1. INTRODUCTION TO CONSTITUTIONAL LAW - Web viewSobeys Store Ltd. v. Yeomans and Labour ... final word on law rests ... Tribunals are simpler that deals with just deals with that topic

Constitutional Law – FALL CANS – Grace Kim

Constitutional Law

FALL CAN

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Table of Contents

1. INTRODUCTION TO CONSTITUTIONAL LAW------------------------------------------------------5

Sources of Constitutional Law--------------------------------------------------------------------------------------5

Evolution of the Constitution---------------------------------------------------------------------------------------5

Organizing Principles of the Constitution-----------------------------------------------------------------------6Reference re: Secession of Quebec (1998)-----------------------------------------------------------------------------7British Columbia v. Imperial Tobacco-----------------------------------------------------------------------------------8British Columbia (AG) v. Christie-----------------------------------------------------------------------------------------8

2. THE COURTS----------------------------------------------------------------------------------------------9

3. CONSTITUTIONAL INTERPRETATION---------------------------------------------------------------9

Watertight Compartment Theory--------------------------------------------------------------------------------10

Living Tree Doctrine-------------------------------------------------------------------------------------------------10Edwards v. AG Canada (Persons case)--------------------------------------------------------------------------------10Employment Insurance Reference-------------------------------------------------------------------------------------11

Judicial Independence----------------------------------------------------------------------------------------------11Beauregard v. Canada----------------------------------------------------------------------------------------------------11Reference re: Provincial Court Judges (1997)-----------------------------------------------------------------------12

Judicial Appointments----------------------------------------------------------------------------------------------12Reference re: Residential Tenancies Act (1981) - ontario--------------------------------------------------------12Sobeys Store Ltd. v. Yeomans and Labour Standards Tribunal (1989)----------------------------------------14Reference re Amendments Residential Tenancies Act (1991) – Nova Scotia--------------------------------14McEvoy v. Attorney General of New Brunswick (1983)-----------------------------------------------------------15MacMillan Bloedel Ltd. v. Simpson------------------------------------------------------------------------------------15

6. CONSTITUTIONAL HISTORY-------------------------------------------------------------------------16Citizens Insurance Company v. Parsons-------------------------------------------------------------------------------16Russell v. The Queen (1887)---------------------------------------------------------------------------------------------17Hodge v. The Queen-------------------------------------------------------------------------------------------------------18AG Ontario v. AG Canada (The Local Prohibition Reference)----------------------------------------------------19Reference re The Board of Commerce Act, 1919-------------------------------------------------------------------20Fort Frances Pulp and Paper Company v. Manitoba Free Press company-----------------------------------20Reference re the Regulation and Control of Aeronautics in Canada-------------------------------------------22Reference re Regulation and Control of Radio Communication in Canada----------------------------------23AG Canada. V. AG Ontario (Labour Conventions) (1937)---------------------------------------------------------24AG Canada v. AG Ontario (The Employment and Social Insurance Act) (1937)-----------------------------25AG British Columbia v. AG Canada (The Natural Products Marketing Act) (1937)-------------------------25AG Ontario v. AG Canada (1937) - Dominion Trade and Industry Commission Act------------------------26AG British Columbia v. AG Canada (1937)– Farmers’ Creditors Arrangements Act------------------------26

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7. DIVISON OF POWERS – FEDERAL & PROVINCIAL HEAD OF POWERS--------------------26

Section 91 - Federal Head of Power-----------------------------------------------------------------------------26

Section 92 – Provincial Head of Power-------------------------------------------------------------------------27

8. DIVISION OF POWER DOCTRINES------------------------------------------------------------------28

VALIDITY – PITH & SUBSTANCE----------------------------------------------------------------------------------28R. v. Morgentaler-----------------------------------------------------------------------------------------------------------29Employment Insurance Reference-------------------------------------------------------------------------------------29

VALIDITY – DOUBLE ASPECT DOCTRINE-----------------------------------------------------------------------30Multiple Access v. McCutcheon----------------------------------------------------------------------------------------30

VALIDITY - ANCILLARY (Necessarily Incidental) DOCTRINE---------------------------------------------31General Motors v. City National Leasing-----------------------------------------------------------------------------31Quebec v. Lacombe--------------------------------------------------------------------------------------------------------32

APPLICABILITY - INTERJURISDICTIONAL IMMUNITY (iji)------------------------------------------------32McKay v. The Queen-------------------------------------------------------------------------------------------------------33Bell#1 - Commission du Salaire Mimimum v. Bell------------------------------------------------------------------33Bell#2 - Bell Canada v. Quebec------------------------------------------------------------------------------------------34Canadian Western Bank v. The Queen in Right of Alberta-------------------------------------------------------34Quebec (AG) v. COPA: Canadian owners & pilots association---------------------------------------------------35Canada AG v. PHS Community Services Society (INSITE)---------------------------------------------------------35Tsilqhot’in Nation v. British Columbia---------------------------------------------------------------------------------36BMO + Marcotte------------------------------------------------------------------------------------------------------------37

OPERABILITY - PARAMOUNTCY----------------------------------------------------------------------------------37Ross v. Registrar of Models----------------------------------------------------------------------------------------------37Multiple Access v. McCutcheon-----------------------------------------------------------------------------------------38Bank of Montreal v. Hall--------------------------------------------------------------------------------------------------39Law Society of BC v. Mangat--------------------------------------------------------------------------------------------40Spraytech---------------------------------------------------------------------------------------------------------------------40Rothmans etc v. Saskatchewan-----------------------------------------------------------------------------------------40

9. POGG – PEACE, ORDER AND GOOD GOVERNMENT------------------------------------------41

3 Branches of POGG--------------------------------------------------------------------------------------------------41Russell v. The Queen-------------------------------------------------------------------------------------------------------42Schneider v the Queen----------------------------------------------------------------------------------------------------42R v. Malmo-Levine---------------------------------------------------------------------------------------------------------42

Test for Emergency Power-----------------------------------------------------------------------------------------42Reference Re: Anti-inflation Act (1976)-------------------------------------------------------------------------------42

Test for National Concern:-----------------------------------------------------------------------------------------44R. v. Crown Zellerbach Canada ltd-------------------------------------------------------------------------------------44Friends of the oldman river society v. Canada (Minister of Transport)---------------------------------------45

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ECONOMIC REGULATION-------------------------------------------------------------------------------45Carnation Co. Ltd. v. Quebec Agricultural Marketing Board :---------------------------------------------------46Manitoba Egg & Poultry (1971) :---------------------------------------------------------------------------------------46Reference Re: Agricultural Products Marketing Act---------------------------------------------------------------47The King v. Eastern Terminal Elevator--------------------------------------------------------------------------------48Labatt Breweries v. AG Canada-----------------------------------------------------------------------------------------49General Motors of Canada Ltd. v. City National Leasing---------------------------------------------------------49

General trade & commerce test (General Motors):----------------------------------------------------------50Reference re Securities act-----------------------------------------------------------------------------------------------50

11. FEDERAL CRIMINAL LAW POWER----------------------------------------------------------------51

P&S test for “criminal law” under s.91(27) (Margeringe Reference):---------------------------------51Margarine Reference------------------------------------------------------------------------------------------------------52RJR MacDonald Inc. v. Canada:-----------------------------------------------------------------------------------------53Hydro-Quebec---------------------------------------------------------------------------------------------------------------54Reference re: Firearms Act-----------------------------------------------------------------------------------------------55Re Assisted Human Reproduction Act - Quebec Court of Appeal-----------------------------------------------55R. v Malmo-Levine---------------------------------------------------------------------------------------------------------57

12. CRIM POWER VS. PROV POWER TO REGULATE MORALITY & PUBLIC ORDER-------58

Prov powers on regulating local intersts in matters of public order & morality:------------------58Re Nova Scotia Board of Censors v McNeil--------------------------------------------------------------------------58Westendorp v The Queen------------------------------------------------------------------------------------------------59Rio Hotel v NB Liquor Licensing Board--------------------------------------------------------------------------------59Arkinstall v. Surrey (City) BCSC------------------------------------------------------------------------------------------60

13. INSTRUMENTS OF FLEXIBILITY IN THE FEDERAL SYSTEM----------------------------------60

A. Federal Spending Power----------------------------------------------------------------------------------------603 Federal Policy Instruments in Creating Pan-Canadian Social Programs:------------------------------60

B. Intergovernmental Agreements------------------------------------------------------------------------------61Reference Re: Canada Assistance Plan (BC)-------------------------------------------------------------------------61

C. Delegation-----------------------------------------------------------------------------------------------------------62Coughlin v. Ontario Highway Transport Board---------------------------------------------------------------------62

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1. INTRODUCTION TO CONSTITUTIONAL LAW

What is Constitutional Law?Dynamic, open-ended set of rules, principles & practices that represent efforts to identify, define, and reconcile competing rights, responsibilities and functions of gov., communities and individuals

BASIC CONCEPTS Separation of powers: separation b/w the 3 branches of gov (executive, judicial, legislative) Judicial review: power of the courts in Canada to determine whether gov action is in

compliance with our Constitution. If they find that it is not, declare to be unconstitutional. (s.96 – 101)

Parliamentary Sovereignty: nothing higher than Act of Parliament, final word on law rests with Parliament, and reliance on political rather than legal accountability – politicians accountable for legislation they pass.

Constitutional Supremacy: s 52 of Constitutional Act 1867 states Constitution is supreme law of Canada, any law inconsistent is of no force/no effect; CAN. COURTS’ PERSPECTIVE, not parliamentary supremacy

SOURCES OF CONSTITUTIONAL LAW

1. Written constitutions (ex. BNA Act, Constitutional Act 1982, Royal Proclamation 1763)2. Common law (Judge made law, common law tests, ordinary statutes)3. Constitutional conventions (unwritten rules, enforced by political sanction, prescribes

the way that legal power is changed.

References are legal questions that are brought to the SCCo They are not binding nor set precedent, but it does give weight

EVOLUTION OF THE CONSTITUTION

British North America Act (1867)o Amendments for that had to go through Westminster Abbeyo Colonial rule

Patriation of the Canadian Constitution 1982 Attempts at amendment of the Canadian Constitution

o Meech Lake Accord (1987) not passed due to lack of support from provincial legislatures and expiry of three year limit in 1990

o Charlottetown Accord (1992) rejected by majority of voters in a referendu

ORGANIZING PRINCIPLES OF THE CONSTITUTION

1. Federalismo Political power is shared by 2 orders of gov: division of powers (s.91 & s.92)o Was the political mechanism by which diversity could be reconciled with unity

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o Facilitates democratic participation by distributing power to the gov thought to be best suited to achieving the particular societal objective having regard to this diversity.

o Facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province

2. Democracy o Electing legal representatives that represent society, promoting self-

government; more than simply majority rule. o Functioning democracy requires compromise, negotiation & deliberation

3. Constitutionalism & Rule of Law

o Rule of law acts as a shield for individuals vs. the state

oo

o Conveys “a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority. At its most basic level, the rule of law vouch safes to the citizens and residents of the country a stable, predictably and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.”

o Constitutionalism s.52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

4. Protection of Minority Rightso Protecting language, religion and education rights; Charter rights (Ex: s 35 -

aboriginal rights)

Elements of the Constitution:1. Parliamentary Democracy: electing legal reps that represent society; promotes self-

government; more than simply majority rule2. Federalism: division of government by provinces. Federal parliament has power over

the nation, provincial legislatures possess power over local concerns3. Individual Rights: individual rights against the state, protects individual rights, limits

state power and intervention

3 elements of the rule of law:(1) Law is supreme over acts of gov’t & persons; ONE law for all(2) Order of law preserved & embodied by the creation &

maintenance of a body of positive law(3) Exercise of public power must be based in a legal

rule/relationship between the state and the individual must be regulated by law.

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4. Aboriginal rights: rights and native titles of Aboriginals that are recognized and protected by the Constitution; it recognizes existing treaty rights of Aboriginals

5. Constitutionalism: legislation/governmental action that can be of no force and no effect if they are found to be inconsistent with the Charter

REFERENCE RE: SECESSION OF QUEBEC (1998)4 organizing principles of the Constitution; Constitutional Supremacy; [Quebec]

FACTSQuebec wanted to separate from Canada unilaterally. Canada put the issue to the SCC to decide.

ISSUE & HOLDING1. Under Constitution, can Quebec secede from Canada unilaterally? No2. Does international law give Quebec the right to secede and do they have a right to self-

determination? No, this only refers to colonies. 3. Does domestic or international law take precedence in secession? Court did not answer

this Q as first 2 Qs were in the negative.

RATIONo right of unilateral secession. Unilateral secession of Quebec would be unconstitutional. There is a right to secede provided that the province has a referendum with a clear question and a clear answer. Once it has that, it has a duty to negotiate with the other provinces the terms of separation within the terms of a constitutional amendment

REASONINGSCC used the 4 Unwritten Principles arising from Confederation: Federalism, Democracy, Rule of Law, Protection of Minority Rights. Courts to turn these principles into the premises of a constitutional argument to fill in gaps in the express terms of a constitutional text.

Principles have to be interpreted together. Quebec’s position was that b/c of constitutional democracy, they could secede. SCC said it would not allow one of the principles to trump another. Quebec may be a distinct political unit, however this is the same for all provinces. Also upholding right of minorities is a goal but no distinct people in Canada are more or less significant than the other. Ultimately, Quebec, has obligations to negotiate to secede under the Constitution.

Legal Outcomes Is the ability to secede under the Constitution an obligation to “negotiate”? Questions regarding “unwritten” constitutional principles – how are they applied? This case left open issue of constitutional challenges based on these principles.

BRITISH COLUMBIA V. IMPERIAL TOBACCO

Rule of law; judicial independence; [tobacco company]

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FACTSBC passed Tobacco Damages Act which gave gov power to sue tobacco manufacturers for recovery of health care costs from people suffering from tobacco related illnesses. Tobacco companies said this Act was challenging its constitutional validity on 3 grounds.

ISSUEConstitutionality of legislation challenged on 3 groundso Extra territoriality – NO, this is not ultra vires of the province. P+S fell under property & civil

rights.o Breach of judicial independence – NO, this act still slows judges to reason independently

and allow their rulings to stand without interference.o Breach of the rule of law - NO. Rule of law is an unwritten principle, but is not a written,

explicitly stated part of the constitution and thus, on its own, can’t be used to attack constitutional validity of the legislation

RATIOUnwritten principles cannot be used on its own to attack a constitutional validity of legislation. However, a court may strike down a law in cases where judicial independence might be threatened.

BRITISH COLUMBIA (AG) V. CHRISTIE Rule of law; [legal services tax]

FACTSBC’s Social Service Tax Amendment Act imposed a 7% tax on the purchase price of legal services within the province on the purchase price of legal services within the province. Christie challenged the constitutionality of the legal service tax.

ISSUEIs general access to counsel is part of “rule of law”?

RATIOThe right to counsel is not recognized as an aspect of the rule of law, and therefore is not constitutionally guaranteed. The right to counsel is understood to apply to only criminal context.

