Supreme Court of Canada
CBC and co. v. R., [1983] 1 S.C.R. 339
Canadian Broadcasting Corporation, Television Station C.B.O.F.T. and René Boissay (Plaintiffs) Appellants;
and
Her Majesty The Queen (Defendant) Respondent.
1982: March 31, April 1; 1983: March 24.
Present: Laskin C.J. and Dickson, Beetz, Estey, Mclntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Crown immunity—Broadcast of an obscene film—Criminal charges—CBC acting unlawfully—Whether CBC subject to prosecution—Broadcasting Act, R.S.C. 1970, c.B‑11, ss. 3, 38, 39, 40—Radio (T.V.) Broadcasting Regulations, SOR/64-50, ss. 3, 5(1)(a), (c)—Criminal Code, R.S.C 1970, c. C-34, ss. 2, 159(1)(a).
Appellant, a Crown corporation established under the Broadcasting Act, was charged with the unlawful broadcast of an obscene film. A provincial court judge, on a preliminary point of law, ruled that the appellant could not be charged under the Code and that he had no jurisdiction to hear such charges. The Ontario Supreme Court reversed the judgment and the Court of Appeal upheld its decision. This appeal is to determine whether the appellant is subject, by reason of its broadcast, to prosecution under the Criminal Code.
Held: The appeal should be dismissed.
There is no reason in law why a law enforcement agency should not bring before a criminal court a corporation, however established, or any other person, where the conduct of that person, natural or legal, offends the Criminal Code and is not expressly authorized by Act of Parliament. Here, the broadcast was contrary to s. 159(a) of the Code and prohibited by a regulation promulgated under the Broadcasting Act. Further, the CBC was subject—like all the other, broadcasters—to generally applicable statutes and regulations including the Criminal Code. The CBC, in exercising its powers in a manner inconsistent with the purposes of the Broadcasting Act, did not act as an agent for the Crown; therefore the attribution of Crown immunity to the appellant was not in issue in this case.
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Canadian Broadcasting Corporation v. Attorney-General for Ontario, 1959 CanLII 2 (SCC), [1959] S.C.R. 188, distinguished; Conseil des Ports Nationaux v. Langelier, 1968 CanLII 51 (SCC), [1969] S.C.R. 60, applied; MacKenzie-Kennedy v. Air Council, [1927] 2 K.B. 517; Quebec Liquor Commission v. Moore, 1924 CanLII 56 (SCC), [1924] S.C.R. 540; River Wear Commissioners v. Adamson (1877), 2 App. Cas. 743; R. v. Stradiotto (1973), 1973 CanLII 766 (ON CA), 11 C.C.C. (2d) 257, referred to.
APPEAL from a judgment of the Court of Appeal for Ontario (1980), 1980 CanLII 68 (ON CA), 115 D.L.R. (3d) 684, 30 O.R. (2d) 239, affirming a judgment of Donohue J. setting aside a judgment of the Provincial Court quashing an information. Appeal dismissed.
W.I.C. Binnie, Q.C., and Roger Leclaire, for the appellants the Canadian Broadcasting Corporation and the Television Station C.B.O.F.T.
Claude-Armand Sheppard, for the appellant Boissay.
David H. Doherty, for the respondent.
The judgment of the Court was delivered by
Introduction
ESTEY J.—The appellant is a corporation established under the Broadcasting Act, R.S.C. 1970, c. B-11 and is charged under s. 159 (1)(a) of the Criminal Code, R.S.C. 1970, c. C-34 that it “unlawfully did publish an obscene moving picture, to wit, “J’irai comme un cheval fou”…” in the City of Ottawa through the Corporation’s television station, C.B.O.F.T. The provincial court judge, on a preliminary point of law, stated a case to the High Court of Ontario after determining that the appellant could not be charged under the Criminal Code and that he had no jurisdiction to hear such charges. Donohue J. found that the learned provincial court judge had erred and remitted the matter to him for trial on the charges laid under the Criminal Code of Canada. The Ontario Court of Appeal dismissed an appeal from the decision of Donohue J.
