R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd.

R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd.
Collection
Supreme Court Judgments
Date
1983-12-15
Report
[1983] 2 SCR 551
Case number
17175, 17176
Judges
Laskin, Bora; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Chouinard, Julien; Wilson, Bertha
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 17176, 17175
Decision Content
Supreme Court of Canada
R. v. Eldorade Nuclear Ltd., [1983] 2 S.C.R. 551
Date: 1983-12-15
Her Majesty The Queen Appellant;
and
Eldorado Nuclear Limited—Eldorado Nucléaire Limitée Respondent.
and between
Her Majesty The Queen Appellant;
and
Uranium Canada Limited—Uranium Canada Limitée Respondent.
File Nos.: 17175 and 17176.
1983: January 27; 1983: December 15.
Present: Laskin C.J. and Ritchie, Dickson, Beetz, Mclntyre, Chouinard and Wilson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Crown immunity—Combines investigation—Crown corporations charged with conspiracy to lessen competition—Whether corporations entitled to Crown immunity—Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c) [rep. & sub. 1974-75-76 (Can.), c. 76, s. 14]—Interpretation Act, R.S.C. 1970, c. I-23, ss. 16, 27(2)—Atomic Energy Control Act, R.S.C 1970, c. A-19,s. 10—Government Companies Operation Act, R.S.C 1970, c. G-7, ss. 2 [am. 1974-75-76 (Can.), c. 33, s. 265 (Item 4)], 3, 6.
The respondents were charged under s. 32(1)(c) of the Combines Investigation Act of conspiring with others to unduly lessen competition in the production or sale of uranium products in Canada. They applied to the Supreme Court of Ontario for an order prohibiting the Provincial Court from proceeding to inquire into the charges on the basis that the Provincial Court lacked jurisdiction to proceed because they were agents of the Crown and therefore the Combines Investigation Act did not apply. The Supreme Court granted the applications and the Court of Appeal upheld the decision. This appeal is to determine whether respondents are immune from criminal liability under s. 32(1)(c) of the Combines Investigation Act because they are agents of the Crown. Held (Mclntyre and Wilson JJ. dissenting in part): The appeals should be dismissed.
Per Laskin C.J. and Ritchie, Dickson, Beetz and Chouinard JJ.: The Combines Investigation Act is not binding on the Crown. Section 16 of the Interpretation Act makes it clear that the Crown is immune unless expressly bound. There is no section in the Combines Investigation Act or the Interpretation Act which makes the Act applicable to Her Majesty. The effect of Crown immunity is not that the Crown is immune from prosecution even though there has been an unlawful act, rather, there is no unlawful act under the statute because the statute does not apply to the Crown. Crown immunity extends to agents and servants because the Crown only acts through agents and servants. The respondents are each by statute “for all its purposes an agent of Her Majesty”. A Crown agent is only entitled to immunity when it acts within the scope of the public purposes it is statutorily empowered to pursue. Prima facie, the conduct complained of was within the scope of Crown purposes, for which the companies were incorporated—namely, to implement national policy relating to atomic energy in all its aspects. No evidence was presented or alluded indicating that the companies acted outside corporate objects for other than Crown purposes. Accordingly, there is no merit in the appellant’s submission that the prohibition orders were premature.
[Canadian Broadcasting Corporation v. The Queen, [1983] 1 S.C.R. 339, distinguished; Canadian Broadcasting Corporation v. Attorney-General for Ontario, [1959] S.C.R. 188; Province of Bombay v. City of Bombay, [1947] A.C. 58; Conseil des Ports Nationaux v. Langelier, [1969] S.C.R. 60; considered; Her Majesty in Right of the Province of Alberta v. Canadian Transport Commission, [1978] 1 S.C.R. 61; Bank voor Handel en Scheepvaart N.V. v. Administrator of Hungarian Property, [1954] A.C. 584; Willion v. Berkley (1561), 1 Plowd. 223, 75 E.R. 339; Bonanza Creek Gold Mining Co. v. The King, [1916] 1 A.C. 566; Feather v. The Queen (1865), 122 E.R. 1191; Formea Chemicals Ltd. v. Polymer Corporation Ltd., [1968] S.C.R. 754; R. v. Stradiotto, [1973] 2 O.R. 375; Metropolitan Meat Industry Board v. Sheedy, [1927] A.C. 899; Tamlin v. Hannaford, [1950] 1 K.B. 18; British Columbia Power Corp. v. Attorney-General of British Columbia (1962), 34 D.L.R. (2d) 25, referred to.]
