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Supreme Court of Canada

Constitutional law—Municipal by-law prohibiting the holding of assemblies and demonstrations—By-law of a local or private nature—Matter related to criminal law—Respect for fundamental freedoms—British North America Act, ss. 91, 92—Criminal Code, R.S.C. 1970, c. C-34, ss. 64 to 70—Canadian Bill of Rights, R.S.C. 1970, App. Ill—City of Montreal By-law No. 3926.

On November 12, 1969 the City of Montreal passed an ordinance prohibiting “the holding of any assembly, parade or gathering on the public domain of the City of Montreal for a time-period of thirty days”. This ordinance was passed under By-law 3926, passed the same day, s. 5 of which allowed the Executive Committee to take such a measure if there were “reasonable grounds to believe that the holding of assemblies, parades or gatherings will cause tumult, endanger safety, peace or

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public order”. Appellant Claire Dupond attacked the constitutional validity of the By-law and the Ordinance and won her case in the Superior Court. The respondents, the City of Montreal and the Attorney General for Quebec, both appealed to the Quebec Court of Appeal, which in separate judgments set aside the judgment at trial. These are the judgments separately appealed from by the Attorney General for Canada and Claire Dupond: the argument in this Court concerned only s. 5 of the By-law (and its ancillary provisions, ss. 6 and 7) and the Ordinance.

Held (Laskin C.J. and Spence and Dickson JJ. dissenting): The appeals should be dismissed.

Per Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ.: In Hodge v. The Queen, (1883), 9 A.C. 117, the Privy Council, in upholding the constitutional validity of regulations enacted pursuant to the Ontario Liquor License Act, referred to them as “regulations in the nature of police or municipal regulations of a merely local character… and such as are calculated to preserve in the municipality, peace… and repress… disorderly and riotous conduct”. This definition applies perfectly to s. 5 of the impugned By-law and Ordinance, which are on their face regulations of a local character. Both s. 5 and the Ordinance relate to the use of the municipal public domain in exceptional circumstances. These are not punitive but essentially preventive measures: the preventive aspect of the Ordinance is illustrated both by the fact that the holding of any assembly, parade or gathering is prohibited and by its temporary nature. The suppression of conditions likely to favour the commission of crimes falls within provincial competence. Despite the prohibitory form of the ordinances which may be passed under s. 5, the latter may be said to be, in substance, regulatory of the use of the public domain. Even if these ordinances were strictly prohibitory, they would still be valid since they relate to a matter of a merely local nature in the Province within the meaning of s. 92(16) of the B.N.A. Act. They also derive validity from heads (8), (13), (14) and (15) of s. 92.

When an enactment is in itself of a local or private nature, the onus of showing that it otherwise comes within one of the subjects enumerated in s. 91 falls upon the parties so asserting. Appellants’ argument that s. 5 and the Ordinance deal with a field already covered by the Criminal Code in ss. 64 to 70, namely riots, cannot be accepted. There are in the Criminal Code no preventive measures similar to s. 5 of the By-law. Even if

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Parliament could enact measures of a preventive nature under its ancillary powers, the fact that it has not exercised such a power cannot prevent a province or a city from exercising their own powers, as long as the provincial or municipal legislation complementary to federal legislation does not collide with the latter. Nor does the Ordinance interfere with freedom of religion, of the press or of speech or impose religious observances, in such a way as to bring the matter within the criminal law power of Parliament and thereby make the Ordinance and the By-law Ultra vires under the principles framed by this Court in Saumur v. City of Quebec, [1953] 2 S.C.R. 299, and in other subsequent decisions. In the case at bar, the holding of all assemblies is prohibited, irrespective of religion, ideology or political views. Furthermore, the discretionary power to pass an ordinance under s. 5 of the By-law is not an uncontrollable discretion, as was the case in Saumur: it is vested in the Executive Committee of the City, which cannot exercise it except on reports confirming the existence of an exceptional situation.

In reply to the submission made by appellants that s. 5 and the Ordinance are in relation to and in conflict with the fundamental freedoms of speech, of assembly and association, of the press and of religion which were inherited from the United Kingdom and made part of the Constitution by the preamble of the B.N.A. Act or protected by the Canadian Bill of Rights, it should be remembered that: (1) none of the freedoms referred to, is placed above the reach of all legislation by the Constitution; (2) none of these freedoms is a single matter coming within exclusive federal or provincial jurisdiction; (3) these freedoms are distinct and independent of the faculty of holding assemblies, parades, gatherings, demonstrations or processions on the public domain of a city; (4) the right to hold public meetings on a highway or in a park is unknown to English law: consequently it cannot have become part of the preamble of, the B.N.A. Act; (5) the holding of assemblies, parades or gatherings on the public domain is a matter which, depending on the aspect, comes under federal or provincial competence; (6) the Canadian Bill of Rights does not apply to provincial and municipal legislation.

Per Laskin C.J. and Spence and Dickson JJ. dissenting: It is obvious from the recitals as well as from the terms of s. 5 of the By-law that the City of Montreal has enacted a mini‑Criminal Code, dealing with apprehended breach of the peace, apprehended violence and the maintenance of public order. The only local or private

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aspect is the territorial ambit of the By-law and of the Ordinance, and this has never been a test of constitutional validity.

It is clear that the end of the challenged By-law is not regulation of the public domain, and in particular s. 5 and the Ordinance passed in implementation thereof are explicitly directed to breach of the peace and to the maintenance of public order. The enactment of the By-law as an exceptional measure is itself an indicator of how far removed it is from any concern, except a consequential one, with regulation of streets and public parks. In order for a provincial prohibition to be valid it has to be associated with a valid scheme of regulation, whereas here s. 5 has a strictly prohibitory character and there is no substratum of regulation upon which a sanction has been mounted. The assertion that the By-law was called forth by exceptional conditions in itself makes the By-law suspect. There is no accretion to provincial legislative authority to enable it to deal with apprehended danger merely because the provincial government or delegated municipal authorities are of the opinion that preventive measures must be taken. These may be taken under ordinary police powers and in accordance with the Criminal Code. As for the argument that provincial (or validly authorized municipal) legislation can complement the federal Criminal Code, it flies in the face of the scheme of distribution of exclusive powers and it is not supported by any authorities: these have consistently held that a province cannot legislate to reinforce the criminal law. The Canadian case that has the greatest affinity to the case at bar is District of Kent v. Storgoff (1962), 38 D.L.R. (2d) 362, where it was held that a regulation designed “to prevent conditions arising which may lead to a breach of the peace or unlawful assembly” came under the Criminal Code and the exclusive jurisdiction of the Parliament of Canada. The general terms of the By-law do not give it a local character but on the contrary conflict with a central assumption of our criminal law that the police are expected to enforce it against violators and not against innocents, and are an aggravation of the municipality’s intrusion into the field of criminal law.

