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|Major Studies of Drugs and Drug Policy|
|The Report of the Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs - 1972|
The Report of the Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs - 1972
5. The Law
What follows is some background on the law to facilitate appreciation of the legal issues in the policy considerations. An attempt has been made to confine the material, as far as possible, to the issues with respect to cannabis, although some of it necessarily applies to law and law enforcement in connection with other drugs. In a subsequent report there will be a more extended treatment of the law as it applies to the other drugs. In particular, there will be a more detailed discussion of the international conventions and Canadian legislation as they bear on the question of drug classification and the controls over drugs which must be made available for medical purposes. There will also be discussion of the correctional system in the context of the issue of compulsory treatment. It was thought desirable, however, at this time to develop a general constitutional perspective with respect to non-medical drug use, including the issue of jurisdiction with respect to compulsory treatment.
Canada is presently obliged by the Single Convention on Narcotic Drugs, 1961,1 to limit the production, distribution and use of certain forms of cannabis to medical and scientific purposes. The Convention applies to "cannabis", which is defined as "the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops) from which the resin has not been extracted"; to "cannabis resin", or hashish; and to the "cannabis plant". It also applies to extracts and tinctures of cannabis, but not to THC, which is covered by the Convention on Psychotropic Substances, 1971. Canada is not yet bound by this Convention.
It is generally considered that the above definition of "cannabis" in the convention would permit the legalization of a form of marijuana which consisted of the leaves of the cannabis plant and did not contain any of the flowering or fruiting tops. It should be observed, however, that in an article Which deals with the cultivation of the cannabis plant for purposes permitted by the Convention, it is provided that "The parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant." It is not too clear what meaning and scope should be attributed to this provision. There would appear to be some ambivalence in the Convention concerning marijuana which consists of the leaves alone. On the one hand, the parties do not appear to be required to make the production, distribution and use of the leaves alone for non-medical and nonscientific purposes a punishable offence; on the other hand, they are asked, Presumably to' the extent that they permit cultivation of the cannabis plant for Medical, scientific or industrial purposes, to prevent diversion of the leaves to Purposes other than those permitted by the Convention.
Cannabis (marijuana) and cannabis resin (hashish) are not only included in Schedule I of the Convention, to which the general control measur s.apply, but they are also included, together with heroin, in Schedule W, by which the parties are invited (although not obliged) to apply even stricter controls, including prohibition for medical purposes.
The control measures which are called for by the Single Convention are annual estimates by the parties of their requirements of drugs for medical and scientific purposes, annual returns to establish that their use of prohibited drugs has not exceeded the estimated requirements, licensing of import and exports, manufacture, and internal distribution (unless carried out by a state enterprise), and penal prohibitions of conduct related to unlawful distribution and use.
Article 36, paragraph 1, requires certain kinds of conduct to be made punishable offences as follows:
Thus, as long as Canada is a party to the Single Convention, it is obliged to make the above conduct with respect to cannabis, cannabis resin, and extracts and tinctures of cannabis, a punishable offence.
It has generally been assumed that "possession" in article 36 includes possession for use as well as possession for the purpose of trafficking. This is a reasonable inference from the terms of article 4, which obliges the parties "to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs." There is also article 33, which provides that "The Parties shall not permit the possession of drugs except under legal authority." On the other hand, one may take measures which will have the effect of restricting use to medical and scientific purposes without necessarily making use or simple possession for other purposes a penal offence. (This is the present policy in Canada with respect to the controlled drugs [amphetamines and barbiturates]; the drugs can only be obtained upon prescription, but their unauthorized possession is not a criminal offence.) It is to be noted that the word "use" appears in article 4 of the Single Convention but not in article 36. Moreover, the word "possession" appears in a context of distribution rather than one of use, and this is possibly reinforced by the sense of the French version-detention. On the face of article 36 it would not be unreasonable to argue that what is contemplated is possession for the purpose of trafficking rather than possession for use, and that the requirements of the article are satisfied if the former kind of possession is made a penal offence. The prevailing view, however, is that the word "possession" in article 36 includes simple possession for use.
On becorning parties to the Convention states were permitted to make transitional reservation for the use of cannabis, cannabis resin and extract and tinctures of cannabis for non-medical purposes if such practices were traditional in their territories. In such cases the use of cannabis must be abolished, within twenty-five years from the date the Convention came int force. namely from December 13, 1964.
As long as a state remains a party to the Convention, it is bound by it provisions, but the Convention provides for amendment and withdrawal.
Any party may propose an amendment. The text of the amendment and the reasons for it must be communicated to the Secretary-General who, in turn, cornmunicates them to the parties and to the Economic and Social Council. The Council may decide either to call a conference in accordance with the Charter of the United Nations to consider the proposed amendment or to ask the parties whether they accept the amendment, inviting them to submit any comments on it. If the latter course is adopted, and the proposed amendment has not been rejected by any party within eighteen months after it has been circulated, it shall thereupon enter into force. If it is rejected by any party. the Council may decide, as a result of comments received from the parties, whether a conference should be called to consider the amendment.
The Convention expressly provides that a party may withdraw from it by the procedure known as denunciation. This is carried out by depositing an instrument in writing with the Secretary-General. The denunciation, if received by the Secretary-General on or before the first day of July in any year, shall take effect on the first day of January in the succeeding year, and if received after the first day of July, shall take effect as if it had been received on or before the first of July in the succeeding year.
As indicated above, the various forms of cannabis now fall under two different international classifications for control purposes. Marijuana and hashish, as well as extracts. and tinctures of cannabis, are classified with the opiate narcotics, including heroin, in the Single Convention on Narcotic Drugs, 1961, whereas THC and its isomers are classified with the hallucinogens, including LSD, in Schedule I of the Convention on Psychotropic Substances, 1971. Presumably, there will be a movement eventually to bring all forms of cannabis under a single international control instrument. In fact, however, the Control regime which is reserved for the substances in Schedule I of the Convention on Psychotropic Substances, 1971, is comparable in strictness to that which applies under the Single Convention. Parties are required, with respect to Schedule I substances, including THC, to "prohibit all use except for scientific and very limited medical purposes by duly authorized persons, medical or scientific establishments which are directly under the control of their Governments or specifically approved by them.... Manufacture, distri bution and possession of Schedule I substances for such purposes are to be subject to strict controls.
The obligations of the parties with respect to the creation of penal offences affecting the drugs covered by the Convention are set out in article 22 as follows:
Article 22 of the Convention on Psychotropic Substances, 1971, does not indicate the specific kinds of conduct which must be made punishable offences, as does article 36 of the Single Convention. Instead, it refers generally to any action contrary to such laws and regulations as the parties see fit to adopt in fulfilment of their obligations under the Convention. This would appear to offer more flexibility as to the choice of conduct which must be made a punishable offence. On the other hand, there is with respect to Schedule I drugs, including THC, an explicit obligation to prohibit the use of such drugs for non-medical and non-scientific purposes, and this would appear necessarily to involve making such use, or at least simple possession for purposes of such use, a punishable offence. This is not the case with the drugs in Schedule II (which includes the amphetamines and drugs with amphetamine-like action), Schedule III (short-acting barbiturates and drugs with similar action) and Schedule IV (other hypnotics and tranquilizers). A party is required to limit, "by such measures as it considers appropriate", the manufacture. distribution and "use and possession" of these drugs to medical and scientific purposes. Such drugs are to be made available only upon prescription but there does not appear to be an obligation to make use or simple possession of such drugs for unauthorized purposes a punishable offence.
The Convention on Psychotropic Substances contains the same provisions respecting amendment and denunciation as the Single Convention.
Article 32 of the Convention is important as indicating the extent to which a state may become a party with reservations or qualifications concerning particular provisions. Reservations may be made with respect to certaill specified provisions without the consent of the other parties. A state may make reservations with respect to other provisions of the Convention at the time of signing if such reservations are not objected to by at least one-thir i d of the parties to the Convention within 12 months after they have received notice of such reservations from the Secretary-General. If less than one-third of the parties have objected, the reservations are deemed to be permitted, but the parties who have objected need not assume towards the reserving state any leg i al obligation under the Convention which is affected by the reservations.
THE CRIMINAL LAW BASIS OF FEDERAL LEGISLATION
Federal drug legislation is presently based upon the criminal law power. The protection of health from injurious substances and the prevention of adulteration, both as a threat to health and a species of fraud, have been held to be valid criminal law purposes. Both the Narcotic Control Act and the Food and Drugs Act create criminal offences. There is no essential difference between them in this respect. The maximum penalties for offences under the Food and Drugs Act are less severe than those under the Narcotic Control Act, and there is a greater opportunity to proceed by summary conviction rather than indictment but the effect of conviction under the two statutes is the same. There was a misapprehension in the course of our inquiry that conviction under the Food and Drugs Act was somehow not as serious as conviction under the Narcotic Control Act. This impression may have resulted from the fact that the Food and Drugs Act appears to be more of a regulatory than a criminal law statute. It regulates a whole range of food and drugs by a system of standards, inspection, and, in some cases, licensing. At the same time, however, it prohibits unauthorized distribution and possession of certain substances with penal consequences. The same is essentially true of the Narcotic Control Act. Both statutes are cast mainly in the form of prohibitions-no doubt to emphasize their criminal law character and the licensing regulations made under them indicate the scope and conditions of permitted conduct. In effect, the regulations complete the definition of the conduct that is prohibited.
There is no doubt that federal penal offences vary considerably in their relative seriousness, and the stigma which will attach to conviction in any case will depend on the nature of the offence and the law under which it arises. Apart from its independent power to create criminal offences, the Parliament of Canada has a regulatory jurisdiction in many areas in which it may create penal offences to enforce its legislation. In many cases these penal offences will be viewed as of relatively much less seriousness than the ordinary criminal law offence. In many cases there may not be a requirement of mens rea or criminal intent as a condition of liability.
Thus, for example, it was held by the Supreme Court of Canada in The Queen v. Pierce Fisheries Limited"' that mens rea or guilty knowledge was not an essential ingredient of the offence of being in possesion of short lobsters Contrary to the Lobster Fishery Regulations under the federal Fisheries Act. It was held that the common law presumption that mens rea is an essential ingredient of a criminal offence only applies to "cases that are criminal in the true sense", and that this was not such a case. Ritchie J., speaking for the majority of the Court said:
This distinction between offences which are truly criminal and those which are not has been drawn for the purpose of determining whether mens rea should be a requirement of liability. This is a matter which goes to the protection of the accused rather than the effect of conviction, although the absence of a requirement of mens rea may certainly be reflected in the stigma which attaches to conviction. In any event, the offences under the Narcotic Control Act which apply to cannabis as well as the opiate narcotics are clearly criminal offences "in the true sense", and knowledge that one is in possession of a prohibited drug is essential for the offence of simple possession. Similarly, the offences of trafficking, possession for the purpose of trafficking, and simple possession under Parts III and IV of the Food and Drugs Act with respect to controlled drugs and restricted drugs are "truly criminal" offences. There is no doubt that the general approach of the legislation and law enforcement towards a particular offence, and especially the relative seriousness of the penalties imposed, will, together with public attitudes, determine the degree of stigma resulting from conviction. But if a person who was convicted of simple possession of cannabis were asked if he had been convicted of a criminal offence he would have to answer yes. The same is true of conviction of simple possession of LSD under Part IV of the Food and Drugs Act.
OTHER POSSIBLE BASES OF FEDERAL JURISDICTION IN RELATION TO NONMEDICAL DRUG USE
There is a question as to whether the federal government has any constitutional basis. other than the criminal law power, for a comprehensive regulation of non-medical drug use. The question becomes one of some practical interest in connection with any proposal to replace the criminal law prohibition of cannabis by a regulatory system that would make it legally available under license or through a government monopoly of distribution. Two possible alternative bases of jurisdiction have to be considered: The trade and commerce power" and the general power, or "peace, order and good government" clause.12
The federal government has had to rely on its criminal law power as the basis of its food and drug legislation because of the limited nature of its power to regulate trade and commerce. The trade and commerce power would at first sight seem to be the logical basis for a licensing system to regulate the distribution and use of drugs which have to be made legally available for' medical or non-medical purposes. But this power has been restricted by judicial decision to interprovincial and international trade and commerce. Transactions which take place wholly within a province fall, as a general rule, under provincial jurisdiction. Exceptionly, the federal government may regulate intraprovincial transactions if such regulation is necessarily incidental to the effective regulation of extraproviacial trade and commerce. The case that would have to be made for a comprehensive federal drug regulation based on the trade and commerce power would be that Parliament cannot effectively regulate the extraprovincial trade in drugs without controlling intraprovincial transactions as well, or that the trade in drugs must be considered as a whole to be interprovincial and international in character. It is highly unlikely that this would be accepted by the courts. The regulation of local transactions at retail is not necessaryto the regulation of the trade in its extraprovincial aspects, as the regulation of certain local operations, such as delivery of grain to elevators for intraprovincial consumption, has been held to be necessary to the effective regulation of the extraprovincial grain trade.
The other possible basis for the federal jurisdiction to regulate the use of drugs is the general power. A matter falls within the general power if it does not fall within provincial jurisdiction or within the specific heads of federal jurisdiction. It has also been held that a matter originally under provincial jurisdiction may acquire such national importance as to bring it under the general power. There have been several examples of the first application of the general power, but virtually none of the second outside of a state of national emergency. In the first category are such matters as aeronautics, radio, atomic energy and the national capital development. They are not considered to be matters which at one time were under provincial jurisdiction but subsequently changed in relative importance; they are deemed to have always been matters of national concern. In the second category are the cases holding wartime emergency legislation to be valid on the basis of the general power. Such legislation clearly dealt with matters normally within provincial jurisdiction, such as the fixing of prices and wages. Attempts in peacetime, in some cases in a period of economic depression, to justify federal legislation on the basis of the general power in such fields as labour relations,"' industrial standards," marketing and restraint of trade," have all failed. The regulation of these matters within the provinces, a non-criminal law aspect. was held to fall within provincial jurisdiction with respect to property and civil rights. They were held not to be matters of national importance for purposes of the general power. In deciding the cases the courts applied what has come to be known as the "emergency doctrine" of the general power that it can be applied to matters normally of provincial jurisdiction only to meet some emergency. Examples suggested have been war (or similar national ernergency, such as insurrection) and pestilence. Economic depression has not been considered a sufficient emergency.
In two leading cases the federal Parliament was held to have jurisdiction, in virtue of the general power, to suppress the traffic in liquor, and it was suggested that it would have the same power with respect to the drug traffic, bult a closer examination of these cases, and other related decisions, leads to the conclusion that all that was contemplated in effect was a criminal law "ercise of' the general power. In the first of these cases-Russell v. The Queen 24 the Privy Council held a federal liquor prohibition statute to be valid on the basis of the general power but the language clearly indicates that they saw it essentiality as a measure of criminal law. Indeed, the criminal law power was sufficient to support the legislation, and it was unnecessary to invoke the general power in other than its criminal law aspect. The essence or the federal statute was the prohibition of conduct with penal consequences. Speaking of laws having a criminal law purpose, the Privy Council said:
This was the way in which the relationship between the specific heads of federal jurisdiction and the general power was originally conceived: the specific heads were thought of merely as examples or aspects of the general power. What seems to have happened in the Russell case is that counsel who challenged the validity of the federal legislation conceded that if the matter to which it related did not fall under provincial jurisdiction then it could be deemed to fall under the general power of Parliament. Having found that it did not fall under provincial jurisdiction, the Privy Council did not concern itself particularly with the specific head of federal jurisdiction to which it should be related.
