Constitution CAN – Duffy Fall 2018

PART I - Introduction to Canadian Constitutional Law _________________________________________________________________ 1

INTRODUCTION _____________________________________________________________________________________________ 2
Reference re Succession of Quebec, [1998] 2 S.C.R. 217 __________________________________________________________ 2
JUDICIAL REVIEW AND CONSTITUTIONAL INTERPRETATION _________________________________________________________ 3
Reference re Meaning of the Word “Persons” in Section 24 of the BNA Act, 1867, [1928] SCR 276_________________________ 3
Edwards v. (Attorney General) Canada, [1930] AC 123 ____________________________________________________________ 3

PART II – Federalism ____________________________________________________________________________________________ 4

INTERPRETTING DIVISON OF POWER ____________________________________________________________________________ 4
Citizens Ins. Co. v. Parsons (1881), 7 AC 96 _____________________________________________________________________ 4
VALIDITY – PITH AND SUBSTANCE ______________________________________________________________________________ 4
R v. Morgentaler, [1993] 3 SCR 463 ___________________________________________________________________________ 5
DOUBLE ASPECT DOCTRINE ___________________________________________________________________________________ 5
Multiple Access Ltd. v. McCutcheon, [1982] 2 SCR 161 ____________________________________________________________ 5
ANCILLARY POWERS DOCTRINE ________________________________________________________________________________ 5
General Motors v. City National Leasing, [1989] 1 SCR 641 ________________________________________________________ 6
Quebec (A.G.) v Lacombe, [2010] 2 SCR 453 ____________________________________________________________________ 6
PARAMOUNTCY DOCTRINE ___________________________________________________________________________________ 7
Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 SCR 188 ________________________________________________ 7
Alberta (A.G.) v Moloney, [2015] 3 SCR 327 ____________________________________________________________________ 7
Multiple Access v. McCutcheon, [1982] 2 SCR 161 _______________________________________________________________ 8
Bank of Montreal v. Hall, [1990] 1 SCR 121 _____________________________________________________________________ 8
INTERJURISDICTIONAL IMMUNITY DOCTRINE_____________________________________________________________________ 8
Canadian Western Bank v. The Queen in Right of Alberta, [2007] 2 SCR 3 _____________________________________________ 9
Quebec (A.G.) v Canadian Owners and Pilots Association, [2010] 2 SCR 536 ___________________________________________ 9
PEACE ORDER AND GOOD GOVERNMENT _______________________________________________________________________ 10
Reference re Anti-Inflation Act, [1976] 2 SCR 373 _______________________________________________________________ 10
R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401 ___________________________________________________________ 11
Friends of the Oldman River Society v. Canada, [1992] 1 SCR 3 ____________________________________________________ 11
ECONOMIC REGULATION (TRADE AND COMMERCE) ______________________________________________________________ 12
A.G. Manitoba v. Manitoba Egg & Poultry Assn., [1971] SCR 689 __________________________________________________ 12
Labatt Breweries of Can. Ltd. v. A.G. Can., [1980] 1 SCR 91 _______________________________________________________ 13
General Motors of Canada Ltd. v. City National Leasing, [1989] 1 SCR 641 ___________________________________________ 13
Reference re Securities Act (Can.), [2011] 3 SCR 837 _____________________________________________________________ 14
CRIMINAL LAW ____________________________________________________________________________________________ 14
Proprietary Articles Trade Assn. v. A.G. Can., [1931] AC 310 (P.C.) __________________________________________________ 14
Reference Re s.5(a) of The Dairy Industry Act (Margarine Reference), [1949] SCR 1 ____________________________________ 14
RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199 _______________________________________________ 15
R. v. Hydro-Quebec, [1997] 3 SCR 213 ________________________________________________________________________ 15
Reference Re Firearms Act, [2000] 1 SCR 783 __________________________________________________________________ 16
Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14 ______________________________________________ 16
Re Nova Scotia Bd. of Censors v. McNeil, [1978] 2 SCR 662 _______________________________________________________ 16
Westendorp v. The Queen, [1983] 1 SCR 43 ___________________________________________________________________ 16
Chatterjee v Ontario, 2009 SCC 19 ___________________________________________________________________________ 17
FEDERAL AND PROVINCIAL POWER OVER ABORIGINAL PEOPLES ____________________________________________________ 17
Delgamuukw v British Columbia, [1997] 3 SCR 1010 _____________________________________________________________ 17
Tsilhqot’in Nation v British Columbia, 2014 SCC 44 ______________________________________________________________ 17

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PART I - Introduction to Canadian Constitutional Law
INTRODUCTION
What is the Constitution?
• Overarching documents of liberties, duties, procedures; written and unwritten; relationship of people/government
• Establishes legally enforceable obligations, serves as grounds for judicial decisions
• Important symbolic role as the fundamental values of society
• Amendment Formula: Federal approval and at least 2/3 of the provinces accounting for 50% of the population

What is Included?
Written:
• Constitution Act 1867
• Constitution Act 1982 - S. 52(2) outlines other documents; the Charter of Rights and Freedoms
• Supreme Court Act - Supreme Court case states this is a constitutional document
• Judicial interpretations and common law - read decisions to understand what provisions mean
Unwritten: Cannot be enforced in court, but has political repercussions
• Constitutional conventions – things that have always been done i.e. idea of responsible government

5 Major Features:
• Parliamentary Democracy – ensures general laws are made by elected legislative bodies
• Federalism – division of (power) government along territorial lines
• Individual and Group Rights – claims that citizens have the right to democracy and conduct lives as they choose
• Aboriginal Rights – aboriginal people belong to Canada but lived on the land long before Canada
• Principle of Constitutionalism – governmental action can be of “no force or effect” if inconsistent with constitution

Reference re Succession of Quebec, [1998] 2 S.C.R. 217

FACTS: After 1982 Constitution Act amendment Quebec was upset, Govt. asked the SCC a reference question
ISSUES: Under the constitution of Canada, or international al law, can the National Assembly, Legislature or Government
of Quebec effect the succession of Quebec from Canada unilaterally? NO
RULE: No province can unilaterally secede from the country without following the constitutional amendment
framework; We have unwritten principles of unconstitutional law that must be looked at in addition to the written ones
ANALYSIS:
• First step: Is this justiciable? à If it is a legal question its justiciable, if it is political then it is not à YES
• Second step: addressing the question before it
o Because there was no precedence the court had to figure out how to interpret the constitution - there was a
gap in the written constitution to answer the questions; had to use UNWRITTEN PRINCIPLES
• Identified 4 unwritten principles:
(1) DEMOCRACY
o Political system of majority rule; promotion of self-government; Canada is a constitutional democracy
(2) FEDERALISM – i.e. division of power, sharing of power by 2 govt.
o Divisions of powers in s.91 and 92 of the CA 1867 is primary expression of federalism in Constitution
o Central organizing theme of our constitution
(3) RULE OF LAW AND CONSTITUTIONALISM
o Rule of law is that law applies to everyone; Constitutionalism means constitution is supreme law
(4) PROTECTION OF MINORITIES
o Quebec argued they are a minority that needs protection – fear of language and cultural erosion
o Specific constitutional provisions protecting minority language, religion, and education
CONCLUSION: Unilateral succession is unconstitutional; However, if there is a clear majority on a clear question the
government has the responsibility to enter into negotiations to try to resolve the issues
• The Clarity Act was the legislative response to this case, gave the Federal government the authority to determine
whether question was clear and whether it was a clear majority

