CONSTITUTIONAL LAW – FALL 2013 OUTLINE
I. INTRODUCTION TO CANADIAN CONSTITUTIONAL LAWa. WHAT IS A CONSTITUTION?
i. What is a Constitution? A set of fundamental principles that describe the organizational framework of the state and the nature, scope, and limitations on the exercise of state authority
ii. What is Federalism? Canada has a federal constitution In a federal system, sovereignty is divided between two orders of
government, with each level of government being restricted to the areas of jurisdiction assigned to it, and neither being able to control or direct the activities of the other
In a federal system, the distribution of powers between the national and local governments is exhaustive, in the sense that there are no fields of jurisdiction that are not distributed to either the federal or the local level of government
iii. Elements of the Canadian Constitution The Canadian constitution includes a core set of documents and
provisions that are constitutionally entrenched These core documents include:
1. The Constitution Act, 18672. The Canadian Charter of Rights and Freedoms3. Identified in the Constitution Act, 1982
iv. Sources of the Canadian Constitution 1. The Common Law
Case Law Aboriginal Rights Parliamentary Privilege Prerogatives
2. Statutes Ordinary Canadian Statutes Ordinary British Statutes Canadian Constitutional Statutes
3. Conventionsb. THE NATURE OF CONSTITUTIONAL LAW
i. Unwritten Principles of the Canadian Constitution 1. Federalism2. Democracy3. Constitutionalism and The Rule of Law4. Protection of Minorities5. Aboriginal Rights
ii. Reference Re Succession of Quebec (SCC, 1998) There are 4 unwritten constitutional principlesThree questions posed by the Federal government
1. Did Quebec have the right under the Canadian constitution to declare its sovereignty from Canada unilaterally
2. Whether international law permits Quebec to unilaterally secede from Canada
3. Whether domestic law or international law would prevail in Canada in the event of a conflict between them
Question 1: NO Secessions legally possible through a constitutional amendment
under section 41 Court confirmed that the secession of Quebec would require an
amendment to the Constitution of Canada and that such an enactment could not be enacted by the province acting unilaterally
However, the federal government would have a constitutional duty to negotiate secession following a clear majority favouring this option on a clear referendum question
Constitution based on four general principles:1. Federalism2. Democracy3. Constitutionalism4. Rule of law
The court relied on the unwritten principles of democracy and federalism to create a constitutional duty
This reliance on unwritten principles may effectively rewrite the text of the constitution
The Court’s reasoning should be interpreted as supporting the use of unwritten constitutional principles only when they are necessarily implied by the constitutional text
Question 2: NO Sovereigntists in Quebec had traditionally argued that although
secession may be prohibited under domestic Canadian law, the international law principle of self-determination of people justified unilateral secession
Even if the right of self-determination might give rise to a right of secession, these circumstances clearly did not apply to or exist in the case of Quebec
The argument on Question 2 was based on two unrelated propositions
1. Although international law did not grant any positive entitlement to secede from their host states to sub-national units, it did not prohibit attempts at secession. The issuance of a unilateral declaration of independence was therefore not a breach of any rule of principle of international law
2. Effectivity principle: the sole legal criterion according to which an attempted secession is judged under international law is its political success or effectiveness
The court argued against the first point by stating that the failure to reach agreement on constitutional amendments following the patriation of the Constitution in 1982 did not place Quebec in a disadvantage position within the scope of the international law rule
As for the second question the Court pointed out that unilateral secession might eventually be accorded legal status in Canada in the sense that if secession “is successful in the streets it might well lead
to the creation of a new state”. However, this does not support the more radical point that it could be taken to mean that secession was achieved under colour of a legal right
Question 3 Unnecessary to answer since both systems were consistent with
each other on the issues raisedc. METHODS OF CONSTITUTIONAL ARGUMENT
i. Judicial Review and Legitimacy When an individual seeks to challenge the validity of government action before the courts, that person is usually described as an application for judicial review
