R. v. Hemlock Park Co-operative Ltd., [1974] SCR 123

Supreme Court of Canada

R. v. Hemlock Park Co-operative Ltd., [1974] S.C.R. 123

Date: 1972-02-08

Her Majesty The Queen (Plaintiff) Appellant;

and

Hemlock Park Co-operative Limited (Defendant) Respondent.

1971: December 14, 15; 1972: February 8.

Present: Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE EXCHEQUER COURT OF CANADA

Combines—Motion for an order of prohibition—Exchequer Court, criminal jurisdiction—Interpretation of “information”—Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 30(2), 44(4), 46(1)(4)—Criminal Code, 1953-54 (Can.), c. 51, ss. 2(1), 429, 439, 488, 562.

The Attorney General of Canada filed in the Exchequer Court of Canada an information for an order pursuant to s. 30(2) of the Combines Investigation Act to prohibit the respondent from supplying or offering to supply eggs to any retailer on the condition that such retailer agrees to resell such eggs at a mark-up, margin or price designated by the respondent.

The motion for judgment was dismissed on the ground that proceedings under s. 30(2) of the Combines Investigation Act are criminal proceedings, commenced by “information” meaning “indictment” under s. 2(1) of the Criminal Code, for which the only rules that can be resorted to are those contained in the Criminal Code because no special rules for these proceedings have been adopted by the Exchequer Court of Canada. Hence the appeal to this Court.

Held: The appeal should be allowed.

These are no doubt criminal proceedings. But the provisions of the Combines Investigation Act derogate from the usual rules of the criminal law. In the context of ss. 44(4) and 46(1)(4) of the Act, the definition of “indictment” contained in s. 2(1) of the Criminal Code becomes inapplicable since “information” cannot mean “indictment” in the context of provisions contrasting “information” with “prosecution” because an indictment is a form of prosecution. Furthermore, these provisions are an exception to the rule in s. 488(2) of the Criminal Code when providing that proceedings may be commenced by “informa-

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tion” in the Exchequer Court for an order of prohibition. Also the word “information” cannot be taken as having the meaning that it has in ss. 429 and 439 of the Criminal Code where an “information” is a step in a criminal prosecution.

The absence of rules for criminal proceedings cannot paralyze the exercise of the criminal jurisdiction conferred upon the Exchequer Court unless some legal provisions are dependent for their legal effectiveness upon the making of rules. In the absence of any applicable rules, the matter is to be governed by rule 2 of the Exchequer Court which provides that the latter shall determine the practice and procedure which are most appropriate in the circumstances.

The use in a criminal proceeding of a form prescribed for civil proceedings cannot be considered as making it invalid under s. 3 of the Combines Investigation Act, and the procedure followed complies with all essential requirements, the defendant did not object, and admissions were made on its behalf as authorized by s. 562 of the Criminal Code.

The Court had jurisdiction to make the order requested and, therefore, it could not properly refuse to make it.

APPEAL from a judgment of the Exchequer Court dismissing a motion for an order of prohibition. Appeal allowed.

D.Q. Patterson, for the appellant.

B.A. Crane, amicus curiae.

The judgment of the Court was delievered by

PIGEON J.—This appeal is from a judgment of the Exchequer Court dismissing a motion for an order pursuant to s. 31.2 (now 30.2) of the Combines Investigation Act (“the Act”) (now R.S. Ch. C-23) which is as follows:

31. (2) Where it appears, to a superior court of criminal jurisdiction in proceedings commenced by information of the Attorney General of Canada or the attorney general of the province for the purposes of this section that a person has done, is about to do or

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is likely to do any act or thing constituting or directed toward the commission of an offence under Part V, the court may prohibit the commission of the offence or the doing or continuation of any act or thing by that person or any other person constituting or directed toward the commission of such an offence, and, where the offence is with respect to a merger or monopoly, direct that person or any other person to do such acts or things as may be necessary to dissolve the merger or monopoly in such manner as the court directs.

The proceedings were instituted by an information filed in the Exchequer Court by the Attorney General of Canada on September 25, 1969, and signed by the Attorney General himself. This information was drawn up in accordance with Form 1 of the Appendix to the Rules of the Exchequer Court then in force. The single allegation of facts was:

That the Defendant, Hemlock Park Co-operative Farm Limited, being a dealer within the meaning of section 34 of the Combines Investigation Act, Revised Statutes of Canada 1952, Chapter 314, and amendments thereto, has done acts or things constituting or directed towards the commission of an offence under section 34 (2) of the said Combines Investigation Act, to wit, did, between the first day of March 1966 and the eleventh day of March 1966, directly or indirectly, by agreement, threat, promise or other means, require or induce, or attempt to require or induce, Ken & Ray’s Collins Bay Supermarket Limited, to resell eggs at a mark-up specified by the said Defendant.

