Siemens et al. v. Manitoba (Attorney General) et al., (2002) 299 N.R. 267 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 31, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 299 N.R. 267 (SCC);2003 SCC 3;[2003] 1 SCR 6;102 CRR (2d) 345;221 DLR (4th) 90;299 NR 267;293 WAC 1;34 MPLR (3d) 163;[2002] SCJ No 69 (QL);[2003] 4 WWR 1;119 ACWS (3d) 564;55 WCB (2d) 609;47 Admin LR (3d) 205;JE 2003-270;173 Man R (2d) 1

Siemens v. Man. (A.G.) (2002), 299 N.R. 267 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.R. TBEd. JA.053

David Albert Siemens, Eloisa Ester Siemens and Sie-Cor Properties Inc. o/a The Winkler Inn (appellants) v. The Attorney General of Manitoba and the Government of Manitoba (respondents) and The Attorney General of Canada, the Attorney General for Ontario, the Attorney General for New Brunswick, the Attorney General for Alberta, 292129 Alberta Ltd., operating as The Empress Hotel, 484906 Alberta Ltd., operating as Lacombe Motor Inn, Leto Steak & Seafood House Ltd., Neubro Holdings Inc., operating as Lacombe Hotel, Wayne Neufeld, 324195 Alberta Ltd., operating as K.C.'s Steak & Pizza and Katerina Kadoglou (interveners)

(28416; 2003 SCC 3; 2003 CSC 3)

Indexed As: Siemens et al. v. Manitoba (Attorney General) et al.

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

October 31, 2002.

Summary:

The plaintiffs operated the only video lottery terminals (VLTs) in Winkler, Manitoba. The Town of Winkler held a plebiscite and voted to ban VLTs. The Prov­ince of Manitoba enacted the Gaming Con­trol Local Option (VLT) Act, s. 16 of which deemed the plebiscite in Winkler effective on December 1, 1999 and provided that any VLT licences were terminated on that date. The plaintiffs sued the Province of Manitoba et al., alleging that the legislation was invalid and violated their Charter rights.

The Manitoba Court of Queen's Bench, in a decision reported 151 Man.R.(2d) 49, dismissed the action, holding that the Act, either as a whole or s. 16 in particular, was neither ultra vires the provincial legislature, nor did it violate the Charter. The plaintiffs appealed.

The Manitoba Court of Appeal, in a deci­sion reported 153 Man.R.(2d) 106; 238 W.A.C. 106, dismissed the appeal. The plaintiffs appealed again, alleging violations of ss. 2(b), 7 and 15(1) of the Charter or that the Act, including s. 16, was ultra vires the provincial government because it was an affront to Parliament's exclusive jurisdiction over criminal law.

The Supreme Court of Canada dismissed the appeal.

Civil Rights - Topic 1801

Freedom of speech or expression - Expres­sion - What constitutes - The plaintiffs operated Video Lottery Terminals (VLTs) in Winkler, Manitoba - The town held a plebiscite and voted to ban VLTs - The Province of Manitoba enacted the Gaming Control Local Option (VLT) Act, s. 16 of which deemed the plebiscite in Winkler effective on December 1, 1999 and pro­vided that any VLT licences were termin­ated on that date - The plaintiffs chal­lenged the legisla­tion, arguing that the effect of the deemed vote in s. 16 of the VLT Act was to deny them the right to vote in a plebiscite under the Act which violated their freedom of expression under s. 2(b) of the Charter - The Supreme Court of Canada affirmed that there was no vio­la­tion of s. 2(b) - The court held that while voting was a form of expression, s. 16 did not violate that freedom - The residents of Winkler were not disen­franchised from VLT plebi­scites - Like all other residents of Manitoba, they were free to initiate a plebiscite under the Act to either reinstate or remove VLTs from their municipality - See paragraphs 41 to 44.

Civil Rights - Topic 5679.15

Equality and protection of the law - Par­ticular cases - Gaming, lotteries, VLTs, etc. - The plaintiffs operated the only video lottery terminals (VLTs) in Winkler, Manitoba - The Town of Winkler held a plebiscite and voted to ban VLTs - The Province of Manitoba enacted the Gaming Control Local Option (VLT) Act, s. 16 of which deemed the plebiscite in Winkler effective on December 1, 1999 and pro­vided that any VLT licences were termin­ated on that date - The plaintiffs argued that s. 16 of the legisla­tion violated their s. 15 Charter right to equality because it treated them differently - The Supreme Court of Canada held that there was no merit in this argu­ment - Although s. 16 of the VLT Act clearly made a distinction between Winkler and other municipalities, residence was not an analogous ground of discrimination - Even if the plaintiffs could have estab­lished a distinction based on an analogous ground, the court held that the legislation did not discriminate against them in any substan­tive sense - See para­graphs 47 to 50.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 5679.15 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous cat­egories - [See Civil Rights - Topic 5679.15 ].

