R. v. Furtney, [1991] 3 S.C.R. 89
Philip Furtney, Scott Furtney, Diane Roy,
Hugh Chamney and Diamond Bingo Inc. (62394) Appellants
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General for Alberta,
the Attorney General for Saskatchewan and
the Attorney General of Newfoundland Interveners
Indexed as: R. v. Furtney
File No.: 21759.
1991: June 20; 1991: September 26.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Cory, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Delegation ‑‑ Criminal law ‑- Lotteries -‑ Criminal Code prohibiting lotteries except those conducted in accordance with terms and conditions of licence issued by Lieutenant Governor in Council of province ‑‑ Whether lottery provisions in Code improperly delegating criminal law power ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 207(1)(b), (2), (3).
Constitutional law ‑‑ Colourability ‑‑ Criminal law ‑- Lotteries -‑ Criminal Code prohibiting lotteries except those conducted in accordance with terms and conditions of licence issued by Lieutenant Governor in Council of province ‑‑ Whether lottery provisions in Code create invalid discretionary regulatory regime ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 207(1)(b), (2), (3).
Constitutional law ‑‑ Charter of Rights ‑‑ Right not to be found guilty unless act or omission constituted offence in law ‑‑ Criminal Code prohibiting lotteries except those in accordance with terms and conditions of licence issued by Lieutenant Governor in Council of province ‑‑ Terms and conditions of licence not published in official gazette ‑‑ Accused convicted of counselling conduct of lottery in manner not authorized by terms and conditions of licence ‑‑ Whether non‑publication of terms and conditions infringes s. 11(g) of the Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 207.
Criminal law ‑‑ Lotteries ‑‑ Criminal Code prohibiting lotteries except those conducted in accordance with terms and conditions of licence issued by Lieutenant Governor in Council of province ‑‑ Accused convicted of counselling conduct of lottery in manner not authorized by terms and conditions of licence ‑‑ Whether non‑publication of terms and conditions of licence in official gazette bar to conviction ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 207 ‑‑ Statutory Instruments Act, R.S.C., 1985, c. S‑22, ss. 2(1), 11(2).
The appellants were charged with counselling bingo licensees to violate the terms and conditions of their licences, contrary to ss. 22 and 207(3) of the Criminal Code. The provincial terms and conditions for bingo lotteries are set out in provincial orders‑in‑council, regulations or directions which, while not published in the Canada or Ontario Gazettes, are provided to each licensee when the licence is issued. The appellants were acquitted in the Provincial Court on the ground that ss. 207(1)(b) and 207(2) of the Code were ultra vires Parliament as an improper delegation of criminal law. The impugned sections contemplate the development of a defined licensing lottery scheme with licences to be issued by or under the authority of the Lieutenant Governor in Council. That scheme may be established by provincial legislation. Ontario has no legislative lottery scheme. The summary conviction appeal court allowed the Crown's appeal, set aside the acquittals and ordered a new trial. The appellants' appeal to the Court of Appeal was dismissed. This appeal is to determine (1) whether ss. 207(1)(b), 207(2) or 207(3) of the Code are ultra vires Parliament as improper delegation to a provincial body of a matter within the exclusive competence of the federal government; (2) whether ss. 207(1)(b), 207(2) and 207(3) create a discretionary administrative regulatory regime to govern lotteries; and (3) whether the non‑publication of the terms and conditions imposed under ss. 207(1)(b) and 207(2) infringe the rights guaranteed under s. 11(g) of the Canadian Charter of Rights and Freedoms.
Held: The appeal should be dismissed.
While Parliament cannot delegate its legislative authority to a provincial legislature, there is no prohibition against delegating such authority to any other body. Parliament may also incorporate provincial legislation by reference or limit the reach of its legislation by a condition, namely the existence of provincial legislation. That is not a delegation. In the exercise of its powers, Parliament is free to define the area in which it chooses to act and, in so doing, may leave other areas open to valid provincial legislation. If a province legislates in respect of an open area, it is not doing so as a delegate, but in the exercise of its powers under s. 92 of the Constitution Act, 1867. The regulation of gaming activities has a clear provincial aspect under s. 92 subject to Parliamentary paramountcy in the case of a clash between federal and provincial legislation.
