LAW 100 – Constitutional

Midterm Outline

ZS

NOV. 26TH, 2012As taught by Gillian Calder

Table of ContentsElements of Canadian Constitution (textbook p. 4)........................................................3Sources of the Constitution (pg. 5)..............................................................................................3Timeline of Important Events............................................................................................................4Reference Re Secession of Quebec...............................................................................................4Interpretation and Judicial Review............................................................................................... 5

Judicial Review and (Un)written constitutional principles:...........................................................5Insite – Canada (Attorney General) v. PHS Community Service Society...........................6B.C. v. Imperial Tobacco Canada Ltd............................................................................................................6B.C. (Attorney General) v. Christie..................................................................................................................7

Persons Cases................................................................................................................................................ 7Modalities of Constitutional Argument (p.41).....................................................................8Contact to Confederation – Historical Perspective...........................................................8

Federalism............................................................................................................................................ 9Insurance & Prohibition, Temperance, and Liquor...........................................................9

Citizen’s Insurance Co. v Parsons.....................................................................................................................9Russell v The Queen.................................................................................................................................................10Hodge v The Queen...................................................................................................................................................10Local Prohibition Reference (AG Ont v AG Canada)........................................................................11

Beginnings of Economic Regulation – The Haldane Years.......................................11Viscount Haldane........................................................................................................................................................ 11Montreal v Montreal Street Railway.............................................................................................................11AG Canada v AG Alberta (The Insurance Reference).....................................................................11Reference re The Board of Commerce Act & Combines and Fair Prices Act...............12Fort Frances Pulp and Paper Company v Manitoba Free Press Company.....................12Toronto Electric Commissioners v. Snider..............................................................................................12The King v Eastern Terminal Elevator Co................................................................................................12

The Depression and the New Deal..............................................................................................13Proprietary Articles Trade Association v AG Canada......................................................................13Reference re the Regulation and Control of Aeronautics in Canada.................................13Reference re the Regulation and Control of Radio Communication in Canada........13AG Canada v AG Ontario (Labour Conventions).................................................................................13AG Canada v AG Ontario (The Employment and Social Insurance Act)..........................13AG British Columbia v AG Canada (The Natural Products Marketing Act)....................14

Pith and Substance Analysis........................................................................................................... 14R. v. Morgentaler...................................................................................................................................... 14Reference re Employment Insurance Act s.22 and 23................................................15

Validity................................................................................................................................................. 15Double Aspect............................................................................................................................................. 15

Multiple Access Ltd. v. McCutcheon.............................................................................................................15Necessarily Incidental/Ancillary Powers................................................................................16

General Motors of Canada Ltd. v. City National Leasing.............................................................16

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Quebec (A.G.) v. Lacombe...................................................................................................................................16Interjurisdictional Immunity............................................................................................................ 16

McKay v. The Queen.................................................................................................................................................17Commission du salaire minimum v. Bell Telephone Co. of Canada (Bell #1)............17Bell Canada v. Quebec (Commission de la santé et de la securite du travail) Bell #2............................................................................................................................................................................................ 18Canadian Western Bank v. The Queen in Right of Alberta........................................................18Quebec (A.G.) v. Canadian Owners and Pilots Association (COPA)....................................18Insite – Criticisms of IJI............................................................................................................................................18

Paramountcy.................................................................................................................................... 18Ross v. Registrar of Motor Vehicles..............................................................................................................19Multiple Access Ltd. v. McCutcheon.............................................................................................................19Bank of Montreal v. Hall........................................................................................................................................ 20Summary of IJI vs. paramountcy.....................................................................................................................20

Peace, Order, and Good Government...........................................................................20Nature and branches of POGG....................................................................................................... 20

3 branches:...................................................................................................................................................................... 20Munro v. National Capital Commission......................................................................................................21Reference re Anti-Inflation Act.........................................................................................................................22R v. Crown Zellerbach Canada Ltd...............................................................................................................24Test for National Concern:...................................................................................................................................25Friends of the Oldman River Society v. Canada (Minister of Transport)........................26

Trade and Commerce................................................................................................................ 27Should economic regulation be shared?..................................................................................................27Summarizing the different perspectives..................................................................................................27Black and Co. v. Law Society of AB..............................................................................................................28Canadian Egg Marketing Agency v. Richardson.................................................................................28Carnation Co. v. Quebec Agricultural Marketing Board...............................................................29A.G. Manitoba v. Manitoba Egg and Poultry Association.............................................................29Re Agricultural Products Marketing Act....................................................................................................30Natural Resources...................................................................................................................................................... 30Canadian Industrial Gas and Oil v. The Government of Saskatchewan,........................30Central Canada Potash v. Government of Saskatchewan..........................................................31

Federal Powers Over Economic Regulation – Regulation over Interprovincial and International Trade.....................................................................31

Citizen’s Insurance v. Parsons (again).......................................................................................................31The King v. Eastern Terminal Elevator Co. (again).........................................................................31The Queen v. Klassen..............................................................................................................................................31Caloil Inc. v. Attorney-General for Canada.............................................................................................32

Federal Powers Over Economic Regulation – General Regulation of Trade...................................................................................................................................................... 32

Labatt Breweries of Canada v. A.G. Canada.........................................................................................32

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General Motors of Canada v. City National Leasing........................................................................32Reference re Securities Act (Can)..................................................................................................................33

Federal Powers over Criminal Law.................................................................................. 33Definition of Criminal Law....................................................................................................................................33Reference re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference)........................................................................................................................................................................ 33RJR MacDonald Inc. v. Canada (Attorney General)..........................................................................34R. v. Hydro-Quebec................................................................................................................................................... 34Reference re Firearms Act...................................................................................................................................35

Provincial Regulation of Morality....................................................................................36Nova Scotia Board of Censors v. McNeil...................................................................................................36Dupond v. City of Montreal et al....................................................................................................................37Westendorp v. The Queen...................................................................................................................................37Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board)........................................................37

Elements of Canadian Constitution (textbook p. 4)1. Parliamentary Democracy – laws made by elected legislative bodies. These

bodies confer authority to executive bodies accountable to legislature. Laws are assessed by courts.

2. Federalism – Division of Powers3. Rights – individual and community rights to freedom, democracy, etc.4. Aboriginal Rights5. Constitutionalism – Constitution is supreme law of the land (vs. Legislative

supremacy)

Constitution is conceptualized as a framework defining “rules of the game and boundaries of the field”.

Sources of the Constitution (pg. 5) 1. The Common Law

a. Case law (interpretation) can change over time. Must look at text itself and past rulings.

b. Aboriginal Rights – crown obligated to recognize these rights.c. Parliamentary Privilege – recognized by common law but not written.d. Perogatives – Crown privileges conferred by courts (declaring war,

passports, treaties)2. Statutes

a. Ordinary Canadian Statutes (e.g. s.52) – Supreme court Act, Bill of Rights. Becomes part of Constitution because of its content.

b. Ordinary British Statutes – Actions of British Crown (e.g. Royal Proclamation of 1763 – established Quebec, gave governors power to make law, fiduciary rights to indigenous peoples). Other examples

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include Quebec Act 1774 (pre-conquest French Civil Law), Act, Statute of Westminster (abolished appeals to Privy Counsel).

c. Canadian Constitutional Statutes – Constitution Act 1867 (mostly division of powers), and 1982 Constitution (amending formula, charter, ends UK authority).

3. Conventionsa. NOT LAW, enforced by sanction/expectation (i.e. ministers come from

most supported party, govt must resign after nonconfidence vote).

Timeline of Important Events1867 – Confederation (Constitution Act)1931 – Statute of Westminster (legislative independence)1949 – Appeals to Privy Counsel abolished, SCC is top court1960 – Bill of Rights (ordinary statute, federal law only at this time)1982 – Constitutional Amendment (Patriation, Charter added, Amendment formulae)1987 – Meech Lake Accord – meant to increase QC involvement in constitution1992 – Charlottetown Accord – package of Const. Amendments shot down, mostly involving QC1996 – 1998 – Quebec Secession debate – decision rendered 1998

Reference Re Secession of QuebecReference Re Secession of Quebec, [1998] 2 S.C.R. 217 Page 11Daniel Johnson 1968 – Notion that Constitution should represent legal equality between 2 linguistic and cultural communities (2 nations) rather than 10 provinces.

Historical Overview Slowly growing movement, idea of Sovereignty (ie Daniel Jonson),

dissatisfaction with status quo 1976 Rene Levesque + Sovereigntist Parti Quebecois elected, 1980

referendum 59.5% NOo Referendum to negotiate sovereignty with economic association with

Canada Discussions through 1980s-1990s – Patriation (all provs but QC, Meech lake,

Charlottetown) 1995 Referendum – For outright sovereignty 50.6% voted NO Post-referendum – moved to law to set ground rules for separation The Reference – fall 1996 – 3 Questions put to Supreme Court

What is a reference? – Background InformationQuestions put to the court for their legal opinion. Not binding. s. 53 Supreme Court Act allows these advisory opinions. Efficient way to get answer, but politically awkward. QC didn’t participate, amicus curi (friend of the court) brought in to argue for QC. Judgement was unanimous.

