Supreme Court of Canada
Reference re legislative jurisdiction of Parliament of
Canada to enact the Natural Products Marketing Act, 1934, and The Natural
Products Marketing Act Amendment Act, 1935, [1936] S.C.R. 398
Date: 1936-06-17
In The Matter of a
Reference as to whether The Parliament of Canada Had Legislative Jurisdiction to
Enact The Natural Products Marketing Act, 1934, Being Chapter 57 of The
Statutes of Canada, 1934, and its Amending Act, The Natural Products Marketing
Act Amendment Act, 1935, Being Chapter 64 of The Statutes of Canada, 1935.
1936: February 73, 4; 1936: June 17.
Present: Duff C.J. and Rinfret, Cannon,
Crocket, Davis and Kerwin JJ.
Constitutional law—The Natural Products
Marketing Act, 1934, 24-25 Geo. V, c. 57, as amended in 1935 by 25-26 Geo. V,
c. 64—Constitutional validity—Regulation of trade.
The Natural Products Marketing Act, 1934,
and The Natural Products Marketing Act Amendment Act, 1935, are ultra vires of the Parliament of Canada.
In effect, these statutes attempt and, indeed,
profess, to regulate in the provinces of Canada, by the instrumentality of a
commission or commissions appointed under the authority of the statute, trade
in individual commodities and classes of commodities. The powers of regulation
vested in the commissions extend to external trade and matters connected
therewith and to trade in matters of interprovincial concern; but also to trade
which is entirely local and of purely local
[Page 399]
concern. Regulation of individual trades, or
trades in individual commodities in this sweeping fashion, is not competent to
the Parliament of Canada and such a scheme of regulation is not practicable “in
view of the distribution of legislative powers enacted by the Constitution Act,
without the co-operation of the provincial legislatures” (Board of Commerce case,
[1922] 1 A.C. 191, at 201). The legislation is not valid as an exercise of the
general authority of the Parliament of Canada under the introductory words of
section 91, B.N.A. Act, to make laws “for the peace, order and good government
of Canada.”
REFERENCE by His Excellency the Governor
General in Council to the Supreme Court of Canada, in the exercise of the
powers conferred by s. 55 of the Supreme Court Act (R.S.C., 1927, c.
35), of the following question: Is The Natural Products Marketing Act, 1934,
as amended by The Natural Products Marketing Act Amendment Act, 1935, or
any of the provisions thereof and in what particular or particulars or to what
extent, ultra vires of the Parliament of Canada?
The Order in Council referring the question
to the Court reads as follows:
The Committee of the Privy Council have had
before them a report, dated 31st October, 1935, from the Minister of Justice,
referring to the Natural Products Marketing Act, 1934, being chapter 57
of the statutes of Canada, 1934, and according to its long title “An Act to
improve the methods and practices of marketing of natural products in Canada
and in export trade, and to make further provision in connection therewith” and
to its amending Act, The Natural Products Marketing Act Amendment Act, 1935,
being chapter 64 of the statutes of Canada, 1935.
The Minister observes that doubts exist or
are entertained as to whether the Parliament of Canada had jurisdiction to
enact the said Acts, or either of them, in whole or in part, and that it is
expedient that the question should be referred to the Supreme Court of Canada
for judicial determination.
The Committee, accordingly, on the
recommendation of the Minister of Justice, advise that the following question
be referred to the Supreme Court of Canada, for hearing and consideration,
pursuant to section 55 of the Supreme Court Act,—
Is The Natural Products Marketing Act,
1934, as amended by The Natural Products Marketing Act Amendment
[Page 400]
Act, 1935, or
any of the provisions thereof and in what particular or particulars or to what
extent, ultra vires of the Parliament of Canada?
E.
J. Lemaire,
Clerk of the Privy Council.
The Natural Products Marketing Act, 1934, by s. 3 authorizes the Governor in Council to establish a
board, consisting of such number of persons as he may from time to time
determine, to be known as the Dominion Marketing Board, to regulate the
marketing of natural products as in the Act provided. By s. 2(c)
marketing’ includes buying and selling, shipping for sale or storage and
offering for sale.” By s. 2(e) as amended “‘natural product’ includes
animals, meats, eggs, wool, dairy products, grains, seeds, fruit and fruit
products, vegetables and vegetable products, maple products, honey, tobacco,
lumber and such other natural product of agriculture and of the forest, sea,
lake or river and such article of food or drink wholly or partly manufactured
or derived from any such product, and such article wholly or partly
manufactured or derived from a product of the forest as may be designated by
the Governor in Council.” The powers of the Board are made exercisable in
respect of a “regulated product”; and this expression is defined by sec. 2 (g)
as follows: “regulated product” means a natural product to which a scheme
approved under this Act relates, but does not include (i) in case the said
scheme relates only to the product of a part of Canada, such product in so far
as it is produced outside that part of Canada; (ii) in case the said scheme relates
only to the product marketed outside the province of production, such product
in so far as it is marketed within the province of production; (iii) in case
the said scheme relates only to the product exported, such product in so far as
it is not exported. The powers of the Board are set forth in broad terms in
par. (a) of sec. 4, ss. 1, of the Act as follows: “The Board shall,
subject to the provisions of this Act, have power (a) to regulate the
time and place at which, and to designate the agency through which the
regulated product shall be marketed, to determine the manner of distribution,
the quantity and quality, grade or class of the regulated product that shall be
marketed by any person at any time, and to prohibit the marketing of any of the
regulated product of any grade,
[Page 401]
quality or class.” Then follows a series of
paragraphs in which are more specifically described the Board’s functions and
powers. To exempt from any determination or order any person or class of
persons engaged in the production or marketing of the regulated product or any
class, variety or grade of such product; to conduct a pool for the equalization
of returns received from the sale of the regulated product and to compensate
any person for loss sustained by withholding from the market or forwarding to a
specified market any regulated product pursuant to an order of the Board,
except in specified cases; to compensate any person in respect of any shipment
made pursuant to any determination or order of the Board to a country whose
currency is depreciated, in relation to Canadian currency, for loss due to such
depreciation; to assist by grant or loan the construction or operation of
facilities for preserving, processing, storing, or conditioning the regulated
product and to assist research work relating to the marketing of such product;
to require any or all persons engaged in the production or marketing of the
regulated product to register their names, addresses and occupations with the
Board, or to obtain a licence from the Board, subject to cancellation for
violation of any provision of the Act or regulation made thereunder; to require
returns of full information relating to the production and marketing of the
natural product from all persons engaged therein and to inspect the books and
premises of such persons; to pay the operating and necessary expenses of the
Board; to co-operate with any board or agency established to regulate the
marketing of any natural product of such province and to act conjointly with
any such provincial board or agency. In addition, by sec. 4, ss. 2 to 8,
inclusive, the Board is empowered whenever a scheme for regulation by a local
board has been approved, to authorize the local board to exercise such of the
powers of the Board outlined in s. 4 as may be necessary for the proper
enforcement of the scheme of regulation, and at any time to withdraw such
authority from the local Board; to require the local Board to furnish full
information from time to time relating to the production and marketing of the
regulated product and to advise the local board in all matters relating to the
