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CASEBOOK

LAW 100

CANADIAN CONSTITUTIONAL LAW

2011 - 2012 PROFESSOR EDINGER FACULTY OF LAW

The materials are exclusively for the use of students enrolled in the Faculty of Law, University of British Columbia, and are not to be reproduced or otherwise redistributed.

TABLE OF CONTENTS

PART I: INTRODUCTION

CHAPTER 1: COLONIAL ORIGINS TO AUTONOMY ...................................................................... 5

The Royal Proclamation, 1763 ..................................................................................................................................6 Colonial Laws Validity Act, 1865 .............................................................................................................................10 Report of the Royal Commission on Dominion-Provincial Relations, 1867-1939 ................................................... 13 Statute of Westminister, 1931 ................................................................................................................................26 Attorney-General for Ontario v. Attorney-General for Canada, 1947 ....................................................................29 Reference re Amendment of the Constitution of Canada, 1982 ............................................................................35 Reference re Secession of Quebec, 1998 ................................................................................................................58

CHAPTER 2: SEPARATION OF POWERS AND THE RULE OF LAW ........................................ 91

Question of Prohibitions, 1607 ...............................................................................................................................91 Question of Royal Proclamation, 1610 ...................................................................................................................93 Attorney General Canada v. Attorney General Ontario (Labour Conventions), 1937 ............................................95 Roncarelli v. Duplessis, 1959 .................................................................................................................................101 Reference re Manitoba Language Rights Act, 1870 ..............................................................................................108 Reference re Remuneration of Provincial Court Judges, 1997 .............................................................................116

PART II: FEDERALISM: DIVISION OF POWERS

CHAPTER 3: VALIDITY .................................................................................................................... 133

3.1 ­ Interpretation ......................................................................................................................................... 134 Edwards v. Attorney General Canada, 1929 .........................................................................................................134 3.2 ­ Peace Order and Good Government........................................................................................................ 146 Russell v. The Queen, 1882 ...................................................................................................................................146 Attorney General Ontario v. Attorney General Canada, 1896 ..............................................................................153 Fort Frances Pulp & Paper v. Manitoba Free Press, 1923 .....................................................................................158 Ontario (Attorney General) v. Canada Temperance Federation, 1946 .................................................................165 Johannesson v. Municipality of West St. Paul .......................................................................................................169 Reference re: Anti-Inflation Act (Canada), 1976 ...................................................................................................176 R. v. Crown Zellerbach Canada Ltd., 1988 .............................................................................................................193 3.3 ­ Criminal Law: Shield and Sword .............................................................................................................. 202 Reference re Validity of Section 5(a) of the Dairy Industry Act, 1949 ..................................................................202 RJR-MacDonald Inc. v. Canada (Attorney General), 1995 .....................................................................................202 R. v. Hydro-Québec, 1997 .....................................................................................................................................224 Canada (Attorney General) v. Montreal (City), 1978 ............................................................................................250 Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), 1987..........................................................................265

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Chatterjee v. Ontario ............................................................................................................................................268 3.4 ­ Regulation of the Economy ..................................................................................................................... 282 Citizens Insurance Co. of Canada v. Parsons, 1881 ...............................................................................................283 Canada v. Eastern Terminal Elevator Co., 1925 ....................................................................................................286 Carnation Co. v. Quebec (Agricultural Marketing Board), 1968 ...........................................................................289 Manitoba (Attorney General) v. Burns Foods Ltd., 1975 ......................................................................................293 Labatt Brewing Co. v. Canada, 1980 .....................................................................................................................298 General Motors of Canada Ltd. v. City National Leasing Ltd., 1989 ......................................................................303 3.5 ­ Taxing and Spending Powers ................................................................................................................... 330 Bank of Toronto v. Lambe, 1887 ...........................................................................................................................330 Canadian Industrial Gas & Oil Ltd. v. Saskatchewan, 1978 ...................................................................................333 Allard Contractors Ltd. v. Coquitlam (District), 1993 ............................................................................................351 Kingstreet Investments Ltd. v. New Brunswick (Finance), 2007 ...........................................................................374

CHAPTER 4: INTERJURISDICTIONAL IMMUNITY................................................................... 390

Ontario (Attorney General) v. Winner, 1954 ........................................................................................................390 Québec v. Bell Telephone Co of Canada, 1966 .....................................................................................................400 Bell Canada v. Québec, 1988.................................................................................................................................406 Canadian Western Bank v. Alberta, 2007 .............................................................................................................413

CHAPTER 5: PARAMOUNTCY ........................................................................................................ 442

Multiple Access Ltd. v. McCutcheon, 1982 ...........................................................................................................442 British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 .......................................................................447

CHAPTER 6: EXTRATERRITORIALITY ....................................................................................... 457

Reference re: Upper Churchill Water Rights Reversion Act 1980 (Newfoundland), 1984 ....................................457 Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 ..................................................................469 British Columbia v. Imperial Tobacco Canada Ltd., 2005 ......................................................................................483

PART III: ABORIGINAL PEOPLES AND THE CONSTITUTION

CHAPTER 7: ABORIGINAL PEOPLES AND THE CONSTITUTION ....................................... 491

Guerin v. Canada, 1984 .........................................................................................................................................491 R. v. Dick, 1985 ......................................................................................................................................................505 R. v. Sparrow, 1990 ...............................................................................................................................................518 R. v. Pamajewon, 1996 ..........................................................................................................................................540 Haida Nation v. British Columbia ..........................................................................................................................544 Note on Beckman v. Little Salmon/Camacks First Nation .....................................................................................560 R. v. Morris, 2006 ..................................................................................................................................................561

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PART IV: THE CHARTER

CHAPTER 8: APPLICABILITY ........................................................................................................ 573

McKinney v. University of Guelph, 1990 ...............................................................................................................573 Grant v. Torstar .....................................................................................................................................................592 Eldridge v. British Columbia (Attorney General), 1997 .........................................................................................602 Note on Vriend v. Alberta, 1998 ...........................................................................................................................609 Godbout v. Longueuil (City), 1997 ........................................................................................................................610

CHAPTER 9: JUSTIFICATION ......................................................................................................... 615

R. v. Nova Scotia Pharmaceutical Society, 1992 ...................................................................................................615 R. v. Oakes, 1986 ...................................................................................................................................................627 Newfoundland (Treasury Board) v. (N.A.P.E.), 2004 .............................................................................................632

CHAPTER 10: REMEDIES ................................................................................................................ 639

Schachter v. Canada, 1992 ....................................................................................................................................639 Vriend v. Alberta, 1998 .........................................................................................................................................653 R. v. Ferguson, 2008 ..............................................................................................................................................657 Vancouver v. Ward................................................................................................................................................667 R. v. Conway ..........................................................................................................................................................682

CHAPTER 11: FREEDOM OF EXPRESSION ................................................................................ 694

Irwin Toy Ltd. v. Québec (Attorney General), 1989 ..............................................................................................695 R. v. Butler, 1992 ...................................................................................................................................................707 City of Montreal v. 2952-1366 Quebec Inc. ..........................................................................................................722 R. v. Bryan, 2007 ...................................................................................................................................................733 Baier v. Alberta, 2007............................................................................................................................................750 Greater Vancouver Transportation Authority v. CFS - BC, 2009 ...........................................................................760

CHAPTER 12: FREEDOM OF ASSOCIATION .............................................................................. 784

Health Services Support-Facilities Subsector Bargaining Assn. V. BC ...................................................................784 Ontario (Attorney General) v. Fraser ....................................................................................................................821

PART V: ACCESS TO JUSTICE

CHAPTER 13: ACCESS TO JUSTICE AND CONSTITUTIONAL LITIGATION ...................... 845

BCGEU v. British Columbia (Attorney General), 1988 ...........................................................................................845 British Columbia (Attorney General) v. Christie, 2007 ..........................................................................................852 Constitutional Question Act ..................................................................................................................................859 Minister of Justice v. Borowski..............................................................................................................................861

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Chapter 1: Colonial Origins to Autonomy

This chapter traces the highlights of the legal history of Canada commencing with its colonial origins. Each colony, of course, has a slightly different legal history before 1867 depending on when it came into being and by what method, whether by settlement or by conquest and cession. The definitions and classifications were, of course, Imperial. The English colonists did not start from zero: they brought with them so much of English law as was suitable to their new circumstances. Similarly, the French colonists brought civil law with them and, as a conquered colony, were permitted to continue to use their preconquest private law (although the Imperial Parliament decided to impose English private law, a.k.a. common law, for a brief period). The legal systems of the aboriginal people were not officially recognized although there is some recognition of aboriginal private law by the courts in succeeding years. The legal systems created in each colony were, therefore, combinations of the following elements: English common law and ordinary English statutes which the colonists brought with them (or, in the case of Lower Canada, French civil law); paramount statutes enacted by Parliament acting in its Imperial capacity; proclamations issued by the Crown; and statutes and ordinances enacted by the colonial legislative bodies when they came into existence. The unique history of each pre-1867 colonial legal system can still be discerned in the modern contents of the provincial legal systems which are their successors. The critical date, for purposes of private law, is the date of discontinuance of the automatic reception of ordinary English statute law. That date can generally be said to coincide with the creation of a colonial legislative body but, for greater certainty, the date is often set by statute enacted by the local legislature or council. For what is now Ontario, automatic reception of ordinary English statutes ended in 1792. For British Columbia, the date for discontinuance of reception of English statute law is set by what is now the Law and Equity Act, R.S.B.c. 1996 c. 253, as November 19, 1858. The chapter describes the circumstances giving rise to the enactment of the British North America Act, 1867 (now the Constitution Act, 1867) and, in chronological order, contains the key enactments and decisions whereby Canada achieved full autonomy. That status was not attained until 1982 when the Parliament in the United Kingdom, acting in its Imperial capacity, passed the Canada Act UK. 1982 which renamed the British North America Act, 1867 and which appended the Constitution Act, 1982 as a Schedule. (The English version was Schedule B.)

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The Royal Proclamation, 1763

October 7, 1763 BY THE KING. A PROCLAMATION GEORGE R. Whereas We have taken into Our Royal Consideration the extensive and valuable Acquisitions in America, secured to our Crown by the late Definitive Treaty of Peace, concluded at Paris. the 10th Day of February last; and being desirous that all Our loving Subjects, as well of our Kingdom as of our Colonies in America, may avail themselves with all convenient Speed, of the great Benefits and Advantages which must accrue therefrom to their Commerce, Manufactures, and Navigation, We have thought fit, with the Advice of our Privy Council. to issue this our Royal Proclamation, hereby to publish and declare to all our loving Subjects, that we have, with the Advice of our Said Privy Council, granted our Letters Patent, under our Great Seal of Great Britain, to erect, within the Countries and Islands ceded and confirmed to Us by the said Treaty, Four distinct and separate Governments, styled and called by the names of Quebec, East Florida, West Florida and Grenada, and limited and bounded as follows, viz. First--The Government of Quebec bounded on the Labrador Coast by the River St. John, and from thence by a Line drawn from the Head of that River through the Lake St. John, to the South end of the Lake Nipissim; from whence the said Line, crossing the River St. Lawrence, and the Lake Champlain, in 45. Degrees of North Latitude, passes along the High Lands which divide the Rivers that empty themselves into the said River St. Lawrence from those which fall into the Sea; and also along the North Coast of the Baye des Chaleurs, and the Coast of the Gulph of St. Lawrence to Cape Rosieres, and from thence crossing the Mouth of the River St. Lawrence by the West End of the Island of Anticosti, terminates at the aforesaid River of St. John. Secondly--The Government of East Florida. bounded to the Westward by the Gulph of Mexico and the Apalachicola River; to the Northward by a Line drawn from that part of the said River where the Chatahouchee and Flint Rivers meet, to the source of St. Mary's River. and by the course of the said River to the Atlantic Ocean; and to the Eastward and Southward by the Atlantic Ocean and the Gulph of Florida, including all Islands within Six Leagues of the Sea Coast. Thirdly--The Government of West Florida. bounded to the Southward by the Gulph of Mexico. including all Islands within Six Leagues of the Coast. from the River Apalachicola to Lake Pontchartrain; to the Westward by the said Lake, the Lake Maurepas, and the River Mississippi; to the Northward by a Line drawn due East from that part of the River Mississippi which lies in 31 Degrees North Latitude. to the River Apalachicola or Chatahouchee; and to the Eastward by the said River. Fourthly--The Government of Grenada, comprehending the Island of that name, together with the Grenadines, and the Islands of Dominico, St. Vincent's and Tobago. And to the end that the open and free Fishery of our Subjects may be extended to and carried on upon the Coast of Labrador, and the 6

adjacent Islands. We have thought fit. with the advice of our said Privy Council to put all that Coast, from the River St. John's to Hudson's Streights, together with the Islands of Anticosti and Madelaine, and all other smaller Islands Iying upon the said Coast, under the care and Inspection of our Governor of Newfoundland. We have also, with the advice of our Privy Council. thought fit to annex the Islands of St. John's and Cape Breton, or Isle Royale, with the lesser Islands adjacent thereto, to our Government of Nova Scotia. We have also, with the advice of our Privy Council aforesaid, annexed to our Province of Georgia all the Lands Iying between the Rivers Alatamaha and St. Mary's. And whereas it will greatly contribute to the speedy settling of our said new Governments, that our loving Subjects should be infomed of our Paternal care, for the security of the Liberties and Properties of those who are and shall become Inhabitants thereof, We have thought fit to publish and declare, by this Our Proclamation, that We have, in the Letters Patent under our Great Seal of Great Britain, by which the said Governments are constituted. given express Power and Direction to our Governors of our Said Colonies respectively, that so soon as the state and circumstances of the said Colonies will admit thereof, they shall, with the Advice and Consent of the Members of our Council, summon and call General Assemblies within the said Governments respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in America which are under our immediate Government: And We have also given Power to the said Governors, with the consent of our Said Councils, and the Representatives of the People so to be summoned as aforesaid, to make, constitute, and ordain Laws. Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, and under such Regulations and Restrictions as are used in other Colonies; and in the mean Time, and until such Assemblies can be called as aforesaid, all Persons Inhabiting in or resorting to our Said Colonies may confide in our Royal Protection for the Enjoyment of the Benefit of the Laws of our Realm of England; for which Purpose We have given Power under our Great Seal to the Governors of our said Colonies respectively to erect and constitute, with the Advice of our said Councils respectively, Courts of Judicature and public Justice within our Said Colonies for hearing and determining all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England, with Liberty to all Persons who may think themselves aggrieved by the Sentences of such Courts, in all Civil Cases. to appeal, under the usual Limitations and Restrictions, to Us in our Privy Council. We have also thought fit, with the advice of our Privy Council as aforesaid, to give unto the Governors and Councils of our said Three new Colonies, upon the Continent full Power and Authority to settle and agree with the Inhabitants of our said new Colonies or with any other Persons who shall resort thereto, for such Lands. Tenements and Hereditaments, as are now or hereafter shall be in our Power to dispose of; and them to grant to any such Person or Persons upon such Terms, and under such moderate Quit-Rents, Services and Acknowledgments, as have been appointed and settled in our other 7

Colonies, and under such other Conditions as shall appear to us to be necessary and expedient for the Advantage of the Grantees, and the Improvement and settlement of our said Colonies. And Whereas, We are desirous, upon all occasions, to testify our Royal Sense and Approbation of the Conduct and bravery of the Officers and Soldiers of our Armies, and to reward the same, We do hereby command and impower our Governors of our said Three new Colonies, and all other our Governors of our several Provinces on the Continent of North America, to grant without Fee or Reward, to such reduced Officers as have served in North America during the late War, and to such Private Soldiers as have been or shall be disbanded in America, and are actually residing there, and shall personally apply for the same, the following Quantities of Lands, subject, at the Expiration of Ten Years, to the same Quit-Rents as other Lands are subject to in the Province within which they are granted, as also subject to the same Conditions of Cultivation and Improvement; viz. To every Person having the Rank of a Field Officer--5,000 Acres. To every Captain--3,000 Acres. To every Subaltern or Staff Officer,--2,000 Acres. To every Non-Commission Officer,--200 Acres . To every Private Man--50 Acres. We do likewise authorize and require the Governors and Commanders in Chief of all our said Colonies upon the Continent of North America to grant the like Quantities of Land, and upon the same conditions, to such reduced Officers of our Navy of like Rank as served on board our Ships of War in North America at the times of the Reduction of Louisbourg and Quebec in the late War, and who shall personally apply to our respective Governors for such Grants. And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them. or any of them, as their Hunting Grounds.--We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure. that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida. or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments. as described in their Commissions: as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which,

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not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them. And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid. And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved. without our especial leave and Licence for that Purpose first obtained. And. We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described. or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements. And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests. and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do. with the Advice of our Privy Council strictly enjoin and require. that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement: but that. if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie: and in case they shall lie within the limits of any Proprietary Government. they shall be purchased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose: And we do. by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever. provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of our Colonies respectively where such Person shall reside. and also give Security to observe such Regulations as We shall at any Time think fit. by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade: And we do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all our Colonies respectively, as well those under Our immediate Government as those under the Government

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and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted shall refuse or neglect to observe such Regulations as We shall think proper to prescribc as aforesaid. And we do further expressly conjoin and require all Officers whatever, as well Military as those Employed in the Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all Persons whatever. who standing charged with Treason. Misprisions of Treason. Murders, or other Felonies or Misdemeanors. shall fly from Justice and take Refuge in the said Territory. and to send them under a proper guard to the Colony where the Crime was committed of which they, stand accused. in order to take their Trial for the same. Given at our Court at St. James's the 7th Day of October 1763. in the Third Year of our Reign. GOD SAVE THE KING

Colonial Laws Validity Act, 1865

An Act to remove Doubts as to the Validity of Colonial Laws 28 & 29 Vict., c. 63 (U.K.) [29th June 1865] "Whereas Doubts have been entertained respecting the Validity of divers laws enacted or purporting to have been enacted by the Legislatures of certain of Her Majesty's Colonies and respecting the Powers of such Legislatures and it is expedient that such Doubts should be removed:" Be it hereby enacted by the Queen's most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled and by the Authority of the same as follows: 1. The Term "Colony" shall in this Act include all of Her Majesty 's Possessions abroad in which there shall exist a Legislature as hereinafter defined except the Channel Islands the Isle of Man and such Territories as may for the Time being be vested in Her Majesty under or by virtue of any Act of Parliament for the Government of India The Terms "Legislature" and "Colonial Legislature" shall severally signify the Authority other than the Imperial Parliament or Her Majesty in Council competent to make Laws for any Colony: The Term "Representative Legislature" shall signify any Colonial Legislature which shall comprise a Legislative Body of which One Half are elected by Inhabitants of the Colony: 10

The Term "Colonial Law" shall include Laws made for any Colony either by such Legislature as aforesaid or by Her Majesty in Council: An Act of Parliament or any Provision thereof; shall in construing this Act be said to extend to any Colony when it is made applicable to such Colony by the express Words or necessary Intendment of any Act of Parliament: The Term "Governor" shall mean the Officer lawfully administering he Government of any Colony: The Term "Letters Patent" shall mean Letters Patent under the Great Seal of the United Kingdom of Great Britain and Ireland 2. Any Colonial Law which is or shall be in any respect repugnant to the Provisions of any Act of Parliament extending to the Colony to which such Law may relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the Force and Effect of such Act, shall be read subject to such Act, Order, or Regulation, and shall, to the Extent of such Repugnancy, but not otherwise, be and remain absolutely void and inoperative. 3. No Colonial Law shall be or be deemed to have been void or inoperative on the Ground of Repugnancy to the Law of England, unless the same shall be repugnant to the Provisions of some such Act of Parliament, Order, or Regulation as aforesaid. 4. No Colonial Law, passed with the Concurrence of or assented to by the Governor of any Colony, or to be hereafter so passed or assented to, shall be or be deemed to have been void or inoperative by reason only of any Instructions with reference to such Law or the Subject thereof which may have been given to such Governor by or on behalf of Her Majesty, by any Instrument other than the Letters Patent or Instrument authorizing such Governor to concur in passing or to assent to Laws for the Peace, Order, and good Government of such Colony, even though such Instructions may be referred to in such Letters Patent or last-mentioned Instrument. 5. Every Colonial Legislature shall have, and be deemed at all Times to have had full Power within its Jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make Provision for the Administration of Justice therein; and every Representative Legislature shall, in respect to the Colony under its Jurisdiction, have, and be deemed to at all Times to have had, full Power to make Laws respecting the Constitution, Powers, and Procedure of such Legislature; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony. 6. The Certificate of the Clerk or other proper Officer of a Legislative Body in any Colony to the Effect that the Document to which it is attached is a true Copy of any Colonial Law assented to by the 11

Governor of such Colony, or of any Bill reserved for the Signification of Her Majesty's Pleasure by the said Governor. shall be prima facie Evidence that the Document so certified is a true Copy of such Law or Bill, and, as the Case may be, that such Law has been duly and properly passed and assented to, or that such Bill has been duly and properly passed and presented to the Governor; and any Proclamation purporting to be published by Authority of the Governor in any Newspaper in the Colony to which such Law or Bill shall relate, and signifying Her Majesty 's Disallowance of any such Colonial Law, or Her Majesty's Assent to any such reserved Bill as aforesaid, shall be primâ facie Evidence of such Disallowance or Assent. "And whereas Doubts are entertained respecting the Validity of certain Acts enacted or reputed to be enacted by the Legislature of South Australia:" Be it further enacted as follows: 7. All Laws or reputed Laws enacted or purporting to have been enacted by the said Legislature, or by Persons or Bodies of Persons for the Time being acting as such Legislature, which have received the Assent of Her Majesty in Council, or which have received the Assent of the Governor of the said Colony in the Name and on behalf of Her Majesty, shall be and be deemed to have been valid and effectual from the Date of such Assent for all Purposes whatever; provided that nothing herein contained shall be deemed to give Effect to any Law or reputed Law which has been disallowed by Her Majesty, or has expired, or has been lawfully repealed, or to prevent the lawful Disallowance or Repeal of any Law.

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Report of the Royal Commission on Dominion-Provincial Relations, 1867-1939

Rowell-Sirois, (Ottawa: Queen's Printer, 1954) CONFEDERATION 1. THE FORCES LEADING TO CONFEDERATION Canadian Confederation was a great political achievement. It was made possible by a remarkable conjuncture of events which brought each of the separate colonies to a crisis in its affairs at the same time and pointed to political union as a common solution of their difficulties. Great Britain, for the time being disillusioned with empire, had reversed the military and commercial policies which had sheltered and nourished the colonies in the past. The loss of the imperial preferences had compelled all the colonies to face drastic readjustments. In the Province of Canada, this disaster coincided with the final failure of the costly St. Lawrence transportation system designed to tap the trade of the Middle West. The public finances of the Province were seriously involved in the failure of this ambitious venture at the very moment when the strife between Upper and Lower Canada had led to a political impasse. In the Maritimes, the nicely balanced economy based on the sea was threatened by the new agents of steel and steam; an onerous public debt had been incurred for railways and the loss of the imperial preferences was a heavy blow. These circumstances provided tribulations enough for colonial statesmen; in addition there was the hostile attitude and aggressive expansion of the United States. The territorial aggrandizement of the United States impelled a defensive political union of the British colonies in North America. The loss of imperial preferences and probable withdrawal of trading privileges by the United States gave point to arguments for economic union. The railways, lately come to North America, provided for the first time a means of uniting vast continental areas under a single government. In a larger union, there might be not only an escape from present and impending misfortunes but also a brighter future. Out of the failures of the past, the perils of the present and the hopes for the future, there emerged a new purpose and design for British North America. It not only required that there should be union but also decided largely the form it should take. The purpose, the original structure and much of the subsequent history of the Canadian federation find their explanation in the very factors which brought union about. The American Revolution left half the continent with two tiny pockets of settlement under the British flag. These two pockets had developed into four self-governing colonies, and struggling settlements had gained footholds in the western wilderness and on the Pacific Coast. The older colonies had matured greatly, both politically and economically, but, being essentially dependent on water transportation, they had remained isolated from one another. As British dependencies, their economic development had been shaped by the imperial commercial system. They thought in terms of external rather than British North American trade. The Maritimes looked to the sea. They concentrated on their timber and fish, their shipbuilding and their carrying trade. Their own hinterland and the vast continent behind them were little in their thoughts. The Canadas had developed a thriving export trade in timber and wheat. The most active 13

spirits, however, took these outlets for granted and faced inward on the continent. For them, the St. Lawrence water system was not so much a political boundary as a great highway leading into the heart of the continent. From the beginning, the Canadians had dreamed of a future when a trade of continental proportions would pour along their highway. The other British colonies had little place in their plans for the St. Lawrence as one of the great trade routes of the world. And the concerns of the Red River and Pacific Coast settlements were entirely foreign to those of Canada and the Maritimes. The separate pre-occupations of the colonies had led them in opposite directions emphasizing, in social terms, their physical isolation from one another. Thus, in spite of their growth, the British colonies in North America had remained small and isolated pockets of settlement. They had grown up in reliance upon the mercantile privileges supplied by the British navigation laws and trade preferences. This was their world and they would be compelled to find an entirely new scheme of existence if it disappeared. And disappear it did in the two decades before Confederation. By adopting free trade at home, Great Britain swept away the privileges on which the provinces had relied. With the grant of responsible government, imperial control over colonial fiscal policy was relinquished. The imperial authorities insisted that responsible government carried with it the responsibility for defence and the colonies were notified that the garrisons would be withdrawn. The threatened recall of the legions marked the end of the sheltered world the colonies had known. Accustomed to shelter, the first reaction of the Province of Canada was to seek a new privileged relationship with the United States. This movement which resulted in the Elgin-Marcy Reciprocity Treaty of 1854 met with some short-lived success but the permanence of any such solution soon became open to the greatest doubt. Unfortunately for the peace of mind of the colonies, the change in British imperial policy coincided with the rise of continental imperialism in the United States.1 During the fifties and sixties, the far west was rapidly organized into territories under the aegis of the United States. The projection of transcontinental railroads by American promoters aroused deep alarm in the minds of British North American statesmen.2 Aided by new methods of settlement3 and transport, settlers were swarming westward and eddying northward towards the domain of the Hudson's Bay Company.4 This quick advance across the continent was accompanied by hymns to "manifest destiny" and by repeated, though largely irresponsible demands for the annexation of the British colonies to the north. Even if Canada and the Maritimes were not seriously threatened, it became increasingly doubtful whether the United States could be prevented from swallowing the rest of the continent, including the territories of the Hudson's Bay Company and the feeble British settlements on the Pacific Coast. The American Civil War with its border incidents and its Anglo-American disputes intensified the alarm, and anger at Great Britain ensured that the United States would abrogate the Reciprocity Treaty at the earliest opportunity. The "Alabama claims" were translated into a demand for territorial compensation. Various threatening gestures were made by the American Union which emerged from

1 2

Texas was annexed in 1845, Oregon in 1846, and Alaska purchased in 1867. The Union Pacific was chartered in 1862 and the Northern Pacific in 1864, the latter being frankly planned as an international transcontinental road. 3 In 1862, the Free Homestead Act opened the American West on most advantageous terms to incoming settlers. 4 Minnesota, which lay just south of the tiny Red River settlement, was admitted to the Union in 1858.

14

civil war as one of the great military powers in the world. In the early sixties, the era of peaceful political relations and advantageous commercial arrangements with the United States appeared to be definitely over. The political independence of the colonies was insecure and their material prospects were discouraging in the extreme. They had lost their most valuable commercial privileges in the retreat of one empire and they had no hope of countervailing advantages from the threatening advance of another. The abrupt reversal of British policy and the rapid expansion of the United States were events of world-wide significance. Either of them taken singly would have been a heavy blow to the provinces. Their coincidence intensified this pressure and gave it an urgency it might otherwise have lacked. Had Britain retained the old commercial system, the provinces might have remained uneasily passive in the face of American expansion. If their southern neighbour had shown herself pacific and eager to trade on advantageous terms, they might have permitted themselves to be drawn quietly and separately into her orbit. As it was, these events were loosed upon them in the same period, forcing them to contemplate radical measures. They began to see solid advantages in a political union which had never hitherto been seriously entertained. Through a united front, they might hope to resist the northward expansion of the United States. By organizing trade among themselves, they might compensate for the loss of their valuable commercial privileges. There were a number of factors in their domestic situations which urged drastic action and also pointed to the same solution. The long efforts to draw the trade of the mid-continent down the St. Lawrence had met with final failure. The public debts incurred for railways and other improvements of the St. Lawrence transportation system had almost destroyed the credit of the Province of Canada in the London money markets. The possibilities of further expansion within the Province were severely limited and vigorous commercial groups in Montreal and Toronto, disappointed over the failure to tap the Middle West, were looking for new fields for enterprise. In these circumstances, attention turned increasingly to the possibilities of the North-West. The imperial authorities were willing for Canada to take over Rupert's Land. As long as everything depended on water transportation, it had not been commercially accessible. But the coming of the railways seemed, for the first time, to open the way for its development. South of the boundary, the United States was showing how railways could be used to organize a commercial domain. With the aid of this new technique, Canada might duplicate the impressive expansion of the United States. As an escape from the disappointments of the past and the hampering limitations of the present, the attractions of a national transcontinental system became ever more compelling. The pressure for expansion to the West came mainly from Upper Canada, seething with the typical urges of frontier America. This fact had a disturbing influence on the unstable political union of Upper and Lower Canada. In spite of the unitary form of the constitution established in 1841, the Province of Canada had taken on the main features of a federal system. The Act of Union had awarded each section an equal number of representatives in the provincial assembly, and the practice of dividing ministerial posts and votes of public money fairly equally between them maintained an uneasy political balance between French-speaking and English-speaking Canadians. The instability of this equilibrium became more marked as the population of Upper Canada outgrew that of Lower Canada and the former demanded increased representation which would reflect its decisive superiority in numbers. The union thus endangered the cultural heritage of Lower Canada. Annexation of the Northwest, 15

leading to further British settlement, would involve a westward transference of the provincial centre of gravity. Lower Canada would be doomed to political subordination, and the threats to its cultural values were intensified. French Canada would not acquiesce in the swamping of its own way of life and the collapse of the Taché-Macdonald Government in June, 1864, after only three months of office, clearly revealed the impasse to which Canadian politics had been brought. The coalition which succeeded it was frankly formed to explore the possibilities of federal union, either of the Canadas alone or of British North America as a whole. In the Province of Canada, internal political deadlock and financial stringency intensified the pressure for a sweeping adjustment. At the same time, the vision of transcontinental expansion had begun to have some attraction for the Maritimes. They were suffering from the loss of their protected markets and the new techniques of the industrial revolution were disturbing their habitual pursuits. Steam-driven vessels were overhauling the famous clipper ships and cutting into the carrying trade of the Maritimes. These circumstances led them to consider seriously the possibility of closer relations with Canada. Here again it was the railway which brought this possibility within the realm of the practical. New Brunswick and Nova Scotia had strained their public finances to build railways which were as yet incomplete. But the completion of the Intercolonial would, it was thought by many, bring the commerce of Canada into the ice-free ports of Halifax and Saint John. With a little optimism they could see the trade of a transcontinental British North America canalized in the same way. And for the Maritimes too, the growing belligerence of the United States darkened the horizon, and intensified the Maritimes' recognition of their own inability to protect the fisheries. Thus the pressure for union grew out of the circumstances of the colonies. The nature of these Circumstances, both economic and political, determined the character of the union. The political conditions are familiar and need no further discussion. The economic conditions influenced greatly much of the framework and detail of the federal scheme. To grasp the design of the architects of Confederation it is therefore important to look more closely at the economic and social conditions of the time. *** 3. THE NATURE OF CONFEDERATION Principal Objectives Confederation was conceived as the solution for a number of political and economic difficulties and, therefore, had both political and economic aims. Politically, it was designed to establish a new nation to meet the changed conditions of British policy and to brace the scattered provinces against possible American aggression. Economically, it was intended to foster a national economy which would relieve dependence upon a few industries and lessen exposure to the effects of the economic policies pursued by the United States and Great Britain.

16

Political union was expected to promote strength as against the external world. The triumphant Northern States appeared a threat to territorial integrity. Other interests needed protection too. Nova Scotia felt her deep-sea fishery interests threatened, and the special institutions and culture of Lower Canada would not long have survived absorption of the colonies by the United States. Political union as designed to defend navigation rights on the St. Lawrence and its canals, and fishing rights at sea. A single united authority could use both these and access to its extended internal market as bargaining counters for advantages in international trade. A stable political authority would restore the public credit, so badly damaged by the accumulation of debt and political dissension. In the money markets of the world, the credit of the whole would be greater than that of the parts and would provide a broader base for the government expenditures necessary to attain new and difficult economic objectives. Federal union was a plan whereby, through mutual concession, cultural and local loyalties could be preserved and reconciled with the political strength and solidarity of the whole. These separate loyalties were strong and their existence was keenly realized. They existed not only in Canada but also in the Maritimes where they had helped to frustrate projects for Maritime legislative union. Mutual concession required the English-speaking elements of Lower Canada to relinquish their integral union with the English-speaking people of Upper Canada while the French-speaking Canadians abandoned their objections to a superior political authority in whose councils they would be in a minority. In compensation, the broad questions of trade and commerce which so intimately concerned the Englishspeaking people of Lower Canada were to be given to the federal authority, thus securing the benefits of single control in these matters of general interest while French-speaking Canada was to be secured in sole control of the cherished values it so tenaciously held. Equally, this solution offered security for the historic traditions firmly rooted in the Maritimes. Economically, the first objectives of Confederation were to establish a free-trade area comprising the five old provinces and to develop interprovincial transportation facilities. The resources and industries of the several provinces, it was thought, would prove complementary to each other, and would increase prosperity and self-sufficiency. To make this a reality, the Intercolonial Railway was to link the Maritime Provinces with the St. Lawrence Valley and to give Canada winter access to the sea. Another great economic objective of Confederation, to be realized as soon as circumstances permitted, was the opening up of the Northwest and the inclusion of the Pacific province. For the Province of Canada, in particular; this westward expansion was to provide an escape from a cul-de-sac and the threatened economic stagnation. New frontiers and new resources would provide opportunities for settlement and development. It was recognized as an immense undertaking for which no specific detailed plan could be made under the urgencies and limitations of the moment. This project had to await the acquisition of the lands of the Hudson's Bay Company. It required the building of a transcontinental railway. This, in turn, depended upon attracting new capital and capital, at that time, had become shy of Canadian ventures. Collective effort and resources on a scale which only government could secure were necessary and, at the same time, conditional on the restoration of the public credit.

17

Although these plans were necessarily vague in 1867, they were nevertheless resolutely held. The new political framework was designed to give the Federal Government ample powers for the prodigious task of opening up the West. The Federal Government was intended to give a vigorous lead in the development of the new national transcontinental economy and in matters relating to that development there was to be no doubt, such as had recently arisen in the United States, about its authority. There were some among the Fathers of Confederation who favoured a unitary state as an instrument for realizing these plans. As is well known, John A. Macdonald had a strong preference for a unitary state and Galt accepted the federal scheme with reluctance and hoped it might later coalesce into a legislative union.19 But legislative union was not acceptable to the French-speaking Canadians or to the Maritime Provinces. Furthermore, municipal institutions had not yet been established in the Maritimes, and they were still in the early stages of development in Lower Canada. The centralization of all governmental powers under one government was, therefore, impracticable from an administrative point of view. The distractions of local administration might well have diverted some of the energies of the central government from its larger creative tasks. Thus, for various reasons, the builders of the new nation planned a federation comprised of a central government with authority over matters of general and common interest and provincial governments with authority over matters of local concern. The Division of Legislative Power The British North America Act was the final embodiment of their scheme. The acknowledged necessity of a federal type of union was recognized by the preamble to the Act which recited the desire of the Provinces of Canada, Nova Scotia and New Brunswick "to be federally united into One Dominion". The vital core of a federal constitution is the division of legislative powers between the central authority and the component states or provinces. This division represents the compromise between the forces which make union possible and those which inhibit the formation of a closer union. It marks the limits of what can be done by common agreement and the extent to which the separate states must be permitted to differ and work out their own destinies. In sections 91 to 95 of the British North America Act, the main lines of this division were set forth. In section 92, certain classes of subjects were enumerated and the provinces were given exclusive power to make laws in relation to matters coming within these classes of subjects. These classes included such things as the administration of justice, municipal institutions, the establishment and maintenance of prisons, hospitals, asylums and charitable institutions and control over the public lands of the province. The provinces were also given control over local works and undertakings. But an exception reserved international and interprovincial lines of transport and communication to the Dominion and authorized the Dominion to take legislative power over any local work at any time by declaring it to be for the general advantage of Canada or for the advantage of two or more provinces. A power of direct taxation to raise revenues for provincial purposes was given, although it was thought

19

Speech on the Proposed Union of the British North American Provinces, delivered at Sherbrooke on Nov. 23, 1864, p. 22.

18

that expanding revenues from the public lands would make it generally unnecessary for the provinces to exercise this power.20 The classes of subjects in section 92 included two of vague and general reference, viz. , "Property and Civil Rights in the Province" and "Generally all Matters of a merely local or private Nature in the Province". Section 93 gave the provinces control over education, subject to certain clauses designed to protect the rights of Roman Catholic and Protestant religious minorities. By section 95, the Dominion and the provinces were given concurrent powers over agriculture and immigration, federal legislation to prevail in case of conflict. The opening paragraph of section 91 gave the Dominion power "to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces". That is to say, the residue of powers not expressly given to the provinces was reserved to the Dominion. The section then proceeded with a specific enumeration of twenty-nine classes of subjects, illustrating but not restricting the scope of the general words used earlier in the section. This enumeration included such classes of subjects as defence, criminal law, naturalization and aliens, and the postal system. It also included regulation of trade and commerce, fisheries banking, currency and coinage, commercial paper, weights and measures, bankruptcy and insolvency and certain other topics of primarily economic reference. It also gave the Dominion unlimited powers of taxation. The concluding paragraph of section 91 provided against these enumerated topics being "deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects" assigned to the provinces by section 92. An exception to section 92 gave the Dominion control over all interprovincial and international transportation and communications. The Problem of Interpreting the Division of Legislative Power No amount of care in phrasing the division of powers in a federal scheme will prevent difficulty when the division comes to be applied to the variety and complexity of social relationships. The different aspects of life in a society are not insulated from one another in such a way as to make possible a mechanical application of the division of powers. There is nothing in human affairs which corresponds to the neat logical divisions found in the constitution. Therefore, attempts to exercise the powers allotted by the constitution frequently raise questions as to its meaning in relation to particular circumstances. The British North America Act has not escaped this difficulty. Manifestly, it would be difficult for the Dominion to make any law for the "Peace, Order and good Government of Canada" without affecting, in some way, one or other of the specific subjects in relation to which the provinces were given exclusive powers. On the other hand, laws made by the provinces under the heads of jurisdiction given by section 92 would frequently have direct implications for the "Peace, Order and good Government of Canada" or would bear in some unexpected way upon the enumerated classes of subjects in section 91 over which the Dominion was given exclusive power. The implications and sometimes the express

20

Speech by Galt, Confederation Debates, p. 68.

19

provisions of legislation would seem to cross the line which, in theory, divided the spheres of legislation assigned to the provinces and the Dominion. In a variety of circumstances, the problem of what amounted to an invasion of the field of one by the other would raise difficult questions of interpretation. The task of interpretation was complicated by the existence, in sections 91 and 92, of several general descriptions of the ambit of legislative power given to the Dominion and the provinces which lacked a clear, legal meaning. "Peace, Order and good Government", "Regulation of Trade and Commerce", "Property and Civil Rights in the Province" do not convey precise signification. Since 1867, the Privy Council has had the last word on the meaning of the British North America Act and has laid down rules of construction for determining when section 91 was to have primacy over section 92. By a process of textual criticism, it has given some concreteness to the general phrases just mentioned. In this way, it has elucidated the legal meaning of the constitution and imparted greater certainty to the division of powers than could have existed when the Act first came into operation. This legal meaning is binding on all other courts and on the Dominion and provincial legislatures. The British North America Act was a statute of the British Parliament and the Privy Council brought to its task of elucidation an elaborate set of rules binding on the courts in their interpretation of all statutes. These rules required the Privy Council to consider the literal meaning of the words used without any conjectures as to the intentions of those who framed the Quebec and London Resolutions. The Privy Council as a court was not free to consider historical evidence about intentions but was bound to restrict itself to a consideration of what may be called, by contrast, legal evidence ­ the intention actually expressed by the words used in the Act.21 Much controversy, past and present, has centred on the question whether the intention which the Privy Council has found to be expressed in the Act accords with the actual intention of the Fathers; in short, whether we now have the constitution which they intended to give us. Historical Interpretation of the Intentions of the Fathers ­ arguments supporting a broad view of Dominion powers Some historians urge that the Fathers intended to give wide, sweeping powers to the Dominion and to restrict the provinces to a narrow range of functions, in the exercise of which they were to be subject to the control and supervision of the Dominion.24 They claim that the general phrases in section 91, "Peace, Order and good Government" and "Regulation of Trade and Commerce", to which the Privy Council has given a restricted meaning were intended to have a broad interpretation and that the

21

In interpreting the British North America Act, "the question is not what may be supposed to have been intended but what has been said." Lord Sankey in Edwards v. Attorney General of Canada, [1930] A.C. 124 at p. 137. 24 For historical interpretation in general supporting this view, see Appendix 2 ­ D. G. Creighton, British North America at Confederation; R. G. Trotter, Canadian Federation (Toronto, 1934) ; "The Coming of Confederation," Cambridge History of the British Empire, Vol. VI, pp. 438-62; Chester Martin, "British Policy in Canadian Federation," Canadian Historical Review, Vol. XIII, pp. 3-19; W. M. Whitelaw, The Maritimes and Canada before Confederation, (Toronto, 1934) ; W. P. M. Kennedy, Essays in Constitutional Law, p. 85ff ; V. C. MacDonald, "Judicial Interpretation of the Canadian Constitution", University of Toronto Law Journal, Vol. 1, No. 2, p. 260ff. For careful description of the Quebec Conference see W. M. Whitelaw, "Reconstructing the Quebec Conference", Canadian Historical Review, Vol. XIX, pp. 123-37.

20

general phrase, "Property and Civil Rights in the Province", in section 92, to which the Privy Council has given an extended meaning, was intended by the framers to have a much more limited interpretation. Some of the leading figures among, the framers of the federal scheme evidently intended the general government, as it was called, to have broad and far-reaching powers. John A. Macdonald explained that "all the great questions which affect the general interests of the Confederacy as a whole, are confided to the Federal Parliament".25 Galt declared that among the subjects given to the general government would be found "all that could in any way be considered of a public and general character".26 Lord Carnarvon, the Colonial Secretary, introducing the scheme to the House of Lords said it proposed to give to the central authority "those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured in those questions that are of common import to all the provinces".27 Some of the opponents of the scheme criticized it on much the same grounds. A. A. Dorion claimed that it "gives all the powers to the Central Government, and reserves for the local governments the smallest possible amount of freedom of action,"28 and J. B. E. Dorion opposed the scheme "because we are offered local parliaments which will be simply nonentities, with a mere semblance of power on questions of minor importance".29 Supporters of this historical interpretation urge that this view of the relative importance of the Dominion and provincial governments in the new scheme is borne out by various sections of the constitution. They point to the power of the Dominion to appoint the Lieutenant-Governors of the provinces and emphasize the fact that while the provinces were given power to amend the provincial constitutions, they were forbidden to alter in any way the office of Lieutenant-Governor. They contend that the intention to give the Dominion a dominating position is confirmed by the power to reserve and disallow provincial legislation which was given to the Dominion. In support of this general position, they place great importance on the opening paragraph of section 91 which gave the Dominion power to make laws for the "Peace, Order and good Government of Canada" in relation to all matters not exclusively assigned to the provincial legislatures. This phrase had acquired a wide, though not very precise, significance in the legislative history of the British Empire before 1867.30 "Peace, order and good government", and the variation, "peace, welfare and good government" were the phrases habitually used by the British colonial authorities in vesting colonial legislatures with the full range of their legislative powers. In conferring these powers on colonial legislatures, it was not customary to enumerate specific powers; it was customary merely to grant, in one or other of these well-worn phrases, the entire measure of jurisdiction deemed compatible with imperial control. As imperial control in the internal

25 26

Confederation Debates, p. 40. See also pp. 30, 33, 41. Speech on the Proposed Union, p. 10. 27 Quoted by V. C. MacDonald, "Judicial Interpretations of the Canadian Constitution" (1936), University of Toronto Law Journal, p. 263. 28 Confederation Debates, p. 250. 29 Ibid., p. 859 30 C. H. Caban, op. cit. 8335-3

21

affairs of the colonies was mainly exercised through the power of disallowance, these phrases carried complete internal legislative competence. In fact, they are the title-deeds of the legislatures of the selfgoverning Dominions, not again added to by imperial legislation until the Statute of Westminster. The exponents of this historical interpretation, emphasizing the breadth of Dominion powers, infer from the insertion of this phrase in section 91, that the framers must have intended its full historic meaning to prevail, saving only the powers expressly given to the provinces in section 92. It is similarly urged that the Fathers meant an extended signification to be given to the phrase "Regulation of Trade and Commerce", in section 91. At the time of Confederation, Canada was just beginning to emerge from the commercial into the industrial age. The distinguishing feature of the commercial age was its pre-occupation with exchange, the trading of raw or crudely processed products on a world-wide scale. This required an extended organization, interprovincial and international in its scope. It was a delicate system, for its life-lines were everywhere exposed. Prosperity depended on its maintenance and its maintenance and development, in turn, depended on the sympathetic consideration, if not the positive assistance, of governments. Nothing showed this more clearly than the British imperial trading organization of the 18th and early 19th centuries. British North American statesmen had lived with this system and had seen what control over extended trading relationships by a single government could achieve. Trade and commerce, because of their nature and scope, were inevitably public matters of great import and it is argued that the phrase "the regulation of trade and commerce" had a very wide significance both historically and in the current usage of the Confederation period.* In addition, it is contended, they must have been acutely aware of the confusion which arises when control over such matters is parcelled out among several governments. During the fifty years in which the Provinces of Upper and Lower Canada maintained their separate existence, the control of the St. Lawrence and its commerce had been divided between two distinct and independent governments. This division led to conflicts between Upper and Lower Canada and to bitter struggles between the commercial and agrarian parties in each.31 Upper Canada had disagreed with Lower Canada and the commercial interests in Montreal had quarreled with the leaders of the Patriot party over many economic matters of common concern to the whole St. Lawrence Valley. The impossibility of arriving quickly at a vigorous common policy in these matters had hampered Canada in its bid for the trade of the mid-continent. The frustrations engendered by divided authority formed part of the living memory of public men at the time of Confederation and this appeal to history for a broad interpretation of Dominion powers argues that the Fathers, who wanted to create a robust national economy, must have intended the control of such matters to be placed in the hands of a single government. In support of this thesis, they draw attention to the reluctance among the commercial element in Montreal to give up the Union of 1841 which had established a common government to deal with these economic matters. The confederation plan asked them to abandon this union and one of the tasks of the advocates of a wider union was to convince them that the establishment again of two provinces in the St. Lawrence Valley would not mean a return to the old confusions. John Rose assured

* 31

Appendix 2 ­ D. G. Creighton, British North America at Confederation, pp. 53-4. These conflicts are examined in detail in D. G. Creighton, The Commercial Empire of the St. Lawrence. 1760-1850.

22

them that they had nothing to fear because the general legislature would have control over the post office, trade, commerce, navigation: ­ "all the great and important interests ... that affect the minority in Lower Canada ...".32 Galt reiterated that "the interests of trade and commerce . . . would be taken out of the category of local questions ... ".33 Cartier, stating that he could understand the concern of the commercial minority of Lower Canada lest there should be a return of the old difficulties, said these fears were groundless because "it would be for the General Government to deal with our commercial matters".34 On the basis of these statements, supporters of this historical interpretation argue that the words "Regulation of Trade and Commerce", were intended to transfer a wide range of economic matters to the control of the central authority.35 A historical interpretation which would magnify the scope of Dominion powers by attaching a limited special meaning to the phrase, "Property and Civil Rights in the Province" has also been urged. This phrase has had a long history in British North America, rising out of the relationships of French and English in the valley of the St. Lawrence. British statesmanship sought a solution of this racial problem which would preserve to French Canada the institutions which were vital to its way of life. The Quebec Act of 1774 secured "His Majesty's Canadian subjects within the Province of Quebec" in the enjoyment of their property and civil rights and provided that "in all matters of controversy relative to property and civil rights, resort shall be had to the laws of Canada as the rule for the decision of the same". In the constitutional and legislative enactments of both Upper and Lower Canada, there were a number of references to the law "relating to property and civil rights". In these references, the phrase was used to signify either the common law of England or the French customary law. That is to say, it denoted the set of laws and which were at once the expression and support of the distinctive ways of life of the French-speaking and English-speaking Canadians. The phrase found its way into sections 92 and 94 of the British North America Act. Supporters of a broad view of federal power argue that the sole purpose of introducing the phrase "Property and Civil Rights in the Province" into section 92 was to protect the unique institutions and ways of life of the Province of Quebec. They lay strong emphasis on section 94 which contemplates certain conditions under which the federal authority may secure unrestricted power to make uniform laws "relative to Property and Civil Rights in Ontario, Nova Scotia and New Brunswick". To them, this section suggests that the phrase had reference only to matters on which these three provinces were in fundamental agreement and that regional differences of interest were not involved. Ontario, Nova Scotia and New Brunswick, with their acceptance of the English common law, were in agreement on precisely those matters in which each differed so completely from Quebec. Thus it is argued that the inclusion of this phrase in section 92 was not designed to express genuinely local as against national interests nor to fix the spheres of the different levels of government but rather to protect regional interests only in so far as they were specifically cultural in character. This historical interpretation, therefore, maintains that the phrase, "Property and Civil Rights in the Province", as used in section 92, was intended to cover only what was necessary for this limited but

32 33

Confederation Debates, p. 409. Speech on the Proposed Union, p. 20. 34 Confederation Debates, p. 61. 35 See Appendix 2 ­ D. G. Creighton, British North America at Confederation, pp. 50-52

23

important purpose of safeguarding the cultural autonomy of Quebec. It appeals to statements of British officials prior to the passing of the Quebec Act of 1774 and to the instructions of the British Government to the Governors of Quebec after 1774 as showing what were long understood to be the essential laws for safeguarding the fundamental institutions and ways of life of Quebec. These instructions to the Governors repeatedly commanded that the Canadians were to enjoy the benefit and use of their own Laws, Usages and Customs in all Controversies respecting Titles of Land, and the Tenure, Descent ... of Real Estates, and the distribution of the personal property of Persons dying intestate .. . ".36 Accordingly, the phrase in question would include matters of civil law concerning the relations of citizen and citizen, such as ownership, transfer and various dealings in property, inheritance and succession by will, rights arising from personal status, such as minority and capacity to make contracts, and from the intimate domestic relations of the family. It would include a variety of other matters of private law but it would not include a number of matters inextricably bound up with the public law such as nation-wide regulation of industry and trade. Still less could it include social insurance which had formed no part of either French or English law and the idea of which was unknown to those who framed the British North America Act. In this way, it is sought to infer from historical evidence an intention to give the phrase "Property and Civil Rights in the Province" a much more restricted meaning than that given to it by the Privy Council. Historical Interpretation of the Intentions of the Fathers ­ arguments supporting a broad view of provincial powers These historical arguments as to the intentions of the Fathers of Confederation and the meaning assigned by them to general phrases such as "Peace, Order and good Government", "Regulation of Trade and Commerce" and "Property and Civil Rights in the Province" have not gone without challenge on historical grounds.37 For example, it is urged that the expression "property and civil rights" has always had a very wide meaning in our constitutional history. By Royal Edict in 1663, Louis XIV of France created a Sovereign Council at Quebec giving it the power "de connaître de toutes causes civiles et criminelles, pour juger souverainement et en dernier ressort selon les lois et ordonnances de notre royaume",38 thus, it is claimed, establishing in Quebec the entire French law which ruled New France at the time of the conquest. The Royal Proclamation of George III of England in October, 1763, which proposed to introduce the English common law into the conquered territory in North America was naturally resented as a grave injustice by the people of Quebec. The Quebec Act of 1774 which was passed to meet this grievance, repealed the proclamation of October, 1763. Section 8 of the Act declared that "His Majesty's Canadian Subjects, within the province of Quebec . . . may also hold and enjoy their Property and Possessions, together with all Customs and Usages relative thereto, and all other their Civil Rights, in as large, ample, and beneficial Manner, as if the said Proclamation. . . had not been made" and then

36 37

W. P. M. Kennedy, Statutes, Treaties and Documents, p.156. P. B. Mignault (formerly Mr. Justice Mignault of the Supreme Court of Canada), "Nos Problèmes Constitutionnels" (1928), 16 Revue du Droit, p. 577; V. Evan Gray, "The O'Connor Report on the British North America Act" (1939), 17 Canadian Raw Review, 309. 38 "to deal with all civil and criminal cases, to judge finally and in the last resort according to the laws and ordinances of our kingdom".

24

continued to provide, as quoted above, that the laws of Canada should provide the rule of decision in controversies "relative to Property and Civil Rights". This section of the Quebec Act has never been repealed. The French law in its entirety was in force in New France at the time of the conquest and the people of Quebec desired to retain it. This was the ground of their objection to the Proclamation of 1763 and the Quebec Act was passed to meet this grievance. On the basis of these facts, it is argued that the Quebec Act was intended to meet the grievance fully and that the expression, "Property and Civil Rights", as used in the Act, was intended to comprise the entire French civil law and not merely certain selected portions of it. The only thing which is important for understanding the scope of the Act is the purpose for which it was passed. The statements of British officials and the instructions of the British Government to colonial governors merely reveal their opinions. They do not give clues to the meaning of phrases used in the Quebec Act. This argument attributes a very wide meaning to the expression "Property and Civil Rights" as used in the Quebec Act, and holds that when used in later statutes, the expression bears the same extended meaning unless an express limitation is introduced. No express limitation on the meaning of the phrase occurs in the British North America Act and therefore it is concluded that the broad meaning given to it by the Privy Council is in accordance with its original historical meaning.41 The Limitations of the Historical Arguments All the historical interpretations go far afield for their arguments. There is no final certainty as to what the framers meant by the use of these phrases. The records of the time have not preserved all their opinions on all points. Clear statements of the views of some on particular points have come down to us; of the views of others, nothing is known.42 All that is certainly known is that the framers had large plans for the new Dominion and they proposed a strong central government with ample financial powers to carry the program through. The financial settlement which gave the Dominion the unrestricted taxing power, and the exclusive use of the most important revenue sources of the time (nearly four-fifths of the former provincial revenues were given to the new Dominion Government) is the most significant evidence of the leading role cast for the new Federal Government and of the responsibilities which it was expected to assume. In the provisions for reservation and disallowance of provincial legislation, the Fathers gave the Dominion legal power to supervise and control the legislatures of the provinces. At the same time, it was agreed that the state should be federal with exclusive spheres of power reserved to both the provinces and the Dominion. But the exact meanings intended to be given to the general words used in outlining these exclusive spheres of legislative power remain a matter for speculation.

For this argument, see P. B. Mignault , op. cit. The agreement reached by delegates to the Quebec Conference is acknowledged to have been a compromise and it is unlikely that the delegates, in the subsequent discussions, always distinguished clearly between the compromise and their own conception of what Confederation should have been. For a clear statement of the difficulties attending historical interpretation, see V. Evan Gray, "The O'Connor Report on the British North America Act", (1939), 17 Canadian Bar Review, 309 at pp. 315-316.

42

41

25

There is no doubt that some of the framers had wanted a legislative union. Those who expected to be members of the new Federal Government naturally wanted a large stage on which to exhibit their capacity as statesmen.43 But whatever their intentions, they could not overcome the limitations imposed by physical conditions. They could not ignore the social forces rooted in the history of the colonies any more than they could presume to bind the future indefinitely to the past. There is a further limitation inherent in all historical interpretation of political constitutions which are to govern the distant future. The framers of the constitution could not foresee the revolutionary economic and social changes that have since taken place and therefore could have no intention at all concerning them. Whatever powers Confederation was intended to confer on the Dominion, these intentions cannot provide answers for many of the questions which agitate us now for the simple reason that the conditions out of which present difficulties arise were not even remotely considered as possibilities. The intentions of the founders cannot, except by chance, provide solutions for problems of which they never dreamed.

Statute of Westminister, 1931

CHAPTER 4 OF THE STATUTES OF THE UNITED KINGDOM 22 GEORGE V An Act to give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930 [December 11, 1931] WHEREAS the delegates to His Majesty's Governments in the United Kingdom, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland, at Imperial Conferences holden at Westminster in the years of our Lord nineteen hundred and twenty-six and nineteen hundred and thirty did concur in making the declarations and resolutions set forth in the Reports of the said Conferences: And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom: And whereas it is in accord with the established constitutional position that no law hereafter made by the Parliament of the United Kingdom shall extend to any of the said Dominions as part of the law of that Dominion otherwise than at the request and with the consent of that Dominion:

43

John A. Macdonald probably had the possibility of a great future in mind when he said, "We are all mere petty provincial politicians at present; perhaps by and by some of us will rise to the level of national statesmen." Quoted by A. R. M. Lower in "Sir John A. Macdonald", (1939), 19 Dalhousie Review, p. 86.

26

And whereas it is necessary for the ratifying, confirming and establishing of certain of the said declarations and resolutions of the said Conferences that a law be made and enacted in due form by authority of the Parliament of the United Kingdom: And whereas the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland have severally requested and consented to the submission of a measure to the Parliament of the United Kingdom for making such provision with regard to the matters aforesaid as is hereafter in this Act contained: NOW, THEREFORE, BE IT ENACTED by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:-1. In this Act the expression "Dominion" means any of the following Dominions, that is to say, the Dominion of Canada, the Commonwealth of Australia, the Dominion of New Zealand, the Union of South Africa, the Irish Free State and Newfoundland. 2. (1) The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion. (2) No law and no provision of any law made after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule, or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion. 3. It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation. 4. No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof. 5. Without prejudice to the generality of the foregoing provisions of this Act, section seven hundred and thirty-five and seven hundred and thirty-six of the Merchant Shipping Act, 1894, shall be construed as though reference therein to the Legislature of a British possession did not include reference to the Parliament of a Dominion.

27

6. Without prejudice to the generality of the foregoing provisions of this Act, section four of the Colonial Courts of Admiralty Act, 1890 (which requires certain laws to be reserved for the signification of His Majesty's pleasure or to contain a suspending clause), and so much of section seven of that Act as requires the approval of His Majesty in Council to any rules of Court for regulating the practice and procedure of a Colonial Court of Admiralty, shall cease to have effect in any Dominion as from the commencement of this Act. 7. (1) Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration of the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder. (2) The provisions of section two of this Act shall extend to laws made by any of the Provinces of Canada and to the powers of the legislatures of such Provinces. (3) The powers conferred by this Act upon the Parliament of Canada or upon the legislatures of the Provinces shall be restricted to the enactment of laws in relation to matters within the competence of the Parliament of Canada or of any of the legislatures of the Provinces respectively. 8. Nothing in this Act shall be deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia or the Constitution Act of the Dominion of New Zealand otherwise than in accordance with the law existing before the commencement of this Act. 9. (1) Nothing in this Act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia. (2) Nothing in this Act shall be deemed to require the concurrence of the Parliament or Government of the Commonwealth of Australia, in any law made by the Parliament of the United Kingdom with respect to any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia, in any case where it would have been in accordance with the constitutional practice existing before the commencement of this Act that the Parliament of the United Kingdom should make that law without such concurrence. (3) In the application of this Act to the Commonwealth of Australia the request and consent referred to in section four shall mean the request and consent of the Parliament and government of the Commonwealth. 10. (1) None of the following sections of this Act, that is to say, sections two, three, four, five, and six, shall extend to a Dominion to which this section applies as part of the law of that Dominion unless

28

that section is adopted by the Parliament of the Dominion, and any Act of that Parliament adopting any section of this Act may provide that the adoption shall have effect either from the commencement of this Act or from such later date as is specified in the adopting Act. (2) The Parliament of any such Dominion as aforesaid may at any time revoke the adoption of any section referred to in sub-section (1) of this section. (3) The Dominions to which this section applies are the Commonwealth of Australia, the Dominion of New Zealand, and Newfoundland. 11. Notwithstanding anything in the Interpretation Act, 1889, the expression "Colony" shall not, in any Act of the Parliament of the United Kingdom passed after the commencement of this Act, include a Dominion or any Province or State forming part of a Dominion. 12. This Act may be cited as the Statute of Westminster, 1931.

Attorney-General for Ontario v. Attorney-General for Canada, 1947

[1947] A.C. 127 (P.C.) [In 1939 the government introduced into the Canadian Parliament Bill 9, "An Act to Amend the Supreme Court of Canada": 1. Section 54 of the Supreme Court Act, ch. 35 of the Revised Statutes of Canada, 1927, is repealed and the following substituted therefor: 54. (1) The Supreme Court shall have, hold and exercise exclusive ultimate appellate civil and criminal jurisdiction within and for Canada; and the judgment of the Court shall, in all cases, be final and conclusive. (2.) Notwithstanding any royal prerogative or anything contained in any Act of the Parliament of the United Kingdom or any Act of the Parliament of Canada or any Act of the legislature of any province of Canada or any other statute or law, no appeal shall lie or be brought from any court now or hereafter established within Canada to any court of appeal, tribunal or authority by which, in the United Kingdom, appeals or petitions to His Majesty in Council may be ordered to be heard. (3.) The Judicial Committee Act, 1833, ch. 41 of the statutes of the United Kingdom of Great Britain and Ireland, 1833, and The Judicial Committee Act, 1844, ch. 69 of the statutes of the United Kingdom of Great Britain and Ireland, 1844, and all orders, rules 29

or regulations made under the said Acts are hereby repealed in so far as the same are part of the law of Canada." 2. Nothing in this Act shall affect any application for special leave to appeal or any appeal to His Majesty in Council made or pending at the date of the coming into force of this Act. 3. This Act shall come into force upon a date to be fixed by proclamation of the Governor in Council published in the Canada Gazette." The Governor-General in Council referred the question of the validity of this Bill to the Supreme Court of Canada: three judges held that the Bill was valid, one held the Bill invalid, and one held that the Bill would be valid if it were amended so as to exclude civil actions commenced in provincial courts whose subject matter fell with provincial legislative jurisdiction. The provinces appealed immediately to the Privy Council but the decision was delayed by World War II. The judgment of the Privy Council upholding the Bill was delivered by Lord Jowitt L.C. After reviewing the provisions of the British North America Act, the implementation of the inherent prerogative of the Queen in Council to exercise an appellate jurisdiction, and the effect of the Colonial Laws Validity Act, Lord Jowitt L.C. deals with the Statute of Westminster:] ... 12 It is in the light of this Act of transcendent constitutional importance that the question must now be considered whether it is competent for the Parliament of Canada to enact not only that the Supreme Court of the Dominion shall have appellate civil and criminal jurisdiction within and for Canada, but also that that jurisdiction shall be "exclusive" and "ultimate." This question must be considered under two heads, first, in regard to appeals from the Supreme Court itself, and, secondly, in regard to appeals direct from the provincial courts to His Majesty in Council. First, then, as to appeals from the Supreme Court itself. Here the question is whether under sub-s. 1, of the substituted s. 54, the jurisdiction can validly be made "ultimate," by which, as the subsequent new sub-sections make clear, is intended the abolition of appeal from the Supreme Court to His Majesty in Council. On this question their Lordships can entertain no doubt. The power vested in the Dominion Parliament by s. 101 of the British North America Act to establish a general court of appeal for Canada was necessarily subject to the prerogative right of His Majesty, since that right was not expressly or by necessary intendment excluded, and this limitation was recognized in the first words of s. 54 of the Supreme Court Act. But that was a restriction or fetter on the legislative power of the Dominion which could be removed, and has been removed, by an Act of the Imperial Parliament, and, since it has been removed, it must be within the power of the Dominion Parliament to enact that the jurisdiction of its Supreme Court shall be ultimate. No other solution is consonant with the status of a self-governing Dominion.

30

13 Secondly, as to appeals direct from provincial courts to His Majesty in Council. It is in regard to these appeals that the validity of the Bill has been more strenuously challenged, and their Lordships have felt the familiar difficulty of determining which of two alternative meanings is to be given to an instrument, the authors of which did not contemplate the possibility of either meaning. For how could it be supposed in 1867, only two years after the passing of the Colonial Laws Validity Act, that the competence of either the Dominion or the provincial legislatures to pass laws directly repugnant to Acts of Parliament of the United Kingdom and to the common law relating to the prerogative could be the subject of judicial determination? Yet this is the question which must now be decided. In its solution their Lordships have the advantage of two recent pronouncements of the Board, Nadan v. The King, [1926] A.C. 482, and British Coal Corporation v. The King, [19351 A.C. 500, the first before, the second after, the passing of the Statute of Westminster, and it will be convenient to see what these cases decided. 14 In Nadan's case, [1926] A.C. 482, the question was as to the validity of s. 1025 of the Criminal Code of Canada if and so far as it purported to prevent the King in Council from giving effective leave to appeal against an order of a Canadian court in a criminal case. Criminal law, including the procedure in criminal matters, was, it will be remembered, one of the subjects to which, under s. 91 of the Act, the exclusive authority of the Parliament of Canada extended. It was argued that the legislative power so conferred was complete, and included power to limit the royal prerogative to entertain an appeal. The Board, after a review of the prerogative and of the manner in which the Judicial Committee had been in effect established as a court of appellate jurisdiction, rejected the argument, holding that however widely the powers conferred by s. 91 were construed they were confined to action to be taken in the Dominion and did not authorize the Dominion Parliament to annul the prerogative right of the King in Council to grant special leave to appeal, and further holding that s. 1025 of the Criminal Code, if and so far as it was intended to have that effect, was repugnant to the Judicial Committee Acts and therefore void and inoperative by virtue of the Colonial Laws Validity Act, 1865. 15 In 1935 there came before the Board the British Coal Corporation case, [19351 A.C. 500, in which the same question was raised, but with this vital difference, that in the meantime the Statute of Westminster had been passed. The section of the Criminal Code then in force purported in unambiguous terms to abolish the appeal to Ibis Majesty in Council; "Notwithstanding any royal prerogative or anything contained in the Interpretation Act or in the Supreme Court Act, no appeal shall be brought in any criminal case from any judgment or order of any court in Canada to any court of appeal or authority in which in the United Kingdom appeals or petitions to His Majesty may be heard." 16 The validity of this provision was challenged by certain persons who sought leave to appeal in a criminal case from a judgment of the court of King's Bench (Appeal Side) of the Province of Quebec. But it was challenged in vain. The Board, after once more expounding the nature of appeals to His Majesty in Council, explained the decision in Nadan's case, [1928] A.C. 482, thus: "Their Lordships are of opinion that "the judgment was based on two grounds only: (1.) that s. 1025 was repugnant to the

31

Privy Council Acts of 1833 and 1844 and was therefore void under the Colonial Laws Validity Act, 1865; (2.) that it could only be effective if construed as having an extra-territorial operation, whereas according to the law as it was in 1926 a Dominion statute could not have extra-territorial operation. These two difficulties as the law then stood could only be overcome by an Imperial Statute ... Such, their Lordships think, is the meaning of the decision in Nadan's case, [1928] A.C. 482, ...", Ibid. 516 (A.C.). The Board proceeded to consider the question whether the difficulties had been overcome. Recalling the words used by Lord Loreburn L.C., in delivering the judgment of the Judicial Committee in Attorney General for Ontario v. Attorney General for Canada, [1912] A.C. 571, 581: "Now, there can be no doubt that under this organic instrument the powers distributed between the Dominion on the one hand and the provinces on the other hand, cover the whole area of self-government within the whole area of Canada. It would be subversive of the entire scheme and policy of the Act to assume that any point of internal self-government was withheld from Canada" (words that their Lordships reiterate in regard to the present appeal), the Board concluded that both difficulties had been removed by the Statute of Westminster. "There now remain," it was said "only such limitations as flow from the Act itself, the operation of which as effecting the competence of Dominion legislation was saved by s. 7 of the statute, a section which excludes from the competence of the Dominion and provincial Parliaments any power of 'repeal, amendment or alteration' of the Act", [1935] A.C. 520. It has been properly urged on behalf of the appellants that at the conclusion of their judgment the Board observed that they were dealing only with the legal position in Canada in regard to that type of appeal in criminal matters, and that it was there neither necessary nor desirable to touch on the position as regards civil cases. It was this consideration that led Davis J. in the present case to give the qualified opinion already cited in regard to the validity of the referred Bill. This opinion rightly recognizes that whether or not the reasoning of the Board in the British Coal Corporation case, [1938] A.C. 500, extends beyond the subject-matter of legislation which was by s. 91 of the Act confided to the Dominion Parliament, at any rate it cannot be limited to one only of the twenty-nine classes of subject-matter enumerated in that section, and that just as an appeal to His Majesty in Council may by Dominion legislation be abrogated in respect of "the criminal law ... including the procedure in criminal matters," so it may be abrogated in respect of, e.g., class 21 "bankruptcy and insolvency" or class 22 "patents of invention and discovery." 17 But the conclusion reached by Davis J. involves a distinction which their Lordships would not willingly adopt. For if, as he holds, the subject-matter provides the test whether the right of appeal may be abrogated by Dominion legislation so that it may not be abrogated in respect of classes of subjects assigned exclusively to the provinces under s. 92, a strange result would follow. It must be remembered that in the provincial courts the subject-matter of litigation may arise as well under Dominion as under provincial legislation. The judicial and legislative spheres are not coterminous, provincial courts determining all questions except those for which a special court is set up under s. 101, whether the rights of the parties spring from the common law or Dominion or provincial statutes. Thus, if the right of the Dominion Parliament to prohibit appeals to His Majesty in Council from a provincial court depended on the subject-matter in suit, the result, would be that from the same court 32

an appeal might lie in one suit to the Supreme Court of Canada only but in another to that court or to His Majesty in Council, nor is it impossible that in the same suit two or more questions might be raised in respect of which different rights of appeal would arise. This result is yet more remarkable when it is remembered how wide is the scope of those classes of subjects which, falling within s. 91 of the Act, can on this hypothesis be excluded from appeal to His Majesty in Council. Only the residue of civil cases, in which the rights of the parties were determinable by reference to other than Dominion legislation, would remain the subject of such appeal. 18 Therefore, while their Lordships give full weight to the observation with which the judgment in the British Coal Corporation case, [1935] A.C. 500, concluded and do not doubt that that case rightly decided that the Dominion Parliament was competent to exclude appeals in criminal cases for the reasons therein appearing, they must observe that that decision can be supported on wider grounds which cover not only criminal cases and not only civil cases falling within the subject-matter of s. 91, but also every other case which can be brought before any provincial court in Canada. In coming to this conclusion their Lordships do not think it useful to embark on a nice discrimination between the legislative powers contained in ss. 91 and 92 respectively of the Act. Nor, as it appears to them, is it necessary to determine whether the words of head 14 of s. 92, "The administration of justice in the province" would, if they were disembarrassed of any context, be apt to embrace legislation in regard to appeals to His Majesty in Council. There appear to be cogent reasons for thinking that they would not. But their Lordships do not make this the ground of their decision; for it is elsewhere, it is in s. 101 of the Act that the solution lies. 19 In his judgment in the case under appeal the former Chief Justice of Canada, Sir Lyman Duff, used these words: "Assuming even that s. 92 gives some authority to the legislatures [of the provinces] in respect of appeals to the Privy Council, that cannot detract from the power of Parliament under s. 101. Whatever is granted by the words of the section, read and applied as prima facie intended to endow Parliament with power to effect high political objects concerning the self-government of the Dominion (s. 3 of the B.N.A. Act) in the matter of judicature, is to be held and exercised as a plenary power in that behalf with all ancillary powers necessary to enable Parliament to attain its objects fully and completely. So read it imports authority to establish a court having supreme and final appellate jurisdiction in Canada.," [1940] S.C.R. (Can.) 63. The vital words in the passage cited, with which their Lordships are in full agreement, are the words in the last line "and final." But in the opinion of their Lordships the same considerations lead to the conclusion that the court so established must have not only "final", or "ultimate" but also exclusive appellate jurisdiction. They would emphasize that s. 101 confers a legislative power on the Dominion Parliament which by its terms overrides any power conferred by s. 92 on the provinces or preserved by s. 129. "Notwithstanding anything in this Act" are words in s. 101 which cannot be ignored. They vest in the Dominion a plenary authority to legislate in regard to appellate jurisdiction, which is qualified only by that which lies outside the Act, namely, the sovereign power of the Imperial Parliament. This was fully recognized in Crown Grain Co., Ld. v. Day, [1908] A.C. 504. 33

20 What, then, is the power of the Dominion Parliament since the Statute of Westminster has come into operation? It is useful to examine what the position would be if now, for the first time, the Dominion legislature thought fit to exercise its power under s. 101. Nor is this a fanciful or inept mode of examination, for the power is to provide "from time to time" for a general court of appeal. To their Lordships it appears reasonably plain that, since, in the words used by Lord Robertson in delivering the opinion of the Board in the Crown Grain Co. case, Ibid. 507 (A.C.): "the subject in conflict belongs primarily to the subject-matter committed to the Dominion Parliament, namely, the establishment of the Court of Appeal for Canada," to that Parliament also must belong the power not only to determine in what cases and under what conditions the appellate jurisdiction of that court may be invoked, but also to deny appellate jurisdiction to any other court. The natural attribute of sovereign power was no doubt qualified by an external constitutional limitation, namely, the existence of imperial statutes, but, given the power to abrogate such statutes, the authority conferred by s. 101 stands unqualified and absolute. 21 It is possible to regard this matter from a somewhat wider point of view, as, indeed, it is regarded in the judgment of Sir Lyman Duff. [Giving full weight to the circumstances of the Union and to the determination shown by the provinces as late as the Imperial Conferences, which led to the Statute of Westminster, that their rights should be unimpaired, nevertheless, it appears to their Lordships that it is not consistent with the political conception which is embodied in the British Commonwealth of Nations that one member of that Commonwealth should be precluded from setting up, if it so desires, a Supreme Court of Appeal having a jurisdiction both ultimate and exclusive of any other member. The regulation of appeals is, to use the words of Lord Sankey in the British Coal Corporation case, [1935] A.C. 500, a "prime element in Canadian sovereignty," which would be impaired if at the will of its citizens recourse could be had to a tribunal, in the constitution of which it had no voice. It is, as their Lordships think, irrelevant that the question is one that might have seemed unreal at the date of the British North America Act. To such an organic statute the flexible interpretation must be given which changing circumstances require, and it would be alien to the spirit, with which the preamble to the Statute of Westminster is instinct, to concede anything less than the widest amplitude of power to the Dominion legislature under s. 101 of the Act.] 22 In this connexion some argument was addressed to their Lordships on the importance of uniformity of legal decision, which, it was urged, could not be secured if appeal lay indifferently to the Supreme Court of Canada or to His Majesty in Council. For a decision of the Supreme Court would at least be final, though its jurisdiction would not on this hypothesis be exclusive. Against this it was contended that the British North America Act contained in s. 94 a provision whereby the postulated uniformity of law could be obtained. In their Lordships' opinion this section provides an imperfect remedy for a state of affairs in which an important Dominion Act might be finally interpreted in one way by the Supreme Court for a province which did not admit appeals to His Majesty in Council and in another way by the Judicial Committee for a province which did admit such appeals, neither tribunal admitting the authority of the other. But it is the possibility of such a conflict, creating a different law 34

for different provinces out of the same Dominion Act, which points the way to a truer interpretation of the British North America Act in the light of the Statute of Westminster. It is, in fact, a prime element in the self-government of the Dominion, that it should be able to secure through its own courts of justice that the law should be one and the same for all its citizens. This result is attainable only if s. 101 now authorizes the establishment of a court with final and exclusive appellate jurisdiction. The words used by Lord Macmillan in delivering the opinion of the Board in Croft v. Dunphy, [1933] A.C. 158, on a question that arose in regard to one of the specific subjects enumerated in s. 91 are equally applicable in the consideration of s. 101; "their Lordships," he said, "see no reason to restrict the permitted scope of such legislation by any other consideration than is applicable to the legislation of a fully sovereign state", [1933] A.C. 183. 23 It is right to conclude with some observations on s. 7 of the Statute of Westminster on which counsel for the appellants strongly relied. Sub-section 1 of s. 7 is in general terms, and it was urged that to interpret the statute as vesting in the Dominion Parliament a power which it did not before possess was in effect to repeal or amend or, at least, to alter the British North America Act. But their Lordships cannot accept this reasoning. Necessarily the effect of the statute is to amend and alter the Act in so far as from the operation of the statute there arises a new power in the legislatures of both the Dominion and the provinces. The question is, in which legislature the power is vested in regard to this particular subject-matter. That is a question of construction on which their Lordships have stated their opinion. Sub-section 2 does not call for further comment here. In regard to sub-s. 3 the same observations appear to apply as to sub-s. 1. If on the true construction of the British North America Act the conclusion had been that the power to legislate for the abrogation of appeals to His Majesty in Council was vested under s. 92 in a provincial legislature, that would have been an end of the matter. It is just because their Lordships have come to a different conclusion that sub-s. 3 does not assist the appellants. 24 Their Lordships are of opinion that this appeal fails, and that it ought to be declared that Bill 9 of the Fourth Session of the Eighteenth Parliament of Canada, entitled "An "Act to amend the Supreme Court Act," is wholly intra vires of the Parliament of Canada, and they will humbly advise His Majesty accordingly.

Reference re Amendment of the Constitution of Canada, 1982

[1981] 1 S.C.R. 753 APPEALS from a judgment of the Court of Appeal of Manitoba [(1981), 117 D.L.R. (3d) 1; [1981] 2 W.W.R. 193], a judgment of the Court of Appeal of Newfoundland [(1981), 118 D.L.R. (3d) 1, 82 A.P.R. 503, 29 Nfld. & P.E.I.R. 503] and a judgment of the Court of Appeal of Quebec [[1981] C.A. 80; (1981), 120 D.L.R. 385], relative to a draft Resolution containing a joint address to Her Majesty The Queen concerning the Constitution of Canada.

35

THE CHIEF JUSTICE AND DICKSON, BEETZ, ESTEY, McINTYRE, CHOUINARD AND LAMER JJ.:-I Three appeals as of right are before this Court, concerning in the main common issues. They arise out of three References made, respectively, to the Manitoba Court of Appeal [(1981), 117 D.L.R. (3d) 1], to the Newfoundland Court of Appeal [(1981), 118 D.L.R. (3d) 1] and to the Quebec Court of Appeal [[1981] C.A. 80; (1981), 120 D.L.R. (3d) 385] by the respective governments of the three provinces. Three questions were posed in the Manitoba Reference, as follows:

1.

If the amendments to the Constitution of Canada sought in the 'Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada', or any of them, were enacted, would federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments be affected, and if so, in what respect or respects? Is it a constitutional convention that the House of Commons and Senate of Canada will not request Her Majesty the Queen to lay before the Parliament of the United Kingdom of Great Britain and Northern Ireland a measure to amend the Constitution of Canada affecting federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments without first obtaining the agreement of the provinces? Is the agreement of the provinces of Canada constitutionally required for amendment to the Constitution of Canada where such amendment affects federal-provincial relationships or alters the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments?

2.

3.

The same three questions were asked in the Newfoundland Reference and, in addition, a fourth question was put in these terms:

4.

If Part V of the proposed resolution referred to in question 1 is enacted and proclaimed into force could

(a)

the Terms of Union, including terms 2 and 17 thereof contained in the Schedule to the British North America Act, 1949 (12-13 George VI, c. 22 (U.K.)), or section 3 of the British North America Act, 1871 (34-35 Victoria, c. 28 (U.K.))

(b)

be amended directly or indirectly pursuant to Part V without the consent of the Government, Legislature or a majority of the people of the Province of Newfoundland voting in a referendum held pursuant to Part V?

36

In the Quebec Reference there was a different formulation, two questions being asked which read: [TRANSLATION] A. If the Canada Act and the Constitution Act, 1981 should come into force and if they should be valid in all respects in Canada, would they affect:

(i)

the legislative competence of the provincial legislatures in virtue of the Canadian Constitution? the status or role of the provincial legislatures or governments within the Canadian Federation?

(ii)

B.

Does the Canadian Constitution empower, whether by statute, convention or otherwise, the Senate and the House of Commons of Canada to cause the Canadian Constitution to be amended without the consent of the provinces and in spite of the objection of several of them, in such a manner as to affect:

(i)

the legislative competence of the provincial legislatures in virtue of the Canadian Constitution? the status or role of the provincial legislatures or governments within the Canadian Federation? [....] II

(ii)

The References in question here were prompted by the opposition of six provinces, later joined by two others, to a proposed Resolution which was published on October 2, 1980 and intended for submission to the House of Commons and as well to the Senate of Canada. It contained an address to be presented to Her Majesty the Queen in right of the United Kingdom respecting what may generally be referred to as the Constitution of Canada. The address laid before the House of Commons on October 6, 1980, was in these terms: To the Queen's Most Excellent Majesty: Most Gracious Sovereign: We, Your Majesty's loyal subjects, the House of Commons of Canada in Parliament assembled, respectfully approach Your Majesty, requesting that you may graciously be pleased to cause to be laid before the Parliament of the United Kingdom a measure containing the recitals and clauses hereinafter set forth: An Act to give effect to a request by the Senate and House of Commons of Canada 37

Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that purpose. Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. The Constitution Act, 1981 set out in Schedule B to this Act is hereby enacted for and shall have the force of law in Canada and shall come into force as provided in that Act. 2. No Act of Parliament of the United Kingdom passed after the Constitution Act, 1981 comes into force shall extend to Canada as part of its law. 3. So far as it is not contained in Schedule B, the French version of this Act is set out in Schedule A to this Act and has the same authority in Canada as the English version thereof. 4. This Act may be cited as the Canada Act. It will be noticed that included in the terms of the address are the words "cause to be laid before the Parliament of the United Kingdom" and that they are reflected in Question B put before the Quebec Court of Appeal. The proposed Resolution, as the terms of the address indicate, includes a statute which, in turn, has appended to it another statute providing for the patriation of the British North America Act (and a consequent change of name), with an amending procedure, and a Charter of Rights and Freedoms including a range of provisions (to be entrenched against legislative invasion) which it is unnecessary to enumerate. The proposed Resolution carried the approval of only two provinces, Ontario and New Brunswick, expressed by their respective governments. The opposition of the others, save Saskatchewan, was based on their assertion that both conventionally and legally the consent of all the provinces was required for the address to go forward to Her Majesty with the appended statutes. Although there was general agreement on the desirability of patriation with an amending procedure, agreement could not be reached at conferences preceding the introduction of the proposed Resolution into the House of Commons, either on the constituents of such a procedure or on the formula to be embodied therein, or on the inclusion of a Charter of Rights. The References to the respective courts of appeal were made and the hearings on the questions asked were held before the proposed Resolution was adopted. This fact underlays the unwillingness of judges in the Manitoba Court of Appeal to answer Question I; changes might be made to the proposed Resolution in the course of debate and hence the assertion of prematurity. The proposed Resolution, as adopted by the House of Commons on April 23, 1981 and by the Senate on April 24, 1981, achieved its final form (there were but a few amendments to the original proposal) almost on the eve of the hearings in this Court on the three appeals. Indeed, the opinions of the courts

38

in all three References were given and certified before the ultimate adoption of the proposed Resolution. The result of its adoption by the Senate and by the House of Commons was to change the position of the Attorney General of Canada and of his two supporting interveners on the propriety of answering Question 1 in the Manitoba and Newfoundland References. He abandoned his initial contention that the question should not be answered. [....] VI On the footing of the adopted Resolution, the Attorney General of Canada agrees that Question 1 in the Manitoba and Newfoundland References and Question A in the Quebec Reference should be answered in the affirmative as is asserted by the Attorneys General of Manitoba, Newfoundland and Quebec. Certainly, it is plain that under the terms of the enactments proposed in the Resolution, the legislative powers of the provincial legislatures would be affected, indeed, limited by the Charter of Rights and Freedoms. The limitations of the proposed Charter of Rights and Freedoms on legislative power apply both at the federal level and the provincial level. This does not, however, alter the fact that there is an intended suppression of provincial legislative power. Moreover, the enhancement of provincial legislative authority under some provisions of the proposed enactment, as for example, in respect of resource control, including interprovincial export, (albeit subject to federal paramountcy) and in respect of taxing power does not alter the fact that there is an effect on existing federalprovincial relationships under these and other provisions of the draft statute intended for submission to enactment by the Parliament of the United Kingdom. The simple answer "yes" to Question 1 and Question A answers both of them sufficiently, even though Question 1 asks also "in what respect or respects would federal-provincial relationships and provincial powers, rights or privileges be affected. Counsel were agreed that it would carry them and the Court into considerable exposition of detail if this aspect of Question 1 were to be explored; for the time being, an affirmative answer to the primary issue in the question would satisfy all concerned. VII Coming now to Question 3 in the Manitoba and Newfoundland References and Part B (on its legal side) in the Quebec Reference. By reason of the use of the words "constitutionally required" in Question 3, the question imports both legal and conventional issues, and as the latter are dealt with in separate reasons, what follows is concerned only with the legal side of Question 3 in the Manitoba and Newfoundland References and Part B (on its legal side) in the Quebec Reference, which meets the submissions of all counsel on this issue. There are two broad aspects to the matter under discussion which divide into a number of separate issues: (1) the authority of the two federal Houses to proceed by resolution where provincial powers and federal-provincial relationships are thereby affected and (2) the role or authority of the Parliament 39

of the United Kingdom to act on the Resolution. The first point concerns the need of legal power to initiate the process in Canada; the second concerns legal power or want of it in the Parliament of the United Kingdom to act on the Resolution when it does not carry the consent of the provinces. The submission of the eight provinces which invites this Court to consider the position of the British Parliament is based on the Statute of Westminster, 1931 in its application to Canada. The submission is that the effect of the Statute is to qualify the authority of the British Parliament to act on the federal Resolution without previous provincial consent where provincial powers and interests are thereby affected, as they plainly are here. This issue will be examined later in these reasons. Two observations are pertinent here. First, we have the anomaly that although Canada has international recognition as an independent, autonomous and self-governing state, as, for example, a founding member of the United Nations, and through membership in other international associations of sovereign states, yet it suffers from an internal deficiency in the absence of legal power to alter or amend the essential distributive arrangements under which legal authority is exercised in the country, whether at the federal or provincial level. When a country has been in existence as an operating federal state for more than a century, the task of introducing a legal mechanism that will thereafter remove the anomaly undoubtedly raises a profound problem. Secondly, the authority of the British Parliament or its practices and conventions are not matters upon which this Court would presume to pronounce. The proposition was advanced on behalf of the Attorney General of Manitoba that a convention may crystallize into law and that the requirement of provincial consent to the kind of resolution that we have here, although in origin political, has become a rule of law. (No firm position was taken on whether the consent must be that of the governments or that of the legislatures.) In our view, this is not so. No instance of an explicit recognition of a convention as having matured into a rule of law was produced. The very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement. The attempted assimilation of the growth of a convention to the growth of the common law is misconceived. The latter is the product of judicial effort, based on justiciable issues which have attained legal formulation and are subject to modification and even reversal by the courts which gave them birth when acting within their role in the state in obedience to statutes or constitutional directives. No such parental role is played by the courts with respect to conventions. [....] VIII

40

Turning now to the authority or power of the two federal Houses to proceed by resolution to forward the address and appended draft statutes to Her Majesty the Queen for enactment by the Parliament of the United Kingdom. There is no limit anywhere in law, either in Canada or in the United Kingdom (having regard to s. 18 of the British North America Act, as enacted by 1875 (U.K.), c. 38, which ties the privileges, immunities and powers of the federal Houses to those of the British House of Commons) to the power of the Houses to pass resolutions. Under s. 18 aforesaid, the federal Parliament may by statute define those privileges, immunities and powers, so long as they do not exceed those held and enjoyed by the British House of Commons at the time of the passing of the federal statute. May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament (19th ed., 1976), a leading treatise on British parliamentary proceedings, states (at p. 382): Every question, when agreed to, assumes the form either of an order or of a resolution of the House. One or the other of these terms is applied in the records of the House to every motion which has been agreed to, and the application of the term is carefully regulated with reference to the content of the motion. By its orders the House directs its committees, its members, its officers, the order of its own proceedings and the acts of all persons whom they concern; by its resolutions the House declares its own opinions and purposes. This passage is repeated almost verbatim in Beauchesne's Rules and Forms of the House of Commons of Canada (5th ed., 1978), at p. 150. The Senate and House of Commons Act, R.S.C. 1970, c. S-8, ss. 4 and 5, reinforces what is set out in s. 18 of the British North America Act, as amended in 1875. How Houses of Parliament proceed, how a provincial legislative assembly proceeds is in either case a matter of self-definition, subject to any overriding constitutional or self-imposed statutory or indoor prescription. It is unnecessary here to embark on any historical review of the "court" aspect of Parliament and the immunity of its procedures from judicial review. Courts come into the picture when legislation is enacted and not before (unless references are made to them for their opinion on a bill or a proposed enactment). It would be incompatible with the self-regulating --"inherent" is as apt a word-authority of Houses of Parliament to deny their capacity to pass any kind of resolution. Reference may appropriately be made to art. 9 of the Bill of Rights of 1689, undoubtedly in force as part of the law of Canada, which provides that "Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament". It is said, however, that where the resolution touches provincial powers, as the one in question here does, there is a limitation on federal authority to pass it on to Her Majesty the Queen unless there is provincial consent. If there is such a limitation, it arises not from any limitation on the power to adopt resolutions but from an external limitation based on other considerations which will shortly be considered. Although the British North America Act itself is silent on the question of the power of the federal Houses to proceed by resolution to procure an amendment to the Act by an address to Her Majesty, its 41

silence gives positive support as much as it may reflect the negative. Quebec Question B suggests in its formulation that there is the necessity of affirmative proof of the power asserted, but it would be equally consistent with constitutional precedent to require disproof. Moreover, if the two federal Houses had the power to proceed by resolution, how is it that they have lost it? For the moment, it is relevant to point out that even in those cases where an amendment to the British North America Act was founded on a resolution of the federal Houses after having received provincial consent, there is no instance, save in the British North America Act, 1930 where such consent was recited in the resolution. The matter remained, in short, a conventional one within Canada, without effect on the validity of the resolution in respect of United Kingdom action. [....] IX This Court is being asked, in effect, to enshrine as a legal imperative a principle of unanimity for constitutional amendment to overcome the anomaly--more of an anomaly today than it was in 1867-that the British North America Act contained no provision for effecting amendments by Canadian action alone. Although Saskatchewan has, alone of the eight provinces opposing the federal package embodied in the Resolution, taken a less stringent position, eschewing unanimity but without quantifying the substantial support that it advocates, the provinces, parties to the References and to the appeals here, are entitled to have this Court's primary consideration of their views. The effect of those views, if they are correct in their legal position, is, of course, to leave at least the formal amending authority in the United Kingdom Parliament. Reference will be made later to the ingredients of the arguments on legality. The effect of the present Resolution is to terminate any need to resort to the United Kingdom Parliament in the future. In line with its rejection of unanimity, Saskatchewan asserted that it sees no violation of the principles of federalism in the Resolution so far as concerns the amending formula proposed thereby. An important question was raised by the Saskatchewan position which invited this Court to take a severable view of the substance of the Resolution, namely, to "hive off" the Charter of Rights and Freedoms and perhaps other elements, save the amending formula and the patriation feature. This was not the position of the Attorney General of Canada nor of any of the other provincial Attorneys General; they were all of the view that it was the whole package that was involved in the legal issue posed by Question 3 and Question B. Indeed, the legal arguments pro and con do not engage the contents of the package, and it is impossible to qualify the issue of legality by considerations of fairness or equity or political acceptability or even judicial desirability. The stark legal question is whether this Court can enact by what would be judicial legislation a formula of unanimity to initiate the amending process which would be binding not only in Canada but also on the Parliament of the United Kingdom with which amending authority would still remain. It would be 42

anomalous indeed, overshadowing the anomaly of a constitution which contains no provision for its amendment, for this Court to say retroactively that in law we have had an amending formula all along, even if we have not hitherto known it; or, to say, that we have had in law one amending formula, say from 1867 to 1931, and a second amending formula that has emerged after 1931. No one can gainsay the desirability of federal-provincial accord of acceptable compromise. That does not, however, go to legality. As Sir William Jowitt said, and quoted earlier, we must operate the old machinery perhaps one more time. [....] XII This leads to the submissions made on the sovereignty of the provinces in respect of their powers under the British North America Act, the term "sovereignty" being modified in the course of argument to "supremacy". Allied to this was the contention that Canada cannot do indirectly what it cannot do directly; it could not by an enactment of its own accomplish that which is proposed by the Resolution. Such an enactment would be clearly ultra vires as to most of the provisions put forward by the Resolution, and it should not be able to improve its position in law by invoking the aid of the United Kingdom Parliament. Moreover, even if the Parliament of the United Kingdom retained its formal legal authority over the British North America Act, as one of its enactments, it was in the words used by the late and at the time, former Justice Rand, "a bare legislative trustee", subject as a matter of law to the direction of the beneficiaries, namely, the Dominion and the provinces, in respect of the Resolution. It will be convenient to deal at this point with the "direct-indirect" contention and with the notion of legislative trusteeship, before returning to the main submission on provincial legislative supremacy. That submission involves a consideration of the character of Canadian federalism and it must, of course, be carefully assessed. The direct-indirect contention, taken by itself, amounts to this: that whether or not the federal Houses can seek to obtain enactment of the draft statute appended to the Resolution, it would, in any event, be illegal to invoke United Kingdom authority to do for Canada what it cannot do itself. The maxim "you cannot do indirectly what you cannot do directly" is a much abused one. It was used to invalidate provincial legislation in Madden v. Nelson and Fort Sheppard Railway Co. [[1899] A.C. 626]. It is a pithy way of describing colourable legislation: see Ladore v. Bennett [ [1939] A.C. 468], at p. 482. However, it does not preclude a limited legislature from achieving directly under one head of legislative power what it could not do directly under another head. The question, of course, remains whether the two federal Houses may alone initiate and carry through the process to invoke the competence of the United Kingdom Parliament. At least with regard to the amending formula the process in question here concerns not the amendment of a complete constitution but rather the completion of an incomplete constitution.

