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UNIVERSITY OF CALGARY LAW

Constitutional CANS
1st Year, Fall 2012
Lindsay Amantea Fall, 2012

Constitutional CANS

Fall, 2012

Contents
Framework .............................................................................................................................................. 3 Topics .................................................................................................................................................... 10 Introduction ...................................................................................................................................... 10 Introduction .................................................................................................................................. 10 Judicial Review and Constitutional Interpretation........................................................................ 13 Judicial Function............................................................................................................................ 14 Judicial Review .............................................................................................................................. 14 Federalism......................................................................................................................................... 17 Contact to Confederation ............................................................................................................. 17 Interpreting Division of Powers .................................................................................................... 18 Pith and Substance.................................................................................................................... 18 Double Aspect ........................................................................................................................... 19 Ancillary Powers ........................................................................................................................ 20 Paramountcy Doctrine .............................................................................................................. 20 Interjuristidictional Immunity Doctrine .................................................................................... 21 Recent Developments ............................................................................................................... 22 POGG ............................................................................................................................................. 22 Economic Regulation .................................................................................................................... 23 Provincial Powers ...................................................................................................................... 23 Federal Powers.......................................................................................................................... 23 General Regulation of Trade ..................................................................................................... 24 Criminal Law .................................................................................................................................. 26 Federal Powers.......................................................................................................................... 27 Provincial Powers ...................................................................................................................... 28 Tests ...................................................................................................................................................... 28 Charts .................................................................................................................................................... 30 Case Briefs ............................................................................................................................................. 37 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 ................................................................... 37 British Columbia v. Imperial Tobacco, [2005] 2 S.C.R. 473 ............................................................... 38 British Columbia (A.G.) v. Christie, [2007] 1 S.C.R. 873 .................................................................... 38 Provincial Judges Reference, [1997] 3 S.C.R. 3 ................................................................................. 38 Ref re Meaning of the word “Persons” in S. 24 of the BNA Act, 1867, *1928+ ................................. 40 Edwards v. A.G. Canada, [1930] A.C. 123 ......................................................................................... 41 Citizens Ins. Co. v. Parsons, (1881), 7 A.C. 96 ................................................................................... 42 R. v. Morgentaler, [1993] 3 S.C.R. 463 .............................................................................................. 43 Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161................................................................. 43 General Motors v. City National Leasing, [1989] 1 S.C.R. 641 .......................................................... 45 1

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Ross v. Reg. of Motor Vehicles, [1975] 1 S.C.R. 5 ............................................................................. 45 Multiple Access v. McCutcheon, [1982] 2 S.C.R. 161........................................................................ 47 Bank of Montreal v. Hall, [1990] 1 S.C.R. 121 ................................................................................... 47 Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188 ......................................... 48 Canadian Western Bank v. The Queen in Right of Alberta, [2007] 2 S.C.R. 3 ................................... 49 Quebec (A.G.) v. Lacombe, [2010] 2 S.C.R. 453 ................................................................................ 51 Canada (Attorney General) v. PHS Community Services Society, [2011] ......................................... 51 Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373 ......................................................................... 51 R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401 .................................................................. 55 Friends of the Oldman River Society v. Canada, [1992] 1 S.C.R. 3.................................................... 56 Carnation Co. v. Quebec Agricultural Marketing Bd., [1968] S.C.R. 238 .......................................... 56 A.G. Manitoba v. Manitoba Egg & Poultry Assn., [1971] S.C.R. 689 ................................................. 57 Re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198 ......................................................... 58 Canadian Industrial Gas and Oil Ltd. v. Sask., [1978] 2 S.C.R. 545 .................................................... 58 The Queen v. Klassen (1960), 20 D.L.R. (2d) 406 (Man.C.A.) ............................................................ 59 Caloil v. A.G. Canada, [1971] S.C.R. 543 ............................................................................................ 60 Dominion Stores Ltd. v. The Queen, [1980] 1 SCR 844 ..................................................................... 61 Labatt Breweries of Can. Ltd. v. A.G. Can., [1980] 1 S.C.R. 91 .......................................................... 62 General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641 .................................. 62 Kirkbi AG v. Ritvik Holdings Inc., [2005] 3 S.C.R. 302 ........................................................................ 62 Reference re Securities Act (Can.), [2011] 3 S.C.R. 837 .................................................................... 63 Proprietary Articles Trade Assn. v. A.G. Can., [1931] A.C. 310 (P.C.) ................................................ 63 Ref. Re s.5(a) of The Dairy Industry Act (Margarine Reference), [1949] .......................................... 64 RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 .......................................... 65 R. v. Hydro-Quebec, [1997] 3 S.C.R. 213 ........................................................................................... 65 Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783 ..................................................................... 65 Reference Re Assisted Human Reproduction Act, [2010] 3 S.C.R. 457............................................. 67 Re Nova Scotia Bd. of Censors v. McNeil, [1978] 2 S.C.R. 662 .......................................................... 67 Westendorp v. The Queen, [1983] 1 S.C.R. 43.................................................................................. 67

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Framework
1. 2. 3. 4. Facts Issues Result Analysis A. Validity of federal / provincial laws (Pith & Substance Doctrine)  Characterize the pith and substance of the law o Determine the leading / dominant features of the law, looking at the law’s purpose and effects (legal and practical) (Morgentaler) o Consider the legislation as well as relevant extrinsic evidence (Morgentaler, Canadian Western Bank)  Classify the leading feature of the law to the most appropriate provincial and / or federal heads of power o Determine the scope of the relevant head(s) of power (e.g. Citizen’s v. Parsons) o Does the law fit within this scope, prima facie? o Does the law encroach on matters within the powers of the other government?  Incidental effects are permissible (Canadian Western Bank, Lacombe)  “Tack-on” provisions are analyzed via the ancillary powers / necessarily incidental doctrine, sliding scale test (GM v. CNL, Lacombe)  Federal and provincial laws may both be valid in relation to different aspects of the same subject matter (Double Aspect Doctrine - Multiple Access)

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B. Operativity of provincial laws (Paramountcy Doctrine)  If federal and provincial laws are both valid, is there a conflict / incompatibility? o Is there impossibility of dual compliance? o Does the provincial law frustrate the purpose of the federal law?(Rothmans)  If so, federal law is paramount and provincial law is inoperative to extent of conflict  Provincial laws may operate if they duplicate / supplement federal laws (Multiple Access, Canadian Western Bank) C. Applicability of provincial / federal laws (Inter-jurisdictional Immunity Doctrine)  Does valid provincial law of general application purport to apply to a federal work, undertaking, person or thing?  Does the provincial law impair the essential core of federal power or an essential part of the federal entity? (Canadian Western Bank)  If so, provincial law is inapplicable to the federal entity  Doctrine may apply to federal laws purporting to apply to provincial works, undertakings, persons or things (PHS) Conclusion

Alex’s Framework
1. Determine the Validity of the federal or provincial law (Pith and Substance Doctrine) A. Characterize the Pith and Substance (purpose and effects) of the law. a) Determine purpose. b) Determine both the legal and practical effects, as per Morgentaler. c) Look “beyond the four corners” of the legislation to relevant extrinsic evidence, such as Hansard, parliamentary speeches, expert advice (Morgentaler provides the best example of this, but 3

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Canadian Western Bank looked to the actual intents and purposes of what banks had said, beyond what they claimed in court). d) Is there an issue of “colourability”, as per Morgentaler, or Margarine, where an Act is trying to be something when its purposes are clearly designed to deal with another subject entirely. d) Given the purpose and effects of this legislation, characterize it. B. Classify the leading feature of the federal legislation (as instructed in Parsons). a) Determine the scope of the relevant head of power (as per Parsons). Under which enumerated head of power does this fall? Parsons tells us to start with the enumerated heads of power. b) Does the law fit within that scope? c) If it is a federal legislation, be prepared to judge it as falling under one of three traditional federal heads of power: 1) Trade and Commerce Power – s. 91(2) Parson’s test (notably resurrected in Labatt’s) divides it into two appropriate uses: a) Deals w/ interprovincial or international trade. b) Deals w/ general trade and commerce affecting Canada as a whole. - of which Dickson CJ provides a 5 part test in GM v CNL: i) Legislation is part of a general regulatory scheme that (as per the Combines Investigation Act in GM v CNL): - identifies, defines required/prohibited conduct. - creates investigatory procedures. - establishes remedial/punitive mechanisms. ii) Scheme is monitored/overseen by a regulatory agency. iii) Legislation is concerned w/ trade as a whole, not a particular industry (*usually where the fed legislation fails). iv) Legislation is of a nature that provinces are constitutionally incapable of enacting jointly or severally. v) That it would fail if one or more provinces opted out or enacted independent legislation on the matter (MB Egg Reference, Caloil). 2) Does if fall within the criminal law power –s. 91(27)? - is a broad and all-encompassing plenary power. - is not “stuck in time” – can advance and adapt to changes in society. - Requires prohibition and a penalty (as per the PATA case), combined with a criminal purpose that is attempting to prevent a legitimate public “evil” (as per the Margarine reference). - Be cautious of “colourable” language where something attempts to be, (or not to be) criminal, when it isn’t (or is) (as per Margarine). - should deal w/ issues of legitimate public protection and morality; a “valid exercise of the criminal power” should attempt to prevent very real harm (as per Malmo-Levine). - if it has a civil cause of action buried within it, that is usually indicative that it should typically be found to be under the prov head of power 92(13). - a “fundamentally regulatory” scheme should NOT usually be considered criminal (as per Hydro-Quebec) - the difference b/w whether it is a legitimate use of the fed crim law power under s. 91(27), or of the prov “quasi-provincial” power under 92(15) is that the prov power must anchor to some other prov head of power (see Starr v Houlden), and that fed statutes are typically penal, and prov statutes are preventative. - exemptions suggest it should not be criminal, although RJR provided exemptions (usually can’t have exemptions to things like murder, robbery, etc…) 4

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3) Does it fall under the fed gov’t’s POGG power (referenced w/in the Constitution’s preamble)? a) gap. b) national emergency. c) national concern. b) National emergency (Anti-Inflation Act) a) must have a rational basis; b) must be temporary in nature and exceptional; c) must be some crisis of national importance (see Reference re Anti-Inflation Act). d) Look for a sunset clause giving it a temporary nature. c) National concern – Crown Zellerbach provides the test: 1) demonstrate singleness, distinctiveness, indivisibility; 2) new subject matter not envisioned at Confederation; 3) scale of impact on provincial legislation which is reconcilable with the fundamental distribution of power under the Constitution. 4) issue must fail the “provincial inability” test, and one province cannot (or chooses not) to take on the problem. B. Classify the leading feature of the federal legislation (as instructed in Parsons). a) Determine the scope of the relevant head of power (as per Parsons). Under which enumerated head of power does this fall? b) Does the law fit within that scope? c) Be prepared to judge each piece of legislation under these traditional enumerated heads of provincial power: 92(13) – property and civil rights 92(10) prov regulation of local works and undertakings. 92(16) “Generally all matters of a merely local or private nature in the province.” 92A – development, conservation, and management of non-renewable resources, renewable resources, and forestry. Added in 1982. Province’s “quasi-criminal” power: 92(15) – provincial “quasi-criminal” authority, which must be anchored to some other power to remain valid (remember Westendorp, Chatterjee, and McNeil; can contain preventative/deterring/ enforcement provisions, but not penal sanctions. - s. 92(14) – the policing power is given to the provinces - s. 92(15) - imposition of punishment of fine, penalty, or imprisonment for enforcing - is an enforcing mechanism – it does NOT stand on its own, but must be anchored to another legitimate prov head of power. - so the question in using s. 92(15) is always where is the anchor? Usually s. 92(13), but occasionally s. 92(16). C. Does the law encroach on matters within the authority of the other government? If so, merely incidental effects are permissible (as per GM and Canadian Western Bank). - however, from GM we can test if: 1) If minor encroachment, only need to show that it is “functionally related” 2) If a major encroachment, must show that that the encroaching provision can be defined as necessarily incidental (ancillary power doctrine, as per GM). - remember the examples from Queen v Klassen, and Kirkbi v Ritvik; could also argue Carnation. - Be wary of “tack-on” provisions, that are not necessary to the survival of the parent Act. Such an invalid provision can be severed, but the rest of the statute left as valid. 3) Note use of ancillary powers doctrine from Kirkbi: CB 412: “Whether the provision is sufficiently integrated into the otherwise valid statute.” - 2 parts

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1) appropriate test of ‘fit’ – “how well the provision is integrated into the scheme of the legislation and how important is it for the efficacy of the legislation?” - Yes? Considered sufficiently integrated. Then intra vires. - No? cannot be sustained under 2nd branch of 91(2) 2) s. 7(b) only “minimally intrudes” into prov jurisdiction over property and civil rights. s. 7(b) in its “pith and substance, directly connected to the enforcement of trademarks and tradenames” D. Is it possible that both the prov and fed legislation are valid? If so, this is a manifestation of the Double Aspect Doctrine (as per Multiple Access). 2. Operativity of the provincial law (Paramountcy Doctrine) A. If both are valid, is there a conflict? Two-part test is provided by Rothmans: 1) Is there possibility of dual compliance (as per Ross)? 2) Is there frustration of the other gov’t’s legislative intent, or repugnancy (as per Rothman’s, where in fact the fed gov’t said the prov gov’t’s machinery “enhanced” the federal legislation, or like in BMO v Hall, where the Sask legislation was found to frustrate the federal Bank Act’s intent and found to be “repugnant”)? B. If a conflict is found, then the federal law will be paramount, and the prov law will be read-down as inoperative to the extent of the conflict. - Remember that prov laws are often found to supplement/duplicate federal ones (Multiple Access – “double protection”, Canadian Western Bank, Rothmans, Rio Hotel) in an effort to avoid annulling provincial legislation. 3. Applicability of prov laws (Interjurisdictional Immunity Doctrine – IJI) A. Only use if the prov law of general application “impairs” a “core” element of a federal work, undertaking, person, or thing (as per Canadian Western Bank)? If so, that prov law is inapplicable to that fed work, undertaking, person or thing. B. Remember, that as per Canadian Western Bank, the list of relevant federal works, undertakings, persons, or things, is deemed a finite and closed list, to include: - federal elections - telecommunications undertakings - interprovincial railway and trucking undertakings - postal service - banking - aeronautics - navigation and shipping - military - Aboriginal peoples and lands - RCMP - Federal parks - Criminal procedure

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1. VALIDITY
Pith and Substance Characterization
A. Identify the “matter” of the statute (dominant feature) “A law’s “matter” is its leading feature or true character, often described as its pith and substance.” (Morgantaler) There is no single test – flexible approach necessary over technical approach. Purpose and effect is important the DOMIANT purpose is the key. B. Examine the purpose and effect of the legislation i. Legal Effect: legislation effect on rights and liabilities from the terms ii. Practical Effect: social or economic effects iii. Extrinsic Evidence: forms, debates etc. (weight) to determine intent iv. History of Legislation: events leading up to… v. Judicial Decisions C. Conclusion (general statement of characterization) Parsons (Montague Smith vs Gwynne): impeach any s. 92; in relation to the 92 provision does it also come within anything within s. 91. Two enumerated lists of equal consideration as a creation by our forefathers in respect of regional concerns. Does it fit in a section? If yes, prima facie valid but consider other encroachments… NEXT: Are there dual features is the law “in relation to” one matter or does the law “merely affect” one matter. Relevant Cases: Citizens Ins. Co. v. Parsons (P&S, “matter: mutual modification”) R v. Morgentaler (P&S, purpose and effect)

Ancillary Powers Doctrine
Used when a provision is impugned for intruding into another level of government’s jurisdictional power. (If federal undertaking – go to Parmount/IJI) A. Incidental Effects? If the incidental effects are secondary then they are not the feature of the law and are permissible. “Incidental effects can validly affect.” (Hogg) (Carnation: local marketing; inter-provincial trade) B. Ancillary Powers (if provision is challenged)  Used where impugned provision is part of a larger scheme. A.K.A TACK-ON provisions.  Is the tack-on sufficiently connected with the rest of the law? TEST: Determine “FIT” 1. Does the provision intrude on the other government’s powers and if so to what extent? See “heads of power below” 2. Is the legislation as a whole, valid? 3. Is the impugned provision sufficiently integrated with the valid scheme? Same test not approp. In all contexts  Low level of intrusion: Rational Functional Test (Is there a rational or functional connection between the tack-on and the legislation – does the legislation still make sense without it?)  High level of tack-on intrusion: Necessarily incidental Test (is the tack-on a necessary part of the legislation for it to operate?) If valid – provision stays If invalid – provision severed, but rest of statute valid. ** Inclusion of an invalid provision in a valid statute does NOT stamp the provision with validity Relevant Cases: General Motors v. City National Leasing (test)

Double Aspect Doctrine A. Subjects which is one aspect fall within section 92 may for another aspect or purpose fall within section 91. B. If the contrast between the relative importance of the two features of the challenged rule in question is not so sharp, the rule can be enacted by either level of government. C. Cumulative and Duplication are allowed by either Parliament of the Prov. legislature. “Duplication is the ultimate harmony.” (and the price we pay for federalism) Old Man River tells us that environmental issues can adequately sit in Double Aspect as long as the legislation is grounded in a relevant provincial head of power. Mere duplication w/o actual conflict or contradiction is not sufficient to invoke doctrine of paramountcy and render otherwise valid provincial legislation inoperative. Relevant Cases: Multiple Access v. McCutcheon

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2. OPERABILITY
Doctrine of Paramountcy
In cases of conflict between federal and provincial laws, federal law is paramount and provincial law is rendered inoperative to the extent of the conflict. Test: Determine if there is conflict (Test estab. In: Smith v. the Queen) A. Operational Incompatibility - is there an impossibility of Dual Compliance? Impossible for client to follow both? (Ross) B. Is there a frustration of purpose? (BMO v. Hall) If either is or both is proven, Federal law prevails. Prov. law is inoperative to the extend the conflict arises. If they are not proven, the more strict law prevails. Relevant Cases: Ross v. Registrar of Motor Vehicles (Conflict Impossibility of dual compliance) Bank of Montreal v. Hall (Frustration of Purpose) Rothman’s, Benson & Hedges v. Saskatchewan (Final test – both elements) Canadian Western Bank v. Alberta (All tests – order of analysis)

3. APPLICABILITY
Interjurisdictional Immunity Doctrine (Watertight)
Provincial laws are not allowed even to have an effect on federal laws where this applies. Recognizes that the constitution is based on exclusive powers, not concurrent powers. So “exclusive powers” cannot be invaded. Don’t need federal law for IJI to apply.. fed. May not have even legislated ie) federal matrimony  no legal vacuums but stay away from core If a provincial statute impairs (and not just affects) an essential part (core) of a Federal undertaking, that provincial statute is rendered inoperative. (CWB) Fed. Undertaking limits power in 92(10)(c) **Dickson C.J. In CWB case says this should not be overly used – courts should favour the ordinary operation of statutes in both levels of government. Relevant Cases: Mackay v. The Queen Bell Canada v. Quebec (“Affect rule”) (On a spectrum) Canadian Western Bank v. Alberta (“Impair rule” – changed it)

Provincial Heads of Power (S.92)
92(13) – Property and Civil Rights Includes intra-provincial trade and commerce 92(10) – Local works and undertakings Defines Federal undertakings by what’s not included 92(14) – Administration of Justice in the province 92(15) – Can enact penal sanctions (but ancillary power) Authorize penal sanctions to enforce provincial regulatory schemes that are validly anchored elsewhere in s.92. (McNeil) Regulation of Public Order and Morality Nova Scotia Board of Censors v. McNeil Westendorp v. The Queen – provincial response to dislike of a federal statute. Can be found to be ultra vires as a result.

