Health Protection Branch

NOTES

1. Severn v. The Queen, [1878], 2 S.C.R. 70, 113; In The Matter Of A Reference Respecting The Farm Products Marketing Act, R.S.O. 1950, Chapter 131, As Amended, [1957] S.C.R. 198, 226. See also Peter Hogg, Constitutional Law of Canada, (Toronto: The Carswell Company Ltd., 1977), at 88-92.

1. See, for example, Attorney-General For Alberta v. Attorney-General for Canada And Others, [1939] A.C. 117 (P.C.); Texada Mines Limited v. The Attorney-General Of British Columbia, [1960] S.C.R. 713.
2. See Bank of Toronto v. Lambe, [1887], 12 App. Cas. 575 (P.C.); Gold Seal Limited v. Dominion Express Company and The Attorney-General For The Province of Alberta [1921], 62 S.C.R. 424.
3. Hodge v. The Queen, [1883], 9 App. Cas. 117, 130 (P.C.).
4. Toronto Electrical Commissioners v. Snider and Attorneys-General For Canada and Ontario, [1925] A.C. 396, 400 (P.C.); Ex p. Wakabayashi. Ex p. Lore Yip, [1928] 3 D.L.R. 226, 228 (B.C.S.C.).
5. The definition of the federal criminal law power may be traced through a series of cases. See In Re The Board Of Commerce Act, 1919, And The Combines And Fair Prices Act, 1919, [1922] 1 A.C. 191 (P.C.); Proprietary Articles Trade Association v. Attorney-General For Canada, [1931] A.C. 310 (P.C.); Attorney-General for British Columbia v. Attorney-General For Canada, [1937] A.C. 368 (P.C.); In The Matter Of A Reference As To The Validity Of Section 5(A) Of The Dairy Industry Act, R.S.C. 1927, Chapter 45, [1949] S.C.R. 1, approved on appeal in Canadian Federation Of Agriculture v. Attorney-General For Quebec, [1951] A.C. 179 (P.C.).
6. See, for example, Standard Sausage Company Limited v. Lee, [1934] 1 W.W.R. 81 (B.C.C.A.); and Rex v. Perfection Creameries Limited, [1939] 2 W.W.R. 139 (Man. C.A.).
7. See, for example, the Criminal Code R.S.C. 1970, c. C-34, as am. to March, 1976: s. 81 (prize fights); ss. 185-190 (gaming, betting, lotteries); s. 251 (abortion). See also the Lord’s Day Act R.S.C. 1970, c. L-13 containing various exemptions.

9 Hogg, Constitutional Law of Canada, at 290 suggests that this statement by Laskin C.J.C. may be "too sweeping." Although Laskin C.J.C. was in dissent, the court was unanimous on this point in upholding s. 251 as valid criminal law.

10. See also, the Electricity Inspection Act R.S.C. 1970, c. E-4; Hazardous Products Act R.S.C. 1970, c. H-3; Textile Labelling Act R.S.C. 1970, c. 46 (1^st supp.). The constitutionality of the regulatory features of the Narcotic Control Act and the Food and Drugs Act are discussed in the Commission of Inquiry into the Non-Medical Use of Drugs’s Final Report, (Ottawa: Information Canada 1970, Appendix F-1, at 916-922. Hereafter cited as the Le Dain Final Report.

