Reference re Validity of Section 5 (a) Dairy Industry Act

Reference re Validity of Section 5 (a) Dairy Industry Act
Collection
Supreme Court Judgments
Date
1948-12-14
Report
[1949] SCR 1
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Reference re Validity of Section 5 (a) Dairy Industry Act, [1949] S.C.R. 1
Date: 1948-12-14
Cases Determined By The Supreme Court Of Canada On Appeal From Dominion And Provincial Courts
In The Matter Of A Reference As To The Validity Of Section 5(A) Of The Dairy Industry Act, R.S.C. 1927, Chapter 45.
1948: October 5, 6, 7, 8; 1948: December 14.
Present: Rinfret C.J. and Kerwin, Taschereau, Rand, Kellock, Estey and Locke JJ.
Constitutional law—Whether section 5(a) of Dairy Industry Act, R.S.C. 1927, c. 45 is ultra vires of Parliament—Constitutional validity—Criminal law—Trade and Commerce—Agriculture—Property and Civil Rights—Importation—B.N.A. Act, ss. 91, 92, 95.
Subsection a of Section 5 of the Dairy Industry Act provides that "no person shall manufacture, import into Canada, or offer, sell or have in his possession for sale, any oleomargarine, margarine, butterine, or other substitute for butter, manufactured wholly or in part from any fat other than that of milk or cream."
The Governor-in-Council referred to this Court under section 55 of the Supreme Court Act the following question: Is section 5(a) of the Dairy Industry Act, R.S.C. 1927, c. 45, ultra vires of the Parliament of Canada in whole or in part and if so in what particular or particulars and to what extent?
Held that the prohibition of importation of the goods mentioned in the section is intra vires of Parliament as legislation in relation to foreign trade. Locke J. finds the whole section to be ultra vires while expressing no opinion as to the power of Parliament to ban importation by appropriate legislation, the prohibition of importation being merely ancillary to the other prohibitions.
Held, The Chief Justice and Kerwin J. dissenting, that the prohibition of manufacture, offer, sale or possession for sale of the goods mentioned is ultra vires of Parliament. It is legislation in relation to property and civil rights which cannot be supported under any head of section 91. Nor can it be supported as legislation for the peace, order and good government of Canada.
Per The Chief Justice (dissenting): The Dairy Industry Act is within the domain of the Dominion as a law in relation to agriculture and this cannot be discarded on the ground that the products here in question are articles of trade or commodities which are not directly the product of agriculture. (Eastern Terminal Elevators not applicable). Therefore the insertion of section 5(a) being an insertion in the Dairy Industry Act is nothing more than the direct exercise of Parliament's jurisdiction over agricultural matters or at least necessarily incidental and necessary for the effective control of agricultural matters in respect of milk and its by-products; and the mere contention that they are not natural products but rather manufactured articles is not sufficient to remove them from the domain of the federal government in respect of agriculture.
The legislation deals with trade and commerce and is not limited to the regulation of one particular trade or of one particular commodity, nor to one, or more than one, province; it is an Act embracing the whole Dominion. Furthermore, the so-called prohibition in section 5(a), when read in conjunction with the whole Act, is not a prohibition at all, but a regulation of trade and commerce, for in regulating, one may prohibit things which are not in accordance with those regulations.
It would seem to me that the manufacture, import or sale of these goods, if thought injurious to the manufacture and sale of butter which concerns such a large and important section of Canada, can hardly be said not to be of national concern.
Per The Chief Justice and Kerwin J. (dissenting): There is no ground on which it may be held that the legislation here in question, on its true construction, is not what it professes to be, that is, an enactment creating a criminal offence in exercise of the powers vested in Parliament by head 27 of section 91. (Proprietary Trade Articles case).
Reciprocal Insurers case [1924] A.C. 328; King v. Eastern Terminal Elevators [1925] S.C.R. 457; Lower Mainland Dairy case [1933] A.C. 168; Natural Products Reference [1936] S.C.R. 410; Canada Temperance Federation case [1946] A.C. 193 and Proprietary Trade Articles case [1931] A.C. 310 referred to.
