Dunphy v. Croft, [1931] SCR 531

Supreme Court of Canada

Dunphy v. Croft, [1931] S.C.R. 531

Date: 1931-06-30

Sylvester Dunphy (Plaintiff) Appellant;

and

E. R. Croft (Defendant) Respondent.

1931: February 16, 17; 1931: June 30.

Present: Duff, Newcombe, Rinfret, Lamont and Cannon JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA EN BANC

Constitutional law—Shipping—Revenue—Customs Act, R.S.C., 1927, c. 42 (as amended, 1928, c. 16), ss. 151, 207—Enactments with respect to vessels hovering within 12 marine miles of coast of Canada—Constitutional validity.

S. 151 (7) of the Customs Act, R.S.C., 1927, c. 42, as amended, 1928, c. 16, in so far as it enacts that “territorial waters of Canada” shall, for the purposes of ss. 151 and 207 of the Act as so amended (examination and seizure in respect of vessels hovering in territorial waters of Canada) include, in the case of any vessel registered in Canada, the waters within 12 marine miles of Canada, is ultra vires.

Judgment of the Supreme Court of Nova Scotia en banc, 2 M.P.R. 350, affirming judgment of Paton J. (ibid) upholding the legislation, reversed.

Newcombe and Cannon JJ. dissented, holding that the legislation was intra vires, in its application to the facts of the present case, and having regard to the purpose for which such legislation was invoked, namely, prevention of use of such vessels as depots for supply of intoxicating liquors to boats engaged in smuggling liquor into Canada.

APPEAL by the plaintiff from the judgment of the Supreme Court of Nova Scotia en banc[1], dismissing his appeal from the judgment of Paton J.1 dismissing the plaintiff’s action.

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The case arose out of the seizure of a schooner (registered at Digby, N.S.) owned by plaintiff, with a cargo of liquor (also owned by plaintiff) on board, on June 13, 1929, by a patrol boat in the employ of the Department of National Revenue of Canada, and of which the defendant was the commander. Plaintiff brought action for the return of the vessel and cargo, or payment of their value, and damages for their detention. The defence was that the vessel had dutiable goods on board, was “hovering” within twelve marine miles of the coast of Canada, and was liable to seizure under ss. 151 and 207 of the Customs Act, R.S.C., 1927, c. 42, as amended by c. 16 of the Acts of 1928. (The material parts of these sections are set out in the judgment of Newcombe J., dissenting, now reported.)

The case was tried before Paton J. with a jury. It was agreed between counsel that the only question to be submitted to the jury was whether the schooner at the time she was seized was within twelve marine miles of Flat Point Lighthouse (a lighthouse at the entrance to Sydney Harbour, in the county of Cape Breton, N.S.), and that all other questions of fact were to be decided by the judge. The jury found that the schooner was three-quarters of a mile inside the said limit. Paton J. made certain findings (inter alia) as to the use and conduct of the schooner, which are quoted or stated in the judgment of Newcombe J. (dissenting) now reported, and found that the schooner when seized was “hovering” within the meaning of that word as used in the Customs Act. It was contended on behalf of the plaintiff that the schooner and her cargo were seized upon the High Seas, and that the legislation invoked by the defendant as justifying the seizure was ultra vires of the Parliament of Canada. Paton J. held against this contention and dismissed the action[2]. The plaintiff appealed to the Supreme Court of Nova Scotia en banc, solely on the question of the power of the Parliament of Canada to enact the legislation in question. The Court en banc held that the Parliament of Canada had such power and dismissed the appeal2. The plaintiff appealed to the Supreme Court of Canada, and, by agreement between counsel, the only question argued was as to the validity of the legislation.

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D. A. Cameron K.C. for the appellant.

C. B. Smith K.C. and J. E. Read K.C. for the respondent.

The judgment of Duff and Lamont JJ. (with whose conclusion Rinfret J. also concurred) was delivered by

Duff J.—The phrase “peace, order and good government” is found generally in the English colonial charters, and, unless the constitution set up is federal or quasi federal, it commonly is employed to designate, as regards subject matter, the scope of the legislative authority conferred. It is an accepted principle that prima facie the jurisdiction of subordinate legislatures is territorially limited. It may be considered as axiomatic that a grant of legislative authority to a British colony for “the peace, order and good government” of the colony, does not, as a general rule, empower the colonial legislature to enact laws penalizing acts, otherwise lawful, done beyond the territory of the colony, or legalizing such acts when otherwise unlawful. Broadly, it may be laid down, as a rule of construction, that subordinate legislatures do not possess such extra-territorial jurisdiction unless it has been granted in express terms or by necessary implication. The restriction is a restriction of power, and enactments framed in disregard of it not only will be ignored by foreign countries, but will be treated as pro tanto inoperative by the courts of the colony itself; in this regard differing in its effect from the restrictions imposed upon a sovereign state by international law and the competing jurisdictions of other sovereign states, which, at the command of the supreme legislative authority of the state, will be ignored by its courts.