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Federal Heads of Power (S.91)
91(2) – Regulation of Trade and Commerce Deals with interprovincial, international and general trade Need to look at what the legislation was aimed at PROVINCIAL (INTRA) a) Carnation case: Price set in province, products exported. Determined to be a mere incidental effect. Legislation was aimed at intra provincial T&C. Question was whether orders were made “in relation to” inter provincial T&C. b) Manitoba Egg case: Eggs produced inside and outside Manitoba. Deals with prices, marketing, production, etc. – different from carnation. Affected all farmers. Aimed at regulating egg industry, inter provincial trade. Board controls imports, more than incidental effect. c) Agricultural Products Marketing Act: Production is a local matter d) CIGOL case: Indirect tax aimed directly at export of oil – inter provincial trade. It was essentially the creation of an export price. e) 92(A) – Provinces can make laws on export of non renewable natural resources, forestry, electrical energy after primary stage of production. FEDERAL (INTER PROVINCIAL, INTERNATIONAL) a) Eastern Terminal Elevator case: Handling grain from minute it is produced to minute it is exported internationally is a federal affair. b) Klassen Case: Federal legislation can go beyond interprovincial and international trade to “incidentally affect” the production and marketing of grain within the provinces, though it may be traded intra provincially. c) Caloil case: Controlling imports to foster the development and use of Canadian oil resources. Refused licenses to importers where oil was not consumed in province. Interference was INTEGRAL to the larger scheme. d) Labatt case: Selling “special light beer” – produced all over Canada, consumed locally, provincial power. Prof said had problem with it because didn’t look at act as a whole – could be general trade. FEDERAL (GENERAL TRADE AND COMMERCE) General Motors Case: 5 Criteria (List not exhaustive, don’t need to prove every one) 1. 2. 3. 4. 5. The impugned legislation must be part of a general regulatory scheme. The scheme must be monitored by the continuing oversight of a regulatory agency The legislation must be concerned with the trade as a whole rather than with a particular industry – MOST IMPORTANT The legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting The failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country

Fall, 2012
Federal Heads of Power (POGG)
(if options exist under enumerated and not mention of emergency it makes a POGG analysis unlikely by the courts) 1. National Concern Doctrine i. Must be a new matter since confederation and matters which have evolved from being of local nature to of national concern ii. Must be a subject matter that is single, distinctive and indivisible, distinguishing it from matters of provincial concern. Provincial inability test – a province would fail to rectify the problem alone. Effect on extraprovincial interests of a provincial failure to deal with intraprovincial aspects of the matter. iii. The scale of impact on provincial powers – is the matter reconcilable with the division of powers? Does it have reasonable and ascertainable limits? Authority = Crown Zellerbach Consider consequences as if it fits as a new power it becomes federal issue permanently. List: Environment, Airports, National Capital Region, Aeronautics, Marine Pollution, Atomic Energy CASE: Re: Anti Inflation Act – POGG reserved for combating/preventing serious emerg. R. v. Crown, Zellerbach Canada Ltd. 2. Emergency Powers Doctrine  Reserved for matters that require “crisis” legislation  Legislation that is temporarily necessary for government to address a national crisis.  There need not be an actual emergency, only a perception or apprehension of a crisis  See process for doing so in CANS (Emergencies Act) (but maybe not bound)  Extrinsic evidence like CPI and white paper are helpful to provide rational basis CASE: Re: Anti Inflation Act 3. GAP - Residual branch of POGG

Federal Heads of Power S.91(27)
TEST: 1. Form of legislation: Must have prohibitions and penal consequences attached to the prohibition. (PATA CASE) 2. Must have a valid criminal law purpose (must be directed to suppress and evil, injurious, or undesirable effect upon the public) (MARAGINE REFERENCE)  Protection of public peace  Order  Security  Health  Morality  Environment (Hydro Quebec) Note: Legislation cannot be colourable - cannot tack-on prohibition and penalty to be able to regulate anything. Note: Criminal law CAN contain exemptions (RJR Macdonald, Firearms) Note: Feds can use criminal law indirectly (Firearms) CASE Proprietary Articles Trade Assn v. AG Canada (PATA) Reference Re. s.5(a) of the Dairy Industry Act (Margarine Reference) RJR Macdonald Inc. v. Canada R. v. Hydro Quebec Reference Re: Firearms

CASE Carnation Co. v. Quebec Agricultural Marketing Board Attorney General for Manitoba v. Manitoba Egg and Poultry Association Canadian Industrial Gas and Oil v. Saskatchewan The King v. Eastern Terminal Elevator Co.

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Topics
Introduction
Introduction Constitutional Law is: - an assortment of important rules, principles, and practices relating to the governance of society - a way of finding a means to live together in mutual respect - open-ended set of rules, principles, and practices that represent efforts to identify, define and reconcile competing rights, responsibilities and functions of gov’t, communities and individuals. Constitutional Law Expresses: - Conceptions about the social organization that affects all aspects of our lives (especially as members of a political society) - social opposition (honouring community commitments vs. respecting individual autonomy Constitutions address: - the structures, procedure, and powers of governmental institutions - the nature and scope of individual rights and responsibilities in the face of public power - relations between collectivities & collectivities and governments (ex. Aboriginal peoples and the Canadian state) Constitutional provisions (clauses) provide: - legally enforceable obligations - ground judicial decisions concerning the constitutionality of the exercise of power - symbolic role: setting our fundamental values & aspirations of a country

4 major features:
1. Parliamentary democracy - Ensures general laws are made by an elected legislature who confers power over an executive, the cabinet - Comes from CA 1867 ss. 4 and 5 (legislative power, provincial constitutions) the constitution or circumscribe its application. 2. Federalism - Division of government along territorial lines - Enact laws over matters of national concern 3. Individual and Group Rights - The Charter, Judicial decision (what Charter provisions mean in greater detail, aka Case Law) 4. Aboriginal Rights Rights recognized by the constitution as belong to Aboriginal ppl since they lived on the continent prior to European contact - Element of the common law - Indian Act (statute); established treaties; Constitutional Act, 1982; Royal Proclamation (recognition of rights and relative position of Aboriginal people; Case Law) - Parliamentary democracy & Federalism are the governance features (constitutions, conventions and unwritten rules) Other features: - Rule of Law: gov’t will exercise power in accordance to the law
Four major features:

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1. Parliamentary democracy: ensures that the general laws are made by an elected legislature. a. Comes from constitution act of 1867, section 4 and 5 (legislative power, provincial constitutions) b. Section 3 – executive power i. Governor general and Lieutenant governor serve as representatives of the Queen ii. Consult, defacto the cabinet – members drawn from legislative branch of the government (so there is some overlap) iii. Implement and administer policy c. Judicial Branch – Part 7 of CA 1867 – function is to interpret the law and resolve disputes that arise i. Sometimes there is overlap and conflict between parts of the government. ie. women covering face when voting d. Parliamentary Supremacy – Parliament is supreme, and no other institution could legally modify the constitution or circumscribe its application i. 1982 changed parliamentary supremacy to constitutional supremacy 2. Federalism/Division of Powers – recognition that the federal and provincial governments have different powers a. Comes from part 6 of the constitution act of 1867 (distribution of legislative powers) b. Much overlap in powers of the Fed and Prov governments 3. Rights – limits on government power, or responsibilities of the government a. They come from the Charter of Rights and Freedoms b. Common law was a source of rights before the charter 4. Aboriginal Rights -Other constitutional documents include the Royal Proclamation 1763 (issued by British Crown after conquered Quebec), the Quebec Act, and the Alberta Act. -other sources include texts, judicial decisions, conventions, and the common law -British Statute of Westminster in 1931 – no further British statute would apply to Canada unless enacted at the request and with consent of Canada. 1. Idea that gov’t officials are subject to the law and can’t act arbitrarily and therefore must act in accordance with the law 2. Could be considered as ‘constitutional convention’ - Conventions: rules developed through gov’t practice & enforced by political sanction and not by the courts - Legislative Supremacy (prior to 1982): was central to the British Constitution

Sources of the Constitution
Common Law: - Source of Canadian rules for the recognition of Aboriginal Rights and the law of parliamentary rights - Provides measure of protection for individual rights Conventions: - Not legally enforceable but lie at the heart of the constitutional tradition - Ex. Principle of responsible gov’t: executive in House of Commons or provincial legislature is chosen from the party(ies) with the greatest support in the House 11

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British Crown & The British Parliament: - They have created some of the significant constitutional documents - Ex. Royal Proclamation of 1763: issued after the British conquest of Quebec, is a source of constitutional protection of Aboriginal Rights - Ex. Quebec Act 1774: allowed French Civil Law to continue in Quebec - Ex. British North American Act 1867 (aka Constitution Act 1867): created new country of Canada (terms of union varied b/t provinces) 12 Principles of the Rule of Law: 1. Freedom from private lawlessness (coercion) 2. Government under law 3. Ordinary (substantive) law should possess certainty, generality, and equality 4. Mechanisms must ensure the congruence of law with social values 5. The effective and impartial enforcement of law and order (against private coercion) 6. The enforcement, through procedures and institutions, of government under law 7. The assurance of the independence of the judiciary 8. A system of legal representation: an independent legal profession 9. The application (and enforcement) of the principles of natural justice 10. The accessibility of the courts 11. The assurance of “impartial and honest” law enforcement 12. An “attitude of legality”: the application of law in spirit as well as in letter British North American Act 1867 - Drafted to provide a measure of self-government for a British Colony (much was left unsaid about operation of the parliamentary institutions and structures, no mechanism to change the Act domestically) - As Canada grew it gradually moved toward independence from the UK, known as `British Statue of Westminster in 1931 (no British statute would apply in Canada unless enacted at request and with consent of Canada - 1949: another badge of colonial status was removed as appeals to the Judicial Committee of the Privy Council were abolished - Early 1960s: pressure for constitutional reform in Canada (mainly from Quebec), provinces wanted the Act to be patriated in addition to changing various parts of the Act (many of these were achieved in the 1982 act): 1. Rearrange the powers & functions of the federal & provincial gov`t 2. Reform Senate and replace it with a more representative body 3. Give SCC constitutional status 4. Give constitutional recognition to the rights of Aboriginal peoples in Canada Canada Act, 1982 - This act was patriated & introduced fundamental changes to Canada`s constitution - The Changes and Amendments: 1. protection of individual & group rights in the Canadian Charter of Rights and Freedom (gave courts a new role) 2. affirms existing Aboriginal and treaty rights 3. altered the distribution of power in relation to natural resources 4. qualifies legislative supremacy as a basic element of the Constitution - Problems with this Act still arose: 1. Gov`t of Quebec felt that it failed to address Québec’s traditional demands (controls on the federal spending power, increased power for Quebec legislature) 12

Constitutional CANS

Fall, 2012

Meech Lake Accord, 1987 - Written in an effort to win Quebec`s support with the 1982 Act - It was a set of proposed constitutional amendments 1. Recognition of Quebec as a distinct society 2. Canada as a country with 2 linguistic groups 3. Controls on federal spending power 4. Mechanism to constitutionalize federal-provincial immigration agreements 5. Changes to the amended formulas - Accord died in 1990 b/c did not have support in all provincial legislatures by the expiry date Charlottetown Accord - Pressure for further reform came from a number of sources (Quebeckers, Aboriginal ppl and Westerners) - This accord was created and was much more comprehensive than Meech Lake Accord - Was rejected by a majority of voters in national referendum in 1992 Judicial Review and Constitutional Interpretation Specifically relating to part VII (Judicature) of the CA 1867 Superior courts - S96-100 – CA, QB • Appointment done by Governor General by the advice of cabinet • Superior courts operating at the provincial level can hear matters of both provincial and federal legislation o Ie. QB hears matters regarding divorce Inferior Courts - S92(14) • Judges appointed by Lt. Governor (Province) • Inferior courts deal with both Federal and Provincial matters (ie. criminal code is federal legislation) • Inferior courts only have jurisdiction given to them by statutes while superior courts have inherent jurisdiction Federal Courts – S101 • Establishes the authority to appoint judges to Federal courts • Federal courts deal with immigration, citizenship, etc. • NO provincial laws are dealt with in Federal courts – they only have statutory authority • Does not have inherent jurisdiction – limited to applying “federal laws” Supreme Court of Canada - S100 CA, 1867 • Top level of court in Canada • Acts as a final appeal court as well How do judges interpret a written constitution, especially when the text is unclear? And what sources of guidance do they employ? Philip Bobbitt cites six forms of ‘argumentation’: 1. historical- look at the intent of the people who drafted the constitution and those who adopted it 2. textual- ‘drawn from a consideration of the present sense of the words of the provision in question’

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3. doctrinal- arguments from previously decided cases (this is probably the predominant form of argumentation in Canada) 4. prudential- arguments about costs and benefits (aka practical arguments) (how best the government task in question can be performed) 5. ethical- ‘relies on the characterization of American institutions and the role within them of the American people’ (how we think of ourselves as a society) 6. structural- ‘inferences from the existence of constitutional structures and the relationships which the Constitution ordains among these structures’ Two other distinctly Canadian forms of argumentation: - the use of the preamble of the CA 1867 to demonstrate the intent of the document - the use of the four organizing principles of our Constitution (federalism, democracy, the rule of law and the protection of minorities). Judicial Function Judicial Independence: financial security, security of tenure, and institutional independence • The judiciary is separate from the other parts of the government – judges are free to make decisions without governmental interference Independence of the Judiciary - Courts have had to find the concept of judicial independence particularly in the powers that authorize fed gov’t to establish SCC and in section 96 (the appointment power) and have also drawn on the context (preamble). - Superior Courts: province establishes the court but the federal gov’t appoints the judges (a little analogous to the ERCB issue) - Questions have arisen about independence of judiciary: wrt to judges being too highly paid, mandatory retirement ages 1. Gov’t is trying to control judges’ independence via their income and retirement age The rule of law is key here- it establishes that the government and citizens are to be governed by law and this is administered by the courts. This principle has been enshrined as a fundamental constitutional principle. Court Structure Section 92(14) statues the provinces are responsible for the administration of provincial civil and criminal courts (superior ones where the judges are appointed federally and inferior ones where the province appoints). (Sections 96 to 98 deals with appointment of judges) Judicial Review and the legitimacy issue Judicial review: the power of the courts to determine (when asked to do so) if an action taken by a govt body or legal actor (parliament for example) is or isn’t in compliance with the constitutional. If it isn’t, the act is declared unconstitutional. Since 1982 this has been written directly in our constitution- before that it was an extension of British laws interpreted by our Supreme Court. Judicial Review - Power of the courts in Canada to determine, whether action taken by a governmental body or legal actor is or is not in compliance with our Constitution and if they find that it is not to declare it to be unconstitutional Constitutionalism: - Governmental action has to comply with the requirements of the Constitution

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Constitutional CANS

Fall, 2012

In Canada, there seemed from the very beginning to be relatively little doubt that judicial power existed - Since 1982, power of judicial review has been given recognition in the Constitution - Underlying questions about the legitimacy of judicial review is a concern that it can result in actions of elected representatives of the people being declared of no force or effect of appointed judges. - Some propose that the judicial review is antidemocratic while others propose that the judicial review is democratic and suggest approaches that courts can be taken to exercise the power of judicial review. Legitimacy issue did not dominate discussion of judicial review until the latter part of the 19th Century. - This is b/c legal culture was such that those who commented on the courts performance in the area of constitutional law either did not think in terms of legitimacy of judicial review as an issue the way we do or were less willing to raise it. What is judicial review? (legislation needs to be in compliance; some actions by gov’t that are not legislature that have constitutional implications such as judicial independence) What are the alternatives to judicial review? Parliamentary supremacy Federal-provincial negotiation There are therefore alternatives to judicial review those of which could be resolved by elected officials rather than appointed officials (such as in Judicial reviews) The idea at the bottom of all of this is legitimacy - Judicial review is thought to be legitimate for a few reasons: legalistic reason (preamble of CA 1867) role of the court in this matter had evolved prior to 1867; s. 52(1) of CA 1867 (Constitution of Canada is the Supreme Law), combine this with remedial act. S. 24 of the CA 1982 - Idea is clearly accepted in Canada and can be justified as a matter of convention 1. How do Constitutional Issues get to Court? a. Ordinary Litigation and the Rules of Standing i. Constitutional issues may be brought up in 1. Ongoing criminal or civil proceedings 2. Challenging the validity of legislation 3. Defending against a criminal or penal prosecution 4. Seeking a declaration that a law is invalid ii. Rules of Standing: determines who has sufficient interest in a legal issue to be allowed to raise it before a court iii. Historically, rules of standing required: 1. individual’s own interests be directly affected by the law being challenged 2. individual be affected by the law in a way that is different from the public iv. this would preclude and individual citizen from challenging the validity of a matter of public interest v. rules changed with a new category called “public interest standing” to be granted at the discretion of the courts b. The Reference Procedure 15

Constitutional CANS

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i. Governments are aloud to refer important legal questions directly to an appellate court for an advisory opinion ii. Power comes from S53 of the Supreme Court Act 1. the interpretation of the constitution acts 2. the constitutionality or interpretation of any fed. or prov. Legislation 3. the appellate jurisdiction respecting educational matters by the Constitution Act, or any other Act or law vested in the Governor in Council 4. the powers of parliament of Canada, whether or not the particular power in question has been or is proposed to be exercised iii. See page 48 for requirements of parties c. Notice Requirements i. Supreme Court needs adequate notice if there are constitutional challenges to legislation ii. Provincially, need to notify federal attorney general and the attorney general of the province in question iii. See notification rules on page 60 d. Parties and Intervenors i. Attorney general will intervene in litigation between private parties pursuant to a notice of a constitutional question, and those parties become intervenors(check to see if this is correct) 1. intervenors have the right to file a written submission called a factum. Rules of Standing - Determine who has sufficient interest in a legal issue to be allowed to raise it before a court - Historical and in a way that was different from the public at large * THIS HAS JUST BEEN CHANGED WITH THE VANCOUVER SEX WORKERS CASE The Reference Procedure: - Another way co - Gov’t can refer important legal questions including constitutional issues directly to an appellate court for an advisory opinion - Provincial cabinets send reference questions to provincial appellate courts - Federal cabinet sends its reference questions directly to SCC - Appeals are allowed from provincial references to the SCC - Reference Procedure is unusual since it may produce court cases that depart from the common law requirement that legal issues be dealt with by courts only in the context of concrete disputes b/t interested parties. - This procedure places courts in too political a role by requiring them to deal with hypothetical issues (however reference cases are mounted since they usually arise from multiple parties have similar challenges) - This procedure provides relatively quick mechanism for obtaining a definitive answer on a question of constitutional validity b/c bypasses trial level proceedings - Reference cases do not carry the precedential weight of decision made in the context of ordinary litigation (they are considered authoritative) Parties and Intervenors

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- Where constitutional issues arise in the course of private litigation or in context of criminal/penal prosecution, a request for intervention requires that court to balance concerns about unfairness to the parties - In reference where private interests are not exclusively at stake, intervention raises fewer concerns but courts may place some limits.

Federalism
Federalism: sharing of political power; political and legal response • Alternative: unitary state, with a central government • Federal government has the ultimate power – up to the Senate and House of Commons to make laws for the peace, order, and good government of Canada… Section 91: Any powers not given to the province are retained by the Federal Government Section 92: Deals with enumerated power that provincial governments have How have the courts interpreted the language of the enumerated rights? Contact to Confederation  A federal state is a political contrivance intended to reconcile national unity and power with the maintenance of state rights. Whatever concerns the nation as a whole should be placed under the control of the national government. All other matters fall into the hands of the states.  Dicey: Federalism means legalism – the predominance of the judiciary in the constitution – the prevalence of a spirit of legality among people  The bench therefore can and must determine the limits to the authority of both of the government and of the legislature – so it is the guardian and the master of the constitution. The Compact Theory Foundation: the colonies had made a compact, ratified by the British Parliament, creating the Dominion and conferring powers and property and, after Confederation, they continued to exist as the new provinces. T.J.J. Lorranger was one of the first to express this theory. Says the elements are: 1. In constituting themselves, the provinces did not intend to renounce their autonomy, and preserved it for all that concerns their internal government. Federal association was formed for interprovincial objects, and from provincial powers arose the federal government to which the provinces have ceded some rights. 2. At the time of confederation, everything that belonged to the provinces became the property of the central government, so the compact did not create a single new power – it just transferred it. (This theory is not used much any more, and it’s main criticism is that it is fundamentally inaccurate. Another criticism was based on the BNA Act, and contrast of opinion about whether or not the compact should be recognized just as a historical event and should be used for interpretation) The Power of Disallowance • Entitles the Governor General, acting on the advice of the federal cabinet, to reserve for up to one year and then disallow any enactment of the provincial legislatures. This did not fit well with Canadian Federalism premised on equality of authority. • WPM Kennedy: It would be safer if the decision in such cases was left to the courts, and not to the Minister of Justice. This tends to make him too supreme. • By the mid-19th century, this power fell into disuse.

