Johnson v. A.G. for Alberta

Johnson v. A.G. for Alberta
Collection
Supreme Court Judgments
Date
1954-03-31
Report
[1954] SCR 127
Judges
Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert
On appeal from
Alberta
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Johnson v. A.G. for Alberta, [1954] S.C.R. 127
Date: 1954-03-31
Dale Johnson Appellant;
and
The Attorney General of Alberta Respondent.
1953: June 1, 3; 1954: March 31.
Present: Kerwin, Taschereau, Rand, Kellock, Estey, Locke and Cartwright JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION
Constitutional Law—Property and Civil Rights—Criminal Law—Confiscatory Legislation—Validity of The Slot Machine Act, R.S.A. 1935, c. 333.
The Slot Machine Act, R.S.A. 1935, c. 333, provided that no slot machine should be capable of ownership nor be the subject of property rights within the Province and that no court of civil jurisdiction should recognize or give effect to any property rights therein. It authorized the seizure under warrant of any machine believed to be a slot machine and provided that following an inquiry before a justice of the peace the latter, unless satisfied that the machine was not a slot machine within the meaning of the Act, should order its confiscation to the Crown in the right of the Province.
The appellant, required to show cause why certain machines seized under the Act should not be confiscated, secured an order of Prohibition in the Supreme Court of Alberta which was set aside by a majority judgment of the Appellate Division. On appeal the sole question raised before this Court was whether the Act as it stood before an amendment which came into force on July 1, 1952, was intra vires the Alberta Legislature.
Held: (Kerwin, Taschereau and Estey JJ. dissenting) that The Slot Machine Act, R.S.A. 1942, c. 333 is ultra vires, since it is legislation in relation to criminal law, (Kellock, Locke and Cartwright JJ.) ; it is in relation to matters covered by the Criminal Code, (Rand J.)
Per: Rand J. Since the machines or devices struck at by the Statute are those dealt with in a similar manner by the Code, it is sufficient to say that the statute is inoperative.
Per: Kellock and Cartwright JJ. The Statute appears to be inseverable, to relate only to the prohibition and punishment of keeping contrivances for playing games of chance, that is to criminal law and to be ultra vires of the Legislature in toto. Rex. v. Karminos [1936] 1 W.W.R. 433 approved. Industrial Acceptance Corporation v. the Queen [1953] 2 S.C.R. 273 referred to. Re Race Tracks and Betting 49 O.L.R. 339 at 348 et seq. applied. Provincial Secretary of P.E.I. v. Egan [1941] S.C.R. 396, Bédard v. Dawson [1923] S.C.R. 681 and Regina v. Wason 17 O.R. 58 and 17 O.A.R.’ 221, distinguished.
Per: Locke J. In essence the Act was directed against gambling and nothing else, the exclusive jurisdiction to legislate in regard to which lies with Parliament under head 27 of s. 91 of the B.N.A. Act. Russell v. the Queen 7 App. Cas 829; A.G. for Ont. v. Hamilton Street Ry. Co. [1903] A.C. 425; Proprietary Articles Trade Assoc. v. A.G. for Canada [1931] A.C. 310; R. v. Karminos [1936] 1 W.W.R 433. R. v. Nat Bell [1922] A.C. 128, Bédard v. Dawson [1923] S.C.R. 681 and Provincial Secretary of P.E.I. v. Egan [1941] S.C.R. 396, distinguished.
Per: Kerwin and Taschereau JJ. (dissenting): The legislation impugned is neither criminal law nor incidental thereto. The Legislature was not attempting to create an offence and provide a penalty but was acting within its powers under s. 92 of the B.N.A. Act head 13, “Property and Civil Rights in the Province” and head 16, “Generally all Matters of a merely local or private nature in the Province”. The Act was not aimed at gambling and, therefore, does not cover the same ground as the provisions of the Criminal Code. Bédard v. Dawson [1923] S.C.R. 681 at 684, 685, 687; Lymburn v. Mayland [1932] A.C. 318 at 323; Provincial Secty. of P.E.I. v. Egan [1941] S.C.R. 396 at 416. The jurisdiction exerciseable by a justice of the peace under the Alberta Act does not broadly conform to the type exercised by superior, district or county courts under s. 96 of the B.N.A. Act. Re Adoption Act of Ontario [1938] S.C.R. 398, approved and adopted in, Labour Relations Board of Saskatchewan v. John East Iron Works Ld. [1949] A.C. 134.
