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A general perspective of Canadian constitutional interpretation as illustrated by the criminal law power Knight, William Harwood 1967

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A GENERAL PERSPECTIVE OF CANADIAN CONSTITUTIONAL INTERPRETATION AS ILLUSTRATED BY THE CRIMINAL LAW POWER by WILLIAM HARWOOD KNIGHT LL.B.(Honours), University of Sydney, 1966 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS i n the Department of LAW We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA A p r i l , 1967 In presenting this thesis in pa r t i a l fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that che Library shall make i t freely available for reference and study,, I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the Head of my Department or by his representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of Lcui. The University of B r i t i s h Columbia Vancouver 8,'. Canada Date i ABSTRACT 'A GENERAL PERSPECTIVE OF CANADIAN CONSTITUTIONAL  INTERPRETATION AS ILLUSTRATED BY THE CRIMINAL LAW POWER' The thesis i s divided intofour sections. The f i r s t section lays down a method of interpretation of S.91 and S.92 of the B.N.A. Act. The suggested method i s comprised of making three enquiries:- Is the statute i n question within S.92 i s the statute within a S.91 enumerated power and i s the statute within the residuary general power? The v a l i d i t y of th i s method rests on four propositions v i z : - S.91 comprises the residue of powers after the pro vinces have been given certain basic heads of powers; the enumerated powers i n S.91 are supreme over those contained i n S.92; where the subject matter of the statute i n question goes beyond l o c a l or p r o v i n c i a l concern or int e r e s t i t w i l l f a l l within the general federal power under S.91 even though i t might otherwise appear to come within S.92; where neither S.92 nor S.91 enumerated powers apply the statute i n question f a l l s under the residuary federal power i n S.91. Each one of these propositions i s examined and supported. The second section deals with the general rules of construction of the powers i n S.91 and S.92. The matter i s approached from the idea of a dichotomy between factors and formulae i n c o n s t i t u t i o n a l i n t e r p r e t a t i o n . The factors are those matters that guide the court i n answering the questions posed i n the f i r s t section and the formulae are the rationales given for the decisions. This approach i s inseverably connected with the concept of c o n s t i t u t i o n a l decisions being evaluative judgments. The evaluative judgment made i n answering the o r i g i n a l questions i s referred to as the 'nexus' judgment. The place of precedent, evidence and e x t r i n s i c material i n r e l a t i o n to the factors i s then examined and the general ideas prevalent i n Canadian con s t i t u t i o n a l interpretation such as the double aspect, a n c i l l a r y , trenching, paramountcy and s e v e r a b i l i t y doctrines are looked at i n the l i g h t of t h i s 'nexus' judgment. The strength and i d e n t i t y of the factors w i l l vary from i n d i v i d u a l power to power and the criminal law power i s adopted as an i l l u s t r a t i o n of the use of the f a c t o r i a l approach. This i l l u s t r a t i v e use comprises the t h i r d section of the thesis. The lack of l o g i c a l l i m i t s to the power i s f i r s t shown and then the general factors of construction, purpose and eff e c t are used to provide a basis for c o n s t i t u t i o n a l prediction. The evaluation of factors i s viewed both from the standpoint of federal l e g i s l a t i o n and that of the provinces. No attempt i s made to give an exhaustive survey of the interpretation of the criminal law power. I t i s merely given as an i l l u s t r a t i o n of the use of the f a c t o r i a l approach. The f i n a l section i s the conclusion and recapitulates the major p r i n c i p l e s contained i n the e a r l i e r sections. TABLE OF CONTENTS Introduction page 1 Section I . Method of Interpretation page 1 Section I I . General P r i n c i p l e s of Construction ; page 25 Section I I I . Factors i n Interpreting the Criminal Law Power page 72 Section IV. Conclusion page 100 Bibliography page 103 Table of Cases Cited page 105 1. In any federation based on a written d i v i s i o n of powers the method of interpretation i s going to assume a prominent pos i t i o n i n the construction of the co n s t i t u t i o n . This p o s i t i o n w i l l be more quickly reached where a system of stare decisis p r e v a i l s . Accordingly i t i s intended to look at a method by which meaning can be given to the d i v i s i o n of powers i n Canada. Subsequently the general p r i n c i p l e s inside t h i s method w i l l be examined and f i n a l l y the criminal law power w i l l be used an an example of the p a r t i c u l a r canons of interpretation here advanced. I t i s important to r e a l i z e at the outset that the treatment of the criminal law power i s not intended to be exhaustive but merely i l l u s t r a t i v e . I. METHOD OF INTERPRETATION Viewed a n a l y t i c a l l y there are three parts of S.91 of the B r i t i s h North America Act 1867 as amended, that serve as indicators to a consistent methodology. The f i r s t of these indicators i s the opening words of S.91: " I t s h a l l be lawful for the Queen, by and with the Advice and Consent of the Senate and the House of Commons to make laws for the Peace, Order and Good Government of Canada i n r e l a t i o n to a l l matters not coming within the Classes of Subjects by th i s Act assigned exclusively to the Legislatures of the 2. Provinces 11. Ex f a c i e t h i s provision implies that the method of interpreting the federal parliament's powers s h a l l be to interpret f u l l y the exclusive powers of the Provinces and allow the residue of powers to f a l l to the federal parliament. However the f i r s t indicator i s succeeded immediately by the words: "and for greater Certainty, but not so as to r e s t r i c t the generality of the foregoing terms of t h i s Section, i t i s hereby declared that (notwithstanding anything i n this Act) the exclusive L e g i s l a t i v e Authority of the Parliament of Canada extends to a l l matters coming within the Classes of Subjects next hereinafter enumerated; that i s to say 11. Now t h i s portion of S.91 i s pointing to a method of interpretation whereby one f i r s t f u l l y interprets the enumerated powers and then looks elsewhere for the p r o v i n c i a l powers. The second indicator then i s diametrically opposed to the f i r s t . The t h i r d indicator i s the closing words of S.91: "And any Matter coming within any of the Classes of Subjects enumerated i n t h i s Section s h a l l not be deemed to come within the Class of Matters of a l o c a l or private Nature comprised i n the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces." Regardless of whether one holds as the 3. J u d i c i a l Committee of the P r i v y Council held i n A-G for  Ontario v. A-G for Canada-*- that the paragraph applies to a l l S.92 powers and not only to S.92(16) i t also supports a method of f u l l i nterpretation of federal powers before considering those of the provinces. Thus the Act i t s e l f suggests a method of construction whereby one would f u l l y interpret the enumerated powers i n S.91 before considering any p r o v i n c i a l powers. This follows from the second and t h i r d i n d icators. The general federal power contained i n S.91 i s not included as i t i s postponed to S.92 because neither the second nor the t h i r d indicator applies to i t . 2 The next step suggested by the indicators would be to interpret the powers i n S.92 given to the provinces, having regard only to the enumerated federal powers i n S.91. This stems from the word 'exclusively' i n S.92 and the f i r s t indicator which would make the S.92 powers f i r s t i n p r i o r i t y but for the second and t h i r d i n d icators. The f i n a l step would be to f u l l y interpret 1 Q.89C] A.C. 348 (Local Prohibitions Case) . 2 This i s not to suggest that the 31 enumerated powers i n S.91 are to be regarded as sources of federal power additional to the opening words of the section but rather that the portion of the federal power comprised i n the enumerations i s d i f f e r e n t i n i t s r e l a t i o n to S.92 powers than the residue of the federal power which for convenience i s termed hereafter the residuary federal power. 4. the residuary federal power contained i n the opening words of S.91 having regard to the enumerated powers i n both S.91 and S.92. Such a method of interpretation w h i l s t implied from the terms of the Act i s fraught with p r a c t i c a l d i f f i c u l t i e s . These d i f f i c u l t i e s were alluded to i n Citizens Insurance Co.  v. Parsons-^ where the P r i v y Council stated^ "Notwithstanding t h i s endeavour ( i . e . : the non obstante clause i n S.91) to give pre-eminence to the Dominion Parliament i n cases of a c o n f l i c t of powers i t i s obvious that i n some cases where th i s apparent c o n f l i c t exists the (Imperial) l e g i s l a t u r e could not have intended that the powers exclusively assigned to the p r o v i n c i a l l e g i s l a t u r e s should be absorbed i n those given to the Dominion Parliament. Take as one instance the subject 'marriage and divorce' contained i n the enumeration of subjects i n S.91; i t i s evident that solemnization of marriage would come within t h i s general description; yet 'solemnization of marriage i n the province' i s enumerated among the classes of subjects i n S.92 and no one can doubt notwithstanding the general language of S.91, that t h i s subject i s s t i l l within the exclusive authority of the 3 (1881) 7 App. Cas. 96. 4 i b i d p. 108. 5. le g i s l a t u r e s of the provinces. So 'the r a i s i n g of money by any mode or system of taxation' i s enumerated amongst the classes of subjects i n S.91; but, though the description i s s u f f i c i e n t l y large and general to include 'direct taxation within the province i n order to the r a i s i n g of a revenue for p r o v i n c i a l purposes' assigned to the p r o v i n c i a l l e g i s l a t u r e s by S.92, i t obviously could not have been intended that i n this instance also, the general power should override the pa r t i c u l a r one." Thus i t i s not possible to f u l l y interpret the enumerated powers i n S.91 without paying regard to S.92 powers and s t i l l give some effe c t to each of the powers i n the l a t t e r section. The Pri v y Council i n Parsons Case^ having perceived the d i f f i c u l t y and asserted that the two sections should be read together went further and l a i d down a method of interpretation of the two groups of powers. "The f i r s t question to be decided," i t said, " i s whether the Act impeached i n the present appeal f a l l s w ithin any of the classes of subjects enumerated i n S.92, and assigned exclusively to the leg i s l a t u r e s of the provinces, for i f i t does not, i t can be of no v a l i d i t y , and no other question would then a r i s e . I t i s only when an Act of the p r o v i n c i a l 5 i b i d . 6. l e g i s l a t u r e prima facie f a l l s within one of these classes of subjects that the further questions a r i s e , v i z : whether, notwithstanding t h i s i s so, the subject of the Act, does not also f a l l w ithin one of the enumerated classes i n S.91 and whether the power of the p r o v i n c i a l l e g i s l a t u r e i s or i s not thereby o v e r b o r n e . T h i s concept of interpretation was expressly adopted and applied i n Russell v. The Queen7 and Toronto E l e c t r i c Commissioners v. Snider.^ The p r a c t i c a l d i f f i c u l t y and the authority of the three P r i v y Council decisions force the scheme or method of in t e r p r e t a t i o n drawn from the indicators i n the Act i t s e l f to be amended. The modified method of interpretation would be to f i r s t l y f u l l y interpret the S.92 powers and secondly to interpret the enumerated powers i n S.91 having regard to the S.92 powers. F i n a l l y the residuary federal power would need to be interpreted having regard to both S.92 and S.91 enumerated powers. This method which applies to both federal and p r o v i n c i a l l e g i s l a t i o n and involves asking three questions was l a i d down by Viscount Haldane i n 6 i b i d p. 109. 7 (1882) 7 App. Cas. 829. 8 Q.9253 A.C. 396. 7. Snider's Case.9 The mode of application i s : - Is the statute i n question within one of the powers i n S.92? I f i t i s not then i t can only be passed by the federal parliament either under one of the enumerated heads of power i n S.91 or under the residuary federal power. This r e s u l t follows from the o v e r a l l residuary character of S.91. I f i t i s a federal statute that i s being considered i t w i l l be necessary to decide under which branch of S.91 i t was passed. This i s achieved by construing the S.91 enumerated powers. I f the statute i s not under one of them i t w i l l f a l l w ithin the residuary federal power. Where the statute i n question i s prima facie within a S.92 power i t i s presumed that i t can only be passed by a p r o v i n c i a l l e g i s l a t u r e . This flows from the word 'exclusively' i n S.92. The presumption can be rebutted by either the enumerated heads of power i n S.91 or by the application of the residuary power i n S.91. In order to ascertain whether the presumption i s rebutted by one of the enumerated heads of power i n S.91 i t i s necessary to ask the second question v i z : - Is the statute within one of the enumerated heads of power i n S.91? I f i t i s then because of the second and t h i r d indicators the presumption i s rebutted and the statute 9 i b i d p.406. 8. can only be passed by the federal parliament. In determining the answer to this question however the existence of a narrower S.92 power must give r i s e to the implication that the Imperial parliament did not intend i t to be absorbed by a wider S.91 power and hence the S.91 power should be interpreted so as not to include the narrower S.92 power. I f the S.91 enumerated powers do not apply the t h i r d question must be asked v i z : - Is the statute i n question within the residuary federal power under S.91? The answer to this question w i l l depend on whether the subject matter of the l e g i s l a t i o n goes beyond matters of mere l o c a l or p r o v i n c i a l concern. I f the statute i s within the federal residuary power i t must be passed by the federal parliament as the presumption i n favour of the p r o v i n c i a l power i s again overruled. This method of interpretation i s structured upon the accuracy of four propositions^ " f i r s t l y , that S.91 comprises the residue of powers after the provinces have been given ce r t a i n basic heads of powers. This proposition i s necessary as the j u s t i f i c a t i o n for looking to S.92 before S.91 and for the concept that i f the statute does not f a l l within a S.92 power i t must ex hypothesi be passed by the federal parliament to be i n t r a v i r e s . I t i s clear from the phrasing of the Act that S.91 i s a residuary clause as i t gives the 9. power to make laws i n r e l a t i o n to a l l matters not coming within the classes of subjects assigned exclusively to the l e g i s l a t u r e s of the provinces. The P r i v y Council recognized th i s i n Citizens Insurance Co. v. Parsons^-0 where i t stated^-*- "the scheme of this l e g i s l a t i o n expressed i n the f i r s t branch of S.91 i s to give the Dominion Parliament authority to make laws for the good government of Canada i n a l l matters not coming within the classes of subjects assigned exclusively to the p r o v i n c i a l l e g i s l a t u r e . " The second proposition i s that the enumerated powers under S.91 are supreme over those contained i n S.92. This proposition substantiates the affirmative answer to the f i r s t question as rebutting the presumption i n favour of p r o v i n c i a l competence. I f i t was not correct then the fact that the statute i n question came under a S.91 enumerated power would not give the authority to enact i t to the federal parliament i f i t also came within a S.92 power. The cases c l e a r l y e s t a b l i s h the supremacy of S.91 enumerated powers. Thus i n Tennant v. Union Bank of Canada^ the p l a i n t i f f was suing for damages for the conversion of some 10 op. c i t . 11 i b i d p. 107. 12 0-894] A.C. 31. 10. timber that was under certain warehouse receipt s . These receipts were made out by a firm to i t s e l f and endorsed to the defendant as security for advances. The firm became insolvent and the assignee of i t s estate sued the defendants who had taken possession of the timber. Recovery depended on the ef f e c t of the Bank Act and whether that Act was i n t r a v i r e s the Dominion parliament. The Pr i v y Council advised that the Bank Act was a good defence and then considered i t s c o n s t i t u t i o n a l v a l i d i t y . The appellant argued that S.92(13) gave the exclusive r i g h t to make laws i n r e l a t i o n to property and c i v i l r i g h t s i n the province to each p r o v i n c i a l l e g i s l a t u r e and therefore despite S.91(15) which declared that the Le g i s l a t i v e Authority of the Parliament of Canada extended to Banking, Incorporation of Banks and the issue of paper money, the parliament of the Dominion could not v a l i d l y enact the Bank Act as i t affected property and c i v i l r i g h t s i n the Province. The Pr i v y Council dismissed t h i s contention and upheld the v a l i d i t y of the Act. Lord Watson i n del i v e r i n g the tribunal's advice s t a t e d ^ "The objection taken by the appellant would be unanswerable i f i t could be shown that by the Act of 1867 the Parliament of Canada i s absolutely debarred from trenching to any extent upon the matters 13 i b i d p. 45. 11. assigned to the p r o v i n c i a l l e g i s l a t u r e s by S.92. But S.91 expressly declares that 'notwithstanding anything i n this Act' the exclusive l e g i s l a t i v e authority of the Parliament of Canada s h a l l extend to a l l matters coming within the enumerated classes; which p l a i n l y indicates that the l e g i s l a t i o n of that Parliament so long as i t s t r i c t l y relates to those matters i s to be of paramount authority. To refuse ef f e c t to the declaration would render negatory some of the l e g i s l a t i v e powers s p e c i a l l y assigned to the Canadian parliament. For example among the enumerated classes of subjects i n S.91 are 'Patents of Invention and Discovery' and 'Copyrights'. I t would be p r a c t i c a l l y impossible for the Dominion Parliament to l e g i s l a t e upon either of these subjects without a f f e c t i n g the property and c i v i l r i g h t s of individuals i n the provinces." Subsequently t h i s case and Cushing v. Dupuy^-^ which had established the same p r i n c i p l e were adopted i n the Fis h Canneries Case^ where Lord Tomlin l a i d down four propositions of i n t e r p r e t a t i o n of the B.N.A. Act. The f i r s t of these was:-I 6 "the l e g i s l a t i o n of the Parliament of the Dominion so long as 14 5 App. Cas. 409. 