exercise of its powers; to impose (whether the Board be exercising the powers
conferred by this Act or by provincial legislation or whenever
[Page 402]
the Board or a local board co-operates or acts
conjointly with any provincial board or agency) for the purposes of any scheme
of regulation, charges and tolls in respect of the marketing of the whole or
any part of the regulated product which shall be payable by such persons engaged
in the production or marketing of the regulated product as the Board decides to
authorize the local board or such provincial board or agency to act as its
agent to collect and disburse the charges or tolls imposed; to utilize, or
authorize the local board or provincial board or agency to utilize, the fund
created by charges or tolls so imposed for the purposes of such scheme of
regulation including the creation of reserves; and any charge or toll so
imposed by the Board is declared to be a debt due to the Board recoverable by
legal action. The “schemes” to which the Act applies are such marketing schemes
as are approved by the Governor in Council and s. 5, ss. (4) provides as
follows: (4) Before any scheme is approved the Governor in Council shall be satisfied,
(a) that the principal market for the natural product is outside the
province of production; or “(b) that some part of the product produced
may be exported. Under s. 5, ss. (1) schemes may be submitted for approval by a
representative number of persons engaged in the production and marketing or the
production or marketing of a natural product, or under s. 9 the Minister
designated by the Governor in Council to administer the Act may propose a
scheme for the marketing or the regulation of the marketing of a natural
product in interprovincial or export trade whenever he is satisfied that the
trade and commerce in such product is injuriously affected by marketing
conditions through the lack of a local board. Section 10 provides that,
whenever a scheme of regulation relates to an area of production which is
confined within the limits of a province, the Governor in Council may authorize
any marketing board or agency established under the law of that province to be,
and to exercise the functions of, a local board with reference to the said
scheme. Section 11 empowers the Board to exercise any power conferred upon it
by or pursuant to provincial legislation with reference to the marketing of a
natural product and to authorize the local board to exercise any such power. In
point of fact each of the nine provinces in 1934 passed statutes to enable
their respective governments to give
[Page 403]
effect, in their respective
provinces, to the provisions of the Dominion Act and regulations made
thereunder. Section 12 authorizes the Governor in Council to regulate or
restrict the importation into Canada of any natural product which enters Canada
in competition with a regulated product or regulate or restrict the exportation
from Canada of any natural product. Part II of the Act (ss. 16 to 26) provides
for investigations by the Minister at the request of the Board or upon his own
initiative, “into the cost of production, wages, prices, spread, trade
practices, methods of financing, management, policies, grading, transportation
and other matters in relation to the production and marketing, adaptation for
sale, processing or conversion of any natural or regulated product.” (s. 17).
The term “spread” is defined in s. 16 (b) as follows: (b) “spread”
means and includes: (i) the charge made by any person by way of commission,
flat charge or otherwise for selling any natural or regulated product; (ii) the
charge made by any person for the storage, conditioning, re-conditioning,
packing, wrapping or otherwise preparing for market any natural or regulated
product; (iii) the difference or spread between the price at which any natural
or regulated product is purchased and the price at which it is sold; (iv) the
difference between the price at which any natural or regulated product is
purchased and the sale price of the product resulting from the adaptation for
sale, processing or conversion of the aforesaid natural or regulated product.”
Section 22 provides as follows: “22. Every person who, to the detriment or
against the interest of the public, charges, receives or attempts to receive
any spread which is excessive or results in undue enhancement of prices or
otherwise restrains or injures trade or commerce in the natural or regulated
product, shall be guilty of an indictable offence and liable to a penalty not
exceeding five thousand dollars or to two years’ imprisonment, or, if a
corporation, to a penalty not exceeding ten thousand dollars.” Sections 23 and
24 provide for prosecutions in a manner similar to that provided for in the Combines
Investigation Act.
The judgment of the Court was delivered by
Duff C.J.—Counsel on behalf of the Dominion based his argument in support
of the validity of this statute
[Page 404]
upon two grounds. It is argued, first, that it
is competent legislation under the general authority “to make laws for the
peace, order and good government of Canada”; and, second, it is competent
legislation in relation to matters coming within the second of the enumerated
heads of section 91—“The regulation of trade and commerce.” It will be
convenient to discuss first the last mentioned ground.
In substance, we are concerned with sections, 3,
4 and 5 of the statute.
By section 3, the Governor General is empowered
to
establish a Board to be known as the
Dominion Marketing Board to regulate the marketing of natural products as
hereinafter provided.
By section 4 (1) the Board is invested with
power
(a) to regulate the time and place
at which, and to designate the agency through which the regulated product shall
be marketed, to determine the manner of distribution, the quantity and quality,
grade or class of the regulated product that shall be marketed by any person at
any time, and to prohibit the marketing of any of the regulated product of any
grade, quality or class;
“Marketed” is used in an extended sense as
embracing “buying and selling, shipping for sale or storage and offering for
sale.”
The Board is also empowered,
(c) to conduct a pool for the
equalization of returns received from the sale of the regulated product; * * *
(ƒ) to require any or all persons engaged
in the production or marketing of the regulated product to register their
names, addresses and occupations with the Board, or to obtain a licence from
the Board, and such licence shall be subject to cancellation by the Board for
violation of any provision of this Act or regulation made thereunder;
Section 5 contains provisions for marketing
schemes under which the marketing of a natural product, to which the scheme
applies, is regulated by a local board under the supervision of the Dominion
Board.
For the purposes of the discussion, it will not
be necessary further to particularize the enactments of the statute. These
enactments, in our opinion, are not enactments within the contemplation of the
second head of section 91, “The regulation of trade and commerce” in the sense
which has been ascribed to those words by decisions which are binding upon us
and which it is our duty to follow.
It was argued by Mr. Rowell that two recent
decisions, Proprietary Articles Trade Association v. Attorney-General
[Page 405]
for Canada and the Aeronautics
Reference
manifest a departure by the Judicial Committee of the Privy Council from the
principles governing the application of the residuary clause, as well as of
this particular enactment which is also couched in very sweeping terms. In view
of the argument addressed to us, and, in view of the character of the
enactments under consideration, passed as recently as July, 1934, it would
appear to be desirable, if not, indeed necessary, to review afresh the
decisions and the grounds of the decisions by which this Court has hitherto
supposed itself to be governed in the interpretation and application of head
no. 2.
The judgment of the Board in Parsons case contains the well known elucidation of the
words “regulation of trade and commerce” which received the express approval of
the Judicial Committee in Wharton’s case.
The later cases, in which the Board had to consider the scope of the sphere of
jurisdiction designated by head no. 2 are the Montreal Street Railway case; A.G. for Canada v. A.G. for
Alberta; the Board
of Commerce case; A.G.
for B.C. v. A.G. for Canada; Toronto
Electric Commissioners v. Snider.