The individual argues that there was no legal authority for the decision or action and that it was therefore unlawful
Some of the most significant and far-reaching Charter decisions of the Supreme Court have been based on the guarantee of life, liberty, and security of the person under section 7
o In Canada (Attorney General) v. PHS Community Services Society the Court held that the Minister of Health’s refusal to provide an exemption from the possession provisions under the Controlled Drugs and Substances Act violated section 7 rights of users of a safe injection site in Vancouver
Types of argumentso Historical argument (purposive)o Textual argument (originalist)o Structural argument (analogy)o Prudential argument (costs and benefits)o Doctrinal argument (precedent)o Ethical argument (ethos)
II. PRINCIPLES OF INTERPRETATIONa. EVOLUTION OF THE DIVISION OF POWERS
i. Values Informing the Division of Power The BNA Act, now the Constitution Act of 1867, stated that a
general parliament for Canada was to be established with authority to enact laws for the “peace, welfare, and good government of the Federated Provinces”
A detailed list of 37 specific subject matters that were especially assigned to the General Parliament was also included, most of which were later included in section 91 of the BNA Act: regulation of trade and commerce, the raising by any mode of taxation, defence, criminal law, currency and banking, shipping, and interprovincial works
There was also a listed of provincial powers The provinces were granted power to enact laws in relation to
property and civil rights The BNA Act did not properly address how the roles and
responsibilities would be shared between different levels of government
It largely fell to the courts to structure a division of powers for Canada
ii. Citizen’s Insurance v. Parsons (PC, 1881) The JCPC’s Watertight Compartments View
The leading case of section 91(2) Case involving a challenge to an Ontario statute regulating
the terms of insurance policies First asked whether the Act fell within section 92, and found
that it dido But it could also be argued to be within section
91(2): regulation of trade and commerce This conflict could not have been intended and the two
sections must be read together in order to avoid any apparent overlap
The analysis of federal trade and commerce power has been interpreted as establishing two distinct branches
1. The dividing line is based on a distinction between interprovincial and export trade on the one hand and local trade on the other. The provinces have power to regulate trade within the province, while Parliament has power to regulate trade between provinces or with foreign states
2. “general regulation of trade and commerce”-less clearly defined, seems to invite an assessment of the relative importance of an economic activity to the national economy
Privy Council almost ignored the second branch entirely because they preferred categorical reasoning
The case was resolved on the simple and straightforward basis that the trade and commerce power does not authorize regulation of a particular trade in which Canadians would otherwise be free to engage in the provinces
Act applied to insurance companies whose business was conducted entirely within particular provinces
The federal government was ultra vires This interpretation of section 91(2) was precisely the
opposite of that intendediii. Russell v. The Queen (PC, 1882)
The Pith and Substance Doctrine Early but short lived trend of broad federal power Validity of the Canada Temperance Act, a federal statute
permitting local areas to prohibit the sale of intoxicating liquor
Individual charged argued that the statute was constitutionally invalid because it dealt with property and civil rights, which was a provincial matter
The fact that liquor could be held as property did not prevent Parliament from restricting its use when this was deemed dangerous to public health or safety
Parliament could enact laws under the POGG power that incidentally affected property and civil rights as long as it did for a valid purpose
In assessing the validity of legislation, it is necessary to determine the statute’s true nature and character. This can only be ascertained by considering the underlying purpose or objective of the legislation
Russell was significant because it represented the first attempt to articulate what came to be known as the pith and substance doctrine
If a federal law is, in pith and substance, in relation to a federal head of power, then the law may have incidental effects on a provincial head of power without being rendered invalid (and vice versa)
o The pith and substance doctrine focuses on the purpose of the legislation, rather than its incidental effects
