CONSTITUTIONAL LAW – FALL 2013 OUTLINE

I. INTRODUCTION TO CANADIAN CONSTITUTIONAL LAWa. WHAT IS A CONSTITUTION?

i. What is a Constitution? A set of fundamental principles that describe the organizational framework of the state and the nature, scope, and limitations on the exercise of state authority

ii. What is Federalism? Canada has a federal constitution In a federal system, sovereignty is divided between two orders of

government, with each level of government being restricted to the areas of jurisdiction assigned to it, and neither being able to control or direct the activities of the other

In a federal system, the distribution of powers between the national and local governments is exhaustive, in the sense that there are no fields of jurisdiction that are not distributed to either the federal or the local level of government

iii. Elements of the Canadian Constitution The Canadian constitution includes a core set of documents and

provisions that are constitutionally entrenched These core documents include:

1. The Constitution Act, 18672. The Canadian Charter of Rights and Freedoms3. Identified in the Constitution Act, 1982

iv. Sources of the Canadian Constitution 1. The Common Law

Case Law Aboriginal Rights Parliamentary Privilege Prerogatives

2. Statutes Ordinary Canadian Statutes Ordinary British Statutes Canadian Constitutional Statutes

3. Conventionsb. THE NATURE OF CONSTITUTIONAL LAW

i. Unwritten Principles of the Canadian Constitution 1. Federalism2. Democracy3. Constitutionalism and The Rule of Law4. Protection of Minorities5. Aboriginal Rights

ii. Reference Re Succession of Quebec (SCC, 1998) There are 4 unwritten constitutional principlesThree questions posed by the Federal government

1. Did Quebec have the right under the Canadian constitution to declare its sovereignty from Canada unilaterally

2. Whether international law permits Quebec to unilaterally secede from Canada

3. Whether domestic law or international law would prevail in Canada in the event of a conflict between them

Question 1: NO Secessions legally possible through a constitutional amendment

under section 41 Court confirmed that the secession of Quebec would require an

amendment to the Constitution of Canada and that such an enactment could not be enacted by the province acting unilaterally

However, the federal government would have a constitutional duty to negotiate secession following a clear majority favouring this option on a clear referendum question

Constitution based on four general principles:1. Federalism2. Democracy3. Constitutionalism4. Rule of law

The court relied on the unwritten principles of democracy and federalism to create a constitutional duty

This reliance on unwritten principles may effectively rewrite the text of the constitution

The Court’s reasoning should be interpreted as supporting the use of unwritten constitutional principles only when they are necessarily implied by the constitutional text

Question 2: NO Sovereigntists in Quebec had traditionally argued that although

secession may be prohibited under domestic Canadian law, the international law principle of self-determination of people justified unilateral secession

Even if the right of self-determination might give rise to a right of secession, these circumstances clearly did not apply to or exist in the case of Quebec

The argument on Question 2 was based on two unrelated propositions

1. Although international law did not grant any positive entitlement to secede from their host states to sub-national units, it did not prohibit attempts at secession. The issuance of a unilateral declaration of independence was therefore not a breach of any rule of principle of international law

2. Effectivity principle: the sole legal criterion according to which an attempted secession is judged under international law is its political success or effectiveness

The court argued against the first point by stating that the failure to reach agreement on constitutional amendments following the patriation of the Constitution in 1982 did not place Quebec in a disadvantage position within the scope of the international law rule

As for the second question the Court pointed out that unilateral secession might eventually be accorded legal status in Canada in the sense that if secession “is successful in the streets it might well lead

to the creation of a new state”. However, this does not support the more radical point that it could be taken to mean that secession was achieved under colour of a legal right

Question 3 Unnecessary to answer since both systems were consistent with

each other on the issues raisedc. METHODS OF CONSTITUTIONAL ARGUMENT

i. Judicial Review and Legitimacy When an individual seeks to challenge the validity of government action before the courts, that person is usually described as an application for judicial review

The individual argues that there was no legal authority for the decision or action and that it was therefore unlawful

