THE
Chief
Justice:—By
leave
of
this
Court
the
Attorney
General
of
Canada
appeals
from
a
judgment
of
the
Court
of
Queen’s
Bench
(Appeal
Side)
for
the
Province
of
Quebec,
maintaining
an
appeal
from
24
interlocutory
judgments
rendered
during
the
trial
of
this
action
by
the
Honourable
W.
B.
Scott,
at
that
time
Associate
Chief
Justice
of
the
Superior
Court.
The
plaintiff-respondent,
Reader’s
Digest
Association
(Canada)
Ltd.,
Sélection
du
Reader’s
Digest
(Canada)
Ltée,
having
its
head
office
and
principal
place
of
business
in
Montreal,
asks
for
a
declaration
that
Part
II
of
the
Excise
Tax
Act,
comprising
Sections
8,
9,
10
and
11,
as
enacted
by
Section
3
of
Chapter
37
of
the
Statutes
of
Canada,
1956,
and
the
Regulations
made
pursuant
thereto,
are
ultra
vires.
For
the
purposes
of
this
appeal
it
is
sufficient
to
state
that
in
substance
the
respondent
alleges
that
the
impugned
legislation
and
regulations
have
the
intent
of
benefiting
one
part
of
the
publishing
industry
at
the
expense
of
another
and
that
the
legislation
and
regulations
in
pith
and
substance
are
in
relation
to
property
and
civil
rights
in
the
Province
of
Quebec
and
that
therefore
they
are
outside
of
the
legislative
competence
of
the
Parliament
of
Canada.
In
paragraph
15
of
its
declaration
the
respondent
sets
out
what
is
alleged
to
be
a
speech
made
in
the
House
of
Commons
by
the
then
Minister
of
Finance,
the
Honourable
Walter
E.
Harris.
At
the
hearing
the
respondent
attempted
to
adduce
evidence
by
Mr.
Harris,
the
Honourable
Donald
Fleming
(the
present
Minister
of
Finance),
Mr.
David
Sim
(Deputy
Minister
of
National
Revenue),
Mr.
Léon
Raymond
(Clerk
of
the
House
of
Commons)
and
Mr.
Alan
Donnelly
(a
Press
Gallery
correspondent).
The
objections
to
this
evidence
by
the
appellant
were
allowed
by
the
presiding
judge.
The
relevant
questions
and
the
rulings
made
thereon
are
as
follows:
1.
Mr.
Harris
“Mr.
Harris,
I
don’t
suppose
there
is
anything
privileged
in
the
fact
that
the
Minister
of
Finance,
when
he
makes
his
budget
report
and
presents
his
budget
report,
is
speaking
for
the
Government?”
Judgment
Objection
maintained.
’
’
2.
Mr.
Harris
Mr.
Harris,
as
Minister
of
Finance,
when
you
were
Minister
of
Finance,
in
1956,
did
you
authorize
the
distribution
to
the
Press,
to
Radio,
and
to
Television,
in
advance
of
your
budget
address,
the
text
of
the
address,
to
be
given
to
the
public
?
’
’
Judgment
“Objection
maintained.’
and
later
“The
objection
to
this
question
is
maintained.”
3.
Mr.
Harris
“Mr.
Harris,
did
you,
as
Minister
of
Finance,
make
a
statement
as
to
the
true
purpose
and
intent
of
the
legislation
herein
?
’
’
Judgment
(To
the
witness)
Don’t
answer
that
question.
I
ruled
that
question
is
illegal.
’
4.
Mr.
Harris
“Mr.
Harris,
did
you
give
to
representatives
of
the
press,
television
and
radio
a
statement
of
the
government’s
purpose
in
promoting
this
legislation
before
Parliament?”
Judgment
‘*
(Objection)
maintained.”
5.
Mr.
Harris
Did
you
state,
Mr.
Harris,
that
the
purpose
of
the
impugned
legislation
was
to
equalize
competition
between
the
two
segments
of
the
publishing
industry
?’’
Judgment
‘*
(Objection)
maintained.”
6.
Mr.
Harris
“Mr.
Harris,
when
you
spoke
as
Minister
of
Finance,
is
it
necessary
in
advance
to
have
your
budget
report
and
address
approved
by
Cabinet?”
Judgment
‘“
(Objection)
maintained.’’
7
.
Mr.
Harris
‘‘Mr.
Harris,
when
presenting
this
legislation,
the
impugned
legislation
to
Parliament,
did
you
speak
on
behalf
of
the
then
government?’’
Judgment
(Objection)
maintained.”
8.
Mr.
Harris
“Mr.
Harris,
did
you
find
that
after
you
had
proposed
this
legislation
to
Parliament
that
your
statement
as
to
the
purpose
of
the
legislation
was
given
wide
publicity
throughout
the
Dominion
of
Canada?”
J
wdgment
“(Objection)
maintained.’’
9.
Mr.
Sim
‘
‘
Mr.
Sim,
it
was
part
of
your
duties
as
head
of
the
Department
of
National
Revenue
to
look
to
the
administration
of
Part
Two
of
the
Excise
Tax
Act
as
enacted
in
1956?”
Judgment
“Do
not
answer
that.”
Questioned
by
the
Court
“Q.
Are
your
duties
laid
down
by
an
Act
of
Parliament
as
Deputy
Minister?
A.
Yes,
sir.
Q.
By
statute?
A.
Yes,
sir.”
‘“By
Me
O’Brien
With
respect,
My
Lord,
I
think
that
in
the
absence
of
an
objection
from
my
friends
that
the
question
should
be
allowed.
By
the
Court
The
Court
has
some
discretion.
By
Me
O’Brien
I
do
not
think
so,
My
Lord,
with
respect.
By
the
Court
You
can
take
an
exception
By
Me
0
’Brien
I
so
do,
My
Lord.
By
the
Court
I
think
that
is
the
best
evidence.
By
Me
O’Brien
I
think
the
best
evidence
would
probably
be
an
Order
in
Council.
By
the
Court
He
is
the
Deputy
Minister
of
National
Revenue.
I
maintain
my
ruling
as
to
that.”
10.
Mr.
