Re Secession

Four principles of federalism, democracy, constitutionalism, and protection of minorities can be

relied upon as hard law in legal arguments. Quebec cannot secede unilaterally. For secession
to occur, there must be a clear vote on a clear question to secede in a referendum. A majority
voting yes to secession would lead to a duty for Canada to negotiate in good faith for a
secession.
———
Judicial Review — preservation of tradition vs. adaptation
• Tension between judiciary (interpreter of legislation) and government (democratic reps)
• Problems:
• Accountability — judges are not elected, but can interfere with legislation created by reps
• Appointment by government could affect how they rule
• Particular lens — judges tend to be from a similar social and economic class
• Positives:
• institutional insulation of judges — free from external pressure
• Judicial Independence
• not tied to political party
• constrained to act impartially and follow precedent
• JCPC overruling the SCC = Canada not fully sovereign yet

Persons case (1928, SCC)

s.24 BNA Act — “qualified persons”
“persons” includes women but “qualified persons” does not, because of the legal incapacities
of women.

Edwards v. AG Canada (1930, PC)

Internal coherence, including use of the specific word “male” in other provisions of the BNA
Act, led the JCPC to believe that “qualified persons” did include women, otherwise the drafters
of the BNA Act could have specified that only males could be appointed to the Senate in s.23.

BNA Act is a “living tree capable of growth and expansion within its natural limits” and must be
interpreted by the same methods as other statutes.

R. Elliot article, CLG 41-42

Types of Argumentation: Historical, Textual, Structural, Prudential, Doctrinal, Ethical

Charlottetown Accord, 1992 included major reforms to the Senate. Senate was originally
created to protect regional interests, rather than elected by population like the HoC. Never
really worked in Canada, political parties are deeply critical.
———
Judicial Independence
• Appointed, not elected (s.92(4)/CA, 1867, s.96)
• Removable by GG before retirement at age 75 on recommendation of the HoC and Senate
• salaries/benefits paid by Parliament
• Quebec judges always to be appointed from Quebec
• s.101: Parliament may create and maintain a general Court of Appeal for Canada
• 1875: established SCC and Exchequer Court, now Federal Court

Re Supreme Court Act (2014) ***

Facts
s.6 of the SCA provides that three SCC judges must be appointed from Quebec. s.5 sets out
requirements for general appointments, s.6 more restrictive.

Issue: Can someone who has ten years standing but is not a current member of the barreau
be appointed?

Decision
s.6 narrows the scope of people who may be appointed. The two sections must be read
together. The federal government cannot amend the Supreme Court Act even though it is not
listed as part of the constitution — the amending formula mentions the composition of the
SCC, so the SCC cannot be changed without a constitutional amendment. Therefore, this Act
must be given a constitutional interpretation.

“Empty vessels” — constitutional references only apply when SCC becomes constitutionalized

Moldaver J, dissent:
———
Prior Legal Orders (notes p.8)
• Aboriginal law — oral and unwritten, customary rather than enacted by a supreme authority
• Europeans viewed Aboriginal nations as insufficiently Christian and civilized, so they did not
constitute “a legal unit”, assuming them to be a lawless society.
• This is contradicted by the fact that they still made treaties with the Aboriginal nations as
though they did have a legal system.
• “Indian policy” allowed for some self-government, which inspired the treaties
• Europeans justified land claims using the doctrine of terra nullius, which meant sovereignty
could be acquired upon discovery.
• Neither conquest nor cession was necessary to transfer sovereignty to European powers
because North America was treated as vacant.
• France was the first to establish a colony

Motives for Confederation

• Threat of US invasion
• Federalism model attractive — room for expansion
• Protection for French Canadians, who would soon become a minority

• BNA Act prevailed if any colonial statute conflicted with it, because it was an Imperial statute.
• Constitution Act, 1982, s.52(1): The Constitution is the supreme law of Canada
• Our constitution is very technical — a framework to be filled by politics. It organizes separate
political entities into a mutually agreed upon country.
———
Evolution of the Division of Powers
• concept of “exhaustiveness” between ss.91 and 92
• exclusivity

Parsons (1881, PC)

Approach to division of powers:
“It could not have been the intention that a conflict should exist; and, in order to prevent such a
result, the two sections must be read together, and the language of one interpreted, and,
where necessary, modified, by that of the other.” (CLG p.100)

Start of an ongoing discussion about federalism. See notes p.12 for SCC and PC decision.

