Reference as to the Validity of the Regulations in Relation to Chemicals Enacted by Order in Council and of an Order of the Controller of Chemicals Made Pursuant Thereto

Reference as to the Validity of the Regulations in Relation to Chemicals Enacted by Order in Council and of an Order of the Controller of Chemicals Made Pursuant Thereto
Collection
Supreme Court Judgments
Date
1943-01-05
Report
[1943] SCR 1
Judges
Duff, Lyman Poore; Rinfret, Thibaudeau; Davis, Henry Hague; Kerwin, Patrick; Hudson, Albert Blellock; Taschereau, Robert
On appeal from
Canada
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
REFERENCE AS TO THE VALIDITY OF THE REGULATIONS IN RELATION TO CHEMICALS ENACTED BY ORDER IN COUNCIL AND OF AN ORDER OF THE CONTROLLER OF CHEMICALS MADE PURSUANT THERETO, [1943] S.C.R. 1
Date: 1943-01-05
IN THE MATTER OF A REFERENCE AS TO THE VALIDITY OF THE REGULATIONS IN RELA­TION TO CHEMICALS ENACTED BY THE GOV­ERNOR GENERAL OF CANADA ON THE 10TH DAY OF JULY, 1941, P.C. 4996, AND OF AN ORDER OF THE CONTROLLER OF CHEMICALS, DATED THE 16TH DAY OF JANUARY, 1942, MADE PURSUANT THERETO.
1942, Dec. 14, 15, 1943, Jan. 5
PRESENT:—Duff C.J. and Rinfret, Davis, Kerwin, Hudson and Taschereau JJ.
Constitutional law—Power of the Governor General in Council, under the War Measures Act, 1914, to delegate his powers to subordinate agencies—Order in Council same as Act of Parliament—Final responsibility for acts of Governor General in Council resting upon Parliament—Enactment contained in Order in Council not open to review by courts of law—Regulations as to chemicals and Order by Controller of Chemicals declared intra vires—Applicability of the maxim: Delegatus non potest delegare.
Held: Regulations respecting chemicals established by an Order in Council, which is expressed to be made pursuant to the powers conferred by the Department of Munitions and Supply Act and by the War Measures Act, are not ultra vires of the Governor General in Council either in whole or in part, except paragraph four which is ultra vires.
Paragraph four of the Order in Council provides that the compensation, to which a person may be entitled whenever the Controller of Chemicals takes possession of any chemicals, or equipment, or real or personal property, shall be as prescribed and determined by the Controller, with the approval of the Minister of Munitions and Supply. Such paragraph is in conflict with section 7 of the War Measures Act, which enacts that, whenever any property has been expropriated by the Crown, the claim for compensation must be referred by the Minister of Justice to the Exchequer Court of Canada or to other mentioned courts.
Held, also: An Order of the Controller of Chemicals, appointed by these Regulations, relating to the control of the production and consump­tion of, as well as the dealing in, glycerine, is not ultra vires of the Controller either in whole or in part.
No opinion was expressed by the Court, such questions not having been referred to it, as to 'the meaning or the application of any of the Regulations or of the Order of the Controller. The authority vested in the Governor General in Council by the War Measures Act, (its constitutional validity having been finally determined in Re Gray, 57 S.C.R. 150 and Fort Frances case, [1923] AC. 695), is legislative in its character; and an order in council passed in conformity with the conditions prescribed by, and the provisions of, that Act, i.e. a Iegislative enactment such as should be deemed necessary and advisable by reason of war, have the effect of an Act of Parliament: In re Gray, supra.
Held, further, that the Governor General in Council has the power, under section 3 of the War Measures Act, to delegate his powers, whether legislative or administrative, to subordinate agencies (Boards, Con­trollers and other officers) to make orders, rules and by-laws generally of the nature of those the Controller of Chemicals is empowered to make by the Regulations above mentioned.
