Labatt Breweries of Canada Ltd. v. Attorney General of Canada

Labatt Breweries of Canada Ltd. v. Attorney General of Canada
Collection
Supreme Court Judgments
Date
1979-12-21
Report
[1980] 1 SCR 914
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves; McIntyre, William Rogers
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Food and drugs
Decision Content
Supreme Court of Canada
Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914
Date: 1979-12-21
Labatt Breweries of Canada Limited (Plaintiff) Appellant;
and
The Attorney General of Canada (Defendant) Respondent;
and
The Attorney General of the Province of Quebec Intervenant.
1979: June 27, 28; 1979: December 21.
Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Food and drugs—Standards for labelling—Beer labelled “Special Lite”—Likely to be mistaken for “Light Beer”—Food and Drugs Act, R.S.C. 1970, c. F-27, ss. 6, 25(1)—Food and Drug Regulations, C.R.C., c. 870, ss. B.02.130 to B.02.135.
Constitutional law—Food and Drugs Act—Invalidity of provisions establishing standards for beer—British North America Act, 1867, ss. 91, 91(2), 91(27), 92(13)—Food and Drugs Act, R.S.C. 1970, c. F-27, ss. 6, 25(1)—Food and Drug Regulations, C.R.C., c. 870, ss. B.02.130 to B.02.135.
The appellant began marketing a new brand of beer which it labelled “Labatt’s Special Lite”. The product contained 4 per cent alcohol (as indicated on the label) whereas according to the standard prescribed by the Food and Drug Regulations a “Light Beer” should contain no more than 2.5 per cent alcohol. The appellant sought a declaration that its product “is not likely to be mistaken for a light beer within the standard set out” in regulation B.02.134 enacted pursuant to s. 25(1)(c) of the Food and Drugs Act. The trial judge found that the appellant had not violated s. 6 of the aforesaid Act and granted the declaration. The Federal Court of Appeal came to the opposite conclusion and set aside the judgment of the Trial Division. Hence the appeal to this Court on two questions: (1) Whether appellant violated s. 6 of the Food and Drugs Act; (2) Whether ss. 6 and 25(1)(c) of the Act and regulations B.02.130 to 135 inclusive were constitutionally valid. Held by Martland, Ritchie, Dickson, Beetz and Estey JJ. (Laskin C.J. and Pigeon and Mclntyre JJ. dissenting): The appeal should be allowed with costs and a declaration issue that s. B.02.130 to B.02.135 of the Food and Drug Regulations are invalid and that ss. 6 and 25(1)(c) of the Food and Drugs Act are ultra vires Parliament in so far as they relate to malt liquors. Held by Pratte J.: The appeal should be allowed with costs and the judgment of the trial judge restored.
Per Martland, Dickson, Beetz and Estey JJ.: The sale of Labatt’s Special Lite Beer, unless labelled simply as “beer”, being the common name prescribed for use with reference to a product which conforms to the standards of beer as prescribed in the regulations, is a violation of s. 6 of the statute, without more. Here the appellant, by the adoption of the coined word “lite” and by associating it with the common name “beer” to produce a phonetic equivalent to another food, “light beer”, whose prescribed common name is “light beer” has sold as a light beer a product which conforms not with regulation B.02.134 (which describes a “Light Beer”) but which conforms with B.02.130 (which describes a “Beer”). The description “lite beer” must, in the ordinary usage of the language today, be synonymous with light beer, and the appellant’s product, having an alcoholic content of 4 per cent, does not conform with the standards prescribed.
As to the constitutional issue it requires an answer to the following question: what is the constitutional basis for the enactment by Parliament of the contested portions of the Act? The possible sources of this sovereign power include the federal authority under s. 91 of the B.N.A.Act in respect of criminal law, trade and commerce, and peace, order and good government.
Firstly there is no basis for the detailed regulation of the brewing industry in the production and sale of its product as a proper exercise of the federal authority in criminal law. Similarly the jurisdiction of Parliament in matters related to health, considered as an aspect of criminal law, has no application here.