Trade and Commerce

Section 91(2) is limited and interpreted to mean that the federal government only has
jurisdiction over:
1. International trade
2. Interprovincial trade
3. Trade affecting the whole country

On Quebec
• This case is cited as authority for the proposition that jurisdiction over property and civil rights
went to the provinces because of Quebec.
• Contract law could not be regulated by Parliament because that would encroach on
Quebec’s right to recognize civil law as their legal system.
• Contract law is thus a provincial matter.
• Parsons recognizes the need to protect the political agreement that preserved Quebec’s
jurisdiction over property and civil rights

This is the first in a long series of decisions upholding provincial jurisdiction over insurance.

Prohibition, Temperance, and Liquor

Russell (1882, PC)
• Temperance and prohibition are matters of national concern and therefore federal.
• This case stands for the principle that big, serious concerns are federal.
• The vice struck at in this case does not exist only in one province. The local option only
localizes the subject and scope of the Act; provision for special application of it does not alter
its character.
• Parsons test: since this does not fall under any of the heads of power in s.92, it must be a
federal power.
Note that the case failed to identify the source of federal power.

Hodge (1893, JCPC) notes p.15

Double aspect doctrine: “subjects which in one aspect and for one purpose fall within s.92 may
in another aspect and for another purpose fall within s.91.” (CLG, p.108, quote by Lord
Fitzgerald)

The Act is confined to operation in Ontario, entirely local and does not interfere with general
regulation of trade and commerce, therefore there is no conflict with Dominion powers.
The Dominion and the provinces are equal in kind, and each supreme within their spheres.

Prohibition Reference (1896, JCPC)

POGG: alcohol was considered to have ceased to be a local matter and became a matter of
national concern, thus bringing it under federal jurisdiction.

The Ontario Legislature had jurisdiction to enact the provision, but the provision was
inoperative in any district of the province which had opted into the Canadian Temperance Act
under the doctrine of federal paramountcy.
———
Depression and the New Deal
Cases now deal with matters that did not exist in 1867 and were outside the scope of the
constitutional drafters, eg. technology, international conventions

New kind of challenge: The Great Depression

• Looked to residual power of federal government
• May be of national concern under POGG

Proprietary Articles Trade Association v. AG Canada (1931, PC)

• Reference to determine whether the Combines Investigation Act and s.498 of the Criminal
Code were valid.
• Issue: Scope of criminal law
• Not as obvious as it is today that the federal government can make new crimes
• The criminal law is not confined to what is criminal in England or what was criminal at the
time of Confederation.
• “living tree” principle applied to the division of powers
• Dominion has power over all criminal law, and this extends to legislation to make new
crimes regardless of who has power of the specific nature of the crime under s.91 or s.92.

Ratio: Parliament has supreme authority over criminal law, and this extends to the power to
make new crimes regardless of who has power over the specific nature of the crime under s.91
or 92.

Re Aeronautics (1932, PC)

Facts: A convention about aeronautics was made after WWI, which Great Britain signed.
Canadian Parliament enacted legislation implementing the convention and regulating
aeronautics including licensing, navigation, and safety. Reference to determine validity of
legislation.

Decision: Aeronautics is generally a subject for the provinces if air travel is local, but the
Dominion has overarching authority (though not exclusive) to implement the convention under
s.132.

Ratio: Parliament has the right to legislate on subjects that affect the whole of Canada. If there
is no mention of the subject in either s.91 or s.92, the power automatically falls to Parliament.

Re Radio Communication (1932, PC)

Facts: In the late 20s, the Dominion government entered into international agreements about
radio and enacted legislation to implement them.

Decision: Authority under POGG to enact legislation regarding radio.

Ratio: By virtue of Canada’s recognition on the international stage, Canada can enter
international treaties under s.132 if the subject matter is under s.91.

Great Depression — think about social and economic context

Labour Conventions (1937, PC)

Facts: Reference about statutes setting work regulations, which arose from several League of
Nations conventions. The Dominion relied on s.132, the provinces opposed use of this to
legislate about subjects covered under s.92. The SCC split and the treaty power was the
dominant issue - national concern, or property and civil rights? Radio and Aeronautics
references relied on.

Decision: SCC split. Appeal to the PC. Invalid legislation.

Ratio: If an international treaty requires the enactment of legislation for it to take effect, the
provinces will implement the legislation if the subject matter of the legislation falls under s.92.

“While the ship of state now sails on larger ventures and into foreign waters she still retains the
watertight compartments which are an essential part of her original structure.” (CLG p.175)

Employment and Social Insurance Act (1937, PC)

Facts: Act provided for insurance against unemployment for workers. Subject had been
included in international conventions but Bennet did not make the Act an explicit
implementation, because he didn’t want to remind Canadians that relief assistance was similar
to unemployment insurance in the Conventions.