In the Canada Temperance Federation case, some sixty-four years later, the Privy Council reaffirmed the general power as the basis for the Canada Temperance Act, and cited the suppression of the drug traffic as a matter for which Parliament could probably invoke the general power, but the whole history of judicial decisions on the subject raises a very serious doubt as to whether it is the general power in other than a criminal law aspect that can be relied upon. The issue is not whether the drug traffic can be prohibited with penal consequences like the liquor traffic. Obviously it can. The issue is whether there is a more comprehensive basis of federal jurisdiction for legislating in relation to non-medical drug use than the criminal law powerone that would Support the full range of legislative options. When we speak of the general power we think of the full scope of legislative power which Parliament considers to be necessary to effect its purposes, such as that which it has been held to possess in time of war or other national emergency. The real issue is whether Parliament has the constitutional basis for the introduction of legislative controls for which the criminal law power cannot be invoked.
Within a few years of the Russell case the Privy Council rendered two decisions concerning jurisdiction to regulate the sale of liquor by a system of licensing. In Hodge v. The Queen they held that the provinces had the power to introduce such a system of regulation, and two years later in the unreported McCarthy Act decision they held that the federal Parliament did not. The implications of this second decision are that Parliament does not have true general power with respect to liquor legislation. The McCarthy Act provided for a licensing system to operate in municipalities according to local option, Subsequent judicial references to the McCarthy Act decision have indicated that the Privy Council's reason forjudgement was that the federal act was considered to be an attempt to regulate trade and commerce within the provinces.
The McCarthy Act clearly showed a concern with restrictions on availability in the form of limitations on the number of licenses, and on days, hours and places of sale and consumption. It also contained prohibitions against sale to minors and against adulteration. And, of course, it prohibited all unauthorized sale. It is difficult to see why it could not have been supported on the same basis as that on which federal legislation to control the quality and availability of harmful substances rests today. There would seem to be a contradiction between upholding federal liquor prohibition in the Russell case, on the ground of a general power to suppress the distribution of an injurious substance, and denying a similar power in the McCarthy Act decision to control the availability of this substance by a system of licensing. The McCarthy Act seems to have been regarded, not as an alternative system of controlling an injurious substance, but as an ordinary regulation of trade and commerce within the provinces. It may be that the Privy Council had regarded the "evil" of the liquor traffic in the Russell case, not so much as a matter of danger to health as a matter of morality. In any event, the impression is that the Privy Council's perception of the liquor problem had changed radically in the intervening years. There are two explanations which suggest themselves: first, they had previously had to consider a provincial liquor licensing scheme in the Hodge case, and having affirmed this, they could not see how they could reasonably recognize a comparable federal jurisdiction; and secondly, because of the somewhat vague reference to the general power in the Russell case (which, as we have suggested, was not a true general power at all), they had not really focused on the full implications of the criminal law power as a general basis for federal control of dangerous substances, including control by licensing. The fact is that the federal criminal law power was not properly considered in the liquor cases, either as a basis for federal regulatory legislation or as an obstacle to provincial liquor prohibition. (Among the early decisions was one affirming provincial jurisdiction to prohibit the liquor traffic as a "local evil" in the province.") The issues were argued more from a trade and commerce perspective. The head of federal jurisdiction around which the discussion mainly turned was regulation of trade and commerce under section 91(2) of the British North America Act.
The decision in the McCarthy Act case raises a question as to whether Parliament could validly introduce a licensing system to allow a controlled availability for non-medical purposes of a substance that has hitherto been completely prohibited. It is difficult to see why it should be distinguishable from the licensing of drugs for medical purposes. The issue must be whether the legislative purpose is control of a harmful substance for the protection of health or whether it is simply a regulation of trade and commerce for revenue and other non-criminal purposes. The issue is that which was presented in the Margarine case 21 where a federal prohibition of the manufacture and sale of margarine in the provinces was held to be invalid as a colourable use of the criminal law power. The purpose was not to protect the public health from a dangerous substance, since margarine was admitted to be a harmless substance, but to protect the dairy farmers from the competition of substitutes for butter. It was an attempt to regulate trade and commerce within the provinces-a matter which, as we have said, falls within exclusive provincial legislative jurisdiction, except to the extent that it can be shown in a particular case to be necessary to the effective exercise of federal jurisdiction with respect to extraprovincial trade and commerce. In a change from complete prohibition to legal availability through license or government monopoly the issue of validity-insofar as the criminal law power is concerned-would turn on whether the substance to be made available would continue to be regarded as a harmful substance for which controls are necessary. If it were, then there should be no reason, notwithstanding the McCarthy Act decision, why a federal system of distribution by licensing should not be valid. A federal monopoly of production and distribution might tend to obscure the legislative purposes somewhat, as suggesting an attempt to secure a trade monopoly for revenue purposes, but a good case could be made for government monopoly as an added safeguard in the control of quality and availability of a harmful substance. However, the McCarthy Act decision and the issue in the Margarine case were the reasons we raised a question in the Interim Report as to the validity of a federal system of distribution of cannabis, involving government monopoly, particularly if cannabis were to be made available on the basis of a judgement as to relative absence of potential for harm.
It is because of this doubt, however, that it is necessary to return to the possibility of the general power (as distinct from the criminal law power) as a possible basis for federal legislation in relation to non-medical drug use. In several decisions rejecting the general power as a basis for federal legislation, the Privy Council attempted to rationalize its decision in the Russell case by the suggestion that the consumption of liquor must be presumed to have been regarded as a national emergency. Later, in the Canada Temperance Federation case, the Privy Council abandoned this view of the matter, holding that the test of whether a.matter falls within the general power is not the existence of an emergency, although that may be the occasion for the legislation, but whether "it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole...... But the examples given were aeronautics and radio, which, as suggested above, must be considered to have always been matters of national concern. Thus, the Canada Temperance Federation case, in which much hope has been placed for a broader application of the general power, does not really throw light on the circumstances in which a matter normally under provincial jurisdiction might be considered to have changed in character sufficiently to come within the general power. It does suggest, however, that the drug traffic may be regarded as such a matter quite apart from the notion of emergency.
The case that would have to be made in favour of the general power is that non-medical drug use has changed in character and become a matter of overriding national concern. This may appear to be so obvious to the layman' as to make him wonder how a court could fail to agree. There are, however many matters falling to some extent under provincial jurisdiction which could be regarded as matters of national concern. If all matters of widespread concern to Canadians are to be deemed to fall under the plenary legislative jurisdiction of Parliament then we should soon have little left in the way of provincial jurisdiction. If non-medical drug use has been considered in the past to be a provincial matter, apart from the criminal law power, then we should have to ask when it changed in scope so as to become a matter of overriding national concern and when, if ever, it would be likely to cease to have this character. A declaration in the present circumstances that it has this character might be tantamount to affirming that it has always had it. A persuasive case could no doubt be made that non-medical drug use has so changed in character as to come under the general power, and the courts could be expected to pay great respect to a solemn declaration by Parliament that it had now become a matter, not merely of national concern, but of national emergency. But the appropriateness of such a declaration would depend on the legislative purpose to be served and the nature of the particular non-medical drug use to which it was directed. It is difficult to see how such a declaration would be appropriate to support federal legislation to make cannabis legally available under license or through government monopoly. The misuse of alcohol remains the most serious non-medical drug use problem in Canada; yet it is inconceivable that Parliament would consider declaring it a national emergency in order to assert a general jurisdiction beyond that which it can assert on the basis of the criminal law power.
JURISDICTION WITH RESPECT TO HEALTH
This view of the possibility of the general power as a basis for legislation of a non-criminal law nature in relation to non-medical drug use is reinforced by the view which has generally been taken of the distribution of jurisdiction with respect to public health. There has been some expression of judicial opinion that the general or residuary jurisdiction with respect to health rests with Parliament, on the basis of the general power, -but the weight of opinion, and the assumption on which governments have acted, is that it rests with the provinces. It is recognized, however, that Parliament may invoke the general power to cope with real emergencies.
Two important functions in respect of health are treatment and quarantine. In . each case the general jurisdiction would appear to be provincial. The primary jurisdiction with respect to medical treatment lies with the provinces by virtue of section 92(7) of the British North America Act which confers upon provincial legislatures exclusive jurisdiction with respect to "The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals". The federal jurisdiction with respect to the establishment of treatment facilities is a restricted one. The only express power is section 91(1), which gives Parliament jurisdiction with respect to "Quarantine and the Establishment and Maintenance of Marine Hospitals". In addition, Parhament may establish and manage treatment facilities in other areas of federal concern, such as the armed forces, the Indian population on reservations, the prison population in federal institutions, and immigration.
It is necessary to distinguish between the regulatory jurisdiction with respect to hospitals and other treatment facilities which, as a general rule, lies with the provinces, and the capacity of the federal government, through the exercise of its spending power, to provide financial assistance for the establishment of such facilities in the provinces. The use of the federal spending power in areas beyond federal legislativejurisdiction is a controversial issueas a matter of policy, but it has not yet been ruled to be constitutionally invalid. By this device the federal government may impose conditions upon grants of financial assistance which will assure the implementation of certain policies and standards.
Federal jurisdiction with respect to "Quarantine and the Establishment and Maintenance of Marine Hospitals in virtue of section 91(11) of the BNA Act has not been the subject of much judicial commentary. Most of this commentary has been unnecessary to the decision of the cases, but it has tended to affirm a general provincial jurisdiction on the subject of quarantine. The most reasonable interpretation to apply to the word "quarantine" in section 92(11 ) is that it refers to port of entry or ship's quarantine. This results from its juxtaposition with the subject of marine hospitals and the fact that it falls in the sequence of specific heads of jurisdiction dealing with what might collectively be described as maritime matters: "9. Beacons, Buoys, Lighthouses, and Sable Island; 10. Navigation and Shipping; 11. Quarantine and the Establishment and Maintenance of Marine Hospitals; 12. Sea Coast and Inland Fisheries; 13. Ferries between a Province and any British or Foreign Country or between two Provinces...... It would be highly incongruous to insert a general power of quarantine in this grouping of subject matters. Moreover, if, as the weight of opinion seems to indicate, the general jurisdiction with respect to public health lies with the provinces, it would be a serious qualification of that jurisdiction to deny it a general power of quarantine. We seem to have a case, similar to that of the federal power to regulate trade and commerce, where it is necessary to read a qualification into an apparently unqualified term in order to reconcile it with the legitimate requirements of provincial jurisdiction.
Whether the federal government has a true general power in relation to non-medical drug use, and the scope of the federal power with respect to matters of health, are particularly relevant in view of the non-penal alternatives suggested by article 22 of the Convention on Psychotropic Substances. 197 1, which provides:
It is clearly established that the provinces have jurisdiction to provide for civil commitment or compulsory treatment. There is legislation for the involuntary confinement of mentally disordered persons in all of the provinces. The statement of the grounds for such confinement varies but generally speaking it is that the patient suffers mental disorder in such a degree that hos italization is re uired "for his own protection or welfare or that of others" or "in the interest of' his own safety or the safety of' others." There is also legislative provision in some provinces for the compulsory treatment of' drug dependent persons, including alcoholics, either under the mental health legislation or some special statute. The constitutional basis for compulsory treatment legislation in the provinces would appear to be section 92(7) ofthe BNA Act respecting the establishment of hospitals and asylums, section 92(l 3) respecting property and civil rights, including questions of incapacity and the protection of incapables, and section 92(16) which covers the residual provincial jurisdiction with respect to matters of health.
In the absence of a true general power with respect to non-medical drug use or a general jurisdiction with respect to matters of health, federal power to provide for compulsory treatment must be grounded on the criminal law power. On this issue the Special Committee of the Senate on the Traffic in Narcotic Drugs, reporting in 1955, expressed itself as follows:
In spite of this, Parliament provided for the compulsory treatment of drug offenders in Part II of the Narcotic Control Act in 1961. However, this part of the Act has never been put into force by proclamation. Whether this is because of doubts about the constitutional validity of these provisions or the failure to develop suitable treatment methods and facilities or later reservations by the government as to the advisability of compulsory treatment in principle, or some combination of these, is not clear. In any event, the provisions of Part II of the Act do provide a convenient framework for consideration of the jurisdiction of the federal Parliament with respect to compulsory treatment based on the criminal law power.
Part II provides for two kinds of special disposition of persons convicted of offences under the Act: preventive detention for an indeterminate period in a penitentiary and sentence to custody for treatment for an indeterminate period in an institution operated under the federal penitentiary system.
Preventive detention would apply in the case of a conviction for trafficking, possession for the purpose of trafficking or illegal importing or exporting. Where a person was convicted of one of these offences. and had previously been convicted at least once of such an offence, or had been previously sentenced to preventive detention under Part II, the court would be obliged to sentence such person to preventive detention.
The Criminal Code provisions for preventive detention of' habitual criminals and dangerous sexual offenders, although challenged on the ground that they inflict punishment for a status or condition and that they impose "cruel and unusual punishment" in violation of the Canadian Bill of Rights, have been held to be constitutionally valid. This makes it probable. although not inevitable, that the provision for preventive detention in Part II of the Narcotic Control Act would also be held to be valid. However, since the provision makes the sentence mandatory and leaves the court without the discretion which it has under the Criminal Code provisions, a stronger case could be made against its validity on the ground of cruel and unusual punishment. The sentence could be called for in some very questionable circumstances, for example, a second offence of marginal trafficking in cannabis.
The sentence to custody for treatment in Part II of the Narcotic Control Act is clearly regarded by the legislation as something different from preventive detention, although the effect may be similar, so presumably its constitutional validity is not automatically disposed of by the arguments applicable to the latter. It has a voluntary aspect, in that it may be ordered pursuant to an application by the accused or his counsel, but it may also be ordered upon application by counsel for the Crown. For this reason we shall refer to it as compulsory treatment. It applies not only in the case of a conviction for any of the offences for which preventive detention is to be ordered, but also in the case of conviction for simple possession under the Narcotic Control Act. The condition is not a previous conviction of any of these offences, as in the case of preventive detention, but the fact of being a "narcotic addict". This expression is defined in the Act to mean a person "who through the use of narcotics ... has developed a desire or need to continue to take a narcotic, or ... has developed a psychological or physical dependence upon the effect of a narcotic." Thus a person who was convicted of simple possession of cannabis for the first time could, theoretically at least, be sentenced to custody for treatment for an indeterminate period if the court found that he had developed a desire to continue to take cannabis. Moreover, under the provisions as presently worded, a person could be sentenced to custody for treatment for addiction to a drug different from the one involved in the offence of which he was convicted. Thus there might be little or no connection between the offence and the condition justifying the sentence.