43

We are involved here with a finishing operation, with fitting a piece into the constitutional edifice; it is idle to expect to find anything in the British North America Act that regulates the process that has been initiated in this case. Were it otherwise, there would be no need to resort to the Resolution procedure invoked here, a procedure which takes account of the intergovernmental and international link between Canada and Great Britain. There is no comparable link that engages the provinces with Great Britain. Moreover, it is to confuse the issue of process, which is the basic question here, with the legal competence of the British Parliament when resort is had to the direct-indirect argument. The legal competence of that Parliament, for the reasons already given, remains unimpaired, and it is for it alone to determine if and how it will act. [....] XIII At bottom, the challenge to the competency in law of the federal Houses to seek enactment by the Parliament of the United Kingdom of the statutes embodied in the Resolution is based on the recognized supremacy of provincial legislatures in relation to the powers conferred upon them under the British North America Act, a supremacy vis-à-vis the federal Parliament. Reinforcement, or perhaps the foundation of this supremacy is said to lie in the nature or character of Canadian federalism. The supremacy position, taken alone, needs no further justification that that found in the respective formulations of the powers of Parliament and the provincial legislatures in ss. 91 and 92 of the British North America Act. Federal paramountcy is, however, the general rule in the actual exercise of these powers. This notwithstanding, the exclusiveness of the provincial powers (another way of expressing supremacy and more consonant with the terms of the British North America Act) cannot be gainsaid. The long list of judicial decisions, beginning with Hodge v. The Queen [(1883), 9 App. Cas. 117] and carrying through such cases as Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick [[1892] A.C. 437] and the Labour Conventions case, supra, where the Privy Council expressed its "watertight compartments view" of legislative power (at p. 354) provide adequate support for the principle of exclusiveness or supremacy but, of course, within the limits of the British North America Act. Although there are what have been called unitary features in the British North America Act, involving overriding powers (to be distinguished from paramountcy of legislation) in the federal Parliament and government, their modification of exclusive provincial authority does not detract from that authority to any substantial degree. Thus, the federal declaratory power under s. 92(10)(c) has a limited operation; reservation and disallowance of provincial legislation, although in law still open, have, to all intents and purposes, fallen into disuse. The fact of appointment of the Lieutenant Governors of the provinces by the central government does not, as a practical matter, have any significance for provincial powers when, under the law, the Lieutenant Governor is as much the personal representative of the Crown as is the Governor General. In each case, the representation is, of course,

44

in respect of the powers respectively assigned to Parliament and the legislatures. Moreover, since there is an international, a foreign relations aspect involved in the relationship of Canada and Great Britain, any formal communication between a province and its Lieutenant Governor with the United Kingdom Government or with the Queen, must be through the federal Government or through the Governor General. It is important in this connection to emphasize that the Government of Canada had, by 1923, obtained recognition internationally of its independent power to enter into external obligations when it negotiated the Halibut Treaty with the United States. Great Britain understood this by that time as did the United States. The subsequent Imperial Conferences added confirmation, sanctified by the Statute of Westminster, 1931 which also put internal independence from Great Britain on a legal foundation. The remaining badge of subservience, the need to resort to the British Parliament to amend the British North America Act, although preserved by the Statute of Westminster, 1931 did not carry any diminution of Canada's legal right in international law, and as a matter of Canadian constitutional law, to assert its independence in external relations, be they with Great Britain or other countries. The matter is emphasized by the judgment of this Court in Reference Re: Offshore Mineral Rights of British Columbia [[1967] S.C.R. 792], at p. 816. This is a relevant consideration in the appeals which are before this Court. What is put forward by the provinces which oppose the forwarding of the address without provincial consent is that external relations with Great Britain in this respect must take account of the nature and character of Canadian federalism. It is contended that a legal underpinning of their position is to be found in the Canadian federal system as reflected in historical antecedents, in the pronouncements of leading political figures and in the preamble to the British North America Act. The arguments from history do not lead to any consistent view or any single view of the nature of the British North America Act; selective interpretations are open and have been made; see Report of the Royal Commission on Dominion-Provincial Relations (1940), Book 1, at pp. 29 ff. History cannot alter the fact that in law there is a British statute to construe and apply in relation to a matter, fundamental as it is, that is not provided for by the statute. Practices which took account of evolving Canadian independence, did, of course, develop. They had both intra-Canadian and extra-Canadian aspects in relation to British legislative authority. The former have already been canvassed, both in the reasons on Question 2 and Question B and, to a degree, in these reasons. Theories, whether of a full compact theory (which, even factually, cannot be sustained, having regard to federal power to create new provinces out of federal territories, which was exercised in the creation of Alberta and Saskatchewan) or of a modified compact theory, as urged by some of the provinces, operate in the political realm, in political science studies. They do not engage the law, save as they might have some peripheral relevance to actual provisions of the British North America Act and its interpretation and application. Thus it is, to take one example, that in the Nova Scotia Interdelegation case, Attorney General of Nova Scotia v. Attorney General of Canada [[1951] S.C.R. 31], Rinfret C.J. said (at p. 34):

45

The constitution of Canada does not belong either to Parliament, or to the Legislatures; it belongs to the country and it is there that the citizens of the country will find the protection of the rights to which they are entitled. It is part of that protection that Parliament can legislate only on the subject matters referred to it by section 91 and that each Province can legislate exclusively on the subject matters referred to it by section 92. This was said, however, in the context of an issue raised under the terms of the British North America Act, the issue being whether there could be interdelegation between the Parliament of Canada and the provincial legislatures of their respective legislative powers which, as to each level of authority, were conferred as exclusive powers. In the Court below, the Nova Scotia Supreme Court en banc, Chief Justice Chisholm remarked that the British North America Act is not a counter for the exchange of constitutional wares: see Re Delegation of Legislative Jurisdiction [[1948] 4 D.L.R. 1], at p. 6. The statement, above-quoted, of Chief Justice Rinfret carries no independent legal consequence; it simply underscores the imperative character of the distribution of legislative power. In short, as in the attempt to argue crystallization of convention into law, there is nothing in the reference to theories of federalism reflected in some case law that goes beyond their use as an aid to a justiciable question raised apart from them. So too, with pronouncements by political figures or persons in other branches of public life. There is little profit in parading them. Support for a legal requirement of provincial consent to the Resolution that is before this Court, consent which is also alleged to condition United Kingdom response to the Resolution, is, finally, asserted to lie in the preamble of the British North America Act itself, and in the reflection, in the substantive terms of the Act, of what are said to be fundamental presuppositions in the preamble as to the nature of Canadian federalism. The preamble recites (and the whole of it is reproduced) the following: Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire: And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared: And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America:

46

What is stressed is the desire of the named provinces "to be federally united ... with a Constitution similar in Principle to that of the United Kingdom". The preamble speaks also of union into "One Dominion" and of the establishment of the Union "by Authority of Parliament", that is the United Kingdom Parliament. What, then, is to be drawn from the preamble as a matter of law? A preamble, needless to say, has no enacting force but, certainly, it can be called in aid to illuminate provisions of the statute in which it appears. Federal union "with a Constitution similar in Principle to that of the United Kingdom" may well embrace responsible government and some common law aspects of the United Kingdom's unitary constitutionalism, such as the rule of law and Crown prerogatives and immunities. The "rule of law" is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority. Legislative changes may alter common law prescriptions, as has happened with respect to Crown prerogatives and immunities. There is also an internal contradiction in speaking of federalism in the light of the invariable principle of British parliamentary supremacy. Of course, the resolution of this contradiction lies in the scheme of distribution of legislative power, but this owes nothing to the preamble, resting rather on its own exposition in the substantive terms of the British North America Act. There is not and cannot be any standardized federal system from which particular conclusions must necessarily be drawn. Reference was made earlier to what were called unitary features of Canadian federalism and they operate to distinguish Canadian federalism from that of Australia and that of the United States. Allocations of legislative power differ as do the institutional arrangements through which power is exercised. This Court is being asked by the provinces which object to the so-called federal "package" to say that the internal distribution of legislative power must be projected externally, as a matter of law, although there is no legal warrant for this assertion and, indeed, what legal authority exists (as in s. 3 of the Statute of Westminster, 1931) denies this provincial position. At bottom, it is this distribution, it is the allocation of legislative power as between the central Parliament and the provincial legislatures, that the provinces rely on as precluding unilateral federal action to seek amendments to the British North America Act that affect, whether by limitation or extension, provincial legislative authority. The Attorney General of Canada was pushed to the extreme by being forced to answer affirmatively the theoretical question whether in law the federal government could procure an amendment to the British North America Act that would turn Canada into a unitary state. That is not what the present Resolution envisages because the essential federal character of the country is preserved under the enactments proposed by the Resolution. That, it is argued, is no reason for conceding unilateral federal authority to accomplish, through invocation of legislation by the United Kingdom Parliament, the purposes of the Resolution. There is here, however, an unprecedented situation in which the one constant since the enactment of the British North America Act in 1867 has been the legal authority of the United Kingdom Parliament to

47

amend it. The law knows nothing of any requirement of provincial consent, either to a resolution of the federal Houses or as a condition of the exercise of United Kingdom legislative power. In the result, the third question in the Manitoba and Newfoundland cases should, as a matter of law, be answered in the negative and Question B should, in its legal aspect, be answered in the affirmative. [....] MARTLAND, RITCHIE, DICKSON, BEETZ, CHOUINARD AND LAMER JJ.:-The second question in the Manitoba Reference [(1981), 117 D.L.R.(3d) 1] and Newfoundland Reference [(1981), 118 D.L.R.(3d) 1] is the same:

2.

Is it a constitutional convention that the House of Commons and Senate of Canada will not request Her Majesty the Queen to lay before the Parliament of the United Kingdom of Great Britain and Northern Ireland a measure to amend the Constitution of Canada affecting federalprovincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments without first obtaining the agreement of the provinces?

As for Question B in the Quebec Reference [ [1981] C.A. 80; (1981), 120 D.L.R. (3d) 385], it reads in part as follows: [TRANSLATION]

B.

Does the Canadian Constitution empower ... by ... convention ... the Senate and the House of Commons of Canada to cause the Canadian Constitution to be amended without the consent of the provinces and in spite of the objection of several of them, in such a manner as to affect:

(i) the legislative competence of the provincial legislatures in virtue of the Canadian Constitution? (ii) the status or role of the provincial legislatures or governments within the Canadian Federation?

In these questions, the phrases "Constitution of Canada" and "Canadian Constitution" do not refer to matters of interest only to the federal government or federal juristic unit. They are clearly meant in a broader sense and embrace the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state. They will be used in the same broad sense in these reasons. The meaning of the second question in the Manitoba and Newfoundland References calls for further observations. 48

As will be seen later, counsel for several provinces strenuously argued that the convention exists and requires the agreement of all the provinces. However, we did not understand any of them to have taken the position that the second question in the Manitoba and Newfoundland References should be dealt with and answered as if the last part of the question read ... without obtaining the agreement of all the provinces? Be that as it may, the question should not in our view be so read. It would have been easy to insert the word "all" into the question had it been intended to narrow its meaning. But we do not think it was so intended. The issue raised by the question is essentially whether there is a constitutional convention that the House of Commons and Senate of Canada will not proceed alone. The thrust of the question is accordingly on whether or not there is a conventional requirement for provincial agreement, not on whether the agreement should be unanimous assuming that it is required. Furthermore, this manner of reading the question is more in keeping with the wording of Question B in the Quebec Reference which refers to something less than unanimity when it says: ... without the consent of the provinces and in spite of the objection of several of them ... If the questions are thought to be ambiguous, this Court should not, in a constitutional reference, be in a worse position than that of a witness in a trial and feel compelled simply to answer yes or no. Should it find that a question might be misleading, or should it simply wish to avoid the risk of misunderstanding, the Court is free either to interpret the question as in Re: Authority of Parliament in relation to the Upper House (the Senate Reference) [ [1980] 1 S.C.R. 54], at p. 59, or it may qualify both the question and the answer as in Reference re Waters and Water-Powers [ [1929] S.C.R. 200]. I--The nature of constitutional conventions A substantial part of the rules of the Canadian constitution are written. They are contained not in a single document called a constitution but in a great variety of statutes some of which have been enacted by the Parliament at Westminster, such as the British North America Act, 1867, 1867 (U.K.), c. 3, (the B.N.A. Act) or by the Parliament of Canada, such as The Alberta Act, 1905 (Can.), c. 3, The Saskatchewan Act, 1905 (Can.), c. 42, the Senate and House of Commons Act, R.S.C. 1970, c. S-8, or by the provincial legislatures, such as the provincial electoral acts. They are also to be found in orders in council like the Imperial Order in Council of May 16, 1871 admitting British Columbia into the Union, and the Imperial Order in Council of June 26, 1873, admitting Prince Edward Island into the Union. Another part of the Constitution of Canada consists of the rules of the common law. These are rules which the courts have developed over the centuries in the discharge of their judicial duties. An important portion of these rules concerns the prerogative of the Crown. Sections 9 and 15 of the B.N.A. Act provide:

49

9. The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen. 15. The Commander-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in Canada, is hereby declared to continue and be vested in the Queen.

But the Act does not otherwise say very much with respect to the elements of "Executive Government and Authority" and one must look at the common law to find out what they are, apart from authority delegated to the executive by statute. The common law provides that the authority of the Crown includes for instance the prerogative of mercy or clemency [[Reference as to the Effect of the Exercise of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269] and the power to incorporate by charter so as to confer a general capacity analogous to that of a natural person [Bonanza Creek Gold Mining Co. v. The King, [1916] 1 A.C. 566]. The royal prerogative puts the Crown in a preferred position as a creditor [Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437] or with respect to the inheritance of lands for defect of heirs [Attorney-General of Ontario v. Mercer (1883), 8 App. Cas. 767] or in relation to the ownership of precious metals [Attorney-General of British Columbia v. Attorney-General of Canada (1889), 14 App. Cas. 295] and bona vacantia [R. v. AttorneyGeneral of British Columbia, [1924] A.C. 213]. It is also under the prerogative and the common law that the Crown appoints and receives ambassadors, declares war, concludes treaties and it is in the name of the Queen that passports are issued. Those parts of the Constitution of Canada which are composed of statutory rules and common law rules are generically referred to as the law of the constitution. In cases of doubt or dispute, it is the function of the courts to declare what the law is and since the law is sometimes breached, it is generally the function of the courts to ascertain whether it has in fact been breached in specific instances and, if so, to apply such sanctions as are contemplated by the law, whether they be punitive sanctions or civil sanctions such as a declaration of nullity. Thus, when a federal or a provincial statute is found by the courts to be in excess of the legislative competence of the legislature which has enacted it, it is declared null and void and the courts refuse to give effect to it. In this sense it can be said that the law of the constitution is administered or enforced by the courts. But many Canadians would perhaps be surprised to learn that important parts of the constitution of Canada, with which they are the most familiar because they are directly involved when they exercise their right to vote at federal and provincial elections, are nowhere to be found in the law of the constitution. For instance it is a fundamental requirement of the constitution that if the opposition obtains the majority at the polls, the government must tender its resignation forthwith. But fundamental as it is, this requirement of the constitution does not form part of the law of the constitution.

50

It is also a constitutional requirement that the person who is appointed prime minister or premier by the Crown and who is the effective head of the government should have the support of the elected branch of the legislature; in practice this means in most cases the leader of the political party which has won a majority of seats at a general election. Other ministers are appointed by the Crown on the advice of the prime minister or premier when he forms or reshuffles his cabinet. Ministers must continuously have the confidence of the elected branch of the legislature, individually and collectively. Should they lose it, they must either resign or ask the Crown for a dissolution of the legislature and the holding of a general election. Most of the powers of the Crown under the prerogative are exercised only upon the advice of the prime minister of the cabinet which means that they are effectively exercised by the latter, together with the innumerable statutory powers delegated to the Crown in council. Yet none of these essential rules of the constitution can be said to be a law of the constitution. It was apparently Dicey who, in the first edition of his Law of the Constitution, in 1885, called them the "conventions of the constitution", (see W.S. Holdsworth, "The Conventions of the Eighteenth Century Constitution" (1932), 17 Iowa Law Rev. 161), an expression which quickly became current. What Dicey described under these terms are the principles and rules of responsible government, several of which are stated above and which regulate the relations between the Crown, the prime minister, the cabinet and the two Houses of Parliament. These rules developed in Great Britain by way of custom and precedent during the nineteenth century and were exported to such British colonies as were granted self-government. Dicey first gave the impression that constitutional conventions are a peculiarly British and modern phenomenon. But he recognized in later editions that different conventions are found in other constitutions. As Sir William Holdsworth wrote (supra, at p. 162): In fact conventions must grow up at all times and in all places where the powers of government are vested in different persons or bodies--where in other words there is a mixed constitution. "The constituent parts of a state," said Burke, [French Revolution, 28.] "are obliged to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with separate communities." Necessarily conventional rules spring up to regulate the working of the various parts of the constitution, their relations to one another, and to the subject. Within the British Empire, powers of government were vested in different bodies which provided a fertile ground for the growth of new constitutional conventions unknown to Dicey and from which selfgoverning colonies acquired equal and independent status within the Commonwealth. Many of these culminated in the Statute of Westminster, 1931, 1931 (U.K.), c. 4. A federal constitution provides for the distribution of powers between various legislatures and governments and may also constitute a fertile ground for the growth of constitutional conventions

51

between those legislatures and governments. It is conceivable for instance that usage and practice might give birth to conventions in Canada relating to the holding of federal-provincial conferences, the appointment of lieutenant governors, the reservation and disallowance of provincial legislation. It was to this possibility that Duff C.J. alluded when he referred to "constitutional usage or constitutional practice" in Reference re Disallowance and Reservation of Provincial Legislation [[1938] S.C.R. 71], at p. 78. He had previously called them "recognized constitutional conventions" in Wilson v. Esquimalt and Nanaimo Railway Co. [[1922] 1 A.C. 202], at p. 210. The main purpose of constitutional conventions is to ensure that the legal framework of the constitution will be operated in accordance with the prevailing constitutional values or principles of the period. For example, the constitutional value which is the pivot of the conventions stated above and relating to responsible government is the democratic principle: the powers of the state must be exercised in accordance with the wishes of the electorate; and the constitutional value or principle which anchors the conventions regulating the relationship between the members of the Commonwealth is the independence of the former British colonies. Being based on custom and precedent, constitutional conventions are usually unwritten rules. Some of them, however, may be reduced to writing and expressed in the proceedings and documents of imperial conferences, or in the preamble of statutes such as the Statute of Westminster, 1931, or in the proceedings and documents of federal-provincial conferences. They are often referred to and recognized in statements made by members of governments. The conventional rules of the constitution present one striking peculiarity. In contradistinction to the laws of the constitution, they are not enforced by the courts. One reason for this situation is that, unlike common law rules, conventions are not judge-made rules. They are not based on judicial precedents but on precedents established by the institutions of government themselves. Nor are they in the nature of statutory commands which it is the function and duty of the courts to obey and enforce. Furthermore, to enforce them would mean to administer some formal sanction when they are breached. But the legal system from which they are distinct does not contemplate formal sanctions for their breach. Perhaps the main reason why conventional rules cannot be enforced by the courts is that they are generally in conflict with the legal rules which they postulate and the courts are bound to enforce the legal rules. The conflict is not of a type which would entail the commission of any illegality. It results from the fact that legal rules create wide powers, discretions and rights which conventions prescribe should be exercised only in a certain limited manner, if at all. [....] This conflict between convention and law which prevents the courts from enforcing conventions also prevents conventions from crystallizing into laws, unless it be by statutory adoption.

52

It is because the sanctions of convention rest with institutions of government other than courts, such as the Governor General or the Lieutenant Governor, or the Houses of Parliament, or with public opinion and ultimately, with the electorate, that it is generally said that they are political. We respectfully adopt the definition of a convention given by the learned Chief Justice of Manitoba, Freedman C.J.M., in the Manitoba Reference, supra, at pp. 13-14: What is a constitutional convention? There is a fairly lengthy literature on the subject. Although there may be shades of difference among the constitutional lawyers, political scientists, and Judges who have contributed to that literature, the essential features of a convention may be set forth with some degree of confidence. Thus there is general agreement that a convention occupies a position somewhere in between a usage or custom on the one hand and a constitutional law on the other. There is general agreement that if one sought to fix that position with greater precision he would place convention nearer to law than to usage or custom. There is also general agreement that "a convention is a rule which is regarded as obligatory by the officials to whom it applies". Hogg, Constitutional Law of Canada (1977), p. 9. There is, if not general agreement, at least weighty authority, that the sanction for breach of a convention will be political rather than legal. It should be borne in mind however that, while they are not laws, some conventions may be more important than some laws. Their importance depends on that of the value or principle which they are meant to safeguard. Also they form an integral part of the constitution and of the constitutional system. They come within the meaning of the word "Constitution" in the preamble of the British North America Act, 1867: Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united ... with a Constitution similar in Principle to that of the United Kingdom: That is why it is perfectly appropriate to say that to violate a convention is to do something which is unconstitutional although it entails no direct legal consequence. But the words "constitutional" and "unconstitutional" may also be used in a strict legal sense, for instance with respect to a statute which is found ultra vires or unconstitutional. The foregoing may perhaps be summarized in an equation: constitutional conventions plus constitutional law equal the total constitution of the country. [....] III--Whether the convention exists It was submitted by counsel for Canada, Ontario and New Brunswick that there is no constitutional convention, that the House of Commons and Senate of Canada will not request Her Majesty the Queen

53

to lay before the Parliament at Westminster a measure to amend the Constitution of Canada affecting federal-provincial relationships, etc., without first obtaining the agreement of the provinces. It was submitted by counsel for Manitoba, Newfoundland, Quebec, Nova Scotia, British Columbia, Prince Edward Island and Alberta that the convention does exist, that it requires the agreement of all the provinces and that the second question in the Manitoba and Newfoundland References should accordingly be answered in the affirmative. Counsel for Saskatchewan agreed that the question be answered in the affirmative but on a different basis. He submitted that the convention does exist and requires a measure of provincial agreement. Counsel for Saskatchewan further submitted that the Resolution before the Court has not received a sufficient measure of provincial consent. We wish to indicate at the outset that we find ourselves in agreement with the submissions made on this issue by counsel for Saskatchewan. [....]

2.

Requirements for establishing a convention

The requirements for establishing a convention bear some resemblance with those which apply to customary law. Precedents and usage are necessary but do not suffice. They must be normative. We adopt the following passage of Sir W. Ivor Jennings, The Law and the Constitution (5th ed., 1959), at p. 136: We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by It. [....]

iii)

A reason for the rule

The reason for the rule is the federal principle. Canada is a federal union. The preamble of the B.N.A. Act states that ... the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united ... The federal character of the Canadian Constitution was recognized in innumerable judicial pronouncements. We will quote only one, that of Lord Watson in Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, supra, at pp. 441-42: 54

The object of the Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy. The federal principle cannot be reconciled with a state of affairs where the modification of provincial legislative powers could be obtained by the unilateral action of the federal authorities. It would indeed offend the federal principle that "a radical change to... [the] constitution [be] taken at the request of a bare majority of the members of the Canadian House of Commons and Senate" (Report of Dominion Provincial Conference, 1931, at p. 3). This is an essential requirement of the federal principle which was clearly recognized by the DominionProvincial Conference of 1931. This conference had been convened to consider the proposed Statute of Westminster as well as a draft of s. 7 which dealt exclusively with the Canadian position. At the opening of the conference, Prime Minister Bennett said: It should be noted that nothing in the Statute confers on the Parliament of Canada the power to alter the constitution. The position remained that nothing in the future could be done to amend the British North America Act except as the result of appropriate action taken in Canada and in London. In the past such appropriate action had been an address by both Houses of the Canadian Parliament to the Parliament at Westminster. It was recognized, however, that this might result in a radical change to our constitution taken at the request of a bare majority of the members of the Canadian House of Commons and Senate. The original draft of the Statute appeared, in the opinion of some provincial authorities, to sanction such a procedure, but in the draft before the conference this was clearly not the case. (Report of Dominion-Provincial Conference, 1931, at pp. 3-4.) This did not satisfy Premier Taschereau of Quebec who, the next day, said (at p. 12): Do we wish the British North America Act to be amended at the request of the Dominion only, without the consent of the Provinces? Do we wish it to be amended by the Parliament of Canada? Quebec could not accept either of these suggestions. She was not prepared to agree that the British North America Act might be amended without the consent of the Provinces. Mr. Geoffrion, of the Quebec delegation, suggested an amendment to s. 7(1) of the draft statute, in order to meet the difficulty. Prime Minister Bennett replied (at p. 13):

55

Our purpose is to leave things as they are and we are definitely trying not to do what Mr. Taschereau suggests may be done. The following day, the conference had before it another draft of s. 7 the first paragraph of which was the one which was ultimately adopted. Premier Taschereau was not yet reassured (at p. 18): Mr. Taschereau said that so far as the repeal of the Colonial Laws Validity Act was concerned he had no objection to make. Further, the new draft of Section 7 struck him favourably, but more time was necessary for its consideration. However, the Statute, both in its preamble and in Section 4 still, by implication, gave the Dominion the sole right to request an amendment of the British North America Act. It put in black and white what had been the practice of the past. Can we be assured, he asked, that the Government of the Dominion will make no request for an amendment of the British North America Act at Westminster without the consent of the Provinces? Prime Minister Bennett replied (at pp. 19-20): Mr. Bennett felt that Mr. Taschereau's fears concerning the amendment of the constitution by Dominion action alone were dealt with by Sub-section 1 of the new Section 7. Mr. Taschereau replied that he realised that the power in respect to amendment was not altered by the Statute, but that the practice in that connection had been put down in black and white, and that practice, which left out the Provinces, was not satisfactory. Mr. Bennett did not feel that the statute went so far. It was his opinion that in minor amendments such as a change in the quorum of the House of Commons there was no reason for consulting the Provinces, but that in more important amendments, such as the distribution of legislative power, the Provinces should, of course, be consulted. ... Previous amendments to the British North America Act had been non-controversial, but Mr. Taschereau could assure his colleagues that there would be no amendment to the constitution of Canada in its federal aspect without consulting the Provinces which, it must be remembered had the same powers within their domain that the Dominion has within hers. Several other premiers shared the concern of Premier Taschereau. It was to meet this concern that s. 7(1) of the Statute of Westminster, 1931 was re-drafted. What the re-drafting accomplished as a matter of law is an issue which arises under the third question of the Manitoba and Newfoundland References. But the fact that an attempt was made to do something about it as a matter of law carries all the more weight on the conventional plane.

56

It is true also that Prime Minister Bennett spoke of consultation of the provinces rather than of their consent but this must be understood in the light of his previously quoted statement expressing his reluctance to accept the unanimity principle. Furthermore, as was stated in the fourth general principle of the White Paper, the requirement of provincial consent did not emerge as early as other principles, but it has gained increasing recognition and acceptance since 1907 and particularly since 1930. This is clearly demonstrated by the proceedings of the Dominion-Provincial Conference of 1931. Then followed the positive precedents of 1940, 1951 and 1964 as well as the abortive ones of 1951, 1960 and 1964, all discussed above. By 1965, the rule had become recognized as a binding constitutional one formulated in the fourth general principle of the White Paper already quoted reading in part as follows: The fourth general principle is that the Canadian Parliament will not request an amendment directly affecting federal-provincial relationships without prior consultation and agreement with the provinces. The purpose of this conventional rule is to protect the federal character of the Canadian Constitution and prevent the anomaly that the House of Commons and Senate could obtain by simple resolutions what they could not validly accomplish by statute. It was contended by counsel for Canada, Ontario and New Brunswick that the proposed amendments would not offend the federal principle and that, if they became law, Canada would remain a federation. The federal principle would even be reinforced, it was said, since the provinces would as a matter of law be given an important role in the amending formula. It is true that Canada would remain a federation if the proposed amendments became law. But it would be a different federation made different at the instance of a majority in the Houses of the federal Parliament acting alone. It is this process itself which offends the federal principle. It was suggested by counsel for Saskatchewan that the proposed amendments were perhaps severable; that the proposed Charter of Rights offended the federal principle in that it would unilaterally alter legislative powers whereas the proposed amending formula did not offend the federal principle. To this suggestion we cannot accede. Counsel for Canada (as well as counsel for other parties and all interveners) took the firm position that the proposed amendment formed an unseverable package. Furthermore, and to repeat, whatever the result, the process offends the federal principle. It was to guard against this process that the constitutional convention came about. IV--Conclusion

57

We have reached the conclusion that the agreement of the provinces of Canada, no views being expressed as to its quantification, is constitutionally required for the passing of the "Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada" and that the passing of this Resolution without such agreement would be unconstitutional in the conventional sense. [....]

Reference re Secession of Quebec, 1998

[1998] 2 S.C.R. 217 Present: Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastrache and Binnie JJ. REFERENCE BY GOVERNOR IN COUNCIL The following is the judgment delivered by THE COURT:--

I.

Introduction

1 This Reference requires us to consider momentous questions that go to the heart of our system of constitutional government. The observation we made more than a decade ago in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 (Manitoba Language Rights Reference), at p. 728, applies with equal force here: as in that case, the present one "combines legal and constitutional questions of the utmost subtlety and complexity with political questions of great sensitivity". In our view, it is not possible to answer the questions that have been put to us without a consideration of a number of underlying principles. An exploration of the meaning and nature of these underlying principles is not merely of academic interest. On the contrary, such an exploration is of immense practical utility. Only once those underlying principles have been examined and delineated may a considered response to the questions we are required to answer emerge. 2 The questions posed by the Governor in Council by way of Order in Council P.C. 1996-1497, dated September 30, 1996, read as follows:

1.

Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National 58

2.

Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

3.

In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

3 Before turning to Question 1, as a preliminary matter, it is necessary to deal with the issues raised with regard to this Court's reference jurisdiction.

II.

The Preliminary Objections to the Court's Reference Jurisdiction

4 The amicus curiae argued that s. 101 of the Constitution Act, 1867 does not give Parliament the authority to grant this Court the jurisdiction provided for in s. 53 of the Supreme Court Act, R.S.C., 1985, c. S-26. Alternatively, it is submitted that even if Parliament were entitled to enact s. 53 of the Supreme Court Act, the scope of that section should be interpreted to exclude the kinds of questions the Governor in Council has submitted in this Reference. In particular, it is contended that this Court cannot answer Question 2, since it is a question of "pure" international law over which this Court has no jurisdiction. Finally, even if this Court's reference jurisdiction is constitutionally valid, and even if the questions are within the purview of s. 53 of the Supreme Court Act, it is argued that the three questions referred to the Court are speculative, of a political nature, and, in any event, are not ripe for judicial decision, and therefore are not justiciable. 5 Notwithstanding certain formal objections by the Attorney General of Canada, it is our view that the amicus curiae was within his rights to make the preliminary objections, and that we should deal with them.

A.

The Constitutional Validity of Section 53 of the Supreme Court Act

6 In Re References by Governor-General in Council (1910), 43 S.C.R. 536, affirmed on appeal to the Privy Council, [1912] A.C. 571 (sub nom. Attorney-General for Ontario v. Attorney-General for Canada), the constitutionality of this Court's special jurisdiction was twice upheld. The Court is asked to revisit these decisions. In light of the significant changes in the role of this Court since 1912, and the very important issues raised in this Reference, it is appropriate to reconsider briefly the constitutional validity of the Court's reference jurisdiction. 7 Section 3 of the Supreme Court Act establishes this Court both as a "general court of appeal" for Canada and as an "additional court for the better administration of the laws of Canada". These two roles reflect the two heads of power enumerated in s. 101 of the Constitution Act, 1867. However, the "laws of Canada" referred to in s. 101 consist only of federal law and statute: see Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, at pp. 1065-66. As a result, the phrase "additional courts" contained in s. 101 is an insufficient basis upon which to ground the special

59

jurisdiction established in s. 53 of the Supreme Court Act, which clearly exceeds a consideration of federal law alone (see, e.g., s. 53(2)). Section 53 must therefore be taken as enacted pursuant to Parliament's power to create a "general court of appeal" for Canada. 8 Section 53 of the Supreme Court Act is intra vires Parliament's power under s. 101 if, in "pith and substance", it is legislation in relation to the constitution or organization of a "general court of appeal". Section 53 is defined by two leading characteristics -- it establishes an original jurisdiction in this Court and imposes a duty on the Court to render advisory opinions. Section 53 is therefore constitutionally valid only if (1) a "general court of appeal" may properly exercise an original jurisdiction; and (2) a "general court of appeal" may properly undertake other legal functions, such as the rendering of advisory opinions.

(1)

May a Court of Appeal Exercise an Original Jurisdiction?

9 The words "general court of appeal" in s. 101 denote the status of the Court within the national court structure and should not be taken as a restrictive definition of the Court's functions. In most instances, this Court acts as the exclusive ultimate appellate court in the country, and, as such, is properly constituted as the "general court of appeal" for Canada. Moreover, it is clear that an appellate court can receive, on an exceptional basis, original jurisdiction not incompatible with its appellate jurisdiction. 10 The English Court of Appeal, the U.S. Supreme Court and certain courts of appeal in Canada exercise an original jurisdiction in addition to their appellate functions. See De Demko v. Home Secretary, [1959] A.C. 654 (H.L.), at p. 660; Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445 (Man. C.A.), at p. 453; United States Constitution, art. III, sec. 2. Although these courts are not constituted under a head of power similar to s. 101, they certainly provide examples which suggest that there is nothing inherently self-contradictory about an appellate court exercising original jurisdiction on an exceptional basis. 11 It is also argued that this Court's original jurisdiction is unconstitutional because it conflicts with the original jurisdiction of the provincial superior courts and usurps the normal appellate process. However, Parliament's power to establish a general court of appeal pursuant to s. 101 is plenary, and takes priority over the province's power to control the administration of justice in s. 92(14). See Attorney-General for Ontario v. Attorney-General for Canada, [1947] A.C. 127 (P.C.). Thus, even if it could be said that there is any conflict between this Court's reference jurisdiction and the original jurisdiction of the provincial superior courts, any such conflict must be resolved in favour of Parliament's exercise of its plenary power to establish a "general court of appeal" provided, as discussed below, advisory functions are not to be considered inconsistent with the functions of a general court of appeal.

(2)

May a Court of Appeal Undertake Advisory Functions?

60

12

The amicus curiae submits that [Translation] [e]ither this constitutional power [to give the highest court in the federation jurisdiction to give advisory opinions] is expressly provided for by the Constitution, as is the case in India (Constitution of India, art. 143), or it is not provided for therein and so it simply does not exist. This is what the Supreme Court of the United States has held. [Emphasis added.]

13 However, the U.S. Supreme Court did not conclude that it was unable to render advisory opinions because no such express power was included in the United States Constitution. Quite the contrary, it based this conclusion on the express limitation in art. III, sec. 2 restricting federal court jurisdiction to actual "cases" or "controversies". See, e.g., Muskrat v. United States, 219 U.S. 346 (1911), at p. 362. This section reflects the strict separation of powers in the American federal constitutional arrangement. Where the "case or controversy" limitation is missing from their respective state constitutions, some American state courts do undertake advisory functions (e.g., in at least two states - Alabama and Delaware -- advisory opinions are authorized, in certain circumstances, by statute: see Ala. Code 1975 sec. 12-2-10; Del. Code Ann. tit. 10, sec. 141 (1996 Supp.)). 14 In addition, the judicial systems in several European countries (such as Germany, France, Italy, Spain, Portugal and Belgium) include courts dedicated to the review of constitutional claims; these tribunals do not require a concrete dispute involving individual rights to examine the constitutionality of a new law -- an "abstract or objective question" is sufficient. See L. Favoreu, "American and European Models of Constitutional Justice", in D. S. Clark, ed., Comparative and Private International Law (1990), 105, at p. 113. The European Court of Justice, the European Court of Human Rights, and the Inter-American Court of Human Rights also all enjoy explicit grants of jurisdiction to render advisory opinions. See Treaty establishing the European Community, Art. 228(6); Protocol No. 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Europ. T.S. No. 5, p. 36; Statute of the Inter-American Court of Human Rights, Art. 2. There is no plausible basis on which to conclude that a court is, by its nature, inherently precluded from undertaking another legal function in tandem with its judicial duties. 15 Moreover, the Canadian Constitution does not insist on a strict separation of powers. Parliament and the provincial legislatures may properly confer other legal functions on the courts, and may confer certain judicial functions on bodies that are not courts. The exception to this rule relates only to s. 96 courts. Thus, even though the rendering of advisory opinions is quite clearly done outside the framework of adversarial litigation, and such opinions are traditionally obtained by the executive from the law officers of the Crown, there is no constitutional bar to this Court's receipt of jurisdiction to undertake such an advisory role. The legislative grant of reference jurisdiction found in s. 53 of the Supreme Court Act is therefore constitutionally valid.

B.

16

The Court's Jurisdiction Under Section 53

Section 53 provides in its relevant parts as follows: 61

53.

(1) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning (a) the interpretation of the Constitution Acts; ... (d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised. (2) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with the enumerations contained in subsection (1), with reference to which the Governor in Council sees fit to submit any such question. (3) Any question concerning any of the matters mentioned in subsections (1) and (2), and referred to the Court by the Governor in Council, shall be conclusively deemed to be an important question.

17 It is argued that even if Parliament were entitled to enact s. 53 of the Supreme Court Act, the questions submitted by the Governor in Council fall outside the scope of that section. 18 This submission cannot be accepted. Question 1 is directed, at least in part, to the interpretation of the Constitution Acts, which are referred to in s. 53(1)(a). Both Question 1 and Question 2 fall within s. 53(1)(d), since they relate to the powers of the legislature or government of a Canadian province. Finally, all three questions are clearly "important questions of law or fact concerning any matter" so that they must come within s. 53(2). 19 However, the amicus curiae has also raised some specific concerns regarding this Court's jurisdiction to answer Question 2. The question, on its face, falls within the scope of s. 53, but the concern is a more general one with respect to the jurisdiction of this Court, as a domestic tribunal, to answer what is described as a question of "pure" international law. 20 The first contention is that in answering Question 2, the Court would be exceeding its jurisdiction by purporting to act as an international tribunal. The simple answer to this submission is that this Court would not, in providing an advisory opinion in the context of a reference, be purporting to "act as" or substitute itself for an international tribunal. In accordance with well accepted principles of international law, this Court's answer to Question 2 would not purport to bind any other state or international tribunal that might subsequently consider a similar question. The Court nevertheless has jurisdiction to provide an advisory opinion to the Governor in Council in its capacity as a national court on legal questions touching and concerning the future of the Canadian federation.

62

21 Second, there is a concern that Question 2 is beyond the competence of this Court, as a domestic court, because it requires the Court to look at international law rather than domestic law. 22 This concern is groundless. In a number of previous cases, it has been necessary for this Court to look to international law to determine the rights or obligations of some actor within the Canadian legal system. For example, in Reference re Powers to Levy Rates on Foreign Legations and High Commissioners' Residences, [1943] S.C.R. 208, the Court was required to determine whether, taking into account the principles of international law with respect to diplomatic immunity, a municipal council had the power to levy rates on certain properties owned by foreign governments. In two subsequent references, this Court used international law to determine whether the federal government or a province possessed proprietary rights in certain portions of the territorial sea and continental shelf (Reference re Ownership of Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792; Reference re Newfoundland Continental Shelf, [1984] 1 S.C.R. 86). 23 More importantly, Question 2 of this Reference does not ask an abstract question of "pure" international law but seeks to determine the legal rights and obligations of the National Assembly, legislature or government of Quebec, institutions that clearly exist as part of the Canadian legal order. As will be seen, the amicus curiae himself submitted that the success of any initiative on the part of Quebec to secede from the Canadian federation would be governed by international law. In these circumstances, a consideration of international law in the context of this Reference about the legal aspects of the unilateral secession of Quebec is not only permissible but unavoidable.

C.

Justiciability

24 It is submitted that even if the Court has jurisdiction over the questions referred, the questions themselves are not justiciable. Three main arguments are raised in this regard:

(1) (2) (3)

the questions are not justiciable because they are too "theoretical" or speculative; the questions are not justiciable because they are political in nature; the questions are not yet ripe for judicial consideration.

25 In the context of a reference, the Court, rather than acting in its traditional adjudicative function, is acting in an advisory capacity. The very fact that the Court may be asked hypothetical questions in a reference, such as the constitutionality of proposed legislation, engages the Court in an exercise it would never entertain in the context of litigation. No matter how closely the procedure on a reference may mirror the litigation process, a reference does not engage the Court in a disposition of rights. For the same reason, the Court may deal on a reference with issues that might otherwise be considered not yet "ripe" for decision. 26 Though a reference differs from the Court's usual adjudicative function, the Court should not, even in the context of a reference, entertain questions that would be inappropriate to answer. 63

However, given the very different nature of a reference, the question of the appropriateness of answering a question should not focus on whether the dispute is formally adversarial or whether it disposes of cognizable rights. Rather, it should consider whether the dispute is appropriately addressed by a court of law. As we stated in Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 545: While there may be many reasons why a question is non-justiciable, in this appeal the Attorney General of Canada submitted that to answer the questions would draw the Court into a political controversy and involve it in the legislative process. In exercising its discretion whether to determine a matter that is alleged to be non-justiciable, the Court's primary concern is to retain its proper role within the constitutional framework of our democratic form of government. . . . In considering its appropriate role the Court must determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch. [Emphasis added.] Thus the circumstances in which the Court may decline to answer a reference question on the basis of "non-justiciability" include:

(i)

if to do so would take the Court beyond its own assessment of its proper role in the constitutional framework of our democratic form of government or if the Court could not give an answer that lies within its area of expertise: the interpretation of law.

(ii)

27 As to the "proper role" of the Court, it is important to underline, contrary to the submission of the amicus curiae, that the questions posed in this Reference do not ask the Court to usurp any democratic decision that the people of Quebec may be called upon to make. The questions posed by the Governor in Council, as we interpret them, are strictly limited to aspects of the legal framework in which that democratic decision is to be taken. The attempted analogy to the U.S. "political questions" doctrine therefore has no application. The legal framework having been clarified, it will be for the population of Quebec, acting through the political process, to decide whether or not to pursue secession. As will be seen, the legal framework involves the rights and obligations of Canadians who live outside the province of Quebec, as well as those who live within Quebec. 28 As to the "legal" nature of the questions posed, if the Court is of the opinion that it is being asked a question with a significant extralegal component, it may interpret the question so as to answer only its legal aspects; if this is not possible, the Court may decline to answer the question. In the present Reference the questions may clearly be interpreted as directed to legal issues, and, so interpreted, the Court is in a position to answer them.

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29 Finally, we turn to the proposition that even though the questions referred to us are justiciable in the "reference" sense, the Court must still determine whether it should exercise its discretion to refuse to answer the questions on a pragmatic basis. 30 Generally, the instances in which the Court has exercised its discretion to refuse to answer a reference question that is otherwise justiciable can be broadly divided into two categories. First, where the question is too imprecise or ambiguous to permit a complete or accurate answer: see, e.g., McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; Reference re Waters and Water-Powers, [1929] S.C.R. 200; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 (Provincial Judges Reference), at para. 256. Second, where the parties have not provided sufficient information to allow the Court to provide a complete or accurate answer: see, e.g., Reference re Education System in Island of Montreal, [1926] S.C.R. 246; Reference re Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54 (Senate Reference); Provincial Judges Reference, at para. 257. 31 There is no doubt that the questions posed in this Reference raise difficult issues and are susceptible to varying interpretations. However, rather than refusing to answer at all, the Court is guided by the approach advocated by the majority on the "conventions" issue in Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 (Patriation Reference), at pp. 875-76: If the questions are thought to be ambiguous, this Court should not, in a constitutional reference, be in a worse position than that of a witness in a trial and feel compelled simply to answer yes or no. Should it find that a question might be misleading, or should it simply avoid the risk of misunderstanding, the Court is free either to interpret the question . . . or it may qualify both the question and the answer. . . . The Reference questions raise issues of fundamental public importance. It cannot be said that the questions are too imprecise or ambiguous to permit a proper legal answer. Nor can it be said that the Court has been provided with insufficient information regarding the present context in which the questions arise. Thus, the Court is duty bound in the circumstances to provide its answers.

III.

Reference Questions

A.

Question 1 Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

(1)

Introduction

32 As we confirmed in Reference re Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793, at p. 806, "The Constitution Act, 1982 is now in force. Its legality is neither challenged nor assailable." The "Constitution of Canada" certainly includes the constitutional texts 65

enumerated in s. 52(2) of the Constitution Act, 1982. Although these texts have a primary place in determining constitutional rules, they are not exhaustive. The Constitution also "embraces unwritten, as well as written rules", as we recently observed in the Provincial Judges Reference, supra, at para. 92. Finally, as was said in the Patriation Reference, supra, at p. 874, the Constitution of Canada includes the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state. These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning. In our view, there are four fundamental and organizing principles of the Constitution which are relevant to addressing the question before us (although this enumeration is by no means exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities. The foundation and substance of these principles are addressed in the following paragraphs. We will then turn to their specific application to the first reference question before us.

(2)

Historical Context: The Significance of Confederation

33 In our constitutional tradition, legality and legitimacy are linked. The precise nature of this link will be discussed below. However, at this stage, we wish to emphasize only that our constitutional history demonstrates that our governing institutions have adapted and changed to reflect changing social and political values. This has generally been accomplished by methods that have ensured continuity, stability and legal order. 34 Because this Reference deals with questions fundamental to the nature of Canada, it should not be surprising that it is necessary to review the context in which the Canadian union has evolved. To this end, we will briefly describe the legal evolution of the Constitution and the foundational principles governing constitutional amendments. Our purpose is not to be exhaustive, but to highlight the features most relevant in the context of this Reference. 35 Confederation was an initiative of elected representatives of the people then living in the colonies scattered across part of what is now Canada. It was not initiated by Imperial fiat. In March 1864, a select committee of the Legislative Assembly of the Province of Canada, chaired by George Brown, began to explore prospects for constitutional reform. The committee's report, released in June 1864, recommended that a federal union encompassing Canada East and Canada West, and perhaps the other British North American colonies, be pursued. A group of Reformers from Canada West, led by Brown, joined with Étienne P. Taché and John A. Macdonald in a coalition government for the 66

purpose of engaging in constitutional reform along the lines of the federal model proposed by the committee's report. 36 An opening to pursue federal union soon arose. The leaders of the maritime colonies had planned to meet at Charlottetown in the fall to discuss the perennial topic of maritime union. The Province of Canada secured invitations to send a Canadian delegation. On September 1, 1864, 23 delegates (five from New Brunswick, five from Nova Scotia, five from Prince Edward Island, and eight from the Province of Canada) met in Charlottetown. After five days of discussion, the delegates reached agreement on a plan for federal union. 37 The salient aspects of the agreement may be briefly outlined. There was to be a federal union featuring a bicameral central legislature. Representation in the Lower House was to be based on population, whereas in the Upper House it was to be based on regional equality, the regions comprising Canada East, Canada West and the Maritimes. The significance of the adoption of a federal form of government cannot be exaggerated. Without it, neither the agreement of the delegates from Canada East nor that of the delegates from the maritime colonies could have been obtained. 38 Several matters remained to be resolved, and so the Charlottetown delegates agreed to meet again at Quebec in October, and to invite Newfoundland to send a delegation to join them. The Quebec Conference began on October 10, 1864. Thirty-three delegates (two from Newfoundland, seven from New Brunswick, five from Nova Scotia, seven from Prince Edward Island, and twelve from the Province of Canada) met over a two and a half week period. Precise consideration of each aspect of the federal structure preoccupied the political agenda. The delegates approved 72 resolutions, addressing almost all of what subsequently made its way into the final text of the Constitution Act, 1867. These included guarantees to protect French language and culture, both directly (by making French an official language in Quebec and Canada as a whole) and indirectly (by allocating jurisdiction over education and "Property and Civil Rights in the Province" to the provinces). The protection of minorities was thus reaffirmed. 39 Legally, there remained only the requirement to have the Quebec Resolutions put into proper form and passed by the Imperial Parliament in London. However, politically, it was thought that more was required. Indeed, Resolution 70 provided that "The Sanction of the Imperial and Local Parliaments shall be sought for the Union of the Provinces, on the principles adopted by the Conference." (Cited in J. Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (1895), at p. 52 (emphasis added).) 40 Confirmation of the Quebec Resolutions was achieved more smoothly in central Canada than in the Maritimes. In February and March 1865, the Quebec Resolutions were the subject of almost six weeks of sustained debate in both houses of the Canadian legislature. The Canadian Legislative Assembly approved the Quebec Resolutions in March 1865 with the support of a majority of members from both Canada East and Canada West. The governments of both Prince Edward Island and

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Newfoundland chose, in accordance with popular sentiment in both colonies, not to accede to the Quebec Resolutions. In New Brunswick, a general election was required before Premier Tilley's proConfederation party prevailed. In Nova Scotia, Premier Tupper ultimately obtained a resolution from the House of Assembly favouring Confederation. 41 Sixteen delegates (five from New Brunswick, five from Nova Scotia, and six from the Province of Canada) met in London in December 1866 to finalize the plan for Confederation. To this end, they agreed to some slight modifications and additions to the Quebec Resolutions. Minor changes were made to the distribution of powers, provision was made for the appointment of extra senators in the event of a deadlock between the House of Commons and the Senate, and certain religious minorities were given the right to appeal to the federal government where their denominational school rights were adversely affected by provincial legislation. The British North America Bill was drafted after the London Conference with the assistance of the Colonial Office, and was introduced into the House of Lords in February 1867. The Act passed third reading in the House of Commons on March 8, received royal assent on March 29, and was proclaimed on July 1, 1867. The Dominion of Canada thus became a reality. 42 There was an early attempt at secession. In the first Dominion election in September 1867, Premier Tupper's forces were decimated: members opposed to Confederation won 18 of Nova Scotia's 19 federal seats, and in the simultaneous provincial election, 36 of the 38 seats in the provincial legislature. Newly-elected Premier Joseph Howe led a delegation to the Imperial Parliament in London in an effort to undo the new constitutional arrangements, but it was too late. The Colonial Office rejected Premier Howe's plea to permit Nova Scotia to withdraw from Confederation. As the Colonial Secretary wrote in 1868: The neighbouring province of New Brunswick has entered into the union in reliance on having with it the sister province of Nova Scotia; and vast obligations, political and commercial, have already been contracted on the faith of a measure so long discussed and so solemnly adopted. . . . I trust that the Assembly and the people of Nova Scotia will not be surprised that the Queen's government feel that they would not be warranted in advising the reversal of a great measure of state, attended by so many extensive consequences already in operation. . . . (Quoted in H. Wade MacLauchlan, "Accounting for Democracy and the Rule of Law in the Quebec Secession Reference" (1997), 76 Can. Bar Rev. 155, at p. 168.) The interdependence characterized by "vast obligations, political and commercial", referred to by the Colonial Secretary in 1868, has, of course, multiplied immeasurably in the last 130 years. 43 Federalism was a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today. At Confederation, political leaders told their respective communities that the Canadian union would be able to reconcile diversity with unity. It is pertinent, in

68

the context of the present Reference, to mention the words of George-Étienne Cartier (cited in the Parliamentary Debates on the subject of the Confederation (1865), at p. 60): Now, when we [are] united together, if union [is] attained, we [shall] form a political nationality with which neither the national origin, nor the religion of any individual, [will] interfere. It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease. The idea of unity of races [is] utopian -- it [is] impossible. Distinctions of this kind [will] always exist. Dissimilarity, in fact, appear[s] to be the order of the physical world and of the moral world, as well as in the political world. But with regard to the objection based on this fact, to the effect that a great nation [can]not be formed because Lower Canada [is] in great part French and Catholic, and Upper Canada [is] British and Protestant, and the Lower Provinces [are] mixed, it [is] futile and worthless in the extreme. . . . In our own Federation we [will] have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success [will] increase the prosperity and glory of the new Confederacy. . . . [W]e [are] of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare. The federal-provincial division of powers was a legal recognition of the diversity that existed among the initial members of Confederation, and manifested a concern to accommodate that diversity within a single nation by granting significant powers to provincial governments. The Constitution Act, 1867 was an act of nation-building. It was the first step in the transition from colonies separately dependent on the Imperial Parliament for their governance to a unified and independent political state in which different peoples could resolve their disagreements and work together toward common goals and a common interest. Federalism was the political mechanism by which diversity could be reconciled with unity. 44 A federal-provincial division of powers necessitated a written constitution which circumscribed the powers of the new Dominion and Provinces of Canada. Despite its federal structure, the new Dominion was to have "a Constitution similar in Principle to that of the United Kingdom" (Constitution Act, 1867, preamble). Allowing for the obvious differences between the governance of Canada and the United Kingdom, it was nevertheless thought important to thus emphasize the continuity of constitutional principles, including democratic institutions and the rule of law; and the continuity of the exercise of sovereign power transferred from Westminster to the federal and provincial capitals of Canada. 45 After 1867, the Canadian federation continued to evolve both territorially and politically. New territories were admitted to the union and new provinces were formed. In 1870, Rupert's Land and the Northwest Territories were admitted and Manitoba was formed as a province. British Columbia was admitted in 1871, Prince Edward Island in 1873, and the Arctic Islands were added in 1880. In 1898, the Yukon Territory and in 1905, the provinces of Alberta and Saskatchewan were formed from the Northwest Territories. Newfoundland was admitted in 1949 by an amendment to the Constitution Act, 69

1867. The new territory of Nunavut was carved out of the Northwest Territories in 1993 with the partition to become effective in April 1999. 46 Canada's evolution from colony to fully independent state was gradual. The Imperial Parliament's passage of the Statute of Westminster, 1931 (U.K.), 22 & 23 Geo. 5, c. 4, confirmed in law what had earlier been confirmed in fact by the Balfour Declaration of 1926, namely, that Canada was an independent country. Thereafter, Canadian law alone governed in Canada, except where Canada expressly consented to the continued application of Imperial legislation. Canada's independence from Britain was achieved through legal and political evolution with an adherence to the rule of law and stability. The proclamation of the Constitution Act, 1982 removed the last vestige of British authority over the Canadian Constitution and re-affirmed Canada's commitment to the protection of its minority, aboriginal, equality, legal and language rights, and fundamental freedoms as set out in the Canadian Charter of Rights and Freedoms. 47 Legal continuity, which requires an orderly transfer of authority, necessitated that the 1982 amendments be made by the Westminster Parliament, but the legitimacy as distinguished from the formal legality of the amendments derived from political decisions taken in Canada within a legal framework which this Court, in the Patriation Reference, had ruled was in accordance with our Constitution. It should be noted, parenthetically, that the 1982 amendments did not alter the basic division of powers in ss. 91 and 92 of the Constitution Act, 1867, which is the primary textual expression of the principle of federalism in our Constitution, agreed upon at Confederation. It did, however, have the important effect that, despite the refusal of the government of Quebec to join in its adoption, Quebec has become bound to the terms of a Constitution that is different from that which prevailed previously, particularly as regards provisions governing its amendment, and the Canadian Charter of Rights and Freedoms. As to the latter, to the extent that the scope of legislative powers was thereafter to be constrained by the Charter, the constraint operated as much against federal legislative powers as against provincial legislative powers. Moreover, it is to be remembered that s. 33, the "notwithstanding clause", gives Parliament and the provincial legislatures authority to legislate on matters within their jurisdiction in derogation of the fundamental freedoms (s. 2), legal rights (ss. 7 to 14) and equality rights (s. 15) provisions of the Charter. 48 We think it apparent from even this brief historical review that the evolution of our constitutional arrangements has been characterized by adherence to the rule of law, respect for democratic institutions, the accommodation of minorities, insistence that governments adhere to constitutional conduct and a desire for continuity and stability. We now turn to a discussion of the general constitutional principles that bear on the present Reference. (3) Analysis of the Constitutional Principles (a) Nature of the Principles

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49 What are those underlying principles? Our Constitution is primarily a written one, the product of 131 years of evolution. Behind the written word is an historical lineage stretching back through the ages, which aids in the consideration of the underlying constitutional principles. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based. The following discussion addresses the four foundational constitutional principles that are most germane for resolution of this Reference: federalism, democracy, constitutionalism and the rule of law, and respect for minority rights. These defining principles function in symbiosis. No single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other. 50 Our Constitution has an internal architecture, or what the majority of this Court in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 57, called a "basic constitutional structure". The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole. As we recently emphasized in the Provincial Judges Reference, certain underlying principles infuse our Constitution and breathe life into it. Speaking of the rule of law principle in the Manitoba Language Rights Reference, supra, at p. 750, we held that "the principle is clearly implicit in the very nature of a Constitution". The same may be said of the other three constitutional principles we underscore today. 51 Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood. 52 The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our Constitution as a "living tree", to invoke the famous description in Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136. As this Court indicated in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government. 53 Given the existence of these underlying constitutional principles, what use may the Court make of them? In the Provincial Judges Reference, supra, at paras. 93 and 104, we cautioned that the recognition of these constitutional principles (the majority opinion referred to them as "organizing principles" and described one of them, judicial independence, as an "unwritten norm") could not be taken as an invitation to dispense with the written text of the Constitution. On the contrary, we confirmed that there are compelling reasons to insist upon the primacy of our written constitution. A written constitution promotes legal certainty and predictability, and it provides a foundation and a 71

touchstone for the exercise of constitutional judicial review. However, we also observed in the Provincial Judges Reference that the effect of the preamble to the Constitution Act, 1867 was to incorporate certain constitutional principles by reference, a point made earlier in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at pp. 462-63. In the Provincial Judges Reference, at para. 104, we determined that the preamble "invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text". 54 Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. "In other words", as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada". It is to a discussion of those underlying constitutional principles that we now turn.

(b)

Federalism

55 It is undisputed that Canada is a federal state. Yet many commentators have observed that, according to the precise terms of the Constitution Act, 1867, the federal system was only partial. See, e.g., K. C. Wheare, Federal Government (4th ed. 1963), at pp. 18-20. This was so because, on paper, the federal government retained sweeping powers which threatened to undermine the autonomy of the provinces. Here again, however, a review of the written provisions of the Constitution does not provide the entire picture. Our political and constitutional practice has adhered to an underlying principle of federalism, and has interpreted the written provisions of the Constitution in this light. For example, although the federal power of disallowance was included in the Constitution Act, 1867, the underlying principle of federalism triumphed early. Many constitutional scholars contend that the federal power of disallowance has been abandoned (e.g., P. W. Hogg, Constitutional Law of Canada (4th ed. 1997), at p. 120). 56 In a federal system of government such as ours, political power is shared by two orders of government: the federal government on the one hand, and the provinces on the other. Each is assigned respective spheres of jurisdiction by the Constitution Act, 1867. See, e.g., Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437 (P.C.), at pp. 441-42. It is up to the courts "to control the limits of the respective sovereignties": Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733, at p. 741. In interpreting our Constitution, the courts have always been concerned with the federalism principle, inherent in the structure of our constitutional arrangements, which has from the beginning been the lodestar by which the courts have been guided. 72

57 This underlying principle of federalism, then, has exercised a role of considerable importance in the interpretation of the written provisions of our Constitution. In the Patriation Reference, supra, at pp. 905-9, we confirmed that the principle of federalism runs through the political and legal systems of Canada. Indeed, Martland and Ritchie JJ., dissenting in the Patriation Reference, at p. 821, considered federalism to be "the dominant principle of Canadian constitutional law". With the enactment of the Charter, that proposition may have less force than it once did, but there can be little doubt that the principle of federalism remains a central organizational theme of our Constitution. Less obviously, perhaps, but certainly of equal importance, federalism is a political and legal response to underlying social and political realities. 58 The principle of federalism recognizes the diversity of the component parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction. The federal structure of our country also facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective having regard to this diversity. The scheme of the Constitution Act, 1867, it was said in Re the Initiative and Referendum Act, [1919] A.C. 935 (P.C.), at p. 942, was not to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head. More recently, in Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1047, the majority of this Court held that differences between provinces "are a rational part of the political reality in the federal process". It was referring to the differential application of federal law in individual provinces, but the point applies more generally. A unanimous Court expressed similar views in R. v. S. (S.), [1990] 2 S.C.R. 254, at pp. 287-88. 59 The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture. This is not merely the result of chance. The social and demographic reality of Quebec explains the existence of the province of Quebec as a political unit and indeed, was one of the essential reasons for establishing a federal structure for the Canadian union in 1867. The experience of both Canada East and Canada West under the Union Act, 1840 (U.K.), 3-4 Vict., c. 35, had not been satisfactory. The federal structure adopted at Confederation enabled French-speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself.

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60 Federalism was also welcomed by Nova Scotia and New Brunswick, both of which also affirmed their will to protect their individual cultures and their autonomy over local matters. All new provinces joining the federation sought to achieve similar objectives, which are no less vigorously pursued by the provinces and territories as we approach the new millennium.

(c)

Democracy

61 Democracy is a fundamental value in our constitutional law and political culture. While it has both an institutional and an individual aspect, the democratic principle was also argued before us in the sense of the supremacy of the sovereign will of a people, in this case potentially to be expressed by Quebecers in support of unilateral secession. It is useful to explore in a summary way these different aspects of the democratic principle. 62 The principle of democracy has always informed the design of our constitutional structure, and continues to act as an essential interpretive consideration to this day. A majority of this Court in OPSEU v. Ontario, supra, at p. 57, confirmed that "the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels". As is apparent from an earlier line of decisions emanating from this Court, including Switzman v. Elbling, [1957] S.C.R. 285, Saumur v. City of Quebec, [1953] 2 S.C.R. 299, Boucher v. The King, [1951] S.C.R. 265, and Reference re Alberta Statutes, [1938] S.C.R. 100, the democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is perhaps for this reason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself. To have done so might have appeared redundant, even silly, to the framers. As explained in the Provincial Judges Reference, supra, at para. 100, it is evident that our Constitution contemplates that Canada shall be a constitutional democracy. Yet this merely demonstrates the importance of underlying constitutional principles that are nowhere explicitly described in our constitutional texts. The representative and democratic nature of our political institutions was simply assumed. 63 Democracy is commonly understood as being a political system of majority rule. It is essential to be clear what this means. The evolution of our democratic tradition can be traced back to the Magna Carta (1215) and before, through the long struggle for Parliamentary supremacy which culminated in the English Bill of Rights of 1689, the emergence of representative political institutions in the colonial era, the development of responsible government in the 19th century, and eventually, the achievement of Confederation itself in 1867. "[T]he Canadian tradition", the majority of this Court held in Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158, at p. 186, is "one of evolutionary democracy moving in uneven steps toward the goal of universal suffrage and more effective representation". Since Confederation, efforts to extend the franchise to those unjustly excluded from participation in our political system - such as women, minorities, and aboriginal peoples - have continued, with some success, to the present day. 74

64 Democracy is not simply concerned with the process of government. On the contrary, as suggested in Switzman v. Elbling, supra, at p. 306, democracy is fundamentally connected to substantive goals, most importantly, the promotion of self-government. Democracy accommodates cultural and group identities: Reference re Provincial Electoral Boundaries, at p. 188. Put another way, a sovereign people exercises its right to self-government through the democratic process. In considering the scope and purpose of the Charter, the Court in R. v. Oakes, [1986] 1 S.C.R. 103, articulated some of the values inherent in the notion of democracy (at p. 136): The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. 65 In institutional terms, democracy means that each of the provincial legislatures and the federal Parliament is elected by popular franchise. These legislatures, we have said, are "at the core of the system of representative government": New Brunswick Broadcasting, supra, at p. 387. In individual terms, the right to vote in elections to the House of Commons and the provincial legislatures, and to be candidates in those elections, is guaranteed to "Every citizen of Canada" by virtue of s. 3 of the Charter. Historically, this Court has interpreted democracy to mean the process of representative and responsible government and the right of citizens to participate in the political process as voters (Reference re Provincial Electoral Boundaries, supra) and as candidates (Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876). In addition, the effect of s. 4 of the Charter is to oblige the House of Commons and the provincial legislatures to hold regular elections and to permit citizens to elect representatives to their political institutions. The democratic principle is affirmed with particular clarity in that s. 4 is not subject to the notwithstanding power contained in s. 33. 66 It is, of course, true that democracy expresses the sovereign will of the people. Yet this expression, too, must be taken in the context of the other institutional values we have identified as pertinent to this Reference. The relationship between democracy and federalism means, for example, that in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level. No one majority is more or less "legitimate" than the others as an expression of democratic opinion, although, of course, the consequences will vary with the subject matter. A federal system of government enables different provinces to pursue policies responsive to the particular concerns and interests of people in that province. At the same time, Canada as a whole is also a democratic community in which citizens construct and achieve goals on a national scale through a federal government acting within the limits of its jurisdiction. The function of federalism is to enable citizens to participate concurrently in different collectivities and to pursue goals at both a provincial and a federal level.

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67 The consent of the governed is a value that is basic to our understanding of a free and democratic society. Yet democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the "sovereign will" is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law's claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the "sovereign will" or majority rule alone, to the exclusion of other constitutional values. 68 Finally, we highlight that a functioning democracy requires a continuous process of discussion. The Constitution mandates government by democratic legislatures, and an executive accountable to them, "resting ultimately on public opinion reached by discussion and the interplay of ideas" (Saumur v. City of Quebec, supra, at p. 330). At both the federal and provincial level, by its very nature, the need to build majorities necessitates compromise, negotiation, and deliberation. No one has a monopoly on truth, and our system is predicated on the faith that in the marketplace of ideas, the best solutions to public problems will rise to the top. Inevitably, there will be dissenting voices. A democratic system of government is committed to considering those dissenting voices, and seeking to acknowledge and address those voices in the laws by which all in the community must live. 69 The Constitution Act, 1982 gives expression to this principle, by conferring a right to initiate constitutional change on each participant in Confederation. In our view, the existence of this right imposes a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change in other provinces. This duty is inherent in the democratic principle which is a fundamental predicate of our system of governance.

(d)

Constitutionalism and the Rule of Law

70 The principles of constitutionalism and the rule of law lie at the root of our system of government. The rule of law, as observed in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142, is "a fundamental postulate of our constitutional structure". As we noted in the Patriation Reference, supra, at pp. 805-6, "[t]he 'rule of law' is a highly textured expression, importing many things which are beyond the need of these reasons to explore but conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority". At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action. 76

71 In the Manitoba Language Rights Reference, supra, at pp. 747-52, this Court outlined the elements of the rule of law. We emphasized, first, that the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. Second, we explained, at p. 749, that "the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order". It was this second aspect of the rule of law that was primarily at issue in the Manitoba Language Rights Reference itself. A third aspect of the rule of law is, as recently confirmed in the Provincial Judges Reference, supra, at para. 10, that "the exercise of all public power must find its ultimate source in a legal rule". Put another way, the relationship between the state and the individual must be regulated by law. Taken together, these three considerations make up a principle of profound constitutional and political significance. 72 The constitutionalism principle bears considerable similarity to the rule of law, although they are not identical. The essence of constitutionalism in Canada is embodied in s. 52(1) of the Constitution Act, 1982, which provides that "[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all government action must comply with the law, including the Constitution. This Court has noted on several occasions that with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy. The Constitution binds all governments, both federal and provincial, including the executive branch (Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 455). They may not transgress its provisions: indeed, their sole claim to exercise lawful authority rests in the powers allocated to them under the Constitution, and can come from no other source. 73 An understanding of the scope and importance of the principles of the rule of law and constitutionalism is aided by acknowledging explicitly why a constitution is entrenched beyond the reach of simple majority rule. There are three overlapping reasons. 74 First, a constitution may provide an added safeguard for fundamental human rights and individual freedoms which might otherwise be susceptible to government interference. Although democratic government is generally solicitous of those rights, there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection. Second, a constitution may seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority. And third, a constitution may provide for a division of political power that allocates political power amongst different levels of government. That purpose would be defeated if

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one of those democratically elected levels of government could usurp the powers of the other simply by exercising its legislative power to allocate additional political power to itself unilaterally. 75 The argument that the Constitution may be legitimately circumvented by resort to a majority vote in a province-wide referendum is superficially persuasive, in large measure because it seems to appeal to some of the same principles that underlie the legitimacy of the Constitution itself, namely, democracy and self-government. In short, it is suggested that as the notion of popular sovereignty underlies the legitimacy of our existing constitutional arrangements, so the same popular sovereignty that originally led to the present Constitution must (it is argued) also permit "the people" in their exercise of popular sovereignty to secede by majority vote alone. However, closer analysis reveals that this argument is unsound, because it misunderstands the meaning of popular sovereignty and the essence of a constitutional democracy. 76 Canadians have never accepted that ours is a system of simple majority rule. Our principle of democracy, taken in conjunction with the other constitutional principles discussed here, is richer. Constitutional government is necessarily predicated on the idea that the political representatives of the people of a province have the capacity and the power to commit the province to be bound into the future by the constitutional rules being adopted. These rules are "binding" not in the sense of frustrating the will of a majority of a province, but as defining the majority which must be consulted in order to alter the fundamental balances of political power (including the spheres of autonomy guaranteed by the principle of federalism), individual rights, and minority rights in our society. Of course, those constitutional rules are themselves amenable to amendment, but only through a process of negotiation which ensures that there is an opportunity for the constitutionally defined rights of all the parties to be respected and reconciled. 77 In this way, our belief in democracy may be harmonized with our belief in constitutionalism. Constitutional amendment often requires some form of substantial consensus precisely because the content of the underlying principles of our Constitution demand it. By requiring broad support in the form of an "enhanced majority" to achieve constitutional change, the Constitution ensures that minority interests must be addressed before proposed changes which would affect them may be enacted. 78 It might be objected, then, that constitutionalism is therefore incompatible with democratic government. This would be an erroneous view. Constitutionalism facilitates - indeed, makes possible a democratic political system by creating an orderly framework within which people may make political decisions. Viewed correctly, constitutionalism and the rule of law are not in conflict with democracy; rather, they are essential to it. Without that relationship, the political will upon which democratic decisions are taken would itself be undermined.

(e)

Protection of Minorities

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79 The fourth underlying constitutional principle we address here concerns the protection of minorities. There are a number of specific constitutional provisions protecting minority language, religion and education rights. Some of those provisions are, as we have recognized on a number of occasions, the product of historical compromises. As this Court observed in Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1173, and in Reference re Education Act (Que.), [1993] 2 S.C.R. 511, at pp. 529-30, the protection of minority religious education rights was a central consideration in the negotiations leading to Confederation. In the absence of such protection, it was felt that the minorities in what was then Canada East and Canada West would be submerged and assimilated. See also Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377, at pp. 401-2, and Adler v. Ontario, [1996] 3 S.C.R. 609. Similar concerns animated the provisions protecting minority language rights, as noted in Société des Acadiens du NouveauBrunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, at p. 564. 80 However, we highlight that even though those provisions were the product of negotiation and political compromise, that does not render them unprincipled. Rather, such a concern reflects a broader principle related to the protection of minority rights. Undoubtedly, the three other constitutional principles inform the scope and operation of the specific provisions that protect the rights of minorities. We emphasize that the protection of minority rights is itself an independent principle underlying our constitutional order. The principle is clearly reflected in the Charter's provisions for the protection of minority rights. See, e.g., Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, and Mahe v. Alberta, [1990] 1 S.C.R. 342. 81 The concern of our courts and governments to protect minorities has been prominent in recent years, particularly following the enactment of the Charter. Undoubtedly, one of the key considerations motivating the enactment of the Charter, and the process of constitutional judicial review that it entails, is the protection of minorities. However, it should not be forgotten that the protection of minority rights had a long history before the enactment of the Charter. Indeed, the protection of minority rights was clearly an essential consideration in the design of our constitutional structure even at the time of Confederation: Senate Reference, supra, at p. 71. Although Canada's record of upholding the rights of minorities is not a spotless one, that goal is one towards which Canadians have been striving since Confederation, and the process has not been without successes. The principle of protecting minority rights continues to exercise influence in the operation and interpretation of our Constitution. 82 Consistent with this long tradition of respect for minorities, which is at least as old as Canada itself, the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing aboriginal and treaty rights, and in s. 25, a non-derogation clause in favour of the rights of aboriginal peoples. The "promise" of s. 35, as it was termed in R. v. Sparrow, [1990] 1 S.C.R. 1075, at p. 1083, recognized not only the ancient occupation of land by aboriginal peoples, but their contribution to the building of Canada, and the special commitments made to them by successive governments. The

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protection of these rights, so recently and arduously achieved, whether looked at in their own right or as part of the larger concern with minorities, reflects an important underlying constitutional value.

(4)

The Operation of the Constitutional Principles in the Secession Context

83 Secession is the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane. In a federal state, secession typically takes the form of a territorial unit seeking to withdraw from the federation. Secession is a legal act as much as a political one. By the terms of Question 1 of this Reference, we are asked to rule on the legality of unilateral secession "[u]nder the Constitution of Canada". This is an appropriate question, as the legality of unilateral secession must be evaluated, at least in the first instance, from the perspective of the domestic legal order of the state from which the unit seeks to withdraw. As we shall see below, it is also argued that international law is a relevant standard by which the legality of a purported act of secession may be measured. 84 The secession of a province from Canada must be considered, in legal terms, to require an amendment to the Constitution, which perforce requires negotiation. The amendments necessary to achieve a secession could be radical and extensive. Some commentators have suggested that secession could be a change of such a magnitude that it could not be considered to be merely an amendment to the Constitution. We are not persuaded by this contention. It is of course true that the Constitution is silent as to the ability of a province to secede from Confederation but, although the Constitution neither expressly authorizes nor prohibits secession, an act of secession would purport to alter the governance of Canadian territory in a manner which undoubtedly is inconsistent with our current constitutional arrangements. The fact that those changes would be profound, or that they would purport to have a significance with respect to international law, does not negate their nature as amendments to the Constitution of Canada. 85 The Constitution is the expression of the sovereignty of the people of Canada. It lies within the power of the people of Canada, acting through their various governments duly elected and recognized under the Constitution, to effect whatever constitutional arrangements are desired within Canadian territory, including, should it be so desired, the secession of Quebec from Canada. As this Court held in the Manitoba Language Rights Reference, supra, at p. 745, "[t]he Constitution of a country is a statement of the will of the people to be governed in accordance with certain principles held as fundamental and certain prescriptions restrictive of the powers of the legislature and government". The manner in which such a political will could be formed and mobilized is a somewhat speculative exercise, though we are asked to assume the existence of such a political will for the purpose of answering the question before us. By the terms of this Reference, we have been asked to consider whether it would be constitutional in such a circumstance for the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally.

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86 The "unilateral" nature of the act is of cardinal importance and we must be clear as to what is understood by this term. In one sense, any step towards a constitutional amendment initiated by a single actor on the constitutional stage is "unilateral". We do not believe that this is the meaning contemplated by Question 1, nor is this the sense in which the term has been used in argument before us. Rather, what is claimed by a right to secede "unilaterally" is the right to effectuate secession without prior negotiations with the other provinces and the federal government. At issue is not the legality of the first step but the legality of the final act of purported unilateral secession. The supposed juridical basis for such an act is said to be a clear expression of democratic will in a referendum in the province of Quebec. This claim requires us to examine the possible juridical impact, if any, of such a referendum on the functioning of our Constitution, and on the claimed legality of a unilateral act of secession. 87 Although the Constitution does not itself address the use of a referendum procedure, and the results of a referendum have no direct role or legal effect in our constitutional scheme, a referendum undoubtedly may provide a democratic method of ascertaining the views of the electorate on important political questions on a particular occasion. The democratic principle identified above would demand that considerable weight be given to a clear expression by the people of Quebec of their will to secede from Canada, even though a referendum, in itself and without more, has no direct legal effect, and could not in itself bring about unilateral secession. Our political institutions are premised on the democratic principle, and so an expression of the democratic will of the people of a province carries weight, in that it would confer legitimacy on the efforts of the government of Quebec to initiate the Constitution's amendment process in order to secede by constitutional means. In this context, we refer to a "clear" majority as a qualitative evaluation. The referendum result, if it is to be taken as an expression of the democratic will, must be free of ambiguity both in terms of the question asked and in terms of the support it achieves. 88 The federalism principle, in conjunction with the democratic principle, dictates that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. The amendment of the Constitution begins with a political process undertaken pursuant to the Constitution itself. In Canada, the initiative for constitutional amendment is the responsibility of democratically elected representatives of the participants in Confederation. Those representatives may, of course, take their cue from a referendum, but in legal terms, constitution-making in Canada, as in many countries, is undertaken by the democratically elected representatives of the people. The corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table. The clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that

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expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles already discussed. 89 What is the content of this obligation to negotiate? At this juncture, we confront the difficult inter-relationship between substantive obligations flowing from the Constitution and questions of judicial competence and restraint in supervising or enforcing those obligations. This is mirrored by the distinction between the legality and the legitimacy of actions taken under the Constitution. We propose to focus first on the substantive obligations flowing from this obligation to negotiate; once the nature of those obligations has been described, it is easier to assess the appropriate means of enforcement of those obligations, and to comment on the distinction between legality and legitimacy. 90 The conduct of the parties in such negotiations would be governed by the same constitutional principles which give rise to the duty to negotiate: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities. Those principles lead us to reject two absolutist propositions. One of those propositions is that there would be a legal obligation on the other provinces and federal government to accede to the secession of a province, subject only to negotiation of the logistical details of secession. This proposition is attributed either to the supposed implications of the democratic principle of the Constitution, or to the international law principle of self-determination of peoples. 91 For both theoretical and practical reasons, we cannot accept this view. We hold that Quebec could not purport to invoke a right of self-determination such as to dictate the terms of a proposed secession to the other parties: that would not be a negotiation at all. As well, it would be naive to expect that the substantive goal of secession could readily be distinguished from the practical details of secession. The devil would be in the details. The democracy principle, as we have emphasized, cannot be invoked to trump the principles of federalism and rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. No negotiations could be effective if their ultimate outcome, secession, is cast as an absolute legal entitlement based upon an obligation to give effect to that act of secession in the Constitution. Such a foregone conclusion would actually undermine the obligation to negotiate and render it hollow. 92 However, we are equally unable to accept the reverse proposition, that a clear expression of selfdetermination by the people of Quebec would impose no obligations upon the other provinces or the federal government. The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec. Such a proposition fails to give sufficient weight to the underlying constitutional principles that must inform the amendment process, including the principles of democracy and federalism. The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, 82

Quebec respects the rights of others. Negotiations would be necessary to address the interests of the federal government, of Quebec and the other provinces, and other participants, as well as the rights of all Canadians both within and outside Quebec. 93 Is the rejection of both of these propositions reconcilable? Yes, once it is realized that none of the rights or principles under discussion is absolute to the exclusion of the others. This observation suggests that other parties cannot exercise their rights in such a way as to amount to an absolute denial of Quebec's rights, and similarly, that so long as Quebec exercises its rights while respecting the rights of others, it may propose secession and seek to achieve it through negotiation. The negotiation process precipitated by a decision of a clear majority of the population of Quebec on a clear question to pursue secession would require the reconciliation of various rights and obligations by the representatives of two legitimate majorities, namely, the clear majority of the population of Quebec, and the clear majority of Canada as a whole, whatever that may be. There can be no suggestion that either of these majorities "trumps" the other. A political majority that does not act in accordance with the underlying constitutional principles we have identified puts at risk the legitimacy of the exercise of its rights. 94 In such circumstances, the conduct of the parties assumes primary constitutional significance. The negotiation process must be conducted with an eye to the constitutional principles we have outlined, which must inform the actions of all the participants in the negotiation process. 95 Refusal of a party to conduct negotiations in a manner consistent with constitutional principles and values would seriously put at risk the legitimacy of that party's assertion of its rights, and perhaps the negotiation process as a whole. Those who quite legitimately insist upon the importance of upholding the rule of law cannot at the same time be oblivious to the need to act in conformity with constitutional principles and values, and so do their part to contribute to the maintenance and promotion of an environment in which the rule of law may flourish. 96 No one can predict the course that such negotiations might take. The possibility that they might not lead to an agreement amongst the parties must be recognized. Negotiations following a referendum vote in favour of seeking secession would inevitably address a wide range of issues, many of great import. After 131 years of Confederation, there exists, inevitably, a high level of integration in economic, political and social institutions across Canada. The vision of those who brought about Confederation was to create a unified country, not a loose alliance of autonomous provinces. Accordingly, while there are regional economic interests, which sometimes coincide with provincial boundaries, there are also national interests and enterprises (both public and private) that would face potential dismemberment. There is a national economy and a national debt. Arguments were raised before us regarding boundary issues. There are linguistic and cultural minorities, including aboriginal peoples, unevenly distributed across the country who look to the Constitution of Canada for the protection of their rights. Of course, secession would give rise to many issues of great complexity and difficulty. These would have to be resolved within the overall framework of the rule of law, thereby 83

assuring Canadians resident in Quebec and elsewhere a measure of stability in what would likely be a period of considerable upheaval and uncertainty. Nobody seriously suggests that our national existence, seamless in so many aspects, could be effortlessly separated along what are now the provincial boundaries of Quebec. As the Attorney General of Saskatchewan put it in his oral submission: A nation is built when the communities that comprise it make commitments to it, when they forego choices and opportunities on behalf of a nation, . . . when the communities that comprise it make compromises, when they offer each other guarantees, when they make transfers and perhaps most pointedly, when they receive from others the benefits of national solidarity. The threads of a thousand acts of accommodation are the fabric of a nation. . . . 97 In the circumstances, negotiations following such a referendum would undoubtedly be difficult. While the negotiators would have to contemplate the possibility of secession, there would be no absolute legal entitlement to it and no assumption that an agreement reconciling all relevant rights and obligations would actually be reached. It is foreseeable that even negotiations carried out in conformity with the underlying constitutional principles could reach an impasse. We need not speculate here as to what would then transpire. Under the Constitution, secession requires that an amendment be negotiated. 98 The respective roles of the courts and political actors in discharging the constitutional obligations we have identified follows ineluctably from the foregoing observations. In the Patriation Reference, a distinction was drawn between the law of the Constitution, which, generally speaking, will be enforced by the courts, and other constitutional rules, such as the conventions of the Constitution, which carry only political sanctions. It is also the case, however, that judicial intervention, even in relation to the law of the Constitution, is subject to the Court's appreciation of its proper role in the constitutional scheme. 99 The notion of justiciability is, as we earlier pointed out in dealing with the preliminary objection, linked to the notion of appropriate judicial restraint. We earlier made reference to the discussion of justiciability in Reference re Canada Assistance Plan, supra, at p. 545: In exercising its discretion whether to determine a matter that is alleged to be non-justiciable, the Court's primary concern is to retain its proper role within the constitutional framework of our democratic form of government. In Operation Dismantle, supra, at p. 459, it was pointed out that justiciability is a "doctrine . . . founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes". An analogous doctrine of judicial restraint operates here. Also, as observed in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49 (the Auditor General's case), at p. 91:

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There is an array of issues which calls for the exercise of judicial judgment on whether the questions are properly cognizable by the courts. Ultimately, such judgment depends on the appreciation by the judiciary of its own position in the constitutional scheme. 100 The role of the Court in this Reference is limited to the identification of the relevant aspects of the Constitution in their broadest sense. We have interpreted the questions as relating to the constitutional framework within which political decisions may ultimately be made. Within that framework, the workings of the political process are complex and can only be resolved by means of political judgments and evaluations. The Court has no supervisory role over the political aspects of constitutional negotiations. Equally, the initial impetus for negotiation, namely a clear majority on a clear question in favour of secession, is subject only to political evaluation, and properly so. A right and a corresponding duty to negotiate secession cannot be built on an alleged expression of democratic will if the expression of democratic will is itself fraught with ambiguities. Only the political actors would have the information and expertise to make the appropriate judgment as to the point at which, and the circumstances in which, those ambiguities are resolved one way or the other. 101 If the circumstances giving rise to the duty to negotiate were to arise, the distinction between the strong defence of legitimate interests and the taking of positions which, in fact, ignore the legitimate interests of others is one that also defies legal analysis. The Court would not have access to all of the information available to the political actors, and the methods appropriate for the search for truth in a court of law are ill-suited to getting to the bottom of constitutional negotiations. To the extent that the questions are political in nature, it is not the role of the judiciary to interpose its own views on the different negotiating positions of the parties, even were it invited to do so. Rather, it is the obligation of the elected representatives to give concrete form to the discharge of their constitutional obligations which only they and their electors can ultimately assess. The reconciliation of the various legitimate constitutional interests outlined above is necessarily committed to the political rather than the judicial realm, precisely because that reconciliation can only be achieved through the give and take of the negotiation process. Having established the legal framework, it would be for the democratically elected leadership of the various participants to resolve their differences. 102 The non-justiciability of political issues that lack a legal component does not deprive the surrounding constitutional framework of its binding status, nor does this mean that constitutional obligations could be breached without incurring serious legal repercussions. Where there are legal rights there are remedies, but as we explained in the Auditor General's case, supra, at p. 90, and New Brunswick Broadcasting, supra, the appropriate recourse in some circumstances lies through the workings of the political process rather than the courts. 103 To the extent that a breach of the constitutional duty to negotiate in accordance with the principles described above undermines the legitimacy of a party's actions, it may have important ramifications at the international level. Thus, a failure of the duty to undertake negotiations and pursue them according to constitutional principles may undermine that government's claim to 85

legitimacy which is generally a precondition for recognition by the international community. Conversely, violations of those principles by the federal or other provincial governments responding to the request for secession may undermine their legitimacy. Thus, a Quebec that had negotiated in conformity with constitutional principles and values in the face of unreasonable intransigence on the part of other participants at the federal or provincial level would be more likely to be recognized than a Quebec which did not itself act according to constitutional principles in the negotiation process. Both the legality of the acts of the parties to the negotiation process under Canadian law, and the perceived legitimacy of such action, would be important considerations in the recognition process. In this way, the adherence of the parties to the obligation to negotiate would be evaluated in an indirect manner on the international plane. 104 Accordingly, the secession of Quebec from Canada cannot be accomplished by the National Assembly, the legislature or government of Quebec unilaterally, that is to say, without principled negotiations, and be considered a lawful act. Any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else violate the Canadian legal order. However, the continued existence and operation of the Canadian constitutional order cannot remain unaffected by the unambiguous expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The primary means by which that expression is given effect is the constitutional duty to negotiate in accordance with the constitutional principles that we have described herein. In the event secession negotiations are initiated, our Constitution, no less than our history, would call on the participants to work to reconcile the rights, obligations and legitimate aspirations of all Canadians within a framework that emphasizes constitutional responsibilities as much as it does constitutional rights. 105 It will be noted that Question 1 does not ask how secession could be achieved in a constitutional manner, but addresses one form of secession only, namely unilateral secession. Although the applicability of various procedures to achieve lawful secession was raised in argument, each option would require us to assume the existence of facts that at this stage are unknown. In accordance with the usual rule of prudence in constitutional cases, we refrain from pronouncing on the applicability of any particular constitutional procedure to effect secession unless and until sufficiently clear facts exist to squarely raise an issue for judicial determination.

