Supreme Court of Canada
Lord's Day Alliance v. Attorney-General of British Columbia, [1959] S.C.R. 497
Date: 1959-04-28
The Lord's
Day Alliance Of Canada On Its Own Behalf And In Its Representative Capacity Appellant;
and
The Attorney
General Of British Columbia, City Of Vancouver And Vancouver Mounties Holdings
Ltd. On Its Own Behalf And In Its Representative Capacity Respondent.
1959: February 23, 24; 1959:
April 28.
Present: Kerwin C.J. and
Taschereau, Rand, Locke, Cartwright, Fauteux, Abbott, Martland and Judson JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR BRITISH COLUMBIA
Constitutional law—Validity
of provincial enactment authorizing municipality to permit Sunday sport—Permissive
enactment—Whether within exception of s. 6 of the Lord's Day Act, R.S.C. 1952,
c. 171—Whether criminal legislation—Whether delegation of authority—The
Criminal Code, 1953—54 (Can.), c. 51, ss. 7, 8, 11—The Constitutional Questions
Determination Act, R.S.B.C. 1948, c. 66.
By s. 14 of Bill 55, the British Columbia Legislature proposed
to amend the charter of the City of Vancouver by adding s. 206A thereto which
authorized the city council to pass a by-law specifying public games and
sports, other than horse-racing, that might be played in the city or parts
thereof for gain, or prize, or reward, within certain hours on Sunday
afternoons, and "which but for this section would be unlawful under … The
Lord's Day Act (Canada)". The Lieutenant-Governor in Council of British
Columbia referred to the Court of Appeal the question of the validity of the
proposed legislation. By a majority it was held to be intra vires.
[Page 498]
Held: The proposed legislation was intra vires
in its entirety.
Per Kerwin C.J. and Taschereau, Fauteux and Abbott JJ.:
(1) The Bill governed the conduct of people on Sunday and did not create an
offence against the criminal law. This permissive legislation fell within heads
13 or 16 of s. 92 of the British North America Act and was, therefore,
within the power of the provincial Legislature. This was not a case of delegation
where Parliament attempted to authorize a provincial legislature to do
something beyond the latter's power but within the competence of Parliament.
Section 6 of the Lord's Day Act does not apply to a province when it
chooses to permit a certain occurrence. Looking at the pith and substance of
the legislation, since in constitutional matters there is no general area of
criminal law, the Legislature was not prohibiting something but merely stating
in an affirmative manner that certain actions could be taken. The decision of
the Privy Council in Lord's Day Alliance of Canada v. Attorney General for
Manitoba, [1925] A.C. 384, completely covered the matter here in question
and could not be distinguished by reference to English statutes, as now there
are no criminal offences except those enacted by the Parliament of Canada.
(2) The point taken in the Court of Appeal, that the
Legislature had attempted to delegate its powers to the council of the
municipality was abandoned by the appellant, but, in any event, as was held by
the majority in the Court of Appeal, the by-law would be a provincial law
within s. 6 of the Lord's Day Act, R.S.C. 1952, c. 171.
Per Rand, Cartwright, Martland and Judson JJ.: Where a
certain activity, when engaged in on Sunday, is not at the time forbidden as a
criminal offence, the declaration by a provincial statute that it may be
indulged in on that day is a valid enactment and is an Act "in force"
within the meaning of those words in s. 6 of the Lord's Day Act: Lord's Day
Alliance of Canada v. Attorney General for Manitoba, supra. There are no
laws in force touching the observance of Sunday except the Lord's Day Act,
since s. 8 of the new Criminal Code came into force. There is no such
thing as a "domain" of criminal law. In a federal system,
distinctions must be made arising from the true object, purpose, nature, or
character, of each particular enactment. It is a misconception of the operation
of s. 6 of the Lord's Day Act to say that its effect was to create a
delegation of dominion power to the provinces. It cannot be open to serious
debate that Parliament can limit the operation of its own legislation and may
do so upon any event or condition.
Per Locke and Martland JJ.: The language of s. 6 as
well as that of ss. 4 and 7 of the Lord's Day Act shows that the
limitation of the prohibition applies not only to statutes passed prior to the
coming into force of the Act but also to those which might thereafter be
enacted. If therefore the province, in the exercise of its powers under heads 13
and 16 of s. 92 of the British North America Act, should permit the
activities in question, the prohibition did not extend to them. By reason of s.
