SUPREME COURT OF CANADA

A.G. (Can.) v. Can. Nat. Transportation, Ltd., 1983 CanLII 36 (SCC), [1983] 2 SCR 206

Date: 1983-10-13

The Attorney General of Canada Appellant; and

Canadian National Transportation, Limited, Canadian National Railway Company Respondents;

and between

The Attorney General of Canada Appellant; and

Canadian Pacific Transport Company Limited and Kenneth G. Paulley Respondents;

and

The Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for New Brunswick, the Attorney General of British Columbia, the Attorney General for Saskatchewan, the Attorney General for Alberta Interveners.

File No.: 16998.

1982: September 23 and 24; 1983: October 13.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Constitutional law — Criminal law — Administration of justice — Charge under s. 32(1)(c) of Combines Investigation Act — Proceedings conducted by counsel authorized by federal Attorney General — Prohibition sought to prevent Provincial Court from proceeding while prosecution conducted by federal Attorney General — Whether or not s. 32(1)(c) of the Combines Investigation Act depends on the federal criminal law power (s. 91(27) of the Constitution Act) — If so, whether or not Parliament competent to authorize the federal Attorney General or his agents to prefer indictments and conduct proceedings — Constitution Act, 1867, ss. 91(27), 92(14) — Criminal Code, R.S.C. 1970, c. C-34, s. 2 — Interpretation Act, R.S.C. 1970, c. I-23, s. 27(2) — Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 15(2), 32(1)(c).

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Respondents and others were charged with unlawful conspiracy to lessen competition in interprovincial transport under s. 32(1)(c) of the Combines Investigation Act and conduct of the proceedings was given to counsel authorized by the Attorney General of Canada. Parliament had given prosecuting authority under the Criminal Code to the provincial authorities and had limited federal prosecutors to prosecuting proceeding instituted at the suit of the Government of Canada and dealing with a violation or conspiracy to violate any federal Act or regulation other than the Criminal Code.

Held: The appeal should be allowed.

Per Laskin C.J. and Ritchie, Estey and McIntyre JJ,: The federal Attorney General, even assuming that the Combines Investigation Act rest only on the criminal law power is entitled to prosecute under the Act and may enforce federal criminal legislation without provincial consent. Provincial prosecutorial power rested only on the abstention of the federal authorities from intervening in the prosecution of federal offences.

Section 92(14) does not embrace prosecutorial authority respecting the federal criminal law and does not diminish the ex facie impact of s. 91(27), which includes procedure in criminal matters. Although s. 92(14) grants jurisdiction over the administration of justice, it narrows the scope of the s. 91 criminal law power only with respect to "the Constitution, Maintenance, and Organization of Provincial Courts ... of Criminal jurisdiction" and could not be construed as including jurisdiction over the conduct of criminal prosecutions. Further, the general administration of justice power cannot be preferred over the special criminal law and procedure power; neither the language of s. 92(14), nor logic, would support such a construction. The practice of provincial prosecution continued as a practical accommodation in the post-Confederation period. The authorities indicated that this practical accommodation cast no doubt on the federal authority to invest and regulate the provincial prosecutorial power to enforce the federal criminal law. Section 92(14) was a grant of legislative power. If it encompassed authority over criminal prosecutions, federal legislation conferring prosecutorial power would be ultra vires, and any grant of prosecutorial authority by Parliament but with provincial consent would involve an unconstitutional delegation of legislative power.

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Parliament is competent to legislate respecting the prosecution of all federal law offences, without distinguishing whether or not those offences were dependent on the criminal law power. That the prosecution of a non-Criminal Code offence might oblige resort to the criminal law power does not make the offence a Criminal Code offence. Parliament can view the wide criminal law power disjunctively—as establishing offences and as prescribing penalties. Parliament did so here, by vesting prosecutorial authority in the federal Attorney General under s. 2 of the Criminal Code when it referred to non-Criminal Code offences, leaving the question of penal liability dependent on what is prescribed with respect to such offences.

Per Dickson J.: Section 32(1)(c) of the Combines Investigation Act can be upheld as valid federal legislation under both the criminal law power and the trade and commerce power. The federal trade and commerce power in s. 91(2) cannot be read in a literal sense. It is narrowed by a subtraction of provincial regulatory competence under s. 92(13). The federal power includes arrangements with regard to international and interprovincial trade and the general regulation of trade affecting the whole Dominion. Regulation of a single trade or business cannot be a question of general interest throughout the Dominion so as to be supportable under the "general" power in s. 91(2). Such regulation is at the heart of the local autonomy envisaged by the Constitution Act, 1867. A different situation obtains when what is at issue is general legislation aimed at the economy as a single integrated national unit rather than as a collection of separate local enterprises. Among the indicia for a valid exercise of the general trade and commerce power are the presence of a national regulatory scheme, the oversight of a regulatory agency and a concern with trade in general. Even stronger indications would be that the provinces were jointly or severally incapable of passing such an enactment and that failure to include one or more provinces or localities would jeopardize successful operation in other parts of the country.

When read in the context of s. 32 as a whole, of Part V of the Combines Investigation Act and of the entire Act, s. 32(1)(c) appears not as an isolated provision, but

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as part of a regulatory scheme. This scheme is one of national scope, general application and is concerned with trade as a whole rather than a single business. The scheme, aimed at the regulation of competition is an example of the genre of legislation that could not practically or constitutionally be enacted by a provincial government.

Since s. 32(1)(c) is valid under both the criminal law and trade and commerce powers there is concurrent federal and provincial prosecutorial authority. Were s. 32(1)(c) supportable solely under the criminal law power, only the provincial Attorney General could validly prosecute. Since the investigative aspect of anti-combines enforcement is properly conferred on federal officials and boards, concurrent prosecutorial authority, with its attendant prospect of federal paramountcy does not emperil effective enforcement of s. 32(1)(c), neither does it offend historical tradition or constitutional precedent. Accordingly s. 15(2) of the Combines Investigation Act and s. 2 of the Criminal Code, in so far as they refer to prosecutions under the Combines Investigation Act are both intra vires and the Attorney General of Canada has authority under s. 15(2) to conduct the prosecution at issue in this case. To the extent, however, that s. 2 of the Criminal Code grants the Attorney General of Canada authority to initiate and conduct prosecutions resting on offences created solely under the criminal law power, it is ultra vires, since authority with respect to those offences lies exclusively with the province.

Per Beetz and Lamer JJ.: Section 32(1)(c) of the Combines Investigation Act was validly enacted under Parliament's trade and commerce power and therefore its validity did not depend on the criminal law power, whether or not it could also be supported under that power.

R. v. Pelletier (1974), 1974 CanLII 596 (ON CA), 4 O.R. (2d) 677; R. v. Hauser, 1979 CanLII 13 (SCC), [1979] 1 S.C.R. 984, reversing but on other grounds, (1977), 1977 ALTASCAD 241, 37 C.C.C. (2d) 129; R. v. Hoffman-LaRoche Ltd. (1981), 1981 CanLII 1690 (ON CA), 33 O.R. (2d) 694, 24 C.R. (3d) 193, affirming (1980), 1980 CanLII 1615 (ON SC), 28 O.R. (2d) 164, 14 C.R. (3d) 289; Attorney-General for Ontario v. Attorney-General for Canada (Canada Standard Trade Mark Case), 1937 CanLII 366 (UK JCPC), [1937] A.C. 405, affirming Reference re Dominion Trade and Industry Commission Act, 1936 CanLII 51 (SCC), [1936] S.C.R. 379; R. v. Pontbriand (1978), 1978 CanLII 2180 (QC CS), 1 C.R. (3d) 97; Re Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919, 1921 CanLII 399 (UK JCPC), [1922] 1 A.C. 191, on appeal from (1920), 1920 CanLII 471 (SCC), 60 S.C.R. 456;

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Attorney General of Nova Scotia v. Attorney General of Canada, 1937 CanLII 39 (SCC), [1937] S.C.R. 403; Citizens Insurance Company of Canada v. Parsons (1881), 7 App. Cas. 96; MacDonald v. Vapor Canada Ltd., 1976 CanLII 181 (SCC), [1977] 2 S.C.R. 134; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, 1979 CanLII 190 (SCC), [1980] 1 S.C.R. 914, considered; Toronto v. Attorney-General for Canada, 1945 CanLII 397 (UK JCPC), [1946] A.C. 32; R. v. Lawrence (1878), 43 U.C.Q.B. 164; Ex parte Duncan (1872), 16 L.C.J. 188; R. v. Bush (1888), 15 O.R. 398; R. v. St. Louis (1897), 1897 CanLII 110 (QC CS), 1 C.C.C. 141; Re Public Inquiries Act (1919), 1919 CanLII 551 (BC CA), 3 W.W.R. 115; Attorney General of Nova Scotia v. Attorney General of Canada, 1950 CanLII 26 (SCC), [1951] S.C.R. 31; Tennant v. Union Bank of Canada, [1894] A.C. 31; Attorney-General of Ontario v. Attorney-General of Canada (Assignments and Preferences case), [1894] A.C. 189; Attorney General of Canada v. C.P.R. and C.N.R., 1958 CanLII 41 (SCC), [1958] S.C.R. 285; Nykorak v. Attorney-General of Canada, 1962 CanLII 38 (SCC), [1962] S.C.R. 331; Grand Trunk Railway Company of Canada v. Attorney-General of Canada, [1907] A.C. 65; Di Iorio v. Warden of the Montreal Jail, 1976 CanLII 1 (SCC), [1978] 1 S.C.R. 152; Proprietary Articles Trade Association v. Attorney-General for Canada, 1931 CanLII 385 (UK JCPC), [1931] A.C. 310; Reference re Section 498A of the Criminal Code, 1936 CanLII 45 (SCC), [1936] S.C.R. 363; Attorney-General for British Columbia v. Attorney-General for Canada, 1937 CanLII 365 (UK JCPC), [1937] A.C. 368; R. v. Campbell (1965), 1966 CanLII 519 (SCC), 58 D.L.R. (2d) 673, affirming (1964), 1964 CanLII 612 (ON CA), 46 D.L.R. (2d) 83; Goodyear Tire and Rubber Co. v. The Queen, 1956 CanLII 4 (SCC), [1956] S.C.R. 303; Jabour v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307; Lawson v. Interior Tree Fruit and Vegetable Committee, 1930 CanLII 91 (SCC), [1931] S.C.R. 357; Bank of Toronto v. Lambe (1887), 12 App. Cas. 575; City of Montreal v. Montreal Street Railway Co. (1912), 1912 CanLII 352 (UK JCPC), 1 D.L.R. 681; Reference re Natural Products Marketing Act, 1936 CanLII 21 (SCC), [1936] S.C.R. 398; Reference re Alberta Statutes, 1938 CanLII 1 (SCC), [1938] S.C.R. 100; Reference re Farm Products Marketing Act, 1957 CanLII 1 (SCC), [1957] S.C.R. 198; John Deere Plow Co. v. Wharton, 1914 CanLII 603 (UK JCPC), [1915] A.C. 330; Toronto Electric Commissioners v. Snider, 1925 CanLII 331 (UK JCPC), [1925] A.C. 396, [1925] 2 D.L.R. 5; Attorney-General for Canada v. Attorney-General for Alberta (Insurance Reference), 1916 CanLII 424 (UK JCPC), [1916] 1 A.C. 588; Aetna Insurance Co. v. The Queen, 1977 CanLII 174 (SCC), [1978] 1 S.C.R. 731; P.G. du Canada v. Miracle Mart Inc., [1982] C.S. 342; Rocois Construction Inc. v. Quebec Ready Mix Inc., 1979 CanLII 4144 (FC), [1980] 1 F.C. 184; The King v. Eastern Terminal Elevator Co., 1925 CanLII 82 (SCC), [1925] S.C.R. 434, [1925] 3 D.L.R. 1; R. v. Wetmore, 1983 CanLII 29 (SCC), [1983] 2 S.C.R. 284, referred to.

APPEAL from a judgment of the Alberta Court of Appeal (1982), 1982 ABCA 50, 135 D.L.R. (3d) 89, 66 C.C.C. (2d) 241, 27 C.R. (3d) 138, 35 A.R. 132, 18 Alta.

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L.R. (2d) 223, 1982 ABCA 50, [1982] 2 W.W.R. 673, allowing an appeal from a judgment of Medhurst J. dismissing an application for an order in the nature of prohibition preventing the Provincial Court of Alberta from allowing proceedings to continue. Appeal allowed.

J. J. Robinette, Q.C., and D. H. Cristie, Q.C., for the appellant.

E. C. Chiasson, R. W. Lusk, and P. G. Foy, for the respondents Canadian National Transportation, Limited, and Canadian National Railway Company.

N. D. Mullins, Q.C., and M. M. Szel, for the respondents Canadian Pacific Transport Company Limited and Kenneth G. Paulley.

William Henkel, Q.C., and Nolan D. Steed, for the intervener the Attorney General for Alberta.

John Cavarzan, Q.C., for the intervener the Attorney General for Ontario.

Henri Brun, Lorraine Pilette, and Jean-François Dionne, for the intervener the Attorney General of Quebec.

John H. Evans and Claude Pardons, for the intervener the Attorney General for New Brunswick.

E. R. A. Edwards and Joseph J. Arvay, for the intervener the Attorney General of British Columbia.

James C. MacPherson, for the intervener the Attorney General for Saskatchewan.

The judgment of Laskin C.J. and Ritchie, Estey and McIntyre JJ. was delivered by

Judgment of Laskin C.J., Ritchie, Estey and McIntyre JJ.

THE CHIEF JUSTICE—The issue in this appeal engages the constitutional power of the provincial legislatures to control through their own officers the prosecution in the provincial courts of offences validly created by legislation of the Parliament of Canada. Although the constitutional questions posed in this appeal have a narrower compass by being limited to the preferring of indictments and the conduct of prosecutions under the Combines Investigation Act, R.S.C. 1970, c. C-23, as amended,

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it became obvious during the course of the argument in this Court that the constitutional issues require a broader and principled canvass of the scope of provincial power under s. 92(14) of the former British North America Act, now the Constitution Act, 1867, and its relation to the federal power under s. 91(27).

Section 92(14) gives powers to the provincial Attorneys General in relation to

92. .

93. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

Section 91(27) is among the federal powers that are confided to the exclusive legislative authority of Parliament "notwithstanding anything in this Act" and embraces the following:

91….

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

It will be seen in what is said later in these reasons that it is logically, and in practical terms as well, impossible to fasten on s. 92(14) and s. 91(27) without also considering whether s. 92(14), if it has the scope contended for by the provincial legislatures, also extends to other grants of federal power under s. 91, including s. 91(2), being legislative authority in relation to the regulation of trade and commerce, which is implicitly included in the constitutional questions posed in this appeal.

Confining myself for the time being to the particular questions raised in this appeal, they read as follows:

1. Does the constitutional validity of Section 32(1)(c) of the Combines Investigation Act, S.C. 1970, c. C-23,

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depend upon Section 91(27) of the British North America Act?

2. If so, is it within the competence of the Parliament of Canada to enact legislation as in Section 2 of the Criminal Code, and Section 15(2) of the Combines Investigation Act, to authorize the Attorney General of Canada or his agents to prefer indictments and conduct proceedings in respect of alleged violations of the afore-mentioned provision?

They require fleshing out to show how they arose and I turn to the relevant facts.

II

II

An officer under the federal Combines Investigation Act swore an information against the respondents, charging them and other corporations and individuals with unlawful conspiracy to prevent or lessen unduly competition in the interprovincial transportation of general merchandise in shipments weighing up to and including ten thousand pounds from points in Alberta to points in British Columbia, Saskatchewan and Manitoba to points in Alberta. The charge alleged a violation of s. 32(1)(c) of the Combines Investigation Act which is in the following terms:

32. (1) Every one who conspires, combines, agrees or arranges with another person

(c) to prevent, or lessen, unduly, competition in the production, manufacture, purchase, barter, sale, storage, rental, transportation or supply of a product, or in the price of insurance upon persons or property, .. .

is guilty of an indictable offence and is liable to imprisonment for five years or a fine of one million dollars or to both.