APPEALS from a judgment of the Ontario Court of Appeal (1982), 138 D.L.R. (3d) 626, 68 C.C.C. (2d) 200, 39 O.R. (2d) 474, 21 B.L.R. 72, affirming a judgment of J. Holland J. (1982), 138 D.L.R. (3d) 626, 68 C.C.C. (2d) 200, 38 O.R. (2d) 130, 17 B.L.R. 275, granting an application for a writ of prohibition. Appeals dismissed, Mclntyre and Wilson JJ. dissenting in part.
John W. Brown, Q.C, Calvin S. Goldman and Michael R. Dambrot, for the appellant.
P.Y. Atkinson and F.D. Cass, for the respondent Eldorado Nuclear Ltd.
Gordon F. Henderson, Q.C., and Emilio Binavince, for the respondent Uranium Canada Ltd.
The judgment of Laskin C.J. and Ritchie, Dickson, Beetz and Chouinard JJ. was delivered by
DICKSON J.—The question is whether respondents, Uranium Canada Limited (“Uranium Canada”) and Eldorado Nuclear Limited (“Eldorado”), are immune from criminal liability under s. 32(1)(c) of the Combines Investigation Act, R.S.C. 1970, c. C-23, because they are agents of the Crown.
I The Proceedings to Date
By informations sworn July 4 and July 7, 1981 by Orest R. Sametz, Combines Investigation Officer, the respondents and others were charged with having conspired, combined, agreed or arranged together and with another to prevent or lessen, unduly, competition in the production, manufacture, purchase, sale or supply in Canada of uranium, uranium oxide and other uranium substances, contrary to s. 32(1)(c) of the Combines Investigation Act. A summons was issued to each of the respondent Companies. Each appeared before Judge Rice of the Ontario Provincial Court (Criminal Division). Tentative dates were set for a preliminary inquiry. Before the commencement of the inquiry, each Company applied to the Supreme Court of Ontario for an order prohibiting Judge Rice or any other judge from proceeding to inquire into the charges. It was contended that the Provincial Court lacked jurisdiction to proceed because they were agents of the Crown and therefore the Combines Investigation Act did not apply.
Although Uranium Canada and Eldorado were charged in separate informations, the two prohibition applications were heard together, by agreement. Notwithstanding certain differences in the legal origins of the two Companies, the two cases raise similar issues, and it is convenient to deal with both in a single judgment.
The prohibition applications were successful in the court of first instance. Mr. Justice J. Holland found that under the express terms of their governing statutes neither Company could act other than as an agent of the Crown, and, since the Combines Investigation Act did not bind Her Majesty, either expressly or by necessary implication, the conduct complained of in the charges could not be characterized as criminal. There was accordingly no foundation upon which the charges could be validly laid or prosecuted.
In an oral judgment the Ontario Court of Appeal upheld the prohibition orders. Cory J.A., Houlden and Thorson JJ.A. concurring, concluded:
(i) the Combines Investigation Act does not apply to the Crown because of s. 16 of the Interpretation Act, R.S.C. 1970, c. I-23;
(ii) by virtue of the statutes under which Uranium Canada and Eldorado are constituted, each Company is an agent of Her Majesty for all its purposes, and may act in no other capacity than as agent of the Crown;
(iii) the two Companies are authorized by their respective corporate objects clauses and relevant legislation to perform the acts complained of in the charges against them; and (iv) in carrying out such corporate purposes Uranium Canada and Eldorado are entitled to the same immunity from prosecution as the sovereign.
The Court of Appeal took this further point. Both the preamble and the specific provisions of the Atomic Energy Control Act, R.S.C. 1970, c. A-19, emphasize it is in the national interest to control and supervise atomic energy. The specific provisions of the Act should therefore prevail over the general provisions of the Combines Investigation Act. It followed that the Combines Investigation Act does not apply to the two Companies.
