Constitutional principles, with focus on constitutionalism/rule of law

Quebec Secession Reference – (process by which an entity can remove itself from the constitution – court considers
unwritten principles. Domestic and international law). There are 4 organizing principle of the constitution, regardless of
exactly what we include: federalism, democracy (greater than just majority rules – set of relationships and duty to
negotiate), constitutionalism and the rule of law, and respect for minorities.

Note - a court may decline to answer a reference on the basis of non-justiciability.

BC v. Imperial Tobacco
The tobacco manufacturers challenged new legislation put through to make it easier to try them, on three constitutional
grounds: Division of powers between parliament and provincial legislatures, Judicial independence, Rule of law
 The appellants in the case misunderstand the nature of the relationship between government and the
independent judiciary.
o The judiciary can abide by unconventional rules legislated about the procedure and the weight of
evidence, as theirs is the role of an adjudicator, hells, parliament can pass draconian rules if they like, as
long as it’s not unconstitutional.
o Appellants view ≠ judicial independence, = judicial governance.
 They also give powers to rule of law that it doesn’t have – 3 principles of rule of law
o law is supreme over officials of the government and private individuals;
o requires the creation and maintenance of an order of positive laws that preserves normative order;
o regulates the relationship between the individual and the state/exercise of public power must find its
source in legal rule.
 
Constitutional interpretation and judicial review

Excerpt from Elliot:

o 6 kinds of structural argument: Historical, Textual, Doctrinal argument, Prudential, Ethical argument, Structural
argumentation
Edwards v. Canada – (the Persons case);
o Great piece of SI comparing the meaning 'persons' in different parts of the act.
o Also a starting case from the statement of "living trees"
o Not stating anything about the rights of women, but only their eligibility for a particular position.

Note - Triggering Judicial Review

 Generally triggerable by attorneys but a new category of 'public interest' was introduced.
 A reference generally comes through the executive branch.
 
Introduction to federalism Overview of division of powers Constitution Act 1867,
ss. 91 – 95, s.109
Silver, “The French Canadian Idea of Confederation”
o Federation –
o ‘Canada’ - focused on the smooth functioning of state
o Quebec - French nationality, strong local government, protecting their interests and taming central power.
o Federation-proper rather than a common legislature of 2 Canadas, would protect Quebec’s minority
interests.
 reservation or disallowance, Declaratory power, residual power ???? Look these up!
 
Early evolution of the division of powers: the late 19th Century/Doctrinal

R v Chandler (1868) - how can the judiciary declare a law void if there is legislative supremacy? Look at the BNAA and
see if it says there is power, if not it’s void.
Citizens insurance company v Parsons
 Fire insurance – didn’t follow terms, which were against the provincial law – argument that provincial
law is ultra vires.
 Is the insurance contract under 91(2) or 92(27) ?
 If unavoidable 91/92 overlap  federal paramountcy.
 Otherwise. Mutual Modification – reduce overlap to zero, by construing heads of power narrowly.
 Does it fit into 92, if so does it also fall in 91. If not 92, then POGG.
 91(2) – construe narrowly, otherwise too much overlap. (SCC min thought this)
 International and interprovincial trade
 General regulation of trade affecting the whole Dominion.
 92(13) – this fits, it is at heart a contract issue. (SCC maj)

Russell v the queen - temperance act, option for towns to ban - tavern owner criminally charged for selling alcohol
illegally - challenged the constitutionality of it can the feds regulate it?
 First real 'pith and substance' case.
 Used test in Parsons.
 92 (9; 13; 16) – Not fiscal act - will diminish revenue; criminalizing alcohol ≠ P&CR - regulating
public order and safety, not giving civil rights; no.
 Characterization is not affected by an 'incidental' interference with other matters . Criminal law
in pith and substance (early mention of this power)
 This was private case, gave genesis to the giving notice – AG was upset not to be involved.

Hodge v the queen - provincial law regulating alcohol, a licensing regime. Argues that if the feds can pass the
temperance act, then they cannot pass this law.
 First instance of "double aspect" doctrine. – If conflict, feds paramount. If no conflict, ok.
 Pith of this law - it regulates local sales.
 P&CR may be used to prohibit certain kinds of property, therefore can license. Deals with a local matter.
 The Dominion and the Provinces are equal in kind and importance – provincial power is not delegated power,
and therefore may be delegated.

AG Canada v AG Canada - Local Prohibition Reference 1896 - local version of the Temperance Act. (SCC said No, PC said
Yes)
 First case that discusses the POGG (residual) power
 POGG narrowed to matters unquestionably of national importance and interest – couldn’t encroach
upon or incidentally effect 92 powers.
 Anything in 91 shall be deemed not to be in 92. 92(16) is a residual provincial power.
 Federal paramountcy – but didn’t not need here cos you could comply with the stricter of the two laws.
 
 The broad interpretations allowed Quebec to protect its autonomy, stop the union falling apart
 92(2) and POGG now have narrow meaning.
 
The Depression and the New Deal
Compact theory - Canada should have to prove that it has power, rather than the provinces, since the provinces had it
first. Against text of BNAA. Was abandoned by many at this point returning in 70s (except maybe by Quebec).
 The privy council continued to protect provincial authority, and narrow views of federal powers, despite the
economic times.
 They did deploy the double aspect doctrine - but this was inconsistent with protecting provincial autonomy,
since residual authority of the feds soaks up the rest.
 
P.A.T.A. Reference – regarding Combines Investigations Act (and related CC S498) – is it intra vires the federal power?
 The Dominion has power over the 'criminal law' in the broadest sense.
 Criminal = prohibition + penal punishment. No moral intuition involved.