ANALYSISGeneral Access to legal services to court/tribunal proceedings is not a fundamental aspect of rule of law. Right to legal services can be raised specifically in a Criminal context under s.10(b). S 10(b) does not exclude a finding of a constitutional right to legal assistance in other situations.

2. THE COURTS

3 level of courts in British Columbia:

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o Each province has a superior trial court, superior appellate court and a system of provincial (inferior) courts that includes, small claims, young offender courts etc.

1. Provincial Court- Appointed by the province- Both criminal & civil matters- Statutory jurisdiction

2. Supreme Court of BC (Superior)- s.96 courts ( inherent jurisdiction ) : federally appointed judges, administered &

paid provincially- S.96 carried on the authority from imperial courts, from before Confederation

and s.96 recognizes this; inherent jurisdiction means that this court pre-existed s.96 and any statute

- “Masters” are appointed provincially to Supreme Court. Have different powers than the justice of the superior court; they lack inherent jurisdiction

- When federal law is challenged on constitutional grounds, provincial superior courts will remain jurisdiction over such challenges

3. Provincial Court of Appeal- This court first established by statute- Appointed federally as well (adjunct of s.96 court)

4. Supreme Court of Canada* - (s.101): gives Parliament power to create a "general court of appeal for Canada"

and "additional Courts for the better Administration of the Laws of Canada" (Residential Tenancies Act)

- 9 judges - SCC has a unifying effect on provincial laws

3. CONSTITUTIONAL INTERPRETATION

APPROACHES TO INTERPRETING CONSTITUTION:1. Historical – interpreting the intent of the original draftsmen of the Constitution2. Textual – drawn from the present sense of the words; meaning of words (Ex –

Edwards/Persons Case)3. Doctrinal – uses a framework analysis; argument from previously decided cases;

precedent4. Prudential (practical) – argument about costs & benefits; “practical argument”;

(Ex. R. v. Oakes – whether or not society loses more than it gains as a result of gov. action)

5. Ethical – exercising their power ethically; examines the moral content of a law6. Structural – reading diff parts of Constitution together, looking at larger structure of

Constitution to arrive at interpretation (Ex: Quebec Secession Reference)

WATERTIGHT COMPARTMENT THEORY

Division of power perspective:- s.91 & s.92 should be interpreted so as to avoid any overlapping between them.

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- The categories in s.91 & 92 were “exclusive legislative jurisdiction” of respective government

- Lord Atkin (Labour Conventions case): It is a metaphor to elude to the “impermeable jurisdictions of federal & provincial powers” like the watertight compartments that makes the “Canadian ship of state” run

However now, we are moving away from this perspective in accepting that powers & responsibilities of each government collides – and we use different division of power doctrines to reconcile

LIVING TREE DOCTRINE

Living Tree Doctrine:o The idea we’re going to interpret the Constitution where there are gaps/ambiguity, in

light of the present day sit’n; continually evolving doctrineo Constitutional doctrine of interpretation that says a constitution is organic and must be

read in a broad and liberal manner so as to adapt it to changing the times.o Practical approach – not a historical approach

EDWARDS V. AG CANADA (PERSONS CASE)Living Tree doctrine; [women as persons]

Ratio: “Qualified Persons” could be read broadly to include women. Interpretation is not bound by original intent, and is open to new interpretations & circumstances to adapt to changing times – LIVING TREE DOCTRINE

Issue & Holding: Does “qualified persons” in s 24 BNA include a woman – whether then, if women are eligible to be summoned to & become members of Senate? Yes!

AnalysisInitially, “persons” was read textually (in determining what encompasses “persons”) AND historically (in what was meant when making the law to include “persons”). Then the Court determined it should be read as a living doctrine to encompass the modern day interpretation of PERSONS as including women.

Evidence that was considered:1. External: derived from extraneous circumstances. E.g. previous legislation & decided cases. - Original meaning of “persons” included women, but original intent in 1867: women were NOT persons, in position of legal incapacity, and could not vote. - Lord Brougham’s Act 1850: provided that in all acts words importing the masculine gender shall be deemed and taken to include female unless contrary was stated. But the fact that no woman had served office is not of great weight when it is remembered that custom would have prevented that; therefore the appeal to history is not conclusive in present case. 2. Internal: Derived from Act itself; “Living Tree” analogy – continued growth & expansion. Look to Preamble: “persons” & “members” throughout Act including women in meaning. Looked at text.

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- Court, in making its decision, considered: Object of Act – proving constitution for Canada; “persons” is ambiguous, may include members of either sex (constitution is gender neutral);

EMPLOYMENT INSURANCE REFERENCE

Living Tree Doctrine; P+S; [maternity benefits] FACTSThis case involved concern over the validity of the maternity & parental benefit provisions of the Employment Insurance Act; Quebec Gov stated these provisions were directed at supporting families with children, and thus fell within s 92(13) – “Property & Civil Rights” & or s 92(16) “General matters of the province”. The position of the federal gov was that the provisions were directed at providing replacement income for working parents when their employment is interrupted as a result of the birth or adoption of a child and fell within “Unemployment Insurance” in s 91(2A). FED ACT INTRA VIRES: UNEMPLOYMENT INSURANCE

ISSUE & HOLDINGWhether the maternity provisions in P+S enacted federally are valid. YES!

ANALYSISLiving Tree Approach:

o Progressive approach to adopt to new realities of a workplace in regards to maternity provisions in Employment Insurance Act

o Social measure to preserve economic security: fits federally

JUDICIAL INDEPENDENCE

Judicial Independence:Concept that the judiciary needs to be separate from other branches of the gov. Courts should stay impartial and away from improper influence of other branches, or private interests to maintain separation of powers. 3 aspects of keeping judicial independence: (1) financial security, (2) security of tenure, (3) institutional independence

BEAUREGARD V. CANADA

Judicial independence- “The essence of judicial independence for superior court judges is complete freedom

from arbitrary interference by both executive and the legislature… they can’t interfere with the financial security of superior court judges”

REFERENCE RE: PROVINCIAL COURT JUDGES (1997)Judicial independence

ISSUEDecreasing salary of provincial judges – protected constitutionally?

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RATIOJudicial independence is a constitutional principle that applies to ALL judges

ANALYSIS3 aspects of judicial independence:

1. Financial securityo Established to be an independent bodyo You can’t remove/reduce a judge’s pay – what does this in theory do? That the

judges will be protected from the punitive actions of the gov if they didn’t like the judges’ decision or so that judges can’t be bribed to guarantee impartial decisions

2. Security of tenure 3. Institutional independence

o Charter only applied to criminal cases, you were not granted an independent tribunal – are there constitutional protection for provincial courts

o This almost granted Charter-like protection to the judgeso Provincial judges are almost as constitutionally protected as the Supreme judges

JUDICIAL APPOINTMENTS

s.96 The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

The Judicial Appointment Processo (s.96) GG appoints superior court judges; Lieutenant Governor of a province appoints

provincial court judgeso (s.92) – Governor in council (Cabinet) makes Federal Court of Appeal & Federal Court

appointmentso In practice, the PM selects SCC judges on the advice of the Minister of Justice, but recent

years the Parliament plays a great role in these appointments Greater parliamentary involvement in the process is to ensure that a balance is

maintained b/w the power of the judiciary and Parliament

REFERENCE RE: RESIDENTIAL TENANCIES ACT (1981) - ONTARIO

Established a 3-part test for determining an infringement of s.96 by a certain power/jurisdiction/tribunal (Residential Tenancies test):

Facts:Developed a statutory scheme that set out the obligation of tenants and landlords that set out rights of the landlord & tenants. Then set out a tribunal that would hear these disputes between landlord and tenants.

(Note: Why might use tribunals?

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- Tribunals are simpler that deals with just deals with that topic at hand that doesn’t need the complexity of a trial court;

- Tribunals are more efficient; as well as tribunals can build expertise that may be better than courts to deal with these specific cases)

- However, tribunals might create an issue of separation of powers

s.96 authorizes federal gov to appoint judges for superior courts It is basis for the claim that judicial function can’t be eroded through provincial legislatures, or even Parliament To preserve the rule of law

Established a 3-part test for determining an infringement of s.96 by a certain power/jurisdiction/tribunal (Residential Tenancies test):

1. Does the power/jurisdiction/tribunal in question broadly conform to the power/jurisdiction exercised by superior Courts (s.96 courts) at the time of Confederation (1867)? Historical inquiryIn this case, YES - it was characterized as disputes b/w tenants and landlords and it was deemed as jurisdiction that was exercised pre-Confederation

2. If YES, is the power/jurisdiction/tribunal in question performing a judicial function? Is it principle of the policy?

What makes it diff from an administrative function with a judicial function? Maybe the degree of dispute, the ability of tribunals to make orders, between private litigants, idea of “principle” that may establish a rule Tribunal appoints are made by statute, not protected constitutionally

3. If YES, what is the context of the tribunal as a whole?; is it just ancillary/supplementary to a policy scheme? Courts are asked to review the tribunal's function as a whole in order to appraise the impugned function in its entire institutional context. The Commission fails at the 3rd step:The impugned provision is ultra vires – the primary function of this Commission was the resolution of disputes b/w landlords & tenants which reflects a judicial form and was thus

Look at the context – if the courts decide if it’s incidental/ancillary to the larger provincial jurisdiction(is the removal of judicial power the main point of exercise, the main point of the exercise rather than just an ancillary part of a larger reform of the way that the jurisdiction is exercised?)

*If the answer to all these questions is YES, then it is unconstitutional to remove this power*

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SOBEYS STORE LTD. V. YEOMANS AND LABOUR STANDARDS TRIBUNAL (1989)FactsYeomans was fired by Sobeys. He complained to the director Labour Standards and he was to be reinstated with compensation. Sobeys successfully appealed to Nova Scotia Court of Appeal that the tribunal did not have authority to hear the case. The SCC held that the tribunal did have the authority to hear the case.

Rule

Application of the Residential Tenancies Test:1) Does the power/jurisdiction/tribunal in question broadly conform to the power/jurisdiction exercised by superior Courts (s.96 courts) at the time of Confederation (1867)?Yes, characterized as historic master-servant law VS. Characterized as a comprehensive scheme that is new that deals with new employee/employer rights, provisions, entitlements, etc.

- If the power is new, there can be no conflict with s.96 because it couldn’t have been within the jurisdiction of superior courts at the time of Confederation. - In this case, this power is not new.

2) If YES, is the power/jurisdiction/tribunal in question performing a judicial function? It was found that the director was found as acting as lawyer, and had a judicial function component to the power. It’s a body that administers disputes of labour standards – which reflects a judicial function.

3) If YES, what is the context of the tribunal as a whole?; is it just ancillary/supplementary to a policy scheme? Courts are asked to review the tribunal's function as a whole in order to appraise the impugned function in its entire institutional context.

In context of the tribunal however, the primary function of the labour standards tribunal was to provide protection for non-unionized workers, and thus, the judicial function is merely ancillary to its primary purpose.

Internet Court Claims- If this tribunal is dealing with claims so specific and so small, and were not

economical to pursue in Court, it may not have been the jurisdiction of s.96 courts

REFERENCE RE AMENDMENTS RESIDENTIAL TENANCIES ACT (1991) – NOVA SCOTIA

Re-iteration of the Residental tenancies test:This case is not a novel power under test 1 – but this case could be used as authority to determine when it is.

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(McLachlin)1. The residential tenancies power is NOT a new jurisdiction. However, this residential

tenancies power was shared between the superior & inferior courts and was a power that existed before confederation.

THUS, IT CANT BE IN CONFLICT WITH SECTION 96 BECAUSE IT NEVER HAD SOLE JURISDICTION IN SUPERIOR COURTS (s.96) IT’S ALWAYS BEEN SPLIT WITH INFERIOR COURTS EVEN BEFORE CONFEDERATION.

MCEVOY V. ATTORNEY GENERAL OF NEW BRUNSWICK (1983)Parliament can no more give away federal constitutional powers than a province can take them

FACTSNB act to creat provincially appointed court to try cases under Criminal Code

ISSUE- Is it intra vires the Parliament or legislature of a province to take jurisdiction from a s.96

(superior) court and confer it onto another court?

RATIOCriminal cases part of s.96 courts in 1867; Parliament can no more give away constit powers than Provinces can uspurp them

Provincial court wanted to make a unifying criminal court- However, the SCC said that the “Parliament can no more give away federal

constitutional powers than a province can take them”. Thus, interpreting s.96 restricts Parliament as well as provincial legislatures

- But it’s for rule of law that the judges who impose the sentence or adjudication that they have judicial independence

- Division of powers between prov. and federal give structures, but not necessarily grant rights

Gives exclusive jurisdiction for crimes committed by young offenders

MACMILLAN BLOEDEL LTD. V. SIMPSON

The court has affirmed the idea that constitution places superior courts typically defined in “terms as a core of a jurisdiction” or slightly on diff terms, “inherent jurisdiction” outside the reach of ordinary legislative action. Province can’t remove or oust a core jurisdiction of a Court- the Court has to retain the original core jurisdiction to make sure that people obey, if you remove that power, the people will not obey

This was established under a premise of novel jurisdiction Jurisdiction that governs committed by crimes committed by teens (not novel)VS.Jurisdiction that governs Young Offenders as defined by the Young Offenders Act

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(this may be a novel jurisdiction)

This case didn’t really change the law, and didn’t restrict what the judges could do but merely redirects the powers to a diff court depending on if they were young offender or not

This was not just an amendment of jurisdiction, but removal of one power from jurisdiction to give to another jurisdiction Province can’t remove or oust a core jurisdiction of a Court- the Court has to retain the original core jurisdiction to make sure that people obey, if you remove that power, the people will not obey Core jurisdiction: power to enforce orders through contempt proceeding

The legislation in this case reached into the powers of the Court, and changed the things that judges could do

6. CONSTITUTIONAL HISTORY

CITIZENS INSURANCE COMPANY V. PARSONS Fed T&C v. Prop & Civil Rights; Division of T&C powers

Facts: Ontario enacted legislation about fire insurance policies that specified a set of standard conditions which were deemed to be a part of every policy of fire insurance. Parsons brought an action on 2 insurance policies, written by 2 different insurers to recover compensation for losses caused by fire in his hardware store. Citizens refused to pay Parsons. Parsons sued Citizens for not complying with Ontario Act; Citizens argues that Act ultra vires Province b/c it’s really legislation relating to 91(2) – trade and commerce

Dispute b/w 91(2) VS. 92(13)

Issue: Is Ontario Act ultra vires province? No, Act is valid – intra vires the province.

Rule: Business & contractual issues that take place wholly within the provinces fall under s 92(12), while international interprovincial & general trade and commerce issues fall under s 91(2). Federal gov does not have the right to regulate business within a province.

Analysis/Application: Finds insurance as property If province has powers to create corporations, give them the ability to make contracts – then how can the details of those contracts not also be within provincial powers?