8 of the new Criminal Code, the Imperial statutes referred to in
argument were no longer part of the law of British Columbia at the time the
amendment was passed. There was no question of the delegation of the power of
Parliament to the legislature, nor as to whether the provincial Act amended the
Lord's Day Act, nor
[Page 499]
of any adoption by the Dominion of the provincial legislation
by virtue of the language in s. 6. The amendment was a "provincial act or
law" within the meaning of ss. 4 and 6 of the Lord's Day Act.
APPEAL from a judgment of the
Court of Appeal for British Columbia, declaring, on a reference by the Lieutenant-Governor
in Council of British Columbia, that a proposed amendment to the Charter of the
City of Vancouver to permit Sunday sport was intra vires.
Appeal dismissed.
F. A. Brewin, Q.C., and R.
J. McMaster, for the appellant.
John J. Urie, for the
Attorney General of British Columbia, respondent.
J. W. de B. Farris, Q.C.,
and R. K. Baker, for the City of Vancouver, respondent.
W. R. Jackett, Q.C., and T.
B. Smith, for the Attorney General of Canada, intervenant.
W. B. Common, Q.C., for
the Attorney General of Ontario, intervenant.
The judgment of Kerwin C.J. and
Taschereau, Fauteux and Abbot JJ. was delivered by
THE CHIEF JUSTICE:—This is an
appeal by The Lord's Day Alliance of Canada on its own behalf and in its
representative capacity against a decision of the Court of Appeal of British Columbia on a reference directed to it by the Lieutenant-Governor
in Council of the Province. The question submited is:
Is Section 14 of Bill 55,
entitled "An Act to Amend the Vancouver Charter", or any of the
provisions thereof, and in what particular or particulars, or to what extent,
intra vires the Legislature of the Province?
Section 14 of the Bill referred
to provides:
14. The said Act is further
amended by inserting the following as Section 206A:
206A. (1) Notwithstanding
anything contained in the "Sunday Observance Act" or in any other
statute or law of the Province, where a by-law passed under subsection (2)
hereof is in force and subject to its provisions, it shall be lawful for any
person between half past one and six o'clock in the afternoon of the Lord's
Day, commonly called Sunday, to provide for or engage in any public game or
sport for gain, or for any prize or reward, or to be present at any performance
of such public game or sport at which any fee is charged, directly or
indirectly, either for
[Page 500]
admission to such
performance or to any place within which the same is provided, or for any
service or privilege thereat, that is specified in such by-law and which but
for this Section, would be unlawful under Section 6 of "The Lord's Day Act
(Canada)" or to do or engage any other person to do any work, business or
labour in connection with any such public game or sport which but for this
Section would be unlawful under Section 4 of "The Lord's Day Act
(Canada)".
(2) (a) The Council
may pass a by-law declaring subsection (1) to be in force throughout the city
or in such part or parts thereof as may be specified in the by-law and upon
such by-law coming into force, subsection (1) shall apply throughout the city
or in such specified part or parts as the case may be.
(b) the application
of subsection (1) shall be limited to such public games or sports as are
specified in the by-law.
(c) The by-law shall
not specify horse-racing as a public game or sport.
(d) Where subsection
(1) applies in specified parts of the city the limitation authorized by clause
(b) hereof may differ in different parts.
(e) The by-law may reduce
the period of time between half past one and six o'clock mentioned in subsection
(1).
(f) The by-law shall
provide for the regulation and control of the public games and sports specified
in it and may provide for the regulation and control of any matter or thing in
connection with such public games and sports.
(g) (i) No by-law passed
under this section shall be repealed until the following question has been
submitted to the electors, and a majority of affirmative votes obtained: Are
you in favour of the repeal of the by-law passed under the authority of the
Vancouver Charter that regulates public games and sports for gain on the Lord's
Day?
(ii) The Council may submit
the question set out above to the electors at any annual election.
(iii) Upon the presentation
of a petition requesting that the bylaw passed under this section be repealed,
signed by at least ten percent of the electors of the municipality, the Council
shall at the next annual election submit to the electors the question set out
in subclause (i).
(h) Any petition
mentioned in clause (g) (iii) above shall be deemed to be presented when
it is lodged with the City Clerk and the sufficiency of the petition shall be
determined by him, and his certificate as to its sufficiency shall be
conclusive for all purposes. Provided, however, that a petition that is lodged
with the City Clerk in the months of November or December shall be deemed to be
presented in the month of February next following.
