F Some Legal Considerations
F.1 THE CONSTITUTIONAL FRAMEWORK 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.2 Both the Narcotic Control Act3 and the Food and Drugs Act4 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 Limited5 that mens rea or guilty knowledge was not an essential ingredient of the offence of being in possession 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:
I do not think that a new crime was added to our criminal law by making regulations which prohibit persons from having undersized lobsters in their possession, nor do I think that the stigma of having been convicted of a criminal offence would attach to a person found to have been in breach of these regulations. The case of Beaver v. The Queen, supra, affords an example of provisions of a federal statute other than the Criminal Code which were found to have created a truly criminal offence, but in the present case, to paraphrase the language used by the majority of this Court in the Beaver case I can discern little similarity between a statute designed, by forbidding the possession of undersized lobsters to protect the lobster industry, and a statute making it a serious crime to possess or deal in narcotics.
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 licence or through a government monopoly of distribution. Two possible alternative bases of jurisdiction have to be considered: the trade and commerce powers and the general power, or "peace, order and good government" clause?
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.8 Transactions which take place wholly within a province fall, as a general rule, under provincial jurisdiction. Exceptionally, the federal government may regulate intraprovincial transactions if such regulation is necessarily incidental to the effective regulation of extraprovincial 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 necessary to 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.9
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,1° radio," atomic energy12 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,'5 industrial standards,'8 marketing" and restraint of trade,18 have all failed. The regulation of these matters within the provinces, in 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 emergency, 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, but 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 exercise of the general power. In the first of these cases—Russell v. The Queen"—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 essentially 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 of the federal statute was the prohibition of conduct with penal consequences. Speaking of laws having a criminal law purpose, the Privy Council said:
Laws of this nature designed for the promotion of public order, safety or morals, and which subject those who contravene them to criminal procedure and punishment, belong to the subject of public wrongs rather than to that of civil rights. They are of a nature which fall within the general authority of Parliament to make laws for the order and good government of Canada, and have direct relation to criminal law, which is one of the enumerated classes of subjects assigned exclusively to the Parliament of Canada.
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,2° 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 power—one 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 Queen21 they held that the provinces had the power to introduce such a system of regulation, and two years later in the unreported McCarthy Act decision22 they held that the federal Parliament did not. The implications of this second decision are that Parliament does not have a 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 for judgment 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 focussed 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.23) 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 case24 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 judgment 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;25 but the weight of opinion,25 and the assumption on which governments have acted,27 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(11), which gives Parliament jurisdiction with respect to "Quarantine and the Establishment and Maintenance of Marine Hospitals". In addition, Parliament 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 legislative jurisdiction is a controversial issue, as 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 BN A 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.28 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.25 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, 1971, which provides:
.... when abusers of psychotropic substances have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to punishment, that such abusers undergo measures of treatment, education, after-care, rehabilitation and social reintegration in conformity with paragraph 1 of article 20.
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 hospitalization is required "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) of the BNA Act respecting the establishment of hospitals and asylums, section 92(13) respecting property and civil rights, including questions of incapacity and the protection of incapables, and section 92(16) which covers the residual provincial jurisdiction with respect to matters of health.3°
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:
The Committee points out that it is not within the constitutional authority of the federal government to assume responsibility for treatment of drug addicts nor to enact the kind of legislation necessary in that connection. This legislation would need to include the compulsory treatment of addiction, the legal supervision and control over the individual during treatment and the right of control of an individual following treatment to prevent his return to the use of drugs, former associations or habits. These are considered to be matters beyond the competence of the federal government."
In 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.32 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 legislation33) 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.35 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 of the offender 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 #ctually 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 37 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,38 and orders not to commit a specific offence in the future 39 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 what 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.41 American civil commitment statutes sometimes 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.42 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 fide 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 domestic 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 Canadian constitution. Thus, where the implementation of a proposed international agreement will require provincial legislative action, the agreement 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.45 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,46 and other decisions have made it plain that the provinces do not have a jurisdiction to create penal offences for the enforcement of morality.47
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 suppres, sion 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 make conduct related to non-medical drug use a punishable offence. The problem is 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. *
* There is further discussion of federal jurisdiction with respect to compulsory treatment in
Appendix J Probation for Heroin Dependents in Canada.
* There is discussion elsewhere in this report of other constitutional issues, such as the relationship between federal control of drug availability and provincial regulation of the practice of medicine (see Section IX Opiate Maintenance) and jurisdiction with respect to the regulation of advertising (see Section XIV The Mass Media).