Supreme Court of Canada
R. v. Eldorade Nuclear Ltd., [1983] 2
S.C.R. 551
Date: 1983-12-15
Her Majesty The Queen Appellant;
and
Eldorado Nuclear
Limited—Eldorado Nucléaire Limitée Respondent.
and between
Her Majesty The Queen Appellant;
and
Uranium Canada Limited—Uranium
Canada
Limitée Respondent.
File Nos.: 17175 and
17176.
1983: January 27; 1983: December 15.
Present: Laskin C.J. and Ritchie, Dickson, Beetz, Mclntyre,
Chouinard and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Crown immunity—Combines investigation—Crown
corporations charged with conspiracy to lessen competition—Whether corporations
entitled to Crown immunity—Combines Investigation Act, R.S.C. 1970, c. C-23, s.
32(1)(c) [rep. & sub. 1974-75-76 (Can.), c. 76, s. 14]—Interpretation Act,
R.S.C. 1970, c. I-23, ss. 16, 27(2)—Atomic Energy Control Act, R.S.C 1970, c.
A-19,s. 10—Government Companies Operation Act, R.S.C 1970, c. G-7, ss. 2 [am.
1974-75-76 (Can.), c. 33, s. 265 (Item 4)], 3, 6.
The respondents were charged under s. 32(1)(c) of the Combines
Investigation Act of conspiring with others to unduly lessen competition in
the production or sale of uranium products in Canada. They applied to the
Supreme Court of Ontario for an order prohibiting the Provincial Court from
proceeding to inquire into the charges on the basis that the Provincial Court
lacked jurisdiction to proceed because they were agents of the Crown and
therefore the Combines Investigation Act did not apply. The Supreme
Court granted the applications and the Court of Appeal upheld the decision.
This appeal is to determine whether respondents are immune from criminal
liability under s. 32(1)(c) of the Combines Investigation Act
because they are agents of the Crown.
[Page 552]
Held (Mclntyre and Wilson JJ. dissenting in part): The
appeals should be dismissed.
Per Laskin C.J. and Ritchie, Dickson, Beetz and
Chouinard JJ.: The Combines Investigation Act is not binding on the
Crown. Section 16 of the Interpretation Act makes it clear that the
Crown is immune unless expressly bound. There is no section in the Combines
Investigation Act or the Interpretation Act which makes the Act
applicable to Her Majesty. The effect of Crown immunity is not that the Crown
is immune from prosecution even though there has been an unlawful act, rather,
there is no unlawful act under the statute because the statute does not apply
to the Crown. Crown immunity extends to agents and servants because the Crown
only acts through agents and servants. The respondents are each by statute “for
all its purposes an agent of Her Majesty”. A Crown agent is only entitled to
immunity when it acts within the scope of the public purposes it is statutorily
empowered to pursue. Prima facie, the conduct complained of was within
the scope of Crown purposes, for which the companies were incorporated—namely,
to implement national policy relating to atomic energy in all its aspects. No
evidence was presented or alluded indicating that the companies acted outside
corporate objects for other than Crown purposes. Accordingly, there is no merit
in the appellant’s submission that the prohibition orders were premature.
[Canadian Broadcasting Corporation v. The Queen, [1983]
1 S.C.R. 339, distinguished; Canadian Broadcasting Corporation v.
Attorney-General for Ontario, [1959] S.C.R. 188; Province of Bombay v.
City of Bombay, [1947] A.C. 58; Conseil des Ports Nationaux v.
Langelier, [1969] S.C.R. 60; considered; Her Majesty in Right of the
Province of Alberta v. Canadian Transport Commission, [1978] 1 S.C.R. 61; Bank
voor Handel en Scheepvaart N.V. v. Administrator of Hungarian Property,
[1954] A.C. 584; Willion v. Berkley (1561), 1 Plowd. 223, 75 E.R. 339; Bonanza
Creek Gold Mining Co. v. The King, [1916] 1 A.C. 566; Feather v. The
Queen (1865), 122 E.R. 1191; Formea Chemicals Ltd. v. Polymer
Corporation Ltd., [1968] S.C.R. 754; R. v. Stradiotto, [1973] 2 O.R.
375; Metropolitan Meat Industry Board v. Sheedy, [1927] A.C. 899; Tamlin
v. Hannaford, [1950] 1 K.B. 18; British Columbia Power Corp. v.
Attorney-General of British Columbia (1962), 34 D.L.R. (2d) 25, referred
to.]
APPEALS from a judgment of the Ontario Court of Appeal (1982),
138 D.L.R. (3d) 626, 68
[Page 553]
C.C.C. (2d) 200, 39 O.R. (2d) 474, 21 B.L.R. 72, affirming a
judgment of J. Holland J. (1982), 138 D.L.R. (3d) 626, 68 C.C.C. (2d) 200, 38
O.R. (2d) 130, 17 B.L.R. 275, granting an application for a writ of
prohibition. Appeals dismissed, Mclntyre and Wilson JJ. dissenting in part.
John W. Brown, Q.C, Calvin S. Goldman and Michael R.
Dambrot, for the appellant.
P.Y. Atkinson and F.D. Cass, for the respondent Eldorado
Nuclear Ltd.
Gordon F. Henderson, Q.C., and Emilio Binavince, for the
respondent Uranium Canada Ltd.
The judgment of Laskin C.J. and Ritchie, Dickson, Beetz and
Chouinard JJ. was delivered by
DICKSON J.—The question is whether respondents, Uranium Canada
Limited (“Uranium Canada”) and Eldorado Nuclear Limited (“Eldorado”), are
immune from criminal liability under s. 32(1)(c) of the Combines
Investigation Act, R.S.C. 1970, c. C-23, because they are agents of the
Crown.
I The Proceedings to Date
By informations sworn July 4 and July 7, 1981 by Orest R. Sametz,
Combines Investigation Officer, the respondents and others were charged with
having conspired, combined, agreed or arranged together and with another to
prevent or lessen, unduly, competition in the production, manufacture,
purchase, sale or supply in Canada of uranium, uranium oxide and other uranium
substances, contrary to s. 32(1)(c) of the Combines Investigation Act.
A summons was issued to each of the respondent Companies. Each appeared before
Judge Rice of the Ontario Provincial Court (Criminal Division). Tentative dates
were set for a preliminary inquiry. Before the commencement of the inquiry,
each Company applied to the Supreme Court of Ontario for an order prohibiting
Judge Rice or any other judge from proceeding to inquire into the charges. It
was contended that the Provincial Court lacked jurisdiction to proceed because
[Page 554]
they were agents of the Crown and therefore the Combines
Investigation Act did not apply.
Although Uranium Canada and Eldorado were charged in separate
informations, the two prohibition applications were heard together, by
agreement. Notwithstanding certain differences in the legal origins of the two
Companies, the two cases raise similar issues, and it is convenient to deal
with both in a single judgment.
The prohibition applications were successful in the court of
first instance. Mr. Justice J. Holland found that under the express terms
of their governing statutes neither Company could act other than as an agent of
the Crown, and, since the Combines Investigation Act did not bind Her
Majesty, either expressly or by necessary implication, the conduct complained
of in the charges could not be characterized as criminal. There was accordingly
no foundation upon which the charges could be validly laid or prosecuted.
In an oral judgment the Ontario Court of Appeal upheld the
prohibition orders. Cory J.A., Houlden and Thorson JJ.A. concurring, concluded:
(i) the Combines Investigation Act does not apply to the
Crown because of s. 16 of the Interpretation Act, R.S.C. 1970, c. I-23;
(ii) by virtue of the statutes under which Uranium Canada and
Eldorado are constituted, each Company is an agent of Her Majesty for all its purposes,
and may act in no other capacity than as agent of the Crown;
(iii) the two Companies are authorized by their respective
corporate objects clauses and relevant legislation to perform the acts
complained of in the charges against them; and
[Page 555]
(iv) in carrying out such corporate purposes Uranium Canada and
Eldorado are entitled to the same immunity from prosecution as the sovereign.
The Court of Appeal took this further point. Both the preamble
and the specific provisions of the Atomic Energy Control Act, R.S.C.
1970, c. A-19, emphasize it is in the national interest to control and
supervise atomic energy. The specific provisions of the Act should therefore
prevail over the general provisions of the Combines Investigation Act.
It followed that the Combines Investigation Act does not apply to the
two Companies.
The appeal to this Court by the Attorney General of Canada is
based on the submission that the Combines Investigation Act is binding
on the Crown; in the alternative, that even if the Combines Investigation
Act does not bind the Crown, Uranium Canada and Eldorado cannot claim Crown
immunity for the following reasons:
(i) Nothing in the corporate objects of either Company, nor in
the statutory provisions governing the Companies’ corporate existence, nor in
the Atomic Energy Control Act itself, authorizes either Company to
conspire, combine or agree to lessen unduly competition in the production,
manufacture, purchase, sale or supply of uranium.
(ii) Although breaches of the Combines Investigation Act
are not authorized by either Company’s corporate objects, nevertheless both
Companies have the capacity, as opposed to the legal power, to commit criminal
acts for which they may be held responsible.
