1. Introduction

The Canadian constitution limits the federal and provincial governments= legislative response to cannabis. In this paper we will examine the impact of these constitutional restrictions on the federal and provincial government's possible legal options. The following analysis is concerned exclusively with the constitutionality of various alternatives and not with their substantive merit or political appeal. We are examining what each level of government could do assuming its legislation was challenged. While this approach defines the possible alternatives, it suggests that such matters are usually litigated. However, many contentious constitutional issues are resolved through federal-provincial negotiations and cooperative legislation. The courts= tendency to uphold the constitutionality of legislation has provided further impetus to settle differences through discussion.

Before beginning the analysis of the various legislative alternatives, it is necessary to provide a summary of some basic principles of Canadian constitutional law. The rest of the paper is divided into two sections. In the first, we examine the federal and provincial governments' constitutional bases for cannabis legislation and the feasibility of cooperative federal-provincial control. The second section deals with specific aspects of federal legislative authority including Parliament's power to create non-criminal offences, to control the dissemination of criminal records in the hands of provincial officials, and to confiscate cannabis in the absence of a criminal offence of possession.

2. A Brief Introduction to Basic Principles of Canadian Constitutional Law

The primary document of the Canadian constitution is the British North America Act 1867, 30 & 31 Victoria, c. 3 (B.N.A. Act). That act together with its amendments, was and still is, an enactment of the Imperial Parliament of the United Kingdom. Among other things, the B.N.A. Act provides for a division of legislative powers between the federal and provincial governments C section 91 lists the exclusive heads of federal legislative power and section 92 lists the exclusive heads of provincial power. To determine a statute's constitutional validity, a court must establish whether or not the legislation is within the power of the enacting government. If the legislation is within the enacting body's constitutional competence, it is valid or intra vires and if it is beyond the enacting body's authority it is invalid or ultra vires.

In interpreting the B.N.A. Act, the court attempts to prevent either level of government from encroaching on the power of the other. There is in practice, if not in strict legal theory, however, a presumption of constitutional validity. In effect the court begins its inquiry by presuming the statute in question to be valid. The burden of proving otherwise is, therefore, on the party alleging invalidity. Where proper and possible the court will interpret an enactment in such a way as to make it valid. For example, if there are two alternative interpretations of an enactment, the court will adopt the one that brings it within the constitutional competence of the enacting body.¹

Basically the courts have adopted a three-step procedure for determining the validity of a statute. First the court identifies the statute's dominant feature or Amatter@ based primarily on its wording, purpose, effect, context, and legislative history. Merely reading a statute may not provide a true understanding of its matter. The term Acolourability@ is used to describe a situation in which the statute's language disguises its real nature. While the legislation appears valid, careful analysis indicates that its true matter falls within a head of power reserved for the other level of government. In such cases the doctrine of colourability is invoked and the legislation is held to be ultra vires.²

Once the court has determined the subject matter of the legislation, it must then define the scope of the relevant heads of power in sections 91 and 92. Since the sections are intended to provide an exclusive set of legislative powers and also overlap, they must be read contemporaneously. The scope of any head of power is limited by the scope of the others. This approach to interpreting sections 91 and 92 is referred to as the principle of Amutual modification.@

The heads of power are not defined, but rather are briefly described in broad, general terms. The ambit of a particular power must be pieced together from the judgments in various cases. Unfortunately, few cases raising constitutional issues concerning cannabis have been litigated. Even in areas where there is some relevant caselaw, the courts have tended to base their decisions on narrow technical grounds which do not permit the extraction of fundamental principles.

The final step in the process is to determine which head of power the subject matter of a statute comes within. An enactment may incidentally effect a particular power without coming within it. This Aancillary@ doctrine applies where the encroachment on the jurisdiction of the other level of government is necessarily incidental to the effective operation of the legislation in question. For example, a provincial statute may incidentally affect the federal power of banking s. 91(l5) but its matter may be within Aproperty and civil rights@ s. 92(l3).³ If the encroachment is not merely incidental, the legislation is said to be Atrenching@ on the power of other level of government and is ultra vires.

The power to legislate on a complex phenomenon such as non-medical drug use is unlikely to be exclusively federal or provincial. While some drug laws may fall exclusively within either federal or provincial jurisdiction, others may be within the legislative competence of both levels of government. There is concurrent responsibility for such legislation, and both levels of government could enact it. As we shall later discuss cannabis prohibition legislation may well be an example C the provinces could claim that a provincial prohibition was within their power over public health s. 92(16) and the federal government could justify their prohibition as a matter of criminal law s. 9(27). In such situations the law is said to have a Adouble aspect.@ In a classic statement of this doctrine, the court explained, Asubjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 9l.@⁴ If Parliament and the provinces enacted cannabis prohibitions that were incompatible, the resulting conflicts would be resolved by the doctrines of Aparamountcy@ and Aconcurrency@ C these principles will be examined later in the text.

Constitutional analysis is a speculative undertaking. Since legislation is given legal effect until it has been successfully challenged,⁵ constitutionally-suspect enactments may remain operative simply because other governments and private litigants have no interest in questioning them. Even if the legislation is challenged, predicting the outcome of constitutional litigation is difficult. While some boundaries of the federal and provincial legislative domain can be readily identified, many constitutional issues central to cannabis control are, and will likely remain, contentious.

3. Federal and Provincial Bases For Cannabis Control

Federal Jurisdiction

There are four heads of power which might be invoked in support of federal cannabis legislation: the criminal law power s. 91(27); the trade and commerce power s. 91(2); the general power in the preamble to section 91; and the treaty-implementing power s. 132.

