Jorgenson v. Attorney General of Canada, [1971] SCR 725

Supreme Court of Canada

Jorgenson v. Attorney General of Canada, [1971] S.C.R. 725

Date: 1971-03-08

Ejler Victor Jorgenson Appellant;

and

The Attorney General of Canada Respondent;

and

The Attorney General of Alberta Intervenant.

1971: January 28; 1971: March 8.

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

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Constitutional law—Legislative jurisdiction—Works for the general advantage of Canada—Parliamentary declaration relating to grain elevators “heretofore or hereafter” constructed—Whether valid declaration—British North America Act, 1867, s. 92(10)(c)—Canada Grain Act, R.S.C. 1952, c. 25, ss. 2(11), 174—Canadian Wheat Board Act, R.S.C. 1952, c. 44, ss. 2(1)(d), 2(2), 45.

A charge against an elevator agent under ss. 16(1) (e) and 42 of the Canadian Wheat Board Act for accepting delivery of wheat from a producer in excess of the latter’s quota under his permit was heard on agreed facts, and the only point urged in defence was that the elevator to which the excessive delivery was made had not been brought within federal jurisdiction by a valid declaration under s. 92(10) (c) of the British North America Act. The magistrate agreed with this contention and acquitted the accused, but his judgment was unanimously reversed by the Manitoba Court of Appeal. With leave, an appeal from the judgment of the Court of Appeal was brought to this Court and the question of law at issue was formulated as follows: “Is Section 174 of the Canada Grain Act (and that part of Section 45 of the Canadian Wheat Board Act that contains a general declaration) a valid and proper declaration of the Parliament of Canada pursuant to Section 92 (10) (c) of the British North America Act?”

Held: The appeal should be dismissed.

The substantial point of dispute, arising under the words “before or after their execution” in s. 92(10) (c), was as to the required specificity of a parlia-

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mentary declaration in its bearing (if, indeed, it could embrace them at all) upon elevators not actually in existence at the time the declaration was made. Section 2(11) of the Canada Grain Act gave sufficient precision to s. 174 of that Act and, through this latter section, to s. 45 of the Canadian Wheat Board Act to make them effective vehicles for preempting jurisdiction over certain elevators before their execution, but exercisable only after they had come into existence.

Luscar Collieries Ltd. v. McDonald, [1925] S.C.R. 460, affirmed [1927] A.C. 925, considered; The King v. Eastern Terminal Elevator Co., [1925] S.C.R. 434, referred to.

APPEAL from a judgment of the Court of Appeal for Manitoba[1], reversing an acquittal by a magistrate on a charge under ss. 16(1) (e) and 42 of the Canadian Wheat Board Act, R.S.C. 1952, c. 44. Appeal dismissed.

G.J. Kroft and J.C. Prober, for the appellant.

J.A. Scollin, Q.C., and A.A. Sarchuk, for the respondent.

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

The judgment of the Court was delivered by

LASKIN J.—This appeal, limited to a single question of law on which leave was given by this Court, arises out of a charge against an elevator agent under ss. 16(1) (e) and 42 of the Canadian Wheat Board Act, R.S.C. 1952, c. 44, for accepting delivery of wheat from a producer in excess of the latter’s quota under his permit.

The charge was heard on agreed facts, and the only point urged in defence was that the elevator to which the excessive delivery was made had not been brought within federal jurisdiction by a valid declaration under s. 92(10) (c) of the British North America Act. Magistrate Enns agreed with this contention and acquitted the accused, but his

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judgment was unanimously reversed by the Manitoba Court of Appeal. The issue of law which engaged the Courts below was formulated for the purposes of this appeal as follows:

Is Section 174 of the Canada Grain Act (and that part of Section 45 of the Canadian Wheat Board Act that contains a general declaration) a valid and proper declaration of the Parliament of Canada pursuant to Section 92(10) (c) of the British North America Act?

