COMMENT
CHRONIQUE DE LEGISLATION
Balancing the Powers to Prosecute in Canada:
Comment on A.G. Canada v. C.N. Transport
and R. v. Wetmore, Kripps Pharmacy
Nancy E. Brown*
The majority opinions of Laskin C.J.C. in
A.G. Canada v. C.N. Transport and R. v. Wet-
more, Kripps Pharmacy held that the consti-
tutional power to prosecute all federal offences,
includingthose enacted underthe section 91(27)
criminal law power, lies with the federal gov-
ernment. As provincial authorities have tra-
ditionally prosecuted section 91(27) offences,
notably Criminal Code offences, these hold-
ings ostensibly give to Parliament the power
to change dramatically the status quo. The
author examines the arguments adopted in
both opinions. While she concludes that the
minority position of Dickson J. is the more
defensible view, she also suggests that a dis-
tribution of power based upon the transprov-
incial nature of the offence would provide a
more rational balance.
Dans PG. Canada c. C.N. Transport et R. c.
Wetmore, Kripps Pharmacy, la Cour supreme
du Canada, par la voix du juge en chef Las-
kin, a majoritairement ddcid6 qu’il apparte-
nait A la Couronne fed6rale de poursuivre toute
personne ayant commis une infraction cr e
en vertu d’un chef de comp6tence f-d6ral. Ces
deux jugements reconnaissent donc au Par-
lement fed6ral le pouvoir de rompre avec la
tradition ayant laiss6 A la Couronne provin-
ciale la charge d’appliquer le Code criminel.
Se ralliant aux opinions dissidentes du juge
Dickson, l’auteure propose de plus une r~gle
d’interprtation suivant laquelle seul le ca-
ract~re transprovincial d’une infraction de-
vrait 8tre attributifde la comp6tence fed6rale
de poursuivre.
*B.A.Sc. (Toronto), LL.B. (McGill); presently articling with the Federal Department of Jus-
tice, Vancouver. The author wishes to thank Professor Suzanne Birks of McGill and the editors
of the McGill Law Journal for their helpful suggestions. Any errors, omissions or infelicities
are naturally the author’s own. The opinions expressed are those of the author and do not
necessarily reflect the views of the Department of Justice.
McGill Law Journal 1984
Revue de droit de McGill
700
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[Vol. 29
Synopsis
Introduction
I. Background
A. The Division of Powers
B. Historical Perspective – Legislation and Practice
C. Authorities
II. C.N. Transport and Kripps Pharmacy
A. The Majority Opinion of Laskin C.J.C.
B. The Dissenting View of Dickson J.
C. The “Transprovincial” Solution
Conclusion
Introduction
The executive power to control the prosecution of offences can be an
important tool in the implementation of government policy., Effective law
enforcement may depend on whether the appropriate level of government
‘This executive power typically includes the powers to enter a stay of proceedings, take over
the conduct of proceedings, prefer indictments, control the mode of trial and, ultimately, control
all appeals. For a review of these prosecutorial powers in Canada, see the judgment of Dickson
J. in R. v. Hauser [1979] 1 S.C.R. 984, 1010-3, (1979) 98 D.L.R. (3d) 193 [hereinafter cited to
S.C.R. as Hauser], and Gourlie, Role of the Prosecutor: Fair Minister of Justice with Firm
Convictions (1982) 16 U.B.C. L. Rev. 295, 301-2.
A treatment of the two other related executive powers of policing and investigation are in
general beyond the scope of this comment. Of course, the issue of which level of government
has constitutional authority to provide for these powers is related to the issue of prosecutorial
authority. In Di Iorio v. Warden of the Montreal Jail [1978] 1 S.C.R. 152, (1976) 33 C.C.C.
(2d) 289 [hereinafter cited to S.C.R. as Di lorio], Laskin C.J.C. and Dickson J. took positions
on the issue of authority over investigation similar to the ones they hold on prosecutorial
authority. The majority finding in Di Iorio was that the provinces have constitutional authority
over the administration of criminal justice and therefore can provide for criminal investigation.
1984]
CHRONIQUE DE LEfGISLATION
exercises this power for any given offence. 2 The determination, then, of
whether the provincial or federal government has constitutional authority
to provide for criminal prosecutions is crucial.
In 1979, the Supreme Court of Canada in R. v. Hauser3 failed to resolve
the issue. The Court concluded that the authority to provide for prosecution
of offences corresponds generally to the constitutional powers to create those
offences as found in sections 91 and 92 of the Constitution Act, 1867.4 The
Court answered, in the affirmative, only the narrow question of whether
Parliament has authority over prosecutions for violations of federal enact-
ments which do not depend for their validity on the criminal law power in
section 91(27). The question left unanswered was which level of government
has authority over the prosecution of offences which do depend for their
validity solely on the federal criminal law power.
In Attorney General of Canada v. Canadian National Transportation,
Ltd5 and R. v. Wetmore, Kripps Pharmacy Ltd and Kripps,6 the Supreme
Court of Canada divided on the question. For the majority in both cases,
Laskin C.J.C. held that the power to legislate in respect of all criminal
prosecution is vested exclusively in Parliament under section 91(27). In his
dissenting opinion, Dickson J., as he then was, contended that the provinces
under section 92(14) have exclusive jurisdiction over the prosecution of all
federal offences which are in pith and substance criminal law.
The implications of the majority view are far-reaching. Prosecutors of
offences under the Criminal Code7 have historically been provincial officials.
The majority holding of Laskin C.J.C. ostensibly gives to Parliament the
power to change this status quo. Parliament could invest the federal Attorney
2For example, it has been argued that offences under the Combines Investigation Act, R.S.C.
1970, c. C-23, must be prosecuted by the federal Attorney General because the impugned
activity is national in scope. See R. v. Hoffmann-La Roche Ltd (1980) 28 O.R. (2d) 164, 188,
(1980) 53 C.C.C. (2d) 1 (H.C.) (per Linden, J.). In Hauser, supra, note 1, 1032, 1049, Dickson
J. argued that prosecution of criminal offences should be maintained in provincial hands
because flexibility of administration in response to local conditions is essential.
3Supra, note 1. For a fuller discussion of the finding in Hauser, see infra, notes 29 et seq.
and accompanying text.
430 & 31 Vict., c. 3 (U.K.). For convenience, all subsequent references to a section 91 or
section 92 head of power will not be supported by a citation and may be assumed to be to the
Constitution Act, 1867.
5(1983) 7 C.C.C. (3d) 449, (1983) 3 D.L.R. (4th) 16, (1983) 49 N.R. 241 [hereinafter cited
to C.C.C. as C.N. Transport].
to C.C.C. as Kripps Pharmacy].
6(1983) 7 C.C.C. (3d) 507, (1983) 2 D.L.R. (4th) 577, (1983) 49 N.R. 286 [hereinafter cited
7R.S.C. 1970, c. C-34, as amended [hereinafter Criminal Code].
McGILL LAW JOURNAL
[Vol. 29
General with prosecutorial power by simple legislation. This comment ex-
amines closely the arguments adopted in both opinions, and finds the ma-
jority position to be the weaker. Several remarks of the learned Chief Justice
cast uncertainty upon his reasoning and suggest that his finding should be
read narrowly. The comment explores briefly the reconciling position which
distributes power according to the transprovincial nature of the offence in
question.
I. Background
A. The Division of Powers
Sections 91 and 92 of the Constitution Act, 1867 fail to allocate in an
unequivocal fashion the power to prosecute criminal offences. Section 91(27)
grants to Parliament the exclusive power to legislate in respect of:
The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction,
but including the Procedure in Criminal Matters.
The view that Parliament is empowered to provide for the prosecution of
criminal offences is supported by the federal power to create such offences.
Federal jurisdiction over criminal procedure reinforces this position.
Section 92(14) gives to the provinces exclusive authority to legislate in
relation to:
The Administration of Justice in the Province, including the Constitution,
Maintenance and Organization of Provincial Courts, both of Civil and of Crim-
inal Jurisdiction, and including Procedure in Civil Matters in those Courts.
The interpretation in favour of provincial authority over criminal prose-
cution is that “Administration of Justice” includes criminal prosecution,
and thus should be read as limiting section 91(27).
B. Historical Perspective – Legislation and Practice
Although not decisive, a review of past legislation in respect of criminal
prosecution and an examination of which level of government has in fact
prosecuted criminal offences has some importance. As Dickson J. reiterated
in Hauser,8 it is not “that jurisdiction in the strict sense can come through
8Supra, note 1, 1028.
1984]
COMMENT
consent or laches; however, history and governmental attitudes can be help-
ful guides to interpretation”. 9
Prior to Confederation, the Attorney General for each colony had the
responsibility for the prosecution of criminal offences. These powers re-
mained vested in the provincial Attorneys General by virtue of sections 129
or 135 of the Constitution Act, 1867.10
For the one hundred years from Confederation to the Criminal Law
Amendment Act, 1968-69,II Parliament passed legislation which appeared
to acknowledge this provincial authority. The first federal enactment on
criminal procedure in 1869, by the plain meaning of its words, suggests a
9Di Jorio, supra, note 1, 206. Dickson J. also said in Kripps Pharmacy, supra, note 6, 519:
“A page of history may illuminate more than a book of logic.” Compare the remarks of Estey
J.A., as he then was, in R. v. Pelletier (1974) 4 O.R. (2d) 677, 691, (1974) 18 C.C.C. (2d) 516
(C.A.) [hereinafter cited to O.R. as Pelletier] (leave to appeal to the S.C.C. refused [1974] S.C.R.
X).
‘Section 129 provides that:
The relevance of section 135 is questionable, at least with regard to legislative jurisdiction. See
C.N. Transport, supra, note 5, 459-60, 469, per Laskin C.J.C.
“S.C. 1968-69, c. 38, s.2.
Section 135 states:
Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia,
or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction,
and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Ad-
ministrative, and Ministerial, existing therein at the Union, shall continue in Ontario,
Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not
been made; subject nevertheless (except with respect to such as are enacted by or
exist under Acts of the Parliament of Great Britain or of the Parliament of the
United Kingdom of Great Britain and Ireland,) to be repealed, abolished, or altered
by the Parliament of Canada, or by the Legislature of the respective Province,
according to the Authority of the Parliament or of that Legislature under this Act.
Until the Legislature of Ontario or Quebec otherwise provides, all Rights, Powers,
Duties, Functions, Responsibilities, or Authorities at the passing of this Act vested
in or imposed on the Attorney General, Solicitor General, Secretary and Registrar
of the Province of Canada, Minister of Finance, Commissioner of Crown Lands,
Commissioner of Public Works, and Minister of Agriculture and Receiver General,
by any Law, Statute, or Ordinance of Upper Canada, Lower Canada, or Canada,
and not repugnant to this Act, shall be vested in or imposed on any Officer to be
appointed by the Lieutenant Governor for the Discharge of the same or any of
them; and the Commissioner of Agriculture and Public Works shall perform the
Duties and Functions of the Office of Minister of Agriculture at the passing of this
Act imposed by the Law of the Province of Canada, as well as those of the Com-
missioner of Public Works.
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[Vol. 29
simple affirmation of the pre-Confederation powers. 12 Section 3(b) of the
Criminal Code, 189213 defined Attorney General as:
the Attorney-General or Solicitor-General of any province in Canada in which
any proceedings are taken under this Act, and, with respect to the North-west
Territories and the district of Keewatin, the Attorney-General of Canada…
This definition remained virtually unchanged for seventy-five years.
Of course it is possible to take the view that by such legislation Par-
liament delegated, or at least purported to delegate, prosecutorial authority
over criminal offences to the provincial Attorneys General. Not surprisingly,
this was the view espoused by Laskin C.J.C. in C.N. Transport. The argument
is that it was merely “practical accomodation” to allow the pre-Confeder-
ation practice to continue, and that federal affirmation of this practice did
not in any way jeopardize federal authority over the prosecution of federal
criminal law.’ 4 In Hauser, Spence J. went even further and suggested that
it was only because of this federal legislation that the provincial Attorneys
General had authority at all to prosecute criminal offences.15
Legislation by the provinces in the field of criminal prosecution is the
subject of some controversy. The Attorney General of Canada alleged in
Kripps Pharmacy and C.N. Transport that the provinces have never at-
tempted to assert any legislative authority over criminal prosecutions,’ 6 and
Laskin C.J.C. apparently accepted this submission.’ 7
The assertion is not entirely true. There are indeed provincial statutes
in this field, albeit comparatively recent ones for the most part, which lay
claim to provincial authority. For example, two Ontario statutes, noted by
Dickson J. in Kripps Pharmacy,’8 clearly aim to delegate to provincial of-
ficials authority in criminal prosecutions. These are the Ministry of the
12See, e.g., An Act respecting Procedure in Criminal Cases, and other matters relating to
Criminal Law, S.C. 1869, c. 29, s. 28. For a discussion of this and other contemporaneous
federal legislation, see C.N. Transport, supra, note 5, 460, per Laskin C.J.C. and Hauser, supra,
note 1, 1031-2, per Dickson J.
13S.C. 1892, c. 29, s. 3(b).
14C.N. Transport, supra, note 5, 463. See also the learned Chief Justice’s remarks at p. 471.
