Canadian Law and Politics - Essay Example

Canadian Law and Politics POLS 3463 Dr. E. Newstadt Peter Misheal 100118704 The parliament and legislatures of the provinces apply sections of the constitution to control the possession and use of non-medical use of drugs (Russell & Leuprecht, 2011). Initially, the powers of criminal law were considered to be the principal source of federal power to regulate the use of drugs. However, in the case of R. v. Hauser, [1979] 1 S.C.R. 984 the supreme court of Canada maintained the constitutionality of the federal Narcotic Control Act under the peace, order, and good governance (P.O.G.G.). P.O.G.G. outlines the doctrines under which the Canadian parliament should execute criminal laws. The position of criminal law authority reversed the earlier decision in the case of Industrial Acceptance Corp. v. The Queen [1953] 2 S.C.R. 273, in which the court had agreed that the Narcotic Control Act was constitutional under criminal power. The proceeding of the case in R. V. Hauser focused on challenging the restrictions to the jurisdiction of federal criminal law. This commentary examines the federal parliamentary legislation and provincial power on criminal laws in Canada and the validity of Narcotic Control Act as discussed in the case of R. V. Hauser. The federal criminal code 1959 empowered the provincial attorneys through provincial court to powers to petition the attorney general or his agent to institute prosecution against the offenders (Roman, 2007). However, the amendment delegated the federal state powers to prosecute offenses under Narcotic Control Act thus causing conflicts concerning the federal and provincial attorneys’ power to prosecute offenders. S.91 (27) defines the federal powers in administration of criminal matters and enforcing criminal law. The constitution does not impose any prohibitions on “federal for a provincial prosecutor in narcotic offenses” (Laskin, 1980, p 564). In R. V. Hauser, the respondent was accused of being in possession of cannabis resin and cannabis (marijuana) for the purpose of trading contrary to the Narcotic Control Act s. 4(2). The summons signed by the agent of Attorney General of Canada. The respondent moved the prohibitions by challenging the legitimacy of the constitution in the definition Attorney General” as stipulated in the in s.2 of the Criminal Code (Roach et al., 2004). The case was terminated in the first hearing, but it gained support under majority decision in the court of appeal in Supreme Court of Alberta. In the appeal issue raised was to challenge the legitimacy of parliament of Canada to make legislations that empower Attorney General or his/her agent to choose summons to for a crime under the Narcotic Control Act (Roach et al., 2004) The other issue was the request to establishment of proceedings at the order of Government of Canada relation to violation of intention to violate the any act of parliament of Canada or any regulation made under the Criminal Code. The definition of the legitimacy of “Attorney General” had an implication that Attorney General of Canada would be responsible for the criminal cases established at the request of the government of Canada and executed on behalf of the government in relation to an offence concerning the statutes other than the Criminal Code (Laskin, 1980, p 567). Therefore, Attorney General of the provinces would be relieved of any power in relation to enactments of such as cases. On head 27 of s.91 of the criminal law, the federal power provides for the imposition of fines for the violation of any federal laws apart from the criminal laws (Russell & Leuprecht, 2011). Various legal cases depict the existence of limitations to the supremacy of criminal laws. Despite request to limit the federal authority over criminal proceedings with purpose to reserve provincial authority over administration of justice in criminal matters some provinces held the opinion to have unlimited federal legislative powers to put on trial offenders of federal legislations that are not subject to constitutional validity under criminal law (head 27 of s. 91) (Roach et al., 2004). The concern as to whether Narcotic Control Act can be categorized as a statute established under the jurisdiction of criminal law it is apparent from its English title that stipulates it as act for the control of drugs (Morton, 2002). It is legislation established under general residual powers to deal with new problems of drug use that were in existence during confederation and cannot be ordinarily classified as remote and private issues (Roach et al., 2004). Therefore, the subject matter of this legislation can be exemplified with emerging issues in Radio Communications (Re Radio Communication, [1932] A.C. 304)” concerning regulations of broadcasting through undertaking programs received and sent. The public can apply the consumer protection law to restrict forms of advertisements the information consumed. The court argued that the matter of law had adequate emerging issues that fall beneath P.O.G.G. Legislative supremacy. Pigeon J. stated that the most essential basics examined when “classifying the Narcotic Control Act as a legislation enacted under the general residual federal power, is that this is essentially legislation adopted to deal with genuinely new problem which did not exist at the time of confederation and clearly cannot be put in the class of matters of a merely local or private nature” (Russell & Leuprecht, 2011). In R. V. Hauser, decision by four against three judges issued that the Narcotic Control Act was to be enacted under the residual power of the federal parliament and not under sec. 91(27) of the British North American Act to make laws for P.O.G .G. of Canada (Hausegger et al., (2014). The decision in R. V. Hauser may have changed the source and scope of federal competence as well as the initiatives for provincial legislative since criminal law, and P.O.G.G. Powers is different in nature. Nevertheless, the decision did not settle the issue of legislative powers of the federal to regulate the use of drugs (Roach et al., 2004). In Re Board of Act, the Privy Council maintained the supremacy was “co-existence with traditional domain of criminal jurisprudence” (Laskin, 1980, p 558). The parliament is not obliged to criminalizing what was criminal at the time of confederation. However, the judicial committee held the validity of the competition of federal legislation it is apparent that sec. 91(27) can sustain legislation to institute new crimes. The federal statutes must hold certain characteristics in order to constitute a valid criminal law (Morton, 2002). For instance, they must impose limitations and fines on those who act contrary to the legislation. This characteristic was backed in the case of Proprietary Articles Trade