Aeronautics Reference – (NB: from before the Statute of Westminster – gave legislative independence to the colonies)
Can Canada unilaterally impose international treaties? S132 does also give Canada power to perform their obligations
towards foreign countries?
 They have 'not only the right but the obligation'.
 It is not necessary to find the powers under 91, 132 will suffice. Dominion had paramount, although not
exclusive, authority to implement the convention under s132.
 91 (2; 5; 7) – cover the whole of aeronatics – Feds have exclusive control (PC, SCC says not exclusive)
 Doesn't fit comfortably into any class, and the court decided that it's not 92(13). It's best not to force the
analogies either.
Radio Reference - also an international treaty, but came after 1931 statute of Westminster.
 132 spent, but Canada still obliged to follow up with legislation. How?
 Radio not invented therefore not in 91 or 92  POGG, as residual.
 Question of interprovincial radio use – but cannot separate transmitting and receiving, so will be federal. Also
treaty didn’t really leave anything for provinces.
 
Cases above show the power of the dominion. Quite narrow. Below is the power of the provicnes.
 
Labour Conventions Cases - set of acts from Treaty of Versailles and International Labour organization as a treaty -
Limitations of Work Hours Act, the Weekly Rest in Industrial Undertakings Act, The Minimum Wage Act. Obvs 92(13).
(SCC split, PC said it was ultra vires)
 Cannot use 132 (though, GB did sign it originally). Can't interpret the treaty making power as if it would allow
intervention in provincial rights because it would undermine all the safe guards for autonomy. No such thing as
treaty legislation.
 Can't make the provinces do it (Radio doesn't help, because that was new); and this was in the contemplation of
CA1867. BUT was it? Really?
 Distinction between formation of treaties (Canada can) vs implementation.
 Legislative powers remain distribute, which is not to say that Canada is incompetent to legislate in
performance of treaty obligations - in the totality of legislative powers, she is equipped
 "while the ship of state now sails on larger ventures and into foreign waters she still retains the
watertight compartments which are an essential pert of her original structure"
(Watertight compartments – can be augmented, but not have power taken away. Around now is when Acts that
encroached from one legislative body to the other, would be ‘read down’, so as they didn’t interfere).

Unemployment and Social Insurance Act – req’d contributions to federal fund – obvs 92(13)
 Maj SCC and PC – Insurance is definitely provincial  ultra vires.
 Dissent - taxation + ability to spend money on individuals (nothing to stope them)
 Lord Atkin – what’s the difference?
 
Enter the 50s with power in the provinces protected, and the CA amended such that the feds have some power over EI
social security ('40s).
Except criminal which continued to be broad.
Federalism and the Modern Canadian State - how to set up an argument
Values informing Federalism: Community, Democracy, Efficiency (/economics).
What are we trying to achieve? Where is the balance?

 Categorize it: 'pith and substance' - what is its matter/overall dominant objective. (Morgentaler)
 Classify it: considering the above, which 'class of subjects' does it fit in? (Fast Freight, Same Sex Marriage Ref)
 Then use one of the arguments below

Challenge to the validity of legislation  ultra vires

Tools: pith and substance, double aspect, ancillary power.

Limit the applicability of valid legislation  inapplicable to you as a set of people – application of law has shrunk

Limit the operability of provincial statutes  inoperative because of federal paramountcy – law is in limbo.
If a provincial and federal law conflict.
 
1. Characterization of Laws: “Pith and substance”

R. v. Morgenthaler 1993 - Are the NS Medical Services Act and its regulations ultra vires on the grounds that they are, in
pith and substance, criminal law? Regulating abortions in clinic outside the hospital - province was filling in the gap of
the criminal law, so in essence, it was criminal. An SI contextual analysis in Division of Power case.
 Factors to consider in deciding division of powers cases:
 Words of the act.
 What is the legal effect? (tells us about the matter)- who's rights and obligations are being affected here
 Scheme - what are the means chosen by the legislature to achieve its objective?
 What they did (in this case regulate 9 procedures) – if means don’t advance scheme masked
purpose…
 What are the practical effects? (this never got going) – be careful not to debate wisdom of law.
 Purpose
 Do the legal effects [duplicate the now defunct CC provisions? Yes.]
 Background context (Course of events, legislative history, was there an evolution, what did
Hansard say? Other evidence of a problem/concern)
If means don’t tally with stated purpose, that’s problematic – this is an example of colourable legislation.

2. Classification

 Every head of power must be interpreted

 The major heads of power have been interpreted since 1867 - look to precedent.
 If a 'new' head of power comes up - it hasn't been interpreted for a long time, or forever - the living tree
approach is currently favoured ('Persons' case points this out - though it was not a division of powers)
 Same-Sex Marriage Reference - 91(26) didn’t freeze the common law def of marriage. Parliament may
take a large, liberal and progressive approach to interpretation and change the definition if they wish.
 BUT most recent approach - Fastfrate – gave strength to original intention of drafters, in a split decision.
 Fastfrate - whether the labour relations of Fastfrate Calgary are subject to provincial or federal
regulation – Is the business federal or provincial in nature? Neither Fastfrate employees, nor its equipment, are
involved in any actual interprovincial transport – but integrated national corporate structure.
 Majority - 92(10,a) grants companies connecting provinces to Feds jurisdiction – doesn’t contemplate a
contractual 3rd party relationship as causing Fastfrate to be an interprovincial business. Doesn’t
physically connect. This was a split court. Original intent won.
 Dissent - were shouldn't look at the intent of drafters in 1867, we should take a living tree approach.
Proper test is a functional one – what did they do for their customers? Criticism of the ‘originalism’ in
the majority (not a normal Canadian approach).
 
