Supreme Court Judgments

SUPREME COURT OF CANADA

Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662

Date: 1978-01-19

The Nova Scotia Board of Censors (also known as the Amusements Regulation Board of Nova Scotia)

and

The Attorney General in and for the Province of Nova Scotia Appellants;

and

Gerard McNeil Respondent.

1977: May 24, 25; 1978: January 19.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION

Constitutional law — Provincial regulatory statute — Legislative authority — Censorship — Films and theatrical performances — Presumption of validity of provincial statute — Essential nature of statute — Theatres and Amusements Act, R.S.N.S. 1967, c. 304 — British North America Act, 1867, ss. 91(27), 92(13), (16).

Civil rights — Fundamental freedoms — Power of legislature to determine in light of local standards what is fit for viewing on moral grounds — Theatres and Amusements Act, R.S.N.S. 1967, c. 304 — British North America Act, 1867, ss. 91(27), 92(13), (16).

The respondent had become concerned about the wide powers of the Nova Scotia Board of Censors (also known as the Amusements Regulation Board of Nova Scotia) and, after the Board, in exercising the authority which the Theatres and Amusements Act, R.S.N.S. 1967, c. 304, purported to confer on the Board, prevented the film "Last Tango in Paris" from being exhibited in the theatres of Nova Scotia, the respondent made application for a declaration that certain sections of the Act as amended and certain regulations made thereunder were ultra vires and beyond the legislative compe­tence of the Province of Nova Scotia. Respondent's standing to take the proceedings was confirmed (see [1976] 2 S.C.R. 265). The challenge was to the statutory provisions purporting to authorize the Board to regulate and control the film industry within the Prov­ince of Nova Scotia according to standards fixed by the Board, on the ground that citizens of Nova Scotia are thereby denied, on moral grounds, their right to exercise

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their freedom of choice in the viewing of films and theatre performances which might otherwise be available to them. 1t was also alleged that the legislation constituted an invasion of fundamental freedoms. The questions raised on the application were reserved for the consideration of the Appeal Division, which granted the application by declaring "that the word 'prohibiting' in Sections 2(1)(b) and 2(1)(g) and subsections (2) and (3) of Section 3" of the Act and "that regulations 4, 5(1), 13, 18 and 32 made pursuant to" the Act were null and void and of no effect being ultra vires the legislature of Nova Scotia.

Held (Laskin C.J. and Judson, Spence and Dickson JJ. dissenting): The appeal should be allowed.

Per Martland, Ritchie, Pigeon, Beetz and de Grandpré JJ.: The Court cannot ignore the rule that any question as to the validity of provincial legislation is to be approached on the assumption that it was validly enacted. The Act and Regulations read as a whole were primarily directed to the regulation, supervision and control of the film business within the Province of Nova Scotia and the impugned provisions were enacted to reinforce the authority of the Board to perform that regulatory task which included the authority to prevent the exhibition of films which the Board, applying its own local standards, considers as unsuitable for viewing by provincial audiences. The impugned legislation was con­cerned with dealings in and the use of property (in this case films) wholly within the Province and constituted nothing more than the exercise of provincial authority over transactions wholly within the Province, i.e. the "regulating, exhibition, sale and exchange of films" irrespective of the origin of those films. Morality and criminality are not to be regarded as co-extensive. The impugned legislation was not concerned with criminality as such i.e. the creation of a criminal offence per se but rather in regulating a business within the province so as to prevent exhibitions which did not comply with the standards of propriety established by the Board. Its true object, purpose, nature and character was the regulation of a local trade. The legislation had a valid provincial purpose and therefore was valid.

That is not to say that Parliament is in any way restricted in its authority to pass laws penalizing immor­al acts or conduct but simply that the provincial legisla­ture in regulating a local trade may set its own stand­ards which in no sense exclude the operation of the federal law.

Regulations 4 and 5(1) which provide that no theatre owner shall permit the use of any unauthorized film or

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theatrical performance in his theatre, Reg. 13 which prohibits advertising a performance without the permis­sion of the Board, and Reg. 18 are of the same character as those considered in Quong Wing v. The King (1914), 49 S.C.R. 440 and therefore valid.

Regulation 32 is invalid as being virtually indistin­guishable from s. 159(2) of the Criminal Code, the use of the word "indecent" being the common factor. That Regulation is however clearly severable from the balance of the Regulations and the statute and it in no way detracts from, varies or curtails the authority vested in the Board under the statute.

The validity of the legislation might also be sustained by viewing the determination of what is and what is not acceptable for public exhibition on moral grounds as a matter of a "local and private nature in the Province" within the meaning of s. 92(16) of the B.N.A. Act, and, as this is not a matter coming within any of the enume­rated classes in s. 91, it is in a field in which the Legislature is free to act.

Having regard to the presumption of constitutional validity there was no basis for finding that the legisla­tion was invalid as infringing fundamental freedoms such as freedom of association, of assembly, of speech, of the press, of other media, of conscience or religion.

Per Laskin C.J. and Judson, Spence and Dickson JJ. dissenting: The Appeal Division invalidated certain provisions of the Act and the Regulations on the basis that they invaded exclusive federal power in relation to the criminal law. The Board had refused to sanction the showing of "Last Tango in Paris" and gave no reason for rejecting it and respondent had failed in his efforts to appeal the decision to the Governor in Council. An administrative authority like the Board, which is given unfettered and unguided power and discretion to prohib­it the public exhibition of a film, and whose statutory power is challenged as being unconstitutional, cannot shield its exercise of that power by refusing to disclose the grounds upon which it has acted. Such an adminis­trative authority must act in good faith, however wide its powers and regardless of the ambit of its discretion. Further, on the constitutional side, the validity of legis­lation (or a power given by legislation) is not to be judged from the standpoint of matters to which it might be limited, but upon the general terms in which it is in fact couched. In this case the issues before the Court did not engage the licensing authority of the Board, did not

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relate to any film classification system and were not concerned with the safety or suitability of premises. The Board asserted an unlimited statutory authority to determine for the general public what films were fit for viewing. There were no criteria set by the Act and no provision distinguishing or classifying films as being fit for viewing by adults but not by children. Only Reg. 32 purports to establish any criteria, namely "indecent or improper performance". Thus what was involved was the unqualified power of the Board to determine the fitness of films for public viewing on considerations which might extend beyond the moral and include the political, the social and the religious. At its narrowest, in this case the Board asserted authority to protect public morals and to safeguard the public from exposure to ideas and images in films that it regarded as morally offensive, indecent, or probably obscene. The determina­tion of what is decent or indecent or obscene in conduct or in a publication, what is morally fit for public viewing in films, art or in a live performance is, as such, within the exclusive power of the Parliament of Canada under its enumerated authority to legislate in relation to the criminal law. The contention that morality is not coex­tensive with the criminal law cannot of itself bring legislation respecting public morals within provincial competence. The federal power in relation to the crimi­nal law extends beyond control of morality and is wide enough to embrace antisocial conduct or behaviour.

It was not enough to save the provisions of the impugned legislation that they were part of a wider legislative scheme. The provisions in question went beyond the licensing provisions and engaged the public directly. The appeal should be dismissed and the impugned provisions held ultra vires.

[Severn v. The Queen (1878), 2 S.C.R. 70; Reference re The Farm Products Marketing Act, [1957] S.C.R. 198; Shannon v. Lower Mainland Dairy Products Board, [1938] A.C. 708; Home Oil Distributors Lim­ited v. A.G. of British Columbia, [1940] S.C.R. 444; Caloil Inc. v. Attorney General of Canada, [1971] S.C.R. 543; Lord's Day Alliance of Canada v. A.G. of British Columbia, [1959] S.C.R. 497; Proprietary Articles Trade Association v. Attorney-General of Canada, [1931] A.C. 310; Bédard v. Dawson, [1923] S.C.R. 681; O'Grady v. Sparling, [1960] S.C.R. 804; Smith v. The Queen, [1960] S.C.R. 776; Stephens v. The Queen, [1960] S.C.R. 823; Mann v. The Queen, [1966] S.C.R. 238;

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Quong Wing v. The King, (1914), 49 S.C.R. 440; Johnson v. Attorney General of Alberta, [1954] S.C.R. 127, referred to.]

APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1], to which consideration of questions raised by an application for a declaration were reserved by order of Hart J. made pursuant to s. 30(3) of the Judicature Act, 1972 (N.S.), c. 2, granting an Order declaring ultra vires certain sections of the Theatres and Amusements Act, R.S.N.S. 1967, c. 304, and cer­tain regulations made there under. Appeal allowed, Laskin C.J. and Judson, Spence and Dickson JJ. dissenting.

Donald G. Gibson and William M. Wilson for the appellants.

Robert Murrant, Dereck M. Jones and B. Mcl­saac for the respondent.

T. B. Smith, Q.C., and M. L. Basta for the intervenant Attorney General of Canada.

J. Polika for the intervenant Attorney General of Ontario.

Gil Rémillard and Anne Laberge for the intervenant Attorney General of Quebec.

Louis Lindholm, Q.C., and Paul Pearlman for the intervenant Attorney General of British Columbia.

Hugh Macintosh for the intervenant Attorney General of Prince Edward Island.

W. Kenkel, Q.C., for the intervenant Attorney General of Alberta.

E. J. Ratushny for the intervenant Canadian Civil Liberties Association.

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

THE CHIEF JUSTICE (dissenting)—The Attor­ney General of Nova Scotia appeals, with leave of this Court, from a judgment of the Appeal Divi­sion of the Nova Scotia Supreme Court declaring, by unanimous decision of the four members of the

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Appeal Division, that (1) it was ultra vires the Legislature of Nova Scotia to enact, by use of the word "prohibiting", s. 2(1)(b)(g) and s. 3(2)(3) of the Theatres and Amusements Act, R.S.N.S. 1967, c. 304, as amended, and (2) Regulations 4, 5(1), 13, 18 and 32, made pursuant to the Act were also ultra vires.

The issue in this appeal which gave rise to the declaration of invalidity was precipitated by the banning by the Amusements Regulation Board (a tribunal established under the aforementioned Act and known prior to May 15, 1972, as the Nova Scotia Board of Censors) of the film "Last Tango in Paris" from public viewing in theatres or other places in the Province. The ban was announced on or about January 8, 1974. No reasons were given for the prohibition and, indeed, it was one of the submissions of the Attorney General of Nova Scotia that reasons were not obligatory because there was no requirement under the Act or Regu­lations that the Board give reasons. The Attorneys General of Ontario, Quebec, British Columbia, Prince Edward Island and Alberta intervened to oppose the judgment in appeal and the Attorney General of Canada and the Canadian Civil Liberties Association intervened in support of the judgment.

In this Court, following the granting of leave to appeal, the constitutional question to be considered was formulated as follows by an order of June 4, 1976, amended by an order of July 5, 1976:

Are Sections 2(1)(b), 2(1)(g), 3(2) and 3(3) of the Theatres and Amusements Act, R.S.N.S., 1967 c, 304 and Regulations 4, 5(1), 13, 18 and 32 made under the provisions of that Act, intra vires the Legislature of Nova Scotia?

Provision for interventions was also made under the order.

The present case came before this Court earlier on the question of the plaintiffs standing to chal­lenge the constitutionality of the legislation under which the Amusements Regulation Board acted; and in sustaining the Courts below, which had rejected the challenge to the plaintiff's standing (see [1976] 2 S.C.R. 265) this Court noted that the Theatres and Amusements Act was not only a

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statute authorizing the licensing of theatres, film exchanges, cinematograph operators and appren­tices as well as theatre performances (including, by definition, moving picture performances or exhibitions) and envisaging too regulations in con­nection therewith, but it was also a statute operat­ing directly upon the public by empowering the Amusements Regulation Board to permit or pro­hibit the public exhibition of any film and any performance in any theatre. (The Act also pro­vided for an amusement tax payable by members of the public attending places of amusement but nothing turns on this feature of the Act.). The licensing power operated upon those engaged in the theatre business or in the film business or who worked as motion picture projectionists. As to them, s. 2(3) of the Act is explicit that "The Board may in its absolute discretion revoke or suspend any license issued under the authority of this Act or of the regulations". Whether the Board's licens­ing control is exercisable in terrorem with respect to any particular film which an exhibitor or theatre operator may wish to show for public viewing is not a question that arises here. Clearly, the Board's censorship authority, given by s. 3(2)(3) of the Act, is an overriding authority, and in this respect engages the interests of members of the public beyond the interests of exhibitors or theatre owners or operators as licensees under the Act.

The following are the provisions of the Act and Regulations which are relevant to the determina­tion of the constitutional question that arises in this case:

Provisions of the Act

1 In this Act,

(g) "performance" means any theatrical, vaude­ville, musical or moving picture performance or exhi­bition for public entertainment, or any other performance or exhibition for public entertainment, whether or not of the kind hereinbefore enumerated;

2 (1) The Governor in Council may from time to time make regulations for or in relation to or incidental to

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any one or more or to any part or parts of any one or more of the following matters:

(a) the licensing and regulating of theatres and places of amusement;

(b) regulating and licensing or prohibiting any performance or performances in a theatre or theatres, and any amusement or amusements or recreation or recreations in a place or places of amusement, and any amusement or amusements, recreation or recrea­tions for participating or indulging in which by the public or some of them, fees are charged by any amusement owner;

(c)  the construction, use, safety, inspection and supervision of theatres;

(d) the licensing, using and operating of cinemato­graphs;

(e) prescribing the terms and conditions under which cinematographs shall be operated;

(f) the licensing, operating and defining of film exchanges;

(g) prohibiting or regulating the exhibition, sale, lease, and exchange of films;

(h) the examining, regulating and licensing of cinematograph operators and apprentices;

(i) prescribing the terms and conditions under which films shall be exhibited, sold, leased and exchanged;

(j) prescribing the term or period during which any class of license shall be in force;

(k) prescribing and regulating the fees, including methods for ascertaining, calculating or determining the fees to be paid for licenses, and for examinations of cinematograph operators, and for examinations of films;

(l) prescribing by whom licenses shall be issued .. .

…

(3) The Board may in its absolute discretion revoke or suspend any license issued under the authority of this Act or of the regulations.

3 (1)...

(2) The Board shall have power to permit or to prohibit

(a) the use or exhibition in Nova Scotia or in any part or parts thereof for public entertainment of any film;

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(b) any performance in any theatre;

(c) any amusement in a place of amusement or any amusement or recreation for participating or indulg­ing in which by the public or some of them fees are charged by any amusement owner.

(3) Any power mentioned in subsection (2) may be exercised by the Board, notwithstanding that the Board has previously permitted the use or exhibition of the film, or that a license respecting the theatre is in force.

(4) There shall be an appeal from the Board to the person, body or court designated, and subject to the conditions prescribed by regulation of the Governor in Council.

…

8 Any person who violates this Act or who violates any of the regulations made under this Act, shall be liable to a penalty of not less than twenty dollars or more than two hundred dollars.

20 (1) Where the Board is satisfied after due inquiry that any film exchange or theatre owner has violated this Act or any regulations made hereunder the Board may:

(a) revoke or cancel any license of such film exchange; or

(b) revoke or cancel any license of such theatre owner; or

(c)  attach to any of such licenses such terms, con­ditions or restrictions as it deems advisable.

…

Provisions of the Regulations

…

2. An appeal from a decision of the Board shall be to the Governor in Council.

3. (1) No theatre owner shall give any performance in his theatre unless he holds in respect of the theatre a license which is in force.

4. No theatre owner shall permit any performance to be given in his theatre unless the same is authorized under the Regulations.

5. (1) No theatre owner shall permit the use or exhi­bition in his theatre of any film which has not been authorized by the Board.

13. No person shall advertise any performance unless the permission of the Board has first been obtained.

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16. (1) No 35 mm film exchange shall carry on business in the Province unless it holds a license which is in. force ..

18. (1) No film shall be used or exhibited in the Province unless the film has been submitted to the Board and the Board has authorized the use or exhibi­tion thereof.

(2) The Board may authorize or prohibit the use or exhibition of any film or may authorize the use of any film with such changes as it may direct. No film shall be so changed without the consent of the film exchange.

(3) The Board shall give a certificate in respect of every film which it has authorized for use or exhibition in the Province.

(4) The Board may at any time or from time to time re-examine any film and may prohibit the use or exhibi­tion of any film which it has previously authorized for use or exhibition or may permit its use or exhibition with such further changes as the Board may direct.

