Professional Documents
Culture Documents
WHAT IS A CONSTITUTION?
Supreme law of Canada; any law inconsistent w/ provisions is of no force or effect
Includes: Canada Act 1982; Amendments; Schedules
Constitutions deal with the structures, procedure and powers of governmental institutions and the nature and
scope of individual rights and responsibilities in the face of public power
Elements of Constitution
o Parliamentary democracy
o Federalism
o Individual group rights
o Aboriginal rights
o Principle of constitutionalism
o Rule of Law
Sources: Common law, ordinary statutes, conventions, quasi-constitutional statutes (Bill of Rights, Supreme Court
Act)
The Three Branches of Government
o Legislative: power to make law
o Executive: power to implement law
o Judicial: power to interpret law
CONSTITUIONAL INTERPRETATION
Constitutional Interpretation and Original Intent by Justice Ian Binnie (supplemental)
Original Intent (Dead Tree Approach)
o Judges interpret as closely as possible to intent of 18 th century framers
o Used by the US: Original Intent = have advanced history of intentions; Original understanding; Original
Effects
Living Tree Approach
o Judges have liberty to extrapolate words/meaning into written text of constitution
o Used by Canada because doctrine of original intent not aligned w/ modern world; based on spotty/ biased
views of historians
Dickson Approach to Purposive Construction
o The legislatures should not be solely responsible for evolution bc. leaves minorities rights in hands of
majority
o Meaning of rights and freedoms should be understood in light of the interests it was meant to protect:
constitution drafted with eye to future, courts are assigned to adapt principles to new circumstances
The Charter Override
o Existence of override suggests that framers expected courts to continue to develop it
o Power reserved to parliament/prov. Leg. To override certain provisions
Reference re Meaning of the Word ‘Persons’ in s 24 of the BNA Act 1928 SCC p 45
Facts: The GG summons qualified persons to the senate, subject to the Act. Every person summed shall become and be a
member of the senate and a senator.
S 24: The GG shall from time to time, in the Queen’s name, by instrument under the Great Seal of Canada, summon
qualified persons to the senate, and subject to the Provisions of this Act, every person so summoned shall become and be a
member of the senate and a senator.
Issue: Whether the words “qualified persons” in the BNA Act 1867 includes female persons? Whether women are eligible to
be summoned to and become members of the Senate of Canada
Decision: Women are not eligible for appointment bc they are not “qualified persons” w/in meaning of that section
Reasons: Anglin CJC (Mignault, Lamont, Smith JJ Concurring)
Method of Interpretation: Construe not merely words but the intent of Legislature (based on cause/necessity for
enactment), legislative scheme (based on comparison of several parts) and extraneous circumstances (Hawkins v
Gathercole 1855)
Internal Evidence:
o Words: (interpreted in light of everyday meaning: Chorlton v Lings)
Person, when standing alone prima facie includes all human beings. Paired with “qualified”
excludes criminals, minors, lunatics. Does it exclude women?
o Intent: Parliament has ability to change law, court will not impute intent to change law in absence of express
language
o Scheme: Sections 23,24,25,26,32 expressly excludes women from membership of Senate
External Evidence:
o Circumstances: The office of senator was new office created by BNA act + women were under legal incapacity to
hold public office. Application to women would = striking departure from common law
o Novel Issue: rights of women much discussed but not specific suggestion for women’s eligibility for appointment
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o Words: Lord Broughams Act: in all Acts words importing the masculine gender include female, unless the contrary
is expressly provided. However “persons” is not a word importing masculine gender = no application
Duff J: Concurring for Different Reasons
Reject idea that common law disabilities of women est. rule of interpretation for BNA act.
Language of Act as a whole ≠ presumption that leg/exec powers should be interpreted to preclude women, rather
interpreted to provide for adaption over time
External circumstance: Once women allowed to sit in HoC, principle of responsible government would require that
term persons of s 11 (privy council) be interpreted to include Women. However, this is not applicable to senate and the
rules of appointment are not open to adaption over time = women ineligible
CONSTITUTIONAL ARCHITECTURE
Constitutional Issues Reach Courts for Adjudication by:
1. Ordinary Litigation and Rules of Standing
a. Civil Cases: challenge validity of law that another party is relying on constitutional grounds
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b. Prosecution: Accused raise constitutional challenge
c. Rules of Standing: Whomever has sufficient legal interest can raise it before court. In past, Plaintiff must be
directly affected by it and have genuine interest in it. Now there can be “public interest standing”
i. Test: (Martland J in Borowski) [citizens can ensure that gov acts w/in const. bounds]
1. Person show that he is affected directly or
2. That he has genuine interest as a citizen in the validity of the legislation
3. No other reasonable/effective manner that issue may be brought before court
The Reference Procedure
Brought to SCC from federal cabinets (prov send references to prov appellate court)
Require litigants to notice AGs so they can defend their statute
Those interested must be present; Can have interveners (may be limited by court)
Produces: advisory opinion, IN PRACTICE considered as authoritative as other court judgements
Detractors think it politicizes judiciary by requiring consideration of hypothetical issues
FEDERALISM
INTRODUCTION (p 86-91; 190-207)
Ideas in Constitution Act
Constitutional Continuity: maintain same practices inherited from Britain (s 9-16)
Federalism:
o S 91: Fed gets residual power
o S 132: parliament can represent provinces in foreign relations
o S 22: provinces will be regionally represented by senate
Democracy: Representation; majority vote etc. (s 37 – 50)
Rights: S 93: minority groups + religious schools; s 132: language rights
What is Federalism? (Secession Reference)
Political power shared by two orders of government: the federal gov and the provinces
Each is assigned respective sphere of jurisdiction by Const Act, up to courts to control the limits of the respective
sovereignties
Recognizes diversity and autonomy of provincial government
Facilitates pursuit of goals by cultural/linguistic minorities which form majority in particular province (Quebec)
Federalism Theory:
Pros: Cons:
Protects minorities Limits both levels of gov
Incentive for provinces to sign on Inefficient
Economic continuity Resentment
System of checks and balances prevents tyranny Frustrates majority rule
Gives local control over local matters (regional autonomy) Reduces accountability (passing the puck)
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Evolution of Division of Powers: increased in overlapping jurisdiction
(intent of Framers = s 91 strong central government vs. s 92 caveats)
1. Projection of federal concerns in areas once reserved for provinces (health)
2. Breakdown of clear rationale for determining how responsibilities should be allocated (ie. Garbage collection local,
but pollution = international)
3. Changing role of gov: Increased concurrency results in pressures for growth of government = centralization
4. Community concerns: economic development erodes identities rooted in territory and culture; cooperative
federalism: techniques that introduce new roles in a way consistent w/ federalism and provincial responsibility
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S 91: no class including contracts and rights arising from them, except s 92(18) bills of exchange/promissory notes.