The Lieutenant Governor in Council has capacity or status to receive a delegated power. He is not subject to any constitutional prohibition against the acceptance of delegated authority. While in some instances a delegation to the Lieutenant Governor would be tantamount to a delegation to a legislature, that question need not be resolved here because the essential elements of the federal lottery scheme are spelled out in the Code and the Lieutenant Governor only made administrative decisions relating to matters of essentially provincial concern. These decisions fall within the ambit of Re Peralta and The Queen (1985), 49 O.R. (2d) 705.
Sections 207(1)(b) and 207(2) of the Code do not fall within the constitutional prohibition of inter-delegation of legislative powers. Section 207(1)(b) does not impose any right or duty on a provincial legislature. It gives authority to the Lieutenant Governor in Council or a person or authority specified by him. Section 207(2) similarly does not impose any right or duty on a provincial legislature, with the exception of the last phrase, which provides that a licence issued by or under the authority of the Lieutenant Governor in Council may contain such relevant terms and conditions as "any law enacted by the legislature of that province may prescribe". This provision should not be read as a delegation of legislative authority by Parliament but as incorporating by reference provincial legislation authorizing the Lieutenant Governor in Council to issue licences containing relevant terms and conditions or as excluding from the reach of the criminal law prohibition lotteries licensed under provincial law so long as that licensing is by or under the authority of the Lieutenant Governor in Council.
Sections 207(1)(b), 207(2) and 207(3) do not create a discretionary administrative regulatory regime to govern lotteries. Parliament did not attempt to use its criminal law power as a colourable means of regulating matters within provincial jurisdiction. The decriminalization of lotteries licensed under prescribed conditions constitutes a definition of the crime, defining the reach of the offence. This is a constitutionally permissive exercise of the criminal law power, reducing the area subject to criminal law prohibition where certain conditions exist.
The non‑publication of the terms and conditions of the lottery licences did not infringe s. 11(g) of the Charter. The section is directed toward the need that impugned conduct be criminal at the time of its commission and has nothing to do with the question of how the law is to be made known. However, assuming that s. 11(g) embraces some concept of availability, the most that can be said is that the law should be ascertainable by those affected by it. Since the terms and conditions are furnished to every licensee, this requirement has been met.
The non‑publication of the terms and conditions under which the licences were issued is not a bar to a conviction. While there is an order‑in‑council, not published as a statutory instrument, setting out some terms and conditions, the offence charged relates to the terms and conditions of specified licences and involves an allegation that those terms and conditions are an express provision of the licences, a matter to be proven, rather than an allegation that the terms and conditions are imposed by law. The terms and conditions of individual licences are not within the definition of "statutory instruments" in the federal Statutory Instruments Act.
Cases Cited
Applied: Re Peralta and The Queen (1985), 49 O.R. (2d) 705 (C.A.), aff'd [1988] 2 S.C.R. 1045; Coughlin v. Ontario Highway Transport Board, [1968] S.C.R. 569; distinguished: Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31; Johnson v. Attorney General of Alberta, [1954] S.C.R. 127; referred to: Lord's Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497; Lord's Day Alliance of Canada v. Attorney‑General for Manitoba, [1925] A.C. 384; Reference as to the Validity of the Regulations in Relation to Chemicals, [1943] S.C.R. 1; R. v. Wilson (1980), 119 D.L.R. (3d) 558; Morgentaler v. The Queen, [1976] 1 S.C.R. 616; Attorney‑General for Ontario v. Reciprocal Insurers, [1924] A.C. 328; Re Board of Commerce Act, [1922] 1 A.C. 191; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; Reference Re Workers' Compensation Act, 1983 (Nfld.), [1989] 1 S.C.R. 922.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(g), 15.
Constitution Act, 1867, ss. 92(7), (9), (13).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 22 [rep. & sub. 1985, c. 19, s. 7], 190 [am. 1974‑75‑76, c. 93, s. 12; am. 1985, c. 19, s. 31; rep. & sub. idem, c. 52, s. 3].
