SUPREME COURT OF CANADA
R. v. Wetmore, [1983] 2 S.C.R. 284
Date: 1983-10-13
Her Majesty The Queen Appellant; and
His Honour Judge Wetmore, a judge of the County Court of Vancouver, Kripps Pharmacy Ltd. and Stephen Kripps Respondents;
and
The Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for New Brunswick, the Attorney General of British Columbia, the Attorney General for Saskatchewan, the Attorney General for Alberta Interveners.
File No.: 16889.
1982: September 28; 1983: October 13.
Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, McIntyre and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law — Administration of justice — Criminal law — Charges under Food and Drugs Act — Prosecution being conducted by agent of federal Attorney General — Whether or not federal Attorney General entitled to conduct prosecution of charges for violation of federal statutes — Constitution Act, 1867, s. 91(27) — Food and Drugs Act, R.S.C. 1970, c. F-27, ss. 8, 9, 26 — Criminal Code, R.S.C. 1970, c. C-34, s. 2.
The charges underlying this appeal were made under ss. 8 and 9 of the Food and Drugs Act. This federal Act, which provided for penalties for its violation, made no mention of the Criminal Code or of the criminal law power. The issue here was whether the federal Attorney General was entitled to conduct the prosecution of charges for violation of the Food and Drugs Act.
Held (Dickson J. dissenting): The appeal should be allowed.
Per Laskin C.J. and Ritchie, Estey and McIntyre JJ.: The Attorney General of Canada or his counsel, for the reasons given in Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206, was entitled to conduct prosecutions for violations of the Food and Drugs Act. It is only prescriptions under the Criminal Code that assign prosecutorial
[page 285]
power to the provincial attorney general, and that assignment depends on federal enactment. Further, federal penal provisions need not inevitably be assigned to the criminal law power in the s. 91(27) sense of the Constitution, for the legislation may have its own particularization with a penal sanction at the same time not part of the prohibitory criminal law. The issue of whether or not aspects of the Food and Drugs Act fell under the trade and commerce power, while others fell under the criminal law power, did not need to be addressed as the protection of food and other products from adulteration and the enforcement of standards were properly assigned to the criminal law.
Per Beetz and Lamer JJ.: The majority judgment in Attorney General of Canada v. Canadian National-Transportation, Ltd., [1983] 2 S.C.R. 206, is binding in this case.
[Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; Standard Sausage Co. v. Lee, [1933] 4 D.L.R. 501, supplemented by addendum at [1934] 1 D.L.R. 706, referred to; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914, distinguished.]
APPEAL from a judgment of the British Columbia Court of Appeal (1981), 129 D.L.R. (3d) 566, 32 B.C.L.R. 283, 64 C.C.C. (2d) 25, [1982] 1 W.W.R. 487, dismissing an appeal from a judgment of Berger J. dismissing an application for mandamus requiring Wetmore Co. Ct. J. to proceed with the trial of indictments. Appeal allowed, Dickson J. dissenting.
J. J. Robinette, Q.C., and D. H. Christie, Q.C., for the appellant.
Hamar Foster, for the respondent Kripps Pharmacy Ltd.
Paul Williamson and Jo Anne E. Prowse, for respondent Stephen Kripps.
E. R. A. Edwards, for the intervener the Attorney General of British Columbia.
William Henkel, Q.C., for the intervener the Attorney General for Alberta.
James C. MacPherson and George V. Peacock, for the intervener the Attorney General for Saskatchewan.
[page 286]
John Cavarzan, Q.C., for the intervener the Attorney General for Ontario.
Henri Brun, Lorraine Pilette and Jean-François Dionne, for the intervener the Attorney General of Quebec.
John H. Evans and Claude Pardons, for the intervener the Attorney General for New Brunswick.
The judgment of Laskin C.J. and Ritchie, Estey and McIntyre JJ. was delivered by
THE CHIEF JUSTICE—The issue in this case is the same issue that was canvassed in this Court in Attorney General of Canada v. Canadian National Transportation, Ltd., [[1983] 2 S.C.R. 206], heard immediately before the hearing in the present case. The issue presented there as here was whether the federal Attorney General was entitled to conduct the prosecution of charges for violation of federal statutes, different statutes in each case. In the case first heard, the charges engaged the federal Combines Investigation Act, R.S.C. 1970, c. C-23. In the present case, they concerned the federal Food and Drugs Act, R.S.C. 1970, c. F-27. The validity of the federal legislation is not challenged in either case.
Two questions were posed for the consideration of the Court. They are as follows:
1. Does the constitutional validity of Sections 8(a), 9(1) and 26 of the Food and Drugs Act depend upon section 91(27) of the British North America Act?
2. If so, is it within the competence of the Parliament of Canada to enact legislation as in Section 2 of the Criminal Code to authorize the Attorney General of Canada or his agents to prefer indictments and conduct proceedings in respect of alleged violations of the aforementioned provision?
The provisions involved in the charges under the Food and Drugs Act are ss. 8 and 9 which read as follows:
8. No person shall sell any drug that
(a) was manufactured, prepared, preserved, packed or stored under unsanitary conditions; ...
[…]
[page 287]
9. (1) No person shall label, package, treat, process, sell or advertise any drug in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety.
[…]
Penalties for violation of these provisions are contained in s. 26 of the Act and it is in these terms:
26. Every person who violates any of the provisions of this Act or the regulations is guilty of an offence and is liable
(a) on summary conviction for a first offence to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months, or to both, and for a subsequent offence to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both; and
(b) on conviction upon indictment to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding three years, or to both.
It is relevant to point out that no mention is made of the criminal law nor, indeed, of the Criminal Code. I have pointed out in my reasons in the earlier case that there seems to be a confusion in some Courts at least, between the Criminal Code and the criminal law. It is only prescriptions under the former that assign prosecutorial authority to the provincial Attorney General. Moreover, the assignment has depended and continues to depend on federal enactment. Federal legislation enacting penalties for violation of its provisions may be legislation in relation to the criminal law under s. 91(27) of the Constitution Act, 1867 although not included in the Criminal Code. Equally federal legislation, for example, bankruptcy laws, may have its own penal provisions without drawing nourishment from the Criminal Code or the criminal law. Moreover, although such legislation may incorporate by reference some provisions of the Criminal Code, it does not thereby become part of the Code or part of the criminal law. What is borrowed by way of reference remains part of
[page 288]
the legislative scheme into which it has been incorporated.
Federal penal provisions are not inevitably to be assigned to the criminal [sic] law in the s. 91(27) sense of the Constitution Act, 1867. They may have their own particularization, as would be the case, for example, in federal legislation of a regulatory character, which may have a penal aspect but not be at the same time part of the prohibitory criminal law.
This Court was concerned in Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914, with a proceeding relating to sections 6 and 25 and the regulations thereunder, of this Act. While these sections and the provisions herein involved are both found in Part II of the Act, very different issues arise in this appeal.
An examination of the various provisions of the Food and Drugs Act shows that it goes beyond mere prohibition to bring it solely within s. 91(27) but that it also involves a prescription of standards, including labelling and packaging as well as control of manufacture. The ramifications of the legislation, encompassing food, drugs, cosmetics and devices and the emphasis on marketing standards seem to me to subjoin a trade and commerce aspect beyond mere criminal law alone. There appear to be three categories of provisions in the Food and Drugs Act. Those that are in s. 8 are aimed at protecting the physical health and safety of the public. Those that are in s. 9 are aimed at marketing and those dealing with controlled drugs in Part III of the Act are aimed at protecting the moral health of the public. One may properly characterize the first and third categories as falling under the criminal law power but the second category certainly invites the application of the trade and commerce power.
However, it is unnecessary to pursue this issue and it has been well understood over many years that protection of food and other products against adulteration and to enforce standards of purity are
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properly assigned to the criminal law. Standard Sausage Co. v. Lee, [1933] 4 D.L.R. 501, supplemented by addendum at [1934] 1 D.L.R. 706 is a long standing application of these principles.
Coming then to the central issue canvassed in the case heard immediately before the present one, there is nothing I need add here to what I said there. The same considerations apply and for the reasons there given I would allow this appeal, declare that the Attorney General of Canada or his counsel may prefer indictments and conduct prosecutions for violations of ss. 8(a), 9(1) and 26 of the Food and Drugs Act and direct also the issuance of mandamus as requested by the appelant in the Supreme Court of British Columbia.
There will be no order as to costs to or against any of the parties or of the interveners.
The following are the reasons delivered by DICKSON J. (dissenting)—
I Background
By indictment dated March 7, 1980, Stephen Kripps and Kripps Pharmacy Ltd. were charged, inter alia with four counts alleging violations of s. 9(1) of the Food and Drugs Act, R.S.C. 1970, c. F-27, and one count alleging a violation of s. 8 (a) of the Food and Drugs Act. The Attorney General of British Columbia had offered to designate a representative of the Attorney General of Canada as agent of the provincial Attorney General for purposes of preferring this indictment. The federal Attorney General refused, and the indictment was signed by a John D. Cliffe as Agent for the Attorney General of Canada, purporting to act under authority of s. 2(2) of the Criminal Code which identifies the Attorney General of Canada or his lawful deputy as the "Attorney General" with regard to proceedings in respect of a violation or conspiracy to violate a federal Act other than the Criminal Code.
[page 290]
The issue that arises on this appeal is whether Mr. Cliffe was constitutionally authorized to prefer this indictment. The accused challenged Mr. Cliffe's right to do so on the ground that ss. 8 (a) and 9(1) of the Food and Drugs Act were criminal law under s. 91(27) of the Constitution Act, 1867 and legislation with regard to prosecution of alleged violations is a provincial responsibility under head 92(14), the administration of justice in the province. If these contentions are correct then s. 2 of the Criminal Code [hereinafter referred to as s. 2(2)], in so far as it authorizes an agent of the federal Attorney General to prefer indictments under s. 26 of the Food and Drugs Act for alleged violations of ss. 8(a) and 9(1) must be ultra vires.
County Court Judge Wetmore accepted these contentions and made the rulings requested by the accused. The Attorney General of Canada's application for mandamus was dismissed by Berger J. in the Supreme Court of British Columbia and this decision was confirmed by the British Columbia Court of Appeal.
The constitutional issues raised in this appeal are substantially identical to those in Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206, judgment in which is being delivered concurrently herewith. As phrased by order of the Chief Justice the questions in issue read as follows:
1. Does the constitutional validity of Sections 8(a), 9(1) and 26 of the Food and Drugs Act depend on section 91(27) of the British North America Act?
2. If so, is it within the competence of the Parliament of Canada to enact legislation as in Section 2 of the Criminal Code to authorize the Attorney General of Canada or his agents to prefer indictments and conduct proceedings in respect of alleged violations of the afore-mentioned provision?
The only difference between these questions and those in the Canadian National Transportation, Ltd. case is in the name and section numbers of the relevant Acts. This may, however, be a significant difference.
[page 291]
In the Canadian National Transportation, Ltd. case it was my view that s. 32(1) (c) of the Combines Investigation Act is legislation in relation to the federal trade and commerce power as well as in relation to the criminal law power. On the basis of R. v. Hauser, [1979] 1 S.C.R. 984, it is now settled that validity under a federal head of power other than s. 91(27) carries with it federal jurisdiction to legislate with regard to enforcement. Strictly speaking, once validity under the trade and commerce power had been established, it became irrelevant for purposes of testing the constitutionality of federally-authorized prosecution whether the section in question could also be valid as criminal law. Whatever the correct constitutional characterization of legislation to enforce criminal law, the principle of federal paramountcy meant that federal jurisdiction by virtue of s. 91(2) to legislate with regard to prosecution could not be displaced. That being so, the question of whether legislation with regard to prosecution of criminal offences comes under s. 91(27) or 92(14) could have no bearing on the outcome of the case. Federal enforcement would be valid whatever the answer. Consequently, my answer to the question of whether Parliament could authorize the Attorney General of Canada to prefer indictments and conduct prosecutions with regard to alleged violations of criminal law—the same answer I offered in Hauser—appears not as the ratio of my reasons in Canadian National Transportation, Ltd., but rather as an explanation of the importance of first considering the possibility of validity under a federal head of power other than s. 91(27).
In my view precisely the same considerations apply in this case. If ss. 8(a), 9(1) and 26 of the Food and Drugs Act depend on a federal head of power other than or in addition to s. 91(27), then there can be no doubt but that s. 2 of the Criminal Code is intra vires in so far as it purports to give the Attorney General of Canada exclusive authority
[page 292]
to prefer indictments and conduct proceedings in relation to alleged violations of these sections. It is only if validity depends solely on the federal criminal law power that the question of whether prosecution is an aspect of criminal law and procedure or of the administration of justice will finally arise for disposition by Court.
II The Constitutional Characterization of ss. 8(a) and 9(1) of the Food and Drugs Act
Sections 8(a) and 9(1) read as follows:
8. No person shall sell any drug that
(a) was manufactured, prepared, preserved, packed or stored under unsanitary conditions; ...
[…]
9. (1) No person shall label, package, treat, process, sell or advertise any drug in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety.
Section 26 provides:
26. Every person who violates any of the provisions of this Act or the regulations is guilty of an offence and is liable
(a) on summary conviction for a first offence to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months, or to both, and for a subsequent offence to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both; and
(b) on conviction upon indictment to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding three years, or to both.
All parties to this appeal agree that these sections can be upheld as criminal law. The Food and Drugs Act itself has been upheld as criminal law in Standard Sausage Co. v. Lee, [1933] 4 D.L.R. 501; addendum of Martin J.A. at [1934] 1 D.L.R. 706. Its anti-adulteration provisions have been similarly characterized in Berryland Canning Co. Ltd. v. The Queen, [1974] 1 F.C. 91 (T.D.)
[page 293]
In the Standard Sausage case the main purposes of the Act were characterized as the protection of the public from adulteration and the suppression of fraud, and these purposes, which clearly animate ss. 8(a), 9(1) and 26 fall squarely within the definition of criminal law advanced by Rand J. in Reference re Validity of s. 5(a) of the Dairy Industry Act (Margarine Reference), [1949] 1 S.C.R. 1, at pp. 49-50:
A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.
[…]
Is the prohibition then enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law, but they do not appear to be the object of the parliamentary action here.
See also Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914, at pp. 933-34, per Estey J.
All this leaves no doubt that ss. 8(a), 9(1) and 26 of the Food and Drugs Act do depend on the s. 91(27) criminal law power. The next question is whether they also depend on any additional federal heads of power.
Alhtough it is not a submission presented by the Attorney General of Canada, it has been suggested that at least s. 9(1) might be characterized as trade and commerce. In Canadian National Transportation, Ltd. I reviewed the law of trade and commerce and some of the considerations in setting the parameters of that power. With greatest respect to those holding a different view, I cannot see any justification for classifying s. 9(1)
[page 294]
as falling within federal jurisdiction by virtue of s. 91(2) of the Constitution Act, 1867. While the subject matter of s. 9(1) comes within the literal meaning of "trade and commerce" it is also squarely within the acknowledged exception articulated in Citizens Insurance Company of Canada v. Parsons (1881), 7 App. Cas. 96, namely that trade and commerce does not include the regulation of a single trade or business, an exception which in the Labatt case at p. 941 Estey J. explained was not affected by the fact that the industry or the impugned regulation had a nationwide geographic extent. Considered as economic rather than criminal legislation, s. 9(1) and the regulations enacted thereunder amount simply to the detailed regulation of the pharmaceutical industry and consequently fall within the portion of economic regulation allocated to the provinces by virtue of s. 92(13), property and civil rights in the province. They cannot therefore be justified by s. 91(2).
The Attorney General of Canada does submit that ss. 8(a) and 9(1) are legislation in relation to the federal government's peace, order and good government power, although he candidly admits that this is not his main submission. Even putting aside the preliminary question of whether this "residual" power can properly be invoked in relation to legislation unquestionably valid under another s. 91 head of power, I cannot accept this submission. Taken literally, the category of legislation for the peace, order and good government of Canada is so wide that it threatens completely to overwhelm the legislative competence of the provinces. As has been the case with s. 91(2), the regulation of trade and commerce, it has been necessary in interpreting this phrase for the courts to confine it to narrower limits than those suggested simply by the words themselves. In the Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, Beetz J., whose judgment on this point commanded majority support, reviewed the extensive jurisprudence on the subject and concluded that the peace, order and good government power should
[page 295]
be confined to justifying (i) temporary legislation dealing with a national emergency (p. 459) and (ii) legislation dealing with "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 the Labatt case, supra, at pp. 944-45, Estey J. divided this second heading into (i) areas in which the federal competence arises because the subject matter did not exist at the time of Confederation and cannot be classified as of a merely local and private nature and (ii) areas where the subject matter "goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole". This last category is the one enunciated by Viscount Simon in Attorney-General for Ontario v. Canada Temperance Federation, [1946] A.C. 193, at p. 205. The one preceding it formed the basis of the majority decision in Hauser that the Narcotic Control Act, R.S.C. 1970, c. N-1, came under the peace, order and good government power as dealing with "a genuinely new problem which did not exist at the time of Confederation".
It is clear that ss. 8(a) and 9(1) do not constitute legislation designed to deal with an emergency and no submissions were made to that effect. Nor can it be said that the problems they address are genuinely new and did not exist at the time of Confederation. As the addendum by Martin J.A. to the Standard Sausage case makes clear, legislation with regard to the subject matter of ss. 8(a) and 9(1) can be traced back not only through the early nineteenth century but all the way back to the Statute of the Pillory and Tumbrel, and of the Assize of Bread and Ale, 51 Hen. III, Stat. 6, which was enacted in 1266. As the respondent points out, such legislation is even to be found mentioned in Shakespeare, who has the apothecary in Romeo and Juliet answer Romeo's request for a fatal potion in Act V, Scene 1 as follows:
Such mortal drugs I have; but Mantua's law Is death to any he that utters them.
[page 296]
Finally, it cannot be maintained that ss. 8(a), 9(1) and 26 address a subject that goes beyond local or provincial interest and must from its intrinsic nature be the concern of the Dominion as a whole, as that concept has been interpreted in the cases. Their subject matter would clearly not satisfy the requirements cited by Beetz J. in the Reference re Anti-Inflation Act, supra, nor would it come within the criteria proposed by Hogg, Constitutional Law of Canada (1977), at p. 261, in a passage cited by Estey J. in Labatt, supra, at p. 945:
These cases suggest that the most important element of national dimension or national concern is a need for one national law which cannot realistically be satisfied by cooperative provincial action because the failure of one province to cooperate would carry with it grave consequences for the residents of other provinces. A subject matter of legislation which has this characteristic has the necessary national dimension or concern to justify invocation of the p.o.g.g. power.
The same factors that prevent ss. 8(a) and 9(1) from qualifying as "general regulation of trade affecting the whole Dominion" also stand in the way of characterizing them as legislation in relation to peace, order and good government under the Canada Temperance test. Aside from their purported application throughout Canada and from certain financial and logistical difficulties in enacting comparable provincial legislation, there is nothing inherently "national" in these sections. And as is demonstrated by a line of cases stretching from Re Insurance Act 1910 (1913), 48 S.C.R. 260, affirmed [sub nom. Attorney-General for Canada v. Attorney-General for Alberta (Insurance Reference)] [1916] 1 A.C. 588 to the Labatt case, supra, neither of these criteria separately or together is sufficient to validate a federal enactment under the peace, order and good government power.