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 JUDICIAL REVIEW AND CONSTITUTIONAL INTERPRETATION
Judicial Review:
• The power the courts have to determine, when properly asked to do so, whether action taken by a government
body or a legal actor, is not compliant with the constitution
• Judicial review can get to court in 2 ways – (1) ordinary litigation/rule of standing (2) reference questions
o Standing – those with a sufficient interest in a legal issue to raise it before the court; can include
“interveners” and “public interest standing” to be granted at the discretion of the courts
o Reference Questions allowed as per the Supreme Court Act
• Is an obvious thing now, but not at confederation; thought that the federal government could answer everything

Constitutional Interpretation:
• Important question to ask of judicial review is how judges interpret constitutional documents, what sources of
guidance are able to be used, and which are actually used
• Six types of arguments;
(1) Historical – argument that marshals the intent of the draftsmen of the constitution
(2) Textural – argument that is drawn from consideration of the present sense of the words
(3) Doctrinal – an argument from previously decided cases
(4) Prudential – argument about costs and benefits, also called Practical argument
(5) Ethical – argument relies on the institutions and the roles within them
(6) Structural – Inferences about existence of the constitution, structures and the relationships it ordains

Reference re Meaning of the Word “Persons” in Section 24 of the BNA Act, 1867, [1928] SCR 276
FACTS: Reference question – the famous five petitioned the government to bring this question to court
ISSUE: The question: Are women included in 'persons'? (based on s.24 of BNA Act 1867) NO
RULE: Would not use a rule from this case since it was appealed to higher court
ANALYSIS: The SCC decided to address the question not by saying if women were 'persons’, rather if they were 'qualified'
To answer we have to look at the words of the legislation as well as the intent of the legislation
• Extrinsic evidence; British caselaw, some USA caselaw and BNA Act 1867
• Intrinsic evidence; provisions within the BNA Act to give clues to the intention of this provision
• Was an Originalist/Historical Approach - what was intended when this document was written in 1867?
o Problem with this is that the SCC was not willing to evolve the constitution to the present time
o Based on women's status they do not have the legal capacity to participate, not able to deal on the same
level as men; similar to minors and criminals
• The rules of statutory interpretation were also used; i.e. Lord Brougham Act – said to not apply to this case
because the words used in the constitution were gender neutral already
CONCLUSION: Women were 'persons' but were not considered to be 'qualified'; Therefore, not eligible for the Senate

Edwards v. (Attorney General) Canada, [1930] AC 123

FACTS: The ‘Persons’ case was taken to the Privy Counsel in England to appeal the SCC decision
ISSUE: Are women included in 'persons'? (based on s.24 of BNA Act 1867) YES
RULE: Women are qualified persons eligible for the Senate; establishment of the LIVING TREE DOCTRINE
ANALYSIS: The constitution is meant to be long standing but is not meant to be static to the time it was made, cannot
possibly live by those rules because society has changed
• Looking at the provisions about the Senate, there was nothing to say women were to be excluded
• Looking at other provisions in the Act, there was specific mention of males and not persons; therefore, if women
were meant to be excluded it would have been explicitly stated
"The BNA Act planted in Canada a living tree capable of growth and expansion within its natural limits. The
object of the Act was to grant constitution to Canada. Like all written constitutions it has been subject to
development through usage and convention"
CONCLUSION: Women are eligible for the Senate; and the way the constitution is interpreted is important for outcome

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PART II – Federalism
INTERPRETTING DIVISON OF POWER
Federalism: The idea of division of powers between federal and provincial government as per s. 91/92 of CA 1867
There are 3 types of arguments that can be used to challenge legislation on division of power grounds:
1. Validity: arguments focus on whether the legislation in question was enacted within the head of power’s
jurisdiction or within the exclusive jurisdiction of the other head of power
a. Pith and Substance Doctrine
b. Double Aspect Doctrine
c. Ancillary Powers Doctrine
2. Operability: argument is used to limit the operability of provincial statutes; Even if the prov. statute is valid, it will
be rendered inoperative if it conflicts with valid federal legislation that also applies to the same facts
o Doctrine of Federal Paramountcy
3. Applicability: even if the legislation is valid and within the jurisdiction of the enacting level of government, it may
be limited in its application (read down) so not to impair ‘core’ function of a federal/provincial undertaking;
technically could be used to protect either federal or provincial powers - has only been used for feds. so far
o Doctrine of Interjurisdictional Immunity

Citizens Ins. Co. v. Parsons (1881), 7 AC 96

FACTS: Ontario had specific legislation about the particular requirements of fire insurance policies to be valid; Parson had
insurance policies to cover fire damage, tried to make a claim and was denied as the Insurers said the policies were invalid,
Parson claimed they were invalid because the Insurers did not follow the Ontario legislation, Insurers acknowledged they
didn’t follow legislation but claimed it was because the legislation was Ultra Vires
ISSUES:
• Does the Act in question fall within any classes of subject enumerated to s.92? YES
• If so, does the subject of the Act also fall within any other the classes of s.91? NO
RULE: Important to classify the most appropriate head of power for legislative scheme when considering its validity;
done by determining the scope of the relevant head(s) of power and if the law fits within the scope
ANALYSIS:
• Looked specifically at S. 91(2) and S. 92(13)
o Insurers said it was not valid because S. 91(2) gave federal power over Trade and Commerce
o Parson claimed it was valid based on S. 92(13) as it was a provincial power of Property/Civil Rights (contracts)
• Need to look at the legislature with reference to the section in both heads of power and look at the language used
to reconcile the respective powers contained and given effect in each
• If insurers argument was accepted that would give the federal government the power to regulate all contracts
o Decided that if S. 91 did mean to include all contracts, it would not have specified some specific contracts in
other provisions; therefore, was not meant to be included
• Considered the subsections of S. 91 that pointed out other classes enumerated to the dominion's power, inferring
that the use of the word 'trade' was not meant to be sufficiently broad to include every type of trade, otherwise
other types of trade would not have been specifically noted
CONCLUSION: The Ontario fire legislation was a valid exercise of the Provincial power under S. 92

VALIDITY – PITH AND SUBSTANCE

• The first step in judicial review in the context of the division of powers is to identify the “matter” of the law, which is
done by looking for the dominant feature of the law or its “Pith and Substance”
• In determining the “matter” of the law, courts must consider things like:
o Statutory context; Purpose of the legislation; Effects of the legislation
o But ultimately the dominant enquiry is into underlying problem that the legislation if trying to address
• Once the matter of a law has been identified, it is necessary to assign it to a specific head of power based on the
enumerated categories of s.91 and 92 of the CA 1867

