Hyperlawhypertext legal database Reference re legislative jurisdiction of Parliament of Canada to enact the Dominion Trade [1936] SCR 379

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Reference re legislative jurisdiction of Parliament of Canada to enact the Dominion Trade

[1936] SCR 379 Court SCC Decision date 1936-06-17 English

Contents
TO WHETHER THE PARLIAMENT OF CANADA * J n17. HAD LEGISLATIVE JURISDICTION TO EN- 20.22. ACT THE DOMINION TRADE AND INDUS- - TRY COMMISSION ACT, 1935, BEING 25-26 GEO. V, C. 59.
C.J.-The sections which require consideration are sections 14, 16, 17, 18, 20, 21 and 22.
As to section 14, we cannot perceive any ground for holding that the enactments of this section are necessarily incidental to the exercise of any powers of the Dominion in relation to the criminal law. Nor can the section, we think, be sustained as legislation in relation to the regulation of trade and commerce consistently with the passage quoted from the judgment of the Judicial Committee in Snider's case (1), in the reasons given in the judgment upon reo the Reference concerning the Natural Products Marketing Act.
is to be observed that this section contemplates action by the Commission and by the Governor in Council in respect of individual agreements which may relate to cj. trade that is entirely local.
If confined to external trade and interprovincial trade, the section might well be competent under head no. 2 section 91; and if the legislation were in substance concerned with such trade, incidental legislation in relation to local trade necessary in order to prevent the defeat of competent provisions might also be competent; but as it stands, we think this section is invalid.
As regards sections 16 and 17, it would appear that in view of the responsibilities of the Dominion Parliament in respect of the criminal law and trade and commerce, Parliament may (as seems to be suggested by the judgments of the Judicial Committee in the Board of Commerce case (2) and in Proprietary Articles Trade Association v. Attorney-General for Canada (3), exercise a wide latitude in prosecuting investigations for ascertaining the facts with regard to fraudulent commercial practices, including adulteration; for that reason we think these two sections, 16 and 17, are intra vires. Subsection 3 of section 17 would seem to be reasonably ancillary to the principal provisions of the two sections.
As to sections 18 and 19, it is not necessary to pass upcn the question whether or not the exclusive legislative jurisdiction of the Dominion extends to the subject of trade marks in virtue of subdivision 2 of section 91, " The regulation of trade and commerce."
The so-called trade mark is not a trade mark in any proper sense of the term. The function of a trade mark is to indicate the origin of goods placed on the market and the protection given to a trade mark is intended to be a protection -to the producer or seller of his reputation in his trade. The function of the letters " C.S.," as declared by section 18 (1), is something altogether different.
That subsection is really an attempt to create a civil right of novel character and to vest it in the Crown in right of the Dominion. Generally speaking, except when legislating in respect of matters falling within the enumerated subjects of section 91, Parliament possesses no competence to create a civil right of a new kind which, if validly created, would be a civil right within the scope and meaning of head no. 13 of section 92. The second subsection is also objectionable as attempting to control
CJ. the exercise of a civil right in the provinces.
Section 19 is merely subsidiary to section 18 and necessarily falls with it.
The first part of section 20 would appear to be unobjectionable as respects enactments mentioned in section 2 (h)
which may be intra vires of Parliament.
As regards the validity of these enactments we have only heard argument in respect of two of them; the Natural Products Marketing
Act and section 498A of the Criminal Code. We have elsewhere given our reasons for considering the first of these ultra vires. As to the second of them (section 498A of the
Criminal Code) a majority of the Court hold that section to be intra vires in its entirety (Cannon and Crocket JJ.
dissenting as to subsection (a) of that section).
As to sections 21 and 22, it would appear that authority to enact these provisions is necessarily incidental to the exercise of legislative authority in relation to the criminal offences created by the laws "prohibiting unfair trade practices " validly enacted in such of the statutes enumerated in section 2 (h) as may be competent.
We do not think it can be said that the authortiy to provide for the prosecution of criminal offences falls " strictly " within the subject " Criminal law and criminal procedure,"head 27 of the enumerated heads of section 91; but our view is that the authority to make such provision, and the authority to enact conditions in respect of the institution and the conduct of criminal proceedings is necessarily incidenal to the powers given to the Parliament of Canada under head no. 27 (Proprietary Articles Trade Association v. Attorney-General for Canada) (1).
This reasoning would appear to apply to the question of the validity of subsection 1 of section 15 and the second part of section 20, which, accordingly, seem to be valid.
S.C.R.]

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