Regional Municipality of Peel v. Mackenzie et al., [1982] 2 SCR 9

Supreme Court of Canada

Regional Municipality of Peel v. Mackenzie et al., [1982] 2 S.C.R. 9

Date: 1982-07-22

The Regional Municipality of Peel Appellant;

and

Thomas MacKenzie and Viking Houses, a Division of Marshall Children’s Foundation Respondents;

and

The Attorney General of Canada, the Attorney General for Ontario and the Attorney General of Quebec Interveners.

File No.: 16212.

1981: December 3; 1982: July 22.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, Mclntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Constitutional law—Juvenile delinquents—Municipalities—Support of child—Federal Act authorizing a court to order a municipality to pay for the support of a juvenile delinquent—Whether provision necessarily incidental to Parliament’s criminal law power—Juvenile Delinquents Act, R.S.C. 1970, c. J-3, s. 20(1),(2)—British North America Act, 1867 , s. 91(27) , 92(8) .

This appeal is concerned with the validity of a provincial judge’s custody order, under s. 20 of the Juvenile Delinquents Act, which directed the appellant municipality to which the delinquent child belongs to contribute to the child’s support. Appellant appealed unsuccessfully to Ontario’s Supreme Court and Court of Appeal. The issue before this Court is whether the enactment of s. 20(2), in so far as it purports to authorize the imposition by Court order of a financial burden on municipalities, was ancillary to and necessarily incidental to the proper exercise by Parliament of its legislative power under s. 91(27)  of the British North America Act, 1867 .

Held: The appeal should be allowed.

Parliament did not have the authority to enact s. 20(2), in so far as it is made applicable to municipalities. This was not legislation in relation to criminal law or criminal procedure, and it was not truly necessary for the effective exercise of Parliament’s legislative authority in these fields. Municipalities are under the legisla-

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tive control of provincial legislatures (s. 92(8) B.N.A. Act). The effect of s. 20(2) in so far as it relates to municipalities, was to alter the role of municipal institutions not only with respect to financial matters but also with respect to their duty toward persons found within their boundaries. This was an indirect amendment to provincial legislation respecting municipalities and it could not be justified in the absence of a direct link with federal legislative power under s. 91(27). Here, there was no direct link between the municipality “to which the child belongs” and the issue of the child’s criminality. The obligation sought to be imposed on the municipality arises only after the criminal proceedings have been completed and sentence has been imposed.

Attorney General of British Columbia v. Smith, [1967] S.C.R. 702; Toronto Transportation Commission v. Canadian National Railways and City of Toronto, [1930] S.C.R. 94; Toronto Railway Co. v. Corporation of the City of Toronto, [1920] A.C. 426; Corporation of the City of Toronto v. Canadian Pacific Railway Co., [1908] A.C. 54; County of Carleton v. City of Ottawa (1909), 41 S.C.R. 552; City of Toronto v. Grand Trunk Railway Co. (1906), 37 S.C.R. 232; R. v. Zelensky, [1978] 2 S.C.R. 940; Corporation of the City of Toronto v. The King, [1932] A.C. 98, distinguished; Fowler v. The Queen, [1980] 2 S.C.R. 213; Reference re Troops in Cape Breton, [1930] S.C.R. 554, considered; Regional Municipality of Peel v. Viking Houses (1977), 16 O.R. (2d) 632, affirmed 16 O.R. (2d) 765 (C.A.); Re Dunne, [1962] O.R. 595, overruled; R. v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario (1980), 29 O.R. (2d) 439, 113 D.L.R. (3d) 350, dismissing appellant’s appeal from a judgment of Van Camp J., upholding a custody order made pursuant to s. 20 of the Juvenile Delinquents Act. Appeal allowed.

J. Edgar Sexton, Q.C., and Brian Morgan, for the appellant.

Ian G. Scott, Q.C., for the respondents.

E.G. Ewaschuk, Q.C., for the intervener the Attorney General of Canada.

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T.H. Wickett, Q.C., for the intervener the Attorney General for Ontario.

Jean-K. Samson and Lorraine Pilette, for the intervener the Attorney General of Quebec.

