Supreme Court of Canada
Laporte v. College of Pharmacists (Québec), [1976] 1 S.C.R. 101
Date: 1974-10-23
Dr. Sylvain Laporte Appellant;
and
College of Pharmacists of the Province of Quebec Respondent.
1974: May 13, 14; 1974: October 23.
Present: Laskin C.J. and Spence, Pigeon, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, PROVINCE OF QUEBEC
Physicians and surgeons—Sale of medication to patient for duration of treatment—Whether a legal act—Medical Act, R.S.Q. 1964, c. 249, s. 59—Pharmacy Act, R.S.Q. 1964, c. 255, ss. 21, 59.
The respondent laid an information against the appellant charging him with unlawfully selling, through a person in his employ, a drug, contrary to the Pharmacy Act of Quebec. This information was dismissed in the Court of Sessions of the Peace, but the acquittal was reversed by the Court of Queen’s Bench, sitting at first instance in a trial de novo. Leave to appeal to this Court was granted.
Held: The appeal should be allowed.
The principle involved here was laid down by this Court in Pauze v. Gauvin, [1954] S.C.R. 15: the statutes creating professional monopolies, sanctioned by law, access to which is controlled and which protect their members in good standing who meet the required conditions against any competition, must be strictly applied. Anything which is not clearly prohibited may be done with impunity by anyone not a member of these closed associations. There are no restrictions in s.59 of the Pharmacy Act or s.59 of the Medical Act which limit to a very short period the right of doctors to supply “medicines”. In the absence of any such provisions, a doctor is entitled to supply the medicine indicated by the treatment and require compensation from the patient.
Pauze v. Gauvin, [1954] S.C.R. 15, referred to.
APPEAL from a judgment of the Court of Queen’s Bench, Province of Quebec, reversing the acquittal by the Court of Sessions of the Peace. Appeal allowed.
Claude Dugas, Q.C., for the appellant.
Louise Mailhot and Mario Du Mesnil, for the respondent.
[Page 102]
The judgment of the Court was delivered by
DE GRANDPRÉ J.—On November 22, 1968, respondent, acting through its Registrar, laid an information against appellant, the substantive portion of which reads as follows:
[TRANSLATION] did, on or about December 27, 1967, at Joliette, district of Joliette, through a person in his employ, unlawfully sell a drug, to wit: Elavil tablets, 10 mg., the whole contrary to the Pharmacy Act of Quebec as amended.
This information was dismissed by Judge Armand Sylvestre of the Court of Sessions of the Peace on December 2, 1969, but the acquittal was reversed on July 9, 1971, by the Court of Queen’s Bench, sitting at first instance in a trial de novo. Leave to appeal from that judgment was granted by this Court on October 5, 1971.
The question that arises is as follows: did appellant have the right, in December 1967, to give his patient a drug for the duration of his treatment, that is about one month, require the patient to reimburse him for its cost, and add thereto “a portion for profit and expenses” (the words used by Dr. Laporte in his testimony)?
For an answer to that question reference must be made to the laws in force at the time, namely the Medical Act, R.S.Q. 1964, c. 249 and the Pharmacy Act, R.S.Q. 1964, c. 255. It should be immediately noted that the position was appreciably altered by the far-reaching changes introduced in 1973, and the subject is now regulated by cc. 46 (Medical Act) and 51 (Pharmacy Act) of the Statutes of Quebec.
This question must be considered in the light of the principle laid down by this Court in Pauze v. Gauvin[1]. In particular I adopt the following passage from the reasons of Taschereau J., as he then was (at p. 18):
[TRANSLATION] The statutes creating these professional monopolies, sanctioned by law, access to which is controlled and which protect their members in good standing who meet the required conditions against any competition, must however be strictly applied. Anything which is not clearly prohibited may be done with
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impunity by anyone not a member of these closed associations.
