itself.

Fauteux J., speaking for the minority, characterized the Act broadly, as follows, at pp. 546-7:

The plain and apparent object of the Act is to prevent, by a rigid control of the possession of drugs, the danger to public health, and to guard society against the social evils which an uncontrolled traffic in drugs is bound to generate. …In brief, the principle underlying the Act is that possession of drugs covered by it is unlawful; and where any exception is made to the principle, the exceptions themselves are attended with particular controlling provisions and conditions.

[Page 1056]

To suggest that the Narcotic Control Act merely serves to control, rather than prohibit, the possession, use and trafficking in narcotics, is to characterize the Act by giving decisive weight to the Regulations and, in particular, to the exceptional trade in drugs for medical and scientific purposes permitted by the Regulations. A consideration of the Single Convention on Narcotic Drugs, 1961, of which Canada is a signatory, only serves to reinforce the distinction between an illicit traffic in narcotics, which is prohibited, and the carefully-controlled use of narcotics for medical and scientific purposes. Articles 2 to 32 of the Convention provide for a strict scheme of international and domestic control over the use of drugs for permitted purposes. Article 33 states bluntly: “The Parties shall not permit the possession of drugs except under legal authority.” Article 36 is headed “Penal Provisions” and provides for punishment for offences falling under the broad language of para. 1:

1. Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed internationally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.

Paragraph 2(b) states it to be desirable that such offences be included as extradition crimes, and para. 3 provides that the criminal law of the Party concerned shall determine questions of jurisdiction. If one considers the severity of the penalties provided for in the Narcotic Control Act—possible imprisonment for life for trafficking and importation or exportation (and a minimum term of seven years for the latter), as well as imprisonment of up to seven years for cultivation, or for possession where proceedings are by way of indictment—it is clear that Canada has fulfilled its obligations under Article 36 of the Convention.

[Page 1057]

The decided cases that have been concerned with the constitutional validity of the Narcotic Control Act and its predecessors have, without fail, upheld the Act as being criminal law and, therefore, within the federal power of s. 91(27). The earliest reported case is Dufresne v. The King[61]. The appellants had been charged with selling cocaine contrary to a Quebec provincial statute, but that statute was found to be inapplicable, if not ultra vires, in the face of the federal Opium and Drug Act, 1911 (Can.), c. 17, which represented a valid exercise of federal legislative authority under s. 91(27).

A later version of the federal Act, the Opium and Narcotic Drug Act, 1923, (Can.), c. 22, was found to be “not an Act for licensing a particular trade, but one for remedying an evil and creating a new crime and therefore intra vires of the Dominion”, as the headnote states in Ex p. Wakabayashi, Ex p. Lore Kip[62]. The appellants attempted, without success, to argue that the Act was a licensing act akin to the McCarthy Act. Macdonald J., at p. 234, said:

…I have no hesitation in holding, that the Act in question is criminal and not licensing legislation. The primary object was to create a crime and afford punishment for its infraction. The licensing provisions were necessary but did not affect the validity of the legislation.

We then come to the Industrial Acceptance case. The company sought to recover an automobile, of which it was the owner under a conditional sales contract, but which had been forfeited under the terms of s. 21 of the Opium and Narcotic Drug Act, 1929 (Can.), c. 49, owing to its use in the trafficking of a narcotic. In the Exchequer Court, reported at [1952] Ex.C.R. 530, the company argued that s. 21’s forfeiture provisions were ultra vires the federal Parliament as legislation regarding property and civil rights. The Crown replied that s. 21 was “necessarily incidental to the carrying out of the true intent of the Act, namely the

[Page 1058]

complete suppression of the use of and the trafficking in of drugs”, that Act being in pith and substance criminal law. Referring to both Ex p. Wakabayashi and Dufresne, Cameron J. concluded at p. 534:

Disregarding for the moment the provisions for forfeiture contained in s. 21, it is my opinion that in essence the Act is within the term “the criminal law” as found in s. 91, head 27, and was therefore within the competence of Parliament to enact.