The courts have broadly defined and applied Parliament's criminal law power. It encompasses legislation prohibiting conduct with penal consequences, provided the legislation serves a typically criminal public purpose. In In The Matter Of A Reference As To The Validity Of Section 5(A) Of The Dairy Industry Act, R.S.C. 1926, Chapter 45, [1949] S.C.R. 1, at 50, Rand J. stated that Apublic peace, order, security, health, [and] morality@ were Athe ordinary though not exclusive ends@ of the criminal law.⁶ The protection of health from injurious substances and the prevention of adulteration have been specifically upheld as valid criminal law goals.⁷

Parliament's constitutional authority to enact narcotics legislation under its criminal law power was established more than fifty years ago in Ex p. Wakabayashi. Ex p. Lore Yip, [1928] 3 D.L.R. 226 (B.C.S.C.). The present federal cannabis legislation is also based on the criminal law power and is constitutionally unassailable. Clearly, Parliament could substantially modify its present cannabis control regime. For example, Parliament could repeal its general cannabis possession prohibition and enact valid criminal legislation prohibiting possession and/or consumption in public, possession by minors, possession of stipulated cannabis products such as hash oil, or possession in the passenger section of an automobile.

Rather than repealing the present possession laws, the federal government could create limited exceptions to the existing control regime. These types of exceptions are not an uncommon feature of federal criminal legislation.⁸ In Morgentaler v. The Queen [1975], 53 D.L.R. (3d) 161, at 169 (S.C.C.), Laskin C.J.C. stated that AParliament may determine what is not criminal as well as what is, and may hence introduce dispensations or exemptions in its criminal legislation.@ Although this statement was perhaps too broad and was not central to the decision, Parliament's power to create limited exceptions to general criminal prohibitions appears well established.⁹ Provided the exception is an integral part of a bona fide criminal law package, and not merely a colourable attempt to encroach on provincial power, it should be upheld as valid. For example, Parliament could maintain the present general cannabis prohibition but exempt from liability those in possession of less than 30 grams, or those in possession in a private place.

It has also been held that Parliament may regulate aspects of a trade or behaviour under its criminal law power, if such regulation is necessarily incidental to a criminal legislation which serves bona fide criminal law purposes. In Ex p. Wakabayashi. Ex p. Lore Yip, [l928] 3 D.L.R. 226 (B.C.S.C.), provisions of the Opium and Narcotic Drug Act, 1923 (Can.) c. 22 as am., which affirmatively authorized the licensed sale and distribution of restricted drugs, were upheld as valid. It is important to emphasize that these sections empowered individuals to engage in an activity, rather than merely exempting them from criminal liability. The judge distinguished several cases which had held that similar regulatory provisions in other federal criminal acts were invalid. Instead, he stressed that the provisions in this case were necessarily incidental to the operation of the federal criminal drug law. The fact that this criminal legislation created a federal right to trade in drugs did not trouble him. Similar regulatory authority is contained in current federal criminal enactments including the Food and Drugs Act, R.S.C. 1970, c. F-27 and the Narcotic Control Act, R.S.C. 1970, c. N-l.¹⁰

The courts have restricted Parliament's regulatory authority under its criminal law power to bona fide criminal law purposes in order to prevent federal encroachment on provincial jurisdiction over property and civil rights in the provinces s. 92(13). Federal attempts to establish broad regulatory control of retail markets and various trades in the provinces have generally failed.¹¹ The more elaborate and extensive the federal criminal regulatory scheme is, the more likely it is that it will be declared invalid.¹² Federal criminal legislation providing comprehensive control over the production, distribution, and consumption of cannabis would probably be viewed as colourable criminal law C that is invalid legislation which bears the trappings of criminal law, but which in fact deals with intraprovincial trade, a matter within the exclusive competence of the provinces by virtue of section 92(13).¹³ The fate of a more modest federal regulatory scheme governing limited aspects of cannabis possession would be difficult to predict. If such provisions were enacted as an exception to a broad criminal cannabis prohibition, it might well be viewed as necessarily incidental to the federal criminal drug law. The issue is contentious and would likely turn on the exact scope and wording of the regulating sections.

The second constitutional basis for federal cannabis legislation is Parliament's trade and commerce power, s. 91(2). Under this power Parliament may tax, regulate and even prohibit the importation of any commodity.¹⁴ The courts have narrowly construed s. 91(2), confining federal jurisdiction to international and interprovincial trade.¹⁵ Federal legislation affecting intraprovincial trade has only been upheld when such control was necessarily incidental to the regulation of international or interprovincial trade.¹⁶ The courts would likely not accept that federal regulation of the retail cannabis trade is necessarily incidental to control of the international or interprovincial aspects of the trade.¹⁷

Federal liquor licensing legislation provides an appropriate example of the limits of Parliament's trade and commerce power. In 1883, Parliament enacted the Liquor License Act, 1883, 46 Victoria, c. 30 as am. by 47 Victoria, c. 32, establishing a complex regulatory system and a prohibition against the sale of liquor by unlicenced vendors. The Supreme Court of Canada held the act to be invalid to the extent that it controlled retail licensing and distribution in the provinces.¹⁸ The principle established in this case has usually been followed.

The preamble to section 91 of the B.N.A. Act authorizes Parliament to enact laws for the peace, order, and good government of Canada. The AP.O.G.G.@ clause, as it has been called, has been subject to varying judicial interpretations during the last hundred years. The Agap test@ provides that the P.O.G.G. clause is a residual power enabling Parliament to legislate on areas that do not come within the heads of section 92.¹⁹ Since cannabis control legislation clearly falls within several heads of section 92, the Agap test@ is inappropriate.²⁰

The courts have held that a subject matter originally within provincial jurisdiction might become of such national concern as to bring it within Parliament's P.O.G.G power.²¹ There have been several competing tests of what constitutes a matter of national concern.²² Regardless of which test or tests are adopted, it would be difficult to argue that cannabis use is a matter of national concern, particularly since recent legislative initiatives are predicated on the view that cannabis is not as serious a problem as previously thought.²³