The judgment of the Court was delivered by

MARTLAND J.—This appeal is concerned with the validity of an order dated July 26, 1977, made under the provisions of the Juvenile Delinquents Act, R.S.C. 1970, c. J-3, by a provincial judge, which committed the custody of Tracey Jean Nash, who had been adjudged to be a juvenile delinquent, to the respondent Thomas MacKenzie, who is a supervisor with the respondent Viking Houses. The judge directed that he should put the child in a Viking House near Peterborough. The municipality was directed, pursuant to s. 20(2) of the Act, to pay the sum of $43 per day for her support in the Viking House. The appellant’s appeal against this order to a judge of the Supreme Court of Ontario was dismissed and a further appeal to the Appeal Court for Ontario was also dismissed. Leave was given for an appeal to this Court.

Tracey Jean Nash had been adjudged to be a juvenile delinquent in a previous proceeding before the same judge on April 7, 1977, and had been placed in the custody of Viking Houses. On April 21, 1977, Holland J. gave judgment in another case (Regional Municipality of Peel v. Viking Houses (1977), 16 O.R. (2d) 632) in which he held that a family court judge had no jurisdiction to place a juvenile delinquent in Viking Houses or any similar group home. This judgment was affirmed by the Ontario Court of Appeal ((1977), 16 O.R. (2d) 765) and by this Court ([1979] 2 S.C.R. 1134).

As a result of the judgment of Holland J. in that case, Tracey Jean Nash was brought back before the provincial judge by Viking Houses. At the hearing, counsel for Viking Houses proposed that custody of the child be given to the respondent Thomas MacKenzie and that he would formally place the child in the Viking Houses group home at which she had been staying. The appellant

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objected on the ground that such an order would simply be a device to circumvent the judgment of Holland J. in the previous case.

The Court awarded care and custody of the child to the respondent MacKenzie but directed him not to remove the child from the Viking House near Peterborough without the permission of the Court. It was ordered that the money payable by the appellant should be paid to the respondent MacKenzie at the Toronto address of the respondent Viking Houses.

On the appeal to the Court of Appeal the appellant raised the issue of the constitutional validity of s. 20(2) of the Juvenile Delinquents Act in so far as it purported to authorize the Court to order the municipality to which a delinquent child belongs to contribute to the child’s support.

This issue had been raised in the earlier case of Regional Municipality of Peel v. Viking Houses, mentioned previously. Holland J., in that case, at p. 651, held that s. 20(2) was intra vires of the Parliament of Canada to enact “as being ancillary to and necessarily incidental to the proper exercise by the Parliament of Canada of its criminal legislative power pursuant to s. 91(27)  of the British North America Act, 1867 .” The Court of Appeal, in that case, also mentioned the constitutional validity of the subsection in the following terms (at p. 768): “In our view s. 20(2)  is a necessary part of the effective operation of the entire statute and was validly enacted by Parliament under its powers in relation to criminal law”.

The constitutional validity of s. 20(2) was not decided on the appeal to this Court as the Court had determined, without deciding that issue, that the respondent municipalities were entitled to the relief which they sought.

In the present case, in view of the judgment of the Court of Appeal in the earlier case, the constitutional question was not addressed in oral argument before that Court, but the issue was raised by the appellant in its factum and both parties affirmed their positions in their factums. The

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matter was therefore open for consideration on the appeal to this Court.

The constitutional question before this Court was stated by the Chief Justice in the following terms:

Is subsection 2 of section 20 of the Juvenile Delinquents Act, R.S.C. 1970, Chapter J-3, in so far as it purports to authorize the imposition by Court Order of a financial burden on municipalities for the support of Juvenile Delinquents in furtherance of an Order made under subsection 1 of section 20, within the legislative competence of the Parliament of Canada?

On the argument of the appeal, submissions were made on behalf of the Attorneys General of Canada and Ontario in support of the validity of the legislation and by the Attorney General of Quebec contesting its validity.