In other respects the legislation has obviously been framed to suggest as close a connection as possible with the criminal law process, The order of commitment for compulsory treatment is called a "sentence" to suggest the criminal law disposition of a case. It is to be "in lieu of any other sentence that might be imposed for the offence of which he was convicted." The legislation makes criminal conviction a prior condition, and does not attempt to provide for compulsory treatment as an alternative to further prosecution, which would make it independent of guilt or innocence. The court may order that the accused be examined for addiction while a charge is pending, but a sentence to custody for treatment is to be imposed only if he is convicted. A person under such sentence would come under the jurisdiction of the federal penitentiary and parole systems. He would be deemed to be an "inmate" within the meaning of the Parole Act and subject to release and supervision in accordance with that act.
While these provisions strongly suggest that Parliament considered its jurisdiction with respect to compulsory treatment (to the extent that it existed at all) to be limited to criminal cases, the legislation contemplates federal provincial agreements whereby the federal penal authorities could acquire custody of' narcotic addicts who had not been charged with an offence but who had been committed for compulsory treatment under provincial legislation. Under such an agreement a province would make use of the federal penitentiary and parole systems for the confinement, release and supervision of persons so committed. Part II provides (as does complementary provincial legislation") that persons committed under the provincial legislation would be deemed, for purposes of the federal penitentiary and parole systems, to have been sentenced to custody for treatment under Part II.
If compulsory treatment is to fall within the criminal law power it must be seen either as a valid disposition of a criminal law case or as an aspect of Parliament's jurisdiction to legislate for the prevention of crime. To be valid as a criminal law disposition it would seem that a disposition must be reasonably related to the issue of criminal responsibility. There is no doubt that Parliament may validly confer on the courts a wide range of discretion as to disposition. This includes suspended sentence and probation, and it could also include absolute and conditional discharge, which would even preclude conviction. It would seem that the essential thing is that there must be a prohibition of conduct with provisions for penalty, and a disposition of the case that is reasonably related to a finding as to criminal responsibility. This is the case with confinement under the provisions of the Criminal Code of a person who is found to be unfit to stand trial or is acquitted on account of insanity. The condition for which he is confined is directly related to the issue of criminal responsibility.
As it presently stands in Part II, the sentence to custody for treatment would not appear to be so related. The sentence might be imposed for addiction to a drug other than that involved in the offence for which the accused was convicted. Certainly there would be a bona fide criminal law offence, charge and conviction, and some disposition would be called for. But the provision concerning preventive detention shows that confinement for an indeterminate period is not contemplated as an appropriate disposition for a case of first offence under the Narcotic Control Act, and in any event not for the offence of simple possession. Thus the sentence to custody for treatment must be in consideration of the condition of addiction rather than the offence of which the accused has been convicted. When an offence that is punishable by imprisonment for a maximum of seven years is the occasion of a "sentence" for an indeterminate period, based on the fact of addiction, then it is doubtful if such sentence can be said to be reasonably related to the issue of criminal responsibility.
There is no doubt that federal inmates may be validly exposed to medical treatment in the course of their confinement, but the coercive aspect of compulsory treatment is the confinement; it is that which is intended to have the compelling influence, and to force the inmate to accept the treatment that Is available, if there is any. Involuntary confinement, actual or threatened, is of the essence of compulsory treatment. You cannot have compulsory treatment without it, and it cannot, therefore, be considered to have been imposed to serve some purpose of criminal law disposition, such as deterrence, isolation or rehabilitation. In the case of imprisonment, it is rehabilitation qua criminal that is sought. not the cure of a medical condition. At the end of his term the offender must be released, whether he is actually rehabilitated or not. Confinement for an indeterminate period for the treatment of addiction implies that the addict will not be released until he is deemed to be cured. His criminal propensities are neither here nor there; it is his medical condition that is in issue.
Now it may be said that the two are closely related; that addiction will compel the addict to engage in the crime of unauthorized possession Of narcotics and in the crime of theft and trafficking to support his habit. From this it may be argued that compulsory treatment is a measure for the prevention of crime. Certainly, the federal criminal law power includes a preventive as well as a remedial jurisdiction." Can compulsory treatment be regarded as a valid exercise of the preventive aspect of the criminal law power?
Clearly, there must be some reasonable limits to the scope of this jurisdiction; otherwise, Parliament could invoke the criminal law power to legislate in relation to a great variety of social conditions which have some bearing on crime. The prevention, it is submitted, must be directed to a more or less specific danger of criminal acts. This is the case with preventive detention of habitual criminals and dangerous sexual offenders, a bond to keep the peace, and orders not to commit a specific offence in the future. It is also the case with juvenile delinquency legislation which, while admittedly a very broad exercise of the preventive criminal law jurisdiction of Parliament," does turn on the notion of an offence and responsibility for specific violations of law.
In the case of addiction we would be inferring the probability of future criminal acts, not from a history of criminality as in the preventive detention cases, or a threat of criminal acts, as in the bond to keep the peace, but from the compulsive nature of the medical condition. By making it impossible for the addict to obtain the drug legally we compel him to resort to criminal acts, and then we say that his addiction is the cause of his crime. The prohibitions against trafficking and illegal possession are not for some economic purpose, such as the regulation of trade and commerce, but precisely to prevent the harm caused by the non-medical use of opiate narcotics, including the harm of addiction. This is the criminal law means of attempting to prevent this harm. The addiction itself is not the crime. It is submitted that the compulsory medical treatment of addiction must be regarded as a non-criminal law means of dealing with this harm.
Thus while compulsory treatment may have the consequential effect of preventing or reducing crime it is directed to the elimination of a medical condition rather than the deterrence of crime. The cure of addiction does not assure that a person will not engage in trafficking or casual use. Neither of these depend on addiction. The confinement does have the effect of preventing crime, but as we have suggested above, the confinement must be seen as the means of compelling acceptance of treatment rather than prevention of crime. Otherwise. it is indistinguishable from preventive detention and should be justified as such. on a clear showing of prior and present criminality, and serious danger to the public.
The general conclusion that we draw from this analysis is that it is doubtful if the compulsory treatment of' addiction is sufficiently related to specific issues of criminal responsibility, either preventively or remedially, to be capable of being grounded jurisdictionally on the criminal law power. If there is a federal jurisdiction to provide for compulsory treatment of addiction it ought logically to exist as a general one, independent of the criminal law power, or not at all. If there is a federal power to provide for compulsory treatment of addiction in order to prevent crime then there ought logically to be a federal power to provide for the compulsory treatment of psychopathic conditions which may lead to crime. It is perhaps significant that Parliament has not attempted to disguise the preventive detention of the habitual criminal or the dangerous sexual offender as compulsory treatment, although their condition may be one which calls for treatment.
We do not deny that there is a persuasive argument to be made for compulsory treatment as a measure for the prevention of crime; all we say is that its implications carry us beyond the criminal law power. It is on a par with other legislative initiatives which may remove conditions, personal or social, which are conducive to crime. Nor do we deny that Parliament may validly provide medical treatment for the criminal offender, to which he may be more or less compulsorily exposed by virtue of his confinement. We merely say that such treatment is not really related to the issue of criminal responsibility so as to form a true part of the disposition of the case. The possible exception is where the addiction can be shown to be directly related to the crime of which he is convicted (as in the case of the simple possession of a drug to which he is addicted). Then the case may be said to be analogous to one in which the accused is acquitted on the ground of insanity. If that is to be the case then we should say whe' we mean: we should make a finding of addiction the alternative to a finding of criminal responsibility. It should be noted that the Supreme Court of the United States has held that it is unconstitutional to make addiction a crime on the ground that it is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the American Constitution. American civil commitment statutes some times expressly provide that civil commitment which is ordered while a charge is pending is not a criminal conviction. On a similar view of the matter the "sentence" to custody for treatment in Part II would have to be considered to be a non-punitive commitment for compulsory treatment in lieu of the punishment which might have been imposed in respect of the offence for which the addict was convicted. The more we attempt to relate compulsory treatment to the criminal law power the more we are obliged to regard it as what many of its critics contend it is imprisonment under another name.
The provision in Part II of the Narcotic Control Act and provincial legislation declaring a non-criminal addict committed for treatment under provincial law to be deemed to be under sentence to custody for treatment, and therefore an inmate within the meaning of the Parole Act. would appear to be of doubtful validity. A province may validly provide for compulsory treatment of narcotic addicts, and as a general rule may validly use federal administrative agencies and institutions for the implementation of its legislation, but it is doubtful if either the federal Parliament or the provincial legislatures can validly impose upon a narcotic addict who has not been convicted of a narcotic offence the status of an inmate for purposes of the Parole Act. There would appear to be a significant difference between the delegation that is contemplated here and that which has been permitted to facilitate the application of uniform rules and the avoidance of administrative duplication in the fields of natural products marketing and highway transportation." Here there is a qualitative difference in the nature of the legislative and administrative impact on each side of the jurisdictional division. There is an attempt to give a criminal character to a civil status without any bona tide criminal law basis for it. The enabling provision may be necessary to authorize the federal authorities to deal with the addict, but it effects a change of status which neither legislature can validly impose.
Thus there is considerable doubt about the scope of federal jurisdiction to provide for compulsory measures of treatment, education, after-care, rehabilitation and social reintegration as an alternative to conviction or punishment or in addition thereto. This policy option, suggested by the Convention on Psychotropic Substances, 1971, would appear, on constitutional and practical grounds to be open only to the provinces because of their jurisdiction and practical involvement with respect to such matters. Such a policy development involves a shift in constitutional emphasis from federal to provincial jurisdiction. We do not deny that there is considerable scope for a variety of dispositions of an essentially non-punitive nature in criminal cases, but as we have attempted to show in the discussion of compulsory treatment, there is considerable difficulty, and probably serious disadvantages, in attempting to relate a public health approach to issues of criminal responsibility. This the federal government is obliged to do if it attempts to develop a public health model for dealing with the non-medical user of drugs without a clear basis in the general power for such an approach.
In considering whether Parliament should have legislative jurisdiction to provide for compulsory measures of treatment or indoctrination in lieu of criminal law conviction, the courts might well be influenced by the fact that there is an international agreement contemplating such a policy. But the law at present is that an international agreement does not add anything to the legislative jurisdiction which Parliament otherwise has under the BNA Act. The federal government has the executive power to make international agreements on behalf of Canada, but it may not in a particular case have the full legislative power required to implement an agreement by suitable dornestic legislation. Such power may lie wholly or partly with the provincial legislatures. The federal government does not increase its legislative power by entering into an international agreement. That power continues to be determined by the normal distribution of legislative jurisdiction under the Canathan constitution. Thus, where the implementation of a proposed international agreement will require provincial legislative action, the agreernent ought logically to be preceded by federal-provincial consultation. Canada fulfils its obligations under an international agreement if it implements the agreement by appropriate legislative and administrative action, whether it be federal or provincial.
PROVINCIAL POWER TO CREATE PENAL OFFENCES
We must now consider whether there is a provincial jurisdiction to make conduct related to non-medical drug use a punishable offence. For example, if the federal Parliament were to repeal its prohibition of the simple possession of a particular drug, could the provinces validly enact such a prohibition?
The provincial power, in virtue of section 92(15) of the BNA Act, to impose penalties (including imprisonment) for the violation of provincial laws can only be invoked if the province has the jurisdiction under some other head in section 92 to legislate in relation to a particular subject matter. The provincial penal jurisdiction is an ancillary power that is used to give effect to legislation that is valid under some other head of provincial jurisdiction. The provinces do not possess a primary and independent power, such as the federal criminal law power, to prohibit conduct with penal consequences. Such prohibition must be related to some other head of jurisdiction in section 92.
The federal criminal law power permits Parliament to select any conduct for criminal law prohibition. whether or not Parliament could otherwise exercise a regulatory jurisdiction with respect to such conduct. For example, Parliament can prohibit certain conduct in the field of highway traffic, such as dangerous and impaired driving, although it does not have the power to regulate highway traffic. There is one limitation on the exercise of the federal criminal law power: it must not be a mere pretense or "colourable" use to usurp a provincial jurisdiction. It must be used for a true criminal law purpose and not for a legislative purpose that lies outside federal jurisdiction. An example of a colourable use of the criminal law power was the federal attempt to prohibit the manufacture and sale of margarine in the provinces, referred to above. The courts have not attempted to draw an exhaustive list of valid criminal law concerns. They have recognized that the criminal law is an expanding field, and that Parliament must be able to create new crimes. It was said in the Margarine case that public peace, order, security, health and morality were "the ordinary though not exclusive ends" served by the criminal law.
There may be both federal and provincial penal provisions in a particular field of activity. Where valid federal and provincial legislative provisions come into conflict the federal legislation prevails. The provincial legislation is rendered inoperative to the extent of such conflict.
To what extent can the provinces, in the absence of conflicting federal legislation, validly attach penal consequences to conduct in the field of nonmedical drug use? There are precedents in the field of liquor control which appear to afford a basis for such jurisdiction, but they require careful examination. The provinces clearly have the jurisdiction to regulate the distribution and possession of liquor, and they can make it an offence to distribute or possess liquor except as permitted by the regulatory legislation which they enact. Such a legislative approach is similar to that reflected by the Narcotic Control Act and the Food and Drugs Act. Liquor is made available upon certain conditions and in a certain manner, and any other dealing in it is prohibited. But the provinces may go further; the courts have held that they may prohibit the distribution of liquor altogether. It is this jurisdiction that is most relevant to the consideration of' whether the provinces could prohibit the conduct involved in other non-medical drug use.
The constitutional basis of provincial liquor prohibition, as articulated in the cases, is somewhat ambiguous. The provincial suppression of the liquor traffic has been justified as the abatement or prevention of a "local evil", resting on provincial jurisdiction with respect to matters of a merely local or private nature in the province under section 92(16) of the BNA Act. It is not clear what was contemplated as the "evil" in the distribution and consumption of liquor but the language used in the cases is strongly suggestive of morality.
If provincial liquor prohibition is to be considered as a penal suppression of conduct on the ground of public morality then it must, in the light of later decisions, be considered to be a constitutional anomaly, as we suggested in the Interim Report. The Supreme Court of Canada has clearly rejected the notion of "local evil" as a basis for provincial legislation of a criminal law character, and other decisions have made it plain that the provinces do not have a jurisdiction to create penal offences for the enforcement of morality.
It has been suggested, however, that the provinces can validly prohibit the conduct involved in non-medical drug use as an aspect of provincial jurisdiction with respect to health, and provincial liquor prohibition could be reconciled with this view of the matter. The few cases on the point are conflicting and reflect the doubt on the issue which we expressed in the Interim Report. There must obviously be a provincial jurisdiction to prohibit certain conduct with penal consequences in order to protect public health. Otherwise there can be no effective provincial regulatory jurisdiction with respect to health. The fields of sanitation and infectious disease are typical examples where there must be this power. In the intention behind the criminal law suppression of conduct in relation to non-medical drug use there is, however, a blend of legislative purposes. There is undeniably a bona fide health concern, but there is also a public morality concern. When non-medical drug use is spoken of as an "evil" there is concern not only for the effect on the health of individuals but also concern for the effect on the general tone and capacity of the society-for harm that is not strictly a matter of health. This is a concern for public morals for the effect of non-medical drug use on character. Are the courts not obliged to assign this dual purpose to provincial attempts to prohibit such conduct, however they may be couched in the form of health legislation? This is the basis for doubt as to provincial jurisdiction to mak e conduct related to non-medical drug use a punishable offence. The problems to determine the dominant legislative purpose which gives the legislation its true nature and character.
