Canadian National Transportation Ltd. and Canadian National Railway Co. v. Canada (Attorney General); Canadian Pacific Transport Co. and Paulley v. Canada (Attorney General) and Attorneys General for Ontario, Quebec, New Brunswick, British Columbia, Saskatchewan and Alberta, (1983) 49 A.R. 39 (SCC)

• Judge: Laskin, C.J.C., Ritchie, Dickson, Beetz, Estey, McIntyre and Lamer, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 13, 1983
• Jurisdiction: Canada (Federal)
• Citations: (1983), 49 A.R. 39 (SCC);1983 CanLII 60 (SCC);[1983] 2 SCR 159

CN Transportation Ltd. v. Can. (A.G.) (1983), 49 A.R. 39 (SCC)

MLB headnote and full text

Canadian National Transportation Limited and Canadian National Railway Company v. Attorney General of Canada; Canadian Pacific Transport Company Limited and Paulley v. Attorney General of Canada and Attorneys General for Ontario, Quebec, New Brunswick, British Columbia, Saskatchewan and Alberta

(intervenors)

Indexed As: Canadian National Transportation Ltd. and Canadian National Railway Co. v. Canada (Attorney General); Canadian Pacific Transport Co. and Paulley v. Canada (Attorney General) and Attorneys General for Ontario, Quebec, New Brunswick, British Columbia, Saskatchewan and Alberta

Supreme Court of Canada

Laskin, C.J.C., Ritchie, Dickson, Beetz, Estey, McIntyre and Lamer, JJ.

October 13, 1983.

Summary:

The federal Combines Investigation Branch laid an information against the accused charging them with conspiracy to prevent or lessen unduly competition in interprovincial transportation contrary to s. 32(1)(c) of the Combines Investigation Act, R.S.C. 1970, c. C-23. Counsel for the Attorney General of Canada was prosecutor. Section 15(2) of the Act authorized the Attorney General of Canada to prosecute offences under the Act. Section 2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, authorized the Attorney General of Canada to prosecute offences under federal statutes other than the Criminal Code. The accused applied for orders prohibiting the Alberta Provincial Court from proceeding so long as the prosecution was conducted by the Attorney General of Canada. They argued that s. 32(1)(c) of the Combines Investigation Act was criminal law and that only a provincial Attorney General could prosecute under it. The Alberta Court of Queen's Bench in a judgment reported, [1981] 2 W.W.R. 701; 32 A.R. 422; 119 D.L.R.(3d) 457, dismissed the application and held that the Attorney General of Canada had the power to prosecute the proceedings. The accused appealed.

The Alberta Court of Appeal, in a judgment reported 35 A.R. 132, allowed the appeal. The court held that s. 32(1)(c) fell under the federal jurisdiction over criminal law and under the exclusive jurisdiction of the provinces to prosecute. The Attorney General appealed.

The Supreme Court of Canada (per Laskin, C.J.C., Ritchie, Estey and McIntyre, JJ., concurring) allowed the appeal and held that s. 2(2) of the Criminal Code of Canada and s. 15(2) of the Combines Investigation Act validly gave jurisdiction to the Attorney General of Canada to prosecute offences under the Combines Investigation Act. Laskin, C.J.C., determined the matter on the basis that s. 32(1)(c) was criminal in nature. He nevertheless stated that the provinces had prosecutorial jurisdiction not only over criminal prosecutions, but also prosecutions brought in provincial courts for offences under non-criminal federal legislation. Dickson, J., Beetz and Lamer, JJ., concurring, were of the opinion that s. 32(1)(c) was not only criminal in nature but also fell under the federal power over the regulation of trade and commerce and that only its trade and commerce aspect grounded the validity of s. 2(2) of the Criminal Code and 15(2) of the Combines Investigation Act giving prosecutorial jurisdiction to the Attorney General of Canada. They were of the opinion that the Attorney General of Canada could not be given jurisdiction to prosecute offences under federal statutes resting solely on the federal criminal law jurisdiction.