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Constitutional CANS
Interpreting Division of Powers

Fall, 2012

3 types of arguments that can be used to challenge statutes on the ground of division of powers: 1. Challenge the validity of a statute 2. Limit the applicability of valid statutes  This is also known as interjurisdictional immunity  limits the application of provincial statutes to protect the exclusivity of certain federal heads of power 3. Limit the operability of provincial statutes  Provincial law will be inoperative if it conflicts with a valid federal statute that also applies to the same facts  also known as federal paramountcy rule
There are 3 types of arguments that can be used to challenge statutes on the ground of division of powers: 1. Validity – challenges the validity of a statute on the grounds that it is in its dominant characteristic (or pith and substance) in relation to a matter beyond the enacting legislature’s jurisdiction and thus within the exclusive jurisdiction of the other level of government. Can be made equally to both levels of government. 2. Applicability – Even if a statute is within the enacting legislature’s jurisdiction, it may have to be limited in its application (or read down) so as to not touch matters at the core of the other level of government’s area of exclusive jurisdiction. Also known as the Interjurisdicitonal immunity doctrine. Limits the application of provincial statutes to protect the exclusivity of certain federal heads of power (cannot be used to limit the application of federal statutes). 3. Operability – Even if the provincial law is valid, and even if it is applicable, it will be rendered inoperative if it conflicts with a valid federal statute that also applies to the same facts (federal paramountcy rule). Works against the operation of provinvial statutes to protect the primacy of federal policies embodied in valid federal legislation. R. Simeon – “Criteria for Choice in Federal Systems” Federalism can be evaluated from three perspectives: 1. Community – Federalism works to obtain a balance between regional and national political communities. Asks “which set of people do we assert a common citizenship?” We focus on nation and province because it is these communities which have been institutionalized, and which have governments with the capacity to define and articulate community interests. 2. Democracy – How does Federalism affect participation, responsiveness, liberty and equality? One argument is that the fundamental purpose of Federalism is to reduce the possibility of tyranny, and another is that smaller units of government provide better responsiveness. Both views have opposing arguments. 3. Functional Effectiveness – Federal and provincial governments are responsible for governing the country and for satisfying the needs of citizens – to provide them with a mix of policies which they prefer. Arguments that Federalism in ineffective because it is too decentralized… citizens hampered by differing provincial and federal regulations. Also too centralized because the federal decision making apparatus is overloaded. Finally, there are arguments about the cost of overlapping responsibilities of governments. Pith and Substance Definition: Used to determine under which head of government a given piece of legislation falls. 1) Law at issue is characterized by its most dominant feature 2)law at issue is classified under section 91 or 92. ‘Pith and Substance’ is used when one level of government has encroached upon exclusive jurisdiction of other level of government. 18

Constitutional CANS

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Section 91 – Sets out a list of 30 classes of subjects which are said to fall exclusively within federal legislative competence. Section 92 – List of 15 classes of subjects which are said to fall exclusively within provincial legislative competence. There has been controversy with POGG power in s.91  some argue that federal classes are illustrative only (federal power is general is scope  unlimited by anything except the list of provincial powers); while others argue the classes are an independent source of federal power (opening words serve to give federal gov’t residuary power to deal with matters not expressly assigned to provincial/federal jurisdiction) In deciding the validity of law, a court engages in a process of classification to determine whether the law comes within a federal or provincial class of powers. “A rule of law for purposes of the distribution of legislative powers is to be classified by that feature of its meaning which is judged the most important one in that respect” 1. Identify the “matter” of the statute (dominant feature, purpose (this means the problem underlying the legislation which the legislature is trying to address) and effect) - To determine this a court will look at a variety of aids: o Statutory context o Purpose of the legislation (illustrated by legislative history/gov’t reports identifying problem with triggered legislation) 2. Delineate the scope of the competing classes (legislative scheme, judicial precedent, history) 3. Determine the class into which the legislation falls When a particular rule has features of meaning relevant to both federal and provincial classes of laws, you must ask “is it better for the people that this thing be done on a national or provincial level?... Who is the better physician to prescribe for this malady?” Double Aspect  How to deal with the overlap between Federal and Provincial legislative powers  Courts have limited the generality of the classes by “mutual modification”, by saying that statutes are to be read in a particular way so as to avoid overlap. (ie. regulation of trade and commerce vs. property and civil rights) – this does not solve everything  Some overlapping inevitably remains. When this occurs, either one of two things has then been done: 1. The nature of the challenged law relevant to a provincial class of powers has been completely ignored as only an “Incidental affectation” of the provincial sphere, and the law concerned has been classed only by that feature of it relevant to a federal class of laws  federal Parliament has power to enact the challenged law. 2. If contrast b/t the relative importance of the two features is not so sharp  Double Aspect theory of interpretation  Double Aspect Doctrine (Double Matter Doctrine): federal and provincial features of the challenged rule are of roughly equivalent importance so that neither should be ignored respecting the division of legislative powers, the decision is made that the challenged rule could be enacted by either the federal Parliament or a provincial legislature. i. If the two courses of action are cumulative, both rules may operate ii. Doctrine of Dominion Paramountcy  if not, both cannot be obeyed and the federal rule is to prevail. The suspension of the provincial law continues so long as there is a federal law inconsistent with it. Federal classes deemed the more important simply b/c they have a national as opposed to a sectional reference. 19

Constitutional CANS

Fall, 2012

Inevitably some overlap b/t federal and provincial powers but this is an approach that deals with circumstances where there is significant overlap. But the scenario is that when you look at the circumstances, you have 2 laws (this is a requirement of double aspect analysis). At end of analysis you will most likely conclude that both acts are valid but each legislature is dealing with the same subject matter but coming to it from a different perspective  when this happens, both laws should be able to operate concurrently. If not concurrently operating then you have federal paramountcy  When court considers that the federal and provincial features of the challenged rule are of roughly equal importance so that neither should be ignored, the decision is made that the challenged rule could be enacted by either the federal Parliament or a provincial legislature.  Example: Federal ‘regulation of trade and commerce’ with provincial ‘property and civil rights.’ These 2 overlap so each level of government’s application of what can be included in each section was restricted.

Ancillary Powers  Incidental effect: A law may have an impact on matters outside of the enacting legislature’s jurisdiction, so long as these effects remain incidental or secondary features of the legislation rather than its most important feature.  (Necessarily Incidental) - allows gov’t to intrude on other’s jurisdiction as long as important features of law remains within allotted jurisdiction. Used where the leg itself is valid (pith and substance), but a provision appears to intrude on another level of gov’t power. If it is related, or necessarily incidental, to the whole scheme, it is also valid.  “Necessarily Incidental” like pith and substance doctrine permits governments to intrude on the other level of government’s jurisdiction, so long as these effects remain secondary or incidental features of the legislation rather than its most important feature.  Ancillary Powers Doctrine – is used in cases where provision being challenged is a part of a larger scheme or legislation – when the impugned provision is examined in isolation, it appears to intrude into the jurisdiction of the other level of government. However, if the larger scheme is constitutionally valid, the impugned provision may be found to be valid because of its relationship to the larger scheme. This will depend on how well the offending provisions are integrated into the valid legislative scheme. If not closely related  provisions will be severed and invalid. If closely related  provisions are deemed necessarily incidental to the valid scheme and the law as a whole will be upheld o This permits governments to intrude on other levels of government’s jurisdiction, so long as the most important features of their laws remain within jurisdiction, (similarly to the pith and substance doctrine). Paramountcy Doctrine Doctrine of Paramountcy: in cases of conflict between federal and provincial laws, the federal law is paramount and the provincial law is inoperative to the extent of the conflict.  Provincial law’s operation suspended to the extent that it conflicts with federal legislation, but not rendered invalid  Only arises after the issues of validity and applicability have been determined. If a court has determined, through the process of characterization, that both the federal and provincial laws in issue are valid, and that both apply to the facts of the case, then a paramountcy issue may arise. The paramountcy issue will not arise if the court finds that one or the other of the laws is invalid or that the provincial law is inapplicable (using the doctrine of interjurisdictional immunity)  Key issue: whether a conflict exists between federal and provincial laws

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Constitutional CANS
o

Fall, 2012

Narrow reading: “express conflict” approach – allow both unless it is impossible for a subject to comply with both. Courts have tended, until recently, to favour this approach o Broad reading: “covering the field” approach – would hold a valid provincial law inoperative whenever it has an impact on a matter already regulated by a valid federal law. - Takes us back to double aspect doctrine (there is valid prov/fed legislation dealing with different aspects of an area), both can exist concurrently but 1. where there is a conflict (can a person comply with both pieces of leg) or 2. prov legislation frustrates Parliament’s legislative purpose, the prov law is going to be rendered inoperative (provincial law is not declared invalid, its operation is merely suspended to the extent that it conflicts with federal legislation). What if laws duplicate each other? –both can operate concurrently (duplication is permissible) Impossibility of compliance, or frustration of purpose Interjurisdictional Immunity Doctrine  Constitutes a departure from overlapping jurisdiction to a doctrine which emphasizes exclusivity of jurisdiction  It comes into play in situations where a provincial law is clearly valid in most of its applications, but in some of its applications it arguably overreaches, affecting a matter falling within federal jurisdiction.  This doctrine protects certain matters that fall within federal jurisdiction from the impact or interference of otherwise valid provincial laws  when this doctrine applies, provincial laws are not allowed to have even an incidental effect on matters falling within federal jurisdiction, and there is no double aspect to the matter.  Uses question of applicability instead of validity  Developed to deal with federally incorporated companies o “sterilization”/impairment test  a valid provincial law could apply to federal undertakings or federally incorporated companies so long as it did not impair their status or essential powers test created a larger area of immunity for federal undertakings  Provincial law is not found invalid, but inapplicable to the federal undertaking o When this doctrine is invoked, the courts will ‘read down’ provincial statutes to protect core of exclusive federal powers from encroachment.  This theory has been controversial  appears to extend to the federal gov’t an exclusivity of jurisdiction not available to the provinces. Two main reasons: o This theory is inconsistent with the basic pith and substance doctrine – that a law “in relation to” a provincial matter may validly “affect” a federal matter o The immunity of federal undertakings seem unnecessary, b/c federal Parliament can, if it chooses, easily protect undertakings within federal jurisdiction from the operation of provincial laws by enacting appropriate laws which will be paramount over conflicting provincial laws. Reading Down (language construed more narrowly.  A statute is to be interpreted as being within the power of the enacting legislative body.  In practice this means that general language in a statute which is literally apt to extend beyond the power of the enacting Parliament or Legislature will be construed more narrowly so as to keep it within the permissible scope of power.  Usually exclusively used with the doctrine of interjurisdictional immunity.

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Constitutional CANS
Class Notes: The next step  interjurisdictional immunity

Fall, 2012

Doctrine that never quite panned out Contradicts the pith and substance approach and the characterization approach Rather than facilitating the overlapping the federal/provincial powers, interjurisdictional immunity is more of an exclusive approach which has only been used to protect works, undertakings and persons that are subject to federal jurisdiction. Protection of those entities (works, undertaking and persona that are subject to federal jurisdiction) from application of provincial law. The law that is being attacked is essentially valid and what is being challenged is its application. Note 2 on p. 262 Recent Developments See Canadian Western Bank v Alberta POGG National Concern Doctrine: Viscount Simon: The true test must be found in the real subject matter of the legislation: if it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole, then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order and good governance of Canada… POGG- three areas: - gap powers (fills in gaps in federal and provincial legislation) - emergency powers (temporary, must show it is an emergency) national concern (area of national scope, cannot be dealt with effectively by the provinces) National Concern Doctrine 1. The national concern doctrine is distinct from the national emergency doctrine of the POGG power. 2. NCD applies to both new matters since Confederation and issues which have since then become a matter of national concern 3. to be considered a ‘national concern’ it must have a ‘singleness, distinctiveness, and indivisibility that clearly distinguishes it from matters of provincial concern’ and it must have a scale of impact on provincial matters that is reconcilable with the distribution of powers under the CA 1867 4. some consideration must be given to the effect on extra-provincial interests of a provincial failure to deal with or regulate the issue’s intra-provincial aspects (provincial inability test) Emergency Powers o Emergency powers will always apply in cases of:  War, insurrection  Prevention or apprehension of war  Pestilence, plague, contagious disease  Consequences of war o Parliament has the right to declare an emergency – they do not bear the burden to actually show that there is an emergency o However, the Courts the power to declare an emergency to have ceased if they are petitioned with compelling evidence o Legislation enacted under the Emergency Powers doctrine MUST be temporary o If a law enacted under the Emergency Powers doctrine conflicts with a provincial statue, then paramountcy applies 22

Constitutional CANS
 

Fall, 2012

The provincial statute is inoperable to the extent of the inconsistency between the two enactments If there is no true conflict, then concurrent powers applies

Economic Regulation • Trade and Commerce breakdown (double aspect) – Citizens v. Parsons • Federal Government – Interprovincial and international trade and commerce – general regulation of trade • Provincial Government - Intraprovincial trade and commerce – particular industry Provincial Powers  The extent to which the provinces are allowed to impose barriers to free flow of good, capital, services and labour b/t the provinces in ways that impair the functioning of the Canadian economic union  In each of the following cases, the province had established a scheme to regulate marketing of a product that, at some point, moved into interprovincial and international trade. - Provincial gov’ts has regulatory powers over particular types of trades within the province, as well as intra-provincial trade Note on Section 92(A) (CB 354) - deals only with non-renewable natural resources (oil, gas, potash) and specifically forestry and electrical resources - provincial legislatures have exclusive jurisdiction over o exploration o development, conservation and management - s.92A(2) gives provinces ability to make laws relating to export to other parts of Canada; jurisdiction over interprovincial exports, but NOT international exports. - If there is a conflict, paramountcy will work and Fed will prevail - Provinces can also tax (92A(4)) directly and indirectly: direct = paid by the person being assessed the tax; indirect = taxes passed on to the consumer - Primary production only – (under the 6th schedule) products that are in the form in which they are recovered or severed from their natural state; it can be refined but not to a completely manufactured product (under the schedule gives examples of non-manufactured v. manufactured products). Section 92A (CB p. 379) - Enacted to respond to insecurity about provincial jurisdiction over resources. - Ensures the provinces’ authorization to legislate for the export of resources to other provinces subject to Parliament’s paramount legislative power in the area, as well as permit indirect taxation in respect of resources so long as such taxes do not discriminate against other provinces. Federal Powers - Federal gov’t has power over extra-provincial (interprovincial and international), as well as the regulation of general trade and commerce Branch 1 –International & Inter-Provincial Trade At what point does trade & commerce become sufficiently inter-provincial so as to come within federal power? (A) Privy Council continuously chose to limit federal trade & commerce powers in favor of the provinces 23

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1) The fact that an industry (ex: insurance industry) spans the country is not sufficient to uphold federal legislation under the trade and commerce power. [Insurance Reference case - A.-G. Can. v. A.-G. Alta. 1916] 2) Section 91(2) does not, by itself, enable interference with particular trades in which Canadians would otherwise be free to engage in the provinces. (Basically same as above). [Re Board of Commerce, 1922] (B) After the abolition of appeals to the PC in 1949, there was a resurgence in the federal trade & commerce power. Particularly in the 1960s and 1970s, the courts appeared to accept that such federal legislation was a necessary and desirable part of economic nation-building. 1) If the main thrust or “aspect” of the legislation is valid federal regulation of marketing beyond provincial borders, intra-provincial regulation is valid as part of the overall scheme. [Caloil v. A.G. Can, 1971] 2) Inasmuch as a provincial law is designed to regulate interprovincial trade and would restrict the free flow of interprovincial trade, it is an invasion of exclusive federal authority over trade and commerce. [A.G. Man v. Manitoba Egg and Poultry Association, 1971] 3) If a provincial act regulates extra-provincial trade operations in their essential aspects (price and all other conditions of sale) then it is ultra vires the province. Direct regulation of interprovincial trade cannot be treated as an accessory of local trade. [Burns Foods Ltd. V. A.G. Manitoba, 1973] 4) A connection to a regulatory scheme administered by a federally-appointed agency is necessary to support a provision under the trade and commerce power. [MacDonald v. Vapour Canada Ltd., 1977] 5) If all of the province’s product in question is destined for export, legislation aimed at this product is aimed at the export market and controlling export prices and is therefore ultra vires the province. [CIGOL v. Government of Saskatchewan, 1979] [decision later reversed by constitutional amendment in 1982] 6) The trend continues of broadening the first branch of Parsons (international and inter-provincial trade) and giving more power to the federal government [Reference Re Agricultural Products Marketing Act, 1978]

General Regulation of Trade Branch 2 – General Regulation of Trade & Commerce The development of the 2nd branch has lagged far behind the 1rst branch. However, in recent years, the 2nd branch has assumed greater significance. 1) The test for application of the 2nd branch is whether the legislation deals with “a question of general interest throughout the Dominion”. *John Deere Plow Co. v. Wharton, 1915] – overly inclusive interpretation of the power 2) Privy Council rejected the trade and commerce power (without distinguishing between the two branches) as the basis for anti-combines legislation, holding that the T&C power had no independent content and could only be invoked as ancillary to other federal powers. [Board of Commerce, 1922] – overly restrictive interpretation of the power 3) Creation of a national trademark is within the 2nd branch. [A.G. Ont. v. A.G. Can, 1937] 4) To be upheld under the 2nd branch of the power, a federal act must fulfill the following conditions: a) The challenged provision must be part of a regulatory scheme administered by a federally appointed agency b) The enforcement of the scheme must be publicly monitored by a regulatory agency. c) The legislation must be concerned with trade as whole rather than with a particular industry [MacDonald v. Vapour Canada Ltd., 1977]

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5) The “trade and commerce head cannot be applied to the regulation of a single trade, even though it be on a national basis”. Nor do minute rules for regulating particular trades come within the 2nd branch. Unrestricted geographic play of an Act is not sufficient to find legislative authority under s. 91(2). Neither national ownership nor national advertising of a product alone will suffice to invoke use of federal commerce power. [Labatt Breweries of Canada Ltd. V. A.G. Can., 1980] Finally broke the pattern of broadening the trade & commerce power. 6) It is necessary to have a restrictive reading on the John Deere Plow test (otherwise would apply to every economic issue). Generally the following are indicia for a valid exercise of the 2nd branch: (not an exhaustive list, nor are any of the indicia necessarily decisive) From Vapour: a) Presence of a national regulatory scheme b) Oversight of a regulatory agency c) Concern with trade in general rather than an aspect of a particular business New to Canadian National Transportation: d) The provinces jointly or severally would be constitutionally incapable of passing such an enactment e) Failure to include one or more provinces or localities would jeopardize successful operation in other parts of the country. This case marked a turning point in the development of the 2nd branch of s. 91(2) that increased the federal government’s power. *A.G. Can. v. CNT Limited, 1983- Dickson J. gave concurring argument so this is dicta] 7) Continued to develop the 2nd branch of s.91(2). Followed the test of CNT. The impugned section is sufficiently related to a valid federal regulatory scheme. [General Motors of Canada Ltd. V. City National Leasing, 1989] Historical Summary - the "Haldane Period" (Privy Council) aimed at protecting provincial autonomy. - The "Dickson Period" (SCC) aimed at creating national economic unity is in sharp contrast to This has its origins in Citizen Insurance v. Parsons. If the general regulation of trade and commerce is to be applied, the traditional approach must be discarded, for the court must look beyond the stage at which the regulation is imposed. Instead, the inquiry must be directed to whether the federal measure regulates a national economic problem of interest to the whole country, even if it does so at the stage of production or retailing in a province. This approach requires the judge to make controversial and difficult decision about the importance of the national interest at stake and the impact of federal regulation on provincial autonomy in the economic sphere. The court is confronted with difficulties similar to those under the national dimensions test of the POGG clause since the judges must find some criteria of national interest which leave room for provincial regulation of economic problems, even when those problems are duplicated in more than one province. The old intra/interprovincial distinction allowed the Court to focus on whether the particular measure under attack dealt with interprovincial or intraprovincial trade, an inquiry that appeared more objective and fact based than the value-laden inquiry under the general regulation of trade test. - use this when leg does not involve trading goods, but when it seems to support national economy (consumer protection, etc.). Court must make difficult decision of deciding how a scheme is applied and whether it regulates a problem of national interest.

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Fall, 2012

Start with Parsons- general regulation of trade and commerce, somewhat applies to POGG, but make sure it doesn’t swallow property and civil rights!

Criminal Law Because of curbs put on federal exercise of general trade and commerce power, the feds have sometimes attempted to find a constitutional basis in the criminal law power for essentially regulatory purposes. The only limitation on criminal law power is the doctrine of colourability. The criminal law power must not be used as a disguised or "colourable" attempt to usurp an area of prov. jurisdiction. This is judged by reference to whether the purpose or object of the legislation discloses a genuine criminal law concern. In the Board of Commerce case, where the fed gov tried to put forward an argument that combines and hoarding, etc. had a criminal law element, Viscount Haldane put forward the notion that the categories of the criminal law were closed. In Egan, Duff J. said the opposite — the criminal law is an expanding field. In PATA - only test of a valid exercise in criminal law was whether there was a prohibition of conduct with penal consequences. Best statement on colourability is Rand's judgment in the Margarine case. A prohibition with penal consequences of manufacture and sale of margarine was held by the court to be an attempt to interfere with intra-provincial trade and commerce (protection of dairy farmers from competition from margarine) rather than a bona fide exercise of criminal law power. Rand emphasized that one must look at the supposed evil to which the legislation is directed. The issue is not whether particular conduct might appropriately be dealt with under the criminal law, but instead whether the criminal law form is being inappropriately used to pursue an ultra vires legislative purpose. (The nature of the prohibited conduct is, however, an important consideration in reaching a conclusion on the key issue). Provinces have power under s. 92(15) to impose punishment for enforcement of otherwise valid purpose. This is essentially ancillary to the other powers. However, the provinces do have a very large sphere for the prohibition of conduct with penal consequences, esp. under PCR. There is considerable overlapping and concurrent jurisdiction. ex. Bedard v. Dawson - suppression of nuisance for the protection of the enjoyment of property. CLASS:  Legislation must have three things to fit under 91 (27)  Criminal Law Purpose  Prohibition  Penalty  It is completely open to parliament to create new law as to what is criminal  Has no relation to morality  What kinds of criminal law have the courts seen as valid or bona fide:  Order  Peace,  Security  Health  If it was enacted for another purpose and it is not really criminal it is judged as being colorable s.91(27): The Criminal Law, procedure of criminal law

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s.92(14): The administration of justice in the province...including...Provincial courts, both of Civil and of Criminal jurisdiction, and including procedure in civil matters in those courts. s.92(15): The imposition of punishment by fine, penalty or imprisonment for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section. Because the courts have limited the federal trade and commerce power, the federal govt has sometimes tried to use criminal law power for essentially regulatory purposes Only limit on federal criminal law power is the doctrine of colourability. The criminal law power must not be used as a disguised or colourable attempt to usurp an area of provincial jurisdiction Therefore, Parliament can create new crimes, subject only to the doctrine of colourability Is the exercise of the criminal law power in a certain case a bona fide one? Test: Does the purpose of the legislation disclose a genuine criminal law concern? Where Parliament has jurisdiction with respect to a particular regulatory process it has ancillary powers to enforce its legislation by penal provisions. – It does not need to rely on criminal law power for such purpose. Criminal law power in Canada is essentially a concurrent one. Sections 92 (13), 92(14) and 92(15) give the provinces a large sphere for the prohibition of conduct with penal consequences. Limitations on provincial penal jurisdiction – prohibitions in the interests of public morality and prohibitions restricting fundamental freedoms (mostly freedom of speech) “Civil rights” *s.92(13)+ could be interpreted broadly to encompass freedom generally, but this would extend too far and give the provinces too much power.