15Hauser, supra, note 1, 1003.
16Kripps Pharmacy, supra, note 6, 521.
17C.N. Transport, supra, note 5, 463. See also his remarks at p. 461.
18Supra, note 6, 521-2.
19841
CHRONIQUE DE LGISLATION
Attorney General Act’ 9 and the Crown Attorneys Act.20 Further, as Dickson
J. also noted: “Similar legislation is of course in force in other provinces.”’21
The view that the provinces never asserted their authority prior to these
enactments is countered with the statement that there simply has never
been a need for such legislation. The provinces have held prosecutorial
authority since Confederation, and federal legisation recognized such au-
thority for over one hundred years. Pre-Confederation practice simply con-
tinued without the need of further provincial legislation. 22
Both the preceding arguments are glaring examples of circular reason-
ing. If the provinces have always had the authority, then specific legislation
was never required and federal legislation has merely “recognized” this
provincial power. If Parliament has had since Confederation authority over
criminal prosecution, then this power has merely been delegated to the
provinces for the one hundred years following Confederation. Both state-
ments merely beg the ultimate question.
19R.S.O. 1980, c. 271. Section 5(d) of this Act states that the Attorney General of Ontario
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 perform 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;
This provision was first passed in The Department of Justice Act, 1968-69, S.O. 1968-69, c. 27,
s. 5(d).
20R.S.O. 1980, c. 107. Section 12(b) of this Act provides:
The Crown attorney shall aid in the local administration ofjustice and perform the
duties that are assigned to Crown attorneys under the laws in force in Ontario, and,
without restricting the generality of the foregoing, every Crown attorney shall, …
(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 Crim-
inal Code (Canada)….
The origin of section 12 extends through many changes, codifications and re-enactments. In
substance, the provision pre-dates Confederation. It was first consolidated after Confederation
as The Local Crown Attorneys Act, R.S.O. 1877, c. 78, s. 9.
21Kripps Pharmacy, supra, note 6, 522. The learned Justice does not refer to any specific
legislation, but see, for example, Department of the Attorney General Act, R.S.A. 1980, c.
D-13, s. 2(e), Attorney GeneralAct, R.S.B.C. 1979, c. 23, s. 2(e), An Act Respecting the Minist re
de la Justice, R.S.Q. 1977, c. M-1 9, s. 3(c) and An Act RespectingAttorney-General’s Prosecutors,
R.S.Q. 1977, c. S-35, s. 4(c).
2-This was the view of Dickson J. in Kripps Pharmacy, supra, note 6, 522.
McGILL LAW JOURNAL
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While some federal statutes prior to 1969 purported to give limited
prosecutorial power to federal officials, 23 it was not until the Criminal Law
Amendment Act, 1968-69 that the ultimate challenge to provincial prose-
cutorial authority arose. This Act amended the definition of “Attorney Gen-
eral” in section 2(2) of the Criminal Code.
“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 sub-
sections 505(4) and 507(3), includes the lawful deputy of the said Attorney
General, Solicitor General and Attorney General of Canada….
The actual effect and validity of this amendment soon became the object
of much judicial dispute.
C. Authorities
The constitutional validity of most of the pre-1969 legislation unfor-
tunately was never tested in the courts. The authorities from this period
are therefore scant; in the cases that were litigated, support can be found
for both the provincial and federal sides of the present debate. 24 The post-
1969 case law is perhaps more instructive.
The passage of the Criminal Law Amendment Act, 1968-69 raised nu-
merous issues, and the first to be addressed concerned the precise meaning
and effect of the new definition of “Attorney General”.
23See, for example, the legislation referred to by Laskin C.J.C. in C.N. Transport, supra, note
5, 458, 460-1.
24 In Hauser, supra, note 1, 1034-44, Dickson J. carefully examined the limited pre-1969
case law and concluded at page 1048:
Among the older cases, in particular [A.-G. v. Niagara Falls Int’l Bridge Co. (1873)
20 Gr. 34 and R. v. St. Louis (1897) 1 C.C.C. 141, 6 Que. Q.B. 389], 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 [Proprietary Articles Trade Ass’n
v.A.-G. Can. [1931] A.C. 310, [1931] 2 D.L.R. I (P.C.) and Reference Re Dominion
Trade and Industry Cominission Act [ 1936] S.C.R. 379, [1936] 3 D.L.R. 607], neither
of which provides any basis for a claim to constitutional jurisdiction over the
Attorney General’s role.
1984]
COMMENT
In R. v. Miller25 the accused was charged with an offence contrary to
the Bankruptcy Act 26 and with the Criminal Code offence of disposing of
property with the intention to defraud creditors.27 The Quebec Court of
Appeal interpreted the new section 2(2) as follows:
(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 the 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…
.28
The Supreme Court of Canada expressly approved this interpretation in
Hauser, and noted further that federal intervention in a prosecution results
in the exclusion of provincial authority. 29 Section 2(2) therefore clearly gives
the Attorney General of Canada a real and substantial role in the prosecution
of certain federal offences.
A number of other issues were settled before C.N. Transport and Kripps
Pharmacy came to be litigated, and it is helpful to summarize these briefly.
First, executive authority to enforce legislation generally follows the power
to legislate found within sections 91 and 92.30 With regard to prosecutorial
powers, the provinces may make provision for provincial offences and in
general Parliament can provide for prosecution of federal offences. 3′ Second,
exceptions do exist to this general rule on executive authority –
“mainly
in respect of judicial appointments”. 32 Third, if an exception exists for pro-
secutorial authority, the real distinction for the purposes of constitutional
law lies between section 91(27) offences and other federal offences and not
25(1975) 27 C.C.C. (2d) 438, [1975] C.A. 358 [hereinafter cited to C.C.C. translation].
26R.S.C. 1970, c. B-3, s. 169.
27S. 350.
28R. v. Miller, supra, note 25, 444. The Court of Appeal therefore concluded that the Attorney
General of Canada could not prosecute the Criminal Code charge. The Court of Appeal also
held that the question of the constitutional validity of the amendment did not arise because
Parliament did not attempt to alter the jurisdiction of the provincial Attorneys General. Instead,
the enactment gave the federal Attorney General concurrent jurisdiction.
29Hauser, supra, note 1, 991-2, per Pigeon J. Dickson J. came to a similar conclusion at pp.
1008-10.
30Hauser, supra, note 1, 993, per Pigeon J., and 1053, per Dickson J.
31Hauser, supra, note 1, 1053-4, per Dickson J.
32Hauser, supra, note 1, 993, per Pigeon J.