REFERENCE by His Excellency the Governor General in Council (P.C. 3365, dated July 27, 1948) to the Supreme Court of Canada in the exercise of the powers conferred by section 55 of the Supreme Court Act (R.S.C. 1927, c. 35) of the following question: Is section 5(a) of the Dairy Industry Act, R.S.C. 1927, c. 45, ultra vires of the Parliament of Canada in whole or in part and if so in what particular or particulars and to what extent? The Order in Council referring this question to the Court is as follows:
WHEREAS there has been laid before His Excellency the Governor General in Council a report of the Acting Minister of Justice, as follows:
"1. On June 10, 1948, the Senate agreed to the following motion:
'That, in the opinion of this House, the Government should, immediately after prorogation of the present session of Parliament, refer to the Supreme Court of Canada for the opinion of that Court the question of the constitutional validity of that part of the Dairy Industry Act, Chapter 45 of the Revised Statutes of Canada, 1927, which prohibits the manufacture or sale, or having in possession for sale, or offering for sale, oleomargarine, margarine, butterine or other substitute for butter, manufactured wholly or in part from any fat other than that of milk or cream.'
2. The undersigned further reports that according to information furnished by the Department of Agriculture the history of margarine or oleomargarine dates back to about the year 1867 when the original formula for its manufacture was worked out by a French chemist. While the terms margarine and oleomargarine are commonly used interchangeably, there is a distinction between these products in this respect that margarine is a straight vegetable oil compound while oleomargarine contains in addition an animal fat, usually beef fat. The principal vegetable oils used are coconut, cotton-seed, peanut, soya bean and sunflower seed. None of these vegetables is produced in Canada in any considerable volume. Margarine was introduced as a food product in Europe and the United States about 1867.
3. The undersigned further reports that, according to information furnished by the Department of Agriculture, the process of manufacture is as follows:
The vegetable oil is refined and bleached and hydrogenated to the end that the melting point is controlled to meet seasonal requirements. The oil is then deodorized and a sterile, bland, neutral, flavourless oil produced which is mixed with fresh skim milk to which has been added a lactic acid culture, to impart a butter flavour. The mixture is then emulsified and salt and Vitamin A are added. The mixture is then tempered and again emulsified and crystallized by chilling to produce a product of uniform texture. The finished product is then moulded and wrapped for use. In the case of oleomargarine, animal fat is introduced and the process carried out as outlined.
4. The undersigned further reports that the Department of National Health and Welfare submits with its approval the following extract from an article contained in the Canadian Medical Association Journal of August, 1947, respecting margarine:
'One factor absent in vegetable oils is Vitamin A, and if the lack of this could not be remedied it would seriously weaken the value of margarine. But it is quite easy to add as much Vitamin A as is needed, and so make margarine contain more of this Vitamin than the richest butter. Even butter is liable to show seasonal variations in its content of Vitamin A. Other vitamins too could be added to margarine such as Vitamin D, for example, of which butter contains very little. As a source of energy, margarine and butter are exactly equal.
'Perhaps one of the main difficulties encountered with margarine in the early days of its development was that of its taste. That has now been so completely overcome that it is difficult to distinguish between butter and margarine. Even if it was making a virtue of wartime necessity, Britain found no difficulty in learning to like as well as depend on margarine during the war period.
'A typical margarine today, as made in the United States, consists of 80 per cent refined vegetable oils, together with 16.5 per cent pasteurized non-fat milk for flavour, plus small amounts of glycerin derivative to prevent spattering in frying, vegetable lecithin to prevent burning and sticking to the pan, sometimes benzoate of soda as a preservative, salt and Vitamin A concentrate up to a minimum of 9,000 U.S.P. units per pound; some brands go as high as 15,000 units per pound.'
5. The undersigned has the honour further to report that in 1886 Parliament enacted "An Act to Prohibit the Manufacture and Sale of Certain Substitutes for Butter", namely, oleomargarine, butterine or other substitute for butter, being Chapter 42 of 49 Victoria. The preamble to this Act read as follows:
'Whereas the use of certain substitutes for butter heretofore manufactured and exposed for sale in Canada is injurious to health; and it is expedient to prohibit the manufacture and sale thereof: Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:'
This Act was reproduced as Chapter 100 of the Revised Statutes of Canada 1886, the preamble thereto being omitted as is usual in the case of such a revision.