Some of the most significant and far-reaching Charter decisions of the Supreme Court have been based on the guarantee of life, liberty, and security of the person under section 7

o In Canada (Attorney General) v. PHS Community Services Society the Court held that the Minister of Health’s refusal to provide an exemption from the possession provisions under the Controlled Drugs and Substances Act violated section 7 rights of users of a safe injection site in Vancouver

Types of argumentso Historical argument (purposive)o Textual argument (originalist)o Structural argument (analogy)o Prudential argument (costs and benefits)o Doctrinal argument (precedent)o Ethical argument (ethos)

II. PRINCIPLES OF INTERPRETATIONa. EVOLUTION OF THE DIVISION OF POWERS

i. Values Informing the Division of Power The BNA Act, now the Constitution Act of 1867, stated that a

general parliament for Canada was to be established with authority to enact laws for the “peace, welfare, and good government of the Federated Provinces”

A detailed list of 37 specific subject matters that were especially assigned to the General Parliament was also included, most of which were later included in section 91 of the BNA Act: regulation of trade and commerce, the raising by any mode of taxation, defence, criminal law, currency and banking, shipping, and interprovincial works

There was also a listed of provincial powers The provinces were granted power to enact laws in relation to

property and civil rights The BNA Act did not properly address how the roles and

responsibilities would be shared between different levels of government

It largely fell to the courts to structure a division of powers for Canada

ii. Citizen’s Insurance v. Parsons (PC, 1881) The JCPC’s Watertight Compartments View

The leading case of section 91(2) Case involving a challenge to an Ontario statute regulating

the terms of insurance policies First asked whether the Act fell within section 92, and found

that it dido But it could also be argued to be within section

91(2): regulation of trade and commerce This conflict could not have been intended and the two

sections must be read together in order to avoid any apparent overlap

The analysis of federal trade and commerce power has been interpreted as establishing two distinct branches

1. The dividing line is based on a distinction between interprovincial and export trade on the one hand and local trade on the other. The provinces have power to regulate trade within the province, while Parliament has power to regulate trade between provinces or with foreign states

2. “general regulation of trade and commerce”-less clearly defined, seems to invite an assessment of the relative importance of an economic activity to the national economy

Privy Council almost ignored the second branch entirely because they preferred categorical reasoning

The case was resolved on the simple and straightforward basis that the trade and commerce power does not authorize regulation of a particular trade in which Canadians would otherwise be free to engage in the provinces

Act applied to insurance companies whose business was conducted entirely within particular provinces

The federal government was ultra vires This interpretation of section 91(2) was precisely the

opposite of that intendediii. Russell v. The Queen (PC, 1882)

The Pith and Substance Doctrine Early but short lived trend of broad federal power Validity of the Canada Temperance Act, a federal statute

permitting local areas to prohibit the sale of intoxicating liquor

Individual charged argued that the statute was constitutionally invalid because it dealt with property and civil rights, which was a provincial matter

The fact that liquor could be held as property did not prevent Parliament from restricting its use when this was deemed dangerous to public health or safety

Parliament could enact laws under the POGG power that incidentally affected property and civil rights as long as it did for a valid purpose

In assessing the validity of legislation, it is necessary to determine the statute’s true nature and character. This can only be ascertained by considering the underlying purpose or objective of the legislation

Russell was significant because it represented the first attempt to articulate what came to be known as the pith and substance doctrine

If a federal law is, in pith and substance, in relation to a federal head of power, then the law may have incidental effects on a provincial head of power without being rendered invalid (and vice versa)

o The pith and substance doctrine focuses on the purpose of the legislation, rather than its incidental effects

Opens the door to substantial overlap in jurisdiction precisely because it ignores the incidental effects of legislation in determining constitutional validity

if incidental effects were to be regarded as the primary focus of the analysis, the federal POGG power would be rendered insignificant

The pith and substance doctrine would allow Parliament to legislate on matters of national importance, even though such laws would also inevitably have incidental effects on property rights in the provinces

iv. Hodge v. The Queen (PC, 1883) The Double Aspect Doctrine: subjects that for within one aspect fall within s.92 can for another aspect fall within s.91

The Privy Council upheld an Ontario statute regulating the sale of liquor

Subjects which in one aspect and for one purpose fall within section 92, may in another aspect and for another purpose fall within section 91

