KBOINA V. VVASON. 
 
 J 
 
 AFPHAI. FROM TiiH OIHHN'S BHXCll DIVISION 
 
 'lO llil'. 
 
 COURT OV AFFliAL FOR ONTARIO. 
 
 HEARD OCTOBER 17th, 1889. 
 
 BEFORE HAGARTY, C. J.; BURTON, J A.; OSLER, J. A.; and 
 
 ■ . MACLENNAN, J. A. 
 
 EDWARD iU.AKi:, O. C. and .K. IRX'IXC;, O. C, fok tiik Ckown. 
 E. H. EDWARDS fok iiik Rksi-ondent. 
 
 These notes of the argument for the Crown are printed as a very slight contri- 
 bution to the long discussion on the meaning of the Constitutional Act. 
 
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 TIIK BUDGKT I^RINTING .. nD I'l FJI.l^JlING CO.. f.4 l<.\\ 
 
 M.\K(,ii, iSuo. 
 
 -I KM-.r 
 
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RBOINA V. WASON. 
 
 ARGUMENT FOR THI'; CROWN. 
 
 This is an Appeal from an Order of the Queen's 
 iiencii l)ivisi(iii, (juasiiiiig a conviction, on tiie 
 gronnd that tiie Act, under vvliich it was made, is 
 ultra vire.f of tiie Provincial Legislature, as trend) - 
 ing on (Criminal Lasv. 
 
 The Appeal is taken under anotlier Provincial 
 Act, whicli is also attacked on the sanrj ground, as 
 trenciiing on ('ritidnal Procedure. 
 
 The principal Act, r»l Vic, cap. .S2, Ont. , provides 
 that: 
 
 i. No person shall knowingly and wilfully sell. sui)i)ly, 
 brin(i or send to a cheese or butter nianutactory, or the 
 owner or manager tliercof, to be'nianufacturecl, milk ili- 
 liiteil with water, or in any way adulterated, or mill< from 
 which any cream has been taken, or milk commonly known 
 as ■ skimme 1 milk." without distinctly notifying, in writing, 
 the owner or manager of such cheese or Ijutter manufac- 
 tory, that the milk so sold, sui)plietl or brought to he 
 manufactured has been so diluted with water, or adidter- 
 ated, or had the cream so taken from it. or become milk 
 commonly known as • skimmed milk,' as the case may be. 
 
 4. Any person who by himself, or by his servant, or 
 agent, violates any of the provisions of the preceding 
 sections of tiiis .\ct. upon conviction thereof before any 
 justice or justices of the peace, shall forfeit and pay a sum 
 of not less than $5 nor more than $50, together with the 
 costs of prosecution, in the discretinii of such justice or 
 justices, ami in default of payment of such penalty and 
 costs, shall be liable to be cumniittetl to the common gaol 
 of the county, with hard labor tor any period, not exceed- 
 ing si.\ months, imless the said penalty and costs of enforc- 
 ing same be sooner paid. 
 
 The second Act, 52 Vic., cap. 15, Out., provides 
 that : 
 
 3. — (I'l .\n appeal to the Court of Appeal shall lie from 
 a judgment 'r decision of the High C(uirt, or a Judsi; 
 thereof, upon an application t(. quash a conviction maiie 
 under a statute of the I.egislature of Ontario creating an 
 offence punishable l)y summary conviction before a justice. 
 or to discliarge a prisoner who is iield in custody under 
 such conviction, and without giving any security on the 
 appeal, whether the conviction is quashed or the prisoner 
 flischarged, or the api)licatioii is relused. 
 
 Provided that the Attorney-(jeiieral for Canada or the 
 .'\ttorney-(ieneral for Ontario, certifies his opinion that 
 the decision involves a question on the construction of the 
 Uritish North America Act, and that the same is of sufttci- 
 ent importance to justify tlie case being apjiealed. 
 
 (?) I'pon such certihcate being f)roduced to the Clerk 
 of the Court in which the judgment or decision has lieen 
 given, the clerk shall certify under the seal of the Court 
 the proceedings had l)efore, or in said Court, to the Court 
 of Apiieal ; and the Court of .Appeal shall thereupon hear 
 and tletermine the appeal without any formal i)leadings, 
 
 .111. 1 ell 'til m\'j. wilful, .irrl^rt. ^ri"kmMiirrt*if.t .it4.>('f fl\i. iiirlir- 
 
 anu oeieniime ine appeal wiinoui any lormai i)ieailings, 
 ami shall give sucii orderfor carrying int(> etiect the ju'lg- 
 ment of that Court as the circumstances oi. the case require. 
 .Such judgment shall be appealable like other judgments 
 of the said Court. 
 
 (3) This section shall be deemed declaratory, and sliall 
 apply retroactively as well as otherwise. 
 
 Tlift Crown avers th.it both thesc Acts are intra 
 virex. 
 
 In support of this view, I may begin by stilting 
 some propositions, now aliii'>st axiomatic, an obser- 
 vance of which I contend solves both ijuestions. 
 
 Kirst, all reasonable presumptions and intend- 
 nient? are to be made in favor of the validity of the 
 
 law. If one av.iilablc construction will maintain, 
 wiiile another would destroy it, we are to clioose 
 tiie former. Tliere is no case in wliicli we siiould 
 more strenuously apply tlie rule of so construing iit 
 >v-.s nmijls rali-at fjitain pereat. One illustration of 
 this method is to be found in the course of Ritchie 
 V. .1. ill Predeiicton v. The Queen, M C. S. (". R., 
 where, dealing with an Act whicii was calh-d 
 " Tlie Tempeiancr Act," anil whose preamble re 
 cited the desirability of promoting temperance 
 tiirougiiowt the Dominion, he rejected both titb; 
 and preamlile as indicative of a legislative objtict 
 said to be ultra rin s ; pointing out that if tlie 
 enacting clauses were, as li'i held them to lie, with- 
 in tile legislative power of Parliament, under its 
 authority to regulate trade and commerci', the .\<rt 
 must be held valid, title and preamble notwith- 
 stamliiig. 
 
 Next, in construing the Constitutional Act, we 
 are, even more than commonly, to look at the 
 wliole law ; to avoid detached views, and niii;ro- 
 scopic investigation of isolated words and phiases ; 
 to remember that the Act is little miu'e than a 
 skeleton ; to seek for a reconciling and etFectiiatiiig 
 construction ; to treat provisions, which may seem 
 at first sight contradictory or repugnant, as rules 
 and their exceptions or moditicatioiis ; and to aim 
 by all fair means at the accomplishment of the 
 great and principal purposes which are indicated 
 by the Act itself. 
 
 Again, all powers reasonably requireil in ordeV 
 to tlie full execution of express powers are to be 
 liberally implied ; and of this rule a capital illus- 
 ti ation must be that no one of the political sover- 
 eignties organized under the Act is to be left 
 dependent upon any other of them for the capacity 
 fully to execute its exclusive powers. See The 
 (^ueen v. Hodge, in this Court, 7 App. R., per 
 Spragge, C. J., p. '252, and per Ruiton, J., p. 270. 
 Any other construction would, in truth, be destruc- 
 tive pro fanfo of the sovereignty ; for over that 
 whijh it can accomplish only at the will of another 
 indepenilent authority it has no sovereign power. 
 
 Again, the efficacy of all laws depends upon their 
 sanctions. It is true that, after a time, a law which 
 has commended itself to the general sentiment, and 
 become, as it were, a habit of the people, exerts a 
 power, apart from the mere dread of its compulsory 
 enforcement ; it has liecome, more or less, a part 
 of that public morality whicli is so largely the 
 creature of custom and convention. lint, mainly 
 at first, and largely afterwards, and always with 
 reference to the law-breaking or criminal classes, 
 it is upon the sanction that the efficacy depends. 
 After all, law is force. A law without a sanction 
 is hriitiim fnlinc.n. Thus the power to make a law 
 would necessarily imply power to provide a 
 sanirtion, and machinery tor the enforcement of the 
 
4 
 
 Itiw and for the execution of the Himcition. There- 
 fore, tlie a<l(litioM of expresM power in the IJ. N. A. 
 Aet to ttflix certiiin sanL'tionH was made (-.r ninjorl 
 cantfla ; and was, p'iihapa, due to that very <iitfi- 
 eulty, ariHJng from the curious partition of power 
 in rcHpeet to puldic justice, f)ut of which the pre- 
 Hent (jueHtiouH grow. See Regina v. i'Vawley, per 
 Spragge, C. J., 7 App. ii. 
 
 Dealing now witli that partition, 1 may o))8erve 
 tiuit in cascH of divided sovereignties such as our.s, 
 it wouhl seem tlie ol>viou8 course to assign to eacii 
 its ov. n ade([uate an<l inih'pendent measure of 
 Executive, Legishitive and Judicial power, so 
 mailing each comj)lete in itself ; and thus the Pro- 
 vinces and the Doiidnion would each have tlu'lr 
 own Courts and .Judicial otHcers and macldnery for 
 the execution of their own laws. l>ut our constit'i- 
 tional plan, perliaps not very logical in some oilier 
 lespects, is particularly confusing and unsymmetri- 
 eal here, h'rom motives, peihaps fd economy, per- 
 haps of supposed simplicity, I know not why, 
 extraordinary ai'raugements have been made. Vet 
 it is plain that tlie bulk of the whole subject of 
 public justice goes to the Province, To the Pro- 
 vince are conunitted Property and C'ivil llights in 
 their largest sense ; the Administration of .Justije 
 generally, including tlie constitution, nuiintaincnce 
 and organization of Courts of botli Civil and ('rim- 
 inal jurisdiction, and including Civil procedure in 
 those Courts ; Public and Reformatory Prisons ; 
 Municipal institutions; and Local ami Private 
 matters ; in which latter provisions are held to be 
 included the extensive range of tlie so-called 
 " Police power " ; and to all this is added the im- 
 position of punishment by tine, peiudty or impris- 
 onment for enforcing any Pro\ incial law relating to 
 any of the Provincial subjects of legislation. 
 
 To the Dondnion are given the appointment ami 
 payment of the .Judges, Penitentiaries, (/rinnnal 
 Law and ('rindnal Procedure, not including the 
 organization of Courts, besides ceitain important 
 departments carved out of " Property and Civil 
 rights." 
 
 Now, stopping here, there ndght be an absolute 
 failure of the execution of IJondnion laws, liecause 
 a I^rovince might, through carelessness or design, 
 onut to create a Court with tht; reouisite jurisdic- 
 tion ; thus leaving the law a dead letter. )iut this 
 contingency was obviated by the clause authorizing 
 the Dondnion to erect adtlitional Courts for the 
 better execution of its laws, and thus to supply any 
 defect which the Province might leave. 
 
 I shall ask the Court tc assume, if there be (as I 
 shall show theie is), a reasonable construction avail- 
 able, that the Provinces were not left defenceless 
 either ; and that tiiey have power to complete and 
 execute their laws, irrespective of Dcuniidon action. 
 
 But first of all, before passing to procedure, I 
 wish to deal with the principal Act ; and to that 
 end I enquire what is the real range of the Provin- 
 cial law-making power? 
 
 It deals (some large sub-divisions no doubt 
 excepted), with most things touching the rights 
 and relations of men, save ciindnal law, in the 
 sense to be given to that phiase when used in the 
 Act, and crinunal procedure, in the same sense ; 
 it deals even with criminal courts and crinunal 
 justice; and its power over its vast range of 
 sid)jects is so full tliat it may attach to any law 
 within that range highly penal sanctions -fine 
 unlimited ; penalty unlindted ; imprisonment at 
 hanl labor ; imprisonment uidimiteil in duration, 
 even for the wlude term of life ; any penalty indeed 
 nov/ applied, short of death. The very fact that 
 
 expresH power is given to affix a^tBanctionH dreadful 
 punishments, used for grave crimes, the severest 
 penalties awarded in practice to all but half a 
 dozen out of many thousand crindnals, is of itself 
 cogent proof that the contemplated range of the 
 Provincial laws )iiust l)e very wide indeed. 
 
 Now I contend that it was not everything that 
 was pnidsliable under the laws as they stooil at the 
 datt! of ('onfederatif)n that then bet^ame Dondnion 
 ('rindmil Law. For example, J would except 
 offences condug within the departments of .Muid- 
 cipal institutions, and of tlie Police power ; and 
 also acts which were punishable merely because 
 peinil sanctions had been attached exclusively f(n' 
 the better prevention of civil injuries. I submit 
 tiiat the true principle is that a law which, if it 
 had nr>t then been already passed, couhl have Ijeen 
 tlien^after passed by a I'rovince, would not become 
 Dominion (Criminal Law on the Isi; of duly, IfSfJT. 
 
 it is obvious that tlu; Province, legislating on 
 conduct, contracts, actions, rights, relations, pro- 
 perty, local and private matters, as well as on 
 Municipal institutions and matters witliin the 
 Police power, can, if it thinks fit, attach to any 
 of these laws sanctions, not only such as are 
 generally appropriated to civil injuries, but such as 
 are ordinarily restricted to criminal matters ; it 
 can, if it think tit, enforce any of these laws by 
 severe punisiuneut. Tiie Provincial power goes 
 far beyond the largest notion of satisfaction, resti- 
 tution, or compensation to iiu individual aggrieved ; 
 though even such milder si. mictions may be, as 
 Austin shows, in a si use deterrent and punitive. 
 Tlie Provincial power includes what is solely penal; 
 for example, a Hue or penalty payable to the State; 
 or imprifionmen*;, and that at hard labor ; and that 
 again absolute, a;Ml not merrily as a saTictiou for 
 the payment of th.^ fine. One might give a long 
 list of citations from judgments, from the Privy 
 Council downward, of phrases like Provinc'al 
 Criminal Law. (Jrant that this is a just, though not 
 the happiest, description of such laws as 1 have 
 been describing ; and it becomes obvious that we 
 cannot interpret "criminal law "and "criminal pro- 
 cedure" in the !)lst clause in their larger sense ; or, 
 if we do, that we must make an exception, and a 
 great exception too, in respect to Provincial 
 subjects. 
 
 Now, as to the distinctions usually taken be- 
 tween civil and crin.inal wrongs, it is to be observeil 
 that the definitions geneially (juoted have been 
 attempted under a political organization in which 
 the legislative authority was a unit ; vliero the 
 divisions of power which obtain with us had no 
 existence. They are, therefore, the less useful for 
 our purposes. At any rate they are various, nor is 
 it easy to find any certain rule. In several decisions 
 of our own Courts the authorities have been quoted; 
 but these seem of less value for the reason I have 
 mentioned, and also because the distinguishing 
 characteristic s of our situation hardly seem to have 
 been sufficiently brought to the attention of the 
 Court. 1 may, however, refer to Austin's language 
 at vol. "2, p. 72 ; and quote his attempt to state 
 certain distinctions in a later page. 
 
 Sanctions may be divided into civil and criminal, or 
 (chanjfinH: tiie expression), into private and iiublic. 
 
 Tiie distinction between private and puijiic wrongs, or 
 civil injuries and crimes, does iiot rest unon any difference 
 between the respective tendencies of tlie two classes of 
 offences. All wrongs lieing in tl\eir remote consequences 
 generally mischievous; and most of tlie wrongs styled 
 public, being immediately detrimental to determinate 
 persons. 
 
 Viewed from a certain aspect, all wrongs and all sanctions 
 are public. For all wrongs are violations of laws establish- 
 
c(l ilircctly or imliioctly hy the Sovereign or State. Anil 
 all sanctions arc enforced by tlie Sovereign, or by sovereign 
 authority. 
 
 Hilt in certain cases of wrongs which are offences against 
 rights, or (changing the expression) which are breaches of 
 p*° relative duties, tlu; sanction is enforced at the inst.inceor 
 discretion of the injiiii;(l party. It is competent to the 
 determinate person inimedutely affertcd by tlie wrong, tc 
 enforce or remit tlie lial)ility incurred l)y the wrong-chier. 
 And, in every case of the Icind, the injury and the sanction 
 may be styled civil, or (if we like the term better) private. 
 
 In other cases of wrongs wliicli are l)reaches of relative 
 duties, and in all cases of wrong which are breaches of 
 alisolute duties, the sanction is enforced at the discretion 
 of the Sovereign or State. It is onlv by the Sovereign or 
 .State that the liability incurred by tfie wrongdoer can he 
 remitted. And in every case of the kind, the injury and 
 the sanction may be styled criminal or public. 
 
 In some countries, the f)ursuit o.' [jrosecution of crimes 
 does not strictly reside in the Sovereign or .St.ite, but in 
 some member of the sovereign body. I'"or instance, the 
 pursuit of criminals resides in this country in the King ; 
 or. in a tew instances, in the House of Commons. The 
 proposition must, therefore, be taken with this qualitica- 
 tion. 
 
 In short, the distinction between t^'vate and public 
 wronjjs, or civil injuries and crimes. ,v()uki seem to consist 
 in this : 
 
 Where the wrong is a civil injury, the sanction .s enforced 
 at the discretion of the party whose right luis been violated. 
 Where the wrong is a crime, the sanction is enforced at the 
 discretion of the sovereign. And, ac'orJingly. the same 
 wrong may be private or public, as we take i with reference 
 to one, or to another sanction. Considered as a ground of 
 action on the part of the injured individual, a battery is a 
 civil injury. The same battery, considered as a ground 
 for an indictment, is a crime, or public wrong. 
 
 Hut it is clear that the Provincial jurisdiction in 
 respect of Municipal matters and the I'olice powei', 
 au(l its express authority to dttuch to any of its 
 laws the penal sanctions I have mentioned, rendei- 
 less applicable to us Austin's distinction ; or, if it is 
 to be applied, then tiiat the Provincial power is to 
 be treated as an exception or modification. 
 
 Much more valuable in several aspects of this 
 case are the observations of .Stepiien, in his History 
 of the Criminal Law, vol. 1, p. 1 ; from wiiicii I 
 (juote several passages. 
 