Constitutional Law - Topic 604

Powers of Parliament and the legislatures -Delegation of power - What constitutes a delegation of legislative power - The plain­tiffs operated the only video lottery ter­minals (VLTs) in Winkler, Manitoba - The Town of Winkler held a plebiscite and voted to ban VLTs - The Province of Manitoba enacted the Gaming Control Local Option (VLT) Act, s. 16 of which deemed the plebiscite in Winkler effective on December 1, 1999 and provided that any VLT licences were terminated on that date - Interested parties challenged the validity of the Act on the ground that it constituted an improper abdication of the legislature's law-making powers and usurped the auth­ority of the Lieutenant Governor - The interveners argued that, by allowing muni­cipalities to hold binding plebiscites, the provincial government gave them the power to make and repeal law - This, they argued, violated the provincial legislature's exclusive authority to make laws for the province - The Supreme Court of Canada rejected this argument, stating that it rested on an incorrect characteriz­ation of the impugned legislation - The VLT Act did not, in any way, empower municipal voters to enact legislation - The VLT Act fell within the category of "con­ditional legisla­tion" - See paragraphs 37 to 40.

Constitutional Law - Topic 1581

Extent of powers conferred - Double aspect doctrine - General - [See Constitu­tional Law - Topic 7300.3 ].

Constitutional Law - Topic 6510

Federal jurisdiction (s. 91) - Criminal law -Respecting particular matters - Gaming - [See Constitutional Law - Topic 7300.3 ].

Constitutional Law - Topic 7300.3

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Gaming - The plaintiffs operated Video Lottery Terminals (VLTs) in Winkler, Manitoba - The town held a plebiscite and voted to ban VLTs - The Province of Manitoba enacted the Gaming Control Local Option (VLT) Act, s. 16 of which deemed the plebiscite in Winkler effective on December 1, 1999 and provided that any VLT licences were terminated on that date - The plaintiffs sued, alleging, inter alia, that the legislation was ultra vires because it fell under the federal criminal law jurisdic­tion - The Supreme Court of Canada affirmed that the purposes of the VLT Act were to regulate gaming in the province and to allow for local input on the issue of VLTs - Thus, the pith and substance of the VLT Act fell within pro­vincial heads of legislative authority (Con­stitution Act, s. 92(13) - property and civil rights and s. 92(16) - matters of a merely local or pri­vate nature in the Province) - However, gaming was a matter which fell within the "double aspect" doctrine (i.e., gaming could be subject to both federal and prov­incial legislation) - The Act was not crimi­nal legislation - It did not create penal conse­quences or have a criminal law pur­pose - The court concluded that the VLT Act, and s. 16 in particular, were intra vires the provincial legislature - See para­graphs 1 to 36.

Gaming and Betting - Topic 1023

Coin operated video gambling machines - Regu­lation - Bans - The plaintiffs operated Video Lottery Terminals (VLTs) in Wink­ler, Manitoba - The town held a plebiscite and voted to ban VLTs - The Province of Mani­toba enacted the Gaming Control Lo­cal Option (VLT) Act, s. 16 of which deemed the plebiscite in Winkler effective on December 1, 1999 and provided that any VLT licences were terminated on that date - The plaintiffs challenged the legisla­tion, and in particular s. 16, alleging the legislation was ultra vires the province and violated their Charter rights - The Supreme Court of Canada held that the Act was with­­in the juris­diction of the legislature pur­suant to s. 92 of the Constitution Act, 1867, and did not violate ss. 2(b), 7 or 15(1) of the Charter - See paragraphs 1 to 51.

Cases Noticed:

R. v. Furtney et al., [1991] 3 S.C.R. 89; 129 N.R. 241; 51 O.A.C. 299; 66 C.C.C.(3d) 498, refd to. [para. 9].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 17].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321; 64 D.L.R.(4th) 577; [1990] 1 W.W.R. 577; 71 Alta. L.R.(2d) 273; 45 C.R.R. 1, refd to. [para. 17].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145; 84 D.L.R.(4th) 161, refd to. [para. 17].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 17].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 17].

Kitkatla Indian Band et al. v. British Col­umbia (Minister of Small Business, Tourism and Culture) (2002), 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1 (S.C.C.), refd to. [para. 19].

Reference Re Validity of Section 5(a) of Dairy Industry Act (Margarine Case), [1949] S.C.R. 1; [1949] 1 D.L.R. 433, affd. [1950] 4 D.L.R. 689; [1951] A.C. 179 (P.C.), refd to. [para. 23].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201, refd to. [para. 23].

O'Grady v. Sparling, [1960] S.C.R. 804, refd to. [para. 25].