11. See, for example, In Re The Board of Commerce Act, 1919, And The Combines And Fair Prices Act, 1919, [1922] 1 A.C. 191 (P.C.); In The Matter Of A Reference As To Whether The Parliament Of Canada Had Legislative Jurisdiction To Enact The Dominion Trade and Industry Commission Act, 1935, Being 25-26 Geo. V, C. 59, [1936] S.C.R. 379; Attorney-General For Ontario v. Reciprocal Insurers, [1924] A.C. 328 (P.C.).
12. Hogg, Constitutional Law of Canada, at 291.
13. The Citizens Insurance Company Of Canada v. Parsons, [1881], 7 App. Cas. 96 (P.C.); Attorney-General For The Dominion of Canada v. Attorney-General For The Province Of Alberta, [1916] 1 A.C. 588 (P.C.); Hodge v. The Queen, [1883], 9 App. Cas. 117 (P.C.). See also the Le Dain Final Report, at 916-922.
14. Gold Seal Limited v. Dominion Express Company and The Attorney-General For The Province Of Alberta, [1921], 62 S.C.R. 424; Caloil Inc. v. The Attorney-General Of Canada, [1971] S.C.R. 543; Attorney-General Of British Columbia v. Attorney-General Of Canada, [1924] A.C. 222 (P.C.).
15. The Citizens Insurance Company Of Canada v. Parsons, [1881], 7 App. Cas. 96 (P.C.). The history of the judicial interpretation of the federal trade and commerce power s. 91(2) is outlined in Hogg, Constitutional Law of Canada, at 267-275.
16. Caloil Inc. v. The Attorney-General of Canada, [1971] S.C.R. 543, affirming The Queen v. Klassen, [1959], 20 D.L.R. (2d) 406 (Man. C.A.).
17. See the Le Dain Final Report, at 916-917.
18. Unreported decision. See the McCarthy Act decision reported in the Schedule to 48-49 Victoria, c. 74.
19. See Hogg, Constitutional Law of Canada, at 245-246 for a fuller explanation.
20. These heads of power, sections 92(7), 92(13), and 92(16), are discussed infra. [N.B.]
21. See generally the Le Dain Final Report, at 917-918.
22. See, for example, Fort Frances Pulp and Paper Company Limited v. Manitoba Free Press Company Limited, [1923] A.C. 695; Reference Re Validity of Wartime Leasehold Regulations, [1950] S.C.R. 124; Reference Re Anti-Inflation Act, [1976] 2 S.C.R. 373.
23. This is also the conclusion reached in the Le Dain Final Report at 921-922. The Final Report also notes that the controversial early liquor cases allowing for federal prohibition which are seemingly justified by the general power, may be better explained on the basis of the criminal law power.
24. Attorney-General For Canada v. Attorney-General For Ontario, [1937] A.C. 326 (P.C.).
25. MacDonald et al. v. Vapour Canada Ltd. et al., [1976], 66 D.L.R. (3d) 1, 27-29 (S.C.C.).
26. Attorney-General For Canada v. Attorney-General For Ontario, [1937] A.C. 326 (P.C.). See Hogg, Constitutional Law of Canada, at 181-195 and 189-190.

27. See, for example, Gagnon and Vallières v. The Queen, [1971], 14 C.R.N.S. 321, 355 (Que. C.A.); and Hogg, Constitutional Law of Canada, at 184-186.

28. See, for example, The Provincial Secretary Of The Province Of Prince Edward Island v. Egan, [1941] S.C.R. 396; Smith v. The Queen, [1960] S.C.R. 776; O’Grady v. Sparling, [1960] S.C.R. 804; Mann v. The Queen, [1966], S.C.R. 238.
29. Interpretation Act R.S.C. 1970, c. I-23, s. 27.
30. These are discussed more fully in The Sociolegal Consequences of Enforcement in Part 3.
31. The issue of paramountcy is fully discussed in Constitutional Considerations in Part 3.
32. Dufresne et al. v. The King, [1912], 19 C.C.C. 414 (Que. K.B.); Regina v. Snyder and Fletcher, 1967], 61 W.W.R. 112 (Alta. S.C.); Regina v. Simpson, Mack and Lewis, [1968], 1 D.L.R. (3d) 597 (B.C.C.A.).
33. See, for example, Hodge v. The Queen, [1883], 9 App. Cas. 117 (P.C.); Attorney-General For Ontario v. Attorney-General For the Dominion, and The Distillers and Brewers Association of Ontario, [1896] A.C. 348 (P.C.).
34. In Dufresne et al. v. The King, [1912], 19 C.C.C. 414 (Que. K.B.) the court appeared to adopt this line of reasoning in finding that a provincial statute which limited the sale of cocaine to wholesale dealers and medical professionals was invalid. The court stated, at p. 419:

The object of the present Provincial Act is to prohibit, under penalty, the use of cocaine...otherwise than as a medicine, an exception being made, however, in favour of wholesale dealers and certain professions. By its nature, the statute must be considered more a punishment that a regulation. Its object is to provide against possible violations of its provisions, in the interest of public morals, rather than to control the sale of cocaine, in the interest of those trading in that drug. The end which it proposes is the suppression, in the province of Quebec, of the dangerous use of cocaine, and not the securing of the free enjoyment of the rights of ownership in the drug.