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The Questions1. Under the Constitution of Canada, can the National Assembly, legislature or

government of Quebec effect secession of Quebec from Canada unilaterally? – NO

2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? – NO (international law requires evidence of oppression)

3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada? – N/A (no conflict)

Elements (Principles) of the ConstitutionAccording to the context of the Quebec decision, said that the bases of the constitution are:

Federalism – Recognition that power is shared between provinces and feds o “The principle of federalism recognizes the diversity of the component

parts of Confederation, and the autonomy of provincial governments to develop their societies within their respective spheres of jurisdiction.” (para 58).

Democracy – Not explicit in constitution, but the basis for its entire framework. QC argued that its people’s simple majority should be enough for secession. Idea that equally legitimate majorities may exist in different parts of the country, foreshadowing need for negotiation. However, courts articulate that functioning democracy needs continuous discussion and there is a duty to negotiate (this is the courts hinting that if Quebec wants to separate, the constitution prohibits it, but there is a duty for the federal government and other provinces to negotiate in response to Quebec’s dissatisfaction).

Constitutionalism – Suggested that Canada has never accepted its system of pure majority rule. Even a democratic majority for secession would have to follow the rules of the constitution (amending formula).

Protection of Minorities (and Aboriginal Rights) – Independent, fundamental principle that guides the other principles.

The DecisionCourt finds the constitution prohibits unilateral secession. However, should a clear majority vote with a clear question for secession, there is a duty for Canada to negotiate in good faith (seen perhaps as need to let them go but to work out terms). Decision seen generally as a win-win with both sides satisfied.

Interpretation and Judicial Review

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Judicial Review and (Un)written constitutional principles: Judicial review involves unelected judges overturning the will of a democratically-accountable legislature on the basis of open-ended and abstract constitutional guarantees. The interpretation and application of those guarantees necessarily requires the exercise of wide discretion on the part of the judiciary. A continuing puzzle for American theorists has been how to account for and justify this apparent derogation from democratic principles. - Patrick J. Monahan

Tension between parliamentary sovereignty and constitutional supremacy Since 1982 – Codified approach to judicial review with clear constitutional supremacy

Insite – Canada (Attorney General) v. PHS Community Service SocietySCC 2011 44Facts – Solution to help marginalized population. Proven successful results (saves lives, more rehab, less crime, etc). But violates federal drug laws (though provinces control health care). Fed. Minister refused to grant exception to allow Insite to keep operating. Issue – Division of Powers: Do Feds have jurisdiction over Insite? Charter: Does preventing continued operation of Insite violate the Charter (s.7 – life, liberty and security of person)?So Far - Trial judge says it is Fed. Jurisdiction but closing clinic would violate s.7.BCCA – health care is a provincial issue, not Fed. Jurisdiction AND violates s. 7SCC Unanimous Ruling – Canada likely appealed due to division of powers issue (which SCC did not accept – it is a Federal matter)Did not find that s.7 of Charter is violated in terms of the Criminal Code Found that Minister’s refusal to renew permit WAS violation of s. 7 because it was done arbitrarily (and it is a principle of law and justice that laws not be applied arbitrarily), ordered to grant exception.

B.C. v. Imperial Tobacco Canada Ltd.2005 SCC 49 page 31Put differently, the appellants’ arguments fail to recognize that in a constitutional democracy such as ours, protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box. (para 66).Facts – Big Tobacco challenging constitutionality of BC legislation making it easier for BC to sue tobacco companies to recoup health care costs.Issue - Appealed on ground legislation violated 2 of the constitution’s unwritten principles: Judicial Independence and Rule of Law. Can these principles be used to find an Act invalid?Holding and Rule – On Judicial Independence: Tobacco says government is interfering with right to a fair trial by placing an extra burden on their company in terms of evidence, etc and asking judges to do things they wouldn’t normally do. Court says they would only be affected if RELATIONSHIP between government and

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court was interfered with. As long as court can do its job, even draconian legislation is fair game. On Rule of Law: Argued Act doesn’t ensure tobacco will get a fair trial. Can this invalidate legislation? Court defers to legislature and suggests that argument against Rule of Law can’t be made. Legislation is allowed to stand.

B.C. (Attorney General) v. Christie2007 SCC 21 page 36Facts – BC legislation imposes tax on legal services to (supposedly) help fund legal aid. Litigant is BC lawyer who works with low income clients. Suggested legislation will prevent his clients from accessing justice which violates unwritten principle of Rule of Law – Access to Justice. Issue – Can unwritten principle of Rule of Law be used to violate legislation?Holding and Rule – No. Slippery slope argument regarding amount of funding to provide full legal counsel to everyone entitled for all legal issues. People already get legal counsel for serious (criminal) matters. On rule of law: 3 principles (From Reference re Manitoba Language Rights SCC 1985)

1. “Law is supreme over officials of government as well as private individuals, and thereby preclusive of the influence of arbitrary power.”

2. “Requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order.”

3. “The relationship between the state and the individual...be regulated by law.” Access to justice is not part of the above principles. Imperial Tobacco left open

chance of new principles but in this case – only criminal law. Also – why not framed as discrimination? Perhaps to bring access to justice issue forward?

Persons CasesReference Re: Meaning of the Word “Persons” in Section 24 of the BNA Act, 1867; SCC 1928Edwards v. A.G. Canada; 1930, Judicial Committee Privy Counsel UK page 45

Pressure in late 1800s to appoint a woman to the senate. Emily Murphy is 1st female judge in 1911. Nellie McClung helps get MB women right to vote (1916). These women and 3 others (famous 5) ask for a reference from the SCC to determine if women can be appointed to the senate.

Suggested that women are persons, but not “qualified persons” as required by BNA Act 1867. Suggested that women couldn’t hold office in 1867, must consider the time when the constitution was written and use a static, historical interpretation of the Act.

Appealed to UK Privy counsel (same question). Found that women are eligible. o “Qualified” must be read in terms of the Act itself (refers to age,

income, residential restrictions)

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o Constitution must be seen as a “living tree” that was planted in 1867 but can adapt and change as the Nation grows and times change.

o The Act does not expressly exclude women from being senators.

Modalities of Constitutional Argument (p.41) HISTORICAL ARGUMENT (purposive) – intent of draftsmen TEXTUAL ARGUMENT (originalist) – Sense of words in question STRUCTURAL ARGUMENT (analogy) – Inferences from evidence (logic based) PRUDENTIAL ARGUMENT (costs and benefits) – Practical, cost/benefit DOCTRINAL ARGUMENT (precedent) – Past cases ETHICAL ARGUMENT (ethos) – Appeal to “what we think we are”

Originalism: Statute should be given meaning intended by creators. Frozen model. The object is to figure out the historical intention. Useful if trying to choose between several possible interpretations.Dynamism: Law should be interpreted by reference to contemporary ideals. Provisions must be allowed to evolve as ideals and social conditions change. Living tree. Useful if uncertain what words mean.

Contact to Confederation – Historical PerspectiveHow did Canada receive its legal system?

Rules depend on whether land was settled/previously unoccupied (Terra Nullius) or conquered.

o Settlement – Laws of settling country applyo Conquering – Laws of previously existing nation apply except for those

pertaining to colonial governance. Date that law “was received” means on that day it is “imported” and

subsequent changes to British Law are not automatically extended to colony. In Canada: Aboriginal people “insufficiently Christian and civilized” so they do

not constitute a “legal unit in international law” thus, land was settled not conquered. Pg65

New France – Introduction of French Civil Law plus some new colonial law from French settlers.

Royal Proclamation 1763 (pg73) Imperial statute abolished Civil Law, imposing British law in civil and criminal

cases. An Imperial statute is act of British Parliament expressly extended to the

colonies. An ordinary statute applies to general British Law. Created legislative assembly which could make laws, statutes, and ordinances

for “Public Peace, Welfare, and Good Government” of colonies (King lost prerogative to legislate for the colony by means of proclamation).

Aboriginal people had right to use and occupy land. Crown alone possessed initial right to acquire these lands.

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Quebec Act 1774 (pg 74) French law for property and civil rights restored in Quebec. English Criminal

system to remain as they felt it was more certain, lenient, and generally superior.

Colonial Law Validity Act 1865 Colony can make new laws, change or strike down existing British Laws

(ordinary statutes) EXCEPT Imperial Statutes which are supreme/relate to how nation itself is governed.

Colonial legislation that is “repugnant” to an Imperial statute is not valid. Statute of Westminster 1931

British statutes no longer apply to Dominion of Canada unless we specifically request it/consent

Repeal of Colonial Law Validity Act – colonies now able to amend/repeal Imperial statutes (except the BNA Act)

British North America Act 1867 Most of population at this time lived rurally Language, legal, religious differences between Upper and Lower Canada Quebec concerned about loss of cultural history Ontario concerned with creating a strong, centralized nation that could

respond to external threats (US civil war and expansion), expand, and maintain trade with US and Britain.

Constitution Act 1982 Entrenches supremacy of Constitution. Law inconsistent with Constitution has

“no force or effect”.

