OSLER by fine, penalty and imprisonment: British North America Judgment. Act, section 92, clauses 13 and 15; or whether it is ultra vires that Legislature as an Act dealing with the crimina! law and criminal procedure within section 91, clause 27. Both of the learned judges who gave judgment in the Court below appeal to the test suggested by the Privy Council in Russell v. The Queen, 7 App. Cas. 839, 840; viz. that it is by determining the true character and nature of the legislation in the particular instance that the class cf subject to which it really belongs is to be ascertained, but as this merely states the difficulty which presents itself at the threshold of every case in which the question arises, it is not surprising that the learned Jadges. arrived at diametrically opposite conclusions, the Chief Justice being of opinion that the primary object of the Act was to create new offences and to provide for their punishment, while my brother Street considered that its real object was the regulation of the rights and dealings of cheese makers and their patrons. It may be noticed that there is another Act (not referred to in the argument or in the judgment below) on the provincial statute book on the subject with which this Act professes to deal, 31 Vic. ch. 33, passed in 1868, entitled "An Act to protect cheese and butter manufacturers." It appears by this title in the Revised Statutes of 1877, and again in the Revision of 1887, where, however, it is called "An Act to prevent fraud in the manufacture of cheese and butter." It is difficult to understand why it was not repealed when the Act now in question was passed. Its existence simply provokes confusion and litigation. The distinction between the two Acts is very nearly that which Street, J., relies upon as indicating the real character and object of the later one. The first makes it an offence generally, knowingly and fraudulently to deliver the deteriorated milk to the manufacturer. Under the other the offence seems to consist in delivering it to him without at the same time giving him notice in writing of its defect. What then is the real character and scope J.A OSLER Judgment. of the Act? Does it operate to enlarge the borders of the criminal law as that expression is used in section 91 (27); or is it concerned primarily with property and civil rights, providing for its enforcement by fine and imprisonment, as may lawfully be done where the principal matter is within one of the classes of subjects comprised in section 92? The competency of the enactment cannot be tested. by the severity of the sanction so long as the latter is limited to fine, penalty or imprisonment; in other words, it cannot be argued that the thing prohibited is brought within the range of the criminal law merely by reason of the high nature of the punishment which may be inflicted upon the offender, and therefore those cases in which that has been made the test of an act being a crime, and the proceeding for its punishment a "criminal" as distinguished from a civil proceeding are of little or no assistance in construing this provision of the constitutional Act: Attorney-General v. Radloff, 10 Exch. 84; Cattell v. Ireson, E. B. & E. 91; Legg v. Pardoe, 9 C. B. N. S. 289; Attorney-General v Bradlaugh, 14 Q. B. D. 667; Mann v. Owen, 9 B. & C. 595. For the same reason. viz., that the sanction though appropriate to crimes, may be constitutionally attached to a provincial law, it is not necessarily a test of the act being a crime and of the law being ultra vires that it is pursued not at the instance of the injured party, but by the Crown or its representative. Regard then is to be had to the prescribing rather than to the punitive clauses of the Act, and taking them by themselves as they appear in the Act, what fault can be found with them? The Legislature when really dealing with property and civil rights must have power to say “thou shalt" or "thou shalt not," and as the breach of the legislative command is always, in one sense, an offence, the line between what may and what may not be lawfully prescribed without trenching upon criminal law is sometimes difficult to ascertain and may shift according to circumstances. As has more than once been remarked, in one OSLER way of dealing with a particular subject it may be within Judgment. section 91, and in another way or for another purpose it may fall within section 92: Citizens Ins. Co. v. Parsons, 7 App. Cas. 107, 108; Hodge v. The Queen, 9 App. Cas. 130. The criminal law, so far as regards human legislation, in its ultimate object, even when dealing with public order, safety, or morals, is chiefly concerned with preventing and punishing the violation of personal rights and rights respecting property, and hence in a very wide sense with property and civil rights. But while in this sense and in making provisions applicable to the community at large, whether we speak of all the confederated provinces or of one, the right to legislate rests with Parliament, I do not see how the right can be denied to the Provincial Assemblies to legislate for the better protection of the rights of property by preventing fraud in relation to contracts or dealings in a particular business or trade, or upon other subjects coming within section 92, and to punish the infraction of