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[Vol. 29
between Criminal Code and non-Criminal Code offences. 33 (Section 2(2)
makes this latter distinction.) Finally, following the general rule, it has be-
come clear that Parliament has at minimum the constitutional jurisdiction
to invest federal officials with the power to prosecute offences validly enacted
under a section 91 head of power other than section 91(27). 34
The one question remaining – which level of government has authority
to prosecute section 91(27) offences – was not confronted directly until
C.N. Transport and Kripps Pharmacy. Leading up to these two cases were
three lower court opinions, and the Supreme Court judgments in Hauser.
While they failed to resolve the question, their findings shed some light on
the matter.35
In R. v. Pelletier,36 the accused appealed a conviction of conspiracy to
commit an offence contrary to the Narcotic Control Act.37 One ground of
appeal was the argument that the Attorney General of Canada, the prose-
cutor in the case, did not have any authority, since the Act was criminal
law and thus depended upon section 91(27) for its validity. For the Ontario
Court of Appeal, Estey J.A. appeared to assume that the Narcotic Control
Act was criminal law in nature.38 He decided that the purported delegation
in section 2(2) to the federal Attorney General of authority to prosecute
33Hauser, supra, note 1, 992, per Pigeon J. and 1014, per Dickson J.
341auser, supra, note 1, 996, per Pigeon J. and 1053-4, per Dickson J. Two other issues
appear to have been resolved. First, a statute which could be validly enacted under s. 91(27)
is still enforceable by a federal prosecutor so long as that statute is also supportable under
another s. 91 head. See R. v. Hoffmann-La Roche Ltd (1981) 33 O.R. (2d) 694, 729-31, (198 1)
62 C.C.C. (2d) 118 (C.A.) [hereinafter cited to O.R. as Hoffmann-La Roche] and C.N. Transport,
supra, note 5, 504, per Dickson J. Second, the difficult problem of conspiracies was settled. In
general, non-Criminal Code federal statutes rely on the conspiracy provision in s. 423(1) of
the Criminal Code to supplement the substantive offences found in such other federal statutes.
This is made possible by s. 27(2) of the Interpretation Act, R.S.C. 1970, c. 1-23. R. v. Aziz
[1981] 1 S.C.R. 188, (1981) 57 C.C.C. (2d) 97 decided that a conspiracy charge, even if the
information is laid under s. 423(1) of the Criminal Code, is most closely associated with the
statute wherein the substantive offence is found. Therefore, if the Attorney General of Canada
could prosecute offences laid under a statute (because the statute was supportable under a s.
91 head other than s. 91(27)), he could also prosecute conspiracies to commit such offences.
35These four cases are: Pelletier, supra, note 9; R. v. Pontbriand [1978] C.S. 134, (1978) 39
C.C.C. (2d) 145 [hereinafter cited to C.S. as Pontbriand]; Hauser, supra, note 1; and Hoffmann-
La Roche, supra, note 34. These are the cases considered relevant by Laskin C.J.C. in C.N.
Transport, supra, note 5, 466.
36Supra, note 9.
37R.S.C. 1970, c. N-l, s. 4(l) [hereinafter Narcotic Control Act].
38This is the interpretation of Pelletier taken in Hoffmann-La Roche, supra, note 34, 718.
Hauser, supra, note 1, later established that the Narcotic Control Act was supportable under
the “Peace, Order and good Government” federal power.
1984]
CHRONIQUE DE LEGISLATION
criminal offences was valid on the ground that both the provincial and
federal levels have concurrent jurisdiction in this field:
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. 39
In R. v. Pontbriand,40 which also dealt with offences under the Narcotic
Control Act, the Quebec Superior Court came to the opposite conclusion,
on the ground that section 92(14) includes the administration of criminal
justice:
[T]he 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 sections 92.14 and
135 of the British North America Act, 1867, reserved to the provincial legis-
latures. 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 section 2 of the
Criminal Code purports to do just this, it is to that extent ultra vires.41
In R. v. Hauser, after the Alberta Court of Appeal had also held that
section 2(2) was ultra vires,42 the Supreme Court of Canada had an oppor-
tunity to resolve finally the section 91(27) issue. Pigeon J., for the majority,
however, concluded that the Narcotic Control Act was supportable under
the federal “Peace, Order and good Government” power,43 and therefore
39Pelletier, supra, note 9, 703. It should be noted here that Hoffmann-La Roche, supra, note
34, picks up on the phrase which begins “at least” (see infra, notes 58 et seq. and accompanying
text).40Supra, note 35.
41Pontbriand, supra, note 35, 141.
42(1977) 7 A.R. 89, (1977) 37 C.C.C. (2d) 129 (S.C., App. Div.).
43Hauser, supra, note 1, 997-1001. To some this was a surprising conclusion: see, e.g., Henkel,
Comment, (1980) 18 Alta L. Rev. 265, 275 and Hovius, Hauser: Narcotic Drugs, Criminal
Law, and Peace, Order and Good Government (1980) 18 U.W.O. L. Rev. 505, 517-8.
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he did not have to deal with the section 91(27) question. 44 The majority’s
narrow ratio, then, was that Parliament can at least invest a federal official
with the authority to prosecute offences which are validly enacted under a
federal power other than section 91(27). 45
Spence J., in a separate opinion, concurred in the majority’s result, but
his reasons were broader. Giving a sweeping interpretation to “Procedure
in Criminal Matters” in section 91(27), he concluded that this provision
allows federal prosecutorial authority over all federal offences. 46 Spence J.
then went on to make the curious statement that “it is difficult to understand
how much of the federal legislative field could be dealt with efficiently by
other methods.” 47 The statement is curious, because a strong argument in
favour of provincial authority is precisely that certain federal offences, namely
local or intraprovincial criminal offences, are most effectively dealt with if
investigation, policing and prosecution are conducted by local authorities.
“Hauser, supra, note 1, 992, 1001. Pigeon J. relied upon Lord Atkin’s “second principle”
(of only deciding that which is necessary) in Proprietary Articles Trade Ass’n v. A.-G. Can.
[1931] A.C. 310, 316-7, [1931] 2 D.L.R. I (P.C.). The author prefers the viewpoint expressed
by Laskin in The Role and Functions of Final Appellate Courts: The Supreme Court of Canada
(1975) 53 Can. Bar Rev. 469, 475:
Now, even more in its supervisory role than in its heretofore more traditional
appellate role, the Supreme Court’s main function is to oversee the development
of the law in the courts of Canada, to give guidance in articulate reasons and, indeed,
direction to the provincial courts and to the Federal Court of Canada on issues of
national concern or of common concern to several provinces, issues that may ob-
trude even though arising under different legislative regimes in different provinces.
This is surely the paramount obligation of an ultimate appellate court with national
authority. [Emphasis added]
45Hauser, supra, note 1, 996.