See also R. v. Wetmore, 49 N.R. 286, for a companion Supreme Court of Canada case respecting prosecutorial authority under the Food and Drugs Act.

Constitutional Law - Topic 1010

Interpretation of the Constitution Act, 1867 - General principles - Requirement that court's decision be restricted to narrow issue - Dickson, J., of the Supreme Court of Canada in a minority judgment referred to the general rule that decisions on constitutional matters should be restricted to as narrow an issue as possible - However, Dickson, J., in determining the basis for the constitutional validity of s. 32(1)(c) of the Combines Investigation Act broadened his inquiry of the constitutional base of the section from its accepted basis in the criminal law power to the power over the regulation of trade and commerce, because it was necessary to do so to arrive at an answer to the issue in the case - See paragraphs 79 to 82.

Constitutional Law - Topic 5660

Federal jurisdiction - Regulation of trade and commerce - General - Dickson, J., of the Supreme Court of Canada in a minority judgment thoroughly canvassed the historical judicial approach to determining whether federal legislation is validly based on the federal power to regulate trade and commerce under 91(2) of the Constitution Act, 1867 - He also suggested the correct considerations in determining the validity of statutes under 91(2) - See paragraphs 79 to 103.

Constitutional Law - Topic 5675

Federal jurisdiction - Regulation of trade and commerce - Maintenance of competition - Dickson, J., of the Supreme Court of Canada in a minority judgment opined that s. 32(1)(c) of the Combines Investigation Act making it an offence to conspire to prevent or lessen unduly competition was valid federal legislation not only under the criminal law power, but also under the federal power over the regulation of trade and commerce - See paragraphs 79 to 129, 140.

Constitutional Law - Topic 6443

Federal jurisdiction - Criminal law - Matters criminal in nature - Anti-combines legislation - The Supreme Court of Canada held that the Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c), was criminal law and was within federal jurisdiction under s. 91 (27) of the Constitution Act 1867 - See paragraphs 1 to 78.

Constitutional Law - Topic 6476

Federal jurisdiction - Criminal law - Procedure in criminal matters - Prosecutorial authority - Prosecution for federal statute offences - Authority of Attorney General of Canada - The Supreme Court of Canada held that s. 2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, and s. 15(2) of the Combines Investigation Act, R.S.C. 1970, c. C-23, validly authorized the Attorney General of Canada to prosecute offences under the Combines Investigation Act, even though the statute was grounded in the federal criminal law power under s. 91(27) of the Constitution Act, 1867 - See paragraphs 1 to 60 - The court stated, however, that normally the provinces may prosecute not only criminal offences, but also offences under non-criminal federal legislation proceeded against in provincial courts - See paragraph 10.

Constitutional Law - Topic 7402

Provincial jurisdiction - Administration of justice - Extent of subject matter - Prosecution of federal statutes - The Supreme Court of Canada held that s. 2(2) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, and s. 15 (2) of the Combines Investigation Act, R.S.C. 1970, c. C-23, validly authorized the Attorney General of Canada to prosecute offences under the Combines Investigation Act, even though the statute was grounded in the federal criminal law power under s. 91(27) of the Constitution Act, 1867 - See paragraphs 1 to 60 - The court stated, however, that normally the provinces may prosecute not only criminal offences, but also offences under non-criminal federal legislation proceeded against in provincial courts - See paragraph 10.

Statutes - Topic 1624

Interpretation - Extrinsic aids - Other statutes - Prior statutes respecting same subject matter - The Supreme Court of Canada considered prior similar statutes and predecessor versions of the Criminal Code of Canada and the Combines Investigation Act in determining the prosecutorial authority of the Attorney General of Canada and the status of the Combines Investigation Act as criminal law and in characterizing conceptually the prohibition against conspiring to lessen competition - See paragraphs 16 to 22, 71 to 78, 111 to 113.