(iii) By statute each Company is “for all its purposes” an agent
of the Crown, but the words “its purposes” should be construed as meaning lawful
purposes, such that the Companies will be agents of Her Majesty only when
carrying out corporate purposes and exercising corporate powers in a lawful
manner.
(iv) Uranium Canada and Eldorado are entitled to Crown immunity
only when acting within
[Page 556]
their authority in furtherance of Crown purposes.
(v) There was no evidence before the Court of Appeal upon which
to base a finding that Uranium Canada and Eldorado had not exceeded their
respective corporative authorities. It is implicit in the fact that the
information charges an offence contrary to s. 32(1) of the Combines
Investigation Act that the Attorney General takes the position that the
accused were not authorized to do the acts constituting the offence. Whether
the accused exceeded authority is a factual matter to be determined from
evidence which the Attorney General will lead in proof of the charge. Hence the
prohibition orders were premature.
II Does the Combines Investigation Act bind the Crown?
The doctrine of Crown immunity from statutes is a very old common
law doctrine. In 1457 Ashton J. stated, Y.B. 35 H.6, f.62:
quant un remedy soit fait pur un statute ce
ne serra entendu en contre le roy s’il ne soit pas expressement reherse.
That wording may seem to be quite broad, but it has been
suggested by H. Street, in “The Effect of Statutes upon the Rights and
Liabilities of the Crown”, (1948) 7 U. of T.L.J. 357 at p. 361, that this had
application only to the King’s prerogative and was therefore relatively narrow.
It can at least be said that, a century later, the Court of Appeal in Willion
v. Berkley (1561), 1 Plowd. 223, 75 E.R. 339, recognized clear limits on
the extent of Crown immunity. The case concerned a statute involving the right
to alienate land. The majority of the Court decided the King was bound, though
there were no express words to that effect. Dyer C.J. said this at pp. 251-52:
And as to what is said, that the King shall not be bound by
the Act, and that there shall not be any restraint in the estate which he
takes, unless the same be precisely expressed in the Act, sir, in some cases I
admit that the King shall not be restrained by general words, without express
restraint in the Act, and that is according to the
[Page 557]
matter of the Act; but in this Act he shall be bound, for it
is made for the furtherance of restitution, that is to say, where it was a
great abuse that the donee had the power of aliening after issue had, (which being
a common error was taken for the common law) this statute was made to reform
the abuse, and to restore the common law in this point to its right and just
course, which it did by restoring to the donor the observance of his intent. So
that the design of the Act is to give restitution, and in restitutions the King
has no favour, nor has his prerogative any exemption, but the party restored is
favoured. [Footnotes omitted]
Brown J. said, at p. 248 “it is a difficult argument to prove
that a statute, which restrains men generally from doing wrong, leaves the King
at liberty to do wrong”. Street describes the law of that time in the following
way, at p. 362:
By 1561 it had been established that the crown was bound by
a statute which was intended to bind it, and it is clear that where the statute
affected the subject’s rights rather than the crown’s, the courts would readily
read into the statute an intention to bind the crown. On the contrary, there
was a strong presumption that a general statute would not affect the king’s
prerogative rights unless he were named in it.
Street’s thesis is that the modern common law position is based
on a misunderstanding of the precedents. Whether or not this is true, and
Street does make a persuasive case, it is clear that the current common law
position embraces a broad notion of Crown immunity. In Province of Bombay v.
City of Bombay, [1947] A.C. 58, the Privy Council held that the Crown was
only bound by statute if expressly named therein, unless the Crown were bound
by necessary implication. The latter concept was explained, at p. 63, in the
following terms:
If it can be affirmed that, at the time when the statute was
passed and received the royal sanction, it was apparent from its terms that its
beneficent purpose must be wholly frustrated unless the Crown were bound, then
it may be inferred that the Crown has agreed to be bound.
The Bombay test makes no differentiation between types of
statutes involved, or types of rights or obligations imposed. This Court relied
on the
[Page 558]
Bombay test in Her Majesty in Right of the Province of Alberta
v. Canadian Transport Commission, [1978] 1 S.C.R. 61. I note in passing
that the Attorney General is not submitting in this appeal, as he apparently
did in the courts below, that the Crown is bound by the necessary implication
doctrine.
Parliament has followed the lead of the common law, and taken the
development one step further. Section 16 of the Interpretation Act removes
even the necessary implication exception:
No enactment is binding on Her Majesty or affects Her
Majesty or Her Majesty’s rights or prerogatives in any manner, except only as
therein mentioned or referred to.
The conceptual rationale underlying the doctrine of Crown
immunity is obscure. In Bonanza Creek Gold Mining Co. v. The King, [1916]
1 A.C. 566, the Privy Council said, at p. 586:
…it is the general rule in the construction of statutes that
the Crown is not affected unless there be words to that effect, inasmuch as the
law made by the Crown with the assent of the Lords and Commons is enacted prima
facie for the subject and not for the Sovereign.
Why that presumption should be made is not clear. It seems to
conflict with basic notions of equality before the law. The more active
government becomes in activities that had once been considered the preserve of
private persons, the less easy it is to understand why the Crown need be, or
ought to be, in a position different from the subject. This Court is not,
however, entitled to question the basic concept of Crown immunity, for
Parliament has unequivocally adopted the premise that the Crown is prima
facie immune. The Court must give effect to the statutory direction that
the Crown is not bound unless it is “mentioned or referred to” in the
enactment.
The Combines Investigation Act contains no
section purporting to make the Act applicable to Her Majesty. Prima
facie then, because of s. 16 of the Interpretation Act, the
Combines Investigation
[Page 559]
Act is not binding on the Crown. The Attorney General,
however, makes two arguments directed to showing that the Combines
Investigation Act does apply to the Crown.
The first argument turns on the fact that s. 32 of the Combines
Investigation Act, on which the charges in this case are based, was at one
time s. 411 of the Criminal Code, 1953-54 (Can.), c. 51. In 1960
Parliament enacted An Act to amend the Combines Investigation Act and the
Criminal Code, 1960 (Can.), c. 45, which repealed s. 411 of the Code
and re-enacted the provision as s. 32 of the Combines Investigation Act.
Section 22 of the 1960 amending legislation also contained the following
provision:
Except to the extent that subsection (1) of
section 32 of the Combines Investigation Act as enacted by this Act
is not in substance the same as section 411 of the Criminal Code as
in force immediately before the coming into force of this Act, the said
subsection (1) of section 32 of the Combines Investigation Act
shall not be held to operate as new law, but shall be construed and have effect
as a consolidation and as declaratory of the law as contained in the said
section 411 of the Criminal Code.
The Attorney General makes the point that both s. 411 of the
1953-54 Criminal Code and s. 32 of the Combines Investigation Act
used the words “every one”, which were defined in s. 2(15) of the 1953-54 Criminal
Code (as it still is today) in the following terms:
‘every one’, ‘person’, ‘owner’, and similar expressions
include Her Majesty and public bodies, bodies corporate, societies, companies
and inhabitants of counties, parishes, municipalities or other districts in
relation to the acts and things that they are capable of doing and owning
respectively;
Relying on the above-quoted provision in the 1960 amending
legislation, the Attorney General submits that the words “every one” in s. 32
of the
[Page 560]
Combines Investigation Act now have the meaning it had
when the section was part of the Criminal Code, and s. 32 of the Combines
Investigation Act therefore applies to the Crown.
The flaw in the Attorney General’s first argument is that the
definitions in s. 2 of the Criminal Code begin with the words “In this
Act”. In other words, in the absence of a provision expressly incorporating the
Criminal Code definition of “every one” into the Combines
Investigation Act, the definition applies only in the Code itself.
In my opinion the provision in the 1960 amending statute to the effect that s.
32 of the Combines Investigation Act should not “operate as new law” is
not sufficient to overcome express words in the Criminal Code that
restrict the definition of “every one” to that Act. Section 16 of the Interpretation
Act requires an express provision to make an act binding on the Crown. The
giving of royal assent amounts to a waiver of immunity. In the Court’s decision
in Canadian Broadcasting Corporation v. Attorney-General for Ontario,
[1959] S.C.R. 188 (the 1959 CBC case), both the majority and dissent
agreed that clear language was needed to bind the Crown. The “shall not be held
to operate as new law” stipulation in the 1960 amending Act is far too vague
and oblique a reference to have the effect for which the Attorney General
contends.
The Attorney General’s second argument is to the effect that the Criminal
Code definition of “every one” is inferentially imported into the Combines
Investigation Act by s. 27(2) of the Interpretation Act which reads:
All the provisions of the Criminal Code relating to
indictable offences apply to indictable offences created by an enactment, and
all the provisions of the Criminal Code relating to summary conviction
offences apply to all other offences created by an enactment, except to the
extent that the enactment otherwise provides.
[Page 561]
The Attorney General submits that the definition of “every one”
in s. 2 of the Code is a provision “relating to indictable offences” and
as such it applies to offences created by the Combines Investigation Act.
With respect, I disagree. The gist of this argument is that s.
