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15. The imposition of punishment by fine, penalty, or imprisonment for enforcing any law of the Province made in relation to any matter coming within any of the classes of subjects enumerated in
this section. This sub-section was required in order to round up the sphere of authority of the provinces and make the legislative and executive departments, beyond doubt, coterminous. By it, moreover, that power to “sanction ". its. enactments without which law is but a brutum fulmen, is placed within the hands of provincial legislatures. Subject to the anomaly perpetrated by section 96, the provinces have control to the farthest bounds over the execution of provincial laws.
In the notes to the last sub-section (14), the authorities were collected which have now clearly established that the matters covered by this sub-section are not " criminal” in the sense of sub-section 27 of section 91, but “must remain civil matters within what is here the true meaning of these respective terms"; and the procedure necessary to enforce punishment for breach of any provincial law is procedure in a "civil" matter.
But, by whatever name called, the body of laws passed under the authority of this sub-section must necessarily present features closely resentbling the ordinary criminal law as it is to be found in the Dominion statute books, and because this fact is the one most prominent in Reg. v. Wason (1), we have left that case to be noted here rather than under sub-section 13, although, as will appear, the decision of the Court of Appeal for Ontario was unanimously to the effect that the provincial legislation there impugned was legislation as to “property and civil rights." The statute in question was entitled “An Act to protect
(1) 17 0. A. R. 221.
against frauds in the supplying of milk to cheese or butter manufactories,” and by its first section it provided that “no person shall knowingly and wilfully” supply diluted, adulterated, or skimmed milked to a cheese or butter manufactory without notifying the owner or manager of such dilution, etc., under a penalty as provided in the Act. The Divisional Court of the Queen's Bench Division declared the Act ultra vires, on the ground, as put by Armour, C.J., that “the primary object of the Act is to create new offences and to punish them by fine, and, in default of payment, by imprisonment, and this is its true nature and character.” Mr. Justice Street dissented, and his view was adopted by the Court of Appeal. He says in his judgment:
"Is it an Act constituting a new crime for the purpose of punishing that crime in the interest of public morality? Or is it an Act for the regulation of the dealings and rights of cheesemakers and their patrons, with punishments imposed for the protection of the former ? If it is found to come under the former head, I think it is bad as dealing with criminal law; if under the latter, I think it is good as an exercise of the rights conferred on the. province by the 92nd section of the B. N. A. Act. An examination of the Act satisfies me that the latter is its true object, intention and character."
It may now, therefore, be taken, so far as the courts of Ontario are concerned, that the criterion here suggested is to be our guide in determining this question in any given
As will have been noticed, the difference in opinion which existed in the Queen's Bench was as to the primary object of the Act there impugned, the majority of the court answering Mr. Justice Street's questions in the reverse way.
It would appear, therefore, that, as Mr. Justice Osler puts it, “ Thou shalt not” is not necessarily "criminal” legislation within the meaning of the B. N. A. Act.
“ The legislature when really dealing with property and civil rights must have power to say thou shalt' or 'thou shalt not,:
and, as the breach of the legislative command is always, in one sense, an offence, the line between what may, and what may not be lawfully prescribed without touching upon criminal law is sometimes difficult to ascertain, and may shift according to cir. cumstances.
The criminal law, so far as regards human legislation, in its ultimate object, even when dealing with public order, safety, or morals, is chiefly concerned with preventing and punishing the violation of personal rights and rights respecting property, and hence, in a very wide sense, with property and civil rights. But while in this sense, and in making provisions applicable to the community at large, whether we speak of all the confederated provinces or of one, the right to legislate rests with parliament, I do not see how the right can be denied to the provincial assemblies to legislate for the better protection of the rights of property by preventing fraud in relation to contracts or dealings in a particular business or trade, or upon other subjects coming within section 92, and to punish the infraction of the law in a suitable manner, so long, at all events, as parliament has not occupied the precise field; for I suppose it will not be denied that the latter may draw into the domain of criminal law an act which has hitherto been punishable only under a provincial statute : Hodge v. The Queen, 9 App. Cas. at p. 131. But if a particular species of fraud has not been converted into a crime by Dominion legislation, I think that the local legislature must be at liberty to deal with it for the better protection of the class of persons immediately affected by it.”