We have now come to the conclusion that such a jurisdiction can be justified as a protection of health, and as a practical matter can hardly be denied in view of the precedents in favour of provincial liquor prohibition.
These include the right to make public drunkenness an offence. Liquor prohibition must necessarily involve the right to prohibit any and all conduct involved in the distribution and use of liquor, and it is impossible to distinguish between provincial control of liquor and provincial control of other drugs as legislative concerns. They are both concerned with the effect of consumption on the individual and the community generally. Unless the courts are to say that a mistake was made in the liquor prohibition cases there seems to be no way of making a distinction between the two. The "local evil" spoken of in the liquor cases may be thought of as a matter of public morality but it may equally be thought of as a matter of injury to health. We have come to the conclusion that if provincial legislation is so framed as to clearly indicate a concern with the effect of non-medical drug use on the health of the individual it would have a valid provincial aspect notwithstanding that it might incidentally serve other purposes such as the prevention of social harm or the deleterious effects of drug use upon society generally.
JURISDICTION WITH RESPECT TO EDUCATION
Education falls within exclusive provincial jurisdiction under section 93 of the BNA Act. At the same time, a distinction must be made between education in the organized sense, involving formal instruction in educational institutions, and education in the broadest sense, including public education through a variety of media and facilities in which the federal government clearly has a role to play.
To the extent that drug education is to be furnished in the school system, it must be deemed to come within provincial jurisdiction. But there is nothing to prevent the federal government from contributing to drug education in the larger sense, outside the formal educational system, by a variety of informational programs making use of all the media of communication. It may also, of course, take a lead in the development of the necessary informational basis for provincial drug education programs and may indeed collaborate in the development of the educational materials for use in such programs.
The distinction drawn in the Interim Report between information and education was directed more to the nature of materials than to jurisdictional issues. The distinction was meant to emphasize that the processes and considerations which go into the development of sound information by research and evaluation may differ from those which go into the development of educational materials based on such information. The jurisdictional issue turns rather on the distinction between the organized educational system and activity of a general educational value outside that system. It would be utterly impracticable if every communication which might be deemed to be of an educational value were held to be a matter of exclusive provincial jurisdiction. At the same time there is obviously a domain in which the formal educational system may be extended by the use of audio-visual techniques. Such development raises a clear issue of provincial jurisdiction but it does not preclude federal activity of general educational value by similar means of communication.
LEGISLATION AND LAW ENFORCEMENT
Our legislative policy with respect to cannabis goes back to 1923. In the early 1920s public concern about non-medical drug use was stimulated by a series of articles written for Maclean's Magazine by Mrs. Emily Murphy, a police magistrate and judge of the Juvenile Court in Edmonton, Alberta, and later incorporated by her in a book entitled The Black Candle. She described ihe evils of drug use in somewhat sensational terms. The Chief of Police of Los Angeles was quoted as having made the following statement about marijuana:
It is thought that Mrs. Murphy's writings were probably responsible for the inclusion of marijuana in the Schedule to The Opium and Narcotic Drug Act in 1923. There was only passing reference to the subject in the debate and no discussion of the reasons for its inclusion. In any event, a decision was made in 1923, without any apparent scientific basis nor even any real sense of social urgency, to place cannabis on the same basis in the legislation as the opiate narcotics, such as heroin, and that is the way it has remained on the statute books ever since.
In 1955 the Special Senate Committee on the Traffic in Narcotic Drugs made the following observation on marijuana:
Over the years there was an increase from time to time in the severity of the penalties applicable to the narcotic offences, and this increase in severity was automatically applied to cannabis. In 1954 the maximum sentence for the offences of trafficking and possession for the purpose of trafficking was raised from seven to fourteen years and in 1961 to life imprisonment. In the early years, at least. the call for increased severity in the narcotic laws seems to have been inspired in some measure by anti-asiatic feeling. It is ironic that the severity which was originally seen as falling mainly upon persons ofAsiatic origin, should have fallen ultimately upon middle-class youth.AUTHORIZED DISTRIBUTION AND POSSESSION OF CANNABIS
Cannabis was formerly used to some extent for medical purposes in Canada, although there no longer appears to be any demand for permission to make it legally available for such purposes. It is not clear what the policy of the government would be if there was such a demand. Under the terms of the Single Convention on Narcotic Drugs, 1961, it could be made legally available for medical purposes, although it is included among the drugs in Schedule IV which the arties are invited to restrict to purposes of medical and scientific research. Federal law does not prevent doctors from prescribing cannabis for medical purposes if they can obtain a legal supply of it, but they cannot be in authorized possession of it unless they obtain it from a licensed source of supply,
The distribution and possession of cannabis is authorized under certain conditions, for purposes of research and drug analysis.
The Narcotic Control Regulations make provision for authorization to be given by the Minister to purchase, possess and administer cannabis for scientific purposes. Section 47 of the Regulations" provides as follows:
There are similar provisions under the Food and Drug Regulations for controlled drugs and restricted drugs. The Minister also has a discretion to authorize the cultivation of marijuana for scientific purposes.
Departmental procedures and policy with respect to approval of research, as well as our national policy with respect to the production of amnabis for scientific purposes, will be discussed in a subsequent report.
Section 47 of the Narcotic Control Regulations also makes provision for the delivery of cannabis and other drugs covered by the Act to authorized persons for purposes of identification or analysis. The authority is somewhat circumscribed. It permits a person who is under treatment by a doctor by reason of the use of drugs to deliver a drug to the doctor who in turn may deliver it for identification, or analysis, to a person who has been authorized for such p . urpose by the Minister. The delivery (although presumably not the possession) of the drug by the patient, and the possession and delivery of it by the doctor are protected by the regulation; but the same is not true of anyone else who may wish to deliver drugs for such purpose. This policy with respect to drug analysis is discussed in a subsequent report.
There is a further provision in the Regulations respecting lawful possession of cannabis. It is section 49, which reads as follows:
The precise scope of this provision is not too clear, but presumably it is intended to authorize possession in the course of law enforcement, authorized drug analysis and scientific research. Government personnel authorized to be in possession of cannabis would include analysts, appointed under the Food and Drugs Act, whose certificates make proof of the nature of a drug for purposes of prosecution.
PROHIBITIONS AND PENALTIES
Offences involving cannabis are indictable offences (with the option to proceed by way of summary conviction in a case of simple possession) and are subject, under the Narcotic Control Act, to the same penalties as offences involving the drugs which are true narcotics:
Importing or Exporting
Unauthorized importing is clearly regarded as the most serious offence under the Narcotic Control Act. It is the only offence under the Act which carries a mandatory minimum sentence. It was introduced into the law in 1961 pursuant to a recommendation by the Special Senate Committee of 1955, which clearly had the opiate narcotics in mind. It has presented the courts with serious difficulty, particularly in the case of young persons found to be importing cannabis. Because of the severity of the minimum sentence. it is understood to be the policy of federal prosecutors to proceed under this section only in serious cases involving significant quantities. (Under the Food and Drugs Act importing or exporting falls within the definition of trafficking and does not carry a minimum sentence.)
In 1971, there were 26 convictions for illegal importation or exportation of cannabis and only two convictions for illegal importation or exportation of heroin. Seventeen of the 26 convictions with respect to cannabis were in the age group from 21 to 24 years (Table A.9). Of the 28 convictions for illegal importation under the Narcotic Control Act in 1970, 25 were in Quebec. This is explained by the fact that Montreal is one of the chief ports of entry for smuggling in North America. In 1971, 22 out of 26 convictions for illegal importation under the Narcotic Control Act were for cannabis. Once again, the overwhelming majority were in Quebec, and the age distribution was rnuch the same as in 1970, with over 50% of the cases in the age group 2 1 -24 (Table A. 10).
To traffic under the Narcotic Control Act means to "manufacture, sell, give, administer, transport, send, deliver or distribute", or to "offer to do" any of these things without authority. For the offence of trafficking it is not necessary to show that the drug is actually a drug covered by the Schedule the Act. It sufficient that it be represented or held out to be such. It is not necessary to be in possession to be a trafficker. The offence of trafficking by offering to do so does not require actual possession of the drug which is offered. The purchaser from a trafficker is not guilty of the offence of rafficking.
Attempts have been made to extend the definition of trafficking by relying on the word "transport" in the definition, and arguing that any movement of the drug from one place to another is sufficient for trafficking. The courts have held that the word "transport", when read in the context of other words in the definition, cannot be applied to the movement of the drug by the accused for his own use. It has recently been held, however, that transporting for one's own use by an "innocent agent" amounts to trafficking.77
The statute expresses no distinction at all between qualitatively different kinds of trafficking, and the courts have not read any such distinction into the legislation. There is obviously a big difference between selling the drug for monetary consideration and giving it to a friend. Selling it at cost to an acquaintance is different from selling to a variety of people to make a profit. Selling it on a small scale to make a marginal profit-perhaps to support one's own use-is not the same as organizing and controlling a large entrepreneurial organization. As can be seen, trafficking activities range along a spectrum from a kind of act not far removed in seriousness from simple possession to the extensive activities of the stereotyped exploiter and profiteer whose image led to the kinds of penalties associated with trafficking. The legislature has left it to the courts to develop sentencing policies reflecting important differences. The range of' sentences for trafficking offences will be discussed in greater detail in the section of this Chapter on Sentencing Policy.
In 1970 there were 606 convictions for the offence of trafficking under the lVarcotic Control Act. Four hundred and forty-six of these were for trafficking in cannabis (Table A. 1). In 1971 there were 565 convictions for trafficking under the Act, of which 476 were for cannabis (Table A.2).
Possession for the Purpose Of Trafficking
Unlike the case of trafficking, where it is sufficient that the drug be represented or held out to be one which is included in the Schedule of the Act, it is necessary for the offence of possession for the purpose of trafficking that the accused actually be in possession of such a drug.
A certificate of an analyst designated under the Narcotic Control Act or the Food and Drugs Act is admissible in evidence as to the nature of a drug in any prosecution for offences under the Act." In order for such a certificate to be admissible the party intending to produce it must, before the trial, give the other party reasonable notice of such intention together with a copy of the certificate. The party against whom the certificate is produced may, with leave of the court, require the attendance of the analyst for purposes of crossexamination.
A case of session for the purpose of trafficking proceeds as if it were two trials. The law provides that if the accused does not plead guilty the trial shall proceed as if it were a prosecution for the offence of simple possession, and after the close of the case for the prosecution and after the accused has had an opportunity to make full answer and defense, the court shall make a finding as to whether or not the accused was in possession of cannabis contrary to the prohibition against simple possession. If the court finds that the accused was not in possession of cannabis contrary to that provision he shall be acquitted, but if it finds that he was in possession of cannabis contrary to that provision, he shall be given an opportunity of establishing that he was not in possession of cannabis for the purpose of trafficking, and thereafter the prosecutor shall be given an opportunity of adducing evidence to establish that the accused was in possession for the purpose of trafficking. If the accused establishes that he was not in possession of cannabis for the purpose of trafficking, he shall be acquitted of the offence as charged but he shall be convicted of the offence of simple possession and sentenced accordingly. If the accused fails to establish that he was not in possession of cannabis for the purpose of trafficking, he shall be convicted of that offence and sentenced accordingly.
This exceptional provision concerning the burden of proof is usually justified on the ground that it is ordinarily very difficult to prove the intention to traffic. In the absence of an admission, proof of such intention must be by way of inference from circumstantial evidence, such as the quantity of the drug discovered in the accused's possession.
There has been a serious question as to the precise nature of the burden placed upon the accused by this procedure and the extent to which it operates in practice as a departure from the traditional presumption of innocence. The courts have distinguished the secondary burden of adducing evidence of a particular fact from the primary burden of proving it when all the evidence is in." The primary burden is always on the Crown to establish all the elements of the crime by proof beyond a reasonable doubt. By the special procedure with respect to the offence of possession for the purpose of trafficking the Crown is relieved of the burden of adducing evidence of the intention to traffic. Proof of unauthorized possession is evidence from which a court may infer an intention to traffic. In effect, it raises a statutory presumption of such intention. The difficult question has been to determine what the accused must show to rebut this presumption and whether the burden which is cast upon him violates the right affirmed by the Canadian Bill of Rights to be presumed innocent until proved guilty according to law.
The issue has been the meaning to be given to the word "establish" in the provision "...if the accused establishes that he was not in possession of the narcotic for the purpose of trafficking, he shall be acquitted ... if the accused fails to establish that he was not in possession of the narcotic for the purpose of trafficking he shall be convicted The question has been whether it is sufficient for the accused to raise a reasonable doubt as to the intention to traffic or whether he must prove that he did not have such an intention by a preponderance of evidence or on a balance of probabilities. Until June 1971 the weight of the judicial authority was that it was sufficient for the accused to raise a reasonable doubt. In our Interim Report we expressed the law on the point as follows:
This statement was based on such decisions as Regina v. Hartley and McCallum,` in which Davey J.A. of the British Columbia Court of Appeal expressed himself as follows:
Later in the case of Regina v. Silk the same court expressed the view that to deprive the accused of the benefit of a reasonable doubt on the issue of the intent to traffic would be contrary to the presumption of innocence protected by the Canadian Bill of Rights. In other words, the Court held that the presumption of innocence is the right of the accused to be presumed innocent unless and until his guilt is proved beyond a reasonable doubt, and that this presumption necessarily carries the right to the benefit of a reasonable doubt on the issues of fact, whether it exists on the evidence offered by the Crown or whether it is raised by the evidence of the accused.
This would no longer appear to be the law as a result of the decision of the Supreme Court of Canada in Regina v. Appleby. There the Court was considering the statutory presumption created by section 237( 1 )(a) of the Criminal Code whereby an accused who is proved to have occupied the seat ordinarily occupied by the driver of a motor vehicle is "deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion", but the reasoning, at least of the majority in the case, would appear to be equally applicable to the burden of proof thrown upon the accused in a case of possession for the purpose of trafficking. Indeed, the Court considered the decisions with respect to the Narcotic Control Act and the Food and Drugs Act, including the Hartley and Silk cases. The Court held that the statutory presumption could not be rebutted by proof which merely raised a reasonable doubt; that a burden was placed on the accused to negate the presumption by a preponderance of evidence or proof which carried on a balance of probabilities. In other words, he has the burden of proof which applies in civil proceedings.