Three members of the Court were
of opinion that the section was intra vires the provincial Legislature
and two that it was ultra vires. The later also certified that, in any
event, a by-law of the council of the City of Vancouver passed in pursuance of
any power or authority the Legislature might have under the provisions of the Lord's
Day Act, R.S.C. 1952, c. 171, would not be a provincial law within
[Page 501]
the meaning of the Lord's Day
Act. This last point was abandoned before us but, in any event, as was held
by the majority in the Court of Appeal, such a by-law would be a provincial
law. The Legislature is merely providing that, if the city council passes a by-law
under subs. (2), then subs. (1) takes effect.
The Legislature was purporting to
proceed under the powers conferred by the exception contained in s. 6 of the Lord's
Day Act:
6. (1) It is not lawful for
any person, on the Lord's Day, except as provided in any provincial Act or law
now or hereafter in force, to engage in any public game or contest for gain, or
for any prize or reward, or to be present thereat, or to provide, engage in, or
be present at any performance or public meeting, elsewhere than in a church, at
which any fee is charged, directly or indirectly, either for admission to such
performance or meeting, or to any place within which the same is provided, or
for any service or privilege thereat.
(2) When any performance at
which an admission fee or any other fee is so charged is provided in any
building or place to which persons are conveyed for hire by the proprietors or
managers of such performance or by any one acting as their agent or under their
control, the charge for such conveyance shall be deemed an indirect payment of
such fee within the meaning of this section.
In my view the matter is covered
completely by the judgment of the Judicial Committee in Lord's Day Alliance
of Canada v. Attorney General for Manitoba. Their
Lordships there considered their earlier judgment in Attorney General for
Ontario v. Hamilton Street Railway Co.,
where it was held that in circumstances arising before the enactment of the Lord's
Day Act in 1906 (Statutes of Canada, c. 27), the prohibition with sanctions
of certain activities on Sunday came within the heading of criminal law and
therefore within the exclusive legislative authority of the Parliament of
Canada. It was as a result of that decision that the Lord's Day Act was
enacted. Its effect was stated by Lord Blanesburgh in the Manitoba
case at p. 391 as follows:
The circumstances calling
for the Act supply clearly enough the explanation of its content. The Act is
laying down for the whole of Canada regulations for the observance of Sunday. Some
things on that day are everywhere prohibited; others are everywhere allowed.
But there is an intermediate class of activities—Sunday excursions are amongst
them—with reference to which the Act recognizes that differing views may prevail
in the respective Provinces of the Dominion, so varying in
[Page 502]
these Provinces are the
circumstances, usages and predominant religious beliefs of the people. The Act
proceeds to provide accordingly, putting it generally, that with reference to
these matters, Provincial views shall within a Province prevail. As Anglin J.
observed in Ouimet v. Bazin, 46 Can. S.C.R. 502, 530, this course was no
doubt adopted "to enable local bodies to deal with the peculiar
requirements of localities with which they would presumably be more familiar
and perhaps more in sympathy".
There is therefore reserved
to each Province power in these intermediate cases by (inter alia) "a
Provincial Act …hereafter in force" to exempt that Province from the
operation of the general prohibition in whole or in part.
Now, in their Lordships'
judgment, a Provincial Act passed subsequently to the passing of this statute,
if it is to be "in force" within the meaning of the reservation, must
be one effectively enacted by the Provincial Legislature, and the solution of
the problem whether the statute of Manitoba now under consideration, and in
particular s. 1, is in that sense of these words "in force" in the
Province, will be simplified if it be first asked whether or not it would have
been within the competence of the Legislature of Manitoba effectively to enact
it had there been on this subject of Sunday excursions no previous Dominion
legislation at all.
To this question no other
than an affirmative answer can, their Lordships think, be given. The argument
to the contrary proceeds upon a view of Attorney-General for Ontario v.
Hamilton Street Ry. Co. (1903) A.C. 524 decision, which they conceive is
not admissible. The Board, dealing there with the Ontario Act as a whole—as an
Act which created offences and imposed penalties for their commission—held that
such a statute was part of the criminal law, and, as such, exclusively within
the competence of the Parliament of Canada. But the Board was not considering
the power of a Provincial Legislature to recognize what may be called the non-observance
of Sunday as distinct from its assumption of power to enforce by penalties or
punishment the observance of that day. And the two things are very different.