Before turning to consideration of this legislation, it should be noted that the professions of medicine and pharmacy were for a long time carried on simultaneously. By way of example I would refer to the beginning of s. 16 of c. 71 of the Revised Statutes of Lower Canada, 1860:
Except such persons as may lawfully practise physic in Lower Canada, no person whatsoever shall, on any pretence, sell or distribute medicines by retail…
Even with the granting of new powers to the Pharmaceutical Association of the Province of Quebec in 1875, by 38 Vict., c. 37, the position of doctors was not altered (see s. 15). It was not until 1953 that the right of doctors to practise pharmacy was substantially altered, and the question here is whether that modification operated to prohibit doctors in general, and appellant in particular, from performing the act with which Dr. Laporte is charged in the information.
Reference must be made here to the relevant sections of the Medical Act:
44. Without limiting the meaning of the words “practice of medicine”, the giving of medical consultations, or giving or prescribing of medicines, attending at confinements, treating medical or surgical affections and habitually and continuously following the treatment of diseases or medical or surgical affections, either by giving medicine or by making use of mechanical, physical or chemical processes or of radiotherapy or of X‑rays, shall constitute the practice of medicine.
51. Every physician may keep the medicines, drugs and the medical, chemical or mechanical apparatus which he may require, and may use the same in the practice of his profession.
59. (1) No one shall have the right to sue for or recover any fees or compensation for any medical or surgical opinion, for professional services, operations, prescriptions, medicine or apparatus he may have prescribed or furnished, or to avail himself of any right or privilege conferred by this act, unless he is registered in the Quebec Medical Register and has paid his annual contributions to the College.
[Page 104]
It should be noted here that the substance of these sections has not altered during the course of the last half century.
In the case of the Pharmacy Act, the principle is stated in the first paragraph of s. 21. Sections 22 and 23 lay down special rules which do not apply here, except in so far as they may clarify the thinking of the legislator.
21. (1) No person shall keep open a shop for the retailing, dispensing or compounding of the poisons contemplated by this act, or of drugs within the meaning of paragraph 9 of section 1, or sell or attempt to sell any of such poisons or drugs or any medicinal preparation containing any of the same, or engage in the dispensing of prescriptions, or use or assume the title of pharmacist, chemist and druggist, druggist apothecary, dispensing or pharmaceutical chemist, or any other title bearing a similar interpretation, or use any title which would lead to the belief that he is a pharmacist, or use the words “pharmacy”, “proprietary or patent medicine stores” or “pharmaceutical products”, or use abbreviations of the above mentioned words or designs, plates or vignettes leading to the belief that he is a pharmacist unless he is a person registered in accordance with the provisions of this act.
22. Any physician registered as a member of the College of Physicians and Surgeons of the Province of Quebec may, without any prejudice to his privileges as a physician, keep a pharmacy in a municipality where none is kept by a pharmacist when he begins to keep it, provided he pays the dues and the operation permit required of a licentiate of pharmacy. Such physician shall then be recognized as a member of the College of Pharmacists of the Province of Quebec and as such shall be subject to the provisions of this act and of the by-laws of the council, but he cannot vote or be eligible to the Council of the College or to any office.
Every physician who was keeping a pharmacy on the 1st of April 1964 shall benefit by the above provision. R.S. 1941, c. 267, s. 22; 8 Geo. VI, c. 42, s. 12; 1-2 Eliz. II, c. 55, s. 23; 12-13 Eliz. II, c. 55, s. 12.
23. Notwithstanding the provisions of this act, oil the island of Montreal, in the city of Quebec and within a radius of five miles from their limits and in any city or town of more than 7,000 souls, only a licentiate of pharmacy may carry on a business as a pharmacist.
This section shall not apply to registered physicians practising the profession of pharmacist on the 26th of February 1953, or to registered physicians practising
[Page 105]
such profession on the 1st of July 1964 in a city or town which had a population when they were registered of less thant 20,000 souls or to registered physicians practising such profession in a city or town which had a population when they were registered of less than 7,000 souls. R.S. 1941, c. 267, s. 23; 1-2 Eliz. II, c. 55, s. 24; 12-13 Eliz. II, c. 55, s. 13.