This would have been unnecessary to specify if authority over all contracts and rights belonged to dominion
Absurd result: if contract legislation falls under s. 91 then Quebec business practices (which has own civil code)
would be subject to fed. Legislature which undermines attempt to preserve their culture
2. Whether Ontario Act, assuming its w/in s 92, has provisions coming under s 91?
Appellants: fits under s 91(2) T&C
First of all: the business of indemnity contracts is likely not a “trade”…But we don’t need to rest decision on that
T&C sufficiently wide, but not unlimited; when read with s 91(2) = regulations relating to general trade and
commerce. If they were to have unlimited scope many other s 91 subjects would be redundant (s 91(15, 17, 18 etc).
T&C would then include:
o Political arrangements in regard to trade requiring sanction of parliament
o Regulation of trade in matters of inter-provincial concern
o General regulation of trade affecting whole dominion
Does not comprehend power to regulate the contracts of a particular business, such as insurance, within a single
province.
Russell v. The Queen 1882 p 104 (PC) [When Act deals with object + scope that is general = Dominion regulation (even if (1)
has opting in clause, or (2) incidentally affects prov jurisdiction]
Background: Canada Temperance Act 1878 enacted by dominion enable local option by provinces to opt in by majority of
voters in any city or country to prohibit retail sales of liquor. (except for those necessary by brewers, distillers and wholesale
traders). Anyone who sold liquor in violation was liable on summary conviction. Private citizen began criminal prosecution
under the Act against Russell, tavern owner, for selling liquor in violation of terms.
Facts: Russell prosecuted under Act for selling liquor in violation of terms. Says act falls under prov; not fed = ultra vires.
Canada Temperance Act: enable local option across nation to prohibit retail sales of liquor
Issue: Valid fed power?
Decision: Yes – because doesn’t fall under s 92. If a legislation has national consequence ie. The sale/custody of dangerous
goods = matter of Pogg w/ incidentally affecting 91(13)
Reason:
Does it fall under s 92? No:
S 92(9): No, (9) is licenses to raise revenue, not licenses to regulate trade
S 92(13):
o No bc law places limitations on sale of property dangerous to public which is related to crim law power (91)
and pogg;
o Not a civil right bc involved in public safety; designed for promotion of public order. It incidentally deals
with free use of things but not at its core.
o Laws which are designed for promotion of public order, safety or morals and subject those to criminal
procedure/punishment belong to subject of public wrongs rather than to civil rights
S 92(16): no: on its face was local nature through “opting in”, but purpose: achieve uniform legislation for traffic of
alcohol + promote temperance; condition of opting in does not make it merely local matter. The object and scope of
the act are still general, the provision for special application of it to a particular place does not alter its character
If it does not fall under s 92, then no further questions and = POGG
Analysis:
“Temperance = menace to national life of Canada so serious/pressing, parliament must intervene to avert disaster. An
epidemic of pestilence/plague = analogous” (snider)
Hodge v. The Queen 1883 p 107 PC [Double Aspect Doctrine: Liquor has a local and federal aspect]
Background: Pressure from temperance groups mounting in 1870s, Ontario enact Liquor License Act. Does not allow tavern
keepers to permit billiards to be played in taverns. Challenged it on conflicting with 1) s 91(2) T&C and 2) provincial leg.
Could not delegate law-making powers on Boards of Commissioners. Dismiessed by ONCA and PC
Facts: Hodge permits billiards at tavern, license removed under Liquor License Act
Issue: Act ultra vires of province?
Decision: No
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Reason:
A argues that regulation of liquor traffic does not come under s 92, then must be in s 91
Russell is not an authority to A’s argument. Russell and Parsons hold that “subjects which in one aspect and for one
purpose fall w/in s 92 may in another aspect and for another purpose fall w/in s 91”
Subject matter and legislative character of ss 4 + 5 of Liquor License Act
o Confined to Ontario = local in nature, delegation powers similar to those of municipal institutions
o To make regulations of police/municipal regulatory nature of local character for good government of taverns,
licensed for the sale of liquors by retail and maintain peace and public decency
o Does not conflict w/ provisions of Canada Temperance Act (which is not yet locally adopted)
Act is entirely local in nature (92(16) and the imposition of fine/penalty/imprisonment (92(15)
Authorizes appointment of license commissioners in each municipality: Argument that province can’t redelegate = false:
Prov have power to enact delegates w/in limits of s 92
Purpose: to preserve decency and repress drunkenness/disorderly conduct of taverns
Double Aspect Doctrine: Liquor = local + fed aspect: No conflict w/ Canada Temperence Act or T&C
Note: Russell accounts for the possibility that provinces may not opt in, but will enact their own legislation: “the provinces
might have passed a local law of a like kind in absence of a general law of Parliament of Canada”
Fort Frances Pulp and Paper v Manitoba Free Press Company 1923 p 138 [When war is over, based on clear evidence, must
repeal all interfering legislation, or it is ultra vires]
Facts: Regulation of price for newsprint. In War Measures Act, allowed dominion to do whatever it considered “necessary or
advisable for the security, defense, peace, order and welfare of Canada”. The dominion regulated price of newsprint in
series of admin arrangements. 1917: creation of the Paper controller, and Paper Control Tribunal who heard appeals.
Dec 1919 Controller order Fort Frances to repay excess amount above prices received from Manitoba Free Press. Frances
refuse. Affirmed by ONCA and D appealed to PC.
Issue: Is the War Measures Act ultra vires?
Decision: Appeal dismissed, Paper control still in effect, upheld under POGG since might still be war conditions
Reasoning (PC):
Under normal circumstances dominion ≠legislate control over paper manufacturers which interferes w/ 92(13) (set
out in Board of Commerce)
During war: the interests of individuals may have to be subordinated to that of the community in a fashion which
requires s 91 providing over s 92 aspects.
S 92(13) falls under s 91 in special times bc they extend beyond what s 92 can cover and is required to be addressed
by state as whole. Centralized power necessary in emergency situation. 92(13) is not repealed but new aspect of
the business of Government is recognized as emerging
Is this special necessary when war broke out and for some subsequent period after outbreak
During war: public need uninterrupted information in newspapers. Need to ensure supply to avoid shortage.
BUT the war is over, and there is no justification for continued exercise of exceptional interference which becomes
ultra vires . Need clear evidence that crisis had wholly passed
Late 1919, the war has passed
o Order in Council proclaimed war no longer exists, war conditions have ceased.
o 1918 expeditionary forces withdrawn and demobilized
o Country devoting energy to re-establishment
Governor in December 1919 repealed war measures act, but expressly kept paper control.
PC could not say that Gov had NO good reason to keep paper control, so must have thought war conditions might
still be operative…– no clear evidence that Gov thought crisis had passed.