The essential basis of the decision was that the word "establishes" connotes a degree of proof beyond that which may be necessary to raise a reasonable doubt. The Court further held that placing such a burden upon the accused was not contrary to the presumption of innocence protected by the Canadian Bill of Rights. In Appleby the majority of the Court held in effect that the right to be presumed innocent until proved guilty according to law is not a right to be presumed innocent until proved guilty beyond a reasonable doubt. Laskin, J., in a special opinion concurring in the result arrived at by the other members of the Court, appeared to interpret the presumption of innocence in the Canadian Bill of Rights as including the right to the benefit of any reasonable doubt but then found that there was no conflict with this right in holding that it was insufficient for the accused who is faced with the statutory presumption of section 237 to raise a reasonable doubt. It should be noted that the United States Supreme Court has held that the right to the benefit of reasonable doubt is protected by the due process clause of the Constitution. Due process is also affirmed in the Canadian Bill of Rights, and the specific reference to the presumption of innocence is only a particular aspect of it. Due process does not appear to have been argued in the Appleby case.
On the basis of due process and the rational connection test which has been applied to the constitutionality of criminal statutory presumptions in the United States, it would be open to argue that the statutory presumption in the Narcotic Control Act is distinguishable from that in section 237 of the Criminal Code. It is reasonable to assume, however, that the conclusion of the Supreme Court in the Appleby case would be applied to the statutory burden of proof cast upon the accused in a prosecution for the offence of possession for the purpose of trafficking. The result of the case is that the burden is even heavier than we assumed when we expressed concern about it in the Interim Report. What it means is that the fact of intent to traffic is not to be governed by the ordinary rule concerning benefit of reasonable doubt. It is deemed to be proved beyond a reasonable doubt by proof of unauthorized possession, and it can only be negated by proof which carries on a balance of probabilities. If the evidence of the accused merely raises a reasonable doubt as to the intent to traffic he is not entitled to the benefit of that doubt.
In 1970 there were 399 convictions for possession for the purpose of' trafficking under the Narcotic Control Act, of which 356 were for cannabis (Table A. I ). In 1971 there were 602 such convictions of which 533 were for cannabis (Table A-2).
For the purpose of' the Narcotic Control Act, "possession" has the same treaning as it has under the Criminal Code where it is defined in section 3(4) as follows:
It has been held that there is no "minimal" amount required to establish the offence of simple possession, but an "infinitesimal" amount found in traces in the accused's clothing has been held insufficient for conviction. As in the case of possession for the purpose of trafficking the accused must be shown to have been in possession of a drug prohibited by the statute, and such proof is made in practice by an analyst's certificate. The accused must know that he has a prohibited drug in his possession. In other words, he must have the necessary intention or mens rea traditionally required for criminal responsibility. The burden is on the accused to prove any exception, exemption. excuse or qualification prescribed by law which operates in his favour for example, that his possession is authorized by the Act or Regulations. Where the accused is charged with being in constructive possession by virtue of the fact that another person has possession with his knowledge and consent, it is not sufficient to show mere acquiescence; it is necessary to show some kind of control` over a common venture regarding the drug.
In 1970 there were 5,657 convictions for the offence of simple possession under the Narcotic Control Act, of which 5,399 were for cannabis (Table A. I). In 1971 there were 8,840 such convictions, of which 8,3 89 were for cannabis (Table A.2). The details concerning sentences will be considered in the section of this Chapter on Sentencing Policy.
In 1970 there were 43 convictions for illegal cultivation of marijuana and 58 such convictions in 1 971 (Tables A. I and A.2).
The law makes no distinction between cultivation for purposes of trafficking and cultivation for one's personal use, and we have not found any reported decisions reflecting this distinction. It should be observed, however, that the offence is cultivation, or the deliberate growing of' cannabis plants, and not merely being in possession of them.
APPLICABLE PROVISIONS OF THE CRIMINAL CODE
Any matter concerning the offences created by the Narcotic Control Act and the Food and Drugs Act, which is not specially provided for in these statutes, is governed by the provisions of the Criminal Code" of Canada. These provisions relate to such matters as principles of criminal responsibility, parties to offences, attempts, conspiracies and accessories, jurisdiction and' procedure. Basically, what the special statutes do is to define the offence and provide the penalty. They also touch such matters as statutory presumption and burden of proof, as well as special provisions concerning methods of law enforcement. For the rest, the Criminal Code applies.
Certain offences created by the Criminal Code have a direct bearing on the suppression of conduct related to non-medical drug use. Probably the most important of these is conspiracy, to which it is generally necessary to resort in attempting to convict persons involved in trafficking at higher levels of organization. Since such persons are usually careful to have no direct contact with the substance in which the trafficking is being carried on, nor with the lower levels of the distribution system, it is rarely possible to discover them in the actual act of' trafficking or of possession for the purpose of trafficking. Conspiracy is generally a difficult case to make, often involving considerable time and expense.
The offences of obtaining by false pretense, forgery, and uttering a forged document are sometimes invoked in connection with attempts to obtain drugs illegally. There are also several offences covering conduct which involves injury or the threat of injury to third persons as a result of the use of drugs. There is the offence of murder by administering a stupefying or overpowering thing for the purpose of facilitating the commission or an offence or facilitating flight after committing or attempting to commit an offence, the offence of administering a noxious the offence of overcoming resistance to an offence by the administration of a drug, and the offences of administering a drug for the purpose of illicit intercourse and procuring an abortion. There is also the offence of driving a motor vehicle or having the care or control of it when the ability to drive is impaired by alcohol or any other drug.
It is a criminal offence to counsel, procure or incite another person to commit an offence, and this provision is applicable like other provisions of the Criminal Code to drug offences. If the offence is actually committed, the person who counsels or procures the other person becomes a party to the offence. There is the similar offence of aiding and abetting a person to commit an offence, which also makes the person who aids and abets a party to the offence.
JUVENILE DELINQUENCY LEGISLATION
A violation of' the drug laws is an act of juvenile delinquency under the Juvenile Delinquents Act, which defines a "juvenile delinquent" as follows:
The age limit for the application of the Juvenile Delinquents Act varies among the provinces from under sixteen in some to under eighteen in others. Where a child is over the age of fourteen and he is alleged to have committed an indictable offence the case may be transferred or "waived" from the juvenile court to the ordinary criminal court. Cases involving drug offences are transferred to the ordinary courts from time to time. Sometimes, however, the case is remitted to the juvenile court. The proposed Young offenders Act makes similar provision for the transfer of a case from the juvenile court to the ordinary criminal court.
The statistics of juvenile cases are not kept in a manner which permits them to be used as a reliable basis for estimating the number of cases involving drug offences which come before the juvenile courts. We know that there is a significant number of juveniles who are treated as delinquents by reason of drug offences, but there is no statistical basis for a reasonable estimate of the number.
SPECIAL METHODS OF ENFORCEMENT
The peculiar nature of drug crimes the fact that the people involved in them are consenting and co-operating parties, and there is rarely, if ever, a victim who has reason to complain, as in crimes against persons and property-makes enforcement of the drug laws very difficult. The police are rarely assisted by complainants. For the most part they have to make their own cases. Moreover, the activity involved in non-medical drug use is relatively easy to conceal. It can be carried on, by agreement of the parties involved, in places which are not easily observed by the police. Further, the substances and equipment involved are relatively easy to conceal or dispose of.
All of these difficulties have given rise to the development of unusual methods of enforcement. They are by no means confined in their application to the drug laws, but the combined effect of their use in connection with these laws has been one of the chief causes of concern about the impact of the criminal law in this field. The police admit the use of these methods in one degree or another, but they claim that they are absolutely essential to effective enforcement of the drug laws. Critics of these methods question their necessity but recognize the difficulty of challenging the professional opinion of the police on this point. Their chief contention is that these unusual methods represent a cost of enforcing the drug laws that is too great for the benefit derived from it. In particular, they say that the use of these methods has brought law enforcement into disrespect among young people, and has undermined respect for police and law generally. We shall comment on these issues in our conclusions and recommendations.
These unusual methods of enforcement are special powers of search and seizure, the use of force to effect entry to premises and to recover evidence. the use of undercover agents and informers, and the encouragement or provocation of drug offences.
Powers of Search and Seizure
Search of premises. Unless they have special statutory powers police can only search premises without a search warrant as an incident of arrest. Under the Narcotic Control Act and the Food and Drugs Act the police are empowered, without the necessity of a search warrant, to enter and search any place other than a dwelling-house in which they reasonably believe that there is a prohibited drug by means of or in respect of which an offence has been committed.
In order to be able to search a dwelling-house, other than as an incident of arrest, the police must obtain a search warrant from a justice., who must be satisfied upon an information under oath that there are reasonable grounds for believing that there is a prohibited drug by means of which an offence has been committed in the dwelling. The R.C.M. Police, however, may, and generally do, carry out such a search under the authority of a writ of assistance, which does not require them to establish such reasonable grounds for belief before a justice.
A writ of assistance is a general warrant that is not limited as to time or place and remains valid during the entire career of the law enforcement officer to whom it is issued. It is obtained upon application by the Minister of National Health and Welfare to a judge of the Federal Court. The judge has no discretion in the matter. It is mandatory that he issue the writ upon such an application. The writ empowers the officer named in it, with the assistance of such other persons as he may require, to enter any dwellinghouse at any time and search for prohibited drugs. In practice writs of assistance are issued under the drug laws only to officers of the R.C.M. Police.
In acting under a writ of assistance a police officer must reasonably believe that the dwelling-house contains a prohibited drug by means of or in respect of which an offence has been committed, but the grounds for his belief are not, as in the case of a search warrant, subject to review by a justice before he uses the writ. Officers who hold these writs are obliged, however, by the R.C.M. Police regulations to report on the use which they make of them, and they are subject to disciplinary measures for any apparent abuse of them.
The chief distinction between the search warrant and the writ of assistance is the convenience of the latter. It avoids what may in many cases be a crucial loss of time. In stressing the necessity of the writ of assistance the R.C.M. Police have stated that the conditions under which searches have to be carried out under the drug laws make it very difficult in practice to obtain search warrants. They have emphasized the mobility of drug offenders, the fact that they often do not have an identified address, and the fact that searches have to be carried out very often at night when it is difficult to obtain a warrant.
Other police claim to be at a disadvantage for lack of the writ of assistance, and this is one of the reasons they have often preferred to act with the R.C.M. Police.
Search of the person. As a general rule police only have the power to search the person as an incident of arrest, in order to discover anything which might serve as evidence of the crime for which the arrest is made, or to disarm the person arrested. Under the Narcotic Control Act and the food and Drugs Act the police are empowered, when searching any dwelling-house or other place, to search any person found therein. They are not obliged to make an arrest in order to carry out a search of the person.
Seizure. At common law a police officer has the power to seize anything uncovered in the course of a search of premises which may be evidence of the crime for which a person is arrested. When acting under a search warrant he is expressly authorized to seize and bring the thing for which the warrant has been issued before a justice. Under the Narcotic Control Act and the Food and Drugs Act there is an express power given to a police officer, when searching any dwelling-house or other place, to seize and take away any prohibited drug found in such place, anything in which he reasonably suspects such a drug to be contained or concealed, or any other thing by means of or in respect of which he reasonably believes an offence under the Act has been committed or that may be evidence of such an offence. This would include any motor vehicle by means of which an offence has been committed. The Act provides for forfeiture of things seized in the event of conviction. A person who has an interest in a motor vehicle which was seized but who was not in possession of it when it was seized or in any way responsible for its use to commit an offence may have his interest declared by a court. The vehicle is then returned to him or an amount equal to the value of his interest paid to him.
The Use of Force
The Acts provide that in carrying out a search a police officer may, with such assistance as he deems necessary, break open any door, window, lock, fastener, floor, wall, ceiling, compartment, plumbing fixture, box, container or any other thing.
The courts have also recognized that a police officer may use reasonable force upon the person to recover the prohibited substance. This is really an incident of the right to search the person. Such force is sometimes used to prevent heroin users from swallowing a supply of the drug which they have concealed in their mouth. In R. v. BrezacO"the Ontario Court of Appeal affirmed the legality of this practice and said:
The use of force by a policeman in an illegal search is an assault, and a person has a right under the Criminal Code to use such force as is necessary to resist such assault.
The Use of Undercover Agents and Informers
Because of the difficulty of detecting drug crimes the police rely heavily on undercover agents and informers. Undercover agents may have to engage in drug transactions in order to establish an identity or gain acceptance in the drug milieu. For this purpose they may purchase drugs in what the police call a "non-evidence buy", as distinct from a purchase to establish evidence against an offender. The R.C.M. Police and other police pay persons to give them information concerning drug offences or persuade them to give such information in return for enforcement concessions. This is considered to be a legitimate law enforcement practice. Since the police rarely receive complaints they are very dependent upon information obtained in this way. As one R.C.M. Police officer put it to a Commission investigator: "Information is our business." Individual officers spend a great deal of time developing their sources of information.
During the course of our inquiry there were public complaints that young people were being recruited by the police as informers. In some cases the police were accused of using the threat of prosecution to induce youths to act as informers. It has not been possible to verify the facts of these cases in a manner that would support specific charges, but the official position of the R.C.M. Police is that they do not approve of such practices.
The police claim that the use of undercover agents and informers not only assists in the detection of drug offences but helps to control drug availability by making it more hazardous to engaoe in trafficking.
Police Encouragement or Instigation of Offences
Undercover agents have engaged in a practice which has been disavowed by officials but which, if we are to judge from reported decisions, continues to be used. This is the practice of inducing a person to commit a violation of the drug laws. This is often referred to as acting as an agent provocateur. In the United States the practice is called "entrapment".
A common example is for an undercover agent to ask a person to sell or give him a prohibited drug. There were frequent complaints of this practice in the course of our public hearings although it was not possible to conduct the kind of full judicial inquiry that would be necessary to verify the facts in particular cases. The reported decisions, however, contain several examples of cases in which this practice has been used.
A distinction must be drawn between offering the occasion for the commission of a crime to a person who has already formed the intention of committing it, and inciting a person who has not yet formed such an intention to commit a crime in order to have the basis for prosecution against him. It is our impression from our inquiry that law enforcement officials at the senior level do not attempt to justify the second kind of case. They contend however, that the usual case is one in which an undercover agent buys from a person who is more than willing to sell.
As indicated in the section of this Chapter entitled Applicable Provisions of the Criminal Code, counselling and aiding and abetting a person to commit a criminal offence are themselves criminal offences. Apart from special statutory provision, law enforcement officers have no immunity from criminal liability on the ground of "public duty" for offences committed in the course of their functions. The extent, however, to which they may be held liable in practice is not clear. A court may take the view that when doing something for law enforcement purposes which would otherwise be an offence they do not have the necessary criminal intent for liability.
Police encouragement or instigation has not been recognized as a defence to a criminal charge in Canadian law. There is some precedent for ordering a stay of prosecution in such circumstances on the ground of an abuse of process, but a serious doubt has been raised as to whether this is a valid approach. Courts have, however, treated police provocation as ground for mitigation of sentence.
The American courts have developed the defence of "entrapment" as a basis for acquittal where the intention to commit the offence has been implanted by law enforcement officials."' The Canadian Committee on Corrections recommended the legislative adoption of a similar defence in Canada in favour of a person who does not have "a pre-existing intention to commit the offence."