The conduct of the proceedings was put in the hands of counsel authorized by the Attorney General of Canada. Prohibition was thereupon sought by various of those charged with the offence to restrain the Alberta Provincial Court, before

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which the information was brought, from proceeding thereon so long as the prosecution was to be conducted by counsel for the federal Attorney General. Medhurst J. of the Alberta Court of Queen's Bench dismissed the application brought by the respondents herein, Canadian Pacific Transport Company Limited and Kenneth G. Paulley and by Canadian National Transportation, Limited. He held that s. 15(2) of the Combines Investigation Act expressly, if valid, authorized the intended prosecution by or under the federal Attorney General and noted also that s. 27(2) of the Interpretation Act, R.S.C. 1970, c. I-23, made provisions of the Criminal Code of Canada applicable equally to all federal statutes unless otherwise provided.

Section 15(2) of the Combines Investigation Act reads as follows:

15....

(2) The Attorney General of Canada may institute and conduct any prosecution or other proceedings under this Act, and for such purposes he may exercise all the powers and functions conferred by the Criminal Code on the attorney general of a province.

The definition of s. 2 (hereinafter referred to as s. 2(2)) of "Attorney General" in the Criminal Code embraces the Attorney General or Solicitor General of a province and as well federal prosecuting authorities in the following specification:

2. In this Act

"Attorney General" means the Attorney General or Solicitor General of a province in which proceedings to which this Act applies are taken and, with respect to

(a) the Northwest Territories and the Yukon Territory, and

(b) proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a violation of or conspiracy to violate any Act of the Parliament of Canada or a regulation made thereunder other than this Act,

means the Attorney General of Canada and, except for the purposes of subsections 505(4) and 507(3),

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includes the lawful deputy of the said Attorney General, Solicitor General and Attorney General of Canada;

It was the federal Parliament's decision to give general prosecuting authority under the Criminal Code to the provincial Attorneys General or Solicitors General and to limit federal prosecutors to the prosecution of proceedings instituted at the suit of the Government of Canada in respect of a violation or conspiracy to violate any federal Act or regulation thereunder other than the Criminal Code.

Medhurst J. considered, inter alia, the judgments of the Ontario Court of Appeal in R. v. Pelletier (1974), 4. O.R. (2d) 677, and of the Alberta Court of Appeal and the Supreme Court of Canada in R. v. Hauser, 1979 CanLII 13 (SCC), [1979] 1 S.C.R. 984. He concluded that although the Combines Investigation Act had previously been considered as validly authorized under the federal criminal law power, amendments in 1975 had enlarged its reach to make it supportable as federal legislation in relation to the regulation of trade and commerce. He adopted the approach taken in that respect by Linden J. in R. v. Hoffman-LaRoche Ltd. (1980), 1980 CanLII 1615 (ON SC), 14 C.R. (3d) 289, and rejected the application for prohibition. I shall return shortly to the judgments in Pelletier, Hauser and Hoffman-LaRoche.

On the appeal to the Alberta Court of Appeal, Prowse J.A., speaking for the Court consisting of himself, Haddad and Laycraft JJ.A., held that s. 32(1)(c) of the Combines Investigation Act does not depend for its validity in whole or in part on the federal trade and commerce power. Indeed, if it was to be viewed as a regulatory scheme and not as criminal law under s. 91(27) it would be ultra vires as beyond federal competence. Viewed as an exercise of the federal criminal law power under s. 91(27), he concluded that the Hauser case applied to preclude the federal conduct of the prosecution under s. 32(1)(c) of the Combines Investigation Act. He rejected the judgment in Hoffman-LaRoche, being unwilling to see the Combines Investigation Act as a conjoint exercise of federal power in relation to the regulation of trade and commerce as well as in relation to the criminal

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law. This, however, appeared to be the contrary view both of Linden J. in Hoffman-LaRoche and of Medhurst J. here.

I would add at this point that after leave was given to the Attorney General of Canada to bring the case here, interventions were allowed by the Attorneys General of Alberta, Ontario, Quebec, British Columbia, Saskatchewan, and New Brunswick.

III

III

Implicit in the first of the two questions raised in this appeal was the contention, pursued by the Attorney General of Canada, that if the Combines Investigation Act, and especially s. 32(1)(c) thereof, was supportable under the federal trade and commerce power, the assertion of exclusive provincial prosecutorial authority would be precluded even if (and this was also contested) it was sustainable in relation to the prosecution of criminal offences. 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. If exclusive provincial authority rests in the latter, it must equally rest in the former. Indeed, counsel for the respondent Canadian National Transportation, Limited was bold enough—and I think he was logically right-to sweep all offences under federal legislation, enacted pursuant to federal enumerated power under s. 91, into the exclusive care and authority of provincial prosecuting officers. In short, if the provinces are constitutionally in control of criminal prosecutions, they must equally be in control of other prosecutions resting on violation of federal legislation other than under the criminal law, at least so far as the prosecutions are brought in provincial courts. Any reading of s. 92(14) of the provincial catalogue of powers does not exhibit any special mention, indeed there is no

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mention, of criminal offences.

I am content, however, to limit my examination of the constitutional submissions in this appeal to the question whether, assuming that the Combines Investigation Act rests only on the criminal law power (as distinguished from a Criminal Code offence, an important distinction in my opinion), the federal Attorney General is not entitled to prosecute offences under the Act and, as was alleged in argument for the respondents and for the intervening provinces, may only intrude to enforce federal criminal legislation by permission or delegation or nomination of a province.

IV

IV

Until the Criminal Code was amended by 1968-69 (Can.), c. 38, s. 2(1), the federal Attorney General, his lawful deputy and the Solicitor General were excluded from the general definition of Attorney General in that section, although there are references elsewhere to provisions requiring the federal Attorney General's consent to prosecute, as for example, in ss. 592 and 593 of the Criminal Code, R.S.C. 1906, c. 146. This was not, however, the first time in federal legislation that the federal Attorney General was given prosecutorial authority. It was given under the Combines Investigation Act by 1960 (Can.), c. 45, ss. 6, 11, 12 and 16 under which the then Exchequer Court of Canada was given a limited jurisdiction over criminal prosecutions under that Act. That jurisdiction is now generalized in s. 15(2) of the present Act which also confers specified jurisdiction on the Federal Court of Canada under s. 29, where patents are allegedly used to restrain trade, or on both the Federal Court of Canada or a provincial superior court of criminal jurisdiction, where injunctive relief is sought against a violation of the prohibition of anti-competitive practices, for example, s. 32(1)(c).

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There were even earlier instances of federal prosecutorial authority under the federal Dominion Trade and Industry Commission Act, 1935 (Can.), c. 59, s. 22. There the Attorney General of Canada was authorized in certain circumstances to institute criminal proceedings for violation of federal laws prohibiting unfair trade practices and this authority was held to be validly conferred: see Reference re Dominion Trade and Industry Commission Act, 1936 CanLII 51 (SCC), [1936] S.C.R. 379, aff d 1937 CanLII 366 (UK JCPC), [1937] A.C. 405.

In an almost contemporaneous case, Attorney-General of Nova Scotia v. Attorney-General of Canada, 1937 CanLII 39 (SCC), [1937] S.C.R. 403, the Court was concerned with a prosecution brought under the Customs Act and under the Criminal Code and with the disposition of certain fines and costs. The validity of the proceedings which had been instituted by the federal Government was expressly approved by the Court, although the issue was clouded (as was said in the Pelletier case at p. 689), by Rinfret J.'s reliance on a statement by Chisholm C.J., suggesting that in prosecuting revenue laws the federal government acted nominally under the provincial Attorney General. There was an unqualified recognition of federal prosecutorial authority in Toronto v. Attorney-General for Canada, 1945 CanLII 397 (UK JCPC), [1946] A.C. 32, involving a right to receive fines imposed by the Ontario Supreme Court for convictions under a combines offence under the Criminal Code. Indeed, the Attorney General of Ontario expressly disavowed any intention to interfere when the combines involved other provinces besides Ontario. The Government of Canada, in the result, was held entitled to receive the fines.

The constitutional question which is raised as a result of the foregoing decisions is whether provincial prosecutorial power rested and has rested only on the abstention of the federal authorities from

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intervening in the prosecution of federal offences. I start at the beginning in the consideration of this question, namely, the initial creation of the Canadian federation in 1867 under the then British North America Act.

V

V

When the Canadian federation came into being, it was obvious that existing laws of the confederating provinces and existing courts, powers and authorities had to be continued subject to being altered in accordance with the distribution of legislative power under the federating Act. Section 129 covered the matter in these words.

129. 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, Administrative, 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.

Since the Province of Canada was to be separated into the two provinces of Ontario and Quebec, provision had to be made for maintaining the power and authority of certain executive officers "until the Legislature of Ontario or Quebec otherwise provides", as set out in s. 135. This section, specially tailored to the pre-Confederation Province of Canada, was as follows:

135. Until the Legislature of Ontario or Quebec otherwise provides, all Rights, Powers, Duties, Functions, Responsibilities, or Authorities at the passing of this Act vested in or imposed on the Attorney General, Solicitor General, Secretary and Registrar of the Province

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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 Commissioner of Public Works.

I need only add that there is nothing in this section which overrides or qualifies the governing provisions of s. 129.

The Parliament of Canada moved, soon after Confederation, to exercise the new federal legislative power conferred upon it under s. 91. One of its early exercises of power was in relation to the substantive criminal law and this was almost coincident with a statute, 1869 (Can.), c. 29, respecting procedure in criminal matters. The preamble referred to an earlier federal Act which had assimilated, amended and consolidated and extended to all of Canada certain provisions of the statute law of the several provinces respecting certain crimes and offences. It then rehearsed (in the preamble) that in like manner it was expedient to assimilate, amend and consolidate and to extend certain other provisions of the said statute law respecting procedure and other matters not included in the previous Act. The 1869 Act dealt with the prosecution of indictable offences and it defined indictment widely to include information, inquisition and presentment. Section 28 treated the role of the provincial Attorney General or Solicitor General as coming under the scope of the federal Act. It provided that no bill of indictment for certain specified offences should be presented or found by any grand jury unless, inter alia, the indictment for such offence was preferred by the direction of the Attorney General or Solicitor General for the Province or of a Judge of a Court having jurisdiction to give such direction or to try the offence.

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In this and related legislation, prosecutors or complainants had standing to invoke the criminal law, in broader compass than was later permitted. Some of the late nineteenth century legislation, as for example, The Canada Temperance Act, R.S.C. 1886, c. 106, and The General Inspection Act, R.S.C. 1886, c. 99 provided for prosecutions by federally-appointed inspectors. Other legislation of the period, for example, legislation respecting safety of ships, 1891 (Can.), c. 38, and The Live Stock Shipping Act 1891 (Can.), c. 36, provided for prosecution only upon consent of the federal Minister. An Act of 1890 (Can.), c. 10, respecting Prevention of Disclosure of Official Documents and Information provided for prosecution only with the consent of the Attorney General of Canada or of the province. Penalties for violation of The Bank Act, 1890 (Can.), c. 31, were recoverable and enforceable at the suit of Her Majesty, instituted by the Attorney General of Canada, or the Minister of Finance or the Receiver General. These are merely samples of legislation preceding the enactment of the Criminal Code in 1892 which showed the wide authority exercised by and under federal legislation in matters of criminal procedure or prosecution.

I am not aware that during this period there was any attempt by a province to enact legislation that would limit prosecution for federal criminal offences, let alone any other types of offences, to a provincial Attorney General or prosecutor. Nor did the provinces purport to enact post-Confederation legislation of their own to command prosecutorial authority in respect of federal criminal law offences. Until federal legislation embraced the provincial Attorney General and Solicitor General within the scope of its criminal enactments, those officers exercised their prosecutorial authority pursuant to pre-Confederation legislation as continued under s. 129, which I have previously quoted.

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The generalized definition of provincial Attorney General or Solicitor General appeared in the original Criminal Code, 1892 (Can.), c. 29. Section 3(b) of the Code was as follows:

3. In this Act the following expressions have the meanings assigned to them in this section unless the context requires otherwise:

(b) The expression "Attorney-General" means 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 Northwest Territories and the district of Keewatin, the Attorney-General of Canada;

This provision had its origin in s. 2 of The Explosive Substances Act, R.S.C. 1886, c. 150, which was in these terms:

2. In this Act, unless the context otherwise requires,—

(a) The expression "Attorney General" means the Attorney General of the Province of 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;

In the revised Criminal Code of 1906, R.S.C. 1906, c. 146, the definition of "Attorney General of Canada" was slightly altered by replacing the earlier term "district of Keewatin" by the term "the Yukon Territory".

This limited reference to the Attorney General of Canada remained unaltered until the Criminal Law Amendment Act, 1968-69, 1968-69 (Can.), c. 38, introduced a major change under s. 2, which I have already quoted. In the meantime, the definition and reference to provincial Attorney General remained the same. It appears that it was this introduction of a generalized prosecutorial authority in the Attorney General of Canada that brought about the provincial claim that criminal procedure under s. 91(27) of the then British North America Act did not give legislative authority to Parliament against the mandate of s. 92(14) so as to empower the federal Attorney General to prosecute offences engaging the violation of validly

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enacted federal criminal law.

VI

VI

Language and logic inform constitutional interpretation, and they are applicable in considering the alleged reach of s. 92(14) and the allegedly correlative limitation of criminal procedure in s. 91(27). I find it difficult, indeed impossible, to read s. 92(14) as not only embracing prosecutorial authority respecting the enforcement of federal criminal law but diminishing the ex facie impact of s. 91(27) which includes procedure in criminal matters. As a matter of language, there is nothing in s. 92(14) which embraces prosecutorial authority in respect of federal criminal matters. Section 92(14) grants jurisdiction over the administration of justice, including procedure in civil matters and including also the constitution, maintenance and organization of civil and criminal provincial courts. The section thus narrows the scope of the criminal law power under s. 91, but only with respect to what is embraced within "the Constitution, Maintenance, and Organization of Provincial Courts ... of Criminal Jurisdiction". By no stretch of language can these words be construed to include jurisdiction over the conduct of criminal prosecutions. Moreover, as a matter of conjunctive assessment of the two constitutional provisions, the express inclusion of procedure in civil matters in provincial Courts points to an express provincial exclusion of procedure in criminal matters specified in s. 91(27).

There is, in addition, an attempt here to prefer the general administration of justice over the special criminal law and procedure, when there is no language in the former to override or even suggest the latter. The respondents and the supporting interveners submit that because s. 92(14) includes the constitution of courts of "criminal jurisdiction", the word "criminal" must be imported into the opening words of the section, which must be construed as if they said "the Administration of Civil and Criminal Justice in the Province". However,

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this is not how the section was drafted; neither logic nor grammar support this construction.

I have not been able to find any recognition in post-Confederation texts, such as Lefroy, Legislative Power in Canada (1897-98), of provincial prosecutorial authority of offences under the federal criminal law. Indeed, such cases as R. v. Lawrence (1878), 43 U.C.Q.B. 164, and Ex parte Duncan (1872), 16 L.C.J. 188, affirm the federal authority not only in relation to criminal law, but in relation to criminal procedure, that is as said in the Duncan case, to punish and to that end to regulate procedure.