Legislative permission to do on Sunday things or acts which persons of stricter
sabbatarian views might regard as Sabbath-breaking is no part of the criminal
law where the acts and things permitted had not previously been prohibited.
Such permission might aptly enough be described as a matter affecting
"civil rights in the Province" or as one of "a merely local
nature in the Province". Nor would such permission necessarily be otiose.
The borderline between the profanation of Sunday—which might at common law be
regarded as an offence and therefore within the criminal law—and the not
irrational observance of the day is very indistinct. It is a question with
reference to which there may be infinite diversity of opinion. Legislative
permission to do on Sunday a particular act or thing may, therefore, amount to
a useful pronouncement that within the Province the acts permitted are on the
one side of the line and not on the other. In the present case, as it happens,
no objection could have been taken to the section under consideration on the
ground that Sunday excursions were in Manitoba unlawful or criminal. They were not. They had never,
according to the present assumption, been specifically prohibited by the
Parliament of Canada. They were not unlawful by the laws of England
existing on July 15, 1870, from which day the Dominion Parliament, by 51 Vict.
c. 33, introduced into Manitoba such of these laws as related to matters within the
jurisdiction of the Parliament of Canada. It follows that, prior to the
Dominion Act of 1906, Sunday excursions were not in Manitoba the
subject of prohibition. Enacted, therefore, by the Provincial Legislature
before that statute, s. 1 of the Mani-
[Page 503]
toba Act of 1923 would, in
the opinion of their Lordships, have been intra vires and effective. The
section would have been "in force" in the Province in the fullest
meaning of these words, as found in the Act of 1906. And the section, if then
in "force", would have so continued notwithstanding the passing of
that Act. It would have been a "Provincial Act …now in force".
As Duff J. says in Ouimet
v. Bazin, 46 Can. S.C.R. 502, 526, when speaking of the Lord's Day Act,
1906: "This latter enactment appears to be framed upon the theory that the
provinces may pass laws governing the conduct of people on Sunday; and by the
express provisions of the Act such laws, if in force when the Act became law,
are not to be affected by it. That is a very different thing from saying that
in this Act the Dominion Parliament has manifested an intention to give the
force of law to legislation passed by a provincial legislature professing to do
what a province under its own powers of legislation cannot do, viz., to create
an offence against the criminal law within the meaning of the enactments of the
'British North America Act' already referred to". With those observations
the Board is in entire agreement.
To paraphrase the words of Duff
J., approved in the Manitoba case, s. 14 of Bill 55 governs the conduct of people
on Sunday and does not create an offence against the criminal law. It follows
that the permissive legislation here in question falls within Heads 13 or 16 of
s. 92 of the British North America Act and is, therefore, within the
power of the provincial Legislature. It is not a case of delegation where the
Dominion Parliament attempts to authorize a provincial legislature to do
something beyond the latter's power, but within the competence of Parliament,
such as occurred in Attorney General of Nova Scotia v. Attorney General of Canada. Section
6 of the Lord's Day Act merely provides that if a provincial legislature
chooses to permit a certain occurrence, then that section does not apply to the
particular province. In constitutional matters there is no general area of
criminal law and in every case the pith and substance of the legislation in
question must be looked at. This proposition is not inconsistent with anything
that was said in the judgment of this Court in Henry Birks & Sons v.
City of Montreal. Here the
Legislature is not prohibiting something but merely stating in an affirmative manner
that certain actions may be taken. This distinguishes the situation from that
which confronted this Court in Ouimet v. Bazin.
[Page 504]
It was sought to distinguish the Manitoba
case on historical grounds and reference was made to certain English statutes:
An Act for punishing Divers
Abuses Committed on the Lord's Day, called Sunday (1625) 1 Car. I, C. 1;
An Act for the further
Reformation of Sunday Abuses Committed on the Lord's Day, commonly called
Sunday (1627) 3 Car. II, C. 7;
An Act for the better
observation of the Lord's Day, commonly called Sunday (1626) 29 Car. II, C. 7;
An Act for preventing
certain Abuses and Profanation of the Lord's Day, called Sunday (1780) 21 Geo.