While it was true that Parliament could enact temperance legislation to deal with federal aspects of the problem, the provinces could enact legislation dealing with its local aspects

The legislation was entirely local in its character and operation, and did not interfere with federal legislation on the same subject

The aspect doctrine essentially asks whether Parliament or the provinces have a sufficient interest in a particular social or economic problem such that they should be permitted to regulate it

The JCPC saw the aspect doctrine as a problem because it seemed to embroil the judges in political decision-making

v. Local Prohibition Reference (OC, 1896) Federal POGG Power, paramountcy issue when double aspect doctrine is applied

Until this case the precise relationship between POGG and the enumerated heads of power in section 91 had not been clearly settled

2 views of POGG1. Broad view: POGG constituted the general grant of

power to Parliament, and the enumerated heads were illustrative only (supported by Russell)

2. Narrow view: gave primacy to the enumerated powers in both sections 91 and 92, and relegated POGG to a purely residuary position. In this view POGG was only applicable to matters that did not fall within s. 91 or 92

In the Local Prohibition Reference Lord Watson opted for a narrower view, making a clear distinction between POGG and section 91

POGG needed to be strictly confined to such matters as are unquestionably of Canadian interest and importance, and not ought to trench upon any of the powers enumerated in section 92

The pith and substance and aspect doctrines could not be applied to support legislation enacted under POGGo Could not “encroach upon” or “incidentally affect”

matters under section 92 Significantly limited scope of POGG power, not used much

afterwardsvi. The Early 20 th Century

POGG powers were narrowed even further Effectively marginalized the aspect doctrine and POGG

powers so that they could not be used to uphold federal legislation in “normal circumstances” (Reference Re Board of Commerce Act)

b. DEPRESSION AND THE NEW DEAL vii. Reference Re Aeronautics (1931)

Aerial navigation falls within s. 91viii. Reference Re Radio

ix. Depression and the New Deal From the JCPC’s point of view the emergency doctrine of

POGG constituted a clear bright line that made the task of delineating it simple

In 1938 the federal government initiated discussions with the Provinces and the BNA Act was enacted by Westminister in 1940

c. PITH AND SUBSTANCE

i. Pith and Substance Doctrine In order to determine whether particular laws enacted by

Parliament or the provincial legislatures are valid, the courts have applied what has been termed the “pith and substance” doctrine

The doctrine has two steps:1. Requires the court to determine the “pith and

substance”of the law2. Involves a determination of how the law fits within

the heads of power set out in the Constitution Act, 1867

The court determines the pith and substance of the law by examining both the purpose of the law and its effects

ii. R v. Morgentaler (SCC, 1993) Federalism Pith and Substance Test

Emphasis on the form of legislation, as opposed to its underlying purpose or function

Supreme Court struck down criminal code provision for abortions

The Province of Nova Scotia enacted the Medical Services Act prohibiting abortions and made contravention of the Act a summary conviction offence

The Supreme Court struck down the provisions The majority argued that a province cannot invade the

criminal field by attempting to stiffen, supplement or replace the criminal law

It is in “pith and substance” criminal law, which is under the federal heads of power

Pith and substance test1. What’s the matter or the mischief that the legislation is intended to respond to (pith and substance)?2. What is the purpose and effect of the legislation?3. What is the scope of the applicable heads of power (ss. 91 and 92 of the Constitution Act 1867)?

Colourability: where a statute is in appearance, but not in substance, what it claims to be. (When a level of the government passes legislation saying that they doing so for one reason, when it is really for another)

iii. Reference Re: EI (SCC, 2005) Have to take into consideration changing times and expand government powers accordingly; “living tree”

The pith and substance doctrine tends to result in the enactment of overlapping federal and provincial legislation

The doctrine permits both levels of government to enact legislation with similar effects, as long as the purposes being pursued are distinct

Provided that the courts are able to characterize the laws as having distinct purposes, and provided that each law has a

purpose that is in relation to a legislative power conferred on the enacting legislature, both laws will be upheld

d. OVERLAP AND INTERJURISDICTIONAL IMMUNITY i. Ancillary Powers/Necessarily Incidental