27(2) of the Interpretation Act incorporates the Criminal Code
definition of “every one” into all federal penal enactments, thereby making all
such enactments binding on the Crown, “except to the extent that the enactment
otherwise provides”. This cannot be right because it is directly contrary to
the express words of s. 16 of the Interpretation Act, which provides
that “No enactment is binding on Her Majesty… except only as therein mentioned
or referred to”. Section 16 makes the Crown immune unless expressly bound,
and it cannot be that s. 27 of the same Act binds the Crown unless expressly
exempted. In my view s. 27(2) of the Interpretation Act does not import
the Criminal Code definition of “every one” into the Combines
Investigation Act, and it does not make the latter Act binding on the
Crown.
Even if the Attorney General could succeed in showing that the Criminal
Code definition of “every one” is incorporated into the Combines
Investigation Act, he woud still face the obstacle posed by the decision in
the 1959 CBC case, supra, where the majority held that the Criminal
Code definition of the word “person”, which is identical to the definition
of “every one”, did not make the Lord’s Day Act binding on the Crown,
even though that Act expressly incorporated the Criminal Code
definition. The majority view was that the provision that “person” included Her
Majesty was not sufficiently clear to make the Crown criminally liable; it was
read as stipulating that Her Majesty could be a victim of crime. The Interpretation
Act, however, has been amended since this judgment was rendered. In 1959
the exception recognized by the section was: “unless it is expressly
stated therein that Her Majesty is bound thereby”. The new exception clause
reads: “except only as therein mentioned or referred to”.
[Page 562]
It is not necessary to determine whether the 1959 CBC case
was rightly decided or whether the result in the case would be the same under
the new version of s. 16; for present purposes it is enough to observe that
there is some doubt whether the definition of “every one” in the Criminal
Code has the effect of making the Code, and any enactment
incorporating that definition, binding on the Crown.
For the above reasons, then, the submission of the Attorney
General that the Combines Investigation Act binds the Crown must fail.
The question that remains is whether Uranium Canada and Eldorado are entitled
to the benefit of the Crown’s immunity from the prohibitory terms of the Combines
Investigation Act.
III Are Eldorado Nuclear and Uranium Canada
entitled to Crown Immunity?
In Canada, the head of state is Her Majesty the Queen, the
reigning monarch of the United Kingdom. By providing that “no enactment is
binding on Her Majesty… except only as therein mentioned or referred to”,
Parliament has put the state, commonly referred to as the Crown, beyond the
reach of Acts of Parliament that are not expressly made applicable to the
Crown.
Like a corporation, the Crown must act through agents or
servants. Assuming for the moment that Uranium Canada and Eldorado were acting
as agents of the Crown, where do they stand vis-à-vis the Combines
Investigation Act? The Attorney General submits that even if the Crown is
immune, agents of the Crown may be personally liable for breaches of the civil
or criminal law. It is argued that the principles applicable to civil and
criminal responsibility are the same. The conclusion reached is that a Crown
agent may be criminally responsible under the Combines Investigation Act.
The Attorney General relies on this Court’s decision in Conseil
des Ports Nationaux v. Langelier, [1969] S.C.R. 60. This was a delict case.
[Page 563]
During the course of his reasons Martland J., speaking for the
Court, said this, at p. 70:
What is in issue here is the responsibility of a person,
whether individual or corporate, who, though a Crown agent, and purporting to
act as such, commits an act which is unlawful. My understanding of the law is
that a personal liability will result. The liability arises, not because he is
an agent of the Crown, but because, though he is an agent of the Crown, the
plea of Crown authority will not avail in such event.
This passage properly states the law, but I do not agree it
produces the result for which the Attorney General contends.
At common law, the Sovereign could not be brought into the
Queen’s courts in the ordinary way. This arose from an immunity of the
Sovereign from court process. This immunity was distinct from the immunity of
the Sovereign under statutes. Immunity from court process did not, however,
leave the subject without any civil remedy. For certain matters, such as breach
of contract, the procedure of petition of right was available to settle
disputes between the Crown and a subject. In tort the Queen could not be sued
but that did not prevent an agent of the Queen from being sued. In Feather
v. The Queen (1865), 122 E.R. 1191 (C.A.), one of the authorities relied
upon by Martland J., Cockburn C.J. speaking for the Court, said this, at pp.
1205-06:
For the maxim that the King can do no wrong applies to
personal as well as to political wrongs; and not only to wrongs done personally
by the Sovereign, if such a thing can be supposed to be possible, but to
injuries done by a subject by the authority of the Sovereign. For, from the
maxim that the King cannot do wrong it follows, as a necessary consequence,
that the King cannot authorize wrong. For to authorize a wrong to be done is to
do a wrong; inasmuch as the wrongful act, when done, becomes, in law, the act
of him who directed or authorized it to be done. It follows that a petition of
right which complains of a tortious act done by the Crown, or by a public
servant by the authority of the Crown, discloses no matter of complaint which
can entitle the petitioner to redress. As in the eye of the law no such wrong
can be done, so, in law, no right to redress can arise; and the petition therefore,
which rests on such a
[Page 564]
foundation falls at once to the ground. Let it not, however,
be supposed that a subject sustaining a legal wrong at the hands of a minister
of the Crown is without a remedy. As the Sovereign cannot authorize wrong to be
done, the authority of the Crown would afford no defence to an action brought
for an illegal act committed by an officer of the Crown… But in our opinion no
authority is needed to establish that a servant of the Crown is responsible in
law for a tortious act done to a fellow subject, though done by the authority
of the Crown—a position which appears to us to rest on principles which are too
well settled to admit of question, and which are alike essential to uphold the
dignity of the Crown on the one hand, and the rights and liberties of the
subject on the other.
The maxim that the Queen can do no wrong is a legal fiction
which, at common law, serves the purpose of preventing the Queen from being
impleaded in her own courts. There is, however, no comparable maxim that an
agent of the Queen can do no wrong.
The conclusion that a Crown agent is personally responsible for
an unlawful act still leaves the question whether the act is unlawful. Where
the unlawfulness or the wrongfulness of the act arises without any recourse to
a statute, the Crown’s immunity from statute, as expressed in s. 16 of the Interpretation
Act, is irrelevant. If, for example, the agent commits a tortious act, it
is the common law which characterizes it as unlawful. There is no immunity that
the agent can claim.
Where the only source of the unlawfulness is a statute, however,
the analysis is entirely different. Reference to a statute is necessary for
criminal responsibility in Canada, apart from contempt of court, because s. 8
of the Criminal Code precludes any conviction for an offence at common
law. If a person commits an act prohibited by statute, and the Attorney General
seeks to prosecute for violation of that statute, the preliminary question that
must be asked is whether that person is bound by the statute. If not, the
person simply does not commit a violation of the statute. The situation is not
that the person is immune from prosecution even though there has been an
unlawful act;
[Page 565]
rather, that there has been no unlawful act under the
statute. I have already said that the Combines Investigation Act does
not bind the Crown. If Uranium Canada and Eldorado share the Crown’s immunity,
they can have committed no offence under the Act.
Both the majority and the dissent in the 1959 CBC case, supra,
accepted that proposition of law that s. 16 of the Interpretation Act
extends to agents of the Crown. This Court’s decision in Formea Chemicals
Ltd. v. Polymer Corporation Ltd., [1968] S.C.R. 754 also makes it clear
that a reference to the Crown in a statute extends to Crown agents. If this
were not the interpretation given to s. 16, the section would have no
meaning, since the Crown only acts through servants and agents. Crown agents
benefit from Crown immunity because they are acting on behalf of the Crown. The
critical question, then, is whether Uranium Canada and Eldorado were acting as
agents.
Uranium Canada and Eldorado are each, by statute, expressly made
“an agent of Her Majesty”. Uranium Canada owes its status as a Crown agent to
s. 10(4) of the Atomic Energy Control Act, which reads:
A company is for all its purposes an agent of Her Majesty
and its powers may be exercised only as an agent of Her Majesty.
Eldorado’s agency status derives from the Government Companies
Operation Act, R.S.C. 1970, c. G-7; section 3 reads:
Every Company is for all its purposes an agent of Her
Majesty and its powers may be exercised only as an agent of Her Majesty.
The fact that these statutory provisions make each of the
respondent Corporations “for all its purposes” an agent of the Crown does not
mean, however, that these Companies act as Crown agents in everything they do.
Statutory bodies such as Uranium Canada and Eldorado are created
for limited purposes. When a Crown agent acts within the scope of the public
[Page 566]
purposes it is statutorily empowered to pursue, it is entitled to
Crown immunity from the operation of statutes, because it is acting on behalf
of the Crown. When the agent steps outside the ambit of Crown purposes,
however, it acts personally, and not on behalf of the state, and cannot claim
to be immune as an agent of the Crown. This follows from the fact that s. 16 of
the Interpretation Act works for the benefit of the state, not for the
benefit of the agent personally. Only the Crown, through its agents, and for
its purposes, is immune from the Combines Investigation Act.