 The most ob\ious meaning of the expression (the crim- 
 inal law) is that part of the law which relates to crimes 
 and their punishment -a crime being defined as an act or 
 omission in respect of which legal i)unisliment may be in- 
 flicted on the person who is in default, either by acting or 
 omitting to act. 
 
 riiis cletinitioii is too wide for practical purposes. If it 
 were ajiplied in its full latitude it w(jukl embrace all law 
 whatever, for one specific peculiarity by which law is dis- 
 tinguished from morality is that law is coercive, and all 
 coercion at some stage involves the possibility of punisli- 
 ment. This might be shown in relation to matters al- 
 together unconnected with criminal law, as the expression 
 is commonly understood, such as legal maxims and the 
 rules of inheritance. 
 
 It would be a violation of the common use of language 
 to describe the law relating to the celebration of marriage, 
 or the Merchant Shipping .\ci. or the law relating to the 
 registration of births as branches of the Criminal Law, 
 yet the statutes on each of these subjects contain a great 
 I or lesr, number of sanctioning clauses which it is difficult 
 to understand without reference to the whole of the acts 
 to which they belong. 
 
 The definition of criminal law suggested above must 
 either be considerably narrowed or must conflict with the 
 common use of language by including many parts of the 
 I'iw to which the expression is not usually applied. 
 
 For all practical purposes a short description of the sub- 
 ject to which the expression "criminal law'' is common- 
 ly applied is more useful than any attempt to sum uj) in a 
 few words the specific peculiarity by which this is distin- 
 guisheci from other i)arts of the law. The following is such 
 a description : The criminal law is that part of the law 
 which relates to the definition and punishment of acts or 
 omission which are punished as being (i) attacks upon 
 public order, internal or external ; or (2) abuses or obstruc- 
 tions of puljlic authority ; or (3I acts injurious to the 
 public in general ; or (4) attacks iipon the persons of indi- 
 viduals or upon rights annexed to their persons ; or (5) 
 attacks upon the property of individuals or rights con- 
 nected with and similar to rights of property. 
 
 This description of criminal law is intended to exclude 
 two large and important classes of laws which might 
 perhaps oe includecf not only with propriety, but in accord- 
 
 ance with popular language under the phrase Criminal 
 Law. 'I'hese .ire. first, l.tws which constitute summary or 
 police offences. ,ind secondly, laws which impose upon 
 certain offenders money penalties, which may be recovered 
 by civil .iction, brought in some cases by the person 
 offended, in others by ((unmon informers. .Summary 
 offences have of late years multiplied to such an extent 
 that the law relating to them may be regarded as forminff 
 a special head of the law of Kngland. Such offences differ 
 in many important particulars from those gross outrages 
 against the public ,uid against individuals which we com- 
 monly associate with the word crime. It would be an 
 abuse of language to 'pply such a name to tin; conduct of 
 a person who docs not sweep the snow from before his 
 dcors. or in whose chimney a tire occurs. On the other 
 hand, many common offences against i)eison and i)roperty 
 have of late years been rendered li.dile to punishment by 
 courts of summary jurisdiction, and such 1 .ises and the 
 courts by which they are tried f.dl within the scope of the 
 subject of this book, and are dealt with in their place. 
 
 The passage then goes on to show that penal 
 actions are still further removed from the subject, 
 and proceeds to deal with Austin's definition ; and 
 points out that in the common use of language the 
 words "crii: t" and " criminal" no doubt connote 
 moral guilt (,' a more serious character than that 
 which is involved in a bare infringement of law as 
 dehned by Austin. 
 
 And again in vol. .'] at p. "2(56, in dealing with 
 certain offences punishable on summary conviction, 
 a passage is to be foun<l bearing iirectly and most 
 cogently on the question in iiand. 
 
 Probably all the Acts which regulate particular trades or 
 branches of business, such as the Factory .Acts, the .Xcts 
 for the regulation of mines, the Companies .Vets, and many 
 others create offences punishable on summary conviction. 
 
 1 pass over these l.irge subjects in a cursory and sum- 
 mary way. because the offences in {piestion do noi: form 
 part of thecrimin; 1 law proi)erly so called ; but are merely 
 the sanctions by .vhich other branches of the Maw are in 
 case of need enforced. 
 
 Here we find, even in a case where the unity of 
 legislative power tended to confusion, the recogni- 
 tion of that distinction which is made part of our 
 fundamental law, and on which I largely rest in 
 support of the validity of the Act. 
 
 Apart from other difficulties, it is clear that the 
 subjects ov'erlap ; that the border line is doubtful, 
 and is fluctuating ; that what is puiely a civil wrong 
 to-day may wear something of a criminal aspect 
 to-morrow ; and that witli us this very result may 
 How from the legislative action of a Province in 
 applying to laws affecting property or civil rights 
 a penal sanction, on the grounds that other sanc- 
 tions are inadequate. Some breaches of contract 
 for example, or of civil relations, and some invas- 
 ions of rights or property are quasi criminal. They 
 include elen.ents of graver offence, or of greater 
 turpitude, or of public danger or inconvenience 
 which may properly entail highly punitive conse- 
 quences ; and which nuiy result in the end in their 
 being added to the list of crimes in the more 
 restricted sense of the word. Again, sanctions 
 now generally restricted to crime have formerly 
 been applied to purely civil wrongs, as the 
 non-payment of a debt ; while on the other hand 
 things formerly crimes have ceased to be so, for 
 example, heresy and witchcraft. And once again 
 certain classes of wrongs, formerly the subject of 
 civil action only, are now prohibited under penal 
 sanctions ; while year by year the range of such 
 proliiliitions is e.xtended to case after case of con- 
 duct which no one would call "criminal." It is 
 not then from any such line of enquiry as this that 
 we can hope to find a satisfactory solution. 
 
 Now, the conclusion 1 suggest is this, that we 
 caimot affix any limit in this direction to the power 
 of the I'rovince in respect of "property and civil 
 rights' (wiiich, of course, includes the regulation of 
 
6 
 
 pi°(>{H!rty mill of c()iitra<;t-t iiml deiiiiiigH) ho lon^ iih: 
 (I) ItH liiw (lo(!H not (Mi(.-ro;icli on that whioli wiiH in 
 tlie proper and ludtiiotcd HenBe " criniiniil " at tlio 
 datt! of tluj \\. N. A. Act; and i'2) It« sanction 
 dofd not toiicii lite. 
 
 [n Moiii») oaHCH, the aiihjfct of Icgixlii.tir)!! having,' 
 two aspt'ctH civil and ciindnal eacli lt'gi.slatuii! 
 can deal witli the Mul>jc>(jt, one in itH purely criminal 
 ttspeot alone, the otlicif in itn purely civil aHpect, 
 and, in the latter caHc (at any rate in instanccH not 
 complicated hy tlie condition of tiiinjis at tiie date 
 of tiie I!. X. A. Act) Ity the addition of nanctiony 
 of a liighly punitive description. 
 
 The complication as to prior Icgitjlation arises 
 from tlie circumstance that before lS(i7 the legiHla- 
 ti\e ])o\vcr wa.s undivided, and tiii.s unity made 
 possihic what wa.s j)erhap.s natural and comenient, 
 namely legiMJation on variou.s topics without any 
 attempt to draw tin; line as to wiiether tlie law was 
 purely in the nature (jf criminal law, or purely in 
 the nature of a penal sanction for a civil wrong, or 
 whether it was of a mixed nature, partaking of 
 both characjteristics. And there may he ca.ses in 
 which it is impossible, owing to tiiis circumstance, 
 now judicially to decide that sanctions, whicli in 
 truth were wlioUy or in part penal sanctions in 
 respect of civil wrongs, are so in such sort that 
 they are withdrawn from the Criminal Law iii the 
 8en.se of the |}. N A. Act.* 
 
 Again, I contend that the power of the Province 
 to deal punitively for the enfoicemeut of its laws 
 continues as to all matters not *' criminal " in the 
 sense of the iUst clause at the date of tiie 15. N. A. 
 Act, notwithstanding any Dominion legislation. 
 Take a matter of property, rigiit or contract not 
 dealt witli as " crindnal " at tlie date of the M. N. 
 A. Act, and suppose that thereafter tiie Province 
 regulates or further regulates tliat matter, affixing 
 a. penal sanction to its law, the law is nnciuestion- 
 ably valid. Suppose that later the Dominion 
 should attempt to convert the matter into a crime 
 and apply another punishmont, would this nullify 
 the Provincial legi'daticjii ? Un(juc;stional)ly not. 
 The validity of the iJomiuion Act would (Icpend 
 upon the theory that, apart from tiie enforcement 
 , of the Provincial law by tlie Provincial sanction, 
 there was some criminal public; wrong re([uiriiig to 
 be restrained by Doiiikiion Criminal legislation, 
 and this theory would leave untouched the Pro- 
 