DISCRETION EXERCISED BY POLICE AND PROSECUTORS
The Commission has attempted by certain kinds of investigation to develop an understanding of how discretion is exercised at the different stages of the criminal law process in the application of the drug laws. The material from which it draws its conclusions consists of the statistics concerning prosecution and disposition of drug cases in recent years, interviews with police and participant observation of the manner in which they enforce the law, interviews with prosecutors and defense counsel, and interviews with judges. The purpose of this study has been to determine the attitudes of' police, prosecutors and judges, how they see the nature and the difficulties of their task, and the manner in which they appear to be exercising the discretion that is open to them.
The state of government statistics on these matters leaves a great deal to be desired. They are particularly weak as a basis for attempting to identify the essential characteristics of the kinds of individuals, with respect to each drug, who are being put through the criminal law process. The basic problem is the ncompleteness of the information on these points, particularly the relatively large number in the "not stated" category.
There is still not an adequate statistical basis for a flow chart such as that which we included in Chapter Five of the Interim Report. In particular, we do not have reliable statistics to indicate the number of reports of alleged violations of the drug laws, in the different categories, which are brought to the attention of the police, the manner in which they are dealt with, and, in particular, the proportion in which there is a prosecution. How many cases known to the police are dealt with by warning or some other kind of intervention which does not involve the laying of a charge? We do not know. There is more data available for the various stages of the criminal law process, but here we encounter problems of incompleteness and inaccuracy in compilation.
The primary responsibility for enforcement of the drug laws in Canada has rested since 1920 with the R.C.M. Police. They work in close co-operation with the law enforcement authorities of other countries and with the International Criminal Police Organization (INTERPOL). They also work in close association with municipal police forces and to some extent with provincial police forces in provinces in which they do not act, under contract, as the provincial police. In the last year or two there has been a definite shift in emphasis in the distribution of responsibility between the R.C.M. Police and other police forces for enforcement of the drug laws. The R.C.M. Police have tended to concentrate increasingly on the enforcement of the laws against trafficking and to leave the main effort of enforcement against simple possession to the local police forces. At least, this is the pattern that is strongly suggested by the study that we have been able to make of the situation, and it is not denied by the R.C.M. Police. They do not have the manpower to give enforcement against trafficking the priority it requires and to make a serious effort against simple possession as well. Even the local police lack the necessary resources, and most of the cases of simple possession are discovered accidentally in the course of other law enforcement activity.
The prosecutions in federal drug cases are conducted by prosecutors appointed by the Attorney General of Canada. This is a long-established practice which operates by tacit agreement with the provinces. The Federal Government assumes responsibility for the prosecution in criminal matters governed primarily by special federal statutes rather than by the Criminal Code. In such matters, however, federal prosecutors conduct the cases, even where provisions of the Criminal Code may be involved, as, for example, in a case of conspiracy to traffic.
Provincial acquiescence in this federal role in the administration of criminal justice (which, apart from legislation with respect to procedure in criminal matters, falls within provincial jurisdiction) is explained by several factors: first, and foremost, the primary responsibility for law enforcement in these areas which has been assumed by the R.C.M. Police; the specialized expertise which the federal prosecutors have developed in these areas; and finally, the fact that the provincial law enforcement authorities have more than enough to look after with their primary responsibility for the application of the Criminal Code and provincial statutes of a penal nature. In any event, the federal assumption of responsibility for prosecution in these special areas of the criminal law has never been seriously challenged. The province could undertake prosecutions in these areas, but even where provincial or municipal police forces initiate drug cases, their policy is to refer them to the federal prosecutors. Although there is evidence of a shift in responsibility for the offence of simple possession from the R.C.M. Police to the municipal police forces, there is not a corresponding shift in the responsibility for prosecution.
To provide for the necessary legal services in these special areas of the criminal law and in the civil cases in which the federal Crown must be represented, the federal Department of Justice maintains regional offices in the cities of Montreal, Toronto, Edmonton, Winnipeg and Vancouver. In areas which cannot be served under these offices standing agents are appointed by the Department where the volume of business warrants it. In other cases, ad hoc appointments are made.
By means of policy directives from Ottawa and the organization of the regional offices an effort is made to ensure a measure of consistency and uniformity in prosecution. The office in Ottawa exercises a general control with respect to the discretion that is open to prosecutors, and the directors of the Regional Offices exercise a close control over daily operations. The main objective of the regional offices is to dispatch an increasing case load as efficiently as possible. The federal prosecutors have, generally speaking, acquired a good reputation for professional standards and fairness. They have tried to deal in an even-handed way in a controversial field of law where there a strong body of opinion opposed to certain aspects of the law and its enforcement. Because of the very controversial nature of their work, the approach of the prosecutors to the exercise of discretion is a cautious one. They are very conscious of the possible abuse of discretion.
Another important consideration affecting the exercise of discretion by federal prosecutors in the drug field is the dominant role played by the police, and particularly the R.C.M. Police, in the initiation and direction of cases. The federal prosecutors work very closely with the police in these cases, and make few decisions without their approval.
The decision as to whether a charge should be laid. This is a decision as to whether there is to be a prosecution at all, and as to the nature of the charge on which it is to be based. Outside the Montreal region, this decision is usually taken by the police without prior consultation with the prosecutors, but in the Montreal region it is customary for the police to consult the prosecutors first. The difference in practice is thought to be due to the difference in the volume of cases which has to be handled in the different regional offices. Looking at drug prosecutions in Canada as a whole, it may be said that the police play the dominant role in the decision as to whether to prosecute and as to the charge to be laid. However, prosecutors have an Opportunity to review the appropriateness of the charge after it has been laid and to correct any errors which may have been made. They may withdraw a case if they are of the opinion that there is not sufficient evidence to support it. Withdrawal of a charge is a decision over which regional directors exercise close supervision.
The decision as to whether to proceed by indictment or summary conviction. The distinction between indictable offences and summary offence's is basically one of relative seriousness, which is reflected in the range of penalties. When the Crown is given the option to proceed by indictment or summary convictiOn it is really given the option to decide how seriously it wishes to treat the Offence. An important consequence of' the distinction between indictable Offences and summary offences is that the Identification of Criminals Act, which provides for fingerprinting and photographing and the keeping of luch records in a central registry, applies to persons accused or convicted of indictable offences. Federal legislation which provides for the option has been held by the Supreme Court of Canada not to be in violation of the right to equality before the law which is affirmed by the Canadian Bill of Rights.
The option has existed since August 1 969 in cases of simple possession under the Narcotic Control Act, and it exists in all cases under Parts III and IV of the Food and Drugs Act, but the discretion of prosecutors with respect to It is circumscribed by policy directive from senior officials of the Department of Justice in Ottawa. In July 1969, when Bill S-15 creating this option was pending, the Department issued the following "general rules" to determine how it should be applied in cases of simple possession:
The directive pointed out that these were general instructions only; that provision would be made for exceptional cases; but that consistency and uniformity of enforcement would be ensured by prior consultation with designated officials in Ottawa. The chief cases in which discretion to depart from these rules has been exercised is where the accused has a previous criminal record. In practice, the prosecutors in the main metropolitan areas have been permitted, because of their experience, to exercise discretion in exceptional cases without consultation with the departmental officials in Ottawa.
Other areas in which prosecutors exercise discretion are the scheduling of cases, representations as to bail, reduction of charges or counts in exchange for a plea of guilty and negotiations and representations as to sentences. It is more difficult to generalize about the practice on these matters since there appears to be considerable variation. In several of these areas of discretion, as in others, the police appear to play a very influential role.
General. Sentencing practices in drug cases are characterized by a wid . e disparity across Canada. Not only is this clear from reported decisions, but It is conclusively demonstrated by answers to questions which were put to judges in research conducted for the Commission. The purpose of this research was to determine judicial perceptions of the drug phenomenon.
In the summer of 1970 approximately seventy judges were interviewed following a standardized interview guide which was derived out of a number of pilot interviews held with judges in Ontario. The interviews lasted from between one and one-half to two and one-half hours. Only a few judges among those who were contacted refused to be interviewed. The population from which the sample was drawn consisted of all judges who had dealt with a significant number of drug cases within the past two years at both the trial and appellate levels. Random sampling techniques were not deemed necessary nor practical as it was possible to identify in each judicial division those judges who have had some experience in drug cases. The judges omitted from the sample included those who dealt with less than five drug cases (if suitable replacements were available) and those who were away on holiday or otherwise unavailable during the time in which the interviews were conducted.
The judges were asked to rank the following problems in order of relative seriousness: threat of war, unemployment, student unrest, pollution, drug abuse, housing shortage, sexual immorality, juvenile delinquency, marital breakdown, and organized crime. There was great variation in their answers but based on the mean response to each problem, the order of relative seriousness (from most serious to least serious) in which the judges ranked these problems was: 1.drug abuse; 2. organized crime; 3. juvenile delinquency; 4. unemployment; 5. marital breakdown; 6. pollution; 7. housing shortage; 8. student unrest; 9. sexual immorality; 10. threat of war.
Each judge was asked to rank twenty criminal offences, including six drug offences in order of relative seriousness. Again there was great variation in the answers but on the basis of mean response, the twenty crimes were ranked in order of seriousness (from most serious to least serious) as follows: 1. trafficking in heroin; 2. armed robbery; 3. trafficking in LSD; 4. breaking and entering; 5. trafficking in marijuana; 6. possession of heroin; 7. assault causing bodily harm; 8. indecent assault; 9. procuring a female person; 10. theft over $50; 11. false pretence over $50; 12. possession of LSD; 13. dangerous driving; 14. gross indecency; 15. malicious damage; 16. possession of marijuana; 17. theft under $50; 18. common assault; 19. causing disturbance; 20. vagrancy.
Three factors seem to distinguish punitive and non-punitive responses to interviews. The first is one of social distance between the judge and the drug offender coming before him. Judges and magistrates with strong links in the community and some understanding of the social circumstances of drug users arising from personal contacts with street level agencies tend to take a more tolerant view of drug use which is reflected in the sentencing behaviour. This may help to explain the data which show a sharp difference between appeal and trial judges in sentencing philosophy. Most appeal judges tend to support a deterrent philosophy and are somewhat more punitive in their general Outlook. In some provinces a real struggle appears to have been taking place between trial and appeal judges. Crown appeals from sentences have generally been upheld in these provinces. It is clear that appeal judges in most provinces have felt it necessary to lay down rather stern sentencing guidelines In drug cases. Appeal judges are much more isolated from the drug offender and social circumstances than lower court judges. Moreover, their experience tends to be based on a biased sample of cases coming before the courts. They tend to see the more serious cases.
The second factor relates to the nature and extent of previous experience in the criminal law field. Any kind of experience at the criminal bar was associated with a more lenient sentencing policy. It was interesting to note that judges who had previously acted as Crown attorneys tended to be more lenient than judges with no previous criminal law experience whatsoever. Among judges with some previous experience at the criminal bar, however, those who acted primarily as defence counsel were more lenient than those who had acted primarily as Crown attorneys.
The third factor relates to the length of exposure to drug cases as a judge. The data show an apparent progression from punitive to less punitive behaviour as the judge becomes more familiar with drug cases. Moreover, it is noticeable that the sophistication of sentences tends to increase as experience builds up.
Judges were asked in what circumstances they would choose a fine in sentencing an offender. They suggested fines most frequently where the offender had no previous record. It was mentioned almost as often that fines were limited to possession cases. Other important considerations were the youth of the offender, whether "soft" drugs were used, and whether or not the offender could pay the fine himself.
Probation was recommended most often for an offender who needs supervision or for a first offender. Also mentioned frequently were cases of simple possession and cases where soft drugs were involved, counselling was needed, or the offender was a student or employed. Also mentioned were cases where the offender is unlikely to repeat or has a family commitment.
Imprisonment in a provincial institution (a sentence of less than two years) was recommended most often in cases where trafficking was involved or the offender had a previous record. Judges also mentioned frequently that they were forced to give a prison sentence because of a court of appeal decision relevant to the case. Prison was also suggested for hard drug cases or cases where others were harmed. It would appear from the judges' responses that general deterrence is most often the objective in sentencing an offender to the penitentiary (a sentence of two years or more).
Judges were asked what three pieces of information they would like to know about the offender when sentencing in a drug case. These were listed in order of importance. Criminal record appeared most often as a first choiceFamily record was mentioned most often as a second and third choice. Employment and school records were also chosen frequently as second choiceInformation concerning religious affiliation, church attendance and friends and associates appeared as third choice.
The majority of judges asked for a pre-sentence report, at least most of the time, and a majority found them helpful.
The practice differs in various jurisdictions as to whether judges expect Crown counsel to speak to sentence. It is thought by some judges to be a usurpation of the judicial function; by others it is thought to be the duty of the Crown.
Each judge was also asked whether he requested recommendations from probation officers as to sentence in drug cases. Thirteen answered by an unqualified yes. Seventeen stated that they did but that they only received recommendations as to probation. Twenty-two replied in the negative. Most of the judges considered the probation officers' recommendations at least "somewhat helpful". Twenty-one judges gave no answer to this question.
Fifteen hypothetical cases were put to the judges and magistrates to determine the sentences they would give. The answers revealed a very great disparity in sentencing. The range of sentences in each case is shown in Table 6. The total amount of imprisonment given for all the cases combined ran from a low of four years to a high of 47 years. Sophistication in judicial response increased with the experience of the judge. Complex combination sentences-for example, fines plus probation, institution plus probationtended to be characteristic of the experienced judges.
The scale of seriousness attached to the case depended primarily on the type of drug concerned and whether the case was one of trafficking or simple possession. Drugs tended to be rated from highest to lowest in the following order: heroin, amphetamines, LSD and other hallucinogens, hashish and marijuana. Judges operating with a simple set of rules tended to make a rigid distinction between trafficking and possession. More experienced judges would draw distinctions among trafficking cases depending upon the amount of the drug, the relationship between seller and purchaser, and the motive for sale. An important secondary factor concerned the existence and length of a previous criminal record. It appeared that the record was always considered but only after an assessment had been made of the current offence. Some judges tended to minimize the significance of a record, feeling that it was their task simply to sentence for the current offence.
Sentences in cases of simple possession of cannabis. The statistics for the years 1967 to 1971 inclusive show a marked change in the judicial policy with respect to simple possession of cannabis, which began as one of severity in the interests of general deterrence. The courts held that severity with respect to simple possession was necessary in order to discourage the development of an illegal market. "If use of this drug is not stopped," said the British Columbia Court of Appeal, "it is going to be followed by an organized marketing system."
The most striking fact that emerges from the statistics is the increased use of fines. In 1967 and 1968, one per cent of all dispositions were fines. This increased in 1969 to 17.6%, in 1970, to 68.2%, and in 1971 to 77%.
There has been a corresponding decrease in the use of imprisonment. In 1967, 46% of those convicted were sentenced to imprisonment; in 1968 46.3%; in 1969 - 33.9%; in 1970 10%; and in 1971 - 7%.