This Court recently adopted this approach in Canadian
Broadcasting Corporation v. The Queen, [1983] 1 S.C.R. 339 (the 1983 CBC
case), where the CBC sought immunity in relation to charges of showing an
obscene film contrary to s. 159(1)(a) of the Criminal Code. The
CBC is established under the Broadcasting Act, R.S.C. 1970, c. B-l 1;
section 40(1) of that Act provides as follows:
Except as provided in subsection 38(3), the Corporation
is, for all purposes of this Act, an agent of Her Majesty, and its power under
this Act may be exercised only as an agent of Her Majesty.
This Court upheld the decision of the Ontario Court of Appeal
that the CBC could be prosecuted under the Criminal Code,
notwithstanding it was an agent of the Crown. In the Court of Appeal and here,
the key to this result was a Regulation promulgated under the Broadcasting
Act which prohibited the broadcast of any “obscene, indecent or profane…
presentation”. The CBC was charged with breach of the Criminal Code, not
with breach of the Broadcasting Regulations, but the Regulation was important
because the Broadcasting Act made the Corporation a Crown agent “for all
purposes of this Act”, and the Regulation demonstrated that in broadcasting an
obscene film the Corporation was not acting for purposes entrusted to it under
the Act. This Court expressly adopted the following passage from the judgment
of the Ontario Court of Appeal (at p. 353):
[Page 567]
In my view, when the Corporation exercises its powers with a
view to carrying out the purposes of the Broadcasting Act, it acts as
agent of Her Majesty and only as agent of Her Majesty. But, when it exercises
its powers in a manner inconsistent with the purposes of the Act, it steps
outside its agency role. That role subsists only so long as the Corporation’s
broadcasts are implementing the policy laid down in the Act. This seems to me
to be the effect of s. 40(1).
When the present proceedings were before the Ontario Court of
Appeal this Court had not rendered judgment in the 1983 CBC case. The
Court of Appeal distinguished its own decision in that case on the basis that
the Broadcasting Act makes the CBC a Crown agent “for all purposes of
this Act” while the Atomic Energy Control Act and the Government
Companies Operation Act make each of the respondents in this appeal an agent of
the Crown “for all its purposes”. The Court of Appeal thought the latter words
were broader than the words of the Broadcasting Act, and under the
statutory provisions at issue here “there are no limits on the status of the
agency”.
With respect, I disagree. The Broadcasting Act uses the
words “purposes of this Act” in the agency clause because the CBC is
established by the Broadcasting Act and derives its corporate objects
and powers from that Act (ss. 34(1), 39). Uranium Canada and Eldorado, on the
other hand, are not created by the Atomic Energy Control Act or the Government
Companies Operation Act, but are incorporated under the Canada
Corporations Act and receive their corporate objects and powers from that
statute and from their letters patent. Under these circumstances, it would be
inappropriate for the Atomic Energy Control Act or the Government
Companies Operation Act to refer to the “purposes of this Act” in the
agency clauses. For this reason I cannot accept that the difference in wording
has the significance the Ontario Court of Appeal attributed to it. In my
opinion, any limitations that might be imposed on the CBC’s agency status by
the words “purposes of this Act” are also imposed on the agency of
[Page 568]
Uranium Canada and Eldorado by the words “its purposes”. That
being so, the 1983 CBC case makes the same point as the present one: a
Crown agent is entitled to the benefit of the immunity afforded by s. 16 of the
Interpretation Act only when it acts within the scope of the Crown
purposes it is authorized to serve.
I think it is also important to draw a distinction between (i)
acts committed in the course of fulfilling Crown purposes but in no way
undertaken in order to effect Crown purposes; and (ii) those acts committed
which are designed to effect Crown purposes. Whereas the latter situation does
invoke Crown immunity, the former does not. I refer, by way of illustration, to
R. v. Stradiotto, [1973] 2 O.R. 375 (C.A.). In that case a member of the
militia was charged with careless driving under the Ontario Highway
Traffic Act. At the time, Stradiotto was driving a Department of National
Defence vehicle while in his official militia duties. The Ontario Court of
Appeal rejected the claim of Crown immunity on the basis that Stradiotto could
have effected Crown purposes without violating The Highway Traffic Act.
I agree with the result reached in Stradiotto, but not with the reasoning
of the Ontario Court of Appeal. In my view, the reason Crown immunity could not
be invoked was that the careless driving was wholly incidental to official
militia purposes. The careless driving was in no manner in the furtherance of
the Crown purposes of the militia. In driving carelessly, Stradiotto stepped
outside Crown purposes and no longer was acting as agent. Accordingly, he could
not claim immunity.
Against this background, can it be said that the acts alleged in
the indictments here in question fall within the purposes of Uranium Canada and
[Page 569]
Eldorado? I will deal firstly with Uranium Canada.
Section 10(1) of the Atomic Energy Control Act
provides that the Minister responsible for the Act may:
(b) with the approval of the Governor in Council,
utilize, cause to be utilized and prepare for the utilization of atomic energy;
(c) with the approval of the Governor in Council,
acquire, or cause to be acquired by purchase, lease, requisition or
expropriation, prescribed substances and any mines, deposits or claims of
prescribed substances and patent rights relating to atomic energy and any works
or property for production or preparation for production of, or for research or
investigation with respect to, atomic energy;
Section 10(2)(a) of the Act gives the Minister
authority to procure the incorporation of companies under Part I of the Canada
Corporations Act, R.S.C. 1970, c. C-32 , for the purpose of exercising and
performing on behalf of the Minister such of the powers conferred upon him by
s. 10(1) of the Atomic Energy Control Act as the Minister may from time
to time direct.
Part I of the Canada Corporations Act , referred to in s.
10(2)(a) of the Atomic Energy Control Act, deals with the
formation of new companies, and makes provision for matters typically dealt
with in business corporation statutes, such as the powers and duties of
companies, transfer of shares, alteration or reduction of share capital, calls,
borrowing powers, and so on.
On June 21, 1971 Uranium Canada was incorporated under Part I of
the Canada Corporations Act by the Minister of Energy, Mines and
Resources pursuant to his powers under s. 10(2) of the Atomic Energy Control
Act. The Company’s letters patent set out its objects as follows:
(a) to exercise and perform on behalf of the Minister of
Energy, Mines & Resources the powers, respon-
[Page 570]
sibilities, duties and obligations that may be imposed upon
the Company pursuant to contracts to be entered into with the approval of the
Governor in Council pursuant to the authority of Vote L-11 c of the
Appropriation Act No. 1, 1971;
(b) to exercise and perform such other powers conferred on
the Minister by subsection 1 of section 10 of the Atomic Energy
Control Act, 1946, as amended by S.C. 1954, chapter 47, as the Minister may from
time to time direct.
By supplementary letters patent issued June 10, 1975, Uranium Canada’s objects were amended by adding thereto paragraph (c) which reads:
to negotiate, execute and perform agreements for the
purchase, stockpiling and sale of uranium concentrates and to do or procure the
doing of anything necessary or incidental thereto, all subject to the approval
of the Governor in Council.
Vote L-11c referred to in paragraph (a) of the Company’s objects
is as follows:
Acquisition in fiscal years 1970-71, 1971-72, 1972-73,
1973-74 and 1974-75 of uranium concentrates in accordance with contracts to be
entered into, with the approval of the Governor in Council, with Denison Mines
Limited including authority to sell the uranium concentrates acquired under the
said contracts and to appoint a sales agent for such purpose.
During the period covered by the charges in this case all the
shares of Uranium Canada, except qualifying shares of the directors, were held
by the Minister of Energy, Mines and Resources in trust for Her Majesty in
right of Canada. All of the Company’s directors and officers were senior
officials in various departments and branches of government, including External
Affairs; Energy, Mines and Resources; Finance; Industry, Trade and Commerce;
Justice; the Privy Council Office; and the Natural Sciences and Engineering
Research Council. Uranium Canada conducts its affairs in, and has no place of
business separate from, the offices of the Department of Energy, Mines and
Resources. It has no employees of its
[Page 571]
own. Its total assets are $9 received in payment for directors’
qualifying shares.
In broad terms, Uranium Canada’s corporate functions are to buy
and sell uranium and related products with the approval of the Governor in
Council, and to exercise such other powers with respect to the acquisition,
production and utilization of uranium as the Minister may direct. Uranium Canada
is “for all its purposes” an agent of the Crown. The question that arises is
whether entering into a conspiracy or arrangement to reduce competition in the
production, sale or supply of uranium is within Uranium Canada’s corporate
objects and “purposes”. On this point the Court of Appeal said:
It can be seen that the respondents are charged with doing
acts which by their objects they are authorized to perform. Assuming, as we
must, for the purposes of the appeal that the respondent companies performed
the acts attributed to them in the indictment then the performance of those
acts prima facie fell within the powers conferred on them by their
objects clauses and their authorizing legislation.