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Statutory Framework
The Broadcasting Act, supra, regulates broadcasting generally throughout Canada and the appellant is expressly made subject to its provisions at least as regards the discharge of its mandate under the Broadcasting Act to provide “the national broadcasting service contemplated by section 3” of the Act. By section 3(c) Parliament declared:
(c) all persons licensed to carry on broadcasting undertakings have a responsibility for programs they broadcast but the right to freedom of expression and the right of persons to receive programs, subject only to generally applicable statutes and regulations, is unquestioned;
(Emphasis added.)
While the appellant may enjoy a status as a public corporation, to which I will refer in more detail, it is, as regards the discharge of its parliamentary mandate as a broadcaster, in precisely the same position as other broadcasters who form part of the “Canadian broadcasting system” (s. 3(b), Broadcasting Act, supra).
In the course of its broadcasting operations the appellant broadcast a film which for the purposes of these proceedings is admitted to have been obscene. It is also acknowledged that such conduct is subject to specific regulation under the regulations promulgated under the Broadcasting Act, specifically the Radio (T.V.) Broadcasting Regulations, SOR/64-50, s. 5(1)(a) and (c) which is set out later in these reasons. The issue in these proceedings, however, is whether the appellant is subject, by reason of this broadcast, to prosecution under the Criminal Code.
Part III of the Broadcasting Act makes provision for the establishment of the appellant, the Canadian Broadcasting Corporation. Section 39(1) of Part III provides in part:
- (1) The Corporation [the appellant] is established for the purpose of providing the national broadcasting service contemplated by section 3, in accordance with the conditions of any licence or licences issued to it by the Commission and subject to any applicable regulations of the Commission, and for that purpose the Corporation has power to
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(c) originate programs, and secure programs from within or outside Canada by purchase, exchange or otherwise, and make arrangements necessary for their transmission;
The relationship of the appellant and the Crown is described in s. 40(1):
- (1) Except as provided in subsection 38(3), the Corporation is, for all purposes of this Act, an agent of Her Majesty, and its powers under this Act may be exercised only as an agent of Her Majesty.
Subsection (3) below relates to the property of the appellant:
(3) Property acquired by the Corporation is the property of Her Majesty and title thereto may be vested in the name of Her Majesty or in the name of the Corporation.
At the same time note must be taken of the definition of “person” and “every one” under s. 2 of the Criminal Code (s. 159 of the Code under which these charges were laid reads: “Every one commits an offence who…”):
“every one”, “person”, “owner”, and similar expressions include Her Majesty and public bodies, bodies corporate, societies, companies and inhabitants of counties, parishes, municipalities or other districts in relation to the acts and things that they are capable of doing and owning respectively.
Crown Agency and Liability
The appellant made the submission in this Court that, “for all purposes”, it acts as the agent of Her Majesty in the performance of its duties under the Broadcasting Act, and by reason of the judgment of this Court in the Canadian Broadcasting Corporation v. Attorney-General for Ontario, 1959 CanLII 2 (SCC), [1959] S.C.R. 188 was immune from prosecution under the Criminal Code. I will return to that case shortly.
The Langelier Case
A similar argument was made in this Court by counsel for the Crown corporation in Conseil des Ports Nationaux v. Langelier, 1968 CanLII 51 (SCC), [1969] S.C.R. 60. The issue in those proceedings, concerning as they did the National Harbours Board established under the National Harbours Board Act, R.S.C. 1952, c. 187, was framed by Martland J., at p. 70:
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What is in issue here is the responsibility of a person, whether individual or corporate, who, though a Crown agent, and purporting to act as such, commits an act which is unlawful.
The parent statute in that instance provided in part:
- (1)…
(2) The Board is a body corporate and politic and shall be and be deemed to be, for all purposes of this Act, the agent of Her Majesty in right of Canada.
(3) The Board has the capacity to contract and to sue and be sued in the name of the Board.
(National Harbours Board Act, supra.)
At page 64 Martland J. states:
It was also argued that the National Harbours Board, as such, was incapable of acting in any way, save as an agent of the Crown, and that if, in fact, its powers were exceeded, any such act could not be that of the Board, but would be only the act of the individuals involved.
There is no doubt that in the existing state of the law employees of the Crown are responsible for their own acts done in their official character but in excess of their lawful authority. There is also no doubt that their superiors also in the service of the Crown, while not vicariously liable for the unlawful activities of their fellow employees, are personally responsible where such unlawful activities are at the behest of the superior official. In Conseil des Ports Nationaux, supra, this Court found that responsibility in law is not affected by the interposition of a Crown corporation established by statute. The Court concluded (at p. 72):
Is the position any different because the agent in this case is not an individual, but a corporation? I think not, and I agree with the reasoning of Atkin L.J. in the MacKenzie‑Kennedy case [[1927] 2 K.B. 517 (Eng. C.A.)].
