Division of Powers

Division of Powers

In a federal state, governing power is divided between central (Federal) and regional
(Provincial) bodies.
• A federal constitution outlines the division of those powers.
o Where a question arises as to whether an action taken by either the federal
Parliament or a provincial Legislature is within their power (intra vires) or outside
of their power (ultra vires), the answer must be provided by the court
– judicial review on federal grounds.

Division of Power and Charter Review

In addition to challenges on federal grounds, a constitutional challenge could be brought on

Charter grounds
– has the government acted in contravention of the Charter of Rights and
Freedoms?
– Which sort of challenge has priority? Does it really matter?

In the end, both challenges cannot be successful with respect to single law, and the court will
typically consider only that which it thinks is the stronger

Division of Powers
• Constitution Act 1867 ss. 91-2 outline the division of powers between federal and
provincial governments.
• These sections give legislative authority to each authority relative to 'matters' coming
within 'classes of subjects'.

Analyzing Division of Powers

‘These classes are meant to be exclusive, admitting of no overlap.
• Where overlap appears to occur, the relevant subjects are modified (narrowed or
specified) to remove it.
- In practice there is always overlap between provincial and federal matters (thus it
is always hard to determine which power should address it)

In cases of judicial review

– courts must identify the 'matter', or the 'pith and substance' of the law being
challenged; and
– interpret the 'class of subjects' to which it belongs
• under whose legislative jurisdiction in falls.
Steps to judicial review
1. what is the law doing
2. Who passed the law (is it a valid provincial or federal law?)
3. Ultra Vires or Intra vires?

Pith and Substance

In searching for the 'matter' of a law, the court is, in essence, looking for its dominant or most
important feature.
• Where the matter is clear then this analysis is straightforward.
• Often laws have features that relate to multiple classes of subject, falling within
different heads of power.
– a direct tax on a bank seems to relate both to direct taxation (a provincial class)
and to banking (a federal class).

In Toronto v. Lambe (1887), the Privy Council distinguished between what the law was in
relation to and what the law affected. They determined that because the purpose of the law
was to raise revenue, it was 'in relation to' taxation, though it (permissibly) 'affected' banking.
- Lord Atkin stressed that Provincial and Federal law could not overlap
- But the case below displayed that overlap could take place (co-governementship)
but to a certain degree….

The general rule, then is that, for example, when a provincial law which applies generally to
class of subjects within its authority, but affects a federal class, is not necessarily invalid.
• However, if a provincial law effectively 'singles out' a federal class of subject for special
treatment,
– if a provincial tax targets only banks, its pith and substance can be identified as
falling within the federal class and deemed invalid. (Alberta Bank Taxation
Reference)
Alberta Bank Taxation Reference
- the courts had to find a permissible overlap between bank and taxation
- Tax applied was only a tax on banks thus it did not apply to the provinces
– singling out is not conclusive of the pith and substance.
– The fact that the provincial law singles out a provincial matter, does not mean
that it would be intra vires
– Overlap must it a core, essential and vital in order to be permissible
• Or, if provincial law would have the effect of impairing the status or essential powers of
federally-incorporated companies, or federally regulated enterprises, then the law could
be either be struck down as ultra vires, or, an exception could be granted in certain
applications.

Double aspect doctrine:

– where a law has two matters that are roughly equal importance, then they are
regarded as within both heads of power—a question of judicial restraint
• Subject to federal paramountcy
- If there is a situation where both cannot be harmonically read then the feds always
prevail
Matter, purpose, and the Sunday closing cases.
R. v. Big M Drug Mart (1985)
- The difference with why the shops were closed on Sunday determined who could
pass the law
- The use of closing law to protects morals (Christian religion) was a criminal law

Passing the Sunday closing law was within Federal powers because it was a criminal law
- (later struck down for Charter breach)