But, under the War Measures Act, the final responsibility for the acts of the Executive Government rests upon Parliament.
Per Rinfret and Taschereau JJ.:—Parliament has not abdicated its general legislative powers nor abandoned its control. The subordinate instru­mentality, which it has created for exercising the powers, remains responsible directly to Parliament and depends upon the will of Par­liament for the continuance of its official existence.
Per Davis J.—Parliament has not effaced itself, and has full power to amend or repeal the War Measures Act or to make ineffective any of the orders in council passed in pursuance of its provisions.
Per Kerwin J.—If at any time Parliament considers that too great a power has been conferred upon the Governor General in Council, the remedy lies in its own hand.
Per Rinfret and Taschereau JJ.—The advisability of the delegation of his powers to other agencies is in the discretion of the Governor General in Council; and once the discretion is exercised, the resulting enactment is a law by which every court is bound in the same manner and to the same extent as if Parliament had enacted it.
Comments as to the applicability of the maxim Delegatus non potest delegare.
REFERENCE by His Excellency the Governor General in Council 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 questions: 1. Are the regulations in relation to chemicals dated the 10th day of July, 1941, P.C. 4996 aforesaid, ultra vires of the Gover­nor in Council either in whole or in part and, if so, in what particular or particulars and to what extent? 2. Is the order dated the 16th day of January, 1942, respecting glycerine (referred to as Order No. C.C. 2-B) ultra vires of the Controller of Chemicals either in whole or in part and, if so, in what particular or particulars and to what extent? The Order in Council referring these questions to the Court is as follows:
"Whereas section three of the War Measures Act, chapter 206 of the Revised Statutes of Canada, 1927, provides as follows:
3. The Governor in Council may do and authorize such acts and things, and make from time to time such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada; and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated, that is to say:
(a) Censorship and the control and suppression of publications, writings, maps, plans, photographs, communications and means of communication;
(b) Arrest, detention, exclusion and deportation;
(c), Control of the harbours, ports and territorial waters of Canada and the movements of vessels;
(d) Transportation by land, air, or water and the control of the transport of persons and things;
(e) Trading, exportation, importation, production and manufacture;
(f) Appropriation, control, forfeiture and disposition of property and of the use thereof.
2. All orders and regulations made under this section shall have the force of law, and shall be enforced in such manner and by such courts, officers and authorities as the Governor in Council may prescribe, and may be varied, extended or revoked by any subsequent order or regula­tion; but if any order or regulation is varied, extended or revoked, neither the previous operation thereof nor anything duly done thereunder, shall be affected thereby, nor shall any right, privilege, obligation or liability acquired, accrued, accruing or incurred thereunder be affected by such variation, extension or revocation.
"And whereas by reason of the state of war now existing, the Governor General in Council has deemed it necessary or advisable for the security, defence, peace, order and welfare of Canada to authorize acts and things to be done and, from time to time, to make orders and regulations pursuant to the War Measures Act aforesaid and in par­ticular to control, restrict and regulate by means of Con­trollers the production, sale, distribution, consumption and use of essential. supplies and thereby powers have been conferred upon the said Controllers in the exercise of which numerous orders and regulations have been made by the aforesaid Controllers affecting the community at large and a question of general application has arisen as to the authority of the Governor General in Council to establish this method and system of control: "And whereas the Minister of Justice reports that a charge of an offence against an order duly made by a Controller was recently dismissed by a County Court Judge of the county of York in the province of Ontario on the , ground that the order of the Governor General in Council conferring power upon the Controller was invalid inasmuch as it constituted a delegation of the authority of the Gover­nor General in Council under the War Measures Act, and f that magistrates who have heard other complaints have as a result of this decision either dismissed the complaints or withheld their decisions for the time being;
"That the aforesaid method or system of control of essen­tial supplies is in principle identical to that adopted in other fields in connection with the conduct of the war.