Opens the door to substantial overlap in jurisdiction precisely because it ignores the incidental effects of legislation in determining constitutional validity
if incidental effects were to be regarded as the primary focus of the analysis, the federal POGG power would be rendered insignificant
The pith and substance doctrine would allow Parliament to legislate on matters of national importance, even though such laws would also inevitably have incidental effects on property rights in the provinces
iv. Hodge v. The Queen (PC, 1883) The Double Aspect Doctrine: subjects that for within one aspect fall within s.92 can for another aspect fall within s.91
The Privy Council upheld an Ontario statute regulating the sale of liquor
Subjects which in one aspect and for one purpose fall within section 92, may in another aspect and for another purpose fall within section 91
While it was true that Parliament could enact temperance legislation to deal with federal aspects of the problem, the provinces could enact legislation dealing with its local aspects
The legislation was entirely local in its character and operation, and did not interfere with federal legislation on the same subject
The aspect doctrine essentially asks whether Parliament or the provinces have a sufficient interest in a particular social or economic problem such that they should be permitted to regulate it
The JCPC saw the aspect doctrine as a problem because it seemed to embroil the judges in political decision-making
v. Local Prohibition Reference (OC, 1896) Federal POGG Power, paramountcy issue when double aspect doctrine is applied
Until this case the precise relationship between POGG and the enumerated heads of power in section 91 had not been clearly settled
2 views of POGG1. Broad view: POGG constituted the general grant of
power to Parliament, and the enumerated heads were illustrative only (supported by Russell)
2. Narrow view: gave primacy to the enumerated powers in both sections 91 and 92, and relegated POGG to a purely residuary position. In this view POGG was only applicable to matters that did not fall within s. 91 or 92
In the Local Prohibition Reference Lord Watson opted for a narrower view, making a clear distinction between POGG and section 91
POGG needed to be strictly confined to such matters as are unquestionably of Canadian interest and importance, and not ought to trench upon any of the powers enumerated in section 92
The pith and substance and aspect doctrines could not be applied to support legislation enacted under POGGo Could not “encroach upon” or “incidentally affect”
matters under section 92 Significantly limited scope of POGG power, not used much
afterwardsvi. The Early 20 th Century
POGG powers were narrowed even further Effectively marginalized the aspect doctrine and POGG
powers so that they could not be used to uphold federal legislation in “normal circumstances” (Reference Re Board of Commerce Act)
b. DEPRESSION AND THE NEW DEAL vii. Reference Re Aeronautics (1931)
Aerial navigation falls within s. 91viii. Reference Re Radio
ix. Depression and the New Deal From the JCPC’s point of view the emergency doctrine of
POGG constituted a clear bright line that made the task of delineating it simple
In 1938 the federal government initiated discussions with the Provinces and the BNA Act was enacted by Westminister in 1940
c. PITH AND SUBSTANCE
i. Pith and Substance Doctrine In order to determine whether particular laws enacted by
Parliament or the provincial legislatures are valid, the courts have applied what has been termed the “pith and substance” doctrine
The doctrine has two steps:1. Requires the court to determine the “pith and
substance”of the law2. Involves a determination of how the law fits within
the heads of power set out in the Constitution Act, 1867
The court determines the pith and substance of the law by examining both the purpose of the law and its effects
ii. R v. Morgentaler (SCC, 1993) Federalism Pith and Substance Test
Emphasis on the form of legislation, as opposed to its underlying purpose or function
Supreme Court struck down criminal code provision for abortions
The Province of Nova Scotia enacted the Medical Services Act prohibiting abortions and made contravention of the Act a summary conviction offence
The Supreme Court struck down the provisions The majority argued that a province cannot invade the
criminal field by attempting to stiffen, supplement or replace the criminal law
It is in “pith and substance” criminal law, which is under the federal heads of power
Pith and substance test1. What’s the matter or the mischief that the legislation is intended to respond to (pith and substance)?2. What is the purpose and effect of the legislation?3. What is the scope of the applicable heads of power (ss. 91 and 92 of the Constitution Act 1867)?