the law in a suitable manner, so long, at all events, as Parliament has not occupied the precise field; for I suppose it will not be denied that the latter may draw into the domain of criminal law an act which has hitherto been punishable only under a provincial statute: Hodge v The Queen, 9 App. Cas. at p. 131. But if a particular species of fraud has not been converted into a crime by Dominion legislation I think that the Local Legislature must be at liberty to deal with it for the better protection of the class of persons immediately affected by it. The thing forbidden is not in such case converted into a crime merely because it happens to be also morally wrong and dishonest, more than any other thing which they may lawfully forbid becomes a crime merely because it is forbidden under a penalty. Upon a careful examination of the Act in question I have, with sincere deference to the view expressed by the learned Chief Justice of the Queen's Bench, arrived at the conclusion that it is to be regarded as one, the primary object of which is not the creation of new offences gener OSLER Judgment. ally and the prevention of dishonesty among all classes in relation to the kind of dealings mentioned therein, but the regulation of the contracts and dealings between the parties in a particular business or transaction, and the protection of the manufacturer by enacting that certain things shall not be done unless the person dealing with him in that business gives him notice in writing respecting them. It is, I consider, designed more for the protection of civil rights than the promotion of public morals or the prevention of public wrongs. It is directly concerned with the property and civil rights and relations of a particular class of the community, and but for the punishment which the Act itself imposes for its breach, its sanction would have been found in that provision of the Dominion Act, R. S. C. ch. 173, sec. 25, which enacts that any violation of a provincial statute shall be deemed a misdemeanour and punishable accordingly. Or possibly, if the penalty had not been recoverable before justices on summary conviction the remedy would have been given in section 8, sub-section 31, R.S.O. (1887), ch. 1, the Interpretation Act. The provisions of the Adulteration Act appear to me to be hardly wide or precise enough to embrace what the Act in question aims at. I agree, therefore, that the Act, though penal in its nature, is not a criminal enactment, and is therefore intra vires the Local Legislature. The remaining question, which was pressed upon us so much as to make it proper to say something about it, relates to the procedure for enforcing the provisions of the Act. In the case Regina v. Eli, 13 A. R. 526, it was rightly held that no appeal lay from a summary conviction under the Canada Temperance Act. There we were dealing with criminal law and criminal procedure strictly, whereas here we have to do with proceedings under an Ontario Act, and if that be intra vires, it seems to follow as a matter of course that the Legislature which passed it must have power to enact the procedure by which it is to be enforced. It is axiomatic that the power to pass a law OSLER J. A. must be accompanied with power to compel its observance. Judgment. As was said by the Privy Council in Hodge v. The Queen, 9 App. Cas. 132, 133, in reference to the by-laws of the Police Commissioners: "If by-laws or resolutions are warranted, power to enforce them seems equally necessary and equally lawful." If there may be what in Russell v. The Queen, 7 App. Cas. 840, was conveniently described as "provincial criminal law" there must of necessity be provincial criminal procedure. One is bound up with the other, since one legislature, supreme in its own domain, cannot be dependent upon another for the power to enforce its own laws. may be said that the power to impose punishment for enforcing provincial laws has been expressly given by the constitution to the Local Legislatures. That no doubt was rendered necessary in consequence of the larger subject of criminal law and procedure having been relegated to Parliament, but it affords no ground for the argument that the latter is to enact the criminal procedure in relation to provincial laws. It In this regard the following passages from Pomeroy's Constitutional Law, 8th ed., secs. 437, 438, as conversely applied to provincial legislation are extremely pertinent : "In addition to the express powers bestowed upon Congress to define and punish crimes, there are a very large number of implied powers. These all exist from the very nature and necessity of the case. They are measures and means which are often absolutely necessary to the effective exercise of the legislative function. A sanction is an essential element of every law. Without it all the imperative power of a law would be lost. A statute would cease to be a command and would become a mere request. Whenever Congress may adopt any particular measure in carrying out the specific grants of the constitution, it may declare acts of disobedience or acts which may tend to interrupt the accomplishment of the proposed design to be crimes and may affix such punishment as it deems. proper. Without this capacity most of the national legislation would be a nullity. If it be said that |