It is unnecessary to make any wide canvass of either the Canada Grain Act, R.S.C. 1952, c. 25, or the Canadian Wheat Board Act, R.S.C. 1952, c. 44, in order to answer the foregoing question. The following provisions of these enactments are alone relevant:

Canada Grain Act

2. (11) “elevator” means any premises in which western grain may be received, or out of which it may be discharged, directly from or into railway cars or vessels, and, notwithstanding anything contained in any other general or special Act, includes any such premises owned or operated by Her Majesty either directly or through any individual, public body or company;

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

Canadian Wheat Board Act

2. (1)(d) “elevator” means a grain elevator warehouse or mill that has been declared by the Parliament of Canada to be a work for the general advantage of Canada;

2. (2) Unless it is otherwise provided in this Act, words and expressions used in this Act have the same meaning as in the Canada Grain Act, except that where in any definition of any such word or expression contained in the said act the word “elevator” is used, it has the meaning given to it under subsection (1).

45. For greater certainty, but not so as to restrict the generality of any declaration in the Canada Grain Act that any elevator is a work for the gen-

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eral advantage of Canada, it is hereby declared that all flour mills, feed mills, feed warehouses and seed cleaning mills, whether heretofore constructed or hereafter to be constructed, are and each of them is hereby declared to be works or a work for the general advantage of Canada, and, without limiting the generality of the foregoing, each and every mill or warehouse mentioned or described in the Schedule is a work for the general advantage of Canada.

Parliament’s authority to augment by legislative declaration the constitutional jurisdiction it otherwise possesses is found in s. 92(10) (c) of the British North America Act. Sections 92(10) and 91(29) which give context to this provision are as follows:

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

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

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

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

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

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and 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; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (nothwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters com-

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ing within the Classes of Subjects next herein-after enumerated; that is to say,—

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

It is conceded that Parliament is not limited either as to time or as to occasion in resorting to s. 92(10)(c). It must, of course, proceed thereunder by statute, and its declaration in that form must operate upon a “work” or “works”. In the present case, it was not contended that elevators could not be “works”, nor that the term “works” was subject to the ejusdem generis rule of construction relative to the other provisions of s. 92(10).

The substantial point of dispute is then as to the required specificity of a parliamentary declaration in its bearing (if, indeed, it could embrace them at all) upon elevators not actually in existence at the time the declaration is made. The point arises under the words “before or after their execution”, in s. 92(10)(c). In my opinion, an individual specification by name or otherwise is not necessary for a valid declaration relating to existing elevators. They may be compendiously brought within federal legislative jurisdiction in respect of their operation by a “class” reference (according to a definition, if that be thought desirable, so long as the Court is satisfied that it refers to “works”) which takes in those theretofore constructed. In this aspect of the matter, there is no constitutional infirmity in either s. 174 of the Canada Grain Act or in s. 45 of the Canadian Wheat Board Act.

We are left then to consider whether such phrases as “hereafter constructed” or “hereafter to be constructed”, as found in the above-mentioned sections and as found also in s. 18 of the Atomic Energy Control Act, R.S.C. 1952, c. 11, are authorized by s. 92(10) (c) in respect of “works” which Parliament wishes to bring within its legislative jurisdiction by making a declaration in respect thereof “before their execution”.

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The legislative and judicial history of this question begins in 1925 when the Parliament of Canada acted upon a suggestion by Duff J., as he then was, in The King v. Eastern Terminal Elevator Co.[2], at p. 447, that “[the] one way in which the Dominion may acquire authority to regulate a local work such as an elevator … is by a declaration properly framed under section 92(10) of the B.N.A. Act.” Under s. 234 of the Canada Grain Act, 1925 (Can.), c. 33 (which became s. 233 of R.S.C. 1927, c. 86), “all grain elevators and warehouses… mentioned in this Act… whether heretofore constructed or hereafter to be constructed” were declared to be works for the general advantage of Canada; and, in addition, “for greater certainty but not so as to restrict the generality of the foregoing terms” grain elevators specified in a schedule to the Act were each declared to be a work under s. 92(10) (c). This provision survived in federal legislation (see s. 171 of the Canada Grain Act, 1930 (Can.), c. 5) until 1950 when it was repealed by 1950 (Can.), c. 24, s. 13. In its place, s. 10 of this last-mentioned Act enacted s. 173 of the Canada Grain Act, 1930, which passed into the Canada Grain Act, R.S.C. 1952, c. 25, as s. 174. It has already been quoted, and I need only emphasize that there is no supporting enumeration or schedule of existing elevators.

