Supreme Court of Canada
Canadian Broadcasting Corp. v. Attorney General (Ontario),
[1959] S.C.R. 188
Date: 1959-01-27
The Canadian
Broadcasting Corporation (Plaintiff) Appellant;
and
The Attorney-General
for Ontario (Defendant) Respondent.
1958: October 14, 15; 1959: January 27.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Crown—Sunday observance—Information under
the Lord’s Day Act, R.S.C. 1952, c. 171, s. 4, laid against the Canadian
Broadcasting Corporation—Whether Act binding on Her Majesty—Whether Act binding
on Corporation—Immunity of Sovereign—Writ of prohibition to prevent further
proceedings—The Canadian Broadcasting Corporation Act, R.S.C. 1952, c. 32—The
Interpretation Act, R.S.C. 1952, c. 158, s. 16—The Criminal Code, 1953-54
(Can.), c. 51, s. 2(15).
The Canadian Broadcasting Corporation was
charged before a magistrate with violating the Lord’s Day Act by
operating a broadcasting station on the Lord’s Day. The corporation applied
before a judge in chambers for a writ of prohibition to prevent any further
proceedings and to quash the summons on the ground that the Act did not apply
to Her Majesty and therefore did not apply to the corporation, being an agent
of Her Majesty. The application was refused by the Chief Justice of the High
Court, and his judgment was affirmed by the Court of Appeal.
Held (Taschereau,
Abbott and Judson JJ. dissenting): The Lord’s Day Act did not apply to
the Canadian Broadcasting Corporation, therefore the corporation was entitled
to the writ of prohibition as applied for.
Per Rand,
Cartwright and Fauteux JJ.: The Act did not expressly affect the rights of Her
Majesty. To interpret the definition of the word “person” in s. 2(15) of the Criminal
Code, which definition is incorporated in the Lord’s Day Act, as
drawing the Crown or its agent within the ambit of any prohibitory or punitive
provision of the Act, would be repugnant to the principle of the immunity of
the Crown. The mention of certain Crown services by s. 11 of the Act as being
[Page 189]
exempt from the statute’s application was to
be taken as ex abundantia cautela. Consequently, as the Sovereign was
free to broadcast on Sundays, its agent, the corporation, was immune to
prosecution.
Per Locke J.:
Construed in the manner required by s. 15 of the Interpretation Act, it
was implicit in the language of s. 8 of the Canadian Broadcasting Act, that
the broadcasting activities to be carried on by the corporation were to be
those of a character suited to a national system. Parliament did not
contemplate that these activities should be restricted to week-days. Before
arriving at the conclusion that the activities were unlawful, it was necessary
to show that the prohibitory legislation was clear beyond question and capable
of no other reasonable or sensible interpretation. The King v. Bishop of Salisbury, [1901] 1 Q.B. 573, and River Wear Commissioners v. Adamson, [1877]
2 App. Cas. 743, applied. The interpretation to be given to the word “person”
in the Criminal Code was that the word included the Sovereign only as
one of those against whose person and property various criminal offences could
be committed by others. By the amendment of 1950, declaring that the
corporation was for all purposes an agent of Her Majesty, the same immunity was
conferred on the Canadian Broadcasting Corporation.
Per Taschereau,
Abbott and Judson JJ., dissenting: The Act applied to the corporation,
an agent of Her Majesty, who, by statute, agreed to be bound. There was no
ambiguity in the section of the Lord’s Day Act which purported to
bind the Crown. The Act must be read as if the word “person”, as defined in s.
2(15) of the Criminal Code, were a part of the Act itself, and therefore
meant Her Majesty in relation to the acts and things she was capable of doing
or owning. The very terms of s. 2(15) ruled out the proposition that the Crown
was included only when it was the victim of a criminal act.
APPEAL from a judgment of the Court of Appeal
for Ontario, affirming a
judgment of McRuer C.J.H.C. Appeal allowed, Taschereau, Abbott and Judson JJ.
dissenting.
W.B. Williston, Q.C., and P.M. Troop, for
the appellant.
C.F.H. Carson, Q.C., C.R. Magone, Q.C., and
J.B.S. Southey, for the respondent.
The judgment of Taschereau, Abbott and Judson
JJ. was delivered by
TASCHEREAU J. (dissenting):—The appellant
the Canadian Broadcasting Corporation was prosecuted by the Attorney-General
for Ontario, and the
information dated March 19, 1957, reads as follows:
This is the information of Roy Elmhirst, of
the City of Toronto in the County of York,
secretary hereinafter called “the informant”.