The appeal to this Court by the Attorney General of Canada is based on the submission that the Combines Investigation Act is binding on the Crown; in the alternative, that even if the Combines Investigation Act does not bind the Crown, Uranium Canada and Eldorado cannot claim Crown immunity for the following reasons:
(i) Nothing in the corporate objects of either Company, nor in the statutory provisions governing the Companies’ corporate existence, nor in the Atomic Energy Control Act itself, authorizes either Company to conspire, combine or agree to lessen unduly competition in the production, manufacture, purchase, sale or supply of uranium.
(ii) Although breaches of the Combines Investigation Act are not authorized by either Company’s corporate objects, nevertheless both Companies have the capacity, as opposed to the legal power, to commit criminal acts for which they may be held responsible.
(iii) By statute each Company is “for all its purposes” an agent of the Crown, but the words “its purposes” should be construed as meaning lawful purposes, such that the Companies will be agents of Her Majesty only when carrying out corporate purposes and exercising corporate powers in a lawful manner.
(iv) Uranium Canada and Eldorado are entitled to Crown immunity only when acting within their authority in furtherance of Crown purposes.
(v) There was no evidence before the Court of Appeal upon which to base a finding that Uranium Canada and Eldorado had not exceeded their respective corporative authorities. It is implicit in the fact that the information charges an offence contrary to s. 32(1) of the Combines Investigation Act that the Attorney General takes the position that the accused were not authorized to do the acts constituting the offence. Whether the accused exceeded authority is a factual matter to be determined from evidence which the Attorney General will lead in proof of the charge. Hence the prohibition orders were premature.
II Does the Combines Investigation Act bind the Crown?
The doctrine of Crown immunity from statutes is a very old common law doctrine. In 1457 Ashton J. stated, Y.B. 35 H.6, f.62:
quant un remedy soit fait pur un statute ce ne serra entendu en contre le roy s’il ne soit pas expressement reherse.
That wording may seem to be quite broad, but it has been suggested by H. Street, in “The Effect of Statutes upon the Rights and Liabilities of the Crown”, (1948) 7 U. of T.L.J. 357 at p. 361, that this had application only to the King’s prerogative and was therefore relatively narrow. It can at least be said that, a century later, the Court of Appeal in Willion v. Berkley (1561), 1 Plowd. 223, 75 E.R. 339, recognized clear limits on the extent of Crown immunity. The case concerned a statute involving the right to alienate land. The majority of the Court decided the King was bound, though there were no express words to that effect. Dyer C.J. said this at pp. 251-52:
And as to what is said, that the King shall not be bound by the Act, and that there shall not be any restraint in the estate which he takes, unless the same be precisely expressed in the Act, sir, in some cases I admit that the King shall not be restrained by general words, without express restraint in the Act, and that is according to the matter of the Act; but in this Act he shall be bound, for it is made for the furtherance of restitution, that is to say, where it was a great abuse that the donee had the power of aliening after issue had, (which being a common error was taken for the common law) this statute was made to reform the abuse, and to restore the common law in this point to its right and just course, which it did by restoring to the donor the observance of his intent. So that the design of the Act is to give restitution, and in restitutions the King has no favour, nor has his prerogative any exemption, but the party restored is favoured. [Footnotes omitted]
Brown J. said, at p. 248 “it is a difficult argument to prove that a statute, which restrains men generally from doing wrong, leaves the King at liberty to do wrong”. Street describes the law of that time in the following way, at p. 362:
By 1561 it had been established that the crown was bound by a statute which was intended to bind it, and it is clear that where the statute affected the subject’s rights rather than the crown’s, the courts would readily read into the statute an intention to bind the crown. On the contrary, there was a strong presumption that a general statute would not affect the king’s prerogative rights unless he were named in it.
Street’s thesis is that the modern common law position is based on a misunderstanding of the precedents. Whether or not this is true, and Street does make a persuasive case, it is clear that the current common law position embraces a broad notion of Crown immunity. In Province of Bombay v. City of Bombay, [1947] A.C. 58, the Privy Council held that the Crown was only bound by statute if expressly named therein, unless the Crown were bound by necessary implication. The latter concept was explained, at p. 63, in the following terms:
If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound.