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Ratio: When state over emergency is over, dom must repeal all war acts or = ultra vires; dom cannot ordinarily legislate to
interfere with 92(13) in province. POGG available in cases of “sudden danger to social order arising from outbreak of war;
when national life requires preservation; exceptional necessity”
Toronto Electric Commissioners v. Snider 1925 p 142 (AC decision reversed by PC)
Facts: Industrial Disputes Investigation Act 1907 enacted by the dominion in 1907; applied to mining, transportation and
communications undertakings, as well as public service utilities, and it was limited to those w/ more than 10 employees
Purpose of Act: enable employee/employer in work conditions dispute to apply to Minister of Labour for
investigation by board. If board appointed = strike/lock out prohibited. Board = function to settle dispute. If not
settlement = minister make dispute public
Application: mining, transport, communication, public service w/ 10+ employees
1914: Ont enact similar. Board appointed to inquire Toronto Electric. Commissioners sought an injudction alleging
that the Act was Ultra vires.
o ONTCA dismiss claim saying its not ultra vires: Majority: Ferguson:
o Avoided relying on pogg bc limits not clearly settled. Act was valid under 91(2) and 91(27): Cannot be
disputed that to deprive city of Toronto of power (due to union dispute) would hinder national
trade/commerce. Such dispute is matter of public interest + national importance
o ONTCA dissent: Hodgins: Pogg = emergency or matters of general Canadian Interest/importance. Act not
emergency. Deal with normal working conditions. Invades 92, even though labour relations should be
interest of whole community. Not supported by 91(27) because substantially in relation to 92(13).
Issue: Is the Act Ultra Vires?
Decision: It is ultra vires, labour relations is a provincial legislation
Reasons (PC): Lord Haldane
Cannot be upheld under 91(27) crim.
o The act rendered it unlawful for an employer to lock-out or employees to strike prior or during the
reference. Until reference concluded, neither able to alter those conditions.
o Obviously deals with civil rights. Not w/in dominion bc these are not merely ancillary penalties. In P&S it is
interfering with civil rights.
o The act is not aiming to make “striking” generally a new crime. Under common law employer has right to
lock-out. Act cannot be validly sustained.
Cannot be upheld under 91(5) T&C
o 91(5) cannot be relied on to enable dominion to regulate civil rights in the province
POGG?
o Russell: NOT a General principle that mere fact that Dominion legislation is for advantage of Canada, or will
meet a mere want felt throughout Dominion = competent under POGG if cannot be brought under s 91.
o If subject matter belongs w/in any of enumerated heads of s 92, it belongs exclusively to Provincial
competency
Except in extraordinary peril = highly exceptional
Can only justify Russell by saying at that date – temperance was an emergency…
Ratio: Labour relations are civil + local matter; POGG available when extraordinary peril to national life of Canada as a
whole, highly exceptional
O’Connor Report:
Effect of “notwithstanding” clause extends exclusivity given by opening words - enumerations of s 91 = simply
examples
“Deeming clause” = exclude s 92. 16 (any local element of enumerated subject)
Error
o Parsons: too close reading of words of s 91
o Russel okay
o Tennant v Union Bank: s 91 declares that notwithstanding anything in this act, leg authority of parliament
shall extent to all matters coming w/in enumerated classes; parliament is authority
o Prohibition reference: s 91 sole grant of power limited to emergency circumstances = paralyzes essential
law making ability, breaks down the confederation
William Lederman: favours balanced federalism: unity and diversity btw strong dominion and autonomous provinces
AG Canada v AG Ontario (Labour Conventions) 1937 PC p 169[Interpretation of s 132 Treaty power must bow to water-
tight compartments set out is ss 91,92]
Facts: 1919 Canada sign Treaty of Peace to secure humane conditions for workers. 1930 International Labour Organization
of League of Nations adopts conventions of hours of work/minimum wages/days of rest. 1935 Dominion ratify conventions
and enact statutes. Provinces fear autonomy and oppose.
Issue: Is the Act under s 132? Is it under ss 91/92? Is it valid based on national dimensions?
Decision: Ultra Vires to all 3 questions
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Reason:
SCC Split: For: Canadian status = dominion power to enter treaty obligations under s 132 (even if terms come into s 92 as
per radio + aeronautics). POGG gave dominion power to implement them
SCC Opposed: Conventions adopted by Canada on own behalf, not under s. 132. POGG does not give dominion power to
implement; prov consent is necessary for validity of treaty under s 92
PC:
In British Empire: making of treaty = exec act; but implementation of treaty even if ratified ≠ force of law. Province
must agree
Valid under 91/92? SCC say exemplify Aeronautics + radio. PC says
o Aeronautics: imposed treaty btw BE and foreign countries = not applicable
o Radio: matters did not fall under s 91/92 = not applicable
The distribution of power is based on classes of subjects, if treaty deals w/ that class = fall under that legislation.
Treaty must bow to water tight compartments of 91/92.
Dominion cannot merely make promise w/ foreign country + have authority inconsistent w/ const.
Atkins: Parliament has right to engage in treaty, NOT right to legislate it into s 92
VALID PROVISIONS:
AG BC v AG Canada 1937
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Criminal code prohibit 1. Selling goods at prices that discriminate amoung competitors and 2. Selling goods at prices
designed to eliminate competition.
Result: SCC majority = valid; PC affirm
AG Ontario v AG Canada 1937
Dominion Trade and Industry Commissions Act:
1. To authorize admin approval for agreements amoung businesses to restrict undue competition
2. To establish national trademark of Canada standard
SCC invalid both: #1: civil rights issue (Natural Products Market); #2: standard = civil right of novel character, parliament
does not possess competence to create new civil right
PC: #1 invalid; #2 Valid: under power to create uniform law of trademarks, Dom ok extend novel fields
AG BC v AG Canada 1937
Farmers Creditors Arrangement Act: est. admin boards to impose compromises/ extensions of farmers obligation to their
debtors
SCC + PC: upheld under s 91(21) dominion power to legislate on bankruptcy and insolvency
K. Swinton The Supreme Court and Canadian Federalism: The Laskin-Dickson Years
Section 91 + 92
o POGG (opening words): used in limited circumstances by court
o Classes are independent source of fed power, opening words give residuary power to deal with matters no
in 91 or 92
Competing classifications (Three Steps)
o 1. Identify Matter of Statute
Statutory context
Purpose of legislation, as illustrated by legal history, gov reports identify problem that trigger leg
Focus on purpose
o 2. Delineation of scope of competing classes
Opportunity for overlap
Double Aspect Doctrine: some laws have prov and fed purpose
Precedent and history
Federalism concerns, beliefs, optimal balance
o 3. Determination of class into which challenged statute falls
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privatization, costs and quality of health, and policy against tier system of health access, but this was absent
through hansard
o SO: purpose/true nature relate to matter of crim law
Searching for Provincial Objectives:
o Privatization concerns were incidental to paramount purpose
o Concern for health and safety of women = no record to indicate that abortions pose danger
o Privatization concerns were not brought up until second reading of act
o No evidence regarding cost-effectiveness or quality of medical services delivered at private clinic
o NS propose against surgeries outside hospital, but why didn’t act prohibit surgeries generally then?
o If provinces policy were to prohibit performance of any surgical procedures outside hospitals, it would have
said so (based on reasoning in Westendorp)
o The fines were not measure for enforcement, but penalties to punish abortion clinics as inherently wrong
Pith and Substance Test:
o 1. Intrinsically (Sound) + Extrinsically
Extrinsic Evidence: Hansard (debates); timing of when act was brought up; looks like attempt to replace s
251 of CC; focus not preservation of single-tier system
o 2. Effects:
Legal effects: Opposes heavy fines on people who open up abortion clinics
Practical: reduces access to abortion procedures in the province
o Conclusion: in P&S: law dominant purpose is criminal, to prohibit certain activity on grounds of public morality
Multiple Access Ltd. v. McCutcheon 1982 p 237 (Double aspect over regulation of insider trading in securities of fed.