FederalismInsurance & Prohibition, Temperance, and Liquor

A few notes re prohibition: Time of industrialization and dislocation. Shifting gender roles. Less about religion/prudishness, more about protecting families (violence, squandering income etc). Concerns about the ways in which families were disintegration and the role of abuse and alcohol in this disintegration. Believed that telling people they couldn’t drink was the best way to deal with plague of alcohol.

Citizen’s Insurance Co. v Parsons1881 SCC and PC pg97Facts – Parson’s hardware store burned down. Insurance wouldn’t pay because he hadn’t complied with policy’s conditions. Parson’s said conditions didn’t comply with Ont. Legislation. Insurers said legislation regulating insurance was ultra vires of Ont.SCC – Majority: it’s a local Act about local property and relates to civil rights. Should be within ProvinceDissent: It’s business of trade in insurance trade and commerce (Federal).

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JCPC – Montague Smith: Sometimes items not in s.91 or s.92. In those cases “the two sections must be read together, and the language of one interpreted, and, where necessary, modified, by that of the other”. Determined Act relates to property and civil rights. But is it also a trade? Determined no, it’s about contracts. If “Trade and Commerce” was to be liberally read, other classes in s.91 (weights and measures, banking, etc) would not have needed to be included. Authority to regulate T&C doesn’t give authority to regulate contracts of a particular business or trade like fire insurance, so it is within Ont.’s right to have this legislation. DecentralizingLegacy of Parsons:

Parsons Test: 1) Look at s.92, if not there than look at s.91. 2) If there, also look at s.91 and see if there. 3) If there, read the language together to see which is modified by which.

Parsons on Trade and Commerce: 91(2) ONLY involves international trade, interprovincial trade (between provinces), trade affecting the Dominion (ex. oil and wheat).

Parsons on Quebec: Authority that jurisdiction over property and civil rights goes to provinces because of Quebec, thus contract law is a provincial matter. Need to protect that deal to ensure Quebec still controls property and civil rights.

Parsons on Insurance: One of many decisions upholding provincial jurisdiction over insurance (under property and civil rights).

Russell v The Queen 1882 PC pg104Facts –About the Canada Temperance Act, 1878, which allowed local cities/counties to vote to prohibit sales of liquor. Russell caught selling liquor in town where CTA was passed, declared it unconstitutional.JCPC – Montague Smith: Uses Parsons test. Russell argued law should be provincial due to 3 parts of s.92 – 92(9) shop, tavern, saloon to raise money for prov./local purposes ; 92(13) property and civil rights; 92(16) local/private nature. Not 92(9) as it’s diminishing revenue, not raising it. Not property and civil rights, but public order and safety (POGG). Not a local matter as law establishes right to prohibit anywhere in Dominion. Act is machinery for local option not local requirement. Big stuff is federal, because it’s a matter of national concern, law is under federal jurisdiction. Centralizing. Other notes: 1st JCPC consideration of POGG. Idea that anything not covered by s.92 will divert to federal jurisdiction.

Hodge v The Queen1883 PC pg107Facts – About provincial legislation Ontario Crooks Act (Liquor License Act) 1876, which transferred powers of local licensing from municipalities to Boards of License Commissioners appointed by provincial government. Was the Crooks Act ultra vires?

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JCPC – Lord Fitzgerald: Crooks Act makes regulations of a local nature for government of taverns. Doesn’t interfere with trade and commerce, doesn’t conflict with Temperance Act (not validated in that area). Idea of Double Aspect Doctrine. Law is valid under provincial jurisdiction. Subject matter is not about liquor in general, but about licensing or transaction (not contradictory to Russell because characterization of issue is different). Decentralizing. Other notes – Double Aspect Doctrine: subjects may fall under s.91 and s.92 concurrently. Province is entitled to regulate liquor licensing under 92(8, 13, 15, or 16) while Feds control trade and commerce. The dominion and province are equal in kind, but supreme within their spheres.

Local Prohibition Reference (AG Ont v AG Canada)1895 PC pg114Facts – Reference to determine whether Ontario can enact legislation banning retail sales of liquor given Canada Temperance Act. Lord Watson – On its own POGG is a residual power and can’t contradict something under s.92. Ontario can enact regulating legislation, but in areas where local option of CTA has been adopted it’s not valid. Something that is local in nature and origin may grow to effect the whole dominion and as a result under federal jurisdiction (POGG). Where one law contradicts another, federal laws have paramountcy and render other laws inoperative. Overlap (paramountcy). Does the decision reverse Russell? no, there is still the notion that if the problem becomes a general concern to the entire dominion, then POGG authorizes federal jurisdiction – but have to be careful of POGG because if read too broadly it will wipe out all other provincial powers.

Beginnings of Economic Regulation – The Haldane Years

Viscount Haldane Supportive of courts being very involved in nation building. Colonial,

paternalistic views. Idea that judge’s ideal function is to be “a statesman as well as a jurist”. (pg

129) Idea that law and constitution should be elastic and judge can fill in gaps.

Montreal v Montreal Street Railway 1912 PC pg130

Regulation of traffic on provincial railways that cross Dominion railways. If Feds can control anything of a local or private nature in the name of POGG,

the provinces could have nothing left. Decentralizing

AG Canada v AG Alberta (The Insurance Reference)1916 PC pg130

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Federal Act requiring companies providing insurance in multiple provinces to be licensed.

“it must now be taken that the authority to legislate for the regulation of trade and commerce does not extend to the regulation by licensing system of a particular trade in which Canadians would otherwise be free to engage in the provinces” – Haldane

POGG “does not enable the Dominion Parliament to trench on the subject-matters entrusted to the provincial Legislatures by the enumeration in s. 92”

Affirmed provinces control licensing of particular trades including insurance. Decentralizing

Reference re The Board of Commerce Act & Combines and Fair Prices Act1922 PC pg 133Facts - Board of Commerce Act created board to deal with combines, monopolies, price fixing, etc. Combines Act gave board power to investigate, make orders, with penal offences. Order about fixed profit margins for sale of clothing led to constitutional challenge. Haldane: Can’t use POGG for permanent legislation during peacetime, it’s an emergency provision. Trade and Commerce is only applicable when supplementing other s.91 powers (so during peace time, and with permanent legislation, there is no power under trade and commerce or POGG that allows the federal government to legislate in a particular trade). Criminal Law power is “applicable only where the subject matter is one by which its very nature belongs to the domain of criminal jurisprudence” – tries to freeze criminal law to narrow grounds of 1867. Decentralizing.

Fort Frances Pulp and Paper Company v Manitoba Free Press Company1923 PC pg138Facts – Regulation of newsprint prices. Even though the war is over, market still variable and public access to newspapers is essential. Haldane – This is a special case where due to war and its aftermath sweeping federal rules can be necessary. Deference to the government for what is essential is permissible at this time. In these situations, legislating under POGG is acceptable. Law being enacted is temporary. Centralizing (sort of)

Toronto Electric Commissioners v. Snider1925 PC pg142Facts – 19 year old dominion Act which established board to mediate labour disputes. Haldane – Cannot use POGG – not an emergency, less evil than intemperance. Haldane argues this act concerns civil rights and by acting penalty (ancillary language) to the legislation it does not bring it within federal legislation. Trade and

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Commerce – not powerful enough to overcome civil rights. Provincial autonomy extremely important. Decentralizing.

The King v Eastern Terminal Elevator Co.1925 PC pg146Facts – Canada Grain Act brought in board meant to facilitate and regulate grain transactions. Also taxes on surplus grain to pay for the Board. Haldane – Argued it`s a matter of national concern but no emergency, no POGG. Individual grain elevators are local in nature. Feds can`t regulate a trade which falls under provincial jurisdiction under the guise of international trade. Decentralizing.

The Depression and the New DealProprietary Articles Trade Association v AG Canada1931 PC pg159

S.498 of the Criminal Code makes it illegal to participate in a combine (merger that limits competition or increased prices to public detriment). Is this within scope of Criminal Law?

Lord Atkin – Statutes are valid. Quoted AG Ontario v Hamilton Street Railway – “Dominion has power over criminal law in its wildest sense” but constitutional autonomy of provinces must be considered. Still, criminal power must extend to being able to create new offences. As long as offence isn’t created just to intrude on provincial powers it can be criminal as long as it’s a prohibited act with penal consequences. Also believe trade and commerce rule can be invoked on its own. Centralizing.

Reference re the Regulation and Control of Aeronautics in Canada1932 PC pg161

Federal legislation regulating aeronautics. Is it Federal or provincial? Not foreseen by makers of constitution so no clear place it goes. It’s a matter of national interest and importance so it ends up Federal.

Centralizing Idea of gap theory, if there’s nowhere to put it – Federal.

Reference re the Regulation and Control of Radio Communication in Canada1932 PC pg163

Federal legislation regulating radio communication. Is it Federal or provincial? Not foreseen by makers of constitution so no clear place it goes. Radio waves can travel across borders, national concern so Federal.

Centralizing.