R. v. Edwards Brooks and Art (1986)

A year later the Sunday closing law was passed for secular reasons (they claimed it was not
religious per se)
- In Edward Brooks they looked at Hansard debates to determine that this Sunday
closing law was not for religious purposes (not about the protection of morals) but
about enforcing a day of rest -for labour reasons
- Thus, it was a provincial realm
Court held that provinces had the right to determine what days stores could close

*Determination of division of powers relied on what the matter (the pith and substance) of the
legal issue (law) to determine constitutionality

In general questions to consider when undertaking pith and substance analysts

– what is the 'mischief' a law seeks to correct?
– What is its legislative history? (e.g. Hansard)
– What is the effect of the statute?
– How is it used in practice? (Saumur v. Quebec (1953))

Pith and Substance Colourability

Identifying the matter of a law does NOT mean evaluating the merits, desirability, or efficacy of
the law
- The difference between the state v. effects of the law
– for constitutional purposes, these are irrelevant. (Re Firearms Act (2000), Ward
v. Canada (2002))
– Laws that formally appear to be designed towards one purpose but which in
reality serve another are deemed 'colourable'
– Successful examples of colourability arguments are few.

R. v. Morgentaler (No.3)
– Nova Scotia enacted a statute requiring ‘designated’ medical nine procedures,
including abortion, to be performed in hospitals. – Argued that this was a public
health issue and not a matter of criminal law (court had to determine whether
this was a matter of criminal law)
– Dr. Morgentaler had proposed to build a private abortion clinic in Nova Scotia.
(not a hospital)
 – The statute was presented as a public health measure
• formally within the head of provincial power to regulate.
• Following the decision in Morgentaler (1988), abortion was not a criminal act in
Canada.
Morgentaler
– The proposed legislation to close abortion clinics was against the 4 grounds of JR
– The court heard testimony indicating that impetus for the statute was controlling
the private abortion clinic
– The legislative history shows that stopping the clinic was of special interest to
lawmakers.
– The court struck down the entire statute, suggesting that the other 8 procedures
were added to hide the true purpose of the law (controlling access to abortion)
The courts looked at Hansard/debates about the proposed legislation
o They were able to show a lack of previously study with abortion laws and safety
o No study/discussion about the cost of private health care
• Though Sopinka J denied the doctrine of colorability was employed—perhaps to avoid
the appearance of disapproval that the term carries with it.
The courts ended up striking down the whole act
- The 8 procedures did not have to be done in hospitals (private clinics)

Essentially to find the pith and substance of the law

- Look at the preamble (purpose of legislation)
- Look outside the four corners or legislation (Hansard debates, what was said and
what was not said (research that was done and that is lacking)
- Look at the effect of the law (predicted effect or the actual effect) -the effect must
be the main purpose of the law – it cannot be incidental
Then determine whether it is an ultra vires piece of legislation

The Background Question of Division of Power

• In deciding division of powers cases the underlying question is:
– Should this matter be governed at the federal or provincial level?
• But division of power can be unhelpful if other values are not brought in
– These other values are likely to be political values; fundamental , contested and
controversial ones
JR in Practice

Judges have a prominent role in defining these values

• Judges have to exercise judicial restraint: to be aware of the power they exercise and do
so responsibly

Presumption of constitutionality: the burden of proof is always on the plaintiff

- Must proof that the legislation is unconstitutional

The court should (have to):

 • choose the interpretation that supports the statute’s validity
• where a law’s validity depends on a finding of fact, ‘rational basis’ is
sufficient –the government need not prove the fact
• where both a wide and narrow interpretation are possible, and the
narrow interpretation brings the law within the relevant head of power,
the law should be ‘read down’
Severance

Sometimes only part of a law would be deemed invalid according to the 2-step test.
• If the offending part is not inextricably bound with the other, if it is plausible that the
latter could have been enacted on its own, then, in principle, a court could ‘severe’ the
offending part for striking down.
- E.g. Bedford case and Criminal law
• Severance is rarely done in Canada, at least with federal cases; more common in Charter
cases.
– Imagine having to strike down the whole Criminal Code if a single rule was
deemed contrary to the Charter?