 • Note.— An Illustration of this cliuis of ciisc, anil an attempt to meet 
 the lUlficulty it presented, ni;iy be foniid in tlie liciiulninn Stalnte, 40 
 Vie., i-ap ;ir>, for wliieh tlie writer liapjiened tii lie responsilile. Certain 
 old laws (if I'puer Canada, Lower Canada and I'rinec Kdward Islind lain- 
 islicd lireailies of the c-ontrai't of wrviie liy iniprisoninent in lan^natre 
 wliiili, liavint; rogard to the nnity of the l,e(;i»lative power and tlie wide 
 HWi'i'ii of tlie enaetnients, iiiii;ht iierliaps lie deemed to make tlii^ oti'enee 
 eriminal. It was thininlit that tlie stiyma o'' I'linii' onjiht not to lie 
 attlxed to ordinary lueaehesof the rent laet of scrviei. any more tlian to or- 
 dinary lireaehes of othrr eontraets. At tlie same time it was lonsiilered 
 that ■ertaln lireaehes of contraet partook of a eriminal eliaiaeter and 
 ahonid lie so dealt witli. rmli'r tliesc eiieumstanei's tlii" Statute was 
 frami-d with this preanihle : 
 
 •' WiiKKF.As liii'aehi's of eontiaet, whether of .service or otherwise, are 
 in general eivll wrotiffs only and not eriminal in their natn.e, ami it is 
 Just that lireaehes of eontrai't of scrvici. slioiilil in p'lieral lie treated, 
 like otlnr breaches of contiari. as eivii wionys, and not as erimes, and 
 that the law should he aniendeil aeeoidinciy ; .\iiil. Whereas certain wil- 
 fui and malleious hreailies of eontiaet, involvinj,' danp'r to persons or 
 property or )j;nive public ii nveniencc. should be punislied as cri nes." 
 
 The Statute then jiiocei'ded to repeal, from and alter the lat of May, 
 1K7S. all parts of the old laws which made a violation of any of their sec- 
 tions criminal. The delay was I'Xpie.^sly ;.'iveii in order to enable the 
 Looil I,egislatmes, if they pleased, to pass fnrtliiT laws upon the subject 
 <if those ordinary lireaehes of (umtract which were not dealt with liy the 
 Dominion Statute, atllxiiiK. if they pleased, in'iial sanctions In respect of 
 the civil injury. Having aieomplished so far as it could this repeal, the 
 Statute proceeded to deal, as crimes, with certain wilful and malicious 
 breaches of contract involving danger to persons or property or L'rave 
 piiblii' inconvenience whii'li were declared to possess the characteristics 
 of crime. Hut It is obvious that had Parliament, however improperly, 
 assumed a Jurisdiction to treat even ordinary breaches of contract as 
 erimes, the question whether the Judicial dejiartmeiit could intervene 
 would have been of very diftlcult solution, .See, however. K4'nina v. 
 Frawley, per Sprasne, t:.,l..wli(i indicates that it is not all such oxorbi- 
 tances of jiower which would escape Judicial invalidiition; and there are 
 dk'ta elsewhere to the like elTect. 
 
 viiicial power to legislate, alli.xing a pcniil sanctiou 
 for the t;ivil wrong. 
 
 Ah to oireiiccs, it is said that the wilful violation 
 of any legislative A(;t is an oflince. Hut very early 
 in the first Session after Coiifedciation, tin; Domin- • 
 ion Parliament legislated on this head by wiiat is 
 now 11. S. C. ]~'.i, i»y the %')th section of which it 
 was proviiled tliat every wilful violation of any 
 Act of tlie I'tirliament of Canada, or of any Legis- 
 lature of any Provinct; of ( anada, wiiich is not made 
 an otl'enci! of some otiier kind, shall be a misde- 
 ni(;anor and puiiishabh; acconlingly. i'arliament 
 tlius, so far as it (;ould, recognized the power of the 
 Provincial Legislatures to make laws, the viola- 
 tion of which should be criminal ; and without in- 
 terfering witli cases in which a special sanction had 
 been applied, gave, as far as it could, a criminal 
 aspect to the wilful breach of I'roviiicial Acts. 
 
 I touch with reluctanct! upon the Privy Council 
 judgiiujiits in Russell v. Tlie (,)ueen and Tin; (.biccn 
 V. i lodge, venturing the ol)servati(iii that probably 
 owing to the absence of the senior counsel at tiic 
 opening of the argument, tlie attenti* n of the Court 
 was not, in the earlier case, ade(|Uately directed to 
 importiint considerations which would have atl'ected 
 possibly its decision, and almost certainly its 
 reasoning. For example, stress was not laid on 
 the great division of Provincial jurisdiction in- 
 volved in " Municipal Institutions," or on the vital 
 but sometimes neglected principle that neither the 
 (icneral nor tiie Local Legislature can attract to 
 itself ii jurisdiction, in matters assigned exclusively 
 to the other power, by the device of, in the tme 
 case, enlarging, or, in the other, restricting tlie 
 geographical area or conditions in respect of which 
 it proposes to legislate ; and that we must recog- 
 nize, as an inconvenience inseparable from the 
 Federal system, a lack of power anywhere to make 
 uniform regulations, co-extensive with the whole 
 Dominion, on certain subjects relegated to Provin- 
 cial authority. It seems to me, I confess, that a 
 fuller tlevelopinent of these considerations in the 
 earlier case would lia%e prevented serious eni- 
 liarrassments in dealing satisfactorily with the later 
 one. 
 
 But even from these judgments I draw support 
 for the general principle for which I argue. 
 
 Tlius in Russell v. The Queen, the Court finds 
 that, in its legal aspect, the Temperance Act in 
 question presents 
 
 an obvious and close similarity to laws which place re- 
 strictions on the sale or custody of poisonous drups, or of 
 dangerously explosive substances. These things, as well 
 as intoxicating liquors, can. of course, be held as property, 
 but a law placing restriction on their sale, custodv or 
 removal, on the grouiui that the free sale or use of them 
 is dangeroiis to public safety, and making it a criminal 
 offence punishable by tine or iniprisoninont to violate these 
 restrictions, cannot |)r(iperly be deemed a law in relati()n 
 to property in the sense in which those words are used in 
 the t)2nd section. What I'arliament is dealing with in 
 legislation of this kind is not a matter in relation to 
 property and its rights, but one relating to public order 
 and safety . . . Again, upon the same considerations, 
 the Act in question cannot be regarded as legislation in 
 relation to civil rights. In however large a sense these 
 words are used it could not have been intended to prevent 
 the Parliament of (Canada from declaring and enacting 
 certain uses of property, and certain acts in relation to 
 property, to be crir.iinal and wrongful. Laws which make 
 It a criminal offence for a man wilfully to set fire to his 
 own house on the ground that such an act endangers the 
 public safety, or to overwork his horse on the ground of 
 cruelty to the animal, though aifecting in some sense prop- 
 erty and the right of a man to do as he pleases with his 
 own, cannot properly be regarded as legislation in relation 
 to property or civil rights .... Laws of this nature 
 designed for the proniotion of public order, safety, or 
 morals, and which subject those who contravene them to 
 criminal procedure and punishment, lielong to the subject 
 of public wrongs rather than to that of civil rights. 
 
An<! tbc'ir Lonhhipn atl<l that tlioy have- ilircct 
 D'livtioii to criiiiiiiiil law. I'lii'lr l^in-ilxliipH point 
 out tlmt tliii inciilntital t'xirliing upon property iiinl 
 i-ivil riglitH involved in hiicIi If^iNliition citiiiiot 
 <l»!prive Parliament of itH Ifj^iHlativc powi-r ; ami 
 tlieu, alluding to tlu; arj^iitnent, that " if the Act 
 tciatc'd to criminal law, it was I'rovincia! criminal 
 law " and canio within yid>-Hcction \'> of ttcctiou U'2, 
 their LordHhips say : — 
 
 No (l()\ilit this argument would lie wfll fouiitli'd if the 
 priiitif),il matter Dttlii; Act could be Ijiou^jlit vvitliiii any 
 of these classes of siibiccts ; 
 
 that iH, was compri».!<l witliin olanHo Jt2. \ow all 
 this rtMHoidnj^ in entirt'ly <!on.si.stcnt with the piu- 
 positions I ailvance. Ihit again it is to In; roniein- 
 l)eied that wlu;n enguf^ed in the dillicult task of 
 adjinlicating on tiic ((Uostioiis raised in thu (,>ueen 
 V. liodge, iiho (Joint, though liiHulaindng any 
 intention to vary its former piopositionn, has 
 stated as 
 
 the f)riiicii)le which KussellS case and the case of the 
 Citizens Insurance ('(inipany illustrate, tli,it ^ul)jects whicli 
 in one aspect and tor one purpose tall within section (.12 
 may, in another aspect and tor another purpose, fall within 
 section <■)]. 
 
 This defiiution of the principle illustrated in 
 RusseH's case does not merely minind/e, it (juite 
 removes any emharrassrneut which that uane ndght 
 otherwise produce ; and the definition itself is not 
 merely harndess to tne ; it is useful ; for it is on all 
 fours with the view J advance as to the possible 
 jurisdiction of both F^egialaturcs, for certain (lill'orent 
 purposes, and in certain ditl'erent aspects, over th" 
 same subject. 
 