III, C. 49;
An Act to Amend the Laws in England
relative to Games (1831) 1 and 2 Will. IV, C. 32;
An Act to Repeal an
Exception in an Act of the Twenty-seventh Year of King Henry the Sixth
concerning the days whereon Fairs and Markets ought not to be kept (1850) 13
and 14 Vict., C. 23.
However, ss. 7 and 8 of the new Criminal
Code provide:
7. (1) The criminal law of
England that was in force in a province immediately before the coming into
force of this Act continues in force in the province except as altered, varied,
modified or affected by this Act or any other Act of the Parliament of Canada.
(2) Every rule and principle
of the common law that renders any circumstance a justification or excuse for
an act or a defence to a charge continues in force and applies in respect of
proceedings for an offence under this Act or any other Act of the Parliament of
Canada, except in so far as they are altered by or are inconsistent with this
Act or any other Act of the Parliament of Canada.
8. Notwithstanding anything
in this Act or any other Act no person shall be convicted
(a) of an offence at
common law,
(b) of an offence
under an Act of the Parliament of England, or of Great Britain, or of the
United Kingdom of Great Britain and Ireland, or
(c) of an offence
under an Act or ordinance in force in any province, territory or place before that
province, territory or place became a province of Canada,
but nothing in this section
affects the power, jurisdiction or authority that a court, judge, justice or
magistrate had, immediately before the coming into force of this Act, to impose
punishment for contempt of court.
The criminal law of England is
"altered", "varied", "modified" and
"affected" by s. 8 by providing that, notwithstanding anything in the
Code or any other Act, no person shall be convicted of an offence at common law,
or of an offence under any Act of the Parliament of England, or of Great
Britain, or of the United Kingdom of Great Britain and Ireland. There are,
therefore, no criminal offences, except those which are such by enactments of
the Parliament of Canada.
[Page 505]
The appeal should be dismissed
without costs.
The judgment of Rand, Cartwright,
Martland and Judson JJ. was delivered by
RAND J.:—This is an appeal from the majority answer given
by the Court of Appeal of British
Columbia to a question put to it by the Lieutenant-Governor
in Council of that province relating to a Bill proposing an amendment to the
Charter of Vancouver, introduced into the legislature and read a first time on February 26, 1958.
The Bill in part was in these terms:
14. The said Act is further
amended by inserting the following as section 206A:
(1) Notwithstanding anything
contained in the "Sunday Observance Act" or in any other statute or
law of the Province, where a by-law passed under subsection (2) hereof is in
force and subject to its provisions, it shall be lawful for any person between
half past one and six o'clock in the afternoon of the Lord's Day, commonly
called Sunday, to provide for or engage in any public game or sport for gain,
or for any prize or reward, or to be present at any performance of such public
game or sport at which any fee is charged, directly or indirectly, either for
admission to such performance or to any place within which the same is
provided, or for any service or privilege thereat, that is specified in such by-law
and which but for this Section, would be unlawful under Section 6 of "The Lord's
Day Act (Canada)" or to do or engage any other person to do any work,
business or labour in connection with any such public game or sport which but
for this Section would be unlawful under Section 4 of "The Lord's Day
Act (Canada)".
The question put was:
Is section 14 of Bill 55,
entitled "An Act to Amend the 'Vancouver Charter'," or any of the
provisions thereof, and in what particular or particulars, or to what extent,
intra vires the Legislature of the Province?
To this O'Halloran, Bird and
Davey JJ.A. answered that the Bill in its entirety was intra vires of
the province; Sidney Smith and Sheppard JJ.A. that it was ultra vires.
In the view I take of it, the
answer depends upon the nature or character of a provincial Act of a permissive
as contradistinguished from a prohibitory effect where there is no existing
prohibition of the activity which is the subject-matter of the Act and where
any repealing effect of which would be confined to matters
consequential or collateral to the prohibited matter or otherwise related to
but not directly aimed against the activity by reason of public policy on the
observance of Sunday in a religious aspect.
[Page 506]
On that matter we have two authoritative
pronouncements by the Judicial Committee: Attorney General for Ontario
v. The Hamilton Street Railway Company and The Lord's Day Alliance
v. Attorney General for Manitoba. The
former held that prohibitory provisions of an Act to Prevent the Profanation
of the Lord's Day enacted by the legislature of Ontario were ultra vires
as being within the area of criminal law exclusively committed to the Dominion
Parliament; in the latter a provision in a provincial Act passed in 1923 by the
Manitoba legislature by which it was declared that it "shall be
lawful", by any mode of conveyance, to run excursions to summer resorts,
beaches or camping grounds on Sunday, was within provincial power and valid.