(5)

Suggested Principle of Effectivity

106 In the foregoing discussion we have not overlooked the principle of effectivity, which was placed at the forefront in argument before us. For the reasons that follow, we do not think that the principle of effectivity has any application to the issues raised by Question 1. A distinction must be drawn between the right of a people to act, and their power to do so. They are not identical. A right is recognized in law: mere physical ability is not necessarily given status as a right. The fact that an individual or group can act in a certain way says nothing at all about the legal status or consequences of the act. A power may be exercised even in the absence of a right to do so, but if it is, then it is 86

exercised without legal foundation. Our Constitution does not address powers in this sense. On the contrary, the Constitution is concerned only with the rights and obligations of individuals, groups and governments, and the structure of our institutions. It was suggested before us that the National Assembly, legislature or government of Quebec could unilaterally effect the secession of that province from Canada, but it was not suggested that they might do so as a matter of law: rather, it was contended that they simply could do so as a matter of fact. Although under the Constitution there is no right to pursue secession unilaterally, that is secession without principled negotiation, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on effective control of a territory and recognition by the international community. The principles governing secession at international law are discussed in our answer to Question 2. 107 In our view, the alleged principle of effectivity has no constitutional or legal status in the sense that it does not provide an ex ante explanation or justification for an act. In essence, acceptance of a principle of effectivity would be tantamount to accepting that the National Assembly, legislature or government of Quebec may act without regard to the law, simply because it asserts the power to do so. So viewed, the suggestion is that the National Assembly, legislature or government of Quebec could purport to secede the province unilaterally from Canada in disregard of Canadian and international law. It is further suggested that if the secession bid was successful, a new legal order would be created in that province, which would then be considered an independent state. 108 Such a proposition is an assertion of fact, not a statement of law. It may or may not be true; in any event it is irrelevant to the questions of law before us. If, on the other hand, it is put forward as an assertion of law, then it simply amounts to the contention that the law may be broken as long as it can be broken successfully. Such a notion is contrary to the rule of law, and must be rejected.

B.

Question 2 Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

[This portion of the judgment has been omitted. In brief, the Court held that international law does not provide the province of Quebec, under its present circumstances, with a legal right to unilateral secession. The people of Quebec, however that term is defined, do not constitute a colonized or oppressed people in a manner that brings them within the scope of the principle of "selfdetermination" as it is recognized in international law. Nor does the possibility of a successful de facto unilateral declaration of secession, in which such a declaration would be accompanied by international recognition of Quebec as a sovereign state, render the declaration itself lawful. Rather, the 87

international law principle of "effectiveness" simply renders lawful the practical consequences of an illegal act, as in the case of a successful revolution.]

C.

Question 3 In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

147 In view of our answers to Questions 1 and 2, there is no conflict between domestic and international law to be addressed in the context of this Reference.

IV.

Summary of Conclusions

148 As stated at the outset, this Reference has required us to consider momentous questions that go to the heart of our system of constitutional government. We have emphasized that the Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles that animate the whole of our Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Those principles must inform our overall appreciation of the constitutional rights and obligations that would come into play in the event a clear majority of Quebecers votes on a clear question in favour of secession. 149 The Reference requires us to consider whether Quebec has a right to unilateral secession. Those who support the existence of such a right found their case primarily on the principle of democracy. Democracy, however, means more than simple majority rule. As reflected in our constitutional jurisprudence, democracy exists in the larger context of other constitutional values such as those already mentioned. In the 131 years since Confederation, the people of the provinces and territories have created close ties of interdependence (economically, socially, politically and culturally) based on shared values that include federalism, democracy, constitutionalism and the rule of law, and respect for minorities. A democratic decision of Quebecers in favour of secession would put those relationships at risk. The Constitution vouchsafes order and stability, and accordingly secession of a province "under the Constitution" could not be achieved unilaterally, that is, without principled negotiation with other participants in Confederation within the existing constitutional framework. 150 The Constitution is not a straitjacket. Even a brief review of our constitutional history demonstrates periods of momentous and dramatic change. Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to 88

change the constitutional order. While it is true that some attempts at constitutional amendment in recent years have faltered, a clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize. 151 Quebec could not, despite a clear referendum result, purport to invoke a right of selfdetermination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Democratic rights under the Constitution cannot be divorced from constitutional obligations. Nor, however, can the reverse proposition be accepted. The continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue. Negotiations would need to address the interests of the other provinces, the federal government, Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities. No one suggests that it would be an easy set of negotiations. 152 The negotiation process would require the reconciliation of various rights and obligations by negotiation between two legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole. A political majority at either level that does not act in accordance with the underlying constitutional principles we have mentioned puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community. 153 The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the Constitution", not to usurp the prerogatives of the political forces that operate within that framework. The obligations we have identified are binding obligations under the Constitution of Canada. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.

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154 We have also considered whether a positive legal entitlement to secession exists under international law in the factual circumstances contemplated by Question 1, i.e., a clear democratic expression of support on a clear question for Quebec secession. Some of those who supported an affirmative answer to this question did so on the basis of the recognized right to self-determination that belongs to all "peoples". Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the "people" issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises under the principle of self-determination of peoples at international law where "a people" is governed as part of a colonial empire; where "a people" is subject to alien subjugation, domination or exploitation; and possibly where "a people" is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve selfdetermination within the framework of their existing state. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the National Assembly, the legislature or the government of Quebec do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally. 155 Although there is no right, under the Constitution or at international law, to unilateral secession, that is secession without negotiation on the basis just discussed, this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition. Such recognition, even if granted, would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law. 156 The reference questions are answered accordingly.

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Chapter 2: Separation of Powers and the Rule of Law

In common law legal systems and under the Constitution Act 1867, government is said to be divided into three branches with distinct functions. The legislative, executive and judicial branches are said, respectively, to make, to enforce and to apply the law. However, even a cursory examination of the operation of government reveals that the functions are not performed exclusively by the branch of government to which each is said to belong. The same examination will show that the government is comprised of a multiplicity of institutions. Nevertheless, there are enforceable legal principles which impose limits on the extent to which the functions of government may be reallocated and these principles are enforced by the judicial branch. Some were mentioned in the extract from Reference re Secession of Quebec in Chapter 1. The cases in this chapter are selected to give you a glimpse of the nature and operation of the separation of powers and the rule of law. The seventeenth century 'cases' included mark the beginnings of the development of the principles, a development which is still continuing.

Question of Prohibitions, 1607

[1607] EWHC KB J23 77 ER 1342, 12 Co.Rep. 64 PROHIBITIONS DEL ROY The King in his own person cannot adjudge any case, either criminal or betwixt party and party; but it ought to be determined and adjudged in some Court of Justice, according to the law and custom of England. The King may sit in the King's Bench, but the Court gives the judgment. No King after the conquest assumed to himself to give any judgment in any cause whatsoever which concerned the administration of justice, within the realm; but these causes were solely determined in the Courts of Justice. The King cannot arrest any man. Note, upon Sunday the 10th of November in this same term, the King, upon complaint made to him by Bancroft, Archbishop of Canterbury, concerning prohibitions, the King was informed, that when the question was made of what matters the Ecclesiastical Judges have cognizance, either upon the exposition of the statutes concerning tithes, or any other thing ecclesiastical, or upon the statute 1 El. Concerning the high commission or in any other case in which there is not express authority in law, the King himself may decide it in his Royal person; and that the Judges are but the delegates of the King, 91

and that the King may take what causes he shall please to determine, form the determination of the Judges, and may determine them himself. And the Archbishop said, that this was clear in divinity, that such authority belongs to the King by the word of God in the Scripture. To which it was answered by me, in the presence, and with the clear consent of all the Judges of England, and Barons of the Exchequer, that the King in his own person cannot adjudge any case, either criminal, as treason, felon, etc. or betwixt party and party, an adjudged in some Court of Justice, according to the law and custom of England; and always judgments are given, ideo consideratum est per Curiam, so that the Court gives the judgment; and the King hath his Court, viz. in the Upper House of Parliament, in which he with his Lords is the supreme Judge over all other Judges; for if error be in the Common Pleas, that may be reversed in the King's Bench; and if the Court of King's Bench err, that may be reversed in the Upper House of Parliament, by the King, with the assent of the Lords Spiritual and Temporal, without the Commons: and in this respect the King is called the Chief Justice, 20 H. 7. 7 a. by Brudnell: and it appears in our books, that the King may sit in the Star-Chamber; but this was to consult with the justices, upon certain questions proposed to them, and not in judicio: so in the King's Bench he may sit, but the Court gives the judgment: and it is commonly said in our books, that the King is always present in Court in the judgment of law; and upon this he cannot be nonsuit: but the judgments are always given per Curiam; and the Judges are sworn to execute justice according to law and the custom of England. And it appears by the Act of Parliament of 2 Ed. 3. cap. 9. 2 Ed. 3. cap. 1. that neither by the Great Seal, nor by the Little Seal, justice shall be delayed; ergo, the King cannot take any cause out of any of his Courts, and give judgment upon it himself, but in his own cause he may stay it, as it doth appear 11 H. 4. 8. And the Judges informed the King, that no King after the Conquest assumed to himself to give any judgment in any cause whatsoever, which concerned the administration of justice within this realm, but these were solely determined in the Courts of Justice: and the King cannot arrest any man, as the book is in 1 H. 7. 4. for the party cannot have remedy against the King; so if the King give any judgment, what remedy can the party have. Vide 39 Ed. 3. 14. one who had a judgment reversed before the Council of State; it was held utterly void for that it was not a place where judgment may be reversed. Vide 1 H. 7. 4. Hussey Chief Justice, who was attorney to Ed. 4. reports that Sir John Markham, Chief Justice, said to King Ed. 4. that the King cannot arrest a man for suspicion of treason or felony, as others of his lieges may; for that if it be a wrong to the party grieved, he can have no remedy: and it was greatly marvelled that the archbishop durst inform the King, that such absolute power and authority, as is aforesaid, belong to the King by the word of God. Vide 4 H. 4. cap. 22. which being translated into Latin, the effect is, judicia in Curia Regis reddita non annihilentur, sed stet judicium in suo robore quousque perjudicium Curiae Regis tanquam erroneum, etc. vide West. 2 cap. 5. Vide le stat. De Marlbridge, cap. 1. Provisum est, concordatum, et concessum, quod tam majores quam minores justitiam habeant et recipient in Curia domini Regis, et vide le stat. de Magna Charta, cap. 29. 25 Ed. 3 cap. 5. None may be taken by petition or suggestion made to our lord the King or his Council, unless by judgment: and 43 Edw. 3. cap. 3. no man shall be put to answer without presentment before the justices, matter of record, or by due process, or by writ original, according to the ancient law of the land: and if any thing be done against it, it shall be void in law and held for error.

92

Vide 28 Edw. 3. c. 3. 37 Edw. 3. cap. 18. Vide 17 R. 2. ex rotulis Parliamenti in Turri, art. 10. A controversy of land between parties was heard by the King, and sentence given, which was repealed for this, that it did not belong to the common law: then the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges: to which it was answered by me, that true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege [That the King ought not to be under any man but under God and the law.].

Question of Royal Proclamation, 1610

[1610] EWHC KB J22 77 ER 1352, (1611) 12 Co Rep 74 CASE OF PROCLAMATIONS Memorandum, that upon Thursday, 20 Sept. 8 Regis Jacobi, I was sent to attend the Lord Chancellor, Lord Treasurer, Lord Privy Seal, and the Chancellor of the Duchy; there being present the attorney, the solicitor, and recorder: and two questions were moved to me by the Lord Treasurer; the one if the King by his proclamation may prohibit new buildings in and about London, etc; the other, if the King hath answered, that he will confer with his Privy Council, and his Judges, and then he will do right to them. To which I answered, that these questions were of great importance. 2. That they concerned the answer of the King to the body, viz. to the Commons of the House of Parliament. 3. That I did not hear of these questions until this morning at nine of the clock: for the grievances were preferred, and the answer made when I was in my circuit. And lastly, both the proclamations, which now were shewed, were promulgated, anno 5 Jac. After my time of attorneyship: and for these reasons I did humbly desire them that I might have conference with my brethren the Judges about the answer of the King, and then to make an advised answer according to law and reason. To which the Lord Chancellor said, that every precedent had first a commencement, and that he would advise the Judges to maintain the power and prerogative of the King; and in cases in which there is no authority and precedent, to leave it to the King to order in it, according to his wisdom, and for the good of his subjects, or otherwise the King would be no more than the Duke of Venice: and that the King was so much restrained in his prerogative, that it was to be feared the bonds would be broken: but to apply his medicine according to the quality of the disease: and all concluded that it should be necessary at that time to confirm the 93

King's prerogative with our opinions, although that there were not any former precedent or authority in law: for every precedent ought to have a commencement. To which I answered, that true it is that every precedent hath a commencement; but when authority and precedent is wanting, there is need of great consideration, before that any thing of novelty shall be established, and to provide that this be not against the law of the land: for I said, that the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament. But at this time I only desired to have a time of consideration and conference with my brothers, for deliberandum est diu, quod statuendum est semel; to which the solicitor said, that divers sentences were given in the Star-Chamber upon the proclamation against building; and that I myself had given sentence in divers cases for the said proclamation: to which I answered, that precedents were to be seen, and consideration to be had of this upon conference with my brethren, for that melius est recurrere, quam male currere; and that indictments conclude, contra leges et statuta; but I never heard an indictment to conclude, contra regiam proclamationem. At last my motion was allowed; and the Lords appointed the two Chief Justices, Chief Baron, and Baron Altham, to have consideration of it. Note, the King by his proclamation of other ways cannot change any part of the common law, or statute law, or the customs of the realm, 11 Hen. 4. 37. Fortescue De Laudibus Angliae Legum, cap. 9.18 Edw. 5. 35, 36, etc. 31 Hen. 8. cap. 8. hic infra: also the King cannot create any offence by his prohibition or proclamation, which was not an offence before, for that was to change the law, and to make an offence which was not; for ubi non est lex, ibi non est transgression: ergo, that which cannot be punished without proclamation, cannot be punished with it. Vide le stat. 31 Hen. 8. cap. 8. which Act gives more power to the King than he had before, and yet there it is declared that proclamations shall not alter the law, statutes, or customs of the realm, or impeach any in his inheritance, goods, body, life, etc. But if a man shall be indicted for a contempt against a proclamation, he shall be fined and imprisoned, and so impeached in his body and goods. Vide Fortescue, cap. 9. 18. 34. 36, 37 etc. But a thing which is punishable by the law, by fine, and imprisonment, if the King prohibit it by his proclamation, before that he will punish it, and so warn his subjects of the peril of it, there if he permit it after, this as a circumstance aggravates the offence; but he by proclamation cannot make a thing unlawful, which was permitted by the law before: and this was well proved by the ancient and continual forms of indictments; for all indictments conclude contra legem et consuetudinem Angliai, or contra leges et statute, etc. But never was seen any indictment to conclude contra regiam proclamationem. So in all cases the King out of his province, and to prevent dangers, which it will be too late to prevent afterwards, he may prohibit them before, which will aggravate the offence if it be afterwards committed: and as it is a grand prerogative of the King to make proclamation, (for no subject can make it without authority from the Kint, or lawful custom,) upon pain of fine and imprisonment, as it is held in the 22 Hen. 8. Proclamation B. But we do find divers precedents of proclamations which are utterly 94

against law and reason, and for that void; for qua contra rationem juris introducta sunt non debent trahi in consequentiam. An Act was made, by which foreigners were licensed to merchandize within London; Hen. 4. by proclamation prohibited the execution of it; and that it should be in suspence usque ad proximum Parliament which was against law. Vide dors. Claus. 8 Hen. 4. Proclamation in London. But 9 Hen. 4. an Act of Parliament was made, that all the Irish people should depart the realm, and go into Ireland before the Feast of the Nativity of the Blessed Lady, upon pain of death, which was absolutely in terrorem, and was utterly against the law. Hollinshed 722. anno Domini 1546. 37. Hen. 8. the whore-houses, called the stews, were suppressed by proclamation and sound of trumpet, etc. In the same term it was resolved by the two Chief Justices, Chief Baron, and Baron Altham, upon conference bewixt the Lords of the Privy Council and them, that the King by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land by his proclamation in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment; also the law of England is divided into three parts, common law, statute law, and custom; but the King's proclamation is none of them: also malum aut est malum in se, aut prohibitum, that which is against common law is malum in se, malum prohibitum is such an offence as is prohibited by Act of Parliament, and not by proclamation. Also it was resolved, that the King hath no prerogative, but that which the law of the land allows him. But the King for prevention of offences may by proclamation admonish his subjects that they keep the laws, and do not offend them; upon punishment to be inflicted by the law, etc. Lastly, if the offence be not punishable in the Star-Chamber, the prohibition of it by proclamation cannot make it punishable there: and after this resolution, no proclamation imposing fine and imprisonment was afterwards made, etc.

Attorney General Canada v. Attorney General Ontario (Labour Conventions), 1937

[1937] A.C. 326 (P.C.) APPEAL (No. 100 of 1936), by special leave, from a judgment of the Supreme Court of Canada (June 17, 1936) answering questions referred to the Court by Order of the Governor-General in Council, dated November 5, 1935. The questions referred asked whether the Weekly Rest in Industrial Undertakings Act, 1935, the Minimum Wages Act, 1935, and the Limitation of Hours of Work Act, 1935, or any of the provisions thereof and in what particular or particulars or to what extent, were ultra vires of the Parliament of Canada. The Statutes in question, which dealt with the matters denoted by their titles, 95

were passed by the Dominion Parliament in accordance with conventions adopted by the International Labour Organization of the League of Nations in accordance with the Labour Part of the Treaty of Versailles of June 28, 1919. The conventions had been ratified by the Dominion. [....] The judgment of their Lordships was delivered by 1 LORD ATKIN:-- This is one of a series of cases brought before this Board on appeal from the Supreme Court of Canada on references by the Governor-General in Council to determine the validity of certain statutes of Canada passed in 1934 and 1935. Their Lordships will deal with all the appeals in due course, but they propose to begin with that involving The Weekly Rest in Industrial Undertakings Act, The Minimum Wages Act and The Limitation of Hours of Work Act, both because of the exceptional importance of the issues involved and because it affords them an opportunity of stating their opinion upon some matters which also arise in the other cases. At the outset they desire to express their appreciation of the valuable assistance which they have received from counsel, both for the Dominion and for the respective Provinces. No pains have been spared to place before the Board all the material both as to the facts and the law which could assist the Board in their responsible task. The arguments were cogent and not diffuse. The statutes in question in the present case were passed, as their titles recite, in accordance with conventions adopted by the International Labour Organization of the League of Nations in accordance with the Labour Part of the Treaty of Versailles of June 28, 1919. It was admitted at the bar that each statute affects property and civil rights within each Province; and that it was for the Dominion to establish that nevertheless the statute was validly enacted under the legislative powers given to the Dominion Parliament by the British North America Act, 1867. It was argued for the Dominion that the legislation could be justified either (1.) under s. 132 of the British North America Act as being legislation "necessary or proper for performing the obligations of Canada, or of any Province thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries," or (2.) under the general powers, sometimes called the residuary powers, given by s. 91 to the Dominion Parliament to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces. 2 The Provinces contended:

1.

As to (1.) - (a) That the obligations, if any, of Canada under the labour conventions did not arise under a treaty or treaties made between the Empire and foreign countries: and that therefore s. 132 did not apply. (b) That the Canadian Government had no executive authority to make any such treaty as was alleged. (c) That the obligations said to have been incurred, and the legislative powers sought to be exercised, by the Dominion were not incurred and exercised in accordance with the terms of the Treaty of Versailles.

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2.

As to (2.), that if the Dominion had to rely only upon the powers given by s. 91, the legislation was invalid, for it related to matters which came within the classes of subjects exclusively assigned to the Legislatures of the Provinces - namely, property and civil rights in the Province. [....]

8 Their Lordships, having stated the circumstances leading up to the reference in this case, are now in a position to discuss the contentions of the parties which were summarized earlier in this judgment. It will be essential to keep in mind the distinction between (1.) the formation, and (2.) the performance, of the obligations constituted by a treaty, using that word as comprising any agreement between two or more sovereign States. Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. To make themselves as secure as possible they will often in such cases before final ratification seek to obtain from Parliament an expression of approval. But it has never been suggested, and it is not the law, that such an expression of approval operates as law, or that in law it precludes the assenting Parliament, or any subsequent Parliament, from refusing to give its sanction to any legislative proposals that may subsequently be brought before it. Parliament, no doubt, as the Chief Justice points out, has a constitutional control over the executive: but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the executive alone. Once they are created, while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default. In a unitary State whose Legislature possesses unlimited powers the problem is simple. Parliament will either fulfil or not treaty obligations imposed upon the State by its executive. The nature of the obligations does not affect the complete authority of the Legislature to make them law if it so chooses. But in a State where the Legislature does not possess absolute authority, in a federal State where legislative authority is limited by a constitutional document, or is divided up between different Legislatures in accordance with the classes of subject-matter submitted for legislation, the problem is complex. The obligations imposed by treaty may have to be performed, if at all, by several Legislatures; and the executive have the task of obtaining the legislative assent not of the one Parliament to whom they may be responsible, but possibly of several Parliaments to whom they stand in no direct relation. The question is not how is the obligation formed, that is the function of the executive; but how is the obligation to be performed, and that depends upon the authority of the competent Legislature or Legislatures. 9 Reverting again to the original analysis of the contentions of the parties, it will be seen that the Provincial contention 1.(b) relates only to the formation of the treaty obligation, while 1.(c) has 97

reference to the alleged limitation of both executive and legislative action by the express terms of the treaty. If, however, the Dominion Parliament was never vested with legislative authority to perform the obligation these questions do not arise. And, as their Lordships have come to the conclusion that the reference can be decided upon the question of legislative competence alone, in accordance with their usual practice in constitutional matters they refrain from expressing any opinion upon the questions raised by the contentions 1.(b) and (c), which in that event become immaterial. Counsel did not suggest any doubt as to the international status which Canada had now attained, involving her competence to enter into international treaties as an international juristic person. Questions were raised both generally as to how the executive power was to be exercised to bind Canada, whether it must be exercised in the name of the King, and whether the prerogative right of making treaties in respect of Canada was now vested in the Governor-General in Council, or his Ministers, whether by constitutional usage or otherwise, and specifically in relation to the draft conventions as to the interpretation of the various paragraphs in art. 405 of the Treaty of Versailles, and as to the effect of the time limits expressed both in art. 405 and in the conventions themselves. Their Lordships mention these points for the purpose of making it clear that they express no opinion upon them. 10 The first ground upon which counsel for the Dominion sought to base the validity of the legislation was s. 132. So far as it is sought to apply this section to the conventions when ratified the answer is plain. The obligations are not obligations of Canada as part of the British Empire, but of Canada, by virtue of her new status as an international person, and do not arise under a treaty between the British Empire and foreign countries. This was clearly established by the decision in the Radio case, [1932] A.C. 304, and their Lordships do not think that the proposition admits of any doubt. It is unnecessary, therefore, to dwell upon the distinction between legislative powers given to the Dominion to perform obligations imposed upon Canada as part of the Empire by an Imperial executive responsible to and controlled by the Imperial Parliament, and the legislative power of the Dominion to perform obligations created by the Dominion executive responsible to and controlled by the Dominion Parliament. While it is true, as was pointed out in the Radio case, [1932] A.C. 304, that it was not contemplated in 1867 that the Dominion would possess treaty-making powers, it is impossible to strain the section so as to cover the uncontemplated event. A further attempt to apply the section was made by the suggestion that while it does not apply to the conventions, yet it clearly applies to the Treaty of Versailles itself, and the obligations to perform the conventions arise "under" that treaty because of the stipulations in Part XIII. It is impossible to accept this view. No obligation to legislate in respect of any of the matters in question arose until the Canadian executive, left with an unfettered discretion, of their own volition acceded to the conventions, a novus actus not determined by the treaty. For the purposes of this legislation the obligation arose under the conventions alone. It appears that all the members of the Supreme Court rejected the contention based on s. 132, and their Lordships are in full agreement with them. 11 If, therefore, s. 132 is out of the way, the validity of the legislation can only depend upon ss. 91 and 92. Now it had to be admitted that normally this legislation came within the classes of subjects by 98

s. 92 assigned exclusively to the Legislatures of the Provinces, namely - property and civil rights in the Province. This was in fact expressly decided in respect of these same conventions by the Supreme Court in 1925. How, then, can the legislation be within the legislative powers given by s. 91 to the Dominion Parliament? It is not within the enumerated classes of subjects in s. 91: and it appears to be expressly excluded from the general powers given by the first words of the section. It appears highly probable that none of the members of the Supreme Court would have departed from their decision in 1925 had it not been for the opinion of the Chief Justice that the judgments of the Judicial Committee in the Aeronautics case, [1932] A.C. 54, concerned legislation to perform obligations and the Radio case, [1932] A.C. 304, constrained them to hold that jurisdiction to legislate for the purpose of performing the obligation of a treaty resides exclusively in the Parliament of Canada. Their Lordships cannot take this view of those decisions. The Aeronautics case imposed by a treaty between the Empire and foreign countries. Sect. 132, therefore, clearly applied, and but for a remark at the end of the judgment, which in view of the stated ground of the decision was clearly obiter, the case could not be said to be an authority on the matter now under discussion. The judgment in the Radio case, [1932] A.C. 304, appears to present more difficulty. But when that case is examined it will be found that the true ground of the decision was that the convention in that case dealt with classes of matters which did not fall within the enumerated classes of subjects in s. 92, or even within the enumerated classes in s. 91. Part of the subject-matter of the convention, namely - broadcasting, might come under an enumerated class, but if so it was under a heading "Inter-provincial Telegraphs," expressly excluded from s. 92. Their Lordships are satisfied that neither case affords a warrant for holding that legislation to perform a Canadian treaty is exclusively within the Dominion legislative power. 12 For the purposes of ss. 91 and 92, i.e., the distribution of legislative powers between the Dominion and the Provinces, there is no such thing as treaty legislation as such. The distribution is based on classes of subjects; and as a treaty deals with a particular class of subjects so will the legislative power of performing it be ascertained. No one can doubt that this distribution is one of the most essential conditions, probably the most essential condition, in the inter-provincial compact to which the British North America Act gives effect. If the position of Lower Canada, now Quebec, alone were considered, the existence of her separate jurisprudence as to both property and civil rights might be said to depend upon loyal adherence to her constitutional right to the exclusive competence of her own Legislature in these matters. Nor is it of less importance for the other Provinces, though their law may be based on English jurisprudence, to preserve their own right to legislate for themselves in respect of local conditions which may vary by as great a distance as separate the Atlantic from the Pacific. It would be remarkable that while the Dominion could not initiate legislation, however desirable, which affected civil rights in the Provinces, yet its Government not responsible to the Provinces nor controlled by Provincial Parliaments need only agree with a foreign country to enact such legislation, and its Parliament would be forthwith clothed with authority to affect Provincial rights to the full extent of such agreement. Such a result would appear to undermine the constitutional safeguards of Provincial constitutional autonomy.

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13 It follows from what has been said that no further legislative competence is obtained by the Dominion from its accession to international status, and the consequent increase in the scope of its executive functions. It is true, as pointed out in the judgment of the Chief Justice, that as the executive is now clothed with the powers of making treaties so the Parliament of Canada, to which the executive is responsible, has imposed upon it responsibilities in connection with such treaties, for if it were to disapprove of them they would either not be made or the Ministers would meet their constitutional fate. But this is true of all executive functions in their relation to Parliament. There is no existing constitutional ground for stretching the competence of the Dominion Parliament so that it becomes enlarged to keep pace with enlarged functions of the Dominion executive. If the new functions affect the classes of subjects enumerated in s. 92 legislation to support the new functions is in the competence of the Provincial Legislatures only. If they do not, the competence of the Dominion Legislature is declared by s. 91 and existed ab origine. In other words, the Dominion cannot, merely by making promises to foreign countries, clothe itself with legislative authority inconsistent with the constitution which gave it birth. 14 But the validity of the legislation under the general words of s. 91 was sought to be established not in relation to the treaty-making power alone, but also as being concerned with matters of such general importance as to have attained "such dimensions as to affect the body politic," and to have "ceased to be merely local or provincial," and to have "become matter of national concern." It is interesting to notice how often the words used by Lord Watson in Attorney General for Ontario v. Attorney General for the Dominion, [1896] A.C. 348, have unsuccessfully been used in attempts to support encroachments on the Provincial legislative powers given by s. 92. They laid down no principle of constitutional law, and were cautious words intended to safeguard possible eventualities which no one at the time had any interest or desire to define. The law of Canada on this branch of constitutional law has been stated with such force and clarity by the Chief Justice in his judgment in the reference concerning the Natural Products Marketing Act, [1936] Can. S.C.R. 398, at 414 et seq, dealing with the six Acts there referred to, that their Lordships abstain from stating it afresh. The Chief Justice, naturally from his point of view, excepted legislation to fulfil treaties. On this their Lordships have expressed their opinion. But subject to this, they agree with and adopt what was there said. They consider that the law is finally settled by the current of cases cited by the Chief Justice on the principles declared by him. It is only necessary to call attention to the phrases in the various cases, "abnormal circumstances," "exceptional conditions," "standard of necessity" (Board of Commerce case, [1922] 1 A.C. 191), "some extraordinary peril to the national life of Canada," "highly exceptional," "epidemic of pestilence" (Snider's case, [1925] A.C. 396), to show how far the present case is from the conditions which may override the normal distribution of powers in ss. 91 and 92. The few pages of the Chief Justice's judgment will, it is to be hoped, form the locus classicus of the law on this point, and preclude further disputes. 15 It must not be thought that the result of this decision is that Canada is incompetent to legislate in performance of treaty obligations. In totality of legislative powers, Dominion and Provincial together, 100

she is fully equipped. But the legislative powers remain distributed, and if in the exercise of her new functions derived from her new international status Canada incurs obligations they must, so far as legislation be concerned, when they deal with Provincial classes of subjects, be dealt with by the totality of powers, in other words by co-operation between the Dominion and the Provinces. While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure. The Supreme Court was equally divided and therefore the formal judgment could only state the opinions of the three judges on either side. Their Lordships are of opinion that the answer to the three questions should be that the Act in each case is ultra vires of the Parliament of Canada, and they will humbly advise His Majesty accordingly.

Roncarelli v. Duplessis, 1959

[1959] S.C.R. 121 Present: Kerwin C.J. and Taschereau, Rand, Locke, Cartwright, Fauteux, Abbott, Martland and Judson JJ. The judgement of Rand and Judson JJ. was delivered by RAND J.:-- The material facts from which my conclusion is drawn are these. The appellant was the proprietor of a restaurant in a busy section of Montreal which in 1946 through its transmission to him from his father had been continuously licensed for the sale of liquor for approximately 34 years; he is of good education and repute and the restaurant was of a superior class. On December 4 of that year, while his application for annual renewal was before the Liquor Commission, the existing license was cancelled and his application for renewal rejected, to which was added a declaration by the respondent that no future license would ever issue to him. These primary facts took place in the following circumstances. For some years the appellant had been an adherent of a rather militant Christian religious sect known as the Witnesses of Jehovah. Their ideology condemns the established church institutions and stresses the absolute and exclusive personal relation of the individual to the Deity without human intermediation or intervention. The first impact of their proselytizing zeal upon the Roman Catholic church and community in Quebec, as might be expected, produced a violent reaction. Meetings were forcibly broken up, property damaged, individuals ordered out of communities, in one case out of the province, and generally, within the cities and towns, bitter controversy aroused. The work of the Witnesses was carried on both by word of mouth and by the distribution of printed matter, the latter including two periodicals known as "The Watch Tower" and "Awake", sold at a small price.

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In 1945 the provincial authorities began to take steps to bring an end to what was considered insulting and offensive to the religious beliefs and feelings of the Roman Catholic population. Large scale arrests were made of young men and women, by whom the publications mentioned were being held out for sale, under local by-laws requiring a licence for peddling any kind of wares. Altogether almost one thousand of such charges were laid. The penalty involved in Montreal, where most of the arrests took place, was a fine of $40, and as the Witnesses disputed liability, bail was in all cases resorted to. The appellant, being a person of some means, was accepted by the Recorder's Court as bail without question, and up to November 12, 1946, he had gone security in about 380 cases, some of the accused being involved in repeated offences. Up to this time there had been no suggestion of impropriety; the security of the appellant was taken as so satisfactory that at times, to avoid delay when he was absent from the city, recognizances were signed by him in blank and kept ready for completion by the Court officials. The reason for the accumulation of charges was the doubt that they could be sustained in law. Apparently the legal officers of Montreal, acting in concert with those of the Province, had come to an agreement with the attorney for the Witnesses to have a test case proceeded with. Pending that, however, there was no stoppage of the sale of the tracts and this became the annoying circumstance that produced the volume of proceedings. On or about November 12 it was decided to require bail in cash for Witnesses so arrested and the sum set ranged from $100 to $300. No such bail was furnished by the appellant; his connection with giving security ended with this change of practice; and in the result, all of the charges in relation to which he had become surety were dismissed. At no time did he take any part in the distribution of the tracts: he was an adherent of the group but nothing more. It was shown that he had leased to another member premises in Sherbrooke which were used as a hall for carrying on religious meetings: but it is unnecessary to do more than mention that fact to reject it as having no bearing on the issues raised. Beyond the giving of bail and being an adherent, the appellant is free from any relation that could be tortured into a badge of character pertinent to his fitness or unfitness to hold a liquor licence. The mounting resistance that stopped the surety bail sought other means of crushing the propagandist invasion and among the circumstances looked into was the situation of the appellant. Admittedly an adherent, he was enabling these protagonists to be at large to carry on their campaign of publishing what they believed to be the Christian truth as revealed by the Bible; he was also the holder of a liquor licence, a "privilege" granted by the Province, the profits from which, as it was seen by the authorities, he was using to promote the disturbance of settled beliefs and arouse community disaffection generally. Following discussions between the then Mr. Archambault, as the personality of the Liquor Commission, and the chief prosecuting officer in Montreal, the former, on or about November 21, telephoned to the respondent, advised him of those facts, and queried what should be done. Mr. Duplessis answered that the matter was serious and that the identity of the person 102

furnishing bail and the liquor licensee should be put beyond doubt. A few days later, that identity being established through a private investigator, Mr. Archambault again communicated with the respondent and, as a result of what passed between them, the licence, as of December 4, 1946, was revoked. In the meantime, about November 25, 1946, a blasting answer had come from the Witnesses. In an issue of one of the periodicals, under the heading "Quebec's Burning Hate", was a searing denunciation of what was alleged to be the savage persecution of Christian believers. Immediately instructions were sent out from the department of the Attorney-General ordering the confiscation of the issue and proceedings and were taken against one Boucher charging him with publication of a seditious libel. It is then wholly as a private citizen, an adherent of a religious group, holding a liquor licence and furnishing bail to arrested persons for no other purpose than to enable them to be released from detention pending the determination of the charges against them, and with no other relevant considerations to be taken into account, that he is involved in the issues of this controversy. The complementary state of things is equally free from doubt. From the evidence of Mr. Duplessis and Mr. Archambault alone, it appears that the action taken by the latter as the general manager and sole member of the Commission was dictated by Mr. Duplessis as Attorney-General and Prime Minister of the province; that that step was taken as a means of bringing to a halt the activities of the Witnesses, to punish the appellant for the part he had played not only by revoking the existing licence but in declaring him barred from one "forever", and to warn others that they similarly would be stripped of provincial "privileges" if they persisted in any activity directly or indirectly related to the Witnesses and to the objectionable campaign. The respondent felt that action to be his duty, something which his conscience demanded of him; and as representing the provincial government his decision became automatically that of Mr. Archambault and the Commission. The following excerpts of evidence make this clear: [The evidence is excluded.] In these circumstances, when the de facto power of the Executive over its appointees at will to such a statutory public function is exercised deliberately and intentionally to destroy the vital business interests of a citizen, is there legal redress by him against the person so acting? This calls for an examination of the statutory provisions governing the issue, renewal and revocation of liquor licences and the scope of authority entrusted by law to the Attorney-General and the government in relation to the administration of the Act. The liquor law is contained in R.S.Q. 1941, c. 255, entitled An Act Respecting Alcoholic Liquor. A Commission is created as a corporation, the only member of which is the general manager. By s.5

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The exercise of the functions, duties and powers of the Quebec Liquor Commission shall be vested in one person alone, named by the Lieutenant-Governor in Council, with the title of Manager. The remuneration of such person shall be determined by the Lieutenant-Governor in Council and be paid out of the revenues of the Liquor Commission. R.S. 1925, c.37, s.5; 1 Ed. VII (2), c. 14, ss. 1 and 5; 1 Geo. VI, c. 22, ss. 1 and 5. The entire staff for carrying out the duties of the Commission are appointed by the general manager -here Mr. Archambault -- who fixes salaries and assigns functions, the Lieutenant-Governor in Council reserving the right of approval of the salaries. Besides the general operation of buying and selling liquor throughout the province and doing all things necessary to that end, the Commission is authorized by s. 9 (e) to "grant, refuse or cancel permits for the sale of alcoholic liquors or other permits in regard thereto and to transfer the permit of any person deceased". By s. 12 suits against the general manager for acts done in the exercise of his duties require the authority of the Chief Justice of the province, and the Commission can be sued only with the consent of the Attorney-General. Every officer of the Commission is declared to be a public officer and by R.S.Q. 1941, c. 10, s. 2, holds office during pleasure. By s. 19 the Commission shall pay over to the Provincial Treasurer any moneys which the latter considers available and by s. 20 the Commission is to account to the Provincial Treasurer for its receipts, disbursements, assets and liabilities. Sections 30 and 32 provide for the issue of permits to sell; they are to be granted to individuals only, in their own names; by s. 34 the Commission "may refuse to grant any permit"; subs. (2) provides for permits in special cases of municipalities where prohibition of sale is revoked in whole or part by by-law; subs. (3) restricts or refuses the grant of permits in certain cities the Council of which so requests; but it is provided that ... If the fyling of such by-law takes place after the Commission has granted a permit in such city or town, the Commission shall be unable to give effect to the request before the first of May next after the date of fyling. Subsection (4) deals with a refusal to issue permits in small cities unless requested by a by-law, approved by a majority vote of the electors. By subs. (6) special power is given the Commission to grant permits to hotels in summer resorts for five months only notwithstanding that requests under subss. (2) and (4) are not made. Section 35 prescribes the expiration of every permit on April 30 of each year. Dealing with cancellation, the section provides that the "Commission may cancel any permit at its discretion". Besides the loss of the privilege and without the necessity of legal proceedings, cancellation entails loss of fees paid to obtain it and confiscation of the liquor in the possession of the holder and the receptacles containing it. If the cancellation is not followed by prosecution for an offence under the Act, compensation is provided for certain items of the forfeiture. Subsection (5) requires the Commission to cancel any permit made use of on behalf of a person other than the holder; s. 36 requires cancellation in specified cases. The sale of liquor is, by s. 42, forbidden to various persons. Section 148 places upon the Attorney-General the duty of Assuring the observance of this Act and of the Alcoholic Liquor Possession and Transportation Act (Chap. 256), and investigating, preventing and suppressing the infringements of such acts, in

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every way authorized thereby; Conducting the suits or prosecutions for infringements of this Act or of the said Alcoholic Liquor Possession and Transportation Act. R.S. 1925, c. 37, s. 78a; 24 Geo. V, c. 17, s. 17. The provisions of the statute, which may be supplemented by detailed regulations, furnish a code for the complete administration of the sale and distribution of alcoholic liquors directed by the Commission as a public service, for all legitimate purposes of the populace. It recognizes the association of wines and liquors as embellishments of food and its ritual and as an interest of the public. As put in Macbeth, the "sauce to meat is ceremony", and so we have restaurants, cafés, hotels and other places of serving food, specifically provided for in that association. At the same time the issue of permits has a complementary interest in those so catering to the public. The continuance of the permit over the years, as in this case, not only recognizes its virtual necessity to a superior class restaurant but also its identification with the business carried on. The provisions for assignment of the permit are to this most pertinent and they were exemplified in the continuity of the business here. As its exercise continues, the economic life of the holder becomes progressively more deeply implicated with the privilege while at the same time his vocation becomes correspondingly dependent on it. The field of licensed occupations and businesses of this nature is steadily becoming of greater concern to citizens generally. It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiality and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute: the duty of a Commission is to serve those purposes and those only. A decision to deny or cancel such a privilege lies within the "discretion" of the Commission; but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration. In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. "Discretion" necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? the legislature cannot be so distorted.

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To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred. There was here not only revocation of the existing permit but a declaration of a future, definitive disqualification of the appellant to obtain one: it was to be "forever". This purports to divest his citizenship status of its incident of membership in the class of those of the public to whom such a privilege could be extended. Under the statutory language here, that is not competent to the Commission and a fortiori to the government or the respondent: McGillivray v. Kimber [(1915), 52 S.C.R. 146, 26 D.L.R. 164.]. There is here an administrative tribunal which, in certain respects, is to act in a judicial manner; and even on the view of the dissenting justices in McGillivray, there is liability: what could be more malicious than to punish this licensee for having done what he had an absolute right to do in a matter utterly irrelevant to the Liquor Act? Malice in the proper sense in simply acting for a reason and purpose knowingly foreign to the administration, to which was added here the element of intentional punishment by what was virtually vocation outlawry. It may be difficult if not impossible in cases generally to demonstrate a breach of this public duty in the illegal purpose served; there may be no means, even if proceedings against the Commission were permitted by the Attorney-General, as here they were refused, of compelling the Commission to justify a refusal or revocation or to give reasons for its action; on these questions I make no observation; but in the case before us that difficulty is not present: the reasons are openly avowed. The act of the respondent through the instrumentality of the Commission brought about a breach of an implied public statutory duty toward the appellant; it was a gross abuse of legal power expressly intended to punish him for an act wholly irrelevant to the statute, a punishment which inflicted on him, as it was intended to do, the destruction of his economic life as a restaurant keeper within the province. Whatever may be the immunity of the Commission or its member from an action for damages, there is none in the respondent. He was under no duty in relation to the appellant and his act was an intrusion upon the functions of a statutory body. The injury done by him was a fault engaging liability within the principles of the underlying public law of Quebec: Mostyn v. Fabrigas [98 E.R. 1021], and under art. 1053 of the Civil Code. That, in the presence of expanding administrative regulation of economic activities, such a step and its consequences are to be suffered by the victim without recourse or remedy, that an administration according to law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure. An administration of licences on the highest level of fair and impartial treatment to all may be forced to follow the practice of "first come, first served", which makes the strictest observance of equal responsibility to all of even greater importance; at this stage of developing government it would be a danger of high consequence to tolerate such a departure from good faith in executing the legislative purpose. It should be added, however, that that principle is not, by this language, intended to be extended to ordinary governmental employment: with that we are not here concerned. 106

It was urged by Mr. Beaulieu that the respondent, as the incumbent of an office of state, so long as he was proceeding in "good faith", was free to act in a matter of this kind virtually as he pleased. The office of Attorney-General traditionally and by statute carries duties that relate to advising the Executive, including here, administrative bodies, enforcing the public law and directing the administration of justice. In any decision of the statutory body in this case, he had no part to play beyond giving advice on legal questions arising. In that role his action should have been limited to advice on the validity of a revocation for such a reason or purpose and what that advice should have been does not seem to me to admit of any doubt. To pass from this limited scope of action to that of bringing about a step by the Commission beyond the bounds prescribed by the legislature for its exclusive action converted what was done into his personal act. "Good faith" in this context, applicable both to the respondent and the general manager, means carrying out the statute according to its intent and for its purpose; it means good faith in acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose; it does not mean for the purposes of punishing a person for exercising an unchallengeable right; it does not mean arbitrarily and illegally attempting to divest a citizen of an incident of his civil status. I mention, in order to make clear that it has not been overlooked, the decision of the House of Lords in Allen v. Flood [[1898] A.C. 1.], in which the principle was laid down that an act of an individual otherwise not actionable does not become so because of the motive or reason for doing it, even maliciously to injure, as distinguished from an act done by two or more persons. No contention was made in the present case based on agreed action by the respondent and Mr. Archambault. In Allen v. Flood, the actor was a labour leader and the victims non-union workmen who were lawfully dismissed by their employer to avoid a strike involving no breach of contract or law. Here the act done was in relation to a public administration affecting the rights of a citizen to enjoy a public privilege, and a duty implied by the statute toward the victim was violated. The existing permit was an interest for which the appellant was entitled to protection against any unauthorized interference, and the illegal destruction of which gave rise to a remedy for the damages suffered. In Allen v. Flood there were no such elements. Nor is it necessary to examine the question whether on the basis of an improper revocation the appellant could have compelled the issue of a new permit or whether the purported revocation was a void act. The revocation was de facto, it was intended to end the privilege and to bring about the consequences that followed. As against the respondent, the appellant was entitled to treat the breach of duty as effecting a revocation and to elect for damages. Mr. Scott argued further that even if the revocation were within the scope of discretion and not a breach of duty, the intervention of the respondent in so using the Commission was equally a fault. The proposition generalized is this: where, by a statute restricting the ordinary activities of citizens, a privilege is conferred by an administrative body, the continuance of that enjoyment is to be free from 107

the influence of third persons on that body for the purpose only of injuring the privilege holder. It is the application to such a privilege of the proposition urged but rejected in Allen v. Flood in the case of a private employment. The grounds of distinction between the two cases have been pointed out; but for the reasons given consideration of this ground is unnecessary and I express no opinion for or against it. A subsidiary defence was that notice of action had not been given as required by art. 88 C.C.P. This provides generally that, without such notice, no public officer or person fulfilling any public function or duty is liable in damages "by reason of any act done by him in the exercise of his functions". Was the act here, then, done by the respondent in the course of that exercise? The basis of the claim, as I have found it, is that the act was quite beyond the scope of any function or duty committed to him, so far so that it was one done exclusively in a private capacity, however much in fact the influence of public office and power may have carried over into it. It would be only through an assumption of a general overriding power of executive direction in statutory administrative matters that any colour of propriety in the act could be found. But such an assumption would be in direct conflict with fundamental postulates of our provincial as well as dominion government; and in the actual circumstances there is not a shadow of justification for it in the statutory language. The damages suffered involved the vocation of the appellant within the province. Any attempt at a precise computation or estimate must assume probabilities in an area of uncertainty and risk. The situation is one which The Court should approach as a jury would, in a view of its broad features; and in the best consideration I can give to them, the damages should be fixed at the sum of $25,000 plus that allowed by the trial court. I would therefore allow the appeals, set aside the judgment of the Court of Queen's Bench and restore the judgment at trial modified by increasing the damages to the sum of $33,123.53. The appellant should have his costs in the Court of Queen's Bench and in this Court. [The other judgments are not reproduced.]

Reference re Manitoba Language Rights Act, 1870

[1985] 1 S.C.R. 721 Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain JJ. REFERENCE BY THE GOVERNOR IN COUNCIL [....] II Manitoba's Language Legislation 108

5 Section 23 of the Manitoba Act, 1870 was the culmination of many years of co-existence and struggle between the English, the French, and the Metis in Red River Colony, the predecessor to the present day Province of Manitoba. Though the region was originally claimed by the English Hudson's Bay Company in 1670 under its Royal Charter, for much of its pre- confederation history, Red River Colony was inhabited by Anglophones and Francophones in roughly equal proportions. On November 19, 1869 the Hudson's Bay Company issued a deed of surrender to transfer the North-West Territories, which included the Red River Colony, to Canada. The transfer of title took effect on July 15, 1870. 6 Between November 19, 1869 and July 15, 1870, the provisional government of Red River Colony attempted to unite the various segments of the Red River colony and drew up a "Bill of Rights" to be used in negotiations with Canada. A Convention of Delegates was elected in January, 1870 to prepare the terms upon which Red River Colony would join the Confederation. The Convention was made up of equal numbers of anglophones and francophones elected from the various French and English parishes. 7 The final version of the Bill of Rights which was used by the Convention delegates in their negotiations with Ottawa, contained these provisions: That the English and French languages be common in the Legislature, and in the courts, and that all public documents, as well as all Acts of the Legislature, be published in both languages. That the Judge of the Superior Court speak the English and French languages. These clauses were re-drafted by the Crown lawyers in Ottawa and included in a Bill to be introduced in Parliament. The Bill passed through Parliament with no opposition from either side of the House, resulting in s. 23 of the Manitoba Act, 1870. In 1871 this Act was entrenched in the British North America Act, 1871 (renamed Constitution Act, 1871 in the Constitution Act, 1982, s. 53). The Manitoba Act, 1870 is now entrenched in the Constitution of Canada by virtue of s. 52(2)(b) of the Constitution Act, 1982. 8 In 1890 An Act to Provide that the English Language shall be the Official Language of the Province of Manitoba, 1890 (Man.), c. 14 (hereafter "The Official Language Act, 1890"), was enacted by the Manitoba Legislature. This Act provides:

(1)

Any statute or law to the contrary notwithstanding, the English language only shall be used in the records and journals of the House of Assembly for the Province of Manitoba, and in any pleadings or process in or issuing from any court in the Province of Manitoba. The Acts of the Legislature of the Province of Manitoba need only be printed and published in the English language. This Act shall only apply so far as this Legislature has jurisdiction so to enact, and shall come into force on the day it is assented to.

(2)

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9 Upon enactment of The Official Language Act, 1890 the Province of Manitoba ceased publication of the French version of Legislative Records, Journals and Acts. III Legal Challenges to Manitoba's Language Legislation 10 The Official Language Act, 1890 was challenged before the Manitoba courts soon after it was enacted. It was ruled ultra vires in 1892 by Judge Prud'homme of the County Court of St. Boniface, who stated: [TRANSLATION] "I am therefore of the view that c. 14, 53 Vict. is ultra vires the legislature of Manitoba and that Section 23 of the Manitoba Act cannot be changed and even less repealed by the legislature of that Province": Pellant v. Hebert, first published in Le Manitoba, (a French language newspaper), March 9, 1892, reported in (1981), 12 R.G.D. 242. This ruling was not followed by the legislature or the Government of Manitoba. The Official Language Act, 1890 remained in successive revisions of the Statutes of Manitoba; the Government did not resume bilingual publication of Legislative Records, Journals or Acts. 11 In 1909, The Official Language Act, 1890 was again challenged in Manitoba Courts and again ruled unconstitutional: Bertrand v. Dussault, January 30, 1909, County Court of St. Boniface (unreported), reproduced in Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445 (Man. C.A.), at pp. 458-62. According to Monnin J.A. in Re Forest, supra, at p. 458, "This latter decision, not reported, appears to have been unknown or ignored". 12 In 1976, a third attack was mounted against The Official Language Act, 1890 and the Act was ruled unconstitutional: R. v. Forest (1976), 74 D.L.R. (3d) 704 (Man. Co. Ct). Nonetheless, The Official Language Act, 1890 remained on the Manitoba statute books; bilingual enactment, printing and publication of Acts of the Manitoba Legislature was not resumed. 13 In 1979, the constitutionality of The Official Language Act, 1890 was tested before this Court. On December 13, 1979, in Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032, this Court, in unanimous reasons, held that the provisions of Manitoba's Official Language Act, 1890 were in conflict with s. 23 of the Manitoba Act, 1870 and unconstitutional. [....] The Consequences of the Manitoba Legislature's Failure to Enact, Print and Publish in Both Languages 45 Section 23 of the Manitoba Act, 1870 entrenches a mandatory requirement to enact, print, and publish all Acts of the Legislature in both official languages (see Blaikie No. 1, supra). It establishes a constitutional duty on the Manitoba Legislature with respect to the manner and form of enactment of its legislation. This duty protects the substantive rights of all Manitobans to equal access to the law in either the French or the English language.

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46 Section 23 of the Manitoba Act, 1870 is a specific manifestation of the general right of FrancoManitobans to use their own language. The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society. 47 The constitutional entrenchment of a duty on the Manitoba Legislature to enact, print and publish in both French and English in s. 23 of the Manitoba Act, 1870 confers upon the judiciary the responsibility of protecting the correlative language rights of all Manitobans including the FrancoManitoban minority. The judiciary is the institution charged with the duty of ensuring that the government complies with the Constitution. We must protect those whose constitutional rights have been violated, whomever they may be, and whatever the reasons for the violation. 48 The Constitution of a country is a statement of the will of the people to be governed in accordance with certain principles held as fundamental and certain prescriptions restrictive of the powers of the legislature and government. It is, as s. 52 of the Constitution Act, 1982 declares, the "supreme law" of the nation, unalterable by the normal legislative process, and unsuffering of laws inconsistent with it. The duty of the judiciary is to interpret and apply the laws of Canada and each of the provinces, and it is thus our duty to ensure that the constitutional law prevails. 49 As this Court said in Amax Potash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576, at p. 590: A state, it is said, is sovereign and it is not for the Courts to pass upon the policy or wisdom of legislative will. As a broad statement of principle that is undoubtedly correct, but the general principle must yield to the requisites of the constitution in a federal state. By it the bounds of sovereignty are defined and supremacy circumscribed. The Courts will not question the wisdom of enactments which, by the terms of the Canadian Constitution are within the competence of the Legislatures, but it is the high duty of this Court to insure that the legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power. (Emphasis added.) See also Re: Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 (the Patriation Reference), at pp. 841, 848, 877. 50 Since April 17, 1982, the mandate of the judiciary to protect the Constitution has been embodied in s. 52 of the Constitution Act, 1982. This section reads:

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52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Prior to enactment of the Constitution Act, 1982, the governing provision was, pursuant to the Statute of Westminster, 1931, s. 2 of the Colonial Laws Validity Act, 1865, 1865 (U.K.), 28 & 29 Vict., c. 63, which provides: 2. Any Colonial Law which is or shall be in any respect repugnant to the Provisions of any Act of Parliament extending to the Colony to which such Law may relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the Force and Effect of such Act, shall be read subject to such Act, Order, or Regulation, and shall, to the Extent of such Repugnancy, but not otherwise, be and remain absolutely void and inoperative. (Emphasis added.) 51 The constitutional jurisprudence, developed under the Colonial Laws Validity Act, 1865, was based on the invalidity doctrine. If Parliament or a provincial legislature was ultra vires its constitutionally allocated powers in enacting a certain Act, then the repugnancy of that Act with the provisions of the British North America Act, 1867 would mean that the Act was "absolutely void and inoperative". 52 Section 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years. In a case where constitutional manner and form requirements have not been complied with, the consequence of such non-compliance continues to be invalidity. The words "of no force or effect" mean that a law thus inconsistent with the Constitution has no force or effect because it is invalid. 53 Canadian courts have been unanimous in finding that failure to respect mandatory requirements to enact, print and publish statutes and regulations in both official languages leads to inconsistency and thus invalidity. See, Société Asbestos Ltée. c. Société nationale de l'amiante, supra; Procureur général du Quebec v. Collier, [1983] C.S. 366; Procureur général du Quebec v. Brunet, J.E. 83-510, reversed on other grounds, J.E. 84-62 (S.C.). These cases accord with the general principle that failure to comply with constitutional provisions dealing with the manner and form of the enactment of legislation will result in inconsistency and thus invalidity. See Bribery Commissioner v. Ranasinghe, supra. 54 In the present case the unilingual enactments of the Manitoba Legislature are inconsistent with s. 23 of the Manitoba Act, 1870 since the constitutionally required manner and form for their enactment has not been followed. Thus they are invalid and of no force or effect.

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C) The Rule of Law 1. The Principle 55 The difficulty with the fact that the unilingual Acts of the Legislature of Manitoba must be declared invalid and of no force or effect is that, without going further, a legal vacuum will be created with consequent legal chaos in the Province of Manitoba. The Manitoba Legislature has, since 1890, enacted nearly all of its laws in English only. Thus, to find that the unilingual laws of Manitoba are invalid and of no force or effect would mean that only laws enacted in both French and English before 1890, would continue to be valid, and would still be in force even if the law had purportedly been repealed or amended by a post-1890 unilingual statute; matters that were not regulated by laws enacted before 1890 would now be unregulated by law, unless a pre-confederation law or the common law provided a rule. 56 The situation of the various institutions of provincial government would be as follows: the courts, administrative tribunals, public officials, municipal corporations, school boards, professional governing bodies, and all other bodies created by law, to the extent that they derive their existence from or purport to exercise powers conferred by Manitoba laws enacted since 1890 in English only, would be acting without legal authority. 57 Questions as to the validity of the present composition of the Manitoba Legislature might also be raised. Under the Manitoba Act, 1870, the Legislative Assembly was to be composed of 24 members (s. 14), and voters were to be male and over 21 (s. 17). By laws enacted after 1890 in English only, the size of the Legislative Assembly was increased to 57 members, and all persons, both women and men, over 18 were granted the right to vote: see Act to amend "The Manitoba Election Act", 1916 (Man.), c. 36; Act to Amend The Election Act, 1969 (Man.), 2nd Sess., c. 7; The Legislative Assembly Act, R.S.M. 1970, c. L110, s. 4(1). If these laws are invalid and of no force or effect, the present composition of the Manitoba Legislature might be invalid. The invalidity of the post-1890 laws would not touch the existence of the Legislature or its powers since these are matters of federal constitutional law: Constitution Act, 1867, ss. 92, 92A, 93, 95; Manitoba Act, 1870, s. 2. 58 Finally, all legal rights, obligations and other effects which have purportedly arisen under all Acts of the Manitoba Legislature since 1890 would be open to challenge to the extent that their validity and enforceability depends upon a regime of unconstitutional unilingual laws. 59 In the present case, declaring the Acts of the Legislature of Manitoba invalid and of no force or effect would, without more, undermine the principle of the rule of law. The rule of law, a fundamental principle of our Constitution, must mean at least two things. First, that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power. Indeed, it is because of the supremacy of law over the government, as established in s. 23 of the Manitoba Act, 1870 and s. 52 of the Constitution Act, 1982, that this Court must find the unconstitutional laws of Manitoba to be invalid and of no force and effect. 113

60 Second, the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. Law and order are indispensable elements of civilized life. "The rule of law in this sense implies ... simply the existence of public order." (W.I. Jennings, The Law and the Constitution (5th ed., 1959), at p. 43). As John Locke once said, "A government without laws is, I suppose, a mystery in politics, inconceivable to human capacity and inconsistent with human society" (quoted by Lord Wilberforce in Carl-Zeiss-Stiftung v. Rayner and Keeler Ltd. (No. 2), [1966] 2 All E.R. 536 (H.L.) at p. 577). According to Wade and Phillips, Constitutional and Administrative Law (9th ed. 1977), at p. 89: "... the rule of law expresses a preference for law and order within a community rather than anarchy, warfare and constant strife. In this sense, the rule of law is a philosophical view of society which in the Western tradition is linked with basic democratic notions." 61 It is this second aspect of the rule of law that is of concern in the present situation. The conclusion that the Acts of the Legislature of Manitoba are invalid and of no force or effect means that the positive legal order which has purportedly regulated the affairs of the citizens of Manitoba since 1890 will be destroyed and the rights, obligations and other effects arising under these laws will be invalid and unenforceable. As for the future, since it is reasonable to assume that it will be impossible for the Legislature of Manitoba to rectify instantaneously the constitutional defect, the Acts of the Manitoba Legislature will be invalid and of no force or effect until they are translated, re-enacted, printed and published in both languages. 62 Such results would certainly offend the rule of law. As we stated in the Patriation Reference, supra, at pp. 805-06: The "rule of law" is a highly textured expression ... conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority. (Emphasis added.) Dr. Raz has said: "'The rule of law' means literally what it says: the rule of the law ... It has two aspects: (1) that people should be ruled by the law and obey it, and (2) that the law should be such that people will be able to be guided by it". (The Authority of Law, (1979), at pp. 212-13). The rule of law simply cannot be fulfilled in a province that has no positive law. 63 The constitutional status of the rule of law is beyond question. The preamble to the Constitution Act, 1982 states: Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law. (Emphasis added.)

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This is explicit recognition that "the rule of law [is] a fundamental postulate of our constitutional structure" (per Rand J., Roncarelli v. Duplessis [1959] S.C.R. 121, at p. 142). The rule of law has always been understood as the very basis of the English Constitution characterising the political institutions of England from the time of the Norman Conquest (A.V. Dicey, The Law of the Constitution (10th ed. 1959), at p. 183). It becomes a postulate of our own Constitutional order by way of the preamble to the Constitution Act, 1982, and its implicit inclusion in the preamble to the Constitution Act, 1867 by virtue of the words "with a Constitution similar in principle to that of the United Kingdom". 64 Additional to the inclusion of the rule of law in the preambles of the Constitution Acts of 1867 and 1982, the principle is clearly implicit in the very nature of a Constitution. The Constitution, as the Supreme Law, must be understood as a purposive ordering of social relations providing a basis upon which an actual order of positive laws can be brought into existence. The founders of this nation must have intended, as one of the basic principles of nation building, that Canada be a society of legal order and normative structure: one governed by rule of law. While this is not set out in a specific provision, the principle of the rule of law is clearly a principle of our Constitution. 65 This Court cannot take a narrow and literal approach to constitutional interpretation. The jurisprudence of the Court evidences a willingness to supplement textual analysis with historical, contextual and purposive interpretation in order to ascertain the intent of the makers of our Constitution. 66 The Court has in the past inferred constitutional principles from the preambles to the Constitution Acts and the general object and purpose of the Constitution. In the Patriation Reference, supra, the Court found the federal principle to be inherent in the Constitution in this way. At pp. 905906 the Court said: The reason for the rule is the federal principle. Canada is a federal union. The preamble of the B.N.A. Act states that ... the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united ... The federal character of the Canadian Constitution was recognized in innumerable judicial pronouncements. We will quote only one, that of Lord Watson in Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick, [1892] A.C. 437, at pp. 441-42: The object of the Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy.

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The federal principle cannot be reconciled with a state of affairs where the modification of provincial legislative powers could be obtained by the unilateral action of the federal authorities. It would indeed offend the federal principle that "a radical change to ... (the) constitution (be) taken at the request of a bare majority of the members of the Canadian House of Commons and Senate" (Report of Dominion Provincial Conference, 1931, at p. 3). Martland and Ritchie JJ. in their dissent stated (at p. 841): However, on occasions, this Court has had to consider issues for which the B.N.A. Act offered no answer. In each case, this Court has denied the assertion of any power which would offend against the basic principles of the Constitution. They went on to discuss a number of the more important decisions rendered by this Court and conclude with the following (at pp. 844-45): It may be noted that the above instances of judicially developed legal principles and doctrines share several characteristics. First, none is to be found in express provisions of the British North America Acts or other constitutional enactments. Second, all have been perceived to represent constitutional requirements that are derived from the federal character of Canada's Constitution. Third, they have been accorded full legal force in the sense of being employed to strike down legislative enactments. Fourth, each was judicially developed in response to a particular legislative initiative in respect of which it might have been observed, as it was by Dickson J. in the Amax (supra) case at p. 591, that "There are no Canadian constitutional law precedents addressed directly to the present issue ...". (Emphasis added.) In other words, in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada. In the case of the Patriation Reference, supra, this unwritten postulate was the principle of federalism. In the present case it is the principle of rule of law. [....]

Reference re Remuneration of Provincial Court Judges, 1997

[1997] 3 S.C.R. 3 Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ. [These combined cases from three different provinces all raise the question whether legislation or regulations that reduced the salaries of provincial court judges violated the right in section 11 (d) of the Canadian Charter of Rights and Freedoms of persons charged with an offence to "a fair and public 116

hearing before an independent and impartial tribunal". In general, these reductions were part of a broader reduction in the salaries of civil servants, though in some cases the legislation challenged applied specifically to provincial court judges. The Alberta case also raised the question whether the disciplinary process and grounds for removal of provincial court judges violates section II (d) of the Charter. In addition, that case raised the issue whether the power of the Attorney General to designate the judges" place of residence and the court's sitting days violated section II(d). The statute at issue in the Manitoba case established a public sector reduced work week that meant that court staff and personnel were unavailable on certain days, effectively shutting down the courts on those days. The question whether the government had exerted improper pressure on the judges not to raise this constitutional challenge was also considered. The P.E.I. case also raised the question whether the location of the Provincial Court's offices in the same building as government departments, including the Crown Attorneys' offices, infringed administrative independence.] The judgment of Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by THE CHIEF JUSTICE:--

I.

Introduction

1 The four appeals handed down today -- Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island (No. 24508), Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island (No. 24778), R. v. Campbell, R. v. Ekmecic and R. v. Wickman (No. 24831), and Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice) (No. 24846) -- raise a range of issues relating to the independence of provincial courts, but are united by a single issue: whether and how the guarantee of judicial independence in s. 11(d) of the Canadian Charter of Rights and Freedoms restricts the manner by and the extent to which provincial governments and legislatures can reduce the salaries of provincial court judges. Moreover, in my respectful opinion, they implicate the broader question of whether the constitutional home of judicial independence lies in the express provisions of the Constitution Acts, 1867 to 1982, or exterior to the sections of those documents. ... [....] 8 The task of the Court in these appeals is to explain the proper constitutional relationship between provincial court judges and provincial executives, and thereby assist in removing the strain on this relationship. The failure to do so would undermine "the web of institutional relationships... which continue to form the backbone of our constitutional system" (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at para. 3).

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9 Although these cases implicate the constitutional protection afforded to the financial security of provincial court judges, the purpose of the constitutional guarantee of financial security -- found in s. 11(d) of the Charter, and also in the preamble to and s. 100 of the Constitution Act, 1867 -- is not to benefit the members of the courts which come within the scope of those provisions. The benefit that the members of those courts derive is purely secondary. Financial security must be understood as merely an aspect of judicial independence, which in turn is not an end in itself. Judicial independence is valued because it serves important societal goals -- it is a means to secure those goals. 10 One of these goals is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases. Another social goal served by judicial independence is the maintenance of the rule of law, one aspect of which is the constitutional principle that the exercise of all public power must find its ultimate source in a legal rule. It is with these broader objectives in mind that these reasons, and the disposition of these appeals, must be understood. [....]

IV. A.

Financial Security Introduction: The Unwritten Basis of Judicial Independence [....]

83 .... Notwithstanding the presence of s. 11(d) of the Charter, and ss. 96-100 of the Constitution Act, 1867, I am of the view that judicial independence is at root an unwritten constitutional principle, in the sense that it is exterior to the particular sections of the Constitution Acts. The existence of that principle, whose origins can be traced to the Act of Settlement of 1701, is recognized and affirmed by the preamble to the Constitution Act, 1867. The specific provisions of the Constitution Acts, 1867 to 1982, merely "elaborate that principle in the institutional apparatus which they create or contemplate": Switzman v. Elbling, [1957] S.C.R. 285, at p. 306, per Rand J. [....] 90 The proposition that the Canadian Constitution embraces unwritten norms was recently confirmed by this Court in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319. .... [Lamer C.J. cited the conclusion of McLachlin J. in that case that the use of the word "includes" in section 52(2) of the Constitution Act, 1982 indicated that the list of constitutional documents in s. 52(2) was not exhaustive and continued:]

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92 .... I agree with the general principle that the Constitution embraces unwritten, as well as written rules, largely on the basis of the wording of s. 52(2). Indeed, given that ours is a Constitution that has emerged from a constitutional order whose fundamental rules are not authoritatively set down in a single document, or a set of documents, it is of no surprise that our Constitution should retain some aspect of this legacy. 93 However, I do wish to add a note of caution. As I said in New Brunswick Broadcasting, supra, at p. 355, the constitutional history of Canada can be understood, in part, as a process of evolution "which [has] culminated in the supremacy of a definitive written constitution". There are many important reasons for the preference for a written constitution over an unwritten one, not the least of which is the promotion of legal certainty and through it the legitimacy of constitutional judicial review. Given these concerns, which go to the heart of the project of constitutionalism, it is of the utmost importance to articulate what the source of those unwritten norms is. 94 In my opinion, the existence of many of the unwritten rules of the Canadian Constitution can be explained by reference to the preamble of the Constitution Act, 1867. The relevant paragraph states in full: Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: .... 95 .... Under normal circumstances, preambles can be used to identify the purpose of a statute, and also as an aid to construing ambiguous statutory language: Driedger on the Construction of Statutes (3rd ed. 1994), by R. Sullivan, at p. 261. The preamble to the Constitution Act, 1867, certainly operates in this fashion. However, in my view, it goes even further. In the words of Rand J., the preamble articulates "the political theory which the Act embodies": Switzman, supra, at p. 306. It recognizes and affirms the basic principles which are the very source of the substantive provisions of the Constitution Act, 1867. As I have said above, those provisions merely elaborate those organizing principles in the institutional apparatus they create or contemplate. As such, the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme. It is the means by which the underlying logic of the Act can be given the force of law. 96 What are the organizing principles of the Constitution Act, 1867, as expressed in the preamble? The preamble speaks of the desire of the founding provinces "to be federally united into One Dominion", and thus, addresses the structure of the division of powers. Moreover, by its reference to "a Constitution similar in Principle to that of the United Kingdom", the preamble indicates that the legal and institutional structure of constitutional democracy in Canada should be similar to that of the legal regime out of which the Canadian Constitution emerged. To my mind, both of these aspects of 119

the preamble explain many of the cases in which the Court has, through the normal process of constitutional interpretation, stated some fundamental rules of Canadian constitutional law which are not found in the express terms of the Constitution Act, 1867. [Lamer C.J. cited the obligation of the courts of one province to recognize the judgments of courts of other provinces and the doctrine of paramountcy as examples. Another example was the application of the rule of law in Ref re Manitoba Language Rights. Lamer C.J. also cited the principle of democratically elected legislative bodies, including the existence of legislative privileges.] [....] 102 Another implication of the preamble's recognition of Parliamentary democracy has been an appreciation of the interdependence between democratic governance and freedom of political speech. Thus, members of the Court have reasoned that Parliamentary democracy brought with it "all its social implications" (Switzman, supra, at p. 306, per Rand J.), including the implication that these institutions would wor[k] under the influence of public opinion and public discussion... [because] such institutions derive their efficacy from the free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack, from the freest and fullest analysis and examination from every point of view of political proposals. (Reference re Alberta Statutes, [1938] S.C.R. 100, at p. 133, per Duff C.J.) Political freedoms, such as the right to freedom of expression, are not enumerated heads of jurisdiction under ss. 91 and 92 of the Constitution Act, 1867; the document is silent on their very existence. However, given the importance of political expression to national political life, combined with the intention to create one country, members of the Court have taken the position that the limitation of that expression is solely a matter for Parliament, not the provincial legislatures: Reference re Alberta Statutes, supra, at p. 134, per Duff C.J., and at p. 146, per Cannon J.; Saumur, supra, at pp. 330-31, per Rand J., and at pp. 354-56, per Kellock J.; Switzman, supra, at p. 307, per Rand J., and at p. 328, per Abbott J. 103 The logic of this argument, however, compels a much more dramatic conclusion. Denying jurisdiction over political speech to the provincial legislatures does not limit Parliament's ability to do what the provinces cannot. However, given the interdependence between national political institutions and free speech, members of the Court have suggested that Parliament itself is incompetent to "abrogate this right of discussion and debate": Switzman, supra, at p. 328, per Abbott J.; also see Rand J. at p. 307; Saumur, supra, at p. 354, per Kellock J.; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 57, per Beetz J. In this way, the preamble's recognition of the democratic nature of Parliamentary governance has been used by some members of the Court to fashion an implied bill of rights, in the absence of any express indication to this effect in the 120

constitutional text. This has been done, in my opinion, out of a recognition that political institutions are fundamental to the "basic structure of our Constitution" (OPSEU, supra, at p. 57) and for that reason governments cannot undermine the mechanisms of political accountability which give those institutions definition, direction and legitimacy. [....] 105 The same approach applies to the protection of judicial independence....

106 The historical origins of the protection of judicial independence in the United Kingdom, and thus in the Canadian Constitution, can be traced to the Act of Settlement of 1701. As we said in Valente, supra, at p. 693, that Act was the "historical inspiration" for the judicature provisions of the Constitution Act, 1867. Admittedly, the Act only extends protection to judges of the English superior courts. However, our Constitution has evolved over time. In the same way that our understanding of rights and freedoms has grown, such that they have now been expressly entrenched through the enactment of the Constitution Act, 1982, so too has judicial independence grown into a principle that now extends to all courts, not just the superior courts of this country. 107 I also support this conclusion on the basis of the presence of s. 11(d) of the Charter, an express provision which protects the independence of provincial court judges only when those courts exercise jurisdiction in relation to offences. As I said earlier, the express provisions of the Constitution should be understood as elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867. Even though s. 11(d) is found in the newer part of our Constitution, the Charter, it can be understood in this way, since the Constitution is to be read as a unified whole: Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1206. An analogy can be drawn between the express reference in the preamble of the Constitution Act, 1982 to the rule of law and the implicit inclusion of that principle in the Constitution Act, 1867: Reference re Manitoba Language Rights, supra, at p. 750. Section 11(d), far from indicating that judicial independence is constitutionally enshrined for provincial courts only when those courts exercise jurisdiction over offences, is proof of the existence of a general principle of judicial independence that applies to all courts no matter what kind of cases they hear. 108 I reinforce this conclusion by reference to the central place that courts hold within the Canadian system of government. In OPSEU, as I have mentioned above, Beetz J. linked limitations on legislative sovereignty over political speech with "the existence of certain political institutions" as part of the "basic structure of our Constitution" (p. 57). However, political institutions are only one part of the basic structure of the Canadian Constitution. As this Court has said before, there are three branches of government -- the legislature, the executive, and the judiciary: Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at p. 469; R. v. Power, [1994] 1 S.C.R. 601, at p. 620. Courts, in other words, are equally "definitional to the Canadian understanding of constitutionalism" (Cooper, supra, at para. 11) as are political institutions. It follows that the same constitutional imperative -- the preservation of

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the basic structure -- which led Beetz J. to limit the power of legislatures to affect the operation of political institutions, also extends protection to the judicial institutions of our constitutional system. By implication, the jurisdiction of the provinces over "courts", as that term is used in s. 92(14) of the Constitution Act, 1867, contains within it an implied limitation that the independence of those courts cannot be undermined. 109 In conclusion, the express provisions of the Constitution Act, 1867 and the Charter are not an exhaustive written code for the protection of judicial independence in Canada. Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. In fact, it is in that preamble, which serves as the grand entrance hall to the castle of the Constitution, that the true source of our commitment to this foundational principle is located. However, since the parties and interveners have grounded their arguments in s. 11(d), I will resolve these appeals by reference to that provision.

B.

Section 11(d) of the Charter [....]

111 The starting point for my discussion is Valente, where in a unanimous judgment this Court laid down the interpretive framework for s. 11(d)'s guarantee of judicial independence and impartiality. Le Dain J., speaking for the Court, began by drawing a distinction between impartiality and independence. Later cases have referred to this distinction as "a firm line": Généreux, supra, at p. 283. Impartiality was defined as "a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case" (Valente, supra, at p. 685 (emphasis added)). It was tied to the traditional concern for the "absence of bias, actual or perceived". Independence, by contrast, focussed on the status of the court or tribunal. In particular, Le Dain J. emphasized that the independence protected by s. 11(d) flowed from "the traditional constitutional value of judicial independence", which he defined in terms of the relationship of the court or tribunal "to others, particularly the executive branch of government" (p. 685). As I expanded in R. v. Lippé, [1991] 2 S.C.R. 114, the independence protected by s. 11(d) is the independence of the judiciary from the other branches of government, and bodies which can exercise pressure on the judiciary through power conferred on them by the state. 112 Le Dain J. went on in Valente to state that independence was premised on the existence of a set of "objective conditions or guarantees" (p. 685), whose absence would lead to a finding that a tribunal or court was not independent. The existence of objective guarantees, of course, follows from the fact that independence is status oriented; the objective guarantees define that status. However, he went on to supplement the requirement for objective conditions with what could be interpreted as a further requirement: that the court or tribunal be reasonably perceived as independent. The reason for this additional requirement was that the guarantee of judicial independence has the goal not only of ensuring that justice is done in individual cases, but also of ensuring public confidence in the justice system. As he said (at p. 689): 122

Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. However, it would be a mistake to conclude that Le Dain J. intended the objective guarantees and the reasonable perception of independence to be two distinct concepts. Rather, the objective guarantees must be viewed as those guarantees that are necessary to ensure a reasonable perception of independence. As Le Dain J. said himself, for a court or tribunal to be perceived as independent, that "perception must... be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence" (p. 689). 113 Another point which emerges from Valente relates to the question of whose perceptions count. The answer given is that of the reasonable and informed person.... 114 After establishing these core propositions, Le Dain J. in Valente went on to discuss two sets of concepts; the three core characteristics of judicial independence, and what I term the two dimensions of judicial independence. 115 The three core characteristics identified by Le Dain J. are security of tenure, financial security, and administrative independence. Valente laid down (at p. 697) two requirements for security of tenure for provincial court judges: those judges could only be removed for cause "related to the capacity to perform judicial functions", and after a "judicial inquiry at which the judge affected is given a full opportunity to be heard".... 116 Financial security was defined in these terms (at p. 706): The essential point, in my opinion, is that the right to salary of a provincial court judge is established by law, and there is no way in which the Executive could interfere with that right in a manner to affect the independence of the individual judge. [Emphasis added.] Once again, the Court drew a distinction between the requirements of s. 100 of the Constitution Act, 1867 and s. 11(d); whereas the former provision requires that the salaries of superior court judges be set by Parliament directly, the latter allows salaries of provincial court judges to be set either by statute or through an order in council. 117 Finally, the Court defined the administrative independence of the provincial court, as control by the courts "over the administrative decisions that bear directly and immediately on the exercise of the judicial function" (p. 712). These were defined (at p. 709) in narrow terms as assignment of judges, sittings of the court, and court lists -- as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions.... 123

.... 118 The three core characteristics of judicial independence -- security of tenure, financial security, and administrative independence -- should be contrasted with what I have termed the two dimensions of judicial independence. In Valente, Le Dain J. drew a distinction between two dimensions of judicial independence, the individual independence of a judge and the institutional or collective independence of the court or tribunal of which that judge is a member. In other words, while individual independence attaches to individual judges, institutional or collective independence attaches to the court or tribunal as an institutional entity. The two different dimensions of judicial independence are related in the following way (Valente, supra, at p. 687): The relationship between these two aspects of judicial independence is that an individual judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which he or she presides is not independent of the other branches of government, in what is essential to its function, he or she cannot be said to be an independent tribunal. [....]

C.

Institutional Independence [....]

124 Beauregard identified a number of sources for judicial independence which are constitutional in nature. As a result, these sources additionally ground the institutional independence of the courts. The institutional independence of the courts emerges from the logic of federalism, which requires an impartial arbiter to settle jurisdictional disputes between the federal and provincial orders of government. Institutional independence also inheres in adjudication under the Charter, because the rights protected by that document are rights against the state. As well, the Court pointed to the preamble and judicature provisions of the Constitution Act, 1867, as additional sources of judicial independence; I also consider those sources to ground the judiciary's institutional independence. Taken together, it is clear that the institutional independence of the judiciary is "definitional to the Canadian understanding of constitutionalism" (Cooper, supra, at para. 11). 125 But the institutional independence of the judiciary reflects a deeper commitment to the separation of powers between and amongst the legislative, executive, and judicial organs of government: see Cooper, supra, at para. 13. This is also clear from Beauregard, where this Court noted (at p. 73) that although judicial independence had historically developed as a bulwark against the abuse of executive power, it equally applied against "other potential intrusions, including any from the legislative branch" as a result of legislation. 126 What follows as a consequence of the link between institutional independence and the separation of powers I will turn to shortly. The point I want to make first is that the institutional role

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demanded of the judiciary under our Constitution is a role which we now expect of provincial court judges. I am well aware that provincial courts are creatures of statute, and that their existence is not required by the Constitution. However, there is no doubt that these statutory courts play a critical role in enforcing the provisions and protecting the values of the Constitution. Inasmuch as that role has grown over the last few years, it is clear therefore that provincial courts must be granted some institutional independence. [....]

D.

Collective or Institutional Financial Security

(1) Introduction (a) Summary of General Principles 131 Given the importance of the institutional or collective dimension of judicial independence generally, what is the institutional or collective dimension of financial security? To my mind, financial security for the courts as an institution has three components, which all flow from the constitutional imperative that, to the extent possible, the relationship between the judiciary and the other branches of government be depoliticized. As I explain below, in the context of institutional or collective financial security, this imperative demands that the courts both be free and appear to be free from political interference through economic manipulation by the other branches of government, and that they not become entangled in the politics of remuneration from the public purse. 132 I begin by stating these components in summary fashion.

133 First, as a general constitutional principle, the salaries of provincial court judges can be reduced, increased, or frozen, either as part of an overall economic measure which affects the salaries of all or some persons who are remunerated from public funds, or as part of a measure which is directed at provincial court judges as a class. However, any changes to or freezes in judicial remuneration require prior recourse to a special process, which is independent, effective, and objective, for determining judicial remuneration, to avoid the possibility of, or the appearance of, political interference through economic manipulation. What judicial independence requires is an independent body, along the lines of the bodies that exist in many provinces and at the federal level to set or recommend the levels of judicial remuneration. Those bodies are often referred to as commissions, and for the sake of convenience, we will refer to the independent body required by s. 11(d) as a commission as well. Governments are constitutionally bound to go through the commission process. The recommendations of the commission would not be binding on the executive or the legislature. Nevertheless, though those recommendations are non-binding, they should not be set aside lightly, and, if the executive or the legislature chooses to depart from them, it has to justify its decision -- if need be, in a court of law. As I explain below, when governments propose to single out judges as a class for a pay reduction, the burden of justification will be heavy. 125

134 Second, under no circumstances is it permissible for the judiciary -- not only collectively through representative organizations, but also as individuals -- to engage in negotiations over remuneration with the executive or representatives of the legislature. Any such negotiations would be fundamentally at odds with judicial independence. As I explain below, salary negotiations are indelibly political, because remuneration from the public purse is an inherently political issue. Moreover, negotiations would undermine the appearance of judicial independence, because the Crown is almost always a party to criminal prosecutions before provincial courts, and because salary negotiations engender a set of expectations about the behaviour of parties to those negotiations which are inimical to judicial independence. When I refer to negotiations, I utilize that term as it is traditionally understood in the labour relations context. Negotiations over remuneration and benefits, in colloquial terms, are a form of "horse-trading". The prohibition on negotiations therefore does not preclude expressions of concern or representations by chief justices and chief judges, and organizations that represent judges, to governments regarding the adequacy of judicial remuneration. 135 Third, and finally, any reductions to judicial remuneration, including de facto reductions through the erosion of judicial salaries by inflation, cannot take those salaries below a basic minimum level of remuneration which is required for the office of a judge. Public confidence in the independence of the judiciary would be undermined if judges were paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation, as is witnessed in many countries. [....]

(b)

The Link Between the Components of Institutional or Collective Financial Security and the Separation of Powers

138 These different components of the institutional financial security of the courts inhere, in my view, in a fundamental principle of the Canadian Constitution, the separation of powers. As I discussed above, the institutional independence of the courts is inextricably bound up with the separation of powers, because in order to guarantee that the courts can protect the Constitution, they must be protected by a set of objective guarantees against intrusions by the executive and legislative branches of government. 139 The separation of powers requires, at the very least, that some functions must be exclusively reserved to particular bodies: see Cooper, supra, at para. 13. However, there is also another aspect of the separation of powers -- the notion that the principle requires that the different branches of government only interact, as much as possible, in particular ways. In other words, the relationships between the different branches of government should have a particular character. For example, there is a hierarchical relationship between the executive and the legislature, whereby the executive must execute and implement the policies which have been enacted by the legislature in statutory form: see Cooper, supra, at paras. 23 and 24. In a system of responsible government, once legislatures have

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made political decisions and embodied those decisions in law, it is the constitutional duty of the executive to implement those choices. 140 What is at issue here is the character of the relationships between the legislature and the executive on the one hand, and the judiciary on the other. These relationships should be depoliticized. When I say that those relationships are depoliticized, I do not mean to deny that they are political in the sense that court decisions (both constitutional and non-constitutional) often have political implications, and that the statutes which courts adjudicate upon emerge from the political process. What I mean instead is the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely, that members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice. 141 To be sure, the depoliticization of the relationships between the legislature and the executive on the one hand, and the judiciary on the other, is largely governed by convention. And as I said in Cooper, supra, at para. 22, the conventions of the British Constitution do not have the force of law in Canada: Reference re Resolution to Amend the Constitution, supra. However, to my mind, the depoliticization of these relationships is so fundamental to the separation of powers, and hence to the Canadian Constitution, that the provisions of the Constitution, such as s. 11(d) of the Charter, must be interpreted in such a manner as to protect this principle. 142 The depoliticized relationships I have been describing create difficult problems when it comes to judicial remuneration. On the one hand, remuneration from the public purse is an inherently political concern, in the sense that it implicates general public policy. Even the most casual observer of current affairs can attest to this. For example, the salary reductions for the judges in these appeals were usually part of a general salary reduction for all persons paid from the public purse designed to implement a goal of government policy, deficit reduction. The decision to reduce a government deficit, of course, is an inherently political decision. In turn, these salary cuts were often opposed by public sector unions who questioned the underlying goal of deficit reduction itself. The political nature of the salary reductions at issue here is underlined by the fact that they were achieved through legislation, not collective bargaining and contract negotiations. 143 On the other hand, the fact remains that judges, although they must ultimately be paid from public monies, are not civil servants. Civil servants are part of the executive; judges, by definition, are independent of the executive. The three core characteristics of judicial independence -- security of tenure, financial security, and administrative independence -- are a reflection of that fundamental distinction, because they provide a range of protections to members of the judiciary to which civil servants are not constitutionally entitled. [....]

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E.

Application of Legal Principles

[Note: The following summary is taken from the headnote in the case prepared by the Court:] Prince Edward Island The salary reduction imposed by s. 3(3) of the Provincial Court Act, as amended by s. 10 of the Public Sector Pay Reduction Act, was unconstitutional since it was made by the legislature without recourse to an independent, objective and effective process for determining judicial remuneration. In fact, no such body exists in P.E.I. However, if in the future, after P.E.I. establishes a salary commission, that commission were to issue a report with recommendations which the legislature declined to follow, a salary reduction such as the impugned one would probably be prima facie rational, and hence justified, because it would be part of an overall economic measure which reduces the salaries of all persons who are remunerated by public funds. Since the province has made no submissions on the absence of an independent, effective and objective process to determine judicial salaries, the violation of s. 11(d) is not justified under s. 1 of the Charter. Sections 12(2) and 13 of the Provincial Court Act, which confer a discretion on the Lieutenant Governor in Council to grant leaves of absence due to illness and sabbatical leaves, do not affect the individual financial security of a judge. Discretionary benefits do not undermine judicial independence. The location of the Provincial Court's offices in the same building as certain departments which are part of the executive, including the Crown Attorneys' offices, does not infringe the administrative independence of the Provincial Court because, despite the physical proximity, the court's offices are separate and apart from the other offices in the building. As well, the fact that the Provincial Court judges do not administer their own budget does not violate s. 11(d). This matter does not fall within the scope of administrative independence, because it does not bear directly and immediately on the exercise of the judicial function. For the same reason, the Attorney General's decision both to decline to fund and to oppose an application to fund legal counsel for the Chief Judge and judges of the Provincial Court as interveners in a court case did not violate the administrative independence of the court. The designation of a place of residence of a particular Provincial Court judge, pursuant to s. 4 of the Provincial Court Act, does not undermine the administrative independence of the judiciary. Upon the appointment of a judge to the Provincial Court, it is necessary that he or she be assigned to a particular area. Furthermore, the stipulation that the residence of a sitting judge only be changed with that judge's consent is a sufficient protection against executive interference. Finally, s. 17 of the Provincial Court Act, which authorizes the Lieutenant Governor in Council to make regulations respecting the duties and powers of the Chief Judge (s. 17(b)) and respecting rules of court (s. 17(c)), must be read subject to s. 4(1) of that Act, which confers broad administrative powers on the Chief Judge, including the assignment of judges, sittings of the court and court lists, the allocation of courtrooms, and the direction of administrative staff carrying out these functions. Section 4(1) therefore vests with the Provincial Court, in the person of the Chief Judge, control over decisions which 128

touch on its administrative independence. In light of the broad provisions of s. 4(1), s. 17 does not undermine the administrative independence of the court. Alberta Section 13(1)(a) of the Provincial Court Judges Act, which confers the power to "designate the place at which a judge shall have his residence", and s. 13(1)(b), which confers the power to "designate the day or days on which the Court shall hold sittings", are unconstitutional because both provisions confer powers on the Attorney General to make decisions which infringe upon the administrative independence of the Provincial Court. Section 13(1)(a)'s constitutional defect lies in the fact that it is not limited to the initial appointment of judges. Section 13(1)(b) violates s. 11(d) because the administrative independence of the judiciary encompasses, inter alia, "sittings of the court". Manitoba The salary reduction imposed by s. 9(1) of Bill 22 violated s. 11(d) of the Charter, because the government failed to respect the independent, effective and objective process--the JCC--for setting judicial remuneration which was already operating in Manitoba. Moreover, at least for the 199495 financial year, s. 9(1)(b) effectively precluded the future involvement of the JCC. Although Manitoba may have faced serious economic difficulties in the time period preceding the enactment of Bill 22, the evidence does not establish that it faced sufficiently dire and exceptional circumstances to warrant the suspension of the involvement of the JCC. Since Manitoba has offered no justification for the circumvention of the JCC before imposing the salary reduction on Provincial Court judges, the effective suspension of the operation of the JCC is not justified under s. 1 of the Charter. The Manitoba government also violated the judicial independence of the Provincial Court by attempting to engage in salary negotiations with the Provincial Judges Association. The purpose of these negotiations was to set salaries without recourse to the JCC. Moreover, when the judges would not grant the government an assurance that they would not launch a constitutional challenge to Bill 22, the government threatened to abandon a joint recommendation. The surrounding circumstances indicate that the Association was not a willing participant and was effectively coerced into these negotiations. No matter how one-sided, however, it was improper for government and the judiciary to engage in salary negotiations. The expectations of give and take, and of threat and counter-threat, are fundamentally at odds with judicial independence. It raises the prospect that the courts will be perceived as having altered the manner in which they adjudicate cases, and the extent to which they will protect and enforce the Constitution, as part of the process of securing the level of remuneration they consider appropriate. The attempted negotiations between the government and the judiciary were not authorized by a legal rule and thus are incapable of being justified under s. 1 of the Charter because they are not prescribed by law.