AG Canada v AG Ontario (Labour Conventions)1937 PC pg171

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Facts – Canada entered treaty about labour conditions. Established Federal laws based on the treaty. Lord Atkin – Usually this would be well under property and civil rights but must consider federal treaty power. Dominion can’t make treaties that override provincial powers without a great deal of necessity. As globalization happens still essential watertight compartments of constitution. Legislation is ultra vires. Decentralizing.

AG Canada v AG Ontario (The Employment and Social Insurance Act)1937 PC pg176Facts – Act provided workers with compulsory EI insurance. Lord Atkin – No special emergency. Dominion is entitled to tax but not necessarily to spend the tax however it wants. Act invades civil rights within provinces. Legislation is ultra vires. Decentralizing.

AG British Columbia v AG Canada (The Natural Products Marketing Act)1937 PC pg177Facts – Canada sought to equalize prices of natural products. Lord Atkin – This relates more to in province transactions rather than interprovincial trade. POGG is only for pressing matters. Legislation is ultra vires. Decentralizing.

Pith and Substance AnalysisSwinton on conducting a modern Federalism analysis:

1. Identify the “matter” of the statute (pith and substance)2. Delineate the scope of the competing classes3. Determine the class into which the challenged statute falls

How to determine pith and substance:1. Purpose – intention of the law, statutory context, what is the “mischief”

(problem) the statute is meant to correct.2. Effect – how is the statute administered? How will it change the rights and

liabilities of those affected by it? (i.e. provincial tax so high it halts interprovincial trade)

3. Administration of the law – what purpose will be served by how the law is administered? (ie. Leaflet distribution – reducing litter or preventing religious group from spreading view?)

4. Colourability – is law being “sneaky” using guise of one purpose to achieve another.

R. v. Morgentaler1993 SCC pg215Note – test for federalism analysis from R v. Morgentaler

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1) identify the matter of the statute2) delineate the scope of the competing classes3) determine the class into which the challenged statute falls

Facts – Nova Scotia passed legislation to only make abortion (and a few other procedures) available in hospitals without insurance coverage. Argued it’s under provincial health laws. Feds argue it’s under criminal law. Ruling – Legislation is ultra vires, it belongs to criminal law.

What is the matter? – look at legal effect (strict legal interpretation) and practical effect (social and economic purposes which the statute was enacted to achieve).

o Legal effect uncertain if it will effectively cause total ban on abortiono Denies public insurance coverageo Language “virtually indistinguishable” from Criminal Code

Use of extrinsic materials allowed such as Legislative history, Hansard debate.o Talk in parliament about Dr. Morgentaler’s clinic, other concerns

incidentalo No studies or consultation regarding list of banned procedures or

harmful effects of abortions done in clinics. Scope of heads of power

o Has NS regulated the place for delivery of a service for quality control or to prohibit the performance of abortions to suppress or punish something deemed socially undesirable. Section 91(27) – federal parliament’s jurisdiction over criminal law; or ss. 92(7), 92(13) and 92(16) the province’s jurisdiction over hospitals, the medical profession and matters of health.

Pith and Substance – ruled primary object of Act was to prohibit abortions outside hospitals as socially undesirable conduct, with concern for women’s health ancillary. Legislation was invalid because it involved the regulation of the place where an abortion may be obtained, not from the viewpoint of healthcare policy (provincial), but from the viewpoint of public wrongs or crimes (federal). Court did not find the Act invalid under the doctrine of colourability; this is questionable since one could argue that there is no clearer example of colourability.

Reference re Employment Insurance Act s.22 and 232005 SCC 56 pg226Facts – Are maternity and parental benefits part of Federal employment insurance? Quebec wants to be the one providing these benefits. Holding - The Supreme Court overturned the decision, holding that the provision relating to maternity benefits represents a valid exercise of the federal jurisdiction over unemployment insurance. The purpose of maternity benefits is to protect workers’ incomes from the time they lose or cease to hold their employment to the time they return to the labour market, the Supreme Court held, and this is consistent with the essence of the federal jurisdiction over unemployment insurance. The Court

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also concluded that, like maternity benefits, parental benefits are a mechanism for providing replacement income when an interruption of employment occurs as a result of the birth or arrival of a child. The inclusion of this type of benefit in the employment insurance scheme is an extension made necessary by the equality rights of adoptive parents and natural parents.

ValidityDouble AspectMultiple Access Ltd. v. McCutcheon1982 SCC pg237Facts – Insider trading. Ontario statutes but federally incorporated companies which are supposed to fall under Federal regulation. Charged under Ont. Securities Act, argued they’re only under federal jurisdiction. Holding – POGG comes into play s.92 refers to provincial companies, but no federal companies under s.91 (this is done through POGG). Both statutes valid and applicable. Double aspect applies as the lays don’t conflict they are co-operative within their respective spheres.

Necessarily Incidental/Ancillary Powers The pith and substance doctrine enables a law that is classified as in relation

to a matter within the competence of the enacting body to have incidental or ancillary effects on matters outside the competence of the enacting body.

The ancillary powers doctrine applies where a provision is in pith and substance outside the competence of its enacting body; the potentially invalid provision will be saved where it is an important part of a broader legislative scheme that is within the competence of the enacting body.

General Motors of Canada Ltd. v. City National Leasing1989 SCC pg242

Action against GM for discriminatory pricing policy. GM argued this federal civil action is invalid as all things “civil” are provincial.

Steps to follow:o Determine whether impugned provision intrudes on provincial powers

and if so to what extent. o Establish whether the Act (or severable part of it) is valid. If scheme not

valid it’s over.o Scheme is valid- determine whether impugned provision is sufficiently

integrated with scheme that it can be upheld by virtue of that relationship. This requires considering seriousness of encroachment to decide on proper standard for relationship. rational connection test for minor encroachment is sufficient; stricter test for major encroachments (here, the rational connection test is sufficient and this provision is indeed intimately linked to the act, and this saves the provision)

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In this case – provision of Act was valid – it’s an integrated component of economic regulation strategy.

Quebec (A.G.) v. Lacombe2010 SCC Supplement pg 2Facts – Commercial plane operation near tranquil lake. Lacombe possesses federal licence. Zoning bylaw changed to prohibit aerodromes. Argued zoning restriction ultra vires Quebec.Holding – Law is ultra vires. Not saved under ancillary powers. Pith and substance = purpose and effect of law. Preamble of law suggest looking for balance between home owners and commercial uses, but Hansards, etc suggest it’s narrow purpose – regulate aeronautics in that area which is clearly federal. Can only be saved under ancillary powers but law is not sufficiently integrated into the legislative scheme.

Interjurisdictional Immunity Situation where provincial law is valid in most applications but in some

overreaches to federa powers. 4 aspects:

o Only applies to Prov. law encroaching federally (has never successfully gone other way)

o Only applies to certain federal matters (uber-federal)o What these matters are set by common lawo Only applies if provincial law goes to heart of federal matter – more than

incidental Usually applied to:

o Federally incorporated companies (valid prov law can’t impair status/essential powers)

o Federally regulated undertakings (interprovincial or international transportation or communication immune from prov powers effecting vital part of undertaking.

o Other federal matters 2 key conceptions

o s.91 and s.92 are watertight compartments? – Lord Atkin says there must be strict boundaries

interjurisdictional immunity doctrine sets out exclusively federal jurisdictions and provincial spillovers are not valid (so the provincial act may be valid, but if it spills over into an exclusively federal jurisdiction, it becomes invalid)

in theory, this theory applies to both levels of government, but in application it usually favors federal government

o the modern approach – messy overlaps between statutory regimes are not only inevitable but in many ways desirable courts only intervene if there is conflict between 2 valid laws, and this case, paramountcy applies, not interjurisdictional immunity

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McKay v. The Queen1965 SCC pg251Facts – Federal election sign in front of house. Municipal law prohibiting signs – charged. Holding – Fed election signs are a federal matter. Bylaw can’t prohibit them. Dissent – prohibiting sign is incidental, not heart of the matter.

Commission du salaire minimum v. Bell Telephone Co. of Canada (Bell #1)1966 SCC pg255 MartlandFacts – Bell as federal company – does Quebec minimum wage act apply to it? (No Fed. Minimum wage) Does it sterilize regular employee/employer relations?Holding – Minimum wage does NOT apply – Feds would need their own legislation. Expansion of federal immunity. “In my opinion, all matters which are a vital part of the operation of an interprovincial undertaking as a going concern are matters which are subject to the exclusive legislative control of the federal parliament within s.91(29).”

Bell Canada v. Quebec (Commission de la santé et de la securite du travail) Bell #21988 SCC pg257 BeetzFacts – Bell as federal company – application of provincial health and safety laws. Holding – Prov. laws do not apply. Further expands power. Pg. 262 – “In order for the inapplicability of provincial legislation rule to be given effect, it is sufficient that the provincial statute which purports to apply to the federal undertaking affects a vital or essential part of that undertaking, without necessarily going as far as impairing or paralyzing it.”