Colourability: where a statute is in appearance, but not in substance, what it claims to be. (When a level of the government passes legislation saying that they doing so for one reason, when it is really for another)
iii. Reference Re: EI (SCC, 2005) Have to take into consideration changing times and expand government powers accordingly; “living tree”
The pith and substance doctrine tends to result in the enactment of overlapping federal and provincial legislation
The doctrine permits both levels of government to enact legislation with similar effects, as long as the purposes being pursued are distinct
Provided that the courts are able to characterize the laws as having distinct purposes, and provided that each law has a
purpose that is in relation to a legislative power conferred on the enacting legislature, both laws will be upheld
d. OVERLAP AND INTERJURISDICTIONAL IMMUNITY i. Ancillary Powers/Necessarily Incidental
Way to decide federalism cases without exclusive reference to the pith and substance doctrine
In cases where a constitutional challenge is brought against a particular provision in a statute as opposed to the statute as a whole
3 step process:1. Consideration of the impugned provision to ascertain
whether it intrudes on the jurisdiction of the other level of government
2. Whether the impugned provision is contained within a valid regulatory scheme
3. The fit between the impugned provision and the valid regulatory scheme
The point of the analysis was that, even when a particular provision of a law intruded on the jurisdiction of another level of government, it may still be upheld if it can be characterized as being ancillary or necessarily incidental to an otherwise valid regulatory scheme
The extent of the intrusion is the important factor Where the intrusion is small it may be sufficient for the
impugned provision to be “functionally related” to the regulatory scheme
If the intrusion is more significant, the test for validity will be stricter and the enacting government will be required to demonstrate that the provision in question is necessarily incidental or truly necessary to the regulatory scheme as a whole
ii. Double Aspect In cases where Parliament and the provinces have enacted virtually identical laws for similar purposes, the courts have on some occasions upheld both laws on the basis that the subject matter has a “double aspect” In cases where Parliament and the provinces have enacted
virtually identical laws for similar purposes, the courts have on some occasions upheld both laws on the basis that the subject matter has a “double aspect” (Multiple Access Ltd v. McCutcheon)
iii. Interjurisdictional Immunity Provides that certain entities may be immune from the application of valid laws. Although the law remains valid and generally applicable, the law is “read down” by the court such that a particular person or entity is exempt or immune from the law’s application
There is a “core” of legislative powers that cannot be encroached upon by laws enacted by the other level of government
The doctrine of interjurisdictional immunity is an exception to the pith and substance doctrine
iv. Lacombe (SCC, 2010) Ancillary Doctrine The incidental affects rule applies when a provision, in pith
and substance, lies within the competence of the enacting body but touches on a subject assigned to the other level of government. It holds that such a provision will not be invalid merely because it has an incidental effect on a legislative competence that falls beyond the jurisdiction of its enacting body
The by-law was not saved by the ancillary powers doctrine, because the ban being imposed was not rationally or functionally connected to the by-law
v. Pilots Association (SCC, 2010) It is now settled that the test is whether the provincial law impairs the federal exercise of the core competence
e. PARAMOUNTCY i. Operability
The courts have developed the doctrine of federal paramountcy to deal with the situation in which federal and provincial laws conflict
The paramountcy doctrine provides that when there is a conflict, the federal law prevails
The provincial law is rendered inoperative to the extent that it is inconsistent with the federal law
There are two types of conflict that may engage the doctrine of paramountcy
1. Operational conflict: it is impossible for a citizen to simultaneously comply with valid provincial and federal laws
2. The application of the provincial law may frustrate the purpose of a federal enactment
Early cases assumed that the doctrine of paramountcy was limited to cases of true operational conflict. Therefore, even though a federal and provincial law might be pursuing conflicting purposes, both laws would be upheld if it were possible for private citizens to comply with each (Ross v. Registrar of Motor Vehicles)
If the provincial legislation is held to be in conflict with the purpose of federal legislation, it becomes inoperable (Mangat)
If it is possible to comply with both the federal and provincial statutes (by complying with the stricter provincial statute) and there is no conflict in the underlying legislative purposes,
there is no conflict between the statutes and the provincial statute remains operative (Rothman, Benson & Hedges)
ii. Multiple Access Ltd v. McCutcheon (SCC, 1982) Double Aspect Doctrine Operational conflict occurs where there is an express
contradiction between the two laws, such that compliance with one necessarily involves a breach of the other
o Where one enactment says yes and the other says no The Court in Multiple Access held that federal and provincial
laws regulating insider trading did not conflict since it was possible to comply with both laws simultaneously
III. PEACE, ORDER AND GOOD GOVERNMENT HISTORICAL DEVELOPMENT
i. Historical Development of POGG Parliament is authorized to enact laws for the Peace, Order,
and Good Government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces
The JCPC adopted a narrow interpretation of POGG Since matters in section 92 were automatically subtracted
from the purely residual POGG power, POGG was rarely invoked as a basis for upholding federal laws by the JCPC
By the 1920s, POGG had been reduced to essentially an emergency power, available only in cases of war or other similar national crises
The Supreme Court had broadened the scope of the POGG power somewhat
There are now three branches that can be relied on to support federal legislation
1. Emergency Power (established by the JCPC)2. Gap or residual power of POGG: the power to
legislate in relation to matters not included within any of the enumerated classes of subjects in sections 91 or 92
3. National Concern Branch: the power to legislate in relation to distinct matters of inherent national concern
ii. Reference Re Anti Inflation Act (SCC, 1976) There is a difference between the national concern and emergency branches. Must be explicit when using emergency branch of POGG power.