Donnelly
Will
you
tell
the
Court
what
was
done
by
the
government
in
releasing
to
the
press
the
statement
of
the
Minister
of
Finance
concerning
his
budget
address
and,
more
particularly,
concerning
the
resolution
he
was
introducing
in
respect
of
the
legislation
here
impugned
“.?
Judgment
“Objection
maintained.”
11.
Mr.
Donnelly
“Did
you
actually
see
the
text
of
the
budget
address
outside
the
limits
of
the
House
of
Commons
before
it
was
delivered
on
March
20th,
1956?”
Judgment
“(Objection)
maintained.”
12.
Mr.
Donnelly
“Now,
will
you
state
to
the
Court
to
how
many
newspapers
in
Canada
you
forwarded
the
text
of
the
budget
address?”
Judgment
“(Objection)
maintained.’’
15.
Mr.
Donnelly
“Will
you
state,
Mr.
Donnelly,
whether
you
have
read
in
newspapers
in
Canada
a
reproduction
of
the
statement
given
by
the
Minister
of
Finance
to
the
Press,
television
and
radio
outside
of
the
limits
of
the
House
of
Commons?”
Judgment
“(Objection)
maintained.”
14.
Mr.
Donnelly
‘Mr.
Donnelly,
when
despatches
that
are
sent
by
Canadian
Press
are
published
in
newspapers,
do
they
usually
have
some
indication
in
the
first
line
of
the
despatch
as
to
the
source
of
the
news?”
Judgment
(Objection)
maintained.’’
15.
_“
Mr.
Donnelly
“I
show
you
a
copy,
Mr.
Donnelly,
of
the
Montreal
Gazette
dated
March
21st,
1956.
It
is
the
text
of
the
Minister’s
.
Statement
given
to
the
press.’
Judgment
I
am
not
going
to
allow
that
to
be
put
in.
That
is
disallowed.
I
am
not
going
to
allow
it.
I
am
not
going
to
allow
that
newspaper
to
be
put
in,
the
Montreal
Gazette
of
the
21st
of
March,
1956.’’
16.
Mr.
Donnelly
Just
to
save
the
time
of
the
Court
I
would
call
attention
to
the
fact
that
I
wish
to
ask
this
witness
if
the
Globe
and
Mail
of
Toronto
for
March
21st,
1956,
the
Winnipeg
Free
Press
for
March
21st,
1956,
La
Presse
of
Montreal
for
March
21st,
1956,
the
Halifax
Chronicle
Herald
for
March
21st,
1956,
and
the
Vancouver
Sun
for
March
21st,
1956,
did
not
all
contain
despatches
sent
by
Canadian
Press
in
which
there
was
a
statement
of
the
avowed
purpose
and
intent
of
the
government
to
promote
the
impugned
legislation
in
this
ease,
before
Parliament.’’
Judgment
‘
(
Objection)
maintained.
’
’
17.
Mr.
Donnelly
To
how
many
papers
did
you
forward
your
despatches
of
the
budget
address?”’
J
udgment
(Objection)
maintained.’’
18.
Mr.
Raymond
“As
Clerk
of
the
House
of
Commons
subject
to
the
jurisdiction
of
Parliament,
of
course,
and
of
the
Speaker,
have
you
the
custody
of
the
records
of
the
House
of
Commons?”
Judgment
“By
the
Court
What
is
the
purpose
of
this
question?
By
Me
O’Brien
I
am
going
to
introduce
the
Journal
of
the
House
of
Commons
for
the
7th
of
August
1956
to
show
that
on
that
date
the
resolution
introduced
by
the
government
in
respect
of
the
impugned
legislation
was
adopted;
that
the
bill
then
presented
to
put
into
effect
the
legislation,
was
given
first,
second
and
third
reading
at
the
same
session;
was
passed
without
amendment
and
without
a
recorded
vote.
By
the
Court
Is
this
the
appeal
?
By
Me
O’Brien
No,
My
Lord,
this
was
enacted
legislation.
By
the
Court
How
could
that
be
relevant?
By
Me
O’Brien
I
think
.
.
By
the
Court
The
question
is
disallowed.”
19.
Mr.
Raymond
“Mr.
Raymond,
there
is
an
official
report
of
the
statements
made
in
the
House
of
Commons
published
each
day,
is
there
not
?
’
’
Judgment
(after
discussion)
“Anyway
there
is
no
relevancy
whatever
to
this
and
it
does
not
need
to
be
answered.’’
20.
Mr.
Raymond
“Mr.
Raymond,
will
you
produce
for
the
Court
the
record
of
Hansard
for
March
20,
1956
and
August
7th
.
.
.”
Judgment
“(Objection)
maintained.”
21.
Mr.
Fleming
“Now,
Mr.
Fleming,
in
connection
with
the
annual
financial
report
which
the
Minister
of
Finance
makes
to
Parliament
which
is
commonly
called
the
Budget
Address,
would
you
state
to
the
Court
whether
in
advance
of
the
presentation
of
that
address
to
the
House
of
Commons
it
is
approved
by
Cabinet?”
Judgment
“
(Objection)
maintained.
That
could
have
no
possible
bearing
on
this
case.”
22.
Mr.
Fleming
“Now,
Mr.
Fleming,
I
understand
that
there
is
a
procedure
under
which
the
secrecy
of
the
budget
address
is
maintained
but
in
order
to—let
me
say—make
it
more
facile
for
the
communication
industries,
the
press,
radio
and
television,
the
body
of
the
representatives
of
those
industries
are
segregated
in
a
certain
room
and
outside
of
the
House
of
Commons.
The
content
of
the
Budget
Address
is
given
to
them
but
they
are
not
allowed
to
disclose
it
until
after
it
is
delivered
in
Parliament?
Is
that
correct?’’
Judgment
“It
has
no
bearing
on
the
case,
Mtre
O’Brien.
The
question
is
disallowed.”
23.
Mr.
Fleming
“Mr.
Fleming,
I
am
not
going
to
ask
you
about
any
part
you
have
played
in
the
House
of
Commons
in
respect
of
this
legislation
but
you
were
fully
aware
of
the
fact
that
it
was
being
introduced
and
of
the
publicity
given
to
it
throughout
Canada.’’
Judgment
‘*
(Objection)
maintained.”