Cases Noticed:

Reference re Dominion Trade and Industry Commission Act, [1936] S.C.R. 379, affd. [1937] A.C. 405, consd. [para. 13.]

Attorney General of Nova Scotia v. Attorney General of Canada, [1937] S.C.R. 403, consd. [para. 14].

Toronto v. Attorney General of Canada, [1946] A.C. 32, consd. [para. 14].

R. v. Lawrence (1878), 43 U.C.Q.B. 164, consd. [para. 25].

Ex parte Duncan (1872), 16 L.C.J. 188, consd. [para. 25].

R. v. Bush (1888), 15 O.R. 398, consd. [para. 26].

R. v. St. Louis (1897), 1 C.C.C. 141, consd. [para. 26].

Public Inquiries Act, Re, [1919] 3 W.W.R. 115, consd. [para. 27].

Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31, consd. [para. 28].

Tennant v. Union Bank of Canada, [1894] A.C. 31, consd. [para. 31].

Attorney General of Ontario v. Attorney General of Canada, [1894] A.C. 189, consd. [para. 31].

Attorney General of Canada v. C.P.R. and C.N.R., [1958] S.C.R. 285, [para. 32].

Attorney General of Canada v. Nykorak (1962), 33 D.L.R.(2d) 373, consd. [para. 33].

Grand Trunk Railway Co. v. A.G. of Canada, [1907] A.C. 65, refd to. [para. 33].

R. v. Pelletier (1974), 4 O.R.(2d) 677, leave to appeal refused [1974] S.C.R. x, appld. [paras. 7, 35, 36].

DiIorio v. Warden of the Common Jail of Montreal, [1978] 1 S.C.R. 152; 8 N.R. 361, dist. [para. 43].

R. v. Hauser, [1977] 6 W.W.R. 501; 7 A.R. 89; 37 C.C.C.(2d) 129, revd. [1979] 1 S.C.R. 984; 16 A.R. 91; 26 N.R. 541; 46 C.C.C.(2d) 481, consd. [paras. 7, 35, 40, 44-53, 63].

Regina v. Hoffmann-La Roche Ltd. (1980), 28 O.R.(2d) 164; 14 C.R.(3d) 289, affd. on appeal (1982), 3 O.R.(3d) 694; 24 C.R.(3d) 193, appld. [paras. 7, 35, 40, 55, 100, 106, 108].

Board of Commerce Act, 1919, and the Combines and Fair Price Act, 1919, Re, [1922] 1 A.C. 191, consd. [para. 72].

Proprietary Articles Trade Association v. Attorney General of Canada, [1931] A.C. 310, consd. [para. 73].

Dominion Trade and Industry Commission, Re, [1936] S.C.R. 379, consd. [para. 75].

Attorney General for Ontario v. Attorney General of Canada, [1937] A.C. 405, consd. [paras. 75, 92].

Section 498A of the Criminal Code, Re, [1936] S.C.R. 363, consd. [para. 76].

Attorney General of British Columbia v. Attorney General of Canada, [1937] A.C. 368, consd. [para. 76].

R. v. Campbell (1965), 58 D.L.R.(2d) 673, affing. (1964), 46 D.L.R.(2d) 83, consd. [para. 77].

Goodyear Tire & Rubber Co. v. The Queen, [1956] S.C.R. 303, consd. [para. 77].

Citizens Insurance Company of Canada v. Parsons (1881), 7 App. Cas. 96, consd. [para. 79].

Lawson v. Interior Tree, Fruit and Vegetable Committee, [1931] 2 D.L.R. 193, consd. [para. 87].

Bank of Toronto v. Lambe (1887), 12 App. Cas. 575, consd. [para. 88].

City of Montreal v. Montreal Street Railway (1912), 1 D.L.R. 681, consd. [para. 88].

Reference re National Products Marketing Act, [1936] 3 D.L.R. 622, consd. [para. 88].

Alberta Statute, Re, [1938] S.C.R. 100, consd. [para. 88].

John Deere Plow Co. v. Wharton, [1915] A.C. 330, consd. [para. 90].

