Supreme Court of Canada
The
Queen v. Loblaw Groceteria Company (Manitoba) Limited / The Queen v. Thomson,
[1961] S.C.R. 138
Date:
1960-12-19
Her Majesty The Queen (on the information of
Alexander F. Price) Appellant;
and
Loblaw Groceteria Co. (Manitoba) Ltd. Respondent.
Her Majesty The Queen (on the information of
Alexander F. Price) Appellant;
and
David Thomson, trading under the firm name and style
of Niagara I.G.A. Grocery Respondent.
1960: October 13; 1960: December 19.
Present: Kerwin C.J. and Locke, Fauteux, Abbott and Martland
JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA.
Criminal law—Trading stamps—Criminal liability—Whether
Criminal Code definition of "trading stamps" exhaustive—Criminal
Code, 1953–64 (Can.), c. 61, ss. 322(b), 369(2).
The respondents in both appeals, the circumstances of which
were the same or similar, were charged with unlawfully giving trading stamps to
a customer, contrary to s. 369(2) of the Criminal Code. In each case the
magistrate dismissed the charge, and an appeal by way of a stated case was
dismissed by a majority in the Court of Appeal. The appellant appealed to this
Court.
Held: The appeals should be dismissed.
Per Curiam: The only object in deleting the words
"besides trading stamps commonly so called" from the definition of
trading stamps section in the 1953 revision of the Code (s. 322(b)) was to make
the present definition exhaustive. The word "include" had an
exhaustive definition in the present case.
There was no general accepted definition of "trading
stamps". Here the stamp was not token currency, nor was it used in the
obtaining of goods; it was not usable instead of money in procuring articles
from the issuer of the stamps. The stamp could be redeemed only from the
respondent from whom the article had been purchased and at the premises where
it was sold; and the stamp showed upon its face the place where it was
delivered and where it was redeemable upon demand, and in fact where it was so
redeemed.
[Page 139]
Per Fauteux J.: The word "includes" in s.
322(b) of the Code was, in the context, exclusively related to the words
"any form"; it was not referable to what the documents or other
devices must be as to substance in order to come within the prohibition. While
all-embracing or all-inclusive as to the forms which may possibly be adopted
for such documents or devices, the definition was exhaustive as to the
particular features required as constituent elements of the prohibited trading
stamps. The precise specifications as to substance, contained in (b) (i), (ii)
and (iii) of the section as well as in the saving clause did not justify the
inference that Parliament intended, from the use of the word
"includes", to extend the definition in order to cover any other
documents or devices as to which it said nothing with respect to features
attending issuance, nature of benefit and redemption.
APPEALS from judgments of the Court of Appeal for
Manitoba, affirming orders of acquittal of a
Police Magistrate.
J. A. Scollin, for the appellant in both
appeals.
Edward A. Pitblado, Q.C., and David
Procter, for the respondent, Loblaw Groceterias Co. (Manitoba) Ltd.
J. J. Robinette, Q.C., H. Solway,
Q.C., and J. F. R. Taylor, for the respondent, David Thomson
(Niagara I.G.A. Grocery).
The judgment of Kerwin C.J. and of Locke, Abbott and
Martland JJ. was delivered by
The Chief Justice:—These
two appeals were argued together. I deal first with that in connection with
Loblaw Groceterias Co. (Man.) Limited, which is an appeal against a judgment of
the Court of Appeal for Manitoba on an appeal to it by way of stated
case against an order or judgment of acquittal of a Police Magistrate. By
answering the three questions submitted to it in the affirmative the Court of
Appeal held that on the facts found by the Magistrate, as to which there is no
dispute, he had correctly dismissed the charge against that respondent company
that it did on November 17, 1959, at Winnipeg, unlawfully, being a merchant or
dealer in goods, by its employee or agent, directly, or indirectly, give
trading stamps to William Hrycyk, a person who purchased goods from it.
[Page 140]
The charge was laid under subs. 2 of s. 369 of the Criminal
Code, 1953–54, c. 51:
(2) Every one who, being a merchant or dealer in goods, by
himself or his employee or agent, directly or indirectly gives or in any way
disposes of, or offers to give or in any way dispose of, trading stamps to a
person who purchases goods from him is guilty of an offence punishable on
summary conviction.