24,
Mr.
Fleming
“Mr.
Fleming,
who
speaks
on
behalf
of
the
government
of
Canada
in
respect
of
financial
matters,
the
question
of
taxation,
the
public
debt,
etc.?”
J
udgment
“Objection
maintained.’’
It
is
conceded
by
counsel
on
behalf
of
the
respondent
that
the
majority,
if
not
all,
of
the
questions
set
out
above
would
not
ordinarily
be
proper
but
it
is
argued
that
the
well
known
rule
in
that
respect
does
not
apply
when
the
constitutional
validity
of
a
statute
is
in
question
in
Canada.
In
Home.
Oil
Distributors
Lid.
v.
A.-G.
British
Columbia,
[1940]
S.C.R.
444,
I,
with
the
concurrence
of
Rinfret,
J.,
as
he
then
was,
took
into
consideration
a
report
of
a
Commission
under
the
circumstances
there
existing,
but
only
for
the
purpose
of
showing
what
was
present
to
the
mind
of
Parliament.
The
same
course
had
been
adopted
by
the
Privy
Council
in
A.-G.
British
Columbia
v.
A.-G.
Canada,
[1937]
A.C.
368,
and
Ladore
v.
Bennett,
[1939]
A.C.
468.
In
the
[1937]
A.C.
case
the
Committee
said
at
page
376:
-‘
“It
probably
would
not
be
contended
that
the
statement
of
the
Minister
in
the
order
of
reference
that
the
section
was
enacted
to
give
effect
to
the
recommendations
of
the
Royal
Commission
bound
the
Province
or
must
necessarily
be
treated
as
conclusive
by
the
Board.
But
when
the
suggestion
is
made
that
the
legislation
was
not
in
truth
criminal
legislation,
but
was
in
substance
merely
an
encroachment
on
the
Provincial
field,
the
existence
of
the
Report
appears
to
be
a
material
circumstance.”
Here
the
argument
is
that
the
legislation
is
not
what
it
appears
to
be.
In
the
[1939]
A.C.
case
the
Report
of
a
Commission
was
objected
to
in
the
Courts
of
Canada
but
before
the
Judicial
Committee
the
objection
was
withdrawn
and
by
consent
the
Report
was
placed
before
their
Lordships.
As
to
this
Report
it
was
said
at
page
477
:
‘
Their
Lordships
do
not
cite
this
report
as
evidence
of
the
facts
there
found,
but
as
indicating
the
materials
which
the
Government
of
the
Province
had
before
them
before
promoting
in
the
Legislature
the
statute
now
impugned.”
We
are
not
concerned
in
this
appeal
with
the
report
of
a
commission
and
it
is
therefore
unnecessary
to
pass
upon
the
point.
The
dictum
of
Locke,
J.,
speaking
for
all
the
Members
of
this
Court,
in
Texada
Mines
v.
A.-G.
British
Columbia,
[1960]
S.C.R.
713
at
720,
referring
to
certain
statements
purporting
to
have
been
made
by
the
Premier
of
British
Columbia
and
the
Minister
of
Mines,
that
had
the
evidence
been
tendered
it
would
have
been
rejected
as
inadmissible,
should
now
be
declared
to
be
a
correct
statement
of
the
law.
This
conclusion
is
sufficient
to
dispose
of
the
matter.
The
appeal
should
be
allowed,
the
judgment
of
the
Court
of
Queen’s
Bench
(Appeal
Side)
set
aside
and
the
rulings
of
the
Superior
Court
restored
and
the
record
returned
to
that
Court.
The
respondent
must
pay
the
appellant
his
costs
in
this
Court
and
in
the
Court
of
Queen’s
Bench.
CARTWRIGHT,
J.:—This
is
an
appeal,
brought
pursuant
to
leave
granted
by
this
Court,
from
a
judgment
of
the
Court
of
Queen’s
Bench
allowing
an
appeal
from
a
number
of
interlocutory
decisions
of
Scott,
C.J.,
and
returning
the
record
to
the
Superior
Court.
By
Section
3
of
Chapter
37
of
the
Statutes
of
Canada,
1956,
4-5
Eliz.
II,
Parliament
amended
the
Excise
Tax
Act
by
adding
thereto
Part
II.
By
the
terms
of
this
Part
there
was
levied
a
tax
of
20%
on
the
value
of
advertising
material
contained
in
periodicals
printed
in
or
outside
Canada
for
publication
in
Canada,
if
the
periodical
(1)
contained
editorial
material
(which
is
defined
as
any
printed
material
other
than
advertising)
at
least
25%
of
which
was
the
same
or
substantially
the
same
or
substantially
the
same
as
editorial
material
contained
in
one
or
more
copies
of
a
particular
non-Canadian
periodical,
whether
in
the
same
or
in
some
other
language;
and
(2)
contained
any
advertising
material
that
was
not
contained
in
such
non-Canadian
periodical.
The
effect
of
this
statute
was
to
levy
on
the
respondent
a
tax
of
20%
on
the
value
of
advertising
material
in
its
two
publications
which
were
printed
and
published
in
Canada,
namely,
The
Reader’s
Digest’’
and
‘‘Sélection
du
Reader’s
Digest’’.
The
tax,
under
the
terms
of
the
statute,
was
to
become
applicable
on
January
1,
1957.
The
respondent
alleges
that
duly
authorized
representatives
of
the
Government
of
Canada
called
upon
respondent
to
make
payment
of
a
tax
of
$35,225.32,
in
respect
of
advertising
contained
in
respondent’s
two
said
magazines,
which
were
printed,
issued
and
delivered
to
the
public
in
Canada
in
the
month
of
January,
1957.