Per: Estey J. (dissenting) The effect of the legislaion is to prevent rather than punish. It is, therefore, quite different from that which is classified as criminal law under s. 91 (27), or that of creating offences and penalties under s. 92 (15) of the B.N.A. Act. The language used by the legislature expressly prevents the use of the machines and devices and a construction to that effect should be adopted rather than one which attributes to the legislature an effort to indirectly legislate in relation to criminal law. A.G. for Manitoba v. A.G. for Canada [1929] A.C. 260; A.G. for Ontario v. Reciprocal Insurers [1924] A.C. 328 at 345.; A.G. of Manitoba v. Liquor License Holders Association [1902] A.C. 73 at 79; Lymburn v. Mayland [1932] A.C. 318.
APPEAL from the judgment of the Appellate Division of the Supreme Court of Alberta 1 (Frank Ford and Clinton J. Ford JJ. A. dissenting) reversing the judgment of the trial judge Egbert J. and setting aside the order prohibiting the magistrate from conducting any hearing, and from giving any judgment or order under The Slot Machine Act relative to the machines in question in these proceedings.
H. J. MacDonald for the appellant.
H. J. Wilson, Q.C. and J. J. Frawley, Q.C. for the Attorney General of Alberta, respondent.
Kerwin J. (dissenting):—On January 8, 1952, Egbert J. in the Supreme Court of Alberta granted an order that G. H. Ross, Q.C, Police Magistrate, sitting in the City of Calgary, and any other police magistrate or justice of the peace in the Province of Alberta be prohibited from taking further steps under The Alberta Slot Machine Act in proceedings wherein Dale Johnson (the present appellant) had been notified to appear and show cause why certain machines or devices seized by Acting Detective R. D. Pitman of the Calgary Police Department should not be confiscated. This order was set aside by a majority judgment of the Appellate Division on January 20, 1953 (1). By leave of the Appellate Division Dale Johnson appealed to this Court and the sole question is whether The Slot Machine Act, as it stood before an amendment which came into force on July 1, 1952, was intra vires the Provincial Legislature. The Attorney General of Canada was notified of the appeal but was not represented.
The Slot Machine Act which requires our attention is R.S.A. 1942, c. 333. S. 3 provides:—
3. No slot machine shall be capable of ownership, nor shall the same be the subject of property rights within the Province, and no court of civil jurisdiction shall recognize or give effect to any property rights in any slot machine. By s. 2(b) “Slot machine” means,—
(i) any machine which under the provisions of section 986 subsection (4), of The Criminal Code, is deemed to be a means or contrivance for playing a game of chance;
(ii) any slot machine and any other machine of a similar nature, the result of one of any number of operations of which is, as regards the operator, a matter of chance and uncertainty, or which as a consequence of any number of successive operations yields different results to the operator, notwithstanding that the result of some one or more or all of such operations shall be known to the operator in advance; and
(iii) any machine or device the result of one of any number of operations of which is, as regards the operator, a matter of chance or uncertainty or which as a consequence of any given number of successive operations yields different results to the operator, notwithstanding that the result of some one or more or all of such operations may be known to the operator in advance.