In 1903 the Butter Act was enacted, being Chapter 6 of 3 Edward VII, which prohibited the manufacture, import or sale of oleomargarine or other substitutes for butter. This Act was incorporated into the Inspection and Sale Act, Chapter 85 of the Revised Statutes of 1906, as Part VIII thereof entitled "Dairy Products".
In 1914 the Dairy Industry Act was enacted as Chapter 7 of 4-5 George V. This repealed Part VIII of the Inspection and Sale Act and prohibited the manufacture, import or sale of oleomargarine or other butter substitutes. In the Revised Statutes of 1927, the Dairy Industry Act appears in its present form as Chapter 45 thereof.
Section 5 paragraph (a) of the Dairy Industry Act provides as follows:
'5. No person shall
(a) manufacture, import into Canada, or offer, sell or have in his possession for sale, any oleomargarine, margarine, butterine, or other substitute for butter, manufactured wholly or in part from any fat other than that of milk or cream.'
6. The undersigned further reports that by Order in Council P.C. 3044 dated October 23, 1917, made under the War Measures Act the operation of Section 5(a) of the Dairy Industry Act was suspended and by Chapter 24 of the Statutes of Canada 1919 (2nd Session) provision was made for the manufacture and importation of oleomargarine until 31st August, 1920, and sale thereof until 1st day of March, 1921. By annual amendments the per- missions contained in the Oleomargarine Act were extended to August 31, 1923, in the case of manufacture and importation, and to March 1, 1924, in the case of sale.
7. The undersigned further reports that according to information furnished by the Department of Agriculture during the period December 1, 1917 to September 30, 1923, oleomargarine and butter were manufactured and imported as follows:
Manufactured
Imported
Total
Oleomargarine
lbs.
lbs.
lbs.
Dec. 1, 1917 to Mar. 31, 1919 ……………..
10,483,179
6,480,430
16,963,609
Year ended Mar. 31, 1920 …………………
6,450,902
6,497,031
12,947,933
Year ended Mar. 31, 1921 …………………
6,224,422
4,660,747
10,855,169
Year ended Mar. 31, 1922 …………………
1,902,629
1,339,748
3,242,377
Year ended Mar. 31, 1923 …………………
2,122,029
1,165,440
3,287,469
6 months ended Sept. 1923 ……………….
#1,880,678
745,015
2,625,693
Total ………………………………………….
31,063,839
20,858,411
51,922,250
#Manufactured covers five months ended August 1923.
Manufactured
Imported
Total
Butter
Million lbs.
Million lbs.
Million lbs.
1918 ………………………………………....
#193.3
0.4
193.7
1919 ……………………………………...….
#203.9
1.9
205.8
1920 ……………………………………...….
215.1
0.4
215.5
1921 ………………………...….
228.7
3.7
232.4
1922 ………………………...….
252.5
6.0
258.5
1923 ……………………...…….
262.8
3.7
266.5
Total……………………….
1356.3
16.1
1372.4
#Includes estimated dairy butter production of approximately 100 million pounds per year. Statistics on dairy butter production are not available for the years previous to 1920.
8. The undersigned further reports, according to information furnished by the Department of Agriculture, that milk production is an essential basic part of agriculture as certain large areas of Canada, particularly in Ontario and Quebec and the Maritime Provinces are best suited for hay and pasture crops. Consequently, milk production is the branch of agriculture which is best suited to these regions of Eastern Canada. The marginal land farmer produces much of the milk in these areas that finds its way into butter. He is able to produce milk with reasonable profit only by raising hogs and poultry which is a natural side line of the smaller farmer who keeps a few cows. Canadian dairy products have a value of approximately $400,000,000 per annum of which the butter industry produces about $150,000,000. Approximately 50 per cent of all the milk produced in Canada goes into butter and at one time or another during the production season practically all dairy farmers depend on butter as an outlet for their surplus milk, and without this outlet their operations as milk producers would be seriously affected. Butter is the largest user of milk, of which there is produced annually in Canada approximately 17 billion pounds. Approximately 400,000 farmers are producing milk for butter manufacture and about 85 per cent of the manufacturer's price is returned to the dairy farmers. In addition to the 400,000 farmers involved, there are approximately 1,200 plants engaged in the manufacture of butter with thousands of other individuals depending for their livelihood on the butter industry.
