The Queen v. Sommerville, [1974] SCR 387

Supreme Court of Canada

The Queen v. Sommerville, [1974] S.C.R. 387

Date: 1972-10-18

Her Majesty The Queen Appellant;

and

Raymond Silas Boyd Sommerville Respondent.

1972: May 26; 1972: October 18.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence and Pigeon JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Statute—Interpretation—Intention of the Act—Interprovincial transport of grain for own use—Canadian Wheat Board Act, R.S.C. 1952, c.44, s. 32 (now R.S.C. 1970, c. C-12, s. 33).

The respondent resided and carried on farming operations with his father in Saskatchewan. He transported 4,326 bushels of feed wheat grown on the farm to Alberta where, after processing, it was fed to cattle owned by him and his father. At no time did the respondent or his father possess a licence from the Canadian Wheat Board for the transportation of wheat from one province to another. The respondent was acquitted by a magistrate on a charge of unlawfully transporting wheat from the province of Saskatchewan to the province of Alberta, contrary to s.  32(b) of the Canadian Wheat Board Act, R.S.C. 1952, c. 44. The acquittal was affirmed by a district court judge and by the Court of Appeal. The crown was granted leave to appeal to this Court.

Held (Judson and Pigeon JJ. dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Abbott, Martland, Ritchie and Spence JJ.: The Canadian Wheat Board was incorporated with the object of marketing, in an orderly manner, in interprovincial and export trade, grain grown in Canada. The purpose of the Canadian Wheat Board Act was to prevent the respondent marketing his grain outside Saskatchewan, and s. 32(b) was designed to prevent the transport of grain out of Saskatchewan for that purpose. The Act was held by this Court to be valid as an exercise of Parliament’s legislative power in relation to the regulation of trade and commerce. To interpret s. 32(b) as applying to the circumstances of this case would be to apply it for an object outside the intention of the Act and would involve the conclusion that the Act

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applied to purposes other than the regulation of trade and commerce. The facts of this case involve no trade in grain by the respondent and no commercial transaction.

Per Judson and Pigeon JJ., dissenting: It is perfectly proper to look at the general purpose and intent of an Act in order to choose among several possible meanings that which appears more consonant with the general intent. When the meaning is clear as in the present case, all the authorities show that the literal meaning must be adhered to. Literally construed, s. 32 is not subject to an exception.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], affirming the acquittal of the respondent. Appeal dismissed, Judson and Pigeon JJ. dissenting.

H.B. Monk, Q.C., and E.I. MacDonald, Q.C., for the appellant.

S.E. Halyk, for the respondent.

The judgment of Fauteux C.J. and of Abbott, Martland, Ritchie and Spence JJ. was delivered by

MARTLAND J.—This is an appeal from the unanimous judgment of the Appellate Division of the Supreme Court of Alberta dismissing the appellant’s appeal from the judgment of Yanosik D.C.J. dismissing the appellant’s appeal from the acquittal of the respondent by the magistrate on a charge that he:

did unlawfully transport from the Province of Saskatchewan to the Province of Alberta 4326 bushels of wheat, in that he did transport the said wheat from Mantario in the Province of Saskatchewan to Medicine Hat in the Province of Alberta contrary to the provisions of the Canadian Wheat Board Act.

The charge was based upon subs. (b) of s. 32 of the Canadian Wheat Board Act, hereinafter referred to as “the Act”, R.S.C. 1952, c. 44 (now s. 33 of c. C-12, R.S.C. 1970). That section reads as follows:

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32. Except as permitted under the regulations, no person other than the Board shall

(a) export from or import into Canada wheat or wheat products owned by a person other than the Board;

(b) transport or cause to be transported from one province to another province, wheat or wheat products owned by a person other than the Board;

(c) sell or agree to sell wheat or wheat products situated in one province for delivery in another province or outside of Canada; or

(d) buy or agree to buy wheat or wheat products situated in one province for delivery in another province or for delivery outside of Canada.

There was an agreed statement of facts:

1. The accused Raymond Silas Boyd Sommerville resides and carries on farming operations with his father in the District of Mantario, in the Province of Saskatchewan.

2. Between the 4th day of March, 1969 and the 29th day of April, 1969 the accused transported from his farm in the Province of Saskatchewan to the Province of Alberta approximately 4,326 bushels of feed wheat grown on such farm and belonging to himself and to his father.

3. The said feed wheat was delivered to Coaldale Southern Feed Ltd., Coaldale, Alberta, and Canada Packers Feed Mill in Medicine Hat, Alberta, where the grain was rolled and concentrates added.

