Chamney v. R., [1975] 2 SCR 151

Supreme Court of Canada

Chamney v. R., [1975] 2 S.C.R. 151

Date: 1973-10-02

Wilfred George Chamney Appellant;

and

Her Majesty The Queen Respondent.

1973: June 12, 13; 1973: October 2.

Present: Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Constitutional law—Validity of declarations in s. 174 of Canada Grain Act, R.S.C. 1952, c. 25 (now R.S.C. 1970, c. G-16) and s. 45 of Canadian Wheat Board Act, R.S.C. 1952, c. 44 (now R.S.C. 1970, c. C-12)—Whether applicable to rapeseed elevator—British North America Act, 1867, s. 92(10)(c).

The appellant was the manager and majority shareholder of a company whose main business was the purchase and resale of rapeseed. It also purchased and sold mustard seed and was engaged in flour milling. It did not purchase wheat except for milling purposes, and did not purchase oats or barley. There were a number of buildings on the company’s premises including a flour mill; a building used for the reception, cleaning and storage of wheat to be milled into flour; a large elevator type building used for receiving rapeseed and mustard seed and cleaning and storing mustard seed; a building used for cleaning and storing the rapeseed; a storage building and an office and warehouse building.

The appellant was convicted of an offence under s. 16(2) of the Canadian Wheat Board Act, having failed, upon delivery to the company of a quantity of rapeseed, to comply with the requirements of that subsection. The appellant’s appeal, by way of trial de novo, was dismissed, and a further appeal to the Court of Appeal was also dismissed. With leave, the appellant then appealed to this Court.

Held: The appeal should be dismissed.

Jorgenson v. The Attorney General of Canada, [1971] S.C.R. 725, established that s. 174 of the Canada Grain Act, declaring all elevators in Canada

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to be works for the general advantage of Canada, and that part of s. 45 of the Canadian Wheat Board Act that contains a general declaration are a valid and proper declaration of the Parliament of Canada pursuant to s. 92(10)(c) of the British North America Act. The declarations made in s. 174 of the Canada Grain Act and s. 45 of the Canadian Wheat Board Act were, by their terms, made applicable to the elevator to which the rapeseed in question was delivered.

It having been concluded that the premises in question were works declared to be for the general advantage of Canada, it was clear that Parliament could control the quantities of grain which could be received into an elevator and could enact s. 16(2) of the Canadian Wheat Board Act as a means of exercising control over the work and that the appellant could properly be convicted of an offence under that subsection.

City of Montreal v. Montreal Street Railway, [1912] A.C. 333, referred to.

APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], dismissing an appeal from a judgment of Maher D.C.J. Appeal dismissed.

R.H. McKercher, Q.C., for the appellant.

J.A. Scollin, Q.C., and S.F. Sommerfeld, Q.C., for the respondent.

Ross Goodwin, for the Attorney General of Quebec.

W. Henkel, Q.C., for the Attorney General of Alberta.

The judgment of the Court was delivered by

MARTLAND J.—The appellant was convicted of an offence under s. 16(2) of the Canadian Wheat Board Act, R.S.C. 1952, c. 44 (now s. 17(2), R.S.C. 1970, c. C-12). This section provides:

16.(2) Where grain is delivered by a producer to an elevator, the manager or operator thereof shall, immediately upon completion of the delivery of the grain, truly and correctly record and enter the net weight in bushels after dockage, of the grain so

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delivered in the permit book under which delivery is made and shall initial the entry in the permit book.

The facts, as found by the trial judge, are not in dispute. The quota fixed by the Wheat Board for rapeseed deliveries in the Western Division, at the relevant time, was eight bushels per seeded acre, or 400 bushels, whichever was larger. On October 22, 1969, Andrew Mueller delivered to Humboldt Flour Mills Co. Ltd., hereinafter referred to as “the Company”, approximately 870 bushels of rapeseed but the appellant entered only 359 bushels in Mueller’s permit book, the remaining quantity that Mueller was entitled to deliver within the limits of his quota.