Canadian Western Bank v. The Queen in Right of Alberta2007 SCC pg264 Binnie and LeBel

“Interjurisdictional immunity is a doctrine of limited application, but its existence is supported both textually and by the principles of federalism” [33]

In theory, the doctrine is reciprocal [55] “we intend now to make it clear that the Court does not favour an intensive

reliance on the doctrine” [47] “in the absence of impairment, IJI does not apply” [49]

Quebec (A.G.) v. Canadian Owners and Pilots Association (COPA)2010 SCC Supplement pg 8Facts – Commercial plane operation in airfield on agricultural land. Registered through feds but Quebec orders them to demolish. Argued ultra vires Quebec.Holding – “Protected core” of federal aeronautics law is impaired. Law is ultra vires. Pith and substance of legislation is land planning and agriculture. Clearly feds have

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power to control where aerodromes go. Case law says this is clearly in protected core of power. Does law “impair” fed power? Yes – IJI applies. Dissent – not applicable – does not impair.

Insite – Criticisms of IJI Insite tried to apply IJI in reverse to provincial law. IJI is in tension with dominant approach that permits concurrent federal and

provincial legislation with respect to a matter, provided the legislation is directed at a legitimate federal or provincial aspect.

IJI in tension with cooperative federalism – interlocking legislative schemes. IJI may overshoot power in which its grounded and leave “legal vacuums” IJI not abolished, but significantly narrowed. In Insite case – impossible to delineate provincial sphere of “health”, risk of

legal vacuum, movement to cooperative federalism. Paramountcy

Common Law doctrine which tells us that where there are inconsistent or conflicting federal and provincial laws it is the federal law which prevails.

For paramountcy to apply, need 2 statutes – federal and provincial applying to the same facts.

The test – when are 2 laws deemed inconsistent?o step 1: are the two laws valid? can the province enact their law? can

the feds enact their law? if not valid; not a paramountcy issue if valid, proceed to step 2

o step 2: if both valid, is there a conflict? if no conflict, not a paramountcy issue if yes, proceed to step 3

o step 3: 2 different ways for paramountcy to occur impossibility of dual compliance/express contradiction : the

clearest case of inconsistency arises in situations of express contradiction, that is, when compliance with one law involves breach of the other

a narrow interpretation – more likely to favour provinces expanded in Bank of Montreal v Hall

o case law says you can have a situation where complying with the provincial law frustrates the purpose of the federal law, even though it is operationally possible for both to exist

frustration of legislative purpose/ the negative implication doctrine/ covering the field test: in Bank of Montreal v. Hall, however, we also learn that there will be contradiction between two laws if compliance with the provincial law will frustrate the purpose of the federal law

o a broad interpretation of conflict – more likely to favour feds judicial activism

The overarching principle to be derived from McCutcheon and later cases is that a provincial enactment must not frustrate the purpose of a federal enactment, whether by making it impossible to comply with the latter or by

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some other means, in this way, impossibility of dual compliance is sufficient but not the only test for inconsistency.” Rothmans at para 14)

Ross v. Registrar of Motor Vehicles1975 SCC pg273

Justice Pigeon applies express contradiction and impossibility of dual compliance tests and holds that it was not impossible to obey both laws because all the driver had to do was follow the stricter law; narrow understanding of conflict.

Multiple Access Ltd. v. McCutcheon1982 SCC pg 277

“mere duplication without actual conflict or contradiction is not sufficient to invoke the doctrine of paramountcy and render otherwise valid provincial legislation inoperative” pg280

Problem with parallel statutes – double liability

Bank of Montreal v. Hall1990 SCC pg 282

prov. require some kind of warning by bank before seizure, while fed. law does not

Justice LaForest: dual compliance will be impossible when the application of the provincial Act is “incompatible with the federal legislative purpose” (pg285)

a. so it may be possible to comply with both operationally, but since the prov. law frustrates the purpose of parliament, they are in conflict

o i.e. the focus must be broader than just looking at the laws operationally

Summary of IJI vs. paramountcy number of statutes needed

o paramountcy: must have 2 valid laws, or else there is no paramountcy issue

o IJI: don’t need to have 2 laws the remedies are different

o paramountcy: inoperative laws can be revivedo IJI: inapplicable law cannot be revived (because the law is

inapplicable even if there is no federal statute) substance

o paramountcy applies to any mattero IJI only for exclusively federal matters

why does it mattero IJI: worrying about vital functions being impairedo paramountcy: worrying about express or purposeful conflict

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Peace, Order, and Good GovernmentNature and branches of POGG

Residuary nature of power

3 branches:

The Gap Branch Has come to be used in situations where there was an incomplete

distribution of power First seen in Parsons. Power to incorporate companies with powers beyond

provinces must be federal. Radio Reference JCPC – constitution silent on treaties. S. 132 discussed

imperial treaties but silence on treaties Canada entered into on its own. Gap so it’s federal.

National Concern Branch The test is: whether the matter of the legislation goes beyond local or

provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole

The most important element of national concern is a need for one national law which cannot realistically be satisfied by cooperative provincial action because the failure of one province to cooperate would carry with it adverse consequences for the residents of other provinces

Most controversial. First in temperance cases. Most articulated in Local prohibition reference. Big/important things supposed to be federal. Russell – local/provincial matters can rise to be of national concern and apply to POGG.

Fell out of favour in the Haldane years when POGG only justified in emergencies. Viscount Simon in Ont and Canada temperance federation repudiates emergency as POGG – true test in real subject matter of legislation – goes beyond local to concern of dominion as a whole (aeronautics and radio) then it becomes federal even if it touches on provincial areas

Test – matter of the legislation goes beyond local/provincial concerns or interests and must by its nature be the concern of the dominion as a whole. Johanson, Monroe.

Need for one national law where issue can’t be satisfied by cooperative provincial action because if 1 province doesn’t follow through consequences would be national/catastrophic.

Emergency Branch In sufficiently great emergencies, such as war, the pogg power would

authorize temporary laws which in normal times would be competent only to the provinces

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Recognizes federal laws likely to trench on provincial so limits it to specific and very necessary cases. War/pestilence, etc.

Since 1949 – national concern alive and well, Haldane years this was essentially the only branch given power.

OverviewTwo separate functions of the Constitution:

1. It gives to the federal parliament permanent jurisdiction over distinct subject matters which do not fall within any of the enumerated heads of s. 92 and which, by nature are of national concern, for example, aeronautics, and the national capital region

2. The POGG power gives to the federal Parliament temporary jurisdiction over all subject matters needed to deal with an emergency

Munro v. National Capital Commission1966 SCC pg297

Upheld under POGG as “single matter of national concern”.

Reference re Anti-Inflation Act [1976] 2 S.C.R. 373Laskin – centralist versus Beetz (QC) – classical – divided. JCPC – no dissents, has had profound impact but no insight into deal making to get unanimity. Laskin + 3 plurality – not majority but most judges agreeRitchie + 2 concurring minorityBeetz + 1 dissent Facts 1975: Feds introduced legislation to deal with double digit inflation accompanied by fairly high unemployment. Established system of price, profit, income controls. Broad recognition of economy, applied to fed and prov regulated companies of a certain size. Temporary but far reaching legislation. Referred to SCC – was it ultra vires?

Held: Intra vires federal government – on basis of national emergency power under

POGG. Government of Ontario – wanted it to apply but argued it was valid under

national concern doctrine. In the alternative, could also be POGG emergency doctrine. Economic crisis can be national emergency. Don’t need war or pestilence. Imperiled country as a whole.

Argued against – Even if emergency power exists, no emergency. Law is so far reaching it will decimate provincial power. Several groups argued inflation not singular matter but array of economic issues subject to provincial regulation.

Upheld 7-2 on emergency grounds 5-4 split that it wasn’t valid under national concern doctrine.

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Laskin – matter is “inflation” or “containment of inflation”. Not an articulated head of power, falls to feds to regulate in case of a national emergency. Matter has unity and indivisibility as it involves monetary policy.

Beetz (dissent) – matter being regulated, specifically local trade and commodity processing, property and civil rights, legislation oversteps. Inflation an aggregate. Look at operation and scale of law rather than the purpose

Ratio: the federal government has the power under POGG to bring in temporary legislation to deal with a national emergency, real or apprehended, even in peace-time.