9. The undersigned further reports that information concerning production, composition and consumption of butter and margarine in most of the important countries of the world in 1939 has been furnished to him and is contained in Schedule A hereto.
THEREFORE His Excellency the Governor General in Council, on the recommendation of the Acting Minister of Justice, is pleased, in view of the resolution of the Senate that the opinion of the highest judicial authority in Canada be obtained with the least possible delay, to refer and doth hereby refer the following question to the Supreme Court of Canada for hearing and consideration pursuant to the authority of Section 55 of the Supreme Court Act:
Question
Is Section 5(a) of the Dairy Industry Act, R.S.C. 1927, Chapter 45 ultra vires of the Parliament of Canada either in whole or in part and if so in what particular or particulars and to what extent?
A. D. P. HEENEY,
Clerk of the Privy Council.
The respective Attorneys-General of the provinces of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan and the Canadian Federation of Agriculture, the National Dairy Council of Canada, the Canadian Association of Consumers, the Canadian Manufacturers Association and Mr. Salter Hayden, K.C., counsel for the Honourable W.D. Euler and others were, pursuant to order of the Honourable Mr. Justice Kerwin, notified of the hearing of the Reference.
F.P. Varcoe K.C., W.R. Jackett and A.J. MacLeod for the Attorney-General of Canada.
L.E. Beauli0eu K.C. for the Attorney-General of Quebec.
M.P. Hyndman K.C. for the Canadian Association of Consumers.
R.H. Milliken K.C. for the Canadian Federation of Agriculture.
S.A. Hayden K.C. and J.W. Blain for the Hon. W.D. Euler and others.
J.M. Nadeau for l'Association Canadienne des Électrices and others.
The Chief Justice:—His Excellency the Governor General in Council on the recommendation of the Acting Minister of Justice has been pleased, in view of the resolution of the Senate that the opinion of the highest judicial authority in Canada be obtained, to refer the following question to the Supreme Court of Canada for hearing and consideration pursuant to the authority of Section 55 of the Supreme Court Act:—
Is Section 5(a) of the Dairy Industry Act, R.S.C. 1927, Chapter 45 ultra vires of the Parliament of Canada either in whole or in part and if so in what particular or particulars and to what extent?
The Order of Reference by His Excellency the Governor General in Council, dated July 27th, 1948, (P.C. 3365) first requires our attention.
The opening paragraph refers to a motion of the Senate adopted on the 10th of June, 1948. Then it proceeds to state that according to information furnished by the Department of Agriculture the history of margarine or oleomargarine dates back to about the year 1867 when the original formula for its manufacture was worked out by a French chemist, but that while the terms margarine and oleomargarine are commonly used interchangeably, there is a distinction between these products in this respect that margarine is a straight vegetable oil compound while oleomargarine contains in addition an animal fat, usually beef fat. The principal vegetable oils used are cocoanut, cottonseed, peanut, soya bean and sunflower seed. None of these vegetables are produced in Canada in any considerable volume. Margarine was introduced as a food product in Europe and the United States about 1867.
The Order of Reference continues by saying that, according to information furnished by the Department of Agriculture, the process of manufacture is as follows:—
The vegetable oil is refined and bleached and hydrogenated to the end that the melting point is controlled to meet seasonal requirements. The oil is then deodorized and a sterile, bland, neutral, flavourless oil produced which is mixed with fresh skim milk to which has been added a lactic acid culture, to impart a butter flavour. The mixture is then emulsified and salt and Vitamin A are added. The mixture is then tempered and again emulsified and crystallized by chilling to produce a product of uniform texture. The finished product is then moulded and wrapped for use. In the case of oleomargarine, animal fat is introduced and the process carried out as outlined.
The Order of Reference goes on to say that the Department of National Health and Welfare submitted with its approval the following extract from an article contained in the Canadian Medical Association Journal of August, 1947, respecting margarine:—
One factor absent in vegetable oils is Vitamin A, and if the lack of this could not be remedied it would seriously weaken the value of margarine. But it is quite easy to add as much Vitamin A as is needed, and so make margarine contain more of this Vitamin than the richest butter. Even butter is liable to show seasonal variations in its content of Vitamin A. Other vitamins too could be added to margarine such as Vitamin D, for example, of which butter contains very little. As a source of energy, margarine and butter are exactly equal.
