|
Constitution - Agriculture. Biogenie Canada Inc. c. Canada (Food Inspection Agency)
In Biogenie Canada Inc. c. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from an order "dismissing the appellant’s application for judicial review of the seizure and detention of two soil products (Englobe Environment Inc. v. Canada (Canadian Food Inspection Agency)".
The court considered a division-of-powers challenge to parts of the Fertilizers Act, here focussing on agriculture powers and 'originalist versus evolutionary' interpretation doctrine:[14] In support of its application for judicial review, Englobe challenged the constitutional validity of section 3.1 of the Act and section 2.1 of the Regulations on the grounds that the provisions regulated fertilizer as "“articles of trade”" and therefore fell within the provincial jurisdiction over property and civil rights, not the concurrent jurisdiction over agriculture in section 95 of the Constitution Act, 1867. ....
....
[17] In a judgment rendered on December 12, 2023, the trial judge dismissed the application for judicial review. First, after reviewing the wording of section 3.1 of the Act, its legal effect and the extrinsic evidence filed in the record, he found that the pith and substance of the Act can be described as "“the prohibition of fertilizers and supplements that present a risk of harm to human, animal or plant health or the environment”". On the basis of this characterization, he found that section 3.1 falls within the concurrent jurisdiction over agriculture.
[18] To arrive at this conclusion, the trial judge began by noting that fertilizers and supplements are essential to plant growth and therefore necessarily pertain to agriculture. He set aside the appellant’s argument based on the case law whereby the regulation of agricultural product marketing does not fall within the jurisdiction over agriculture or the regulation of trade and commerce under subsection 91(2) of the Constitution Act, 1867, since the Act does not seek to regulate prices or set quotas for agricultural products but is instead concerned with operations that occur at an earlier point in production. He also rejected the appellant’s claim that section 3.1 cannot fall within the scope of the jurisdiction over agriculture because it covers fertilizers that may have residential, municipal or commercial uses, since there was nothing to warrant a restrictive interpretation of the notion of agriculture. In any event, the Act concerns all fertilizers and supplements, regardless of their use, and the fact that they can be used for non‑agricultural purposes is merely an incidental effect.
....
(2) Jurisdiction over agriculture
[46] The appellant submits that the trial judge erred in his interpretation of the jurisdiction over agriculture by assigning too broad a scope to what constitutes agriculture for the purposes of the division of powers, and by diverging from the interpretation given to this jurisdiction by the Judicial Committee of the Privy Council and the Supreme Court of Canada. As it did before the Federal Court, the appellant conducted a lengthy review of decisions concerning essentially the regulation of agricultural marketing, including The King v. Eastern Terminal Elevator Co., 1925 CanLII 82 (SCC), [1925] S.C.R. 434; Lower Mainland Dairy Products Sales Adjustment Committee v. Crystal Dairy Limited, 1932 CanLII 313 (UK JCPC), [1933] 1 D.L.R. 82, Saskatchewan (Attorney General) v. Canada (Attorney General), 1948 CanLII 317 (UK JCPC), [1949] 2 D.L.R. 145, Canadian Federation of Agriculture v. Quebec (Attorney General), 1950 CanLII 342 (UK JCPC), [1950] 4 D.L.R. 689, and Dominion Stores Ltd. v. R., 1979 CanLII 57 (SCC), [1980] 1 S.C.R. 844. According to the appellant, those decisions establish that the test to determine if a law falls within the scope of agriculture is not whether it concerns a product inherently related to agriculture, but whether, in its pith and substance, it interferes with the operations of farm operators and consequently whether it applies first to farm operators acting in that capacity.
[47] Therefore, based on what it considers the purpose of section 3.1—i.e., regulating the activities of fertilizer and supplement merchants—the appellant (with the support of the interveners) submits that this provision does not fall within the jurisdiction over agriculture because it does not interfere with the agricultural operations of farmers. It does not directly concern the activities of farm operators "“inside the farm gate”" but merely limits the possibility of farmers contracting with manufacturers, vendors, or importers of fertilizers or supplements. The appellant also alleges that the trial judge erred in giving the notion of agriculture a broad and evolving interpretation, since that approach considerably expands this head of power to include its application to a multitude of actors, such as ornamental horticulturists, landscapers and forest managers, amateur gardeners, soil manufacturers, municipalities, golf course owners and others that have nothing to do with agriculture.
[48] In my opinion, these arguments are without merit, do not reflect the state of the case law, and have already been rejected by the Court of Appeal for Ontario in Regina v. Bradford Fertilizer Co. Ltd., 1971 CanLII 599 (ON CA), [1971] 22 D.L.R. (3d) 617 [Bradford].