4. From the said feed mills the grain was hauled to and stored in storage bins provided to the accused and his father on the premises of Valley Feeders Ltd. at Lethbridge, Alberta and Coaldale, Alberta.

5. The accused pays the said feed mill for the processing of the grain plus the cost of any additives used and at no time was any of the wheat in question sold or traded to any person.

6. Following delivery of the processed grain to the storage bins previously mentioned the processed grain was then fed to cattle owned solely by the accused and his father by the employees of Valley Feeders Ltd.

7. Valley Feeders Ltd. charge the accused and his father for the care of the said feeder cattle a set rate per day per animal plus the cost of any supplements

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provided by them while the cattle belonging to the accused and his father are on its premises.

8. At no time relevant to this charge did the accused or his father possess a license from the Canadian Wheat Board for the transportation of wheat from one province to another pursuant to the regulations under the Canadian Wheat Board Act.

It was acknowledged in argument by counsel for the appellant, before Yanosik D.C.J., that, at the time of the alleged offence, there were no provisions in the regulations under the Act which would have enabled the respondent to obtain a licence or permit from the Board to transport his wheat from Saskatchewan to Alberta.

The question for determination is whether, on these facts, the respondent was in breach of the provisions of s. 32(b). Does s.  32(b) prohibit a grain producer, in Saskatchewan, from using his own grain to feed his own cattle in the Province of Alberta?

The appellant submits that the provisions should be literally construed and relies on the proposition stated by Lord Reid in Inland Revenue Commissioners v. Hinchy[2]:

But we can only take the intention of Parliament from the words which they have used in the Act, and therefore the question is whether these words are capable of a more limited construction. If not, then we must apply them as they stand, however unreasonable or unjust the consequences, and however strongly we may suspect that this was not the real intention of Parliament.

The respondent’s contention is summarized in the following passage from the reasons of Johnson J.A. in the Appellate Division:

What is said to be the paramount rule for the interpretation of statutes is “that every statute is to be expounded according to its manifest or expressed intention” (Canadian Wheat Board v. Manitoba Pool Elevators et al, 6 WWR (NS) at page 36). Generally, that intention can be gleaned from the words of the section but when that wording appears to be at odds

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with the scheme and purpose of the Act, the legislation must be looked at to see if the section was not intended to have a more restricted interpretation than the reading of the section alone would indicate.

The Act describes itself as “An Act to provide for the Constitution and Powers of the Canadian Wheat Board.” The object of the Board is stated in s. 4(4):

The Board is incorporated with the object of marketing in an orderly manner, in interprovincial and export trade, grain grown in Canada,…

The constitutional validity of the Act was challenged in the case of Murphy v. Canadian Pacific Railway Company. The decision of the Court of Appeal for Manitoba in that case is reported[3] and the decision of this Court is reported[4]. The Act was held to be valid because it was in relation to the regulation of trade and commerce under s. 91(2) of the British North America Act, 1867.

Locke J., who delivered the reasons of the majority of this Court, said, at p. 631:

Dealing with the first question, it appears to me to be too clear for argument that the Canadian Wheat Board Act in so far as its provisions relate to the export of grain from the province for the purpose of sale is an Act in relation to the regulation of trade and commerce within the meaning of that expression in s. 91.

Rand J. described the scheme of the Act, at p. 634, as follows:

Speaking generally, the scheme of the Act is that primarily all grain entering interprovincial and foreign trade is to be purchased and marketed by the Board, and none purchased directly from the farmers on the prairies can be shipped to another province without the production of a license from the Board.

Reference was made to s. 32(b) by Adamson C.J.M., who delivered the reasons of the Court of Appeal, at p. 62:

The plaintiff submits that the whole Act is ultra vires. It appears to me that the only provision of the

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Act in question in this action is sec. 32(b), supra. Sec. 32(b) is sweeping in its terms. I think, however, that it should be interpreted and applied in accordance with and subject to the purpose and intention of the Act, namely, the orderly marketing of grain as stated in sec. 4(4) of the Act, supra. If there is no marketing or commerce in grain the provision should not apply.

In argument before this Court in that case counsel for the appellant raised the question of the position, under s. 32 of the Act, of a grain producer desiring to ship his own grain to another province for his own use there. Locke J., at p. 633, pointed out that this issue was not raised by the pleadings or by the facts in evidence. It was not contended that the appellant was the producer of the grain which he sought to ship by the railway.

He went on to say, at p. 633:

If, however, contrary to my view, the question as to the validity of the prohibition of such a movement of a grower’s own grain should be considered as having been raised and if it be assumed for the purpose of argument that such prohibition is invalid as being for any reason beyond the powers of Parliament, such prohibition would be clearly severable.