It has been urged, however, that there are other post-Confederation cases that recognized an alleged primacy, if not exclusiveness, in provincial authority in respect of prosecutions of federal crimes. I can find nothing in R. v. Bush (1888), 15 O.R. 398, that recognizes provincial primacy or exclusiveness. This case dealt with the appointment of justices of the peace, a matter of the constitution of courts and not with the conduct of prosecutions. Indeed, in referring to s. 92(14), Street J. reserved "procedure in criminal matters". Nothing said in R. v. St. Louis (1897), 1897 CanLII 110 (QC CS), 1 C.C.C. 141, indicates anything different. At the time the case was heard there was no provision for interposition by the federal Attorney General in what was an ordinary criminal prosecution, obtaining money by false pretences. It was, however, open to him to intervene with the leave of the Court, at least in respect of a matter relating to the Government of Canada. The remarks of Wurtele J. suggesting provincial primacy were merely obiter and, indeed, are difficult to reconcile with the ratio.

It must be remembered, at the risk of undue repetition, that the practice of provincial prosecution

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was continued after 1867 into post-1867 by virtue of s. 129. It was a practical accommodation to allow this to continue, and the affirmation of this practice under the 1892 Criminal Code and in ensuing years did not, as I read the authorities, cast any doubt on federal authority to invest and regulate provincial prosecutorial power to enforce the federal criminal law. Re Public Inquiries Act (1919), 1919 CanLII 551 (BC CA), 3 W.W.R. 115, does not disturb this view. One would have expected an attempt by the provinces, soon after Confederation, or even later at some point in constitutional evolution, to assert an independent provincial authority to control prosecutions of the criminal law. There was none, and there is still none, save for the objection taken to the inclusion of the federal Attorney General in the definition of s. 2.

It must be remembered that s. 92(14) is a grant of legislative power and if it gave the provinces legislative authority over the conduct of criminal prosecutions, then federal legislation conferring prosecutorial authority on either provincial or federal Attorneys General would be ultra vires. It cannot be argued that Parliament confers prosecutorial authority only with the consent of the provinces, for this would involve an unconstitutional delegation of legislative power: see Attorney General of Nova Scotia v. Attorney General of Canada, 1950 CanLII 26 (SCC), [1951] S.C.R. 31. The provincial position appears to blur legislative and executive power and to treat s. 92(14) as if it were a grant of executive power to which the legislative power of Parliament under s. 91(27) was subordinate.

I have examined the pre-Confederation debates in the then provincial Parliament of Canada. The resolutions introduced on February 3, 1865 into the Legislative Council were in pursuance of those that were adopted at the Charlottetown Conference of 1864 and included what were and what remained the terms included in s. 92(14) (it was originally s. 43(17)) and s. 91(27) (it was originally s. 29(32)).

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There are, at best, general observations in the Confederation Debates respecting criminal law and procedure. John A. Macdonald referred (at p. 41) to the principle that the determination of what is a crime and how crime shall be punished is to be left to the general government. References to the administration of justice were in such general terms (see pp. 69, 215, 248) as to be of no particular significance. Mr. Hector Langevin, then Solicitor General East, viewed what is now s. 92(14) as providing protection to Quebec civil law. Mr. Christopher Dunkin raised the question (at p. 508) that there is a special refinement of confusion as to criminal matters. He put the matter as follows (at p. 508 bottom):

... Criminal procedure is to be federal; civil procedure, provincial; criminal legislation, proper, is to be federal; but with a most uncertain quantity of what one may call legislation about penalties, provincial; civil rights, in the main, provincial; but with no one can tell how much of federal interference and over-ruling, and all with courts provincial in constitution, but whose judges hold by federal tenure and under federal pay. I pity the poor man who is at once a criminal judge and a civil judge.

Nothing in these observations touch the issue now before us, nor is there any basis for any special reading of the Charlottetown or the subsequent London Palace Hotel resolutions to gloss the present s. 92(14) and s. 91(27) in the way proposed by the respondents and their supporting interveners.

VII

VII

It is patent that neither the respondents nor their supporting interveners view the present case as pointing to possible concurrency. Since Parliament has in fact legislated, that would defeat their contention without more. Yet there is good reason to say that even if there is merit in the respondents' position, there is at least equal merit in the assertion of parliamentary authority to control

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prosecution for violation of the federal criminal law. The issue, put in these terms, is not a new one. The Privy Council explained the matter in terms of the so-called trenching doctrine in Tennant v. Union Bank of Canada, [1894] A.C. 31, as supporting a privileged encroachment on provincial legislative authority to give effect to exclusive and paramount federal power in relation to the classes of subjects assigned to Parliament under the enumerated heads of s. 91. The obverse view arises, as shown in the Assignments and Preferences case, Attorney-General of Ontario v. Attorney-General of Canada, [1894] A.C. 189, when there is an absence of federal legislation to supersede the lawful enactment of provincial legislation within one of its assigned powers.

Two observations, one by former Justice Rand and the second by former Justice Judson, are, in my opinion, a more reasonable approach to the so-called trenching doctrine and its associated "ancillary" or necessarily incidental doctrines than those expressed by the Privy Council in Tennant v. Union Bank of Canada. In Attorney General of Canada v. C.P.R. and C.N.R., 1958 CanLII 41 (SCC), [1958] S.C.R. 285, at pp. 290-91, Rand J. said this:

Powers in relation to matters normally within the provincial field, especially of property and civil rights, are inseparable from a number of the specific heads of s. 91 of the British North America Act under which scarcely a step could be taken that did not involve them. In each such case the question is primarily not how far Parliament can trench on s. 92 but rather to what extent property and civil rights are within the scope of the paramount power of Parliament. Tennant v. The Union Bank of Canada [[1894] A.C. 31] in which a provision under the Bank Act for taking security for loans made by a bank in disregard of provincial forms of security and registration was upheld, is a characteristic example.

Judson J. was even more emphatic in his judgment in Nykorak v. Attorney General of Canada, 1962 CanLII 38 (SCC), [1962] S.C.R. 331. That case concerned the validity of federal legislation under which the Crown

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had assumed liability for the conduct of members of the armed forces under a statutorily prescribed master-servant relationship and sought to recover from a wrongdoer expenses incurred in the case of an injured serviceman. The learned Justice upheld the legislation, saying that "legislation of this kind comes squarely under head 7 of s. 91, notwithstanding the fact that it may incidentally affect property and civil rights within the province. It is meaningless to support this legislation as was done in the Grand Trunk case, [Grand Trunk Railway Company of Canada v. Attorney-General of Canada], [1907] A.C. 65, on the ground that it is `necessarily incidental' to legislation in relation to an enumerated class of subject in s. 91."

Those two references exhibit the strength of the force residing in an enumerated class of subject in s. 91 when all those classes are expressed to repose legislative authority in Parliament, both exclusively and notwithstanding anything in s. 92. The effect so given resides in s. 91(27) no less than in other enumerations in s. 91.

VIII

VIII

I come now, at long last, to consider the case law which has developed around s. 92(14) and s. 91(27) since the introduction of federal prosecution of criminal law offences under the amendment of the Criminal Code by 1968-69 (Can.), c. 38, s. 2(1). There are four cases to be considered, apart from the present one, the first in time being R. v. Pelletier, supra, (leave to appeal here refused: see [19741 S.C.R. x); the second in time being Re Hauser and The Queen (1977), 1977 ALTASCAD 241, 37 C.C.C. (2d) 129, rev'd here on other grounds, 1979 CanLII 13 (SCC), [1979] 1 S.C.R. 984; the third being R. v. Pontbriand (1978), 1978 CanLII 2180 (QC CS), 1 C.R. (3d) 97, [1978] C.S. 134 and the fourth, R. v. Hoffman-LaRoche Ltd. (1980), 1980 CanLII 1615 (ON SC), 14 C.R. (3d) 289, aff'd on appeal (1981), 1981 CanLII 1690 (ON CA), 24 C.R. (3d) 193.

Pelletier, which was decided by Gale C.J.O., Estey and Martin JJ.A., involved a charge of

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conspiracy to traffic in a narcotic contrary to s. 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1, and the then s. 408 (now s. 423(1) (d)) of the Criminal Code. The issue relevant to the present case was whether it was open to the federal Attorney General to prosecute the offence, pursuant to the authority conferred upon him under s. 2(2) of the Criminal Code, as introduced by 1968-69 (Can.), c. 38. There is no doubt that, absent federal authorizing legislation, prosecution of criminal law offences (and this charge was so characterized in Pelletier), lay in the provincial Attorney General under the original terms of s. 2(2) of the Code and, also, prior to that time as a historical continuation of pre-Confederation authority. The Ontario Court of Appeal in Pelletier found no difficulty in finding proper constitutional authority in the federal Attorney General under s. 91(27) of the British North America Act, 1867.

There was an extensive examination in Pelletier of various instances, prior to the 1968-69 amendment to s. 2(2) of the Code, under which federal prosecution took place without objection. I have dealt with these in an earlier part of these reasons and need not repeat them here. I would add that the Ontario Court of Appeal had no difficulty in finding constitutional authority to authorize prosecution by the federal Attorney General in s. 91(27). I may, however, refer to a passage in Pelletier which underlines the scope of the authority in the federal Attorney General in his prosecutorial role. Estey J.A., as he then was, delivered the judgment of the Ontario Court of Appeal and said this (at pp. 695-96):

The status of the Attorney-General of Canada in relation to certain proceedings under the Criminal Code is particularized in the Code itself:

(a) By ss. 624, 748, 762(3) and 771(5), the Attorney-General of Canada has

the same rights of appeal in proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government as the Attorney General of a province has .. .

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(b) By s. 617 the Minister of Justice of Canada is given power to direct a new trial or to refer a matter to the Court of appeal for an opinion.

(c) By s. 6(5) and several other sections to the Code, the consent of the Attorney-General of Canada is required before certain proceedings may be instituted.

In passing it is observed that the requirement imposed by the Code is simply that the proceedings "be instituted at the instance of the Government of Canada" and not a more exacting requirement that the information be sworn by an officer thereof. In the case before us the indictment was preferred by an officer of the Government of Canada and, for reasons mentioned earlier, these proceedings come squarely within the prerequisite mentioned in many of the foregoing sections.

Furthermore, it is noted that s. 2 of the Code defines prosecutor as follows:

"prosecutor" means the Attorney General or, where the Attorney General does not intervene, means the person who institutes proceedings to which this act applies, and includes counsel acting on behalf of either of them;

(Emphasis added.) Once again it appears from the wording adopted that Parliament has intended to include in this definition persons other than the provincial Attorneys-General, whatever the definition of "Attorney General" may be elsewhere in the same s. 2, and to include counsel acting on behalf of such other persons including, in my view, counsel acting for the Attorney-General of Canada. This definition of prosecutor when read along with ss. 504 and 505(1)(6), the latter being the section under which the indictment herein was preferred by the agent of the Attorney-General for Canada, appears to accord to the Attorney-General of Canada a status as prosecutor and does not require a Court to follow to the strained conclusion reached in The Queen v. St. Louis, supra, that the Attorney-General of Canada stands in the provincial criminal Courts in a position analogous to that of a private prosecutor.

I add another passage from these reasons, as set out at p. 697:

By s. 27 of the Interpretation Act of Canada, which I have set out above, all the provisions of the Criminal Code relating to indictable offences are made applicable to indictable offences created by other statutes. It may therefore be argued that in both cases the proceedings

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resulting from the charges directly or ultimately relating to the Narcotic Control Act are "proceedings ... in respect of a violation of ... any Act ... other than this Act", that is to say, other than the Code. If that be so, then provided that that portion of s. 2(2) is intra vires the Parliament of Canada, the Attorney-General of Canada has been granted status in both proceedings.

Although the Court was prepared to uphold the prosecutorial authority of the federal Attorney General on the basis of federal executive authority, it was not necessary for it to do so because of the consideration it gave to the definition of Attorney General in s. 2. This is evident from what the Court said at pp. 700-01:

However, because of the view I have taken, as indicated below, of the executive authority of the Government of Canada to enforce the statutes of Parliament, it becomes unnecessary to resolve finally this interpretive question but I do not rest this decision on the narrow ground of executive authority of the Government of Canada to enforce the statutes of Parliament, but also place my conclusion on the basis that s. 2(2)(6), properly interpreted, does not exclude the Attorney-General of Canada from the definition of Attorney-General in s. 2 of the Criminal Code. In the result, therefore, s. 2(2) in my view qualifies the Attorney-General of Canada to participate in these proceedings quite apart from any executive status that officer may have so to do.

In any case I do not read s. 2(2), in the event that it were to be construed as excluding the Attorney-General of Canada from these proceedings, as evincing parliamentary intent to deny the right or duty of the Government of Canada to exercise the executive authority which follows the legislative authority to enact criminal statutes including the Criminal Code under s. 91(27) of the British North America Act, 1867. I have come to this conclusion because of the clear intention revealed in the plain language employed by the Legislature to qualify the status of the Attorney-General of Canada in proceedings with reference to statutes of Canada other than the Criminal Code in which the provisions of the Code are imported by way of the Interpretation Act provision quoted above. This object, in my view, has been accomplished without in any way creating an inference (because it is clearly not expressed) that in respect of the Criminal Code the Attorney-General of

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Canada has no status in the criminal Courts in the

Provinces.

There was an added reference in Pelletier to federal power in relation to the peace, order and good government of Canada but, obviously, it could not stand alone in this case and I do not regard the reference as importing that consideration to support the federal prosecutorial power.

For convenience, I prefer to deal with Pontbriand before considering Hauser. Although the latter was decided by the Alberta Court of Appeal before Pontbriand was decided, it was not heard by this Court until after Pontbriand. The same issue was considered in Pontbriand as in Pelletier, namely, offences of conspiracy to violate the Narcotic Control Act. The prosecutorial authority of the federal Attorney General was challenged not only on the statutory ground that his jurisdiction was not encompassed by the charges, but also on constitutional grounds challenging the conferring of prosecutorial power on the federal Attorney General with respect to Criminal Code offences which were regarded by Hugessen A.C.J., the presiding Judge in Pontbriand, as encompassed thereunder through the Narcotic Control Act.

Hugessen A.C.J. rejected the decision in Pelletier and endorsed the majority opinion of the Alberta Court of Appeal in Hauser. The latter was, of course, later reviewed in this Court and will be canvassed below. There are two or three observations in Pontbriand with which I cannot agree. The first has to do with its considerable reliance on s. 135 of the British North America Act, as it then was. I have already dealt with this provision which was, as I said, specially tailored to the pre-Confederation Province of Canada, designed to create a bridge to the post-Confederation provinces of Ontario and Quebec. Section 135 cannot, in my view, be considered as overriding the governing provisions of s. 129. To read it in the way suggested would put the two provincial attorneys general in a position of ascendancy over the attorneys general of the other

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provinces. Its limited application does not support any reliance which Hugessen A.C.J. seemed to find in it.

The second point I take against Pontbriand is its view that the central conclusion in Pelletier was obiter and, indeed, relied on the federal peace, order and good government clause. Of course, the Court in Pontbriand was not bound by Pelletier, but it deserved more than a mere relegation of the Ontario Court of Appeal to an irrelevant obiter.

A greater objection to Pontbriand is the repeated intrusion of the word "criminal" in s. 92(14), as if the administration of justice in the province was to be read as administration of criminal justice. Section 92(14) does not disclose any such limitation and any authority of the kind which it may confer cannot be read as excluding paramount federal authority under s. 91(27). Moreover, I am bound to note that Pontbriand has exaggerated the effect of Di brio v. Warden of the Montreal Jail, 1976 CanLII 1 (SCC), [1978] 1 S.C.R. 152. The majority judgment sustaining the exercise of provincial authority to investigate organized crime made it clear that there was no attempt at particular accusations of crime, no attempt to create crimes or to alter criminal procedure. There was merely authority to investigate and report and, even so, subject to compliance with federal procedural standards, as, for example, to give protection against self-crimination. The present case rests on a different base, involving not the scope of provincial investigatory authority, but rather the scope of actual prosecutorial authority.