On the basis of all this I come to the conclusion that the sections of the Food and Drugs Act in
[page 297]
question are dependent and solely dependent on the federal criminal law power. As a consequence the question that was not decided in R. v. Hauser and, in my opinion, was not necessary for the decision in Attorney General of Canada v. Canadian National Transportation, Ltd. does indeed arise here. Is it within the competence of Parliament to authorize the Attorney General of Canada or his agents to prefer indictments and to conduct proceedings in respect of alleged violations of federal criminal legislation?
III Criminal Law and the Administration of Justice
Up until 1969, s. 2(2) of the Criminal Code defined "Attorney General" only in relation to proceedings under the Criminal Code and held it to mean the Attorney General of the province in which proceedings were taken, except with respect to the Northwest Territories and the Yukon Territory where it meant the Attorney General of Canada.
In 1969 this definition was expanded by 1968-69 (Can.), c. 38, s. 2(1):
"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;
According to Hauser, s. 2(2)(b) is to be read not simply as purporting to permit the federal Attorney General to prefer indictments and conduct proceedings for violations of the enactments to which it applies, but as establishing him to be the
[page 298]
"Attorney General" for such proceedings to the exclusion of any provincial Attorney General. By its terms. s. 2(2)(6) applies only to prosecutions under federal enactments other than the Criminal Code, but a finding of validity with regard to legislation like ss. 8(a), 9(1) and 26 of the Food and Drugs Act, which depend solely on the federal criminal law power, would have grave implications for provincial prosecutorial authority even under the Criminal Code. The Attorney General of Canada takes the position that the designation of the provincial Attorney General as the "Attorney General" for purposes of the Criminal Code is not constitutional, but statutory, the result of the federal Parliament exercising its legislative competence to delegate prosecutorial authority to a provincial official. If the federal Parliament has the authority to enact this delegation, then it will have the same authority at any time to terminate it.
The Attorney General of Canada makes the same submission in this case as in Hauser (see p. 1017):
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 Constitution Act, 1867. 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.
The federal position is that s. 2(2) is one of many sections in the Criminal Code dealing with who may prosecute in criminal cases, and in what manner, and when, and that as such it should be supported under head 91(27) as legislation in relation to criminal procedure.
In Hauser I dealt with this argument in these terms, at p. 1017:
[page 299]
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....
In Hauser I sought to place the question in issue within its historic framework. A page of history may illuminate more than a book of logic. I also sought to review the relevant authorities. I do not here intend to go over this material again. I do note, however, that it is now well settled that the scope of "Criminal Law" and "Procedure in Criminal Matters" is narrowed by the allocation to the provinces of jurisdiction over the "Administration of Justice" in all matters civil and criminal. In Di Iorio v. Warden of Montreal Jail, [1978] 1 S.C.R. 152, this Court determined, by a majority of seven to two, that the "administration of justice" includes the administration of criminal justice. That point is now, or should be, beyond cavil, stare decisis being an indispensable component of the appellate jurisdiction of this Court. Mr. Justice Pigeon, Mr. Justice Beetz and I each wrote judgments to that effect: see p. 192, per Pigeon J.; pp. 197-200, per Dickson J.; p. 223, per Beetz J.; Laskin C.J., de Grandpré J. concurring, voiced a dissenting view; see p. 180. Pigeon J., speaking for himself, Martland, Judson and Ritchie JJ., Beetz J. agreeing in substance, said at p. 192:
It is obvious that, in s. 91(27) of the B.N.A. Act, the scope of "Criminal Law" and "Procedure in Criminal Matters" is narrowed by the allocation to the provinces of jurisdiction over the "Administration of Justice" in all matters civil and criminal, which has consistently been held to include the detection of criminal activities.
Mr. Justice Beetz said, at p. 223:
Before Confederation, the provinces were in charge of the administration of justice, including criminal justice. It was contemplated by s. 91(27) of the British North
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America Act, 1867, that criminal law, substantive and procedural, would come under the exclusive legislative authority of the Parliament of Canada. But subject to this provision and to the paramountcy of federal law enacted under primary or ancillary federal jurisdiction, the provinces were to remain responsible in principle for the enforcement of criminal law and to retain such power as they had before with respect to the administration of criminal justice. They continued in fact to police their respective territories, to investigate crime, to gather and to keep records and informations relating to crime, to prosecute criminals and to supervise police forces, sheriffs, coroners, fire commissioners, officers of justice, the summoning of juries, recognizances in criminal cases, and the like. Pertaining to such functions is the power to make laws relating to public and reformatory prisons, expressed in s. 92(6) of the Constitution. Some of those responsibilities are executive in nature; but to carry them required instrumentalities which had to be regulated, financed, abolished and reconstituted and the jurisdiction and powers of which had to be defined by legislation. Such legislation could not have been enacted unless the power to make laws for the administration of criminal justice was vested in the provincial legislatures. That is why s. 92(14) of the Constitution does not distinguish between civil and criminal justice: the natural meaning of the expression "the administration of justice" is broad enough to encompass both ....