[Hodge v. The Queen (1883), 9 A.C. 117; Reference re the Adoption Act, [1938] S.C.R. 398; R. v. Campbell, [1962] O.R. 1134, applied; La Ville de Montréal v. X, [1970] R.L. 276; Bédard v. Dawson, [1923] S.C.R. 681; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 15, 73 D.L.R. (3d) 491; L’Union St-Jacques de Montréal v. Bélisle (1874), L.R. 6 P.C. 31; Provincial

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Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396; Validity of Section 92(4) of the Vehicles Act, 1957 (Sask.), [1958] S.C.R. 608; Smith v. The Queen, [1960] S.C.R. 776; O’Grady v. Sparling, [1960] S.C.R. 804; Stephens v. The Queen, [1960] S.C.R. 823; Lieberman v. The Queen, [1963] S.C.R. 643; Fawcett v. Attorney General for Ontario, [1964] S.C.R. 625; Mann v. The Queen, [1966] S.C.R. 238; Ex parte Lewis (1888), 21 Q.B.D. 191, referred to; Re Race Track and Betting (1921), 61 D.L.R. 504; District of Kent v. Storgoff (1962), 38 D.L.R. (2d) 362; Johnson v. Attorney General of Alberta, [1954] S.C.R. 127; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Henry Birks & Sons Ltd. v. City of Montreal, [1955] S.C.R. 799; Switzman v. Elbling, [1957] S.C.R. 285; Reference re Alberta Statutes, [1938] S.C.R. 100, distinguished.]

APPEALS from two decisions of the Court of Appeal of Quebec,[1] reversing a judgment of the Superior Court annulling a municipal by-law and ordinance. Appeals dismissed, the Chief Justice and Spence and Dickson JJ. dissenting.

Paul Ollivier, Q.C., for the appellant Attorney General for Canada.

Pierre Langevin, for the appellant Claire Dupond.

Michel Côté, Q.C., André Tremblay and N. Lacroix, for the respondent City of Montreal.

Louis Payette, for the respondent Attorney General for Quebec.

William Henkel, Q.C., for the intervenor.

The judgment of Laskin C.J. and of Spence and Dickson JJ. was delivered by

THE CHIEF JUSTICE (dissenting)—The terms of the impugned By-law and of the Ordinance, passed pursuant to s. 5 thereof, are set out in the reasons of my brother Beetz which I have had the advantage of reading, and I shall not repeat them. It is obvious from the recitals as well as from the terms of the key s. 5 that the City of Montreal has enacted a mini-Criminal Code, dealing with apprehended breach of the peace, apprehended

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violence and the maintenance of public order, and we are urged to sustain this incursion into the field of criminal law—a matter exclusively for the Parliament of Canada—because it is a matter of a local or private nature in the Province.

The only local or private aspect is, in my opinion, the territorial ambit of the By-law and of the Ordinance, and this has never been a test of constitutional validity. My brother Beetz has referred to the challenged provisions as regulatory of the public domain, the reference being to public streets and parks. It is not, however, directed to that end as the recitals and central terms clearly indicate. What it does, plainly and without reference to any regulatory consideration, is to make it a punishable offence—a crime—to breach s. 5 of the By-law and the Ordinance. Sections 1 and 3 of the By-law do have a relationship to traffic regulation and may be justified in themselves on that basis as provisions which may competently be authorized by provincial legislation. They are, however, integrated in other provisions which are in no sense directed to traffic considerations or to any regulatory use of public parks and, indeed, as my brother Beetz has noted, the focus is on s. 5 of the By-law and on the Ordinance passed in implementation thereof. That provision is so explicitly directed to breach of the peace and to the maintenance of public order as to fall squarely within exclusive federal authority in relation to the criminal law.

The very title of the By-law, as one “relating to exceptional measures to safeguard the free exercise of civil liberties, to regulate the use of the public domain and to prevent riots and other violations of order, peace and public safety” shows its character. The references to safeguarding the free exercise of civil liberties and to regulation of the use of the public domain are hollow references, not in any way fulfilled by the substantive terms of the By-law as are the references to riots, breach of the peace and public order. Moreover, the enactment of the By-law as an exceptional measure is itself an indicator of how far removed it is from any con-

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cern, except a consequential one, with regulation of the use of streets and public parks. The enactment of the By-law smacks of an assertion of municipal authority to legislate for the “peace, order and good government” of the City of Montreal, an authority which I do not find in the catalogue of provincial powers under the British North America Act.

The central s. 5 of the By-law and the Ordinance are a long way from Hodge v. The Queen[2]. That case was concerned with provincial liquor licensing legislation and hence had a constitutional foundation in the local regulation of a trade or business in the Province. The legislation was, therefore, sustainable either under s. 92(13) or under s. 92(16) of the British North America Act, although it will be recalled that in Attorney General of Manitoba v. Manitoba Licence Holders’ Association[3], the Privy Council preferred to assign provincial regulatory liquor legislation to s. 92(16). There is no similar foundation for the By-law and especially for s. 5 thereof, which is enacted as a strict prohibitory provision unredeemed by any regulatory aspect.

No doubt a prohibition, as a matter of its impact, is regulatory but, for constitutional purposes, provincial prohibitions to be valid have to be associated with a valid scheme of regulation as enforcements or reinforcements thereof, and are not sustainable as peremptory directions against forbidden conduct or behaviour. I am far from supporting the full implications of City of Toronto v. Virgo[4] where the Privy Council, at p. 93, said this in reference to a municipal by-law:

…There is a marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate

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and govern seems to imply the continued existence of that which is to be regulated or governed.

Yet the distinction drawn in the case is apt here where there is no substratum of regulation upon which a sanction has been mounted.