Montague Smith: “It would have been unnecessary to specify if authority over all contracts and the rights arising from them has

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belonged to the dominion parliament.” “Dominion’s authority to legislate for the regulation of trade

and commerce doesn’t comprehend the power to regulate by legislation the contracts sof a particular business or trade, such as the business of fire insurance in a single province, and therefore that its legislative authority does not in the present case conflict or compete with the power over property and civil rights assigned to the legislature of Ontario.” (p.103)

Conclusion: The Act in question is validGeneral Notes:

- The power to negotiate contracts between private individual is within the jurisdiction of the province – if the province is to be sovereign, its powers need to be defensible against the broad powers of the federal gov. This case established the idea that with respect to private dealings, the province is going to be the main player and the federal gov is going to prove its interests

- Under s.92(13) – property & civil rights – provincial jurisdiction

RUSSELL V. THE QUEEN (1887)Fed and prov legislation temp; temperance = national concern

Facts: Act passed regarding selling liquor. Russell charged with not complying with the request, Act is challenged that federal gov did not have the constitutional authority to enact the law

Issue: Is Canada Temperance Act ultra vires federal government? No, act is valid.

Whether a law controlling retail sale of alcohol would fit into s. 92?→ If yes, can it fit within federal head of power?

s.91 – POGG (peace, order, governance and good gov)VS. s.92(9) - Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes. & s.92(16) - generally all matters of the province

Rule: Court held act intra vires Parliament under s 91(2) Trade & Commerce.

Reason for Parliament to pass the Act- should be uniform legislation in all the provinces respecting the traffic in intoxicating liquors – view to promote temperance through uniform law throughout the Dominion – establishes POGG in the broadest sense

Analysis/Application: Law regarding control of the sale of alcohol does not fit under any of the provincial head of jurisdiction – we are not told which specific head this falls under for the feds. However, prohibition likely falls under the federal residual power under Peace. Order and Good Governance (POGG).

Conclusion: Act does not fall under s 92, therefore must be in s 91 – intra

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vires Parliament. Federal legislation upheld under federal residual general power (POGG), temperance qualifies as a national concern.

Act was valid

Notes about this case:- Dominion (Federak) has power to make laws for peace and order (POGG) under s.91

unless the subject falls within some one or more of the classes of subjects, which were assigned in s.92 to the Provinces

HODGE V. THE QUEEN

Both pieces of federal and provincial legislation can be valid; both legislatures in their respective jurisdiction governing the same areas can co-exist w/o in conflict.

Facts: Hodge charged with permitting billiards to be played in his tavern, contrary to regulations made by licence commissioners for Toronto

Challenged Act on 2 grounds:o 1) it conflicted with the Dominion power over trade and

commerceo 2) provincial legislature could not delegate law making

powers to the Boards of Commissioners based on fact that Canadian legislatures were

created by British Parliament limited to common law because delegates not

sovereign legislatures- Challenge to provincial authority:

s.91(2) Federal power - trade & commerceVS. s.92(15) Provincial power - 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 this Section.

Rule: We learn in this case, that if there is a case bordering on the division of powers it does not necessarily mean that the federal will always triumph. Provincial powers are recognized and kept.

S. 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 this section”

Analysis/Application: CA: argument about regulation of trade and commerce was hopeless

Powers cannot be said to interfere with the general regulation of trade and commerce which belongs to the Dominion Parliament – they do not conflict with the provisions of the Canada Temperance Act- have not been locally adopted

Opinion in relation to ss. 4 and 5 of the Act: Ontario legislature acted within the Imperial Act of 1867, no conflict with the

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powers of the Dominion Parliament S. 92(15): applicable to case : imprisonment means restrainst by

confinement in a prison, with or without its usual accompaniment… (p.110)

Conclusion: Appeal dismissed – provincial regulation is good, preserve this power

We learn in this case, that if there is a case bordering on the division of powers it does not necessarily mean that the federal will always triumph. Provincial powers are recognized and kept.

AG ONTARIO V. AG CANADA (THE LOCAL PROHIBITION REFERENCE)Both pieces of federal and provincial legislation can be valid; both legislatures in their respective jurisdiction governing the same areas can co-exist w/o in conflict.

Facts: In 1890, the Ontario had passed a statute which gave municipalities the power to introduce prohibition (similar to the Canada Temperance Act). In 1894, while contemplating total prohibition, Ontario asked the courts about the legality of pieces of legislation.

Issue: Does a province have the power to legislate prohibition?

Rule: If a subject matter is broadly defined, it can have provincial and federal aspects (double aspect doctrine); if this happens, paramountcy is an issue

Fed argues POGG that *there is limit on its use as it touches matter of provincial jurisdiction→But Fed can only rely on POGG for matters for national dimensions→ can not use POGG where prov has power to legislate

Arguments that ON could have enacted the provision:1. s.92(8) to create municipal institutions – this simply just gives them the right to create a legal body for the management of municipal affairs2. s.92(9) shops, saloon, tavern, in order to raise revenue – held in Hodge that cannot be construed as authorizing the abolition of the sources from which revenue is to be raised3. s.93(13) and (16), property and civil rights, and generally all matters of a merely local or private nature.

Analysis/Application: Dominion Parliament has no authority to encroach upon any class of subjects which is exclusively assigned to provincial legislatures by S.92

That provisions are or will become inoperative in any district of the province which has already adopted, or may subsequently adopt, the second part of the Canada Temperance Act (119)

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Conclusion: Appeal allowed – province could enact legislation

REFERENCE RE THE BOARD OF COMMERCE ACT, 1919FIRST INTRODUCTION TO POGG

Facts The federal statutes in question were designed to limit cartels, monopolies and mergers as well as speculative hoarding. The Board of Commerce encountered resistance, and arranged for a Supreme Court reference.

So in SCC 3-3 split and taken to JCPC (UK Court)Issues Whether federal government can deal with price fixing, and if this

regulation can be derived from POGG? Does the Board have power to make a specific order setting profit

margins for clothing prices in Ottawa?Rule Only under necessity in high exceptional circumstances the liberty of the

inhabitants of the Provinces may be restricted by the Parliament of Canada, and that the Dominion can intervene in the interests of Canada as a whole These high exceptional circumstances, can include time of war, and this state of national emergency allows these POGG powers

Analysis When at SCC level it was split 3/3 – therefore went to JCPC which determined it was not POGG, and fell within provincial jurisdiction.I: Is this valid federal legislation?R: Lord Haldane further constrains POGG, 91(2) and 91(27). He says: POGG can only apply in national emergencies; 91(2) cannot interfere with trades without resort to another federal head of power; and 91(27) only applies to subject matters that already belong under criminal jurisprudence.He also expands 92(13) to include the liberty to conduct any business (except those specifically assigned in 91 in any manner.A: Given the above understandings, regulation of business does not fall under any federal head of power and is captured within a provincial head of power.C: Therefore, the federal statutes cannot be valid.

Conclusion Appeal dismissed

FORT FRANCES PULP AND PAPER COMPANY V. MANITOBA FREE PRESS COMPANY

Facts This case dealt with regulation of prices for newsprint It shared the social and economic background of the Board of Commerce

case, but it involved the same legislation War Measures Act – gave the government power to do whatever it

considered necessary or advisable for the security, defense, peace, order and welfare of Canada

Under this act, the government regulated prices of newsprint in a series of

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different administrative arrangements – Paper Control Tribunal The Controller made an order about prices and ordered the Fort Frances

Company to repay whatever it had received from the Manitoba Free Press in excess of these prices

Fort Frances refused to pay A trial judgment allowing the claim was affirmed by the Ontario Court of

Appeal and the defendant appealed directly to the Privy CouncilIssues When can it be said that the necessity altogether ceased for maintaining

the exceptional measure of control over the newspaper print industry introduced while the war was at its height?

When did the state of Canada which the war had produced so entirely pass away that the legislative measures relied on in the present case became ultra vires?

Did the Dominion have constitutional authority to regulate the prices?Rule Dominion is excluded from trenching on property and civil rights in the

Province, yet in a sufficiently great emergency, there is implied power to deal adequately with that emergency for the safety of the dominion as a whole – s.92 is not repealed in any way

Analysis Shows that the Dominion parliament cannot ordinarily legislate so as to interfere with property and civil rights in the provinces, it could not have done what the two statutes under consideration purport to do had the situation been normal

Recognize that exceptional cases where such a power may be implied When war broke out it may be requisite to make special provision to

ensure the maintenance of law and order in a country, even when it is in no immediate danger of invasion

There is no clear and unmistakable evidence that the government was in error in thinking that the necessity was still in existence at the dates on which the action in question was taken by the Paper Control Tribunal

Regulations relating to paper control are to remain in force until the end of another session of parliament

Unable to say that the dominion government had no good reason for thus temporarily continuing the paper control after actual war had ceased, but while the effects of war conditions might still be operative

Conclusion Appeal dismissed. – Legislation upheld on POGG power

DEPRESSION ERA

REFERENCE RE THE REGULATION AND CONTROL OF AERONAUTICS IN CANADA

Parliament has jurisdiction to implement treaties as per s.132; Aeronautics is fed – fall under POGG & s.91(2) (5) (7)

FACTS

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Canadian parliament enacted legislation and regulations implementing this convention stemming from international treaties and regulating aeronautics in a comprehensive way (licensing pilots, aircraft, etc.)

Reference was made to the SC to determine the validity of this legislation. It held, in a series of divided judgments, that the subject of aeronautics was generally

one for the provinces but that the Dominion had paramount, although not exclusive, authority to implement the convention under s.132.

Issue:Did the dominion have the authority to enact the legislation? Would something novel fall under the federal jurisdiction?Ratio:Aerial navigation belongs to the Dominion because of:• The terms of s.132• The terms of the Convention (treaty)• S.91 (2) trade and commerce (5) postal and (7) military

Analysis:

As useful as decided cases are, always advisable to get back to the words of the Act itself and to remember the object with which it was passed.

The Act embodies a compromise under which the original provinces agreed to federate. While the courts should be jealous in upholding the charter of the provinces as enacted

in s.92, it must no less be borne in mind that the real object of the Act was to give the central Government those high functions and almost sovereign powers by which uniformity of legislation might be secured.

There may be cases of emergency where the Dominion is empowered to act for the whole. by terms of s.132 where Canada as a whole, having undertaken an obligation, is given the power necessary and proper for performing that obligation.

Respondents contended that aeronautics as a class of subject came within s.92(13) (property and civil rights in provinces) or s.92(16) (generally all matters of a merely local and private nature in the province).

In their lordships’ view, transport as a subject is dealt within certain branches both of s.91 and s.92 but neither of those sections deals specially with that branch of transport which is concerned with aeronautics.

They consider the governing section to be s.132 which gives to the Parliament and GOV all powers necessary or proper for performing the obligations towards foreign countries arising under treaties between the Empire and such foreign countries.

Dominion Parliament not only has the right, but also the obligation to provide by statute and by regulation, that the terms of the Convention shall by duly carried out.

Conclusion:

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Appears to the Board that it must necessarily belong to the Dominion under its power to make laws for POGG - Regulation of aviation is a matter for the Dominion, are matters of national importance and interest

REFERENCE RE REGULATION AND CONTROL OF RADIO COMMUNICATION IN CANADA

Radio is POGG; Living TreeFacts:

Late 1920s Dominion government entered into a series of international agreements about radio.

After enacting legislation to implement these agreements, the government made a reference asking whether it had the power to regulate radio.

In the SC, the conventions and s.132 were barely mentioned and a majority held that the Dominion had power under POGG.

The leading consideration in the judgment of the board was that the subject fell within the provisions of s.132 of the BNA Act, 1867, which is as follows:

o “The Parliament and GOC shall have all powers necessary or proper for performing the obligations of Canada or of any province thereof as part of the British Empire towards foreign countries arising under treaties between the Empire and such foreign countries”

o Side note: broadcasting had not yet been invented when the BNA was first drafted

Issue:

Has the Parliament of Canada jurisdiction to regulate/control radio communication?

If not, to what extent is the jurisdiction of Parliament limited?

Conclusion:

SCC held that radio communication is subject to the legislative jurisdiction of the Dominion Parliament.

Note:Being therefore not explicitly mentioned in s.91 or 92, such legislation falls within the general words at the opening of s.91 which assign the Government of the Dominion the power to make laws for the POGG of Canada “in any relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the legislatures of the province

AG CANADA. V. AG ONTARIO (LABOUR CONVENTIONS) (1937)Fed gov can only have treaty power over s91; watertight compartments

Facts

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A reference for the Limitation of Hours Work Act: set eight hours a day and 48 hours a week as the maximum (workers rights legislation)

Also a reference for the Weekly Rest in Industrial Undertakings Act: a rest period of at least 24 consecutive hours for industrial workers

Also a reference for the Minimum Wage Act: power to establish minimum wages

Issue Was it within the Dominion (federal) right to use s.132 (treaty power) of the

Constitution to enact the above powers even though it infringed on s.92 of the provinces rights to autonomy?

S.132 – The parliament and government of Canada shall have all powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as part of the British Empire towards foreign countries, arising under treaties between the empire and such foreign countries.

S. 91 (federal) v. s.92 (provincial)

Rule For the purpose of s.91 and s.92, the distribution of legislative powers between the

dominion and the provinces, there is no such thing as treaty legislation as such. The distribution is based on classes of subjects; and as a treaty deals with a particular class of subjects so will the legislative power of performing it be ascertained.

Analysis/Application S.132 has no binding power anymore, because it was made at a time when Canada was

still under the rule of the British Empire So now since, the treaty power now only rests within federal powers and not the

British Empire, and arguably this was deemed by the Court as dangerous to override provincial powers under this treaty power – therefore, felt the need to put the brakes on the federal powers.

One side felt that the treaty came within section s.132 because of Canada’s increased independence and the Dominion’s power to enter into international obligations

The other side contested that POGG didn’t give the dominion power; they also argued that the treaty needed provincial consent under s.92

Parliament can chose to fulfill treaty obligations or not – they are not bound by the state A “novus actus” not defined by the treaty (the executive does not have unfettered

discretion) Inter-provincial power given by the BNA Act (Constitutional safeguards against

provincial autonomy)

Conclusion Appeal allowed (Dominion failed – provinces won) Legislative powers need to remain distributed The act was ultra vires of the federal

AG CANADA V. AG ONTARIO (THE EMPLOYMENT AND SOCIAL INSURANCE ACT) (1937)Facts

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Employment and Social Insurance Act provided for compulsory insurance against unemployment for workers

Bennett (PM) chose not to make the Act a part of the international obligation so that it wouldn’t be connected with relief assistance

Issue Is the Employment and Social Insurance Act a violation of s. 92?

Rule If an Act by the federal regulates contract and employment in Canada, it violates s. 92 of

the constitution

Analysis/application It is a “pith and substance” and not something that can be justified by POGG The Act dealt with property and civil rights, because it dealt with insurance – a provincial

power

Conclusion Appeal dismissed Ultra vires of the federal

AG BRITISH COLUMBIA V. AG CANADA (THE NATURAL PRODUCTS MARKETING ACT) (1937)Facts

The Natural Products Marketing Act was to establish regulation of natural products for the benefit of producers and to establish effective marketing arrangements/to impose pooling to equalize prices in particular products and areas

The Act was limited to products in which the principal market was outside the province of production (the products were, at least in some part, exported)

Issue Is the Natural Products Marketing Act a s.91 act? Does it violate s.92?