The informant says that he has reasonable
and probable cause to believe and does believe that the Canadian Broadcasting
Corporation
[Page 190]
did on the Lord’s Day Seventeenth of March
Nineteen Hundred and Fifty Seven carry on the business of its ordinary calling
by operating a broadcasting station contrary to the Lord’s Day Act.
“R.H.
Elmhirst”
Signature
of Informant
A motion was made before Chief Justice McRuer of
the High Court of Justice of Ontario to prohibit Magistrate T.S. Elmore from taking any further
proceedings on the above information, and for an order quashing the summons
issued pursuant to the information laid.
The contention on behalf of the Canadian
Broadcasting Corporation is that it is by statute an agent of Her Majesty and
as such, it is not bound by the provisions of the Lord’s Day Act.
The relevant provision of the Lord’s Day Act,
R.S.C. 1952, c. 171, is the following:
4. It is not lawful for any person on
the Lord’s Day, except as provided herein, or in any provincial Act or law
now or hereafter in force, to sell or offer for sale or purchase any goods,
chattels, or other personal property, or any real estate, or to carry on or
transact any business of his ordinary calling, or in connection with such
calling, or for gain to do, or employ any other person to do, on that day, any
work, business, or labour.
The only question which has to be resolved now
is: Does s. 4 of the Lord’s Day Act apply to the Canadian Broadcasting
Corporation which is by statute an agent of Her Majesty? If the answer is
affirmative, as decided by the learned Chief Justice of the High Court of
Ontario, whose judgment was confirmed by the Court of Appeal, the case will proceed, and it will of
course then be open to the appellant to raise the defence of “mercy and
necessity” as provided in s. 11 of the Act. If the answer is negative, then the
case will have come to an end.
Section 4 of the Canadian Broadcasting
Corporation Act, R.S.C. 1952, c. 32, provides:
4.(1) The Corporation is a body corporate
having capacity to contract and to sue and be sued in the name of the
Corporation.
(2) The Corporation is for all purposes of
this Act an agent of Her Majesty and its powers under this Act may be
exercised only as an agent of Her Majesty.
(3) Actions, suits or other legal
proceedings in respect of any right or obligation acquired or incurred by the
Corporation on behalf of Her Majesty, whether in its name or in the name of Her
Majesty may be
[Page 191]
brought or taken by or against the
Corporation, in the name of the Corporation in any court that would have
jurisdiction if the Corporation were not an agent of Her Majesty.
There is no doubt that at common law the Crown
is not bound by a statute, unless expressly named or bound by necessary
implication. Halsbury, 3rd ed., vol. 7, p. 246.
As it has been said by Lord Alverstone in The
Hornsey Urban District Council v. Hennell:
In our opinion, the intention that the
Crown shall be bound, or has agreed to be bound must clearly appear either from
the languages used or from the nature of the enactments . . .
It is unnecessary to cite all the authorities
that have been referred to us on the matter except perhaps the cases of Weymouth v. Nugent, The Attorney General for Quebec v. The Attorney General for Canada (Silver
Brothers case) and Bombay
v. Bombay, which
are leading authorities on the matter, and particularly the last of these three
cases in which it was held by the Judicial Committee that it is the general
principle in England that in deciding whether the Crown is bound by a statute,
it must be expressly named, or be bound by necessary implication. This appears
to me to be now the settled law, and it has not been challenged by the parties
in the present case and is accepted by both of them.
Under the Interpretation Act, R.S.C.
1952, c. 158, s. 16, it is provided:
16. No provision or enactment in any act
affects, in any manner whatsoever, the rights of Her Majesty, her heirs or
successors, unless it is expressly stated therein that Her Majesty is bound
thereby.
Furthermore, the Lord’s Day Act, s. 4,
applies to any person and s. 2(d) of the same Act defines the word
“person” as follows:
2.(d) “person” has the meaning that it has
in the Criminal Code.
The Criminal Code, s. 2(15), defines the
word “person” as follows:
2.(15) “every one”, “person”, “owner”,
and similar expressions include Her Majesty and public bodies, bodies
corporate, societies, companies and inhabitants of counties, parishes,
municipalities or other districts in relation to the acts and things that they
are capable of doing and owning respectively.
