R. v. Hauser and Alberta (Attorney General), (1977) 7 A.R. 89 (CA)

• Judge: McGillivray, McDermid, Lieberman, Haddad and Morrow, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 26, 1977
• Citations: (1977), 7 A.R. 89 (CA)

R. v. Hauser (1977), 7 A.R. 89 (CA)

MLB headnote and full text

R. v. Hauser and Attorney General of Alberta (Intervenant)

Indexed As: R. v. Hauser and Alberta (Attorney General)

Alberta Supreme Court

Appellate Division

McGillivray, McDermid, Lieberman, Haddad and Morrow, JJ.A.

October 26, 1977.

Summary:

This case arose out of a charge of possession of a narcotic for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act. The prosecution was commenced in Alberta by the Attorney General for Canada without the consent of the Attorney General of Alberta. At trial the accused challenged the constitutional validity of the authority to prosecute granted to the Attorney General of Canada under s. 2 of the Criminal Code of Canada. The Attorney General for Alberta intervened and supported the accused's motion for dismissal on the ground that the conduct and supervision of criminal prosecutions before the criminal courts is a matter of the administration of justice in a province under s. 92(14) of the British North America Act. The accused's motion was dismissed by the trial court - reported elsewhere at 7 A.R. 240.

On appeal to the Alberta Court of Appeal the appeal was allowed, the decision of the trial court was set aside, s. 2 of the Criminal Code of Canada was declared invalid and an order of prohibition was granted which prohibited further proceedings in this case. The Alberta Court of Appeal held that the conduct and supervision of criminal prosecutions before criminal courts is a provincial power. The Alberta Court of Appeal stated that the prosecutorial role is a matter of the administration of justice in a province under s. 92(14) of the British North America Act - See paragraphs 1 to 158.

McDermid and Haddad, JJ.A., dissenting, in the Alberta Court of Appeal, would have dismissed the appeal. McDermid, J.A., stated that the Attorney General for Canada may undertake a prosecution for a criminal offence where an attorney general of a province fails to act - See paragraph 196.

Constitutional Law - Topic 7402

Enumeration in s. 92 of the British North America Act - Administration of justice (s. 92(14)) - General principles - Extent of subject matter - Conduct and supervision of criminal prosecutions - The Attorney General of Canada, without the consent of the Attorney General for Alberta, commenced a prosecution in Alberta for the possession of marijuana for the purposes of trafficking contrary to the federal Narcotic Control Act - The accused and the Attorney General for Alberta challenged the statutory authority to prosecute granted to the Attorney General of Canada under s. 2 of the Criminal Code of Canada - The Alberta Court of Appeal declared that s. 2 of the Criminal Code of Canada was invalid and beyond the legislative competence of the Parliament of Canada - S. 2 of the Criminal Code defined "Attorney General" as the Attorney General for Canada - The Alberta Court of Appeal granted the accused an order of prohibition - The Alberta Court of Appeal held that the conduct and supervision of criminal prosecutions before criminal courts is a provincial power because the prosecutorial role is a matter of the administration of justice in a province under s. 92(14) of the British North America Act - See paragraphs 8, 26, 28, 49 and 158.

Constitutional Law - Topic 6471

Enumeration in s. 91 of the British North America Act - Criminal Law (s. 91(27)) - What constitutes procedure in criminal matters - The Alberta Court of Appeal stated that rules of practice, evidence, determination of a court to hear matters, and provisions for appeal are matters of criminal procedure under s. 91(27) but that "the personnel of who is to prosecute, and in what matter, and when" falls under the provincial heading of administration of justice - See paragraphs 26 an 27.

Practice - Topic 9100

Appeals - Supreme Court of Canada - Effect of a refusal by the Supreme Court of Canada to grant leave to appeal - The Alberta Court of Appeal stated that the Supreme Court of Canada when it refuses to grant leave to appeal does not pass on the corrections or otherwise of the lower court opinion in respect of which leave is sought - See paragraph 58.

Crown - Topic 768

Duties of ministers - Duties of an attorney general - The Alberta Court of Appeal referred to the functions and duties of an attorney general - See paragraphs 11 to 22.

Barristers and Solicitors - Topic 1803

The prosecutor - Duties of the prosecutor - The Alberta Court of Appeal referred to the position of and the duties of a prosecutor in conducting a criminal prosecution - See paragraphs 20 to 22.

Constitutional Law - Topic 6440

Enumeration in s. 91 of the British North America Act - Criminal law - What constitutes criminal law - The Alberta Court of Appeal referred to the meaning of the criminal law - See paragraph 100.

Constitutional Law - Topic 1048

Interpretation of the British North America Act - Presumptions - Presumptions respecting discharge of duties by parties to the Canadian Constitution - The Alberta Court of Appeal stated that speculation that a province will not carry out its constitutional duty does not constitute a basis of interpretation - The Alberta Court of Appeal stated that courts must assume that parties to the constitution will discharge their duties - See paragraphs 151.

Constitutional Law - Topic 1003

Interpretation of the British North America Act - General principles - Intention of the parties respecting the division of legislative powers - The Alberta Court of Appeal stated that the intention of the parties to the Canadian Constitution can best be determined from the construction placed on terms by the courts in cases heard shortly after confederation - See paragraph 154.

Cases Noticed:

R. v. Smythe, [1971] 2 O.R. 209, folld. [para. 11].

Attorney General v. Gouriet; Post Office Engineering Union v. Gouriet; Union of Post Office Workers v. Gouriet, [1977] 3 W.L.R. 300, folld. [para. 16].