Section 234 as enacted in 1925 covered by its general reference to elevators different kinds which were variously defined in the Canada Grain Act under the classifications of “country elevators”, “public elevators”, “eastern elevators”, “terminal elevators”, “private elevators” and “mill elevators”. These classifications disappeared in 1930 under the Canada Grain Act of that year which, by s. 2(1), defined “elevator” in the terms which now appear as s. 2(11) of the present Act. I mention this to allay any concern that merely to use the word “elevator” in a s. 92(10)

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(c) declaration without giving it identifying limits might raise a reviewable issue on the question of “works”.

In the same year in which The King v. Eastern Terminal Elevator Co. was decided and in which the declaratory power was first invoked with respect to elevators, this Court gave judgment in Luscar Collieries Ltd. v. McDonald[3]. The question before the Court, arising upon an appeal by leave from a decision of the Board of Railway Commissioners for Canada, was whether the Board had jurisdiction to entertain an application for the grant of running rights over the appellant colliery company’s branch railway which was wholly in Alberta but connected with another branch line in the province which in turn connected with what is now the Canadian National Railway system. Jurisdiction existed if, pursuant to s. 5 of the Railway Act, 1919 (Can.), c. 68, the appellant’s branch line was a railway within Parliament’s legislative authority.

Three of the six judges who sat in the case, Anglin C.J.C., Duff and Rinfret JJ., held that the branch railway was subject to federal authority under s. 92(10) (a) of the British North America Act. The other members of the Court did not pass on this question. An alternative asserted ground of jurisdiction of the Board over the appellant’s branch railway was under the exercise of the declaratory power found in s. 6(c) of the Railway Act in these words:

every railway or portion thereof, whether constructed under the authority of the Parliament of Canada or not, now or hereafter owned, controlled, leased or operated by a company wholly or partly within the legislative authority of the Parliament of Canada or by a company operating a railway wholly or partly within the legislative authority of the Parliament of

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Canada, whether such ownership, control, or first mentioned operation is acquired or exercised by purchase, lease, agreement or other means whatsoever, and whether acquired or exercised under authority of the Parliament of Canada, or of the legislature of any province, or otherwise howsoever; and every railway or portion thereof, now or hereafter so owned, controlled, leased or operated shall be deemed and is hereby declared to be a work for the general advantage of Canada.

Both Mignault and Newcombe JJ. held this to be a valid declaration under s. 92(10)(c) and sufficient to embrace the appellant’s branch line. A contrary view on validity was taken by Duff J., with whom Anglin C.J.C. and Rinfret J. concurred; and Idington J. took an even wider view of the limitations upon Parliament when seeking to invoke s. 92(10)(c).

The opposing views on the required specificity are sufficiently exposed by the following quotations from the judgments of Duff J. and Mignault J. respectively:

The grounds on which it can be argued that s. 6 (c) of the Railway Act does not constitute a valid declaration within s. 92(10c) of the British North America Act, can be very concisely stated. The object of this provision, it is said, was not to enable the Dominion to take away jurisdiction from the provinces in respect of a given class of potential works; works, that is to say, which are not in existence, which may never come into existence, and the execution of which is not in contemplation; the purpose of the provision is rather to enable the Dominion to assume control over specific existing works, or works the execution of which is in contemplation. The control intended to be vested in the Dominion is the control over the execution of the work, and over the executed work. If a declaration in respect of all works comprised within a generic description be competent, the necessary consequence would appear to be that, with regard to the class of works designated by the description, provincial jurisdiction would be excluded, although Dominion jurisdiction might never be exercised, and although no work answering the description should ever come into existence.