Validity and overlap: the double aspect and ancillary doctrines
Historically, Watertight compartments Mutual modification  Some overlap is an incidental effect of federalism
Embrace the overlap - Double Aspect Doctrine OR ancillary powers doctrine (APD)

Multiple Access v. McCutcheon - foundational double aspect doctrine case. Ontario Securities Act prohibits insider
trading for everything on the TSX. Canada Corporations Act prohibits insider trading in incorporated companies.
Test:
 Is federal law is valid? - comfortably within company law (not narrowly defined. Rights/responsibilities/duties of shareholders etc.).
(good government requires incorporated companies, they must be created - not actually stated in 91)
 Is provincial law is valid? - no serious arguments against - they can regulate market in securities.
 Is there a conflict?
 If no  double aspect doctrine. The characteristics on each side are of equal important
 Duplication ≠ nec’ly conflict, and not sufficient for paramountcy.
 ‘duplication is ultimate harmony’
 Difficult to carve out nooks, so IJI doesn’t apply.
 If yes  federal paramountcy. (other options?)

Mangat – areas regulated differ slightly - immigration consultant not called to bar, representing people. Immigration Act
allows people other than lawyers to represent aliens. The BC Legal Professionals Act does not allow non-lawyers to
represent or give legal advice.
 Provincial law – valid in right to regulate professions (civil rights and admin of justice)
 Federal law – valid in right to regulate immigration. (immigration)
 Provisions of federal law fall into both provincial and federal heads of power.
 If no conflict both co-exist
 If conflict – federal paramountcy (favoured over IJI because of dual aspects of provisions)
 Conflict? Yes. Dual compliance is impossible without frustrating parliaments purpose
 Immigration Act will prevail.
 
Reference Re Assisted Human Reproduction Act - ???
Statutes are now big and complicated. It's very possible that within these there will be some provisions that are outside
of their jurisdiction. What do you do here? Strike down the whole statute? No. Like hitting fly with sledge hammer. -->
doctrine of severance (in opposition to APD)

Also  APD - provision is such an integral part of the legislation, and the overall scheme of the otherwise valid act needs
that provision.
  
General Motors - Provides the test for ancillary powers doctrine - Federal Combines Investigations Act creates a civil
cause of action. 33.1 is the impugned provision.
Test:
1. Examine ImP - does it intrude on provincial powers, if so how much?
2. Validity of Act
3. Is it serious - is it sufficiently integrated that it can be upheld by virtue of that relationship?
i. Must be sufficiently integrated.
ii. How sufficient depends on how serious the intrusion is.
1. If not serious, then there just needs to be a rational connection (Lacombe adds - rational
and functional – furthering the purpose of the legislative scheme, not merely add to it)
– not serious would be remedial, or a limited scope of action.
2. If serious, needs to be a tight fit – necessarily incidental (test?)

If no rational connection  APD fails  provision severed. If it can't be severed  bigger problem with the law.

(Can only use ancillary power doctrine where the provision is a small part of a larger scheme.)
 
Assisted Human Reproduction - suggests looking at the validity of the Act first (because the whole act could also be ultra
vires?)
 
Quebec v. Lacombe - aerodrome complies with federal law, but zoning by-law added to outlaw it - adjusts the GM test -
sets new precedent on the rational branch – must be a rational connection and must be functionally integrated – further
the scheme of the act – must be complementary, not supplementary, (this issue was not a ‘serious intrusion’ according
to the court)

(paramountcy doesn’t apply here cos it’s not in conflict as such). NB make notes on when different doctrines do and
don’t apply and state in exam.

Confused as to the outcome here SCC says there is a functional fit, which is to control land use, BUT interjurisdictional
immunity applies.
 
Excerpt from Ryder - all the overlap is necessary in the modern world but leaves provinces open to federal paramountcy.
 
Applicability: the interjurisdictional immunity doctrine

 IJI is grounded in exclusivity of jurisdiction - not overlap, provincial cannot encroach.

 There needn't be a conflict to claim immunity.
 Don’t like this doctrine very much because dominant model = overlapping, concurrent jurisdiction.
 Only federal cases are successful, in principle could work for a province.

 Typical Areas:
o Bell - Quebec passed a minimum wage law - of general application, wanted to apply to Bell Canada also -
it wanted immunity because it was a federal undertaking.
 S125 CA "No lands or property belonging to Canada or any Province shall be liable for taxation."
(e.g. post office building - they pay charges in lieu of taxes or similar, for services)
o Aeronautics - has been applied often, though some have been unsuccessful.
o Labour relations (only about 10% of the work force is federally regulated) - Betts J - Bell Canada did have
immunity - the pay of workers is a core part of that undertaking - just cos the feds hadn't exercised their
right to make a law, didn't mean provincial law should apply. Within the core of that federal undertaking.
o Indians and lands reserved for Indians - this is changing, because they have rights under s35 of the
Charter.

Bell Canada – minimum wage in banks – federal undertakings have immunity ??

