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Supreme Court of Canada

Constitutional law—Criminal law—Statute—Proclamation—Act or any provisions to come into force on day or days fixed by proclamation—Governor in Council proclaiming Act save certain subsections—Validity of proclamation—Criminal Law Amendment Act, 1968-69 (Can.), c. 38, ss. 16, 120—Criminal Code, 1953-54 (Can.), c. 51, ss. 222, 223, 224.

Section 120 of the Criminal Law Amendment Act, 1968-69 (Can.), c. 38, providing for a number of amendments to the Criminal Code and other statutes, reads: This Act or any of the provisions of this Act shall come into force on a day or days to be fixed by proclamation. Section 16 of the Act which contemplates the repeal of ss. 222, 223 and 224 of the Criminal Code, and their replacement by new ss. 222, 223, 224 and 224A, was proclaimed with the exception of three subsections. The scheme of the new legislation was in part to impose a new requirement whereby a person, believed to be impaired, in control of a motor vehicle, could be required to provide a sample of his breath for analysis; to create a new offence of refusing to give such sample of breath; and to create a rebuttable evidentiary presumption that the chemical analysis of an accused’s breath is proof of the proportion of alcohol in the blood, if, among other things, at the time the sample was taken, the person taking the sample offered to provide to the accused a specimen of the breath of the accused in an approved container. The three subsections not proclaimed laid down the requirements that the accused must be offered a sample of his breath in an approved container.

Pursuant to s. 55 of the Supreme Court Act, R.S.C. 1952, c. 259, the Governor general in Council referred to this Court for hearing and consideration the following questions: (1) Was s. 16 of the Criminal Law Amendment Act, 1968-69, or any portion thereof validly brought into force on the

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first day of December, 1969? and (2) If a portion only of s. 16 was brought into force, what portion?

To the first question, the answer of the Chief Justice and of Abbott, Judson, Hall and Laskin JJ. is yes; the answer of Martland, Ritchie, Spence and Pigeon JJ. is that the section was not proclaimed in whole and that the proclamation of a part only was invalid.

To the second question, the answer of the Chief Justice and of Abbott, Judson, Hall and Laskin JJ. is the whole of the section with the exception of the three subsections in question; the answer of Martland, Ritchie, Spence and Pigeon JJ. is that no portion of the section was brought into effect.

Per Fauteux C.J., and Abbott and Judson JJ.: The effect of s. 120 of the Act is to make the time and manner of the coming into force of the Criminal Law Amendment Act or any of its provisions conditional upon an exercise of discretion by the Governor in Council. By s. 120, Parliament gave the Privy Council the power to proclaim “provisions” at its discretion. “Provisions” explicitly encompassed subsections or paragraphs thereof. Section 14(2) of the Interpretation Act, 1967-68, c. 7, carefully distinguishes between the words “section” and “provision”. Once it has been ascertained that Parliament has given the executive a certain power, as it has done in this instance by virtue of s. 120, then it is beyond the power of the Courts to review the manner in which the executive exercises it.

Per Fauteux C.J. and Hall J.: Notwithstanding that the proclamation of parts only of s. 16 of the Criminal Law Amendment Act may indicate on the part of the executive a failure to live up to the spirit of what was intended by Parliament, the remedy does not lie with the Courts. When Parliament, by enacting s. 120, gave the executive a free hand to proclaim “any” of the provisions of the Act, the responsibility for the result rests with Parliament which has the power to remedy the situation if the executive has actually acted contrary to its intention.

Per Martland, Ritchie, Spence and Pigeon JJ.: Section 120 of the Act confers upon the Governor in Council a discretion only as to time of operation, but not as to content. It does not delegate any power to legislate. The word “provision” is not, in itself, clear and precise, but is “a word of diverse meanings”. The meaning intended in s. 120 is: that which Parliament has provided in the Act. Thus

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interpreted the section would mean that, by proclamation, the whole Act could be brought into effect, or that which Parliament had provided in the various portions of the Act. This interpretation means that in proclaiming portions only of the Act, the Governor in Council must proclaim the whole of any portion dealing with a specific subject-matter. On this basis, a single section, or a subsection, may be a “provision”, or it may not. The proclamation of parts only of a portion of the Act dealing with a specific subject-matter can result in the bringing into force of something which was not provided by Parliament. If it does have that result, it is not authorized by s. 120, because, in that event, what is proclaimed is not a provision of the Act, but a part of a provision that would not have been enacted by Parliament, if it stood alone. Section 16 of the Act is a self-contained provision dealing with a particular matter, i.e., the subject of driving while under the influence of alcohol or a drug. Section 224A, enacted by s. 16, contains certain safeguards for the protection of an accused person. What the proclamation declared to be in effect was not, by reason of the omission, that which Parliament had enacted in s. 16. By proclaiming only a part of s. 16, the Governor in Council was, in essence, amending that which Parliament itself had provided, and, in so doing, exceeded the powers given by s. 120.

Per Ritchie, Spence and Pigeon JJ.: The omission to proclaim the subsections made a substantive change in the law which Parliament had enacted. The effect of the change is to deprive the accused of the right to be provided with a sample of his breath for his own use and thus to deprive him of the right to make a full defence. In construing s. 120, it is pertinent to have reference to the whole of the statute as it was enacted by Parliament in order to determine whether Parliament intended to enpower the executive to so alter a provision of the Act that it had passed as to deprive accused persons of a right which Parliament itself had expressly preserved. The doubts and differences which so obviously exist as to the construction to be placed on s. 120 cannot be resolved by imputing to Parliament the intention to authorize the executive to abrogate the fundamental right of an accused person to make a full defence and this is particularly the case when Parliament itself has enacted a provision which expressly preserves that right.