15 A-G Can, v. A-G B.C. 0-93(7] A.C. 111. 16 i b i d p. 118. 12. i t s t r i c t l y relates to subjects of l e g i s l a t i o n expressly enumerated i n S.91 i s of paramount authority even though i t trenches upon matters assigned to the p r o v i n c i a l l e g i s l a t u r e s by S.92." This p r i n c i p l e was expressly adopted as good law i n In Re Aeronautics Reference^; In Re S i l v e r Brothers 1^ and i n C.P.R. v. A-G B.C. 1 9 Whilst the authority of these decisions establishes the p r i n c i p l e that the enumerated powers i n S.91 override those i n S.92 th i s does not imply that i n determining whether a pa r t i c u l a r statute f a l l s within a S.91 power no regard should be paid to the fact that i t also f a l l s within a S.92 power. As was pointed out i n Parsons Case^O the sections must be read together and i n certain cases, notably marriage and divorce, the S.91 power must be taken not to include the narrower power bestowed on the p r o v i n c i a l l e g i s l a t u r e . The t h i r d proposition i s that where the subject matter of the statute i n question goes beyond l o c a l or p r o v i n c i a l concern or in t e r e s t i t w i l l f a l l within the residuary federal power under S.91 even though i t might otherwise 17 Q 9 3 3 A.C. 54. 18 D.9323 A.C. 514 19 0-95(0 A.C. 122. 20 op. c i t . and see i n f r a . 13. appear to come within S.92. This proposition i s the basis of the t h i r d question. In A-G for Ontario v. Canada  Temperance Fe d e r a t i o n 2 1 Viscount Simon d e c l a r e d 2 2 "the true test must be found i n the r e a l subject matter of the l e g i s l a t i o n ; i f i t i s such that i t goes beyond l o c a l or p r o v i n c i a l concern or interests and must from i t s inherent nature be the concern of the Dominion as a whole .... then i t w i l l f a l l within the competence of the Dominion Parliament as a matter a f f e c t i n g the peace order and good government of Canada, though i t may i n another aspect touch upon matters s p e c i a l l y reserved to the P r o v i n c i a l Legislatures." I t has been assumed2-^ that this decision i s a departure from the e a r l i e r views of the Pr i v y Council. However when the previous cases are examined i t i s apparent that t h i s decision i s merely a restatement of a p r i n c i p l e rather than a new departure. In Russell v. The Queen2^ the Pri v y Council l a i d down that where a federal Act f e l l w ithin the residuary power of the Dominion i t was not rendered u l t r a v i r e s by 21 [1946] A.C. 193. 22 i b i d p. 205. 23 e.g. - B. Laskin - Book - "Canadian Constitutional Law" 3rd E d i t i o n , pages 269 and 270. 24 op. c i t . 14. reason of i t s i n c i d e n t a l l y a f f e c t i n g a S.92 power. Later i n the Local P r o h i b i t i o n s " C a s e ^ i t was stated that there would be matters under S.91 that were not within the enumerated classes i n that section and that Acts passed under th i s residuary power could not encroach upon the S.92 powers of the p r o v i n c i a l l e g i s l a t u r e s . However Lord Watson who delivered the judgment went on to say that the P r i v y Council recognized that some matters i n o r i g i n l o c a l or p r o v i n c i a l might a t t a i n such dimensions as to j u s t i f y federal l e g i s l a t i o n under residuary power. The r e s u l t then of the cases p r i o r to 1916 was that as a general rul e the residuary federal power could not encroach on the S.92 powers but as an exception to th i s general r u l e where the matter attained c e r t a i n national dimensions i t could be the subject of federal l e g i s l a t i o n even though i t was o r i g i n a l l y within the p r o v i n c i a l power under S.92. In 1916 i n the Insurance Reference^ the P r i v y Council recognized this general r u l e as follows--27 "the i n i t i a l part of S.91 of the B r i t i s h North America Act .... does not 25 op. c i t . 26 A-G Can, v. A-G A l t a . \j-9lQ 1 A.C. 588. 27 i b i d p. 595. 15. unless the subject matter of l e g i s l a t i o n f a l l s within one of the enumerated heads which follow enable the Dominion parliament to trench on the subject matters entrusted to the provinces by the enumeration i n S.92." However the Court went on to say that the only exception to the rul e that the federal parliament cannot e f f e c t i v e l y l e g i s l a t e for the provinces under the residuary power was where the subject matter was not within one of the S.92 powers. Russell v. The Queen^ w a s explained on t h i s basis. Hence after the Insurance Reference^ there was no doubt as to the general rul e but considerable question as to the existence of the exception. The succeeding cases of Fort Francis Pulp & Power Co. Ltd.  v. Manitoba Free Pressed and Toronto E l e c t r i c Commissioners  v. Snider-^ 1 saw the r e s u s c i t a t i o n of the exception to the general r u l e under a d i f f e r e n t formulation. The p r i n c i p l e l a i d down i n these decisions was that i n cases of emergency the Dominion parliament could l e g i s l a t e under i t s residuary power even though i t encroached on the S.92 powers of the 28 op. c i t . 29 op. c i t . 30 Q.9233 A.C. 695. 31 op. c i t . 16. provinces. Under t h i s formulation of the exception intem perance i n 1881 was held to have been regarded as a national emergency and Russell's Case^ 2 was explained on t h i s ground. Despite c r i t i c i s m ^ the emergency doctrine as the basis for the exception to the general r u l e remained extant u n t i l 1946. The general rule and the exception were stated by Lord Tomlin i n the F i s h Canneries Case-^ as the second of his four propositions thus:- "the general power of l e g i s l a t i o n conferred upon the Parliament of the Dominion by S.91 of the Act i n supplement of the power to l e g i s l a t e upon the subjects expressly enumerated must be s t r i c t l y confined to such matters as are unquestionably of national interest and importance and must not trench on any of the subjects enumerated i n S.92 as within the scope of p r o v i n c i a l l e g i s l a t i o n , unless these matters have attained such d i  mensions as to a f f e c t the body p o l i t i c of the Dominion."35 I t i s i n t e r e s t i n g to note that Lord Tomlin preferred Lord Watson's description of the exception to that of 32 op. c i t . 33 vide for example Anglin C.J. i n The King v. Eastern  Terminal Elevator Co. Q.9253 S.C.R. 434 at 438. 34 op. c i t . 35 i b i d . p. 118. 17. Viscount Haldane i n the 'emergency' cases. This statement of Lord Tomlin's was approved i n the Aeronautics Reference3^* i n In Re S i l v e r B r o s . 3 7 and i n C.P.R. v. A-G B.C.3** The emergency doctrine was repudiated i n A-G Ontario  v. Canada Temperance Federation 3^ and the dimensions rationale of the exception revived i n a modified form. In th i s case a sim i l a r statute to that upheld i n Russell's Case^Q was under attack and Viscount Simon i n del i v e r i n g the Pr i v y Council's advice, after denying that the existence of an emergency gave "power to the Dominion parliament to l e g i s l a t e i n matters which are properly to be regarded as exclusively within the competence of the P r o v i n c i a l Legislatures, " ^ went on to hold that "the true test must be found i n the r e a l subject matter of the l e g i s l a t i o n : i f i t i s such that i t goes beyond l o c a l or p r o v i n c i a l concern or interests and must from i t s inherent nature be the concern of the Dominion as a whole (as for example i n the Aeronautics Case and the Radio Case) then i t w i l l f a l l within the competence 36 op. c i t . 37 op. c i t . 38 op. c i t . 39 op. c i t . 40 op. c i t . 41 i b i d p. 205. 18. of the Dominion Parliament as a matter a f f e c t i n g the peace, order and good government of Canada, though i t may i n another aspect touch upon matters s p e c i a l l y reserved to the P r o v i n c i a l Legislatures."42 The emergency doctrine however was not yet dead as i n Japanese-Canadians v. A-G Canada43 Lord Wright said44 "the Parliament of the Dominion i n a s u f f i c i e n t l y great emergency such as that a r i s i n g out of war, has power to deal adequately with that emergency for the safety of the Dominion as a whole." Nevertheless the statement of Viscount Simon i n the Canada Temperance Case^ has received l a t e r j u d i c i a l approval46 a n d must now be taken to represent good law. On one point the statement i s misleading and thi s has caused d i f f i c u l t i e s . Viscount Simon c i t e d as examples of statutes where the subject matter of the l e g i s l a t i o n was beyond mere l o c a l or p r o v i n c i a l concern and therefore within federal parliament's residuary power the Aeronautics Case47 42 i b i d p. 205. 43 [19473 A.C. 87. 44 i b i d p. 101. 45 op. c i t . 46 Johanneson v. West St. Paul [19523 1 S.C.R. 292; and Munro v. National Capital Commission (1966) 57 D.L.R. (2d) 753 at 759. 47 op. c i t . 19. and the Radio Case.48 Now the major ground for the former decision was that stated by Lord Atkin i n the Labour Conventions Case^ 9 v i z : - whether S.132 e n t i t l e d the federal government to implement treaty obligations even though they impinged on p r o v i n c i a l powers. In the Radio Case^O the basis for the decision was that stated by Lord Dunedin^l v i z : - l e g i s l a t i o n not f a l l i n g under either S.92 or the enumerated heads of S.91 must come within the federal residuary power. The po s i t i o n then would appear to be that as a general rule the residuary federal power under S.91 cannot encroach on matters f a l l i n g within S.92 powers. An example of the exercise of t h i s power i s where the subject matter of the l e g i s l a t i o n i s under neither the S.91 enumerations nor under S.92. To th i s general ru l e there i s an exception that i f the subject matter of any statute goes beyond mere l o c a l or p r o v i n c i a l concern i t w i l l f a l l within the residuary federal power even i f i t does f a l l within a S.92 power. The late F.P. Varcoe i n his book 'The Constitution of Canada'"^ asserts "The powers of Parliament are not to be 48 [1932] A.C. 304. 49 0.937] A.C. 326. 50 op. c i t . 51 i b i d p. 312. 52 2nd E d i t . 1965. 20. considered as f a l l i n g into two classes, f i r s t class and second cl a s s . The effect of the exercise of such powers must be regarded as uniform as regards paramountcy and exclusiveness."53 ^he learned author bases these comments on the fact that the S.91 enumerated powers are only examples of the matters i n r e l a t i o n to which the federal parliament can l e g i s l a t e under S.91. However such an interpretation w h i l s t v a l i d up to a point f a i l s to give ef f e c t to the 'non obstante clause 1. This clause purports to make a d i s t i n c t i o n between the residuary and the enumerated federal powers as i t gives to the l a t t e r a precedence over S.92 powers which the l a t t e r , except to the extent that the statute passed thereunder has a subject matter of national importance, does not enjoy. This difference has been e x p l i c i t l y recognized since the Local Prohibitions Case,54 and i s fundamental to the d i v i s i o n of the second and t h i r d questions i n the suggested method of analysis. I t should not be assumed however that Varcoe i s e n t i r e l y inaccurate and that the federal residuary power and the enumeration i n S.91 are each conferring l e g i s l a t i v e authority on the federal parliament. There i s only one source of federal power and 53 i b i d p. 18. 54 op. c i t . 21. that i s the opening words of S.91; the enumerations that follow are merely examples of matters included i n that one source of federal power. However the examples have a d i f f e r e n t r e l a t i o n to the S.92 powers than does the remaining portion of the federal power. I t i s to keep the d i s t i n c t i o n clear between a doctrine of two sources of federal power (which i s patently inaccurate) and a doctrine of one source but with d i f f e r e n t applications that the phrase 'residuary federal power' rather than 'general federal power' has been used here. A l l federal power i s 'general federal power' but some of that federal power i s i l l u s t r a t e d by the examples ( i . e . the S.91 enumerations) and the rest of i t i s residuary. Under this analysis cases f a l l i n g under the general rul e r e l a t i n g to non encroachment would come within the negative answer to the f i r s t question i n the general scheme whil s t those cases f a l l i n g within the exception would come within the affirmative answer to the t h i r d question. In other words the residuary federal power would have a twofold operation. F i r s t l y those statutes dealing with matters not within either S.92 or the enumerations i n S.91 and secondly those statutes on matters which prima facie are within S.92 but which because of thei r non l o c a l or p r o v i n c i a l concern cease to be caught under that section. Before turning to the fourth proposition i t i s opportune to note how the court 22. slurred around between the general ru l e of non encroachment and the exception i n Munro v. National Capital Commission^ In that case the question was whether the National Capital Act, 1958 was i n t r a v i r e s the federal parliament. The Supreme Court of Canada ci t e d with approval the statements of Viscount Maugham and Viscount Dunedin i n Reference Re the Debt Adjustment Act 1937-^ and Re Regulation and Control of Radio Communication.57 i n these statements the point was made that where the subject matter of any l e g i s l a t i o n i s not within the S.91 enumerated powers or S.92 i t f a l l s w i thin the residuary federal power. The court also approved the dictum of Viscount Simon i n the Canada Temperance Federation Case58 then proceeded to f i n d that the subject matter of the Act was not i n either S.92 or the S.91 enumerations and that i t went beyond l o c a l or p r o v i n c i a l concern. I t i s apparent that either approach would have given the same r e s u l t v i z : - that the statute was i n t r a vires, and the court f a i l e d to d i f f e r e n t i a t e between them or even admit that there were two grounds for i t s decision. 55 op. c i t . 56 0-9433 A.C. 356. 57 op. c i t . 58 op. c i t . 23. The fourth proposition i s that where neither S.92 nor the S.91 enumerated powers apply the statute i n question f a l l s under the residuary federal power i n S.91. This proposition i s connected with both the f i r s t and the t h i r d propositions e a r l i e r advanced. Under the suggested scheme of interpretation where S.92 does not apply and the statute which i s having i t s v a l i d i t y determined i s a federal statute, i t w i l l be necessary to determine whether i t was passed under one of the enumerated powers i n S.91 or under the residuary federal power. Once i t has been decided that S.91 enumerated powers do not apply i t follows l o g i c a l l y that the residuary federal power does so apply. That i s , assuming S.92 does not apply and therefore the statute i n question can only be passed by the federal parliament, i t must f a l l either within one of the S.91 examples or the residue of S.91 and i f the former p o s s i b i l i t y i s excluded then the authority for i t s enactment can only be the S.91 residue. This proposition i s supported by the d i c t a already mentioned of Viscount Maugham i n Reference Re the Debt  Adjustment Act 1937^9 a n d of Viscount Dunedin i n Re Regulation  and Control of Radio Communication. 6 0 In the f i r s t of these 59 op. c i t . 60 op. c i t . 24. the learned law lord said " I t must not be forgotten that where the subject matter of any l e g i s l a t i o n i s not within any of the enumerated heads of either S.91 or S.92, the sole power rests with the Dominion under the preliminary words of S.91 r e l a t i v e to ''Laws for the Peace, Order and Good Government of Canada"^1 w h i l s t i n the second instance the dictum was: "Being therefore not e x p l i c i t l y mentioned i n either S.91 or S.92 such l e g i s l a t i o n f a l l s within the general words at the opening of S.91, which assign to the Government of the Dominion the power to make laws ''for the Peace, Order and Good Government of Canada i n r e l a t i o n to a l l matters not coming within the Classes of Subjects by t h i s Act assigned exclusively to the Legislatures of the Provinces."62 Both these j u d i c i a l pronouncements were approved and adopted i n Munro v. National Capital Commission and can therefore be regarded as good law. Having established a method of i n t e r p r e t a t i o n of S.91 and S.92 of the B.N.A. Act i t i s now opportune to look at the general p r i n c i p l e s of construction that supply the means of answering the basic questions that comprise such method. 61 op. c i t p. 371. 62 op. c i t p. 312. 63 op. c i t p. 757. 25. I I . GENERAL PRINCIPLES OF CONSTRUCTION The courts have often stated that i n interpreting the S.91 and S.92 powers i t i s ess e n t i a l to look at the r e a l nature of the statute i n question. The expressions of thi s idea have been as varied as they have been numerous. Thus i n Russell v. The Queen1 and A-G Saskatchewan v. A-G Canada^ the Pr i v y Council talked of 'true nature and character of the l e g i s l a t i o n ' i n Union C o l l i e r y Ltd. v. Bryden^ i t was 'the whole p i t h and substance of the enactments' and i n Gold Seal Limited v. Dominion Express Co. and A-G A l t a * Duff J. referred to a d i s t i n c t i o n between l e g i s l a t i o n 'affecting' and l e g i s l a t i o n ' in r e l a t i o n to' matters i n the classes of powers. This d i s t i n c t i o n was subsequently applied i n Munro v. National Capital Commission^ These examples are capable of vast multiplication.6 1 op. c i t . 2 Q 9 4 3 A.C. 110, 3 Q899D A.C. 580. 4 (1921) 62 S.C.R. 424. 5 op. c i t . 6 vide e.g:- Lord. Atkin i n Ladore v. Bennett 1939 A.C. 468 at 482; Madden v. Nelson Q8993 A.C. 626 at 627. 26. However a l l these dicta are mere verbal formulae. By r e l y i n g on.them a lawyer i s not able to predict the outcome of any c o n s t i t u t i o n a l case except one on a l l fours with a previous decision. _ The vagueness of the language whilst permitting a r a t i o n a l i s a t i o n of decisions a s s i s t s not one whit i n trying to determine why a court came to a p a r t i c u l a r decision and, more importantly, what decision a future court w i l l be l i k e l y to come to on another statute. These formulae are masking an evaluative judgment. This judgment i s a decision as to whether a statute has or has not a s u f f i c i e n t l y close nexus with the power under which i t i s being j u s t i f i e d . This idea of nexu& i s structured on the basic tenet that i t i s wrong to say that there are c e r t a i n features of every statute that as a matter of l o g i c a l necessity force one to treat i t as f a l l i n g within a p a r t i c u l a r head of power, i . e : - there i s no necessary connection between the statute and the power i t i s not a process of deduction but of s e l e c t i o n . 