6 things to take into consideration when looking at the emergency power

1. Context: what context gives rise to invocation of the emergency power? there are certain kinds of things that justify an emergency on top of war and

pestilence an economic crisis could trigger the federal emergency power but the power could be used to provoke actual and apprehended crises Beetz, however, says there is no emergency, whereas Laskin says the federal

government has a rational basis to believe that inflation had become a national emergency (does not matter if there actually is an emergency)

2. Coverage: did the exemptions in the Act diminish the requisite comprehensiveness?

for there to be an emergency, there should be no exemptions Beetz said that if this was truly an emergency, then the legislation would apply

to everybody – but there are large-scale exemptions under the legislationo the act exempts certain industries based on size of companies

Laskin reasons the exemptions does not undermine the legislation’s comprehensiveness, and furthermore companies have the choice of opting into the legislative regime

3. Signal: how explicit did the feds have to be to signal that an emergency existed?

Beetz – if it was an emergency, the preamble would say it was an emergency but even if it did indicate an emergency, it would not be enough

Laskin – if there was any ambiguity in legislation, it was acceptable to interpret it as an emergency the words “necessary” signals a crisis

4. Circumstances: what evidence did the feds have to marshal to show that there was a crisis?

Laskin – not necessary to prove it as fact, as long as feds can show they have rational basis for their legislative judgment (wisdom, expediency, and success of the legislation is no the issue – i.e. how good the legislation is irrelevant to its constitutionality)

o rational basis = Parliament does not have to be right in deciding that there was, or might be, an emergency; they only need to show that there may have been some concern for an emergency

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Beetz – only one province supported the notion that there was an emergency; and Hansard should be used, which shows the act was enacted with an eye to the national concern doctrine of POGG, not the national emergency doctrine

5. Overlap: did this power overlap and invade provincial jurisdiction? Laskin – monetary policy not particular trades. Justified under POGG so it’s

legitimate and it’s temporary. Beetz – frontal and large scale. Impacts not merely incidental, effects local

business, pricing, profits, income. Big concern – so sweeping that if found to be valid feds can invade provincial jurisdiction at will.

6. Duration: for it to be emergency legislation, must it be temporary? Agreement between plurality and dissent – must be temporary. Pg 304 – laskin decides case under emergency doctrine, says courts shouldn’t

go further and determine national concern issue. Govt has pogg power to bring in national concern legislation even in times of

peace. What does Beetz J. say in dissent about “distinctiveness”? What does

this signal? distinctiveness test Beetz – what do we need for national concern – indivisible, unified, and

specific. Says it’s aggregate (not indivisible) so it’s not enough. Distinctiveness – national concern cases decided up to this point are distinct

subject matters not falling under heads of s.92 which by their nature are of national concern. Govt must be explicit when using emergency power.

Where is the jurisdiction in the constitution for regulation of the environment?

1982 Amendments thinking about revenue from forestry resources, relatively little

1991 Report looking at international aspects of environmentalism 1992 Environmental Fatigue dropped issues 2003 2% Canadians saw environment as most important 2006 more concern Present – less concern as concern about economy.

Tragedy of the Commons – with common property – use for immediate benefit to self without considering immediate benefits. Sustainability – satisfy needs without harming future interests.

ARGUMENTS Keep things close to better regulate vs. blanket sweeping approach to ensure

adequate coverage. S.92 (10) local works 92(5) public lands property civil rights local private nature

electrical energy resource amendment punishment 91 POGG 91(1a) federal property navigation and shipping fisheries trade and

commerce tax criminal law

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Big ones POGG and Criminal Law S.7 (life, liberty, & security) involves environment – used mostly by those trying

not to comply Jurisdiction over wildlife, migratory birds, treaty rights What about matters of local nature that grow? Where does paramountcy fit in?

R v. Crown Zellerbach Canada Ltd.[1988] SCC pg323Facts: Charged under Ocean Dumping Control Act – log dump in deep ocean water – prohibit as dumping at “sea”. Place at issue a salt water inland cove. Any evidence of damage? No. Trial judge ultra vires. Appeal dismissed, went to SCCIssue: Does act extend to dumping in provincial waters?

Company argues: Challenge of dumping in provincial waters of substances not shown to be polluting [pg325]

Feds argue – prevention of marine pollutionSCC holds – Intra vires federal government – POGG Justice LeDain

pith and substance is marine pollution, because of its predominantly extra-provincial as well as international character and implications, is clearly a matter of concern to Canada as a whole

where the inability of one province to legislate would carry adverse consequences for the residents of other provinces, a subject matter is one of national concern and falls under peace, order and good government, the national concern doctrine

the general purpose of the Act is to regulate dumping at sea and to prevent harm to marine environment

limits in Act – limited to marine pollution in salt water. Not trying to take over everything.

not a broad power; Act makes a distinction between salt water and fresh water (limits regulating pollution in salt water) – for the court, this makes it clear where the distinction lies gives leeway for legislating in the most efficient way

subject matter as transboundary – national concern looks at restricted substances on schedules of Act, etc to get to pith and

substance of marine pollution. no question non-pollutant in provincial waters shouldn’t be under federal

jurisdiction – have to go to POGG.

Test for National Concern:LeDain surveys the case law and the sets out what he considers to be the four key aspects of the national concern test (page 326):

1. Separate and distinguishable from the national emergency doctrine; not a situation where temporary legislation would be effective;

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2. Applies to new matters (brings them under federal jurisdiction), those which didn’t exist at confederation; and other matters which having been matters of a local or private matter have since become matters of national concern;

3. Subject matter must have a singleness, distinctiveness, and indivisibility that clearly distinguishes it from matters of provincial concern; and

a. In determining singleness, distinctiveness and indivisibility, relevant to consider whether the regulation of the matter is beyond provincial ability to deal because they involve either federal competence or that of another province – the provincial inability test

4. Designed to “fill the gap”, not give unlimited power to feds (Reasonable limits)

Test applied, concluded it meets 3, is extraprovincial in scope. Looks to international conventions, considered of a different nature. Hard to draw line between internal waters and federal ocean, and this distinction is necessary with regulatory and penal law. Legislation is valid.Key Concern of the Dissent:

LaForest J. dissents, primarily, because in his view marine pollution lacked the distinctiveness required of a matter of national concern

No evidence of impact beyond provincial limits. Not an emergency. federal control over the environment – gutting to provincial jurisdiction Effectively regulating gives too much power to feds. Law too broad – blanket prohibition even against non-harmful dumping Wholly in province on province-owned land Necessity for feds and provinces to work together – cooperative federalism

crucial. Feds have jurisdiction under criminal law power. Newness – fact that a matter is new helps to see if national concern applies,

but it’s not determinative. Pollution not a new matter. (Argues that previous cases dealt with radio, aeronautics, narcotics – these were new pollution is not a new phenomenon).

3 reasons why marine pollution is not single, indivisible and distinct: marine waters not wholly bounded by coast – extend upstream. Line between salt and fresh water can’t be demarcated clearly – shifts constantly. Marine pollution not just from things dumped in water, also air etc.

To allocate marine pollution to the feds would “sacrifice the principles of federalism” because the key fact is that the Act requires no evidence of actual pollution.

Ratio – marine pollution is a matter of concern to Canada as a whole. Where inability of 1 province to legislate would adversely affect members of other provinces – falls under national concern doctrine. 1

1 Note that up until this case, there are 2 strong cases for single, distinct matter when arguing about POGG for both sides: EI Reference and Crown Zellerbach.

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Some extraterritorial dimension that makes it hard for provinces to effectively regulate.

What are effects of not regulating effectively? Inability to clarify indivisibility

POGG is permanent jurisdiction over distinct matters not enumerated in 92 which are matters of national concern and temporarily for anything needed during emergency.

Friends of the Oldman River Society v. Canada (Minister of Transport)1992 SCC pg342 La Forest for majority

Issues not single, indivisible, etc Constitution should be interpreted to afford both levels of government ample

means to protect the environment without stepping on the division of powers Project to build dam on Oldman river, approval granted without an

environmental assessment. Say they’ve done their own assessment, that’s enough.

Process of determining if it’s valid – says it’s not a POGG case. Idea of cooperation – if local product impacts federal control, the federal participation is required.

Environment implicated in many aspects of federal and provincial responsibilities.

Moving towards an understanding of federalism in the environment context where it really makes more sense to have cooperative initiatives.

At the end of the day: Provinces can indirectly affect extra-provincial trade by decisions which affect

cost of production, or decisions which affect retail sales within a province; Provincial regulatory schemes are likely invalid if they directly affect extra-

provincial movement by limiting production. But as a complicating factor in all of these cases – important to look at the

product involved – and where the majority of that particular product is consumed and how, if at all, that impacts on the holding in the case

Trade and CommerceShould economic regulation be shared?

The key tension in this area, is one we have seen since we first looked at the case of Citizen’s Insurance v. Parsons – trade and commerce, s. 91(2) and property and civil rights, s. 92(13)

Since Parsons it has been accepted that, in general, intraprovincial trade and commerce is a matter within provincial power, and the federal trade and

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commerce powers is confined to interprovincial and international trade and commerce, and “general” trade and commerce

Should economy be federal or provincial? – political autonomy and economic integration

Federal – international trade needs strong centralized power Prov – regulation of localized resources makes sense. Prov – trade and commerce takes over everything (Parsons)

Summarizing the different perspectives key areas of federal jurisdiction

o copyrightso patentso bankingo trade and commerceo POGG

key areas of provincial jurisdictiono family contracts and tortso property and civil rights (rule that entitles somebody to have a

right against another person)o civil liberties (exists where there is an absence of legal rules – so

where there is no rule, it is a civil liberty) key worries for producers

o pricingo distribution

key worries for consumerso health and safety/uniform standardo promotion of competition

Black and Co. v. Law Society of AB 1989 SC pg 350

Alberta rule preventing big TO firm moving in to AB. Can lawyers be prevented from opening branch office in other province? Mobility and charter for a human rights objective, not economic union or

federalism Some areas of private law are federal (ie banking, patents, marriage) Distinction between civil rights and civil liberties. Federalism civil rights exist with legal rule saying 1 person is entitled to

something from another. Contracts, torts, etc Civil liberties – absence of rules, things that are not forbidden. End of 1970s move to reconstitute federal power. Move to be able to join

NAFTA etc. What are producers v. consumers interested in. Uniform standard,

competition, pricing, distribution, etc. When decisions made provincially effect things out of province – then what?