Coming now to the Hauser case in the Alberta Court of Appeal, it exhibited a clear difference of opinions between the majority and the minority of

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a five-judge Court. The case arose out of a charge of possession for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1. An indictment having been preferred on behalf of the Attorney General of Canada, a motion to quash was immediately brought on the ground that the Attorney General of Canada was not entitled to pursue the prosecution, not being so validly authorized under s. 2 of the Criminal Code. The motion was quashed at first instance, but on appeal, three of the members of the Court of Appeal, McGillivray C.J.A., Lieberman and Morrow B.A. granted prohibition. McDermid and Haddad D.A. dissented.

The majority took the view that the violation of the Narcotic Control Act was criminal law in its strict sense and hence that the federal Attorney General was excluded from any role in prosecution, even under the definition of Attorney General fixed by s. 2 of the Code. This must be taken to mean that when the offence involves a violation or conspiracy to violate any Act of the Parliament of Canada other than the Criminal Code, the federal Attorney General is excluded because, literally, the violation is a criminal law violation and, constitutionally, the authority to prosecute falls within s. 92(14) and not under s. 91(27).

The dissenting judges held that the indictment was properly preferred because the provincial Attorney General evinced no intention to prosecute for a narcotic control offence. They took the position that it was open to the Parliament of Canada to authorize indictments to be preferred by the federal Attorney General in respect of an offence under a federal Act other than the Criminal Code and that although the provincial Attorney General is not expressly excluded from his role in a case like the present, the question of conflict has generally been resolved by the provincial Attorney General not taking any objection to the pursuit of the matter by the federal Attorney General.

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I have dealt with the position of the Alberta Court of Appeal rather briefly, having in mind the subsequent overlay of the issue by this Court in Hauser. What has dismayed me in both the majority and minority reasons is the rather "heavy going" that is exhibited in order to preserve provincial prosecutorial authority in respect of the federal criminal law. The matter seems to have "boiled up" rather late in our constitutional jurisprudence, since prior to 1968-69 what had evolved as a matter of practical accommodation in the post-Confederation period was preserved under the new Criminal Code in a statutory definition, but there was no suggestion at the time or even later that a constitutional limitation would be imposed upon the Parliament of Canada when it sought to administer its own criminal law.

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. 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.

What then does the Hauser case in this Court say about the matter? Although McGillivray C.J.A., Lieberman J.A. concurring, left open the possibility of prosecutorial authority in the federal Attorney General if the peace, order and good government power called for particular application, Pigeon J., speaking for the majority of the Court (Martland, Ritchie and Beetz JJ.) held that the Narcotic Control Act was properly classifiable under the federal general residual power, dealing as it did with a new problem which did not exist at Confederation. Accordingly, he did not have to go beyond recognition of the authority of the federal

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Attorney General to prosecute for an offence which did not depend upon s. 91(27). Pigeon J. made it clear that no opinion was being expressed of any federal prosecutorial competence beyond that point. In the result, the appeal was allowed and Spence J. joined in that result but on a different plane than that of the majority, exhibiting in this respect a difference of opinion from Dickson J., with whom Pratte J. concurred.

In referring to the definition of "Attorney General" in s. 2 of the Code, Pigeon J. proceeded on what was essentially a constructional application, having regard to the fact that the definition itself, so far as it embraced the federal Attorney General, limited its prosecutorial authority to offences or conspiracy to commit such offences arising under statutes of Canada other than the Criminal Code. It might have been open to the Courts to read any non-Criminal Code offences as having an independent vitality, even though they introduce criminal law conceptions. That, however, has not been the approach, and hence where the criminal law is engaged even though arising otherwise than under the Code, it has been considered that this brings in s. 91(27) and ensuing prosecutorial consequences. That is certainly the view taken by respondents in the present appeal, as I have noted earlier in these reasons.

Spence J. took a strict view of the two questions that were posed by the Court. These questions were as follows:

Is it within the competence of the Parliament of Canada to enact legislation as in Section 2 of the Criminal Code to authorize the Attorney General of Canada or his Agent

(1) to prefer indictments for an offence under the Narcotic Control Act,

(2) to have the conduct of proceedings instituted at the instance of the Government of Canada in respect of a violation or conspiracy to violate any Act of the Parliament of Canada or regulations made thereunder other than the Criminal Code?

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As he noted, the first question concerned breaches of the Narcotic Control Act and, indeed, breaches of the Criminal Code were not the subject matter of the first question. There are passages in his reasons which it is important to reproduce, as follows:

I commence with what may well be regarded as a trite statement of a fundamental principle of Canadian constitutional law. Federal legislation powers under s. 91 of the British North America Act are conferred upon Parliament exclusively notwithstanding anything in that Act and particularly s. 92 thereof. The imposition of duties by Parliament and the conferring of powers of Parliament upon provincial courts and provincial officials comes from the exercise of federal legislative power and needs no enabling legislation or any type of permission from the provinces. I cite but one of many statements to that effect in this Court. Rinfret J. said in Attorney-General for Alberta and Winstanley v. Atlas Lumber Company Limited [1940 CanLII 33 (SCC), [1941] S.C.R. 87] at p. 100.

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

(The emphasis is my own.)

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

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

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used exclusively but the power may also be exercised by a federal official who may be the Attorney General of Canada or any investigating or prosecuting agency designated by Parliament.

Indeed it is difficult to understand how much of the federal legislative field could be dealt with efficiently by other methods. Much of the legislation in such fields is in essence regulatory and concerns such typically federal matters as trade and commerce, importation and exportation and other like matters. The administration of such fields require decisions of policy and certainly would include the establishment of a policy as to the means of and methods of enforcement. It would be a denial of the basic concept of federalism to permit the provincial authorities to have exclusive control of the enforcement of such legislation and the sole determination as to how and when the legislation should be enforced by institution of prosecution or against whom such prosecution should be instituted. If the legislative field is within the enumerated heads in s. 91, then the final decision as to administrative policy, investigation and prosecution must be in federal hands. Perhaps the Narcotic Control Act is a prime example of this principle. The Act contains much which is purely prohibitive and many provisions creating and providing for the prosecution of offences. But much of the statute also deals with regulation of the trade in drugs, with the importation of them, with the use of them and with the detailed delineation of the various classes thereof. Trade in the drugs both legal and illicit constantly crosses national and provincial boundaries. It is apparent, in my opinion, that the regulation of the subject of narcotic drugs, the policy controlling their distribution, the investigation of breaches of the statute or regulations and the institution of prosecution must be carried out by federal officials.

Turning to a consideration of s. 92(14), the learned judge said:

The contention otherwise advanced by counsel for the various provinces is based on the provisions of s. 92(14) of the British North America Act. Such provision reads:

The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal jurisdiction, and including Procedure in Civil Matters in those Courts.

It first must be noted that s. 91(27) grants to the federal Parliament jurisdiction in "the Procedure in Criminal Matters" and that power is, by virtue of the concluding sentence of s. 91, exclusive to Parliament. Secondly and most important, s. 92(14) is by its very words limited to

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administration of justice "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 mentioned and contrasted and it would have been inevitable that the draftsman would have inserted the word "civil" in the phrase "in the Province" if such a limitation were intended. But I am of the opinion that the words "in the Province" indicate that the legislator was concerned with the operation of the judicial machinery within the confines of the province and not with the vital matter of who should enforce and prosecute breaches of federal statutes.

Dealing with the provision of a federal statute permitting the Director of Public Prosecutions, a federal officer whose office had been created by the statute, to institute at the instance of the Attorney General of Canada criminal proceedings for violation of any law prohibiting unfair trade practices, Duff C.J. said in Reference re Dominion Trade and Industry Commission Act, [1936 CanLII 51 (SCC), [1936] S.C.R. 379,] at p. 383:

We do not think it can be said that the authority to provide for the prosecution of criminal offences falls "strictly" within the subject "Criminal law and criminal procedure,"-head 27 of the enumerated heads of section 91; but our view is that the authority to make such provision, and the authority to enact conditions in respect of the institution and the conduct of criminal proceedings is necessarily incidental to the powers given to the Parliament of Canada under head no. 27 (Proprietary Articles Trade Association v. Attorney-General for Canada 1931 CanLII 385 (UK JCPC), [1931] A.C. 310, at 326-7).

It is this view which I have attempted to express above. In the judgment of the Judicial Committee reported as Attorney General for Ontario v. Attorney General for Canada, [1937 CanLII 366 (UK JCPC), [1937] A.C. 405,] it would appear, as a result of submissions by counsel representing the Attorney General of Canada, Lord Atkin took a much narrower view of the provision ... .

He concluded by preferring the reasons above-quoted by Duff C.J. and in the result answered both questions in the affirmative. He added this observation:

The provision was found to be intra vires in both Courts. With respect I find my views more in accord with those of Duff C.J. As I have pointed out above if the amendment to the definition of "Attorney General" to include, at least, the Attorney General of Canada when dealing with offences other than those under the Criminal Code

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is properly incidental to valid legislation under s. 91, then it is paramount to anything in s. 92(14).

I come finally to a consideration of the extensive reasons in dissent delivered by Dickson J. There is a marked difference in the approach of Spence J. and Dickson J. to the federal prosecutorial power. Spence J. holds that the Parliament of Canada is competent to legislate respecting the prosecution of all federal law offences and he does not attempt to distinguish those which depend on the criminal law power from those which do not. The definition of Attorney General in s. 2(2) places prosecutorial power in the hands of the federal Attorney General when a non-Criminal Code offence is involved. The fact that a prosecution of such an offence obliges resort to the criminal law power does not make the offence a Criminal Code offence. It will have been separately defined. Take, as an example, a prosecution of an offence under the federal Bankruptcy Act. It has its own code and is not governed by the Criminal Code even though violations will import references to the criminal law. In the view of Dickson J., Parliament is competent to confer prosecutorial power on the federal Attorney General only if the offence does not depend on the criminal law power. Can there be offences under federal law, non-Code offences, which do not depend on or require some reference to the criminal law? Would it make a difference to the validity of s. 2(2) if the non-Code offence repeated in its terms the very provisions of the Code which are, in so many federal non-Code offences, referentially introduced? Indeed, even accepting the characterization of the Narcotic Control Act by Pigeon J., the penal measures imposed for violations of the Act do not really escape the grasp of the criminal law, though the Act be one for the peace, order and good government of Canada.

It is certainly open to the Parliament of Canada, in legislating in relation to s. 91(27), to take a

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disjunctive view of the very wide criminal law power which it possesses. Thus, it can view it in its character as establishing offences and also as empowering it to prescribe penalties for their breach. It is my view that it has drawn such a distinction in vesting prosecutorial authority in the federal Attorney General under s. 2(2) when it referred to non-Criminal Code offences, leaving the question of penal liability dependent on what is prescribed under such offences.

I turn now to say a word about the recent judgment of the Ontario Court of Appeal in Hoffman-LaRoche. Martin J.A., speaking for the Court in that case, found himself substantially in agreement with Pelletier and with Spence J. in Hauser, as well as with the views expressed by Linden J. at trial. I have referred earlier in these reasons to Linden J. and need not recanvass his reasons. There are a number of passages in the reasons of Martin J.A. which I fully endorse and they are as follows. Thus, he said (at p. 225):

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 suppressing in the national interest, conduct which is essentially trans-provincial 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 procedure which only Parliament can constitutionally provide.

And, again (at p. 228):

In my view, the special investigative powers which have since its enactment been an integral part of the Combines Investigation Act place beyond question the authority of federal officers to enforce its provisions. I am also of the view that the conferring of those investigative powers falls within criminal procedure under s. 91(27). As Mr. Robinette aptly put it, it would be startling if the Attorney General of Canada can have the conduct of prosecutions under the Narcotic Control Act because that Act is not criminal law and cannot have the conduct of prosecutions under the Combines Investigation Act because it is criminal law.

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Martin J.A. discussed Di Iorio at some length and pointed out the distinction which exists in the case before him. He said this (at pp. 228-29):

In Di Iorio v. Montreal Jail Warden, 1976 CanLII 1 (SCC), [1978] 1 S.C.R. 152, ... the Supreme Court of Canada accepted that there is a degree of overlapping between the powers assigned to Parliament under s. 91(27) and those assigned to the provinces under s. 92(14) and that a matter which for some purpose may fall within the scope of the federal power over criminal law and procedure may also fall within the legitimate concern of the provinces as pertaining to the administration of justice (per Dickson J. at p. 207).

Notwithstanding the overlapping between s. 91(27) and s. 92(14), manifestly it would not be within provincial competence to enact legislation enabling a police officer to summon a suspect before an official and submit the suspect to compulsory examination under oath with respect to his involvement in a crime. Even though such legislation might be described as legislation in relation to the investigation of offences and thus appear to fall within the category of the administration of justice, such legislation in pith and substance would be legislation in relation to criminal procedure and thus within the exclusive competence of Parliament.

Finally, returning to the Combines Investigation Act, he observed (at pp. 230-31):

The provisions of the Combines Investigation Act empowering federal officials charged with the enforcement of the Act to compel any person resident or present in Canada to give evidence under oath has, as I have previously mentioned, been a characteristic feature of the Act since its enactment. Two things are obvious: the first is that Parliament evidently considered that ordinary police investigation by the province would not be effective to investigate the kinds of conduct at which the Combines Investigation Act strikes, and which seldom respects provincial boundaries. The second is that it would not be competent for a provincial legislature to vest these powers in provincial or federal officials for the purpose of investigating offences under the Act.

The subject matter of the investigation provided for in the Act and with respect to which witnesses may be compelled to give evidence, is not general conditions in a province with respect to the existence of combines or

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predatory pricing practices or the conditions favourable to their formation or operation. Rather, the investigation contemplated is the investigation of specific transactions in relation to specified offences under the Act, including offences under s. 34, to determine whether a prosecution is warranted. Frequently, the persons required to submit to compulsory examination under oath are suspected of having committed certain offences under the Act or are the officers of corporations suspected of having committed such offences and who as a result are potentially defendants in a subsequent prosecution. The investigative provisions of the Combines Investigation Act have never been successfully challenged, and indeed neither counsel for the appellant nor counsel for the Attorney General of Ontario before us challenged their validity. In Reference re Validity of Combines Investigation Act, supra, Duff J., after pointing out that the Act, as its name imported, provided for the investigation of matter touching the existence of a combine or a pending combine, said at p. 418:

"The other point of view is that of responsibility of the Dominion with regard to the Criminal Law. The authority in relation to the Criminal Law and Criminal Procedure given by s. 91(27) would appear to confer upon the Dominion, not as an incidental power merely, but as an essential part of it, the power to provide for investigation into crime, actual and potential." (The italics are mine.)

On appeal from the judgment of the Supreme Court of Canada the Judicial Committee of the Privy Council agreed with the opinion of the Supreme Court of Canada that no part of the Combines Investigation Act was ultra vires.

He concluded as follows (at p. 233):

The validity of the provisions of the Combines Investigation Act vesting investigative powers in federal officers is, in my view, beyond question. The discharge of the investigative function by federal officials, and the vesting of the prosecutorial function exclusively in the Attorney General of the province would result in the very disunity which Dickson J. found unacceptable. Since the investigative function is validly vested in federal officers, the authority of Parliament to empower the Attorney General of Canada to initiate and conduct prosecutions under the Act is necessarily incidential or ancillary to the scheme of the legislation, or to use the language of Laskin J.A. (as he then was) in Papp v. Papp, 1969 CanLII 219 (ON CA), [1970]1 O.R. 331 at 335-36, 8 D.L.R. (3d) 389 (C.A.), "there is a rational, functional connection" between the investigative procedures provided for in the

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Act and the vesting of prosecutorial power in the Attorney General of Canada under s. 15(2) of the Act.

