R. v. Wholesale Travel Group Inc. (1991), 49 O.A.C. 161 (SCC)
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The Wholesale Travel Group Inc. (appellant) v. Her Majesty The Queen (respondent) and The Attorney General for Ontario, The Attorney General of Quebec, The Attorney General for New Brunswick, The Attorney General of Manitoba, The Attorney General for Saskatchewan, The Attorney General for Alberta, Ellis-Don Limited and Rocco Morra (intervenors)
(21779)
Her Majesty The Queen (appellant) v. The Wholesale Travel Group Inc. (respondent) and The Attorney General for Ontario, The Attorney General of Quebec, The Attorney General for New Brunswick, The Attorney General of Manitoba, The Attorney General for Saskatchewan, The Attorney General for Alberta, Ellis-Don Limited and Rocco Morra (intervenors)
(21786)
Indexed As: R. v. Wholesale Travel Group Inc. and Chedore
Supreme Court of Canada
Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci, JJ.
October 24, 1991.
Summary:
Wholesale Travel was charged with five counts of false or misleading advertising contrary to s. 36(1)(a) of the Competition Act. Wholesale Travel pleaded not guilty. Before evidence was heard, the trial judge ruled that ss. 36(1) and 37.3(2) violated ss. 7 and 11(d) of the Charter of Rights and Freedoms and were, accordingly, of no force and effect. The trial judge dismissed the charges. The Crown appealed.
The Ontario High Court allowed the appeal. The court held that the impugned sections did not violate the Charter, and remitted the case to the Provincial Court for trial. Wholesale Travel applied for, and obtained, leave to appeal.
The Ontario Court of Appeal, in a judgment reported 35 O.A.C. 331, Zuber, J.A., dissenting in part, allowed the appeal in part. The court held that ss. 37.3(2)(c) and (d) violated s. 7 of the Charter and were of no force and effect. The court held that ss. 37.3(2)(a) and (b), in combination with the words “if he establishes that” in s. 37.3(2), violated the presumption of innocence under s. 11(d). The court stated that ss. 37.3(2)(a) and (b) were constitutionally valid if the offending words “if he establishes that” were struck from s. 37.3(2). The court ordered a new trial. Wholesale Travel and the Crown both appealed. Wholesale Travel claimed the Court of Appeal should have declared the whole legislative scheme invalid rather than only striking the offending words from s. 37.3(2). Alternatively, Wholesale Travel claimed that s. 7 of the Charter required the Crown to prove subjective intent or wilful blindness with respect to the alleged falsity of the advertisement rather than requiring the Crown to establish only a lack of due diligence. The Crown challenged the Court of Appeal’s conclusion regarding the constitutional validity of the impugned sections.
The Supreme Court of Canada dismissed the accused’s appeal and allowed the Crown’s appeal in part. The court held that ss. 37.3(2)(a) and (b) violated the presumption of innocence (s. 11(b)), but were reasonable limits prescribed by law under s. 1. Sections 37.3(2)(c) and (d) violated the right to life, liberty and security of the person (s. 7), were not justified under s. 1 and were, accordingly, struck down under s. 52 of the Constitution Act as having no force and effect.
Lamer, C.J.C. (Sopinka, La Forest and McLachlin, JJ., concurring), agreed that ss. 37.3(2)(c) and (d) were not justified under s. 1, but also found ss. 37.3(2)(a) and (b) to be not saved under s. 1.
Civil Rights – Topic 4943
Presumption of innocence – Evidence and proof – Burden of proof in criminal cases – Sections 37.3(2)(a) and (b) of the Competition Act provided an accused charged with false or misleading advertising the defence of due diligence – Section 37.3(2) required the accused to establish due diligence on a balance of probabilities – The Supreme Court of Canada held that the reverse onus on the accused to establish due diligence violated the presumption of innocence under s. 11(d) of the Charter, because it permitted conviction despite a reasonable doubt as to whether the accused was duly diligent and, accordingly, despite the existence of a reasonable doubt as to guilt – The court held that the words “if he establishes that” in s. 37.3(2) were justified under s. 1 of the Charter – See paragraphs 131, 203 to 210.
Civil Rights – Topic 4945
Presumption of innocence – Evidence and proof – Reverse onus provisions – [See
Civil Rights – Topic 4943
].
Civil Rights – Topic 4952
Presumption of innocence – Evidence and proof – Due diligence defence – [See
Civil Rights – Topic 4943
].
Civil Rights – Topic 4955
Presumption of innocence – Evidence and proof – Regulatory offences – [See
Civil Rights – Topic 4943
].
Civil Rights – Topic 8305
Canadian Charter of Rights and Freedoms – Application of – Persons protected – Corporations – A corporation was charged with false or misleading advertising contrary to s. 36(1)(a) of the Competition Act – The corporation claimed certain provisions of the Act violated the right to life, liberty and security of the person and the presumption of innocence under ss. 7 and 11(d) of the Charter and were, accordingly, of no force and effect – The provisions of the Act applied to both individual and corporate accused – The Supreme Court of Canada stated that “given that the false/misleading advertising provisions encompass
both
individual and corporate accused and given this court’s interpretation of s. 52(1), [the corporate accused] does have standing to challenge these provisions under ss. 7 and 11(d) of the Charter and is entitled to benefit from a finding that the provisions violate a human being’s constitutional rights” – See paragraphs 131, 160 to 168.
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law – [See first
Civil Rights – Topic 8546
and
Civil Rights – Topic 4943
].
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law – Lamer, C.J.C., of the Supreme Court of Canada stated the procedure to be followed when considering whether a limit on a right or freedom was justified under s. 1: “(1) The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important; (2) Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test; that is to say they must: (a) be ‘rationally connected’ to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right or freedom in question as ‘little as possible’; and (c) be such that their effects on the limitation of rights and freedoms are proportional to the objective” – See paragraph 184.
Civil Rights – Topic 8469
Canadian Charter of Rights and Freedoms – Interpretation – United States experience – Cory, J., of the Supreme Court of Canada, stated that “there are important differences between our Charter and the Constitution of the United States. There are also important historical and other differences between Canadian and American society. Decisions of the highest American courts should not and must not be slavishly followed in Canada. Nonetheless, we can often benefit from the American experience and learning” – See paragraph 117.
Civil Rights – Topic 8479
Canadian Charter of Rights and Freedoms – Interpretation – Regulatory matters – Cory, J., of the Supreme Court of Canada, opined that the contextual approach to Charter interpretation required acknowledgment that “a Charter right may have different scope and implications in a regulatory context than in a truly criminal one” – See paragraph 45.
Civil Rights – Topic 8546
Canadian Charter of Rights and Freedoms – Interpretation – Life, liberty and security of the person – Sections 37.3(2)(c) and (d) of the Competition Act provided that no one could be convicted of false or misleading advertising (s. 36(1)(a)) if he (c) took reasonable measures to notify persons affected by the error and (d) acted forthwith – The Supreme Court of Canada held that ss. 37.3(2)(c) and (d) violated s. 7 of the Charter and could not be justified under s. 1 – Sections 37.3(2)(c) and (d) permitted a conviction even where the accused established a lack of negligence in making the false or misleading representations – The accused could, accordingly, be deprived of the defence of due diligence and the offence would be tantamount to absolute liability (ie., liability imposed in absence of fault) – See paragraphs 121 to 124, 131, 179 to 201.
Civil Rights – Topic 8546
Canadian Charter of Rights and Freedoms – Interpretation – Life, liberty and security of the person – [See
Civil Rights – Topic 8547
].
Civil Rights – Topic 8547
Canadian Charter of Rights and Freedoms – Interpretation – Principles of fundamental justice – An accused was charged with false or misleading advertising contrary to s. 36(1)(a) of the Competition Act – The accused submitted that since imprisonment was available as a punishment s. 7 of the Charter required proof of subjective mens rea in order to comply with the principles of fundamental justice – The Supreme Court of Canada held that an element of subjective mens rea was not required – Negligence was properly acceptable as the minimum fault standard required by s. 7 – See paragraphs 76 to 83, 131, 173 to 175.
Trade Regulation – Topic 645
Competition – Advertising – False or misleading advertising – [See
Civil Rights – Topic 4943,
first
Civil Rights – Topic 8546
and
Civil Rights – Topic 8547
].
Cases Noticed:
Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 6].
R. v. Holmes, [1988] 1 S.C.R. 914; 85 N.R. 21; 27 O.A.C. 321, refd to. [para. 9].
R. v. Whyte, [1988] 2 S.C.R. 3; 86 N.R. 328, refd to. [para. 9].
R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 9].
R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161, refd to. [para. 10].
Sherras v. De Rutzen, [1895] 1 Q.B. 918, refd to. [para. 18].
R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5, refd to. [para. 19].
R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161, refd to. [para. 20].
Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 27].
City National Leasing Ltd. v. General Motors of Canada Ltd., [1989] 1 S.C.R. 641; 93 N.R. 326; 32 O.A.C. 332, refd to. [para. 33].
R. v. Big M Drug Mart, [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,203; 13 C.R.R. 64, refd to. [para. 41].
Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 42].
Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 43].
Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [para. 43].
McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545, refd to. [para. 47].
Morrissette v. United States (1952), 342 U.S. 246 (S.C.), refd to. [para. 54].
Lambert v. California (1957), 355 U.S. 225 (S.C.), refd to. [para. 57].
United States v. Freed (1971), 401 U.S. 601, refd to. [para. 58].
United States v. International Minerals and Chemical Corp. (1971), 402 U.S. 558, refd to. [para. 58].
R. v. Videoflicks Ltd., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 14 D.L.R.(4th) 10, refd to. [para. 65].
R. v. Edwards Books and Art Ltd. – see R. v. Videoflicks Ltd.
Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 66].
Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 66].
R. v. Logan, Logan and Johnson, [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330, refd to. [para. 77].
R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105, refd to. [para. 89].
Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, refd to. [para. 93].
R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 111].
United States v. Balint (1922), 258 U.S. 250, refd to. [para. 116].
United States v. Dotterweich (1943), 320 U.S. 277, refd to. [para. 116].
Patterson v. New York (1977), 432 U.S. 197, refd to. [para. 116].
Martin v. Ohio (1987), 480 U.S. 228, refd to. [para. 116].
R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 132].
R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 94 N.R. 310; 69 Man.R.(2d) 161, refd to. [para. 137].
R. v. Consumers Distributing Co. (1980), 57 C.C.C.(2d) 317, refd to. [para. 148].
R. v. Schwartz, [1988] 2 S.C.R. 443; 88 N.R. 90; 56 Man.R.(2d) 92, refd to. [para. 154].
Dywidag Systems International Canada Ltd. v. Zutphen Brothers Construction Ltd., [1990] 1 S.C.R. 705; 106 N.R. 11; 97 N.S.R.(2d) 181; 258 A.P.R. 181, refd to. [para. 162].
R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385, refd to. [para. 164].
Lippé v. Québec (Procureur général) (1991), 128 N.R. 1 (S.C.C.), refd to. [para. 174].
R. v. Tutton and Tutton, [1989] 1 S.C.R. 1392; 98 N.R. 19; 35 O.A.C. 1, refd to. [para. 244].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 7, sect. 11(d).
Competition Act, R.S.C. 1970, c. C-23, sect. 36(1)(a), sect. 36(5) [paras. 3, 140]; sect. 37.3(2) [paras. 4, 140].
Constitution Act, 1982, sect. 52(1).
Authors and Works Noticed:
Canada, Law Reform Commission, Criminal Responsibility for Group Action, Working Paper No. 16, 1976, p. 12 [para. 27].
Canada, Law Reform Commission, The Meaning of Guilt: Strict Liability (1974), Working Paper No. 2, generally [para. 174].
LaFave, W.R., and A.W. Scott, Substantive Criminal Law (1986), generally [para. 118].
Ontario, Law Reform Commission, Report on the Basis of Liability for Provincial Offences (1990), pp. 46 [para. 174]; 48 [para. 218].
Packer, H.L., Mens Rea and the Supreme Court, [1962] Sup. Ct. Rev. 107, generally [para. 118].
Richardson, G., Strict Liability for Regulatory Crime: the Empirical Research, [1987] Crim. L.R. 295, pp. 295-296 [para. 52].
Saltzman, A., Strict Criminal Liability and the United States Constitution: Substantive Criminal Law Due Process (1978), 24 Wayne L. Rev. 1571, generally [para. 118].
Webb, K., Regulatory Offences, the Mental Element and the Charter: Rough Road Ahead (1989), 21 Ottawa L. Rev. 419, pp. 452 [para. 60]; 467 [para. 101].
Counsel:
Ian Binnie, Q.C., Kevin McLaughlin and George Dolhai, for Wholesale Travel Group Inc.;
Michael R. Dambrot, Q.C., Robert W. Hubbard and Robert J. Frater, for the Crown;
M.P. Tunley and Kenneth L. Campbell, for the Attorney General for Ontario;
Paul Monty, Gilles Laporte and Paule Grenier, for the Attorney General of Quebec;
Paul Hawkins, for the Attorney General for New Brunswick;
Shawn Greenberg and Lawrence MacInnes, for the Attorney General of Manitoba;
Graeme Mitchell, for the Attorney General of Saskatchewan;
Robert C. Maybank, for the Attorney General of Alberta;
Earl A. Cherniak, Q.C., and Kirk F. Stevens, for Ellis-Don Ltd. and Rocco Morra.
Solicitors of Record:
McCarthy Tétrault, Toronto, Ontario, for Wholesale Travel Group Inc.;
John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the Crown;
Jack Johnson, Toronto, Ontario, for the Attorney General for Ontario;
Attorney General of Quebec, Sainte-Foy, Quebec, for the Attorney General of Quebec;
Attorney General for New Brunswick, Fredericton, New Brunswick, for the Attorney General for New Brunswick;
Attorney General of Manitoba, Winnipeg, Manitoba, for the Attorney General of Manitoba;
Brian Barrington-Foote, Regina, Sas-katchewan, for the Attorney General of Saskatchewan;
Attorney General of Alberta, Edmonton, Alberta, for the Attorney General of Alberta;
Lerner & Associates, Toronto, Ontario, for Ellis-Don Ltd. and Rocco Morra.
These appeals were heard on February 18, 1991, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci, JJ., of the Supreme Court of Canada.
On October 24, 1991, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
Cory, J. (L’Heureux-Dubé, J., concurring) – see paragraphs 1 to 130;
Iacobucci, J. (Gonthier and Stevenson, JJ., concurring) – see paragraphs 131 to 139;
Lamer, C.J.C. (Sopinka, J., concurring) – see paragraphs 140 to 240;
La Forest, J. – see paragraphs 241 to 244;
McLachlin, J. – see paragraphs 245 to 249.