Perhaps one of the main difficulties encountered with margarine in the early days of its development was that of its taste. That has now been so completely overcome that it is difficult to distinguish between butter and margarine. Even if it was making a virtue of wartime necessity, Britain found no difficulty in learning to like as well as depend on margarine during the war period. A typical margarine today, as made in the United States, consists of 80 per cent refined vegetable oils, together with 16.5 per cent pasteurized non-fat milk for flavour, plus small amounts of glycerin derivative to prevent spattering in frying, vegetable lecithin to prevent burning and sticking to the pan, sometimes benzoate of soda as a preservative, salt and Vitamin A concentrate up to a minimum of 9,000 U.S.P. units per pound; some brands go as high as 15,000 units per pound.
According to the Order of Reference it was in 1885 that the Parliament of Canada enacted "An Act to Prohibit the Manufacture and Sale of Certain Substitutes for Butter", namely, oleomargarine, butterine or other substitute for butter, being Chapter 42 of 49 Victoria. The preamble to this Act reads as follows:—
Whereas the use of certain substitutes for butter heretofore manufactured and exposed for sale in Canada is injurious to health; and it is expedient to prohibit the manufacture and sale thereof: Therefore Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
This Act was reproduced as Chapter 100 of the Revised Statutes of Canada 1886, the preamble thereto being omitted "as is usual in the case of such a revision", so the Order of Reference states.
In 1903 the Butter Act was enacted, being Chapter 6 of 3 Edward VII, which prohibited the manufacture, import or sale of oleomargarine or other substitutes for butter. This Act was incorporated into the Inspection and Sale Act, Chapter 85 of the Revised Statutes of 1906, as Part VIII thereof entitled "Dairy Products".
In 1914 the Dairy Industry Act was enacted as Chapter 7 of 4-5 George V. This repealed Part VIII of the Inspection and Sale Act and prohibited the manufacture, import or sale of oleomargarine or other butter substitutes. In the Revised Statutes of 1927, the Dairy Industry Act appears in its present form as Chapter 45 thereof.
Section 5, paragraph (a), of the Dairy Industry Act provides as follows:—
5. No person shall
(a) manufacture, import into Canada, or offer, sell or have in his possession for sale, any oleomargarine, margarine, butterine, or other substitute for butter, manufactured wholly or in part from any fat other than that of milk or cream.
By Order in Council P.C. 3044, dated October 23rd, 1917, made under the War Measures Act, the operation of Section 5(a) of the Dairy Industry Act was suspended and by Chapter 24 of the Statutes of Canada 1919 (2nd Session) provision was made for the manufacture and importation of oleomargarine until 31st August, 1920, and sale thereof until the 1st day of March, 1921. By annual amendments the permissions contained in the Oleomargarine Act were extended to August 31st, 1923, in the case of manufacture and importation, and to March 1st, 1924, in the case of sale.
According to information furnished by the Department of Agriculture, during the period December 1st, 1917 to September 30th, 1923, oleomargarine was manufactured and imported to amounts totalling almost 17,000,000 lbs. from December 1, 1917 to March 31st, 1919, almost 15,-000,000 lbs. for the year ending March 31st, 1920, almost 11,000,000 lbs. for the year ending March 31st, 1921, somewhat more than 3,240,000 lbs. in the year ending March 31st, 1922, slightly more than 3,280,000 lbs. for the year ending March 31st, 1923, and 2,625,693 lbs. for the six months ending September, 1923.
During the same period of time the manufacture and importation of butter appears to have been more than 193,000,000 lbs. for the year 1918, more than 205,000,000 lbs. for the year 1919, more than 215,000,000 lbs. for the year 1920, more than 232,000,000 lbs. for the year 1922, and more than 266,000,000 lbs. for the year 1923.
During the six years in question, 1918 to 1923, the importation of butter was almost negligible, amounting to only 16,000,000 lbs. 1922 was the only year in which the figures were at all worthy of consideration, the importation of butter in that year reaching 6,000,000 lbs.