In my view, the vesting of prosecutorial powers in the Attorney General of Canada in respect of violations of the Combines Investigation Act does not offend any constitutional principle or any understanding that may have existed at the time of Confederation with respect to the enforcement of the criminal law.

Accordingly, I agree with the trial judge that even if the constitutional validity of the Combines Investigation Act depends on head 27 of s. 91 of the B.N.A. Act, it is within the legislative competence of Parliament as in s. 2 "Attorney General" (b) of the Code and s. 15(2) of the Combines Investigation Act to authorize the Attorney General of Canada to prefer indictments and have the conduct of prosecutions in respect of violations of that Act.

I should add that I find it unnecessary in this appeal to consider Martin J.A.'s observations on the peace, order and good government power dealt with by Pigeon J. in Hauser nor to expand on the trade and commerce power.

IX

IX

Apart from the reasons in this Court which I have produced, 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 Hoffman-LaRoche case. The reasons and decisions to which I refer lead to the conclusion that this appeal should be allowed, the judgment of the Alberta Court of Appeal set aside and the questions posed for decisions should be answered in the affirmative. I would add that the reasons of Mr. Justice Martin in Hoffman-Laroche are in my view unassailable and, in them-selves, would justify responding affirmatively to the federal claim of prosecutorial authority.

There will be no order as to costs either to or against the parties or to or against the interveners.

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The following are the reasons delivered by

Reasons of Dickson J.

DICKSON J.—Is the Attorney General of Canada constitutionally competent to prefer indictments and conduct proceedings in respect of alleged violations of the Combines Investigation Act, R.S.C. 1970, c. C-23, as amended? That is the narrow question raised by this appeal. Behind it, however, much broader questions are put in issue, touching on the fundamental principles that govern the division of powers between the federal and provincial authorities in the areas of criminal justice and economic regulation.

Background

Background

On November 5, 1979, a federal Combines Investigation Officer swore an information charging the respondents, and numerous other corporations and individuals, with having unlawfully conspired to prevent or lessen unduly competition in the interprovincial transportation of merchandise in shipments weighing up to ten thousand pounds from points in British Columbia, Saskatchewan and Manitoba, contrary to s. 32(1)(c), rep. and sub. 1974-75-76 (Can.), c. 76, s. 14(1) of the Combines Investigation Act. On September 9, 1980 applications were made to the Court of Queen's Bench of Alberta for orders prohibiting the provincial court from continuing any proceedings with respect to this information, so long as the prosecution was conducted by or on behalf of the Attorney General of Canada. The applicants contended that s. 32(1)(c) of the Combines Investigation Act was criminal law and that pursuant to s. 92(14) of the British North America Act, 1867 (now the Constitution Act, 1867) only a provincial Attorney General could conduct prosecutions. If this submission is correct, then it must follow that s. 15(2) of the Combines Investigation Act and s. 2 of the Criminal Code [hereinafter referred to as s. 2(2)] which authorize the federal Attorney General to prefer indictments and conduct proceedings under the Combines Investigation Act are ultra

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vires the Parliament of Canada.

A similar issue arose in R. v. Hauser, 1979 CanLII 13 (SCC), [1979] 1 S.C.R. 984, although that case involved the Narcotic Control Act, R.S.C. 1970, c. N-1, rather than the Combines Investigation Act. A majority of this Court held that the Attorney General of Canada had the constitutional authority to prefer indictments and conduct proceedings relating to charges under the Narcotic Control Act. Mr. Justice Pratte and I dissented. Our dissent was based on the proposition that although jurisdiction to legislate under a particular head of power normally includes authority to enforce such legislation, Parliament's s. 91(27) criminal law power does not include authority to conduct and prosecute criminal proceedings because s. 92(14) gives the provinces jurisdiction to administer the criminal justice system, including authority to prefer indictments and supervise the conduct of criminal proceedings. Since Mr. Justice Pratte and I thought the Narcotic Control Act was in pith and substance criminal law, we concluded that only the Attorney General of the province could prefer the indictment and prosecute the charges against Mr. Hauser. A majority of the Court found the Narcotic Control Act was not criminal law, but was constitutionally valid under the peace, order and good government power, and the Attorney General of Canada therefore had jurisdiction to conduct the prosecution. Mr. Justice Spence wrote a separate opinion, concurring in the majority result; it was his view that federal officials had authority to administer and enforce federal statutes no matter which head of federal power provided constitutional support for the particular legislation.

Hauser did not decide, then, which Attorney General could prosecute when the Criminal Code

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or other legislation dependent on Parliament's criminal law power was involved. What it did decide, in effect, was that where the legislation being enforced depended on some other federal head of power, the federal Attorney General could prefer indictments and conduct proceedings. At p. 996, Pigeon J., speaking for the majority of the Court stated:

Whatever may be said as to the necessity of limiting the extent of the federal power over criminal procedure so as to preserve provincial jurisdiction over the administration of justice in criminal matters, it appears to me that one must accept, at least, what is conceded by three provinces: unrestricted federal legislative authority over prosecutions for violations or conspiracies for violations of federal enactments which do not depend for their constitutional validity on head 27 of s. 91 (Criminal Law). It appears to me that these provinces justly disclaim any constitutional power to subject the enforcement of federal statutes to their executive authority except in what may properly be considered as "criminal law".

With regard, then, to the issue now before us, Hauser introduces an important constitutional distinction at p. 992:

From a constitutional point of view, the distinction properly should be between enactments founded on the criminal law power and other enactments, as was pointed out on behalf of the three provinces which accept that, in legislating under any other head of power, the federal Parliament can completely provide for prosecutions by federal officials, although they deny such power for the enforcement of criminal law strictly so called.

This is a crucial consideration in the present case. Section 15(2) of the Combines Investigation Act reads:

15....

(2) The Attorney General of Canada may institute and conduct any prosecution or other proceedings under this Act, and for such purposes he may exercise all the powers and functions conferred by the Criminal Code on the attorney general of a province.

Section 2(2) of the Criminal Code reads:

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"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

(b) proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a violation of or conspiracy to violate any Act of the Parliament of Canada or a regulation made thereunder other than this Act,

means the Attorney General of Canada and, except for the purposes of subsections 505(4) and 507(3), includes the lawful deputy of the said Attorney General, Solicitor General and Attorney General of Canada;

Both these sections purport to authorize the Attorney General of Canada to conduct prosecutions under the Combines Investigation Act. If the constitutional validity of s. 32(1)(c) of the Combines Investigation Act depends on a federal head of power other than s. 91(27), then following the majority judgment in Hauser, then with regard to this section there can be no doubt that s. 15(2) of the Combines Investigation Act and s. 2(2) of the Criminal Code are intra vires and the Attorney General of Canada is competent to prefer indictments and to conduct proceedings in respect of alleged violations of the Act. If, on the other hand, the validity of s. 32(1)(c) depends solely on the federal criminal law power, then this Court will have to deal with the issue of the competing federal and provincial claims for constitutional authority to prosecute criminal cases which the majority decision in Hauser left moot.

Based on this understanding of the implications of the Hauser case, Medhurst J. dismissed the applications for prohibition, 1980 CanLII 1164 (AB QB), [1981] 2 W.W.R. 701; (1980), 119 D.L.R. 547. It was his opinion that s. 32(1)(c) of the Combines Investigation Act could be supported as valid federal legislation under the authority given by s. 91(2) of the then British North America Act to regulate trade and commerce and that accordingly the power of the Attorney General of Canada to prosecute for a

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violation of s. 32(1) of the Combines Investigation Act was valid.

On appeal, the Alberta Court of Appeal reversed and granted the prohibition order. The Court of Appeal, speaking through Mr. Justice Prowse, reviewed the authorities and concluded that: "generally the Combines Investigation Act and in particular the offence alleged in the information is within the competence of Parliament under s. 91(27) (criminal law) of the B.N.A. Act, 1867", and that "the Combines Investigation Act and in particular s. 32(1) (c) thereof, does not depend in whole or in part for its validity on s. 91(2) of the B.N.A. Act 1867". Since a majority of the Alberta Court of Appeal had decided in the Hauser case that it was not within the competence of the Parliament of Canada to authorize the federal Attorney General to prosecute criminal proceedings, Prowse J.A. held he was bound to allow the appeal and make the order sought.

It is from this decision that the Attorney General of Canada appeals to this Court. The Attorneys General of Alberta, Quebec, Ontario, Saskatchewan and British Columbia intervene by leave of this Court in opposition to the Attorney General of Canada. The focus of the arguments before this Court has been on the constitutional questions raised in the appeal, which by order of the Chief Justice, are formulated as follows:

1. Does the constitutional validity of Section 32(1)(c) of the Combines Investigation Act, S.C. 1970, c. C-23, depend upon Section 91(27) of the British North America Act?

2. If so, is it within the competence of the Parliament of Canada to enact legislation as in Section 2 of the Criminal Code, and Section 15(2) of the Combines Investigation Act, to authorize the Attorney General of Canada or his agents to prefer indictments and conduct proceedings in respect of alleged violations of the afore-mentioned provision?

The appellant submits that s. 32(1)(c) of the Combines Investigation Act is not constitutionally

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dependent only on the s. 91(27) criminal law power, but is also supportable under head 91(2), trade and commerce, and under the peace, order and good government power. He further submits that even if s. 32(1)(c) were to depend solely on the s. 91(27) criminal law power, s. 2(2) of the Criminal Code and s. 15(2) of the Combines Investigation Act are themselves valid exercises of the s. 91(27) power and hence intra vires. The respondents and intervenant provinces contend that s. 32(1)(c) is valid only under the federal criminal law power, and that by reason of the provinces' exclusive jurisdiction over the administration of criminal justice, the federal Parliament cannot make laws with regard to the prosecution of such offences and hence s. 15(2) of the Combines Investigation Act and the relevant parts of s. 2(2) of the Criminal Code are ultra vires.

The Combines Investgation Act as Criminal Law

The Combines Investgation Act as Criminal Law

There is a long history of Canadian anti-combines legislation being sustained as criminal law. The original statute, passed in 1889, was entitled An Act for the Prevention and Suppression of Combinations formed in restraint of Trade, 1889 (Can.), c. 41. The statute was motivated by concern over the emergence in Canada of smaller versions of the huge trusts in the United States, through which a few personalities could control enormous financial empires. The combines problem was seen as one with strong moral overtones and criminal sanctions were selected as the appropriate means for its control: see McDonald, Criminality and the Canadian Anti-Combines Laws (1965), 4 Alta. L.R. 67, at pp. 69-71. When the first Canadian Criminal Code was enacted in 1892, the prohibitions in the 1889 statute were included therein as 1892 (Can.), c. 29, s. 520. In 1910 Parliament enacted The Combines Investigation Act, 1910 (Can.), c. 9, which provided investigative machinery and empowered a board

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appointed by the Minister to levy fines against individuals and companies whom the Board found guilty of combines offences, and who "continue[d] so to offend" (s. 23). None of these early statutes was challenged in the courts; see Hogg, Constitutional Law of Canada, p. 282, and Hogg and Grover, The Constitutionality of the Competition Bill (1975-76), 1 Can. Bus. L. J. 197, at p. 202.

In 1919 a more ambitious scheme was enacted by The Combines and Fair Prices Act, 1919, 1919 (Can.), c. 45, and The Board of Commerce Act, 1919 (Can.), c. 37. These statutes prohibited combinations which in the opinion of the Board of Commerce were detrimental to the public interest, and also included provisions directed at hoarding and unduly profiting from the necessities of life, which were defined as food, clothing and fuel. The Board was empowered to determine when undue profits were being made, and could issue cease and desist orders which in effect fixed maximum prices. In Re Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919, 1921 CanLII 399 (UK JCPC), [1922] 1 A.C. 191, these statutes were declared unconstitutional. The Privy Council, speaking through Viscount Haldane, rejected the peace, order and good government power on the basis that it was only available to meet emergency situations; the trade and commerce power because it had no independent content and could only be invoked as ancilliary to other federal powers; and the criminal law power because it was available only where "the subject matter is one which by its very nature belongs to the domain of criminal jurisprudence" (p. 198-99).

The year after the Board of Commerce decision Parliament enacted The Combines Investigation Act, 1923 (Can.), c. 9, which repealed the two 1919 statutes, and replaced them with a more modest scheme that prohibited combines in restraint of trade, but went no further. The new Act gave investigatory powers to a registrar and

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commissioners, but did not confer authority to issue cease and desist orders. In Proprietary Articles Trade Association v. Attorney-General for Canada (the P.A.T.A. case), 1931 CanLII 385 (UK JCPC), [1931] A.C. 310, the Privy Council, now speaking through Lord Atkin, repudiated Viscount Haldane's "domain of criminal jurisprudence" theory, saying that federal criminal law jurisdiction was "not confined to what was criminal by the law of England or of any Province in 1867", and that "the power must extend to legislation to make new crimes" (p. 324). Lord Atkin also said that their Lordships wished to "dissociate themselves" from the Board of Commerce proposition that the trade and commerce power "could be invoked only in furtherance of a general power which Parliament possessed independently of it" (p. 326). Having found the new Combines Investigation Act valid under the criminal law power, Lord Atkin did not find it necessary to consider whether it could also be supported under the trade and commerce jurisdiction. He did say, however, that their Lordships wished to "guard themselves from being supposed to lay down that the present legislation could not be supported on that ground" (p. 326).

In 1935 The Dominion Trade and Industry Commission Act, 1935 (Can.), c. 59, was enacted. This Act established a new Commission which was "charged with the administration of the Combines Investigation Act" (s. 13). The Commission was also given "responsibility to recommend the prosecution of offences against acts of the Parliament of Canada ... relating to commodity standards" (s. 15(1)). The Commission received investigatory powers relating to both combines and commodity standards (ss. 15(2), 20). Section 14 gave the Governor in Council, on the advice of the Commission, power to give advance clearance to agreements among businessmen regulating prices or production in any particular industry when the arrangement was not "detrimental" to the public interest.

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In Reference re Dominion Trade and Industry Commission Act, 1936 CanLII 51 (SCC), [1936] S.C.R. 379, this Court upheld the Commission's investigatory powers relating to commodity standards under both the criminal law and trade and commerce powers (p. 382), and its investigatory powers in the combines field as criminal law (p. 383). The Court held, however, that s. 14, which conferred the advance clearance powers, was ultra vires. Duff C.J. said, for the Court, that an advance clearance power was not "necessarily incidental" to the criminal law aspect of the statute, and they could not be upheld under the trade and commerce head because it was not "in substance" confined to interprovincial trade (p. 381-82). In Attorney-General for Ontario v. Attorney-General for Canada (Canada Standard Trade Mark Case), 1937 CanLII 366 (UK JCPC), [1937] A.C. 405, the Privy Council upheld the judgment of this Court, except on a point not relevant here. The Judicial Committee expressly agreed with the reasoning of Duff C.J., (at p. 416) saying the investigatory powers sections were "legitimate provisions for ascertaining whether criminal acts have been committed". The decision of this Court with respect to the advance clearance powers was not appealed to the Privy Council.

Parliament also amended the Criminal Code in 1935 by making it an offence to charge one commercial purchaser higher prices than another, or to sell goods at unreasonably low prices for the purpose of destroying competition: 1935 (Can.), c. 56, adding s. 498A to the Criminal Code, 1927. This Court and the Privy Council both upheld the new section of the Code as criminal law: Reference re Section 498A of the Criminal Code, 1936 CanLII 45 (SCC), [1936] S.C.R. 363; Attorney-General for British Columbia v. Attorney-General for Canada, 1937 CanLII 365 (UK JCPC), [1937] A.C. 368.