(5) No film exchange shall use, exhibit, sell, lease or exchange any film unless a certificate of the Board has been issued in respect thereof and any film which is used, exhibited, sold, leased or exchanged in violation of this regulation may be confiscated by the Board.

32. (1) No theatre owner or amusement owner shall permit any indecent or improper performance in his theatre or place of amusement.

(2) No performer shall take part in any indecent or improper performance.

(3) The Board may from time to time define what constitutes an indecent or improper performance within the meaning of these Regulations.

The ground upon which the members of the Appeal Division proceeded in invalidating certain provisions of the Act and Regulations was, simply stated, that they invaded exclusive federal power in relation to the criminal law. MacDonald J.A., who delivered the principal set of reasons, noted that the Appeal Division was sitting as a Court of first instance by reason of a reference of the constitutional issue to it by Hart J. pursuant to s. 30(3) of the Judicature Act, 1972 (N.S.), c. 2. Factually the situation was that the Board had refused to sanction the showing of the film "Last Tango in Paris"; that it gave no reason for rejecting

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it and the plaintiff failed in his efforts to appeal the decision to the Governor in Council. The learned Justice of Appeal said in his reasons that "it appears to be common ground between the parties that the Board has never given reasons for prohibiting the showing of any film nor has the Board ever publicly stated the guidelines, if any, it follows in considering films". He noted that there were statutory criteria in comparable legislation in other Provinces, these being (as he said) "of the usual 'sex, morals and violence' type that are normally associated with film censorship"; however, in the present case, "the censorship criterion, being left to the Board to determine, could be much wider and encompass political, religious and other matters".

Cooper J.A. was of the opinion that it was clear from the material before the Court that the film was placed in the rejected classification because it was considered by the Board to offend against acceptable standards of morality. The only ma­terial before the Court consisted of various affida­vits and of letters exchanged between counsel for the parties. There were affirmations in some of the affidavits of belief that the film was banned because offensive to public morality and because it was obscene. However, the Chairman of the Board, although swearing an affidavit, did not disclose in it any reason for the ban and counsel for the Board and for the Attorney General refused in an answering letter to assign any reason for the ban when asked directly by counsel for the respondent to provide the reason. MacKeigan C.J.N.S. said flatly that "censorship of this type is obviously directed at obscenity and other immoral exhibitions".

An administrative authority like the Board, which is given unfettered and unguided power and discretion to prohibit the public exhibition of a film, and whose statutory power in that respect is challenged as being unconstitutional, cannot shield its exercise of that power by refusing to disclose the grounds upon which it has acted. Although counsel for the Attorney General of Nova Scotia stated in the course of his submissions that there was no limit to the Board's power to prohibit, his

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proposition is incorrect on administrative law grounds as well as on constitutional law grounds. It is enough, on the administrative side, to offer the reminder that an administrative authority must act in good faith, however wide its powers and regardless of the ambit of its discretion: see Roncarelli v. Duplessis[2]. On the constitutional side, there is the principle laid down by Kellock J. in Saumur v. Quebec and Attorney General of Quebec[3], at p. 339 where, speaking in relation to a Quebec city by-law which similarly gave unfet­tered and unguided discretion (to the Chief of Police) to refuse or grant permission to distribute pamphlets in the streets of the city, he said of the by-law:

Its validity is 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.

It is apt in this connection to refer to a preceding paragraph of Kellock J.'s reasons because they illuminate the issue raised here by the generality of the statute and the refusal of the Board to be candid about its exercise of authority. He says this (at p. 338):

Being perfectly general in its terms and setting no standard by which the official it names is to be governed in granting or refusing licences, the by-law can be used, as it has been, to deny distribution of its literature to one religious denomination, while granting that liberty to another or others. The by-law is equally capable of being applied so as to permit distribution of the litera­ture of one political party while denying that right to all others, or so as to refuse to allow the selling in the streets of some newspapers while permitting others. In any or all of these cases, the same physical acts would be involved occasioning the same degree of obstruction, if obstruction there would be. Nothing more is needed to demonstrate, in my opinion, that such a by-law was not enacted "in relation to" streets but in relation to the minds of the users of the streets.

A more recent instance of this approach, although not arising in a strictly constitutional context, is seen in the decision of this Court in City of Prince George v. Payne[4]. There the question was whether the City could lawfully refuse a business

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licence to a so-called sex shop under the broad mandate of the applicable British Columbia Municipal Act which, as here, contained no guidelines or standards but provided only that a licence or a renewal of licence shall not be unreasonably refused. This Court held, inter alia, that the City exceeded its powers in exercising its licensing au­thority to prohibit wholesale a particular business, a particular land use.

The issues before this Court in the present case do not engage the licensing authority of the Amusements Regulation Board, they do not relate to any film classification system, they are in no way concerned with the safety or suitability of premises in which films are sought to be exhibited or presented. The only inference that can be, indeed must be, drawn from the bare facts on the record is that the Board presumes to protect the general public from exposure to certain kinds of films, to insulate members of the public from viewing those films because, in the Board's allegedly unchallengeable judgment, the general public should not see them. Put another way, the Board asserts an unlimited statutory authority to determine for the general public what films are fit for public viewing.

The challenged provisions of the Act authorize regulations for (1) regulating and licensing or prohibiting any performance (which, as defined, includes film showings) and (2) prohibiting or regulating the exhibition of films. They go on to empower the Board to permit or to prohibit the exhibition of any film and, indeed, to prohibit notwithstanding a previous permission to exhibit. The Regulations that were attacked forbid theatre owners to permit any performance unless it has been authorized under the Regulations and, simi­larly, forbid any theatre owner to permit exhibi­tion of any film in his theatre which has not been authorized by the Board. These are supplementary provisions to the Board's power to permit or pro­hibit and are fed by Regulation 18 which requires submission of films to the Board and Board authorization for their use or exhibition. Under

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that Regulation, the Board may authorize or pro­hibit use or exhibition of a film or may authorize use with directed changes. Regulation 32 forbids any theatre owner to permit "any indecent or improper performance in his theatre", the Board being left to define what those terms mean. The sanction for any breach of the Act or Regulations by any person is a monetary penalty and also revocation or cancellation of licence if the offender is a licence holder, thus emphasizing the Board's complete control over the exhibition of films in the Province. One other Regulation was invalidated by the judgment below, namely, Regulation 13, forb­idding the advertising of any performance without the prior permission of the Board. It too reinforces the prohibitory authority of the Board over the exhibition of films.

There are no criteria fixed by the Statute upon which the Board is required to act, no provision distinguishing or classifying films as being fit for viewing by adults but not by children. Only Regu­lation 32 purports to establish criteria but they are at large, namely "indecent or improper perfor­mance" as the Board may define; and although they are addressed to theatre owners and amusement owners they relate directly to the general public's opportunity to view films that are sought to be exhibited. All of this is by way of prior determination, by way of anticipatory control of public taste.

Nova Scotia is not the only Province where censorship of films is left at large to a tribunal upon whose judgment the public is required to rely as to what may or may not be seen. The position is the same in Ontario, which was the first Province to enact film censorship legislation (see 1911 (Ont.), c. 73): see now The Theatres Act, R.S.O. 1970, c. 459, am. 1972, c. 1, s. 56. The arbitrary power of the Ontario Board of Censors is qualified only by a right of appeal to the Minister of Con­sumer and Commercial Relations who is likewise left without criteria, there being none under the

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Statute and there being no regulations. The Ontario Statute envisages, however, a classifica­tion system since s. 24(1) concerns signs or adver­tising referable to the classification of a film as adult or restricted entertainment, and under s. 21(4) persons "apparently under eighteen years of age" are not permitted to purchase tickets or to be granted admission to a theatre exhibiting a film classified as restricted entertainment. In Alberta, the Amusements Act, R.S.A. 1970, c. 18, empow­ers a board of censors to permit or prohibit the exhibition of any film in Alberta. Classification of films may be prescribed by regulation, and apart from certain exemption from censorship by the responsible Minister in favour of an educational organization, all films to be shown in Alberta must have a stamped approval of the censors. In New Brunswick, under the Theatres, Cinematographs and Amusements Act, R.S.N.B. 1973, c. T-5 the New Brunswick Film Classification Board is empowered to prohibit the exhibition of any film or any performance in a theatre "for cause", a term left to ad hoc definition by the Board.