Two other points are made by the proponents of the By-law. One is that it was called forth by exceptional conditions in Montreal, an assertion which in itself makes the By-law suspect. There is no accretion to provincial legislative authority to enable it to deal with apprehended riots or public disorder merely because the provincial government or delegated municipal authorities are of the opinion that preventive measures must be taken. They may be taken under ordinary police powers and in accordance with the federal Criminal Code, to which I will refer later in these reasons. The second point is that there is no constitutional bar to provincial (or validly authorized municipal) legislation which complements the federal Criminal Code. This is a proposition which flies in the face of the scheme of distribution of legislative power; it is destructive of the principle of exclusiveness as expressed in Union Colliery Co. v. Bryden[5], at p. 588; and it is not supported by any authorities. Cases such as O’Grady v. Sparling[6] and Mann v. The Queen[7], to take two of those relied upon by the proponents of the By-law, turn on a conclusion that the enactments challenged therein were independently valid as being in relation to a matter within provincial competence. Judson J., speaking for the majority in O’Grady v. Sparling, at p. 810, said that “The power of a provincial legislature to enact legislation for the regulation of highway traffic is undoubted… [and] the legislation under attack here is part and parcel of this regulation”. It cannot be said of the challenged s. 5 of the By-law in this case that it has any such anchorage.

Whether the apt term be “complementary” or “supplementary”, it has hitherto been a mark of our constitutional jurisprudence that a Province

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cannot legislate to reinforce the federal criminal law: Johnson v. Attorney General of Alberta[8]. The The fact that it might seek to foreclose a breach of the criminal law by preventive measures did not relieve against this provincial disability: see Attorney General for Ontario v. Koynok[9]. There may, of course, be differences as to the appropriateness of the application of this principle in particular cases but the principle itself has not, as I read the case law, been heretofore doubted.

If any reported case in the Canadian Courts has an affinity to the one now before us it is District of Kent v. Storgoff[10]. It is very much in point, and on this I differ from my brother Beetz. That case also involved a municipal by-law which was likewise passed as an exceptional measure; and the same expediency that is invoked here to support the By-law and s. 5 thereof was invoked there. Whittaker J. of the British Columbia Supreme Court did not yield to the expediency reflected in the by-law, although he sympathized with the municipality in its problem; and he pointed out, quite properly, that preventive measures were open under provisions of the Criminal Code relating to unlawful assemblies, to prevention of use of force and to power to arrest without warrant.

The by-law in the District of Kent case purported to prohibit members of a Doukhobor sect from entering the municipality which contained a prison where a large number of members were serving sentences. Fellow members, numbering about 1,000, were intending to march on the prison and had begun to do so from their homes about 400 miles away, and the by-law was passed as an emergency measure because of concern that the facilities of the municipality, with a population of 2,200, would be overtaxed so far at least as housing and sanitation were concerned, and there was also an apprehension of a breakdown of law and order. The by-law made it an offence punishable

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by a fine or imprisonment or both for a member of the sect to enter the municipality during the continuance of the emergency and they were liable, if they did so, to arrest without warrant.

Two passages from the reasons of Whittaker J. invalidating the by-law are so apposite here that I quote them, as follows, at p. 367 of the D.L.R. report:

It is true that in the preamble the by-law refers to anticipated problems of housing, education and health. Those are local problems, but the penalties imposed are not for the breach of any law relating to those subjects. The by-law is designed to prevent conditions arising which may lead to their breach. This is a laudable object, if it could be achieved by the exercise of powers within the jurisdiction of the municipality or the Province, but Kent has sought to meet the situation by the creation of a new crime. This is clearly beyond its powers.

The by-law is also designed to prevent conditions arising which may lead to a breach of the peace or unlawful assembly. These are matters relating to the criminal law and as such are within the exclusive legislative jurisdiction of the Parliament of Canada. Both are covered by the Criminal Code, 1953-54 (Can.), c. 51; breach of the peace by ss. 30 and 31, and unlawful assembly by s. 64.

There is more to be said for the validity of the by-law in the District of Kent case than there is for the validity of the one in the present case. There are here no considerations of health or sanitation or education but a naked concern for the public peace and about anticipated violence. The by-law is directed to these considerations and they are matters of criminal law alone. Of course, there can be only sympathetic regard for the ability of the police to handle violent demonstrators. I should have thought, however, that an internal instruction or memorandum of procedures to this end would have sufficed in invocation of the extensive police powers of arrest without warrant given by ss. 449 and 450 of the Criminal Code and of the power to deal with and disperse unlawful assemblies, given by ss. 64 to 69 of the Criminal Code. There are express supporting provisions in ss. 32 and 33 as well as general support in ss. 27 and 30. Any doubt

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about the actual encroachment of the By-law into the field of criminal law may easily be resolved by comparing s. 5 of the By-law with ss. 27 and 68 of the Criminal Code, s. 6 of the By-law with s. 69(b)(c) of the Criminal Code, and s. 7 of the By-law with ss. 66 and 67 of the Criminal Code.

There is a distasteful part of the challenged By-law and Ordinance which, surprisingly, appears to be relied on to support their validity. The prohibition of assemblies or gatherings is not limited to those from which disorder or violence is anticipated but extends to all assemblies, all gatherings for the prescribed thirty-day period. I am unable to appreciate how this gives credence to the By-law as a local measure. We are left in no doubt here as to the scope of operation of the By-law. In Saumur v. City of Quebec[11], Kellock J. noted that the challenged by-law there was “not to be judged from the standpoint of matters to which it might be limited but upon the completely general terms in which it in fact is couched” (at p. 339). Here, persons who might seek to associate or gather for innocent purposes are to be barred, not because of any problem as to whether certain public areas should be open at certain times or on certain days or occasions—all of which go to their ordinary regulation—but because of a desire to forestall the violent or the likely violent. This is the invocation of a doctrine which should alarm free citizens even if it were invoked and applied under the authority of the Parliament of Canada, which has very wide power to enact criminal law. To find it invoked by a delegated authority like a municipality, which is limited at the outside to those powers that are open to a Province, appears to me to be an aggravation of its intrusion into the field of criminal law.