R. v. Pontbriand (1978), 1 C.R.(3d) 97, disapprvd. [paras. 35, 40].

Reference Re Farm Products Marketing Act (1957), 7 D.L.R.(2d) 257, consd. [para. 89].

Toronto Electric Commission v. Snider, [1925] 2 D.L.R. 5, consd. [para. 92].

Vapor Canada Ltd. v. MacDonald, [1977] 2 S.C.R. 164; 7 N.R. 477, consd. [para. 92].

Labatt Breweries of Canada Limited v. Attorney General of Canada, [1980] 1 S.C.R. 914; 30 N.R. 496, consd. [para. 92].

Attorney General of Canada v. Attorney General of Alberta (Insurance Reference), [1916] 1 A.C. 588, consd. [para. 92].

Board of Commerce and the Combines and Fair Price Act of 1919, Re (1920), 60 S.C.R. 456, consd. [para. 95].

R. v. Aetna Insurance Co., [1978] 1 S.C.R. 731, 15 N.R. 117, consd. [para. 116].

Procureur général du Canada c. Miracle Mart Inc., [1982] C.S. 352, consd. [para. 124].

Rocois Construction Inc. v. Quebec Ready Mix Inc., [1980] 1 F.C. 184 (T.D.), consd. [para. 126].

R. v. Eastern Terminal Elevator Co., [1925] S.C.R. 434; [1925] 3 D.L.R. 12, consd. [para. 128].

Jabour v. The Law Society of British Columbia et al. (1982), 43 N.R. 451 (S.C.C.), appld. [para. 78].

Statutes Noticed:

British North America Act, 1867 - see Constitution Act below.

Combines Investigation Act, R.S.C. 1970, c. C-23, sect. 15(2), sect. 32(1)(c).

Constitution Act, 1867, sect. 91(2), sect. 91(27), sect. 92(14), sect. 121 [para. 127]; sect. 129 [para. 16]; sect. 135 [para. 17].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 2(2) [paras. 6, 66].

Authors and Works Noticed:

Hogg, Constitutional Law of Canada, p. 282 [para. 71].

Hogg and Gover, The Constitutionality of the Competition Bill (1975-76), 1 Can. Bus. Law J. 197 [para. 71].

Lefroy, Legislative Power in Canada (1897), [para. 25].

McDonald, Criminality and The Canadian Anti-Combines Laws (1965), 4 Alta. L. Rev. 67, 69-71 [para. 71].

McDonald, Constitutional Aspects of Canadian Anti-Combines Law Enforcement (1969), 47 Can. Bar. Rev. 161, 213-214 [para. 122].

Smith, The Commerce Power in Canada and the United States (1963), pp. 96-99 [para. 92].

Counsel:

J.J. Robinette, Q.C., and D.H. Christie, Q.C. for the appellant;

N.D. Mullins, Q.C., and M.M. Szel, for Canadian Pacific Transport Company Limited and Kenneth G. Paulley;

E.C. Chiasson, R.W. Lusk, and P.G. Foy, for Canadian National Transportation Limited, Canadian National Railway Company;

William Henkel, Q.C., and Nolan D. Steed, for the Attorney General for Alberta;

John Cavarzan, Q.C., for the Attorney General for Ontario;

Henri Brun, Lorraine Pilette and JeanFran?ois Dionne, for the Attorney General for Quebec;

John H. Evans and Claude Pardons, for the Attorney General of New Brunswick;

E.R.A. Edwards and Joseph J. Arvay, for Attorney General of British Columbia;

James C. MacPherson, for the Attorney General of Saskatchewan.

On October 13, 1983, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

Laskin, C.J.C. - see paragraphs 1 to 60;

Dickson, J., concurring in the result - see paragraphs 61 to 139;

Beetz and Lamer, JJ., concurring in the result - see paras. 140 to 144.

Ritchie, Estey and McIntyre, JJ., concurred with Laskin, C.J.C.