Section 20 of the Juvenile Delinquents Act provides as follows:

20. (1) In the case of a child adjudged to be a juvenile delinquent the court may, in its discretion, take either one or more of the several courses of action hereinafter in this section set out, as it may in its judgment deem proper in the circumstances of the case:

(a) suspend final disposition;

(b) adjourn the hearing or disposition of the case from time to time for any definite or indefinite period;

(c) impose a fine not exceeding twenty-five dollars, which may be paid in periodical amounts or otherwise;

(d) commit the child to the care or custody of a probation officer or of any other suitable person;

(e) allow the child to remain in its home, subject to the visitation of a probation officer, such child to report to the court or to the probation officer as often as may be required;

(f) cause the child to be placed in a suitable family home as a foster home, subject to the friendly supervision of a probation officer and the further order of the court;

(g) impose upon the delinquent such further or other conditions as may be deemed advisable;

(h) commit the child to the charge of any children’s aid society, duly organized under an Act of the legislature of the province and approved by the lieutenant governor in council, or, in any municipality in which

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there is no children’s aid society, to the charge of the superintendent, if there is one; or

(i) commit the child to an industrial school duly approved by the lieutenant governor in council.

(2) In every such case it is within the power of the court to make an order upon the parent or parents of the child, or upon the municipality to which the child belongs, to contribute to the child’s support such sum as the court may determine, and where such order is made upon the municipality, the municipality may from time to time recover from the parent or parents any sum or sums paid by it pursuant to such order.

...

The appellant’s submission relates only to subs. (2) and solely in relation to the provisions of that subsection respecting the obligation which may be imposed upon a municipality.

The position taken by the respondents is that the subsection could properly be enacted by the Parliament of Canada by virtue of its power under s. 91(27)  of the Constitution Act, 1867 , to legislate in relation to:

27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

It was contended, in the alternative, that the subsection could be sustained as being ancillary to subsection (1) which is a valid exercise of Parliament’s legislative authority.

The submission of the appellant is that the imposition of financial obligations upon a municipality for support of a juvenile delinquent is not legislation in relation to criminal law and that it cannot be regarded as necessarily incidental to legislation in the field of criminal law.

The respondent relies upon the judgment of this Court in Attorney General of British Columbia v. Smith [1967] S.C.R. 702. In that case the main question was as to whether the whole of the Juvenile Delinquents Act was intra vires of the Parliament of Canada to enact as being valid criminal legislation. The Court unanimously decided that it was. Fauteux J. (as he then was), who delivered the judgment of the Court, said at p. 713:

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With deference to those who entertain a contrary view, I am clearly of opinion that, in its true nature and character, the Act, far from being legislation adopted under the guise of criminal law to encroach on subjects reserved to the provinces, is genuine legislation in relation to criminal law in its comprehensive sense.

This is the statement of a conclusion that the true nature and character of the Act is legislation in relation to criminal law. This is not contested by the appellant. The appellant’s contention is that one particular portion of the Act, i.e. s. 20(2), in so far as it relates to municipalities, is not criminal law legislation.

The respondent points out that Fauteux J. in his reasons gave a general outline of the main operative provisions of the Act and referred at p. 709 to the courses open to the court after a child had been adjudged to be a delinquent:.

…a variety of exceptional courses of action,—primarily meant to assist, help, encourage, supervise and reform the delinquent rather than to punish him,—which, upon the child being adjudged to be a juvenile delinquent, may be taken by the judge in the light of the opinion he forms as to both the child’s own good and the community’s best interest;

The respondent seeks to interpret this as being an approval of the constitutional validity of s. 20(2). However, Fauteux J., in outlining generally the provisions of the Act, made no reference to the provision contained in s. 20(2). The reference, above quoted, is to the provisions of s. 20(1), the constitutional validity of which is not challenged. The issue raised in the present appeal did not arise in the Smith case, was never argued in that case and, in my opinion, was not dealt with in the judgment in that case.

The respondent submits the proposition that: “This Court and the Privy Council have consistently upheld the constitutional validity of legislation in which Parliament, acting pursuant to an admitted head of power under s. 91, has imposed some portion of the expense of administering the legislation on parties obtaining benefit from it”.

Counsel for the respondent has correctly limited his proposition to cases in which parties obtain benefit from it. The cases cited to support the

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proposition are cases in which the Board of Railway Commissioners, when dealing with applications to construct bridges or overpasses and similar works, has required a party deriving benefit from the work constructed to contribute toward its cost[1].

