R. v. Aziz, [1981] 1 SCR 188

Supreme Court of Canada

R. v. Aziz, [1981] 1 S.C.R. 188

Date: 1981-01-27

Her Majesty The Queen Appellant;

and

Abdellatif Aziz Respondent;

and

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

1980: October 28; 1981: January 27.

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law—Power of Attorney General of Canada to institute prosecution for conspiring to import drugs—Application of decision in Hauser—Narcotic Control Act, R.S.C 1970, c. N-l, s. 5(1)—Criminal Code, ss. 2, 115(2), 423(1)—Interpretation Act, R.S.C 1970, c. I-23, s. 27—British North America Act, ss. 91(27), 92(14).

Criminal law—Procedure—Conspiracy to import drugs—Indictment laid by Attorney General of Canada—Narcotic Control Act, R.S.C. 1970, c. N-l, s. 5(1)—Criminal Code, s. 423(1).

Respondent was convicted of conspiring to import drugs in contravention of s. 5(1) of the Narcotic Control Act, thereby committing a breach of s. 423(1) of the Criminal Code. The indictment was preferred by the Attorney General and signed by his agent. The accused appealed on the ground, inter alia, that the indictment was a nullity because the Attorney General of Canada did not have the right to prefer it. The Court of Appeal for Quebec allowed the appeal upon this ground. This judgment was rendered before the judgment of this Court in R. v. Hauser, [1979] 1 S.C.R. 984, but respondent argued that this decision was not conclusive because it held that the Attorney General of Canada could prefer indictments for breaches of the Narcotic Control Act, while in the case at bar the offence alleged, that of conspiracy, is a breach of the Criminal Code.

Held: The appeal should be allowed.

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The right of the Attorney General of Canada to initiate proceedings is incidental to the definition of “Attorney General” in s. 2 of the Criminal Code. In Hauser, a majority of this Court found that the Parliament of Canada had the power to authorize the Attorney General of Canada to prefer indictments for a breach of the Narcotic Control Act, and it held unanimously that the Parliament of Canada could authorize the Attorney General of Canada to conduct proceedings instituted at the instance of the Government of Canada in respect of any breach or conspiracy to commit a breach of a statute of the Parliament of Canada, other than the Criminal Code. It is true that in the case at bar the charge against the accused was that of conspiracy under s. 423 of the Criminal Code, but it is clear that, had it wished to do so, Parliament could have provided for a conspiracy to commit a breach of the Narcotic Control Act itself. This course was not necessary in view of the provision contained in s. 115(2) of the Criminal Code. Additionally, s. 27(2) of the Interpretation Act provides essentially that if Parliament can give the Attorney General authority to institute proceedings for the enforcement of a federal statute, it is necessarily incidental that, for the proper enforcement of such an Act, it can also institute proceedings for a conspiracy to commit a breach of that Act. There is no sound reason for now reconsidering the judgment in Hauser and reversing it.

R. v. Hauser, [1979] 1 S.C.R. 984, applied; Cotroni v. Attorney General of Canada, [1976] 1 S.C.R. 219; Attorney General of Canada v. Higbie et al., [1945] S.C.R. 385, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec[1], quashing the indictment and reversing the guilty verdict against the accused. Appeal allowed.

Réjean Paul, Q.C., for the appellant.

Maurice Leblanc, for the respondent.

Yves Berthiaume, for the Attorney General of Quebec.

D.W. Mundell, Q.C., for the Attorney General for Ontario.

H. Hazen Strange, Q.C., and Patricia L. Cumming, for the Attorney General for New Brunswick.

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L. Lindholm, for the Attorney General of British Columbia.

W. Henkel, Q.C., for the Attorney General for Alberta.

J.A. Nesbitt, Q.C., for the Attorney General of Newfoundland.

The judgment of the Court was delivered by

MARTLAND J.—The issue in this appeal is as to whether or not the Attorney General of Canada has the power to institute a prosecution against the appellant for having conspired with others to import drugs in contravention of subs. 5(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1, which provides:

Except as authorized by this Act or the regulations, no person shall import into Canada or export from Canada any narcotic.