The Bombay test makes no differentiation between types of statutes involved, or types of rights or obligations imposed. This Court relied on the Bombay test in Her Majesty in Right of the Province of Alberta v. Canadian Transport Commission, [1978] 1 S.C.R. 61. I note in passing that the Attorney General is not submitting in this appeal, as he apparently did in the courts below, that the Crown is bound by the necessary implication doctrine.
Parliament has followed the lead of the common law, and taken the development one step further. Section 16 of the Interpretation Act removes even the necessary implication exception:
No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except only as therein mentioned or referred to.
The conceptual rationale underlying the doctrine of Crown immunity is obscure. In Bonanza Creek Gold Mining Co. v. The King, [1916] 1 A.C. 566, the Privy Council said, at p. 586:
…it is the general rule in the construction of statutes that the Crown is not affected unless there be words to that effect, inasmuch as the law made by the Crown with the assent of the Lords and Commons is enacted prima facie for the subject and not for the Sovereign.
Why that presumption should be made is not clear. It seems to conflict with basic notions of equality before the law. The more active government becomes in activities that had once been considered the preserve of private persons, the less easy it is to understand why the Crown need be, or ought to be, in a position different from the subject. This Court is not, however, entitled to question the basic concept of Crown immunity, for Parliament has unequivocally adopted the premise that the Crown is prima facie immune. The Court must give effect to the statutory direction that the Crown is not bound unless it is “mentioned or referred to” in the enactment.
The Combines Investigation Act contains no section purporting to make the Act applicable to Her Majesty. Prima facie then, because of s. 16 of the Interpretation Act, the Combines Investigation Act is not binding on the Crown. The Attorney General, however, makes two arguments directed to showing that the Combines Investigation Act does apply to the Crown.
The first argument turns on the fact that s. 32 of the Combines Investigation Act, on which the charges in this case are based, was at one time s. 411 of the Criminal Code, 1953-54 (Can.), c. 51. In 1960 Parliament enacted An Act to amend the Combines Investigation Act and the Criminal Code, 1960 (Can.), c. 45, which repealed s. 411 of the Code and re-enacted the provision as s. 32 of the Combines Investigation Act. Section 22 of the 1960 amending legislation also contained the following provision:
Except to the extent that subsection (1) of section 32 of the Combines Investigation Act as enacted by this Act is not in substance the same as section 411 of the Criminal Code as in force immediately before the coming into force of this Act, the said subsection (1) of section 32 of the Combines Investigation Act shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the said section 411 of the Criminal Code.
The Attorney General makes the point that both s. 411 of the 1953-54 Criminal Code and s. 32 of the Combines Investigation Act used the words “every one”, which were defined in s. 2(15) of the 1953-54 Criminal Code (as it still is today) in the following terms:
‘every one’, ‘person’, ‘owner’, and similar expressions include Her Majesty and public bodies, bodies corporate, societies, companies and inhabitants of counties, parishes, municipalities or other districts in relation to the acts and things that they are capable of doing and owning respectively;
Relying on the above-quoted provision in the 1960 amending legislation, the Attorney General submits that the words “every one” in s. 32 of the Combines Investigation Act now have the meaning it had when the section was part of the Criminal Code, and s. 32 of the Combines Investigation Act therefore applies to the Crown.
The flaw in the Attorney General’s first argument is that the definitions in s. 2 of the Criminal Code begin with the words “In this Act”. In other words, in the absence of a provision expressly incorporating the Criminal Code definition of “every one” into the Combines Investigation Act, the definition applies only in the Code itself. In my opinion the provision in the 1960 amending statute to the effect that s. 32 of the Combines Investigation Act should not “operate as new law” is not sufficient to overcome express words in the Criminal Code that restrict the definition of “every one” to that Act. Section 16 of the Interpretation Act requires an express provision to make an act binding on the Crown. The giving of royal assent amounts to a waiver of immunity. In the Court’s decision in Canadian Broadcasting Corporation v. Attorney-General for Ontario, [1959] S.C.R. 188 (the 1959 CBC case), both the majority and dissent agreed that clear language was needed to bind the Crown. The “shall not be held to operate as new law” stipulation in the 1960 amending Act is far too vague and oblique a reference to have the effect for which the Attorney General contends.