Rule The regulation of trade and commerce does not permit the regulation of individual

forms of trade or commerce confined to the province

Analysis/application The act is local, therefore beyond the jurisdiction of parliament The regulations contemplated do not effect trade as whole (general trade); they are

exclusively local The King v. Eastern Terminal Elevator Co. (1925): Parliament cannot acquire jurisdiction

in the sweeping way in which these enactments operate

Conclusion Appeal dismissed

New Deal Cases

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AG British Columbia v. AG Canada (1937) Court of Appeal The amendments to the criminal code prohibit two kinds of conduct

o 1. Selling goods at prices that discriminate among competitorso 2. Selling goods at prices designed to eliminate competitors

The SCC held these provisions valid; Criminal is under federal jurisdiction Some limits needed to be added so the Dominion could not exclude provinces entirely

(but not relevant here) As long as the criminal provisions enacted by Parliament do not encroach on s.92 they

are valid Privy Council upheld SCC decision

AG ONTARIO V. AG CANADA (1937) - DOMINION TRADE AND INDUSTRY COMMISSION ACT

The Act contained two major parts:o 1. Authorized administrative approval for agreements among businesses to

restrict undue competitiono 2. Established a national trademark “Canada Standard” to be used to identify

products that complied with standards set by the Dominion SCC found both parts invalid

o The first part because of the judgement in Natural Products Marketing Reference; the second because parliament possess no competence to create a civil right of a new kind

Privy Council upheld the first ruling by the SCC but not the secondo The second part could be upheld under s.91(2) – the creation of novel fields

AG BRITISH COLUMBIA V. AG CANADA (1937)– FARMERS’ CREDITORS ARRANGEMENTS ACT

Established administrative boards with powers to impose compromises or extensions of farmers’ obligations to their debtors

Both the SCC and Privy Council upheld it under s.91(21): Dominion’s power to legislate on bankruptcy and insolvency

7. DIVISON OF POWERS – FEDERAL & PROVINCIAL HEAD OF POWERS

SECTION 91 - FEDERAL HEAD OF POWER

s.91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

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1. Repealed. 1A. The Public Debt and Property (paying off debt)2. The Regulation of Trade and Commerce.2A. Unemployment insurance3. The raising of Money by any Mode or System of Taxation.4. The borrowing of Money on the Public Credit.5. Postal Service.6. The Census and Statistics.7. Militia, Military and Naval Service, and Defence 8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.9. Beacons, Buoys, Lighthouses, and Sable Island.10. Navigation and Shipping.11. Quarantine and the Establishment and Maintenance of Marine Hospitals.12. Sea Coast and Inland Fisheries.13. Ferries between a Province and any British or Foreign Country or between Two Provinces.14. Currency and Coinage 15. Banking, Incorporation of Banks, and the Issue of Paper Money.16. Savings Banks.17. Weights and Measures 18. Bills of Exchange and Promissory Notes.19. Interest.20. Legal Tender.21. Bankruptcy and Insolvency.22. Patents of Invention and Discovery.23. Copyrights.24. Indians, and Lands reserved for the Indians.25. Naturalization and Aliens.26. Marriage and Divorce.27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.28. The Establishment, Maintenance, and Management of Penitentiaries.29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.*POGG - Aeronautics

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. *This list is not exhaustive*

SECTION 92 – PROVINCIAL HEAD OF POWER

s92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,1. Repealed2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes.3. The borrowing of Money on the sole Credit of the Province.4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.

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5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province. 7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospital; HEALTH8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes.10. Local Works and Undertakings other than such as are of the following Classes:

(a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:(b) Lines of Steam Ships between the Province and any British or Foreign Country:(c) Such Works as, although wholly situate within the Province, are before or after their execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

11. The Incorporation of Companies with Provincial Objects.12. The Solemnization of Marriage in the Province. 13. Property and Civil Rights in the Province14. 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.15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province (REGULATIONS) made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.16. Generally all Matters of a merely local or private Nature in the Province; HEALTH

8. DIVISION OF POWER DOCTRINES

3 Levels of Analysis for Division of Power1. Validity (P+S; Double Aspect & Ancillary) 2. Applicability (IJI)3. Operability (Paramountcy)

VALIDITY – PITH & SUBSTANCE

PITH & SUBSTANCE**LOOK AT FRAMEWORK FOR ANALYSIS

o Pith & Substance is the matter; subject matter of the legislation to see which criteria it falls under prov/fed head of power.

o Colourability: Passing laws with an ulterior motive/purpose – made to look like it falls under its jurisdiction

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R. V. MORGENTALER P+S; Colourability; [abortion]

FACTSProv (NS) is trying to enact Act which prevents abortions outside of hospitals/creation of private clinics. They were to trying to justify it under health: s.92(7) or s.92(16). However, the punitive action was under the federal head of power under criminal law. Province was trying to color the legislation as under the provincial head of power (health) – when it’s actually under the fed head of power (crim). PROV ACT ULTRA VIRES: CRIMINAL MATTER 91(27)

ISSUE & HOLDINGIs prov Act prohibiting abortions outside hospitals ultra vires? YES. Act in P+S falls under fed s.91(27).

ANALYSISPith & Substance Analysis to determine the VALIDITY of the Act: Step 1: Characterization of the matter

a) What is the purpose? - Intrinsic : text of the statute, within the “4 corners” of the page

In the Act itself, it said the goal was to maintain high-quality health care - Extrinsic : looking at the intent, Hansard evidence (external evidence), looking at the

statute as a whole, looking at the debate around the legislation.No evidence of studies about cost/quality of health care

b) What is the effect?- Intrinsic : legal effect (how does the legislation impact the rights and liabilities of those

people they’re trying to regulate)Prohibits abortion with penal consequences. Language similar to crim code

- Extrinsic : practical effect (actual or predicated impact of the legislation) - Restricts where someone can get abortion services; high fines, severe penalty

Purpose & Effect does not match up – it looks like a colourability issue. The real purpose was to prohibit abortions and it was coloured to make it look like a health-care issue, but it is a criminal matter

Step 2: What head of power does this matter fall under?This falls under the federal head of power: under s.91 (27).

Therefore this provincial Act is ultra vires, as in P+S this is a criminal matter under s.91(27).

EMPLOYMENT INSURANCE REFERENCE

P+S; Living Tree Doctrine; [maternity benefits]FACTSThis case involved concern over the validity of the maternity & parental benefit provisions of the Employment Insurance Act; Quebec Gov stated these provisions were directed at supporting families with children, and thus fell within s 92(13) – “Property & Civil Rights” & or s 92(16)

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“General matters of the province”. The position of the federal gov was that the provisions were directed at providing replacement income for working parents when their employment is interrupted as a result of the birth or adoption of a child and fell within “Unemployment Insurance” in s 91(2A). FED ACT INTRA VIRES: UNEMPLOYMENT INSURANCE 91(2A)

ISSUE & HOLDINGWhether the maternity provisions in P+S enacted federally are valid. YES!

ANALYSISo Quebec claim:

This is prov interest under property & civil rights + general prov matter, that it is a measure to assist families and to protect rights of pregnant women.

But in P+S, this is fed interest:o Maternity benefits are a mechanism for providing replacement income during

interruption of work – under unemployment insurance s.91 (2A)Living Tree Approach:

o Progressive approach to adopt to new realities of a workplace in regards to maternity provisions in Employment Insurance Act

o Social measure to preserve economic security: fits federally

VALIDITY – DOUBLE ASPECT DOCTRINE

Double Aspect Doctrine:When a subject matter has both federal & provincial features. The fed & prov features of the challenged rules are of roughly equivalent importance – thus, it can be enacted by either fed. or prov. law.

o Generally permissible, unless there is a conflict (leads to paramountcy)

MULTIPLE ACCESS V. MCCUTCHEON Double Aspect; validity; paramountcy [insider trading]

FACTS Company (in the name of gov) v. McCutcheon (repping Insider Traders) 2 acts in question:

1) PROVINCIAL - ON Securities Act – prohibits insider trading in shares trading on the Toronto Stock Exchange

2) FEDERAL - Canada Corporations Act – almost identical, applicable to companies incorporated under federal law

McCutcheon accused of insider trading under the provincial ON Securities Act McCutcheon claimed that since they were a federally incorporated company it is

unconstitutional to apply the prov act o Claimed that paramountcy rendered ON provisions inoperative

FED ACT + PROV ACT INTRA VIRES; INSIDER TRADING 92(13)

RATIO

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Laws regulating the same matter can be valid – if there are both prov and fed features to the matter and co-exist without conflict; Double Aspect Doctrine

ISSUE & HOLDINGWhether ON Securities Act & Canada Corportaitons Act were both valid and can apply to federally incorporated companies in Ontario. YES, both acts valid and both can apply!

ANALYSISInsider Trading has double aspect:Prov – Securities Law s.92(13)Fed – Companies Law POGGThe security-corporate prov/federal characteristics of insider trading legislation are roughly equal in importance and can both be valid.

VALIDITY - ANCILLARY (NECESSARILY INCIDENTAL) DOCTRINE

Ancillary (Necessarily Incidental) Doctrine:**LOOK AT FRAMEWORK FOR ANALYSIS

o Applies where a particular provision is challenged as part of a larger legislation, when considered by itself appears to intrude on powers outside of the enacting body’s jurisdiction.

o Permissible dependant on the degree of infringement and the degree of integration into the valid legislation.

Merely Incidental:o Impact of a law that is not the dominant characteristic.o Generally permissible when legislation is otherwise valid under a P+S analysiso Ex: Morgentaler – crim provisions prohibiting abortions outside hospitals had incidental

effects on prov jurisdiction over hospitals, health services, etc.

GENERAL MOTORS V. CITY NATIONAL LEASING Ancillary Doctrine; validity; [price discrimination]

FACTSCNL is suing GM. They are claiming that GM was giving better interest rates to competition (price discrimination), prohibited by provision s.33.1 in federal Combines Investigation Act.

o GM’s claim: s.33.1 is ultra vires of fed because it falls within prov “property & civil rights”

FED ACT INTRA VIRES & PROVISION ANCILLARY; PRICE DISCRIMINATION 91(2)

ISSUE & HOLDINGIs 33.1 provision in the federal Act ultra vires? No provision is valid under s. 91(2) – trade&commerce, it is sufficiently integrated into the valid federal act

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ANALYSISANCILLARY DOCTRINE ANALYSIS

1) Whether impugned provision intruded into prov. powers. What is the extent of intrusion? (Severe or marginal) Minor intrusion; this is only a remedial provision help enforcing other parts of the Act.

2) Whether the act/regime is valid (P+S analysis). If not valid, the analysis is over.The fed Combines Investigation Act is valid.

3) Is the impugned provision sufficiently integrated into the valid legislative act?Minor Intrusion Rational Functional Tests 31.1 reinforces other sanctions of the Act, is bounded by parameters of the Act, and is fundamentally integrated into purpose of Act – therefore it is “functionally related” to act as a whole and is valid = TIGHT FIT

QUEBEC V. LACOMBE

Ancillary Doctrine; IJI [water airdromes]FACTSBylaw #260 restricts Lacombe’s use of water airdromes, for which he possesses, a federal license. Municipal bylaws enacted under authority of Quebec’s Act Respecting Land Use Planning & Development, which prohibits use of aerodromes in certain zones.

o Lacombe: is claiming that bylaw is ultra vires of fed OR alternatively, it’s inapplicable due to IJI: this prov law is trenching on the core of the federal jurisdiction, aeronautics.

PROV ACT/MUNICIPAL BYLAW ULTRA VIRES; AERONAUTICS (pogg)

ISSUE & HOLDINGWhether bylaw #260 enacted by prov gov is ultra vires. YES!

ANALYSISThis bylaw was not saved by the ancillary doctrine:

a. Major intrusionb. Otherwise valid provincial Actc. Bylaw (stopping water airdromes) was not sufficiently integrated into the parameters of

the prov Act (to regulate commercial interests like zoning).

This bylaw was in P+S regulation of aeronautics, and was made invalid, and is not saved by the ancillary doctrine as it was not sufficiently integrated into the provincial Act.

IJI was not a concern in this case: “the city’s decision to regulate float planes to take off from one lake within its territory rather than another was a valid exercise of its land use planning power and not a significant intrusion on the core of the federal aeronautics power” – Prov law was not trenching on aeronautics, core of the fed jurisdiction.

APPLICABILITY - INTERJURISDICTIONAL IMMUNITY ( IJI)

Interjurisdictional Immunity

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**LOOK AT FRAMEWORK FOR ANALYSISo IJI steps away from the P+S (overlapping of jurisdiction) and instead emphasizes the

exclusivity of jurisdiction.o IJI would apply when a valid provincial law is IMPAIRS (not just affects, but not sterilizes)

the vital, protected core of the federal jurisdiction.o This doctrine “reads down” provincial law so that it does not apply to matters regulated

by the protected federal power

MCKAY V. THE QUEEN IJI; [election signs]

FACTS A city brought into effect a bylaw which said signs couldn’t be displayed on front lawns Appellant displayed a sign supporting a federal election candidate and was convicted of

violating municipal prohibition (extension of prov legislation)PROV/MUNICIPAL ACT ULTRA VIRES; FEDERAL ELECTIONS s.92(10)

ANALYSISProvince does not have power to prohibit fed election signs under its property & civil rights jurisdiction s. 92(13). This bylaw is trenching on the core of the federal jurisdiction which is to facilitate federal election processes – IJI prevails.

The bylaw is “read down” to prohibit all signs but not apply to federal election signs (exception).IJI of the federal power – federal elector power

BELL#1 - COMMISSION DU SALAIRE MIMIMUM V. BELL IJI; “affects”; [broaden IJI test]

FACTSWhen the Quebec Commission tried to impose a levy on Bell under the provincial Minimum Wage Act, they refused to pay it, stating they were federally regulated. This Act regulated minimum wages, working conditions & hours etc. in Quebec. PROV ACT ULTRA VIRES; MANAGEMENT OF FEDERAL UNDERTAKING - CORE s.91(29)

RATIOIJI Test was “sterilization” or “impairment” pre Bell #1. This case broadened IJI test to “affects”.

o Larger immunity for federal undertakings.

ANALYSISCourt held that a Quebec min. wage law could not apply to Bell or other federally regulated undertakings operating in province, even though no federal minimum wage law existed at the time. Quebec Act was affecting the fed core power of managing federal undertakings.

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BELL#2 - BELL CANADA V. QUEBEC IJI; “the core of power”; [federal undertaking]

FACTSProvincial Quebec Act gives right to protective reassignment to a pregnant worker. An employee of Bell, a federal telecommunications undertaking, wanted to use provincial health and safety legislation to receive a protective reassignment. Bell challenged. PROV ACT ULTRA VIRES; MANAGEMENT OF FEDERAL UNDERTAKING - CORE s.91(29)

RULEScope of IJI doctrine are limited to the “basic, minimum and unassailable content”; the core of federal power in question

ANALYSISQuebec Act does not apply to federal undertakings such as Bell Canada (federal corporations). Management of federal undertakings such as Bell Canada, are matters falling within classes of subject mentioned in s 91(29). The effect of this prov law is that onto federal undertakings would constitute an encroachment of exclusive jurisdiction of Parliament. To allow prov law to apply concurrently would strip exclusivity of federal power of any distinct or meaningful content.

o Prov law was read down so as not to apply to federally regulated undertakings such as Bell Canada. Since the working conditions/management of an undertaking are vital/essential parts of undertaking, prov act could not apply to them.