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Federal Powers 1. Does law create a penal offence?  indicia of criminal law - PATA  non conclusive, other purposes for penal provisions - Margarine  Rule of Law => only obligated to obey laws which are fundamentally just 2. What is the purpose of the law (what evil social/economic) does it suppress or safeguard against) ?  Parliament sets crime not popular opinion - PATA, Margarine  Parliament can set both traditional and new areas of criminal law — PATA  indicia of criminal law (non-exhaustive): public peace, order, security, health, morality (Margarine) 3. What are the effects of the law on provincial powers?  if incidental, OK – Margarine  if colourable attempt to usurp provincial power, not OK - PA TA To be classified under s.91(27): (a) must set out a prohibition – some conduct that is prohibited [PATA] (b) must set out penal consequences for a violation of that prohibition [PATA] (c) there must be a valid criminal law purpose [Margarine] (i) Public peace (ii) Order (iii) Security (iv) Health (v) Morality (vi) Safety [Firearms]

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Provincial Powers Step 1 – Characterisation - P+S is “control and enjoyment” of property. Protect property values. It also safeguards neighbours from nuisance and the neighbourhood from harm. Step 2 – Classification - As a matter of civil rights that focuses on control and enjoyment of property, it belongs to property and civil rights [92(13)] - Is P+S also under criminal law [s.91(27)]? If yes, the exclusivity doctrine means the legislation is ultra vires the province. In other words, if found in both s.91 and s.92, it will be deemed to be in s.91 only and s.92 will not apply. - In this case, there is no encroachment on the federal government powers Tack-on Analysis - If this was a tack-on did it impair criminal power? No – actually helped it - Is it a tight or loose fit – tight fit To show that it was a valid exercise of provincial power: - falls under s.92(13) - 92(15) must be connected to a substantive power (ie not 92(15) or 92(14) on their own) Local interest in criminal matters: - s. 92(14)- prov legislatures have jurisdiction over administration of justice and policing. - In some cases the federal government has used conditional legislation to draft criminal laws in a way that allows them to be shaped by provinces to respond to local conditions- Sunady Observance Laws, Provincial Lotteries. - s.92(15)- provinces may use ancillary power to enact penal sanctions to enforce regulatory schemes that anchored in s. 92 classes of powers (think of Sage Grouse penalties) 3. Note. Provincial Regulatory "Crimes" – CB 683 - The boundary between prohibitions in pursuit of provincial regulatory objectives and those in pursuit of criminal law is difficult. The principle that delineates this boundary is as follows: where provincial prohibitory legislation exhibits a sufficient connection to provincial regulatory powers, such legislation will not offend the federal criminal law power. However, where the connection is tenuous or absent, provincial prohibitions are ultra vires. - Factors that indicate a sufficient connection in order to support provincial prohibitions: 1) The prohibition enforces standards created as part of a comprehensive provincial regulatory scheme. The standards must be reasonably related to a provincial regulatory purpose and should not be moral objectives in and of themselves. 2) The provincial legislation must relate in P+S to provincial legislative powers (such as highway control) and the prohibition is simply a means of enforcement of that objective. 3) The prohibition should be an enforcement mechanism that aids a scheme aimed at regulatory control of property, such as zoning, rather than a prohibition of offensive conduct which happens to occur on provincial property. The offences created must be confined to those that are reasonably necessary for the purpose. 4) A concurrent jurisdiction may exist temporarily where some compelling, temporary local circumstance or emergency requires stem control at the local level. The following factors indicate the absence of a sufficient connection between a prohibition and a provincial regulatory power: 1) The prohibition is an end in itself, the purpose of which is to enforce compliance with the legislature's view of morality. 28

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2) The prohibition is directed to standards of public order or safety through the criminalizing of behavior perceived as a public wrong. The prohibition aims at the maintenance of public order, as contrasted with protecting the safety or rights of individuals from the consequences of harmful conduct. 3) The prohibition becomes suspect when it intrudes into an area traditionally associated with federal criminal jurisdiction. Provincial legislation which interferes with fundamental human rights requires extraordinary justification in local circumstance in order to be upheld as a concurrent exercise of provincial regulatory power.

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Tests
TEST FOR EMERGENCY POGG (Anti-Inflation Act)  Criteria  Temporary – for so long as the emergency exists  Rational basis that there is (or might be) a national emergency  Court doesn’t want to second guess government’s decisions, but needs some evidence to support their reasoning for enacting the law  (Optional) Anchorage in another federal head of power  (Optional) Declaration of emergency  AIA used “serious national concern”  Anti-Inflation Act enacted under the emergency doctrine  Other examples: war, international emergencies, public welfare (disease, accident, fire, flood)  Usually a lot of provincial intrusion (and that is valid)  Crisis doesn’t need to be ongoing or current. It can be actual or apprehended  Now there is “Emergency Legislation” to also consider POGG National Concern Test Test 1 - SDI – singleness, distinctiveness, indivisibility Test 2 - Scale of intrusion on provision power (‘provincial inability’ to justify intrusion) - Conclusions on what is firmly established by National Concern Doctrine of POGG power (1) The NCD is separate and distinct from the NED (National Emergency Doctrine) of the POGG power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature – this is PERMANENT (2) The NCD applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern (3) For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness, and indivisibility that distinguishes it from a matter of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution - Consider provincial ability / inability to support this analysis TEST FOR WHETHER SOMETHING IS CRIMINAL LEGISLATION (REFERENCE RE: DAIRY INDUSTRY ACT) 1. There must be prohibition of certain activity; 2. The prohibition must be accompanied by a penalty for breach, and 3. The law must be enacted from a “criminal…public purpose”. A criminal law must be directed to suppress to an evil, injurious, or undesirable effect upon the public. This includes the following 5 areas of concern: 1. protection of public peace 2. order 3. security 4. health, and 5. morality (including socially undesirable conduct, a more secular approach) 6. Protection of the environment (added in the Hydro Quebec case) The ordinary but not exclusive list. TEST FOR GENERAL TRADE  General regulation of trade in matters affecting the dominion  Deals with Trade as a whole 30

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5 criteria set by GM and applied in Kirkbi v. Ritvik  Legislation is part of a general regulatory scheme: GM v. CNL  Legislation identifies, defines required / prohibited conduct  Legislation creates investigatory procedures  Legislation establishes remedial/punitive mechanisms  Scheme is monitored / overseen by a regulatory agency  Legislation is concerned with trade as a whole not a particular industry: Labatt; Canadian National Transport, Citizens v. Parsons  Legislation is of a nature that provinces are constitutional incapable of enacting it, jointly or severally  Failure to include one or more provinces in legislation would jeopardize the successful operation of the scheme in other parts of the country * Last 2 criteria seem very similar to criteria to find legislation valid under National Concern *Kirkbi v. Ritvik: criteria speaks to entire subject matter legislation is trying to regulate. Test for fed leg under general regulation of T&C 1. Impugned provision must be part of a - explanation of prohibited conduct, creation of regulatory scheme investigatory mechanism, establishment of remedial mechanism. 2. Scheme must be administered by Operated under regulatory agency. oversight of regulatory agency 3. Leg must be concerned with trade as a harmful effects of anti-competitive practices, whole, not a particular industry affect competitive economy in the nation as a whole 4. Leg should be of a nature that the Dickson instead considered what would happen provinces jointly or severally would be if restricted fed leg to anti-competitive practices incapable of enacting in interprovincial trade- would it render leg unenforceable? Can parliament address the 5. The failure to include one or more of the national economic problems? Yes, not having provinces in a scheme would jeopardize federal gov’t enact leg would render the successful operation of the scheme in scheme ineffective. other parts of the country. SECTION 92(13) INTRA-PROVINCIAL TRADE; REGULATION OF PARTICULAR INDUSTIRES WITHIN PROVINCE  Is the law aimed at intra-provincial trade? Incidental effects on extra-provincial trade will be considered valid: Carnation  Is the law dealing with production (intra vires) or marketing (ultra vires)?: Manitoba Egg  Is the law protectionist of a particular province’s industry (ultra vires)? Manitoba Egg Regardless of protectionism, legislation aimed at regulating extra-provincial entities or items will be ultra vires: Burns Food v AG Manitoba  Does the provincial scheme mirror the federal scheme (intra vires under the double-aspect doctrine)? Re: Agricultural Products Marketing Act S. 92(7): THE ESTABLISHMENT, MAINTENANCE, AND MANGEMENT OF PUBLIC AND REFORMATORY PRISONS IN AND FOR THE PROVINCE Intra Vires  Morgentaler: The running of hospitals  Morgentaler: Medical profession and the practice of medicine 31

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S. 92(13): PROPERTY AND CIVIL RIGHTS Regulation of a particular industry or trade in the province Intra Vires  Parsons: Regulation of any particular business or trade  Rothman’s: Tobacco advertising  Parsons: Intra-provincial trade and commerce  Parsons: Contracts of a particular business or trade  GM v. CNL: Ability to create civil actions  Multiple Access: Regulate securities within province  Bell Canada: Labour relations and working conditions (except for Federal undertakings)  Ross; Rothman’s: Limitation of civil rights  Ross: licensing of motor vehicles and safety of roads and highways.  Crown Zellerbach: The environment (double aspect)  Carnation: Purchase price of produced and sold in province  Agricultural Products Marketing Act: regulation of egg production and quotas (mirror Feds) Ultra Vires  Manitoba Egg, Burns Foods: control of imports and/or price discrimination S. 92(15): OFFENCES & PENALTIES Intra Vires  Ross: Licensing for motor vehicles Ultra Vires  Westendrop; Morgentaller: directly at a criminal purpose/evil (prostitution or abortion) S. 92(16): GENERALLY ALL MATTERS OF A MERELY LOCAL OR PRIVATE NATURE IN THE PROVINCE – needs to be anchored in another head of power Intra Vires  Bell #2; Morgentaler: Health  McNeil: Morality/ local moral order S. 91(27) Form – prohibition and penalty: PATA Criminal purpose (not exhaustive): Margarine Reference  Public peace, order, security, health, morality  Environment: Hydro Quebec; Vulnerable groups(?): Malmo-Levine  Issues that have a national dimension; prohibit some evil Exceptions and indirect prohibitions are permissive: RJR-MacDonald  The dissent argues that broad exceptions undermine the efficacy of the law and courts may find that it can’t be “truly criminal” if there are too many exceptions  Indirectly prohibiting an evil is valid (tobacco = dangerous good)  Suggests it is a political move or looks at the overall aftermath of a full ban on a substance Best argument against S. 91(27) – law is regulatory in nature and lacks criminal law purpose Regulatory schemes could be valid: Hydro-Quebec, re: Firearms  If regulatory aspects are secondary to the primary purpose of criminal law  BUT there’s always difference of opinion  Dissent in Hydro-Quebec: procedures leave too much room for discretion, lack of fair notice. The more elaborate the scheme, the more likely it’s regulatory 32

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Re: Assisted Human Reproduction Act (SCC not ruled yet): Court of appeal rendered it invalid because it lacked a criminal evil and was seen to be aimed at regulation of health Regulatory schemes are valid if they are regulating an “evil” or criminal purpose To argue regulatory schemes are ultra vires, use dissent in Hydro and Human Reproduction. S. 92(16) Morality: McNeil  Although usually seen as criminal, can be regulated at a local level under S. 92(16) because morality might differ from region to region  As long as the aim is not at morality and morality is just incidental, the legislation will be valid  Westendrop was aimed at the moral evil of prostitution  invalid The object of the regulation/Act needs to be anchored to a provincial head of power. TEST FOR PROVINCIAL “CRIMINAL LAW” POWER 1. Are there penalties directly aimed at the activity in question? (ultra vires) - Westendrop 2. Are there penalties indirectly aimed at the activity in question? (intra vires) - McNeiil 3. Is the purpose of the law punitive? (ultra vires) 4. Is the purpose of the law preventative? (intra vires) 5. Does the law specifically target behaviour recognized as criminal (civil remedies are allowed).

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Charts
Case Reference re: Secession Issues Can Que unilaterally secede? Can fed. gvt unilaterally change payment formula under CAP? Famous 5; can female persons be senators Exclusivity and Intra prov Trade and Commerce Exclusivity / General Trade and Commerce Double Aspect Ratio No; democratic principle is trumped by other constitutional principles – federalism, protection of minorities, scope of democracy Yes, in accordance w/principle of parliamentary sovereignty and s.42(1) of Interpretation Act. SCC – no; PC – yes ‘persons’ should be taken to include both male and female unless noted otherwise Province can regulate trade and commerce if it’s intraprovincial Ancillary/tack on test; 2 part test depending on encroachment; min – functional relation, maj – necessary or integral Provincial Law duplicated federal one, there is no true conflict so they can both operate concurrently. (narrow test of conflict (need actual conflict in operation to trigger paramountcy) A criminal law masquerading as a medical/hospital regulation; act u.v. prov. Legislature. (allowed Hansard into decision) Sign act u.v. municipality; general words can’t be used to do indirectly what isn’t allowable/accomplishable directly (federal jurisdiction over federal elections)

Reference re: Canada Assistance plan Reference re: ‘Persons’ Edwards v. A.G. Canada Parsons v. Citizens (stat condition on ins.) GM v City National Leasing (Combines Act) Multiple Access v McCutcheon (insider trading) R. v. Morgentaler (abortion in N.S.) McKay v the Queen (election signs)

Pith and Sunstance (colourability) IJI (general words to be read as applicable to subject matter; construction that allows legislation to be valid preferred) Double Aspect (no paramountcy) IJI (given limited scope by court)

Ross v Regulation of Motor Vehicles (d.l. suspension) Canadian Western Bank v. Alberta (bank selling credit ins.) Rothmans, Benson and Hedges v Saskatchewan (preventing kids smoking) Re Anti Inflation Act (severe inflation in early 70’s) R v Crown Zellerbach (dumping in BC, flowing into federal saltwaters)

If the acts do not conflict with one another and one can comply with both then they are both valid Bank not protected from federal leg. By IJI Order of application of doctrines: 1) P&S analysis 2) federal paramountcy 3) IJI only if already in precedent Compliance w/ both laws re: display of tobacco possible; prov. law stricter but that doesn’t mean federal purpose frustrated. (tests used: impossibility of dual compliance, frustration of federal purpose) Inflation is an emergency, not a national concern because that would be permanent. Parliament must show a rational basis for calling an emergency. Can consider extrinsic evidence, clarity re: emergency req’d, must be temp. as intrudes on prov. powers 4 step test 1) nat. concern distinct from nat. emerg 2) new matter or newly national matter 3) SDI (single distinctive, and indivisible) 4) effect on extraprovincial interests of a prov. failure to deal w/matter

Double Aspect

Emergency Power/ National Concern

National Concern

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Constitutional CANS
Friends of the Oldman River v. Canada (dam on river, federal environmental regulation) Carnation Co v Que Agricultural Mk Bd (milk price setting in Que) AG Man v Man Egg and Poultry Ass. (based on Ont/Que chicken & egg problem) Caloil Inc v AG Can (legislation protecting western oil producers) Dominion Stores (bruised apples sold as ‘Canada Extra Fancy) The Queen v. Klassen (private sale of grain) P&S analysis POGG & environment (AB claimed IJI, might succeed today in light of CWB) Intra Prov Trade (P&S analysis) Intra Prov Trade

Fall, 2012
Local projects fall w/in prov. responsibility but will need federal participation if impinges on federal jurisdiction; this was intra vires the federal gvt under the navigable waters power. Aim of act was to regulate production/pricing intraprovincially; it incidentally affected inter-prov trade. intra vires Aim of act was to regulate inter provincial trade so it was ultra vires the Manitoba gvt; this was based on P&S analysis and the effects on products coming into the province. Aim was to regulate International and Inter provincial Trade but incidentally affected intra prov Trade; intra vires Legislation ultra vires federal gvt; extra overlapping regs wasteful and defeat idea of constitution (some fed powers, some prov) ancillary powers not applicable as impugned provision was voluntary Application of necessarily incidental doctrine allows federal intrusion in to prov. powers; underlying values of fairness and equality for all and the international scope of the regulation. Act did not deal with General Trade and Commerce but Intra Provincial Trade and commerce 5 hallmarks of validity under s.91(2) 1) part of general regulatory scheme 2) oversight by regulatory body 3) concerned w/trade as a whole not a particular industry 4) out of scope of prov. power 5) failure on part of 1+ provinces would jeopardize success of whole SCC says aimed at single national consumer protection issue therefore intra vires Parliament

Extra Prov Trade

Trade and commerce/ Fed. Standards over agricultural products Federal power over an intra-provincial commercial transaction General Trade and Commerce Trade and Commerce

Labatt Breweries v AG Canada GM v City National Leasing (Combines Act)

AG Canada v. Canadian National Transport PATA v AG Canada (Combines Act challenged) Margarine reference

Federal trade and commerce Criminal Power (sets up form test)

RJR-MacDonald v. Canada (tobacco companies contest advertising rules/health warnings) R. Hydro-Quebec (H-Q charged w/PCB emissions under CEPA) Re Firearms (Alta challenges Firearms Act)

Says to fall within Criminal Law must prohibit an Act and attach penal consequences; criminal law given a wide interpretation Criminal Power Adds third prong Criminal Law Power must have a (sets up purpose test) valid criminal intent ex. Peace, order, health, security and morality Criminal Power Court found legislation intra vires but central (scope narrowed from provisions of no force and effect as contrary to PATA) Charter; regulatory features sometimes taken to count against something being a criminal provision (wrong form) but can be overcome by strong purpose Criminal/environmental CEPA intra vires Parliament; scope of criminal law power restricted by 1) Charter 2) can’t be used colourably Criminal Power Licensing passes Margarine test and Registration necessary to the function of the act. Prov would need a regulatory scheme in order to use 92(15); Act 35

Constitutional CANS
in P&S directed a public safety Westendorp v R (City of Calgary by-law against prostitution) Re Nova Scotia Censors (licencing/showing movies) Criminal Power/ Colourability Provincial criminal power

Fall, 2012

In order to use criminal law powers of the province it must be enforcing a regulatory scheme Prov. penalties ok if related to infractions of rules based in subject matter found in s.92

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Case Briefs
Reference re Secession of Quebec, [1998] 2 S.C.R. 217
FACTS: After referendum, question of whether or not Quebec could unilaterally separate from Canada. ISSUES: 1. Question posed by Parliament: Under the Constitution of Canada, can the National Assembly, legislature, or government of Quebec effect the secession of Quebec from Canada unilaterally? 2. Does int’l law give Quebec this right? 3. In the event of conflict b/w domestic and int’l law on this subject, which takes precedence? HOLDING: Quebec does NOT have the right to unilaterally separate from Confederation. Answered no to 1 and 2; stated that they did not have to answer #3. REASONING: SC rationalized that Canada was traditionally organized by 4 foundational constitutional principles: 1. federalism 2. democracy 3. constitutionalism (adhere to an organizing structure for our society) and rule of law 4. respect for minorities SC had to answer the threshold question of jurisdiction first – are these questions justiciability – is there a matter here for the court to decide. The SC replied that they did have justiciability: “…that the questions posed in the Reference do not ask the Court to usurp any democratic decision that the people of QC may be called upon to make. (p26)” 21. ‘sovereign will’ exists within a legal framework of rule of law – can’t have sovereign will at the expense of other constitutional values. 23. Constitution is entrenched beyond that of simple majority rule for three reasons: 1. Majority will be tempted to ignore fundamental ri8ghts in order to accomplish collective goals – constitutional entrenchment ensures gives those rights appropriate regard and protection. 2. Endows vulnerable minority groups with institutions and rights to maintain and promote identities against pressures of majority. 3. Constitution provides for division of political power amongst levels of gov’t. That purpose would be defeated if one of those democratically elected levels could usurp the powers of the other simply by exercising its legislative power to allocate additional political power to itself unilaterally. SC appointed an amicus curiae – ‘a friend of the court’ – to represent QC’s point of view. Often used when someone is unable to represent themselves (children, for example). He argued that a. Was a political question, and that the SC did not have jurisdiction to answer the question, ‘hence incapable of legal resolution. b. Argue in the alternative – the additional argument was that majority rule/sovereign will allowed for this, and that this argument for democracy was actually already inherent within the Constitution. *Consider the ‘living tree’ analogy regarding Canada and its Constitution. Rule of law (as defined in para 77) 1. One law for all. 2. Rule of law requires creation and maintenance of positive laws which preserves and embodies a more general principle of normative order. 3. Exercise of all public power must find its ultimate source in a legal rule – law and gov’t power must flow from legal rules, and not be arbitrary. Applauded by even some sovereigntists because it acknowledged that a clear expression of the people of Quebec of their will to secede would impose a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire. Led to Clarity Act, which provided baseline for which the federal gov’t would enter into constitutional negotiation post-referendum. RATIO: Supremacy of the Constitution, lays out history and principles of the Constitution, etc.