The discussion in Parsons case has been many times considered and sometimes
criticized. It is, we think, worth while to quote it in full (p. 112):
The words “regulation of trade and
commerce,” in their unlimited sense are sufficiently wide if uncontrolled by
the context and other parts of the Act, to include every regulation of trade
ranging from political arrangements in regard to trade with foreign
governments, requiring the sanction of parliament, down to minute rules for
regulating particular trades. But a consideration of the Act shews that the
words were not used in this unlimited sense. In the first place, the
collocation of No. 2 with classes of subjects of national and general concern
affords an indication that regulations relating to general trade and commerce
were in the mind of the legislature, when conferring this power on the Dominion
parliament. If the words had been intended to have the full scope of which in
their literal meaning they are susceptible, the specific mention of several of
the other classes of subjects enumerated in section 91 would have been unnecessary;
as 15, banking; 17, weights and measures; 18, bills of exchange and promissory
notes; 19, interest; and even 21, bankruptcy and insolvency.
[Page 406]
“Regulation of trade and commerce” may have
been used in some such sense as the words “regulations of trade” in the Act of
Union between England and Scotland (6 Anne, c. 11), and as these words have
been used in Acts of State relating to trade and commerce. Article V of the Act of Union enacted that all the
subjects of the United Kingdom should have “full freedom and intercourse of
trade and navigation” to and from all places in the United Kingdom and the
Colonies; and Article VI enacted that all parts of the United Kingdom from and
after the union should be under the same “prohibitions, restrictions, and
regulations of trade” Parliament has at various times since the Union
passed laws affecting and regulating specific trades in one part of the United
Kingdom only, without its being supposed that it thereby infringed the Articles
of Union. Thus the Acts for regulating the sale of intoxicating liquors
notoriously vary in the two kingdoms. So with regard to Acts relating to
bankruptcy, and various other matters.
Construing, therefore, the words “regulation
of trade and commerce” by the various aids to their interpretation above
suggested, they would include political arrangements in regard to trade
requiring the sanction of parliament, regulation of trade in matters of interprovincial
concern, and it may be that they would include general regulations of trade
affecting the whole Dominion. Their Lordships abstain on the present occasion
from any attempt to define the limits of the authority of the Dominion
parliament in this direction. It is enough for the decision of the present case
to say that, in their view, its authority to legislate for the regulation of
trade and commerce does not comprehend the power to regulate by legislation the
contracts of a particular business or trade, such as the business of fire
insurance in a single province, and therefore that its legislative authority
does not in the present case conflict or compete with the power over property
and civil rights assigned to the legislature of Ontario by No. 13 of section
92.
Having taken this view of the present case,
it becomes unnecessary to consider the question how far the general power to
make regulations of trade and commerce, when competently exercised by the
Dominion parliament, might legally modify or affect property and civil rights
in the provinces, or the legislative power of the provincial legislatures in
relation to those subjects;
The actual decision, it will be observed was
that the authority to legislate for the regulation of trade and commerce does
not contemplate the power to regulate by legislation the contracts of a
particular business or trade in a single province. But the judgment suggests,
although it does not decide, that this power of regulation does not extend to
the unlimited regulation of particular trades and occupations. On the other
hand, there is nothing in the judgment to indicate that the regulation of
external trade is excluded from the scope of the authority, nor is there
anything to suggest, whatever the precise scope of the power may be, that, when
Parliament is legislating with reference to matters strictly within the
regulation of trade and commerce, it is disabled from legislating in regard to
[Page 407]
matters otherwise exclusively within the
provincial authority if such legislation is necessarily incidental to the
exercise of its exclusive powers in relation to that subject.
The subject was further elucidated by the
judgment of the Judicial Committee in A.G. for Canada v. A.G. for
Alberta. There
it was held that this authority does not extend to regulation by a licensing
system of “a particular trade in which Canadians would otherwise be free to
engage in the provinces.” Here again there is no suggestion that trade in a
particular commodity, in so far as it is external trade or interprovincial trade,
is not within the exclusive regulative authority of the Dominion.
It is convenient at this point to revert to the
discussion of the subject which occurred in the Montreal Street Railway case. The judgment of the Board was written by
Lord Atkinson, and the Board included Lord Loreburn and Lord MacNaghten. The controversy
concerned the validity of an order made by the Board of Railway Commissioners
under the authority of a provision of the Dominion Railways Act which required
the owners of the Montreal Street Railway, a local work within the meaning of
the 10th heading of section 92, and normally subject, exclusively to the
control of the provincial legislature, to enter into an agreement with the
owners of the Montreal Park and Island Railway which was a railway subject to
the exclusive jurisdiction of the Parliament of Canada, and which connected
with the street railway, in relation to the rates to be charged by the
proprietors of the street railway in respect of through traffic passing over
the street railway and the Park and Island Railway.
Admittedly, the legislature of Quebec had no
authority to legislate in relation to such a matter as regards the Dominion
undertaking, and on various grounds it was contended that the Dominion
Parliament necessarily possessed authority to legislate in relation to through
traffic and for the provincial railway in respect of such traffic. This
authority was said to be bestowed by, inter alia, the residuary clause
and by head no. 2 of section 91, “The regulation of trade and commerce.” It was
necessary for the determination of the appeal that their Lordships should
pronounce upon both these contentions. They were examined
[Page 408]
in a single passage which we now quote. From the
judgment in A.G. for Ontario v. A.G. for Canada their Lordships adduced the following
principles as applicable to the case before them:
(1) that the exception contained in s. 91,
near its end, was not meant to derogate from the legislative authority given to
provincial legislatures by the 16th subsection of s. 92, save to the extent óf enabling the Parliament of Canada to deal
with matters, local or private, in those cases where such legislation is
necessarily incidental to the exercise of the power conferred upon that
Parliament under the heads enumerated in s. 91; (2) that to those matters which
are not specified amongst the enumerated subjects of legislation in s. 91 the
exception at its end has no application, and that in legislating with respect
to matters not so enumerated the Dominion Parliament has no authority to
encroach upon any class of subjects which is exclusively assigned to the
provincial Legislature by s. 92; (3) that these enactments, ss. 91 and 92,
indicate that the exercise of legislative power by the Parliament of Canada in
regard to all matters not enumerated in s. 91 ought to be strictly confined to
such matters as are unquestionably of Canadian interest and importance, and
ought not to trench upon provincial legislation with respect to any classes of
subjects enumerated in s. 92; (4) that to attach any other construction to the
general powers which, in supplement of its enumerated powers, are conferred
upon the Parliament of Canada by s. 91 would not only be contrary to the
intendment of the Act, but would practically destroy the autonomy of the
provinces; and, lastly, that if the Parliament of Canada had authority to make
laws applicable to the whole Dominion in relation to matters which in each
province are substantially of local or private interest, upon the assumption
that these matters also concern the peace, order and good government of the
Dominion, there is hardly a subject upon which it might not legislate to the
exclusion of provincial legislation. (1912, A.C. at p. 343).