The
respondent
commenced
an
action
in
the
Superior
Court
of
the
Province
of
Quebec,
on
April
17,
1957,
asking
‘‘that
it
be
adjudged
that
Part
II
of
the
Excise
Tax
Act,
Sections
8,
9,
10
and
11
as
enacted
by
Section
3
of
Chapter
37
of
the
Statutes
of
Canada,
1956,
and
the
Regulations
made
pursuant
thereto,
are
outside
the
competence
and
ultra
vires
of
the
Parliament
of
Canada,
and
unconstitutional,
and
null
and
void
and
nonexistent;
that
plaintiff’s
said
two
magazines
‘The
Reader’s
Digest’
and
‘Sélection
du
Reader’s
Digest’
are
not
periodicals
as
defined
by
Part
II
of
the
Excise
Tax
Act;
and
that
plaintiff
is
not
liable
for
payment
of
the
said
sum
of
$35,225.32
nor
required
to
take
out
a
licence
and
post
a
bond
for
the
payment
of
taxes
under
Part
II
of
the
Excise
Tax
Act.”
The
grounds
on
which
the
claim
for
this
relief
is
asserted,
so
far
as
they
are
relevant
to
this
appeal,
are
set
out
in
the
declaration
as
follows,
(i)
that
Part
II
of
the
Excise
Tax
Act
“was
avowedly
enacted
for
the
sole
purpose
of
benefiting
one
segment
of
the
publishing
industry
at
the
expense
of
another
segment
thereof’’,
(ii)
that
Part
II
and
the
regulations
made
thereunder
are
ultra
vires
‘‘as
being
legislation
dealing
with
classes
of
subjects
in
relation
to
which
the
Parliament
of
Canada
has
no
jurisdiction”,
and
(iii)
that
in
pith
and
substance
Part
II
and
the
regulations
made
thereunder
are
‘‘related
to
the
property
and
civil
rights
of
the
plaintiff’’.
The
appellant
in
his
plea
denied
each
of
the
paragraphs
in
the
declaration
in
which
the
grounds
summarized
above
were
alleged
and
in
paragraph
12
pleaded
:
“That
Part
II
of
the
Excise
Tax
Act,
sections
8,
9,
10,
11,
as
enacted
by
section
3
of
chapter
37
of
the
Statutes
of
Canada
1956
and
the
regulations
made
pursuant
thereto
by
the
Minister
of
National
Revenue,
published
on
November
14th,
1956
in
The
Canada
Gazette,
vol.
90,
Part
IT,
page
441,
were
enacted
and
made
within
the
competence,
the
jurisdiction
and
the
legislative
powers
of
the
Parliament
of
Canada;”
The
issue
so
raised
is
the
only
one
relevant
to
the
question
of
admissibility
of
evidence
with
which
we
are
concerned
on
this
appeal.
The
main
ground
on
which
the
respondent
attacks
the
constitutional
validity
of
Part
II
of
the
Excise
Tax
Act
is
stated
in
its
factum
as
follows:
“The
principal
basis
of
Respondent’s
action
is
that
the
impugned
statute,
while
in
form
a
taxing
statute,
was
not
intended
for
the
raising
of
money,
but
that
the
true
object
or
intent
of
the
statute
was
to
benefit
one
segment
of
the
publishing
industry
in
Canada
at
the
expense
of
another.
Respondent
takes
the
position
that
if
the
true
object
and
intent
of
the
statute
were
achieved
its
success
would
be
measured
inversely
by
the
revenue
which
it
yields.”
We
are
not
concerned,
on
this
appeal,
with
the
soundness
of
this
contention
or
with
the
merits
of
the
action.
The
only
question
before
us
is
as
to
the
admissibility
of
certain
evidence
tendered
at
the
trial
on
behalf
of
the
respondent
and
rejected
by
the
learned
trial
judge.
It
is
not
necessary
to
set
out
in
detail
the
items
of
evidence
tendered
and
rejected
at
the
trial
for
the
questions
raised
are
accurately
summarized
in
the
respondent’s
factum
as
follows:
The
only
real
questions
in
issue
in
the
present
appeal
are
:
(1)
whether
Respondent
could
introduce
evidence
of
the
pronouncement
made
on
behalf
of
the
Government
by
the
Minister
of
Finance
concerning
the
intent
of
the
legislation
in
order
to
show
the
material
that
was
before
Parliament
when
the
legislation
was
being
promoted;
and
(2)
whether
Respondent
could
prove
that
the
legislation
so
introduced
and
promoted
was
given
first,
second
and
third
readings
on
the
same
day
without
amendment,
and
was
enacted
by
the
Senate
in
the
form
in
which
it
was
introduced
without
amendment.’’
Counsel
for
the
respondent
concedes
that
if
no
question
were
raised
as
to
the
constitutional
validity
of
the
statute
the
evidence
in
question
would
be
inadmissible
in
aid
of
the
interpretation
of
any
ambiguous
provision
thereof.
That
this
is
so
was
laid
down
as
long
ago
as
1769,
when,
in
Millar
v.
Taylor,
4
Burr.
2303
at
page
2332,
Willes,
J.,
said:
“The
sense
and
meaning
of
an
Act
of
Parliament
must
be
collected
from
what
it
says
when
passed
into
a
law
;
and
not
from
the
history
of
changes
it
underwent
in
the
house
where
it
took
its
rise.
That
history
is
not
known
to
the
other
house
or
to
the
sovereign.”
The
general
rule
in
this
regard,
where
the
question
is
one
of
interpretation,
is
accurately
stated
in
Halsb
ury’s
Laws
of
England,
2nd
ed.,
Vol.
31
at
page
490,
as
follows:
“621.
Light
may
be
thrown
on
the
scope
of
a
statute
by
looking
at
what
Parliament
was
doing
contemporaneously,
and
at
the
history
of
the
statute;
but
even
when
words
in
a
statute
are
so
ambiguous
that
they
may
be
construed
in
more
than
one
sense,
regard
may
not
be
had
to
the
Bill
by
which
it
was
introduced
nor
to
the
fate
of
amendments
dealt
with
in
committee
of
either
House,
nor
to
what
has
been
said
in
Parliament
or
elsewhere,
nor
to
the
recommendations
of
a
Royal
Commission
which
shortly
preceded
the
statute
under
consideration.”
Accepting
the
above
as
a
correct
statement
of
the
law
where
the
question
is
one
of
the
interpretation
of
an
admittedly
valid
statute,
Mr.
O’Brien
argues
that
the
rule
is
otherwise
when
the
question
is
whether
a
legislature,
possessing
not
an
absolute
jurisdiction
but
a
law-making
authority
of
a
limited
or
qualified
character,
has
exceeded
its
powers
and
under
the
guise
of
legislating
in
relation
to
a
subject-matter
committed
to
it
has
in
reality
legislated
in
relation
to
a
subject-matter
assigned
exclusively
to
another
body.