Secondly the trade and commerce head of s. 91 of the B.N.A.Act cannot be applied to the regulation of a single trade, even though it be on a national basis. Here we are concerned with the proper regulatory authority in connection with the production process of a single industry and, to some extent, with the sale of its products, the latter being concerned largely with the use of labels or identification. Nowhere are the impugned statutory regulations or provisions concerned with the control or regulation of the extra-provincial distribution of these products or their movement through any channels of trade. On the contrary, their main purpose is the regulation of the brewing process itself by means of a “legal recipe”. Even if the Food and Drugs Act were to cover a substantial portion of Canadian economic activity, one industry or trade at a time, by a varying array of regulations or trade codes applicable to each individual sector, there would not, in the result, be at law a regulation of trade and commerce in the sweeping general sense contemplated in the Citizens Insurance case, (1881), 7 App. Cas. 96.
Thirdly the brewing and labelling of beer and light beer has not been said to have given rise either to a national emergency or a new problem not existing at the time of Confederation, nor to a matter of national concern transcending the local authorities’ power to meet and solve it by legislation. Therefore there is no basis for advancing the proposition that the impugned statutory provisions and regulations as they relate to malt liquors find their basis in law in the peace, order and good government clause of s. 91.
Per Ritchie J.: The manner in which the appellant seeks to market its “Labatt’s Special Lite” beer is not such as to make it likely that it will be mistaken for a food which complies with the standard prescribed by regulation B.02.134. The prominent display of the fact that the product contains 4 per cent alcohol by volume makes it unlikely for it to be mistaken for a “food” in which the alcohol by volume does not exceed 2.5 per cent. As to the constitutional question it should be answered in the manner indicated in the reasons of Estey J.
Per Pigeon and Mclntyre JJ., dissenting: As to the first point, the conclusion of the Federal Court of Appeal is correct. The question is not whether it is possible to ascertain from the label the exact nature of the packaged product. The question is whether a mistake is likely and it appears that this enquiry must be approached in the same way as the likelihood of confusion in trade mark infringement or passing-off. It is a matter of first impression. The words “Special Lite” are clearly the dominant feature here. The indication of the alcoholic content is down on the bottom line with the mention of the contents in millilitres and fluid ounces. The second question involves the difficult definition of the limits of federal power under the heading “The Regulation of Trade and Commerce”. The present regulations and statute do not prevent the appellant from marketing its product. The federal enactments under attack provide for no more than what might be called “labelling regulations”. These state what specifications must be met if some specific designations are used on food labels. This does not go beyond a proper concept of trade mark legislation as in the Dominion Trade and Industry Commission Act, 1935 case, [1937] A.C. 405 and there is no invasion of provincial jurisdiction.
Per Laskin C.J., dissenting: The present Food and Drugs Act clearly addressed itself, by the regulation-making power conferred under s. 25, to standards of strength and quality as well as labelling. If Parliament can set up standards for required returns for statistical purposes, it should be able to fix standards that are common to all manufacturers of foods, including beer, at least to equalize competitive advantages in the carrying on of business concerned with such products. The operations of brewers of beer extend throughout Canada, and the federal trade and commerce power should not be attenuated any further by denying Parliament authority to address itself to uniform prescriptions for the manufacture of food, drugs, cosmetics, therapeutic devices in the way, in the case of beer, of standards for its production and distribution according to various alcoholic strenghts under labels appropriate to the governing regulations.