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In 1951 Parliament prohibited resale price maintenance and, again, this Court upheld the new provision as criminal law: R. v. Campbell (1965), 1966 CanLII 519 (SCC), 58 D.L.R. (2d) 673, affirming the judgment and reasons of the Ontario Court of Appeal reported at (1964), 1964 CanLII 612 (ON CA), 46 D.L.R. (2d) 83. In 1952 Parliament added new sections to the Combines Investigation Act permitting courts hearing combines charges to make orders prohibiting the continuation of combines, or orders dissolving mergers, trusts or monopolies, such orders to be in addition to any other penalty the court might impose upon conviction: 1952 (Can.), c. 39, s. 3. These sections were upheld by this Court under the criminal law power in Goodyear Tire and Rubber Co. v. The Queen, 1956 CanLII 4 (SCC), [1956] S.C.R. 303.

The foregoing survey shows that both this Court and the Privy Council have consistently sustained anti-combines legislation as criminal law. The same may be said about the specific section in issue in the first constitutional question. Section 32(1) reads:

32. (1) Every one who conspires, combines, agrees or arranges with another person

(a) to limit unduly the facilities for transporting, producing, manufacturing, supplying, storing or dealing in any product,

(b) to prevent, limit or lessen, unduly, the manufacture or production of a product, or to enhance unreasonably the price thereof,

(c) to prevent, or lessen, unduly, competition in the production, manufacture, purchase, barter, sale, storage, rental, transportation or supply of a product, or in the price of insurance upon persons or property, or

(d) to otherwise restrain or injure competition unduly,

is guilty of an indictable offence and is liable to imprisonment for five years or a fine of one million dollars or to both.

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This section is the successor of s. 498 of the Criminal Code, 1927, which was sustained as criminal law in the P.A.T.A. case. The most recent affirmation is in Jabour v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307, at p. 358:

Section 32 is criminal legislation, whatever basis other parts of the CIA may have constitutionally.

Indeed all parties in this appeal agree that s. 32(1)(c) is intra vires as criminal law and I see no reason to disagree.

That, however, does not end the matter. There is no reason why an enactment which is valid as coming within one of the federal heads of power in s. 91 of the Constitution Act, 1867 cannot also be valid by virtue of one or mots additional federal heads of power. In most constitutional cases involving federal legislation, the issue is whether the impugned enactment is properly within federal or provincial law-making authority. Once federal competence has been established under one s. 91 power, it is little to the point whether the enactment might also have been supported under another federal head. In most cases to speculate about such further possible justifications would be to ingots the venerable principle of constitutional interpretation contained in Sir Montague Smith's admonition in Citizens Insurance Company of Canada v. Parsons (1881), 7 App. Cas. 96, at p. 109, to judges attempting to construe the limits of ss. 91 and 92:

In performing this difficult duty, it will be a wise course for those on whom it is thrown, to decide each case which arises as best they can, without entering more largely upon an interpretation of the statute than is necessary for the decision of the particular question in hand.

It was this admonition, whose object Lord Atkin described at p. 317 of the P.A.T.A. case as being "as far as possible to prevent too rigid declarations of the Court's from interfering with such elasticity as is given in the written constitution", which

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restrained the Privy Council in that case from proceeding to consider whether the new Combines Investigation Act might also be supported under the trade and commerce jurisdiction, once it had been found to be valid criminal law.

This same restraint is found in the judgment of Estey J. in the Jabour case. Having reiterated the finding that s. 32 of the Combines Investigation Act is valid criminal law, Estey J. declined, at p. 362, to consider the appellant's submission that it could also be validated under the s. 91(2) trade and commerce power on the ground that, given the facts of the case, "The interpretation of s. 32 will of course produce the same answer under question 1 whatever its constitutional base may be."

In view of this established policy of minimizing unnecessary constitutional pronouncements I attach little significance to the fact that in most cases courts have simply endorsed the P.A. T.A. decision that the Combines Investigation Act could be justified as criminal law. In the present case, however, in contrast to the situation in Jabour, I am of the opinion that the interpretation of s. 32 will produce a different answer under question 1 depending on what its constitutional base may be. Accordingly I would like now to consider the other possible sources of validity suggested by the Attorney General of Canada.

The Trade and Commerce Power

The Trade and Commerce Power

Any consideration of the federal Parliament's s. 91(2) power to regulate trade and commerce must begin with the Privy Council decision in the Parsons case. In that case the appellant Insurance Company challenged the constitutionality of an Ontario statute prescribing terms for fire insurance policies on the basis that only the federal

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Parliament could regulate "trade and commerce". While recognizing that a literal reading of the words "regulation of trade and commerce" could lead to such an expansive view of federal power, the Privy Council found such a holding would conflict crucially with the legislative scheme apparent in ss. 91 and 92 of the British North America Act:

The words "regulation of trade and commerce," in their unlimited sense are sufficiently wide, if uncontrolled by the context and other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade with foreign governments, requiring the sanction of parliament, down to minute rules for regulating particular trades. But a consideration of the Act shews [sic] that the words were not used in this unlimited sense. In the first place the collocation of No. 2 with classes of subjects of national and general concern affords an indication that regulations relating to general trade and commerce were in the mind of the legislature, when conferring this power on the dominion parliament. If the words had been intended to have the full scope of which in their literal meaning they are susceptible, the specific mention of several of the other classes of subjects enumerated in sect. 91 would have been unnecessary; as, 15, banking; 17, weights and measures; 18, bills of exchange and promissory notes; 19, interest; and even 21, bankruptcy and insolvency.

In view of this textual evidence of legislative intent, the Privy Council came to a pragmatic conclusion:

Construing therefore the words "regulation of trade and commerce" by the various aids to their interpretation above suggested, they would include political arrangements in regard to trade requiring the sanction of parliament, regulation of trade in matters of inter-provincial concern, and it may be that they would include general regulation of trade affecting the whole dominion. Their Lordships abstain on the present occasion from any attempt to define the limits of the authority of the dominion parliament in this direction. It is enough for the decision of the present case to say that, in their view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance

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in a single province, and therefore that its legislative authority does not in the present case conflict or compete with the power over property and civil rights assigned to the legislature of Ontario by No. 13 of sect. 92.

Since this conclusion was sufficient to dispose of the particular question in issue, their Lordships refused to extend their consideration of ss. 91(2) and 92(13) any further:

Having taken this view of the present case, it becomes unnecessary to consider the question how far the general power to make regulations of trade and commerce, when competently exercised by the dominion parliament, might legally modify or affect property and civil rights in the provinces, or the legislative power of the provincial legislatures in relation to those subjects ...

These passages from Parsons establish three important propositions with regard to the federal trade and commerce power: (i) it does not correspond to the literal meaning of the words "regulation of trade and commerce"; (ii) it includes not only arrangements with regard to international and interprovincial trade but "it may be that .. . [it] would include general regulation of trade affecting the whole dominion"; (iii) it does not extend to regulating the contracts of a particular business or trade. Subsequent jurisprudence on the meaning and extent of s. 91(2) is to a large extent an expansion and an explication of these three interrelated propositions.

i) Restricting the Meaning of "The Regulation of Trade and Commerce"

i) Restricting the Meaning of "The Regulation of Trade and Commerce"

In Lawson v. Interior Tree Fruit and Vegetable Committee, 1930 CanLII 91 (SCC), [1931] S.C.R. 357, at p. 366 Duff J. set out the practical as well as the textual reasons for a restrictive reading of s. 92(2):

The scope which might be ascribed to head 2, s. 91 (if the natural meaning of the words, divorced from their context, were alone to be considered), has necessarily been limited, in order to preserve from serous curtailment, if not from virtual extinction, the degree of autonomy which, as appears from the scheme of the Act as a whole, the provinces were intended to possess.

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This consideration had been articulated by the Privy Council in Bank of Toronto v. Lambe (1887), 12 App. Cas. 575, at p. 586 and in City of Montreal v. Montreal Street Railway Co. (1912), 1912 CanLII 352 (UK JCPC), 1 D.L.R. 681, at p. 687, and would be repeated by Duff C.J. in his famous explication of the federal trade and commerce power in Reference re Natural Products Marketing Act, 1936 CanLII 21 (SCC), [1936] S.C.R. 398, at pp. 409-10, [1936] 3 D.L.R. 622, at p. 629, and in Reference re Alberta Statutes, 1938 CanLII 1 (SCC), [1938] S.C.R. 100, at p. 121. In this last judgment Duff C.J. makes clear the functional basis for restricting the meaning of s. 91(2) as he rejects the submission that previous Supreme Court and Privy Council decisions limiting the scope of s. 91(2), establish that Alberta's Social Credit Legislation does not trench on the federal Parliament's trade and commerce power:

Paraphrases of the words of head no. 2 of section 91 have been found useful in particular cases for assigning to that head a function in the scheme of these sections which would not result in defeating one main purpose of the B.N.A. Act by substantially impairing the autonomy of the provinces in respect of matters of purely provincial concern. But such paraphrases were not framed in light of the possibility of such legislation as that now before us. Such legislation was not in the minds of the great judges who adopted them. And since in none of the cases was it strictly necessary to draw an abstract line fixing the limits of the category in question, these formulae ought not to be treated as substitutes for the words of section 91, when, as now, a totally new type of legislation has to be considered; in relation to which it would be extravagant to suggest that any question of impairment of such autonomy arises.

What this implies is that the limits of s. 91(2) are not fixed, and that questions of constitutional balance play a crucial role in determining its extent in any given case at any given time.

This is also the view of the history of the trade and commerce power articulated by Rand J. in Reference re Farm Products Marketing Act, 1957 CanLII 1 (SCC), [1957] S.C.R. 198, at p. 212.

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It is important to keep in mind, as already observed, that the broad language of head 2 of s. 91 has been curtailed not by any express language of the statute but as a necessary implication of the fundamental division of powers effected by it. The interpretation of this head has undergone a transformation. When it was first considered by this Court in Severn v. The Queen (1878), 1878 CanLII 29 (SCC), 2 S.C.R. 70, and The City of Fredericton v. The Queen (1880), 1880 CanLII 28 (SCC), 3 S.C.R. 505, the majority views did not envisage the limitation now established; that was introduced by the judgment in the Parsons case (supra). The nadir of its scope was reached in what seemed its restriction to a function ancillary to other Dominion powers; but that view has been irretrievably scotched.

Earlier in the same judgment, at p. 209, Rand J. refers to the existence of a provincial power to regulate trade, which he characterizes as a "subtraction from the scope of the language conferring on the Dominion by head 2 of s. 91 exclusive authority to make laws in relation to the regulation of trade and commerce". With respect, I agree. This competence is usually identified with s. 92(13) "Property and Civil Rights in the Province", but these words are no more fixed nor susceptible to literal interpretation than are those of s. 91(2). See John Deere Plow Co. v. Wharton, 1914 CanLII 603 (UK JCPC), [1915] A.C. 330, at p. 340. In deciding how much ought to be subtracted from the full literal meaning of s. 91(2) in order to preserve the proper constitutional balance between the federal government and the provinces, the courts have developed a number of indicia of the respective federal and provincial competences. But even with the help of these indicia and of the "paraphrases" of ss. 91(2) and 92(13) referred to by Duff C.J. in Reference re Alberta Statutes, supra, the difficult underlying task facing a court determining the constitutional status of federal economic regulation is, without passing on the substantive merits of the legislation, to assess whether and how far it encroaches on the degree of local autonomy contemplated by the constitution. It is not surprising that the tenor of what constitutes such an encroachment has varied over time.

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(ii) General Regulation of Trade Affecting the Whole Dominion

(ii) General Regulation of Trade Affecting the Whole Dominion

One possible indication of federal competence over economic regulation is its operation across and beyond provincial borders. In Parsons the Privy Council identified international and inter-provincial trade as coming within the ambit of s. 91(2) and much of the subsequent jurisprudence on the federal trade and commerce power has been devoted to a consideration of just how much or how little intraprovincial commerce could be validly swept into the flow of the interprovincial trade affected by a given enactment. In the present case, however, even on the most generous definition, s. 32(1)(c) of the Combines Investigation Act cannot be seen as a regulation of interprovincial trade and commerce. The appellant Attorney General of Canada concedes that if it is to be justified under s. 91(2), this enactment must fall within what has been called the "second branch" of the Parsons classification, namely the "general regulation of trade affecting the whole dominion".

Although in Parsons this second branch is presented as merely a possibility ("and it may be that they would include ... "), the existence of a "general trade and commerce" power seems to have been widely assumed in subsequent cases. In John Deere Plow Co. v. Wharton, supra, the Privy Council held that the limits of the powers of federally-incorporated companies was "a question of general interest throughout the Dominion" and hence under federal competence pursuant to s. 91(2). In Attorney-General for Ontario v. Attorney-General for Canada (Canada Standard Trade Mark Case), supra, at p. 417, the Privy Council held that the creation of a national trade mark was within "the class of subjects enumerated in s. 91(2)". Even in cases where the impugned legislation was held to fall outside of the ambit of s. 91(2), the existence of such a "general" power seems not to have been put in doubt. See Toronto Electric Commissioners v. Snider, 1925 CanLII 331 (UK JCPC), [1925] A.C. 396, [1925] 2 D.L.R. 5, at p. 13; Reference re

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Natural Products Marketing Act, supra, at p. 629. In more recent cases, the existence of a "general" trade and commerce power has been affirmed by the Chief Justice in MacDonald v. Vapor Canada Ltd., 1976 CanLII 181 (SCC), [1977] 2 S.C.R. 134, at p. 167, and by Estey J. in Labatt Breweries of Canada Ltd. v. Attorney General of Canada, 1979 CanLII 190 (SCC), [1980] 1 S.C.R. 914, at p. 936. Yet, despite all these affirmations, the Wharton and Canada Standard Trade Mark cases remain the only ones in which a final appellate court has actually applied the general trade and commerce power to validate federal legislation and the correctness of even these decisions has been widely doubted. See, Smith, The Commerce Power in Canada and the United States (1963), pp. 96-99. With these exceptions, the potential applicability of the general trade and commerce power has been considered and rejected in a string of final appellate court decisions beginning the year after Wharton's case with Attorney-General for Canada v. Attorney-General for Alberta (Insurance Reference), 1916 CanLII 424 (UK JCPC), [1916] 1 A.C. 588, through to and including both the Vapor Canada and Labatt cases.

One reason for this conspicuous lack of success is doubtless to be found in the test for the general trade and commerce power implicit in Wharton. If every economic issue that could be characterized as a "question of general interest throughout the Dominion" were to fall under federal competence by virtue of s. 91(2), then the extent of the power would hardly be narrower than it would on a literal reading of the words "regulation of trade and commerce" alone. There is hardly an economic issue which, if only by virtue of its recurrence in locations around the country, could not be characterized as a matter of general interest throughout the Dominion.

In the Labatt case, supra, at p. 940, Estey J. states that the criterion of constituting a question

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of general interest throughout the Dominion is still the correct test in determining whether the second branch of the trade and commerce power applies. I agree with this statement, just as I am of opinion that the long disuse of this second branch does not impugn its constitutional validity. But I am also of the view—as Estey J.'s treatment of the issue in Labatt confirms—that the same considerations which led Sir Montague Smith to limit the scope of the words "regulation of trade and commerce" in Parsons' case also necessitate a restrictive reading of the Wharton test of "general interest throughout the Dominion". The question, of course, is how much is to be subtracted from these words, and on what basis?

iii) Regulating the Contracts of a Particular Business or Trade

iii) Regulating the Contracts of a Particular Business or Trade

Although the Privy Council in Parsons was unwilling to consider in detail the boundary between ss. 91(2) and 92(13) it did go as far as holding that "regulation of trade and commerce" could not include "the power to regulate by legislation the contracts of a particular business or trade". In Re Board of Commerce Act and the Combines and Fair Prices Act of 1919 (1920), 1920 CanLII 471 (SCC), 60 S.C.R. 456, Duff J. applied his reading of this holding to restrict the extent of the general trade and commerce power. In this case, at p. 465, Anglin J., speaking for three members of the Court, adopted the Wharton test:

Probably the test by which it must be determined whether a given subject matter of legislation, primâ facie ascribable to either, properly falls under s. 91 (2) or s. 92 (13) is this:—Is it as primarily dealt with, in its true nature and character, in its pith and substance, (in the language of Viscount Haldane's judgment just quoted)

a question of general interest throughout the Dominion

or is it (in Lord Watson's words in the Local Prohibition Case)

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from a provincial point of view of a local or private nature?