Per Laskin J.: Once it is conceded, as it must be, under both the English and French versions of s. 120, that piecemeal implemention or effectuation is authorized, the choices to be made depend on the

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pleasure of the Governor in Council. The Court should be very wary of judicializing the exercise of the very broad executive power conferred by Parliament in this case when it relates to the bringing into force of legislation. In the context of the Criminal Law Amendment Act and in the light of the Interpretation Act, the word “provisions” may mean more or may mean less than a section or a subsection, or a sub-subsection, or even a paragraph of a sub‑subsection. Unless this Court can say with certainty what it means and that it cannot have the meaning reflected in the proclamation, its application is better left to the executive to which Parliament has entrusted it. The use of the proclamation power in this case to limit the operative force of s. 16 is consistent with the power to proclaim some provisions and not others. It is beside the point that the result of the proclamation in this case may not be congenial to this Court. We miss a step in the legislative process if we purport to read the consequences of the proclamation back into the severable power to promulgate the legislation. This conclusion is not affected by the Canadian Bill of Rights.

REFERENCE by His Excellency the Governor general in Council (P.C. 643, dated April 14, 1970) to the Supreme Court of Canada under and by virtue of the authority conferred by s. 55 of the Supreme Court Act, R.S.C. 1952, c. 259.

D.S. Maxwell, Q.C., and D.H. Christie, Q.C., for the Attorney General of Canada.

R.S. Meldrum, for the Attorney General of Saskatchewan.

A. O’Connor, Q.C., for the Attorney General of Manitoba.

B.A. Crane, for the Attorney General of Alberta.

Richard P. Anderson, Q.C., for all other interests.

The CHIEF JUSTICE and ABBOTT J. agreed with the opinion of JUDSON J.

OPINION OF JUDSON J.—This Reference raises the question whether s. 120 of the Criminal Law Amendment Act, 1968-69 (Can,), c. 38, allows

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the Privy Council to proclaim all of that Act with the exception of certain subsections and sub-subsections.

Section 120 of the Criminal Law Amendment Act 1968-69 reads:

120. This Act or any of the provisions of this Act shall come into force on a day or days to be fixed by proclamation.

The French version is:

120. La présente loi ou l’une ou plusieurs de ses dispositions entreront en vigueur à une date ou à des dates qui seront fixées par proclamation.

On November 19, 1969, s. 16 of the Act was proclaimed, with the exception of three subsections: ss. 16(224A)(1)(c)(i), 16(224A)(1)(f)(iii)(A), and 16(224A)(6)(b). The scheme of the s. 16 legislation was in part:

(1) to impose a new requirement whereby a person, believed to be impaired, in control of a motor vehicle, could be required to provide a sample of his breath for analysis;

(2) to create a new offence of refusing to give such sample of breath; and

(3) to create a rebuttable evidentiary presumption that the chemical analysis of an accused’s breath is proof of the proportion of alcohol in the blood, if, among other things, at the time the sample was taken, the person taking the sample offered to provide to the accused a specimen of the breath of the accused in an approved container.

Those sections not proclaimed by the Privy Council on November 19, 1969, were the sections laying down the requirements that the accused must be offered a sample of his breath in an approved container.

In The Queen v. Story[1], Munroe J. of the Supreme Court of British Columbia dismissed a charge of driving while impaired, on the grounds that s. 16 of the Criminal Law Amendment Act was not validly proclaimed, and is not now and never has been in force. Munroe J. said that the

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Privy Council has no power to amend legislation, and that s. 120 did not delegate such power to the Privy Council. What s. 120 did do, said Munroe J., was to enable the Privy Council to proclaim at different times certain provisions insofar as such provisions were severable and unrelated.

By Order-in-Council P.C. 1970-643, dated April 14, 1970, made pursuant to s. 55 of the Supreme Court Act, the Governor in Council referred the following questions to this Court:

(1) Was s. 16 of the Criminal Law Amendment Act, 1968-69, or any portion thereof validly brought into force on the first day of December, 1969?

(2) If a portion only of section 16 was brought into force, what portion?

The Attorney-General of Canada, supported by the Attorneys-General of Manitoba, Saskatchewan and Alberta, argues that the effect of s. 120 is to make the time and manner of the coming into force of the Criminal Law Amendment Act or any of its provisions conditional upon an exercise of discretion by the Governor in Council. The word “provisions” in s. 120, argues the Attorney-General, encompasses sections, subsections, paragraphs, subparagraphs or components thereof; a wide discretion was therefore given the Privy Council, and the Privy Council used that discretion legitimately in not proclaiming those parts of s. 16 dealing with approved containers. The wisdom of the policy of vesting the wide discretion contained in s. 120 in the executive, says the Attorney-General, is entirely a matter for Parliament and is not subject to judicial review.

I agree with the Attorney-General. The issue in this Reference, quite simply, is what power, in the case of the Criminal Law Amendment Act, has Parliament given to the Privy Council? The issue is not usurpation of the Legislature’s power by the executive. No one disputes that the executive’s power derives from the Legislature in our system of government; the question we are faced with is the extent of that derivative power in this instance.