The Attorney General’s second argument is to the effect that the Criminal Code definition of “every one” is inferentially imported into the Combines Investigation Act by s. 27(2) of the Interpretation Act which reads:
All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of the Criminal Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides. The Attorney General submits that the definition of “every one” in s. 2 of the Code is a provision “relating to indictable offences” and as such it applies to offences created by the Combines Investigation Act.
With respect, I disagree. The gist of this argument is that s. 27(2) of the Interpretation Act incorporates the Criminal Code definition of “every one” into all federal penal enactments, thereby making all such enactments binding on the Crown, “except to the extent that the enactment otherwise provides”. This cannot be right because it is directly contrary to the express words of s. 16 of the Interpretation Act, which provides that “No enactment is binding on Her Majesty… except only as therein mentioned or referred to”. Section 16 makes the Crown immune unless expressly bound, and it cannot be that s. 27 of the same Act binds the Crown unless expressly exempted. In my view s. 27(2) of the Interpretation Act does not import the Criminal Code definition of “every one” into the Combines Investigation Act, and it does not make the latter Act binding on the Crown.
Even if the Attorney General could succeed in showing that the Criminal Code definition of “every one” is incorporated into the Combines Investigation Act, he woud still face the obstacle posed by the decision in the 1959 CBC case, supra, where the majority held that the Criminal Code definition of the word “person”, which is identical to the definition of “every one”, did not make the Lord’s Day Act binding on the Crown, even though that Act expressly incorporated the Criminal Code definition. The majority view was that the provision that “person” included Her Majesty was not sufficiently clear to make the Crown criminally liable; it was read as stipulating that Her Majesty could be a victim of crime. The Interpretation Act, however, has been amended since this judgment was rendered. In 1959 the exception recognized by the section was: “unless it is expressly stated therein that Her Majesty is bound thereby”. The new exception clause reads: “except only as therein mentioned or referred to”. It is not necessary to determine whether the 1959 CBC case was rightly decided or whether the result in the case would be the same under the new version of s. 16; for present purposes it is enough to observe that there is some doubt whether the definition of “every one” in the Criminal Code has the effect of making the Code, and any enactment incorporating that definition, binding on the Crown.
For the above reasons, then, the submission of the Attorney General that the Combines Investigation Act binds the Crown must fail. The question that remains is whether Uranium Canada and Eldorado are entitled to the benefit of the Crown’s immunity from the prohibitory terms of the Combines Investigation Act.
III Are Eldorado Nuclear and Uranium Canada entitled to Crown Immunity?
In Canada, the head of state is Her Majesty the Queen, the reigning monarch of the United Kingdom. By providing that “no enactment is binding on Her Majesty… except only as therein mentioned or referred to”, Parliament has put the state, commonly referred to as the Crown, beyond the reach of Acts of Parliament that are not expressly made applicable to the Crown.
Like a corporation, the Crown must act through agents or servants. Assuming for the moment that Uranium Canada and Eldorado were acting as agents of the Crown, where do they stand vis-à-vis the Combines Investigation Act? The Attorney General submits that even if the Crown is immune, agents of the Crown may be personally liable for breaches of the civil or criminal law. It is argued that the principles applicable to civil and criminal responsibility are the same. The conclusion reached is that a Crown agent may be criminally responsible under the Combines Investigation Act.
The Attorney General relies on this Court’s decision in Conseil des Ports Nationaux v. Langelier, [1969] S.C.R. 60. This was a delict case. During the course of his reasons Martland J., speaking for the Court, said this, at p. 70:
What is in issue here is the responsibility of a person, whether individual or corporate, who, though a Crown agent, and purporting to act as such, commits an act which is unlawful. My understanding of the law is that a personal liability will result. The liability arises, not because he is an agent of the Crown, but because, though he is an agent of the Crown, the plea of Crown authority will not avail in such event.
This passage properly states the law, but I do not agree it produces the result for which the Attorney General contends.