Way to decide federalism cases without exclusive reference to the pith and substance doctrine

In cases where a constitutional challenge is brought against a particular provision in a statute as opposed to the statute as a whole

3 step process:1. Consideration of the impugned provision to ascertain

whether it intrudes on the jurisdiction of the other level of government

2. Whether the impugned provision is contained within a valid regulatory scheme

3. The fit between the impugned provision and the valid regulatory scheme

The point of the analysis was that, even when a particular provision of a law intruded on the jurisdiction of another level of government, it may still be upheld if it can be characterized as being ancillary or necessarily incidental to an otherwise valid regulatory scheme

The extent of the intrusion is the important factor Where the intrusion is small it may be sufficient for the

impugned provision to be “functionally related” to the regulatory scheme

If the intrusion is more significant, the test for validity will be stricter and the enacting government will be required to demonstrate that the provision in question is necessarily incidental or truly necessary to the regulatory scheme as a whole

ii. Double Aspect In cases where Parliament and the provinces have enacted virtually identical laws for similar purposes, the courts have on some occasions upheld both laws on the basis that the subject matter has a “double aspect” In cases where Parliament and the provinces have enacted

virtually identical laws for similar purposes, the courts have on some occasions upheld both laws on the basis that the subject matter has a “double aspect” (Multiple Access Ltd v. McCutcheon)

iii. Interjurisdictional Immunity Provides that certain entities may be immune from the application of valid laws. Although the law remains valid and generally applicable, the law is “read down” by the court such that a particular person or entity is exempt or immune from the law’s application

There is a “core” of legislative powers that cannot be encroached upon by laws enacted by the other level of government

The doctrine of interjurisdictional immunity is an exception to the pith and substance doctrine

iv. Lacombe (SCC, 2010) Ancillary Doctrine The incidental affects rule applies when a provision, in pith

and substance, lies within the competence of the enacting body but touches on a subject assigned to the other level of government. It holds that such a provision will not be invalid merely because it has an incidental effect on a legislative competence that falls beyond the jurisdiction of its enacting body

The by-law was not saved by the ancillary powers doctrine, because the ban being imposed was not rationally or functionally connected to the by-law

v. Pilots Association (SCC, 2010) It is now settled that the test is whether the provincial law impairs the federal exercise of the core competence

e. PARAMOUNTCY i. Operability

The courts have developed the doctrine of federal paramountcy to deal with the situation in which federal and provincial laws conflict

The paramountcy doctrine provides that when there is a conflict, the federal law prevails

The provincial law is rendered inoperative to the extent that it is inconsistent with the federal law

There are two types of conflict that may engage the doctrine of paramountcy

1. Operational conflict: it is impossible for a citizen to simultaneously comply with valid provincial and federal laws

2. The application of the provincial law may frustrate the purpose of a federal enactment

Early cases assumed that the doctrine of paramountcy was limited to cases of true operational conflict. Therefore, even though a federal and provincial law might be pursuing conflicting purposes, both laws would be upheld if it were possible for private citizens to comply with each (Ross v. Registrar of Motor Vehicles)

If the provincial legislation is held to be in conflict with the purpose of federal legislation, it becomes inoperable (Mangat)

If it is possible to comply with both the federal and provincial statutes (by complying with the stricter provincial statute) and there is no conflict in the underlying legislative purposes,

there is no conflict between the statutes and the provincial statute remains operative (Rothman, Benson & Hedges)

ii. Multiple Access Ltd v. McCutcheon (SCC, 1982) Double Aspect Doctrine Operational conflict occurs where there is an express

contradiction between the two laws, such that compliance with one necessarily involves a breach of the other

o Where one enactment says yes and the other says no The Court in Multiple Access held that federal and provincial

laws regulating insider trading did not conflict since it was possible to comply with both laws simultaneously

III. PEACE, ORDER AND GOOD GOVERNMENT HISTORICAL DEVELOPMENT

i. Historical Development of POGG Parliament is authorized to enact laws for the Peace, Order,

and Good Government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces

The JCPC adopted a narrow interpretation of POGG Since matters in section 92 were automatically subtracted

from the purely residual POGG power, POGG was rarely invoked as a basis for upholding federal laws by the JCPC