Certainly, enforcement of the criminal law is often difficult, and where large numbers of persons may be involved the difficulties are compounded. Yet it has always been central to our criminal law that the police are expected to enforce it against violators and not against innocents, and to exercise a reasonable and honest judgment as to those who are in each of these classifications. What can be

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more draconian than for a municipality to ignore the distinction and then to insist that it is not legislating in relation to crime or criminal law when its prime purpose is to forestall anticipated breaches of the peace and to deal with unlawful assemblies and riots!

The By-law goes much beyond what was invalidated in Henry Birks & Sons Ltd. v. City of Montreal[12] and in Switzman v. Elbling[13]. Of course, those cases relate to other factual issues but they reflect the scope of the federal criminal law power even in situations where there is a connection—found there to be too tenuous to support the challenged provisions—with the regulation of commercial establishments and the use of private premises.

I see nothing in Bédard v. Dawson[14], to give any support to the By-law. It has been overtaken by later cases such as Johnson v. Attorney General of Alberta, supra, and Switzman v. Elbling, supra, and even if it still has any vitality, its rationale relates to the suppression of a nuisance, a matter pertaining to the enjoyment of private premises. The By-law here has nothing to do with private nuisances but only with conduct and anticipated conduct of persons in streets and public parks.

I would allow the appeal, set aside the judgment below and restore the order at trial declaring the By-law and the Ordinance ultra vires. It is clear that if s. 5 goes, ss. 6 and 7 of the By-law must also fall, and so too must s. 4. This effectively denudes the By-law of any substance.

I would give the appellant Claire Dupond her costs throughout against the City of Montreal, but there should be no costs to or against the Attorney General of Quebec or the Attorney General of Canada.

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The judgment of Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ. was delivered by

BEETZ J.—Appellant Claire Dupond has attacked the constitutional validity of the City of Montreal By-law 3926 and of Ordinance no. 1 passed by the Executive Committee of the City pursuant to s. 5 of that By-law. She did so under s. 515 of the Charter of the City of Montreal (Q.S. 1959-60, c. 102) which provides that any ratepayer, by petition in his own name presented to the Superior Court, may demand the annulment of any by-law on the ground of illegality. The Attorney General for Quebec and the Attorney General for Canada were impleaded as third parties and participated in the proceedings throughout, the first to support the validity of the By-law and of the Ordinance and the second to oppose it. The trial judge having declared the By-law and the Ordinance unconstitutional, the City of Montreal and the Attorney General for Quebec both appealed to the Quebec Court of Appeal. In separate judgments on each appeal, the Court of Appeal set aside the judgment at trial and dismissed Claire Dupond’s petition. These are the judgments separately appealed from by the Attorney General for Canada and Claire Dupond. The Attorney General for Ontario and the Attorney General for Alberta were granted leave to intervene but only the Attorney General for Alberta did in fact intervene; he supported the validity of the By-law and of the Ordinance.

By-law 3926 reads as follows:

By-law relating to exceptional measures to safeguard the free exercise of civil liberties, to regulate the use of the public domain and to prevent riots and other violations of order, peace and public safety.

At the meeting of the Council of the City of Montreal held on November 12, 1969, Council ordained:

WHEREAS it is imperative to provide for the protection of citizens in the exercise of their liberties, safeguard public peace and prevent violence against persons and property:

WHEREAS violence, armed robberies and other criminal acts often accompany certain demonstrations;

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WHEREAS it is in order to enact exceptional emergency measures for the protection of citizens and the maintenance of peace and public order;

WHEREAS it is in order to regulate the use of the public domain and safeguard the right of citizens to the peaceful enjoyment of the public domain of the City;

1.—Anyone is entitled to the use and enjoyment of the streets, public places and public domain of the City of Montreal untroubled and in peace and public order.

2.—Assemblies, parades or other gatherings that endanger tranquility, safety, peace or public order are prohibited in public places and thoroughfares, parks or other areas of the City’s public domain.

3.—No person participating in or present at an assembly, parade or other gathering on the public domain of the City shall molest or jostle anyone, or act in any way so as to hamper the movement, progress or presence of other citizens also using the public domain of the City on that occasion.

4.—Any assembly, parade or gathering on the public domain which gives rise to a violation against any article of this by-law, or to any acts, behaviour or utterances which disturb the peace or public order shall ipso facto be an assembly, parade or gathering which endangers tranquility, safety, peace or public order under the terms of Article 2 of this by-law, and shall disperse forthwith.

5.—When there are reasonable grounds to believe that the holding of assemblies, parades or gatherings will cause tumult, endanger safety, peace or public order or give rise to such acts, on report of the Directors of the Police Department and of the Law Department of the City that an exceptional situation warrants preventive measures to safeguard peace or public order, the Executive Committee may, by ordinance, take measures to prevent or suppress such danger by prohibiting for the period that it shall determine, at all times or at the hours it shall set, on all or part of the public domain of the City, the holding of any or all assemblies, parades or gatherings.

6.—All persons shall immediately obey the order of a peace officer to leave the scene of any assembly, parade or gathering held on violation of this by-law.

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7.—Whoever participates in an assembly, parade or gathering held in violation of this by-law or otherwise contravenes, in any way, any provision of this by-law, shall be liable to either imprisonment or a fine, with or without costs, for the term or the amount that the Municipal Court of Montreal will determine, at its discretion, and failing the immediate payment of such fine, or such fine and costs, as the case may be, to imprisonment for a term to be determined by the said Municipal Court, at its discretion; the imprisonment for failure to pay the fine or costs shall cease at any time before expiry of the term determined by the Court, upon payment of the fine or of the fine and costs, as the case may be.

Such imprisonment shall not exceed sixty (60) days nor such fine one hundred (100) dollars.

The Ordinance passed by the Executive Committee of the City pursuant to s. 5 of the By-law reads as follows:

Under by-law 3926 relating to exceptional measures to safeguard the free exercise of civil liberties, to regulate the use of the public domain and to prevent riots and other violations of order, peace and public safety.

At the meeting of the Executive Committee of the City of Montreal held on November 12, 1969 (no. 38961)

The Executive Committee ordained:

ORDINANCE TO PROHIBIT THE HOLDING OF ANY ASSEMBLY, PARADE OR GATHERING ON THE PUBLIC DOMAIN OF THE CITY OF MONTREAL FOR A TIME-PERIOD OF 30 DAYS.