[49] In that case, the respondent claimed that the Act could not be considered a valid exercise of the federal power over agriculture to the extent that it was an effort to regulate fertilizers as articles of trade or to regulate the trade of manufacturing and dealing in fertilizer. The respondent, like the appellant in this case, submitted that such regulation fell within the provincial property and civil rights power under subsection 92(13) of the Constitution Act, 1867. After reviewing the main provisions of the Act, Justice Arnup (for a unanimous Court) categorically and unequivocally rejected this argument:In my opinion it would be impossible to discuss intelligently the application or use of fertilizer and disregard the connotation of agriculture. The most important aspect of the subject would be missing.
I conclude, both from the provisions of the Act and the Regulations, and from the common understanding of “agriculture” and the place of fertilizer in it, that the Fertilizers Act is a “law in relation to agriculture”. As such, it is a law that s. 95 of the [Constitution Act, 1867] empowers Parliament to pass.
Bradford at 621. [50] Interestingly, the respondent in that case relied on the same decisions cited by the appellant (above at para. 42), which determined that agricultural products, once marketed, fall within provincial jurisdiction. In this respect, the Court of Appeal for Ontario found that those decisions did not exhaust the federal jurisdiction over agriculture and were no more than illustrations of and guidelines for the use that can be made of this power. In concluding its reasons, the Court of Appeal reiterated the following:In summary, therefore, I conclude that the Fertilizers Act was passed to benefit agriculture, by requiring the very essential plant nutrients and soil conditioners used in agriculture to be of prescribed standards, safe to use, and as described and labelled as to enable purchasers to know what they are getting and how to use it. The object of the Act is not to “regulate the fertilizer trade”, although some regulation of that trade and its manufactures and vendors is an obvious effect of the Act. The Act is therefore a law in relation to agriculture, and s. 95 of the [Constitution Act, 1867] empowered Parliament to pass it.
Bradford at 624 [51] While that decision of the Court of Appeal for Ontario does not bind this Court, the appellant and the interveners have not persuaded me that we must diverge from it because it was fundamentally flawed. First, I do not see how the fact that section 3.1 of the Act contains a prohibition, whereas section 3 of the prior version, on which the Court of Appeal for Ontario focused, was more concerned with registration, is significant to the constitutional analysis. After all, section 9 of the former version (now in section 4 of the Act) also set out a prohibition against fertilizers and substances that were harmful to plant growth. And in any event, as the trial judge noted, the decision to subject the marketing of a product to certain standards or conditions or to prohibit its sale does not play a decisive role in its classification within one of the categories of subject matters enumerated in sections 91 to 95 of the Constitution Act, 1867. What is important is the subject matter of the legislation, not the means of intervention chosen by Parliament.
[52] The Attorney General of Saskatchewan (Saskatchewan), supported by the Attorney General of Alberta, submits that the Federal Court applied an unduly broad interpretation of the federal agriculture power, arguing that the jurisdiction over agriculture, although concurrent, falls first within the provincial power and may be exercised by the federal government only in cases involving a national economic interest. According to Saskatchewan, the ordinary meaning of the term agriculture is the business of growing crops or of raising livestock. It does not comprise activities undertaken for aesthetic purposes or the private use of fertilizer in, for example, residential lawns, golf courses or urban gardening. Saskatchewan also criticizes the Federal Court for relying exclusively on definitions from various dictionaries to determine that agriculture is not limited to commercial activities, without taking into consideration the context in which the term is used. Saskatchewan points in particular to the fact that section 95 of the Constitution Act, 1867 confers the power to legislate in respect of agriculture and immigration to the provinces and then to Parliament, and states that the latter may exercise this power "“from time to time”". Finally, Saskatchewan relies on an article by a law student putting forward a literal interpretation of section 95 that limits the exercise of the federal power (Jesse Hartery, "“La compétence concurrente en matière d’immigration : Rendre aux provinces canadiennes ce qu’elles ont perdu”" (2018) 63:3 McGill L.J. 48), on the history of the enactment of section 95, and on excerpts from speeches by certain members of the Canadian and British Parliaments prior to the enactment of the Constitution Act, 1867 to support its position that section 95 confers jurisdiction "“mainly”" on the provinces.
[53] In my view, these submissions have no merit, and the trial judge was right to reject them. I note that Mr. Hartery’s theory has never been accepted by the Canadian courts, as he himself admits (at 532), and that his article concerns solely the power over immigration. The trial judge was also right to emphasize that, in the speech quoted by Mr. Hartery, the Secretary of State for the Colonies merely made a prediction regarding how the power over agriculture and immigration would be exercised, and that this therefore did not constitute a legal analysis of the meaning and scope of section 95.