By the 1920s, POGG had been reduced to essentially an emergency power, available only in cases of war or other similar national crises

The Supreme Court had broadened the scope of the POGG power somewhat

There are now three branches that can be relied on to support federal legislation

1. Emergency Power (established by the JCPC)2. Gap or residual power of POGG: the power to

legislate in relation to matters not included within any of the enumerated classes of subjects in sections 91 or 92

3. National Concern Branch: the power to legislate in relation to distinct matters of inherent national concern

ii. Reference Re Anti Inflation Act (SCC, 1976) There is a difference between the national concern and emergency branches. Must be explicit when using emergency branch of POGG power.

National concern – when applied effect is permanent, but limited by the identity of the subject newly recognized to be of national dimension

Crisis/Emergency – power to make laws knows no limit other than those dictated by the nature of the crisis, but the limits are temporary

Federal government in the fall of 1975 wanted to impose a comprehensive program of control on wages, prices, and profits

The regulation of such intraprovincial activities or transactions had always been regarded by the courts as falling within exclusive provincial jurisdiction, pursuant to the property and civil rights power in section 92(13)

A number of public sector unions launched a constitutional challenge to the legislation on the basis that it regulated matters coming within the exclusive jurisdiction of the provinces

The federal government’s main constitutional argument was that inflation was a problem of inherent national concern and, therefore, the legislation could be justified under the national dimensions branch of the POGG power

The Court rejected this argument but held that the legislation could be supported on the basis of the emergency branch of the POGG power

The court appeared to assume that the burden was on the parties challenging the legislation to establish that inflation did not constitute a national emergency

It would also be necessary to find that Parliament did not have a “rational basis” for regarding inflation as a national emergency

The legislation was also temporary, which supported the validity of the Act as an emergency measure

The controversy was that Parliament had tried to use national concern, and not national emergency

The dissent said that Parliament could not rely on the emergency power unless it clearly declared the existence of an emergency

o The majority argued that Parliament did not have to use the word “emergency”

Some argue this allows Parliament to apply the emergency power at will

o Overstated given the Court’s limited ability to determine the existence of an emergency situation requiring legislative intervention

RECENT DEVELOPMENTS i. R v. Crown Zellerbach Canada (SCC, 1988)

Matter of national concern has singleness, distinctiveness or indivisibility that distinguishes it from matters of a provincial nature

The Supreme Court held that marine pollution was a single matter of national concern

The majority set out the following 4 propositions that were “firmly established” by the earlier cases:

1. The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order, and good government power

2. The national concern doctrine applies both to new matters which did not exist at the time of Confederation as well as to matters which, although originally matters under provincial jurisdiction, have since become matters of national concern

3. To qualify as a matter of national concern, a matter must have “a singleness, distinctiveness and indivisibility that clearly 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”

4. It is relevant to consider what would be the effect on extraprovincial interests of a failure to deal effectively with the control or regulation of the intraprovincial aspects of the matter

Newness: if a subject has only recently emerged into public debate, it is unlikely that the provinces will have a firmly entrenched claim to jurisdiction over it. Thus, placing such a matter under federal authority will not intrude onto areas of established provincial jurisdiction, nor will it upset the existing equilibrium of the constitution

Distinctiveness: federal legislation be aimed at a matter that has defined boundaries, so that recognizing this matter as subject to POGG will not unduly interfere with or negate existing provincial regulatory powers

Provincial Inability Test: focuses on the effects in other provinces of a failure by one province. It is not a necessary condition for the national concern branch of POGG

ii. R v. Hydro-Quebec (SCC, 1997) Protection of environment is a valid criminal law purpose

The federal government sought to uphold provisions of the Canadian Environmental Protection Act, dealing with the regulation of toxic substances on the national concern branch of POGG

The majority of the court upheld the provisions on the basis of the criminal law power and did not consider POGG

The dissent, however, found that the legislation could not be justified on the basis of the criminal law power

They went on to find that the environmental provisions at issue lacked the singleness and distinctiveness necessary to be supportable under the national concern branch of POGG

