In my view the impugned sub-section differs generically from those provisions of The Highway Traffic Act prescribing detailed rules of conduct such as rates of speed, rules of the road, traffic signals, lights, equipment and so on; on this branch of the matter I have nothing to add to what has been said by Roach J.A.
If I am right in my conclusion that the provisions of the impugned sub-section if enacted by Parliament as part of the Criminal Code would clearly be a law in relation to the criminal law within the meaning of head 27 of s. 91, that would seem to be an end of the matter; the true nature and character of an enactment is to be discerned by a consideration of its meaning, purpose and effect, and does not depend upon whether it is enacted by Parliament or by a provincial legislature. The statement of Lord Watson in has been repeatedly followed:
It may well be that a growing public danger makes it desirable that inadvertent negligence in driving a motor vehicle should be made a crime. I do not express any opinion on this question which is one of public policy to be decided by Parliament. I think it clear that Parliament alone has the constitutional authority to so enact. In my opinion there is no room in this case for the view that s. 55(1) is intra vires because it operates in an otherwise unoccupied field, for the field which the impugned legislation seeks to enter is one reserved exclusively for Parliament by head 27 of s. 91. This is a field which the provincial legislature is forbidden to enter whether or not Parliament has occupied any part of it.
There are two further matters which I wish to mention. In the penultimate paragraph of his reasons Tritschler J.A. expresses the view that it is now easier to declare s. 55(1) intra vires of the legislature than it would have been had the provision formerly contained in s. 285(6) of the old Criminal Code still been in force. That sub-section read as follows:
The validity of this view depends on the "overlapping doctrine", which is accurately defined in Varcoe on The Distribution of Legislative Power in Canada, 1954, at p. 47, as follows:
Assuming, contrary to the opinion that I have already expressed, that s. 55(1) has a provincial aspect and so would be valid until Parliament occupies the field in which it operates, it is necessary to consider whether Parliament has done so. In my opinion Parliament has fully occupied the field.
For the purpose of reducing the number of automobile accidents occuring on the highways throughout Canada, Parliament has decided to attach penal consequences to negligence in the course of a particular specified activity, i.e., the operation of a motor vehicle. The provisions of the Criminal Code now in force attach those consequences to advertent negligence in such operation; when s. 285(6) of the old Code was in force it was arguable that the words therein contained, "or in a manner which is dangerous to the public having regard to all the circumstances of the case" had the effect of attaching penal consequences to inadvertent negligence; be this as it may, it is clear that Parliament has the power to attach penal consequences to inadvertent negligence and to enact as a part of the Criminal Code the very provisions contained in s. 55(1). In my opinion when Parliament has expressed in an Act its decision that a certain kind or degree of negligence in the operation of a motor vehicle shall be punishable as a crime against the state it follows that it has decided that no less culpable kind or degree of negligence in such operation shall be so punishable. By necessary implication the Act says not only what kinds or degrees of negligence shall be punishable but also what kinds or degrees shall not.
The matter may be tested in this way: suppose that Parliament in the new Code had enacted the provisions of s. 55(1) of The Highway Traffic Act as sub-section (2) of s. 221; in such circumstances the field which s. 55(1) seeks to enter would clearly be fully occupied by valid Dominion legislation; suppose then that a few years later Parliament repealed the said sub-section thereby indicating its view that the inadvertent negligence described in the repealed subsection should cease to be punishable as an offence against the State; could it be said that upon such repeal a provincial legislature could enact the repealed sub-section as part of its Highway Traffic Act? In my opinion it could not, and it appears to me that the result of holding otherwise would be to defeat the intention of the framers of the British North America Act that power to legislate as to the criminal law should be committed exclusively to Parliament. It is not within the power of the provincial legislature to remedy what it regards as defects or to supply what it regards as unwise omissions in the criminal law as enacted by Parliament.
It appears to me to be self-evident that the exclusive legislative authority in relation to the criminal law given to Parliament by s. 91(27) must include the power to decide what conduct shall not be punishable as a crime against the state as well as to decide what conduct shall be so punishable, and this may be the reason that there is little authority precisely on the point; it has however been touched on by the Judicial Committee in the case of Toronto Railway v. The King'. The members of the Board were Viscount Haldane, Lord Dunedin, Lord Atkinson, Lord Parker of Waddington, Lord Parmoor, Lord Wrenbury and Sir Arthur Channell; Viscount Haldane who delivered the judgment said at page 639:
S.C.R.
The other matter to which I wish to refer is a submission in the argument of counsel for the Attorney General of Canada to the effect that had s. 55(1) read as follows: there would be no question of its validity. As to this argument it is my view that the validity of an impugned enactment depends not on the precise verbal form in which it is expressed but on the meaning of the words the legislature has used and the purpose and effect of the enactment. The question is one of substance. Had the impugned sub-section been enacted in the form suggested I would have been equally of opinion that it was invalid. Were it otherwise a law in relation to the crime of theft could, by careful draftsmanship, be made to read as a law dealing with the civil right to the possession of personal property and a law in relation to highway robbery could be framed as a regulation of highway traffic.
For the above reasons and for those given by Adamson C.J.M. in the case at bar and by Roach J.A. in Yolles' case with which I have already expressed my full agreement I am of opinion that s. 55(1) of The Highway Traffic Act, R.S.M. 1954, c. 112, is ultra vires of the Legislature of the Province of Manitoba.
I would allow the appeal with costs throughout, set aside the judgments below and direct that an order of prohibition issue. I would make no order as to the costs of the Attorneys- General who intervened.
RITCHIE J.:-I agree with Judson J. that s. 55(1) of the Manitoba Highway Traffic Act is valid provincial legislation enacted for the regulation and control of traffic on the highways of that province and that there is a fundamental difference between the subject-matter dealt with in that section and any behaviour which is proscribed as criminal by the provisions of the Criminal Code.