Decision: Invalid legislation (ultra vires)

Ratio: “If on the true view of the legislation it is found that in reality in pith and substance the
legislation invades civil rights within the Province, or in respect of other classes of subjects
otherwise encroaches upon the provincial field, the legislation will be invalid.” — Lord Atkin

Natural Products Marketing Act (1937, PC)

Facts: Act was to regulate natural products to benefit producers, to establish effective
marketing arrangements, and to impose pooling to equalize prices. Limited to products for
which the principal market was outside province of production, and some exported products.

Decision: Invalid legislation.

Ratio: As far as enactments relate to local and provincial matters, they are beyond
Parliament’s jurisdiction. Dominion and Provincial legislation may be combined to create
complete power of regulation, but it must be carefully framed such that no party leaves its
sphere and encroaches on the other.
Major constitutional scholars of the 30s: Vincent Macdonald, WPM Kennedy, Frank Scott
• New way of reasoning: when text is insufficient, look to history and current social needs
• Scholars read the BNA Act as local matters to provinces, everything else to the Dominion,
the enumerations in s.91 are just examples and the POGG clause was the only source of
power

WPM Kennedy: Must abolish BNA Act and rewrite constitution, abolish all appeals to JCPC

Scott: federal government has no power to make legislation regarding employment and cannot
be supported by all provinces = government is unable to direct and control economic
development
• worried about the Marketing Act, since ten legislatures were unanimously in support, but it
was declared ultra vires
• co-operation between Dominion and provinces is useless because courts can set it aside
based on one little slip, even if other legislation can rectify the mistake

O’Connor: two grand divisions, general and local

• s.92 15 sections to provinces and 16 to residual local subjects,
• 91 to Dominion, exclusive power
• notwithstanding clause “and for greater certainty” to extend exclusivity to enumerations
• deeming clause “and any matter” to exclude from s.92(16) any local element of enumerated
subjects
• this design, though, was repealed by judicial legislation, PC guilty of demonstrable error

******* page numbers for these

———
Pith and Substance
Three types of arguments:
1. Challenge the validity of a statute
• on the grounds that in its dominant characteristic/pith and substance it is beyond the
jurisdiction of the legislation
• did the government have the power to enact that law?
• if no, held to be of no force and effect
• legal doctrines: pith and substance, double aspect/ancillary
• P&S: identify the matter of the statute using purpose and effect (Morgentaler), scope of the
competing classes, then determine the class where the statute falls (Parsons)
• purpose: what is the mischief the statute is meant to address?
• effect: how does the statute change the rights and interests of people affected by it?
• try to keep them analytically separate
• remember — scope is based on classes of subjects, not facts, people, activities

2. Limiting the applicability of valid statutes

• even if statute is within the statute’s jurisdiction, may be argued that it is inapplicable to the
situation because it would encroach on the other government’s jurisdiction
• interjurisdictional immunity doctrine
• does the provincial law impair the federal exercise of some core competency?
• if yes, law will be “read down” to not apply to the matter
• goes against the trend of constitutional interpretation — can result in “legal vacuums”
• Look at heads of power:
 • POGG, criminal law power, provincial powers over health, property and civil rights, local
matters, regulation of environment
• POGG rooted in opening words of s.91 — “residual” power
• gap
• national concern — either new matters or matters that have shifted so they have become
of national concern, or provincial failure
• emergency — must have rational basis for preceding on the assumption that there is an
emergency
• temporary power
• Criminal law
• provincial authority can make laws relating to criminal law because they regulate public
order or morality
• federal power requires form and substance
• form: traditionally prohibition with a penalty
• regulatory nature not fatal to it being criminal law
• criminal law purpose, i.e. public peace, security, health, morality, protection of the
environment
• overlap has been allowed, principle of cooperative federalism
• administration of justice
• provincial under s.92(14)
• Trial Lawyers: may be constrained by s.96
• unwritten principle of rule of law can help
• usually goes with something else

3. Limiting the operability of provincial statutes

• even if a provincial law is valid it will be inoperative if it conflicts with a federal statute
• doctrine of federal paramountcy = federal law will prevail
• express conflict, or
• provincial law might frustrate federal purpose

Morgentaler (1993, SCC)

Facts
• 1988: SCC struck down provisions in CC regulating abortion
• NS passed laws stating that performing abortions outside hospitals is an offence punishable
by fine ($10,000-50,000), denied insurance coverage for that procedure
• Dr. Morgentaler opened a free standing abortion clinic and was charged with violating 14
counts of the Medical Services Act

Issue: Is the Medical Services Act ultra vires the province’s jurisdiction on the grounds that it is
criminal law?

Decision
“…whether NS has…regulated the place for delivery of a medical service with a view to
controlling the quality and nature of its health care delivery system, or has attempted to prohibit
the performance of abortions outside hospitals with a view to suppressing or punishing what it
perceives to be the socially undesirable conduct of abortion. The former would place the
legislation within provincial competence; the latter would make it criminal law.” —Sopinka J.