[Citizens Insurance Company of Canada v. Parsons (1881), 7 App. Cas. 96 distinguished; Russell v. The Queen (1882), 7 App. Cas. 829; The Reference as to the Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1 aff’d [1951] A.C. 179; Dominion Stores v. The Queen, [1980] 1 S.C.R. 844, rev’g (1978), 18 O.R. (2d) 496, aff’g (1977), 17 O.R. (2d) 168; Toronto Electric Commissioners v. Snider, [1925] A.C. 396; Attorney General of Ontario v. Attorney General of Canada, [1896] A.C. 348; R. v. Eastern Terminal Elevator Co., [1925] S.C.R. 434; Reference Re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; Attorney General of British Columbia v. Attorney General of Canada, [1937] A.C. 377; R. v. Klassen (1959), 20 D.L.R. (2d) 406; Carnation Company Ltd. v. Quebec Agricultural Marketing Board, [1968] S.C.R. 238; Reference re Ontario Farm Products Marketing Act, [1957] S.C.R. 198; Caloil v. The Attorney General of Canada, [1971] S.C.R. 543; John Deere Plow Co. v. Wharton, [1915] A.C. 330; Reference re the Anti-Inflation Act, [1976] 2 S.C.R. 373; Re Insurance Act, 1910 (1913), 48 S.C.R. 260; MacDonald v. Vapor Canada Ltd., [1977] 2 S.C.R. 134; In Re The Board of Commerce Act (1920), 60 S.C.R. 456, [1922] 1 A.C. 191; Fort Frances Pulp and Paper Co. v. Manitoba Free Press, [1923] A.C. 695; Radio Reference, [1932] A.C. 304; Aeronautics Reference, [1932] A.C. 54; Attorney General of Ontario v. Canada Temperance Federation, [1946] A.C. 193; Attorney General of Ontario v. Attorney General of Canada, [1937] A.C. 405; Schweppes Ld. v. Gibbens (1905), 22 R.P.C. 601; J. Bollinger v. The Costa Brava Wine Co. Ltd., [1961] R.P.C. 116, referred to]
APPEAL from a judgment of the Federal Court of Appeal[1] setting aside the judgment of the Trial Division[2]. Appeal allowed, Laskin C.J. and Pigeon and Mclntyre JJ. dissenting.
D.M.M. Goldie, Q.C., and Donald J.M. Brown, for the appellant.
W.J.A. Hobson, Q.C., and J.M. Mabbutt, for the respondent.
Henri Brun and Jean-François Jobin, for the intervenant.
The following are the reasons delivered by
THE CHIEF JUSTICE (dissenting)—I agree with Mr. Justice Pigeon that the appeal should be dismissed with costs to the respondent. Like him I hold the view that Chief Justice Jackett of the Federal Court of Appeal was correct in his assessment of the application of s. 6 of the Food and Drugs Act to the appellant. The constitutional issue which Justice Pigeon resolved in favour of federal power, raises for me more extended considerations than those on which he was content to proceed and I wish to state my position briefly on what I regard as a highly important issue.
I do not think that the Dominion Trade and Industry Commission[3] case is conclusive here. That was a case involving non-compulsory regula- tion whereas the Food and Drugs Act and the relevant Regulations thereunder operate compulsorily. I do not think that anything is added by reference to Dominion Stores Limited v. The Queen[4] in which judgment was handed down by this Court on December 13, 1979. Insofar as it turned on dealing with local marketing it does not touch the present case. Even on the view of the dissenting Judges in the Dominion Stores case the matter is not advanced beyond what the Dominion Trade and Industry Commission case stands for. Part I of the Canada Agricultural Products Standards Act, R.S.C. 1970, c. A-8, is also an instance of non‑compulsory regulation by requiring anyone who uses the standards fixed by regulation thereunder to observe the prescriptions attached to the particular standard. I did not understand that the majority in the Dominion Stores case took any position on the validity of Part I of the federal Act; rather that majority appeared to find it inapplicable in the face of provincial legislation, a view which I, and those who joined with me in dissent, did not share because it was our opinion that, on the record there was no issue raised as to the application of provincial legislation.
The matter therefore comes down to whether this Court views the federal trade and commerce power as a sufficient support for the legislation and Regulations which are attacked in the present case. I would hold that it does, and, in so doing I would adopt the statement in the Parsons[5] case, at p. 113, which envisages competent federal legislation by way of “general regulation of trade affecting the whole Dominion”.
It may be that the present case can be disposed of on the ground taken by my brother Pigeon that the regulations that are attacked amount to no more than labelling provisions. We are not concerned with a marketing situation, and hence this case is distinguishable from cases like the Natural Products Marketing Act[6] case and Shannon v. Lower Mainland Dairy Products Board[7] or even the Ontario Marketing[8] case decided by this Court in 1957. There are, however, other matters that must be brought into account, matters which I think are relevant to the recognition of the federal trade and commerce power as a fully independent source of authority when viewed against the catalogue of provincial powers, especially the power in relation to “property and civil rights in the Province” under s. 92(13) of the British North America Act.