Incorporated companies)
Facts:
Prov: Ontarios Security Act: prohibit insider trading in shares on TSX
Fed: Canada Corporations Act: identical provisions, applicable to corporations incorprorated under fed law
Shareholder initiates action under prov. Act. R argues that prov. Act is not valid to regulate trading of federally
incorporated companies. Even if prov act does apply, Doctrine of paramountcy renders prov act inoperative on the
provisions which deal with this issue. The alleged insider traders wanted it to be under fed. Act because the
limitation period for initiating action under fed. Statute had already passed.
Issue: Whether fed act and prov act are both applicable? Does one need to be struck down?
Decision: Both statutes are valid and applicable
Reasons: Majority: Dickson J
Analysis
1. Are the provisions of the Canadian Corporates Act ultra vires the Parliament of Canada in whole or in part?
Resist regarding them as redundant to Ont. Legislation. Must be analyzed on its own. Also, many provinces do not
yet have insider trading legislation, so striking down fed = potential gap in present regulatory schemes
Does the matter in P&S fall w/in classes allocated to parliament?
o Yes deals with company law of federal companies, subject matter that is not w/in exclusive jurisdiction of
provinces
o Legislating federal companies = dominion. (John Deere Plow co v Wharton 1915) under POGG
o Extends to maintenance of the company, which is directly affected by insider trading
o A statute may fall under several heads.
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o Securities legislation clearly has double character. The insider trading provisions have both securities law
and companies law aspect and would adopt double aspect doctrine to validate both sets of leg. Provisions
o Doctrine applicable when the contract btw the relative importance of the two features is not so sharp –
when the fed and prov characteristics of legislation are roughly equal in importance, little reason to kill
one/let only one live
2. Whether Ontario provisions are inapplicable to insider trading of securities of federally incorporated companies as per
interjurisdictional immunity and/or are inoperative by overlapping provisions as per federal paramountcy? Neither doctrine
applies.
Double Aspect Doctrine: Both apply to their own spheres.
Prov: 92.13: buying and selling shares on stock exchange in Toronto is subject to prov. Legislation. Protects people
who buy/sell shares in open market
Fed: T&C: regulate corporation w/ national business objective. Protects shareholders of federally incorporated
companies
Prov and Fed “insider trading” legislation is equal, no need to kill one
Dissent: Estey: Fed provisions were invalid because legislation over regulation of securities transactions falls w/in provincial
jurisdiction over property and civil rights
NECESSARILY INCIDENTAL
General Motors v. City National Leasing [Sets out necessarily incidental doctrine]
Facts: CNL brings action against GM alleging loss as result of discriminatory pricing policy that constituted anti-competitive
behavior under Combines Investigation Act. GM argue act is ultra vires parliament cannot create a civil cause of action
because that falls within provincial jurisdiction in relation to 92(13) “property and civil rights”.
Issue: Is the Combines Investigation Act provision valid in provincial jurisdiction?
Decision: Act is valid exercise of fed: General T&C and is functionally related, even necessarily incidental
Reasons:
Necessarily Incidental Doctrine
1. Whether impugned provision is intruding into provincial powers?
What is the degree of the intrusion?
What is the seriousness of the encroachment on provincial powers?
o It does encroach.
o Less intrusive bc. it is remedial provision, not substantive in act
o It is well est. that fed can create rights of civil action
2. Is the Act Valid? Yes under general T&C
3. Is provision constitutionally justified by reason of its connection w/ valid leg? (“fit test)
How well is it integrated into the scheme?
How important is it for the efficacy of the legislation?
Note: It’s a balance: if impugned provision only encroaches marginally on prov powers, then a “functional”
relationship may be sufficient to justify provision. If highly intrusive, then stricter fit test needed.
o Necessary link btw. Provision and act = functionally related
o Remedy is bounded by parameters of the act
o Integrated into the purpose and underlying philosophy of the act
o Does not create open-ended private right of action
Note: In a federal state, overlap is to be accommodated and expected. Allow for judicial restraint in proposing strict tests
which result in striking down leg. Both provincial and federal governments have equal ability to legislate in ways that may
incidentally affect other government’s sphere of power.
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Issue: Whether the provision under bylaw, which in P&S lie outside prov. Power, is valid bc. they are ancillary to valid prov.
Provisions?
Decision: Ultra Vires + not sufficiently integrated w/ valid scheme to be saved under ancillary doctrine
Reason:
1. P&S: Provision prohibits construction of aerodomes in lake zone, while permitting their construction in other zones.
P&S is regulation of aeronautics.
2. Assign Matter to Head of Power: aeronautics fall to Fed.
3. Is it ancillary?
a. Saved if important part of broader legislative scheme.
i. General Purpose of zoning is to rationalize land use for benefit of citizens.
ii. Purpose of provision is to protect use of globeil lake for vacationers – but does not affect whole
municipality – only certain laws
iii. So ban is not functionally connected to by law.
b. Conclusion: Amendments on face + Impact are directed at removing aviation activities form part of
municipality
INTERJURISDICTIONAL IMMUNITY
Emphasizes exclusivity of jurisdiction. Provincial laws – to the extent that they affect the core of the federal
undertaking – do not apply
Protects certain matters that fall w/in core areas of fed jurisdiction from impact or interference of otherwise valid
provincial laws – and there is no double aspect to the matter regulated
IM eliminates overlap. The prov law has no force or effect applicable to federal undertakings
The court reads down provincial/federal statutes to protect the core of the other power form encroachment
Reading down = words of statute interpreted to apply only to matters w/in enacting body’s jursdiction
Canadian Western Bank v The Queen in Right of Alberta 2007, SCC p 264 [IM = must impair core]
Facts: Provincial law attempts to regulate whether or not someone could sell insurance.
Issue: Is selling insurance a core/essential element of banking? If so, then IM applies and the undertaking is
unconstitutional
Decision: Does not pass IM test, goes on to apply paramountcy test.
Reasoning:
What is IM? AND why we don’t like it:
This power is exclusive because the constitution expressly specifies this, and this exclusivity pre-empts that of the
legislatures and their general and specific application in so far as such laws affect a vital part of their undertaking.
If the authority is truly exclusive, it cannot be invaded by provincial legislation even if the fed power remains
unexercised. This gives rise to the water-tight compartments metaphor. Seeks to avoid concurrency powers.
In practice, seems to be invoked in favour of federal immunity at expense of provincial legislation
The sweeping immunity argued for by the banks is not acceptable. It exposes dangers of allowing IM to exceed proper
limit and frusture application of P&S analysis and double aspect doctrine
o Broad application creates practical problem and is inconsistent with what P&S, double aspect are designed
to promote
o Requires arbitrarily defining “core” and its scope. Not compatible with incremental approach of Canadian
constitutional interpretation
Effect: law cannot have incidental effects, despite absences at other levels
Legal Vaccuum: IM does not allow jurisdiction to step in in situations where fed hasn’t occupied the field IM doesn’t
allow prov to apply (then there’d be no law!)