Criminal Code, R.S.C., 1985, c. C‑46, s. 207 [am. c. 27 (1st Supp.), s. 31; rep. & sub. c. 52 (1st Supp.), s. 3].
Statutory Instruments Act, R.S.C., 1985, c. S-22, ss. 2(1) "regulation", 11(2).
Authors Cited
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswell, 1985.
Dreidger, Elmer A. "The Interaction of Federal and Provincial Laws" (1976), 54 Can. Bar Rev. 695.
APPEAL from a judgment of the Ontario Court of Appeal (1989), 52 C.C.C. (3d) 467, 73 C.R. (3d) 242, affirming the judgment of a summary conviction appeal court (1988), 44 C.C.C. (3d) 261, 66 C.R. (3d) 121, ordering a new trial on charges of counselling the conduct of a lottery in a manner not authorized by s. 190 of the Criminal Code. Appeal dismissed.
Peter E. Harvey, Trevor Whiffen and John O'Kane, for the appellants.
Scott C. Hutchison, for the respondent.
I. G. Whitehall, Q.C., and Kimberly Prost, for the intervener the Attorney General of Canada.
Gilles Laporte and Monique Rousseau, for the intervener the Attorney General of Quebec.
Peter V. Teasdale, for the intervener the Attorney General for Alberta.
P. Mitch McAdam, for the intervener the Attorney General for Saskatchewan.
B. Gale Welsh, for the intervener the Attorney General of Newfoundland.
The judgment of the Court was delivered by
//Stevenson J.//
Stevenson J. -- The appellants appeal, by leave of this Court, a decision of the Ontario Court of Appeal, affirming the decision of a summary conviction appeal court directing a new trial on charges that the appellants counselled the violation of terms and conditions of licences relating to bingo lotteries.
The issues before us relate to the constitutionality of the provisions of the Criminal Code permitting certain licensed gambling and whether the non-publication of the conditions under which the licences were issued is a bar to conviction.
Facts
The appellants were charged in an information that, on five occasions, they counselled licensees of bingo lottery schemes to violate the terms and conditions of their licences relating to bingo lotteries, contrary to s. 190(3) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 207(3)). In particular, they were accused of counselling the breaking of the so-called 15%-20% rule (a maximum of 15% of the revenues can go to management costs and a minimum of 20% of the revenues must go to the charity). The terms and conditions for such lotteries are set out in Order-in-Council 2797/82 and other rules, regulations and directions issued by the Ministry of Consumer and Commercial Relations of Ontario. The allegation was that the substantive offence of breaching the terms and conditions of the licences was an offence under s. 190(3) of the Code and that, therefore, s. 22 applied (counselling an offence).
The appellants challenged the provisions of ss. 190(1)(b) and 190(2) (now ss. 207(1)(b) and 207(2)). They submitted that Parliament exceeded its powers of delegation in permitting exemptions from criminality for charitable or religious organizations operating a lottery pursuant to a licence issued by the Lieutenant Governor in Council of a province. They further argued that, even if there were a proper delegation of power to the provincial authority, Order-in-Council 2797/82 was not passed in accordance with provincial legislation and that the order, together with the other rules and directions, were not published and, therefore, did not create an offence known to law. Finally, they contended that the legislative scheme set out in ss. 190(1)(b) and 190(2) violated s. 15 of the Canadian Charter of Rights and Freedoms by reason of the unequal effect of those provisions throughout the country. The trial judge, finding that the provisions of the Code purporting to delegate power to the Lieutenant Governor in Council were ultra vires Parliament as an improper delegation of criminal law, dismissed the charges against the appellants.
The Crown appealed the summary conviction acquittals to the Supreme Court of Ontario (Weekly Court). Campbell J., allowing the appeal, set aside the acquittals and ordered a new trial for the appellants: (1988), 44 C.C.C. (3d) 261, 66 C.R. (3d) 121.
The appellants' appeal to the Court of Appeal for Ontario was dismissed: (1989), 52 C.C.C. (3d) 467, 73 C.R. (3d) 242.
Judgments
Provincial Court of Ontario
The trial judge observed that:
The problem of inter-delegation in the case at bar has to do with a direct delegation of what the provincial prosecutor argues are administrative powers only, that is a delegation from the Criminal Code which is strictly within the competence of Parliament to an administrative body totally under the control of the Provincial cabinet. The defence argues that this is an indirect conferring of legislative power to the Province in the absence of any provincial legislation.
Noting that criminal law must be construed strictly, he queried whether a breach of one of the regulations or directives of the Provincial Lotteries Branch constituted an offence to bring into play the full force of the criminal law. He stated that:
One must assume that the reason for non-publication [of the order, regulations and directives] was the perception by the Provincial Government that the Order-in-Council and other policy directives were simply administrative, which of course is the Crown's position. This places the Province in a dilemma. The sanctions are strictly under the Criminal Code, yet it is sought to impose criminal sanctions pursuant to a perceived administrative act of a provincial authority.
I must come to the conclusion that the Order-in-Council and other directives of the Provincial authority under which the present charges are laid are in essence legislative in that they purport to create offences punishable under the Criminal Code and as such are not offences known to law.
With some reluctance, I must find that the provisions of Section 190(1)(b) and 190(2) of the Criminal Code purporting to delegate power to the Lieutenant Governor in Council of a province with respect to the conduct and management of lotteries as therein set out are ultra vires Parliament as an improper delegation of criminal law.
The trial judge found it unnecessary to deal with the argument under s. 15 of the Charter.
Supreme Court of Ontario (Weekly Court)
The summary conviction appeal judge noted that the charge against the appellants was not that they had violated the conditions of a licence but rather that they had counselled a lottery which was not authorized by or pursuant to s. 190 of the Criminal Code.
The summary conviction appeal judge observed that the Ontario Court of Appeal in Re Peralta and The Queen (1985), 49 O.R. (2d) 705, upheld the delegation in the federal Fisheries Regulations of the power to a provincial minister to issue fishing licences and to impose terms and conditions. In that case, the Court held that the effect of the federal regulations was to set general policy and that, in setting individual fishing quotas within those policy guidelines, the provincial minister was acting in a manner consistent with the regulations. In the opinion of Campbell J., that is exactly what was done in the present case. In decriminalizing and, in fact legalizing, certain forms of gambling in s. 190, Parliament was creating a regulated industry. It set the general guidelines for the regulated industry and left it to the provinces to provide the details of the scheme of regulation. The trial judge, in his view, erred in law in distinguishing Re Peralta. Re Peralta was affirmed by this Court, [1988] 2 S.C.R. 1045 (sub nom. Peralta v. Ontario), "substantially for the reasons given by MacKinnon A.C.J.O.".
Campbell J. did not agree with the appellants' contention that the charges did not disclose an offence known to law. He observed that neither the order-in-council nor the terms and conditions of the licence are regulations or statutory instruments and that there is no requirement that they be "gazetted". In his view, s. 11(g) of the Charter has nothing to do with publication of laws or statutory instruments. It provides that no one should be convicted of an offence unless the law is actually in force at the time of the offence but does not speak of the manner in which the law is to be made known. He added that, if there is a constitutional requirement in s. 11(g) or s. 7 that the content of criminal sanctions should be accessible to the general public, the requirement has been met as the licensing conditions are provided to each licensee when the licence is issued.
In the opinion of the summary appeal judge, the impugned provisions do not offend s. 15 of the Charter.
Court of Appeal
The Court of Appeal was of the view that the essential elements of the offence are found not in the terms and conditions of the licences but, rather, in the wording of s. 207(3) of the Criminal Code, R.S.C., 1985, c. C-46 (formerly s. 190(3)). In other words, it was incumbent upon the Crown to establish that the appellants counselled the licensees, for the purpose of a lottery scheme, to do something not authorized by a provision of s. 207 in connection with the conduct, management or operation of the lottery scheme.
