R. v. Collins (R.) et al., 2000 BCCA 437

• Judge: Southin, Rowles and Mackenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: July 18, 2000
• Jurisdiction: British Columbia
• Citations: 2000 BCCA 437;(2000), 140 B.C.A.C. 311 (CA)

R. v. Collins (R.) (2000), 140 B.C.A.C. 311 (CA);

    229 W.A.C. 311

MLB headnote and full text

Temp. Cite: [2000] B.C.A.C. TBEd. SE.017

Regina (appellant) v. Dale Sims (respondent) (CA024244)

Regina (appellant) v. Conrad Noel (respondent) (CA024245)

Regina (appellant) v. Rovic Enterprises Ltd. doing business as Western Canada Fire Protection, Western Canada Fire Protection (Victoria), Western Canada Fire Protection Ltd., Western Canada Fire Protection (Victoria) Ltd., Western Fire Protection and RBC Holdings Ltd. (respondents)

(CA024246) (2000 BCCA 437)

Indexed As: R. v. Collins (R.) et al.

British Columbia Court of Appeal

Southin, Rowles and Mackenzie, JJ.A.

July 18, 2000.

Summary:

The accused were convicted of displaying misleading safety marks on fire extinguishers contrary to s. 33 of the Transportation of Dangerous Goods Act. The accused appealed.

The British Columbia Supreme Court, in a decision reported at [1998] B.C.T.C. Uned. J10, allowed the appeal on the ground that failure to publish the relevant safety standard in the Canada Gazette was fatal to the Crown's case. The Crown appealed.

The British Columbia Court of Appeal allowed the appeal and remitted the matter to the summary conviction appeal court for determination of another ground of appeal.

Statutes - Topic 4601

Operation and effect - Legislation by reference - General - The British Colum­bia Court of Appeal stated that in legislat­ive drafting, incorporation by reference to an external source was a well-recognized, although sometimes criticized, device - Parliament had the ability to incorporate by reference - Material may be incorpor­ated by reference in regulations as well as in statutes - Material other than statutes may also be incorporated by reference, includ­ing international conventions or rules, industrial standards of construction or safety, statistical information from Statis­tics Canada and generally accepted ac­counting principles recommended in the Handbook of the Canadian Institute of Chartered Accountants - When material was incorporated by reference into a stat­ute or regulation it became an integral part of the incorporating instrument as if repro­duced therein - See paragraphs 16 to 21.

Statutes - Topic 4611

Operation and effect - Legislation by reference - Validity of - General - The British Columbia Court of Appeal held that incorporation by reference was com­plete without publication of the text of the incorporated document - Incorporation by reference did not require that the text of the incorporated document be reproduced in the incorporating statute or regulation - See paragraphs 23 to 29.

Statutes - Topic 5353

Operation and effect - Delegated legisla­tion - Regulations - What constitutes a regulation - The British Columbia Court of Appeal held that CSA Standard CAN/­CSA B339-88, incorporated by reference into the Transportation of Dangerous Goods Regulations (Can.) was not itself a "statu­tory instrument" and therefore was not a "regulation" within the meaning of the Statutory Instruments Act, R.S.C. 1985, c. S-22 - See paragraphs 30 to 31.

Statutes - Topic 5843

Operation and effect - Enforcement - Prerequisites - Requirement of publication - Schedule XIV under the Transportation of Dangerous Goods Regulations (Can.) listed a number of safety standards - The regulation, including the schedule but not the text of the standard, was published in the Canada Gazette - The British Colum­bia Court of Appeal held that publication of the entire standard was not required before a prosecution based on contraven­tion of that standard could be pursued - See para­graphs 23 to 37.

Words and Phrases

Statutory instrument - The British Col­umbia Court of Appeal held that an instru­ment was only a "statutory instrument" under the Statutory Instruments Act, R.S.C. 1985, c. S-22, if it was made pur­suant to a legislative provision expressly providing that the power it conferred must be exer­cised by the making of a specific type of instrument - See paragraph 31.

Cases Noticed:

Ontario (Attorney General) v. Scott, [1956] S.C.R. 137, refd to. [para. 17].

Coughlin v. Highway Transport Board (Ont.), [1968] S.C.R. 569, refd to. [para. 17].

R. v. Smith, [1972] S.C.R. 359, refd to. [para. 17].

R. v. Furtney et al., [1991] 3 S.C.R. 89; 129 N.R. 241; 51 O.A.C. 299, refd to. [para. 17].

R. v. Glibbery, [1963] 1 O.R. 232 (C.A.), consd. [para. 18].

Calder v. Minister of Employment and Immigration, [1980] 1 F.C. 842; 31 N.R. 56 (F.C.A.), refd to. [para. 19].

Denison Mines Ltd. and Ontario Securities Commission, Re (1981), 122 D.L.R.(3d) 98 (Ont. Gen. Div.), refd to. [para. 19].

Mainwaring v. Mainwaring, [1942] 2 D.L.R. 377 (B.C.C.A.), refd to. [para. 20].

Manitoba Language Rights Reference (No. 2), [1992] 1 S.C.R. 212; 133 N.R. 88; 76 Man.R.(2d) 124; 10 W.A.C. 124, consd. [para. 21].

Wright v. T.I.L. Services Pty. Ltd. (1956), S.R.(N.S.W.) 413, consd. [para. 23].

Canadian Pacific Ltd. v. Canadian Trans­port Commission (1988), 86 N.R. 360 (F.C.A.), refd to. [para. 31].

Liberty Home Products Corp. v. Minister of National Revenue (Customs and Excise) (1990), 113 N.R. 51 (F.C.A.), refd to. [para. 31].

Statutes Noticed:

Statutory Instruments Act, R.S.C. 1985, c. S-22, sect. 2 [para. 30]; sect. 11(1), sect. 11(2) [para. 13].

Transportation of Dangerous Goods Act, S.C. 1992, c. 34, sect. 27(2) [para. 5].

Transportation of Dangerous Goods Act Regulations (Can.), SOR/91-711, sect. 6.1, sect. 6.2, sect. 6.3 [para. 6]; Sched­ule XIV, no. 45 [para. 7].

Authors and Works Noticed:

Driedger, Elmer A., The Composition of Legislation (2nd Ed.), generally [para. 16].

Read, H.E., Is Referential Legislation Worthwhile?, [1940] Can. Bar Rev. 415, generally [para. 16].

Counsel:

Kenneth J. Yule, for the appellant;

David A. MacLeod, for the respondents.

This appeal was heard on June 30, 2000, by Southin, Rowles and Mackenzie, JJ.A., of the British Columbia Court of Appeal.

The following decision of the court was delivered by Rowles, J.A., on July 18, 2000.