7 The adoption of the general idea of nexus does not mean that the verbal formulae are redundant 7 This i s a si m i l a r p o s i t i o n to the American Legal R e a l i s t school of j u r i s p r u d e n t i a l thought. See J. Frank. "Law and the Modern Mind" 6th p r i n t i n g - 1949, and a r t i c l e by W.W. Cook, " S c i e n t i f i c Method and the Law" 13 American Bar Assoc. Journal 303. 27. and hence should be abandoned but only that the nexus should be determined and the formulae then selected to support the conclusion. That this process i s what c o n s t i t u t i o n a l courts i n a federal system already do either w i t t i n g l y or unwittingly i s c l e a r l y demonstrated by Lane i n "Some P r i n c i p l e s and Sources of Australian Constitutional Law".** Furthermore the dangers of placing a l i t e r a l i s t i c i n t e rpretation on the formulae are shown by Las k i n * when re f e r r i n g to the d i s t i n c t i o n drawn between consequential effects and l e g i s l a t i v e subject matter he says that " i f the d i s t i n c t i o n i s t r u l y one between purpose and e f f e c t , i t runs counter to other authority which holds that declared or asserted purpose w i l l not necessarily conclude the question of v a l i d i t y on the basis thereof" and he ci t e s A-G Man, v. A-G Can. 1 0 i n support of his proposition. In that case the P r i v y Council said, "The matter depends upon the ef f e c t of the l e g i s l a t i o n not i t s purpose."H This kind of blinkered approach turns attention from what the courts 8 1st E d i t i o n , Sydney, 1964. 9 B. Laskin - Book - op. c i t . at p. 91. 10 [19293 A.C. 260. 11 i b i d p. '268. The dictum was l a t e r approved by Cartwright J. i n A-G Can, v. Readers' Digest Assoc. (Canada) Ltd. Q.96Q S.C.R. 755 at 793. 28. are i n fact doing and constitutes too narrow a view of the ef f e c t of both the cases dealing with purpose and those dealing with e f f e c t , i . e : i t i s a n a l y t i c a l i n an area where pragmatism i s required.12 Nevertheless i f one debunks the formulae on the basis of lack of p r e d i c t a b i l i t y i t i s not s u f f i c i e n t to simply state that i t masks an evaluative judgment. One must go further and provide some basis for predicting the outcome of that evaluative judgment. Stated i n another manner whi l s t i t i s true that the verbal formulae are merely what Jul i u s Stone would c a l l a category of indeterminate refe rence,1-^ and only mask the evaluative judgment of nexus i f p r e d i c t a b i l i t y i s going to be the aim the grounds which led the court to come to the p a r t i c u l a r decision must be discovered. These grounds or factors then are the v i t a l element i n the prediction of c o n s t i t u t i o n a l questions as i t i s on them that the court w i l l r e l y i n making i t s evaluative judgment as to whether a statute has a s u f f i c i e n t l y close nexus to the head of power under which i t i s being j u s t i f i e d . 12 See supra. 13 J. Stone - 'Legal System and Lawyers' Reasonings', 1964, Sydney, p. 235 et seq. .29. These factors w i l l be dependent on the i n d i v i d u a l power or powers under consideration and w i l l be drawn mainly from the range of facts before the court. I t i s the function of the c o n s t i t u t i o n a l lawyer to select and evaluate the relevant factors which may include such things as the purpose, con tent and eff e c t of the l e g i s l a t i o n i n question. These factors w i l l of necessity be larg e l y subjective to the p a r t i c u l a r statute under consideration and i t i s to this statute s u b j e c t i v i t y that Lord Maugham was r e f e r r i n g i n A-G Alberta v. A-G Canada 1^ when he said, " U l t r a v i r e s must be determined i n each case as i t arises for no general test applicable to a l l cases can be safely l a i d down."15 The courts then i n deciding whether p a r t i c u l a r l e g i s l a t i o n i s u l t r a v i r e s i t s enacting l e g i s l a t u r e are making an evaluative judgment. This judgment i s whether or not the p a r t i c u l a r statute has a s u f f i c i e n t l y close nexus with the head of power under which i t i s being j u s t i f i e d . In making this judgment the courts w i l l r e l y on certain factors and once the decision has been arrived at i t w i l l be cloaked with the verbal formulae i n order to preserve the facade of an 14 Q.939] A.C. 117. 15 i b i d at p. 129. 30. a p r i o r i l o g i c a l deduction from previous decisions.16 Overlaying the selection of factors i s the system of stare d e c i s i s . This i s germaine to the process of selection on two l e v e l s ; f i r s t l y the binding force of c o n s t i t u t i o n a l precedent and secondly the range of facts before the courts. As to the former the e a r l i e r decisions i f on simi l a r points and binding w i l l themselves constitute a factor of the highest importance and i n so far as they contain evidence of the factors that guided those e a r l i e r courts they w i l l guide the choice of factors i n the instant case.l^ The range of facts before the court i s important because i t i s larg e l y from these facts that the choice 18 of factors w i l l be made. 16 This i s not to imply a c r i t i c i s m of the common law system the advantage of such system i s precisely that i t gives an appearance of immutability and certainty whilst i n r e a l i t y being highly v o l a t i v e and subject to s o c i a l , e t h i c a l and p o l i t i c a l pressures. See Stone - book - op.cit. pages 237 to'241. 17 Too much should not be made of this second proposition because of the statute s u b j e c t i v i t y to which reference has previously been made. 18 This i s the j u s t i f i c a t i o n for the 'Brandeis B r i e f . 31. The main rules r e l a t i n g to c o n s t i t u t i o n a l precedent are clear . Thus the Pr i v y Council did not regard i t s e l f as absolutely bound by i t s own decisions but would seldom as a matter of practice depart from them on c o n s t i t u t i o n a l matters.19 The decisions of the Pri v y Council on appeal from Canada were binding on a l l Canadian courts including the Supreme Court of Canada u n t i l 1954.20 The Supreme Court of Canada regarded i t s e l f as bound by i t s own decisions other than i n exceptional circumstances,21 and i t s decisions were n a t u r a l l y conclusive on a l l other Canadian courts. The p o s i t i o n i n r e l a t i o n to the binding force today of pre 1954 decisions of the P r i v y Council on the Supreme Court of Canada and the extent to which that court i s , since 1954 bound by i t s own decisions are both more doubtful. In Reference re the Farm Products Marketing Act22 R and J. held that "the powers of thi s Court i n the exercise of i t s j u r i s d i c t i o n are no less i n scope than those formerly exercised i n r e l a t i o n to Canada by the J u d i c i a l Committee." 19 A-G Ont. v. Canada Temperance Federation, op. c i t . 20 Reference re Sect. 16 of the Special War Revenue Act Q942J S.C.R. 429. 21 A-G Can, v. Western Higbie [1945J S.C.R. 385 at 403. 22 095Q S.C.R. 196 at 212. This indicates that the Supreme Court w i l l place i t s e l f i n the same po s i t i o n as the Pri v y Council i n r e l a t i o n to decisions of that body on appeal from Canada before 1954. This approach agrees with that of R i n f r e t C.J. i n In Re  Storgoff.23 At the time that that case was heard only criminal appeals to the P r i v y Council had been abolished and the Chief Justice was therefore dealing with only such appeals when he held "the Supreme Court of Canada i s now the court of l a s t resort i n criminal matters, and although, of course, former decisions of the P r i v y Council, or decisions of the House of Lords i n criminal causes or matters, are e n t i t l e d to greatest weight.it can no longer be said as was affirmed by Viscount Dunedin de l i v e r i n g the judgment of their Lordships i n Robbins v. National Trust Co. Limited that the House of Lords, being the supreme tr i b u n a l to s e t t l e English law ..... the Colonial Court, which i s bound by English law, i s bound to follow i t . " 2 ^ I f t h i s approach i s adopted the Supreme Court of Canada w i l l not be bound by i t s own decisions or those of the Pri v y Council on appeal from Canada given p r i o r to 1954 but i t w i l l seldom depart therefrom. The adoption of such 23 [1945] S.C.R. 526. 24 i b i d p. 538. 33. a p o s i t i o n w h i l s t i n accord with the general crumbling of the c i t a d e l of s t r i c t stare decisis25 i s s t i l l at variance i n degree with the view p r e v a i l i n g i n the U.S.A. There, the Supreme Court has often asserted that i t w i l l not hesitate to overrule a p r i o r c o n s t i t u t i o n a l decision which i t considers to be wrongly decided State Board of Insurance  v. Todd Shipyards Corp. 2 6 T h e rationale of t h i s approach i s that stare d e c i s i s i n an absolute form i s inapplicable because i t i s structured on the a b i l i t y of the l e g i s l a t u r e to correct f a u l t s i n the law by statute which i n a federal system i s d i f f i c u l t i f not impossible.27 whilst this r a t i o n a l e has great persuasive ef f e c t against an absolute system of stare d e c i s i s i t does not greatly af f e c t a modified approach such as that of the P r i v y Council and i t i s sug gested that the more cautious p o l i c y be adopted i f only for the reason that people w i l l have acted on the p r i o r decision. This i s the pervading r u l e i n A u s t r a l i a where the High Court has said i t w i l l only reverse i t s e a r l i e r decisions 25 Vide the High Court of A u s t r a l i a i n Parker v. The  Queen (1962-3) 111 C.L.R. 610 at 632-3 and the House of Lords i n Practice Note Q.966T] 1 W.L.R. 1234. 26 (1962) 370 U.S. 451. 27 See per Brandeis J . i n Burnet v. Coronado O i l & Gas Co. (1932) 285 U.S. 393 at 405 c i t e d i n Laskin - book - op. c i t . at p. 192. 34. on a showing that the case i n point i s 'manifestly wrong'.28 Regardless however of whether or not the approach of the United States i s adopted the existence of pri o r decisions on s i m i l a r matters i s s t i l l of major importance being both a factor i t s e l f and a guide as to the factors which other courts have found relevant i n dealing with a simi l a r case. In considering the range of facts before the court i t must be borne i n mind that there are two types of such facts i n any l i t i g a t i o n ordinary facts and l e g i s l a t i v e f a c t s . Ordinary facts are facts peculiar to the p a r t i c u l a r parties and arise where one party asserts and the other denies c e r t a i n things. L e g i s l a t i v e facts are general facts not peculiar to the immediate parties.29 Constitutional facts are a s p e c i f i c type of l e g i s l a t i v e f a c t . They are facts 'described as information which the court should have i n 28 per Higgins J. i n Gray v. Dalgety Ltd. (1916) 21 C.L.R. 551. Whilst t h i s power has been exercised e.g: i n Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 C.L.R. 129 and the Tramways Case (No. 1) (1914) 18 C.L.R. 54 there have been repeated warnings about attacking decisions" l i g h t l y e.g: Dixon J. i n Cox v. Journeaux (1934-5) 52 C.L.R. 282; Australian A g r i c u l t u r a l Co. v. Federated  Engine drivers' & Firemans' Assoc. of A'asia (1913) 17 C.L.R. 274; Metal Trades Employers' Case (1936) 54 C.L.R. 387. Moreover the High Court has on occasions refused to overrule e a r l i e r c o n s t i t u t i o n a l decisions given only one or two years previously,e.g. Cain v. Malone (1942) 66 C.L.R. 10. 29 This d i s t i n c t i o n i s that of P.H. Lane i n A r t i c l e "Facts and Constitutional Law" (1963) 37 A.L.J. 108 to 119. 35. order to properly judge of the v a l i d i t y of the statute i n question, or facts the existence of which i s necessary i n law to provide a c o n s t i t u t i o n a l basis for l e g i s l a t i o n ' . 3 0 A court acquires a l l facts either by j u d i c i a l notice or by evidence tendered. I t has often been s t a t e d 3 1 that j u d i c i a l notice can be taken of facts that are so generally known as to give r i s e to the presumption that a l l persons are aware of them. C r o s s 3 2 has j u s t l y pointed out that this i s only part of the doctrine, a l b e i t the major part, as the idea of j u d i c i a l notice also includes 'facts' which are capable of immediate accurate demonstration by resort to r e a d i l y assessable sources of indisputable accuracy. 3 3 Furthermore i n th i s second part of the doctrine i t i s possible to give testimony that w i l l a s s i s t the court. Thus i n McQuaker v. Goddard 3^ the question was whether camels were mansuetae naturae and the court at f i r s t instance 30 Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1 at 222 et seq. c i t e d i n Lane - A r t . op. c i t . p.108. 31 e.g: i n Holland v. Jones (1917) 23 C.L.R. 149 at 153. 32 R. Cross - Book - 'Evidence' 2nd E d i t . London, 1963 pages 136-139. 33 Morgan - 'Some Problems of Proof Under the Anglo American System of L i t i g a t i o n ' page 61 c i t e d by Cross op.cit. page 133. 34 [194(0 1 K.B. 687. 36. heard witnesses and consulted textbooks. The basis for the hearing of the witnesses was stated by Clauson L . J . when the case was taken to the Court of Appeal thus:- "Sworn testimony can be heard before j u d i c i a l notice i s taken of a fact and i n such cases the witnesses are not s t r i c t u sensu giving evidence but a s s i s t i n g the judge i n forming his view as to what the ordinary course of nature i n t h i s regard i n fact i s , a matter of which he i s supposed to have complete knowledge."^5 J u d i c i a l notice i s the foundation for the 'Brandeis B r i e f i n the U.S.A. for as was said i n Muller v. 0regon^6 "we, (the U.S. Supreme Court) take j u d i c i a l notice of a l l matters of general knowledge." Hence i f the courts i n Canada evince an intention to refuse admission to evidence dealing with facts of a s o c i a l , e t h i  c a l or p o l i t i c a l v a r i e t y i t may be that j u d i c i a l notice w i l l be able to be used either i n b r i e f s or by the use of sworn testimony. Nevertheless the general attitude of Canadian courts to j u d i c i a l notice can be seen from Saumur  v. A-G Que.37 where the Supreme Court deprived the successful 35 i b i d p.700. 36 (1908) U.S. 412. Cited by Laskin, op . c i t . p. 187. 37 Q1953] 2 S.C.R. 299. 37. appellant of costs because his attorney had swamped the Court's proverbial boat with f a c t s . The second method whereby the courts can acquire facts i s by the adducing of evidence s t r i c t u sensu. There has not been much attention paid, i n Canada, to the use of evidence as a method of bringing c o n s t i t u t i o n a l facts before the courts except i n r e l a t i o n to 'ext r i n s i c aids'. 3** Yet i t i s submitted that this method i s to be preferred to the use of j u d i c i a l notice for as Professor Lane has aptly observed " i n truth there i s no reason i n law or log i c why the court should not acquire relevant c o n s t i t u t i o n a l facts from e v i  dence as much as from j u d i c i a l notice; when such facts are propounded i n court by one party subjected to c r i t i c i s m by the other party then 'found' by the court the decision rests on a surer foundation than what i s b u i l t upon the flat-earthism 38 ' e x t r i n s i c aids' or 'e x t r i n s i c materials' are used loosely. The following four uses are common:' 1) the l e g i s l a t i v e h i s t o r y of a p a r t i c u l a r impugned statute. 2) a l l the facts that i t i s l o g i c a l l y possible to bring forward i n connection with the interpretation of such a statute other than i t s own words. 3) the l e g i s l a t i v e h i s t o r y of the p a r t i c u l a r section of the B.N.A. Act being considered. 4) a l l the facts that i t i s l o g i c a l l y possible to bring forward i n connection with the inter p r e t a t i o n of the pa r t i c u l a r section of the B.N.A. Act being considered other than i t s own words. As the basic c o n s t i t u t i o n a l judgment i s evaluative of the p a r t i c u l a r statute i t i s here proposed to use the second meaning. 38. of so c a l l e d notorious facts which are incontestable."-^ Nevertheless i t may w e l l be that there are certai n areas where j u d i c i a l notice i s available but where i t i s impossible to tender evidence. Thus i n Cairns Construction Ltd. v.  Govt, of Saskatchewan^ C u l l i t o n J.A. of the Saskatchewan Court of Appeal stated "The Courts have only departed from t h i s general rul e (of e x t r i n s i c evidence not being admis sible) i n considering, i n p a r t i c u l a r cases matters of h i s t o r y , law and pr a c t i c e ; circumstances leading to the passage of the Act and facts of which the Court could and  should take j u d i c i a l notice. 41 i Can f i n d no cases since the d e f i n i t i o n of a d i r e c t tax was adopted by the P r i v y Council, i n which the evidence or opinions of p o l i t i c a l economists were considered by the court."42 Whichever method i s used there are two major hurdles to the introduction of c o n s t i t u t i o n a l facts before a Canadian court. The f i r s t of these i s the general rul e i n r e l a t i o n to e x t r i n s i c aids and the second i s the concept of 39 P.H. Lane - A r t . - op.cit.p.110. - note however that the learned author assumes that there can be no sworn testimony and cross examination under j u d i c i a l notice which i s contrary to McQuaker v. Goddard op.cit. 40(1959) 16 D.L.R. (2d) 465. 41 i t a l i c s mine - author. 42 i b i d pp. 491-2. 39. relevancy coupled with the nature of j u d i c i a l review i t s e l f . In considering the use of e x t r i n s i c materials i n Canadian c o n s t i t u t i o n a l i nterpretation care must be taken to d i s t i n  guish the p o s i t i o n of the use of such materials i n r e l a t i o n to l e g i s l a t i o n impugned under the Act. When t h i s d i s t i n c t i o n i s kept f i r m l y i n mind i t can be seen that the a d m i s s i b i l i t y of e x t r i n s i c materials i n the former case i s not conclusive as to the l a t t e r . Hence even i f V.C. MacDonald i s r i g h t ^ 3 i n concluding that the general r u l e i s against the use of such materials to a s s i s t i n the construction of the B.N.A. Act i t by no means follows that such use i s excluded i n r e l a t i o n to an impugned statute. As a matter of his t o r y the general trend i n English statutory i n t e r p r e t a t i o n has been to exclude the l e g i s l a t i v e h i s t o r y of Acts of Parliament from the c o u r t s . ^ The t r a d i t i o n a l explanation for t h i s view has always been that parliament i s a corporate e n t i t y and the speeches of 43 V.C. MacDonald - A r t i c l e - "Constitutional Interpretation and E x t r i n s i c Evidence" (1939) 17 Can. Bar. Rev. 77 at 81. 44 Vide Alderson B. i n In Re Gorham 5 Ex. 667; Barbat v.  Al l e n 7 Ex. 616 per Pollock C.B.; Ju l i u s v. Oxford 49 L.J.Q.B. 578; South-Eastern Railway Co. v. Railway Commissioners 50 L.J.Q.B. 203. - a l l c i t e d by Taschereau C.J. i n Gosselin v. R. 33 S.C.R. 255. By 'Legislative History' i s meant the actual h i s t o r y of the measure through the l e g i s l a t u r e , e.g. debates; i t i s not meant to include previous Acts dealing with the same subject matter which have always been admissible. 