Purpose and Effect

• Legislative history eg. Hansard not given much weight, may be convincing people to vote for
it rather than outlining the purpose
• 91(27) jurisdiction over criminal law, or s.92 hospitals, medical profession, matters of health
• dispute whether in p&s this is an attempt by NS to prohibit abortion
• two possibilities: both true, but question of which applies better

Four types of evidence the court looks at:

1. Legal effect
- refusing public health care coverage = undesirable act
- consequence: prohibits certain procedures
- significant fines in place ($10,000-50,000)

2. Extrinsic factors (including duplication of CC provisions)

- similar language to deleted criminal code provisions
- possible to have overlapping language and still be within provincial jurisdiction

3. Course of events leading up to enactment

- legislators knew of Morgentaler’s intent to open the clinic
- no research into effect of privatization of healthcare

4. Provincial objectives
- no evidence of concerns about safety, health regulations

Pith and substance: prohibition of performance of abortion with penal consequences due to
socially undesirable consequences.

Provincial government does not have legislative authority to make such laws, therefore it is
invalid.

• Appellant contended that legislation was concerned with privatization, cost and quality of
health care, and policy of preventing a two-tier system of medical health care
• All of this is completely absent in Hansard
• Title of act, stated purpose, terms masked the real purpose of punishing the provision of
abortion services as a public evil

colourable: where the effects of the law suggest a purpose other than that which is stated
• not used here because there was no need for it
• most of the time, an argument regarding bad faith is unnecessary because you can prove it
other ways

Core Values
- community, functionality, democracy

Re Employment Insurance Act (2005, SCC)

———
Validity and Overlap

Double Aspect doctrine

“When the court considers that the federal and provincial features of the challenged rule are of
roughly equivalent importance so that neither should be ignored respecting the division of
powers, the decision is made that the challenged rule could be enacted by either the federal
Parliament or a provincial legislature.” (Lederman, CLG p.236)

Multiple Access Ltd. v. McCutcheon (1982, SCC)

Facts
• insider trading - argued Ontario Securities Act did not apply because trade regulation is
federal
• federally incorporated company
• if not that, doctrine of paramountcy: Ontario provisions invalid because federal law prevails
• advantageous: limitation period for action under federal statute had elapsed
• court relied on double aspect doctrine

Reasons
Dickson J
• must determine validity of federal legislation without regarding the Ontario legislation
• Ontario shareholders enjoy both provincial and federal protection but other provinces do not
• must uphold federal law
• pith and substance in isolation = trading
• pith and substance in context = company law
• obligations regarding owning shares in a fed co
• extends to shareholders, officers, employees = not within jurisdiction of provinces
• Parliament can legislate regarding incorporation, extends to other corporate matters
• fed and provincial legislation equal in importance

Held: neither interjurisdictional immunity nor federal paramountcy applies

—
Necessarily Incidental and Ancillary Powers doctrines
• P&S doctrine allows a law classified under one of ss.91 or 92 to have incidental or ancillary
effects on matters outside the competence of the enacting government
• Ancillary doctrine applies where a provision may appear to intrude on the other level of
government’s jurisdiction. The provision will be valid if the larger scheme of the legislation is
valid under the enacting body’s jurisdiction.
• They are not the same

General Motors v. City National Leasing (1989, SCC)

Facts
GM argued s.33.1 of Combines was beyond jurisdiction of Parliament because civil causes of
action fall within “property and civil rights”. Legislated prohibition on price fixing, affects civil
cause of remedy.

Takeaway
• consider how much the provision intrudes on the other jurisdiction **case by case
• overlap is expected, tests should not be strict
• pith and substance allows a law in one jurisdiction to have effects on laws in the other
jurisdiction
• question is whether a provision is sufficiently integrated into the Act to uphold its validity
Steps:
1. Does the provision intrude on provincial powers, and to what extent?
1.1. if no intrusion, the issue is whether the Act is valid
2. Is the Act or part of it valid?
3. Is the provision integrated with the scheme of the Act so that it can be upheld because of
that relationship?
a. consider the extent it encroaches on provincial powers

1. only a remedial provision (for breach of the rest of the law) with a limited scope, but the
federal govt is allowed to create rights of civil action if they are necessary
= limited encroachment
2. Is the Act valid? Yes
3. Is the provision functionally related to the objective of the legislation and the structure and
content of the scheme? Yes

Held: The provision is valid because the main characteristic is within the federal powers.