When the subject matter of a power possessed by the Crown falls within “peace, order and good government,” and is consequently within the scope of a grant of legislative authority by the Imperial Parliament, then, if that power necessarily involves, in its complete enjoyment, the authority to execute extra-territorial acts of sovereignty, such as acts of constraint upon the person, this

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complementary authority also passes with it. Attorney-General for Canada v. Cain[3] is an application of this principle.

I see no reason whatever to think that a general authority to detain and arrest ships extra-territorially, passes under the formula “peace, order and good government,” nor do I think that the fullest enjoyment of the powers given under the heads “Navigation and Shipping,” “Trade and Commerce,” and “Taxation” necessitates, in the pertinent sense, the possession of such authority. As a rule, indeed, legislative authority in respect of taxation is limited strictly, in its exercise, by the territorial boundaries. Commercial Cable Company v. Attorney-General of Newfoundland[4]. I shall assume that the question, under this topic, is precisely the same as if the regulation of imports were explicitly included among the enumerated items of section 91.

One must emphasize here the distinction between the necessity from which a legal implication proceeds, and those considerations which merely go to establish the convenience, amounting even, in judicial opinion, to practical necessity from the political point of view, of extending a power admittedly given. The law implies the grant of all proper means necessary for the execution of the power itself as given, but that is the only necessity of which, for this purpose, the law takes notice. The courts have no authority to extend the scope of an admitted power merely because the power as given is not sufficiently comprehensive to attain an object never so important or urgent, in the judicial view. The implied power must, to use the language of the Privy Council in Cain’s case3, be “the complement,” in the sense just explained, of the power expressly conferred. There is no general test for determining that this condition is satisfied, but it seems, abundantly clear that no such necessity can be affirmed of the power to maintain at large on the high seas a preventive service with authority to detain British ships destined for Canadian ports, for the purpose of ascertaining: whether they carry non-admissible goods or non-admissible persons. It is nothing to the purpose that the statute applies only to ships of Canadian registry. If the argument

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of the Crown is sound, the statute would be equally within the scope of Canadian jurisdiction if the reference to Canadian registry were absent. Nothing in Cain’s case[5] countenances such a procedure in relation to immigrants.

The judgment in Nadan’s case[6] exemplifies the rigour which governs the courts in examining this question of necessary implication. The subject of that judgment is the ambit and effect of the item of section 91 that is concerned with criminal law and criminal procedure. By that section, Parliament is empowered to make laws “in relation to” these subjects; and, within the territorial bounds of its jurisdiction, these powers are subject to no limitation or qualification. “But, however widely these powers are construed, they are confined to action to be taken in the Dominion.” Nadan v. The King[7].

Plenary legislative authority, for Canada, in relation to criminal law and procedure in the entire scope of those subjects, it might have been argued, not without force, would embrace authority to declare the finality of Canadian judgments and sentences in criminal proceedings; and that for the purpose of making such declarations effective, the legislative authority must extend so far as to enable Canada to deal with the operation, in Canada, of the jurisdiction of His Majesty in Council in respect of the review of colonial judicial proceedings. But since such a review by His Majesty’s order does not fall within the category of “action to be taken within the Dominion,” the principle of grant by necessary implication does not take effect. This is not the only ground of the judgment, but it is an independent one and of co-ordinate authority with the others.

There remains to consider the limitation of the enactment to ships of Canadian registry. This does not, so far as I can see, affect the matter. It may be assumed that section 735 of the Merchant Shipping Act presupposes colonial authority to establish a system of colonial registration and to prescribe conditions therefor; but I can find nothing in that section, which, by implication, creates or recognizes a general authority to regulate ships of colonial

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registry by requiring them to submit to such extra-territorial acts as those authorized by the legislation before us.

There is no occasion to consider the extent of the authority given or recognized by this section in relation to subject matters dealt with by the Merchant Shipping Act. Nor need we discuss the scope of such authority, in respect of conditions of registration, precedent or subsequent; that is not the character, in substance or in form, of the enactment with which we are concerned.