Creates centralizing tendency
The court does not favour intensive reliance on this doctrine, nor is it acceptable as first recourse in division of powers
dispute
CDN prefer to rely on P&S, double aspect and paramountcy
Restricted Application of IM
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In Bell: In order for legislation to be inapplicable, it is sufficient that the statute which purports to apply to the federal
undertaking AFFECTs a vital or essential part of that undertaking, without necessarily going as far as IMPAIRING of
paralyzing it.
o We say affect is not strong enough because does not imply adverse impact.
o When the legislation of one government impairs (Adversely impacts) the core competence (vital or
essential) of the other level of government, that core is placed in jeopardy
o In the absence of impairment, IM does not apply
o Qualifiers: applied with restraint, after P&S and double aspect have been applied. Core is based on
existing case law that shows past application has been considered absolutely indispensible or necessary
to enable that jurisdiction to achieve the purpose for which exclusive legislative jurisdiction was
conferred
What is the core?
o The basic, minimum and unassailable content” (minimum = necessary to make the power effective for
the purpose for which it was conferred)
Claimants must locate the promotion of “peace of mind” insurance at the core of banking.
o The promotion of peace of mind insurance can hardly be said to be vital or essential to “banking”
Claimant must demonstrate that legislation IMPAIRS core competence of undertaking – based on existing case law in
past application has been considered absolutely indispensible or necessary to enable that jurisdiction to achieve the
purpose for which exclusive legislative jurisdiction was conferred (can’t add new competence)
Quebec v Canadian Owners and Pilots Association, 2010 SCC (Supplementary pp 8-16)
Facts: Laferrier and Gervais build landing strip on lot
under federal Aeronautics Act = no approval req’d)
Under provincial Preservation of Agricultural and Agricultural Activities Act = violates use of agricultural land for
non-agricultural function.
Issue: Does s 26 of Agi Act unacceptably interfere with federal competency?
Decision:
Reason:
Agrees with QBCA that provincial legislation limiting non-agricultural land uses in designated agi regions is valid.
However, this law impairs core of fed jurisdiction over aeronautics = inapplicable to the extent that it prohibits
aerodromes in agricultural zones.
IM is applicable: s 26 impairs fed power to decide where aerodomes are built. The location of aerodomes lies at
core of fed competency and would impair fed power over aviation.
Ratio:
Analysis:
1. What is the P&S of Agi Act? To violate use of agi land for non-agi function under s 92.13. Effect of legislation is
aligned with declared purpose = valid provincial provision
2. Could not be Double Aspect or Ancillary Powers bc frustrates the CORE of fed jurisdiction
a. Ie. the location of where you construct airports. Fed undertaking to decided this.
3. If courts want to limit scope of IM, why did SCC invoke it to strike down Act?
a. So much precedent that aeronautics is fed power, it clearly falls under fed. jurisdiction
Ratios:
McCutcheon: if there are two laws that conflict, then the federal paramountcy principle applies
Hall: If the purpose of the law frustrates intent, then to the extent of the frustration occurs then it is of no force or
effect
Rothmans: If the purpose of the law furthers the intent (although it is more onerous) and it is possible to comply w/
both, then both can exist
Multiple Access Ltd v McCutcheon 1982 p 277 (rejection of covering the field test)
Facts: A bring action against R under Ontario act prohibit insider trading. R says because federally incorporated company,
must use Canada Corporations Act (advantageous to R because limitation period for action had lapsed). R say doctrine of
paramountcy, rendering Ont act inoperative in alleged insider trading conflict. Conclusion that ss 100.4 and 100.5 of Canada
co. act is intra vires to Canada and ss.113 and 114 of ont. Act. are intra vires to ontraio leads to question..
Issue: Are the sections of Ont act suspended and rendered inoperative in respect of corporations incorporated under laws
of Canada?
Decision: Paramountcy does not apply because double aspect applies, Ontario act not suspended
Reasons:
Trial judge: Henry J (modern, narrow): they can operate concurrently
Only punishment differs
Compliance w/ one law does not involve breach of the other
Appellate Court: Morden J (older, prevalent):
Provincial duplicative legislation is suspended and inoperative
Supreme court: Dickson J (disagrees with Morden J) (applauds Henry J in express conflict test)
Prov leg merely duplicates fed; not contradicts it = harmonious duplication
Mere duplication w.o conflict is not sufficient to invoke paramountcy
Ratio: Duplication without conflict does not invoke paramountcy; where it is impossible to comply with both, then doctrine
of paramountcy applies
Bank of Montreal v Hall 1990 p 282 SCC (Approve of Covering the field)
Facts:
Hall, a farmer in Saskatchewan, borrowed money from the Bank of Montreal to buy machinery, with the machinery
as collateral/security
He failed to pay the loan, so the bank seized the machinery according to the federal Bank Act that does not require
giving advance notice
The Provincial Limitation of Civil Rights Act s 27 required the Bank to give notice before seizing collateral property.
Otherwise, the bank forfeits its right to make the claim.
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Bank challenges constitutionality under paramountcy claim
Issue: Is the Provincial Limitations acts of no force or effect to the extent of the conflict with Fed Bank Act?
Decision:
Reason: La Forest J:
McCutcheon test for conflict: It there an actual conflict in operation?
1. Examine Provincial Legislation: a judge must determine when, and if a security/article is to be seized
2. Examine Fed Legislation: Assigned the bank an immediate right to seize and sell those goods, subject only to the
conditions required by the Bank act.
There is actual conflict before them. Compliance with fed entails defiance of provincial counterpart. Cannot require bank to
defer to provincial legislation = displace intent of parliament.
Dual compliance is impossible when application of provincial statute frustrates parliaments leg. Purpose. (which is to have a
uniform banking system across Canada)
The two statues differ to such a degree in the approach taken to the problem of realization that the provincial cannot
substitute for the federal.
Parliament has made a complete code and there is no room left for provincial. That legislation should be construed as
inapplicable to the extent that it trenches on valid federal banking legislation.
Ratio: If compliance with provincial statute frustrates Parliament’s legislative purpose, then dual compliance is impossible.
Rothmans, Benson & Hedges Inc v Saskatchewan 2005 p 289 (Approve of Covering the field)
Facts: Fed tobacco act prohibit promotion of tobacco products. Sask adopt Tobacco Act which bans all advertising
Issue: Is the Sask act void under paramountcy?