The fourth possible basis for federal cannabis control is Parliament's treaty-implementing power in section 132 of the B.N.A. Act. Since Canada, as a colony could not enter into treaties in its own right, section 132 granted Parliament power to implement treaties between the British Empire and foreign states. Canada became an autonomous dominion in the 1920s, and began entering into treaties on its own behalf. Nevertheless, it was held that section 132 did not authorize Parliament to implement Canadian treaties.²⁴ Consequently, Parliament could not likely base cannabis legislation on Canada's status as a signatory to the Single Convention on Narcotic Drugs 1961. [Recent judicial discussion suggests that Parliament may have the power to implement Canadian treaties by virtue of the P.O.G.G. clause.²⁵] The power to enact legislation implementing a Canadian treaty resides in that level of government which has constitutional jurisdiction over the class of subjects within which the treaty falls.²⁶

A related issue is the effect of Canada's treaty obligations on Parliament's legislative authority. It has been established that Parliament may enact any legislation within its constitutional competence. The fact that such legislation violates Canada's treaty obligations may attract international criticism and even sanction, but it has no effect on the law's constitutional validity.²⁷

In summary, Parliament may use its criminal law power to enact a broad range of cannabis laws provided such legislation serves a traditional criminal law purpose. Parliament's trade and commerce power provides a much narrower basis for cannabis legislation, and its P.O.G.G. and treaty powers could not be invoked for this purpose.

Provincial Jurisdiction

Three heads of legislative power could arguably be used to support provincial cannabis legislation: the power over property and civil rights in the provinces s. 92(13); the public health power s. 92(7); and the power to make laws in relation to matters of a merely local or private nature in the provinces s. 92(16). Before examining provincial jurisdiction, several preliminary issues must be discussed.

Unlike Parliament, the provincial legislatures do not have an independent power to enact penal provisions. Rather, section 92(15) allows the provinces to create offences in order to enforce valid legislation enacted pursuant to one of their other enumerated heads of power. Thus, provincial penal enactments must serve bona fide provincial legislative purposes. It is often difficult to distinguish between valid provincial statutes containing ancillary penal provisions and colourable provincial legislation which is invalid because it is in essence criminal law. In recent years, the courts have tended to take a liberal view of provincial penal legislation.²⁸

Another major difference between federal and provincial penal powers is the legal significance of a conviction. Unless otherwise provided, the Criminal Code, R.S.C. 1970, c. C-34 applies to a violation of any penal provision of a federal act.²⁹ In effect, all such violations are crimes and result in the creation of a Acriminal record.@ Since a violation of a provincial penal statute is an offence and not a crime, provincial offenders do not, in a strict legal sense, have a criminal record C despite the fact that official records are maintained and the sanctions imposed may be severe. The most important difference between a conviction for a federal crime and a provincial offence stems from the collateral punitive consequences that often result from the former.³⁰

Finally, it should be noted that valid provincial legislation will not be given legal effect if it is inconsistent with a valid federal enactment on the same subject. The federal law is paramount and the provincial law is rendered inoperative to the extent of the inconsistency.³¹ Unfortunately, this distinction between validity and paramountcy was blurred in the three most relevant cases dealing with provincial drug laws.³² As a result, the caselaw provides little guidance in determining the bounds of valid provincial drug legislation.

As indicated earlier, the provincial power to enact legislation in relation to property and civil rights in the province includes the power to control intraprovincial trade. The provincial regulatory and licensing schemes governing alcohol production, pricing, distribution and consumption are based on this head of power.³³ Therefore provincial regulatory control over cannabis would likely be valid on the same basis. As in the case of alcohol, the provinces' regulatory responses to cannabis would vary.

The provinces probably could not rely solely on their jurisdiction over intraprovincial trade to prohibit cannabis outright. Such a statute might be viewed as colourable provincial legislation which is in essence criminal law, and thus invalid.³⁴ In any event, a province could severely restrict, and perhaps, all but prohibit the cannabis trade by carefully drafting stringent production, distribution, pricing and consumption provisions.

Section 92(7), which empowers the provinces to enact legislation regarding health institutions, has been interpreted to include all public health matters not specifically assigned to Parliament.³⁵ The caselaw and existing provincial statutes suggest that the provincial health power encompasses a broad range of health-related legislation, such as confiscation of property which threatens public health, control of contagious diseases, food inspection, environmental health, mental illness and health insurance.³⁶

The regulation and even prohibition of non-medical drug use appears to fall within the provincial health authority. Yet, there is little caselaw on point. Despite their complexity, the provincial liquor prohibition cases are the most analogous. Initially, the courts held that the provinces could prohibit alcohol as a Alocal evil,@³⁷ under section 92(16), but the Supreme Court later rejected this interpretation of the section.³⁸ Therefore the Le Dain Commission stated that the provincial alcohol cases must be viewed as based on the provincial jurisdiction over public health. The Commission concluded that the provinces have a similar jurisdiction over non-medical drug use:

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 Alocal 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.³⁹

The following year, a similar prohibition against LSD possession in British Columbia's Health Act, R.S.B.C. 1960, c. 170 as am. by 1967, c. 21, s. 4, was found to be invalid.⁴⁰ This LSD prohibition was part of a legislative package which included a cannabis prohibition. The British Columbia Court of Appeal felt the latter was invalid, as it was a clear invasion of the criminal law field. The LSD prohibition was held to be invalid because it was linked to the invalid cannabis legislation. Again the issues of validity and paramountcy appear to have been blurred. If the LSD prohibition had been carefully drafted in terms of health concerns, the result might have been different.

Although the caselaw is confusing, the general conclusion reached by the Le Dain Commission appears to be correct. A carefully drafted provincial cannabis prohibition, which clearly reflects concern for public health, ought to be upheld.