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R v. Morgentaler, [1993] 3 SCR 463
FACTS: Accused performed 14 abortions at his clinic; was acquitted at trial, and decision was upheld as appeal
•
After abortion was decriminalized in 1988, rumors about Morgentaler opening a free-standing abortion clinic
started in early 1989, within a few months temporary regulation and eventual legislation were passed to prohibit
abortions being performed outside of hospitals
• Medical Services Act (MSA): purpose was to prohibit privatization of certain medical services to maintain high-
quality health-care system - prohibited access to certain medical services to in hospitals only
• Subsequent regulations - called the Medical Services Designation Regulation listed prohibitions, including abortions
ISSUE: Is the Nova Scotia MSA Ultra Vires on grounds that the Act is in pith and substance criminal law? YES
RULE: When challenging legislation as invalid MUST characterize the leg.; done by evaluating the PITH AND SUBSTANCE
to determine if it is valid for that head of power; Also, important to look at intrinsic and extrinsic evidence
ANALYSIS:
•
Province argued that the legislation was valid under s.92(7) ability to regulate hospitals, also s.92(13) property and
civil rights and s.92(16) power over local matters
• Morgentaler argues that the legislation fell under s.91(27) federal criminal power - court agreed the legislation was
focused on prohibiting abortions which is a historically criminal law subject
• Examined the purpose and the effect of the legislation – found that the legal effect of the legislation did not follow
the stated purpose, especially the extreme penalties imposed
• Also examined EXTRINSIC EVIDENCE - the related legislation, ‘mischief’ and legislative history (Hansard) – found that
the catalyst for this legislation was Dr. Morgentaler’s plan for a clinic, and the true purpose was to prohibit abortions
as they were seen as socially undesirable and subject to punishment; the other objectives were incidental at best
CONCLUSION: In pith and substance this legislation was CRIMINAL LAW: Therefore, the provincial leg. is Ultra Vires

DOUBLE ASPECT DOCTRINE

• Problems arise because it was thought that assigning powers to s.91/92 would create ‘watertight compartments’;
BUT this idea does not work in practice
• There are subjects that fall into both heads of powers validly for different reasons - SCC has recognized the value
o Privy council - subjects which one aspect falls within s.91 and another aspect falls with s.92, there may well be
valid federal and provincial laws dictating a person for the same thing with different required conduct
o If the conduct required is cumulative and not in conflict, they may operate together

Multiple Access Ltd. v. McCutcheon, [1982] 2 SCR 161

FACTS: The Ontario Securities Act (OSA) and the Canadian Corporations Act (CCA) had almost identical provisions
prohibiting insider trading in shares trading on Toronto stock exchange
• There was accusation about insider trading happening, were charged under the Ontario legislation – in part because
the statute of limitations had already passed on the federal
• Argued that the provincial legislation did not apply because it should be dealt with by the federal head of power
because the CCA deals with federally incorporated companies such as Multiple Access
ISSUES: Is the Provincial OSA Ultra Vires? NO
RULE: If both legislations are valid and of equal importance, can both be applicable; mere duplication is not a conflict
ANALYSIS: Started by looking at pith and substance of each legislations
• Decided the CAA and OSA were both valid but for different reasons (characterized and classified both)
o CCA was valid under federal POGG
o OSA was valid under 92(13) - Property and Civil Rights
• Because they were both valid and of equal important à Double Aspect Doctrine applies
• Recognized that water tight compartments do not work and there is inevitable overlap
CONCLUSION: The legislations were found to be cumulative in effect due to being almost identical, therefore not in
conflict and allowed to bother operate

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 ANCILLARY POWERS DOCTRINE
• Refers to situations where the large piece of legislation that is valid but has a small piece that is considered invalid on
its own, but is allowed to be valid because it helps the larger legislation functions
(1) Does the impugned provision intrude or encroach on the power of the other branch of government?
(2) If so, to what extent?
GM Rule: Large legislation is valid, small piece is not valid on its own; a small intrusion only needs a functional connection,
heavy intrusion needs to be a critical connection à Under Lacombe the distinction between the two is not clear
• In theory you only need to show one parts of the tests is satisfied, but in practice you will argue both are satisfied
• If you met the higher standard the lower standard is automatically met
• Cite both cases - test is from GM, and Lacombe includes amendments and identifies the confusion

General Motors v. City National Leasing, [1989] 1 SCR 641

FACTS: CNL claimed that GM was using unfair pricing policies prohibited under s.31.1 of the federal Combines
Investigations Act (CIA) - based on GM giving better interest rates for buying vs. leasing cars from them
• s.31.1 is a remedy provision - GM only challenged this section because the CIA is a huge piece of legislation and they
could not strike down the how thing - also if this section is struck down then it doesn't matter if the break rules of the
CIA because they wouldn't have to pay the remedy anyways
ISSUES: Is s.31.1 sufficiently integrated in the CIA so as to make it valid? YES
RULE: This case determined the test for Ancillary Powers Doctrine i.e. closely connectedness
ANALYSIS:
• Look first to larger statue - is this valid legislation à Yes, the CIA was valid
• Next look at the provision - is it valid à Not valid on its own
• Is the impugned provision sufficiently connected to the larger legislation to be considered valid à Yes
• TEST: to determine how connected the provision is
o How heavily the provision intrudes relates to how connected it must be the larger legislation
§ Not heavy = functionally or rationally related, just has to help it function
§ Very heavy = must be a necessarily incidental, must be critical to legislation being able to function
o In practice usually apply both and say if it is valid under both
§ Problem is that it is subjective and hard to apply – therefore only need to make the factual argument
CONCLUSION: In GM it is small intrusion therefore only needs to be functionally related, but would have still passed the
heavy (stricter) test anyways; therefore, was considered to be valid because it was saved by the ancillary power doctrine

Quebec (A.G.) v Lacombe, [2010] 2 SCR 453

FACTS:
• Municipality introduced zoning bylaw amendment that effectively prohibited the construction of an aerodrome
• On its own this type of legislation would be invalid because aeronautics is a federal power - they were hoping that
being an amendment (No. 260) it could be saved by APD by being connected to larger legislative scheme (No. 210)
ISSUES: Was No. 260 sufficiently connected to No. 210 to save it? NO
RULE: Expanded the test set forth in GM case – added the ability to examine amendments; This case recognizes the
confusion with application of the test for ancillary powers
ANALYSIS:
• Explains distinction between ancillary powers doctrine and incidental effects
o APD - small provision is outside of power but can it be saved by being sufficiently connect to larger legislation
o IE - within jurisdiction but touches on another head of power, part of the classification
• Recognized that the courts have been confusing, said 'sorry' but we aren't stopping either
o To further confusion, used the ancillary power test on the incidental effect
o The zoning provision is a valid exercise of provincial power but the subject touches on a federal power - so is it
connected to the other statute enough to save it?
• TEST as per GM was not satisfied, No. 260 was not sufficiently connected to be saved by No. 210 being valid
CONCLUSION: Amendments can be assessed under ancillary powers test – was found to not be closely connected
enough to be saved because the purpose of No. 260 was different that No. 210

