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 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 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 combinations, monopolies,

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

merger Mergers and acquisitions (M&A) are business transactions in which the ownership of companies, other business organizations, or their operating units are transferred to or consolidated with another company or business organization. As an aspect ...

s constituting a "combine." *Inquire into and enforce prohibitions against hoarding 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 questions: #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 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'' 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'' and the '' Local Prohibition case'', he rested his decision to uphold the Acts on the basis of the federal

trade and commerce power Section 91(2) of the ''Constitution Act, 1867'', also known as the trade and commerce power, grants the Parliament of Canada the authority to legislate on: The development of Canadian constitutional law has given this power characteristics that a ...

as well as on the federal power relating to peace, order and good government. Idington,

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

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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'' 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."