The Court of Appeal rejected the argument that s. 207 and the scheme created by it are unconstitutional because they contravene the equality provisions of s. 15 of the Charter. In its opinion, the authoritative analyses of the Supreme Court of Canada in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, R. v. Turpin, [1989] 1 S.C.R. 1296, and Reference Re Workers' Compensation Act, 1983 (Nfld.), [1989] 1 S.C.R. 922, have made it clear that no equality rights of the appellants have been infringed in the present case and that s. 15 of the Charter therefore has no application.
The Court of Appeal was not persuaded that s. 207 of the Code and the scheme created by it amount to a delegation by Parliament of the exercise of the criminal law power to provincial authorities. It agreed with the summary appeal judge that the trial judge erred in distinguishing Re Peralta and that the reasoning of the Court of Appeal in that case dictated the result in the present case.
The court rejected, as well, the appellants' submission that the information disclosed no offence known to law. That argument depended upon their submission that the terms and conditions of the bingo licences are the essential elements of the substantive offence, a submission which was rejected by the court. In the court's view, it was impossible to obtain a bingo licence without becoming aware of its terms and conditions.
Relevant Legislation
Canadian Charter of Rights and Freedoms
11. Any person charged with an offence has the right
. . .
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
Criminal Code, R.S.C., 1985, c. C-46
207. (1) Notwithstanding any of the provisions of this Part relating to gaming and betting, it is lawful
. . .
(b) for a charitable or religious organization, pursuant to a licence issued by the Lieutenant Governor in Council of a province or by such other person or authority in the province as may be specified by the Lieutenant Governor in Council thereof, to conduct and manage a lottery scheme in that province if the proceeds from the lottery scheme are used for a charitable or religious object or purpose;
. . .
(2) Subject to this Act, a licence issued by or under the authority of the Lieutenant Governor in Council of a province as described in paragraph (1)(b), (c), (d) or (f) may contain such terms and conditions relating to the conduct, management and operation of or participation in the lottery scheme to which the licence relates as the Lieutenant Governor in Council of that province, the person or authority in the province designated by the Lieutenant Governor in Council thereof or any law enacted by the legislature of that province may prescribe.
(3) Every one who, for the purposes of a lottery scheme, does anything that is not authorized by or pursuant to a provision of this section
(a) in the case of the conduct, management or operation of that lottery scheme,
(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years, or
(ii) is guilty of an offence punishable on summary conviction; or
(b) in the case of participating in that lottery scheme, is guilty of an offence punishable on summary conviction.
Issues
The following constitutional questions were stated by Cory J. on September 17, 1990:
1.Do sections 207(1)(b), 207(2) and 207(3) of the Criminal Code of Canada, R.S.C., 1985, c. C‑46, create a discretionary administrative regulatory regime to govern lotteries, and if so, is it thereby ultra vires Parliament?
2.Are sections 207(1)(b), 207(2) or 207(3) of the Criminal Code of Canada, R.S.C., 1985, c. C‑46, or any combination thereof, ultra vires Parliament as improper delegation to a provincial body of a matter within the exclusive competence of the Federal Government?
3.Does the non‑publication of the terms and conditions imposed under ss. 207(1)(b) and 207(2) of the Criminal Code of Canada, R.S.C., 1985, c. C‑46, infringe or deny the rights guaranteed under ss. 7 or 11(g) of the Canadian Charter of Rights and Freedoms? If so, is such non‑publication a reasonable limit prescribed by law demonstrably justified in a free and democratic society and thereby saved by s. 1 of the Canadian Charter of Rights and Freedoms?
Discussion
The appellants were acquitted at trial as a result of their seeking and obtaining, on an agreed statement of facts, a determination that there was an ultra vires delegation of criminal law. As there is a direction that there be a new trial, which I conclude should be affirmed, it is necessary to restrict the discussion to the issues before us as some questions touched upon in argument may properly have to be canvassed at that new trial.
I begin by addressing the second constitutional question as it was that which appears to found the trial judgment. Does the Code invalidly delegate to the province the authority to make criminal law?