The appellant is the manager and majority shareholder of the Company. The purchase and resale of rapeseed is the main business of the Company. It also purchases and sells mustard seed and is engaged in flour milling. It handles feed products. It does not purchase wheat except for milling purposes, and does not purchase oats or barley. The rapeseed is cleaned and prepared for export standards because most of it is resold in the export market. There are six buildings on the Company premises. One is used as a flour mill; a second one is used for the reception, cleaning and storage of wheat to be milled into flour; a third one is a large elevator type building used for receiving rapeseed and mustard seed and cleaning and storing mustard seed; a fourth building is used for cleaning and storing the rapeseed; a fifth building (formerly used for cleaning and storing) is used for storing. The sixth building is an office and warehouse.

The appellant appealed from his conviction. This appeal, by way of trial de novo was dis-

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missed. A further appeal to the Court of Appeal for Saskatchewan was dismissed. Leave to appeal to this Court was granted on three questions of law, namely:

(a) whether the purported declaration in s. 45 of the Canadian Wheat Board Act, R.S.C. 1952, c. 44, is intra vires the Parliament of Canada;

(b) whether the purported declaration in s. 174 of the Canada Grain Act, R.S.C. 1952, c. 25, was intra vires the Parliament of Canada and included the rapeseed delivery elevator of Humboldt Flour Mills Co. Ltd. at Humboldt, Saskatchewan;

(c) whether, according to the proper statutory interpretation, the scheduled and declared elevators in the Canadian Wheat Board Act includes the rapeseed elevator owned and operated by Humboldt Flour Mills Co. Ltd.

Section 45 of the Canadian Wheat Board Act reads as follows:

45. For greater certainty, but not so as to restrict the generality of any declaration in the Canada Grain Act that any elevator is a work for the general advantage of Canada, it is hereby declared that all flour mills, feed mills, feed warehouses and seed cleaning mills, whether heretofore constructed or hereafter to be constructed, are and each of them is hereby declared to be works or a work for the general advantage of Canada, and, without limiting the generality of the foregoing, each and every mill or warehouse mentioned or described in the Schedule is a work for the general advantage of Canada.

Section 174 of the Canada Grain Act provides:

174. All elevators in Canada heretofore or hereafter constructed are hereby declared to be works for the general advantage of Canada.

In my opinion, the judgment of this Court in Jorgenson v. The Attorney General of Canada[2] establishes that s. 174 of the Canada Grain Act and that part of s. 45 of the Canadian Wheat Board Act that contains a general declaration are a valid and proper declaration of the Parlia-

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ment of Canada pursuant to s. 92 (10)(c) of the British North America Act.

Section 92(10) of that Act provides as follows:

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,—

10. Local Works and Undertakings other than such as are of the following Classes:—

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:

(b) Lines of Steam Ships between the Province and any British or Foreign Country:

(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

Section 91(29) gives the Parliament of Canada exclusive legislative authority in respect of:

29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

This provides the answer to the questions posed in question (a) and the first portion of question (b).

The remaining issue is as to whether the declaration properly made under the two sections cited previously could be applied and did apply to the rapeseed delivery elevator of the Company.

The appellant contended that the declaratory power given by s. 92(10)(c) of the British North America Act could only be exercised in relation to the valid exercise of a federal power under s.

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91. It was argued that, because the Parliament of Canada had exercised a general control over the interprovincial and export trade in wheat, oats and barley, a declaration declaring elevators handling those grains to be for the general advantage of Canada would be valid, but that such a declaration could not be made in respect of an elevator used for the cleaning and storage of rapeseed, which was operated in connection with local deliveries and sales.

In support of this proposition there was cited the decision of the Privy Council in City of Montreal v. Montreal Street Railway[3].

In my opinion this case is not authority for the proposition stated. It involved two railways wholly situated in the Province of Quebec, operating in the City of Montreal and the adjacent township. One, referred to as the Park Railway, had been declared to be a work for the general advantage of Canada, and no issue was raised as to the validity of that declaration. The other, referred to as the Street Railway, was a local work in respect of which no such declaration had been made. The issue in the case was as to the validity of an order of the Board of Railway Commissioners for Canada, which purported to require the Street Railway to enter into any agreement or agreements that might be necessary to enable the Park Railway to carry out certain requirements imposed upon it by that order.

