Section 22 imposes a penalty upon every person who wilfully adulterates any article of food or any drug, or orders any other person so to do,' and section 23 imposes a penalty upon 'every person who, by himself or his agent, sells, offers for sale, or exposes for sale, any article of food or any drug, which is adulterated within the meaning of this Act.'"

He adds that the passing of the Adulteration Act by the Dominion Parliament is no reason against the passing by the Ontario Legislature of the section in question if properly within their powers, but he considered that "the primary object of the Act is to create new offences and to punish them by fine and in default of payment by imprisonment, and this is its true nature and character."

I think the learned dissenting Judge points out the true distinction between the two enactments. He points out that at the time of Confederation it was not an offence to deliver skimmed milk without revealing the fact.

48 Vic. ch. 67, (D.) passed in 1886, seems to have been the first general Act. Of course, if a man sold skimmed milk asserting it to be unskimmed he might be charged with obtaining its price on that false pretence.

The conviction here is for wilfully bringing the milk from which the cream had been abstracted without notifying the owner or manager, etc. etc.

We are not very distinctly told the precise way in which the persons bringing milk to the factory are remunerated. The article they bring is to be manufactured into cheese. Whether the bringer is to be ultimately remunerated by so much cheese or by money after realization of net profits of sale or otherwise does not appear. But as the case is presented to us, I do not see how the defendant's alleged offence could be easily reached under the Adulteration Act, which seems aimed at the seller of goods in the ordinary dealings of vendor and purchaser.

I am not satisfied that this was milk "sold or offered or exposed for sale" in the sense of that statute, nor can I believe that the existence of such a general Act must pre30-VOL. XVII. A.R.

Judgment.

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Judgment. vent the Local Legislature from regulating the dealings HAGARTY between these cheese factories and their patrons or cusC.J.O. tomers in such a special manner as this Act provides. The

industry sought to be regulated is one of vast and increasing importance, and it may be important to its interests to have special local legislation to meet its requirements.

The regulations prescribe that the bringer in of skimmed milk must give a written notice that it has been so skimmed. This is a special provision. So also as to keeping back the “strippings." (Section 2.)

Then power is given to the manager (section 5) to compel inspection and submission of cows to a milk test and there are other provisions specially adapted to insuring fair dealing in this particular business.

My learned brother Street says with much force: “Is it an Act constituting a new crime for the purpose of punishing that crime in the interest of public morality? Or is it an Act for the regulation of the dealings and rights of cheese makers and their patrons, with punishments imposed for the protection of the former? If it is found to come under the former head, I think it is bad as dealing with criminal law; if under the latter, I think it is good as an exercise of the rights conferred on the Province by the 92nd section of the British North America Act. An examination of the Act satisfies me that the latter is its true object, intention, and character. It is not made an offence to deliver skimmed, sour, tainted, or adulterated milk to the cheese maker, as we should expect to find in an Act intended for the public interest; the offence consists in doing so without notifying the fact to the cheese maker; he is the person injured by the breach, and intended to be protected by the notice."

If we hold this Act to be beyond the powers of the Ontario Legislature, I do not see how our judgment must not necessarily impeach the validity of a hundred similar enactments imposing penalties for the non-observance of directions and requirements of the Legislature on subjects clearly of a local character.

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Of course, the frequency of such legislation does not Judgment. prove its legality. But, it may be asked, how would it be possible to legislate on confessedly local subjects within the authority of our Legislature if no power to enforce obedience to the enactment can be conceded?

If this be an Act merely to create offences in the interest of public morality, it may be argued that it is trenching on the forbidden ground of "Criminal Law.”

If it be, as I think it is, an Act to regulate the business carried on at these cheese factories, with reasonable penalties to ensure obedience to its regulations, I consider it to be within the powers given by the constitution to the Provincial Legislature.

I have had occasion, in considering the second question, as to the power of this Court to hear the appeal, to examine several authorities which also distinctly bear upon the first question.

The appeal comes to us under 52 Vic. ch. 15 (O.) (passed 23rd of March, 1889). The Act is declared not to apply to any prosecution under any Dominion Act nor to any prosecution except for an offence the penalty or punishment for which is imposed under a Provincial Act, or statute in force therein, and within the legislative authority of the Province as regards such penalty or punishment.