CANADIAN WESTERN BANK V. THE QUEEN IN RIGHT OF ALBERTA IJI; Paramountcy; affects vs impairs [insurance & banks]

FACTSBanks authorized to promote some types of insurance under federal Bank Act. Alberta makes prov Insurance Act to make banks subject to provincial licensing regarding promotion of insurance products.

o Banks are trying to claim IJI: that Insurance Act is trenching on the core of the federal jurisdiction.

PROV ACT INTRA VIRES; INSURANCE - NOT CORE OF BANKING s.91 (15)

HOLDINGProv Insurance Act can apply to Can. Western Bank – IJI & paramountcy not applied!

ANALYSIS3.. Is provincial intrusion sufficiently serious to invoke IJI?“Affects” does not imply any adverse consequences whereas “impairs” means that the core competence is put in jeopardy.

Prov Insurance Act governing the promotion of insurance products does not impair upon the protected core of the federal banking power, thus, IJI does not apply. Promotion of insurance is not vital & essential to the undertaking of banking.

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Note:Courts don’t like using IJI in general, because there is no protection on the fed matter in the head of power that the prov legislation is trying to legislate on – and by striking it down, there will be a legal vacuum that leaves the matter uncovered. That’s why they prefer to read it down as well.

QUEBEC (AG) V. COPA: CANADIAN OWNERS & PILOTS ASSOCIATION

IJI; aeronautics; [airstrips]FACTSValid federal law to create airstrips. Valid provincial law prohibits construction of airports on agricultural zoned land to preserve agricultural land. PROV LAW ULTRA VIRES; AERONAUTICS – CORE (pogg)

HOLDINGProv law impairs the protected core of the fed jurisdiction over aeronautics and is inapplicable to extent that it prohibits aerodromes in agricultural zones.

ANALYSISIn P+S, the provincial law is about land use planning/agriculture which falls under prov jurisdiction: 92(13) and (16) and thus, is valid provincial law.

IJI ANALYSIS:1. Should the doctrine apply? Is there precedent for applying it to the power in issue?

Yes, aeronautics power has traditionally been a federal head of power.

2. Determine whether the (prov) law trenches on the protected core of the federal competence.Prov Act purports to limit where aerodromes can be located, it follows that it trenches on core of federal aeronautics power. It does not sterilize Parliament’s power, but it does restrict it.

3. If it does trench on the core, determine whether the provincial law’s effect on the protected fed power is sufficiently serious to invoke IJIIf the prov power is enacted, it would force fed to choose between abiding by prov law or to place aerodromes on certain land. This restricts the vital, core power of aeronautics – and thus, prov legislation is read down to be inapplicable.

CANADA AG V. PHS COMMUNITY SERVICES SOCIETY (INSITE) IJI; [safe injection – health services]

FACTSFederal legislation Controlled Drug & Substance Act (CDSA) applied to make safe injection facility in BC illegal. CDSA – no one can carry drugs.

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o Insite’s IJI claim: CDSA is trenching on the protected core of the prov jurisdiction – health care services.

FEDERAL ACT INTRA VIRES; IJI DOES NOT APPLY HERE

ISSUEWhether Insite constitutes a protected core of the provincial power over health care in s. 92(7) , (13) and (16) and is therefore immune from federal interference. Does IJI apply? NO.However, Insite is still exempt from CDSA’s federal crim laws based on Charter protections: it was deemed as s. 7 violations by prohibiting INSITE

ANALYSISIJI DOES NOT APPLY:

(1) proposed core of the prov power over health has never been recognize beforea. first case of this subject matter

(2) there’s no defined core that is looking to be protected in immunity(3) applying this doctrine may have the effect of creating a legally protected enclave that

the federal gov’t power can never again tread.

TSILQHOT’IN NATION V. BRITISH COLUMBIA

IJI; [Aboriginal title claim]FACTSRegulation of forestry is pith & substance under provincial power under s.92(13)Aboriginal title land is under s.91(24) of federal powers over “Indians”

ISSUEIs the BC provincial Forest Act ousted on IJI?

o Does this provincial legislation impair the protected core of federal power?

RATIOIJI is of “limited application” and should be applied “with restraint” – (Can Western Bank)

HOLDINGo This is not an issue concerning conflict of prov legislation trenching on a federal core(not

an IJI problem) – but rather how far the prov. gov can go into regulating land that is subject to Aboriginal title (so between province & Aboriginals).

o Also no paramountcy – because there is no conflict between the law of federal and provincial

Here, IJI would create serious practical difficulties:1) Prov law would be unconstitutional if it impaired an Aboriginal right 2) applying IJI here to exclude provincial regulation of forests on Aboriginal title lands

would produce undesirable results and may lead to legislative vacuums – some forests would be regulated under prov, some under federal, or no legislation

Possible outcome:

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https://zoupio.lexum.com/calegis/30---31-vict-c-3-en#!fragment/sec92subsec16




Court finds Aboriginal title exits in the land, and as a result, provincial laws can apply to the use of resources on that land. Thus, prov. regulation of general application will apply to exercises of Aboriginal rights and thus, IJI for provincial regulation should not be applied in cases where lands are held under Aboriginal title (federally regulated Indians)

BMO + MARCOTTE

FACTSApplication of provincial consumer laws vs. Banks in regulating their visa cards

o Banks said: Doesn’t apply to us because banks are federal jurisdiction – and visa cards are core of banking

Court found that regulating visas were in the core of banking.

OPERABILITY - PARAMOUNTCY

Paramountcy**LOOK AT FRAMEWORK FOR ANALYSIS

o In case of conflict b/w valid prov & fed laws, the federal law is paramount and the provincial law is inoperative to the extent of the inconsistency

o When prov & fed gov is legislating on the same purpose:a) If there’s an impossibility of dual compliance or;b) If it’s dually compliant but the prov legislation is frustrating the purpose of the

federal act – Paramountcy ruleso If prov law can exist without frustrating the federal legislation, than no paramountcyo NARROW reading of conflict:

SCC tends to define the conflict narrowly usually, by allowing fed & prov laws to operate unless it is impossible for those subject to comply w/ both legislatures

“express conflict” / “impossibility of dual compliance”

ROSS V. REGISTRAR OF MODELS Paramountcy; [driving licence]

FACTSRoss was charged under several sections of the federal Crim. Code – under s.238 his license was not to be suspended during when he has to get to & from work. However, under s.21 of the provincial ON Highway Traffic Act, his license was to be suspended. Ross brought an action claiming that s.21 of the was inoperative because of its conflict with s.238 of the Criminal Code.PROV ACT INTRA VIRES

ISSUE & HOLDING1. Was the prov legislation – s.21 of the Highway Traffic Act valid? YES2. Was the federal legislation s.238 of the Criminal Code valid? YES

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3. If both pieces of legislation were valid, was there a conflict b/w the two provisions requiring the rule of federal paramountcy? NO

ANALYSISBoth prov, and fed laws in this case are valid laws in this case.

PARAMOUNTCY ANALYSIS1. Dual Compliance - Can a person comply with both pieces of legislation simultaneously

without conflict? No impossibility of dual compliance here - you can abide the provincial law w/o violating federal laws – laws are not making the person do conflicting things

o Crim code provides orders of licence suspension limited to time & place – and strictly speaking, by following the provincial legislation Ross can follow the federal legislation as well.

o Compliance of one legislation = defiance of other = no dual compliance

2. Even if dually compliant, does prov legislation frustrate the purpose of the federal act?o No, prov legislation is not frustrating the purpose of federal legislation

MULTIPLE ACCESS V. MCCUTCHEON Paramountcy; Double Aspect [insider trading]

FACTS Company (in the name of gov) v. McCutcheon (repping Insider Traders) 2 acts in question:

1. PROVINCIAL - ON Securities Act – prohibits insider trading in shares trading on the Toronto Stock Exchange

2. FEDERAL - Canada Corporations Act – almost identical, applicable to companies incorporated under federal law

McCutcheon accused of insider trading under the provincial ON Securities Act McCutcheon claimed that since they were a federally incorporated company it is

unconstitutional to apply the prov act o Claimed that paramountcy rendered ON provisions inoperative

FED ACT + PROV ACT INTRA VIRES; INSIDER TRADING 92(13)

RATIOLaws regulating the same matter can be valid – if there are both prov and fed features to the matter and co-exist without conflict; Double Aspect Doctrine

ISSUE & HOLDINGWhether ON Securities Act & Canada Corportaitons Act were both valid and can apply to federally incorporated companies in Ontario. YES, both acts valid and both can apply!

ANALYSISInsider Trading has double aspect:Prov – Securities Law s.92(13)

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Fed – Companies Law POGGThe security-corporate prov/federal characteristics of insider trading legislation are roughly equal in importance and can both be valid.

PARAMOUNTCY ANALYSIS1. No impossibility of dual compliance

o There is no conflict b/w prov & fed law here, both can operate – the citizen can comply with one w/o defying the other.

o Since the federal and provincial laws provided essentially the same remedy for essentially the same conduct, namely profiting from inside knowledge in the trading of stocks, there was no express contradiction

2. Frustrating the purposeo Does not apply here

BANK OF MONTREAL V. HALL Paramountcy; frustration of fed law purpose; [bankruptcy – seizing property]

FACTSHall, a farmer got a loan from the bank and in return, put a security interest on farm machinery. Hall defaulted on his loan and from the provisions of the Fed. Bank Act, seized his machinery. However, the bank did not follow procedures under the Prov. Limitation of Civil Rights Act, which had to give the requisite notice of intention to seize.

o Federal Act – immediate seizure of property upon default of the loano Provincial Act – to give notice, of the seizure; give some sort of protection against the

immediate seizure of the farm property

ISSUE & HOLDINGDoes prov limitation of Civil Rights Act 92(13) conflict w (federal) Bank Act? Yes, prov law frustrates fed law’s purpose

ANALYSISBoth prov & fed legislatures were valid.This case showed that the impossibility of dual compliance is not the sole mark of inconsistency. Prov legislation that displaces/frustrates federal legislation’s purpose is also inconsistent to render paramountcy

Parliament’s legislative purpose was to create a certain financing purpose (seize security without delay; more wholly for this to apply uniformly across the country), but it wouldn’t be able to achieve that if prov legislation was to superadd conditions over & above the confines of the federal Bank Act (giving reasonable notice), which frustrates fed’s legislative purpose.

o Provincial law is inoperable to the mark of inconsistency and thus, banks do not have to follow provincial provision in seizing property.

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LAW SOCIETY OF BC V. MANGAT

FACTSFed gov wanted to provided a regime, for non-lawyers to represent a client. But Laws of BC restricts this as it has authorized rules on the practice of law.

ISSUE & HOLDINGWas there paramountcy? YES

ANALYSISWhat Parliament had intended to do was comprehensively regulate the access to justice for non-immigrants, by allowing non-lawyers to represent a client. Thus, the laws of BC were frustrating the purpose of the fed. Legislation by being restrictive, and thus is inoperative.

SPRAYTECH FACTSPesticides were approved under federally regulated law. Purpose was to set standards of pesticides. Bylaw (prov) restricts the use of pesticides within city limits

ISSUEDoes the municipal bylaw (prov) trigger paramountcy? No.

ANALYSISProv can still set laws on where they can/cannot use pesticides – since the purpose was the federal law was to set standards, NOT to restrict where/when these pesticides can be used.

ROTHMANS ETC V. SASKATCHEWAN Paramountcy; [tobacco advertising]

FACTS2 tobacco control legislation on retail display of products:

o Federal law allows retailers to display tobacco and tobacco-related products, signs indicating availability and price.

o Prov law bans all advertising, display and promotion of tobacco or tobacco-related products in any premises in which persons under 18 are permitted.

HOLDINGNo inconsistency b/w the two acts – no doctrine of paramountcy applied.

ANALYSISParamountcy Analysis:

1. Dual Compliance

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It is possible in this case to have dual compliance (by not letting in minors in OR by not displaying tobacco or its related products) – the prov. act simply prohibits what Parliament chose not to prohibit in its own regulation

o For impossibility of dual compliance: the prov act would have to make retailers do what the federal act prohibits them to do

2. Prov act does not frustrate the purpose of the federal tobacco Act The general purpose of fed. Act (address national public health prob) & specific purpose (general prohibition of tobacco products) remain fulfilled even w/ the prov. act (to protect youth from the negative effects of tobacco)

Note:Concerning Federal prohibition regulations, you may have to consider balancing other purposes that is not directly stated in the legislature (ex – in this case, the Fed. gov also had economic interests in mind of the tobacco industry that was not explicitly stated, but this was not available as an option in this case since it wasn’t explicitly stated)

9. POGG – PEACE, ORDER AND GOOD GOVERNMENT

POGGo Parliament has the power to make laws for the peace, order and good government of

Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces;

o Power comes from s.91 of the Constitution

3 BRANCHES OF POGG1) GAP – where discrete subject, not mentioned in s.91 & 92

o Limited applicationo Ex: Radio Reference – radio/treaty implementation power is under POGG

2) EMERGENCY – temporary concern, present, or imminent threato Courts have to be satisfied that there is a rational basis that call of Parliament

was legitimate (that it was a legit important issue)o Test for Emergency power in Anti-inflation Reference

3) NATIONAL CONCERN – concern is permanento Concern of Canada as a whole, as a matter affecting POGGo Early cases: Local Prohibition, Russello Test for National concern in Crown Zellerbach

National Concern Instances Include:1) Canada Temperance Act [Russell] [Local Prohib Ref.] [AG Ontario]2) Aeronautics [Aeronautics Ref.] [Johannesson]3) Radio communication [Radio Ref.]4) Ocean Dumping Control Act [Crown Zellerbach]

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5) Federal corporations6) National capital region [Munro]7) Atomic Energy [Ontario Hydro]8) Drug trafficking [R. v. Hauser] – more controversial but majority said “new matter not in

contemplation of framers of the constitution and therefore can be classified as a matter of national concern”.

9) Emergency – terror, insurrection, war, pestilence, plague

Did not include:1) Price, profit, and income control [Anti-Inflation Ref.] – economic crisis2) Environment [Oldman River] – falls under both fed & prov power not distinct3) Heroin dependency [Schneider] – diff from trafficking drugs, which is national concern4) Prohibitions on marijuana possession [Malmo Levine; put under crim power 91(27)]

RUSSELL V. THE QUEEN

Temperance is under POGG - should be uniform legislation in all the provinces to promote temperance by uniform law throughout the Dominion: establishes POGG in the broadest sense.

