Agriculture (Ontario) — Constitutional Jurisdiction

Prepared by Sherwin Lyman, LL.B. of the Manitoba Bar and Jean-E. Brassard, B.A., Barrister-at-Law of the Ontario Bar, updated by Elizabeth Portman, B.A., LL.B. of the Alberta Bar: February 1998

Agriculture (Ontario) — I — Constitutional Jurisdiction

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I — Constitutional Jurisdiction

§1 In each province the legislature may make laws in relation to agriculture in the province and Parliament may from time to time make laws in relation to agriculture in all or any of the provinces. Any law of the legislature of a province relative to agriculture has effect in and for the province as long and as far only as it is not repugnant to any act of Parliament.

§2 Legislation which by its true nature and character is in relation to interest cannot be considered as relating to agriculture in a province.

§3 The term "agriculture" has a much wider connotation than it had 50 or more years ago because of modern methods, scientific equipment, and economic demands and includes many ancillary and incidental activities never dreamed of by our ancestors. Agriculture includes the growing of crops, including nursery and horticultural crops; raising of livestock; raising of other animals for food, fur or fibre, including poultry and fish; aquaculture; apiaries; agro-forestry; maple syrup production; and associated on-farm building and structures, including accommodation for full-time farm labour when the size and nature of the operation requires additional employment. While "agriculture" must be given as wide a meaning as the word will naturally convey including, for example, practical husbandry and tillage, the growing of crops, the planting and care of fruit trees, the rearing of domestic animals, and the sciences applied to or bearing upon those subjects, it would not apply to the marketing of products of agriculture considered as articles of trade.

§4 Parliament does, however, possess the necessary competence to regulate the marketing of products of agriculture in international and export trade, and to co-operate with the provinces which have enacted legislation respecting the marketing of such products within the province. Thus the prohibition of manufacture, possession and sale of oleomargarine or other butter substitutes is ultra vires Parliament, not being legislation in relation to agriculture. But the prohibition of importation of such products is intra vires Parliament as being legislation in relation to trade and commerce. Similarly, provincial legislation purporting to regulate extraprovincial aspects of an agricultural industry, including the licensing of extraprovincial buyers of the commodity, is ultra vires the provincial legislature. In sum, though the jurisprudence concerning the authority to regulate trade and commerce in Canada has developed somewhat haphazardly, it now appears incontestable that federal legislation may validly regulate the compositional characteristics of food products destined for international or interprovincial trade.

§4.1 The courts have held that one of the fundamental purposes of the Canadian federation was, and still is, to facilitate trade and commerce among the various provinces and territories, and to ensure continued and improved access to international markets for Canadian businesses. In sum, a Canadian common market requires that interprovincial and international trade regulations that support it be adopted at the federal level. This includes the ability to regulate standards for products, including compositional characteristics for food products, marketed for international or interprovincial trade.

§4.2 The provinces may in certain circumstances pass provincial agricultural zoning rules that would have the effect of impairing activities that fall within the core of the exclusive federal aeronautics power. Agricultural zoning clearly falls within the centralized jurisdiction of the provincial government.

§5 Parliament may delegate administrative authority to a provincial board to exercise like regulatory authority in an area of federal competence as it exercises in the provincial area. The administrative authority is to be exercised pursuant to federal orders. Lastly, once the courts upheld the constitutional validity of the interlocking federal-provincial scheme for marketing eggs, agreements were reached with respect to other farm products.

§6 Farms are local undertakings subject to provincial authority irrespective of the destination of their output, and the legislative authority extends to the control of production as to quantity. This does not imply any provincial control of extraprovincial trade. Provinces may not, however, make use of their control over local undertakings to regulate extraprovincial marketing, but this does not prevent the use of provincial control to complement federal regulation of interprovincial trade. The control of production, whether agricultural or industrial, is prima facie a local matter and thus a matter of provincial jurisdiction. Egg farms, the kind of factories in which feed is converted into eggs and fowl, are local undertakings subject to provincial jurisdiction under the Constitution Act, 1867 unless they are considered agriculture in which case by virtue of s. 95 the jurisdiction is provincial subject to the overriding authority of Parliament.

§7 The object of the Fertilizers Act, which, inter alia, prohibits the sale of any fertilizer unless it conforms to certain standards and prohibits the sale of any fertilizer that contains destructive ingredients, and which contains provisions respecting packaging and accurate labelling of fertilizers, is to benefit agriculture by requiring the very essential plant nutrients and soil conditions used in agriculture to be of prescribed standards, safe to use, and so described and labelled as to enable purchasers to know what they are purchasing, its uses and the limits of its use. Its object is not to regulate the fertilizer trade or to regulate fertilizer as an article of trade, but it is rather intra vires the Parliament of Canada as being a law in relation to agriculture. In the same vein the Feeds Act which was enacted with the objective of controlling and regulating the sale of animal feeds is a law in relation to agriculture within the meaning of s. 95 of the Constitution Act, 1867 and is intra vires the Parliament of Canada.

§8 The Consumer Packaging and Labelling Act which, inter alia, prohibits the sale of prepackaged products which are labelled with false or misleading representations, is valid federal legislation relating to the criminal law power. The Act provides that no dealer shall apply to any prepackaged product or sell, import into Canada or advertise any prepackaged product that has applied to it a label containing any false or misleading representation that relates to or may reasonably be regarded as relating to that product. In any prosecution for an offence under the Act, it is sufficient proof of the offence to establish that it was committed by an employee or an agent or mandatary of the accused, whether or not the employee or agent or mandatary is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without their knowledge or consent and that they exercised all due diligence to prevent its commission.

§9 A petition will be granted to a creditor where the debtor is not solely engaged in business of farming as he or she is not then entitled to be considered within the exception of the Bankruptcy and Insolvency Act.

§10 The Constitution of Canada does not guarantee unregulated free enterprise. Thus a dairy farmer will be unsuccessful in a claim for the right to market milk without permits from the provincial milk board.

§11 Inspection without warrant by an inspector appointed under the Farm Products Agencies Act to determine if a person is engaged in production of a regulated product without a quota is not an unreasonable search and seizure and therefore does not contravene s. 8 of the Canadian Charter of Rights and Freedoms. It is necessary to distinguish between criminal proceedings and regulatory schemes.

§12 A seizure as contemplated by the Plant Protection Act is a step in an administrative process and does not offend against the protection afforded by the Canadian Charter of Rights and Freedoms. There is clearly a category of public health and safety inspections carried out in commercial or industrial premises where warrantless search and seizure is not only reasonable but essential to the protection of the public good.

§13 The quota system created in the scheme comprising the Canadian Chicken Marketing Agency as authorized by the Farm Products Agencies Act does not discriminate against anyone on the basis of his or her province of present or previous residence and accordingly is not in conflict with the Canadian Canadian Charter of Rights and Freedoms. To the extent that the scheme prevents anyone who was not engaged in interprovincial marketing or did not have an interprovincial quota immediately prior to December 28, 1978, it restricts equally persons not so qualified whether or not they were residents of Ontario.