The Order of Reference goes on to say that, according to information furnished by the Department of Agriculture, milk production is an essential basic part of agriculture as certain large areas of Canada, particularly in Ontario and Quebec and the Maritime Provinces, are best suited for hay and pasture crops. Consequently, milk production is the branch of agriculture which is best suited to these regions of Eastern Canada. The marginal land farmer produces much of the milk in these areas that finds its way into butter. He is able to produce milk with reasonable profit only by raising hogs and poultry, which is a natural side line of the smaller farmer who keeps a few cows. Canadian dairy products have a value of approximately $400,000,000 per annum, of which the butter industry produces about $150,000,000. Approximately 50 per cent of all the milk produced in Canada goes into butter, and at one time or another, during the production season, practically all dairy farmers depend on butter as an outlet for their surplus milk, and without this outlet their operations as milk producers would be seriously affected. Butter is the largest user of milk, of which there is produced annually in Canada approximately 17 billion pounds. Approximately 400,000 farmers are producing milk for butter manufacture and about 85 per cent of the manufacturer's price is returned to the dairy farmers. In addition to the 400,000 farmers involved, there are approximately 1,200 plants engaged in the manufacture of butter with thousands of other individuals depending for their livelihood on the butter industry.
Information concerning the production, composition and consumption of butter and margarine in most of the important countries of the world in 1939 is contained in Schedule A, appended to the Order of Reference. This schedule discloses the world production of margarine plus butter production in listed countries for the year 1939. In the United States more than 354,000,000 pounds of margarine were produced, in the United Kingdom more than 423,000,000 pounds, in Germany more than 815,000,-000 pounds.
The countries listed in Schedule A are as follows:—
United States Germany
Canada Netherlands
United Kingdom Norway
Ireland Portugal
Belgium Sweden
Czecho-Slovakia Japan
Denmark Australia
Finland New Zealand
France
Canada alone, of all these important countries of the world, prohibits the importation, production and consumption of margarine. The same Schedule sets out a comparison of the food values per 100 grams between butter and oleomargarine. These values are practically the same with respect to calories, protein grams, fat grams, carbohydrate grams, phosphorous grams and iron milligrams. As regards calcium grams the table states that with respect to butter the food value, both in winter and summer, amounts to .016 and with respect to oleomargarine .002 and as to Vitamin A International Units it is stated that the percentage for butter in summer is 3970 and in winter 2200 and for oleomargarine it is 1980 units.
It should be noted that no mention of Vitamin D is made in Schedule A, although in the article contained in the Canadian Medical Association Journal of August, 1947, respecting margarine which forms part of the Order of Reference and which is quoted above, it is stated:—
One factor absent in vegetable oils is Vitamin A, and if the lack of this could not be remedied it would seriously weaken the value of margarine. But it is quite easy to add as much Vitamin A as is needed, and so make margarine contain more of this Vitamin than the richest butter. Even butter is liable to show seasonal variations in its content of Vitamin A. Other vitamins too could be added to margarine such as Vitamin D, for example, of which butter contains very little. As a source of energy, margarine and butter are exactly equal.
Perhaps one of the main difficulties encountered with margarine in the early days of its development was that of its taste. That has now been so completely overcome that it is difficult to distinguish between butter and margarine…
This Court ordered that notification of the hearing of the argument upon the Reference be sent to the respective Attorneys General for the several Provinces of Canada, the Canadian Federation of Agriculture, the National Dairy Council of Canada, the Canadian Association of Consumers, the Canadian Manufacturers Association and Hon. Salter Hayden, K.C., counsel for the Hon. W. D. Euler and others.
At the hearing, in addition to the Attorney General of Canada, the Canadian Federation of Agriculture appeared in support of the validity of Section 5(a) of the Dairy Industry Act. Hon. Salter Hayden, K.C., representing Hon. W.D. Euler and others; Mr. L.E. Beaulieu, K.C., representing the Attorney General of Quebec, Miss M.P. Hyndman, K.C., representing The Canadian Association of Consumers, and Mr. Jean-Marie Nadeau, K.C., representing l'Association Canadienne des Électrices et autres, appeared in support of the contention that the subject matter of Section 5(a) was exclusively within provincial jurisdiction and competence and that, therefore, its insertion in the Dairy Industry Act was ultra vires.
It now becomes our duty to give our answer to the question referred to this Court by His Excellency the Governor General in Council.
In order to understand properly the exact purport of Section 5(a) it is essential, in my opinion, to begin by an analysis of the Dairy Industry Act, which, it is stated in the Order of Reference, came into force in 1914 (Chapter 7 of 4-5 George V), the constitutional validity of which (except for Section 5(a)) has not been challenged before this Court.