As this passage amply demonstrates, the provinces have in practice administered the criminal justice system in the broadest sense. The Attorney General is the chief law enforcement officer of the Crown in each province; he has broad responsibilities for most aspects of the administration of justice, including the court system, the police, criminal investigation, prosecutions and corrections. The provincial police are answerable only to the Attorney General, as are the provincial Crown Attorneys who conduct the great majority of criminal prosecutions in Canada. There is no support in the Constitution nor in the decisions of this Court for the notion that the words "administration of justice" should be qualified in such manner that "justice" is taken to mean merely "civil justice". There is no need to reduce the legislation to
[page 301]
futility by reading into s. 92(14) a limitation not therein expressed.
It should be noted, as Spence J. observed in Hauser, that in s. 92(14) the words "civil" and "criminal" are expressly mentioned and contrasted; if any attenuation of the word "justice" had been intended the draftsmen could readily have inserted the word "civil" before "justice".
The Attorney General of Canada argues that "Provincial legislatures have never purported to exercise their legislative jurisdiction to make laws pursuant to head 14 of section 92". In reply the Attorney General for Ontario cites the Crown Attorneys Act, R.S.O. 1980, c. 107, which in s. 12 lists among the Crown Attorney's functions in the local administration of justice, the duties to:
12....
(b) conduct, on the part of the Crown, preliminary hearings of indictable offences and prosecutions for indictable offences,
(i) at the sittings of the Supreme Court where no law officer of the Crown or other counsel has been appointed by the Attorney General,
(ii) at the court of general sessions of the peace,
(iii) at the county or district court judges' criminal court, and
(iv) before provincial judges in summary trials of indictable offences under the Criminal Code (Canada),
in the same manner as the law officers of the Crown conduct similar prosecutions at the sittings of the Supreme Court, and with the like rights and privileges, and attend to all criminal business at such courts;
[…]
(d) watch over cases conducted by private prosecutors and, without unnecessarily interfering with private individuals who wish in such cases to prosecute, assume wholly the conduct of the case where justice towards the accused seems to demand his interposition;
[page 302]
(e) where in his opinion the public interest so requires, conduct proceedings in respect of any provincial offence or offence punishable on summary conviction;
[…]
(g) where in his opinion the public interest so requires, conduct appeals to the county or district court for provincial offences and offences punishable on summary conviction;
To this the Attorney General for Ontario might have added the Ministry of the Attorney General Act, R.S.O. 1980, c. 271, which in s. 5 provides that the Attorney General:
5. …
(d) shall perform the duties and have the powers that belong to the Attorney General and Solicitor General of England by law or usage, so far as those duties and powers are applicable to Ontario, and also shall peform [sic] the duties and have the powers that, up to the time of the British North America Act, 1867 came into effect, belonged to the offices of the Attorney General and Solicitor General in the provinces of Canada and Upper Canada and which, under the provisions of that Act, are within the scope of the powers of the Legislature;
Similar legislation is of course in force in other provinces.
With specific reference to s. 12(d) of the Ontario Crown Attorneys Act, I note further that in Re Bradley and The Queen (1975), 24 C.C.C. (2d) 482, Arnup J.A. speaking for the Ontario Court of Appeal said, at p. 489:
I do not regard that section as being legislation in relation to criminal procedure, which can be enacted only by Parliament, but rather as legislation in relation to the administration of justice, which is in the provincial sphere. The section itself puts cl. (d) as a specific directive within the broad ambit of the Crown Attorney's obligation to "aid in the local administration of justice".
This observation could of course be extended to the entirety of s. 12, and in my view the characterization as legislation with regard to the administration of justice would apply equally to any enactment dealing with the general conduct and supervision of criminal proceedings.
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Beyond such enactments there has never been any need for the provinces to assert, in statutory language, their claim to prosecutorial primacy in criminal cases. Federal legislation has for over one hundred years expressly recognized, and still continues to recognize, in s. 2(2) of the Criminal Code, provincial authority in criminal prosecutions. The pre-Confederation practices have continued without the necessity of further provincial legislation.
The power to initiate and conduct criminal prosecutions is a central aspect of the administration of justice; indeed it is the power to decide whether and when to enforce the criminal law in a particular province. This jurisdiction is given exclusively to the provinces under s. 92(14). In my view, s. 2(2) is directed to the "administration of justice in the province", and is not legislation in relation to criminal procedure.