This part of the order was held to have been made without jurisdiction, because it related to a provincial railway, but it was pointed out that the necessary authority could have been acquired by a statutory declaration under s. 92(10)(c) to convert the provincial line into a federal line.

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It was made clear in this judgment that s. 92(10)(c) provided a means whereby jurisdiction over a local work, subject to provincial legislation, could be transferred to the Federal Parliament.

In my opinion the declarations made in s. 174 of the Canada Grain Act and s. 45 of the Canadian Wheat Board Act were, by their terms, made applicable to the elevator to which the rapeseed in question here was delivered. The declaration in s. 174 applies to “all elevators in Canada”. “Elevator” is defined as meaning “any premises into which western grain may be received, or out of which it may be discharged, directly from or into railway cars …” (The emphasis is my own.) By its terms this declaration is applicable to any premises from which western grain (i.e. grain grown in Canada west of the east boundary of Port Arthur) may be discharged directly into railway cars.

The premises in question here fall within this declaration. The Company’s premises are served by a railway spur line. The fact that rapeseed is received into one building and then transferred into a connected and immediately adjoining building for storage prior to rail shipment does not affect the position. The two interconnected buildings constitute premises from which grain may be discharged into railway cars. These premises are therefore, by virtue of the declaration, subject to federal legislative control.

The Canadian Wheat Board Act applies controls to these premises. Section 2(1)(d) defines “elevator” as meaning “a grain elevator, warehouse or mill that has been declared by the Parliament of Canada to be a work for the general advantage of Canada”. The word “grain” in this Act is defined as including wheat, oats, barley, rye, flaxseed and rapeseed.

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Section 45, without restricting the generality of the declaration made in the Canada Grain Act, declares “all flour mills, feed mills, feed warehouses and seed cleaning mills, whether heretofore constructed or hereafter to be constructed” to be works for the general advantage of Canada.

The section goes on to say that “without limiting the generality of the foregoing, each and every mill or warehouse mentioned or described in the Schedule is a work for the general advantage of Canada”.

This Act contains a schedule in which, under the heading “Mills and Feed Warehouses in Saskatchewan”, there appears, under the subheading “Flour Mills”, the name “Humboldt Flour Mills Limited”, as owner or licensee, and the address “Humboldt”. A similar entry appears under the subheading “Seed Cleaning Mills”. It is in respect of this schedule that the third issue, on which leave to appeal was granted, is raised; i.e., did it include the Company’s rapeseed elevator?

In my opinion this issue is not significant, inasmuch as I have already concluded that the declaration made under s. 174 of the Canada Grain Act applied to these premises. However, were it necessary to decide it, I am in agreement with what was said by the trial judge on the trial de novo:

The appellant provided the Court with a photograph of the physical facilities used in the operation of the business of the Company showing four buildings, including one used for storage purposes, a wheat or flour mill, an elevator used in association with the mill, and a large elevator type building used for the purpose of receiving, cleaning and storing rapeseed and mustard seed. I am unable to agree that because there are separate elevators the declaration should have specified which of the buildings were to be included under each of the headings; “Flour Mills” and “Seed Cleaning Mills” as used in the Schedule to the Act. The photo indicates that all the buildings with the possible exception of the flour mill are connected, the entire facility is no doubt served by one railroad siding or spur, the entire operation is

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owned and operated by the one Company, Humboldt Flour Mills Co. Ltd. Parliament has simply declared that a flour mill or mills and a seed cleaning mill or mills operated by the Company at Humboldt, Saskatchewan, are works for the general advantage of Canada, and, in my opinion, it matters not in how many buildings these operations are carried on.

Having concluded that the premises in question here are works declared to be for the general advantage of Canada, it is clear that Parliament could control the quantities of grain which could be received into an elevator and could enact s. 16(2) of the Canadian Wheat Board Act as a means of exercising control over the work and that the appellant could properly be convicted of an offence under that subsection.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Wedge, McKercher, McKercher & Stack, Saskatoon.

Solicitor for the respondent: William B. Purdy, Saskatoon.