As Choquette J. has pointed out, in the reasons for judgment of the Court of Appeal, s. 3(2) of the National Harbours Board Act declares that the Board “shall be and be deemed to be, for all the purposes of this Act, the agent of Her Majesty in right of Canada”. (The italicizing is my own.) It is only when the Board is
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lawfully executing the powers entrusted to it by the Act that it is deemed to be a Crown agent.
I am not prepared to accept the proposition enunciated in Wheeler v. Public Works Commissioners, [1903] 2 I.R. 202, that a corporation constituted for the sole purpose of doing acts for the Crown is not capable of doing a wrongful act in its corporate capacity, unless that statement is to be limited in its meaning to say that such a wrongful act is not authorized by its corporate powers. Otherwise the statement subscribes to the theory that a corporation cannot be made liable in tort because its corporate powers do not authorize it to commit a wrong. In my opinion, if a corporation, in the purported carrying out of its corporate purposes, commits a wrongful act, it is liable therefor and it cannot escape liability by alleging that it is not responsible for anything done outside its corporate powers. This is true whether it is purporting to act as a Crown agent, or not.
Those proceedings were, of course, concerned with tortious liability by reason of works undertaken by the Crown corporation in the discharge of its parliamentary mandate to establish and operate harbours and related facilities. The analogy is helpful here nonetheless.
The same problem was dealt with by Duff J., as he then was, in Quebec Liquor Commission v. Moore, 1924 CanLII 56 (SCC), [1924] S.C.R. 540, where his Lordship stated (at p. 552):
It is now recognized also that there is nothing to prevent the Crown being served by a corporation, and nothing to prevent such a corporation claiming the same immunity as an individual.
Conversely, of course, the liability of the Crown corporation is the same as that of an individual acting as a servant of the Crown.
It was said in argument that s. 40, supra, of the Broadcasting Act finds its roots in the desire by Parliament to establish a national broadcasting service free from influences of the political world, including perhaps both the executive and legislative branches of the government, to the extent that such influences might impinge upon the proper functioning of such a national broadcasting service on a non-political basis. This may indeed have
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been the explanation for the establishment of a Crown corporation acting as an agent of the Crown particularly in the light of the comments of the House of Lords in MacKenzie-Kennedy v. Air Council, [1927] 2 K.B. 517, where Atkin L.J., at p. 532 stated: “If, however, the Air Council were incorporated different considerations might apply”. His Lordship was there dealing with the representative responsibility of members of the unincorporated Air Council, a circumstance with which we are not here concerned.
I turn then to the question as to the position in law of the appellant as a result of the obscene broadcast which forms the basis of the criminal charges here. After establishing the Corporation, its governing body and its principal officers, the Act provides in s. 38, subss. (1) and (3):
- (1) The Corporation, on the recommendation of the President and with the approval of the Governor in Council, shall appoint an Executive Vice-President of the Corporation who shall be responsible to the President for the management of broadcasting operations in accordance with policies prescribed by the Corporation and for such other duties as the President may assign to him from time to time.
(3) The Executive Vice-President and the officers and employees employed by the Corporation pursuant to subsection (2) shall, subject to section 44, be employed on such terms and conditions and at such rates or remuneration as the Corporation deems fit and the Executive Vice-President and such officers and employees are not officers or servants of Her Majesty.
The broadcasting operations of which the challenged broadcast formed a part are those under the direct responsibility of the Executive Vice-President who is not a servant of Her Majesty but only an employee of the appellant. There is no question raised in these proceedings but that this broadcast formed a part of the regular broadcasting schedules of the appellant, broadcast to the Canadian public in the course of its performance of its duties under the Broadcasting Act.
The 1959 CBC Precedent
I turn back then to the decision of this Court in Canadian Broadcasting Corporation v. Attorney-
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General for Ontario, supra. In those proceedings the appellant was charged with carrying on “its ordinary calling by operating a broadcasting station contrary to the Lord’s Day Act”, R.S.C. 1952, c. 171. Taschereau J. summed up the issue at p. 190:
The only question which has to be resolved now is: Does s. 4 of the Lord’s Day Act apply to the Canadian Broadcasting Corporation which is by statute an agent of Her Majesty?
