Schneider v. The Queen, 1982 CanLII 26 (SCC), [1982] 2 SCR 112

SUPREME COURT OF CANADA

Schneider v. The Queen, 1982 CanLII 26 (SCC), [1982] 2 SCR 112

Date: 1982-08-09

Brenda Ruth Schneider Appellant;

and

Her Majesty The Queen in Right of the Province of British Columbia Respondent;

and

Attorney General of Canada, Attorney General of Manitoba, Attorney General for Alberta Interveners.

File No.: 16255.

1981: December 17; 1982: August 9.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Constitutional law — Jurisdiction — Provincial statute providing for compulsory treatment of heroin addicts — Whether or not statute ultra vires the province — Heroin Treatment Act, 1978 (B.C.), c. 24 — Narcotic Control Act, R.S.C. 1970, c, N-1 — British North America Act, 1867, R.S.C. 1970, Appendix II, ss. 91, 92.

Appellant initiated this action on behalf of herself and all persons in British Columbia who were or could have been psychologically or physically dependent upon a narcotic as defined in the Heroin Treatment Act. This appeal challenged the constitutional validity of that Act and sought a declaration that it was ultra vires the provincial legislature, and in particular, the plan for compulsory treatment and detention of heroin users as established by the Act.

Held: The appeal should be dismissed.

Per Laskin C.J.: The Heroin Treatment Act is intra vires as public health legislation providing for voluntary and compulsory treatment. This conclusion, however, must not be taken as excluding Parliament's power to legislate with respect to the national public health.

Per Martland, Ritchie, Dickson, Beetz, McIntyre, Chouinard and Lamer JJ.: The "pith and substance" of the Heroin Treatment Act is the medical treatment of heroin addicts and is within the general provincial competence over health matters under s. 92(16) of the B.N.A. Act. Narcotic addiction is not a crime but a physiological condition necessitating both medical and social intervention by the province. The compulsory aspects of this intervention were incidental to the effectiveness of the treatment and were not intended to be punitive or to be a colourable attempt to "stiffen the existing criminal law". The problem of heroin addiction neither reached a state of emergency giving rise to federal competence under the residual power nor went beyond provincial concern and become by its nature of national concern. Further, the Act did not fall within the scope of any federal power to legislate for the implementation of international treaties. Part II of the Narcotic Control Act which bears the title "Preventive Detention and Custody for Treatment" has not yet been proclaimed. In the absence of operative federal legislation no issue of paramountcy or conflict arises.

Per Estey J.: The Heroin Treatment Act is intra vires, based on the province's authority under s. 92(7),(13) and (16) and on the fact that it is not an invasion of exclusive federal power with reference to criminal law in s. 91(27). The divided or concurrent field of health legislation requires, however, that this conclusion come under subsequent review should it be joined in the field by federal legislation dealing with matters of national concern.

R. v. Hauser, 1979 13 (SCC), [1979] 1 S.C.R. 984; Reference re Intoxicated Persons Detention Act, 1980 3055 (MB CA), [1981] 1 W.W.R. 333, considered; R. v. Aziz, 1981 170 (SCC), [1981] 1 S.C.R. 188; Re Residential Tenancies Act, 1979, 1981 24 (SCC), [1981], 1 S.C.R. 714; In re Regulation and Control of Aeronautics in Canada, 1931 466 (UK JCPC), [1932] A.C. 54; Attorney-General for Ontario v. Canada Temperance Federation, 1946 351 (UK JCPC), [1946] A.C. 193; Johannesson v. Rural Municipality of West St. Paul, 1951 55 (SCC), [1952] 1 S.C.R. 292; Munro v. National Capital Commission, 1966 74 (SCC), [1966] S.C.R. 663; Re C.F.R.B. and Attorney General for Canada, 1973 788 (ON CA), [1973] 3 O.R. 819; Johnson v. Attorney General of Alberta, 1954 68 (SCC), [1954] S.C.R. 127; Hodge v. The Queen (1883), 9 App. Cas. 117; Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348; Attorney-General of Manitoba v. Manitoba License Holders' Association, [1902] A.C. 73; Rinfret v. Pope, (1886), 12 Q.L.R. 303 (Que. C.A.); Re Bowack (1892), 1977 305 (BC SC), 2 B.C.L.R. 216; Fawcett v. Attorney-General for Ontario, 1964 17 (SCC), [1964] S.C.R. 625; Green v. Livermore, 1940 93 (ON SC), [1940] O.R. 381; Re Levkoe and The Queen (1977), 1977 1088 (ON SC), 18 O.R. (2d) 265; Attorney General for Canada and Dupond v. Montreal, 1978 201 (SCC), [1978] 2 S.C.R. 770; Nova Scotia Board of Censors v. McNeil, 1978 6 (SCC), [1978] 2 S.C.R. 662; Smith v. The Queen, 1960 12 (SCC), [1960] S.C.R. 776; MacDonald et al. v. Vapor Canada Ltd., 1976 181 (SCC), [1977] 2 S.C.R. 134; Attorney-General for Canada v. Attorney-General for Ontario (Labour Conventions Reference), 1937 362 (UK JCPC), [1937] A.C. 326; Labatt Breweries of Canada Ltd. v. Attorney-General of Canada, 1979 190 (SCC), [1980] 1 S.C.R. 914; Canadian Indemnity Company v. Attorney-General of British Columbia, 1976 195 (SCC), [1977] 2 S.C.R. 504; Construction Montcalm Inc. v. Minimum Wage Commission, 1978 18 (SCC), [1979] 1 S.C.R. 754; Toronto Electric Commissioners v. Snider, 1925 331 (UK JCPC), [1925] A.C. 396; Russell v. The Queen (1882), 7 A.C. 829; O'Grady v. Sparling, 1960 70 (SCC), [1960] S.C.R. 804; Mann v. The Queen, 1966 5 (SCC), [1966] S.C.R. 238; Switzman v. Elbling, 1957 2 (SCC), [1957] S.C.R. 285; Saumur v. City of Quebec, 1953 3 (SCC), [1953] 2 S.C.R. 299, referred to.

APPEAL from a judgment of the British Columbia Court of Appeal (1980), 1980 424 (BC CA), 111 D.L.R. (3d) 632, 52 C.C.C. (2d) 321, 22 B.C.L.R. 363, [1981] 1 W.W.R. 511, allowing an appeal from a judgment of McEachern C.J.B.C. finding the Heroin Treatment Act ultra vires of the British Columbia Legislature and invalidating a provincial Act. Appeal dismissed.

Morris Manning, Q. C., and Ingrid Myers, for the appellant.

A. B. Ferris, Q.C., and Paul Pearlman, for the respondent.

T. B. Smith, Q.C., and J. M. Mabbutt, for the intervener the Attorney General of Canada.

Brian Squair, for the intervener the Attorney General of Manitoba.

William Henkel, Q.C., and Inge Otto, for the intervener the Attorney General for Alberta.