In support of this view it may be said that the purport of the declaration authorized appears to be

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that the work which is the subject of it either is an existing work, beneficial to the country as a whole, or is such a work as ought to be executed, or, at all events, is to be executed, in the interests of the country as a whole. An affirmation in general terms, for example, an affirmation that all railways owned or operated hereafter by a Dominion company are works which ought to be or will be executed, as beneficial to the country as a whole, would be almost, if not quite, meaningless, and could hardly have been contemplated as the basis of jurisdiction, (per Duff J. at p. 476.)

Expressing now the opinion which I have formed after full consideration, it seems obvious that if Parliament can declare for the general advantage of Canada a specified work, it can also, in one declaration, comprise several works having the same distinguishing characteristics, or a class of works sufficiently described so as to leave no doubt as to the identity of each member of the class, as coming within the description of the enactment. Certainly if the works declared to be for the general advantage of Canada are adequately described, it is no objection that the enactment has grouped them together or described them as a class of works, each member of which can be identified as having been contemplated by Parliament when it made the declaration. And such a declaration cannot be termed a general declaration, if that really is an objection, because it comprises all the works so described. However, wide may be its application, it is specific in its description, and the judgment of Parliament is necessarily directed to each particular work which may now or hereafter come within this description.

It must not be forgotten that the power conferred on Parliament applies to such works as are, before or after their execution, declared by Parliament to be for the general advantage of Canada or for the advantage of two or more provinces. The work may not be in existence when in advance of its execution it is declared for the general advantage of Canada. It must therefore be described so that when it does come into existence it can be identified as being the work which Parliament had in mind when it made its declaration. If this condition be fulfilled, there can be, in my judgment, no possible complaint against a declaration that a class of works, and each member of the class, is for the general advantage of Canada. It matters not that new members of the

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described class may come into existence after the declaration is made, for the declaration can be made before or after the execution of the work. Parliament has considered in advance each new member coming within the described class, and has exercised its judgment as to each. And it would seem as inconvenient as it would be contrary to the wide terms of the grant of power to require that each member of the class should be the object of a new declaration by Parliament when it comes into existence or when plans have been prepared for its construction, (per Mignault J. at pp. 483-4.)

I do not read the passage above quoted from the reasons of Duff J. as saying that a valid class declaration respecting works before their execution must refer to works in progress or at least in contemplation. In the first part of the passage, he was putting the argument on this point that was being advanced by counsel. Since he was dealing with a declaration which did not appear to be limited to railways situate wholly within a province, and which purported to bring railways within federal jurisdiction on the basis of ownership or operation by a Dominion company, and which, moreover, covered railways already within federal jurisdiction, there was warrant for his opinion that “an affirmation in general terms, for example, an affirmation that all railways owned or operated hereafter by a Dominion company are works which ought to be or will be executed, as beneficial to the country as a whole, would be almost, if not quite, meaningless …”. That this was a particular appraisal of s. 6(c) of the Railway Act and was not intended to lay down any general principle is shown by the concluding passage of his reasons on the scope of s. 92(10) (c), where he said this (at p. 477):

Of course, this provision of s. 92 must be construed reasonably, and reasonably applied. Parliament having assumed control of a work, such, for example, as a trunk line of railway within the limits of a province, may well, as included within the jurisdiction intended to be conferred by s. 92(10c), have ample authority with regard to subsidiary works existing and non-existing, even though such subsidiary works should not have been specifically in contemplation at the date of the declaration.