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 PARAMOUNTCY DOCTRINE
Doctrine of federal paramountcy: where there is an inconsistency between validly enacted but overlapping
provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency
• Cannot get to this before determining there are two pieces of valid legislation
• ONLY looking at conflict between the legislation
o i.e. “compliance with one, would violate the other”, or “one says YES, the other says NO”
• Conflict was not addressed in Constitution Act so needs to be a judge made law
• Reading-down - the legal fiction that a statute does something different than it is written
o i.e. reading down federal paramountcy = inoperability
o If federal statute is removed, the provincial is operable again

Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 SCR 188

FACTS:
• Federal legislation - s.19 (and subsections) tobacco product advertising restrictions with exception to retailers
• Provincial legislation - s.6 tobacco product advertising restrictions to ALL places people under 18 can go
• Tobacco companies argued that the Provincial legislation conflicts with the Federal (i.e. paramountcy)
ISSUES: Whether Sask. legislation is sufficiently inconsistent with Federal leg. such to be rendered inoperative? NO
RULE: Test for Paramountcy, i.e. (1) impossibility of dual compliance (2) frustration of federal intent
ANALYSIS:
• TEST: two questions to answer
(1) is there impossibility of dual compliance?
(2) is there frustration of the federal legislation purpose?
• This case:
(1) NO, dual compliance is possible
(2) No frustration; both had same intent of limiting use of tobacco (especially in youth)
§ Argued that the federal leg. intended to create the right to advertising through s.19 exceptions - court said
no, this goes against the purpose of the legislation
§ The provincial legislation was said to further the purpose of the federal legislation
§ Federal AG stepped in and said the federal intent and that they supported the Sask. Legislation
CONCLUSION: NO CONFLICT = both continue to operate

Alberta (A.G.) v Moloney, [2015] 3 SCR 327

FACTS:
• Moloney was in a car accident while uninsured, the province compensated the other party in the accident and
sought to recovery costs from Moloney under the AB Traffic Safety Act (TSA) - during the same time Moloney
claimed bankruptcy under the federal Bankruptcy and Insolvencies Act (BIA) and was discharged of debts
• Because of the discharge of debts Moloney did not pay the full debt to AB, and his driver’s license was suspended
• Argued that the provincial TSA conflicted and frustrated the purpose of the federal BIA - province argued that there
was no conflict because the TSA is regulatory in nature
ISSUES: Is provincial regulation rendered inoperative in respect to the federal legislation as per federal paramountcy? YES
RULE: The possibility of dual compliance was expanded by this case
ANALYSIS:
• Court unanimously said there was conflict – as the federal intent was frustrated
• BUT court then went back to the impossibility of dual compliance part of the test
o This was odd because paramountcy was already proven and no need to go back to this
o Made huge confusion on how the test works - because should be an either-or test
o Was divided on if there was impossibility of compliance, though Moloney could have just not had a license
• The burden of establishing the conflict rests on the party bringing the case i.e. Maloney
CONCLUSION: The TSA was rendered inoperable to the extent of the conflict with the BA.

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Multiple Access v. McCutcheon, [1982] 2 SCR 161
FACTS: See above, found both legislations valid under the double aspect doctrine, now moving to federal paramountcy
ISSUES: Is OSA rendered inoperative in respect to the CCA as per federal paramountcy? NO
RULE: Mere duplication, without conflict, is not sufficient to invoke a paramountcy argument
ANALYSIS: Trial judge: there is no conflict in the sense that compliance to one law involves breach of the other, it would
appear therefore that they can operate concurrently
• There is no reason why duplication should be a case of inconsistency; on the contrary it is the 'ultimate in harmony'
• Likewise having choice of remedy due to duplicate provisions is not an inconsistency - the court can regulate this
issue to not have 'double recovery'
• We are moving toward co-operative federalism in modern society - governments no longer work in isolation of each
other, increasing co-operation in ventures
CONCLUSION: OSA is not rendered inoperative

Bank of Montreal v. Hall, [1990] 1 SCR 121

FACTS:
• Hall was a farmer who took loans from BMO and was granted security interest on a piece of farm equipment under
s.88 of the federal Bank Act (BA)
• Hall defaulted on loan and BMO acted on the BA provision to seize the security interest property, BMO did not act in
accordance with s.27 of the Limitation of Civil Rights Act (LCRA) provisions requiring sufficient notice before seizure
which would then relieve debtor of obligations
• Questioned if BMO needed to follow LCRA provisions in enforcing security interests as per the BA
ISSUES: Is provincial legislation (LCRA) rendered inoperative in respect to the federal (BA) as per federal paramountcy? YES
RULE: This case was the original application of Paramountcy; example of when federal intent is frustrated
ANALYSIS:
•
The BA created the security interest but also defined the methods for realization and enforcement of that security
interest - made a uniform security mechanism that benefitted the banks and borrowers though allowing bank to
have ensured collateral which lead to less complicated and more affordable lending
• The BA allows for immediate seizure of security interest, the LCRA forbids this requiring notice
o Compliance with the federal would lead to defiance of the provincial
• Forcing banks to oblige with all the idiosyncrasies and variables of provincial schemes would defeat the specific
purpose creating the BA security interest
CONCLUSION: There is no room for the application of the sections of LCRA – therefore, inapplicable and inoperative

INTERJURISDICTIONAL IMMUNITY DOCTRINE

• A concept used in situations where a generally worded law is clearly valid in most of its applications, but in some of
its applications it arguably overreaches, affecting a matter falling within a “core” area of the other level of
government’s jurisdiction
• When interjurisdictional immunity is invoked the court will 'read down' the prov./fed. Statute to protect the core
of exclusive fed./prov. powers from encroachment
o Reading down is technique of interpretation used to save statutes from constitutional challenge - words are
interpreted to apply only to matters within jurisdiction of enacting body
• Technically can be used for both federal and provincial legislation, but to date has only been used on federal
Established precedent for where IJI Doctrine Applies:
• (1) federal elections, (2) telecommunications, (3) interprovincial railways and shipping, (4) trucking, (5) postal
service, (6) banking, (7) aeronautics, (8) navigation and shipping, (9) the military, (10) Aboriginal peoples and lands,
(11) the RCMP, (12) federal parks, (13) criminal procedure, (14) fisheries, (15) offshore resources
• Interprovincial undertakings of transportation/communications à as long as they cross a boarder/boundary