Their Lordships then proceeded,
The same considerations appear to their
Lordships to apply to two of the matters enumerated in s. 91, namely, the
regulation of trade and commerce. Taken in their widest sense these words would
authorize legislation by the Parliament of Canada in respect of several of the
matters specifically enumerated in s. 92, and would seriously encroach upon the
local autonomy of the province. In their Lordships’ opinion these
pronouncements have an important bearing on the question for decision in the
present case, though the case itself in which they were made was wholly
different from the present case, and the decision given in it has little if any
application to the present case. They apparently established this, that the
invasion of the rights of the province which the Railway Act and the Order of
the Commissioners necessarily involve in respect of one of the matters
enumerated in s. 92, namely, legislation touching local railways, cannot be
justified on the ground that this Act and Order concern the peace, order and
good government of Canada nor upon the ground that they deal with the regulation
of trade and commerce.
The general expressions in this passage must, of
course, be read in the light of the controversy with which their
[Page 409]
Lordships were dealing. They were, as we have
seen, discussing the question raised as to the authority of the Dominion in
exercise of its powers in regard to regulation of trade and commerce to
legislate for a local work or undertaking of the character assigned, prima
facie, exclusively to the jurisdiction of the province by section 92 (10).
But the passage, as was pointed out in this court in Lawson v. Interior
Tree Fruit & Vegetable Committee,
signalizes the distinction between that which is national in its scope and
concern and that which in each of the provinces is of private or local, that is
to say, of provincial interest, which must be observed in deciding whether a
particular enactment falls within the Dominion authority respecting the
regulation of trade and commerce.
In A.G. for B.C. v. A.G. for Canada, the Board dealt with the subject of the regulation
of external trade. The question before the Board in that case concerned the
authority of the Dominion of Canada to impose customs duties upon alcoholic
liquors imported into Canada by the Government of British Columbia for the
purpose of sale by that government. It was pointed out in the judgment
delivered by Lord Buckmaster; that the imposition of customs duties may have
for its object regulation of trade and commerce, or it may have the twofold
purpose of regulating trade and commerce and raising money; and it was held
that section 125 of the B.N.A. Act, which prohibits the taxation of the
property of the Crown, ought not to be so construed and applied as to interfere
with the authority of the Parliament of Canada to regulate trade and commerce and
to impose customs duties for that purpose.
This decision seems very plainly to involve the
proposition that, by an enactment of the Parliament of Canada, trade in a
particular commodity or class of commodities may be subjected to regulation
through the instrumentality of customs duties.
There is another decision the mention of which
ought not to be omitted, viz., the decision of 1885 of the Judicial Committee
on the reference concerning the validity of the Dominion Liquor Licence Acts
where their Lordships held that a system for the local licensing of the liquor
trade was
[Page 410]
beyond the competence of the Dominion Parliament
to establish.
It would appear to result from these decisions
that the regulation of trade and commerce does not comprise, in the sense in
which it is used in section 91, the regulation of particular trades or
occupations or of a particular kind of business such as the insurance business
in the provinces, or the regulation of trade in particular commodities or
classes of commodities in so far as it is local in the provincial sense; while,
on the other hand, it does embrace the regulation of external trade and the
regulation of inter-provincial trade and such ancillary legislation as may be
necessarily incidental to the exercise of such powers.
There is another class of regulation which has
been held to fall within the purview of head no. 2 (John Deere Plow Co. v.
Wharton:
regulation which is auxiliary to some Dominion measure dealing with matters not
falling within section 92, such, for example, as the incorporation of Dominion
companies.
Obviously, these propositions do not furnish a
complete definition of the authority given by the second subdivision of section
91. Logically, they leave scope for a possible jurisdiction in relation to “general
trade and commerce” or in relation to “general regulations of trade applicable
to the whole Dominion”—phrases employed in the judgment in Parson’s case.
Broadly speaking, they have their basis in the consideration mentioned in Parsons
case arising
from the specification of particular subjects in section 91 and from the
necessity to limit the natural scope of the words,
in order to preserve from serious
curtailment, if not from virtual extinction, the degree of autonomy, which as
appears from the scheme of the Act as a whole, the provinces were intended to
enjoy. (Lawson’s case).
Restrictions upon the natural meaning of the
words, in so far as they are dictated by force of such considerations, may
properly be accepted as the necessary result of the application of settled
principles of construction pursuant to which, from the beginning, it has been
recognized that, in considering sections 91 and 92, the language of each must
be read in light of the other and in some cases even modified for the purpose
of giving effect to the two sections.
[Page 411]
The necessity for some such restriction seems to
be demonstrable by reference to the concluding clause of s. 91 which is in
these words:
Any matter coming within any of the classes
of subjects enumerated in this section shall not be deemed to come within the
class of matters of a local or private nature comprised in the enumeration of
the classes of subjects by this Act assigned exclusively to the legislatures of
the provinces.
In A.G. for Ontario v. A.G. for Canada it was held that the language of this
exception was meant to include all matters enumerated within the sixteen heads
of s. 92; and in A.G. for Canada v. A.G. for Ontario it was laid down and decided that section
91 contains a legislative declaration that legislation upon any matter falling
strictly within any of the classes of subjects specially enumerated in s. 91 is
not within the competence, as matter of legislation, of a provincial
legislature under s. 92.
Whenever * * * a matter is within one of
these specified classes, their Lordships said, legislation in relation to it by
a Provincial Legislature is in their Lordships’ opinion incompetent.
The decision in Hodge v. The Queen that it is competent to a province to
regulate by a local licensing system the trade in liquor seems incompatible
with the contention that such local regulation of the trade in particular
commodities is strictly within any of the classes of matters comprehended under
the general words “The regulation of trade and commerce”; and this was the view
taken by the Board in the case of A.G. for Alberta v. A.G. for Canada. Such was also, it would appear, the
necessary effect of the judgment of the Board on the Reference in 1885 in
relation to the Dominion Licensing Acts which has already been mentioned.
It does not seem to admit of serious dispute
that, if, regards natural products, as defined by the Act, the provinces are
destitute of the powers to regulate the dealing with natural products in
respect of the matters designated in section 4 (1), a, the powers of the
provinces are much more limited than they have generally been supposed to be.
If this defect of power exists in relation to natural products
[Page 412]
it exists in relation to anything that may be
the subject of trade. Furthermore, if the Dominion has power to enact section 4
(1) f, as a provision falling strictly within “the regulation of trade and commerce,”
then the provinces are destitute of the power to regulate, by licensing persons
engaged in the production, the buying and selling, the shipping for sale or
storage and the offering for sale, in an exclusively local and provincial way
of business of any commodity or commodities. The acceptance of this view of the
powers of the provinces would seem to be inconsistent, not only with Hodge v.
The Queen, but
with the judgment in the Montreal Street Railway case as well as with the judgment in the Board
of Commerce case. The
judgment in this latter case seems very plainly to declare that in the absence
of very special circumstances such as those indicated in the judgment of the
Board, such matters as subjects of legislation fall within the jurisdiction of
the provinces under section 92.