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By s. 120, Parliament gave the Privy Council the power to proclaim “provisions” at its discretion. Many statutes, including the Criminal Law Amendment Act itself, make clear what the word “provisions” means. Section 92 of the Criminal Law Amendment Act reads in part:

92. (1) The following provisions of the said Act, namely:

(a) subsection (2) of section 113,

(b) subsection (4) of section 225, etc.

“Provision” explicity encompasses subsections. Past legislation which has intended to make the coming into force of whole sections of an Act conditional upon the issue of a proclamation, has used the word “section” and not the word “provision”. For example, An Act to amend the Canada Shipping Act, 1968-69, c. 53, s. 28, reads:

ainsi:

28. Sections 1, 2, 8 to 16, 18 to 22, 26 and 27 shall come into force on a day or days to be fixed by proclamation.

The Interpretation Act 1967-68, c. 7, s. 14(2), carefully distinguishes between the words “section” and “provision”:

14. …

(2) Where an enactment contains an interpretation section or provision…

There is in my mind no doubt that s. 120 gives the Privy Council the discretion argued for by the Attorney-General.

Once it has been ascertained that Parliament has given the executive a certain power, as it has done in this instance by virtue of s. 120, then it is beyond the power of Courts to review the manner in which the executive exercises its discretion. Courts cannot examine policy considerations animating the executive. Duff C.J. said in Reference re Chemical Regulations[2]:

I cannot agree that it is competent to any court to canvass the considerations which have, or may have, led him to deem such regulations necessary or advisable for the transcendent objects set forth…

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The words are too plain for dispute: the measures authorized are such as the Governor General in Council (not the courts) deems necessary or advisable.

These words were adopted by the Judicial Committee of the Privy Council in Attorney‑General for Canada v. Hallett and Carey[3]. In the present case, if we accept, as I do, that s. 120 gives the Privy Council the power to proclaim or not to proclaim various subsections and sub-subsections, then that is an end of the matter; this Court cannot examine the way in which this power is exercised.

It is therefore my opinion that all of s. 16 of the Criminal Law Amendment Act, with the exception of those parts not proclaimed by the Privy Council, was validly brought into force on the first day of December, 1969.

I would answer the questions submitted as follows:

Question (1) Was s. 16 of the Criminal Law Amendment Act, 1968-69, or any portion thereof validly brought into force on the first day of December, 1969?

Answer: Yes.

Question (2) If a portion only of section 16 was brought into force, what portion?

Answer: The whole of the section, with the exception of the three subsections 16(224A)(1)(c)(i), 16(224A)(1)(f)(iii)(A) and 16(224A)(6)(b).

We hereby certify to His Excellency the Governor General in Council that the foregoing are our reasons for the answers to the questions referred herein for hearing and consideration.

The CHIEF JUSTICE agreed with the opinion of HALL J.

OPINION OF HALL J.—Notwithstanding that in my view the Order in Council proclaiming parts only of s. 16 of the Criminal Law Amendment Act, 1968-69, c. 38, may indicate on the part of the executive a failure to live up to the

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spirit of what was intended by Parliament, I am nevertheless bound to hold that the remedy does not lie with the Courts. Under our system of parliamentary responsible government, the executive is answerable to Parliament, and when Parliament, by enacting s. 120, gave the executive a free hand to proclaim “any” of the provisions of the Act as set out in the English version “ou l’une ou plusieurs de ses dispositions” as in the French version, the responsibilty for the result rests with Parliament which has the power to remedy the situation if the executive has actually acted contrary to its intention.

I am, accordingly, in agreement with the reasons of my brother Judson and concur in his opinion.

We hereby certify to His Excellency the Governor General in Council that the foregoing are our reasons for the answers to the questions referred herein for hearing and consideration.

RITCHIE, SPENCE and PIGEON JJ. agreed with the opinion of MARTLAND J.

OPINION OF MARTLAND J.—By Order in Council P.C. 1970-643 dated April 14, 1970, made pursuant to s. 55 of the Supreme Court Act, the Governor in Council referred two questions to this Court for hearing and consideration arising out of the interpretation to be placed on s. 120 of the Criminal Law Amendment Act, 1968-69, (Can.), c. 38, hereinafter referred to as “the Act”, in relation to s. 16 of the Act and the Proclamation issued on November 19, 1969. The questions referred are:

Was section 16 of the Criminal Law Amendment Act, 1968-69 or any portion thereof validly brought into force on the first day of December, 1969?

If a portion only of section 16 was brought into force, what portion?

The Act provided for a number of amendments to the Criminal Code, as well as to the Parole Act, the Penitentiary Act, the Prisons and Reformatories Act, the Combines Investigation Act, the Customs Tariff and the National Defence Act.

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Section 120 of the Act provides:

This Act or any of the provisions of this Act shall come into force on a day or days to be fixed by proclamation.

The Proclamation mentioned above declared and directed that:

…sections 16 and 17 of the Criminal Law Amendment Act, 1968-69 (with the exception of the following provisions of section 224A of the Criminal Code as enacted by the said section 16, namely:

(a) subparagraph (i) of paragraph (c) of subsection (1),

(b) clause (A) of subparagraph (iii) of paragraph (f) of subsection (1), and

(c) paragraph (b) of subsection (6))

shall come into force and have effect upon, from and after the first day of December, 1969.