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Finally, the Manitoba government infringed the administrative independence of the Provincial Court by closing it on a number of days. It was the executive, in ordering the withdrawal of court staff, pursuant to s. 4 of Bill 22, several days before the Chief Judge announced the closing of the Provincial Court, that shut down the court. Section 4 is therefore unconstitutional. Even if the trial judge had been right to conclude that the Chief Judge retained control over the decision to close the Provincial Court throughout, there would nevertheless have been a violation of s. 11(d), because the Chief Judge would have exceeded her constitutional authority when she made that decision. Control over the sittings of the court falls within the administrative independence of the judiciary. Administrative independence is a characteristic of judicial independence which generally has a collective or institutional dimension. Although certain decisions may be exercised on behalf of the judiciary by the Chief Judge, important decisions regarding administrative independence cannot be made by the Chief Judge alone. The decision to close the Provincial Court was precisely this kind of decision. Manitoba has attempted to justify the closure of the Provincial Court solely on the basis of financial considerations, and for that reason, the closure of the court cannot be justified under s. 1. Although reading down s. 4 of Bill 22 to the extent strictly necessary would be the normal solution in a case like this, this is difficult in relation to violations of s. 11(d) because, unlike other Charter provisions, s. 11(d) requires that judicial independence be secured by "objective conditions or guarantees". To read down s. 4 to its proper scope would in effect amount to reading in those objective conditions and guarantees. This would result in a fundamental rewriting of the legislation. If the Court, however, were to strike down s. 4 in its entirety, the effect would be to prevent its application to all those employees of the Government of Manitoba who were required to take leave without pay. The best solution in the circumstances is to read s. 4(1) as exempting provincial court staff from it. This is the remedy that best upholds the Charter values involved and will occasion the lesser intrusion on the role of the legislature. [Lamer C.J.C. then added the following remarks:] 287 Given the length and complexity of these reasons, I summarize the major principles governing the collective or institutional dimension of financial security:

1.

It is obvious to us that governments are free to reduce, increase, or freeze the salaries of provincial court judges, either as part of an overall economic measure which affects the salaries of all or some persons who are remunerated from public funds, or as part of a measure which is directed at provincial court judges as a class. Provinces are under a constitutional obligation to establish bodies which are independent, effective, and objective, according to the criteria that I have laid down in these reasons. Any changes to or freezes in judicial remuneration require prior recourse to the independent body, which will review the proposed reduction or increase to, or freeze in, judicial remuneration. Any changes to or freezes in judicial remuneration made without prior recourse to the independent body are unconstitutional.

2.

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3.

As well, in order to guard against the possibility that government inaction could be used as a means of economic manipulation, by allowing judges' real wages to fall because of inflation, and in order to protect against the possibility that judicial salaries will fall below the adequate minimum guaranteed by judicial independence, the commission must convene if a fixed period of time (e.g. three to five years) has elapsed since its last report, in order to consider the adequacy of judges' salaries in light of the cost of living and other relevant factors. The recommendations of the independent body are non-binding. However, if the executive or legislature chooses to depart from those recommendations, it has to justify its decision according to a standard of simple rationality -- if need be, in a court of law. Under no circumstances is it permissible for the judiciary to engage in negotiations over remuneration with the executive or representatives of the legislature. However, that does not preclude chief justices or judges, or bodies representing judges, from expressing concerns or making representations to governments regarding judicial remuneration. [....]

4.

5.

The following are the reasons delivered by LA FOREST J. (dissenting in part):-[La Forest J. expressed substantial agreement with much of the judgment of Chief Justice Lamer, though he did not agree that section ll(d) of the Charter requires provinces to establish judicial compensation commissions. His more serious disagreement concerned the discussion of the obligations arising from the Preamble to the Constitution Act 1867. He noted that there had been only brief reference to these issues by the parties to the litigation, and he felt that the Court should not decide these issues without full argument. He also expressed doubts about the reasoning of Lamer C.J. regarding these issues. saying:] 314 .... The ability to nullify the laws of democratically elected representatives derives its legitimacy from a super-legislative source: the text of the Constitution. This foundational document (in Canada, a series of documents) expresses the desire of the people to limit the power of legislatures in certain specified ways. Because our Constitution is entrenched, those limitations cannot be changed by recourse to the usual democratic process. They are not cast in stone, however, and can be modified in accordance with a further expression of democratic will: constitutional amendment. 315 Judicial review, therefore, is politically legitimate only insofar as it involves the interpretation of an authoritative constitutional instrument. In this sense, it is akin to statutory interpretation. In each case, the court's role is to divine the intent or purpose of the text as it has been expressed by the people through the mechanism of the democratic process. Of course, many (but not all) constitutional

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provisions are cast in broad and abstract language. Courts have the often arduous task of explicating the effect of this language in a myriad of factual circumstances, many of which may not have been contemplated by the framers of the Constitution. While there are inevitable disputes about the manner in which courts should perform this duty, for example by according more or less deference to legislative decisions, there is general agreement that the task itself is legitimate. 316 This legitimacy is imperiled, however, when courts attempt to limit the power of legislatures without recourse to express textual authority. From time to time, members of this Court have suggested that our Constitution comprehends implied rights that circumscribe legislative competence. On the theory that the efficacy of parliamentary democracy requires free political expression, it has been asserted that the curtailment of such expression is ultra vires both provincial legislatures and the federal Parliament: [citations omitted]. [....] 318 Whatever attraction this theory may hold, and I do not wish to be understood as either endorsing or rejecting it, it is clear in my view that it may not be used to justify the notion that the preamble to the Constitution Act, 1867 contains implicit protection for judicial independence.... 319 This brings us back to the central point: to the extent that courts in Canada have the power to enforce the principle of judicial independence, this power derives from the structure of Canadian, and not British, constitutionalism. Our Constitution expressly contemplates both the power of judicial review (in s. 52 of the Constitution Act, 1982) and guarantees of judicial independence (in ss. 96-100 of the Constitution Act, 1867 and s. 11(d) of the Charter). While these provisions have been interpreted to provide guarantees of independence that are not immediately manifest in their language, this has been accomplished through the usual mechanisms of constitutional interpretation, not through recourse to the preamble. The legitimacy of this interpretive exercise stems from its grounding in an expression of democratic will, not from a dubious theory of an implicit constitutional structure. The express provisions of the Constitution are not, as the Chief Justice contends, "elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867" (para. 107). On the contrary, they are the Constitution. To assert otherwise is to subvert the democratic foundation of judicial review. [....]

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Chapter 3: Validity

This long chapter contains cases concerning the legislative validity of legislation. The term legislation includes statutes, parts of statutes, single sections of statutes and regulations enacted pursuant to statutes. The validity of the legislation depends on the judicial assessment of whether the legislation falls within one or more of the matters allocated to the enacting legislature by the Constitution Act, 1867. The relevant constitutional provisions in the 1867 Act are s. 91, which contains the federal list of matters, and s. 92, which contains the provincial list. The issue of validity depends on two sub-issues. First the court must interpret the subsection or head of power relied on by the enacting legislature. Second, the court must characterize the legislation which is in issue and decide what its true matter is. The judicial interpretation, and thus the scope, of each of the heads of powers can change with each decision. Legislation which is held to be invalid is ordinarily declared to be ultra vires or void retroactively. The logic is that the statute never came into existence if the legislature had no jurisdiction to enact it. Edwards v. The Attorney General, [1930] AC 124 (PC) sets out the prevailing Canadian judicial approach to interpreting the Constitution Act 1867. The same approach has been carried forward to the Constitution Act 1982. The cases selected deal with a limited number of the heads of power in ss. 91 and 92 but they are the most frequently employed and invoked heads of power.

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3.1 ­ Interpretation

Edwards v. Attorney General Canada, 1929

[1930] A.C. 124 Judicial Committee of the Privy Council,London, England Lord Sankey L.C., Lord Darling, Lord Merrivale, Lord Tomlin, and Sir Lancelot Sanderson FROM THE SUPREME COURT OF CANADA The judgment of their Lordships was delivered by 1 LORD SANKEY L.C.:-- By s. 24 of the British North America Act, 1867, it is provided that "The Governor General shall from time to time, in the Queen's name, by instrument under the Great Seal of Canada, summon qualified persons to the Senate; and, subject to the provisions of this Act, every person so summoned shall become and be a member of the Senate and a senator." 2 The question at issue in this appeal is whether the words "qualified persons" in that section include a woman, and consequently whether women are eligible to be summoned to and become members of the Senate of Canada. 3 Of the appellants, Henrietta Muir Edwards is the Vice-President for the Province of Alberta of the National Council of Women for Canada; Nellie L. McClung and Louise C. McKinney were for several years members of the Legislative Assembly of the said Province; Emily F. Murphy is a police magistrate in and for the said Province; and Irene Parlby is a member of the Legislative Assembly of the said Province and a member of the Executive Council thereof. 4 On August 29, 1927, the appellants petitioned the Governor General in Council to refer to the Supreme Court certain questions touching the powers of the Governor General to summon female persons to the Senate, and upon October 19, 1927, the Governor General in Council referred to the Supreme Court the aforesaid question. The case was heard before Anglin C.J., Duff, Mignault, Lamont, and Smith JJ., and upon April 24, 1928, the Court answered the question in the negative; the question being understood to be "Are women eligible for appointment to the Senate of Canada." 5 The Chief Justice, whose judgment was concurred in by Lamont and Smith JJ., and substantially by Mignault J., came to this conclusion upon broad lines mainly because of the common law disability of women to hold public office and from a consideration of various cases which had been decided under different statutes as to their right to vote for a member of Parliament. 6 Duff J., on the other hand, did not agree with this view. He came to the conclusion that women are not eligible for appointment to the Senate upon the narrower ground that upon a close examination of 134

the British North America Act, 1867, the word "persons" in s. 24 is restricted to members of the male sex. The result therefore of the decision was that the Supreme Court was unanimously of opinion that the word "persons" did not include female persons, and that women are not eligible to be summoned to the Senate. 7 Their Lordships are of opinion that the word "persons" in s. 24 does include women, and that women are eligible to be summoned to and become members of the Senate of Canada. 8 In coming to a determination as to the meaning of a particular word in a particular Act of Parliament it is permissible to consider two points -- namely: (i.) The external evidence derived from extraneous circumstances such as previous legislation and decided cases. (ii.) The internal evidence derived from the Act itself. As the learned counsel on both sides have made great researches and invited their Lordships to consider the legal position of women from the earliest times, in justice to their argument they propose to do so and accordingly turn to the first of the above points -- namely: (i.) The external evidence derived from extraneous circumstances. 9 The exclusion of women from all public offices is a relic of days more barbarous than ours, but it must be remembered that the necessity of the times often forced on man customs which in later years were not necessary. Such exclusion is probably due to the fact that the deliberative assemblies of the early tribes were attended by men under arms, and women did not bear arms. "Nihil autem neque publicae neque privatae rei, nisi armati, agunt": Tac. Germ., c. 13. Yet the tribes did not despise the advice of women. "Inesse quin etiam sanctum et providum putant, nec aut consilia earum aspernantura ut responsa neglegunt": Germ., c. 8. The likelihood of attack rendered such a proceeding unavoidable, and after all what is necessary at any period is a question for the times upon which opinion grounded on experience may move one way or another in different circumstances. This exclusion of women found its way into the opinions of the Roman jurists, Ulpian (A.D. 211) laying it down. "Feminae ab omnibus officiis civilibus vel publicis remotae sunt": Dig. 1.16.195. The barbarian tribes who settled in the Roman Empire, and were exposed to constant dangers, naturally preserved and continued the tradition. 10 In England no woman under the degree of a Queen or a Regent, married or unmarried, could take part in the government of the State. A woman was under a legal incapacity to be elected to serve in Parliament and even if a peeress in her own right she was not, nor is, entitled as an incident of peerage to receive a writ of summons to the House of Lords. 11 Various authorities are cited in the recent case of Viscountess Rhondda's Claim, [1922] 2 A.C. 339, where it was held that a woman was not entitled to sit in the House of Lords. Women were, moreover, subject to a legal incapacity to vote at the election of members of Parliament: Coke, 4 Inst., p. 5; Chorlton v. Lings, (1868) L.R. 4 C.P. 374; or of town councillor: Reg. v. Harrald, (1872) L.R. 7 Q.B. 361; or to be elected members of a County Council: Beresford-Hope v. Sandhurst, (1889) 23 Q.B.D. 79. They were excluded by the common law from taking part in the administration of justice either as judges or

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as jurors, with the single exception of inquiries by a jury of matrons upon a suggestion of pregnancy: Coke, 2 Inst. 119, 3 Bl. Comm. 362. Other instances are referred to in the learned judgment of Willes J. in Chorlton v. Lings, (1868) L.R. 4 C.P. 374. 12 No doubt in the course of centuries there may be found cases of exceptional women and exceptional instances, but as Lord Esher M.R. said in De Souza v. Cobden, [1891] 1 Q.B. 687, 691: "By the common law of England women are not in general deemed capable of exercising public functions, though there are certain exceptional cases where a well recognised custom to the contrary has become established." An instance may be referred to in the case of women being entitled to act as churchwardens and as sextons, the latter being put upon the ground that a sexton's duty was in the nature of a private trust: Olive v. Ingram, (1738) 7 Mod. 263. Also of being appointed as overseer of the poor: Rex v. Stubbs, (1788) 2 T.R. 395. The tradition existed till quite modern times: see Bebb v. Law Society, (1914) 1 Ch. 286, where it was held by the Court of Appeal that by inveterate usage women were under a disability by reason of their sex to become attorneys or solicitors. 13 The passing of Lord Brougham's Act in 1850 does not appear to have greatly affected the current of authority. Sect. 4 provided that in all acts words importing the masculine gender shall be deemed and taken to include female unless the contrary as to gender is expressly provided. 14 The application and purview of that Act came up for consideration in Chorlton v. Lings, (1868) L.R. 4 C.P. 374, where the Court of Common Pleas was required to construe a statute passed in 1861, which conferred the parliamentary franchise on every man possessing certain qualifications and registered as a voter. The chief question discussed was whether by virtue of Lord Brougham's Act the words "every man" included women. Bovill C.J., having regard to the subject-matter of the statute and its general scope and language and to the important and striking nature of the departure from the common law involved in extending the franchise to women, declined to accept the view that Parliament had made that change by using the term "man" and held that the word was intentionally used expressly to designate the male sex. Willes J. said: "It is not easy to conceive that the framer of that Act, when he used the word 'expressly,' meant to suggest that what is necessarily or properly implied by language is not expressed by such language." 15 Great reliance was placed by the respondents to this appeal upon that decision, but in our view it is clearly distinguishable. The case was decided on the language of the Representation of the People Act, 1867, which provided that "every man" with certain qualifications and "not subject to any legal incapacity" should be entitled to be registered as a voter. Legal incapacity was not defined by the Act, and consequently reference was necessary to the common law disabilities of women. 16 A similar result was reached in the case of Nairn v. University of St. Andrews, [1909] A.C. 147, where it was held under s. 27 of the Representation of the People (Scotland) Act, 1868, which provided that every person whose name is for the time being on the register of the general council of such university shall, being of full age and not subject to any legal incapacity, be entitled to vote in the

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election of a member to serve in any future Parliament for such university, that the word "person" did not include women, but the Lord Chancellor, Lord Loreburn, referred to the position of women at common law, and pointed out that they were subject to a legal incapacity. Both in this case and in the case of the Viscountess Rhondda the various judgments emphasize the fact that the legislature in dealing with the matter cannot be taken to have departed from the usage of centuries, or to have employed loose and ambiguous words to carry out a so momentous and fundamental change. 17 The judgment of the Chief Justice in the Supreme Court of Canada refers to and relies upon these cases, but their Lordships think that there is great force in the view taken by Duff J. with regard to them, when he says that s. 24 of the British North America Act, 1867, must not be treated as an independent enactment. The Senate, he proceeds, is part of a parliamentary system, and in order to test the contention based upon this principle that women are excluded from participating in working the Senate or any other institution set up by the Act one is bound to consider the Act as a whole and its bearings on this subject of the exclusion of women from public office and place. 18 Their Lordships now turn for a moment to the special history of the development of Canadian legislature as bearing upon the matter under discussion. 19 The Province of Canada was formed by the union under the Act of Union, 1840, of the two Provinces of Upper and Lower Canada respectively, into which the Province of Quebec as originally created by the royal proclamation of October 7, 1763, and enlarged by the Quebec Act, 1774, had been divided under the Constitutional Act of 1791. In the Province of Quebec from its first establishment in 1763 until 1774, the Government was carried on by the Governor and the Council, composed of four named persons and eight other "persons" to be chosen by the Governor from amongst "the most considerable of the inhabitants or of other persons of property in Our said Province." 20 The Quebec Act of 1774 entrusted the government of the Province to a Governor and Legislative Council of such "persons" resident there, not exceeding twenty-three, nor less than seventeen, as His Majesty shall be pleased to appoint. 21 The Constitutional Act of 1791 upon the division of the Province of Quebec into two separate Provinces to be called the Provinces of Upper and Lower Canada established for each Province a legislature composed of the three estates of Governor, Legislative Council and Assembly empowered to make laws for the peace, order and good government of the Provinces. The Legislative Council was to consist of a sufficient number of discreet and proper "persons" not less than seven for Upper Canada and fifteen for Lower Canada. 22 Under the Act of Union, 1840, these two Provinces were reunited so as to constitute one Province under the name of the Province of Canada, and the Legislative Council was to be composed of such "persons" being not fewer than twenty as Her Majesty shall think fit.

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23 In 1865 the Canadian legislature under the authority of the Imperial Act passed an Act which altered the constitution of the Legislative Council by rendering the same elective. 24 The new constitution as thus altered continued till the Union of 1867.

25 It will be noted that in all the Acts the word "persons" is used in respect of those to be elected members of the Legislative Council, and there are no adjectival phrases so qualifying the word as to make it necessarily refer to males only. 26 In Quebec, just as in England, there can be found cases of exceptional women and exceptional instances. For example, in certain districts -- namely, at Trois Rivieres in 1820 -- women apparently voted, while in 1828 the returning officer in the constituency of the Upper Town of Quebec refused to receive the votes of women. 27 In 1834 the Canadian Parliament passed an Act of Parliament excluding women from the vote, but two years later the Act was disallowed, because the Imperial Government objected to another section in it. 28 The matter, however, was not left there, and in 1849 by a statute of the Province of Canada (12 Vict. c. 27), s. 46, it was declared and enacted that no woman is or shall be entitled to vote at any election, whether for any county or riding, city or town, of members to represent the people of this Province in the Legislative Assembly thereof. 29 The development of the maritime Provinces proceeded on rather different lines. From 1719 to 1758 the Provincial Government of Nova Scotia consisted of a Governor and a Council, which was both a legislative and an executive body composed of such fitting and discreet "persons," not exceeding twelve in number, as the Governor should nominate. A general assembly for the Province was called in 1757, and thereafter the legislature consisted of a Governor and Council and General Assembly. In 1838 the executive authority was separated from the Legislative Council, which became a distinct legislative branch only. 30 In 1784 a part of the territory of the Province of Nova Scotia was erected into a separate Province to be called New Brunswick, and a separate government was established for the Province, consisting of a Governor and Council composed of certain named persons and other persons "to be chosen by you from amongst the most considerable of the inhabitants of or persons of property," but required to be men of good life and of ability suitable to their employment. In 1832 the executive authority was separated and made distinct from the Legislative Council. In the Province of Nova Scotia there was in the early Acts governing the election of members of the General Assembly no express disqualification of women from voting, but by the revised statutes of Nova Scotia (second series) in 1859 the exercise of the franchise was confined to male subjects over twenty-one years of age, and a candidate for election was required to have the qualification which would enable him to vote.

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31 In the Province of New Brunswick by the Provincial Act (11 Vict. c. 65), s. 17, the Parliamentary franchise was confined to male persons of the full age of twenty-one years who possessed certain property qualifications. 32 It must, however, be pointed out that a careful examination has been made by the assistant keeper of public records of Canada of the list containing the names of the Executive and Legislative Councils and Houses of Assembly in Quebec (including those of Upper and Lower Canada), of the Province of Canada, of the Province of Nova Scotia, and of the Province of New Brunswick down to 1867, and on none of the lists did he find the name of a person of the female sex. 33 Such briefly is the history and such are the decisions in reference to the matter under discussion.

34 No doubt in any code where women were expressly excluded from public office the problem would present no difficulty, but where instead of such exclusion those entitled to be summoned to or placed in public office are described under the word "person" different considerations arise. 35 The word is ambiguous, and in its original meaning would undoubtedly embrace members of either sex. On the other hand, supposing in an Act of Parliament several centuries ago it had been enacted that any person should be entitled to be elected to a particular office it would have been understood that the word only referred to males, but the cause of this was not because the word "person" could not include females but because at common law a woman was incapable of serving a public office. The fact that no woman had served or has claimed to serve such an office is not of great weight when it is remembered that custom would have prevented the claim being made or the point being contested. 36 Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared. 37 The appeal to history therefore in this particular matter is not conclusive.

38 As far back as Stradling v. Morgan, (1559) 1 Plow. 199, it was laid down that extraneous circumstances may be admitted as an aid to the interpretation of a statute, and in Herron v. Rathmines and Rathgar Improvement Commissioners, [1892] A.C. 498, 502, Lord Halsbury L.C. said: "The subject matter with which the legislature was dealing, and the facts existing at the time with respect to which the legislature was legislating, are legitimate topics to consider in ascertaining what was the object and purpose of the legislature in passing the Act," but the argument must not be pushed too far, and their Lordships are disposed to agree with Farwell L.J. in Rex v. West Riding of Yorkshire County Council, [1906] 2 K.B. 676, 716, "although it may, perhaps, be legitimate to call history in aid to show what facts existed to bring about a statute, the inferences to be drawn therefrom are extremely slight": see Craies, Statute Law, 3rd ed., p. 118.

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39 Over and above that, their Lordships do not think it right to apply rigidly to Canada of today the decisions and the reasons therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development. Referring therefore to the judgment of the Chief Justice and those who agreed with him, their Lordships think that the appeal to Roman law and to early English decisions is not of itself a secure foundation on which to build the interpretation of the British North America Act of 1867. 40 Their Lordships fully appreciate the learned arguments set out in his judgment, but prefer, on this part of the case, to adopt the reasonings of Duff J., who did not agree with the other members of the Court, for reasons which appear to their Lordships to be strong and cogent. As he says: "Nor am I convinced that the reasoning based upon the 'extraneous circumstances' we are asked to consider (the disabilities of women under the common law and the law and practice of Parliament in respect of appointment to public place or office) establishes a rule of interpretation for the British North America Act, by which the construction of powers, legislative and executive, bestowed in general terms is controlled by a presumptive exclusion of women from participating in the working of the institutions set up by the Act." 41 Their Lordships now turn to the second point -- namely, (ii.) the internal evidence derived from the Act itself. 42 Before discussing the various sections they think it necessary to refer to the circumstances which led up to the passing of the Act. 43 The communities included within the Britannic system embrace countries and peoples in every stage of social, political and economic development and undergoing a continuous process of evolution. His Majesty the King in Council is the final Court of Appeal from all these communities, and this Board must take great care therefore not to interpret legislation meant to apply to one community by a rigid adherence to the customs and traditions of another. Canada had its difficulties both at home and with the mother country, but soon discovered that union was strength. Delegates from the three maritime Provinces met in Charlottetown on September 1, 1864, to discuss proposals for a maritime union. A delegation from the coalition government of that day proceeded to Charlottetown and placed before the maritime delegates their schemes for a union embracing the Canadian Provinces. As a result the Quebec conference assembled on October 10, continued in session till October 28, and framed a number of resolutions. These resolutions as revised by the delegates from the different Provinces in London in 1866 were based upon a consideration of the rights of others and expressed in a compromise which will remain a lasting monument to the political genius of Canadian statesmen. Upon those resolutions the British North America Act of 1867 was framed and passed by the Imperial legislature. The Quebec resolutions dealing with the Legislative Council -- namely, Nos. 6-24 -- even if their Lordships are entitled to look at them, do not shed any light on the subject under discussion. They refer generally to the "members" of the Legislative Council.

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44 The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. "Like all written constitutions it has been subject to development through usage and convention": Canadian Constitutional Studies, Sir Robert Borden (1922), p. 55. 45 Their Lordships do not conceive it to be the duty of this Board -- it is certainly not their desire -- to cut down the provisions of the Act by a narrow and technical construction but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs. "The Privy Council, indeed, has laid down that Courts of law must treat the provisions of the British North America Act by the same methods of construction and exposition which they apply to other statutes. But there are statutes and statutes; and the strict construction deemed proper in the case, for example, of a penal or taxing statute or one passed to regulate the affairs of an English parish, would be often subversive of Parliament's real intent if applied to an Act passed to ensure the peace, order and good government of a British Colony": see Clement's Canadian Constitution, 3rd ed., p. 347. 46 The learned author of that treatise quotes from the argument of Mr. Mowat and Mr. Edward Blake before the Privy Council in St. Catherine's Milling and Lumber Co. v. The Queen, (1888) 14 App. Cas. 46, 50: "That Act should be on all occasions interpreted in a large, liberal and comprehensive spirit, considering the magnitude of the subjects with which it purports to deal in very few words." With that their Lordships agree, but as was said by the Lord Chancellor in Brophy v. Attorney General of Manitoba, [1895] A.C. 202, 216, the question is not what may be supposed to have been intended, but what has been said. 47 It must be remembered, too, that their Lordships are not here considering the question of the legislative competence either of the Dominion or its Provinces which arise under ss. 91 and 92 of the Act providing for the distribution of legislative powers and assigning to the Dominion and its Provinces their respective spheres of Government. Their Lordships are concerned with the interpretation of an Imperial Act, but an Imperial Act which creates a constitution for a new country. Nor are their Lordships deciding any question as to the rights of women but only a question as to their eligibility for a particular position. No one, either male or female, has a right to be summoned to the Senate. The real point at issue is whether the Governor General has a right to summon women to the Senate. 48 The Act consists of a number of separate heads.

49 The preamble states that the Provinces of Canada, Nova Scotia and New Brunswick have expressed their desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland with a constitution similar in principle to that of the United Kingdom. 50 Head No. 2 refers to the union. 141

51 52

Head No. 3, ss. 9 to 16, to the executive power. It is in s. 11 that the word "persons," which is used repeatedly in the Act, occurs for the first time.

53 It provides that the persons who are members of the Privy Council shall be from time to time chosen and summoned by the Governor General. 54 The word "person," as above mentioned, may include members of both sexes, and to those who ask why the word should include females the obvious answer is why should it not? In these circumstances the burden is upon those who deny that the word includes women to make out their case. 55 Head No. 4 (ss. 17-20) deals first with the legislative power. Sect. 17 provides there shall be one Parliament for Canada consisting of the Queen, an upper house styled the Senate, and the House of Commons. Sects. 21-36 deal with the creation, constitution and powers of the Senate. They are the all important sections to consider in the present case, and their Lordships return to them after briefly setting out the remaining sections of the Act. 56 Sects. 37-57 deal with the creation, constitution and powers of the House of Commons with special reference to Ontario, Quebec, Nova Scotia and New Brunswick, which were the first Provinces to come in under the scheme, although power was given under s. 146 for other Provinces to come in, which other Provinces have availed themselves of. 57 Head No. 5 (ss. 58-90) deals with the Provincial constitutions, and defines both their executive and legislative powers; head No. 6 (ss. 91-95) deals with the distribution of legislative powers; head No. 7 (ss. 96-101) deals with the judicature; head No. 8 (ss. 102-126) deals with revenues, debts, assets and taxation; head No. 9 (ss. 127-144) deals with miscellaneous provisions; head No. 10 (s. 145) deals with the intercolonial railway; and head No. 11 (ss. 146, 147) deals with the admission of other colonies. 58 Such being the general analysis of the Act, their Lordships turn to the special sections dealing with the Senate. 59 It will be observed that s. 21 provides that the Senate shall consist of seventy-two members, who shall be styled senators. The word "member" is not in ordinary English confined to male persons. Sect. 24 provides that the Governor General shall summon qualified persons to the Senate. 60 As already pointed out, "persons" is not confined to members of the male sex, but what effect does the adjective "qualified" before the word "persons" have? 61 In their Lordships' view it refers back to the previous section, which contains the qualifications of a senator. Sub-ss. 2 and 3 appear to have given difficulties to the Supreme Court. Sub-s. 2 provides that the qualification of a senator shall be that he shall be either a natural born subject of the Queen, 142

naturalized by an Act of Parliament of Great Britain or of one of the Provincial Legislatures before the union or of the Parliament of Canada after the union. The Chief Justice in dealing with this says that it does not include those who become subjects by marriage, a provision which one would have looked for had it been intended to include women as being eligible. 62 The attention of the Chief Justice, however, was not called to the Aliens Act, 1844 (7 & 8 Vict. c. 66), s. 16 of which provides that any woman married or who shall be married to a natural born subject or person naturalized shall be deemed and taken to be herself naturalized, and have all the rights and privileges of a natural born subject. The Chief Justice assumed that by common law a wife took her husband's nationality on marriage, but by virtue of that section any woman who marries a natural born or naturalized British subject was deemed and taken to be herself naturalized. Accordingly, s. 23, sub-s. 2, uses language apt to cover the case of those who become British subjects by marriage. 63 Their Lordships agree with Duff J. when he says: "I attach no importance to the use of the masculine personal pronoun in s. 23, and, indeed, very little importance to the provision in s. 23 with regard to nationality," and refer to s. 1 of the Interpretation Act, 1889, which in s. 1, sub-s. 2, provides that words importing the masculine gender shall include females. 64 The reasoning of the Chief Justice would compel their Lordships to hold that the word "persons" as used in s. 11 relating to the constitution of the Privy Council for Canada was limited to "male persons," with the resultant anomaly that a woman might be elected a member of the House of Commons but could not even then be summoned by the Governor General as a member of the Privy Council. 65 Sub-s. 3 of s. 23 provided that the qualification of a senator shall be that he is legally and equitably seised of a freehold for his own use and benefit of lands and tenements of a certain value. This section gave some trouble to Duff J., who says that sub-section points to the exclusion of married women, and would have been expressed in a different way if the presence of married women had been contemplated. Their Lordships think that this difficulty is removed by a consideration of the rights of a woman under the Married Women's Property Acts. A married woman can possess the property qualification required by this sub-section. Apart from statute a married woman could be equitably seized of freehold property for her own use only, and by an Act respecting certain separate rights of property of married women, consolidated statutes of Upper Canada, cap. 73, s. 1, it was provided: "Every woman who has married since May 4, 1859, or who marries after this Act takes effect, without any marriage contract or settlement, shall and may, notwithstanding her coverture, have, hold and enjoy all her real and personal property ... in as full and ample a matter as if she continued sole and unmarried ...." 66 Their Lordships do not think it possible to interpret the word "persons" by speculating whether the framer of the British North America Act purposely followed the system of Legislative Councils enacted in the Acts of 1791 and 1840 rather than that which prevailed in the maritime Province for the

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model on which the Senate was to be formed, neither do they think that either of these subsections is sufficient to rebut the presumption that the word "persons" includes women. Looking at the sections which deal with the Senate as a whole (ss. 21-36) their Lordships are unable to say that there is anything in those sections themselves upon which the Court could come to a definite conclusion that women are to be excluded from the Senate. 67 So far with regard to the sections dealing especially with the Senate -- are there any other sections in the Act which shed light upon the meaning of the word "persons"? 68 Their Lordships think that there are. For example, s. 41 refers to the qualifications and disqualifications of persons to be elected or to sit or vote as members of the House of Assembly or Legislative Assembly, and by a proviso it is said that until the Parliament of Canada otherwise provides at any election for a member of the House of Commons for the district of Algoma in addition to persons qualified by the law of the Province of Canada to vote every male British subject aged twentyone or upwards being a householder shall have a vote. This section shows a distinction between "persons" and "males." If persons excluded females it would only have been necessary to say every person who is a British subject aged twenty-one years or upwards shall have a vote. 69 Again in s. 84, referring to Ontario and Quebec, a similar proviso is found stating that every male British subject in contradistinction to "person" shall have a vote. 70 Again in s. 133 it is provided that either the English or the French language may be used by any person or in any pleadings in or issuing from any court of Canada established under this Act and in or from all of any of the courts of Quebec. The word "person" there must include females, as it can hardly have been supposed that a man might use either the English or the French language but a woman might not. 71 If Parliament had intended to limit the word "persons" in s. 24 to male persons it would surely have manifested such intention by an express limitation, as it has done in ss. 41 and 84. The fact that certain qualifications are set out in s. 23 is not an argument in favour of further limiting the class, but is an argument to the contrary, because it must be presumed that Parliament has set out in s. 23 all the qualifications deemed necessary for a senator, and it does not state that one of the qualifications is that he must be a member of the male sex. 72 Finally, with regard to s. 33, which provides that if any question arises respecting the qualifications of a senator or a vacancy in the Senate the same shall be heard and determined by the Senate that section must be supplemented by s. 1 of the Parliament of Canada Act, 1875, and by s. 4 of c. 10 of R.S. Can., and their Lordships agree with Duff J. when he says, "as yet, no concrete case has arisen to which the jurisdiction of the Senate could attach. We are asked for advice on the general question, and that, I think, we are bound to give. It has, of course, only the force of an advisory opinion. The existence of this jurisdiction of the Senate does not, I think, affect the question of substance. We must assume that the Senate would decide in accordance with the law." 144

73 The history of these sections and their interpretation in Canada is not without interest and significance. 74 From confederation to date both the Dominion Parliament and the Provincial legislatures have interpreted the word "persons" in ss. 41 and 84 of the British North America Act as including female persons, and have legislated either for the inclusion or exclusion of women from the class of persons entitled to vote and to sit in the Parliament and Legislature respectively, and this interpretation has never been questioned. 75 From confederation up to 1916 women were excluded from the class of persons entitled to vote in both Federal and Provincial elections. From 1916 to 1922 various Dominion and Provincial Acts were passed to admit women to the franchise and to the right to sit as members in both Dominion and Provincial legislative bodies. At the present time women are entitled to vote and to be candidates: (1.) At all Dominion elections on the same basis as men. (2.) At all Provincial elections save in the Province of Quebec. 76 From the date of the enactment of the Interpretation Acts in the Province of Canada, Nova Scotia and New Brunswick prior to confederation and in the Dominion of Canada since confederation and until the franchise was extended, women have been excluded by express enactment from the right to vote. 77 Neither is it without interest to record that when upon May 20, 1867, the Representation of the People Bill came before a Committee of the House of Commons, John Stuart Mill moved an amendment to secure women's suffrage, and the amendment proposed was to leave out the word "man" in order to insert the word "person" instead thereof: see Hansard, 3rd series, vol. clxxxvii., col. 817. 78 A heavy burden lies on an appellant who seeks to set aside a unanimous judgment of the Supreme Court, and this Board will only set aside such a decision after convincing argument and anxious consideration, but having regard: (1.) To the object of the Act -- namely, to provide a constitution for Canada, a responsible and developing State; (2.) that the word "person" is ambiguous, and may include members of either sex; (3.) that there are sections in the Act above referred to which show that in some cases the word "person" must include females; (4.) that in some sections the words "male persons" are expressly used when it is desired to confine the matter in issue to males; and (5.) to the provisions of the Interpretation Act; their Lordships have come to the conclusion that the word "persons" in s. 24 includes members both of the male and female sex, and that, therefore, the question propounded by the Governor General should be answered in the affirmative, and that women are eligible to be summoned to and become members of the Senate of Canada, and they will humbly advise His Majesty accordingly.

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3.2 ­ Peace Order and Good Government

Russell v. The Queen, 1882

[1882] J.C.J. No. 1 Judicial Committee of the Privy Council, London, England Sir Barnes Peacock, Sir Montague E. Smith, Sir Robert P. Collier, Sir James Hannen and Sir Richard Couch FROM THE SUPREME COURT OF THE PROVINCE OF NEW BRUNSWICK The judgment of their Lordships was delivered by 1 SIR MONTAGUE E. SMITH:-- This is an appeal from an order of the Supreme Court of the Province of New Brunswick, discharging a rule nisi which had been granted on the application of the Appellant for a certiorari to remove a conviction made by the police magistrate of the city of Frederickton against him, for unlawfully selling intoxicating liquors, contrary to the provisions of the Canada Temperance Act, 1878. 2 No question has been raised as to the sufficiency of the conviction, supposing the abovementioned statute is a valid legislative Act of the Parliament of Canada. The only objection made to the conviction in the Supreme Court of New Brunswick, and in the appeal to Her Majesty in Council, is that, having regard to the provisions of the British North America Act, 1867, relating to the distribution of legislative powers, it was not competent for the Parliament of Canada to pass the Act in question. 3 The Supreme Court of New Brunswick made the order now appealed from in deference to a judgment of the Supreme Court of Canada in the case of the City of Frederickton v. The Queen. In that case the question of the validity of the Canada Temperance Act, 1878, though in another shape, directly arose, and the Supreme Court of New Brunswick, consisting of six Judges, then decided, Mr. Justice Palmer dissenting, that the Act was beyond the competency of the Dominion Parliament. On the appeal of the City of Frederickton, this judgment was reversed by the Supreme Court of Canada, which held, Mr. Justice Henry dissenting, that the Act was valid. (The case is reported in 3rd Supreme Court of Canada Reports, p. 505.) The present appeal to Her Majesty is brought, in effect, to review the last-mentioned decision. 4 The preamble of the Act in question states that "it is very desirable to promote temperance in the dominion, and that there should be uniform legislation in all the provinces respecting the traffic in intoxicating liquors." The Act is divided into three parts. The first relates to "proceedings for bringing the second part of this Act into force;" the second to "prohibition of traffic in intoxicating liquors;" and the third to "penalties and prosecutions for offences against the second part." 146

5 The mode of bringing the second part of the Act into force, stating it succinctly, is as follows: On a petition to the Governor in Council, signed by not less than one fourth in number of the electors of any county or city in the Dominion qualified to vote at the election of a member of the House of Commons, praying that the second part of the Act should be in force and take effect in such county or city, and that the votes of all the electors be taken for or against the adoption of the petition, the GovernorGeneral, after certain prescribed notices and evidence, may issue a proclamation, embodying such petition, with a view to a poll of the electors being taken for or against its adoption. When any petition has been adopted by the electors of the county or city named in it, the Governor-General in Council may, after the expiration of sixty days from the day on which the petition was adopted, by Order in Council published in the Gazette, declare that the second part of the Act shall be in force and take effect in such county or city, and the same is then to become of force and take effect accordingly. Such Order in Council is not to be revoked for three years, and only on like petition and procedure. 6 The most important of the prohibitory enactments contained in the second part of the Act is s. 99, which enacts that, "from the day on which this part of this Act comes into force and takes effect in any county or city, and for so long thereafter as the same continues in force therein, no person, unless it be for exclusively sacramental or medicinal purposes, or for bonâ fide use in some art, trade, or manufacture, under the regulation contained in the fourth sub-section of this section, or as hereinafter authorized by one of the four next sub-sections of this section, shall, within such county or city, by himself, his clerk, servant, or agent, expose or keep for sale, or directly or indirectly, on any pretence or upon any device, sell or barter, or in consideration of the purchase of any other property give, to any other person, any spirituous or other intoxicating liquor, or any mixed liquor, capable of being used as a beverage, and part of which is spirituous or otherwise intoxicating." 7 Sub-sect. 2 provides that "neither any license issued to any distiller or brewer" (and after enumerating other licenses), "nor yet any other description of license whatever, shall in any wise avail to render legal any act done in violation of this section." 8 Sub-sect. 3 provides for the sale of wine for sacramental purposes, and sub-sect. 4 for the sale of intoxicating liquors for medicinal and manufacturing purposes, these sales being made subject to prescribed conditions. 9 Other sub-sections provide that producers of cider, and distillers and brewers, may sell liquors of their own manufacture in certain quantities, which may be termed wholesale quantities, or for export, subject to prescribed conditions, and there are provisions of a like nature with respect to vine-growing companies and manufacturers of native wines. 10 The third part of the Act enacts (sect. 100) that whoever exposes for sale or sells intoxicating liquors in violation of the second part of the Act should be liable, on summary conviction, to a penalty of not less than fifty dollars for the first offence, and not less than one hundred dollars for the second offence, and to be imprisoned for a term not exceeding two months for the third and every

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subsequent offence; all intoxicating liquors in respect to which any such offence has been committed to be forfeited. 11 The effect of the Act when brought into force in any county or town within the Dominion is, describing it generally, to prohibit the sale of intoxicating liquors, except in wholesale quantities, or for certain specified purposes, to regulate the traffic in the excepted cases, and to make sales of liquors in violation of the prohibition and regulations contained in the Act criminal offences, punishable by fine, and for the third or subsequent offence by imprisonment. 12 It was in the first place contended, though not very strongly relied on, by the Appellant's counsel, that assuming the Parliament of Canada had authority to pass a law for prohibiting and regulating the sale of intoxicating liquors, it could not delegate its powers, and that it had done so by delegating the power to bring into force the prohibitory and penal provisions of the Act to a majority of the electors of counties and cities. The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer on these persons power to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient, and is certainly not unusual, and the power so to legislate cannot be denied to the Parliament of Canada, when the subject of legislation is within its competency. Their Lordships entirely agree with the opinion of Chief Justice Ritchie on this objection. If authority on the point were necessary, it will be found in the case of the Queen v. Burah, 3 App. Cas. 889, lately before this Board. 13 The general question of the competency of the Dominion Parliament to pass the Act depends on the construction of the 91st and 92nd sections of the British North America Act, 1867, which are found in Part VI. of the statute under the heading, "Distribution of Legislative Powers." 14 The 91st section enacts, "It shall be lawful for the Queen by and with the advice and consent of the Senate and House of Commons to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the legislatures of the provinces; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding anything in this Act) the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subject next hereinafter enumerated;" then after the enumeration of twenty-nine classes of subjects, the section contains the following words: "And any matter coming within any of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislature of the province."

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15 The general scheme of the British North America Act with regard to the distribution of legislative powers, and the general scope and effect of sects. 91 and 92, and their relation to each other, were fully considered and commented on by this Board in the case of the Citizens Insurance Company v. Parsons, 7 App. Cas. 96. According to the principle of construction there pointed out, the first question to be determined is, whether the Act now in question falls within any of the classes of subjects enumerated in sect. 92, and assigned exclusively to the Legislatures of the Provinces. 16 If it does, then the further question would arise, viz., whether the subject of the Act does not also fall within one of the enumerated classes of subjects in sect. 91, and so does not still belong to the Dominion Parliament. But if the Act does not fall within any of the classes of subjects in sect. 92, no further question will remain, for it cannot be contended, and indeed was not contended at their Lordships' bar, that, if the Act does not come within one of the classes of subjects assigned to the Provincial Legislatures, the Parliament of Canada had not, by its general power "to make laws for the peace, order, and good government of Canada," full legislative authority to pass it. 17 Three classes of subjects enumerated in sect. 92 were referred to, under each of which, it was contended by the appellant's counsel, the present legislation fell. These were: 9. Shop, saloon, tavern, auctioneer, and other licenses in order to the raising of a revenue for provincial, local, or municipal purposes. 13. Property and civil rights in the province. 16. Generally all matters of a merely local or private nature in the province. 18 With regard to the first of these classes, No. 9, it is to be observed that the power of granting licenses is not assigned to the Provincial Legislatures for the purpose of regulating trade, but "in order to the raising of a revenue for provincial, local, or municipal purposes." 19 The Act in question is not a fiscal law; it is not a law for raising revenue; on the contrary, the effect of it may be to destroy or diminish revenue; indeed it was a main objection to the Act that in the city of Frederickton it did in point of fact diminish the sources of municipal revenue. It is evident, therefore, that the matter of the Act is not within the class of subject No. 9, and consequently that it could not have been passed by the Provincial Legislature by virtue of any authority conferred upon it by that sub-section. 20 It appears that by statutes of the province of New Brunswick authority has been conferred upon the municipality of Frederickton to raise money for municipal purposes by granting licenses of the nature of those described in No. 9 of sect. 92, and that licenses granted to taverns for the sale of intoxicating liquors were a profitable source of revenue to the municipality. It was contended by the appellant's counsel, and it was their main argument on this part of the case, that the Temperance Act interfered prejudicially with the traffic from which this revenue was derived, and thus invaded a

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subject assigned exclusively to the Provincial Legislature. But, supposing the effect of the Act to be prejudicial to the revenue derived by the municipality from licenses, it does not follow that the Dominion Parliament might not pass it by virtue of its general authority to make laws for the peace, order, and good government of Canada. Assuming that the matter of the Act does not fall within the class of subject described in No. 9, that sub-section can in no way interfere with the general authority of the Parliament to deal with that matter. If the argument of the appellant that the power given to the Provincial Legislatures to raise a revenue by licenses prevents the Dominion Parliament from legislating with regard to any article or commodity which was or might be covered by such licenses were to prevail, the consequence would be that laws which might be necessary for the public good or the public safety could not be enacted at all. Suppose it were deemed to be necessary or expedient for the national safety, or for political reasons, to prohibit the sale of arms, or the carrying of arms, it could not be contended that a Provincial Legislature would have authority, by virtue of sub-sect. 9 (which alone is now under discussion), to pass any such law, nor, if the appellant's argument were to prevail, would the Dominion Parliament be competent to pass it, since such a law would interfere prejudicially with the revenue derived from licenses granted under the authority of the Provincial Legislature for the sale or the carrying of arms. Their Lordships think that the right construction of the enactments does not lead to any such inconvenient consequence. It appears to them that legislation of the kind referred to, though it might interfere with the sale or use of an article included in a license granted under sub-sect. 9, is not in itself legislation upon or within the subject of that sub-section, and consequently is not by reason of it taken out of the general power of the Parliament of the Dominion. It is to be observed that the express provision of the Act in question that no licenses shall avail to render legal any act done in violation of it, is only the expression, inserted probably from abundant caution, of what would be necessarily implied from the legislation itself assuming it to be valid. 21 Next, their Lordships cannot think that the Temperance Act in question properly belongs to the class of subjects, "Property and Civil Rights." It has in its legal aspect an obvious and close similarity to laws which place restrictions on the sale or custody of poisonous drugs, or of dangerously explosive substances. These things, as well as intoxicating liquors, can, of course, be held as property, but a law placing restrictions on their sale, custody, or removal, on the ground that the free sale or use of them is dangerous to public safety, and making it a criminal offence punishable by fine or imprisonment to violate these restrictions, cannot properly be deemed a law in relation to property in the sense in which those words are used in the 92nd section. What Parliament is dealing with in legislation of this kind is not a matter in relation to property and its rights, but one relating to public order and safety. That is the primary matter dealt with, and though incidentally the free use of things in which men may have property is interfered with, that incidental interference does not alter the character of the law. Upon the same considerations, the Act in question cannot be regarded as legislation in relation to civil rights. In however large a sense these words are used, it could not have been intended to prevent the Parliament of Canada from declaring and enacting certain uses of property, and certain acts in relation to property, to be criminal and wrongful. Laws which make it a criminal offence for a man wilfully to set fire to his own house on the ground that such an act endangers the public safety, or to overwork 150

his horse on the ground of cruelty to the animal, though affecting in some sense property and the right of a man to do as he pleases with his own, cannot properly be regarded as legislation in relation to property or to civil rights. Nor could a law which prohibited or restricted the sale or exposure of cattle having a contagious disease be so regarded. Laws of this nature designed for the promotion of public order, safety, or morals, and which subject those who contravene them to criminal procedure and punishment, belong to the subject of public wrongs rather than to that of civil rights. They are of a nature which fall within the general authority of Parliament to make laws for the order and good government of Canada, and have direct relation to criminal law, which is one of the enumerated classes of subjects assigned exclusively to the Parliament of Canada. It was said in the course of the judgment of this Board in the case of the Citizens Insurance Company of Canada v. Parsons, 7 App. Cas. 96, that the two sections (91 and 92) must be read together, and the language of one interpreted, and, where necessary, modified by that of the other. Few, if any, laws could be made by Parliament for the peace, order, and good government of Canada which did not in some incidental way affect property and civil rights; and it could not have been intended, when assuring to the provinces exclusive legislative authority on the subjects of property and civil rights, to exclude the Parliament from the exercise of this general power whenever any such incidental interference would result from it. The true nature and character of the legislation in the particular instance under discussion must always be determined, in order to ascertain the class of subject to which it really belongs. In the present case it appears to their Lordships, for the reasons already given, that the matter of the Act in question does not properly belong to the class of subjects "Property and Civil Rights" within the meaning of sub-sect. 13. 22 It was argued by Mr. Benjamin that if the Act related to criminal law, it was provincial criminal law, and he referred to sub-sect. 15 of sect. 92, viz., "The imposition of any punishment by fine, penalty, or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section." No doubt this argument would be well founded if the principal matter of the Act could be brought within any of these classes of subjects; but as far as they have yet gone, their Lordships fail to see that this has been done. 23 It was lastly contended that this Act fell within sub-sect. 16 of sect. 92, - "Generally all matters of a merely local or personal nature in the province." 24 It was not, of course, contended for the appellant that the Legislature of New Brunswick could have passed the Act in question, which embraces in its enactments all the provinces; nor was it denied, with respect to this last contention, that the Parliament of Canada might have passed an Act of the nature of that under discussion to take effect at the same time throughout the whole Dominion. Their Lordships understand the contention to be that, at least in the absence of a general law of the Parliament of Canada, the provinces might have passed a local law of a like kind, each for its own province, and that, as the prohibitory and penal parts of the Act in question were to come into force in those counties and cities only in which it was adopted in the manner prescribed, or, as it was said, "by

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local option," the legislation was in effect, and on its face, upon a matter of a merely local nature. The judgment of Allen, C.J., delivered in the Supreme Court of the Province of New Brunswick in the case of Barker v. City of Frederickton, 3 Pugs & Burb. Sup. Ct. New Br. Rep. 139, which was adverse to the validity of the Act in question, appears to have been founded upon this view of its enactments. The learned Chief Justice says: "Had this Act prohibited the sale of liquor, instead of merely restricting and regulating it, I should have had no doubt about the power of the Parliament to pass such an Act; but I think an Act, which in effect authorizes the inhabitants of each town or parish to regulate the sale of liquor, and to direct for whom, for what purposes, and under what conditions spirituous liquors may be sold therein, deals with matters of a merely local nature, which, by terms of the 16th sub-section of sect. 92 of the British North America Act, are within the exclusive control of the local Legislature." 25 Their Lordships cannot concur in this view. The declared object of Parliament in passing the Act is that there should be uniform legislation in all the provinces respecting the traffic in intoxicating liquors, with a view to promote temperance in the Dominion. Parliament does not treat the promotion of temperance as desirable in one province more than in another, but as desirable everywhere throughout the Dominion. The Act as soon as it was passed became a law for the whole Dominion, and the enactments of the first part, relating to the machinery for bringing the second part into force, took effect and might be put in motion at once and everywhere within it. It is true that the prohibitory and penal parts of the Act are only to come into force in any county or city upon the adoption of a petition to that effect by a majority of electors, but this conditional application of these parts of the Act does not convert the Act itself into legislation in relation to a merely local matter. The objects and scope of the legislation are still general, viz., to promote temperance by means of a uniform law throughout the Dominion. 26 The manner of bringing the prohibitions and penalties of the Act into force, which Parliament has thought fit to adopt, does not alter its general and uniform character. Parliament deals with the subject as one of general concern to the Dominion, upon which uniformity of legislation is desirable, and the Parliament alone can so deal with it. There is no ground or pretence for saying that the evil or vice struck at by the Act in question is local or exists only in one province, and that Parliament, under colour of general legislation, is dealing with a provincial matter only. It is therefore unnecessary to discuss the considerations which a state of circumstances of this kind might present. The present legislation is clearly meant to apply a remedy to an evil which is assumed to exist throughout the Dominion, and the local option, as it is called, no more localises the subject and scope of the Act than a provision in an Act for the prevention of contagious diseases in cattle that a public officer should proclaim in what districts it should come in effect, would make the statute itself a mere local law for each of these districts. In statutes of this kind the legislation is general, and the provision for the special application of it to particular places does not alter its character. 27 Their Lordships having come to the conclusion that the Act in question does not fall within any of the classes of subjects assigned exclusively to the Provincial Legislatures, it becomes unnecessary to

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discuss the further question whether its provisions also fall within any of the classes of subjects enumerated in sect. 91. In abstaining from this discussion, they must not be understood as intimating any dissent from the opinion of the Chief Justice of the Supreme Court of Canada and the other Judges, who held that the Act, as a general regulation of the traffic in intoxicating liquors throughout the Dominion, fell within the class of subject, "the regulation of trade and commerce," enumerated in that section, and was, on that ground, a valid exercise of the legislative power of the Parliament of Canada. 28 In the result, their Lordships will humbly recommend Her Majesty to affirm the judgment of the Supreme Court of Canada, and with costs.

Attorney General Ontario v. Attorney General Canada, 1896

[1896] A.C. 348 Judicial Committee of the Privy Council, London, England Lord Halsbury L.C., Lord Herschell, Lord Watson, Lord Davey and Sir Richard Couch FROM THE SUPREME COURT OF CANADA APPEAL by special leave from a judgment of the Supreme Court (Jan. 15, 1895) consisting of Strong C.J., Fournier, Gwynne, Sedgwick, and King JJ. Under the Supreme and Exchequer Courts Act (Revised Stat. Can. c. 135), as amended by Dominion Act (54 & 55 Vict. c. 25), s. 4, the Governor-General of Canada, by Order in Council (Oct. 26, 1893), submitted to the Supreme Court of Canada the following questions: 1. Has a provincial legislature jurisdiction to prohibit the sale within the province of spirituous, fermented, or other intoxicating liquors? 2. Or has the legislature such jurisdiction regarding such portions of the province as to which the Canada Temperance Act is not in operation? 3. Has a provincial legislature jurisdiction to prohibit the manufacture of such liquors within the province? 4. Has a provincial legislature jurisdiction to prohibit the importation of such liquors into the province? 5. If a provincial legislature has not jurisdiction to prohibit sales of such liquors, irrespective of quantity, has such legislature jurisdiction to prohibit the sale by retail, according to the definition of a sale by retail either in statutes in force in the province at the time of confederation, or any other definition thereof? 6. If a provincial legislature has a limited jurisdiction only as regards the prohibition of sales, has the legislature jurisdiction to prohibit sales subject to the limits provided by the several subsections of the 99th section of the Canada Temperance Act, or any of them (Revised Statutes of Canada, 49 Vict. c. 106, s. 99)? 153

7. Has the Ontario Legislature jurisdiction to enact s. 18 of Ontario Act, 53 Vict. c. 56, intituled "An Act to improve the Liquor Licence Acts," as said section is explained by Ontario Act, 54 Vict. c. 46, intituled "An Act respecting local option in the matter of liquor selling"? Sect. 18, referred to in the last of the said questions, is as follows: Whereas the following provision of this section was at the date of confederation in force as a part of the Consolidated Municipal Act (29th and 30th Victoria, chapter 51, section 249, subsection 9), and was afterwards re-enacted as sub-section 7 of section 6 of 32nd Victoria, chapter 32, being the Tavern and Shop Licence Act of 1868, but was afterwards omitted in subsequent consolidations of the Municipal and the Liquor Licence Acts, similar provisions as to local prohibition being contained in the Temperance Act of 1864, 27th and 28th Victoria, chapter 18; and the said last-mentioned Act having been repealed in municipalities where not in force by the Canada Temperance Act, it is expedient that municipalities should have the powers by them formerly possessed; it is hereby enacted as follows: "The council of every township, city, town, and incorporated village may pass by-laws for prohibiting the sale by retail of spirituous, fermented, or other manufactured liquors in any tavern, inn, or other house or place of public entertainment, and for prohibiting altogether the sale thereof in shops and places other than houses of public entertainment. Provided that the by-law before the final passing thereof has been duly approved of by the electors of the municipality in the manner provided by the sections in that behalf of the Municipal Act. Provided further that nothing in this section contained shall be construed into an exercise of jurisdiction by the Legislature of the province of Ontario beyond the revival of provisions of law which were in force at the date of the passing of the British North America Act, and which the subsequent legislation of this province purported to repeal." [....] The judgment of their Lordships was delivered by 1 LORD WATSON:-- Their Lordships think it expedient to deal, in the first instance, with the seventh question, because it raises a practical issue, to which the able arguments of counsel on both sides of the Bar were chiefly directed, and also because it involves considerations which have a material bearing upon the answers to be given to the other six questions submitted in this appeal. In order to appreciate the merits of the controversy, it is necessary to refer to certain laws for the restriction or suppression of the liquor traffic which were passed by the Legislature of the old province of Canada before the Union, or have since been enacted by the Parliament of the Dominion, and by the Legislature of Ontario respectively. 2 At the time when the British North America Act of 1867 came into operation, the statute book of the old province contained two sets of enactments applicable to Upper Canada, which, though differing in expression, were in substance very similar. 154

3 The most recent of these enactments were embodied in the Temperance Act, 1864 (27 & 28 Vict. c. 18), which conferred upon the municipal council of every county, town, township, or incorporated village, "besides the powers at present conferred on it by law," power at any time to pass a by-law prohibiting the sale of intoxicating liquors, and the issue of licences therefor, within the limits of the municipality. Such by-law was not to take effect until submitted to and approved by a majority of the qualified electors; and provision was made for its subsequent repeal in deference to an adverse vote of the electors. 4 The previous enactments relating to the same subject, which were in force at the time of the Union, were contained in the Consolidated Municipal Act, 29 & 30 Vict. c. 51. They empowered the council of every township, town, and incorporated village, and the commissioners of police in cities, to make by-laws for prohibiting the sale by retail of spirituous, fermented, or other manufactured liquors in any inn or other house of public entertainment; and for prohibiting totally the sale thereof in shops and places other than houses of public entertainment: provided the by-law, before the final passing thereof, had been duly approved by the electors of the municipality in the manner prescribed by the Act. After the Union, the Legislature of Ontario inserted these enactments in the Tavern and Shop Licence Act, 32 Vict. c. 32. They were purposely omitted from subsequent consolidations of the Municipal and Liquor Licence Acts; and, in the year 1886, when the Canada Temperance Act was passed by the Parliament of Canada, there was no provincial law authorizing the prohibition of liquor sales in Ontario save the Temperance Act, 1864. [....] 8 With the view of restoring to municipalities within the province whose powers were affected by that repeal the right to make by-laws which they had possessed under the law of the old province, the Legislature of Ontario passed s. 18 of 53 Vict. c. 56, to which the seventh question in this case relates. The enacting words of the clause are introduced by a preamble which recites the previous course of legislation, and the repeal by the Canada Temperance Act of the Upper Canada Act of 1864 in municipalities where not in force, and concludes thus: "it is expedient that municipalities should have the powers by them formerly possessed." The enacting words of the clause, with the exception of one or two changes of expression which do not affect its substance, are a mere reproduction of the provisions, not of the Temperance Act of 1864, but of the kindred provisions of the Municipal Act (29 & 30 Vict. c. 51), which had been omitted from the consolidated statutes of the province. A new proviso is added, to the effect that "nothing in this section contained shall be construed into an exercise of jurisdiction by the province of Ontario beyond the revival of provisions of law which were in force at the date of the passing of the British North America Act, and which the subsequent legislation of this province purported to repeal. The Legislature of Ontario subsequently passed an Act (54 Vict. c. 46) for the purpose of explaining that s. 18 was not meant to repeal by implication certain provisions of the Municipal Act (29 & 30 Vict. c. 51), which limit its application to retail dealings.

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9 The seventh question raises the issue, whether, in the circumstances which have just been detailed, the provincial legislature had authority to enact s. 18. In order to determine that issue, it becomes necessary to consider, in the first place, whether the Parliament of Canada had jurisdiction to enact the Canada Temperance Act; and, if so, to consider in the second place, whether, after that Act became the law of each province of the Dominion, there yet remained power with the Legislature of Ontario to enact the provisions of s. 18. 10 The authority of the Dominion Parliament to make laws for the suppression of liquor traffic in the province is maintained, in the first place, upon the ground that such legislation deals with matters affecting "the peace, order, and good government of Canada," within the meaning of the introductory and general enactments of s. 91 of the British North America Act; and, in the second place, upon the ground that it concerns "the regulation of trade and commerce," being No. 2 of the enumerated classes of subjects which are placed under the exclusive jurisdiction of the Federal Parliament by that section. These sources of jurisdiction are in themselves distinct, and are to be found in different enactments. [....] 12 The general authority given to the Canadian Parliament by the introductory enactments of s. 91 is "to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the legislatures of the provinces"; and it is declared, but not so as to restrict the generality of these words, that the exclusive authority of the Canadian Parliament extends to all matters coming within the classes of subjects which are enumerated in the clause. There may, therefore, be matters not included in the enumeration, upon which the Parliament of Canada has power to legislate, because they concern the peace, order, and good government of the Dominion. But to those matters which are not specified among the enumerated subjects of legislation, the exception from s. 92, which is enacted by the concluding words of s. 91, has no application; and, in legislating with regard to such matters, the Dominion Parliament has no authority to encroach upon any class of subjects which is exclusively assigned to provincial legislatures by s. 92. These enactments appear to their Lordships to indicate that the exercise of legislative power by the Parliament of Canada, in regard to all matters not enumerated in s. 91, ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance, and ought not to trench upon provincial legislation with respect to any of the classes of subjects enumerated in s. 92. To attach any other construction to the general power which, in supplement of its enumerated powers, is conferred upon the Parliament of Canada by s. 91, would, in their Lordships' opinion, not only be contrary to the intendment of the Act, but would practically destroy the autonomy of the provinces. If it were once conceded that the Parliament of Canada has authority to make laws applicable to the whole Dominion, in relation to matters which in each province are substantially of local or private interest, upon the assumption that these matters also

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concern the peace, order, and good government of the Dominion, there is hardly a subject enumerated in s. 92 upon which it might not legislate, to the exclusion of the provincial legislatures. 13 In construing the introductory enactments of s. 91, with respect to matters other than those enumerated, which concern the peace, order, and good government of Canada, it must be kept in view that s. 94, which empowers the Parliament of Canada to make provision for the uniformity of the laws relative to property and civil rights in Ontario, Nova Scotia, and New Brunswick does not extend to the province of Quebec; and also that the Dominion legislation thereby authorized is expressly declared to be of no effect unless and until it has been adopted and enacted by the provincial legislature. These enactments would be idle and abortive, if it were held that the Parliament of Canada derives jurisdiction from the introductory provisions of s. 91, to deal with any matter which is in substance local or provincial, and does not truly affect the interest of the Dominion as a whole. Their Lordships do not doubt that some matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian Parliament in passing laws for their regulation or abolition in the interest of the Dominion. But great caution must be observed in distinguishing between that which is local and provincial, and therefore within the jurisdiction of the provincial legislatures, and that which has ceased to be merely local or provincial, and has become matter of national concern, in such sense as to bring it within the jurisdiction of the Parliament of Canada. An Act restricting the right to carry weapons of offence, or their sale to young persons, within the province would be within the authority of the provincial legislature. But traffic in arms, or the possession of them under such circumstances as to raise a suspicion that they were to be used for seditious purposes, or against a foreign State, are matters which, their Lordships conceive, might be competently dealt with by the Parliament of the Dominion. 14 The judgment of this Board in Russell v. Reg., 7 App. Cas. 829, has relieved their Lordships from the difficult duty of considering whether the Canada Temperance Act of 1886 relates to the peace, order, and good government of Canada, in such sense as to bring its provisions within the competency of the Canadian Parliament. In that case the controversy related to the validity of the Canada Temperance Act of 1878; and neither the Dominion nor the Provinces were represented in the argument. It arose between a private prosecutor and a person who had been convicted, at his instance, of violating the provisions of the Canadian Act within a district of New Brunswick, in which the prohibitory clauses of the Act had been adopted. But the provisions of the Act of 1878 were in all material respects the same with those which are now embodied in the Canada Temperance Act of 1886; and the reasons which were assigned for sustaining the validity of the earlier, are, in their Lordships' opinion, equally applicable to the later Act. It therefore appears to them that the decision in Russell v. Reg., 7 App. Cas. 829, must be accepted as an authority to the extent to which it goes, namely, that the restrictive provisions of the Act of 1886, when they have been duly brought into operation in any provincial area within the Dominion, must receive effect as valid enactments relating to the peace, order, and good government of Canada.

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[....] 20 It is not necessary for the purposes of the present appeal to determine whether provincial legislation for the suppression of the liquor traffic, confined to matters which are provincial or local within the meaning of Nos. 13 and 16, is authorized by the one or by the other of these heads. It cannot, in their Lordships' opinion, be logically held to fall within both of them. In s. 92, No. 16 appears to them to have the same office which the general enactment with respect to matters concerning the peace, order, and good government of Canada, so far as supplementary of the enumerated subjects, fulfils in s. 91. It assigns to the provincial legislature all matters in a provincial sense local or private which have been omitted from the preceding enumeration, and, although its terms are wide enough to cover, they were obviously not meant to include, provincial legislation in relation to the classes of subjects already enumerated. [...] 23 The question must next be considered whether the provincial enactments of s. 18 to any, and if so to what, extent come into collision with the provisions of the Canadian Act of 1886. In so far as they do, provincial must yield to Dominion legislation, and must remain in abeyance unless and until the Act of 1886 is repealed by the parliament which passed it. [....] 28 Their Lordships, for these reasons, give a general answer to the seventh question in the affirmative. They are of opinion that the Ontario Legislature had jurisdiction to enact s. 18, subject to this necessary qualification, that its provisions are or will become inoperative in any district of the province which has already adopted, or may subsequently adopt, the second part of the Canada Temperance Act of 1886. [....]

Fort Frances Pulp & Paper v. Manitoba Free Press, 1923

[1923] A.C. 695 Judicial Committee of the Privy Council, London, England Viscount Haldane, Lord Buckmaster, Lord Sumner, Lord Parmoor and Lord Phillimore FROM THE SUPREME COURT OF ONTARIO, APPELLATE DIVISION 1 VISCOUNT HALDANE:-- This appeal raises questions of some novelty and delicacy.

2 The appellants are manufacturers of newsprint paper in Ontario, and the respondents are publishers of newspapers, carrying on business at various places in Canada. The action out of which 158

the appeal arises was brought by the respondents against the appellants to recover sums the former had paid for paper delivered to them at controlled prices. These sums, which the respondents alleged to represent margins in excess of the prices regulated by law, they claimed to be repayable to them as the result of orders of the Paper Control Tribunal of Canada, the final order having been made on July 8, 1920. The sums represented the amounts due after an adjustment of accounts in accordance with the above-mentioned final order and previous orders which it modified. For the balance so arrived at the action was brought in the Supreme Court of Ontario. It was tried before Riddell J., who gave judgment for the plaintiffs, the respondents. 3 No question was raised as to figures, and the learned judge treated the question before him as being only whether the Paper Control Tribunal and the Paper Controller, from whose orders the Paper Control Tribunal was in effect a Court of Appeal, had been validly vested with power to make the orders in controversy. The judgment of Riddell J. was made the subject of an appeal to the Appellate Division of the Supreme Court, which affirmed the judgment of the trial judge. There was a counterclaim by the appellants for the amount of the market prices of the paper delivered by them to the respondents, less the sums actually paid. This was dismissed by Riddell J., the dismissal being consequential on his view that the Orders were valid. The Court of Appeal did not think it necessary to go into this question of validity, for they considered that notwithstanding that pressure was put on the appellants to supply the paper at the prices fixed by the Orders, they did send out invoices and supply it, and thereby in effect entered into contracts for such supply on the terms that the prices were provisional and to be finally adjusted in terms of the Orders to be made by the Paper Control Tribunal. On that footing nothing was, in the event, due on the counterclaim. Whether the action of these tribunals was legal or not, the appellate Court therefore held that the appellants, notwithstanding that they had acted under pressure, had bound themselves to accept the prices fixed and were liable. 4 Their Lordships have not been able to satisfy themselves that this view was a reliable one. The tribunals exercised control not only over prices but over the supply of the paper itself, and were in a position to exercise, and did exercise, pressure which was practically irresistible. There is evidence of its character in the present case, and the appellants contend that if the case is to be decided on the footing on which it was decided by the appellate Court -- a footing which would be material only on the hypothesis that the Orders were invalid -- it should be sent back for a new trial. Their Lordships think that this contention cannot be lightly overruled. But if the Orders were not invalid but valid, and the tribunals really possessed the powers they claimed to exercise, the question does not arise. It is therefore necessary to consider in the first place the validity of the legislation and Orders in Council by which the controlling tribunals were set up and invested with the powers exercised. 5 Purporting to act under the provisions of the War Measures Act passed by the Parliament of the Dominion in August, 1914, the Governor-General made an Order in Council, dated April 16, 1917, authorizing the Minister of Customs to fix the quantity and price of newsprint paper in sheets or rolls furnished or to be furnished to those who required it for publishing. The Order was to be operative

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from March 1, 1917, to June 1 in the same year. By further Orders this power was extended to December 1 in that year. Acting in accordance with these Orders the Minister ordered deliveries and fixed prices, and this procedure continued until Mr. R. A. Pringle K.C. was, by Order in Council dated November 3, 1917, appointed Controller as well as Commissioner, with power to fix the quantities to be delivered and the prices, such prices, however, to be approved by the Governor-General in Council. 6 By various Orders Mr. Pringle fixed prices for a period extending from July 1, 1918, to December 1 in that year. By Order in Council dated September 16, 1918, prices were directed no longer to be supervised by the Governor in Council, inasmuch as a new tribunal called the Paper Control Tribunal was set up, and a right of appeal to it from any Order of the Controller was given. The Paper Control Tribunal made various Orders on appeals from the Controller, and on July 8, 1920, made an Order fixing a price for a period ending on December 31, 1919, and directing the appellants to refund all sums received in excess of the prices fixed. It was the amount of the excess that was the subject of the present action. 7 On the construction and validity of these Orders points have been made in argument, but the most general question to be decided is definitely raised by the appellants, and is whether the Orders in Council, the statutory basis on which they rest, and the proceedings founded on them by the Controller and the Paper Control Tribunal, were intra vires of the Dominion executive and Legislature. 8 So far as the relevant legislation of the Parliament of the Dominion is concerned, this consists of two statutes. The first of these is the War Measures Act, 1914. It enacts that the provisions of s. 6 (to be presently referred to) are only to be in force during war, invasion or insurrection, real or apprehended. The issue of a Government proclamation is to be conclusive evidence that these exist and are continuing, until the issue of a subsequent proclamation declaring them to exist no longer. War is to be deemed to have existed since August 4, 1914. By s. 6 the Governor in Council is to have power to do and authorize such acts and things and to make such orders and regulations as he may, by reason of the existence of real or apprehended war, invasion or insurrection, deem necessary or advisable for the security, defence, peace, order and welfare of Canada. These powers are to extend, among other matters, to trading, exportation, importation, production, manufacture, and also to appropriation, control, forfeiture, and disposition of property and of its use. 9 By a later Act of the Dominion Parliament, passed on July 7, 1919, relating to paper control, after referring to certain of the Orders in Council already mentioned and to the War Measures Act of 1914, on the recital that there had been investigations and work begun by the Paper Commissioner and Controller which were not completed, and with respect to which appeals would lie to the Paper Control Tribunal, and that there were then matters pending before and undetermined by that tribunal, it was enacted that the powers, jurisdiction and authority of the Commissioner and Controller of Paper were confirmed and extended so as to enable him to complete all work and investigations begun by him prior to the declaration of peace, and to determine all questions and to make all necessary Orders

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with respect to matters coming before him prior to the publication in the Canada Gazette of a proclamation by the Governor in Council declaring the war to no longer exist. 10 It was further enacted that the powers, jurisdiction and authority of the Paper Control Tribunal were so confirmed and extended as to enable it to determine finally after the declaration of peace all matters pending before and not finally determined by it at the date of such declaration, and to dispose of all appeals brought before it subsequent to such declaration from any act done by or order or decision of the Commissioner and Controller under the Act. It was also provided that, except for the purpose of finally completing all matters undertaken, and determining all matters arising prior to the declaration of peace, the powers, the authority and jurisdiction of the Commissioner and Controller of Paper and of the Paper Control Tribunal should cease upon the publication of the said proclamation. 11 It is not clear that any such proclamation as above defined was issued. There was an Order made by His Majesty in the Imperial Privy Council on February 9, 1920, and published in the Canada Gazette on the same date, declaring January 10, 1920, as the date of the termination of the war with Germany. But there was war with other countries to which this Order did not relate, and of a proclamation as to these no evidence has been produced. 12 Their Lordships do not, however, consider this to be in itself important. For it is clear that on July 8, 1920, the Paper Control Tribunal when it made the Order under which the claim in this action arose, made it on an appeal from an Order of Mr. Pringle, the Controller, dated December 24, 1919. The Order on appeal of July 8, 1920, disposed of matters down to December 31, 1919. It altered certain prices governing periods, which prices the Controller had fixed in the past, increasing some of these and diminishing others, and directed any excess thus brought out of amounts charged by the appellants to be repaid, subject to set-off. 13 Their Lordships think that the effect of these Orders, assuming the Dominion Government and Legislature had authority to make them, was to render the appellants liable to account for the balance of the prices received by them from time to time up to the end of 1919 in excess of what was ultimately allowed, on the footing of being money had and received to the use of the respondents. No question arises as to figures, and the Orders are in such a form that they must be taken as intended to operate retrospectively. 14 The question, therefore, becomes one of constitutional law, as to whether the procedure thus established had a valid basis. This depends, in the first place, on whether the two statutes already quoted were intra vires of the Dominion Parliament. 15 It is clear that in normal circumstances the Dominion Parliament could not have so legislated as to set up the machinery of control over the paper manufacturers which is now in question. The recent decision of the Judicial Committee in the Board of Commerce Case, [1922] 1 A.C. 191, as well as earlier decisions, show that as the Dominion Parliament cannot ordinarily legislate so as to interfere with property and civil rights in the Provinces, it could not have done what the two statutes under 161

consideration purport to do had the situation been normal. But it does not follow that in a very different case, such as that of sudden danger to social order arising from the outbreak of a great war, the Parliament of the Dominion cannot act under other powers which may well be implied in the constitution. The reasons given in the Board of Commerce Case, [1922] 1 A.C. 191, recognize exceptional cases where such a power may be implied. 16 In the event of war, when the national life may require for its preservation the employment of very exceptional means, the provision of peace, order and good government for the country as a whole may involve effort on behalf of the whole nation, in which the interests of individuals may have to be subordinated to that of the community in a fashion which requires s. 91 to be interpreted as providing for such an emergency. The general control of property and civil rights for normal purposes remains with the Provincial Legislatures. But questions may arise by reason of the special circumstances of the national emergency which concern nothing short of the peace, order and good government of Canada as a whole. 17 The overriding powers enumerated in s. 91, as well as the general words at the commencement of the section, may then become applicable to new and special aspects which they cover of subjects assigned otherwise exclusively to the Provinces. It may be, for example, impossible to deal adequately with the new questions which arise without the imposition of special regulations on trade and commerce of a kind that only the situation created by the emergency places within the competency of the Dominion Parliament. It is proprietary and civil rights in new relations, which they do not present in normal times, that have to be dealt with; and these relations, which affect Canada as an entirety, fall within s. 91, because in their fullness they extend beyond what s. 92 can really cover. The kind of power adequate for dealing with them is only to be found in that part of the constitution which establishes power in the State as a whole. For it is not one that can be reliably provided for by depending on collective action of the Legislatures of the individual Provinces agreeing for the purpose. That the basic instrument on which the character of the entire constitution depends should be construed as providing for such centralised power in an emergency situation follows from the manifestation in the language of the Act of the principle that the instrument has among its purposes to provide for the State regarded as a whole, and for the expression and influence of its public opinion as such. This principle of a power so implied has received effect also in countries with a written and apparently rigid constitution such as the United States, where the strictly federal character of the national basic agreement has retained the residuary powers not expressly conferred on the Federal Government for the component States. The operation of the scheme of interpretation is all the more to be looked for in a constitution such as that established by the British North America Act, where the residuary powers are given to the Dominion Central Government; and the preamble of the statute declares the intention to be that the Dominion should have a constitution similar in principle to that of the United Kingdom.

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18 Their Lordships, therefore, entertain no doubt that however the wording of ss. 91 and 92 may have laid down a framework under which, as a general principle, the Dominion Parliament is to be excluded from trenching on property and civil rights in the Provinces of Canada, yet in a sufficiently great emergency such as that arising out of war, there is implied the power to deal adequately with that emergency for the safety of the Dominion as a whole. The enumeration in s. 92 is not in any way repealed in the event of such an occurrence, but a new aspect of the business of Government is recognized as emerging, an aspect which is not covered or precluded by the general words in which powers are assigned to the Legislatures of the Provinces as individual units. Where an exact line of demarcation will lie in such cases it may not be easy to lay down a priori, nor is it necessary. For in the solution of the problem regard must be had to the broadened field covered, in case of exceptional necessity, by the language of s. 91, in which the interests of the Dominion generally are protected. As to these interests the Dominion Government, which in its Parliament represents the people as a whole, must be deemed to be left with considerable freedom to judge. 19 The other point which arises is whether such exceptional necessity as must be taken to have existed when the war broke out, and almost of necessity for some period subsequent to its outbreak, continued through the whole of the time within which the questions in the present case arose. 20 When war has broken out it may be requisite to make special provision to ensure the maintenance of law and order in a country, even when it is in no immediate danger of invasion. Public opinion may become excitable, and one of the causes of this may conceivably be want of uninterrupted information in newspapers. Steps may have to be taken to ensure supplies of these and to avoid shortage, and the effect of the economic and other disturbance occasioned originally by the war may thus continue for some time after it is terminated. The question of the extent to which provision for circumstances such as these may have to be maintained is one on which a Court of law is loath to enter. No authority other than the central Government is in a position to deal with a problem which is essentially one of statesmanship. It may be that it has become clear that the crisis which arose is wholly at an end and that there is no justification for the continued exercise of an exceptional interference which becomes ultra vires when it is no longer called for. In such a case the law as laid down for distribution of powers in the ruling instrument would have to be invoked. But very clear evidence that the crisis has wholly passed away would be required to justify the judiciary, even when the question raised was one of ultra vires which it had to decide, in overruling the decision of the Government that exceptional measures were still requisite. In saying what is almost obvious, their Lordships observe themselves to be in accord with the view taken under analogous circumstances by the Supreme Court of the United States, and expressed in such decisions as that in October, 1919, in Hamilton v. Kentucky Distilleries Co., 251 U.S. 146. 21 When then, in the present instance, can it be said that the necessity altogether ceased for maintaining the exceptional measure of control over the newspaper print industry introduced while the war was at its height? At what date did the disturbed state of Canada which the war had produced

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so entirely pass away that the legislative measures relied on in the present case became ultra vires? It is enough to say that there is no clear and unmistakable evidence that the Government was in error in thinking that the necessity was still in existence at the dates on which the action in question was taken by the Paper Control Tribunal. No doubt late in 1919 statements were made to the effect that the war itself was at an end. For example, in the Order in Council made at Ottawa on December 20, 1919, it is stated that it must "be realised that although no proclamation has been issued declaring that the war no longer exists, actual war conditions have in fact long ago ceased to exist, and consequently existence of war can no longer be urged as a reason in fact for maintaining these extraordinary regulations as necessary or advisable for the security of Canada." 22 The Order in Council then goes on to say that in consequence of the armistice of November, 1918, the Expeditionary Force had since been withdrawn and demobilised, and the country generally is devoting its energies to reestablishment in the ordinary avocations of peace. In these circumstances, it states, the Minister of Justice considers that the time has arrived when the emergency Government legislation should cease to operate. This was in December, 1919. The Order then goes on to declare repealed all Orders and Regulations of the Governor in Council which depend for their sanction upon s. 6 of the War Measures Act, 1914, and repeals them as from January 1, 1920. But from this repeal it expressly excepts, among other Orders and Regulations specified, those relating to paper control, which are to remain in force until the end of another session of Parliament. 23 It will be observed that this Order in Council deals only with the results following from the cessation of actual war conditions. It excepts from repeal certain measures concerned with consequential conditions arising out of war, which may obviously continue to produce effects remaining in operation after war itself is over. 24 Their Lordships find themselves unable to say that the Dominion Government had no good reason for thus temporarily continuing the paper control after actual war had ceased, but while the effects of war conditions might still be operative. They are, therefore, unable to accept the propositions submitted to them in the powerful argument for the appellants. The reasons which bring them to this conclusion are not those of the Appellate Division of Ontario, which proceed on the hypothesis of a contract entered into by the appellants, a hypothesis which their Lordships are unable to entertain on the mere materials before them. Their reasons are more nearly those of the trial judge, Riddell J., although they desire to guard themselves from being regarded as accepting the suggestion made by that learned judge that "all the powers exercised by Minister, Controller and Tribunal were intra vires and valid, even in a state of profound peace." 25 Their Lordships will accordingly humbly advise His Majesty that the appeal should be dismissed with costs. A petition by the appellants for leave to adduce further evidence will also be formally dismissed with costs.

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Ontario (Attorney General) v. Canada Temperance Federation, 1946

[1946] A.C. 193 Judicial Committee of the Privy Council, London, England Viscount Simon, Lord Thankerton, Lord Roche, Lord Greene and Lord Goddard FROM THE COURT OF APPEAL FOR ONTARIO The judgment of their Lordships was delivered by 1 VISCOUNT SIMON:-- On June 1, 1939, the Lieutenant-Governor of Ontario in Council referred to the Supreme Court of Ontario under the provisions of the Constitutional Questions Act, R.S.O., c. 130, the following question: "Are Parts I., II. and III. of the Canada Temperance Act, R.S.C. 1927, c. 196, constitutionally valid in "whole or in part, and if in part, in what respect?" On September 26, 1939, the Supreme Court by a majority (Riddell, Fisher, McTague and Gillanders JJ.A.) answered the question as follows: "This court is of opinion (Henderson "J. dissenting) that Parts I., II. and III. of the Canada "Temperance Act, R.S.C. 1927, c. 196, are within the "legislative competence of the Parliament of Canada." Against this judgment the Attorney General for Ontario and the Moderation League of Ontario have appealed to the Judicial Committee, and their appeal has been supported by the Attorneys-General for Alberta and New Brunswick, who were admitted as interveners and were represented on the hearing. The appeal was opposed by counsel appearing for the Attorney General for Canada and for several Temperance Federations. 2 The object of the appeal is to challenge the decision of this Board in the case of Russell v. The Queen, 7 App. Cas. 829, or at any rate to deny its applicability to the Act now in question. The majority of the Supreme Court held that that decision governed the present case and obliged it to answer the question referred to it in the affirmative. The statute which was declared to be within the legislative competence of the Dominion Parliament in Russell's case, 7 App. Cas. 829, was the Canada Temperance Act, 1878. That Act has been amended from time to time by the Dominion Parliament, and has been revised and re-enacted in a consolidated form on more than one occasion under the provisions of the Acts relating to the revision of Statutes of Canada. The last revision took place in 1927 under the provisions of the Dominion Act, 1924 (14 & 15 Geo. 5, c. 65) and now appears on the Statute Roll as the Canada Temperance Act, R.S.C. of 1927, c. 196. The material provisions of the Act of 1927 are admittedly identical with those of the Act of 1878. 3 The object of the Act of 1878 was to authorize the adoption of a system of local option in regard to the sale of intoxicating liquor in counties and cities throughout the Dominion. By Part 1. elaborate provisions are made for bringing the Act into force within the area of any county or city. Following on a petition to the Governor-General in Council supported by a certain proportion of the electors in the area, a poll is to be taken, and if a majority supports the petition an Order in Council is passed bringing 165

the Act into effect in that area for a minimum of three years. Amendments have from time to time been passed dealing with portions of the Dominion which were not divided into counties and substituting electoral districts as the area in such cases, but it is unnecessary to set these out in detail. Part II. prohibits the sale of liquors in the areas in which the Act is brought into force, and Part III. provides for prosecution and penalties, which in some cases are severe, for breaches of the Act. 4 The Act having been passed in 1878, its constitutional validity was challenged in 1882 in Russell's case, 7 App. Cas. 829, which arose out of a conviction of the appellant Russell for unlawfully selling intoxicating liquor contrary to the provisions of Part II. of the Act. It was argued in that case that the Act was ultra vires of the Dominion Parliament on the ground that the matter was one which fell within s. 92 of the British North America Act and was therefore within the exclusive jurisdiction of the provincial legislatures. 5 The Board, however, held that the Act did not deal with any of the matters exclusively reserved to the provinces and upheld the validity of the statute on the ground that it related to the peace, order and good government of Canada. This decision has stood unreversed for sixty-three years. More than that, it has received the express approval of the Board in subsequent cases. A notable instance is to be found in Att.-Gen. for Ontario v. Att.-Gen. for the Dominion, [1896] A.C. 348. In that case Lord Watson, in delivering the judgment of the Board, said: "The judgment of this Board in Russell v. The Queen, 7 App. Cas. 829, has relieved their Lordships from the difficult duty of considering whether the Canada Temperance Act of 1886 relates to the peace, order and good government of Canada in such sense as to bring its provisions within the competency of the Canadian Parliament, [1896] A.C. 362." After pointing out that the provisions of the Act of 1878 were in all material respects the same as those embodied in the Act of 1886, which was the statute the Board had then to consider, he continued, "The reasons which were assigned for sustaining the validity of the earlier, are, in their Lordships' opinion, equally applicable to the later Act. It therefore appears to them that the decision in Russell v. The Queen, 7 App. Cas. 829, must he accepted as an authority to the extent to which it goes, namely, that the restrictive provisions of the Act of 1886, when they have been duly brought into operation in any provincial area within the Dominion, must receive effect as valid enactments relating to the peace, order and good government of Canada, [1896] A.C. 362." In 1883, in the earlier case of Hodge v. The Queen, 9 App. Cas. 117, the Judicial Committee had referred to Russell's case, 7 App. Cas. 829, without any indication of disapproval, nor is any to be found in the judgment of Lord Macnaghten in Att.-Gen. for Manitoba v. Manitoba Licence Holders' Association, [1902] A.C. 73, where the decisions of 1882 and of 1896 were contrasted. In many subsequent cases the case has been cited in judgments of the Board; it will be enough to mention Att.-Gen. for Canada v. Att.-Gen. for Alberta (The Insurers case), [1916] 1 A.C. 588, the Board of Commerce Act case, [1922] 1 A.C. 191, and King-Emperor v. Benoari Lal Sarma [1945] A.C. 14. It was also quoted as an authority by Lord Atkin in his speech in the House of Lords in Gallagher v. Lynn, [1937] A.C. 863, a case relating to the legislative powers of the Parliament of Northern Ireland.

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6 But in 1925 Russell's case, 7 App. Cas. 829, was commented on in a judgment of the Judicial Committee delivered by Lord Haldane in Toronto Electric Commissioners v. Snider, [1925] A.C. 396, and it is on this comment that the present appellants largely rely in support of their contention that it was wrongly decided. After contrasting that case with other decisions of the Board already mentioned above, Lord Haldane said: "It appears to their Lordships that it is not now open to them to treat Russell v. The Queen, 7 App. Cas. 829, as having established the general principle that the mere fact that Dominion legislation is for the general advantage of Canada, or is such that it will meet a mere want which is felt throughout the Dominion, renders it competent if it cannot be brought within the heads enumerated specifically in s. 91. ... No doubt there may be cases arising out of some extraordinary peril to the national life of Canada, as a whole, such as the cases arising out of a war, where legislation is required of an order that passes beyond the heads of exclusive Provincial competency", [1925] A.C. 412. And later he said "Their Lordships think that the decision in Russell v. The Queen, 7 App. Cas. 829, can only be supported to-day, not on the footing of having laid down an interpretation, such as has sometimes been invoked, of the general words at the beginning of s. 91, but on the assumption of the Board, apparently made at the time of deciding the case of Russell v. The Queen, 7 App. Cas. 829, that the evil of intemperance at that time amounted in Canada to one so great and so general that at least for the period it was a menace to the national life of Canada so serious and pressing that the National Parliament was called on to intervene to protect the nation from disaster. An epidemic of pestilence might conceivably have been regarded as analogous" [1937] A.C. 863. 7 The first observation which their Lordships would make on this explanation of Russell's case, 7 App. Cas. 829, is that the British North America Act nowhere gives power to the Dominion Parliament to legislate in matters which are properly to be regarded as exclusively within the competence of the provincial legislatures merely because of the existence of an emergency. Secondly, they can find nothing in the judgment of the Board in 1882 which suggests that it proceeded on the ground of emergency; there was certainly no evidence before that Board that one existed. The Act of 1878 was a permanent, not a temporary, Act, and no objection was raised to it on that account. In their Lordships' opinion, the true test must be found in the real subject matter of the legislation: if it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole (as, for example, in the Aeronautics case, [1932] A.C. 54 and the Radio case, [1932] A.C. 304), then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order and good government of Canada, though it may in another aspect touch on matters specially reserved to the provincial legislatures. War and pestilence, no doubt, are instances; so, too, may be the drink or drug traffic, or the carrying of arms. In Russell v. The Queen, 7 App. Cas. 829, Sir Montague Smith gave as an instance of valid Dominion legislation a law which prohibited or restricted the sale or exposure of cattle having a contagious disease. Nor is the validity of the legislation, when due to its inherent nature, affected because there may still be room for enactments by a provincial legislature dealing with an aspect of the same subject in so far as it specially affects that province.