The indictment charged that the appellant:

[TRANSLATION] Between the 22nd day of March 1975 and the 25th day of April 1976 unlawfully did conspire with Michel Véronneau, Jean-Claude Pomerleau, Paul Pomerleau, Normand Pomerleau, Buddy Wells, Amedh Hassan Chairi, Robert Barbeau, Claude Ménard, and with persons unknown to this day to commit an indictable offence, namely to import narcotics into Canada, namely about 50 pounds of hashish (Cannabis resin) contrary to section 5(1) of the Narcotic Control Act, R.S.C. 1970, chap. N-1, committing thereby an indictable offence contrary to section 423(1) of the Criminal Code.

The indictment was preferred by the Attorney General for Canada and signed by his agent. Following a lengthy trial, the appellant was convicted and sentenced to a term of imprisonment for eight and one-half years.

The appellant appealed to the Court of Appeal for Quebec and, before that Court, raised as a ground of appeal that the indictment was a nullity because the Attorney General for Canada did not have the right to prefer the indictment. It was the appellant’s contention that only the Attorney General for Quebec had that right. The Court of Appeal allowed the appeal upon this ground, and

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so did not find it necessary to consider the other grounds of appeal. At the time that the judgment of the Court of Appeal was rendered, the judgment of this Court in R. v. Hauser[2] had not been delivered.

The right of the Attorney General of Canada to institute these proceedings depends upon the definition of “Attorney General” contained in s. 2 of the Criminal Code. That definition is as follows:

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

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

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

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

In the Hauser case, the accused had been charged on two counts: (1) of possession of cannabis resin for the purpose of trafficking and (2) of possession of cannabis for the purpose of trafficking. The indictment had been signed by an agent of the Attorney General of Canada. It was contended on behalf of the accused that the enactment of para. (b) of the definition of “Attorney General” was ultra vires of the Parliament of Canada. The constitutional question was settled by the Chief Justice of this Court in these terms:

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

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

(2) to have the conduct of proceedings instituted at the instance of the Government of Canada in respect of a violation or conspiracy to violate any Act of the

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Parliament of Canada or regulations made thereunder other than the Criminal Code?

(Hereinafter referred to as the “first question” and the “second question”.)

The submission of the accused, supported by nine provincial attorneys general, was that the proceedings were criminal in nature and, therefore, could only be instituted by a provincial attorney general. It was contended that this limitation of federal power was by reason of s. 92(14) of the British North America Act (B.N.A. Act) which gave to the provincial legislatures exclusive power to legislate in relation to the administration of justice both criminal and civil in the province.

The position taken by the Attorney General of Canada was that the institution of criminal proceedings was within the power of the Attorney General of Canada by virtue of s. 91(27) of the B.N.A. Act which gave to the federal Parliament power to legislate in relation to criminal law and procedure in criminal matters. In any event, the proceedings in question were not brought under the Criminal Code, but were brought in respect of a violation of a federal statute (the Narcotic Control Act) other than the Criminal Code, as provided in para. (b) of the definition of “Attorney General”.

The appeal was heard by seven judges in this Court. There was a division of opinion with respect to the first question. Pigeon J., speaking for himself and three other members of the Court, answered in the affirmative on the ground that the Narcotic Control Act was not enacted pursuant to s. 91 (27) of the B.N.A. Act (criminal law) but was enacted under the general residual power in s. 91 (peace, order and good government). He expressed the view that the constitutional question, as worded, did not put in issue the broad proposition submitted by the Attorney General of Canada, i.e. complete federal legislative authority over the conduct of all criminal proceedings.

Spence J. agreed with the contention of the Attorney General of Canada as to the interpreta-

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tion of s. 91(27) of the B.N.A. Act. He also held that the provincial power under s. 92(14) was limited by the words “in the province” and did not include the enforcement and prosecution of breaches of federal statutes. Accordingly, he answered the first question in the affirmative.

The reasons of the other two members of the Court were delivered by Dickson J. whose view was that the Narcotic Control Act was, in pith and substance, criminal law and that, in consequence, provincial supervisory control was maintained under s. 92(14) of the B.N.A. Act in respect of the prosecution of offences under the Narcotic Control Act. He was of the opinion that the first question should be answered in the negative.