Section 16 of the Act, to which reference is made in the Proclamation, contemplates the repeal of ss. 222, 223 and 224 of the Criminal Code, and their replacement by new ss. 222, 223, 224 and 224A. The sections intended to be replaced defined, in s. 222, the offence of driving while intoxicated or under the influence of a narcotic drug, in s. 223, the offence of driving while impaired by alcohol or a drug, and in s. 224 contained provision for conviction of the lesser offence, under s. 223, on a charge laid under s. 222; for a presumption as to the control of a motor vehicle by occupation of the driver’s seat, and for evidence of chemical analysis of a sample of blood, urine, breath or other bodily substance. Section 224(4) provided that no person was required to give such a sample and that evidence of refusal to give such a sample could not be admissible, or the subject of comment in the proceedings.

The new group of sections would eliminate the offence of driving while intoxicated or under the influence of a narcotic drug, but would retain the offence of driving while impaired; would provide, in s. 223, by the imposition of a penalty for failure to comply, for the compulsory taking of a

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breath sample; and, in s. 224, for a new offence of driving, or having the care or control of a motor vehicle, having consumed alcohol in such a quantity that the proportion of alcohol in one’s blood exceeds 80 milligrams of alcohol in 100 millilitres of blood.

Section 224A of the Act reads as follows, including, in italics, those portions which the Proclamation has left out, and emphasizing, in the portions left in, words having reference to the portions left out:

224A. (1) In any proceedings under section 222 or 224,

(a) where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion;

(b) the result of a chemical analysis of a sample of the breath of the accused (other than a sample taken pursuant to a demand made under subsection (1) of section 223) or of the blood, urine or other bodily substance of the accused may be admitted in evidence notwithstanding that, before he gave the sample, he was not warned that he need not give the sample or that the result of the analysis of the sample might be used in evidence;

(c) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection (1) of section 223, if

(i) at the time the sample was taken, the person taking the sample offered to provide to the accused a specimen of the breath of the accused in an approved container for his own use, and, at the request of the accused made at that time, such a specimen was thereupon provided to him,

(ii) the sample was taken as soon as practicable after the time when the offence was alleged to have been committed and in any event not later than two hours after that time,

(iii) the sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

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(iv) a chemical analysis of the sample was made by means of an approved instrument operated by a qualified technician,

evidence of the result of the chemical analysis so made is, in the absence of any evidence to the contrary, proof of the proportion of alcohol in the blood of the accused at the time when the offence was alledged to have been committed;

(d) a certificate of an analyst stating that he has made a chemical analysis of a sample of the blood, urine, breath or other bodily substance of the accused and stating the result of his analysis is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

(e) a certificate of an analyst stating that he has made an analysis of a sample of any substance or solution intended for use in an approved instrument and identified in the certificate and that the sample analyzed by him was found to be suitable for use in an approved instrument, is evidence that the substance or solution so identified is suitable for use in an approved instrument, without proof of the signature or the official character of the person appearing to have signed the certificate; and

(f) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection (1) of section 223, a certificate of a qualified technician stating

(i) that a chemical analysis of the sample has been made by means of an approved instrument operated by him in which a substance or solution suitable for use in that approved instrument and identified in the certificate was used,

(ii) the result of the chemical analysis so made, and

(iii) if the sample was taken by him,

(A) that at the time the sample was taken he offered to provide to the accused a specimen of the breath of the accused in an approved container for his own use and, at the request of the accused made at that time, such a specimen was thereupon provided to him,

(B) the time when and place where the sample and any specimen described in clause (A) was taken, and

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(C) that the sample was received from the accused directly into an approved container or into an approved instrument operated by him,

is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.

(2) No person is required to give a sample of blood, urine or other bodily substance for chemical analysis for the purposes of this section except breath as required under section 223, and evidence that a person failed or refused to give such a sample or that such a sample was not taken is not admissible nor shall such a failure or refusal or the fact that a sample was not taken be the subject of comment by any person in the proceedings.

(3) In any proceedings under section 222, evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made to him by a peace officer under subsection (1) of section 223 is admissible and the court may draw an inference therefrom adverse to the accused.

(4) An accused against whom a certificate described in paragraph (d), (e) or (f) of subsection (1) is produced may, with leave of the court, require the attendance of the analyst or of the qualified technician, as the case may be, for the purposes of cross‑examination.

(5) No certificate shall be received in evidence pursuant to paragraph (d), (e) or (f) of subsection (1) unless the party intending to produce it has, before the trial, given to the accused reasonable notice of his intention together with a copy of the certificate.

(6) In this section,

(a) “analyst” means a person designated by the Attorney General as an analyst for the purposes of this section;

(b) “approved container” means a container of a kind designed to receive a sample of the breath of a person for chemical analysis and that is approved as suitable for the purposes of this section by order of the Attorney General of Canada;

(c) “approved instrument” means an instrument of a kind that is designed to receive and make a chemical analysis of a sample of the breath of

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a person in order to measure the proprtion of alcohol in the blood of that person and that is approved as suitable for the purposes of this section by order of the Attorney General of Canada; and

(d) “qualified technician” means a person designated by the Attorney General as being qualified to operate an approved instrument.

The question in issue on this reference is as to whether s. 120 of the Act empowered the Governor in Council by proclamation to order a portion only of s. 16 of the Act to be brought into effect as a result of the exclusions from s. 16 defined in the Proclamation.

Section 120 confers upon the Governor in Council a discretion only as to time of operation, but not as to content. It authorizes a declaration by proclamation, as to the day on which provisions of the Act shall come into effect. It does not delegate any power to legislate.