The following are the reasons delivered by

THE CHIEF JUSTICE—I am in agreement with Dickson J. that in its thrust as public health legislation in the Province, providing thereunder for voluntary and compulsory treatment, the Heroin Treatment Act, 1978 (B.C.), c. 24 is intra vires. This conclusion must not be taken as excluding the Parliament of Canada from legislating in relation to public health, viewed as directed to protection of the national welfare. In the present case, there is no preclusive or superseding federal legislation. Even Part II of the Narcotic Control Act, R.S.C. 1970, c. N-1, providing for custodial treatment upon a conviction of a narcotic offence, remains unproclaimed. However, it is unnecessary to come to a determination whether on such a proclamation the provincial Act would become inoperable.

There is one other point I wish to make and it relates to the difficulties in this case raised by the majority judgment of this Court in R. v. Hauser, 1979 13 (SCC), [1979] 1 S.C.R. 984. It appears to be that case, in treating the Narcotic Control Act as an exercise of the federal residuary power to legislate for the peace, order and good government of Canada, that underpinned the reasons of McEachern C.J.B.C., invalidating the present provincial Act. Dickson J., in his reasons in this case, adequately disposed of the residuary power as a bar to the provincial Act, but I do not myself hesitate to say that, in my view, the majority judgment in the Hauser case ought not to have placed the Narcotic Control Act under the residuary power. Unless we revert to a long abandoned view of the peace, order and good government power as embracing the entire catalogue of federal legislative powers, I would myself have viewed the Narcotic Control Act as an exercise of the federal criminal law power (as did Dickson J. dissenting on another point in Hauser); and, had I sat in Hauser, I would have supported the reasons of Spence J. who, in Hauser, saw the Narcotic Control Act as referable to both the criminal law power and to the trade and commerce power; see [1979] 1 S.C.R. 984, at pp. 1003-04.

It is of some relevance to note that this Court speaking through Martland J., in R. v. Aziz, 1981 170 (SCC), [1981] 1 S.C.R. 188, was cautious in its endorsement of Hauser as basing the Narcotic Control Act entirely on the peace, order and good government clause. There is, in my view, good ground to reconsider that basis of decision, resting as it did on a bare majority judgment.

The judgment of Martland, Ritchie, Dickson, Beetz, McIntyre, Chouinard and Lamer JJ. was delivered by

DICKSON J.—The appellant, Brenda Ruth Schneider, has brought this action on her own behalf, and on behalf of all persons in British Columbia who are, or who may be, psychologically or physically dependent upon a narcotic as defined in the Heroin Treatment Act, 1978 (B.C.), c. 24. She challenges the constitutional validity of the Act and seeks a declaration that it is ultra vires the provincial legislature, in particular the plan for compulsory treatment and detention of heroin users established by the Act.

The constitutional question as settled by the order of the Chief Justice is brief and to the point:

Is the Heroin Treatment Act S.B.C. 1978 Chapter 24 ultra vires the legislature of the Province of British-Columbia?

Narcotics Control Legislation

The federal Parliament has enacted over the years a series of increasingly elaborate statutes for the control of narcotic drugs. The first, comprising two sections, was passed in 1908, An Act to prohibit the importation, manufacture and sale of Opium for other than medicinal purposes, 1908 (Can.), c. 50. This was followed in 1911 by The Opium and Drug Act, 1911 (Can.), c. 17, in 1923 by The Opium and Narcotic Drug Act, 1923 (Can.), c. 22, and in 1961 by what is now in effect the present Act, entitled Narcotic Control Act, R.S.C. 1970, c. N-1.

Part I of the present Act lists four offences: (i) possession of narcotic, the offender being liable upon conviction on indictment to imprisonment for seven years; (ii) trafficking in a narcotic, the offender being liable to imprisonment for life; (iii) importing or exporting a narcotic, the maximum penalty being imprisonment for life, the minimum penalty being seven years; (iv) cultivating opium poppy or marihuana, the penalty being seven years imprisonment.

Part II of the Act, not yet proclaimed, bears the title "Preventive Detention and Custody for Treatment", and provides among other things, for a sentence of "custody for treatment for an indeterminate period, in lieu of any other sentence that might be imposed" upon conviction for a narcotic offence (s.17(1)). Section 19(1) of Part II provides:

19. (1) Where the legislature of a province enacts legislation that is designed to provide custody for treatment for persons who, although not charged with the offence of possession of a narcotic, are narcotic addicts, the Minister may enter into an agreement with the province, subject to the approval of the Governor in Council, for the confinement and treatment of such persons in institutions maintained and operated pursuant to the Penitentiary Act and for the release and supervision of such persons pursuant to the Parole Act.

Part II of the Act, when enacted in 1961, was expressed to come into force upon proclamation. To date, no proclamation has been made.

II International Conventions

Canada has also been a party to a number of international conventions concerning dangerous drugs. The most recent such treaty, "Single Convention on Narcotic Drugs 1961", was signed on March 30, 1961. Article 38 of the Convention, when adopted, read:

1. The Parties shall give special attention to the provision of facilities for the medical treatment, care and rehabilitation of drug addicts.

2. If a Party has a serious problem with drug addiction and its economic resources permit, it is desirable that it establish adequate facilities for the effective treatment of drug addicts.

Article 36, paragraph 1(b) was later added with effect from August 8, 1975:

(b) Notwithstanding the preceding sub-paragraph, when abusers of drugs have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, that such abusers shall undergo measures of treatment, education, aftercare, rehabilitation and social reintegration in conformity with paragraph 1 of article 38.

As of the same date, article 38 was repealed and the following substituted:

Measures Against the Abuse of Drugs

1. The Parties shall give special attention to and take all practicable measures for the prevention of abuse of drugs and for the early identification, treatment, education, aftercare, rehabilitation and social reintegration of the persons involved and shall coordinate their efforts to these ends.

2. The Parties shall as far as possible promote the training of personnel in the treatment, aftercare, rehabilitation and social reintegration of abusers of drugs.

3. The Parties shall take all practicable measures to assist persons whose work so requires to gain an understanding of the problems of abuse of drugs and of its prevention, and shall also promote such understanding among the general public if there is a risk that abuse of drugs will become widespread.

III Further Background

The question whether jurisdiction in respect of the treatment of narcotic addicts lay in the federal or in the provincial domain was considered in 1955 by the Special Committee of the Senate on the Traffic in Narcotics Drugs. The Committee concluded, at p. xix, that it fell within provincial competence:

The Committee points out that it is not within the constitutional authority of the federal government to assume responsibility for treatment of drug addicts nor to enact the kind of legislation necessary in that connection. This legislation would need to include the compulsory treatment of addiction, the legal supervision and control over the individual during treatment and the right of control of an individual following treatment to prevent his return to the use of drugs, former associations or habits. These are considered to be matters beyond the competence of the federal government.

In 1973 the Final Report of the Commission of Inquiry into the Non-Medical Use of Drugs (the Le Dain Commission) was published. The Report also considered the constitutional framework of legislation in Canada dealing with the non-medical use of drugs. The Report comes down firmly on the side of provincial competence with respect to compulsory treatment legislation at p. 927: "it is directed to the elimination of a medical condition rather than the deterrence of crime".