Associations in which it was examined that prohibitions and fines were sufficient conditions for legislation existed within sec. 91(27). Therefore, the supreme court of Canada issued that the position of the provinces to enforce the penalty was invalid. The court emphasized that the tenacity and form of the law must be examined to establish whether it is criminal law in legal terms (Russell & Leuprecht, 2011). Before enacting criminal law there should be an undesirable or evil consequences upon the society against which the legislation is enacted and the purpose of limitations imposed by the legislation must gain support of the public relative to criminal laws. Any legislation within enumerated heads in s.91 the federal court has the final decision concerning the administrative guidelines, investigation and trial. The parliament utilizes its residual power legislate in enacting Narcotic Control Act thus the Act is not a criminal law under the constitution purposes in order to promote peace and good governance in Canada (Roman, 2007). The Supreme Court under S. 91(14) of British Narcotic Authority Act bestows the administrative of justice in the province under the proficiency of province in administration of civil and criminal cases. In the case of Industrial Acceptance Corporation Ltd. v. The Queen, [1953] 2 S.C.R. 273; the Supreme Court concluded the forfeiture of property used in the commission of drug offenses under the provision of Opium and Narcotic Drug Act as valid criminal law. Dickson J. argued that the application of legislation of Narcotic Control Act and its preceding statutes as an exercise of power bestowed under section s.91 (27) (Laskin, 1980). However, the trial court had ruled that the legislation be instituted to establish a crime and set penalty for its violation. The classification of criminal law seems to relate with policy insertions of restrictive and public injuries embodied in the statute and the relentlessness of the penalties imposed by the statute. The context of legislation that protects the public against injurious elements requiring legislative protections regards the matter of criminal law (Hausegger et al., (2014). The maximum death penalty imposed by Narcotic Control Act does not exceed the penalty under Criminal Code thus it affirms the validity of the Act under s. 91(27). The Act is restrictive, but it directs the regulations of narcotic drugs (Laskin, 1980). In addition, the act was instituted to deal with any emerging problem that was not in existence during confederation and which is not in the category of local or private legislation. In addition, the Act contains prohibitions that forbid the use of drugs as well as the sale or distribution of those drugs in accordance to stipulations of the laws (Hausegger et al., (2014). The Act did not have formal characteristics of criminal law. However, the Canada Temperance Act establishes a remote restriction option that was enacted validly under P.O.G.G. clause (Laskin, 1980). In consideration of the restrictions imposed by the Act, the parliament can distinguish the criminality from what is not criminal and can impose exemptions in its criminal law. The matter of newness is sufficiently addressed by the legislation. Section 91 of the Act grants parliament temporary power of national emergency and permanent power to deal with emerging issues (Morton, 2002). However, the emerging new matters must be different from the ones within enumerated heads of s. 92 which are matters of national interest. The new issues of principally local concern arise within general provincial powers under s. 92 (16) relative to issues of purely private or local nature. The challenge with drug abuse is that it may not pass the test of newness since it could have been established at the time of forming a confederation. The issue is similar to inflation that failed the test of newness in the Anti-Inflation Reference which Beetz J. described as “ancient phenomenon” (Hausegger et al., 2014). The founders of confederation enumerate adequate authority to deal with social issues that were identifiable at that time and delegated unforeseeable issues to residuary powers. As to whether the issue drug abuse was foreseeable in 1867 in Canada the answer is yes it was foreseeable including the addiction to narcotic drugs. However, the social approach regarding the possession and sale of drugs as detrimental and worthy of the penalty may not have been perceived until later. In fact, Pigeon J. in Hauser stipulated that the first statute on narcotic regulation was established by the legislature in 1908 (Laskin, 1980). Therefore, it is possible the classification of newness of drug abuse in Canada was not as ancient as stated by Dickson J. hence it acceptable. If that is the case, the parliament has the mandate to legislate on the new issue not addressed in the confederation. The onus to determine the legislative powers of the parliament in prosecuting criminal offenses is on the Supreme Court. At present the characterization of Narcotic Control Act exists under P.O.G.G. (Roman, 2007). In conclusion, the establishment that legislative issue of Narcotic Control Act exists within. Clause empowers the federal parliament to legislate the issues of the criminal offense even in matters related to provinces. Also, the legislation attributed to P.O.G.G. clause is not subject to substantive prohibitions restricting the enforcement power of criminal law. The legislative matter could be regulatory, prohibitive or punitive, but they must reflect public purpose and that purpose must be perceived as a public evil within s. 91 (27). The Narcotic Control Act has broad legislation beyond drug use. The federal parliament has power to legislate criminal matters and does not have prohibitions imposed by provinces on its legislative authority.   References Laskin, J. B. (1980). Constitutional Authority in Relation to Drugs and Drug Use. Osgood Hall Law Journal. Vol. 18(4): 554-583. Available at Morton, F. L. (Ed.) (2002). Law, Politics and the Judicial Process in Canada, (3rd Ed.). Canada: University of Calgary Press. Hausegger, L., Riddell, T. Q. & Hennigar, M. A. (2014). Canadian Courts: Law, Politics, and Process. Oxford University Press Industrial Acceptance Corp. v. The Queen [1953] 2 S.C.R. 273 R. v. Hauser, [1979] 1 SCR 984, 1979 CanLII 13 (SCC) Radio Communications (Re Radio Communication, [1932] A.C. 304) Roman, C. G. (2007). Illicit Drug Policies, Trafficking and Use the World Over. USA: Lexington Books: 35- 242. Roach, K., Lawrence, F. M., Healy, P. & Trotter, G. T. (2004). Criminal Law and Procedure: Cases and Materials. Emond Montgomery Publications. Russell, P. H. & Leuprecht, C. (Ed.) (2011). Essential Readings in Canadian Constitutional Politics. The University of Toronto Press: 285- 502. Read More