The scope of the power defined in s. 120 is to fix the day on which any of the “provisions” of the Act are to come into force. The all important question is as to what is meant by the word “provisions.” The Attorney General of Canada contended that the meaning is clear. He referred to a number of dictionary definitions of the word, including the following, from the Oxford English Dictionary:

Each of the clauses or divisions of a legal or formal statement, or such statement itself, providing for some particular matter; also, a clause in such a statement which makes an express stipulation or condition; a proviso.

His position was that “any of the provisions” would clearly include any section, subsection, paragraph, subparagraph, or, virtually, any portion of the Act. Accordingly, so long as that which was proclaimed was an actual portion of the Act, its proclamation would be valid. Whether or not the proclamation of a portion only of a section of the Act was desirable is, he submitted, a question of policy, with which the Court is not concerned.

If the word “provisions” as used in s. 120 has this clear and definite meaning, as contended,

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this argument would be valid. If, for example, s. 120 of the Act had used the word “sections” instead of “provisions”, there is no doubt that a proclamation of any section would be valid whether or not it was intimately related to another section, not so proclaimed.

I am not, however, persuaded that the word “provisions” in its context in s. 120 has the clear meaning which the Attorney General of Canada claimed that it has.

The meaning of the word “provision” in s. 25(1) of the Finance Act, 1941 (U.K.), c. 30, was under consideration by the House of Lords in Countess of Berkeley v. R.G.W. Berkeley[4]. That subsection provided as follows:

25 (1) Subject to the provisions of this section, any provision, however worded, for the payment, whether periodically or otherwise, of a stated amount free of income tax, or free of income tax other than surtax, being a provision which (a) is contained in any deed or other instrument, in any will or codicil, in any order of any court, in any local or personal Act, or in any contract, whether oral or in writing; and (b) was made before Sept 3, 1939; and (c) has not been varied on or after that date, shall, as respects payments falling to be made during any year of assessment, the standard rate of income tax for which is 10s. in the £ have effect as if for the stated amount there were substituted an amount equal to twenty twenty-ninths thereof.

The question in issue was as to whether “provision” referred to the actual words used in a clause in a codicil, or to the result provided by the clause. Lord Simonds, whose interpretation of the subsection was the same as that of the majority, said, at p. 166:

That the section is not very artistically drawn I would be prepared to agree. In particular, little skill is shown in the use of the word “provision.” That is a word of diverse meanings which slide easily into each other. It has come sometimes to mean a clause or proviso, a defined part of a written instrument. Or it may mean the result ensuing from, that which is provided by, a written instrument or part of it. Sect. 25(1) opens with the words “Subject to the provisions of this section,” and in this phrase either

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or both of the meanings I have given may be intended. Then comes the phrase “provision however worded,” where the first meaning would seem more apt, though the second is well enough. Thirdly, the word is used in the context of (a) “contained,” (b) “made,” and (c) “varied,” and here, though either meaning is appropriate to (a) or (c), it is the second meaning only which is appropriate to (b). I have said enough to show that it is not safe to build upon the fine shades of meaning of the word “provision,” but the balance is, I think, in favour of giving to the expression, “being a provision which was made before,” the second meaning that I have indicated. For one does not speak of “making” a provision, if by provision one means a clause or section.

I cite this case as illustrating that the word “provision” is not, in itself, clear and precise, but that it is “a word of diverse meanings.” One of the meanings given to it in the Oxford English Dictionary is “something provided, prepared, or arranged in advance.” In my opinion that is the meaning intended in s. 120. It means that which Parliament has provided in the Act. Thus interpreted the section would mean that, by proclamation, the whole Act could be brought into effect, or that which Parliament had provided in the various portions of the Act.

The difference between this interpretation of the word “provisions” and that contended for by the Attorney General of Canada is that under his interpretation it is open to the Governor in Council to proclaim any part of the Act, including any part of a section, subsection, or paragraph, even though the part proclaimed was obviously interrelated with another part not proclaimed. The other interpretation means that in proclaiming portions only of the Act, the Governor in Council must proclaim the whole of any portion dealing with a specific subject‑matter. A single section, or a subsection, may, on this basis, be a “provision”, or it may not. The sections and subsections described in s. 92(1) and (2) of the Act are “provisions” within this meaning. But if the section or subsection is interrelated with other subsections or sections, in such a way that the proclamation of one part without the other would achieve a result which could not have been intended by Parlia-

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ment, then it is not, in itself, a “provision”, because Parliament did not provide it, without the other parts.

Maxwell, on The Interpretation of Statutes, 12th ed., p. 105, says:

Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided.

The consequences of adopting the interpretation sought by the Attorney General of Canada can be examined by considering its application. Among many similar examples which could be selected, s. 15 of the Act is a good illustration. That section provides as follows:

15. Section 209 of the said Act is repealed and the following substituted therefor:

209. (1) Every one who causes the death, in the act of birth, of any child that has not become a human being, in such a manner that, if the child were a human being, he would be guilty of murder, is guilty of an indictable offence and is liable to imprisonment for life.

(2) This section does not apply to a person who, by means that, in good faith, he considers necessary to preserve the life of the mother of a child, causes the death of such child.

It was frankly conceded by counsel for the Attorney General of Canada that, assuming the correctness of his submission, s. 120 would empower the Governor in Council to proclaim subs. (1) above, without subs. (2).

In my opinion this proposition cannot be sustained. Using s. 15 as an example, it is my opinion that to proclaim s. 209 (1) of the Criminal Code, as provided for in s. 15, without the saving clause, subs. (2), is to bring into force something for which Parliament never provided. What Parliament has provided, in relation to the killing of an

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unborn child in the act of birth, is not subs. (1) alone or subs. (2) alone, but both together. It is the whole section which constitutes the provision which can be brought into effect by proclamation on a particular day.