Earlier in the Report one reads, at p. 923:

It is clearly established that the provinces have jurisdiction to provide for civil commitment or compulsory treatment. There is legislation for the involuntary confinement of mentally disordered persons in all of the provinces. The statement of the grounds for such confinement varies but generally speaking it is that the patient suffers from mental disorder in such a degree that hospitalization is required "for his own protection or welfare or that of others" or "in the interests of his own safety or the safety of others". There is also legislative provision in some provinces for the compulsory treatment of drug dependent persons, including alcoholics, either under the mental health legislation or some special statute. The constitutional basis for compulsory treatment legislation in the provinces would appear to be section 92(7) of the BNA Act respecting the establishment of hospitals and asylums, section 92(13) respecting property and civil rights, including questions of incapacity and the protection of incapables, and section 92(16) which covers the residual provincial jurisdiction with respect to matters of health.

Finally, we come to the 1977 British Columbia report entitled A Plan for The Treatment and Rehabilitation of Heroin Users in British Columbia, prepared by the Alcohol and Drug Commission for the provincial Minister of Health, and which preceded the enactment of the Heroin Treatment Act. The Report introduces the subject with the statement that the Province of British Columbia has had to contend with a drug addiction problem for sixty-eight years and has within this period had not less than 60 per. cent or 70 per cent of all known heroin addicts in Canada living within its borders. The voluntary programs have, in general, it is said, attracted only a very small proportion of the user population, either the highly motivated or the desperate. Among other statements one reads in the course of a very lengthy Report are the following. The problem of heroin use in Canada as well as in British Columbia has increased more than 500 per cent since 1956 and British Columbia has consistently had the most serious problem of any province. It is estimated that 60 per cent of crime in the province is drug-related and that the heroin trade generates $255 million annually. In the view of the authors of the Report, at p. 42, it was a problem which had to be attacked through the coordination of treatment and enforcement programs:

In conclusion, it appears that since 1956 law enforcement efforts have not succeeded in stopping the spread of heroin or reducing its use in British Columbia. It is probable, however, that these efforts have been responsible for limiting the rate of growth of this problem and that more recent strategies have contributed to an overall decrease in availability and purity and an increase in cost, the effects of which are yet to be determined. What is now required is a more concerted effort, coordinated between all levels of enforcement, the criminal justice system and treatment. Only by working together and by viewing the problem as one that is of concern to everybody will observable success be attained.

Among the alternative courses of action listed at p. 43 are:

—Continue the present situation, characterized by the present drug laws and enforcement patterns to control supply, and rely on voluntary treatment programmes to reduce demand.

—Design a system which would change the law and enforcement patterns by allowing some type of legal heroin supply.

—Design a system which would allow individuals apprehended under the present legislation to be diverted to a long-term programme aimed at reducing their involvement in the heroin scene.

—Design a system which would reduce the demand for heroin by intervening directly into the drug use patterns of the current users.

Continuance of the current situation was rejected, at p. 45, because "it is clear that our current system puts us on an endless treadmill where a large expenditure on enforcement is essential to keep the problem under control, and a constantly high level of crime is an additional price we pay". Legalized heroin "does not provide the hope of any lasting solution or significant reduction of the overall problem. Heroin would be readily available and without an ongoing commitment to enforcement there would always be a potential growing addict population". The option of sending individuals who are addicted, once they are convicted of an offence, to a program that would deal with their addiction suffered the disadvantage that "it would still be necessary for someone to be convicted of an offence before they could enter the system" (at p. 47). The fourth alternative, "Direction into Treatment" was favoured:

A programme of direction into treatment would place a new emphasis on controlling the heroin user to discourage him from using narcotics and to encourage him to effect a significant change in lifestyle. The twofold objective of removing the current using population from active use of the illicit drug and rehabilitating as many as possible could be anticipated to have some major positive effects [at p. 48].

The judge at trial and counsel for the appellant laid emphasis upon the following passage from the Report:

Contrary to the opinions of some, the heroin user does not suffer from a disease in the traditional sense, but in fact accepts and in some cases enjoys his dependency. Dependency is not, for the majority who are not medical cases, a social disease either, but a learned condition. Few, if any, users are unaware of the potential danger of the drug and of the legal consequences of its use, prior to involvement in the subculture. Notwithstanding the above, dependency, once established, requires both medical and social intervention [at p. 50].

All that I would take from the above passage is that the heroin user does not suffer from a disease in the traditional sense but, nevertheless, dependency once established requires both social intervention and medical intervention.

In discussing method the Report notes, that in order to avoid establishing a precedent, a detailed examination was made of existing federal and provincial legislation including the Mental Health Act, the Health Act, the Venereal Disease Suppression Act and the Regulations for Control of Communicable Diseases. The conclusion is reached, at p. 54, that "In the British Columbia Provincial Acts and Regulations, authority is vested in specified officials to direct persons into treatment where warranted for their own or others' well-being with appropriate penalties for non-compliance" and "Therefore, consideration of some form of direction into treatment is NOT precedent setting".

The key unit envisaged in the total system of care for the heroin user would be the Area Coordinating Centre where a decision would be reached by an Evaluation Panel as to use, type of support and duration of support required, predicated on the historical, biochemical and clinical evidence provided the Evaluation Panel of the centre after diagnosis. The Director, acting on the advice of the panel, would make the decision as to direction into treatment or otherwise.

Depending on the examination, evaluation and findings, under the authority of the Director, the patient might be channelled into support by one of the four following procedures;

—Referral to a supportive in-patient unit where committal for treatment is authorized.

—Referral to a supportive in-patient unit where voluntary admission is requested and approved.

—Referral to a community clinic where a personal history justifies such a procedure.

—Release without prejudice where the examination criteria do not indicate use or dependency.

On the subject of "Period of Control" the Report reads at p. 127:

Subject to a satisfactory treatment and aftercare record, the medical entry plan envisages the total system of treatment and aftercare being three years.

In cases where the user is directed to a treatment centre the time spent in treatment will be six months which may be extended for a further six-month period with the approval of the Board of Review. Where rapid response to the treatment regimen is confirmed, the Director of the treatment centre may, at the appropriate time, authorize the transfer of the patient to a community clinic or directly to community supervision.

In cases where the user is committed to a community clinic the time spent in treatment may be a period of one year which may be extended for a further six months with the approval of the Board of Review.

In the case of voluntary entry, the treatment phase can be omitted or the time spent in treatment materially reduced, if the initial evaluation or satisfactory progress of the patient warrants such a decision.

Notwithstanding the above, the time spent in total in the system (3 years) cannot be reduced.

The Report recommended that the Ministry of Health set up such treatment programs as would offer assistance to the individual, and be in conformity with the overall plan. The programs might include: psychiatric assessment and counselling; behavioural modification; hypnosis; professional intensive individual counselling, group or family therapy; chemotherapy such as use of a narcotic antagonist, immunological techniques if developed, narcotic support in special cases; training for employment support.