The claim for relief was:

The Attorney General, on behalf of Her Majesty the Queen, claims:

A. The following Order pursuant to the provisions of section 31 (2) of the Combines Investigation Act:

THIS COURT DOTH SPECIFICALLY PROHIBIT

Hemlock Park Co-operative Farm Limited and each and every one of its officers, directors, servants and agents, from supplying or offering to supply eggs to any retailer, on the condition that such retailer agrees to resell such eggs at an identifiable mark-up, margin or price designated by the said Hemlock Park Co‑operative Farm

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Limited, or by any of its officers, directors, servants or agents, whether any other condition or stipulation or conditions or stipulations, are attached to, or are subject to, such supply or offer of supply, or not.

B. Such further and other relief as this Honourable Court may deem just.

A copy of this information was served upon the defendant on October 23, 1969, and the endorsement on this copy was in accordance with Form 14 of the Appendix to the Exchequer Court Rules as follows:

NOTICE TO THE DEFENDANT WITHIN NAMED

You are required to file with the Registrar of the Exchequer Court of Canada, at his office in the City of Ottawa, your plea, answer, exception or otherwise make your defence to the within Information, within four weeks from the service hereof. If you fail to file your plea, answer, exception or otherwise make your defence within the time above limited, you are to be subject to have such judgment, decree, or order made against you as the Court may think just upon the informant’s own showing and if this Notice is served upon you personally, you will not be entitled to any further notice of the further proceedings in the cause.

NOTE: This Information is filed by John N. Turner, one of Her Majesty’s Counsel, and Her Majesty’s Attorney General of Canada, on behalf of Her Majesty the Queen.

The defendant filed no plea or other answer to the information. A certificate of such default was issued on February 13, 1970, on the written request of a solicitor for the Attorney General and, on February 16, this solicitor gave to the Registrar of the Exchequer Court a notice of motion for judgment returnable March 12. On that date, there was filed in support of the application a Notice of Admissions signed by a solicitor for the defendant and, oddly enough, dated June 16, 1969, together with a Consent of the same date to the issue of an order as prayed for.

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The reasons given by Gibson J. for dismissing this application are in these terms:

Proceedings under section 31 (2) of the Combines Investigation Act are criminal proceedings commenced by “Information”.

No special rules for criminal proceedings have been adopted by The Exchequer Court of Canada. Therefore, the only rules that can be resorted to are those contained in the Criminal Code of Canada.

“Information” for the purpose of proceedings under section 31 (2) of the Combines Investigation Act means “indictment” under the Criminal Code of Canada. (See section 2 (20) of the Criminal Code.) It is not an “Information” of the type that is sworn before a Justice of the Peace or a Magistrate.

“Information” within the meaning of the Exchequer Court Rules (see Rule 3) as they presently exist, is in the nature of a pleading and is confined to civil proceedings. “Petition of Right” is the equivalent document when a citizen commences civil proceedings against the Crown.

It is to be noted that the objection by reason of which the application was dismissed was not raised by the defendant, but by the learned trial judge himself. On the appeal to this Court, the defendant was not represented and the Registrar was informed by its attorney that it did not intend to take any part in the appeal. However, so that the Court would not have to decide the case without the benefit of argument on both sides, the Department of Justice kindly arranged to have argument submitted in writing and verbally by Mr. B.A. Crane, whose assistance proved very valuable.

In considering whether the decision of the Exchequer Court is well founded, reference should first be made to the following provisions of the Combines Investigation Act which were all enacted in 1960 (8-9 Eliz. II, ch. 45, ss. 17 and 19).

40. (4) (now 44.4). In any case where subsection (2) of section 31 (now 30.2) is applicable the Attorney General of Canada or the attorney general of the province may in his discretion institute proceedings

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either by way of an information under that subsection or by way of prosecution.

41A. (now 46). (1) Subject to this section, the Attorney General of Canada may institute and conduct any prosecution or other proceedings under section 31 (now 30) or Part V, except section 33c (now 36), in the Exchequer Court of Canada, and for the purposes of such prosecution or other proceedings the Exchequer Court has all the powers and jurisdiction of a superior court of criminal jurisdiction under the Criminal Code and under this Act. …

(4) Proceedings under subsection (2) of section 31 (now 30.2) may in the discretion of the Attorney General be instituted in either the Exchequer Court or a superior court of criminal jurisdiction in the province, but no prosecution shall be instituted in the Exchequer Court in respect of an offence under Part V without the consent of all the accused.

It appears to me that in the above-quoted provisions a definite indication respecting the meaning of the word “information” is given by this word being used in opposition to “prosecution”. This shows that, in the context of the Combines Investigation Act. s. 2.1 of the Criminal Code, the definition of “indictment”, becomes inapplicable. “Information” cannot mean “indictment” in the context of provisions contrasting “information” with “prosecution” because an indictment is a form of prosecution. Even in the Criminal Code itself, there is a provision in which the word “information” is clearly used otherwise than as meaning an indictment. This is s. 488 (now 506) which is as follows:

488. (1) Except as provided in this Part no bill of indictment shall be preferred.