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8 It is to be noticed that the Board in Snider's case, [1925] A.C. 398, nowhere said that Russell v. The Queen, 7 App. Cas. 829, was wrongly decided. What it did was to put forward an explanation of what it considered was the ground of the decision, but in their Lordships' opinion the explanation is too narrowly expressed. True it is that an emergency may be the occasion which calls for the legislation, but it is the nature of the legislation itself, and not the existence of emergency, that must determine whether it is valid or not. 9 The appellants' first contention is that Russell's case, 7 App. Cas. 829, was wrongly decided and ought to be overruled. Their Lordships do not doubt that in tendering humble advice to His Majesty they are not absolutely bound by previous decisions of the Board, as is the House of Lords by its own judgments. In ecclesiastical appeals, for instance, on more than one occasion, the Board has tendered advice contrary to that given in a previous case, which further historical research has shown to have been wrong. But on constitutional questions it must be seldom indeed that the Board would depart from a previous decision which it may be assumed will have been acted on both by governments and subjects. In the present case the decision now sought to be overruled has stood for over sixty years; the Act. has been put into operation for varying periods in many places in the Dominion; under its provisions businesses must have been closed, fines and imprisonments for breaches of the Act have been imposed and suffered. Time and again the occasion has arisen when the Board could have overruled the decision had it thought it wrong. Accordingly, in the opinion of their Lordships, the decision must be regarded as firmly embedded in the constitutional law of Canada, and it is impossible now to depart from it. Their Lordships have no intention, in deciding the present appeal, of embarking on a fresh disquisition as to relations between ss. 91 and 92 of the British North America Act, which have been expounded in so many reported cases; so far as the Canada Temperance Act, 1878, is concerned the question must be considered as settled once and for all. 10 The second contention of the appellants was that in 1927, when the statute now in force was enacted, there were no circumstances which enabled the Parliament of the Dominion to legislate anew. As has already been said, the Act of 1927 is, in all respects material for this appeal, identical in its terms with the Act of 1878, and also with the Act of 1886, which itself was a revised edition of 1878 and was the Act in force in 1896 when the case of Att.-Gen. for Ontario v. Att.-Gen. for the Dominion, [1896] A.C. 348, was heard. It was not contended that if the Act of 1878 was valid when it was enacted it would have become invalid later on by a change of circumstances, but it was submitted that as that Act and the Act of 1886 have been repealed, the Act of 1927 was new legislation and consequently circumstances must exist in 1927 to support the new Act. Then it was said (and this, apparently, was the opinion of Henderson J.A., who dissented from the other members of the Supreme Court of Ontario) that no circumstances could exist in 1927 to support the Act, in view of the legislation that had been passed in the provinces, including Ontario, for the regulation of the liquor traffic. Their Lordships do not find it necessary to consider the true effect either of s. 5 or s. 8 of the Act of 1924 for the revision of the Statutes of Canada, for they cannot agree that if the Act of 1878 was constitutionally within the powers of the Dominion Parliament it could be successfully contended that 168

the Act of 1927 which replaced it was ultra vires. The same ground is not covered by provincial legislation setting up a licensing system and making the sale of liquor a government monopoly. Moreover, if the subject-matter of the legislation is such that it comes within the province of the Dominion Parliament that legislature must, as it seems to their Lordships, have power to re-enact provisions with the object of preventing a recurrence of a state of affairs which was deemed to necessitate the earlier statute. To legislate for prevention appears to be on the same basis as legislation for cure. A pestilence has been given as an example of a subject so affecting, or which might so affect, the whole Dominion that it would justify legislation by the Parliament of Canada as a matter concerning the order and good government of the Dominion. It would seem to follow that if the Parliament could legislate when there was an actual epidemic it could do so to prevent one occurring and also to prevent it happening again. Once it has been decided that the Act of 1878 was constitutionally valid, it follows that an Act which replaces it and consolidates therewith the various amending Acts that have from time to time been enacted must be equally valid. It is to be noted that in 1896 Lord Watson's judgment, [1896] A.C. 348, appears to take it for granted that the position was in no way affected by the fact that the Act of 1878 had been repealed and replaced by the Act of 1886. 11 Accordingly, their Lordships are not prepared to hold either that Russell v. The Queen, 7 App. Cas. 829, was wrongly decided or that it has ceased to be a binding authority by reason that the Act of 1878 has been re-enacted in 1927. It is by repeal by the Dominion Legislature, and not by appeal to the Judicial Committee, that the enactment might cease to be effective. Their Lordships will humbly advise His Majesty that this appeal should be dismissed. There should be no costs awarded in respect of the appeal.

Johannesson v. Municipality of West St. Paul

[1952] 1 S.C.R. 292 Present: Rinfret C.J., and Kerwin, Taschereau, Kellock, Estey, Locke and Cartwright JJ. The judgment of Kellock and Cartwright, JJ. was delivered by: KELLOCK J.:--The question in this appeal is as to the constitutional validity of the following section of The Municipal Act, R.S.M. 1940, c. 141, namely, 921. Any municipal corporation may pass by-laws for licensing, regulating, and, within certain definite areas, preventing the erection, maintenance and continuance of aerodromes or places where aeroplanes are kept for hire or gain. Purporting to act under this legislation, the respondent municipality enacted a by-law prohibiting aerodromes in a defined area in the municipality and permitting aerodromes elsewhere in the municipality only upon license. The appellant, who holds an air transport license issued by the Air

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Transport Board of Canada to operate an air service at both the City of Winnipeg and the town of Flin Flon, has been operating a charter aeroplane service in Manitoba and Saskatchewan for some years, using mainly float and ski planes. For the purposes of his business, the appellant acquired an area in the respondent municipality having access to a stretch of the Red River. These premises were acquired having in view the requirements of the Department of Transport with respect to aerodromes, and it was subsequent to the appellant's acquisition that the by-law in question was passed. The appellant's motion for an order declaring the above legislation and by-law ultra vires was dismissed by the judge of first instance, and this order was affirmed by the Court of Appeal, Coyne J. A. dissenting. In this court, we were informed on behalf of the Attorney General of Canada that the convention under consideration in the Aeronautics case 63, was denounced by the Government of Canada as of April 4, 1947, on which date also the convention on International Civil Aviation, signed at Chicago on December 7, 1944, became effective. Insofar, therefore, as the above decision depends for efficacy upon s. 132 of the British North America Act, that foundation has ceased to exist. In the Aeronautics case, the Privy Council held that the "whole field of legislation in regard to aerial navigation belongs to the Dominion" by virtue of s. 132, s. 91 heads 2, 5 and 7, and the residuary power in s. 91 to make laws for the peace, order and good government of Canada. Their Lordships expressed the view also, at p. 73, that aeronautics was not a class of subject within property and civil rights, and at p. 77, that it was not a subject vested by specific words in the provinces. On the latter page, their Lordships went on to say: Further, their Lordships are influenced by the facts that the subject of aerial navigation and the fulfilment of Canadian obligations under s. 132 are matters of national interest and importance; and that aerial navigation is a class of subject which has attained such dimensions as to affect the body politic of the Dominion. It is true, as the judgment itself shows, and as later pronouncements of the judicial committee have repeated, that s. 132 was the leading consideration in the judgment. In the Radio Reference 64, the convention there in question was not one to which s. 132 was applicable, but, as pointed out by Lord Atkin in 1937 A.C. at p. 351, that convention dealt with classes of matters which did not fall within s. 92 but entirely within subject matters of Dominion jurisdiction under s. 91. In these circumstances, their Lordships said in the Radio case that, although the convention there in question was not such a treaty as fell within s. 132, it came to the same thing. At p. 313 Viscount Dunedin said: The result is in their Lordships' opinion clear. It is Canada as a whole which is amenable to the other powers for the proper carrying out of the convention; and to prevent individuals in Canada infringing the stipulations of the convention it is necessary that the Dominion should pass legislation which should apply to all the dwellers in Canada.

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To the extent, therefore, to which the subject matter of the Chicago convention of 1944 falls within s. 91, the language of Viscount Dunedin is equally apt. In my opinion, that subject matter is exclusively within Dominion jurisdiction. In my opinion, the subject of aerial navigation in Canada is a matter of national interest and importance, and was so held in 1932. In the Canada Temperance Federation case 65, Viscount Simon said at p. 205: In their Lordships' opinion, the true test must be found in the real subject matter of the legislation: if it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole (as, for example, in the Aeronautics case 66 and the Radio case 67), then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order and good government of Canada, though it may in another aspect touch on matters specially reserved to the provincial legislatures. This statement is a recognition of the situation which is well known and understood in this country. It was quite frankly and quite properly admitted by Mr. Fillmore for the respondent, whose argument was merely that the Dominion had not in fact legislated in the field of s. 921 of the provincial statute. It is no doubt true that legislation of the character involved in the provincial legislation regarded from the standpoint of the use of property is normally legislation as to civil rights, but use of property for the purposes of an aerodrome, or the prohibition of such use cannot, in my opinion, be divorced from the subject matter of aeronautics or aerial navigation as a whole. If that be so, it can make no difference from the standpoint of a basis for legislative jurisdiction on the part of the province that Parliament may not have occupied the field. Once the decision is made that a matter is of national interest and importance, so as to fall within the peace, order and good government clause, the provinces cease to have any legislative jurisdiction with regard thereto and the Dominion jurisdiction is exclusive. If jurisdiction can be said to exist in the Dominion with respect to any matter under such clause, that statement can only be made because of the fact that such matters no longer come within the classes of subject assigned to the provinces. I think, therefore, that as the matters attempted to be dealt with by the provincial legislation here in question are matters inseparable from the field of aerial navigation, the exclusive jurisdiction of Parliament extends thereto. The non-severability of the subject matter of "aerial navigation" is well illustrated by the existing Dominion legislation referred to below, and this legislation equally demonstrates that there is no room for the operation of the particular provincial legislation in any local or provincial sense. The Aeronautics Act, R.S.C. 1927, c. 3, as amended by c. 28 of the statutes of 1944-45, c. 9 of the statutes of 1945, and c. 23 of the statutes of 1950, provides in part as follows: 171

3. It shall be the duty of the Minister (a) to supervise all matters connected with aeronautics. * (f) to prescribe aerial routes. * * * * *

(1) to consider, draft and prepare for approval by the Governor in Council such regulations as may be considered necessary for the control or operation of aeronautics in Canada or within the limits of the territorial waters of Canada and for the control or operation of aircraft registered in Canada wherever such aircraft may be. * * *

4. (1) Subject to the approval of the Governor in Council, the Minister may make regulations to control and regulate air navigation over Canada and the territorial waters of Canada and the conditions under which aircraft registered in Canada may be operated over the high seas or any territory not within Canada, and, without restricting the generality of the foregoing, may make regulations with respect to * * *

(c) licensing, inspection and regulation of all aerodromes and air-stations. (d) the conditions under which aircraft may be used or operated. (e) the conditions under which goods, mails and passengers may be transported in aircraft and under which any act may be performed in or from aircraft or under which aircraft may be employed. (f) the prohibition of navigation of aircraft over such areas as may be prescribed, either at all times or at such times or on such occasions only as may be specified in the regulation, and either absolutely or subject to such exceptions or conditions as may be so specified. (g) the areas within which aircraft coming from any places outside of Canada are to land, and the conditions to be complied with by any such aircraft. (h) aerial routes, their use and control. (i) the institution and enforcement of such laws, rules and regulations as may be deemed necessary for the safe and proper navigation of aircraft in Canada or within the limits of the territorial waters of Canada and of aircraft registered in Canada wherever such aircraft may be. * * *

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(3) Every person who violates the provisions of a regulation is guilty of an offence and is liable on summary conviction to a fine not exceeding five thousand dollars, or to imprisonment for a term not exceeding one year or to both fine and imprisonment. (4) Every person who violates an order or direction of the Minister made under a regulation is guilty of an offence and is liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both fine and imprisonment. 12. (1) Subject to the approval of the Minister, the Board may issue to any person applying therefor a license to operate a commercial air service. * * *

(5) In issuing any license the Board may prescribe the routes which may be followed or the areas to be served and may attach to the license such conditions as the Board may consider necessary or desirable in the public interest, and, without limiting the generality of the foregoing, the Board may impose conditions respecting schedules, places of call, carriage of passengers and freight, insurance, and subject to the Post Office Act, the carriage of mail. * * *

15. (1) No person shall operate a commercial air service unless he holds a valid and subsisting license issued under section twelve. Regulations were passed under the authority of the above statute by P.C. 2129 of May 11, 1948. Part III deals with the subject matter of "airports." The following paragraphs are pertinent: 1. No area of land or water shall be used as an airport unless it has been licensed as herein, provided. 2. Licenses to airports may be issued by the Minister and may be made subject to such conditions respecting the aircraft which may make use of the airport, the maintenance thereof, the marking of obstacles in the vicinity which may be dangerous to flying and otherwise, as the Minister may direct. 4. The license of an airport may be suspended or cancelled by the Minister at any time for cause and shall cease to be valid two weeks after any change in the ownership of the airport, unless sooner renewed to the new owner. 5. Every licensed airport shall be marked by day and by night as may be from time to time directed by the Minister. 7. (1) No person shall without authority of the Minister-- (a) mark any unlicensed surface or place with any mark or display any signal calculated or likely to induce any person to believe that such surface or place is a licensed airport; 173

(b) knowingly use or permit the use of an airport for any purpose other than those for which it has been licensed. (2) The onus of proving the existence of any authority or license shall be upon the person charged. 8. No water-craft shall cross or go upon that part of the water area forming part of any airport which it is necessary to keep clear of obstruction in order that aircraft may take off and alight in safety, having regard to the wind and weather conditions at the time, and every person in charge of a water-craft is guilty of a breach of these regulations if such craft crosses or goes upon such area after reasonable warning by signal or otherwise. 9. There shall be kept at every licensed airport a register in which there shall be entered immediately after the alighting or taking off of an aircraft a record showing the nationality and registration marks of such aircraft, the name of the pilot, the hour of such alighting or taking off, the last point of call before such alighting and the intended destination of the aircraft. 10. (1) Every licensed airport, and all aircraft and goods therein shall be open to the inspection of any customs officer, immigration officer, officer or person holding or named in any Writ of Assistance or any officer of or other person authorized by the Minister, but no building used exclusively for purposes relating to the construction of aircraft or aircraft equipment shall be subject to inspection except upon the written order of the Minister. (2) All state aircraft shall have at all reasonable times, the right of access to any licensed airport, subject to the conditions of the license. In my opinion, just as it is impossible to separate intra-provincial flying from inter-provincial flying, the location and regulation of airports cannot be identified with either or separated from aerial navigation as a whole. The provincial legislation here in question must be held, therefore, to be ultra vires, and the by-law falls with it. The appeal should therefore be allowed. By agreement, no costs were asked or awarded in the courts below. I think, however, that the appellant should have his costs in this court as against the respondent, but that there should be no other costs. The concurring judgment of Taschereau and Estey, JJ. was delivered by ESTEY J. who said in part: It is then submitted that if aeronautics is within the legislative competence of the parliament of Canada, including the power to license and regulate aerodromes, it would not include the location and continuation of aerodromes which would be a provincial matter under Property and Civil rights. With great respect, it would appear that such a view attributes a narrower and more technical meaning to the word "aeronautics" than that which has been attributed to it generally in law and by those

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interested in the subject. Indeed, the definition adopted by mr Justice Dysart, as he found it in Corpus Juris, 2 C.J.S. 900, The flight and period of flight from the time the machine clears the earth to the time it returns successfully to the earth and is resting securely on the ground, contemplates the operation of the aeroplane from the moment it leaves the earth until it again returns thereto. This, it seems, in itself makes the aerodrome, as the place of taking off and landing, an essential part of aeronautics and aerial navigation. This view finds support in the fact that legislation in relation to aeronautics and aerial navigation, not only in Canada, but also in Great Britain and the United States, deals with aerodromes, as well as the conventions above mentioned. Indeed, in any practical consideration it is impossible to separate the flying in the air from the taking off and landing on the ground and it is, therefore, wholly impractical, particularly when considering the matter of jurisdiction, to treat them as independent one from the other. The submission that in the granting of the licence the sufficiency of the location will always be considered and might even be the controlling factor in the granting or refusing of a licence, in so far as it may be of assistance, emphasizes the importance of the location of the aerodrome and of the essential part the aerodrome plays in any scheme of aeronautics. Legislation which in pith and substance is in relation to the aerodrome is legislation in relation to the larger subject of aeronautics and is, therefore, beyond the competence of the Provincial Legislatures. It is submitted that s. 921 is zoning legislation, as that term is now understood in municipal legislation. The general provisions for the enactment of zoning by-laws are contained in ss. 904, 905 and 906 of this statute. As notwithstanding this general provision such legislation may be enacted under other sections, it is necessary to determine the nature and character of the provisions of s. 921. The foregoing ss. 904, 905 and 906 are typical of legislation authorizing zoning by-laws. The end and purpose of zoning legislation, as the name indicates, is to authorize the municipality to pass by-laws in respect of certain areas and make those areas subject to prohibitions and restrictions designed to provide uniformity within those particular areas. The Legislature, in enacting s. 921, provided that, without regard to the nature and character or the use and purpose made of the area, the municipality may prohibit entirely, or permit only under a licence issued by it, an aerodrome within certain areas. Such legislation is in pith and substance in relation to aerodromes and, therefore, in relation to aeronautics rather than to zoning. The appeal should be allowed with costs to the appellants, Konrad Johannesson and Holmfridur M. E. Johannesson, against the respondent municipality. LOCKE J. said in part: If the validity of the Aeronautics Act and the Air Regulations be conceded, it appears to me that this matter must be determined contrary to the contentions of the respondent. It is, however, desirable, in 175

my opinion, that some of the reasons for the conclusion that the field of aeronautics is one exclusively within Federal jurisdiction should be stated. There has been since the First World War an immense development in the use of aircraft flying between the various provinces of Canada and between Canada and other countries. There is a very large passenger traffic between the provinces and to and from foreign countries, and a very considerable volume of freight traffic not only between the settled portions of the country but between those areas and the northern part of Canada, and planes are extensively used in the carriage of mails. That this traffic will increase greatly in volume and extent is undoubted. While the largest activity in the carrying of passengers and mails east and west is in the hands of a government controlled company, private companies carry on large operations, particularly between the settled parts of the country and the North and mails are carried by some of these lines. The maintenance and extension of this traffic, particularly to the North, is essential to the opening up of the country and the development of the resources of the nation. It requires merely a statement of these well recognized facts to demonstrate that the field of aeronautics is one which concerns the country as a whole. It is an activity, which to adopt the language of Lord Simon in the Attorney General for Ontario v. Canada Temperance Federation 74, must from its inherent nature be a concern of the Dominion as a whole. The field of legislation is not, in my opinion, capable of division in any practical way. If, by way of illustration, it should be decided that it was in the interests of the inhabitants of some northerly part of the country to have airmail service with centres of population to the south and that for that purpose some private line, prepared to undertake such carriage, should be licensed to do so and to establish the southern terminus for their route at some suitable place in the Municipality of West St. Paul where, apparently, there is an available and suitable field and area of water where planes equipped in a manner enabling them to use the facilities of such an airport might land, it would be intolerable that such a national purpose might be defeated by a rural municipality, the Council of which decided that the noise attendant on the operation of airplanes was objectionable. Indeed, if the argument of the respondents be carried to its logical conclusion the rural municipalities of Manitoba through which the Red River passes between Emerson and Selkirk, and the City of Winnipeg and the Town of Selkirk might prevent the operation of any planes equipped for landing upon water by denying them the right to use the river for that purpose. RINFRET CJ and KERWIN J wrote concurring judgments.

Reference re: Anti-Inflation Act (Canada), 1976

[1976] 2 S.C.R. 373 Supreme Court of Canada Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ. REFERENCE BY THE GOVERNOR IN COUNCIL 176

The judgment of Laskin C.J. and Judson, Spence and Dickson JJ. was delivered by THE CHIEF JUSTICE:-- By order in Council P.C. 1976-581 dated March 11, 1976, the Governor General in Council invoked the authority conferred by s. 55 of the Supreme Court Act, R.S.C. 1970, c. S19 and referred the following two questions to this Court for its opinion:

1.

Is the Anti-Inflation Act, Statutes of Canada 1974-75-76, Chapter 75 (a copy of which Act and the Anti-Inflation Guidelines made thereunder are attached hereto as Annex "A") ultra vires the Parliament of Canada either in whole or in part, and, if so, in what particular or particulars and to what extent? If the Anti-Inflation Act is intra vires the Parliament of Canada, is the Agreement entitled "Between the Government of Canada and the Government of the Province of Ontario", entered into on January 13, 1976, (a copy of which is annexed hereto together with copies of the Orders of the Governor in Council and the Lieutenant Governor in Council as Annex "B") effective under the Anti-Inflation Act to render that Act binding on, and the AntiInflation Guidelines made thereunder applicable to, the provincial public sector in Ontario as defined in the Agreement.

2.

Attached to the Order of Reference as annex A were a copy of the Anti-Inflation Act and a copy of the Anti-Inflation Guidelines made thereunder; and attached as annex B were a copy of the agreement involved in the second question and copies of orders of the Governor General in Council and of the Lieutenant Governor in Council approving the entry into the agreement by the Governments of Canada and of Ontario which are the respective parties thereto. Nothing else appears in or is attached to the Order of Reference, The Bill which became the Anti-Inflation Act was introduced into the House of Commons on October 16, 1975 (notice having been given on October 14), and was passed on December 15, 1975, but with effect to a degree from October 14, 1975. Its long title and preamble are as follows: An Act to provide for the restraint of profit margins, prices, dividends and compensation in Canada WHEREAS the Parliament of Canada recognizes that inflation in Canada at current levels is contrary to the interests of all Canadians and that the containment and reduction of inflation has become a matter of serious national concern; AND WHEREAS to accomplish such containment and reduction of inflation it is necessary to restrain profit margins, prices, dividends and compensation; Its scope is indicated in ss. 3 and 4. Sufficient indication of that scope for the purposes of this Reference is provided by quoting s. 3(1), (2) and s. 4(1), (2), (3), (4). They are as follows: 3. (1) The Governor in Council may from time to time cause to be published and made known guidelines for the guidance of all Canadians in restraining profit margins, prices, dividends and compensation. 177

(2) The Governor in Council may, by regulation, establish guidelines for the restraint of (a) prices and profit margins of (i) public sector suppliers of commodities or services, (ii) private sector suppliers of commodities or services who employ five hundred or more persons in Canada, (iii) suppliers of services prescribed by the regulations to be professional services, (iv) persons carrying on business in the construction industry who employ twenty or more persons in Canada, and (v) private sector suppliers of commodities or services who are from time to time declared by order of the Governor in Council made on the recommendation of the Anti-Inflation Board pursuant to subsection 12(2) after an inquiry as provided for by that subsection, to be of strategic importance to the containment and reduction of inflation in Canada; (b) compensation of (i) employees of suppliers and persons whose prices or profit margins are subject to restraint in accordance with guidelines established pursuant to any of subparagraphs (a)(i), (ii), (iv) or (v), (ii) employees, who are members of a profession, of persons whose prices or profit margins are subject to restraint in accordance with guidelines established pursuant to subparagraphs (a)(iii), and (iii) all public sector employees not described in subparagraph (i) including, without restricting the generality of the foregoing, all Ministers of the Crown, all members of the Senate or House of Commons of Canada and all other persons holding public offices; and (c) dividends. ... [Laskin CJC relates the history of the proceedings, lists the interveners, and discusses the extrinsic evidence.] Although it is conceded that the Parliament of Canada could validly legislate as it has done if it had limited the legislation to the federal public service and to enterprises or undertakings which are within exclusive federal legislative authority, such as interprovincial transportation and communication services, radio operations, aerial navigation, atomic energy enterprises, banks and works declared to be for the general advantage of Canada, the Anti-Inflation Act embraces sectors of industry and of services, including employers and employees therein, which are admittedly subject in respect of their intraprovincial operation to provincial regulatory authority. I take it as undeniable that it would have been open to each Province to impose price and wage restraints in those sectors, to the extent to which there was no invasion of federal powers such as that in relation to the a regulation of trade and commerce. It is equally undeniable that each Province could have validly dealt with restraint of salaries and wages of persons in its public service....

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[....] In founding himself upon the federal general power to make laws for the peace, order and good government of Canada, the Attorney-General in his primary submission takes its scope to be that expounded by Viscount Simon in Attorney-General of Ontario v. Canada Temperance Federation [[1946] A.C. 193.].... [Laskin CJC examines the case law at length.] Since there was, in general, a concession by those opposing the legislation that it would be valid if it were what I may call crisis legislation, and since the proponents of the legislation urged this as an alternative ground on which its validity should be sustained, it appears to me to be the wise course to consider first whether the Anti-Inflation Act can be supported on that footing. If it is sustainable as crisis legislation, it becomes necessary to consider the broader ground advanced in its support, and this because, especially in constitutional cases, Courts should not, as a rule, go any farther than is necessary to determine the main issue before them. The competing arguments on the question whether the Act is supportable as crisis legislation raised four main issues: (1) Did the Anti-Inflation Act itself belie the federal contention because of the form of the Act and, in particular, because of the exclusion of the provincial public sector from its imperative scope, notwithstanding that it is framed as a temporary measure albeit subject to extension of its operation? (2) Is the federal contention assisted by the preamble to the statute? (3) Does the extrinsic evidence put before the Court, and other matters of which the Court can take judicial notice without extrinsic material to back it up, show that there was a rational basis for the Act as a crisis measure? (4) Is it a tenable argument that exceptional character could be lent to the legislation as rising beyond local or provincial concerns because Parliament could reasonably take the view that it was a necessary measure to fortify action in other related areas of admittedly federal authority, such as that of monetary policy? I have referred to the first of these issues earlier in these reasons. It goes to the form of the AntiInflation Act and to the question whether the scope of the compulsory application of the Anti-Inflation Act may be taken to indicate that the Parliament of Canada did not act through any sense of crisis or urgency in enacting it. I note that the federal public service, a very large public service, is governed by the Act and the Guidelines, that private employers of five hundred or more persons are subject to the Act and Guidelines, that the construction industry is particularly dealt with by making those who employ twenty or more persons in that industry subject to the Act and Guidelines and that the Act and Guidelines apply also to persons in various professions, including architects, accountants, dentists, engineers, lawyers, doctors and management consultants. Again, the Act provides for bringing within the Act and Guidelines businesses, irrespective of numbers employed, which are declared by order in council to be of strategic importance to the containment and reduction of inflation in Canada. Having regard to the enormous administrative problems which the programme entails, the coverage is

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comprehensive indeed in its immediately obligatory provisions. What is left out of compulsory coverage is the provincial public sector, including the municipal public sector, but provision is made for bringing this area into the programme under the Guidelines by agreements under s. 4(3) or s. 4(4) or s. 5. I do not regard the provisions respecting the provincial public sector as an indicator that the Government and Parliament of Canada were not seized with urgency or manifested a lack of any sense of crisis in the establishment of the programme. Provincial government concern about rising inflation and concurrent unemployment was a matter of public record prior to the inauguration of the programme, and this Court was provided with copies of agreements that eight of the ten Provinces had made with the federal Government or the application therein of the federal Guidelines. Only British Columbia and Saskatchewan had not entered into agreements. With private industry and private services bound to the extent at they are, and with the federal public service in so bound, I see it as a reasonable policy from the standpoint of administration to allow the Provinces contract into the programme in respect of the provincial public sector under their own administration if this was their preference rather than by simply accepting, as they could, the federal administration. Since the "contracting in" is envisaged on the basis of the federal Guidelines the national character of the programme is underlined. One of the submissions made by counsel for Secondary School Teachers' organizations concerned provincial co-operation, but it was put in terms of an objection to the validity of the federal legislation, the proposition being that inflation was too sweeping a subject to be dealt with by a single authority, i.e., the federal Parliament, and that the proper constitutional approach, at least as a first approach, was through federal-provincial co-operation in terms of their respective powers under the respective enumerations in ss. 91 and 92. If this is meant to suggest that Parliament cannot act in relation to inflation even in a crisis situation, I must disagree. No doubt, federal-provincial co-operation along the lines suggested might have been attempted, but it does not follow that the federal policy that was adopted is vulnerable because a co-operative scheme on a legislative power basis was not tried first. Co-operative federalism may be consequential upon a lack of federal legislative power, but it is not a ground for denying it. I appreciate that Viscount Haldane espoused co-operative federalism in the Board of Commerce case (see [1922] 1 A.C. 191, at p. 201) but that was to relieve against a lack of federal power. Moreover, when he came to consider the propriety of the federal legislation in the Fort Frances case, he noted that the situation that had to be dealt with "is not one that can be reliably provided for by depending on collective action of the Legislatures of the individual Provinces agreeing for the purpose (see [1923] A.C. 695, at p. 704). The Attorney-General of Canada relied upon the preamble to the Anti-Inflation Act both in respect of his primary argument and in respect of his alternative argument. He emphasized the words therein "that the containment and reduction of inflation has become a matter of serious national 180

concern" and as well the following words that "to accomplish such containment and reduction of inflation it is necessary to restrain profit margins, prices, dividends and compensation" (the underlined words were especially emphasized). I do not regard it as telling against the Attorney-General's alternative position that the very word "emergency" was not used. Forceful language would not carry the day for the Attorney-General of Canada if the circumstances attending its use did not support the constitutional significance sought to be drawn from it. Of course, the absence of any preamble would weaken the assertion of crisis conditions, and I have already drawn attention to the fact that no preamble suggesting a critical economic situation, indeed no preamble at all was included in the legislation challenged in the Board of Commerce case. The preamble in the present case is sufficiently indicative that Parliament was introducing a farreaching programme prompted by what in its view was a serious national condition. The validity of the Anti-Inflation Act does not, however, stand or fall on that preamble, but the preamble does provide a base for assessing the gravity of the circumstances which called forth the legislation. This brings me to the third of the four issues above-mentioned, namely, the relevancy and weight of the extrinsic evidence and the assistance to be derived from judicial notice. When, as in this case, an issue is raised that exceptional circumstances underlie resort to a legislative power which a may properly be invoked in such circumstances, the Court may be asked to consider extrinsic material bearing on the circumstances alleged, both in a support of and in denial of the lawful exercise of legislative authority. In considering such material and assessing its weight, the Court does not look at it in terms of whether it provides proof of the exceptional circumstances as a matter of fact. The matter concerns social and economic policy and hence governmental and legislative judgment. It may be that the existence of exceptional circumstances is so notorious as to enable the Court, of its own motion, to take judicial notice of them with out reliance on extrinsic material to inform it. Where this is not so evident, the extrinsic material need go only so far as to persuade the Court that there is a rational basis for the legislation which it is attributing to the head of power invoked in this ease in support of its validity. There is before this Court material from Statistics' Canada, upon which the Court is justified in relying, which, proceeding from a base of 100 in 1971, shows that the purchasing power of the dollar dropped to 0.78 by September, 1974 and 0.71 in September, 1975. On the same base, the cost of living index rose to 127.9 by September, 1974 and to 141.5 by September, 1975, with food, taken alone, and weighted at 28 per cent of all the items taken into calculation, showing a rise to 147.3 in September, 1974 and 166.6 in September, 1975. These are figures from the Consumer Price Index monitored by Statistics Canada, and I note that Professor Lipsey in his study states that "the measure [of inflation] that is of most direct relevance to the person in the street is the rate of inflation of the CPI". He defines inflation as "a monetary phenomenon in the sense that a rise in the price level is the same thing as a fall in, the value of money (i.e. a fall in its purchasing power)". What the Consumer Price Index shows, and Professor Lipsey himself relies on its figures, is that for the first time in many years Canada had a

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double digit inflation rate for successive years, i.e., in 1974 and 1975, the Index rising 10.9 per cent in 1974 above its reading for 1973 and being 10.8 per cent higher in 1975 than it was in 1974. Some monthly drops slightly below double digit rises do not materially affect the relevance of the annual figures. There have been inflationary periods before in our history but, again referring to Professor Lipsey's study, "the problem of the coexistence of high unemployment and high inflation rates was not, however, encountered before the late 1960's". These twin conditions continued to the time that the Government and Parliament acted in establishing policy under its prices and incomes the Anti-Inflation Act and Guidelines, and were the prime reason for the policy. Among the submissions in opposition to the contention of crisis was an assertion that the Government and Parliament did not act upon the phenomenon of concurrent rising inflation and rising unemployment when they were first discerned, nor even after they began to persist. I do not see that this is an answer to the issue if those conditions were still apparent when Parliament chose to act. Its judgment as to the appropriate time for intervening as it did may be open to political or economic contestation, but I cannot agree that by waiting for some time before acting the Government and Parliament can be said by the Court to have disentitled themselves to rely upon the power to legislate as Parliament did for the peace, order and good government of Canada. There is another consideration that arises from the submissions, particularly those of the Canadian Labour Congress, in opposition to the validity of the Anti-Inflation Act as a measure justified by crisis circumstances. The consideration I refer to is based on Professor Lipsey's study and on his conclusion that the policy adopted in the Anti-Inflation Act is not one that can, on the basis of experience elsewhere and on his appraisal as an economist, be expected to reduce the rate of inflation by more than one to two per cent. The answer to this submission is simple, and it is an answer that has been consistently given by the Courts, namely, that the wisdom or expendiency or likely success of a particular policy expressed in legislation is not subject to judicial review. Hence, it is not for the Court to say in this case that because the means adopted to realize a desirable end, i.e., the containment and reduction of inflation in Canada, may not be effectual, those means are beyond the legislative power of Parliament. I would not exclude the possibility that the means chosen to deal with an alleged evil may be some indicator of whether that evil exists as a foundation for legislation. Professor Lipsey is candid enough to say in his study that whether "a problem is serious enough to be described as a crisis must be partly a matter of judgment". The general question to which his study is directed is, to use his words, "could an economist say that the Canadian economy faced an economic crisis, or was in a critical situation, in October 1975?" He answers this question in the negative on the basis, inter alia, of comparative assessment of different periods, and he is supported in this view by many other economists. The Court cannot, however, be concluded by the judgment of an economist, distinguished as he is in the opinion of his peers, on a question of the validity of the exercise of the legislative power 182

invoked in this case. The economic judgment can be taken into account as an element in arriving at an answer to the question whether there is a rational basis for the governmental and legislative judgment exercised in the enactment of the Anti-Inflation Act. It cannot determine the answer. In my opinion, this Court would be unjustified in concluding, on the submissions in this case and on all the material put before it, that the Parliament of Canada did not have a rational basis for regarding the Anti-Inflation Act as a measure which, in its judgment, was temporarily necessary to meet a situation of economic crisis imperilling the well-being of the people of Canada as a whole and requiring Parliament's stern intervention in the interests of the country as a whole. That there may have been other periods of crisis in which no similar action was taken is beside the point. The rationality of the judgment so exercised is, in my view, supported by a consideration of the fourth of the issues which I enumerated above. The fact that there had been rising inflation at the time federal action was taken, that inflation is regarded as a monetary phenomenon and that monetary policy is admittedly within exclusive federal jurisdiction persuades me that the Parliament of Canada was entitled, in the circumstances then prevailing and to which I have already referred, to act as it did from the springboard of its jurisdiction over monetary policy and, I venture to add, with additional support from ifs power in relation to the regulation of trade and commerce. The Government White Paper refers to a prices and incomes policy as one element in a four-pronged programme of which the first engages its fiscal and monetary authority; and although the White Paper states that the Government rejects the use of severe monetary and fiscal restraints to stop inflation because of the alleged heavy immediate cost in unemployment and foregone output, it could seek to blend policies in those areas with a prices and incomes policy under the circumstances revealed by the extrinsic material. Since no argument was addressed to the trade and commerce power I content myself with observing only that it provides the Parliament of Canada with a foothold in respect of "the general regulation of trade affecting the whole dominion", to use the words of the Privy Council in Citizens Insurance Co. v. Parsons [(1881), 7 App. Cas. 96.], at p. 113. The Anti-Inflation Act is not directed to any particular trade. It is directed to suppliers of commodities and services in general and to the public services of governments, and to the relationship of those suppliers and of the public services to those employed by and in them, and to their overall relationship to the public. With respect to some of such suppliers and with respect to the federal public service, federal legislative power needs no support from the existence of exceptional circumstances to justify the introduction of a policy of restraint to combat inflation. The economic interconnection with other suppliers and with provincial public services, underlined by collective bargaining conducted by, or under the policy umbrella of trade unions with Canada-wide operations and affiliations, is a matter of public general knowledge of which the Court can take judicial notice. The extrinsic material does not reveal any distinction in the operation and effect of inflation in respect of those economic areas which are ordinarily within and those ordinarily 183

outside of effective federal regulatory control. In enacting the Anti-Inflation Act as a measure for the peace, order and good government of Canada, Parliament is not opening an area of legislative authority which would otherwise have no anchorage at all in the federal catalogue of legislative powers but, rather, it is proceeding from legislative power bases which entitle it to wage war on inflation through monetary and fiscal policies and entitle it to embrace within the Anti-Inflation Act some of the sectors covered thereby but not all. The circumstances recounted above justify it in invoking its general power to extend its embrace as it has done. For all the foregoing reasons, would hold that the Anti- Inflation Act is valid legislation for the a peace, order and good government of Canada and does not, in the circumstances under which it was enected and having regard to its temporary character, invade provincial legislative jurisdiction. It is own to this Court to say, at some future time, as it in effect said in the Margarine case [ [1949] S.C.R. 1; aff'd [1951] A.C. 179.], that a statutory provision valid in its application under circumstances envisaged at the time of its enactment can no longer have a constitutional application to different circumstances under which it would, equally, not have been sustained had they existed at the time of its enactment. [Finally, Laskin CJC holds that the Act was not conditional legislation and that the executive branch of the government of Ontario had no power to change the law of Ontario by means of a contract.] BEETZ J. (dissenting):-- The first of the two questions referred to this Court for its opinion, relates to the constitutional validity of the Anti-Inflation Act. Two main submissions were advanced in support of the Act The Chief Justice whose reasons I have had the advantage of reading takes the view that the Act is valid on the basis of the second submission and he does not express an opinion with respect to the first. As my conclusions differ from those of the Chief Justice on the second submission, I find it necessary to deal with both. My task on the other hand is lightened since the Chief Justice quotes the two questions referred to us, the relevant parts of the Act and so many of the authorities. [Beetz J discusses the case law.] The "containment and reduction of inflation" does not pass muster as a new subject matter. It is an Aggregate of several subjects some of which form a substantial part of provincial jurisdiction. It is totally lacking in specificity. It is so pervasive that it knows no bounds. Its recognition as a federal head of power would render most provincial powers nugatory. I should add that inflation is a very ancient phenomenon, several thousands years old, as old probably as the history of currency. The Fathers of Confederation were quite aware of it. It was argued that other heads of power enumerated in s. 91 of the Constitution and which relate for example to the regulation of trade and commerce, to currency and coinage, to banking, incorporation of banks and the issue of paper money may be indicative of the breadth of Parliament's jurisdiction in economic matters. They do not enable Parliament to legislate otherwise than in relation to their objects and it was not argued that the Anti-Inflation Act was in relation to their objects. The 184

Act does not derive any assistance from those powers any more than the legislation found invalid in the Board of Commerce case. For those reasons, the first submission fails. -IIThe second submission made in support of the validity of the Anti-Inflation Act is that the inflationary situation was in October of 1975 and still is such as to constitute a national emergency of the same significance as war, pestilence or insurrection and that there is in Parliament an implied power to deal with the emergency for the safety of Canada as a whole; that such situation of exceptional necessity justified the enactment of the impugned legislation. The following cases, amongst others, were relied upon: Fort Frances Pulp and Power Co. v. Manitoba Free Press [[1923] A.C. 695.]; Co-operative Committee on Japanese Canadians v. Attorney General for Canada [[1947] A.C. 87.]; Reference as to the Validity of the Wartime Leasehold Regulations [ [1950] S.C.R. 124.]. Before I deal with this second submission I should state at the outset that I am prepared to assume the validity of the following propositions: --the power of Parliament under the national emergency doctrine is not confined to war situations or to situations of transition from war to peace; an emergency of the nature contemplated by the doctrine may arise in peace time; --inflation may constitute such an emergency; --Parliament may validly exercise its national emergency powers before an emergency actually occurs; a state of apprehended emergency or crisis suffices to justify Parliament in taking preventive measures including measures to contain and reduce inflation where inflation amounts to state of apprehended crisis. In order to decide whether the Anti-Inflation Act is valid as a national emergency measure, one must first consider the way in which the emergency doctrine operates in the Canadian Constitution; one must find, in the second place whether the Anti-Inflation Act was in fact enacted on the basis that it was a measure to deal with a national emergency in the constitutional sense. In referring to the emergency doctrine, the Judicial Committee has sometimes used expressions which would at first appear to indicate that there is no difference between the national dimension or national concern doctrine and the emergency doctrine, the latter being but an instance of the first, or that the distribution of powers between Parliament and the provincial legislatures is not altered by a state of emergency, or again that when Parliament deals with a matter which in normal times would be an exclusively provincial matter, it does so under a federal aspect or in a new relation which lies outside of s. 92 of the Constitution. Counsel for Canada and for Ontario have relied upon them for the proposition that the difference between the national concern doctrine and the emergency doctrine is one of semantics,

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which perhaps explains why the Ontario factum does not support the validity of the Anti-Inflation Act on the basis of an emergency although Counsel for Ontario said that his position did not, because of that reason of semantics, differ from that of Counsel for Canada. The latter insisted that the difference between the two doctrines is only one of form but made two separate submissions based on each of the two doctrines. I disagree with the proposition that the national concern or national dimension doctrine and the emergency doctrine amount to the same. Even if it could be said that "where an emergency exists it is the emergency which gives the matter its dimension of national concern or interest" (LeDain, op. cit. p. 291) the emergency does not give the matter the same dimensions as the national concern doctrine applied for instance in the Aeronautics case, in the Johannesson case or in the Munro case. The national concern doctrine illustrated by these cases applies in practice as if certain heads such as aeronautics or the development and conservation of the national capital were added to the categories of subject matters enumerated in s. 91 of the Constitution when it is found by the Courts that, in substance, a class of subjects not enumerated in either s. 91 or s. 92 lies outside the first fifteen heads enumerated in s. 92 and is not of a merely local or private nature. Whenever the national concern theory is applied, the effect is permanent although it is limited by the identity of the subject newly recognized to be of national dimensions. By contrast, the power of Parliament to make laws in a great crisis knows no limits other than those which are dictated by the nature of the crisis. But one of those limits is the temporary nature of the crisis. In my view, the verbal precautions taken by the Judicial Committee in the Fort Frances case, pp. 704 to 706, and in other cases reflect its concern over the fact that a power of such magnitude as the national emergency power had to be inferred. But further passages, some of which are even to be found in the very judgments which in other parts appear to say the contrary, make clear that, in practice, the emergency doctrine operates as a partial and temporary alteration of the distribution of powers between Parliament and the Provincial Legislatures. Thus, in the Fort Frances case, where the emergency doctrine was first applied, and the language of which is otherwise so guarded, Viscount Haldane said, at p. 704: "The general control of property and civil rights for normal purposes remains with the Provincial Legislatures. But questions may arise by reason of the special circumstances of the national emergency which concern nothing short of the peace, order and good government of Canada as a whole". The implication is inescapable that the control of property and civil rights for purposes other than normal purposes may pass to Parliament, because of the emergency. But it remains a control of property and civil rights in the provinces.

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Later, in the same case, and more tellingly, Viscount Haldane referred to the end of a crisis and had this to say: "In such a case the law as laid down for the distribution of powers in the ruling instrument "(the Constitution)" would have to be invoked". p. 706. Therefore, the law as laid down for the distribution of powers in the ruling instrument could not be invoked during the crisis. In the Labour Conventions case [[1937] A.C. 326.], at p. 353, Lord Atkin referred to the emergency doctrine and wrote that the circumstances of that case were far from "the conditions which may override the normal distribution of powers in ss. 91 and 92". The same words were repeated by Lord Morton of Henryton in Canadian Federation of Agriculture v. Attorney General for Quebec [[1951] A.C. 179.], at p. 198. In the Japanese Canadians case, Lord Wright wrote at p. 101: "if it be clear that an emergency has not arisen, or no longer exists, there can be no justification for the exercise or continued exercise of the exceptional powers. The rule of law as to the distribution of powers between the Parliaments (sic) of the Dominion and the Parliaments of the Provinces comes into play". In Reference re Wartime Leasehold Regulations [ [1950] S.C.R. 124.], at p. 130, Rinfret J., as he then was, characterized the impugned regulations as follows: There is no doubt that under normal conditions the subject matter of rents belongs to the provincial jurisdiction under the Head of Property and Civil Rights, in Section 92 of The British North America Act. There is equally no doubt that under abnormal conditions, such as the existence of war, parliament may competently assume jurisdiction over rents. It is true, however, that other members of the Court used less plain language in that case. Perhaps it does not matter very much whether one chooses to characterize legislation enacted under the emergency power as legislation relating to the emergency or whether one prefers to consider it as legislation relating to the particular subject matter which it happens to regulate. But if one looks at the practical effects of the exercise of the emergency power, one must conclude that it operates so as to give to Parliament for all purposes necessary to deal with the emergency, concurrent and paramount jurisdiction over matters which would normally fall within exclusive provincial jurisdiction. To that extent, the exercise of that power amounts to a temporary pro tanto amendment of a federal Constitution by the unilateral action of Parliament. The legitimacy of that power is derived from the Constitution: when the security and the continuation of the Constitution and of the nation are at stake, the kind of power commensurate with the situation "is only to be found in that part of the Constitution which establishes power in the State as a whole". (Viscount Haldane in the Fort Frances case, p. 704).

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The extraordinary nature and the constitutional features of the emergency power of Parliament dictate the manner and form in which it should be invoked and exercised. It should not be an ordinary manner and form. At the very least, it cannot be a manner and form which admits of the slightest degree of ambiguity to be resolved by interpretation. In cases where the existence of an emergency may be a matter of controversy, it is imperative that Parliament should not have recourse to its emergency power except in the most explicit terms indicating that it is acting on the basis of that power. Parliament cannot enter the normally forbidden area of provincial jurisdiction unless it gives an unmistakable signal that it is acting pursuant to its extraordinary power. Such a signal is not conclusive to support the legitimacy of the action of Parliament but its absence is fatal. It is the duty of the courts to uphold the Constitution, not to seal its suspension, and they cannot decide that a suspension is legitimate unless the highly exceptional power to suspend it has been expressly invoked by Parliament. Also, they cannot entertain a submission implicitly asking them to make findings of fact justifying even a temporary interference with the normal constitutional process unless Parliament has first assumed responsibility for affirming in plain words that the facts are such as to justify the interference. The responsibility of the Courts begins after the affirmation has been made. If there is no such affirmation, the Constitution receives its normal application. Otherwise, it is the Courts which are indirectly called upon to proclaim the state of emergency whereas it is essential that this be done by a politically responsible body. We have not been referred to a single judicial decision, and I know of none, ratifying the exercise by Parliament of its national emergency power where the constitutional foundation for the exercise of that power had not been given clear utterance to. And, apart from judicial decisions, I know of no precedent where it could be said that Parliament had attempted to exercise such an extraordinary power by way of suggestion or innuendo. The use of the national emergency power enables Parliament to override provincial laws in potentially every field: it must be explicit. This is not to say that Parliament is bound to use ritual words. Words such as "emergency" are not necessarily required and they may indeed be used in a non constitutional sense since Parliament can enact emergency or urgent legislation in fields prima facie coming within its normal authority. Thus the Maritime Transportation Union Trustee Act, 1963 (Can.), c. 17, referred in its preamble to a report indicating: "that within the shipping industry in Canada [an emergency situation has developed that endangers navigation and shipping on the St. Lawrence Seaway with a consequent threat to the economy of Canada], the international relations of Canada, and peace, order and good government on the St. Lawrence Seaway, and in the ports and on the sea coasts of Canada". [Emphasis added.]

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In such cases, urgent or emergency legislation is enacted by Parliament under its ordinary powers. What is required from Parliament when it purports to exercise its extraordinary emergency power in any situation where a dispute could arise as to the existence of the emergency and as to the constitutional foundation of its action, is an indication, I would even say a proclamation, in the title, the preamble or the text of the instrument, which cannot possibly leave any doubt that, given the nature of the crisis, Parliament in fact purports to act on the basis of that power. The statutes of Canada and the Canada Gazette contain several examples of laws, proclamations and orders-in-council which leave room for no doubt that they have been enacted pursuant to the exceptional emergency power of Parliament, or issued or passed under the authority of an act of Parliament enacted by virtue of that power. Those dealing with wartime or post wartime conditions usually present no difficulty given the global aspect of modern warfare, the total conscription of activities which it is susceptible to impose upon nations, and the general recognition of the factual situation. The trigger of the War Measures Act, R.S.C. 1970, c. W-2, is the issuance of a proclamation declaring a state of war or a state analogous to war. The National Emergency Transitional Powers Act, 1945 (Can.), c. 25, and The Continuation of Transitional Measures Act, 1947 (Can.), c. 16, both affirmed the continuation of a national emergency. The Emergency Powers Act, 1951, R.S.C. 1952, c. 96, enacted during the Korean war affirmed the existence of an international emergency threatening the security of Canada. Other measures have dealt with peace time emergencies. The Energy Supplies Emergency Act, 1973-74 (Can.), c. 52, apparently as yet unproclaimed, has a long title: An Act to provide a means to conserve supplies of petroleum products within Canada [during periods of national emergency] caused by shortages or market disturbances [affecting the] national security and welfare and the economic stability of Canada, and to amend the National Energy Board Act. [Emphasis added] It empowers the Executive to proclaim the state of emergency and to authorize a program for the mandatory allocation of petroleum products within Canada. Needless to say, I express no view as to the constitutionality of those measures, but I quote them as illustrations of cases where there could be no uncertainty as to the constitutional basis upon a which Parliament had purported to act. The Anti-Inflation Act fails in my opinion to pass the test of explicitness required to signal that it has been enacted pursuant to the national emergency power of Parliament. The preamble has been much relied upon: WHEREAS the Parliament of Canada recognizes that inflation in Canada at current levels is contrary to the interests of all Canadians and that the containment and a reduction of inflation has become a matter of serious national concern;

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AND WHEREAS to accomplish such containment and reduction of inflation it is necessary to restrain profit margins, prices, dividends and compensation; The words "a matter of serious national concern" have been emphasized. I remain unimpressed. The death penalty is a matter of national concern. So is abortion. So is the killing or maiming of innumerable people by impaired drivers. So is the traffic in narcotics and drugs. One can conceive of several drastic measures, all coming within the ordinary jurisdiction of the Parliament of Canada, and which could be preceded by a preamble reciting that a given situation had become a matter of serious national concern. I fail to see how the adding of the word "serious" can convey the meaning that Parliament has decided to embark upon an exercise of its extraordinary emergency power. The Canada Water Act, 1969-70 (Can.), c. 52 on the constitutionality of which, again, I refrain from expressing any view, contains a preamble where it is stated that pollution of the water resources of Canada has become "a matter of urgent national concern". Is the Canada Water Act an emergency measure in the constitutional sense? It does not seem to present itself as such. How is a matter of serious national concern to be distinguished from a matter of urgent national concern? I cannot read the preamble of the Anti-Inflation Act as indicating that the act was passed to deal with a national emergency in the constitutional sense. Counsel for Canada has also insisted upon the temporary nature of the Anti-Inflation Act. I note that the duration of the act could, under s. 46, be extended by order-in-council with the approval of both Houses of Parliament, although I am not inclined to attach undue importance to this point. Nonetheless, while it would be essential to the validity of a measure enacted under the national emergency power of Parliament that it be not permanent, still the temporary character of an act is hardly indicative and in no way conclusive that it constitutes a measure passed to deal with a national emergency: Parliament can and often does enact temporary measures relating to matters coming within its normal jurisdiction. I have dealt with the arguments based on the preamble and the limited, duration (s. 46) of the Anti-Inflation Act. There is nothing in the rest of the Act and in the Guidelines to show that they have been passed to deal with a national emergency. There is much, on the other hand, within the Act and the Guidelines, in terms of actual or potential exemptions which is inconsistent with the nature of a global war launched on inflation considered as a great emergency. It would not be within our province to judge the efficacy and wisdom of the legislation if it were truly enacted to deal with an extraordinary crisis but its lack of comprehensiveness may be indicative of its ordinary character. Under s. 4(2)(a) and (b) of the Guidelines, the provisions to restrain prices and profit margins do not apply to the sale of unprocessed agricultural food or feed products by the original producer

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thereof nor to the sale of unprocessed fish and fish products by a fisherman. Thus the majority of farmers and fishermen are exempted from the Guidelines and their prices are passed on to processors, wholesalers, retailers and consumers of food. As indicated in the policy statement tabled in the House of Commons by the Minister of Finance the provinces are asked to undertake a program of rent control but they remain free to do as they please in this field. Rents are an important element of the cost of living and were centrally controlled during the national emergency of the last World War. Under s. 4(2) of the Anti-Inflation Act, the guidelines for the restraint of prices and profit margins do not apply to the private sector suppliers of commodities and services who employ less than five hundred persons in Canada nor to persons carrying on business in the construction industry who employ less than twenty persons in Canada and the Guidelines for the restraint of compensation do not apply to the employees of those suppliers and contractors. We have not been provided with figures which would indicate the magnitude of this exemption, but I would venture to say that it involves at least several hundred thousand persons. Furthermore, and although the federal public sector is governed by the Anti-Inflation Act, by Order-in-Council P.C. 1976-176, dated January 27, 1976, the Government of Canada has amended the Guidelines and exempted from the price and profits restraints the federal public sector except seventeen Crown Corporations and agencies. Also, the Anti-Inflation Act does not apply to the provincial public sector except by provincial consent. The provincial public sector is a most substantial one as it comprises all provincial offices, all municipal offices, all public bodies performing a function of government in the provinces and all other bodies as provide what are generally considered to be public services. These would presumably include all the public education institutions, all public hospitals, all public producers of energy, etc. A province which opts into the scheme of the Anti-Inflation Act may do so for only part of the Guidelines to only part of the provincial public sector. It may be argued that those exemptions and options were put into the Act and the Guidelines in order to make their administration lighter and easier or as a matter of federal-provincial comity. Still, a situation of national emergency does not, at first sight, lend itself to opting in and opting out formulae nor to large scale exemptions. We have been invited to go outside the Act and the Guidelines and consider extrinsic evidence and take judicial notice of facts of public knowledge. It is a fact for instance that provincial governments were seriously concerned about rising inflation and that eight of the ten provinces have entered into agreements with the Government of Canada for the application of the federal Guidelines. But I cannot regard that concern and these agreements as a recognition that Parliament was acting under its national emergency power when it enacted the Anti-Inflation Act. Only Parliament, or under a law of Parliament, the Government of Canada, can assume responsibility for declaring a state of national emergency; it would be delicate and 191

probably unwarranted for the Courts to count provinces and to evaluate the degree of provincial support in such a matter. However, to the extent that it may be thought that provincial support was forthcoming in this case, it should be recalled that five of the ten provinces chose not to take part in the proceedings; of the five that did take part, two, British Columbia and Alberta, conceded that Parliament had the authority to enact legislation such as the Anti-Inflation Act in a state of national emergency but argued that the Act was invalid as there was no evidence that an emergency existed; two provinces, Quebec and Saskatchewan, made the same concession but took no position as to whether the Act was valid on an emergency basis; the remaining province, Ontario, supported the validity of the Act since there Was no distinction, in the opinion of its counsel, between the emergency basis and the other main basis upon which Ontario pleaded in favour of the Act. In the result, we are left with a federal statute which in no way refers to a situation of national emergency supported by one province whose support was qualified by the opinion that national emergency is synonymous with national concern. We were provided with a wealth of extrinsic material the consideration of which, it was expected, would enable us to make a finding of fact as to whether or not inflation had reached a level which justified Parliament's reliance on its extraordinary power or as to whether or not there was a rational basis for Parliament to judge that it could rely upon that power. I do not reach that point, of course, since I hold the view that Parliament did not rely upon its extraordinary power. It seems to me however that, if we are entitled to look at extrinsic material such as a policy statement tabled in the House of Commons by the Minister of Finance, statistics, an economic study, a speech delivered by the Governor of the Bank of Canada, it is not improper for us to read Hansard in this case, in order not to construe and apply the provisions of the Anti-Inflation Act, but to ascertain its constitutional pivot. A perusal of the Debates reveals that between October 14, 1975, when the policy statement was tabled,-the Anti-Inflation Bill C-73 was read for the first time in the Commons on October 16, 1975, and the third reading and the passing of the bill in the Senate on December 10, 1975, the question was raised repeatedly in both Houses and in Committee as to what was the constitutional foundation of the bill and as to whether it was not necessary expressly to declare a state of emergency in order to insure its constitutionality. The replies vary but slightly; their general tenor is to the effect that Parliament has jurisdiction to pass the bill as drafted under the peace, order and good government power-- which is rather unrevealing--in addition to other specific federal powers enumerated in s. 91 of the Constitution. The closest that a Minister comes to referring to an emergency is in reply to the question whether it was the government's position that conditions of real emergency did exist at that moment. The answer given by the Acting Prime Minister is as follows: "... the legislation now before the House rests, in part at least, upon the peace, order and good government clause in the Constitution, and therefore in that sense there is an emergency". Commons Debates, October 22, 1975, p. 8440.

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This however is qualified by a statement made the same day by the same Minister in reply to a suggestion that it was necessary that the bill be explicit with respect to the mention of a national emergency. The statement reads as follows: Mr. Speaker, when this bill was being drafted the government had the advice of the law officers of the Crown who advised us that it could be defended under the peace, order and good government provisions of the British North America Act and perhaps under other provisions as well. A decision was made to draft it in this form on the best advice the government could receive. Commons Debates, October 22, 1975, p. 8443. I finally wish to quote a statement made by the Minister of Finance, who had introduced the Anti-Inflation Bill, when he appeared before the Standing Committee on Finance, Trade and Economic Affairs. He was asked about the constitutional foundation of the Bill. Here is his reply: ... All depends on the phrase of Section 91 you have just read quoting "peace, order and good government". The opinion of the government on constitutionality is based on some cases that were pleaded before the judicial committee of the privy council in 1946, for instance the Canada Temperance Federation case, and, since then before the Supreme Court, Thamieson and St. Paul (presumably Johannesson v. Rural Municipality of West St. Paul) and Munro and the National Capital Commission. Accordingly, when you have a scheme which goes beyond reasons that are strictly local, provincial or private, when you have a national scheme like this one, there can be a federal jurisdiction under which to legislate on those matters. It is within this frame of analysis that we assume the federal government has the necessary jurisdiction for this bill. (Minutes of Proceedings and Evidence of the Standing Committee on Finance and Economic Affairs, Issue No. 62, October 30, 1975, p. 46.) Reliance upon those statements is not essential to my conclusions. However, they reinforce my opinion that the Anti-Inflation Act was enacted in this form because it was believed, erroneously, that Parliament had the ordinary power to enact it under the national concern or national dimension doctrine, that is, a basis which coincides identically with the first submission made to us by Counsel for Canada. Parliament did not purport to enact it under the extraordinary power which it possesses in time of national crisis. The Anti-Inflation Act is in my opinion ultra vires of Parliament in so far at least as it applies to the provincial private sector; but severability having not been pleaded by Counsel for Canada, I would declare the Act ultra vires of Parliament in whole.

R. v. Crown Zellerbach Canada Ltd., 1988

[1988] 1 S.C.R. 401 Supreme Court of Canada Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.

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ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA The judgment of Dickson C.J. and McIntyre, Wilson and Le Dain JJ. was delivered by 1 LE DAIN J.:-- The question raised by this appeal is whether federal legislative jurisdiction to regulate the dumping of substances at sea, as a measure for the prevention of marine pollution, extends to the regulation of dumping in provincial marine waters. In issue is the validity of s. 4(1) of the Ocean Dumping Control Act, S.C. 1974-75-76, c. 55, which prohibits the dumping of any substance at sea except in accordance with the terms and conditions of a permit, the sea being defined for the purposes of the Act as including the internal waters of Canada other than fresh waters. 2 The appeal is by leave of this Court from the judgment on January 26, 1984 of the British Columbia Court of Appeal (1984), 51 B.C.L.R. 32, 7 D.L.R. (4th) 449, [1984] 2 W.W.R. 714, 11 C.C.C. (3d) 113, 13 C.E.L.R. 29, dismissing an appeal by way of stated case from the judgment on May 26, 1982 of Schmidt Prov. Ct. J. (1982), 11 C.E.L.R. 151, who dismissed charges against the respondent of unlawfully dumping in the waters of Johnstone Strait near Beaver Cove in the province of British Columbia on the ground that s. 4(1) of the Ocean Dumping Control Act is ultra vires the Parliament of Canada. I 3 The general purpose of the Ocean Dumping Control Act is to regulate the dumping of substances at sea in order to prevent various kinds of harm to the marine environment. The Act would appear to have been enacted in fulfilment of Canada's obligations under the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, which was signed by Canada on December 29, 1972. That is not expressly stated in the Act, but there are several references to the Convention in the Act (see ss. 2(1), 4(2), 5(2), 9(6) and 28(3)), and Schedules I, II and III of the Act, with reference to "Prohibited Substances", "Restricted Substances"' and "Factors To Be Taken Into Account In Granting Permits", appear to be modelled closely on Annexes I, II and III of the Convention. The Schedules of the Act have been amended to incorporate amendments to the Annexes of the Convention (see P.C. 19812509, September 16, 1981, SOR/81-721, September 21, 1981). 4 The concerns of the Act are reflected in the nature of the prohibited and restricted substances in Schedules I and II and in the factors to be taken into account by the Minister of the Environment in granting permits to dump, which are set out in ss. 9 and 10 of the Act and in Schedule III. What these provisions indicate is that the Act is concerned with marine pollution and its effect on marine life, human health and the amenities of the marine environment. There is also reference to the effect of dumping on navigation and shipping and other legitimate uses of the sea. 5 Section 4(1) of the Act, with the contravention of which the respondent was charged, reads as follows: 4.(1) No person shall dump except in accordance with the terms and conditions of a permit.

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6

"Dumping" is defined by s. 2(1) of the Act as follows: 2.(1) In this Act, ... "dumping" means any deliberate disposal from ships, aircraft, platforms or other man-made structures at sea of any substance but does not include (a) any disposal that is incidental to or derived from the normal operations of a ship or an aircraft or of any equipment thereof other than the disposal of substances from a ship or aircraft operated for the purpose of disposing of such substances at sea, and (b) any discharge that is incidental to or derived from the exploration for, exploitation of and associated off-shore processing of sea bed mineral resources;

7

"The sea" is defined, for the purposes of the Act, by s. 2(2) and (3) as follows: 2. ... (2) For the purposes of this Act, "the sea" means

(a) (b) (c) (d) (e) (f) (g)

the territorial sea of Canada; the internal waters of Canada other than inland waters; any fishing zones prescribed pursuant to the Territorial Sea and Fishing Zones Act; the arctic waters within the meaning of the Arctic Waters Pollution Prevention Act; any area of the sea adjacent to the areas referred to in paragraphs (a) to (d) as may be prescribed; any area of the sea, under the jurisdiction of a foreign state, other than internal waters; and any area of the sea, other than the internal waters of a foreign state, not included in the areas of the sea referred to in paragraphs (a) to (f). [....]

11 The respondent was charged, in an information consisting of two counts, with contravening s. 4(1) of the Act, and thereby committing an offence under s. 13(1)(c) as follows: Count 1: On or about the 16th day of August, A.D. 1980, in the waters of Johnstone Strait near Beaver Cove, Province of British Columbia, did unlawfully dump except in accordance with the terms and conditions of a permit in contravention of Section 4 of the Ocean Dumping Control Act, thereby committing an offence under Section 13(1)(c) of the said Act. Count 2: On or about the 17th day of August, A.D. 1980, in the waters of Johnstone Strait near Beaver Cove, Province of British Columbia, did unlawfully dump except in accordance with the

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terms and conditions of a permit in contravention of Section 4 of the Ocean Dumping Control Act, thereby committing an offence under Section 13(1)(c) of the said Act. 12 The admitted facts concerning the location and nature of the dumping with which the respondent was charged are as follows. The respondent carries on logging operations on Vancouver Island in connection with its forest products business in British Columbia and maintains a log dump on a water lot leased from the provincial Crown for the purpose of log booming and storage in Beaver Cove, off Johnstone Strait, on the northeast side of Vancouver Island. The waters of Beaver Cove are inter fauces terrae, or as put in the stated case, "Beaver Cove is of such size that a person standing on the shoreline of either side of Beaver Cove can easily and reasonably discern between shore and shore of Beaver Cove." On August 16 and 17, 1980 the respondent, using an 80-foot crane operating from a moored scow, dredged woodwaste from the ocean floor immediately adjacent to the shoreline at the site of its log dump in Beaver Cove and deposited it in the deeper waters of the cove approximately 60 to 80 feet seaward of where the woodwaste had been dredged. The purpose of the dredging and dumping was to allow a new A-frame structure for log dumping to be floated on a barge to the shoreline for installation there and to give clearance for the dumping of bundled logs from the A-frame structure into the waters of the log dump area. The woodwaste consisted of waterlogged logging debris such as bark, wood and slabs. There is no evidence of any dispersal of the woodwaste or any effect on navigation or marine life. At the relevant time the only permit held by the respondent under the Act was one issued on or about July 28, 1980, effective until July 25, 1981, to dump at a site in Johnstone Strait some 2.2 nautical miles from the place where the woodwaste was dumped. [....] II 16 As the constitutional question indicates, the issue raised by the appeal is the constitutionality of the application of s. 4(1) of the Act to the dumping of waste in waters, other than fresh waters, within a province. The respondent concedes, as it must, that Parliament has jurisdiction to regulate dumping in waters lying outside the territorial limits of any province. It also concedes that Parliament has jurisdiction to regulate the dumping of substances in provincial waters to prevent pollution of those waters that is harmful to fisheries, if the federal legislation meets the test laid down in the Fowler and Northwest Falling cases. It further concedes, in view of the opinion expressed in this Court in Interprovincial Co-operatives Ltd. v. The Queen, [1976] 1 S.C.R. 477, that Parliament has jurisdiction to regulate the dumping in provincial waters of substances that can be shown to cause pollution in extraprovincial waters. What the respondent challenges is federal jurisdiction to control the dumping in provincial waters of substances that are not shown to have a pollutant effect in extra-provincial waters. The respondent contends that on the admitted facts that is precisely the present case. The respondent submits that in so far as s. 4(1) of the Act can only be read as purporting to apply to such dumping it is ultra vires and, alternatively, that it should be read, if possible, so as not to apply to such dumping. In either case the appeal must fail. The Attorney General of British Columbia, who supported 196

the attack on s. 4(1), as applied to the dumping of waste in Beaver Cove, and with whom the Attorney General of Quebec agreed, made a similar submission that s. 4(1) should be read down so as not to apply to dumping in provincial waters. He submitted that the constitutional question should be answered as follows: "Section 4(1) of the Ocean Dumping Control Act is constitutionally inapplicable to marine waters within a province and, therefore, the definition of 'the sea' in s. 2(2) of the Act must be read to exclude from the term 'internal waters of Canada' in paragraph (b) those internal waters which are within a province." 17 In this Court the Attorney General of Canada did not contend that there was a sufficient connection between the Act and navigation to support the validity of s. 4(1) on the basis of federal jurisdiction with respect to navigation and shipping. He did submit, as I understood his argument, that there was a sufficient connection between the Act and the protection of fisheries to meet the test laid down in Fowler and Northwest Falling, but I did not understand him to place very great reliance on this submission. His principal submission in this Court was that the control of dumping in provincial marine waters, for the reasons indicated in the Act, was part of a single matter of national concern or dimension which fell within the federal peace, order and good government power. He characterized this matter as the prevention of ocean or marine pollution. His reliance on the specific heads of federal jurisdiction with respect to navigation and shipping and seacoast and inland fisheries, as well as others of a maritime nature, was rather as indicating, in his submission, the scope that should be assigned to federal jurisdiction under the peace, order and good government power to regulate the dumping of substances for the prevention of marine pollution. The Attorney General of Canada made it plain that he was not relying in this Court on ancillary or necessarily incidental power. His contention was that the control of dumping in provincial marine waters was an integral part of a single matter of national concern. Nor did he rely in this Court on the peace, order and good government power as a basis of federal jurisdiction to enact the Ocean Dumping Control Act in implementation of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter. He referred to the Convention and its Annexes as indicating the mischief to which the Act is directed and as supporting his characterization of the matter in relation to which the Act was enacted. In his factum the Attorney General of Canada also placed some reliance on the federal criminal law power under s. 91(27) of the Constitution Act, 1867, as a constitutional basis for the enactment of s. 4(1) of the Act as a measure for the prevention of injury to public health, but I did not understand him to press this contention in his oral argument. 18 Before considering the relationship of the subject-matter of the Act to the possible bases of federal legislative jurisdiction something more should be said about the characterization of that subject-matter, according to the respective contentions of the parties. As I have indicated, the appellant contends that the Act is directed to the control or regulation of marine pollution, the subject-matter of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter. The respondent, on the other hand, contends that by its terms the Act is directed at dumping which need not necessarily have a pollutant effect. It prohibits the dumping of any substance, 197

including a substance not specified in Schedule I or Schedule II, except in accordance with the terms and conditions of a permit. In my opinion, despite this apparent scope, the Act, viewed as a whole, may be properly characterized as directed to the control or regulation of marine pollution, in so far as that may be relevant to the question of legislative jurisdiction. The chosen, and perhaps only effective, regulatory model makes it necessary, in order to prevent marine pollution, to prohibit the dumping of any substance without a permit. Its purpose is to require a permit so that the regulatory authority may determine before the proposed dumping has occurred whether it may be permitted upon certain terms and conditions, having regard to the factors or concerns specified in ss. 9 and 10 of the Act and Schedule III. The Act is concerned with the dumping of substances which may be shown or presumed to have an adverse effect on the marine environment. The Minister and not the person proposing to do the dumping must be the judge of this, acting in accordance with the criteria or factors indicated in ss. 9 and 10 and Schedule III of the Act. There is no suggestion that the Act purports to authorize the prohibition of dumping without regard to perceived adverse effect or the likelihood of such effect on the marine environment. The nature of the marine environment and its protection from adverse effect from dumping is a complex matter which must be left to expert judgment. [....] 22 I agree with Schmidt Prov. Ct. J. and the British Columbia Court of Appeal that federal legislative jurisdiction with respect to seacoast and inland fisheries is not sufficient by itself to support the constitutional validity of s. 4(1) of the Act because that section, viewed in the context of the Act as a whole, fails to meet the test laid down in Fowler and Northwest Falling. While the effect on fisheries of marine pollution caused by the dumping of waste is clearly one of the concerns of the Act it is not the only effect of such pollution with which the Act is concerned. A basis for federal legislative jurisdiction to control marine pollution generally in provincial waters cannot be found in any of the specified heads of federal jurisdiction in s. 91 of the Constitution Act, 1867, whether taken individually or collectively. IV 23 It is necessary then to consider the national dimensions or national concern doctrine (as it is now generally referred to) of the federal peace, order and good government power as a possible basis for the constitutional validity of s. 4(1) of the Act, as applied to the control of dumping in provincial marine waters. [....] 33 From this survey of the opinion expressed in this Court concerning the national concern doctrine of the federal peace, order and good government power I draw the following conclusions as to what now appears to be firmly established:

1.

The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable 198

2.

3.

4.

by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature; The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern; For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution; In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern it is relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter.

34 This last factor, generally referred to as the "provincial inability" test and noted with apparent approval in this Court in Labatt, Schneider and Wetmore, was suggested, as Professor Hogg acknowledges, by Professor Gibson in his article, "Measuring 'National Dimensions'" (1976), 7 Man. L.J. 15, as the most satisfactory rationale of the cases in which the national concern doctrine of the peace, order and good government power has been applied as a basis of federal jurisdiction. As expounded by Professor Gibson, the test would appear to involve a limited or qualified application of federal jurisdiction. As put by Professor Gibson at pp. 34-35, "By this approach, a national dimension would exist whenever a significant aspect of a problem is beyond provincial reach because it falls within the jurisdiction of another province or of the federal Parliament. It is important to emphasize however that the entire problem would not fall within federal competence in such circumstances. Only that aspect of the problem that is beyond provincial control would do so. Since the "P.O. & G.G." clause bestows only residual powers, the existence of a national dimension justifies no more federal legislation than is necessary to fill the gap in provincial powers. For example, federal jurisdiction to legislate for pollution of interprovincial waterways or to control "pollution price-wars" would (in the absence of other independent sources of federal competence) extend only to measures to reduce the risk that citizens of one province would be harmed by the non-co-operation of another province or provinces." To similar effect, he said in his conclusion at p. 36: "Having regard to the residual nature of the power, it is the writer's thesis that 'national dimensions' are possessed by only those aspects of legislative problems which are beyond the ability of the provincial legislatures to deal because they involve either federal competence or that of another province. Where it would be possible to deal fully with the problem by co-operative action of two or more legislatures, the "national dimension" concerns only the risk of non-co-operation, and justifies only federal legislation addressed to that risk." This would appear to contemplate a concurrent or overlapping federal jurisdiction which, I must observe, is in conflict with what was emphasized by Beetz J. in the Anti-Inflation Act reference -- that where a matter falls within the national concern doctrine of the peace, order and good government power, as distinct

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from the emergency doctrine, Parliament has an exclusive jurisdiction of a plenary nature to legislate in relation to that matter, including its intra-provincial aspects. 35 As expressed by Professor Hogg in the first and second editions of his Constitutional Law of Canada, the "provincial inability" test would appear to be adopted simply as a reason for finding that a particular matter is one of national concern falling within the peace, order and good government power: that provincial failure to deal effectively with the intra-provincial aspects of the matter could have an adverse effect on extra-provincial interests. In this sense, the "provincial inability" test is one of the indicia for determining whether a matter has that character of singleness or indivisibility required to bring it within the national concern doctrine. It is because of the interrelatedness of the intra-provincial and extra-provincial aspects of the matter that it requires a single or uniform legislative treatment. The "provincial inability" test must not, however, go so far as to provide a rationale for the general notion, hitherto rejected in the cases, that there must be a plenary jurisdiction in one order of government or the other to deal with any legislative problem. In the context of the national concern doctrine of the peace, order and good government power, its utility lies, in my opinion, in assisting in the determination whether a matter has the requisite singleness or indivisibility from a functional as well as a conceptual point of view. [....] V 37 Marine pollution, because of its predominantly extra-provincial as well as international character and implications, is clearly a matter of concern to Canada as a whole. The question is whether the control of pollution by the dumping of substances in marine waters, including provincial marine waters, is a single, indivisible matter, distinct from the control of pollution by the dumping of substances in other provincial waters. The Ocean Dumping Control Act reflects a distinction between the pollution of salt water and the pollution of fresh water. The question, as I conceive it, is whether that distinction is sufficient to make the control of marine pollution by the dumping of substances a single, indivisible matter falling within the national concern doctrine of the peace, order and good government power. 38 Marine pollution by the dumping of substances is clearly treated by the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter as a distinct and separate form of water pollution having its own characteristics and scientific considerations. This impression is reinforced by the United Nations Report of the Joint Group of Experts on the Scientific Aspects of Marine Pollution, Reports and Studies No. 15, The Review of the Health of the Oceans (UNESCO 1982) (hereinafter referred to as the "U.N. Report"), which forms part of the materials placed before the Court in the argument. It is to be noted, however, that, unlike the Ocean Dumping Control Act, the Convention does not require regulation of pollution by the dumping of waste in the internal marine waters of a state. Article III, para. 3, of the Convention defines the "sea" as "all marine waters other

200

than the internal waters of the States." The internal marine waters of a state are those which lie landward of the baseline of the territorial sea, which is determined in accordance with the rules laid down in the United Nations Convention on the Law of the Sea (1982). The limitation of the undertaking in the Convention, presumably for reasons of state policy, to the control of dumping in the territorial sea and the open sea cannot, in my opinion, obscure the obviously close relationship, which is emphasized in the U.N. Report, between pollution in coastal waters, including the internal marine waters of a state, and pollution in the territorial sea. Moreover, there is much force, in my opinion, in the appellant's contention that the difficulty of ascertaining by visual observation the boundary between the territorial sea and the internal marine waters of a state creates an unacceptable degree of uncertainty for the application of regulatory and penal provisions. This, and not simply the possibility or likelihood of the movement of pollutants across that line, is what constitutes the essential indivisibility of the matter of marine pollution by the dumping of substances. 39 There remains the question whether the pollution of marine waters by the dumping of substances is sufficiently distinguishable from the pollution of fresh waters by such dumping to meet the requirement of singleness or indivisibility. In many cases the pollution of fresh waters will have a pollutant effect in the marine waters into which they flow, and this is noted by the U.N. Report, but that report, as I have suggested, emphasizes that marine pollution, because of the differences in the composition and action of marine waters and fresh waters, has its own characteristics and scientific considerations that distinguish it from fresh water pollution. Moreover, the distinction between salt water and fresh water as limiting the application of the Ocean Dumping Control Act meets the consideration emphasized by a majority of this Court in the Anti-Inflation Act reference -- that in order for a matter to qualify as one of national concern falling within the federal peace, order and good government power it must have ascertainable and reasonable limits, in so far as its impact on provincial jurisdiction is concerned. 40 For these reasons I am of the opinion that s. 4(1) of the Ocean Dumping Control Act is constitutionally valid as enacted in relation to a matter falling within the national concern doctrine of the peace, order and good government power of the Parliament of Canada, and, in particular, that it is constitutional in its application to the dumping of waste in the waters of Beaver Cove. I would accordingly allow the appeal, set aside the judgments of the Court of Appeal and Schmidt Prov. Ct. J. and refer the matter back to the Provincial Court judge. [....]

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3.3 ­ Criminal Law: Shield and Sword

Reference re Validity of Section 5(a) of the Dairy Industry Act, 1949

[1949] S.C.R. 1, [1949] 1 D.L.R. 433 [....] Under a unitary legislature, all prohibitions may be viewed indifferently as of criminal law; but as the cases cited demonstrate, such a classification is inappropriate to the distribution of legislative power in Canada. Is the prohibition then enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law but they do not appear to be the object of parliamentary action here. [....]

RJR-MacDonald Inc. v. Canada (Attorney General), 1995

[1995] 3 S.C.R. 199 Supreme Court of Canada Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC [...] The reasons of La Forest, L'Heureux-Dubé and Gonthier JJ. were delivered by 2 LA FOREST J. (dissenting):-- The issues in these appeals are whether the Tobacco Products Control Act, S.C. 1988, c. 20 (the "Act"), falls within the legislative competence of the Parliament of Canada under s. 91 of the Constitution Act, 1867, either as criminal law or under the peace, order and good government clause, and if so whether it constitutes an infringement of freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms which is not justified under s. 1 of the Charter. In broad terms, the Act prohibits, subject to specified exceptions, all advertising and promotion of tobacco products, and prohibits the sale of a tobacco product unless the package containing it sets

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forth prescribed health warnings and a list of the toxic constituents of the product and of the smoke produced from its combustion. 3 These proceedings began with two separate motions for declaratory judgments before the Quebec Superior Court. The appellant RJR - MacDonald Inc. ("RJR") seeks a declaration that the Act is wholly ultra vires the Parliament of Canada and invalid as an unjustified infringement of freedom of expression guaranteed by s. 2(b) of the Charter. The appellant Imperial Tobacco Ltd. ("Imperial") seeks the same order, but only in respect of ss. 4, 5, 6 and 8 of the Act. The two motions were heard together before Chabot J. of the Quebec Superior Court who rejected the Attorney General of Canada's contention that the Act was valid either as criminal law or under the peace, order and good government clause, and declared the whole of the Act ultra vires the Parliament of Canada. He further held the Act was of no force or effect as an unjustified infringement of s. 2(b) of the Charter. The Quebec Court of Appeal reversed this judgment. While upholding the judge's conclusion regarding the criminal law power, it unanimously held that the Act was intra vires Parliament as falling within the peace, order and good government clause and, by majority, that the infringement of s. 2(b) of the Charter was justified by s. 1 of that instrument. The minority judge would have held ss. 4, 5, 6 and 8 invalid under s. 2(b) of the Charter. 4 The appellants sought and were granted leave to appeal to this Court.

The Legislative Scheme 5 The Act, the long title of which is An Act to prohibit the advertising and promotion and respecting the labelling and monitoring of tobacco products, received Royal Assent on June 28, 1988 and came into force on January 1, 1989. The purpose of the Act is set out in s. 3, which reads: 3. The purpose of this Act is to provide a legislative response to a national public health problem of substantial and pressing concern and, in particular, (a) to protect the health of Canadians in the light of conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases; to protect young persons and others, to the extent that is reasonable in a free and democratic society, from inducements to use tobacco products and consequent dependence on them; and to enhance public awareness of the hazards of tobacco use by ensuring the effective communication of pertinent information to consumers of tobacco products.

(b)

(c)

Section 3 thus states that Parliament's purpose in enacting the legislation is to address the "national public health problem of substantial and pressing concern" arising from the use of tobacco, by protecting young persons and others from inducements to use tobacco products, and by enhancing 203

public awareness concerning the hazards of tobacco use. However, it is of significance to these appeals that, with the exception of a prohibition on the distribution of free samples of tobacco products under s. 7, the Act does not purport to proscribe the sale, distribution or use of tobacco products. Rather, as its long title indicates, the Act seeks to attain its purpose through the institution of a prohibition on the advertising and promotion of tobacco products offered for sale in Canada and through the institution of a requirement that manufacturers of tobacco products display health warnings on tobacco product packages. 6 In furtherance of the purpose set out in s. 3, Parliament has created a legislative scheme that targets three distinct categories of commercial activity: advertising, promotion and labelling. Sections 4 and 5 of the Act, which fall under the title "ADVERTISING", deal with the advertisement and display of tobacco products. Section 4 prohibits the advertisement, by publication, broadcast or otherwise, of tobacco products offered for sale in Canada. An exception to this prohibition is created by s. 4(3) and (4), which stipulate that the prohibition does not extend to foreign advertising in foreign publications imported into Canada or foreign broadcasts retransmitted in Canada, as long as those advertisements are not intended primarily for the purpose of promoting the sale of a tobacco product in Canada. Section 5 is directed to the retail display of tobacco products in retail establishments and vending machines. Section 5(1) stipulates that a retailer may expose tobacco products for sale and may post signs that indicate, other than by their brand names or trade marks, the tobacco products offered for sale on the premises. Section 5(2) permits the operation of tobacco vending machines, and the identification of products and prices on the exterior of the machines. 7 Sections 6 to 8 of the Act fall under the title "PROMOTION", and deal with various direct and indirect promotional activities involving tobacco products. Section 6(1) stipulates that the full name of a tobacco manufacturer may be used in a representation to the public that promotes a cultural or sporting event, but prohibits the use of brand names in such representations unless the use of a brand name is required by a contract made before January 25, 1988. Section 6(2) stipulates that, where a contract requiring the use of a brand name was in place before January 25, 1988, the value of contributions under that contract are frozen at 1987 levels. Section 7 prohibits the free distribution of tobacco products in any form. Section 8 prohibits the use of a tobacco trade mark on any article other than a tobacco product, and also prohibits the use and distribution of tobacco trade marks in advertising for products other than tobacco products; however, a special exemption from the s. 8 prohibition is created under s. 8(3) for the "Dunhill" trade mark. 8 Section 9 falls under the title "LABELLING", and prohibits tobacco manufacturers from selling their products unless they display on the package containing the product unattributed messages describing the health effects of the product as well as a list of the product's toxic constituents and the quantities of those constituents present in it. Section 17(f) authorizes the Governor in Council to adopt regulations prescribing the content, position, configuration, size and prominence of the health

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messages. Under the Tobacco Products Control Regulations, amendment, SOR/93-389, s. 11 (July 21, 1993), every tobacco package must display one of the following messages: 11. (1) . . . (a) (i) (ii) (iii) (iv) (v) (vi) (vii) ... "Cigarettes are addictive" . . . "Tobacco smoke can harm your children" . . . "Cigarettes cause fatal lung disease" . . . "Cigarettes cause cancer" . . . "Cigarettes cause strokes and heart disease" . . . "Smoking during pregnancy can harm your baby" . . . "Smoking can kill you" . . .

(viii) "Tobacco smoke causes fatal lung disease in non-smokers" . . . Section 17(g) also authorizes the Governor in Council to require leaflets providing health information to be placed inside packages of a tobacco product and to prescribe their content, form and manner of placement in those packages. Under s. 9(2), tobacco manufacturers are prohibited from displaying on their packages any writing other than the name, brand name, trade mark, and other information required by legislation. 9 One further provision of the Act is of relevance to these appeals. Section 17(a) gives the Governor in Council power to make regulations exempting a tobacco product from the application of ss. 4 and 7 where, in the opinion of the Governor in Council, that product is likely to be used as a substitute for other tobacco products and poses less risk to the health of users than those other products. 10 The enforcement provisions of the Act are found in ss. 11 to 16. These provisions confer upon the Minister the power to designate a "tobacco product inspector" with powers of inspection, search and seizure, analysis, detention of things seized, and forfeiture. The "offences and punishments" for contravention of the Act are set out in ss. 18 and 19. Section 18 stipulates that every person who contravenes ss. 4, 6(2), 7, 8, 9 or 10 is guilty of an offence punishable on summary conviction or an indictable offence. The penalties range in seriousness from a fine not exceeding two thousand dollars or six months' imprisonment, or both, for a first offence on summary conviction, to a fine not exceeding three hundred thousand dollars or two years' imprisonment, or both, for a second or subsequent offence pursued by way of indictment. [....] 205

Issues Before This Court 27 The argument before this Court was conducted on the basis of two constitutional questions, stated by Chief Justice Lamer on November 4, 1993: 1. Is the Tobacco Products Control Act, S.C. 1988, c. 20, wholly or in part within the legislative competence of the Parliament of Canada as being a law enacted for the peace, order and good government of Canada pursuant to s. 91 of the Constitution Act, 1867; as being enacted pursuant to the criminal law power in s. 91(27) thereof; or otherwise? Is the Tobacco Products Control Act wholly or in part inconsistent with the right of freedom of expression as set out in s. 2(b) of the Canadian Charter of Rights and Freedoms and, if so, does it constitute a reasonable limit on that right as can be demonstrably justified pursuant to s. 1 thereof?

2.