Canadian Western Bank - provincial legislation about insurance. Tells us where IJI should apply and limits. IJI will only
apply when it hits a core part (historically this didn’t have to be the case). IJI Could in principle work against federal
government. Why shouldn't it apply to provinces - government can always use paramountcy.
... we do not think it appropriate to always begin by considering the doctrine of interjurisdictional immunity. To do so could
mire the Court in a rather abstract discussion of “cores” and “vital and essential” parts to little practical effect …
interjurisdictional immunity is of limited application and should in general be reserved for situations already covered by
precedent. This means that it will be largely reserved for those heads of power that deal with federal things, persons or
undertakings, or where in the past its application has been considered absolutely indispensable or necessary to enable
Parliament or a provincial legislature to achieve the purpose for which exclusive legislative jurisdiction was conferred, as
discerned from the constitutional division of powers as a whole, or what is absolutely indispensable or necessary to enable
an undertaking to carry out its mandate in what makes it specifically of federal (or provincial) jurisdiction. If a case can be
resolved by the application of a pith and substance analysis, and federal paramountcy where necessary, it would be
preferable to take that approach...

Quebec v. COPA – Built aerodrome on agricultural land without getting the permission of the body regulating agri-land.
It was federally registered under the Aeronautics Act. It was challenged, but interjurisdictional immunity precluded the
Commission from ordering the dismantling of the aerodrome.
IJI applied to aeronautics, a traditional protected branch where intrusion might defeat the purpose of the jurisdiction.
Provincial law is inapplicable. (Paramountcy doesn’t apply here)

Is the provincial law valid? Yes. (92(13,16) or 95)

Test for applying IJI:
1. Does it invade on a protected core of federal competence? Yes. Aeronautics (valid under POGG)
2. Is it serious enough of an invasion ? Test: does the provincial law impair the federal exercise of the core
competence? Power to location airports is an essential and indivisible part of aeronautics and the provincial law
effectively removes the power of feds over agricultural land.
Legal vacuum – feds don’t regulate private aerodromes (you could register it, so long as other could use it)
 If you let the provincial law apply, then parliament loses the choice not to regulate (there’s to make)
 They lose freedom to make policy too – they must create a conflicting law, in order to use federal paramountcy.
 Legal gaps are the heart of a liberal democracy – don’t need to legislate.
o If a problematic gap is created, then the government, not courts should do something about it.
A narrow doctrine – focus on watertight cores is in tension with double aspect and co-operative federalism. It could
“intruded on settled competencies and introduce uncertainties for new ones” (McLachlin – AG Canada v PHS Soc)
 
Operability: the paramountcy doctrine – is there a conflict?

Ross v. Registrar of Motor Vehicles 1975 – (charged under CC for impair driving – given restricted licence by judge –
registrar took licence away under provincial law). Is this a conflict? Provincial law invalid by federal paramountcy.
 Held: both laws are valid, and both may stand – Test: operationally non-contradictory.
o BUT is it acceptable to have to give up benefit of federal law?

Multiple Access 1982 – Ontario Securities vs Canadian Companies

 repudiation of covers the field
 Inoperable only where you cannot consistently be ruled by both – this is perfect governmental harmony.
 Also suggests that dual compliance is impossible if it frustrates the purpose of the federal law (see below)

Bank of Montreal v. Hall – Bank Act vs Provincial Limitation of Civil Rights Act- borrowed money with machinery as
collateral – couldn’t pay loan – under BA equipment seized without notice – PLCRA requires to give notice of seizures or
waive that right. Is there a conflict?
 Held: Yes. There is a conflict. Both valid but provincial law inoperative by federal paramountcy.
o There is possibility of dual compliance, technically, but would frustrate federal purpose. (to create a
nationally uniform security interest)
 Federal law does impinge on provincial, but considered necessarily incidental to the purpose.
 Two part test for conflict: 1) actual operative conflict? 2) does it frustrate the purpose of the federal law?

Rothman, Benson and Hedges v. Saskatchewan – s6 of the Tobacco Control Act SK (can’t advertise in places with under
18s), inconsistent with s30 of the federal Tobacco Control Act (allowed to sell cigarettes, display products, signs and
prices).
Federal government wanted to support the provincial legislation, because this supported the federal policy, that they had failed to really get to
similar things through.
 Held: not inoperative by paramountcy. They are not inconsistent. Retailer can either not admit person under 18
or not advertise.
 What is purpose if each?
 Federal purpose to combat the public health problem. Provincial purpose to circumscribe the scope of s19 of
the federal act, being more specific about the prohibitions.
 By allow retailers to display products, parliament did not give a right to display/advertise.
 
Alberta v Moloney – uninsured driver crash – province pays victim and claims against M – M files under federal
Bankruptcy Act and his debt is discharged – because he did not pay in full Alberta suspend permits and licences under
Traffic Safety Act AB.
 Held: In favour of M. Section 102 of the TSA is constitutionally inoperative to the extent that it is used to enforce
a debt discharged in bankruptcy.
o Purpose of BIA: “the equitable distribution of the bankrupt’s assets among his or her creditors AND the
bankrupt’s financial rehabilitation”. Purpose of that section of TSA – essentially a debt collection
mechanism.
 Test for operation conflict/”impossibility of dual compliance” – problematized – strictly speaking
these can operate together – very high standard for the test, apply with restraint (letter of law)
 BUT - Whether the debtor pays or not, the province, as a creditor, is still compelling
payment of a provable claim that has been released. It is an unconscionable choice.
 Frustrates purpose – had the Feds wished to create an exception for MVA debts, they would
have said so in the act. (effect of law)
 “In keeping with co-operative federalism, the doctrine of paramountcy is applied with restraint.” – necessitates
a very narrow understanding of the first part of the test.
Peace, order and good government (the POGG power) – Gap - emergency powers - national concern.