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British Columbia v. Imperial Tobacco, [2005] 2 S.C.R. 473
FACTS: Tobacco sued BC under statute that it passed saying that the legislation was unconstitutional ISSUES: 1. Did it violate judicial independence? 2. Did it violate the rule of law? 3. Does BC have the jurisdiction to create that legislation HOLDING: 1. No. 2. No. 3. Yes REASONING: 1. It is not up the court to second guess the wisdom of legislation. 2. Rule of law to fair trial not applicable to tobacco because they were not “charted with an offence.” Tobacco overlooked other constitutional principles: democracy and constitutionalism. 3. Not included in case book. RATIO: Case defines principles of judicial independence and role in the constitutional structure; they are 1 of 3 branches and their role is to settle disputes. Courts will not second guess the wisdom of legislation. Limits of unwritten principles of constitution and how far they can go. Facts: BC gov’t passed Tobacco Damages and Health Care Cost Recovery Act- allows gov’t to sue tobacco manuf for not compensating added costs to health care from tobacco related illnesses. Tobacco companies claim this Act is constitutionally invalid. Issues: 1. Is the Act ultra vires the province? 2. Is the Act constitutionally invalid as inconsistent with judicial independence? 3. Is the Act constitutionally invalid for violating rule of law? Held: SCC found Act was constitutionally valid. Reasoning: Companies said Act made it easier for gov’t to sue and gave rules of civil proceduredidn’t get far, more needed to support argument. 2. Claimed rule of law violated by creating an unfair trial and providing retrosp & retroactive leg, but none of these are protected- appel broaden rights in the Charter. Ex/ only those who comit offence get a fair trial- would make charter redundant.

British Columbia (A.G.) v. Christie, [2007] 1 S.C.R. 873
FACTS: Act imposed a 7% tax on legal service fees, supposedly to fund legal aid in BC. Christie claimed that it would limit people’s access to justice ISSUES: Is the 7% tax a violation of constitutional rights? HOLDING: Tax was constitutional REASONING: 1. Flood gate reasoning: other taxes may also be challenged. Have to be careful not to go too far with rule of law and can’t override actual text. 3. Historical reading of the rule of law: right to counsel is usually limited to the criminal context. Access to justice doesn’t mean access to a lawyer, just access to the legal system. RATIO: The rule of law can’t be interpreted more broadly than the Constitution. If a statute does not contravene the Constitution, one can attempt to make a principles argument, but principles cannot be interpreted more broadly than the Constitution.

Provincial Judges Reference, [1997] 3 S.C.R. 3
SCC addressed the independence of provincial court judges within the context of their financial security: salary reduction for judges. The case was appealed and put in front of provincial court judges affected by similar legislation.  Section 11(d) of the Charter says that they need a fair trial by and independent and impartial tribunal  There existed a “gap” in the Constitution regarding explicit judicial independence with respect to provincial court judges dealing with civil matters.  Preamble of the constitution act of 1867 o Judicial independence is not only guaranteed through the constitution acts, but that it’s also an unwritten principal, supported by the SCC

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o

There are gaps in the written constitution for provincial courts – provisions of section 11(d) of the charter and the CA 1867 do not take provincial courts into account  So provincial judicial independence is an unwritten constitutional principle  11(d) is a provision which protects the independence of the provincial court judges only when those courts exercise jurisdiction in relation to offences.  It is said that judicial independence has evolved much the same way that our understanding of rights and freedoms had. Issues of financial security arose relative to judicial independence – if the salaries of judges are controlled by the executive branch, then how can it be free from influence – so now judges salaries are fixed (parliament)

Section 96-100 talks about the appointment process of judges, designing judicial independence o 97-98 – judges need to have a certain degree of expertise related to the place in which they are sitting (to coincide with common law and civil law traditions)  “to be appointed among members of the bar of the province to whose courts they are appointed…” o 99 – judges will hold office with good behaviour but are removable by the governor general on address of the Senate and House of Commons  (2) – judges are to be relieved at the age of 75 (tenure) o 100 – salaries of judges are fixed and provided by parliament

What was the hurdle judges faced in making their judicial independence (at provincial level) Jurisprudence was for superior court judges, therefore these provincial judges were not appointed under section 96 of the CA Their argument was: they looked to the preamble of the CA 1867 and the Charter. They looked back in the constitutional history going back to England and how that was incorporated into Canadian Constitution. Addressed independence of prov judges within the context of financial security. SCC- judicial independence is at root an unwritten constitutional principle under Const Act and the Charter, and const contains provisions aimed at protection of judicial independence. Unwritten, read const as a whole, reaffirmed by the preamble. 3 aspects of judicial independence: financial security, security of tenure, and institutional independence. -Supreme Court of Canada addressed the independence of provincial court judges within the context of their financial security (each of the provinces of PEI, Alberta and Manitoba had in some way imposed a salary reduction on provincial court judges). -Supreme Court Judge (Lamer CJC speaking for majority of Court) considered the impact of the fundamental constitutional principle of judicial independence in light of ‘gap’ in the constitution left by the absence of explicit guarantee of judicial independence with respect to provincial court judges dealing with civil matters -section 96-100 do not apply to provincially appointed inferior courts, otherwise known as provincial courts -Lamer CJC concluded that through judicial interpretation the provision in achieving the objective of judicial independence has served to protect the judicial role. -Judge says that the historical origins of the protection of judicial independence can be traced to the Act of Settlement of 1701. The act was the ‘historical inspiration’ for the judicature 39

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provisions of Constitution Act of 1867. While the Act only extended to protection of English superior courts, like our Constitution evolving over time and our rights and freedoms growing in Constitution Act of 1982, judicial independence has also grown into a principle that now extends to all courts, not just the superior courts. Conclusion: Judicial independence is an unwritten norm, recognized and affirmed by the preamble to the Constitution Act, 1867. With respect to content of the principle of judicial independence, three aspects were identified: 1. Financial security 2. Security of tenure 3. Institutional independence The decision established requirement that governments establish independent commissions to make recommendations on a periodic basis to appropriate level of remuneration for the judiciary. Governments not required to accept recommendations, but a departure of recommendations requires a legitimate reason. Judicial salary reduction was found to be unconstitutional because they had not been preceded by a report of judicial compensation commission. Facts: As part of its budget deficit reduction plan, PEI enacted the Public Sector Pay Reduction Act and reduced the salaries of Provincial Court Judges and others paid from the public purse in the province. Following the pay reduction, numerous accused challenged the constitutionality of their proceedings in the Provincial Court, alleging that as a result of the salary reductions, the court had lost its status as an independent and impartial tribunal under s.11(d) of the Charter. Similar challenges occurred in Alberta, and in Manitoba the judges themselves challenged their salary cuts. Issues: Do the salary cuts of Provincial Court Judges, as part of a plan of salary cuts from all public sector employees, interfere with the principle of judicial independence? NO Reasoning: (Chief Justice Lamer) Salary reductions which are “non-discriminatory” are not unconstitutional - any tampering with salary of judges is ok as long as you’re not singling out specific judges (Beauregard precedent) - Financial security as part of judicial independence is to benefit the public – maintenance of public confidence in the impartiality of the judiciary Ratio: After an analysis of constitutional law, the Court established 5 principles: 1) Governments may reduce, increase, or freeze the salaries of provincial court judges, either as part of an overall economic measure aimed at persons remunerated from public funds, or aimed at provincial court judges only 2) Provinces must establish independent, effective, and objective commissions which must review proposed changes to judicial remuneration in advance 3) These commissions must consider the adequacy of judges’ salaries in light of the cost of living and other relevant factors regularly (ie every 3-5 years) 4) The commission recommendations are non-binding, but government must justify decisions to depart from those recommendations according to a standard of simple rationality, if need be, in a court of law 5) The judiciary may never negotiate with the executive or the legislature over remuneration. However, the judiciary may express concerns or make representations to governments regarding judicial remuneration.

Ref re Meaning of the word “Persons” in S. 24 of the BNA Act, 1867, [1928]
FACTS: Reference case to SCC, reference initiated by 5 women petitioning government 40

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ISSUES: Whether the term (qualified) “persons” in S. 24 of Constitution includes women? SSC – qualified person. Privy - persons HOLDING: Privy Council said yes, persons includes women REASONING: SCC • Common Law: common law identified why women were disadvantaged • Historical: What did the framers in 1867 intend to mean by “qualified persons” PRIVY (progressive approach) • Contextual: S. 41, “males”, if meant to exclude females, could have just written person; S. 133, “English and French may be used by any person”, must have meant females included • Historical: Customs remain unchallenged long after the reason for them has disappeared. The appeal to history is therefore inconclusive. • Ethical: Interpret with what would Canada do, not what would Roman law do. Canada is its own country with its own identity. Living Tree: like all written constitutions, it has been subject to development through usage and convention. The BNA planted in Canada is a living tree capable of growth and expansion within its natural limits. RATIO: Judges will interpret the law using a variety of methods, and will often interpret to achieve a desired result. Facts: S. 24 of BNA Act- qualified persons are eligible to be appointed to senate Issue: Are women “qualified persons”? Const. interpretation of words in Act. Reasoning: looked at constitution itself, what was intended? SCC took historical/textual approach and said given the time period, women were not meant to included. Pricy Council- constitution should be a ‘living tree’ and reflect values today, not what was intended in the past- must reflect changing views in society. Reference Procedure- court gives advisory opinion. Prov leg (provincial appeal court), Federal Cabinet (SCC). Private parties bear the costs of litigating const issues. Technically, reference is not given same precedential weight as other decisions, but are considered as authoritative.

Edwards v. A.G. Canada, [1930] A.C. 123
FACTS: Argument framed differently this time. Appealed to JCPC ISSUES: p. 49: “The question at issue in this appeal is whether the words “qualified persons” in that section include a woman, and consequently whether women are eligible to be summoned to and become members of the Senate of Canada. HOLDING: REASONING: used living tree analogy – regardless of what drafters intended, Constitution has changed over time – nothing in those sections precludes women being appointed from the Senate, plus there is nothing saying women are not considered ‘qualified’. p. 51: “…their Lordships do not think it right to apply rigidly to Canada of to-day decisions and the reasons therefore which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development.” AND: a series of contradistinctions, on p. 53, where males were defined as distinct from persons Sect 23 lists all the qualities for a senator – being a man isn’t one of them, therefore no preclusion to women being in the Senate. R Elliot, “References, Structural Argumentation, and the Organizing Principles of Canada’s Constitution”: Note structural argumentation: 1) Historical – intent of drafters 2) Textual – consideration of the present sense of the words 41

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3) Doctrinal approach – traditional legal approach – argues form previously decided cases looks to language of Constitution – is predominant type 4) Prudential – argument about costs and benefits/practical argument – uses probability test – does society lose more than it gains? 5) Ethical – appeal to an ethos of the nation. 6) Structural – inferences from the existence of constitutional structures and the relationships which the Constitution says ??p. 42. *Remember “special prejudice” test required to get before the SCC (law affects someone differently from the impact on the public at large).  In coming to a determination as to the meaning of a particular word in a particular Act it is permissible to consider 2 points 1. The external evidence derived from extraneous circumstances such as previous legislation and decided cases  Section 4 provided that in all acts words importing the masculine gender shall be deemed and taken to include female unless the contrary as to gender is expressly provided  Appeal to history – the word “persons” is ambiguous, so if you were to look in the past the word “persons” could have been construed to mean male because females were incapable of serving a public office  This appeal is not of great weight – appeals to history are extremely slight.

2. The internal evidence derived from the Act itself  “The act should be on all occasions interpreted in a large, liberal and comprehensive sprit, considering the magnitude of the subjects with which it purports to deal in very few words”  The court looked at the act in its entirety, citing different references in the Act that support the argument that the word “persons” includes women  Ie. S. 41 (qualifications of persons to be elected to the Legislative Assembly)  Ie. S. 133 (Both languages may be used by any person in pleadings to any court – person includes women) In Conclusion: 1) Must have regard to the object of the Act 2) The word person is ambiguous and may include women 3) There are sections in the Act that show that in some cases the word “person” must include females 4) In some cases the words “male persons” are expressly used 5) The word “persons” includes members of both sexes so women are eligible to be summoned to and become members of the Senate of Canada.

Citizens Ins. Co. v. Parsons, (1881), 7 A.C. 96
FACTS: Parsons claimed that fire insurance policy sold to him by Citizens Insurance did not comply with the Ontario Fire Insurance Policy Act. Citizen argued that the Act was ultra vires the province because it encroaches on S. 91(2) Trade and Commerce. ISSUES: Whether the Fire Insurance Policy Act was validly enacted HOLDINGS: Legislation is a valid REASONING: CHARACTERIZATION • Characterized as dealing with insurance contract. 42

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• S. 92(13) Property and Civil rights • S. 91(2) Trade and Commerce, but when read act as whole (S. 94), it doesn’t make sense. When looked at trade meaning in international legislation, Act of Union between England and Scotland trade and commerce refers to international or interprovincial trade (obiter) RATIO: First step in division of powers question is to characterize and classify. S. 92(13) includes right to govern contracts such as fire insurance. S. 91(2) involved international or interprovincial trade and commerce.

R. v. Morgentaler, [1993] 3 S.C.R. 463
FACTS: S. 251 CC struck down (abortions). Δ stated intention of performing abortions in a clinic. Nova Scotia government passed “March Regulations” which prohibited abortions anywhere other than hospital and denied medical coverage if it was. Δ did 14 abortions in his clinic anyways. Nova Scotia passed Medical Services Act which restricted certain procedures to be performed outside of hospital “to prevent a two-tier/privatization of medical care and to reduced costs and quality of care.” (stated purpose) RELEVANT SECTIONS: S. 92(7) Hospitals; S. 92(13) Property and Civil Rights; 92(16) General matters of local or private nature; S 91(27) Criminal Law. ISSUES: Whether the Medical Services Act and its regulations were validly enacted. HOLDING: Invalid, constitutional violation of women’s rights REASONING: • Used lots of evidence: facts leading up to bill, Hansard, text of legislation CHARACTERIZATION • Aimed at public harm on evil of abortion clinic and suppress or punish • Stated that it was aimed at delivery and quality of medical service, but no evidence CLASSIFICATION • 92(7): No evidence procedures done outside of hospital are performed with a lower standard of care OR that this would be cost effective • 92(13): Scope is the development of professionals, regulations regarding professional conduct, certification. • 92(16): Jurisdiction over health, but no evidence that procedures done in clinics were subpar • 91(27): penal consequences look like criminal law • Conclusion: looks like the CC provision that was struck down RATIO: If the true intended purpose of an Act does not fall within the head of power of the drafting legislature, then the statute may be struck down as unconstitutional. INCIDENTAL EFFECTS: Provincial and Federal laws. Courts should not be concerned with incidental effects, just the dominant features of the legislation

Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161
FACTS: Ontario Securities Act and Canadian Corporations Act had almost identical provisions. Multiple Access is a federally incorporated company charged with insider trading under Ontario law. Federal limitation had expired. Insider Traders (McCutcheon) argued that Ontario Securities Act is ultra vires and the regulation of trading shares was under federal jurisdiction ISSUES: Whether the Securities Act was validly enacted and whether is allows for dual-compliance and not frustrate the purpose of the Corporations Act (Canada)? HOLDING: Valid. No conflict. Both can operate simultaneously. REASONING: CHARACTERIZATION • CCA: regulates federally incorporated bodies; creates a national standard • OSA: deals with securities trade within province; supplement on a different aspect of issue CLASSIFICATION

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• Insider trading can be POGG or S. 92(13). The characteristics of the laws are of equal importance because they cover different parts of the protection spectrum. RATIO: If legislation at both levels is valid and is of equal importance, then the court may find them both applicable. Overlap is permissible so long as there is no conflict. Facts:  The appellant, Multiple Access, was a federally incorporated company. A shareholder action was initiated under the Ontario Securities Act against corporate insiders who were alleged to have engaged in insider trading.  Defendants argued: o The Ontario Securities Act and the Canada Corporations Act contained almost identical provisions prohibiting insider trading. o The insiders argued that since a proceeding under the federal Act was available (for which the limitation period had already expired), the proceeding under the provincial Act was of no effect. An argument of ultra vires.  The trial judge held that the proceeding under the provincial Act was valid notwithstanding the federal provisions, but the Divisional Court and the Court of Appeal held that the doctrine of paramountcy prevented the operation of the provincial Act.  Defendant charged under The Ontario Securities Act for violations of insider trading. Provincial Act regulates this. It prevents you from trading.  Federal Act regulates also b/c it is a federal corporation.  Both statutes were valid - provincial statue under 92(13) and federal statute under POGG (b/c not found enumerated). Issue: Are the statutes in conflict? NO Reasoning:  The SCC construed the federal insider trading provisions as having both a securities law and a companies law aspect. Both aspects were considered to have equal importance, so that the provisions could be validly enacted by both the federal Parliament and the provincial Legislature.  The provincial insider trading provisions were validly enacted as being in relation to property and civil rights in the province. Federal incorporation did not render a company immune from provincial securities regulation of general application. The valid provisions of the federal statute did not render inoperative the valid provisions of the provincial Act. The provincial legislation duplicated the federal, but did not contradict it. Paramountcy would apply only in cases of actual conflict in operation, where compliance with one statute would result in non-compliance with the other. The two statutes could operate concurrently and therefore the provisions of the Ontario Securities Act were not rendered inoperative by the provisions of the Canada Corporations Act. Ratio Decidendi: There is no true conflict and thus no paramountcy. Choice of which statute to bring an action under does not amount to True Conflict. Both can operate concurrently. Duplication of Federal law is not enough to bring in PD, you must have an expressed contradiction Comments:  Court looked at both pieces of legislation and found that both were valid.  First line of cases says that duplication between prov and federal law is acceptable. It doesn’t mean that the provincial law is invalidated.  For the paramountcy doctrine to come into play compliance with the provincial legislation must conflict with the federal legislation causing the provincial legislation to be inoperative. The second way that the doctrine can come into play is if the legislation is duplicated o This second idea has come under fire b/c what if a person has been punished under one law does that mean they can also get punished under the other law as well.

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 Second line of authority takes a broader view of what kinds of overlap are impermissible. Where

 

the provincial law duplicates the federal law the paramountcy doctrine applies and the federal law prevails. This prevents someone from being punished under both provincial and federal laws. Courts take a much more narrow approach (only in cases of conflict will the laws be overturned). The rationale is therefore judicial restraint and allowing the provinces to have autonomy in creating laws. Expressed Contradiction: Compliance with one law means a breach of the other. Differs from Bell, where the court found that both provincial and federal laws were in relation to labour relations – dealing with the same subject matter. In this case, we don’t have two laws enacted in relation to the same subject matter, they have distinct characterizations and distinct purposes. There is no conflict in this case. Take away: two laws will be permitted to operate concurrently where there is not conflict between the two laws. Unless there is a conflict or contradiction between the laws the paramountcy doctrine will not apply. (There must be compliance between the two laws.) If the provincial law displaces the federal purpose (they’re opposites of each other) there may be a conflict between the two laws.

General Motors v. City National Leasing, [1989] 1 S.C.R. 641
FACTS: CNL brought a civil action against GM claiming it suffered losses as a result of a discriminatory pricing policy that constituted anti-competitive behaviour prohibited by S. 31.1 of the Combines Investigation Act (Canada). ISSUES: Whether S. 31.1 is sufficiently integrated in the Act so as to make it valid? HOLDING: S. 31.1 is intra vires to Federal Government. Limited encroachment, functional test REASONING: CHARACTERIZATON • The provision authorizes civil actions where companies engage in anti-competitive behaviour. CLASSIFICATION • The court determines that generally this sort of provision would fall under S. 92(13). ANCILLARY POWERS • S. 31.1 is remedial, not substantive; remedies are narrow in scope • Because encroachment is limited, applied functional test • Would have also passed the incidental connection test as it is a necessary part of Act RATIO: If a provision of a valid Act appears to encroach on the other level of government then use the Ancillary Powers Doctrine to determine if the provision is valid.