Part I deals with the manufacture and sale of dairy products and butter substitutes. The Interpretation Section defines "butter", "creamery", "creamery butter", "dairy", "dairy butter", "dairy product", "fat", "foreign substance", "homogenized milk", "illegal dairy product", "oleomargarine", "package", "renovated butter" and "whey butter". The definition of oleomargarine in this Interpretation Section is as follows:—
(n) "oleomargarine" means any food substance other than butter, of whatever origin, source or composition which has the appearance of and is prepared for the same uses as butter.
The next section deals with the regulations the Governor in Council may make as he deems necessary. The following paragraphs are pertinent:—
(c) the seizure and confiscation of apparatus and materials used in the manufacture of any butter, cheese or other dairy product or imitations thereof in contravention of any of the provisions of this Part or of any regulation made hereunder;
. . . . .
(e) the seizure and confiscation of any illegal dairy product as defined in this Part;
. . . . .
(g) the imposition upon summary conviction of penalties not exceeding fifty dollars and costs upon any person violating any regulation made under the provisions of this Part;
Section 4 deals with the quality of milk for manufacturers and reads as follows:—
4. No person shall sell, supply or send to any cheese. or butter or condensed milk or milk powder or casein manufactory, or to a milk or cream shipping station, or to a milk bottling establishment or other premises where milk or cream is collected for sale or shipment, or to the owner or manager thereof, or to any maker of butter, cheese, condensed milk or milk powder or casein to be manufactured:
(a) milk diluted with water, or in any way adulterated, or milk from which any cream has been taken, or milk commonly known as skim-milk, or any milk to which cream has been added, or any milk or cream to which any foreign fat, colouring matter, preservative or other chemical substance of any kind has been added;
(b) milk from which any portion of that part of the milk known as strippings has been retained;
(c) any milk taken or drawn from a cow that he knows to be diseased at the time the milk is so taken or drawn from her.
Section 5 deals with "Butter" and sub-section (a) of that section forms the question referred to this Court for consideration. As it has already been quoted above it is not necessary to repeat it here. It is sufficient to state that it is prohibited to manufacture, import into Canada, or offer, sell or have in one's possession for sale, any oleomargarine, margarine, butterine, or other substitute for butter, manufactured wholly or in part from any fat other than that of milk or cream.
It should be noticed at once that in Section 5(a) oleomargarine, margarine and butterine are placed on the same footing as any other substitute for butter and that oleomargarine and margarine are characterized as being substitutes for butter.
The only other sub-section of Section 5 that need be referred to is sub-section (e) which states:—
5. No person shall
(e) have upon premises occupied by him where any dairy produce is treated, manipulated, manufactured, or re-worked, any substance that might be used for the adulteration of any such product and the presence upon any such premises of any fat or oil capable of being used for such adulteration shall be prima facie proof of intent so to use it.
Section 6 prohibits the importation into Canada, or the offering, selling or having in one's possession for sale (a) any butter containing over sixteen per centum of water, or less than eighty per centum of milk fat; or (b) any process or renovated butter. The other sub-sections of Section 6 deal with the character and weight of butter.
Section 7 is as follows:—
7. No person shall manufacture, import into Canada, sell, offer, or have in possession for sale, any cheese which contains any fat or oil other than that of milk or cream. Section 8 deals with the adulteration of cheese.
Then follow some miscellaneous provisions providing for penalties in the case of the violation of any of the provisions of Sections 4, 6 and 8 of the Act. In this respect Section 9 states:—
9. Any person, firm or corporation who violates any of the provisions of sections four, six or eight of this Act, shall for each offence, upon summary conviction, be liable to a fine not exceeding fifty dollars and not less than ten dollars, together with the costs of prosecution, and in default of payment of such penalty and costs shall be liable to imprisonment with or without hard labour, for a term not exceeding six months, unless such penalty and costs and the costs of enforcing the same are sooner paid.