Gap power was used by privy council for weird left overs. Today, not really used as much, new/innovations should try to be interpreted under a
head of power if possible, because otherwise Feds would have far too much power.
Gap ≠ residual, which refers to the whole of POGG and should be interpreted restrictively.

Emergency Powers
Mainly seen w/ War Measures Act (1914), and now Emergencies Act.
 One condition – an actual emergency . Nature of the power:
o Emergencies are, by their very nature, temporary (and have never been normalized so far in Canada)
The law only continues to have force until the emergency is over.
 The power sweeps away all provincial heads - there is no division of powers - this is the key to when it is used, is
when it has to do this.
o This is concerning for provinces. Can also sweep away civil liberties.

Anti-Inflation Act Reference – Wage and price controls applicable to federally regulated sector, but also across the
board in professions and in large companies over 500 people. Upheld 7-2 under emergency power.
o Majority (Laskin) set very low test for emergency powers.
o Rational basis. Should be ‘obvious’ when it’s an emergency. Don’t want to tie up the government in non-
elected officials hands. Do not have to state that it is an emergency, or tell us or evidence what the
emergency is, and can justify ex post facto.
o Dissent (Beetz)
o Extraordinary nature of the power  be explicit about it's use. Parliament must state that they are.
 Parliament relies on preamble, no proclamation.
 Many things are of serious national concern that would not justify the use of emergency power.
Emergencies Act –
o Must be declaration of emergency, and must be confirmed by parliament. The provinces must be consulted, in
an international emergency, 'to the extent possible', higher standard for other situations. Compensation.  

POGG and the regulation of the environment

Zellerbach - contravening s. 4(1) of the Ocean Dumping Control Act – wood chips, no damage – had permit, but not for that
location – argument that it is ultra vires parliament because it’s within a province.
o Held: against Zellerbach – it is not ultra vires parliament. Valid under national concern doctrine of POGG power.
o 91(12) fisheries, its not enough. Basis for federal law on marine pollution generally in provincial waters cannot be
found in any of the specified heads of power
o National concern is distinct from Emergency –new matters and those that have become nat. concern
o Must have a singleness, distinctiveness and indivisibility (SDI), which clearly separates it from matters of
provincial concern.
 Provincial inability – clearly extra provincial, clearly distinct from fresh water pollution.
 “distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with
the fundamental distribution of legislative power under the Constitution.”
 Existence of international agreements on this matter
 Scale of impact on provinces must eb reconcilable with the divisions of power.
o Oldman River - environment is not enumerated and both feds and provinces may make laws (in
provincial head of power)
Re-emergence of 'national concern'.
o Given its modern interpretation in the Temperance case.
 Beyond local/provincial and it is of concern to the whole dominion. Expanded to prevent
emergencies.
o Munro v NCC - single matter of national concern.
o Radio Ref - no mention of national concern. Implication that POGG also applies to anything that isn't
explicitly assigned to either level.
 o Jones v AG New Brunswick - federal institutions are obviously beyond the provincial power
o Anti Inflation Act - questions how far the national concern doctrine may reach.
Economic Regulation - Purpose of confederation was to create an economic union. Colonies would be better off if they
co-operated.
Evidence of integration: Transcontinental railway, Federal parliament has strong economic powers, requirement of
common market.
o Positive integration: Banking etc, interprovincial transportation, postal service
o Negative integration (stopping them from being separate): section 121, "all articles of growth, produce or
manufacture" shall be admitted free into each of the provinces. i.e. stop interprovincial tariffs.

Provincial powers - s.92(13), s.109 ownership of natural resources, and provincial tax powers (usually of consumption)
give the provinces power over business. Taxes are a very important mechanism for policy implementation.
o NB: legislative power is distinct from the rights of ownership (e.g. uranium in Saskatchewan)

Black v. Law Society of Alberta – law banning intraprovincial partnerships.

o Held: unconstitutional. Violates s. 6(2)(b), which guarantees a citizen or permanent resident the right to pursue
the gaining of a livelihood in any province.
o Federation goal of integrated economic and political union – economic integration central to scheme. Citizenship
and nationhood rights and responsibilities are corollaries.

CEMA v. Richardson – out of province egg-producer with no quota. Trade and Commerce 1 – interprovincial and
international vs s6 Charter. (last vestige of economic aspect of this)
o Held: law is not anti-Charter (s6). couldn't find that the primary purpose of the scheme was to discriminate
among persons primarily on the basis of province of present residence.
o Move to s.6 reflects a 'human rights objective' - guarantees mobility of persons not as a feature of the
economic unity of the country, but to further a human rights purpose.
o Pith and substance analysis used – not primarily to discriminate.
o Dissent – both economic and human rights in s6, plus this is arbitrary and silly. Not reasonable under s1
(historical accident).

Queen v. Klassen – grain elevator and didn’t record deliveries under Canadian Wheat Board Act Trade and Commerce 1
o Held: Constitutional.
o Broad interpretation of Trade and Commerce.
o Controls in these two sections are mechanisms by which the scheme of the Act is done. Interference
with property and civil rights is necessarily incidental to the true pith and substance which is the
regulation of trade and commerce.
o Power to ban local trade was an incidental effect.
The federal power over general regulation of trade – GM
o General regulation is aimed at the economy as a single regulate unit - feds can regulation the forest and
provinces may regulate the trees. Combines Investigations Act tries to achieve this.
o Wish to strike a balance between property and civil rights and regulation under trade and commerce.

GM of Canada v. City National Leasing –

Gives us the 5-point test for use of the Trade and Commerce 2 - General trade power. Combines Act (Civil action).