The sections under consideration contemplate the development of a defined licensing scheme with licences to be issued by or under the authority of the Lieutenant Governor in Council. That scheme may be established by provincial legislation, but nothing in the sections requires the existence of provincial legislation. If there is provincial legislation then, as I shall explain, there may be no question of delegation. If, however, there is no provincial legislation, provincial authorities may be said to be exercising a delegated power in defining the circumstances giving rise to an exemption from the reach of the criminal law. The Ontario Court of Appeal characterized any delegation as a delegation of administrative powers.
All parties agree that the prohibition of gaming is an exercise of the criminal law power.
The leading authority on what is best described as prohibited inter-delegation is Attorney General of Nova Scotia v. Attorney General of Canada, [1951] S.C.R. 31. It establishes that Parliament cannot delegate its legislative authority to a provincial legislature. We must, then, ask whether the impugned provisions of the Code delegate legislative authority over some aspect of the criminal law to the provincial legislature.
On the other hand, if what Parliament does is not characterized as a delegation of a legislative power to a provincial legislature, this authority does not govern.
The issue may be described as one of characterization. The trial judge described the provincial order-in-council and directives governing licensing as actions of "the Provincial authority", and "in essence legislative". The Ontario Court of Appeal characterized it as an administrative delegation. In my view no matter how characterized the scheme is constitutionally unimpeachable.
In Coughlin v. Ontario Highway Transport Board, [1968] S.C.R. 569, this Court recognized that Parliament may incorporate by reference provincial legislation as it may from time to time exist. That is not a delegation. There, federal legislation gave the provincial transport board authority to license extra-provincial undertakings upon like terms and conditions as if the undertaking were a local one within the province. Cartwright J., for the majority, upholding the legislation said, at p. 575:
. . . there is here no delegation of law-making power, but rather the adoption by Parliament, in the exercise of its exclusive power, of the legislation of another body as it may from time to time exist. . . .
Thus, in the exercise of its powers generally, and the criminal law specifically, Parliament is free to define the area in which it chooses to act and, in so doing, may leave other areas open to valid provincial legislation.
If a province legislates in respect of an open area, it is not doing so as a delegate, but in the exercise of its powers under s. 92 of the Constitution Act, 1867. That proposition is discussed in the context of the exercise of the criminal law power in Lord's Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497. There the federal Lord's Day Act made it unlawful to engage in public games or contests "except as provided in any provincial Act or law now or hereafter in force". This Court held that provincial laws permitting the otherwise prohibited conduct were not ultra vires, but rather provided a condition of fact that Parliament had provided as a limitation on its own statute. The permissive legislation fell within s. 92 and there was no delegation to the province. In Lord's Day Alliance of Canada v. Attorney-General for Manitoba, [1925] A.C. 384, the Privy Council had recognized that Parliament was free to prohibit and to forbear from prohibiting in the exercise of its legislative authority over criminal law.
In my view, the regulation of gaming activities has a clear provincial aspect under s. 92 of the Constitution Act, 1867 subject to Parliamentary paramountcy in the case of a clash between federal and provincial legislation. The appellants claim the contrary, citing Johnson v. Attorney General of Alberta, [1954] S.C.R. 127. That case does not decide that the province cannot legislate in relation to gaming activities; it decides that the province cannot prohibit and punish in the interest of public morality because such legislation is, in pith and substance, criminal law. The legislation in question there could find no legitimate anchor in s. 92. Altogether apart from features of gaming which attract criminal prohibition, lottery activities are subject to the legislative authority of the province under various heads of s. 92, including, I suggest, property and civil rights (13), licensing (9), and maintenance of charitable institutions (7) (specifically recognized by the Code provisions). Provincial licensing and regulation of gaming activities is not per se legislation in relation to criminal law.
If the licensing scheme were grounded in a provincial statute there would , therefore, be no delegation. The provincial legislation would be valid as falling within provincial heads of power. Where there is no provincial legislative base the exercise of authority might still be valid as an exercise of the prerogative power. That point need not be pursued as the question was not argued before us.
