6 November - 12 November

POGG Current understanding: POGG = residual power; s. 91= enumerated + POGG power

Canadian Constitutional Law, 295-323

In Johannesson v. Rural Municipality of West St. Paul, a case involving a challenge to a municipal by-law controlling the location of airports, the majority of the court referred to the doctrine as supporting exclusive federal legislative jurisdiction with respect to the whole field of aeronautics.
it would be intolerable that such a national purpose might be defeated by a rural municipality, the Council of which decided that the noise attendant on the operation of airplanes was objectionable.

In Munro v. National Capital Commission on the basis of the federal peace, order, and good government power. The Act created a National Capital Commission to prepare plans for and assist in the development, conservation and improvement of the National Capital Region in order that the nature and character of the seat of the overnment of Canada may be in accordance with its national significance.! Laskin: believed that the opening words of section "#, the peace, order and good government! clause, constituted the general power,! while the enumerated powers in section "# were illustrative only. This approach had not been adopted by the $rivy Council, which had given primacy to the enumerated powers and relegated the opening words to a residuary posi% tion. In contrast to rivy !ouncil"s territorial# or boundary driven approach, Laskin felt that a court should focus on the object or purpose of legislation, asking whether the law had a federal or provincial $aspect,# with the result that concrete subjects like the wheat trade, for example, might be regulated by both levels of government%albeit from different as- pects as permitted by the classes of law-making powers set out in sections &' and &( of the constitution. )eet*: +hile Laskin espoused a view of federalism that favoured the existence of a strong central government and called for flexibility in the interpretation of the constitution, )eet* seemed to search for principles and rules to confine the exercise of judicial discretion. In contrast to the functional approach to inter- pretation espoused by Laskin ,which seemed to lend itself to the expansion of the central power-, )eet* preferred a more conceptual approach to the interpreta tion of the constitution which would preserve exclusive areas of jurisdiction for both levels of government. ... In an interesting footnote, )eet* expressed his personal opinion that the rivy !ouncil.s interpretation was correct, given the contradictions of the text. /e explained that the federal enumerated powers must be of primary importance in interpretation in order to limit the reach of the provincial powers.

Quebec P of V

Instead, in 0uebec, there has been a preference for analytical juris- prudence, with concentration on the development of concepts, rather than a functional or relativist approach . !ontrol over education was import- ant to the province of 0uebec in order to protect its religious, linguistic and cultural tra- dition, while civil law was felt to be intimately connected with individual capacity to act. 1nce these areas of jurisdiction were designated for provincial governments, it became important, from a 0ue2be2cois point of view, that the constitution be interpreted in a man- ner sympathetic to provincial competence. 3eference re 4nti-Inflation 4ct applied to private sector firms with more than 566 employees, members of designated professions, construction firms with more than (6 employees, and other private sector firms declared to be of strategic importance to the scheme. 7he 4ct was also binding on the federal public sector, but applicable to the public sector of each province only if an agreement was made between the federal government and the government of the province.
Ontario made an agreement w/ fed that court said wasnt valid.

8even judges ,the !hief 9ustice, 9udson, 8pence, :ickson, 3itchie, ;artland, and igeon 99- held that the 4ct was supportable under the p.o.g.g. power as emergency or $crisis# legislation, while two ,)eet* and de <randpre2 99- held it was not. =ive ,3itchie, ;artland, igeon, )eet*, and de <randpre2 99- held that it was, rejecting a national dimen- sions argument> four ,Laskin !9!, 9udson, 8pence, and :ickson 99- left open the ?ues- tions of whether the legislation was supportable under the national ,concern- dimensions test. raised four main issues: ,'- :id the Anti-Inflation Act itself belie the federal contention because of the form of the 4ct and, in particular, because of the exclusion of the provincial public sector from its imperative scope, notwithstanding that it is framed as a temporary measure albeit subject to extension of its operation@ ,(- Is the federal con- tention assisted by the preamble to the statute@ ,A- :oes the extrinsic evidence put before the !ourt, and other matters of which the !ourt can take judicial notice without extrin- sic material to back it up, show that there was a rational basis for the 4ct as a crisis meas- ure@ ,B- Is it a tenable argument that exceptional character could be lent to the legislation as rising beyond local or provincial concerns because arliament could reasonably take the view that it was a necessary measure to fortify action in other related areas of admit- tedly federal authority, such as that of monetary policy@ In my opinion, this !ourt would be unjustified in concluding, on the submissions in this case and on all the material put before it, that the arliament of !anada did not have a rational basis for regarding the Anti-Inflation Act as a measure which, in its judgment, was temporarily necessary to meet a situation of economic crisis imperilling the wellbeing of the people of !anada as a whole and re?uiring arliament.s stern intervention in the interests of the country as a whole. 7hat there may have been other periods of cri- sis in which no similar action was taken is beside the point. In enacting the Anti-Inflation Act as a measure for the peace, order and good government of !anada, arliament is not opening an area of legislative authority which would otherwise have no anchorage at all in the federal catalogue of legislative powers

but, rather, it is proceeding from legislative power bases which entitle it to wage war on inflation through monetary and fiscal policies and entitle it to embrace within the Anti- Inflation Act some of the sectors covered thereby but not all. 7he circumstances recount- ed above justify it in invoking its general power to extend its embrace as it has done. 7he fact that there had been rising inflation at the time federal action was taken, that inflation is regarded as a mone- tary phenomenon and that monetary policy is admittedly within exclusive federal juris- diction persuades me that the arliament of !anada was entitled, in the circumstances then prevailing and to which I have already referred, to act as it did from the springboard of its jurisdiction over monetary policy and, I venture to add, with additional support from its power in relation to the regulation of trade and commerce.
)CC7D 9 ,de <randpre2 9 concurring- dissent

If the first submission is to be accepted, then it must be conceded that the AntiInflation Act could be compellingly extended to the provincial public sector. 'st submission fails )efore I deal with this second submission I should state at the outset that I am prepared to assume the validity of the following propositions: the power of $arliament under the national emergency doctrine is not confined to war situations or to situations of transition from war to peace& an emergency of the nature contemplated by the doctrine may arise in peace time& inflation may constitute such an emergency& $arliament may validly e'ercise its national emergency powers before an emergen% cy actually occurs& a state of apprehended emergency or crisis suffices to justify $arliament in ta(ing preventive measures including measures to contain and re% duce inflation where inflation amounts to state of apprehended crisis. )ut I do not agree that inflation is the subject-matter of the 4ct. In order to characteri*e an enactment, one must look at its operation, at its ef- fects and at the scale of its effects rather than at its ultimate purpose where the purpose is practically all-embracing. 8imilarly, the Anti-Inflation Act is, as its preamble states, clearly a law relating to the control of profit margins, prices, dividends and compensation, that is, with respect to the provincial private sector, a law relating to the regulation of local trade, to contract and to property and civil rights in the rovinces, enacted as part of a programme to combat inflation. 7he Anti-Inflation Act is in my opinion ultra vires of arliament in so far at least as it applies to the provincial private sector> but severability having not been pleaded by coun- sel for !anada, I would declare the 4ct ultra vires of arliament in whole.

Small Group 8 POGG What are the requirements for finding that a law falls under the POGG emergency power? What does temporary mean? What guidance is available in the cases? Where do you think the limits of temporariness should fall and why? What is the significance of the Emergencies Act (R.S.C., 1985, c. 22 (4th Supp.) to any invocation of the POGG emergency power?