Section 4 of the Lord’s Day Act, supra, provided as follows:
- It is not lawful for any person on the Lord’s Day, except as provided herein, or in any provincial Act or law now or hereafter in force, to sell or offer for sale or purchase any goods, chattels, or other personal property, or any real estate, or to carry on or transact any business of his ordinary calling, or in connection with such calling, or for gain to do, or employ any other person to do, on that day, any work, business, or labour.
By s. 2(d) of that Act the word ‘person’ “has the meaning that it has in the Criminal Code”. The Criminal Code at the time of those proceedings had the same definition for ‘person’ as quoted above. The comparable provision in the Canadian Broadcasting Act, R.S.C. 1952, c. 32, to s. 40(1), supra, then read:
- (1)…
(2) The Corporation is for all purposes of this Act an agent of Her Majesty and its powers under this Act may be exercised only as an agent of Her Majesty.
In the result, this Court, reversing the Ontario Court of Appeal, found that the appellant was immune from prosecution under the Lord’s Day Act. In all such proceedings a court must of course begin with the proposition that at common law the Crown is not bound by any statute unless expressly or by necessary implication the Crown is brought within the statute. Rand J. put it: “At common law admittedly the Sovereign could not be impleaded in his courts…” (p. 196). Section 16 of the Interpretation Act, R.S.C. 1952, c. 158 provided:
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- No provision or enactment in any Act affects, in any manner whatsoever, the rights of Her Majesty, her heirs or successors, unless it is expressly stated therein that Her Majesty is bound thereby.
which provision is in a similar form today. Rand J. concluded that the Lord’s Day Act did not extend to the Crown, observing at p. 198:
To say that it intends and has effect to include the Crown as an ordinary subject of the prohibitory or the penal provisions of the Code is repugnant to the principle of immunity in both aspects. If such a fundamental change had been intended it would not have been effected by a clause of general definition. There is ample matter for legitimate application to Her Majesty, the obvious one being that of a “person” who is the victim of criminality, not its perpetrator: in such and other instances it is used in the description of a factual situation.
and concluded at p. 199:
The situation of the Crown, then, is this: by the Canadian Broadcasting Act, R.S.C. 1952, c. 32, ss. 4 and 8, the appellant, as agent of Her Majesty “shall carry on a national broadcasting service within Canada.” No limit or restriction of time is prescribed for furnishing that service; and in the absence of an express and contrary enactment by Parliament, that time is unlimited. The effect of s. 16 of the Interpretation Act is to render the Crown under the Broadcasting Act as unrestricted as if the Lord’s Day Act had not been passed. If the Sovereign is free to broadcast on Sunday, those who do the acts necessary to that service are immune from prosecution because the act they do is the lawful act of the Sovereign, attributable to him and untainted with criminal character.
Locke J., influenced by the importance of broadcasting to the general public including on Sundays, placed the Act in a pre-eminent position requiring a narrower interpretation of the Lord’s Day Act to accommodate the two statutes and the continuance of national broadcasting service on Sunday. His Lordship construed the definition in s. 2(15) of the Criminal Code (at p. 205):
Rather, should it be construed as meaning that “person” includes the Sovereign as one of those against whose
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person and property various criminal offences may be committed by others. In The King v. Bishop of Salisbury, [1901] 1 Q.B. 573 at 577, Wills J. said that, where an affirmative statute is open to two constructions, that construction ought to be preferred which is consonant with the common law.
His Lordship in enunciating this proposition cited River Wear Commissioners v. Adamson (1877), 2 App. Cas. 743. The House of Lords in that case was faced with the broad wording in the statute which imposed liability on:
every vessel… for any damage done to… a pier; and… the person having the charge of such vessel… through whose wilful act or negligence any such damage is done shall also be liable___
Only one Law Lord in dissent applied what might be said to be the ordinary meaning of the words used by Parliament and found liability without restriction. The balance of the majority of the Court, through a variety of approaches, found that the Act must be deemed to include an exception in circumstances where it was not possible to keep the vessel under control. If there be such a rule of statutory interpretation now available to the courts, it would be difficult to see how it had any application in connection with the broadcasting activities of the appellant in the circumstances raised in this appeal.