[54] Furthermore, it must also be noted that the historical evidence on which the interveners rely, specifically the excerpts from the speeches and debates that were cited before us, was not included in the evidence at trial and was not based on an expert historian’s analysis. There is therefore no justification to conclude that the quotations chosen by the Attorney General of Saskatchewan draw an accurate and complete portrait of the historical context. In any event, it is now well established that the originalist interpretation put forward by the interveners, according to which the Constitution, like any other law, should be interpreted in light of the understanding its drafters had at the time, is not accepted in Canada. Although historical evidence may help place a provision in its context, evidence of the drafters’ intent is never conclusive, as the Supreme Court has noted on several occasions: Comeau at para. 55; Reference re Same-Sex Marriage, 2004 SCC 79 at para. 30; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486 at 508–509.
[55] With respect to the scope the appellant would like to give to the expression "“from time to time”", it is, in my view, without foundation. As the Attorney General of Canada argues, this expression appears no less than 24 times in the Constitution Act, 1867, including in sections 24 and 38 (power of the Governor in Council to appoint senators and convene the House of Commons), section 82 (power to convene the legislative assemblies of Ontario and Quebec), and section 101 (power of Parliament to constitute a General Court of Appeal for Canada and other courts). It would not occur to anyone that this expression might restrict or limit the number of times the power to which it refers may be used. The trial judge was therefore right to find that it simply means "“as occasion may arise”" (Decision at para. 58). As he wrote, "“section 95 contains an explicit clause that gives paramountcy to federal legislation, which is difficult to reconcile with an alleged implied limit on federal intervention”" (Decision at para. 59). The decisions he cites in support (Fischbach and Moore of Canada Ltd v. Noranda Mines Ltd., (1978) 1978 CanLII 1849 (SK CA), 84 D.L.R. (3d) 465 (Sask. C.A.) and Lawrie v. Lees (1881), 7 A.C. 19 H.L.) have also never been challenged.
[56] The Attorney General of Alberta, for its part, maintains that the jurisdiction over agriculture must be interpreted restrictively. It relies on the case law relating to the marketing of agricultural products cited by the appellant to argue that only laws that interfere with agricultural operations inside the farm gate can be enacted under section 95 of the Constitution Act, 1867. Inasmuch as section 3.1 does not regulate the activities of farmers but aims instead to limit the activities of producers, vendors and importers of fertilizer and supplements, it cannot be considered to be in relation to agriculture. According to this logic, section 3.1 relates more to the activities of farmers as consumers and should therefore be analyzed as a legislative provision respecting the purchase and sale of a product, which is an exclusive power of the provinces. According to the Attorney General of Alberta, it is not appropriate to distinguish between products that leave the farm and those that enter it: agriculture is limited to what happens inside the farm gate, and it excludes the regulation and marketing of products that farmers both purchase and sell.
[57] Here again, I find that the trial judge correctly disposed of the argument. Initially, no serious argument was advanced to support the position that the jurisdiction over agriculture and immigration must receive a less generous or evolutionary interpretation than the enumerated powers in sections 91 and 92 of the Constitution Act, 1867. Furthermore, in Bradford, the Court of Appeal for Ontario recognized the inseparable link between fertilizer and agriculture, and in my opinion, it is no great stretch to include products that favour plant growth.
[58] I would add that, as the Attorney General of Canada argued, the main purpose of a provision seeking to prohibit the sale, production, importation and exportation of fertilizer or supplements that present risks of harm to health or the environment is not to control the marketing of these products but to prevent their use. By that reasoning, it is difficult to argue that section 3.1 relates to the regulation of local trade or property and civil rights. As the Supreme Court recognized in Ward v. Canada (Attorney General), 2002 SCC 17, a measure prohibiting the sale of a product need not always be analyzed in relation to the jurisdiction over property and civil rights. In that case, it was found that a scheme prohibiting the sale of seals fell within federal jurisdiction over fisheries because the objective and the pith and substance of the scheme was not to regulate or even control trade, but rather to protect the fisheries as an economic resource. Similarly, section 3.1 does not seek to regulate trade in fertilizer, but to prohibit products intended for consumption that could be harmful to health or the environment. Contrary to what is asserted by the Attorney General of Alberta, I see nothing in this approach that has the potential to erode provincial jurisdiction over property and civil rights.
[59] Therefore, for all of these reasons, I am of the opinion that the trial judge did not err in finding that section 3.1 of the Act is a measure validly adopted by Parliament under its concurrent power over agriculture.
|