The situation in the present case is not in any way similar. The appellant, to use counsel’s own words, is not “a party obtaining any benefit” from the Juvenile Delinquents Act or from any court order made pursuant to s. 20(1). Section 20(2) imposes an obligation for which there is no corresponding benefit.

In the earlier case of Regional Municipality of Peel v. Viking Houses, Holland J. held that s. 20(2) was constitutionally valid as being ancillary to and necessarily incidental to the proper exercise by Parliament of its criminal legislative power; I read the conclusions stated by the Court of Appeal in that case as being based upon that ground—it “is a necessary part of the effective operation of the entire statute”.

A similar view had been expressed earlier by Schatz J. in Re Dunne, [1962] O.R. 595.

Unless it were held to be necessarily incidental to the exercise of Parliament’s legislative authority in the field of criminal law, in the enactment of the Juvenile Delinquents Act, it would not be possible to support the constitutional validity of the subsection. It is designed to come into operation only after the trial has occurred, the accused has been found to be a juvenile delinquent and the Court has decided as to the disposition of the delinquent child. It is not a part of the definition of the offence, of the procedures to be followed or of the penalties which may be imposed. What it seeks to do is to impose upon municipalities the financial burden of contributing toward the support of a delinquent child who has already been tried, convicted and made subject to the disposition pre-

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scribed in the Court order. In my opinion this is not, per se, legislation in relation to criminal law.

The respondent cited the decision in R. v. Zelensky, [1978] 2 S.C.R. 940 in which this Court upheld the constitutional validity of s. 653 of the Criminal Code which empowers a court which has convicted an accused of an indictable offence to order the accused to pay to a person aggrieved an amount by way of satisfaction or compensation for loss of or damage to property suffered as a result of the commission of the offence. This conclusion was reached on the basis that s. 653 was a part of the sentencing process.

There is no analogy between s. 653 and s. 20(2). Section 653 is part of the sentencing process and the liability to pay is imposed upon the accused. Section 20(2) operates after the sentencing process is complete and imposes the liability to pay, not on the accused, but upon a third party.

The issue to be determined in this appeal is, therefore, whether the enactment of s. 20(2) was, as Holland J. put it, ancillary to and necessarily incidental to the proper exercise by Parliament of its legislative power.

The respondent contends that the function of the Court is to review the impugned provision in the context of the overall legislative scheme and to uphold its validity if the provision is “if not essential at least incidental to the power to legislate on criminal matters, for it may well go to the efficacy of such legislation”. The quoted words appear at p. 104 of the judgment of the Privy Council in Corporation of the City of Toronto v. The King, [1932] A.C. 98. These words must however be read in their context. The issue in that case was as to the validity of the proviso to s.1036(1) of the Criminal Code which directed that, in the Province of Ontario, fines were to be paid over to a municipal or local authority bearing, in whole or in part, the expense of administering the law under which the fine was imposed. The passage from the judgment reads as follows:

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Turning now to s. 91 of the British North America Act, their Lordships find that “notwithstanding anything in this Act,” and therefore notwithstanding the provisions of s. 109, “the exclusive legislative authority of the Parliament of Canada extends to all matters coming within… the criminal law.” Plainly, and indeed admittedly, this confers on the Dominion Parliament the exclusive right by legislation to create and define crimes and to impose penalties for their commission. In their Lordships’ opinion it no less empowers the Dominion legislature to direct how penalties for infraction of the criminal law shall be applied. It has always been regarded as within the scope of criminal legislation to make provision for the disposal of penalties inflicted, as innumerable instances show, and the power to do so is, if not essential, at least incidental, to the power to legislate on criminal matters for it may well go to the efficacy of such legislation.

The Privy Council in that case decided only that Parliament, which under the criminal law power had authority to impose fines, could direct that they be paid to municipalities which bore the expense of administering the law. The case is of little assistance in determining whether Parliament having created a legislative scheme in respect of the trial and disposition of juvenile delinquents could impose upon municipalities the financial burden of supporting juvenile delinquents after their conviction.