National concern – when applied effect is permanent, but limited by the identity of the subject newly recognized to be of national dimension
Crisis/Emergency – power to make laws knows no limit other than those dictated by the nature of the crisis, but the limits are temporary
Federal government in the fall of 1975 wanted to impose a comprehensive program of control on wages, prices, and profits
The regulation of such intraprovincial activities or transactions had always been regarded by the courts as falling within exclusive provincial jurisdiction, pursuant to the property and civil rights power in section 92(13)
A number of public sector unions launched a constitutional challenge to the legislation on the basis that it regulated matters coming within the exclusive jurisdiction of the provinces
The federal government’s main constitutional argument was that inflation was a problem of inherent national concern and, therefore, the legislation could be justified under the national dimensions branch of the POGG power
The Court rejected this argument but held that the legislation could be supported on the basis of the emergency branch of the POGG power
The court appeared to assume that the burden was on the parties challenging the legislation to establish that inflation did not constitute a national emergency
It would also be necessary to find that Parliament did not have a “rational basis” for regarding inflation as a national emergency
The legislation was also temporary, which supported the validity of the Act as an emergency measure
The controversy was that Parliament had tried to use national concern, and not national emergency
The dissent said that Parliament could not rely on the emergency power unless it clearly declared the existence of an emergency
o The majority argued that Parliament did not have to use the word “emergency”
Some argue this allows Parliament to apply the emergency power at will
o Overstated given the Court’s limited ability to determine the existence of an emergency situation requiring legislative intervention
RECENT DEVELOPMENTS i. R v. Crown Zellerbach Canada (SCC, 1988)
Matter of national concern has singleness, distinctiveness or indivisibility that distinguishes it from matters of a provincial nature
The Supreme Court held that marine pollution was a single matter of national concern
The majority set out the following 4 propositions that were “firmly established” by the earlier cases:
1. The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order, and good government power
2. The national concern doctrine applies both to new matters which did not exist at the time of Confederation as well as to matters which, although originally matters under provincial jurisdiction, have since become matters of national concern
3. To qualify as a matter of national concern, a matter must have “a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution”
4. It is relevant to consider what would be the effect on extraprovincial interests of a failure to deal effectively with the control or regulation of the intraprovincial aspects of the matter
Newness: if a subject has only recently emerged into public debate, it is unlikely that the provinces will have a firmly entrenched claim to jurisdiction over it. Thus, placing such a matter under federal authority will not intrude onto areas of established provincial jurisdiction, nor will it upset the existing equilibrium of the constitution
Distinctiveness: federal legislation be aimed at a matter that has defined boundaries, so that recognizing this matter as subject to POGG will not unduly interfere with or negate existing provincial regulatory powers
Provincial Inability Test: focuses on the effects in other provinces of a failure by one province. It is not a necessary condition for the national concern branch of POGG
ii. R v. Hydro-Quebec (SCC, 1997) Protection of environment is a valid criminal law purpose
The federal government sought to uphold provisions of the Canadian Environmental Protection Act, dealing with the regulation of toxic substances on the national concern branch of POGG
The majority of the court upheld the provisions on the basis of the criminal law power and did not consider POGG
The dissent, however, found that the legislation could not be justified on the basis of the criminal law power
They went on to find that the environmental provisions at issue lacked the singleness and distinctiveness necessary to be supportable under the national concern branch of POGG
They also held that provisions did not meet the provincial inability test
iii. Friends of the Oldman River v. Canada (Minister of Transport) (SCC, 1992)Distinctiveness
Argued that the provinces had exclusive jurisdiction over certain aspects of the environment and that a federal environmental assessment scheme was therefore ultra vires on inapplicable to provincial projects
The court stated that the environment was an all-encompassing category that lacked the necessary definition to serve as a constitutional category under sections 91 or 92