"And whereas orders and regulations have been made,
(a) to empower ministers of the Crown and other authorized persons, under the Defence of Canada Regulations, to act in relation to matters affecting the security and defence of Canada;
(b) to empower the Wartime Prices and Trade Board and Administrators appointed by the said Board, with the approval of the Governor General in Council, to make orders and regulations to provide against undue enhancement in the prices of goods and services and in rentals for real property;
(c) to provide, under the direction of the National War Labour Board, for the stabilization of wage rates and for the payment of cost of living bonuses;
(d) to empower the Foreign Exchange Control Board to make regulations for the control of the importation and exportation of money, securities and foreign exchange;
"And whereas the Minister of Justice further reports that in these circumstances it is urgently required in the public interest that the opinion of the Supreme Court of Canada upon the question of the extent of the powers of the Gov­ernor General in Council under the War Measures Act be obtained with the least possible delay, which in the opinion of the Minister is an important question of law touching the interpretation of Dominion legislation; and "That typcal of the method and system of control adopted are the regulations in relation to chemicals enacted by the Governor General in Council on the 10th day of July, 1941, P.C. 4996, providing for a Controller, of Chemicals exercis­ing wide powers and an order made by the Controller of Chemicals pursuant thereto dated January 16, 1942, respect­ing glycerine (referred to as Order No. C.C. 2-B).
"Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Justice and under and by virtue of the authority conferred by section fifty-five of the Supreme Court Act, is pleased to refer and doth hereby refer the following questions to the Supreme Court of Canada for hearing and consideration, namely:
1. Are the regulations in relation to chemicals dated the 10th of July, 1941, P.C. 4996 aforesaid, ultra vires of the Governor in Council, either in whole or in part and, if so, in what particular or particulars and to what extent?
2. Is the order dated the 16th day of January, 1942, respecting glycerine (referred to as Order No. C.C. 2-B) ultra vires of the Controller of Chemicals either in whole or in part and, if so, in what particular or particulars and to what extent?
(Sgd.) 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 were, pursuant to order of the Court, notified of the hearing of the Reference.
Aimé Geoffrion K.C. and David Mundell for the Attorney-General of Canada.
D. L. McCarthy K.C. and John J. Robinette. counsel appointed by the Supreme Court of Canada pursuant to the provisions of sub-section 5 of section 55 of the Supreme Court Act.
Rosario Genest K.C. for the Attorney-General of Quebec. THE CHIEF JUSTICE: His Excellency the Governor General in Council by an order in council of November 30th, 1942, has been pleased to refer to this Court for hearing and consideration two questions, namely:
1. Are the regulations in relation to chemicals dated the 10th day of July, 1941, P.C. 4996 aforesaid, ultra vires of the Governor in Council either in whole or in part and, if so, in what particular or particulars and to what extent?
2. Is the order dated the 16th day of January, 1942, respecting glycerine (referred to as Order No. C.C. 2-B) ultra vires of the Controller of Chemicals either in whole or in part and, if so, .in what particular or particulars and to what extent?
The Regulations in relation to chemicals (the subject of the first interrogatory) were enacted by an order in council of July 10th, 1941. In this order it is stated that the Minister of Munitions and Supply has, amongst other duties, those of organizing the resources of Canada contributory to the production of munitions of war and supplies and of mobilizing the economic and industrial facilities in respect thereof for the effective prosecution of the present war It is also recited that it is deemed necessary to control, restrict and regulate the production, sale, distribution, consumption and use of chemicals necessary or useful in connection with the production and supply of munitions of war and for the needs of the Government or of the community in war; and the order in council is expressed to be made pursuant to the powers conferred by the Department of Munitions and Supply Act and by the War Measures Act.
By the Regulations a Controller of Chemicals is appointed and his duties and powers are enumerated.
The Order of the Controller of Chemicals, dated the. 16th day of January, 1942 (the subject of the second interrogatory) relates to the control of the production and consumption of, as well as the dealing in, glycerine.