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Canadian Western Bank v. The Queen in Right of Alberta, [2007] 2 SCR 3
FACTS:
• In 1991, the Federal Bank Act was revised to allow banks to promote certain types of insurance; while their core
services are still deposits and loans
• In 2000, Alberta enacted changes to its Insurance Act to make federally chartered banks subject to the provincial
licensing scheme governing the promotion of insurance products
• Banks selling insurance - argued that federal legislation had sole authority over banks under section 91(15) therefore
the provincial legislation did not affect them
ISSUES: Does the doctrine of Interjurisdictional Immunity apply? NO
RULE: IJI should be used with restraint, as a last resort if no other doctrines resolve the issue; will only be applied to
cases with precedence of the existence an undertaking
TEST: (1) does the legislation trench on a CORE federal undertaking? (2) does it IMPAIR the core of the undertaking?
ANALYSIS: Not looking at conflict - looking at if provincial (usually) legislation trenches on federal power too much
• OLD TEST - does the legislation affect the core?
• If the legislation did affect the core it would be read down - SSC said this is too easy, not strict enough
The broad application of the doctrine if IJI can have several negative effects:
• It can frustrate the goals of Cooperative Federalism
• It can create UNCERTAINTY as to what is within the exclusive powers of each branch of government
• Can create LEGAL VACUUMS
• Runs the risk of creating a centralizing tendency in Constitutional interpretation, through FEDERAL FAVORITISM
• The broad application would also seem unnecessary, because Parliament can enact sufficiently precise legislation
and cover the field through paramountcy
For all these reasons, the court does not favor IJI doctrine; Or using it as a first recourse for division of powers disputes
• NEW TEST - not enough to just have an effect - must IMPAIR the core of the federal undertaking
o The core = something absolutely indispensable (central component) to the federal entity
• Need to figure out if there is a federal undertaking before starting IJI test
(1) Federal undertaking - person, work, or thing? à need precedence that shows this
(2) Does it impair the core?
CONCLUSION: This case; banking is a federal undertaking, BUT insurance is not a part of the core, therefore not impaired

Quebec (A.G.) v Canadian Owners and Pilots Association, [2010] 2 SCR 536
FACTS: Residents built an aerodrome on their property in Quebec - registration to Federal Minister of Transport is optional
but then makes airstrip subject to federal Aeronautics Act which says construction/operation doesn’t need prior permission
• The land built on was designated as agricultural land by the provincial ARPALAA requiring uses other than agriculture
to get special authorization from the commissioner - this was not done - as such order to demolish air strip
• Argued that the airstrip is not subject to provincial legislation based on IJI - as aeronautics are a federal power
ISSUES: Whether provincial ARPELAA applies in a situation where it impacts on the federal power over aeronautics? NO
RULE: This case is an example of the CWB test being applied, and clarifies what IMPAIR means for this test
ANALYSIS: TEST:
(1) Does the provincial legislation trench on a CORE federal undertaking?
o Jurisprudence establishes that Parliament has power over aeronautics; commercial aviation – and by extension
aerodromes à supported under the federal POGG power
o ARPELAA clearly trenches on this core
(2) Does it impair the CORE of federal undertaking?
o Impairment suggests an impact that not only affects the core federal power but does so in a way that seriously
or significantly trammels the federal power
o This case nothing is more basic than the location to place airports, therefore ARPELLA clearly impairs this
CONCLUSION: IJI is applicable in this case - aeronautics are a core federal competency - provincial legislation does impair
this competency by forcing federal legislators to choose between allowing the province to restrict the locations, or by
specifically legislating to override this - forcing parliament to adopt a more burdensome legislative scheme
• Federal Paramountcy could work here but is what would force the burdensome legislative scheme

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 PEACE ORDER AND GOOD GOVERNMENT
POGG powers come from the preamble of s. 91
• “It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make
Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes
of Subjects by this Act assigned exclusively to the Legislatures of the Provinces”
o POGG is a part of Validity and specifically about classifying the head of power
o If a case meets the POGG requirements it is not under any other HoP in practice - on the exam you will argue
the alternative to advance the analysis

Three Branches:
à Emergency: Temporary; early cases
à National Concern Doctrine: Permanent; subjects newly deemed to be of national concern; test laid out in Zellerbach; i.e.
aeronautics, radio, NCR, also inflation and environment?
à Gap/Residual powers: Permanent, not a topic we focus on

Reference re Anti-Inflation Act, [1976] 2 SCR 373

FACTS: EMERGENCY POWERS DOCTINE
• Got to court as a reference question from the Govern in Council to the SCC
• There was a 20-month period of double-digit high inflation and unemployment rates which had never happened in
Canada before and this caused panic of a looming economic crisis
• The AIA was enacted in 1974 - this legislation gave the federal government (and provincial if they opted in) ability to
control price and profits, wages and salaries, dividends, etc.
• There was a crazy amount of extrinsic evidence submit in this case – likely because the SCC realized they are not
economic experts and this case could have huge economic consequences
ISSUE: Is the AIA valid federal legislation under POGG? YES
RULE: This case determined that test to be used to determine validity under Emergency Powers Doctrine
ANALYSIS: Was thought that this case was unquestionably valid under the National Concern Doctrine – did not even
consider it would fall under Emergency Powers Doctrine
• Characterization:
o The majority characterizes the law as being designed to contain and reduce inflation
o The court bases this characterization on both the preamble and extrinsic evidence – as well as support from
having similar powers under other s.91 provisions
• Classification:
o Thought it was valid under NCD and started by arguing the alternative and classifying under EPD because if it
was valid here you did not need to look at NCD
• Majority agreed it was valid under EPD as it was a temporary provision
• Was criticized for not having any language of an emergency, and having an opt-in function
CONCLUSION: Was valid because the federal government had a RATIONAL basis for claiming an emergency situation and
did not need to actually prove that there was a real emergency
• AFTER THIS CASE the Emergency Act was enacted – as a guideline for declaring a formal emergency
DISSENT:
• When legislation controls these types of things it is a HUGE encroachment on provinces and should be Ultra Vires
• Argued that this would not be valid as NCD either – because inflation is not a new subject
• Argued this would not be valid under EPD either – because
o Said you needed a formal declaration of emergency to justify this much intrusion on prov. powers
o Also argued that there was no rational basis for an emergency because this was enacted a national concern
TEST:
(1) Did parliament have a rational basis for thinking there was an emergency?
• Do not have to prove there was an emergency, only that parliament could have rationally thought there was
• Use extrinsic evidence to support this claim – i.e. legislative climate, Hansard, etc.
(2) MUST be temporary to be valid under emergency
(3) Was the Emergency act followed? i.e. did they declare an official emergency
• This is just legislation so not always fatal without it; but is much harder to prove the rational basis without it

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R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401
FACTS: NATIONAL CONCERN DOCTRINE
• Logging operation on Vancouver Island, were using a water area for storing logs, the logs left debris in the water, and
they moved the debris to another area, they had a permit to dump the debris but not for the area that is was moved
to which was in violation of the Ocean Dumping Control Act
• Relevant provision s.4(1): prohibits dumping all substances except with a permit
• This was controversial because the Act had a prohibition that infringed on the provinces power, the distinction
between freshwater and seawater was not clear and allowed the infringement to go very far inland
ISSUE: Is s. 4(1) of the Ocean Dumping Control Act valid? YES
RULE: This case set the test for validity under National Concern Doctrine; (1) subject of new concern, (2) SDI - provincial
inability test, (3) scale of provincial impact
ANALYSIS: Marine pollution is not under an enumerated mean, that is why POGG is examined
• Characterizing:
o Purpose - regulate dumping of substances at sea to prevent harm to the marine environment
o Practical effect - supposed to protect marine and human health
• Classification:
o Province argued s.92(5) mgmt. of prov. lands; (10) local works; (13) property/civil rights; (16) local/private
o Canada - argued under s.91(12) - fisheries
o Court said NO - because there were effects on this industry, but the effects are much broader; also, there was
no evidence that this violation effected fisheries in anyway
• This was under NCD because it was a national issue that the provinces cannot deal with on their own
NCD argument:
• Pollution is not a new thing but has changed in nature and it has the potential to effect other areas of country
• SDI argument was based on not being able to distinguish between ocean water and freshwater within provinces
making water an indivisible matter to provide certainty
o Provincial inability test - proves SDI because if one province doesn't take care, the pollution will spread
• Impact on province was argued to be not that extensive
CONCLUSION: s.4(1) was validly enacted under the National Concern Doctrine of POGG
** Must be careful of POGG application because it gives the federal govt. permanent power of the matter