Prov. Marketing schemes usually spill over, when does it invalidate regime? To 28

what extent should prov be able to burden extraprovincial trade in order to help interprovincial trade?

King and Eastern, Margarine, etc. all struck down as they effected too much

1. Marketing Regulation Important to note in considering marketing and regulation that there are both

producers and consumers who seek regulation, albeit for different reasons

2. Provincial Marketing Regulation Contracts of sale and purchase are matters within property and civil rights The question: to what extent should a province be permitted to burden

interprovincial trade in the course of regulating intraprovincial trade Ultra vires: Lawson (1931); Manitoba Egg (1971); Burns Food (1975); CIGOL

(1978); Central Canada Potash (1979) intra vires: Shannon (1938) – milk marketing scheme set up as interprovincial ;

Home Oil (1940); Carnation (1968) Agricultural Products Marketing (1978)

Canadian Egg Marketing Agency v. Richardson1998 SCC pg353

NWT egg producers excluded from national marketing scheme (because no producers at time of enactment). Means egg producers in NWT can’t sell outside of province.

Primary purpose of legislation not held to be discrimination so it’s upheld. Clarified that s.121 and s.6 were for two different purposes. s.121 for economic union s.6 of individual freedom of movement Does a purposive analysis – finds that cannot use s.6 because it is about right

to mobility of individual, while the legislation is about egg marketing of Canada respondents failed to establish that the effects of the scheme displaced the dominant purpose of egg marketing regulation.

Dissent – McLaughlin – impedes right to pursue chosen livelihood, should be declared invalid.

Carnation Co. v. Quebec Agricultural Marketing Board[1968] SCC pg 356

Key point: that it is the aim and not the impact of the legislation that is the determinative factor in this case; if the impact and not the aim of the legislation has an effect on interprovincial trade, law will not be found ultra vires province on that basis

Board fixes price of raw milk. Effects Carnation, which does lots of business outside of Quebec. Board has quite a bit of power. Carnation had to pay more than free market price of milk. Argued most of milk produced was shipped and sold outside of prov.

Attempt to regulate trade in matters of interprovincial concern?

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Holding: effects on interprovincial trade merely incidental, the aim of the legislation is not to regulate interprovincial trade – intra vires.2

Aim to regulate producer/processor relationship. Has to do more than effect interprovincial trade, has to have been enacted in

relation to it.

A.G. Manitoba v. Manitoba Egg and Poultry Association [1971] SCC pg 360 (AKA Manitoba Egg Reference)

The majority view: where the pith and substance of an Act aims at the control of interprovincial trade, then that Act will invade exclusive federal territory and will be ultra vires the province enacting the legislation.

Case referred because MB frustrated by ON and QC rules. ON and QC hatched marketing plan together which gave preference to locally produced product. MB claimed to be injured by plans in place.

Local producers had lobbied for protection from cheap imports in Canada’s biggest provinces. MB made plan just like QC model then referred their scheme to MB CA which had as its aim constitutionality of QC scheme.

SCC said ultra vires – intrusion into s.91(2) trade and commerce. Court doesn’t indicate it’s looking at Quebec but it wouldn’t have been lost on the court. Pith and substance to control and not incidentally effect interprovincial trade. Distinguished from Carnation3. Want to get advantageous conditions for local producers. Carnation was about price fixing, where Manitoba scheme was a form of control that extended to the various stages of production, consumption etc.

Laskin – distinguished Carnation as being about price fixing (like wage rates) MB form of marketing extending through all phases from production to consumption. Distribution/supply management more federal vs marketing.

Ratio – where pith and substance aims at interprovincial trade it’s ultra vires of provinces.

Criticisms: Hard to distinguish from Carnation. Effects of legislation never realized – referred first. Hypothetical. Should it have

got review in the first place?

Re Agricultural Products Marketing Act [1978] 2 SCR 1998

11 statutes in question, all upheld on the basis that interprovincial trade was federal jurisdiction (but there seems to be little interprovincial movement).

On the face of it, this seems like a major expansion of federal power into local markets. However, precedential value is slight. The Court mostly seems

2 The fact that the transaction wholly within province does not make it within provincial jurisdiction; similarly, just because the product gets shipped out, does not make it interprovincial legislation.3 Carnation was where the pith and substance of milk marketing was intraprovincial trade; this legislation is about eggs wherever they may be produced, and obtain for producers most advantageous conditions for marketing of products

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impressed by the level of cooperation between the parties; a factor which seems to carry the day.

Upheld on idea feds handled interprovincial trade. national + provincial egg marketing agency Means to deal with disposal of surplus product Heavy intervention into local markets. Most eggs are locally consumed. Level

of cooperation at stake is high. Extensive power to regulate trade within provinces.

Natural Resources what are the key federalism issues we are dealing with here – how are the

natural resource cases different then the marketing cases?

Canadian Industrial Gas and Oil v. The Government of Saskatchewan, [1978] SCC pg 370

SK fixing price of oil at well head – 98% of the oil is exported. The (provincial) legislation is directly aimed at the production of oil destined

for export and has the effect of regulating the export price, since the producer is effectively compelled to obtain that price on the sale of his product

Struck down – held as trying to regulate interprovincial trade. In Carnation the impact is indirect, while here oil being regulated is destined

for export shows that what the product is affects the outcome of the case. Dissent – pith and substance is the taxation and control of natural resources –

prov power

Central Canada Potash v. Government of Saskatchewan[1979] SCC pg 375

Direct quotas on potash and controlled through licensing; almost all exported. Since virtually all of the potash produced was exported, SCC struck down the

legislation holding it concerned distribution, not production. Decision criticized as controls are local (at the mine). Producers given less

control than distributers.

Concerns: where do you draw the line? what counts as incidental? 98% is obvious but what if it is less? producers cannot control what distributors do; this will effect provinces very different – we have in Canada both producer and consumer provinces, and main producing provinces will have more controls on them than provinces with more integrated provinces

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Federal Powers Over Economic Regulation – Regulation over Interprovincial and International TradeCitizen’s Insurance v. Parsons (again)

2 branches of federal power over trade and commerce1) interprovincial and international trade2) general regulation of trade

The King v. Eastern Terminal Elevator Co. (again)1925 PC pg146

Ratio – the federal government cannot undertake to regulate a trade which falls under provincial jurisdiction under the guise of international trade4

Dissent: o grain is very important and should be federal national concerno no single province could legislate to control this fieldo in fact, could even be an emergencyo language in this case suggests frustration with JCPC and dominion losing

its power to legislation on questions of extreme importance

The Queen v. Klassen1960 ManitobaCA pg382

Federal wheat board act has quota on grain producers enforced through elevators

Caught intraprovincial transactions – local works; Klassen argued that the declaration that all elevators were for general advantage was ultra vires

Feds control export market but case in question was purely local Ruled – pith and substance of Act is interprovincial trade and export – local

application is incidental a shift from past cases Goods don’t have to cross the border, the feds can regulate things within

province if necessary to effectively regulate things that do cross borders leave to SCC was applied but denied so perhaps SCC is essentially affirming

what the Man. C.A. concluded

Caloil Inc. v. Attorney-General for Canada1971 SCC pg387

Klassen affirmed – upheld unanimously with necessarily incidental doctrine Can’t sell eastern oil past QC – meant to protect the west – then licensed oil Catches trade in and between provinces. Pigeon J. holds [pg387] “Under the circumstances, the interference with local

trade, restricted as it is to an imported commodity, is an integral part of the 4 Decided at the time in which courts decided if no national emergency, no federal legislation allowed, and when where most grain produced in province was destined for international trade.

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control of imports in the furtherance of an extraprovincial trade policy and cannot be termed ‘an unwarranted invasion of provincial jurisdiction’”.

Federal Powers Over Economic Regulation – General Regulation of TradeLabatt Breweries of Canada v. A.G. Canada1980 SCC pg392

Food and drug act controls labelling of light beer – must have certain alcohol % Labatt special “lite beer” – too much alcohol Law regulating held ultra vires as applied to malt liquor which means

regulating a single industry (beer production) Act read down so as to not regulate malt liquor

In general, regulations concern themselves with single industries. Laskin CJC dissents – emphasized scheme of legislation as a whole as about

fixing standards about all products – competitive advantages etc. Labatt can really be read both ways and it is not a clear case, and hence GM

clarified.