Although the Regulations of the 10th of July, 1941, were enacted pursuant to the powers conferred by the Department of Munitions and Supply Act, as well as by the War Measures Act, it will be unnecessary to discuss the first mentioned statute. The question of substance concerns the scope and effect of the War Measures Act. By section 3 of that Act it is enacted as follows:— 3. The Governor in Council may do and authorize such acts and things, and make from time to time such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada; and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated, that is to say:
(a) Censorship and the control and suppression of publications, writings, maps, plans, photographs, communications and means of communication;
(b) Arrest, detention, exclusion and deportation;
(c) Control of the harbours, ports and territorial waters of Canada, and the movement of vessels;
(d) Transportation by land, air, or water and the control of the transport of persons and things;
(e) Trading, exportation, importation, production and manufacture;
(f) Appropriation, control, forfeiture and disposition of property and of the use thereof.
2. All orders and regulations made under this section shall have the force of law, and shall be enforced in such manner and by such courts, officers and authorities as the Governor in Council may prescribe, and may be varied, extended, or revoked by any subsequent order or regulation; but if any order or regulation is varied, extended or revoked, neither the previous operation thereof nor anything duly done thereunder, shall be affected thereby, nor shall any right, privilege, obligation or liability acquired, accrued, accruing or incurred thereunder be affected by such variation, extension or revocation.
This is a convenient place to notice that the War Measures Act contains specific provisions relating to particular subjects in sections 4, 5, 6, 7, 8, 9, and in the second limb of paragraph 2 of section 3. It may be said at once that in so far as they have not been affected by subsequent legislation, the enactments of these sections would appear to have primacy over the orders and regula­tions of the Governor General in Council under section 3, and it would seem that in case of any inconsistency between these provisions and any order or regulation made under section 3, it is the statute which prevails. The same rule governs the relation between the Department of Munitions and Supply Act and orders and regulations made under the authority of that statute. It would appear that section 4 of the Regulations is not consistent with section 7. of the War Measures Act. Subject to this observation, it is apparent, from inspection, that the subject matters dealt with in the Regulations are matters to which the powers of the Governor General in Council extend under section 3. They are indeed obviously within the scope of the subject matters enumerated in sub-paragraphs (e) and (f).
The order of His Excellency in Council directing the, Reference proceeds inter alia upon these recitals:—
And whereas the Minister of Justice reports that a charge of an offence against an order duly made by a Controller was recently dismissed by a County Court Judge of the county of York in the province of Ontario on the ground that the order of the Governor General in Council conferring power upon the Controller was invalid inasmuch as it constituted a delegation of the authority of the Governor General in Council under the War Measures Act, and that magistrates who have heard other complaints have as a result of this decision either dismissed the complaints or with-held their decisions for the time being;
That the aforesaid method or system of control of essential supplies is in principle identical to that adopted in other fields in connection with the conduct of the war.
And whereas orders and regulations have been made,
(a) to empower ministers of the Crown and other authorized persons, under the Defence of Canada Regulations, to act in relation to matters affecting the security and defence of Canada;
(b) to empower the Wartime Prices and Trade Board and Adminis­trators appointed by the said Board, with the approval of the Governor General in Council, to make orders and regulations to provide against undue enhancement in the prices of goods and services and in rentals for real property;
(c) to provide, under the direction of the National War Labour Board, for the stabilization of wage rates and for the payment of cost of living bonuses;
(d) to empower the Foreign Exchange Control Board to make regu­lations for the control of the importation and exportation of money, securities and foreign exchange;
And whereas the Minister of Justice further reports that in these circumstances it is urgently required in the public interest that the opinion of the Supreme Court of Canada upon the question of the extent of the powers of the Governor General in Council under the War Measures Act be obtained with the least possible delay, which in the opinion of the Minister is an important question of law touching the interpretation of Dominion legislation; and
That typical of the method and system of control adopted are the regulations in relation to chemicals enacted by the Governor General in Council on the 10th day of July, 1941, P.C. 4996, providing for a Controller of Chemicals exercising wide powers and an order made by the Controller of Chemicals pursuant thereto dated January 16, 1942, respecting glycerine (referred to as Order No. C.C. 2-B).