40. indi v i d u a l s should therefore have l i t t l e weight i n deciding what was i t s c o l l e c t i v e aim. Thus Lord Maugham L.C. i n A-G for Alberta v. A-G for Canada45 said " I t must be re membered that the object or purpose of the Act, i n so far as i t does not p l a i n l y appear from i t s terms and i t s probable e f f e c t , i s that of an incorporeal e n t i t y namely, the Legis la t u r e , and, generally speaking, the speeches of individuals would have l i t t l e evidentiary weight."46 This r u l e has been f i r m l y applied i n Canadian consti t u t i o n a l law i n respect of speeches by members of p a r l i a  ment. Thus i n Utah Co. of the Americas and Texada Mines  Limited v. A-G B.C.47 the t r i a l judge took j u d i c i a l notice of press and radio statements by Ministers of the Crown. On appeal the Supreme Court of Canada held that the t r i a l judge had not based his decision on the unproven statements and that evidence to prove them would have been inadmissible. This p r i n c i p l e was adopted i n A-G v. Readers' Digest Asso  c i a t i o n (Canada)^ where the Supreme Court held that a speech of the Finance Minister was not admissible to show 45 op.cit. 46 D-939] A.C. 117 at 131. 47 (1959) 19 D.L.R. (2d) 705. 48 op.cit. 41. that l e g i s l a t i o n was colourable. There have been con f l i c t i n g views expressed as to the a d m i s s i b i l i t y of Royal Commission and Committee reports. Thus i n Home O i l Dis  tri b u t o r s Ltd. v. A-G B.C. 4 9 Davis J. stated "Generally speaking the Court has no r i g h t to interpret l e g i s l a t i o n by reference to such extraneous material as the evidence taken before and the report of a public inquiry under a Royal Commission."50 The learned judge went on to c i t e with approval the judgment of Lord Wright i n Assam Railways and  Trading Co. v. Commissioner of Inland Revenue51 where he held that a Royal Commission report was not admissible i n evidence for the purpose of showing the intention i . e : - the purpose or object of an Act. Again i n the Readers'  Digest Assoc. Case-*2 Cartwright J. i n de l i v e r i n g the judgment of himself and Locke J. said "there i s no decision which requires us to hold that a report of a Royal Commission made p r i o r to the passing of a statute and r e l a t i n g to the subject matter with which the statute deals, but not referred to i n the statute i s admissible i n evidence i n an action 49 0.940] S.C.R. 444. 50 i b i d p.452. 51 0 9 3 5 3 A « c '« 4 4 5 • 52 op.cit. 42. seeking to impugn the statute. In my opinion the general rule i s that i f objected to i t should be excluded."53 On the other hand Lord Denning M.R. used a report of a committee i n Letang v. Cooper54 to see what was "the mischief at which the Act was directed" i . e : "to get the facts and surrounding circumstances from the report, so as to see the background against which the l e g i s l a t i o n was enacted."55 The learned Master of the R o l l s further stated-56 that "This i s always a great help i n in t e r p r e t i n g (the Act) ." Lord Halsbury made a s i m i l a r approach i n Eastern Photographic  Materials Co. v. Comptroller General of Patents.57 i n the most recent case on the matter58 the question before the Appellate D i v i s i o n of the Supreme Court of Alberta was whether certain committee reports were admissible to give the court background information as to the Communal Property Act 1955 (Alta.) the c o n s t i t u t i o n a l v a l i d i t y of which was being impugned. During a review of the authorities 53 i b i d p.791. 54 Q9643 2 A11E.R. 929. 55 i b i d p.933. 56 i b i d , p.933. 57 Ql898] A.C. 517 at 575. 58 Walter v. A-G A l t a . (1967) 58 W.W.R. 385. 43. McDermid J.A. (with whom Smith C.J.A. and Porter J .A. agreed) said^9 "The question of the a d m i s s i b i l i t y of the report of a commission was l e f t open by the Supreme Court of Canada i n A-G Can, v. Readers' Digest Assoc. (Canada) Ltd."60 His Lordship then proceeded to refer to the reports not as di r e c t evidence of intention but "for the purpose of ascertaining the mischief at which the Act was directed."61 The authorities r e l i e d on i n reaching t h i s decision were the judgment of Ri t c h i e J.62 i n the Readers' Digest Case63 and Letang v. Cooper.64 xn the f i r s t case the following statement was made: "As the reports were introduced without objection by counsel for background information, we are e n t i t l e d to use them .... as a source of information as to what was the e v i l or defect which the Act of Parliament now under construction was intended to remedy."65 The other 59 i b i d p.403. 60 op.cit. 61 op.cit. p.405. 62 with whom Maitland J. agreed. 63 op.cit. 64 op.cit. 65 op.cit. p.796. 44. judges i n the Walter Gase^6 Johnson and Kane J.J.A. held that " i n determining the v a l i d i t y of an Act .... the reports of committees which recommended changes which were made i n the l e g i s l a t i o n are proper matters to be considered."67 I t would seem therefore that on the balance of authority a Royal Commission or committee report w i l l be admissible not as d i r e c t evidence of intention but as background i n f o r  mation. In a unitary state where there are few curbs on parliamentary power there i s no necessity to look at the purpose of an Act for i t s interpretation although such purpose may be of assistance. The h i s t o r i c a l choice then of English law to preclude certain forms of evidence of such purpose w h i l s t a r b i t r a r y was nevertheless consistent with i t s idea of parliamentary sovereignty. In a* federal state on the other hand the f i r s t question regarding an Act i s whether i t i s within power. No doubt i t would be possible to construct a d i v i s i o n of powers based e n t i r e l y on c r i t e r i a extraneous to purpose but t h i s was not done i n Canada. The r e s u l t i s then that i t i s essential that evidence of purpose be admitted to aid i n c o n s t i t u t i o n a l adjudication i n Canada 66 op.cit. 67 i b i d p.393. 45. and one would wish for l e g i s l a t i v e h i s t o r y to be available to the court.68 Davis J. i n Home O i l Dis t r i b u t o r s Ltd. v.  A-G B.C.69 recognized t h i s p o l i c y d i s t i n c t i o n i n the a p p l i  cation of the general r u l e of i n a d m i s s i b i l i t y to federal as contrasted with unitary states when he said^O "A r u l e somewhat wider than the general r u l e may be necessary i n considering the c o n s t i t u t i o n a l i t y of l e g i s l a t i o n under a federal system where l e g i s l a t i v e authority i s divided between the central and l o c a l l e g i s l a t i v e bodies." The necessity for the d i s t i n c t i o n can be seen most acutely i n the case of colourable l e g i s l a t i o n . The r e s u l t s of a complete bar to admission would be that l e g i s l a t i o n for an u l t r a v i r e s purpose could be sustained i f as a matter of form i t complied with the relevant section of the B.N.A. Act. This r e s u l t 68 For a j u d i c i a l plea for more evidence to be led ' of facts that w i l l a s s i s t the court i n examining the purpose of the l e g i s l a t i o n see Porter J.A. i n Walter v. A-G A l t a . o p.cit. at p.387 where dealing with a question of the c o n s t i t u t i o n a l i t y of a statute that s u r r e p t i t i o u s l y struck at the Hutterite community he said: "We should know something of the consequences of the development of these colonies on municipal government, on telephone communication, on trans portation for school purposes, on snow clearance, and a l l those other elements which go for better r u r a l l i v i n g , " . His Lordship gave further examples and continued, "These I c i t e as examples of the facts that should be before us i f we are to examine the true purpose of the l e g i s l a t i o n . " 69 op.cit. 70 i b i d p.453. 46. the Canadian courts have vehemently and steadfastly denied.71 Thus Lord Maugham L.C. i n A-G A l t a . v. A-G Can.72 asserted " I t i s not competent either for the Dominion or a province under the guise, or the pretence, or i n the form of an exercise of i t s powers to carry out an object which i s beyond i t s powers and a trespass on the exclusive powers of the other: A-G Ont. v. Reciprocal Insurers73; i n Re The Insurance  Act of Canada74 Here again, matters of which the Court would take j u d i c i a l notice must be borne i n mind, and other  evidence i n a case that c a l l s for it."75 Another example of the same j u d i c i a l a t t i t u d e i s the j o i n t judgment of Taschereau, R i n f r e t and Crockett J . J . i n Lower Mainland  Dairy Products Board v. Turner's Dairy Limited76 w h e r e i n i t was said "In certain cases i n order to avoid confusion extraneous evidence i s required to f a c i l i t a t e the analysis of l e g i s l a t i v e enactments and thus disclose their aims which 71 Vide Lord Atkin i n Ladore v. Bennett 0-939] A « c - 4 6 8 at 482 and the decision of the P.C. i n P.A.T.A. v. A-G Can. Cl93l3 A.C. 310. 72 op.cit. 73 [19243 A.C. 328. 74 [1932] A.C. 41. 75 i t a l i c s mine - author, op.cit. pp.130-131. 76 [1941] S.C.R. 573. 47. otherwise would remain obscure or even completely concealed. The true purposes and effect of l e g i s l a t i o n , when revealed to the courts are indeed very precious elements which must be considered i n order to discover i t s r e a l substance. I f i t were held that such evidence may not be allowed and that only the form of an Act may be considered, then colourable devices could be used by l e g i s l a t i v e bodies to deal with matters beyond their powers."77 On p o l i c y the r u l e i s at variance with purposive c o n s t i t u t i o n a l i nterpretation i n Canada. I t would be convenient to suggest that i t should be abandoned i n the Constitutional arena but the weight of recent authority e s p e c i a l l y the Readers' Digest Case^S precludes t h i s . I t i s therefore incumbent on the co n s t i t u t i o n a l lawyer to investigate exactly what i s the ambit of the general r u l e . The types of evidence that have so far been excluded 77 i b i d p.583 - This rule was applied i n Anthony v.  A-G A l t a . U-9431 S.C.R. 320 and see also the judgment of Ri n f r e t C.J. i n Reference re V a l i d i t y of Wartime Leasehold  Regulations Q.950J S.C.R. 124 i n which he held "no doubt anybody attacking Parliament's l e g i s l a t i o n as colourable would have to introduce evidence of certain facts to support the contention, for i t can hardly be expected that the Order of Reference would contain material of a nature to * induce the Court to conclude as to the c o l o u r a b i l i t y of the l e g i s l a t i o n . " (page 127) 78 op.cit. 48. are press statements by members of p a r l i a m e n t ^ and speeches i n parliament by Ministers of the Crown. 8 0 Against t h i s there have been numerous references to associated statutes es p e c i a l l y where a l e g i s l a t i v e scheme i s involved. In Reference  re Alberta Statutes^l i s an example of t h i s . 8 2 As a matter of principle, i t i s therefore submitted that the exclusion of e x t r i n s i c evidence should, i n c o n s t i t u t i o n a l questions, be l i m i t e d to those spheres where i t has already been applied and that every e f f o r t should be pursued to w h i t t l e away and ultimately abolish those. 8 3 Even i f the hurdle of the non use of e x t r i n s i c material i s overcome there i s an equally d i f f i c u l t b a r r i e r to the wholesale admission of c o n s t i t u t i o n a l f a c t s , v i z : - the concept of relevancy coupled with the nature of j u d i c i a l review. When a court i s dealing with a question of con s t i t u t i o n a l power i t inquires whether the statute i n issue 79 Texada Mines Case op.cit. 80 Readers' Digest Assoc. Case op.cit. 81 op.cit. 82 See also Laskin - Book - op.cit. p. 160 and the cases therein c i t e d . 83 The U.S. Supreme Court has admitted both speeches and reports of committees on c o n s t i t u t i o n a l issues vide Wright v. Vinton Branch of Mountain Trust Bank of Roanoke (1937) 300 U.S. 1^ 40 per Brandeis J. and generally Laskin- op.cit. page 171. 49. attains an end 'in r e l a t i o n to' a spe c i f i e d power^4 a s contrasted with merely 'affecting' that power. Hence facts w i l l be relevant i f they a s s i s t i n resolving that enquiry, i . e : - evidence could be introduced to show that a statute although outwardly within the power was i n fact outside it.85 Lest i t be thought that such an expansive approach i s tantamount to heresy i n Canada, i t should be pointed out86 that the Australian High Court which i s probably more ' l e g a l i s t i c ' than i t s Canadian counterpart^? has admitted evidence to show both that a federal statute w h i l s t purporting to deal with a subject outside the federal powers was i n t r a v i r e s and that a federal statute w h i l s t purporting to be within federal powers was u l t r a v i r e s those powers.88 Hence the concept of relevancy by i t s e l f i s far from 84 Gold Seal Ltd. v. Dominion Express Co. op.cit. and Munro v. National Capital Commission op.cit. 85 This i s 'colourable l e g i s l a t i o n ' - see cases c i t e d previously and Lord Greene i n A-G B.C. v. Esquimalt &  Nanaimo Railway 0-950] A.C. 87 at 114. 86 As P.H. Lane has done i n Art. op.cit. p. 113. 87 Vide S i r Owen Dixon's address on being sworn i n as Chief Justice (1952) 85 C.L.R. XI at XIV and S.A. De Smith Book Review (1957) 20 M.L.R. 681 at 682. 88 P.H. Lane op.cit p.115 and R. v. Burgess Exp. Henry (1936) 55 C.L.R. 608 at 629 and 0'Sullivan v. Noarlunga Meat Ltd. (1954) 92 C.L.R. 565 at 596. 50. being a r e s t r i c t i o n . The r e s t r i c t i v e element i s introduced when i t i s coupled to the scope of j u d i c i a l review. Lane 8 9 has indicated that there i s no written basis i n the B.N.A. Act for c o n s t i t u t i o n a l review by the j u d i c i a r y . Whilst t h i s may be so the fact remains that the courts have asserted such a doctrine which assertion has been s a n c t i f i e d by practice. The scope of j u d i c i a l review i s l i m i t e d . I t has no application to whether the l e g i s l a t u r e has chosen the best method of achieving i t s aims. I t i s only concerned with whether the actual method chosen i s within the l e g i s l a  ture's power. Hence i n theory c o n s t i t u t i o n a l facts are relevant i f they go to the l a t t e r proposition but are i r r e l e v a n t i f they go to the former. These two rules are however not as clear cut as would at f i r s t sight appear. Thus i f i t i s claimed that a p a r t i c u l a r statute i s within a power of i t s enacting l e g i s l a t u r e , facts which show that the e f f e c t of the statute i s to carry out something within that power or to a t t a i n an end 'in r e l a t i o n to' the power are relevant whereas the i d e n t i c a l facts are i r r e l e v a n t i f they are only sought to be admitted to show that the l e g i s l a t u r e could otherwise have achieved i t s object and 89 P.H. Lane - A r t i c l e - ' J u d i c i a l Review or Judgment by the High Court' 5 Syd. L.R. 203 at 203. 51. therefore that the l e g i s l a t i o n i s colourable.90 j n Aus t r a l i a these two sometimes c o n f l i c t i n g p r i n c i p l e s have been cr y s t a l i s e d into a r u l e that where the question of purpose or e f f e c t of l e g i s l a t i o n i s i n issue as tending to show that the statute was within power evidence w i l l be admitted to show that some expert opinion was prepared to say that the means chosen by the federal parliament would have a within power effect.91 That i s , i f a s i t u a t i o n arose where on the balance of expert opinion the e f f e c t of a federal statute would be X, and X was beyond federal power, the statute would s t i l l be upheld i f there was some expert opinion that the means chosen by the l e g i s l a t u r e would have Y effect and Y was within i t s power. I t seems l i k e l y that Canadian courts would adopt a s i m i l a r solution at least i n so far as the r e c o n c i l i a t i o n i s based on a weak presumption of the v a l i d i t y of federal statutes.92 Accordingly i t i s submitted that the scope for tendering evidence of c o n s t i t u t i o n a l facts i n Canada i s wider than has previously been ack nowledged . 90 This analysis i s based on P.H. Lane - A r t i c l e - 'Facts and Constitutional Law' op.cit. 91 Lane i b i d p.119. 92 For such weak presumption i n Canada see V a l i n v.  Langlois 5 App.Cas. 115 at 118. 52. When i t i s r e a l i z e d that the determination of the v a l i d i t y of l e g i s l a t i o n under S.91 and S.92 i s an evaluative judgment the scope of the double aspect doctrine can be better appreciated. Under this doctrine l e g i s l a t i o n can be i n t r a v i r e s the federal parliament even though si m i l a r l e g i s l a t i o n could be enacted from another aspect or for another purpose by the p r o v i n c i a l l e g i s l a t u r e s and. vice versa. The doctrine was f i r s t stated i n Hodge v. The Queen 9 3 where the P r i v y Council said94 "subjects which i n one aspect and for one purpose f a l l within S.92 may i n another aspect and for another purpose f a l l within S.91." Laskin 95 observes that t h i s doctrine was derived from Chief Justice Marshall's dictum i n Gibbons v. Ogden 9 6 where that learned judge said97 " A l l experience shows that the same measure or measures scarcely distinguishable from each other may flow from d i s t i n c t powers; but this does not prove that the powers themselves are i d e n t i c a l . " Now a l l t h i s double aspect doctrine i s r e a l l y s tating i s that when examining a 93 (1883) 9 App.Cas. 117. 94 i b i d p.130. 95 op.cit. p.90. 96 (1824) 22 U.S. 1. 97 i b i d p.90. 53. p a r t i c u l a r statute the courts may hold that i t has a s u f f i c i e n t nexus with a S.91 power to be v a l i d and that at another time a statute dealing with si m i l a r matters may be held to have a s u f f i c i e n t nexus with a S.92 power to be v a l i d . This i s a r e s u l t of factors such as e f f e c t j "nature of the whole Act and purpose. I t flows from the fact that no d i v i s i o n of powers can ever be completely watertight. Furthermore this concept of dual aspect i s consistent with the general method of interpretation previously l a i d down. Thus a court i n answering the f i r s t question as to whether the statute i s prima facie within a S.92 power may decide that i t has a nexus with that power s u f f i c i e n t l y close to be so cla s  s i f i e d and then go to hold i n answering the second question that i t has a close nexus with a S.91 enumerated power and thus can only be enacted on a federal l e v e l . Yet when another statute on much the same matter i s impugned the court may hold that i t s nexus i s closer with S.92 than with the S.91 enumerated power and hence that i t can only be v a l i d i f enacted by a p r o v i n c i a l l e g i s l a t u r e . Associated with the idea of an evaluative judgment i s the question of s e v e r a b i l i t y . Where certain sections of a statute are u l t r a v i r e s there are two situations that may occur. F i r s t l y the bad sections may be so in e x t r i c a b l y interwoven with the rest of the Act as to be incapable 54. of being deleted without robbing the Act of effect i n which case the whole Act w i l l be u l t r a v i r e s . Secondly the bad' sections may deal with only part of what i s contemplated by the Act and therefore the residue w i l l be able to stand on i t s own feet i n which ease the bad section w i l l be u l t r a v i r e s but the residue w i l l be upheld as being within power. The c r i t e r i o n for determining s e v e r a b i l i t y was c l e a r l y l a i d down by Viscount Simon i n A-G Alberta v. A-G Canada (Alberta  B i l l of Rights Act Case)98 wherein d e l i v e r i n g the P r i v y Council's advice, he said the question was whether99 "what remained i s so i n e x t r i c a b l y bound up with the part declared i n v a l i d that what remains cannot independently survive, or as i t has sometimes been put, whether on a f a i r review of the whole matter i t can be assumed that the l e g i s l a t u r e would have enacted what survives without the part that survives at a l l . " Besides invoking a f i c t i o n , v i z : - the l e g i s l a t i v e intent, this test of s e v e r a b i l i t y i s an evaluative judgment i t s e l f . As i t w i l l only be applied where part of the statute has been held to be u l t r a v i r e s which i s i t s e l f a value judgment the test of s e v e r a b i l i t y i s building evaluation on evaluation. Whilst t h i s i n i t s e l f i s not 98 D-9473 A.C. 503. 