In those Provinces where criteria were set out in film censorship legislation, general terms were used in giving direction to film censors to determine the fitness of films for public viewing. For example, they were to determine whether the films depicted "scenes of an immoral or obscene nature" or suggested "lewdness or indecency" or were "injurious to the morals of the city or any citizen thereof" or offered "evil suggestions to the minds of children" or were against the public welfare or likely to offend the public. These terms were found in the early legislation of Manitoba, British Columbia, Saskatchewan and Newfoundland: see Jewett, Censorship of Movies for Canadian Television (1972), 30 Fac. of Law Rev. (U. of T.), 1, at pp. 6 et seq. Newfoundland still retains as the criteria for "summarily" prohibiting the exhibition of any film whether the Board of Censors consid­ers it to be "injurious to the morals of the public, or against the public welfare or offensive to the public": see The Censoring of Moving Pictures Act, R.S. Nfld. 1970, c. 30.

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In the other Provinces just mentioned, signifi­cant changes have occurred in the past few years in their censorship legislation. In Manitoba, The Amusements Act, R.S.M. 1970, c. A70 was amended by 1972 (Man.), c. 74 to substitute a film classification board for the previous censor board, and the power given to the latter to permit or prohibit the exhibition of any film is replaced by power to classify and to control and regulate the advertising of films. The classification basis is set out in s. 23(2) as follows:

23 (2) The board shall

(a) classify any film or slide which in its opinion is unsuitable for viewing by children or by a family by reason of sex, nudity, violence, foul language or other reason, in such a manner that the film or slide shall be restricted to viewing only by persons eighteen years of age and over; and

(b) ensure that all classifications made by it are properly advertised by the owner or operator of the place of amusement where the film or slide is proposed to be exhibited, in such manner as the board may require.

In British Columbia, a new Act, the Motion Pic­tures Act, 1976 (B.C.), c. 27 provides for the appointment of a film classification director to whom films must be submitted for approval and he is required to classify every film which he approves for exhibition under one of three classifications; (1) general, suitable for all persons; (2) adult, unsuitable for or of no interest to persons under age 18; (3) restricted, suitable only for persons age 18 or over. There are no criteria for classification in the Act which gives the director power to order, as a condition of approval, the cutting or otherwise from the film of any portion that he does not approve for exhibition. He is further empowered "subject to the Act and regulations, to approve, prohibit or regulate the exhibition of any film in the Province".

In Saskatchewan, under The Theatres and Cinematographs Act, 1968 (Sask.), c. 76, a Film Classification Board is established with power to approve or disapprove of films intended for exhibi­tion in the Province, power to order removal by cutting or otherwise of any disapproved portion,

[Page 678]

and power to classify all films presented to it for review as either general, adult or restricted adult.

In Quebec, the Cinema Act, R.S.Q. 1964, c. 55, as amended by 1966-67 (Que.), c. 22 provided for the establishment of a Cinema Supervisory Board in place of a Board of Cinema Censors, and whereas the latter was empowered without qualification to examine films and to permit or deny their use in the Province, the former was empowered (under the 1967 amending legislation aforementioned) to permit a film to be shown "if in its opinion its showing is not prejudicial to public order or good morals"; and, in addition, all authorized showings were to be by way of classification under either (1) film for all; (2) film for adolescents and adults (spectators at least 14 years of age); (3) film for adults only (spectators at least 18 years of age). Before the 1967 amendment, the Act was known as the Moving Picture Act, and the Board of Censors thereunder was given authority under the Publications and Public Morals Act, R.S.Q. 1964, c. 50 to examine at the request of the Attorney-General, any periodical in order to determine whether any illustration therein was an immoral one within the Act which defined "immoral illus­tration" as any drawing, photograph, picture or figure which evokes real or fictitious scenes of crime or of the habitual life of criminals, or morbid or obscene situations or attitudes, tending to corrupt youth and pervert morals. Upon an order being made by the Board that any periodical contains an immoral illustration, and upon the posting of the order as provided by the Act, the periodical involved, subsequent copies included, could no longer be the object of ownership or possession, a type of sanction which was applied to slot machines under the provincial legislation held to be invalid as an invasion of the federal criminal law power in Johnson v. Attorney-General of Alberta[5].

I mention the Publications and Public Morals Act because it was considered and held ultra vires

[Page 679]

by Batshaw J., Quebec Superior Court, in Regina v. Board of Cinema Censors, ex parte Montreal Newsdealers Supply Co. Ltd.[6], a judgment relied on in opposition to the proponents of the Nova Scotia Theatres and Amusements Act. Batshaw J. came to the conclusion, in a lengthy review of the legislation and of a large number of cases put forward in its support, that there was no valid provincial object served by the legislation, unlike such cases in this Court as O'Grady v. Sparling[7], and Mann v. The Queen[8], but, rather, it dealt with public morals in an aspect falling within the feder­al criminal law power and, moreover, the federal Criminal Code applied in the very situation before the Court.

In 1975, Quebec replaced its Cinema Act by a new statute similarly named: see 1975 (Que.), c. 14. It goes beyond censorship and deals, inter alia, with the promotion of a Quebec film industry. I need only refer here to those of its provisions which relate to censorship. The new Act retains the classification system found in the superseded Act but the provision in the former Act that a film may be shown if it is not prejudicial to public order and good morals is gone. Instead, there are provisions governing the advertising of films and requiring approval of such advertising, such approval depending, under s. 29, on the film clas­sification director's opinion that the advertising is not likely to mislead the viewing public and is not contrary to public order, good morals or common decency.

I have referred to provincial censorship legisla­tion in the other Provinces not to pass any judg­ment on any of it but simply to show the various ways in which movie censorship is being handled in the various Provinces, the more recent legislation having moved to a classification scheme and to advertising control. The former is not involved in the present case and the latter in only a supple­mentary way.

[Page 680]

What is involved, as I have already noted, is an unqualified power in the Nova Scotia Board to determine the fitness of films for public viewing on considerations that may extend beyond the moral and may include the political, the social and the religious. Giving its assertion of power the narrowest compass, related to the film in the present case, the Board is asserting authority to protect public morals, to safeguard the public from exposure to films, to ideas and images in films, that it regards as morally offensive, as indecent, probably as obscene.

The determination of what is decent or indecent or obscene in conduct or in a publication, what is morally fit for public viewing, whether in films, in art or in a live performance is, as such, within the exclusive power of the Parliament of Canada under its enumerated authority to legislate in rela­tion to the criminal law. This has been recognized in a line of cases in which, beginning with the seminal case of Attorney-General of Ontario v. Hamilton Street Rwy.[9], (where it was said that it is the criminal law in the widest sense that falls within exclusive federal authority), the criminal law power has been held to be as much a brake on provincial legislation as a source of federal legisla­tion. For example, in Switzman v. Elbling[10], the Supreme Court invalidated a provincial statute which not only made it illegal for the possessor or occupier of a house to use or permit it to be used to propagate communism or bolshevism (which were not defined), but also made it unlawful to print, publish or distribute any newspaper or writing propagating or tending to propagate communism or bolshevism. Fauteux J., as he then was, said this, in a passage of his reasons, at p. 320, which can equally be applied here:

... In this specific instance, the subject-matter of the main provision—the prohibition of Communistic propa­ganda—is certainly one not coming, by itself, within the class of subjects enumerated in s. 92 as being within the competence of the Legislature. Parliament alone, legis­lating in criminal matters, is competent to enact, define, prohibit and punish these matters of a writing or of a speech that, on account of their nature, injuriously

[Page 681]

affect the social order or the safety of the state. Such are, for example, defamatory, obscene, blasphemous or seditious libels. In such cases, the rights being encroached upon are not those of an individual entitling him to a monetary compensation. The rights encroached upon are those of society itself, involving punishment…

Similarly apt here is Harrell v. Montreal[11], where a by-law which forbade the display of pictures of nudes or semi-nudes on news stands without the prior approval of the Chief of Police was held invalid, especially in the light of the obscenity provisions of the Criminal Code.

It is beside the point to urge that morality is not co-extensive with the criminal law. Such a conten­tion cannot of itself bring legislation respecting public morals within provincial competence. Moreover, the federal power in relation to the criminal law extends beyond control of morality, and is wide enough to embrace anti-social conduct or behaviour and has, indeed, been exercised in those respects.