The enactments in question, therefore, in so far
as they relate to matters which are in substance local and provincial are
beyond the jurisdiction of Parliament. Parliament cannot acquire jurisdiction
to deal in the sweeping way in which these enactments operate with such local
and provincial matters by legislating at the same time respecting external and interprovincial
trade and committing the regulation of external and interprovincial trade and
the regulation of trade which is exclusively local and of traders and producers
engaged in trade which is exclusively local to the same authority (King v.
Eastern Terminal Elevators).
It should also be observed that these enactments
operate by way of the regulation of dealings in particular commodities and
classes of commodities. The regulations contemplated are not general
regulations of trade as a whole or regulations of general trade and commerce
within the sense of the judgment in Parson’s case.
We come now to the judgments in the Board of
Commerce case and Snider’s case.
In Snider’s case, the view of the Board is stated in the
following passage:
[Page 413]
Nor does the invocation of the specific
power in s. 91 to regulate trade and commerce assist the Dominion contention.
In Citizens Insurance Co. v. Parsons, it was laid down that the collocation of
this head (No. 2 of s. 91), with classes of subjects enumerated of national and
general concern, indicates that what was in the mind of the Imperial
Legislature when this power was conferred in 1867 was regulation relating to
general trade and commerce. Any other construction would, it was pointed out,
have rendered unnecessary the specific mention of certain other heads dealing
with banking, bills of exchange and promissory notes, as to which it had been
significantly deemed necessary to insert a specific mention. The contracts of a
particular trade or business could not, therefore, be dealt with by Dominion
legislation so as to conflict with the powers assigned to the Provinces over
property and civil rights relating to the regulation of trade and commerce. The
Dominion power has a really definite effect when applied in aid of what the
Dominion Government are specifically enabled to do independently of the general
regulation of trade and commerce, for instance, in the creation of Dominion
companies with power to trade throughout the whole of Canada. This was shown in
the decision in John Deere Plow Co. v. Wharton. The same thing is true of the exercise of
an emergency power required, as on the occasion of war, in the interest of
Canada as a whole, a power which may operate outside the specific enumerations
in both ss. 91 and 92. And it was observed in A.G. for Canada v. A.G.
for Alberta, in
reference to attempted Dominion legislation about insurance, that it must now
be taken that the authority to legislate for the regulation of trade and commerce
does not extend to the regulation, for instance, by a licensing system, of a
particular trade in which Canadians would otherwise be free to engage in the
provinces. It is, in their Lordships’ opinion, now clear that, excepting so far
as the power can be invoked in aid of capacity conferred independently under
other words in s. 91, the power to regulate trade and commerce cannot be relied
on as enabling the Dominion Parliament to regulate civil rights in the
provinces.
It is quite obvious that their Lordships are
here not dealing with the regulation of external trade or the regulation of
trade in matters of interprovincial concern. For our present purpose, it seems
sufficient to say that their Lordships deemed it necessary or expedient for the
purpose of dealing with an argument addressed to them to discuss the scope of
the power conferred by head no. 2 of section 91; and that, on any conceivable
construction of the words, it would appear to be impossible consistently with
them to support the authority of the statute under consideration.
As to the decision on the Aeronautics
Reference and
the Radio Reference, it
does not seem necessary to enter upon a minute analysis of the judgments in
those cases. The decision on the Radio Reference
proceeded on two grounds: first, for the reasons fully explained in the
judgment,
[Page 414]
the legislation in question (being legislation
for giving effect to an international obligation binding upon Canada) was
within the ambit of the powers conferred by the residuary clause; and, second,
that instruments employed in radio transmission fall within the class of
undertakings which, by the combined operation of head no. 10 of section 92 and
head no. 29 of section 91, are within the exclusive jurisdiction of Canada. In the last mentioned judgment it
was pointed out that the decisions in the Aeronautics Reference proceeded mainly upon the application of
section 132. The subject-matters of the enactments and regulations actually or
hypothetically considered in those two cases have no sort of resemblance to the
subject matter of this legislation.
There is nothing in either of these judgments to
justify an inference that their Lordships intended to overrule the long series
of their own decisions hereinbefore mentioned; or the reasons upon which those
decisions were founded.
There is one further observation which, perhaps,
ought not to be omitted although it may be a mere corollary of what has already
been said. Legislation necessarily incidental to the exercise of the undoubted
powers of the Dominion in respect of the regulations of trade and commerce is
competent although such legislation may trench upon subjects reserved to the
provinces by section 92, but it cannot, we think, be seriously contended that
sweeping regulation in respect of local trade, such as we find in this
enactment, is, in the proper sense, necessarily incidental to the regulation of
external trade or interprovincial trade or both combined.
The scheme of this statute in respect of its
essential enactments would not appear to be practicable as a legislative
scheme.
in view of the distribution of legislative
powers enacted by the Constitution Act, without the co-operation of the
provincial legislatures
to quote from the judgment of the Judicial
Committee in Re the Board of Commerce Act.
Turning now to the contention that this statute
is a valid exercise of the power of Parliament under the introductory clause of
section 91, there is a preliminary observation to be made. This argument has
been pressed upon us in
[Page 415]
support of six of the statutes which have been
referred to us for consideration. These are the statutes relating to the Minimum
Wages, to Limitation of Hours of Work, to a Weekly Rest Day; to
Employment and Social Insurance; to Farmers’ Creditors Arrangements and
to the statute immediately under consideration, the Natural Products
Marketing Act. The discussion which follows was written with special
reference to the first three of these statutes; the argument upon the reference
relating to them being that, apart altogether from the circumstance that the
subject matters of the enactments are subjects of international agreements in
respect of which international obligations have been assumed, they are dealt
with in aspects which do not fall under section 92 and can only be the subject
matter of legislation under the initial clause of section 91. What follows,
however, in substance pertains to the argument as presented in support of all
the statutes mentioned and it has been thought convenient to produce it in this
place.
It is important not to lose sight of the
language of the statute itself. The initial words of section 91 empower
the Queen by and with the advice and
consent of the Senate and the House of Commons to make laws for the peace,
order and good government of Canada in relation to all matters not coming
within the classes of subjects by this Act assigned exclusively to the
legislatures of the provinces.
By section 92,
in each province the legislature may
exclusively make laws in relation to matters coming within the classes of
subjects
enumerated. These classes of subjects include
(No. 13)
Property and Civil Rights in the Province.
By section 94,
Notwithstanding anything in this Act, the
Parliament of Canada may make provision for the uniformity of all or any of the
laws relative to property and civil rights in Ontario, Nova Scotia, and New
Brunswick, and of the procedure of all or any of the courts in those three
provinces, and from and after the passing of any Act in that behalf the power of
the Parliament of Canada to make laws in relation to any matter comprised in
any such Act shall, notwithstanding anything in this Act, be unrestricted; but
any Act of the Parliament of Canada making provision for such uniformity shall
not have effect in any province unless and until it is adopted and enacted as
law by the legislature thereof.
Section 94, it will be observed, has no
application to Quebec.