SCHNEIDER V THE QUEEN Heroin Treatment Act of BC , SCC found that treatment of heroin dependency was provincial matter – different from trafficking in narcotics (which was a national concern)

R V. MALMO-LEVINE Dealt with issue of validity of prohibition on possession of marihuana in Narcotics Control Act, Court revisited the issue and concluded it fell under criminal law power (did not have to look at residual power under POGG), but if parliament were to remove criminalization of possession of marihuana – the question might come back

TEST FOR EMERGENCY POWER

REFERENCE RE: ANTI-INFLATION ACT (1976) Emergency doctrine; POGG; [economic crisis]

FACTS Established a system of price, profit and income control applying to private sector firms with more than 500 employees. Act was binding on the federal public sector but applicable to the public sector of each province only if an agreement was made between the federal government and the government of the province.

HOLDINGThe Anti-Inflation Act is under POGG via emergency branch, and therefore is intra vires. It was temporary and necessary.

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RULE

ANALYSIS1. Characterization of Legislation

o Containment & reduction of inflation (Laskin)2. Emergency Doctrine?

o Applicable to economic crisiso Preamble – important but, not determinative: clear declaration is not required

the Courts can interpreto Extrinsic evidence of crisis allowed – “rational basis”o Judicial notice – fills in gaps of extrinsic evidence, there are some things things

so well known that the court can take judicial notice of them (ex. Economic circumstances in Canada at the time)

o MUST BE TEMPORARY

(Laskin) It was decided that legislation was valid as “crisis legislation” being for the POGG of Canada. The judges looked at extrinsic evidence (ex – Consumer Price Index) to conclude that Parliament had a rational basis for regarding the Act was a measure, which was temporarily necessary to address an economic crisis.

Parliament’s authority to act as it did was supported by its jurisdiction over monetary policy and regulation of trade & commerce. It was therefore unnecessary to consider the national interest argument. Also looked to preamble of legislation

Even if the legislation is not temporary you need to look at circumstances during which the legislation was passed, it could still be justified in the circumstances and if the circumstances cease to exist, the legislation would no longer be valid.

TEST FOR EMERGENCY POWERi. Is the power temporary?

ii. Is there a specific reference to an emergency? Go to (B)iii. Is the government acting rationally? Is there extrinsic evidence to support their

action (does the evidence conflict)?

(A) When will there be an emergency power w/out a doubt? war, insurrection prevention or apprehension of war pestilence, plague, contagious disease consequences of war inflation [Anti-inflation Act]

(B) Factors to Examine Preamble Extrinsic evidence – studies and articles about the problem Judicial notice – Even if Parliament doesn’t put forward extrinsic evidence, there are

some things are so well known that the court can take judicial notice of them (ex: economic circumstances in Canada at the time)

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TEST FOR NATIONAL CONCERN:

R. V. CROWN ZELLERBACH CANADA LTD

National concern doctrine; POGG; [ocean dumping]FACTSC was charged with dumping wood waste materials into the sea contrary to the federal Ocean Dumping Control Act. Trial judge found s.4(1) of the federal Dumping Control Act to be ultra vires and dismissed charges. Feds argue that this deals with national concerns over pollution.

ISSUE & HOLDINGWas the control of dumping in provincial marine waters an integral part of a single matter of national concern - marine pollution? YES – National Concern RULE

ANALYSISo Dumping to pollute marine waters was held to be sufficiently indistinguishable

from dumping to pollute fresh water to meet requirement of singleness or indivisibility.

The Ocean Dumping Control Act distinguished between pollution of salt water and pollution of fresh water, therefore its impact on prov jurisdiction had ascertainable and reasonable limits.

o “Provincial inability test” – lack of cooperation b/w provinces to pass legislation to tackle this problem

o Marine pollution is a concern to Canada as a whole Marine pollution was held to be a matter of national concern b/c of its

predominantly extra-provincial and international character.

FRIENDS OF THE OLDMAN RIVER SOCIETY V. CANADA (MINISTER OF TRANSPORT)National concern; environment; [environment]

National Concern Doctrine Test1. National concern is separate & distinct from emergency doctrine. National concern is

permanent vs. Emergency is temporary2. National concern applies to both new matters AND matters that may have been

provincial, but since become matters of national concern 3. National concern must have a “singleness, distinctiveness & indivisibility” (SDI) that

distinguishes it from matters of prov concern4. Determining SDI, consider: what would be the effect on extra-provincial interest of a

provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter. (provincial inability test – failure of one province to act endager the other)

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FACTSAlberta gov proposed to construct a dam on the Oldman River to create storage reservoir. Approval for project was obtained by Minister of Transport under the Navigable Waters Protection Act, however the Minister did not subject the project to an environmental assessment, which was contrary to relevant Federal Environmental Assessment Processes. Claimant wanted to support Fed jurisdiction and have approval thrown out based on breach. Prov argued that this was a project that is wholly within the prov and Federal Gov has no business at all giving authority for project

ISSUE & HOLDINGWhether the prov/fed gov has jurisdiction over the environment? Generally, local env projects will fall within prov, but this overlapped with federal jurisdiction (Oceans, fisheries).

o Env control fails the national concern test under POGG

RATIOEnvironment cannot be upheld under national concern b/c it fails “SDI”, the requisite distinctiveness, component of national concern test.

ANALYSISEnvironment has not been assigned to provinces or federal. Although local projects will generally fall within prov responsibility, fed participation will be required if the project impacts on an area of federal jurisdiction (POGG powers) like here.

o This is an example of gap case: the environmental assessment process has not been dealt with under the constitution, so it can therefore be classified as a federal head of power under residual

ECONOMIC REGULATION

TRADE & COMMERCE POWERS FALL UNDER

o Federal – s.91(2): Trade & Commerce2 branches of federal power:

a. International & inter-provincial trade & commerceb. General trade & commerce (see General Motors for TEST)

o Provincial – s.92(13): Property & Civil Rights- Intra-provincial trade; local matters of trade & commerce

Advantages to having a central federal power: Laissez-faire approach – to freely exchange goods between provinces UniformityAdvantages of a national standard:

i. Equal playing field among competitorsii. General consensus between consumers on knowledge of products -

consistency

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Advantages to have divided provincial powers:Historical outlook – how the country was built upon different provinces coming together as one Protects against a dangerous sole power of the fed gov. – protects the “central gov” from exploiting resources from provinces (Hunger games reference)

CARNATION CO. LTD. V. QUEBEC AGRICULTURAL MARKETING BOARD :- Province regulates T&C within province

- Can have merely incidental effects that falls outside provincial powers

RATIOCourt looks at the intent of the scheme. If the legislation is aimed at intra-provincial trade and had incidental effects outside the province, then it is intra vires the province.

FACTSQC Market board passed Act that bound all milk producers shipping milk & dairy a set price for export out of QC.

Carnation’s claim:We’re selling milk elsewhere and we’re a mega-int’l company so QC can’t interfere Claiming that they’re an inter-prov business & it helped they were federally incorporated

ISSUE & HOLDINGHad the marketing board infringed on the fed powers of T+C under s.91(2)? No; orders were intra vires province of Quebec.

ANALYSISThe court must look to purpose/effect of legislation to determine its P&S. Purpose: to regulate milk/improve positions of local producers (intraprovincial) Effect is the increased price of doing business for Carnation inter-provincially; yes the effect fell outside province but this was not enough to deem Board invalid (merely incidental effect) SCC said by looking at P&S the purpose was directed at regulation of intra-provincial trade – they did not purport to directly control or restrict such trade. They are valid!

MANITOBA EGG & POULTRY (1971) :- Province cannot regulate interprovincial trade

- 2+ provinces involved = federal T+C

RATIOProvinces cannot regulate interprovincial trade. If there are 2+ provinces involved in making a legislation it falls under federal trade & commerce powers.

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FACTSON produces a lot of eggs, QC produces a lot of chickens, and each sought protection of their products vis-à-vis their government. The provinces are regulating marketing schemes for eggs/chicken. In P&S they said it was related to intra-prov trade.

ISSUE & HOLDINGWhether the Plan is ultra vires the Manitoba Legislature b/c it trespasses upon exclusive legislative authority of Parliament to legislate on matter of regulation of trade/commerce conferred by s 91(2)? Yes, Plan ultra vires Prov 92(13); encroaches on Federal Power of s 91(2).

Reasoning: The Court held that even though there was no direct evidence showing that there was extra-provincial effect of the provincial law, the potential effect was sufficient to find the law ultra vires.- Court found that control of imports was essential to the provincial legislative scheme even though the law made no distinction between eggs produced inside or outside of the province. - Court distinguished the case from the Carnation decision by the fact that HERE, MB regulations had a purpose of inter-provincial trade, while in Carnation the law only had the effect of regulating inter-provincial trade and it was not its purpose- Plan not only affects inter-prov trade but aims at regulation of such trade. IT is designed to restrict/limit the free flow of trade between Provinces as such.

REFERENCE RE: AGRICULTURAL PRODUCTS MARKETING ACT

- Fed & prov gov can work together. Regulation of production is provincial.

RATIOProvince has no jurisdiction in marketing outside the province. (Feds don't if it is within the province). Prov & Fed can make an agreement to deal with matters together by dovetailing their laws.

FACTSFed Minister of Agric & provs entered into an agreement to develop a comprehensive national egg marketing scheme, regulating the marketing of eggs in intra-prov, inter-prov, and export trade. Those attacking the legislation alleged that the federal statutes encroached upon prov jurisdiction in relation to local/intra-prov trade & that the prov statutes reached into fed jurisdiction over inter-prov & export trade.

HOLDINGIntra Vires s 92(13) – provincial.

ANALYSIS (Laskin) The marketing scheme here is as a trade regulation that is in its essence and purpose related to a prov boundary.

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http://en.wikipedia.org/wiki/Ultra_vires


- The destination of the eggs was irrelevant. One did not have to inquire whether most or even all of a producer’s eggs would eventually leave the province. - The only relevant issue was that the prov had enacted production quotas rather than marketing quotas; marketing does not include production and therefore, prov control of production is prima facie valid.

THE KING V. EASTERN TERMINAL ELEVATOR - Fed can’t regulate local matters just because it has large export scope; or just cause no single

province/or acting together could put a sweeping schemeRATIO

Fed level doesn’t get the power to regulate such local matters just because “no single province, nor, indeed, all the provinces acting together, could put into effect such a sweeping scheme.

Just because something has a large export dimension, doesn’t mean you can regulate the local activities to give effect to policy relating to the export dimensions

FACTS - Exports of grain started to expand – was first delivered to farmers to LOCAL elevators

but eventually to various markets in Canada & abroad.- Canada Grain Act facilitated commercial transactions & regulation of export of grain

from Canada. Canada Grain Act facilitated commercial transactions. - Quarrel between farmers & terminal grain elevators- Terminal elevators were making unfair profits from surpluses – this was supposed to go

to the Board and used for admin costs- Board sued as Terminal elevators refused to pay

ISSUEWhether Federal Canada Grain Act is valid? No, ultra vires Parliament.

ANALYSIS- Just b/c something has a large export dimension does not mean you can regulate the

local activities to give effect to policy relating to the export dimensions. - Fed Level does not get the power to regulate such local matters just b/c no single prov

nor indeed all provs acting together could put into effect such a sweeping scheme. - (Duff J ) held that the marketing of grain, even though it was all destined for export

(some of the grain stored on the site was for local markets), fell under provincial jurisdiction with respect to property and civil rights. However, the Parliament of Canada could still assume jurisdiction if it invoked its power with respect to works and undertakings s.92 (10c).

P&S characterizationWholly intra-prov production & sale via elevator regulated as necessarily incidental to wheat Board regime re extra-prov/international trade. (elevators declared national under s 92(10)(c)

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http://en.wikipedia.org/wiki/Work_and_undertaking

http://en.wikipedia.org/wiki/Work_and_undertaking

http://en.wikipedia.org/wiki/Property_and_civil_rights

http://en.wikipedia.org/wiki/Grain

http://en.wikipedia.org/wiki/Lyman_Poore_Duff


LABATT BREWERIES V. AG CANADA General federal trade & commerce powers cannot regulate a single trade or industry;

[lite beer]FACTSThere is Federal Food and Drugs Act regulating allowable alcohol for “light beer”. Labatt Breweries marketed “Special Lite Beer”, which exceeded the max allowable alch content.

Labatt challenging validity of federal Act & its regulations Fed gov try to justify the law under trade & commerce power (interprovincial power or

general t&c power); and POGG & crim. law

RULEGeneral federal trade & commerce powers cannot regulate a single trade or industry

HOLDINGFound that the FDA and regulations, in so far as they applied to malt liquors & light beers, were ultra vires.

ANALYSIS This “lite beer business” could not be justified under the fed branches of T& C power:

1) Interprovincial & int’l tradeo Fed position : lack of common national standard across the country with

products sold across the country, impacts interprovincial trade & commerceo Advantages of a national standard:

a. Equal playing field among competitorsb. General consensus between consumers on knowledge of products –

consistency2) General T&C

o Regulation of a single trade or industry like in this case, is not of general national concern

Also not Criminal or POGG powerso Impugned provision was not directed at the protection of health or the

prevention of deceptiono Not POGG there was no national concern; beer in this case was not deemed

of national concern

GENERAL MOTORS OF CANADA LTD. V. CITY NATIONAL LEASING

Ancillary Doctrine; validity; [price discrimination]FACTSCNL is suing GM. They are claiming that GM was giving better interest rates to competition (price discrimination), prohibited by provision s.33.1 in federal Combines Investigation Act.

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o GM’s claim: s.33.1 is ultra vires of fed because it falls within prov “property & civil rights”

FED ACT INTRA VIRES & PROVISION ANCILLARY; PRICE DISCRIMINATION 91(2)

ISSUE & HOLDINGIs 33.1 provision in the federal Act ultra vires? Combines Investigation Act is valid under the federal trade and commercial power, the 2nd branch power – power over the “general trade and commerce”. Also, s.31.1 is provision is sufficiently integrated into the valid federal act – ancillary

ANALYSISANCILLARY DOCTRINE ANALYSIS

1) Whether impugned provision intruded into prov. powers. What is the extent of intrusion? (Severe or marginal)

Minor intrusion; this is only a remedial provision help enforcing other parts of the Act.2) Whether the act/regime is valid (P+S analysis). If not valid, the analysis is over.

The fed Combines Investigation Act is valid. 3) Is the impugned provision sufficiently integrated into the valid legislative act?

Minor Intrusion Rational Functional Tests 31.1 reinforces other sanctions of the Act, is bounded by parameters of the Act, and is fundamentally integrated into purpose of Act – therefore it is “functionally related” to act as a whole and is valid = TIGHT FIT

RULEs.91(2) has two branches of federal power:

1. The power over international & interprovincial trade & commerce2. The power over general trade & commerce affecting as a whole

GENERAL TRADE & COMMERCE TEST (GENERAL MOTORS):This test indicates valid legislation under the general trade & commerce power, s.91(2)*Don’t need all 5 elements

1. Is the law in question part of a regulatory scheme? 2. Is the scheme regulated/monitored by a regulatory agency?3. Is the law concerned with a general trade as a whole rather than a single

industry? 4. Are the provinces of incapable of legislation, either alone or together?5. If you failed to include a province, would the scheme be jeopardized?