From these recitals it appears that the primary purpose of the Reference is the determination of the question that has been raised as to the power of the Governor General in Council under section 3 of the War Measures Act to delegate authority to subordinate agencies (Boards, Controllers and other officers) to make orders, rules and by-laws generally of the nature of those the Controller of Chemicals is empowered to make by the Regulations of the 10th of July, 1941.
No doubt has been suggested that the various subject matters which have been dealt with by regulation and order, whether by the Governor General in Council direct or by subordinate agencies under a delegated authority, are within the ambit of the powers with which His Excellency is invested by force of section 3. The cardinal matter for consideration is that which concerns the validity of dele­gation to subordinate agencies of the character explained.
The Attorneys-General of the provinces were informed of the Reference, but, in view, no doubt, of the fact that the constitutional validity of the War Measures Act was finally determined by the Privy Council in the Fort Frances case (Fort Frances Pulp & Power Co. v. Manitoba Free Press Co.[1]), no argument was presented on the part of any of the provinces.
The Court invited Mr. D. L. McCarthy K.C. and Mr. J. J. Robinette to file a factum and address to us an argument in opposition to the argument on behalf of the Dominion in support of the validity of the instruments in question, and, accordingly, we had the advantage of a very able argument from them in this sense.
The War Measures Act came before this Court for con­sideration in 1918 in re Gray[2], and a point of capital importance touching its effect was settled by the decision in that case. It was decided there that the authority vested in the Governor General in Council is legislative in its character and an order in council which had the effect 6f radically amending the Military Service Act, 1917, was held to be valid. The decision involved the principle, which must be taken in this Court to be settled, that an order in council in conformity with the conditions prescribed by, and the provisions of, the War Measures Act may have the effect of an Act of Parliament.
In the same case it was also decided, and the point was subsequently settled by the decision of the Judicial Committee in Fort Frances Pulp & Power Co. v. Manitoba Free Press Co. supra[3] that the War Measures Act was validly enacted.
There is, however, an observation which ought to be made touching the sweeping language of section 3, in which are set forth the subject matters to which the authority of the Governor General in Council extends and in which the scope of his powers in relation to those subject matters is indicated. The judgment of the Privy, Council in the last mentioned case laid down the prin­ciple that, in an emergency such as war, the authority of the Dominion in respect of legislation relating to the peace, order and good government of Canada may, in view of the necessities arising from the emergency, displace or overbear the authority of the provinces in rela­tion to a vast field in which the provinces would otherwise have exclusive jurisdiction. It must not, however, be taken for granted that every matter within the jurisdiction of the Parliament of Canada, even in ordinary times, could be validly committed by Parliament to the Executive for legislative action in the case of an emergency
It is not necessary for the purposes of the present Refer­ence to consider whether it is within the power of Par­liament, even in an emergency, to give authority to the Governor General in Council to exercise legislative powers in relation to such matters as, for example, those within the scope of sections 53 and 54 of the British North America Act. It is in the highest degree unlikely that any such question will ever arise touching such matters. But it ought to be observed that, apart from the conditions expressed in the War Measures Act, the validity of any Order, or Regulation, made under the authority of section 3, is affected by a two-fold condition: that it could be enacted as a statute, by Parliament, in execution of its emergency powers, or otherwise; and, furthermore, that Parliament is not precluded by the British North America Act, or by any later lawful enactment concerning its Iegislative powers, from committing the subject matter of it to the Executive Government for legislative action, The application of this two-fold condition does not require consideration on this Reference. I turn now to the conditions prescribed by the War Measures Act itself. As already observed, any Order or Regulation made under the War Measures Act is sub­ject to the specific provisions mentioned above of that statute. Subject to that, the War Measures Act by its terms requires only that the act or thing done, or the order or regulation made, shall be such that the Governor General in Council by reason of (in the present case) "real * * * war" deems it to be necessary or advisable for the security, defence, peace, order and welfare of Canada.