If, as the Attorney General of Canada contends, the provinces have for over one hundred years been exercising, if not usurping, a jurisdiction not properly theirs, the provinces would seem to have been blissfully unaware of the fact, so also the Federal Crown. One can look in vain among the Confederation Debates, subsequent case law, the text books, other writings on the Constitution for 'any firm assertion on the part of the Attorney General of Canada that the primary and, indeed, exclusive, prosecutorial authority in criminal cases rests, and has always rested, with the Federal Crown. Where is there a federal statement to this effect: "We, by virtue of s. 91(27) of the Constitution, have suffered you, the provinces, to prosecute criminal cases but we, at any time, can deny you that right". The first such bald assertion so far as I am aware, dates back only to Hauser and 1979, the so-called "broad proposition" floated by the Attorney General of Canada in that case and at that time.
An interpretation of s. 92(14) which includes prosecutions within the administration of justice does not strip the federal authorities of all jurisdiction to enforce their own laws. I am quite prepared to accept the proposition that in respect of heads of
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federal power other than head 91(27) there is implicit an inherent authority in the federal executive to enforce statutes validly enacted by Parliament in fields such as revenue, customs, fisheries and bankruptcy, and as my decision in Canadian National Transportation, Ltd. indicates, trade and commerce. Such authority extends to initiating and conducting any litigation required for enforcement purposes. A different situation obtains, however, with respect to s. 91(27), because s. 92(14) of the Constitution confers jurisdiction over the administration of criminal justice on the provinces.
It is argued that s. 92(14) makes no special mention of the administration of criminal justice; that there is no "special nexus" between s. 92(14) and s. 91(27); and that, for these reasons, if s. 92(14) makes the provinces constitutionally responsible for criminal prosecutions they must be equally in charge of prosecutions resting on violations of federal legislation other than criminal law. I cannot agree.
Section 92(14) does give the provinces authority over the administration of civil justice, but this does not reflect a division of powers between the two levels of government in the same sense as in the criminal field. The provinces do not have any authority to enact substantive criminal law, but they obviously do have a great deal of authority to enact substantive civil law. To say that the federal criminal power encompasses the investigation and prosecution of criminal offences would leave virtually nothing in the provincial authority to administer criminal justice. In contrast, to say that federal non-criminal power encompasses the investigation and prosecution of federal non-criminal offences would leave the provinces with extensive authority to administer civil justice. In order to give a meaningful interpretation to both s. 92(14) and the federal heads of power, it is essential to conclude that s. 92(14) gives the provinces authority to investigate and prosecute criminal offences, but this is not necessary in respect of federal non-criminal offences. I have already indicated that,
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unless a contrary intention is apparent, authority to make laws should also carry with it authority to enforce those laws. I do not think s. 92(14) displaces that assumption for federal non-criminal law. It only does so in respect of criminal laws. Indeed, separation of substantive and administrative responsibility is impractical in most areas of federal jurisdiction other than criminal law. The administration of legislation enacted under heads of power in s. 91 involving interprovincial or international dimensions could hardly have been left to the provinces.
There is, however, a special relationship between s. 92(14) and s. 91(27), a relationship that cannot be said to obtain between s. 92(14) and the other heads of power in s. 91. Sections 91(27) and 92(14) together effect a careful and delicate division of power between the two levels of government in the field of criminal justice. Constitutional authority to enact substantive criminal law—the determination of what is a crime and how it should be punished, as well as authority to pass laws in relation to procedure in criminal matters is vested in the federal government by s. 91(27). Authority over the administration of criminal justice, including the constitution, maintenance and organization of courts of criminal jurisdiction, is given to the provinces by s. 92(14). The singling out and the express conferral on the provinces under s. 92(14) of responsibility to constitute, maintain and organize courts for the administration of one particular area of federal law, namely, criminal law, is unique. For this reason also there is a "special nexus" between ss. 92(14) and 91(27).
I remain unshaken in the view I expressed in Hauser that the pre-Confederation tradition of
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decentralized control over the administration of the criminal justice system in general, and over the initiation and conduct of criminal prosecutions in particular, was intended to be carried forward into the Canadian Confederation through s. 92(14). The ultimate decision as to whether or not to prosecute a particular individual and, if so, in respect of which offences, is one which requires a careful weighing of a multitude of local considerations, including the seriousness of the conduct in light of community norms, the likely impact on the individual of bringing a prosecution, the likely benefit to the community of doing so, the likelihood of a recurrence of the conduct, and the availability of alternative courses of action, for example, diversion or special rehabilitation programs. Assessing these factors obviously requires an understanding of conditions prevalent in the community in which the criminal conduct occurred.
I cannot accept that in 1867 the draftsmen of the Canadian Constitution intended that such assessment should be made, or even supervised, by the federal government. They were not thinking in terms of a centralized prosecutorial authority. This historic decentralization was at least in part technologically inevitable. Considering the geographical enormity of the Canadian nation even prior to 1871 when British Columbia entered Confederation, and the state of railroads, telegraph and other technology in 1867, centralized control of prosecutorial discretion was not even possible in that era. Lack of adequate road systems and rail systems in 1867, the absence of telephone, telegraph and air connections and, compendiously speaking, the primitive state of communications, all combine to make it clear that it was not within the contemplation of the Fathers of Confederation that ultimate constitutional authority for the conduct and prosecution of all criminal offences—the multitude of cases arising daily in the hundreds of communities in what was then Canada—would centre in Ottawa.