Section 4 provides in part that upon information on oath by any peace officer that there is reasonable grounds for believing that any slot machine is kept in any building or premises, it shall be lawful for any justice of the peace by warrant under his hand to authorize and empower the peace officer to enter and search the building or premises and every part thereof. By s. 5, every peace officer executing or assisting in the execution of any such warrant who finds upon the premises mentioned therein any machine or device which he believes to be a slot machine shall forthwith seize and remove it and bring it before a justice of the peace; and shall immediately thereafter serve upon the occupant of the premises or the person in whose possession the slot machine was at the time of the seizure a notice requiring the person so served to appear before any justice and which person shall then be there to show cause why the slot machine so seized should not be confiscated. S. 7 enacts:—
7. At the time and place mentioned in the notice any justice who shall then be there shall hear anything that may be alleged as a cause why the machine should not be confiscated and unless he is by reason of what is so alleged satisfied that the machine is not a slot machine within the meaning of this Act, he shall proceed to make an order declaring the machine to be confiscated to His Majesty to be disposed of as the Attorney General may direct and shall have power to make such order whether or not the person served with the notice is the owner, bailee or licensee of or otherwise entitled to the possession of the machine. The necessary steps under ss. 4 and 5 were taken in connection with a number of coin machines or devices but proceedings under s. 7 were prohibited by the order of Egbert J. It is pointed out in the reasons for judgment of W. A. MacDonald J.A., speaking on behalf of the majority of the Appellate Division that, apart from the fact that the , machines were placed under seizure, there is no evidence that they are of a type which under valid legislation were liable to confiscation. However, on the argument it was assumed that the machines fall within the definition of “slot machine” in the Act, and on this assumption the first contention was that the subject matter of the legislation falls under head 27 of s. 91 of the British North America Act, 1867:—”The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.”
In Bédard v. Dawson 2, this Court held that a statute authorizing a judge to order the closing of a disorderly house was intra vires the Quebec Legislature as it dealt with matters of property and civil rights by providing for the suppression of a nuisance and not with criminal law by aiming at the punishment of a crime. At page 684, Mr. Justice Duff, as he then was, states:—
The legislation impugned seems to be aimed at suppressing conditions calculated to favour the development of crime rather than at the punishment of crime. This is an aspect of the subject in respect of which the provinces seem to be free to legislate. I think the legislation is not invalid.
and at page 685, Mr. Justice Anglin (as he then was) states:—
I am of the opinion that this statute in nowise impinges on the domain of criminal law but is concerned exclusively with the control and enjoyment of property and safeguarding of the community from the consequences of an illegal and injurious use being made of it—a pure matter of civil right. In my opinion in enacting the statute now under consideration the legislature exercised the power which it undoubtedly possesses to provide for the suppression of a nuisance and the prevention of its recurrence by civil process.
Mr. Justice Mignault, at page 687, puts it thus:—
La législature veut empêcher qu’on ne se serve d’un immeuble pour des fins immorales ; elle ne punit pas l’offense elle-même par l’amende ou l’emprisonnement, mais elle ne fait que statuer sur la possession et l’usage d’un immeuble. Cela rentre pleinement dans le droit civil. The mere fact that s. 2(b)(i) of The Slot Machine Act refers to a section of the Criminal Code is not by itself of any importance. In Lymburn v. Mayland 3, Lord Atkin, speaking on behalf of the Judicial Committee, with reference to a bond required to be entered into under the Alberta Security Frauds Prevention Act, 1930, states at 323:—
Registered persons must enter into a personal bond, and may be required to enter into a surety bond each in the sum of $500, conditioned for payment if the registered person, amongst other events, is (in the former bond) “charged with,” (in the later bond) “convicted of,” a criminal offence, or found to have committed an offence against the Act or the regulations made thereunder. It was contended on behalf of the Attorney-General for the Dominion that to impose a condition making the bond fall due upon conviction for a criminal offence was to encroach upon the sole right of the Dominion to legislate in respect of the criminal law. It indirectly imposed an additional punishment for a criminal offence. Their Lordships do not consider this objection well founded. If the legislation be otherwise intra vires, the imposition of such an ordinary condition in a bond taken to secure good conduct does not appear to invade in any degree the field of criminal law.