Section 3 gives an appeal to this Court against a judgment quashing a conviction under an Ontario Statute: Provided the Attorney-General grants his fiat therefor.

We have now to consider the objection that the appeal cannot be properly entertained as this right of appeal is a matter of "Criminal Procedure."

In Cushing v. Dupuy, 1 Cart. 252, in the Privy Council, it was objected to the Insolvent Law that it interfered with civil procedure exclusively assigned to the Provincial Legislatures. It was answered in their Lordships' judgment that it was impossible to advance a step in a system of insolvency without interfering with civil procedure, that "procedure must necessarily form an essential part of any law dealing with insolvency." They

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Judgment. say it is to be presumed that the Imperial Act necessarily HAGARTY implied the power to interfere with procedure so far as a general law of the proper cognizance of Parliament might affect it. To apply this decision: The Local Legislature has the exclusive power to legislate on subjects within its jurisdiction and to punish by fine and imprisonment. It must be held, as it has been, that they must have the power to enforce obedience by penalties of fine and imprisonment, on conviction by magistrates, etc. This may be called, in a sense, criminal procedure, and so may the giving of the right to appeal from one Ontario Court to another.

But, notwithstanding the reservation of criminal procedure to the Dominion Parliament, must we not hold that there must be a necessary implication of power to the Legislature so far to regulate criminal procedure (if that be its proper name) as to provide for the course of trial and adjudication of offenders against its lawful enactments?

I think we can well keep the two jurisdictions distinct, and as to each to adhere to the rule that where either has the right to legislate on a named subject, it must by necessary implication be held that all powers are given fully to carry out the object of the enactment although subjects such as civil rights, and procedure, civil or criminal, may be apparently interfered with. The exclusive right to deal with the specified subjects remains wholly unaffected— the carrying the legislation into practical effect and providing necessary penalties for its observance is alone in question.

The point before us has been dealt with in the Province of Quebec.

In Pope v. Griffith, 2 Cart. 291, the late Mr. Justice Ramsay held that the Legislature has power to regulate procedure affecting penal laws which such Legislature has authority to pass. The Quebec License Act took away the certiorari to bring up a conviction. He held this was lawful. In one sense of the word the act of which the de

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fendant is accused may be a crime; it is equally plain it is Judgment. not a crime in the sense of sub-section 27 of section 91, which speaks of the criminal law. Sub-section 15 of section 92 gives the Local Legislature power to impose penalties, fine, and imprisonment, to ensure obedience to its laws." He adds: "What can be more local than the procedure to give force to a local law? The powers are perfectly distinct. Parliament makes the laws of procedure affecting the criminal law which it enacts, each of the Legislatures makes the laws of procedure affecting the penal laws which they enact respectively."

In Ex parte Duncan, 2 Cart. 297, the late Mr. Justice Dunkin takes the same view. His reasoning seems to me. to be sound and logical. I make one extract from his able judgment: "Whatever infractions of law, whether as to matters of Dominion or Provincial legislation, Parliament sees fit to designate as crimes, it--and it alone--can so declare, and as such punish; and to that end regulate procedure. Whatever infractions of any Provincial law coming within the purview of this 92nd section Parliament may not see fit thus to deal with, the interested Province may punish by fine, penalty, or imprisonment; but its so doing does not make the offence to be thus punished a crime, nor the procedure laid down in order to its punishment procedure in a criminal matter. On the contrary, such whole matter must remain a civil matter, within what is here the true meaning of these respective terms."

Page v. Griffith, 2 Cart. 308, before Mr. Justice Sanborn, is to the like effect.

Coté v. Chauveau, 2 Cart. 311, before Mr. Justice Casault, adopts the same view.

In Regina v. Bradshaw, 38 U.C.R. 564, 2 Cart. 602, before Mr. Justice Gwynne, it was held that the provision in the Dominion Act, 32 & 33 Vic. ch. 31, sec. 66, allowing the parties on the trial of an appeal from a summary conviction under the Malicious Injuries to Property Act to dispense with a jury was not ultra vires or an interference with the constitution of the Court.