Upon appeal to the Supreme Court of Canada, Mr. Justice Locke in his dissent noted at the outset: “It is 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 ss. 27 of s. 91 of the British North America Act.” (p. 280) The appellant focused his attack upon the necessarily incidental view of the forfeiture provisions. While that may have been the opinion of Locke J., Rand J. (with whom Kellock, Cartwright and Estey JJ. concurred) had little difficulty in characterizing the legislation as criminal law. After analogy to forfeiture provisions in the revenue laws, Mr. Justice Rand stated at p. 278:

These considerations apply a fortiori to the suppression of such an evil as the narcotics traffic. Here, not the revenue, but the health as well as the moral and social condition of the community are endangered by a most insidious and destructive exploitation of human weakness. The difficulties attending its detection are multiplied many fold and the necessity for these strict and unqualified measures correspondingly greater.

The forfeiture of property used in the commission of such offences is then an integral part of criminal law, a subject matter of legislation by s. 91 committed to the Dominion Parliament…

Mr. Justice Kerwin, in a separate judgment (Taschereau J. concurring) expressly excepted from consideration forfeiture provisions under acts respecting customs and excise and squarely grounded his result at p. 275 upon the basis that the Act “provides for the forfeiture of property used in the commission of a criminal offence and is, therefore, legislation in relation to criminal

[Page 1059]

law.” Whether one looks to the judgment of Rand J. or that of Kerwin J., the characterization of the Act as criminal law was of importance in dealing with the forfeiture provisions.

In the recent case of R. v. Zelensky[63], dealing with the constitutional validity of the restitution and compensation provisions of the Criminal Code, Laskin C.J. drew support for his majority opinion from the Industrial Acceptance case, at p. 953, where “this Court upheld the validity of a provision for forfeiture of property used in the commission of a criminal offence, whether or not the property was owned by a person other than the one convicted”.

In the face of the structure of the Narcotic Control Act and Regulations, the terms of the 1961 Single Convention and the decided cases, the Narcotic Control Act cannot be characterized as being anything other than criminal law in pith and substance. That was the view of this Court in Industrial Acceptance Corporation Ltd. v. The Queen and I see no reason to reconsider the correctness of that decision.

To revert to the “Peace, Order and good Government” power to support the validity of the Narcotic Control Act in the wake of this Court’s decision in Re Anti-Inflation Act[64], would represent an unwarranted expansion of the general power and run counter to the opinions expressed in that case with reference to the “temperance” cases. Drug abuse is a very ancient phenomenon. While not a pressing problem at the time of Confederation, it was not then an unknown danger in North America: see Trasov, “History of the Opium and Narcotic Drug Legislation in Canada” (1962), 4 Crim. L.Q. 274.

While similarities certainly do exist between the Canada Temperance Act of 1878 and the present day Narcotic Control Act, I do not think one should press those similarities to the extent of supporting the latter legislation upon the basis of Russell v. The Queen[65]. As Mr. Justice Beetz put

[Page 1060]

it in the Anti-Inflation Act reference, “the Russell case is a special case” (p. 453) and “It is perhaps unfortunate that a case with a history as chequered as Russell be sometimes regarded as the authority which gave birth to the national concern doctrine” (p. 454). Given the expansive view taken of the interpretation of s. 91 in Russell, Sir Montague Smith simply held that the subject of the Act did not fall within any of the classes of subjects assigned to the provinces. As Beetz J. observed in the Anti-Inflation case at p. 454, “The Judicial Committee came close to characterizing the Act as relating to criminal law; however it found it unnecessary to classify its provision in the classes of subjects enumerated in s. 91 of the Constitution”, as the following passage from Russell reveals, at p. 839:

Laws of this nature designed for the promotion of public order, safety, or morals, and which subject those who contravene them to criminal procedure and punishment, belong to the subject of public wrongs rather than to that of civil rights. They are of a nature which fall within the general authority of Canada, and have direct relation to criminal law, which is one of enumerated classes of subjects assigned exclusively to the Parliament of Canada.

Many courts have struggled to rationalize Russell, the best known effort being that of Viscount Simon in Attorney General for Ontario v. Canada Temperance Federation[66]. In the recent Anti-Inflation Act reference, Mr. Justice Beetz (with whom a majority of the Court agreed on the national dimensions doctrine) indicated a desire to restrict the scope of that doctrine to new matters, “distinct subject matters which do not fall within any of the enumerated heads of s. 92 and which, by nature are of national concern” (p. 457). In my view, the signal restraint in the application of the general power ought to extend to a case such as this, where it would seem clear that the Narcotic Control Act can be easily and properly characterized as falling within one of the enumerated heads of federal power, namely, head 27 of s. 91.

[Page 1061]

Accepting, as I think one must, that the Narcotic Control Act is criminal legislation, it follows from what has gone before that provincial supervisory power is maintained in respect of prosecution of offences under that Act.

Conclusion

In the result, I would answer the restated constitutional questions:

(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.

The appeal should be dismissed. There should be no costs in the appeal.

Appeal allowed and judgment of first instance restored, DICKSON and PRATTE JJ. dissenting; no order as to costs.

Solicitor for the appellant: R. Tassé, Ottawa.

Solicitor for the respondent: A.M. Harradence, Calgary.

 



[1] [1977] 6 W.W.R. 501, 37 C.C.C. (2d) 129.

[2] (1879), 3 S.C.R. 1.

[3] [1931] A.C. 310.

[4] (1879), 3 S.C.R. 1.

[5] (1879), 3 S.C.R. 575.

[6] [1936] S.C.R. 379.

[7] [1924] A.C. 328.

[8] [1953] 2 S.C.R. 273.

[9] (1882), 7 App. Cas. 829.

[10] [1946] A.C. 193.

[11] [1976] 2 S.C.R. 9,

[12] [1949] S.C.R. 1.

[13] [1932] A.C. 54.

[14] [1932] A.C. 304.

[15] [1941] S.C.R. 87.

[16] [1936] S.C.R. 379.

[17] [1937] A.C. 405.

[18] (1950), 97 C.C.C. 366 (B.C.C.A.).

[19] (1975), 30 C.R.N.S. 372 (Que. C.A.).

[20] (1966), 50 C.R.I (B.C.C.A.).

[21] (1975), 35 C.R.N.S. 192 (Ont. C.A.).

[22] (1978), 1 C.R. (3d) 97 (Que. S.C.).

[23] [1978] 1 S.C.R. 152.

[24] (1974), 18 C.C.C. (2d) 516 (Ont. C.A.).

[25] [1974] S.C.R. x.

[26] [1977] 5 W.W.R. 454 (Sask. C.A.).

[27] [1976] 2 S.C.R. 373.

[28] [1952] 2 S.C.R. 392.

[29] [1929] S.C.R. 409.

[30] [1941] S.C.R. 396.

[31] [1903] A.C. 524 (J.C.P.C.).

[32] [1945] S.C.R. 600.

[33] (1873), 20 Grant’s Ch. R. 34.

[34] (1888), 15 O.R. 398.

[35] (1897), 1 C.C.C. 141.

[36] [1919] 3 W.W.R. 115 (B.C.C.A.).

[37] [1938] S.C.R. 398.

[38] [1929] S.C.R. 409.

[39] [1931] A.C. 310.

[40] [1936] S.C.R. 379.

[41] [1937] A.C. 405.

[42] [1937] A.C. 405.

[43] (1884), 16 S.C.R. 707.

[44] (1904), 34 S.C.R. 621.

[45] (1879), 3 S.C.R. 1.

[46] (1879), 5 App. Cas. 115 (J.C.P.C).

[47] [1921] 2 A.C. 417 (J.C.P.C.).

[48] [1971] 2 O.R. 209 (Ont. H.C.), aff’d [1971] 2 O.R. 234 (Ont. C.A.) and [1971] S.C.R. 680 sub nom. Smythe v. R.

[49] (1972), 10 C.C.C. (2d) 52 (District Court of Algoma); (1973), 11 C.C.C (2d) 40 (Ont. H.C.); (1973), 13 C.C.C. (2d) 172 (Ont. C.A.).

[50] (1978), 4 C.R. (3d) 299.

[51] (1975), 23 C.C.C. (2d) 257 (B.C.S.C.).

[52] [1976] 5 W.W.R. 609 (B.C.C.A.).

[53] [1976] 5 W.W.R. 452 (B.C. Co. Ct.).

[54] [1977] 5 W.W.R. 454 (Sask. C.A.).

[55] (1912), 47 S.C.R. 259.

[56] [1935] S.C.R. 26.

[57] [1949] S.C.R. 1.

[58] [1953] 2 S.C.R. 273.

[59] 59 (1973), 11 C.C.C. (2d) 224 (Ont. H.C.).

[60] [1957] S.C.R. 531.

[61] (1912), 5 D.L.R. 501 (Que. K.B.).

[62] [1928] 3 D.L.R. 226 (B.C.S.C.).

[63] [1978] 2 S.C.R. 940.

[64] [1976] 2 S.C.R. 373.

[65] (1882), 7 App.Cas. 829.

[66] [1946] A.C. 193.

 

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