CONSIDERING the reports from the Directors of the Police Department and of the Law Department of the City of Montreal attached hereto as an integral part of these presents;

CONSIDERING there are reasonable grounds to believe that the holding of assemblies, parades or gatherings on the public domain of the City would endanger the safety, peace or public order might give rise to such danger;

CONSIDERING the exceptional situation prevailing in the City of Montreal and the need to take preventive measures to safeguard peace and public order.

The holding of any assembly, parade or gathering anywhere and at any time on the public domain of the City is prohibited for a time-period of thirty (30) days to

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end the thirteenth (13th) day of December 1969 at midnight, except for the parades already authorized by the Director of the Police Department under By-law 1319 dealing with traffic, before the adoption of this ordinance, and provided such parades do not endanger tranquility, peace and public order.

                                      Police Department
                                      Office of the Director

               Date: November 12, 1969

To:   Mr. Lucien Saulnier
Chairman of the
Executive Committee
City of Montreal

From:    Mr. J.-P. Gilbert
Director of the
Police Department
City of Montreal

Subject:

demonstrations and parades

1) Since the beginning of 1969, 97 demonstrations have been held in Montreal, 21 of which have taken place from early October up to this date.

2) Some of these demonstrations have drawn several thousand demonstrators which we have had to control.

3) It should be noted that the demonstrations mentioned above do not include parades held for religious, ethnic, commercial or sports purposes, where we are called upon to maintain order.

4) On four occasions, since October 1, 1969, we have had to call on duty more than eight hundred (800) policemen on the occasion of demonstrations.

5) Demonstrations for all types of causes or purposes have increased to such an extent that, on an average yearly basis, we set at 20% the number of Montreal Police Department men/day needed to control such demonstrations.

6) In determining the cost of these demonstrations in terms of salaries paid to policemen on duty on such occasions, we have set an estimate of approximately $3,000 per hour in over-time pay.

7) In determining the cost at regular rates of the police forces assigned to the setting up of crowd-control systems and the carrying out of police operations at the time of the demonstrations, we have arrived at an estimated yearly cost of approximately $7,000,000 for the City.

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8) Attention should be drawn to the fact that, when a demonstration occurs, we must perforce reduce the normal amount of protection extended by us to other areas, so as to concentrate most of our forces at the site of the demonstration. This can only benefit crime throughout the metropolis.

9) Moreover, in the past two months, demonstrations have increased both in frequency and in the number of participants involved.

10) We note that such demonstrations are accompanied increasingly by violence, vandalism and looting.

11) Considerable damage has been inflicted on a great number of commercial establishments in the course of such demonstrations.

12) The experience of recent demonstrations has shown that many agitators, usually the same ones, infiltrate a large crowd in order to throw various missiles—Molotov cocktails, for instance—from within such crowds, or otherwise to disturb the peace or endanger persons or property, while it is extremely difficult to identify and restrain such agitators soon enough.

13) The present climate of social unrest and the frequency of demonstrations, as characterized above, make it impossible to guarantee within reasonable limits that the holding of assemblies, parades or gatherings within the City of Montreal can take place at this time without the occurrence of violence against either persons or property or without an increase in the number of armed robberies and major crimes when police personnel is assigned to demonstration duty;

14) We therefore have reasonable ground to believe that within the next 30 days, the holding of assemblies, parades or gatherings can only endanger public safety, peace and order and provide opportunities for the perpetration of serious criminal offences or of acts seriously disturbing public safety, peace and order;

15) We therefore feel it our duty to recommend that preventive steps be taken to protect civil liberties and safeguard public peace and order and, consequently, we recommend that the Executive Committee, pursuant to the powers it holds under the by-law prohibiting demonstrations on the City’s public domain, forbid for 30 days the holding of any and all assemblies, parades or gatherings, of

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any type whatsoever everywhere on the City’s public domain, excepting those events already authorized by the Director of the Police Department of the City of Montreal.

We recommend that our report be submitted to the Chief Attorney for the drafting of the required ordinance and of any report he must make pursuant to the provisions of the by-law referred to above.

                           Law Office

               Date: November 12, 1969

To:   Chairman and
Members of the
Executive Committee
City Hall

and

         Mr. Maurice Farley,
Executive Secretary of the City
City Hall

From: Mr. Michel Côté,
Chief Attorney,
Law Office.

Subject: Recommendation for the adoption of an ordinance prohibiting any demonstrations for thirty days on the public domain—By-law concerning demonstrations on the public domain.

Gentlemen:

Following the adoption of the by-law concerning demonstrations on the City’s public domain, we have received and examined a report dated November 12, 1969, from the Director of the Police Department, Mr. Jean-Paul Gilbert, recommending that, pursuant to the above-mentioned by-law, an ordinance be adopted prohibiting for thirty (30) days all demonstrations on the public domain.

In view of the many demonstrations which are expected to take place or have been publicly announced for the coming days, and in view of the facts set forth in the report of the Director of the Police Department, Mr. Jean-Paul Gilbert, we find that we must concur with his conclusion that a special situation exists in Montreal, that there is reasonable ground to believe that the holding of assemblies, parades and gatherings will endanger public safety, peace and order, cause tumult or give rise to such acts, and that it is therefore in order to take preventive steps to safeguard public peace and order. We therefore recommend jointly with the Director of the Police Department, Mr. Jean-Paul Gilbert, that the Excutive Committee prohibit, by ordinance, the hold-

[Page 788]

ing of any and all assemblies, parades or gatherings, anywhere and all times on the public domain of the City of Montreal, for a thirty (30) day period to end on the thirteenth (13th) day of December 1969, at midnight, excepting those parades which had already been authorized in accordance with By-law 1319 concerning traffic by the Director of the Police Department, Mr. Jean-Paul Gilbert, prior to the adoption of this ordinance and providing that they take place in tranquility, peace and public order.

We recommend that the form and wording of the said ordinance be the same as those of the draft ordinance attached hereto.

Hoping that you will find the whole in order, we remain.

                                                                                 Sincerely yours,

                                                                                 Chief Attorney,
                                                                                 Michel Côté.

The only evidence tendered at trial was the brief testimony of Claire Dupond that she is a ratepayer of the City of Montreal and a Canadian citizen.