The point which I am seeking to make is that the proclamation of parts only of a portion of the Act dealing with a specific subject-matter can result in the bringing into force of something which was not provided by Parliament. If it does have that result, it is not authorized by s. 120, because, in that event, what is proclaimed is not a provision of the Act, but a part of a provision which it cannot be said would have been enacted by Parliament, standing alone.

A glance at s. 16, in the form in which it was proclaimed, demonstrates this fact. Subparagraph (c) (iii) of s. 224A (1) refers to the receiving of a sample from the accused into “an approved container”, but the definition of those words has been eliminated. Clause (B) of subpara. (f) (iii) of the same subsection calls for the technician’s certificate to state the time and place where any specimen described in clause (A) was taken. This is impossible, because clause (A) was not included in s. 224A as proclaimed. Clause (C) refers to “an approved container.”

To achieve what the Governor in Council attempted to achieve by proclamation clearly required an amendment of s. 16, and this is something which the Governor in Council had no authority to do.

It is my opinion that s. 16 of the Act is a self-contained provision dealing with a particular matter; i.e., the subject of driving while under the influence of alcohol or a drug. It commences by repealing not one, but a group of three sections of the Criminal Code. It provides for their replacement by a group of four sections. These four sections are all interrelated. Section 222 defines the offence of driving while impaired. Its enforcement is implemented by the use of the compulsory breath test provided for in s. 223. Section 224 creates the new statutory offence of driving with more than the specified proportion of alcohol in the blood. But the primary method of proof of the

[Page 795]

offence under s. 222, and under s. 224, is by means of the chemical analysis provided for in s. 224A.

Section 224A contains certain safeguards for the protection of an accused person, in that he is given the right to receive a specimen of his breath in an approved container, and such requirement must be fulfilled before the Crown can give evidence of the chemical analysis made on its behalf. These are the provisions directed to be omitted by the Proclamation which purported to bring the remaining portions of s. 16 of the Act into effect. In my opinion what that Proclamation declared to be in effect was not, by reason of the omission, that which Parliament had enacted in s. 16. By proclaiming only a part of s. 16, the Governor in Council was, in essence, amending that which Parliament itself had provided, and, in so doing, exceeded the powers given by s. 120.

In answer to the two questions put to the Court, I would answer that:

1. (a) Section 16 of the Act was not proclaimed in whole, because the Proclamation did not purport to do that.

(b) The proclamation of a part only of s. 16 of the Act was invalid as being in excess of the powers given by s. 120.

2. The answer to the second question is that no portion of s. 16 was brought into effect.

We hereby certify to His Excellency the Governor General in Council that the foregoing are our reasons for the answers to the questions referred herein for hearing and consideration.

SPENCE and PIGEON JJ. agreed with the opinion of RITCHIE J.

OPINION OF RITCHIE J.—I have had the advantage of reading the Opinion of my brother Martland with which I am in full agreement, but there is one phase of the matter with which he did not find it necessary to deal and concerning which I wish to express an opinion.

My brother Martland has reproduced s. 16 of the Criminal Law Amendment Act, 1968-69

[Page 796]

(Can.), c. 38 (hereinafter called the “Act”), as it was enacted by Parliament, and has indicated the deletions made from the original text by the proclamation of November 19, 1969.

The basic question raised by this Reference is whether the authority vested in the Governor in Council by s. 120 of the Act is limited to the administrative function of fixing by proclamation the day or days upon which the Act, or any of its provisions, are to come into force, or whether it is a legislative authority which envisages not only the right to proclaim, but also the right to make substantive changes in, the provisions of the law as enacted by Parliament.

If the authority is a legislative one which has been exercised in a manner other than that which Parliament intended, then the matter is one which Parliament itself can correct; but if, as I think, it is purely administrative, then the question of whether it has been exceeded or not raises the issue of whether or not the proclamation is ultra vires, and this is a question for the courts just as was the question posed in the Reference Re the Regulations in Relation to Chemicals[5] and many other cases.

In my opinion the omission to proclaim ss. 224A(1)(c)(i) and 224A(1)(f)(iii)(A) made a substantive change in the law which Parliament had enacted concerning the use to be made in evidence of the chemical analysis of a sample of breath which an accused person had been required to provide to a peace officer under the authority of s. 223.

The effect of the change is to deprive the accused of the right to be provided with a sample of his breath for his own use and thus to deprive him of the right to make a full defence to a charge under s. 224 when the evidence, or a certificate of a person designated by the Attorney General has proved that the result of his analysis of the breath sample taken under s. 223 shows that the proportion of alcohol in the blood of the accused at the time when the sample was taken exceeded 80 milligrams of alcohol in 100

[Page 797]

millilitres of blood. It is plain that the accused has no way of answering this evidence unless he has been furnished with a specimen of the sample for his own use and analysis.

As the portions of s. 224A excepted in the proclamation deal with the evidentiary effect to be given to the breath sample taken under s. 223, they are therefore, in my opinion, ancillary to that section just as they are ancillary to s. 224 which creates an offence which is to be proved by an analysis of the breath sample. I think also that it is important to note that the first words of s. 224A read: “In any proceeding under section 222 or 224” and thus makes it apparent that Parliament purposely made s. 224A ancillary to s. 222.