46Hauser, supra, note 1, 1004-5. Spence J. states:
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 ofjustice “in the Province”. I do not
contend that those words mean the administration of justice in civil matters only
for, in the same enumerated head, both “civil” and “criminal” are expressly men-
tioned 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 statues.
47Hauser, supra, note 1, 1003-4. This passage of the judgment is confusing. The proposition
about efficiency clearly contradicts the idea of giving prosecution to the federal level for offences
enacted under all heads in s. 91. The Court in Hoffmann-La Roche, supra, note 34, relies on
this very remark in order to narrow the judgment: see infra note 63 and accompanying text.
19841
COMMENT
Dickson J. dissented in Hauser in both reasoning and result. Holding
that the Narcotic Control Act relied solely upon section 91(27) for its con-
stitutional validity,48 he necessarily turned to the question of authority over
the prosecution of a section 91(27) offence. He concluded that the provinces
should have exclusive jurisdiction. Agreeing that the general rule under the
Constitution Act, 1867 is that prosecutorial authority follows legislative au-
thority,49 Dickson J. contended that an exception exists in favour of the
criminal law power. The reason is that there is a “special relationship”
between sections 91(27) and 92(14).50 According to this view, section 92(14)
must include the administration of criminal justice and therefore limits the
scope of section 91(27). 51 As Dickson J. in C.N. Transport and Kripps Phar-
macy remained consistent with his view in Hauser, these earlier remarks
merit close attention:
The inescapable conclusion to be drawn from the legislative history, govern-
mental 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).52
The basic argument, then, is that the Constitution Act, 1867 created a
“subtle balance” which should not be disturbed;53 the prosecution of crim-
inal offences should remain in provincial hands where the administration
is more responsive to local conditions. 54 In short, the federal executive
should not be given such a broad power, susceptible of abuse in a central
government’s hands.55 Furthermore, Dickson J. rejected the notion of con-
current jurisdiction in this matter, because the issue is “too sharp” to fit
easily within the double aspect doctrine. 56 Because of the doctrine of par-
amountcy, “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. 57
48Hauser, supra, note 1, 1054 et seq.
49See supra, notes 30-1 and accompanying text.
50Hauser, supra, note 1, 1053.
5’Hauser, supra, note 1, 1017. See also pp. 1026-7 and 1049.
52Hauser, supra, note 1, 1048. Dickson J. discusses the legislative history at pp. 1028-33 and
the case law at pp. 1034-47. For a summary of the older cases, see supra, note 24.
53Hauser, supra, note 1, 1032 and 1049.
54Hauser, supra, note 1, 1032 and 1049.
55Hauser, supra, note 1, 1032.
56Hauser, supra, note 1, 1023.
57Hauser, supra, note 1, 1025. See also the comments of Dickson J. at pp. 1049-50.
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In Hoffmann-La Roche,58 the Ontario Court of Appeal held that Par-
liament had jurisdiction over the prosecution of offences under the Com-
bines Investigation Act,59 even if this Act depends upon section 91(27) for
its constitutional validity. 60 Martin J.A., for the Court, refused to decide
whether Parliament had jurisdiction to enforce “all federal enactments cre-
ating criminal offences”. 61 Instead, he narrowed his finding by underscoring
the national interest at stake in this case:
I am satisfied that, at the least, Parliament has concurrent jurisdiction with
the Provinces to enforce federal legislation validly enacted under head 27 of
s. 91 which, like the Combines Investigation Act, is mainly directed at sup-
pressing in the national interest, conduct which is essentially transprovincial
in its nature, operation and effects, and in respect of which the investigative
function is performed by federal officials pursuant to powers validly conferred
on them and using procedures which only Parliament can constitutionally
provide.
62
58Supra, note 34.
59R.S.C. 1970, c. C-23 [hereinafter Combines Investigation Act].
60The Court held obiter (p. 728), that the Combines Investigation Act is also supportable
under the federal power of “Peace Order and good Government” (pp. 728-33) and under s.
91(2) “The Regulation of Trade and Commerce” (pp. 733-6).
6’Hoffmann-La Roche, supra, note 34, 720.
62Hoffmann-La Roche, supra, note 34, 720. In the following passage from pages 722-3 of Mr
Justice Martin’s judgment, one finds some indication of what might constitute a “transprov-
incial” test. The elements one might isolate are: transprovincial nature of the conduct; necessity
of enforcement by one level of government or the other, and efficacy of enforcement:
The transprovincial dimension of the conduct sought to be suppressed, and the
vital necessity for the federal Government to have the capacity to initiate and
conduct the prosecution of offences under the Combines Investigation Act is well
stated by the learned trial Judge (at p. 188 O.R., p. 25 C.C.C., p. 29 D.L.R., p. 171
C.P.R.):
The capacity of the federal Government to prosecute its own criminal laws, if
this is felt to be desirable, is particularly necessary in the field of unfair com-
petition legislation, for to forbid that might impair the efficacy of these laws. This
type of criminal activity is often national in scope. Sometimes it may have an
international dimension. These crimes frequently involve large corporations, which
operate on a national and international scale. To prohibit the federal Government
from prosecuting these offenders might allow some of them to go unprosecuted
in certain circumstances, for there is little incentive for the Attorney-General of
any one Province to assume, at the enormous costs often involved, the burden
of prosecuting unlawful activities which may be largely perpetrated in other Prov-
inces. The federal Government must, therefore, be permitted to prosecute crim-
inal activity of national scope, if it feels it must for the national good.
Where a federal enactment, like the Combines Investigation Act, is mainly directed
to the suppression as criminal of activities which are essentially transprovincial in
nature, as distinct from being merely local or provincial in nature, and in respect
of which the investigative function is performed by federal officers, Parliament, in
my view, has concurrent jurisdiction with the Provinces to enforce such legislation,
even though in a particular case the activities giving rise to the charge occur within
a single Province. In the present case, however, the activities giving rise to the
charge were, in fact, transprovincial.
1984]
CHRONIQUE DE LEGISLATION
As Laskin C.J.C. in C.N. Transport referred to the reasons of Martin
J.A. as “unassailable”, close attention should be paid to two other passages
in Hoffman-La Roche. Martin J.A. addressed the reasons given by Estey
J.A. in Pelletier and Spence J. in Hauser, and again suggested that their
holdings of federal authority should be restricted to transprovincial matters:
It may be that some of the language of Estey J.A. and Spence J. is capable of
supporting a wider view of the field in which Parliament has concurrent ju-
risdiction with the Provinces in relation to the enforcement of federal enact-
ments creating criminal offences than is necessary for the decision in this case.