Ross v. Reg. of Motor Vehicles, [1975] 1 S.C.R. 5
FACTS: Ross received a driving prohibition order (under CC), but allowed to drive during the day, -6 month absolute license suspension. ISSUES: Whether the Acts were both validly enacted. If both are valid, whether the federal rule of paramountcy apply to make the provincial rule inoperable HOLDING: Both laws were validly enacted. Paramountcy not applied. REASONING: • HTA’s purpose is the protection of persons and property (S. 92(13)). Criminal Code (S. 21(27). Both valid, motor vehicles double aspect. • • Is there frustration of feder free-standing right RATIO: In order to invoke the paramountcy rule there must be a true conflict; either impossibility of dual compliance OR frustration of federal purpose OTHER: 45

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• To avoid giving sentences that contracts other law: governments should talk to each other; education for judges; education for prosecutors to avoid double jeopardy situations. IT’S A FEDERAL STATE, OVERLAP IS GOING TO HAPPEN. GET USE TO IT. • Trend is to see conflicts as narrowly as possible to give as must power to each head of power Facts:  The plaintiff, R, was convicted of impaired driving under the Criminal Code, and as a consequence was prohibited from driving for six months except for driving to and from work between Monday and Friday. Section 238 of the Criminal Code said that a judge could make an order prohibiting the convicted driver “from driving a motor vehicle in Canada at all times or at such times and places as may be specified.” The order stated that R's license was not to be suspended.  However, the defendant, Register Motor Vehicles, suspended R's license for a period of three months pursuant to s. 21 of the provincial Highway Traffic Act, which stated that a conviction for impaired driving carried an automatic suspension.  R instituted an action in the Supreme Court of Ontario for a declaration that s. 21 of the Highway Traffic Act was inoperative and that the suspension of his license was of no effect.  A joint application was then made to remove the case to the SCC to determine whether: (1) s. 21 of the Highway Traffic Act was valid; (2) s. 238 of the Criminal Code was ultra vires', and (3) s. 21 of the Highway Traffic Act was rendered inoperative by s.238 of the CC.  Quick summary: Ross was convicted under CCC s.234 for driving while his ability was impaired which prohibits him from driving for a period of 6 mo. except Mon - Fri 8am to 5:45 pm. S.21 of the Highway Traffic Act provides that subject to s.25, the license of a person who is convicted of an offence under s.234 will have there license suspended for 3 or 6 months (if damage to property). Ross said that prov act should be inoperative. The activity of driving a vehicle was in both Acts > Fed = crim, prov = 92(13)  ACTS AT WORK: PROVINCIAL – Road safety under 92(13) Prov legislation says no driving for 3 months FEDERAL – Punishment under the Criminal Code 91(27) driving is ok for work  There is a direct conflict here  Ross argues that it conflicts with the federal legislation therefore paramountcy doctrine should apply and the provincial legislation should be rendered inoperative. Issue:  Is s.21 of the provincial Act rendered inoperative by s. 238(l) of CC? NO Reasoning: A majority of the Supreme Court observed that the Criminal Code provided for prohibitory orders which were limited as to time and place. It was possible for the terms of such a limitation to correspond with a provincial licence suspension, in which case there was no conflict and both could operate simultaneously. Similarly, terms of a Criminal Code limitation might conflict with a provincial licence suspension, in which case the suspension could operate and the driver would not get the benefit of the limitation. In either case the two schemes were able to operate simultaneously, and both had been validly enacted. There was nothing in the Criminal Code authorizing the convicting magistrate to direct that R's licence not be suspended, so this part of the order was held to have been made without jurisdiction.  No conflict as both can operate simultaneously  Because he can comply with one order and not be in breach of another, the legislative pieces are not in conflict. – compliance with provincial (which is stricter) does not put him in breach of the federal (more lenient than provincial)

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The dissenting judges held that both s. 21 of the Highway Traffic Act and s. 238 of the Criminal Code were valid legislation. However, since there was a conflict the federal legislation had to prevail such that the provincial suspension would be inoperative.  Both valid but a conflict exists because the federal legislation says the suspension is intermittent and the provincial is a total suspension, therefore the federal power should prevail. Class Notes:  Problem: if he complies with the provincial order he doesn’t benefit from the federal legislative order. (Court doesn’t look at it the other way around where if he complied with the federal legislation he would not be complying with the provincial legislation. Wacko inconsistency!)  The CC specifically states that provincial legislation will also apply and may be in conflict with the federal legislative provisions.  There is no concern under division of powers of the loss itself NOTES: a reference to Multiple Access v. McCutcheon  What aspect of Multiple Access (insider trading) is used here (in MA one statute said yes and the other says no)? o If provincial and federal laws are duplicating one another, the paramountcy doctrine should not come into play. o Historical overview that the court takes of the paramountcy doctrine – need to have a conflict for paramountcy to apply, but court could have gone a very different way. o Ie. Nigeria (covering the field approach), of feds passed a law in an area, there is no room left for the provinces to pass a law. o But in Canada, courts take different approach (Multiple Access was pioneer) that requires an evaluation of true conflict. Ratio Decidendi:  No conflict exists b/c you could obey both by not driving at all. You must comply with the stricter rule to obey both.

Multiple Access v. McCutcheon, [1982] 2 S.C.R. 161
FACTS: Ontario Securities Act and Canadian Corporations Act had almost identical provisions. Multiple Access is a federally incorporated company charged with insider trading under Ontario law. Federal limitation had expired. Insider Traders (McCutcheon) argued that Ontario Securities Act is ultra vires and the regulation of trading shares was under federal jurisdiction ISSUES: Whether the Ontario Securities Act allows for dual-compliance and does not frustrate the purpose of the Corporations Act (Canada). HOLDING: Paramountcy does not have to be applied REASONING: Can comply with both AND does not frustrate federal purpose. RATIO: If both Acts can be complied with and the Provincial Act does not frustrate the purpose of the Federal Act, paramountcy does not apply.

Bank of Montreal v. Hall, [1990] 1 S.C.R. 121
FACTS: The Bank Act allows banks to immediately take possession of assets when someone defaults on the load. The Limitation of Civil Rights Act requires notice to be given to the debtor before goods are seized. ISSUES: Whether there is a conflict between the Bank Act (Canada) and the Limitation of Civil Rights Act (provincial) and the paramountcy doctrine should apply. HOLDING: The Limitation of Civil Rights Act frustrates the purpose of the Bank Act REASONING: • Impossibility of dual compliance? NO, comply with Limitation of Civil Rights Act • Frustrate federal purpose? YES, purpose of Bank Act was to create a freestanding right RATIO: If a provincial law undercuts a federal purpose, the federal law will prevail.

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Facts: A man buys farm equipment and defaults- the bank repossesses the farm equipment under federal Bank Act but the provincial Limitation of Civil Rights Act does not allow the repossession to take place in the manner it did. Both pieces of legislation were found valid. Issue: whether there is in fact an actual conflict in operation? Ruling: There is an actual conflict in operation as the two acts prescribe different remedies for foreclosing and seizing items put up as security for loans. Compliance with the federal statute would be defiance of the provincial statute. As the provincial legislation frustrates the federal legislative purpose the provisions which do frustrate the federal legislation should be deemed inoperable. This used the ‘covering the field’ test or the ‘negative implication’ doctrine- where a broader reading is used and a valid provincial law is deemed inoperable because it has an impact on a matter already regulated by a federal statute.

Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188
FACTS: Tobacco Act (Canada) and Tobacco Control Act (Sask.). Provisions were similar, but Sask. was stricter. ISSUES: Is S. 6 of the Tobacco Control Act (Sask.) in conflict with Tobacco Act (Canada)? HOLDING: No, comply with the stricter law. REASONING: Validity: both are validly enacted Paramountcy • Can a person simultaneously comply with both Acts? Yes, comply with the stricter provisions. • Does the Provincial Act frustrate the purpose of the Federal Act? No, it supplements it. Federal purpose was prohibitory, gives an exemption; did not give a free-standing right. RATIO: If both Acts can be complied with and the Provincial Act does not frustrate the purpose of the Federal Act, paramountcy does not apply. Facts: Retail display of tobacco products. Federal tobacco legislation allowing retailers to display tobacco and tobacco‑related products, and signs indicating availability and price of tobacco products. Provincial tobacco control legislation banning all advertising, display and promotion of tobacco or tobacco‑related products in any premises in which persons under 18 years of age are permitted Issue: Whether provincial legislation is inoperative pursuant to doctrine of federal legislative paramountcy Holding: The appeal is allowed. The provincial legislation is not inoperative by virtue of the paramountcy doctrine. Reasoning: There is no inconsistency between s. 6 of The Tobacco Control Act and s. 30 of the Tobacco Act. First, a retailer can easily comply with both provisions in one of two ways: by admitting no one under 18 years of age on to the premises, or by not displaying tobacco or tobacco‑related products. The provincial legislation simply prohibits what Parliament has opted not to prohibit in its own legislation and regulations. Second, s. 6 does not frustrate the legislative purpose underlying s. 30. Both the general purpose of the Tobacco Act (to address a national public health problem) and the specific purpose of s. 30 (to circumscribe the Tobacco Act’s general prohibition on promotion of tobacco products set out in s. 19) remain fulfilled. In demarcating through s. 30 the scope of the federal legislation’s general prohibition on the promotion of tobacco products, Parliament did not grant retailers a positive entitlement to display such products.

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Ratio: If there is a possibility of dual compliance and the provincial legislation does not frustrate the purpose of the federal legislation, then both are said to be valid under the paramountcy doctrine, and the federal legislation is to be followed. Class notes: Federal Legislation: Bans promotion of tobacco products, but has an exception that allows the display of retail tobacco products Provincial Legislation: Ban on all tobacco promotional advertising and retail display where children would be exposed  Issue is dual compliance – one is saying yes, the other no  Could have a conflict where it is impossible for someone to comply with both, or, the provincial legislation frustrates the purpose of the federal legislation  Retailer can comply with both – so it gives rise to the paramountcy doctrine, meaning the federal legislation is to be followed  Purpose of both is to protect the health of consumers so the more strict regime must be complied with  Cleans up rule found in previous paramountcy cases – can look at the problem in either the sense of frustration or impossibility of dual compliance

Canadian Western Bank v. The Queen in Right of Alberta, [2007] 2 S.C.R. 3
FACTS: Insurance Act required licensing and applied to everyone that sold insurance in Alberta. Bank Act authorized banks to promote 8 kinds of insurance. ISSUES: Whether the Insurance Act applied to banks, a federal undertaking (S. 91(15)) HOLDING: Yes, it did apply to banks. Insurance is not a core part of Banking. REASONING: • Validity: Insurance Act valid under S. 92(13). Bank Act valid under S. 91(15) • Paramountcy: Impossibility of dual compliance? No, already complying with both at the time of trial. Frustration of federal purpose? No, Bank Act is permissive, not exhaustive and there is no indication that insurance is part of bank’s core operation • IJI: Insurance is an ancillary component of banking, not the core. Insurance is not required for a loan; you get it after approval. Insurance is not part of the business of banking. • Para 48: It is when the adverse impact of a law adopted by one level of government increases in severity from “affecting” to “impairing” (without necessarily “sterilizing” or “paralyzing”) that the “core” competence of the other level of government (or the vital or essential part of an undertaking it duly constitutes) is placed in jeopardy, and not before. RATIO: If a provincial law impairs an aspect of a federal undertaking that is not part of their core operation, IJI does not apply. Pith and Substance Doctrine: Must always begin with this.  Initial analysis consists of an inquiry into the true nature of the law in question for the purpose of identifying the “matter” to which it relates  If the pith and substance of the impugned legislation can be related to a matter that falls within the jurisdiciotn of the legislature that enacted it, the courts will declare it intra vires – if not, ultra vires and a violation of the division of powers  2 elements to consider 1. Purpose of enacting body o use both intrinsic and extrinsic evidence 2. Legal effect of the law o are the effects of the legislation too great that the purpose is exausted?  If dominant purpose is decisive and secondary objectives and effects affect its constitutionality outside its jurisdiction, the legislation is still intra vires. These are merely incidental effects.

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If there are incidental effects, the pith and substance doctrine might be used to read down legislation to determine what falls exclusively under the power of a given level of government  It is impossible to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the jurisdiction of another level of government. Double Aspect Doctrine  Some matters are by their very nature impossible to categorize under a single head of power – they may have both federal and provincial aspects.  Ensures that policies of the elected legislatures of both levels of government are respected  Both levels of government can adopt valid legislation on a single subject depending on the perspective form which the legislation is considered – the “aspects” of the “matter” in question. Interjurisdictional Immunity Doctrine  Sometimes though, the powers of one level of government must be protected against intrusions, even incidental ones, by another level of government  Recognizes that the constitution is based on the allocation of exclusive powers of both levels, not concurrent powers.  Refers to “exclusive” powers for both levels of government that cannot be invaded by the other  The doctrine is reciprocal: it applies to protect provincial heads of power and provincially regulated undertakings from federal encroachment, and to protect federal heads of power and federally regulated undertakings from provincial encroachment. However, it leads to “asymmetrical results”  the doctrine has been invoked in favour of federal immunity at the expense of provincial legislation.  “Watertight Compartments” metaphor – but LEGAL VACUUMS are not desirable  Constitutional interpretation does NOT favour this doctrine – its application gives rise to concerns by reason of its potential impact on Canadian Constitutional arrangements.  “Reading down” legislation happens often without much doctrinal discussion. Constitutional law should have interplay.  Dickson C.J. – The court should favour, where possible, the ordinary operation of statutes enacted by both levels of government.  In this case, sweeping immunity argued by the banks is not acceptable in the Canadian federal structure. It exposes danger of allowing this doctrine to exceed its proper limit and to frustrate the application of the pith and substance and the double aspect doctrine.  A broad application of the doctrine to “activities” creates practical problems of application much greater than in the case of works or undertakings, whose limits are more readily defined. Inconsistent with pith and substance, double aspect and paramountcy  Reliance on this doctrine would create serious uncertainty – cannot develop an abstract definition of “core” – Canadian constitutional interpretation requires an incremental, case by case approach. Reliance would lead to a firm, more rigid and centralized form of federalism.  Doctrine is superfluous – parliament can make legislation precise enough to leave it with no incidental application  In this case, insurance is not a vital part of the banking industry and therefore this doctrine does not apply. Arguments made for insurance not being a vital part of the banking industry were: o Insurance promoted by the banks is not mandatory. o Insurance only loosely connected to the eventual payment of the debt o Banks have a separate profit centre for this o Promotion of insurance helps reduce their overall portfolio risk

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This is not a means of realizing on a debt for the bank but is rather a matter of customer relations Doctrine of Federal Paramountcy  Recognizes that where laws of the federal and provincial levels come into conflict, there must be a rule to resolve the impasse – the Federal Law prevails, and the provincial law is rendered inoperative to the extent of the incompatibility.  In order to trigger the application of the doctrine, the onus is on the party relying on the doctrine of federal paramountcy to demonstrate that the federal and provincial laws are in fact incompatible by establishing either that it is impossible to comply with both laws or that to apply the provincial law would frustrate the purpose of the federal law  In the present case, the doctrine of federal paramountcy is also inapplicable because neither operational incompatibility nor the frustration of a federal purpose have been made out. Since 2000, the banks have been promoting insurance in Alberta while complying with both the federal Bank Act and the provincial Insurance Act. This is not a case where the provincial law prohibits what the federal law permits. The federal legislation is permissive not exhaustive, and compliance by the banks with the provincial law complements, not frustrates, the federal purpose WHY THIS CASE IS SO IMPORTANT • Order to apply doctrines: 1. Validity 2. Paramountcy 3. IJI • IJI test: impair essential core of federal entity (NOT affect like in Bell or destroy like McKay) • IJI can only apply to Federal undertakings that have been recognized before

Quebec (A.G.) v. Lacombe, [2010] 2 S.C.R. 453
FACTS: ISSUES: HOLDING: REASONING: RATIO:

Canada (Attorney General) v. PHS Community Services Society, [2011]
FACTS: ISSUES: HOLDING: REASONING: RATIO:

Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373
FACTS: Anti-Inflation Act (Canada) applied to federal, public and private enterprises. Provincial enterprises affected if province entered into an agreement; 8/10 agreed. Act regulates wages, dividends, profit and rent control (wide reaching). ISSUES: Whether the Act is supportable under the POGG power – emergency branch. Whether the existence of an emergency is essential to the Act’s validity. HOLDING: Supportable under POGG – emergency branch (7/2). Emergency is essential to the Act’s validity (5 REASONING: WAS FEDERAL GOVERNMENT RESPONDING TO EMERGENCY OR NATIONAL CONCERN? • Preamble: “serious”, “necessary to respond to matter”. May have not used “emergency” to prevent one. SCOPE OF EMERGENCY, PROVINCES ALLOWED TO OPT IN/OUT • Majority of provinces signed onto agreement. Means scope is national in nature. Courts do not want to second guess the wisdom of governments. 51

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CAN COURTS USE EXTRINSIC EVIDENCE? • Yes, extrinsic evidence is admissible. Used opinions from Economists, stats from Stats Canada. Shows the government had a rational basis for perceiving there to be an emergency. Can use for figuring out what a statute means, and can use for judicial notice (facts that do not have to be proven). RATIO: If the legislation is clear, temporary and enacted due to an emergency (current or preemptive), then the legislation could be classified under the POGG – emergency branch. DISSENT: Concerned about the breadth of emergency powers and thought that it encroached on too many aspects of provincial powers. Rejected on all three criteria for National Concern Doctrine. EMERGENCY LEGISLATION • Outlines what constitutes an emergency, including Federal Cabinet (Governor in Council) can declare an emergency. The declaration must concisely describe the state of affairs constituting the emergency and it must be confirmed by Parliament. A declaration cannot be made without prior consultation with affected provincial government and an agreement by the provincial Cabinet that the province is unable to deal with the situation. • Federal government could get around the legislation by saying that the Emergency legislation is just legislation whereas POGG power is a constitutional power, which trumps statutes. Facts: Federal govt introduced "Anti-Inflation Act, which controlled increases in wages, fees, prices, profits, and dividends in certain areas of the private sector. Act applied directly to the federal public sector, and authorized the govt to enter into agreements w/ the provinces to apply the program to provincial public sectors. Most of the private sector relations regulated by the Act were under prov. jurisdiction as a long series of judicial decisions had given the provinces regulatory power over most commercial and business transactions in the province. A reference was directed to the Supreme Court of Canada to determine whether the legislation was ultra vires, and whether the intergovernmental agreement between Canada and provinces was valid. Issue: Was the Anti-Inflation Act a valid exercise of emergency powers? YES Reasoning: Characterization: P+S:  Legislation to contain and reduce inflation by implementing wage and price controls in the province  legislation to reduce inflation (Beetz wanted a more specific characterization than this)  Need to examine the broad nature that the Act addresses to accurately classify legislation. – Beetz wanted more.  In both judgments, the legislation was seen to encroach on provincial areas, but that the emergency argument was justified.  4 members of the court said no to national concern  5 were undecided  Classification: s. 92(13) property and civil rights.  Does it fall under the emergency powers doctrine or the national concern branch of POGG?  (Laskin)Emergency powers doctrine: Temporary legislation to get inflation under control and justified under the emergency doctrine. Says court doesn’t need to consider whether it falls under the national concerns doctrine.  (Richie)Emergency powers doctrine: Agrees with Beetz in rejecting the national concern branch.  (Beetz, dissent) Rejects emergency powers doctrine, and rejects national concern because it lacks specificity. Doesn’t support legislation under either POGG branch.  The Court unanimously held that the agreement was invalid. The Act provided that a federal Minister could enter into an agreement with the government of a province to have its provisions apply to the provincial public sector. However, it did not specify how or on what authority the provincial government would execute such an agreement. If the agreement 52