The extracts from the judgment of Mr. Justice Duff in the Bédard case and from that of the Judicial Committee in Lymburn v. Mayland are mentioned by the present Chief Justice of this Court, speaking on behalf of himself and two associates, in Provincial Secretary of Prince Edward Island v. Egan 4. What was there in question was a provincial enactment providing that if a person were convicted of driving a motor vehicle while under the influence of intoxicating liquor his provincial licence to operate a motor vehicle should forthwith and automatically be suspended for certain periods, or cancelled, depending upon whether it was a first, second or third conviction and providing that the Provincial Secretary should not issue a licence to any person during the period for which his licence had been so cancelled or suspended. A section of the Criminal Code provided that where a person was convicted of driving a motor vehicle while intoxicated, the Court might in addition to any other punishment provided, prohibit him from driving a motor vehicle anywhere in Canada during any period not exceeding three years. The present Chief Justice at page 414 pointed out that the field of the two enactments was not co-extensive, and, at page 415, that the legislation had to do with the civil regulation of the use of highways and personal property, the protection of the persons and property of the citizens, the prevention of nuisances and the suppression of conditions calculated to make circulation and traffic dangerous. Sir Lyman Duff stated at page 402 that the legislation was concerned with the subject of licensing drivers and motor vehicles of which it was essential that the province should primarily have control and at page 403 that he could find no adequate ground for the conclusion that the legislation in its true character attempted to prescribe penalties for the offences mentioned rather than enactments in regulation of licenses. Similar views were expressed by Mr. Justice Hudson and Mr. Justice Taschereau.
In the present case the Legislature has declared that there is no property in a slot machine. All that the tribunal before which the matter comes has to do is to hear representations that any particular machine is not a slot machine and, unless it is satisfied that such is the case, make an order confiscating it to His Majesty in right of the Province. The legislation impugned is neither criminal law nor incidental thereto. The Legislature was not attempting to create an offence and provide a penalty but was acting within its powers under s. 92 of the British North America Act, head 13, “Property and Civil Rights in the Province” and head 16 “Generally all Matters of a merely local or private Nature in the Province.” It is not necessary under the Alberta Act that the slot machine be found in a gaming house. I do not read that Act as aimed at gambling and, therefore, in my opinion it does not cover the same ground as the provisions of the Criminal Code.
It was next argued that in any event the jurisdiction conferred upon a justice of the peace by the Act infringes the provisions of s. 96 of the British North America Act, 1867: —”The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.” The landmark upon this topic is the judgment of this Court delivered by Sir Lyman Duff in Re Adoption Act of Ontario 5. In Labour Relations Board of Saskatchewan v. John East Iron Works Ld. 6, Lord Simonds, at 152, describes it as “so exhaustive and penetrating both in historical retrospect and in analysis of this topic, that their Lordships would respectfully adopt it as their own, so far as it is relevant to the present appeal.” Later it was pointed out that it had been sufficient for the purpose of that case for Sir Lyman Duff to pose the question: “Does the jurisdiction conferred upon magistrates under these statutes broadly conform to a type of jurisdiction generally exercisable by courts of summary jurisdiction rather than the jurisdiction exercised by courts within the purview of s. 96?” Their Lordships preferred to put the question in this way which they thought might be more helpful in the decision of similar issues:— “Does the jurisdiction conferred by the Act on the appellant board broadly conform to the type of jurisdiction exercised by the superior, district or county courts?”
When one’s attention is fixed upon what the justice of the peace may do under the Alberta Act, it matters not in my opinion in which form the question is put. If he is not satisfied that the machine is not a slot machine within the Act, his function is merely to make an order of confiscation. This jurisdiction broadly conforms to a type generally exercisable by Courts of summary jurisdiction. Provisions authorizing confiscation by a justice of the peace may be found in the Criminal Code and, while these examples indicate that Parliament was legislating with reference to criminal law, they also show that the jurisdiction exercisable by a justice of the peace under the Alberta Act does not broadly conform to the type exercised by the superior, district or county courts. One example is s. 543 of the Criminal Code providing for the confiscation and destruction of cocks found in a cock pit. Another is s-s. 3 of s. 641 of the Code dealing with the forfeiture of moneys or securities seized under a warrant in gaming houses, and yet another is s-s. 1 of s. 632 under which a justice of the peace may cause to be defaced or destroyed any forged banknote, bank note-paper, instrument or other things.