Inter-jurisdictional Immunity
The idea is that a province should not be able to legislate over matters clearly not within its
jurisdiction by enacting laws of general applicability which happen to capture areas under
federal jurisdiction
• a provincial or municipal by-law prohibiting posting signs on one’s lawn
would capture federal election signs;
– federal elections are within federal jurisdiction

Federally-regulated undertakings (FRU)

Are corporations that were taking under/not regulated provincial laws (interprovincial or
international transportation or communication)

Bell national telephone company exempt from provincial minimum wage laws—‘vital’ to the
management of the undertaking
• In general, provincial occupational health and safety laws do not apply to
FRUs
Irwin Toy Ltd v Quebec (AG), [1989]
- Also dealing with telecommunication
- Courts stated that vital effect is only reached when it violates federal

Canadian Western Bank v. Alberta (2007)

• Could Alberta’s Insurance Act apply to the banks (feds)?
• They argued that insurance were vital to the operations of Banks
• The act required banks to acquire provincial license and adhere to provincial
consumer-protection laws in order to sell insurance
 • The banks argued that the close relationship between creditors’ insurance and their
own vital functions (lending money, taking security) made promoting such insurance
vital too.
• Court ruled that such promotion was too far removed from what was ‘essential’,
indispensable’ or ‘necessary’ for banking.
- The law must be negatively effected by the law

Quebec v Canadian Owners and Pilots Association (2010)

– Did a provincial law designating agricultural zones apply to airstrips (aviation is
federal)?
• The court decided (unanimously)
– that the law was intra vires the provincial head of power and thus valid
BUT
– that the location of airstrips was essential to the federal power over aeronautics
• within the ‘core’ of that power.
• More than merely effecting federal power
• was sufficient to count as an ‘impairment’ to it
• The doctrine of inter jurisdictional immunity exempted aerodromes on private land
from the provincial laws.

Concurrency
Similar to the idea of cooperative federalism

While the subject classes assigned to each head of power are meant to be exclusive, there are
three concurrent powers expressly enumerated:
– A provincial power to legislate on matters relating to the export of natural
resources; concurrent with the federal power over trade and commerce
– A concurrent power to legislate on matters relating to old age pensions and
supplementary benefits
– Concurrent powers over agriculture and immigration
• The double aspect doctrine, and the pith and substance doctrine have led to a
considerable amount of judge-made concurrence in practice.
Interpretation of BNA
The doctrine of progressive interpretation holds that judges should not consider themselves
held rigidly to the intentions of the drafters of constitutional documents, nor the circumstances
of the times in which they were written.
- Original intent leaves little discretion up to the courts

The constitution is 'a living tree' capable of growth and expansion 'within its natural limits'
- What is important with this metaphor is that a constitution is not an unlicensed
interpretation
- Does not allow judges to ignore the text/framer’s intention
- But allows them to understand the text in terms of modern day
 • Not a free pass for judges to ignore the language or intentions of the framers; only
that original understanding is not binding forever
• This is in part to accommodate the foundational nature of constitutional statutes as
compared with other statutes, as well as the fact of their entrenchment.

Judge Made Law

• There are two senses at least in which judges could be said to ‘make new law’
– Judicial interpretation of novel or unforseeable cases
– Discovery (invention) of unwritten constitutional principles
• Democracy,
• Constitutionalism
• The rule of law
• Independence of judiciary
• Protection of minorities
Paramountcy
• Sometimes, provincial laws and federal laws conflict
– When this occurs, the doctrine of federal paramountcy hold that the provincial
yields to the federal law and is struck down.
– Federal law always prevails when there is a conflict
• This only happens when both laws are intra vires or a valid exercise of both federal and
provincial heads of power.
• In most cases of apparent conflict, the issue can be resolved by the ultra vires analysis

Paramountcy is very rare to see because the provinces and feds try to get along as much as
possible and the courts do a lot of ‘heavy’ lifting to make paramountcy rare
- Referencing national unity