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were valid it would have the effect of altering the law of the province and precluding any future changes found to be inconsistent with the sanctions and guidelines imposed by the Act. The Provincial Crown would have been legislating by proclamation, without any authority from the provincial Legislative Assembly.  Laskin: The argument to support the validity of the legislation was advanced under two heads: the containment of inflation was a matter of national interest, and there was an existing or apprehended economic crisis amounting to an emergency. Laskin, C.J. for four members of the Court decided that the legislation was valid as "crisis legislation", being for the peace, order and good government of Canada. The judges looked at extrinsic evidence such as the Consumer Price Index to conclude that Parliament had a rational basis for regarding the Act as a measure which was temporarily necessary to address an economic crisis.  Parliament's authority to act as it did was supported by its jurisdiction over monetary policy and regulation of trade and commerce. It was therefore unnecessary to consider the national interest argument. Also looked to the preamble of the legislation.  Even if the legislation is not temporary you need to look at the circumstances during which the legislation was passed, it could still be justified in the circumstances and if the circumstances cease to exist the legislation would no longer be valid.  Beetz for the Dissent: For the two members of the court holding the legislation to be ultra vires, Beetz J. said of the containment of inflation: It is an aggregate of several subjects some of which form a substantial part of provincial jurisdiction. It is totally lacking in specificity. It is so pervasive that it knows no bounds. Its recognition as a federal head of power would render most provincial powers nugatory.  Therefore, the legislation could not be supported under the national dimensions doctrine. It was further held that Parliament did not purport to enact the legislation to deal with a national emergency. The Act was therefore invalid insofar as it applied to the provincial private sector. However, since severability was not pleaded, the Act as a whole was held to be ultra vires.  Accepts that there is an emergency doctrine that can apply in some situations and admits that inflation could force the government to invoke such emergency legislation. Doesn’t say that the gov has to say “this is an emergency” but he says that the gov has to do more than simply call it an “emergency.”  Whenever the national concern doctrine is applied, it’s effects are permanent, whereas in an emergency situation, the effects are temporary  Richie: For the remaining three members of the Court, Ritchie J. stated that the validity of the legislation depended on whether it was enacted to combat a national emergency. It did not rest upon the national dimensions doctrine, because unless a national concern is made manifest by a national emergency, "parliament is not endowed under the cloak of the "peace, order and good government" clause with the authority to legislate in relation to matters reserved to the Provinces under s. 92 of the British North America Act, 1867" (Macklem, Risk, Rogerson, et al.).  Although neither the preamble nor any of the provisions of the Act specifically declared a national emergency, a reading of the federal Government's white paper on the subject of inflation made it clear that Parliament was responding to an economic crisis. Therefore, legislation was valid.  Richie is not persuaded by the spring board argument, don’t need to anchor the power its exercising under s.91  Finds that the legislation itself must be temporary. Essential to give consideration to materials/evidence before Parliament to make such a legislation. Ratio: There need not be an actual emergency, only the perception or apprehension of a crisis. Emergency powers may be invoked to prevent an emergency, and may be used in peacetime as well 53

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as wartime. The Anti-Inflation Act fulfilled the requirements for the exercise of emergency powers, and therefore is intra vires. It was temporary and necessary. OBITER: Beetz J, in dissent, focused on the fact that no emergency was explicitly stated in the act, and so failed in its political responsibilities of accountability. Subsequent exercises of EP would be wise to be explicit for the exercise of those powers, i.e. to state "As a result of a (perceived/apprehended) state of national emergency, Parliament enacts as follows..." Comments:  POGG = GAP – EMERGENCY – NATIONAL CONCERN  Related subject areas can be used as a spring board for the government’s power in the emergency powers doctrine. 8 supported the legislation, Beetz did not.  Summary of powers that the federal gov has under the legislative branch: the matter is of such crisis/emergency nature that it affects Canadian as a whole and parliament must respond with legislation that will have such am impact. Emergency can be apprehensive, can use the emergency powers doctrine to prevent an upcoming legislation. Court differs on the need for it to be of a temporary nature.  A significant aspect of the case is that it introduced the use of extrinsic evidence  Federal Parliament has enacted new legislation to deal with national emergencies since this time (Emergencies Act) , which defines a national emergency. It includes a provision that a declaration cannot be made without prior consultation with affected provincial governments and an agreement by the provincial Cabinet that the province is unable to deal with the situation.  Laskin began with emergency examination, because if this was seen as valid, then there would be no need to look at a national concern perspective. o His reasons for finding that this leg. does fall within emergency branch are that: o The preamble addresses this as an emergency. How much weight is appropriate to give this element? It is not essential; counts as some evidence that government is acting on what is perceived to be an emergency. The court said that it did not matter that the government did not use the words emergency. If the preamble did not say anything about emergency’s it would not be favourable to government, but not critical.  The court examined extrinsic evidence (government reports; academic opinion; what other jurisdictions have done; stat. figures). In addition to this, it may be appropriate for court to take judicial notice of certain matters – means something is so obvious that evidence is not needed. o The courts said that the economic crisis was obvious and while some extrinsic evidence is necessary, they would take judicial notice of the current state of the economy. o What is the courts role with respect to the evidence? – showing there is a rational basis to the legislation because that is the courts role. Role of court is not to decide on whether Parliament made a good policy decision, nor whether there were facts that allowed the government to declare the emergency. All that the evidence has to show was that in the minds of the government, there was a rational decision on creating the legislative response.  The legislation also showed that the federal government was trying to operate on a level of cooperation with the provincial government. This cooperation is not necessary unless there is not a strong basis for using the emergency power.  This legislation is temporary which goes to show that the emergency power of the fed. Government is a tool the federal government can invoke. Therefore, the temporary nature of the legislation supports the emergency nature of the argument.  Beetz deals with the national concern doctrine first (p.292) o His pith and substance characterization is … 54

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Agrees largely with the other four on many points, but does not believe that the feds can rely on the emergency power because they do not articulate that they are invoking an emergency power. o Sees the power as so extraordinary that there should be a requirement of a declaration that this is the power that Parliament is relying on. Do not have to use the word emergency, but need to address the power. The absence of this is fatal to the validity of the legislation. o National Concern Doctrine  1. Has to be new  2. Has to be a subject matter that is distinctive in nature (single and indivisible)  Provinces acting alone or together could not deal with it in an effective way  3. Scale of impact on Provincial powers: Not a temporary matter – if it is of national concern, then falls directly under Federal power o So in this case, we are not dealing with something that is new (inflation is age old) Parliament did say that it was a matter of serious national concern. Why did this not go far enough? – Because you could say this about many issues and it would therefore apply to broadly and the federal government could then legislate on . To say this as well, it would imply that the government is relying on the national concern branch, but before the court, they are arguing the emergency power branch. There is doubt that at the time of legislation that the government was relying on the emergency powers branch rather than the national concern branch.

R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401
FACTS: Crown Zellerbach was dumping wood waste into a cove on Vancouver Island. Charged under the Ocean Dumping Control Act, which regulates the dumping of substances at sea to prevent harm to marine environment. Water applies to internal waters, sea water, territorial waters (certain distance from dominant coast line). Not applied to inland waters (fresh water, lakes). ISSUES: Whether the Ocean Dumping Act intra vires. HOLDING: Yes, POGG – national concern REASONING: • Purpose of legislation: said marine pollution and effect on marine life. Implied that it was to bring Canada in compliance with a treaty with USA. Looks like it protects marine life AND human health AND marine environment • Effect: Prohibit ANY dumping; permit to determine if substance is harmful or not • Provincial inabilities test: subject matter is a matter a province cannot deal with because is crosses boundaries and is inter-provincial in nature. • New matter? Yes, it is matter that has recently become of national concern. • Concise, singleness, distinctive: Yes, limited to salt water. It would be difficult to enforce; province would not know where their jurisdiction would end as there is not clear demarcation. • Scale of impact: No big impact, only deals with salt water RATIO: Legislation can be enacted under the National Concern Branch if it is a matter the province is unable to deal with, it is a new matter (or a matter that has newly become of national concern), the legislation is concise, single and distinct and there is a low scale of impact on the provinces DISSENT: There is a large provincial impact. It prohibits all substances and then lets someone decide what is safe or not through licensing regulations. “The prohibition in fact would apply to the moving if a rock from one area of provincial property to another.” The legislation is not distinct enough; waters have no boundaries and the Act is not 100% clear about what type of waters is applicable besides the distinction between fresh and salt.

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Friends of the Oldman River Society v. Canada, [1992] 1 S.C.R. 3
FACTS: Alberta wanted to build provincial dam. Department of the Environmental Act (Canada) requires matters of federal responsibility were required to do an Environmental Impact Assessment. Alberta obtained approval from Minister of Transportation, who didn’t do an EIA. Society brought the action. ISSUES: Whether an environmental impact assessment should be completed. HOLDING: Environment is a double aspect matter. REASONING: It is a broad subject matter and must be broken down to fit within already existing head of power. RATIO: The environment is a broad subject matter and will not be classified as an issue of National Concern. FEDERALLY RESPONSIBLE MATTERS: Federal entities; Aboriginal rights, fisheries

Carnation Co. v. Quebec Agricultural Marketing Bd., [1968] S.C.R. 238
FACTS: Quebec Agricultural Act created a Board, which created the plan in dispute. Under the plan, the Board was able to arbitrate the price of milk. Carnation purchased milk from Quebec farmers, processed the milk THEN exported it to other provinces. ISSUE: Whether the Provincial statute is intra vires the province. HOLDING: Intra vires; aimed at production, which is intra-provincial REASONING: Court found that legislation was aimed at purchase price; purpose was the purchasing of milk within the province. It only incidentally affects export price. Analogous to provincial labour laws; it’s just an effect of doing business. RATIO: Look at what the legislation is aimed at. If it is a transaction that is completed within a province, then it is intra vires the province. Incidental effects are acceptable. Facts:  Carnation makes evaporated milk (processed milk) in Sherbrook. The milk came from Quebec farmers and the Act set prices that Carnation must pay to get the milk. The respondent, Q, was created by the Quebec Agricultural Marketing Act. The Act provided that producers of agricultural products in the province could apply to Q for approval of joint marketing plans. In addition to approving the plans, Q would arbitrate disputes arising out of the execution of such plans. The appellant, C was a company whose Quebec operations processed raw milk into evaporated milk, most of which was sold outside the province. Q had approved a joint plan submitted by the Quebec Carnation Company Milk Producers' Plan. The order approving the plan set up a board which was allowed to negotiate on behalf of the milk producers for the sale of their products to C. When there was no agreement as to the purchase price, Q arbitrated the matter and in two separate orders set a price. C attacked the validity of Q's decisions on the ground that the legislation was an attempt to regulate trade and commerce. The decisions – that the legislation is valid – were upheld by the Superior Court and the Appeal Side of the Court of Queen's Bench. C argues that some of the milk is exported outside of Quebec and because they export the milk the prices set within Quebec will impact the price they have to ask for their product, which makes it uncompetitive.  Carnations position is that b/c they do there business outside and it is inter-provincial then it does not apply.  Court replies that the pith and substance of the act is to regulate the price of milk within the province and that the effects are merely incidental – must look at the true essence of the act.  Issue: Was the provincial Act ultra vires b/c it had an affect on the federal powers of T+C (extraprovincial trade)? NO Court replies that the pith and substance of the act is to regulate the price of milk within the province and that the effects are merely incidental.

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Reasoning:  P+S: Legislation is in relation to price-setting of milk within the province of Quebec. (Court not concerned about incidental (minimal) effects outside of the province.)  C argued that the orders enabled Q to set a price for a product which, after processing, would mainly be used for export outside Quebec. As such it was regulation of trade and commerce and beyond the competence of the provincial Legislature. This argument was rejected by the Supreme Court of Canada. The price determined by the orders would have had an effect on C's export trade, but this did not necessarily constitute regulation of trade and commerce.  The question was not whether the orders affected interprovincial trade, but whether they were made "in relation to" the regulation of trade and commerce. The orders did not purport to control or restrict trade, and there was no evidence that they did in fact control or restrict it. Therefore, the appeal was dismissed. Ratio: The legislation only affected (restricts and controls) extra-provincial T+C INCIDENTALLY. Province can regulate T+C w/in the province even though it has affects outside the province as long as those affects are incidental. The pith and substance of the legsialtion will help to determine if intra vires. We have to be concerned at what the legislation is aimed at, if it is aimed at trade outside the province or inside the province. Comments:  Need to look at whether legislation is aimed at inter or intra provincial trade and commerce  Also look at whether the trade outside the province is merely and incidental effect on federal jurisdiction  But what about how the price set inside the province affects the export price? Court says that it is simply the price of doing business and not the actual aim of the legislation.  So key distinction between what it was aimed at and its incidental effects

A.G. Manitoba v. Manitoba Egg & Poultry Assn., [1971] S.C.R. 689
FACTS: Province created an egg Board. It was only through this Board that any eggs may be sold or offered for sale. Board had authority over marketing quotas, grading, marketing, pricing and packaging. ISSUE: Whether the Plan was ultra vires the Manitoba Legislature. HOLDING: Yes, the Plan deals with inter-provincial trade, which is ultra vires of the province. REASONING: The Plan was aimed at transactions crossing provincial boundaries. There was no price discrimination, but there was the opportunity to discriminate. If there is price discrimination, then for sure the statute will be ultra vires. The purpose of the Act was to seek advantage for Manitoba and control imports. S. 121 says that there will be no trade barriers within Canada. RATIO: If there is evidence of price discrimination in a Provincial Act, then the Act is ultra vires. If the purpose of the Act is to control importation of goods, then the Act will be ultra vires the province. BURNS FOODS LTD. V. AG MANITOBA (hogs; ultra vires Province) FACTS: Marketing Board controlled the purchase and slaughter of hogs within the province. Hogs came from inside and outside the province. All hogs had to go through the Hog Producers’ Marketing Board. ISSUE: Whether the Act was ultra vires the province. HOLDING: Yes, regulated hogs being imported from other provinces. REASONING: The court characterised the Board as regulating transactions between provinces. The regulation was not discriminatory, but court still found scheme ultra vires. RATIO: Regardless of whether legislation is discriminatory to extra-provincial entities or items, legislation attempting to regulate those entities or items will be found ultra vires the provinces. Comments:  The purpose of this legislation is to protect the local industry (Manitoba egg producers), and to put it on par with other producers outside the province 57

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 In this case, the Board controls imports, which is more than simply an incidental effect and the

 

  

import control is not in the province’s power. All producers were forced to go through the board where in Carnation it was an option to enter into an agreement with the Board. In Carnation, the Board didn't control imports or exports but had merely incidental effect on exports. Carnation regulated only purchasers of milk within the province. In this case, the aim of the legislation is to regulate the flow of eggs into MB. Here the legislation was aimed at interprovincial trade (controlling prices that were crossing provincial boundaries) In this case, it deals with INTER provincial trade, so aims at regulation under federal jurisdiction. Manitoba turns on the fact that there was price discrimination Laskin: Have to look at whether the legislation embraces products are within the current provincial trade. Once a product crosses provincial boundaries, and if the province is legislating while they are crossing, that will be seen as beyond the province’s powers. Burns Foods Ltd (note 2, p. 339): o Does not have the feature of the price discrimination but the court came to the same conclusion– ultra vires because aimed at products that crossed provincial boundaries.

Re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198
FACTS: Program that regulated the production of eggs in Canada as a whole. Ontario Board set quotas on eggs for intra-provincial marketing that were identical to the inter-provincial federal scheme; these quotas were challenged by the Ontario Farm Products Marketing Board. ISSUE: Whether the quote scheme was ultra vires the Ontario government. HOLDING: The scheme is intra vires the province. REASONING: Characterization: dealing with marketing of eggs within the province. Classify: the production was a local undertaking that fell under S. 92(10). Paramountcy: The regulations were complementary to the federal regulations; court approved double-aspect nature of the scheme. RATIO: Provincial schemes that regulate marketing within a province and that mirrors a federal scheme designed to regulate matters inter-provincially will be intra vires the province. These sorts of marketing schemes will be valid under the double-aspect doctrine. DISSENT: Scheme offends S. 121 by preventing free flow of goods within Canada.

Canadian Industrial Gas and Oil Ltd. v. Sask., [1978] 2 S.C.R. 545
Facts: Following the sharp rise in world oil prices in 1973, the Government of Sask. enacted legislation imposing a mineral tax and royalty surcharge on income received from the oil produced in Sask. [Well-head was within province even though pipe took it out of province immediately.] The tax was the full amount of the difference between the amount actually received at the well-head (or that the Minister determines should have been received) and the basic well-head price, a figure fixed by statute. The effect was that the Government of Saskatchewan would acquire the benefit of all increases in the value of Saskatchewan oil above the basic well-head price. Almost all of that oil (98%) was exported. Appl was an oil producer; it challenged the validity of the legislation on the grounds that the legislation regulated interprovincial and international trade and commerce. Issue: Was the provincial Act intra vires considering that practically all of the oil is destined for interprovincial or international trade? NO – PROVINCIAL LAW INVALID - appeal allowed Reasoning: (Martland J.) The legislation allowed the province to fix the price of oil, which had almost no market within the province. Therefore, the legislation was ultra vires as being in relation to the regulation of interprovincial trade. - This case is not similar to that of Carnation (where the effect on exports was incidental). In this case, the effect was not incidental because it aimed directly at the production of oil destined for 58

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export and had the effect of regulating the export price, since the producer was effectively compelled to obtain that price on the sale of his product. Ratio: Provincial legislative authority does not extend to fixing the price to be charged or received in respect of the sale of goods in the export market. That involves the regulation of interprovincial T+C within s.91(2). ***Dissent: (Dickson J.) - The true nature and effect of the legislation was direct taxation within the province for the purpose of raising revenue for provincial purposes, and it was not merely a colorable device for assuming control of interprovincial trade. The language of the impugned statutes does not disclose an intention on the part of the Province to regulate, or control, or impede the marketing or export of oil from Saskatchewan. Furthermore, the tax does not influence the price but rather the price determines the tax. Therefore, difficult to say that the flow of commerce was in any way impeded. Dickson agrees that purpose is aimed at trade out of province but the EFFECT only hurts the Sask oil company, no one else. (Effect important – Alberta Bank case). Majority only looked at province. Class: Step 1 – P&S Step 2 – Test to see whether interprovincial => is the Act aimed at trade going out of the province? Yes Step 3 – Is the effect substantial? NO (no effect on T&C) NOTE: Note on taxation: Province can only tax directly (the people in the province), they cannot do it indirectly because then they are imposing taxes on people outside the province DECISION REVERSED BY CONSTITUTIONAL AMENDMENT – use dissent in exam (like Alberta Bank case, effect of the Act is crucial) What s. 92(A) does is rectify a wrong decision. (1) In each province the Legislature may exclusively make laws in relation to: a) Nonrenewable natural resources b) Forestry d) Electrical energy. (2) In each province the Legislature may make laws in relation to the export of these things If the export is nonrenewable natural resources, forestry or electric energy, then those 3 areas have special considerations for provincial power over exports This is what the Western provinces got in exchange for patriation.

The Queen v. Klassen (1960), 20 D.L.R. (2d) 406 (Man.C.A.)
FACTS: Canadian Wheat Board Act: quota system helped maintain “an orderly international trade in grain”. Klassen was charge under the Canadian Wheat Board Act for not recording a delivery in a log book. The un-recorded delivery was being produce and sold locally. S. 16 prohibited delivery of grain to grain elevators contrary to the Act. ISSUE: Whether S. 16 is ultra vires the Federal Government. HOLDING: Intra vires Federal Government; necessarily incidental REASONING: Characterize to maintain orderly international trade and ensuring equitable system of marketing grain throughout the country and regulating commodity that is being transacted between provinces and ultimately exported internationally. S. 16 is mechanism to ensure the ultimate purpose of the Act; deemed to be necessary to the Act. If not, it would undermine the Act as a whole. S. 45 declared all elevators and other buildings used in the grain trade to be works to the general advantage of Canada; courts don’t usually challenge declarations. RATIO: Court rejected the narrow interpretation of S. 91(2) from ETE. If specific provisions are justified under S. 91(2), then encroachment on provincial jurisdiction may be valid under Ancillary Powers doctrine.