Counsel referred to several decisions of provincial courts in which the validity of various Provincial Slot Machine Acts was in issue. All of these statutes contained sections similar to some of those in the legislation before us but nothing is said about such decisions as in the particular branches of constitutional law with which we are concerned, the line between validity and invalidity is very narrow. The appeal should be dismissed with costs.
Taschereau J. (dissenting):—For the reasons given by my brother Kerwin, I am of the opinion that The Slot Machine Act (R.S.A. 1942, c. 333) is intra vires the powers of the Legislature of Alberta, and I would dismiss the appeal with costs.
Rand J.:—In this appeal the validity of The Slot Machine Act, 1935, as amended, of Alberta, is challenged on three grounds: that the true nature of the legislation, directed against a public evil, is criminal law and within the exclusive jurisdiction of Parliament; that the provision for a declaration of confiscation by a justice of the peace is in conflict with s. 96 of the Confederation Act, and as that adjudication is essential to the administration of the Act the whole enactment must fall; and that in any event the field covered by the statute is already occupied by the Criminal Code. In view of the conclusion to which I have come it is unnecessary to deal with more than the last ground.
The definition of “slot machine” in s. 2 of the Act is as follows:—[see ante p. 130].
S. 3 declares that the machines shall not be capable of ownership nor be the subject of property rights within the province, and that no court of civil jurisdiction shall recognize or give effect to any rights in them. Ss. 4, 5, 6 and 7 provide that, upon information on oath by a peace officer that there are reasonable grounds for believing that any slot machine “is kept in any building or premises”, a warrant may issue to search and seize and to bring the machine before a justice of the peace, and for notice to be served upon the person in possession to show cause why it should not be declared to be confiscated; and unless the justice is satisfied that the machine is not one within the meaning of the Act, he is to make an order of confiscation to Her Majesty.
In 1938, s. 986(4) of the Criminal Code was amended to its present form which, embracing slot machines for any purpose except vending services, declares that “if any house, room or place is found fitted or provided with any such machine, there shall be an irrebutable presumption that such house, room or place is a common gaming house.” That presumption arises in any prosecution under s. 229 for keeping a disorderly house, which, by s. 226, includes a common gaming house. The prosecution, preceded by an information made under oath, charges the person with being the keeper of a house to which, by the definition in s. 226, persons resort “for the purpose of playing at any game of chance.” Once, then, that basis is established and the presence of such a machine is shown, the conviction for keeping a common gaming house necessarily follows.
We have no facts before us showing the nature of the machines involved in the proceeding taken and we are left, therefore, with the language of the statute and of the Code from which to deduce the limits of inclusion to which the definition can be taken to extend.
It has been decided that slot machines for amusement or entertainment purposes come within the exception to s. 986(4) as vending services: Laphkas v. The King 7; they are therefore excluded from para. (i) of the definition. In Regent Vending Machines v. Alberta Vending Machines Ltd. 8 the judgment in which is being delivered with that in this appeal, for the reasons given I was of opinion that the machines in that case which were games or means of entertainment into which skill entered were not within the language of paras (ii) or (iii): and the question which is raised at this stage is whether there can be any machine coming within the scope of paras (ii) and (iii) to which the provisions of the Code do not extend.
That the object of the statute is to eliminate what is considered to be a local evil is quite apparent but what evil? I can quite imagine an object of concern to be the waste of time and money, particularly of young persons, in the operation of such machines as were dealt with in Regent Vending Machines Ltd. (supra). Their operation may even be taken to tend to breed a gambling propensity, although that tendency, if it exist at all, must be admitted to be extremely tenuous. But that the legislative purpose is aimed primarily at the evil of gambling is patent from almost the opening words of the statute. There is the incorporation of the instruments falling within s. 986(4) of the Code in para. (i) ; paras. (ii) and (iii) are couched in language which in its technical description of the functional result of the machines is identical with what is contained in that section. The only differences between paras. (ii) and (iii) are in the opening words of application in (ii) “any slot machine and any other machine of a similar nature” against in (iii) “any machine or device”; in line 6 of (ii), “any number” against, in line 5 of (iii), “any given number”; and in line 9 of (ii) “shall be known” against “may be known” in the last line of (iii). If significant differences in the interpretation of the two paragraphs exist, they have not been suggested to us. It is therefore, in my opinion, reasonably clear that if the scope of the statute in this respect does go beyond that of s. 986(4), it must be in relation to machines or devices that are of or are used for a gambling nature or purpose.