First, a brief reference to the history of the legislation and regulations whose validity is impugned in this case. Section 6 of the Food and Drugs Act, R.S.C. 1970, c. F-27, was enacted by 1952-53 (Can.), c. 38, s. 6. It reads as follows:
6. Where a standard has been prescribed for a food, no person shall label, package, sell or advertise any article in such a manner that it is likely to be mistaken for such food, unless the article complies with the prescribed standard.
The statute of 1952-53 (Can.), c. 38, was a complete revamping of the Food and Drugs Act, 1920 (Can.), c. 27, which applied only to food and drugs. The new Act was expanded to cover cosmetics and therapeutic devices, and sections to the same effect as s. 6 thereof (relating to foods) were enacted to require obedience to prescribed standards for drugs, cosmetics and devices in labelling, packaging, selling or advertising lest they otherwise be mistaken for such drugs, cosmetics or devices: see ss. 10, 17 and 20 of the present Act. Whereas the predecessor Act was limited to protection of the public against adulteration and misbranding, the new Act more clearly addressed itself, by the regulation-making power conferred under s. 25 upon the Governor-in-Council, to standards of strength and quality as well as labell- ing. Moreover, the new statute clarified any doubt that the violation of s. 6 would give rise to an offence.
There is no doubt that in its production and labelling of “lite” beer, the appellant did not conform to the standard strength prescribed for “light” beer under the regulations. (It is not contested that the spelling difference in the word used by the appellant and by the regulations does not affect the application of either s. 6 or of the regulations prescribing the limits of the alcoholic strength of that class of beer.) Its bottle label reflected its true strength which was beyond the limit fixed by the regulation. The question remains, therefore, whether, on the construction placed on s. 6 by Jackett C.J., which I accept, Parliament exceeded its legislative powers, both in the enactment of s. 6 and in authorizing prescription of standards of alcoholic strength.
In the Board of Commerce[9] case, at p. 201, the Privy Council indicated that it might be open to Parliament “to call… for statistical and other information which may be valuable for guidance in questions affecting Canada as a whole. Such information may be required before any power to regulate trade and commerce can be properly exercised…”. I do not press any perfect analogy to the prescription of common standards for an article of food which is produced throughout the country and which is also imported from abroad, but it does appear to me that if Parliament can set up standards for required returns for statistical purposes, it should be able to fix standards that are common to all manufacturers of foods, including beer, drugs, cosmetics and therapeutic devices, at least to equalize competitive advantages in the carrying on of businesses concerned with such products. I find some reinforcement in this view of the scope of the federal trade and commerce power in s. 121 of the British North America Act which precludes interprovincial tariffs, marking Canada as a whole as an economic union.
The operations of Labatt Breweries and of other brewers of beer extend throughout Canada, and I would not attenuate the federal trade and commerce power any further than has already been manifested in judicial decisions by denying Parliament authority to address itself to uniform prescriptions for the manufacture of food, drugs, cosmetics, therapeutic devices in the way, in the case of beer, of standards for its production and distribution according to various alcoholic strengths under labels appropriate to the governing regulations.
The judgment of Martland, Dickson, Beetz and Estey JJ. was delivered by
ESTEY J.—The appellant seeks a declaration that its product “Labatt’s Special Lite” as labelled, packaged and sold “is not likely to be mistaken for a ‘light beer’ within the standards set out…” in the regulations under the Food and Drugs Act, R.S.C. 1970, c. F-27 (“the Act”). The relevant facts are few. The product in question is one of the malt liquors described in regulations promulgated under the Act and has an alcohol content of 4 per cent. This product was introduced to the market in the provinces of British Columbia and Ontario under this label: Two issues arise by reason of the marketing of this product under the label set out above. Firstly, the appellant takes the position that this product when so advertised is not likely to be mistaken for a light beer within the applicable regulation. This regulation, being s. B.02.134 of the Food and Drug Regulations, C.R.C., c. 870, was enacted pursuant to s. 25(1) of the Act to which I will return shortly. Section 6 of the Act states as follows:
Where a standard has been prescribed for a food, no person shall label, package, sell or advertise any article in such a manner that it is likely to be mistaken for such food, unless the article complies with the prescribed standard.