I do not think that in their natural meaning the scope of these words is so narrow as to preclude the Governor General in Council from acting through subordinate agencies having a delegated authority to make orders and rules.
The duty of the Governor General in Council to safeguard the supreme interests of the state, as contemplated by section 3, may, it seems plain, necessitate for its ade­quate performance the appointment of subordinate offi­cers endowed with such delegated authority. I find it impossible to suppose that the authors of that enactment did not envisage the likelihood of the Executive finding itself obliged, in discharging its responsibility in relation to the matters enumerated in sub-paragraphs (a) to (f), to make use of such agencies. As is well-known, during the last war, in the United Kingdom under the statutes known generally as The Defence of the Realm Acts, in which the grant of authority to the Execu­tive was expressed in words less comprehensive than those implied in the War Measures Act, extensive powers were delegated to Boards and Controllers under Regula­tions enacted by orders in council, and the acts of these subordinate agencies were again and again before the courts without question being raised as to the legality of these delegations. The necessity of this procedure is recognized in the Defence of the Realm Act of 1939.
Mr. McCarthy, in his admirable argument, contended that, if such had been the intention of the framers of the statute, explicit provision would have been made for such devolution, as was done in the Defence of the Realm Act of 1939 in the United Kingdom. There would be much force in the suggestion that if the War Measures Act were now being re-enacted the legislation might well be cast in some such form; but the function of a court of law is to give effect to the language which the legislature itself has selected for expressing its intention. I repeat, there is nothing in the words of section 3 that, when read accord­ing to their natural meaning, precludes the appointment of subordinate officials, or the delegation to them of such powers as those in question. Ex facie such measures are plainly within the comprehensive language employed, and I know of no rule or principle of construction requiring or justifying a qualification that would exclude them.
As in respect of any other measure which the Executive Government may be called upon to consider, the duty rests upon it to decide whether, in the conditions confronting it, it deems it necessary or advisable for the safety of the state to appoint such subordinate agencies and to determine what their powers shall be.
There is always, of course, some risk of abuse when wide powers are committed in general terms to any body of men. Under the War Measures Act the final responsi­bility for the acts of the Executive rests upon Parliament. Parliament abandons none of its powers, none of its control over the Executive, legal or constitutional.
The enactment is, of course, of the highest political nature. It is the attribution to the Executive Government of powers legislative in their character, described in terms implying nothing less than a plenary discretion, for securing the safety of the country in time of war. Subject only to the fundamental conditions explained above, (and the specific provisions enumerated), when Regulations have been passed by the Governor General in Council in professed fulfilment of his statutory duty, I cannot agree that it is competent to any court to canvass the considerations which have, or may have, led him to deem such Regulations necessary or advisable for the transcendent objects set forth. The authority and the duty of passing on that question are committed to those who .are responsible for the security of the country —the Executive Government itself, under, I repeat, its responsibility to Parliament. The words are too plain for dispute: the measures authorized are such as the Governor General in Council (not the courts) deems necessary or advisable. True, it is perhaps theoretically conceivable that the Court might be required to conclude from the plain terms of the order in council itself that the Governor General in Council had not deemed the measure to be necessary or advisable, or necessary or advisable by reason of the existence of war. In such a case I agree with Clauson L.J. (as he then was) that the order in council would be invalid as showing on its face that the essential conditions of jurisdiction were not present (Rex v. Comptroller General of Patents[4]); but such theoretical speculations cannot affect the question we have to decide.