Analysis 1. Jurisdiction under the Constitution Act, 1867 The Criminal Law Power 28 The first question arising on these appeals is whether the Act constitutes a valid exercise of the federal criminal law power and is therefore intra vires the federal Parliament. Section 91(27) of the Constitution Act, 1867 confers on the federal Parliament the exclusive power to legislate in relation to the criminal law. The criminal law power is plenary in nature and this Court has always defined its scope broadly. As Estey J. observed in Scowby v. Glendinning, [1986] 2 S.C.R. 226, at p. 238, "[t]he terms of s. 91(27) of the Constitution must be read as assigning to Parliament exclusive jurisdiction over criminal law in the widest sense of the term"; see also Attorney-General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524 (P.C.), at pp. 528-29. In developing a definition of the criminal law, this Court has been careful not to freeze the definition in time or confine it to a fixed domain of activity; see Goodyear Tire and Rubber Co. v. The Queen, [1956] S.C.R. 303, at p. 311 (per Rand J.); R. v. Zelensky, [1978] 2 S.C.R. 940, at pp. 950-51 (per Laskin C.J.). In Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310 (PATA), at p. 324, the Privy Council defined the federal criminal law power in the widest possible terms to include any prohibited act with penal consequences. Subsequent to that decision, this Court recognized that the Privy Council's definition was too broad in that it would allow Parliament to invade areas of provincial legislative competence colourably simply by legislating in the proper form; see Scowby, supra, at p. 237. So, as Estey J. put it in Scowby, at p. 237, "it was accepted that some legitimate public purpose must underlie the prohibition". This necessary adjustment was introduced in Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1 (the Margarine Reference). Rand J. drew attention, at pp. 49-50, to the need to identify the evil or injurious effect at which a penal prohibition was directed. He stated:

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A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened. ... Is the prohibition . . . enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law . . . . [Emphasis added.] See also R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 489. 29 Taking into account the broad definition of the criminal law developed by this Court, I am satisfied that the Act is, in pith and substance, criminal law. A law's pith and substance, or "matter", is best described as its dominant purpose or true character; see Morgentaler, supra, at pp. 481-82. From a plain reading of the Act, it seems clear that Parliament's purpose in enacting this legislation was to prohibit three categories of acts: advertisement of tobacco products (ss. 4 and 5), promotion of tobacco products (ss. 6 to 8) and sale of tobacco products without printed health warnings (s. 9). These prohibitions are accompanied by penal sanctions under s. 18 of the Act, which, as Lord Atkin noted in PATA, supra, at p. 324, creates at least a prima facie indication that the Act is criminal law. However, the crucial further question is whether the Act also has an underlying criminal public purpose in the sense described by Rand J. in the Margarine Reference, supra. The question, as Rand J. framed it, is whether the prohibition with penal consequences is directed at an "evil" or injurious effect upon the public. 30 In these cases, the evil targeted by Parliament is the detrimental health effects caused by tobacco consumption. This is apparent from s. 3, the Act's "purpose" clause, which bears repeating here: 3. The purpose of this Act is to provide a legislative response to a national public health problem of substantial and pressing concern and, in particular, (a) to protect the health of Canadians in the light of conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases; to protect young persons and others, to the extent that is reasonable in a free and democratic society, from inducements to use tobacco products and consequent dependence on them; and to enhance public awareness of the hazards of tobacco use by ensuring the effective communication of pertinent information to consumers of tobacco products. 207

(b)

(c)

Quite clearly, the common thread running throughout the three enumerated purposes in paras. 3(a) to (c) is a concern for public health and, more specifically, a concern with protecting Canadians from the hazards of tobacco consumption. This is a valid concern. A copious body of evidence was introduced at trial demonstrating convincingly, and this was not disputed by the appellants, that tobacco consumption is widespread in Canadian society and that it poses serious risks to the health of a great number of Canadians. I note in passing the well-established principle that a court is entitled, in a pith and substance analysis, to refer to extrinsic materials, such as related legislation, Parliamentary debates and evidence of the "mischief" at which the legislation is directed; see Morgentaler, supra, at pp. 483-84; Reference Re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 437; Re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, at pp. 317-19. An appropriate starting point in an examination of these extrinsic materials is the speech given by Jake Epp, the Minister of National Health and Welfare, on November 23, 1987 before second reading of Bill C-51, which was later given Royal Assent to the Act. He stated (House of Commons Debates, vol. IX, at p. 11042): The federal Government has taken an active role in addressing the issue of cigarette smoking. It is important for people to understand why smoking, which was thought of as merely a personal habit, has become a legitimate public concern. There is overwhelming evidence that tobacco smoke is the largest preventable cause of illness, disability and premature death in Canada. Moreover, it has also become evident that Canadians who are consistently exposed to smoke in the environment may suffer from adverse health effects. Not surprisingly, the public is increasingly asking for an environment that protects non-smokers from tobacco smoke. As Minister of National Health and Welfare, my primary concern is the health of Canadians. Therefore, I must do all that I can to protect their health by discouraging the advertising and promotion of tobacco, and by increasing public health knowledge of the health hazards of smoking. This is not a moral crusade. It is not a case of some overzealous individuals attempting to force their life-style on others. It is responsible government action in reaction to overwhelming evidence that tobacco, despite its widespread use by a third of the adult population, is actually responsible for 100 deaths a day in Canada. 31 Apart from shedding light upon the government's intent in introducing this legislation, this speech also gives some indication of the nature and scope of the societal problem posed by tobacco consumption. Statistics show that approximately 6.7 million Canadians, or 28 percent of Canadians over the age of 15, consume tobacco products; see expert report prepared for Health and Welfare Canada by Dr. Roberta G. Ferrence, Trends in Tobacco Consumption in Canada, 1900-1987 (1989). The harm tobacco consumption causes each year to individual Canadians, and to the community as a whole, is tragic. Indeed, it has been estimated that smoking causes the premature death of over 30,000 Canadians annually; see Neil E. Collinshaw, Walter Tostowaryk, Donald T. Wigle, "Mortality 208

Attributable to Tobacco Use in Canada" (1988), 79 Can. J. Pub. Health 166; expert report prepared for Health and Welfare Canada by Dr. Donald T. Wigle, Illness and Death in Canada by Smoking: An Epidemiological Perspective (1989). Overwhelming evidence was introduced at trial that tobacco use is a principal cause of deadly cancers, heart disease and lung disease. In our day and age this conclusion has become almost a truism. Nonetheless, it is instructive to review a small sampling of some of the vast body of medical evidence adduced at trial attesting to the devastating health consequences that arise from tobacco consumption. The expert report of Dr. Anthony B. Miller, for example, contains the following statement, at p. 24 ("Tobacco Use and Cancer" (1989)): The scientific evidence summarised in this statement shows that tobacco smoking causes lung, oral, larynx, esophagus, bladder, kidney and pancreas cancer, while oral use of tobacco causes oral cancer. Tobacco use causes 29% of the deaths that occur in Canada from cancer each year, i.e. an estimated excess of 15,300 deaths in 1989. Evidence is accumulating that passive smoking (exposure to environmental tobacco smoke) increases the risk of lung cancer in non-smokers. Similarly, in the report of Dr. Donald T. Wigle, supra, one finds the following conclusion: Tobacco smoke contains over 4,000 known chemicals many of which are toxic. Over 50 chemicals present in tobacco smoke and tobacco smoke per se, are known to cause cancer in animals, humans or both. ... Smoking causes about 30% of all cancer deaths, 30% of all coronary heart disease deaths and about 85% of all chronic bronchitis/emphysema deaths in Canada and United States. In addition, smoking is a major cause of deaths due to aortic aneurysms, peripheral artery disease and fires. There is growing evidence that smoking is also an important cause of deaths due to stroke. In terms of the scientific evidence available, the causal role of smoking in the major diseases described above is firmly established beyond all reasonable doubt. This conclusion is accepted by all leading health professional organizations and by many governments and international agencies including: --Canadian Medical Association --Canadian Public Health Association --Health and Welfare Canada --Canadian Cancer Society --Canadian Lung Association --Canadian Heart Foundation 209

--Canadian Council on Smoking and Health -- U.S. Surgeon General/U.S. Department of Health and Human Services --World Health Organization --International Agency for Research on Cancer. 32 It appears, then, that the detrimental health effects of tobacco consumption are both dramatic and substantial. Put bluntly, tobacco kills. Given this fact, can Parliament validly employ the criminal law to prohibit tobacco manufacturers from inducing Canadians to consume these products, and to increase public awareness concerning the hazards of their use? In my view, there is no question that it can. "Health", of course, is not an enumerated head under the Constitution Act, 1867. As Estey J. observed in Schneider v. The Queen, [1982] 2 S.C.R. 112, at p. 142: . . . "health" is not a matter which is subject to specific constitutional assignment but instead is an amorphous topic which can be addressed by valid federal or provincial legislation, depending in the circumstances of each case on the nature or scope of the health problem in question. Given the "amorphous" nature of health as a constitutional matter, and the resulting fact that Parliament and the provincial legislatures may both validly legislate in this area, it is important to emphasize once again the plenary nature of the criminal law power. In the Margarine Reference, supra, at pp. 49-50, Rand J. made it clear that the protection of "health" is one of the "ordinary ends" served by the criminal law, and that the criminal law power may validly be used to safeguard the public from any "injurious or undesirable effect". The scope of the federal power to create criminal legislation with respect to health matters is broad, and is circumscribed only by the requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at a legitimate public health evil. If a given piece of federal legislation contains these features, and if that legislation is not otherwise a "colourable" intrusion upon provincial jurisdiction, then it is valid as criminal law; see Scowby, supra, at pp. 237-38. 33 As I have indicated, it is clear that this legislation is directed at a public health evil and that it contains prohibitions accompanied by penal sanctions. Is it colourable? In my view, it is not. Indeed, it is difficult to conceive what Parliament's purpose could have been in enacting this legislation apart from the reduction of tobacco consumption and the protection of public health. If Parliament's underlying purpose or intent had been to encroach specifically upon the provincial power to regulate advertising, it would surely have enacted legislation applying to advertising in more than one industry. Similarly, if Parliament's intent had been to regulate the tobacco industry as an industry, and not merely to combat the ancillary health effects resulting from tobacco consumption, then it would surely have enacted provisions that relate to such matters as product quality, pricing and labour relations. In this respect, the present cases must be distinguished from cases such as Morgentaler, supra, where there was evidence that Nova Scotia's major purpose in enacting the Medical Services Act, R.S.N.S. 210

1989, c. 281, which purported to be for the control of private health care facilities, was in fact the elimination of free-standing abortion clinics, or Switzman v. Elbling, [1957] S.C.R. 285, where it was clear that Quebec's intention in enacting the Act Respecting Communistic Propaganda, R.S.Q. 1941, c. 52, was not to control the use of property but to suppress freedom of speech, a federal matter. In both these cases, it was clear that the provincial legislature was attempting to intrude indirectly upon federal powers when it could not do so directly; see also Re Upper Churchill Water Rights Reversion Act, supra. By contrast, there is no evidence in the present cases that Parliament had an ulterior motive in enacting this legislation, or that it was attempting to intrude unjustifiably upon provincial powers under ss. 92(13) and (16). They thus differ from the Margarine Reference, supra, where the prohibition was not really directed at curtailing a public evil, but was in reality, in pith and substance, aimed at regulating the dairy industry. 34 Why, then, has Parliament chosen to prohibit tobacco advertising, and not tobacco consumption itself? In my view, there is a compelling explanation for this choice. It is not that Parliament was attempting to intrude colourably upon provincial jurisdiction but that a prohibition upon the sale or consumption of tobacco is not a practical policy option at this time. It must be kept in mind that the very nature of tobacco consumption makes government action problematic. Many scientists agree that the nicotine found in tobacco is a powerfully addictive drug. For example, the United States Surgeon General has concluded that "[c]igarettes and other forms of tobacco are addicting" and that "the processes that determine tobacco addiction are similar to those that determine addiction to other drugs, including illegal drugs"; see The Health Consequences of Smoking -- Nicotine Addiction -- A report of the Surgeon General (1988). Given the addictive nature of tobacco products, and the fact that over one-third of Canadians smoke, it is clear that a legislative prohibition on the sale and use of tobacco products would be highly impractical. Indeed a prohibition on the manufacture and sale of tobacco products would likely lead many smokers to resort to alternative, and illegal, sources of supply. As legislators in this country discovered earlier in the century, the prohibition of a social drug such as tobacco or alcohol leads almost inevitably to an increase in smuggling and crime. 35 However, the mere fact that it is not practical or realistic to implement a prohibition on the use or manufacture of tobacco products does not mean that Parliament cannot, or should not, resort to other intermediate policy options. As Sheila Copps, then an opposition MP, commented during the debate concerning Bill C-51, House of Commons Debates, supra, at p. 11047: We realize that tobacco has been a part of our culture for many hundreds of years. We realize that the negative health effects of tobacco have become evident only in the last number of years. Yet frankly, from a strict political point of view, I do not think any political party would want to go into the next election trumpeting itself as the party which will introduce prohibition on tobacco. That is a fact. If we are stopping short of actually banning the sale of this hazardous product, what steps are we prepared to take to cut down on its use over the next number of years? Certainly, a ban on 211

tobacco advertising is one strategy which is supportable in the move to cut down on the consumption of tobacco. Jake Epp, the Minister of National Health and Welfare, made a similar observation during the debate, at p. 11045: Prohibiting the sale of a social drug like tobacco is not feasible, but prohibiting the advertising and promotion of this toxic substance is both feasible and desirable. . . . The advertising ban is but only a part, although a key part, of a long term comprehensive health oriented policy on tobacco and smoking. The long term objective is to bring about a significant decline in smoking and tobacco consumption. An essential tool for meeting this objective is the national program to reduce tobacco use, a joint effort of provincial, territorial, and the federal Governments plus major health organizations. In the short term, the Government's objectives are to strengthen the existing trend against the social acceptability of smoking and to enhance the credibility of the health message. 36 It is apparent from these comments that the social problems created by tobacco consumption are complex and that innovative legislative solutions are required to address them effectively. Faced with the insurmountable difficulties a complete prohibition upon tobacco consumption would create, the federal Parliament has undertaken the task of devising such solutions. Indeed, the Act forms only one part of a comprehensive and multi-faceted federal and provincial program to control and reduce the consumption of tobacco. This program has been in development for over 25 years. As early as 1969, the Standing Committee on Health, Welfare and Social Affairs produced a report entitled Report of the Standing Committee on Health, Welfare and Social Affairs on Tobacco and Cigarette Smoking (1969). In that report, the Committee advocated the progressive elimination of tobacco consumption through the introduction of intermediate measures. The Committee stated, at p. 30: While it is clear that cigarette sales cannot be banned at this time, it is equally clear that the production, distribution and sale of cigarettes should no longer be considered in the same light as the production, distribution and sale of other products. It seems reasonable to introduce whatever steps are feasible to progressively eliminate the promotion of cigarette sales and preparations should be made to assist growers and others affected by reductions in cigarette sales. It is also desirable to increase educational efforts to discourage cigarette smoking and to expand activities to make cigarette smoking less hazardous for those who continue to smoke. In this regard, the Committee recommended, at p. 32, that "cigarette advertising and all other promotion of cigarette sales be progressively eliminated" and suggested, at pp. 52-53, a complete elimination of all cigarette promotional activities within four years from enactment of any legislation. Since 1969, the Department of National Health and Welfare has introduced a variety of educational programmes and has supported research and health promotion organizations in the battle against

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tobacco consumption. In 1983, for example, Health and Welfare Canada published Canadian Initiatives in Smoking and Health in which it stated, at pp. 79 and 81: A major initiative toward concerted action with the ten provinces and the two territories began in 1980, when smoking and health was identified as a high priority area for joint action. In November 1980, a federal-provincial working group was established. When this task force reported back a year later, both federal and provincial governments were involved in a variety of smoking prevention, cessation, and research projects. The scale of these activities had grown apace and presented many opportunities for mutual assistance and cooperation. For its part, the federal government was engaged in support, research, and program development and implementation in several critical areas. ... The Health Promotion Directorate, responsible for the overall smoking and health program, was engaged in research and data base development projects; a major national prevention project, "Toward a Generation of Non-Smoking Canadians"; a cessation project with community pharmacists; and a mass media, community-linked cessation campaign, "Time to Quit", aimed at the general public. 37 In 1985, "federal, provincial and territorial ministers of health agreed to work jointly with nongovernmental organizations in the development and implementation of a National Program to Reduce Tobacco Use" ("Break free -- For a new generation of non-smokers"); see Health and Welfare Canada, National Program to Reduce Tobacco Use: Orientation Manuals & Historical Perspective (1987). In June 1987, Health and Welfare Canada released a "Directional paper of the national program to reduce tobacco use in Canada", where, at p. 4, seven "strategic directions" were recommended to "achieve a non-smoking program that will assist in producing a generation of non-smokers by the year 2000": 1. 2. 3. 4. 5. 6. 7. Legislation Access to Information Availability of Services/Programs Message Promotion Support for Citizen Action Intersectoral Policy Coordination Research/Knowledge Development

213

Among the legislative measures recommended in that Paper were the identification of tobacco products as hazardous products and the "prohibition of direct or indirect advertising, promotion and sponsorship of tobacco products or requirement of large health warnings to make promotion less attractive" (p. 20). In 1988, the legislative committee responsible for studying Bill C-51, which was subsequently adopted by Parliament as the Act, held hearings and heard from 104 organizations representing a variety of interests, including medicine, transport, advertising, smokers' rights, nonsmokers' rights, and tobacco production. 38 Subsequent to the passage of the Act, Parliament has also introduced an array of legislative measures as part of its larger initiative to curb tobacco consumption. These include a law prohibiting the sale of tobacco to minors (Tobacco Sales to Young Persons Act, S.C. 1993, c. 5.), a law eliminating smoking in federal government work environments (Non-smokers' Health Act, S.C. 1988, c. 21), and the prohibition of the sale of cigarettes in the small package formats often purchased by children (socalled "kiddie packs" of less than 20 cigarettes); see An Act to amend the Excise Act, the Customs Act and the Tobacco Sales to Young Persons Act, S.C. 1994, c. 37. Parliament has also sought to reduce smoking through major tax increases in 1985, 1989 and 1991, although taxes were partially rolled back in 1994 due to a large contraband problem. Also relevant is that nine provinces have introduced legislation respecting the sale of tobacco to young persons and smoking in public places (Tobacco Control Act, 1994, S.O. 1994, c. 10; Tobacco Control Act, S.N. 1993, c. T-4.1; Tobacco Access Act, S.N.S. 1993, c. 14; Tobacco Sales Act, S.N.B. 1993, c. T-6.1; Tobacco Sales to Minors Act, S.P.E.I. 1991, c. 44; The Minors Tobacco Act, R.S.S. 1965, c. 381; An Act to Protect the Health of Non-smokers, S.M. 1990, c. S125; Tobacco Product Act, R.S.B.C. 1979, c. 403, as amended, S.B.C. 1992, c. 81; An Act Respecting the Protection of Non-smokers in Certain Public Places, R.S.Q., c. P-38.01). 39 Quite clearly, then, Parliament has been innovative in seeking to find alternatives to a prohibition on the sale or use of tobacco. In light of the practical difficulties entailed in prohibiting the sale or consumption of tobacco, and the resulting need for innovative legislative solutions, Parliament's decision to criminalize tobacco advertisement and promotion is, in my view, a valid exercise of the criminal law power. This Court has long recognized that Parliament may validly employ the criminal law power to prohibit or control the manufacture, sale and distribution of products that present a danger to public health, and that Parliament may also validly impose labelling and packaging requirements on dangerous products with a view to protecting public health. This was recognized as early as the Margarine Reference, supra. There, it is true, this Court decided that s. 5(a) of the Dairy Industry Act, R.S.C. 1927, c. 45, which prohibited the importation of margarine into Canada, was ultra vires the federal Parliament, but this decision was based on the holding that margarine was not a threat to the health of Canadians and, accordingly, that s. 5(a) was an invalid intrusion upon the provincial power to regulate local trade. However, in so deciding, the Court also made clear that the federal Parliament could validly legislate under the criminal law power with respect to health and product safety. In his concurring reasons, supra, at pp. 82-83, Locke J. stated:

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It cannot, in my opinion, be successfully contended that if the real purpose of the prohibition of the importation, manufacture or sale of these products was the protection of the general health of the public the Dominion might not properly legislate. 40 Later, in R. v. Wetmore, [1983] 2 S.C.R. 284, this Court addressed the question whether ss. 8 and 9 of the Food and Drugs Act, R.S.C. 1970, c. F-27, which prohibited the sale of drugs prepared under unsanitary conditions and false or misleading advertisement of drugs, were a valid exercise of the federal criminal law power. Those provisions read as follows: 8. No person shall sell any drug that (a) was manufactured, prepared, preserved, packed or stored under unsanitary conditions; . . .

9. (1) No person shall label, package, treat, process, sell or advertise any drug in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety. In upholding the constitutionality of these provisions under s. 91(27), Laskin C.J., writing for the majority, stated, at pp. 288-89: An examination of the various provisions of the Food and Drugs Act shows that it goes beyond mere prohibition to bring it solely within s. 91(27) but that it also involves a prescription of standards, including labelling and packaging as well as control of manufacture. The ramifications of the legislation, encompassing food, drugs, cosmetics and devices and the emphasis on marketing standards seem to me to subjoin a trade and commerce aspect beyond mere criminal law alone. There appear to be three categories of provisions in the Food and Drugs Act. Those that are in s. 8 are aimed at protecting the physical health and safety of the public. Those that are in s. 9 are aimed at marketing and those dealing with controlled drugs in Part III of the Act are aimed at protecting the moral health of the public. One may properly characterize the first and third categories as falling under the criminal law power but the second category certainly invites the application of the trade and commerce power. However, it is unnecessary to pursue this issue and it has been well understood over many years that protection of food and other products against adulteration and to enforce standards of purity are properly assigned to the criminal law. [Emphasis added.] It is clear from Laskin C.J.'s analysis that legislation with respect to food and drugs that is aimed at protecting the "physical health and safety of the public" is a valid exercise of the federal criminal law power. This was also the view of the British Columbia Court of Appeal in Standard Sausage Co. v. Lee, [1933] 4 D.L.R. 501, supplemented by addendum at [1934] 1 D.L.R. 706, affirmed in Wetmore, supra, at pp. 292-93, where it upheld the constitutionality under the criminal law power of a prohibition against

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the adulteration of foods under ss. 3, 4 and 23 of the Food and Drugs Act, R.S.C. 1927, c. 76. In reaching this decision, Macdonald J.A. stated, at pp. 506-7: . . . if the Federal Parliament, to protect the public health against actual or threatened danger, places restrictions on, and limits the number of preservatives that may be used, it may do so under s. 91 (27) of the B.N.A. Act. This is not in essence an interference with property and civil rights. That may follow as an incident but the real purpose (not colourable and not merely to aid what in substance is an encroachment) is to prevent actual, or threatened injury or the likelihood of injury of the most serious kind to all inhabitants of the Dominion. ... The primary object of this legislation is the public safety -- protecting it from threatened injury. If that is its main purpose -- and not a mere pretence for the invasion of civil rights -- it is none the less valid. . . . 41 Moreover, in my view, the necessary implication of the reasoning in Wetmore and the Margarine Reference is that the federal criminal law power to legislate with respect to dangerous goods also encompasses the power to legislate with respect to health warnings on dangerous goods. Since health warnings serve to alert Canadians to the potentially harmful consequences of the use of dangerous products, the power to prohibit sales without these warnings is simply a logical extension of the federal power to protect public health by prohibiting the sale of the products themselves. As noted by Lamer C.J. in R. v. Swain, [1991] 1 S.C.R. 933, at p. 999, "it has long been recognized that there also exists a preventative branch of the criminal law power". This is also the implication of this Court's decision in Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914, where Estey J., although finding a detailed regulatory scheme with respect to production and content standards for malt liquor under the Food and Drugs Act, R.S.C. 1970, c. F-27, to be ultra vires Parliament, observed, at pp. 933-34: That there is an area of legitimate regulations in respect of trade practices contrary to the interest of the community such as misleading, false or deceptive advertising and misbranding, is not under debate. 42 In this respect, it is significant that Parliament has already enacted numerous prohibitions against the manufacture, sale, advertisement and use of a great variety of products that Parliament deems, from time to time, to be dangerous or harmful. For example, the Hazardous Products Act, R.S.C., 1985, c. H-3, amended R.S.C., 1985, c. 24 (3rd. Supp.), s. 1, which has been found to be a valid exercise of the criminal law power by the Manitoba Court of Appeal in R. v. Cosman's Furniture (1972) Ltd. (1976), 32 C.C.C. (2d) 345, contains the following provisions: 2. In this Act,

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"advertise", in relation to a prohibited product or restricted product, includes any representation by any means whatever for the purpose of promoting directly or indirectly the sale or other disposition of the product; ... "controlled product" means any product, material or substance specified by the regulations made pursuant to paragraph 15(1)(a) to be included in any of the classes listed in Schedule II; "hazardous product" means any prohibited product, restricted product or controlled product; ... "prohibited product" means any product, material or substance included in Part I of Schedule I; "restricted product" means any product, material or substance included in Part II of Schedule I; ... 4. (1) No person shall advertise, sell or import a prohibited product. (2) No person shall advertise, sell or import a restricted product except as authorized by the regulations made under section 5. 5. The Governor in Council may make regulations (a) authorizing the advertising, sale or importation of any restricted product and prescribing the circumstances and conditions under which and the persons by whom the restricted product may be advertised, sold or imported; ... 15. (1) Subject to section 19, the Governor in Council may make regulations ... (d) prescribing the form and manner in which information shall be disclosed on a label and the manner in which a label shall be applied to a controlled product or container in which a controlled product is packaged; prescribing hazard symbols and the manner in which hazard symbols shall be displayed on a controlled product or container in which a controlled product is packaged;

(e)

43 From the foregoing, it is clear that Parliament could, if it chose, validly prohibit the manufacture and sale of tobacco products under the criminal law power on the ground that these products 217

constitute a danger to public health. Such a prohibition would be directly analogous to the prohibitions on dangerous drugs and unsanitary foods or poisons mentioned earlier, which quite clearly fall within the federal criminal law power. In my view, once it is accepted that Parliament may validly legislate under the criminal law power with respect to the manufacture and sale of tobacco products, it logically follows that Parliament may also validly legislate under that power to prohibit the advertisement of tobacco products and sales of products without health warnings. In either case, Parliament is legislating to effect the same underlying criminal public purpose: protecting Canadians from harmful and dangerous products. 44 Seen in this light, the only true distinction that can be drawn between the measures adopted under the Act and an outright prohibition on the sale or consumption of tobacco is with respect to the form employed by Parliament to combat the "evil" of tobacco consumption. However, such a distinction, unaccompanied by any evidence of colourability, is not constitutionally significant. Once it is conceded, as I believe it must be, that tobacco consumption has detrimental health effects and that Parliament's intent in enacting this legislation was to combat these effects, then the wisdom of Parliament's choice of method cannot be determinative with respect to Parliament's power to legislate. The goal in a pith and substance analysis is to determine Parliament's underlying purpose in enacting a particular piece of legislation; it is not to determine whether Parliament has chosen that purpose wisely or whether Parliament would have achieved that purpose more effectively by legislating in other ways; see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 358 (per Wilson J.) and Morgentaler, supra, at p. 487: Only when the effects of the legislation so directly impinge on some other subject matter as to reflect some alternative or ulterior purpose do the effects themselves take on analytic significance. There is no evidence that the practical effect of the Act, or the lack thereof, reflects any "alternative or ulterior purpose". The Appellants' Principal Arguments 45 The foregoing considerations, it seems to me, are sufficient to establish that the pith and substance of the Act is criminal law for the purpose of protecting public health and that Parliament accordingly has the legislative authority under s. 91(27) of the Constitution Act, 1867 to enact this legislation. However, I think it right to address directly the three principal arguments raised by the appellants in support of their submission that the Act is not valid as criminal law: first, that the conduct prohibited by the Act does not have an "affinity with a traditional criminal law concern"; second, that Parliament cannot criminalize an activity ancillary to an "evil" if it does not criminalize the "evil" itself; and, third, that the Act is more properly characterized as regulatory, not criminal, legislation. I will now address each of these arguments in turn. i. Affinity of the Act with a Traditional Criminal Law Concern 218

46 The appellants' first argument is that the Act is not a valid exercise of the criminal law power because it does not involve conduct having an affinity with a traditional criminal law concern. The appellants observe that both tobacco consumption and tobacco advertising have always been legal in this country and, on this basis, argue that this legislation does not serve a "public purpose commonly recognized as being criminal in nature"; see Swain, supra, at p. 998. 47 In my view, this argument fails because it neglects the well-established principle that the definition of the criminal law is not "frozen as of some particular time"; see Zelensky, supra, at p. 951 (per Laskin C.J.). It has long been recognized that Parliament's power to legislate with respect to the criminal law must, of necessity, include the power to create new crimes. This was made clear as early as 1931, when the Privy Council upheld the validity of the Combines Investigation Act, R.S.C. 1927, c. 26, in PATA, supra. That legislation criminalized a wide array of commercial activities not hitherto perceived to have an affinity with criminal law concerns. However, Lord Atkin explained that this fact alone was not sufficient to preclude the application of the criminal law power. He stated, at pp. 32324: In their Lordships' opinion s. 498 of the Criminal Code and the greater part of the provisions of the Combines Investigation Act fall within the power of the Dominion Parliament to legislate as to matters falling within the class of subjects, "the criminal law including the procedure in criminal matters" (s. 91, head 27). The substance of the Act is by s. 2 to define, and by s. 32 to make criminal, combines which the legislature in the public interest intends to prohibit. The definition is wide, and may cover activities which have not hitherto been considered to be criminal. But only those combines are affected "which have operated or are likely to operate to the detriment or against the interest of the public, whether consumers, producers, or others"; and if Parliament genuinely determines that commercial activities which can be so described are to be suppressed in the public interest, their Lordships see no reason why Parliament should not make them crimes. "Criminal law" means "the criminal law in its widest sense": AttorneyGeneral for Ontario v. Hamilton Street Ry. Co., [1903] A.C. 524. It certainly is not confined to what was criminal by the law of England or of any Province in 1867. The power must extend to legislation to make new crimes. . . . It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of "criminal jurisprudence"; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes. . . . [Emphasis added.] Soon after that decision, in Attorney-General for British Columbia v. Attorney-General for Canada, [1937] A.C. 368, the Privy Council adopted similar reasoning to uphold a prohibition on price discrimination under the criminal law power. Later, this Court, following in large part the reasoning employed by the Privy Council in PATA, supra, sustained a prohibition of resale price maintenance under the criminal law power (Campbell v. The Queen, [1965] S.C.R. vii) and a federal law authorizing

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the courts to make orders prohibiting the continuation of illegal practices or to dissolve illegal mergers; see Goodyear Tire, supra. In the Goodyear Tire case, at p. 311, Rand J. reaffirmed the reasoning in the PATA case and made the following observation: It is accepted that head 27 of s. 91 of the Confederation statute is to be interpreted in the widest sense, but that breadth of scope contemplates neither a static catalogue of offences nor order of sanctions. The evolving and transforming types and patterns of social and economic activities are constantly calling for new penal controls and limitations and that new modes of enforcement and punishment adapted to the changing conditions are not to be taken as being equally within the ambit of parliamentary power is, in my opinion, not seriously arguable. 48 In my view, the reasoning in PATA and Goodyear Tire is directly applicable here. The simple fact that neither tobacco consumption nor tobacco advertising have been illegal in the past in no way precludes Parliament from criminalizing either of those activities today. Indeed, given the fact that the first medical reports linking cigarette smoking to disease did not emerge until the 1950s, and that governments have only recently been made aware of the truly devastating health consequences of tobacco consumption, it is clear that Parliament had no reason, before that time, to criminalize this activity. The evolution in medical knowledge since the 1950s has radically altered the social and political landscape, producing a growing consensus, both nationally and internationally, that tobacco consumption is a sui generis problem that can only be properly addressed with an array of innovative and multifaceted legislative responses. In Canada, the decision to criminalize tobacco advertising was made incrementally, as part of a 25-year public policy process, and only after Parliament had determined that there was compelling evidence concerning the health effects of tobacco consumption and that the variety of non-criminal measures then in place were not sufficiently effective in reducing consumption. It would be artificial, if not absurd, to limit Parliament's power to legislate in this emerging area of public health concern simply because it did not, and logically could not, legislate at an earlier time. ii. The Ancillary Nature of the Prohibited Act

49 The appellants' second argument is that the Act lacks the requisite "criminal public purpose" because Parliament cannot criminalize an activity ancillary to an "evil" (the advertisement and promotion of tobacco), when the underlying activity the legislation is designed to combat (the manufacture, sale and consumption of tobacco) is itself legal. 50 In my view, this argument fails because it cannot be reconciled with the recent jurisprudence of this Court. In both Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (the Prostitution Reference), and Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, this Court upheld the constitutionality of legislation that criminalized an ancillary activity without also criminalizing the underlying activity or "evil". In the Prostitution Reference, for example, this Court upheld the constitutionality of ss. 193 and 195.1(1)(c) of the Criminal Code, R.S.C. 1970, c. C-

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34, which prohibited the solicitation of clients for prostitution and the operation of bawdy houses, but did not, at the same time, prohibit prostitution itself. In reaching the conclusion that these provisions were constitutionally valid, Dickson C.J. reasoned as follows, at p. 1142: While I recognize that Parliament has chosen a circuitous path, I find it difficult to say that Parliament cannot take this route. The issue is not whether the legislative scheme is frustrating or unwise but whether the scheme offends the basic tenets of our legal system. The fact that the sale of sex for money is not a criminal act under Canadian law does not mean that Parliament must refrain from using the criminal law to express society's disapprobation of street solicitation. Unless or until this Court is faced with the direct question of Parliament's competence to criminalize prostitution, it is difficult to say that Parliament cannot criminalize and thereby indirectly control some element of prostitution -- that is, street solicitation. [Emphasis in original.] In that case, Lamer J. (as he then was) also made the following observation, at p. 1191: As I have noted above, prostitution itself is not a crime in Canada. Our legislators have instead, chosen to attack prostitution indirectly. The Criminal Code contains many prohibitions relating to the act of taking money in return for sexual services. Among the offences that relate to prostitution are the bawdy-house provisions, the procuring and pimping provisions, as well as other more general offences that indirectly have an impact on prostitution related activities; for example provisions such as disturbing the peace. In my view, these laws indicate that while on the face of the legislation the act of prostitution is not illegal, our legislators are indeed aiming at eradicating the practice. A similar line of reasoning was employed by this Court in Rodriguez, supra, where the constitutionality of a prohibition against assisted suicide under s. 214(b) of the Criminal Code, R.S.C., 1985, c. C-46, was upheld despite the fact that suicide itself was, and is at present, not illegal in this country. 51 In my view, the reasoning in the Prostitution Reference and Rodriguez is directly applicable to the present cases. Although the manufacture, sale and consumption of tobacco has not been criminalized under the Act, it is clear that Parliament's underlying purpose in criminalizing tobacco advertising and promotion is to eradicate the practice. The fact that Parliament has chosen a "circuitous path" to accomplish this goal does not in any way lessen the constitutional validity of the goal. I emphasize once again that it is the pith and substance of the legislation, not Parliament's wisdom in choosing the legislative method, that is the touchstone in a division of powers analysis. iii. The Creation of Exemptions Under the Criminal Law Power

52 The appellants' third argument is that the Act is fundamentally regulatory, not criminal, in nature. In support of this argument, they observe that the Act contains exemptions for publications and broadcasts originating outside Canada (s. 4(3)), for the Dunhill trademark (s. 8(3)), and for tobacco 221

product substitutes exempted by the Governor in Council on the ground that they pose less risk to the health of users (s. 17(a)). The practical effect of these exemptions, the appellants argue, is that the very same act can be legal when committed by one party in Canada but illegal when committed by another. 53 In my view, this argument fails because it disregards the long-established principle that the criminal law may validly contain exemptions for certain conduct without losing its status as criminal law. As early as 1959, in Lord's Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497, this Court held that the Lord's Day Act, R.S.C. 1952, c. 171, which prohibited gambling on Sunday, was a valid exercise of the criminal law power despite the fact that s. 6 of that Act created an exemption for provinces which had passed legislation to the contrary. In upholding the validity of the Act, Rand J. explained, at pp. 509-10, that this exemption did not detract from the criminal nature of the legislation: The legislative efficacy in prohibiting the activity named is that solely of Parliament; the effect of the exception is to declare that in the presence of a provincial enactment of the appropriate character the scope of s. 6 automatically ceases to extend to the provincial area covered by that enactment. The latter is a condition of fact in relation to which Parliament itself has provided a limitation for its own legislative act. That Parliament can so limit the operation of its own legislation and that it may do so upon any such event or condition is not open to serious debate. 54 This principle was reiterated in Morgentaler v. The Queen, [1976] 1 S.C.R. 616, where this Court addressed the constitutionality of s. 251 of the Criminal Code, R.S.C. 1970, c. C-34. Under s. 251(1) of the Code, the intentional procurement of a miscarriage was declared to be unlawful. However, under s. 251(4) and (5), Parliament had also created an exemption for miscarriages carried out by qualified medical practitioners where the life of the woman was in danger. Laskin C.J., dissenting in the result but not on this issue, made it clear that the creation of such an exemption did not detract from the validity of the provision as criminal law, at p. 627: I need cite no authority for the proposition that Parliament may determine what is not criminal as well as what is, and may hence introduce dispensations or exemptions in its criminal legislation. It has done this in respect of gaming and betting by prescribing for lawful operation of pari-mutuel systems . . ., by exempting agricultural fairs or exhibitions from certain of the prohibitions against lotteries and games of chance . . . and by expressly permitting lotteries under stated conditions. . . . 55 Most recently, in R. v. Furtney, [1991] 3 S.C.R. 89, this Court reaffirmed Laskin C.J.'s conclusion. In Furtney, the Court addressed a challenge to s. 207 of the Criminal Code, R.S.C., 1985, c. C-46, which prohibited lotteries but created an exemption for provincial lotteries conducted in accordance with terms and conditions of licences issued by the Lieutenant Governor. The Court held that the Code provision was valid criminal law, even though it delegated regulatory power to the provincial

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Lieutenant Governors in Council to create exemptions. In reaching the conclusion that s. 207 was a valid exercise of the criminal law power, Stevenson J. stated, at p. 105: I note that these very provisions were referred to as valid by Laskin C.J. in his dissenting judgment (the majority not addressing the matter) in Morgentaler v. The Queen, [1976] 1 S.C.R. 616. The Chief Justice (at p. 627) referred to Parliament's authority to introduce dispensations or exemptions from criminal law in determining what is and what is not criminal. Stevenson J. expressed his agreement with Laskin C.J.'s view and gave the following rationale for his conclusion, at pp. 106-7: The appellants question whether the criminal law power will sustain the establishment of a regulatory scheme in which an administrative agency or official exercises discretionary authority. In so doing they ask the question "referred to by Professor Hogg" in his Constitutional Law of Canada . . . at p. 415. Hogg suggests that the question is really one of colourability. . . . In my view the decriminalization of lotteries licensed under prescribed conditions is not colourable. It constitutes a definition of the crime, defining the reach of the offence, a constitutionally permissive exercise of the criminal law power, reducing the area subject to criminal law prohibition where certain conditions exist. I cannot characterize it as an invasion of provincial powers any more than the appellants were themselves able to do. [Emphasis added.] 56 The clear implication of this Court's decisions in Lord's Day Alliance, Morgentaler and Furtney, is that the creation of a broad status-based exemption to criminal legislation does not detract from the criminal nature of the legislation. On the contrary, the exemption helps to define the crime by clarifying its contours. In my view, this is precisely what Parliament has done in creating exemptions under the Act. The crime created by Parliament is the advertisement and promotion of tobacco products offered for sale in Canada. Rather than diluting the criminality of these acts, the exemptions to which the appellants refer serve merely to delineate the logical and practical limits to Parliament's exercise of the criminal law power in this context. For example, it is clear that the exemption for foreign media under s. 4(3) was created to avoid both the extraterritorial application of Canadian legislation and the page-by-page censorship of foreign publications at the border. It must also be kept in mind that the exemption thereby created extends only to foreign publications imported into Canada or the retransmission of broadcasts originating outside Canada. Section 4(4) limits this exemption by prohibiting persons in Canada from advertising products for sale in Canada by way of foreign publications of broadcasts. Given the fact that foreign tobacco products comprise less than 1 percent of the Canadian market, it is apparent that the exemption has an extremely limited scope. There is an equally logical and practical explanation for the exemptions created under ss. 17(a) and 8(3). With respect to the exemption under s. 17(a), which permits the Governor in Council to make regulations exempting substitute tobacco products from the application of ss. 4 and 7 where they pose less risk to the health of users, it is clear that Parliament was seeking to encourage the development of 223

alternatives to tobacco. Such an exemption is, of course, completely consistent with the Act's underlying purpose of protecting public health. With respect to the exemption for Dunhill products under s. 8(3), it is clear that Parliament was addressing the legitimate concern that this trademark is unique because it has a marketing existence quite independent from tobacco. Thus, none of these exemptions serves in any way to confuse, or detract from, the category of acts Parliament has validly criminalized under the Act. 57 For all the foregoing reasons, I am of the view that the Act is a valid exercise of the federal criminal law power. Having reached this conclusion, I do not find it necessary to address the Attorney General's further submission that the Act falls under the federal power to legislate for the peace, order and good government of Canada. Accordingly, I now proceed directly to a consideration of the Act's validity under the Charter. [....] [McLachlin and Iacobucci JJ., who wrote for the majority on the Charter issue, explicitly concurred with LaForest J. on the division of powers issue.]

R. v. Hydro-Québec, 1997

[1997] 3 S.C.R. 213 Supreme Court of Canada Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC The reasons of Lamer C.J. and Sopinka, Iacobucci and Major JJ. were delivered by 1 LAMER C.J. and IACOBUCCI J. (dissenting):-- This appeal arose as a result of an interim order made in 1989 by the then Minister of the Environment of Canada, the Honourable Lucien Bouchard. It restricted the emission of chlorobiphenyls ("PCBs") to 1 gram per day. The respondent, Hydro-Québec, was charged with breaching this Interim Order and challenged the charges by claiming that the Interim Order, as well as the underlying provisions supporting it, were ultra vires Parliament as invading provincial territory. 2 We have had the advantage of reading the lucid reasons of La Forest J. While we share his concern for the protection of the environment, we are of the view that the impugned provisions cannot be justified under s. 91 of the Constitution Act, 1867, and are therefore ultra vires the federal government. Because of our disagreement with our colleague's approach, we will set out the relevant factual and judicial background. 224

[....] [Only the part of the dissent dealing with 91(27) is reproduced.] A. The Legislative Structure of the Act

15 The Canadian Environmental Protection Act was adopted by Parliament in 1988. It consolidated and replaced several other laws dealing with various kinds of environmental protection. Part II of the Act, which contains ss. 34 and 35, is called "Toxic Substances" and deals with the identification and regulation of substances which could potentially pose a risk to the environment and/or to human health. According to s. 11 of the Act, a substance is toxic where "it is entering or may enter the environment" under conditions "having or that may have an immediate or long-term harmful effect on the environment", "constituting or that may constitute a danger to the environment on which human life depends", or "constituting or that may constitute a danger in Canada to human life or health". Section 3 broadly defines a "substance" as "any distinguishable kind of organic or inorganic matter, whether animate or inanimate" and the "environment" as "the components of the Earth". "Harmful effect" and "danger" are not defined. 16 The Act instructs the Ministers of the Environment and Health to compile and maintain four lists: the Domestic Substances List (DSL), the Non-Domestic Substances List (NDSL), the Priority Substances List (PSL) and the List of Toxic Substances (LTS). The DSL includes all substances in use in Canada since 1986 (some 21,700 substances as of January 1991). The NDSL contains all other substances. At present, the NDSL list includes over 41,000 substances. See E. A. Fitzgerald, "The Constitutionality of Toxic Substances Regulation Under the Canadian Environmental Protection Act" (1996), 30 U.B.C. L. Rev. 55, at p. 70. There is a blanket restriction on importing NDSL substances into Canada until they are approved (s. 26). 17 Sections 12 and 13 of the Act require the Ministers to compile a "Priority Substances List" specifying those substances to which priority should be given in determining whether or not they should be placed on the List of Toxic Substances. Under s. 15, either the Minister of the Environment or the Minister of Health may conduct investigations with a view to determining whether a given substance is toxic. The Ministers may examine, inter alia, the nature of the substance in question, its effects on natural biological processes, the extent to which the substance will persist in the environment, its ability to bio-accumulate, methods of controlling it, and methods of reducing the amount of it used. Section 16 provides that the Minister of the Environment can require private citizens to provide him or her with information about, or samples of, substances which the Minister suspects may be toxic and under s. 18, the Minister can order that persons with information about a substance which might be toxic provide that information to him or her. 18 Once a priority listed substance is found to be toxic within the meaning of s. 11, the Ministers may recommend adding it to the List of Toxic Substances. After a federal-provincial advisory

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committee (established under s. 6) has been given an opportunity to provide its advice, the Governor in Council may add the substance to the list and bring it under the regulatory control of s. 34. 19 Section 34 provides for the regulation of substances on the List of Toxic Substances. The Governor in Council is given extensive powers to prescribe regulations dealing with every conceivable aspect of the listed substance, including: the quantity or concentration in which it can be released; the commercial or manufacturing activity in the course of which it can be released; the quantity of that substance that can be manufactured, imported, owned, sold, or used -- including total prohibitions on its manufacture, importation, ownership, use or sale -- and likewise the manner in and purposes for which it can be manufactured, imported, processed, used, offered for sale or sold; the manner and conditions in which the substance may be advertised, stored, displayed, handled, transported or offered for transport; the manner, conditions, places and method of disposal of the substance; the maintenance of books and records in respect of the substance; and the extent to which reports must be made to the Minister regarding the monitoring of the substance. Section 34(1)(x) allows the Governor in Council to regulate "any other matter necessary to carry out the purposes of this Part". 20 Where a substance is not on the List of Toxic Substances (or where it is listed, but the Ministers believe that it is not adequately regulated), and where the Ministers believe that immediate action is necessary in respect of that substance, s. 35 allows for the making of "interim orders" without going through the usual procedure. These orders can contain any regulation which could have been made under s. 34, but they remain in effect for only 14 days unless they are approved by the Governor in Council. Approval can be given only if, inter alia, the Ministers have offered to consult with the governments of any affected provinces to see whether they are prepared to take sufficient action to deal with the threat posed by the substance (s. 35(4)). According to s. 35(8), interim orders expire after two years, even if such approval is granted. 21 As stated above, this appeal arose as a result of an interim order made in 1989 by the then Minister of the Environment, the Honourable Lucien Bouchard. It restricted the emission of chlorobiphenyls ("PCBs") to 1 gram per day. The respondent was charged with breaching this Interim Order and challenged the charges by claiming that the Interim Order, as well as the underlying provisions supporting it, were ultra vires Parliament. 22 Finally, the Act prescribes a number of civil and criminal penalties. Section 113(f), for example, creates an offence of contravening regulations made under s. 34. The punishment ranges from a maximum $300,000 fine or six months imprisonment (or both) on summary conviction to a maximum $1 million fine or three years imprisonment (or both) on indictment. A defence of due diligence is allowed for all offences under the Act except those under s. 114 (knowingly providing false or misleading information), s. 115(1)(a) (intentionally or recklessly causing an environmental disaster) or s. 115(1)(b) (showing wanton or reckless disregard for the lives or safety of other persons). These offences require a higher standard of moral culpability.

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[....] C. The Criminal Law Power

34 Parliament has been given broad and exclusive power to legislate in relation to criminal law by virtue of s. 91(27): RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Scowby v. Glendinning, [1986] 2 S.C.R. 226. This power has traditionally been construed generously. As La Forest J. noted in RJR-MacDonald, at p. 240, "[i]n developing a definition of the criminal law, this Court has been careful not to freeze the definition in time or confine it to a fixed domain of activity". 35 Nevertheless, the criminal law power has always been made subject to two requirements: laws purporting to be upheld under s. 91(27) must contain prohibitions backed by penalties; and they must be directed at a "legitimate public purpose" (Scowby, at p. 237). ... [....] (i) A Legitimate Public Purpose

39 The appellant and several interveners urged us to uphold the provisions as related to health, one of the criminal public purposes recognized in the Margarine Reference, supra. In this regard, they cited numerous studies outlining the hazardous effects of PCBs, which were the subject of the Interim Order that gave rise to this litigation. See e.g. Canadian Council of Resource and Environment Ministers, The PCB Story (1986); Health and Welfare Canada, A Review of the Toxicology and Human Health Aspects of PCB's (1978-1982) (1985). With respect, the toxicity of PCBs, while clearly important to the environment itself, is not directly relevant to this appeal, since what is at issue is not simply the Interim Order, but the enabling provisions under which that order was enacted. That is, the question is not whether PCBs pose a danger to human health, which it appears they clearly do, but whether the Act purports to grant federal regulatory power over substances which may not pose such a danger. 40 In our view, there is no question but that the Act does so. Section 11 provides as follows: 11. For the purposes of this Part, a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions (a) having or that may have an immediate or long-term harmful effect on the environment; (b) constituting or that may constitute a danger to the environment on which human life depends; or constituting or that may constitute a danger in Canada to human life or health.

(c)

41 As noted above, these are not cumulative requirements. It is not necessary that a substance constitute a danger to human life or health for it to be labelled "toxic" and brought under federal 227

control; under s. 11(a), it is enough that it may have a harmful effect on the environment. It is not even necessary to show that the aspect of the environment threatened be one upon which human life depends; this is made a separate category under s. 11(b), and should not, therefore, be read into s. 11(a). A substance which affected groundhogs, for example, but which had no effect on people could be labelled "toxic" under s. 11(a) and made subject to wholesale federal regulation. 42 By defining "toxic" in this way, Parliament has taken explicit steps to ensure that no risk to human life or health, direct or indirect, would have to be proven before regulatory control could be assumed over a given substance. As such, we cannot see how the provisions can be upheld as legislation relating to health. Their scope extends well beyond matters relating to human health into the realm of general ecological protection. Parliament's clear intention was to allow for federal intervention where the environment itself was at risk, whether or not the substances concerned posed a threat to human health and whether or not the aspect of the environment affected was one on which human life depended. Having specifically excluded both direct and indirect danger to human health as preconditions for the application of these provisions, Parliament cannot now say that they were enacted in order to guard against such dangers. 43 To the extent that La Forest J. suggests that this legislation is supportable as relating to health, therefore, we must respectfully disagree. We agree with him, however, that the protection of the environment is itself a legitimate criminal public purpose, analogous to those cited in the Margarine Reference, supra. We would not add to his lucid reasoning on this point, save to state explicitly that this purpose does not rely on any of the other traditional purposes of criminal law (health, security, public order, etc.). To the extent that Parliament wishes to deter environmental pollution specifically by punishing it with appropriate penal sanctions, it is free to do so, without having to show that these sanctions are ultimately aimed at achieving one of the "traditional" aims of criminal law. The protection of the environment is itself a legitimate basis for criminal legislation. 44 However, we still do not feel that the impugned provisions qualify as criminal law under s. 91(27). While they have a legitimate criminal purpose, they fail to meet the other half of the Maragarine Reference test. The structure of Part II of the Act indicates that they are not intended to prohibit environmental pollution, but simply to regulate it. As we will now explain in further detail, they are not, therefore, criminal law: see Hauser, supra, at p. 999. (ii) Prohibitions Backed by Penalties

45 Ascertaining whether a particular statute is prohibitive or regulatory in nature is often more of an art than a science. As Cory J. acknowledged in Knox Contracting, supra, what constitutes criminal law is often "easier to recognize than define" (p. 347). Some guidelines have, however, emerged from previous jurisprudence. 46 The fact that a statute contains a prohibition and a penalty does not necessarily mean that statute is criminal in nature. Regulatory statutes commonly prohibit violations of their provisions or 228

regulations promulgated under them and provide penal sanctions to be applied if violations do, in fact, occur. Any regulatory statute that lacked such prohibitions and penalties would be meaningless. However, as La Forest J. himself recognized in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 508-17, and in R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, at p. 650, the penalties that are provided in a regulatory context serve a "pragmatic" or "instrumental" purpose and do not transform the legislation into criminal law. (Also see Wetmore, supra, Scowby, supra, and Knox Contracting, supra.) In environmental law, as in competition law or income tax law, compliance cannot always be ensured by the usual regulatory enforcement techniques, such as periodic or unannounced inspections. Hence, in order to ensure that legal standards are being met, a strong deterrent, the threat of penal sanctions, is necessary. La Forest J. relied on this rationale in concluding that the penal sanctions contained in the Competition Act (in Thomson Newspapers) and the Income Tax Act (in McKinlay Transport) did not affect the characterization of those statutes as regulatory in nature for purposes of s. 8 of the Canadian Charter of Rights and Freedoms. 47 At the same time, however, a criminal law does not have to consist solely of blanket prohibitions. It may, as La Forest J. noted in RJR-MacDonald, supra, at pp. 263-64, "validly contain exemptions for certain conduct without losing its status as criminal law". See also Lord's Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497; Morgentaler, supra; R. v. Furtney, [1991] 3 S.C.R. 89. These exemptions may have the effect of establishing "regulatory" schemes which confer a measure of discretionary authority without changing the character of the law, as was the case in RJRMacDonald. 48 Determining when a piece of legislation has crossed the line from criminal to regulatory involves, in our view, considering the nature and extent of the regulation it creates, as well as the context within which it purports to apply. A scheme which is fundamentally regulatory, for example, will not be saved by calling it an "exemption". As Professor Hogg suggests, supra, at p. 18-26, "the more elaborate [a] regulatory scheme, the more likely it is that the Court will classify the dispensation or exemption as being regulatory rather than criminal". At the same time, the subject matter of the impugned law may indicate the appropriate approach to take in characterizing the law as criminal or regulatory. 49 Having examined the legislation at issue in this case, we have no doubt that it is essentially regulatory in nature, and therefore outside the scope of s. 91(27). In order to have an "exemption", there must first be a prohibition in the legislation from which that exemption is derived. Thus, the Tobacco Products Control Act, S.C. 1988, c. 20, at issue in RJR-MacDonald, supra, contained broad prohibitions against the advertising and promotion of tobacco products in Canada. Section 4 of that Act provided that "[n]o person shall advertise any tobacco product offered for sale in Canada". It also provided a labelling requirement in the form of a prohibition, stating in s. 9 that it was illegal to sell tobacco products without printed health warnings. Any exemptions from these general prohibitions were just that -- exceptions to a general rule.

229

50 Similarly, the Food and Drugs Act, R.S.C., 1985, c. F-27, upheld in Wetmore, supra, contains several prohibitions at the beginning of its Part I. It prohibits, inter alia, the advertising of any food, drug, cosmetic or device with respect to a prescribed list of diseases, disorders or abnormal physical states (s. 3); the selling of food or drug that is adulterated or prepared under unsanitary conditions (ss. 4 and 8); the labelling, packaging, selling or advertising of any food, drug or device in a manner that is false, misleading or deceptive (ss. 5(1), 9(1) and 20(1)); the distribution of any drug as a sample (s. 14); and the selling of any cosmetic that may cause injury to the health of the user or was prepared under unsanitary conditions (s. 16). There are also a number of prohibitions with respect to controlled drugs in Part III of the Act and restricted drugs in Part IV. 51 In the legislation at issue in this appeal, on the other hand, no such prohibitions appear. Section 34(1) of the Canadian Environmental Protection Act reads as follows: 34. (1) Subject to subsection (3), the Governor in Council may, on the recommendation of the Ministers and after the federal-provincial advisory committee is given an opportunity to provide its advice under section 6, make regulations with respect to a substance specified on the List of Toxic Substances in Schedule I, including regulations providing for, or imposing requirements respecting, (a) the quantity or concentration of the substance that may be released into the environment either alone or in combination with any other substance from any source or type of source; the places or areas where the substance may be released; the commercial, manufacturing or processing activity in the course of which the substance may be released; the manner in which and conditions under which the substance may be released into the environment, either alone or in combination with any other substance; the quantity of the substance that may be manufactured, processed, used, offered for sale or sold in Canada; the purposes for which the substance or a product containing the substance may be imported, manufactured, processed, used, offered for sale or sold; the manner in which and conditions under which the substance or a product containing the substance may be imported, manufactured, processed or used;

(b) (c)

(d)

(e)

(f)

(g)

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(h) (i) (j)

the quantities or concentrations in which the substance may be used; the quantities or concentrations of the substance that may be imported; the countries from or to which the substance may be imported or exported; the conditions under which, the manner in which and the purposes for which the substance may be imported or exported; the total, partial or conditional prohibition of the manufacture, use, processing, sale, offering for sale, import or export of the substance or a product containing the substance; the quantity or concentration of the substance that may be contained in any product manufactured, imported, exported or offered for sale in Canada; the manner in which and conditions under which and the purposes for which the substance or a product containing the substance may be advertised or offered for sale; the manner in which and conditions under which the substance or a product or material containing the substance may be stored, displayed, handled, transported or offered for transport; the packaging and labelling of the substance or a product or material containing the substance; the manner, conditions, places and method of disposal of the substance or a product or material containing the substance, including standards for the construction, maintenance and inspection of disposal sites; the submission to the Minister, on request or at such times as are prescribed, of information relating to the substance; the maintenance of books and records for the administration of any regulation made under this section; the conduct of sampling, analyses, tests, measurements or monitoring of the substance and the submission of the results to the Minister; the submission of samples of the substance to the Minister;

(k)

(l)

(m)

(n)

(o)

(p)

(q)

(r)

(s)

(t)

(u)

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(v)

the methods and procedures for conducting sampling, analyses, tests, measurements or monitoring of the substance; circumstances or conditions under which the Minister may, for the proper administration of this Act, modify (i) any requirement for sampling, analyses, tests, measurements or monitoring, or the methods and procedures for conducting any required sampling, analyses, tests, measurements or monitoring; and

(w)

(ii)

(x)

any other matter necessary to carry out the purposes of this Part.

52 This section is not ancillary to existing prohibitions found elsewhere in the Act or to exemptions to such prohibitions. It is not itself prohibitory in nature. In fact, the only time the word "prohibition" appears in s. 34(1) is in s. 34(1)(l), which provides that the Governor in Council may, at his or her discretion, prohibit the manufacture, import, use or sale of a given substance. Clearly, this is not analogous to the broad general prohibitions found in the statutes cited above. 53 The only other mentions of prohibition in relation to the impugned provisions are in ss. 113(f) and 113(i) of the Act, which provide that failure to comply with a regulation made under ss. 34 or 35 is an offence. The prohibitions, such as they are, are ancillary to the regulatory scheme, not the other way around. This strongly suggests that the focus of the legislation is regulation rather than prohibition. 54 Moreover, as Professor Hogg notes, supra, at p. 18-24: A criminal law ordinarily consists of a prohibition which is to be self-applied by the persons to whom it is addressed. There is not normally any intervention by an administrative agency or official prior to the application of the law. The law is "administered" by law enforcement officials and courts of criminal jurisdiction only in the sense that they can bring to bear the machinery of punishment after the prohibited conduct has occurred. 55 In this case, there is no offence until an administrative agency "intervenes". Sections 34 and 35 do not define an offence at all: which, if any, substances will be placed on the List of Toxic Substances, as well as the norms of conduct regarding these substances, are to be defined on an on-going basis by the Ministers of Health and the Environment. It would be an odd crime whose definition was made entirely dependent on the discretion of the Executive. This further suggests that the Act's true nature is regulatory, not criminal, and that the offences created by s. 113 are regulatory offences, not "true crimes": see R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, per Cory J. Our colleague, La Forest J., would hold that the scheme of the impugned act is an effective means of avoiding unnecessarily broad prohibitions and carefully targeting specific toxic substances. The regulatory mechanism allows

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the schemes to be changed flexibly, as the need arises. Of course, simply because a scheme is effective and flexible does not mean it is intra vires the federal Parliament. 56 This is particularly true in light of the striking breadth of the impugned provisions. The 24 listed heads of authority in s. 34 allow for the regulation of every conceivable aspect of toxic substances; in fact, in case anything was left out, s. 34(1)(x) provides for regulations concerning "any other matter necessary to carry out the purposes of this Part". It is highly unlikely, in our opinion, that Parliament intended to leave the criminalization of such a sweeping area of behaviour to the discretion of the Ministers of Health and the Environment. 57 Moreover, this process is further complicated by the equivalency provisions in s. 34(6) of the Act. Under this provision, the Governor in Council may exempt a province from the application of regulations made under ss. 34 or 35 if that province already has equivalent regulations in force there. This would be a very unusual provision for a criminal law. Provinces do not have the jurisdiction to enact criminal legislation, nor can the federal government delegate such jurisdiction to them: Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31. Any environmental legislation enacted by the provinces must, therefore, be of a regulatory nature. Deferring to provincial regulatory schemes on the basis that they are "equivalent" to federal regulations made under s. 34(1) creates a strong presumption that the federal regulations are themselves also of a regulatory, not criminal, nature. 58 The appellant relies on this Court's decision in RJR-MacDonald, supra, arguing that the statutory regime in this case is analogous to that upheld (on division of powers grounds) in RJR-MacDonald. We believe this reliance is, with respect, misplaced. As noted above, the legislation at issue in RJRMacDonald contained broad prohibitions, tempered by certain exemptions. The impugned provisions in this case, on the other hand, involve no such general prohibition. In our view, they can only be characterized as a broad delegation of regulatory authority to the Governor in Council. The aim of these provisions is not to prohibit toxic substances or any aspect of their use, but simply to control the manner in which these substances will be allowed to interact with the environment. 59 RJR-MacDonald, may be further distinguished, in our view. The Tobacco Products Control Act addressed a narrow field of activity: the advertising and promotion of tobacco products. The impugned provisions here deal with a much broader area of concern: the release of substances into the environment. This Court has unanimously held that the environment is a subject matter of shared jurisdiction, that is, that the Constitution does not assign it exclusively to either the provinces or Parliament: Oldman River, supra, at p. 63; see also Crown Zellerbach, supra, at pp. 455-56, per La Forest J. A decision by the framers of the Constitution not to give one level of government exclusive control over a subject matter should, in our opinion, act as a signal that the two levels of government are meant to operate in tandem with regard to that subject matter. One level should not be allowed to take over the field so as to completely dwarf the presence of the other. This does not mean that no regulation will be permissible, but wholesale regulatory authority of the type envisaged by the Act is, in 233

our view, inconsistent with the shared nature of jurisdiction over the environment. As La Forest J. noted in his dissenting reasons in Crown Zellerbach, at p. 455, "environmental pollution alone [i.e. as a subject matter of legislative authority] is itself all-pervasive. It is a by-product of everything we do. In man's relationship with his environment, waste is unavoidable." 60 We agree completely with this statement. Almost everything we do involves "polluting" the environment in some way. The impugned provisions purport to grant regulatory authority over all aspects of any substance whose release into the environment "ha[s] or ... may have an immediate or long-term harmful effect on the environment" (s. 11(a)). One wonders just what, if any, role will be left for the provinces in dealing with environmental pollution if the federal government is given such total control over the release of these substances. Moreover, the countless spheres of human activity, both collective and individual, which could potentially fall under the ambit of the Act are apparent. Many of them fall within areas of jurisdiction granted to the provinces under s. 92. Granting Parliament the authority to regulate so completely the release of substances into the environment by determining whether or not they are "toxic" would not only inescapably preclude the possibility of shared environmental jurisdiction; it would also infringe severely on other heads of power assigned to the provinces. In this respect, we can do no better than to quote Professor Gibson, who wrote as follows in his article "Constitutional Jurisdiction over Environmental Management in Canada" (1973), 23 U.T.L.J. 54, at p. 85: [I]t is . . . obvious that 'environmental management' could never be treated as a constitutional unit under one order of government in any constitution that claimed to be federal, because no system in which one government was so powerful would be federal. 61 For all of the above reasons, we are unable to uphold the impugned provisions of the Act under the federal criminal law power. That being said, we wish to add that none of this should be read as foredooming future attempts by Parliament to create an effective national -- or, indeed, international - strategy for the protection of the environment. We agree with La Forest J. that achieving such a strategy is a public purpose of extreme importance and one of the major challenges of our time. There are, in this regard, many measures open to Parliament which will not offend the division of powers set out by the Constitution, notably the creation of environmental crimes. Nothing, in our view, prevents Parliament from outlawing certain kinds of behaviour on the basis that they are harmful to the environment. But such legislation must actually seek to outlaw this behaviour, not merely regulate it. 62 Other potential avenues include the power to address interprovincial or international environmental concerns under the peace, order and good government power, which is discussed below. Parliament is not without power to act in pursuit of national policies on environmental protection. But it must do so pursuant to the balance of powers assigned by ss. 91 and 92. Environmental protection must be achieved in accordance with the Constitution, not in spite of it. As Professor Bowden concludes in her case comment on Oldman River, supra, (1992), 56 Sask. L. Rev. 209,

234

at pp. 219-20, "it is only through legislative and policy initiatives at and between both levels of government that satisfactory solutions may be attainable". 63 The impugned provisions are not justified under s. 91(27) of the Constitution Act, 1867. We will now consider the appellant's second argument, namely that the provisions may be upheld under the peace, order and good government power. [....] The judgment of La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ. was delivered by 85 LA FOREST J.:-- This Court has in recent years been increasingly called upon to consider the interplay between federal and provincial legislative powers as they relate to environmental protection. Whether viewed positively as strategies for maintaining a clean environment, or negatively as measures to combat the evils of pollution, there can be no doubt that these measures relate to a public purpose of superordinate importance, and one in which all levels of government and numerous organs of the international community have become increasingly engaged. In the opening passage of this Court's reasons in what is perhaps the leading case, Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 16-17, the matter is succinctly put this way: The protection of the environment has become one of the major challenges of our time. To respond to this challenge, governments and international organizations have been engaged in the creation of a wide variety of legislative schemes and administrative structures. 86 The all-important duty of Parliament and the provincial legislatures to make full use of the legislative powers respectively assigned to them in protecting the environment has inevitably placed upon the courts the burden of progressively defining the extent to which these powers may be used to that end. In performing this task, it is incumbent on the courts to secure the basic balance between the two levels of government envisioned by the Constitution. However, in doing so, they must be mindful that the Constitution must be interpreted in a manner that is fully responsive to emerging realities and to the nature of the subject matter sought to be regulated. Given the pervasive and diffuse nature of the environment, this reality poses particular difficulties in this context. 87 This latest case in which this Court is required to define the nature of legislative powers over the environment is of major significance. The narrow issue raised is the extent to and manner in which the federal Parliament may control the amount of and conditions under which Chlorobiphenyls (PCBs) -substances well known to pose great dangers to humans and the environment generally -- may enter into the environment. However, the attack on the federal power to secure this end is not really aimed at the specific provisions respecting PCBs. Rather, it puts into question the constitutional validity of its enabling statutory provisions. What is really at stake is whether Part II ("Toxic Substances") of the Canadian Environmental Protection Act, R.S.C., 1985, c. 16 (4th Supp.), which empowers the federal Ministers of Health and of the Environment to determine what substances are toxic and to prohibit the 235

introduction of such substances into the environment except in accordance with specified terms and conditions, falls within the constitutional power of Parliament. [....] The Issues 108 In this Court, the appellant Attorney General of Canada seeks to support the impugned provisions of the Act on the basis of the national concern doctrine under the peace, order and good government clause of s. 91 or under the criminal law power under s. 91(27) of the Constitution Act, 1867. The respondent Hydro-Québec and the mis en cause Attorney General of Quebec dispute this. In broad terms, they say that the provisions are so invasive of provincial powers that they cannot be justified either under the national dimensions doctrine or under the criminal law power. The attack on the validity of the provisions under the latter power is also supported, most explicitly by the intervener the Attorney General for Saskatchewan, on the ground that they are, in essence, of a regulatory and not of a prohibitory character. Finally, I repeat that while the Interim Order precipitated the litigation, there is no doubt that the respondent and mis en cause as well as their supporting interveners are after bigger game -- the enabling provisions. 109 While both the national concern doctrine and the criminal law power received attention in the course of the argument, it is right to say that the principal focus in this Court was on the national concern issue. This may in fact be owing to the fact that this Court's most recent decision dealing extensively with the criminal law power, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, had not been decided when this case came before the courts whose judgments are under review in this case. Whatever the reason, many of the arguments and concerns seemed at times to be addressed at both legislative powers, and the general effect was to colour and I think at times to distort the approach that, in my view, should properly be taken to the criminal law power. Thus I found much of the discussion relating to the pith and substance of the legislation, as well as other matters to which I shall later refer, not altogether apt to a consideration of the criminal law power. 110 I make these remarks because, in my view, the impugned provisions are valid legislation under the criminal law power -- s. 91(27) of the Constitution Act, 1867. It thus becomes unnecessary to deal with the national concern doctrine, which inevitably raises profound issues respecting the federal structure of our Constitution which do not arise with anything like the same intensity in relation to the criminal law power. 111 In analysing the issues as they relate to the criminal law power, I propose to proceed in the following manner. I shall begin with introductory remarks reviewing the manner in which this Court has approached environmental issues arising under the division of powers under the Constitution Act, 1867. I shall then turn to a discussion of the federal criminal law power under s. 91(27) of that Act. This will be followed by a closer examination of Part II, Toxic Substances, of the Act. This will open the way

236

to a discussion of whether ss. 34 and 35, as well as the Interim Order, are valid exercises of the criminal law power. Analysis Introduction 112 In considering how the question of the constitutional validity of a legislative enactment relating to the environment should be approached, this Court in Oldman River, supra, made it clear that the environment is not, as such, a subject matter of legislation under the Constitution Act, 1867. As it was put there, "the Constitution Act, 1867 has not assigned the matter of 'environment' sui generis to either the provinces or Parliament" (p. 63). Rather, it is a diffuse subject that cuts across many different areas of constitutional responsibility, some federal, some provincial (pp. 63-64). Thus Parliament or a provincial legislature can, in advancing the scheme or purpose of a statute, enact provisions minimizing or preventing the detrimental impact that statute may have on the environment, prohibit pollution, and the like. In assessing the constitutional validity of a provision relating to the environment, therefore, what must first be done is to look at the catalogue of legislative powers listed in the Constitution Act, 1867 to see if the provision falls within one or more of the powers assigned to the body (whether Parliament or a provincial legislature) that enacted the legislation (ibid. at p. 65). If the provision in essence, in pith and substance, falls within the parameters of any such power, then it is constitutionally valid. 113 Though pith and substance may be described in different ways, the expressions "dominant purpose" or "true character" used in R. v. Morgentaler, [1993] 3 S.C.R. 463, at pp. 481-82, or "the dominant or most important characteristic of the challenged law" used in Whitbread v. Walley, [1990] 3 S.C.R. 1273, at p. 1286, and in Oldman River, supra, at p. 62, appropriately convey the meaning to be attached to the term. If a provision dealing with the environment is really aimed at promoting the dominant purpose of the statute or at addressing the impact of a statutory scheme, and the scheme itself is valid, then so is the provision. 114 In examining the validity of legislation in this way, it must be underlined that the nature of the relevant legislative powers must be examined. Different types of legislative powers may support different types of environmental provisions. The manner in which such provisions must be related to a legislative scheme was, by way of example, discussed in Oldman River in respect of railways, navigable waters and fisheries. An environmental provision may be validly aimed at curbing environmental damage, but in some cases the environmental damage may be directly related to the power itself. There is a considerable difference between regulating works and activities, like railways, and a resource like fisheries, and consequently the environmental provisions relating to each of these. Environmental provisions must be tied to the appropriate constitutional source. 115 Some heads of legislation may support a wholly different type of environmental provision than others. Notably under the general power to legislate for the peace, order and good government, 237

Parliament may enact a wide variety of environmental legislation in dealing with an emergency of sufficient magnitude to warrant resort to the power. But the emergency would, of course, have to be established. So too with the "national concern" doctrine, which formed the major focus of the present case. A discrete area of environmental legislative power can fall within that doctrine, provided it meets the criteria first developed in Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, and thus set forth in Crown Zellerbach, supra, at p. 432: 3. For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution;

Thus in the latter case, this Court held that marine pollution met those criteria and so fell within the exclusive legislative power of Parliament under the peace, order and good government clause. While the constitutional necessity of characterizing certain activities as beyond the scope of provincial legislation and falling within the national domain was accepted by all the members of the Court, the danger of too readily adopting this course was not lost on the minority. Determining that a particular subject matter is a matter of national concern involves the consequence that the matter falls within the exclusive and paramount power of Parliament and has obvious impact on the balance of Canadian federalism. In Crown Zellerbach, the minority (at p. 453) expressed the view that the subject of environmental protection was all-pervasive, and if accepted as falling within the general legislative domain of Parliament under the national concern doctrine, could radically alter the division of legislative power in Canada. 116 The minority position on this point (which was not addressed by the majority) was subsequently accepted by the whole Court in Oldman River, supra, at p. 64. The general thrust of that case is that the Constitution should be so interpreted as to afford both levels of government ample means to protect the environment while maintaining the general structure of the Constitution. This is hardly consistent with an enthusiastic adoption of the "national dimensions" doctrine. That doctrine can, it is true, be adopted where the criteria set forth in Crown Zellerbach are met so that the subject can appropriately be separated from areas of provincial competence. 117 I have gone on at this length to demonstrate the simple proposition that the validity of a legislative provision (including one relating to environmental protection) must be tested against the specific characteristics of the head of power under which it is proposed to justify it. For each constitutional head of power has its own particular characteristics and raises concerns peculiar to itself in assessing it in the balance of Canadian federalism. This may seem obvious, perhaps even trite, but it is all too easy (see Fowler v. The Queen, [1980] 2 S.C.R. 213) to overlook the characteristics of a particular power and overshoot the mark or, again, in assessing the applicability of one head of power to give effect to concerns appropriate to another head of power when this is neither appropriate nor consistent with the law laid down by this Court respecting the ambit and contours of that other power. 238

In the present case, it seems to me, this was the case of certain propositions placed before us regarding the breadth and application of the criminal law power. There was a marked attempt to raise concerns appropriate to the national concern doctrine under the peace, order and good government clause to the criminal law power in a manner that, in my view, is wholly inconsistent with the nature and ambit of that power as set down by this Court from a very early period and continually reiterated since, notably in specific pronouncements in the most recent cases on the subject. The Criminal Law Power 118 Section 91(27) of the Constitution Act, 1867 confers the exclusive power to legislate in relation to criminal law on Parliament. The nature and ambit of this power has recently been the subject of a detailed analytical and historical examination in RJR-MacDonald, supra, where it was again described (p. 240), as it has for many years, as being "plenary in nature" (emphasis added). I shall not attempt to repeat the analysis so recently set forth at length by this Court, or attempt to refer extensively to all of the many authorities there cited, but will confine myself to underlining the findings in that case that are most salient to the issues raised here. I add that Professor Leclair in an excellent article, "Aperçu des virtualités de la compétence fédérale en droit criminel dans le contexte de la protection de l'environnement" (1996), 27 R.G.D. 137, has very recently analysed all the relevant cases and has come to the same conclusion about the general scope of the criminal law power and its application to the environment, and in particular the Act here in question. 119 What appears from the analysis in RJR-MacDonald is that as early as 1903, the Privy Council, in Attorney-General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524, at pp. 528-29, had made it clear that the power conferred on Parliament by s. 91(27) is "the criminal law in its widest sense" (emphasis added). Consistently with this approach, the Privy Council in Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310 (hereafter PATA), at p. 324, defined the criminal law power as including any prohibited act with penal consequences. As it put it, at p. 324: "The criminal quality of an act cannot be discerned . . . by reference to any standard but one: Is the act prohibited with penal consequences?" This approach has been consistently followed ever since and, as RJR-MacDonald relates, it has been applied by the courts in a wide variety of settings. Accordingly, it is entirely within the discretion of Parliament to determine what evil it wishes by penal prohibition to suppress and what threatened interest it thereby wishes to safeguard, to adopt the terminology of Rand J. in the Margarine Reference, supra, at p. 49, cited infra. 120 Contrary to the respondent's submission, under s. 91(27) of the Constitution Act, 1867, it is also within the discretion of Parliament to determine the extent of blameworthiness that it wishes to attach to a criminal prohibition. So it may determine the nature of the mental element pertaining to different crimes, such as a defence of due diligence like that which appears in s. 125(1) of the Act in issue. This flows from the fact that Parliament has been accorded plenary power to make criminal law in the widest sense. This power is, of course, subject to the "fundamental justice" requirements of s. 7 of the Canadian Charter of Rights and Freedoms, which may dictate a higher level of mens rea for 239

serious or "true" crimes; cf. R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, and R. v. Rube, [1992] 3 S.C.R. 159, but that is not an issue here. 121 The Charter apart, only one qualification has been attached to Parliament's plenary power over criminal law. The power cannot be employed colourably. Like other legislative powers, it cannot, as Estey J. put it in Scowby v. Glendinning, [1986] 2 S.C.R. 226, at p. 237, "permit Parliament, simply by legislating in the proper form, to colourably invade areas of exclusively provincial legislative competence". To determine whether such an attempt is being made, it is, of course, appropriate to enquire into Parliament's purpose in enacting the legislation. As Estey J. noted in Scowby, at p. 237, since the Margarine Reference, it has been "accepted that some legitimate public purpose must underlie the prohibition". Estey J. then cited Rand J.'s words in the Margarine Reference (at p. 49) as follows: A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened. I simply add that the analysis in Scowby and the Margarine Reference was most recently applied by this Court in RJR-MacDonald, supra, at pp. 240-41. 122 In the Margarine Reference, supra, at p. 50, Rand J. helpfully set forth the more usual purposes of a criminal prohibition in the following passage: Is the prohibition . . . enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law. . . . [Emphasis added.] See also Morgentaler, supra, at p. 489; RJR-MacDonald, at p. 241. As the final clause in the passage just cited indicates, the listed purposes by no means exhaust the purposes that may legitimately support valid criminal legislation. Not only is this clear from this passage, but subsequent to the Margarine Reference, it is obvious from Rand J.'s remarks in Lord's Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497, at pp. 508-9, that he was in no way departing from Lord Atkin's statement in the PATA case, supra (he cited the relevant passage with approval). His concern in the Margarine Reference, as he indicates in the Lord's Day case (at p. 509), was that "in a federal system distinctions must be made arising from the true object, purpose, nature or character of each particular enactment". In short, in a case like the present, all one is concerned with is colourability. Otherwise, one would, in effect, be reviving the discarded notion that there is a "domain" of criminal law, something Rand J., like Lord Atkin before him, was not prepared to do. All of this is, of course, consistent with the view, most recently reiterated in RJR-MacDonald, at pp. 259-61, that criminal law is not frozen in time. 240

123 During the argument in the present case, however, one sensed, at times, a tendency, even by the appellant and the supporting interveners, to seek justification solely for the purpose of the protection of health specifically identified by Rand J. Now I have no doubt that that purpose obviously will support a considerable measure of environmental legislation, as perhaps also the ground of security. But I entertain no doubt that the protection of a clean environment is a public purpose within Rand J.'s formulation in the Margarine Reference, cited supra, sufficient to support a criminal prohibition. It is surely an "interest threatened" which Parliament can legitimately "safeguard", or to put it another way, pollution is an "evil" that Parliament can legitimately seek to suppress. Indeed, as I indicated at the outset of these reasons, it is a public purpose of superordinate importance; it constitutes one of the major challenges of our time. It would be surprising indeed if Parliament could not exercise its plenary power over criminal law to protect this interest and to suppress the evils associated with it by appropriate penal prohibitions. 124 This approach is entirely consistent with the recent pronouncement of this Court in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, where Gonthier J., speaking for the majority, had this to say, at para. 55: It is clear that over the past two decades, citizens have become acutely aware of the importance of environmental protection, and of the fact that penal consequences may flow from conduct which harms the environment.... Everyone is aware that individually and collectively, we are responsible for preserving the natural environment. I would agree with the Law Reform Commission of Canada, Crimes Against the Environment, supra, which concluded at p. 8 that: . . . a fundamental and widely shared value is indeed seriously contravened by some environmental pollution, a value which we will refer to as the right to a safe environment. To some extent, this right and value appears to be new and emerging, but in part because it is an extension of existing and very traditional rights and values already protected by criminal law, its presence and shape even now are largely discernible. Among the new strands of this fundamental value are, it may be argued, those such as quality of life, and stewardship of the natural environment. At the same time, traditional values as well have simply expanded and evolved to include the environment now as an area and interest of direct and primary concern. Among these values fundamental to the purposes and protections of criminal law are the sanctity of life, the inviolability and integrity of persons, and the protection of human life and health. It is increasingly understood that certain forms and degrees of environmental pollution can directly or indirectly, sooner or later, seriously harm or endanger human life and human health. Not only has environmental protection emerged as a fundamental value in Canadian society, but this has also been recognized in legislative provisions such as s. 13(1)(a) EPA. [Italics in original; underlining added.]

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125 It is worthy of note that following Working Paper 44 (1985), from which Gonthier J. cites, the Law Reform Commission of Canada in a subsequent report to Parliament (Recodifying Criminal Law, Report 31 (1987)), noted its view of the desirability of using the criminal law to underline the value of respect for the environment itself. It stated, at p. 93: . . . in Working Paper 44 we proposed a new and distinct crime against the environment on the ground that certain behaviour so threatens fundamental values as to warrant criminal sanctions. That crime was to consist of conduct damaging the environment and thereby seriously harming or endangering human life or health. Since then, however, we revised our opinion. First, we concluded that since environmental damage harming or endangering life and safety is covered by crimes of negligence against the person and by the newly proposed crime of endangering (clause 10(1)), there was no need for an environmental crime like that proposed. Second, our consultations on Working Paper 44 together with a series of environmental disasters since its publication convinced the majority of the Commissioners of the need to use criminal law to underline the value of respect for the environment itself and stigmatize behaviour causing disastrous damage with long-term loss of natural resources. [Emphasis added.] 126 This is, of course, in line with the thinking of various international organisms. The World Commission on Environment and Development (the Brundtland Commission) in its report Our Common Future (1987) (see at pp. 219-20, and pp. 224-25) long ago recommended the adoption of appropriate legislation to protect the environment against toxic and chemical substances, including the creation of national standards that could be supplemented by local legislation. At p. 211, it stated: It is becoming increasingly clear that the sources and causes of pollution are far more diffuse, complex, and interrelated -- and the effects of pollution more widespread, cumulative, and chronic -- than hitherto believed. Pollution problems that were once local are now regional or even global in scale. Contamination of soils, ground-water, and people by agrochemicals is widening and chemical pollution has spread to every corner of the planet. The incidence of major accidents involving toxic chemicals has grown. Discoveries of hazardous waste disposal sites -- at Love Canal in the United States, for example, and at Lekkerkek in the Netherlands, Vac in Hungary, and Georgswerder in the Federal Republic of Germany -- have drawn attention to another serious problem. In the light of this and the growth trends projected through the next century, it is evident that measures to reduce, control, and prevent industrial pollution will need to be greatly strengthened. If they are not, pollution damage to human health could become intolerable in certain cities and threats to property and ecosystems will continue to grow. Later, at pp. 219-20, it added:

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In dealing with industrial pollution and resource degradation, it is essential that industry, government, and the public have clear benchmarks. Where the workforce and financial resources permit, national governments should establish clear environmental goals and enforce environmental laws, regulations, incentives, and standards on industrial enterprises. In formulating such policies, they should give priority to public health problems associated with industrial pollution and hazardous wastes. And they must improve their environmental statistics and data base relating to industrial activities. The regulations and standards should govern such matters as air and water pollution, waste management, occupational health and safety of workers, energy and resource efficiency of products or processes, and the manufacture, marketing, use, transport, and disposal of toxic substances. This should normally be done at the national level, with local governments being empowered to exceed, but not to lower, national norms. [Emphasis added.] See also United Nations Environment Programme, Global Environmental Issues (1982), at pp. 55-60. 127 What the foregoing underlines is what I referred to at the outset, that the protection of the environment is a major challenge of our time. It is an international problem, one that requires action by governments at all levels. And, as is stated in the preamble to the Act under review, "Canada must be able to fulfil its international obligations in respect of the environment". I am confident that Canada can fulfil its international obligations, in so far as the toxic substances sought to be prohibited from entering into the environment under the Act are concerned, by use of the criminal law power. The purpose of the criminal law is to underline and protect our fundamental values. While many environmental issues could be criminally sanctioned in terms of protection of human life or health, I cannot accept that the criminal law is limited to that because "certain forms and degrees of environmental pollution can directly or indirectly, sooner or later, seriously harm or endanger human life and human health", as the paper approvingly cited by Gonthier J. in Ontario v. Canadian Pacific, supra, observes. But the stage at which this may be discovered is not easy to discern, and I agree with that paper that the stewardship of the environment is a fundamental value of our society and that Parliament may use its criminal law power to underline that value. The criminal law must be able to keep pace with and protect our emerging values. 128 In saying that Parliament may use its criminal law power in the interest of protecting the environment or preventing pollution, there again appears to have been confusion during the argument between the approach to the national concern doctrine and the criminal law power. The national concern doctrine operates by assigning full power to regulate an area to Parliament. Criminal law does not work that way. Rather it seeks by discrete prohibitions to prevent evils falling within a broad purpose, such as, for example, the protection of health. In the criminal law area, reference to such broad policy objectives is simply a means of ensuring that the prohibition is legitimately aimed at some public evil Parliament wishes to suppress and so is not a colourable attempt to deal with a matter falling exclusively within an area of provincial legislative jurisdiction. 243

129 The legitimate use of the criminal law I have just described in no way constitutes an encroachment on provincial legislative power, though it may affect matters falling within the latter's ambit. .... 130 I conclude that Parliament may validly enact prohibitions under its criminal law power against specific acts for the purpose of preventing pollution or, to put it in other terms, causing the entry into the environment of certain toxic substances. I quite understand that a particular prohibition could be so broad or all-encompassing as to be found to be, in pith and substance, really aimed at regulating an area falling within the provincial domain and not exclusively at protecting the environment. A sweeping prohibition like this (and this would be equally true of one aimed generally at the protection of health) would, in any case, probably be unworkable. But the attack here ultimately is that the impugned provisions grant such a broad discretion to the Governor in Council as to permit orders that go beyond federal power. I can imagine very nice issues being raised concerning this matter under certain types of legislation, though in such a case one would tend to interpret the legislation narrowly if only to keep it within constitutional bounds. But one need not go so far here. For, it seems to me, as we shall see, when one carefully peruses the legislation, it becomes clear enough that Parliament has stayed well within its power. 131 Though I shall deal with this issue in more detail once I come to consider the legislation, it is well at this point to recall that the use of the federal criminal law power in no way precludes the provinces from exercising their extensive powers under s. 92 to regulate and control the pollution of the environment either independently or to supplement federal action. The situation is really no different from the situation regarding the protection of health where Parliament has for long exercised extensive control over such matters as food and drugs by prohibitions grounded in the criminal law power. This has not prevented the provinces from extensively regulating and prohibiting many activities relating to health. The two levels of government frequently work together to meet common concerns. The cooperative measures relating to the use of tobacco are fully related in RJR-MacDonald, supra. Nor, though it arises under a different technical basis, is the situation, in substance, different as regards federal prohibitions against polluting water for the purposes of protecting the fisheries. Here again there is a wide measure of cooperation between the federal and provincial authorities to effect common or complementary ends. It is also the case in many other areas. The fear that the legislation impugned here would distort the federal-provincial balance seems to me to be overstated. 132 One last matter requires comment. The specific provision impugned in this case, the Interim Order, would seem to me to be justified as a criminal prohibition for the protection of human life and health alone (a purpose upheld most recently in RJR-MacDonald). That would also at first sight appear to be true of many of the prohibited uses of the substances in the List of Toxic Substances in Schedule I. So if the protection of the environment does not amount to a valid public purpose to justify criminal sanctions, it would be simply a question of severing those portions of s. 11 of the Act that deal solely with the environment to ensure the validity of the Interim Order and the rest of the enabling

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provisions. After all, the protection of the environment, as we earlier saw, is closely integrated, directly or indirectly, with the protection of health. But for my part, I find this exercise wholly unnecessary. The protection of the environment, through prohibitions against toxic substances, seems to me to constitute a wholly legitimate public objective in the exercise of the criminal law power. Humanity's interest in the environment surely extends beyond its own life and health. The Provisions Respecting Toxic Substances 133 The respondent, the mis en cause and their supporting interveners primarily attack ss. 34 and 35 of the Act as constituting an infringement on provincial regulatory powers conferred by the Constitution. This they do by submitting that the power to regulate a substance is so broad as to encroach upon provincial legislative jurisdiction. That is because of what they call the broad "definition" given to toxic substances under s. 11, and particularly para. (a), thereof which, it will be remembered, provides that: 11. For the purposes of this Part, a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions (a) having or that may have an immediate or long-term harmful effect on the environment;

This, along with the expansive definitions of "substance" and "environment" in s. 3(1), makes it possible, they say, in effect to regulate any substance that can in any way prove harmful to the environment. 134 I cannot agree with this submission. As I see it, the argument focusses too narrowly on a specific provision of the Act and for that matter only on certain aspects of it, and then applies that provision in a manner that I do not think is warranted by a consideration of the provisions of the Act as a whole and in light of its background and purpose. I shall deal with the latter first. Before doing so, however, I shall comment briefly on the concern expressed about the breadth of the phraseology of the Act. As Gonthier J. observed in Ontario v. Canadian Pacific, supra, this broad wording is unavoidable in environmental protection legislation because of the breadth and complexity of the subject and has to be kept in mind in interpreting the relevant legislation. At para. 43, he stated: What is clear from this brief review of Canadian pollution prohibitions is that our legislators have preferred to take a broad and general approach, and have avoided an exhaustive codification of every circumstance in which pollution is prohibited. Such an approach is hardly surprising in the field of environmental protection, given that the nature of the environment (its complexity, and the wide range of activities which might cause harm to it) is not conducive to precise codification. Environmental protection legislation has, as a result, been framed in a manner capable of responding to a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation. 245

In light of this, he went on to hold that environmental protection legislation should not be approached with the same rigour as statutes dealing with less complex issues in applying the doctrine of vagueness developed under s. 7 of the Charter. The effect of requiring greater precision would be to frustrate the legislature in its attempt to protect the public against the dangers flowing from pollution. He thus summarized his view, at para. 58: In the environmental context, each one of us is vulnerable to the health and property damage caused by pollution. Where the legislature provides protection through regulatory statutes such as the EPA, it is appropriate for courts to take a more deferential approach to the Charter review of the offences contained in such statutes. On this basis, Gonthier J. then turned to an examination of terms similar to those in the Act under review. He was there dealing with a provincial regulatory statute, but the same underlying need to protect the vulnerable and the public generally is inherent in criminal offences of the type in question here. This was recognized by Cory J. in Wholesale Travel Group Inc., supra. That case concerned offences under the Competition Act (formerly the Combines Investigation Act), long held to be constitutionally supportable under Parliament's criminal law power. Cory J. carefully distinguished between the type of offences there in question, which he described as regulatory offences, and "true crimes" such as murder. In a passage, at p. 233, relied upon by Gonthier J. (at para. 57), he had this to say: The realities and complexities of a modern industrial society coupled with the very real need to protect all of society and particularly its vulnerable members, emphasize the critical importance of regulatory offences in Canada today. Our country simply could not function without extensive regulatory legislation. The protection provided by such measures constitutes a second justification for the differential treatment, for Charter purposes, of regulatory and criminal offences. 135 I turn then to the background and purpose of the provisions under review. .... [....] 146 In summary, as I see it, the broad purpose and effect of Part II is to provide a procedure for assessing whether out of the many substances that may conceivably fall within the ambit of s. 11, some should be added to the List of Toxic Substances in Schedule I and, when an order to this effect is made, whether to prohibit the use of the substance so added in the manner provided in the regulations made under s. 34(1) subject to a penalty. These listed substances, toxic in the ordinary sense, are those whose use in a manner contrary to the regulations the Act ultimately prohibits. This is a limited prohibition applicable to a restricted number of substances. The prohibition is enforced by a penal sanction and is undergirded by a valid criminal objective, and so is valid criminal legislation.

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147 This, in my mind, is consistent with the terms of the statute, its purpose, and indeed common sense. It is precisely what one would expect of an environmental statute -- a procedure to weed out from the vast number of substances potentially harmful to the environment or human life those only that pose significant risks of that type of harm. Specific targeting of toxic substances based on individual assessment avoids resort to unnecessarily broad prohibitions and their impact on the exercise of provincial powers. Having regard to the particular nature and requirements of effective environmental protection legislation, I do not share my colleagues' concern that the prohibition originates in a regulation, the breach of which gives rise to criminal sanction. The careful targeting of toxic substances is borne out by practice. Counsel for the interveners, Pollution Probe et al., informed us that of the over 21,000 registered substances in commercial use in Canada (see Domestic Substances List, SI/91-148, Canada Gazette, Part I Supp.; Domestic Substances List, SOR/94-311, am. SOR/95-517), only 44 have been placed on the Priority Substances List and scientifically assessed under the Act (Priority Substances List, Canada Gazette, Part I (Feb. 11, 1989), p. 543). Of these, only 25 were found to be toxic within the meaning of s. 11 (It's About Our Health!: Towards Pollution Prevention, Report of the House of Commons Standing Committee on Environment and Sustainable Development, at pp. 63-64), and of these only a few have been the subject of a regulation under s. 34; see Pulp and Paper Mill Effluent Chlorinated Dioxins and Furans Regulations, SOR/92-267; Pulp and Paper Mill Defoamer and Wood Chip Regulations, SOR/92-268. 148 I should perhaps note here that it is wholly appropriate to have recourse to extrinsic material of the kind just referred to as well as of the type already referred to in considering the constitutional validity of legislation, especially when one is dealing with colourability, as is the case here. I refer to Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, where McIntyre J., referring to earlier authorities, had this to say, at p. 318: I agree with the Court of Appeal in the present case that extrinsic evidence is admissible to show the background against which the legislation was enacted. I also agree that such evidence is not receivable as an aid to construction of the statute. However, I am also of the view that in constitutional cases, particularly where there are allegations of colourability, extrinsic evidence may be considered to ascertain not only the operation and effect of the impugned legislation but its true object and purpose as well. This was also the view of Dickson J. in the Reference re Residential Tenancies Act, 1979, supra, at p. 721. . . . [Emphasis in third sentence added.] 149 I turn now to a more detailed examination of the provisions of the Act impugned in the present case, i.e. ss. 34 and 35. .... [....] 156 In sum, then, I am of the view that Part II of the Act, properly construed, simply provides a means to assess substances with a view to determining whether the substances are sufficiently toxic to be added to Schedule I of the Act (which contains a list of dangerous substances carried over from pre-

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existing legislation), and provides by regulations under s. 34 the terms and conditions under which they can be used, with provisions under s. 35 for by-passing the ordinary provisions for testing and regulation under Part II in cases where immediate action is required. I have reached this position independently of the legal presumption that a legislature intends to confine itself to matters within its competence; see Reference re Farm Products Marketing Act, [1957] S.C.R. 198, at p. 255; Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662, at p. 688. However, it follows that the position I have taken would by virtue of the presumption displace a possible reading of the Act that would render it unconstitutional. 157 Since I have found the empowering provisions, ss. 34 and 35, to be intra vires, the only attack that could be brought against any action taken under them would be that such action went beyond the authority granted by those provisions; in the present case, for example, such an attack might consist in the allegation that PCBs did not pose "a significant danger to the environment or to human life or health" justifying the making of the Interim Order. This would seem to me to be a tall order. The fact that PCBs are highly toxic substances should require no demonstration. This has become well known to the general public and is supported by an impressive array of scientific studies at both the national and international levels. I list here merely a sample of those cited to us: World Health Organization, U.N. Environment Programme and International Labour Organization (joint report), Polychlorinated Biphenyls (PCBs) and Polychlorinated Terphenyls (PCTs) Health and Safety Guide (1992); S. Dobson and G. J. van Esch, Polychlorinated Biphenyls and Terphenyls (2nd ed. 1993), Environmental Health Criteria 140, World Health Organization; R. J. Norstrom (Environment Canada) and D. C. G. Muir (Department of Fisheries and Oceans), "Chlorinated Hydrocarbon Contaminants in Arctic Marine Mammals", The Science of the Total Environment 154 (1994) 107-28; U.N. Environment Programme, Global Environmental Issues, supra; Environment Canada, Department of Fisheries and Oceans, Health and Welfare Canada, Toxic Chemicals in the Great Lakes and Associated Effects (1991); J. L. and S. W. Jacobson, "A 4-Year Followup Study of Children Born to Consumers of Lake Michigan Fish", Journal of Great Lakes Research, 19(4) (1993): 776-83; M. Gilbertson et al., "Great Lakes Embryo Mortality, Edema, and Deformities Syndrome (GLEMEDS) in Colonial Fish-eating Birds: Similarity to Chick-Edema Disease", Journal of Toxicology and Environmental Health, 33 (1991): 455-520; Canadian Council of Resource and Environment Ministers, The PCB Story (1986); Environment Canada and Health and Welfare Canada, Background to the Regulation of Polychlorinated Biphenyls (PCB) in Canada: A report of the Task Force on PCB, April 1 1976 to the Environmental Contaminants Committee of Environment Canada and Health and Welfare Canada; Health and Welfare Canada, A Review of the Toxicology and Human Health Aspects of PCBs (1978-1982) (1985); OECD, Protection of the Environment by Control of Polychlorinated Biphenyls (1973). 158 From what appears in these studies, one can conclude that PCBs are not only highly toxic but long lasting and very slow to break down in water, air or soil. They do dissolve readily in fat tissues and other organic compounds, however, with the result that they move up the food chain through birds and other animals and eventually to humans. They pose significant risks of serious harm to both 248

animals and humans. As well they are extremely mobile. They evaporate from soil and water and are transported great distances through the atmosphere. High levels of PCBs have been found in a variety of arctic animals living thousands of kilometres from any major source of PCBs. The extent of the dangers they pose is reflected in the fact that they were the first substance sought to be controlled in Canada under the Environmental Contaminants Act, the predecessor of the present legislation. They were also the first substance regulated in the United States under the Toxic Substances Control Act, 15 U.S.C. sec. 2605(c). And because of the trans-boundary nature of the threat, they were the first substances targeted for joint action by Canada, the United States and Mexico through the Commission for Environmental Cooperation established under the North American Free Trade Agreement; see C.E.C. Council of Ministers, Resolution # 95-5 "Sound Management of Chemicals", Oct. 1995; C.E.C. Secretariat Bulletin, vol. 2, No. 3, Winter/Spring 1996. 159 I should say that the respondent and mis en cause do not contest the toxicity of PCBs but simply argue that their control should not fall exclusively within federal competence. They also note that there is one study (G. J. Farquhar and J. Sykes, PCB Behavior in Soils (1978), at pp. 7, 8, 22, 23, 26, 33 and 34) that indicates that PCBs are absorbed, remain stable and are not mobile. I have already discussed the issue of concurrency. So far as mobility is concerned, whatever weight may be attached to the report in relation to the national concern issue, it has no relevance in considering federal jurisdiction under the criminal law power. 160 I conclude, therefore, that the Interim Order is also valid under s. 91(27) of the Constitution Act, 1867. Disposition [Appeal allowed.]