At common law, the Sovereign could not be brought into the Queen’s courts in the ordinary way. This arose from an immunity of the Sovereign from court process. This immunity was distinct from the immunity of the Sovereign under statutes. Immunity from court process did not, however, leave the subject without any civil remedy. For certain matters, such as breach of contract, the procedure of petition of right was available to settle disputes between the Crown and a subject. In tort the Queen could not be sued but that did not prevent an agent of the Queen from being sued. In Feather v. The Queen (1865), 122 E.R. 1191 (C.A.), one of the authorities relied upon by Martland J., Cockburn C.J. speaking for the Court, said this, at pp. 1205-06:
For the maxim that the King can do no wrong applies to personal as well as to political wrongs; and not only to wrongs done personally by the Sovereign, if such a thing can be supposed to be possible, but to injuries done by a subject by the authority of the Sovereign. For, from the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorize wrong. For to authorize a wrong to be done is to do a wrong; inasmuch as the wrongful act, when done, becomes, in law, the act of him who directed or authorized it to be done. It follows that a petition of right which complains of a tortious act done by the Crown, or by a public servant by the authority of the Crown, discloses no matter of complaint which can entitle the petitioner to redress. As in the eye of the law no such wrong can be done, so, in law, no right to redress can arise; and the petition therefore, which rests on such a foundation falls at once to the ground. Let it not, however, be supposed that a subject sustaining a legal wrong at the hands of a minister of the Crown is without a remedy. As the Sovereign cannot authorize wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown… But in our opinion no authority is needed to establish that a servant of the Crown is responsible in law for a tortious act done to a fellow subject, though done by the authority of the Crown—a position which appears to us to rest on principles which are too well settled to admit of question, and which are alike essential to uphold the dignity of the Crown on the one hand, and the rights and liberties of the subject on the other.
The maxim that the Queen can do no wrong is a legal fiction which, at common law, serves the purpose of preventing the Queen from being impleaded in her own courts. There is, however, no comparable maxim that an agent of the Queen can do no wrong.
The conclusion that a Crown agent is personally responsible for an unlawful act still leaves the question whether the act is unlawful. Where the unlawfulness or the wrongfulness of the act arises without any recourse to a statute, the Crown’s immunity from statute, as expressed in s. 16 of the Interpretation Act, is irrelevant. If, for example, the agent commits a tortious act, it is the common law which characterizes it as unlawful. There is no immunity that the agent can claim.
Where the only source of the unlawfulness is a statute, however, the analysis is entirely different. Reference to a statute is necessary for criminal responsibility in Canada, apart from contempt of court, because s. 8 of the Criminal Code precludes any conviction for an offence at common law. If a person commits an act prohibited by statute, and the Attorney General seeks to prosecute for violation of that statute, the preliminary question that must be asked is whether that person is bound by the statute. If not, the person simply does not commit a violation of the statute. The situation is not that the person is immune from prosecution even though there has been an unlawful act; rather, that there has been no unlawful act under the statute. I have already said that the Combines Investigation Act does not bind the Crown. If Uranium Canada and Eldorado share the Crown’s immunity, they can have committed no offence under the Act.
Both the majority and the dissent in the 1959 CBC case, supra, accepted that proposition of law that s. 16 of the Interpretation Act extends to agents of the Crown. This Court’s decision in Formea Chemicals Ltd. v. Polymer Corporation Ltd., [1968] S.C.R. 754 also makes it clear that a reference to the Crown in a statute extends to Crown agents. If this were not the interpretation given to s. 16, the section would have no meaning, since the Crown only acts through servants and agents. Crown agents benefit from Crown immunity because they are acting on behalf of the Crown. The critical question, then, is whether Uranium Canada and Eldorado were acting as agents.
Uranium Canada and Eldorado are each, by statute, expressly made “an agent of Her Majesty”. Uranium Canada owes its status as a Crown agent to s. 10(4) of the Atomic Energy Control Act, which reads:
A company is for all its purposes an agent of Her Majesty and its powers may be exercised only as an agent of Her Majesty.
Eldorado’s agency status derives from the Government Companies Operation Act, R.S.C. 1970, c. G-7; section 3 reads:
Every Company is for all its purposes an agent of Her Majesty and its powers may be exercised only as an agent of Her Majesty.
The fact that these statutory provisions make each of the respondent Corporations “for all its purposes” an agent of the Crown does not mean, however, that these Companies act as Crown agents in everything they do.