Both the learned Justices in the cases before them were, however, dealing with
a federal enactment, the Narcotic Control Act, which they considered was di-
rected at conduct that was transprovincial or national in its dimension. 63
Martin J.A. thus found that the relevant provisions of the Combines In-
vestigation Act were clearly directed at transprovincial conduct and that,
for efficient enforcement, the federal government must be able to prosecute
offences under this Act.64 He further cited with approval the remark made
by Dickson J. in Hauser that there is “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”. 65
II. C.N. Transport and Kripps Pharmacy
In C.N. Transport66 and Kripps Pharmacy,67 the long unresolved ques-
tion came squarely before the Supreme Court of Canada: to the extent that
federal legislation depends solely upon the section 91(27) criminal law power
for its constitutional validity, is Parliament competent to authorize the At-
torney General of Canada to prosecute offences under that legislation? The
issue was particularly significant in Kripps Pharmacy because the Act in
issue, the Food and Drugs Act,68 was found to depend for its validity solely
upon the section 91(27) criminal law power.69 The statute under scrutiny
in C.N. Transport, the Combines Investigation Act, evidently was found to
63Hoffmann-La Roche, supra, note 34, 719-20.
64Hoffmann-La Roche, supra, note 34, 722.
65Hauser, supra, note 1, 1032, quoted in Hoffmann-La Roche, supra, note 34, 727.
66Supra, note 5.
67Supra, note 6.
68R.S.C. 1970, c. F-27.
69Kripps Pharmacy, supra, note 6, 511, per Laskin C.J.C. and 518, per Dickson J.
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[Vol. 29
be supportable also under the “Trade and Commerce” power in section
91(2).70
A. The Majority View of Laskin C.J.C.
Laskin C.J.C. gave the majority judgment in both cases. 71 Early in his
opinion in C.N. Transport, he adopted a proposition which forms the major
premise of his entire argument. This is his assertion that no distinction can
be made between criminal offences and other federal offences. Curiously
enough the proposition was accepted without further discussion:
I may say that I find it impossible to separate prosecution for offences resting
on a violation of valid trade and commerce legislation and those resting on a
violation of the federal criminal law. .. .Indeed, counsel for the respondent
Canadian National Transportation, Limited [J.J. Robinette] was bold enough
to sweep all offences under federal
–
legislation [together]…72
and I think he was logically right –
If one accepts this view, then only two, radically different, conclusions
are possible. Either the provinces have constitutional authority to prosecute
all federal offences, criminal and non-criminal, or the provinces have no
prosecutorial power at all in respect of any federal offences. Since Hauser
had already decided that Parliament has authority to provide for prosecution
of non-criminal law offences,73 it would follow necessarily that the provinces
can not have total prosecutorial authority, and therefore must have none. 74
Unfortunately Laskin C.J.C. did not demonstrate why he believed his
major premise to be “logically right”. It is submitted, then, with the greatest
of respect for the late Chief Justice, that the majority opinion rests on a
crucial assumption which is inadequately defended. The rhetorical device
of defining a problem as having only two mutually-exclusive solutions often
leads to fallacy, and in the present case is unconvincing at best. The majority
opinion failed to address the alternate view advanced by Dickson J. in
70This was the view of three members of the Court: C.N. Transport, supra, note 5, 504, per
Dickson J. and 506, per Beetz and Lamer JJ. Because Laskin C.J.C., speaking for himself and
three other members of the Court, argued that there could be no distinction between s. 91(27)
and other federal powers (see infra notes 72-4 and accompanying text) he apparently felt that
it was unnecessary to decide under what federal power the Combines Investigation Act was
supportable. However, Laskin C.J.C. wrote his decision “assuming that the Combines Inves-
tigation Act rests only on the criminal law power” (p. 457).
71Laskin C.J.C. wrote the majority judgment in both C.N. Transport, supra, note 5, and
Kripps Pharmacy, supra, note 6. His reasoning is set out in the former case; he merely makes
a conclusion in the latter judgment and refers to his reasoning in C.N. Transport.
72 C.N. Transport, supra, note 5, 457.
73See supra, note 45 and accompanying text.
74Laskin C.J.C. did not set out this final obvious step.
1984]
COMMENT
Hauser, which is that there is a “special nexus” between sections 91(27)
and 92(14). 75
In reviewing the history of post-Confederation prosecution, Laskin C.J.C.
naturally took the view that provincial criminal prosecutors merely exer-
cised authority which had been delegated from Parliament. He noted further
that certain powers were exercised by federal officials. 76 Laskin C.J.C. also
examined, in C.N. Transport, some of the older cases. While recognizing
that there are cases which support a finding of provincial authority, he
contended that nothing in them prevented a conclusion in favour of federal
jurisdiction. 77 In the end, however, the learned Chief Justice turned the
question into one of statutory interpretation:
Although it is possible to tease from the case-law some support for a limitation
on federal prosecutorial authority, the issue must be decided on the basis of
the language of ss. 91 and 92 and the principles of federal exclusiveness and
paramountcy embodied therein. 78
Laskin C.J.C. decided that it is impossible to read section 92(14) as
including prosecutorial authority.79 He agreed that this provision does nar-
row section 91(27), but only with regard to “the Constitution, Maintenance,
and Organization of Provincial Courts … of Criminal Jurisdiction”. 80 In
his view the term “administration of Justice” in section 92(14) cannot be
read to include criminal justice. 8′ Parliament’s authority rests on the general
power over criminal law or the specific power over criminal procedure. 82
Parliament’s claim therefore overrides any provincial authority.
It is submitted that this argument on interpretation is unconvincing.
It is interesting, first, to note that Laskin C.J.C. paraphrased section 92(14)
in a manner curiously favourable to his position. He stated that the section
“grants jurisdiction over the administration of justice, including procedure
in civil matters and including also the constitution, maintenance and or-
ganization of civil and criminal provincial courts”.8 3
As section 92(14) actually grants provincial jurisdiction over “Admin-
istration of Justice in the Province”, an argument can be made based on
75See supra, notes 49-50 and accompanying text. See also infra, notes 10 1-2 and accompanying
text.
76See supra, notes 11-7 and accompanying text.
77C.N. Transport, supra, note 5, 458-9, 462-3.
78C.N. Transport, supra, note 5, 471.
79C.N. Transport, supra, note 5, 462.
80This is the express exception found in s. 92(14) of the Constitution Act, 1867.
81C.N. Transport, supra, note 5, 462.
82C.N. Transport, supra, note 5, 462. Laskin C.J.C. did not expressly state where the federal
authority is found.
83C.N. Transport, supra, note 5, 462.
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[Vol. 29
the very words which Laskin C.J.C. omits from his version. The argument
is that federal authority is justifiable for transprovincial offences, but the
provinces must have authority over that group of offences which are essen-
tially intra-provincial. The use of the words “in the Province” in section
92(14), it is submitted, suggests that this was precisely the view shared by
the framers of the Constitution.