We have quoted this passage at length, because it expresses views in relation to the question of “concurrent” powers which go far to support what we have ventured to lay down in chapter X. (ante, p. 213, et seq.) upon this vexed question.
Having held the Act intra vires, the Court of Appeal decided without hesitation that the procedure laid down for its enforcement was procedure in a civil matter within the meaning of sub-section 14 of section 92.
To the like effect, the full Court of Queen's Bench, in Manitoba, in Queen v. Robertson (m), held that laws relating to
(m) 3 Man. L. R. 613. This case is noted more fully under the next
the killing and possession of game at certain seasons of the year, are laws relating to property and civil rights. Reference is made to the works of Blackstone and other old writers as showing that the taking of animals ferce naturce is an ordinary right which, in the absence of legislation, any citizen possesses; and therefore that laws curtailing such rights are laws relating to civil rights in the province, within the meaning of this sub-section.
The query in Regina v. Boardman (n), as to the power of a provincial assembly to pass a general law in reference to th punishment to be meted out for violation of provincial laws, is now answered in favor of the power-so far at all events as the authority of the Court of Appeal for Ontario extends—by the decision of that tribunal in Attorney-General (Canada) v. Attorney-General (Ont.) (0). It would seem also to be covered by the principle of Hodge v. The Queen (p), applied a fortiori.
However, as late as July, 1890, Mr. Justice Wurtele, of the Quebec Superior Court, held, in Tarte v. Béique (9), that a provincial legislature, for enforcing a law made by it, must enact a special fine or imprisonment, and cannot confer the power on any person or body of persons to determine what penalty shall be incurred by a violation of such law. But this seems to be qualified by a remark, made later, that the legislature has no power to decree that the punishment of an offender shall be at the discretion of the court before which he may be tried. No reference is made in the judgment to the doctrine enunciated in Queen v. Burah, and the other cases, particularly Hodge v. The
(n) 30 U.C.Q. B. 553 ; see ante, p. 410.
(g) 6 Mont. L. R. 289. It was also held in this case that a commission of inquiry issued by a Lieutenant-Governor in Council, under a provincial statute, is not a judicial tribunal, and does not possess any inherent power to commit for contempt.
Queen (r), which support the doctrine of “plenary powers”; and it is difficult in view of these authorities to acquiesce in the correctness of this decision.
In Bennett v. The Pharmaceutical Association (s), it was held by Chief Justice Dorion, that the provisions of the Quebec Pharmacy Act, 1875, appropriating fines imposed for breaches of that Act to the respondent corporation, was intra vires :
“It can direct that a portion or the whole of it shall be for the benefit of the prosecutor, or of a municipal or other corpora tion, just as it distributes the provincial revenue, in any manner it may
choose to direct. It had the same power to enact that the fines levied under the Act should be for the benefit of the society respondent as it would have, after receiving the fines as part of the provincial revenue, to order that the amount should be paid back to the society for the objects of its incorporation.” a decision which is in agreement with the later decision of the Court of Appeal for Ontario in the case above noted (t), in which general legislation authorizing the LieutenantGovernor in Council to remit fines, etc., if thought proper, was upheld.
In the province of Quebec conflicting decisions were given in certain cases which came before the Courts of that province in 1871-3. Mr. Justice Drummond held (u) that the local legislature could not authorize punishment by both fine and imprisonment, and in this view he was followed by Mr. Justice Torrance (v). In Paige v. Griffith (w), Mr. Justice Sanborn declined to follow the earlier cases, and construed the word “or” as being cumulative. In Blouin v. Quebec (x), Chief Justice Meredith intimated his agree
(r) See ante, p. 177, et seq.