In my opinion it is proper, in determining the application of s. 32 (b) to the facts of this case, to consider the intention of the Act and also the basis upon which this Court held that its enactment was intra vires of the Parliament of Canada. It is an Act to provide for the constitution and powers of the Canadian Wheat Board. That Board was incorporated with the object of marketing, in an orderly manner, in interprovincial and export trade, grain grown in Canada. The Act does not purport to give to the Board complete control of all grain grown in those provinces within the designated area to which the Act applies. It did not prevent the appellant from selling his grain in Saskatchewan or prevent him from feeding it to his cattle in Saskatchewan. It did not prevent him from pur-

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chasing in Alberta from a person, other than the Board, grain for the use of his cattle in Alberta. The purpose of the Act was to prevent his marketing his grain outside Saskatchewan, and s. 32(b) was designed to prevent the transport of grain out of Saskatchewan for that purpose.

The Act was held by this Court to be valid as an exercise of the Canadian Parliament’s legislative power in relation to the regulation of trade and commerce. Control of the export sale of grain by the Board in relation to interprovincial or international trade was found to be a proper exercise of that power.

To interpret s. 32 (b) as applying to the circumstances of this case would be to apply it for an object outside the intention of the Act and would involve the conclusion that the Act applied to purposes other than the regulation of trade and commerce. The facts of the case involve no trading in grain by the respondent and no commercial transaction. The respondent dealt with his own grain for his own purposes and did not deal with anyone else.

In McKay v. The Queen[5], Cartwright J., as he then was, who delivered the reasons of the majority of this Court, said, at p. 803:

The second applicable rule of construction is that if an enactment, whether of Parliament or of a legislature or of a subordinate body to which legislative power is delegated, is capable of receiving a meaning according to which its operation is restricted to matters within the power of the enacting body it shall be interpreted accordingly.

In interpreting s. 32(b) (now s. 33(b)) of the Act, I share the view expressed by Adamson C.J.M. in the Murphy case:

If there is no marketing or commerce in grain the provision should not apply.

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and by Johnson J.A. in the present case:

This interpretation does no violence to the language of section  32(b) but merely restricts its operation to the movement of grain from one province to another that is made either in contemplation of or following upon a purchase or sale of that grain.

For these reasons, as well as for those stated by Johnson J.A., with which I agree, I would dismiss this appeal. In accordance with the provisions of the order which granted leave to appeal to this Court, the respondent is entitled to the costs of the appeal as well as the costs of the motion for leave.

The judgment of Judson and Pigeon JJ. was delivered by

PIGEON J. (dissenting)—The facts of this case are not in dispute and they are stated in the reasons of my brother Martland with the relevant enactment, s. 32 of the Canadian Wheat Board Act. The only question is whether that section should be read as subject to an implied exception. The wheat that was transported from one province to another was undoubtedly owned by a person other than the Canadian Wheat Board. Does the fact that this was done for his own use by the man who grew it make any difference? In the Appellate Division of the Supreme Court of Alberta, Johnson J. wrote:

What is said to be the paramount rule for the interpretation of statutes is “that every statute is to be expounded according to its manifest or expressed intention” (Canadian Wheat Board v. Manitoba Pool Elevators et al, 6 WWR (NS) at page 36). Generally, that intention can be gleaned from the words of the section but when that wording appears to be at odds with the scheme and purpose of the Act, the legislation must be looked at to see if the section was not intended to have a more restricted interpretation than the reading of the section alone would indicate.

With respect, this reasoning is contrary to the fundamental rule of construction that the intention is to be sought in the words used. It is for

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Parliament, not for the courts, to decide what is the proper extent of the restrictions necessary or desirable to implement the scheme and purpose of an act. It is for Parliament, not for the courts, to decide whether any given wording is in accordance with such scheme and purpose. I have been unable to find any authority supporting the proposition that one can depart from the clear meaning of an enactment if this appears to be at odds with its scheme and purpose. Of course, it is otherwise if the enactment is not clear. Then, it is perfectly proper to look at the general purpose and intent in order to choose among several possible meanings that which appears more consonant with the general intent. But when the meaning is clear as in the present case, all the authorities show that the literal meaning must be adhered to. In my view, Lord Reid correctly stated the rule when he said in Inland Revenue Commissioners v. Hinchy[6]:

But we can only take the intention of Parliament from the words which they have used in the Act, and therefore the question is whether these words are capable of a more limited construction. If not, then we must apply them as they stand, however unreasonable or unjust the consequences, and however strongly we may suspect that this was not the real intention of Parliament.