 I need hardly say that the deci.-ion in Hodge's 
 ease is in itself valuable, as supporting the Provin- 
 cial jurisdiction, by tlie emphatic declaration that, 
 within the limits of section i)'J, its authority is as 
 plenary ami as ample as the Imperial Parliament in 
 the plenitude of its power possessed and c(uild 
 bestow ; and that, witiun its liiidts of subjects and 
 area, the Local Legislature is supreme, and has the 
 same authority as the Imperial Parliament would 
 have had, under like circumstances, to confide to a 
 body of its own creation, authority to make by-laws 
 in order to carry its enactments into effect. .Ml 
 this is said to he the exercise of lawful authority 
 auxiliary to legislation ; and the decision is thus 
 very valuable on the second, as well as on the first, 
 branch of this appeal. 
 
 Now, I admit tiiat a possible result of the double 
 power I suggest might be a very inconvenient and 
 undesirable exposure to a double liability ; but 
 legislation of that character is very unlikely and 
 could be easily remedied ; and its possibility is a 
 danger infinitely less than that to which tiie other 
 alternative exposes us. In truth the general pro- 
 position that valid Provincial laws may be nullified 
 by Donnnion legislation is not merely dangerous 
 but fatal. It is utterly opposed to the spirit of the 
 Canadian Constitution. Our constitution does not 
 contemplate, save in certain specially excepted 
 cases, concurrent, or their complement, over-riding 
 powers ; it is in its essence a constitution of exclu- 
 dive enumerated powers, and the express over-riding 
 authority of Parliament is confined to certain con- 
 tingencies in matters of Education and Public 
 Works and to the subjects of Immigration and 
 Agriculture. These express provisions add force 
 to the argument, amply strong by itself, that there 
 is no large implied power on the part of the Domin- 
 ion 80 to over-ride Provincial legislation as to abro- 
 gate Provincial powers. Cases there may be, per- 
 
 haps, ill which tho pxeruitu of the powers of one 
 (legislature may have an incidental tendency t<) 
 narrow tlm freedom of action of another, but they 
 are obviou.sly to be contined to instanceft of iieces- 
 »ary implication, and to be restricted within the 
 narjciwent limits. Were it oliierwise, the Dominion 
 Parliament woidd be liki' .Aaron's rod it woidtl 
 soon swallow up the rest. For example, all that 
 would be necessary woidd be to go on making fresh 
 crimes, and with eaidi fresh crime created a power 
 would be abstracted from the Provincial jurisdic- 
 tion. 'J'his would never do. 
 
 Now, if tiie result I propound follows when the 
 Province acts first, it must follow even thougli tho 
 ProviiuH! does not act lirst. It can make no dilUr- 
 ence which act.s first. The same principle must 
 rule, the same results ii'ust ensue. It follows then 
 that the Province can, altogether regardless «i 
 Doniinion aiition, whether preceilentor subsei|ueiit, 
 regulate all atl'airs within the lange of its power, 
 by laws, to which it may attach the sanctions of a 
 tine or penalty, payable even to the State, or of 
 imprisonment at hard labor, and that, either abso- 
 lutely or as a further sanction for the payment of 
 the line sanctions these which, for many of the 
 consetjueiices to the individual and for many of the 
 grounds of distiuciiio!! generally taken, make the 
 transaction a ci ime ; ami which, therefore, if you 
 say they make it a crime, shf)W that there may be 
 in truth " Provincial Criminal Law " as so often 
 declared. ^\nd so, of v'ourse, in a certain sense 
 there may, in respect to Municipal Institutions and 
 the Police power; thotigh, in regard to the applica- 
 tion of a penal sanction to a law relating to pro- 
 perty ami civil rights, I submit that the remark of 
 Stephen applies, and that such a law is not properly 
 to be called " criminal law," at any rate under our 
 constitution. 
 
 I have said that the sanction in these cases may 
 be one exigible by the State, indepen<lent of the 
 individual aggrieved ; for the enforcement of laws 
 regulating civil rights is not merely, or perhaps 
 even chietly, a private object ; the prosperity, even 
 the stability, of the State nuiy, and does, depend 
 upon it ; and though as a rule it is adecjuately 
 secured by private suit or prosecution ; though as a 
 rule State intervention would be absurd or harmful; . 
 yet all this is for the Legislature, not for the 
 la\vyer, since it is conceivable that a public sanction 
 enforced in the public interest may, in some cases, 
 be required. 
 
 But this appeal does not need a decision so broad 
 as my argument up to this stage would allow, as is 
 easily to be seen upon an analysis of the provision 
 in question. 
 
 The thing regulated here is vei y clearly only a 
 contract or dealing in connection with a particular 
 trade or business ; nor does the regulation profess 
 to deal at all with a public wrong such as is com- 
 moidy called criminal. It touches the contract for 
 the delivery of milk to a cheese factory to be manu- 
 factured. It creates a term or regulates a provi- 
 sion of that contract, namely, that unless there 1)6 
 a written notice by the deliverer showing that the 
 ndlk is skimmed the ndlk delivered must be un- 
 skintmed. It provides facilities for the ascertain- 
 ment, at the instance of the receiver, of a breach of 
 its prohibition, and it attaches the sanction of a 
 fiwe, payable one-half to the informer and one-half 
 to the nmnicipality' which sanction is enforced by 
 the further sanction of imprisonment for a limited 
 time or until payment of the fine. One is re- 
 minded of the examples put byAustin, vol. 2, p. 140; 
 
a am ('i)M(letiiiii 'I to mtnre a Ikiii'^l' wIikIi I ilrtaiii fntin 
 till; ovvriur. to make satisfaction (nr a l)r<' icli of < niitrai t, to 
 pay ilainaKCs tor ati assault to the injuti'd party, or to iiay 
 a lull' (or tlic sarnr otlcnct;. Thi- sarw tion wliii li attaclics 
 upon nit.' in this the tirst staK<' is an oliliK.ttioii, an ohli^a- 
 tion to deliver the house, or to pay the damages or line. 
 If I ri'fiise to perform this iihliiiatioii I may iinur a turthiT 
 iiliiiKation, lor instance, an ohliH'ation to pay a fine nr to 
 sutler imprisonment. 
 
 Murk how he tretvtH it hh ho uxttiiorilinary 
 iniitttM' that tilt' HiiMctioii of i<ii|iriitoni)ieiit Hhoiilil 
 be attiiulKMl to piirt'iy <;ivil wr.di^'H. 
 
 Again, tho c'(imn(!(|ii< iieu of tlu; l)rna(.'li \w.ri' is no 
 piihlii: injury. It i'H that whcrtiiiH the " patioim " 
 bIiduIiI ilivide tlie pro'^et'ds of tins ehoene in propor- 
 tion to tht) poiindH of milk they supply, ami the 
 fii.'tory HJionlil lie paiil according to tiie poiiiids of 
 cin'(!He it pnidiicen, tlu! dt'fendant gcjts a larger 
 sliari; than, an lictweeii liitiiHelf ami these otiiei'H, he 
 should receive ; and thiH hocause he has deprived 
 hirt iiulk of a portion of its cream. This is a private 
 and civil wrong, Noi' does the Legislature d«!al 
 with it as p'.ihlic. Kor looked at in tliat aspect, 
 you slioiilil find th<! dtdivery of skimmed milk 
 ahsoliittdy prohiliitiMl ; you .should find its accept- 
 ance alike proliii)ited. Kiityoii find no prohi))ition 
 of the at ceptance ; and you tiiid tliat a written 
 notice of the fact of tiie skimming renders the 
 delivery harmless. 
 
 The case was one in which it was easy to comtnit, 
 and diHiciilt to detect, a hreacli of the regulation ; 
 for wliicii the ordinary sanctions were deemed in- 
 ade(|Uato ; in respect of which, therefore, it was 
 thought tiie contract re(|uired the interposition of 
 the Legislature hy :pgulati(jn enforced hy a penal 
 sanction ; and the Province acted strictly within 
 its powers. 
 
 Look at the Tnsuraiice Act, where tlie contract 
 between insurance companies and the insured is 
 regulated ; where clauses are introduced by Statute; 
 where clauses are erased by Statute. All this has 
 been decided by the I'rivy Council to be well within 
 the power of the Legislature!. Suppose that later 
 it were deemed expedient to add to the sanctions 
 already provided for theobservauceof thislnsnrance 
 law a clause inflicting fine or penalty on a company, 
 or imprisonitient on an officer who might attempt 
 to violate its provisions, who can say that such a 
 clause wouM make the subject criminal within the 
 meaning of the Dlst clause, so that such a regula- 
 tion, however absur<l or inappropriate it might be 
 thought by jurists, would be beyond the competence 
 of the Legislature ? 
 