Taschereau J., as he then was, for himself and two other judges in dissent, made a fundamental distinction between proceedings under the Criminal Code and those brought under the Lord’s Day Act. The minority declined to interpret the Lord’s Day Act as excluding the Crown by reason only of the definition of ‘person’ incorporated by reference from the Criminal Code. His Lordship observed (at p. 195):
I am quite satisfied that it never entered the mind of Parliament that C.B.C. could not be reached by the statute, while all the other private stations, not agents of the Crown, and which are now on an equal footing with the appellant, would be amenable to the law.
In those proceedings the Court was concerned with the opposing objectives of the Canadian
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Broadcasting Act and the Lord’s Day Act. The former authorized, without limitation as to time or region, the establishment and operation of a national broadcasting service. The latter statute concerned itself with limitations imposed on the conduct of business on Sundays. The majority of the Court, for different reasons, found that the Lord’s Day Act could not be interpreted as placing limitations on the mandated broadcasting service under the Canadian Broadcasting Act, and particularly where this result would have followed because of the incorporation by reference of the definition of the word ‘person’. It must be borne in mind when examining the several judgments of this Court in the 1959 decision that the Canadian Broadcasting Act expressly and beyond any debate authorized the broadcasting there challenged. Here the Broadcasting Act not only did not authorize the broadcasting of this film but, by a regulation promulgated under the Act, such broadcasting was prohibited. Thus we do not have a situation where there is a statute-authorized event on the one hand and a consequential offence under another statute (the Criminal Code) on the other hand. Section 159 of the Criminal Code expressly prohibits the broadcasting of obscene matter, as do the Radio (T.V.) Broadcasting Regulations, s. 5 of which provides:
- (1) No station or network operator shall broadcast
(a) anything contrary to law;
(c) any obscene, indecent or profane language or pictorial presentation;
Analysis
In disposing of this appeal it is not necessary to delve into the origins and present reach of the doctrine of Crown immunity. Nor is it necessary to revisit the question of the meaning of s. 2 of the Criminal Code which was the subject of discussion in the 1959 CBC case, supra. Nothing herein stated, therefore, should be read as a commentary upon the majority concurring and dissenting opinions in this Court in that case. This may one day be necessary but, in my view, this appeal does not call for a review of the role and status of the Crown in criminal law in circumstances where its
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agent was acting (as it was not here) within its constituting Act of Parliament.
We are not, therefore, called upon in these proceedings to review or comment upon the effect of the definition of “person” in s. 2 with reference to the Crown. What has to be determined is the character of the actions allegedly taken by the appellant-Corporation in the course of the discharge of its parliamentary mandate. It is the characterization of those actions in law which now concerns the Court. If the Corporation is at the critical time the beneficiary of the doctrine of Crown immunity, the burden on this appeal would be quite different. On the other hand, if at the critical time the appellant-Corporation was not acting as an agent of the Crown, then the definitions of “person” and “every one” as presently in s. 2 of the Criminal Code are of no relevance because it cannot be said that a court lacks the jurisdiction to try a charge where such immunity has been withdrawn.
Application to the Present Case
The question before the Court therefore is whether or not the Corporation, in acting as it did, has exposed itself to prosecution under s. 159. No defence has been raised on the basis that the Corporation would not, were it a private broadcaster, be liable to prosecution under the Code, nor is any defence raised on the basis that the action taken by the employees of the Corporation are not actions for which the Corporation would otherwise be criminally responsible. We are solely concerned with whether the broadcasting of an admittedly obscene program by the appellant in its status under s. 40(1) of the Act is amenable to prosecution under the Criminal Code. As Professor Maitland said in The Constitutional History of England (1919), at p. 484:
We can hardly lay too much stress on the principle that though the king cannot be prosecuted or sued, his ministers can be both prosecuted and sued, even for what they do by the king’s express command… Law, especially modern statute law, has endowed them with many great powers, but the question whether they have overstepped those powers can be brought before a court of law, and the plea ‘this is an official act, an act of state’ will not serve them.