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Canada (Attorney General) v. Montreal (City), 1978

[1978] 2 S.C.R. 770 Supreme Court of Canada Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ. ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC The judgment of Laskin C.J. and of Spence and Dickson JJ. was delivered by THE CHIEF JUSTICE (dissenting):-- The terms of the impugned By-law and of the Ordinance, passed pursuant to s. 5 thereof, are set out in the reasons of my brother Beetz which I have had the advantage of reading, and I shall not repeat them. It is obvious from the recitals as well as from the terms of the key s. 5 that the City of Montreal has enacted a mini-Criminal Code, dealing with apprehended breach of the peace, apprehended violence and the maintenance of public order, and we are urged to sustain this incursion into the field of criminal law--a matter exclusively for the Parliament of Canada--because it is a matter of a local or private nature in the Province. The only local or private aspect is, in my opinion, the territorial ambit of the By-law and of the Ordinance, and this has never been a test of constitutional validity. My brother Beetz has referred to the challenged provisions as regulatory of the public domain, the reference being to public streets and parks. It is not, however, directed to that end as the recitals and central terms clearly indicate. What it does, plainly and without reference to any regulatory consideration, is to make it a punishable offence-a crime--to breach s. 5 of the By-law and the Ordinance. Sections 1 and 3 of the By-law do have a relationship to traffic regulation and may be justified in themselves on that basis as provisions which may competently be authorized by provincial legislation. They are, however, integrated in other provisions which are in no sense directed to traffic considerations or to any regulatory use of public parks and, indeed, as my brother Beetz has noted, the focus is on s. 5 of the By-law and on the Ordinance passed in implementation thereof. That provision is so explicitly directed to breach of the peace and to the maintenance of public order as to fall squarely within exclusive federal authority in relation to the criminal law. The very title of the By-law, as one "relating to exceptional measures to safeguard the free exercise of civil liberties, to regulate the use of the public domain and to prevent riots and other violations of order, peace and public safety" shows its character. The references to safeguarding the free exercise of civil liberties and to regulation of the use of the public domain are hollow references, not in any way fulfilled by the substantive terms of the By-law as are the references to riots, breach of the peace and public order. Moreover, the enactment of the By-law as an exceptional measure is itself an indicator of how far removed it is from any concern, except a consequential one, with regulation of the use of streets and public parks. The enactment of the By-law smacks of an assertion of municipal authority to 250

legislate for the "peace, order and good government" of the City of Montreal, an authority which I do not find in the catalogue of provincial powers under the British North America Act. The central s. 5 of the By-law and the Ordinance are a long way from Hodge v. The Queen [(1883),9 A.C. 117]. That case was concerned with provincial liquor licensing legislation and hence had a constitutional foundation in the local regulation of a trade or business in the Province. The legislation was, therefore, sustainable either under s. 92(13) or under s. 92(16) of the British North America Act, although it will be recalled that in Attorney General of Manitoba v. Manitoba Licence Holders' Association [[1902] A.C. 73], the Privy Council preferred to assign provincial regulatory liquor legislation to s. 92(16). There is no similar foundation for the By-law and especially for s. 5 thereof, which is enacted as a strict prohibitory provision unredeemed by any regulatory aspect. No doubt a prohibition, as a matter of its impact, is regulatory but, for constitutional purposes, provincial prohibitions to be valid have to be associated with a valid scheme of regulation as enforcements or reinforcements thereof, and are not sustainable as peremptory directions against forbidden conduct or behaviour. I am far from supporting the full implications of City of Toronto v. Virgo [[1896] A.C. 88] where the Privy Council, at p. 93, said this in reference to a municipal by-law:

... There is a marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed. Yet the distinction drawn in the case is apt here where there is no substratum of regulation upon which a sanction has been mounted. Two other points are made by the proponents of the By-law. One is that it was called forth by exceptional conditions in Montreal, an assertion which in itself makes the By-law suspect. There is no accretion to provincial legislative authority to enable it to deal with apprehended riots or public disorder merely because the provincial government or delegated municipal authorities are of the opinion that preventive measures must be taken. They may be taken under ordinary police powers and in accordance with the federal Criminal Code, to which I will refer later in these reasons. The second point is that there is no constitutional bar to provincial (or validly authorized municipal) legislation which complements the federal Criminal Code. This is a proposition which flies in the face of the scheme of distribution of legislative power; it is destructive of the principle of exclusiveness as expressed in Union Colliery Co. v. Bryden [[1899] A.C. 580], at p. 588; and it is not supported by any authorities. Cases such as O'Grady v. Sparling [[1960] S.C.R. 804] and Mann v. The Queen [ [1966] S.C.R. 238], to take two of those relied upon by the proponents of the By-law, turn on a conclusion that the enactments challenged therein were independently valid as being in relation to a matter within provincial competence. Judson J., speaking for the majority in O'Grady v. Sparling, at p. 810, said that "The power of a provincial legislature to enact legislation for the regulation of highway traffic is 251

undoubted ... [and] the legislation under attack here is part and parcel of this regulation". It cannot be said of the challenged s. 5 of the By-law in this case that it has any such anchorage. Whether the apt term be "complementary" or "supplementary", it has hitherto been a mark of our constitutional jurisprudence that a Province cannot legislate to reinforce the federal criminal law: Johnson v. Attorney General of Alberta [[1954] S.C.R. 127]. The fact that it might seek to foreclose a breach of the criminal law by preventive measures did not relieve against this provincial disability: see Attorney General for Ontario v. Koynok [ [1941] 1 D.L.R. 548]. There may, of course be differences as to the appropriateness of the application of this principle in particular cases but the principle itself has not, as I read the case law, been heretofore doubted. If any reported case in the Canadian Courts has an affinity to the one now before us it is District of Kent v. Storgoff [(1962), 38 D.L.R. (2d) 362]. It is very much in point, and on this I differ from my brother Beetz. That case also involved a municipal by-law which was likewise passed as an exceptional measure; and the same expediency that is invoked here to support the By-law and s. 5 thereof was invoked there. Whittaker J. of the British Columbia Supreme Court did not yield to the expediency reflected in the by-law, although he sympathized with the municipality in its problem; and he pointed out, quite properly, that preventive measures were open under provisions of the Criminal Code relating to unlawful assemblies, to prevention of use of force and to power to arrest without warrant. The by-law in the District of Kent case purported to prohibit members of a Doukhobor sect from entering the municipality which contained a prison where a large number of members were serving sentences. Fellow members, numbering about 1,000, were intending to march on the prison and had begun to do so from their homes about 400 miles away, and the by-law was passed as an emergency measure because of concern that the facilities of the municipality, with a population of 2,200, would be overtaxed so far at least as housing and sanitation were concerned, and there was also an apprehension of a breakdown of law and order. The by-law made it an offence punishable by a fine or imprisonment or both for a member of the sect to enter the municipality during the continuance of the emergency and they were liable, if they did so, to arrest without warrant. Two passages from the reasons of Whittaker J. invalidating the by-law are so apposite here that I quote them, as follows, at p. 367 of the D.L.R. report: It is true that in the preamble the by-law refers to anticipated problems of housing, education and health. Those are local problems, but the penalties imposed are not for the breach of any law relating to those subjects. The by-law is designed to prevent conditions arising which may lead to their breach. This is a laudable object, if it could be achieved by the exercise of powers within the jurisdiction of the municipality or the Province, but Kent has sought to meet the situation by the creation of a new crime. This is clearly beyond its powers. The by-law is also designed to prevent conditions arising which may lead to a breach of the peace or unlawful assembly. These are matters relating to the criminal law and as such are within the exclusive 252

legislative jurisdiction of the Parliament of Canada. Both are covered by the Criminal Code, 1953-54 (Can.), c. 51; breach of the peace by ss. 30 and 31, and unlawful assembly by s. 64. There is more to be said for the validity of the by-law in the District of Kent case than there is for the validity of the one in the present case. There are here no considerations of health or sanitation or education but a naked concern for the public peace and about anticipated violence. The by-law is directed to these considerations and they are matters of criminal law alone. Of course, there can be only sympathetic regard for the ability of the police to handle violent demonstrators. I should have thought, however, that an internal instruction or memorandum of procedures to this end would have sufficed in invocation of the extensive police powers of arrest without warrant given by ss. 449 and 450 of the Criminal Code and of the power to deal with and disperse unlawful assemblies, given by ss. 64 to 69 of the Criminal Code. There are express supporting provisions in ss. 32 and 33 as well as general support in ss. 27 and 30. Any doubt about the actual encroachment of the By-law into the field of criminal law may easily be resolved by comparing s. 5 of the By-law with ss. 27 and 68 of the Criminal Code, s. 6 of the By-law with s. 69(b)(c) of the Criminal Code, and s. 7 of the By-law with ss. 66 and 67 of the Criminal Code. There is a distasteful part of the challenged By-law and Ordinance which, surprisingly, appears to be relied on to support their validity. The prohibition of assemblies or gatherings is not limited to those from which disorder or violence is anticipated but extends to all assemblies, all gatherings for the prescribed thirty-day period. I am unable to appreciate how this gives credence to the By-law as a local measure. We are left in no doubt here as to the scope of operation of the By-law. In Saumur v. City of Quebec [ [1953] 2 S.C.R. 299], Kellock J. noted that the challenged by-law there was "not to be judged from the standpoint of matters to which it might be limited but upon the completely general terms in which it in fact is couched" (at p. 339). Here, persons who might seek to associate or gather for innocent purposes are to be barred, not because of any problem as to whether certain public areas should be open at certain times or on certain days or occasions--all of which go to their ordinary regulation--but because of a desire to forestall the violent or the likely violent. This is the invocation of a doctrine which should alarm free citizens even if it were invoked and applied under the authority of the Parliament of Canada, which has very wide power to enact criminal law. To find it invoked by a delegated authority like a municipality, which is limited at the outside to those powers that are open to a Province, appears to me to be an aggravation of its intrusion into the field of criminal law. Certainly, enforcement of the criminal law is often difficult and where large numbers of persons may be involved the difficulties are compounded. Yet it has always been central to our criminal law that the police are expected to enforce it against violators and not against innocents, and to exercise a reasonable and honest judgment as to those who are in each of these classifications. What can be more draconian than for a municipality to ignore the distinction and then to insist that it is not legislating in relation to crime or criminal law when its prime purpose is to forestall anticipated breaches of the peace and to deal with unlawful assemblies and riots!

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The By-law goes much beyond what was invalidated in Henry Birks & Sons Ltd. v. City of Montreal [[1955] S.C.R. 799] and in Switzman v. Elbling [[1957] S.C.R. 285]. Of course, those cases relate to other factual issues but they reflect the scope of the federal criminal law power even in situations where there is a connection--found there to be too tenuous to support the challenged provisions--with the regulation of commercial establishments and the use of private premises. I see nothing in Bédard v. Dawson [[1923] S.C.R. 681], to give any support to the By-law. It has been overtaken by later cases such as Johnson v. Attorney General of Alberta, supra, and Switzman v. Elbling, supra, and even if it still has any vitality, its rationale relates to the suppression of a nuisance, a matter pertaining to the enjoyment of private premises. The By-law here has nothing to do with private nuisances but only with conduct and anticipated conduct of persons in streets and public parks. I would allow the appeal, set aside the judgment below and restore the order at trial declaring the Bylaw and the Ordinance ultra vires. It is clear that if s. 5 goes, ss. 6 and 7 of the By-law must also fall, and so too must s. 4. This effectively denudes the By-law of any substance. I would give the appellant Claire Dupond her costs throughout against the City of Montreal, but there should be no costs to or against the Attorney General of Quebec or the Attorney General of Canada. The judgment of Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ. was delivered by BEETZ J.:-- Appellant Claire Dupond has attacked the constitutional validity of the City of Montreal Bylaw 3926 and of Ordinance no. 1 passed by the Executive Committee of the City pursuant to s. 5 of that By-law. She did so under s. 515 of the Charter of the City of Montreal (Q.S. 1959-60, c. 102) which provides that any ratepayer, by petition in his own name presented to the Superior Court, may demand the annulment of any by-law on the ground of illegality. The Attorney General for Quebec and the Attorney General for Canada were impleaded as third parties and participated in the proceedings throughout, the first to support the validity of the By-law and of the Ordinance and the second to oppose it. The trial judge having declared the By-law and the Ordinance unconstitutional, the City of Montreal and the Attorney General for Quebec both appealed to the Quebec Court of Appeal. In separate judgments on each appeal, the Court of Appeal set aside the judgment at trial and dismissed Claire Dupond's petition. These are the judgments separately appealed from by the Attorney General for Canada and Claire Dupond. The Attorney General for Ontario and the Attorney General for Alberta were granted leave to intervene but only the Attorney General for Alberta did in fact intervene; he supported the validity of the By-law and of the Ordinance. By-law 3926 reads as follows: By-law relating to exceptional measures to safeguard the free exercise of civil liberties, to regulate the use of the public domain and to prevent riots and other violations of order, peace and public safety.

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At the meeting of the Council of the City of Montreal held on November 12, 1969, Council ordained: WHEREAS it is imperative to provide for the protection of citizens in the exercise of their liberties, safeguard public peace and prevent violence against persons and property: WHEREAS violence, armed robberies and other criminal acts often accompany certain demonstrations; WHEREAS it is in order to enact exceptional emergency measures for the protection of citizens and the maintenance of peace and public order; WHEREAS it is in order to regulate the use of the public domain and safeguard the right of citizens to the peaceful enjoyment of the public domain of the City; 1.--Anyone is entitled to the use and enjoyment of the streets, public places and public domain of the City of Montreal untroubled and in peace and public order. 2.--Assemblies, parades or other gatherings that endanger tranquillity, safety, peace or public order are prohibited in public places and thoroughfares, parks or other areas of the City's public domain. 3.--No person participating in or present at an assembly, parade or other gathering on the public domain of the City shall molest or jostle anyone, or act in any way so as to hamper the movement, progress or presence of other citizens also using the public domain of the City on that occasion. 4.--Any assembly, parade or gathering on the public domain which gives rise to a violation against any article of this by-law, or to any acts, behaviour or utterances which disturb the peace or public order shall ipso facto be an assembly, parade or gathering which endangers tranquillity, safety, peace or public order, under the terms of Article 2 of this by-law, and shall disperse forthwith. 5.--When there are reasonable grounds to believe that the holding of assemblies, parades or gatherings will cause tumult, endanger safety, peace or public order or give rise to such acts, on report of the Directors of the Police Department and of the Law Department of the City that an exceptional situation warrants preventive measures to safeguard peace or public order, the Executive Committee may, by ordinance, take measures to prevent or suppress such danger by prohibiting for the period that it shall determine, at all times or at the hours it shall set, on all or part of the public domain of the City, the holding of any or all assemblies, parades or gatherings.

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6.--All persons shall immediately obey the order of a peace officer to leave the scene of any assembly, parade or gathering held on violation of this by-law. 7.--Whoever participates in an assembly, parade or gathering held in violation of this by-law or otherwise contravenes, in any way, any provision of this by-law, shall be liable to either imprisonment or a fine, with or without costs, for the term or the amount that the Municipal Court of Montreal will determine, at its discretion, and failing the immediate payment of such fine, or such fine and costs, as the case may be, to imprisonment for a term to be determined by the said Municipal Court, at its discretion; the imprisonment for failure to pay the fine or costs shall cease at any time before expiry of the term determined by the Court, upon payment of the fine or of the fine and costs, as the case may be. Such imprisonment shall not exceed sixty (60) days nor such fine one hundred (100) dollars. The Ordinance passed by the Executive Committee of the City pursuant to s. 5 of the By-law reads as follows: Under by-law 3926 relating to exceptional measures to safeguard the free exercise of civil liberties, to regulate the use of the public domain and to prevent riots and other violations of order, peace and public safety. At the meeting of the Executive Committee of the City of Montreal held on November 12, 1969 (no. 38961) The Executive Committee ordained: ORDINANCE TO PROHIBIT THE HOLDING OF ANY ASSEMBLY, PARADE OR GATHERING ON THE PUBLIC DOMAIN OF THE CITY OF MONTREAL FOR A TIME-PERIOD OF 30 DAYS. CONSIDERING the reports from the Directors of the Police Department and of the Law Department of the City of Montreal attached hereto as an integral part of these presents; CONSIDERING there are reasonable grounds to believe that the holding of assemblies, parades or gatherings on the public domain of the City would endanger the safety, peace or public order might give rise to such danger; CONSIDERING the exceptional situation prevailing in the City of Montreal and the need to take preventive measures to safeguard peace and public order. The holding of any assembly, parade or gathering anywhere and at any time on the public domain of the City is prohibited for a time-period of thirty (30) days to end the thirteenth (13th) day of December 1969 at midnight, except for the parades already authorized by the Director of the Police Department under By-law 1319 dealing with 256

traffic, before the adoption of this ordinance, and provided such parades do not endanger tranquillity, peace and public order. Police Department Office of the Director Date: November 12, 1969 To: Mr. Lucien Saulnier Chairman of the Executive Committee City of Montreal

From: Mr. J.-P. Gilbert Director of the Police Department City of Montreal Subject: demonstrations and parades Since the beginning of 1969, 97 demonstrations have been held in Montreal, 21 of which have taken place from early October up to this date. Some of these demonstrations have drawn several thousand demonstrators which we have had to control. It should be noted that the demonstrations mentioned above do not include parades held for religious, ethnic, commercial or sports purposes, where we are called upon to maintain order. On four occasions, since October 1, 1969, we have had to call on duty more than eight hundred (800) policemen on the occasion of demonstrations. Demonstrations for all types of causes or purposes have increased to such an extent that, on an average yearly basis, we set at 20% the number of Montreal Police Department men/day needed to control such demonstrations. In determining the cost of these demonstrations in terms of salaries paid to policemen on duty on such occasions, we have set an estimate of approximately $3,000 per hour in over-time pay. In determining the cost at regular rates of the police forces assigned to the setting up of crowd-control systems and the carrying out of police operations at the time of the demonstrations, we have arrived at an estimated yearly cost of approximately $7,000,000 for the City.

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Attention should be drawn to the fact that, when a demonstration occurs, we must perforce reduce the normal amount of protection extended by us to other areas, so as to concentrate most of our forces at the site of the demonstration. This can only benefit crime throughout the metropolis. Moreover, in the past two months, demonstrations have increased both in frequency and in the number of participants involved. We note that such demonstrations are accompanied increasingly by violence, vandalism and looting. Considerable damage has been inflicted on a great number of commercial establishments in the course of such demonstrations. The experience of recent demonstrations has shown that many agitators, usually the same ones, infiltrate a large crowd in order to throw various missiles-Molotov cocktails, for instance--from within such crowds, or otherwise to disturb the peace or endanger persons or property, while it is extremely difficult to identify and restrain such agitators soon enough. The present climate of social unrest and the frequency of demonstrations, as characterized above, make it impossible to guarantee within reasonable limits that the holding of assemblies, parades or gatherings within the City of Montreal can take place at this time without the occurrence of violence against either persons or property or without an increase in the number of armed robberies and major crimes when police personnel is assigned to demonstration duty; We therefore have reasonable ground to believe that within the next 30 days, the holding of assemblies, parades or gatherings can only endanger public safety, peace and order and provide opportunities for the perpetration of serious criminal offences or of acts seriously disturbing public safety, peace and order; We therefore feel it our duty to recommend that preventive steps be taken to protect civil liberties and safeguard public peace and order and, consequently, we recommend that the Executive Committee, pursuant to the powers it holds under the by-law prohibiting demonstrations on the City's public domain, forbid for 30 days the holding of any and all assemblies, parades or gatherings, of any type whatsoever everywhere on the City's public domain, excepting those events already authorized by the Director of the Police Department of the City of Montreal.

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We recommend that our report be submitted to the Chief Attorney for the drafting of the required ordinance and of any report he must make pursuant to the provisions of the by-law referred to above. ---------Law Office Date: November 12, 1969 To: Chairman and Members of the Executive Committee City Hall and Mr. Maurice Farley Executive Secretary of the City City Hall From: Mr. Michel Coté Chief Attorney Law Office Subject: Recommendation for the adoption of an ordinance prohibiting any demonstrations for thirty days on the public domain By-law concerning demonstrations on the public domain. Gentlemen: Following the adoption of the by-law concerning demonstrations on the City's public domain, we have received and examined a report dated November 12, 1969, from the Director of the Police Department, Mr. Jean-Paul Gilbert, recommending that, pursuant to the above-mentioned by-law, an ordinance be adopted prohibiting for thirty (30) days all demonstrations on the public domain. In view of the many demonstrations which are expected to take place or have been publicly announced for the coming days, and in view of the facts set forth in the report of the Director of the Police Department, Mr. Jean-Paul Gilbert, we find that we must concur with his conclusion that a special situation exists in Montreal, that there is reasonable ground to believe that the holding of assemblies, parades and gatherings will endanger public safety, peace and order, cause tumult or give rise to such acts, and that it is therefore in order to take preventive steps to safeguard public peace and order. We therefore recommend jointly with the Director of the Police Department, Mr. Jean-Paul Gilbert, that the Executive Committee prohibit, by ordinance, the holding 259

of any and all assemblies, parades or gatherings, anywhere and all times on the public domain of the City of Montreal, for a thirty (30) day period to end on the thirteenth (13th) day of December 1969, at midnight, excepting those parades which had already been authorized in accordance with By-law 1319 concerning traffic by the Director of the Police Department, Mr. Jean-Paul Gilbert, prior to the adoption of this ordinance and providing that they take place in tranquillity, peace and public order. We recommend that the form and wording of the said ordinance be the same as those of the draft ordinance attached hereto. Hoping that you will find the whole in order, we remain. Sincerely yours, Chief Attorney, Michel Coté. The only evidence tendered at trial was the brief testimony of Claire Dupond that she is a ratepayer of the City of Montreal and a Canadian citizen. There is in the case no factual background except what is mentioned in the reports of the Directors of the Police Department and of the Law Department of the City of Montreal attached to Ordinance no. 1 and quoted above. The facts recited in those reports have not been disputed. They must be taken to be true. It was conceded at the hearing that Ordinance no. 1 was enacted on account of those facts. The submissions made against the constitutional validity of the By-law and of the Ordinance may be summarized as follows: 1. They are in relation to criminal law and ultra vires of the City of Montreal and of the provincial legislature; 2. They are in relation to and in conflict with the fundamental freedoms of speech, of assembly and association, of the press and of religion which are made part of the Constitution by the preamble of the British North America Act, 1867, or which come under federal jurisdiction and are protected by the Canadian Bill of Rights. In her factum, Claire Dupond made further submissions to the effect that, under the City Charter, leaving aside the constitutional question, the Ordinance was ultra vires of the Executive Committee and that the By-law was ultra vires of the City Council. These submissions were not made in oral argument. For this reason, when counsel for the City of Montreal stated that he proposed to answer them, he was informed by the Court that he did not have to meet these points unless they were raised, and they were not. Since they were not argued in this Court nor discussed by the courts below, I will refrain from commenting upon them and assume that the By-law and the Ordinance are intra vires

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from an administrative law point of view in order to limit my reasons to the two constitutional law submissions. The trial judge, Trépanier J., whose judgment is unreported, found some overlapping between s. 2, 3 and 5 of the By-law and several provisions of the Criminal Code. He came to the conclusion that s. 5 of the By-law creates a new offense intended to supplement the Criminal Code and was accordingly ultra vires as being in relation to criminal law. Since it was unlikely in his view that the City Council would have enacted the By-law without s. 5, he declared the By-law entirely void, together with the Ordinance. (A judge of the Social Welfare Court had reached a similar result on somewhat broader grounds with respect to the same By-law in La Ville de Montréal c. X [[1970] R.L. 276]; this last judgment was apparently appealed from, although we do not know the outcome, if any; it would appear also that some unreported decisions of the Montreal Municipal Court have held the By-law and the Ordinance to be intra vires). The Court of Appeal (Lajoie J.A. speaking for himself and for Owen, Brossard, Turgeon and Bélanger JJ.A.) unanimously held that the By-law and the Ordinance were intra vires: it characterized the By-law and the Ordinance as local police regulations the essential purpose of which was to secure to the inhabitants of the City the free and peaceful enjoyment of the municipal public domain; as to the Canadian Bill of Rights it was pointed out that it does not apply to provincial and municipal legislation: [1974] C.A. 402. In this Court, while the constitutionality of each section of the By-law was briefly debated, the attack was focused on s. 5 and on the Ordinance. Severability was discussed. In answer to questions, counsel for Claire Dupond stated that the latter, who has initiated the whole proceeding, was interested only in having the Ordinance and s. 5 of the By-law declared ultra vires; the other provisions of the By-law were of no concern to her. It is clear to me that such a statement amounts to a discontinuance of Claire Dupond's petition in so far as that petition attacked sections of the By-law other than s. 5. Counsel for the Attorney General for Canada, the other appellant, conceded that s. 5 is operationally severable. Furthermore, while I agree with the trial judge that the City Council was unlikely to have passed the impugned By-law without s. 5, in my view, the converse is not true: the very title of the By-law as well as the third paragraph of the preamble refer to the exceptional or emergency measures contemplated only by s. 5; the other paragraphs of the preamble are applicable to s. 5 as well as to other sections; finally, it is manifest that the By-law is operational without ss. 1, 2, 3 and 4. Given those circumstances, I should limit my reasons for judgment to the constitutional validity of s. 5 and of ancillary ss. 6 and 7: as I understand the situation, there is no longer any lis between Claire Dupond and the City of Montreal with respect to ss. 1, 2, 3 and 4 of the By-law. The impleading of the 261

Attorney General for Canada and of the Attorney General for Quebec and the subsequent intervention of the Attorney General for Alberta do not turn this case into a constitutional reference. II In Hodge v. The Queen [(1883), 9 A.C. 117], the Judicial Committee of the Privy Council upheld the constitutional validity of the Ontario Liquor License Act of 1877 and of regulations enacted pursuant to that Act. At page 131, the Judicial Committee referred to those regulations as regulations in the nature of police or municipal regulations of a merely local character ... and such as are calculated to preserve in the municipality, peace ... and repress ... disorderly and riotous conduct. I could not find a better description to characterize s. 5 of the By-law and the Ordinance. They are on their face regulations of a merely local character. The Ordinance was passed for reasons peculiar to the City of Montreal at the relevant time. Both s. 5 and the Ordinance relate to the use of the municipal public domain in exceptional circumstances when there are reasonable grounds to believe that the holding of assemblies, parades or gatherings in the streets, parks and other parts of the public domain will endanger safety, peace or public order. These are not punitive but essentially preventive measures, the purpose and effect of which is the prevention of conditions conducive to breaches of the peace and detrimental to the administration of justice. This preventive character is illustrated by the fact that the Ordinance prohibits the holding on the public domain of an assembly, parade or gathering, including those of the most innocent and innocuous kind. The temporary nature of the Ordinance and of any ordinance which could be passed pursuant to s. 5 is also indicative of the preventive aspect of this legislative scheme. In Reference re the Adoption Act [[1938] S.C.R. 398], Sir Lyman Duff wrote, at p. 403: ... while as subject matter of legislation, the criminal law is entrusted to the Dominion Parliament, responsibility for the administration of justice and, broadly speaking, for the policing of the country, the execution of the criminal law, the suppression of crime and disorder, has from the beginning of Confederation been recognized as the responsibility of the provinces and has been discharged at great cost to the people; so also, the provinces, sometimes acting directly, sometimes through the municipalities, have assumed responsibility for controlling social conditions having a tendency to encourage vice and crime. It is now well established that the suppression of conditions likely to favour the commission of crimes fails within provincial competence: Bédard v. Dawson [[1923] S.C.R. 681]; Di Iorio v. Warden of the Montreal Jail [[1978] 1 S.C.R. 15; 73 D.L.R. (3d) 491]. It would be an over-simplification to say that ordinances which may be passed under s. 5 are purely prohibitory: demonstrations can be restricted to certain areas of the municipal public domain, to

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certain times of the day or the night, to certain types of assemblies, parades or gatherings; that is why, in spite of the prohibitory form of the ordinances, s. 5 can be said to be, in substances, regulatory of the use of the public domain as the by-law held intra vires by McRuer C.J.H.C. in R. v. Campbell [[1962] O.R. 1134]. However, I would not hesitate to uphold the validity of ordinances contemplated by s. 5 even if they were strictly prohibitory: A provincial enactment does not become a matter of criminal law merely because it consists of a prohibition and makes it an offense for failure to observe the prohibition; ... (per Judson J. in O'Grady v. Sparling [[1960] S.C.R. 804], at p. 810). In my view, the impugned enactments relate to a matter of a merely local nature in the Province within the meaning of s. 92(16) of the Constitution. Bearing in mind that the other heads of power enumerated in s. 92 are illustrative of the general power of the Province to make laws in relation to all matters of a merely local or private nature in the Province, I am of the opinion that the impugned enactments also derive constitutional validity from heads (8), (13), (14) and (15) of s. 92. Re Race Track and Betting [(1921), 61 D.L.R. 504], a judgment of the Ontario Court of Appeal, and District of Kent v. Storgoff [(1962), 38 D.L.R. (2d) 362], a judgment of Whittaker J. of the British Columbia Supreme Court were cited to us as persuasive authorities to the effect that s. 5 of the By-law and the Ordinance are ultra vires. These cases dealt with different situations and I think it better not to discuss them in order to avoid going further than necessary for the decision of the case at hand. Johnson v. Attorney General of Alberta [[1954] S.C.R. 127], was also cited. It is entirely distinguishable: a province had added a sanction to an offense already dealt with in the Criminal Code. III When an enactment is in itself of a local or private nature, the onus of showing that it otherwise comes within one or more of the classes of subjects enumerated in s. 91 falls upon the party so asserting: L'Union St-Jacques de Montréal v. Bélisle [[1874], L.R.6 P.C. 31], at p. 36. Appellants have tried to discharge the onus by submitting that s. 5 of the By-law and the Ordinance relate to criminal law. One line of argument was that the impugned enactments are anti-riot measures dealing with a field already covered by ss. 64 to 70 of the Criminal Code and that their essential purpose is to supplement what was thought to be a lacuna in the Code. I do not agree that s. 5 and the Ordinance deal with the same subject matter as the Code, under the same aspect and for the same purpose. They differ in more than one way but the main difference is as follows: the Criminal Code forbids unlawful assemblies and riots and provides for the punishment of these offenses once they have been committed; it also compels a justice, mayor or sheriff to command, in Her Majesty's name, the dispersion of an unlawful assembly which has already begun to 263

disturb the peace tumultuously; s. 5 and the Ordinance on the other hand are aimed at preventing assemblies, parades and gatherings which have not yet taken place. There are in the Code no preventive measures similar to s. 5 of the By-law. Counsel for the Attorney General for Canada readily conceded this; his point was that Parliament could enact a measure such as s. 5 of the By-law, and moreover, that only Parliament could do so. It may be that Parliament could enact measures of a preventive nature under its ancillary powers. But we are not concerned in this case with the outer limits of federal jurisdiction over criminal law and I fail to see how the fact that Parliament has not exercised a possible incidental power should sterilize provincial legislative competence and prevent a province or a city from exercising their own powers. And, in the exercise of their own powers, the provinces may constitutionally complement federal legislation. The reports are replete with cases where provincial legislation complementary to federal legislation was upheld as long as it did not collide with the latter: Provincial Secretary of Prince Edward Island v. Egan [[1941] S.C.R. 396]; Validity of Section 92(4) of the Vehicles Act, 1957 (Sask.) [ [1958] S.C.R. 608]; Smith v. The Queen [[1960] S.C.R. 776]; O'Grady v. Sparling, (supra); Stephens v. The Queen [[1960] S.C.R. 823]; Lieberman v. The Queen [[1963] S.C.R. 643]; Fawcett v. Attorney General for Ontario [[1964] S.C.R. 625]; Mann v. The Queen [[1966] S.C.R. 238]. This part of appellants' first submission must fail. The second line of argument with respect to appellants' first submission is that s. 5 of the By-law and the Ordinance are ultra vires under the doctrine of Saumur v. City of Quebec [[1953] 2 S.C.R. 299]; Henry Birks and Sons Ltd. v. City of Montreal [[1955] S.C.R. 799] and Switzman v. Elbling [ [1957] S.C.R. 285. I cannot see anything in the Ordinance which interferes with freedom of religion, of the press or of speech, or which imposes religious observances, in such a way as to bring the matter within the criminal law power of Parliament. The Ordinance prohibits the holding of all assemblies, parades or gatherings for a time period of thirty days, irrespective of religion, ideology or political views. It does so for the reasons given in the reports of the Director of the Police Department and of the Chief Attorney of the City; the reasons have nothing to do with those for which provincial enactments were invalidated in the Saumur, Birks and Switzman cases. Furthermore, the discretionary power to pass an Ordinance under s. 5 of the By-law is not an uncontrollable discretion given to a municipal officer, as was the case in Saumur: it is vested in the Executive Committee of the City; it cannot be exercised except on report of the Directors of the Police Department and of the Law Department of the City; this report must give reasons why an ordinance should be passed; these reasons must be up to the standard contemplated in the preamble of the Bylaw and in s. 5, that is, an exceptional emergency situation must have arisen which warrants the enactment of preventive measures; finally, the prohibition must be limited in time to the period

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determined by the Executive Committee; it must be temporary for by their very nature exceptional emergency measures cannot be permanent. Should the discretionary power vested in the Executive Committee by s. 5 be exercised for unconstitutional purposes, or should it simply be exercised unreasonably, judicial review would be available. I should add that, under the City Charter, the Executive Committee is not an irresponsible body and that the media are in no way muzzled by the enactment of an ordinance. This part of the first submission must also fail. [....] Appeal dismissed, LASKIN C.J. and SPENCE and DICKSON JJ. dissenting.

Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), 1987

[1987] 2 S.C.R. 59 Supreme Court of Canada Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain JJ. ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK [....] The reasons of Estey and Lamer JJ. were delivered by 12 ESTEY J.:-- This appeal concerns the interplay between provincial regulations relating to the sale of alcoholic beverages in the province and the several provisions in the Criminal Code relating to conduct in a field said to be entertainment. 13 The Province of New Brunswick enacted a comprehensive statute setting forth a licensing system of outlets throughout the province where citizens can purchase alcoholic beverages. The operators of the Rio Hotel Ltd. obtained two licences under this statutory program: the first was for the establishment of the premises themselves as a liquor outlet, and the second was an entertainment licence relating to the provision of live entertainment. This entertainment licence included a number of conditions. It is these latter conditions with which this appeal is principally concerned. [....] 16 Under the Liquor Control Act, R.S.N.B. 1973, c. L-10, the Province of New Brunswick established a Liquor Licensing Board which has the duty to issue, refuse, cancel or suspend liquor licences. Under s. 265

63, the Board may grant a number of different licences to sell liquor, such as a "tavern licence", a "restaurant licence" or a "cabaret licence". In 1983, the Act was amended so as to provide for an additional licensing requirement in s. 63.01. This new section provides that no holder of a liquor licence shall make available "live entertainment within premises in respect of which his licence is issued unless he holds a licence issued under this section". Section 63.01(5) also provides that the Board may attach conditions to a licence issued under s. 63.01, and in doing so the Board may "regulate and restrict the nature and conduct of live entertainment and may prohibit specified kinds of live entertainment". 17 On 24 May, 1984, entertainment licence 5199-E was granted to the appellant, Rio Hotel Ltd., pursuant to s. 63.01 of the Liquor Control Act. The following conditions were attached to this licence: i. In granting Entertainment Licences the Board will NOT approve nude entertainment or other types of live entertainment that in any form or manner exposes to public view the genital areas or buttocks of a male performer or the genital areas or buttocks or breasts of a female performer. All licensees providing entertainment that involves performances, contests, acts or activities that presuppose the removal of any piece or article of clothing at any stage thereof, or presuppose a particular state of undress for the performance, contest, act or activity itself, by either male or female performers, and including but not restricted to striptease dancers, gogo dancers, exotic dancers, models, female impersonators, wet clothing contests, best body parts contests, and bands, singers or musicians, shall adhere to the following restrictions which shall be conditions attached to their licences: a. All such entertainers must perform on an elevated stage ONLY; b. The stage must be constructed and located so as to allow the entertainers to enter and exit from the stage without proceeding through those areas of the premises in which liquor may be served or consumed; c. Patrons of the premises shall NOT be seated or at any time be closer than two meters from the stage during any such performance; d. The entertainers shall NOT mingle, associate or socialize with the patrons at any time before, during or following their performance. In granting entertainment licences the Board will also prohibit or restrict other types of entertainment which in its judgment is detrimental to the orderly operation of a licensed premises. [....]

ii.

iii.

21 It need hardly be observed that a province could provide in its liquor control legislation a condition that a conviction of the licensee under the Criminal Code would be grounds for cancellation of the licence. It does not follow, however, that it is open to the province to reenact the criminal provision and accomplish the same result by effectively "convicting" the licensee of a criminal offence already existing in federal law, under its own process and in its own forum.

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[....] 39 The segregation of the federal and the provincial powers in all the authorities cited above relates to two different situations. The first situation concerns the regulation of licensed premises, and the provincial enactment in question goes to the imposition of conditions to be maintained by the licensee in order to maintain his licence. The second situation occurs where a province purports to append penalties to a valid provincial undertaking such as the regulation of streets in a municipality. In the former case, it is much easier to determine provincial validity because the reference to conduct is only in relation to the operation of an activity which properly falls within provincial competence. Thus the licensing program is part of a general provincial regulatory program. Consequently, the provincial legitimacy is found in s. 92(13) and/or (16). In the second category the problem is rendered more difficult by the fact that the provincial regulation reaches outside premises owned or controlled by a provincial licensee. In that circumstance, the province again must find a valid provincial regulatory program and must confine the offences created in support of that program to those which are reasonably necessary for that purpose. 40 The longer the penalty and the closer the terminology comes to describing conduct traditionally criminal, the more doubtful the validity of the provincial enactment. The exclusive right in Parliament to legislate with reference to criminal law and criminal procedure may not be eroded by provincial legislation disguised as that which is necessary to give effect to an otherwise valid provincial program. In Westendorp, supra, the municipality failed to demonstrate the existence of such a program, but in Dupond, supra, the Court was able to discern the existence of such legitimate provincial activity. In Rio 1, supra, at p. 441, despite the fact that the impugned legislation was part of a valid provincial licensing scheme, the provision in question was found to be indistinguishable from the provision of the Criminal Code. Therefore, as in Westendorp, supra, the legislation clearly invaded the exclusive criminal jurisdiction of Parliament and was ultra vires the province. However, in this appeal, the impugned legislation cannot be characterized as indistinguishable from the provisions of the Criminal Code. It is, rather, a valid provincial regulation that forms an important and integral part of a valid provincial licensing scheme. 41 It is clear, therefore, that we are here concerned with provincial legislative activity in the first category described above and, in particular, we are concerned with a provincial licensing scheme in relation to the sale of alcohol. The control of the sale of alcoholic beverages has, since the earliest times in our constitutional history, engaged the attention of the courts. It is clear from judgments cited above and many others that both sovereignties have a legitimate interest in some element of the production, distribution and consumption of alcohol. The province historically has always been found to have an interest in the sale of alcoholic beverages within the province. Attorney-General for Ontario v. Attorney-General for the Dominion, supra and Attorney-General of Manitoba v. Manitoba License Holders' Association, supra, find provincial jurisdiction in both s. 92(13) (property and civil rights) and s. 92(16) ("matters of a merely local or private nature in the province"). The supervision of taverns,

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beverage rooms, hotels, restaurants and other facilities to which the public may have recourse for the consumption of alcoholic beverages lends itself by its very nature to local administration. There is, of course, the omni-present national interest in criminal conduct in or out of these premises but it is to the province that the Constitution Act, 1867 looks for the daily establishment and supervision of these businesses. By their very nature these premises are matters of local interest and concern and they clearly operate within the realm of property and civil rights. It is not surprising, therefore, to find, albeit with some historic lapses, the regulatory root for these activities within the provincial legislature. Where the program is founded on a licensing system with regulations and conditions related to the provision of a licence, and where the province does not purport to establish an offence that is criminal in character, it is clearly constitutionally legitimate. The valid provincial regulatory program is the licensing system. In the circumstances of this appeal the picture is even clearer because the licensing system is related entirely to the local operations of premises engaged in the business of selling alcoholic beverages to the inhabitants. Entertainment is a natural "marketing tool", to use the words of the respondent, in these premises. In today's market it would seem essential that provident regulations concerning the consumption of alcoholic beverages should take the availability and the nature of entertainment in these premises into account in determining the public interest in the granting and renewal of licences for the operation of these outlets. 42 As a result, in this appeal there is to be found a provincial legislative program relating to the licensing of premises for the sale of alcoholic beverages and for the employment of entertainment as an aid to the marketing of those services. All of this falls within the provincial ambit. It is not necessary to find support for this provincial legislation either under the alleged right of the province to regulate with respect to "local morality" (McNeil, supra) or under the doctrine of paramountcy as it is outlined in Multiple Access Ltd. v. McCutcheon, supra. In this regard, I respectfully disagree with the Court of Appeal below in this appeal. If the impugned legislation was in pith and substance in relation to criminal law, as was found in Scowby v. Glendinning, supra (at p. 236), it would fall within the "exclusive jurisdiction" of Parliament. Instead, the impugned legislation now before this Court does not touch upon the forbidden field of criminal law but is a regulation enacted in relation to a valid provincial licensing scheme. [....] 44 I therefore would dismiss the appeal with costs.

Chatterjee v. Ontario

2009 SCC 19 Present: McLachlin C.J., LeBel, Deschamps, Fish, Abella and Rothstein JJ. The judgment of the Court was delivered by

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1 BINNIE J. -- The question raised on this appeal is whether the Ontario Remedies for Organized Crime and Other Unlawful Activities Act, 2001, S.O. 2001, c. 28 (otherwise known as Civil Remedies Act, 2001 or CRA), which authorizes the forfeiture of proceeds of unlawful activity, is ultra vires Ontario because it encroaches on the federal criminal law power. In my view, the CRA is valid provincial legislation. 2 The argument that the CRA is ultra vires is based in this case on an exaggerated view of the immunity of federal jurisdiction in relation to matters that may, in another aspect, be the subject of provincial legislation. Resort to a federalist concept of proliferating jurisdictional enclaves (or "interjurisdictional immunities") was discouraged by this Court's decisions in Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, and British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86, and should not now be given a new lease on life. As stated in Canadian Western Bank, "a court should favour, where possible, the ordinary operation of statutes enacted by both levels of government" (para. 37 (emphasis in original)). 3 The present appeal provides an opportunity to apply the principles of federalism affirmed in those recent cases. The CRA was enacted to deter crime and to compensate its victims. The former purpose is broad enough that both the federal government (in relation to criminal law) and the provincial governments (in relation to property and civil rights) can validly pursue it. The latter purpose falls squarely within provincial competence. Crime imposes substantial costs on provincial treasuries. Those costs impact many provincial interests, including health, policing resources, community stability and family welfare. It would be out of step with modern realities to conclude that a province must shoulder the costs to the community of criminal behaviour but cannot use deterrence to suppress it. 4 Moreover, the CRA method of attack on crime is to authorize in rem forfeiture of its proceeds and differs from both the traditional criminal law which ordinarily couples a prohibition with a penalty (see Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783) and criminal procedure which in general refers to the means by which an allegation of a particular criminal offence is proven against a particular offender. The appellant's answer, however, is that the effect of the CRA in rem remedy just adds to the penalties available in the criminal process, and as such the CRA invalidly interferes with the sentencing regime established by Parliament. It is true that forfeiture may have de facto punitive effects in some cases, but its dominant purpose is to make crime in general unprofitable, to capture resources tainted by crime so as to make them unavailable to fund future crime and to help compensate private individuals and public institutions for the costs of past crime. These are valid provincial objects. There is no operational conflict between the forfeiture provisions of the Criminal Code, R.S.C. 1985, c. C-46, and the CRA. It cannot reasonably be said that the CRA amounts to colourable criminal legislation. Accordingly, I would dismiss the appeal. 269

I.

Facts

5 The appellant was stopped by York Regional Police on March 27, 2003, because his car had no front licence plate. A computer search showed the police that he was in breach of his recognizance, which required him to reside in Ottawa, some 400 kilometres away. When the appellant acknowledged that he was then living in Thornhill, just north of Toronto, the officers arrested him and, incidental to the arrest, searched his car. They discovered $29,020 in cash, as well as an exhaust fan, a light ballast and a light socket. According to police, all of these items smelled of marijuana, although no marijuana was found. 6 The appellant was never charged with any offence in relation to the money, items, or any drug related activity. However, on May 13, 2003, the Attorney General of Ontario brought an interlocutory motion under ss. 4 and 9 of the CRA to preserve the seized money and equipment. A preservation order was granted. 7 On May 16, 2003, the Attorney General brought an application under ss. 3 and 8 of the CRA for forfeiture of the seized money as proceeds of unlawful activity and of the items as instruments of unlawful activity. In response, the appellant challenged the CRA's constitutionality: that challenge eventually led to this appeal. II. Relevant Statutory Provisions [Binnie J reproduces the Civil Remedies Act, 2001, the Criminal Code, s. 462.37 and the relevant heads of the Constitution Act, 1867 and then summarizes the judicial history of the litigation.] IV. Issue 14 The Chief Justice stated the following constitutional question: Are ss. 1 to 6 and ss. 16 to 17 of the Remedies for Organized Crime and Other Unlawful Activities Act, 2001, S.O. 2001, c. 28, ultra vires the Province of Ontario on the ground that they relate to a subject matter which is within the exclusive jurisdiction of the Parliament of Canada under s. 91(27) of the Constitution Act, 1867?

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On the hearing of the appeal the appellant narrowed his challenge to argue that the CRA is ultra vires to the extent it provides for forfeiture of the proceeds of federal offences because to that extent the CRA is in pith and substance criminal law. V. Analysis

15 Crime imposes significant costs at every level of government: federal, provincial and municipal. Impaired driving is a Criminal Code offence but carnage on the roads touches numerous matters within provincial jurisdiction including health, highways, automobile insurance and property damage. The cost associated with drug abuse is another example. Each level of government bears a portion of the costs of criminality and each level of government therefore has an interest in its suppression. The appellant's argument is, however, that the CRA adopts a method of fighting crime and compensating its victims that is not constitutionally permissible in relation to federal offences. The forfeiture of property tainted by crime in relation to federal offences, he says, "encroaches directly on the federal government's exclusive jurisdiction over criminal law and is ultra vires" (A.F., at para. 4). It is apparent that provincial objectives can become so entangled in the enforcement of criminal law as to be declared ultra vires. In Starr v. Houlden, [1990] 1 S.C.R. 1366 (the Patti Starr Inquiry), for example, it was held that provincial terms of reference for a judicial inquiry into a provincial fundraising scandal were ultra vires as constituting a substitute police investigation and preliminary inquiry in which the targets were made compellable witnesses. See also Scowby v. Glendinning, [1986] 2 S.C.R. 226. The appellant's contention that the CRA is an invalid attempt to increase the penalty for federal offences therefore requires careful scrutiny. A. Determination of the Pith and Substance

16 The first step in a constitutional challenge is to determine "the matter" (to track the language of the Constitution Act, 1867) in relation to which the impugned law is enacted. What is the essence of what the law does and how does it do it? "[T]wo aspects of the law must be examined: the purpose of the enacting body, and the legal effect of the law" (Reference re Firearms Act, at para. 16). This exercise is traditionally known as determining the law's "pith and substance". It may include not only the impugned Act but also external material surrounding its passage, including Hansard. In principle this assessment should be made without regard to the head(s) of legislative competence, which are to be looked at only once the "pith and substance" of the impugned law is determined. Unless the two steps are kept distinct there is a danger that the whole exercise will become blurred and overly oriented towards results.

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17 As its name suggests, the Civil Remedies Act, 2001, enacts civil remedies in relation to property tainted by crime. Its purpose, as stated in s. 1: The purpose of this Act is to provide civil remedies that will assist in, (a) compensating persons who suffer pecuniary or non-pecuniary losses as a result of unlawful activities; preventing persons who engage in unlawful activities and others from keeping property that was acquired as a result of unlawful activities; preventing property, including vehicles as defined in Part III.1, from being used to engage in certain unlawful activities [added in 2007, c. 13, s. 26]; and preventing injury to the public that may result from conspiracies to engage in unlawful activities.

(b)

(c)

(d)

While the Court is not bound by a purpose clause when considering the constitutional validity of an enactment, a statement of legislative intent is often a useful tool, particularly where it is apparent, as in this case, that the machinery created by the CRA corresponds to what is required to achieve the stated purposes. Purposes (a) and (b) contemplate the re-distribution of property tainted by crime. (Purpose (c) relates to the instruments of crime and is not before us.) Purpose (d) is directed to the prevention of crime-related injuries. It is suggested that the reference to "conspiracies" in (d) indicates a focus on combatting organized crime, and the appellant cites some extracts from Hansard to that effect. This, he says, entangles the CRA in criminal law. However, the province has good reason to deter organized crime, provided it stays within areas of provincial competence. There is nothing in the provisions of the CRA that are before us on this appeal that go beyond the redistribution of property tainted by crime, including federal crimes of all descriptions. 18 The internal evidence of purpose thus suggests a credible intent to recover from the proceeds of crime found in Ontario the costs to victims and to the public of criminality that would otherwise fall on the provincial treasury. Forfeiture is the transfer of property from the owner to the Crown. Forfeiture does not result in the conviction of anybody for any offence. On its face, therefore, the CRA targets property rights.

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19 In terms of the effects of the CRA, the Court in determining its pith and substance will look at "how the legislation as a whole affects the rights and liabilities of those subject to its terms" (R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 482). When appropriate, as well, a reviewing court will look beyond the legal effect -- beyond the statute's "four corners" -- to examine "the actual or predicted practical effect of the legislation in operation" (Morgentaler, at p. 483). The record shows that as of August 2007 approximately $3.6 million in property has been ordered forfeited under the CRA of which approximately $1 million had been paid out to direct victims, $900,000 had been paid in grants to various bodies on victims' issues, including the Peel Police Internet Child Exploitation Unit, leaving $1.7 million in special CRA accounts. Forfeited property included approximately $500,000 in property involved in marijuana grow operations, a Hamilton crack house (the ownership of which was then transferred to the City), vehicles involved in street racing contrary to the Highway Traffic Act, R.S.O. 1990, c. H.8, and approximately $1 million in cash involved in fraud or money laundering: Civil Forfeiture in Ontario 2007: An Update on the Civil Remedies Act, 2001 (2007). 20 Criminal "taint" of property has many sources. Section 2 of the CRA defines "unlawful activity" as "an act or omission that . . . is an offence under an Act of Canada, Ontario or another province or territory". The definition also extends to offences in jurisdictions outside Canada provided the conduct there would be an offence if committed in Ontario. It is significant that the CRA throws its "crime" net so widely. There is no singling out of offences in any particular jurisdiction, including federal offences in Canada. This suggests the province was concerned with the deleterious effects of crime in general rather than attempting in a colourable way to tack a penalty onto the federal criminal sentencing process. 21 Proceeds of crime are defined as "property acquired, directly or indirectly, in whole or in part, as a result of unlawful activity" (s. 2). The forfeiture proceedings are initiated by an application or action under the ordinary civil rules of the province. Proceedings are taken in rem against the property itself and can be initiated without joining the owners or possessors as defendants (who of course may be added as parties at a later date -- see now ss. 15.5 and 15.6). The Attorney General as applicant is not required to prove any particular offence against any particular offender. Initially these proceedings were styled Attorney General of Ontario v. $29,020 in Canada Currency, Exhaust Fan, Light Ballast, Light Socket (in Rem) and Robin Chatterjee, but Mr. Chatterjee was before the court as a property claimant, not as an accused. 22 The rest of the statutory machinery may be briefly described. Forfeiture "shall" be ordered unless it is not in the interest of justice to do so or a legitimate owner comes forward (s. 3(3)). Legitimate owners may bring any claims to the property within a 15-year limitation period (s. 3(5)). The proceeds of the forfeiture are deposited into a separate provincial revenue account (s. 6(1)), out of which a court may order Crown's costs to be paid (s. 6(2.1)). The money left in the account may 273

be directed to compensate persons who have suffered losses as a result of the unlawful activity, victims of general unlawful activity, the Crown in right of Ontario, municipal corporations or other public bodies in respect of their losses flowing from the unlawful activity or (if there is money left over) for such other purpose as may be prescribed by regulation (s. 6(3)). 23 In essence, therefore, the CRA creates a property-based authority to seize money and other things shown on a balance of probabilities to be tainted by crime and thereafter to allocate the proceeds to compensating victims of and remedying the societal effects of criminality. The practical (and intended) effect is also to take the profit out of crime and to deter its present and would-be perpetrators. B. Assignment to Heads of Legislative Power

24 Once the "pith and substance" is ascertained, it is necessary to classify that essential character of the law by reference to the provincial and federal "classes of subjects" listed in ss. 91 and 92 (or, in an appropriate case, ss. 93, 94A and 95) to determine if the law comes within the jurisdiction of the enacting legislature. Clearly, the CRA relates to property but, of course, much of the Criminal Code is dedicated to offences involving property. To characterize a provincial law as being in pith and substance related to property is therefore just a starting point. A good deal of overlap in measures taken to suppress crime is inevitable: Moreover, while, as subject matter of legislation, the criminal law is entrusted to the Dominion Parliament, responsibility for the administration of justice and, broadly speaking, for the policing of the country, the execution of the criminal law, the suppression of crime and disorder, has from the beginning of Confederation been recognized as the responsibility of the provinces . . . . [Emphasis added.] (Reference re Adoption Act, [1938] S.C.R. 398, at p. 403 (per Duff C.J.). See also Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, at pp. 207 and 213 (per Dickson J.).) C. The Provincial Aspect

25 As stated, the CRA fits neatly into the provincial competence in relation to Property and Civil Rights in the Province (Constitution Act, 1867, s. 92(13)) or Matters of a merely local or private Nature in the Province (s. 92(16)). The Attorneys General rely on Martineau v. M.N.R., 2004 SCC 81, [2004] 3

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S.C.R. 737, for the proposition that "civil mechanisms include the seizure as forfeit of goods and conveyances" (para. 27). 26 Our jurisprudence offers many examples of the interplay between provincial legislative jurisdiction over property and civil rights and federal legislative jurisdiction over criminal law and procedure. In Bédard v. Dawson, [1923] S.C.R. 681, for example, the Court upheld the validity of a provincial law that authorized a judge to close a "disorderly hous[e]" for up to one year. The Court held that the law was directed to the enjoyment of property rights not criminal law. Duff J. (later C.J.C.) held that "[t]he legislation impugned seems to be aimed at suppressing conditions calculated to favour the development of crime rather than at the punishment of crime" (p. 684). Idington J., in words relevant to the disposition of the present appeal, said that: As to the argument addressed to us that the local legislatures cannot legislate to prevent crime, I cannot assent thereto for in a very wide sense it is the duty of the legislature to do the utmost it can within its power to anticipate and remove, so far as practicable, whatever is likely to tend to produce crime; . . . [Emphasis added; p. 684.] 27 In Switzman v. Elbling, [1957] S.C.R. 285, this Court struck down a Quebec law providing for the closure of houses in which socialism or bolshevism were said to be propagated (known popularly as the "Padlock law"). Kerwin C.J. and Nolan and Cartwright JJ. distinguished Bédard. Unlike in Bédard, the impugned statute in Switzman was only superficially concerned with the control and enjoyment of property; in their view its dominant purpose was to criminalize and punish the propagation of communism. By contrast, the CRA does not define a new offence or clearly take aim at any particular category of criminal conduct. (Rand and Abbott JJ. held in Switzman that the Padlock Law's dominant purpose was to suppress the dissemination of political views, an issue which, however important, has no role in the CRA vires debate.) 28 In Attorney General for Canada and Dupond v. City of Montreal, [1978] 2 S.C.R. 770, the Court upheld a municipal ordinance regulating public demonstrations with a view to the prevention of "conditions conducive to breaches of the peace and detrimental to the administration of justice" (p. 791). The Court held the municipal law to be in relation to "Matters of a merely local or private Nature" under s. 92(16) and stated at p. 792 that "[i]t is now well established that the suppression of conditions likely to favour the commission of crimes falls within provincial competence", citing Bédard and Di Iorio v. Warden of the Montreal Jail. The Attorney General of Ontario also argues that the CRA in a sense operates as a substitute for civil litigation by victims against criminal offenders, a notoriously difficult and costly exercise.

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29 The question, however, is at what point does a provincial measure designed to "suppress" crime become itself "criminal law"? There will often be a degree of overlap between measures enacted pursuant to the provincial power (property and civil rights) and measures taken pursuant to the federal power (criminal law and procedure). In such cases it is necessary for the Court to identify the "dominant feature" of an impugned measure. If, as is argued by the Attorneys General here, the dominant feature of the CRA is property and civil rights, it will not be invalidated because of an "incidental" intrusion into the field of criminal law. 30 For the reasons that follow I agree that the CRA was enacted "in relation to" property and civil rights and may incidentally "affect" criminal law and procedure without doing violence to the division of powers. As noted by Dickson C.J. in General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at p. 670, "[b]oth provincial and federal governments have equal ability to legislate in ways that may incidentally affect the other government's sphere of power." D. The Federal Aspect

31 The appellant's argument is that the CRA, properly analyzed, is in pith and substance an enactment in relation to the criminal law. It imposes an additional penal regime in relation to federal offences that supplements, and may on occasion, conflict with the federal forfeiture provisions of Part XII.2 of the Criminal Code. The first argument leads to a conclusion that the CRA is ultra vires. The second argument would lead to the conclusion that the CRA is rendered inoperative in relation to federal offences only by reason of operational conflict which must be resolved in favour of the federal law by virtue of the doctrine of paramountcy. 32 The appellant argues that Bédard must be read in light of the Court's later decisions in Industrial Acceptance Corp. v. The Queen, [1953] 2 S.C.R. 273, and Johnson v. Attorney General of Alberta, [1954] S.C.R. 127. In the Industrial Acceptance case the Court upheld the federal forfeiture provisions contained in the Opium and Narcotic Drug Act, 1929, S.C. 1929, c. 49, on the ground that it "provides for the forfeiture of property used in the commission of a criminal offence and is, therefore, legislation in relation to criminal law" (p. 275). This decision is of limited interest in the present appeal as no one contests the validity of the federal law. Co-operative federalism recognizes that overlaps between provincial and federal laws are inevitable: Matters, however, which in one aspect and for one purpose fall within the jurisdiction of a province over the subjects designated by one or more of the heads of s. 92, may in another aspect and for another purpose, be proper subjects of legislation under s. 91, and in particular under head 27. 276

(Reference re Validity of the Combines Investigation Act and of s. 498 of the Criminal Code, [1929] S.C.R. 409, at p. 413) The mere existence of a valid federal law bearing some similarities to the challenged provincial law does not, without more, demonstrate the invalidity of the latter. 33 Johnson, on the other hand, did involve an attack on the vires of a provincial statute on the basis that it trenched on the federal criminal law power. In that case, the Court (in a 4-3 split) declared invalid the Alberta Slot Machine Act, R.S.A. 1942, c. 333, which had laid down that "[n]o slot machine shall be capable of ownership, nor shall the same be subject of property rights within the Province". The Alberta definition of a slot machine included devices which, under the Criminal Code, were deemed to be the means for playing a game of chance. The police were authorized to cause a summons to be issued to the occupant to appear before a justice of the peace to show cause (if possible) why the machine should not be considered a slot machine. Failing to do so resulted in the forfeiture of the slot machine to the provincial Crown. 34 Johnson is distinguishable on a number of grounds. The deciding vote was cast by Rand J., whose main reason for striking down the legislation was that it conflicted with the gaming house provisions in the Criminal Code. In the alternative, the provisions -- though dealing on their face with property in the province -- were in reality directed against gambling, a "public or community evil" (p. 137) and as such must perforce be criminal law. 35 As to the main argument, Rand J. wrote that the field of slot machines was "already occupied by the Criminal Code" (p. 135). "An additional process of forfeiture by the province", he continued, "would both duplicate the sanctions of the Code and introduce an interference with the administration of its provisions" (p. 138). Rand J.'s "occupying the field" reasoning has been rendered obsolete by subsequent case law which makes it clear that a federal law touching on a "matter" does not in general create a negative inference ousting the operation of a provincial law otherwise valid in relation to provincial objects. On the contrary, s. 11 of the Criminal Code provides that "[n]o civil remedy for an act or omission is suspended or affected by reason that the act or omission is a criminal offence." 36 If the dominant purpose of the provincial enactment is in relation to provincial objects, the law will be valid, and if the enactments of both levels of government can generally function without operational conflict they will be permitted to do so. In factual situations where operational conflict does occur, the conflict will be resolved by the restrained view of federal paramountcy established by Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, where it was said at p. 191:

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In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says "yes" and the other says "no"; "the same citizens are being told to do inconsistent things"; compliance with one is defiance of the other. See also Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59; M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961, at paras. 40-41; Lafarge Canada, at paras. 75-77. To the extent Rand J. considered dominant the criminal law aspect of the Alberta Slot Machine Act, it should be remembered that the person suffering forfeiture -- the keeper of the slot machine -- had also committed the gaming house offence. This "match" helped the Court conclude in Johnson that the provincial forfeiture, in pith and substance, was punishment for a crime. The same is not true of CRA forfeiture. 37 The other judges in the Johnson majority agreed that the forfeiture was designed to supplement punishment, and that this made it criminal law in pith and substance. They also felt that legislation in relation to gaming was classic criminal law, because of the relation to public morality. The three dissenting judges would have upheld the provincial law, citing Bédard. 38 The appellant and the interveners supporting him invoke Industrial Acceptance and Johnson as authorities for the proposition that "[f]orfeiture, in the context of property tainted by crime, is punishment" (A.F., at para. 44) but, in my view, neither case read in light of our subsequent jurisprudence supports such a broad proposition. 39 Indeed R. v. Zelensky, [1978] 2 S.C.R. 940, shows that it is the federal provisions purporting to attach property consequences to the sentencing process, not the provincial forfeiture provisions, that push the boundary of legislative competence. The Manitoba Court of Appeal in Zelensky had invalidated what was then s. 653 of the Criminal Code on the basis that compensation orders constituted an "unwarranted invasion of provincial jurisdiction", and did "not become valid because of the objective in preventing a criminal from profiting from his crime" ((1976), 73 D.L.R. (3d) 596, at p. 618). On appeal to this Court, however, Laskin C.J. was prepared to uphold the validity of the Criminal Code compensation provisions because he considered them to be part of the sentencing process: I wish to dwell further on the course of proceedings in this case in order to provide some guidance to trial judges on the proper application of s. 653 and in order to make clear that s. 653 is not to be used in terrorem as a substitute for or a reinforcement for civil proceedings. Its validity is based, as I have already said, on its association with the

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sentencing process, and its administration in particular cases must be limited by that consideration. [Emphasis added; p. 962.] Pigeon J., writing for three judges in dissent, would have struck down the Criminal Code provisions on the basis that a "compensation order is nothing but a civil judgment" (p. 984). There is nothing in the judgment to deny that a forfeiture measure which is independent of the sentencing process would be squarely within the provincial competence. E. Overlapping Effects

40 The Constitution permits a province to enact measures to deter criminality and to deal with its financial consequences so long as those measures are taken in relation to a head of provincial competence and do not compromise the proper functioning of the Criminal Code including the sentencing provisions. In Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396, it was held that a province could validly impose automatic suspension of a provincial driver's licence after conviction for impaired driving under the Criminal Code. In Ross v. Registrar of Motor Vehicles, [1975] 1 S.C.R. 5, the Court upheld the automatic provincial licence suspension following a conviction for impaired driving even though the sentencing judge in the criminal case had purported to allow Ross to continue to drive on an intermittent basis. There is no general bar to a province's enacting civil consequences to criminal acts provided the province does so for its own purposes in relation to provincial heads of legislative power. 41 In Egan and Ross, the provincial laws were clearly aimed at deterring impaired driving, notwithstanding its status as a federal offence, and with good reason. Drunk drivers create public safety hazards on provincial highways and their accidents impose costs by way of examples on the provincial health system and provincial police and highway services. Similarly, the fact the CRA aims to deter federal offences as well as provincial offences and indeed offences committed outside Canada, is not fatal to its validity. On the contrary, its very generality shows that the province is concerned about the effects of crime as a generic source of social ill and provincial expense, and not with supplementing federal criminal law as part of the sentencing process. F. Interference With the Criminal Code Forfeiture Provisions

42 The argument arises in this case, as it did in Johnson, that the provisions of the provincial Act should be set aside as they "introduce an interference with the administration of [the Criminal Code 279

forfeiture] provisions" (p. 138). If such operational interference were demonstrated, of course, or if it were shown that the CRA frustrated the federal purpose underlying the forfeiture provisions of the Criminal Code, the doctrine of federal paramountcy would render inoperative the CRA to the extent of the conflict or interference (Canadian Western Bank, at paras. 98-102). 43 Consideration must therefore be given to Part XII.2 of the Criminal Code which in s. 462.37(1) provides as follows: . . . where an offender is convicted, . . . of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law. 44 The Criminal Code also provided that if the court is satisfied beyond a reasonable doubt that the property in question represents the proceeds of crime, the court may order forfeiture even without a showing that the offence was committed in relation to that property (s. 462.37(2)). 45 Parliament's legislative authority to bring about property consequences that are not directly connected with the offence for which an accused is being sentenced is not before the Court. I do not suggest any infirmity with any aspect of Criminal Code forfeiture. I say only that we have heard no argument on these provisions. 46 On the other hand, we have had the benefit of ample argument on the vires of the CRA and it is clear that its provisions are not part of any "sentencing process". The CRA does not require an allegation or proof that a particular person committed a particular crime. For example, a drug dealer might, in a fit of conscience, gift the proceeds of a drug sale to a charity. Under the CRA, the money would constitute the proceeds of unlawful activity, and the charity would not be a "legitimate owner" within the scope of s. 2 because the charity would have acquired the property after the unlawful activity occurred and would not have given "fair value" for it. The money would, thus, be subject to forfeiture. In the present case, the CRA judge could have accepted wholeheartedly the appellant's claim that he was entirely innocent of any involvement with marijuana cultivation, yet still ordered forfeiture.

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47 Even when the owner has gained the property by means of crime, the CRA forfeiture proceeding does not require, and may not involve, identifying the owner with a particular offence. This would be the case, for example, if cash were seized from a gang safe house. In such a case, the Attorney General may be able to show on a balance of probabilities that money constituted the proceeds of crime in general without identifying any particular crime or criminal. G. Interference in the Sentencing Process

48 Nevertheless the appellant argues that the CRA does in some situations couple a de facto penalty to Criminal Code prohibition. Often, he says, the owner of the forfeited property will indeed be the person suspected (even if not convicted) of committing the crime which taints the property. Nevertheless, as pointed out in Martineau, it may not be punishment to deprive a person of illegally obtained property -- "[i]f the offender were not the actual owner of the seized property, he or she would not, in principle, be punished by the forfeiture thereof" (para. 36). 49 The concern has been that the federal forfeiture provisions will be displaced by the CRA with its lower threshold of proof: see M. Gallant, "Ontario (Attorney General) v. $29,020 in Canadian Currency: A Comment on Proceeds of Crime and Provincial Forfeiture Laws" (2006), 52 Crim. L.Q. 64, at p. 83. This may be true, but where no forfeiture is sought in the sentencing process, I see no reason why the Attorney General cannot make an application under the CRA. Where forfeiture is sought and refused in the criminal process, a different issue arises. 50 The appellant points to Ontario (Attorney General) v. Cole-Watson, [2007] O.J. No. 1742 (QL) (S.C.J.), where an accused who had $20,000 in cash in his possession when arrested was acquitted of knowing possession of the proceeds of crime (Criminal Code, s. 354). During sentencing on other offences, the trial judge made an order under s. 490 of the Criminal Code that the money be returned to the mother of the accused for whom the accused claimed he had received the money for deposit. The Crown declined to return the money or appeal the order, and instead brought a CRA application for forfeiture of the money as criminal proceeds. The CRA court considered the Attorney General's claim to be a collateral attack on the criminal court judge's order and dismissed the CRA application. 51 I believe the various doctrines of res judicata, issue estoppel and abuse of process are adequate to prevent the prosecution from re-litigating the sentencing issue. Detailed consideration must await a case where the clash of remedies is truly in issue. Reference may be made, however, to Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. In that case, in the context of civil proceedings launched in the wake of a criminal conviction, the Court said that it is an abuse of process 281

"where the litigation before the court is found to be in essence an attempt to relitigate a claim which the [criminal] court has already determined" (para. 37). 52 Accordingly, procedural options are available where a CRA judge considers that the conduct of the Attorney General is abusive of the processes of the Court. Furthermore, if in particular circumstances a conflict arises with the CRA to the extent that dual compliance is impossible, then the doctrine of paramountcy would render the CRA inoperable to the extent of the conflict. VI. Disposition 53 In summary, the CRA is valid provincial legislation. It does not "introduce an interference with the administration of [the Criminal Code] provisions" within the scope of the mischief identified by Rand J. in Johnson. Given the flexibility of the remedies potentially available where CRA proceedings are initiated by the Crown after an unsuccessful claim for forfeiture under s. 462.37, I conclude that there is no necessary operational conflict between the Criminal Code and the CRA such as to invalidate the latter. 54 In my opinion the CRA is valid. I would dismiss the appeal. The application judge found that this was a test case and that, as a result, there should be no order as to costs. The Court of Appeal agreed. We are of a similar view and make no order as to costs. 55 The constitutional question should be answered as follows: Are ss. 1 to 6 and ss. 16 to 17 of the Remedies for Organized Crime and Other Unlawful Activities Act, 2001, S.O. 2001, c. 28, ultra vires the Province of Ontario on the ground that they relate to a subject matter which is within the exclusive jurisdiction of the Parliament of Canada under s. 91(27) of the Constitution Act, 1867? Answer: No. Appeal dismissed.

3.4 ­ Regulation of the Economy

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Citizens Insurance Co. of Canada v. Parsons, 1881

[1881] J.C.J. No. 1 Judicial Committee of the Privy Council, London, England Sir Barnes Peacock, Sir Montague E. Smith, Sir Robert P. Collier, Sir Richard Couch and Sir Arthur Hobhouse FROM THE SUPREME COURT OF CANADA The judgment of their Lordships was delivered by 1 SIR MONTAGUE SMITH:-- The questions in these appeals arise in two actions brought by the same plaintiff (the respondent) upon contracts of insurance against fire of buildings situate in the province of Ontario, in the dominion of Canada. 2 The most important question in both appeals is one of those, already numerous, which have arisen upon the provisions of the British North America Act, 1867, relating to the distribution of legislative powers between the parliament of Canada and the legislatures of the provinces, and, owing to the very general language in which some of these powers are described, the question is one of considerable difficulty. [....] 17 The main contention on the part of the respondent was that the Ontario Act in question had relation to matters coming within the class of subjects described in No. 13 of sect. 92, viz., "Property and civil rights in the province." The Act deals with policies of insurance entered into or in force in the province of Ontario for insuring property situate therein against fire, and prescribes certain conditions which are to form part of such contracts. These contracts, and the rights arising from them, it was argued, came legitimately within the class of subject. "Property and civil rights." The appellants, on the other hand, contended that civil rights meant only such rights as flowed from the law, and gave as an instance the status of persons. Their Lordships cannot think that the latter construction is the correct one. They find no sufficient reason in the language itself, nor in the other parts of the Act, for giving so narrow an interpretation to the words "civil rights." The words are sufficiently large to embrace, in their fair and ordinary meaning, rights arising from contract, and such rights are not included in express terms in any of the enumerated classes of subjects in sect. 91. 18 It becomes obvious, as soon as an attempt is made to construe the general terms in which the classes of subjects in sects. 91 and 92 are described, that both sections and the other parts of the Act must be looked at to ascertain whether language of a general nature must not by necessary implication or reasonable intendment be modified and limited. In looking at sect. 91, it will be found not only that there is no class including, generally, contracts and the rights arising from them, but that one class of contracts is mentioned and enumerated, viz., "18, bills of exchange and promissory notes," 283

which it would have been unnecessary to specify if authority over all contracts and the rights arising from them had belonged to the dominion parliament. 19 The provision found in sect. 94 of the British North America Act, which is one of the sections relating to the distribution of legislative powers, was referred to by the learned counsel on both sides as throwing light upon the sense in which the words "property and civil rights" are used. By that section the parliament of Canada is empowered to make provision for the uniformity of any laws relative to "property and civil rights" in Ontario, Nova Scotia, and New Brunswick, and to the procedure of the Courts in these three provinces, if the provincial legislatures choose to adopt the provision so made. The province of Quebec is omitted from this section for the obvious reason that the law which governs property and civil rights in Quebec is in the main the French law as it existed at the time of the cession of Canada, and not the English law which prevails in the other provinces. The words "property and civil rights" are, obviously, used in the same sense in this section as in No. 13 of sect. 92, and there seems no reason for presuming that contracts and the rights arising from them were not intended to be included in this provision for uniformity. If, however, the narrow construction of the words "civil rights," contended for by the appellants were to prevail, the dominion parliament could, under its general power, legislate in regard to contracts in all and each of the provinces and as a consequence of this the province of Quebec, though now governed by its own Civil Code, founded on the French law, as regards contracts and their incidents, would be subject to have its law on that subject altered by the dominion legislature, and brought into uniformity with the English law prevailing in the other three provinces, notwithstanding that Quebec has been carefully left out of the uniformity section of the Act. 20 It is to be observed that the same words, "civil rights," are employed in the Act of 14 Geo. 3, c. 83, which made provision for the Government of the province of Quebec. Sect. 8 of that Act enacted that His Majesty's Canadian subjects within the province of Quebec should enjoy their property, usages, and other civil rights, as they had before done, and that in all matters of controversy relative to property and civil rights resort should be had to the laws of Canada, and be determined agreeably to the said laws. In this statute the words "property" and "civil rights" are plainly used in their largest sense; and there is no reason for holding that in the statute under discussion they are used in a different and narrower one. 21 The next question for consideration is whether, assuming the Ontario Act to relate to the subject of property and civil rights, its enactments and provisions come within any of the classes of subjects enumerated in sect. 91. The only one which the Appellants suggested as expressly including the subject of the Ontario Act is No. 2, "the regulation of trade and commerce." 22 A question was raised which led to much discussion in the Courts below and this bar, viz., whether the business of insuring buildings against fire was a trade. This business, when carried on for the sake of profit, may, no doubt, in some sense of the word, be called a trade. But contracts of indemnity made by insurers can scarcely be considered trading contracts, nor were insurers who made 284

them held to be "traders" under the English bankruptcy laws; they have been made subject to those laws by special description. Whether the business of fire insurance properly falls within the description of a "trade" must, in their Lordships' view, depend upon the sense in which that word is used in the particular statute to be construed; but in the present case their Lordships do not find it necessary to rest their decision on the narrow ground that the business of insurance is not a trade. 23 The words "regulation of trade and commerce," in their unlimited sense are sufficiently wide, if uncontrolled by the context and other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade with foreign governments, requiring the sanction of parliament, down to minute rules for regulating particular trades. But a consideration of the Act shews that the words were not used in this unlimited sense. In the first place the collocation of No. 2 with classes of subjects of national and general concern affords an indication that regulations relating to general trade and commerce were in the mind of the legislature, when conferring this power on the dominion parliament. If the words had been intended to have the full scope of which in their literal meaning they are susceptible, the specific mention of several of the other classes of subjects enumerated in sect. 91 would have been unnecessary; as, 15, banking; 17, weights and measures; 18, bills of exchange and promissory notes; 19, interest; and even 21, bankruptcy and insolvency. 24 "Regulation of trade and commerce" may have been used in some such sense as the words "regulations of trade" in the Act of Union between England and Scotland (6 Anne, c. 11), and as these words have been used in Acts of State relating to trade and commerce. Article V. of the Act of Union enacted that all the subjects of the United Kingdom should have "full freedom and intercourse of trade and navigation" to and from all places in the United Kingdom and the colonies; and Article VI. enacted that all parts of the United Kingdom from and after the Union should be under the same "prohibitions, restrictions, and regulations of trade." Parliament has at various times since the Union passed laws affecting and regulating specific trades in one part of the United Kingdom only, without its being supposed that it thereby infringed the Articles of Union. Thus the Acts for regulating the sale of intoxicating liquors notoriously vary in the two kingdoms. So with regard to Acts relating to bankruptcy, and various other matters. 25 Construing therefore the words "regulation of trade and commerce" by the various aids to their interpretation above suggested, they would include political arrangements in regard to trade requiring the sanction of parliament, regulation of trade in matters of interprovincial concern, and it may be that they would include general regulation of trade affecting the whole dominion. Their Lordships abstain on the present occasion from any attempt to define the limits of the authority of the dominion parliament in this direction. It is enough for the decision of the present case to say that, in their view, its authority to legislate for the regulation of trade and commerce does not comprehend the power to regulate by legislation the contracts of a particular business or trade, such as the business of fire insurance in a single province, and therefore that its legislative authority does not in the present case

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conflict or compete with the power over property and civil rights assigned to the legislature of Ontario by No. 13 of sect. 92.

Canada v. Eastern Terminal Elevator Co., 1925

[1925] S.C.R. 434 Supreme Court of Canada Present: Anglin C.J.C. and Idington, Duff, Mignault and Rinfret JJ. ON APPEAL FROM THE EXCHEQUER COURT OF CANADA DUFF J.:-- The Grain Act was passed in 1912. The authors of the legislation proceeded upon the view upon which the Dominion Parliament had acted in 1910 in enacting the Insurance Act, that, in exercise of the powers given by sec. 91(2), for the regulation of trade and commerce, the Dominion Parliament could, by a system of licences and otherwise, regulate individual trades, both locally and in respect of interprovincial and external trade. The Act provides for a Board, to be known as the Board of Grain Commissioners, to be appointed by the Governor in Council, and this Board is invested with very wide powers. By sec. 20, the Board is empowered, with the consent of the Governor in Council, to make rules and regulations for the government, control and licensing of terminal and other elevators. By sec. 119, the Board shall -(a) require all track-buyers and owners and operators of elevators, warehouses and mills, and all grain commission merchants and primary grain dealers to take out annual licences; (b) fix the amount of bonds to be given by the different operators of elevators, mills and flat warehouses and by grain commission merchants, track-buyers and primary grain dealers; (c) require the person so licensed to keep books in form approved by the Board; (d) supervise the handling and storage of grain in and out of elevators, warehouses and cars; (e) enforce rules and regulations made under this Act. And by subsection (4), any person who engages in any business for which a licence is required, without obtaining such a licence, is declared guilty of an offence. Section 128(2) specifically provides for the licensing of the owners of terminal elevators as public warehousemen. By sec. 123 no person owning, managing, operating or otherwise interested in any terminal elevator shall buy or sell grain at any point in the Eastern or Western Inspection Division,

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subject to certain exceptions not material. By sec. 153 it is specifically provided that the owner or lessee of a country elevator must be licensed to receive, ship, store or handle grain. By sec. 156 the Board is specifically authorized to promulgate regulations respecting country elevators. In addition to the power of regulation conferred upon the Board, the Act contains elaborate substantive provisions defining the duties of persons engaged in the business of operating elevators, in respect of the cleaning of grain, the grading of it, the storage of it; defines the effect of warehouse receipts, the rights of holders of them. By secs. 210 et seq., provision is made for licensing persons in the Western Division to carry on the business of selling grain on commission; and persons not so licensed are prohibited from engaging in that occupation. By secs. 218 et seq. there is provision for licensing track-buyers, and prohibition against engaging in the occupation of a track-buyer without such a licence. By secs. 219 (a) et seq. there is a prohibition against carrying on the business of a primary grain dealer without first having obtained a licence to do so from the Board. The Act is an attempt to regulate, directly and through the instrumentality of Grain Commissioners, the occupations mentioned. It is also an attempt to regulate generally elevators as warehouses for grain, and the business of operating them; and it seems, ex facie, to come within the decision of the Judicial Committee, Attorney General for Canada v. Attorney General for Alberta [[1916] 1 A.C. 588.], condemning the Insurance Act of 1910 as ultra vires. Mr. Symington, in a very able argument, attempted to support the Act on the ground that the trade in grain is largely an external trade (between seventy and eighty per cent, apparently, of the grain produced in the country is exported); and that the provisions of the Act are, on the whole, an attempt to regulate a branch of external trade, the provisions dealing with local matters being, as a rule, subsidiary and reasonably ancillary to the main purpose of the Act. It is undeniable that one principal object of this Act is to protect the external trade in grain, and especially in wheat, by ensuring the integrity of certificates issued by the Grain Commission in respect of the quality of grain, and especially of wheat; and the beneficent effect and the value of the system provided by the legislation as a whole is not at all disputed by anybody. I do not think it is fairly disputable, either, that the Dominion possesses legislative powers, in respect of transport (by its authority over Dominion railways, over lines of ships connecting this country with foreign countries, over navigation and shipping); in respect of weight and measures; in respect of trade and commerce, interpreted as that phrase has been interpreted; which would enable it effectively, by properly framed legislation, to regulate this branch of external trade for the purpose of protecting it, by ensuring correctness in grading and freedom from adulteration, as well as providing for effective and reliable public guarantees as to quality. It does not follow that it is within the power of Parliament to accomplish this object by assuming, as this legislation does, the regulation in the provinces of particular occupations, as such, by a licensing system and otherwise, and of local works and

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undertakings, as such, however important and beneficial the ultimate purpose of the legislation may be. There are, no doubt, many provisions of this statute which, as they stand, can be sustained; with them we are not concerned at this moment. The particular provision which is sought to be enforced is one of a series of provisions which are designed to regulate elevators and the occupations of those who make it their business to operate elevators. The particular provision, if it stood alone, might, perhaps, be sustained as a tax, but it cannot be separated from its context; it is only one part of a scheme for the regulation of elevators. There is one way in which the Dominion may require authority to regulate a local work such as an elevator; and that is, by a declaration properly framed under section 92(10) of the B.N.A. Act. See Union Colliery Co. of B.C. v. Bryden [[1899] A.C. 580 at p. 585.]. This, of course, is not to say that there may not be elevators subject to Dominion control, as being, for example, adjuncts of the undertaking of a Dominion railway or of a company operating a line of steamships under Dominion jurisdiction; but the general regulation of all elevators is a different matter. There are two lurking fallacies in the argument advanced on behalf of the Crown; first, that, because in large part the grain trade is an export trade, you can regulate it locally in order to give effect to your policy in relation to the regulation of that part of it which is export. Obviously that is not a principle the application of which can be ruled by percentages. If it is operative when the export trade is seventy per cent of the whole, it must be equally operative when that percentage is only thirty; and such a principle in truth must postulate authority in the Dominion to assume the regulation of almost any trade in the country, provided it does so by setting up a scheme embracing the local, as well as the external and interprovincial trade; and regulation of trade, according to the conception of it which governs this legislation, includes the regulation in the provinces of the occupations of those engaged in the trade, and of the local establishments in which it is carried on. Precisely the same thing was attempted in the Insurance Act of 1910, unsuccessfully. The other fallacy is (the two are, perhaps, different forms of the same error) that the Dominion has such power because no single province, nor, indeed, all the provinces acting together, could put into effect such a sweeping scheme. The authority arises, it is said, under the residuary clause because of the necessary limits of the provincial authority. This is precisely the view which was advanced in the Board of Commerce Case [[1922] 1 A.C. 191.] and, indeed, is the view which was unsuccessfully put forward in the Montreal Street Railway Case [[1912] A.C. 333.], where it was pointed out that in a system involving a division of powers such as that set up by the British North America Act, it may often be that subsidiary legislation by the provinces or by the Dominion is required to give full effect to some beneficial and necessary scheme of legislation not entirely within the powers of either. In one respect there is a close analogy between this case and the Montreal Street Railway Case [[1912] A.C. 333.]. The expedient which their Lordships there pointed out as the appropriate one in order to enable the Dominion to acquire the authority it was seeking to exercise, is precisely that by which the Dominion could invest itself with the authority over such elevators as it might be considered necessary to regulate; that is to say, by resorting, as already suggested, to the power conferred by 288

section 92(10) to assume, through the procedure there laid down, jurisdiction in respect of "local works." Fortunately, however, to repeat what has been said above, the control possessed by the Dominion over the subject matters mentioned, and especially over transport (both land transport and water transport) and over external trade, would really appear to be amply sufficient to enable the Dominion, by appropriately framed legislation, effectively to secure the essential objects of this statute. The appeal should be dismissed with costs.

Carnation Co. v. Quebec (Agricultural Marketing Board), 1968

[1968] S.C.R. 238 Supreme Court of Canada Present: Fauteux, Abbott, Martland, Judson, Ritchie, Hall and Spence JJ. ON APPEAL FROM THE COURT OF QUEEN'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC The judgment of the Court was delivered by MARTLAND J.:-- This is an appeal from the Court of Queen's Bench for the Province of Quebec (Appeal Side) [ [1967] Que. Q.B. 122.], which confirmed the judgment given in the Superior Court, upholding the validity of three decisions of the Quebec Agricultural Marketing Board, hereinafter referred to as "the Marketing Board". The question in issue before this Court is as to whether, in making these orders, the Marketing Board had infringed on the exclusive legislative powers of Parliament under s. 91(2) of the British North America Act to regulate trade and commerce. Submissions on this issue were made on behalf of the Attorney-General of Canada and the AttorneyGeneral of Alberta, in addition to those presented by the parties to the litigation. The Marketing Board was created as a corporation by the provisions of the Quebec Agricultural Marketing Act, 4-5 Eliz. II, 1955-56 (Que.), c. 37. It was empowered, inter alia, to approve joint marketing plans, and to arbitrate any dispute arising in the course of carrying out a joint marketing plan. The Act provided that ten or more producers of agricultural products in any territory in Quebec could apply to the Marketing Board for approval of a joint plan for the marketing of one or more classes of farm products in such territory, if such plan was supported by a vote of at least 75 per cent in number and value of all producers concerned. On July 25, 1957, the Marketing Board approved The Quebec Carnation Company Milk Producers' Plan. The administration of the Plan was entrusted to The Quebec Carnation Company Milk Producers' Board. The Plan bound all bona fide milk producers shipping milk and dairy products to any 289

of the plants of the appellant in Quebec. The Producers' Board had power to negotiate with the buyer (the appellant) for the marketing and sale to it of milk and dairy products from the farms of producers bound by the Plan. The Plan provided for a board of arbitration, which might be the Marketing Board, to decide conflicts in the event of a failure to agree with the appellant in the negotiation or execution of a convention. Agreement was not reached as to the purchase price of milk to be purchased by the appellant from the producers, pursuant to the Plan. The matter was arbitrated by the Marketing Board which, after hearing evidence for both sides, wrote extensive reasons, and determined a price of $3,07 per hundred pounds, on December 18, 1958. Subsequently, on June 11, 1962, after a further arbitration, the Marketing Board decided on a price of $2.78 per hundred pounds. It is these orders of the Marketing Board, which approved the Plan, and which determined the price to be paid by the appellant for milk purchased from producers subject to the Plan, which are the subject of the appellant's attack. The appellant was incorporated under the Canadian Companies Act, and has its head office in Toronto. It operates, in Quebec, an evaporated milk plant at Sherbrooke and a receiving station at Waterloo. During the period concerned, it purchased raw milk from approximately 2,000 framers, situated mostly in the Eastern Townships. At the Sherbrooke plant it processes raw milk into evaporated milk. The major part of such production is shipped and sold outside Quebec. Milk received at the Waterloo receiving station, during the relevant period, was either sent to the Sherbrooke plant, for processing, or else, skimmed, the butterfat being sold to other manufacturers, and the skim milk being sent to appellant's plant at Alexandria, Ontario, to be processed into skim milk powder. The appellant, during the relevant period, was the only evaporated milk manufacturer in Quebec, with the exception of the Granby Co-operative, which, as a co-operative, was not subject to the provisions of the Quebec agricultural Marketing Act. The evidence showed that, since December 18, 1958, the date of the first arbitration award, prices paid by the appellant were about 10 to 25 cents per hundred pounds higher than those paid by other purchasers of raw milk in the same area. The Quebec Agricultural Marketing Act was repealed in 1963 and replaced by a new Act, with the same title, 11-12 Eliz. II, 1963 (Que.), c. 34. Section 54 of the new Act provides that: 54. The joint plans approved under the act 4-5 Elizabeth II, chapter 37, and in existence on the day of the coming into force of this act, as well as the agreements and decisions relating thereto, shall remain in force and shall be subject to the provisions of this act.