IV The Heroin Treatment Act

The Heroin Treatment Act was enacted by the Legislative Assembly of the Province of British Columbia on June 28, 1978. It was given Royal Assent on June 29, 1978, and came into force by Proclamation on July 27, 1978.

The Act provides a comprehensive program for the evaluation, treatment and rehabilitation of narcotic dependent persons. It makes provision for the creation and administration of treatment centres and clinics for persons dependent on narcotics as defined in the Act, essentially heroin and methadone. Extraordinary powers are given to the directors and evaluation panels of the area coordinating centres which are charged with the task of examing persons believed to be dependent on narcotics. The evaluation panel consists of at least two medical practitioners and one other person. The panel conducts medical and psychological examinations at the centre and reports in writing to the director "as to whether the person is or is not in need of treatment for narcotic dependency and where, in its opinion, treatment is needed, make[s] recommendations to the director respecting the treatment" (s. 4(2)). For the purpose of this examination a person may be detained at the centre for up to seventy-two hours and he must furnish a sample of blood and urine.

Where treatment is recommended by the panel, the person may consent to committal for treatment. Where the panel is unanimous in recommending treatment and the person does not voluntarily submit to treatment, the director of the centre may apply, ex parte if need be, to the Supreme Court of British Columbia for a committal order. The Court must be satisfied that the person is in need of treatment for narcotics dependency.

A director is required to develop programs for the treatment of patients generally, or for the treatment of an individual patient. A treatment program of a patient must last for three consecutive years and may include some or all of the following:

5....

(2) ..

(a) where a director so directs, detention in a treatment centre for a period not exceeding 6 consecutive months;

(b) attendance at a treatment clinic at such times and over such periods, not exceeding one year in total, as a director may require;

(c) supervision and direction of such kind and of such duration as a director may require.

Such a period of detention may not be shortened or rescinded but is subject to indefinite prolongation by a Board of Review. The Board of Review may also require a person who is not in detention but who is undergoing treatment to be detained in a treatment centre or clinic for up to seven days in order "to facilitate the assessment, monitoring, or review of a patient's needs" (s. 7(2)).

The powers conferred are couched in language emphasizing the medical treatment aspect of the legislation. A person subject to such treatment is defined in the Act as a "patient" whether his treatment is voluntary or compulsory. The evaluation panel which recommends treatment must be composed of medical practitioners in the majority. The recommendation is based on a medical and psychological examination. The Act contains the following statutory definitions of "dependency" and of "patient" and of "treatment" from s. 1 of the Act:

"dependency"

means, in relation to a narcotic, a state of psychological or physical dependence, or both, on a narcotic following its use of a periodic or continuous basis;

"patient"

means a person who is required or voluntarily agrees to undergo treatment under this Act;

"treatment"

means one, more, or all of direction, supervision, or treatment of a person for the purpose of terminating or diminishing his use of or dependency on a narcotic.

The Act contains a number of sections embodying measures which, combined with the possibility of detention for a period of at least three years, are the major concern of the appellant. Section 13(1) of the Act provides that where a peace officer believes on reasonable grounds that a person has a dependency on a narcotic, he may give the person a written notice specifying a date and time, not less than twenty-four hours or more than forty-eight hours from the time of the giving of the notice, at which the person is required to attend and submit to examination at the area coordinating centre specified in the notice. Where a person does not comply with such a notice the Alcohol and Drug Commission of the province may apply ex parte to a judge for a warrant authorizing a peace officer to take the person into custody and take him to an area coordinating centre.

By section 11(1) of the Act, a peace officer is authorized, without the necessity of obtaining a warrant, to take to a treatment centre for detention a person whose detention has been authorized or required under the Act. Section 16 creates several offences for non-compliance with the Act.

There are certain safeguards built into the Act which demonstrate a concern for the protection of the individual who finds himself subject to the provisions of the Act. The evaluation panel must make a report in writing to the director within sixty hours of the admission of a person for examination and the director must "forthwith" provide the person examined with a copy. A court order of committal may be appealed to the Court of Appeal of British Columbia and nothing in the Act deprives a person of any remedies available upon judicial review. Where an application has been made for an extension of treatment or detention the patient has the right to be heard by the Board of Review.

V Judicial History

McEachern C.J.S.C. in a lengthy judgment at trial (reported [1980] 2 W.W.R. 27 and 691) found the Heroin Treatment Act to be ultra vires the provincial legislature. The Supreme Court of Canada recently considered the Narcotic Control Act, supra, and the majority found it to be valid federal legislation under the federal residuary power (R. v. Hauser, 1979 13 (SCC), [1979] 1 S.C.R. 984); McEachern C.J. was of the opinion that, like other new subjects of federal competence, (i.e. aviation and radio communications) narcotics must receive an extended rather than a restrictive interpretation. Once a matter has fallen under exclusive federal jurisdiction there is no room left for the province to legislate with respect to that subject matter. McEachern C.J. determined that the true subject matter of the Narcotic Control Act encompassed the protection of the public, including addicts, from the consequences of drug use or abuse.

As the true subject matter of the Heroin Treatment Act in the view of the learned Chief Justice fell within the residuary jurisdiction of the federal Parliament, it did not matter that Parliament had not occupied the entire field. He thus concluded that the compulsory provisions of the Heroin Treatment Act were ultra vires the provincial legislature.

Although not strictly necessary, he went on to consider the second submission of the appellant: that the Heroin Treatment Act is — a colourable infringement on the federal Parliament's exclusive criminal law jurisdiction. He found that this Court's decision in Hauser did not mean that the Narcotic Control Act is not also legislation in relation to criminal law. The Heroin Treatment Act, he held, fell within the language of Rand J. in the Margarine Reference case (Reference as to the Validity of Section 5(a) of the Dairy Industry Act, 1948 2 (SCC), [1949] S.C.R. 1) in that it was enacted

with a view to a public purpose, i.e., to protect the public against the hazards of narcotics; and included within that puble [sic] are all those factors mentioned by Rand J., viz., public peace, order, security, health and morality (at p. 72).

He rejected the arguments that characterize the Act as health legislation properly within provincial competence.

On Appeal

The British Columbia Court of Appeal sitting as a five-man bench unanimously reversed McEachern C.J. (reported 1980 424 (BC CA), [1981] 1 W.W.R. 511). McFarlane J.A., speaking on behalf of the Court, found that the Heroin Treatment Act was valid provincial legislation.

McFarlane J.A. first disposed of some points that had an important bearing on the reasoning of McEachern C.J. Stress had been laid in the lower court on the proposition that the general purpose of the Narcotic Control Act as well as of the Heroin Treatment Act is the protection of the public against the evils of narcotics. The general purpose of much legislation, both federal and provincial, may well be said to be protection of the public, but the existence of that general purpose does not provide a test of constitutional validity. On the other hand, the purpose of a legislative enactment is generally evidential of its true nature or subject matter.