This judgment, in my opinion, governs the present controversy and requires the
same answer.
Section 6 of the Lord's Day
Act, R.S.C. 1952, c. 171, deals with the subject-matter of the Bill here:
6. (1) It is not lawful for
any person, on the Lord's Day, except as provided in any provincial Act or
law now or hereafter in force, to engage in any public game or contest for
gain, or for any prize or reward, or to be present thereat, or to provide,
engage in, or be present at any performance or public meeting, elsewhere than
in a church, at which any fee is charged, directly or indirectly, either for
admission to such performance or meeting, or to any place within which the same
is provided, or for any service or privilege thereat.
The reasons of the Judicial
Committee in the Manitoba case were given by Lord Blanesburgh. Speaking of the
scope of the Dominion Act, he distributed the matters dealt with as (a)
certain acts absolutely forbidden, (b) certain left unaffected, and (c)
others specified in ss. 4, 6 and 7 lying within a controversial range on which
there are such differences of opinion that it would be legitimate to respect in
any particular area those there predominating. It was to give effect to them
that the language of exception contained in the sections mentioned was
designed: local attitudes so expressed were to prevail. On p. 391 in his own
words:
The Act is laying down for
the whole of Canada regulations for the observance of Sunday. Some
things on that day are everywhere prohibited; others are everywhere allowed.
But there is an intermediate class of activities—Sunday excursions are amongst
them—with reference to which
[Page 507]
the Act recognizes that
differing views may prevail in the respective Provinces of the Dominion, so
varying in these Provinces are the circumstances, usages and predominant religious
beliefs of the people. The Act proceeds to provide accordingly, putting it
generally, that with reference to these matters, Provincial views shall within
a Province prevail. As Anglin J. observed in Ouimet v. Bazin, 46 Can.
S.C.R. 502, 530, this course was no doubt adopted "to enable local bodies
to deal with the peculiar requirements of localities with which they would
presumably be more familiar and perhaps more in sympathy."
And at p. 392:
Legislative permission to do
on Sunday things or acts which persons of stricter sabbatarian views might
regard as Sabbath-breaking is no part of the criminal law where the acts and
things permitted had not previously been prohibited. Such permission might
aptly enough be described as a mater affecting "civil rights in the
Province" or as one of "a merely local nature in the Province."
Nor would such permission necessarily be otiose. The borderline between the
profanation of Sunday—which might at common law be regarded as an offence and
therefore within the criminal law—and the not irrational observance of the day
is very indistinct. It is a question with reference to which there may be
infinite diversity of opinion. Legislative permission to do on Sunday a
particular act or thing may, therefore, amount to a useful pronouncement that
within the Province the acts permitted are on the one side of the line and not
on the other…. It follows that, prior to the Dominion Act of 1906, Sunday
excursions were not in Manitoba the subject of prohibition. Enacted, therefore, by
the Provincial Legislature before that statute, s. 1 of the Manitoba Act of
1923 would, in the opinion of their Lordships, have been intra vires and
effective. The section would have been "in force" in the Province in
the fullest meaning of these words, as found in the Act of 1906.
I take that language to mean that
where a certain activity, when engaged in on Sunday, is not at the time, as a
criminal offence, forbidden, the declaration by a provincial statute that it
may be indulged in on that day is a valid enactment and is an Act "in
force" within the meaning of those words in s. 6 of the Lord's Day Act.
In other words, a positive declaration of a liberty to act in a particular
manner as the converse expression of the absence of any prohibition against it,
exhibiting impliedly the view on the matter of the exception provided in the
statute to be attributed to a province, as contemplated by s. 6, is a valid Act
in force. The conversion of a negative state of absence of prohibition of an
act into a positive assertion of permission to do that act is in substance a
"useful pronouncement" on a matter on which there may be an
"infinite diversity of opinion", a declaration "that within the
Province the acts permitted are on the one side of the
[Page 508]
line and not on the other",
and a sufficient subject-matter for the exercise of provincial legislative
power. This was in principle the argument presented in the Manitoba
appeal on behalf of the province when, as it appears at p. 386, it was urged by
counsel that "the Act of 1923 merely declared the common law." The
declaration was held also to be made as effectively by an Act passed
subsequently to 1906 as one in force at the time of passing the enactment of
that year.