Films have been held to fall within s. 159 of the Criminal Code, dealing with obscene publications: see R. v. Fraser[12]; R. v. Goldberg and Reitman[13]; Daylight Theatre Co. Ltd. v. The Queen[14]. Indeed, the very film, Last Tango in Paris, out of which this case arose, was the subject of a prosecution under s. 159 which was unsuccessful: see R. v. Odeon Morton Theatres Ltd.[15] I draw attention as well to s. 163 of the Criminal Code dealing with the presentation or giving of immoral, indecent or obscene performances, entertainments or represen­tations, and it seems to me that if films are within s. 159 they are a fortiori within s. 163. This is indicated in St. Leonard v. Fournier[16], where the New Brunswick Appeal Division held that a municipal theatre licensing by-law, which author­ized cancellation of a licence for a moving picture theatre where an immoral, profane or indecent

[Page 682]

show or performance takes place, was invalid in the face of what is now s. 163 of the Criminal Code. The by-law provisions considered in St. Leonard v. Fournier are similar to the provisions of Regulation 32 herein coupled with the sanction of s. 20 of the Nova Scotia Act by way of cancella­tion of licence.

This is not a case where civil consequences are attached to conduct defined and punished as crimi­nal under federal legislation, as in McDonald v. Down[17], but rather a case where a provincially authorized tribunal itself defines and determines legality, what is permissible and what is not. This, in my view, is a direct intrusion into the field of criminal law. At best, what the challenged Nova Scotia legislation is doing is seeking to supplement the criminal law enacted by Parliament, and this is forbidden: see Johnson v. Attorney-General of Alberta[18], per Rand J. at p. 138 (see also St. Leonard v. Fournier, supra, at p. 320).

It was contended, however, by the appellant and by supporting intervenants that the Nova Scotia Board was merely exercising a preventive power, no penalty or punishment being involved, no offence having been created. It is true, of course, that no penalty or punishment is involved in the making of an order prohibiting the exhibition of a film, but it is ingenuous to say that no offence is created when a licensee who disobeyed the order would be at risk of a cancellation of his licence and at risk of a penalty and any one else who proposed to exhibit the film publicly would likewise be liable to a penalty. Indeed, the contention invites this Court to allow form to mask substance and amounts to an assertion that the provincial legisla­ture may use the injunction or prohibitory order as a means of controlling conduct or performances or exhibitions, doing by prior restraint what it could not do by defining an offence and prescribing post facto punishment. This was attempted in the Ontario legislation that was considered and held unconstitutional in Attorney-General of Ontario v.

[Page 683]

Koynok[19] (judgment set aside on appeal on other grounds: see [1941] 1 D.L.R. 548 at 554n), legislation authorizing the Attorney-General to obtain an injunction restraining the publication of printed matter which continuously or repeatedly publishes writings that are obscene or immoral. The short answer, in any event, to the provincial contention is that given by the Privy Council in Attorney-General of Ontario v. Canada Temperance Federation[20], at p. 207 where Viscount Simon noted that "to legislate for prevention appears to be on the same basis as legislation for cure", a proposition that was applied by this Court in Goodyear Tire & Rubber Co. of Canada Ltd. v. The Queen[21], at p. 309.

It does not follow from all of the foregoing that provincial legislative authority may not extend to objects where moral considerations are involved, but those objects must in themselves be anchored in the provincial catalogue of powers and must, moreover, not be in conflict with valid federal legislation. It is impossible in the present case to find any such anchorage in the provisions of the Nova Scotia Statute that are challenged, and this apart from the issue of conflict which, I think, arises in relation to ss. 159 and 163 of the Crimi­nal Code. What is asserted, by way of tying the challenged provisions to valid provincial regulatory control, is that the Province is competent to licence the use of premises, and entry into occupations, and may in that connection determine what shall be exhibited in those premises. This hardly touches the important issue raised by the present case and would, if correct, equally justify control by the Province of any conduct and activity in licensed premises even if not related to the property aspect of licensing, and this is patently indefensible. Moreover, what is missing from this assertion by the appellant is a failure to recognize that the censorship of films takes place without relation to any premises and is a direct prior control of public

[Page 684]

taste. Bédard v. Dawson[22], which was heavily relied on by the appellant, does not assist the provincial contention because there, in the view of this Court at the time, the challenged provincial legislation related to the occupation and enjoyment of premises, and it was distinguished on that account from the wider legislation that was invalidated by this Court in Switzman v. Elbling, supra. For similar reasons, the appellant can find no comfort in R. v. Telegram Publishing Co. Ltd.[23], holding that prohibition of liquor advertis­ing could be validly enacted as part of the scheme of control of the sale of liquor in the Province, a matter which itself fell within provincial compe­tence. Benson and Hedges (Canada) Ltd. v. Attor­ney-General of British Columbia[24] is of the same order, and likewise does not touch the present case. Distinguishable on the same ground of a valid provincial scheme of liquor control is R. v. Skag­stead and Skagstead[25], where the prohibition against being disorderly in licensed premises, oper­ating post facto, fortified the scheme of control of liquor licensees whose licence would be in jeopardy if disorderliness was permitted on the licensed premises. Millar v. The Queen[26] was also urged by the appellant as relevant but I note that it involved a by-law against permitting gambling in licensed premises directed against the licensee, again post facto, and hence is distinguishable even if it be taken as correctly decided, there being a strong dissent in the case.

Much more relevant here than the principle sought to be applied on the basis of Bédard v. Dawson, supra, is that which is reflected in Henry Birks and Sons (Montreal) Ltd. v. Montreal[27]. In invalidating provincial prohibitory legislation

[Page 685]

directed to compulsory observance of certain reli­gious or feast days this Court made it clear that a tenuous connection with property (the operation of shops and businesses) will not save provincial legis­lation which is paramountly directed to religious or moral observance. Even the tenuous connection with property in the Birks case is absent here. Similarly relevant is R. v. Hayduck[28] where pro­vincial legislation making it an offence for a man to register at a hotel with a woman falsely held out to be his wife was struck down, nothing in the legislation touching the hotel operator.

It is not enough to save the challenged prohibi­tory provisions of the Nova Scotia Statute, if they are otherwise invalid, that they are part of a legislative scheme which embraces licensing of theatres and of motion picture projectionists. As I have already noted, the provisions now challenged go beyond the licensing provisions and engage the public directly. The position here is no different from that presented in relation to federal legisla­tion in MacDonald v. Vapour Canada Ltd.[29] where a provision in the Trade Marks Act charac­terized as unrelated to matters within federal competence, was not saved because of its alleged affinity with the general scheme of the Act.

This is not the first time that the Courts have been faced with the problem of assessing the valid­ity of broadly-drawn provincial legislation and of determining, in line with the preferable approach in such cases, whether it can reasonably be confined to matters within provincial competence. That can properly be done in cases like Shannon v. Lower Mainland Dairy Products Board[30] where the marketing or other regulatory scheme, although on its face susceptible of an extra-provin­cial application, is restricted to intra-provincial transactions. Another illustration, more germane and still outside the present case, is McKay v. The

[Page 686]

Queen[31] where a municipal zoning by-law prohib­iting signs on residential property was construed by the majority of this Court to be inapplicable to the posting of federal election signs, this being a matter outside of provincial competence.

For all the foregoing reasons I would dismiss this appeal and answer the constitutional question in the negative. The respondent is entitled to its costs in this Court but there will be no costs to or against any of the intervenants. In view of the conclusion to which I have come on the basis of the federal criminal law power and the exercise thereof, I find it unnecessary to consider the larger issue, raised but not pressed by the intervenant the Canadian Civil Liberties Association, of the rela­tion of censorship to free speech and the constitu­tional authority in that respect of Parliament and the provincial Legislatures.

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

RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Appeal Division of the Supreme Court of Nova Scotia rendered pursuant to an application made at the instance of the respondent McNeil whose standing to initiate the proceedings in a representative capacity on behalf of other Nova Scotians was confirmed by order of this Court (see [1976] 2 S.C.R. 265).

The respondent's application was for a declara­tion that certain sections of the Theatres and Amusements Act, R.S.N.S. 1967 c. 304 as amended, and certain Regulations made thereunder were ultra vires and beyond the legislative competence of the Province of Nova Scotia.