TEST:
(1) Determine if the entity is a matter that can be subject to POGG
• Must be a new subject matter since confederation
• Or it existed at confederation but has changed in nature since then (i.e. newly of national concern)
(2) Singleness, Distinctiveness, and Indivisibility (SDI) that distinguishes it from a matter of provincial concern
**this was meant to be 3 different things BUT is usually examined as one piece
(3) Scale of impact on the province that is reconcilable with the fundamental distribution of legislative power
• i.e. impact that is not so bad
• This cannot be determined definitively, just have to acknowledge it
(4) In order to determine this - need to look at the PROVINCIAL INABILITY TEST
• i.e. what would happen if one province did not regulate the issue well

Friends of the Oldman River Society v. Canada, [1992] 1 SCR 3

FACTS: NATIONAL CONCERN DOCTRINE
• Alberta wanted to build a dam – project was approved by the federal government following the federal legislation
• FOMRS wanted an environmental impact study done, so they argued that the federal legislation was Ultra Vires
ISSUE: Is a provincial project with environmental impacts subject to federal law? YES – but also provincial
RULE: Legislation of the Environment a subject matter subject to the Double Aspect Doctrine
ANALYSIS: This case challenged the Zellerbach decision that seemed to give the power over the environment to the feds.
•
Argued it should be a double aspect subject matter - court agreed as both s.91 and 92 have categories that would
apply to regulating the environment
CONCLUSION: Environment can be under the NCD/POGG, but is also a double aspect subject matter

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 ECONOMIC REGULATION (TRADE AND COMMERCE)
Provincial Powers over Economic Regulation
Intra-Provincial Trade and Commerce
à s.92(13) – Property and Civil Rights: local business, local matters, local production
• Regulate T/C within province - limited by the intention of legislation, cannot use this to steal power from the Feds.
• Interpreted VERY broadly

Carnation Case: Provincial production of evaporated milk

• Province may regulate over local production as long as the aim/intent of the regulation is the LOCAL PRODUCTION
o If the intention was to only regulate local production, then the legislation would be intra vires
o If the intention was to affect interprovincial trade - then it would be ultra vires to the province
• Therefore, MUST look at intent of legislation under s.92(13)
• This commonly happens in agricultural context because of the high comp. between provinces - provinces want to
make legislation to protect themselves and likely end up overstepping power

A.G. Manitoba v. Manitoba Egg & Poultry Assn., [1971] SCR 689
FACTS: Ontario had lots of cheap eggs, Quebec had a lot of cheap chickens
• Manitoba was being badly affected by Quebec's legislation – which was clearly Ultra Vires
• Responded by making legislation that was very creative à passed legislation made it in exact same way Quebec had
• Asked Supreme Court in Manitoba about validity, knowing it wouldn’t pass, with the hopes of a SCC appeal so the
decision would be binding on all provinces
ISSUE: Does Manitoba have the power to regulate the marketing of extra-provincial eggs? NO
RULE: What the legislation aimed at - it's intent - matters greatly; example of Ultra Vires T/C legislation by a province
• Local production is PROVINCIAL power
• Interprovincial trade or marketing is included in FEDERAL power
ANALYSIS:
• This legislation was clearly made with the intent to affect interprovincial trade - therefore ultra vires to prov.
• If legislation is made with the intent of regulating local production/trade only but has incidental effects on
interprovincial trade it can be saved by APD
CONCLUSION: This war ended because the federal government finally came up with a cooperative legislation solution

Reference Re Agricultural Products Marketing Act:

• It is possible to set up cooperative legislation between provinces, both would be valid, and this would make
interprovincial trade under the power of each province rather than the feds.

s.121 - Free Trade Between Provinces: (no duties or tariffs)

• This just addresses tariffs, not the limits to what can go between provinces
• i.e. BC preventing alcohol from AB be brought over the border is allowed, but they couldn't put a tariff on AB liquor
being sold in BC

s.92A - Natural Resources:

• Allows for additionally provincial power over non-renewable natural resources i.e. AB - oil and gas; BC - forestry, etc.
• Was added during the amendments in 1982
o Subsection 1 - if something is listed here is it the exclusive power of the province
o Subsection 2 - allowed to impact interprovincial T/C only if there is no price discrimination
o Subsection 3 - nothing in ss.2 derogates (removes) from the authority of parliament to enact laws about that
subject, and federal paramountcy doctrine applies to any conflicts that may arise
• If a fact pattern on the exam touches on natural resources check if it is in S. 92A; if so, federal paramountcy applies
Offshore minerals:
• The rule is, if the offshore mineral area was within the provincial jurisdiction at time of Confederation then it is within
the Provincial jurisdiction, otherwise it is within the Federal jurisdiction under POGG and its residual capacity

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Federal Powers over Economic Regulation
à S.91(2) – Regulation of Trade and Commerce
• Parson's case determines two branches: (1) interprovincial/international branch (2) general T/C power
• Interpreted VERY narrowly
• The privy council limited powers so much that the SCC is trying to find ways to increase the scope now

Interprovincial and International Trade and Commerce

Klassen and Caloil Cases:
• Expanded on APD to apply to Federal T/C power
• Cite together always - these cases feed of each other to come up with the rule
• This is the SCC's way of saying look at APD to see if s.91(2) power can be expanded

General Regulation of Trade

• Rarely used and rarely successful - basically only ever been used in GM case where the test was designed
• Is the regulation of something that doesn’t particularly cross boarders à regulating things such as competition

Labatt Breweries of Can. Ltd. v. A.G. Can., [1980] 1 SCR 91

FACTS: On its own, this case does not tell us much, needs to be read with the GM case
• Food and Drug Act s.6 states that; as per the standards that are established in this act, there can be no sale under
than standard unless it actually meets the standard
• Light beer means a lower alcohol content in the beer
• Labatt broke this rule as they produced a beer with higher alcohol content than the standard but sold it as 'light beer'
ISSUE: Whether regulations for “light beer” were Ultra Vires to federal government? YES
RULE: Specific Industry (local matter) = NOT Federal General T/C power
ANALYSIS: Was not an interprovincial T/C question - therefore general T/C
•
Problem - the legislation has a very specific scope, and this makes it very local and not a national concern à it
dealt with a very specific industry within provinces i.e. brewing
• Therefore, it is a PROVINCIAL power not a federal power
• Dissent - this leg was to control standard across the Country and in this case, Labatt could transfer products across
country because of their many brewing locations
CONCLUSION: Found that the legislation was Ultra Vires and Labatt's light beer was allowed