In respect of the answer to the first question, the disagreement between the reasons of Pigeon J. and Dickson J. was as to whether the Narcotic Control Act depended for its constitutional validity upon s. 91(27) of the B.N.A. Act or upon some other federal power.

In the result, the issue raised in the first questions was answered in the affirmative by a majority of five to two.

The second question did not relate specifically, as did the first question, to the Narcotic Control Act. By its terms it raised the general question as to whether Parliament had the constitutional authority to enact para. (b) of the definition of “Attorney General” in the Criminal Code.

Pigeon J., for himself and three other members of the Court, answered this question as follows:

Yes, in respect of a violation or conspiracy to violate any Act of the Parliament of Canada or regulations made thereunder the constitutional validity of which does not depend upon head 27 of s. 91 of the British North America Act, no opinion being expressed whether the competence of the Parliament of Canada extends beyond that point.

Spence J. answered the second question in the affirmative.

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Dickson J., for himself and another member of the Court, answered this question as follows:

(2) It is within the competence of the Parliament of Canada to enact legislation, as in s. 2 of the Criminal Code, to authorize the Attorney General of Canada, or his agent, to act as the “Attorney General”, and indeed the only “Attorney General”, in respect of a violation or conspiracy to violate an Act of Parliament enacted under any head of power in s. 91 of the British North America Act, other than head 27 relating to the criminal law power.

The Hauser case has decided that in respect of the enforcement of federal statutes, whose constitutional validity does not depend upon s. 91(27) of the B.N.A. Act, the Attorney General of Canada has the right to initiate proceedings for a violation or a conspiracy to violate such statute, and a majority of the Court has decided that the Narcotic Control Act is such a statute.

The Attorney General of Canada contends that the judgment in the Hauser case should govern the disposition of this appeal.

The respondent and the provincial attorneys general who were interveners contend that the Hauser case is not conclusive. It was argued that the Hauser case involved an alleged violation of the Narcotic Control Act and was not concerned with a conspiracy to violate that Act. It was submitted that the answer given unanimously to the second question, in so far as it dealt with a conspiracy to violate, was obiter and without binding effect. The argument is that in the present case the respondent was charged with having committed a criminal act in breach of para. 423(1)(d) of the Criminal Code, which is an offence separate and distinct from the commission of the offence to which the conspiracy relates. As the offence charged is an offence under the Criminal Code, the Attorney General of Canada does not have authority to institute proceedings in respect of it.

I am not in agreement with these contentions.

It is clear that the second question formulated by the Chief Justice put in issue the power of the Attorney General of Canada to have the conduct

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of proceedings instituted at the instance of the Government of Canada in respect of any conspiracy to violate a federal statute other than the Criminal Code. That question was answered unanimously in the affirmative in respect of statutes whose validity was not dependent upon s. 91(27) of the B.N.A. Act.

The substance of the answer given to the question is that Parliament can provide for the enforcement of such statutes. This power includes the institution and carriage of proceedings for that purpose.

It is true that the charge against the respondent was for conspiracy under para. 423(1)(d) of the Criminal Code but it is clear that, had it wished to do so, Parliament could have provided for a conspiracy to violate the Act in the Narcotic Control Act itself, as it has done in para. 239(1)(e) of the Income Tax Act. This course was not necessary in view of the provision contained in subs. 115(2) of the Criminal Code. Section 115 provides:

115. (1) Every one who, without lawful excuse contravenes an Act of the Parliament of Canada by wilfully doing anything that it forbids or by wilfully omitting to do anything that it requires to be done is, unless some penalty or punishment is expressly provided by law, guilty of an indictable offence and is liable to imprisonment for two years.

(2) Any proceedings in respect of a contravention of or conspiracy to contravene an Act mentioned in subsection (1), other than this Act, may be instituted at the instance of the Government of Canada and conducted by or on behalf of that Government.

The provision contained in subs. (2) has the same effect as if it had been specifically enacted, in substance, in the Narcotic Control Act. The mere fact that it appears as a general provision in the Criminal Code does not affect its constitutional validity.

Reference may also be made to subs. 27(2) of the Interpretation Act, R.S.C. 1970, c. I-23:

27. (2) All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of the Criminal Code relating to summary conviction offences apply to all other offences created by an enactment,

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except to the extent that the enactment otherwise provides.