99 i b i d p.518. 55. objectionable i t i l l u s t r a t e s the fact that to regard the question of whether or not to sever the u l t r a v i r e s parts of a statute as being based on an objective c r i t e r i o n i s as accurate as so regarding the 'reasonable man' concept i n negligence.100 A c l a s s i c example of j u d i c i a l f a i l u r e to appreciate the evaluative judgment whereby a statute i s aaid to be within either a S.91 enumeration or a S.92 power can be found i n the a n c i l l a r y or i n c i d e n t a l doctrine. The best statement of t h i s concept i s the t h i r d of Lord Tomlin's propositions i n the F i s h Canneries CaselOl v i z : - " i t i s within the competence of the Dominion Parliament to provide for matters, which, though otherwise within the l e g i s l a t i v e competence of the p r o v i n c i a l l e g i s l a t u r e are necessarily i n c i d e n t a l to e f f e c t i v e l e g i s l a t i o n by the Parliament of the Dominion upon a subject expressly enumerated i n S.91." This statement which i s based on e a r l i e r pronouncements i n A-G for Ontario 100 In so far as both c r i t e r i a exclude the use of other c r i t e r i a they may properly be termed 'absolute'. However the opposite of 'absolute' i s not 'subjective' but ' r e l a t i v e ' . Both the test of s e v e r a b i l i t y and the 'reasonable man' idea are 'absolute subjective' concepts. 101 op.cit. at p.118. 56. v. A-G for Canada 1 0 2 and A-G Ontario v. A-G Canada, 1 0 3 received j u d i c i a l approval i n In Re S i l v e r B r o s . , 1 0 4 In Re Aeronautics Reference 1 0 5 and C.P.R. v. A-G B.C. 1 0 6 I t i s apparent that either a statute comes within a S.91 enumerated power or i t does not do s o . 1 0 7 The whole idea of setting up a d i v i s i o n of powers i s for certain powers to be given to body A. and cer t a i n to body B. Of course certain powers may be given to both A and B and i t i s also possible for both bodies to share certain powers owing to f a u l t y drafting but neither form of concurrency denies that for example body A has the power i t merely means that body B may have i t also. Hence to suggest that something i s necessarily i n c i d e n t a l to a power i s i n r e a l i t y only saying that i t i s so closely connected with the power as to be regarded as part of i t . On th i s basis the doctrine 102 [1894] A.C. 189. (Voluntary Assignments Case) 103 (Local Prohibitions Case) op.cit. 104 op.cit. 105 op.cit. 106 op.cit 107 Looked at i n another way a statute although not as a matter of l o g i c a l necessity belonging within a S.91 power, i s deemed either to have a s u f f i c i e n t nexus or not to have a s u f f i c i e n t nexus with that power. 57. of a n c i l l a r y or in c i d e n t a l powers i s redundant. Moreover i t i s a dangerous doctrine as can be seen from the judgment of Duff J . i n Reference re Waters and Water PowerslQ8 where he asserted that a difference existed between powers within the S.91 enumerated a r t i c l e s and those a n c i l l a r y or i n c i d e n t a l to such enumerations. Thus he s t a t e d ^ 9 " i t i s only the exclusive authority of the Dominion under the enumerated heads of S.91 which i s accorded the primacy intended to be declared by those words. In themselves they have not the effec t of giving pre-eminence to the in c i d e n t a l or a n c i l l a r y powers which are not s t r i c t l y exclusive." Now although t h i s approach has not found favour with subsequent courtsHO i t c l e a r l y indicates that d i v i d i n g up the S.91 enumerated powers can lead to difference i n r e s u l t . The redundancy of the a n c i l l a r y doctrine was j u d i c i a l l y noticed i n A-G Can, v. NyoraklH where Judson J. held " l e g i s l a t i o n of th i s kind comes squarely under head 7 of S.91 notwithstanding the fact that i t may i n c i d e n t a l l y 108 C19293 S»C«R» 2 0 0 • 109 i b i d p.217. 110 Vide Lord Tomlin i n the F i s h Canneries Case op.cit. 111 (1962) 33 D.L.R. (2d) 373. 58. a f f e c t property and c i v i l r i g h t s within the Province. I t i s meaningless to support this l e g i s l a t i o n as was done i n the Grand Trunk C a s e i n o n the ground that i t i s necessarily i n c i d e n t a l to l e g i s l a t i o n i n r e l a t i o n to an enumerated class of subject i n S.91." Again i n Commission Du Salaire  -Minimum v. B e l l Telephone Co. of Canada 1 1 3 the Supreme Court was faced with deciding whether minimum wages l e g i s l a t i o n of Quebec applied to federal works or undertakings i n the absence of federal l e g i s l a t i o n . Martland J . i n del i v e r i n g the Court's judgment declined to hold that the federal power to l e g i s l a t e on hours of work was a n c i l l a r y or i n c i d e n t a l to i t s power i n r e l a t i o n to federal undertakings and held that i t was a ' v i t a l part' of such power. The question then i s not whether a statute i s on a matter so clos e l y connected with a S.91 power to be said to be i n c i d e n t a l or a n c i l l a r y to i t but simply whether i t can be said to f a l l within the ambit of that power. 1 1 4 I f the nexus analysis of interpretation i s adopted questions of paramountry between federal and p r o v i n c i a l 112 0.907] A.C. 65. 113 (1967) 59 D.L.R. (2d) 145. 114 For another c r i t i c i s m of the a n c i l l a r y doctrine see Laskin - A r t i c l e - "Peace, Order and Good Government Re Examined" (1947) 25 Can. Bar Rev. 1054 at 1061. 59. l e g i s l a t i o n w i l l only occur where the double aspect doctrine i s applied. This i s because such questions can only a r i s e where both statutes i n the absence of the other are v a l i d and under the nexus method the only case where both statutes would be v a l i d i s where the double aspect doctrine applies.H5 I t i s w e l l established that i n the event of a clash between federal and p r o v i n c i a l l e g i s l a t i o n the former s h a l l p r e v a i l . The major problem i n the area i s to determine when two statutes clash so that application of a paramountry doctrine i s required. The solving of this problem i s not assisted by such loose phrases as "There must be a r e a l c o n f l i c t between the two Acts; that i s the two enactments must come into c o l l i s i o n . " H 7 There are two methods for determining whether you have clashing l e g i s l a t i o n . The f i r s t of these i s the 'cover the f i e l d ' t e s t . This test has been adopted for determining 115 Under the double aspect doctrine a federal statute may have a s u f f i c i e n t l y close nexus with a federal power and a p r o v i n c i a l statute on a si m i l a r matter have an equally close nexus with a p r o v i n c i a l power but not a s u f f i c i e n t l y close nexus with a federal power for i t to be u l t r a v i r e s . 116 Tennant v. Union Bank of Canada op.cit; Local Prohibitions  Case op.cit; F i s h Canneries Case op.cit; C.P.R. v. A-G B.C. op.cit. 117 Local Prohibitions Case op.cit at p.366. 60. when there i s 'inconsistency' under S.109 of the Australian Constitution. That section provides:- "When a law of a State i s inconsistent with a law of the Commonwealth the l a t t e r s h a l l p r e v a i l and the former s h a l l to the extent of the inconsistency be i n v a l i d . " A c l a s s i c a l statement of the 'cover the f i e l d ' test i s that of Isaacs J. i n Clyde Engi  neering Co. Ltd. v. Cowburn 1 1 8 " j f a competent l e g i s l a t u r e evinces i t s intention to cover the whole f i e l d that i s a conclusive test of inconsistency where another l e g i s l a t u r e assumes to enter to any extent upon the same f i e l d . " Again i n Ex.p. McClean 1 1 9 S i r Owen Dixon (as he la t e r became) i n applying the test points out that "inconsistency does not l i e i n the mere co-existence of two laws susceptible of simultaneous obedience. I t depends upon the intention of the paramount l e g i s l a t u r e to express by i t s enactment completely, exhaustively or exclusively what s h a l l be the law governing the p a r t i c u l a r conduct or matter to which i t s attention i s directed. When a federal statute discloses such an intention i t i s inconsistent with i t for a State to govern the same conduct or m a t t e r . " 1 2 0 118 (1926) 37 C.L.R. 466 at 489. 119 (1930) 43 C.L.R. 472. 120 i b i d p.483. There are then three constituent parts of the 'cover the f i e l d t est' a subject matter or f i e l d a comprehensive coverage of that f i e l d by the federal authority and a State or p r o v i n c i a l law on a matter inside that field.121 Hence i n order to determine by the 'cover the f i e l d ' test whether the two statutes clash there are three value judg ments to be made: F i r s t l y what i s the relevant f i e l d , I 2 2 secondly whether the federal l e g i s l a t i o n i s or i s not meant to be comprehensive and f i n a l l y whether the State or p r o v i n c i a l l e g i s l a t i o n i s i n the f i e l d so covered. In Canada there has been some j u d i c i a l attention paid to this t e s t . Thus i n Forbes v. A-G for Manitobal 2^ the Pr i v y Council s a i d l 2 4 "the doctrine of the occupied f i e l d applies only where there i s a clash between Dominion and p r o v i n c i a l l e g i s l a t i o n within an area common to both." As the doctrine of the 'occupied f i e l d ' i s r e a l l y a test to decide whether or not there i s a clash between federal and p r o v i n c i a l l e g i s l a t i o n i t i s apparent that the P r i v y Council 121 Lane - Book - op.cit. p.231. 122 This w i l l l argely depend on the l e v e l of abstraction at which the statute i s viewed. 123 [j.937] A.C. 260. 124 i b i d p.274. f a i l e d to f u l l y appreciate the concept. Again i n 0'Grady  v. S p a r l i n g 1 2 5 Cartwright J. i n a dissenting judgment with which Locke J. concurred s a i d 1 2 6 "Assuming .... that S.55(l) (of the P r o v i n c i a l l e g i s l a t i o n ) has a p r o v i n c i a l aspect and so would be v a l i d u n t i l Parliament occupies the f i e l d i n which i t operates i t i s necessary to consider whether Parliament has done so. In my opinion Parliament has occupie the f i e l d . " Previously i n Reference re S.92(4) of the  Vehicles Act 1957 Saskatchewan C.93 1 2 7 the same learned judge held " I am of the opinion that S.92(4)d of the Vehicles Act of Saskatchewan invades a f i e l d occupied by v a l i d l e g i s l a t i o n of Parliament, i s i n d i r e c t c o n f l i c t with that l e g i s l a t i o n and cannot s t a n d . " 1 2 8 In Mackay v. R. 1 2 9 the Supreme Court i n c l i n e d to the view that federal par liament had occupied the f i e l d i n respect of signs for federal elections but found i t unnecessary to decide the point. Yet another example of j u d i c i a l approval of the 'cover the f i e l d ' test i n Canada i s the statement of 125 0-960] S.C.R. 804. 126 i b i d p.820. 127 Q-958] S.C.R. 608 128 i b i d p.622. 129 O 9 6 5 ] S.C.R. 798. 63. Lord Tomlin i n the F i s h Canneries Case. 1-^ 0 "There can be a domain i n which p r o v i n c i a l and dominion l e g i s l a t i o n may overlap i n which case neither l e g i s l a t i o n w i l l be u l t r a v i r e s i f the f i e l d i s clear, but i f the f i e l d i s not clear and the two l e g i s l a t i o n s meet the Dominion l e g i s l a t i o n must prevail."131 Lord Tomlin r e l i e d on Grand Trunk Railway  of Canada v. A-G Can.1^2 a s authority for t h i s proposition which has subsequently been j u d i c i a l l y approved.133 The 'cover the f i e l d ' test then has been applied i n Canada. I t i s not inconsistent with the double aspect doctrine as may at f i r s t sight appear. Such a suggestion stems from the idea that where you have federal and p r o v i n c i a l l e g i s l a t i o n dealing with a s i m i l a r subject matter you cannot adopt as a c r i t e r i o n for deciding whether the l e g i s l a t i o n clashes the subject matter or f i e l d of the paramount l e g i s  l a t i o n . This idea i s based on a misconception of the 'cover the f i e l d ' test. I t i s not a test of subject matter 130 op.cit. 131 i b i d p.118. 132 op.cit. 133 In Re Aeronautics Reference op.cit; In Re S i l v e r  Bros. op.cit; C.P.R. v. A-G B.C. op.cit. 64. for as Wynes 1 3^ aptly o b s e r v e s 1 3 5 "The test of 'covering the f i e l d ' i s of course only another way of expressing the p r i n c i p l e that i t i s the intention of the federal l e g i s l a t i o n which i s to be ascertained i n every case. The federal law may, for example, contemplate the co-existence of State provisions." I t i s p e r f e c t l y consistent to say that where both federal and p r o v i n c i a l l e g i s l a t i o n i s v a l i d because of the double aspect doctrine that whether or not they clash w i l l depend on the intention of the federal parliament and t h i s i s a l l the 'cover the f i e l d ' test purports to do. I t seems that t h i s basis of intention has not been f u l l y understood. Thus the P r i v y Council i n the Grand Trunk . C a s e 1 3 6 talked i n terms of l e g i s l a t i o n overlapping. F.P. V a r c o e 1 3 7 c r i t i c i z e d the overlapping idea by asserting " I t i s not p r o v i n c i a l and Dominion l e g i s l a t i o n that overlap. I f they did, the p r o v i n c i a l l e g i s l a t i o n would be automatically n u l l i f i e d . The overlapping i s between classes of subjects 134 W.A. Wynes - book - 'Legislative, Executive and J u d i c i a l Powers i n A u s t r a l i a ' 2nd E d i t i o n - Sydney - 1956. 135 i b i d p.133. 136 op.cit. 137 F.P. Varcoe - book - 'The Constitution of Canada', Toronto - 1965. 65. or heads of l e g i s l a t i v e power."! 3 8 With a l l due respect to the learned author t h i s statement shows a f a i l u r e to comprehend the basic concept of the 'cover the f i e l d ' t e s t . Whilst i t i s true that i t i s the vagueness i n classes of subjects that causes overlapping, i t i s nevertheless the l e g i s l a t i o n that overlaps. One i s not considering i n co n s t i t u t i o n a l questions i n t h i s area whether S.92(16) and S.91(27) for example, overlap each o t h e r 1 3 9 but whether a statute v a l i d under federal power and a statute v a l i d under p r o v i n c i a l power are able to stand together. In th i s sphere there are two d i s t i n c t questions: F i r s t l y whether the p r o v i n c i a l statute comes within a S.92 power and assuming that i t does whether i t also comes within S.91. I f i t does come within S.91 no question of paramountey can arise as the federal parliament has exclusive power to deal with S.91 matters. I f i t does not so f a l l within S.91 and a federal statute purports to deal with the same act or thing 138 i b i d p.43. 139 As a side comment i t should be noticed that the structure of the B.N.A. Act i s to deny concurrency of power and hence ex hypothesi the various heads of SS.92 and 91 cannot overlap. When paramountey questions a r i s e i t i s because the lack of complete separation has enabled statutes to f a l l within the power of both l e g i s l a t u r e s under the double aspect doctrine. 66. or person then the second question i s posed v i z : - whether the two statutes clash with the consequence that i f they do the federal l e g i s l a t i o n w i l l p r e v a i l . Unfortunately the Canadian courts have shown a tendency to confuse the question of v a l i d i t y with the question of whether the l e g i s l a t i o n clashes. Thus i n A-G for Ontario v. Barfried Enterprises Limited^O Martland J. s a i d ^ l "In these circumstances there i s a d i r e c t c o n f l i c t between the two statutes and .... the l e g i s  l a t i o n of the Canadian parliament v a l i d l y enacted must p r e v a i l , " however he then continued, "In my opinion therefore the l e g i s l a t i o n i n question i s u l t r a v i r e s the Ontario l e g i s  l a t u r e . " The second major test for deciding whether or not the two statutes meet, c o n f l i c t or clash i s the 'Double Obedience Test'. Under this theory two statutes do not c o n f l i c t unless i t i s impossible to comply with both at the same time. This view was taken by Judson J. i n d e l i v e r i n g the majority judgment i n 0'Grady v. S p a r l i n g 1 ^ 2 thus "There i s no c o n f l i c t Both provisions can l i v e together and 140 0-963] S.C.R. 570. 141 i b i d p.583. 142 op.cit. p.811. 67. operate concurrently." Again i n Smith v. The Queenl43 Maitland J . held, " i t may happen that some acts might be punishable under both provisions and i t i s i n t h i s sense that these provisions overlap. However even i n such cases there i s no c o n f l i c t i n the sense that compliance with one law involves breach of the other. I t would appear therefore that they can operate concurrently." This test was adopted i n Fawcett v. A-G for 0ntariol44 and had previously been suggested by Roach J.A. i n R. v.  Pee Kay Smallwares Limi ted.145 Laskin i s on the cases undoubtedly correct when he talks i n terms of the modern trend being towards the complementary approach and i t i s also v a l i d to point out as he does!46 that under the 143 D-96(0 S.C.R. 776 at 800. 144 i b i d p.583. 145 0-9471 O.R. 1019. 146 B. Laskin - op.cit throughout parts 3 & 4 of Chapter I I I and e s p e c i a l l y at page 140 the learned author treats the terms 'paramountcy' and'complementarity 1 as being opposite to one another and thus talks of a 'recession from paramountcy' to express the idea of double obedience replacing the cover the f i e l d t e s t . This use of the term 'paramountcy' ignores the f a c t that there i s no dispute that where v a l i d federal and p r o v i n c i a l l e g i s l a t i o n clash the former w i l l p r e v a i l . The area of d i f f i c u l t y i s i n determining when the statutes do clash. S t r i c t u sensu there i s no retreat from 'paramountcy' only a change from one test of whether l e g i s l a t i o n clashes to another. To be f a i r however i t i s true that under the double obedience test there w i l l be fewer cases of c o n f l i c t than where the cover the f i e l d test i s applied and to that extent Laskin ( Jis correct i n regarding the adoption of the test as marking a recession i n the amount of use of the paramountcy doctrine. 