Both
counsel
informed
us
that
they
had
been
unable
to
find
any
reported
case
in
which
the
question
presented
in
this
appeal
has
been
decided
although
there
is
a
dictum
in
a
recent
decision
of
this
Court,
to
be
mentioned
later,
which
deals
with
the
matter.
In
support
of
the
admissibility
of
the
evidence
in
question
Mr.
O’Brien
puts
forward
to
the
following
argument:
To
aid
in
interpreting
a
statute
the
report
of
a
Royal
Commission
which
shortly
preceded
the
passing
of
the
statute
is
inadmissible.
It
was
so
held
by
the
House
of
Lords
in
Assam
Railways
and
Trading
Co.
v.
C.I.R.,
[1935]
A.C.
445.
Lord
Wright,
with
whom
all
the
other
law
lords
agreed
on
this
point,
said
at
page
458
:
‘It
is
clear
that
the
language
of
a
Minister
of
the
Crown
in
proposing
in
Parliament
a
measure
which
eventually
becomes
law
is
inadmissible
and
the
report
of
Commissioners
is
even
more
removed
from
value
as
evidence
of
intention,
because
it
does
not
follow
that
their
recommendations
were
accepted.”
This
language
indicates
that
the
statement
of
a
Minister
of
the
Crown
in
introducing
a
bill
in
Parliament
would
be
more
readily
admitted
than
the
report
of
a
commission;
but
in
determining
questions
arising
under
the
British
North
America
Act
as
to
whether
Parliament
or
a
provincial
legislature
by
the
use
of
a
colourable
device
has
invaded
the
legislative
field
reserved
to
the
other
the
Judicial
Committee
and
this
Court
have
from
time
to
time
admitted
in
evidence
and
made
use
of
the
reports
of
commissions
as
appears
from
the
judgments
in
Ladore
v.
Bennett,
[1939]
A.C.
468;
A.-G.
British
Columbia
v.
A.-G.
Canada,
[1937]
A.C.
368;
Proprietary
Articles
Trade
Association
v.
A.-G.
Canada,
[1931]
A.C.
310,
and
Home
Oil
Distributors
Ltd.
v.
A.-G.
British
Columbia,
[1940]
S.C.R.
444;
therefore
a
fortiori
in
determining
such
questions
the
statement
of
a
Minister
of
the
Crown
in
introducing
a
bill
in
Parliament
is
admissible
in
evidence.
The
above
brief
summary
scarcely
does
justice
to
Mr.
O’Brien’s
logical
and
persuasive
argument
but
it
indicates
its
substance.
In
considering
this
argument
it
is
necessary
to
examine
the
four
cases
last
mentioned
above.
In
Ladore
v.
Bennett
(supra),
a
Royal
Commission
had
made
a
report
in
April
1935
disclosing
the
existence
of
a
serious
financial
position
in
the
City
of
Windsor
and
three
adjoining
municipalities.
With
the
materials
in
that
report
before
them
the
Government
of
the
Province
of
Ontario
promoted
in
the
legislature
an
Act
to
amalgamate
the
four
municipalities
and
containing,
inter
alia,
provisions
for
refunding
the
debts
of
those
municipalities.
The
Act
was
attacked,
in
an
action,
as
being
ultra
vires
of
the
legislature
on
the
ground
that
it
invaded
the
field
of
the
Dominion
as
to
(i)
Bankruptcy
and
Insolvency
and
(ii)
Interest
and
on
the
further
ground
that
it
affected
private
rights
outside
the
province.
In
the
courts
in
Canada
the
report
when
tendered
in
evidence
was
objected
to
and
the
objection
was
upheld,
but
before
the
Judicial
Committee
the
objection
was
withdrawn
and
by
consent
of
both
parties
the
report
was
placed
before
their
Lordships.
Lord
Atkin,
who
delivered
the
judgment
of
the
Board,
after
setting
out
in
some
detail
the
serious
financial
position
disclosed
by
the
report
said,
at
page
477:
‘“Their
Lordships
do
not
cite
this
report
as
evidence
of
the
facts
there
found,
but
as
indicating
the
materials
which
the
Government
of
the
Province
had
before
them
before
promoting
in
the
Legislature
the
statute
now
impugned.’’
The
manner
in
which
the
report
had
been
dealt
with
in
the
courts
below
appears
in
the
reasons
of
Henderson,
J.A.,
who
delivered
the
unanimous
judgment
of
the
Court
of
Appeal,
in
[1938]
O.R.
324
at
page
353:
“This
Commission
in
due
course
made
a
report
which
was
tendered
in
evidence
and
received
by
the
learned
trial
judge
(Hogg
J.)
subject
to
objection.
Subsequently
he
sustained
the
objection
and
ruled
that
the
report
is
not
evidence,
with
which
conclusion
I
agree.’’
A.-G.
British
Columbia
v.
A.-G.
Canada
(supra)
was
an
appeal
from
a
judgment
of
this
Court
on
a
reference
by
the
Governor-
General
in
Council
raising
the
question
whether
Section
498A
of
the
Criminal
Code,
introduced
by
Section
9
of
25
and
26
Geo.
V,
c.
56,
was
ultra
vires
of
Parliament.
It
appears
from
the
report
in
this
Court,
[1936]
S.C.R.
363
at
page
364,
that
the
order
of
reference
contained
the
following
statement
:
“The
Minister
observes
that
the
said
section
498A
was
enacted
for
the
purpose
of
giving
effect
to
certain
recommendations
contained
in
the
Report
of
the
Royal
Commission
on
Price
Spreads
but
that
doubts
exist
or
are
entertained
as
to
whether
the
Parliament
of
Canada
had
legislative
jurisdiction
to
enact
this
section
in
whole
or
in
part.
’
’
The
reasons
delivered
in
this
Court
make
no
reference
to
this
Report
of
the
Royal
Commission.