Section 92(16) empowers the provinces to make laws in relation to matters of a merely local or private nature in the province. As indicated, this section has been subject to varying judicial interpretations. The more recent cases suggest that section 92(16) will not sustain provincial penal legislation designed to suppress a local evil or enforce morality.⁴¹ In light of these cases, and the Le Dain Commission's interpretation of the early provincial alcohol prohibition cases, section 92(16) does not appear to be an appropriate basis for provincial regulation or prohibition of non-medical drug use.

In summary, the provinces could regulate the cannabis trade by virtue of their jurisdiction over either property and civil rights in the provinces, or their public health power. It appears, however, that they could only prohibit cannabis by enacting carefully drafted legislation under their public health authority.

The Doctrine of Paramountcy and Concurrency

Since both the federal and provincial governments have the power to enact valid cannabis legislation, it is necessary to determine how conflicts between their enactments would be resolved. As indicated, the doctrine of paramountcy provides that if valid federal legislation and valid provincial legislation on the same subject are inconsistent, the federal law will prevail. The provincial statute, while not invalid or repealed, is rendered inoperative to the extent of the inconsistency. Where there is no inconsistency both laws operate concurrently.⁴²

Two alternative tests of inconsistency have been articulated by the courts: the Anegative implication test@ and the Aexpress contradiction@ test.⁴³ Mr. Justice Cartwright provides a clear example of the negative implication test in his dissenting judgment in O'Grady v. Sparling, [1960] S.C..R. 804, at 820-821:

...when Parliament has expressed in an act its decision that a certain kind or degree of negligence in the operation of a motor vehicle shall be punishable as a crime against the state it follows that it has decided that no less culpable kind or degree of negligence in such operation shall be so punishable. By necessary implication the Act says not only what kind or degree of negligence shall be punishable but also what kinds or degrees shall not.

In recent years the majority of the Supreme Court has rejected the negative implication test in favour of the much narrower express contradiction test.⁴⁴ Under the latter, an inconsistency arises if the provincial legislation expressly contradicts the federal, rendering it impossible for a person to obey both laws.⁴⁵ Thus, a provincial statute which is virtually identical to a federal law raises no paramountcy issue because there is no inconsistency,⁴⁶ even though theoretically an individual may be convicted twice for one act.⁴⁷ The fact that a provincial law imposes a stricter standard of conduct than a federal enactment does not violate the express contradiction test. The courts have reasoned that in such situations a person may obey both laws by complying with the stricter of the two.

The express contradiction test was examined in Ross v. Registrar of Motor Vehicles, [1975] S.C.R. 5.⁴⁸ Following a conviction for impaired driving under the Criminal Code R.S.C. 1970, c. C-34 as am. 1972, c. 13, s. l8, Ross was prohibited from driving except during working hours. Subsequently, his license was unconditionally suspended under the provincial highway traffic act C clearly defeating the goals of the federal law. The Supreme Court held that there was no express contradiction between the two statutes. The provincial act did not take away a federally-created right, but merely augmented the federal sanction. Ross could satisfy the sentences imposed under both laws by complying with the more onerous provincial sanction. It appears that the decision might have been different if the federal legislation expressly empowered the sentencing judge to authorize driving under certain circumstances notwithstanding a general driving prohibition in the federal law.⁴⁹ In this case it could be argued that the provincial provision would negate a federally-created right. Ross would be expressly authorized to drive by federal law, but expressly prohibited by the provincial statute.⁵⁰

The application of the paramountcy doctrine to the field of cannabis legislation is contentious. The judicial analysis of the express contradiction test has left several issues unresolved. Because of the narrow definition of inconsistency, there have been few cases in which the courts have found an express contradiction, and therefore few examples of its application.

The drug cases in which the paramountcy doctrine has arisen provide little guidance. In Dufresne et al. v. The King, [1912], 19 C.C.C. 414 (Que. K.B.) the judge concluded that a provincial drug law was rendered inoperative because it imposed liability in broader circumstances than the federal act. His reasoning appears to be based on the negative implication test. In Regina v. Snider and Fletcher, [1967], 61 W.W.R. 112 (Alta. S.C.) the validity of a provincial LSD prohibition was upheld, and the paramountcy doctrine only arose in relation to a subsidiary point. In his brief discussion of the matter, the judge apparently confused the questions of validity and paramountcy. The following year, a similar British Columbia LSD provision was held to be invalid. It was part of a legislative package containing a cannabis prohibition. Without explaining why, the court stated that the cannabis prohibition was a clear invasion of Parliament's criminal law power, and held the LSD prohibition to be similarly tainted. It is possible to infer that the provincial cannabis prohibition was struck down merely because it duplicated the federal law.

While the three drug cases are confusing, they appear to support the negative implication test of inconsistency. Since the majority of the Supreme Court specifically rejected this test, the three drug cases are not reliable precedents. The following analysis is based on the assumption that future conflicts between provincial and federal cannabis legislation will be resolved according to the express contradiction test.

Whether provincial legislation expressly contradicts a federal enactment depends on the exact wording of the statutes and the courts' interpretation of the Ross case.⁵¹ The following examples are intended to provide an outline of how such issues might be resolved.

The provinces could probably enact valid cannabis legislation with onerous sanctions pursuant to its public health power, notwithstanding the present federal prohibition. Since mere duplication does not amount to inconsistency and the provincial penalties would augment the federal sanctions, there would be no express contradiction. Both laws would operate concurrently. The provinces would have little reason to pursue this course of action, unless Parliament drastically reduced the present sanctions for possession of cannabis.

The paramountcy issue will likely arise if Parliament partially or totally repeals its present cannabis possession prohibition and the provinces respond by enacting provincial cannabis legislation. If Parliament replaced the current possession prohibition with a provision stipulating that possession of 30 or more grams of cannabis is an offence, the provinces might seek to prohibit possession of less than 30 grams. Since a person could obey both laws by complying with the stricter provincial enactment, there would be no express contradiction and both laws would operate concurrently.

