Nova Scotia Board of Censors v. McNeil, [1976] 2 SCR 265

SUPREME COURT OF CANADA

Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265

Date: 1975-05-20

The Nova Scotia Board of Censors (Also known as the Amusements Regulation Board of Nova Scotia)

and

The Attorney General in and for the Province of Nova Scotia Appellants;

and

Gerard McNeil Respondent.

1975: April 29, 30; 1975: May 20.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION

Actions—Status—Standing of taxpayer—Challenge of provincial legislation—Theatres and Amusements Act, R.S.N.S. 1967, c. 304.

The respondent, a resident and taxpayer in the Prov­ince of Nova Scotia, had become concerned about the wide powers of the Nova Scotia Board of Censors. He had enquired about a particular film and when the Board made public its decision to prohibit exhibition of that film without giving reasons the respondent invoked the statutory provision for appeal to the Lieutenant-Governor in Council as provided by s. 3(4) of the Theatres and Amusements Act, R.S.N.S. 1967, c. 304, but was not recognized as having any right to appeal. He then sought through the Attorney-General of Nova Scotia to have the constitutionality of the Provincial Act tested before the Appeal Division. After some corre­spondence with counsel for the Attorney-General respondent brought his application for a declaration that certain sections of the Theatres and Amusements Act and certain regulations thereunder were ultra vires. The question of the respondent's locus standi, to impeach the constitutional validity of the statute, was raised as a preliminary objection. This objection was rejected by the Nova Scotia Courts and an appeal was brought to this Court.

Held: The appeal should be dismissed.

The respondent had taken all the steps that he could reasonably be required to take in order to make the question of his standing ripe for consideration. A serious and substantial constitutional issue had been raised by the respondent's declaratory proceeding. While film exchanges, theatre owners, cinematograph operators and

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apprentices are directly affected by the impugned legis­lation and would be entitled to take proceedings with respect to it, the members of the public arguably also had a direct interest. It arose from the power given to the Board to determine what members of the public may view in theatres or other places of public entertainment. In view of the fact that there was no other way in practical terms to subject the challenged Act to judicial review the Court was justified in the circumstances in exercising its discretion to grant standing to the respondent.

Smith v. A.-G. Ont., [1924] S.C.R. 331; Thorson v. A.-G. Can. et al. (No. 2), [1975] 1 S.C.R. 138 referred to.

APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1], affirming the judgment of Hart J.[2] on preliminary objections on an application for a declaration that the Theatres and Amusements Act, R.S.N.S. 1967, c. 304, and some of the Regulations thereunder, were ultra vires the provincial legislature. Appeal dismissed.

Bruce J. Preeper, and William M. Wilson, for the appellants.

Robert Murrant, and Dereck M. Jones, for the respondent.

M. Manning, for the intervenant, Attorney-Gen­eral of Ontario.

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

K. Lysyk, Q.C., for the intervenant, Attorney-General of Saskatchewan.

T. B. Smith, Q.C., for the intervenant, Attor­ney-General of Canada.

S. Borins, and G. D. Watson, for the interve­nant, Canadian Civil Liberties Association.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This appeal from the unanimous judgment of the Appeal Division of the Supreme Court of Nova Scotia, affirming the judgment of Hart J., was brought here by leave of

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the Appeal Division, purporting to act under s. 38 of the Supreme Court Act, R.S.C. 1970, c. S-19. On the opening of the appeal, this Court raised, ex proprio motu, the question whether, in view of s. 44 of the Supreme Court Act, it was open to the Appeal Division to grant leave if, as appeared to be the case, a discretionary order was involved. Upon an application thereupon made by the appel­lant for the leave of this Court, pursuant to s. 41 of the Act, as amended by 1974-75 (Can.), c. 18, s. 5, leave was given with costs to the respondent in any event.

The litigation out of which this appeal arose originated in an application by the respondent, then a resident and taxpayer in the Province of Nova Scotia, for a declaration that the Theatres and Amusements Act, R.S.N.S. 1967, c. 304 and some of the regulations thereunder were ultra vires the provincial Legislature. The merits were not reached because of certain preliminary objec­tions which were raised for prior determination. Of these the most important one, and the only one meriting consideration by this Court, was the ques­tion of the respondent's locus standi, his standing or status to impeach the constitutional validity of the provincial statute.

In granting leave, this Court indicated that where, as here, there is an arguable case for according standing, it is preferable to have all the issues in the case, whether going to procedural regularity or propriety or to the merits, decided at the same time. A thoroughgoing examination of the challenged statute could have a bearing in clarifying any disputed question on standing. I note that in Smith v. Attorney General of Ontario[3], Duff J. thought that the issue of stand­ing was an arguable one and since the merits had been canvassed "we are loath to give a judgment against the appellant solely based upon a fairly disputable point of procedure, and accordingly we think it right to say that in our opinion the appel­lant's action also fails in substance" (at p. 338).

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Although the merits have not been canvassed in this case, it has not been disputed by any of the counsel who supported the position of the appel­lant, being appellant's counsel and counsel for the Attorney General of Ontario, of Alberta and of Saskatchewan, that a serious, a substantial consti­tutional issue had been raised by the respondent's declaratory proceeding. The question of standing here begins with this feature of the proceeding, just as it did in Thorson v. Attorney General of Canada[4].