Decision: Furthers
Reason:
1. Is it constitutionally valid? Yes
2. Do they conflict?
a. Dual compliance is possible.
b. Provincial legislation does not frustrate parliaments legislative purpose (to regulate tobacco sales to minors)
it furthers the purpose
c. They were enacted with same health-related purpose and there is no inconsistency btw the two
d. [class notes: there is a conflict of logic, because in Hall legislative purpose was generally uniformity, here
the legislative purpose is defined narrowly]
Rothmans: If the purpose of the law furthers the intent (although it is more onerous) and it is possible to comply w/ both,
then both can exist
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Jones: regulation of official language is beyond provincial reach of s. 92, therefore falls w/in residual
character of s. 91
o Emergency Branch: If you can characterize phenomenon as constituting national emergency then feds can
step in
o National Concern: If it is an issue w/ national dimensions, then fed can step in
AG Ontario v Canada Temperence: affirming Russell. National dimension to problem of drinking
Johannesson v Rurual municipality of West St. Paul: aeronautics as a concern of the dominion as a
whole
Munro v. national capital commission: national capital region as a single matter of national concern
Key Points of POGG
Emergency Branch
Temporary in scope
Flexible in nature: authority extends as far as is necessary given the emergency
Applicable in war times
Potentially available in social or economic emergencies – Re Anti-Inflation Reference
Gap Branch (new matters) and National Concern (matter that have since become national concern)
Usually a permanent addition to s. 91
Subject must possess
o Nationwide importance
o Singleness, distinctiveness and indivisibility – as determined by the provincial inability test
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Not court to decide if there was national emergency, but to decide if there was rational basis that supports
parliaments assertion that there was a national emergency
Court did have rational basis for regarding anti-inflation act as measure to temporarily necessary to meet
situation of economic crisis imperiling wellbeing of Canada and requiring parliament’s intervention
4. Is it a tenable argument that exceptional character could be lent to the legislation beyond that of local or
provincial concerns bc Parliament could reasonably take view that it was necessary measure to fortify action in
other areas of federal authority, such as monetary policy?
The fact that inflation has been rising, inflation is a monetary phenomenon and that monetary policy is w.in fed
jurisdiction, allows parliament of Canada, in these circumstance’s, to act over monetary policy
Dissenting (Beetz J): (in favour of provincial gov)
- If we interpret pogg broadly, and characterize certain social phenomenon as unprecedented, it will upset provincial
jurisdiction and constitutional order.
The Anti-Inflation Act is ultra vires the Parliament of Canada. It directly interferes with matters within the exclusive
jurisdiction of the Provinces (property and civil rights). This interference is not incidental or ancillary; it is interference on a
large scale.
Is inflation an issue of national concern?
- If parliament had power to control inflation, it is difficult to see what would be beyond the reach of Parliament. Inflation is
an aggregate of many subject matters, some falling within provincial jurisdiction. It is so pervasive that its primary effects of
the Act are related to property and civil rights.
- If we consider that Inflation should be parliament power, then everything else should be as well because inflation touches
many fields (salaries, budgets, wages, rent controls, etc). Inflation is too general a concept and it would obliterate provincial
powers, property and civil rights.
Is the current legislation an emergency measure?
- The Act does not clearly use the language of express emergency. Provinces should not have choice to opt in or out. He
warns that emergency should be kept separate so that courts cannot re-appropriate the decision to validate federal laws of
“national concern” in the future.
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o Must have singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial
concern and a scale of impact on provincial jurisdiction that is reconcilable w/ the fundamental distribution
of leg power
o Relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal
effectively w/ control or regulation of the intra-provincial aspects of the matter (provincial inability test).
Necessary to fill the gap of provincial powers
National concern doctrine applies because:
1) Interprovincial regulation: fed. Jurisdiction to leg. For pollution of provincial waters applies because it
reduces the risk that citizens of one province would be harmed by non-cooperation of another province.
2) Scientifically difficult to draw clear line btw prov. And fed. Waters
3) Indivisible: This problem involves federal competence. The matter is indivisible due to movement of
pollution through water.
Dissenting: (La Forest): Only a local matter, not an emergency requiring grave proportions that displace ordinary divisions of
power. Prohibition not linked to purpose: because prohibits ANY dumping.
Must respect the scheme of federalism
Result: environmental issues will have fed. aspect
Ocean pollution is insufficiently distinct. Argument that water moves = wrong because water seeps everywhere!
Can apply to federal waters, but to apply to provincial waters = ultra vires.
Provision prevents province from dealing with property w/o fed. Consent. (due to dumping of ANY substance)
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A trade completed in a province does not necessarily subject it to provincial control. BUT: When such a transaction
incidentally has effect upon company engaged interprovincial trade it is not prevented from being subject to
provincial control. The fact that they had “some effect” does not make them invalid.
Case Law: Shannon v Lower Mainland Dairy products: Natural Products Marketing Act okay bc regulating
transactions that take place wholly w/in province, within s.92 13
Ratio: Upheld scheme because while it would have some effect on price ultimately charged, the pith and substance targets
transaction w/in the province
B. NATURAL RESOURCES
Who has jurisdiction over natural resources?
s. 92 (5): the provincial jurisdiction deals with timber
s. 109: All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New
Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the
several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any
Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.
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Lists provinces because before amendment, at signing certain provinces agreed to fed controlling natural resources.
After amendment = even playing field.
R. Simeon and I Robinson State, Society and the Development of Canadian Federalism
Ottowa’s preference for below-world prices interpreted as victory for non-producing regions, not only in consequence but
also intent.
Canadian Industrial Gas and Oil Ltd v Government of Saskatchewan 1978 p 370
Facts: Saskatchewan has control over natural resources and, so granted profits of “National Resources Transfer
Agreements” (which made huge increase in price of oil) to the province. This meant that oil producers did not reap these
profits, the rest of profits go to sask. Gov.
A say: 1. Acts = constitute indirect taxation = beyond power of province and 2. Legislation relates to interprovincial trade
and commerce, which is fed parliament power .
Issue: Whether certain statutes under Saskatchewan are constitutionally valid?
Decision: Invalid
Reason:
Effect of legislation is to set floor price for Sask oil purchased for export by appropriation of its potential
incremental value in interprovincial/international markets, or to ensure that incremental value is not appropriated
by persons outside province.
Actual Purpose: drain off substantial benefits that would have accrued to the producers due to sudden and
unprecedented price of crude oil.
Distinguished from Carnation. Here leg directly aimed at production of oil destined for export = ultra vires: 98% of
all oil is destined out of province. Whereas in Carnation milk was sold in province.
In pith and substance, it is aimed to control product (oil) out of the province.
Dissent: It is not colorable. (Not different than carnation)
1. Language of impugned statutes does not disclose intention to regulate, control or impede marketing/export of oil
2. No impediments to the free movement of goods as found in Manitoba Eggs
3. No extraneous evidence that supports effect regulated interprovincial/international trade
Ratio: S fixes price to be charged for oil at well head (located in province). Regulating price to be charged at a point – and
that point is w/in province. Carnation involved point of sale btw. Cow/tanker trucks. Purpose: to maximize the return for
Saskatchewan citizens. This is a public resource, and the profits should be enjoyed by public not oil companies. Effect has
substantial effect on export markets. Sask. Trying to fix the price for a commodity of which 98% is being sold outside
province.