The second position taken by the appellant is that s. 6 of the Act and regulation B.02.134 are ultra vires the Parliament of Canada, and to the extent that it authorizes such regulation, s. 25 is likewise ultra vires.
I turn to the first position, namely whether or not the appellant’s product is likely to be mistaken for the beverage “light beer”. The relevant regulations on the first issue are B.02.130 and B.02.134.
B.02.130 [S]. Beer
(a) shall be the product of the alcoholic fermentation of an infusion of barley malt and hops or hop extract in potable water and brewed in such a manner as to possess the aroma, taste and character commonly attributed to beer;
(b) shall contain not less than 2.6% and not more than 5.5% alcohol by volume; and
(c) may have added to it during the course of
(i) cereal grain,
(ii) carbohydrate matter,
(iii) salt,
(iv) yeast,
(v) hop oil,
(vi) hop extract, provided it is added to the wort before or during cooking,
(vii) irish moss seaweed of the species Chondrus crispus,
(viii) carbon dioxide,
(ix) caramel,
(x) dextrin,
(xi) food exzymes, (xii) stabilizing agents,
(xiii) gibberellic acid,
(xiv) pH adjusting and water correcting agents
(xv) class I Preservatives,
(xvi) class II Preservatives,
(xvii) sequestering agent,
(xviii) yeast foods,
(xix) any of the following filtering and clarifying agents: acacia gum, activated carbon, asbestos, bentonite, calcium silicate, magnesium silicate, aluminum silicate, cellulose, China clay, Nylon 66, diatomaceous earth, gelatin, silica gel, polyvinylpolypyrrolidone, wood shavings derived from oak, beech, hazelnut or cherry wood.
(xx) polyvinylpyrrolidone, and
(xxi) ammonium persulphate.
B.02.134 [S]. Light Beer
(a) shall be the product of the alcoholic fermentation of an infusion of barley malt and hops or hop extract in potable water and brewed in such a manner as to possess the aroma, taste and character commonly attributed to light beer;
(b) shall contain not less than 1.2% and not more than 2.5% alcohol by volume; and
(c) may have added to it the ingredients mentioned in paragraph (c) of section B.02.130.
It will be seen that the product has an alcoholic content as specified for “Beer” and is marketed under a label “Special Lite Beer” in which the letter grouping “lite” is phonetically identical with the category “light beer” in the regulation. It should be noted that the presence of the letter [S] in the headings of the regulations B.02.130 and B.02.134 is explained in regulation B.01.002.
B.01.002. Each section in this Part in which the symbol [S] appears between the section number and the name of the food described in that section prescribes the standard of composition, strength, potency, purity, quality or other property of that food and a section in which the symbol does not appear does not prescribe a standard for a food. The learned trial judge, in finding that the appellant has not violated the aforementioned regulations by the sale of this product in the manner described, stated:
There is no evidence before me describing, explaining or illustrating the aroma, taste and character commonly attributed to light beer. There is no evidence indicating the average, fair and reasonable Canadian would know what those particular attributes are. To my mind the hypothetically postulated Canadian would, as a prospective purchaser of the plaintiff’s product, consider it to be a beverage less heavy or not as heavy as other beer products, or likely of somewhat less alcoholic content than other beer products, or both.
In the case before me, the average fair and reasonable Canadian purchaser would, in my view, quickly become aware and appreciate (from the labelling, packaging and advertising) that the plaintiffs product contained 4% alcohol by volume and not some undisclosed, or difficult to perceive, content. It is said on behalf of the defendant that even in clear terms disclosing an alcohol content well above the maximum for light beer does not remove the plaintiff from the prohibition of s. 6 of the statute; that the other standard—”the aroma, taste, and character commonly attributed to light beer”—is equally applicable and important. But, as I have noted, there is no evidence to assist me in arriving at what that particular standard, or what the regulation’s phrase, light beer, conveys to the average, fair and reasonable Canadian.
On the evidence before me, it is my conclusion the plaintiffs Special Lite beverage (“food”) has not been labelled, packaged or advertised in such a manner that it is likely to be mistaken for the beverage “light beer” (“food”).