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The appellant is certainly in no better position than a minister of the Crown. It is difficult to believe that after the great constitutional struggles through which we and our forebears have gone to bring to an end the concept of the absolute monarchy we are still faced with the defence of absolute immunity by the monarch’s administration. Borrowing the words of Martland J. in Conseil des Ports Nationaux, supra: “It is only when the [Corporation] is lawfully executing the powers entrusted to it by the Act that it is deemed to be the Crown agent” (p. 72). When so acting and thereby enjoying the status of Crown agent the immunities of the Crown flow through to the agent for its benefit. Where, however, the Corporation is not acting “for all purposes of this Act” or with reference to “its powers under this Act” the status and the benefits of Crown agency disappear.
The attribution of Crown immunity to the appellant may be an issue in circumstances not here before the Court and hence need not, for the disposition of this appeal, be determined. However, even if Crown immunity may be attributed to the appellant in some circumstances, and the actions of the appellant in such circumstances attributed to the Crown, it does not necessarily follow that the immunities attendant upon the status of Crown agency will flow through to the benefit and protection of the appellant in all circumstances. Here we have the Attorney General of the Province of Ontario prosecuting charges under the federal Criminal Code against a corporation established by the Parliament of Canada. The former brings the charges in the course of its duty to enforce the criminal law in the province and the latter is called upon to answer those charges by reason of its corporate existence and responsibilities under the Broadcasting Act. There is no authorization given by Parliament in its parent statute for the conduct of the appellant. The law reveals no reason why Her Majesty as the fountainhead of justice should not invoke the powers of the criminal courts to enforce a statute which expressly makes Her Majesty’s agents subject to its terms. But even that is not the case before us. There certainly can be no
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reason in law why the law enforcement agencies should not bring before the criminal court a corporation, however established, or any other person, where the conduct of that person, natural or legal, offends the Criminal Code and is not expressly authorized by Act of Parliament. We are not here concerned with whether the same principle would apply to conduct expressly authorized by another legislature acting within its plenary competence.
This same line of reasoning has been applied by our courts in the past. In R. v. Stradiotto (1973), 1973 CanLII 766 (ON CA), 11 C.C.C. (2d) 257, Evans J.A., as he then was, speaking for the Court of Appeal of Ontario, found a soldier guilty of breach of The Highway Traffic Act, R.S.O. 1970, c. 202, and said this with reference to the defence of Crown immunity (at p. 261):
In my view, a distinction must be drawn between a breach of the Highway Traffic Act which is required to be committed by a soldier in order to carry out a military order and a breach of the statute which a soldier commits during the course of carrying out his duties which duties, however, can be properly discharged without committing a breach of the statute. Applied in that way, the “rights of Her Majesty” are not “affected” by applying the provisions of the Highway Traffic Act to a member of Her Majesty’s Armed Forces.
It was argued by counsel for the appellant that to differentiate between acts of the appellant within “the purposes of the Act” and other actions taken by the appellant in effect creates two corporations; or would provide in effect no basis in law at all for such “extra-statutory” activities. It is clear from s. 39 and s. 3 of the Broadcasting Act that the appellant was established by Parliament to provide a national broadcasting service, including the origination and distribution by broadcast of programs, and to do so as part of the “Canadian broadcasting system” and consistent with the terms of the licences granted to the appellant in connection with this undertaking. It is equally clear that the Broadcasting Act is a statute of general application to an industry throughout
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Canada and for the regulation in every particular of that industry and all its components and affiliated organizations. Regulation 5, supra, recognizes indeed that there may be activities by the appellant and other broadcasters which are beyond their licence and beyond the statutory authorization. In this respect the appellant was in the same position—no better, no worse—than broadcasters who are not established as Crown corporations under the Broadcasting Act. Section 3 of the above-mentioned Regulations states:
- These Regulations apply to all stations and networks in Canada and to all matter broadcast by such stations and networks.
It is inconceivable that Parliament, by adopting the Broadcasting Act and by authorizing the Regulations thereunder including those cited above, would have intended to establish a regime whereby one class of broadcasters is made subject to the general laws of the land including the criminal laws, whereas the other class of broadcasters is not. Such a result is rendered the more indefensible by the concluding paragraph in s. 3(c) of the Broadcasting Act whereby all persons licenced to carry on broadcasting in Canada are “subject… to generally applicable statutes and regulations”. This surely must include the Criminal Code of Canada unless there is some other express exclusionary provision in the Code or in the Broadcasting Act or other enactment of Parliament. We have been referred to no such exclusion. Brooke J.A., speaking for the Ontario Court of Appeal in these proceedings, stated:
In my view, when the Corporation exercises its powers with a view to carrying out the purposes of the Broadcasting Act, it acts as agent of Her Majesty and only as agent of Her Majesty. But, when it exercises its powers in a manner inconsistent with the purposes of the Act, it steps outside its agency role. That role subsists only so long as the Corporation’s broadcasts are implementing the policy laid down in the Act. This seems to me to be the effect of s. 40(1).