Approaches to Federalism
• classical approach: “watertight compartments”, no overlap allowed
• modern approach: prohibits each level of government from enacting laws that in their pith
and substance regulate matters in the other government’s jurisdiction

Quebec v. Lacombe (2010, SCC)

Facts
Zoning restrictions enacted by Quebec based on complaints about aviation.

Issue: Is the bylaw ultra vires the province, or are they invalid under the doctrine of
interjurisdictional immunity or federal paramountcy?

Takeaway
• IJI and FP not considered because it is ultra vires
• provision is insufficiently integrated to gain ancillary doctrine’s protection
• pith and substance: regulation of aeronautics
• stated purpose: to balance vacationers with commercial use of lake
• they did not make the ban apply only to vacation areas, it applies to entire municipality
• first principle of zoning law: treat similar parcels similarly
• this did not occur here
• no evidence that this by-law fills a gap in the bigger one, so it does not enhance the
legislation, therefore ancillary powers are not applicable

McLaughlin J: The ancillary powers doctrine is not to be confused with the incidental effects
rule. The ancillary powers doctrine applies where, as here, a provision is, in pith and
substance, outside the competence of its enacting body. The potentially invalid provision will
be saved where it is an important part of a broader legislative scheme that is within the
competence of the enacting body. The incidental effects rule, by contrast, applies when a
provision, in pith and substance, lies within the competence of the enacting body but touches
on a subject assigned to the other level of government. It holds that such a provision will not be
invalid merely because it has an incidental effect on a legislative competence that falls beyond
the jurisdiction of its enacting body. Mere incidental effects will not warrant the invocation of
ancillary powers.
———
Interjurisdictional Immunity
• Emphasizes exclusive jurisdiction — P&S, ancillary, double aspect doctrines allow overlap
• IJI: Law is invalid where it affects the core competence of federal law (i.e. a more than
incidental impact)
• usually invoked when a generally worded provincial law overlaps in some applications
• reading down: technique of interpretation where the words are interpreted to only apply within
the enacting government’s area of jurisdiction, often used with IJI

Canadian Western Bank (2007, SCC)

• Broad application of IJI inconsistent with other doctrines (which recognize that overlap is
unavoidable)
• IJI = despite the absence of legislation in one level, laws created by other level cannot affect
“core” of jurisdiction at all, even incidentally
• broad use of II could create too much centralization
• most often invoked to protect feds, “asymmetrical” application inconsistent with flexibility
required by federalism
• IJI should not be the first doctrine used in a division of powers dispute

Ratio: IJI should be only invoked when the “core” of the federal power is intruded upon.

Use P&S and federal paramountcy if at all possible. Consider level of intrusion on the “core” of
other power before invoking IJI. IJI should be limited to situations already covered by
precedent.

Canadian Owners and Pilots (2010, SCC)

Facts
Airstrip constructed in agricultural area, registered with federal office. S.26 of Act says the land
must be used for agriculture only unless permission obtained, which they did not. Challenging
order on grounds that s.26 is ultra vires, or inapplicable because it restricts where aerodromes
can be located, or inoperative because of conflict with a federal law.

Held: Interjurisdictional Immunity: the provincial law impairs federal jurisdiction of regulation of
aeronautics, determining location is core to federal powers, inapplicable in that it prohibits
aerodromes in agricultural zones

Reasons
• begins with P&S
• purpose: to preserve lands for agriculture, s.26 supports this
• effect: to prohibit non-agricultural uses of agriculture land
• valid provincial law, so now: Interjurisdictional Immunity
• 1. does it trench on core?
• 2. Unacceptable Interference?
• 3. Federal Paramountcy
• arises in two situations: where one legislation says yes and another says no (operational
conflict), or when two pieces of legislation are operating but the purposes of one are
incompatible with the other (frustration of purpose)
 • here, federal and provincial legislation could be complied with by destroying aerodrome,
so the other one applies - purposes compatible?
• permissive federal legislation is not sufficient to give a purpose so no federal
paramountcy applicable
• federal government would have to specifically create legislation for every private
aerodrome, to create a conflict where federal paramountcy would prevail = unreasonable

PHS Community Services (2011, SCC)

Facts
Insite safe injection facility. Government did not extend exemption.

Issue: Is the CDSA inapplicable to Insite because it is a health facility under the jurisdiction of
the province? Because the application of the criminal law would violate the Charter?

Held: No, CDSA is applicable.