((1978), 84 D.L.R. (3d) 61, at pp. 66-67)
The Federal Court of Appeal came to the opposite result by determining that the regulations promulgated under the Act did (assuming their validity) prescribe a standard for light beer and accordingly, the Chief Justice, speaking on behalf of the Court, concluded:
In my view, therefore, it follows from the findings of the learned trial judge
(a) that the respondent was “labelling, packaging and advertising a beer using the descriptive adjective “light,” and (b) that that beer had an alcohol content of 4%. that the respondent was infringing section 6,…
((1979), 26 N.R. 617, at p. 624, [1980] 1 F.C. at pp. 248-49)
The regulations found in Part B (“Foods”), of the Food and Drug Regulations, supra, prescribe that the name of a food printed in bold face in the regulations, or a name prescribed by a regulation, is a “common name” to be used with reference to such food. The regulations then specify that such common name “shall be shown on the principal display panel”. In the case of light beer, those words become the prescribed common name of the product (“food” being defined in the statute as including “any article manufactured, sold or represented for use as food or drink for man,…”) by reason of regulation B.01.002. Similarly, the word “beer” is prescribed as the common name for the product produced pursuant to regulation B.02.130, supra.
It is clear therefore that standards have been prescribed for beer and light beer. It is also clear that those words have been arrogated by the statute for employment as common names with reference to those two food products. It is, with the greatest respect to those who hold a view to the contrary, thus abundantly clear that the sale of Labatt’s Special Lite Beer, unless labelled simply as “beer”, being the common name prescribed for use with reference to a product which conforms to the standards of beer as prescribed in the regulations, is a violation of s. 6 of the statute, without more. Here the appellant, by the adoption of the coined word “lite” and by associating it with the common name “beer” to produce a phonetic equivalent to another food, “light beer”, whose prescribed common name is “light beer” has sold as a light beer a product which conforms not with regulation B.02.134 but which conforms with B.02.130. The question to be answered is, of course, not the precise question answered by the judgment of the Federal Court of Appeal, namely that an infringement of s. 6 occurred, but rather whether the plaintiff is entitled to a declaration as sought in the statement of claim. In my view, the plaintiff is clearly not entitled either to the declaration with respect to regulation B.02.130 or to a declaration that the product is not “likely to be mistaken for a ‘light beer’ within the standard set out in paragraph B.02.134”.
I do not find it necessary to go further and deal with the question as to whether the prescribed standards in the two regulations would indeed create an understanding in actual or potential purchasers of the product that the product was either a light beer or a beer. It is also unnecessary to consider whether the use of the word “special” as an additional adjective qualifying the word “beer” in some way comes to the aid of the appellant. The description “lite beer” must, in the ordinary usage of the language today, be synonymous with light beer, and the appellant’s product, having an alcoholic content of 4 per cent, does not conform with the standards prescribed. The notice of 4 per cent on the label, in my respectful view, does not assist the appellant in establishing its entitlement to either declaration.
If it be necessary to find a violation of s. 6 by the actions of the appellant, I would adopt Chief Justice Jackett’s interpretation of s. 6 when he states in the judgment below, supra, at p. 623:
…applied to the facts of this case, section 6 means, in effect,
“Where a standard has been prescribed for (light beer), no person shall label, package, sell or advertise any article in such a manner that it is likely to be mistaken for (light beer), unless the article complies with the prescribed standard.”