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Such plans and the agreements and decisions relating thereto shall not be invalid by reason of the fact that they contemplate the marketing of a farm product in a territory other than that of the origin of such product, or the marketing of a farm product intended for a specified purpose or purchaser. This provision shall apply to pending cases except as to costs. This provision met the objection which had originally been made by the appellant that the Marketing Plan was invalid because it did not fix a minimum price for milk to be paid by all buyers in a given territory and because it applied only to the appellant as a buyer. Section 18 of the first Act had provided: 18. Ten or more producers in any territory of the Province may apply to the Provincial Board for the approval of a joint plan for the marketing of one or more classes of farm products within such territory. Section 19 of the new Act provides: 19. Ten or more interested producers may apply to the Board for the approval of a joint plan for the marketing in the Province of a farm product derived from a designated territory or intended for a specified purpose or a particular purchaser. It is clear that both these provisions relate to the marketing of milk only in the Province of Quebec. The position taken by the appellant is that the three orders of the Marketing Board are invalid because they enable it to set a price to be paid by the appellant for a product the major portion of which, after processing, will be used by it for export out of Quebec. This, it is contended, constitutes the regulation of trade and commerce within the meaning of s. 91(2) of the British North America Act, a field reserved to the Parliament of Canada. [....] It is now necessary to consider, in the light of these decisions, the validity of the three orders which are under attack in the present case. The first order, which created The Quebec Carnation Company Milk Producers' Board and empowered it to negotiate, on behalf of the milk producers, for the sale of their products to the appellant, is somewhat analogous to the creation of a collective bargaining agency in the field of labour relations. The purpose of the order was to regulate, on behalf of the particular group of Quebec producers, their trade with the appellant for the sale to it, in Quebec, of their milk. Its object was to improve their bargaining position. The Producers' Board then undertook, with the appellant, negotiations for the sale to it of that milk. The order provided a machinery whereby the price of milk could be determined by arbitration if 291

agreement could not be reached. In this respect it differs from most provincial legislation governing labour disputes, but there would seem to be no doubt that provincial labour legislation incorporating compulsory arbitration of disputes would be constitutional, unless objectionable on some other ground. The two subsequent orders of the Marketing Board, under attack, contained the decisions which it reached in determining the proper price to be paid to the producers for milk purchased by the appellant. Are these orders invalid because the milk purchased by the appellant was processed by it and, as to a major portion of its product, exported from the province? Because of that fact, do they constitute an attempt to regulate trade in matters of interprovincial concern? That the price determined by the orders may have a bearing upon the appellant's export trade is unquestionable. It affects the cost of doing business. But so, also, do labour costs affect the cost of doing business of any company which may be engaged in export trade and yet there would seem to be little doubt as to the power of a province to regulate wage rates payable within a province, save as to an undertaking falling within the exceptions listed in s. 92(10) of the British North America Act. It is not the possibility that these orders might "affect" the appellant's interprovincial trade which should determine their validity, but, rather, whether they were made "in relation to" the regulation of trade and commerce. This was a test applied, in another connection, by Duff J. (as he then was) in Gold Seal Limited v. Attorney-General for Alberta [(1921), 62 S.C.R. 424 at 460, 3 W.W.R. 710, 62 D.L.R. 62.]. Thus, as Kerwin C.J. said int he Ontario Reference, in the passage previously quoted: "once a statute aims at 'regelation of trade in matters of inter-provincial concern' it is beyond the competence of a Provincial Legislature." I am not prepared to agree that, in determining that aim, the fact that these orders may have some impact upon the appellant's interprovincial trade necessarily means that they constitute a regulation of trade and commerce within s. 91(2) and thus renders them invalid. The act of such impact is a matter which may be relevant in determining their true aim and purpose, but it is not conclusive. In the Lawson case, where the provincial legislation was found to be unconstitutional, the Committee created by the statute was enabled and purported to exercise a large measure of direct and immediate control over the movement of trade in commodities between a province and other provinces. That is not this case. On the other hand, in the Shannon case the regulatory statute was upheld, as it was confined to the regulation of transactions taking place wholly within the province. It was held that s. 91(2) was not applicable to the regulation for legitimate provincial purposes of particular trades or businesses confined to the province. 292

The view of the four judges in the Ontario Reference was that the fact that a transaction took place wholly within a province did not necessarily mean that it was thereby subject solely to provincial control. The regulation of some such transactions relating to products destined for interprovincial trade could constitute a regulation of interprovincial trade and beyond provincial control. While I agree with the view of the four judges in the Ontario Reference that a trade transaction, completed in a province, is not necessarily, by that fact alone, subject only to provincial control, I also hold the view that the fact that such a transaction incidentally has some effect upon a company engaged in interprovincial trade does not necessarily prevent its being subject to such control. I agree with the view of Abbott J., in the Ontario Reference, that each transaction and each regulation must be examined in relation to its own facts. In the present case, the orders under question were not, in my opinion, directed at the regulation of interprovincial trade. They did not purport directly to control or to restrict such trade. There was no evidence that, in fact, they did control or restrict it. The most that can be said of them is tat they had some effect upon the cost of doing business in Quebec of a company engaged in interprovincial trade, and that, by itself, is not sufficient to make them invalid. For these reasons, I would dismiss this appeal with costs. There should be no costs payable by or to the intervenants.

Manitoba (Attorney General) v. Burns Foods Ltd., 1975

[1975] 1 S.C.R. 494 Supreme Court of Canada Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence and Pigeon JJ. ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA The judgment of Fauteux C.J. and Abbott, Martland, Judson, Spence and Pigeon JJ. was delivered by PIGEON J.:-- This appeal is from a judgment of the Court of Appeal of Manitoba affirming a judgment of the Chief Justice of the Court of Queen's Bench granting an injunction against the appellants, Burns Foods Limited, Canada Packers Limited and Swift Canadian Co. Limited (the Packers), and dismissing their counter-claim. The injunction restrains the Packers from slaughtering hogs in Manitoba unless same have been purchased from the respondent Manitoba Hog Producers' Marketing Board (the Board). The Packers' counterclaim is for a declaration that The Natural Products Marketing Act, R.S.M. 1970, c. N20, as amended by 1971 (Man.), c. 67 and 1972 (Man.), c. 77, and Manitoba Reg. 180/71, Manitoba Reg. 4/72, Manitoba Reg. 97/72 and conditions of sale made pursuant to Manitoba

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Reg. 4/72 are invalid by reason of being ultra vires the Province of Manitoba. At the hearing in this Court, the Packers' attack was really pressed against Manitoba Reg. 97/72 only. The intervention of the Attorney General for Canada was limited to that point. On the other hand, the Attorneys General for Ontario, British Columbia, Alberta and Saskatchewan intervened to support the validity of all the regulations under attack. In 1971, The Natural Products Marketing Act of Manitoba (the Act) was amended so as to include in the definition of natural products live-stock raised, kept, prepared for slaughter, slaughtered or skinned within the province. At the end of the same year, Manitoba Reg. 180/71 established "The Manitoba Hog Producers' Marketing Plan". In this Plan "producer" is defined as follows: "producer" means any person who raises, keeps, prepares for slaughter or slaughters hogs within the province and includes the employer of any such person, a person who under any lease or agreement is entitled to a share of the hogs raised by any such person, and a person who takes possession of any hogs from any such person under any form of security for a debt; Following upon the establishment of the Plan, the Board made an order known as Manitoba Reg. 4/72, effective January 1, 1972. Section 2 of this order reads: 1. Except where he buys through the Producer Board, no processor shall buy or accept delivery of hogs which are subject to regulations by the Producer Board from a producer. In view of the definition of "producer" above quoted, this provision was inapplicable to hogs bought in Saskatchewan or in any other province, the persons raising hogs in a province other than Manitoba not being "producers". Even without that definition, this would not be construed as applicable to purchases from outside Manitoba. However, in a telegram sent to the Packers on January 7, 1972, the chairman of the Board, after quoting excerpts from the regulations, said: It has come to the attention of the Board of Directors of the Manitoba Hog Producers Marketing Board that, during the week ending January 7, 1972, hogs were slaughtered in this province which were not purchased through the Board. It is assumed that these hogs came from Saskatchewan. Please be advised that this procedure must cease forthwith. Under date July 17, 1972, the Board made an order, known as Manitoba Reg. 97/72, adding to Reg. 4/72 after s. 2: 2A. No Manitoba processor shall prepare hogs for slaughter in Manitoba or slaughter hogs in Manitoba unless same have been purchased from the producer board and where hogs have been brought into the province they shall, for the purpose of the Act, be deemed to

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be hogs produced in Manitoba and shall be subject to the same provisions of the Act and regulation as hogs produced in Manitoba. In a press release issued by the Board on the date of its application for the injunction, namely August 15, 1972, the factual situation was described as follows: PACKERS DEFY MANITOBA HOG BOARD ORDER At the beginning of this year the Manitoba Hog Producers' Marketing Board ruled that all hogs slaughtered in this province must be sold on the Board's teletype auction system. This involves about 25,000 hogs per week from Manitoba producers and about 1,000 each week from Saskatchewan. Recently the major packers questioned the Board's legal authority to stop them from buying additional hogs from outside the province on a "direct to plant" basis. In fact, during the last three weeks they purchased about 1,750 head contrary to the Regulations. In the Board's opinion this is a serious threat to the orderly marketing program that has been operating in the Province and have instructed their legal counsel to proceed with a request for an injunction from the Courts. Contrary to the thoughts expressed by Canada Packers, Swift Canadian and Burns Foods Ltd., that the Board's ruling is restricting interprovincial trade--the Board says definitely not. The Manitoba Board receives and sells all hogs shipped from Saskatchewan or any other province each week and these hogs are handled in exactly the same manner as hogs that are offered from Manitoba producers. The fact that 800 to 1,000 hogs of Saskatchewan origin have been sold each week since the beginning of this year, attests to this fact. The Board feels that if Manitoba packers are allowed to by-pass the teletype auction system of acquiring their supplies--the bargaining power of Manitoba producers is seriously jeopardized. [....] In my view, it is apparent that what the impugned regulations require the Packers to do with respect to hogs from Saskatchewan is to buy them from the Saskatchewan producer through the Manitoba Board. This is what the telegram and the press release say, it is clearly what the Board intended, and it is also what was meant to be required by the injunction order as appears from Tritschler's C.J.Q.B. reasons. The Board never had any intention of allowing the Packers to buy from themselves through the Board hogs purchased by them from producers in Saskatchewan. While the definition of "producer" may be wide enough to include a packer who has bought hogs, there is in the Marketing Plan (Regulation 180/71) a provision clearly designed to enable the Board to prevent the Packers from so doing. It is s. 10A(1):

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10A. (1) No producer shall in any fiscal year of the producer board, market more than five thousand hogs without a licence permitting him so to do, issued by the producer board. The effect of the Regulation under attack must, therefore, be taken to be that the Packers are prohibited from slaughtering in Manitoba hogs raised in Saskatchewan or in any other province, unless those hogs are purchased from the producer through the Board. It is true that this prohibition does not apply unless the hogs are slaughtered in Manitoba, but that is the only purpose for which they are bought by the Packers. At the hearing in this Court, the position taken by those who sought to support the validity of the Regulation was that the order under attack was made by the Board with the conscious realization that it would affect hogs brought from another province. The question then becomes whether, as an incident of its authority over the local matter of hog slaughter by the Packers in Manitoba, this province can regulate the buying of hogs by the Packers from producers in another province. As we have seen, the injunction is aimed at preventing the Packers from buying hogs in Saskatchewan, direct from the producer, for slaughter in Manitoba. Such acquisition is a contract made outside Manitoba. Of course, the parties could choose to make it in that province, but they would certainly choose to make it in Saskatchewan when desirous, as the Packers are, of avoiding subjection to the Manitoba Plan. However, if the order is valid, the conditions of the sale will be regulated by the Manitoba Plan, even when the Packers deal with the Saskatchewan producers in that province. Such a contract is clearly not within the legislative authority of the Province of Manitoba (Royal Bank of Canada v. The King [ [1913] A.C. 283]). Can it be brought in because, as Tritschler C.J.Q.B. puts it: "If the Manitoba processor could bypass the system, the Plan would be destroyed with great damage to the industry which has been built up . In my view, the answer to this question is to be found in the following sentence of Lord Atkin's judgment in the 1937 Natural Products Marketing Act case (Attorney-General for British Columbia v. Attorney-General for Canada [[1937] A.C. 377]) at p. 387: "Parliament cannot acquire jurisdiction to deal in the sweeping way in which these enactments operate with such local and provincial matters by legislating at the same time respecting external and inter-provincial trade and committing the regulation of external and interprovincial trade and the regulation of trade which is exclusively local and of traders and producers engaged in trade which is exclusively local to the same authority: (The King v. Eastern Terminal Elevator Co. [1925] Can. S.C.R. 434)." If the federal Parliament cannot regulate local trade because it would be more efficient to regulate it together with the extra-provincial trade, a fortiori a provincial Legislature cannot regulate interprovincial trade in a given product because this appears desirable for the effective control of intraprovincial trade.1 In other words, the direct regulation of interprovincial trade is of itself a matter outside the legislative authority of any province and it cannot be treated as an accessory of the local trade. This is not a case of subjecting all goods of a certain kind within a province to uniform regulations, such as the retail sale price (as in Home Oil Distributors Ltd. v. Attorney-General of British 296

Columbia et al. [ [1940] S.C.R. 444]). It is a case of directly regulating extra-provincial trade operations in their essential aspects namely, the price and all the other conditions of sale. In effect, the impugned Regulation does not really deal with goods already brought within the province. What it seeks to accomplish is to require that their acquisition from the producer in another province be made in accordance with the law of Manitoba, not with the law of the province of origin. It is true that it does not purport to prohibit the bringing in if that requirement is not complied with, but the same result is sought by providing that the goods cannot then be used for sole purpose for which they are brought in, namely immediate slaughter. Nothing that was said in any previous case supports the proposition that such direct interference with interprovincial trade may be effected by a provincial authority. This is not an insignificant interference. On the contrary, it is not denied that the interprovincial trade in hogs between Saskatchewan and Manitoba is substantial. It is no answer to say that there is no discrimination, not only because this is due to a policy decision subject to alteration at the will of the Board, but also because it is the substance of the interprovincial trade that is being regulated, not some accessory or unessential aspect. To make a comparison with the trucking industry, it is the equivalent of rate fixing for interprovincial transport as opposed to the setting of the speed limits. I cannot, therefore, accede to the argument submitted by Mr. Hilton that the restriction is valid because it is imposed in aid of the object to ensure a fair price for the sale of the local product. The decision in Shannon v. Lower Mainland Dairy Products Board [[1938] A.C. 708] is of no assistance because it is predicated on a finding "that the legislation in question is confined to regulating transactions that take place wholly within the Province". The situation here is totally unlike that which obtained in Brant Dairy Co. et al. v. Milk Commission of Ontario et al. [[1973] S.C.R. 131]. In that case, the challenge on constitutional grounds was dismissed because there was no evidence that the orders had any extra-provincial effect. They did require the processors to buy exclusively through the Board, but all the producers were within the province. Similarly, in Carnation Company Ltd. v. Quebec Agricultural Marketing Board et al. [ [1968] S.C.R. 238], all the producers were within the province in which the processing plant was operating. The basis of the attack was not that extra-provincial producers were affected, but that a large part of the plant's production was sold outside the province. From that point of view, the situation is much the same in the present case. It is conceded that twothirds of the Packers' production is sold outside Manitoba. However, in view of what was decided in the Carnation case, this was not the basis of the challenge on constitutional grounds. The Regulation was sought to be supported because it applies only to hogs brought within the province. The difficulty is that what the order in question does is really to prescribe the conditions under which the hogs may be brought in from outside and that is, in itself, interprovincial trade. It is not an incident of the operation of slaughter taking place within the province. It was also said that the pith and substance is not to erect any barrier against the free flow of trade but to stabilize the price of hogs in Manitoba. The difficulty is that such regulation by subjecting 297

the price of "imports" to the same regulations as local sales is, of itself, a regulation of the interprovincial trade. The fact that this is presently being done without the features of discrimination present in the Egg case (Attorney-General for Manitoba v. Manitoba Egg & Poultry Assoc. et al. [[1971] S.C.R. 689]) cannot make a real difference, nob only because discrimination could at any time be established at the discretion of the Board, but also because what is sought to be regulated in all its essential aspects is the trade in hogs between the Packers in Manitoba and hog producers in any other province. For those reasons, I would allow the appeal, set aside the judgments in the Courts below, dissolve the injunction, dismiss the action and allow the counterclaim to the extent of declaring Manitoba Regulation 97/72 null and void. The appellants are entitled to their costs throughout against Manitoba Hog Producers' Marketing Board but there should be no other order as to costs. Any right the appellants may have to apply to the Court of Queen's Bench of Manitoba for an order as to damages by reason of the undertaking given August 21, 1972, and the subsequently issued injunction are reserved. RITCHIE J. (dissenting):-- I am in agreement with the Court of Appeal of Manitoba that the impugned legislation is primarily directed to the slaughter of hogs within the province which is a local matter, and that it only affects interprovincial trade as an incident of a scheme for controlling local trade within the province and does not aim at the regulation of trade in matters of interprovincial concern. For these reasons I would dismiss this appeal with costs. Appeal allowed, RITCHIE J. dissenting.

Labatt Brewing Co. v. Canada, 1980

[1980] 1 S.C.R. 914 Supreme Court of Canada Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre JJ. ON APPEAL FROM THE FEDERAL COURT OF APPEAL The judgment of Martland, Dickson, Beetz and Estey JJ. was delivered by ESTEY J.:-- The appellant seeks a declaration that its product "Labatt's Special Lite" as labelled, packaged and sold "is not likely to be mistaken for a 'light beer' within the standards set out ..." in the regulations under the Food and Drugs Act, R.S.C. 1970, c. F-27 ("the Act"). The relevant facts are few. The product in question is one of the malt liquors described in regulations promulgated under the Act

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and has an alcohol content of 4 per cent. This product was introduced to the market in the provinces of British Columbia and Ontario under this label: Two issues arise by reason of the marketing of this product under the label set out above. Firstly, the appellant takes the position that this product when so advertised is not likely to be mistaken for a light beer within the applicable regulation. This regulation, being s. B.02.134 of the Food and Drug Regulations, C.R.C., c. 870, was enacted pursuant to s. 25(1) of the Act to which I will return shortly. Section 6 of the Act states as follows: Where a standard has been prescribed for a food, no person shall label, package, sell or advertise any article in such a manner that it is likely to be mistaken for such food, unless the article complies with the prescribed standard. The second position taken by the appellant is that s. 6 of the Act and regulation B.02.134 are ultra vires the Parliament of Canada, and to the extent that it authorizes such regulation, s. 25 is likewise ultra vires. [....] I turn now to the constitutional issue. The appellant challenges the constitutional validity of s. 6 and s. 25(1)(c) of the Food and Drugs Act and the regulations promulgated thereunder with reference to the production and sale of beer. Before embarking on a discussion of the constitutional considerations, let us examine the form and thrust of the Act and its regulations. Part I of the Act is entitled "Foods, Drugs, Cosmetics and Devices". Under the heading "Food" we find four sections creating offences such as the sale of harmful substances, adulterated food and food unfit for human consumption and food manufactured under unsanitary conditions. There is a prohibition against the labelling, packaging, selling or advertising of food in any manner that is false and misleading or deceptive; and there is a general provision applicable to the whole of Part I making it an offence to advertise food, drugs, cosmetics or devices to the general public as a treatment, preventative or cure for any disease. Then we come to s. 6 in the "Food" portion of Part I of the Act which has already been set out above and which was relevant to the first issue as well as to the constitutional question. For convenience, I repeat s. 6 which reads as follows: Where a standard has been prescribed for a food, no person shall label, package, sell or advertise any article in such a manner that it is likely to be mistaken for such food, unless the article complies with the prescribed standard. There then follow provisions with reference to drugs, cosmetics and devices. In each of these instances the statute prescribes a number of offences with reference to false labelling, manufacture under unsatisfactory conditions, sale of unsafe articles, and so on. Likewise in each segment under Part I we find a section comparable to s. 6, as for example s. 10 in the case of drugs. Part III of the Act deals

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with "Controlled Drugs" and establishes offences in connection with the trafficking in controlled drugs, possession of such drugs, and detailed provisions with reference to the prosecution charges under the statute, search and seizure, etc. Under this Part, regulations may be promulgated by the Governor-inCouncil with reference to the manufacture, sale, importation and other dealings with controlled drugs. Part IV deals in the same way with restricted drugs. In Part II of the statute, provision is made for the "administration and enforcement" of the Act, including the powers of inspectors, the power of forfeiture, the right to make analysis of substances. Section 25(1)(c) appears in this part and establishes the authority in the Governor-in-Council to pass regulations under the statute ... for carrying the purposes and provisions of this Act into effect, and, in particular, but not so as to restrict the generality of the foregoing ... (c) prescribing standards of composition, strength, potency, purity, quality or other property of any article of food, drug, cosmetic or device;

The regulatory authority under subs. (c) appears to extend to the four classes of goods or articles regulated under Part I which include "foods" with which we are here concerned. Under the authority of s. 25(1)(c), there has been produced an elaborate set of regulations dealing with the preparation, manufacture and sale of the four articles or commodities dealt with in Part I of the Act. We are here concerned principally with Part B of the Food and Drug Regulations, supra. Various regulations in this Part prescribe standards for a food, its composition, strength, potency, purity, quality or other property, and where a standard is so prescribed, the regulations require that such food shall contain only the ingredients included in the standard for the food and in prescribed proportions. In Division 2 of Part B, provision is made for alcoholic beverages. The threshold qualification for an alcoholic beverage is set at "1.2% or more alcohol by volume", and s. B.02.003 requires the display of the alcoholic content by volume on what is referred to as the "principal display panel". The part of the regulations pertaining to alcoholic beverages with which this proceeding is concerned commences under the heading "Malt Liquors" with regulation B.02.130, already reproduced above, which prescribes the nature of "beer", its alcoholic content, and permitted additives. The other malt liquors described by these regulations are ale, stout, porter, light beer, and malt liquor. The only difference between these various malt liquors appears to be the alcoholic content, and "the aroma, taste and character commonly attributed to" them. As we have seen, the alcoholic content for beer shall be not less than 2.6 per cent and not more than 5.5 per cent by volume, and in the case of light beer shall be not less than 1.2 per cent and not more than 2.5 per cent alcohol by volume. It may be observed that s. 6 was introduced into the Act in 1953 and s. 25(1)(c) was expanded at the same time to its present form. Prior to that time, the statute was concerned with the adulteration of food, misbranding, the offering of food or drugs for sale as treatment for specified diseases, and the correct labelling of articles of food which were mixtures, imitations or substitutes. There were, however, regulations pertaining to malt liquors prior to the 1953 statute, defining beer and light beer as two of six classifications of malt liquors. 300

The statute and its implementing regulations thus construct a detailed code governing the manufacture of malt liquors, the labels or display panels on the article so produced, and the name under which the end product shall be sold. Regulation B.01.042 illustrates the detailed reach of this regulatory pattern. B.01.042. Where a standard for a food is prescribed in this Part (a) (b) the food shall contain only the ingredients included in the standard for the food; each ingredient shall be incorporated in the food in a quantity within any limits prescribed for that ingredient; and if the standard includes an ingredient to be used as a food additive for a specified purpose, that ingredient shall be a food additive set out in one of the Tables to section B.16.100 for use as an additive to that food for that purpose.

(c)

On the other hand, there are some regulations which deal in precise terms with the adulteration of all foods. These regulations include lists of substances prohibited in the production of food. No challenge is made with respect to these regulations. What then is the constitutional basis for the enactment of the contested portions of this statute by Parliament? The possible origins of this sovereign power include the federal authority under s. 91 of the British North America Act in respect of criminal law, trade and commerce, and peace, order and good government. [....] The principles developed in the natural products marketing judgments only obliquely deal with the second branch of the Parsons description of trade and commerce, supra, and hence are not of direct application here. The impugned regulations in and under Food and Drugs Act are not concerned with the control and guidance of the flow of articles of commerce through the distribution channels, but rather with the production and local sale of the specified products of the brewing industry. There is no demonstration by the proponent of these isolated provisions in the Food and Drugs Act and its regulations of any interprovincial aspect of this industry. The labels in the record reveal that the appellant produces these beverages in all provinces but Quebec and Prince Edward Island. From the nature of the beverage, it is apparent, without demonstration, that transportation to distant markets would be expensive, and hence the local nature of the production operation. This distinction between the flow of commerce, and production and local sale, if I may say so with respect, is pointedly made by Pigeon J. in Reference Re Agricultural Products Marketing Act [ [1978] 2 S.C.R. 1198], at p. 1293: In my view, the control of production, whether agricultural or industrial, is prima facie a local matter, a matter of provincial jurisdiction. Egg farms, if I may use this expression to designate

301

the kind of factories in which feed is converted into eggs and fowl, are local undertakings subject to provincial jurisdiction under section 92(10) B.N.A. Act ... and at p. 1296 "Marketing" does not include production and, therefore, provincial control of production is prima facie valid. [....] In the result, the trade and commerce power has been rescued from near oblivion following the Citizens Insurance case, supra, by the extension or development of the obiter or afterthought of Sir Montague Smith in that case. The application of the power to this stage in our constitutional development finds illustration firstly in general regulation of an element of trade such as the regulation of federal incorporations. With respect to legislation relating to the support, control or regulation of the various levels or components in the marketing cycle of natural products, the provincial authority is prima facie qualified to legislate with reference to production (vide Pigeon J. in the Reference Re Agricultural Products Marketing Act, supra, at p. 1296), and the federal Parliament with reference to marketing in the international and interprovincial levels of trade. In between, the success or failure of the legislator depends upon whether the pith and substance or primary objective of the statute or regulation is related to the heads of power of the legislative authority in question. Incidental effect on the other legislative sphere will no longer necessarily doom the statute to failure. Several indicia of the proper tests have evolved. For example, if contractual rights within the province are the object of the proposed regulation, the province has the authority. On the other hand, if regulation of the flow in extraprovincial channels of trade is the object, then the federal statute will be valid. Between these spectrum ends, the shadings cannot be foretold in anything approaching a constitutional formula. The majority of the illustrated tests thus far encountered are largely in the distribution, and not the production, of farm products. Here, however, we are concerned with the proper regulatory authority in connection with the production process of a single industry and, to some extent, with the sale of its products, the latter being concerned largely with the use of labels or identification. Nowhere are the impugned statutory regulations or provisions concerned with the control or regulation of the extraprovincial distribution of these products or their movement through any channels of trade. On the contrary, their main purpose is the regulation of the brewing process itself by means of a "legal recipe", as counsel for the appellant put it. Indeed, if the industry is substantially local in character, as seems to be the case from the sparse record before the court (as noted above), the regulations are, in fact, confined to the regulation of a trade within a province. In the end, the effort of the respondent here is simply to build into these regulations a validity essentially founded upon the embryonic definition of the application of the trade and commerce heading in the Citizens Insurance case, supra. That observation and the subsequent references thereto are all predicated upon the requirement that the purported trade and commerce legislation affected

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industry and commerce at large or in a sweeping, general sense. In the context of the Food and Drugs Act, it follows that even if this statute were to cover a substantial portion of Canadian economic activity, one industry or trade at a time, by a varying array of regulations or trade codes applicable to each individual sector, there would not, in the result, be at law a regulation of trade and commerce in the sweeping general sense contemplated in the Citizens Insurance case, supra. That, in my view, is the heart and core of the problem confronting the respondent in this appeal. Thus the provisions regulating malt liquors relate either to a single industry or a sector thereof, while other regulations appear to concern themselves in a similar way with other individual industries; the former being condemned by the Citizens Insurance case, supra, and the latter does not rescue the malt liquor regulations by reason of the Board of Commerce case, supra. [....] Appeal allowed with costs, LASKIN C.J. and PIGEON and McINTYRE JJ. dissenting.

General Motors of Canada Ltd. v. City National Leasing Ltd., 1989

[1989] 1 S.C.R. 641 Supreme Court of Canada Present: Dickson C.J. and Beetz, McIntyre, Lamer, Le Dain *, La Forest and L'Heureux-Dubé JJ. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO * Le Dain J. took no part in the judgment. The judgment of the Court was delivered by 1 DICKSON C.J.:-- The principal issue in this appeal is the constitutional validity of s. 31.1 of the Combines Investigation Act, R.S.C. 1970, c. C-23. Section 31.1 creates a civil cause of action for certain infractions of the Combines Investigation Act. It is this fact which makes the section constitutionally suspect: a civil cause of action is within the domain of the provinces to create. The essential question raised by this appeal is whether s. 31.1 can, nevertheless, be upheld as constitutionally valid by virtue of its relationship with the Combines Investigation Act. Answering this question requires addressing two issues: first, is the Act valid under the federal trade and commerce power, expressed in s. 91(2) of the Constitution Act, 1867; and second, is s. 31.1 integrated with the Act in such a way that it too is intra vires under s. 91(2). 2 For the reasons which follow, I have found s. 31.1 to be intra vires the federal Parliament. In answering the two aforementioned issues, I have decided, first, that the Combines Investigation Act is valid under the federal trade and commerce power, in particular, it is valid under the "second branch" 303

of that power, the power over "general" trade and commerce. Second, I have found that s. 31.1 is constitutionally valid by virtue of being functionally related to the Act. Legislation 3 Section 31.1 of the Act reads as follows: 31.1 (1) Any person who has suffered loss or damage as a result of (a) (b) conduct that is contrary to any provision of Part V, or the failure of any person to comply with an order of the Commission or a court under this Act,

may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct or failed to comply with the order an amount equal to the loss or damage proved to have been suffered by him, together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section. 4 Among the offences covered by Part V of the Act, referred to in s. 31.1(1)(a) above, are those set out in s. 34(1) which reads: 34. (1) Every one engaged in a business who (a) is a party or privy to, or assists in, any sale that discriminates to his knowledge, directly or indirectly, against competitors of a purchaser of articles from him in that any discount, rebate, allowance, price concession or other advantage is granted to the purchaser over and above any discount, rebate, allowance, price concession or other advantage that, at the time the articles are sold to such purchaser, is available to such competitors in respect of a sale of articles of like quality and quantity; engages in a policy of selling products in any area of Canada at prices lower than those exacted by him elsewhere in Canada, having the effect or tendency of substantially lessening competition or eliminating a competitor in such part of Canada, or designed to have such effect; or engages in a policy of selling products at prices unreasonably low, having the effect or tendency of substantially lessening competition or eliminating a competitor, or designed to have such effect,

(b)

(c)

is guilty of an indictable offence and is liable to imprisonment for two years.

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5

The following two constitutional questions were stated by the Court: (a) Is the Combines Investigation Act, R.S.C. 1970, c. C-23 (the "Act"), as amended, either in whole or in part, within the legislative competence of the Parliament of Canada under s. 91(2) of the Constitution Act, 1867? Is section 31.1 of the Act within the legislative competence of the Parliament of Canada? I

(b)

Facts 6 General Motors of Canada Ltd. ("GM") manufactures automobiles and trucks. City National Leasing ("CNL") leases across Canada fleets of automobiles and trucks in competition with other national fleet leasing companies. CNL purchases the majority of its vehicles from franchised GM dealers, but does not purchase from GM directly. To finance purchases of GM vehicles between 1970 and 1980, CNL received interest rate support through a program offered by General Motors Acceptance Corporation ("GMAC"). CNL alleges that during that time GM, directly or indirectly, had been paying "preferential" interest rate support to competitors of CNL in respect of competitors' purchases of GM manufactured automobiles and trucks, in addition to the interest rate support available to CNL. It is further alleged that the exclusion of CNL from the preferential interest rate support program from 1970 to 1980 was a practice of price discrimination contrary to s. 34(1)(a) of the Act, giving CNL an action under s. 31.1. CNL claims that it lost profits equivalent to monies saved by its competitors, and that it is entitled to recover from GM damages equivalent to the lost profits and compound interest thereon. CNL also sued GM for breach of contract for damages arising after March 1980. [....] 18 To assess the claims made in this appeal it is necessary to begin by exploring the scope of s. 91(2) of the Constitution Act, 1867. IV The General Trade and Commerce Power 19 In Canadian National Transportation, supra, I had occasion to trace the history of s. 91(2) in the courts. It would be otiose to repeat that discussion here. For the purposes of this appeal it is sufficient to summarize the general principles that, in my view, have emerged from judicial consideration of s. 91(2) and which are relevant to the present appeal. 20 The leading case of Citizens' Insurance Company of Canada v. Parsons (1881), 7 App. Cas. 96, sets out the most frequently quoted statement of the scope of s. 91(2). Speaking for the Privy Council, Sir Montague Smith noted at p. 112 that if the words trade and commerce were given their ordinary meaning, s. 91(2) conceivably granted very wide-ranging powers to the federal government: 305

The words "regulation of trade and commerce," in their unlimited sense are sufficiently wide, if uncontrolled by the context and other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade with foreign governments, requiring the sanction of parliament, down to minute rules for regulating particular trades. To limit the breadth of a literal interpretation of s. 91(2), Sir Montague Smith settled upon the following construction, at p. 113: Construing therefore the words "regulation of trade and commerce" by the various aids to their interpretation above suggested, they would include political arrangements in regard to trade requiring the sanction of parliament, regulation in matters of inter-provincial concern, and it may be that they would include general regulation of trade affecting the whole dominion. 21 Sir Montague Smith continued, on the same page: Having taken this view of the present case, it becomes unnecessary to consider the question how far the general power to make regulations of trade and commerce, when competently exercised by the dominion parliament, might legally modify or affect property and civil rights in the provinces, or the legislative power of the provincial legislatures in relation to those subjects .... 22 In Canadian National Transportation, supra, at p. 258, I suggested that Parsons had established three important propositions with regard to the federal trade and commerce power: ... (i) it does not correspond to the literal meaning of the words "regulation of trade and commerce"; (ii) it includes not only arrangements with regard to international and interprovincial trade but "it may be that ... (it) would include general regulation of trade affecting the whole dominion"; (iii) it does not extend to regulating the contracts of a particular business or trade. 23 Since Parsons, the jurisprudence on s. 91(2) has largely been an elaboration on the boundaries of the two aspects or "branches" of federal power: (1) the power over international and interprovincial trade and commerce; and (2) the power over general trade and commerce affecting Canada as a whole. The first branch has been the subject of considerable constitutional challenge and judicial scrutiny. The second branch, in contrast, has remained largely unexplored, terra incognita. In this appeal, however, it is under this second branch of s. 91(2) that CNL and the Attorney General of Canada seek to uphold s. 31.1. 24 So far as I can gather, legislation has been upheld under the second branch by a final appellate court on only two occasions. In 1937 the Privy Council upheld a federal scheme creating a national 306

trade mark to be used in conjunction with federally established commodity standards under the general trade and commerce power: Attorney-General for Ontario v. Attorney-General of Canada (Canada Standards Trade Mark), [1937] A.C. 405. (But compare: Dominion Stores Ltd. v. The Queen, [1980] 1 S.C.R. 844, where this Court struck down federal products standards legislation.) The second occasion was in John Deere Plow Co. v. Wharton, [1915] A.C. 330, where the Privy Council located the regulation of federally incorporated companies within the general branch of s. 91(2), although they also upheld the legislation under the "peace, order and good government" power. 25 Aside from these two cases, at least until of late, the general trade and commerce power met with consistent rejection by the courts. Professor Hogg in the second edition of his work Constitutional Law of Canada, at pp. 447-48, notes that the courts refused to accept it as the basis for regulation of the insurance industry in the Attorney-General for Canada v. Attorney-General for Alberta (Insurance Reference), [1916] 1 A.C. 588; prices and profits in In re the Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919 (the Board of Commerce case), [1922] 1 A.C. 191; labour relations in Toronto Electric Commissioners v. Snider, [1925] A.C. 396; marketing in The King v. Eastern Terminal Elevator Co., [1925] S.C.R. 434, and Attorney-General for British Columbia v. Attorney-General for Canada (Natural Products Marketing Reference), [1937] A.C. 377; and the prohibition of margarine in Canadian Federation of Agriculture v. Attorney-General for Quebec (The Margarine Reference), [1951] A.C. 179. 26 The treatment of the general trade and commerce power in the cases just mentioned was no doubt strongly influenced by earlier Privy Council decisions on s. 91(2) and in particular what Anglin C.J. referred to in The King v. Eastern Terminal Elevator Co., supra, at p. 441, as "... their Lordships' emphatic and reiterated allocation of 'the regulation of trade and commerce' to ... [a] subordinate and wholly auxiliary function ...." As Professor McDonald observed in his article "Constitutional Aspects of Canadian Anti-Combines Law Enforcement" (1969), 47 Can. Bar Rev. 161, at p. 189: The British North America Act was framed with a greater interest in central control than motivated the constitutional fathers to the south. Reaction in the founding provinces to the consequences of decentralized control in the United States has been well documented. The broad and unqualified language of section 91(2) reflected the basic interest that strength from economic unity replace the floundering provincial economies. Yet, as the American courts broadened their commerce clause until it meant essentially what the Fathers of Confederation had sought for Canada, so have the Privy Council and the Canadian courts reacted against the hopes of the framers of their constitution and have decentralized commercial control. At least until relatively recently the history of interpretation of the trade and commerce power has almost uniformly reinforced the federal paralysis which resulted from a series of Privy Council decisions in the years 1881-1896. The predominant view was that section 91(2) did not in any way go to either general commerce, contracts, particular trades or occupations,

307

or commodities so far as those things might be intraprovincial. The test for the local nature of a transaction was abstractly legal, divorced from commercial effect. 27 Since 1949 and the abolition of appeals to the Privy Council, the trade and commerce power has, I think it fair to say, enjoyed an enhanced importance in such cases as Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626, upholding the validity of the federal Canadian Wheat Board Act; The Queen v. Klassen (1959), 20 D.L.R. (2d) 406 (Man. C.A.), upholding the application of the Canadian Wheat Board Act to intraprovincial transactions; and Caloil Inc. v. Attorney General of Canada, [1971] S.C.R. 543, upholding a federal scheme regulating the movement of imported gasoline. See also Reference respecting the Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198. 28 In examining cases which have considered s. 91(2), it is evident that courts have been sensitive to the need to reconcile the general trade and commerce power of the federal government with the provincial power over property and civil rights. Balancing has not been easy. Following the initial articulation of the scope of the general trade and commerce power in Parsons, supra, the Privy Council briefly adopted what might be regarded as an overly inclusive interpretation of the power in John Deere Plow Co. v. Wharton, supra, before retreating to an overly restrictive stance to its interpretation in the Board of Commerce, supra, case. In Wharton, Viscount Haldane, at p. 340, speaking of federallyincorporated companies, sketched in broad terms the federal power to regulate trade and commerce under the second branch of Parsons: ... if it be established that the Dominion Parliament can create such companies, then it becomes a question of general interest throughout the Dominion in what fashion they should be permitted to trade. [Emphasis added.] 29 In contrast, in the Board of Commerce case, the Privy Council rejected the trade and commerce power (without distinguishing between the two branches) as the basis for anti-combines legislation, holding that the trade and commerce power had no independent content and could only be invoked as ancillary to other federal powers. This view of the trade and commerce power was rejected some nine years later by the Privy Council in Proprietary Articles Trade Association, supra, in the passage quoted earlier. 30 With respect, in my view, neither the position articulated in Wharton nor that advanced in the Board of Commerce case correctly assesses the balance to be struck between ss. 91(2) and 92(13). Wharton is clearly overly expansive, sweeping all general economic issues into the grasp of s. 91(2). On the other hand, the residual interpretation articulated in the Board of Commerce case fails to breathe life into the trade and commerce power and fails to recognize that provincial powers are a substraction from the federal powers. The true balance between property and civil rights and the regulation of trade and commerce must lie somewhere between an all pervasive interpretation of s. 91(2) and an interpretation that renders the general trade and commerce power to all intents vapid and meaningless.

308

31 This Court took the first step towards delineating more specific principles of validity for legislation enacted under the general trade and commerce power in Vapor Canada, supra. In that case, s. 7(e) of the Trade Marks Act, R.S.C. 1970, c. T-10, was challenged as ultra vires Parliament. Section 7 prohibited certain commercial practices, including the making of false and misleading statements to discredit a competitor, passing off goods or services, and making use of false descriptions likely to mislead the public, under the general heading of unfair competition. The impugned subsection was a general catch-all provision, unrelated to the rest of the statute, which prohibited a person from doing "any other act" or adopting "any other business practice contrary to honest industrial or commercial usage in Canada". The respondent, Vapor Canada Ltd., supported by the Attorney General of Canada, argued that s. 7(e) could be sustained as legislation regulating general trade and commerce under s. 91(2). 32 The Court struck down the provision as ultra vires. Chief Justice Laskin, speaking for five members of the Court, proposed three hallmarks of validity for legislation under the second branch of the trade and commerce power. First, the impugned legislation must be part of a general regulatory scheme. Second, the scheme must be monitored by the continuing oversight of a regulatory agency. Third, the legislation must be concerned with trade as a whole rather than with a particular industry. Each of these requirements is evidence of a concern that federal authority under the second branch of the trade and commerce power does not encroach on provincial jurisdiction. By limiting the means which federal legislators may employ to that of a regulatory scheme overseen by a regulatory agency, and by limiting the object of federal legislation to trade as a whole, these requirements attempt to maintain a delicate balance between federal and provincial power. On the basis of these criteria, Laskin C.J. then rejected the general trade and commerce power as the constitutional foundation for s. 7(e). 33 Three members of the Court affirmed the Vapor Canada criteria in Canadian National Transportation. At issue in Canadian National Transportation was the authority of the Attorney General of Canada to conduct prosecutions under the Combines Investigation Act. Four members of the Court held that provincial authority over the administration of justice in s. 92(14) of the Constitution Act, 1867, did not preclude the federal government from conducting prosecutions of criminal offences. I was of the view that s. 92(14) did preclude the federal government from prosecuting criminal offences -- unless the offences could be upheld under a head of power other than s. 91(27). I then took the further position, in which Beetz and Lamer JJ. agreed in substance, that the section could be sustained as legislation relating to the general trade and commerce power and thus the federal government was competent to prosecute a violation of s. 32(1) of the Combines Investigation Act. 34 In reaching the conclusion that s. 32(1)(c) of the Combines Investigation Act was within the scope of the general trade and commerce power, and writing for the minority of the Court, I adopted Laskin C.J.'s three criteria in Vapor Canada, supra, but added two factors that I considered indicia of the valid exercise of the general trade and commerce power: (i) the legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting; and (ii) the failure to

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include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country. These two requirements, like Laskin C.J.'s three criteria, serve to ensure that federal legislation does not upset the balance of power between federal and provincial governments. In total, the five factors provide a preliminary check-list of characteristics, the presence of which in legislation is an indication of validity under the trade and commerce power. These indicia do not, however, represent an exhaustive list of traits that will tend to characterize general trade and commerce legislation. Nor is the presence or absence of any of these five criteria necessarily determinative. As noted in Canadian National Transportation, supra, at p. 268: The above does not purport to be an exhaustive list, nor is the presence of any or all of these indicia necessarily decisive. The proper approach to the characterization is still the one suggested in Parsons, a careful case by case assessment. Nevertheless, the presence of such factors does at least make it far more probable that what is being addressed in a federal enactment is genuinely a national economic concern and not just a collection of local ones. On any occasion where the general trade and commerce power is advanced as a ground of constitutional validity, a careful case by case analysis remains appropriate. The five factors articulated in Canadian National Transportation merely represent a principled way to begin the difficult task of distinguishing between matters relating to trade and commerce and those of a more local nature. V Approach to Determining Constitutionality 35 Although a majority of this Court has never pronounced upon the validity of the Combines Investigation Act as a whole under the second branch of Parsons, lower courts have upheld sections of the Act, including s. 31.1, under the general trade and commerce power. In R. v. Hoffman-La Roche Ltd. (Nos. 1 and 2) (1981), 33 O.R. (2d) 694, the Ontario Court of Appeal (Martin J.A., Lacourcière and Weatherston JJ.A. concurring) affirmed the decision of Linden J. in the Ontario High Court of Justice (1980), 28 O.R. (2d) 164, and upheld s. 34(1)(c) of the Combines Investigation Act, which prohibits selling articles at unreasonably low prices, as legislation regulating general trade and commerce. In Quebec, the Superior Court declared s. 37.1 of the Act making it an offence to sell a product in excess of the advertised price valid under the second branch of s. 91(2) in R. v. Miracle Mart Inc. (1982), 68 C.C.C. (2d) 242. Section 31.4, prohibiting tied selling practices, was upheld under the general trade and commerce power by the Federal Court of Appeal in BBM Bureau of Measurement v. Director of Investigation and Research, [1985] 1 F.C. 173. 36 Section 31.1, in issue in this appeal, has been held ultra vires the Parliament of Canada by J. Holland J. in Seiko Time Canada Ltd. v. Consumers Distributing Co. (1980), 29 O.R. (2d) 221, at p. 250 (the Ontario Court of Appeal dismissed an appeal, though stating that the Court should not be taken as agreeing with the trial judge that s. 31.1 was invalid ((1981), 34 O.R. (2d) 481), and by Marceau J. in Rocois Construction Inc. v. Quebec Ready Mix Inc., [1980] 1 F.C. 184. The subsection has been upheld, 310

however, by the Alberta Court of Queen's Bench in Henuset Bros. Ltd. v. Syncrude Canada Ltd. (1980), 114 D.L.R. (3d) 300, by the Federal Court of Appeal in Attorney General of Canada v. Québec Ready Mix Inc., [1985] 2 F.C. 40, by the Manitoba Court of Queen's Bench in Westfair Foods Ltd. v. Lippens Inc., [1987] 6 W.W.R. 629, and by the Court of Appeal of Ontario in the instant case. 37 With the exception of R. v. Hoffman-La Roche, in each of the cases mentioned the constitutional analysis focussed on the impugned section of the Combines Investigation Act and not on the Act as a whole. In R. v. Hoffman-La Roche, Martin J.A., speaking for the court, held that the proper approach in determining whether s. 34(1)(c) could be sustained under the general power to regulate trade and commerce, was to characterize the statute as a whole. 38 In Canadian National Transportation, supra, I considered the relevant approach for determining the constitutional validity of a section of the Combines Investigation Act under the general trade and commerce power at p. 270: It is obvious at the outset that a constitutionally invalid provision will not be saved by being put into an otherwise valid statute, even if the statute comprises a regulatory scheme under the general trade and commerce branch of s. 91(2). The correct approach, where there is some doubt that the impugned provision has the same constitutional characterization as the Act in which it is found, is to start with the challenged section rather than with a demonstration of the validity of the statute as a whole. I do not think, however, this means that the section in question must be read in isolation. If the claim to constitutional validity is based on the contention that the impugned provision is part of a regulatory scheme it would seem necessary to read it in its context. If it can in fact be seen as part of such a scheme, attention will then shift to the constitutionality of the scheme as a whole. The conclusion was then reached, on the basis of the above analysis, that s. 32(1)(c) was not an isolated provision but part of a regulatory scheme. 39 The approach just outlined was essentially that suggested by Laskin C.J. in Vapor Canada, supra, in the context of s. 7(e) of the Trade Marks Act (at p. 159): Since s. 7(e) is not a trade mark provision, its inclusion in the Trade Marks Act does not stamp it with validity merely because that Act in its main provisions is quantitatively unchallenged. I come back to the question whether s. 7, and particularly s. 7(e), can stand as part of the scheme of the Trade Marks Act and other related federal legislation. If it can stand alone, it needs no other support; if not, it may take on a valid constitutional cast by the context and association in which it is fixed as complementary provision [sic] serving to reinforce other admittedly valid provisions. [Emphasis added.] 40 In this appeal, two basic approaches to determining the constitutional validity of s. 31.1 were argued before the Court. The appellant and most of the provincial Attorneys General advocated, as the 311

first step, concentrating on the validity of the impugned section. If the impugned provision taken alone could not be said to fall within the general trade and commerce power, the focus of analysis would broaden to encompass the provision within its statutory context. The Attorneys General of Alberta and British Columbia took the position that considering the legislative context would not mean considering the entire Combines Investigation Act. They went so far as to contend that the constitutional validity of s. 31.1 could be determined without pronouncing on the validity of the Combines Investigation Act as a whole. The respondent adopted the same approach as the appellant. In the respondent's submission, however, s. 31.1 could be sustained under the trade and commerce power both when viewed in isolation and when considered in the legislative context of the Combines Investigation Act. The respondent advanced the position that the entire Combines Investigation Act constituted a valid exercise of the general trade and commerce power. In contrast to the approach adopted by the parties and the other interveners, the Attorney General of Canada maintained that the constitutional validity of s. 31.1 could only be assessed after pronouncing on the validity of the Combines Investigation Act as a whole. The Attorney General of Canada proposed analyzing the legislative framework established by the Combines Investigation Act before narrowing the analytical focus to the impugned provision on its own. 41 In my view, in circumstances such as exist in the case at bar, it will normally be necessary to consider both the impugned provision and the Act as a whole (or a significant part of it) when undertaking a constitutional analysis. This approach coheres with that undertaken in Canadian National Transportation, supra, and Vapor Canada, supra. The first step should be to consider whether and to what extent the impugned provision can be characterized as intruding into provincial powers. If it cannot be characterized as intruding at all, i.e., if in its pith and substance the provision is federal law, and if the act to which it is attached is constitutionally valid (or if the provision is severable or if it is attached to a severable and constitutionally valid part of the act) then the investigation need go no further. In that situation both the provision and the act are constitutionally unimpeachable. If, as may occur in some instances, the impugned provision is found to be constitutionally unimpeachable while the act containing it is not, then the act must be assessed on it own. In these instances, it is clear that the claim of invalidity should originally have been made against the act and not against the particular provision. In most cases like the present, however, it will be concluded that the impugned provision can be characterized, prima facie, as intruding to some extent on provincial powers: the question is to what extent. I emphasize that in answering this initial question the court is considering the provision on its own and not assessing the act; thus the answer it reaches does not provide a conclusion with respect to the ultimate constitutional validity of the provision. The purpose is merely to ascertain the degree to which the provision could be said to intrude on provincial powers, so that this intrusion can be weighed in light of the possible justification for the section. 42 Such a justification will result from the impugned provision's relationship to valid legislation. Thus the next step in the process is to ascertain the existence of valid legislation. In considering cases argued under the general trade and commerce power, such as the present, this step involves 312

ascertaining whether the act, or a severable part of the act which includes the impugned provision, contains a regulatory scheme. The presence of a scheme of legislation is one of the most basic characteristics, although not a sine qua non, of valid trade and commerce legislation. Most provisions upheld under the second branch of s. 91(2) will be connected to a regulatory scheme. In cases where a regulatory scheme is not found the court will then have to consider whether the legislation to which the provision is attached can nonetheless be supported by virtue of the existence of the other requirements for a valid exercise of the general trade and commerce power. 43 A regulatory scheme may be found in only a part of the act in question, if that part can stand alone, or it may found in the entire act. The portion of the statute necessary to establish the existence of a regulatory scheme will not always be easy to discern. In those instances where a challenged provision, taken alone, comprehends a complete regulatory mechanism, the provision itself constitutes the appropriate starting point. In other cases, it will be necessary to examine the entire statute before a regulatory scheme may be identified. Once the presence of a regulatory scheme has been shown it will be necessary, using the factors outlined in Vapor Canada, supra, and Canadian National Transportation, supra, to determine its constitutional validity. Only after this has been done should the court turn to more careful consideration of the relationship between the particular impugned provision and the scheme. 44 The final question is whether the provision can be constitutionally justified by reason of its connection with valid legislation. As Laskin C.J. remarked in Vapor Canada, supra, inclusion of an invalid provision in a valid statute does not necessarily stamp the provision with validity. Here the court must focus on the relationship between the valid legislation and the impugned provision. Answering the question first requires deciding what test of "fit" is appropriate for such a determination. By "fit" I refer to how well the provision is integrated into the scheme of the legislation and how important it is for the efficacy of the legislation. The same test will not be appropriate in all circumstances. In arriving at the correct standard the court must consider the degree to which the provision intrudes on provincial powers. The case law, to which I turn below, shows that in certain circumstances a stricter requirement is in order, while in others, a looser test is acceptable. For example, if the impugned provision only encroaches marginally on provincial powers, then a "functional" relationship may be sufficient to justify the provision. Alternatively, if the impugned provision is highly intrusive vis-à-vis provincial powers then a stricter test is appropriate. A careful case by case assessment of the proper test is the best approach. 45 In determining the proper test it should be remembered that in a federal system it is inevitable that, in pursuing valid objectives, the legislation of each level of government will impact occasionally on the sphere of power of the other level of government; overlap of legislation is to be expected and accommodated in a federal state. Thus a certain degree of judicial restraint in proposing strict tests which will result in striking down such legislation is appropriate. I reiterate what I said on this general

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theme (although in a slightly different context) in OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, at p. 18: The history of Canadian constitutional law has been to allow for a fair amount of interplay and indeed overlap between federal and provincial powers. It is true that doctrines like interjurisdictional and Crown immunity and concepts like "watertight compartments" qualify the extent of that interplay. But it must be recognized that these doctrines and concepts have not been the dominant tide of constitutional doctrines: rather they have been an undertow against the strong pull of pith and substance, the aspect doctrine and, in recent years, a very restrained approach to concurrency and paramountcy issues. The above comments also emphasize that the question in this appeal of how far federal legislation may validly impinge on provincial powers is one part of the general notion of the "pith and substance" of legislation; i.e., the doctrine that a law which is federal in its true nature will be upheld even if it affects matters which appear to be a proper subject for provincial legislation (and vice versa). On page 334 of his book Constitutional Law of Canada (2nd ed. 1985), Professor Hogg explains this in the following way: The pith and substance doctrine enables a law that is classified as "in relation to" a matter within the competence of the enacting body to have incidental or ancillary effects on matters outside the competence of the enacting body. I emphasize that these comments should not be seen as altering the balance of constitutional powers. Both provincial and federal governments have equal ability to legislate in ways that may incidentally affect the other government's sphere of power. I quote from Professor Hogg again, where at p. 336 he states: "I think it is plain both on principle and on authority that the provincial enumerated powers have exactly the same capacity as the federal enumerated powers to 'affect' matters allocated to the other level of government." 46 In the present appeal, the appellant focusses its attack on a particular section of the Act. The issue is not whether the Act as a whole is rendered ultra vires because it reaches too far, but whether a particular provision is sufficiently integrated into the Act to sustain its constitutionality. In numerous cases courts have considered the nature of the relationship which is required, between a provision which encroaches on provincial jurisdiction and a valid statute, for the provision to be upheld. In different contexts courts have set down slightly different requirements, viz.: "rational and functional connection" in Papp v. Papp, [1970] 1 O.R. 331; R. v. Zelensky, [1978] 2 S.C.R. 940, and Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; "ancillary", "necessarily incidental" and "truly necessary" in the Regional Municipality of Peel v. MacKenzie, supra; "intimate connection", "an integral part" and "necessarily incidental" in Northern Telecom Ltd v. Communications Workers of Canada, [1980] 1 S.C.R. 115; "integral part" in Clark v. Canadian National Railway Co., [1988] 2 S.C.R. 680; "a valid constitutional cast by the context and association in which it is fixed as a complementary provision" in

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Vapor Canada, supra; and "truly necessary" in R. v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695. I believe the approach I have outlined is consistent with the results of this jurisprudence. These cases are best understood as setting out the proper test for the particular context in issue, rather than attempting to articulate a test of general application with reference to all contexts. Thus the tests they set out are not identical. As the seriousness of the encroachment on provincial powers varies, so does the test required to ensure that an appropriate constitutional balance is maintained. In surveying past jurisprudence it is to be expected that some example of patterns between the appropriate test of fit, and the head of power under which the federal legislation is valid, will be found. Such patterns exist not only because of a possible degree of similarity between the federal legislation which falls under any one head of power, but also for the reason that certain federal heads of power, for example, s. 92(10), are narrow and distinct powers which relate to particular works and undertakings and are thus quite susceptible to having provisions "tacked-on" to legislation which is validated under them, while other federal heads of power, for example, trade and commerce, are broad and therefore less likely to give rise to highly intrusive provisions. 47 The steps in the analysis may be summarized as follows: First, the court must determine whether the impugned provision can be viewed as intruding on provincial powers, and if so to what extent (if it does not intrude, then the only possible issue is the validity of the act). Second, the court must establish whether the act (or a severable part of it) is valid; in cases under the second branch of s. 91(2) this will normally involve finding the presence of a regulatory scheme and then ascertaining whether that scheme meets the requirements articulated in Vapor Canada, supra, and in Canadian National Transportation, supra. If the scheme is not valid, that is the end of the inquiry. If the scheme of regulation is declared valid, the court must then determine whether the impugned provision is sufficiently integrated with the scheme that it can be upheld by virtue of that relationship. This requires considering the seriousness of the encroachment on provincial powers, in order to decide on the proper standard for such a relationship. If the provision passes this integration test, it is intra vires Parliament as an exercise of the general trade and commerce power. If the provision is not sufficiently integrated into the scheme of regulation, it cannot be sustained under the second branch of s. 91(2). I note that in certain cases it may be possible to dispense with some of the aforementioned steps if a clear answer to one of them will be dispositive of the issue. For example, if the provision in question has no relation to the regulatory scheme then the question of its validity may be quickly answered on that ground alone. The approach taken in a number of past cases is more easily understood if this possibility is recognized. VI Does Section 31.1 Encroach on Provincial Powers? 48 The first step, therefore, in assessing the validity of s. 31.1 of the Combines Investigation Act is to determine whether the impugned provision can be seen as encroaching on provincial powers, and if so, to what extent. As section 31.1 creates a civil right of action it is not difficult to conclude that the 315

provision does, on its face, appear to encroach on provincial power to some extent. The creation of civil actions is generally a matter within provincial jurisdiction under s. 92(13) of the Constitution Act, 1867. This provincial power over civil rights is a significant power and one that is not lightly encroached upon. In assessing the seriousness of this encroachment, however, three facts must be taken into consideration. The first is that s. 31.1 is only a remedial provision; its purpose is to help enforce the substantive aspects of the Act, but it is not in itself a substantive part of the Act. By their nature, remedial provisions are typically less intrusive vis-à-vis provincial powers. The second important fact is the limited scope of the action. Section 31.1 does not create a general cause of action; its application is carefully limited by the provisions of the Act. The third relevant fact is that it is well-established that the federal government is not constitutionally precluded from creating rights of civil action where such measures may be shown to be warranted. This Court has sustained federally-created civil actions in a variety of contexts: see Nykorak v. Attorney General of Canada, [1962] S.C.R. 331 (allowing the federal Crown to sue a private party for the loss of services of a member of the armed forces); Jackson and Jackson, [1973] S.C.R. 205; Zacks v. Zacks, [1973] S.C.R. 891 (upholding the corollary relief provisions of the Divorce Act respecting alimony, maintenance or custody); and Multiple Access Ltd. v. McCutcheon, supra (upholding a civil remedy against directors and officers of federally incorporated companies who engaged in insider trading). In the last mentioned case, at pages 182-83, the following passage, adopted by six of the seven members of the Court, appears: One reservation with respect to the impugned sections of the federal act may be in the imposition of civil liability in s. 100.4(1). Does this imposition of civil liability in a federal statute so invade the provincial domain as to render the sections imposing liability ultra vires? This, in essence, was the argument of the appellants. But as Professors Anisman and Hogg point out: "Judicial decisions concerning a number of disparate matters such as federal elections, railways, federal corporations and even divorce have upheld Parliament's jurisdiction to provide civil relief in order to effectuate its legislative policies" ("Constitutional Aspects of Federal Securities Legislation" in Proposals for a Securities Market Law for Canada (1979), vol. 3, chap. III, at p. 192). In my opinion, ss. 100.4 and 100.5 have a general corporate purpose and a "rational, functional connection" with company law. The sections in my view are intra vires the Parliament of Canada. 49 It is clear that the inclusion of a private right of action in a federal enactment is not constitutionally fatal. The following excerpt from p. 415 of Cushing v. Dupuy (1880), 5 App. Cas. 409, a case cited by Sir Montague Smith at p. 113 in Parsons, supra, is apposite: It was contended for the Appellant that the provisions of the Insolvency Act interfered with property and civil rights, and was therefore ultra vires. This objection was very faintly urged .... ...

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It would be impossible to advance a step in the construction of a scheme for the administration of insolvent estates without interfering with and modifying some of the ordinary rights of property, and other civil rights, nor without providing some mode of special procedure for the vesting, realisation, and distribution of the estate, and the settlement of the liabilities of the insolvent. In sum, the impugned provision encroaches on an important provincial power; however, the provision is a remedial one; federal encroachment in this manner is not unprecedented and, in this case; encroachment has been limited by the restrictions of the Act. VII The Presence of a Regulatory Scheme in the Combines Investigation Act 50 The second step in determining the validity of s. 31.1 is to establish whether the Act contains a regulatory scheme. The presence of a well-orchestrated scheme of economic regulation is immediately apparent on examination of the Combines Investigation Act. The existence of a regulatory scheme is in evidence throughout the entire Act. 51 The Combines Investigation Act is divided into eight parts. Part I creates the Director of Investigation and Research, whose role is to investigate the possibility that companies are engaging in certain forms of anti-competitive conduct specifically proscribed by later parts of the Act. The Director has the power to require the Restrictive Trade Practices Commission, created by Part II of the Act, to conduct hearings into suspected violations of the Act. The Director is also in charge of enforcing the criminal provisions of the Act (Part V) by referring the matter to the Attorney General of Canada, and of enforcing the provisions relating to the civil violations of the Act by the exclusive right to apply to the Restrictive Trade Practices Commission for a remedial order (Part IV.1). 52 Part II establishes the Restrictive Trade Practices Commission. The role of the Commission is to conduct hearings into alleged violations of the criminal provisions of the Act, upon request of the Director. At the conclusion of the proceedings, the Commission is required to submit a written report to the Minister of Consumer and Corporate Affairs. The report must include an appraisal of the effect on the public interest of arrangements and practices disclosed in the evidence as well as recommendations on potential remedies. Part III contains general provisions regarding the conduct of inquiries and proceedings and the remuneration of staff. 53 Parts IV and IV.1 contain the remedial provisions of the Combines Investigation Act. Part IV, entitled Special Remedies, is, as its name implies, a list of remedies for anti-competitive conduct defined in the Act, including the reduction or removal of customs duties (s. 28), orders of the Federal Court to prevent the use of patents as a method of restraining trade (s. 29), interim injunctions against conduct proscribed under Part V of the Act (s. 29.1), prohibition orders on repetition of conduct where a person has been convicted of an offence under Part V (s. 30), and the civil damages action at issue in 317

this appeal (s. 31.1). Part IV.1 of the Act is entitled Matters Reviewable by the Commission. It grants the Commission the authority to issue remedial orders against a number of trade practices including exclusive dealing, market restriction and tied selling. 54 The penal provisions of the Act are enumerated in Parts V and VI. Part V proscribes as criminal certain practices including conspiracies to lessen competition (s. 32), bid-rigging (s. 32.2), assisting in the formation of a merger or monopoly (s. 33), illegal trade practices (s. 34), misleading advertising (s. 36), false representations of product performance tests and testimonials (s. 36.1) double ticketing (s. 36.2), and pyramid selling (s. 36.3). Part VI of the Act creates a number of offences for obstructing or failing to comply with an inquiry and establishes the enforcement procedure for the criminal provisions of the Act. Finally, Part VII contains general provisions of the investigation of monopolistic situations. 55 From this overview of the Combines Investigation Act I have no difficulty in concluding that the Act as a whole embodies a complex scheme of economic regulation. The purpose of the Act is to eliminate activities that reduce competition in the market-place. The entire Act is geared to achieving this objective. The Act identifies and defines anti-competitive conduct. It establishes an investigatory mechanism for revealing prohibited activities and provides an extensive range of criminal and administrative redress against companies engaging in behaviour that tends to reduce competition. In my view, these three components, elucidation of prohibited conduct, creation of an investigatory procedure, and the establishment of a remedial mechanism, constitute a well-integrated scheme of regulation designed to discourage forms of commercial behaviour viewed as detrimental to Canada and the Canadian economy. VIII The Validity of the Regulatory Scheme 56 Having discerned the presence of a regulatory scheme in the Combines Investigation Act, it is necessary to consider the validity of the scheme under the general trade and commerce power in light of the criteria established in Canadian National Transportation, supra. Four criteria remain to be examined: (1) whether the regulatory scheme operates under the oversight of an agency, (2) whether the Act is concerned with trade in general, (3) whether the provinces would be constitutionally capable of enacting combines legislation, and finally, (4) whether the failure to include one or more provinces or localities would jeopardize the successful operation of the Combines Investigation Act. 57 The foregoing review of the Combines Investigation Act leaves no doubt that the scheme regulating anti-competitive activities operates under the watchful gaze of a regulatory agency. The regulatory mechanism is carefully controlled by the Director of Investigation and Research and to a lesser degree by the Restrictive Trade Practices Commission. The authority to launch an inquiry into suspected anti-competitive conduct lies with the Director. The Director is required to initiate an inquiry whenever there is reason to believe either that a person has failed to comply with an order of the Commission or where an offence proscribed by the Act has been or is about to be committed, 318

whenever the Minister of Consumer and Corporate Affairs so directs, and on application of six residents of Canada over the age of eighteen. The inquiry is conducted by the Director and his or her staff. If the Director concludes that there has been a violation of Part V of the Act, the Director may refer the matter to the Commission whose role is to hold proceedings and to report the outcome, including any remedial recommendations, to the Minister. It is clear that the Director exercises a significant degree of control over the operation of the Combines Investigation Act. In my view, the control over the entire process exercised by the Director and the Commission satisfies the requirement that there be vigilant oversight of the administration of a regulatory scheme. 58 I am also of the view that the Combines Investigation Act meets the remaining three indicia of Canadian National Transportation. These criteria share a common theme: all three are indications that the scheme of regulation is national in scope and that local regulation would be inadequate. The Act is quite clearly concerned with the regulation of trade in general, rather than with the regulation of a particular industry or commodity. Ryan J., in upholding the validity of s. 37.1 of the Act, in Miracle Mart, supra, described the Act in terms I agree with. At page 259 he said: ... s. 37.1 is part of, as I previously indicated, a complete regulatory scheme aimed at eliminating commercial practices which are contrary to healthy competition across the country, and not in a specific place, in a specific business or industry. [Emphasis in original.] This generality of application distinguishes the Act from the legislation which was found ultra vires in Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914. In that case the legislation regulated a single trade or industry. As I noted earlier, the purpose of the Act is to ensure the existence of a healthy level of competition in the Canadian economy. The deleterious effects of anti-competitive practices transcend provincial boundaries. Competition is not an issue of purely local concern but one of crucial importance for the national economy. 59 Various factors underlie the need for national regulation of competition in the economy. Professors Hogg and Grover, in "The Constitutionality of the Competition Bill" (1976), 1 Can. Bus. L.J. 197, at pp. 199-200 (an abridged version of a paper written for the federal government's Department of Consumer and Corporate Affairs) provide a useful discussion of the diverse economic, geographical, and political factors which make it essential that competition be regulated on the federal level: It is surely obvious that major regulation of the Canadian economy has to be national. Goods and services, and the cash or credit which purchases them, flow freely from one part of the country to another without regard for provincial boundaries. Indeed, a basic concept of the federation is that it must be an economic union. An over-all national policy is the key to efficiency in the production of goods and services. Each province of the country is differently endowed with national resources, capital, labour and access to consumers. The result is that each province will be able to produce some products or services more efficiently than others. The introduction of an effective competition policy can be seen as one method to ensure that

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these differing regional advantages will accrue to the nation as a whole in terms of lower prices, better quality and variety and increased opportunities for Canadians. Any attempt to achieve an optimal distribution of economic activity must transcend provincial boundaries, for, in many respects, Canada is one huge marketplace .... The relative unimportance of provincial boundaries has become progressively more obvious as industry has tended to become more concentrated. Improved communications and transportation have increased the mobility of labour, capital and technology, as well as raw materials and the finished product .... With respect to businesses which are confined to Canada, with few exceptions, any individual or corporation, including a provincially incorporated corporation, has the capacity to "walk across" provincial boundaries in order to buy or sell, lend or borrow, hire or fire. In the absence of artificial impediments, therefore, the market for goods and services is competitive on a national basis, and provincial legislation cannot be an effective regulator. Among the materials filed in this appeal by the Attorney General of Canada was a study prepared by A. E. Safarian for the Government of Canada, entitled Canadian Federalism and Economic Integration (1974), which states a similar point at p. 58: Competition policy can be used most effectively to support the common market if it is within federal power. With mobility of goods, it is quite unrealistic to attempt to maintain diverse provincial competition policies. The more competitive structure of industry in one or more provinces would tend to impose competitive conditions on the other provinces. In such circumstances, any provincial authority which was more tolerant of monopoly or combinations than other provincial authorities would be forced to resort to protection against interprovincial imports and might be tempted to subsidize interprovincial exports. By contrast, the point of a federal common market is precisely to allow consumers and producers anywhere in Canada free access to supplies and markets across Canada. 60 It is evident from this discussion that competition cannot be effectively regulated unless it is regulated nationally. As I have said, in my view combines legislation fulfills the three indicia of national scope as described in Canadian National Transportation: it is legislation "aimed at the economy as a single integrated national unit rather than as a collection of separate local enterprises", it is legislation "that the provinces jointly or severally would be constitutionally incapable of passing" and "failure to include one or more provinces or localities would jeopardize successful operation" of the legislation "in other parts of the country".

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61 The above arguments also answer the claim of the Attorney General of Quebec that the regulation of competition does not fall within federal jurisdiction in its intraprovincial dimension and thus the Act should be read down so that s. 31.1 only applies to interprovincial trade. Quebec relies on two points to support its position. First, in the Interim Report on Competition Policy of the Canadian Economic Council, the Report which the federal government relies on to show that competition is exclusively federal, there is a passage at p. 108 that recognizes that the provinces have an important role to play in local competition laws: We would like to make it emphatically clear that in recommending such a test we intend no implication whatever that the federal government should seek exclusive occupancy of the field of competition policy under civil law, or that only the federal government is competent to manage competition policy in Canada. On the contrary, while it is clear that a considerable proportion of Canadian economic activity crosses provincial and international boundaries, and would be impossible to subject effectively to any provincial competition policy, we believe that the provinces could play a most useful role in respect of other lines of activity under their existing constitutional powers. Their assumption of such a role would be a most welcome development. If the recommendations of this Report are largely framed in terms of federal legislation, this is because a federal presence is clearly indispensable and the federal government has hitherto been, to all intents and purposes, the sole active occupant of the field. But the door to provincial participation should be left widely ajar. Such activity by the provinces would be in many ways a natural extension of their already considerable activity in the field of consumer protection. 62 The second point is that provincial law, both Civil Code and common law, already provides some remedies for unfair competition, as in the Quebec Ready Mix case where the suit was brought under art. 1053 of the Civil Code, as well as s. 31.1 of the Combines Investigation Act. Quebec points out that in the United States, forty-three states have adopted competition acts to combat local restraints on trade, in co-ordination with the federal government. 63 The arguments made above offer a response to these points. They make it clear that not only is the Act meant to cover intraprovincial trade, but that it must do so if it is to be effective. Because regulation of competition is so clearly of national interest and because competition cannot be successfully regulated by federal legislation which is restricted to interprovincial trade, the Quebec argument must fail. I also note that, contrary to the view of Marceau J. in the Trial Division of the Federal Court in Quebec Ready Mix, supra, at p. 208, that the presence of an already existing action in Quebec law does not argue for invalidating federal legislation. I would repeat what I said at p. 175 of Multiple Access, supra, (which words were also quoted by MacGuigan J. in the Court of Appeal's judgment in Attorney General of Canada v. Québec Ready Mix, supra, at p. 78): "The validity of the federal legislation must be determined without heed to the ... [provincial] legislation".

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64 On the other hand, competition is not a single matter, any more than inflation or pollution. The provinces too, may deal with competition in the exercise of their legislative powers in such fields as consumer protection, labour relations, marketing and the like. The point is, however, that Parliament also has the constitutional power to regulate intraprovincial aspects of competition. 65 In sum, the Combines Investigation Act is a complex scheme of competition regulation aimed at improving the economic welfare of the nation as a whole. It operates under a regulatory agency. It is designed to control an aspect of the economy that must be regulated nationally if it is to be successfully regulated at all. As Linden J. of the Ontario High Court of Justice said, when discussing the Act in R. v. Hoffman-La Roche, supra, at p. 191: It is part of a legislative scheme aimed at deterring a wide range of unfair competitive practices that affect trade and commerce generally across Canada, and is not limited to a single industry, commodity or area. The conduct being prohibited is generally of national and of international scope. The presence or absence of healthy competition may affect the welfare of the economy of the entire nation. It is, therefore, within the sphere of the federal Parliament to seek to regulate such competition in the interest of all Canadians. 66 I am therefore of the view that the Combines Investigation Act as a whole is intra vires Parliament as legislation in relation to general trade and commerce and I would reiterate the conclusion I reached in Canadian National Transportation, supra, at p. 278: A scheme aimed at the regulation of competition is in my view an example of the genre of legislation that could not practically or constitutionally be enacted by a provincial government. Given the free flow of trade across provincial borders guaranteed by s. 121 of the Constitution Act, 1867 Canada is, for economic purposes, a single huge marketplace. If competition is to be regulated at all it must be regulated federally. This fact leads to the syllogism cited by Hogg and Grover, The Constitutionality of the Competition Bill (1977), 1 Can Bus. L.J. 197, at p. 200: ... regulation of the competitive sector of the economy can be effectively accomplished only by federal action. If there is no federal power to enact a competition policy, then Canada cannot have a competition policy. The consequence of a denial of federal constitutional power is therefore, in practical effect, a gap in the distribution of legislative powers. IX The Validity of s. 31.1 of the Combines Investigation Act 67 Having found that the Combines Investigation Act contains a regulatory scheme, valid under s. 91(2) of the Constitution Act, 1867, the only issue remaining to be addressed is the constitutional validity of s. 31.1. As I have already noted, mere inclusion in a valid legislative scheme does not ipso

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facto confer constitutional validity upon a particular provision. The provision must be sufficiently related to that scheme for it to be constitutionally justified. The degree of relationship that is required is a function of the extent of the provision's intrusion into provincial powers. I have already discussed this issue and concluded that s. 31.1 intrudes, though in a limited way, on the important provincial power over civil rights. In this light, I do not think that a strict test, such as "truly necessary" or "integral", is appropriate. On the other hand, it is not enough that the section be merely "tacked on" to admittedly valid legislation. The correct approach in this case is to ask whether the provision is functionally related to the general objective of the legislation, and to the structure and the content of the scheme. A similar test has been applied in other cases, as I have noted, and I think it is also the proper test for the circumstances of this appeal. 68 The nature of this relationship is addressed in this last stage of constitutional analysis. If section 31.1 cannot be characterized as functionally related to the scheme of combines regulation, it will be ultra vires. Neither the respondent nor the Attorney General of Canada submitted that s. 31.1 could be sustained under a head of power other than s. 91(2). 69 I am of the opinion that the necessary link between s. 31.1 and the Act exists. Section 31.1 is an integral, well-conceived component of the economic regulation strategy found in the Combines Investigation Act. Even if a much stricter test of fit were applied -- for instance, one of "necessarily incidental" -- s. 31.1 would still pass the test. Under the test of "functionally related" the section is clearly valid. 70 Section 31.1 is one of the arsenal of remedies created by the Act to discourage anti-competitive practices. Section 31.1 simply serves to reinforce other sanctions of the Act. The other remedial responses include orders of the Restrictive Trade Practices Commission (Part IV.1), interim injunctions (Part IV), and criminal sanctions (Part V). Like the other remedies, s. 31.1 is intimately linked to the Combines Investigation Act. It takes on meaning only by reference to other provisions of the Act and has no independent content. As a result, the section is carefully bounded by the parameters of the Combines Investigation Act. It provides a private remedy only for particular violations of the Act and does not create a private right of action at large. 71 Section 31.1 of the Combines Investigation Act is also fundamentally integrated into the purpose and underlying philosophy of the Combines Investigation Act. There is a close congruence between the goal of enhancing healthy competition in the economy and s. 31.1 which creates a private remedy dependent for its effectiveness on individual initiative. The very exercise of the remedy in s. 31.1 by a company against a competitor whose behaviour has transgressed the code of conduct established by the Act may be said to reflect and promote the spirit of competition informing the Combines Investigation Act. In my view, the intimate tie between the purpose of the Act and a privately initiated and privately conducted enforcement mechanism is a strong indication that s. 31.1 is enmeshed in the fabric in the Act.

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72 It is important to note that s. 31.1 does not create a general action for damages. Before any person can recover under s. 31.1 he or she must have suffered loss or damage as a result of (i) conduct contrary to Part V of the Act or (ii) the failure of the defendant to comply with an order of the Commission or a court under the Act. Section 31.1(2) of the Act provides in part that in any action under subs. (1) against a person, the record of proceedings in any court in which that person was convicted of an offence under Part V or convicted of or punished for failure to comply with an order of the Commission or a court under the Act is, in the absence of any evidence to the contrary, proof that the person against whom the action is brought engaged in conduct that was contrary to a provision of Part V or failed to comply with an order of the Commission or a court under the Act. It seems to me that s. 31.1 is fully integrated into the Act, indeed, it is a core provision of the very pith and substance of the Act. As the Attorney General of Canada submits, the civil action for damages provided by s. 31.1 for an occurrence of the anti-competitive practices set out in s. 34(1)(a) is clearly as much a part of the legislative scheme regulating competition throughout Canada as is the criminal action for fines and imprisonment or the administrative action involving an inquiry or the reduction of customs duties. Together or apart, the civil, administrative, and criminal actions provide a deterrent against the breach of the competitive policies set out in the Act. In this respect s. 31.1 is part of a legislative scheme intended to create "a more complete and more effective system of enforcement in which public and private initiative can both operate to motivate and effectuate compliance" (per MacGuigan J. at p. 77 in Québec Ready Mix, supra). 73 The use by a party of the civil remedy in s. 31.1 does not prevent the operation of the other remedial mechanisms of the Combines Investigation Act. The right of action in s. 31.1 may be used to supplement the other remedial provisions in the Act. The civil cause of action may also be used by an aggrieved party when the public enforcement mechanism of the Act fails to react with sufficient alacrity. As Anisman and Hogg state in "Constitutional Aspects of Federal Securities Legislation", in Proposals for a Securities Market Law for Canada (1979), vol. 3, at p. 190: ... the availability of civil actions for damages by persons who suffer harm as a result of a violation both enhances the deterrent effect of the legislation and enables compensation to the plaintiff for his injury. Indeed, the public benefits of private actions derive largely from the economic interest of the plaintiff in obtaining compensation for the effects of the violation. This, it seems to me, is an answer to the appellant's arguments that no public interest is being served by s. 31.1, only the private interest of the individual plaintiff, and that the Act can function adequately without the inclusion of a private right of action. Rosenberg J. accepted the latter argument at trial, commenting that the Act had operated for seventy-five years without a comparable provision. With respect, for the reasons just discussed and in view of the history of the provision, I find this argument unconvincing. Section 31.1 was added to the Combines Investigation Act as part of a package of amendments to the Act in 1975. These amendments were introduced to implement recommendations made by the Economic Council of Canada in its Interim Report on Competition Policy, released in July

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1969. The Council proposed prevention and deterrence of anti-competitive activities, rather than convictions, as the primary goals of the enforcement of combines legislation. The Economic Council suggested that in addition to the significant deterrent role played by the threat of criminal sanctions, Parliament should consider including a private right of civil action in the Act's enforcement mechanism. The basic reasons given by the Economic Council for seeking to place some of the federal government's economic policy on a civil law basis were "to improve its relevance to economic goals, its effectiveness, and its acceptability to the general public" (p. 109 of the Interim Report). Resting the constitutional foundation on the criminal law power contributed, in the opinion of the Council, to the rigidity and "inflexibility of the law and its administration. Criminal offences must be proved beyond a reasonable doubt. Charges must be expressed and proven in the categorical manner specified in the statute." 74 The Economic Council made particular mention of American antitrust legislation which contains an action for damages at the suit of private parties who believe themselves to have been injured by anti-competitive behaviour. In the United States experience, the Economic Council noted, civil suits have provided an important element of deterrence. Black J. of the Supreme Court of the United States, in Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134 (1967), referred to the private civil damage action in that country's antitrust legislation, as "a bulwark of antitrust enforcement" at p. 139: Both Simpson [Simpson v. Union Oil Co. 377 U.S. 13 (1964)] and Kiefer-Stewart [Kiefer-Stewart Co. v. Seagram & Sons, 340 U.S. 211 (1951)] were premised on a recognition that the purposes of the antitrust laws are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating business behaviour in violation of the antitrust laws. The plaintiff who reaps the reward of treble damages may be no less morally reprehensible than the defendant, but the law encourages his suit to further the overriding public policy in favor of competition. A more fastidious regard for the relative moral worth of the parties would only result in seriously undermining the usefulness of the private action as a bulwark of antitrust enforcement. And permitting the plaintiff to recover a windfall gain does not encourage continued violations by those in his position since they remain fully subject to civil and criminal penalties for their own illegal conduct. Kiefer-Stewart, supra. Although there are differences between s. 31.1 and the American civil action provisions, including the award of treble damages under American law, in my view the American antitrust experience should not be overlooked. 75 The Economic Council also recommended expanding civil enforcement mechanisms generally to increase flexibility needed to combat business practices reducing competition. To comply with these suggestions, a number of provisions were added to the Act in 1975 including all of Part IV.1, Matters Reviewable by the Commission. 76 While it is true that the Combines Investigation Act existed for decades without a provision equivalent to s. 31.1, I see no reason why remedies available for violations of the Act should be frozen

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in time. There is no constitutional impediment to amending the remedies provisions of the Combines Investigation Act to conform with changing economic realities. 77 For these reasons, I conclude that s. 31.1 is an integral part of the Combines Investigation Act scheme regulating anti-competitive conduct. The relationship between the section and the Act easily meets the test for the section to be upheld. This finding should not be interpreted as authority for upholding all provisions creating private civil action that are attached to a valid trade and commerce regulatory scheme or any other particular type of scheme. Section 31.1 is carefully constructed and restricted by the terms of the Combines Investigation Act. 78 This conclusion rebuts the appellant's argument that s. 31.1 tilts the constitutional balance between the federal domain and the domain of the provinces in favour of Parliament. Satisfying all of the concerns which I have discussed ensures that the constitutional balance will not be upset. It is also worth mentioning that in itself s. 31.1 does not share the characteristics of provisions that were not upheld as exercises of the general trade and commerce power: (a) regulating a single trade, even though on a national basis (Labatt Breweries, supra); (b) regulating a series of individual trades by various regulations or trade codes applicable to each individual sector (Re Anti-Inflation Act, [1976] 2 S.C.R. 373); (c) controlling production in a local area (Canadian National Transportation, supra); (d) proscribing the ethical conduct of persons engaged in trade and unconnected to a general regulatory scheme governing trade relations (Vapor Canada, supra); (e) regulating contracts of a particular business or trade (Parsons, supra). 79 One of the arguments of the appellant and the interveners for holding s. 31.1 ultra vires was that the section is no different from s. 7(e) of the Trade Marks Act, which this court struck down in Vapor Canada, supra. I have already dealt with many of the concerns raised by this argument. Because of the reliance which the parties placed upon this case, however, I will consider its implications in greater detail. 80 In my view, there is no analogy to be drawn between s. 31.1 of the Combines Investigation Act and s. 7(e) of the Trade Marks Act. Section 7(e) provided: 7. No person shall ... (e) do any other act or adopt any other business practice contrary to honest industrial or commercial usage in Canada.

The appellant points to the following passage from the reasons of Laskin C.J. as determinative of the constitutional validity of s. 31.1 (at p. 165): One looks in vain for any regulatory scheme in s. 7, let alone s. 7(e). Its enforcement is left to the chance of private redress without public monitoring by the continuing oversight of a 326

regulatory agency which would at least lend some colour to the alleged national or Canadawide sweep of s. 7(e). The provision is not directed to trade but to the ethical conduct of persons engaged in trade or in business, and, in my view, such a detached provision cannot survive alone unconnected to a general regulatory scheme to govern trading relations going beyond merely local concern. Even on the footing of being concerned with practices in the conduct of trade, its private enforcement by civil action gives it a local cast because it is as applicable in its terms to local or intraprovincial competitors as it is to competitors in interprovincial trade. 81 I cannot agree that the implication of this passage is that s. 31.1 is not legislation in relation to trade and commerce. Section 31.1 differs in two significant respects from s. 7(e) of the Trade Marks Act. First, section 7(e) was entirely unconnected to trade or to trade marks. Section 7(e) was directed to the ethical conduct of persons engaged in trade or business and which did not apply to specific prohibited anti-competitive business practices but to "the entire range of business relationships in any activity whether the activity be itself within or beyond federal legislative authority" (Vapor Canada, supra, at p. 164). Laskin C.J. noted the lack of connection between the entire s. 7 and the rest of the Trade Marks Act, remarking that the section (at pp. 141-42) "stands alone ... in not being concerned with trade marks or trade names". In my view the key to understanding the reasons for striking down s. 7(e) may be found in the following words from the passage of Laskin C.J. relied on by the appellants and quoted above: "such a detached provision cannot survive alone unconnected to a general regulatory scheme." Section 31.1 of the Combines Investigation Act, in contrast, is not a discrete provision inserted into a statute of entirely different content. It is simply one of a number of methods of confronting anti-competitive activities and of achieving the very purpose underlying the Combines Investigation Act. Unlike section 7(e) of the Trade Marks Act, s. 31.1 does not create a disparate cause of action unrelated to the general scheme of the Combines Investigation Act. 82 Second, s. 7(e) of the Trade Marks Act created a very broad and undefined cause of action for all acts described by the ambiguous phrase "contrary to honest industrial or commercial usage in Canada". Section 31.1 of the Combines Investigation Act is clearly limited to specific provisions found elsewhere in the Act. Rowbothom J., at p. 306 in Henuset Bros. Ltd. v. Syncrude Canada Ltd., supra, came to the same view: The question before me is similar to that posed in MacDonald et al. v. Vapour Canada Ltd. et al. (1976), 66 D.L.R. (3d) 1, 22 C.P.R. (2d) 1, [1977] S.C.R. 134, but the legislation to be considered differs in several very important aspects. Section 7(e) of the Trade Marks Act, R.S.C. 1970, c. T-10, even when read together with the other subsections and in conjunction with s. 53 thereof, is vague and disjunctive. Section 31.1 of the Combines Investigation Act relates directly to Parts IV, IV.1 and V thereof by reference to conduct prohibited in those parts. Section 7(e) of the Trade Marks Act, either alone or in conjunction with the other subsections and with s. 53 thereof is not linked to any overall scheme for the regulation and control of

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offences which adversely affect the conduct of trade and commerce. Section 31.1 of the Combines Investigation Act, because of its connection with the parts referred to above, is a part of a comprehensive scheme for the regulation and control of anti-competitive trade practices .... 83 The other reasons Laskin C.J. offered for holding that s. 7(e) of the Trade Marks Act could not be upheld under the trade and commerce power stem from the fact that s. 7(e) was not part of a valid national scheme of regulation. Laskin C.J. pointed to the absence of public monitoring by the continuing oversight of a regulatory agency in s. 7(e), and the inability to demonstrate the provision had national scope. None of these concerns arises in the case of s. 31.1, since the Combines Investigation Act contains a regulatory scheme which operates under the scrutiny of a regulatory agency and which is national in scope. Laskin C.J. also referred to s. 7(e) as a detached provision directed at the ethical conduct of persons engaged in trade. Section 31.1 can no more be said to be directed at ethical conduct than can the entire Combines Investigation Act. Finally, Laskin C.J. noted that the private enforcement of s. 7(e) gave the provision a local cast because it could be applied to competitors in intraprovincial trade. In my view, the fact that federal legislation may have some ramifications on trade carried on solely within one province will not be fatal to the legislation's validity. Every general enactment will necessarily have some local impact and it would be absurd to strike down legislation for that reason alone. All of the provisions of the Combines Investigation Act are open to application on purely intraprovincial transactions. In fact, the Combines Investigation Act would not be effective competition legislation if it could not reach intraprovincial activities. The simple fact that s. 31.1 can be applied to transactions occurring entirely within a single province does not undermine the section's validity. 84 It is also important to recognize that while the Court in Vapor Canada, supra, struck down one civil cause of action, the Court did not preclude other federally created private actions from being sustained under federal heads of power. The Court did not strike down s. 7(e) simply because it was left to private enforcement. The right of civil action was created by s. 53 of the Trade Marks Act which provided: 53. Where it is made to appear to a court of competent jurisdiction that any act has been done contrary to this Act, the court may make any such order as the circumstances require including provision for relief by way of injunction and the recovery of damages or profits, and may give directions with respect to the disposition of any offending wares, packages, labels and advertising material and of any dies used in connection therewith. The enforcement of the trade mark provisions of the Act were, and still are, left to suit by private actors. Enforcement of federal patents, Patent Act, R.S.C. 1970, c. P-4, ss. 56-62, as amended, and of copyrights, Copyright Act, R.S.C. 1970, c. C-30, ss. 20-24, is left to private action.

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85 In sum, the facts of Vapor Canada, supra, are clearly distinguishable from those in the present appeal. 86 For all of the foregoing reasons I am of the view that s. 31.1 is intra vires Parliament by virtue of its relationship to the scheme of economic regulation found in the Combines Investigation Act. X Disposition 87 I conclude that the Combines Investigation Act, and s. 31.1 of the Act, are valid federal enactments in accordance with Parliament's power over trade and commerce affecting the entire nation. [....]

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3.5 ­ Taxing and Spending Powers

Bank of Toronto v. Lambe, 1887

(1887) 12 App. Cas. 575 (P.C.) Judicial Committee of the Privy Council, London, England Lord Hobhouse, Lord Macnaghten, Sir Barnes Peacock, Sir Richard Baggallay and Sir Richard Couch The judgment of their Lordships was delivered by 1 LORD HOBHOUSE:-- These appeals raise one of the many difficult questions which have c