[Page 192]
It is the contention of the appellant
corporation that Parliament will not infringe rights or depart from the general
system of law by ambiguous language found in a definition section. The
intention to make such changes must appear with irresistible clearness. In
support of this proposition, counsel for the appellant has cited among others
the following statement of Earl Halsbury in Leach v. Rex:
If you want to alter the law which has lasted
for centuries, and which is almost ingrained in the English Constitution,… to
suggest that that is to be dealt with by inference, and that you should
introduce a new system of law without any specific enactment of it, seems to me
to be perfectly monstrous.
The result is that I entirely concur with
the judgment of the Lord Chancellor, and particularly with that part of it in
which he said that such an alteration of the law as this ought to be by
definite and certain language.
And also what has been said by Lord Goddard in National
Assistance Board v. Wilkinson:
. . . it may be presumed that the
legislature does not intend to make a substantial alteration in the law beyond
what it expressly declares. In Minet v. Leman (1855) 20 Beav. 269, Sir
John Romilly M.R. stated as a principle of construction which could not be
disputed that “the general words of the Act are not to be so construed as to
alter the previous policy of the law, unless no sense or meaning can be applied
to those words consistently with the intention of preserving the existing
policy untouched.”
No one, of course, will challenge these
propositions, and I fully agree with the appellant’s contention that what is
deep-seated in the common law of the country can only be overturned by a clear,
definite and positive enactment, and not by some ambiguous reference to other
statutes (Leach v. Rex supra), but when the enactment is clear,
the statute overrides the common law, and may even, in some cases, affect the
prerogatives of the Crown.
I cannot find any ambiguity in the
section of the Lord’s Day Act which purports to bind the Crown. It
is my opinion that the combined effect of the Lord’s Day Act and of the
relevant sections of the Criminal Code, is to import and
incorporate into the Lord’s Day Act, the definition of the word “person”
found in the Criminal Code.
[Page 193]
The Lord’s Day Act must be read as if the
word “person” as defined in the Criminal Code were a part of the Act
itself, and therefore meant Her Majesty, in relation to the acts and things she
is capable of doing and owning. A meaning must be given to these words,
and I find it impossible to ignore them, and not give them the full effect that
Parliament, I think, intended to give them.
It has been argued that the word “person”
includes the Crown only when it is a victim of a criminal act. The very terms
of s. 2(15) of the Criminal Code, which applies to the Lord’s Day
Act, rule out this proposition, because in most unambiguous language, the
section states that “person” includes Her Majesty in relation to the acts
that she is capable of doing and owning.
I fully admit that the rule that the Crown is
bound when a statute says it in unequivocal terms, may lead to very serious
consequences. I can easily visualize cases, particularly in criminal matters,
where it would be repugnant to the common law to hold Her Majesty
liable. Many reasons would outweigh all that could be said in support of the
binding effect of the Act. What is repugnant and leads to an absurdity must
be considered as inoperative.
It has often been said that no modification of
the language of a statute is ever allowable in construction, except to avoid an
absurdity, which appears to be so, not to the mind of the expositor merely, but
to that of the legislature, that is, when it takes the form of a repugnancy (Maxwell
on Interpretation of Statutes, 10th ed., p. 252).
In the case of Warburton v. Loveland, Burton J. says:
However, it is, for the present, sufficient
to say, that no necessity for adopting it is shown; and I apprehend it is a
rule in the construction of statutes, that, in the first instance, the
grammatical sense of the words is to be adhered to. If that is contrary to, or
inconsistent with any expressed intention, or any declared purpose of the
statute; or if it would involve any absurdity, repugnance, or inconsistency in
its different provisions, the grammatical sense must be modified, extended, or
abridged, so far as to avoid such an inconvenience, but no farther.
This judgment of Mr. Justice Burton was
confirmed by the House of Lords.
[Page 194]
In Abel v. Lee, Mr. Justice Willes says:
No doubt the general rule is that the
language of an Act of Parliament is to be read according to its ordinary
grammatical construction, unless so reading it would entail some absurdity,
repugnancy or injustice.
At page 372 it is said that in case of absurdity
we ought to modify the language of the Act.
In Cox v. Hakes, Lord Field said:
Now the admitted rule of construction, from
which I am not at liberty to depart, lay down that I cannot infer an intention
contrary to the literal meaning of the words of a statute, unless the context,
or the consequences which would ensue from a literal interpretation, justify
the inference that the Legislature has not expressed something which it intended
to express, or unless such interpretation (in the language of Parke B. in Becke
v. Smith (2 M. & W. 191, 195)) leads to any manifest “absurdity or
repugnance”…
In Cristopherson v. Lotinga, Justice Willes said:
I am not disposed to differ from the opinion
expressed by my Lord and my Brother Williams, though I must confess I should
have thought we might have arrived at a satisfactory conclusion by acting upon
the rule laid down by Lord Wensleydale in Becke v. Smith 2 M. & W.