Even if Parliament were to enact legislation stating that possession of 30 grams or more of cannabis was an offence and that possession of less than 30 grams was not an offence, the provinces could still prohibit possession of less than 30 grams. This situation is parallel to that in the Ross case. Parliament's failure to prohibit an act does not create a federally-guaranteed right to engage in that activity. As in the Ross case, the provincial cannabis statute would likely be viewed as merely augmenting the federal legislation. Since compliance with one act does not involve breach of the other there would be no express contradiction and both laws could operate concurrently.

The result would be less clear if Parliament specifically authorized possession of less than 30 grams of cannabis as an express exception to a general cannabis possession prohibition.⁵² As indicated earlier, Parliament's power to authorize conduct under its criminal law power is limited. A federal criminal statute empowering someone to possess cannabis might be struck down as invalid, unless it was narrow in scope and carefully drafted. Assuming the federal legislation was valid then a provincial cannabis prohibition would clearly extinguish a federally-created right to possess under 30 grams. Nonetheless, a person could comply with both laws by obeying the stricter of the two. The Ross case did not address this situation. The strong dissents and the wording of the majority judgment suggest that a provincial prohibition and a federal authorization would expressly contradict one another.⁵³ If they did not, it would be difficult to imagine how an express contradiction could ever arise between substantive penal provisions. Therefore, it would appear that the provincial prohibition would expressly contradict the federal authorization. The federal legislation would be paramount, and the provincial cannabis prohibition would be rendered inoperative.

An express contradiction might also arise if the enforcement of the federal cannabis legislation conflicted with the enforcement of the provincial cannabis law. If Parliament was intent on preventing the provinces from entering the field, it could probably draft procedural provisions which would almost certainly conflict with the enforcement of a provincial cannabis offence. For example, the federal cannabis legislation could direct that a peace officer shall not arrest or detain any person for possession of cannabis unless the quantity involved is 30 grams or more. It could also provide for the confiscation of lesser quantities, but expressly prohibit the officer from recording the individual's name, or other personal information except as provided for by regulation. The exact wording of such procedural provisions would depend on the nature of the substantive criminal law.

Joint Federal-Provincial Control of Cannabis

Assuming that the political problems associated with the negotiations could be overcome, Parliament and the provinces could agree to adopt a single legislative policy regarding cannabis. The provinces could agree not to enact cannabis legislation pursuant to their health power, if Parliament's criminal cannabis legislation contained certain provisions. Similarly Parliament could partially or totally repeal its cannabis prohibitions on condition that the provincial cannabis law met stipulated criteria. The only limit on these kinds of arrangements is that the body enacting the legislation have the constitutional power to do so.

Parliament has often used its spending power to encourage the provinces to enact legislation which is consistent with federal policy.⁵⁴ The federal government could offer financial inducements to encourage the provinces to adopt consistent legislative policies on cannabis. Although the issue was not central to the decision, the court in Mercer v. Attorney-General of Canada, [1971] 3 W.W.R. 375, at 384-385 (Alta. S.C.) suggested that such arrangements are not constitutionally assailable.

4. Specific Constitutional Issues Related to Federal Cannabis Legislation

Parliament's Power to Create Non-Criminal Of fences

Several American states have "decriminalized" cannabis possession by transferring the relevant provisions from their criminal codes to their regulatory offence codes. Cannabis possession is not legalized, but rather becomes a non-criminal offence subject to punishment like a violation of a provincial highway traffic act. While a record of the incident may be officially recorded, the offender would not have a criminal record. This approach is available to the state governments because they have the constitutional power to create both criminal and non-criminal offences. As appealing as this model might be, Parliament appears to lack the constitutional authority to implement it.

Federal authority to enact cannabis legislation is, and will likely remain, based on its criminal law power. It is difficult to see how Parliament could create a non-criminal offence under its criminal law power given that the courts have defined a crime as an act prohibited with penal consequences. If it is to be upheld as a valid criminal enactment, the cannabis legislation must serve traditional criminal public purposes, and its breach must be subject to penal consequences. It may be argued that by definition alone, Parliament could not validly create a non-criminal cannabis offence.

In any event, the Interpretation Act R.S.C. 1970, c. I-23, s. 27 in effect renders a violation of any federal statute a criminal offence subject to all of the provisions of the Criminal Code R.S.C. 1970, c. C-34. Thus, parking on federal property in violation of the Government Property Traffic Act R.S. 1970, c. G-l0 constitutes a criminal offence. The fact that the legislation provides for ticketing the vehicle and entering a conviction upon payment of a set fine, does not negate the criminal nature of the offence, but merely relates to the criminal procedures and sanctions.

There is no reliable caselaw directly on point. In Toronto Railway Company v. The King, [1917], 29 C.C.C. 29 (P.C.) the court suggested, in the course of a very complex judgment, that Parliament could create a non-criminal offence. However, the decision appears to be based on a fundamental error. The court failed to recognize that Canada, unlike Great Britain, is a federation with a clear division of legislative authority between Parliament and the provinces. This error was detailed in Rex v. City of Victoria, [1920], 33 C.C.C. l08 (B.C.C.A.) and the Toronto Railway Company case has not been followed on this issue.

Although Parliament cannot create a non-criminal offence, the provinces can clearly do so. If the federal government is intent on cannabis possession being made a non-criminal offence, it could agree to repeal its current criminal prohibition on condition that the provinces enact a possessional offence. As indicated a violation of a provincial penal provision may be made punishable by a fine or imprisonment, but it is not a crime and such offenders do not, in a strict legal sense, have a criminal record.

Parliament's Power to Control Criminal Records In the Possession of Provincial Enforcement Agencies

Recent federal proposals concerning cannabis and the Criminal Records Act R.S.C. 1970, (1st Supp.), c. 12 call for limits on the dissemination of criminal records in order to reduce the collateral punitive consequences of a criminal conviction. Since the bulk of criminal records are generated and maintained by provincial enforcement agencies, the issue arises whether Parliament can control dissemination of this data.