The exciting cause of the application appears to have been the exercise by the Nova Scotia Amuse­ments Regulation Board (hereinafter referred to as "the Board") of the authority which the Act purports to confer on it, to prevent a film entitled "Last Tango in Paris" from being exhibited in the theatres of Nova Scotia.

[Page 687]

It is the statutory provisions purporting to authorize the Board to regulate and control the film industry within the Province of Nova Scotia according to standards fixed by it, which are chal­lenged by the respondent on the ground that the citizens of Nova Scotia are thereby denied, on moral grounds, their right to exercise their freedom of choice in the viewing of films and theatre performances which might otherwise be available to them, and it is further alleged that the legisla­tion constitutes an invasion of fundamental freedoms.

The questions raised by the application were reserved for the consideration of the Appeal Divi­sion by order of Mr. Justice Hart made pursuant to s. 30(3) of the Judicature Act, c. 2 of the Statutes of Nova Scotia, 1972, and that Division having reserved its decision granted the following Order:

IT IS HEREBY DECLARED that the words 'prohibiting' in Sections 2(1)b and 2(1)g and subsections (2) and (3) of Section 3 of the Theatres and Amusements Act are null and void and of no effect being ultra vires the legislature of Nova Scotia.

IT IS FURTHER DECLARED that regulations 4, 5(1), 13, 18 and 32 made pursuant to the Theatres and Amuse­ments Act are null and void and of no effect being ultra vires the legislature of Nova Scotia; …

I should say that I have had the benefit of reading the reasons for judgment prepared for delivery by the Chief Justice in which he has recited the relevant sections of the Act and of the Regulations made thereunder which relieves me of the task of reproducing them once again and at the same time enables me to refer to such sections and Regulations as 1 find necessary for the development of these reasons in the knowledge that they will be read in their proper context.

In all such cases the Court cannot ignore the rule implicit in the proposition stated as early as 1878 by Mr. Justice Strong in Severn v. The Queen[32], at p. 103, that any question as to the validity of provincial legislation is to be approached on the assumption that it was validly

[Page 688]

enacted. As was said by Fauteux J., as he then was, in the Reference re The Farm Products Mar­keting Act[33], at p. 255:

There is a presumptio juris as to the existence of the bona fide intention of a legislative body to confine itself to its own sphere and a presumption of similar nature that general words in a statute are not intended to extend its operation beyond the territorial authority of the Legislature.

When the Act and the Regulations are read as a whole, I find them to be primarily directed to the regulation, supervision and control of the film business within the Province of Nova Scotia, including the use and exhibition of films in that Province. To this end the impugned provisions are in my view enacted for the purpose of reinforcing the authority vested in a provincially appointed Board to perform the task of regulation which includes the authority to prevent the exhibition of films which the Board, applying its own local standards, has rejected as unsuitable for viewing by provincial audiences. This legislation is con­cerned with dealings in and the use of property (i.e. films) which take place wholly within the Province and in my opinion it is subject to the same considerations as those which were held to be applicable in such cases as Shannon v. Lower Mainland Dairy Products Board[34], Home Oil Dis­tributors Limited v. A.G. of British Columbia[35] and Caloil Inc. v. Attorney General of Canada[36].

In the Shannon case, the Natural Products Marketing legislation was put in issue as constitut­ing an encroachment on "the regulation of trade and commerce" a subject assigned exclusively to the Parliament of Canada by s. 91(2), and in the course of delivering the opinion of the Judicial Committee, Lord Atkin had occasion to say of this ground;

It is sufficient to say upon the first ground that it is apparent that the legislation in question is confined to regulating transactions that take place wholly within the Province, and are therefore within the sovereign powers

[Page 689]

granted to the Legislature in that respect by s. 92 of the British North America Act.

More recently, in commenting on that case and the Home Oil case (supra) Mr. Justice Pigeon had occasion to say in Caloil Inc. v. Attorney General of Canada[37], at p. 549:

It is to be noted that the Shannon and Home Oil cases both dealt with the validity of provincial regulation of local trades. They hold that provincial authority over transactions taking place wholly within the province is, as a rule, applicable to products imported from another country, or brought in from another province, as well as to local products. However, it must be borne in mind that the division of constitutional authority under the Canadian Constitution often results in overlapping legislation.

It will be seen that, in my opinion, the impugned legislation constitutes nothing more than the exer­cise of provincial authority over transactions taking place wholly within the province and it applies to the "regulating, exhibition, sale and exchange of films" whether those films have been imported from another country or not.

We are concerned however in this appeal with a decision of the Appeal Division of the Supreme Court of. Nova Scotia in which the majority quite clearly struck down the legislation as ultra vires on the sole ground that it was concerned with moral­ity and as such constituted an invasion of the criminal law field reserved to the exclusive legisla­tive authority of Parliament under s. 91(27) of the B.N.A. Act.

The following passage from the reasons for judgment of the judges concerned serve to indicate the narrow basis on which they proceeded. In my view this is most clearly stated by Mr. Justice Cooper when he says:

Although the Amusements Regulation Board gave no reasons for placing 'Last Tango in Paris' in the so-called rejected classification and thus prohibiting the showing of this film in theatres in this Province I think it clear from the material before us that this action was taken because the film was considered by the Board to offend against acceptable standards of morality.

[Page 690]

This leads me to what in my opinion is the sole issue before us in this appeal, namely, has the legislature of this Province power to enact legislation under which a board or any other body or person may, in the interests of public morality, be authorized to prohibit the showing of a film or is the power to enact such legislation solely reserved for the Parliament of Canada? The short answer to this question is that the field of public morals is an aspect of criminal law which falls within the exclusive jurisdiction of the Parliament of Canada under s. 91(27) of the British North America Act, .. .

The same question was answered by Chief Justice MacKeigan in the following terms:

Censorship of this type is obviously directed at obscenity and other immoral exhibitions. Provincial legislation purporting to make such exhibitions offences punishable by prosecution would indisputably be a direct and invalid invasion of the federal criminal field.

Mr. Justice Coffin expressed himself to the same effect saying:

I am limiting my conclusions to the jurisdictional point that the legislation is valid criminal law and I am not entering the field of fundamental freedoms.

Mr. Justice MacDonald on the other hand, while agreeing with the other members of the Court, expressed the view that the legislation was ultra vires on the further ground, which had been advanced by the applicant, that it was potentially offensive as constituting "an unwarranted and ille­gal intrusion upon the fundamental freedoms of the citizens of Canada and in particular the Prov­ince of Nova Scotia."

As the latter ground formed no part of the reasoning upon which the judgment appealed from is based, I think it more satisfactory to proceed first to a consideration of the morality issue.

Although no reasons were given by the Board for the rejection of "Last Tango in Paris", all members of the Appeal division were satisfied that its exhibition was prohibited on moral grounds and under all the circumstances I think it to be appar­ent that this was the case. In any event, I am satisfied that the Board is clothed with authority to fix its own local standards of morality in deciding

[Page 691]

whether a film is to be rejected or not for local viewing.

Simply put, the issue raised by the majority opinion in the Appeal Division is whether the Province is clothed with authority under s. 92 of the British North America Act to regulate the exhibition and distribution of films within its own boundaries which are considered unsuitable for local viewing by a local Board on grounds of morality or whether this is a matter of criminal law reserved to Parliament under s. 91(27).

In the present context, the question of whether or not the impugned legislation encroaches on the criminal law authority is, in my opinion, best approached in light of the statement made by Kerwin, C.J., in the course of his reasons for judgment in the Lord's Day Alliance[38], at p. 503, where he said:

In constitutional matters there is no general area of criminal law and in every case the pith and substance of the legislation in question must be looked at.

Under the authority assigned to it by s. 91(27), the Parliament of Canada has enacted the Crimi­nal Code, a penal statute the end purpose of which is the definition and punishement of crime when it has been proved to have been committed.

On the other hand, the Theatres and Amuse­ments Act is not concerned with creating a crimi­nal offence or providing for its punishment, but rather in so regulating a business within the Prov­ince as to prevent the exhibition in its theatres of performances which do not comply with the stand­ards of propriety established by the Board.

The areas of operation of the two statutes are therefore fundamentally different on dual grounds. In the first place, one is directed to regulating a trade or business where the other is concerned with the definition and punishment of crime; and in the second place, one is preventive while the other is penal.