It was argued by Mr. Brewin that
a sufficiently distinguishing circumstance between the Manitoba case and
that here lay in the fact that in that province prior to 1906 there was no law
against running excursions by conveyances but that in British Columbia the law
of England introduced in 1858 did forbid such games as those dealt with in the
Bill now proposed. I see no basis for that distinction as applied in the case
before us. The Criminal Code which came into force on April 1, 1955, by
declaring in s. 8 that "no person shall be convicted" of any offences
at common law or under an Act of the Parliament of England or of Great Britain
or of the United Kingdom of Great Britain and Ireland or under an Act or
ordinance in force in a province before it became a province of Canada has
effectually abolished all offences created otherwise than by the Parliament of
Canada. The provisions of the Act Respecting the Observance of Sunday,
R.S.B.C. 1948, c. 318, enacted originally in 1858 and continued as law in the
province by the Confederation Act of 1867 were thus repealed. At the
time of the introduction of the Bill there was, and on its enactment at any
subsequent time there will be, no law in force touching the observance of
Sunday except that of the Dominion Act of 1906. The situation in this respect
is then identical with that in Manitoba in 1923.
Into this branch of his argument
Mr. Brewin injected the idea of a "domain" of criminal law which, as
I understood it, was in some manner a defined area existing apart from the
actual body of offences at a particular moment; and that it was characterized
by certain distinguishing qualities. Undoubtedly criminal acts are those
forbidden by law, ordinarily at least if not necessarily accompanied by penal
sanctions, enacted to serve what is considered a
[Page 509]
public interest or to interdict
what is deemed a public harm or evil. In a unitary state the expression would
seem appropriate to most if not all such prohibitions; but in a federal system
distinctions must be made arising from the true object, purpose, nature or character
of each particular enactment. This is exemplified in Attorney General for
Quebec v. Canadian Federation of Agriculture,
in which certain prohibitions with penalties enacted by Parliament against
certain trade in margarine were held to be ultra vires as not being
within criminal law.
Beyond or apart from such broad
characteristics, of no practical significance here, which describe an area by
specifying certain elements inhering in criminal law enactments, no such
"domain" is recognized by our law. The language of Lord Blanesburgh
in the Manitoba case refers to "domain" as the body of
present prohibitions, the existing criminal law, and nothing else. The same
view expressed in Proprietary Articles Trade Association v. Attorney General
for Canadaby Lord Atkin will bear repeating:
The power must extend to
legislation to make new crimes. Criminal law connotes only the quality of such
acts or omissions as are prohibited under appropriate penal provisions by
authority of the State. The criminal quality of an act cannot be discerned by
intuition; nor can it be discovered by reference to any standard but one: Is
the act prohibited with penal consequences? …It appears to their Lordships to
be of little value to seek to confine crimes to a category of acts which by
their very nature belong to the domain of "criminal jurisprudence";
for the domain of criminal jurisprudence can only be ascertained by examining
what acts at any particular period are declared by the State to be crimes, and
the only common nature they will be found to possess is that they are
prohibited by the State and that those who commit them are punished.
There is nothing here of a domain
free from such mundane requirements.
It was argued finally that the
effect of the exception in s. 6 was to create a delegation of dominion power to
the province contrary to the holding of this Court in Attorney General for Nova Scotia v. Attorney General for Canada. The idea
of delegation arises from a misconception of the operation of s. 6. The
legislative efficacy in prohibiting the activity named is that solely of
Parliament; the effect of the exception is to declare that in the presence of a
[Page 510]
provincial enactment of the
appropriate character the scope of s. 6 automatically ceases to extend to the
provincial area covered by that enactment. The latter is a condition of fact in
relation to which Parliament itself has provided a limitation for its own
legislative act. That Parliament can so limit the operation of its own
legislation and that it may do so upon any such event or condition is not open
to serious debate.
I would, therefore, dismiss the
appeal. There will be no costs to any party.
The judgment of Locke and
Martland JJ. was delivered by
LOCKE J.:—The question referred
to the Court of Appeal under
the provisions of the Constitutional Questions Determination Act,
R.S.B.C. 1948, c. 66, reads:
Is Section 14 of Bill 55
entitled "An Act to amend the 'Vancouver Charter'," or any of the
provisions thereof, and in what particular or particulars, or to what extent, intra
vires the Legislature of the Province?