Section 91(27) authorizes Parliament to legislate in relation to criminal law and procedure, and this power carries with it some responsibility for the enforcement and prosecution of the criminal law. The management of the criminal records generated by federal agencies is necessarily incidental to Parliament's enforcement power and is within the federal sphere of legislative competence. The provinces' power over the administration of justice s. 92(14) provides them with concurrent authority to enforce and prosecute the criminal law. The record-keeping practices of provincial enforcement agencies are clearly within this provincial mandate. It should be noted that the provinces have assumed primary responsibility for enforcing and prosecuting the criminal law, and that the federal government's activities are limited to a relatively small number of specialized criminal offences. Even if the federal government expanded its role, it is doubtful that control of provincial record-keeping would be considered necessarily incidental to federal enforcement.

If all record-keeping in criminal cases is a matter of criminal procedure or is necessarily incidental to criminal procedure, it would fall within Parliament's jurisdiction under section 91(27). In response, the provinces could argue that the criminal records of provincial enforcement agencies are a matter relating to the administration of justice and that consequently, they alone have legislative competence in this field. The provincial argument for exclusive control appears to be more compelling. Provincial enforcement agencies collect, maintain and disseminate criminal records in the ordinary course of enforcing and prosecuting the criminal law, and record-keeping is essential to the efficient and orderly administration of criminal justice. It is difficult to predict how the courts would resolve this issue. There are no cases directly on point and the boundaries between Parliament's criminal law and procedure power, and the province's administration of justice power have not been clearly defined.⁵⁵

In Re Hauser And The Queen, [1977], 80 D.L.R. (3d) 161 (Alta. C.A.) the court examined these two heads of power in relation to the prosecutorial function. Three of the five judges favoured a broad view of the province's power over the administration of justice C a view that would support the province's exclusive control of provincial record-keeping practices. However, the Hauser case is not an authoritative precedent. The case deals with the prosecutorial function not criminal records, contains a strong dissent, conflicts with the reasoning in other Court of Appeal decisions,⁵⁶ and is under appeal to the Supreme Court of Canada.

On balance, Parliament probably does not have the constitutional power to control the dissemination of criminal records in the possession of provincial enforcement agencies. This conclusion may have to be reconsidered after the Supreme Court of Canada decision in Hauser. In any event, the Hauser case indicates that some provinces would likely challenge federal attempts to control provincial record-keeping.

Parliament's Power to Authorize Confiscation of Cannabis in the Absence of a Possessional Offence

The confiscation of cannabis or any other property is, in essence, a matter of property law which falls within the provincial power over property and civil rights 92(13). This provincial power is clearly limited by several heads of federal power, the most significant of which for our purposes are Parliament's jurisdiction over criminal law and procedure s. 91(27) and trade and commerce s. 91(2). For example, peace officers have been granted broad powers to seize and confiscate property as evidence of criminal conduct.⁵⁷ Upon termination of the case, the property may be forfeited to the Crown, returned to the suspect or, in the case of stolen property, given back to the rightful owner. Federal control of such property rights is necessarily incidental to Parliament's exercise of its criminal law and procedure power. Similarly the provisions of the Customs Act R.S.C. 1970, c. C-40 granting federal officials extensive powers of search, seizure and confiscation are necessarily incidental to Parliament's trade and commerce power.

These precedents do not directly address the issue of whether Parliament could authorize the routine confiscation of cannabis, if there was no possessional offence. It would be difficult to justify seizing cannabis from one individual, on the basis that it may provide evidence of trafficking on the part of some unidentified third party. Few of these seizures would be made as part of an ongoing trafficking case or would ever be seriously followed up. Since domestically cultivated cannabis cannot be readily distinguished from foreign supplies, such seizures could not likely be based on enforcement of the federal customs legislation.

Parliament could argue that confiscation of cannabis is necessarily incidental to the goals of its narcotics legislation, even if possession of cannabis is not itself a criminal offence. Confiscation could be seen as a mechanism for discouraging possession, and thus as an essential adjunct to Parliament=s general criminal prohibition against all commercially-related cannabis transactions. Unfortunately, there are no cases or articles on the federal government's powers of confiscation. However, a number of federal statutes contain confiscatory provisions, which can be invoked in the absence of criminal conduct. In the statutes we examined, the power to confiscate property was used primarily as a means of attaining the legislation's goals, and not as a sanction. Most of the confiscatory sections are designed to protect specific individuals or the general public from harm that may result from the use of the goods in question.

The following statutory analysis illustrates the breadth of the federal confiscatory provisions. The Meat and Canned Foods Act R.S.C. 1970, c. M-6 s. 22(2) provides that unsound fish found during processing and any unsound canned fish may be seized and confiscated. Section 7 of the Animal Disease and Protection Act R.S.C. 1970, c. A-13 as am. S.C. 1974-76, s. 86 empowers the Minister of Agriculture to have destroyed any animal suspected of carrying an infectious disease. Cabinet may make regulations respecting the seizure, detention, forfeiture or disposition of hazardous products by virtue of section 7(b) of the Hazardous Products Act R.S.C. 1970, c. H-13. The Navigable Waters Protection Act R.S.C. 1970, c. N-19 ss. 13-16, provide that the Minister of Transport may order the removal or destruction of any vessel or thing which in his opinion renders difficult or dangerous navigation in any navigable waters. The vessel and its cargo may be sold to cover the expenses incurred; any surplus is returned to the owner; and any deficit becomes a debt due to, and recoverable by the crown. The confiscatory provisions of these acts apply whether or not the owner of the goods was involved in criminal conduct.