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Caloil v. A.G. Canada, [1971] S.C.R. 543
FACTS: Legislation was aimed at increasing market for Western oil; to create market and protect Western oil product. Oil could only be imported if importer could ensure that produce will only be consumed on Eastern side of “Ottawa Line”. ISSUE: Whether law is intra vires Federal Government. HOLDING: It is intra vires Federal Government REASONING: Act aimed at importing oil into Canada and to protect Western Oil producers; beyond Provincial jurisdiction. Scheme allows for permits to be enacted that deal with local consumption; seen as necessary for the Act as a whole. RATIO: Similar to Klassen case. The Ancillary Powers doctrine will allow Parliament to regulated intra-provincial trade as a necessary complement to its jurisdiction over imports. Facts: The appellant, C, was an importer and distributor of petroleum products. Importation of oil/gas to be sold will come in through one province but sold throughout the other provinces. (Feds have power outside where it's coming from and provinces have Power in terms of sale). Under the amended scheme of the National Energy Board, it refused licences for import without a declaration that the gasoline would be consumed where it was imported. An action was brought in the Exchequer Court for declaratory relief. The Court dismissed the action and an appeal was taken to the Supreme Court of Canada.  The problematic part of the legislation is not the importation of the oil into the country it was what happened to the oil once it was into the country. The board refused licenses to importers unless it was used in and consumed in Ontario.  Challenging legislation saying its not valid re: interprovincial trade  Caloil could only import gas to Ontario if it was going to be consumed there.  Board wanted to protect the western oil industry – because of the cheap oil coming in from other countries. Issue: Is it legislation that is extra-provincial or intra-provincial? Are the Feds trying to reg. T+C w/in the province? YES Did it improperly invade provincial jurisdiction? NO Reasoning:  P&S: Ensure that all oil gas producers in the country had market by controlling importing of oil.  S. 91(2): o Where dealing with the regulation of a specific trade in the province this is not within the federal government’s jurisdiction. o Once goods are imported, caloil contends, they should be treated the same as goods produced in the province – court said the federal government should have control over these goods.  The Supreme Court interpreted the amended Regulations as demonstrating a policy of controlling imports to foster the development and utilization of Canadian oil resources. The market for imported gasoline was restricted in order to reserve the market in other areas for domestic products. Therefore, the true character of the enactment was the administration of an extraprovincial marketing scheme. The interference with local trade was an integral part of the extraprovincial trade policy and so did not improperly invade provincial jurisdiction.  By saying the product has to be consumed within the province can be looked as saying “you can not export it” and if exporting is a matter of extra-provincial then really there is not a problem.  By the feds saying they could only sell in certain places they are asserting their power. Crt said that needing a licence was part of a regulatory scheme and as such the feds could prohibit import of all oil and gas. The Crt also told the prov that they could not interfere. The scheme could be saved if it proved to be serving a legitimate purpose. Saved if proved to be w/in Branch I of 60

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Parsons. Although the P+S appears to be prov., if you look at the purpose then the P+S becomes extra-provincial T+C. Ratio: Because the federal interference was part of a scheme it was okay. A scheme that interferes w/ intra-provincial T+C can be upheld if the impact on local T+C was INTEGRAL to the scheme. W/out the interference the whole scheme would fail. Comments:  Differs from eggs and hogs case because there the leg aimed to control products when outside of the province. Here the legislation deals with the control of products once in the province of destination.  The import of goods doesn’t mean it’s under Parliament’s control. If something was coming into the province and then exported and there was some effort to favour processors in a province over others would make the legislation suspect – because it aims to restrict and control products outside of the province.  Once goods are imported they may be under control of federal or provincial government depending on what happens with the products.  Oil company argues: that it is not valid for the NEB to regulate a matter within the province (not the federal government’s jurisdiction)  Court says ancilliary powers doctrine applies

Dominion Stores Ltd. v. The Queen, [1980] 1 SCR 844
FACTS: Dominion Stores was selling bruised Spartan apples using the trade name ‘Canada Extra Fancy’, even though they didn’t meet the standard for use that grade name as required by federal law. Dominion was charged as part of Canada Agricultural Products Standards Act (CAPSA), even though that provision was voluntary. The mandatory provisions of CAPSA applied only to agricultural products that moved in interprovincial and international trade. Wholly interprovincial sales could be caught by the law only if the seller voluntarily chose to use the trade name. As Dominion chose to sell apples within ON graded ‘Canada Extra Fancy’, they were caught by the voluntary provisions and so had to satisfy federal standards. Further complicating the issue, the federal law mirrored the requirements of an existing ON law. ISSUES: Were the regulations ultra vires federal power under s. 91(2)? HOLDING: Court held for appellants, ruling 5 to 4 that the federal law was ultra vires. REASONING: Characterizing purpose and effects of the law: law was designed to uphold standards nation-wide. However, Dominion apples were only grown and sold w/in ON. Classify leading feature to most appropriate head of power: Estey CB 389: “I approach the issue raised in the appeal on the basis that the Parliament of Canada may not, in the guise of regulating trade and commerce, reach into the fields allocated to the provinces by 92(13) and 26 and regulate trading transactions occurring entirely w/in the provinces.” Estey preferred that only provincial law regulate intraprovincial sales: “…the federal statute is inapplicable to the local trade here in question.” No use of ‘double aspect’ yet – the court is explicit that there cannot be co-existing regulations (although the dissent, led by Laskin, opens the door to federal regulations that ‘complement those provisions’ – Multiple Access hadn’t happened yet, so there was no discussion of co-existing regulations) Note a key issue was that this was a voluntary scheme Estey suggested that the Privy Council had not properly interpreted s. 91(2) RATIO: Court rules against the federal gov’t and its attempt to use the Canada Extra Fancy label, which entailed a voluntary requirement to satisfy a federal standard. The voluntariness of the provision dooms it.

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Labatt Breweries of Can. Ltd. v. A.G. Can., [1980] 1 S.C.R. 91
FACTS: Labatt produced beer and called it “lite beer”; alcohol content was higher than specified in the Food and Drug Act. S. 6 created regulations. A regulation passed regulating the min/max alcohol content for beer marked “light beer.” ISSUE: Whether the regulation under S. 6 is ultra vires the Federal government. HOLDING: Ultra vires Federal government; beer is locally produced and consumed. REASONING: Pith and Substance: Beer is locally produce and consumed. It is a local industry so it is intra-provincial trade. General Trade and Commerce?: NO. Regulation of a single trade or industry is not permissible under General Trade and Commerce Branch. POGG?: NO, beer is not a matter of national concern. CC?: Health is a valid criminal purpose, but not shown to be applicable in this case. RATIO: Provisions or regulations dealing with local production and trade is ultra vires Federal government; it deals with specific industry operating in one province. Not part of general trade and commerce branch of S. 91(2). DISSENT: Laskin: S. 121 says Canada is an economic unity. Federal government needs to regulate national standards that govern across the country. S. 5(1) UPHELD: no person shall label, package, treat, process, sell or advertise any food in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety. • Challenged in R. v. Wetmore and rejected. S. 5(1) is concerned with trade as a whole.

General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641
FACTS: Combines Investigation Act S. 31.1 created a civil cause of action. ISSUE: Whether S. 31.1 is ultra vires Federal government. HOLDING: S. 31.1 is intra vires Federal government; functionally related. REASONING: Look at Act as a whole. There are 5 criteria (all do not need to be present except probably #3) to find that legislation is valid under General Trade and Commerce. Meets all the criteria. Competition is of a nation interest, therefore Federal government can regulate; all criteria indicate that the scheme of regulation is national in scope and that local regulation would be inadequate. All-over national policy is key to efficiency in the production of goods and services; competition cannot be effectively regulated unless it is regulated nationally. Failure to include one or more provinces or localities would jeopardize successful operation of the legislation in other parts of the country. RATIO: There are 5 criteria to find if legislation is part of General Trade and Commerce. Intraprovincial trade may be regulated by General Trade and Commerce if it is of a national interest; need to regulate at Federal level free flow of trade across provincial boarders; Canada is, for economic purposes, a single huge marketplace.

Kirkbi AG v. Ritvik Holdings Inc., [2005] 3 S.C.R. 302
FACTS: S. 7(b) of Trade-marks Act creates a civil cause of action for passing off. Court found that it covers both unregistered and registered trademarks. ISSUE: Whether the section is ultra vires the Federal government. HOLDING: S. 7(b) is intra vires. Functionally connected to the Act. Act valid under S. 91(2). However the cause of action did not succeed. The pattern was functional part of the item and not considered a trade-mark. REASONING: Purpose: Regulatory scheme for both registered and unregistered trade-marks; trademarks as a concept. General Trade: Met the 5 criteria set by GM. NEW: applies to the entire matter the Federal government is trying to regulate. Ancillary Powers: The tack on provision was low intrusive; it is just a remedial provision. The Act as whole was valid. The section meets the functionally connected test. 62

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RATIO: The 5 criteria set by GM are speaking to the importance of having federal regulation over the entire matter, rather than the provinces.

Reference re Securities Act (Can.), [2011] 3 S.C.R. 837
FACTS: The preamble of the Act said that it was to create a single Canadian securities regulator. “*S+. 9 states that the underlying purposes of the Act are to provide investor protection, to foster fair, efficient and competitive capital markets and to contribute to the integrity and stability of Canada’s financial system.” The Act is not mandatory; provinces have to opt in to it. ISSUES: Whether the Securities Act is ultra vires the Federal government based on s. 91(2) of the Constitution Act, 1867. HOLDING: The Act as a whole is ultra vires the federal government, but other options are available for cooperation between the provinces and the federal government. REASONING: Provinces have the power to regulate securities pursuant to s. 92(13). In Multiple Access Ltd. v. McCutcheon, per Dickson J. (as he then was), confirmed … “*that+ the provinces have the power, as a matter of property and civil rights, to regulate the trade in corporate securities in the province, provided the statute does not single out federal companies for special treatment or discriminate against them in any way….” S. 91(2) has been confined so as not to erode the powers of the provinces in other areas, such as s. 92(13). A federal head of power cannot be given a scope that would eviscerate a provincial legislative competence. Also, it encompasses the idea that the recognition of the diversity and autonomy of provincial governments in developing their societies within their respective spheres of jurisdiction (Quebec Secession). In Parsons the SCC found that 91(2) does not give the Federal government the right to regulate a particular trade. P & S: Thus, the main thrust of the Act is to regulate, on an exclusive basis, all aspects of securities trading in Canada, including the trades and occupations related to securities in each of the provinces. General Motors Test: (1) Is the law part of a general regulatory scheme? Yes (2) Is the scheme under the oversight of a regulatory agency? Yes (3) Is the law concerned with trade as a whole rather than with a particular industry? The Court accepts that the preservation of capital markets is a matter that goes beyond a particular industry. However, the Act reaches into regulating ALL aspects of securities, which has long been considered a provincial area of jurisdiction. (4) Is the scheme of such a nature that the provinces, acting alone or in concert, would be constitutionally incapable of enacting it? Can be met by the provinces by legislating in concert. (5) Would failure to include one or more provinces or localities in the scheme jeopardize its successful operation in other parts of the country? When it comes to genuine national goals, related to fair, efficient and competitive markets and the integrity and stability of Canada’s financial system, including national data collection and prevention of and response to systemic risks, the answer must be yes. But the voluntary nature of the Act suggests that having one or two provinces not participate would not be detrimental to the proposition. RATIO:

Proprietary Articles Trade Assn. v. A.G. Can., [1931] A.C. 310 (P.C.)
FACTS: CC S. 498 prohibited participation in an agreement to refrain from competition. The Dominion Combines Investigation Act was also challenged. ISSUE: Whether these pieces of legislation can be classified under S. 91(27). HOLDING: Yes, both were upheld under S. 91(27). REASONING: The CC provision was aimed at suppressing certain practices calculated, in the view of Parliament, to limit competition and produce the evil of high prices. A law under S. 91 (27) must

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have a prohibition and penalty, but must not be enacted through colourable language. These laws were aimed at preventing the lessening of competition and targeting the evil of high prices. RATIO: enough to incorporate new areas of criminal law. Laws that fit under 91(27) must include a prohibition and penalty (requirements of form) but cannot be enacted through colourable language. Criminal does not have to carry some moral taint. NOTE:  Province can invoke penalty (but not criminal) by using 92(15): must add it to another 92 power Regulatory penalty (Roncarelli was an abuse of this power - prov. went too far)  They regulate that which is contrary to the public interest.) PATA gives a very broad meaning to criminal law - allows it to interfere w/ 92(13)

Ref. Re s.5(a) of The Dairy Industry Act (Margarine Reference), [1949]
FACTS: Dairy Industry Act S. 5(a): No person shall manufacture, import into Canada or offer, sell or have in his possession for sale, any … substitute for butter, manufactured wholly or in part from any fat other than that of milk or cream. ISSUE: Whether S. 5(a) of Dairy Industry Act is ultra vires the Federal Government. HOLDING: Yes, it is ultra vires the Federal Government (except for importing goods). REASONING: It was argued that the provision was within federal jurisdiction as being in relation to criminal law. Proprietary Articles Trade Association v. Attorney General for Canada (57) was cited for its broad definition of criminal law as involving acts prohibited by the state. However, it was necessary to examine that definition in the context of the legislation under consideration. An act would be prohibited by legislation for the purpose of addressing "some evil or injurious or undesirable effect upon the public."  P+S: o Characterization: The object of the legislation in this case was seen not to relate to any purpose such as public peace, order, security, health or morality which would tend to support it as being in relation to criminal law. The objective was to give trade protection to the dairy industry through the regulation of manufacturing and selling of margarine (outlawing certain practices that create competition). There is a prohibition and a penalty. o Classification: s.92(13)—Insofar as the legislation restricted competitors of the dairy industry from manufacturing or selling the prohibited products in the provinces, it directly affected civil rights in the provinces – and therefore the legislation is an encroachment on provincial jurisdiction. (Legislation would have been valid had it restricted to a prohibition on the importation of oleomargarine.)  Holding: The Act was ultra vires and did not become intra vires through the creation of offences and penalties. The argument would have had more weight if the purpose of the legislation was to prohibit substances injurious to health.  However, that portion of the section which prohibited importation was valid. Importation was a matter of external trade, and therefore within the legislative authority of Parliament rather than the provinces.  Cannot be saved by s.91(2)—regulates the production and not just the inter-provincial movements… more of an intra-provincial matter RATIO: This case adds that there needs to be a criminal purpose in addition to a prohibition and penalty (substance). To forbid manufacture and sale for such end is a regulation of intra-provincial trade S. 92(13). OBITER – Criminal Purposes (not exhaustive): public peace, order, security, health, morality. • Issues that have a national dimension. • Helps to ensure that Legislature is making laws about some evil conduct instead of an invasion of provincial powers. 64

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R. V. Malmo – Levine SCC upheld Federal ability to make something criminal based on morality/health. Also, the protection of vulnerable groups. Court would not deal with the question of whether marijuana is contrary to Canadian morality. The court said that was something for the government to decide.

RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199
FACTS: Tobacco Control Act S. 3: outlined the purpose of the Act overall as dealing with the national issue of public health and said that the Act would protect the health of Canadians and enhance public awareness of the hazards of smoking. ISSUE: Whether S. 3 of Tobacco Control Act was ultra vires Federal Government. HOLDING: Majority said that S. 3 was within Federal jurisdiction. REASONING: There is a prohibition and penalty and a criminal law purpose (health; safeguard public form injurious or undesirable effects of tobacco). Don’t want to prohibit the evil directly, that was bad last time; bad government move! There are exemptions and appears regulatory in nature, however is has been long established that the criminal law may validity contain exceptions for certain conduct without losing its status as criminal. The criminal law power to legislate with respect to dangerous goods also encompasses the power to legislate with respect to health warnings on dangerous goods. DISSENT: The exceptions do not follow; allow advertising from other countries still encourages the sale of the type of product. It is too broad of an exception. Broadly based exemptions may lead court to conclude the conduct is not truly criminal; broad exemptions may take away from the efficacy of the law. RATIO: Prohibitions can have exceptions and can indirectly prohibiting an evil is acceptable, however, how indirect is not defined. CLASS NOTES • Victim compensation provisions -> usually seen as civil legislation, but if they are closely connected to the criminal scheme, then it will be permissible (p. 432 Zelinski)

R. v. Hydro-Quebec, [1997] 3 S.C.R. 213
FACTS: Canadian Environmental Protection Act S. 34 & 35: dealt with movement of substances in and out of the environment. Substances could be currently or potentially harmful. There were 4 categories of substances and there were mechanisms in place to help classify each of them. ISSUE: Whether the sections were valid under S. 91(27). HOLDING: Yes (5:4 split), valid Federal legislation. REASONING: Unanimous that criminal law purposes need to serve some public purpose and environmental protection can be added to that list. The sections are procedural, but that is important for determining what is prohibited. Leaving the environment solely to the provinces under S. 92(13) would exclude Parliament from their environmental leadership role in the international community and in protecting Canadian values. DISSENT: Procedures leave too much room for discretion; difficult to know if your conduct is going to be criminal (lack of fair notice). It’s more regulatory than prohibit. The more elaborate the scheme, the more likely it’s regulatory. RATIO: The environment is a valid criminal purpose. Procedural sections can be valid.

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783
FACTS: Firearms Act: established a licensing system for the possession and use of firearms; a national registry was also established. Alberta challenged the law by reference to the Alberta Court of Appeal. ISSUE: Whether the scheme was regulatory rather than criminal legislation. HOLDING: Yes, regulatory but that was secondary to the criminal law purpose. Valid legislation.

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REASONING: Courts say that guns are dangerous objects and therefore permissible for the Federal government to legislate in relation to for the safety, security and public order of Canadians. Valid for federal government to legislate because it’s a dangerous item. It’s not just any property, like a car. This case confirms Hydro Quebec; pursue criminal purpose by indirect regulation. RATIO: If regulatory aspects are secondary to a primary criminal law purpose, law fits under S. 91(27). Complexity does not necessarily detract from criminal law nature of legislation. Issue: Whether the licensing and registration provisions of the FA constitute a valid federal enactment under s.92(27) or POGG (National Concern Branch). Reasoning: Characterization: in relation to protection of public safety through the licensing and registration of firearms (discovered through look at extrinsic evidence and mischief analysis) Classification: s.91(27) or the national concern branch of POGG s.91(27): Is there a prohibition and penalty and criminal public purpose? Prohibits the possession of firearms that are not registered or where the owners have not obtained a license for the firearm. S. 15 FA and CCC outline penalties. The purpose is public safety (peace, order, security).
 AB government argues the legislation is regulatory not criminal in nature. Trying to tack on a

prohibition and penalty on the legislation to make it fit under s.91(27). The government isn’t prohibiting use of firearms, they are simply regulating firearms. Can’t compare to registration of vehicles because they are regulating the property of that subject matter where in this case they are regulating the public safety aspect, not firearms as property.  Government is permitted to use indirect means (regulation) in order to achieve their end goal public safety  Legislation contains exemptions and does not prohibit firearms outright…don’t have to make actual possession criminal, it is permissible for the fed government to use the criminal law indirectly… looking at the legislation the intent/purpose of the legislation was clear and doesn’t have to criminalize the conduct directly…  AB argued that the legislation won’t be effective regardless if they are registered. Court will not judge the wisdom of parliament or the efficacy of the legislation. The courts are concerned with whether or not the fed government can enact such legislation. If the legislation violated the Charter the courts would look at the effectiveness of the legislation, but not in a division of powers analysis.  Criminal is not necessarily co-extensive with a moral code so the fed government can create prohibitions of matters with no moral content (can also argue that firearms do have a moral content because they are used to commit crimes  S. 92(13) – the registration of property is a prov right/jurisdiction. This is really only an incidental effect on property and civil rights in the prov. The government’s power is broad in that area and this will happen.  Not the role of the courts to rule on the efficacy of the legislation; just to look at the constitutionality, not the wisdom of the law

Regulatory? Form? Purpose? 92(13) Is provincial law valid?

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Have to look to see if its something that the province should be dealing with in the first place, then see if it can be tacked on by the power given to it by 92(13). McNeil Open to the province under 92(13) and 92(16) to prevent crime Majority found it in relation to property and not crime Court will be looking for whether the province is creating a new crime, trying to control new conduct, or prevent crime, or attaching new civil consequences History of regulation – if province is trying to subvert what the federal government…

Reference Re Assisted Human Reproduction Act, [2010] 3 S.C.R. 457
FACTS: Assisted Human Reproduction Act: criminalized a series of technologies and activities relating to assisted reproduction (example – cloning, creating hybrids). ISSUE: Whether this is valid under S. 91(27). HOLDING: QC C.A. ruled that it was the safeguarding of health, not elimination of an “evil”. REASONING: Its effects: medical research, patient and doctor relationships and civil aspects of medically assisted human reproduction. It is to control the clinical and research aspects of a medical activity. A single piece of legislation applying to Canada as a whole and regulating a permitted and recognized activity is not a purpose that confers criminal law jurisdiction. Any new cutting edge medical procedure would be under Federal jurisdiction and that would be too much of an encroachment on provincial powers. RATIO: This Act lacks a criminal evil; aimed at regulation of health services and medical research.

Re Nova Scotia Bd. of Censors v. McNeil, [1978] 2 S.C.R. 662
FACTS: Theatre and Amusements Act: regulations established a system of licensing and regulation of the showing of films. Censor board had power to permit or prohibit the showing of films. Scheme prohibited theatres from showing films that were not approved and the penalty was a fine and revocation of licence. ISSUE: Whether the legislation is intra vires the Provincial government. HOLDING: Yes, under S. 92(13). REASONING: Morality is something that is usually thought to be criminal power. This legislation also contains a prohibition and penalty. However, the aim is the control and regulation of the film industry; property and civil rights, regulation of trade. It is preventative rather than penal (prohibitions and penalties are to enforce compliance); provincial governments can pass laws to prevent crime (Bedard v. Dawson). Morality can be regulated at a local level under S. 92(16) because morality may differ from region to region. DISSENT: criminal law. RATIO: Provinces may legislate in relation to morality; morality and criminality are not co-extensive. Just because the province is regulating aspects of morality does not mean that it is criminal law. S. 92(16) must be anchored in another provincial head of power.

Westendorp v. The Queen, [1983] 1 S.C.R. 43
FACTS: Π was charged with being on a street for the purpose of prostitution in contravention with Calgary bylaw S. 6.1(2): no person shall be or remain on a street for the purpose of prostitution. Penalty for breaching include fine or imprisonment. ISSUE: Whether the bylaw is valid under provincial power. HOLDING: No, encroaches on S. 91(27); invalid legislation. REASONING: Legislative history suggested that bylaw was tacked on because city was unhappy with Federal prostitution laws. The city’s purpose (to control congregation on streets to protect public) was seen to be colourable. Court found that purpose was a blatant attempt to control or punish prostitution. 67

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RATIO: If provinces are allowed to directly attack a criminal behaviour through reliance on public nuisance, it will be open for them to attack other criminal behaviour. TEST FOR PROVINCIAL “CRIMINAL LAW” POWER 1. Are there penalties directly aimed at the activity in question? (ultra vires) 2. Are there penalties indirectly aimed at the activity in question? (intra vires) 3. Is the purpose of the law punitive? (ultra vires) 4. Is the purpose of the law preventative? (intra vires) 5. Does the law specifically target behaviour recognized as criminal (civil remedies are allowed).

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