This meant that either levels of government could pass laws with environmental purposes or effects
The federal legislation must be aimed at a matter that has defined boundaries, so that recognizing this matter as being subject to POGG will not unduly interfere with or negate existing provincial regulatory powers
IV. ECONOMIC REGULATION (TRADE AND COMMERCE) PROPERTY AND CIVIL RIGHTS
i. Property and Civil Rights The most important power assigned to the exclusive
jurisdiction of the provincial legislature The Privy Council held that any laws regulating or dealing
with legal right in a province fell within the subject of property rights (pretty much everything except for criminal law)
Enumerated categories in section 91 were upheld even though they had an incidental impact on property and civil rights
It was interpreted to authorize any provincial regulation over any transaction or activity that occurred within the province
The Privy Council upheld a statute with powers to control the marketing of a natural product in BC on the basis that it applied only to transactions that would be completed within the province (Shannon)
ii. Provincial Powers over Economic Regulation Since Parsons it has been accepted that, in general,
intraprovincial trade and commerce is a matter within provincial power, and the federal trade and commerce powers is confined to interprovincial and international trade and commerce, and “general” trade and commerce
Provinces can indirectly affect extra-provincial trade by decisions which affect cost of production, or decisions which affect retail sales within a province
Provincial regulatory schemes are likely invalid if they directly affect extra-provincial movement by limiting production.
Expansive interpretation of provincial trade powers
One potential difficulty is that provinces might impose conditions or restrictions that favour local producers and effectively bar the sale of cheaper or more desirable imported goods
Provinces have a political incentive to establish discriminatory schemes because local producers may be less organized and lack political clout in the province (Manitoba Egg Reference)
One of the underlying objectives of the confederation was to make sure Canada would operate as a single market
Provinces are not permitted to impede the free flow of goods, services, labour, and capital across provincial borders
iii. Canadian Egg Marketing Agency v. Richardson (SCC, 1971) legislation was aimed at the regulation of interprovincial trade, ultra vires provincial powers
The legislation not only “affects” interprovincial trade but was aimed “at the regulation of such trade” and was therefore unconstitutional
Ultra vires the provincial powers Designed to restrict or limit the free flow of trade between
provinces Constitutes an invasion of the exclusive legislative authority
of the Parliament over trade and commerce Some argued it was indistinguishable from Carnation But decision was right, otherwise provinces could under
section 92(13) erect protectionist and discriminatory barriers creating 10 separate economies in Canada
iv. Carnation Co v. Manitoba Egg and Poultry Association (SCC, 1968) In “pith and substance” the regulation of a local transaction, the effects were not relative, intra vires provincial powers
Expansive approach to provincial jurisdiction over trade matters carried forward from the Privy Council
While the provincial legislation might affect interprovincial or export trade, this was not it’s primary purpose
The main object, or the pith and substance of the law, was the regulation of a local transaction
v. Reference re Agricultural Products Marketing Act (SCC, 1978) Federal legislation with effects on local trade upheld due to cooperation
Court upheld a federal legislation that regulates local trade where the federal legislation is part of a comprehensive and cooperative federal-provincial marketing scheme
The federal regulation of local trade was reinforced by provincial legislation, which mirrored the requirements of the federal law
The existence of a provincial law should, strictly speaking, be irrelevant to the constitutional validity of a federal law
Legislation upheld despite its effects on local trade due to the cooperation between the federal government and provinces
vi. Provincial Jurisdiction over Natural Resources Extended the more restrictive approach to provincial powers
setout in the Manitoba Egg Reference Section 92(A) was introduced to undo the decision in Central
Canada Potash by giving explicit power to provinces to enact laws in relation to the primary production of natural resources found within the province
vii. Canadian Industrial Gas & Oil v. Saskatchewan (SCC, 1978) legislation was ultra vires provincial powers because ultimate aim was a matter outside the province (opposite of Carnation where the true nature of legislation was irrelevant)
The province of Saskatchewan enacted legislation imposing a royalty surcharge on oil produced in the province
CIGOL produced crude oil in Saskatchewan, and virtually all its product was then exported