68. complementary theory or double obedience test there w i l l be cases of double sanction because of the discrepancy between the penalties of the two Acts. However i t may be that i n such cases use would be made of the idea expressed i n the Fawcett Casein? that there w i l l be considered to be a c o n f l i c t where the r e s u l t s of applying the two statutes would be d i f f e r e n t . I f so the 'double obedience' test would be modi f i e d into an ' i d e n t i c a l r e s u l t ' test which would, as Laskin observes, 1 4 8 be d i f f i c u l t to reconcile with 0'Grady v.  S p a r l i n g . 1 4 9 As both tests then have the weight of j u d i c i a l authority behind them the question i s immediately posed as to which one should be adopted. I t i s suggested that as a matter of the p r e d i c t a b i l i t y of the v a l i d i t y of the statutes the 'double obedience te s t ' should be applied. There are three reasons for t h i s ; f i r s t l y the more recent authorities such as 0'Grady v. Sparling; Fawcett's Case; Barfried's Case; and Smith v. The Queen 1 5 0 are i n favour of the idea of dual 147 op.cit. 148 op.cit. p.142. 149 op.cit. - i t would also be contrary to the Barfried  Case p r i n c i p l e discussed e a r l i e r . 150 a l l op.cit. 69. obedience. Secondly where a judge finds that a p r o v i n c i a l statute has a closer nexus with a S.92 power than with an overriding S.91 power he has made an evaluative judgment i n favour of the v a l i d i t y of the P r o v i n c i a l Act and he i s un l i k e l y to retr e a t from that assessment to say that although the Act i s v a l i d i t has no effe c t because of a c o n f l i c t with federal l e g i s l a t i o n under the head of power that he has just considered not to override the p r o v i n c i a l power. Indeed most of the cases c i t e d by Varcoe-^l i n respect of the overlapping doctrine r e a l l y turn on the question of whether the p r o v i n c i a l Act was rendered u l t r a v i r e s by an overriding S.91 enumerated power. F i n a l l y as pointed out previously the 'cover the f i e l d ' test involves three evaluative judgments v i z : - what i s the f i e l d , i s the federal l e g i s l a t i o n intended to be exhaustive of that f i e l d and has the provin c i a l l e g i s l a t i o n entered on that f i e l d . On the other hand the double obedience test' involves usually none and i n the Barfried s i t u a t i o n only one such judgment. As the o r i g i n a l 151 Varcoe op.cit. pp. 59 to 66 e.g.- Johanneson v. West  St. Paul D-952] 1 S.C.R. 292; C.P.R. v. Parish of Notre Dame  de Bonsecours 0-8993 A.C. 367; Madden v. Nelson & Fort  Shepperd Railway Q89$FJ A.C. 625; Toronto v. B e l l Telephone Co. Q.90^3 A.C. 52; A-G for Ontario v. Winner Q.954~l A.C. 542; John Deere Plow Co. v. Wharton [19133 AjC. 330; Great  West Saddlery Co. v. The King Q921J 2 A.C. 91, and A-G for Manitoba v. A-G for Canada op.cit. 70. aim of the tests i s to provide a solution to the evaluation question ( i . e . do the statutes clash?) i t i s scarcely l o g i c a l to substitute three evaluations for one.1^2 On the other hand i t would be naive to suggest that the double obedience test does not have problems i n application. Three major d i f f i c u l t i e s loom besides that of the i n f l i c t i o n of the double penalty mentioned e a r l i e r . Thus there i s the case of the permissive federal law and a prohibitory pro v i n c i a l law. Both statutes can be obeyed but i t seems to do violence to the idea of a paramount federal law for as a p r a c t i c a l matter i t w i l l be the p r o v i n c i a l enactment that w i l l be obeyed. Secondly there i s the case of a federal law permitting an act to be done subject to certain requisites and a p r o v i n c i a l law p r o h i b i t i n g i t completely. The t h i r d s i t u a t i o n i s where the federal law permits an act to be done subject to certain requisites and a p r o v i n c i a l law permits 152 The doctrine of 'cover the f i e l d ' i s p a r t i c u l a r l y suitable for A u s t r a l i a with i t s large area of concurrent powers of the Commonwealth and the States but even so the 'double obedience test' has not been e n t i r e l y abandoned. The test i s usually applied before the 'cover the f i e l d ' test i . e : - i f the statutes are incapable of double obedience there i s 'inconsistency' while i f they are so capable they may s t i l l be inconsistent i f the 'cover the f i e l d ' test i s not s a t i s f i e d ; vide Swift Australian Co. Pty. Ltd. v. Boyd  Parkinson (1962) 108 C.L.R. 189 at 207, and C o l l i n s v.  Charles Marshall Pty. Ltd. (1955) 92 C.L.R. 529 at 547 c i t e d by Lane - book - op.cit. p.238. 71. the same act subject to some other r e q u i s i t e s . I 5 3 The r e a l i s a t i o n that the evaluative judgment of nexus provides the answers to the questions posed i n the method of i n t e r p r e t a t i o n , permits the doctrines of interpretation and esp e c i a l l y those of s e v e r a b i l i t y and paramountey to be viewed i n th e i r true r o l e . When thi s evaluative judgment i s recognised i t only remains to select the factors that are l i k e l y to guide the court's actions i n order for some degree of p r e d i c t a b i l i t y to be attained i n the quagmire of constitu t i o n a l i n t e r p r e t a t i o n . These factors w i l l be largely dependent on the p a r t i c u l a r heads of matters i n S.91 and S.92 that are being considered. I t i s proposed therefore to use the criminal law power as an example and to consider some of the factors that guide the courts i n the interpretation of that power. 153 In A u s t r a l i a a l l three of these examples have been held to be cases of inconsistency vide P.H. Lane - book - op.cit. and the cases c i t e d therein at pages 229 and 230. The answer to the f i r s t s i t u a t i o n i n Canada would appear to be that there i s no c o n f l i c t vide A-G Ontario v. Bar f r i e d  Enterprises Limited op.cit. I I I . FACTORS IN INTERPRETING THE CRIMINAL LAW POWER The so c a l l e d 'criminal law power' i s contained i n S.91(27) of the B.N.A. Act which provides that "the exclusive L e g i s l a t i v e Authority of the Parliament of Canada extends to a l l matters coming within the Classes of Subjects next hereinafter enumerated; that i s to say (27) The Criminal Law, except the Constitution of Courts of Criminal J u r i s d i c t i o n , but including the Procedure i n Criminal Matters." Now the very existence of such a class of matters presupposes something d i s t i n c t i v e about the criminal law, i . e : there i s some area of a c t i v i t y that by i t s very nature f a l l s w ithin the criminal law. However under c l a s s i c a l common law theory t h i s i s simply not f a c t u a l l y accurate. "Crimes" have been defined as "acts or defaults which tended to the prejudice of the community and were forbidden by law on pain of punishment i n f l i c t e d at the s u i t of the Crown."1 I t has thus been t r u l y said that i t would be possible to end crime immediately merely be enacting that every act or default which i s now punishable at the s u i t of the Crown should no longer be so. I t i s r e a d i l y apparent that on this theory i t would be possible for the Dominion parliament to acquire 1 per P.G. Osborn 'A Concise Law Dictionary' 4th Edi t i o n 1954 p.108. 73. enormous j u r i s d i c t i o n simply by tacking a penalty at the s u i t of the Crown onto a s p e c i f i c action or default thereby cons t i t u t i n g such action or default,a crime and the Act one dealing with criminal law. I t was no doubt the recognition of th i s lack of i n t r i n  s i c l i m i t s to the power that prompted Viscount Haldane to lay down his confined view of the scope of 'criminal law' i n the Board of Commerce Case 2 where he referred to S.92(27) as "enabling the Dominion Parliament to exercise exclusive l e g i s l a t i v e power where the subject matter i s one which by i t s very nature belongs to the domain of criminal j u r i s p r u  dence." Such a view derived support from the existence of S.92(15)^ which provides, "In each Province the Legislature may exclusively make Laws i n r e l a t i o n to Matters coming within the Classes of Subject next hereinafter enumerated; that i s to say: (15) The Imposition of Punishment by Fine, Penalty or Imprisonment for enforcing any Law of the Province made i n r e l a t i o n to any Matter coming within any of the Classes of Subjects enumerated i n t h i s Section." Nevertheless the learned law lord was laying down an idea e s s e n t i a l l y foreign to English jurisprudence where often 2 [19223 A.C. 191. 3 of the B.N .A. Act. 74. the same action i s both a t o r t and a crime e.g:- the stealing of another person's goods or the physical s t r i k i n g of another person. This was pointed out by Lord Atkin i n P.A.T.A. v. A-G for Canada 4 thus:- "Criminal Law connotes only the qua l i t y of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal q u a l i t y of an act cannot be discerned by i n t u i t i o n ; nor can i t be discovered by reference to any standard but one: Is the act prohibited with penal conse quences? Morality and c r i m i n a l i t y are far from co-extensive; nor i s the sphere of c r i m i n a l i t y necessarily part of a more extensive f i e l d covered by morality unless the moral code necessarily disapproves of a l l acts prohibited by the State, i n which case the argument moves i n a c i r c l e . " On the authority of t h i s case together with A-G for Ontario  v. Hamilton Street Railway; 5 A-G for B r i t i s h Columbia v.  A-G for Canada;^ and Lord's Day A l l i a n c e v. A-G for B r i t i s h  Columbia^ the Haldane confined concept of criminal law i s now to be regarded as rejected. 4 op.cit. at p.324. 5 0-903] A.C. 324. 6 Reference re S.498A of the Criminal Code Case 0-937) A.C. 368. 7 0-959] S.C.R. 497. 75. With the r e j e c t i o n of t h i s concept the only l i m i t on the criminal law power was the necessity for a penalty at the i n s t i g a t i o n of the State for disobedience. However the courts have expressly denied that the mere imposition of a penalty for f a i l u r e to comply with a statutory enactment renders that enactment criminal law either from the federal p o s i t i o n ^ or from that of the Provinces. 9 Hence the courts have been faced with making an evaluative judgment as to whether an impugned statute has a s u f f i c i e n t nexus to a head of power which head of power has no i n t r i n s i c l i m i t s or d e f i n i t i o n a l c r i t e r i a . I t i s t h i s lack of osten s i b l e l i m i t s that makes the criminal law power so useful as an example of a f a c t o r i a l approach to c o n s t i t u t i o n a l interpretation for i t e f f e c t i v e l y denies to the court a close reliance on a p r i o r i deductive reasoning. This i s not to say that the interpretation of the criminal law power i s i n fact more evaluative than the interpretation of other parts of sections 91 and 92 but only that i t i s more r e a d i l y apparent i n the case of criminal law that the courts are being evaluative or selective and not deductive. 8 Toronto E l e c t r i c Commissioners v. Snider op.cit. see also A-G Ont. v. Reciprocal Insurers Ltd. op.cit. 9 0'Grady v. Sparling op.cit. 76. The broad general categories which act as the factors that w i l l lead the court to a p a r t i c u l a r decision on a question involving S.91(27) are the construction of the impugned Act, i t s o v e r a l l purpose and i t s d i r e c t and immediate e f f e c t . By construction of the statute i s meant the imposi tion of penalties, the number of sections without such sanctions and the manner of expression of the statute. Whilst i t i s true that the mere fact that an Act imposes penalties does not make i t f a l l within S.91(27) either from a federal or a p r o v i n c i a l aspect, no federal statute that did not have some form of immediate sanction would f a l l inside the subsection's ambit. Conversely a p r o v i n c i a l Act containing no penalties w i l l not be held u l t r a v i r e s as being on criminal law. As a c o r o l l a r y to this the number of clauses or sections with sanctions attached thereto w i l l be an inducement to categorisation. Thus the more clauses with sanctions there are, the more l i k e l y the statute i s to be held to be criminal law. Furthermore the manner of expression of the statute i s a guide. Where the Act exhibits the idea of p r o h i b i t i n g a certain action i t i s more l i k e l y to be held to be criminal law than otherwise. This factor i s however very weak at i t s best as there are numerous examples of p r o v i n c i a l l e g i s l a t i o n that ex facie are criminal statutes and several instances of 77. 'regulation' by means of an absolute p r o h i b i t i o n subject to exceptions that have been upheld as within S.91(27).^ The d i s t i n c t i o n between d i r e c t and immediate effect and ov e r a l l purpose i s one between the re s u l t s of an action and the aims thereof. Lord Sumner i n the P r o v i n c i a l Sale of  Shares Case^l declared that i n determining the nature and character of l e g i s l a t i o n one examines the effe c t thereof and not i t s purpose. These words were adopted by Estey J. i n his dissenting judgment i n Johnson v. A-G for Alberta-*-2 where he held that the Alberta Slot Machine Act, 1942 was v a l and by Cartwright J. i n A-G for Canada v. Readers' Digest  Assoc.(Canada) Ltd.13 Such an attitude represents a f a i l u r e to appreciate the true nature of the decision being given. I t i s not a p r i o r i but i s evaluative. There i s not one single true nature and character of the l e g i s l a t i o n as the question of true nature and character i s a value judgment and hence there can be many di f f e r e n t opinions each one of which could lead to a di f f e r e n t r e s u l t i n terms of whether 10 See e.g:- Re Race Tracks and Betting (1921)49 O.L.R. 387 and 0'Grady v. Sparling op.cit. 11 A-G for Manitoba v. A-G for Canada 0-929^ A.C. 260 at 268. 12 p.954] S.C.R. 127 at p. 142. 13 op.cit. p.793. 78. the l e g i s l a t i o n f a l l s under S.91 or S.92. 1 4 Once this i s grasped i t becomes absurd to deny to the court the use of any aid to a r r i v i n g at an informed opinion as to whether the statute has a s u f f i c i e n t nexus to i t s head of power. Accordingly i f purpose of the statute i s a help i n reaching such an opinion i t should be u t i l i s e d . Moreover the P r i v y Council and Canadian courts have always looked to statutory purpose and i t has been a decisive factor i n numerous cases. For example i n A-G for Alberta v. A-G for Canada 1 5 Lord Maugham L.C. i n d e l i v e r i n g the advice of the P r i v y Council s a i d 1 6 "The next step i n a case of d i f f i c u l t y w i l l be to examine the e f f e c t of the l e g i s l a t i o n ..... , A closely si m i l a r matter may also c a l l for consideration, namely, the object or purpose of the Act i n question." Again i n Lymburn v. Mayland 1 7 the P r i v y Council i n upholding the Alberta Security Frauds Prevention Act (1930) was of the o p i n i o n : 1 8 "There i s no reason to doubt that the 14 Restated - the decision i s not as between r i g h t and wrong but between one opinion and another. 15 Alberta Bank Taxation Case op.cit. 16 i b i d p.130. 17 [1932] A.C. 318. 18 i b i d p.324. 79. MAIN OBJECT 1 9 sought to be secured i n t h i s part of the Act i s " S i m i l a r l y Lord Macnaghten i n A-G Manitoba v. Manitoba Licence Holder's A s s o c i a t i o n z u declar ed21 "In l e g i s l a t i n g for the suppression of the liquor t r a f f i c the object i n view i s the abatement or. prevention of a l o c a l e v i l rather than the regulation of property and c i v i l r i g h t s . " Yet another example i s the dictum of Locke J. i n 99 Johnson v. A-G Alberta - " i n essence the Act was directed against gambling ..... In 1935 when the Slot Machine Act was re-enacted i t s purpose was made even more abundantly clear and Cartwright J. i n the same case stated "the conclusion appears to me to be inescapable that the main object of the Act i s " 23 These statements selected at random show that the courts have been concerned with purpose and have not applied Lord Sumner's dictum. Furthermore there are two addi t i o n a l reasons why purpose i s a matter that should guide the court's decision. In the f i r s t place one of the cardinal rules of statutory 19 i t a l i c s mine - author. 20 0-902] A.C. 73. 21 i b i d p.79. 22 op.cit. p.153. 23 i b i d p.164. 80. interpretation i s the Mischief Rule. Indeed as Professor Friedmann has pointed out24 "The mischief r u l e expresses both the o l d e s t 2 5 a n d the most modern approach to statutory- i n t e r p r e t a t i o n . " Now the mischief r u l e requires that one should ascertain what was the mischief or e v i l or wrong that parliament was attempting to remedy i n order to interpret the Act i . e : - i t requires the ascertaining of the object or aim or purpose of the l e g i s l a t i o n . Thus Lord Sumner's approach runs contrary to t h i s general method of interpre t a t i o n . Secondly there i s the case of 'colourable l e g i s l a t i o n ' . I t i s clear that legislation that i s i n form within power but which i s i n actual v i o l a t i o n of c o n s t i t u t i o n a l l i m i t s w i l l not be upheld but w i l l be declared u l t r a v i r e s as being a mere sham, a pretence, a colourable d e v i c e . 2 6 Thus the l e g i s l a t u r e cannot do i n d i r e c t l y what i t i s precluded from doing d i r e c t l y . 2 7 A l l t h i s concept expresses i s the idea 24 W. Friedmann - A r t i c l e - 'Statute Law and I t s Inter pretation' (1948) 26 Can. Bar Rev. 1277 at 1279. 25 I t i s derived from Heydon's Case i n 1584. 26 vide Lord Atkin i n Ladore v. Bennett Cl939] A.C. 468 at 482. 27 vide Madden v. Nelson & Fort Shepperd Railway op.cit. p.627-8. 81. that an u l t r a v i r e s purpose cannot be achieved s u r r e p t i  t i o u s l y . Hence i t i s clear that this l i n e of authority i s also contrary to Lord Sumner's proposition. I f i t i s recognized that purpose or object of the Act i n question i s a factor guiding the courts i n their evaluative judgment and that evidence i s able to be introduced i n respect of such object or purpose,28 the next step i s to ascertain what i s the type of object or purpose that w i l l tend to make the courts lean towards deciding the evaluative question i n a p a r t i c u l a r way. Rand J. i n the Margarine  Case^ 9 talked-^ of "some e v i l or injurious or undesirable eff e c t upon the public against which the law i s directed" and again i n Johnson v. A-G for A l b e r t a ^ 1 of a "public or community e v i l " . In Russell v. The Queen^2 the reference was to laws "designed for the promotion of public order, safety or morals" while Cartwright J. i n Johnson v. A-G  for Alberta-^ spoke of "the interests of public morality". 