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Ratio: Scheme in which Sask. Wants to regulate production of potash (Set price charged in foreign markets). Has
substantially control over potash, and how it pulls those levers effect price charged abroad. Struck down: price fixing. Pith
and substance effects extra-provincial markets/interprovincial trade = dominion power (s 91.2)
S. 91.2 Trade and Commerce: Interprovincial trade and Trade with foreign countries (Parsons)
K. Swinton, The Supreme Court and Canadian Federalism: The Laskin-Dickson Years
Parsons: privy council make reference to “general regulation of trade” in 1976
Not often used. Reluctance due to tension between general regulation of trade doctrine and dominant mode of
analysis in trade and commerce cases, which emphasizes the need for an interprovincial/international flow of
products in order to justify fed. Regulation of local transactions
Under traditional federal scheme, judge examine contract terms or production standards
o If general regulation of trade doctrine applied, court must look beyond stage at which regulation is imposed
and look to: whether the federal measure regulates a national economic problem of interest to the whole
country, even if it does so at the stage of production of retailing w/in a province
o Old method: identifying Intra/interprovincial distinction: clearly recognized zone for provincial autonomy
Labatt Breweries of Canada LTD v AG Canada p 392 (Crim law power is broad but subject to constitutional limits)
Food and Drugs Act: regulated content of a variety of food and drug products. S 6: where a standard has been prescribed
for food, no person shall label, package, sell or advertise any article in a such a manner that it is likely to be mistaken for
such food, unless the article complies with the prescribed standard. Standards on alcohol content on light beer. Labatt
marketed “special lite beer”, exceeded max alcohol content. Labatt challenge trade and commerce.
Issue: Is s. 6 of the food and drugs act ultra vires?
Decision: yes. Court rejects fed argument bc. These regulations specifically target single industry – cannot be general.
Reason: (Estey J)
o Parsons decision giving fed gov power over interprovincial and foreign trade is not applicable as regulation
concerned with production and local sale. Regulation not concerned with “flow of article of commerce” but with
production/local sale of specified products. No interprovincial aspect of this industry b.c. brewery in ever province.
o Parsons decision under general trade power not applicable because regulates single trade/industry, and fed. Gov
cannot impose.
o Impugned provisions concerned with production process of single industry that was substantially local in character
o Food and drug act regulate one industry at a time, by varying array of regulations or trade codes applicable to each
individual sector, and was not a regulation of trade and commerce in sweeping general sense of Citizens Insurance
o Not criminal because not directed at protection of health or prevention of deception; not pogg because no matter
of national concern
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Dissent: (Pigeon J) same as trademark regulation in Canada standards, these specifications on food labels do not go beyond
proper concept of trade mark legislation
Dissent 2: (Laskin CJ) General trade power: parliament should be able to fix standards that are common to all manufacturers
of foods, including beers, drugs, cosmetics etc, to equalize competitive advantage
Ratio: Targeted a single industry with local character and therefore didn’t fall under “general” trade and commerce. In order
to be valid under “General” head, it has be more general in its scope
If it is valid, then is the provision sufficiently integrated w/ scheme that it can be upheld by virtue of that relationship? (look
at seriousness of encroachment on prov. Powers)
Yes, s.31 is a remedial provision. It does not create a general cause of action but rather one limited by the Act. Parliament is
constitutionally allowed to create rights of civil action when they are warranted. s.31 is sufficiently related to the valid
federal scheme of the Act.
Ratio: Use of 5 factors to determine if it falls under “general” trade and commerce. Must justify them on case by case basis
(use the facts).
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1. Scope of Federal Power?
o S 91. 27 = dramatic shifts in interpretation
Reference Re the Board of Commerce Act 1922: enabling dominion to exercise exclusive legislative
power where the subject matter is one by is very nature belongs to criminal jurisprudence. Ie.
Incest and found that Combines and Fair Prices Act = not exercise of criminal law power
Proprietary Articles Trade Association v. AG Canada 1931: rejection of narrow definition. Wide
definition: included all acts at any particular period of time are prohibited with penal sanctions.
Concluded that Combines Investigation Act 1927 was valid exercise of crim law power
Requires: a prohibition and a penalty
Margarine Reference: Rand J concerned w/ purely formal definition and need for criminal public
purpose in addition to formal requirements of prohibition and penalty (See Margarine Reference)
(3P’s: Prohibition, Penalty and Public Purpose)
Macdonald: SCC applies 3Ps. The motivation for regulating advertisement of tobacco is protecting
public health, and this satisfies Rand’s 3rd P. Dissent: Major J: Remains legal to sell tobacco but
criminalizes ads – that does not seem like traditional public law purpose, can’t see how advertising
tobacco products threatens public order.
2. Extent to which the existence of this fed power has constrained prov. Attempts to control local conditions of
public order and morality?
Tension btw broad criminal law power (living tree approach) = fed can regulate many different subjects and
traditional, narrow crim law power – says this looks like you are supporting federal incursion into provincial
jurisdiction
S 91 (28): The establishment, maintenance and management of penitentiaries
Provincial:
o 92(6): The establishment, maintenance, and management of public and reformatory prisons in and for the
province
o 92(14): The Administration of Justice in the Province, including the Constitution, Maintenance and
Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction and including Procedure in civil
matters in those courts
o 92(15): The imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any law of the
province made in relation to any matter coming within any of the classes of subjects enumerated in 92
KEY POINT: Criminal fed power is broad scope and can expand in the future
Reference re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference) 1949 p 422 (Broad crim law power)
Facts: s 5a: no person shall manufacture, import into Canada, or offer, sell or have possession for sale any
margarine/substitute for butter, manufactured from any fat other than milk or cream. + established system of penalties.
Issues: Is section 5a ultra vires of Parliament? (Can crim law power lawfully prohibit manufacture + importation of
margarine)
Decision: Prohibition of Manufacture = ultra vires, prohibition of importation = upheld under gov’s “power to regulate
foreign trade”
Reason:
Lord Atkin rejects that crim law must carry moral taint
Rand J: A crime is an act which law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted
in a vacuum, we can look for some evil/injurious/undesirable effect upon public which law is directed
o Is the prohibition enacted with view to public purpose?
Public peace, order, security, health, morality: are served by law but they are not the object of
parliamentary action
Pith and Substance: The object is economic and legislative, to give trade protection to dairy industry
in production and sale of butter – to benefit one group of persons against competitors in business.
In absence of legislation, competitors would be free to engage in business w/ provinces
Deals with civil rights of individuals in relation to particular trade
Whatever the scope of interprovincial trade, it is hard to conceive a more insidious form of
encroachment on complementary jurisdiction
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Ratio: Crim law power must in P&S contain public purpose, not a purpose that falls in provinces. Although parliament’s
power to legislate in the field of criminal law is broad it is subject to constitutional limits.
R v Hydro Quebec p 433(broad crim law power) [Can fed use crim law power to protect environment?]
Facts: Hydro Quebec charged with violation of interim order of Environmental Protection Act, which established process for
regulating use of toxic substances. SCC say it is allowed under crim law power – didn’t need to look at pogg. Dissent argue it
is ultra vires under both.
Issue: Is the scheme ultra vires under crim law power?