CIGOL argued the surcharge would affect the price of its product in the extra-provincial market, and the legislation intruded on trade and commerce
Similar to Carnationgood destined for export Difference: scheme was driven by and structured around
international market events Opposite conclusion from Carnation Reinforced by Manitoba Egg Reference, it was clearly no
longer open to a province to assume that legislation that fastened on a transaction occurring within the province was automatically valid, it mattered whether the ultimate aim of the legislation was a matter outside the province
viii. Central Canada Potash (SCC, 1978) True nature of legislation was to regulate the export market, ultra vires provincial powers
Similar approach to CIGOL Saskatchewan tried to stabilize the North American market
for potash by limiting production Argued that property and civil rights gave them power to
impose controls on production of natural resources within the province
Purpose of the legislation was to stabilize international prices
FEDERAL POWERS OVER ECONOMIC REGULATION i. Regulation of Interprovincial and International Trade
Parliament has exclusive legislative authority to regulate international and interprovincial trade
Provincial jurisdiction is limited to the regulation of trade within a province
Doubts have risen about Parliament’s ability to regulate local and intraprovincial trade (Margarine Reference)
ii. Federal Powers Over Economic Regulation The Privy Council ruled that Parliament may not directly
apply controls on the production or local marketing of a product even if such local regulation is merely incidental to a scheme aimed at controlling interprovincial or international trade
The inability to control local production or trade effectively precluded the federal government from regulating trade at the interprovincial or international level
The Caloil case is the SCC early departure from the Privy Council’s restrictive approach
The fact that the regulations might affect local transactions in the imported product did not change the fact that they were in pith and substance aimed at international tradeintra vires federal government (Caloil)
iii. The Queen v. Klassen (SCC, 1960) The Federal government can regulate an entire industry in
order to regulate the extra-provincial/export portion of the industry
iv. Labatt Breweries of Canada v. AG Canada (SCC, 1980) Regulation of a single trade/industry is not of great national concern and national ownership of a trade or undertaking or national advertising of products are not sufficient to authorize the imposition of federal trade and commerce legislation
First branch of Parsons (fed power over interprovincial/export trade) was not applicable as the impugned regulation was concern with local sale and production
Second branch of Parsons (general trade power) was inapplicable→ Regulation of a single trade/industry is not of great national concern→ National ownership of a trade or undertaking or national advertising of products are not sufficient to authorize the imposition of federal trade and commerce legislation
Provisions were concerned with production in a single industry that was substantially local in character
v. General Motors of Canada v. City National Leasing The Revival of the General Trade and Commerce Power
Comprehensive and important restatement of the jurisprudence on the second branch of the trade and commerce power (Parsons Test)
5 part test1. the impugned legislation must be part of a regulatory
scheme2. the scheme must be administered by the continuing
oversight of a regulatory agency
3. the legislation must be concerned with trade as a whole rather than with a particular industry
4. the legislation should be of a nature that the provinces jointly or severally would be constitutionally incapable of enacting
5. the failure to include one or more provinces or localities in a legislative scheme would jeopardize the successful operation of the scheme in other parts of the country
Described as a five part checklist which is an indication of validity under the trade and commerce power
This case was to determine whether the Combines Act could be upheld under trade and commerce power as oppose to criminal law power, to place a greater emphasis on regulation as opposed to criminal sanctions
Held that the legislation met all 5 parts of the test and was supportable under the second branch of Parsons
vi. Reference re: Securities Act (2011) Act must be filling a gap in order to be valid under the second branch of the trade and commerce test
It has been argued that proposals for federal securities legislation and a national regulator can be upheld as constitutionally valid under the second branch of the trade and commerce power
Others argued that it fell within section 92(13) and 92(16) matters of a merely local or private nature
The court held it was unconstitutional The court cautioned against an overly broad application of
the second branch of the trade and commerce power The court said the matter must be genuinely national in