General Motors of Canada Ltd. v. City National Leasing, [1989] 1 SCR 641
FACTS: This case was unique because it laid out 2 division of powers tests in one decision (APD and general trade power)
• This case came to court because CNL alleged that GM was violating the CIA for using unfair interest rates; creating
unfair competition between other car rental companies
ISSUE: Whether s.31(1) of the Combines Investigation Act and the Act itself are valid? YES
RULE: Set the 5 criteria for Federal General T/C Power
ANALYSIS: Outlines the General Trade and Commerce Powers Test
(1) Legislation is part of a general regulatory scheme
a. legislation identifies, defines required / prohibited conduct
b. legislation creates investigatory procedures
c. legislation establishes remedial / punitive mechanisms
(2) Scheme is monitored / overseen by a regulatory agency
(3) Legislation is concerned with trade as a whole, not a particular industry
(4) Legislation is of a nature that provinces are constitutionally incapable of enacting it, jointly or severally
(5) Failure to include one or more provinces in legislation would jeopardize the successful operation of the scheme
in other parts of the country
** BUT this is not an exhaustive list and if you meet all parts of the test you still may not be successful…
CONCLUSION: Application of the test found that there was a regulatory scheme; and a regulatory agency, was concerned
with trade as a whole; the provinces would be incapable alone; and failure of province would jeopardize à leg. is valid

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Reference re Securities Act (Can.), [2011] 3 SCR 837
FACTS: Was a reference question from the federal government to find out if it was within the federal power to create a
federal securities regulator (even though the provinces do have their own already)
ISSUE: Whether the proposed Securities Act is within Parliamentary authority under the general trade power? NO
RULE: If the federal government wants to use the General Trade and Commerce power, it must have evidence that the
issue is of national concern for them to assume that power
ANALYSIS:
• The purpose behind this legislation was to create uniformity in security regulation
• Only questioned about the validity under the general T/C power à weird that they didn't ask about constitutionality
under criminal law, interprovincial trade, ancillary powers
o Weird b/c they restricted themselves on where validity could be found - could probably be valid under criminal
o Also, weird b/c it is not quite a last resort option, but is not a favored doctrine
• The subject matter of the legislation is SECURITIES
o We know from prior cases this is a DOUBLE ASPECT DOCTRINE subject matter i.e. multiple access case
• Went back to the GM case - and applied the test
(1) regulatory scheme --> yes this was the point of the legislation
(2) regulatory agency --> yes, again this was the purpose
(3) trade as a whole --> no, particular industry (securities)
(4) provincial independence --> no, prov. already regulating themselves
(5) provincial dissent --> no, again same as step 4
CONCLUSION: Classification cannot be supported under “general” trade and commerce
• Act does have a national dimension, but is too invasive on provincials (if re-written it could be valid under DAD)

CRIMINAL LAW
Federal Powers over Criminal Law
à S.91(27) – while s.91(2) was read to be very restricted, s.91(27) has been read to be extremely broad
• Different cases set different parts of the criminal law test, cite each separately for each part

Proprietary Articles Trade Assn. v. A.G. Can., [1931] AC 310 (P.C.)

FACTS: Not very important, and very dense
RULE: Added to criminal law test à the FORM i.e. PROHIBITION and PENALTY
ANALYSIS: Allowed the federal government to make new crimes
• Set part of the criminal law test - specifically the FORM i.e. prohibition and penalty
• If a statute has these two things, it has the criminal law form
• Problem: any statute could become criminal law by having these two things - TOO much could be criminalized

Reference Re s.5(a) of The Dairy Industry Act (Margarine Reference), [1949] SCR 1
FACTS: Came to court as a reference question – Is s.5 of the Dairy Industry Act ultra vires to parliament
• Sounded like a trade and commerce statute but asked if they could make it valid under criminal law power
ISSUE: Whether section 5(a) of the Dairy Industry Act is a valid enactment of the criminal power? NO
RULE: Added to criminal law test à leg. must have a criminal INTENT
ANALYSIS:
• Went through history of criminal law - stated again that new crimes can be established
• What 'evil' is being addressed here - i.e. Peace, order, health, morality, security
• Added to the test à must have a criminal INTENT behind the legislation (i.e. look to the purpose)
• Application to this case:
o Court said purpose was colorable - said it was about health but was really to limit T/C aspects of dairy industry
o Did not have a criminal law purpose
CONCLUSION: Section 5(a) of the Dairy Industry Act is in part Ultra Vires the Parliament of Canada
** Important because this is one of the only cases where something was not found to be valid under criminal law power

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RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199
FACTS: Started the expansion of the criminal law power
• Examined the Tobacco Products Control Act
o Prohibited all advertising and promotion of Tobacco products offered for sale in Canada
o Exemption = advertising of foreign tobacco products in imported publications (international products)
o Legislation also required the display of unattributed health warnings on all tobacco products
ISSUE: Was this legislation ultra vires to the federal government? NO
RULE: Criminal law is plenary; Criminal legislation may contain exemptions and regulatory elements as long as the pith
and substance of the legislation is criminal law; Health is a criminal law intent
ANALYSIS: Criminal law is plenary in nature - stand alone and extremely broad à not likely to be limited
• Basic requirements in criminal law
o Criminal law form = prohibition + penalty (PATA)
o Criminal law purpose = what evil is being addressed - 'evil' is a term of art (Margarine)
• The prohibition was a prohibition of selling a product without the warnings - the penalties were financial
• What was at issue (was not the form) was the criminal law INTENT
o Talked about how the problem with tobacco is the HEALTH ISSUE - which is a criminal law purpose
• This was a means to the end analysis
o The end was protecting health = criminal power
o The means can be chosen by the feds. = restrictions on advertising
• Exemptions = more regulatory in nature and not criminal power
o Not a hard rule though, can have exemptions and still be criminal in nature
o i.e. here the exemption did not remove criminal law power because the exemption was only about 1% of the
total advertising
• DISSENT: the 'evil' here (INTENT) was smoking which is not illegal in itself, only the advertising of it (lends to being
more regulatory in nature); and had different stats about what advertising is foreign and exempted – claiming 65%,
which would make this law ineffective and more regulatory in nature
CONCLUSION: Found that the legislation was intra vires under the criminal law power s. 91(27)

R. v. Hydro-Quebec, [1997] 3 SCR 213

FACTS: Case got before the court by violating an interim court order under CEPA to limit emission of PCB's
• Hydro-Quebec argued that the legislation is not valid
• Crown argued validity of CEPA under POGG and s.91(27)
ISSUE: Is Part II of the CEPA and its regulations Ultra Vires Parliament? NO
RULE: If there is a criminal form and purpose then just because there is a (strong) regulatory scheme, it can be criminal
still because criminal law is plenary and not frozen in time; Environment is a criminal law intent
ANALYSIS:
• Feds thought that this legislation would be valid under National Concern POGG based on its preamble
• CEPA - part II à sets out a scheme that looks very regulatory in nature, describes a process to prohibit substances
(which is not an actual prohibition in itself)
• Based on Old Man River we know that environment is DAD
• The 'evil' (INTENT) here is pollution and environment are a recognized aspect of criminal purpose
• Basically, this case was allowed under s.91(27) rather than POGG because
o 91(27) doesn’t take away total power from provinces, whereas POGG would be a permanent removal of the
provinces power
o Weird because should have just been an analysis if the test was met, not which one would be better
• SCC found that there was a prohibition and a penalty - and the long process led to precision of restrictions
• DISSENT: Said this is all regulatory - not criminal
o Don’t even know if your substance is prohibited until process is completed
o Important aspect of criminal law is knowing what is and is not a crime
o This legislation was made to prevent things via a regulatory agency
CONCLUSION: Impugned legislation was a valid under criminal law power s.91(27) didn’t need to address POGG