Much argument was directed to the common understanding of the term “light beer” by the public. This discussion springs from the words employed in the two regulations quoted above in prescribing the specifications for both beer and light beer. It is said that the expression “light” with reference to beer is understood in Canada as being the same as in the United States where, according to the record, the term connotes that the beverage is low in carbohydrates of which alcohol is but one. It will be noted that each of the two classes of beer may include other carbohydrates in unspecified proportions. Hence it is said that 4 per cent alcohol might still indicate a light beer because the other carbohydrates may be reduced in proportion to the balance of the ingredients. In essence, the appellant asks the Court to find that it may produce and market a “malt liquor” with a name not prescribed as the common name for such a product when it contains 4 per cent alcohol, or alternatively, that the addition of adjectives in front of the word “beer” does not prevent the presence of the word “beer” operating as the assigned “common name” for such a product when it contains 4 per cent alcohol. The regulations are precise and nothing therein authorizes the addition of adjectives to the prescribed common name “beer” for the marketing to the public of this product. Similarly, in the case of light beer, the regulations do not authorize any perversion of the prescribed common name. The appellant, without saying so, argues that the right to add adjectives to the prescribed common name is inherent in the regulations. One of the added adjectives is “lite” which is a commonly used, phonetic spelling of “light,” and is indeed a commonly used homophone in our language. In my view, the use of “light” in association with beer is essentially a use of a prescribed common name, and here such use is made of the common name with reference to a product which does not conform to the standards prescribed by the regulations for that product. Whether or not this use in turn offends s. 6 depends upon the proper interpretation of that section. Before turning to that section, however, it must be observed that if the use of adjectives in association with prescribed names is permissible, then the appellant may, at least as regards the regulations under discussion, employ such words as “root beer,” “ginger beer,” or “near beer” with reference to this product. Clearly the word “beer,” when coupled with such qualifying words is not the prescribed name “beer” and would not be taken so by the public in considering the purchase of the product. The test established in s. 6, however, is “likely to be mistaken for such food” (in this case by definition in the statute, “light beer”). It is not necessary to go to the standards applied in other laws to apply this statutury test. The purchaser must be able to rely on the presence of the prescribed common name as indicating a product prepared in accordance with the specifications established under the Act. A purchaser must be able to do so without having to examine the container to ascertain the proportion of alcohol and other substances present in the product in order to determine which classification of malt liquors is being marketed under the label in question. The section certainly should not be construed so as to cause the purchaser to resolve an apparent conflict between the announced 4 per cent alcoholic content, and the phonetic equivalent of the prescribed common name “light beer” connoting as it does a lower alcoholic content. The presence of the additional adjective “special” does not assist the appellant in demonstrating that a mistake would not be “likely”.
I conclude that on the assumption that s. 6 and the applicable regulations cited above are valid, the appellant is not entitled to either declaration which it seeks in these proceedings.
I turn now to the constitutional issue. The appellant challenges the constitutional validity of s. 6 and s. 25(1)(c) of the Food and Drugs Act and the regulations promulgated thereunder with reference to the production and sale of beer. Before embarking on a discussion of the constitutional considerations, let us examine the form and thrust of the Act and its regulations.
Part I of the Act is entitled “Foods, Drugs, Cosmetics and Devices”. Under the heading “Food” we find four sections creating offences such as the sale of harmful substances, adulterated food and food unfit for human consumption and food manufactured under unsanitary conditions. There is a prohibition against the labelling, packaging, selling or advertising of food in any manner that is false and misleading or deceptive; and there is a general provision applicable to the whole of Part I making it an offence to advertise food, drugs, cosmetics or devices to the general public as a treatment, preventative or cure for any disease. Then we come to s. 6 in the “Food” portion of Part I of the Act which has already been set out above and which was relevant to the first issue as well as to the constitutional question. For convenience, I repeat s. 6 which reads as follows:
Where a standard has been prescribed for a food, no person shall label, package, sell or advertise any article in such a manner that it is likely to be mistaken for such food, unless the article complies with the prescribed standard.
There then follow provisions with reference to drugs, cosmetics and devices. In each of these instances the statute prescribes a number of offences with reference to false labelling, manufacture under unsatisfactory conditions, sale of unsafe articles, and so on. Likewise in each segment under Part I we find a section comparable to s. 6, as for example s. 10 in the case of drugs. Part III of the Act deals with “Controlled Drugs” and establishes offences in connection with the trafficking in controlled drugs, possession of such drugs, and detailed provisions with reference to the prosecution of charges under the statute, search and seizure, etc. Under this Part, regulations may be promulgated by the Governor-in-Council with reference to the manufacture, sale, importation and other dealings with controlled drugs. Part IV deals in the same way with restricted drugs. In Part II of the statute, provision is made for the “administration and enforcement” of the Act, including the powers of inspectors, the power of forfeiture, the right to make analysis of substances. Section 25(1)(c) appears in this part and establishes the authority in the Governor-in-Council to pass regulations under the statute
…for carrying the purposes and provisions of this Act into effect, and, in particular, but not so as to restrict the generality of the foregoing…
(c) prescribing standards of composition, strength, potency, purity, quality or other property of any article of food, drug, cosmetic or device; The regulatory authority under subs. (c) appears to extend to the four classes of goods or articles regulated under Part I which include “foods” with which we are here concerned.