I now turn to the question of whether the alleged delegation is to a legislature. The Nova Scotia inter-delegation case is the governing authority. Hogg, Constitutional Law of Canada (2nd ed. 1985), at pp. 295 to 298, questions whether there is an acceptable rationale for the rule, but the parties here do not challenge it.
I agree with Dreidger in "The Interaction of Federal and Provincial Laws" (1976), 54 Can. Bar Rev. 695, when he concludes that inter-delegation is constitutionally impermissible because there is a constitutional prohibition founded upon the granting of exclusive powers to the Parliament on one hand, and the provincial legislatures on the other.
The prohibition is against delegation to a legislature. There is no prohibition against delegating to any other body. The power of Parliament to delegate its legislative powers has been unquestioned, at least since the Reference as to the Validity of the Regulations in Relation to Chemicals, [1943] S.C.R. 1. The delegate is, of course, always subordinate in that the delegation can be circumscribed and withdrawn. The Lieutenant Governor in Council has capacity or status to receive a delegated power: R. v. Wilson (1980), 119 D.L.R. (3d) 558 (B.C.C.A.), at p. 568. He is not subject to any constitutional prohibition against the acceptance of delegated authority. It may be that in some instances a delegation to the Lieutenant Governor would be tantamount to a delegation to a legislature. That question need not be resolved in this case because the essential elements of the substantial federal scheme are spelled out in the Code and what was done by the Lieutenant Governor was to make administrative decisions relating to matters of essentially provincial concern. These decisions fall within the ambit of the decision in Re Peralta, supra.
Thus Parliament may delegate legislative authority to bodies other than provincial legislatures, it may incorporate provincial legislation by reference and it may limit the reach of its legislation by a condition, namely the existence of provincial legislation.
I now analyze and characterize the sections in question here.
Section 207(1)(b) does not impose any right or duty on a provincial legislature. It gives authority to the Lieutenant Governor in Council or a person or authority specified by him. Regardless of the nature of the delegation, it is not a prohibited inter-delegation.
Section 207(2) similarly does not impose any right or duty on a provincial legislature, with the exception of the last phrase which provides that a licence issued by or under the authority of the Lieutenant Governor in Council may contain such relevant terms and conditions as "any law enacted by the legislature of that province may prescribe".
I do not read that provision as a delegation of legislative authority by Parliament. In my view, the provision may be read as incorporating by reference provincial legislation authorizing the Lieutenant Governor in Council to issue licences containing relevant terms and conditions or as excluding from the reach of the criminal law prohibition, lotteries licensed under provincial law so long as that licensing is by or under the authority of the Lieutenant Governor in Council. Dreidger, in the article to which I have referred, notes that the Criminal Code exemption for lotteries conducted in accordance with a provincial statute is not a delegation. I agree.
I note that these very provisions were referred to as valid by Laskin C.J. in his dissenting judgment (the majority not addressing the matter) in Morgentaler v. The Queen, [1976] 1 S.C.R. 616. The Chief Justice (at p. 627) referred to Parliament's authority to introduce dispensations or exemptions from criminal law in determining what is and what is not criminal.
The burden upon the appellants is to show that the impugned provisions constitute a delegation of legislative authority to a provincial legislature. That they have failed to do. Save for the last provision of s. 207(2) whatever authority is devolved was not devolved upon a provincial legislature. The last provision must be seen as either incorporating provincial legislation or limiting the reach of the criminal law when provincial legislation meets certain conditions. As Ontario has no legislative scheme, no question arises about whether that scheme meets the conditions prescribed.
I now turn to the first issue; whether there is an invalid discretionary regulatory regime.
The appellants question whether the criminal law power will sustain the establishment of a regulatory scheme in which an administrative agency or official exercises discretionary authority. In so doing they ask the question "referred to by Professor Hogg" in his Constitutional Law of Canada, supra, at p. 415. Hogg suggests that the question is really one of colourability. On this issue the appellants point to cases such as Attorney-General for Ontario v. Reciprocal Insurers, [1924] A.C. 328, and Re Board of Commerce Act, [1922] 1 A.C. 191, in which Parliament attempted to use its criminal law power as a "colourable means of regulating matters within provincial jurisdiction". I find the appellants' argument completely inconsistent with their assertion that "the regulation of lotteries is a matter of federal responsibility". In my view the decriminalization of lotteries licensed under prescribed conditions is not colourable. It constitutes a definition of the crime, defining the reach of the offence, a constitutionally permissive exercise of the criminal law power, reducing the area subject to criminal law prohibition where certain conditions exist. I cannot characterize it as an invasion of provincial powers any more than the appellants were themselves able to do.