In order to be proper subjects of Dominion legislation under "the regulation of trade and commerce" it may well be that the matters dealt with must not only be such as would ordinarily fall within that description, but, if the legislation would otherwise invade the provincial field, must also be

of general interest throughout the Dominion,

or, in the language used by Lord Watson in The Local Prohibition Case (p. 361) in regard to legislation under the peace, order and good government clause upon matters not enumerated in s. 91, must be

unquestionably of Canadian interest and importance.

Having found that the issue of hoarding and profiteering was an issue "unquestionably of Canadian interest and importance", Anglin J. found the impugned legislation to have been validly enacted, inter alia under s. 91(2). Three other members of the Court disagreed.

Duff J., writing for himself, treated the question of the relationship between ss. 91(2) and 92(13) as one of simple subtraction. He began with the finding in Parsons that s. 91(2) did not authorize the regulation of the contracts of a particular business or trade. In his view this meant that Parliament could not itself have enacted the individual orders and prohibitions with regard to men's ready-made clothing in Ottawa that were the source of the litigation in question. Since Parliament could not have enacted orders with reference to any single commodity or trade it could equally not have passed legislation prescribing such orders for a large number of commodities and trades. And since Parliament itself could not enact such orders it must be equally incapable of delegating this power to a body, such as the Board of Commerce, to enact. On the basis of this reasoning Duff J. concluded that Parliament's general trade and commerce power did not authorize the establishment of a Board capable of making specific

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orders to prevent hoarding and profiteering.

In view of the equal division in the Supreme Court, the legislation was upheld. On appeal, as mentioned earlier, the Privy Council held the enactments to be beyond federal competence, whether under the criminal law, trade and commerce or peace, order and good government powers. With specific reference to trade and commerce, Viscount Haldane was of the opinion that s. 91(2) could only be invoked as an ancillary to another head of power under s. 91.

As I have earlier noted, Viscount Haldane's restrictive reading of s. 91(2) was repudiated by the Privy Council in the P.A.T.A. case, supra, but the starting point of Duff J.'s reasoning in Board of Commerce, namely a subtraction from s. 91(2) of what Parsons found to be within provincial jurisdiction, has gained general acceptance and is to be found prominently in most cases dealing with s. 91(2) and the general trade and commerce power. Thus, in 1938, in Reference re Alberta Statutes, supra, Duff C.J. was able, at p. 119, to say of the principle cases on the topic to date:

... if attention be directed to the thing which was the actual subject of decision, rather than to what was said, it will be found that they are completely and accurately summed up in the observation of Lord Atkin in A.-G. for B.C. v. A.-G. for Canada, 1937 CanLII 364 (UK JCPC), [1937] A.C. 377, at 387 in these words:

regulation of trade and commerce does not permit the regulation of individual forms of trade or commerce confined to the province.

Forty-one years later, in the Labatt case, supra, after confirming that the proper test under the second branch of the trade and commerce power is still whether the legislation deals with a question of general interest throughout the Dominion, Estey J. went on at p. 940 to state, "What clearly is not

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of general national concern is the regulation of a single trade or industry", a proposition which he extended to hold true even if the regulation were on a national basis. I concurred in Estey J.'s judgment in Labatt and I agree with this statement of what is to be subtracted from the notion of "a question of general interest throughout the Dominion". I also agree that Lord Atkin's conclusion in Natural Products Marketing Act Reference as cited by Duff C.J. in Reference re Alberta Statutes does accurately reflect the ratio of the early trade and commerce cases. I do not, however, believe that any of this leads necessarily to the further propositions enunciated in Duff J.'s single judgment in the Board of Commerce case, nor to the conclusion propounded by the respondent and the intervenant Attorneys General that the relevant legislation in the present case cannot validly depend on the federal trade and commerce power.

Every general enactment will necessarily have some local impact, and if it is true that an overly literal conception of "general interest" will endanger the very idea of the local, there are equal dangers in swinging the telescope the other way around. The forest is no less a forest for being made up of individual trees. Whatever the constitutional flaws in The Board of Commerce Act and The Combines and Fair Prices Act, 1919, they cannot be attributed, as Duff J. seems to contend, to the fact that any individual order made by the Board would have its effect on a business or trade in the province. Were that the test then no economic legislation could ever qualify under the general trade and commerce power. Such a conception is merely the obverse of the equally unacceptable proposition that economic legislation qualifies under the general trade and commerce rubric merely because it applies equally and uniformly throughout the country.

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The reason why the regulation of a single trade or business in the province cannot be a question of general interest throughout the Dominion, is that it lies at the very heart of the local autonomy envisaged in the Constitution Act, 1867. That a federal enactment purports to carry out such regulation in the same way in all the provinces or in association with other regulatory codes dealing with other trades or businesses does not change the fact that what is being created is an exact overlapping and hence a nullification of a jurisdiction conceded to the provinces by the Constitution. A different situation obtains, however, when what is at issue is general legislation aimed at the economy as a single integrated national unit rather than as a collection of separate local enterprises. Such legislation is qualitatively different from anything that could practically or constitutionally be enacted by the individual provinces either separately or in combination. The focus of such legislation is on the general, though its results will obviously be manifested in particular local effects any one of which may touch upon "Property and Civil Rights in the Province". Nevertheless, in pith and substance such legislation will be addressed to questions of general interest throughout the Dominion. The line of demarcation is clear between measures validly directed at a general regulation of the national economy and those merely aimed at centralized control over a large number of local economic entities. The regulations in the Labatt's case were probably close to the line. It may also well be that, given the state of the economy in 1920 and the actual mechanics of the legislation, The Board of Commerce Act and The Combines and Fair Prices Act, 1919, amounted simply to an attempt to authorize the issuance of an uncoordinated series of local orders and prohibitions.

In approaching this difficult problem of characterization it is useful to note the remarks of the Chief Justice in MacDonald v. Vapor Canada Ltd., supra, at p. 165, in which he cites as possible indicia for a valid exercise of the general trade and commerce power the presence of a national regulatory

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scheme, the oversight of a regulatory agency and a concern with trade in general rather than with an aspect of a particular business. To this list I would add what to my mind would be even stronger indications of valid general regulation of trade and commerce, namely (i) that the provinces jointly or severally would be constitutionally incapable of passing such an enactment and (ii) that failure to include one or more provinces or localities would jeopardize successful operation in other parts of the country.

The above does not purport to be an exhaustive list, nor is the presence of any or all of these indicia necessarily decisive. The proper approach to the characterization is still the one suggested in Parsons, a careful case by case assessment. Nevertheless, the presence of such factors does at least make it far more probable that what is being addressed in a federal enactment is genuinely a national economic concern and not just a collection of local ones.

It is with these considerations in mind that I turn to the question of whether s. 32(1)(c) can be said validly to depend on the federal trade and commerce power.

Section 32(1)(c) as Trade and Commerce

Section 32(1)(c) as Trade and Commerce

The first question is how much of the Combines Investigation Act is relevant for purposes of deciding whether s. 32(1)(c) is authorized by the federal trade and commerce power.

In R. v. Hoffman-LaRoche Ltd. (1981), 1981 CanLII 1690 (ON CA), 33 O.R. (2d) 694, the Ontario Court of Appeal considered whether the Attorney General of Canada was constitutionally competent to prosecute an alleged violation of s. 34(1)(c) of the Act. Speaking for the Court, Martin J.A. held at pp. 735-36 that the proper approach was to consider the statute as a whole:

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Mr. Henderson and Mr. Mundell forcefully argued that, even if some parts of the Combines Investigation Act could be supported as part of a regulatory scheme in respect of the general regulation of trade affecting the whole country, s. 34 can be nothing but criminal law and its constitutional validity accordingly depends upon s. 91(27). They relied upon the history of the provisions of s. 34(1)(c) which, as previously mentioned, was originally enacted in 1935 as s. 498A(1)(c) of the Criminal Code and was subsequently held to be validly enacted by Parliament under s. 91(27): Reference re s. 498A of Criminal Code, supra, sub nom. A.-G. B.C. v. A.-G. Can., supra.

I am, with deference, of the view that this is not the correct approach, and, in my opinion, it was not the approach of the Supreme Court of Canada in R. v. Hauser, supra. The legislation in question must be viewed as a whole and classified, and if viewed as a whole, it may be constitutionally supported under s. 91(2) as the regulation of trade affecting the whole country, then on the principle enunciated in Hauser, supra, as I understand it, it is not material to the constitutional question here raised that a particular offence created by the enactment may properly be characterized as criminal law, or could have been enacted under the criminal law power. The learned trial judge concluded, rightly in my view, that the Combines Investigation Act could also be supported under the trade and commerce power as well as under s. 91(27).

In the present case in the Alberta Court of Appeal Prowse J.A. disagreed with this approach. He was of the opinion that the majority judgment in Hauser did not support the proposition cited by Martin J.A. It was also his view that if, as he thought, s. 32(1)(c) when considered in isolation fell within s. 92(13), property and civil rights in the province, then the mere presence within the same Act of provisions regulating trade and commerce would not transform this section into a component of a valid regulatory scheme under the second branch of s. 91(2). Despite his disagreement with Martin J.A., however, Mr. Justice Prowse did consider the Combines Investigation Act at large as well as a number of specific

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sections in addition to s. 32(1)(c) in arriving at his conclusions.

In the courts below in both R. v. Hoffman-LaRoche Ltd. (1980), 1980 CanLII 1615 (ON SC), 28 O.R. (2d) 164, and the present case, (reported at 1980 CanLII 1164 (AB QB), [1981] 2 W.W.R. 701), the judge at first instance found the respective sections of the Combines Investigation Act to be valid under s. 91(2) without considering how much of the Act was relevant for the determination.

In his submissions to this Court the Attorney General of Canada cites the contents and structure of the Act as a whole in support of his contention that s. 32(1)(c) is legislation in relation to trade and commerce, being part of a regulatory scheme satisfying the requirements for the second branch of s. 91(2) mentioned in Parsons. The Attorney General of Ontario contends that s. 32(1) (c) is an independent and separate provision with no interaction with other provisions of the Act and severable from them. He therefore submits that its constitutional characterization must be arrived at by considering it alone.

It is obvious at the outset that a constitutionally invalid provision will not be saved by being put into an otherwise valid statute, even if the statute comprises a regulatory scheme under the general trade and commerce branch of s. 91(2). The correct approach, where there is some doubt that the impugned provision has the same constitutional characterization as the Act in which it is found, is to start with the challenged section rather than with a demonstration of the validity of the statute as a whole. I do not think, however, this means that the section in question must be read in isolation. If the claim to constitutional validity is based on the contention that the impugned provision is part of a regulatory scheme it would seem necessary to read it in its context. If it can in fact be seen as part of such a scheme, attention will then shift to the constitutionality of the scheme as a whole. This is essentially the approach suggested by the Chief Justice in his examination of the constitutionality of the then s. 7(e) of the Trade

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Marks Act in MacDonald v. Vapor Canada Ltd., supra, at p. 159:

Since s. 7(e) is not a trade mark provision, its inclusion in the Trade Marks Act does not stamp it with validity merely because that Act in its main provisions is quantitatively unchallenged. I come back to the question whether s. 7, and particularly s. 7(e), can stand as part of the scheme of the Trade Marks Act and other related federal legislation. If it can stand alone, it needs no other support; if not, it may take on a valid constitutional cast by the context and association in which it is fixed as complementary provision serving to reinforce other admittedly valid provisions.

As a starting point for the characterization, I am willing to take the above quote literally and begin with s. 32(1)(c) "alone":

32. (1) Every one who conspires, combines, agrees or arranges with another person

(c) to prevent, or lessen, unduly, competition in the production, manufacture, purchase, barter, sale, storage, rental, transportation or supply of a product, or in the price of insurance upon persons or property, .. .

is guilty of an indictable offence and is liable to imprisonment for five years or a fine of one million dollars or both.

In the Criminal Code of 1892 this provision appeared as s. 520(c):

520. Every one is guilty of an indictable offence .. . who conspires, combines, agrees or arranges with any other person,...

(c) to unduly prevent, limit or lessen the manufacture or production of any such article or commodity, or to unreasonably enhance the price thereof; …

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The underlined words in this section refer back to subs. (a) which dealt with undue limitations in the facilities for: dealing, transporting, producing .. . or dealing in any article or commodity which may be a subject of trade or commerce.

Thus, even in 1892 there was a link between the predecessor of s. 32(1)(c) and trade and commerce, at least in its literal meaning. The question, of course, is not whether s. 32(1)(c) or its predecessors come within the literal definition of "regulation of trade and commerce". Clearly they do. The question is whether there is any constitutional reason for limiting the meaning of that phrase so as to exclude such enactments.

Prowse J.A. [at (1982), 1982 ABCA 50, 135 D.L.R. (3d) 89, at p. 112] dealt with this question as follows:

When s. 32(1)(c) is considered under s. 91(27) of the B.N.A. Act, 1867, it is clear that it is directed at conduct which is harmful and iniquitous. If it is considered under s. 91(2) "the regulation of trade and commerce" it would be the commercial aspect that comes to the fore. It would then be directed not at conduct per se but to matters such as commercial practices related to contracts. In my view, merely because the exercise of federal power under s. 91(27) has a commercial aspect does not bring it within s. 91(2). If it requires support under the criminal law power then it is not a valid exercise of the power set out in s. 91(2). When s. 32(1)(c) of the Combines Investigation Act is viewed from its commercial aspect it merely prohibits certain commercial practices which, if not viewed as the exercise of the criminal law power, fall within s. 92(13), "property and civil rights in the Province".

Mr. Justice Prowse recognized that in MacDonald v. Vapor Canada Ltd., supra, Laskin C.J. was prepared to entertain the possibility of validating economic legislation under s. 91(2) if it were truly part of a regulatory scheme. But quoting the Chief Justice on characterization of s. 7 (e) of the Trade Marks Act in that case, he concluded that

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the same points could be made about s. 32(1)(c) and the similar parts of the Combines Investigation Act:

The provision is not directed to trade but to the ethical conduct of persons engaged in trade or in business, and, in my view, such a detached provision cannot survive alone unconnected to a general regulatory scheme to govern trading relations going beyond merely local concern. Even on the footing of being concerned with practices in the conduct of trade, its private enforcement by civil action gives it a local cast because it is as applicable in its terms to local or intraprovincial competitors as it is to competitors in interprovincial trade.

The Combines Investigation Act also is directed at "ethical conduct of persons engaged in trade or business", ethical conduct, the breach of which is treated as commercial fraud. The local cast of that conduct is recognized by s. 39 (rep. & sub. idem) and s. 31.1 (enacted idem) of the Act, Part V.

Is it in fact accurate to say that s. 32(1)(c) is unconnected to a regulatory scheme? Staying for the moment with s. 32(1)(c) in isolation, what is notable about this provision is the vagueness of the offence it prescribes. The basic test for criminality is "unduly" restricting competition. Considered as criminal law this requirement of "undue" restriction has posed difficult interpretive questions for the courts. See Aetna Insurance Co. v. The Queen, 1977 CanLII 174 (SCC), [1978] 1 S.C.R. 731. Considered as economic legislation the specification of "undue" restriction makes the impact of s. 32(1) totally unpredictable in the absence of some policy direction afforded by a larger context. For this reason it is now appropriate to expand the paramaters [sic] of the analysis.