I have no doubt marketing arrangements relating to uranium come
within the powers conferred by paragraph (c) of Uranium Canada’s letters
patent. They cannot be said to be incidental to the Company’s powers. Such
powers, however, are to be exercised “subject to the approval of the Governor
in Council”. Mr. Justice J. Holland concluded on the basis of the relevant
legislation and the affidavits filed on the application that Uranium Canada is
a Crown agent incorporated for the single purpose of carrying out the policy of
the government of Canada relating to atomic energy, and that in so doing it
operated under the directing mind of the Minister of Energy, Mines and
Resources, and with the approval of the Governor in Council. Nothing in the
records indicates otherwise. Whether Uranium Canada acted with or without
government approval is important because the Atomic Energy Control Act
provides that Uranium Canada is a Crown agent “for all its purposes”, not that
it is a Crown agent in whatever it does. If Uranium Canada performed the acts
complained of in the information with the approval
[Page 572]
of the Governor in Council, it acted within “its purposes” and is
entitled to immunity as a Crown agent. If, on the other hand, it acted without
such approval, it acted outside “its purposes”, and beyond the scope of its
agency, and cannot claim to be immune on the basis that it entered the alleged
combine on behalf of the Crown.
I turn now to the other respondent. Eldorado Mining and Refining
(1944) Limited was incorporated by Letters Patent on June 30, 1945, under Part
I of The Companies Act, 1934. In 1952 the Company’s name was
changed to Eldorado Mining and Refining Limited, and in 1968 changed again to
Eldorado Nuclear Limited—Eldorado Nucléaire Limitée. By 1964-65 (Can.), c. 52,
s. 2, the short title of the Companies Act was changed to the Canada
Corporations Act ; thereafter Eldorado was incorporated under Part I of the Canada
Corporations Act . Eldorado’s corporate objects and purposes read in part:
To acquire, own, lease, prospect for, open, explore,
develop, work, improve, maintain and manage mines and mineral lands and
deposits, and to dig for, raise, crush, wash, smelt, assay, analyze, reduce,
amalgamate, refine, pipe, convey and otherwise treat ores, metals and minerals,
whether belonging to the company or not, and to render the same merchantable
and to sell or otherwise dispose of the same or any part thereof or interest
therein;
In 1968, by supplementary letters patent, the following was added
to the above description of the Company’s objects:
and to purchase, lease, mine, refine, process and sell
uranium, zirconium or any other material or equipment relative to the nuclear
industry;
All of Eldorado’s issued shares are owned by, or held in trust
for, Her Majesty in right of Canada. Hence Eldorado comes within the definition
of “company” in the Government Companies Operation Act, R.S.C. 1970, c.
G-7 (as amended by 1974-75-76 (Can.), c. 33, s. 265 (Item 4)), which
reads:
[Page 573]
“Company” means a company incorporated under Part I of the Canada
Corporations Act , or a corporation incorporated under the Canada
Business Corporations Act, all the issued shares of which are owned by or
held in trust for Her Majesty in right of Canada except, in the case of a
company incorporated under Part I of the Canada Corporations Act , shares
necessary to qualify other persons as directors;
Section 6 of the same Act provides:
This Act applies to a Company only from the date of the
issue of a proclamation by the Governor in Council declaring this Act to be
applicable to such Company.
On or about August 1, 1946, the Governor in Council issued a
proclamation directing that the Government Companies Operation Act be
applicable to Eldorado Mining and Refining (1944) Limited, which, as indicated
above, subsequently became Eldorado Nuclear Limited. It is s. 3 of the Government
Companies Operation Act that makes Eldorado “for all its purposes” an agent
of Her Majesty.
As with Uranium Canada, agreements relating to the sale and
supply of uranium fall within Eldorado’s corporate objects. I note, however,
that unlike Uranium Canada, Eldorado’s corporate objects do not restrict it to
acting with the approval of the Minister or the Governor in Council. Whatever
the de facto relationship between Eldorado and the government may be,
the Company’s corporate objects clauses and the relevant statutes leave it free
to operate without government direction.
Does Eldorado’s independence in any way affect its right to claim
Crown immunity? At common law the question whether a person is an agent or
servant of the Crown depends on the degree of control which the Crown, through
its ministers, can exercise over the performance of his or its duties. The
greater the control, the more likely it is that the person will be recognized
as a Crown agent. Where a person, human or corporate, exercises substantial
discretion, independent of ministerial control, the common law denies Crown
[Page 574]
agency status. The question is not how much independence the
person has in fact, but how much he can assert by reason of the terms of
appointment and nature of the official: Bank voor Handel en Scheepvaart N.V.
v. Administrator of Hungarian Property, [1954] A.C. 584 at pp. 616-17, and
see Hogg, Liability of the Crown, 1971, p. 207. While Uranium Canada
would easily meet the common law test of Crown agency, since it needs approval
of the Governor in Council for what it does, I think it is clear that the common
law would not recognize Eldorado as a Crown agent since it does not meet the de
jure control test. I do not, however, think that this deprives Eldorado of
the right of Crown immunity when acting within its corporate purposes.
The position at common law is not that those under de jure
control are entitled to Crown immunity, but rather that immunity extends to
those acting on behalf of the Crown. In Metropolitan Meat Industry Board v.
Sheedy, [1927] A.C. 899, the Privy Council found the Board not to be a Crown
agent because “there is nothing in the statute which makes the acts of
administration his [the Minister’s] as distinguished from theirs” (p. 905). Sheedy
is not an immunity case, rather, the question was whether Crown priority could
be asserted in a liquidation. Nevertheless, it does indicate that the de
jure test applies only in the absence of specific language indicating the
body acts on behalf of or as an agent of the Crown. See also Tamlin v.
Hannaford, [1950] 1 K.B. 18 (C.A.). A case such as British Columbia
Power Corp. v. Attorney-General of British Columbia (1962), 34 D.L.R. (2d)
25, is easily distinguishable. In that case the statutory designation of Crown
agent was held not to be conclusive, because the statute did not say “for all
its purposes”. The majority concluded the statute made the Power Corporation an
agent only for some
[Page 575]
purposes, not including the matter at issue in that appeal.
This Court’s decision in Formea Chemicals Ltd. v. Polymer
Corporation Ltd., supra, is also instructive. The case concerned s. 19 of
the Patent Act, R.S.C. 1952, c. 203.
The Government of Canada may, at any time, use any patented
invention, paying to the patentee such sum as the Commissioner reports to be a
reasonable compensation for the use thereof, and any decision of the
Commissioner under this section is subject to appeal to the Exchequer
Court.
Martland J., speaking for the Court, equated “Government of
Canada” with the Crown. Polymer, like Eldorado, was made, for all its purposes,
an agent of the Crown, though not under de jure control. Nonetheless,
Polymer was held entitled to take advantage of s. 19.
In my opinion the Crown, under s. 19, has an unrestricted
right to use a patent. It caused the respondent [Polymer] to be incorporated to
manufacture, sell and deal in synthetic rubber and made the respondent, for all
its purposes, its agent. The use by the respondent of the patent was, in the
circumstances, a use by the Crown within s. 19. This being so, there was no
infringement by the respondent of such patent [at p. 764].
The “agent for all its purposes” designation was held to be
determinative; there was no inquiry into the actual independence of Polymer. I
think this case makes it clear that when an enactment refers to the Crown, and
a particular body is expressly made a Crown agent for all purposes, the
enactment embraces the statutory agent. This applies to the construction of
s. 16 of the Interpretation Act.
I also note that in the 1959 CBC case, supra, the
CBC was by statute an agent:
The Corporation is for all purposes of this Act an agent of
Her Majesty and its powers under this Act may be exercised only as an agent of
Her Majesty.
As noted in Locke J.’s concurring judgment, the CBC was not under
the regulation or direction of
[Page 576]
any department of government. Nevertheless, the majority found
the CBC entitled to immunity. The dissenting members of the Court agreed that
if the Crown had been immune under the Lord’s Day Act, that immunity
would have extended to the CBC.
The major difference between Uranium Canada and Eldorado is that
while the former is closely controlled by government, the latter, at least on
paper, is not. Yet the statutory provisions making both corporations Crown
agents for all their purposes are identical. I do not think it is admissible,
without rewriting the statutes, to interpret these identical provisions
differently. The status of Crown agents “for all its purposes” gives each such
agent the benefit of Crown immunity under s. 16 of the Interpretation Act.
The draftsmen of the governing statutes of Uranium Canada and Eldorado may well
have been thinking of immunity from taxing statutes rather than criminal
statutes, but the result is that there is immunity from both as long as the
corporations are acting within their respective authorized purposes.
The Attorney General’s “lawful Crown purposes” argument has
already been met by the conclusion that the two respondents are not bound by
the Combines Investigation Act when acting within authorized purposes,
so they cannot commit a violation of that Act when so acting. One additional
point ought to be made. The Attorney General contended that neither respondent
was given authority to contravene the Combines Investigation Act and
therefore Crown immunity was not available; Crown immunity would apply only if
there were statutory authority to contravene the Combines Investigation Act.
With respect, I do not think this is an appropriate form of analysis. Statutory
authority to commit an act that would otherwise be illegal, does not, it seems
to me, invoke Crown immunity. It gives rise to a defence of statutory
justification. A defence of statutory
[Page 577]
justification can be raised by any person, whether or not a Crown
agent. This is conceptually and analytically distant from Crown immunity.
IV Were the Prohibition Orders Premature?
There is nothing in the statutory framework or in the letters
patent of either Company to suggest that agreements or arrangements to lessen
competition in the production, sale or supply of uranium are extraneous to the
state purposes for which the two Companies were incorporated.