Language could not be more plain or, indeed,
more explicit to declare that the subjects, Property and Civil Rights,
[Page 416]
are not subjects assigned to the Parliament of
Canada under the initial words of section 91.
We are not concerned with the enumerated
subjects assigned to Parliament under the second limb of that section; or with
the concluding paragraph of the section which, as the Courts have recognized,
has obviously no application to the first limb of the section, which alone is
now pertinent.
It is settled by the decisions of the Judicial
Committee that the phrase “Property and Civil Rights” is used in the “largest
sense,” subject, of course, to the limitations arising expressly from the
exception of the enumerated heads of section 91, and impliedly from the
specification of subjects in section 92.
It is to be observed, said the Board in Citizens
Insurance Co. v. Parsons, that
the same words, “civil rights,” are employed in the Act of 14 Geo. 3, c. 83,
which made provision for the Government of the Province of Quebec. Section 8 of
that Act enacted that His Majesty’s Canadian subjects within the province of
Quebec should enjoy their property, usages, and other civil rights, as they had
before done, and that in all matters of controversy relative to property and
civil rights resort should be had to the laws of Canada, and be determined
agreeably to the said laws. In this statute the words “property” and “civil
rights” are plainly used in their largest sense; and there is no reason for
holding that in the statute under discussion they are used in a different and
narrower one.
The legislation admittedly affects civil rights
and interferes with, and controls, and regulates the exercise in every one of
the provinces of the civil rights of the people in those provinces; but it is
said that the real subject matter of the legislation is not these civil rights,
which are controlled and regulated, but something else.
The initial clause of section 91 has been many
times considered. There is no dispute now that the exception which excludes
from the ambit of the general power all matters assigned to the exclusive authority
of the legislatures must be given its full effect. Nevertheless, it has been
laid down that matters normally comprised within the subjects enumerated in
section 92 may, in extraordinary circumstances, acquire aspects of such
paramount significance as to take them outside the sphere of that section.
The argument is mainly supported by two
sentences in the judgment of the Board in A.G for Ontario v. A.G. for
Canada. The
judgment of the Board in that case was
[Page 417]
directed to the answers to be given to certain
questions submitted by the Governor General in Council to this Court, all of
which questions immediately concerned the jurisdiction of a provincial
legislature in respect of the prohibition of certain phases of the liquor
traffic. The two sentences occur in the discussion of the seventh question
which relate to the jurisdiction of the Ontario Legislature to enact a section
of a statute of that Province entitled “An Act respecting local option in the
matter of liquor selling.” In the course of that discussion, their Lordships
dealt with the general authority given to the Parliament of Canada under the
first of the introductory enactments of section 91 which is quoted above, and
their Lordships observed,
* * * to those matters which are not specified
among the enumerated subjects of legislation, the exception from s. 92, which
is enacted by the concluding words of s. 91, has no application; and, in
legislating with regard to such matters, the Dominion Parliament has no
authority to encroach upon any class of subjects which is exclusively assigned
to provincial legislatures by s. 92. These enactments appear to their Lordships
to indicate that the exercise of legislative power by the Parliament of Canada,
in regard to all matters not enumerated in s. 91, ought to be strictly confined
to such matters as are unquestionably of Canadian interest and importance, and
ought not to trench upon provincial legislation with respect to any of the
classes of subjects enumerated in s. 92. To attach any other construction to
the general power which, in supplement of its enumerated powers, is conferred
upon the Parliament of Canada by s. 91, would, in their Lordships’ opinion, not
only be contrary to the intendment of the Act, but would practically destroy
the autonomy of the provinces. If it were once conceded that the Parliament of
Canada has authority to make laws applicable to the whole Dominion, in relation
to matters which in each province are substantially of local or private
interest, upon the assumption that these matters also concern the peace, order
and good government of the Dominion, there is hardly a subject enumerated in s.
92 upon which it might not legislate, to the exclusion of the provincial
legislatures.
Their Lordships proceeded, in the two sentences
which are now mainly relied upon,
Their Lordships do not doubt that some
matters, in their origin local and provincial, might attain such dimensions as
to affect the body politic of the Dominion, and to justify the Canadian
Parliament in passing laws for their regulation or abolition in the interest of
the Dominion. But great caution must be observed in distinguishing between that
which is local and provincial, and therefore within the jurisdiction of the
provincial legislatures, and that which has ceased to be merely local or
provincial, and has become matter of national concern, in such sense as to
bring it within the jurisdiction of the Parliament of Canada.
It seems to us right, if these two sentences are
to be properly understood, that they should be read with the preceding
sentences; and experience seems to shew that there
[Page 418]
has been a disposition not to attend to the
limits implied in the carefully guarded language in which the Board expressed
itself. It has been assumed, apparently, that they lay down a rule of
construction the effect of which is that all matters comprised in any one of
the enumerated subdivisions of section 92 may attain “such dimensions as to …
cease to be merely local or provincial” and become in some other aspect of them
matters relating to the “peace, order and good government of Canada” and
subject to the legislative jurisdiction of the Parliament, of Canada.
The difficulty of applying such a rule to
matters falling, within the first subdivision, for example, of section 92,
which relates to the amendment of the provincial constitutions “notwithstanding
anything in this Act,” must be very great. On the face of the language of the
statute, the authority seems to be intended to be absolute. In other words, it
seems to be very clearly stated that matters comprised within the subject
matter of the constitution of the province “except as regards the office of
Lieutenant-Governor” are matters local and provincial, and that they are not
matters which can be comprised in any of the classes of subjects of section 91.
Then the decision in the Montreal Park &
Island Railway v. City of Montreal
seems to be final upon the point that local works and undertakings, subject to
the exceptions contained in subdivision no. 10 of section 92 and matters
comprised within that description, are matters local and provincial within the
meaning of section 92 and excepted from the general authority given by the
introductory enactment of section 91.
The same might be said of the solemnization of
marriage in the province. Marriage and divorce are given without qualification
to the Dominion under subdivision 26 of section 91, but the effect of section
92 (12), it has been held, is to exclude from the Dominion jurisdiction in
relation to marriage and divorce the subject of solemnization of marriage in
the province. It is very difficult to conceive the possibility of solemnization
of marriage, in the face of this plain declaration by the legislature, assuming
aspects which would bring it within the general authority of the
[Page 419]
Dominion in relation to peace, order and good
government, in such fashion, for example, as to enable the Dominion to prohibit
or to deprive of legal effect a religious ceremony of marriage. The like might
be said of no. 2, Taxation within the Province; the Borrowing of Monies on the
Sole Credit of the Province; Municipal Institutions in the Province; and the
Administration of Justice, including the constitution of the Courts and
Procedure in Civil Matters in the Courts.
In the Manitoba Licence Holders case, Lord Macnaghten, speaking for a Board
which included Lord Hob-house, Lord Davey, Lord Robertson and Lord Lindley,
said that, in their Lordships’ view, it was doubtful if the Canada Temperance
Act could be sustained as valid legislation by the Dominion on the assumption
that the matter of statute was comprised within section 13.