There is in the case no factual background except what is mentioned in the reports of the Directors of the Police Department and of the Law Department of the City of Montreal attached to Ordinance no. 1 and quoted above. The facts recited in those reports have not been disputed. They must be taken to be true. It was conceded at the hearing that Ordinance no. 1 was enacted on account of those facts.

The submissions made against the constitutional validity of the By-law and of the Ordinance may be summarized as follows:

1. They are in relation to criminal law and ultra vires of the City of Montreal and of the provincial legislature;

2. They are in relation to and in conflict with the fundamental freedoms of speech, of assembly and association, of the press and of religion which are made part of the Constitution by the preamble of the British North America Act, 1867, or which come under federal jurisdiction and are protected by the Canadian Bill of Rights.

In her factum, Claire Dupond made further submissions to the effect that, under the City

[Page 789]

Charter, leaving aside the constitutional question, the Ordinance was ultra vires of the Executive Committee and that the By-law was ultra vires of the City Council. These submissions were not made in oral argument. For this reason, when counsel for the City of Montreal stated that he proposed to answer them, he was informed by the Court that he did not have to meet these points unless they were raised, and they were not. Since they were not argued in this Court nor discussed by the courts below, I will refrain from commenting upon them and assume that the By-law and the Ordinance are intra vires from an administrative law point of view in order to limit my reasons to the two constitutional law submissions.

The trial judge, Trépanier J., whose judgment is unreported, found some overlapping between s. 2, 3 and 5 of the By-law and several provisions of the Criminal Code. He came to the conclusion that s. 5 of the By-law creates a new offense intended to supplement the Criminal Code and was accordingly ultra vires as being in relation to criminal law. Since it was unlikely in his view that the City Council would have enacted the By-law without s. 5, he declared the By-law entirely void, together with the Ordinance. (A judge of the Social Welfare Court had reached a similar result on somewhat broader grounds with respect to the same By-law in La Ville de Montréal c. X[15]; this last judgment was apparently appealed from, although we do not know the outcome, if any; it would appear also that some unreported decisions of the Montreal Municipal Court have held the By-law and the Ordinance to be intra vires).

The Court of Appeal (Lajoie J.A. speaking for himself and for Owen, Brossard, Turgeon and Bélanger JJ.A.) unanimously held that the By-law and the Ordinance were intra vires: it characterized the By-law and the Ordinance as local police regulations the essential purpose of which was to secure to the inhabitants of the City the free and peaceful enjoyment of the municipal public domain; as to the Canadian Bill of Rights it was

[Page 790]

pointed out that it does not apply to provincial and municipal legislation: [1974] C.A. 402.

In this Court, while the constitutionality of each section of the By-law was briefly debated, the attack was focused on s. 5 and on the Ordinance. Severability was discussed. In answer to questions, counsel for Claire Dupond stated that the latter, who has initiated the whole proceeding, was interested only in having the Ordinance and s. 5 of the By-law declared ultra vire; the other provisions of the By-law were of no concern to her.

It is clear to me that such a statement amounts to a discontinuance of Claire Dupond’s petition in so far as that petition attacked sections of the By-law other than s. 5.

Counsel for the Attorney General for Canada, the other appellant, conceded that s. 5 is operationally severable.

Furthermore, while I agree with the trial judge that the City Council was unlikely to have passed the impugned By-law without s. 5, in my view, the converse is not true: the very title of the By-law as well as the third paragraph of the preamble refer to the exceptional or emergency measures contemplated only by s. 5; the other paragraphs of the preamble are applicable to s. 5 as well as to other sections; finally, it is manifest that the By-law is operational without ss. 1, 2, 3 and 4.

Given those circumstances, I should limit my reasons for judgment to the constitutional validity of s. 5 and of ancillary ss. 6 and 7: as I understand the situation, there is no longer any lis between Claire Dupond and the City of Montreal with respect to ss. 1, 2, 3 and 4 of the By-law. The impleading of the Attorney General for Canada and of the Attorney General for Quebec and the subsequent intervention of the Attorney General for Alberta do not turn this case into a constitutional reference.

[Page 791]

II

In Hodge v. The Queen[16], the Judicial Committee of the Privy Council upheld the constitutional validity of the Ontario Liquor License Act of 1877 and of regulations enacted pursuant to that Act. At page 131, the Judicial Committee referred to those regulations as

regulations in the nature of police or municipal regulations of a merely local character …and such as are calculated to preserve in the municipality, peace …and repress… disorderly and riotous conduct,

I could not find a better description to characterize s. 5 of the By-law and the Ordinance. They are on their face regulations of a merely local character. The Ordinance was passed for reasons peculiar to the City of Montreal at the relevant time. Both s. 5 and the Ordinance relate to the use of the municipal public domain in exceptional circumstances when there are reasonable grounds to believe that the holding of assemblies, parades or gatherings in the streets, parks and other parts of the public domain will endanger safety, peace or public order. These are not punitive but essentially preventive measures, the purpose and effect of which is the prevention of conditions conducive to breaches of the peace and detrimental to the administration of justice. This preventive character is illustrated by the fact that the Ordinance prohibits the holding on the public domain of any assembly, parade or gathering, including those of the most innocent and innocuous kind. The temporary nature of the Ordinance and of any ordinance which could be passed pursuant to s. 5 is also indicative of the preventive aspect of this legislative scheme.

In Reference re the Adoption Act[17], Sir Lyman Duff wrote, at p. 403:

…while as subject matter of legislation, the criminal law is entrusted to the Dominion Parliament, responsibility for the administration of justice and, broadly speaking, for the policing of the country, the execution of the criminal law, the suppression of crime and disorder, has from the beginning of Confederation been recognized as the responsibility of the provinces and has been discharged at great cost to the people; so also, the provinces, sometimes acting directly, sometimes through

[Page 792]

the municipalities, have assumed responsibility for controlling social conditions having a tendency to encourage vice and crime.

It is now well established that the suppression of conditions likely to favour the commission of crimes falls within provincial competence: Bédard v. Dawson[18]; Di lorio v. Warden of the Montreal Jail[19].