The Attorney General says, however, the prohibition orders in
this case were premature because the question whether either Company exceeded
its authority is a factual matter to be determined only upon evidence the
Attorney General will lead in proof of the charges at the preliminary inquiry,
and at subsequent trial if either Company should be committed for trial.
The Attorney General does not make any positive assertion that
Uranium Canada acted without approval of the Governor in Council. If the
Attorney General had evidence to this effect, or other evidence tending to show
that Uranium Canada or Eldorado acted for other than Crown purposes, he should
have so indicated by way of affidavit at the application before J. Holland J.
No such evidence was presented there, or alluded to here. This matter has now
been before three courts. In my opinion there is no merit in the submission
that the prohibition orders were premature. The Attorney General has had ample
opportunity to demonstrate, or at least assert categorically, that in entering
the allegedly unlawful agreements and combinations the two Companies acted for
other than Crown purposes. The Crown is immune from the Combines
Investigation Act; the respondents are agents of the Crown. Prima facie,
the conduct
[Page 578]
complained of is within the scope of Crown purposes for which the
Companies were incorporated, which, as found by J. Holland J., are to implement
national policy relating to atomic energy in all its aspects. Absent some
indication that the Companies acted outside corporate objects for other than
Crown purposes, they are immune from the terms of the Combines Investigation
Act as agents of the Crown, and the Provincial Court Judge lacked
jurisdiction to inquire into the charges. I would dismiss the appeals. No costs
are sought.
The reasons of Mclntyre and Wilson JJ. were delivered by
WILSON J. (dissenting in part)—I have had the benefit of
reading the reasons for judgment of my colleague, Dickson J., and must
respectfully disagree with his conclusion that both Eldorado Nuclear Limited
and Uranium Canada Limited are entitled to assert the Crown’s immunity from
prosecution under s. 32(1)(c) of the Combines Investigation Act,
R.S.C. 1970, c. C-23. In my view, only Uranium Canada is entitled to assert
such immunity.
The history of the proceedings is set out in my colleague’s
reasons for judgment and it is unnecessary for me to repeat it here. I agree
with my colleague’s conclusion that by virtue of s. 16 of the Interpretation
Act, R.S.C. 1970, c. I-23, the Crown is immune from prosecution under the Combines
Investigation Act. The issue before the Court however, as I see it, is
whether the respondent corporations can at this stage of the proceedings claim
the benefit of this immunity by virtue of their status as Crown agents.
Prima facie the resolution of this issue would appear to
involve a consideration of the alleged acts of the corporations in light of
their authorized objects and purposes. An inquiry would be
[Page 579]
required to determine whether or not such acts were within such
objects and purposes. It is submitted on behalf of the respondents, however,
that such an inquiry is unnecessary since the respondents are expressed in
their governing statutes to be for all their purposes agents of Her Majesty and
able to exercise their powers only as such. This, they say, means that no
matter what they do in carrying out their purposes, they are entitled to Her
Majesty’s immunity. Parliament has effectively equated their authority with
their capacity and the holding of a preliminary inquiry in these circumstances
would be a futile exercise.
Uranium Canada makes its claim to immunity on the basis of s.
10(4) of the Atomic Energy Control Act, R.S.C. 1970, c. A-19, which
reads:
A company is for all its purposes an agent of Her Majesty
and its powers may be exercised only as an agent of Her Majesty.
Eldorado’s claim is based on s. 3(1) of the Government
Companies Operation Act, R.S.C. 1970, c.G-7, which states:
Every Company is for all its purposes an agent of Her
Majesty and its powers may be exercised only as an agent of Her Majesty.
Do these statutory provisions, by making a conclusive legislative
pronouncement on the status of the respondents as Crown agents, also provide
them with a blanket immunity from prosecution under the Combines
Investigation Act for any acts which they might perform in furtherance of
their statutory mandate? With respect, I do not think so.
In my view the authorities governing the scope of immunity of
Crown agents demonstrate that the courts must apply a two-step test in
determining whether an agent of the Crown is entitled to assert the Crown’s
immunity. The first step is to decide whether the agent is authorized,
expressly or impliedly, to perform the acts in question. In making this
determination it is not enough to say that the purpose for which the
acts are performed is an authorized purpose; the Court must also determine that
the means which the agent uses to accomplish the purpose are expressly
or impliedly
[Page 580]
authorized. If as a matter of statutory interpretation the means
are authorized, the agent is entitled to immunity. If, however, there is no
such authorization, the Court must move to the second step. The second step is
to decide whether or not the agent is, for all intents and purposes, the alter
ego of the Crown. If because of the degree of control—and by this is meant de
jure as opposed to de facto control—which the Crown is able to exercise
over the agent it is impossible for the Court to characterize the agent’s act
as anything other than the act of the Crown, the agent is entitled to assert
Crown immunity whether or not its governing statute authorizes the means by
which the agent carries out its statutory purposes. If, however, the Crown does
not have that degree of control, the agent will not be entitled to assert the
immunity if the means it used are outside the purview of the statute. I turn to
the authorities.
In R. v. Stradiotto, [1973] 2 O.R. 375, a member of the
Canadian Armed Forces was held not to be immune from prosecution under the
Ontario Highway Traffic Act even although he was acting under orders in
the course of his employment. Evans J.A., writing for the Ontario Court of
Appeal, said at p. 377:
The question for determination may be briefly stated: Is a
servant of the Crown immune from prosecution under the Highway Traffic Act
when he drives a motor vehicle in a negligent manner while in the course of
carrying out orders which can be obeyed without driving carelessly?
He concluded that he was not. The Court conceded in Stradiotto
that if the soldier had been ordered to do the very act alleged to constitute
the offence, he would be immune from prosecution. Evans J.A. said at p. 379:
In my view, a distinction must be drawn between a breach of
the Highway Traffic Act which is required to be committed by a soldier
in order to carry out a military order and a breach of the statute which a
soldier commits during the course of carrying out his duties which duties,
however, can be properly discharged without committing a breach of the statute.
In Conseil des Ports Nationaux v. Langelier, [1969] S.C.R.
60, the respondents, who were
[Page 581]
owners of properties bordering on the St. Lawrence River,
petitioned for an injunction to restrain the National Harbours Board from
carrying out certain works on the river which they claimed would injuriously
affect their properties. The Board moved by way of declinatory exception to
dismiss the respondents’ petition on the ground that, being an agent of the
Crown, it was not subject to injunction. The exception was dismissed at trial
and the trial judgment was affirmed on appeal. The Board was granted leave to
appeal to this Court. Mr. Justice Martland, speaking for the Court, dealt
with the argument made on behalf of the Board that it was only capable of
acting as a Crown agent and therefore enjoyed all the immunities of the Crown.
He said at p. 70:
What is in issue here is the responsibility of a person,
whether individual or corporate, who, though a Crown agent, and purporting to
act as such, commits an act which is unlawful. My understanding of the law is
that a personal liability will result. The liability arises, not because he is
an agent of the Crown, but because, though he is an agent of the Crown, the
plea of Crown authority will not avail in such event.
After reviewing a number of authorities Martland J. stated at p.
72:
As Choquette J. has pointed out, in the reasons for judgment
of the Court of Appeal, s. 3(2) of the National Harbours Board Act declares
that the Board “shall be and be deemed to be, for all the purposes of this
Act, the agent of Her Majesty in right of Canada”. (The italicizing is my
own.) It is only when the Board is lawfully executing the powers entrusted to
it by the Act that it is deemed to be a Crown agent.
I am not prepared to accept the proposition enunciated in Wheeler
v. Public Works Commissioners, [1903] 2 I.R. 202, that a corporation
constituted for the sole purpose of doing acts for the Crown is not capable of
doing a wrongful act in its corporate capacity, unless that statement is to be
limited in its meaning to say that such a wrongful act is not authorized by its
corporate powers. Otherwise the statement subscribes to the theory that a
corporation cannot be made liable in tort because its corporate powers do not
authorize it to commit a wrong. In my opinion, if a corporation, in the
purported carrying out of its corporate purposes, commits a wrongful act, it is
liable therefor and it cannot
[Page 582]
escape liability by alleging that it is not responsible for
anything done outside its corporate powers. This is true whether it is
purporting to act as a Crown agent, or not.
The National Harbour Board’s appeal was dismissed.
It has been suggested that there is a distinction to be drawn
between the Crown’s immunity at common law from an action in tort and its
immunity from liability or prosecution under a statute by virtue of s. 16 of
the Interpretation Act and that the observations of Martland J. in Conseil
des Ports Nationaux are confined to the former situation. With respect, I
think this is to read down the principle applied by the learned justice in the
case. The plaintiff, it will be recalled, was not seeking to enjoin the
National Harbours Board from commission of a common law tort but from
commission of a délit as contemplated by arts. 1053 et seq. of
the Civil Code. Any immunity which the National Harbours Board was
seeking to assert must accordingly have included immunity from provisions of
the Civil Code.
Although a number of the cases upon which Martland J. relied
involved the liability of public officials for tortious acts at common law, I
do not believe that he intended to confine his remarks to common law liability.