In 1970, a total of 544 persons were imprisoned for the offence of simple Possession of cannabis (Table A.3). Over 75% of the sentences were for less than six months and over 93% were under two years. A note on the statistics For 1970 released by the Division of Narcotic Control [now the Bureau of Dangerous Drugs], of the Department of National Health and Welfare reads as follows:
In 1971, a total of 5 70 persons were imprisoned for the offence of simple possession of cannabis (Table AA). Over 80% of the sentences were for less than six months and over 97% were under two years.
Hypothetical cases 1, 5, 6 and II were for simple possession of marijuana. (See Table 6.) Case I involved a 17-year-old male with a criminal record; case 5 a 26-year-old married man with no criminal record; case 6 a 26-year-old single man with a previous conviction for simple possession of cannabis and case I I a 17-year-old male with no criminal record. Even in the cases where there was no previous record there were some judges who would have imposed imprisonment.
Sentences in the case of trafficking and possession for the purpose of trafficking. Government statistics do not permit an analysis of sentences in cases of trafficking and possession for the purpose of trafficking in cannabis prior to 1970. During those years no distinction was made in the presentation of the statistics between cases involving cannabis and those involving other drugs under the Narcotic Control Act.
Of 436 convictions for trafficking in cannabis in 1970 (Table A.5), 102 were disposed of by fine, suspended sentence or probation, and 343 by terms of imprisonment ranging from under six months to between five and six years. Over 90% of the prison sentences were for periods of less than two years. The figures for 1971 (Table A.6) show a similar distribution of sentences: 110 cases disposed of by fine, probation or suspended sentences, and 366 by imprisonment for periods from under six months to between five and six years, with 341 or 93% of the cases under two years.
Of the 356 convictions for possession for the purpose of trafficking in 1970 (Table A.7), 82 were disposed of by fine, suspended sentence or probation and 274 by terms of imprisonment ranging from under six months to between five and six years. About 90% of the prison sentences were for periods under two years. The figures for 1971 (Table A.8) show a similar distribution of sentences: I 1 6 cases disposed of by fine, probation or suspended sentence and 4 1 7 by imprisonment for periods from under six months to between five and six years, with 366 or 88% of the cases of imprisonment under two years.
Hypothetical cases 2, 4 and 10 were for trafficking in marijuana. (See Table 6.) In all of these cases sentences of imprisonment predominated, with most judges choosing either six months or less, or between 12 and 18 months. There were, however, a significant number who chose a penitentiary sentence of two ears or more.
There does not appear to be any consistent pattern in the cases reflecti., significant differences in kinds of trafficking. At one time the courts attempted to single out a certain kind of trafficker for special treatment, but later abandoned the attempt. There are still cases of marginal trafficking which are treated with relative severity.
Sentences in cases of importing or exporting. Reference has been made to the implications of the mandatory sentence of seven years' imprisonment for this offence. In 1970, the sentences for this offence in cannabis cases were all between seven and eight years (Table A.9). In 1971, 16 of them were in this range and six fell into the category of 10 years and over (Table A. 10).
Sentences in cases of cultivation. In 1970, there were a total of 43 cases involving cultivation of cannabis.Twenty-seven of the cases were disposed of by fine, probation or suspended sentence, and the balance by imprisonment for periods of under six months to under three years, with the majority under six months (Table A.11). In 1971, there were 58 cases, of which 35 were disposed of by fine, probation or suspended sentence and the balance by imprisonment for periods of under six months to under four years. Almost all of them were under six months (Table A. 12).
1. The Single Convention on Narcotic Drugs was developed by the Commission on Narcotic Drugs pursuant to a direction from the Economic and Social Council in 1958. It was adopted and opened for signature in March 1961 at a United Nations plenipotentiary conference in which seventy-three states participated. Its general purpose was to replace the existing multi-national treaties in the field by a single system which would limit narcotic drugs to medical and scientific use. It came into force on December 13, 1964.
2. The Convention on Psychotropic Substances, 1971, was approved as a basis for international agreement at a plenipotentiary conference at which more than seventy states were represented in Vienna in February, 1971. Canada participated in the preparation of the Convention but, along with many other states, reserved her decision as to whether to become a party to it. States may become parties to the Convention by signing it, by ratifying it after signing it subject to ratification, or by acceding to it. The Convention was open for signature until January 1, 1972 and thereafter a state may become a party by accession.
3. Article 28, paragraph 3.
4. India made such a reservation on behalf of the protectorate of Sikkim.
5. Article 7.
6. Section 91(27) of the Canadian Constitution (the "British North America Act" which is usually referred to as the "BNA Act") confers exclusive jurisdiction upon the Parliament of Canada to make laws in relation to matters falling within the class of subjects described as "The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters."
7. Standard Sausage Co. v. Lee [19341 1 D.L.R. 706,  4 D.L.R. 501. See also Rex v. Perfection Creameries Ltd.  3 D.L.R. 185, affirming the validity on the basis of the federal criminal law power, of the prohibition against adulteration of butter in the federal Dairy Industry Act.
8. Revised Statutes of Canada 1970, Chap. F.-27. Part III of the Food and Drugs Act prohibits trafficking and possession for the purpose of trafficking in "controlled" drugs (barbiturates and amphetamines) and Part IN prohibits trafficking, possession for the purpose of trafficking and unauthorized simple possession of "restricted" drugs (LSD, and other strong hallucinogens-DET, DMT, STP(DOM), MDA, MMDA, and LBJ).
9. Revised Statutes of Canada 1970, Chap. N- 1.
10. ibid. l971 S.C.R. 5.
11. Section 91(2) of the BNA Act confers exclusive jurisdiction upon the Parliament of Canada to legislate in relation to matters which fall within the class of subjects described as "The Regulation of Trade and Commerce". As we shall see, the apparently unlimited scope of these words has been cut down by judicial interpretation, so that jurisdiction with respect to this subject is divided between the federal and provincial legislatures.
12. Section 91 of the BNA Act confers on the federal Parliament exclusive jurisdiction to make laws for the "Peace, Order and Good Government" of Canada in relation to matters not assigned to exclusive provincial jurisdiction. This is generally referred to as the "Peace, Order and Good Government" clause or the general power of' Parliament. And then "for greater certainty but not so as to restrict the Generality of the foregoing", it explicitly provides that exclusive federal legislative jurisdiction shall extend to all matters coming within the classes of subjects specified in an enumerated list. The numbered paragraphs in this list are usually referred to as subsections of section 91 or as "heads" of jurisdiction. Section 92 confers exclusive jurisdiction upon the provinces to make laws in relation to matters falling within the classes of subjects specified in an enumerated list. It does not contain an introductory or general grant of power in terms comparable to those of section 91, but head 16--Generally all Matters of a merely local or private Nature in the Province" is often referred to as the provincial residuary power.
13. Reference re Natural Products Marketing Act t 19361 S.C.R. 398, aff'd by [ 19371 A.C. 377.
14. The Queen v. Klassen, (1959) 20 D.R.R. (2d) 406.
15. In re Regulation and Control of Aeronautics in Canada  A.C. 54; Johannesson v. West St. Paul, [ 1952] S.C.R. 292.
16. In re Regulation and Control of Radio Communication, [ 1 932] A.C. 54. The full scope of federal jurisdiction with respect to radio and television is presently a matter of some controversy.
17. Pronto Uranium Mines Ltd. and Algom Uranium Mines Ltd. v. Ontario Labour Relations Board[ 1956] O.R. 862.
18. Munro v. National Capital Commission, [ 1966] S.C.R. 663.
19. Fort Frances Pulp & Power Co. Ltd. v. Manitoba Free Press Co. Ltd.,  A.C. 695; Co-operative Committee on Japanese Canadians v. A. -G. Can., [ 1947] A.C. 87 Reference re Validity of Wartime Leasehold Regulations, [ 1950] S.C.R. 124.
20. Toronto Electric Commissioners v. Snider, [ 1 92 5 ] A.C. 3 96.
21. A.-G. Can. v. A.-G. Ont. (Labour Conventionscase), A.C. 326.
22. A.-B.C. v. A.-G. Can. (NaturalProductsMarketingReference) A.C. 377.
23. Board of Commerce case, (I 922) 1 A.C. 19 1.
24. (I 882), 7 App. Cas. 829
25. A. -G. Ont. v. Canada Temperance Federation  A.C. 193.
26. (1883), 9 App. Cas. II 7.
27. The decision concerned the validity of the federal Liquor License Act, 1883 (46 Vic. c. 30, as amended by 47 Vic. c. 32). The decision of the Supreme Court of Canada is set out in the Schedule to 48 49 Vic. c. 74. Four of the five judges held that the Act was ultra vires except insofar as it related to vessel licenses and wholesale licenses that is, licenses which were not of a retail nature within the provinces. The fifth judge held that the Act was ultra vires in whole. The decision of the Privy Council holding the Act ultra vires is referred to in several subsequent decisions, including the following: A.-G. Can. v. A.-G. Alta. andA-G. B.C. 11916] 1 A.C. 588, per Viscount Haldane at pp. 595-597; Board of Commerce case, ( 1920), 60 S.C.R. 456 per Duff J., dissenting at pp. 494-497: Toronto Electric Commissioners v. Snider J 1925] A.C. 396 per Viscount Haldane at pp. 410-413; The Natural Products Marketing Reference [19361 S.C.R. 398 per Duff C. J. at pp. 409 411.
28. A.-G. Out. v. A.-G. ('an., 11896] A.C. 348 (usually referred to as the "Local Prohibition" case).
29. Reference as to the Validity of Section 5(a) of the Dairy Industry Act, ( 1949) S.C.R. 1, afrd by [ 195 1] A.C. 179.
30. Martin J. A. in Standard Sausage Co. Ltd. v. Lee, supra; Cross J., dissenting, in Rinfret v. Pope (1886) 12 Q.L.R. 303; Estey J. in Reference re Validity of Section 5(a) of the Dairy Industry Act, t 1 949] S.C. R. 1.
31. For example: Rinfret v. Pope, supra, in which the Quebec Court of Appeal held that public health legislation in each province, with the exception of the matters attributed to Parliament in section 92(I 1) of the BNA Act, fell within provincial jurisdiction; See also Re Shelly, ( 1913) 10 D.L.R. 666, holding regulations concerning the wrapping of bread to prevent the spread of infectious disease to fall within provincial jurisdiction.
32. See, for example, the following statement in the federal working paper, Income, Security and Social Services, which was presented to the fourth meeting of the Constitutional Conference on December 8, 1969: "Federal measures touching public health, such as pure food and drug enactments, represent a legitimate exercise of the criminal law power and, if necessary, the residuary power may be invoked to support federal legislation designed to cope with unusual hazards to public health. General legislative competence over health and welfare services, however, has been taken to reside at the provincial level."
33. Re George Bowack (I 892) 2 B.C.R. 216; The Canadian Pacific Navigation Co. v. The City of Vancouver (I 892) 2 B.C.R. 193; La Municipalite du Village St. Louis du Mile End v. La CW de Montreal (1885) 2 M.L.R. (S.C.) 218.
34. This was the assumption of the Rowell-Sirois Commission, and it was referred to without dissent in the working paper, Income Security and Social Services, supra. We have not been able to find any reported judicial decisions interpreting the scope of the word "quarantine" in section 91(11) of the BNA Act.
35. Fawcett v. A.-G. Ont., [ 19641 S.C.R. 625, affg [ 1964] 2 O.R. 399. See also R. v. Trapnell (1910) 22 O.L.R. 219 (Ont. C.A.); Green v. Livermore  22 O.R. 381.
36. The Senate of Canada: Proceedings of the Special Committee on the Traffic in Narcotic Drugs in Canada, Queen's Printer, 1955, xix.
37. Criminal Code, Part XXI. Brusch v. The Queen  1 S.C.R. 373; R. v. Neil  S.C.R. 685.
38. See Narcotic Addict Act of New Brunswick, 1961-62 Stat N.B. c.25.
39. Section 543.
40. Section 542.
41. See R. v. Trapnell (1910), 22 O.L.R. 2 19 (Ont. C.A.), per Meredith J. A. at P. 222.
42. Laskin, Canadian Constitutional Law, Revised 3rd ed. 1969, p. 852.
43. Section 745.
44. Goodyear Tire and Rubber Co. of Canada Ltd. el at. v. The Queen [ 1956] S.C.R. 303.
45. A.-G. B.C. v. Smith,  S.C.R. 702, upholding the validity of the Juvenile Delinquents Act, mainly on the ground that it was prevention of crime.
46. Robinson v. California, 370 U.S. 660.
47. Judicial decisions have affirmed the validity of the delegation by Parliament of administrative power to a provincial administrative authority, as distinct fron, the delegation of legislative power to the provincial legislature itself, which would be invalid. P.E.I. Potato Marketing Board v. H.B. Willis Inc. and A.-G. Can. [ 1952] 2 S.C.R. 392; Coughlin v. Ontario Highway Transport Board[ 19681 S.C.R. 569. The same principle would apply to delegation by a provincial legislature to a federal administrative authority.
48. A.-G. Can. v. A.-G. Ont. (Labour Conventions case), [ 1 937] A.C. 326.
49. In certain fields of activity, such as highway traffic, the courts have recognized the valid co-existence of somewhat similar or overlapping federal and provin. cial penal provisions. The federal provisions are enacted in virtue of the criminal law power, and the provincial provisions in virtue of provincial jurisdiction to regulate highway traffic. The courts would appear to be prepared to recognize the valid co-existence of virtually identical provisions so long as compliance with one does not involve violation of the other. See Mann v. The Queen  S.C.R. 238.
50. See Liquor Prohibition case, supra; also A.-G. Man. v. Manitoba Licence Holders'Association, [ 1 902] A.C. 73. See also R. v. Nat Bell Liquors Ltd.,  2 A.C. 128.
51. Switzman v. Elbling andA.-G. Que.,  S.C.R. 285, at pp. 305-306, 324.
52. With reference to gambling: Rex v. Lamontagne, [19451 O,R. 606; Johnson v. A.-G. Alta. (1954) S.C.R. 127,- Deware v. The Queen, 11954] S.C.R. 182: Regent Vending Machines Ltd. v. Alberta Vending Machines Ltd. and A.-G. Alta. (1956) 6 D.L.R. 548; with reference to censorship: Regina v. Board of Cinema Censors of Quebec, ex parte Montreal Newsdealers Supply Co. (1968), 69 D.L.R. (2d) 512; with reference to sexual morality: Rex v. Hayduk,  O.R.
53. In most of these cases there was federal legislation touching the subject matter, but the weight of judicial opinion that flows from them is that the provinces do not have a jurisdiction to suppress conduct in the interest of public morality.
53. Cf. Regina v. Snyder and Fletcher (1967) 61 W.W.R. 112 and 576 (Alta. C.A.) and Regina v. Simpson, Mack and Lewis (1969) 1 D.L.R. (3rd) 597, 1196913 C.C.C. 101 (B.C.C.A.), in which the Courts of Appeal of Alberta and British Columbia came to different conclusions concerning the validity of provisions in the provincial Health Acts prohibiting the simple possession of LSD at a time when it was not prohibited by federal law. The Alberta provision was held to be valid as legislation in relation to a matter of public health, and the British Columbia provision was held to be invalid as legislation in relation to a matter of criminal law.