importance and scope And must be something that the provinces, acting either
individually or together, would not be able to achievethere must be a gap the federal government is trying to fill
They also said the fact that a federal scheme would be more efficient was irrelevant
V. MORALITY AND THE CRIMINAL LAW FEDERAL POWERS OVER CRIMINAL LAW
i. Review: PATA Parliament has jurisdiction over criminal law in broad sense
– it can define what is criminal conduct, based on what violated generally accepted norms of conduct in the era
ii. Federal Powers Over Criminal Law Privy Council held that in order for legislation to be valid
under the criminal law power, there must be a prohibition coupled with a penalty (Margarine Reference added a third criterion)
Differs from POGG and Trade and Commerce in that it can be read more broadly
iii. Reference re Validity of Section 5(1) of the Dairy Industry Act (SCC, 1949) Federal legislation not valid under criminal law power because the Act did not have a criminal purpose
In order for legislation to be upheld under section 91(27) it must contain 3 elements:
1. A prohibition2. Backed by a penalty3. With a valid criminal law purpose
Found that a provision of the Dairy Act Industry could not be upheld under the criminal law power
It met the first two elements, but not the third, it was for an economic purpose
Trade purpose, not criminal purposeiv. RJR Macdonald v. Canada (SCC, 1995) Regulating public
health is a valid criminal law power Court upheld the Tobacco Products Control Act under
criminal law Act prohibited the advertising and promotions of tobacco
products Applied to all dealings with tobacco The court of appeal argued that Parliament cannot
criminalize an ancillary activity when the principal activity remained legal
Criminal law must be applied “in the widest sense possible” Since prohibitions were accompanied with penal sanctions, it
indicated that the Act is criminal law The legislation did not “colourably” invade areas of exclusive
provincial jurisdiction The court held that any law that takes the form of a
prohibition accompanied by a penalty will be valid as criminal law as long as it is directed at an identifiable matter of legitimate public concern
Health was considered a public concernv. Reference re Firearms Act (SCC 2000) The findings of a valid
criminal purpose is not enough to be classified as valid criminal law, there must be a prohibition backed by a penalty
Retreated slightly from the expansive approach to the criminal law power set out in RJR Macdonald
Reference regarding the constitutional validity of the federal Firearms Act
Parliament had expanded the Criminal Code provisions regarding firearms in 1995
Alberta argued that the amendments dealt with matters that did not raise legitimate concern relating to public safety, and were a colourable attempt to regulate property right of firearm owners
The SCC held that the legislation satisfied the three requirements of criminal legislation and was thus constitutionally justifiable on the basis of Parliament’s jurisdiction over criminal law
This case involved the presence of prohibitions backed by penalties
vi. Reference re: Assisted Human Reproduction Act (SCC 2010) Parliament need only have a reasonable basis to expect that its legislation will address a moral concern of fundamental importance to enact a criminal law
Contained prohibitions on various activities including cloning
The majority of the Court applied a very broad application of the criminal law power
PROVINCIAL POWERS TO REGULATE MORALITY AND PUBLIC ORDER i. Provincial Power to Regulate Morality and Public Order
Section 92(15) grants provinces the power to enact “quasi-criminal legislation”
The question when the provinces enact legislation that is also subject to criminal prohibitions found in the Criminal Code is whether they are making a colourable attempt to enact criminal legislation
ii. Nova Scotia Board of Censors v. McNeil (SCC, 1978) Provinces have broad powers to enact penal laws as long as they are primarily regulatory and preventative
Provincial legislation enacted controlling showing of films Found that provinces have broad powers to enact penal laws
as long as they are primarily regulatory and preventative Province can legislate where local moral matters are
involved, as long as provincial legislation does not conflict with valid federal legislation
iii. Westendorp v. The Queen (SCC, 1983) Prostitution is a federal law power
Calgary by law prohibiting prostitution by claiming by-law was to deal with a public nuisance
The SCC found that the by-law was trying to control or punish prostitution directly
iv. R v. Morgentaler (SCC, 1993) Emphasis on the form of the legislation, as oppose to its
underlying purpose or function Legislation prohibited abortions other than in a hospital Abortion historically part of the criminal law A province cannot invade the criminal field by attempting to
stiffen, supplement or replace the criminal law power
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