Rather, he seems to have espoused the broader principle which he quoted from
Dicey on The Law of the Constitution (10th ed., 1959), p. 193 to the
effect that Crown agents are personally liable “for acts done in their official
character but in excess of their lawful authority”. As an example of such an
act he refers to the violation of the Civil Code by the Quebec Liquor
Commission in Roncarelli v. Duplessis, [1959] S.C.R. 121.
Moreover, I do not believe that it is sound in principle to draw
a distinction in the present context between wrongs which are recognized by the
common law and those which are created by statute. In Tobin v. The Queen
(1864), 33 L.J.C.P. 199, Erle C.J. explained the principle that “the
[Page 583]
king can do no wrong” in the following way at p. 205:
The maxim that “the king can do no wrong” is true in the
sense that he is not liable to be sued civilly or criminally for a supposed
wrong; that which the sovereign does personally the law presumes will not be
wrong; that which the sovereign does by command to his servants cannot be a
wrong in the sovereign, because if the command be unlawful, it is in law no
command, and the servant is responsible for the unlawful act in the same way as
if there had been no command.
(Emphasis added.)
The principle thus stated recognizes that the servants and agents
of the Crown are under an obligation to obey the law which is enforceable in
the courts even if the sovereign’s personal obligation to do so is not
enforceable in the same manner. To remove breaches of statute from the ambit of
this principle would create an enormous range of executive action which would
not be subject to independent judicial control.
Mr. Justice Estey, writing for the Court in the recent
decision in Canadian Broadcasting Corporation v. The Queen, [1983] 1
S.C.R. 339, seems to have approved the reasoning in both Conseil des Ports
Nationaux and Stradiotto. He stated at p. 343:
There is no doubt that in the existing state of the law
employees of the Crown are responsible for their own acts done in their
official character but in excess of their lawful authority.
And later he says at pp. 351-52:
The appellant is certainly in no better position than a
minister of the Crown. It is difficult to believe that after the great constitutional
struggles through which we and our forebears have gone to bring to an end the
concept of the absolute monarchy we are still faced with the defence of
absolute immunity by the monarch’s administration. Borrowing the words of
Martland J., in Conseil des Ports Nationaux, supra: “It is only when the
(Corporation) is lawfully executing the powers entrusted to it by the Act that
it is deemed to be the Crown agent” (at p. 72). When so acting and thereby
enjoying the status of Crown agent the immunities of the Crown flow through to
the agent for its benefit. Where, however, the Corporation is not acting “for
all purposes of this Act”
[Page 584]
or with reference to “its powers under this Act” the status
and the benefits of Crown agency disappear.
The attribution of Crown immunity to the appellant may be an
issue in circumstances not here before the Court and hence need not, for the
disposition of this appeal, be determined. However, even if Crown immunity may
be attributed to the appellant in some circumstances, and the actions of the
appellant in such circumstances attributed to the Crown, it does not
necessarily follow that the immunities attendant upon the status of Crown
agency will flow through to the benefit and protection of the appellant in all circumstances.
Here we have the Attorney General of the Province of Ontario prosecuting
charges under the federal Criminal Code against a corporation
established by the Parliament of Canada. The former brings the charges in the
course of its duty to enforce the criminal law in the province and the latter
is called upon to answer those charges by reason of its corporate existence and
responsibilities under the Broadcasting Act. There is no authorization
given by Parliament in its parent statute for the conduct of the appellant. The
law reveals no reason why Her Majesty as the fountainhead of justice should not
invoke the powers of the criminal courts to enforce a statute which expressly
makes Her Majesty’s agents subject to its terms. But even that is not the case
before us. There certainly can be no reason in law why the law enforcement
agencies should not bring before the criminal court a corporation, however
established, or any other person, where the conduct of that person, natural or
legal, offends the Criminal Code and is not expressly authorized by Act
of Parliament. We are not here concerned with whether the same principle would
apply to conduct expressly authorized by another legislature acting within its
plenary competence.
These cases seem to me to be authority for the proposition that
the fact that an individual or a corporation enjoys the status of an agent of
the Crown is not conclusive of his right to immunity. The agent will be
personally liable for acts carried out beyond the scope of his authority and
his authority must be closely examined in order to determine whether the means
he used in carrying out his mandate were authorized or not. Following the
approach taken by Evans J.A. in Stradiotto, I would find that where
there is no express authorization to perform the alleged acts, the courts
should presume that acts which violate the law are
[Page 585]
the unauthorized acts of the agent for which he will be
personally liable. The onus should be on the agent to show that he could not
carry out his mandate without the commission of such acts.
Without commenting on the correctness of their decision, I think
that the majority of this Court in Canadian Broadcasting Corporation v.
Attorney-General for Ontario, [1959] S.C.R. 188, took a similar approach to
the question of whether the C.B.C. was entitled to assert Crown immunity from
prosecution under the Lord’s Day Act, R.S.C. 1952, c. 171 (now R.S.C.
1970, c. L-13), for broadcasting on a Sunday. The statutory mandate in that
case was to “carry on a national broadcasting service within Canada”. The
majority treated that as a mandate to broadcast free of any limitation as to
time. Since it would frustrate the corporation in the exercise of its mandate
if the prohibition in the Lord’s Day Act applied to it, it had implied
authority to broadcast on a Sunday and was entitled to the immunity for so
doing.
By applying for an order of prohibition at this stage of the
proceedings the respondents in this case have made it impossible for the courts
to assess whether or not the acts alleged were necessary to enable the
respondents to carry out their statutory mandate.
It has been argued that by confining the scope of the Crown
agent’s immunity to those acts which were authorized the Court would be
destroying the principle of Crown immunity. The argument is that Crown agents
do not need immunity when they are carrying out acts within the scope of their
authority. Since the Crown can act only through agents, it is said, the
restriction of Crown immunity to the authorized acts of agents deprives the
immunity of any substance. With respect, I do not think that this is so. In my
view the common law authorities demonstrate that where the Crown agent’s
capacity to act was so circumscribed that any act done in the course of his duties
must be viewed as an act of the Crown itself, he was entitled to assert Crown
immunity. The test, as set
[Page 586]
out in the House of Lords’ decision in Bank voor Handel en
Scheepvaart N.V. v. Administrator of Hungarian Property, [1954] A.C. 584, is
whether the Crown exercises de jure control over the agent. As Lord Reid
put it at p. 617:
The question is not how much independence the [agent] in
fact enjoys but how much he can assert and insist on by reason of the terms of
his appointment or the nature of his office.
I do not see why the common law principle is not equally
applicable to individuals or corporations who have been designated by statute
as Crown agents. If those agents have the capacity to act for their own
purposes as well as for purposes of the Crown, they will be entitled to
immunity only to the extent that they act for purposes of the Crown. The fact
that they are designated by statute to be Crown agents for all their purposes
does not in my view preclude their acting for purposes of their own if they
have the capacity to do so. I believe that the authorities bear out this
analysis.
In British Columbia Power Corp. v. Attorney-General of British
Columbia (1962), 34 D.L.R. (2d) 25 (B.C.C.A.), the issue was whether a
public utility, the sole shareholder of which was the Crown in right of British
Columbia, was immune from discovery and inspection in a suit by former
shareholders. The utility claimed the immunity on the basis that under s. 6(1)
of the governing statute it was stated to be “an agent of Her Majesty the Queen
in right of the Province”. The Lieutenant-Governor in Council had the power to
appoint the directors of the utility and to name someone to exercise all the
powers, rights and duties of the Crown as a shareholder.
The utility argued that s. 6(1) made it an agent of the Crown
“for all purposes with power to act only as agent”. Sheppard J.A. said that he
had difficulty with that submission because it added words which were not
present in the section. Moreover, he pointed out at p. 31 of his reasons that
[Page 587]
even if those words had been in the section “the agency so
defined does not necessarily bring the agent within the immunity”. The issue
was whether the utility had “by the statute in question become an agent within
the prerogative” so as to be entitled to the Crown’s immunity. This had to be
determined by the true interpretation of the statute as a whole. Sheppard J.A.
said that:
In construing the statute, regard should be had to those
tests applied in determining whether or not there is such an agency as to come
within the prerogative of the Crown and the immunity from discovery.
He found that the utility was not entitled to the Crown’s
immunity.
In the course of his reasons Sheppard J.A. considered whether the
corporation had a contractual capacity apart from the Crown and he reviewed the
powers of the corporation, including the power to sue and be sued and the power
to enter into contracts in its own name. At page 35 he concluded that the
utility could aptly be described in the words of Lord Justice Denning (as he
then was) in Tamlin v. Hannaford, [1950] 1 K.B. 18, at p. 24:
In the eye of the law, the corporation is its own master and
is answerable as fully as any other person or corporation. It is not the Crown
and has none of the immunities or privileges of the Crown. Its servants are not
civil servants, and its property is not Crown property. It is as much bound by
Acts of Parliament as any other subject of the King. It is, of course, a public
authority and its purposes, no doubt, are public purposes, but it is not a
government department nor do its powers fall within the province of government.