The Criminal Code R.S.C. 1970, c. C-34 also authorizes the confiscation of property in the absence of criminal conduct. Section 403(2) permits a peace officer to seize fighting cocks under certain circumstances, even though the owner of the fighting cock cannot be charged with an offence. Section 101(2) provides that a peace officer may seize any offensive weapon or firearm in stipulated situations, even though the person in possession had lawful custody of the weapon and was not suspected of any criminal conduct. Several sections of the Criminal Code R.S.C. 1970, c. C-34 authorize a judge to issue a seizure warrant, even though the property is not needed as evidence and its owner is not engaged in criminal conduct.

The examples discussed above do not provide an exact parallel to the confiscatory provisions that would likely be enacted for cannabis. They do, however, indicate that Parliament may authorize confiscation of private property as a means of accomplishing the goals of bona fide federal legislation. Consequently, it would appear that Parliament could authorize the confiscation of cannabis in the absence of a possessional offence, provided the confiscatory measures were an integral part of the criminal cannabis legislation.

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

2. See, for example, Attorney-General For Alberta v. Attorney-General for Canada And Others, [1939] A.C. 117 (P.C.); Texada Mines Limited v. The Attorney-General Of British Columbia, [1960] S.C.R. 713. 

3. See Bank of Toronto v. Lambe, [1887], 12 App. Cas. 575 (P.C.); Gold Seal Limited v. Dominion Express Company and The Attorney-General For The Province of Alberta [1921], 62 S.C.R. 424. 

4. Hodge v. The Queen, [1883], 9 App. Cas. 117, 130 (P.C.). 

5. Toronto Electrical Commissioners v. Snider and Attorneys-General For Canada and Ontario, [1925] A.C. 396, 400 (P.C.); Ex p. Wakabayashi. Ex p. Lore Yip, [1928] 3 D.L.R. 226, 228 (B.C.S.C.). 

6. The definition of the federal criminal law power may be traced through a series of cases. See In Re The Board Of Commerce Act, 1919, And The Combines And Fair Prices Act, 1919, [1922] 1 A.C. 191 (P.C.); Proprietary Articles Trade Association v. Attorney-General For Canada, [1931] A.C. 310 (P.C.); Attorney-General for British Columbia v. Attorney-General For Canada, [1937] A.C. 368 (P.C.); In The Matter Of A Reference As To The Validity Of Section 5(A) Of The Dairy Industry Act, R.S.C. 1927, Chapter 45, [1949] S.C.R. 1, approved on appeal in Canadian Federation Of Agriculture v. Attorney-General For Quebec, [1951] A.C. 179 (P.C.). 

7. See, for example, Standard Sausage Company Limited v. Lee, [1934] 1 W.W.R. 81 (B.C.C.A.); and Rex v. Perfection Creameries Limited, [1939] 2 W.W.R. 139 (Man. C.A.). 

8. See, for example, the Criminal Code R.S.C. 1970, c. C-34, as am. to March, 1976: s. 81 (prize fights); ss. 185-190 (gaming, betting, lotteries); s. 251 (abortion). See also the Lord=s Day Act R.S.C. 1970, c. L-13 containing various exemptions. 

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

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

11. See, for example, In Re The Board of Commerce Act, 1919, And The Combines And Fair Prices Act, 1919, [1922] 1 A.C. 191 (P.C.); In The Matter Of A Reference As To Whether The Parliament Of Canada Had Legislative Jurisdiction To Enact The Dominion Trade and Industry Commission Act, 1935, Being 25-26 Geo. V, C. 59, [1936] S.C.R. 379; Attorney-General For Ontario v. Reciprocal Insurers, [1924] A.C. 328 (P.C.). 

12. Hogg, Constitutional Law of Canada, at 291. 

13. The Citizens Insurance Company Of Canada v. Parsons, [1881], 7 App. Cas. 96 (P.C.); Attorney-General For The Dominion of Canada v. Attorney-General For The Province Of Alberta, [1916] 1 A.C. 588 (P.C.); Hodge v. The Queen, [1883], 9 App. Cas. 117 (P.C.). See also the Le Dain Final Report, at 916-922. 

14. Gold Seal Limited v. Dominion Express Company and The Attorney-General For The Province Of Alberta, [1921], 62 S.C.R. 424; Caloil Inc. v. The Attorney-General Of Canada, [1971] S.C.R. 543; Attorney-General Of British Columbia v. Attorney-General Of Canada, [1924] A.C. 222 (P.C.). 

15. The Citizens Insurance Company Of Canada v. Parsons, [1881], 7 App. Cas. 96 (P.C.). The history of the judicial interpretation of the federal trade and commerce power s. 91(2) is outlined in Hogg, Constitutional Law of Canada, at 267-275. 

16. Caloil Inc. v. The Attorney-General of Canada, [1971] S.C.R. 543, affirming The Queen v. Klassen, [1959], 20 D.L.R. (2d) 406 (Man. C.A.). 

17. See the Le Dain Final Report, at 916-917. 

18. Unreported decision. See the McCarthy Act decision reported in the Schedule to 48-49 Victoria, c. 74. 

19. See Hogg, Constitutional Law of Canada, at 245-246 for a fuller explanation. 

20. These heads of power, sections 92(7), 92(13), and 92(16), are discussed in Provincial Jurisdiction, above. 

21. See generally the Le Dain Final Report, at 917-918. 

22. See, for example, Fort Frances Pulp and Paper Company Limited v. Manitoba Free Press Company Limited, [1923] A.C. 695; Reference Re Validity of Wartime Leasehold Regulations, [1950] S.C.R. 124; Reference Re Anti-Inflation Act, [1976] 2 S.C.R. 373. 

23. This is also the conclusion reached in the Le Dain Final Report at 921-922. The Final Report also notes that the controversial early liquor cases allowing for federal prohibition which are seemingly justified by the general power, may be better explained on the basis of the criminal law power. 