R. v. Chamandy (1934), 61 C.C.C. 224, folld. [para. 20].

Boucher v. The Queen, [1955] S.C.R. 16; 110 C.C.C. 263, folld. [para. 21].

R. v. St. Louis (1898), 1 C.C.C. 141, folld. [paras. 28, 95].

R. v. Pelletier, [1974] 4 O.R.(2d) 677; 28 C.R.N.S. 129, folld. [paras. 29, 57]; refd to. [paras. 84, 189].

Di Iorio and Fontaine v. Warden of Common Jail of Montreal and Brunet et al. (1976), 8 N.R. 361; 35 C.R.N.S. 57, folld. [paras. 30, 48, 143, 167]; dist. [para. 180].

Attorney General for Dominion of Canada v. Attorney General for the Province of Ontario, [1898] A.C. 247, folld. [para. 31].

Reference The Adoption Act of Ontario, [1938] S.C.R. 398, folld. [paras. 32, 98].

R. v. Yuhasz, 128 C.C.C. 172, folld. [paras. 33, 99].

R. v. McGavin Bakeries et al. (1950), 98 C.C.C. 1, folld. [para. 34].

Proprietary Articles Trade Association et al. v. Attorney General for Canada et al., [1931] A.C. 310, [1931] 2 D.L.R.; 55 C.C.C. 241, refd to. [para. 35]; folld. [paras. 100, 179, 193].

Ross v. The Registrar of Motor Vehicles and the Attorney General for Ontario, 1 N.R. 9; [1975] 1 S.C.R. 5, folld. [para. 39].

Reference Re Dominion Trade and Industry Commission Act, [1936] S.C.R. 379; 66 C.C.C. 177; [1936] 3 D.L.R. 607, folld. [para. 42]; refd to. [paras. 105, 177].

R. v. Collins, [1973] 1 O.R. 510, not folld. [para. 50]; refd to. [para. 83].

Edinburgh Developments Ltd. et al. v. Vanderlaan et al. (1975), 3 N.R. 533, folld. [para. 58].

R. v. Miller (1975), 27 C.C.C.(2d) 438, refd to. [paras. 64, 86, 111]; folld. [para. 190].

R. v. Miller and Thomas, [1976] 1 W.W.R. 97, refd to. [paras. 64, 87].

R. v. Lloyd Kent Dunn et al., [1977] 5 W.W.R. 454, not folld. [paras. 65, 112].

Re Collins and The Queen, [1973] 2 O.R. 301, refd to. [para. 83].

R. v. Knechtel, [1975] 4 W.W.R. 203, refd to. [paras. 85, 110].

R. v. Hancock and Proulx (1975), 32 C.R.N.S. 81, refd to. [para. 80].

Attorney General v. The Niagara Falls International Bridge Co. (1873), 20 Grants Chancery Reports 34, folld. [para. 94].

Re Public Inquires Act, [1919] 3 W.W.R. 115, folld. [para. 96].

Kalick v. The King (1921), 61 S.C.R. 175, folld. [para. 97].

R. v. McGavin Bakeries et al. (1950), 98 C.C.C. 1, folld. [para. 99].

O'Grady v. Sparling (1960), 128 C.C.C. 1, folld. [para. 102].

Re Validity of the Combines Investigation Act, [1929] S.C.R. 409, refd to. [para. 118].

Reference Re. Dominion Trade and Industry Commission Act, 1935, [1937] 1 D.L.R. 702, refd to. [para. 141].

Re Prohibitory Liquor Laws (1894), 24 S.C.R. 170, folld. [para. 154].

Slack v. Leeds Industrial, [1924] 2 Ch. D. 475, folld. [para. 157].

R. v. Ettridge, [1909] 2 K.B. 24, folld. [para. 157].

Industrial Acceptance Corp. Ltd. v. The Queen, [1953] 2 S.C.R. 273, refd to. [para. 172].

Re Criminal Code, 43 S.C.R. 457, refd to. [para. 176].

Miller v. The Queen, 30 C.R.N.S. 372, folld. [para. 189].

Statutes Noticed:

British North America Act 1867, sect. 91(27) [para. 93], sect. 92(14) [para. 93].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 2 [para. 6].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 27(2) [paras. 77 and 90].

Authors and Works Noticed:

McRuer, Inquiry into Civil Rights in Ontario, vol. 2, page 937 [para. 149].

Laskin, Canadian Constitutional Law, 4th ed., page 11 [para. 165].

Holdsworth, History of English Law, vol. 6, page 457 [para. 174].

Stephen, History of the Criminal Law of England, (1883), page 501 [para. 175].

Counsel:

A.M. Harradence, Q.C., and T.C. Semenuk, for the appellant;

I.G. Whitehall, H. Fielding and M. Silverberg, for the respondent,

Ross W. Paisley, Q.C., and William Henkel, for the intervenant.

The appeal was heard by McGILLIVRAY, C.J.A., McDERMID, LIEBERMAN, HADDAD and MORROW, JJ.A., at Calgary, Alberta. The judgment of the Alberta Court of Appeal was delivered on October 26, 1977 at Calgary, Alberta and the following opinions were filed:

McGILLIVRAY, C.J.A. - see paragraphs 1 to 69.

MORROW, J.A. - see paragraphs 70 to 158.

McDERMID, J.A., dissenting - see paragraphs 159 to 199.

LIEBERMAN, J.A., concurred with McGILLIVRAY, C.J.A.

HADDAD, J.A., concurred with McDERMID, J.A.