Mahoney v. Newfoundland Broadcasting Co. et al., (1980) 30 Nfld. & P.E.I.R. 68 (NFPC)

• Judge: Luther, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: December 05, 1980
• Jurisdiction: Newfoundland and Labrador
• Citations: (1980), 30 Nfld. & P.E.I.R. 68 (NFPC)

Mahoney v. NFBC (1980), 30 Nfld. & P.E.I.R. 68 (NFPC);

    84 A.P.R. 68

MLB headnote and full text

Mahoney v. Newfoundland Broadcasting Company Limited; R. v. Newfoundland Broadcasting Company Limited

(No. 1746)

Indexed As: Mahoney v. Newfoundland Broadcasting Co. et al.

Newfoundland Provincial Court

District of St. John's

Luther, P.C.J.

December 5, 1980.

Summary:

A political advertisement in relation to a municipal by-election was broadcast on a television station the day before the by-election. The broadcasting company was charged with committing an offence contrary to s. 28(1)(b) of the Broadcasting Act, which prohibits the broadcasting of a partisan program, advertisement or announcement in relation to a municipal or provincial election on the day immediately preceding or the day of that election. Counsel for the broadcasting company alleged that s. 28(1)(b) was ultra vires, because it was a delegation of broadcasting power to the provinces and that it purported to legislate in the provincial sphere.

The Newfoundland Provincial Court held that s. 28(1)(b) of the Broadcasting Act was not a delegation of broadcasting power and was intra vires Parliament. The Court held that s. 28(1)(b) was an absolute liability offence and convicted the broadcasting company.

Constitutional Law - Topic 603

Powers of Parliament and the legislature - Delegation of power - What constitutes a delegation - The Newfoundland Provincial Court held that s. 28(1)(b) of the Broadcasting Act does not purport to delegate broadcasting power to the provinces; rather it invites them to legislate in relation to the conduct of provincial and municipal elections - See paragraphs 5 to 13.

Constitutional Law - Topic 6644

Federal jurisdiction and enumeration in s. 91 of B.N.A. Act - Interprovincial works and undertakings - Radio and television - The Newfoundland Provincial Court held that s. 28(1)(b) of the Broadcasting Act was within the federal jurisdiction and was not legislation in the area of control and regulation of provincial or municipal elections - See paragraphs 14 to 20.

Telecommunications - Topic 5445

Offences - Intention or mens rea - Offences of absolute liability - The Newfoundland Provincial Court held that s. 28(1)(b) of the Broadcasting Act prohibiting election advertising a day before an election was an absolute liability offence - See paragraph 35.

Cases Noticed:

Re C.F.R.B. and Attorney General for Canada et al., 38 D.L.R.(3d) 335, consd. [para. 7].

Re Regulation and Control of Radio Communication in Canada [1932] A.C. 304, refd to. [para. 7].

Attorney-General of Quebec v. Kellogg's Co. of Canada et al., 83 D.L.R.(3d) 314, consd. [para. 9].

R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; 21 N.R. 295, consd. [para. 21].

The Queen v. Chapin, [1979] 2 S.C.R. 121; 26 N.R. 289, consd. [para. 23].

R. v. Morrison and MacKay (1979), 31 N.S.R.(2d) 195; 52 A.P.R. 195, refd to. [para. 33].

R. v. Grottoli, 43 C.C.C.(2d) 158, refd to. [para. 33].

Statutes Noticed:

Broadcasting Act, R.S.C. 1970, c. B-11, sect. 2(2) [para. 17]; sect. 12 [para. 17]; sect. 28(1) [paras. 5 to 16, 18 to 21, 32 to 35].

Election Expenses Act, S.C. 1973-74, c. 51 [paras. 1, 14, 16 to 18].

An Act to Amend the Elections Act, S.C. 1977-78, c. 3 [para. 14].

Counsel:

Evan J. Kipnis, for the informant;

Augustus G. Lilly, for the defendant.

This case was heard before LUTHER, P.C.J., of the Newfoundland Provincial Court, District of St. John's.

The judgment of LUTHER, P.C.J., was delivered on December 5, 1980: