Re Board of Commerce Act 1919 and the Combines and Fair Prices Act 1919, commonly known as the Board of Commerce case, is a Canadian constitutional decision of the

Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Augus ...

in which the "emergency doctrine" under the federal power of

peace, order and good government In many Commonwealth jurisdictions, the phrase "peace, order, and good government" (POGG) is an expression used in law to express the legitimate objects of legislative powers conferred by statute. The phrase appears in many Imperial Acts of Pa ...

was first created.

Background

Following the end of the

First World War World War I (28 July 1914 11 November 1918), often abbreviated as WWI, was one of the deadliest global conflicts in history. Belligerents included much of Europe, the Russian Empire, the United States, and the Ottoman Empire, with fightin ...

, there was a rapid rise in the

cost of living Cost of living is the cost of maintaining a certain standard of living. Changes in the cost of living over time can be operationalized in a cost-of-living index. Cost of living calculations are also used to compare the cost of maintaining a cer ...

in the Canadian economy. In response, the

Parliament of Canada The Parliament of Canada (french: Parlement du Canada) is the federal legislature of Canada, seated at Parliament Hill in Ottawa, and is composed of three parts: the King, the Senate, and the House of Commons. By constitutional convention, the ...

passed the Board of Commerce Act, 1919 and the Combines and Fair Prices Act, 1919. The assigned the Board of Commerce two main functions: * Investigate and restrain

combination In mathematics, a combination is a selection of items from a set that has distinct members, such that the order of selection does not matter (unlike permutations). For example, given three fruits, say an apple, an orange and a pear, there are th ...

monopolies A monopoly (from Greek el, μόνος, mónos, single, alone, label=none and el, πωλεῖν, pōleîn, to sell, label=none), as described by Irving Fisher, is a market with the "absence of competition", creating a situation where a speci ...

trust Trust often refers to: * Trust (social science), confidence in or dependence on a person or quality It may also refer to: Business and law * Trust law, a body of law under which one person holds property for the benefit of another * Trust (bus ...

s and mergers constituting a "combine." *Inquire into and enforce prohibitions against

hoarding Hoarding is a behavior where people or animals accumulate food or other items. Animal behavior ''Hoarding'' and ''caching'' are common in many bird species as well as in rodents. Most animal caches are of food. However, some birds will a ...

and profiteering. In pursuit of its functions, the Board issued an order, prohibiting certain clothing manufacturers in

Ottawa Ottawa (, ; Canadian French: ) is the capital city of Canada. It is located at the confluence of the Ottawa River and the Rideau River in the southern portion of the province of Ontario. Ottawa borders Gatineau, Quebec, and forms the core ...

from charging higher than specified profit margins. That triggered a dispute as to the Acts' constitutionality, and the Board referred the matter to the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

by way of stated case under s. 32 of the Board of Commerce Act, posing the following

reference question In Canadian law, a reference question or reference case (formally called abstract review) is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question conc ...

s: #Has the Board lawful authority to make the order? #Has the Board lawful authority to require the Registrar or other proper officer of the

Supreme Court of Ontario The Supreme Court of Ontario was a superior court of the Canadian province of Ontario. Created in 1881 pursuant to the Ontario Judicature Act (1881), the Supreme Court of Ontario had two branches: the High Court of Justice Division and the Appell ...

to cause the order when issued to be made a rule of said Court?

Supreme Court of Canada

The Supreme Court split 3–3 on the question of the constitutionality of the legislation. Anglin J, joined by Davies CJ and Mignault J considered the Acts to be ''

intra vires ('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...

'' and repeated the observation he had previously made in the ''Insurance Act Reference'': However, given the Privy Council's rulings in ''

Citizen's Insurance Co. v. Parsons ''Citizens Insurance Co of Canada v Parsons'' is a major Canadian constitutional case decided by the Judicial Committee of the Privy Council, at that time the highest court of appeal for the British Empire. The case decided a significant issue o ...

'' and the '' Local Prohibition case'', he rested his decision to uphold the Acts on the basis of the federal trade and commerce power as well as on the federal power relating to peace, order and good government. Idington, Duff, and Brodeur JJ, in separate opinions, held that they were ''ultra vires''. In particular, Duff J had concerns as to the interpretation of the nature of the power of peace, order and good government: An appeal was then filed with the Privy Council.

Privy Council

Richard Burdon Haldane, 1st Viscount Haldane - Project Gutenberg eText 15306

Lord Haldane Richard Burdon Haldane, 1st Viscount Haldane, (; 30 July 1856 – 19 August 1928) was a British lawyer and philosopher and an influential Liberal and later Labour politician. He was Secretary of State for War between 1905 and 1912 during w ...

, for the Council, found that the Acts were ''

ultra vires ('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...

'' the jurisdiction of the

, as they could not be justified under any heading of federal power enumerated in s. 91 of the ''British North America Act, 1867''.

Peace, order and good government

Haldane rejected the general power of peace, order and good government on the basis that it should be used only in circumstances "such as those of war or famine

here Here is an adverb that means "in, on, or at this place". It may also refer to: Software * Here Technologies, a mapping company * Here WeGo (formerly Here Maps), a mobile app and map website by Here Technologies, Here Television * Here TV (form ...

the peace, order, and good Government of the Dominion might be imperilled under conditions so exceptional that they require legislation of a character in reality beyond anything provided for by the enumerated heads in either section 92 or section 91 itself."

Trade and commerce

Citing his previous decision in ''John Deere v Wharton'', Haldane held that the power to regulate trade and commerce was meaningless unless it could be said to supplement another federal power.

Criminal law

In explaining why the federal

criminal law power Section 91(27) of the ''Constitution Act, 1867'', also known as the criminal law power, grants the Parliament of Canada the authority to legislate on: Scope of the federal power Section 91(27) is by and large the broadest of the enumerated powe ...

was not of help in the matter, Haldane also provided its first definition in Canadian jurisprudence by stating that it would apply "where the subject matter is one which by its very nature belongs to the domain of criminal jurisprudence."

Aftermath

Haldane's statement as to the nature of the criminal law power was later described by Lord Atkin in ''

Proprietary Articles Trade Association v. Attorney General of Canada ''Proprietary Articles Trade Association v Canada (AG)'', is a Canadian constitutional decision of the Judicial Committee of the Privy Council on the Constitution's criminal law power under section 91(27). Background Following the '' Board of ...

'' as not being a definition. Instead, it was held to be "the criminal law in its widest sense," including the ability to make new crimes, and the only relevant standard to apply is whether the act would attract penal consequences. In addition, while the matter of the trade and commerce power did not need to be decided in that case, the Board declared that it wished to dissociate themselves from Haldane's previous comment: "No such restriction is properly to be inferred from that judgment."