DesBrisay C.J.B.C., the other member of the majority in the British
Columbia Power Corp. case, held that since s. 6(1) did not expressly
designate the utility as an agent of the Crown for all purposes, it was not
entitled to assert Crown immunity from discovery when it was acting pursuant to
the directions of the legislature rather than as agent of the Crown. In my
view, however, the reasoning of Sheppard J.A. embraces the broader principle
that a legislative pronouncement to the effect that a corporation is a Crown
agent
[Page 588]
for all its purposes does not deprive the corporation of the
capacity to act for purposes of its own as opposed to those of the Crown. For
example, in Conseil des Ports Nationaux the National Harbours Board had
been deemed a Crown agent for all the purposes of the National Harbours
Board Act. This did not prevent the courts from finding that the National
Harbours Board was sufficiently independent from the Crown that it could be
held personally liable for tortious acts committed in the course of carrying
out its mandate and that it could be enjoined from causing the plaintiffs
further injury through such acts.
I do not think that Metropolitan Meat Industry Board v.
Sheedy, [1927] A.C. 899, and Formea Chemicals Ltd. v. Polymer
Corporation Ltd., [1968] S.C.R. 754, are at all in conflict with this
reasoning. In Sheedy the Judicial Committee of the Privy Council
considered the question whether the Board was entitled to assert the Crown’s
priority in the collection of debts owed to it by a company in liquidation. The
court examined the legislation setting up the Board and found that it was a
body with discretionary powers of its own. Accordingly, it determined that the
Board could not be described as an agent of the Crown. The court observed at p.
905 that “Even if a Minister of the Crown has power to interfere with them [the
Board], there is nothing in the statute which makes the acts of administration
his as distinguished from theirs”. This observation, in my view, simply
confirms that, viewed as a whole, the statute could not be said to have
subjected the Board to the de jure control of the Crown.
In the Formea Chemicals case this Court addressed the
question of whether the respondent Crown corporation had infringed the
appellant’s patent. The majority of the Ontario Court of Appeal (per
McLennan J.A.) held that Formea could not maintain an action of patent infringement
against Polymer because the latter was immune from suit on the basis that it
was an agent
[Page 589]
of the Crown ([1967] 1 O.R. 546). Wells J.A. dissented.
Mr. Justice Martland, writing for this Court, held that
Formea’s appeal should be dismissed. He said at p. 758:
While I have reached the conclusion that the appeal fails,
my reasons are not the same as those of the majority in the Court of Appeal.
It is unnecessary to determine, in the circumstances of the
present case, what may be the liability of an agent of the Crown, which,
without lawful authority, infringes upon the rights of others. I do not base my
decision upon, nor do I adopt the general proposition that an action in tort
will not lie as against an agent of the Crown.
Mr. Justice Martland decided the case on the basis that s.
19 of the Patent Act which gave the Crown the right to use the patent
accrued to the benefit of Polymer because it was a Crown agent. He did not
approach the case as a claim of Crown immunity by Polymer but rather as a
question of the construction of s. 19 of the Patent Act to determine
whether the right conferred by it on the Crown was available to Crown agents.
This Court’s recent decision in Canadian Broadcasting
Corporation v. The Queen deals, in my view, with a somewhat different
situation. In that case the question was whether the C.B.C. could assert Crown
immunity from prosecution for broadcasting an obscene film. The Radio (T.V.)
Broadcasting Regulations expressly prohibited the broadcast of any
obscene presentation. The Court held that although the C.B.C. was by statute
declared to be a Crown agent for all its purposes, it could hardly be within
the scope of its purposes to present a film which the regulations prohibited it
from broadcasting. The fact that this analysis was apt for the case before the
Court does not in my estimation mean that the only way an agent who has been
designated by statute as a Crown agent for all purposes can forfeit Crown
immunity is by committing an act which lies outside the scope of its statutory
purposes.
[Page 590]
I would approach the issue in the present case by following the
path laid out by the authorities already referred to. How then do they apply?
In my view there is nothing in the governing statutes of either
of the respondents to indicate that they were expressly or impliedly authorized
to carry out their statutory purposes by engaging in violations of the Combines
Investigation Act. It may be that the respondents could mount a case that
the only way in which they could carry out their mandate effectively was
through the acts alleged by the Crown. This question is not, however, before
the Court at this stage of the proceedings and any resolution of the issue
would have to await the outcome of a factual inquiry. It seems to me,
therefore, that neither respondent can be said to be entitled at this stage to
assert Crown immunity under the first step of the two-step test for immunity i.e.
express or implied authorization.
Turning to step two—the de jure control test—I think that
a distinction must be drawn between Uranium Canada and Eldorado. Uranium Canada
operates under the direction of the Minister of Energy, Mines and Resources and
exercises its powers “subject to the approval of the Governor in Council”. The
identity between Uranium Canada and the Crown is accordingly just about as
close as it could be. If the Governor in Council approved the alleged illegal
acts of Uranium Canada I agree that Uranium Canada should be entitled to the
Crown’s immunity.
Eldorado, on the other hand, has a wide measure of latitude with
respect to the way in which it exercises its corporate powers. Indeed, I can
find nothing in the governing legislation or in its Letters Patent to require
it to respond to government directives. It is trite law that a corporation is a
separate entity from its shareholders and that it is to the corporation and not
the shareholders that the directors’ duties are owed. It seems to me,
therefore, that Eldorado’s capacity exceeds its authority as agent of the Crown
and that it can have “purposes” of its own. If this is so, I do not believe
[Page 591]
that its agency status is conclusive of its right to immunity.
The corporate powers of Eldorado are found in its Letters Patent
and Supplementary Letters Patent and in The Companies Act, 1934, 1934
(Can.), c. 33, pursuant to which it was incorporated. Under its principal
objects it has the usual powers of a mining company in relation to the
exploration for and development of mines and minerals. These powers were
expanded by Supplementary Letters Patent in 1968 to add:
and to purchase, lease, mine, refine, process and sell
uranium, zirconium or any other material or equipment relative to the nuclear
industry.
It also has extensive ancillary powers under both The
Companies Act, 1934 and the Government Companies Operation Act,
R.S.C. 1970, c. G-7, including the power to contract in its own name, employ
its own officers and servants, and sue and be sued in its own name.
There is nothing in the Letters Patent, Supplementary Letters
Patent or the governing statutes to permit the government or the Minister to
interfere with the operation of the corporation. I note, for example, that
pursuant to s. 73 of the Financial Administration Act, R.S.C. 1970, c.
F-10, “the Governor in Council may make regulations with respect to the
conditions upon which an agency corporation may undertake contractual
commitments”. An “agency corporation” means a corporation named in Schedule C
of the Act and Uranium Canada is a Schedule C corporation. Eldorado, however,
is a “proprietary corporation” or a Schedule D corporation for purposes of the
Act and no similar powers of interference in corporate operations is authorized
in respect of this type of Crown corporation. Article 8 of the Financial
Administration Act provides the government only with a certain element of
fiscal, as opposed to operational, control over proprietary or Schedule D
corporations. It is, in my view, quite unrealistic to treat Eldorado either as
a matter of fact or a
[Page 592]
matter of law as the alter ego of the Crown in exercising
all its powers.
In my view the preceding analysis is in accordance not only with
authority but with sound policy. It seems to me that when Parliament wishes to
give the executive the special powers and immunities it requires to carry out
particular government responsibilities, it should do so in clear and
unequivocal terms and not rely on either the common law doctrine of Crown
immunity or s. 16 of the Interpretation Act. I think this is
particularly true when it wishes to authorize illegal acts. I see no reason why
the Court should contribute to a weakening of Parliamentary control over the
executive branch of government by holding that a statutorily conferred agency
status is conclusive of the agent’s right to immunity.
I have serious doubts that Parliament ever intended the
respondents to have a carte blanche to engage in illegal activities on
behalf of the Crown and to encourage other citizens to do likewise. The words
of Taschereau J., dissenting in Canadian Broadcasting Corporation v.
Attorney-General of Ontario, supra, at p. 195 come readily to
mind:
I am quite satisfied that it never entered the mind of
Parliament that C.B.C. could not be reached by the statute, while all the other
private stations, not agents of the Crown, and which are now on an equal
footing with the appellant, would be amenable to the law.
We might ask in this case whether Parliament ever contemplated
that the respondents would go about the implementation of their statutory
purposes by means of an illegal conspiracy with others, counting on the
protection of their Crown immunity and leaving their co-conspirators to the
full rigours of the law. In the case of Uranium Canada we at least have the
comfort of knowing that the corporation is incapable of acting without the
approval of the Governor in Council. With respect to Eldorado we have no
comfort at all.
[Page 593]
For the reasons given I would dismiss the appeal with respect to
Uranium Canada and allow it with respect to Eldorado.
Appeals dismissed, MCINTYRE and WILSON
JJ. dissenting in part.
Solicitor for the appellant: Roger Tassé, Ottawa.
Solicitors for the respondent Eldorado Nuclear Ltd.: Aird
& Berlis, Toronto.
Solicitors for the respondent Uranium Canada Ltd.: Gowling
& Henderson, Ottawa.