1) Impugned legislation must be part of a general regulatory scheme

i) Elucidation of prohibited conduct
ii) Creation of investigatory procedure
iii) Establishment of remedial mechanism
2) The scheme must be monitored by the continuing oversight of a regulatory agency
3) Legislation must be concerned with trade as a whole rather than a particular industry.
4) The legislation should be of a nature that the provinces jointly or severally would be incapable of enacting -
provincial incapacity (similar to Zellerbach, but is more specific that it is constitutional (legal) incapacity)
5) The failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful
operation of the scheme in other parts of the country. (practical effects of non-cooperation)

These factors are neither exhaustive or all necessary context dependant.

Only 2 cases on the general trade power since GM:

Kirkbi AG v. Ritvik Holdings – Kirkbi owned the patent, when expired Ritvik produced their own - Kirkbi failed to
assert a trade mark – wanted declaration that Ritvik has crossed s7(b) of the Trademarks Act, which asserts a civil cause
of action (unregistered trademark). R challenged this - section ultra vires by section 91(2) because it is not linked in any
way to the trademark registration scheme in the act.
o Held: constitutional.
o Applied GM ‘general trade’ test to find pith and substance, along with ancillary doctrine test (is the act valid
after finding for it under pith and substance).
o There wasn't a big upset here, we all knew it was federal, this sits as an affirmation of federal regulation.
 
Reference re Securities Act
The factors from GM General Trade were applied in such a way as to hold against Canada in every possible way.
o The risk of a GM style test is that it creates uncertainty - it's not predictable.
o Application of the GM test that came out the other way, power is cut off.
o Perhaps more to do with Quebec separatism than anything to do with trade and securities.
o Big loss for the government.
o Securities is a shared field - only because federal jurisdiction was denied in the early cases in Privy
Council.
o Dominant tide is towards co-operative federalism, but must always keep the balance.
*insert more definitive reasons here*

Are there other ways of strengthening the economic union…

Methods:
 Constitutional reform
 Intergovernmental co-operation (e.g. reduce trade barriers, and set harmonized standards)
 International agreements (there are a lot…). Trade agreements are of primary interest - most of this falls under
interprovincial and international trade
Federal powers over criminal law and procedure
Margarine Reference
o Held: although the prohibition on sale, manufacture and possession of margarine was ultra vires parliament, the
prohibition of importation could be upheld under the federal governments power to regulate foreign trade and
it could stand on it's own apart from the rest of the regulation.
o Test for the criminal law power
 Form: Prohibited Act and Penal Sanction
 Purpose: Prohibition must have been enacted for a criminal public purpose. (public peace,
order, security, health, morality)
o An economic purpose cannot be a criminal law purpose (though this has been challenged)

Malmo-Levine - banning of simple possession of marijuana constitutional?

o Does there have to be harm to be criminal law?
o It was upheld to protect vulnerable groups from self-inflicted harm.
o BUT dissent says you must prove harm in general

R. v. HydroQuebec - Canadian Environmental Protection Act – Hydro Quebec charged with exceeding PCB emissions -
argued ultra vires (s34 and 35) - Federal government argued for the legislation under both POGG and criminal law
powers.
 Held: Appeal allowed. A narrow majority found that it was exercisable under the criminal power, and therefore
didn't address the POGG powers. Dissent said no to both.
 NATIONAL CONCERN - Constitution should be interpreted in such a way are both levels of government can take
ample measure to protect the environment, while maintaining the general structure of the constitution. This
isn't consistent with an enthusiastic adoption of 'national concern'.
 CRIMINAL - McDonald confirms that it is 'plenary in nature' BUT - it cannot be employed 'colourably', to invade
areas of provincial power.
o it's an 'interest threatened' which parliament can 'safeguard'/evil it can suppress. Of superordinate
importance. (Be surprising if they couldn’t exercise plenary powers + international obligations).
o Argue that the power to regulate a substance is so broad as to encroach on to provincial powers. – this
focuses too narrowly on individual provisions, there’s not general ban, just specific substances. Not a
general regulatory power.
o Similar in structure to their food and drug laws, which do fall under criminal law when related to unsafe
food. Not concerned about incidental effects but about whether the regulation is prohibiting evil.c
 Criminal power and national concern act differently - the latter takes over a whole regulatory area, the former
seeks by discrete prohibitions to prevent evils falling within a broad purpose. Criminal law in no way constitutes
an encroachment on provincial power.

RJR McDonald v Quebec – wanted to ban advertising of cigarettes – challenged as ultra vires parliament (plus a Charter
challenge) – Up held under criminal law power, POGG, not discussed.

 Held: Act was not colourable because it protects from serious health hazards. The evil that the law is addressing
does not have to be approached directly. Subject was not one that was commonly recognized as being criminal
does not necessarily invalidate it.
 “The criminal law power is plenary in nature, defined broadly, and not frozen in time or confined to a fixed
domain of activity. The legislation must not, however, be colourable; some legitimate public purpose must
underlie the prohibition.”
 Prohibited 3 things. Penal sanctions w/ - created a prima facie indication that the Act was criminal law. The Act
also has an underlying criminal public purpose directed at some injurious effect upon the public. Effects known
at time.
  "Health" is not an enumerated head under the Constitution Act, 1867  , and may be dealt with by valid federal or
provincial legislation depending on the circumstances and nature and scope of the problem in question
Provincial power to regulate morality and public order
Provincial heads of power:
 92(14) - admin of justice
 92(15) - ancillary power to impose punishment for provincial laws
 92(6) - provincial prison - also ancillary- i.e. must be a valid statute/regulation that is responds to.
 92(16) - permits local standards of morality. Court has give provincial power wide scope and favours
concurrence: province deter crime, suppress conditions that favour crime, and compensate victims.