Section 32 itself provides some policy focus for s. 32(1). Subsection (2) removes some kinds of combinations and agreements from the ambit of s. 32(1). Subsection (3) qualifies subs. (2). Subsection (4) removes conspiracies in relation to exports

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from s. 32(1), but subs. (5) qualifies and clarifies this exclusion. Finally subss. (6) and (7) introduce further qualifications to the applicability of subs. (1). The basis of these inclusions and exclusions cannot be said to be the moral or ethical quality of the acts in question. The purpose of these specifications seems to be to include the kinds of acts and agreements that are considered to have economically harmful consequences while ignoring the same kinds of acts and agreements when their consequences are beneficial or at least domestically harmless.

Let us further broaden the analysis. The six sections which follow s. 32 in Part V of the Act—Offences in Relation to Competition—repeat the same pattern with respect to other named commercial offences. They proscribe certain kinds of commercial conduct affecting competition and then either in the sections themselves or by reference to the definitions section, they narrow the scope of these offences to include only what is considered to be economically deleterious.

With respect, all this casts considerable doubt on the statement of Mr, Justice Prowse that, like the former s. 7(e) of the Trade Marks Act, the Combines Investigation Act is simply directed at "ethical conduct of persons engaged in trade or business ... " the breach of which is treated as commercial fraud. The raison d'être of the section lies at least as much in economics as in ethics.

In the lines immediately before the passage from MacDonald v. Vapor Canada set out by Prowse J.A. in which the quoted phrase appears, Laskin C.J. had said [at p. 165]:

One looks in vain for any regulatory scheme in s. 7, let alone s. 7(e). Its enforcement is left to the chance of private redress without public monitoring by the continuing oversight of a regulatory agency which would at least level some colour to the alleged national or Canada-wide sweep of s. 7(e).

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In this respect as well, the context of s. 32(1)(c) differs from that of the impugned section of the Trade Marks Act. The earlier parts of the Combines Investigation Act set out a complex administrative machinery. Part I of the Act provides for a system of investigation and research under which inquiries can be made by the Director of Investigations and Research. Part II supplements the investigatory procedure by provisions which allow the Director to prepare a report to be submitted to the Restrictive Trade Practices Commission, which in turn reports to the Minister of Consumer and Corporate Affairs assessing the effect on the public interest of the arrangements and practices in question and making recommendations as to the application of remedies to these arrangements and practices. These provisions are of relevance to an assessment of s. 32(1)(c) because they indicate the existence of a process by which a policy is evolved to give substance to the offence of "unduly" restricting competition.

Even before the promulgation of the 1976 amendments which elaborated these administrative procedures, the determination of what was an illegal business combination was at least partly an administrative decision made on the basis of economic policy considerations. In [Constitutional Aspects of Canadian Anti-Combines Law Enforcement] (1969), 47 Can. Bar Rev. 161, Professor McDonald says at pp. 211 and 213:

The decision to prosecute is usually made only after the parties and the facts of each case have been subjected to investigation by the Director of Investigation and Research and to a hearing before the Restrictive Trade Practices Commission in accordance with the provisions of the Act. Indeed, the scheme of the statute envisages the decision to prosecute only being made after the winnowing process of the administrative discretions, upon consideration of the Restrictive Trade Practices Commission view of the effect of the arrangement upon the public interest, and after the exercise of any relevant political judgment.

Often the critical aspect of enforcement is not who absorbs the cost, but rather who exercises any discretion as to whether, and if so whom, to prosecute. This can be

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very important in anti-combines cases because only at this point may such factors as unequal business pressures, the extent of complicity or economic effect be accommodated. The decision is presumably also based partly on the Commission's appraisal of the public interest involved, and upon the Commission's recommended remedies.

Section 32(1)(c) depends upon the administrative machinery which controls the exercise of this discretion.

Expanding the focus even wider, the criminal remedies in Part V are not the only means of enforcing the Act and its regulatory policies. Sections 28-31 contain additional remedies enforceable by various judicial and governmental authorities in a variety of forums. Without passing on the wisdom or the constitutionality of any of these provisions, it is clear their purpose is to provide a flexible repertoire of remedial responses to enforce the policies underlying the Act. And the existence of ss. 28-31 is yet another indication that s. 32(1) is part of a regulatory scheme.

Having found that s. 32(1)(c) is not an isolated provision, but rather part of a regulatory scheme, it still remains to assess whether this scheme is valid under the second branch of s. 91(2). The fact of forming part of such a scheme is but one indicium of validity and not in itself determinative. A number of cases have found that the scheme embodied by the Act also displays such additional indicia as a national scope, a general application and a concern with the trade as a whole rather than with a single business. In P. G. du Canada v. Miracle Mart Inc., [1982] C.S. 342, at p. 353, Ryan J. provides a comprehensive summary of the factors in favour of finding of validity under the general trade and commerce power:

[TRANSLATION] ... I think it clear that s. 37.1 forms part, as I mentioned earlier, of a self-contained regulatory scheme designed to eliminate unfair trade practices throughout Canada, not at any specific place or in any

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particular business or industry. Put otherwise, Part V of the Act and s. 37.1 in particular are not meant to prohibit specific practices in a province or in an industry: its purpose is to eliminate unfair competition throughout Canada. I can think of no better illustration of exercise of the power over "The Regulation of Trade and Commerce" in Canada: B.N.A. Act, s. 91(2).

A similar list of reasons for validity was enunciated by Linden J. in R. v. Hoffman-La Roche Ltd., supra, at pp. 191-92:

... I am of the view that s. 34(1)(c) can also be constitutionally supported on the basis of s. 91(2). It is part of a legislative scheme aimed at deterring a wide range of unfair competitive practices that affect trade and commerce generally across Canada, and is not limited to a single industry, commodity or area. The conduct being prohibited is generally of national and of international scope. The presence or absence of healthy competition may affect the welfare of the economy of the entire nation. It is, therefore, within the sphere of the federal Parliament to seek to regulate such competition in the interest of all Canadians. (It would likely be otherwise, however, if the competition being regulated was merely of a local nature, in which case, the matter might not fall within the federal trade and commerce power.)

As the parenthetical ending to this passage indicates, it is still necessary even in the face of all these factors to consider the issue of constitutional balance, and whether a finding of validity under the trade and commerce power might not erode the local autonomy in economic regulation contemplated by the Constitution. This was the fear voiced by Marceau J. in Rocois Construction Inc. v. Quebec Ready Mix Inc., 1979 CanLII 4144 (FC), [1980] 1 F.C. 184 (T.D.), at p. 203:

It is because a general statute on competition as such, that is a statute regulating competition beyond the detection, prevention and penalization of disapproved and proscribed acts, may make such an encroachment [on provincial powers] possible that I do not think that it can be based on the power of Parliament over trade and commerce. As the prime mover in our system of production and exchange of goods and services, competition

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depends on so many factors and takes on so many aspects that it may give rise to legislation as far-reaching as it is diversified. To admit that, as such, it is covered by Parliament's power pursuant to subsection (2) of section 91, would be to open the door to a potential trenching on the powers of the provinces which, in my view, the courts have definitively rejected, despite their persistent hesitation.

For the reasons cited earlier I would in any event be inclined to reject this contention. To give it heed would amount to a denial of the possibility of Parliament ever validly exercising its general trade and commerce power, a power which if properly understood and properly constrained does not erode local autonomy but rather complements it. I would also, however, mention an additional factor. A scheme aimed at the regulation of competition is in my view an example of the genre of legislation that could not practically or constitutionally be enacted by a provincial government. Given the free flow of trade across provincial borders guaranteed by s. 121 of the Constitution Act, 1867 Canada is, for economic purposes, a single huge marketplace. If competition is to be regulated at all it must be regulated federally. This fact leads to the syllogism cited by Hogg and Grover, The Constitutionality of the Competition Bill (1977), 1 Can. Bus. L.J. 197, at p. 200:

... regulation of the competitive sector of the economy can be effectively accomplished only by federal action. If there is no federal power to enact a competition policy, then Canada cannot have a competition policy. The consequence of a denial of federal constitutional power is therefore, in practical effect, a gap in the distribution of legislative powers.

It has been suggested that in The King v. Eastern Terminal Elevator Co., 1925 CanLII 82 (SCC), [1925] S.C.R. 434, at p. 448, [1925] 3 D.L.R. 1, at p. 12, Duff J. endorsed the existence of such a distributive gap when he identified as a "lurking fallacy" in a federal argument the proposition "that the Dominion has such power because no single province, nor, indeed, all the provinces acting together, could put into effect such a sweeping scheme." I am of the

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opinion that Duff J. was in this quote speaking of logistical or financial obstacles standing in the way of provincial action. If he intended to go beyond this and identify an area in which neither the federal nor the provincial government could constitutionally legislate then, with great respect, I believe him to have been in error. The same error would deny federal constitutional competence to legislate under the general trade and commerce power.

All these considerations lead to the conclusion that s. 32(1)(c) is valid federal legislation under s. 91(2) of the Constitution Act, 1867 as well as s. 91(27). The Attorney General of Canada also contends that s. 32(1) (c) is valid under the peace, order and good government power, but in view of the finding of validity under s. 91(2) it is unnecessary to pursue this contention.

Authority to Prosecute under s. 32(1) (c)

Authority to Prosecute under s. 32(1) (c)

The result of holding s. 32(1)(c) to be valid under both the criminal law and the trade and commerce power is in my view a finding of concurrent federal and provincial prosecutorial authority. The majority in Hauser held that the authority to prefer indictments and conduct prosecutions with reference to legislation other than that enacted under s. 91(27) was validly vested in the Attorney General of Canada. Therefore, in so far as s. 32(1)(c) depends on the trade and commerce power, the federal Attorney General is the proper prosecutor. As to prosecutorial authority by virtue of the characterization of s. 32(1)(c) as criminal law, I am still of the opinion that only the provincial Attorney General can validly prosecute criminal enactments. See my reasons, R. v. Wetmore [1983 CanLII 29 (SCC), [1983] 2 S.C.R. 284], judgment which is being delivered concurrently herewith.

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In Hauser I argued against concurrent federal and provincial prosecutorial authority under ss. 91(27) and 92(14) respectively. I do not want to be understood as having changed my mind about concurrency in that situation in now endorsing concurrency as the result of simultaneous validity under two separate heads of federal authority.

As a practical matter concurrent federal and provincial prosecutorial authority may possibly mean that by virtue of the doctrine of federal paramountcy the provincial Attorney General can at any time be validly excluded from the prosecutorial function. Indeed, that is the purported effect of s. 2(2) of the Criminal Code.

For both the legal and the practical reasons cited in Hauser this is unacceptable in the case of legislation dependent solely on the criminal law power. Where, however, there is another head of federal power justifying legislation also valid under s. 91(27), the situation is different.

In Hauser I observed that there is a certain unity and cohesion between the three aspects of law enforcement, investigation, policing and prosecution, which would be imperilled if the investigatory function were discharged at one level of government and the prosecutorial function at the other level. In Hauser this reasoning would have worked to the benefit of the provincial position, as I was of opinion that the Narcotic Control Act was criminal law. My opinion was then, and is now, that under s. 92(14) of the Constitution Act, 1867 to police and investigate criminal activity, and that authority to conduct and oversee criminal prosecutions is an inherent and essential part of such jurisdiction.

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This Court and the Privy Council, in both the P.A.T.A. and Dominion Trade and Industry Commission cases, held that the investigative aspect of anti-combines enforcement is properly conferred on federal officials and boards as an exercise of the criminal law power. Further, the same two cases upheld provisions permitting the Attorney General of Canada to lay informations, commence prosecutions and attend proceedings related to federally-initiated combines charges. Even if such findings had not been made on the basis of s. 91(27), these same powers would clearly be within federal competence as necessarily incidental to the trade and commerce power. In these circumstances confiding the prosecutorial function solely to the provinces under s. 92(14) would have precisely the effect of separating investigative and prosecutorial functions which I found unacceptable in the area of pure criminal law. As a consequence, under the Combines Investigation Act concurrent prosecutorial power with its attendant prospect of federal paramountcy does not imperil effective enforcement. Neither does it offend historical tradition or constitutional precedent. It does all these things when applied with reference to enactments dependent solely on the criminal law power.

For these reasons it is both legally and pragmatically correct to find that s. 15(2) of the Combines Investigation Act and s. 2(2) of the Criminal Code, in so far as they refer to prosecutions under the Combines Investigation Act, are both intra vires.

Conclusion

Conclusion

I would answer the questions in the following manner:

Question 1: "Yes" in the sense that s. 32(1)(c) of the Combines Investigation Act is supportable under s. 91(27) and also supportable under s. 91(2). If the meaning of the question is

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whether s. 32(1)(c) is supportable solely under s. 91(27) I would answer "No".

Question 2: "Yes" as to s. 15(2) of the Combines Investigation Act, and "yes" as to s. 2(2) of the Criminal Code in so far as they relate to s. 32(1) of the Combines Investigation Act. However in so far as s. 2(2) of the Criminal Code generally gives the Attorney General of Canada authority to initiate and conduct prosecutions resting on offences created under federal legislation enacted solely under s. 91(27) of the Constitution Act, 1867, it is ultra vires.

In the result, the Attorney General of Canada has authority under s. 15(2) of the Combines Investigation Act to conduct the prosecution at issue in this case.

I would allow the appeal and vary the judgment of the Alberta Court of Appeal by answering the questions posed for decision in the manner above set forth.

The following are the reasons delivered by

Reasons of Beetz and Lamer JJ.

BEETZ AND LAMER JJ.—We have had the considerable advantage of reading the reasons for judgment of the Chief Justice and of our brother Dickson and we find ourselves in substantial agreement with those of our brother Dickson to the effect that s. 32(1)(c) of the Combines Investigation Act, R.S.C. 1970, c. C.-23, as amended by 1974-75-76 (Can), c. 76, s. 14(1), has been validly enacted by the Parliament of Canada under its authority to make laws in relation to trade and commerce, pursuant to s. 91(2) of the Constitution Act, 1867.

It follows that the constitutional validity of s. 32(1)(c) does not depend upon s. 91(27) of the Constitution Act, 1867, the criminal law power of Parliament, whether or not it can also be supported under this section.

We would accordingly answer "No" to the first question stated by the Chief Justice and we do not find it necessary to answer the second question

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since it is predicated upon an affirmative answer to the first one.

We would allow the appeal, set aside the judgment of the Alberta Court of Appeal and restore the judgment of the trial judge, Medhurst J.

There should be no order as to costs either to or against the parties or to or against the interveners.

Appeal allowed.

Solicitor for the appellant: Roger Tassé, Ottawa.

Solicitors for the respondents Canadian National Transportation, Limited and Canadian National Railway Company: R. W. Lusk and P. G. Foy, Vancouver

Solicitors for the respondents Canadian Pacific Transport Company Limited and Kenneth G. Paulley: N. D. Mullins and L. Taylor, Vancouver.

Solicitors for the intervener the Attorney General for Alberta: W. Henkel and Nolan D. Steed, Edmonton.

Solicitor for the intervener the Attorney General for Ontario: John Cavarzan, Toronto.

Solicitors for the intervener the Attorney General of Quebec: Henri Brun, Lorraine Pilette and Jean-François Dionne, Quebec.

Solicitors for the intervener the Attorney General of New Brunswick: John H. Evans and Claude Pardons, Fredericton.

Solicitors for the intervener the Attorney General of British Columbia: E. R. A. Edwards and Joseph J. Arvay, Victoria.

Solicitor for the intervener the Attorney General for Saskatchewan: James C. MacPherson, Regina.