Section 369 appears in Part VIII and the first section
in that Part reads as follows:
322. In this Part,
(a) "goods" means anything that is the
subject of trade or commerce; and
(b) "trading stamps" includes any form of
cash receipt, receipt, coupon, premium ticket or other device, designed or
intended to be given to the purchaser of goods by the vendor thereof or on his
behalf, and to represent a discount on the price of the goods or a premium to
the purchaser thereof
(i) that may be redeemed
(A) by any person other than the
vendor, the person from whom the vendor purchased the goods, or the
manufacturer of the goods,
(B) by the vendor, the person
from whom the vendor purchased the goods, or the manufacturer of the goods in
cash or in goods that are not his property in whole or in part, or
(C) by the vendor elsewhere than
in the premises where the goods are purchased; or
(ii) that does not show upon its
face the place where it is delivered and the merchantable value thereof; or
(iii) that may not be redeemed
upon demand at any time,
but an offer, endorsed by the manufacturer upon a wrapper or
container in which goods are sold, of a premium or reward for the return of
that wrapper or container to the manufacturer is not a trading stamp.
The respondent is a merchant or dealer in goods doing
business at 1445 Main St. North, Winnipeg. On November 17, 1959, a member of
the Winnipeg City police force, William Hrycyk, purchased from the respondent
at that address, one tin of sardines for which he paid ten cents; at the time
of the purchase Hrycyk was given by an employee of the respondent, one
"Lucky Green stamp" and a book, called a stamp saver book, in which
could be pasted that stamp and any others secured by the purchaser from time to
time. On the face of the stamp appear the words:
Redeemable at any time
Merchantable Value 2 Mills
1445-Main St. N.
Winnipeg
B.C. Premium Company
[Page 141]
and the stamp saver book states that the stamps are
redeemable at any time and only at the store from which original purchases were
made, and, further that the gifts illustrated in the premium catalogue are the
property of the retailer. There were filed before the Magistrate as one exhibit
a premium catalogue and supplements thereto and it was agreed that the lucky
green stamp scheme was as detailed in that exhibit. Hrycyk presented the stamp
and book to the manager of the respondent's store at the above address for
redemption and he was handed by the manager two cake cups.
The answer given by the majority of the Court of Appeal to
each of the following questions submitted by the Magistrate was:
"Yes".
1. Was I right in law in holding that the word
"includes" in Section 322(b) of the Criminal Code is to be construed
as "means and includes"?
2. Was I right in law in holding that the stamp given to the
said William Hrycyk by the said Loblaw Groceterias Co. Manitoba Limited is not
a trading stamp within the meaning of the term "Trading stamps" in
Section 322(b) of the Criminal Code?
3. Was I right in law in holding that the stamp given to the
said William Hrycyk by the said Loblaw Groceterias Co. Manitoba Limited is not
a trading stamp within the meaning of the term "trading stamps" in
Section 369(2) of the Criminal Code?
Tritschler J.A. and Miller J.A. would have answered
"No" to the questions.
The problem to be decided is whether the lucky green stamp
is a "trading stamp" within the meaning of the Code and more
particularly whether the definition of "trading stamps" in s. 322(b)
is exhaustive. The history of the Criminal Code dealing with trading
stamps shows that the first legislation by Parliament was enacted by c. 9 of
the Statutes of 1905, amending the 1892 Code by the introduction of ss. 526(a)
and 526(b). Until the amendments made to the Code, when it was revised
in 1953 (Statutes of Canada 1953–54, c. 51), the definition section read in
part:
"trading stamps" includes, besides trading stamps
commonly so called, any form of cash receipt, receipt, coupon, premium ticket
or other device, designed or intended to be given to the purchaser of the goods
by the vendor…
[Page 142]
The definition section 322 inserted in the revision of
1953 deleted the underlined words. I can conceive of no object in deleting
these words except to make the present definition of trading stamps exhaustive.
Counsel for the appellant relies upon the statement of Lord Watson delivering
the judgment of the Judicial Committee in Dilworth v. New Zealand
Commissioner of Stamps. He was there referring to ss. 2
and 3 of the Charitable Gifts Duties Exemption Act, 1883, as to which he
said:
Sect. 2 is, beyond all question, an interpretation clause,
and must have been intended by the Legislature to be taken into account in
construing the expression "charitable devise or bequest", as it
occurs in s. 3. It is not said in terms that "charitable bequest"
shall mean one or other of the things which are enumerated, but that it shall
"include" them. The word "include" is very generally used
in interpretation clauses in order to enlarge the meaning of words or phrases
occurring in the body of the statute; and when it is so used these words or
phrases must be construed as comprehending, not only such things as they
signify according to their natural import, but also those things which the
interpretation clause declares that they shall include.