REFERENCE RE SECURITIES ACT Feds cannot duplicate provincial legislation and advocate for a cooperative scheme to justify

intrusion of prov jurisdiction

RATIOFeds cannot duplicate provincial legislation and advocate for a cooperative scheme to justify intrusion of prov jurisdiction.

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FACTSAct’s main purpose = create single Canadian Securities Regulator with opt in regime. Act does not seek to unilaterally impose a unified system of securities regulation for whole of Canada.

ISSUE Whether Federal Securities Act is valid exercise of Parliament? No, invalid, as it was a mere duplication of prov legislation, only difference is that it was advocating for a cooperative scheme.

REASONING o Canada says: Act as a whole is a constitutional exercise of Parliament’s general power to

regulate T&C under s 91(2), and specific provisions that intrude on prov jurisdiction are ancillary to fed powers.

o Court looks at effects of regulation: they are duplicative legislative schemes with the provs & displaces them with a new federal regulatory scheme. - Applied 5 Steps of the Test under General Branch of T&C – s 91(2)- Found that to fall under s. 91(2) , legislation must be “qualitatively different from anything that could practically or constitutionally be enacted by the individual provinces either separately or in combination

o What the fed Securities Act was trying to achieve was something that the prov was already doing, and thus would be taking power away from the provs.

o Division of power must be respected although federalism is important.o Court recommend a collaborative approach – combined with prov schemes.

HOLDINGThe Securities Act as presently drafted is not valid under the general branch of fed T+C power.

o The provinces could regulate Securities without being infringing fed powero Uniformity can not even make an argument in this case as the legislation itself eludes to

an “opt-in” acknowledging that not all provinces could adopt this Act

11. FEDERAL CRIMINAL LAW POWER

FEDERAL HEAD OF POWERs.91(27): The Criminal Law, procedure of criminal law

P&S TEST FOR “CRIMINAL LAW” UNDER S.91(27) (MARGERINGE REFERENCE):1. Prohibition + Penalty

If you have the two, you have “prima facie” indication of “criminal law” But, can have exceptions Can’t be in P+S regulatory

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2. Criminal Law purposei. What is the undesirable effect upon the public against which the law is directed?

ii. May be satisfied with a “typically criminal purpose”iii. Prohibition & penalty preserving:

“Public peace, order security, health, morality” (Margarine reference) “The protection of a clean env” (Hydro-Quebec) “the protection of vulnerable groups “(Malmo-Levine)

The Limits of moralityMorality has traditionally been identified as a legitimate concern of the criminal law – but now just because an activity doesn’t fall under conventional societal values doesn’t mean it will be forbidden by crim law (Malmo-Levine)

Other Salient Doctrines Ancillary – a crim law may contain regulatory features, that are ancillary to crim

powers Colourability – the true purpose of the statute –

prov law can’t be colored to be crim (Morgentaler) fed law can’t be colored to make something of prov jurisdiction crim law

PROVINCIAL HEAD OF POWERs.92(14): The administration of justice in the province...including...Provincial courts, both of Civil and of Criminal jurisdiction, and including procedure in civil matters in those courts.s.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 this section

MARGARINE REFERENCE - Establishes test for fed law to be crim law: crim law purpose + (prohibiton+pentalty)

- Crim law must have valid crim purpose; economic regulation is not

FACTSSection 5(a) of the federal Dairy Industry Act made it an offence to manufacture, import, sell, or possess any margarine, to make it with anything other than that of milk or cream. A reference was brought to the SCC to determine whether that section was ultra vires Parliament.

RATIOTEST FOR CRIM LAWCriminal Law purpose + (prohibition & penalty)

Act cannot be colourable:

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Ask if the legislation is a “colourable” attempt to regulate property & civil rights by creating a prohibition & penalty for something that is outside of its jurisdiction. The Act needs to have a criminal public purpose behind it to be under crim power

ISSUEWas an offence to manufacture, import, sell, or possess any margarine, or any butter substitute manufactured wholly or in part from any fat other than that of milk ultra vires Parliament? YES, Act ultra vires Parliament and struck down the criminal law portion of it.

ANALYSISIt was argued that the provision was within federal jurisdiction as being in relation to criminal law. Proprietary Articles Trade Association v. Attorney General for Canada was cited for its broad definition of criminal law as involving acts prohibited by the state. However, it was necessary to examine that definition in the context of the legislation under consideration. The Act was ultra vires and did not become intra vires through the creation of offences and penalties. The argument would have had more weight if the purpose of the legislation was to prohibit substances injurious to health

P&S – Characterization: the purpose of the act in this case was not related to any purpose such as public, peace, order, security, health or morality which would tend to support it as being in relation to crim law. The fed bears the onus of proving that the purpose was of health, and they failed.

o Was in P+S of regulation of economic activity s.92(13). The purpose was to give trade protection to dairy industry through regulation of manufacturing and selling of margarine (outlawing certain practices that create competition) even if there is a prohibition and a penalty.

RJR MACDONALD INC. V. CANADA:Crim law may have exceptions, but does not negate crim law status

RATIOA statute with a primary purpose of protecting the health of Canadians with penal sanctions that follow non-compliance is in pith and substance criminal in nature, and is intra vires the Federal Government. A criminal law with exceptions does not negate the law’s criminal law status.

FACTSFederal Tobacco Products Control Act banned all advertising and promotion of tobacco products offered for sale in Canada, with an exemption for advertising of foreign tobacco products in imported publications. The law also required display of health warnings on all tobacco products. Violation was punishable by summary conviction.

o Challenged by tobacco companies: that it was an intrusion on ss. 92(13) or (16) of the Constitution Act, also infringe on freedom of expression under s.2(b) of the Charter.

ISSUE & HOLDINGWhether Tobacco Products Control Act was ultra vires Parliament? No, Act was valid under federal jurisdiction of crim power.

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ANALYSISIn P&S, this act is criminal law; it seems clear that Parliament’s purpose in enacting this legislation was to prohibit 3 categories of acts: advertisement of tobacco products, promotion of tobacco products, and sale of tobacco products without printed health warnings. These prohibitions are accompanied by penal sanctions. The Act’s purpose as outlined in s.3 is a concern for public health and more specifically, a concern with protecting Canadians from the hazards of tobacco consumption – a valid concern. Tobacco kills

HYDRO-QUEBEC

Even though env is beyond the public peace, order, security, health & morality – it may still fall under federal power

RATIOExpansion of the criteria in finding a “criminal purpose” - environment is beyond the interest of “public peace, order security, health, morality” but still fall under fed power. If legislation has an exemption provision, this does not negate the law as being of criminal law status.

Facts: HQ charged with violation of an interim order made by federal Minister of Environment restricting its emissions of PCBs. Order was made under Part II of Canadian Environmental Protection Act. HQ claimed that the 2 sections of Act, ss. 34, 35, were ultra vires. Fed Gov attempted to support legislation under both POGG/Crim law powers. SCC found impugned legislation was a valid exercise of crim law power and that it was therefore unnecessary to address POGG.

ISSUE & HOLDINGWhether ss. 45, 46 of Environmental Protection Act were ultra vires Fed Gov? No, legislation/provisions are valid exercise of Fed Gov under crim law power.

ANALYSISThe protection of a clean environment is a public purpose sufficient to support a criminal prohibition (all judges agreed on this issue). In this case, criminal law fulfilled the purpose of seeking discrete prohibitions to prevent evils falling within a broad purpose, such as for the protection of health. - Respondent argued that the power to regulate a substance is so broad as to encroach upon prov legislative jurisdiction. This is b/c of the broad definition of “toxic substances.” Court found that this argument relied too narrowly on a specific provision & on certain aspects of it, and then applies that provision in a manner that is not warranted. - the prohibition of the act is enforced by a penal sanction and is undergirded by a valid criminal objective, and so is valid criminal legislation. The prohibitions are directed at public evil!

REFERENCE RE: FIREARMS ACT

Safety is valid crim purpose; Crim law can prohibit & regulateRATIO

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The fed gov can draft legislation that mimics prov licensing/property matters if the underlying purpose is criminal in nature, or for some criminal objective.

FACTSFed gov passed new gun control legislation – Firearms Act. Failure to comply with licensing and registration requirements was made an offence under CC. Prov of Alb challenged the fed gov’s power to enact new gun control law by a reference. Essence of challenge was that the scheme was regulatory rather than crim legislation b/c of complexity of legislation/discretion given to chief firearms officer. Prov argued that gun control scheme was indistinguishable from existing prov property regulation schemes such as automobile & land title registries.

ISSUE & HOLDINGWhether the Firearms Act is valid under Parliament’s crim law power? Yes!

ANALYSISIn P&S, of this act is directed to enhancing the public safety by controlling access to firearms through prohibitions and penalties. This brings it under fed crim law power. While the gun control law has regulatory aspects, they are secondary to its primary crim law purpose.

o Parliament did not enact Firearms Act to regulate guns as items of property. Act does not address insurance or permissible locations of use. Rather, Act addresses those aspects of gun control which relate to dangerous nature of firearms and the need to reduce misuse.

o Court found that gun control law did not upset balance of power b/c its effects on property rights were incidental: Act did not hinder ability of provs to regulate property/civil rights aspects of guns, nor did the law precipitate the fed gov’s entry into a new field given that gun control had been subject of fed legislation since Confederation.

RE ASSISTED HUMAN REPRODUCTION ACT - QUEBEC COURT OF APPEAL

- Act must have valid crim purpose; diff approach in looking at P+S

FACTS

Assisted Human Reproduction Act: Federal legislation contains regulatory scheme aimed at prohibiting & regulating behavior relating to assisted human reproduction, but also to certain types of human genetic research standard of research

Feds - Crim Law s.91(27) VS. Prov - hospitals & health care under 92(16) Parts of the Act were agreed to be valid criminal law with a consensus by all SCC judges

ISSUE & HOLDING

Whether the AHRA valid under powers of Fed Gov? Yes, under Criminal law s 91(27)Whether the regulatory/administrative provisions are valid? No, many were restricted, and

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many were invalidated – medical services of each province regulates the details in respect to this topic

ANALYSIS

McLachlin Opinion:

“the act is a series of prohibitions followed by a set of subsidiary provisions for their administration”

“the pith and substance is to prohibit practices that would undercut moral values, produce public health evils, and threaten the security of donors = criminal law”

The approach McLachlin takes is to look at the Act as a WHOLE – the scheme of the Act

•Valid as a whole: so this is a P+S argument – which is completely a criminal power

1. What is the matter?2. What is the purpose & effect?

(According to McLachlin)- Purpose: to prevent practices that would undermine human harm and dignity, and undercut moral values; prohibiting undesirable practices (para24)- Effect: the dominant effect of the law is NOT to set a regime that regulates and promotes the benefits of artificial reproduction; but prohibiting practices that would “undercut moral values, produce public health evils, threaten the secutiy of donors, donees, and persons conceived by assisted reproduction” (para31)

P+S for fed: health, morality

McLachlin said that some of the provisions that are even regulatory in manner are still fine to exist, because the dominant purpose & effect of this Act is prohibitory, which is crim law. Criminal law can have exceptions as long as the whole act in itself is dominantly crim.

LeBel/Deschamps Opinion:

“pith and substance connected with provinces exclusive jurisdiction over hospitals, property & civil rights”

The impugned provisions represent an overflow of the exercise of the federal criminal law power. Their pith and substance is connected with the provinces’ exclusive jurisdiction over hospitals, property and civil rights, and matters of a merely local nature.

The impugned provisions affect rules with respect to the management of hospitals, since Parliament has provided that the Act applies to all premises in which controlled activities are undertaken

The approach LeBel/Deschamps looks at it here is the individual provisions

Cromwell Opinion:

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http://en.wikipedia.org/wiki/Property_and_civil_rights

http://en.wikipedia.org/wiki/Pith_and_substance

http://en.wikipedia.org/wiki/Criminal_law_power

http://en.wikipedia.org/wiki/Criminal_law_power


“s. 8,9,12 prohibit negative practices associated with AR, and are criminal legislation” “s.60, 61 create offencescriminal” Disagrees with McLachlin and Lebel/Deschamps:

o The approach Cromwell takes is that of LeBel/Deschamps is to look at the provisions to see if P+S they are valid, but Cromwell views the provision as a WHOLE

o Matter of the challenged provisions as a whole of provincial jurisdiction

BUT CROMWELL STRIKES DOWN CERTAIN PROVISIONS, AND ALLOWS SOME – making it look like he took more so a provisionary approach like LeBel

R. V MALMO-LEVINE

The "harm principle" is not a fundamental aspect of our justice system and is not needed to be included in crimes for them to be constitutionally valid.

FACTSMalmo-Levine was charged with PPT of weed. He ran a non-profit helping people reduce the harms associated with marijuana and teaching them "safe practices". He tries to challenge the prohibition's constitutional validity, focusing on using the "harm principle" as his main argument for why the prohibition is not constitutionally valid.

Dealt with issue of validity of prohibition on possession of marihuana in Narcotics Control Act, Court revisited the issue and concluded it fell under criminal law power (did not have to look at residual power under POGG), but if parliament were to remove criminalization of possession of marihuana – the question might come back

RATIOThe "harm principle" is not a fundamental aspect of our justice system and is not needed to be included in crimes for them to be constitutionally valid.

NOTE:In Context of Malmo-Levine:

- Alcohol is more harmful than MJ, but why is this legal while MJ is not? Alcohol is regulated, while MJ is criminalized

o Culture around MJ & alcohol are differento Economic aspects of alcohol

- The purpose even back then about MJ was about health & morality despite the issues about racism, and minority groups– and so it’s still okay to criminalize MJ (?)

- If the law can hold to justify an original criminal purpose – it may be justified under a crim law power

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12. CRIM POWER VS. PROV POWER TO REGULATE MORALITY & PUBLIC ORDER

PROV POWERS ON REGULATING LOCAL INTERSTS IN MATTERS OF PUBLIC ORDER & MORALITY:

1. s.92(14) of the Constitution – administration of justice in the province (ex – prov policing)2. Some cases, fed has drafted crim laws in ways that allow them to be shaped by provinces in respond to local conditions3. Public order and morality (and safety) gives the proviince concurrent jurisdiction with respects to the sucject of crim law

- s.92(15): allows prov to enact penal sanctions

The province can be critiqued for infringing on:Fed over criminal power itself and/or criminal investigative procedure

RE NOVA SCOTIA BOARD OF CENSORS V MCNEIL

The province can govern local quasi criminal law mattersFACTS (NS was appealing McNeil's protest about prov being ultra vires)

The Act and regulations were a system for licensing and regulating the showing of films where all films must be submitted to the provincial censor board prior to exhibition (the board had unfettered power to permit/change)

Breach of regulations = fine and revocation of theatre owner's licence

ISSUE & HOLDINGCan the Prov Gov censor movies and determine what films are appropriate for public viewing? Yes, as this pertains to property and civil rights, and local matters. Intra vires of the prov.

Morality and criminality are not the same at all - in this case the morality is a local standard by which to hold the exhibitions of films is not in criminal jurisdiction. Pith and substance 92(13)

Court looked at it as regulatory matter of a local & private nature & not criminal matter

Look at the federal gov’s purpose: If the federal purpose was to just to restrict:Then putting in heavier restrictions (by the prov) doesn’t frustrate the purpose. If the federal purpose was to restrict and define what was “indecent”, defining

permissibility:Then putting in heavier restrictions may infringe upon the definition of indecency and what is permitted.