191, 195, upon the authority of Burton J., in Warburton v. Love land d.
Ivie, 1 Hudson & Brooke, 623, 648, where he says: “It is a very useful
rule in the construction of a statute, to adhere to the ordinary meaning of the
words used, and to the grammatical construction, unless that is at variance
with the intention of the legislature, to be collected from the statute itself,
or leads to any manifest absurdity or repugnance, in which case the language
may be varied or modified, so as to avoid such inconvenience, but no farther”. I
subscribe to every word of that, assuming the word “absurdity” to mean no more
than “repugnance”.
In Motteram v. The Eastern Counties Rly Co., Willes J. expressed his views as
follows:
Even if that were not the true grammatical
construction of the statute, I apprehend it would nevertheless be necessary so
to construe it; because, if the giving a strict grammatical construction to a
statute leads to any repugnance or absurdity,—in the sense of being contrary to
the mind and intention of the framers of the act,—we are bound so to read the
words as to avoid that result.
The above principles might surely apply in
criminal matters, for it would be an absurdity, and a repugnancy to the laws of
the land, to hold that His or Her Majesty, the “fountain of justice”, who is
incapable of doing a “wrong act” could be guilty of some of the crimes found in
the Criminal Code.
[Page 195]
But here, we are not dealing with the Criminal
Code, but with the Lord’s Day Act and with a particular case, where
an agent of the Crown is alleged to have committed a violation of the statute.
It is only the definition of the word “person”, which includes the Crown, that
is imported from the Criminal Code. I can see no absurdity, repugnance
or inconsistency with any other existing laws, written or unwritten, in the
fact of the Attorney General of Ontario in the rights of Her Majesty the Queen,
prosecuting the appellant, a federal agent of Her Majesty, who by statute has
agreed to be bound.
The principle that the Crown is indivisible is
not an absolute one. There is no legal obstacle to prevent the federal
Government in the rights of Her Majesty, to enforce its rights before the
Courts of the country, against a provincial Government also in the rights of
Her Majesty, and vice versa. The Crown operates through distinct
instrumentalities in respect of its several governments. (Halsbury, 3rd
ed., vol. 5, p. 459).
As Lord Dunedin said in Silver Brothers,
supra, at p. 514:
Quoad the Crown in the Dominion of Canada
the Special War Revenue Act confers a benefit, but quoad the Crown in the Province of Quebec it proposes to bind the
Crown to its disadvantage. It is true that there is only one Crown, but as
regards Crown revenues and Crown property by legislation assented to by the
Crown there is a distinction made between the revenues and property in the
Province and the revenues and property in the Dominion. There are two separate
statutory purses. In each the ingathering and expending authority is different.
If the appellant corporation were right in its
submissions, it would mean as pointed out by the learned Chief Justice of the
High Court, that it could breach the provisions of the Canadian Broadcasting
Act which prohibits dramatized political broadcasting without the
announcement of the names of the sponsor or sponsors, and political broadcasts
on any Dominion, provincial or municipal election day and on the two days
immediately preceding such election day.
I am quite satisfied that it never entered the
mind of Parliament that C.B.C. could not be reached by the statute, while all
the other private stations, not agents of the Crown, and which are now on an
equal footing with the appellant, would be amenable to the law.
[Page 196]
For the above reasons as well as for those given
by Roach J.A. in the Court of Appeal, with which I am in substantial agreement,
I am of the opinion that this appeal fails and that it should be dismissed.
The judgment of Rand, Cartwright and Fauteux JJ,
was delivered by
RAND J.:—At common law admittedly the Sovereign
could not be impleaded in his courts; they were established by him to
administer the law of the land between subjects; but, as Bracton laid it down
and as Coke admonished James I, he himself was under the law, a law which
brooded over England encompassing all persons and, among other things, created
the powers of the Sovereign, the residue of which today we call the
prerogative.
In the language of the early commentators and
Courts that immunity was associated with qualities attributed to him: he was
the fountain of justice and of honour; the writs commanded in his name; through
his Attorney-General he guarded the public interest against violators; and
something more, he could do no wrong. The view advanced today is that this
affirmation derived from that lack of jurisdiction, which I take to mean as
distinct from affecting the quality of an act done, and not from the
impossibility, in existing legal contemplation, of attributing wrong to him.
To the penal law of England all persons were subject and no mandate or order from any state
officer up to and including the Sovereign could render lawful an act prohibited
as a crime; this excluded obviously any executive act within the prerogative.
May a statute in general words apply so as to stigmatize the act as done by the
Crown an offence without affecting the Crown’s immunity from proceedings? Is
liability to punishment in all cases essential to criminal quality of an act?
Is an act forbidden the Crown excluded from attribution to the Crown for all
purposes including accessorial liability of an agent? Answers to these
questions may not be essential to a decision here but their consideration is
not irrelevant.
Some light is thrown on them by the judgment in Cain
v. Doyle. There
an officer of the Crown was charged with “aiding and abetting” in the dismissal
of an employee of
[Page 197]
the Crown contrary to a regulation made
applicable to the Crown, and in general language providing a penalty for
violation. Notwithstanding that the regulation as a directive bound the
executive, for the breach of which, apparently, civil remedies against the
Crown would lie, it was held that the penalty did not so extend and that the
officer could not be convicted as charged although his act appears to have
brought about the termination of employment. As he was not an “employer” he
could not be held liable as principal; as the penalty was not incurred by the
Crown, not as accessory. That I take to be the effect of the majority reasons
of Dixon J. (now Chief Justice). The language of application was that “unless
the contrary intention appears” the word “employer” included the Crown; and the
“contrary intention” was found in the principle of immunity. Notwithstanding
that the act was not null and void, that it was effective in one aspect, the
same result was reached as from the conception that the Crown is incapable of
wrong, that there was no criminal quality in what was done.
The act there is distinguishable from that here
in several respects: it was in contractual relations; it could be done only by
or for an employer; and the Crown was forbidden to do it. Here the act is
wholly criminal, it can be done by a subject, who, if the act is forbidden to
the Crown, would be liable as principal if purporting to act for the Crown. If
the statute extends to the Crown neither in relation to the act nor to
liability, there can be no doubt of its lawfulness.
The offence has been created by the Lord’s
Day Act, R.S.C. 1952, c. 171, s. 4:
It is not lawful for any person on the
Lord’s day, except as provided herein, or in any provincial Act or law now or
hereafter in force, to sell or offer for sale or purchase any goods, chattels,
or other personal property, or any real estate, or to carry on or transact any
business of his ordinary calling, or in connection with such calling, or for
gain to do, or employ any other person to do, on that day, any work, business,
or labour.
[Page 198]
By s. 2(d) of that Act, “ ‘person’ has the
meaning given in the Criminal Code”. Section 2(15) of the Code
defines “person” as
“every one,” “person,” “owner,” and similar
expressions include Her Majesty and public bodies, bodies corporate, societies,
companies and inhabitants of counties, parishes, municipalities or other
districts in relation to the acts and things that they are capable of doing and
owning respectively;
The enactment is met at the threshold by s. 16
of the Interpretation Act:
No provision or enactment in any Act
affects, in any manner whatsoever, the rights of Her Majesty, her heirs or
successors, unless it is expressly stated therein that Her Majesty is bound
thereby.
Does, then, the Lord’s Day Act expressly
affect the rights of Her Majesty?
The definition of the Code is to be taken as
incorporated in the Lord’s Day Act but its interpretation in each case
must be the same; the purpose of its incorporation was undoubtedly to make the
application of the new offences to “persons” uniform with that of the general
law and we are remitted to its meaning in the Code.
To say that it intends and has effect to include
the Crown as an ordinary subject of the prohibitory or the penal provisions of
the Code is repugnant to the principle of immunity in both aspects. If such a
fundamental change had been intended it would not have been effected by a
clause of general definition. There is ample matter for legitimate application
to Her Majesty, the obvious one being that of a “person” who is the victim of
criminality, not its perpetrator: in such and other instances it is used in the
description of a factual situation. The definition is to be read distributively
and wherever a person so designated can properly be brought within the
substantive provisions, that is, in the light of their intendment, of the
underlying basic ideas and assumptions of the common law, two of which are that
the King can do no wrong and that he cannot be impleaded, and within the
punishment prescribed, then that “person” is intended to be designated as one
against whom the prohibition is directed and on whom the penalty can be
imposed. The application of the word to corporations, societies, companies, and
the other legal entities enumerated must clearly be made on those
considerations.