There have been two recent cases in this Court which have referred to the extent of Parliament’s authority to enact ancillary legislation. In R. v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695, Pigeon J., who wrote the reasons of the majority, said, at p. 713, that the ancillary power doctrine is limited to what is truly necessary for the effective exercise of Parliament’s legislative authority. There was no expression of dissent from this proposition in the dissenting reasons. The phrase “necessarily incidental” was used in Fowler v. The Queen, [1980] 2 S.C.R.  213 at p. 226.

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In the Fowler case the issue was as to the constitutional validity of s. 33(3) of the Fisheries Act, R.S.C. 1970, c. F-14, which provided that:

(3) No person engaging in logging, lumbering, land clearing or other operations, shall put or knowingly permit to be put, any slash, stumps or other debris into any water frequented by fish or that flows into such water, or on the ice over either such water, or at a place from which it is likely to be carried into either such water.

After referring to definitions of the word “fishery”, the Court, at p. 224, said:

The legislation in question here does not deal directly with fisheries, as such, within the meaning of those definitions. Rather, it seeks to control certain kinds of operations not strictly on the basis that they have deleterious effects on fish but, rather, on the basis that they might have such effects. Prima facie, subs. 33(3) regulates property and civil rights within a province. Dealing, as it does, with rights and not dealing specifically with “fisheries”, in order to support the legislation it must be established that it provides for matters necessarily incidental to effective legislation on the subject-matter of sea coast and inland fisheries.

The conclusion reached by the Court, at p. 226, was as follows:

Subsection 33(3) makes no attempt to link the proscribed conduct to actual or potential harm to fisheries. It is a blanket prohibition of certain types of activity, subject to provincial jurisdiction, which does not delimit the elements of the offence so as to link the prohibition to any likely harm to fisheries. Furthermore, there was no evidence before the Court to indicate that the full range of activities caught by the subsection do, in fact, cause harm to fisheries. In my opinion, the prohibition in its broad terms is not necessarily incidental to the federal power to legislate in respect of sea coast and inland fisheries and is ultra vires of the federal Parliament.

The respondent has not demonstrated that it is essential to the operation of the legislative scheme provided in the Juvenile Delinquents Act that the cost of supporting juvenile delinquents must be borne by the municipalities. Nor has the respond-

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ent submitted any authority to support the proposition that, as incidental to the exercise of its legislative powers, Parliament can impose a financial burden upon an institution, such as a municipality, which is the creature of the Provincial Legislature, and whose powers, including the power to raise and spend money, are defined solely by provincial legislation.

The case of the Reference re Troops in Cape Breton [1930] S.C.R. 554 decided that the Parliament of Canada could not impose upon a province the duty to pay expenses incurred in connection with a requisition calling out the active militia in aid of the civil power. The Militia Act, R.S.C. 1906, c. 41, as amended by 1924 (Can.), c. 57 enabled the Attorney General of a province to requisition the services of the active militia in aid of the civil power where a riot or disturbance occurred or was anticipated as likely to occur. The Attorney General of Nova Scotia made such a requisition in respect of a riot or disturbance at a power plant at New Waterford, Cape Breton. The requisition stated that the Attorney General, on behalf of the Province of Nova Scotia, undertook that all expenses and costs incurred by reason of the calling out of the militia would be paid by the province.

Section 86 of the Act provided for the content of a requisition. Subsections (2) and (3) provided:

(2) Moreover in every case there shall be embodied in the requisition, which shall be signed by the Attorney General, an unconditional undertaking that the province shall pay to His Majesty all expenses and costs incurred by His Majesty by reason of the militia, or any part thereof, being called out or serving in aid of the civil power as by the requisition required.

(3) Every statement of fact contained in any requisition made under the provisions of this Act shall be conclusive and binding upon the province on behalf of which the requisition is made; and every undertaking or promise in any such requisition contained shall be binding upon the province and not open to any question or dispute by reason of any alleged incompetence or lack of authority on the part of the Attorney General to make the same, or for any other reason.

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A question was referred to this Court as to the liability of the province to pay all costs and expenses incurred by reason of the calling out of the militia.

The Attorney General of Canada contended that the provisions of the Act constituted an offer by Canada to the province, and that upon acceptance of the offer, coupled with the undertaking, a contractual obligation arose. The Attorney General of Nova Scotia contended that was not the effect of the statute and that the Attorney General had no authority to bind the provincial Crown by the undertaking.