The terms of the section
mentioned are stated in other reasons to be given in this matter.
The answer to be made depends, in
my opinion, entirely upon the interpretation that is to be given to s.6 of the Lord's
Day Act, R.S.C. 1952, c. 171.
Subsection (1) of s. 6, so far as
it is necessary to consider its provisions, reads:
It is not lawful for any
person, on the Lord's Day, except as provided in any provincial Act or law now
or hereafter in force, to engage in any public game or contest for gain, or for
any prize or reward, or to be present thereat …
The prohibition, on the face of
it, does not purport to be absolute. Had the legislation in question been
passed prior to the coming into force of the Lord's Day Act and, if at
that time the Imperial statutes to which we have been referred had not been in
force in British Columbia, it would have been impossible to successfully
contend that the legislation was not intra vires the Legislature since,
by the very terms of s. 6, activities of the nature referred to in British
Columbia were not affected. This aspect of the matter was
[Page 511]
referred to by Lord Blanesburgh
in the judgment of the Judicial Committee in Lord's Day Alliance
v. Attorney General of Manitoba.
Subject to the powers given to
the legislature by head 15 of s. 92, the exclusive authority to legislate in
relation to the criminal law, except as to the constitution of courts of
criminal jurisdiction, is vested in Parliament by head 27 of s. 91. Parliament
cannot extend the jurisdiction of the legislature by delegation, A.G. N.S.
v. A.G. Canada,
nor by abstaining from legislating to the full extent of its powers in a field
in which its jurisdiction is exclusive, Union Colliery v. Bryden.
The language of s. 6 as well as
that of ss. 4 and 7 shows that the limitation of the application of these
sections applied not only to statutes passed prior to the coming into force of
the Act but also those which might thereafter be enacted. The words are "provincial
Act or law now or hereafter in force", which makes it perfectly clear that
if the province, in the exercise of its powers under heads 13 and 16 of s. 92
of the British North America Act should permit such activities, the
prohibition did not extend to them.
The Imperial statutes referred to
were no longer part of the law of British
Columbia at the time the amendment was
passed by reason of s. 8 of the new Criminal Code.
In my opinion, no question of the
delegation of the power of Parliament to the Legislature, nor as to whether the
provincial Act in some way amends the Lord's Day Act, nor of any
adoption by the Dominion of the Provincial legislation by virtue of the
language employed in s. 6, arises in the matter. The powers of the Legislature
which have been invoked are derived solely from s. 92. Section 6 of the Lord's
Day Act does not prohibit Sunday sports of the kind referred to in the
impugned legislation if the statute of the province, whensoever enacted,
permits them. The scope of the prohibition is limited by Parliament and no
question of conflict between the Dominion and the provincial legislation
arises.
[Page 512]
Sidney Smith and Sheppard JJ.A.,
who dissented from the view of the majority of the court, considered that the
amendment was not a "provincial Act or law" within the meaning of
that expression in ss. 4 and 6 of the Lord's Day Act. Counsel appearing
for the appellant before us said that he did not contend that the legislation
was invalid on this ground. This, however, does not relieve this Court of its
duty of considering the question. This is a reference— not an action.
The learned judges who dissented
considered that under the amendment it was the City by-law which was the
operative provision which permitted Sunday games and sports, and the Vancouver
City council, and not the Legislature, which was to decide whether or not these
should be permitted. The view of the majority was, however, that a provincial
Act—such as the present amendment—which becomes effective in a defined area upon
the passing of a municipal by-law in accordance with its terms, is a provincial
law within the meaning of s. 6. That was the view expressed by Dennistoun J.A.
in Rex v. Thompson.
I agree with the opinion of the
majority of the Court of Appeal. It is the amending section that declares that
it shall be lawful to engage in these activities when the conditions prescribed
have been complied with, and the Act as thus amended the authority for what is
done.
In my opinion, the legislation is
intra vires in its entirety and the answer to the question submitted
should be in the affirmative.
I would dismiss this appeal.
Appeal dismissed
without costs.
Solicitor for the
appellant: R. J. McMaster, Vancouver.
Solicitor for the Attorney
General of British Columbia, respondent: G. D. Kennedy, Victoria.
Solicitor for the City of Vancouver,
respondent: E. N. R. Elliott, Vancouver.
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