That being so, what is the scope of the provisions of the Code dealing with gaming and gambling instruments? It should be remarked at the outset that, generally, gambling devices are aimed at as the apparatus of gaming houses. In certain forms they may be found in homes and used if at all in purely private activities beyond the reach of the criminal law. I do not interpret the words of s. 4 of the statute “that any slot machine is kept in any building or premises” to extend to an instrument of any kind to be found in a home for family and social entertainment. To be “kept” in the text carries the implication both of keeping in use and for other than purely social purposes. What is intended to be struck at is a public or community evil, not what would involve in its enforcement the invasion of domestic privacy.
In addition to s. 986(4) the provisions of ss. 235 and 641 bear directly on the question. The former makes it an indictable offence to keep in any premises, “any gambling, wagering, or betting machine or device”. No definition is given of these machines or devices, and we are left in each case to a determination of fact. Then s. 641 authorizes the seizure within any house, room or place which a peace officer believes to be a place kept as a gaming house, of all instruments of gaming found therein, to be brought before a justice who, by s-s. (3) is empowered in a proper case to make an order of confiscation. Taken with s. 642 it furnishes the means and the occasion for initiating a prosecution under s. 229.
From this it is seen that the Code has dealt comprehensively with the subject matter of the provincial statute. An additional process of forfeiture by the province would both duplicate the sanctions of the Code and introduce an interference with the administration of its provisions. Criminality is primarily personal and sanctions are intended not only to serve as deterrents but to mark a personal delinquency. The enforcement of criminal law is vital to the peace and order of the community. The obvious conflict of administrative action in prosecutions under the Code and proceedings under the statute, considering the more direct and less complicated action of the latter, could lend itself to a virtual nullification of enforcement under the Code and in effect displace the Code so far by the statute. But the criminal law has been enacted to be carried into effect against violations, and any local legislation of a supplementary nature that would tend to weaken or confuse that enforcement would be an interference with the exclusive power of Parliament.
The penalty of the Act, in duplicating forfeiture, is supplementing punishment. That is not legislating either “in relation to” property or to a local object. Every valid enactment made under the authority conferred by means of that phrase is for an object or purpose which is within the power of the enacting jurisdiction, and legislation “in relation to” property is as much subject to that canon as any other head of ss. 91 or 92. Legislation from caprice or perverseness or arbitrary will affecting, say, property, cannot be brought within those words; when of such a nature it passes into another category. That law is reason is in such a sense as applicable to statutes as to the unwritten law. I am unable to agree, therefore, that under its authority to legislate in relation to property the province can in reality supplement punishment; that it may deal with conditions that conduce to the development of crime where what is proposed is in fact legislation of that character and infringes no legislative field beyond its jurisdiction though undoubted is not in question here. The result is that since the machines or devices struck at by the statute are the same as those dealt with in similar manner by the Code, it is sufficient to say that the statute is inoperative.
The appeal must therefore be allowed and judgment go directing the issue of a writ of prohibition.
Kellock J.:—This appeal involves the constitutional validity of The Slot Machine Act, R.S.A., 1942, c. 333. Although the circumstances giving rise to these proceedings did not arise under s. 3, the entire statute was questioned on the argument.
As to s. 3, I think it is sufficient to say that in my opinion even if that section could be regarded as otherwise valid, as to which I offer no opinion, it is not severable. Apart from this, I concur in the reasoning and conclusion of my brother Cartwright. I would allow the appeal.