It is not suggested that such an argument on language is determinative.
Indeed, an argument based solely on the interpretation of the words in
sections 91(27) and 92(14) is necessarily no more than an exercise in se-
mantics. The issue of allocating the powers to prosecute is too complex to
be reduced to such a simplistic debate.
With regard to a possible analysis of policy and efficiency of law en-
forcement, Laskin C.J.C. was remarkably brief. He seemed to acknowledge
that these ends would be better served by a finding of provincial authority,
but avoided the issue:
It would be one thing to assert that practical considerations would best be
served by recognizing provincial prosecutorial authority in the general run of
criminal law offences, but this is a matter to be considered by the Legislature
that has constitutional authority to enact the relevant provisions. It cannot of
itself determine where that constitutional authority lies.8 4
Considering the recent case law, Laskin C.J.C. quoted extensively and
approved the decisions of Pelletier and of Spence J. in Hauser.85 He dis-
missed in more summary fashion the views expressed in Pontbriand and
the judgment of Dickson J. in Hauser.86
Laskin C.J.C. also made a number of remarks which make his reasoning
more confusing. In discussing Hoffmann-La Roche, he stated: “There are a
number of passages in the reasons of Martin J.A. which I fully endorse”. 87
In his concluding remarks, Laskin C.J.C. decided that:
it is sufficient in my view to rely on the Pelletier case, the reasons of Justice
Spence in Hauser and the reasons of the Ontario Court of Appeal in the Hoff-
mann-La Roche case. . . .1 would add that the reasons of Mr Justice Martin
84C.N. Transport, supra, note 5, 471. This statement, it is submitted, is simply unsatisfactory.
It is true that “practical considerations” are not the sole criteria. But the Constitution was not
made in a vacuum; nor are consitutional decisions. Beyond the passage quoted, Laskin C.J.C.
failed to discuss the practical consequences of his decision.
85C.N. Transport, supra, note 5, 466-8, 472-4, 478.
86C.N. Transport, supra, note 5, 468-70, 474-5. The author submits, with the highest respect,
that the discussion by Laskin C.J.C. (at pp. 474-5) of the judgment of Dickson J. is obscure,
perhaps off the point and certainly inadequate considering the extensive discussion given to
this issued by Dickson J. in Hauser.
87C.N. Transport, supra, note 5, 475.
1984]
CHRONIQUE DE LtGISLATION
in Hoffnann-La Roche are in my view unassailable and, in themselves, would
justify responding affirmatively to the federal claim ofprosecutorial authority. 88
Among the passages quoted from Hoffmann-La Roche were those which
restrict that decision’s holding to “transprovincial” offences which are val-
idly investigated by federal officials.89 Much of this reasoning would seem
to contradict his own broad reasoning, and therefore it is not clear whether
Laskin C.J.C. meant to import all, or only part, of the Hoffmann-La Roche
decision. In short, it is not certain how widely Laskin C.J.C.’s decision
should be interpreted. These questions are particularly relevant with regard
to C.N. Transport, because both C.N. Transport and Hoffmann-La Roche
were concerned with offences under the Combines Investigation Act.
In Kripps Pharmacy,90 Laskin C.J.C. found that the relevant sections
of the Food and Drugs Act were properly assigned to the federal criminal
law power.9 1 Accordingly, it would appear that he simply applied his finding
from C.N. Transport. Stating that the “same considerations apply and for
the reasons there given”, Laskin C.J.C. found that the federal government
had prosecutorial authority.92
B. The Dissenting View of Dickson J.
In C.N. Transport and Kripps Pharmacy, Dickson J. made it clear that
he had not changed his position since Hauser,93 and held that only the
provinces have authority to provide for the prosecution of offences sup-
portable solely by section 91(27). 94 Thus in C.N. Transport he concurred in
result with Laskin C.J.C., but only on the basis that the relevant sections
of the Combines Investigation Act were supportable under section 91(2) as
well as under section 91(27). Parliament therefore has the authority to del-
egate the prosecution of these offences to the federal Attorney General. 95 In
88C.N. Transport, supra, note 5, 478.
89C.N. Transport, supra, note 5, 475-8.
90Kripps Pharmacy, supra, note 6. Three judges concurred with Laskin C.J.C. Beetz and
Lamer J.J. concurred in result (p. 527), giving the reason that they felt “bound” by the majority
judgment in C.N. Transport.
91Kripps Pharmacy, supra, note 6, 511.
92Kripps Pharmacy, supra, note 6, 511-2.
93Supra, note 1. For the reasons of Dickson J. in Hauser, see supra, notes 48-57 and accom-
94C.N. Transport, supra, note 5, 504-5.
95CN. Transport, supra, note 5, 504. Because the legislation is valid under s. 91(2) and under
s. 91(27), there is concurrent federal and provincial prosecutorial authority. By virtue of the
doctrine of federal paramountcy, s. 2(2) of the Criminal Code may exclude the provincial
Attorneys General (504). Dickson J. was careful to emphasize that he had not changed his
views in Hauser against concurrency of authority when the legislation can only be supported
under s. 91(27): see supra, notes 56-7, and accompanying text.
panying text.
McGILL LAW JOURNAL
[Vol. 29
Kripps Pharmacy, Dickson J. held that Parliament could not empower the
Attorney General of Canada to prosecute the particular Food and Drugs Act
offences in question, 96 because these provisions were supportable only under
section 91(27). 97
In general Dickson J. relied upon his reasoning in Hauser,98 reiterating
and developing several fundamental points. He reaffirmed his view that
section 92(14) includes the administration of criminal justice as well as civil
justice. While this interpretation, in his opinion, had been conclusively
adopted in an earlier case, 99 he concluded that a careful examination of the
wording of section 92(14) also leads to this conclusion. For, “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 draftsman could
readily have inserted the word ‘civil’ before ‘justice’.”’00
Continuing his interpretation of sections 92(14) and 91(27), Dickson J.
addressed the proposition that one should “sweep all offences under federal
legislation” together This view is logically incorrect, he argued, on the ground
that a “special nexus” exists between sections 92(14) and 91(27):I 1
There is… a special relationship between ss. 92(14) and 91(27), a rela-
tionship 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
… 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 admin-
istration of criminal justice, including the constitution, maintenance and or-
ganization of courts of criminal jurisdiction, is given to the provinces by s.
92(14). The singling out and express conferral on the provinces under s. 92(14)
of responsibility to constitute, maintain and organize courts for the adminis-
tration of one particular area offederal law, namely, criminal law, is unique.