“Enactment” is defined as an Act of the Parliament of Canada, or a regulation.

The essence of the matter is that if Parliament can give to the Attorney General of Canada authority to institute proceedings for the enforcement of a federal statute, it is necessarily incidental that, for the proper enforcement of such an Act, it can also institute proceedings for a conspiracy to violate that Act.

In considering this issue, I do not agree with the contention of the respondent that we should consider the charge made against the respondent of conspiring to import narcotics without reference to the offence, i.e. the unlawful importation of narcotics, to which the conspiracy relates. While it is true that conspiracy is, in itself, a crime distinct from the unlawful act to which it relates, we are entitled, in dealing with the constitutional issue before us, to give consideration to the nature of the conspiracy.

The nature of a conspiracy to traffic in narcotics was considered by this Court in Cotroni v. Attorney General of Canada[3]. That case involved the validity of a warrant of committal under the Extradition Act, R.S.C. 1970, c. E-21. The charge against the appellant in the United States was for conspiracy to import a narcotic drug. It was contended that conspiring to import a narcotic drug was not listed in Schedule I to the Extradition Act although certain other conspiracies were so listed. Extradition crimes were defined in s. 2 of the Act:

“extradition crime” may mean any crime that, if committed in Canada, or within Canadian jurisdiction, would be one of the crimes described in Schedule I; and, in the application of this Act to the case of any extradition arrangement, “extradition crime” means any crime described in such arrangement, whether or not it is comprised in that Schedule;

By a Supplementary Convention in 1925, there was added a classification, “Crimes and offences against the laws for the suppression of the traffic

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in narcotics”. This convention was an “extradition arrangement” within the meaning of the definition in s. 2. The question in issue was as to whether a conspiracy to import a narcotic was within the classification defined in the convention. Spence J., who delivered the judgment of this Court, said, at pp. 222-23:

I am of the opinion that it matters not whether the particular indictment, had it been laid in Canada, would have been laid under the provisions of the Criminal Code or the Narcotic Control Act or in fact any other statute. The test is what is the essence of the crime charged. I am also of the opinion that the essence of the crime charged in the indictment by the United States Grand Jury was and only could be for a crime against the laws for the suppression of the traffic in narcotics.

It was submitted in argument that the answer to the second question was merely an opinion and did not have binding effect. The answer made was in respect of a constitutional issue raised in the proceedings. It is certainly entitled to the same weight as an answer given to a question posed in a reference to the Court and, as to that, Rinfret C.J. in Attorney General of Canada v. Higbie et al.[4], after referring to a judgment of this Court, said at p. 403:

It is needless to mention here that, although this was not a judgment in the true sense of the word, but merely what is sometimes referred to as an opinion made in a Reference to this Court by the Governor General in Council as provided for by section 55 of the Supreme Court Act and the special jurisdiction therein given to this Court, we should regard an opinion of that kind as binding upon this Court and, moreover, one which, in the particular circumstances and in view of the wide experience in these matters which must be recognized to Mr. Justice Newcombe, cannot be held but as having the greatest weight and authority.

Finally, we were urged in argument to reconsider and reverse our judgment in the Hauser case. That case was decided on May 1, 1979, after a full argument in which the attorneys general of nine provinces participated. In my opinion, there is no sound reason for now reversing it.

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I would allow the appeal and set aside the judgment of the Court of Appeal. As it appears that the respondent had other grounds of appeal besides the one considered in this Court and not dealt with by the Court of Appeal, I would return the case to the Court of Appeal for consideration of the respondent’s other grounds of appeal.

Appeal allowed.

Solicitor for the appellant: Réjean F. Paul, Montreal.

Solicitor for the respondent: Maurice Leblanc, Montreal.

Solicitor for the Attorney General of Quebec-Yves Berthiaume, Montreal.

Solicitor for the Attorney General for Ontario: Allan Leal, Toronto.

Solicitor for the Attorney General for New-Brunswick: Gordon F. Gregory, Fredericton.

Solicitor for the Attorney General of British Columbia: Richard Vogel, Victoria.

Solicitor for the Attorney General for Alberta: William Henkel, Edmonton.

Solicitor for the Attorney General of Newfoundland: James A. Nesbitt, St. Johns.