General Motors of Canada v. City National Leasing1989 SCC pg 396

About combines investigation act Unanimous judgement upholding the legislation Test for constitutional analysis:

1. Does provision intrude on provincial powers? And if so, to what extent?2. Is the act itself valid? (If not, that is the end of the inquiry.) – the 5 GM

indicia – not exhaustive list and not all have to be met Impugned provision must be part of general regulatory scheme Regulatory scheme must be monitored by continuing oversight of

regulatory agency Legislation must be concerned with trade as a whole rather than

just a particular industry Legislation should be of a nature that the provinces jointly or

severally would be constitutionally incapable of enacting Failure to include one or more provinces or localities in a

legislative scheme would jeopardize the successful operation of the scheme in other parts of the country

3. If the act is valid, is the impugned provision sufficiently integrated into the scheme that it can be upheld by virtue of the relationship?

Distinguished from Labatt – more general

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Reference re Securities Act (Can)2011 ABCA Supplement

Fed legislation looking to regulate securities Both sides proposed pith and substance is regulating public market

transactions. Case law shows this has generally been matter of property and civil rights

Feds argued it has concurrent jurisdiction and law is ok under double aspect. Puts heads of power as criminal and trade and commerce

Court decides not criminal and fails to meet test put forth in GM for T&C as it doesn’t apply to trade as a whole and that provs are capable of regulating the industry. Despite opt-out option – no need for federal regulator.

For cooperative scheme to be constitutionally valid, leave day-to-day regulations to provinces and leave aspects truly federal to Parliament – this scheme does not do this.

Federal Powers over Criminal LawDefinition of Criminal Law

Viscount Haldane (1922) – “where the subject matter is one which by its very nature belongs to the domain of criminal jurisprudence” very narrow approach to criminal law – froze the law to what was criminal in 1867

PATA Lord Atkin (1931) – “The criminal quality of an act cannot be discerned by intuition, not can it be discovered by reference to any standard but one: is the act prohibited with penal consequences?” direct rebuke to Haldane – very broad approach to criminal law power

now, 3 aspects for something to be criminal law – Margarine Reference Justice Rand (1949) – prohibition, penalty, and “typically criminal purpose”

Reference re Validity of Section 5(a) of the Dairy Industry Act (Margarine Reference)1949 SCC pg422

Margarine prohibited. Act met PATA requirements of prohibition and penal consequences.

[pg422] “A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened”

criminal purpose = public peace, order, security, health, and morality (p.423) pith in substance the Act was economic legislation, and since it only protected

dairy industry it was particular deals with matter solely within province; protection of one particular industry is property and civil rights

that is not to say that economic matters cannot be criminal law

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RJR MacDonald Inc. v. Canada (Attorney General)1995 SCC pg425

Advertising of tobacco products prohibited ad must display health warnings. purpose: reduction of tobacco consumption and protection of public health

not a colourable attempt because to actually prohibit smoking is impractical – the evil addressed by controlling ads is the same evil that would have been addressed if the legislation banned tobacco consumption directly

3 major arguments raised by tobacco companieso there is no affinity with a traditional criminal law concern

RJR: both tobacco consumption and tobacco advertising have always been legal in Canada; this is not a matter which is criminal in nature

Court: what is criminal is not frozen in timeo one cannot criminalize something ancillary to an evil without

criminalizing the evil itself RJR: it cannot be a valid use of the criminal law power to prohibit

something which is ancillary to an act when the act itself is legal Court: Parliament can use what circuitous route they choose as

long as the purpose is constitutionally valido one cannot have exemptions to criminal conduct

RJR: because there are exemptions permitted, i.e. foreign periodicals can contain tobacco advertising and be sold in Canada

Court: can make exemptions without losing the legislation’s criminal law status

Held: it’s a valid use of criminal law power but violates freedom of expression. Clause was severed from the rest of the legislation (can only do this if it’s not sufficiently integrated with the matter).

R. v. Hydro-Quebec1997 SCC pg433

Company charged under environmental protection Act after releasing PCBs. Legislation was challenged and upheld – protection of the environment is a

public purpose – supports federal law under criminal law power. La Forest for the majority finds that the pith and substance of the legislation at

issue was directed at a public evil; prohibiting with penal consequences the release of certain toxic substances into the environment.

Dissent – This is a regulatory scheme in pith and substance (extensive schemes are more likely to be regulatory). Government is criminalizing in order to regulate, and if anything should be using POGG.

Reference re Firearms Act5

2000 SCC pg 445

5 This case is a good example of how to approach a federalism analysis.

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In 1995 Feds amended criminal code to add Firearms Act, requiring licensing gun owners and registering guns. AB appealed for reference saying it violates property and civil rights.

Alberta arguments: o this is a regulation, not criminal prohibition

Alberta: the complexity of the law and the power that is granted to the chief firearms officer are hallmarks of a regulatory scheme

Court: prohibition and penalties not tied to ensuring compliance stand on their own, unlike regulations

o the only way to achieve Parliament’s ends would be by complete ban Alberta: this scheme is not direct, and permits exemptions; it is

misuse that should be the target of the legislation, not use Court: RJR v MacDonald – Parliament may use indirect means to

meets its ends exemptions do not prevent a law from being criminal

o property and civil rights Alberta: this is the regulation of private property; and is

analogous to automobile regulation schemes or land titles registries

Court: guns mostly pose safety risks – whereas cars are about transport (responding to Alberta’s analogy); Parliament can legitimately legislation in one area and not the other

o upsets the balance of confederation Alberta: they argue that when looking at the effects of the law,

this is more than an incidental intrusion into property and civil rights

Court: presumption of constitutionality leaves the burden up to Alberta – they have not established the effects are more than incidental on property the act does not hinder Alberta from enacting other legislation on guns, and this is not a new entry into the field – gun control has been feds power for a long time

o moral content required Alberta: this cannot be criminal – it is not immortal to own a gun Court: this does not alter the fact that the legislation is aimed at

misuse of guns – curbing immoral acts and criminal law is not just about curbing immoral acts, but

can be used for all sorts of issues (ex. marketing competition)

issue of Aboriginals and their firearms rights not before the court

SCC unanimous – it’s valid to restrict access to inherently dangerous things, and the effect on property is incidental. Not regulatory – was enforced by prohibition and penalty.

The legislation has a purpose, prohibition and penalty that fits with the criminal law model.

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Provincial Regulation of MoralityKey test: where the provincial offence cannot be safely anchored in property and civil rights or some other head of provincial power, then it will likely be invalid.

Nova Scotia Board of Censors v. McNeil1978 SCC pg452

Ratio: legislative regime must be criminal in form – not enough to have the criminal purpose; Provinces have broad powers to enact penal laws as long as they are primarily regulatory and preventative; there is a double aspect to morality. Provincial authority may extend to objects where moral considerations are involved, but the objects must be within provincial jurisdiction, and not in conflict with valid federal legislation.

o s.92(16) requires distinction between valid provincial law on morality, and provincial law that intrudes on criminal power but the line is blurry

Province enacted regulatory scheme for regulating films At outset – can a private citizen who is (arguably) not directly affected

challenge the law? Private citizen says it’s criminal law and therefore ultra vires federal

government. 5/4 say it’s intra vires federal government. Ritchie – it’s about supervision and

control of film business in the province. Concerned with dealings and use of property

pith and substance: use and exhibition of films in Nova Scotia – local matter about regulating a business in a province so that no films are showed that do not meet local standards

Law is preventative (really is an administrative process imposing a system of prior restraint on material deemed to be offensive by public officials), not penal.

Agrees with Lord Atkin in PATA, “morality and criminality are far from co-extensive and it follows in my view that legislation which authorizes the establishment and enforcement of a local standard of morality in the exhibition of films is not necessarily an invasion of the federal criminal field”. Pg454

Dissent – (Laskin) Board is asserting authority to protect public morals and prevent exposure to obscene or indecent materials. Laskin sees this law as direct intrusion into criminal law – determination of what is fit and acceptable conduct is under federal criminal law power. Cancellation of license is a penalty.

One part of Act was invalidated about obscene material. Determined wording almost identical to criminal code.

Dupond v. City of Montreal et al.1978 SCC pg455

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Bylaw enacted at time of protest/public unrest. Temporary ban on public gatherings to prevent riots. Penalty includes prison.

Found intra vires – nature of law is local, temporary, limited, preventative, and regulatory, not penal.

Dissent – Laskin – Criminal in nature as it’s about protecting public order: free citizens should not be alarmed by public law.

Westendorp v. The Queen1983 SCC pg 456

Trend reversed, Laskin unanimous judgement striking down prostitution law in Calgary. AB CA followed authority from previous cases that it was valid – purpose was to protect users of streets from prostitutes and clients.

Laskin – purpose to control/punish prostitution not street safety. Idea it’s part of nuisance law rejected – pith and substance is to punish prostitution (because if by-law had really been about the streets, the content of the conversation would have been irrelevant)

Compared to Dupond – but that law was brief and general Colourable law – could have used nuisance law if needed.

Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board)1987 SCC pg 458

Licensing provisions for nudity in bars. It’s ok as long as it’s about licensing, not penalty.

Does condition relate to morality? Obscenity or entertainment as marketing (economic)

Westendorp as colourable vs. comprehensive scheme. Ok for Province to enact penal laws when attached to a license No conflict between law and criminal code.

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