((1981) 1980 CanLII 68 (ON CA), 30 O.R. (2d) 239, at p. 244)
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With respect I am in agreement. If such is not the law, then it must follow that the appellant is immune from any charge under the Criminal Code and thereby could not be called to account even for the commission of the most serious offences against the criminal law. Such a drastic result is said to flow from s. 40(1), supra, and the expression therein employed: “…and its powers under this Act may be exercised only as an agent of Her Majesty”. In my view, Parliament would express itself much more clearly in the implementation of such an intention.
Other Issues
Other matters are raised by the appellants including a reference to those provisions in the Broadcasting Act which provide that any property acquired by the Corporation shall be the property of Her Majesty. The Act does, however, provide that title thereto may be vested in the name of Her Majesty or in the name of the Corporation. Property may be acquired by the Corporation but subject to approval by Governor-in-Council where the consideration involved exceeds $250,000. By other provisions in the statute the appellant shall maintain in its own name bank accounts into which all moneys received by the appellant “through the conduct of its operations or otherwise” shall be deposited. Some of these provisions indicate a status not unlike that of a government department and others are more consistent with the establishment and operation of an independent legal entity. In any event, I see no relationship between those financial or property matters and the determination of the question as to the status in criminal law of the appellant.
It is said, however, that because all property including money vests in the Crown, a court of criminal jurisdiction may not impose upon or recover from the appellant a fine. This problem was adverted to in the MacKenzie-Kennedy case, supra, but no consequence in substantive law flowed. It was said: “It may be true that the Corporation in such a case will have no private assets available to meet execution, but that may also be true of the individual” (p. 533). Brooke J.A., in the Court of Appeal below, stated on this point (at p. 246):
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I was concerned that the Corporation has no money or assets to pay or satisfy a fine having regard to sections 165, 722, and 735 of the Criminal Code, but the Corporation may still be convicted and incur the liability to be sentenced. The important thing is that the Corporation does not escape the same public condemnation as that which would be incurred by any other broadcaster for criminal conduct. Perhaps this is achieved to a great extent by public trial and attendant notoriety and without necessity for a large fine.
A court duly established under the appropriate laws and given jurisdiction which includes the trial of charges laid under the Criminal Code of Canada, must assume that an entity brought into being by an Act of Parliament will, when made the subject of a judgment, respond to that judgment and the directions therein including the payment of any fine imposed. It is not part of the court’s function to speculate upon what would transpire in court or elsewhere should a creature of Parliament otherwise behave.
Disposition
I therefore would dismiss this appeal and it follows that the matter will be remitted to the trial court for the trial of the appellants on the charges which have been laid. Mention should be made of the status of the other two appellants. The record reveals no such entity as C.B.O.F.T., and counsel in this Court acknowledged that it was simply the designation in the licence issued to the Canadian Broadcasting Corporation under the Broadcasting Act of the frequency and call-letters of the transmitter employed by the Corporation in broadcasting the programs of its French-language network in the Ottawa region. Consequently, no order need be made with reference to the words “Television Station C.B.O.F.T.” in the style of cause. The appellant, René Boissay, is an employee of the Corporation, and issues may arise with reference to that appellant at trial. Therefore nothing has been said concerning his status in these proceedings. Therefore, as regards the appellant Canadian Broadcasting Corporation, the appeal would be dismissed with costs and no award as to costs is made with reference to the appellant, Boissay.
Appeal dismissed.
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Solicitor for the appellants Canadian Broadcasting Corporation and Television Station C.B.O.F.T.: R. Tassé, Ottawa.
Solicitor for the appellant Boissay: Claude-Armand Sheppard, Montreal.
Solicitor for the respondent: The Ministry of the Attorney General for the Province of Ontario, Toronto.