28 See supra Section I I & generally P.H. Lane 'Facts and Constitutional Law' op.cit. 29 op.cit. 30 i b i d p.49. 31 op.cit. p.137. 32 op.cit. p.839 33 op.cit. p.164. 82. There are numerous further examples that could be g i v e n . 3 4 The actual community interests supported i n these cases were:- control of gambling by forbidding s l o t machines, 3 5 adulteration of dairy products, 3 6 adulteration of meat products. 3 7 I t i s clear from these cases that the relevant purpose i s the safeguarding of public morality, the ensuring of public safety or the preventing of a community e v i l . In applying the purpose of a statute as a factor i n the deter mination of i t s c o n s t i t u t i o n a l v a l i d i t y i t i s important to keep the e n t i t y that passed the Act f i r m l y i n mind as the strength of purpose varies according to whether i t i s a federal or p r o v i n c i a l Act that i s being considered. I t i s w e l l established that a federal Act the purpose of which i s not to safeguard public morals, ensure public safety or prevent a community e v i l w i l l be held to be outside S.91(27). Thus i n the Margarine Case 3 8 the absence of a benefit to public health proved f a t a l . Again the 34 e.g:- Trueman J.A. i n R. v. Perfection Creameries Ltd. Cl93sQ 2 W.W.R. 139 - 'public e v i l ' and. Macdonald J.A. i n Standard Sausage Co. v. Lee [1933] 4 D.L.R. 501 -'public i n j u r y ' . 35 Johnson's Case op.cit. 36 R. v. Perfection Creameries Ltd. op.cit. 37 Standard Sausage Co. v. Lee op.cit. 38 op.cit. 83. 39 courts could not f i n d an appropriate object i n Snider's Case or i n 40 the Reciprocal Insurer's Case and the l e g i s l a t i o n was struck down. Purpose has also been used to uphold federal l e g i s l a t i o n . Thus i n R. v. Perf e c t i o n Creameries L t d . ^ and Standard Sausage Co. v. L e e ^ the l e g i s l a t i o n was upheld as being aimed at the protection of pu b l i c health by preventing the adulte r a t i o n of food. The purpose factor i s thus strong when used i n r e l a t i o n to federal l e g i s l a t i o n e i t h e r negatively or p o s i t i v e l y . From a p r o v i n c i a l standpoint purpose i s considerably weaker as a determining f a c t o r . There have been decisions s t r i k i n g down p r o v i n c i a l l e g i s l a t i o n with a 'criminal law 1 purpose. Thus for example i n A-G for 43 Ontario v. Koynok. l e g i s l a t i o n for preventing the p u b l i c a t i o n of obscene 44 matter was held to be u l t r a v i r e s the province. On the other hand the courts 39 o p . c i t . 40 o p . c i t . 41 o p . c i t . 42 o p . c i t . 43 [1941] 1 D.L.R. 548. 44 In Johnson v. A-G Alberta, o p . c i t . , three of seven Judges of the Supreme Court of Canada (Kerwin, Taschereau and Estey JJ.) held pro v i n c i a l l e g i s l a t i o n i n h i b i t i n g gambling by p r o h i b i t i n g s l o t machines u l t r a v i r e s . Rand J . held the l e g i s l a t i o n merely inoperative, but there are i n d i c a t i o n s i n his judgment that he might have been prepared to f i n d i t u l t r a v i r e s the province. 84. have tended to lean i n favour of p r o v i n c i a l l e g i s l a t i o n that prima facie was passed for an inappropriate purpose where i t has been dealing with an a c t i v i t y that i n the absence of the imposition of penalties would f a l l within the provin c i a l ambit. In these cases the courts have characterised the l e g i s l a t i o n as being for the purpose of governing or regulating the a c t i v i t y and not as being for the protection of public morality or the ensuring of public safety or the preventing of a community e v i l . Thus i n P,.E.I, v. Egan 4 5 a p r o v i n c i a l statute provided for the suspension of a motor driver's licence where the holder drove a vehicle w h i l s t intoxicated. After three offences the licencee was pro h i b i t e d from holding such a licence. The Supreme Court of Canada held that the Province had the power to prescribe the conditions and manner of use of the highway and t h i s included a l i c e n s i n g system. I t then upheld the l e g i s l a t i o n holding that i t s purpose and effect was to regulate and govern the conditions under which licences were granted, suspended or f o r f e i t e d . Again i n 0'Grady v. S p a r l i n g ^ 6 a Manitoba Act providing for d r i v i n g without due care and attention to be an offence was upheld as being l e g i s l a t i o n for the purpose 45 0-94fJ S.C.R. 396. 46 op.cit. 85. or object of the regulation and control of t r a f f i c on the highways. S i m i l a r l y i n Reference re S.92(4) of the Vehicles  Act 1957 Saskatchewan^ a p r o v i n c i a l statute requiring a person to submit to having a sample of his breath taken i f he was suspected of dr i v i n g under the influence of alcohol was upheld as being for the purpose of administering the highways. Probably the locus classicus of th i s kind of approach i s M i l l a r v. The Queen^8 i n that case a licence was granted to M i l l a r to carry on a dance h a l l . The licence was subject to a condition that the holder should not permit gambling on the premises and was issued pursuant to a municipal by law. Gambling was conducted on M i l l a r ' s premises without h i s knowledge and he was prosecuted for breaking the by law. On appeal i t was argued that the by law was u l t r a v i r e s as i t was dealing with criminal law. The Manitoba Court of Appeal held that the by law was i n t r a v i r e s . In the course of his judgment Beaubien J.A. stated:49 "The test (of whether the Act i s i n r e l a t i o n to criminal law) to be applied i t seems to me i s c l e a r l y indicated i n R. v. 47 D-9583 S.C.R. 608. 48 C1954D 1 D.L.R. 148. 49 i b i d at pages 161 & 162. 86. Watson.^ Street J . , whose dissenting judgment was upheld on appeal s a i d : 5 1 "Is i t an Act constituting a new crime for the purpose of punishing that crime i n the interest of public morality? Or i s i t an Act for the regulation of the dealings and r i g h t s of cheese makers and their patrons with punishments imposed for the benefit of the former? I f i t i s found to come under the former head, I think i t i s bad as dealing with criminal law; i f under the l a t t e r I think i t i s good as an exercise of the r i g h t conferred on the Province by the 92nd section of the B r i t i s h North America Act." In the case of Jones v. Vancouver 5 2 a section of a by law of the c i t y provided that "no keeper of a b i l l i a r d and pool room s h a l l permit or allow any person to play or have part i n any game i n any b i l l i a r d , pool or bagatelle table upon the re s u l t of which there i s any wager or take was by a unanimous judgment of the B r i t i s h Columbia Court:of Appeal held i n t r a v i r e s of the powers of the c i t y to enact. Macdonald C.J.A. held that "the prohibiton of betting (contained i n the section) was c l e a r l y aimed at regulation and therefore i n t r a v i r e s of the council". G a l l i h e r J.A. 50 (1890) 17 O.A.R. 221. 51 17 O.A.R. 58 at 64. 52 (1920) 51 D.L.R. 320. 87. expressed the same view and McPhillips J.A. held that the by-law was i n the subject matter of "regulating and governing". M In my view the sole object of the by-law i s to regulate and govern the mode of operation of a licensed dance h a l l , namely, a p a r t i c u l a r trade or business car r i e d on i n the Cit y of Winnipeg. I t i s not l e g i s l a t i o n i n r e l a t i o n to criminal law and that being so i t i s within the competence of the c i t y council i n the sphere of 'Municipal I n s t i t u t i o n s i n the Province', 'Property & C i v i l Rights i n the Province' and 'Generally a l l matters of a merely l o c a l or private Nature i n the Province' S-SS (8),(13) and (16) of S.92 of the B.N.A. Act." Whilst there are cases which are d i f f i c u l t to reconcile with t h i s j u d i c i a l tendency as they have struck down l e g i s l a t i o n that could have been regarded as being for a regulatory or governing purpose they have usually been decided on the basis that the purpose of the statutes was to augment the criminal code.53 A l l these cases whilst revealing the inadequacies and indeterminacies of the 'purpose factor' do not negate 53 Vide St. Leonard v. Fournier (1956) 115 Can. C.C. 366 and H u r r e l l v. Montreal fl.963j Que.P.R. 89 where the l e g i s l a t i o n was held u l t r a v i r e s because i t s e f f e c t was to supplement the Code. 88. i t s u s e . 5 4 In fact they support i t for i t i s apparent that had the court i n P.E.I, v. Egan; 5 5 O'Grady v. S p a r l i n g ; 5 6  Reference Re S.92(4) of the Vehicles A c t ; 5 ^ M i l l a r v. The Queen; 5 8 R. v. Watson 5 9 or Jones v. Vancouver 6 0 found that the purpose of the Act was the protection of public morals, the ensuring of public safety or the preventing of a com munity e v i l i t would have held the Act before i t to be u n c o n s t i t u t i o n a l . 6 1 54 Thus i n A-G Ont. v. Koynok op.cit. i t was stated at p.551 "Although the Provinces have the power to impose punishment by f i n e , penalty or imprisonment for enforcing any law of the Province under S.92 that section does not include public morality. Parliament alone can define crime and enumerate the acts which are to be prohibited and punished i n the interests of public morality." See also Re Race Tracks & Betting (1921) 49 O.L.R. 339 per Middleton J. and R. v. Hayduk [1938] O.R. 653. 55 op.cit. 56 op.cit. 57 op.cit. 58 op.cit. 59 op.cit. 60 op.cit. 61 See also Lieberman v. The Queen Q-963] S.C.R. 643 where a municipal by law closing down bowling a l l e y s on Sundays was held not to be criminal law as i t was not directed to preventing the profanation of the Sabbath and hence was not aimed at the protection of public morals. - Also R. v. Nat B e l l Liquors Ltd. 0-922] 2 A.C. 128. On the c o n s t i t u t i o n a l problems involved i n 'Sunday' l e g i s l a t i o n generally see K.M. Lysyk - A r t i c l e "Constitutional Aspects of Sunday Observance Law": Lieberman v. The Queen" (1964) U.B.C .L.Rev. 59. 89. The major defect i n applying purpose of the l e g i s l a t i o n as a factor i s i t s indeterminacy. Is the purpose to be ascertained subjective or objective? The courts i n applying the Mischief Rule have always attempted to f i n d some objec t i v e purpose ( v i z : - the intention of parliament) and have therefore excluded e x t r i n s i c evidence such as parliamentary speeches as going only to a subjective purpose. I t i s suggested that i n c o n s t i t u t i o n a l interpretation the purpose being sought should be subjective, i . e : the actual intention of the l e g i s l a t u r e i n passing t h i s p a r t i c u l a r Act. The adoption of a subjective approach does not mean the disre garding of effect as a guide to purpose as i n most cases at least parliament w i l l have been able to foresee the effects of i t s actions and accordingly can be taken to have wished those effects to have occurred. I t has e a r l i e r been pointed out that i n the context of j u d i c i a l review where a purposive power i s being interpreted evidence would be admissible to show what the most l i k e l y effects of the l e g i s l a t i o n would be as an i n d i c a t i o n of parliamentary purpose or object. To t h i s extent then the separate factors of purpose and ef f e c t are linked. When i t i s r e a l i z e d that the evidentiary v e i l i s not inscrutable and that evidence can be adduced that w i l l tend to show a d e f i n i t e object or purpose i n passing the l e g i s l a t i o n ^ purpose w i l l assume a more stable 90. p o s i t i o n and be less dependent on the values of the p a r t i  cular judges involved. I t i s submitted therefore, f i r s t l y , that although purpose or object i s vague and indeterminate i t s existence and nature i s capable of being ascertained much more accurately than at present and secondly that i t i s useful today and a f o r t i o r i i n the future as a factor, though not a conclusive factor i n guiding the court's decision as to nexus. Turning to the d i r e c t and immediate eff e c t as a factor i n determining the court's decision. Where the Act i n question i s dealing with an action that has previously been the subject of criminal sanctions the courts w i l l be l i k e l y to f i n d that i t i s dealing with criminal law even where the l e g i s l a t i o n i s l e g a l i s i n g rather than proscribing. The converse however does not so apply so that an act previously untouched by the criminal law may be dealt with by it.62 The scope of the criminal law power can be viewed as r e s t i n g i n three areas. The f i r s t of these could be designated as central core pr o h i b i t i o n s , the second as the central core abo l i t i o n s and the t h i r d as the dynamic or developing sphere. By central core prohibitions i s meant those things that have t r a d i t i o n a l l y 62 See P.A.T.A. v. A-G Can, op.cit. and Toronto Railway  v. The King [19171 A.C. 630. 91. been regarded as criminal law i n the common law world (e.g: murder, burglary and robbery) and e s p e c i a l l y the actions proscribed i n Canada i n the past. By central core aboli t i o n s i s meant the relaxing of the prohibitions of actions contained i n the central core prohibitions and by the dynamic or developing sphere i s meant the creation of new offences. Such a c l a s s i f i c a t i o n i s i t s e l f dynamic as matters contained i n the dynamic or developing sphere gradually f a l l into the central core prohibitions and i f they are then modified or relaxed they come inside the central core a b o l i t i o n s . The penumbra area of doubt^ ± s then, the only area where the scope of S.91(27) i s i n question i n r e l a t i o n to federal statutes though because of the double aspect doctrine a l l three areas are opened up when the v a l i d i t y of p r o v i n c i a l l e g i s l a t i o n i s i n issue. In the federal sphere i t i s w e l l established that the relationship between the immediate effect of the Act and i t s 63 For the idea of umbra and penumbra from which t h i s c l a s s i f i c a t i o n i s drawn see H.L.A. Hart - A r t i c l e - 'Positivism and the Separation of Law and Morals' 71 Harv.L.R. 593 and the r e b u t t a l thereof by L. F u l l e r - A r t i c l e - 'Positivism and F i d e l i t y to Law' 71 Harv.L.R. 630. 92. purpose cannot be too tenuous.64 Thus i f an Act has a s u f f i c i e n t purpose for the court to lean towards i t s v a l i d i t y t h i s tendency w i l l be overcome i f the di r e c t e f f e c t i s something quite d i f f e r e n t with only a tenuous connection with the purpose. Such a doctrine f l i e s i n the face of the maxim of j u d i c i a l review that i t i s for the l e g i s l a t u r e to choose the means of carrying out a grant of power and the courts should not "inquire whether more or less d r a s t i c means could have been chosen by the l e g i s l a t u r e or whether the theories i n s p i r i n g the ..... measure ..... are sound or whether the measures taken by parliament are regarded by those subjected to them as ef f e c t i v e i n practice or whether some other means or method might have been chosen by the l e g i s l a t u r e i n carrying out i t s object."65. However as Professor Lane has pointed out66 the court does inquire i n a question of power "whether the means 64 e.g:- In Re Board of Commerce Act [1922] 1 A.C. 191; O i l Chemical and Atomic Workers International Union Local  16-601 v. Imperial O i l Ltd. [L963] S.C.R. 584. Conversely i t i s also clear that had the court not decided i n Robertson  and Rosetanni v. The Queen [1963] S.C.R. 651 that the ef f e c t controlled the purpose the Act would have been held to be u l t r a v i r e s . 65 P.H. Lane - A r t i c l e - 'Facts i n Constitutional Law' op.cit. p.109. 66 i b i d p. 112. 93. chosen by the l e g i s l a t u r e are appropriate ( i n the sense of having an inherent tendency) to a relevant end or subject matter f a i r l y within power," and facts are admissible as evidence of t h i s . Thus i n In Re Board of Commerce Act  and the Combines & F a i r Prices Act 191967 i t was attempted to j u s t i f y the Act under both the residuary federal power and under the trade and commerce power. The P r i v y Council held that the method chosen was so gross an i n f r a c t i o n of S.92(13) that the matter was i n 'pith and substance' not within S.91(2). In this area i t i s of l i t t l e importance what the courts say they are doing and i n r e a l i t y they do look at method or means i n making their evaluative judgment. A c l a s s i c a l example of the connection between the le g a l effect and the purpose being too strained i s Mackay v. The Queen68 67 op.cit. 68 D-965D S.C.R. 798. - i n the interpretation of trade and commerce power S.91(2) the courts have not been prepared to uphold a statute the purpose of which was i n t r a v i r e s but the eff e c t of which had too tenuous a connection with that purpose. Thus Duff J. i n R. v. Eastern Terminal Elevator Co. D-925] S.C.R. 434 said at p.446, " I t i s undeniable that the one p r i n c i p a l object of t h i s Act i s to protect the external trade i n grain and espe c i a l l y i n wheat.... I do not think i t i s f a i r l y disputable...., that the Dominion possesses l e g i s l a t i v e powers which would enable i t e f f e c t i v e l y . . . . . t o regulate this branch of external trade..... I t does not follow that i t i s within the power of parliament to accomplish t h i s object by assuming as this l e g i s l a t i o n does, the regulation i n the provinces of p a r t i c u l a r occupations." 94. where i t was stated that had the court been unable to hold that the Act did not include federal e l e c t i o n signs i t would have held the P r o v i n c i a l Act to be i n v a l i d even though i t s purpose was to preclude certain uses of property, a matter c l e a r l y within S.92, on the basis that the ef f e c t would have been to encroach on an area where the Dominion had exclusive power v i z : - the control of federal elections. The converse to the main proposition i s equally true so that where the leg a l e f f e c t i>s within but the purpose i s outside power the l e g i s l a t i o n i s i n v a l i d as being colourable at least from a federal point of view. Thus i n the Reciprocal Insurer 1s Case_69 t h e c o u r t found that the le g a l e f f e c t was to make the s o l i c i t i n g or accepting of any insurance other than on behalf of a company registered under the Insurance Act, 1917 an indictable offence. Yet i t held the l e g i s l a t i o n i n v a l i d as being for the purpose of giving compulsory force to the regulative measure of the Insurance Act. A d i f f e r e n t answer to a similar type of l e g i s l a t i v e scheme was given i n A u s t r a l i a i n the F i r s t Uniform Tax Case? 0 where the High Court held each of four Acts to be i n t r a v i r e s and ignored the general 69 R. v. Reciprocal Insurer's Ltd. op.cit. 70 South A u s t r a l i a v. The Commonwealth (1942) 65 C.L.R. 373. 95. purpose and scheme of the l e g i s l a t i o n which was to transfer e f f e c t i v e control of a l l income taxation to the Commonwealth. In Canada the courts have taken a lenient view of p r o v i n c i a l cunning as both 0*Grady v. Sparling?