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Reference Re Firearms Act, [2000] 1 SCR 783
RULE: Regulations of fire arms is valid under s.91(27)

Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14

FACTS:
•Quebec expressed its intention to create its own provincial gun control scheme and asked Canada to give it the
data on long guns connected with the province; The federal government refused; As a result, Quebec challenged
the constitutionality of the federal law providing for destruction of the data and sought an order requiring the
federal government to turn it over
• There was no criminal law form, no prohibition or penalty - but was valid because it was connected to the previous
legislation that was valid under criminal law power
RULE: the rescinded legislation was valid criminal law, then legislation under it will be valid even if it was rescinded
If

Provincial Power to Regulate Morality and Public Order

à s.92(14) and s.92(15) - not truly criminal but very similar
• 92(14) – Administration of justice in province
• 92(15) – Corollary provision which cannot be valid by itself must be connected to another provincial head of power
[usually 92(13) or 92(16)] – if so, will be valid even if there is criminal form/purpose

Re Nova Scotia Bd. of Censors v. McNeil, [1978] 2 SCR 662

FACTS: Nova Scotia Theatres and Amusements Act and regulations - established a system of licensing and regulating the
showing of films (censoring films they did not approve)
• Breach of a prohibition resulted in monetary penalty and revocation of the theatre owner’s licence
• McNeil (private citizen) brought declaratory action so he could see “Last Tango in Paris” (which was going to be
censored by the Board – for graphic rape scene)
ISSUE: Whether the Theatres and Amusements Act and regulations are validly enacted by the province? YES
RULE: Provincial legislatures are allowed to legislate morality if: (1) the objects are anchored in a provincial head of
power, and (2) the legislation does not conflict with a federal legislation
ANALYSIS:
• Majority: found the Act and associated regulations to be valid under s.92(13) and s.92(16)
o The act gave power to ban movies and impose a penalty if theaters do show the movie
o Pith and substance of the Act - dealings with property (films) which take place wholly within the province
• Therefore, characterized directed at property and civil rights and valid under s.92(13)
o Based on dissent the majority should have just said "we find this valid because it is anchored in provincial HoP"
• DISSENT: determination of what is decent/obscene is within the exclusive power or the Fed govt under criminal law
o Provincial legislatures are allowed to legislate where moral considerations are involved but only if:
• The objects are anchored in a provincial head of power, and
• The legislation does not conflict with a federal legislation
o In this case the dissent feels there was not enough of an anchor to make this valid
CONCLUSION: The Act and regulations as a whole are valid under s.92(13) and (16) (either was an “anchor” for s.92(15))

Westendorp v. The Queen, [1983] 1 SCR 43

FACTS: Calgary Enacted Bylaw 9022 (under s.92(13))
• s.6.1 was an amendment and explicit provision dealing with prostitution, which stated
o s.6.1(2) – being on street for purpose of prostitution
o s.6.1(3) – communicating with/approaching someone for the purpose of prostitution
• S. 6.1 - had more significant penalties than any other provisions in the bylaw
ISSUE: Whether s.6.1 of the Bylaw can be upheld as valid? NO
RULE: The provinces do not have a power that extends beyond any double aspect principle; cannot target a specific
crime and relate it to a provincial HoP

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ANALYSIS: Did an APD analysis (but this was before GM came out with the test)
•Stated purpose was to control the streets
•It was clear that this amendment was for the purpose of preventing prostitution - which is well known as feds. power
•APD analysis:
o Was different in nature to the other provisions
• An attempt to control or punish prostitution; there is no property question here
o And was not found to be necessary for the rest of the bylaw to function
• s. 6.1 stands on its own, nothing before or after it relate to it (is intrusive and unconnected to Bylaw)
• It is activated only by what is said by a person, referable to the offer of sexual services
• Pith and substance: legislation was criminal law aimed at stopping prostitution which is a federal power, the other
purposes were colourable (the purpose stated was NOT what they were trying to do)
o Colourability - if purpose concerned with controlling the streets, why didn’t the city enact legislation targeting
all congregations?
• Background: feds. made activities around prostitution illegal but not prostitution itself - Cities were not happy with
this so they made their own legislation à feds knowing Cities are not happy is a strong indication of colourability
CONCLUSION: s.6.1 is a blatant attempt to ban prostitution and is in pith and substance criminal law, and is Ultra Vires

Chatterjee v Ontario, 2009 SCC 19

FACTS: The Ontario CRA authorizes the forfeiture of proceeds of unlawful activity
•Property may be forfeited if, on a balance of probabilities, it is demonstrated that the property constituted the
proceeds of crime in general, without further specificity
• Purpose is aimed at mitigating the costs of crime on the province
• There is a similar federal law power - but is aimed at preventing people from benefiting from crimes
RULE: In cases of overlap it is necessary for the Court to identify the “dominant feature” of an impugned measure
ANALYSIS: The provincial CRA has a stated different purpose than the federal legislations
• Because the intention is not to criminalize - rather to recoup costs/losses from criminal activities, this is a provincial
property objective NOT criminal à Therefore valid

FEDERAL AND PROVINCIAL POWER OVER ABORIGINAL PEOPLES

à s.91(24): Indians, and lands reserved for the Indians
• Federal power to legislate all aboriginal issues in Canada
à CA 1982 also has s.35 - Aboriginal Rights

Delgamuukw v British Columbia, [1997] 3 SCR 1010

RULE: Federal govt. has exclusive power over legislation over aboriginal peoples
• Only the feds. can extinguish aboriginal title and only title from before 1982
• Provincial govt. can legislate generally - and some laws may apply to aboriginal people
o Delgamuukw decided that IJI protects the core of the power relating to aboriginals as defined in s. 91(24)
o Therefore, law of general application in prov. cannot impair federal core power

Tsilhqot’in Nation v British Columbia, 2014 SCC 44

RULE: This case limited the core of what is aboriginal powers under federal power s. 91(24)
• IJI does not apply to aboriginal title or treaties, and we are not sure about the rest of aboriginal rights
ANALYSIS:
• This decision was that IJI no longer limits provinces to rules of general application for aboriginal title
• In obiter, SCC stated the IJI is not available if you are arguing that it impairs aboriginal title
o Obiter is important because it is not binding but coming from the SCC it is highly persuasive
• Thought that this case may have extinguished IJI for all aboriginal rights, but that is unsettled

** Problem: We already have s.35 - so we don't need two constitutional tests for aboriginal title

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