* * * a careful perusal of the judgment (in
A.G. for Ontario v. A.G. for the Dominion), leads to the conclusion that, in the
opinion of the Board, the case fell under No. 16 rather than under No. 13. And
that seems to their Lordships to be the better opinion.
The judgment proceeds:—
Indeed, if the case is to be regarded as
dealing with matters within the class of subjects enumerated in No. 13, it might
be questionable whether the Dominion Legislature could have authority to
interfere with the exclusive jurisdiction of the province in the matter.
Lord Davey, who took part in this judgment, was
a member of the Board which pronounced the judgment containing the two
sentences under discussion.
As we have said, Lord Watson’s language is
carefully guarded. He does not say that every matter which attains such
dimensions as to effect the body politic of the Dominion falls thereby within
the introductory matter of section 91. But he said that “some matters” may
attain such dimensions as to affect the body politic of the Dominion and, as we
think the sentence ought to be read having regard to the context, in such
manner and degree as may “justify the Canadian Parliament in passing laws for
their regulation or abolition. …” So, in the second sentence, he is not dealing
with all matters of “national concern” in the broadest sense of those words,
but only those which are matter of national concern “in
[Page 420]
such sense” as to bring them within the
jurisdiction of the Parliament of Canada.
The application of the principle implicit in
this passage must always be a delicate and difficult task. That is shewn by
reference to the history of the Canada Temperance Act. The prohibitory clauses
of the legislation undoubtedly do affect civil rights directly but, in Russell
v. The Queen, the
Board took the view that the real subject matter of the legislation was not
property and civil rights, but matter connected with public order and having a
close relation to the criminal law. It was likened to “laws which place
restrictions on the sale or custody of poisonous drugs, or of dangerously
explosive substances … on the ground that the free sale or use of them is
dangerous to public safety, and making it a criminal offence … to violate these
restrictions. …” It was described as “legislation … relating to public order
and safety,” and belonging to the class of “Laws … for the promotion of public
order, safety, or morals, and which subject those who contravene them to
criminal procedure and punishment. …”
Unfortunately, on this point, the case was
unargued, Mr. Benjamin conceding that the enactments would have fallen within
the general authority of the Dominion if it had been brought into force
immediately throughout every part of the Dominion. The difficulty has been
pointed out more than once of reconciling this decision with the subsequent
decision of a very powerful Board in the Dominion Liquor Licence case, in which
an Act of the Dominion Parliament regulating by licence the sale of liquor
throughout the Dominion was held to be ultra vires notwithstanding the
following preamble:
Whereas it is desirable to regulate the
traffic in the sale of intoxicating liquor, and it is expedient that the law
respecting the same should be uniform throughout the Dominion, and that
provision should be made in regard thereto for the better preservation of peace
and order;
And, in the judgment of Lord Watson in A.G.
for Ontario v. A.G. for Canada it is
observed (p. 362):
The judgment of this Board in Russell v.
Regina has relieved their Lordships from the
difficult duty of considering whether the Canada Temperance Act of 1886 relates
to the peace, order and good government of Canada, in such sense as to bring
its provisions within the competency of the Canadian Parliament.
[Page 421]
Russell v. The
Queen has
been explained in a more recent decision and we shall come to that in a moment.
The point we are now concerned with is this: The question whether the
prohibition and the regulation of the right to manufacture or deal in
intoxicating liquors throughout the Dominion could, by reason of its analogy to
legislation regulating or suppressing the sale of poisonous drugs or
explosives, the manufacture and sale of poisonous drugs and explosives, and the
connection between the matters dealt with and public order and the criminal
law, be justified as legislation within the initial clause of section 91 is a
question in respect of which the great judges who had to consider the cases we
have mentioned found themselves in doubt and difficulty. Lord Watson’s
admonition to the courts to observe “great caution” in considering such matters
is one that will not be lightly disregarded by prudent judges. The words of the
passage in Lord Watson’s judgment in themselves are not intended, obviously, to
provide a test for determining in any given case whether a matter falling
within “Property and Civil Rights” in the province has acquired such aspects as
to take it out of the classes of subjects dealt with in section 92. The
interpretation of Lord Watson’s language in this sense by the judgment of the
Board in Montreal v. Montreal Street Railway is, if we may say so, fully justified by
that judgment when read as a whole. We may add that Lord Macnaghten, who wrote
the judgment in the Manitoba Licence Holders case, was also a member of the Board who
decided the Montreal case. In performing the very difficult task
of deciding upon such questions, the courts must have regard to the provisions
of the B.N.A. Act as a whole and to the practical application of the
introductory enactment of section 91 in the decisions of the courts. In
considering these decisions, it is important to read what is said in the light
of the thing that was decided; and it is fundamental that the interpretation
and application of sections 91 and 92 of the B.N.A. Act cannot be controlled by
particular expressions used in a judgment torn from their context and given the
broadest meaning of which the words are capable without any reference
[Page 422]
to that context or to the particular controversy
to which the language was directed.
The necessity for Lord Watson’s admonition
becomes more clear when we recall that there is only one case in which the
Judicial Committee has held that legislation with regard to matters which were
admittedly ex facie civil rights within a province, had by reason of
exceptional circumstances acquired aspects and relations bringing them within
the ambit of the introductory clause. That case is Fort Frances Pulp &
Power Co. v. Manitoba Press.
Before dealing with the Fort Frances case,
it will be necessary to refer to two other decisions, in the Board of
Commerce Act case and in
Toronto Electric Commissioners v. Snider.
In the Board of Commerce case the Judicial
Committee had to consider legislation by which a Dominion Board was constituted
and empowered, broadly speaking, to inquire into, and prohibit, profiteering
and practices in connection therewith in dealings in the necessaries of life.
In particular, the Board had authority to regulate the prices of such
necessaries of life.
The question arose upon a case stated as to the
validity of an order made by the Board regulating the prices of ready made
clothing in certain establishments in Ottawa. The validity of the order was
attacked by the associations of manufacturers concerned and was supported by
counsel on behalf of the Board and of the Dominion. The litigation raised the
concrete question inter partes as to the legality of the particular
order; and the answer to that question turned upon the answer to the question
concerning the validity of the legislation, which it was, therefore, essential
to determine. The statute was supported on various grounds and, among others,
on the ground that in the year 1919, when it was enacted, the evils of hoarding
and high prices in respect of the necessaries of life had attained such
dimensions “as to affect the body politic of Canada.” Nobody denied the
existence of the evil. Nobody denied that it was general throughout Canada.
Nobody denied the importance of suppressing it. Nobody denied that it
prejudiced and seriously prejudiced the well being of the
[Page 423]
people of Canada as a whole, or that in a loose,
popular sense of the words it “affected the body politic of Canada.” Nevertheless, it was held that
these facts did not constitute a sufficient basis for the exercise of
jurisdiction by the Dominion Parliament under the introductory clause in the
manner attempted. The Board said that in special circumstances, such as those
of a great war, the interest of the Dominion in the matters might conceivably
become of such paramount and overriding importance as to lie outside the heads
of section 92 and not be covered by them. But it is, they held, quite another
matter to say that under normal circumstances, general Canadian policy can
justify interference, on the scale of the statutes than in controversy, with
the property and civil rights of the inhabitants of the provinces.