However, Lord Watson continues:
But the word "include" is susceptible of another
construction, which may become imperative, if the context of the Act is
sufficient to show that it was not merely employed for the purpose of adding to
the natural significance of the words or expressions defined. It may be
equivalent to "mean and include", and in that case it may afford an
exhaustive explanation of the meaning which, for the purposes of the Act, must
invariably be attached to these words or expressions.
If authority were needed, the last part of Lord Watson's
statement shows that "include" may be an exhaustive definition and
for the reasons above stated that is the case in the present appeal.
Furthermore, a reference to the dictionaries mentioned by
counsel for the respondent and for the appellant shows that there is no general
accepted definition of "trading stamps". Certainly the stamp here in
question is not token currency; it is not used in the obtaining of goods; it is
not usable instead of money in procuring articles from the issuer of the
stamps, B.C. Premium Company. The stamp delivered to Hrycyk could be redeemed
only from the respondent from whom the tin of sardines had been purchased and
at the premises where it was sold; and the stamp shows upon its
[Page 143]
face the place where it was delivered and where it was
redeemable upon demand, and, in fact, where it was so redeemed.
In the Thomson case, the purchaser, Hrycyk, purchased a tin
of sardines from David Thomson, trading under the name and style of Niagara IGA
Grocery, and upon demand received one safety pin. Hrycyk had received a stamp
and a stamp saver book similar to the articles described in considering the
Loblaw appeal and the same or similar circumstances existed.
The appeals should be dismissed.
Fauteux
J.:—Respondents were charged under sub-section (2) of s. 369 Cr. C., 1953–1954,
c. 51:
(2) Every one who, being a merchant or dealer in goods, by
himself or his employee or agent, directly or indirectly gives or in any way
disposes of, or offers to give or in any way dispose of, trading stamps to a
person who purchases goods from him is guilty of an offence punishable on
summary conviction.
The expression "trading stamps" is defined as
follows in s. 322(b):
322 (b) "trading stamps" includes any form of cash
receipt, receipt, coupon, premium ticket or other device, designed or intended
to be given to the purchaser of goods by the vendor thereof or on his behalf,
and to represent a discount on the price of the goods or a premium to the
purchaser thereof
(i) that may be redeemed
(A) by any person other than the
vendor, the person from whom the vendor purchased the goods, or the
manufacturer of the goods,
(B) by the vendor, the person
from whom the vendor purchased the goods, or the manufacturer of the goods in
cash or in goods that are not his property in whole or in part, or
(C) by the vendor elsewhere than
in the premises where the goods are purchased; or
(ii) that does not show upon its
face the place where it is delivered and the merchantable value thereof; or
(iii) that may not be redeemed upon
demand at any time,
but an offer, endorsed by the manufacturer upon a wrapper or
container in which goods are sold, of a premium or reward for the return of
that wrapper or container to the manufacturer is not a trading stamp.
In essence, the question is whether this definition of
trading stamps is exhaustive, or whether, as contended for by both appellants,
it contemplates a class of trading stamps other than the one as to which
specifications are given.
[Page 144]
The word "includes", appearing in the first line
of the definition is, in the context, exclusively related to the words
"any form"; it is not referable to what the documents mentioned or
other devices must be as to substance in order to come within the prohibition.
While all-embracing or all-inclusive as to the forms which may possibly be
adopted for such documents or devices, the definition is exhaustive as to the
particular features required as constituent elements of the prohibited trading
stamps. The precise specifications as to substance, contained in (b)(i),.(ii)
and (iii) of the section as well as in the saving clause appearing at the very
end of it, do not justify the inference that Parliament intended, from the use
of the word "includes", to extend the definition in order to cover
any other documents or devices as to which it said nothing with respect to
features attending issuance, nature of benefit and redemption.
For the reasons given by the Chief Justice and the reasons
above, I would dismiss the appeals.
Appeals dismissed.
Solicitor for the appellant in both appeals: The
Attorney-General of Manitoba, Winnipeg.
Solicitors for the respondent, Loblaw Groceterias
Co. (Manitoba) Ltd.: Pitblado, Hoskin & Company, Winnipeg.
Solicitors for the respondent, David Thomson
(Niagara I.G.A. Grocery): Johnston, Garson, Forrester, Davison and Taylor,
Winnipeg.
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