Ross v. Registrar of Motor Vehicles (Ont.) and Ontario (Attorney General), [1975] 1 S.C.R. 5; 1 N.R. 9, refd to. [para. 25].

Johnson v. Alberta (Attorney General), [1954] S.C.R. 127, dist. [para. 26].

Global Securities Corp. v. British Colum­bia Securities Commission et al., [2000] 1 S.C.R. 494; 252 N.R. 290; 134 B.C.A.C. 207; 219 W.A.C. 207, refd to. [para. 31].

Rio Hotel v. Liquor Licensing Board (N.B.), New Brunswick (Attorney Gen­eral) and Saskatchewan (Attorney Gen­eral), [1987] 2 S.C.R. 59; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417; 79 C.L.L.C. 14,209, refd to. [para. 31].

Reference Re Farm Products Marketing Act, [1957] S.C.R. 198, refd to. [para. 33].

McNeil v. Nova Scotia Board of Censors, [1978] 2 S.C.R. 662; 19 N.R. 570; 25 N.S.R.(2d) 128; 36 A.P.R. 128; 84 D.L.R.(3d) 1, refd to. [para. 33].

Ontario Public Service Employees Union et al. v. Ontario (Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [para. 34].

Russell v. R. (1882), 7 App. Cas. 829 (P.C.), refd to. [para. 38].

Reference Re Initiative and Referendum Act (1916), 27 Man.R. 1 (C.A.), dist. [para. 39].

Ontario (Attorney General) v. Canada Temperance Federation, [1946] A.C. 193 (Ont. P.C.), refd to. [para. 40].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81; 105 D.L.R.(4th) 577; 16 C.R.R.(2d) 193, refd to. [para. 41].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 45].

Blencoe v. Human Rights Commission (B.C.), [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 190 D.L.R.(4th) 513; 23 Admin. L.R.(3d) 175, refd to. [para. 45].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 48 C.C.C.(3d) 8; 69 C.R.(3d) 97; 39 C.R.R. 306, refd to. [para. 48].

Corbière et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1; 173 D.L.R.(4th) 1, refd to. [para. 48].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(b), sect. 7, sect. 15(1) [para. 7].

Constitution Act, 1867, sect. 92(13), sect. 92(16) [para. 7].

Criminal Code, R.S.C. 1985, c. C-46, sect. 207.1(1)(a) [para. 7].

Gaming Control Local Option (VLT) Act, S.M. 1999, c. 44; C.C.S.M., c. G-7, sect. 1, sect. 3(1), sect. 3(2), sect. 16(1), sect. 16(2) [para. 7].

Authors and Works Noticed:

Desjardins Report - see Manitoba, Manitoba Lottery Policy Review, Work­ing Group Report (1995).

Hansard (Man.) - see Manitoba, Hansard, Legislative Assembly Debates and Pro­ceedings.

Manitoba Gaming Control Commission Report, Municipal VLT Plebiscite Review (1998), generally [para. 21].

Manitoba, Hansard, Legislative Assembly Debates and Proceedings, 5th Sess., 36th Leg., Vol. XLIX, No. 57A (July 8, 1999), p. 4092 [para. 20].

Manitoba, Manitoba Lottery Policy Review, Working Group Report (Desjardins Report) (1995), generally [para. 21].

Counsel:

David G. Hill and Curtis A. Knudson, for the appellants;

Shawn Greenberg and Jayne Kapac, for the respondents;

Robert W. Hubbard, for the intervener, The Attorney General of Canada;

Hart Schwartz, for the intervener, The Attorney General for Ontario;

Gabriel Bourgeois, Q.C., for the intervener, The Attorney General for New Brunswick;

Roderick Wiltshire, for the intervener, The Attorney General for Alberta;

Ronald J. Dumonceaux and Graham K. Neill, for the interveners, 292129 Alberta Ltd. et al.

Solicitors of Record:

Hill Abra Dewar, Winnipeg, Manitoba, for the appellants;

Department of Justice, Winnipeg, Manitoba, for the respondents;

Attorney General of Canada, Toronto, Ontario, for the intervener, The Attorney General of Canada;

Ministry of the Attorney General, Toronto, Ontario, for the intervener, The Attorney General of Ontario;

Attorney General for New Brunswick, Fredericton, New Brunswick, for the intervener, The Attorney General of New Brunswick;

Alberta Justice, Edmonton, Alberta, for the intervener, The Attorney General of Alberta;

Merchant Law Group, Edmonton, Alberta, for the interveners, 292129 Alberta Ltd., 484906 Alberta Ltd., Leto Steak & Sea­food House Ltd., Neubro Holdings Inc., 324195 Alberta Ltd. and Katerina Kadoglou.

This appeal was heard on October 31, 2002, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada. The judgment of the court was also delivered on October 31, 2002, with the following written reasons delivered in both official languages, by Major, J., on January 30, 2003.