It is part of the record before this Court that the respondent, then editor of a weekly newspaper published in the City of Dartmouth in Nova Scotia, had become concerned about the wide powers exercisable by the Nova Scotia Board of Censors, whose name was changed by 1972 (N.S.), c. 54 to the Amusements Regulation Board of Nova Scotia. In particular he made inquiries whether the film "Last Tango in Paris" would be permitted by the Board to be shown in Nova Scotia. Early in 1974, the Board made public its decision to prohibit the exhibition of the film, no reasons being given. The respondent invoked the statutory provision for appeal to the Lieutenant-Governor in Council, as provided by s. 3(4) of the Theatres and Amusements Act, but was not recog­nized as having any right to appeal. He also requested the Attorney General to refer the consti­tutionality of the provincial Act to the Appeal Division, but was unable to elicit any affirmative or negative response to his request. Indeed, in correspondence with the respondent's counsel, counsel for the Attorney General took the position that the Act was intra vires and there appeared to be no right in the respondent to attack its validity. Thereafter, the respondent brought his application for a declaration.

In my opinion, the respondent took all the steps that he could reasonably be required to take in order to make the question of his standing ripe for consideration. It was suggested, albeit faintly, that he ought to have also sought the intervention of the Attorney General of Canada by way of having him direct a reference to this Court. This is not a suggestion which can stand in the way of a deter­mination of the issue which is before this Court.

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The submissions on the issue of standing made by counsel for the parties and for the intervenors, who included the Attorney General of Canada and the Canadian Civil Liberties Association (both supporting the respondent) as well as the provin­cial Attorneys General previously referred to, were very largely concerned with the scope of the Thorson decision and, on the part of the appellant and its supporting intervenors, with an emphasis on the distinction, allegedly the basis of the Thorson case, between a so-called regulatory statute and a declaratory one. The distinction, broadly taken, was sufficient to enable this Court to explain why in the Thorson case it was a proper exercise of discretion to accord standing to the appellant as a mere taxpayer seeking to challenge the validity of a federal statute. It was not a distinction that could be controlling, especially in the light of the reserve of discretion in the Court, and more espe­cially because the word or the term "regulatory" is not a term of art, not one susceptible of an invari­able meaning which would in all cases serve to distinguish those in which standing to a taxpayer or citizen would be granted and those in which it would not.

I think it important to distinguish what I would term the administrative law features of so-called regulatory legislation and the constitutionality of such legislation. Its pith and substance, in the latter aspect, may very well disclose a purpose which would be served by its administrative fea­tures but would not be limited by them. Thus, the fact that certain persons or classes of persons, or certain activities in which persons engage may be subjected to compulsory regulation on pain of a penalty or other sanction does not always mean that the pith and substance of the legislation is to be determined only in that context, so as to make those regulated the only persons with a real stake in the validity of the legislation.

The Theatres and Amusements Act, whose con­stitutional validity is challenged by the respondent, is a good illustration of this point. The Act provides for the appointment of a Board empowered

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by s. 3(2)(a)(b) to permit or prohibit the use or exhibition in Nova Scotia or in any part or parts thereof for public entertainment of any film or any performance (defined to include, inter alia, theat­rical, musical or moving picture performance for public entertainment) in any theatre. Provision is made for the promulgation of licensing regulations in respect of theatres and film exchanges and in respect of theatre performances as well as in respect of cinematograph operators and appren­tices. Regulations are envisaged in respect of the exhibition, sale, lease and exchange of films. No film exchange may sell, lease, rent, exchange or exhibit any film without first obtaining a licence from the Board. Moreover, the Board may require any film exchange to submit statements showing the names or other description of films proposed to be distributed. It is given unfettered discretion to suspend or revoke any licence. The statutory provi­sions are reinforced by regulations, especially in respect of licence requirements, and they make clear the complete power of the Board over the showing of films, even to the point of being empowered to confiscate films exhibited without a previous certificate. The statute prescribes a mone­tary penalty for breach of the Act or regulations, but, of course, the real sanction lies in the effective control of the Board over the exhibition of films and over theatres in the province.

There is no doubt that film exchanges, theatre owners and cinematograph operators and appren­tices are directly regulated by the Act and regula­tions. This matter was examined by Hart J. who agreed that the film exchanges and theatre owners would be entitled to take proceedings in respect of the legislation that so directly affects them but he was also of opinion that (in his words) "the film exchanges and the theatre owners would not have an interest similar to that of the members of the public and there could be a large number of persons with a valid desire to challenge the prohibitory aspects of the legislation who have no vehicle through which to effect their purpose unless granted standing before the Court."

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In the Appeal Division, Macdonald J. A. speak­ing for the Court aptly stated that "the factual situation has some relevancy to the determination of this question [of standing]". I would add to his extensive reference to the facts which led to the challenge to the legislation the situation which the statute itself appears to present, namely, one where joined to a regulatory scheme applicable to a manageable group of entrepreneurs in the theatre and film distribution businesses there is as well, and as a central piece, an apparently unlimit­ed power in the Board to determine what members of the public may view in theatres or other places of public entertainment.

Since the issue of validity does not fall for determination here and, indeed, has not even been argued in relation to the question of standing, I would not, in this case, go beyond the tentative conclusion that there is an arguable case under the terms of the challenged legislation that members of the Nova Scotia public are directly affected in what they may view in a Nova Scotia theatre, albeit there is a more direct effect on the business enterprises which are regulated by the legislation. The challenged legislation does not appear to me to be legislation directed only to the regulation of operators and film distributors. It strikes at the members of the public in one of its central aspects.

In my view, this is enough, in the light of the fact that there appears to be no other way, practi­cally speaking, to subject the challenged Act to judicial review, to support the claim of the respondent to have the discretion of the Court exercised in his favour to give him standing. I would dismiss the appeal with costs against the appellant. There will be no costs to or against any of the intervenors.

Appeal dismissed with costs.

Solicitor for the appellants: Bruce J. Preeper, Halifax.

Solicitor for the respondent: Robert Murrant, Dartmouth.