As the decision of the Appellate Division depends upon equating morality with criminality, I

[Page 692]

think it desirable at this stage to refer to the definitive statement made by Lord Atkin in this regard in the course of his reasons for judgment in Proprietary Articles Trade Association v. Attor­ney-General of Canda[39], where he said, at p. 324:

Morality and criminality are far from coextensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality—unless the moral code necessarily disapproves all acts prohibited by the State, in which case the argument moves in a circle. It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of 'criminal jurispru­dence';…

I share the opinion expressed in this passage that morality and criminality are far from coexten­sive and it follows in my view that legislation which authorizes the establishment and enforcement of a local standard of morality in the exhibi­tion of films is not necessarily "an invasion of the federal criminal field" as Chief Justice MacKei­gan thought it to be in this case.

Even if I accepted the view that the impugned legislation is concerned with criminal morality, it would still have to be noted that it is preventive rather than penal and the authority of the Province to pass legislation directed towards prevention of crime is illustrated by the case of Bédard v. Dawson[40], which was concerned with the validity of a statute of the Province of Quebec entitled "An Act respecting the owners of houses used as disor­derly houses", by which the judge was authorized to order the closing of a disorderly house. The legislation was held to be intra vires on the ground that it was concerned with property within the Province and Mr. Justice Anglin said, at p. 685:

...I am of the opinion that this statute in no wise impinges on the domain of criminal law but is concerned exclusively with the control and enjoyment of property and the safeguarding of the community from the conse­quences of an illegal and injurious use being made of it—a pure matter of civil right. In my opinion in enact­ing the statute now under consideration the legislature exercised the power which it undoubtedly possesses to

[Page 693]

provide for the suppression of a nuisance and the preven­tion of its recurrence by civil process.

The law of nuisance was undoubtedly a factor in the reasoning of some of the judges in this Court and in the Court of King's Bench of Quebec, but in my view the matter was not too broadly stated by Duff, J., as he then was, at p. 684, where he said;

The legislation impugned seems to be aimed at suppressing conditions calculated to favour the development of crime rather than at the punishment of crime. This is an aspect of the subject in respect of which the provinces seem to be free to legislate. I think the legislation is not invalid.

As I have already said, however, I take the view that the impugned legislation is not concerned with criminality. The rejection of films by the Board is based on a failure to conform to the standards of propriety which it has itself adopted and this fail­ure cannot be said to be "an act prohibited with penal consequences" by the Parliament of Canada either in enacting the Criminal Code or othewise [sic]. This is not to say that Parliament is in any way restricted in its authority to pass laws penalizing immoral acts or conduct, but simply that the pro­vincial government in regulating a local trade may set its own standards which in no sense exclude the operation of the federal law.

There is, in my view, no constitutional barrier preventing the Board from rejecting a film for exhibition in Nova Scotia on the sole ground that it fails to conform to standards of morality which

the Board itself has fixed notwithstanding the fact that the film is not offensive to any provision of the Criminal Code; and, equally, there is no constitu­tional reason why a prosecution cannot be brought under s. 163 of the Criminal Code in respect of the exhibition of a film which the Board of Censors has approved as conforming to its standards of propriety.

In the case of O'Grady v. Sparling[41], the ques­tion was whether a section of The Manitoba Highway Traffic Act creating the offence of driving a motor vehicle on a highway without due care and

[Page 694]

attention was ultra vires the Province as being an invasion of the criminal law field and in conflict with the provisions of the Criminal Code making criminal negligence in the operation of a motor vehicle an indictable offence. In the course of the reasons for judgment delivered on behalf of the majority of this Court, Mr. Justice Judson had occasion to say, at p. 807:

The central point of this appeal is the appellant's submission that whenever Parliament chooses to attach penal consequences to negligence of whatever degree, then any provincial legislation relating to negligence with penal consequences attached to it must be legisla­tion in relation to criminal law. This submission assumes a complete identity of subject-matter which in my opin­ion does not exist. It is also founded, in part at least, upon a theory of the existence of a 'general area' or 'domain' of criminal law which has been considered and rejected by this Court.

Having concluded that the provincial legislation "has for its true object, purpose, nature or charac­ter the regulation and control of traffic on highways and that, therefore, it is valid provincial legislation", Mr. Justice Judson went on to deal with the alleged conflict between The Manitoba Highway Traffic Act and the Criminal Code and determined that: "Both provisions can live together and operate concurrently."

Shortly after hearing the last-mentioned case, this Court had to consider the case of Smith v. The Queen[42], where the question was whether s. 63 of The Securities Act, R.S.O. 1950 c. 351, was ultra vires as criminal law, and in the course of the reasons for judgment delivered by Chief Justice Kerwin on behalf of the majority of the Court, he said of the legislation in question, at p. 779:

The general aim of the Act is to regulate the security business (there being a wide definition of 'security') and this is accomplished by the setting-up of The Ontario Securities Commission, with power to it to supervise the trading in securities by regulation and also power to supervise the trading in securities during a primary distribution by requiring the filing of a prospectus.

By section 63 of The Securities Act offences were created punishable by summary conviction for fur­nishing false information and for "the commission

[Page 695]

of any act or failure to perform any act where such commission or failure constitutes a violation of any provision of this Act or the regulations". Yet, Chief Justice Kerwin held that:

This section is not criminal law within Head 27 of s. 91 of the British North America Act, 1867, as it is not a provision the pith and substance of which is to prohibit an act with penal consequences. It is merely incidental to the main purpose and aim of the enactment. The words of Lord Atkin, Speaking for the Judicial Committee in Lymburn v. Mayland, [1932] A.C. 318, at p. 324, are particularly apt:

There was no reason to doubt that the main object sought to be secured in this part of the Act is to secure that persons who carry on the business of dealing in securities shall be honest and of good repute, and in that way to protect the public from being defrauded.

Before leaving the question of whether or not the impugned legislation is criminal law, I should say that I now recognize the authority of the statement made by Mr. Justice Martland in the course of his reasons for judgment in the Smith case (supra) where he said of the legislation in question, at p. 800:

The fact that both provisions prohibit certain acts with penal consequences does not constitute a conflict. It may happen that some acts might be punishable under both provisions and in this sense that these provisions overlap. However, even in such cases, there is no conflict in the sense that compliance with one law involves breach of the other.

The cases of Stephens v. The Queen[43] and Mann v. the Queen[44], are to the same effect.

It will be seen that in my view the impugned legislation "has for its true object, purpose, nature and character" the regulation and control of a local trade and that it is therefore valid provincial legislation.

I now turn to a consideration of the specific section declared to be ultra vires by the Appeal Division of Nova Scotia, the validity of which is the subject of the constitutional question directed

[Page 696]

by order of the Chief Justice. In this regard it is noteworthy that the 1st paragraph of the Order of the Appeal Division expressly declares that the word "prohibiting" in s. 2(1)(b) and 2(1)(g) and ss. (2) and (3) of s. 3 are null and void and the use of this word in these sections of the statute forms the basis of the Court's declaration that they are ultra vires the Legislature of Nova Scotia. As I find the legislation to have a valid provincial purpose, I take the view that at least the first paragraph of the Order made by the Appeal Division is inconsistent with the judgment of this Court in Quong Wing v. The King[45]. In that case the legis­lation prohibited the employment of white women by Chinese and provided a penalty of $100 for its contravention. In the course of his reasons for judgment, at p. 444, the Chief Justice explained the legislation as follows:

In terms the section purports merely to regulate places of business and resorts owned and managed by Chinese, independent of nationality, in the interest of the morals of women and girls in Saskatchewan.

And in upholding the validity of the legislation he observed that:

This legislation may affect the civil rights of Chinamen, but it is primarily directed to the protection of children and girls.

In the same case, Duff, J., as he then was, had this to say at p. 462:

The enactment is not necessarily brought within the category of 'criminal law,' as that phrase is used in section 91 of the `British North America Act, 1867', by the fact merely that it consists simply of a prohibition and of clauses prescribing penalties for the nonobserv­ance of the substantive provisions. The decisions in Hodge v. The Queen 9 App. Cas. 117, and in the Attorney-General for Ontario v. The Attorney-General for the Dominion [1896] A.C. 348, as well as in the Attorney-General Manitoba v. The Manitoba Licence-Holders' Association, [1902] AC. 73, already men­tioned, established that the provinces may, under section 92(16) of the 'British North America Act, 1867,' suppress a provincial evil by prohibiting simpliciter the doing of the acts which constitute the evil or the maintaining

[Page 697]

of conditions affording a favourable milieu for it, under the sanction of penalties authorized by section 92(15).