For these reasons, as well as for those stated by my brother Martland, I am satisfied that in enacting s. 16 of the Act, Parliament was making one provision dealing with the subject of driving while under the influence of alcohol or a drug and that the exceptions made by the proclamation constitute substantive changes in that provision.

It has been suggested that in seeking to determine the true construction to be placed on s. 120 no assistance can be derived or should be sought by referring to portions of the Act which have not yet been proclaimed. This argument is based on the language of s. 5(2) of the Interpretation Act, 1967-68 (Can.), c. 7, which reads:

5. (2) Where an Act contains a provision that the Act or any portion thereof is to come into force on a day later than the date of assent to the Act, such provision shall be deemed to have come into force on the date of assent to the Act.

It is therefore said that while s. 120 has full effect, no other sections of the Act have any force until they are proclaimed and are therefore of no assistance in seeking to determine the intention of Parliament when it enacted s. 120. I do not agree with this contention as I think that whether they have been proclaimed or not, the provisions of the Criminal Law Amendment Act are those of an act of the Parliament of Canada and are to be taken as expressions of the will and

[Page 798]

intention of Parliament. In this regard I refer to s. 5(1) of the Interpretation Act which reads:

5. (1) The Clerk of the Parliaments shall endorse on every Act, immediately after the title thereof, the day, month and year when the Act was assented to in Her Majesty’s name; such endorsement shall be taken to be a part of the Act, and the date of such assent shall be the date of the commencement of the Act, if no other date of commencement is therein provided.

It is interesting to note that this section is identical with s. 7 of the Interpretation Act, R.S.C. 1952, c. 158, except that in the earlier statute the last words of the section read “if no other commencement is therein provided”. It is apparent that the words “date of” were added after the word “other” in this section when the Interpretation Act was repealed and re-enacted in 1967. I make nothing of the fact that no date is provided in the present act because this matter was not raised in argument before us, but the new wording appears to me to be a clear indication that proclamations such as the one here in question were intended to be concerned with “date” rather than substance.

It is in any event my view that in construing s. 120, it is pertinent to have reference to the whole of the statute as it was enacted by Parliament in order to determine whether Parliament intended to empower the executive to so alter a provision of the Act that it had passed as to deprive accused persons of a right which Parliament itself had expressly preserved.

In this regard I do not think that s. 2 of the Canadian Bill of Rights, 1960 (Can.), c. 44, can be overlooked because it constitutes an express direction as to the way the laws of Canada are to be construed and applied and there can be no doubt that s. 120 of the Act is a law of Canada. Section 2 of the Bill of Rights provides:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the

[Page 799]

rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to…

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;…

In my view, the right to make a full defence is an integral part of “the right to a fair hearing in accordance with the principles of fundamental justice” as it is also a part of the right of every accused to the protection of the law, the existence of which in Canada is recognized and declared by s. 1(b) of the Bill of Rights.

No question is here raised as to the effect which the Bill of Rights would have had if Parliament itself had enacted s. 16 in the form in which it was proclaimed and I do not find it necessary to deal with any such question.

I refer to the Bill of Rights solely for the purpose of determining the true construction to be placed on s. 120 of the Act and in view of its provisions, I do not think that the doubts and differences which so obviously exist as to the construction to be placed on that section are to be resolved by imputing to Parliament the intention to authorize the executive to abrogate the fundamental right of an accused person to make a full defence and this is, in my view, particularly the case when Parliament itself has enacted a provision which expressly preserves that right.

For all these reasons I am of opinion that the two questions put to the Court should be answered in the manner proposed by my brother Martland.

We hereby certify to His Excellency the Governor General in Council that the foregoing are our reasons for the answers to the questions referred herein for hearing and consideration.

OPINION OF LASKIN J.—I agree with my brother Judson, and add the following observations.

Parliament’s plenary power to legislate conditionally or by delegation is not called in issue

[Page 800]

in this Reference, nor, indeed, could it be. Counsel were agreed that s. 120 was not a delegation of legislative power, but, as I understand their opposing arguments, Mr. Maxwell and Mr. Anderson drew different conclusions from this agreed proposition. Mr. Maxwell relied on the fact that only conditional legislation was involved to support his submission that since nothing was operative until made so by proclamation, it could not be said that the Governor in Council was amending what Parliament had enacted. Mr. Anderson’s view was that unless the challenged proclamation herein met the symmetrical standard for which he contended (and to which I will refer later), it would result in amending the legislation and would hence be an unauthorized exercise of legislative power.

I do not think that it matters whether s. 120 of the Criminal Law Amendment Act, 1968-69 (Can.), c. 38, be characterized as merely conferring a power to bring into operation legislation which would remain dormant without its exercise, or whether it be regarded as being, on a sophisticated analysis, a delegation of legislative authority. That there may be difficulty in a particular case in characterizing the power is obvious from Rex v. Zaslavsky[6]; but, absent any constitutional issue (and there is none here) it matters not how the power is formally classified. Its import is clear.

The single issue in this case is the scope of the authority conferred by s. 120. The very bulk of the Act in which it appears reflects on the multiplicity of proclamations which s. 120 envisages. There is here no such simple formula as “This Act shall come into force on a day to be fixed by proclamation.” We are not faced with an “all or nothing” power to proclaim; and once it is conceded, as it must be, under both the English and French versions of s. 120, that what I may call piecemeal implementation or effectuation is authorized, the choices to be made depend on the pleasure of the Governor in Council.

