Dear Sir or Madam,
Most of the time, the Supreme Court of Canada considers explicitly weighty issues which affect the fabric of our society. Not all cases are like that. This week we will be showcasing some of the weirder cases that have been heard by the courts. Of course, despite their absurd appearance, most of these cases really do have some important lessons. For example, today we review Reference Re Validity of Section 5(a) of the Dairy Industry Act [Margarine Reference]. This case, with its seemingly ridiculous nickname, is actually an important development in the concept of criminal law and federal/provincial jurisdictional boundaries.
In the British North America Act [BNA Act], the provincial governments have control over property rights. This includes producing and selling margarine. One exception is when something is prohibited by criminal law, which is a federal power. We see this in how the federal government is able to ban marijuana and other drugs. (As an aside, be sure to come back next week when we examine the potential effect of these sections of the BNA Act on the upcoming legalization of marijuana.)
In the 1920s, the federal government attempted to ban margarine in an attempt to protect Canadian dairy producers. The Dairy Industry Act forbade the importation, production, and even possession of margarine in Canada. This legislation was challenged and heard by the Supreme Court on October 16, 1949. Justice Rand wrote the decision, which struck down the prohibitions on manufacturing and possession. His evaluation was that a key aspect of criminal law was that there had to be an objective related to “peace, order, security, health, [or] morality”. Rand J. identified that the real motive behind the legislation was trade related rather than an appropriate objective for criminal law. Therefore, the Court ruled that the prohibition was not valid criminal law. Only the ban on importation was upheld by the Court because international trade is with the federal government, not the provincial governments.
Categorization of laws can sometimes be tricky, especially when there is a dispute between provincial and federal authority. It is important to consider both the form and the function of the law. In this case, the form may have been the same as the form for criminal law, but the function was outside of the scope of that category.
Your Humble and Obedient Servants,
1  SCR 1, 1 DLR 433.
2 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(13), reprinted in RSC 1985, Appendix II, No 5.
3 Ibid s 91(27).
4 Controlled Drugs and Substances Act, SC 1996, c 19.
5 Margarine Reference, supra note 1.