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WESTENDORP V THE QUEEN

Regulations can’t have a crim purpose;FACTSW charged with being on street for purpose prostitution under bylaw.Calgary Bylaw dealt generally with regulation of city streets for business/trade/occupations (penalties were fine from $20-$300 and imprisonment) and it was amended specifically for prostitution

ISSUE & HOLDINGDoes the bylaw intrude on the fed crim power? YES, ultra vires of the city.

ANALYSIS- Case similar to Morgentaler; City try to colour purpose as property & civil rights when

it’s actually dealing with crim law power- Property has nothing to do with prostitution, province was over-reaching with its

powers. This was a severable provision of the bylaw prohibiting prostitution that was not integrated with the bylaw itself

RIO HOTEL V NB LIQUOR LICENSING BOARD

Double Aspect?Fact:NB Liq Control Act gave power to attach conditions to liquor licenses regulating nude entertainment. Hotel owner argued that was under federal jurisdiction and they could not legislate on nudity

HOLDINGThe legislation is prima facie related to property/civil rights within Province and to matters of a purely local nature.

o There is overlap between the licence condition on nude entertainment and some provisions of the criminal code but no direct conflict. Possible to comply with both prov & fed law.

If breached - there is only suspension or cancellation of license, not penal sanctions.

(Distinguished from Westendorp where the province was trying to colour property as what was really prostitution, here no colourability)(Distinguished from Morgentaler because in M it was P+S criminal law, here, it’s regulatory)

ARKINSTALL V. SURREY (CITY) BCSCUltra vires of the province trying to act of crim power

FACT

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Province had started a criminal investigation to look for grow-ops. It tracked electricity consumption – and if it was over the threshold showed that inspectors and police would come in and inspect his home. Arkinstall had high electrical activity – and he said the investigators could come in and not the police.

One of the arguments for this tactic was that it doesn’t even work.The province said that the police was necessary for safety reasons of the investigator.

ISSUEProvincial claim: They were acting with a safety purpose for citizensArkinstall claim: Province is really trying to look for criminals & grow-opsIn support of Arkinstall – when licensed grow-ops were found, nothing was done while criminal (unlicensed) grow-ops were penalized, which shows, that it wasn’t about safety & inspection at all.

13. INSTRUMENTS OF FLEXIBILITY IN THE FEDERAL SYSTEM

A. FEDERAL SPENDING POWER

Federal Spending Power: The ability of the federal gov to spend $ beyond the limitations of its regulatory heads of power. Includes cost-sharing/block grants, equalization grants

o Used to create national policies, standards via conditions on fundingo Constitutional Limits:1) Tax power will not anchor all legislation spending those taxes (UI Reference) VS.2) Spending Power not constrained by just having an impact on prov heads of

power, and may even be directed at prov subject matter (CAP Reference)

3 FEDERAL POLICY INSTRUMENTS IN CREATING PAN-CANADIAN SOCIAL PROGRAMS :

1. Direct Federal Programs - the provision of benefits directly to citizenso 3 formal amendments to constitutional division of powers gave fed gov

complete authority over Unemployment Insurance, and substantial authority in area of pensions.

o In addition, under doctrine of spending power, fed gov claimed a right to make payments to individuals, institutions or other govs for any purpose & argued that they do not represent an invasion of prov jurisdiction as long as they do not constitute regulation of the sector.

o The federal role in taxation constitutes a powerful instrument in redistributive policies, especially with the development of a fuller array of refundable tax credits and benefits

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Fed gov developed a significant direct present in social policy. (i.e. – unemployment insurance, Family allowances, CPP, etc)

2. Shared-Cost Programs - federal shared-cost programs in areas of prov jurisdictiono Under these programs, fed provide financial support to any prov mounting a

program that met conditions or standards specified in federal legislation. In this way, the federal gov stimulated the expansion of key social services, and established a common framework for program design from coast to coast

o Most shared-cost program grants come with conditionso EXAMPLE – Canada Health Act

o Various conditions on delivery of medical care to get fed paymentso Conditional grants to provs allow fed gov to indirectly regulate social

policy through the use of financial incentives, an end they are constitutionally precluded from achieving directly through legislative or “coercive” means

o Provs have more significant powers over health (92(13), 92(16), 92(7))o Fed has some powers over health: crim power 91(27)

3. Equalization Grants - equalization grants to poorer provinceso Equalization grants have always been unconditional; could be used to reduce

prov taxes rather than enhance prov programso Funds under equalization can be spent on any manner of prov program & don’t

have to comply with national standards. o Equalization payments could be substituted for prov tax revenues, and

therefore allocated to tax freezes or reductions.

B. INTERGOVERNMENTAL AGREEMENTS

Fed & prov govs enter into agreements on matters within their authority Courts are uncertain on how to enforce intergovernmental agreements Ex: Canada Assistance Plan – retains power of fed to amend/repeal Acts

REFERENCE RE: CANADA ASSISTANCE PLAN (BC)Parliamentary sovereignty

FACTSGov of Canada entered into agreemennts (Canada Assistance Plan) with each of the prov govs in 1967. Fed gov decided to reduce its budget of CAP. BC initiated a reference to see whether fed gov can do this. A majority of that court relied on doctrine of legitimate expectations to find that the fed gov was required to obtain BC consent to changes to the agreement

RATIOParliament Sovereignty:

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Every Act shall be so made as to give Fed the power of repealing or amending it and of revoking restricting or modifying any power, privilege or advantage thereby vested in or granted to any person

ISSUE & HOLDINGWhether the fed gov can unilaterally amend CAP? Yes

ANALYSIS“Every Act shall be so made as to give Fed the power of repealing or amending it and of revoking restricting or modifying any power, privilege or advantage thereby vested in or granted to any person” In my view this provision reflects the principle of Parliamentary sovereignty It is conceded that the gov could not bind Parliament from exercising its powers to legislate amendments to the Plan

C. DELEGATION

Feds can get around the bounds of distribution of powers through delegation of functions to other levels of gov

Delegation b/w gob through various devices:1) Administrative Delegation – functions are delegated to ministers admin tribunal, of

other level of gov 2) Incorporation by reference – laws of other level gov may be amended from time to

time3) Conditional legislation – where a law of one gov does not come into effect at the

other level of gov w/o a meeting a certain condition (ex – approval by the other level of gov)

COUGHLIN V. ONTARIO HIGHWAY TRANSPORT BOARD Fed can delegate to provs to regulate a matter within a fed jurisdiction

FACTSMotor Vehicle Transport Act delegates power to prov highway transport boards to regulate interprov trucking, that’s actually fed jurisdiction under s 92(10)(a).

o Coughlin challenged the constitutionality of the delegation of power to ON Highway Transport Board to issue extra-prov operating licenses

ISSUEWhether the prov board in regulating inter-prov highways was ultra vires?No, Fed Gov can delegate power to Prov Board.

RATIOParliament may delegate upon a prov constituted board power to regulate a matter within the exclusive jurisdiction of Parliament

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REFORM AND AMENDMENTS

REFERENCE RE SECESSION OF QUEBEC

Facts: *** ADD FACTS FROM SECESSION CASE ABOVE SO THEY MATCH ***

Issue: Is unilateral secession legal under the Constitution of Canada?

Held: The role the court in this reference is limited to the identification of the relevant aspects

of the constitution in their broadest sense. However no, unilateral secession would not be legal, but the rest of the country would have to give it weight and meet for negotiations.

Analysis: Right to secede “unilaterally” is the right to effectuate secession without prior

negotiations with the other provinces and fed gov. A referendum could be used to confer legitimate democratic will to secession, though it

would have no direct legal effect, the democratic expression of the will of a province would carry weight and confer legitimacy on the government of QC to initiate the constitutions amendment process in order to secede by constitutional means.

The initiative for constitutional amendment is the responsibility of democratically elected representatives of the participants in confederation.

The corollary of a legitimate attempt by one participant in confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table.

Other parties cannot exercise their rights in such a way as to amount to an absolute denial of QC’s rights, and similarly, that so long as QC exercises its rights while respecting the rights of others, it may propose secession and seek to achieve it through negotiation.

Under the constitution, secession requires that an amendment be negotiated. The court has no supervisory role over the political aspects of constitutional

negotiations.Ratio:

Any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else violate the Canadian Legal order.

However if there were to be an unambiguous expression of a clear majority of Quebecers to no longer remain in Canada, then there is constitutional duty to negotiate in accordance with constitutional principles, responsibilities, and rights.

RE SUPREME COURT ACT

Facts: Questions about who is eligible to be appointed to the 3 SCC seats reserved for QC

judges or lawyers.

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Feds appointed Justice Nadon to a vacant SCC seat, it was constitutionally challenged, as Nadon was not practicing law in QC (though he had prior), at the time he was a justice of the federal court of appeal and therefore not considered a member of the QC bar.

Parliament amended the Supreme Court Act so that the requirement of those eligible for appointment be existing member of the bar be expanded to include former members of the bar as well as current ones.

Challengers opposed the amendments so the Fed gov. referred the case to the SCC as a reference question for clarification of both the Nadon appointment and the SCC appointments in general.

Issue: 1) Can a person who was, at any time, an advocate of at least 10yrs standing at the QC

bar be appointed to the SCC as a member from QC pursuant to s. 5 and 6 of the Supreme Court Act?

2) Can parliament enact legislation that requires that a person be or has previously been a barrister or advocate of at least 10 years standing at the bar of province as a condition of appointment as a judge of the SCC or enact the annexed declaratory provisions as set out in clauses of the amended Act.

Held: 1) Majority said no 2) Majority said yes but in part. Gov. can make changes pertaining to the maintenance

of the courts, but it cannot enact legislation that would fundamentally change the SCC or its structure.

Analysis:

Issue 1)o SCC examined wording of s. 5 and s.6 of the Supreme Court Act that sets out the

qualifications for SCC judges.o While s. 5 and 6 are linked and should be read together, the wording of s. 6

limiting the appointments of QC judges, is more important to consider than the wording of s. 5, therefore appointments must be current members of QC Bar.

o S. 6 “from among” members of QC bar, implies current members. o Such interpretation advances it’s dual purpose of ensuring that the court has

civil law expertise and that QC’s legal traditions and social values are represented on the court and that QC’s confidence in the court be maintained.

Issue 2)o Any substantive change to the SCC’s eligibility requirements as stated in the

Supreme Court Act amends the Constitution and therefore triggers the Constitutions amending formula.

o Therefore the new substantive addition to the Supreme Court Act is unconstitutional as it’s made unilaterally by parliament and didn’t include consent of the provinces as is required for the constitutional change.

o Court declared that at a minimum s. 5 and s. 6 of the Supreme Court Act are a part of the Constitution.

Ratio: Majority ruled that to be eligible for appointment to the SCC, and individual must be a

current member of the QC bar.

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The only way this eligibility criterion can be changed is through constitutional amendment.

Clarifies the constitutionally protected interests of two both the SCC and the provinces/territories; independence of the SCC is protected from a fed gov. that may try to change the court to suit its political interests, and that the majority of Canada’s provinces must consent to any substantive changes.

RE SENATE REFORM

Facts: Reference question about changing senate’s role from a complementary legislative body

of second thought to a legislative body endowed with popular mandate and democratic legitimacy

Already play a complementary role: it’s role would fundamentally change with elections Constitution outlines the role of the Senate and its requirements for membership;

dividing the country into regions thus representing regionalism. Federal government argued that s. 44 of the constitution, known as the “unilateral

federal amending procedure,” allows it to make changes. Constitution Act, 1982, s. 44 states “subject to s. 41 and 42, parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.”

SCC main task is to clarify whether provincial interests were at stake and, if so, to what extent.

Issue: Senate reference addressed six questions on four key issues. Can Parliament unilaterally

reform the Senate in the following ways?o By electing senate memberso By setting fixed senatorial termso By abolishing the senateo By removing the real and net worth qualification for senators from the

Constitution Act, 1982.Held:

Parliament can’t reform the Senate by allowing provincial senatorial elections though it could change the real property requirements in all provinces (except QC).

Overall fed gov. requires the consent of at least 7 provinces representing at least half of the population of Canada to reform the Senate.

Abolishing Senate requires the consent of all the provinces. Analysis:

Decision not an amendment to the Constitution but simply an answer to the 6 questions asked by parliament.

Question 1 – Can parliament amend the part of the constitution that provides for fixed senatorial terms?

o Gov. can’t change fixed terms for senators o The senate is a core component of the Canadian fed structure of gov. changes

that affect its fundamental nature and role engage the interests of provincial stakeholders and cannot be achieved by parliament acting alone.

o Security allows senators to act independent of the HoC. o General amending procedure must apply in this case.

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Question 2 – Can parliament enact legislation that sets out a way to ask the population of each province and territory about their preference for possible senate candidates from their area?

Question 3 – Can parliament establish a framework for provincial and territorial legislatures to enact legislation to consult residents about preferences for possible senate candidates from their area?

o Q 2 &3 – there can be no consultative elections for appointments to the senate.o Court held the process would weaken the Senate’s fundamental nature and role

as a body of sober second thought and it could lose it’s objectivity.o The constitution’s early framers believed that the Senate must be independent

from the same electoral process as members of the HoC so that it can complement rather than rival the lower house.

o Changing it would require the 7/50 amending procedure. Question 4 – Can parliament repeal the Constitution’s property qualifications for

senatorso Senator’s real property and net worth can be amended .o Court held that removing the real property requirement in the Constitution Act,

1982 wouldn’t alter the Senate’s fundamental nature and role.o However removing QC’s senators requirement would violate their special “real

property” arrangement, thus requiring the approval of the Quebec National Assembly. Therefore Parliament can remove all property qualifications except for QC.

o Parliament can also unilaterally revise the net worth requirement. Question 5 – Can parliament abolish the Senate on its own, using the Constitution’s

general amending procedure? Question 6 – If the Constitution’s general amending procedure is not sufficient to

abolish the Senate, does the Constitution’s unanimous consent procedure apply?o Q 5&6 – Provincial Consent is required to abolish the Senateo Court said that abolishing the senate would fundamentally change Canada’s

constitutional structure by removing it’s two-house system.o Doing so would mean there would be one less player in the process and one less

mechanism of review.o The PM may make significant changes to the powers of the Senate and to the

number of senators, however it can’t strip the senate of it’s powers and reduce its number of members to zero.

Ratio: Parliament can’t reform the Senate by allowing provincial senatorial elections though

it could change the real property requirements in all provinces (except QC). Overall fed gov. requires the consent of at least 7 provinces representing at least half

of the population of Canada to reform the Senate. Abolishing Senate requires the consent of all the provinces Senate is an important part of Canada’s constitutional structure of which the

provinces are an important part and, as such, the interests of all stakeholders must be considered.

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Documents

1. INTRODUCTION TO CONSTITUTIONAL LAW - Web viewSobeys Store Ltd. v. Yeomans and Labour ... final word on law rests ... Tribunals are simpler that deals with just deals with that topic