 The mere fact tlrat any informer can complain, and 
 that thus the element of punishment independent of 
 the party aggrieved is introduced is immaterial ; 
 first because it is clear that the limitation to the 
 factory of the power to apply the tests involves a 
 practical limitation to the factory of the power to 
 complain ; and, secondly, because, as I iiave 
 already pointed out, it being for the interest of the 
 State that its regulations and laws should be observ- 
 ed, the State has, however imprudent or nnsound 
 may be its exercise, the power of undertaking the 
 punishment of breaches of those laws, either by 
 itself or through the medium of an informer. 
 
 I must submit that the judgment of the learned 
 Chief Justice below is based upon a principle of 
 construction entirely opposed to that which really 
 applies. As I have already argued, we should, if 
 we strain at all, strain to maintain the law ; but 
 this judgment rather seems, if I may say so, to be 
 a straining to destroy the law. The judgment 
 <leclares that — 
 
 The primary ohject of this .\rt is to create new offence* 
 and to punish them liy tine. ,iiid. in def.iull ol p.iyment. Iiy 
 iniiirisonnient. .ind this i', its true nature and charaiter. 
 
 '('he result sriuKht to lie olit. lined thereliy is no doiiht lair 
 dealing, and this is the result sou|{ht to lie olit.iined i)y 
 niakiiiK the olit.iiniiiK < hattels, monev or \aliial>le securi- 
 ties hy taUe preteiu( s with intend to defraud an otteiice 
 piinisfialile by imiirisonment. 
 
 It is sought liy this .\( t tn bring about the result that 
 persons contr.ictiiiK to deliver milk to a cheese or Initter 
 manufactory will be tleterred Ironi dishonesty in carrying 
 out siiili contr.icts, and in this way this leuisi.ttion h.is re- 
 lation to i)roiierty an<l livil ri({lifs, ir)ntracls and the en- 
 loro'ineiit ot tlieni coming clearly within lliat delinition. 
 
 Hut its rt'i.ilion to " propi'rty .ind ( ivil rights ' is much 
 iiioie remote tli.in its relation to " criminal Taw, ' and it is 
 under the hitter class tliat it must be raiiK^d. 
 
 .And coming, as I iiiu-.t hold it to come, within "criminal 
 law," it cannot come within matters of a purely local or 
 private nature. 
 
 This, I must on 'ess, seetns to me to approach an 
 inversion and a perveision <»f the Act. It is ac- 
 knowU'dged that the A(;t has a rtdation to property 
 and idvil rights ; it is ai:kiiowl»Mlged that the result 
 sought to be obtained liy the Act is to deter per- 
 sons from dishonesty in carrying out their con- 
 tracts ; but it is saiil tliat after all the primary 
 object is tilt! making of a new otl'ence, ami that the 
 proximate relation is to criminal law ami not to 
 civil rights. The mc-ans are tlius siibstitutetl for 
 the end. The primary object in truth is the regu- 
 lation of the contract, the prtivision for fair ilealing, 
 the prtihibition of unfair dealing ami the applica- 
 tion of tests for the ascertainment of the ilealing ; 
 ami, incidentally to all this, as a means for securing 
 all this, all wiiich admittetUy is within tiie power of 
 the Legislature, sanctions are attached for breaches 
 of the provisions. These sanctions are also atl- 
 mittedly wi.,hin the power of the Legislature. And 
 thus, both regulations ami sanctions being within 
 its power, the whole is valiil. 
 
 It seems to nie that on tlie other theory the 
 Statute of Frauds might stand coutlemueil by its 
 title, as a ilealing with crime. It is known as an 
 Act for the prevention of fraud and perjuries. 
 What can souml more like "criminal law" than 
 that? liut when you look at the Statute what 
 can be more clear than that it is a law regulating 
 civil contracts in such a way as to diminish the 
 risk of the evils of fraud ami perjury? Suppose 
 that to the breach of sucli a law some penal sanc- 
 tions were attached, it would yet remain under our 
 constitution a Provincial subject. 
 
 1 submit tiiat tiie judgment of Mr. Justice Street 
 more accurately applies the true principles when he 
 says : 
 
 The aciiustniont of tiie basis ii|)oii wliich tlie dealings 
 between the managers of cheese factories in the Province 
 and the persons siipplyinff milk to them should take place, 
 and the devisinc; of the best means of securing the former 
 against unfair (lealing on the part of the latter seem to 
 fall well within the scope of the description of " property 
 and civil rights of the Province," and if tlie punishment 
 imposed liad been confined to pecuniary damages for tlie 
 loss sustained there -ould be little doubt as to the validity 
 of the Act. We ha\ e here, however, not only a law tor- 
 bidding the deliveri of skimmed milk to the manufacturer, 
 but tiic imposition on the person delivering it of a punish- 
 ment upon his conviction, before a Justice of the Peace, of 
 a violation of the provisions of the Act, and it is urged 
 that this is a transgression upon the power exclusively re- 
 scfrvcd to the Dominion Parliament of dealing with the 
 "criminal law" of the Dominion. 
 
 There are good reasons for holding that the Provincial 
 Legislatures could not, by the mere act of passing a Statute 
 forbidding the doing of something, already an offence, but 
 affecting iiroperty and civil rights in the Province, confer 
 upon themselves jurisdiction to inflict a new punishment 
 for the offence, and iustif', .t upon the ground that they were 
 merely enforcing their own Statute. The foundation for 
 the jurisdiction claimed would be defective because of its 
 dealings with matters of criminal law. But when the 
 l?ritisli North America Act was passed, it was not an 
 
uffcnce, elthjT at romimin law or l>y Statute, lor a person 
 to (K-livcr skiiiiiiicil milk vvitlioiit ri'viMlliiK tin; lait, (Sec 
 Utiriihy V. Hollctl. id M. \ W. On, in wlii li tin- old Stat- 
 tiilfs uixin kiiidrc'l iiialtcrs arc iiuotcil. I I do not mcaii 
 to sav tfiat tlii". is the only tent to l)i- apiilird. hut it i U-ars 
 till- ground of the initial diriii.ulty and Iravc-. if open to us 
 to (.(Uisiilcr flic real charaiti-r of tin; IcKiHlation which is 
 atlatkfd, that U^tfislatiou l»:iiiK within the Iclternot iiowci!* 
 of the la'ifislature under thf Constitutional Ait Is it an 
 Act constiiutiiiK a lu'w ( riinc tor the purpose of i>unHhinf{ 
 tliat (lime in the interest of puhlic nniraluy '■ »'r is it an 
 Ai f for the ii'jjidation of the de.dinjfs and rii^lits of cheese 
 ni.ikers anil their I itroMs. with punishments imposed for 
 the iiroteitioii of the former .' II it is found to tome 
 under tlic former head, I think it is hail as (UMliiiK with 
 crimin il law, if under the httter, I think it is K**od ,is an 
 exercise of the rights conferred on the Province hy the 
 t;2nd section of the Hritish North America Act. An exam- 
 Illation of the .\ct safislies me that the latter is its true 
 i)li)ect, intention and ch.iratter. It is not ni.ide .in otfeiue 
 to deliver skimmed, sour, tainted, or adulterated milk to 
 the cheese maker, ,is we should expect lo lind it an .\ct 
 ilitended lor the puhlic interest ; the offence consists in 
 doiiiH; so without notifviiiK the f,ict to the cheese maker; 
 lie is the person iniiired hy the hreach, .iiid intended to he 
 he protectiui hy llie notice. It is true that the cheese 
 maker is not necessarily reipiired to he the inform, iiit upon 
 a jiroseciitioii unili;rthe .Act, hut he is the only person who 
 is aulhori/ed to compel the persun who li.is delivered the 
 milk to siihmit his cows .uid his milk to the tests provided 
 l)V the .Act. These tests appirar to he the only practicahle 
 means in most cases of ol)t.iininn proof of the offence. 
 They are, at all events, the means pointed out hy the 
 St.itute, and it the offence cre.ited were intended to he 
 puiiislutd in the interests of the puhlic and not of the 
 cheese maker, we should have e.xpected lo find the nu aiis 
 of proving it placed in the hands of the officers of piil)lic 
 justice, and not contiiied to the persons auaiust whom the 
 offence is alleRed to have heen committed. 
 
 KindinK then as I do in this St.itute. tliat llie punisli- 
 iiients imposed hv it are directed to the eiitorcement of a 
 law of tlie I'roviiu iai I.e^ishiture relating to I'roperty and 
 Civil rights in the rroviiice: that tiie oltciiccs created hv 
 it formed no i)art ot the criminal law previously existing: 
 and that the ai)parent oiiject of the .Act is to protect private 
 rights than to punish pul)lic wrongs. 1 am obliged to differ 
 from the conclusioMs .It which the I'hief justice has arrived 
 and to say that in my judgment the conviction should he 
 affirmed, and the motion dismissed with costs. 
 
 One word upon tlie siigi,'cstion of tlie learneil 
 Jiiil^o that if the piiiiisluiient iinposeil find heen 
 ODufiiied to pecuniary damages tliei'o ooiild he little 
 doubt as to the validity of the Aet. That sui,'ge8tion 
 i.s uni|ueHtional)ly true; hut I sulunit that tlie indis- 
 piitahility of the powef of the I'roviiicte to alKx a 
 penal nanctioii removes any elements of douht 
 wliieii, but for tluvt power, the introduction of .such 
 a sanction iniglit have imported. 
 