They also held that provisions did not meet the provincial inability test

iii. Friends of the Oldman River v. Canada (Minister of Transport) (SCC, 1992)Distinctiveness

Argued that the provinces had exclusive jurisdiction over certain aspects of the environment and that a federal environmental assessment scheme was therefore ultra vires on inapplicable to provincial projects

The court stated that the environment was an all-encompassing category that lacked the necessary definition to serve as a constitutional category under sections 91 or 92

This meant that either levels of government could pass laws with environmental purposes or effects

The federal legislation must be aimed at a matter that has defined boundaries, so that recognizing this matter as being subject to POGG will not unduly interfere with or negate existing provincial regulatory powers

IV. ECONOMIC REGULATION (TRADE AND COMMERCE) PROPERTY AND CIVIL RIGHTS

i. Property and Civil Rights The most important power assigned to the exclusive

jurisdiction of the provincial legislature The Privy Council held that any laws regulating or dealing

with legal right in a province fell within the subject of property rights (pretty much everything except for criminal law)

Enumerated categories in section 91 were upheld even though they had an incidental impact on property and civil rights

It was interpreted to authorize any provincial regulation over any transaction or activity that occurred within the province

The Privy Council upheld a statute with powers to control the marketing of a natural product in BC on the basis that it applied only to transactions that would be completed within the province (Shannon)

ii. Provincial Powers over Economic Regulation Since Parsons it has been accepted that, in general,

intraprovincial trade and commerce is a matter within provincial power, and the federal trade and commerce powers is confined to interprovincial and international trade and commerce, and “general” trade and commerce

Provinces can indirectly affect extra-provincial trade by decisions which affect cost of production, or decisions which affect retail sales within a province

Provincial regulatory schemes are likely invalid if they directly affect extra-provincial movement by limiting production.

Expansive interpretation of provincial trade powers

One potential difficulty is that provinces might impose conditions or restrictions that favour local producers and effectively bar the sale of cheaper or more desirable imported goods

Provinces have a political incentive to establish discriminatory schemes because local producers may be less organized and lack political clout in the province (Manitoba Egg Reference)

One of the underlying objectives of the confederation was to make sure Canada would operate as a single market

Provinces are not permitted to impede the free flow of goods, services, labour, and capital across provincial borders

iii. Canadian Egg Marketing Agency v. Richardson (SCC, 1971) legislation was aimed at the regulation of interprovincial trade, ultra vires provincial powers

The legislation not only “affects” interprovincial trade but was aimed “at the regulation of such trade” and was therefore unconstitutional

Ultra vires the provincial powers Designed to restrict or limit the free flow of trade between

provinces Constitutes an invasion of the exclusive legislative authority

of the Parliament over trade and commerce Some argued it was indistinguishable from Carnation But decision was right, otherwise provinces could under

section 92(13) erect protectionist and discriminatory barriers creating 10 separate economies in Canada

iv. Carnation Co v. Manitoba Egg and Poultry Association (SCC, 1968) In “pith and substance” the regulation of a local transaction, the effects were not relative, intra vires provincial powers

Expansive approach to provincial jurisdiction over trade matters carried forward from the Privy Council

While the provincial legislation might affect interprovincial or export trade, this was not it’s primary purpose

The main object, or the pith and substance of the law, was the regulation of a local transaction

v. Reference re Agricultural Products Marketing Act (SCC, 1978) Federal legislation with effects on local trade upheld due to cooperation

Court upheld a federal legislation that regulates local trade where the federal legislation is part of a comprehensive and cooperative federal-provincial marketing scheme

The federal regulation of local trade was reinforced by provincial legislation, which mirrored the requirements of the federal law

The existence of a provincial law should, strictly speaking, be irrelevant to the constitutional validity of a federal law

Legislation upheld despite its effects on local trade due to the cooperation between the federal government and provinces

vi. Provincial Jurisdiction over Natural Resources Extended the more restrictive approach to provincial powers

setout in the Manitoba Egg Reference Section 92(A) was introduced to undo the decision in Central