The
only
mention
made
of
it
in
the
judgment
of
the
Judicial
Committee
is
in
the
following
passage
at
page
376:
‘In
the
present
case
there
seems
to
be
no
reason
for
supposing
that
the
Dominion
are
using
the
criminal
law
as
a
pretence
or
pretext,
or
that
the
legislature
is
in
pith
and
substance
only
interfering
with
civil
rights
in
the
Province.
Counsel
for
New
Brunswick
called
the
attention
of
the
Board
to
the
Report
of
the
Royal
Commission
on
Price
Spreads,
which
is
referred
to
in
the
order
of
reference.
It
probably
would
not
be
contended
that
the
statement
of
the
Minister
in
the
order
of
reference
that
the
section
was
enacted
to
give
effect
to
the
recommendations
of
the
Royal
Commission
bound
the
Provinces
or
must
necessarily
be
treated
as
conclusive
by
the
Board.
But
when
the
suggestion
is
made
that
the
legislation
was
not
in
truth
criminal
legislation,
but
was
in
substance
merely
an
encroachment
on
the
Provincial
field,
the
existence
of
the
report
appears
to
be
a
material
circumstance.’’
Proprietary
Articles
Trade
Association
v.
A.-G.
Canada
(supra)
was
an
appeal
from
a
judgment
of
this
Court
on
a
reference
by
the
Governor-in-Council.
The
only
mention
of
any
report
in
the
judgment
of
the
Judicial
Committee
is
of
a
report
by
a
select
committee
of
the
House
of
Commons
made
in
1888
which
preceded
the
enactment
in
1889
of
52
Victoria,
c.
41,
An
Act
for
the
prevention
and
suppression
of
combinations
formed
in
restrait
of
trade.
This
is
referred
to
(at
page
318)
as
part
of
‘‘the
history
of
the
Act
and
the
section
of
the
Code
so
far
as
it
has
been
laid
before
their
Lordships’’.
The
report
was
printed
as
part
of
the
factum
of
the
Attorney-General
for
Canada
in
this
Court.
It
was
not
referred
to
in
any
of
the
reasons
delivered
in
this
Court
and
there
is
no
discussion
as
to
whether
it
would
have
been
admissible
had
objection
been
taken
to
its
introduction
in
evidence.
It
will
be
observed
that
none
of
these
three
cases
decides
that,
in
an
action
inter
partes
raising
the
question
of
the
validity
of
a
statute,
a
report
of
a
Royal
Commission
is
admissible
in
evidence
if
objected
to.
In
civil
cases
the
rules
of
evidence
may
be
relaxed
by
consent
of
parties
and
this
was
done
in
Ladore
v.
Bennett.
There
is
nothing
in
the
judgment
of
the
Judicial
Committee
in
that
case
to
suggest
that
in
the
view
of
the
Board
the
decision
of
the
Court
of
Appeal
affirming
the
rejection
of
the
report
by
Hogg,
J.,
was
wrong
in
law.
It
is
scarcely
necessary
to
say
that
the
statement
that
the
rules
of
evidence
may,
in
civil
cases,
be
relaxed
by
the
consent
of
the
parties
does
not
mean
that
the
parties
can
empower
the
Court
to
found
its
decision
on
matters
which
are
not,
as
a
matter
of
law,
germane
to
the
issue
which
it
is
called
upon
to
decide;
it
means
rather
that
proof
of
matters
which
are
germane
may
be
made
in
such
manner
as
the
parties
agree
and
not
necessarily
in
strict
compliance
with
the
technical
rules
as
to
admissibility.
In
Home
Oil
Distributors
Ltd.
v.
A.-G.
British
Columbia
(supra)
an
action
was
brought
for
a
declaration
that
the
Coal
and
Petroleum
Products
Control
Board
Act,
B.C.
(1937),
¢.
8
was
ultra
vires
of
the
legislature
and
for
other
relief.
Manson,
J..,
at
the
trial,
held
that
certain
sections
of
the
Act
were
ultra
vires
and
granted
an
injunction.
The
Court
of
Appeal
unanimously
reversed
his
decision
on
the
merits
and
their
decision
was
upheld
by
this
Court.
The
plaintiff
tendered
in
evidence
a
report
made
by
a
commission
on
the
petroleum
industry.
Its
admission
was
objected
to
but
Manson,
J.,
over-ruled
the
objection.
On
appeal
this
ruling
was
upheld
by
a
majority
of
the
Court
of
Appeal,
Martin,
C.J.B.C.,
and
Sloan,
J.A.
;
MeQuarrie,
J.A.,
dissenting,
was
of
the
opinion
that
the
report
was
inadmissible.
The
report
consisted
of
three
volumes
only
the
first
two
of
which
were
in
existence
when
the
impugned
Act
was
passed.
On
an
interlocutory
appeal
Martin,
C.J.B.C.,
dealt
with
the
point
as
follows,
53
B.C.R.
355
at
pages
359
and
360
:
‘
It
is
submitted
by
appellants’
counsel
that
this
report
cannot
be
admitted
to
supply
facts
to
support
an
attempt
to
show
what
was
in
the
mind
of
the
Legislature
in
passing
a
statute
valid
ex
facie,
and
the
objection
is
one
of
primary
importance
because
it
is
conceded
by
respondents’
counsel
that,
if
the
report
cannot
be
resorted
to,
then
there
are
no
facts
before
us
to
support
an
attack
upon
the
validity
of
the
Act.
But
it
is
submitted
by
respondents’
counsel
that
the
report
should
be
admitted
as
being
that
of
a
commission
finding
facts
not
yet
contradicted
going
to
show
that
the
real
purpose
and
effect
of
the
Act
is
an
attempt
to
regulate
the
international
oil
industry
and
to
foster
our
native
coal
industry
at
the
expense
of
that
of
foreign
petroleum.
Many
cases
were
cited,
pro
and
con.,
which
have
received
careful
consideration
with
the
result
that
we
think
the
report
should
be
admitted
in
evidence
in
so
far
only
as
it
finds
facts
which
are
relevant
to
the
ascertainment
of
the
said
alleged
purpose
and
the
effect
of
the
enactment.’’
Sloan,
J.A.,
agreed
while
McQuarrie,
J.A.,
dissented.
In
giving
judgment
on
the
main
appeal
Sloan,
J.A.,
with
whom
Martin,
C.J.B.C.,
agreed,
said,
54
B.C.R.