But this local control over criminal prosecutions makes practical as well as historic sense. As the
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Attorney General of British Columbia has noted, the need for local sensitivity in the enforcement of the criminal law has been supplemented historically, by a desire to keep law enforcement out of the hands of the central government, the origin of this desire being well explained, in the Ontario context, by F. Armstrong and K. L. Chasse, The Right to an Independent Prosecutor (1975), 28 C.R.N.S. 160, at pp. 162-63:
The office of the County Attorney was created amidst a history wherein the Attorney General of England had intentionally never been accorded a place in the British cabinet, a fact of profound constitutional significance which reflected the determination in England that criminal prosecutions would not be politically tainted ....
This office was consistent with that characteristic of the administration of criminal justice which has throughout the history of the common law served to keep the administration of justice out of the hands of the central government. Safeguards, perhaps constitutional in nature, were provided by the appointment of local officials to take care of the administration of justice ....
Throughout the history of the common law the administration of criminal justice was established as the local administration of criminal justice, complete with local sheriffs, grand and petit juries made up of local residents, local trials and later, local police forces. In Ontario there are still local Crown Attorneys.
Blind centralism can be no answer. I would adopt the following submission of the Attorney General for Saskatchewan which, in my view, expresses admirably the constitutional position:
The balance struck between sections 91(27) and 92(14) of the Constitution Act is a reflection of the faith the framers of the Constitution placed in a cooperative, federalist approach to addressing an issue both of national dimension and of local concern. On the one hand, Canada's founders wished to guard against a proliferation of different, and possibly inconsistent, regional criminal enactments. On the other hand, they wanted to ensure that centrally enacted criminal laws were flexibly and sensitively administered in light of local needs and conditions. Their solution was to divide jurisdiction over criminal justice, placing the power to enact criminal prohibitions and procedures in the hands of the federal
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Parliament while giving to the provinces the authority to administer those laws in response to local circumstances.
[…]
Over the years, the fundamental wisdom of these founders has been borne out. Parliament has effectively exercised its jurisdiction to ensure national uniformity or criminal laws and procedures, while each of the provincial Legislatures, through its Attorney General, has acted to ensure that those laws and procedures were applied responsibly and responsively to individual cases. The field of criminal justice has proved to be one of federalism's quiet success stories, providing for a "subtle balance" of national interests with local needs and concerns.
Now it is suggested that this balance can be upset.
Provincial authority to administer the criminal justice system is a matter of constitutional law, not of federally delegated administrative powers. The authority flows from the ordinary meaning of the words "The Administration of Justice in the Province". Within any signification fairly to be imputed to these words as they stand in the Constitution, I would hold that the provinces have exclusive jurisdiction under s. 92(14) to enforce legislation enacted under s. 91(27) and generally to administer the criminal justice system, including authority to prefer indictments and conduct criminal proceedings.
I would hold that s. 2(2) of the Criminal Code is ultra vires in so far as it purports to give the Attorney General of Canada authority to institute and conduct proceedings in respect of any Act of Parliament that depends solely on the criminal law power in s. 91(27).
Conclusion
I would answer the constitutional questions raised in this appeal as follows:
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Question 1: Yes, ss. 8(a), 9(1) and 26 of the Food and Drugs Act depend solely on s. 91(27) for their validity as federal legislation.
Question 2: No. It is not within the competence of Parliament to authorize the Attorney General or his agents to prefer indictments and conduct proceedings in respect of violations of these sections.
As a consequence, I would dismiss this appeal. The following are the reasons delivered by
BEETZ AND LAMER JJ.—We feel bound by the majority judgment which is being delivered today by this Court in the case of Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206.
We would accordingly allow the appeal, set aside the judgments of the British Columbia Court of Appeal and of the Supreme Court of British Columbia and direct the issuance of mandamus as requested by the appellant.
There will be no order as to costs to or against any of the parties or to or against the interveners.
Appeal allowed, DICKSON J. dissenting.
Solicitor for the appellant: Roger Tassé, Ottawa.
Solicitor for the respondent Kripps Pharmacy Ltd.: H. R. K. Foster, Victoria.
Solicitors for the respondent Stephen Kripps: Prowse, Williamson, Vancouver.
Solicitor for the intervener the Attorney General of British Columbia: Richard H. Vogel, Victoria.
Solicitor for the intervener the Attorney General for Alberta: Ross W. Paisley, Edmonton.
Solicitor for the intervener the Attorney General for Saskatchewan: Richard F. Grosse, Regina.
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Solicitor for the intervener the Attorney General for Ontario: A. Rendall Dick, Toronto.
Solicitor for the intervener the Attorney General of Quebec: Daniel Jacoby, Quebec City.
Solicitor for the intervener the Attorney General for New Brunswick, Gordon F. Gregory.