I do not enter upon a discussion of the effect of the Colonial Laws Validity Act. It would, I think, be a new reading, and, it would seem to me, a misreading, of that statute, to construe it as imparting extra-territorial validity to the enactments of a colonial legislature professing to operate extra-territorially, where the legislature is not otherwise endowed with power to pass such legislation.

In my view, the legislation is ultra vires.

The appeal should be allowed with costs and the action remitted to the Supreme Court of Nova Scotia to be disposed of in accordance with the view herein expressed.

Rinfret J.—I agree with Mr. Justice Duff that the impugned section is ultra vires and that the appeal should be allowed with costs and the action remitted to the Supreme Court of Nova Scotia to be disposed of in accordance with the view herein expressed.

The judgment of Newcombe and Cannon JJ., dissenting, was delivered by

Newcombe J.—The plaintiff, who is a master mariner, brings this action as owner of the schooner Dorothy M. Smart, registered at Digby, in Nova Scotia. The defendant is a Canadian customs officer, employed for the prevention of smuggling and the enforcement of the Customs Act, c. 42 of the R.S.C., 1927. The plaintiff alleges in his statement of claim that he “was engaged in the business of buying liquors for the purpose of sale upon the high seas,” having cleared from St. Pierre Miquelon, and that his vessel was seized by the defendant while lawfully engaged in that business. We are told in the statement of case that the seizure was made at a point eleven and one-quarter miles off Flat Point light (a lighthouse at the entrance of

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Sydney Harbour, in Cape Breton) by a patrol boat in the employ of the Department of National Revenue of Canada, and under the defendant’s command.

The defendant justifies the seizure under authority of s. 151 of the Customs Act, c. 42, R.S.C., 1927, as enacted by s. 1 of c. 16 of the Dominion Acts of 1928. The provisions of this section material to the case are as follows:

151. (1) If any vessel is hovering in territorial waters of Canada, any officer may go on board such vessel and examine her cargo and may also examine the master or person in command upon oath touching the cargo and voyage and may bring the vessel into port.

* * *

(7) For the purposes of this section and section two hundred and seven of this Act, “Territorial waters of Canada,” shall mean the waters forming part of the territory of the Dominion of Canada and the waters adjacent to the Dominion within three marine miles thereof, in the case of any vessel, and within twelve marine miles thereof, in the case of any vessel registered in Canada.

By s. 207, as enacted by c. 16 of 1928, it is provided that

If upon the examination by any officer of the cargo of any vessel hovering in territorial waters of Canada, any dutiable goods or any goods the importation of which into Canada is prohibited are found on board, such vessel with her apparel, rigging, tackle, furniture, stores and cargo shall be seized and forfeited * * *.

The action was tried by Paton J., of the Supreme Court of Nova Scotia, who found that the vessel cleared on 8th June, 1929, from St. Pierre Miquelon, for the high seas, with a cargo of assorted liquor and rum; the particular destination being a place about fifteen miles northeast of the lighthouse, and the nearest point of land to a vessel lying in that direction; that, on the night of 12th June the vessel arrived at its destination, “and from that time until the next afternoon about four o’clock, it was jogging about in various directions, waiting for customers to come out in boats from shore.” The learned judge also found that

There is no doubt the intention was to remain in such proximity to the coast as would enable customers or purchasers, under the cover of darkness or fog, to smuggle the liquor into Canada. Since the adoption of prohibition in Nova Scotia, Halifax is the only entry port in Nova Scotia for alcoholic liquors, and lawful importation could not be made at North Sydney nor at Sydney.

The plaintiff, as owner of the schooner and cargo, and his captain must have known, and I find they did know, that any liquor that might be sold could only be to persons desiring to smuggle it into this country.

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The learned judge upheld the legislation and dismissed the action[8]. His judgment was unanimously affirmed by the Supreme Court en banc8; and it now comes before this Court upon the single objection that the above quoted provisions of the Customs Act are ultra vires of the parliament of Canada.

There is no question of international or of alien rights. The plaintiff is a British subject resident at North Sydney, in Nova Scotia; and his schooner is registered in the same province. It is not suggested that the Dominion legislation conflicts with provincial powers. The rights, such as they are, are all intra familiam. All that is conceded. But what the plaintiff seeks to justify in opposition to the Customs Act, the executive power and the preventive service of Canada, is the use of his vessel upon the outer margin of Canadian territorial waters, contiguous to his place of residence, as a depot of supply of intoxicating liquors to boats engaged in the smuggling of the liquor into the province.