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In any event, when the Luscar Collieries case went to the Privy Council (see [1927] A.C. 925) it was disposed of on the s. 92(10) (a) ground, and the validity of s. 6(c) of the Railway Act as an exercise of the declaratory power was expressly left open. It has remained open to this day, nor has there been in the interval any determination of the validity of s. 174 of the Canada Grain Act, or of the relevant part of s. 45 of the Canadian Wheat Board Act.

Before coming to a conclusion on the validity of these declarations I must deal with a contention of the appellant that s. 2(2) of the Canadian Wheat Board Act makes the definition of “elevator” in s. 2(11) of the Canada Grain Act inapplicable to the former Act. I cannot accept this contention. As I understand the submission on this point, it is as follows: s. 2(2) of the Canadian Wheat Board Act supplants the definition of “elevator” in s. 2(11) of the Canada Grain Act by the definition in s. 2(1) (d) of the Canadian Wheat Board Act; and because of this, s. 174 of the Canada Grain Act, as an exercise of the declaratory power in respect of elevators, cannot bring the necessary specificity into s. 45 of the Canadian Wheat Board Act; there is no identification of elevators save that of “declared” elevators, and this is question‑begging.

In my view, this is to confuse declaration and definition. Words and expressions in the Canadian Wheat Board Act are, by virtue of s. 2(2) thereof, to have the meaning they are given in the Canada Grain Act “unless it is otherwise provided”. In so far as s. 2(1)(d) of the Canadian Wheat Board Act does otherwise provide in respect of the word “elevator”, it is merely referential, pointing to declaratory statutes, one of which is the Canada Grain Act. The declaration in s. 174 thereof operates upon “elevators” as defined in s. 2(11) of that Act. The excepting clause in s. 2(2) of the Canadian Wheat Board Act broadens the scope of any definition imported from the Canada Grain Act which uses the word “elevator” by giving it the meaning in s. 2(1) (d); this encompasses any

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declaration respecting grain elevators, warehouses or mills and not only that in the Canada Grain Act.

Another point lurking in the above-mentioned submission was that s. 2(1) (d) pointed only to elevators that were individually covered by a s. 92(10) (c) declaration; and hence, a class declaration, as in the present case, did not bring the elevators in that class within the Canadian Wheat Board Act. Support for this point was found in the fact that there were individual listings in the Canada Grain Act at the time s. 2(1)(d) was enacted, and this provision was not amended in or after 1950 when the individual listings disappeared. This contention is not convincing. There was a general declaration in the Canada Grain Act as well as a listing of specific elevators; and the fact that s. 2(1) (d) speaks in the singular is not a ground for limiting its operation to elevators which have been individually mentioned in a declaration.

A parliamentary declaration operating on works “after their execution” must identify the works if it is to have any enforceable application. Since s. 92(10) (c) does not prescribe any special method of identification, there is no reason to select any one method over others as the exclusive yardstick of validity. Hence, provided the declaration refers to a work or works wholly situate within a province, identification as, for example, by location or by description or by both (according to the scope of the declaration), would be open. The question is, simply, this: What existing works wholly situate within the province does the declaration embrace? In a particular case, it may be a proper conclusion on the construction of the declaration, being an Act of Parliament, that a certain work is not within it. Such a conclusion would not mean that the declaration is invalid, even if it proves to be ineffective as to the particular work.

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The same approach commends itself to me in respect of works which are made the subject of a declaration “before their execution”, that is, before they are completed. The issue of identification ex post facto may involve difficulties in precise description that would not arise in respect of executed works, but I do not think that any different principle is involved. The maxim certum est quod certum reddi potest has an analogical bearing here. I am satisfied in the present case that s. 2(11) of the Canada Grain Act gives sufficient precision to s. 174 of that Act and, through this latter section, to s. 45 of the Canadian Wheat Board Act to make them effective vehicles for preempting jurisdiction over certain elevators before their execution, but exercisable, of course, only after they have come into existence.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Thompson, Dewar, Sweatman, Winnipeg.

Solicitors for the respondent: The Attorney General of Canada.

Solicitors for the intervenant: The Attorney General of Alberta.