For this reason also there is a “special nexus” between s. 92(14) and 91(27).102
Dickson J. did not restrict his reasoning to statutory analysis. Instead
he presented four additional points to support his position. First, because
of the “geographical enormity” of Canada, and the infant state of the trans-
portation and communication infrastructures in 1867, the draftsmen of the
96Kripps Pharmacy, supra, note 6, 518-26.
97Kripps Pharmacy, supra, note 6, 518.
98Kripps Pharmacy, supra, note 6, 519. For the reasons of Dickson J. in Hauser, see supra,
note 48-57 and accompanying text.
99Kripps Pharmacy, supra, note 6, 519-20.
‘0Kripps Pharmacy, supra, note 6, 521.
101Kripps Pharmacy, supra, note 6, 523-4.
102Kripps Pharmacy, supra, note 6, 524 [emphasis added].
1984]
COMMENT
Constitution Act, 1867 “were not thinking in terms of a centralized prose-
cutorial authority.”’10 3 Second, provincial prosecution of criminal offences
is essential to ensure “a careful weighing of the multitude of local consid-
erations”. 104 Third, “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” to ensure that the
exercise of such power would not be seen as politically tainted. 10 5 Finally,
Dickson J. recalled from his judgment in Hauser that “there is a certain
unity and cohesion between the three aspects of law enforcement, investi-
gation, policing and prosecution, which would be imperilled if the inves-
tigation function were discharged at one level of government and the
prosecutorial function at the other level”.10 6
B. The “Transprovincial” Solution
It is submitted that there exists a position which would reconcile the
majority and minority views, and which provides the most appropriate
balancing of prosecutorial power between the two levels of government. It
is also submitted that this position constitutes the correct interpretation of
sections 92(14) and 91(27). The view, which could be called the transprov-
incial solution, would read into section 92(14) the authority to prosecute
all criminal offences which are intra-provincial or local in scope. This ju-
risdiction would include the great majority of offences under the Criminal
Code and therefore the majority of section 91(27) offences. The federal
government would have the authority to prosecute offences which seek to
suppress conduct which is transprovincial or national in scope. Such juris-
diction would include, almost by definition, all offences under Acts which
are supportable under section 91 heads of power other than section 91(27).
The advantages of this position would be numerous. Chief Justice
Laskin’s reliance on the “transprovincial” reasoning of Martin J.A. would
be respected. Mr Justice Dickson’s concerns about effective law enforcement
would be respected. Provincial authorities would be responsible for policing,
investigation and prosecution in respect of local offences, while the federal
’03Kripps Pharmacy, supra, note 6, 525.
104Kripps Pharmacy, supra, note 6, 524.
’05Kripps Pharmacy, supra, note 6, 525.
106C.N. Transportsupra, note 5, 504-5.
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[Vol. 29
government would have jurisdiction over policing, investigation and pros-
ecution concerning all offences which, in the national interest, seek to sup-
press certain conduct.10 7
Since this transprovincial position is appropriately attributed to Martin
J.A., it is regrettable that Chief Justice Laskin, who regarded the reasons of
Mr Justice Martin as “unassailable”, did not deal more carefully with the
argument. What remains particularly unclear in Laskin C.J.C.’s judgment
is the extent to which he relies on the broad, but unsubstantiated, propo-
sition that all federal offences must be treated together. Had Laskin C.J.C.
explicitly applied the “transprovincial” reasoning, his judgment would not
contain this lack of clarity, and he likely would have arrived at the same
results in both cases. In C.N. Transport the conduct sought to be suppressed
was a conspiracy to lessen competition in the interprovincial transportation
of general merchandise. Such an offence would clearly meet the test of being
transprovincial in scope and should therefore be prosecuted by federal of-
ficials. In Kripps Pharmacy, it would seem convincing to argue that the Food
and Drugs Act is aimed at suppressing, in the national interest, various
kinds of conduct and therefore also meets the criteria set out in Hoffman-
La Roche.
Conclusion
The distribution of authority to prosecute offences is an important and
complex constitutional issue. A balance must be struck which respects the
interests of both levels of government and which ensures effective law en-
forcement. A cursory reading of the majority in Kripps Pharmacy and C.N.
Transport suggests that Parliament now has the power to provide for federal
prosecution of all offences, including all offences validily enacted under
section 91(27). In short, simple federal legislation could uproot the status
quo which has existed and worked well since prior to Confederation.
A more careful reading raises a number of questions about the scope
of the majority view. Of the two opinions, it is submitted that the stronger
position is articulated by Mr Justice Dickson, who held that local control
of the prosecution of criminal offences is essential to effective and balanced
law enforcement. 08 Laskin C.J.C. did not discuss such “practical consid-
erations”, arguing that these matters are of concern to the legislature that
’07While the aim of this comment is not to develop conclusively the “transprovincial test”,
an appropriate starting point would be the elements articulated by Mr Justice Martin in
Hoffman-La Roche, supra, note 62. Thus it would seem correct to examine: (a) the transborder
nature of the conduct sought to be suppressed, (b) the necessity and (c) the efficacy of enforce-
ment by one level of government over the other.
08See supra, notes 53-5, 104-5, and accompanying text.
1984]
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has the constitutional authority. 0 9 With great respect, this position is un-
satisfactory. The Constitution Act, 1867 was not enacted in a vacuum; the
Fathers of Confederation were greatly concerned with “practical consider-
ations”. Furthermore, there are serious weaknesses in the reasoning of the
majority judgment. The premise that all federal offences must be treated
alike is not defended satisfactorily.
A reasonable solution is available in the assertion that C.N. Transport
and Kripps Pharmacy did not hold anything beyond what was decided in
Hoffmann-La Roche: Parliament has authority, at least, to provide for the
prosecution of offences directed at conduct which is transprovincial in na-
ture. While there may be some difficulties with this test, they are not in-
surmountable. The value of this test lies in alleviating concerns about the
effective enforcement of certain criminal law offences which are national in
scope, and at the same time allowing constitutional protection of provincial
prosecutorial control.
For all of the above reasons, it is submitted that a reversion of pro-
secutorial authority to the federal government would be unfortunate. In this
regard, it is altogether fitting to close with an eloquent submission of the
Attorney General of Saskatchewan, which Dickson J. adopted in Kripps
Pharmacy:
The balance struck between section s. 91(27) and 92(14) of the Constitution
Act is a reflection of the faith the framers of the Constitution placed in a co-
operative, 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 Parliament while giving to the provinces the authority to ad-
minister 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 uni-
formity of criminal laws and procedures, while each of the provincial Legis-
latures, through its Attorney General, has acted to ensure that those laws and
09See supra, note 84 and accompanying text.
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[Vol. 29
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. 0
I OKripps Pharmacy, supra, note 7, 526.