35. Rinfret v. Pope, [1886], 12 Q.L.R. 303 (Que. C.A.); Re Bowack, [1892], 2 B.C.R. 216 (B.C.S.C.); Re Shelly, [1913], 10 D.L.R. 666 (Alta. S.C.). See also the Le Dain Final Report, at 922.
36. See Hal Joffee and J. Oakley, "The Constitutionality Of The British Columbia Heroin Treatment Act," unpublished research report prepared for the Non-Medical Use of Drugs Directorate, Health and Welfare Canada, 1978, at 26-27.
37. Attorney-General For Ontario v. Attorney-General For The Dominion, And The Distillers And Brewers Association Of Ontario, [1896] A.C. 348 (P.C.); Attorney-General Of Manitoba v. Manitoba Licence Holders’ Association, [1902] A.C. 73 (P.C.).
38. See the Le Dain Final Report, at 931-932; and Hogg, Constitutional Law of Canada, at 241-265.
39. Le Dain Final Report, at 932.
40. Regina v. Simpson, Mack And Lewis, [1968], 1 D.L.R. (3d) 597 (B.C.C.A.).
41. See, however, Re Nova Scotia Board of Censors v. McNeil, [1978], 84 D.L.R. (3d) 1, 28 (S.C.C.). Although it is not clear from his judgment, Mr. Justice Ritchie appears to suggest that section 92(16) may support provincial legislation establishing moral standards.
42. See generally Hogg, Constitutional Law of Canada, at 101-114.
43. A variety of labels have been applied to the two tests. For the sake of consistency and to avoid confusion, we have adopted the terminology used by Hogg.
44. See, for example, The Provincial Secretary Of The Province Of Prince Edward Island v. Egan, [1941] S.C.R. 396; Reference Re S. 92(4) Of The Vehicles Act 1957 (Sask.), [1958] S.C.R. 608; O’Grady v. Sparling, [1960] S.C.R. 804; Stephens v. The Queen, [1960] S.C.R. 823; Mann v. The Queen, [1966] S.C.R. 238; Ross v. The Registrar of Motor Vehicles and the Attorney-General For Ontario, [1975] 1 S.C.R. 5. See also Hogg, Constitutional Law of Canada, at 103-109.
45. In Smith v. The Queen, [1960] S.C.R. 776, 800, Martland J. stated there is an express contradiction when "compliance with one law involves breach of the other."
46. See Smith v. The Queen, [1960] S.C.R. 776; Mann v. The Queen, [1966] S.C.R. 238.
47. Hogg, Constitutional Law of Canada, at 112-113.
48. See also O’Grady v. Sparling, [1960] S.C.R. 804. For a criticism of the Ross case see Peter Barton, "Comments" 53 Canadian Bar Review, (1975), 80.
49. The relevant section of the Criminal Code states that where an accused has been convicted, the judge may "...make an order prohibiting him from driving...at such times and places as may be specified...." Thus this section does not expressly give a judge the power to authorize driving under certain circumstances. Pigeon, J., at p. 16, noted that "Parliament did not purport to state exhaustively the law respecting motor driving licences, or the suspension or cancellation for driving offences. Therefore, the question whether this could validly be done by Parliament does not arise.
50. The issue of whether Parliament could validly authorize driving under its criminal law power was not confronted by the court. It also specifically left open the issue of whether such an authorization, if valid, would conflict with the provincial highway traffic act.
51. Ross v. The Registrar of Motor Vehicles and the Attorney-General For Ontario, [1975] 1 S.C.R.
52. It should be noted that federal legislation authorizing cannabis possession would likely violate Canada’s treaty obligations under the Single Convention on Narcotic Drugs 1961.
53. Hogg reaches a similar conclusion: "If the field had been occupied by express words, as opposed to implication, presumably then there would be an express contradiction which would suffice to trigger the paramountcy doctrine." Constitutional Law of Canada, at 110, note 47. See also 388-389 where Hogg discusses section 88 of the Indian Act R.S.C. 1970, c I-6.
54. Ibid., at 68-74.
55. Ibid., 277-278.
56. See for example, R. v. Pelletier, [1974], 18 C.C.C. (2d) 516 (Ont. C.A.); R.v. Dunn et al., [1977], 36 C.C.C. (2d) 495 (Sask. C.A.).
57. See for example, Industrial Acceptance Corp. v. The Queen, [1953], 107 C.C.C. 1 (S.C.C.).