Statutory bodies such as Uranium Canada and Eldorado are created for limited purposes. When a Crown agent acts within the scope of the public purposes it is statutorily empowered to pursue, it is entitled to Crown immunity from the operation of statutes, because it is acting on behalf of the Crown. When the agent steps outside the ambit of Crown purposes, however, it acts personally, and not on behalf of the state, and cannot claim to be immune as an agent of the Crown. This follows from the fact that s. 16 of the Interpretation Act works for the benefit of the state, not for the benefit of the agent personally. Only the Crown, through its agents, and for its purposes, is immune from the Combines Investigation Act.
This Court recently adopted this approach in Canadian Broadcasting Corporation v. The Queen, [1983] 1 S.C.R. 339 (the 1983 CBC case), where the CBC sought immunity in relation to charges of showing an obscene film contrary to s. 159(1)(a) of the Criminal Code. The CBC is established under the Broadcasting Act, R.S.C. 1970, c. B-l 1; section 40(1) of that Act provides as follows:
Except as provided in subsection 38(3), the Corporation is, for all purposes of this Act, an agent of Her Majesty, and its power under this Act may be exercised only as an agent of Her Majesty.
This Court upheld the decision of the Ontario Court of Appeal that the CBC could be prosecuted under the Criminal Code, notwithstanding it was an agent of the Crown. In the Court of Appeal and here, the key to this result was a Regulation promulgated under the Broadcasting Act which prohibited the broadcast of any “obscene, indecent or profane… presentation”. The CBC was charged with breach of the Criminal Code, not with breach of the Broadcasting Regulations, but the Regulation was important because the Broadcasting Act made the Corporation a Crown agent “for all purposes of this Act”, and the Regulation demonstrated that in broadcasting an obscene film the Corporation was not acting for purposes entrusted to it under the Act. This Court expressly adopted the following passage from the judgment of the Ontario Court of Appeal (at p. 353): In my view, when the Corporation exercises its powers with a view to carrying out the purposes of the Broadcasting Act, it acts as agent of Her Majesty and only as agent of Her Majesty. But, when it exercises its powers in a manner inconsistent with the purposes of the Act, it steps outside its agency role. That role subsists only so long as the Corporation’s broadcasts are implementing the policy laid down in the Act. This seems to me to be the effect of s. 40(1).
When the present proceedings were before the Ontario Court of Appeal this Court had not rendered judgment in the 1983 CBC case. The Court of Appeal distinguished its own decision in that case on the basis that the Broadcasting Act makes the CBC a Crown agent “for all purposes of this Act” while the Atomic Energy Control Act and the Government Companies Operation Act make each of the respondents in this appeal an agent of the Crown “for all its purposes”. The Court of Appeal thought the latter words were broader than the words of the Broadcasting Act, and under the statutory provisions at issue here “there are no limits on the status of the agency”.
With respect, I disagree. The Broadcasting Act uses the words “purposes of this Act” in the agency clause because the CBC is established by the Broadcasting Act and derives its corporate objects and powers from that Act (ss. 34(1), 39). Uranium Canada and Eldorado, on the other hand, are not created by the Atomic Energy Control Act or the Government Companies Operation Act, but are incorporated under the Canada Corporations Act and receive their corporate objects and powers from that statute and from their letters patent. Under these circumstances, it would be inappropriate for the Atomic Energy Control Act or the Government Companies Operation Act to refer to the “purposes of this Act” in the agency clauses. For this reason I cannot accept that the difference in wording has the significance the Ontario Court of Appeal attributed to it. In my opinion, any limitations that might be imposed on the CBC’s agency status by the words “purposes of this Act” are also imposed on the agency of Uranium Canada and Eldorado by the words “its purposes”. That being so, the 1983 CBC case makes the same point as the present one: a Crown agent is entitled to the benefit of the immunity afforded by s. 16 of the Interpretation Act only when it acts within the scope of the Crown purposes it is authorized to serve.