Decision: Dissent says it is (Lamer CJC and Iacobucci J); Marjority says it isn’t (La Forest J)
Reason:
Majority: (La Forest) [broad approach]
Crim Law Power: (ultimate argument) [can be saved here so need not talk about Pogg]
o Environment is a matter of double aspect, both prov and fed can take part (wants to support cooperative
federalism)
o Constraints on crim law power:
1. The criminal law power cannot be employed colourably
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o P1. Prohibition: Toxic: Provides administrative framework to find which substances will be considered toxic
“substances may have immediate/long-term harmful effect on environment” [court split here]
Gives minister of health to declare substance as toxic
o P3: Protection of clean environment is a public purpose sufficient to support criminal prohibition; pollution
is an evil; Purpose of criminal law is to underline and protect fundamental values – environment is
fundamental to society. Crim law must be able to keep pace w/ and protect emerging values
o Not a matter of 92(13) because has to do w/ protecting fundamental value
Pogg: (side argument)
o The matter of toxic substances is a national concern. Toxic substances once introduced in the environment
cannot always be kept w/in boundaries (provincial inability to deal)
o Environment is an international problem
o Does not preclude provinces from exercising powers under s 92 to regulate and control pollution
independently/ supplement fed. Action
Dissent (Major and Lamer) [narrow approach to crim power]
Main issue: “Toxic” is not defined.
“Toxic” = any substance that poses harm to human life/health/environment. Then Acts says it may be made subject
of comprehensive fed regulation..
In pith and substance: aimed at protecting environment/human health. Can this be justified under crim law power?
o Must contain prohibitions backed by penalties: more an attempt to regulate environmental pollution than
to prohibit or proscribe it = not justified
o Must be directed at legitimate public purpose: cannot be supported at human health because toxic defined
broadly. But protection of environment = legitimate criminal public purpose – but they are not intended to
prohibit environmental pollution simply regulate it
o How to tell if its prohibitive or regulatory?
1. It is allowed to contain exemptions which effectively make regulatory schemes
Consider nature and extent of regulation it creates + context w/in it purports to apply
The more elaborate the scheme – more likely it is regulatory
Must have general prohibition (not something that is not an offence until admin agency intervenes
ie. Adding to list of substances) (in contrast to Macdonald, which has a general prohibition)
o This framework is regulatory – Not criminal. This is the type of framework that a province could use, but not
the fed. Power. Fed must be more specific
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o S 92 (14) gives provincial legislatures jurisdiction over the administration of justice in the province (including
provincial policing) + Federal delegation to the provinces to prosecute Criminal Code offences
o The Fed gov. through conditional legislation has drafted criminal laws in ways that allow them to be shaped
by provinces to respond to local conditions
o Judicial recognition of concurrent provincial jurisdiction in matters that may also be subject of criminal law
S 92 (15) allows province to enact penal sanctions (ancillary power) to enforce provincial regulatory
scheme validly anchored in s 92
Discussion: What constitutes a valid provincial anchor? The extent to which the court will recognize double aspect
with respect to matters covered by the Criminal Code
o Re Nova Scotia Board of Censors v McNeil 1978
o Westendrop v The Queen 1983 : province exceed jurisdiction and intruded into fed crim law power. Courts
struck down municipal bylaw regulating public order and morality.
o Subsequent cases at SCC uphold prov. Laws dealing w/ public order and morality through generous use of
double aspect. But if no valid provincial purpose is found, law is an invalid attempt to
duplicate/stiffen/undermine operation of crim law
o Rio Hotel Ltd. V New Brunswick (Liquor Licensing Board) 1987: SCC upheld provision which gave Liquor
Licensing Board power to attach conditions to liquor licences regulating and restricting nature and conduct
of live entertainment in licensed premises.
License preclude nude performances, even though public nudity in Crim Code. But SCC upheld
because condition directed towards types of entertainment available as marketing device for sale of
liquor w/in province. (does not prohibit nude performances, just says you can’t sell alcohol too)
One can comply w/ both prov and fed.
No penal consequences ensue for license holder – only suspension or cancellation of licence.
Distinguishable from Westendorp bc: = colourable attempt to punish prostitution, not truly part of
regulatory scheme. Licence condition is part of comprehensive scheme regulating liquor, no
colourable intrusion on fed.
o R v Morgentaler 1993: SCC struck down provincial law prohibiting performance of medical services
(abortion) outside hospital.
Penal sanctions imposed
Pith and substance: related to criminal law
Colourable: preventing est. of free standing abortion clinics
o Chatterjee v Ontario AG 2009: SCC find Ontario’s Civil Remedies Act Constitutional
Purpose: allows provincial government to seize property if they think it is proceeds of a crime.
(authorize the forfeiture of proceeds of unlawful activity)
Facts: pulled over by cops due to broken tail light + discover he’s breached his probation conditions
– arrested for breach of probation. Police found money $29,000 in his car and the odour of weed.
AG seize money as proceeds of unlawful activity. He was never charged w/ trafficking or possession.
All they had was a lot of money in the backseat + smell of pot.
SCC Reasoning: Upheld: under 92.13
CRA enacted to deter crime (falls under fed crim law power and provincial property and civil
rights)
CRA Enacted to compensate victims (crime imposes costs on provincial treasuries, impact
provincial interests including health, policing, community stability)
Not reality to conclude that province must shoulder costs to community of criminal
behavior but cannot use deterrence to suppress it
Differs from crim law which couples prohibition w/ penalty
General purpose: to make crime unprofitable, to capture resources tainted by crime, and to
compensate individuals and public institutions for cost of crime. = Valid criminal object. Not
colourable.
Is the CRA constitutional?
No, it is ulta vires: Provincial attempt to criminal activity. It is a fed crim law power because it meets the 3ps
(Margarine Reference).
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Yes, it is provincial: Purpose: Regulating property and civil rights, Effect: compensate individuals and public
institutions.
(It is constitutional – the provisions of the act do not achieve the effect. If the purpose is to compensate individuals
in Ontario for the cost of crime, taking property for a crime that occurred in another province does not achieve this
effect.
o due to balance of probabilities reasoning applied - it is not required by the Act to prove that the crime had
detriment to Ontario)
o
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Ratio:
Exam Notes:
Should be able to look at how division of powers issues are contested, decided and adjudicated
FEDERALISM REVIEW
Reference re Securities Act, 2011 SCC 66
What is the government’s main strategy for establishing
General trade and commerce power argument: 91(2).
Double aspect: securities industry has evolved to the point where it touches on national concerns. Will that argument
succeed here? We should promote concurrency and overlap and cooperative federalism.. But by paragraph 62, the court
says, notwithstanding the courts promotion of the above, the constitutional boundaries do not allow for the tide to sweep
this.
1. P&S: What are the dominant purposes of this legislation? Start with intrinsic evidence – what is the act set out to do.
Look at the extrinsic evidence regarding the purpose.
Then look at effects: intended and practical effects.
Apply it to the legislative scheme.
What is the legislative scheme doing? To create a general comprehensive securities regulate, such as investment
protections. Effect of the legislation: duplicate what the provinces has already done (para 101, their regulatory regimes.
(paragraph 100). There are certain national aspects to the regime ie. Systemic risk (markets are increasingly globalized). Ie.
“For example, it contains provisions for the control of systemic risk and for data collection on a nationwide basis,
something Canada argues cannot be accomplished at the provincial level.” (102)
BUT are the provinces inable to deal withthis? The fact that the fed. Is duplicating prov regime shows that the
provinces are able to
Advice : go back and refocus to national concern or go the cooperative federalism route and strike a deal w/ the
provinces.
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