Reasoning
• valid federal law with the incidental effect of regulating provincial health facilities
• argument that they cannot prohibit in a medical context, but this is a valid exercise of
criminal law power
• extension of IJI risks resulting in “legal vacuums” (Canadian Western Bank para 44), i.e.
zones where neither government can legislate
• delivery health care services is not a core of the provincial power over health care
• never been recognized
• overlapping federal power (criminal law, as in Morgentaler) and broad provincial power
make it impossible to find a core
• could create a legal vacuum: Parliament could not legislate on dangerous medical
procedures (eg. cloning, euthanasia), provincial leg may not choose to do so or may not
have the power

Paramountcy
• federal legislation trumps provincial in this case
• prohibitions are constitutionally valid and apply to Insite

(Court ordered Minister to renew the exemption under s.7 of the Charter)

Difference here and Morgentaler: both laws here are valid, but criminal law would affect this
law
Morgentaler, the question was whether the law itself was criminal law
———
Operability and Paramountcy

Doctrine of Federal Paramountcy (p.33): must be two valid laws that

1. Apply to the same facts
2. Are inconsistent with each other

Conflict = provincial law is inoperative to the extent of the conflict. If the federal legislation is
repealed, the conflict disappears and the provincial law is fully operative.

Ross v. Registrar of Motor Vehicles (1975, SCC)

Facts: Convicted of driving while impaired. Prohibited from driving for six months except to and
from work. Provincial Registrar suspended license under provincial legislation.

Issue: Was the provincial legislation valid? Was the federal legislation valid? Was there a
conflict?

Held: No conflict. Both laws are valid. Ross can fully comply with both laws by not driving to
work. Narrow interpretation of conflict.

Two ways to test for federal paramountcy:

1. Direct conflict or impossibility of dual compliance
2. Frustrating purpose of federal legislation

Multiple Access v. McCutcheon (1982, SCC)

No conflict in the sense that compliance with one would be breaching the other. Issue of
whether someone could be charged under both laws can be dealt with on a case-by-case
basis.

Ratio: Duplication without conflict is not sufficient to invoke the doctrine of paramountcy.

BMO v. Hall (1990, SCC)

Direct conflict between provincial and federal legislation, federal prevails. Argument based on
intent of federal law — if provincial provisions were allowed to operate, it would frustrate the
intent of the federal legislation (facilitating individuals’ access to credit).

The inquiry must focus on the “broader question whether operation of the provincial Act is
incompatible with the federal legislative purpose.” (CLG p.285)

Rothmans, Benson & Hedges v. Saskatchewan (2005, SCC)

Facts: Federal legislation allows for some display and advertising, provincial company bans all.

Issue: Is s.6 of the provincial legislation sufficiently inconsistent with s.30 of federal legislation
to render it inoperative pursuant to the doctrine of federal paramountcy?

Held: No. Dual compliance is possible.

———
POGG
Three branches:
1. Gap
• eg. s.132 international treaties through Britain
• just because something is new does not mean we should use the gap power — analysis
necessary. eg. Aeronautics

2. National Concern
• eg. Russell, Prohibition Reference — beyond local interests

3. Emergency
• temporary — if encroaching on provincial jurisdiction, the power reverts back to the
provinces after the emergency is over
• includes power to legislate to protect an emergency

If a matter goes beyond local or provincial concerns and is from its inherent nature a federal
matter, then it falls within POGG even if it touches on provincial jurisdiction.

Two approaches:
1. For greater certainty — Entire federal power is contained in POGG, s.91 is just a set of
examples. Laskin’s approach.
2. Residuary power approach — Items in s.91 are substantive grants of power and POGG is
treated as a separate item. Beetz’s approach, Québecois prefers emergency branch.

Re Anti-Inflation Act (1976, SCC) notes p.40

Upheld by the emergency branch of the POGG power. Dissent (Beetz) said it was national
concern.

Crown Zellerbach (1988, SCC)

Regulation of marine pollution held to fall under the national concern branch. N.C. doctrine
applies to new matters not contemplated by original Constitution Act AND matters under a
local or provincial head.

Ratio: To fall under the branch of national concern, a matter must have an element of
“singleness, distinctiveness, and indivisibility” that clearly distinguishes it from matters of
provincial concern. It must have a scale of impact on provincial jurisdiction that is reconcilable
with the distribution of legislative power under the Constitution.

In determining this, the Provincial Inability test can be helpful: Would provincial failure to deal
with intraprovincial aspects of the matter have an adverse effect on extra-provincial interests?
i.e. risk of inter-provincial non-cooperation = shift to federal power

Oldman River (1992, SCC)

Environment as a whole does not fit under “national concern”. Environment is a diffuse subject
— this idea comes from La Forest J’s dissent in Crown Zellerbach.

Ratio: Both levels of government can legislate with respect to the environment, but each within
their own categories enumerated by ss.91 and 92.
———
Criminal Law
Inherently divided jurisdiction — substance is federal under s.91(27), justice is provincial.
Margarine Reference (1949, SCC)
A public purpose pursuant to the criminal law power is necessary along with formal
requirements of prohibition and penalty for a law to be upheld under the federal criminal law
power.
eg. public peace, morality, order, security, health… This was for purpose of economics.