Duff J. (as he then was) decided that the province was not liable. He said, at p. 561-62:

In the view I am about to state, however, it is really unnecessary to pass upon any question as to the scope of the authority of the Attorney-General of Nova Scotia. I think Mr. Geoffrion’s contention is unanswerable, that the sections of the Militia Act, upon which the Dominion relies, repose certain powers in the person occupying the position of Attorney-General in the province for the time being, but that the exercise of these powers does not in any way depend upon the consent of the Lieutenant-Governor, or of the provincial legislature. That, I think, is made clear by subsection 3 of section 86,…

...

Obviously this statute envisages the Attorney-General, not in his capacity as Attorney-General to His Majesty as the Sovereign Head of the province, but as a person in whom certain powers are vested, and on whom certain duties are laid by the statute. The sections apply to every province and go into operation independently of the scope of the Attorney-General’s authority to bind the province in respect of the expenditure of moneys for such purposes.

It follows that these enactments do not contemplate a duty to pay proceeding from a contract between the province and the Dominion. The Solicitor-General in his very candid argument did not contend that the duty to pay these expenses could be imposed by the Dominion on the province in invitum, and that, of course, would be a plain violation of the fundamental principle of the British North America Act. The revenues of the province are vested in His Majesty as the supreme head of the province, and the right of appropriation of all such

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revenues belongs to the legislature of the province exclusively.

There was no suggestion in this case that the provisions of s. 86(3) were reasonably ancillary to the provisions of the Militia Act dealing with aid to the civil power, which were properly enacted pursuant to s. 91(7)  of the British North America Act, 1867.

If the Parliament of Canada cannot impose on a province a duty to pay expenses, without its consent, it is my view that likewise it cannot, without the interposition of the province, impose such a duty upon municipal institutions in the province, created by the province pursuant to s. 92(8) of that Act.

In my opinion the Parliament of Canada did not have the authority to enact s. 20(2), in so far as it is made applicable to municipalities. This is not legislation in relation to criminal law or criminal procedure, and it was not truly necessary for the effective exercise of Parliament’s legislative authority in these fields. The provisions of s. 20(2), in so far as they relate to municipalities, constitute legislation which affects the civil rights of municipalities, which are, themselves, the creation of and subject to the legislative control of the provincial legislatures. Section 92(8)  of the Constitution Act, 1867  gave to the provinces the exclusive right to make laws in relation to “Municipal Institutions in the Province”. The establishment of municipal institutions is effected by the provinces pursuant to this power. The effect of s. 20(2) is to alter the role of municipal institutions, not necessarily limited to financial matters but also with respect to their duty toward persons found within their boundaries. This is an indirect amendment to provincial legislation respecting municipalities. It could not be justified in the absence of a direct link with federal legislative power under s. 91(27). There is no direct link between the municipality “to which the child belongs” and the issue of the child’s criminality. The obligation sought to be imposed on the municipality arises only after the criminal proceedings have been completed and sentence has been imposed.

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In my opinion the deletion of the reference to municipalities in s. 20(2) can be effected without affecting the substance of the remainder of the Act and it is a proper case for severance.

In view of the above conclusions, it is not necessary to consider the other grounds of appeal raised by the appellant.

I would allow the appeal. I would answer the constitutional question stated by the Chief Justice in the negative. The judgments of the courts below should be set aside in so far as they relate to the imposition upon the appellant of any obligation to make any payments to the respondents. The appellant should be entitled, as against the respondents, to its costs in this Court and in the courts below. There should be no costs payable by or to any of the interveners.

Appeal allowed with costs.

Solicitors for the appellant: Osler, Hoskin & Harcourt, Toronto.

Solicitors for the respondents: Stapells & Sewell, Toronto, and counsel for the respondents’ solicitors: Cameron, Brewin & Scott, Toronto.

Solicitor for the intervener the Attorney General for Ontario: A. Randall Dick, Toronto.

Solicitors for the intervener the Attorney General of Quebec: Jean-K. Samson and Lorraine Pilette, Ste-Foy.

Solicitor for the intervener the Attorney General of Canada: R. Tassé, Ottawa.