Canada Potash by giving explicit power to provinces to enact laws in relation to the primary production of natural resources found within the province

vii. Canadian Industrial Gas & Oil v. Saskatchewan (SCC, 1978) legislation was ultra vires provincial powers because ultimate aim was a matter outside the province (opposite of Carnation where the true nature of legislation was irrelevant)

The province of Saskatchewan enacted legislation imposing a royalty surcharge on oil produced in the province

CIGOL produced crude oil in Saskatchewan, and virtually all its product was then exported

CIGOL argued the surcharge would affect the price of its product in the extra-provincial market, and the legislation intruded on trade and commerce

Similar to Carnationgood destined for export Difference: scheme was driven by and structured around

international market events Opposite conclusion from Carnation Reinforced by Manitoba Egg Reference, it was clearly no

longer open to a province to assume that legislation that fastened on a transaction occurring within the province was automatically valid, it mattered whether the ultimate aim of the legislation was a matter outside the province

viii. Central Canada Potash (SCC, 1978) True nature of legislation was to regulate the export market, ultra vires provincial powers

Similar approach to CIGOL Saskatchewan tried to stabilize the North American market

for potash by limiting production Argued that property and civil rights gave them power to

impose controls on production of natural resources within the province

Purpose of the legislation was to stabilize international prices

FEDERAL POWERS OVER ECONOMIC REGULATION i. Regulation of Interprovincial and International Trade

Parliament has exclusive legislative authority to regulate international and interprovincial trade

Provincial jurisdiction is limited to the regulation of trade within a province

Doubts have risen about Parliament’s ability to regulate local and intraprovincial trade (Margarine Reference)

ii. Federal Powers Over Economic Regulation The Privy Council ruled that Parliament may not directly

apply controls on the production or local marketing of a product even if such local regulation is merely incidental to a scheme aimed at controlling interprovincial or international trade

The inability to control local production or trade effectively precluded the federal government from regulating trade at the interprovincial or international level

The Caloil case is the SCC early departure from the Privy Council’s restrictive approach

The fact that the regulations might affect local transactions in the imported product did not change the fact that they were in pith and substance aimed at international tradeintra vires federal government (Caloil)

iii. The Queen v. Klassen (SCC, 1960) The Federal government can regulate an entire industry in

order to regulate the extra-provincial/export portion of the industry

iv. Labatt Breweries of Canada v. AG Canada (SCC, 1980) Regulation of a single trade/industry is not of great national concern and national ownership of a trade or undertaking or national advertising of products are not sufficient to authorize the imposition of federal trade and commerce legislation

First branch of Parsons (fed power over interprovincial/export trade) was not applicable as the impugned regulation was concern with local sale and production

Second branch of Parsons (general trade power) was inapplicable→ Regulation of a single trade/industry is not of great national concern→ National ownership of a trade or undertaking or national advertising of products are not sufficient to authorize the imposition of federal trade and commerce legislation

Provisions were concerned with production in a single industry that was substantially local in character

v. General Motors of Canada v. City National Leasing The Revival of the General Trade and Commerce Power

Comprehensive and important restatement of the jurisprudence on the second branch of the trade and commerce power (Parsons Test)

5 part test1. the impugned legislation must be part of a regulatory

scheme2. the scheme must be administered by the continuing

oversight of a regulatory agency

3. the legislation must be concerned with trade as a whole rather than with a particular industry

4. the legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting

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

Described as a five part checklist which is an indication of validity under the trade and commerce power

This case was to determine whether the Combines Act could be upheld under trade and commerce power as oppose to criminal law power, to place a greater emphasis on regulation as opposed to criminal sanctions

Held that the legislation met all 5 parts of the test and was supportable under the second branch of Parsons

vi. Reference re: Securities Act (2011) Act must be filling a gap in order to be valid under the second branch of the trade and commerce test

It has been argued that proposals for federal securities legislation and a national regulator can be upheld as constitutionally valid under the second branch of the trade and commerce power

Others argued that it fell within section 92(13) and 92(16) matters of a merely local or private nature

The court held it was unconstitutional The court cautioned against an overly broad application of

the second branch of the trade and commerce power The court said the matter must be genuinely national in

importance and scope And must be something that the provinces, acting either

individually or together, would not be able to achievethere must be a gap the federal government is trying to fill