In conformity with this authority, Judson, J. stated in O'Grady v. Sparling, (supra), at p. 810:

What meaning can one attach to such phrases as 'area of criminal law' or 'domain of criminal law' in relation to such a subject-matter? A provincial enactment does not become a matter of criminal law merely because it consists of a prohibition and makes it an offence for failure to observe the prohibition; .. .

I conclude from these decisions that if the legis­lation is found to have been enacted for a valid provincial purpose the prohibition is equally valid. Much the same considerations apply to the Regu­lations declared to be ultra vires by the second paragraph of the order of the Appeal Division. Regulations 4 and 5(1) simply provide that no theatre owner shall permit the use for exhibition in his theatre of any film which has not been author­ized by the Board or any theatrical performance not authorized under the Regulations. These provi­sions are of the same character as those considered by the Court in the Quong Wing case where the

first section of the challenged legislation provided that:

No person shall employ in any capacity any white woman or girl or permit any white woman or girl .. . to frequent any restaurant, laundry or other place of busi­ness or amusement owned, kept or managed by any Chinaman.

and, as I have said, if the Act is for a valid provincial purpose, the Regulations made thereunder may validly preclude theatre owners from producing performances or exhibiting films which are not authorized by the Board. Regulation 13 is to the same effect providing as it does that:

No person shall advertise any performance unless the permission of the Board has first been obtained.

Regulation 18 is, in my opinion, similarly valid, but I consider it of interest to reproduce subsection (5) of that Regulation as it appears to me to illustrate the fact that the legislation has been enacted to regulate not only the exhibition of films in theatres, but the whole film business as conducted

[Page 698]

by film exchanges within the Province. The subsection reads:

(5) No film exchange shall use, exhibit, sell, lease or exchange any film unless a certificate of the Board has been issued in respect thereof and any film which is used, exhibited, sold, leased or exchanged in violation of this regulation may be confiscated by the Board.

Regulation 32 reads as follows:

32. (1) No theatre owner or amusement owner shall permit any indecent or improper performance in his theatre or place of amusement.

(2) No performer shall take part in any indecent or improper performance.

(3) The Board may from time to time define what constitutes an indecent or improper performance within the meaning of these Regulations.

In my view the provisions of this Regulation are in their effect and purpose indistinguishable from s.159(2) of the Criminal Code which provides, in part:

(2) Every one commits an offence who knowingly, without lawful justification or excuse, .. .

(b) publicly exhibits ... an indecent show, …

The use of the word "indecent" in both ss. (1) and (2) of the Regulation and in the Criminal Code is the common factor making the two enact­ments virtually identical and the judgment of this Court in Johnson v. Attorney General of Alberta[46], constitutes conclusive authority against the validity of such a provincial enactment.

The authority purported to be conferred on the Board by Regulation 32(3) is not an independent enactment and cannot stand alone, nor is it within the legislative authority of the Province to author­ize a provincial authority to define what consti­tutes an offence proscribed by the Criminal Code.

Unlike the other provisions of the statute and Regulations to which I have referred, this Regula­tion is not governed by the decisions in O'Grady v. Sparling, (supra), Stephens v. The Queen, (supra) and Mann v. The Queen, (supra), where the

[Page 699]

offences created by provincial legislation were of a different character to those enacted by the Crimi­nal Code.

In view of the above I find that Regulation 32 is invalid as being indistinguishable from the like provisions of the Criminal Code. I am, however, of opinion that this Regulation is clearly severable from the balance of the Regulations and the stat­ute and that it in no way detracts from, varies or curtails the authority vested in the Board under the statute itself.

As I have said, I take the view that the legisla­tion here in question is in pith and substance directed to property and civil rights and therefore valid under s. 92(13) of the British North America Act, but there is a further and different ground on which its validity might be sustained. In a country as vast and diverse as Canada, where tastes and standards may vary from one area to another, the determination of what is and what is not acceptable for public exhibition on moral grounds may be viewed as a matter of a "local and private nature in the Province" within the meaning of s. 92(16) of the B.N.A. Act, and as it is not a matter coming within any of the classes of subject enume­rated in s. 91, this is a field in which the Legisla­ture is free to act.

In the Reference as to the validity of "An Act to amend the Supreme Court Act"[47], Chief Justice Duff had occasion to say, at p. 58:

The legislative powers of the provinces are strictly confined in their ambit by the territorial limits of the provinces. The matters to which that authority extends are matters which are local in the provincial sense. This principle was stated in two passages in the judgment in the Local Option case (Attorney-General for Ontario v. Attorney-General for the Dominion [1896] A.C. 348) delivered by Lord Watson speaking for a very powerful Board at pp. 359 and 365, respectively. I quote them:.. .

The second passage to which the Chief Justice referred reads as follows:

It is not necessary for the purposes of the present appeal to determine whether provincial legislation for the suppression of the liquor traffic, confined to matters which are provincial or local within the meaning of Nos. 13 and 16, is authorized by the one or by the other of

[Page 700]

these heads. It cannot, in their Lordships' opinion, be logically held to fall within both of them. In s. 92, No. 16 appears to them to have the same office which the general enactment with respect to matters concerning the peace, order and good government of Canada, so far as supplementary of the enumerated subject, fulfils in s. 91. It assigns to the provincial legislature all matters in a provincial sense local or private which have been omitted from the preceding enumeration, and, although its terms are wide enough to cover, they were obviously not meant to include, provincial legislation in relation to the classes of subjects already enumerated.

As I indicated at the outset, I have taken note of the lengthy judgment of Mr. Justice MacDonald in the Appeal Division in which he finds that the impugned legislation is ultra vires as infringing on the fundamental freedoms to which he refers, which include freedom of association; of assembly; of speech; of the press; of other media in the dissemination of news and opinion; of conscience and of religion.

Mr. Justice MacDonald's approach appears to me to be illustrated by the following comment which he makes after referring to censorship legis­lation relating to morals in other provinces:

The foregoing criteria are of the usual 'sex, morals and violence' type that are normally associated with film censorship. In the present case, however, the censorship criterion, being left to the Board to determine, could be much wider and encompass political, religious and other matters. In my opinion censorship relating to party politics cannot be tolerated in a free society where unfettered debte on political issues is a necessity, sub­ject, of course, to the criminal law, particularly those provisions of the Criminal Code, relating to sedition, treason and incitement to crime. [The emphasis is added.]

It is true that no limitations on the authority of the Board are spelled out in the Act and that it might be inferred that it could possibly affect some of the rights listed by MacDonald J.A., but having regard to the presumption of constitutional validity to which I have already referred, it appears to me that this does not afford justifica­tion for concluding that the purpose of the Act was directed to the infringement of one or more of

[Page 701]

those rights. With the greatest respect, this conclu­sion appears to me to involve speculation as to the intention of the Legislature and the placing of a construction on the statute which is nowhere made manifest by the language employed in enacting it.

For all these reasons, I would allow this appeal, set aside the judgment of the Appeal Division of Nova Scotia and substitute for the declaration made thereunder a declaration that Regulation 32 made pursuant to the Theatres and Amusements Act of Nova Scotia is null and void.

This does not appear to me to be a case in which costs should be awarded.

Appeal allowed, no order as to costs, LASKIN C.J. and JUDSON, SPENCE and DICKSON JJ. dissenting.

Solicitors for the appellants: J. W. Kavanagh and Donald G. Gibson, Halifax.

Solicitors for the respondent: Boyne, Crocker, Jones & Murrant, Halifax.

Solicitor for the Attorney General of Canada: D. S. Thorson, Ottawa.

Solicitors for the Attorney General of Ontario: Soloway, Wright, Houston & Co., Ottawa.

Solicitors for the Attorney General of Quebec: G. Rémillard and Anne Laberge, Quebec City.

Solicitors for the Attorney General of British Columbia: Burke-Robertson, Chadwick & Ritchie, Ottawa.

Solicitors for the Attorney General of Prince Edward Island: Beament, Fyfe, York, Boucher, Ottawa.

Solicitors for the Attorney General of Alberta: Gowling & Henderson, Ottawa.

Solicitor for the Canadian Civil Liberties Asso­ciation: E. J. Ratushny, Ottawa.