 Neither of the judgments suggest any diliiculty 
 arising out of existing Dominion legislation ; but 
 it is contended for the respondent that the same 
 matter was dealt with liy i'arlianient, prior to the 
 passing of tliis Act, under the Adulteration Act, and 
 that this affects the validity of the Provincial Act. 
 I have ah'eady argued tliat no such dealing could 
 destroy the power of tlie local Legislature to afiix 
 a penal sanction to its laws ; but it cannot l)e said 
 iiere that the ground was covered by the Adultera- 
 tion Act, because, firstly, that Act deals with tlie 
 case of selling or exposing for sale, Tiiis is not 
 that case. It is tlie case of delivery to a factory 
 for manufacture. Secondly, the Adulteration Act 
 makes it an otf'ence to sell skimmed milk to a pur- 
 cliaser unless the purciiaser has asked for skimmed 
 milk, and, having so asked, iias been supplied out 
 of marked vessels ; but this Act deals witli tlie case 
 of supplying skiniined milk to a factory irrespective 
 of any re([uest, without a written notice of the fact 
 that the milk is skimmed. Tiiirdly the Adulteration 
 Act deals with a case of supposed public wrong to 
 a consumer, and, of course, it may be that an infant 
 or an invalid consumer might seriously sufl'er in 
 health by a lireach of its provisions, and it may 
 perhaps be fairly said that a public wrong would 
 be thus created ; l)ut here the wrong is simply a 
 
 lofli nf nion«y to the fiiutory ami the noi|iiirc)nunt 
 of iin iinri'inuneiaU'd value by the di'livtMi-r. .\ntl 
 foitrtlily, the hoiiiinioii lian itself legiHlatiMl thii 
 very y«'ar by .VJ N'ie., cap. A',\, upon the Hiibjtct 
 matter of thcj I'rovineinl .\ef. tlioiigii fiot in exact 
 duplication of its provisionit. It in not material to 
 analyze thin late .Act, I cite it only as a Icgislativn 
 interpretation of the .\diilteration .Act, clearly 
 .showing, by the mere fact of its enactment, that 
 that Act had not already dealt with tliu <|iiestioii. 
 In the general result I nubmit that I have estab- 
 lished tliat the principal .Vet is within the poweiH 
 of tlie local iiegi.slature, and, therefor.', that the 
 coiivii'tion was good, 
 
 1 now come to the second point, arising on the 
 Act autliori/.ing the appeal, and this I Hiibniit is, in 
 ell'eet, settleil by the other, N'oii lind in the saiiK! 
 short Hubsection of the Ulst clause the plirases 
 •' criminal law " and "criminal procedure" used 
 in an «!iiuiiieiatii)ii of powers, " L'l iininal " must 
 have been used in the same weiise in both phrases. 
 The " eriiniiial procedure " of the cla.'se is the pro- 
 cedure required to enforce the "criminal law" of 
 the clause. Its lixteiit is limited by the extent of 
 that law. If, tlitiii, this be not a " (irimiiial law '' 
 within the !)lst clause, neither is tlie procedure for 
 enforcing it " criminal proci;diire " within that 
 clau«e. 
 
 The obvious intent was to provide for the crea- 
 tion of a coinmon criminal law, executed by a 
 common procedure, all over the dominion ; but 
 there was no intent to hand over to the general 
 Legisliture, entrusted only with common concerns, 
 an authority, still less the exclusive authority, to 
 create j>rocedure for the execution of purely local 
 Liws. Such a notion runs counter to the great 
 s^lieme of the .\ct. Hut it does more -it is even 
 fatal to it ; because it would leave tiie Provincial 
 Legislature entirely helpless to make effective those 
 laws which, notwitlistanding, that Legislature alone 
 has the power to enact, Tliere would be much 
 more than a confusion of powers, there would be an 
 absolute defect of power. Kacli Province might 
 liav(! dillerent views as to the legislation proper to 
 be passed upon these subjects. Such diversities of 
 view existed, were expected to continue, and were 
 intended to prevail ; and this was the very ground 
 for the assignment of these matters to local author- 
 ities. Mut to say that, after all, the local view is 
 to have force or not, according as the Dominion 
 Parliament sliall choose to provide procedure or 
 not, is in ell'eet to render necessary the saiuitioii, 
 the active sanction of the general Legislature to 
 every local law of this nature. It is more potent 
 than a veto, for its negative result is produced by 
 simple inaction. Its effect is, at best, to entangle 
 inextricably the machinery of legislation, and, at 
 worst, to completely cripple it. It is more confus- 
 ing than a case of concurrent powers, because 
 neither Legislature can, by itself, do anything 
 effectually. It retiuires the action of both to move ; 
 one is to say what shall be the law, but tlie other is 
 to say how, and therefore is also to say whether 
 that law shall be executed. Tiiis would be a con- 
 stitutional monster, whose natural fruit woald be 
 abortions. 
 
 I submit, then, that it is absolutely clear that a 
 construction which would apply the exclusive 
 " criminal procedure " power of the lUst clause to 
 the case of a local law would be a violation and 
 frustration of the Constitutional Act. 
 
 The procedure power is, if my contention as to 
 the true nature of the principal Act be correou, 
 covereil expressly by tiic words " procedure tu 
 
10 
 
 III ex /larfi' Duncan, roported in tlie same volume 
 at page .'{00, Jiulge Diinkin said: 
 
 Every local LcKislature, without let or iiiiulrance from 
 Farliamer t — and therefore with(jut need <jf aid from Parlia- 
 ment -c.i.n impose piinislii. 'U by fine, penalty or im- 
 prisoninent. for enforcing certain laws which it alone can 
 make. To liold that while it can freely qualify infractions 
 of such laws as punishable, and assign to each its measure 
 of punishment by fine, penalty or imprisonment, the 
 procedure requisite in order to the infliction of such 
 punishment (as being essentially procedure in a criminal 
 matter) must be sucli onlv as Parliament mav see fit to 
 I)rovide, would be to hold the doubly untenable doctrine 
 that Ion the one hand) every local Legislature can at will 
 create certain crimes and assign certain criminal punish- 
 ments, and that (on the other hand) Parliament can at 
 will admit such crimes and punishments within, or exclude 
 them from, the range of the procethire needed to repress 
 such crimes by real infliction of such punishments. 
 
 Whatever infractions of law, whether as to matters of 
 Dominion or Provincial legislation, Parliament sees tit to 
 designate as crimes, it, and it alone, can so declare, and as 
 such punish, and to that end regulate procedure. What- 
 ever infractions of any Provincial law coming within the 
 purview of this y2nd section Parliament may not see fit 
 thus to deal with, the interested Province may punish by 
 tine, penalty or imprisonment, but its so doing does not 
 make the offence to be thus punished a crime, nor the pro- 
 cedure laid down in order to its i)unishment procedure in 
 a criminal matter. Cn the contrary, such whole matter 
 must remain a civil matter, within what is here the true 
 meaning of these respective terms. 
 
 In I'age v. UrilKtli, in tlie same volume, at page 
 .SOS, .Iiidge Sanborn said : 
 
 civil matters," which must i-eceive an interpreta- 
 tion large enough to embrace all procedure for the 
 enforcement of I'rovincial laws of the nature in 
 (juestion. 
 
 But, in truth, save for the curious partition of 
 power to which 1 have alluded, we would not liave 
 seen " procedure " named at all. It is obviously 
 covered l)y or implied in more tlian one of the 
 general powers given in this connection. The ad- 
 ministration of justice includes it, the power to 
 make laws on any particular subject embraces it so 
 far as tiiat 8u))ject is concerned, the power to affix 
 sanctions to laws involves it— it is a matter ancill- 
 ary and essential to the main power. 
 
 Who can doubt, for example, tiiat the power to 
 establish additional Courts for tiie better execution 
 of the laws of Canada implies power to prescribe 
 piocedure in these Courts, even altiioiigh the laws 
 to be executed deal with civil matters '! Wiio can 
 doul)t again that the power to legislate upon a par- 
 ticular subject matter includes the ne';es8i',ry pro- 
 cedure for the execution of the law ? No one ; at 
 any rate after the decision in Cusliing v. Dupuy, a 
 App. Ca. 409, where the Privy Council said : 
 
 Procedure must necessarily form an essential part of any 
 l.iw dealing with Insolvency. It is, therefore, to be pre- 
 sumed, indeed it is a necessary implication, that the 
 Imperial .Statute in assigning to the Dominion Parliament 
 the subjects of Bankruptcy and Insolvency, intended to 
 confer upon it legislative power to interfere with property, 
 civil rights and procedure within the Provinces so far as a Had the Provincial Legislature power to provide the 
 
 . • -. -.■-1..^ ..u...... .1 procedure for enforcing the penalties incurred under the 
 
 License Act, ^4 Vic. c. 2? if it had, has a right of apiieal 
 been grantedljy said Act? .As resjiects the first ciuestion I 
 think the Local Legislature had such ixuver. When the 
 jiower is given by tlie B. N. A. Act to the Parliament of 
 the Dominion to provide procedure in criminal matters. I 
 understand reference to be had to the general criminal 
 law, comprised in the Criminal Statutes of the Dominion 
 and in the common law. This view is confirmeil by the 
 Criminal Procedure Act. which has no leterence whatever 
 to local penal laws, but to laws in force throughout the 
 Dominion. 
 