It is perhaps advisable to observe also that subordinate agencies appointed by the Governor General in Council are not, by the War Measures Act, outside the settled rule that all statutory powers must be employed in good faith for the purposes for which they are given, although here again, as regards the present Reference, that rule has only a theoretical interest.
One observation of a general character remains. It is possible that in what has been said above it has not been sufficiently emphasized that every order in council, every regulation, every rule, every order, whether emanating immediately from His Excellency the Governor General in Council or from some subordinate agency, derives its legal force solely from the War Measures Act, or some other Act of Parliament. All such instruments
derive their vadidity from the statute which creates the power, and not from the executive body by which they are made (The Zamora[5]);
and the War Measures Act does not, of course, attempt to transform the Executive Government into a legislature, in the sense in which the Parliament of Canada and the legislatures of the provinces are legislatures.
The answer to interrogatory number one is: The Regulations are not ultra vires of the Governor General in Council either in whole or in part, except paragraph four which is ultra vires. No question is before us con­cerning the meaning, or the application, of any of the Regulations.
The answer to interrogatory number two is: The Order is not ultra vires of the Controller of Chemicals either in whole or in part. Here again no question is before us concerning the meaning, or the application, of the Order or any part thereof.
The judgment of Rinfret and Taschereau JJ. was delivered by
RINFRET J.—The War Measures Act (now c. 206 of the Revised Statutes of Canada, 1927) was adopted by Parliament in 1914 to confer certain powers upon the Governor in Council in the event of war, invasion or insurrection.
By reason of the state of war now existing, the Governor General in Council has deemed it necessary or advisable. for the security, defence, peace, order and welfare of Canada to authorize acts and things to be done, and from time to time to make orders and regulations pursuant to the Act aforesaid and, in particular, to control, restrict and regulate by means of controllers the production, sale, distribution, consumption and use of essential supplies; powers have been conferred upon these controllers in the exercise of these numerous orders, and regulations have been made by the controllers affecting the community at large.
A question of general application has arisen as to the authority of the Governor in Council to establish this method and system of control.
It has been found in the public interest that, by virtue of the authority conferred by section 55 of the Supreme Court Act, the opinion of the Supreme Court of Canada upon the question of the extent of the powers of the Governor General in Council under the War Measures Act be obtained; and, for that purpose, as typical of the method and system of control adopted, the Governor Gen­eral in Council has chosen the regulations in relation to chemicals enacted on the 10th day of July, 1941 (P.C. 4996), providing for a controller of chemicals exercising wide powers, and an order made by the controller of chemicals pursuant thereto, dated January 16th, 1942, respecting glycerine (referred to as Order No. C.C. 2-B).
Two questions were referred to the Court for hearing and consideration, namely:
1. Are the regulations in relation to chemicals dated the 10th day of July, 1941, P.C. 4996 aforesaid, ultra vires of the Governor in Council either in whole or in part and, if so, in what particular or particulars and to what extent? 2. Is the order dated the 16th day of January, 1942, respecting glycerine (referred to as Order No. C.C. 2-B) ultra vires of the Controller of Chemicals either in whole or in part and, if so, in what particular or particulars and to what extent?
In the recitals of the Order in Council P.C. 4996, it is stated that the Minister of Munitions and Supply has, amongst other duties, those of organizing the resources of Canada contributory to the production of munitions of war and supplies and of mobilizing the economic and industrial facilities in respect thereof for the effective prosecu­tion of the present war.
It is further recited that it is deemed necessary to control, restrict and regulate the production, sale, distri­bution, consumption and use of chemicals necessary or useful in connection with the supply of munitions of war and for the needs of the community in war.
The order hi council is expressed to be made pursuant to the powers conferred by the Department of Munitions and Supply Act and by the War Measures Act.
A Controller of Chemicals is appointed, and certain powers are conferred upon him which it is not necessary to enumerate for the present purposes.