[Page 199]
So interpreted, I am unable to agree that the
definition expressly draws the Crown within the ambit of any prohibitory or
punitive provision of the Lord’s Day Act. The mention of certain Crown
services by s. 11 as exempt from the statute’s application is, as Laidlaw J.
held, to be taken as ex abundantia cautela.
The situation of the Crown, then, is this: by
the Canadian Broadcasting Act, R.S.C. 1952, c. 32, ss. 4 and 8, the
appellant, as agent of Her Majesty “shall carry on a national broadcasting
service within Canada.” No limit or restriction of time is prescribed for
furnishing that service; and in the absence of an express and contrary
enactment by Parliament, that time is unlimited. The effect of s. 16 of the Interpretation
Act is to render the Crown under the Broadcasting Act as
unrestricted as if the Lord’s Day Act had not been passed. If the
Sovereign is free to broadcast on Sunday, those who do the acts necessary to
that service are immune from prosecution because the act they do is the lawful
act of the Sovereign, attributable to him and untainted with criminal
character.
I would, therefore, allow the appeal, set aside
the judgment and order below, and direct a prohibition to issue as applied for.
LOCKE J.:—By an information laid before a
justice of the peace of the Province of Ontario on March 20, 1957, the Canadian
Broadcasting Corporation was charged with carrying on “the business of its
ordinary calling by operating a broadcasting station, contrary to the Lord’s
Day Act”. The corporation moved before a judge of the Supreme Court of
Ontario, sitting in chambers, for an order to be directed to Magistrate T.S.
Elmore, senior magistrate of the County of York, before whom it was proposed
that the charge be heard, that he:
be prohibited from taking any further
proceedings in this matter and more particularly from convicting the Canadian
Broadcasting Corporation of the charge.
That motion was dismissed by a judgment of the
Chief Justice of the High Court and the appeal taken by the broadcasting
corporation from that judgment was in turn dismissed by the Court of Appeal; Laidlaw and F.G. Mackay JJ.A. dissenting.
Pursuant to leave granted by this Court, the present appeal was brought.
[Page 200]
It is to be noted that the charge laid was not
that the corporation carried on broadcasting of any particular kind or nature
on Sunday. It was simply a charge that the corporation violated the Act by
operating a broadcasting station. While the information does not say so,
presumably the broadcasting station referred to was one operated in the
Province of Ontario.
While broadcasting as a national enterprise was
undertaken several years earlier in England, it was first so undertaken in 1932
when the Canadian Radio Broadcasting Act was passed (c. 51,
Statutes of 1912). That Act established the Canadian Radio Broadcasting
Commission which was declared to be a body corporate, with capacity to contract
and to sue and be sued in its own name and to hold property. By s. 8 power was
given to the commission to regulate and control broadcasting in Canada carried
on by any person, including His Majesty in the right of the province or of the
Dominion. Section 9 gave to the commission power to carry on the business
of broadcasting in Canada and, inter alia, to construct broadcasting
stations and to make operating agreements with private stations for the
broadcasting of national programs.
The 1932 Act was repealed by the Canadian
Broadcasting Act 1936 (c. 24). This statute established the corporation
which is the present appellant and prescribed the manner in which its
activities should be directed. Section 8 declares that the corporation
“shall carry on a national broadcasting service within the Dominion of Canada”.
For that purpose the corporation may, inter alia, maintain and operate
broadcasting stations, equip such stations with the requisite plant and
machinery, originate programs, collect news relating to current events in any
part of the world and in any manner that may be thought fit, and do all such
other things as the corporation may deem incidental or conducive to the
attainment of any of the objects or the exercise of any of the powers of the
corporation. To the extent that its revenues are insufficient, the moneys
required for its activities are provided by grants authorized by Parliament.
[Page 201]
By s. 5 of c. 51 of the Statutes of 1950, s. 4
of the 1936 Act, which declared that the corporation shall be a body corporate
having capacity to contract and to sue and be sued in its own name, was amended
by adding the following:
(2) the corporation is for all purposes of
this Act an agent of His Majesty and its powers under this Act may be exercised
only as an agent of His Majesty.
A further amendment provided that actions, suits
and other legal proceedings in respect of any right or obligation acquired or
incurred by the corporation on behalf of His Majesty might be brought by or
against it.
The Act now appears as R.S.C. 1952, c. 32.