Chatterjee v. Ontario - Balance of probabilities the property was the proceeds of crime in - Chatterjee arrested for
breach of probation - 29,000 $ small bills in his car plus paraphernalia - wasn’t charged with any offence.
 Is Ontario's Civil Remedies Act (authorizing forfeiture of proceeds of unlawful activity) ultra vires Ontario,
encroaching on criminal law powers?
 Held: No, it is within provincial power. Purpose of the law is to deter crime - 91.27 and 92.13 (and compensate
victims - impacts provincial resources).
o Different approach to crime deterrence, which is usually prohibition and penalty – appellant says,
another penalty
 BUT dominant purpose is to make crime unprofitable -valid provincial objective
 There is no operational conflict between CRA forfeiture and CC, and it's not colourable.
o pith and substance - property based authority to seize money tainted by crime and allocate it to
remedying the effects of crime. Take profit out of crime.
o Classify the character of the law - clearly CRA is Property and Civil Rights (or matters of a local nature…),
but much of the CC does too - overlaps inevitable.
 When does suppressing crime become criminal?
o A province may enact measures to deter criminality, if it is in a head of provincial power and don't
interfere with functioning of criminal code (including sentencing).
 e.g. Ross v Register of Motor vehicles - can take away licence provincially after someone has
been penalized on a federal offence. Province can enact its own consequences to criminal
offences as long as they don't interfere.
 People are irked by this case because there's no Charter protection for an individual in this case - Chatterjee was
never charged, and as such the protections for people charged with an offence under the Charter didn't apply.
There are concerns that this will be applied and enforced arbitrarily.
 
Quebec v. Canada - Parliament tried to repeal and destroy the 'long-gun' registry (CFR) that they had created, in the
spirit of co-operative federalism with the provinces. Quebec challenged Canada because they said they couldn't get rid
of the registry under the criminal law power, Quebec wanted it be handed over.
 SCC upheld Quebec CA: It is a valid exercise in criminal power. Quebec has no right to the data. This flows partly
from the fact that this was entirely federal legislation not dependant on any provincial legislation. Might be
different if there was interlocking legislation. Written text has primacy - it's federal and there's no restriction on
what the feds can do with it. Would undermine parliamentary sovereignty
 Is s29 (repealing the law) ultra vires parliaments criminal law?
o Pith and substance - look at provision in context of act - is it colourable? Courts are reluctant to find this.
o Quebec  stop provinces getting hands of CFR it's encroaches on the provincial ability to exercise
powers in relation to administration of justice.
 Confuses the matter with the motives and means.
o Canada says the subject matter is the same as the original act. Court agrees that the pith and substance
comes from the scheme that it is undoing - related more to public safety than property here.
 Classification - does s29 come under the criminal law power?
o Quebec says, doesn' prevent crime, but court says data was collected through criminal power, so it was
criminal in nature. It is "in relation to the criminal law power"
Instruments of flexibility in federalism
Purposes of instruments:
Promote community values - legislative heads of power may not be sufficient. Important in a diverse federation
o e.g. medicare - access based on need not wealth. Often seen as a critical feature of Canadian citizenship.
Increase efficiencies – reduce duplication and help poor provinces.
Enhance flexibility – when you can’t use heads of power.

Spending Power – feds unlimited power to tax, province only direct. Collect money and spend it on provinces – .
There's no clear provision for it, but the power to raise taxes, power to raise funds, power over public property + no
restriction.
3 kinds of social programs:
o Direction payments - e.g. pensions, gst refund (though they do have the sales tax power, sop not pure power),
EI, child benefits.
o Shared-cost programs - e.g. health care (Canada health transfer), social assistance (conditional grant - no
residency period)
o Equalization payments - i.e. 36(2) CA 1982  commitment to a certain level of social services across the board.
 Designed to help provinces with less fiscal capacity (since feds have money raising powers, and
provinces have fiscal obligations)

Provinces also have a spending power, but they don't have resources or incentive. (feds want national social union)
o Provinces can pay the profits of casinos in the province and put that money into reserves (regulated federally).
o Direct taxation 'for any provincial purpose' - interpreted early to mean any purpose that they feels is to it's
benefit.

Intergovernmental Agreements - there's around 2900 - lots. Can concern all sorts of things. E.g. Internal trade.
Should these be subject to judicial enforcement?
o In international law, you can completely cut off relations with the country, if you can afford the political costs. In
intergovernmental agreements, this is nearly impossible (except secession) because citizens of the province are
also citizens of the country.
o Principle of co-operative federalism is there to encourage voluntary co-operation.
 What did the secession reference mean when they say that this is a key part of Canadian federalism?

CAP Reference (shared cost program for social assistance - any party can back out with 1 years notice - feds didn't give
notice, just changed the amount of money) - BC says they should be hold to their obligations - doctrine of legitimate
expectations. A reliance interest/public law contract.
o Held: SCC found in favour of the Feds, based on parliamentary supremacy.
o Making them enforceable might encourage more negotiation and discussion - also make it harder for new
governments to back out at short notice. Sanctions could promote democracy.
Reasons against.
o Could dampen willingness to enter into agreements in the first place. (para 2 Quebec v Canada)
 BUT - realistic when this is just a fact of life?
o Could lead insidiously to change in the formal division of powers in interpreting the terms of agreement in court
 BUT - so what? Mostly based on judicial interpretation anyway.
o Enforcing an agreement could infringe upon parliamentary supremacy.