Estey J. (dissenting):—The first question in this appeal is relative to the competency of the legislature of Alberta to enact The Slot Machine Act (R.S.A. 1942, c. 333).
The appellant contends The Slot Machine Act is legislation in relation to criminal law and, therefore, by virtue of s. 91(27) of the B.N.A. Act, can be competently enacted only by the Parliament of Canada.
A slot machine is defined in s. 2(b) to mean: [see ante p. 130].
In sub-para. (iii) substantially the same language is used as in sub-para. (ii), but made applicable to “any machine or device.” The legislature, by the addition of these sub-paras. (ii) and (iii), has included machines other than those which would be subject to the provisions of the Criminal Code and, in particular, would include a machine which otherwise comes within this provision if it be played for amusement only.
Then s. 3 provides:
3. No slot machine shall be capable of ownership, nor shall the same be the subject of property rights within the Province, and no court of civil jurisdiction shall recognize or give effect to any property rights in any slot machine.
In subsequent sections provision is made for the seizure and confiscation of these machines or devices. S. 3, under which slot machines, as defined, can neither be owned nor the subject of property rights within the province, sets forth the basic principle underlying the statute and, as such, is legislation in relation to property and civil rights.
It is, however, the contention of the appellant that when read as a whole the statute makes the possession of these machines and devices an offence and confiscation thereof a penalty; that in reality it is an attempt on the part of the province to legislate “for the promotion of public order, safety, or morals” and is, therefore, legislation in relation to criminal law.
Leaving aside, for the moment, the provisions for seizure and forfeiture, it may be observed that the phrase just quoted appears in the judgment of the Judicial Committee in Russell v. The Queen 9, which, at p. 839, reads:
Laws of this nature 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. They are of a nature which fall within the general authority of Parliament to make laws for the order and good government of Canada, and have direct relation to criminal law.
The submission of the appellant would appear not to give sufficient weight to the words that immediately follow the phrase “public order, safety, or morals,” from which it is evident that, in order to give such legislation the quality and character of criminal law, there must be an offence defined and a penalty provided therefor.
Lord Atkin gives expression to the same view when, after stating that the phrase “criminal law” in s. 91(27) of the B.N.A. Act is used in its widest sense and is not confined to what was criminal law in 1867, he continues:
The power must extend to legislation to make new crimes. Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences? Morality and criminality are far from coextensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality—unless the moral code necessarily disapproves all acts prohibited by the State, in which case the argument moves in a circle. Combines Investigation Act case 10. The absence of any express provision in The Slot Machine Act making possession of these machines or devices an offence and providing a penalty therefor distinguishes it from the legislation of Saskatchewan which expressly included both and as a consequence was declared to be ultra vires the province in Rex v. Karminos 11. Even in that case Mr. Justice Turgeon would have held the provision, similar to the above-quoted s. 3, competent provincial legislation and severable from that which was criminal in character. In Rex v. Stanley 12, the Alberta Court of Appeal held that legislation in that province, prior to that here under consideration, was intra vires. It contained a direct prohibition against keeping and operating these machines, but did not provide a penalty therefor. The Appellate Division of the Supreme Court of New Brunswick in Rex. v. Lane 13, held similar slot machine legislation within the legislative competence of the province.
The appellant cited Ouimet v. Bazin 14. That case and A.-G. for Ontario v. Hamilton Street Ry. Co. 15, upon which it was mainly decided, further emphasize the distinction between legislation in relation to criminal law and the slot machine legislation here in question. In the Hamilton Street Railway case the Privy Council held an act to prevent the profanation of the Lord’s Day legislation in relation to criminal law and, therefore, beyond the competence of the province to enact. The profanation of the Sabbath was a crime at common law (Encyc. of the Laws of Eng., Vol. 13, p. 707) and a statutory offence in Upper Canada prior to Confederation (Cons. S. of U.C. 1859, 22 Vict., c. 104). See also In re Legislation Respecting Abstention from Labour on Sunday 16. This feature was emphasized by their Lordships of the Privy Council at p. 589, where it is stated “that an infraction of the Act which in its original form … was in operation at the time of Confederation is an offence against the criminal law.” In the Ouimet case the Quebec statute was similar to that in Ontario. It was entitled “An Act Respecting the Observance of Sunday” and it was held to be ultra vires. The slot machine legislation would appear to be more appropriately classified under that type discussed in Bédard v. Dawson 17. In that case this Court held intra vires a Quebec statute providing for the closing of any building which continued to be used as a disorderly house after a conviction had been registered against the owner or occupant thereof. Duff J. (later C.J.) at p. 684, stated:
The legislation impugned seems to be aimed at suppressing conditions calculated to favour the development of crime rather than at the punishment of crime. This is an aspect of the subject in respect of which the provinces seem to be free to legislate. I think the legislation is not invalid.