-*- and Re V a l i d i t y of  S.92(4) of the Vehicles Act?2 could with l i t t l e e f f o r t be regarded as l e g i s l a t i o n for u l t e r i o r motives.73 In the sphere of dir e c t effect both federal and provin c i a l l e g i s l a t i o n can be preventive. That i s both le g i s l a t u r e s can pass statutes designed to prevent the occurrence of crime. Hence i n R. v. Nei 174 a federal Act providing for preventive detention of criminal psychopaths was upheld. The p r o v i n c i a l power was asserted by Duff J. i n Bedard  v. Dawson?^ i n the following manner:76 "The l e g i s l a t i o n 71 op.cit. 72 op.cit. 73 c/f. Reference Re Alberta Statutes [ l 9 3 8 3 S.C.R. 100 and Reference re S.16 of the Special War Revenue ActCl9423s.C.R. 429. 74 D-9573 S.C.R. 605. 75 Q 9 2 3] S.C.R. 681. 76 i b i d p.684 - again Locke J. i n Goodyear Tire & Rubber Co. of Canada Ltd. v. The Queen Q.956] S.C.R. 303 at p.308 said "The power to l e g i s l a t e i n r e l a t i o n to criminal law i s not r e s t r i c t e d i n my opinion to defining offences and providing penalties for the i r commission. The power of Parliament extends to l e g i s l a t i o n designed for the prevention of crime as wel l as to punishing crime." 96. impugned seems to be aimed at suppressing conditions c a l  culated to favour the development of crime. This i s an aspect of the subject i n which the Provinces seem free to l e g i s l a t e . I think the l e g i s l a t i o n i s not i n v a l i d . " I t i s i n t e r e s t i n g to note that Duff J. didn't f a l l into the error perpetrated by Estey J. i n his dissent i n Johnson  v. A-G for Alberta?? where the learned judge assumed tha t by holding the l e g i s l a t i o n to be preventive rather than punishing he had e f f e c t i v e l y removed i t from the scope of S.91(27). Thus he s t a t e d 7 8 "The effe c t of the l e g i s l a t i o n i s to prevent rather than to punish. I t i s therefore quite d i f f e r e n t from that which i s c l a s s i f i e d as criminal law under S.91(27)." Properly viewed this i s an area where the double aspect doctrine i s applicable for i t would seem that both l e g i s l a t u r e s can l e g i s l a t e as to the prevention of crime from d i f f e r e n t sources of power. The p r i n c i p l e that the Province cannot relax or sup plement punishment provided by a federal Act i s o f t quoted.? 9 Despite the firmness with which t h i s r u l e i s enunciated 77 op.cit. 78 i b i d p. 143. 79. vide for example Re Morrison & Kingston Q938] O.R. 21; R. v. Stanley (1952)104 Can.C.C. 31 and Boyce v. The Queen (1959) 22 D.L.R. (2d) 553. 97. the courts have not paid much i n the way of obeisance to i t . Thus the combined eff e c t of Green v. Livermore 8 0 and Kennedy v. Tomlinson 8 1 i s that a person charged under either a federal or a p r o v i n c i a l Act can be committed to a mental ho s p i t a l under a p r o v i n c i a l statute. Similarly the eff e c t of the p r o v i n c i a l Act i n 0'Grady v. S p a r l i n g 8 2 w a s to supplement the criminal code as was the ^effect of the statutes under consideration i n P.E.I, v. Egan 8 3 and Reference re  S.92(4) of the Vehicles A c t . 8 4 i n the l i g h t of these decisions the v a l i d i t y of the p r i n c i p l e can w e l l be doubted. However i t would be premature to r e t i r e the concept especially with regard to relaxation of a f e d e r a l l y imposed penalty as i n t h i s area i t seems clear that a p r o v i n c i a l Act that purported to d i r e c t l y lessen the burden would be struck down. 8 5 Furthermore i t would also appear to be good law that 80 0-940] O.R. 381. 81 (1959) 20 D.L.R. (2d) 273. 82 op.cit. 83 op.cit. 84 op.cit. 85 Even were i t to stand i t would be inoperative under the paramountey r u l e because i t would c o n f l i c t with the fed e r a l statute regardless of whether the 'double obedience' or the 'cover the f i e l d ' test was applied. 98. i f a province ac t u a l l y tacks on a supplementary penalty to a federal offence as d i s t i n c t from creating a similar offence and prescribing a penalty for that offence the p r o v i n c i a l enactment would be u l t r a v i r e s . Subject to these exceptions the rul e i s of l i t t l e help as an aspect of the factor of effec t i n determining the court's decision. F i n a l l y there i s a more l i m i t e d factor than construction, purpose and effe c t which w i l l a s s i s t a court i n deciding the question as to nexus. This i s the rule that where there are two interpretations of a statute one of which w i l l lead to i t s being u l t r a v i r e s and the other to i t s being i n t r a v i r e s the l a t t e r i nterpretation w i l l be adopted. In any case involving a statute the f i r s t question i s always whether the facts f a l l within the ambit of that statute and i t i s only when th i s has been decided i n the affirmative that any question as to the c o n s t i t u t i o n a l i t y or otherwise of the statute can be raised. Whilst this proposition i s easy to formulate i n the abstract there i s i n practice a feedback between the two questions so that where a court finds i t s e l f i n the po s i t i o n of wanting to hold the statute to be u l t r a v i r e s by reason of i t s applying to a p a r t i c u l a r set of facts i t w i l l i f possible support the l e g i s l a t i o n by holding that the p a r t i c u l a r facts are not covered by the 99. statute. Thus i n Mackay v. The Queen8^ a municipal by law was passed dealing with signs. Under t h i s by law which was enacted pursuant to a p r o v i n c i a l statute, a prosecution was launched against Mackay i n connection with a federal e l e c t i o n sign. The Supreme Court stated that i t would have found the by law to be u l t r a v i r e s had i t applied to federal election signs but i t was unnecessary to determine the question because on i t s 'proper' interpretation the by law did not so apply. This factor i s not confined to p r o v i n c i a l statutes and a s i m i l a r decision to Mackay's Case 8 7 was given i n Transport O i l Co. Ltd. v. Imperial O i l Co. L i m i t e d 8 8 when the court was dealing with a federal statute. However th i s factor also i s not decisive as was shown i n De Ware  v. R. 8 9 where, dealing with New Brunswick l e g i s l a t i o n with respect to s l o t machines, some of the majority judges held that the Act was u l t r a v i r e s and others that i t s terms did not apply to the p a r t i c u l a r machine i n the case. By r e l y i n g on these factors the facade of formulae may be cast aside. No doubt the charge may be l e v e l l e d that 86 op.cit. 87 op.cit. 88 Cl935] O.R. 215. 89 C19543 S.C.R. 182. 101. Precedent affects the decision i n two ways. F i r s t l y i t constitutes a factor i t s e l f and secondly i t provides a guide as to the factors that determined the decisions of previous courts on sim i l a r matters. In so far as i t constitutes a factor i t s e l f precedent establishes c e r t a i n basic propositions which form the l i m i t s of the f a c t o r i a l approach. These l i m i t s are only as strong as the strength of the previous decisions and i n the ultimate analysis w i l l be able to be overruled. Examples of such l i m i t s are the rule that i t i s within p r o v i n c i a l power to enact a statute that provides for the suspension of motor driver licences for drunken d r i v i n g and the rule that federal l e g i s l a t i o n i s not criminal law merely because i t imposes penalties for the commission or omission of certain acts. The evaluative nature of the process of c o n s t i t u t i o n a l interpretation requires a more f l e x i b l e j u d i c i a l attitude with regard to the admission of evidence of c o n s t i t u t i o n a l facts especially where a purposive power i s involved. Thus the present rul e against the use of some e x t r i n s i c material should be li m i t e d to those sources already excluded by j u d i c i a l authority and every opportunity taken to confine i t s operation s t i l l further. 100. one has merely replaced one indeterminacy with another but a r e a l i z a t i o n of the evaluative nature of the judgment being made coupled with the adducing of evidence pertinent to these factors and perhaps some j u d i c i a l acknowledgment of the nature of the question cannot help but lead to a more predictable p o s i t i o n i n r e l a t i o n to a power which by i t s h i s t o r i c a l nature should never have been l i s t e d as a proper class of subject matter i n a c o n s t i t u t i o n a l d i v i s i o n of powers. IV. CONCLUSION The B.N.A. Act then, i s capable of supporting a consis tent method of interpretation based on making three enquiries. These enquiries are:- Is the statute i n question under one of the enumerations i n S.92? Is the statute under one of the enumerations i n S.91? and Is the statute within the residuary general power? The answers to these questions are not a p r i o r i or necessary 1 but are evaluative. Accordingly the formulae used by the courts w i l l not provide a solution and i t i s es s e n t i a l to look at the factors that underly each decision. 1 In the sense of there being only one 'proper' answer to be found by construing the B.N.A. Act and then seeing whether the statute comes within i t . On the f u t i l i t y of 'proper' meaning generally see H.L.A. Hart - A r t i c l e - 'Definition and Theory i n Jurisprudence' (1954) 70 .L.Q.R. 37. 102. The criminal law power provides a good i l l u s t r a t i o n of the use of a f a c t o r i a l approach to interpretation as i t has no h i s t o r i c a l l i m i t a t i o n s . In S.91(27) the prime factors beside precedent i t s e l f are the construction, effect and purpose of the impugned statute none of which i s i n d i v i  dually decisive, but do provide, when combined together, (especially with a wider admission of evidence as to purpose and effect) a more s o l i d basis for c o n s t i t u t i o n a l prediction than a r i g i d adherence to an empty s h e l l . Whilst t h i s whole approach reduces c o n s t i t u t i o n a l interpretation to the position of Oliver Wendell Holmes J r . ^ i z : - a prediction as to what the court w i l l do i n fact ) , the time i s surely r i p e for some attention to s t a b i l i t y of expectations i n a v o l a t i l e area of law. 2 2 O.W. Holmes J r . 'Path of the Law' (1897) 10 H.L.R. 457 at 461. 103. BIBLIOGRAPHY Books:- R. Cross - 'Evidence' 2nd E d i t i o n , 1963. H.R. Curlewis - 'Introduction to the Law of Evidence' 2nd Ed i t i o n - 2nd p r i n t i n g , 1954. J. Frank - 'Law and The Modern Mind' 6th p r i n t i n g , 1949. H.L.A. Hart - 'The Concept of Law' 1st E d i t i o n , 1961. P.H. Lane - 'Some P r i n c i p l e s and Sources of Australian Constitutional Law' 1st E d i t i o n , 1964. B. Laskin - 'Canadian Constitutional Law' 3rd E d i t i o n , 1966. P.G. Osborn - 'A Concise Law Dictionary' 4th Ed i t i o n , 1954. K. Olivecrona - 'Law as Fact' 1st E d i t i o n , 1939. J. Stone - 'Legal System and Lawyers' Reasonings' 1st E d i t i o n , 1965. F.P. Varcoe - 'The Constitution of Canada' - 1965. W.A. Wynes - 'Legislative Executive and J u d i c i a l Powers i n A u s t r a l i a ' 2nd E d i t i o n , 1956. P e r i o d i c a l A r t i c l e s : - W.W. Cook - ' S c i e n t i f i c Method and the Law' 13 American Bar Association Journal 303. J.A. Corry - 'The Use of L e g i s l a t i v e History i n the Interpretation of Statutes' (1954) 32 Can. Bar Rev. 624. S.A. De Smith - Book Review (1957) 20 M.L.R. 681. 104. S i r Owen Dixon - Inaugural Address (1952) 85 C.L.R. XI. W. Friedmann - 'Statute Law and I t s Interpretation' (1948) 26 Can. Bar Rev. 1277. L. F u l l e r - 'Positivism and F i d e l i t y to Law' 71 Harv.L.R. 630. H.L.A. Hart - 'Definition and Theory i n Jurisprudence' (1954) 70 L.Q.R. 37. - 'Positivism and the Separation of Law and Morals' 71 Harv. L.R. 593. O.W. Holmes, J r . - 'Path of the Law* (1897) 10 Harv. L.R. 457. P.H. Lane - 'Facts and Constitutional Law' (1963) 37 A.L.J. 108. - ' J u d i c i a l Review or Judgment by the High Court' 5 Syd.L.R. 203. W.R. Lederman - 'The Concurrent Operation of Federal and P r o v i n c i a l Laws i n Canada' (1962-63) 9 M c G i l l L . J . 185. B. Laskin - 'Peace, Order and Good Government Re Examined* (1947) 25 Can. Bar Rev. 1054. K.M. Lysyk - 'Constitutional Aspects of Sunday Observance L e g i s l a t i o n : Lieberman v. The Queen' (1964) U.B.C.L.Rev. 59. V.C. MacDonald - 'Constitutional Interpretation and E x t r i n s i c Evidence' (1939) 17 Can. Bar Rev. 77. G.D. Nokes - 'The Limits of J u d i c i a l Notice' (1958) 74 L.Q.R. 59. Symposium - 'The Criminal Law Power i n Canada' (1957) 15 U.of Tor.F.L.Rev. 1. 105. TABLE OF CASES CITED A-G Alberta v . A-G Canada (Alberta Bank Taxation Case) A-G Alberta v. A-G Canada (Alberta B i l l of Rights Act Case) A-G B r i t i s h Columbia v . Esquimalt & Nanaimo Railway A-G B r i t i s h Columbia v. A-G Canada (S.498A of the Criminal Code Case) A-G Canada v. Nyorak A-G Canada v. A-G B r i t i s h Columbia (Fish Canneries Case) A-G Canada v. A-G Alberta (Insurance Reference) A-G Canada v. Readers' Digest Assoc. (Canada) L t d . A-G Canada v. Western Higbie & Abion Investments Limited A-G Manitoba v . Manitoba Licence Hoders1 Assoc. A-G Manitoba v . A-G Canada (Sale of Shares Case) A-G Ontario v. Barfried Enterprises Limited A-G Ontario v . Winner A-G Ontario v. Koynok A-G Ontario v. Canada Temperance Federation [1939] A.C. 117 0947] A.C. 503 0956] A.C. 87 0937] A.C. 368 (1962) 33 D.L.R.(2d)373 0930] A.C. I l l 01916] 1 A.C. 588 0-961] S.C.R. 755 0945] S.C.R. 385 O902] A.C. 73 0929] A.C. 260 0963] S.C.R. 570 0954] A.C. 542 0941] 1 D.L.R. 548 0-946] A.C. 193 106, A-G Ontario v. A-G Canada (Voluntary Assignments) A-G Ontario v. Reciprocal Insurers A-G Ontario v. A-G Canada (Local Prohibitions) A-G Ontario v. Hamilton Street Railway A-G Saskatchewan v. A-G Canada (Farm Security Act) Re Regulation & Control of Aero nautics Alberta Statutes Reference Amalgamated Society of Engineers v. Adelaide Steamship Company Limited Anthony v. A-G Alberta Assam Railways & Trading Co. v. Gommis. of Inland Revenue Australian A g r i c u l t u r a l Co. v. Federated Enginedrivers and Firemans 1 Association of A'asia 0-894] A.C. 189 0-924] A.C. 328 0896] A.C. 348 O903] A.C. 324 0-949] A.C. 110 [1932] A.C. 54 0938] S.C.R. 100 (1920) 28 C.L.R. 129 0943] S.C.R. 320 0-935] A.C. 445 (1913) 17 C.L.R. 274 Barbat v. A l l e n Bedard v. Dawson Boyce v. The Queen Burnet v. Coronado O i l & Gas Co. C.P.R. v. A-G B r i t i s h Columbia C.P.R. v. Parish of Notre Dame de Bonsecours 7 Ex. 667 0-923] S.C.R. 681 (1959) 22 D.L.R.(2d) 553 (1932) 285 U.S. 393 0-950] A.C. 122 0899] A.C. 367 107. Cairns Construction Ltd. v. Government of Saskatchewan Citizens Insurance Coy. v. Parsons Clyde Engineering Co. Ltd. v. Cowburn Commission du Salaire Minimum v. B e l l Telephone Co. of Canada Board of Commerce Case Cushing v. Dupuy Re Debt Adjustment Act De Ware v. The Queen Eastern Photographic Materials Co. v. Comptroller General of Patents Reference re the Farm Products Act Fawcett v. A-G Ontario Forbes v. A-G Manitoba Fort Francis Pulp & Paper Co. v. Manitoba Free Press Gibbons v. Ogden Gold Seal Ltd. v. Dominion Express Co. Ltd. Goodyear Tire & Rubber Co. of Canada Ltd. v. The Queen Gosselin v. The Queen (1958) 16 D.L.R.(2d) 465 (1881) 7 App.Cas. 96 (1926) 33 C.L.R. 466 (1967) 59 D.L.R.(2d) 145 0-922] A.C. 191 5 App.Cas. 409 0.943] A.C. 356 0954] S.C.R. 182 Q.898] A.C. 517 0-957] S.C.R. 196 019643 S.C.R. 625 Q9373 A.C. 260 Q9233 A.C. 695 (1824) 22 U.S. 1 (1921) 62 S.C.R. 424 Q19563 S.C.R. 303 33 S.C.R. 255 In Re Gorham Grand Trunk Railway Case Gray v. Dalgety Limited Great West Saddlery Co. v. The King Green v. Livermore Hodge v. The Queen Holland v. Jones Home O i l Distributors Ltd. v. A-G B r i t i s h Columbia H u r r e l l v. Montreal In re the Insurance Reference Japanese Canadians v. A-G Canada Johanneson v. West St. Paul John Deere Plow Co. v. Wharton Johnson v. A-G Alberta Jones v. Vancouver Ju l i u s v. Oxford Kennedy v. Tomlinson The King v. Eastern Terminal Elevator Co. Labour Conventions Case 108. 5 Ex. 667 [1907] A.C. 65 (1916) 21 C.L.R. 551 [1921] 2 A.C. 91 [1940] O.R. 381 (1883) 9 App.Cas? 117 (1917) 23 C.L.R. 149 Cl940] S.C.R. 444 0-963] Que.P.R. 89 0-932] A.C. 41 0947] A.C. 87 0952] 1 S.C.R. 292 [1915] A.C. 330 0-954] S.C.R. 127 (1920) 51 D.L.R. 320 49 L.J.Q.B. 578 (1959) 20 D.L.R.(2d) 273 0925] S.C.R. 434 0-937] A.C. 326 Ladore v. Bennett Letang v. Cooper Lieberman v. The Queen Lord's Day A l l i a n c e v. A-G B r i t i s h Columbia Lower Mainland Dairy Products Board v. Turner's Dairy Limited Lymburn v. Mayland Ex p. McClean Mackay v. The Queen McQuaker v. Goddard Madden v. Nelson & Fort Shepperd Railway The Margarine Case Metal Trades Employers Case M i l l a r v. The Queen Re Morrison & Kingston Muller v. Oregon 0'Grady v. Sparling O i l , Chemical and Atomic Workers International Union Local 16-601 v. Imperial O i l Ltd. 0'Sullivan v. Noarlunga Meat Co. Ltd. 109.. 0-939] A . C . 468 0-964] 2 A11E.R. 929 Q963] S.C.R. 643 0959] S.C.R. 497 0-941] S.C.R. 573 0-932] A . C . 318 (1930) 43 C.L.R. 472 Q965] S.C.R. 798 01940] 1 K.B. 687 0-8.99] A . C . 625 0-949] S.C.R. 1 (1936) 54 C.L.R. 387 0954] 1 D .L.R. 148 Q938] O.R. 21 (.1908) U.S. 412 O960] S.C.R. 804 01963] S.C.R. 584 (1954) 92 C.L.R. 565 P.A.T.A. v. A-G Canada Parker v. The Queen P.E.I, v. Egan R. v. Burgess Ex p. Henry R. v. Hayduk R. v. Nat B e l l Liquors Ltd. R. v. N e i l R. v. Pee Kay Smallwares Limited R. v. Perfection Creameries Ltd. R. v. Stanley R. v. Watson Re Race Tracks & Betting Re Radio Communication Robertson & Rosetanni v. The Queen Russell v. The Queen Saint Leonard v. Fournier Saumur v. A-G Quebec Reference re Section 16 of the Special War Revenue Act Reference re Section 92(4) of the Vehicles Act (Sask.) In Re S i l v e r Bros. 110. Q.931] A.C. 310 (1965) 111 C.L.R. 610 Q94l] S.C.R. 396 (1936) 55 C.L.R. 608 £1938] O.R. 653 0922] 2 A.C. 128 0957] S.C.R. 685 Q947] O.R. 101 01939] 2 W.W.R. 139 (1952) 104 Can C.C. 31 (1890) 170 A.R. 221 (1921) 49 O.L.R. 387 0932] A.C. 304 0963] S.C.R. 651 (1882) 7 App.Cas. 829 (1956) 115 Can C.C. 366 0953] 2 S.C.R. 299 Q942] S.C.R. 429 Q-958} S.C.R. 608 0-932] A.C. 514 South A u s t r a l i a v. Commonwealth South Eastern Railway Co. v. Railway Commissioner Smith v. The Queen State Board of Insurance v. Todd Shipyards Corp. Standard Sausage Co. v. Lee In Re Storgoff Tennant v. Union Bank of Canada Toronto v. B e l l Telephone Co. Toronto E l e c t r i c Commissioners v. Snider Toronto Railway v. The King Tramways Case (No.1) Transport O i l Co. Ltd. v. Imperial O i l Co. Union C o l l i e r y Co. of B r i t i s h Columbia Ltd. v. Bryden Utah Co. of the Americas & Texada Mines Ltd. v. A-G B r i t i s h Columbia Reference re V a l i d i t y of Wartime Leasehold Regulations V a l i n v. Langlois 111. (1942) 65 C.L.R. 373 50 L.J.Q.B. 203 Q.96CQ S.C.R. 776 (.1962) 370 U.S. 451 0-933] 4 D.L.R. 501 0945] S.C.R. 526 0894] A.C. 31 Q905] A.C. 52 [1925] A.C. 396 0-917] A.C. 630 (1914) 18 C.L.R. 54 D-935] O.R. 215 0-899] A.C. 580 (1959) 19 D.L.R.(2d) 705 O950] S.C.R. 124 5 App.Cas. 115 112. Walter v. A-G Alberta Reference re Waters & Water Powers Wright v. Vinton Branch of Mountain Trust Bank of Roanoke (1967) 58 W.W.R. 383 p.929] S.C.R. 200 (1937) 300 U.S. 440 

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