48
at
page
7
1:
‘“In
leaving
this
appeal
I
would
make
short
reference
to
the
admissibility
in
evidence
of
the
report
of
the
Commissioner
on
the
Petroleum
Industry.
It
comprises
three
volumes
two
of
which
we
held
on
an
interlocutory
appeal
in
this
case
to
be
admissible
in
evidence
‘in
so
far
only
as
it
(the
report)
finds
facts
which
are
relevant
to
the
ascertainment
of
the
.
.
.
purpose
and
the
effect
of
the
enactment:’
(1938),
53
B.C.,
355
at
360.
I
see
no
reason
to
depart
from
the
conclusion
therein
reached
and
include
Vol.
IIT
within
that
ruling.
”
MeQuarrie,
J.A.,
as
mentioned,
dissented
as
to
this
ruling.
If
the
matter
rested.
here,
I
would
have
no
hesitation
in
preferring
the
conclusion
of
McQuarrie,
J.A.,
on
this
point
to.
that
of
the
majority
in
the
Court
of
Appeal,
but
it
is
necessary
to
consider
whether
a
contrary
view
was
expressed
in
the
judgment
of
this
Court.
The
appeal
to
this
Court
was
heard
by
six
members.
They
were
unanimous
in
holding
that
the
appeal
was
governed
by
the
judgment
of
the
Judicial
Committee
in
Shannon’s
case,
[1938]
A.C.
708,
and
should
be
dismissed.
Duff,
C.J.,
Crocket,
J.,
and
Hudson,
J.,
made
no
mention
of
the
report
in
their
reasons.
Kerwin,
J.
(as
he
then
was),
with
whom
Rinfret,
J.
(as
he
then
was),
agreed,
after
holding
that
the
Shannon
case
was
decisive
of
the
appeal,
ended
his
reasons
as
follows,
at
pages
447
and
448:
‘‘In
coming
to
this
conclusion
I
have
taken
the
report
of
a
commissioner
appointed
by
the
Lieutenant-Governor
in
Council
as
being
a
recital
of
what
was
present
to
the
mind
of
the
legislature,
in
enacting
the
principal
Act,
as
to
what
was
the
existing
law,
the
evil
to
be
abated
and
the
suggested
remedy
(Heydon’s
Case
(1584),
2
Coke’s
Rep.
18).
There
can,
I
think,
be
no
objection
in
principle
to
the
use
of
the
report
for
that
purpose,
and
Lord
Halsbury’s
dictum
in
Eastern
Photographic
Machine
Company
v.
Comptroller
General
of
Patents,
[1898]
A.C,
571,
at
575,
is
to
the
same
effect.
It
was
argued
by
counsel
for
the
appellants
that
the
statements
in
the
report
were
to
be
taken
as
facts
admitted
or
proved,
but
that
this
cannot
be
done
is
quite
clear
from
the
authorities,
the
most
recent
of
which
is
Assam
Railways
and
Traders
Company
v.
The
Commissioners
of
Inland
Revenue,
[1935]
A.C.
445.
I
have
not
considered
the
provisions
of
the
amending
Act
which
are
objected
to,
and
make
no
comment
as
to
those
provisions.
’
’
Davis,
J.,
deals
at
some
length
with
the
question
of
the
admissibility
and
possible
effect
of
the
report.
He
refers
to
the
Assam
ease,
[1935]
A.C.
445,
and
the
dictum
of
Lord
Halsbury
in
the
Eastman
Photographic
case,
[1898]
A.C.
571,
states
that
the
furthest
the
Courts
have
gone
recently
is
in
Ladore
v.
Bennett
(supra),
points
out
that
in
that
case
the
report
was
put
before
their
Lordships
by
consent
and
continues,
at
page
453
:
“A
rule
somewhat
wider
than
the
general
rule
may
well
be
necessary
in
considering
the
constitutionality
of
legislation
under
a
federal
system
where
legislative
authority
is
divided
between
the
central
and
the
local
legislative
bodies.
But
even
if
that
be
so,
the
legislation
here
in
question
is
expressly
confined
and
limited
to
the
sale
of
the
products
of
the
particular
industry
in,
and
for
use
in,
the
province
and
must,
upon
the
well
settled
authorities,
be
held
to
be
valid
legislation.’’
On
a
careful
reading
of
all
that
he
said
on
the
subject
it
would
appear
to
me
that
Davis,
J.,
expressed
no
final
opinion
on
the
admissibility
of
the
report.
I
have
reached
the
conclusion
that
there
is
no
decision
which
requires
us
to
hold
that
a
report
of
a
Royal
Commission
made
prior
to
the
passing
of
a
statute
and
relating
to
the
subjectmatter
with
which
the
statute
deals,
but
not
referred
to
in
the
statute,
is
admissible
in
evidence
in
an
action
seeking
to
impugn
the
validity
of
that
statute.
In
my
opinion
the
general
rule
is
that
if
objected
to
it
should
be
excluded.
If
I
am
right
in
this
conclusion
the
basis
of
Mr.
O’Brien’s
argument,
which
I
endeavoured
to
summarize
above,
disappears,
and
it
becomes
unnecessary
to
consider
whether
if
it
were
held
that
in
a
case
such
as
the
present
a
report
of
a
royal
commission
would
be
legally
admissible,
although
objected
to,
it
would
follow
that
the
statement
alleged
in
the
pleadings
to
have
been
made
by
the
Minister
who
introduced
the
bill
was
also
admissible.
It
may,
however,
be
well
to
recall
the
statement
of
Lord
Halsbury
in
Quinn
v.
Leathem,
[1901]
A.C.
495
at
506:
.
I
#4
.
.
a
case
is
only
an
authority
for
what
it
actually
decides.
I
entirely
deny
that
it
can
be
quoted
for
a
proposition
that
may
seem
to
follow
logically
from
it.’’
In
my
opinion
the
learned
Chief
Justice
of
the
Superior
Court
was
right
in
rejecting
the
evidence
which
is
the
subject-matter
of
this
appeal.