Quebec AG v Canada AG
 See case brief
 Feds can create crimes under criminal law power, and can also abolish those crimes under that power.
 Interesting for how the principles of co-operative federalism should inform ????
o Very close decision 5-4 - dissent quite influential.
 
 The bill was a classic example of co-operative federalism - provinces worked together.
  Quebec wanted the data (which they had spent a lot of money on)
o Majority say that the written text has primacy - it's federal and there's no restriction on what the feds
can do with it.
o Would undermine parliamentary sovereignty
o Legal uncertainty
 BUT it's CL - one precedent at a time.
o Damage practice of co-operative federalism.
 
 Does co-operative federalism prevent parliament from disposing of the data?
o Quebec argues that cooperative federalism prevents the feds or provinces from acting in a way that
would hinder cooperation between orders of government (esp in spheres of concurrent jurisdiction)
o BUT no. co-operative federalism provided flexibility in separations of powers doctrines (fed
paramountcy an interjurisdictional immunity - justifies relaxing watertight compartments) There are limits to
cooperation.
o The principle of cooperative federalism, therefore, cannot be seen as imposing limits on the otherwise
valid exercise of legislative competence - see securities act reference - while flexibility and cooperation are
important, they cannot override separation of powers.
o This principle does not help quebec.
o Idea that quebec should get the data was also rejected - no legal basis was established

Dissent
 Appeal should be allowed in part.
 The act goes beyond the stated purpose of ending the long gun registry when it provides for destroying the data.
This has significant effect on the provincial parliament 9esp givent hat they had contributed to the data)
 The fed-prov partnership with regards to firearms control is consistent with the spirit of co-operative federalism
- question is about the legislation that dismantles this partnership.
o We don’t want to place the partnership in jeopardy and when terminating it, they should take into
account the foreseeable consequences.
 Consider whether it is constitutional under ancillary powers, given it's encrochment into provinces.
o The FA legislatuon effectively took away that regulatory power from provinces while at the same tim
egtting them to administer the national database - the provincial databases seemed to be come
unnecessary.
 Consequences of the loss of the data are not only financial but would also compromise the
usefulness of a future provincial registry.
o The government could have implemented this without the provinces but chose not to.
o Destruction of data is not necessary to abolition of registry - doubt that it can be linked to the act on the
basis of rationality.

Access to justice and the rule of law

Trial Lawyers Association of BC et al v AG BC

Trial Lawyers of BC
 BC imposes court fees - promote efficient use of resources. BC imposed highest fees in the country (though
graduated). (NB: 10 days is a very long trial - pointed out by the dissent, represents the exception rather than the
rule)
 Argument is that the court fees are unconstitutional.
o Majority (McLachlin)
 S96 is a limit on provincial power to impose fees - unwritten principle (necessary implication) of
access to justice.
 Unwritten principle of the rule of law (closely intertwined with access to justice - need it to have
effective rule of law).
 Together lead to conclusion that court fees are unconstitutional.
 The working middle class are left out.
 o Dissent (Rothstein)
 Rule of law is important (para 96), but it does not include a constitutional basis for outlawing
court fees. There's nothing to create a judicially enforceable right of access to justice, as the majority
seems to have done.
 Argues for supremacy of written text, or principle.
 Even if there was a way to find it unconstitutional, he wouldn't do it in this case. The
scheme arguably upholds access to justice by giving exemptions and shortening trials, allowing
more people in.
 Financial burden can be divided between the two parties by award of costs.
 Judges have a key role in managing their court rooms - they needn't let the
parties go on. (in this case both were largely unrepresented, which lengthened the trial).
 The report on the impact of the 10 day trial is simply not the norm.
o Impact of this decision? Very little?
 Lawyers fees are the bigger cost
 BC had already changed it anyway.
o Cromwell's judgement
 There is a common law right of access to the court - can only be abrogated by legislation/clear
language, ad regulations made under the statute must be consistent.
 Here the regulations are not consistent because we have narrowed the right too much. It's ultra
vires.
 Convention says courts shouldn't deal with cases constitutionally unless there is no
other way of resolving the case.
 
The bigger picture
 Unwritten principles are here to stay and can be the source of rights for individuals. (They have always been
around for interpreting, but weren't traditionally used as rights conferring - this is new)
o They fill in gaps (QSR)
o They allow the constitution to keep up with the times (QSR)
 BUT there are draw backs and dangers
o When you untether rights/remedies etc. from the written texts, you are giving enormous discretion to
judges. It creates judicially create rights, out of judicially created principles.
o Leaves you with no section 1 reasonable limit, and no section 33 override.
 Who guards the guardians? (the words of the text have traditionally imposed some limit)
 This can also test judicial legitimacy. They can base stuff on the written text and that brings
some link to democracy. Unwritten principles give far for space for follie.
 Caution is definitely appropriate here - don't use unwritten principles if you don't need to - last resort.
 
Differences between QSR and TLA
 Principle of access to justice is one that the courts will be able to control - it's integral. They have the expertise
and competency to know what the impact of the rights based on this principle will be .
 In TLA there is no provincial-federal conflict, which might make the courts more reluctant to interfere.
  
 
Federalism -
 Can't over emphasise important in the day to day governance
 Federalism is a manifestation of the basis idea of constitutionalism and the rule of law, that there are limits on
the exercise of power, and it requires reasoned justification.
 (constitutionalism and) Rule of law as an unqualified human good.
o Under threat? Return of dictators and military rule…