As to the admission in evidence of the Report (Plan for The Treatment and Rehabilitation of Heroin Users in British Columbia), it seemed to McFarlane J.A. that McEachern C.J. allowed himself to be led into a use of the document to too great a degree in his search for the pith and substance of the legislation, whereas the purpose and intention of the legislature could be sought and found in an examination of the statute itself, but with little reliance on the extrinsic aid of the Report.

Thirdly, McFarlane J.A. disagreed with the two conclusions drawn by the trial judge based on Hauser, supra, namely that the subject matter of the Heroin Treatment Act and that of the Narcotic Control Act are the same, i.e. narcotics, and that "narcotics", being classified as legislation under the residual power, in effect becomes a subject matter added as a new head under s. 91 of the B.N.A. Act and that matters so classified acquire a greater degree of exclusivity within federal legislative authority because they affect the body politic of Canada. As a matter of interpretation, it seemed clear that the residual power was subject to and could not include, matters coming within the classes of subjects enumerated in s. 92 of the B.N.A. Act.

McFarlane J.A. then turned to a consideration of the pith and substance of the impugned legislation, in order to ascertain the class of subject to which it really related.

The legislative plan, he held, is not to punish users of narcotics. It is to provide facilities and other means designed to assist in terminating or diminishing a "patient's" use or dependency on the defined narcotic. Mr. Justice McFarlane commented that a dependent person or patient, could receive a full three years of treatment under the Act without any detention whatever. With respect to the compulsory aspects of the 'treatment' he said, at p. 520:

(2) The compulsory aspects of the "treatment" authorized by the Act appear to me to be clearly consistent with the statutory definition of that word which shows the purpose to be "terminating or diminishing his use of or dependency on a narcotic".

I think reference may be made usefully to Resolution II of the United Nations Conference for the adoption of a Single Convention on Narcotic Drugs, 1961 (referred to by the Supreme Court of Canada in R. v. Hauser, supra, at p. 16), which declares:

"That one of the most effective methods of treatment for addiction is treatment in a hospital institution having a drugfree atmosphere."

Mr. Justice McFarlane continued at pp. 520-21:

The subject matter of the statute then is the establishment, maintenance, management and administration of facilities and institutions for the purpose of terminating or diminishing a use of or dependency on narcotics included in the statutory definition. The subject matter cannot be said correctly to be the control of narcotics within the meaning of those words as they are used by the Supreme Court of Canada in R. v. Hauser, supra. Neither can the subject matter be said correctly to be the control and punishment of persons who use or deal in narcotics.

McFarlane J.A. concluded that the statute is in pith and substance enacted in relation to the classes of subjects enumerated in s. 92(7),(13), (15), and (16) of the B.N.A. Act. The Heroin Treatment Act is therefore intra vires the provincial legislature. Moreover, the Heroin Treatment Act does not conflict with the Narcotic Control Act and is therefore operative.

VI The Issues

The appellant submits that the Court of Appeal for British Columbia erred in law in four respects:

a) In failing to hold that the Heroin Treatment Act is in pith and substance legislation in relation to the subject matter of narcotics and as such falls within the exclusive power of the Parliament of Canada to make laws for the peace, order and good government of Canada.

b) In failing to hold that the Heroin Treatment Act is in pith and substance legislation in relation to criminal law and as such is within the exclusive legislative authority of the Parliament of Canada under section 91(27) of the British North America Act, 1867.

c) In failing to hold that the Heroin Treatment Act is in pith and substance legislation in relation to the subject matter of narcotics and as such falls within the treaty making power exercised by Parliament and as such falls within the exclusive power of Parliament to make laws for the peace, order and good government of Canada.

d) In failing to hold that the Heroin Treatment Act, if valid Provincial legislation, was rendered inoperative by operation of the Narcotic Control Act, the Criminal Code, the Penitentiaries Act and the Parole Act.

VII

Laws for the Peace, Order and Good Government of Canada

The decision of this Court in R. v. Hauser, supra, is authority for the proposition that the Parliament of Canada, pursuant to its powers to make laws in relation to the peace, order and good government of Canada, is competent to make laws for the control of narcotics. Mr. Justice Pigeon, speaking for the majority of the Court, makes this clear in the following passage, at p. 998, from his judgment:

The history of the drug control legislation, as well as its general scheme, shows in my view that it is what the English title calls it: an act for the control of narcotic drugs.

In my view the impugned legislation is not legislation in relation to "control of narcotic drugs" as that subject matter was characterized in Hauser but deals, rather, with the consequences of narcotic use from a provincial aspect. The issue before the Court in Hauser concerned the authority of the federal government to prosecute various offences under the Narcotic Control Act, that is to say, the possession, trafficking, importing and exporting, and cultivation of narcotics. The question of legislative jurisdiction in relation to the treatment of narcotic dependent persons, of course, never arose.

Chief Justice McEachern, admitted, over objection, the Plan for The Treatment and Rehabilitation of Heroin Users in British Columbia in order to give the "underpinning of the issues" and to set out the evil or mischief sought to be remedied by the impugned legislation. I think the report was properly admitted for the limited purpose mentioned (Re Residential Tenancies Act, 1979, 1981 24 (SCC), [1981] 1 S.C.R. 714, at p. 723, 37 N.R. 158, at pp. 165-66). Although the report was not received for the purpose of proving the truth of the statements made therein, it was not disputed that, historically, between 60 and 70 percent of all known heroin addicts in Canada have resided in the Province of British Columbia. It is largely a local or provincial problem and not one which has become a matter of national concern, so as to bring it within the jurisdiction of the Parliament of Canada under the residuary power contained in the opening words of the B.N.A. Act (now, Constitution Act, 1867).

There is no material before the Court leading one to conclude that the problem of heroin dependency as distinguished from illegal trade in drugs is a matter of national interest and dimension transcending the power of each province to meet and solve its own way. It is not a problem which "is beyond the power of the provinces to deal with" (Professor Gibson (1976-77), 7 Man. L.J. 15, at p. 33). Failure by one province to provide treatment facilities will not endanger the interests of another province. The subject is not one which "has attained such dimensions as to affect the body politic of the Dominion" (In re Regulation and Control of Aeronautics in Canada, 1931 466 (UK JCPC), [1932] A.C. 54, at p. 77). It is not something that "goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole (as, for example, in the Aeronautics case and the Radio case)" per Viscount Simon in Attorney-General for Ontario v. Canada Temperance Federation, 1946 351 (UK JCPC), [1946] A.C. 193, at p. 205. See also Johannesson v. Rural Municipality of West St. Paul, 1951 55 (SCC), [1952] 1 S.C.R. 292; Munro v. National Capital Commission, 1966 74 (SCC), [1966] S.C.R. 663; Re C.F.R.B. and Attorney General for Canada, 1973 788 (ON CA), [1973] 3 O.R. 819. Nor can it be said, on the record, that heroin addiction has reached a state of emergency as will ground federal competence under residual power.

I do not think the subject of narcotics is so global and indivisible that the legislative domain cannot be divided, illegal trade in narcotics coming within the jurisdiction of the Parliament of Canada and the treatment of addicts under provincial jurisdiction.