It has already been observed that
circumstances are conceivable, such as those of war or famine, when the peace,
order and good government of the Dominion might be imperilled under conditions
so exceptional that they require legislation of a character in reality beyond
anything provided for by the enumerated heads in either s. 92 or s. 91 itself.
Such a case, if it were to arise, would have to be considered closely before
the conclusion would properly be reached that it was one which could not be
treated as falling under any of the heads enumerated. Still, it is a
conceivable case, and although great caution is required in referring to it,
even in general terms, it ought not, in the view their Lordships take of the
British North America Act, read as a whole, to be excluded from what is
possible. For throughout the provisions of that Act there is apparent the
recognition that subjects which would normally belong exclusively to a
specifically assigned class of subject may, under different circumstances and
in another aspect, assume a further significance. Such an aspect may
conceivably become of paramount importance, and of dimensions that give rise to
other aspects. This is a principle which, although recognized in earlier
decisions, such as that of Russell v. The Queen, both here and in the Courts of Canada,
has always been applied with reluctance, and its recognition as relevant can be
justified only after scrutiny sufficient to render it clear that the
circumstances are abnormal. In the case before them, however important it may seem
to the Parliament of Canada that some such policy as that adopted in the two
Acts in question should be made general throughout Canada, their Lordships do
not find any evidence that the standard of necessity referred to has been
reached, or that the attainment of the end sought is practicable, in view of
the distribution of legislative powers enacted by the Constitution Act, without
the co-operation of the Provincial Legislatures.
The reluctance of the Courts to give effect to
such arguments as that now under consideration is illustrated also in Snider’s
case. The
legislation in question there was
[Page 424]
framed for the purpose of dealing with
industrial disputes and authorized the Minister of Labour to take steps to
convene, in the case of such a dispute, a Board composed of a representative of
the workmen, a representative of the employer, and a third person to be
nominated by the Minister of Labour himself. The Act prohibited a strike or
lockout pending the consideration of a dispute by the Board. The importance of
the matters dealt with by the statute, the fact that the statute was making a
provision for meeting a condition which prevailed throughout the whole of
Canada and for dealing with industrial disputes which, in many and, indeed,
most cases, would affect people in more than one province, the fact that the
machinery provided had proved to be a valuable instrument in the interests of
industrial peace, were not disputed. Nevertheless, the Board negatived the
existence of
the general principle that the mere fact
that Dominion legislation is for the general advantage of Canada, or is such
that it will meet a mere want which is felt throughout the Dominion, renders it
competent if it cannot be brought within the heads enumerated specifically in section
91.
The judgment of the Board proceeds:—
No doubt there may be cases arising out of
some extraordinary peril to the national life of Canada, as a whole, such as
the cases arising out of a war, where legislation is required of an order that
passes beyond the heads of exclusive Provincial competency. Such cases may be
dealt with under the words at the commencement of s. 91, conferring general
powers in relation to peace, order and good government simply because such
cases are not otherwise provided for. But instances of this, as was pointed out
in the judgment in Fort Frances Pulp & Power Co. v. Manitoba Free
Press are
highly exceptional. Their Lordships think that the decision in Russell v.
The Queen can
only be supported to-day, not on the footing of having laid down an
interpretation, such as has sometimes been invoked in the general words at the
beginning of s. 91, but on the assumption of the Board, apparently made at the
time of deciding the case of Russell v. The Queen, that
the evil of intemperance at that time amounted in Canada to one so great and so
general that at least for the period it was a menace to the national life of
Canada so serious and pressing that the National Parliament was called on to
intervene to protect the nation from disaster. An epidemic of pestilence might
conceivably have been regarded an analogous. It is plain from the decision in
the Board of Commerce case that
the evil of profiteering could not have been so invoked, for Provincial Powers,
if exercised, were adequate to it. Their Lordships find it difficult to explain
the decision in Russell v. The Queen as more than a decision of this order upon
facts, considered to have been established at its date rather than upon general
law.
The principle enunciated in this last paragraph
had been applied in the Fort Frances case, the
authority of which
[Page 425]
seems to be recognized in the judgment in the Aeronautics
Reference.
On behalf of the Dominion it is argued that the
judgment in the Aeronautics case
constitutes a new point of departure. The effect of that judgment, it seems to
be argued, is that if, in the broadest sense of the words, the matters dealt
with are matters “of national concern” matters which “affect the body politic
of the Dominion,” jurisdiction
arises under the introductory clause. One sentence is quoted from the judgment
in the Aeronautics case which we will not reproduce because we
do not think their Lordships can have intended in that sentence to promulgate a
canon of construction for sections 91 and 92. We see nothing in the judgment in
the Aeronautics case to indicate that their Lordships
intended to detract from the judicial authority of the decisions in the Combines
case and Snider’s
case.
In the Aeronautics case, it is
true, their Lordships called attention to the circumstance that, by section
132, the Dominion possesses powers to legislate in relation to matters which,
in the domestic sense, would fall within section 92 when these matters have
become affected by an international obligation by which Canada is bound; and in
the subsequent case, reported in the same volume of the Appeal Cases, the Radio
Reference, it
was held that matters affected by an obligation arising under an international
arrangement, not falling within section 132, but constituted in virtue of
powers acquired in course of the recent constitutional developments, would fall
within the general authority of section 91 because such international
obligations were not comprehended within any of the specific subjects enumerated
within section 91 or section 92; and in the Aeronautics case,
as already observed, the authority of the decision in the Fort Frances case is expressly recognized. The judgments in
the Combines case, the Fort Frances case,
Snider’s case, obviously have no reference to
legislation dealing with matters of civil right
[Page 426]
from the international point of view. We are
bound, in our view, by the decisions in the Combines case and in Snider’s case as well as by the decision in the Fort
Frances case, and,
consistently with those decisions, we do not see how it is possible that the
argument now under discussion can receive effect.
To summarize: in effect, this statute attempts
and, indeed, professes, to regulate in the provinces of Canada, by the
instrumentality of a commission or commissions appointed under the authority of
the statute, trade in individual commodities and classes of commodities. The
powers of regulation vested in the commissions extend to external trade and
matters connected therewith and to trade in matters of interprovincial concern;
but also to trade which is entirely local and of purely local concern.
Regulation of individual trades, or trades in
individual commodities in this sweeping fashion, is not competent to the
Parliament of Canada and such a scheme of regulation is not practicable
in view of the distribution of legislative
powers enacted by the Constitution Act, without the co-operation of the
provincial legislatures
to quote from the judgment of the Judicial
Committee in the Board of Commerce case.
The legislation, for the reasons given, is not
valid as an exercise of the general authority of the Parliament of Canada under
the introductory words of section 91 to make laws “for the peace, order and
good government of Canada.”
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