It is to be noted that the language imposing
upon the corporation the obligation to carry on a national broadcasting service
is imperative. While the power to maintain and operate broadcasting stations is
permissive in form, in this context this and other powers, the exercise of
which is necessary for carrying on an effective national service, being coupled
with a duty should be construed as imperative: Julius v. Bishop of Oxford; The King v. Mitchell.
The Lord’s Day Act was first enacted by
Parliament as c. 27 of the Statutes of 1906 and subs, (b) of s. 1 then read:
“Person” has the meaning which it has in
the Criminal Code 1892.
It was apparently passed in consequence of the
finding of the Judicial Committee in Attorney General of Ontario v. The
Hamilton Street Railway, that
the Lord’s Day Act of Ontario, R.S.O. 1897, c. 246, was ultra vires. The
early history of this latter statute is described in the judgment of
Mr. Justice Laidlaw.
In the present statute, R.S.C. 1952, c. 171,
subs. (d) of s. 2 reads:
“Person” has the meaning that it has in the
Criminal Code.
The Criminal Code, when first enacted in
1892, by subs. (t) of s.2 differed only in an immaterial manner from subs. (15)
of s.2 of the new Criminal Code which reads:
“every one,” “person,” “owner,” and similar
expressions include Her Majesty and public bodies, bodies corporate, societies,
companies and inhabitants of counties, parishes, municipalities or other
districts in relation to the acts and things that they are capable of doing and
owning respectively.
[Page 202]
Section 4 of the Lord’s Day Act declares
that, subject to defined exceptions, it is not lawful for any person on the
Lord’s Day “to carry on or transact any business of his ordinary calling or in
connection with such calling”. The, ordinary calling of the Canadian
Broadcasting Corporation is broadcasting from stations situate at various
places in Canada and, if the Act applies, any broadcasting of any nature
appears to be prohibited unless such activities can be brought within some of
the exceptions to be found in s.11. That section appears under a
sub-heading “Works of Necessity and Mercy Excepted.” These exceptions, with a
slight change, immaterial in the present matter in subs. (s) appeared in the
Act when it was first enacted. Of necessity, since broadcasting was unknown in
1906, none of the exceptions refer to the business of broadcasting, whatever
the purpose. Subsection (t) excepts “work done by any person in the public
service of Her Majesty while acting therein under any regulation or direction
of any department of the government”, as being one of the works of necessity
referred to in the sub‑heading. The Canadian Broadcasting Corporation
does not fall within this exception since, while all its activities are carried
on as the agent of Her Majesty, it does not act under any regulations or
directions of any department of the government. Thus, if the Act applies, there
was jurisdiction in the magistrate to entertain the charge.
The penal provisions of the Lord’s Day Act of
1906 have not been changed, but times have changed. It is now sought to apply
them in circumstances that were never contemplated by the Parliament which
passed the Act.
The Canadian Broadcasting Act is to be
construed in the manner required by s. 15 of the Interpretation Act, R.S.C.
1952, c.158, and receive:
such fair, large and liberal construction
and interpretation as will best ensure the attainment of the object of the Act…
according to its true intent, meaning and spirit.
In my opinion, it is implicit, in the language
of s.8 of the Act, that the broadcasting activities to be carried on were to be
those of a character suited to a national broadcasting system, with all that
this implied. The broadcasting of news, of music and of various other material
was
[Page 203]
commenced as a national undertaking in England
prior to 1926 and has been carried on exclusively by the British Broadcasting
Corporation since that year. In Canada, the Canadian Broadcasting Commission of
the 1932 Act and the corporation established in 1932 were created, in my
opinion, in order to supply to the people of this country the same general kind
of service as was then being given in England. The activities of the British
Broadcasting Corporation in distributing news and performing other useful
public services were never restricted to week days. Parliament did not
contemplate in 1932 and 1936 that they would be so restricted in this country,
in my opinion.
The institution of broadcasting provided a means
whereby news could be communicated to all of the people of Canada with a speed
theretofore unknown. Formerly, newspapers, the telephone, the telegraph and the
mail afforded the only means of such communication. The transmission of
telephone and telegraph messages is one of the exceptions to the prohibition
provided by s.11: the publication of newspapers on Sunday is, however, still
forbidden.
For more than 25 years past, the agency set up
by Parliament has kept the Canadian people informed by radio of world events
within hours of their occurrence, and that this should be done on every day of
the week has become an accepted part of our way of life. In addition, services
have been rendered daily which are of great value in the preservation of life
and property in navigation and agriculture, of which weather forecasts and
storm warnings are examples. Other broadcasting such as that of church services
and religious music on Sunday, for the benefit of the sick and the disabled and
those living in places where access to churches is difficult or impossible, is
carried on throughout the week. This is, I am sure, regarded as of inestimable
benefit by great numbers of Canadian people. The exceptions provided by s. 11
of the Lord’s Day Act do not appear to cover any such activities and,
accordingly, they are unlawful if the respondent’s contention is to be
accepted.