VIII

Criminal Law

The appellant submits that the Heroin Treatment Act in effect creates a new crime of narcotic dependency and is a colourable attempt to "stiffen the existing criminal law", as in Johnson v. Attorney General of Alberta, 1954 68 (SCC), [1954] S.C.R. 127, at p. 165 per Cartwright J. I do not agree. It is true that one of the objects of the Act is the suppression of "local evils"—local conditions giving rise to crime—but this is a matter of merely local nature in the Province and within s. 92(16) of the B.N.A. Act. See: Hodge v. The Queen (1883), 9 App. Cas. 117, at pp. 130-31; Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A.C. 348, at p. 365; Attorney-General of Manitoba v. Manitoba License Holders' Association, [1902] A.C. 73, at p. 78. It is true that compulsory treatment under the Act may involve restraints upon freedom, including a period of treatment in a treatment centre, but such provisions do not dictate that the statute be characterized as criminal legislation. It is not an easy matter, I confess, to determine whether the Heroin Treatment Act is a valid provincial health law with what-might-be-regarded-as-punitive features or whether the pith and substance of the Act is criminal law and therefore invalid. I think, on balance, however, it was open to the Court of Appeal of British Columbia to conclude, as it did, that the provisions of the impugned statute for the examination, apprehension and detention of dependent persons or patients are in no way intended to be punitive. They are provided for as ancillary to "treatment" as defined. The legislative plan is not to punish users of narcotics. It is to provide facilities and other means designed to assist in terminating or diminishing a "patient's" use of or dependency on the defined narcotic. I am not prepared to hold that the legislation is colourable.

Although the cases of Re Bowack (1892), 1977 305 (BC SC), 2 B.C.L.R. 216, and Fawcett v. Attorney-General for Ontario, 1964 17 (SCC), [1964] S.C.R. 625, and Green v. Livermore, 1940 93 (ON SC), [1940] O.R. 381, are by no means a perfect analogy they do afford examples of the extent to which provincial legislation providing for the compulsory apprehension, detention and treatment of persons for health purposes has been sustained.

Recently, in Reference re Intoxicated Persons Detention Act, 1980 3055 (MB CA), [1981] 1 W.W.R. 333, the Manitoba Court of Appeal was called upon to consider the validity of an Act which provided that a police officer could take into custody and place in a detoxication centre for a period of up to twenty-four hours a person who was intoxicated in a place to which the public had access. The five-judge Court unanimously upheld the validity of the legislation. Huband J.A. (Freedman C.J.M. and Monnin J.A. concurring) said at pp. 338-39:

One cannot gloss over the reality that, under the terms of the Act, a person who becomes intoxicated can be confined against his will in jail-like surroundings for a period of time of and up to 24 hours. But the fact of confinement does not necessarily take this legislation into the realm of criminal law. Legislation in the field of mental diseases and quarantine relative to communicable diseases can involve involuntary confinement, but clearly it is dealing with the health of the citizen, as opposed to criminality. Child welfare legislation authorizes the confinement of children in protective custody, for example, to prevent harm from potentially abusive parents. That confinement is for the safety and security of the individual and does not invade the domain of criminal law.

The purpose of the Intoxicated Persons Detention Act is made abundantly clear in s. 3(1). The purpose is to prevent an intoxicated person from being a danger either to himself or to others.

The interface between criminal law and provincial legislation which might be seen as impunging upon the federal jurisdiction in the field of criminal law has not been closely drawn. As Professor Hogg notes in Chapter 16 of his work, Constitutional Law of Canada, the dominant tendency of the case law has been to uphold provincial penal legislation; recent cases have been generous to provincial power, and "The result is that over much of the field which may loosely be thought of as criminal law legislative power is concurrent" (at p. 292).

Examples of compatible federal and provincial legislation abound, for example: in health legislation, Fawcett v. Attorney-General for Ontario, supra, in Re Bowack, supra, Green v. Livermore, supra, Re Levkoe and The Queen (1977), 1977 1088 (ON SC), 18 O.R. (2d) 265; in quasi-criminal legislation Attorney General for Canada and Dupond v. Montreal, 1978 201 (SCC), [1978] 2 S.C.R. 770, Nova Scotia Board of Censors v. McNeil, 1978 6 (SCC), [1978] 2 S.C.R. 662, Smith v. The Queen, 1960 12 (SCC), [1960] S.C.R. 776.

IX

Federal Treaty Powers

The appellant submits that Parliament has jurisdiction to enact laws in relation to obligations assumed by Canada as a signatory to international treaties or conventions. It is further submitted that even if the exercise of federal implementation of treaty obligations touches upon a provincial subject matter, it is competent to Parliament so to do in relation to a treaty as a matter of national concern. Although the point was left open in this Court in MacDonald et al. v. Vapor Canada Ltd., 1976 181 (SCC), [1977] 2 S.C.R. 134, the appellant's proposition is questionable in the face of Lord Atkins' judgment on behalf of the Judicial Committee of the Privy Council in Attorney-General for Canada v. Attorney-General for Ontario (Labour Conventions Reference), 1937 362 (UK JCPC), [1937] A.C. 326, at p. 351:

For the purposes of ss. 91 and 92, i.e., the distribution of legislative powers between the Dominion and the Provinces, there is no such thing as treaty legislation as such. The distribution is based on classes of subjects; and as a treaty deals with a particular class of subjects so will the legislative power of performing it be ascertained.

That aside, this Court in the MacDonald-Vapor case held that even assuming Parliament has power to pass legislation implementing a treaty or convention in relation to matters covered by the treaty or convention which would otherwise be for provincial legislation alone, the exercise of that power must be manifested in the implementing legislation and not be left to inference.

There is nothing in the Narcotic Control Act to indicate that that Act or any part of it was enacted in implementation of Canada's treaty obligations under the terms of the Single Convention. I agree with McEachern C.J. at trial, supra, at p. 36, that "giving the convention its full force and effect only means that Canada is treaty bound to involve itself in active treatment which, thus far, it has failed to do". The Heroin Treatment Act is not legislation falling within the scope of any federal power to legislate for the implementation of international treaties.

X Public Health

In ascertaining the "pith and substance" of a law in order to determine its validity under s. 91 or 92 of the B.N.A. Act "it is necessary to identify the dominant or most important characteristic of the challenged law" (Hogg, at p. 80). The Heroin Treatment Act provides for the treatment, both voluntary and compulsory, of heroin addicts. The main contention of the provinces (British Columbia, Manitoba and Alberta) and the Attorney General of Canada is that legislation providing for the treatment of addicts is intra vires the province as legislation in relation to health and thus a local and private matter. Public health falls under provincial competence as does, what is in effect, civil committal in implementation of health legislation.

Section 92, it is true, does not contain a specific head of power dealing with health and public welfare. Section 92(7) provides for the physical facilities of provincial health care:

92....