Section 10, dealing with penalties in the case of violations of Sections 5 and 7, reads:—
10. Any person who violates any provision of sections five or seven of this Act shall be guilty of an offence and upon summary conviction, shall be liable
(a) in the case of a first offence to a fine not exceeding one thousand dollars and not less than five hundred dollars;
(b) in the case of a second offense to a fine not exceeding two thousand dollars and not less than one thousand dollars; in each ease together with the costs of prosecution and in default of payment of such penalty and costs, to imprisonment for a term not exceeding six months with or without hard labour, unless the said penalty and costs, with costs of enforcing the same, are sooner paid;
(c) in the case of a third or subsequent offence to imprisonment for a term not exceeding six months with or without hard labour.
This Section 10 was repealed and re-enacted by Chapter 40, 1925 S.C., in the form just quoted.
It should be noted in the case of a third or subsequent offence, imprisonment is provided for without the alternative of a fine.
Sections 11 and 12 deal with the persons liable for violating those sections of the Act relating to milk, cheese, butter or other dairy product.
There are other sections of the Act providing for penalties for obstructing persons enforcing the Act, for the appointment of inspectors and permitting them access to all places where dairy products are manufactured, or stored or dealt in, or held for transport or delivery, and for employees assisting the inspectors.
The closing sections of Part 1 of the Act (16 to 20 inclusive) deal with procedure, proof in deteriorated milk prosecutions, venue, evidence, establishment of guilt for violation of the Act, summary prosecution, etc. With respect to summary prosecution it is stated:—
In all respects not provided for in this Part, the procedure under the provisions of the Criminal Code, relating to summary convictions, shall, so far as applicable, apply to all prosecutions brought under this Part.
Part II of the Act deals with the grading of dairy produce. It defines "dairy produce", "grader", "inspector", "grading store", "package" and it states that the Minister to whom the administration of that Part of the Act is entrusted is the Minister of Agriculture.
The Governor in Council is authorized to make regulations not inconsistent with the Act and inter alia to provide for the establishment of standards, definitions and grades for dairy produce; and it should be remembered that the definition of "dairy produce" includes butter, cheese and other food products manufactured from milk.
Section 25 provides for penalties against any person who, not being a dairy produce grader, alters, effaces, or obliterates wholly or partially, or causes to be altered, effaced or obliterated, any dairy produce grader's brands or marks on any dairy produce which has undergone grading, or on any package containing such dairy produce.
Part III deals with the testing of glassware used in connection with milk tests and prohibits the marking of such glassware that has not been tested. The sale of glassware not marked is prohibited and so is its use. Section 30, dealing with regulations, fees and penalties reads as follows:—
30. The Governor in Council may make regulations for the operation and enforcement of this Part, and may, by such regulations, establish fees for the verification of the apparatus therein referred to and also provide for the imposition of penalties not exceeding fifty dollars for each offence against this Part or against any regulation made hereunder …
Section 1 of the Regulations made under Part I of the Dairy Industry Act, R.S.C. 1927, Chapter 45, and amendments thereto, deals with definitions. Sub-section (c) defines "butter" as "meaning the food product, commonly known as butter, manufactured exclusively from milk or cream or both, with or without colouring matter, salt or other harmless preservatives". "Cheese", "creamery", "creamery butter", "dairy", "dairy butter", "dairy product", "grader", "package", "cream cheese", "process cheese", "skim-milk cheese", "whey", "whey butter", "ice cream", "sherbet" and "milk products" are all defined. "Dairy product" or "dairy products" are defined as meaning "any milk, cream, condensed milk, evaporated milk, milk powder, butter, cheese, ice cream, or any other product manufactured from milk and all imitations thereof". Again the "Minister" to whom the administration of the Act is entrusted is the Minister of Agriculture.
Section 2 deals with compulsory branding. It is stated that "all brands required by these regulations to be placed on a cheese, and on a package containing cheese or butter of a net weight of more than twenty-five pounds shall be legible and indelible.…" Sub-section (e) (1) refers to the branding of cheese, creamery butter or whey butter and the packages for those articles.
Section 3 deals with prohibited branding and Section 4 with the sale of dairy products, which include butter, dairy butter, whey butter, skim-milk, cheese, creamery butter. It also refers to the branding of packages for these dairy products and provides for penalties for the infringement of the regulations concerning the sale of those products.
Sub-sections 2, 3 and 4 of Section 4 prohibit the manufacture, import into Canada, sale, offer or having in one's possession for sale ice cream, sherbet, ice cream cakes, chocolate-coated ice cream