54. Rex v. Osjorm  2 W.W.R. 703 (Alta. C.A.)
55. For other cases in which, as in Rex v. Osjorm, the primary purpose of the legislation was held to fall within provincial jurisdiction although it could be said to be also advancing a notion of public morality: Regina v, ff"ason ( 1890), 17 O.A.R. 221 at 241-242; Regina v. Fink  2 O.R. 132 at 135 137.
57. Ibid., p. 333.
58. 1923 Stat. Can., c. 22.
59. The Senate of Canada: Proceedings of the Special Committee on the Traffic in Narcotic Drugs in Canada, 1955, xii.
60. See, for example, House of Commons Debates, 1922, pp. 2824 and 3017.
61. As adopted by P.C. 1970-867, 12 May, 1970. SOR/70-205.
62. Narcotic Control Regulations, Section 46.
63. As amended by P.C. 1970-1910, 3 November, 1970. SOR/70-473. This part of the section reads as follows:
(3) Notwithstanding anything in these Regulations, a person under the professional treatment of a practitioner of medicine by reason of the use of a narcotic, or a controlled drug or a restricted drug within the meaning of the Food and Drugs Act, may give or deliver a narcotic that he has in his possession to that practitioner of medicine, and that practitioner of medicine shall forthwith
(4) A practitioner of medicine who has received a narcotic pursuant to subsection (3) shall be deemed to be in lawful possession of the narcotic.
64. Section 5.
65. Section 4(l).
66. Section 4(2).
67. Section 6.
68. Section 3.
69. Submissions of N.A. Chalmers and L-P Landry, Q.C., directors of regional offices, federal Department of Justice, at public hearing of Commission, Winnipeg, November, 1969. See also R v. Bosley & Duarte  1 C.C.C. 328 in which the Ontario Court of Appeal appears to have been influenced in raising a sentence for possession for the purpose of trafficking, by its opinion that the accused could have been convicted of importing if the Crown, in the exercise of its discretion, had not dropped that charge.
70. All statistics on convictions are furnished by the Chief, Division of Narcotic Control [now the Bureau of Dangerous Drugs] of the Department of National Health and Welfare.
71. Section 2. For a conviction for offering: R. v. Chernecki, 4 C.C.C. (2d) 556 (B.C.C.A.)
72. Section 4(l).
73. R. v. MacDonald; R. v. Vickers (I 963), 43 W.W.R. 238, (B.C.C.A.). See also R. v. Wells,  2 C.C.C. 279, in which the accused was convicted of trafficking for her aid to a distributor who actually passed the drugs to the buyers. She drew up a list of potential buyers, received their money, and checked their names off the list as they received their purchase.
74. R. v. Brown (1953-54), 17 C.R. 257 (B.C.C.A.).
75. R. v. Madigan, [ 1970] 1 C.C.C. 354 (Ont. C.A.).
76. R. v. MacDonald; R. v. Harrington andScosky(1964),41 C. R.75,43 W.W.R. 337  1 C.C.C. 189 (B.C.C.A.) R. v. Cushman, 5 C.R.N.S. 359 (B.C.C.A.); R. v. Pappin, 12 C.R.N.S. 287 (Ont. C.A.); Cf. R. v. Young, 2 C.C.C. 560 (B.C.C.A.), where transportation for the benefit of the accused, hi, wife, and a married couple who were friends was held to go beyond transports, tion for one's own use. The accused was convicted of possession for the purpose of trafficking.
77. R. v. MacFadden, [ 1 971] 5 C.C.C. (2d) 204 (N.B.C.A.).
78. Section 9.
79. As to the necessity of signature on the certificate: R. v. Richardson ( 1969), 68 W.W.R. 501 (B.C.C.A.), R. v. Blau 10 C.R.N.S. 65 (B.C. Prov. Ct.); R. v. Clark (I 969), 70 W.W.R. 399 (B.C.C.A.); as to accused's right to notice: A.-G. Can. v. Ross, 15 C.R.N.S. 71 (Que. C.A.); R. v. Bellrose, 15 C.R.N.S. 179; as to proof required of delivery to analyst: R. v. Dawdy and Lamoureaux, [ 1971], 3 O.R. 282 (Ont. C.A.).
80. Section 8.
81. In Section 3.
82. See R. v. Wilson (1954), 11 W.W.R. 282 (B.C.C.A.), but compare with R. v. Macdonald, R. v. Harrington and Scosky (1963), 43 W.W.R. 337 (B.C.C.A.). Other circumstantial evidence most commonly relied on are exhibits suggesting sale or distribution, such as containers, scales and measuring spoons, lists of names and telephone numbers, large amounts of cash in small denominations, and the like; and evidence of the accused's movements suggestive of contact for purposes other than his regular employment.
83. See R. v. Sharpe [ 196 1 ], O.W.N. 261, 131 C.C.C. 75 (Ont. C.A.) a case under the Opium and Narcotic Drug Act, the predecessor of the Narcotic Control Act.
84. Section 2(f).
85.  2 C.C.C. 183 (B.C.C.A.); See also R. v. Cappello 122 C.C.C. 342 (B.C.C.A.) and R. v. Hupe, Forsyth and Patterson 122 C.C.C. 346 (B.C.C.A.).
86.  3 C.C.C I (B.C.C.A.).
87. 3 C.C.C. (2d) 354 (S.C.C.).
88. Formerly Section 224A(l).
89. In re Winship, 397 U.S. 358 (1970).
90. Leary v. United States, 395 U.S. 6 (1968) at p. 36: "...a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary', and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend."
91. R. v. McLeod (I 955), 21 C.R. 137 (B.C.C.A.).
92. R. v. Ling (1954), 19 C.R. 173@ 109 C.C.C. 306 (Alta. S.C.); but compare Regina v. Quigley (1955), 20 C.R. 152; 1 1 1 C.C.C. 81 (Alta. C.A.), where it Was held that the only reasonable conclusion was that the amount found was the residue of a larger amount.
93. R. v. Beaver. 119571 S.C.R. 531, 118 C.C.C. 129; R. v. Peterson, I c.C.C. (2d) 197 (Alta. C.A.). R. v. Burgess,  3 C.C.C. 268 (Ont. C.A.) where it was held that it is sufficient that the accused know that he is in possession of a prohibited drug although he may not know which prohibited drug he has. See also R. v. Blondin, 2 C.C.C. (2d) 118 (B.C.C.A.), a case involving importing, in which it was held that there is sufficient mens rea if the accused is found to have "wilfully shut his eyes to what it was" if there can be inferred from this fact that he "suspected that it might be a narcotic."
94. Narcotic Control Act, s. 7.
95. R. v. Colvin and Gladhue (1943), 1 D.L.R. 20, 78 C.C.C. 282 (B.C.C.A.) R. v. Lavier, 129 C.C.C. 297 (Sask. C.A.); R. v. Harvey, 7 C.R.N.S. 183 (N.B.C.A.); R. v. Marshall (I 969), 3 C.C.C. 149 (Alta. C.A.); R. v. Dick and Malley (I 969), 68 W.W.R. 437 (B.C.C.A.).
96. What is required is control over the drug but this may presumably be inferred from control over the person or persons in actual possession of it. But cf. R. v. Bourne (I 970), 71 W.W.R. 385 (B.C.C.A.) following the judgement of Davey J.A. in R. v. Bunyon, 110 C.C.C. 119 (B.C.C.A.), that where there is not sufficient control to meet the test of joint possession under Section 3(4) (b) of the Criminal Code, the accused may be found guilty of having aided and abetted the offence of possession within the meaning of section 21( I) of the Criminal Code.
97. Revised Statutes of Canada, Chap. C-34.
98. Section 423.
99. Section 320.
100. Section 324.
101. Section 326.
102. Section 2 13.
103. Section 229.
104. Section 230.
105. Section 195.
106. Section 25 1.
107. Section 234.
108. Section 422.
109. See R. v. McCloud and Goeorgia Straight Publishing Ltd., 12 C.R.N.S. 193 (B.C.C.A.), in which a newspaper was convicted of counselling persons to cultivate marijuana.
110. Section 22.
110a Section 2 1.
111. Revised Statutes of Canada, Chap. J-3.
112. Section 9. For a discussion of the considerations governing the exercise of discretion to transfer a case of juvenile delinquency to the regular courts see Graham Parker, (I 970) 48 Can. Bar Rev. 336.
113. See, for example, R. v. Olafson (I 967), 68 W.W.R. 525 (B.C.C.A.), where it was held that a youth who was adjudged to be a juvenile delinquent by reason of unlawful possession of a prohibited drug and was transferred to the adult court and charged with unlawful possession under the Narcotic Control Act, could not raise the plea of autrcfois acquit. See also R. v. Gray ( 197 1) 3 W.W-R. (B.C.S.C.) where the defendant was accused of delinquency under the Juvenile Delinquents Act by reason of possession of marijuana. The Crown applied to have the defendant tried in the ordinary courts but that application was refused. The defendant then went before a juvenile court and pleaded guilty to the delinquency and was placed on probation. When he broke the terms of his probation he was once again brought before a juvenile court, whereupon the Crown applied, as before, that he be retried in the ordinary courts for the original delinquency, this time as an offence under the Narcotic Control Act. The juvenile court judge granted the application, and on appeal this was held to be a proper course under the Juvenile Delinquents Act. The court followed the Olafson decision.
114. See, for example, R. v. Martin, 9 C.R.N.S. 147 (Man. Q.B.), where a youth of sixteen, charged with trafficking in LSD, was ordered transferred from the juvenile court to the adult court, but the latter held that it was not in the interest of the juvenile or society to subject him to trial upon indictment in the adult court.
115. Bill C- 192.
116. Section 10(l).
117. Sections 37 and 45.
118. Narcotic ControlAct, s. 10(2).
119. Section 10(3).
120. Submission of R.C.M. Police to the Commission.
121. Section 10(l)(b).
122. Section 37( 1 )(a) and 45.
123. Section 10(l)(c).
124. Sections 37( 1)(c) and 45.
125. Section II.
126. Narcotic Control Act, s. 10(4).
127.  2 D.L.R. 265 at 270 (Ont. C.A.).
128. R. v. Larlham,  4 W.W.R. 304 (B.C.C.A.).
129. For example: R. v. Verge,  4 W.W.R. 116 (B.C.C.A.); R. v. Madigan  1 C.C.C. 354 (Ont. C.A.); R. v. Coughlin, exparteEvans,  3 C.C.C. 61 (Alta. S.C.); R. v. Shipley  3 C.C.C. 398 (Ont. Co. Ct.); R. v. Omerod (1969),6 C.R.N.S. 37 (Ont. C.A.).
130. See R. v. Omerod, (1969), 6 C.R.N.S. 37 (Ont. C.A.).
131. In R. v. Coughlin, ex parte Evans,  3 C.C.C. 61 (Alta, S.C.) a person sought unsuccessfully to bring a prosecution against a police constable fo . r aiding and abetting trafficking. He had been convicted of trafficking in marijuana on the evidence of the constable, who, acting as an undercover agenthad purchased the marijuana from him. The court held in effect that the constable was in no different position than any other purchaser, and that since purchase does not constitute trafficking it would defeat the purpose of the la"' to hold that it could amount to an aiding and abetting of trafficking. In effectthe court attached no importance to the particular purpose for which the purchase had been made.
132. For a discussion, without expression of opinion: R. v. Omerod, 6 C.R.N.S. 37 at 44-66; for obiter dicta that the defence does not exist in Canadian law Lemieux v. the Queen,  1 C.C.C. 187 at 190; R. v. ChernecAi, 4 C.C.C. (2d) 556 at 559 560.
133. In R. v. Shipley,  3 C.C.C. 398 (Ont. Co. Ct.), a case in which an undercover agent had persuaded a young person to obtain drugs for him, a judge of the County Court ordered a stay of prosecution on the ground that the court had an inherent power to prevent abuse of process. The court relied on the decision of the Ontario Court of Appeal in R. v. Osborn 5 C.R.N.S. 183. There the Court of Appeal had exercised an inherent jurisdiction to prevent a person from being prosecuted for an offence very similar to one of which he had been earlier acquitted. The decision of the Court of Appeal was unanimously reversed by the Supreme Court of Canada (12 C.R.N.S. 1), and the conviction restored. It is not clear from the opinions rendered in the Supreme Court whether the judges were of the opinion that there was no inherent jurisdiction to prevent abuse of criminal process or whether they simply felt that the facts did not show oppresssion in the particular case. At the very least, the judgement in Osborn leaves considerable doubt as to whether Shipley can stand as good law. But cf. R. v. Kowerchuk, 3 C.C.C. (2d) 291 (Prov. Ct.), which followed the view adopted by the Ontario Court of Appeal in Osborn as to an inherentjurisdiction to prevent abuse of process and ordered a stay of proceedings, although the case was not one of police instigation of an offence; also R. v. MacDonald, 15 C.R.N.S. 122 (B.C. Prov. Ct.) which dismissed a charge of trafficking on the ground of abuse of process because of instigation by an undercover agent.
134. R. v. Price, 12 C.R.N.S. 13 1 (Ont. C.A.).
135. Sorrells v. United States, 287 U.S. 435 (1932).
136. These requirements are often applied, however, in cases in which there is an option to proceed by indictment or summary conviction, since the offence is in fact an indictable offence, but the practice varies.
137. R. v. Smythe, 3 C.C.C. (2d) 366 (S.C.C.).
138. These interviews were conducted by Professor John Hogarth, who directed the Commission's project of empirical research into various aspects of law enforcement. They were confined to judges outside Quebec. There was a separate study of judicial attitudes in Quebec which will be referred to in a subsequent report.
139, For cases in which prison sentences have been imposed or increased on appeal: R. v. McNicol, 5 C.R.N.S. 242 (Man. C.A.); R. v. Lehrmann,  2 C.C.C. 198 (Alta. C.A.); R. v. Adelman, [ 19681 3 C.C.C. 3 1 1 (B.C.C.A.); R. v. Morrison, 11970] 2 C.C.C. 190 (Ont. C.A.); R. v. O'Connell,  4 C.C.C. 162 (P.E.I.C.A.): R. v. Cuzner,  5 C.C.C. 187 (Ont. C.A.); R. v. Dejong, I C.C.C. (2d) 235 (Sask. C.A.) R. v. Doyle and others, 2 C.C.C. (2d) 82 (Alta. C.A.). For cases in which sentences have been reduced on appeal: R. v. Vautour, [19701 1 C.C.C. 324 (N.B.C.A.); R. v. Doxen, [19701 3 C.C.C. 431 (Ont. C.A.).
140. R. v. Hartley and McCallum (No. 2),  2 C.C.C. 187 at 189 (B.C.C.A.).
141. R. v. Hudson,  2 O.R. 501 (Ont. C.A.).
142. R. v. Simpson,  2 O. R. 270 (Ont. C.A.).
143. R. v. Perrin,  14 C. R. N.S. 2 4 (Que. C.A.).
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