I think it is also important to draw a distinction between (i) acts committed in the course of fulfilling Crown purposes but in no way undertaken in order to effect Crown purposes; and (ii) those acts committed which are designed to effect Crown purposes. Whereas the latter situation does invoke Crown immunity, the former does not. I refer, by way of illustration, to R. v. Stradiotto, [1973] 2 O.R. 375 (C.A.). In that case a member of the militia was charged with careless driving under the Ontario Highway Traffic Act. At the time, Stradiotto was driving a Department of National Defence vehicle while in his official militia duties. The Ontario Court of Appeal rejected the claim of Crown immunity on the basis that Stradiotto could have effected Crown purposes without violating The Highway Traffic Act. I agree with the result reached in Stradiotto, but not with the reasoning of the Ontario Court of Appeal. In my view, the reason Crown immunity could not be invoked was that the careless driving was wholly incidental to official militia purposes. The careless driving was in no manner in the furtherance of the Crown purposes of the militia. In driving carelessly, Stradiotto stepped outside Crown purposes and no longer was acting as agent. Accordingly, he could not claim immunity.
Against this background, can it be said that the acts alleged in the indictments here in question fall within the purposes of Uranium Canada and Eldorado? I will deal firstly with Uranium Canada.
Section 10(1) of the Atomic Energy Control Act provides that the Minister responsible for the Act may:
(b) with the approval of the Governor in Council, utilize, cause to be utilized and prepare for the utilization of atomic energy;
(c) with the approval of the Governor in Council, acquire, or cause to be acquired by purchase, lease, requisition or expropriation, prescribed substances and any mines, deposits or claims of prescribed substances and patent rights relating to atomic energy and any works or property for production or preparation for production of, or for research or investigation with respect to, atomic energy;
Section 10(2)(a) of the Act gives the Minister authority to procure the incorporation of companies under Part I of the Canada Corporations Act, R.S.C. 1970, c. C-32 , for the purpose of exercising and performing on behalf of the Minister such of the powers conferred upon him by s. 10(1) of the Atomic Energy Control Act as the Minister may from time to time direct.
Part I of the Canada Corporations Act , referred to in s. 10(2)(a) of the Atomic Energy Control Act, deals with the formation of new companies, and makes provision for matters typically dealt with in business corporation statutes, such as the powers and duties of companies, transfer of shares, alteration or reduction of share capital, calls, borrowing powers, and so on.
On June 21, 1971 Uranium Canada was incorporated under Part I of the Canada Corporations Act by the Minister of Energy, Mines and Resources pursuant to his powers under s. 10(2) of the Atomic Energy Control Act. The Company’s letters patent set out its objects as follows:
(a) to exercise and perform on behalf of the Minister of Energy, Mines & Resources the powers, respon- sibilities, duties and obligations that may be imposed upon the Company pursuant to contracts to be entered into with the approval of the Governor in Council pursuant to the authority of Vote L-11 c of the Appropriation Act No. 1, 1971;
(b) to exercise and perform such other powers conferred on the Minister by subsection 1 of section 10 of the Atomic Energy Control Act, 1946, as amended by S.C. 1954, chapter 47, as the Minister may from time to time direct.
By supplementary letters patent issued June 10, 1975, Uranium Canada’s objects were amended by adding thereto paragraph (c) which reads:
to negotiate, execute and perform agreements for the purchase, stockpiling and sale of uranium concentrates and to do or procure the doing of anything necessary or incidental thereto, all subject to the approval of the Governor in Council.
Vote L-11c referred to in paragraph (a) of the Company’s objects is as follows:
Acquisition in fiscal years 1970-71, 1971-72, 1972-73, 1973-74 and 1974-75 of uranium concentrates in accordance with contracts to be entered into, with the approval of the Governor in Council, with Denison Mines Limited including authority to sell the uranium concentrates acquired under the said contracts and to appoint a sales agent for such purpose.
During the period covered by the charges in this case all the shares of Uranium Canada, except qualifying shares of the directors, were held by the Minister of Energy, Mines and Resources in trust for Her Majesty in right of Canada. All of the Company’s directors and officers were senior officials in various departments and branches of government, including External Affairs; Energy, Mines and Resources; Finance; Industry, Trade and Commerce; Justice; the Privy Council Office; and the Natural Sciences and Engineering Research Council. Uranium Canada conducts its affairs in, and has no place of business separate from, the offices of the Department of Energy, Mines and Resources. It has no employees of its own. Its total assets are $9 received in payment for directors’ qualifying shares.
In broad terms, Uranium