 And again at page .SIO : 
 
 The B. N. A. .\ct gives the Legislatures of the severa] 
 Provinces power over shop, saloon and tavern licenses, and 
 to impose fine, penalty or imprisonment for enforcing any 
 law of the I'rovince made in relation to any matter coming 
 within any of the classes of subjects enumerated amongst 
 their [lowers. Where power is given by Statute to impose 
 a iieiialty it implies power to enforce ii. (Dwarris on 
 Statutes, p. 23.) 
 
 The B. N. A. Act must be understood to have given this 
 power to the several i'rovinces. Any other view would 
 give the Legislature of a Province less power than a muni- 
 cijiality which such legislature can create. It would be 
 contrary to the manifest intention of the Imperial Parlia- 
 ment in allocating tlie respective powers which each Legis- 
 lature should possess. 
 
 See also tlie case of Cote v. Chauvean, in the same 
 volume at page lii 1 ; and I may in the same connec- 
 tion refer to the language of (/'liief .Justice Ricliaids 
 in the Queen v, IJoardman, .'iO U. ('. Q. J{. TmJ^, and 
 also to the Queen v. Lawrence, 4.S IJ. C. Q. 15. I(i4. 
 
 It is also to be remarked that tiie appeal to this 
 Court, and subseijiiently to the Privy Council, in 
 tite case of tlie (Jiieen v. Hodge took place under a 
 Provincial Act entirely analogous to the one now 
 attacked. No suggestion was made from bench or 
 bar tliat that Act was of d'jubtful authority, and 
 yet upon the present argument The (^ueen v. 
 Hodge never could have got beyond the Court of 
 Queen's Bench. 
 
 Again, this Act providing for an appeal is un- 
 ci uestionably the constitution ef a Court of Crim- 
 inal Jurisdiction, and is thus, so fivr at any rate, 
 within the admitted competence of the I'rovincial 
 Legislature, even tliougli the jurisdiction s'lonld 
 embrace Dominion criminal law, or law whose pro- 
 cedure was Uominion criminal procedure. Indeed 
 
 general law relating to these subjects might affect them. 
 Their Lordships therefore think that the Parliament of 
 Canada would not infringe the exclusive powers given to 
 the Provincial Legislatures by enacting that tlie judgment 
 of the Court of (jueen's Bench in matters of Insolvency 
 should be liiial and not subject to the appeal as of right to 
 Her Majesty in Council allowed by .Vrticle i.i/S of the code 
 of Civil Procedure. 
 
 The principle of this decision has the mo3t direct 
 and ol)vious application in favor of the Provincial 
 power here. 
 
 I contend, then, that there is ample power, express 
 01 implied, to provi.le for the procedure tliougiit 
 fitting in respect of all laws within Provincial 
 authority. 
 
 Curiously enough almost all the decisions v.'hicli 
 touch this point are to lie found in the Queliec 
 Courts, and I will (inote the view of tiiree .Judges 
 of great al)ility, who in separate cases came to the 
 conclusion wliicii I am now suggesting. 
 
 In Pope V. Criltith, reported in *2 Cartwriglit's 
 cases on B. N. A. Act, Judge Ramsay, at page 295, 
 said : 
 
 Whatever may be the definition of a crime, I would 
 remind those who lean too much upon deHiiitions, of their 
 danger; it will not be denied that, in one sense of the 
 word, the act of which appellant is accused is a crime ; 
 but it is equally plain that it is not a crime in the sense of 
 sul).-sec. 27, sec. 91, of the B. N. A. Act. Now it the sig- 
 nification attached to the word "criminal" is restricted, 
 when referring to law in this sub-section, why slioulu it be 
 used in a different sense when applied to procedure .'' It 
 cannot be i>resumed that in one short paragraph, particu- 
 larly a paragraph of an enumeration of powers, the Legis- 
 lature should have in tended to apply two ditferent meanings 
 to the same word, especially when by doing so they would 
 be transferring the legislation with regard to a purely local 
 matter to Parliament. The rule is all the other vyay. 
 Sub-section 16 of section 92, reserves to the local Legisla- 
 ture generally, the r.glit to make laws affecting all matters 
 of a merely local or private nature in the Province. What 
 can be more local than the procedure to give force to a 
 local law } It this view be correct, it is not a question (if 
 clashing, and the provision of section yi, giving superior 
 authority to the enumeration of the powers of Parliament, 
 docs not apply. The powers are perfectly distinct, i'arlia- 
 nient makes the laws of procedure affecting the criminal 
 law which it enacts, each of the Legislatures make the 
 laws of procedure affecting the penal laws which they 
 enact respectively. I am, therefore, of opinion that the 
 appeal does not lie under the Dominion Act, 32 and 33 Vic, 
 c. 31, s. Cs. 
 
11 
 
 I think it iiuvy well he douhted whetlier the Domin- 
 ion Legislatuie eoiild exclmle any Court so estah- 
 lislieil from the exercise of its jurisdiction. 'J'he 
 D'ind clause gives to tlie Provincial Legislature tiie 
 exclusive power to create courts even of criminal 
 jurisdiction. A suhse(|uent clause, it is true, 
 authorizes the Dominion Legislature to create addi- 
 tional courts for tlie better execution of its laws. 
 Hut docs this, or does tlie procedure power imply 
 a right to iniiihit the Provincial court, lawfully 
 created, from exercising its jurisdiction, at any rate 
 where an appeal is created ? I submit not. If there 
 be su^li a right I 8ul)mit that it must be exercised 
 by express negative words precluding the appeal, 
 ill default of which wortls the court must act upon 
 the law, basing its procedure on the general prin- 
 ciples of administration, or on Jie nearest analogous 
 rules. Hut there is here no sucli negative action. 
 On tlie contrary, all that lias been done by tlie 
 Dominion Parliament is in tlie sense of recognition 
 of the appellate courts of criminal jurisdiction 
 created by the local Legislatures. There is more 
 than the al)sence of negation. There is positive 
 recognition and adoption. I refer to tlie Summary 
 Convictions Act, U.S. C. cap. 178, which is applied 
 by the third section to 
 
 Kvery case of offence or act over wliicli tlic Parliament 
 of Canada has legislative authority, aiul lor wliicli tlu; party 
 is liable on sununary conviction to iini)risonnient, fine, 
 penalty or other i)unisliment. 
 
 The 76th section under the heacl of Appeals pro- 
 vides: 
 
 I'niess it is otherwise provided in any special Act under 
 which a conviction takes place or an Order is made by a 
 Justice, or unless some other Court of Appeal liaviiig juris- 
 diction in the premises is provided by an Act of the 
 Legislature of the Province witliin which such conviction 
 takes place or order is made any person, etc., may api>ly 
 in Ontario to the Court of General .Sessions of the Peace. 
 
 etc. . . . .And if any other Court of Appealis provided 
 in any Province as aforesaid the .Appeal shall be to such 
 Court. 
 
 And the 77th section provides : 
 
 Every right of appeal shall, unless it is otherwise 
 provided in any special Ac*, be subject to tlie conditions 
 tollowing, that is to say, etc. 
 
 I may (bserve further that tlie lOHtii section 
 
 which provides that : 
 
 No return purporting to be made by any Justice of the 
 Peace under this Act shall be vitiateii by the fact of its 
 including by mistake any convictions or orders had or 
 made bef^ore liim in any matter o'-er which any Provincial 
 Legislature had exclusive iurisdiction or with respect to 
 which he acted under the auJhority of any Provincial law, 
 
 is a very fair iiidioation (of a nature whieii has 
 been often judicially deciared to be wortliy of 
 attention in the consideration of cases of doubtful 
 legislative power), that in tlie view of the Dominion 
 Legislature tlie procedure in respect of Provincial 
 oHences was not Dominion but Provincial. It must 
 not be forgotten that, ulthougli this (|uesti<)n 
 happens to lie raised upon an appeal to-day, yet it 
 must be decided upon gromuls applying to every 
 stage of tlie procedure U.v the execution of this 
 law. It is not the last step only ; it is the very 
 rirst step that is barretl by this objection. If this 
 objection holds good nothing whatever can be done 
 towards the execution of the law unless the 
 i)oniiiiion oliooses to provide procedure ; and thus 
 as I have pointed out the incredible result would 
 be readied that a Sovereign legislat; ve power is 
 left absolutely impotent, being dependent upon 
 another legislative power for the machinery with- 
 out which its law must remain inoperative. I 
 submit that a conclusion so monstrous should be 
 rejc!cted ; and that, both laws being valid, the 
 Order of the (^bieen's Heneh should be reveised, and 
 the conviction inaintained.