They also said the fact that a federal scheme would be more efficient was irrelevant

V. MORALITY AND THE CRIMINAL LAW FEDERAL POWERS OVER CRIMINAL LAW

i. Review: PATA Parliament has jurisdiction over criminal law in broad sense

– it can define what is criminal conduct, based on what violated generally accepted norms of conduct in the era

ii. Federal Powers Over Criminal Law Privy Council held that in order for legislation to be valid

under the criminal law power, there must be a prohibition coupled with a penalty (Margarine Reference added a third criterion)

Differs from POGG and Trade and Commerce in that it can be read more broadly

iii. Reference re Validity of Section 5(1) of the Dairy Industry Act (SCC, 1949) Federal legislation not valid under criminal law power because the Act did not have a criminal purpose

In order for legislation to be upheld under section 91(27) it must contain 3 elements:

1. A prohibition2. Backed by a penalty3. With a valid criminal law purpose

Found that a provision of the Dairy Act Industry could not be upheld under the criminal law power

It met the first two elements, but not the third, it was for an economic purpose

Trade purpose, not criminal purposeiv. RJR Macdonald v. Canada (SCC, 1995) Regulating public

health is a valid criminal law power Court upheld the Tobacco Products Control Act under

criminal law Act prohibited the advertising and promotions of tobacco

products Applied to all dealings with tobacco The court of appeal argued that Parliament cannot

criminalize an ancillary activity when the principal activity remained legal

Criminal law must be applied “in the widest sense possible” Since prohibitions were accompanied with penal sanctions, it

indicated that the Act is criminal law The legislation did not “colourably” invade areas of exclusive

provincial jurisdiction The court held that any law that takes the form of a

prohibition accompanied by a penalty will be valid as criminal law as long as it is directed at an identifiable matter of legitimate public concern

Health was considered a public concernv. Reference re Firearms Act (SCC 2000) The findings of a valid

criminal purpose is not enough to be classified as valid criminal law, there must be a prohibition backed by a penalty

Retreated slightly from the expansive approach to the criminal law power set out in RJR Macdonald

Reference regarding the constitutional validity of the federal Firearms Act

Parliament had expanded the Criminal Code provisions regarding firearms in 1995

Alberta argued that the amendments dealt with matters that did not raise legitimate concern relating to public safety, and were a colourable attempt to regulate property right of firearm owners

The SCC held that the legislation satisfied the three requirements of criminal legislation and was thus constitutionally justifiable on the basis of Parliament’s jurisdiction over criminal law

This case involved the presence of prohibitions backed by penalties

vi. Reference re: Assisted Human Reproduction Act (SCC 2010) Parliament need only have a reasonable basis to expect that its legislation will address a moral concern of fundamental importance to enact a criminal law

Contained prohibitions on various activities including cloning

The majority of the Court applied a very broad application of the criminal law power

PROVINCIAL POWERS TO REGULATE MORALITY AND PUBLIC ORDER i. Provincial Power to Regulate Morality and Public Order

Section 92(15) grants provinces the power to enact “quasi-criminal legislation”

The question when the provinces enact legislation that is also subject to criminal prohibitions found in the Criminal Code is whether they are making a colourable attempt to enact criminal legislation

ii. Nova Scotia Board of Censors v. McNeil (SCC, 1978) Provinces have broad powers to enact penal laws as long as they are primarily regulatory and preventative

Provincial legislation enacted controlling showing of films Found that provinces have broad powers to enact penal laws

as long as they are primarily regulatory and preventative Province can legislate where local moral matters are

involved, as long as provincial legislation does not conflict with valid federal legislation

iii. Westendorp v. The Queen (SCC, 1983) Prostitution is a federal law power

Calgary by law prohibiting prostitution by claiming by-law was to deal with a public nuisance

The SCC found that the by-law was trying to control or punish prostitution directly

iv. R v. Morgentaler (SCC, 1993) Emphasis on the form of the legislation, as oppose to its

underlying purpose or function Legislation prohibited abortions other than in a hospital Abortion historically part of the criminal law A province cannot invade the criminal field by attempting to

stiffen, supplement or replace the criminal law power