Before him, Lord Atkinson had said in City of Victoria v. Bishop of Vancouver Island[7]:

In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense. In Grey v. Pearson (1857, 6 H.L.C. 61, 106) Lord Wensleydale said: “I have been long and deeply impressed with the wisdom of the rule, now I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills, and indeed statutes, and all written instruments, the grammatical and ordinary

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sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.” Lord Blackburn quoted this passage with approval in Caledonian Ry. Co. v. North British Ry. Co. (1881, 6 App. Cas. 114, 131), as did also Jessel M.R. in Ex parte Walton (1881, 17 Ch.D. 746,751).

There is another principle in the construction of statutes specially applicable to this section. It is thus stated by Lord Esher in Reg. v. Judge of the City of London Court (1892, 1 Q.B. 273,290): “If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity. In my opinion, the rule has always been this:—if the words of an Act admit of two interpretations, then they are not clear; and if one interpretation leads to an absurdity, and the other does not, the Court will conclude that the legislature did not intend to lead to an absurdity, and will adopt the other interpretation.” and Lord Halsbury in Cooke v. Charles A. Vogeler Co. (1901, A.C. 102, 107) said: “But a court of law has nothing to do with the reasonableness or unreasonableness of a provision, except so far as it may help them in interpreting what the legislature has said.” Which necessarily means that for this latter purpose it is legitimate to take into consideration the reasonableness or unreasonableness of any provision of a statute.

Concerning the decision of this Court in Murphy v. Canadian Pacific Railway[8], the following observations should be made. In the very first paragraph of the reasons he wrote for the majority, Locke J. stated, at pp. 627-628:

It was said in the judgment of the Judicial Committee in Citizens’ Insurance Company v. Parsons (1881, 7 App. Cas. 96 at 109, 51 L.J.P.C. 11), and it has been said many times since that in performing the difficult duty of deciding questions arising as to the construction of ss. 91 and 92 of the British North America Act it is a wise course to decide each case which arises without entering more largely upon the interpretation of the statute than is necessary for the decision of the particular question in hand.

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In that case, as mentioned in the headnote, “The grain had been grown in Manitoba, but there was no suggestion that it was done by the plaintiff or the company of which he was the president and majority shareholder.” The Court, therefore, was not called upon to consider the situation arising in the present case. It is in that context that the following sentence of the reasons of Locke J., at p. 631, must be read:

Dealing with the first question, it appears to me to be too clear for argument that the Canadian Wheat Board Act in so far as its provisions relate to the export of grain from the province for the purpose of sale is an Act in relation to the regulation of trade and commerce within the meaning of that expression in s. 91.

In any case, the fact that the constitutional validity of the law was supported on a particular basis cannot be taken to mean that this was the only possible basis, especially when care was taken to say at the outset that there was no intention to enter into more consideration than was necessary to decide the case at hand. Holding the Act valid as being legislation in relation to the regulation of trade and commerce, did not imply that with respect to provisions concerning commodities not actually in the stream of commerce it could not be supported otherwise, such as on the basis that provincial jurisdiction over property and civil rights is restricted by the words “within the province” or, possibly, that the use by the farmer of his own grain for his own purposes comes within “agriculture”.

In the instant case, the constitutional validity of the Act is not challenged and I cannot subscribe to the principle that its scope is to be restricted to the basis of jurisdiction that was relied on in this Court to support its validity in respect of a particular attack. While it is undoubtedly true that the general intention of the Act is to deal with interprovincial or international grain trade, this does not mean that every

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provision must be read as restricted to operations coming within that description. If Parliament had so intended, a general provision to that effect would have been inserted. This was not done and therefore, it cannot be presumed to have been intended.

In my view, the Canadian Wheat Board Act should be read in the same way as the Combines Investigation Act, another act in respect of trade, was read in Canadian Warehousing Association v. The Queen[9]. This Court was unanimous in holding that household goods were articles within the statutory definition although they were not “commodities in the stream of commerce” because if Parliament had intended that such commodities only would be covered, it would have so stated.

In the enactment under consideration in the instant case, there is no ambiguity, no exception, no restriction, and therefore, there is no valid reason for departing from the literal meaning.

I would allow the appeal, set aside the judgments of the Appellate Division of the Supreme Court of Alberta, the District Court of the District of Southern Alberta-Judicial District of Medicine Hat, and the decision of the Magistrate E.W.N. Macdonald, acquitting the respondent, convict him of the offence charged and remit the matter to the Magistrate for sentence.

Appeal dismissed, JUDSON and PIGEON JJ. dissenting.

Solicitor for the appellant: Henry B. Monk, Winnipeg.

Solicitors for the respondent: Halyk & Burlingham, Saskatoon.