Much was made of the fact that the provinces and the federal government reached an agreement in 1985 under which the federal government agreed that it would not conduct lotteries, but rather leave the conduct of lotteries to the provinces. I am unable to discern any grounds upon which this agreement can be said to be unconstitutional let alone have any unconstitutional effects on the provisions of the Code. Parliament, in the exercise of the criminal law power, may define those agencies or instrumentalities exempt from the prohibition.
Finally, I turn to the last issue, non-publication. In my view s. 11(g) of the Charter is directed towards the need that impugned conduct be criminal at the time of its commission. That proposition is fundamental, but has nothing to do with the question of how the law is to be made known. Indeed, s. 11(g) embraces criminal law recognized by the community of nations, international law, which is not by its very nature subject to requirements of domestic publication.
The appellants made no reference in argument to s. 7. I do not propose discussing whether that section may have any impact on the question of publication.
The essence of their complaint is that the terms and conditions of lottery licences are not published or gazetted. Assuming that s. 11 embraces some concept of availability, I am of the view that the most that can be said is that the law be ascertainable by those affected by it. The terms and conditions are furnished to every licensee. I note, also, that as licences may vary, the suggestion that the law requires some additional publication of them offends common sense.
In argument reference was made to the provisions of the Statutory Instruments Act, R.S.C., 1985, c. S-22, which by ss. 2(1)(b) and 11(2) forbids conviction for contravention of a regulation or statutory instrument not gazetted. There is an order-in-council, not published as a statutory instrument, setting out some terms and conditions (including the one of which the appellants are said to have counselled a breach). However, the offence charged relates to the terms and conditions of specified licences which is an allegation that those terms and conditions are an express provision of the licences, a matter to be proven, rather than an allegation that the terms and conditions are imposed by law. The terms and conditions of individual licences are not within the definition of statutory instruments.
Disposition
I would dismiss the appeal.
I would answer the constitutional questions as follows:
1.Do sections 207(1)(b), 207(2) and 207(3) of the Criminal Code of Canada, R.S.C., 1985, c. C‑46, create a discretionary administrative regulatory regime to govern lotteries, and if so, is it thereby ultra vires Parliament?
A. No.
2.Are sections 207(1)(b), 207(2) or 207(3) of the Criminal Code of Canada, R.S.C., 1985, c. C‑46, or any combination thereof, ultra vires Parliament as improper delegation to a provincial body of a matter within the exclusive competence of the Federal Government?
A. No.
3.Does the non‑publication of the terms and conditions imposed under ss. 207(1)(b) and 207(2) of the Criminal Code of Canada, R.S.C., 1985, c. C‑46, infringe or deny the rights guaranteed under ss. 7 or 11(g) of the Canadian Charter of Rights and Freedoms? If so, is such non‑publication a reasonable limit prescribed by law demonstrably justified in a free and democratic society and thereby saved by s. 1 of the Canadian Charter of Rights and Freedoms?
A.There is no violation of s. 11(g). Section 7 was not argued.
Appeal dismissed.
Solicitors for the appellants Furtney, Roy and Diamond Bingo Inc.: Holden, Day, Wilson, Toronto.
Solicitors for the appellant Chamney: Dunn, Gillis & O'Kane, Brampton.
Solicitor for the respondent: The Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Ste‑Foy.
Solicitor for the intervener the Attorney General for Alberta: The Department of the Attorney General, Edmonton.
Solicitor for the intervener the Attorney General for Saskatchewan: Brian Barrington‑Foote, Regina.
Solicitor for the intervener the Attorney General of Newfoundland: Paul D. Dicks, St. John's.