Of the whole Act of 1968-69, c. 38, the only operative part when the Royal assent was given was s. 120: see s. 5 (2) of the Interpretation

[Page 801]

Act, 1967-68 (Can.), c. 7. There is no limiting context in the words of s. 120 unless it be found in the word “provisions”. The argument against the validity of the proclamation necessarily had to be founded on a “structured” appreciation of that word; and, indeed, Mr. Anderson put his case on the footing that although perhaps s. 222 of the Criminal Code, as re-enacted by s. 16 of the Criminal Law Amendment Act of 1968-69, could properly be proclaimed or not proclaimed by itself (since it was a re-enactment of an existing s. 223), there could be no valid proclamation of the remaining portion of s. 16, unless ss. 223, 224 and 224A (newly enacted thereby) were all included in it. This indicates the dilemma which arises in the attempt to construe “provisions” on a “block building” basis; and I should add that this operation ignores the effect of the word “any” in the English version of s. 120, and of the words “l’une ou plusieurs de” in the French version.

Parliament has, of course, laid out the entire canvass (so to speak) which was to be illuminated by such number of proclamations as the Governor in Council might issue. The objection taken here is that a proclamation must cast its light in such a way as to capture a portion of the canvass that has a unity or integrity. There is a subjectivity about this that allows for very wide choices, making it unreasonable, in my view, to say that the proclamation in question here is necessarily bad.

I think we should be very wary of judicializing the exercise of the very broad executive power conferred by Parliament in this case when it relates to the bringing into force of legislation. We are involved here with the field of original enactment and not in any appreciable sense with that of interpretation. As has been aptly observed, “the enactment of a law involves both the determination of what the rule shall be and that such rule shall have the force of law”: see Rottschaefer, Constitutional Law (1939), p. 73. The promulgation of subordinate legislation stands on a different footing because in such case there is already in force the master legislation with which the subordinate enactment must comport.

[Page 802]

It was evident from the parade of definitions of the word “provisions” disclosed in the factums filed on this Reference that it has a wide array of meanings; and, certainly, in the context of the Criminal Law Amendment Act, 1968-69, and in the light of the Interpretation Act, it may mean more or may mean less than a section or a subsection, or a sub-subsection or even a paragraph of a sub-subsection. Unless this Court can say with certainty what it means and that it cannot have the meaning reflected in the proclamation that is under review here, its application is better left to the executive to which Parliament has entrusted it. I am of the opinion that the use of the proclamation power in this case to limit the operative force of s. 16 by excluding the whole of a numbered paragraph of a sub-section, the whole of a numbered sub-paragraph and also the whole of a sub-section is consistent with the power to proclaim some provisions and not others.

It is beside the point that the result of the proclamation in this case may not be congenial to this Court. We miss a step in the legislative process if we purport to read the consequences of the proclamation back into the severable power to promulgate the legislation. To look at the proclaimed legislation in the light of a supposed parliamentary intention, gleaned from looking at the legislation as if it had been made effective without the conditional terms of s. 120, is to truncate that section and plunge into an abyss of speculation. Moreover, it is to make an assumption that there was a limited trust reposed by Parliament in the executive, and, further, that it lay with the Courts to enforce that trust. If there has been a failure to live up to Parliament’s expectations on the manner in which the proclamation power should be exercised, the remedy does not lie with the judges.

I should add, in deference to a submission thereon, that my conclusion is not affected by the Canadian Bill of Rights. It was contended in that connection, first, that the duty laid upon the Minister of Justice by s. 3 of that statute carried the consequence that the proclamation would not result in the shedding of safeguards prescribed by Parliament for an accused; and, further, and

[Page 803]

more particularly, that the effect of the proclamation was offensive to s. 2 (d) of the Canadian Bill of Rights; and, additionally, that the due process clause of s. 1 (a) was infringed. I should say that the exact thrust of the contentions on s. 2 (d) and s. 1 (a) was not elaborated.

The first branch of this submission is simply a restatement of the argument that statutory integrity was violated by the proclamation; and I need not repeat the reasons already given for rejecting this anticipatory view of the operative shape of s. 16 of the Criminal Law Amendment Act, 1968-69.

The second branch of the submission, if it is not premature, suggests that a person accused under the newly proclaimed ss. 222 or 224 of the Criminal Code may be compelled to criminate himself. That is simply not so. There is no compellability of an accused to self‑crimination by reason only of statutory prescriptions for presumptive proof of facts in issue. Finally, I cannot appreciate how any principle of due process is engaged under the proclamation power given by s. 120 of the Criminal Law Amendment Act, 1968-69. Counsel did not suggest where the violation of due process lay by reason of the exercise of the proclamation power. It can only be assumed from his argument as a whole that it lay in the failure to proclaim the excluded “provisions”. Certainly, he raised no question of due process in relation to the other terms of s. 16. In these circumstances, this branch of his submission carries him no farther than his main argument on the meaning of “provisions” and, accordingly, fails.

 



[1] (1970), 10 D.L.R. (3d) 614, 3 C.C.C. 296.

[2] [1943] S.C.R. 1 at 12, 79 C.C.C. 1, [1943] 1 D.L.R. 248.

[3] [1952] A.C. 427 at 446, 6 W.W.R. (N.S.) 23, [1952] 3 D.L.R. 433.

[4] [1946] 2 All E.R. 154.

[5] [1943] S.C.R. 1, 79 C.C.C. 1, [1943] 1 D.L.R. 248.

[6] [1935] 3 D.L.R. 788, 2 W.W.R. 34, 64 C.C.C. 106.

 

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