Under the authority of s. 25(1)(c), there has been produced an elaborate set of regulations dealing with the preparation, manufacture and sale of the four articles or commodities dealt with in Part I of the Act. We are here concerned principally with Part B of the Food and Drug Regulations, supra. Various regulations in this Part prescribe standards for a food, its composition, strength, potency, purity, quality or other property, and where a standard is so prescribed, the regulations require that such food shall contain only the ingredients included in the standard for the food and in prescribed proportions. In Division 2 of Part B, provision is made for alcoholic beverages. The threshold qualification for an alcoholic beverage is set at “1.2% or more alcohol by volume”, and s. B.02.003 requires the display of the alcoholic content by volume on what is referred to as the “principal display panel”. The part of the regulations pertaining to alcoholic beverages with which this proceeding is concerned commences under the heading “Malt Liquors” with regulation B.02.130, already reproduced above, which prescribes the nature of “beer”, its alcoholic content, and permitted additives. The other malt liquors described by these regulations are ale, stout, porter, light beer, and malt liquor. The only difference between these various malt liquors appears to be the alcoholic content, and “the aroma, taste and character commonly attributed to” them. As we have seen, the alcoholic content for beer shall be not less than 2.6 per cent and not more than 5.5 per cent by volume, and in the case of light beer shall be not less than 1.2 per cent and not more than 2.5 per cent alcohol by volume. It may be observed that s. 6 was introduced into the Act in 1953 and s. 25(1)(c) was expanded at the same time to its present form. Prior to that time, the statute was concerned with the adulteration of food, misbranding, the offering of food or drugs for sale as treatment for specified diseases, and the correct labelling of articles of food which were mixtures, imitations or substitutes. There were, however, regulations pertaining to malt liquors prior to the 1953 statute, defining beer and light beer as two of six classifications of malt liquors.
The statute and its implementing regulations thus construct a detailed code governing the manufacture of malt liquors, the labels or display panels on the article so produced, and the name under which the end product shall be sold. Regulation B.01.042 illustrates the detailed reach of this regulatory pattern.
B.01.042. Where a standard for a food is prescribed in this Part
(a) the food shall contain only the ingredients included in the standard for the food;
(b) each ingredient shall be incorporated in the food in a quantity within any limits prescribed for that ingredient; and
(c) if the standard includes an ingredient to be used as a food additive for a specified purpose, that ingredient shall be a food additive set out in one of the Tables to section B. 16.100 for use as an additive to that food for that purpose.
On the other hand, there are some regulations which deal in precise terms with the adulteration of all foods. These regulations include lists of substances prohibited in the production of food. No challenge is made with respect to these regulations.
What then is the constitutional basis for the enactment of the contested portions of this statute by Parliament? The possible origins of this sovereign power include the federal authority under s. 91 of the British North America Act in respect of criminal law, trade and commerce, and peace, order and good government. I turn first to the criminal jurisdiction.
The traditional root of discussions in this field is found in Russell v. The Queen[10] where Sir Montague Smith said at p. 839:
Laws… designed for the promotion of public order, safety or morals and which subject those who contravene them to criminal procedure and punishment, belong to the subject of public wrongs rather than to that of civil rights… and have direct relation to the criminal law.
That there are limits to the extent of the criminal authority is obvious and these limits were pointed out by this Court in The Reference as to the Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference)[11], where Rand J. looked to the object of the statute to find whether or not it related to the traditional field of criminal law, namely public peace, order, security, health and morality. In that case, the Court found that the object of the statute was economic:
…to give trade protection to the dairy industry in the production and sale of butter; to benefit one group of persons as against competitors in business in which, in the absence of the legislation, the latter would be free to engage i