and Anglin J. (later C.J.) at p. 685:
… I am of the opinion that this statute in no wise impinges on the domain of criminal law but is concerned exclusively with the control and enjoyment of property and the safeguarding of the community from the consequences of an illegal and injurious use being made of it—a pure matter of civil right.
These quotations distinguish between legislation which, in effect, prevents the use of property which the legislature has decided is undesirable in the interests of the community from that under which one who commits an offence may be prosecuted and punished therefor.
The legislature in The Slot Machine Act, in effect, prevents the use of these machines or devices. That it may prevent the commission of criminal offences may be conceded. That was the precise effect of the legislation in the Bédard case. The Slot Machine Act goes further and prevents the use of machines and devices which, in the judgment of the legislature, tend to foster criminal or other tendencies detrimental to the community.
In determining the nature and character of legislation one examines the effect thereof and not its purpose. Viscount Sumner in Attorney-General for Manitoba v. Attorney-General for Canada (Provincial Sale of Shares Act) 18. It is here neither the purpose nor the. effect of the legislation that offences and penalties are provided with respect to the possession or use of slot machines and devices. The legislature is not concerned with how and in what manner these machines and devices have been used, but rather that they shall not be used at all within the province. With that end in view it has defined those it deems undesirable and whether they be slot machines within the language of the Criminal Code is not in issue. The only issue under this legislation is whether these machines are within the definition in s. 2. If so, they cannot be owned or made the subject of property rights, but will be confiscated to Her Majesty. The effect of the legislation is to prevent rather than punish. It is, therefore, quite different from that which is classified as criminal law under s. 91(27), or that of creating offences and penalties under s. 92(15). The language used by the legislature expressly prevents the use of these machines and devices and a construction to that effect should be adopted, rather than one which attributes to the legislature an effort to indirectly legislate in relation to criminal law. The position is comparable to that described by Sir Lyman Duff, writing on behalf of the Privy Council, where he stated:
… the terms of the statute as a whole are, in their Lordships’ judgment, capable of receiving a meaning according to which its provisions, whether enabling or prohibitive, apply only to persons and acts within the territorial jurisdiction of the Province. In their opinion it ought to be interpreted in consonance with the presumption which imputes to the Legislature an intention of limiting the direct operation of its enactments to such persons and acts. Attorney-General for Ontario v. Reciprocal Insurers. 19.
It is emphasized, in support of the invalidity of the legislation here in question, that the language of the definition in s. 2(b)(ii) and (iii) is almost identical with a portion of s. 986(4) of the Criminal Code. Before any conclusion should be drawn from this circumstance it should be observed that s. 986(4), as enacted in the Criminal Code, is designed to serve two purposes: first, that the automatic or slot machine there defined is “deemed to be a means or contrivance for playing a game of chance” within the meaning of ss. 226 and 229 of the Criminal Code; second, that any house, room or place fitted or provided with such automatic or slot machines raises an irrebuttable presumption that such is a common gaming house within the meaning of ss. 226 and 229 of the Criminal Code. The Slot Machine Act contains no such provisions. Moreover, s. 986(4) is restricted to automatic or slot machines, while s. 2(b)(ii) applies to “any slot machine and any other machine of a similar nature” and (iii) applies to “any machine or device.” This