It would be an over-simplification to say that ordinances which may be passed under s. 5 are purely prohibitory: demonstrations can be restricted to certain areas of the municipal public domain, to certain times of the day or the night, to certain types of assemblies, parades or gatherings; that is why, in spite of the prohibitory form of the ordinances, s. 5 can be said to be, in substances, regulatory of the use of the public domain as the by-law held intra vires by McRuer C.J.H.C. in R. v. Campbell[20].

However, I would not hesitate to uphold the validity of ordinances comtemplated by s. 5 even if they were strictly prohibitory:

A provincial enactment does not become a matter of criminal law merely because it consists of a prohibition and makes it an offense for failure to observe the prohibition; …

(per Judson J. in O’Grady v. Sparling[21], at p. 810).

Im my view, the impugned enactments relate to a matter of a merely local nature in the Province within the meaning of s. 92(16) of the Constitution. Bearing in mind that the other heads of power enumerated in s. 92 are illustrative of the general power of the Province to make laws in relation to all matters of a merely local or private nature in the Province, I am of the opinion that the impugned enactments also derive constitutional validity from heads (8), (13), (14) and (15) of s. 92.

[Page 793]

Re Race Track and Betting[22], a judgment of the Ontario Court of Appeal, and District of Kent v. Storgoff[23], a judgment of Whittaker J. of the British Columbia Supreme Court were cited to us as persuasive authorities to the effect that s. 5 of the By-law and the Ordinance are ultra vires. These cases dealt with different situations and I think it better not to discuss them in order to avoid going further than necessary for the decision of the case at hand. Johnson v. Attorney General of Alberta[24], was also cited. It is entirely distinguishable: a province had added a sanction to an offense already dealt with in the Criminal Code.

III

When an enactment is in itself of a local or private nature, the onus of showing that it otherwise comes within one or more of the classes of subjects enumerated in s. 91 falls upon the party so asserting: L’Union St-Jacques de Montréal v. Bélisle[25], at p. 36. Appellants have tried to discharge the onus by submitting that s. 5 of the By-law and the Ordinance relate to criminal law.

One line of argument was that the impugned enactments are anti-riot measures dealing with a field already covered by ss. 64 to 70 of the Criminal Code and that their essential purpose is to supplement what was thought to be a lacuna in the Code.

I do not agree that s. 5 and the Ordinance deal with the same subject matter as the Code, under the same aspect and for the same purpose. They differ in more than one way but the main difference is as follows: the Criminal Code forbids unlawful assemblies and riots and provides for the punishment of these offenses once they have been committed; it also compels a justice, mayor or sheriff to command, in Her Majesty’s name, the dispersion of an unlawful assembly which has already begun to disturb the peace tumultuously; s. 5 and the Ordinance on the other hand are

[Page 794]

aimed at preventing assemblies, parades and gatherings which have not yet taken place. There are in the Code no preventive measures similar to s. 5 of the By-law. Counsel for the Attorney General for Canada readily conceded this; his point was that Parliament could enact a measure such as s. 5 of the By-law, and moreover, that only Parliament could do so.

It may be that Parliament could enact measures of a preventive nature under its ancillary powers. But we are not concerned in this case with the outer limits of federal jurisdiction over criminal law and I fail to see how the fact that Parliament has not exercised a possible incidental power should sterilize provincial legislative competence and prevent a province or a city from exercising their own powers. And, in the exercise of their own powers, the provinces may constitutionally complement federal legislation. The reports are replete with cases where provincial legislation complementary to federal legislation was upheld as long as it did not collide with the latter: Provincial Secretary of Prince Edward Island v. Egan[26]; Validity of Section 92(4) of the Vehicles Act, 1957 (Sask.)[27]; Smith v. The Queen[28]; O’Grady v. Sparling, (supra); Stephens v. The Queen[29]; Lieberman v. The Queen[30]; Fawcett v. Attorney General for Ontario[31]; Mann v. The Queen[32].

This part of appellants’ first submission must fail.

The second line of argument with respect to appellants’ first submission is that s. 5 of the By-law and the Ordinance are ultra vires under the doctrine of Saumur v. City of Quebec[33], Henry Birks and Sons Ltd. v. City of Montreal[34] and Switzman v. Elbling[35].

[Page 795]

I cannot see anything in the Ordinance which interferes with freedom of religion, of the press or of speech, or which imposes religious observances, in such a way as to bring the matter within the criminal law power of Parliament. The Ordinance prohibits the holding of all assemblies, parades or gatherings for a time period of thirty days, irrespective of religion, ideology or political views. It does so for the reasons given in the reports of the Director of the Police Department and of the Chief Attorney of the City; the reasons have nothing to do with those for which provincial enactments were invalidated in the Saumur, Birks and Switzman cases.

Furthermore, the discretionary power to pass an Ordinance under s. 5 of the By-law is not an uncontrollable discretion given to a municipal officer, as was the case in Saumur: it is vested in the Executive Committee of the City; it cannot be exercised except on report of the Directors of the Police Department and of the Law Department of the City; this report must give reasons why an ordinance should be passed; these reasons must be up to the standard contemplated in the preamble of the By-law and in s. 5, that is, an exceptional emergency situation must have arisen which warrants the enactment of preventive measures; finally, the prohibition must be limited in time to the period determined by the Executive Committee; it must be temporary for by their very nature exceptional emergency measures cannot be permanent.

Should the discretionary power vested in the Executive Committee by s. 5 be exercised for unconstitutional purposes, or should it simply be exercised unreasonably, judicial review would be available.

I should add that, under the City Charter, the Executive Committee is not an irresponsible body and that the media are in no way muzzled by the enactment of an ordinance.

This part of the first submission must also fail.

[Page 796]

IV

The second submission against the constitutionality of s. 5 and of the Ordinance was that they are in relation to and in conflict with the fundamental freedoms of speech, of assembly and association, of the press and of religion which were inherited from the United Kingdom and made part of the Constitution by the preamble of the British North America Act, 1867, or which come under federal jurisdiction and are protected by the Canadian Bill of Rights. The Reference re Alberta Statutes[36] was relied upon.