Under other orders in council, either anterior or posterior to that of the 10th of July, 1941 (P.C. 4996), a Wartime Industries Control Board was established, and it was pro­vided that the power of every controller to fix prices shall be exercised only with the concurrence of the Wartime Prices and Trade Board, and further that no controller's order of general effect throughout Canada, or part of Canada, except an order fixing prices, shall be effective, unless approved by the Chairman of the Wartime Industries Control Board in writing.
The order of the Controller of Chemicals respecting glycerine provides for a very wide control of crude, refined or dynamite glycerine, as to its sale, dealing in, consump­tion, import or export; the general scheme being that none of these things may be done, except under either a permit issued by the controller or a licence issued by the Minister of Trade and Commerce or by the Minister of National Revenue respectively.
In my view, it is not necessary to consider the provisions of the Department of Munitions and Supply Act. The reference would appear to have been made because the regulations enacted by the order in council were adopted, as set out in the recital, to assist the Minister of Munitions and Supply in carrying out the duties imposed upon him by that Act, and it is sufficient, for the purpose of answer­ing the questions submitted, to limit our considerations to the War Measures Act. In turn, no question of con­stitutionality under the B.N.A. Act is raised with regard to the War Measures Act. The Act is within the legis­lative field of the Dominion Parliament (Fort Prances Pulp and Power Co. v. Manitoba Free Press[6]; and it is well established that it is within the power of Parliament, when legislating within its legislative field, to confer subordinate administrative and legislative powers (Hodge v. The Queen[7]; Re Gray[8]; Shannon v. Lower Mainland Dairy Products Board and Attorney-General for British Colum­bia[9]).
The question of the powers of the Governor in Council under the War Measures Act is, therefore, solely one of interpretation of the provisions of that Act, and it is to be determined by reference to those provisions by which the powers were conferred.
The Act has already received authoritative interpreta­tion, both in this Court and in the Judicial Committee of the Privy Council. In the Gray case3, Fitzpatrick CJ., at page 158, said:
It seems to me obvious that parliament intended, as the language used implies, to clothe the executive with the widest powers in time of danger. Taken literally, the language of the section (i.e. section 3 of the Act) contains unlimited powers.
The present Chief Justice of this Court, at p. 166, expressed the following view of the Act:
The words are comprehensive enough to confer authority for the duration of the war to "make orders and regulations" concerning any subject falling within the jurisdiction of parliament—subject only to the conditions that the Governor in Council shall deem such orders and regu­lations to be by reason of the existence of real or apprehended war, etc., advisable.
And, at page 167:
The judgments of the Law Lords in Rex. v. Halliday[10], afford a conclusive refutation of the contention that a general authority to make "orders and regulations" for securing the public defence and safety and for like purposes is, as regards existing law resting on statute, limited to the functions of supplementing some legislative enactment or carrying it into effect and is not adequate for the purpose of super-session. The authority conferred by the words quoted is a law-making authority.
And it is as well immediately to set out here the following further quotations from the judgment of my Lord the Chief Justice in the Gray case[11] :
It is the function of a court of law to give effect to the enactments of the legislature according to the force of the language which the legis­lature has finally chosen for the purpose of expressing its intention. Speculation as to what may have been passing in the minds of the members of the legislature is out of place, for the simple reason that it is only the corporate intention so expressed with which the court is concerned (p. 169).
The authority devolving upon the Governor in Council is, as already observed, strictly conditioned in two respects: First—It is exercisable during war only.
(Nota bene. In connection with this first condition, reference may be had to the subsequent judgment of the Privy Council in the Fort Frances case[12], whereby it was decided that a Dominion Act passed after the cessation of hostilities for continuing the control of newsprint paper until the proclamation of peace, with power to conclude matters then pending, was intra vires, in view of certain circumstances there mentioned.)
Secondly—The measures passed under it must be such as the Governor in Council deems advisable by reason of war (p. 170).
In the case of the War Measur