Notes of Cases - Jurisprudence (original) (raw)

The primary issue in the two cases was whether the Attorney-General of Canada was competent to conduct criminal proceedings. However, the cases also provide the opportunity for reassessing the scope of Parliament's authority under section 91(2) of the Constitution Act, 1867, and it is on this aspect of the cases I propose to comment. I will therefore deal with the conduct of criminal proceedings only to the extent that that is necessary to provide a background for the inferences that may be drawn about the trade and commerce power under section 91(2). In Canadian National Transportation, the accused were charged with conspiracy pursuant to section 32(1)(c) of the Combines Investigation Act.3 The federal Attorney-General assumed the prosecution pursuant to section 15(2) of that Act and the accused applied for a prohibition order. In K-ipps Pharmacy, the accused challenged the authority of the federal Attorney-General to prosecute in respect of alleged violations of sections 8 and 9 of the Food and Drugs Act .' These sections, respectively, prohibited selling drugs manufactured or stored under unsanitary conditions and promoting drugs in a misleading manner. Laskin C .J .C ., writing for the majority in Canadian National Transportation, dealt with section 32(1)(c) of the Combines Investigation Acts as criminal law, and held that section 91(27)6 of the Constitution Act, 1867 comprehended the conduct of criminal proceedings. Thus he did not have to decide whether section 32(1)(c) could also be upheld on trade and