If the defendant were a pirate prowling on the coast, or if he were, in time of war, using his vessel to supply an enemy squadron attempting to blockade the port of Sydney, is it conceivable that the powers of the parliament of Canada would be found inadequate to sanction the seizure? Parliament is specifically empowered to legislate for the regulation of trade and commerce, the raising of money by any mode or system of taxation, defence, navigation and shipping and the criminal law; also to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the legislatures of the provinces; and there are, moreover, the latent powers which, as explained in Toronto Electric Commissioners v. Snider[9], are exercisable in cases of emergency.

The Hovering Acts of Great Britain have been justified in principle and practice, and the enactments now in contest exemplify provisions which are reasonable, and, it seems, necessary, for the protection of the country.

The Act to remove Doubts as to the Validity of Colonial Laws, c. 63 of the United Kingdom, 1865, which is

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described by Mr. Dicey as the charter of colonial legislative independence (Law of the Constitution, 8th ed., p. 101), enacts, by sec. 2, that

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 1 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.

There is no repugnancy found or suggested as between the legislation upon which the Crown relies and any imperial Act, order or regulation having force or effect in Canada; and, therefore, whatever operation sees. 151 and 207 of the Canadian Customs Act may have, it would seem, according to express enactment, that they shall not “be and remain absolutely void and inoperative.”

It is unnecessary to repeat the well known rule enunciated by Lord Selborne in The Queen v. Bur ah[10], and restated in Hodge v. The Queen[11].

Upon the reference to this Court of the Bigamy Sections of the Criminal Code[12], the point considered was whether these sections were, by reason of their extra-territorial operation, ultra vires of the Dominion to legislate for the criminal law, and the legislation was upheld by the majority of the court; but the learned Chief Justice (Strong), although he dissented in the particular case, gave expression in his judgment to the view which, I think, is not controverted, that

As the Imperial Parliament is a sovereign legislature I do not for a moment dispute the proposition that it may confer upon a colonial legislature powers in this respect co-equal with its own, by granting it authority to enact the personal liability of all British subjects resident within its jurisdiction, or indeed of all British subjects generally, for crimes committed without the jurisdiction. The question to be dealt with here is not as to the power of Parliament in this respect, but as to whether such authority has actually been conferred[13].

Referring to the general powers of the Dominion to legislate for the peace, order and good government of Canada, Lord Halsbury held in Riel v. The Queen[14], that these words “are apt to authorize the utmost discretion of

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enactment for the attainment of the objects pointed to.” And by the preamble of the British North America Act, 1867, it is recited that the project is union of the provinces under the Crown, “with a constitution similar in principle to that of the United Kingdom,” and that “such a union would conduce to the welfare of the provinces and promote the interests of the British Empire.”

The case, as submitted, does not disclose the port of departure of the plaintiff’s vessel upon the voyage to St. Pierre Miquelon for the lading of the cargo in respect of which the seizure took place; but, seeing that both the plaintiff and his vessel were locally situate in Nova Scotia, it is not a violent presumption that they cleared, or at any rate went, from that province upon the voyage in question. When, therefore, a British subject resident and being in Canada sets himself up to defeat the Customs laws by contriving to evade them, to defraud the revenue and illegally to introduce into the country a prohibited commodity which has been found a menace to the national life, threatening disaster; and when the Parliament of Canada, having the powers to which I have alluded, finds a remedy in the enactments of which the appellant complains, is that not, in the words of Lord Selborne, in the case of this Dominion, constituted as it is, “legislation within the general scope of the affirmative words which give the power” to legislate for the peace, order and good government of Canada? Certainly, “it violates no express condition or restriction by which that power is limited”; and any limitation, to be effective, must, according to the rule laid down, be express. It may also be regarded as significant that, while the enumerations of provincial powers in sec. 92 of the British North America Act, 1867, are usually, or not infrequently, qualified by the words “in the province,” or a like restriction, there is not, in a single instance, a corresponding qualification to be found in sec. 91, which describes the powers of parliament.

I conclude therefore that the legislation now the subject of attack is, in its application to the facts of this case, intra vires, and that this appeal should be dismissed.

Appeal allowed with costs.

Solicitor for the appellant: D. A. Cameron.

Solicitors for the respondent: Henry, Stewart, Smith & McCleave.