24. Attorney-General For Canada v. Attorney-General For Ontario, [1937] A.C. 326 (P.C.). 

25. MacDonald et al. v. Vapour Canada Ltd. et al., [1976], 66 D.L.R. (3d) 1, 27-29 (S.C.C.). 

26. Attorney-General For Canada v. Attorney-General For Ontario, [1937] A.C. 326 (P.C.). See Hogg, Constitutional Law of Canada, at 181-195 and 189-190. 

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

28. See, for example, The Provincial Secretary Of The Province Of Prince Edward Island v. Egan, [1941] S.C.R. 396; Smith v. The Queen, [1960] S.C.R. 776; O=Grady v. Sparling, [1960] S.C.R. 804; Mann v. The Queen, [1966], S.C.R. 238. 

29. Interpretation Act R.S.C. 1970, c. I-23, s. 27. 

30. These are discussed more fully in The Sociolegal Consequences of Enforcement in Part 3. 

31. The issue of paramountcy is fully discussed in Constitutional Considerations in Part 3. 

32. Dufresne et al. v. The King, [1912], 19 C.C.C. 414 (Que. K.B.); Regina v. Snyder and Fletcher, 1967], 61 W.W.R. 112 (Alta. S.C.); Regina v. Simpson, Mack and Lewis, [1968], 1 D.L.R. (3d) 597 (B.C.C.A.). 

33. See, for example, Hodge v. The Queen, [1883], 9 App. Cas. 117 (P.C.); Attorney-General For Ontario v. Attorney-General For the Dominion, and The Distillers and Brewers Association of Ontario, [1896] A.C. 348 (P.C.). 

34. In Dufresne et al. v. The King, [1912], 19 C.C.C. 414 (Que. K.B.) the court appeared to adopt this line of reasoning in finding that a provincial statute which limited the sale of cocaine to wholesale dealers and medical professionals was invalid. The court stated, at p. 419:

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

36. See Hal Joffee and J. Oakley, AThe Constitutionality Of The British Columbia Heroin Treatment Act,@ unpublished research report prepared for the Non-Medical Use of Drugs Directorate, Health and Welfare Canada, 1978, at 26-27. 

37. Attorney-General For Ontario v. Attorney-General For The Dominion, And The Distillers And Brewers Association Of Ontario, [1896] A.C. 348 (P.C.); Attorney-General Of Manitoba v. Manitoba Licence Holders= Association, [1902] A.C. 73 (P.C.). 

38. See the Le Dain Final Report, at 931-932; and Hogg, Constitutional Law of Canada, at 241-265. 

39. Le Dain Final Report, at 932. 

40. Regina v. Simpson, Mack And Lewis, [1968], 1 D.L.R. (3d) 597 (B.C.C.A.). 

41. See, however, Re Nova Scotia Board of Censors v. McNeil, [1978], 84 D.L.R. (3d) 1, 28 (S.C.C.). Although it is not clear from his judgment, Mr. Justice Ritchie appears to suggest that section 92(16) may support provincial legislation establishing moral standards. 

42. See generally Hogg, Constitutional Law of Canada, at 101-114. 

43. A variety of labels have been applied to the two tests. For the sake of consistency and to avoid confusion, we have adopted the terminology used by Hogg. 

44. See, for example, The Provincial Secretary Of The Province Of Prince Edward Island v. Egan, [1941] S.C.R. 396; Reference Re S. 92(4) Of The Vehicles Act 1957 (Sask.), [1958] S.C.R. 608; O=Grady v. Sparling, [1960] S.C.R. 804; Stephens v. The Queen, [1960] S.C.R. 823; Mann v. The Queen, [1966] S.C.R. 238; Ross v. The Registrar of Motor Vehicles and the Attorney-General For Ontario, [1975] 1 S.C.R. 5. See also Hogg, Constitutional Law of Canada, at 103-109. 

45. In Smith v. The Queen, [1960] S.C.R. 776, 800, Martland J. stated there is an express contradiction when Acompliance with one law involves breach of the other.@ 

46. See Smith v. The Queen, [1960] S.C.R. 776; Mann v. The Queen, [1966] S.C.R. 238. 

47. Hogg, Constitutional Law of Canada, at 112-113. 

48. See also O=Grady v. Sparling, [1960] S.C.R. 804. For a criticism of the Ross case see Peter Barton, AComments@ 53 Canadian Bar Review, (1975), 80. 

49. The relevant section of the Criminal Code states that where an accused has been convicted, the judge may A...make an order prohibiting him from driving...at such times and places as may be specified....@ Thus this section does not expressly give a judge the power to authorize driving under certain circumstances. Pigeon, J., at p. 16, noted that AParliament did not purport to state exhaustively the law respecting motor driving licences, or the suspension or cancellation for driving offences. Therefore, the question whether this could validly be done by Parliament does not arise. 

50. The issue of whether Parliament could validly authorize driving under its criminal law power was not confronted by the court. It also specifically left open the issue of whether such an authorization, if valid, would conflict with the provincial highway traffic act. 

51. Ross v. The Registrar of Motor Vehicles and the Attorney-General For Ontario, [1975] 1 S.C.R. 

52. It should be noted that federal legislation authorizing cannabis possession would likely violate Canada=s treaty obligations under the Single Convention on Narcotic Drugs 1961. 

53. Hogg reaches a similar conclusion: AIf the field had been occupied by express words, as opposed to implication, presumably then there would be an express contradiction which would suffice to trigger the paramountcy doctrine.@ Constitutional Law of Canada, at 110, Note_47. See also 388-389 where Hogg discusses section 88 of the Indian Act R.S.C. 1970, c I-6. 

54. Ibid., at 68-74. 

55. Ibid., 277-278. 

56. See for example, R. v. Pelletier, [1974], 18 C.C.C. (2d) 516 (Ont. C.A.); R.v. Dunn et al., [1977], 36 C.C.C. (2d) 495 (Sask. C.A.). 

57. See for example, Industrial Acceptance Corp. v. The Queen, [1953], 107 C.C.C. 1 (S.C.C.).