It
was
conceded
and
is
clear
on
the
authorities
that
the
statement
of
the
Minister
in
introducing
the
bill
would
be
inadmissible
in
aid
of
the
interpretation
of
the
statute
as
finally
passed
into
a
law.
I
can
discern
no
difference
in
principle
to
afford
a
sufficient
reason
for
holding
it
to
be
admissible
where,
the
words
of
the
statute
being
plain,
it
is
sought
to
show
that
Parliament
was
encroaching
upon
a
field
committed
exclusively
to
the
provincial
legislature.
The
nature
of
the
task
which
confronts
the
Court
when
such
a
claim
is
put
forward
has
been
dealt
with
in
many
judgments
of
the
Judicial
Committee
and
of
this
Court.
Nowhere,
I
think,
is
it
more
accurately
and
succinctly
stated
than
by
Duff,
C.J.,
in
Reference
re
Alberta
Statutes,
[1938]
S.C.R.
100.
After
stating
that
the
question
to
be
determined
in
relation
to
the
Act
respecting
the
Taxation
of
Banks
was
whether
it
was
an
enactment
in
exercise
of
the
provincial
power
to
raise
a
revenue
for
provincial
purposes
by
direct
taxation
or
was
legislation
which
in
its
true
character
related
to
the
incorporation
of
banks
and
banking,
he
said,
at
page
127
:
“The
judgment
of
the
Judicial
Committee
in
Union
Colliery
of
B.C.
Ltd.
v.
Bryden,
[1899]
A.C.
580,
is
sufficient
authority
for
the
proposition
that
the
answer
to
this
question
is
to
be
found
by
ascertaining
the
effect
of
the
legislation
in
the
known
circumstances
to
which
it
is
to
be
applied.”
This
statement
was
adopted
by
my
brother
Locke
in
giving
the
unanimous
judgment
of
this
Court
in
Texada
Mines
Ltd.
v.
A.-G.
British
Columbia,
[1960]
S.C.R.
713
at
page
722.
In
the
case
at
bar
it
will
be
open
to
the
parties
to
lead
evidence
to
show
the
circumstances
to
which
the
impugned
sections
are
to
be
applied
but
it
must
be
evidence
in
a
form
that
is
legally
admissible
and
the
statement
of
the
Minister,
alleged
in
the
plaintiff’s
declaration
to
have
been
made,
is
not
in
my
opinion
legally
admissible.
As
was
said
by
Viscount
Sumner
in
delivering
the
judgment
of
the
Judicial
Committee
in
A.-G.
Manitoba
v.
A.-G.
Canada,
[1929]
A.C.
260
at
page
268:
“The
matter
(i.e.
the
question
of
the
validity
of
the
statute)
depends
upon
the
effect
of
the
legislation
not
upon
its
purpose.
”
Something
was
said
in
argument
as
to
the
necessity
of
ascertaining
the
true
intention
of
Parliament
in
enacting
the
impugned
sections.
But
Parliament
is
an
entity
which
from
its
nature
cannot
be
said
to
have
any
motive
or
intention
other
than
that
which
is
given
expression
in
its
formal
acts.
While
he
was
speaking
of
an
incorporated
company,
the
words
of
Lord
Sumner
in
C.I.R.:
v.
Fisher’s
Executors,
[1926]
A.C.
395,
appear
to
me
to
apply
with
even
greater
force
to
Parliament,
consisting
as
it
does
of
the
Sovereign,
the
Senate
and
the
House
of
Commons.
At
page
411
Lord
Sumner
said:
“In
any
case
desires
and
intentions
are
things
of
which
a
company
is
incapable.
These
are
the
mental
operations
of
its
shareholders
and
officers.
The
only
intention
that
the
company
has
is
such
as
is
expressed
in
or
necessarily
follows
from
its
proceedings.
It
is
hardly
a
paradox
to
say
that
the
form
of
a
company’s
resolutions
and
instruments
is
their
substance.”
While
I
have
reached
the
conclusion
that
the
evidence
in
question
in
this
appeal
is
inadmissible
as
a
matter
of
law
under
the
authorities
and
on
principle
and
not
from
a
consideration
of
the
inconvenience
that
would
result
from
a
contrary
view,
it
may
be
pointed
out
that
if
it
were
held
that
the
Minister’s
statement
should
be
admitted
there
would
appear
to
be
no
ground
on
which
anything
said
in
either
House
between
the
introduction
of
the
bill
and
its
final
passing
into
a
law
could
be
excluded.
I
am
fortified
in
the
conclusion
at
which
I
have
arrived
by
the
dictum
of
my
brother
Locke
in
the
Texada
case
(supra)
at
page
720:
“At
the
trial
of
this
action
Sullivan
J.
considered
the
earlier
legislation
in
arriving
at
the
conclusion
that
the
statute
itself
was
invalid
as
being
an
attempt,
under
the
guise
of
imposing
a
direct
tax
upon
an
interest
in
land,
to
regulate
or
restrain
the
export
of
ore
and
concentrates
from
the
province.
While
that
learned
judge,
in
the
course
of
his
judgment,
referred
to
certain
statements
purporting
to
have
been
made
by
the
Premier
of
the
Province
and
the
Minister
of
Mines
to
the
effect
that
the
legislation
was
designed
to
discourage
the
export
of
iron
ore
so
that
eventually
an
integrated
steel
industry
could
be
established
in
the
province,
he
made
it
clear
that
he
came
to
his
conclusion
without
reference
to
this.
That
such
statement
had
been
made
was
not
proven
at
the
trial
and
had
the
evidence
been
tendered
it
would,
no
doubt,
have
been
rejected
as
inadmissible.”
I
realize
that
the
words
I
have
italicized
were
not
necessary
to
the
decision
of
that
appeal
but
they
were
concurred
in
by
every
member
of
the
full
Court.
In
my
opinion
they
correctly
state
the
law.
For
the
above
reasons
I
would
allow
the
appeal,
set
aside
the
judgment
of
the
Court
of
Queen’s
Bench,
restore
the
rulings
of
the
Superior
Court
on
the
objections
to
evidence
and
direct
that
the
record
be
returned
to
the
Superior
Court.
The
appellant
is
entitled
to
his
costs
in
this
Court
and
in
the
Court
of
Queen’s
Bench.
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