RJR Macdonald (1995, SCC)

Facts: Tobacco advertising.

Held: Intra vires

P&S here directed at public evil. Criminal law is not frozen in time and Parliament may create
new crimes. A circuitous path to accomplish goals is acceptable as long as the goals are
constitutionally valid (i.e. to protect Canadians from effects of tobacco consumption).

Dissent: Activity must constitute a significant, grave risk of harm to the public before it can fall
under the criminal power. Undesirable effects are insufficient. Act is too far removed from
injurious effects of tobacco use.

Hydro-Québec (1997)
Facts: violated interim order made by Minister of Environment regarding emissions of PCBs.
Claimed two sections of Environmental Protection Act were ultra vires.

Held: Intra vires

Decision: Prohibition & Penalty, valid criminal objective.

Re Firearms Act
P&S of law: to enhance public safety by controlling access to firearms through prohibitions and
penalties, therefore falls under the criminal law power. Regulatory aspects are secondary to
the criminal law purpose. Act does not hinder ability of the provinces to regulate property and
civil rights and therefore does not upset the balance of powers. Intra vires.

Re Assisted Human Reproduction Act (QBCA)

Purpose is the safeguarding of health and not the elimination of an “evil”. Assisted
reproduction practices being assigned to criminal law would reduce provincial jurisdiction of
health.

Ultra vires Parliament.

———
Provincial Power to Regulate Morality
1. Provincial legislatures have jurisdiction over justice in the province. Federal government
has delegated power to prosecute CC offences, making much of the CC provincially
enforced.
2. Federal government drafts criminal laws in ways that allow them to be shaped by the
provinces in order to respond to local conditions.
3. Provinces may have jurisdiction in matters that may also be the subject of criminal law.
A complex regulatory scheme does not necessarily make a piece of legislation criminal law.

Re NS Board of Censors v. McNeil (1978)

Facts
Censorship of films. Regulation said all films must be submitted to censorship board who had
essentially unfettered discretion. Breach of regulation = monetary penalty and revocation of a
theatre owner’s license. McNeil (journalist wanting to review the prohibited movie) challenged
law on public interest standing, concern about censorship.

Decision
Regulation, supervision and control of the film business within the Province = property and civil
rights. Pursuant to the regulation of property, one can regulate on the grounds of morality.
Preventative legislation, rather than penal.

(Dissent: Obviously criminal law. An offence = license cancellation. Court is allowing form to
mask substance)

Ratio: Just because something is connected to morality does not make it criminal law.

Westendorp (1983)
Facts: Charged with being on a street for the purpose of prostitution, in contravention of a
bylaw.

Decision: Bylaw struck down.

Wording is specifically regarding prostitutes rather than congregations of people on the street.
Obvious that this is criminal law as there is no mention of interference with private property. If
this was really related to control of the streets, it would have dealt with congregations of people
unrelated to what the obstructing persons say or do.

Allowing a province or municipality to enact laws relating to public nuisance would mean they
could enact laws on anything pursuant to the criminal law, eg. murder could be punishable by
a fine pursuant to a bylaw.

Chatterjee v. Ontario AG (2009)

Facts
Ontario Civil Remedies Act does not require proof that any particular person committed a
particular crime. Search of car incidental to arrest for breach of probation. Drug paraphernalia
that smelled of marijuana were found, but never charged with any offence relating to drugs.
Money was seized under the CRA. Legal action was in relation to the property and no action
was taken against the individual.

Issue: Is the Act constitutional?

Decision: Federalism analysis. P&S: look at intent. Preamble/purpose clause: designed to

prevent crime. Purpose is deterrence of crime and dealing with costs associated with crime.
Punitive effect because of forfeiture of property is an effect, but not a core purpose or effect of
this law.
———
Cooperative Federalism
Courts can respond in one of several ways if the division of powers is preventing legislatures
from making laws.
1. The constitution can be amended, e.g. Unemployment insurance went to the federal
government.
2. Judicial interpretation, eg. changing scope of the POGG power
3. Policy instruments. Not constitutional modifications or interpretations, but simply political
choices that different levels of government might make within that framework. This can look
like shifting or coordinating of jurisdictions.
a) Federal spending power
• The ability of the federal government to raise revenue and spend it in provincial
jurisdiction
• Comes in the form of a payment from the federal government to the provinces
• sometimes it’s a grant without conditions, sometimes a contribution to a shared cost
program, eg. giving to less well-off provinces for social services to be offered on an
equal footing throughout the country
• federal government has a presence in areas of provincial responsibility
• politically important initiatives arise
• public medical system exists because of the federal spending power
• can barter: we will give you this money if you sign on to this agreement (SCC held this
is constitutionally permissible)
b) Intergovernmental agreements
• Governments discuss a policy objective and agree to proceed in a certain way
• possible for national standards to be achieved in areas where the federal government
has no jurisdiction, eg. health, social welfare
• info on social insurance: notes p.51
Cooperative federalism comes up in economic regulation.