I find it exceedingly difficult to deal with a submission couched in such general terms. What is it that distinguishes a right from a freedom and a fundamental freedom from a freedom which is not fundamental? Is there a correlation between freedom of speech and freedom of assembly on the one hand and, on the other, the right, if any, to hold a public meeting on a highway or in a park as opposed to a meeting open to the public on private land? How like or unlike each other are an assembly, a parade, a gathering, a demonstration, a procession? Modern parlance has fostered loose language upon lawyers. As was said by Sir Ivor Jennings, the English at least have no written constitution and so they may divide their law logically. (W. Ivor Jennings, “The Right of Assembly in England”, (1931-32), 9 New York University Law Quarterly Review, 217.)

I am afraid I cannot avoid answering in kind appellants’ submission. I believe I can state my position in a relatively small number of propositions which require little or no development for, difficult as it is at this level of abstraction, I must try not to say more than is necessary to dispose of the submission:

1. None of the freedoms referred to is so enshrined in the Constitution as to be above the reach of competent legislation.

2. None of those freedoms is a single matter coming within exclusive federal or provincial

[Page 797]

competence. Each of them is an aggregate of several matters which, depending on the aspect, come within federal or provincial competence.

(This proposition is postulated in s. 5(3) of An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms of which The Canadian Bill of Rights constitutes Part I.)

3. Freedoms of speech, of assembly and association, of the press and of religion are distinct and independent of the faculty of holding assemblies, parades, gatherings, demonstrations or processions on the public domain of a city. This is particularly so with respect to freedom of speech and freedom of the press as considered in the Reference re Alberta Statutes (supra). Demonstrations are not a form of speech but of collective action. They are of the nature of a display of force rather than of that of an appeal to reason; their inarticulateness prevents them from becoming part of language and from reaching the level of discourse.

4. The right to hold public meetings on a highway or in a park is unknown to English law. Far from being the object of a right, the holding of a public meeting on a street or in a park may constitute a trespass against the urban authority in whom the ownership of the street is vested even though no one is obstructed and no injury is done; it may also amount to a nuisance: A.L. Goodhart, “Public Meetings and Processions” (1937), VI Cambridge Law Journal, 161; W. Ivor Jennings, op. cit.; E.C. 5. Wade, “Police Powers and Public Meetings”, (1937), VI Cambridge Law Journal 175; André Jodouin, “La liberté de manifester”, (1970), Vol. 1, Revue Générale de Droit, U. of Ottawa, 9. The state of English law is perhaps best summarized in a well known dictum of that great English judge, Wills J., in Ex parte Lewis[37], at p. 197:

A claim on the part of persons so minded to assemble in any numbers, and for so long a time as they please to remain assembled, upon a highway, to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage, and there is, so far as we

[Page 798]

have been able to ascertain, no authority whatever in favour of it. It was urged that the right of public meeting, and the right of occupying any unoccupied land or highway that might seem appropriate to those of her Majesty’s subjects who wish to meet there, were, if not synonymous, at least correlative. We fail to appreciate the argument, nor are we at all impressed with the serious consequences which it was said would follow from a contrary view. There has been no difficulty experienced in the past, and we anticipate none in the future, when the only and legitimate object is public discussion, and no ulterior and injurious results are likely to happen. Things are done every day, in every part of the kingdom, without let or hindrance, which there is not and cannot be a legal right to do, and not unfrequently are submitted to with a good grace because they are in their nature incapable, by whatever amount of user, of growing into a right.

Being unknown to English law, the right to hold public meetings on the public domain of a city did not become part of the Canadian Constitution under the preamble of the British North America Act, 1867.

5. The holding of assemblies, parades or gatherings on the public domain is a matter which, depending on the aspect, comes under federal or provincial competence and falls to be governed by federal and provincial legislation such as the Criminal Code, laws relating to picketing, civil laws, municipal regulations and the like including s. 5 of the impugned By-law and the Ordinance passed pursuant to it.

6. The Canadian Bill of Rights, assuming it has anything to do with the holding of assemblies, parades or gatherings on the public domain, does not apply to provincial and municipal legislation.

Appellants’ second submission must also fail.

I would therefore dismiss both appeals.

This is not a case for costs.

Appeal dismissed, LASKIN C.J. and SPENCE and DICKSON JJ. dissenting.

Solicitor for the appellant, the Attorney General for Canada: Paul Ollivier, Ottawa.

[Page 799]

Solicitor for the appellant, Claire Dupond: Gaétan Robert, Montreal.

Solicitors for the respondent, the City of Montreal: Péloquin, Bouchard, Badeaux & Allard, Montreal

Solicitors for the respondent, the Attorney General for Quebec: Pouliot, Dion & Guilbeault, Montreal.

Solicitor for the intervenant: William Henkel, Edmonton.

 



[1] [1974] C.A. 402.

[2] (1883), 9 A.C. 117.

[3] [1902] A.C. 73.

[4] [1896] A.C. 88.

[5] [1899] A.C. 580.

[6] [1960] S.C.R. 804.

[7] [1966] S.C.R. 238.

[8] [1954] S.C.R. 127.

[9] [1941] 1 D.L.R. 548.

[10] (1962), 38 D.L.R. (2d) 362.

[11] [1953] 2 S.C.R. 299.

[12] [1955] S.C.R. 799.

[13] [1957] S.C.R. 285.

[14] [1923] S.C.R. 681.

[15] [1970] R.L. 276.

[16] (1883), 9 A.C 117.

[17] [1938] S.C.R. 398.

[18] [1923] S.C.R. 681.

[19] [1978] 1 S.C.R. 15; 73 D.L.R. (3d) 491.

[20] [1962] O.R. 1134.

[21] [1960] S.C.R. 804.

[22] (1921), 61 D.L.R. 504.

[23] (1962), 38 D.L.R. (2d) 362.

[24] [1954] S.C.R. 127.

[25] [1874], L.R. 6 P.C. 31.

[26] [1941] S.C.R. 396.

[27] [1958] S.C.R. 608.

[28] [1960] S.C.R. 776.

[29] [1960] S.C.R. 823.

[30] [1963] S.C.R. 643.

[31] [1964] S.C.R. 625.

[32] [1966] S.C.R. 238.

[33] [1953] 2 S.C.R. 299.

[34] [1955] S.C.R. 799.

[35] [1957] S.C.R. 285.

[36] [1938] S.C.R. 100.

[37] (1888), 21 Q.B.D. 191.

 

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