Before arriving at any such conclusion, it is
necessary, in my judgment, that the prohibitory legislation be clear beyond
question and capable of no other reasonable or sensible interpretation.
[Page 204]
The point to be determined is as to the meaning
to be assigned to the language of subs. (15) of s.2 of the Criminal Code, in
so far as it relates to Her Majesty. It reads that “person” includes Her
Majesty. Does this mean that the Sovereign may be charged with any of the
multitude of offences described in the Criminal Code which she, as an
individual, is capable of committing and summoned to appear before a tribunal
charged with the duty of determining the guilt or innocence of persons
infringing the crimnal laws and, if guilty, imposing punishment?
The definition of “person” in substantially its
present form, as has been stated, appeared when the Criminal Code was
first enacted in 1892. At that time and at present the state of the law in
relation to the liability of the Sovereign to criminal proceedings appears to
me to be accurately stated in Halsbury, 3rd ed., vol. 7, p. 223, in
the following terms:
The person of the Sovereign is inviolable,
since it is declared by statute to be the undoubted and fundamental law of the
kingdom that neither the peers of this realm nor the Commons, nor both
together, either in Parliament or out of Parliament, nor the people
collectively or representatively, nor any other persons whatsoever, ever had,
have, or ought to have any coercive power over the persons of the Kings of this
realm.
So also the person of the Sovereign is
immune from all suits and actions at law, either civil or criminal.
There is no power or authority within her
dominions capable of binding the Sovereign, save only the Sovereign herself in
Parliament, and then only by express mention or clear implication.
I do not think that it is any longer right to
say that the Queen can do no wrong, though in earlier times the immunity was so
stated: Holdsworth’s History of English Law, vol. 3, p. 458.
The true ground appears to me to be correctly
stated in the following passage from Russell on Crime, 11th ed., p.
103:
Notwithstanding the words of Hale “the law
presumes, the king will do no wrong, neither indeed can do any wrong”; and of
Blackstone, who carried this further by stating that the law “ascribes to the
king, in his political capacity, absolute perfection” and that he “is not only
incapable of doing wrong, but even of thinking wrong,” the doctrine of regal
immunity really rests upon the fact that no British tribunal has jurisdiction
under which the sovereign can be tried.
[Page 205]
The matter is similarly dealt with in Kenny’s
Outline of Criminal Law, 17th ed., p. 69.
The consent of the Sovereign to all legislation
in the Parliament of Canada is given on her behalf by her representative, the
Governor General, and that assent was, of necessity, given when the Criminal
Code was first enacted. The question, however, is: was it intended to
depart from the long standing principle of law which had existed in England
since prior to Bracton’s time and subject the Sovereign personally to criminal
prosecution in the Courts of this country?
In my opinion, the language should not be so
interpreted. Rather, should it be construed as meaning that “person” includes
the Sovereign as one of those against whose person and property various
criminal offences may be committed by others. In The King v. Bishop of
Salisbury, Wills
J. said that, where an affirmative statute is open to two constructions, that
construction ought to be preferred which is consonant with the common law. I
would apply that rule in the present matter. I am further of the opinion that
the remarks of Lord Blackburn in River Wear Commissioners v. Adamson, are applicable.
In my view, support is to be found for this
construction in the fact that Parliament in 1950 added to the Canadian
Broadcasting Act an express declaration that in all its activities the
corporation acts as agent of the Sovereign. It was apparently considered
desirable that the broadcasting corporation should not be controlled by and be
subject to the direction of a department of the federal Government. Had that
been done, its activities would have been exempt under subs. (t) of s.11 of the
Lord’s Day Act. In lieu of that, the status of the corporation was
declared to be that of an agent of Her Majesty and its activities as being
carried on on her behalf which, I consider, conferred the same immunity.
I would allow this appeal and direct that a writ
of prohibition issue.
Appeal allowed, Taschereau, Abbott and
Judson JJ. dissenting.
[Page 206]
Solicitors for the appellant: Fasken,
Robertson, Aitchison, Pickup & Calvin, Toronto.
Solicitor for the respondent: The
Attorney-General for Ontario, Toronto.
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