7. The Establishment, Maintenance and Management of Hospitals ... in and for the Province, other than Marine Hospitals.

The Royal Commission on Dominion-Provincial Relations (the Rowell-Sirois Commission) in 1938 commented on this absence of a specific head of power dealing with the administration of public health at pp. 32-33:

In 1867 the administration of public health was still in a very primitive stage, the assumption being that health was a private matter and state assistance to protect or improve the health of the citizen was highly exceptional and tolerable only in emergencies such as epidemics, or for purposes of ensuring elementary sanitation in urban communities. Such public health activities as the state did undertake were almost wholly a function of local and municipal governments. It is not strange, therefore, that the British North America Act does not expressly allocate jurisdiction in public health, except that marine hospitals and quarantine (presumably ship quarantine) were assigned to the Dominion, while the province was given jurisdiction over other hospitals, asylums, charities and eleemosynary institutions. But the province was assigned jurisdiction over "generally all matters of a merely local or private nature in the Province", and it is probable that this power was deemed to cover health matters, while the power over "municipal institutions" provided a convenient means for dealing with such matters.

The Rowell-Sirois Commission recommended, at p. 34, that "Provincial responsibilities in health matters should be considered basic and residual. Dominion activities on the other hand, should be considered exceptions to the general rule of provincial responsibility, and should be justified in each case on the merit of their performance by the Dominion rather than by the province". "Dominion jurisdiction over health matters is largely, if not wholly, ancillary to express jurisdiction over other subjects ... " Thus historically, at least, the general jurisdiction over public health was seen to lie with the provinces under s. 92(16) "Generally all matters of a merely local or private Nature in the Province" although the considerable dimensions of this jurisdiction were unlikely foreseen in 1867.

This view that the general jurisdiction over health matters is provincial (allowing for a limited federal jurisdiction either ancillary to the express heads of power in s. 91 or the emergency power under peace, order and good government) has prevailed and is now not seriously questioned (see Rinfret v. Pope (1886), 12 Q.L.R. 303 (Que. C.A.), Re Bowack, supra, Labatt Breweries of Canada Ltd. v. Attorney General of Canada, 1979 190 (SCC), [1980] 1 S.C.R. 914, per Estey J.).

The medical treatment of drug addiction is a bona fide concern of the provincial legislature under its general jurisdiction with respect to public health. The constitutional question to be answered is whether the "dominant or most important characteristic" of the Heroin Treatment Act is the medical treatment of drug addiction.

Narcotic addiction has been perceived to be a social evil and federal legislation has made possession of, and trafficking in, narcotics, criminal offences. Addiction itself, however, is a physiological condition the treatment of which would seem to be a medical concern to be dealt with by the provincial legislature. In recent years there has been an increasing worldwide trend to the "medicalization" of the problem of narcotic addiction with an emphasis upon the substitution of treatment and rehabilitation programs for conviction and punishment in drug related offences (see, for example, the Single Convention on Narcotic Drugs, 1961, supra).

In my opinion the "pith and substance" of the Heroin Treatment Act is the medical treatment of heroin addicts and is within the general provincial competence over health matters under s. 92(16) of the B.N.A. Act. I am in agreement with the Le Dain Commission that narcotic addiction is not a crime but a physiological condition necessitating both medical and social intervention. This intervention is necessarily provincial. The compulsory aspects of this intervention are incidental to the effectiveness of the treatment, narcotic addiction by its very nature being a compulsive condition over which the individual loses control. Although coercion will obviously play a significant role it seems to me that the dominant or most important characteristic of the Heroin Treatment Act is the treatment and not the coercion. The Legislature of British Columbia in my view has sought to treat persons found to be in a state of psychological or physical dependence on a narcotic as sick and not criminal. The Legislature is endeavouring to cure a medical condition, not to punish a criminal activity.

A factor which plays no part in the determination of the constitutional validity of the Act, but which, as a practical matter, is not negligible, is the support of both the provincial and federal authorities for the validity of the legislation. Although it does not resolve the constitutional issue it is interesting to observe that in these proceedings a provincial statute is being attacked on the ground that it falls within federal competence yet the Attorney General of Canada is not contesting the constitutionality of the provincial statute. He would like to see the provincial legislature remain in place. The federal legislation (which is not in force) foresees cooperation with the provinces whereby a narcotic addict who has not been charged with an offence of possession, if a provincial statute provides for custody for treatment, may be confined in a federal institution and deemed to have been sentenced to custody for treatment under the Narcotic Control Act. The provincial statute, on the other hand, provides that a person detained under a federal law may be detained or treated under the provincial statute, if the federal law so permits.

XI

Paramountcy

The next submission is that where Parliament and a provincial legislature have dealt with the same subject matter, and neither piece of legislation differs in legislative purpose or practical effect, the enactments cannot live together and operate concurrently. The constitutional doctrine of paramountcy then applies so as to invalidate the provincial legislation.

In advancing this argument the appellant relies to a great extent upon Part II of the Narcotic Control Act. McFarlane J.A. and McEachern C.J.S.C. declined to consider the provisions of that Part on the ground that it is as yet unproclaimed and of no legal effect. This is consistent with the decision of this Court in Canadian Indemnity Company v. Attorney-General of British Columbia, 1976 195 (SCC), [1977] 2 S.C.R. 504. In that case the Court, speaking through Mr. Justice Martland, referring to certain sections of the Automobile Insurance Act of British Columbia said at pp. 512-13: "None of these provisions has been proclaimed since this Act was enacted on April 18, 1973, and, consequently, they have never had any legal effect. In these circumstances I do not consider it necessary to determine the extent of their application, if proclaimed ...." In the absence of operative federal legislation no issue of paramountcy or conflict arises. There is no need to speculate upon the position which might arise if, and when, Part II of the Narcotic Control Act is proclaimed. For the time being, at least, the field is clear for the application of the provincial legislation here in issue, there being no possible conflict between federal legislation controlling illicit narcotics and provincial legislation for treatment of heroin dependent persons within a given province. Some persons may be subject to treatment, whether voluntary or compulsory, under the Heroin Treatment Act without being convicted offenders under the Narcotic Control Act. Equally, some persons who might be subject to prosecution under the Narcotic Control Act might not be subject to the provisions of the Heroin Treatment Act for the reason that they are not narcotic dependent persons. Not every addict is a person who has been charged under the provisions of the federal statute.

The two enactments are not in conflict in the sense that they are operationally incompatible or that compliance with one law necessarily requires the breach of the other (Smith v. The Queen, supra, at pp. 780, 781 and 799; Construction Montcalm Inc. v. Minimum Wage Commission, 1978 18 (SCC), [1979] 1 S.C.R. 754, at p. 780).

XII

Conclusion

In the circumstances of this case, I find that the Heroin Treatment Act is in pith and substance legislation in relation to health in the province and as such intra vires the provincial legislature in its entirety.

It should perhaps be noted, before concluding, that the Canadian Charter of Rights and Freedoms was not raised as an issue, nor argued in this Court or in the courts of British Columbia.

I would answer the questions settled by the Chief Justice in the negative. The Heroin Treatment Act is not ultra vires the Legislature of the Province of British Columbia.

I would dismiss the appeal with costs to the respondent.