Whether the law is a good law or a constitutional law are different matters. The court only
considers whether it is constitutional.

Quebec AG v. Canada AG (2015) — Firearms Case

Facts
Parliament wouldn’t transfer gun registry information to Quebec, who wanted to make their
own long gun registry. A provision stated they would destroy the data. (notes p.52)

Issue: Is the federal law abolishing the long gun registry constitutional and can the federal
government give their data to Quebec?

Decision
Valid exercise of criminal law power. Cooperative federalism does not constrain the federal
government from destroying the data.
• Flexibility and cooperation do not override the division of powers.
• P&S analysis of s.29 authorizing destruction
• A law repealing an offence does not have the prohibitory and penalizing characteristics, but
the matter of the law is still criminal law because it deals with the same subject as the
provision it is repealing, i.e. if they can make criminal law they can repeal it.
• destruction of the data does not change the matter of the law

Dissent: Collection of data was a result of collaborating with the provinces. S.29 goes beyond
the purpose of repealing the law because it does not consider transferring the data to the
provinces, preventing them from using it in the exercise of their powers over property — this is
a significant encroachment on their powers. A partnership between federal and provincial
cannot be unilaterally dismantled. True purpose: preventing provinces from using the data.
Must be sufficiently integrated into the Act to be ancillary to the criminal law power.

Ancillary powers: property and civil rights should not be intruded upon lightly (General Motors)
Development of a provincial aspect — provincial registry unnecessary in light of the federal
registry. Destruction of data not necessary to the abolition of the long gun registry, so ultra
vires.
———
Administration of Justice
Judicial review: the power of the courts to determine whether action taken by a governmental
body or legal actor is or is not in compliance with our constitution, and if not, to declare it to be
unconstitutional or of no force and effect

Principle of Constitutionalism: the idea that governmental action has to comply with the
Constitution in order to be valid

BC v. Imperial Tobacco Canada (2005, SCC)

Facts
Act authorized an action by BC govt against tobacco manufacturers for the recovery of health
care expenditures incurred by the government in treating individuals exposed to the product.
Law challenged on three grounds: Division of Powers, Judicial Independence, Rule of Law.

Decision
• Intra vires the province. Cites Secession Reference.
• The fact that the Act shifts onuses of proof does not interfere with the court’s role, so judicial
independence has not been violated. Legislatures can enact laws that seem unfair and the
court just interprets them.
• If the rule of law constitutionally required that all legislation provide for a fair trial, s.11(d) of
the Charter would be irrelevant. Protection from legislation lies in the Constitution, not in its
unwritten principles.

BC (AG) v. Christie (2007, SCC)

Facts
7 percent tax imposed on legal services, ostensibly to fund legal aid in BC. Christie claimed the
tax would make it impossible for low-income clients to retain lawyers to pursue their claims.

Decision
• The Constitution does not mandate access to justice aided by a lawyer
• s.7 implies a right to counsel if life, liberty, security are at stake — this does not support a
GENERAL right to legal assistance

Ratio: There is no general constitutional right to legal assistance in proceedings before courts
and tribunals dealing with rights and obligations.
———
Access to Justice
No single body in charge of it — does not fall under the heads of the division of powers.

Trial Lawyers (2014, SCC)

Issue: Are BC’s hearing fees constitutional? If not, what is the appropriate remedy?

Decision
• Hearing fees that deny access to the superior courts infringe on the core of s.96, to hear
disputes
• access to courts is essential to the rule of law — if people can’t challenge government in
court, there is no way to hold the state accountable
• development of substantive law happens in court, so prevention of disputes prevents the
common law from functioning
• exemption for impoverished = people who are not impoverished must be able to pay them
• providing proof of poverty is an affront to dignity and a hardship in itself
• insufficient judicial discretion to waive fees

Cromwell: statutory interpretation. Exemptions cannot be interpreted in a way consistent with

the common law right to access (i.e. “impoverished” or “indigent”), so ultra vires.

Dissent: No express constitutional right to access the courts without hearing fees, and no
violation of the Charter. Judges do not have big picture of resource allocation, so should not
make decisions about it — that’s the government’s job (para 86). The rule of law does not
permit striking down of legislation (Imperial Tobacco warns against using it). It should only
apply if there is a gap. As long as the courts are still in existence, s.96 is satisfied.