(2) No criminal information shall be laid or granted.

(3) No person shall be tried upon a coroner’s inquisition.

It is clear that in this provision “information” is used only in what may be called the “historical sense” of a charge laid by the Attorney General, or some other authorized person, directly before a superior court of criminal jurisdiction instead of being preferred to a grand

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jury or presented by a grand jury. Here is what Hawkins J. said in The Queen v. Slator[1]:

A well-defined distinction exists and has long existed between an indictment and an information. An indictment is “an accusation found by an inquest of twelve or more upon their oath” (Burn’s Justice, 30th ed. vol. 3, p. 2), whilst an information is a proceeding by the Attorney General of his own motion without the intervention of a grand jury.

There can be no doubt that we are here dealing with criminal proceedings: Goodyear Tire & Rubber Co. of Canada v. The Queen[2]. However, it is equally clear that in the Combines Investigation Act, Parliament has inserted provisions derogating from the usual rules of the criminal law. When s. 31.2 (now 30.2) of the Act is read with the other provisions above‑quoted, it becomes apparent that an exception has been made to the rule in s. 488.2 (now 506.2) of the Criminal Code that “No criminal information shall be laid or granted”. Explicit provision has been made for the laying of such informations, not for the purpose of obtaining a conviction, but for the purpose of obtaining an order of prohibition. Such must be the clear effect of a provision that proceedings may be commenced by information in the Exchequer Court for orders of prohibition, but that “no prosecution” shall be instituted in that court in respect of an offence under Part V of the Act without the consent of the accused.

I agree with Gibson J. that, in this context, the word “information” cannot be taken as having the meaning that it has in ss. 429 and 439 (now 443 and 453) of the Criminal Code dealing with informations for warrants. Such informations are steps in criminal prosecutions. In the French version of the Criminal Code, the word used is “dénonciation”. In the Act, the word used for

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“information” in the French version is “plainte”, a word that is often taken in the same meaning as “dénonciation”. However, the fact that it is used in contradistinction with “poursuite” (prosecution) shows that it is not intended to have that meaning.

It is quite true that the information contemplated in the Combines Investigation Act, being a criminal information, is not the “information” contemplated in the Exchequer Court rules and forms which, as they existed at the material time, dealt with civil proceedings exclusively. However, the absence of rules for criminal proceedings could not paralyse the exercise of the criminal jurisdiction conferred upon the Court unless some legal provisions were dependent for their legal effectiveness upon the making of rules, which is not the case here.

In the absence of any applicable rules, the matter, it seems to me, was to be governed by rule 2 which is as follows:

In any proceedings in the Court where any matter arises not otherwise provided for by any provision in any Act of the Parliament of Canada (except section 34 of the Exchequer Court Act) or by any general rule or order of the Court (except this rule), the practice and procedure shall be determined by the Court (either on a preliminary motion for directions, or after the event if no such motion has been made) for the particular matter by analogy

(a) to the other General Rules and Orders of the Court, or

(b) to the practice and procedure in force for similar proceedings in the Courts of that province to which the subject matter of the proceedings most particularly relates,

whichever is, in the opinion of the Court, most appropriate in the circumstances.

In the present case, it might have been proper to apply to the Court for directions under the above rule, but the rule itself clearly does not make this imperative. I fail to see on what basis explicit procedural directions could be considered a prerequisite to the institution of proceed-

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ings, especially when it appears that no objection has been raised and also that proceedings instituted in the same way have been previously received and acted upon in a number of cases.

It should be noted that s. 3 of the Act provides:

3. No proceedings under this Act shall be deemed invalid by reason of any defect of form or any technical irregularity.

In view of this provision, the use in criminal proceedings of a form prescribed for civil proceedings cannot be considered as making them invalid unless it appears that a defect in substance or some substantial prejudice was occasioned.

In the instant case, the procedure followed complies with the essential requirements of informing the defendant of the charge made against it and of the remedy claimed. Not only did the defendant not object, but admissions were made on its behalf and a consent given to the making of the order prayed for. The admissions were authorized by s. 562 (now 582) of the Criminal Code. The Court clearly had jurisdiction to make the order requested and, therefore, it could not properly refuse to make it. If the judge was not satisfied with the manner in which the proceedings had been made, he could under rule 2 have required such corrective action as he deemed necessary, but there is nothing to indicate that there was any such necessity.

On the whole, I conclude that the judgment appealed from should be reversed and that an order of prohibition should be directed to be issued as prayed for.

Appeal allowed.

Solicitor for the plaintiff, appellant: D.S. Maxwell, Ottawa.