The following are the reasons delivered by

ESTEY J.—I have had the opportunity of reading the reasons for judgment of my colleague Dickson J. and concur in the disposition made therein of this appeal. Because I arrive at this conclusion by a different route something should be said in explanation.

The subject matter of the legislation, its pith and substance, is medical treatment of the drug addict. The statute creates no offences and there is no suggestion that the 'treatment' under the statute is in truth punishment for addiction. McFarlane J.A., describes the statute:

... the provisions of the impugned statute for the examination, apprehension and detention of dependent persons or patients are in no way intended to be punitive. They are provided for as ancillary to "treatment" as defined. The legislative plan is not to punish users of narcotics. It is to provide facilities and other means designed to assist in terminating or diminishing a "patient's" use of or dependency on the defined narcotic.

As such the legislation finds its constitutional base in s. 92(7) of the Constitution Act: "The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals"; together with subs. 13 and 16 of s. 92.

Health is not a subject specifically dealt with in the Constitution Act either in 1867 or by way of subsequent amendment. It is by the Constitution not assigned either to the federal or provincial legislative authority. Legislation dealing with health matters has been found within the provincial power where the approach in the legislation is to an aspect of health, local in nature. Vide: Fawcett v. Attorney-General for Ontario, 1964 17 (SCC), [1964] S.C.R. 625; Re Bowack (1892), 1977 305 (BC SC), 2 B.C.L.R. 216; Reference re Intoxicated Persons Detention Act, 1980 3055 (MB CA), [1981] 1 W.W.R. 333 (Man. C.A.); and Greene v. Livermore, 1940 93 (ON SC), [1940] O.R. 381. On the other hand, federal legislation in relation to "health" can be supported where the dimension of the problem is national rather than local in nature (see: Attorney-General for Ontario v. Canada Temperance Federation, 1946 351 (UK JCPC), [1946] A.C. 193, at pp. 205-06; Toronto Electric Commissioners v. Snider, 1925 331 (UK JCPC), [1925] A.C. 396, at p. 412), or where the health concern arises in the context of a public wrong and the response is a criminal prohibition. In Russell v. The Queen (1882), 7 A.C. 829, at p. 839, Sir Montague Smith suggested the illustration of a law which prohibited or restricted the sale or exposure of cattle having a contagious disease. In Labatt Breweries of Canada Ltd. v. Attorney General of Canada, 1979 190 (SCC), [1980] 1 S.C.R. 914, the case of adulteration provisions in a statute was cited at p.934.

Health concerns are directly raised by the jurisdiction attributed to Parliament by s. 91(11) of the Constitution Act and may also be raised by s. 91(7) and perhaps subs. (2) as well. In sum "health" is not a matter which is subject to specific constitutional assignment but instead is an amorphous topic which can be addressed by valid federal or provincial legislation, depending in the circumstances of each case on the nature or scope of the health problem in question.

The Narcotic Control Act has been found in R. v. Hauser, 1979 13 (SCC), [1979] 1 S.C.R. 984, to be valid federal legislation under the general power to make laws for the peace, order and good government of Canada. But I do not read that authority as determining that narcotics addiction treatment as distinct from regulation of trafficking and use of narcotics is necessarily assigned to the peace order and good government powers of Parliament without more and in any case as being an assignment of the field to exclusive federal authority in the absence of parliamentary action.

Part II of the Narcotic Control Act was enacted in 1961 (1960-61 (Can.), c. 35) presumably in implementation of the Single Convention on Narcotic Control, 1961, to which Canada is a signatory. Part II, which has never been proclaimed, deals with treatment as an aspect of sentencing. Section 19 of that part is of interest in this proceeding:

19. (1) Where the legislature of a province enacts legislation that is designed to provide custody for treatment for persons who, although not charged with the offence of possession of a narcotic, are narcotic addicts, the Minister may enter into an agreement with the province, subject to the approval of the Governor in Council, for the confinement and treatment of such persons in institutions maintained and operated pursuant to the Penitentiary Act and for the release and supervision of such persons pursuant to the Parole Act.

(2) A narcotic addict who is committed to custody for treatment pursuant to an Act of the legislature of a province shall be deemed, for the purposes of the Penitentiary Act and the Parole Act, to have been sentenced to custody for treatment under this Act.

Whatever may be the case should action be taken by Parliament in implementing this part, health would appear to be a divisible field according to the nature of the measure taken.

The provincial statute may therefore be valid and effective in this field in the absence of federal legislation. On the advent of federal legislation other considerations arise and the provincial statute in that case may be displaced in whole or in part. None of these matters need be settled on this appeal.

As to the criminal law no issue here arises once the British Columbia statute is characterized for constitutional purposes as being in pith and substance related to the medical treatment of addiction and not to its punishment. Where treatment involves detention, the distinction between treatment and punishment is difficult, particularly where in the individual case at some periods in time no other 'treatment' is administered. Punishment and treatment look very much alike in some circumstances. Here the Court of Appeal was satisfied, and I am in respectful agreement, that this is health legislation and not legislation concerning the criminal aspects of drug trafficking.

The federal criminal power is not here challenged by some new doctrine of concurrent provincial criminal authority. The power of the province to enact quasi-criminal legislation must be predicated upon the existence of an otherwise' valid provincial legislative program. The offences created for the enforcement or establishment of such a program have been historically treated by the Court as being ancillary to the power of the provincial legislature invoked by the principal legislation. Without the existence of the prerequisite provincial authority independent of the offence creating provisions, the legislation would be invalid as trenching upon the exclusive federal jurisdiction in criminal law. Thus we see that provincial enforcement provisions may be validly adopted in the context of schemes clearly provincial as for example in the field of regulation of highways or the regulation of trading in securities. See: O'Grady v. Sparling, 1960 70 (SCC), [1960] S.C.R. 804; Mann v. The Queen, 1966 5 (SCC), [1966] S.C.R. 238; and Smith v. The Queen, 1960 12 (SCC), [1960] S.C.R. 776. Where on the other hand the provincial legislation is not founded in an independent subsection of s. 92 but is "in relation to what is conceived to be a public evil and not in relation to civil rights or local matters" (see Switzman v. Elbling, 1957 2 (SCC), [1957] S.C.R. 285, per Cartwright J., at p. 317) the provincial legislation will be struck down. Vide: Johnson v. Attorney General of Alberta, 1954 68 (SCC), [1954] S.C.R. 127; Saumur v. City of Quebec, 1953 3 (SCC), [1953] 2 S.C.R. 299; and Switzman v. Elbling, supra.

I would therefore find the British Columbia statute to be intra vires on the basis of the authority of the province under the subsections of s. 92 noted above and not being an invasion of the exclusive federal powers with reference to criminal law in s. 91(27). In reaching this conslusion, it must be emphasized that the divided or concurrent field of health legislation requires that any such interpretation or conclusion with reference to provincial legislation may come under subsequent review if and when it is joined in the field by federal legislation dealing with matters of national concern.

Appeal dismissed with costs.

Solicitor for the appellant: Morris Manning, Toronto.

Solicitor for the respondent: Broughton & Company, Vancouver.