By the terms of the final paragraph of s. 20,
(2) A hospital may supply drugs and poisons only to the patients hospitalized or under treatment in such hospital. R.S. 1941, c. 267, s. 20; 1-2 Eliz. II, c. 55, s. 20; 12-13 Eliz. II, c. 55, s. 11.
Finally, reference must be made to s. 59:
59. Saving any express provision to the contrary, nothing in this act shall interfere with the privileges conferred upon physicians or upon dentists by the various acts relating to the practice of the said professions in this Province, or with the business of wholesale drug dealers or that of dealers in photographic supplies, in the ordinary course of wholesale trade, or manufacturers of chemical preparations or with duly licensed veterinary surgeons or professional chemists, in their practice or business as such, unless the drugs or poisons contemplated by this act are sold for therapeutic purposes. R.S. 1941, c. 267, s. 59; 1-2 Eliz. II, c. 55, s. 47.
The judgment a quo reached the conclusion that, in short, a doctor is only entitled to give his patient the medicine necessary to begin a treatment, until the patient has an opportunity to go to a pharmacist and purchase what is required to continue it. Paré J. observed:
[TRANSLATION] In brief, the Act assented to on February 26, 1953, 1-2 Eliz. II, c. 55, on the one hand removes the exception in s. 21 which allowed doctors to sell drugs, and on the other hand, in s. 59, prohibits them from doing so for therapeutic purposes. It maintains their privileges of issuing prescriptions, treating patients and giving them the necessary medicines, for a financial return. On the other hand, a doctor may no longer trade in medicine, even within the pursuit of his profession. He may only keep it in stock to be administered as required.
With respect, I cannot subscribe to that point of view.
[Page 106]
The provisions relied on by respondent, read in the light of the principle stated in the Gauvin decision, referred to above, do not in my view support this conclusion, especially if they are considered in the light of the legislation preceding that under review.
Section 59 of the Pharmacy Act has remained essentially unchanged since 1875 (38 Vict, c. 37, s. 24), except that the words “unless the drugs or poisons contemplated by this act are sold for therepeutic purposes” were added by 1-2 Eliz. II, c. 55, s.47. Does this clearly indicate that a doctor may no longer sell medicines as part of his treatment, contrary to the situation up to that time? I think not, especially since, under s. 59 of the Medical Act, a doctor may recover compensation for medicine he may have “furnished” (fournis). This verb (fournir) is used in the second paragraph of s. 20 of the Pharmacy Act, according to which a hospital may “supply” (fournir) drugs to its patients, even if they are not hospitalized. I see nothing in these provisions which limits to a very short period the right of doctors to supply “medicines”. In the absence of any clearly restrictive provision, a doctor is entitled to supply the medicine indicated by the treatment and require compensation from the patient.
It does not seem necessary to examine the legislation any further. I would, however, add one word regarding the form of the information. The argument in this Court clearly indicated that appellant and respondent felt it was material to determine whether the drug was issued by the doctor himself or “through a person in his employ”. In fact the information refers to sale through an intermediary, while the evidence presented by respondent’s investigator proves the opposite. It is true that during his testimony the investigator produced the notes made by him in the course of his inquiry, notes which refer to sale through an intermediary, but those notes are not proof of their contents and do not add to the evidence. In the circumstances, and if it were necessary in order to dispose of the case, I would be inclined to hold that the offence with which appellant is charged has not been made out.
[Page 107]
For these reasons I would allow the appeal, quash the judgment of the Court of Queen’s Bench, acquit appellant and award him costs in all Courts.
Appeal allowed with costs in all Courts.
Solicitors for the appellant: Dugas & Dugas, Joliette.
Solicitors for the respondent: Du Mesnil, Mailhot & Pomminville, Montreal.